In this case appellee claimed a small amount to be due to him, from appellant, for work and labor. Appellant claimed that he had settled by the payment of five dollars. The court gave the following instruction for appellee:
“ If the jury believe, from the evidence, that the defendant paid plaintiff five dollars, and then told him to go to W. A. Tanner, and collect of him the amount of the work done for said Tanner, in full settlement of the matter in controversy between them, (the plaintiff and defendant,) and in pursuance of said arrangement the plaintiff took the five dollars, and if the jury further believe, from the evidence, that the defendant afterwards collected the amount so due from said Tanner, then the plaintiff would be entitled to recover the amount so due and collected from said Tanner, for such work; if the jury believe further, from the evidence, that Tanner demanded back the money paid to the plaintiff, and the plaintiff did pay it to him.”
*530There is no evidence in the record that appellant told appellee to collect any amount from Tanner. This would have been an acknowledgment of an indebtedness greater than five dollars. The appellant, in his testimony, and through other witnesses, disputed this assumption.
It was, therefore, manifest error in the court below to assume a fact so important and materially affecting the rights of appellant, without any proof.
The judgment is reversed and the cause remanded.
Judgment reversed.