Martin v. Bonnette
| Decision Date | 06 February 1933 |
| Docket Number | 4432 |
| Citation | 145 So. 706 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MARTIN ET AL. v. BONNETTE |
Rehearing denied March 10, 1933.
John A Williams and James H. Williams, both12 of Colfax, for appellant.
Cook & Cook, of Shreveport, and Clair H. McCain, of Colfax, for appellees.
Plaintiffs, the widow and heirs of G. H. Martin, deceased, seek, by this suit, to foreclose by ordinary process, a mortgage and vendor's lien granted by defendant on land in Grant parish, to secure payment of the two last maturing notes of a series of six, for $ 105.74 each, dated November 17, 1924, and maturing 20 and 24 months from date, respectively. The first four notes of the series were paid by defendant; three before Mr. Martin's death, and one subsequently.
Defendant admits execution and delivery to G. H. Martin of the notes sued on, representing part of the purchase price of land he bought from Martin on November 17, 1924, but pleads payment of the notes in full prior to Martin's death, and while he was the holder and owner of same. He avers that he and the deceased made a contract pursuant to which he, defendant, was authorized and empowered to cut, remove, and market all of the merchantable timber from the land aforesaid, and that defendant was entitled to and would be paid 10 per cent. of the value of said timber for his services, and that timber was cut from said land and sold by him for a total sum of $ 3,550, of which amount he was entitled to $ 355, which should have been credited on his notes. He also pleads that he discovered that the title to his land was defective, and that Martin, in keeping with his obligations as warrantor, authorized defendant to cure the defects in said title, and that the expense of this would be credited on his notes; that he paid $ 75 for legal and other assistance in perfecting said title and curing defects therein, and incurred other expenses amounting to $ 24. He alleges that the deceased was due him for commission and expenses, etc., in curing defects in the title to his land, the sum of $ 449, which should have been credited on the notes, and which would have left a balance due him on that account. He avers that he had no final settlement with G. H. Martin, but no demand was ever made on him for payment of the last two notes, for the reason that they had been paid in full and discharged by credits due him arising from the above-named transactions. He prays that plaintiffs take nothing by this suit; that the notes sued on be adjudged to have been paid; and that he have judgment in reconvention for $ 449 against plaintiffs, less the amount of the notes.
There was judgment in the lower court in favor of plaintiffs, in rem, as prayed for. Defendant has appealed.
This is the second time this case has been before this court. See Martin et al. v. Bonnette, 19 La.App. 521, 139 So. 507. We remanded the case heretofore for the purpose of giving defendant opportunity to introduce evidence in support of his plea of payment, which had been excluded by the trial court. The case is now before us after new trial in the court a quo. The only question involved now is that presented by the plea of payment. Defendant carried the burden of establishing this plea. We do not think he has done so.
Defendant's own evidence and letters to G. H. Martin are all we need to consider in resolving this case against him. He testified that the commissions Martin was to pay him for selling his timber were to be imputed to the payment of the last notes due. He paid four notes of $ 105.74 each. He claims commissions of $ 355 due him. Therefore, according to his version of the matter, he paid at least one note when he knew his credits from commissions were amply sufficient t2 o have extinguished it. He also testified that he expended $ 99 for an abstract of title to his land and for expenses incidental to some curative work on the title, and that Mr. Martin agreed to bear this expense and give credit therefor on the notes. We are convinced the abstract was necessary in connection with defendant's application to a loan company to effect a loan against this property, and that in trying to secure the loan he was prompted primarily by the desire to pay Mr. Martin the balance due him. Defendant, in his letter to Mr. Martin, April 17, 1927, states that, "My abstract will cost me $ 75.00," and further says, "As soon as I can get the loan through I will get your money." A loan on the land could not be closed until the Martin mortgage was canceled. This defendant intended to effect from the proceeds of the loan. He does not seriously deny this was his intention; yet he now contends these very notes the contemplated loan was to extinguish were at that time already extinguished in the manner set out in his answer.
Defendant testified...
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