delivered the opinion oe the Court.
The verdict does not appear to be against the preponderance of the evidence but in accordance therewith. The instructions given for the defendant may have prejudiced the plaintiff’s interests, but such instructions were in accordance with the law, and no more than the defendant was entitled to have given.
We find no remarks by the court calculated to prejudice the jury against the plaintiffs. The remarks of the defendant’s attorney are not set forth in the record, but from our knowledge of him we presume that as he properly might, at some time during the trial, he did make remarks tending to bias the jury.
We do not find that the court rejected proper evidence offered at a proper time by the plaintiff. The testimony offered by the plaintiff which was rejected by the court, was offered in rebuttal; if admissible at all, it should have been given in chief.
As a matter of right, a party holding the affirmative can introduce in rebuttal only such evidence as ténds to answer new, affirmative matter introduced by his adversary.
As a matter of discretion courts may, and often do allow in rebuttal, evidence which should have been given in chief; but a refusal to do so is not error. Thompson on Trials, Secs. 344 and 346.
Under the strongly conflicting testimony in this case, the written agreement from which, in the presence of appellant, appellee deliberately struck the word “ commissions ” is of controlling weight. Written documents do not, under the stimulus of passion or self-interest, forget, or conjure up a tale of that which never occurred.
The judgment of the Circuit Court is affirmed.