Etie v. Sparks

| La. | Sep 15, 1832

Porter, J.,

delivered the opinion of the court.

This action was instituted on a contract, by which the plaintiff sold to the defendant a quantity of sugar cane for plants, and the right to cultivate the ensuing year, some stubble cane belonging to.the petitioners; and by which there were hired to the defendant ten slaves, and some horses and work oxen. The matter principally contested in the court below, was the performance by the plaintiff of the obligations assumed by him in the agreement above referred to. The jury found a verdict in favor of the plaintiff for six hundred and ninety dollars and five cents. We have examined the evidence, and are of opinion they did not err. The defendant moved for a new trial, which being refused, he appealed.

In commutative oi- reciprocal contracts, where the agreement requires the performance of several acts, a partial performance authorizes a recovery to the amount which the other party is benefitted, but subject to a deduction of such damages as may be sustained by the failure to discharge the other parts of the agreement. Where pa-!'ole. evidence to prove a dediscloses the having been made,lhewntten notice duced^as ^tiie best evidence, absence ac-

In this court, he has raised several questions of law.

1. He contends the plaintiff cannot recover, because he did not perform all the obligations assumed by him in the contract.

Where the agreement requires the performance of several acts, a partial performance authorizes a recovery to the amount to which the other party to the contract is benefitted; subject, however, to deduction of such damages, as may be sustained by the failure to discharge the other parts of the agreement. Loreau vs. Declouett, 3 La. Rep. 1.

On the trial, the defendant offered a witness to prove he made a demand on the plaintiff, to comply with the whole of his contract. The witness, on being interrogated, declared that he had made such a demand in writing. Objection was made to any parole evidence of the demand, it not being the best evidence of which the case was susceptible. The court sustained the objection. Whereupon, the defendant, by his counsel, applied to the court for an order on the plaintiff, to produce the document. This was repelled, on the ground the application came too late, the cause being on trial. The court refused to make the order, and the defendant excepted to this decision, as well as that which rejected the parole evidence.

The court certainly did not err in the first opinion. The defendant had no right to introduce parole evidence, unless he had showed he had used all means in his power to procure the better proof. But whether the court decided correct'ly in refusing the order, may be well doubted under the-—"¿^articles of the Code of Practice, The case, however. does not require a. positive' expression of our opinion, as the defendant was subsequently permitted to' prove the demand another witness. J

Application was made for a new trial, on the ground of the misconduct of one of the jury. Ne evidence of the fact appears 0n record, and we cannot notice it.

The appellee has prayed the court to give interest on the verdict of the jury, and damages for a frivolous appeal; neither of which demands are, in our opinion, justified by the facts or the law of the case.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.