¶1delivered the opinion of the court.
¶2The objection of counsel for appellant to the technical form of appellee’s second plea is sound, and it would have been proper practice on the part of the trial judge to have sustained the demurrer and permitted an amendment to the verbiage. But as, by the instruction granted the appellee, the effect of the plea under the proof introduced in support thereof was clearly restricted to its legitimate scope as a plea in recoupment, we are unable to see that appellant was. prejudiced by the course adopted. The defense relied on by the appellee could have been properly interposed by way of recoupment, and as no judgment over was taken against the appellant, no harm was done.
¶3We decline-to disturb the finding of the jury on the facts. The testimony, which was accepted as true, fully sustained the allegation of misrepresentation in the sale and consequent breach of warranty.
¶4Affirmed.