
    No. 10,306.
    Orleans
    DAVIS WOOD LUMBER COMPANY, Appellant, v. FRANK BENINATE.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)
    
      (Syllabus by the Court.)
    
    1. Louisiana Digest—Evidence—Par. 59, 344.
    Defendant’s unsupported testimony will not prevail over the denial of plaintiff.
    Appeal from Second City Court, Hon. George P. Platt, Judge.
    This is a suit for the price of lumber sold and delivered. The defendant alleged a contract whereby $200.00 was to be paid —no extras were to be charged.
    There was judgment for defendant and plaintiff appealed. Judgment reversed.
    
      E. J. Robin of New Orleans, attorney for plaintiff, appellant.
    Jos. Lautenschlager of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for lumber sold and delivered.

Tbe plaintiffs allege that they sold and delivered to the defendant between September 7 and October 22, 1924, lumber amounting to $318.77, for wbicb tbe defendant has been credited with $7.53 lumber returned and $200 paid cash on December 21, 1924, leaving a balance due of $111.24, wbicb defendant refuses to pay. All of which appears by detailed bills annexed.

According to tbe detailed bill, $203.87 are charged as “Contract” and were delivered on or before October 10, 1924; and $114.90 were sold and delivered on October 22, 1924, and are charged as “Extra.”

Tbe defendant admitted “that tbe plaintiff did furnish him with tbe lumber set forth in tbe itemized account attached” to tbe petition, but denied that any part thereof was “Extra”; be averred that be was about to erect a building; that be bad plans and specifications made; that be submitted tbe same to tbe plaintiff, who told him that he would furnish tbe necessary lumber for $200; that when tbe plaintiff delivered tbe first lumber be noticed that it was short and called tbe attention of plaintiff, who furnished tbe additional lumber, but that be never agreed to pay more than tbe original estimate of $200; that be paid tbe $200 as per contract, but refused to pay tbe extras because be does not owe them.

There was judgment for defendant and plaintiff bas appealed.

Tbe only question is one of fact, did plaintiff agree to furnish all tbe lumber for $200, of course, tbe burden of proof is upon tbe defendant.

He swears that be went out to see Mr. Wood, without saying wbicb one, and presented bis plans to him, and asked him what would be tbe amount of lumber to furnish; and Mr. Wood told him to come back in a day or two and be would give him an estimate and a price upon it; be went back, but Mr. Wood was not there, but tbe man in tbe office, whose name be does not give, was there, and be said $200; defendant told him all right; be furnished no list to Mr. Wood, nor did Wood furnish him with any list; tbe plaintiff sent tbe lumber estimated at $203.87 tbe next day; tbe carpenter that was doing his work noticed a shortage at once; be made out a list of what be was short, and defendant sent it to tbe plaintiff; tbe plaintiff then delivered tbe shortage a few days after, amounting to $114.90.

It is this amount of this shortage wbicb tbe plaintiff is claiming; tbe four dray receipts for tbe shortage are all marked “Extra”, but tbe defendant did not notice this mark “Extra”; tbe receipts for tbe original order are marked, “loe eon.”

There was no agreement as to tbe price of this shortage; after tbe bill for tbe shortage was presented to him be called at tbe office of plaintiff; Mr. Wood was not there,' but be spoke to tbe office man and told him be did not owe that bill.

Robert M. Wood, secretary-treasurer of plaintiff’s, testified that be caused a list to be prepared in bis office of tbe lumber that they would furnish and that be fixed tbe price tbereon; and that it was customary to furnish tbe applicant for lumber a copy of that list witb tbe estimate; they do not make contracts on specifications because they know nothing of building operations; they make a list of what they think tbe contractor wants, or tbe contractor usually submits a list, and they make a copy of it and submit a price on it; they never bid according to. plans and specifications; the defendant furnished the list of articles needed and they gave him a price on it, and that estimate was presented to defendant; the estimate was prepared from a list furnished by defendant; he furnished a list with short lengths which they do not supply, as they do not cut their lumber; but they supply a long piece from which short lengths are cut. The defendant spoke to him when he called at their office; it is customary to hand the list and the estimate to the con-' tractor showing what they would supply for so much money; they do not agree to furnish anything except what is stipulated on the list; “he never, at any time, undertook to supply the defendant with all the lumber that was necessary for him to make the repairs to that particular building, for a fixed price”; they do not know enough about building to guarantee to do such work; it is customary .for the contractor to furnish a list on which they bid; they do not agree to furnish according to his list, but according to theirs, and it is up to him to check it and determine whether the right amount and grades are being furnished.

Defendant has failed to prove that plaintiff agreed to supply him with all the lumber necessary to make his improvements. He swears to it; but plaintiff denies it; and all the circumstances and customs of the trade are against the defendant. Defendant says the agreement was made' with “a man in the office” because Wood was not there at the time; but he failed to identify or to produce the man in the office. His memory also is somewhat deficient.

He says the extra lumber was delivered a day or two after the “local contract,” October 7, 1924, while the dray receipts for the “extra lumber,” signed by 'him, are all dated October 22nd. He says he paid the $200 by cheek two days after delivery of extra, but he does not produce the check. According to plaintiffs’ itemized account annexed to petition the $200 were paid on December 31st, at least two months after the completion of the work.

In deciding for the plaintiff we do the defendant no injury, as he will have received the value of his money. Were we to decide for the defendant he would be enriching himself at the expense of the plaintiff, which the law will not permit. C. C. 1965. The defense is doubtful and must be decided against the defendant.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that the defendant Frank Beninate be condemned to pay to the plaintiff, the Davis Wood Lumber Company, Inc., the sum of one hundred and eleven 24-100 dollars, with five per cent per annum interest from November 22, 1924, till paid, and all costs of suit with privilege on the dwelling No. 512 Opelousas Avenue; Algiers, Fifth Municipal District of the Parish of Orleans, in the square No. 118, bounded by Opelousas Avenue, Evelina, Yerret and Olivier Streets.  