Lewis v. McNeal

SHAW, J.

In this case plaintiff, as administratrix of the estate of George E. Lewis, her deceased husband, sued for the recovery of a balance alleged to be due his estate upon a contract made by defendant with deceased whereby he was employed to furnish labor and materials in the construction of a house of the admitted cost of $8,394.50, upon which, as alleged in the complaint, defendant paid $5,587.86, leaving a balance unpaid of $2,806.64. It was also alleged that defendant was indebted to plaintiff in said sum upon a mutual, open, and current book account. By her answer defendant admitted her employment of deceased, and that he furnished material and labor and made expenditures in the construction of said house in the sum of $8,394.50, all as stated in the complaint, but alleged that she had paid all of said sum due under the employment, save and except the sum of $284.44, which was the balance due to plaintiff; and likewise denied any indebtedness in excess of $284.44 upon the alleged open, mutual, and current book account. The court found the allegations of the complaint to be true and that plaintiff was entitled to judgment as prayed for, from which judgment so entered defendant has appealed.

While defendant attacks the findings for want of sufficient support, her chief contention is that the court erred in the admission of evidence.

Having admitted the original indebtedness of $8,394.50, the burden of proving payment thereon of other

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than the sum of $5,587.86, admitted in the complaint to have been made, devolved upon defendant. In her own behalf she testified that on September 15th she paid the sum of $2,000 to George E. Lewis on account of said indebtedness, which payment was in cash from money which she had, some six weeks prior thereto, taken from her safe deposit vault and kept in her house until the time of making said payment; that it was paid to him in front of the Hollywood Bank, at which place she met Lewis, and upon receiving it she gave to him a typewritten statement, dated July 29th, showing the condition of her account, and which statement he had delivered to her about August 1st, and going into the bank, while she went shopping, he indorsed thereon, in his own handwriting, under date of September 15th, the payment of the $2,000, and as so indorsed returned the same to her. She also testified that she, on April 16, 1920, paid Lewis $500 in cash, credit for which $500 was given by him in the typewritten statement delivered to her on August 1st wherein he acknowledged payment of the gross sum of $4,587. It is admitted that on July 21st defendant paid Lewis by check $500, and on August 16th paid him $500; that on said last date Lewis in his own handwriting made the following indorsements on said typewritten statement: “July 21, received by check $500.00; August 16, received by check $500.00”; and that thereafter, to wit, on October 26th, she gave Lewis a check for $500, upon which she says was written, in the lower left-hand corner, “Balance due, $305,” which was intended to exhibit to him the balance due on her account. The contention of plaintiff is that the typewritten statement rendered under date of July 29th, and showing payment of $4,587, was intended to include the $500 paid on July 21st, and that the indorsement thereon as to such payment, made by Lewis August 16th, was an error, and in fact a duplicate receipt of the $500 paid in July; whereas defendant claims that, having erroneously omitted the same from the typewritten statement, he made the indorsement to cover it.