¶1Appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial.
¶2This action was brought to recover for moneys claimed to have been converted by the defendant.
¶3The answer denies the complaint and sets up a counterclaim for board and lodging furnished to plaintiff between August, 1884, and March, 1890.
¶4The evidence shows that the defendant was a married man during the period aforesaid, and tended to show that he kept house, and that the plaintiff lived in the family and that his board and lodging was worth three dollars per week.'
¶5At the close of this case defendant’s counsel asked the court to charge that where husband and wife lived together, and the wife kept boarders, and the boarders are kept in the house, that the husband is entitled to the money paid for board, unless a special agreement is shown between the husband and wife, allowing the wife to have that claim for her sole • property.
¶6The court refused to charge as requested and defendant’s counsel duly excepted. '
¶7We think this was-error; the defendant was entitled to have the proposition charged* as requested, and we cannot say that the refusal did not prejudice the defendant.
¶8Judgment reversed and a new trial ordered, with costs to abide the event.
¶9Fitzsimons, J., concurs. ¡
¶10Judgment reversed and new trial ordered, with costs to abide event.