
    5244.
    (Court of Appeal, Parish of Orleans).
    HENRY P. MORALES vs. EDWARDO REGNERDO.
    Only issues, of fact are involved.
    Appeal from the Civil District Court, Division “B.”
    Rhodes & Morales, for plaintiff and appellant.
    H. L. Landfried, for defendant and appellee.
   ST. PAUL, J.

This cause involves only issues of fact. On July 24, 1909, plaintiff, sold defendant a barber shop for the sum of $400 payable $5.00 per' week, one of the ¡conditions being that a default in payment for four consecutive weeks would entitle the vendor to take back the property.

Defendant paid regularly until the end of December 1909; but plaintiff contends that, during January, 1910, defendant defaulted in his payments for four consecutive weeks, although due demand was made from week to week.

On the other hand defendant- contends that plaintiff failed to call for his money the first and second weeks in January; that thereupon he called at plaintiff’s homo to pay the two weeks, which the latter refused to accept saying that he did not then need the money but would call for it in a day of two. That as plaintiff did not call for his money he went again to plaintiff’s home to pay the third and fourth weeks which plaintiff again refused to accept. That the amount was again tendered to plaintiff’s attorney, who refused to accept the same.

This suit is for the possession of the barber shop. A number of witnesses testified on each side and their testimony is hopelessly conflicting. The district judge, who saw and heard the witnesses, believed the defendant’s side of'the story and rendered judgment accordingly.

March 20, 1911.

We are not prepared to say that he erred in his conclusions; but in any event plaintiff’s case is not made out. with anthing like the certainty required by law, and his demand was properly rejected; the more so as this suit involves only a question of plaintiff’s right to pursue the harsh remedy provided by the contract, and in no manner affects plaintiff’s right to claim the balance of the purchase price still due him If any. The reservation of defendant ’s to sue for damages is mere surplusage of which no notice need be taken.

Judgment affirmed.  