
    No. -
    First Circuit Appeal
    BREAUX & BONIN v. MELCHIOR CAMPBELL, ET AL.
    (Dec. 30, 1924, Opinion and Decree.)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest — Bills and Notes— Par. 218.
    The burden is on the defendant maker, • who pleads lack of consideration for promissory notes sued on, to prove this lack of consideration.
    2. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on question of fact, being manifestly correct is affirmed.
    Appeal from the Parish of Vermilion, Hon. W. W. Bailey, Judge.
    This is a suit to recover on a promissory note. The defense is that the plows were not those which plaintiff bound himself tó furnish. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John Nugier, of Abbeville, attorney for plaintiff and appellee.
    M. T. Gordy, Kitchell & Boudreaux, of Abbeville, attorneys for defendant and appellant.
   LECHE, J.

This suit is based upon a note of $1500.00, dated January 6, 1921, due 60 days after date, and reduced by a partial payment of $1200.00 made March 15, 1921.

The defense is that the note was originally issued in representation of .part of the purchase price of a tractor and four plows, that the plows were not such as plaintiffs had bound themselves to furnish, that though frequently requested to change said plows in accordance with their agreement, plaintiffs have failed to do so, and, alleging that plaintiffs have already been overpaid by some seventy-eight dollars for the price of the tractori' defendant then prays in the alternatives ’ that he recover judgment against plaintiffs for' seventy-eight dollars, or, that plaintiff’s suit be dismissed as premature, for the reason that plaintiffs cán have no right of action until- ’they have delivered the proper plows, in accordance with their agreement.

The District Court rendered judgment in favor .of plaintiff as prayed for, and defendants have appealed. .

Plaintiffs ar.e doing business in the Parish of Vermilion and the defendant bought from them or through their • intervention, a Twin City tractor and .four plows in consideration of some twenty-eight hundred and twenty-five dollars. The agency .for the sale of this machinery and accompanying implements, is located at Crowley in the parish of Arcadia. The written order for the purchase of the tractor was drawn up and signed in Crowley. It was • not produced on the trial of the case, :but it appears that a member of the plaintiffs’ firm as well as. the defendant were- present at the time the order was given. The evidence does not show the date of the order, whether it included the plows, nor by whom it was signed.

Plaintiffs on the other hand, claim that they sold the tractor to defendant. This is not denied by defendant. But they also claim that the plows were ordered by defendant directly from the agency in Crowley and that they made no representations or promise to defendant in regard to the same. They further claim that defendant has made a separate payment for the plows, the price of the same, $400.00, not being included in the note given. They further claim that they are not responsible for any promises made to defendant by the Crowley agency in regard to the plows.

All the surrounding circumstances seem to confirm the position of plaintiffs in regard to this transaction, and the recon-' veritiOnal deiriand 'of' defendant shows that he paid more than the value of the tractor, the cost price of which is admitted to have been $2425.00. In other words defendant has paid $2525.00 or $100.00 more than the cost of the tractor. It was encumbent upon defendant to show with certainty the failure of consideration which he pleads in his answer and this he has failed to show.

From an equitable standpoint, defendant loses nothing, for the price of the plows which he claims should have been delivered to him, is lower than the price of the plows with which he was actually provided and he is the gainer for the difference in their values.

We believe the judgment of the District Court is .sustained by the law and the evidence and should be affirmed and,

It is so ordered.  