
    TIPS v. BUTLER.
    No. 3783.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1938.
    J. O. Faith, of Karnes City, for appellant.
    Stanley Kulawik, of Yorktown, • for ap-pellee.
   HIGGINS, Justice.

The appellant Tips brought this suit against the appellee'Butler to recover upon a note in the principal sum of $210, dated Septeriiber 23, 1932, due October 1, 1933, with interest at the rate of ten percent per -annum from date, containing the usual attorney’s fee clause of ten percent, which note was alleged to have been executed by Butler. Certain credits were admitted to have been made in 1933, reducing the amount due to $130.40, as of the date of the last payment made December 20, 1933. The defendant answered setting up certain payments amounting to $189.30. lie also undertook to plead non est factum, but his pleading is insufficient as such. The purport of the plea is simply that the note now presented to the Court is a copy bearing a signature in pencil which is not the way defendant signed his name to notes. On trial he admitted the execution of a'note in plaintiff’s favor as described in the petition, but said the note he executed was signed with fountain pen and not with pencil. The effect of his testimony, is an admission that he signed the note sued upon, but simply claimed he signed it with a pen instead of by pencil. A general verdict was returned in favor of the defendant and judgment rendered accordingly, from which the plaintiff appeals.

-According to the defendant’s own evidence the payments made by him upon the note amounted to $189.30, and the plaintiff in any event is entitled to recover the balance with interest and attorney’s fees due upon the note after allowing the .credits claimed by the defendant. The judgment is reversed and here rendered in favor of plaintiff for said balance. The credits will be allowed as of the dates alleged in the answer.

Reversed and rendered.  