majority">Wilson, J.

Upon the trial in the court below, the plaintiff introduced evidence tending to show a purchase and sale of saltpeter as alleged in one or more counts of his declaration. The defendant admitted the non-delivery of the goods, but of- . ' fered evidence tending to show that the sale was only conditional, and that the plaintiff failéd to comply with the condition on bis part, thus controverting the claim of the plaintiff.

By the defendant’s fourth instruction the jury were told that to entitle the plaintiff to recover, he must prove every material allegation in his declaration by a preponderance of evidence. This instruction is liable to a two-fold objection. The declaration contained four counts — three setting out the contract in various.ways, and a fourth alleging an accounting between the parties. Each count sets out a separate-and distinct cause of action, and proof of either was sufficient to entitle the plaintiff to recover. But the jury were instructed, in effect, that they would not be justified in finding a verdict for the plaintiff unless he proved every material allegation in all the counts of his declaration, including the count- which alleged an accounting between the parties. This was obviously wrong. As no evidence under that count was offered, the instruction was tantamount to a direction to find for the defendant.

Again, by the instruction it was left to the jury to decide what allegations in the declaration were material and necessary to be proven. This was erroneous. It is for the court, and not the jury, to say what facts are material. If any authority is needed in support of a principle so elementary as this, reference may be had to the case of Moshier v. Kitchell, 87 Ill. 22, where the court say: “Instructions should, in a clear, concise and comprehensive manner, inform the jury as to what material facts must be found to recover or to bar a recovery.”

It is urged by appellee’s counsel that, assuming improper instructions were given, a new trial will mi be granted when it appears from the whole record that substantial justice has been done. Conceding such to be the rule, it is not to be applied to a case where the evidence is strongly conflicting and the merits of the case doubtful. A careful examination of the evidence in the present case does not warrant us in saying the merits are clearly with the defendant. One jury has found for the plaintiff and one for the defendant, and the merits of the case, under the evidence, are doubtful. In such a case the rule is that the instructions must state the law accurately. In the language of the Supreme Court in Ill. Cent. R. R. Co. v. Moffit, 67 Ill. 431, “ When the evidence is conflicting, and there may be doubt, each party has an indubitable right to have the jury clearly and accurately instructed as to the law of the case. JNot only his own instructions shall be proper, but those of the opposite party shall be free from error.”

For the error of the court in giving the defendant’s fourth instruction, the judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.

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