After carefully re-reading the record in this case and considering the briefs filed on rehearing, we, by a somewhat different route, again are impelled to the conclusion that the judgment of the lower court rejecting plaintiff's demand is correct.
Plaintiff sold gasoline to defendant under a sound system calling for a signed receipt for every gallon delivered. They chose to flagrantly deviate from this method, sometimes having their own deliverymen sign the receipts and at others affixing defendant's name in their office after purported delivery.
The account is questioned by defendant, in apparent good faith, based upon a physical gauge of his tank showing a large shortage in the sales claimed. Under these circumstances plaintiff is called upon to prove its account with exactness and precision. If, because of the justness of the defense or its own slipshod methods, it cannot do this, recovery must be denied. Counsel for plaintiff insists that his client should be given judgment because of defendant's promise to pay. We do not find that defendant ever abandoned his protest. The promise was conditional upon the size of the payments required and was apparently made in an effort to avoid litigation, defendant never before having been sued or involved in any dispute with other oil concerns. We think this is true despite the terms of a letter of July 16, 1931.
For the above reasons our former judgment is reinstated and made the final judgment of this court.