On Motion for Rehearing
We agree with appellee in his motion for rehearing that the trial court in his findings set out the four invoices totaling $5,-648.72, although appellant sued for only $4,795.61 since it credited appellee with $893.11 on Invoice No. 64958, dated March 7, 1962, and debited the account for $40.00, as shown on the statement attached to appellant’s open account, thereby judicially admitting that not more than $4,795.61 was unpaid and owing. The date of such invoice is as shown in the statement, but a re-examination of the statement indicates we were mistaken in saying the credit was given on the same date, since no date is given on the statement other than that of the invoice. Since such credit was given, it is our view the date thereof is not material. We stated in our opinion that there was nothing in the record showing any change in the account or any payments subsequent to the date of delivery of the goods or thirty days thereafter to the date of trial. We here modify such statement since the credit allowed as aforesaid may have been paid subsequent to the date of delivery or thirty days thereafter.
It is our view that appellee’s admissions made out a prima facie case in favor of appellant, and that such admissions entitled appellant to a ruling that ap-pellee should lose if he failed to come forward with evidence. Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, error dism. Appellee admitted that he had ordered the goods, that they were shipped and delivered to him, and that he agreed to pay the amounts of the invoices which were introduced in evidence without objection. He in effect admitted that the account was just, that the goods were lawfully chargeable to him and that he was liable therefor. He did not admit the $40.00 debit which was for rent. Deducting this $40.00 from the account leaves $4,755.61. In view of appellee’s agreement and admissions, it was not necessary for appellant to prove that the prices charged for the merchandise so delivered were either usual, customary or reasonable. Such admissions on his part, although they in effect negated his sworn plea that the claim was not just or true in whole or in part, did not prevent him from pleading and proving that the account was paid, or barred by limitation, or matters in confession and avoidance, or setting up a counter-claim. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, ref., w. m.
It should be noted that in H. G. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W. 2d 570, relied upon by appellee, the court stated that the letter that the appellee in that case had written was an admission that she owed the amount stated therein upon the date of the letter, but that such letter coupled with her undisputed testimony that she had paid such amount, was not sufficient to support the jury’s finding that she owed appellant such amount at the time of the trial. The instant case is distinguishable from that case in that, although appel-lee was twice upon the witness stand, he nowhere testified that he had paid anything on the price of the goods delivered to him which he said he agreed to pay according to the invoices.
Motion for rehearing overruled.