Opinion
Opinion filed December 4, 1928.
A Writ of Error to the Circuit Court for Polk County; Harry G. Taylor, Judge.
Calloway Burruss, for Plaintiff in Error;
Mabry, Reaves Carlton, for Defendant in Error.
H. A. Humphrey brought an action of replevin against J. C. Walker to recover certain mules and wagons that Humphrey claimed to own and that Walker detained unlawfully. At the conclusion of the testimony motion for an instructed verdict on the part of the plaintiff was granted. A new trial was denied and writ of error was taken to this court.
In the state of the record as here presented we think that error was committed in granting the motion for an instructed verdict. It was also competent for defendant to submit evidence to prove that at the time payments were made by him where more than one account was outstanding he could direct the account to which said payments were to be credited.
The judgment below is reversed and a new trial awarded.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.
ELLIS, C. J., AND STRUM AND BROWN, J. J., concur in the opinion and judgment.