On Petition for Rehearing
PER CURIAM.On original hearing we held that the appellant-defendant is entitled to a new trial. The language of our opinion is susceptible of the construction that the case can be retried only “upon an appropriate amendment of the complaint.” We did not mean to limit the discretion of the trial court in the rulings to be made by it on the pleadings and issues. To avoid misunderstanding, therefore, the quoted expression is withdrawn.
The appellee-plaintiff further insists that the issue on the “tax counterclaim” has been adjudicated adversely to the appellant-defendant and cannot be retried. We do not agree. The district court had charged the jury that if they found for the plaintiff on the form of verdict which they used “they would be finding against the defendant on the counterclaim,” referring, admittedly, to the “tax counterclaim.” The submission of the issue of account stated vel non, under the instructions given, infected the entire case with error. The jury may never have reached the merits of the “tax counterclaim,” and that counterclaim should not, therefore, be excluded from the new trial to which we have held that the appellant-defendant is entitled.
With the opinion thus modified, the petition for rehearing is
Denied.