Freiberg v. Rembert

213 So. 2d 104, 1968 La. App. LEXIS 4854
CourtLouisiana Court of Appeal
DecidedJuly 1, 1968
DocketNo. 7431
StatusPublished
Cited by7 cases

This text of 213 So. 2d 104 (Freiberg v. Rembert) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freiberg v. Rembert, 213 So. 2d 104, 1968 La. App. LEXIS 4854 (La. Ct. App. 1968).

Opinion

BAILES, Judge.

Plaintiff brings this suit seeking judgment against the defendant, B. A. Rembert, in the sum of $1,064.13, the balance alleged to be due on defendant’s open account with Trans-Air Corporation (Trans-Air). The amount represented charges incurred by defendant during the period September 29, 1962, to December 1, 1964, for services rendered by Trans-Air for defendant’s airplane which was based and maintained at Trans-Air facilities in Houma, Louisiana. From a judgment in favor of plaintiff in the sum of $999.10, defendant prosecutes this suspensive appeal praying for reversal. We find the plaintiff is entitled to judgment, however, the amount awarded is excessive and must be reduced to the sum of $637.68.

The suit was originally brought in the name of Trans-Air Corporation but by supplemental pleadings John L. Freiberg, assignee of the account, was substituted as party plaintiff. In response to the petition defendant filed an answer of general denial. This answer was amended by stipulation at the trial to include, in the alternative, pleas of payment and prescription. The trial court found that the plaintiff proved the existence of the open account as claimed subject to a credit of $65.03, and that defendant’s plea of prescription was without merit inasmuch as a payment had been made on the account less than three years prior to the institution of the instant suit. Defendant questions both of these determinations by this appeal.

The primary question presented to us is the sufficiency of the proof offered by plaintiff in support of his cause. In order to sustain an action on an open account a plaintiff bears the burden, as he does in any civil matter, of proving his demand by a preponderance of the evidence. Associated Mills Co. v. Smith, 8 La.App. 400; Stille and Yarbough, Ltd. v. Miller, La.App., 150 So. 431. This means simply that every allegation required to establish a legally enforceable open account must be supported by evidence of greater weight than that produced to disprove the account.

The basic allegations of the petition before us are that between September 29, 1962, and December 1, 1964, the Trans-Air rendered services to the defendant on the dates and for the charges shown on an annexed statement of account, the correctness of which was attested by affidavit of the president of the corporation; that defendant had made certain payments as shown on the statement of account but had failed to pay the balance of $1,064.13 due on the account; and finally, that plaintiff, John L. Freiberg, was as-signee of the account.

Plaintiff testified that he was president of Trans-Air, that the defendant, B. A. Rembert, did business on an open account with Trans-Air and that upon dissolution of the corporation this account was distributed to him.

[106]*106At this point, Mrs. Marie Bailey, was called for the plaintiff. She testified that she was employed by Trans-Air as bookkeeper during the period in question and that as part of her duties she posted the debits and credits to the Rembert account. She explained that the debits were posted on the ledger cards on which the account was maintained from the numerical file copies of sales invoices and that credits were entered from cash receipt records. She testified further that each entry on the four ledger cards introduced into evidence were correct reflections of the debits and credits to the account and that the balance due on the account was in the sum of $1,064.13.

The testimony of these two witnesses was sufficient to establish a prima facie case for the plaintiff. The burden then devolved upon the defendant to disprove the existence or correctness of the account, in whole or in part. Frierson Co., Inc. v. Murray, La.App., 190 So. 132; Drouin v. Marks, La.App., 92 So.2d 313; Mochitta v. Lemak, La.App., 165 So.2d 568.

Defendant argues that plaintiff’s prima facie case has been overcome in several ways. First, based on the testimony elicited during the cross examination of Mrs. Bailey, defendant contends that Mrs. Bailey was “unfamiliar with the plaintiff’s accounting procedures, or that the plaintiff had no established accounting procedures,” thereby discrediting either the testimony in support of the account or the account itself. Without recital of this testimony in detail, it is sufficient to state that, though plaintiff’s accounting practices may not have conformed to the highest standard or employed the best methods, the procedures used and Mrs. Bailey’s knowledge thereof were not so discredited as to warrant rejection of either. Any minor inconsistencies in the account or in Mrs. Bailey’s testimony were explained to our satisfaction.

Secondly, defendant called as a witness on cross examination Mr. Harrell Willis, who, during the time in question, was manager of the Trans-Air facilities in Houma. He testified that the defendant based his airplane at the Trans-Air hanger and bought fuel, supplies and maintenance service. He prepared the invoices from which the Rembert account was debited but the account was maintained in New Orleans. Based on a general knowledge of defendant’s purchases and the payments made directly to Mr. Willis, the latter stated that he felt that on occasion defendant was billed for more than he owed. The witness admitted he had no specific knowledge of the exact status of defendant’s account and we feel his testimony on this last point is best summed up by the following exchange:

Q. What was Mr. Rembert’s account situation ?
A. It was, I can’t say specifically, because you are talking about a few years back, which I can’t remember that far back, but it was in dispute you might say.
Q. What does that mean ?
A. Well, in other words, I think he was getting billed for more than what he thought he owed.

This testimony in no way disproves the account. At most it simply substantiates the testimony of plaintiff and Mrs. Bailey that the account was disputed by defendant prior to the institution of this suit.

Third, defendant introduced into evidence eight sets of invoices and testimony showing payment by him of the debts represented thereby. The payment of these invoices was not contested. In the case of two of the sets, however, no credit was posted to defendant’s account. The failure to post one of these credits was explained. Mrs. Bailey testified that the transaction represented by the invoices was treated as a cash sale. Defendant’s account was never debited in the amount of the invoices (the invoice numbers do not appear on the ledger cards) and thus the [107]*107payment could not be credited. The other set of invoices, amounting to $65.03, payment of which was proved and for which no credit appears on the account though the invoices were debited by number, was not explained. A deduction of this amount from the amount claimed by plaintiff was properly made by the trial court. We do not feel that this error in the account is sufficient to discredit the whole.

Under these circumstances we find, as did the trial court, that the evidence preponderates in favor of the plaintiff. Defendant failed to sustain the burden of proving his general denial or to offer proof of sufficient weight to overcome that offered by the plaintiff. Defendant did, however, prove payment of $65.03, which was not credited to his account by plaintiff. We conclude, therefore, that plaintiff has proved that the balance due on defendant’s account is $999.10.

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Bluebook (online)
213 So. 2d 104, 1968 La. App. LEXIS 4854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freiberg-v-rembert-lactapp-1968.