
    No. 3080
    Second Circuit
    SANDERS v. MONROE SAND & GRAVEL CO., INC.
    (December 21, 1927. Opinion and Decree.)
    
      (Syllabus by the Court)
    
    1. .Louisiana Digest — Evidence—Par. 56, 58.
    Where a person contracts to do a certain thing and fails to discharge his obligation, to escape liability the burden is on him to allege and prove a legal . excuse fop his failures.
    
      Scovell vs. Gill, 30 La. Ann. 1207.
    King vs. Masons’ F. A. Assn., 104 La. 763, 29 So. 332.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of fact of the trial court will not be disturbed unless manifestly erroneous.
    Southern Hat Co. vs. Schill, 3 La. App. 249.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by J. W. Sanders against Monroe Sand & Gravel Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued defendant to recover $1476.36 with legal interest from judicial demand. Defendant denied liability and filed a reconventional demand which, on motion, was stricken out. After the trial was closed in the District Court defendant asked that the case be reopened and it permitted to introduce further evidence, but its application was refused. There was judgment rejecting plaintiff’s demand and dismissing his suit, and he appealed. Defendant did not appeal but in this court sought to answer the appeal.

OPINION

Plaintiff and defendant entered into a contract whereby the latter turned over to the former a sand and gravel pit with its working equipment and the latter agreed, among other things, to mine and deliver to defendant, which agreed to accept and pay for specified minimum quantities of sand and gravel per month at specified prices during a given period of time, and that 40 cents per cubic yard should be paid either way as liquidated damages for all sand or gravel not delivered or accepted.

Plaintiff failed to deliver 1845.44 cubic yards of washed gravel, whereupon defendant debited his account with the stipulated penalty, or $738.18; but plaintiff, asserting that defendant was responsible for his default, refused to recognize the debit as just, and, in turn, debited defendant’s own account with a like amount as for a failure to accept that much gravel.

Thereupon plaintiff brought this suit.

Defendant did not appeal from the judgment but, in this court, after plaintiff had completed the presentation of his case and defendant had begun the presentation of its own, defendant sought, but was not permitted, to file an answer to the appeal asking that the ruling of the lower court in striking out its reconventional demand and refusing to reopen the case be reversed.

The answer to the appeal came too late.

Code of Practice, Articles 889, 890.

Wilkinson vs. Dubach Mill Co., 2 La. App. 249.

Plaintiff contends that defendant designated the place from which the gravel was to be taken and the manner of taking it and that it specifically instructed him, both verbally and in writing, not to do otherwise; that there was an overburden of dirt and a thinness in the stratum of gravel at the place designated; and also that defendant failed to furnish sufficient cars and orders to take up, and refused to furnish him with the necessary material and equipment to enable him to' mine and load, the minimum quantity of sand and gravel contracted to be delivered; that he called defendant’s attention to these conditions but that defendant nevertheless insisted that he continue to mine at the place and in the manner designated.

This contention is flatly contradicted by the testimony of defendant’s witnesses, and the written communication relied on by plaintiff corroborates them; showing that defendant did not command but only suggested what plaintiff should do.

The evidence shows that there was twice as much working equipment at plaintiff’s disposal as he was using and that the stratum of gravel was from ten to eleven feet thick.

So that plaintiff’s contention "that it was impossible for him, under the prevailing conditions, to mine and deliver the minimum quantity is a mere conclusion and not supported by the evidence.

We think the thickness of the stratum of gravel corroborates the testimony of defendant’s witnesses ■ that it was possible, for plaintiff to comply with his contract.

The burden was on plaintiff to establish by a preponderance of the evidence the facts claimed by him as excusing his default. The district judge who heard the witnesses testify and observed their demeanor on the witness stand evidently reached the conclusion that plaintiff had not discharged this burden. We cannot say that he manifestly erred.

For the reasons assigned, the judgment appealed from is affirmed.  