Opinion by

The household goods of Lutz and his wife were levied upon by virtue of a warrant of distress issued by their landlord for nonpayment of rent. The goods had been obtained from the M. H. Pickering Company upon what are ordinarily known as installment leases and the company after distress was made replevied the goods. Lutz claims that he has fully paid for some of the goods and that they belonged to him. Mrs. Lutz is not a party to the action, she not. having been summoned.

The first lease is dated March 10, 1910, and is signed by Lutz and contains on the reverse side a list of articles amounting to $546.96 and credits of $413.25. This lease-was originally for goods to the value of $43.26 but Lutz' increased the amount by subsequent selection's to-$162.25 and the remainder of the above total is for goods his wife leased. Another lease was made by Mrs. Lutz, *477March 1, 1911, and she also from time to time selected additional goods which were endorsed on the original lease of her husband ‘above referred to and the articles bought by Lutz and Mrs. Lutz taken together make the total above set forth. The practice of the parties was to give a new lease when new goods were selected but invariably such goods were endorsed on Lutz’s first lease. Each of the leases provides that all prior leases shall be null and void and shall be merged in the last lease. This evidently refers to leases signed by the same party. Thus, if we were to apply this clause, the last lease signed by Lutz- would stand as his present contract and the last signed by the wife would be her contract, but the merger clause would not operate so as to merge all the leases. She was not bound by the provisions of his contract nor was he by hers unless' it be shown by some act of theirs that such was the understanding of all the parties. The course of dealing indicates that the first lease above mentioned defined the status of the parties and included all the transactions between them. Notwithstanding the merger clause, the lease contained an endorsement as follows: “Any time you wish to lease new goods, bring this lease along so that we can add the amount of goods to yonr lease.” “See that all goods are entered on this lease.” We think under these circumstances the court could not conclude as a matter of law that the last lease made by Mrs. Lutz was the only one that could be considered. It is apparent that the whole matter was run as one account and that the sums paid from time to time were to be generally credited on the whole transaction. Lutz claims that he has paid the $163.25 worth of goods he contracted for. The court submitted the question to the jury who found in his favor. Is there sufficient evidence of payment to- sustain his position? The first lease will not help him any for on the face of it he owed $546 and paid $413.25. This leaves him still the debtor. At the time Mrs. Lutz appeai’ed in the matter he owed $163.25 less a credit of $59.50 or a net *478sum of $103.75. He argues that since that time he has paid more than enough to pay all the goods he leased. There is no doubt that he and his wife paid more than enough to cover the above sum but we have no evidence that he paid enough to liquidate his indebtedness. If we regard these transactions, as he claims, as two separate accounts, the presumption is that when he paid it was on his lease and what she paid was to be credited on the goods she had purchased. Neither of them attempt to show what each paid nor that there was any application of the money to either account. The first lease which remained in their possession shows the contrary. . He testifies that he had paid his lease but an examination of his testimony shows no proof to support his assertion. We quote the pertinent testimony: “Q. — Well, then, at the time your wife signed the last lease, the 10th of July, 1915, there was paid by you and your wife $413.25. A.— According to the bills. Yes, sir. Q. — And had that paid the first bill of goods which you bought? A. — It seems to me it ought to pay it up.” No effort was made to give amounts or dates but if details were impossible, he should have proven that the sums paid by him exceeded the amount he owed. It was the duty of the defendant to prove his case. His answer, that it seemed to him that what he had paid ought to pay it up or his declaration that he had paid it, had no value. That was mere guess work and any verdict founded upon such evidence must of necessity be of the same character. There was no evidence in the cause, no testimony submitted, that would justify an inference on the part of the jury that Lutz had paid all he owed to the Pickering Company on the agreements under which he claims to have the title to the goods in question.

The judgment is reversed and the record remitted with instructions that judgment be entered in favor of the appellant.