
    Samuel Stewart v. Alexander McDonald.
    Payment of a note may be proved by parol testimony, and its possession by another is only prima facie evidence of the indebtedness of the maker.
    APPEAL from, the Sixth District Court of New Orleans,
    
      'Howell, J. Boselius & Philips, for plaintiff. Fellows & Mills, for defendant and appellant.
   Ilslet, J.

This suit is brought on a note for two hundred and twenty dollars; two small items for materials furnished, thirty-one dollars; and three items for arrearages of rent, from December, 1860, to 1st December, 1861, two hundred and eleven dollars, and from the 1st December, 1861, to 1st of July, 1863, one hundred and fifty dollars; in all, three hundred and fifty-one dollars, the whole claim being for six hundred and seven dollars.

The answer and supplemental answer and exceptions are a general denial or plea of payment of the note for two hundred and twenty dollars, and a special denial of the other items of the account.

Judgment was rendered in the Court below in favor of the plaintiff for the sum of five hundred and eighty dollars; that is to say, for the amount of the note, two hundred and twenty dollars, the balance being for rent.

Having carefully examined the testimony adduced in the case, we think that it proves the correctness of the charge for rent up to the amount claimed, three hundred and fifty-one dollars; but we think the fact of the payment of the note is sufficiently shown by the witnesses, Drez and O’Hara. >

Under ordinary circumstances, it may be presumed that, if the defendant had paid his note, it would not have been in the plaintiff’s possession ; but this possession of it by the plaintiff is explained by the testimony of two witnesses; one of whom says: “I heard plaintiff say, when he was going out, everything is settled; and the plaintiff said, if he could find the note, he would give it to him; and, again, if he could find the $200 note, he would give it to him; and, if not there were witnesses enough to prove the payment.”

And the other witness testifies: “Plaintiff mentioned a note of $200 or $220 to defendant. I think defendant paid him the note at the time. Defendant said, you had better give me the note; and plaintiff said: I have it not with me, hut when I find it I will give it to you. They had a lot of money on the counter.”

This testimony evidently referred to the note sued on, which is the same that the witness Stewart refers to in his testimony. The agrégate items of thirty-one dollars are not proved.

The judgment of the District Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that judgment be, and it is hereby rendered, in favor of the plaintiff, Samuel Stewart, and against defendant, Alexander McDonald, for the sum of three hundred and fifty-six dollars; and that the costs of the lower Court be paid by the defendant and appellant, and those of this Court by the plaintiff and appellee.

HowEnn, J., recused.  