¶1We have examined this record and the points made upon it, and are not satisfied with the finding and judgment.
¶2Appellant might well complain of surprise by the course pursued on the trial, by substituting a verbal contract for the written contract the parties had entered into, the defendant not being apprised, by any pleadings in the cause, that such would be the claim of the plaintiff to a recovery. The defendant did not enter upon the trial prepared to make any defense to such a claim. In truth, he was not then able to make any defense.
¶3We are satisfied justice will be best subserved by submitting the cause to another jury, so that a full investigation may be had, and which it does not appear has been had.
¶4The judgment will be reversed, and the cause remanded that a new trial may be had.
¶5Judgment reversed.