Newman v. Benge Flemister.

This case originated in a justice's court, but was appealed to, and finally tried in, the county court. It is an action of debt The plaintiffs recovered, and the defendant has appealed.

Some of the objections urged by appellees to appellant's brief are well taken; but we hold that the third assignment, which complains of the action of the trial court in refusing to give a requested instruction, is presented in such a manner as to require consideration, and that error was committed in refusing to give that charge. The pleadings and the testimony presented the defense of the statute of frauds as to some of the items in the account sued on by appellees, and the court failed to charge upon that subject. The requested instruction was correctly framed, and would have supplied that omission, and it was error to refuse to give it; for which reason the judgment is reversed, and the cause remanded.

Reversed and remanded.