
    NO. 8781
    COURT OF APPEAL PARISH OF ORLEANS
    D. E. WILLIS versus A. G. DARDEN
    
      
    
   Dinkelspie; J.

f— Plaintiff brings this suit alleging that about the 1st lay of May, 1931, he entered into a verbal»agreement with the defendant, whereby the latter w'jc, bo pay plaintiff a com- . •mission of fifty p---r cent of the net profits on all lumber bought and sold by plaintiff, and further alleges that as a, result of the transactions mods by plaintiff unier this agreement, there was a balance due him of-$349*17, together Tilth the further sum of $51.01, for expenses paid out by him for defendant's account; claiming thrt defendant owed him the sum of $300.13, the righteen cents being wn-vied by plaintiff in order to bring the suit within th“ jurisdiction of the Court.

The answer denies th^t any agreement was made relative to i' commission on sales rnd alleges further that no agreement was made for the employment of plaintiff, but th°t a weekly salary was paid by the defendant to plaintiff for his services.

The reoori contains sundry aocounts annexed to plaintiffs petition, showing expenses paid by him during the course of his employment, also giving credit for various sums plaintiff claims to have received from defendant during the services rendered to defendant by plaintiff; he s'.ver.rs that defendant eii-tered into a contract with him May 1st, 1931, which was a verbal agreement and there was no salary to be paid him st all, and he states in his testimony various purohaee. he ms.de of lumber, a.s well as sales msde by him for the. defendant, in which he claims the profits were to be divided half and half.

Without entering into details of this testimony, we are satisfied from the major portion of it. that the lumber purchased and sold by plaintiff was the property of the defendant, end that he, the defendant paid all his employees v/hatever was due them, every Saturday night, and amongst the employees was plaintiff, who attempts to show that the money he received we,a money for expenses) hut reeding his own testimony and from his own lips we are convinced that that is not the case; he makes an attempt to prove the |51«01 for expenses and furnishes sn itemized statement of same, but we sre satisfied from the evidence in this record thst this money was the money of the defendant, given to plaintiff at such time as he required, viith or without salary, dxxxkix just as plaintiff demanded it.

Plaintiff would estimate the profits on «.mount of lumber sold, in hie statement» he did not include in this statement the lumber left on defend-.-nt'e hends; he did net attempt to make up v complete account, but admits thet the unscll pert of the lumber wos defendant1 e profit, whilst tils testimony troves tint tho unsold port of the lumber was of poor qu-lity in bod condition, unsold, at the time this pi' intiff wt :¡ eng-.ged -with ths defend r.t, end would not, from all the testimony in this record, produce anything like the price claimed by plaintiff. Hence it would be utterly impossible to predícete any statement of profits, without first getting t whet lumber v.,!.-s not sold end whet the price would be. Thi3 lumber, whatever it ws s, was ps.id for by defend-nt, vías in his possession, under his control, and plslntiff was in no wise interested therein. Plaintiff says th-“t when he first handid a statement to the defendant which is the statement annexed to his petition, that defendant, without looking at it, rejected it, paid no attention to it, refused to heve air-thing to do with it; yet, we find that subsequently, notwithstanding this cl'im of plaintiff, when undeniably, and admitted by plaintiff him-<elf, instead of receiving as he formerly did, his pey envelope on Saturday nights with twenty five dcll’-rs per week, he received thirty dollars a week, without any -agreement one way or the other; he simply found the money in his pay envelope, and ms.de no objection thxx* thereto, he accepted it without demur, without a word, and asked no explanation of any kind or ohe-racter.

On the other hand, defendant's testimony is positive, unqualified, admits of no doubt of its truthfulness, and its absolute veracity, and impresses us with the fact that he has stated fully, all that there wee in, this oase, so far as plaintiff was ooncerned. He swears thst plaintiff, who had been in the lumber business all his life was disengaged, was idle, doing nothing, and that he, defendant, knowing plaintiff to be an expert lumber man, employed him without any agreement of any kind or character, and from week to week, every Saturday night, plaintiff was handed his pay envelope, for a time containing twenty-five dollars per week; it was received by jMtiix plaintiff without a word of remonstrsnoe, without e.ny objection of any oharaoter, accepted by him. And we find also that when the plaintiff wanted any expense money he asked for and received it, and that without any question, so that when defendant was asked whether or not he kept books and he answered in the affirmative, and was asked whether the statement of plaintiff in this oase was or not correct, with the exception of the division of the profits, he said, virtually, yes he as sumad it to b.s correct; hut he ’disclaimed any agreement to shar-e profits upon which plaintiff has based his entire claim. Not only are these facts abundantly proven to our satisfaction, but beyond this, there are in this record two letters written by plaintiff to defendant, and we reproduce them here:

."N. 0. La. Deo. 28, 1921.
Mr. A. ¡3, Darden.
Sir:
Will you please let my .wife have Twenty Dollars ($20.00). I oan't work.
Set the shipment from Gum on the traok Public Belt, River Front between Iberville and St. Ann St,
Let the N. O. R. W. & E. L. Co. rest till tomorrow. I am not siok, but I oan't walk. Taxin brought md home.
Yours truly,
(Signed) D. E.■Willis."

Another letter was written by plaintiff which reads 38 follows:

"N. 0. La. 1st-6-33.
Mr. A. G. Darden, 3103 Carrollton Avenue, City.
Deer sir and friend:
I am in a oriticel condition, both physically and financially; my will power completely exhausted. I therefore send my wife vrith this letter to you for a little assistance for our actual needs, with a note th*t will explain itself.
In addition ple-,se let me have a. few dollars personally and if I can regain my health I will show my appreciation. If I don't then you are secured.
Sincerely yours,
D. E, •Willie."

The letter referred to contained a note for $75.00, peye-ble on demand, end hsd written on the back of it "secured by certs,in property in case of my death".

Defendant testifies that he gave back to the wife the letters in question, refused thxiaxK the loan asked for.

If defendant ’was indebted in any amount or in the amount plaintiff dK claimed by plaintiff he/oertainly had a right to demand the money due him, which was far in excess according to his ideas, of the amounts he wanted to borrow; the plaintiff swears that the only parties present at the time this fifty-fifty contract was entered into was he and the defendant; no one else there.

Under the well settled essentials of law, a plaintiff must make xxi his os.ee certain, and not leave it-indefinite i» XkBxmini and undetermined. In this plaintiff has utterly felled; hence his claim must be rejected.

Feb. 10, 1923.

"Ths essential allegations oontained in plaintiff's petition are not supported, hut negatived, even by his own testimony."

Seuer vs. Union Oil Co. 43 Ann. 699/
Viotoire vs. Moulon, 8th Martin 400.

For ths reasons assigned, it is ordered, adjudged, and decreed, that the judgment of the court aguo "be and the same is hereby annulled, avoided and reversed, and that there he now judgment in fsvor of ths defendant, dismissing plaintiff's suit, et his costs in both Courts.

Judgment reversed and- judgment in favor of dafendant.  