
    No. 5736.
    LOUIS PRECHTER vs. A. B. JANNARRELLI.
    Syllabus.
    The burden of proving payment is on him who pleads it.
    Appeal from tbe Civil District Court, Parish of Orleans, Division “A,” No. 99,465, Hon. T. C. W. Ellis, Judge.
    Sol. Weiss, for plaintiff and appellee.
    E. A. 0’Sullivan, for defendant and appellant.
   His Honor,

EMILE GODCHAUX,

rendered the opin-' ion and decree of the Court as follows:

Plaintiff sues for $200 as the balance unpaid of a contract of $2,600 for furnishing certain labor and material, and the defendant pleads payment. Plaintiff has proved the execution of the contract, that the only amount he has received on account is the sum of $2,400 and that there is consequently du.é the sum claimed.

The defense of payment of this balance rests upon defendant’s assumption that he is’ presently entitled to the benefit of certain credits appearing upon a statement of account furnished by plaintiff at a time when the work was still in progress and the contract had not yet been fully performed. But it is shown that in this account' defendant is first charged with the entire contract pricé and then, as the work was incomplete, at the time, he is given credit thereon for amounts representing the unfinished portion of the contract. When the whole contract- had been performed, these' credits were necessarily wiped out and under no possible theory is defendant now entitled to claim the benefit of same. • ■

Opinion and decree, April 21st, 1913.

Rehearing refused, May 19th, 1913.

We do not consider .that this is a proper case for the award of damages for a frivolous appeal and the judgment will not be amended in that respect.

It is accordingly ordered that the judgment be affirmed.

Judgment affirmed.  