80 So. 727 | La. | 1918
Lead Opinion
Plaintiff prays for judgment against defendant in the sum of $3,196.30, with 8 per cent, interest from February 17,
“2. That under an agreement made by the said defendant, petitioner placed in the hands of defendant, two thousand five hundred dollars in money on the 19th day of February, 1906, and another two thousand five hundred dollars on the 5th day of March, 1906, to be invested by the defendant as he might deem proper; the said defendant to pay to your petitioner eight' per cent, per annum interest on the said amount, so long as same was not returned to your petitioner.”
Plaintiff then alleges various credits, charges for interest, and an additional charge for proceeds of a farm sold for his account by defendant, and, after adding and deducting these various items, concludes by praying for judgment in an amount which he represents as the balance due him on February 17, 1915.
The answer admits the two deposits of $2,500 each, which were to be invested by defendant for account of plaintiff, but denies any agreement on the part of defendant to pay any interest on said deposits except such interest as might be earned by investments on loans made to other persons. Defendant further alleges a full and complete accounting to plaintiff, denies owing the latter anything, and claims in reconvention the sum of $375.77 for drug bills and money paid to satisfy a judgment due by plaintiff to the Elgin Banking Company.
The district court rendered judgment against plaintiff and in favor of defendant, allowing the latter’s reconventional demand, and plaintiff appeals.
A much contested charge in plaintiff’s account is one for $1,800, alleged to be the proceeds of a farm bought by defendant in his own name for $1,705, and subsequently sold by him to a Mr. Gonsoulin. The evidence shows that defendant bought the property as alleged and sold it for $1,800, of which amount Mr. Gonsoulin, the purchaser, paid $800 cash and gave his note for $1,000 in representation of the balance of the purchase price. The title to the property remained in the name of defendant for about two years, during which time plaintiff was continuously in possession, and the sale to Gonsoulin, though signed by defendant, was negotiated by plaintiff himself, and it appears that plaintiff received the cash payment of $800 by check dated March 24, 1908.
Judgment affirmed.
Rehearing
On Rehearing.
Appellant complains that we have erred in approving the charge of $800 against him on the account rendered, and in' not requiring the defendant' to account for the mortgage note of $1,000, received in part payment of the price for which he sold the farm that had been paid for with plaintiff’s funds. In other words, appellant contends that, if he is to be charged with the $800 that he received on the 24th of February, 1908, he should have credit for the $1,-800, for which defendant sold the farm that he had bought with plaintiff’s money, and for which defendant has charged the purchase price on the account rendered by defendant.
The account rendered by defendant on the 11th of March, 1911, when he sent plaintiff á cheek for $1,078 to balance the account, was as follows, viz.:
H. C. Rose, in account with Dr. Guy A. Shaw.
Dr. Cr.
Deposit .............................. $5,000 00
Noy. 28, 1906. Interest collected.. .266 65
...... To cost of farm... $1,705 00
Feb. 24, 1908. Interest collected.. 351 00
“ “ “ To check........... 800 00
Aug. 4, 1908. Interest collected.. 103 35
“ “ “ To check........... 1,200 00
Apl. 5, 1909. Interest collected.. 66 65
“ “ “ To checks.......... 350 00
May 9, 1910. To amount paid for insurance, etc.... 654 66
Mar. 11, 1911. To check to balance ...."......... 1,077 99
$5,787 65 $5,787 65
The defendant, in his testimony, denied that he had received from Gonsoulin either the cash payment or the mortgage note. He could not remember that the plaintiff received either the cash payment or the mortgage note from Gonsoulin. The plaintiff testified positively that he was not present when the sale was made, and there is no contradiction
We are constrained to conclude, from the evidence before us, that the defendant’s memory was at fault, and that he received the $800 paid by Gonsoulin.
“Beceived on within note five hundred and seventy-three & 35/100 dollars. Jan. 14, 1909.”
The plaintiff testified that he was familiar with the defendant’s handwriting, and that the receipt indorsed on the note was-¡in defendant’s handwriting. The defendant would neither admit nor deny that the handwriting was his. He gave no further explanation of the receipt, after the plaintiff had testified to the handwriting, except to say:
“It has not been shown that it is my handwriting on that note.”
We think that the defendant, being a man of prominence, might readily have found proof to contradict the plaintiff, if the latter was mistaken about the handwriting on the note. And there are other circumstances corroborating the plaintiff’s statement that he did not get possession of the note until the $573.35 had been paid on it. An ex-employé of a bank, as a witness for defendant, testified that the plaintiff borrowed $100 from the bank for one month, on the 8th of May, 1909, on Gonsoulin’s indorsement, and that the loan was paid on the 1st of June, that year; that plaintiff borrowed $250 on the 1st of July, 1909, on Gonsoulin’s indorsement, and paid the loan on the 17th of August, that year, with part of the proceeds of a draft given by Gonsoulin to plaintiff for $503.33, dated the 16th of August, 1909. Plaintiff testified- — and it is not seriously disputed — that the draft was for the balance due on the mortgage note, which bears the indorsement written and signed,, by plaintiff, “Beceived in full, this Aug. 16/09.” There is no reason why the plaintiff should have collected only $503.33 from Gonsoulin on the 16th of August, 1909, except that the balance
The defendant introduced in evidence a draft for $150 given by Gonsoulin to plaintiff on the 9th of January, 1909. We have no satisfactory explanation of that transaction ; but, as Gonsoulin testified that he thought the draft represented a partial payment on the mortgage note, and as there is no direct contradiction of the statement, we have concluded — although we have some doubt about it — that the defendant should have credit for the amount of the draft.
Our conclusion is that the plaintiff is entitled to credit for the $800 paid by Gonsoulin when the latter bought plaintiff’s property from defendant, and $573.35 paid on the mortgage note, less $150.00; that is, $1,-223.35 in all. Deducting the $375.77 claimed in the defendant’s reconventional demand, leaves the plaintiff entitled to judgment for $847.58, with legal interest from judicial demand.
As the case presents only questions of fact and figures, as to which an error may readily be pointed out if we are wrong in our judgment, we have concluded to reserve to defendant the right to make application for a second rehearing.
The judgment appealed from is annulled, and it is now ordered, adjudged, and decreed that the plaintiff, H. Crawford Rose, recover of and from the defendant, Dr. Guy A. Shaw, $847.58, with interest at 5 per cent, per annum from judicial demand, that is, from the Sth of March, 1915, and all costs of this suit. The right is reserved to defendant to make application, within the legal delay, for a second rehearing.