
    Thomas O’Brien v Patrick Flynn.
    The evidence of one witness is sufficient to prove payment of a pre-existing obligation, even exceeding five hundred dollars: the rule of evidence contained in article 2257 of the Civil Code, being applicable to the proof of contracts, not to the proof of the extinction of contracts.
    Appeal from, the District Court, Third District, Parish of Jefferson, Gla/rleet J.
    
      ff. B. Duncan, for plaintiff.
    Maries, for defendant and appellant.
   Buchanan, J.

The plaintiff sues upon a note made by the defendant on the 20th June, 1S51, for sixteen hundred dollars, payable on demand to the plaintiff or his order.

The suit was instituted the 8th April, 1852. Defendant pleaded payment. He has proved by one witness that six hundred dollars were paid by defendant’s wife to plaintiff, on account of this note, on the same day that it was made. The witness declared that it was he himself who drew the note, and that it was given in settlement of a partnership account between the parties, in jobs of ditching and canalling, which were entirely finished before the note was given.

There was also proof of a sum of one thousand dollars having been received by plaintiff for account of defendant from a third party.

The District Judge seems to have been of opinion that, as each of these payments exceeded five hundred dollars, and as they were only proved by one witness each, the proof was insufficient under the 2257th article of the Code. He accordingly gave judgment in favor of plaintiff for the amount claimed: but on motion, granted a now trial, to enable defendant to procure corroborative proof. On this new trial, the defendant offered an additional witness, who swore to an acknowledgment having been made in his presence by plaintiff to defendant of the receipt of those two sums of six hundred and of one thousand dollars respectively. The District Judge appears to have attached no credit to the testimony of this witness, for he again rendered judgment in favor of plaintiff for the full amount claimed.

Wo had not the advantage, like our brother in the District Court, of seeing the witnesses ; but agree with the counsel of plaintiff and appellee, that there are circumstances of suspicion apparent upon the face of the evidence of Michael Erwin. He testifies that he was passing by the Louisiana Hotel, where plaintiff and defendant were standing, on the 2d or 3d November, 1851—heard defendant ask plaintiff if ho had received one thousand dollars from Egaña. Plaintiff answered that ho had. Defendant asked him if he received six hundred dollars from Mr. Sullivan. Plaintiff answered, he had. Defendant then told plaintiff, I want my note. Plaintiff said he had not the note with him then; that his wife had it, and that defendant could get it at any time. All this conversation was hoard, if we may believe this witness, by a person who was merely passing by two persons standing together in the street, one of whom at least, (the plaintiff,) he declares was a stranger to him; and is detailed with the utmost minuteness of time, place and circumstance, seven months after-wards. This Court has often had occasion to declare testimony of confessions of the party to be the weakest kind of proof; and we are free to confess that the present instance offers, in our estimation, no exception to that general rule. The evidence of Erwin has produced no effect whatever upon our minds, as it produced none upon that of the Judge of the District Court. But there rcmains the positive evidence of one witness (Sullivan) as to the payment of six hundred dollars, on account of this note. We are of opinion that the evidence of one witness is sufficient to prove a payment of a pre-existing- obligation, even exceeding five hundred dollars : the rule of evidence contained in article 2257 of the Civil Code, being applicable to the proof of contracts, not to the proof of the extinction of contracts. See Ferry v. LeGras, 5 M. R. 393; Armors. Hide, 14 L. R. 346 ; Palmer v. Dinn, 2 Annual R. 536.

It is further shown, by legal evidence, that the defendant was engaged in making a canal upon Johnson’s plantation, of which J. 7. ele Egcma was agent; that plaintiff collected of Egaña, on the 19th September, 1851, one thousand dollars (whether as defendant’s agent or as his partner, does not very clearly appear’,): that he refunded to defendant’s wife eight hundred dollars of the money so collected; and that defendant sanctioned the payment to his wife.

If we add the two hundred dollars, balance of the thousand received from Egaña, to the six hundred proved by Sullwan, we have proof of eight hundred dollars received by plaintiff on account of defendant, since the date of the note sued upon; and which, in the lack of proof of any other claim of plaintiff against defendant, we think should be credited upon said note.

It is, therefore, decreed, that the judgment of the Court below be reversed, and that plaintiff recover of defendant eight hundred dollars, with legal interest from the judicial demand (10th April, 1852,) until paid, and costs of the Court of the first instance; the costs of appeal to be borne by the appellee.  