Shultz v. Houghton

36 La. Ann. 407 | La. | 1884

The opinion of the Court was delivered by

Fenner, J.

Defendant is sued upon an account due in 1875.

His defense is a general denial and proscription of three and five years.

Evidence was offered to establish an acknowledgment of the account, for the double purpose of showing that it became an account stated, prescriptible only by ten years, and also an interruption of prescription.

For the first purpose the evidence is manifestly insufficient, since it appears from plaintiff’s own testimony that defendant never acknowledged the correctness of the account, but said he would have to look over his own papers.

It is claimed, however, that defendant made a general acknowledgment of indebtedness, which is sufficient to interrupt prescription.

The evidence on this point is of the vaguest and most general character, not pretending to give the language, or definite purport of the language used.

It is very clear the defendant never made an “ acknowledgment of the right” claimed by tho creditors, which was the right to claim the amount shown due by the account.

Non constat that after examining his papers he might not have disputed any indebtedness whatever, the account being one of large debits and credits.

The case is not nearly so strong as that presented in Lackey vs. Macmurdo, where the. Court said: “In estimating the effect to he given to the conversation above mentioned, it is proper to consider what is the effect of an interruption. The effect would be to destroy the conveyances which otherwise would have resulted from the lapse of time * * * and to give a new date as the starting point for the cause of prescription. * * * As, therefore, the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, that proof of an assent to such a change on the part of the debtor should be clear and unequivocal.” Lackey vs. Macmurdo, 9 A. 17.

So, in another case, it was held that an acknowledgment was insufficient, because “ho did not acknowledge his indebtedness to the appellant for the mioivnt of her claims.” Succession of Jewell, 11 A. 83; see, also, Ross vs. Adams, 23 A. 621; Marquez vs. Bloom, 22 A. 328.

It is perfectly clear that defendant in this case has never acknowledged “the right of the creditor,” i. e., the debt claimed by the creditor; but, on the contrary, declined to acknowledge it and loft it a matter of free and open discussion.

It is to be borne in .mind that the defendant contradicts most positively the evidence for plaintiff.

Tiie judge 'a quo maintained the plea of prescription and we see no reason to disturb his judgment.

Judgment affirmed.