This is a suit on an open account for $249.93, for goods alleged to have been sold and delivered. The defense s'et up in the answer is that the account was extinguished by the acceptance of checks payable at future dates, which checks were not due at the time of the filing of the suit.
Plaintiff’s evidence shows that the checks referred to in the answer were given in payment of a note for $i,100 and had no connection whatever with the open account sued on.
Defendant offered no evidence at all either in support of its contention or in rebuttal of the testimony of plaintiff.
From a judgment rendered in favor of plaintiff, as prayed for, defendant has appealed, but has filed no brief with us, nor has its counsel favored us with oral argument. Plaintiff has answered the appeal asking that the penalty for delaying recovery by taking a frivolous appeal be awarded. It is very evident that the appeal was asked solely for the purpose of securing delay, and therefore plaintiff is entitled to the penalty prayed for.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by awarding to plaintiff and appellee 10 per cent of the amount thereof as damages for frivolous appeal and, as thus amended, affirmed.