Hale v. Fornea

• Decision Date: 25 March 1955
• Docket Number: No. 3977,3977
• Citation: 79 So.2d 124
• Court: Court of Appeal of Louisiana — District of US
• Parties: Fred HALE d/b/a Fred Hale Machinery Company, Plaintiff-Appellee, v. Thomas Earl FORNEA, Defendant-Appellant.

Page 124

79 So.2d 124

Fred HALE d/b/a Fred Hale Machinery Company, Plaintiff-Appellee, v. Thomas Earl FORNEA, Defendant-Appellant.

No. 3977.

Court of Appeal of Louisiana, First Circuit.

March 25, 1955.

Carter Erwin & Carter, Franklinton, for appellant.

Pittman & Seal, Bogalusa, for appellee.

TATE, Judge.

This suit upon a promissory note and an unpaid check is for monied judgment for the sum of $1,251.77, interest, and (the note's) attorney's fees; and also for recognition of a lien and privilege on a used GMC diesel motor unit per chattel mortgage securing the note. The plaintiff alleged that the note and check were given in payment of certain repairs, parts, and labor furnished to overhaul the aforesaid diesel motor.

Defendant's answer admitted signing the check, note, and chattel mortgage, but alleged in defense that said instruments were obtained by fraud and misrepresentation and further that no consideration was given therefor. Defendant alleges and sought to prove that the instruments sued upon were given for purchase of the motor delivered to him by plaintiff, which motor in fact belonged to defendant's father.

From judgment as prayed for in favor of plaintiff, defendant has perfected this devolutive appeal.

We believe that the evidence supports the factual conclusion of the trial court that an agent of the plaintiff, Fred Hale Machinery Company, picked up the GMC diesel unit at Angie, La., from R. H. Fornea, father of defendant, for a motor overhaul job, and brought same to plaintiff's repair shop in Baton Rouge; that while said motor was at Baton Rouge, defendant, Thomas Earl Fornea, called plaintiff's office and requested repair and delivery of the motor to him at Amite; that plaintiff knew that both R. H. Fornea, father, and Thomas Earl Fornea, son and defendant, operated sawmills in the same vicinity; that plaintiff Hale assumed correctly that Thomas Earl Fornea and R. H. Fornea had made an arrangement for the motor to be delivered to the son and repairs paid for by him, and that under the circumstances it was reasonable for plaintiff Hale ro assume that defendant owned the motor or an interest therein.

The trial court could not believe, nor can we, that the defendant did not know the motor delivered to him belonged to his father until sometime after same was delivered to defendant (when allegedly defendant's father recognized the motor by certain scratches thereon, and brought same to the father's domicile and place of business in Mississippi, where the motor now is).

A check or note given by a son to pay his father's debt is supported by valid consideration, Hardie & Co. v. Harrison, 167 La. 753, 120 So. 284; Matthews v. Williams, 25 La.Ann. 585; Reimann Manufacturing Co. v. Puccio, 1 La.App. 153. Furthermore, the burden of proof is on the defendant both to prove fraud; and also to prove that he affixed his signature to the check and to the promissory note without having received value therefor, LSA-R.S. 7:24, Reconstruction Finance Corp. v. Hutchinson, La.App. 1 Cir., 1 So.2d 423. Certainly the improbable story of the illegal attempted sale of defendant's father's property by plaintiff to defendant is not sufficient to bear this burden and to overcome the legal presumption that a valuable consideration was given by plaintiff.

The principal question for our determination is whether the parol...