246 F. 633 | 5th Cir. | 1917
Nothing stated in the opinion rendered when this case was here before indicates that the view was entertained that the two first mentioned defenses were sustained by undisputed evidence. The reversal of the judgment was not based upon the ground that the refusal of the defendant’s request for an instructed verdict was erroneous. The holding was that the evidence adduced on the first trial to support the special defenses mentioned should have been submitted to the jury, pursuant to the defendant’s requests to’ that end. It was conceded in argument that in the trial now under review the third above mentioned defense was not established by uncontroverted evidence. Plainly the giving of the instruction for a verdict for the defendant was not justifiable on the ground that that defense was so made out as to require a finding for the defendant. The issues raised, including those tendered by the defendant, were for the determination of the jury, unless one of the two first above mentioned defenses was sustained by practically un-controverted evidence.
What has been said we think sufficiently indicates the grounds relied on to support the conclusion reached that the issues raised by the defenses mentioned were for the determination of the jury. In our opin
Reversed.