#### EQUITABLE MANUFACTURING COMPANY v. J. A. SEXTON.

(Filed 19 March, 1913.)

1. Courts — Justices of the Peace — Goods Sold and Delivered — Verified Statement — Prima Facie Case — Interpretation of Statutes— Rebuttal.

In an action before a justice of the peace for the purchase price of goods alleged to have been sold and delivei*ed, the verified itemized account is made prwna fade evidence by Revisal, see. 1625, which may be rebutted.

2. Same — Evidence—Questions for Jury.

Where a prima facie case is made out under Revisal, see. 1625, in an action for goods alleged to have been sold and delivered,. *502ancl the defendant introduces evidence tending to show that they had been shipped to him- without his knowledge, and that when he ascertained the name of the shipper he at once notified him that the goods were subject to his order and asked disposition, it was not incumbent upon the defendant to send the goods back till he received the instruction asked for, and the evidence, if the jury finds it to be true, rebuts the prima facie case; and the fact in this case, that the defendant kept the goods in his store for more than a year, affected> only the credibility of his evidence in its consideration by the jury.

3. Courts — Justices of the Peace — Goods Sold and Delivered — Pleadings — Denial—Issues.

Where an action for the sale and delivery of goods is brought in a court of a justice of the peace, and the defendant admits that his clerk had the right to buy the goods, but denies the account, an issue is raised' as to whether the goods had been purchased, and his liability for their payment.

Appeal by defendant from Ferguson, J., at November Term, 1912, of HaRNEtt. ’

No counsel for plaintiff.

Clifford & Townsend and D. H. McLean & Son for defendant.

ClaRK, O. J.

This case was tried on appeal from a justice of tbe peace. Plaintiff introduced an itemized statement of account, duly verified, for a lot of jewelry alleged to bave been sold and delivered to tbe defendant, price $125, and rested. Tbe defendant testified that be bad never ordered any goods from tbe plaintiff; that some goods of tbe description set out in tbe plaintiff’s verified account came, but he did not know from whom, and when be did find out, be notified tbe plaintiff that they were held subject to its order; that be bad not sold any of tbe goods nor authorized them to be sold, nor bave any been sold, so far as be knows; that a day or two before be was served with warrant, be received a letter from tbe plaintiff to ship tbe goods back, and be tendered them to tbe plaintiff’s attorney,- who refused to receive them; that tbe goods were shipped to him without authority and were received by some clerk and placed in tbe store without bis knowledge.

*503The verified itemized account is made prima, facie evidence. Eevisal, 1625. But the evidence o£ the defendant above stated was competent in rebuttal, and should have been submitted to the jury. It was error to direct the jury, if they believed the evidence, to render a verdict for the plaintiff. If the defendant’s evidence was believed, he rebutted the prima, facie ease shown by the verified account.

We learn that his Honor was impressed by the fact that the goods were in the possession of the defendant from May, 1908, to December, 1910. But the explanation of the defendant, if believed, is that he was not aware that the goods were in his store for some time, and that the first intimation he had was the receipt of a dun for the amount, and that he thereupon notified the plaintiff that'he held the goods subject to its order. It was not incumbent upon him to send the goods back till he received the instruction of plaintiff in reply, and if it is true, as, the defendant testified, that he did not order the goods and had not authorized any to be sold, and that he notified plaintiff that he held them subject to his order, whatever inference might be drawn from his long possession of the goods was a matter of fact for the jury; and not one of law for the court.

It is true that the justice in his return sets out that in the trial before him the defendant admitted that his clerk had the right to purchase goods, but he added that the defendant “denied this account.” So the issue was raised. There was no evidence that any clerk ordered the goods. The verified .account being only prima facie evidence, in instructing the jury to return a verdict for the plaintiff, there was

Error.