
    M'COY’S EXECUTORS vs. BYRNE.
    Eastern Dist.
    
      May, 1840.
    ArPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where the evidence is contrary to the judgment appealed from, it will be reversed, and such a one rendered as is supported by the proof in the record.
    This is an action against Charles Byrne, and three others, for auction commissions due to the late Isaac L. M'Coy. The petition charges that the defendants are indebted in the sum of one thousand nine hundred and six dollars for the amount of commission and charges on the sale of thirty-one lots amounting to ninety-five thousand and three hundred dollárs. Judgment-is prayed against the defendants, four in number, jointly and severally for said sum. An account of sales, commission and charges is annexed.
    Byrne answered and pleaded a general denial. ' The suit was discontinued as against the other defendants. The only piece of evidence in the record is an account in M'Coy’s hand-writing, showing Byrne’s proportion of the commission and charges to be five hundred and fifty-seven dollars and twenty cents.
    The district judge was of opinion the plaintiffs had made out their case for seven hundred and twenty-two dollars and forty cents; gave judgment accordingly, and the defendant appealed.
    
      Strawbridge, for the plaintiffs.
    
      Worthington, contra.
   Morphy, J.,

delivered the opinion of the court.

The plaintiffs claim one thousand nine hundred and six dollars for commissions due the late Isaac L. M‘Coy, as auctioneer on the sale of thirty-one lots of ground made for account and by order of defendants, Byrne and others. Charles Byrne filed for his separate answer, a general denial. Judgment having1 been rendered against him for seven hundred and twenty-two dollars and forty cents, he appealed.

The only evidence which the record exhibits is a document introduced by the defendant himself; it is an account admitted to be in the hand-writing of M‘Coy, showing the amount of the sales made, and the commissions on them; the deductions allowed for such sales as were not carried into execution, &c. From this paper, the proportion to be paid by the appellant.of the-commissions claimed would appear to be five hundred and fifty-seven dollars and twenty cents, instead of seven hundred and twenty-two dollars and forty cents, allowed by the judge below. How this latter sum has been arrived at we are at a loss to conjecture, from any thing to be found in the record.

It, is, therefore ordered, that the judgment of the District Court be avoided and reversed; and it is further ordered, that Horace C. Cammack and William M'Cawley, testamentary executors of Isaac L. M'Coy, deceased, do recover of said defendant, Charles Byrne, five hundred and fifty-seven dollars and twenty cents, with costs in the court below; those of this appeal to be borne by the plaintiffs and appellees.  