
    9774
    RAWL v. ABLE.
    (93 S. E. 1054)
    1. Payment — Evidence.—Where defendants’ testimony to show payment lacks positiveness and definiteness, it is insufficient.
    2. Appeal and Error. — The burden is upon appellant to show in error in findings of fact by a chancellor.
    Before Wilson, J., Lexington, September, 1916.
    Affirmed.
    
      Action for foreclosure by W. B. Rawl against R.’ Glover Able and others. From decree for plaintiff, defendants appeal.
    
      Mr. C. M. Bfird, for appellants.
    
      Messrs. Thurmond, Timmerman & Callison, for respondent.
    July 19, 1917.
   The opinion of the Court was delivered by

Mr. Justice Gage.

Decree for foreclosure and sale. There is but one exception, and that is the plaintiff received from the defendant, Able, on June 1, 1908, $501.14, which the defendant, Able, says ought to have been put on the note sued upon, and which contention the Circuit Court disallowed. Said appellant says the testimony preponderates against the Court’s conclusion. We have examined the testimony, and it discloses that Able owed Rawl other debts than that evidenced by the notes sued on. The defendant, Able, testified that he thought it was Rawl’s “intention to do what is right abour. it.” He also testified he kept no books, except “an ordinary daybook,” and that even was not at the hearing, and that he testified from memory. The defendants’ testimony lacks positiveness and definiteness; it does not satisfy. The plaintiff, too, admits his books were “not in first-class shape;” but he said he could always understand them, that he kept them himself, and that the books showed the transaction he testified to. The statement of the account is printed in the “case,” and we agree it is “not in first-class shape.” But we see no ground to modify the decree; it was incumbent on the appellant to show error, and that has not been done.

The decree is affirmed.  