Masser v. Bowen

29 Pa. 128

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1858
• Status: Published

Opinion

The opinion of the court was delivered by

Lowrie, J.

The plaintiff below having shown that the defendant was indebted to him, we must presume that a payment made to him by the defendant, after such debt accrued, was made on account of the debt. If it was really made on some other account, we must have some evidence of this before we can change the presumption.

A check by the defendant to the plaintiff’s order, endorsed by him and paid, is evidence that the amount of it was paid to the plaintiff on account of such debt as we know to have existed, and it cannot be excluded because the court may think it belongs to a different transaction. If the plaintiff gives evidence that it was given on another account, the jury must decide how the fact is. We think the check ought to have gone to the jury.

Judgment reversed and a new trial awarded.