On Motion for Rehearing.
In stating that the appellee did not sue for the value of the use of the premises, in the orignial opinion, we find upon examination of the record that we were in error. There is a count in the cross-petition for the value of the use of the premises. We, however, followed appellant’s 'brief in the main, in making the statement of the issues. The trial court did not submit the issue to the jury for their finding on the value of the use of the place. We regard this error on our part as being immaterial, as all the issue on the value of the premises for the year 1913 was in effect withdrawn from the jury by the trial court. The use we made of the above statement was in discussing the fifth and ninth assignments of error. We regard the answer of the court to the question propounded to him by the jury, of which complaint is made in the fourth assignment, as being against the appellee, of which he could have complained, and that the court’s charge in answer to the question was really in favor of appellant, and that no injury was shown to appellant, by reason of such answer; and the ninth assignment we think shows no injury. The reasons given by us in the opinion apply with as much force under the issues submitted by the court to the jury as if there had been no pleading asking for the value of the use of the premises, which, as above stated, was withdrawn from the consideration of the jury by the trial court in his main charge.
[5] In the motion for rehearing, the appellant urges that we were in error in overruling the fourth assignment, because the appellee, in answering the appellant’s claim for appropriating rents, etc., did not plead specially his offset or counterclaim. Without deciding at this time whether it was necessary to so plead the counterclaim, we think it is sufficient to state that appellant presented no assignment complaining that the pleadings were insufficient. The proposition presented under that assignment for our consideration was, where the evidence is undisputed, it is error to submit the issue to the jury. The evidence of appellee, of which *1035complaint is now Fere macfe, was' ¿Matted without objection and so remained in the record. It might have been excluded upon the proper objection if the pleading was insufficient to admit it; but, having been admitted, the issue was raised by the testimony to be determined by the jury under proper instructions.
[6] The third assignment complains of the charge of the court upon the question of exemplary damages. The charge perhaps is not verbally correct; but when considered in connection with the entire charge, in which the court informed the jury that there must have been a rental contract, and that appellee was required to show his right to possession of the land before he could recover exemplary damages, was, we think, sufficient in connection with the court’s charge on probable cause. While this phrase was not clearly applied, as it should have been, we yet think it substantially presents the issue correctly and no injury is likely to have resulted to appellant therefrom. If the charge was not correct, appellant should have requested a correct charge on the point at issue and, not having done so, ought not now to complain because the charge is verbally inaccurate.
The motion for rehearing is overruled.