Appellee brought this suit before a Justice of the Peace to recover for work done under a special contract for constructing tile ditch and appealed to the County Court where there was a verdict and judgment for plaintiff for 846.32 and costs. A new trial was denied.

The evidence strongly tends to show a failure by plaintiff to make the ditch as agreed in respect to depth and fall, and that defendant refused to accept it as it was. The court instructed the jury that plaintiff must show performance according to the original agreement, unless it was afterward changed by mutual consent — of which there was no evidence. A strong preponderance of the evidence also showed that defendant was to pay for the work in cash on the first day of August, or then give his note for it payable in one year with interest, and that this suit was commenced on the 28th day of July preceding. Yet the court refused an instruction that in such case plaintiff could not recover in this action.

For these errors the judgment will be reversed and the cause remanded.

Reversed and remanded.