No. 1411.

#### Dyer v. Miller.

Opinion filed June 8, 1886.

Under an alleged agreement to take a store in .one of two ways, either for six months at $50 per month, or for a year at $40 per month, and subsequent occupancy with payment of some rent, the question as to whether there had been an election as to which of the two ways it was held, was one of fact and not of law, and should have been left to the jury. For the error in withdrawing such question from the jury the judgment is reversed and remanded.

Attorneys, for appellant, Mr. C. W. Brown; for appellee, Messrs. Wing & Goodsfeed.

Opinion by

Welch, J.

Judge below, Geo. W. Stiff.