
    GUS MAYER COMPANY, LIMITED VS DR. PARK HOWELL
    NO. 8699
    MARCH 19, 1923
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
   WILLIAM A. BELL, Judge

This is a suit upon an open aooount for balanoe due on the price of goods alleged to have been sold and delivered to defendant. The answer is a general denial. From a judgment in favor of defendant dismissing plaintiff's suit, plaintiff appeals. The nited account sued upon and annexed to plaintiff's petition is shown to have run from October of 1918 to Hovember 6, 1919. Several cash payments, one in 1918 and two in 1919,appear to have been made on said aooount, leaving a balance due of $143.58. Plaintiff has offered no proof whatever showing delivery of the goods to the defendant, and because of this fact it may be that the judgment appealed from has been rendered. However, we are convinced from the testimony of one of plaintiff's witnesses and from the defendant’s own testimony and admissions, that he was fully aware of the existence of this aooount upon the books of the plaintiff company and that he made full and sufficient acknowledgment of the debt to legally obligate himself for its payment.

The evidence discloses that in October, 1922, the aooount was placed in the hands of a young man conductlng a collecting agenoy. This witness' testimony is to the effect that after making demands for payment through the mail, he finally phoned defendant ani d®a questedX‘. him to call at an appointed hour at defendant's office. The result of this interview is related by the witness as follows:

"ft,-Will you explain to the Court what transpired between you and Dr. Howell-?
"A.-I called on Dr/ Howell in regard to this aooount and he said the bill was absolutely correct and 'I acknowledge it and I want to pay the bill, but I cannot pay it right new. I have just obtained a position with the school board and have been practicing in the country and, therefore, have not built up a large practice in Hew Orleans,' and he said if I waited until June that he would pay it, and he said he did not dispute the bill, and he wanted the Sus Mayer Company to give him some time to pay it.
"ft.-So he never denied it, he acknowledged it?
"A.-Tes, sir, and I told him that my client ' would not give him any time, and he said they would have to take action."

Shis same witness on cross-examination further testifies:

"Q.-What did he say?
"A.-He said 9The bil'l ia dus and I am willing to pay it, and I de net want to beat the Gas Meyer Ce. out of a cent and all X ask them te do is te wait trntil. the summer months, or June, and X will make arrangements te pay.”

She defendant, on diroot examination, denies that the goods were ever purohased by er delivered te him or that ho had any knowledge of the existenoe ef the account upen plaintiff's books, or that he ever received the monthly statements which plaintiff's bookkeeper swears were mailed to his offioe address, but he admits the interview with plaintiff's collector and testifies concerning this iaterview as follows:

"Q.-You remember Mr. Cenfflery calling on you, the gentleman who just left the stand: '
"A.-Yes, sir. '
"Q.-Did Mr. Cenfjery make a demand on you for this account?
"A.-Yes, sir.
"Q.-What was your answer to his demand?
"A.-I told him just as he said, that I 'could not pay. _
"ft.-And that' you would pay it in June:
"A.-If the bill was correct and if it 'was a just bill and I owed it. X did not want te dodge it.
* a * *
"Q.-Well, what did you say in reference t® June; why .did you make that statement if you did net ewe than amount te the Gus Mayer Co. ltd?
"A.-Because up te this time X had be*n unable te pay.
* * * *
"Q.-Just explain what you told Mr. Gentry at the time he made demand on you?
"A.-I told him that I was unable te pay the bill; that I had been in difficult circumstances financially, but that I was getting in better circumstances new, and that in the summer time I would be able to pay the debt, and if this debt waB perfectly fair and just I would settle it.
"Q.-You never denied the debt:
"A.-I did not know anything about it.
"Q. -Why should you make an admission of it if you did not know anything about it? You dld.net deny it. Yen simply said you would pay it in June:
"A.“I did not knew whether it is a proper charge or net."

Ho ether oonolusien can be drawn from the above-quoted statement» than that the - defendant was fully aware of this account and undeuht edly recognised the same as due and owing, but attempted to preeure further indulgence from plaintiff for the payment of same.

Counsel for defendant stresses in his brief the oo&dl provision of Article 2278 against the admission of parole evidence to prove any promise to pay the debt of a third person. The ebjeetlo) is plainly not applicable to the case before ns for the reasons that there is no issue raised here that the account in defendant's muse, was in fact created by or upon the alleged verbal premise on his part" to pay any debt contracted by a third patty. There is nothing in the' record to disolose timely objections te the admission of any such testimony as would establish such faots, even had suoh evidenoe been offered, nor has defendant attempted to either plead or prove that the debt sued upon was contracted by seme third party in his name and without his sanction or authority or that the goods were sold or." delivered to anyone other than himself. His own testimony is clearly: to the effeot that he told the collector he was unable te pay the - debt at the time demanded, but that he would be able te de so at a later date and would settle if the debt was perfectly fair and just. It may be added that he has failed either te plead or prove that the debt is not fair nor just, but on the contrary that he has clearly admitted the same bo be due by him. We are not concerned as to defendant's willingness to pay, but only as to.his liability, which, in. our opinion, has beun clearly established by a preponderance of evidence.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DEGREED that the judgment herein appealed from dismissing plaintiff's claim'be and-the same hereby is reversed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that thert now.be judgment in favor of plaintiff, Gus Mayer Co. Ltd., and against Dr. Part Howell, the defendant, in the sum of $148.63, with Interest, on said amount from juddial demand until paid, and for all costs in , both courts.

judgment reversed.

MARCH 19, 1983.  