
    Skillen v. McNeely.
    APPEAL from the Marion Common Pleas.
   Downey, C. J.

McNeely sued Skillen for a balance of the price of flour barrels sold and delivered. Skillen answered, first, by a general denial; and, secondly, set-off for the price and value of goods, wares, and merchandise sold to the plaintiff, and cash paid to the plaintiff and for his use. Reply by general denial to the second paragraph of the answer. Trial by the court; finding for the plaintiff; motion for a new trial overruled; and judgment.

The reasons assigned for a new trial are, first, the finding of the court is contrary to the evidence; second, the court erred in excluding testimony material to the defendant, on the plaintiff’s objection.

The errors assigned are, that the court erred in refusing to admit in evidence a written memorandum of the number of staves made by one Hays, and in refusing a new trial.

The memorandum, having been made by a third person, was not admissible as evidence against the plaintiff. It seems, however, as we understand the record, that this memorandum was in evidence as part of the deposition of Hays; and if so, there would seem to be no reason for again introducing it in evidence.

S. E. Perkins and R E, Perkins, Jr., for appellant.

J. S. Harvey, for appellee.

We have examined the evidence which is set out in the record, and are of the opinion that it is sufficient.

The judgment is affirmed, with costs, and five per cent, damages.  