
    No. 10050
    Orleans Appeal
    REGINA VALDOZ, Appellant, v. MR. AND MRS. JOHN O'KEEFE
    (June 8, 1925, Opinion and Decree)
    
      (Syllabus by the Court.)
    
    1. Louisiana Digest — Evidence—Par. 59, 351.
    The plea of payment admits the debt and must be proven like any other fact by a preponderance of the evidence.
    Appeal from First City Court of the City of New Orleans, Section “A”, Hon. W. Alexander Bahiis, Judge.
    This is a suit to collect money deposited under a special agreement.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Albert B. Koorie, attorney for plaintiff and appellant.
    E. I. Mahoney, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff, an aged and ignorant negress, brings this suit against the defendants, husband and wife, alleging that the defendants induced her to withdraw her savings to the amount of $309.42 from the bank and deposit same ■with the defendant’s wife, with the understanding that if plaintiff recovered from an illness from which she was suffering at the time the money was to be returned, but in the event of her death, Mrs. O’Keefe, the defendant wife, was to keep the money.-

Defendants answered admitting having received $177.00 of the amount sued for and pleaded payment.

From an adverse judgment, plaintiff has appealed.

In argument in this court counsel for plaintiff admitted his failure to prove that more than $177.00 had been entrusted to defendants and conceded that the record showed that payment had been made to the extent of $93.00.

•There is, therefore, only $84.00 in dispute. As to this amount, we find no proof of payment. Mrs. O’Keefe testifies in a general way that she paid plaintiff all she owed her and a disinterested witness (Mrs. Burns) testifies that she was present when plaintiff received $63.00 from Mrs. O’Keefe and that plaintiff seemed “perfectly satisfied.” There is no written evidence of payment and the verbal testimony hardly amounts to a probability. A defendant pleading payment must prove it. The mere probability of payment will not suffice. Mary Eden vs. Florence Williams, 7611 Orl. App.; Bruno Mitchel vs. Dr. James R. Spears, 7878 Orl. App.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and it is now ordered that there be judgment in favor of plaintiff, Regina Yaldoz, and against the defendants, Mr. and Mrs. John O’Keefe, in the sum of $84.00, with costs of both courts.  