Dayton Rubber Manfg Co. v. Martinez

2 Pelt. 397

• Court: Louisiana Court of Appeal
• Decided: May 22, 1919
• Docket: NO. 7531
• Status: Published

Opinion

O P I N I O N.

By his Honor John st. Paul,

This is a suit upon an open account contracted during the years 1916 and 1917. The defense set up is that the sane is not due ty defendant hut by his son Joseph P. Martinez, Junior,^who has since gone into bankruptcy.^)

It is not disputed that in 1915 the defendant beoame a "selling agent" for plaintiff and that the business of the agenoy was attended to wholly by defendant's son. In Maroh 1916 the agency fell behind in its payments, and defendant settled with plaintiff by giving his notes payable from month to month.

It is olaimed that at the time of this settlement, defendant notified plaintiffs that he was withdrawing from the business; and that thereafter the credit was given to the son.

But there ife not one iota of evidence in the record tending to show that any such notice was ever given plaintiffs, who on their part deny that any such was ever received. And on the other hand it abundantly appears that plaintiffs had no faith oltheg in the son's ability to pay; that they inquired very particularly into the financial responsibility of the father, who has ample means, and made it very distinct that they looked to him for payment.

As defendant affirmed a change in the existing business relations, the burden of proof was upon him to show it; and in this he has very clearly failed.

The correctness of this account is not to be doubted. It is established with a fair degree of certainty by plaintiffs themselves, but defendant's son, who knew all about it, does not deny it and has even attested its absolute correctness by putting it down on his bankruptcy sohedule.

May 22 1919

The Judgment appealed from is therefore reversed, and it is now prdered that plaintiffs the Dayton Rubber Manfg Co, have Judgment against defendant Joseph P. Martinez, Senior, for the full sum of Fifteen hundred and forty seven & ZO/ffiO ($1547.20) with legal interest from October 6th, 1917 until paid and costs of both courts.

New Orleans La,