
    27952.
    INGRAM & LeGRAND LUMBER COMPANY v. McALLISTER.
    Decided March 9, 1940.
    
      Joseph M. Rogers, R. 8. Wimberly, for plaintiff.
    
      T. B. Rainey, for defendant.
   Broyles, C. J.

The'plaintiff lumber company brought an action in trover against'McAllister, to recover the value of certain timber belonging to the plaintiff and alleged to have been cut and sold by the defendant. A verdict for the defendant was returned, and the plaintiff’s motion for new trial was overfilled. ’ One ground of the motion assigns as error the following excefpt from" the charge of the court: “If you should find for the plaintiff in any sum whatever, the defendant is entitled to a credit there -of $120.' In other words, it is admitted by all parties that $120 was' paid for certain wood found at a certain station in this county. Now' as to whether or not that was in full settlement is for you to determine.” The court erred in submitting to the jury the issue as to whether the payment of the $120 was in full settlement for all of the plaintiff’s timber alleged to have been cut by the defendant, such an issue not having been raised by the pleading or the evidence. This error requires another hearing of the ease.

Judgment reversed.

MacIntyre and Querry, JJ., concur.  