Chinn v. Chinn

22 La. Ann. 599 | La. | 1870

Wyly, J.

The defendant has appealed from a judgment against him for the amount claimed by the plaintiff on an account rendered to the latter by the former. The defense is usury' and payment.

It appears that the defendant was the agent for the plaintiff in collecting from his father’s estate a certain sum of money, and also that he acted as agent in investing it at interest. Subsequent to the rendition of tbe account sued on, to wit: on the sixteenth of March, 1861, the defendant wrote to the plaintiff, acknowledging that he owed him the cash balance staled in the account, and saying: “ As the affair has never been of any value to me, since this cash balance has only fallen into' my hands through an affair oí Mr. McIIatton’s, I do not wish to owe money to any one.”

Whether the cash balance sought to be recovered in this suit be composed oí usurious interest o not, the defendant can not complain. It fell into his hands as agent for the plaintiff, and he must account for it to his principal, even though he received it unduly.

As to the plea of payment, we think, with the district judge, that it has not been established by the evidence. We regard the entry in the note of evidence, stating that part of McHatton’s testimony was rejected, as the order of the court, the note of evidence being a minute of the court kept by the clerk during the introduction of the testimony at the triai.

We deem it unnecessary to examine the argument of the counsel of the appellant, in reference to the authority oí clerks to certify.

Judgment affirmed.