188 Ky. 503 | Ky. Ct. App. | 1920
Opinion of the Court by
AfMming.
We deem it unnecessary to detail the evidence. In our opinion there was such a conflict in the evidence as to make the issue raised by the counterclaim a question for the jury, and we are not prepared, to say that its finding is flagrantly against the evidence.
Another contention is that defendant’s motion for a judgment notwithstanding ihe verdict should have been sustained, because the reply did not contain a sufficient denial of the allegations of "the answer and counterclaim. It is the settled rule in this state that the opinion on a former appeal is the law of the case, and matters which might have been brought to the attention of the court, but were not, are concluded by the opinion. Nashville, C. & St. L. Ry. Co. v. Henry, 168 Ky. 453, 182 S. W. 651. While the defendant .obtained a reversal on the first appeal on the ground that the evidence on the counterclaim was sufficient to take the case to the jury, ,they might also have relied on the fact that the reply was insufficient and did not present a defense to the counterclaim. That being true, the former opinion is conclusive as to the sufficiency of the reply, and that question is not open to further consideration. Drake v. Holbrook, 28 Ky. L. Rep. 1319, 92 S. W. 297; Lexington Ry. Co. v. Woodward, 118 S. W. 965.
Instruction No. ,3 is as follows:
“If the jury find in favor of the plaintiffs, they may, in their discretion, award plaintiffs interest from January 26, 1917, and so state in their verdict.”
The first complaint of this instruction is that it authorized interest from January 26, 1917. instead of Feb
Judgment affirmed.