Gasquet v. Kokernot

5 La. 266

• Court: Supreme Court of Louisiana
• Decided: March 15, 1833
• Status: Published

Opinion

The facts are stated in the opinion of the court, delivered by

Mathews, J.

This suit was commenced against D. L. Kokernot, as purchaser of certain merchandise from the plaintiffs; also against widow Kokernot & Son, united in a commercial firm; and likewise against the widow, in her individual capacity. The petition charges the two last parties as sureties, or guarantors of the purchaser of the goods.

The whole case was submitted to a jury in the court below? who found a general verdict for the plaintiffs, and judgment being thereon rendered for the sum of one thousand four hundred and ten dollars and thirty-one cents, the defendant widow Kokernot, appealed.

The testimony of the case fully establishes the fact of the purchase and delivery of the merchandise to the defendant, D. L. Kokernot. The record affords no evidence of any assumpsit of guaranty or suretyship on the part of Kokernot & Son, as a commercial company; and the assumpsit alleged against Mrs. Kokernot, is positively proven by one witness, and proof of corroborating circumstances, which were probably sufficient to produce conviction on the minds of the jurU that this defendant did assume the obligation to pay to the plaintiffs as alledged in this petition.

in aii cases of con-above f^Tun-dred dollars, the testimony of a sin-glo witness, without proof of corroborating cir* «üffideSt'BS’is in" alleged promiscuo othérJetue defeni that tehis, m°e-the period ofbthe refused to pay the other’s debts due to other per-sous, although the fin? out ws case to^provo^thTre-verse'

^he exception in favor of contracts between merchants, or in relation to mercantile dealings, made in the old Civil Code, by which such contracts above five hundred dollars, might be proven by a single creditable witness, not having been introduced in the Louisiana Code, is verbally repealed: and . . . , . . now in cases of contracts or promises, having for their obiect " more than five hundred dollars, the testimony of one witness not suffice to establish such contracts without proof of corroborating circumstances. Louisiana Code, art. 2257. In the present instance, proof of this kind was adduced, and as the jury were the proper judges of the weight of the testimony, perhaps their verdict and the judgment thereon rendered ought not to be disturbed, were it not for certain bills of exceptions found on the record, by which it appears that evidence offered on the part of the appellant to rebut any presumptions arising from the proof of these circumstances, was rejected.

The testimony offered and rejected appears to have been intended to show that the defendant, previously and about the period at which she is alleged to have promised to pay for the purchase, had refused absolutely to become surety for him on other occasions, ana to other persons. If the plam-x r tififs had offered testimony to prove the converse of this pro- that she had been in the constant habit of becoming surety for the individual who bought goods from them, in his contracts with other persons, no doubt could be entertained of the admissibility of evidence to this effect as showing circumstances corroborative of the testimony of the single witness.

Proof arising from circumstantial evidence is essentially presumptive, and may properly be rebutted by the evidence of contradictory circumstances tending to oppose its truth.

We are of opinion that the judge a quo erred in refusing to admit testimony to show that the appellant had refused on several-occasions to become security for the engagements of the purchaser of the goods in the present instance to other persons, or that she was in the habit of refusing to bind herself= for him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered that this cause'be remanded to said court to be tried de novo, with instructions to the judge to admit the testimony as offered by the appellant, or similar testimony, if offered; the plaintiffs and appellees to pay the cost .of this appeal.