Carter v. Lofton

ON APPLICATION FOR REHEARING PER CURIAM. Defendant has applied for a rehearing upon the ground, mainly, that the court, in discussing the receipt filed in evidence, used, the following language which is an assumption on the part of the court and not borne out by the evidence: “And this agreement is not inconsistent with the receipt issued, for the account sued on was kept separately from the account charged to defendant for goods purchased for his own use.” Upon a careful examination of the record, the court fails to find any evidence to establish that plaintiff had more than one account against defendant upon its books. The court was in error as to the above statement of fact in its opinion. However, considering the very strong case made out by plaintiff, in chief going to establish the debt sued upon, the amount of which being a great deal more than that called for by the receipt in question, and that the amount sued for not having been paid, we think such a receipt as relied upon by defendant is entirely inconsistent with the claim of payment. While the record does not disclose that defendant had two accounts with plaintiff, one for goods purchased for Mr. Hunter, and one for those purchased for his own use, it is possible for such to have been the case. Be that as it may, plaintiff made out a very strong case in chief. Defendant did not even take the witness stand to deny plaintiff’s testimony, but relied upon the three documents filed in 'evidence, and we do not feel that these documents are sufficient, under these circumstances, to warrant the court in relying upon them to the extent of reversing the judgment of the lower court. Rehearing is therefore refused.