
    A. L. Hunt et al., plaintiffs in error, v. H. R. Mewis, defendant in error.
    Action on Account: judgment not supported by evidence. In an action on an account, where a jury is waived and a trial had to the court, if the judgment is not supported by the evidence it will be set aside.
    Error to the district court for Pierce county. Tried below before Tiffany, J.
    
      Wigton & Whitham, for plaintiffs in error.
    
      Edward P. Holmes, for defendant in error.
   Maxwell, J.

The plaintiffs are wholesale merchants in Chicago, and the defendant is the proprietor of a retail store at Wisner and also at Pierce, in this state. This action is brought to recover a balance due for goods sold and delivered by the plaintiffs to the defendant. The defendant plead a set-off, and on the trial of the cause, a jury being waived, the court found the issues in his favor, and rendered judgment on the set-off for the sum of $38.23. The principal error relied upon is, that the judgment is not supported by the evidence. The testimony shows that the indebtedness was incurred in the year 1880. An itemized bill of the goods sold is set out in an exhibit attached to the deposition of one of the plaintiff’s witnesses. That these goods were bought and received by the defendant is not seriously questioned, but it is claimed that they were received at the Wisner store and not at the one at Pierce. In November, 1881, the defendant wrote to the plaintiffs’ traveling salesman that the plaintiffs “have commenced suit against me on an itemized bill of goods I bought for the Pierce store, where I hold my receipts showing full payment on all accounts. against me at Pierce, consequently I denied the claim in court as a just debt against me; but I do not deny owing them 'at the "Wisner store, which my brother Fred, runs, as his books show that I do owe them a balance. But you can be assured that I will pay them every cent, including interest, that is justly due them, and no more; and had they not been in such a terrible fury in bringing suit against me the matter could have been settled by this time,” etc. The defendant does not deny any of the statements of this letter, and does not claim to have paid any portion of the account since the letter was written. The action is not brought on the account with the Pierce store alone, but for a general balance upon the account. This being so, it is very clear that the defendant is indebted to the plaintiffs, and that the judgment is not sustained by the evidence. It is therefore set aside and a new trial granted.

Judgment accordingly.

The other judges concur.  