McNeil

The argument having been concluded, Chief Justice Wallace, speaking for the court, said: “We think the instruction, which is the subject of the nineteenth exception, erroneous; it is as follows: ‘If you should find that the defendant was at this time under contract with Meyerstein & Co. to haul a certain amount of freight, for instance, fifty tons a month for the period of one year, that fact will go far toward clearing up any suspicion attaching to testimony *605 going to prove a contract, without other apparent reasons.’ ”

This instruction was not upon a question of law, but upon the matter of fact involved, and the weight of the evidence, which should be left to the determination of the jury.

Besides, the proposition is incorrect in itself. The plaintiff alleged in his complaint that he had entered into a contract with the defendant Barney to do certain hauling for the latter; the defendant in his answer denied the making of the contract. The first question to be determined, therefore, was, whether such a contract had been in fact made.

In order to lend probability to the plaintiff’s claim that the contract had been made, he was allowed to prove that the defendant was…