ON MOTION EOR REHEARING.
Upon hearing of this cause the judgment of the trial court was affirmed. In their assignments of error appellants complain of the action of the trial court in overruling their motion for new trial, on the ground that the verdict and judgment are not supported by the evidence.
In affirming the judgment it is stated in the opinion that the verdict and judgment are fully supported by the evidence. In their motion for rehearing appellants, among other grounds, complain of this conclusion, and refer to the statement under the eleventh and twelfth assignments of error in support of their contention. In its answer the Sheldon Canal Company alleged that John Barr was indebted to the company for cash advanced to him in a large amount, which is pleaded in offset to his claim, the answer containing an itemized statement showing the dates and amounts of such advances in cash, alleged to have been made. Hone of the evidence referred to in the statement in appellants’ brief, to .the eleventh and twelfth assignments of error, establishes the account pleaded by appellant in offset against John Barr, or any item thereof. If this evidence can be said to establish any indebtedness of John Barr to the Sheldon Canal Company, it is not the particular indebtedness set out in the answer of the company. The check referred to in this statement for $800, dated December 18, 1902, is payable to Thomas Evans and signed “Mansfield.” The recitation upon the face of the check, that it was given for payment of John Barr’s note, would not of itself charge John Barr with the amount of ' the check, and there is no evidence that would do so. Another check referred to, for $300 April 1, 1903, is not payable to John Barr as stated, but to Thomas Evans. On the face of the check appears the notation “John Barr note.” This would not charge John Barr with the amount of the check, but Mansfield testified, presumably with reference to this check, that he (Mansfield) got the cash and had it credited on a note of John Barr to Thomas Evans. This check, however, is also signed “P. Mansfield.” Another check for $25, January 27, 1903, is payable to John Barr and signed “Mansfield.”
These checks in dates and amounts correspond with items in the setoff pleaded by the Sheldon Canal Company, but - there is nothing in the evidence that in any way connects the Sheldon Canal Company with the checks, or that tends to show that they represent cash advanced *467to John Barr by the company. The gap between the canal company and the checks can not be bridged over by any inference which can be drawn from the fact that Mansfield was the secretary and treasurer of the company. In the entire absence of any evidence tending to establish any other conclusion, the checks must be taken to represent transactions between John Barr and Mansfield individually.
The itemized account, introduced in evidence by plaintiff, from the ledger of the Sheldon Canal Company, showing a balance of indebtedness against John Barr, likewise does not tend to establish the items of “cash advanced” by the canal company to John Barr, as set out in its answer. None of these items in the account correspond either in date or amount with those pleaded in offset, except the items November, 1902, $200, which might be referred to two items in the offset account of $100 each in November, 1902, but this item of $200 appears by the account itself in which it is shown to have been liquidated. The testimony, even if uncontradicted, does not establish any item of the account of the Sheldon Canal Company against John Barr pleaded in offset.
The motion for rehearing is overruled.
Overruled.
Writ of error refused.