As there was no motion for a new trial, we might decline to revise the judgment on the ground that the ver*572diet was not warranted by the evidence. (1 Tex. R. 70; Id. 311.) The burden of proof, however, was on the defendant; and the testimony of his own witnesses was so contradictory, as it respected the application of the payment, as to warrant the jury in rejecting it altogether.
The testimony excepted to was competent to prove the existence of the two notes; and as to any other matter spoken of by the witness, it was too indefinite to be supposed to have had any material bearing on the case. At all events, after three concurring verdicts in a case depending entirely on a question of fact, and where the amount in controversy is so inconsiderable, we do not feel warranted in reversing the judgment on account of the supposed error in admitting the testimony. The judgment is affirmed.
Judgment affirmed.