
    No. 10,988
    Orleans
    MAX BARNETT FURNITURE CO., INC. v. HOCK
    (July 2, 1928. Opinion and Decree.)
    Frank McLaughlin, 'of New Orleans, attorney for plaintiff, appellant.
    John E. Fleury, of.New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sold, and defendant bought, some household furniture amounting to $1150.00, for which defendant executed a number of notes maturing from time to time. He paid all of his notes except two, aggregating $100.00. He is sued on these two notes. Defendant pleaded failure of consideration. Plaintiff, beyond offering the notes in evidence, introduced no testimony. The case is here on an agreed statement of fact, to the following effect:

Some four months after defendant bought the furniture the veneer cracked, loosened and warped. This condition was brought to the attention of plaintiff’s manager, a Mr. Wells, who assured defendant that the furniture would be properly repaired and upon that assurance defendant continued to pay his notes. After paying ten of the twelve notes, and, no repairs having been made to the furniture, defendant’s wife and sister-in-law went to plaintiff’s store and renewed their complaint whereupon Mr. Wells told them they need not pay the remaining two notes (the ones sued on) until the repairs were made. The repairs were never made though the furniture was sold under a guarantee that it was first-class in every respect. Plaintiff frankly admits his obligation to repair the furniture or the right of defendant to deduct the cost of having it done, but says there is no-proof of the cost of repairs in the record.

The defendant testified that it' would cost $200.00 to fix the furniture, but plaintiff says he is not shown to be an expert and that his evidence alone is not enough. We reply that whether defendant be an expert or otherwise, there is no proof to the contrary and no attempt to rebut it on plaintiff’s part. The trial Judge discounted the evidence so as to offset the plaintiff’s demand, by reducing it fifty per cent. We see no reason to disturb his judgment De Minimus non curat lex.

The judgment appealed from is affirmed.  