Turley v. Goins ( 1923 )

By WllEIAM A. BEIR, Judge.

This is a suit upon, an open account for groceries alleged to have teen sold and delivered by plaintiffs to defendants in ¡he sum of $281.39. There was judgment against one of the defendants (¿k- — in the trial court for the full amount claimed, suit as against his fe having Been dismissed. Appellees have not prayed for any amendment of the judgment, from which, only the defendant cast,has appealed.

The record does not disclose any rulings hy the trial oourt upon the exceptions of vagueness, misjoinder and no cause of action, all of which exceptions are hereby overruled, the only serious defense being that of payment, which necessarily renders the aforesaid exceptions frivolous and inconsistent.

Appellants testimony is to the effect that after some dispute between him and plaintiffs concerning the correctness of the bill, it was finally agreed between them that the amount due was only $97.00, and that he ultimately paid this amount by a check directly given to plaintiff for the sum of $6.00, and by a cash payment of $26.00, followed by certain other cash payments of $67.00, the latter having been made from time to time to one of plaintiffs' ag-^i£oj^rtrThav ents or collectors. The total amount of groceries sold,appear to have been $301.39, against vhich plaintiffs swear there was paid the sum of $6.00 in cash and $26.00 by check, or a total oredit of $30.00, leaving a balance due of $281.39. Ho checks of any kind have been produced by appellant to *ow these payments,.and when asked by the Court if receipts were given by either plaintiffs or their agent for payments on account, he answers "Yes," olaiming, however, that said receipts were burned. In the next breath he denies that any receipts were given.

Under such, and no better evidence than this, it is con-elusive that appellant has wholly failed to establish with certainty, as the law requires him to do, the plea of payment herein urged.

II IS, THEREFORE, ORDERED, ADJUDGED AID DECHEED that the judgment herein appealed from he and the same hereby is affirmed at defendant’s costs in both courts.

JUDGMEIT AFFIRMED

FEBRUARY 19 , 1983.