Schock v. Bieler

5 Ohio C.C. 49

• Court: Ohio Circuit Courts
• Decided: November 15, 1890
• Status: Published

Opinion

Cox, J.

The action below was founded on a book account for goods sold. The account, as presented, ran from July 5, 1873, to July, 1888, with credits at different tildes up to the 25th of June, 1887. The defendaut claimed to have paid in full for every item in the account purchased after July 21, 1877, and plead the statute of limitations as to all purchases within six years of the time of the bringing of the action. At the trial, the defendant offered in evidence separate bills and receipts for each of the items in the account subsequent to July 21, 1887, and that his payments had been made to an authorized agent of the plaintiff. This evidence the trial judge refused to admit, and a verdict was returned against the defendant for $i>02.78, the balance on the whole account.

In this we think the court erred. The evidence was proper, inasmuch as it tended to prove that neither party recognized the payment as being an admission of the correctness of any former account, but that each payment made on a separate item as furnished, and as appropriated to the payment of that item, tended to show the contrary. It does not come within the principles of the case of Bogart v. L. M. Cox, 4 Circuit Court Reports, 289, for there it was held that it must appear that the payment was on account of a greater sum due from defendant to plaintiff on the prior account and as a part payment thereof.

Judgment reversed and cause remanded.