Jennings. v. Pollard

When the case made by appellee's pleadings and the testimony is kept in mind, we think it is clear that the judgment is wrong. The balance appellee claimed to be due him on the account he sued on was $298.46. Testifying as a witness, be admitted, as appears from the statement above, that appellants were entitled to credits aggregating $130.35 which he had not allowed in stating said account. It is plain, therefore, that appellee was not entitled to recover a sum in excess of $168.11 — the difference between the sum he sued for and the amount of credits he acknowledged appellants were entitled to but had not received in his account against them. It may be that the judgment should be so reformed as to adjudge a recovery in appellee's favor for said sum of $168.11, and that as so reformed it should be affirmed; but we have concluded not to pursue that course, because of the fact that it appears very probable from the record that appellee is not entitled to recover of appelants a sum in excess of $22.20. The testimony of Jennings, referred to in the statement above, indicates this we think. If the orders he exhibited (but which were not offered and admitted in evidence, it seems) were in fact given by appellee, as Jennings testified and appellee did not deny they were, the account appellee sued upon should have been further credited with the amount of said orders, to wit, the sum of $145.91, which would have left a balance of only $22.20 in appellee's favor.

Appellee asserts that there was testimony which would have supported a finding that the balance on the account appellants sued on, instead of being in their favor for $2.55, was in his favor for more than $200. Therefore, he argues, the judgment in his favor was not unwarranted. But we think he was not entitled to recover on testimony disproving the case made by appellants' pleadings, but must have recovered on testimony proving the case made by his own pleadings.

The judgment is reversed, and the cause is remanded for a new trial.

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