
    KERNAGHAN & CORDILL VS LEO FELLMAN
    NO. 8462
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    OCTOBER 1st, 1923.
   By WILLIAM A. HELL, Judge.

This litigation between two reputable real estate dealers . of New Orleans, ooaoerns the right or not of plaintiff to recover from defendant one-half of the commissions retained by the.Tatter as ■ Lepresentative of the vendor <?f certain real estate purchased hy the ¿eral Band Bank, through plaintiff, as Its agent. The matter is ,.;C a simple one, based solely upon issues of faot, and involves tha, determination of what in truth transpired in a business transaction, between three men of high character in this oommunity. A careful examination of the testimony oonvinoes us that plaintiff did agree,.-.... with defendant on the day of the sale, and even as far back as the month of.June preceding said date, that the eartmilUm of plaintiffs' right to reeaive half of the commissions involved, weald bé, vittr his principal(pontinuously undisclosed}-!!* had not been a party with whom defendant had previously dealt in relation to the property sold.

Disposal of the above issue of fact carries us to the determination of the only other and more important'one, as to whether the purchaser, prior to October 18th, 1919, had dealt with.the .defendant-with a view of purchasing the real estate involved.. The. whole defense to this suit is predicated upon the speo'ial averment ’ that the admitted agreement to divide the commission was coupled with the aforesaid specific condition.. We do not agree,, withthe, contention urged in defendant's brief that the burden in this ease is . upon plaintiff to establish the truth of the .negative ariaihg from the pleadings in this case,. that is',' to show by a preponderance of ;• evidence that the purchaser had dpt.dealt previously with the defendant in regard to the property. The burden is clearly upon the d*- : fondant, who has made the issue*-1o affirmatively establish that-the. condition of hie release from. the. obligation aa^toe^.^'.Mi^had act- - úally resulted,,-.and that he, in-'opnse'qnbneo, has "been -, -the performance pf a oonaatibnál'áj^?*e'ment -to,^'wyv.' ;-0areSal tion of-ta^áecision by this Court in Abington v. Red River Orleans App., 10, does not show its application in any way to the facts in this case. The cited case involved, a suit against the defendant carrier for non-delivery of merchandise, and upon conflicting testimony, in a controversy involving issues of fact only, this Court affirmed, as it should havo done, the findings of the trial Judge. But admitting defendant's contention to be sound, we are of the op- . ijjion that the office records of the defendant offered in his defense were oorrectly excluded, and that the conclusions of the trial Judge were oorreot in finding that the evidence is clearly with plaintiff, establishing that the purchaser never, at any time, had any dealings with the defendant in relation to the property ultimately purchased. The letter from the Federal Land.Bank, addressed to . plaintiff on the day of and‘prior to the aooeptanoe of offer to purchase , is, in our opinion, conclusive of the governing fact in this' case. It reads as follows:

"October 18, 1919.
"Kernaghan & Cordill,
"New Orleans, La.
"Concerning the property.Nos. 821-823-825-827 Union Street, I beg to state’ that the-only negotiations, for the purchase of this property that I have madia has been entirely through your office. I have not. spoken nor dealt with 1/5. Leo Fellman nor anyone in his office for the purchase of this property and neither h?.s Mr. Fellman nor anyone in- his office spoken to me concerning the purchase of this property.
"Yours respeotfully,
"(Signed) Federal Land Bank of N. 0.,
"By T. F. Davis, Pres."

Issues of fact being alone involved, we will not disturb the findings and conclusions of the able trial Judge, who heard and", saw the witnesses.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the , Judgment herein appealed from be and the same hereby as affirmed^ at defendant's costs in both courts..

JUDGMENT AFFIRMED.

OCTOBER 1st, 1923.  