McCoy v. Meador

Fish, C. J.

1. While certain matters are set forth in the brief of evidence which properly have no place therein, they are not sufficient to require a ruling that the brief should not be considered in passing on the grounds of the motion for new trial.

2. The suit being upon an open account which defendant denied owing, and no witness having testified as to the sale to the defendant of the goods for the prices of which the action was brought, nor as to the delivery of such goods to the defendant — it not being shown that the salesman was dead or that his testimony could not be procured, and there. not being sufficient evidence to prove the correctness of the account, the verdict in behalf of the plaintiff was without evidence to support it and the court erred in refusing a new trial.

Judgment reversed.

All the Justices concur.