Howells v. Currie

Per Curiam.

The plaintiff in error sued the defendant in error in an action on a promissory note. The defendant in error interposed a plea of set-off to which the plaintiff in error filed a replication. It devolved upon the defendant in error, under the pleadings, to prove the allegation of his plea by a preponderance of the evidence. The verdict and judgment were for defendant in error.

The court below charged the jury, by whom the issues of fact were tried, that “if the evidence of the plaintiff and the defendant are of equal weight in your mind, then you should find for the defendant.” This charge was clearly erroneous. Counsel for the defendant in error say in their brief: “The defendant admits that the last word of the foregoing sentence should have been plaintiff instead of defendant, but respectfully insists that the error, if any, is not a reversible error, but a harmless error.” We do not think that on this record the error was harmless.

The judgment is reversed and the cause remanded for a new trial.

Whitfield, P. J., and Strum and Buford, J. J., concur. Terrell, C. J., and Ellis and Brown, J. J., concúr in the opinion and judgment.