#### R. D. ITTERLY v. E. C. HILL.

(Filed 31 May, 1939.)

Appeal by defendant from Sinclair, J., at October Term, 1938, of CUMBERLAND.

This was an action to recover $400 placed in tbe bands of tbe defendant by tbe plaintiff. Tbe defendant admitted tbe execution of three notes aggregating $400 to secure tbe money -received by him from tbe plaintiff, but alleges that said notes and money have been paid and overpaid, partially by tbe delivery of merchandise to tbe plaintiff and partially by cash, and asks judgment by way of counterclaim for $96.42. Tbe case was submitted to tbe jury upon appropriate issues, which were answered in favor of tbe plaintiff, and from judgment predicated upon tbe verdict tbe defendant appealed, assigning errors.

W. Louis Bilis, Jr., for plaintiff, appellee.

Robert H. Bye for defendant, appellant.

*798Per Curiam.

Tbe assignment of error principally relied upon by the appellant is to the charge to the effect that if the jury should answer the issue as to the indebtedness of the defendant to the plaintiff in any amount, they would answer the issue as to the indebtedness of the plaintiff to the defendant “Nothing,” since, if the defendant was indebted to the plaintiff, the plaintiff could not be indebted to the defendant. We see no error in this charge. The defendant admitted the receipt of the money from the plaintiff and execution of the notes for the same, and alleged payment and overpayment thereof by the delivery of merchandise and cash. Before the plaintiff, under these circumstances, could become indebted to the defendant it was necessary for the defendant to establish by the greater weight of the evidence that the notes (representing money received by him from plaintiff) had been paid before the plaintiff could be indebted to the defendant in any amount.

We have considered the other assignments of error and find them without merit.

No error.