
    No. 7065.
    CARROLLTON FEED CO., LTD., v. LEON LAPUYADE.
    Syllabus.
    Questions of' fact only are involved.
    Appeal from the Civil District Court, Parish of Orleans, No. 118,431, Division “D”; Honorable Porter Parker, Judge.
    Affirmed.
    
      Opinion and decree, June 11th, 1917.
    Frank Soule, for plaintiff and appellee.
    Albert Wilbanet, for defendant and appellant.
   His Honor,

EMILE GODCHAUX,

rendered the opinion and decree of the Court, as follows:

This suit is upon defendant’s note of $388.10, past due since November 10, 1916. The defense is that a few days after maturity plaintiff orally agreed to accept, in lieu of full payment, a partial cash payment of $250.00 and defendant’s 60 day note for the balance; that thereafter plaintiff declined to accept the partial payment» and the 60 day note, repudiated the agreement aforesaid and in defiance thereof instituted the present suit upon the original note.

It is at least questionable whether or not such an agreement as defendant sets up was binding on plaintiff or could serve as a defense to the present action; for it was made after the maturity of the note, was wholly executory in character and rested on no consideration whatever.

Be that as it may, the record satisfies us no more than it apparently did the trial Court that defendant has succeeded, as he was bound to do, in establishing clearly the existence of such an agreement. His testimony does not impress us favorably and still less are we impressed by the highly improbable tale of another witness heard on his behalf. The testimony adduced for plaintiff strikes us as more reasonable and the surrounding circumstances favor their version of the, matter. Moreover, after reading the record we can hardly escape the conviction that defendant had determined to delay payment of his note, even at the cost and expense of a lawsuit.

The judgment is accordingly affirmed.

Affirmed.  