Hynson v. Texada

70 La. Ann. 470

• Court: Supreme Court of Louisiana
• Decided: August 15, 1867
• Docket: No. 88
• Status: Published

Opinion

Labadve, J.

The plaintiff, as transferree of Rhorer & Zunts, claims of the defendant the sum of $1,258 12, with interest. The defendant pleaded the general issue and prescription of three years. This suit is brought on an open account for plantation supplies, moneys, etc., commencing on the 27th February, 1861, and ending 24th February, 1862.

Judgment was rendered in favor of plaintiff, and the defendant appealed.

The plaintiff propounded the following interrogatories to the defendant:

. 1. Did you order and receive any of the articles mentioned in the account upon which suit is brought ?

2. Examine the account herewith filed, and state whether the items are correctly charged, and if not, which are correct and which are incorrect.

1st Int. Answer.—During the year 1861, I remember to have had no dealings with Rhorer & Zunts that were not settled by draft or note, and feel certain, from examination of memorandum in my possession, that I owe them nothing on an open account. I did order sujjplies for my plantation during that year, but they failed to furnish them; I was compelled to obtain them elsewhere, consequently I do not think that I received any of the articles charged in the account.

2d Int. Answer.—My first answer is responsive to this question; I am satisfied that none of the items are correctly charged as being due ; one item of insurance on sugar-house, and another, on gin-house, are certainly incorrect; and so I regard each and every one.”

It is clear that these answers negative the indebtedness of the defendant upon the account sued on.

The plaintiff has introduced letters of the defendant, to show that he had requested Rhorer & Zunts to send him articles charged in the account; such letters, although asking for the articles, do not prove that the demand was complied with, and do not contradict the answers of the defendant. . This is all the testimony in support of the account. The answers of the defendant cannot be destroyed, except by the oath of two witnesses, or of one single witness, corroborated by strong circumstantial evidence, or by written proof. C. P. Art. 354. Besides, we have been unable to find in the record a transfer by Bhorer & Zunts to the plaintiff.

We are of opinion that plaintiff has failed to make out his case.

The defendant has not called our attention to the plea of prescription; we have, therefore, not thought necessary to pass upon it.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided; it is further ordered and decreed, that plaintiff’s demand be dismissed as in a case of nonsuit, and that he pay costs in both courts.