
    NEWMAN v. BENGE & FLEMISTER.
    (No. 5343.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.)
    Frauds, Statute oe (§ 160*) — Instructions— Refusal.
    ■In an action for debt, where the pleadings and testimony presented the defense of the statute of frauds as to some of the items sued upon, the refusal of a requested charge correctly submitting that issue was erroneous.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 379; Dec. Dig. § 160.*]
    Appeal from Concho County Court; James E. Houze, Judge.
    Action by Benge & Flemister against W. S. Newman begun in justice court. From a judgment for plaintiffs in the county court, defendant appeals.
    Reversed and remanded.
    George E. Critz, of Paint Rock, for appellant. Hayne P. Young and Jas. M. Simpson, both of Paint Rock, and Woodward & Baker, of Coleman, for appellees.
   KEY, C. J.

This case originated in a justice’s court, but was appealed to, and finally tried in, the county court. It is an action of debt. The plaintiffs recovered, and the defendant has appealed.

Some of the objections urged by appellees to appellant’s brief are well taken; but we hold that the third assignment, which complains of the action of the trial court in refusing to give a requested instruction, is presented in such a manner as to require consideration, and that error was committed in refusing to give that charge. The pleadings and the testimony presented the defense of the statute of frauds as to some of the items in the account sued on hy appellees, and the court failed to charge upon that subject. The requested instruction was correctly framed, and would have supplied that omission, and it was error to refuse to give it; for which reason the judgment is reversed, and the cause remanded.

Reversed and remanded.  