#### Charles O. Leeper, Appellee, v. Rogers Grain Co., Appellant.

Instructions—must not ignore material issue. An instruction which authorizes a verdict in disregard of how a particular issue may he determined, is erroneous and cannot be cured by other instructions given.

Trover. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1908.

Reversed and remanded.

Opinion filed November 17, 1908.

Herrick & Herrick, for appellant.

Ingham & Ingham, for appellee.

Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in trover by Leeper against Rogers Grain Co., a corporation, for the recovery of the value of certain corn. The plaintiff recovered a judgment for $220.45, to reverse which the defendant appeals. The declaration charges that Leeper, the plaintiff, owned a farm, which he rented to one Huffman for the year beginning March 1, 1906; that the defendant corporation bought and paid for the corn raised by Huffman upon the premises during that year; that Huffman had not paid the full amount of rent due, by reason of which the defendant became liable to the plaintiff therefor. The evidence establishes the averments of the declaration, and that the amount for which judgment was rendered was still due Leeper at the time suit was brought. There is also evidence tending to show that appellee consented to or acquiesced in the payment by appellant to the tenant of the proceeds of the corn raised on the farm, in which case he must be held to have waived his lien. This question, which is decisive of the case, was one of fact for a jury. Several of the instructions given at the re*425quest of appellee directed a verdict without regard to the issue whether the lien had been waived or not. This was palpable error, which was not cured by the other instructions given. The judgment will -therefore be reversed and the cause remanded.

Reversed and remanded.