Epitomized Opinion

In the trial of this case the question became material as ’to whether or not rayere , .- at the time of the making of a certain contract. The court instructed the jury that it might find that Payerle was a minor since no evidence was adduced to indicate otherwise and the jury did so find. Error is prosecuted on the ground that this instruction was improper.

Held by the Court of Appeals in affirming the judgment of the Common Pleas:

1. It is a function of the jury, to determine questions ot tact and it is error for the court to determine such questions and to instruct the jury accordingly.

2. If the error committed is not prejudicial to the rights of one of the parties it wui constitute grounds for reversal.