
    WHITNEY ET AL. vs. LYON.
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.
    The testimony of a witness, not objected to, will outweigh the statements of the defendant in his account, so far as he charges the plaintiffs for the amount of his salary; but will be received as evidence of the credits he allows for money received.
    This is an action to recover from the defendant the sum of $244 80, for moneys overdrawn by him as clerk of the plaintiffs, over and above his salary, which they allege was only $1000 per year.
    The defendant sets up an account against the plaintiffs, charging them at the rate of $125 per month for eight months, amounting to $1000 ; for which he prays judgment in recon- . vention.
    On the trial, Harris, a clerk for plaintiffs, declared that the defendant had received $911 46, which-he knew as he was the cash book-keeper; and that the latter acknowledged it in an account which he rendered to the plaintiffs, which he (witness) produced; and in which he charges $125 per month (or $1000) and gives credit for $911 46. Another clerk of plaintiffs swears that the defendant told him his salary was hut $1000 a year.
    The district judge was disposed to take the statement of the defendant, rendered to the plaintiffs, as containing the true account between them; especially as it was brought out in evidence by the plaintiffs’ witness. Judgment was given in favor of the defendant for $88 54, and the plaintiffs appealed,
    
      Benjamin, for the plaintiffs and appellants.
    
      Elwyn, contra.
   Martin, J.

delivered the opinion of the court.

The plaintiffs are appellants from a judgment which condemns them to pay a balance on a reconventional demand of the defendant.

This suit was instituted to recover the sum of $244 80, for moneys which the plaintiffs allege were overdrawn and received by the defendant while in their employ as a clerk. He pleaded a general denial and reconvened, claiming one thousand dollars for eight months salary as levee and corresponding clerk of the plaintiffs; being at the rate of one hundred and twenty-five dollars per .month.

On the trial the plaintiffs offered Harris, one of their clerks, as a witness who proved that the defendant told him his salary was only at the rate of one thousand dollars a year; and this witness produced the account which the defendant had rendered to the plaintiffs, in which he charged his salary at one hundred and twenty-five dollars per month for eight months, and gave credit for $911 46, which he had received ; striking a balance of $88 54 in his favor. The district judge received this account as full evidence of what it contained on both sides, and gave judgment accordingly; notwithstanding the testimony of the plaintiffs’ witness which was received without any objection, and showed that the defendant acknowledged he agreed to serve on a salary at the rate of one thousand dollars a year, instead of one hundred and twenty-five dollars per month, as charged in his account. This testimony not being objected to it is useless to enquire whether its admission could have been successfully resisted in contradiction of the written evidence under the defendant’s own hand, produced by the plaintiffs.

The testimony of a witness, not objected to, will outweigh the statements of the defendant in his account, so far as he charges the plaintiffs for the amount of his salary; but will be received as evidence of (he credits he al-ows for money ¡ceived.

The judge a quo in our opinion ought to have considered this testimony and weighed it with the written evidence. This we have done, and find that the testimony of the witness preponderates over the written evidence resulting from the account.

The defendant acknowledges in his account to have received moneys of the plaintiffs amounting to $911 46 cents ; and after deducting the amount due to him for his salary, during eight months, at the rale of one thousand dollars a year, amounting to $666 67, there remains a balance due to the plaintiffs of $244 79, .and for which they are entitled to judgment.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed ; and proceeding to give such judgment as in our opinion ought to have been given in the court below, it is ordered, adjudged and decreed that the plaintiffs do recover of the defendant, the sum of two hundred and forty-four dollars and seventy-nine cents ; and that there be judgment against him on his plea in reconvention ; he paying costs in both courts.  