
    No. 11,793
    Orleans
    JOHNSON v. FOSTER
    (April 29, 1929. Opinion and Decree.)
    
      Warren M. Simon, of New Orleans, attorney for plaintiff, appellee.
    Hopkins and Talbot, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

This is a suit for tbe return of money loaned. Plaintiff claims that a piece of property wbicb sbe owned in Slidell, La., had been sold for ber by a Mrs. Pick, who, as a result of tbe sale had come into tbe possession, as agent for plaintiff, of tbe proceeds, and that plaintiff’s sister, one of tbe defendants, knowing of tbe sale, asked for a loan of $100 and was told by plaintiff that sbe did not have tbe cash with ber but that sbe would arrange for Mrs. Pick to turn over, out of tbe said sum, tbe amount asked for.

Plaintiff also claims that at a later date sbe loaned ber sister an additional sum of $35. Sbe avers that this loan was made out of ber savings account and that tbe money was withdrawn from tbe bank for that special purpose.

Defendants deny that they borrowed anything from plaintiff, maintaining that there was never any necessity for them to borrow as they were always in comfortable circumstances whereas plaintiff was always destitute.

Tbe testimony is most conflicting and in tbe absence of tbe presumption of correctness wbicb attaches to tbe finding of the trial court a reading of it in cold type would not leave us convinced that there is a preponderance either way. There are some circumstances wbicb tend to corroborate plaintiff and some wbicb seem to lend color to tbe denial of defendants. Mrs. Pick at first denied that sbe turned over any money to defendants for account of plaintiff, but later sbe does not recall whether she did or not.

It seems to us that with regard to the loan of $35, plaintiff bad in ber possession evidence wbicb would have corroborated ber contention. In other words, sbe could have produced ber bank book showing tbe withdrawal of tbe amount mentioned. On tbe other band, as corroborating plaintiff, we find tbe testimony of several witnesses that tbe defendant Wanita Poster bad stated that sbe was going to return tbe money to ber sister.

All in all, we think that this is manifestly a proper case for tbe application of the principle that appellate courts will not reverse tbe findings of a trial court on questions of fact, unless they are manifestly erroneous.

It is therefore ordered, adjudged and decreed that tbe judgment appealed from be and it is affirmed, at tbe cost of appellants.  