It is perfectly manifest from the whole record that the contract under which the performances in question were given was not the written contract on which the appellee relies. There is nothing in that written contract to prohibit making a verbal contract under which the performances in this case were rendered. The situation was that the actors and actresses in the company refused to perform at all because their salaries were in arrears. The appellee had breached his contract with them, and there is nothing in the evidence to hint at ability on the part of the appellee to perform the contract, or any readiness or offer on his part to perform the contract. With this situation wholly unforeseen, the appellant made the contract under which this performance was rendered, a contract wholly independent of the contract on which the appellee relies. There was perfect authority and right on the part of the parties to the verbal contract to make it. No right of the appellee was thereby infringed. It was simply a case of emergency wholly *432unforeseen, in which emergency this verbal contract was made,, in order that the performance might proceed.

It follows, of course, that the giving of the peremptory instruction by the court below was manifest error. It was for' the jury to say whether they would believe the witness Jones, the appellant’s manager, or not, about what the terms of this verbal contract were. If they did believe him, the appellant1 was clearly entitled to a verdict. Whether they would believe Jones was a question for them, and not for the court.

The judgment is reversed, and the cause remanded for a new trial.

Por the reasons set out in the opinion of the Commissioner, the judgment is reversed, and the cause remanded.