
    E. J. Vance v. Phil. Claiborne.
    "When the plea of part payment in a suit on note is so indefinite that it cannot be determined whether the pleader intended to set it up as a part payment of the mote, or a part payment of the original indebtedness before the execution of the note, no evidence should be admitted under the plea.
    
      Appeal from Bastrop. Tried below before the Hon. J. P. Richardson.
    Chandler, Carleton & Robertson, for appellant,
    insisted that the judgment should be reversed on account •of the ruling of the court below admitting evidence of ■payment which was not set forth in appellee’s pleading with certainty, either as to time or amount, and cited Wells v. Fairbank, 5 Texas, 584; Able v. Lee, 6 Texas, 431; Holliman v. Rogers, 6 Texas, 91; Yale v. Ward, 30 Texas, 17; Whitlock v. Castro, 22 Texas, 109; Hall v. Jones & Jackson, 3 Texas, 305; Chrisman v. Miller, 15 Texas, 160; Dawson v. League, 16 Texas, 407. Also that the judgment was not authorized under the evidence, because if appellee were allowed all the credits claimed ■there would still be due on the note $516.64.
   Ogden, P. J.

This suit was brought by appellant upon a certain promissory note, executed by appellee in 1861. Upon the note were several credits indorsed, and were admitted by the plaintiff as partial payments. The defendant below attempted to plead other payments and offsets, which, if well pleaded and proven, would have greatly reduced the amount due on the note. But some of those offsets were too indefinitely and vaguely pleaded to authorize the admission of any proof in their support. We, therefore, are of the opinion that under the pleadings the court erred in overruling the objection to the introduction of any proof as to the Guy note and the claim for commissions. These items were so indefinitely pleaded it is impossible to detemine whether the pleader intended to set them out as part payment of the note or as part payment of the original indebtedness before the execution of the note. And we here remark that the evidence as to these 'two .items, though erroneously admitted under the defective pleading, has failed to throw much light en-tile facts of the case and has left them in great doubt and; uncertainty, and in consequence it would not be a matter-of surprise if the jury were confused and misled in their verdict.

But admitting that every item which was attempted to-be set up as an offset or payment was well pleaded and that the proof fully sustained the plea,' and giving credit-for all payments admitted by the plaintiff below, and all claimed by'the defendant, still there is due and unpaid on the note several hundred dollars, while the verdict and judgment is for the defendant.

This judgment under the pleadings and proof cannot possibly be correct, and the court erred in overruling the-motion for a new trial. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.  