| Tex. | Jul 1, 1856
The plaintiff exhibited two accounts; one a cash account, consisting of debits and credits ; the other, an account for board, &c. Upon the former no evidence was offered by the plaintiff; and it is evident the jury did not include, in their verdict, the small balance claimed to be due upon that account. The evidence related solely to the latter ; and that was the basis of the verdict. The accounts were distinct and independent. The admissions of payments, or the credits, upon the former were not intended, and cannot be held to apply to the latter. The former does not appear to have been before the jury. The trial and verdict were upon the latter : and the only question properly arising upon this appeal, is, whether the evidence was sufficient to warrant the jury in finding for the plaintiff, upon the second account. As to some of the principal items, there can be no doubt of the sufficiency of the evidence. But as to the residue, the evidence was circumstantial, and less certain than could be desired.— Vet, perhaps, it would be difficult, in most cases, to obtain more satisfactory evidence of an indebtedness thus created.— The rules of evidence are intended to be adapted to the ordinary transactions of men ; and are to be so applied, as, if practicable, to attain the ends of justice. It cannot be doubted that the evidence was admissible. It certainly conduced to establish the general correctness of the account: and we conclude there was not such insufficiency, or want of evidence, as to warrant this Court in reversing the judgment of the District Court refusing a new trial.
We are referred, on behalf of the appellant, to the case of Allen v. Brown, (11 Tex. R. 520) as an authority adverse to the decision of the Court in this case. And counsel for the appellee question the correctness of the principle, upon which
The present, it is to be observed, is unlike the case of Allen v. Brown. That was a suit upon a single account, upon which there was a certain sum credited by the plaintiff. There was and could be no question that the sum credited was to be applied as a payment upon the account, and the only account, in litigation. Here, it is evident, the credits on the first account, though admissions by the plaintiff of its liquidation, in so far, are not admissions of the payment of any part of the second account. There is no connection between the accounts. They are distinct and independent. The only object of introducing into the petition the first account was to recover the small balance due. That was not recovered ; and the account might; have been omitted altogether. It was not regarded upon the trial, and consequently is not under revision upon this appeal. The case is thus very clearly distinguishable from that of Allen v. Brown.
It is further to be observed, that that case was not, as assumed in argument on behalf of the appellee, a suit upon an account stated ; that is, an account balanced and rendered, with an assent by the debtor, or party of whom the balance is claimed, express or implied. Had it been such, or had the defendant pleaded, or claimed in his answer, the benefit of the payments, instead of relying upon a general denial, the judgment of the Court would doubtless have been different. It was a suit upon an open account; that is, an account not settled between the parties by either their tacit or express agreement. And the principal upon which it was decided was, that, in a suit upon an open account, the merely giving of a credit- or the admission of a payment upon it by the plaintiff, would not relieve him, under the general denial, from the necessity-
Judgment affirmed.