Vance v. Claiborne

Opinion.— This court has repeatedly held that any objection to the form in which an offset is presented should be disposed of on exceptions, so that the defendant might have the privilege of amending his answer in that particular. Gaines v. Salmon, 16 Tex., 313; Cunningham v. Wheatly, 21 Tex., 185. The amended answer presenting this offset is sufficient to admit evidence in support of it, and the court did not err in overruling the objection of appellant to the evidence introduced by appellee. An examination of the record shows that, by giving the evidence the most favorable construction for the appellee, the judgment is too small by at least $100. The judgment being contrary to the evidence, the cause is Beversed and remanded.