
    Gulfport Fert. Co. v. Jones.
    Assumpsit.
    (Decided November 21, 1916.
    73 South. 148.)
    Payment; Pleading; Instruction. — Where payment was not specially pleaded, and therefore not made an issue in the case, it was error to give a charge submitting payment as one of the defenses.
    Appeal from Mobile Circuit Court.
    Heard before Hon. Samuel B. Browne.
    Assumpsit by the Gulfport Fertilizer Company against Burke
    Jones, Sr. Judgment for defendant and plaintiff appeals.
    Reversed and remanded.
    Harry T. Smith & Caffey, for appellant.
    Rickarby & Austill, for appellee.
   PELHAM, P. J.

This case, like the case of Gulfport Fertilizer Co. v. Burke Jones, Jr., 73 South. 145, submitted at the same time and disposed of at the present term (opinion November 14, 1916), was tried on false issues. The court in this case, as in the case heretofore disposed of by us, authorized a finding in favor of the defendant below (appellee) on evidence, if believed by the jury, going to show a liquidation, or payment, of the debt or demand sued upon. Payment not being pleaded, and not made an issue in the case, this action of the trial court was error. One of the assignments of error presents this question, and a reversal must be ordered. See Gulfport Fertilizer Co. v. Burke Jones, Jr., 73 South. 145, present term.

Reversed and remanded.  