Opinion
(Filed 31 May, 1939.)
APPEAL by defendant from Sinclair, J., at October Term, 1938, of CUMBERLAND.
W. Louis Ellis, Jr., for plaintiff, appellee.
Robert H. Dye for defendant, appellant.
This was an action to recover $400 placed in the hands of the defendant by the plaintiff. The defendant admitted the execution of three notes aggregating $400 to secure the money received by him from the plaintiff, but alleges that said notes and money have been paid and overpaid, partially by the delivery of merchandise to the plaintiff and partially by cash, and asks judgment by way of counterclaim for $96.42. The case was submitted to the jury upon appropriate issues, which were answered in favor of the plaintiff, and from judgment predicated upon the verdict the defendant appealed, assigning errors.
The assignment of error principally relied upon by the appellant is to the charge to the effect that if the jury should answer the issue as to the indebtedness of the defendant to the plaintiff in any amount, they would answer the issue as to the indebtedness of the plaintiff to the defendant "Nothing," since, if the defendant was indebted to the plaintiff, the plaintiff could not be indebted to the defendant. We see no error in this charge. The defendant admitted the receipt of the money from the plaintiff and execution of the notes for the same, and alleged payment and overpayment thereof by the delivery of merchandise and cash. Before the plaintiff, under these circumstances, could become indebted to the defendant it was necessary for the defendant to establish by the greater weight of the evidence that the notes (representing money received by him from plaintiff) had been paid before the plaintiff could be indebted to the defendant in any amount.
We have considered the other assignments of error and find them without merit.
No error.