The court manifestly erred in its instruction to the jury, as to the effect of the answer. It was not in response to interrogatories, and though under oath, was not evidence for the defendant. (11 Tex. R. 110.) But it was an error in favor of the defendant, of which he cannot complain.
There was no question made as to the admissibility of the amendment of the petition, or the evidence in support of it. The jury were the judges of the weight to which the evidence was entitled, or the conclusion of fact properly deducible from it. And though it may be true, as insisted on behalf of the plaintiff in error, that it was susceptible of an interpretation consistent with his defence, yet it was certainly susceptible also of the interpretation given to it by the jury. We tliink
Judgment affirmed.