Barlotta v. Walker
| Decision Date | 27 April 1953 |
| Docket Number | No. 39186,39186 |
| Citation | 65 So.2d 122,223 La. 157 |
| Parties | BARLOTTA v. WALKER (two cases). |
| Court | Louisiana Supreme Court |
Midlo & Lehmann, New Orleans, for appellant.
Guy J. D'Antonio, New Orleans, for plaintiff-appellee.
The plaintiff brought two suits against the defendant on April 30, 1947, one to recover on a promissory note executed by the defendant in favor of the plaintiff on August 26, 1946 for the sum of $2,000 with 6% interest from maturity and 10% attorney's fees. The note was made payable sixty days after date but was extended ninety days, making the maturity date January 26, 1947. The other suit is to recover $2,105.86 with 5% interest from December 1, 1946 until paid. In his defense to these suits the defendant admits the indebtedness and reconvenes setting forth a claim of $4,861 for labor and materials furnished for extra work in addition to a contract he had entered into with the plaintiff for the remodeling and repairing of the plaintiff's premises. The cases were consolidated and tried. Separate judgments were rendered in favor of the plaintiff for the amounts sued for and the defendant's reconventional demand was rejected. Defendant had appealed.
These suits grew out of a building contract executed on April 29, 1946, wherein the defendant agreed to remodel and repair plaintiff's premises for the sum of $13,000. All labor and material was to be furnished by the defendant. The plaintiff had paid the defendant the full amount called for in the contract and, in addition thereto, the plaintiff was forced to pay $2,105.86 for labor and materials used in the remodeling and repairing of the premises which the defendant had failed to pay in order to prevent liens being placed on the plaintiff's property. The plaintiff loaned the defendant $2,000 for which the defendant gave plaintiff his promissory note, being the one sued on herein.
Since the defendant admits the indebtedness to the plaintiff, the only question presented for out determination is the claim for additional work set out in the reconventional demand.
The only testimony in the record is that of the plaintiff and the defendant. If the plaintiff's testimony is to be accepted, there was no extra work agreed on or performed whereas the defendant testified that the extra work was performed and the plaintiff accepted it. The lower court evidently believed the plaintiff because the reconventional demand was rejected. Under such circumstances, we see no reason...
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