
    William M. Kelley vs. James R. Thurlough.
    Cumberland County.
    Decided September 9, 1925.
   An action of assumpsit to recover for merchandise sold and delivered. The defendant set up under a brief statement as a special matter of defense, not a right of set off, but an agreement to apply the amount due the account upon a- note given the- defendant by the plaintiff. A jury found for the plaintiff. It comes before this court on a motion for a new trial on the usual grounds.

Richard E. Harvey, for plaintiff.

Cook, Hutchinson & Pierce, and Edward T. Atwood, for defendant.

The amount and delivery of the merchandise was not in dispute. A question was raised as to the price agreed to be paid per gallon for gasoline.

The defendant testified, and contends that the only reasonable inference to be drawn from the evidence is, that he was authorized to credit the amount of the bill upon a certain promissory note given to him by the plaintiff in part payment for some real estate.

The plaintiff denied such an agreement and says the defendant had no such authority and did not so credit the goods according to his own testimony.

No set off being pleaded and having set up an, agreement to credit the debt of defendant on plaintiff’s note, 'the burden was on the defendant to prove the agreement and the application. The jury must have believed the testimony of the plaintiff as to the price to be paid, and either that there was no agreement to credit the merchandise on the note or that no application had ever been made.

We cannot say that, having seen and heard the witnesses, the jury were clearly wrong in their conclusions. Motion overruled.  