Upon consideration of the petition for rehearing, we have concluded to adhere to our previous opinion in this case on the questions of law. The plaintiff sued on an account stated as of December 31, 1930, but attached as an exhibit an itemized statement of a running account and duly proved this itemized running account at the trial. We still feel that the trial court was justified in treating the trial as being on this issue.
However, we believe the court erred in finding only $109.31 due to plaintiff. The plaintiff alleged in his petition that there was a balance due on December 31, 1930, of $628.48; and to this he conceded a credit of $65.49 without identifying the source of this credit. The record shows this $65.49 arose as follows: On December 31, 1930, Simmons had bought of plaintiff $1,224.48, and during 1930 had paid thereon the sum of $596. This left a balance of $628.48 on that date as alleged by plaintiff. Thereafter, in 1931, Simmons bought $388.19 of plaintiff and paid $453.68, or $65.49 more than bought in 1931. Plaintiff allowed this as a credit on the balance alleged to have been agreed upon as of December 31, 1930. The trial court, however, took the balance of $628.48 and credited all that was paid during 1931 ($453.68) and arrived at a balance of $174.80 and then deducted $65.49 from that, and arrived at $109.31. Since the $65.49 was a part of $453.68 (being the excess of $453.68 over $388.19) which had already been deducted, it resulted in a deduction of $65.49 twice. Therefore, the plaintiff's judgment should be $174.80.
Our opinion is approved as thus modified, and the petition for rehearing is denied.
McNEILL, C. J., OSBORN, V. C. J., and BUSBY, CORN, and GIBSON, JJ., concur.
RILEY, WELCH, and PHELPS, JJ., absent.