19 La. 482 | La. | 1841
delivered the opinion of the court.
This action is brought to recover $350, being the balance of anote of a larger amount drawn by defendant'to the order of plaintiff. The defence set up is a plea in compensation of three hundred dollars for three hundred barrels of corn, alleged to have been sold and delivered to the plaintiff, at the-rate of one doljar per barrel. There was a judgment below in favor of the plaintiff, from which the defendant has ap-~ pealed.
The evidence shows that plaintiff’s claim is for the residue, of the price of a sale he had made to defendant of an im-. provement or settlement by him made on public land, together.with some negroes, cattle, farming utensils, &c. There was. at the time a crop of corn standing on the land, of which no. mention is made in the conveyance. Some time after, the plaintiff gathered and removed from the premises all' the corn as his property, without any positive opposition on the part of' defendant, who was then on the plantation. It is the value of' this corn which the defendant offsets against plaintiff’s demand, on thé ground that plaintiff had no right to take it away-as it passed with the sale of the settlement to him.
On the trial, several witnesses were offerred to prove that on various occasions, after the sale, the defendant had acknowledged that the corn belonged to the plaintiff, and had not been sold to him; after this testimony had been taken down, the defendant’s counsel moved the court to strike it out, on the ground that it also appeared from the evidence that no subsequent contract had intervened between these parties;that it went to contradict or explain a written contract, and was inadmissible. The judge, in our opinion, correctly overruled this motion. It camo too late; the party should have stated his objections to the testimony offerred before it was takert
It is therefore ordered that the judgment of the District Court he affirmed with costs.