Gaudé v. Gaudé

28 La. Ann. 181 | La. | 1876

Taliaferro, J.

The defendant is sued upon an account for goods’, wares, and merchandise furnished, money advanced, and taxes, physician’s bill, and money paid to others at the request of defendant, aggregating the sum of $1023 74, for which plaintiff prays judgment with legal interest, as allowed by law, on each item oí indebtedness, with costs, etc. •The defendant pleaded the general issue, and set up in reconvention a demand against the plaintiff of fifty-nine hundred dollars, with interest. This demand he predicates upon the, declaration that in April, 1866, he sold to his son (who is the plaintiff in this suit) his plantation called “ Morning Star,” for the price of sixteen thousand dollars, represented by eight notes of two thousand dollars each. Ho avers that his son, without defendant’s knowledge or consent, took possession of and still retains two of these notes. He further avers that he paid for plaintiff a debt of nineteen hundred dollars, which the latter owed to Oneziphore Toups, administrator of the succession of Marie L. Toups; the two notes of two thousand dollars each, taken, as he alleges, by plaintiff, and the nineteen-hundred-dollar debt to Toups, administrator, paid for plaintiff, making the amount of the reeonventional demand. Pending the trial, the defendant filed a peremptory exception in which he pleads the prescription of one, two, and three years, and that by certain notarial acts therein specified, the plaintiff’s claim, and all other possible differences between the parties, were canceled and extinguished.

The xfiaintiff had judgment for $1011 14, with interest, and defendant appealed.

We find no force in the defense. The plea of prescription of one, two, and three years is not applicable to the account sued upon, which is one for reimbursement for outlays, advances, etc., made for the use and benefit of the defendant by the plaintiff as negoüorum gestor, and which is prescribed only by the term of ton years. 12 Rob. 148; 2 An. 779; 10 An. 395.

In regard to the two notes of two thousand dollars each which the defendant alleges in his petition, his son, the plaintiff, took possession of without his knowledge or consent, the defendant, when upon the stand, admitted that the two mortgage notes were given to his son by the consent of the defendant.

In his peremptory exception the defendant alleges that by the sale he made to his son of the Morning Star plantation and the sale to Myrtle Gaudé of the Adam plantation it was understood and agreed upon by the parties that mutual receipts should be exchanged between them; that the sales mentioned in the answer were a final settlement of all demands of one against the othér. The defendant specially alleges that by these sales a full and entire settlement of all business affairs between himself and the plaintiff was effected. But these acts of themselves show nothing of the sort, and upon the trial of the case in the court below the defendant introduced a witness to prove that the only-settlement ever effected by him was the one evidenced by the acts of sale of sixteenth August, 1875, by Charles E. Gaudé to Erangois Gaude. To the introduction oí this evidence, the plaintiff’s counsel objected on the ground that the acts themselves alleged upon in defendant's peremptory exception must interpret themselves, and that parol evidence was inadmissible to establish a general settlement oí the affairs oí the parties different from that alleged in defendant’s peremptory exception. The objection was sustained by the court, and defendant reserved a bill oí exceptions.

We think tho evidence was properly rejected. 0.0. article 2276; 16 An. 305; 18 An. 577. The defendant, we think, has failed to make out a. valid defense, and that the judgment was properly rendered in favor of the plaintiff.

It is therefore ordered that the judgment appealed from be affirmed with costs.