
    Pauley v. Short.
    Practice.—Pleading.—Evidence.—Where, in an action on account for goods sold, the defendant answered payment, to which the plaintiff replied the general denial;
    
      Held, that the defendant could not, on the trial, claim to be surprised by the testimony of plaintiff that certain payments made were upon other than the account sued on.
    APPEAL from the Vanderburg Common Pleas.
   Worden, J.

—This was an action by the appellee against the appellant for beef and pork sold and delivered by the plaintiff to the defendant. Issue, trial by jury, verdict and judgment for plaintiff. '

There is no question before us, except that which arises on the evidence. On the trial, the defendant admitted the plaintiff’s account, and based his defence on the ground of payment. He gave in evidence several receipts, given him by the plaintiff for money received “on account;” but the plaintiff testified that some of the receipts were given on different accounts from that sued upon. This, the defendant claims, took him by surprise. The defendant had pleaded payment, and the plaintiff had replied in denial. We think the defendant might, in the exercise of reasonable ■diligence, have anticipated that the plaintiff would contest the application of the payments made to the account sued upon.

W. F. Pidgeon, for appellant.

y. S. Pritchett and G. G. Reify, for appellee.

The evidence sustains the verdict and judgment, and there is no ground upon which a new trial should have been granted.

The judgment below is affirmed, with costs and six per cent, damages.  