
    No. 2311
    Second Circuit
    BEAIRD v. WARD
    (November 10, 1927. Opinion and Decree.)
    
      (Syllabus by the Editor)
    1. Louisiana Digest — Costs and Fees — Par. 59, 62; Appeal — Par. 512.
    Where the defense, from the defendant’s point of view had merit, although the defendant lost, damages for frivolous appeal under Article 907 of the Code of Practice will not be allowed.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster.
    Hon. John S. Richardson, Judge.
    Action by B'. Prank Beaird against John L. Ward.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. P. Langston, of Minden, attorney for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, formerly an employee of defendant, brought this action to recover judgment on a note which bears 8% per annum interest and contains a stipulation for ten per cent attorney’s fees, and for a balance due on salary.

The defense interposed was that plaintiff had agreed with defendant to accept stock in a corporation to be organized by defendant in payment of the note and for a part of his salary.

On trial judgment was rendered against defendant for the face value of the note with eight per cent per annum interest thereon from date of the note and ten per cent on the principal sum and interest as attorney’s fees as well as for the balance claimed to be due for salary, and the defendant appeals, and plaintiff has answered the appeal praying that damages be assessed against defendant as for frivolous appeal.

OPINION

While we find that the defenses interposed by defendant were not established, yet the evidence indicates that there was some tentative understanding as to plaintiff’s accepting stock in a corporation to be organized by the defendant in part payment of the indebtedness, and that the defense interposed had at least from the defendant’s point of view some basis, and although the defenses made were not sustained we do not think it could be said that defendant did not believe his defense was without merit and that the appeal was prosecuted merely for delay.

“Allowance of damages under Code of Practice, Article 907, for prosecution of appeal as frivolous, held unwarranted where it was not manifest that appeal was taken merely for delay, nor that appellants did not believe in the merit of their defense.”

Silberberg vs. Kalil & Mickil, 159 La. 560, 105 So. 620.

The judgment appealed from is affirmed.  