Smith v. Lawyers Co-Operative Publishing Co. ( 1975 )

Pannell, Presiding Judge.

Lawyers Co-Operative Publishing Company brought an action against T. E. Smith and E. B. Brooks seeking recovery for an alleged unpaid balance on the purchase price of certain law books, together with supplements, in the amount of $4,721.07. Smith answered, denying the material parts of the complaint. Brooks failed to answer and a judgment by default was taken against him in the amount sued for, and books in his possession were levied upon and sold under an execution issuing from said judgment, and the proceeds of sale, $487.50, were credited upon the indebtedness sued upon. The case against Smith was tried before the judge of the civil court without a jury, and upon conclusion of the trial, judgment was entered against Smith for the balance claimed. Smith appealed. Held:

With the exception of the credit of $487.50 and admission by defendant Smith that he personally had ordered the books described in two of the orders, which were signed by him and Smith’s admission that some of the books were ordered by a partnership composed of Smith and Brooks, and some by a professional corporation of Smith and Brooks, there was no evidence, other than hearsay, as to other payments, if any, and as to the balance due. We, accordingly, must hold that the judgment in the amount found was unauthorized by the evidence.

Submitted November 6, 1974 Decided January 6, 1975 Rehearing denied January 21, 1975 Theodore E. Smith, for appellant. Nelson C. Rudolph, for appellee.

Judgment reversed.

Evans and Webb, JJ., concur.