
    William H. Stevens v. William E. Pendleton and Willian D. Morton.
    [See 83 Mich. 342.]
    
      Release of surety — Directing verdict,
    
    On the rehearing of this case, it is held that the court erred in directing a verdict for the defendants.
    Error to Wayne. (Hostner, J.)
    Argued February 13, 1891.
    Decided April 15, 1891.
    
      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion, and in 83 Mich. 342.
    
      Barbov,r & Rexford, for appellant.
    
      Dickinson, TImrber & Stevenson, for defendants.
   Per Curiam.

This cause was heard and determined at the last October term, and the judgment below was affirmed. 83 Mich. 342. A motion was made for a rehearing, and upon reargument it appeared that the date of the commencement of the suit, which did not appear in the printed record and briefs, and which we did not take into consideration, had a material bearing upon the effect of certain material testimony upon which the case turned. We were of opinion that, while the proceedings to reform the lease were not conclusive as against defendant Morton, yet they were prima facie evidence of the mistake, and that the burden was upon Morton to show that the minds of the parties met as to the time of the payment fixed by the lease; and we then held that the testimony of the witnesses Pendleton and Woodruff had fixed the contract date of payment as it was in the lease before its reformation. A careful review of the testimony of these two witnesses, in the light of other facts brought to our attention, satisfies us that this testimony was susceptible of a different interpretation from that given to it, and that the question should have been submitted to the determination of the jury.

The court erred, therefore, in directing a verdict for defendants, and the judgment is reversed.  