This case was tried with, and involved the consideration of questions 'determined in Tews v. Marg, ante, p. 245, 16 N. W. (2d) 795. The conclusions reached in that case control here.

By the Court. — Judgment reversed, cause remanded with directions to grant a new trial, to allow an amendment of the pleadings by both parties upon payment of the costs below and upon this appeal, by the respondent.