
    Tabb v. Davis.
    (In Banc.
    Nov. 24, 1947.
    Suggestion of Error Overruled Jan. 12, 1948.)
    [32 So. (2d) 575.
    No. 36602.]
    H. F. Jones, of Belzoni, for appellant.
    
      W. D. Womack, of Belzoni, for appellee.
   Alexander, J.,

delivered the opinion of the court.

Tabb brought suit upon a note in the sum of $375 as stated rent upon a farm for the year 1938. The defense was payment by certain checks, assignments and personal property. To meet this defense, Tabb undertook to show that these credits were applicable to a similar note simultaneously executed by Davis for the 1937 rent.

There was a conflict in the testimony of the parties, the only witnesses, as to whether the note for 1937 rent had been executed. The amount of the credits is agreed. The issue, therefore, was a factual one, and involved the question whether the payments were made upon the indebtedness for 1937 or for 1938. Therefore, the fact of an existing debt at the time of the execution of the note sued upon is more important than the fact that a second note for 1937 was given to evidence it.

Upon this issue, Tabb introduced two letters admittedly written by Davis, the first dated December 21, 1937, and the second dated February 4,1938. The record sufficiently discloses that both were written before the note or notes were executed. We do not set out the text of these letters, but find that both admit and deplore the existence of a prior indebtedness for rent and the tenant’s inability to pay same, except by the delivery of certain livestock and other property.

All the circumstances are consistent with plaintiff’s contention, and in view of the defendant’s burden of proof as to payment, the admissions in these letters weigh heavily in the balance. In this view, the verdict for the defendant is against the overwhelming weight of the evidence, and, despite our disinclination to disturb a finding by jury, we are constrained to remand the cause for a new trial.

Reversed and remanded.  