Opinion
No. 2389.
May 1, 1930. Rehearing Denied May 29, 1930.
Appeal from Ector County Court; D. Vance Swann, Judge.
Suit by W. L. Bates against R. T. Hubbard. Judgment for plaintiff, and defendant appeals.
Affirmed.
J. B. Cotten, of Crane, and J. F. Weeks, of Odessa, for appellant.
Paul Moss, of Odessa, for appellee.
Appellee sued appellant to recover a balance of $502.24 alleged to be due upon open account for goods, wares, and merchandise sold and delivered. Appellant claimed certain payments had been made for which credit had not been allowed. Verdict was returned and judgment rendered in plaintiff's favor for the amount sued for.
On cross-examination, the defendant testified:
"That he purchased approximately $3,700.00 of stuff from Mr. Bates, and had paid him $2,430.35. That as to the amount paid Bates his First Original Answer shows $2,430.35 and that this is correct.
"That he was not certain that Bates had failed to credit him with any payments not shown in the account introduced in evidence."
This testimony is not otherwise explained or contradicted. According to his own testimony, defendant owes much more than the plaintiff claims. In view of this testimony, the errors assigned are harmless. A peremptory charge in the plaintiff's favor should have been given.
Affirmed