
    26979.
    Gillespie v. Gregory.
   Felton, J.

1. This was a suit on a promissory note given for part of the purchase-price of a lighting plant, in which a plea of total failure of consideration was filed, and in which plea' judgment was prayed against the plaintiff for $100, the alleged value of the property delivered to the plaintiff as part payment for the plant. The judge charged the jury that it might find for the plaintiff the amount sued for, or any part thereof, or generally for the defendant. This charge was error, for the reason that if the jury found that the property delivered to the plaintiff as part payment on the light plant was worth more than the light plant, they would have been authorized to find in favor of the defendant for the difference. The charge as given precluded the jury from finding anything but a genera] verdict for the defendant.

2. While there was evidence to the effect that certain parts of the plant were totally worthless, there was no evidence to authorize a finding that the plant as a whole was totally worthless. It was not error for the court to instruct the jury that they s'hould not consider the plea of total failure of consideration.

3. The court did not err in refusing to • accept a verdict of the- jury finding for the plaintiff his plant and for the defendant his note.- ’Such verdict did not follow the pleadings or the evidence.

Decided October 1, 1938.

H. L. Barnett, J. H. Paschall, for plaintiff in error.

Y. A. Henderson, contra.

4. The other assignments of error are without merit.

Judgment reversed.

Stephens, P. J., and Sutton, J., coneur.  