We think the contention of appellant that the testimony made an issue for the jury as to whether, in an accounting had between him and appellee in October, 1913, it was found that he was indebted to appellee in the sum of $749, which he then promised to pay, or not, and if there was not whether there was an accounting between them in February, 1914, when it was found that appellee was liable to him in the sum of $1,731, which it then promised to pay, or not, and that the action of the trial court in peremptorily instructing the jury as he did therefore was erroneous, should be sustained. *Page 907 Appellee's claim that the account between it and appellant was stated in October, 1913, that a balance of $749 was then found to be due it, and that appellant then promised to pay that balance, is disputed in the testimony, as we understand it, of appellant as a witness, and by appellee's letter of November 6, 1913, to him. If the account between the parties was not then stated and a balance which appellant agreed to pay found to be due to appellee, as it claimed was true, whether appellee was entitled to recover of appellant as determined by the court below, or not, depended upon whether there was an accounting between them in February, 1914, in which it was ascertained that there was a sum due appellant by appellee which it promised to pay, or not. From testimony given on behalf of appellant, which will not be discussed, we think the jury might have found there was such an accounting and promise on the part of appellee. The judgment will be reversed and the cause remanded for a new trial, so that, if the testimony is the same, the issues referred to may be determined by a jury.
Assignments in appellant's brief presenting other questions for review are overruled.
The judgment is reversed and the cause remanded for a new trial.