
    No. 2475.
    Hodges v. Tarrant.
    April Term, 1889.
    July 17, 1889.
   Opinion by

Mr. Justice McTver,

In this case the court held,—

1. That where the answer puts in issue who constituted a partnership and who are its survivors, these facts may be proved by a member of the firm or by any other person.

2. Facts which are not stated, except in the exceptions, are not to be considered by this court.

3. Where a verbal order for goods is taken down by a travel-ling salesman in his order book, and a copy written out and forwarded to the sellers, the copy received by the sellers is higher evidence of the sale than the memorandum in the order book.

4. And if, upon looking at such order, the salesman’s memory is refreshed as to the facts, he may testify to the sale as made by him.

5. The fact that the salesman wrote down the order as verbally given to him by the buyer, does not make it the buyer’s written order, so that the sale could not be proved by parol.

6. Where a debtor makes a written calculation, thereby ascertains the balance due by him, and verbally admits his indebtedness for such amount, his admission may be proyed without the production of the written calculation.

7. In action on an open account, credits thereon are matters of defence, and the plaintiff’s books are not necessary to their proof as the highest evidence; he may prove them by parol. Judgment affirmed.  