#### R. Reisner & Company, Defendant in Error, v. Thomas Gordon, Plaintiff in Error.

Gen. No. 19,392.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1-913.

Affirmed.

Opinion filed May 12, 1915.

Statement of the Case.

Action by B. Beisner & Company, plaintiff, against Thomas Gordon, defendant, to recover an alleged balance of $244.78 due for goods sold and delivered by plaintiff to defendant.

The cause was tried by the court without a jury and resulted in a finding and judgment for the plaintiff for $244.78.

To reverse the judgment, defendant prosecutes this writ of error.

The evidence showed that from 1893 to 1897 defendant conducted a grocery for which he made daily purchases of bread from plaintiff, who, either in person or by his servant, delivered the bread to defendant at his place of business. . The account between the parties was kept as follows: Defendant had a book to which plaintiff had access, wherein was written, by the person making the delivery, the amount of bread delivered and the price thereof, and also the payments made therefor upon account. The book was not produced at the trial and there was no satisfactory evidence tending to show what became of it. In the usual course of business the book was retained by defendant. Defendant conceded that there was a balance due plaintiff when the parties ceased doing business in 1897. Proof offered by plaintiff tended to show that the amount of said balance was $360.05. Defendant was unable to state the amount of the balance. From *592June 12, 1902, to July 12, 1905, defendant made seven payments of $10 each to apply upon the balance due, and he also testified to a further payment of $45.30 on July 18, 1904. Plaintiff testified that the latter payment was made on July 18, 1907. The date upon receipt given for such payment appeared to have been changed. It was conceded that the payment of $45.30 was the last payment made by defendant. Two payments of $10 each were made by him in May and July, 1905.

Abstract of the Decision.

Account stated, § 25 * —when evidence sufficient to support judgment. Evidence in action of account examined and held sufficient to support judgment for plaintiff.

It was claimed by defendant that at the time of the payment of $45.30, the amount of the balance due plaintiff was in dispute between the parties, and that said payment was made and received as in full settlement of the claim which was then in dispute. The payment was made by a check of the Illinois Steel Company,, which defendant had acquired from the original payee, and was the only available fund which defendant had on his person when demand for payment was made. The receipt then given by plaintiff was on account, not in full. Defendant offered no explanation as to why this was so.

L. W. Carpenter, for plaintiff in error.

Frank Foster, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Baume

delivered the opinion of the court.