
    
      DOW vs. SHIMMIN.
      
    
    Appeal from' the court: of the parish and city of New-Qrleans. ,.
    It a written synallagmatic contract be deposited in the hands of a thirc party, who gives to each of the contracting parties a receipt for it, it will be read in evidence, at least as ahe-ginning of proof.
    
      
       This:'0pi^isaw%sdefeer|^4%Ma^but'Was-.BOi printed with th** Cases of Üiat ter^a a^q|,ioi|..b|Ljisi^;heen n%atfe fot a rehearing
    
   Martin, J.

delivered the opinion of the court. This is an action. for work and labor done by the plaintiff!, for the defendant, in filling up the latter’s lots, with dirt, on a quantum meruit, S-lliO, are claimed.

Tiie answer admits the work and labor, but avers that it was performed under a special written contrae!, in which the compensation of the 'plaintiff was fixed at $195 50, The defendant avers the writing has come into the hands of the plaintiff, and he prays, that on his failing to produce it, testimony of its contents may be received.

The plaintiff had judgment for $195 50, and appealed.

.The record shews that at the trial, the defendant offered in evidence the written contract, which it appeared had been deposited with J. O’Brien. The plaintiff objected to its being read, as it contained sygnallamatie obligations, and was not made double. The plaintiff’s objection was overrulled, and the plaintiff’s counsel took a. bill of exceptions.

The defendant offered O’Bryen, the writer and depository of the contract, to prove the execution and deposit of it. This was objected to. The plaintiff took a bill of exceptions, on the objection being overruled.

O’Brien deposed, when the written contract, was entered into, it was deposited with him for safe keeping, and he gave to each of the. parties a receipt for it. He said it was the only contract made and he gave evidence of its contents and recognised one of his receipts that was produced. He reduced the contract to writing in presence of both parties, and subscribed it himself as a witness.

'The written agreement, deposited in the hands of a third party, who gave each party a copy, is at least prima facie evidence of their bargninand the testimony of this common friend, appears to place it beyond doubt. We think the court below did not err. either in admitting it, or the evidence of the writer, in addition to the agreement, admitting it did not make ful! proof.

The agreement being fully established, ii appears judgment was correct 1} giver! on it.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.

The court, having at this term, heard counsel, on a rehearing,

Porter, J.

delivered the opinion of the court. An application has been made lor a re-hearing in this case, and the counsel opposed to it has been heard. The only question is that of costs, the payment of which to the plaintiff depends on his having proved an amicable demand, the evidence establishes it was made, and the parish court erred in not giving judgment jor them against the defendant.

M'Caleb for the plaintiifj Preston for the defendant,

It is therefore ordered, adjudged arid de. creed, that the judgment of the parish conr< |je annulled, avoided and reversed, and that the plaintiiT do recover of ti» defendant ihc sum of $195 50, with costs in both courts.  