
    Chas. Allen v. J. N. Hogan.
    (No. 6342.)
    Appeal from Llano County.
    Knight & Stith, counsel for appellant.
    No counsel appeared for appellee.
   Opinion by

Willson, J.

§ 93. Practice; pleading; failure to present to jury at opening of trial will not authorize exclusion of evidence offered under. Suit in justice’s court by appellee against appellant upon an itemized account, and for damages for breach of a contract, and judgment in said court for appellee. On appeal by appellant to the county court, and upon a trial de novo, appellee recovered judgment for $90 and costs. Appellant pleaded payment and a counterclaim, his counter-claim being itemized. In the county court he offered testimony to prove said defenses, which testimony was rejected by the court upon the ground, as we gather from the record, that said pleas had not been stated or read to the court and jury. This ruling of the court was erroneous. Said pleas had been filed among the papers in the cause, and the mere failure to state or read them formally to the jury at the opening of the trial should not have deprived appellant of their benefit. Appellee knew that said pleas were on file in the case, and no injury could Tesult to him by the omission to formally present them to the court and jury.. Because of the error above mentioned the judgment is reversed and the cause remanded.

April 23, 1890.

Beversed and remanded.  