In addition to the issues epitomized in the opinion heretofore promulgated, there was an issue of set-off. All of these issues, were clearly submitted to the jury by the ex mero motu charge of the court, and correctly so, under the evidence in the case. Special charges 4, 5, and 7, given at the instance of the plaintiff, ignore the affirmative issues presented by some of the defendant's evidence, as to whether the board was furnished as a gift, or was paid for by the defendant's decedent, and the issue of set-off, and were to this extent in conflict with the oral charge of the court, and the giving of these charges constitutes reversible error. Ala. Steel Wire Co. v. Thompson, 166 Ala. 460, 52 So. 75. The court is therefore of the opinion that the application for rehearing should be granted, the judgment of affirmance set aside, and that the cause should be reversed and remanded for new trial.
Application granted, judgment of affirmance set aside, reversed, and remanded.