White v. Allen

3 Pelt. 45, 1919 La. App. LEXIS 81

• Court: Louisiana Court of Appeal
• Decided: November 6, 1919
• Docket: No. 7623
• Status: Published

Opinion

CHARLES F. CLAI30H1ÍE, JUDGE.

This suit was filed October 31st, 1916. The plain)tiff alleged that on July 9th, 1914 the late Charles R. Kennedy -employed him*in writing .to sell a certain property,and 9 1 / agreed to pay him a commission of three per cent on the price of sale if sold before July loth, 1914; that in pursuance of said employment petitioner procured Krs. Pierre Bagur as a purchaser for $7000 before said date, and the sale to her was consummated on August 12th, 1914 for said price; that subsequent ly the said Kennedy died leaving as universal legatee the defend ant herein, John-E. Allen, who has been recognized and put in possession as such of all the property left by said Kennedy; that neither the said Kennedy not the said Allen has paid the claim notwithstanding amicable demand.

The truth of the allegations was attested by the plaintiff.

The defendant admitted that Kennedy was dead and that he was his universal legatee; but denied all the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed. •

The document sued on is in the following words;

"New Orleans, July 9th, 1914.

Hr. 3?. White

Dear Sir,

X hereby authorize you exclusively to sell my real estate, described as follows: No. 1202 >i, Dor¿snoi-a Strc-t - description: one story cottage corner Hos ;ital St. If the aoove property is sold by ..Ü or any of :-t person during t?:e time it is in your íu':Jm1s Tuesday July 13, 1914, from datft \ «reof, I bind nj’-ftM'i.f to pay you 3 per cant commission on account of sale.

Yours! very truly,

Signed " Cha». R. Kennedy.

Albert Bagur, a brother-in-law of I£re. Pierre Bagur¿ testified that he acted for her in the purchase of the property; that his negotiations were with the plaintiff Fernand White alone, who sold the property to hita; the agreement of sale was made ujson July 11th, 1914 and on that day ho ¿av* him a check for $700 representing a ben per cent deposit. Fernand White did not testify; on the day of the trial he v/as dead.

The defendant offered no evidence. His argument is that plaintiff’s delay in filing this suit and his inaction until after the death of -Kennedy made his claim suspicious and required that it be established with more than reasonable certainty. Süch is the jurisprudence fixed by a long line of de-j0 cisiona./ 5 A., 140; 7 A., 555; 10 A., 279; 14 A.. 317, Succession - Rice; 33 1., 1005; 39 A., 684; 40 A., 560; (570); 41 A., 248, ^ 489, 657^.(6621; 50 A., 1220 (1226); 52 A., 1766; Hanning's r Unr. c&ses 9SÍ 121**3391 114 La., 60S; ‘30 Cyc 1273**/ / ? &?/ — #<*- z-77— 3S~X

/ This jurisprudence has been cry^tailizea into law by Act Ho. 207 of 1906 p. 361, which reads as follows:

"That from and after the promulgation of this Act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except if consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknov/ledgment or promise to pay signed by the debtor; or unless an action upon the asserted inrteotednsj* shall have born brought within a delay of twelve aonths after the decease of the deotor".

e of tne opinion that the plaintiff has satisfied the exigencies of both the jurisrjrudence and the statute. The contract of employment and the coaoensation stipulated are in writing f,:/J the genuineness of t'-o docuient and of t¡ e signature are ad-.itted; r-:,A i*c is ¿stabli* with absolute certainty by lh-j testimony of a ^rediole v/itness that tne work contemplated oy the contract was performed by th* plaintiff. Hi» delay in urging tha claim may he explained hy the fact that Kennedy was detained hy sickness at his home when the act of sale was passed, and perhaps his illness continued up to the time of his death. Under these circumstances the plaintiff might well have hesitated to prBss hilt claim.

The defendant argues that hy reason of 'tnis delay plaintiff must prove that his claim was not paid. Such is not the law. Article 2232 (2229) of the Civil Code reads as follows:

"He who claims the execution of an obligation /t*á>- ¿ J> mil. /f^)must prove it. On the other hand, he who contends that he is exonerated, must prove the payment or / / ^ fact which has produced the extinction of the ob^Jgation”

time and inaction affect only tne question la]>ée of time and inaction affect only tne questio of evidence. The older the claim, the greater the presumption grows that it has been paid, and the less evidence it requires to prove the payment. 5 A., 140; 2 La., 480; 3 La., 169.

But in this case there is no plea of payment, nor commencement of proof of that fact, and as we have seen the burden of proof is upon the defendant to establish it.

Judgment affirmed.

November 6th,1919.