
    ZEMO’S HEAVY EQUIPMENT REPAIRS, INC. v. Alwyn CORNE, d/b/a Al Dozer Service.
    No. 12949.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1982.
    Rehearing Denied Aug. 19, 1982.
    
      David L. Kelly, Metairie, for plaintiff-appellant.
    Wayne J. McDougall, Chalmette, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Plaintiff, Zemo’s Heavy Equipment Repairs, Inc., filed against defendants, Alwyn Corne and Alwyn “Al” Corne Grading and Dozer Service, Inc., a petition on open account claiming a balance of $2,600.43 for providing trucking, hauling, and bulldozing services to defendants. Defendant denied liability, additionally pleading a setoff for work improperly performed by plaintiff and failure of consideration. The trial court dismissed plaintiffs petition on the basis that an item included in the account for $6,206.05, although included as a routine charge in the open account, was in fact based on an oral contract between the parties and as such required proof by at least one credible witness and other corroborating circumstances under LSA-C.C. Art. 2277. The trial court concluded that plaintiff did not carry this burden of proof and consequently could not recover. The issue is whether the record supports this conclusion.

The trial judge concluded that the parties enlarged the pleadings thereby converting the suit into one for a breach of an oral contract rather than a suit on an open account. Since the record supports this conclusion we believe the trial judge acted correctly.

After reaching this conclusion the trial judge evaluated the testimony of the plaintiff in light of Civil Code Article 2277 and reasoned that the plaintiff did not carry his burden of proof because he failed to present other corroborating circumstances to establish that there was an oral agreement between the parties to have an engine repaired for $6,206.05.

Our review of the record reveals a rather hopeless conflict in the testimony of the plaintiff and the defendant.

According to Dan Manuel Zemo, plaintiff’s principal officer, he and defendant had a verbal agreement that he would remove an engine from a particular bulldozer and rebuild it. However, after removal of the engine Zemo discovered that the engine block had a hole in it and he notified Corne who told him to locate another engine for the machine. Zemo located one in Jackson, Mississippi, rebuilt the engine, made the other repairs and Corne picked the machine up.

According to Corne, he bought this machine for $2,500 and made a special agreement with Zemo to repair it for not more than $2,500.00. Corne stated that the machine was worth $2,500 in its broken condition but if put into running condition it would be worth $5,000. Unlike their previous arrangements where Zemo would pick up machinery to be repaired, the understanding in this case was for Corne to bring the machine to Zemo and pick it up afterward and Zemo would work on the machine only in his spare time. When he received Zemo’s bill for $6,206.05 he “was really outdone about it.” When he spoke to Zemo the latter said that the machine was worth $10,-000 and Corne told him if he could sell it for $10,000 he would “make the extra thousand dollars.” After three months went by without the machine being sold by Zemo, Corne told him to take the machine for his payment and the two would be even but Zemo refused this offer. Corne further testified as follows:

“We talked about $2,500. But if it would have exceeded $3,000, it would have made me a little aggravated and when I seen the $6,200, it made me flip. It made me extremely mad and I told him the machine was not worth over $5,000 and all the time he said he could sell it for $9,000 or $10,000. He wasn’t able to sell it. I eventually sold the machine.”

Zemo admitted that he offered to sell the machine for Corne after the repairs were made and the bill was submitted. He thought he had a buyer for between $8,500 and $10,000, but this sale did not materialize. He stated that around Christmas of 1979 he had his last conversation with Corne and in that conversation Corne told him to “just take the machine back” because it was “doing [him] no good.” Zemo went to examine the machine and found that the clutches had been torn out and the tracks taken off but he told Corne he would take the machine back in payment. When he went back to pick it up three and a half months later the machine was gone and Corne’s men told him that Corne had sold the machine.

The record discloses that the trial judge was aware of the conflict in testimony and because of this he was unable to accept the version of the plaintiff. The trial judge concluded in his Reasons for Judgment “.. . and the court holds that he has not carried his burden of proof by a preponderance of the evidence and accordingly the Court will dismiss the suit.” We cannot conclude that the trial judge was clearly wrong.

Accordingly, the judgment of the trial court dismissing the plaintiff’s suit is affirmed with the costs of this appeal to be borne by the respective parties.

AFFIRMED.

SCHOTT, J., dissents with written reasons.

SCHOTT, Judge,

dissenting:

These parties did business with each other without disputes for some time until May 24, 1977, when an invoice was presented by plaintiff for repairs on a bulldozer owned by defendants. The ledger sheet on defendants’ account shows that it was paid in full until May 9, 1977, when plaintiff billed defendants for $7006.61 for repairs on another machine owned by defendants. Thus, when the second disputed invoice was submitted plaintiff showed defendants’ balance to be $13,212.66. Between June 30 and August 18 defendants paid $9000 on the account, leaving a balance of $4212.66. On August 20, plaintiff submitted three more bills to defendants for work that is not in dispute calling for payments in the amount of $1599.68, which brought the balance up to $5812.34. Between August 22, 1977, and September 25, 1978, defendants paid $3211.91 on the account, leaving a balance of $2600.43. Since both parties agree that the only disputed item was the $6206.05 it is clear that defendant paid $3605.62 on this disputed bill, leaving the balance sued on in the amount of $2600.43.

In his reasons for judgment, the trial court reasoned that the burden of proof was on the plaintiff to prove the disputed bill and it was required to offer the testimony of a witness and other corroborating circumstances in order to carry this burden. He continued:

“The testimony is in rather hopeless conflict. The plaintiff shows he did work on the machine. He testified that the engine cost more than $2500. The used engine, according to his invoice, was $1400 something and the other parts placed in there necessary for the machine to work came to over $3000. $3174.53 and labor $2776, and I imagine the balance is overhead and profit or taxes. However, I do not believe that the plaintiff has carried the burden of proof in proving that this was done as other work was done for the Corne account; as the other invoices he testified have regularly been paid. They were formerly friends and apparently fell out over this account. Since they had been friends for some seven or eight years that they fell out over this account, there must have been some justifiable dispute .... The testimony of the plaintiff and the defendant are equal as to what the transaction was, one affirms and one denies. There have been no outside corroborating circumstances which would substantiate the plaintiff’s demand and the court holds that he has not carried his burden of proof by a preponderance of the evidence and accordingly the court will dismiss this suit.”

I respectfully disagree with the trial court as to the absence of corroborating circumstances to support plaintiff’s position and would find that the same circumstances left unexplained by defendants require that the judgment of the trial court be reversed. In the first place, defendant’s own action in making payments on the account contradicts his testimony that he agreed to pay only $2500.00. Had this been so there would have been a balance of $3706.05 on the account. Instead defendants paid $3605.62, and left a balance of $2600.43. Secondly, both parties agree that when the balance of $2600.43 was supposedly owed on the account defendant was willing to turn the machine over to plaintiff in payment of the invoice. To defendant, the machine in its original broken condition was worth $2500. He again admitted that after the repairs were made it was still worth $2500 and this approximates the amount of the claim. Plaintiff agreed to take the machine in payment but when he went to pick it up defendant had sold the machine and pocketed the proceeds. The record does not show how much he got for the machine. However, as the trial judge noted, plaintiff had expended over $3000 for engine parts alone not to mention considerable labor costs incurred in the repair of the machine after which the machine was worth at least $2500 to defendant but defendant subsequently sold the machine for an undisclosed amount. Thus, the trial court’s conclusion that there was no corroborating circumstances in support of plaintiff’s position is clearly wrong.

Accordingly, I would reverse the trial court and render judgment in favor of plaintiff and against defendant, Alwyn “Al” Corne Grading & Dozer Service, Inc. for $2600.43 plus interest and costs. I would not cast Corne, individually, in the judgment.  