The opinion
BROWN, P. J.
[1 ]
The assignments of error predicated on the judgment of the court overruling the demurrer to the defendant’s special'plea, and sustaining the demurrer to the plaintiff’s special replication are not insisted on and are treated as waived. L. & N. R. R. Co. v. Holland, 173 Ala. 694 , 55 South. 1001 . The only question, therefore, is whether or not the court erred in giving the affirmative charge requested in writing by the defendant.
[2]
There was evidence tending to sustain the plaintiff’s case, so the giving of the affirmative charge for the defendant cannot be justified on the theory that the plaintiff wholly failed to make out a case. The only other theory on which this action of the court can be justified is that the evidence sustains without room for adverse inference, one or more of defendant’s special pleas. The evidence offered by the plaintiff and that offered by the defendant is in direct and irreconcilable conflict on all the material is
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sues presented by the defendant’s special pleas 3, 4, and 5, and the affirmative charge could not be given on the theory that any one of these pleas was sustained by the undisputed evidence. Garren v. Fields, 131 Ala. 304 , 30 South. 775 ; Ashford v. McKee, 183 Ala. 620 , 62 South. 879 .
[3]
Special plea 2 is a mere denial under oath of the correctness of the account sued on, and should not, on another trial, be treated as a plea. However, under the evidence, the question of the correctness of the account was for the jury. There was no evidence to sustain the sixth plea.
The defendant was not entitled to the affirmative charge.
Reversed and remanded.