Dow v. Shimmin

4 Mart. (N.S.) 53

• Court: Supreme Court of Louisiana
• Decided: July 15, 1825
• Status: Published

Opinions

Martin, J.

delivered the opinion of the court. This is an action. for work and labor done by the plaintiff!, for the defendant, in filling up the latter’s lots, with dirt, on a quantum meruit, S-lliO, are claimed.

Tiie answer admits the work and labor, but avers that it was performed under a special written contrae!, in which the compensation of the 'plaintiff was fixed at $195 50, The defendant avers the writing has come into the hands of the plaintiff, and he prays, that on his failing to produce it, testimony of its contents may be received.

The plaintiff had judgment for $195 50, and appealed.

.The record shews that at the trial, the defendant offered in evidence the written contract, which it appeared had been deposited with J. O’Brien. The plaintiff objected to its being read, as it contained sygnallamatie obligations, and was not made double. The plaintiff’s objection was overrulled, and the plaintiff’s counsel took a. bill of exceptions.

The defendant offered O’Bryen, the writer and depository of the contract, to prove the execution and deposit of it. This was objected to. The plaintiff took a bill of exceptions, on the objection being overruled.

O’Brien deposed, when the written contract, was entered into, it was deposited with him for safe keeping, and he gave to each of the. parties a receipt for it. He said it was the only contract made and he gave evidence of its contents and recognised one of his receipts that was produced. He reduced the contract to writing in presence of both parties, and subscribed it himself as a witness.

'The written agreement, deposited in the hands of a third party, who gave each party a copy, is at least prima facie evidence of their bargninand the testimony of this common friend, appears to place it beyond doubt. We think the court below did not err. either in admitting it, or the evidence of the writer, in addition to the agreement, admitting it did not make ful! proof.

The agreement being fully established, ii appears judgment was correct 1} giver! on it.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.