5 La. App. 233 | La. Ct. App. | 1926
This is a suit to recover a” balance on an open account. The defense is a general denial. There was judgment for plaintiff and defendant appealed. Judgment amended and as amended affirmed.
OPINION.
Plaintiff brought this suit for $707.66, alleged to be the balance due it by the defendant on an open account. The defendant answer, pleading the general issue. Plaintiff attached to and made a part of its petition a sworn itemized statement of its account against defendant, showing all debits and credits, with the balance brought down. It also attached invoices of the various sales. Plaintiff offered said itemized account, sworn to, in evidence and made proof of its correctness. Defendant, as stated, filed answer denying generally and specially all the allegations of plaintiff’s petition, but interposed no special plea. Defendant, on trial, attempted to prove that the- account had been paid in full. Counsel for plaintiff objected to any evidence going to show payment, for the reason that defendant had not interposed that special plea in answer. The court, at first, overruled the objection and admitted the testimony subject to the objection. It later sustained the objection.
Testimony as to the payment of the account was inadmissible. A general denial puts at issue only such facts as are necessary for plaintiff’s recovery.
Heirs of Wood vs. Nicholls, 33 La. Ann. 745.
Lallande vs. Ingram, 19 La. 366.
Petit vs. Laville, 5 Rob. 117.
Ducros vs. Jacobs, 10 Rob. 453.
Ballew vs. Robb, 13 La. Ann. 375.
Proof of payment should not be admitted without a plea to that effect.
D’Arensbourg vs. Chauvin, 6 La. Ann. 778.
McKown vs. Nathes, 19 La. 543.
Code of Practice, Article 327.
However, even if we consider the evidence of payment found in the record, we must hold that defendant failed to make satisfactory proof that the balance of the account has been paid.
Owing to what appears to be a clerical error, judgment was awarded for $767.66 when it should have been for $707.66.
For ' the reasons assigned, it is ordered that the judgment appealed from be amended accordingly and as amended that it be affirmed with costs.
