It is ordered and adjudged by this court that the judgment of the said court of appeals be, and the same hereby is, reversed; and this case is remanded to the common pleas court of Stark county for a *461new trial and further proceedings according to law; for the reason that it appears from the record in this case, that the plaintiff offered evidence tending to prove the material allegations of the petition, and that therefore, the trial court erred in directing a verdict for the defendant. The issue of fact should have been submitted to the jury to be determined by it under proper instructions from the court.

Judgment reversed and cause remanded.