
    Mary J. Seutter v. Bank of Commerce of Gulfport.
    [65 South. 458.]
    Trial. Peremptory instruction. Talcing case from the jury.
    
    A peremptory instruction should not he given, where there is a conflict in the material testimony of the case.
    Appeal from the circuit court of Harrison county.
    Hon. T. H. Barrett, Judge.
    Suit by Mary J. Seutter against the Bank of Commerce of Gulfport. From a judgment for defendant, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      
      Leathers S Hardy, for appellant.
    
      Wood & Taylor, for appellee.
   Need, J.,

delivered the opinion of the court.

Appellant brought suit to recover the sum of two hundred and ninety dollars, the amount of a New York exchange sold to her by appellee. The payment of the exchange was stopped, and it was in possession of appellant on the trial of the case. Appellee pleaded the general issue and gave notice thereunder. In the notice it was claimed that the amount due appellant on the exchange had been paid and settled for in a general settlement between the parties. After appellant had introduced her evidence, the court sustained a motion to exclude the testimony, and thereupon granted a peremptory instruction to find for appellee.

-The exchange held by appellant was properly put in evidence. Mr. Seutter, husband of appellant, and the only witness who gave testimony in reference to the exchange, testified that appellee had not paid his wife the-amount owing therefor. We do not find in his testimony sufficient evidence to prove the defense of appellee that the exchange had been paid in the general settlement. The only other witness who testified could not say that, the amount owing for the exchange by the hank was included in the transaction of the general settlement between the parties. We believe that the testimony intro-' duced by appellant was sufficient to put the appellee to-proof, and that the court erred in granting the peremptory instruction.

Reversed and remanded.  