
    No. 4599.
    Court of Appeal, Parish of Orleans.
    W. D. SEYMOUR VS. THE METROPOLITAN BUILDING COMPANY.
    This record presents a case not of credibility but of sufficiency of evidence, and, if defendant’s testimony be disregarded the plaintiff's is not sufficient to make out the case.
    Appeal from Civil District Court, Division “B.”
    Harold Moise, for Plaintiff and Appellee.
    J. J. McLoughlin, for Defendant and Appellant.
   DUFOUR, J.

The plaintiff claims demurrage under a verbal contract alleged to have been made after a written contract under which the defendant built a house for him.

The defendant’s representative absolutely denies that any such contract was made at any time, and the written contract is silent as to demurrage.

The plaintiff at first states repeatedly that the verbal agreement was made at the same time as the written agreement, and, subsequently, on being re-examined in rebuttal, says:

“It was after the contract, it must have been after,”' and “it was done at the same time, it must have been done afterwards. ’ ’

The law is plain that the written contract must govern as to all matters anterior,to and contemporaneous with its execution,

January 11, 1909.

Rehearing refused January 25, 1909.

It is clear that, even if we eliminate the testimony of defendant’s representative, the plaintiff’s testimony is too indefinite and unsatisfactory as to the time the agreement was made to warrant a judgment in his favor.

The record presents a ease not of credibility but of sufficiency of evidence.

Judgment reversed and plaintiff’s demand is rejected as in case of non-suit, at his cost in both Courts.  