On Petition por a Rehearing.
Woods, J.— Counsel for the appellees strenuously insist that the excluded testimony of McClanahan .had reference only to an expression of opinion by the witness MePheeters, and that the opinion so expressed had no relation to the testimony which MePheeters had given, and that, for these reasons, the ruling of the court in withdrawing the testimony of the said witness was right. Counsel cite Hopkins v. Stanley, 43 Ind. 553; Paxton v. Dye, 26 Ind. 393. It is true that the alleged expression of MePheeters was in form an expression of opinion, but, under the circumstances shown in evidence, it was a question for the jury, whether it was not equivalent to an admission of fact, that is to say, of the amount then unpaid of the note in suit; and this was the exact subject of dispute and on which MePheeters had testified. The doctrine of Hopkins v. Stanley, supra, that juries must give positive answers and not opinions in response to special interrogatories, as we conceive, has no bearing on the subject; and, upon the facts of the case, Paxton v. Dye, supra, supports our conclusion.
Petition overruled,, with costs.