
    NO. 7860
    JOHN MIHALJEVICH VS MATO PARUN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opibiob.

By hie Honor John 8t. Paul.

Plaintiff olain¡a $1180 for haring "lodged ana boarded x x defendant from Uaroh 14th 1918 to June 23rd 1916, at an agreed charge of ‡30 por month"; upon whioh defendant haa paid nothing "although often oalled upon to do bo and repeatedly promising to Battle." Defendant donles the claim and alleges that plaintiff "never did demand payment of any board from him; but on the contrary, on Uaroh 16th 1916 an aooount waa Bottled between plaintiff and defendant, that pluintiff waa largely indebted unto defendant and that plaintiff thereupon exeouted and delivered to defendant his note for $678.41 payable ten months from date"; and that when said note matured, towit, January 16th 1917, defendant sued for the amount thereof, whioh plaintiff then paid.

Ihe prosont suit was filed flovembor 16th 1916, that la to say just two months before the aforesaid note matured.

I.

Defendant also pleads the preeorlptlon of one year under C. C. 8634; but the plea is not well founded. Under the Juris prudenoe the preeorlptlon of one year does not apply to claims for board and lodging furnished by private peraone, but only to the olaims of "innkeepers and suoh other persona", that Id to say, of suoh as make a buslneea of keeping lima and lodging houses. plaintiff in this oaaa waa not engaged in suoh business. See succ of Nitch, 22 An 316; Succ of Newton, 22 An 621.

IX.

1. Plaintiff testifies that defendant boarded and lodged with hini during the time claimed and under a diBtinot agreement with him to pay one dollar a day; that defendant fulled to pay him only because he olaimed to have nothing with which to do so until he should withdraw some money from a oertain homestead; and that defendant denied the debt for the first time only on June 25rd 1316, when he oeaaed to board and lodge with him.

2. A woman who aooied for plaintiff testifies that she heard defendant as't plaintiff to "let him Btay there and board, and íc x sc x he was willing to pay one dollar a day", to which plaintiff had agreed; that defendant boarded and lodged with plaintiff regularly during the period alaimOd.

Defendant udmits that he boardod with plaintiff, but denies that he was there by the iftonth, towit, "sometimes I did not eat five times in the month". He denies that he lodged with plaintiff except for a few days in the beginning; afterwards he lodged In his own house. He admits that a three dollar a day was reasonable for iM meals a day when he he topic them, but denies that there was any agreement about tha price. That on the oontrary, ha was willing an4 haft expressed hia willingness to pay whatever plaintiff should think fair; but that plaintiff and tha partner whoa he had at the beginning had refused to accept any compensation other than the remission of interest on some $3000 whioh the partners owed him as the purohaae prioe of a general store whioh he had sold them; with whioh remission of interest and the services he rendered in and about the store, they declared themselves fully oompensated for his board. Shat he and tho two partners had settlements together at intervals, at whioh their aooounts were adjusted, a balanoe struck, and the notes of the partners renewed for whatever they then owod. Shat he had protested that he was paying too little, but thoy had expressed themselves satisfied that on one occasion he had voluntarily given them an extra $60 saying that ho had oooasionally brought friends to dine with him; whioh $60 the partner^ had refused to take but had turned over to plaintiff, who (after aomo hesitation) finals aooepted it.

4. She testimony of the partner corroborates that of defendant in every particular; hiu testimony being aleo that tha arrangements about the board were a oonoern of the partnership, and not of plaintiff Individually as the plaintiff olaims.

III.

Jirón tho foregoing a a va ral things are to he noted, viz

1. Shat plaintiff sues on a contrast for $30 a month, hut has offered evidenoe only of a contract for $1 a day. These may seem to he the some, hut they are not; one being a contract by the month tho other by the day. under the former defendant would owe $30 for each month oven if he haa taken hut a single meal in that month; under the latter he would only owe for as many days as he had taken meals (as to which there is no proof whatever)

2. That plaintiff sues upon, and has offered evidenoe of, an alleged oonuraot with himself individually, and for a fixed price, entered into at the time the store was sold; and that the witnesses are two to £## two that no such oontruct was entered, into.

2. That long after the partnership v/ae dissolved and some nine months after defendant had Ceased to board with him, plaintiff again renewed hio note for the bule.noo which he owed defendant; although defendant had. denied the board debt at the time ho left. That plaintiff again waited eight months more (or 17 months in all) to bring this suit; that is to say until within two months of the maturity of the note given by him.

IT.

Se are therefore of opinion that plaintiff's olaim should have been rejected, and for these reasons;

1. Praetermitting the teohnioal point that one cannot recover at all upon a contract different from that sued upon, it is none the less clear that plaintiff could recover at moat only one dollar for each day on which defendant aotually toot his meals; and thero is no proof whatever on that point.

2. Whilst the number of witnesses i3 the same on both sides as to whether or not the alleged contract war. ever entered into; nevertheless they are two to one that plaintiff made no olaim under it hoforo the partnership was dissolved, and it is certain that he took no steps to enforce it judicially until nearly five years after its inception, and nearly 13 months after its termination; nor yet until within two months of the time when his nota would become due. These circumstanoes we tí ink sufficient to throw the preponderance of evidence toward the negative.

2. The fact that nearly a year after defendant had oeased to board with plaintiff, the latter executed his note in favor of defendant with interest and attorney's fees, is evidence persuasive of a final adjustment of aooounts between them; which adjustment should not ho disturbed exoept upon the most oonvinoing evidence of fraud or error, "A nota, due 1)111 or aooeptanoe may sufficiently show the admission of a balsnoo to oonstitute an aocount stated", I Oyó 37Z, note 99. And "while an aooouttt does not operate na an eatopnei, it is nevertheless the Ve/ rule that, a settled or stated aocount is oonclusi«B in the absence of frond, mistake or error; and the burden to impeach it by olear and convinoing testimony rests upon him rho on such (.'rounds would escape its binding force". I Cyc 455 note 89. See also Southern Pacific Co vs McMillan Co, 8 Orleans App 14, *'/a^ "«?{"■?>)

November 22nd, 1920.

(i'ho judgment appealed from is therefore reversed, and it io now ordered that plaintiffs demand bo rejected at hie oost. in both oourts.

New Orleans la,  