¶1delivered the opinion of the Court.
¶2The appellee sued the appellant for a wrongful discharge from its service. One of the questions of the case, upon which the evidence conflicted, was whether the appellant discharged the appellee, or he quit of his own volition. The appellant put in several useless pleas, one of which justified the discharge. But the general issue, which was the first plea, was not thereby waived, nor could the appellee use the plea of justification as evidence of what the general issue denied. 1 Ch. PI. 563, Ed. 1844. And it denied the whole case of the appellee. Ibid. 478. Tet the court instructed that “ the burden of proof is upon the defendant to show that it was justified in discharging plaintiff during the term of employment, provided the jury believe from the evidence, and under these instructions, that the plaintiff’s contract was for affefinite time, which had not expired at the time of his discharge.”
¶3This assumption that the appellant did discharge the appellee was error.
¶4The proposition of the appellee that, to question an adverse erroneous instruction the record must show that it contains all the instructions given, is not supported by authority, nor do instructions given at the request of the appellant, stating that it had the right to discharge the appellee under certain circumstances, excuse the assumption of the disputed fact that it did discharge him.
¶5The judgment is reversed and the cause remanded.