This is a companion case to suit No. 5239, decided by us this day. It involves-the same issues - and was handled below in. the same manner as No. 5239 (John S. Fant v. I. W. Miller, 170 So. 412), and for the reasons given in that case, the judg *416 ment of the lower court is set aside and the case remanded to be tried in accordance with the law.