This action was begun before a justice of the peace and is based on an account concerning railroad ties furnished defendant. Defendant filed an account in the nature of a counter-claim, in which one item was for damages for not furnishing eleven hundred and three ties which it is claimed plaintiff agreed to furnish. The verdict was for plaintiff and defendant appeals.
There is no objection to the testimony and the only error alleged is in giving plaintiff’s first instruction and refusing defendant’s fourth. The first instruction was properly given, from the fact that the undisputed testimony showed the item upon which the instruction was based was owing to plaintiff. Defendant himself so testified. The fourth instruction is made the basis of an argument as to the recoupment and counter-claim and of the jurisdiction of a justice of the peace over such. We will not enter into a discussion as to this, from the fact that the trial court may well have refused the instruction for the reason that it is based partly on the assumption that defendant was to take such ties as the *640railway would receive within ten days after inspection when there is no evidence of such matter, thus-making the instruction liable to mislead. It is further objectionable in omitting to embrace the hypothesis made by plaintiff’s evidence, that he did not furnish more ties, for the reason that defendant was to advance-money to plaintiff and which he had failed to do. The judgment affirmed.
All concur.