142 So. 878 | La. Ct. App. | 1932
Plaintiff sues for a balance of $299 claimed to be due for furniture sold and delivered to defendant. A writ of sequestration was obtained and the furniture seized by the constable.
Defendant has left the state of Louisiana and is now sojourning in Atlanta, Ga.; but, on his behalf, his wife resists payment, claiming that the account is incorrect.
She testified that she had made certain payments which should have been credited on the furniture account, but which, through error, was entered on the books of plaintiff as payments on jewelry previously purchased.
She admitted that there was a balance due, but claimed that if the proper credit had been given the account would have been substantially reduced. This defense is in the nature of a plea of payment and a plea of payment should be specially made. Since there was no such plea, her evidence in support thereof should have been excluded, since there was timely objection thereto. However, if the plea had been specially made, the burden of proving payment would have been on defendant, and the only evidence given in support of the defense is that of defendant's wife, and it is most indefinite and uncertain.
The trial judge disregarded it, and we feel that he was correct.
The judgment appealed from is affirmed.
Affirmed.
