
    No. 4664.
    Court of Appeal, Parish of Orleans.
    E. G. SCHLIEDER VS. BOETTLER & BRAUNIG.
    Issues of fact only are involved herein.
    Appeal from the Civil District Court, Division E.
    G. Lemle, for Plaintiff and Appellant.
    Waguespack, Foster & Denechaud, for Defendants and Ap-pellees.
   DUFOUR, J.

This suit grows out of No. 3720 of our docket and defendants must pay plaintiff, unless it is shown that payment of the rent notes was remitted.

April 19, 1909.

Rehearing refused May 3, 1909.

When the rent notes fell due for June and July, the plaintiff took them out of bank and made no demand for their payment ; this was before the filing of the suit against Schleider.

Subsequent to the suit there was a further remission of $50 a month for August and September.

There is conflict of testimony as to whether the remission was unconditional or based on the condition that Schleider would meet with success in Gentile’s suit.

This conflict was resolved against plaintiff by the trial judge who evidently came to the conclusion that the plaintiff’s claim was an afterthought.

We are similarly impressed.

This suit was long delayed; more so than can be explained by a failure to find the notes.

Ross, manager of the Brewery Go., might have made matters clearer, if produced as a witness by the plaintiff.

The circumstances which arose in August, when the suit was brought, cannot avoid the effect of a failure to previously claim rent.

Judgment affirmed.  