Frey v. Sessions Loan & Trust Co.

Jenkins, P. J. Sessions Loan & Trust Company sued Frey on a note, and he filed a plea setting up certain alleged payments. The plaintiff admitted two of the payments, and the jury were instructed to reduce the claim accordingly. The plaintiff denied a payment of $325 and another of $125, pleaded by the defendant. The only evidence admitted in support of the plea was with refer [415] enee to the alleged payment of $125, aud the plaintiffs secretary and treasurer testified that this payment was, with the defendant’s knowledge, credited upon another obligation owing by .the defendant. The charge of the court restricted the jury to a determination of the issue made by the testimony as to the payment of $125, and the jury found in favor of the plaintiff. The defendant excepted to the overruling of his motion for a new trial, and assigned error upon the rejection of a certain fi. fa., based upon another debt and tendered in evidence by the defendant for the purpose of showing that the disputed payment was not credited thereon. Exception is also taken to the charge of the court restricting the jury to a determination of the issue made by the evidence with referance to the $125 payment. The ground of the motion for a new trial which complains of the rejection of the execution tendered by the defendant presents nothing for determination. The execution is not set out in full or in substance, nor is a copy attached as an exhibit, and it can not be determined from this ground of the motion or from the record when the execution was issued,' whether before or after the alleged payment, and consequently there is nothing to indicate whether the execution should or should not indicate the payments claimed by the defendant. Wynne v. State, 35 Ga. App. 666 (134 S. E. 181); Citizens Auto Co. v. State, 35 Ga. App. 166 (2) (132 S. E. 258); Clay v. Austell School District, 36 Ga. App. 354 (136 S. E. 540). There being no evidence to indicate any payment by the defendant other than that of $125, the court did not err in restricting the jury to a determination of the issue made as to whether such payment had or had not been made. The evidence authorized the verdict in favor of the plaintiff, and the court did not err in overruling the motion for a new trial. Judgment affirmed. Stephens and Bell, JJ., concur.