
    No. 11,717
    Orleans
    ASSOCIATED MOTORS, INC., v. BURK
    (January 7, 1929. Opinion and Decree.)
    See, also, Associated Motors, Inc., vs. Burk, 166 La. 655, 117 So. 763.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellee.
    Cyril F. Dumaine, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an open account in the sum of $146.17. The record consists of the testimony of plaintiff’s witnesses alone, one of whom testifies that the account was presented to defendant, who made no objection to any item appearing thereon, but, on the contrary, promised to pay the account.

The defense, as presented to this Court, amounts to the contention that the plaintiff should have been non-suited for failure to prove the several items making up the account.

The defense is without merit. The silence of defendant at the time the statement of account was rendered to him, together with his promise to pay, amounts to an acknowledgment of its correctness and gives the claim sued on the status of an account stated. Oakley vs. Weil, 7 La. Ann. 169; Bloch Bros. vs. Ferckaud, 13 Orl. App. 369. Flower vs. Millaudon, 19 La. 195; Putnam & King vs. Live Oak Mercantile Co., 122 La. 507, 47 So. 846.

The appellee has answered, asking for damages for frivolous appeal. We consider the appeal frivolous and will allow damages, which we fix at five, per cent.

For the reasons assigned, the judgment appealed from is affirmed. It is further ordered that plaintiff recover damages for frivolous appeal in an amount equal to five per cent of the sum sued on.  