It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming the judgment of the common pleas court, and the court finds that there is error in the record and the proceedings of the court of common pleas in this, that said court erred in overruling the *486motion of defendant at the close of the evidence in the case to arrest the evidence from the jury and to direct 'a verdict in favor of the defendant, for which error it is ordered and adjudged that said judgment of the court of common pleas be, and the same is, hereby reversed; and coming now to render the judgment that the court of common pleas should have rendered, it is ordered and adjudged that the petition of plaintiff, the defendant in error herein, be, and it is hereby, dismissed.