
    E. J. Vance, Administrator, v. Phil. Claiborne.
    (No. 3184.)
    Evidence — Practice.— Objection to the form in which an offset is presented should be disposed of on exceptions, so that the defendant might have the privilege to amend in that particular.
    Verdict contrary to evidence. — Where judgment below is clearly for an amount less than called for by the evidence, cause will be reversed and remanded.
    Appeal from Bastrop county. Opinion by Watts, J.
    Statement.— This is the second appeal of this case. The disposition of the former appeal is reported in 39 Tex., 398.
    A partial statement of the case will be found in the opinion of the court. After the case was remanded Claiborne filed an amended answer, more certainly and specifically setting up the Gay note, as an offset, also pleading-other matters of discount, etc. The credits admitted, and about which there was no controversy, are as follows: August 22, 1861, $150; February 22, 1866, $500; September 3, 1866, $25; September 25, 1868, $100. The only other item of discount about which there was any evidence adduced was the Gay note or claim. The note sued on was for $1,141.50’dated February 25,1861, bearing interest from date at the rate of twelve per cent, per annum. A trial was had November 23, 1875, and a verdict and judgment in favor of appellant for $195.62. Errors relied on are:
    1. The court erred in admitting evidence as shown by bill of exceptions. 2. The verdict and judgment is against the evidence, being much less than was shown to be due appellant.
    When this case was before the supreme court in 1873, it was held that the plea of Claiborne, setting up the Gay note as an offset, was not sufficient to entitle him to introduce evidence in support of it; and as the court below had admitted evidence in support of that offset, the judgment of the court below was reversed and the cause remanded. Vance v. Claiborne, 39 Tex., 398.
    After the cause was remanded, Claiborne filed an amended answer, obviating the objection to the manner in which this offset was asserted in his former answers. On the second trial appellant objected to the admission of evidence in support of this portion of appellee’s answer, which objection was overruled and the evidence allowed to go to the jury. That point was saved by bill of exceptions, and is now urged as ground for the reversal of the judgment.
   Opinion.— This court has repeatedly held that any objection to the form in which an offset is presented should be disposed of on exceptions, so that the defendant might have the privilege of amending his answer in that particular. Gaines v. Salmon, 16 Tex., 313; Cunningham v. Wheatly, 21 Tex., 185. The amended answer presenting this offset is sufficient to admit evidence in support of it, and the court did not err in overruling the objection of appellant to the evidence introduced by appellee.

An examination of the record shows that, by giving the evidence the most favorable construction for the appellee, the judgment is too small by at least $100.

The judgment being contrary to the evidence, the cause is

Beversed and remanded.  