Reversing.

The appellant brought this suit to foreclose a mortgage taken by it in 1923 on a crop of tobacco grown in that year by the mortgagors. A specific attachment was obtained. The mortgagors made no defense to this action which was instituted during the vacation of the circuit court. Circuit court convening shortly thereafter, the appellee filed its intervening petition and asked to be made a party to the foreclosure suit. By its intervening petition, appellee averred that prior to the mortgage of their crop to appellant the mortgagors had pooled it with the appellee and that under the Bingham Co-operative Marketing Act, Kentucky Statutes, section 883f-41, and the pooling agreement, the appellee had a right to require delivery of this mortgaged tobacco and to have the same sold through it, rather than through the ordinary channels of sale of attached property. Appellee filed with its intervening petition a paper which it said was identical with the pooling agreement signed by the mortgagors. Appellant traversed all of the averments of this intervening petition. The case was submitted to the court without proof, and it gave appellant judgment for its debt and sustained the specific attachment, but ordered the tobacco delivered to appellee for sale through the pool as requested by the intervening petition. Appellant appeals from so much of the judgment as directs the tobacco to be sold through the appellee on the ground that since the intervening petition was traversedin toto and no proof was offered to support its averments, the court erred in adjudging appellee the relief it sought. There can be no question about the correctness of appellant's position in this regard, and the case must be reversed. However, we are convinced that this case must have been submitted to the lower court on some issue other than the failure of proof, since this is too elementary a proposition to mislead the trial court. It is clear that justice requires this case to be remanded with permission to the parties to take proof, if they so desire, concerning the verity of the appellee's intervening petition. Cf. Sharer v. Tuck, 172 Ky. 200; 189 S.W. 27.

Judgment reversed. *Page 332