
    Klamp, Respondent, vs. Rodewalt, Appellant.
    X. Judgment reversed because the instructions were calculated to mislead.
    
      Appeal from Perry Circuit Court.
    
    
      J. W. JVoell, for appellant.
    
      G. E. Young, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The instructions given by the court below present the only matter necessary for this court to notice. The demand of the plaintiff was upon an account for $259 90. The answer of the defendant denies the account, and also pleads the statute of limitations."

The court gave several instructions for the plaintiff, among which is the following, numbered ás the third on the record : “If the jury believe that money was advanced by Michael Klamp, to pay the expenses of Rodewalt from Europe to the United States, and that the items of this account accrued in that way, they will find for the plaintiff as to the items proven to have been advanced in that way.” Now this instruction has no regard to the defence set up, of the statute; it is not correct, and the facts of the case did not warrant it.

The court gave for defendant an instruction which is also numbered third on the record, being the. only one given for him on his motion. This instruction is as follows : “If the jury find that the plaintiff offered to pay and did pay the expenses of the defendant and family from Europe to the United States, as an inducement to the defendant and family to come with the plaintiff, and that the defendant’s wife is the daughter of the plaintiff, then the transaction must be regarded as a gift or advancement from the plaintiff to the defendant, and he cannot recover for the same.” The court also gave an instruction of its own motion, which is as follows : “ The jury must find that the payment made by the plaintiff for the defendant was intended and understood as a gift, made as an advancement to the defendant to remove to the United States, and unless they so find, the defendant is liable therefor, and the jury will find a verdict accordingly.” .

Neither of these last two instructions do away with the effect of the first one cited above. These last two may have been designed to present a different view of the same subject, that is, the advancement, yet, when we take the whole of these instructions together, they present but a confused idea of the law. These instructions are calculated to mislead the jury, and indeed, they may have seriously affected the rights of the defendant.

For these instructions, therefore, the judgment below must be reversed, and the cause remanded.

The other judges concur.  