MOTION EOR REHEARING.
SMITH, P. J.The jury under proper instructions, found adversely to the plaintiff on the cause of action pleaded in its petition. And under the improper instruction referred to in the opinion, found for the defendant on his counterclaim; and for the error of the trial court in'giving this instruction we ordered a reversal of the judgment.
The defendant now by his motion offers to remit the amount of the judgment obtained on his counterclaim. If this is done it can not be seen that the plaintiff has any further ground for complaint.
In view of this, we shall sustain the defendant’s motion and order the judgment of reversal, heretofore entered in the cause, to be set aside, and in lieu thereof that a judgment of affirmance be entered. The cost of the appeal to be adjudged against the defendant.