143 So. 1 | La. | 1932
The case is stated generally in the opinion on the motion to dismiss, handed down January 4, 1932, and reported in
Briefly restated, so far as presently pertinent, it is as follows: Plaintiff sued for specific performance of a contract to buy 8,000 acres of land, or in the alternative for forfeiture of the contract and damages for breach thereof. On the trial of the case plaintiff apparently waived his demand for specific performance and confined himself to his demand for forfeiture and for damages. At any rate, the jury before whom the case was tried gave plaintiff a verdict forfeiting the contract and awarding him $3,500 damages, and plaintiff has neither appealed from any part of said judgment nor answered defendant's appeal in any way. On the other hand, defendant appeals, but he does not complain (in brief or in argument) that the judgment below did not order a specific performance. On the contrary, in his answer he averred that the plaintiff was at fault thereby releasing him, and in his turn asked in reconvention that he be allowed damages. Moreover, as set forth in the opinion on motion to dismiss, defendant has acquiesced in that part of the judgment below which declared the contract rescinded, by afterwards mortgaging certain property which he had given in part payment of the purchase price of the land, and to which he had, of course, no claim except by reason of such rescission. So that the only matter now before us is the question: Who was at fault, and what is the amount of the damages due the other party? That is in effect our ruling on the motion to dismiss. *52
These defenses are not established by a preponderance of the evidence. The proof thereof did not satisfy the jury nor the trial judge. "The burden [of proof] rests on an appellant to show, to the satisfaction of this court, that the judgment of which he complains is erroneous." Hanton v. N.O. C. Ry., L.
P. Co.,