
    No. 10,806
    Orleans
    ALLEN v. GENTRY
    (May 21, 1928. Opinion and Decree.)
    
      (Syllabus by the Court)
    
    1. Louisiana Digest — Payment—Par. 21 Evidence — Par. 58, 59.
    He who pleads payment must prove it or plaintiff will have judgment.
    Appeal from Division “C,” Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Dr. Kotz Allen against Benjamin M. Gentr-y.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    James Brittingham, Jr., of New Orleans, attorney for plaintiff, appellee.
    S. G. Wimberly, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff claims rent for March, April, May, June, July, August, September and October — eight months — at fifty ($50.00) dollars per month. Total, four hundred ($400.00) dollars.

Defendant admits owing fifty ($50.00) dollars for October and pleads payment of the balance.

The District Judge gave judgment for three hundred ($300.00) dollars, and defendant appealed.

Plaintiff-appellee has answered the appeal asking for the amount claimed.

“He who pleads payment admits the existence of the debt, and must prove payment, or the plaintiff will have judgment.’’

Diggs vs. Parish, 18 La. 6.

Kennedy vs. Beaseley, 8 La. Ann. 88.

Irwin vs. Gernon, 18 La. Ann. 228.

St. Armand vs. Alexander, 18 La. Ann. 243.

Gernon vs. McCan, 23 La. Ann. 84.

Mantin vs. Dickson, 35 La. Ann. 1036.

Taggart vs. Noonan, 8 Orl. App. 150.

Precter vs. Jannorelli, 10 Orl. App. 179.

Succ. of Simon, 10 Orl. App. 70.

Mose vs. Traverse, 11 Orl. App. 342.

Defendant having the burden of proof as to ¡payment, a finding against payment is justified — where the defendant alone testifies thereto and is contradicted by a creditable witness.

Loyd Mercantile Co. vs. Long, 123 La. 777, 49 So. 521.

The only witness who swore to payment for any particular months was Benjamin M. Gentry, the former tenant, who did not produce his records, though he promised to do so. Furthermore, he could give no particular dates, and testified from memory entirely.

He was contradicted by plaintiff, who testified from record entries, made by his own hand, which apparently showed defendant was six months behind in the rent, but these records, though offered in evidence, are not in the record.

The only other witness is Miss Hazel Malone, stenographer for plaintiff, who testified defendant made two payments between June and November, but didn’t know what months they covered.

We agree with the trial judge in thinking that the proof does not suffice to sustain a judgment for two additional months.  