
    No. 2793
    Second Circuit
    KALISKI MUSIC CO., LTD., v. WALL
    (January 28, 1927. Opinion and Decree.)
    
      (Syllabus by the Court)
    
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on a question of fact will be sustained by the Court of Appeal unless manifestly erroneous.
    Humble Oil & Refg. Co. vs. Michiels, 2 La. App. 337.
    2. Louisiana Digest — Evidence—Par. 52, 53; Bills and Notes — Par. 216, 231.
    The signer of promissory notes who seeks to escape liability bn the ground that the payee agreed that he would not file suit on the notes carries the burden of proving his contention; and where signer of the notes swears positively that there was such an agreement and the payee swears positively that there was not, the burden resting on the plaintiff has not been discharged.
    
      DeGruy vs. Cir.e & Delhomer, 4 La. App. 558.
    3. Louisiana! Digest — Bills and Notes — Par. 231; Evidence — Par. 340.
    Where the signer of promissory notes swears that the payee agreed not to sue on the notes and the payee swears that he made no such agreement, the unconditional promise of the signer contained in the notes corroborates the evidence of the payee.
    . Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Kaliski Music Company, Ltd., against S. E. Wall.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    M. C. Redmond, of Monroe, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit on twenty-eight promissory notes signed by defendant. Defendant admits signing the notes ibut alleges that plaintiff agreed not to file suit on them.

Defendant denied that he made such an agreement.

On these issues the case was tried and there was judgment for plaintiff and defendant appealed.

OPINION

The question presented for decision is one of fact as to whether or not plaintiff agreed not to file suit on the notes.

Defendant swears positively that plaintiff agreed not to file suit on the notes, and plaintiff swears positively that he made no such agreement.

The burden of proof rested on the plaintiff to establish his special defense; and as his testimony is offset by that of the plaintiff he has failed to discharge the burden resting on him.

The trial judge who heard the witnesses testify and observed their demeanor on the witness stand gave effect to the testimony of the plaintiff. We are convinced that his judgment is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.  