Opinion by
AMES, C.
This is an action brought by the defendant in error against the plaintiff in error to recover for breach of contract and for money had and received. The case was commenced on the 24th day of January, 1905, and was therefore pending upon the creation of the state. It was tried to a jury after the adoption of the Constitution, and at the trial the court instructed the jury that it might return a verdict with the concurrence of only nine of its members. A verdict was returned by 11 of the jurors, and exception saved by the plaintiff .in error. Under thedecision of this court in Pacific Mutual Life Insurance Co. v. Adams, 27 Okla. 496, 112 Pac. 1026, this was error, and requires the reversal of the case. As the case must be reversed for the reason stated, it is unnecessary to pass upon the other assignments of error.
The judgment of the trial court should be reversed, and the cause remanded for further .proceedings.
By the Court: It is so ordered.
All the Justices concur.