
    No. 8189
    COURT OF APPEAL PARISH OF ORLEANS.
    A. P. PERRIN versus AUGUST SCHABEL.
    
      
    
   Dinkelspiel; J,

This controversy arises under the following 3tated facts:

Plaintiff claims of defendant, the sum of $300.05; that at various times from July 10th, 191® until August 1st, 1917, he had sold and delivered to defendant, various heads of oattls as per itemized hill attached thaxata hereto, and that there had heen paid to him hy the defendant from time to time, all but the sum of $300.25, for which he prays Judgment.

The defendant in answering plaintiff’s petition denied all and singular the allegations therein contained and purtiou» larly denied that at the time stated in the petition he was indebted to plaintiff at all, and denies further any indebtedness to plaintiff.

He then avers amongst other things that he had a contract with the Government and that he submitted said oontrp.ot and specifications to the plaintiff, who agreed to furnish the iA defendant with all the meat required under said contract and further that aoting in good faith, upon the instructions and representations of said plaintiff he, the defendant, bid on said oontraot, was awarded same, and turned over all the orders from time to time, to plaintiff, and alleging further in the answer that plsx he had nothing to do with the furnishing of the meat, but same was turned over to plaintiff and having made a loss in this transaction, through the fault of plaintiff, claims the entire sum as damages and that he had notified plaintiff of his loss, who paid no attention to same, and that he sent him a alt oheck for $773.56, which he claims was the total balance due on the aooount rendered by plaintiff to him and this oheok was received by plaintiff in payment of said aooount in full and reoognized same as an offset. Wherefore he prays that plaintiff's suit be dismissed at his cost.

are met with At the outset of this suit we/ the fact that compensation is plead when the'demand has not been liquidated.

Civil Code Art. 3309 reads:

"Compensation íak=3 piaos only between two debta, hav'ing equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demendable."

The Code of Practice, Art. 366 reads:

"Compensation, or setoff, is a mode of extinguishing debts, which takes place when it happens that both plaintiff and defendant ere indebted to each other; each retaining, in payment of the sum due to him, the amount which he owes to the other."

There are numerous deolsione by both this Court and the Supreme Court, whioh maintain both the Civil Code and the Code of Preotice, and in the ca9e of Hope vs. Howard, 19 Ann. p. 465; where the Court held:

"Plaintiff filed a bill of exception to the admission of the evidence, and the objections in the bill are, that his olaim was a liquidated one, having been liquidated by the acknowledgment of the defendant, in his answer, and that an unli-quidated olaim, as was defendant's for the sale of the wcod to plaintiff, oould not be pleeded in compensation against it, nor could defendant1s claim be pleaded in reoonventlon, because it was not connected with his, plaintiff's olaim for rent, and because both parties were residents of the same parish."

Gardner vs. Hattier, 9th Court of Appeal, 18:

"It is of the essence of the plea in compensation that it admits the debt' sued on." jJ

In Maillet vs. Martin, 7th Ann. 635:

"Proof of compensation oannot be reoeived where the defendant's plea of compensation is vague and indefinite. Such a p'lqa should state the nature and amounts of the claims, with suoh precision as to prevent the plaintiff's being surprised."

We therefore hold that under the pleadings presented exceptions 6 by the defendant in this case, proper/a»$i¿eíáx®e having been made to tie receiving of evidence attempted to show damages to the extent of amount of plaintiff's claim and denying his obligation, cannot be maintained under the laws of this State and therefore the objection to taking t93timony should have been maintained and plaintiff having proven the entire amount of balanoe due and sued for, is entitled to judgment therefor, together with interest as prayed for by him.

For the reasons assigned, it is ordered,- adjudged and deoreed that the judgment o-f the Court aqua be and the seme is affirmed,, with costs of both Courts to be taxed against defendant.

-Judgment affirmed.  