Frank De Latour, Inc. v. Boscareno

126 So. 743, 12 La. App. 596, 1930 La. App. LEXIS 58

• Court: Louisiana Court of Appeal
• Decided: March 10, 1930
• Docket: No. 13,224
• Status: Published

Opinion

HIGGINS, J.

This is a suit on an open account for goods and merchandise alleged to have been sold and delivered by plaintiff to the defendant. Defendant filed a general denial.

There was judgment in favor of defendant dismissing the suit, and plaintiff has appealed.

The record' shows that when the defendant was placed on the stand for the purpose of cross-examination, he admitted the amount sued for was correct; that the merchandise was sold azid delivered to him; and that the price was fair and reasonable. When defendant sought to introduce evidence tending to show payment of.the account, plaintiff objected on the ground that the answer was a general denial and a plea of payment, being a special defense, had to be specially pleaded in order that evidence could be introduced on such an issue. The trial court overruled the objection and permitted the evidence to be introduced. We believe that this was error. A plea of payment is a special defense and must be specially pleaded in order that evideuce tending to prove payment may be introduced. Times-Picayune Publishing Company vs. Jacobs, 13 La. App. 1, 126 So. 741, this day decided, and Weil v. Weil, 13 La. App. 8, 126 So. 742, this day decided.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of Frank De Latour, Inc., plaintiff, and against Anthony Boscareno, defendant, in the full sum of $153.63, together with • legal interest from judicial demand until paid. Defendant and appellee to pay the costs of both courts.