J. W. Jenkins' Sons' Music Co. v. Truex , 1918 Tex. App. LEXIS 711 ( 1918 )

MOURSUND, J.

Appellant sued appellee to recover balance of $137.75 and interest thereon from September 9, 19Í0, alleged to be due for a piano, and to foreclose chattel mortgage lien. The piano was alleged to be of the value of $300. -Defendant pleaded payment. The trial resulted in a verdict and judgment in favor of defendant.

[1] Appellant’s first assignment is not contained in the motion for new trial and cannot be considered.

By the second and third assignments it is contended that the verdict is not supported by the evidence, in that the burden was on defendant to show specifically how he paid the amount sued for, and to show that such payment was received by plaintiff, and that there is no evidence in the record establishing these facts with any degree of probity. Defendant was in possession of the only instrument evidencing the debt, but plaintiff claimed it had been sent him by mistake. Defendant testified that he remitted $164.35 to plaintiff on November 12th, of which sum $150 was by means of a check of another person, but he could not recall whose check it was, and the remainder was in currency and silver. He testified that after doing this he received the piano contract, with a contract for a victrola, which he had also purchased on the installment plan. There is no direct evidence that the plaintiff company received the remittance, and the only evidence from which its receipt can be deduced is that of defendant, to the effect that after making-such remittance his piano contract was sent him by plaintiff. There are some circumstances which cast great doubt on the correctness of such statement. The plaintiff’s manager of the collection department attached to his depositions a carbon copy of a letter purporting to have been written on October 2, 1913, in which receipt of balance due on- the victrola contract was acknowledged, and it was stated that such contract, duly canceled, was inclosed. Receipt was therein acknowledged of $21.24 to toe applied on the piano contract. In view of this evidence, and defendant’s statement, it occurs to us that plaintiff’s contention that the piano contract was sent out by mistake, and that it never received any remittance such as was testified about by defendant, is probably correct; but, after all, the jury had the right to disbelieve the plaintiff’s manager, and to believe that no such letter was sent, or that, if it was sent, the victrola contract was left out by mistake, and the two contracts sent afterwards. Mr. Hulland, plaintiff’s employe, who handled all money received by mail from outside of Kansas City, did not testify; nor did Mr. Jenkins, plaintiff’s treasurer, who indorses all checks received and deposits the money. No effort was made to show by the bank with which plaintiff did business that no check such as was described by defendant was deposited in November, 1913. Plaintiff’s sole testimony was that of its manager, who of course testified from the records of his department. The defendant was in possession of the only evidence of the indebtedness sued on by plaintiff. If the jury believed his statement as to how he came into possession thereof, they were authorized to find that plaintiff received the remittance and accepted it as full payment. Defendant’s possession of the evidence of the indebtedness raised a presumption of payment, and the burden of overcoming the prima facie case made by the possession of the contract devolved upon the plaintiff. The evidence by which it sought to discharge such burden was found unsatisfactory by the jury, and defendant’s testimony was believed, despite a number of strong circumstances tending to discredit the same.

We have carefully considered the evidence, and, however much we might differ with the jury as an original proposition, we conclude that we would not be authorized to set aside the verdict and judgment.

The judgment is affirmed.

i&^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes