Mr. Justice Higbee
delivered the opinion of the court.
3. Payment, § 3*—what constitutes. In an action to recover the price of a stove purchased by plaintiffs from the defendant, where there was a failure of warranty, and the refusal of an instruction was complained of, which told the jury that if the defendant made a payment of part of the purchase price after having complained of the stove he could not recover, held that although such part payment consisted of the turning over of an account at the time of the purchase, it constituted a payment of the amount thereof on the stove, regardless of when the account was paid. 4. Instructions, § 480*—what is province of court as to announcing theory of party and instructing accordingly. It is not error for the court at the request of a party to state to the jury the theory upon which a case is being tried and then announce the law applicable to such theory, and it is the province of the jury to decide whether one theory or another is sustained by the evidence under the law announced by the court. 5. Sales, § 401*—when evidence is sufficient to sustain finding for plaintiff on issue of noncompliance with warranty. In an action t& recover the price of a stove purchased by plaintiffs from the defendant, where a failure of warranty was claimed, and it appeared that the stove was to be returned if not as warranted, but the testimony was conflicting as to the nature of the warranty, held that it was for the jury to say which warranty was in fact made, and whether the stove complied therewith, and that the finding of the jury in favor of plaintiff should not be disturbed. Free access — add to your briefcase to read the full text and ask questions with AI