
    H. C. Howard v. M. Murphy.
    Instructions — Contrariety of Evidence.
    Where there is some contrariety of evidence a peremptory instruction should not be given, even though a second instruction be given, which might have cured the improper peremptory.
    Pleading — Answer—Plea in Bar — Replication.
    An answer, which presents a plea in bar, does not require a replication, as, under the provisions of the Civil Code, the plea stood denied except so far as confessed by the statements of the petition.
    APPEAL PROM MONTGOMERY CIRCUIT OOURT.
    July 1, 1867.
    Michael Murpby sued Henry 0. Howard for $82.03, being the balance claimed due him for services as a farm laborer, part of his wages, some $111, having been paid by his employer. Defendant answered, denying the indebtedness, or any part thereof, but alleged in justification of his refusal to pay the demands of plaintiff, that he had employed said Murphy to work for him for one year for the sum of $300. And that after serving for several months the said Murphy quit him and refused to perform further labors as per the contract. After some conflicting evidence was offered by both parties, the jury were given a peremptory instruction to find for plaintiff. Defendant filed motion for new trial, with affidavits of newly discovered evidence, all shown by a proper bill of exceptions.
    The instructions referred to in the opinion are as follows:
    1st. “The jury will find for the plaintiff the amount claimed in the petition, and may or not in their discretion, give interest from the institution of the suit.”
    2nd. “They will also find for the defendant the damages which they believe from the evidence, the defendant sustained by reason of the plaintiff’s failure to work the remainder of the year from the 26th of May to 1st of October, and the difference between the value of plaintiff’s services as a good gardner and farm hand, and the services rendered by him as he was. If the jury find for defendant on his counter-claim an amount equal to that claimed by plaintiff, they will find for defendant, but if less, they will subtract such sum from the amount due plaintiff, and render a verdict for the difference.”
    
      Holt, for appellant.
    
    
      Tenney, for appellee.
    
    From a verdict for plaintiff in the sum of $50 defendant appeals.
   OniNioN op the Court by

Judge William:s:

The answer of defendant below was not an off-set or counterclaim, but presented an issue in bar which by the provisions of the Civil Code stood denied except so far as confessed by the statements of the petition; therefore it was not only unnecessary to reply, but no such pleading is known to the Code.

There was some contrariety of evidence; therefore, the jury should have been permitted to find on it without a peremptory instruction from the court to find for plaintiff.

It was erroneous to give the peremptory instruction, which was not cured by the following instruction, though they seem to be inconsistent.

As the judgment must be reversed for this error, it is unnecesssarv to say anything as to the discovery of the evidence after the trial.

Wherefore, the judgment is reversed, with directions for a new trial.  