Hembree v. Davison

Jenkins, P. J.

In the instant suit on an open account the defendant admitted by his testimony the correctness of the account, but contended by his pleadings that he was entitled to a credit of $200, the proceeds of a certain mortgage note which he had executed to the plaintiff. The plaintiff testified that the note was executed to secure an altogether separate loan made by him to the defendant; that the amount actually loaned on the note was less than the face thereof, the note having been executed and delivered prior to the consummation of the loan, and that the difference between the amount actually loaned and the amount of the mortgage note had been credited on the note. While the defendant contended by his pleadings that he was entitled to credit on the account sued on for the full amount of the. mortgage note, his testimony in no wise contradicts that of the plaintiff that the transaction with reference to the mortgage note was separate and distinct from the transaction with reference to the account sued on. The defendant admitted the receipt of the amount loaned on the mortgage note, and stated that he could not remember whether the credit entered on the note by the plaintiff represented a payment made or the difference between the amount loaned and the amount on the face of the note. The evidence for the plaintiff being uncontradicted, the court did not err in directing a verdict in his favor.

Judgment affirmed.

Stephens and Sutton, JJ., concur.