
    
      PERILLAT vs. PUECHE.
    
    Appeal from the court of the parMi and city ofNew-Orleans.
    Parol evidence may be received to shew that sued o°n Snot pea« to ⅞ to an usurltion.
   Matthews, J.

delivered the opinion of the court. In this casé the plaintiff claims from the defendant a large portion of the rents and profits of a certain house and lot which he sold to the latter under a pact a remere, for the sum of $1200; alleging that the salelwas made in consequence of an usurious contract, bv 1 • J which it-vvas verbally stipulated that the pur-cjmser s^iOUu receive interest at the rate of 18 per cent, per annum on the price. The petition does not contain any precise and formal allegation that the contract was simulated and made in fraud of the laws against usury. It is indeed very vague and indefinite; but from the whole context it may be gathered that the object of the plaintiff js to be relieved against the effects of the sale, as having been made with a direct intention to cover usury. The court below refused to admit the oral testimony offered to prove the real contract between the parties as being contrary to that contained in the act of sale, and gave judgment for the defendant, from which the plaintiff appealed.,

, The decision of the cause in its present state depends on the bill of exceptions which was taken to the opinion of the judge a quo, by which he rejected the testimony offered.

The general principle of law that oral testimony cannot be received to vary or contradict written agreements or contracts, has been long established, and has received the sanction of our code to the fill lest extent. Louisiana Code. art. 2256. This rule of evidence is however not so stern or unbending as to admit ' ° ^ of no exceptions. When* a written act is attacked on the ground of fraud, or simulation, oral testimony is admissible to establish the existence of those facts which when legally es* tablished operate á defeasance of such act,— This exception .to the general rule is clearly recognized in the decision of the ease of Crozel's heirs vs. Gaudet. See 6 Martin, 524.

Although in the present case no direct or pointed charge of fraud or simulation is made against the vente a rentere as a cloak 10 the usurious contract which really took place between the parties, yet that such attack was intended, may be well ascertained from the reiterated allegations in the petition of usury in the transaction.

It is true that a bona fide sale which grants ■io the vendor the right of redemption, although the property may have been sold for a price less than its value, authorises the vendée to receive the fruits as his own during the exis-tenceofthe contract. But if the seller is in the habit of paying usurious interest, or other circumstances attend the transaction, calculated to raise a suspicion against its genuineness, it may be lawfully assailed ou account of usury. Curia Phil., verbo usura, no 26,

Young for the plaintiff, DerMgny for the defendant,

From this view of the case we are brought to the conclusion that the judge below erred in rejecting the oral testimony offered on the part of the plaintiff to shew that the act of sale relied on by the defendant is only a pretext to cover an usurious contract.

It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be avoided, reversed and annulled; and it is further ordered that the cause be remanded to be tried de novo, with instructions to the judge a quo to admit the testimony of witnesses to shew that the pretended vente aremereis fictitious and simulated, and was entered into in fraud of the laws against usury; and that the pellee pay the costs of this appeal.  