Sawyer v. Hannah

Bloodwoeth, J. 1. The court did not err in “overruling and disallowing” the amendments to the answer of the defendant. 2. In her petition the plaintiff alleged that the defendant was indebted to her “in the sum of $4800, besides interest at 7% per annum from the 2d day of January, 1920.” This was denied by the answer of the de^ [424] fendant. The burden was upon the plaintiff to show that the defendant owed her the full amount sued for, before she could recover that amount. There was evidence from which the jury' could have decided that if defendant owed the plaintiff any amount, it was less than $4800. The judge therefore erred in charging the jury that “if plaintiff is entitled to recover at all, she would be entitled to recover $4800, with 7% interest from January 2, 1920, down to the present time.” Decided October 6, 1925. Kelley & Kelley, I. L. Oakes, for plaintiff in error. O. A. Nix, W. L. Nix, contra. 3. As a new trial results from the foregoing ruling, it is unnecessary to consider the other grounds of the motion for a new trial. Even if they show error, they are not such as are likely to recur on another trial of the ease. Judgment reversed. Broyles, O. J., and Luke, J., concur.