Townsend v. Hague

Stephens, J. 1. In a suit on a contract for services rendered by the plaintiff, upon proof merely of the rendition of services by the plaintiff as contracted for, there is no presumption of payment, but there is a presumption of nonpayment. Although the evidence presents an issue of fact as to whether the services were contracted for and rendered as alleged by the plaintiff, yet where there is no plea of payment and no evidence tending to establish payment, the admission in evidence of testimony of the plaintiff that the defendant’s intestate, to whom the alleged services were rendered, had not paid the plaintiff for the services amounted to no more than a corroboration of the presumption of nonpayment; and, although such testimony was inadmissible under the provisions of section 5858 (1) of the Civil Code of 1910, as being testimony as to transaction between the plaintiff and the intestate, the admission in evidence of such testimony was nevertheless harmless to the defendant, and was therefore not error. As a case directly in point, see Lerche v. Brasher, 104 N. Y. 157, which is cited with approval in Tippin v. Brockwell, 89 Ga. 467 (2) (15 S. E. 539). 2. The evidence authorized the verdict found for the plaintiff, and no error of law appears. Judgment affirmed. Jenkins, P. J.. and'Bell, J., concur.