Dennery v. Hyver

7 Pelt. 129, 1923 La. App. LEXIS 82

• Court: Louisiana Court of Appeal
• Decided: February 8, 1923
• Docket: NO. 8789
• Status: Published

Opinion

Dinkelspisl'; J<

Plaintiff alleges he 3old end delivered to defendant y.nria end merchandise which is set forth in the itemized account annexed to petition, claiming s. balance due of $115.15.

Defendant first filed »n exception, alleging that citation in this case v;rs not served on him in per~cn, hut vacs left at the olace where he works, handed to someone else. Subsequently, reserving the benefit of the exception, ■'•nawe'rs thst the amount due was for goods sold to his son, a minor, and that he alone dealt Tilth plaintiff and th°t defendant tas not responsible.

The testimony in this oe.se is conflicting, but it proves that the defendant w,\s in charge of and had sole control of the business both in Chartres Street r.nd subsequently Urse-line; the business carried on ••i?s * confectionery and bakery shop. Plaintiff's 'Witnesses prove that on several occa.ssicns the defendant called »t tnolr store, ordered seme goods there, '•vjjllst his son ordered other goods; the goods were delivered both :-t the Oh*ríres Street shop tnl at Urssline Street; tho driver of plaintiff's wagon who delivered thebe goods sirs'rs to their delivery it times stated, and he frequently saw the defendant in the shop together with his daughter and minor son; tnrt when the. receipts for the goods were given he paid no further .attention to the matter. It also appears that defendant acknowledged the indebtedness from tiras to time, at other times claiming that the goods wore sold to his son and that he was not responsible. Be that as it mb.y, the subsequent actions show that the business in its entirity was sold by the defendant to a Hr. Jchas for the sura of $850.00, $350.00 of which wsa in cash and the balance $600.00 to be p>:id nt c specified time; it was not paid and the defendant brought suit against Jchas for the difference, in the Civil District Court end there judgment was given to defendant against Joha.3 for the b^lanoe due $600.00. Besides this, on March 7th, 1932, vrtien defend-.nt vas pressed for payments both by plaintiri ana his counsel he wruue letter!

Feb. 8th, 1923.

"t am advised by my «.ttomsye ond compelled to at present to moke spplioption to the U. 5. Court for » petition in bankruptcy unless Oeo. Jonas mokes some orr^agem^nu m this matter within the next five days; cth--r"ise I »ra comosllesd to file petition within the next ten hays?} then to. J'one.3 will heve to settle this o-te with the ?ofer--s in Bankruptcy. Hoping that some thine- is done to prevent thi3 going ?ny further I remain

%, V. Hyver."

Therefore from all the evidence and surrounding circumstances in this oaee, we v.rs-cf she opinion th'-t defendant is liable the suit being aga-inst him and not igeinst his 3on, and plaintiff having fully made cut his cese. who The Judge of the Court >aquo/slsiw end heard all the ’'fitnesses in this otse end was in a better position to Judge of the truthfulness of this matter than vre are. His judgment was in favor of plaintiff and we concur therein.

For the reasons assigned-it is ordered, adjudged and deoreed, thet the judgment of the Court a.quo be end the seme is hereby affirmed, costa of both Courts to be paid by the defendant

-Judgment sffirmed-