
    Bruno Mitchell- -vs- Dr. James R. Spears-
    No. 7878-
    Court of Appeal. Parish of Orleans.
    .Blnkelsnlel- J.
   Dinkelsriel- J

Plaintiff instituted this suit, claiming that on the 13th. day of May, 1911, he entered into a written contract of. lease with defendant, whereby he leased to him four lots of ground, in the Parish of St. James, for a term of five years, begining on the 19th. of December, 1911, with the prevelege of renewal for five years more, at a rental of $1.75. per month for eaoh lot or $7.00. per month for all. That the rent due by defendant for the month ending October, 19th. 1916 was not paid by defendant and has never been paid, and no rent has been paid from that time to the present time.

That there is now due plaintiff the sum of $196.00. being the rent from September, 19th. 1916 to January 19th. 1919.

That defendant continued in the actual occupancy of the property during the entire five years of said lease'; remained in possession and oocupanoy after the termination of said five years, thus renewing said lease for a like term and has remained in possession and occupancy ever since.

That defendant had erected buildings on said four lots of ground which are.still upon them, and that plaintiff has a lessors lein and privelege upon said buildings to secure the payment of said rent due him.

That plaintiff has good reasons to beleive that defendant will remove said buildings from said land and thus deprive plaintiff of hiB lein there on.

Upon making the necessary affidavit, he prayed that a writ of provisional seizure issue, seizing the property herein described for the amount claimed, with recognition and maintainanoe of his lessors lela and prívelaje upon tka property and effect» provisionally seized, and for judgment recognizing said claim.

Tke writ as prayed for issued and tke property in question was seized. Subsequently defendant caused tke property to be released upon executing bond according* to law..

On tke 17tk. of February, 1919, defendant filed kis answer, and whilst admitting articles 1, S, 3 and 4 of plaintiffs petition ke denied articles 5 and 6, and assuming the position of plaintiff in reconvention, claimed that plaintiff in suit was indebted to kim in tke full sum of $1.000.; that because plaintiff has caused to issue against kim tke writ of provisional seizure, and tkat tkereunder did seize, and cause to be seized, tke buildings and property and effects situated on said four lots of ground, leased by kim to defendant in suit, plaintiff in reoonvention.

Alleging further, that said issuance of said, writ of provisional seizure was maliciously and wrongfully obtained, and that tke facts alleged in tke petition in articles 3, 5 and 6, which are denied in the foregoinf answer are false and untrue and that the affidavit is also false and untrue, Wherefore, by reason of the malicious and wrongful provisional seizure and of the seizure made thereunder, and by the unlawful, malicious and wonton and unwareented proceedings and interference with the business of defendant in suit, and plaintiff in reconvention, he has suffered a loss and damage amounting to the sum of $1.000. , as follow»;-Attomeys fees, the sum of $150.00. - Expenses lnourred. In furnishing a forthcoming bond $35.00. Damage done to defendant in suit and plaintiff in reoonventlon hy reason of lose of tlme$ 50.00. and finally, damage done to defendant in suit and plaintiff in reoonventlon, hy reason of injury to hie feelings the sum of $775.00. And prayed for dlsalseal of plaintiff's suit and judgment for $1,000.00.

Subsequently on the 34th. March., 1919, through his Counsel, plaintiff in reoonventlon and defendant in suit, with leave of Court first had and obtained, filed a supplemental answer and petition in recon-vention in whioh he alleged, that on 19th. September, 1916, he defendant, entered into a written oontraot by whioh he advanced oertaln amounts to plaintiff, and was authorized to pay a oreditor of plaintiff certain amounts totaling the sum of $191.09, and it was agreed and understood that these sums thus advanoed, togother with interest thereon at the.rate of &fi per annum, from September, 19th. 1916, would be applied to the payment of rent at the rate of $7.00. per month, and finally, defendant plaintiff in re-oonvention, pleads payment and prays for judgment dismissing the suit and for all general relief.

The testimony, in this oass, was taken in the Clerks Office of the Court, not in the presence of the Judge. Amongst the witnesses there was drnirtTs wife introduced in his behalf, and after showing her various reoeipts and stubs, the ques-ion was asked her;-

*Q- I show you a stub of a receipt, Marked PI?
$A— This is Dr. Spears writing. Dr. Spears wrote " that stub and wrote out the receipt and after * writing the receipt I signed it.
"Q- What ia the amount?
"A- The amount on the stub shows Í183.00., and the "reo«lot was for ths same amount, and that amount "vaa paid me. Dr. Speara had paid nothing on the leae "lease alnoe that date. " -She save that she was the wife of plaintiff..
The next witness was the plaintiff kimaelf, and in answer to the question, when the receipt in question, shown him, was signed; he says, in May: 1916. And in answer to the question;-
"Q- Did he pay you any money"? Ho aais;-
”A- Dr. Spears did not pay me any money except that "settlement, I believe, it was about one hundred and "some odd dollars. I don't know how to rsad or write."

The next witness produoed was Lew D. Presoott. He was Interrogated as followe:-

”Q- Did you ever have any business with Bruno Mitoh-«-ell and his wife Josephine Mitchell, for which Dr. "Spears mid you for their account? -A- Yes, Sir."

At this point objection was made, that the evidenoe introduced or attempted to be introduced was illegal, on the ground, that it is an attempt to prove that the allegations of the supplemental answer changes ths issue of the original answer, and to the filing of whioh plaintiff has always objected. And, on the further ground that, the allegations of ths supplemental answer are too vagus and indefinate to admit of proof, not putting plaintiff upon his guard as to whom the alleged contract was entered into in favor of. - The Court overrruled the objections^ It was then agreed that objections of the same kind should apply to all evidenoe of the same character without the neoeseity of repetition.

The defendant, Dr. Speara, testifled;-

" Q- Wjien wa3 the last settlement you had witn Bruno Mitchell? -A- I think the la3t settlement we made was in 1915 or 1914. It was for an amount over one hundred dollars which is on the receipt which I gave him, which was in payment of professional services. In 1916, with a written agreement for some money I paid to Mr. Prescott amounting to $97.38. for things, and some other money which they had borrowed from me at different times".

He also testified, that Bruno Mitchell was present in all these transactions.

Next came various receipts and documents claimed to he due Dr. Spears by Mitchell, itemized, and particularly one, which was claimed to be a settlement in full between the parties, and signed by plaintiff's wife, Josephine Mitchell; the handwriting of the document being that of Dr. Spears. On this evidence, pro and con, the oase was submitted to the Court for adjudication.

The reasons assigned by the Judge a quo are found in the record. He maintains the plea of payment, dismisses plaintiff's suit, but without any damages, at plaintiff's cost.

The plea of payment necessarily commands the party making it to prove without a reasonable doubt that payment was made in manner setforth_. and it requires under the code and under the decisions, that that plea in order td be effective must be itemized, and when itemized proved and there must be no doubt about it, otherwise it will not hold. It has "been held;-

" The plea of payment, novation, or compensation I admit the existance of the debt whose continuante will be presumed; and plaintiff will have judgment unless defendant makes good his plea". 3 N. 8. 373. 13. La. 397. 14 La. 372. 18 La. 6. 14 Ann. 54.

In the oase of Terry vs. Heisen, et. als. 115 La. 1071-78.- "Where the dooterine announced has been maintained and numerous authorities in that case quoted to the effect as herein above stated by us.

In Segur -vs- Burguires, Executors,- 111 La. 1086, the Court goes on to say; " In any event, the law requires something more cogent to prove the payment of money than the mere probability, and as we find something less than that in this record, we conclude that the payment set up by the defendant has not been established".

On both sides of this controversy numerous authorities have been submitted which v/e have carefully examined. Whilst some of them are in point others are not and have no application whatsoever. We think that we have demonstrated, from our own view point, the authorities applicable, and which in our opinion control.

It is very singular that the defendant in suit and plaintiff in reconvention, when first filing his answer, claiming damages of all kinds and character, actual and punative, had not thought of alleging the fact of payment one way o.r the other, and we seriously doubt, whether under the allegations of the answei proof should have been admitted at all, but we have considered it nevertheless and have determined the while case, not^upon the law but upon tne evidence, and we find, that in our opinion there has been no payment of whatever kind or character made, except those prior and whioh have no bearing whatsoever on the payments claimed to have been made and settlement had from 1916 until this suit was tried.

For the reasons herein assigned, it is, ordered, adjudged and decreed that the judgment of the lower Court ’oe annulled,reversed and set aside, and, that there he judgment in favor of plaintiff, Bruno Mitchell and against defendant, Dr. James R. Spears, in the full sum of §196.00., with legal interest from judicial demand, with costs of hoth Courts and with lessors lein on the property provisionally seized.

-Judgment Reversed-  