Opinion
Nos. 10513, 10514.
January 26, 1966. Rehearing Denied March 1, 1966. On Rehearing April 25, 1966. Writ Refused June 30, 1966.
APPEAL FROM ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF DeSOTO, JOHN S. PICKETT, J.
Dodd, Hirsch, Barker, Avant Wall, Baton Rouge, Gordon B. Golsan, Jr., Colvin Hunter, Mansfield, for appellants.
Clint L. Pierson, Benton Moseley, Fred G. Benton, Sr., Baton Rouge, for appellee.
Before HARDY, GLADNEY and AYRES, JJ.
Mrs. Blanche Revere Long, as testamentary executrix of the succession of Earl Kemp Long, instituted two suits against Frank Matthews and his wife, Ruth Thigpen Matthews, and their son, James Roy Matthews, to recover the sum of $160,000. The alleged indebtedness was evidenced by three instruments or notes in writing, dated June 18, June 12 and June 13, 1960. Suit No. 25,138 (10,514 in this court) sought recovery of $50,000 upon the instrument dated June 18, 1960. In suit No. 25,139 of the district docket (10,513 in this court) recovery of $110,000 was sought under the instruments dated June 12 and June 13, 1960. The petitions in each of the suits were filed August 11, 1961 and each was answered on August 19, 1961.
"6-18-60 We owe Earl Long $50,000.00 — Fifty Thousand dollars — Interest paid for six months, at the end of six months we promise to repay if not start paying interest at 6 (six) percent for which note will be extended for one year.
Ruth Matthews James Roy Matthews"
"6-12-60 We owe Earl Long $46,000.00, Interest paid for six months, at end of six months we promise to repay if not start paying interest at 6 percent for which note will be extended for one year.
Frank Matthews Ruth Matthews"
"6/13/60 We, owe Earl K. Long ($64,000.00) — Sixty Four Thousand Dollars. — Interest paid for Six Months, at end of Six Months We promise to repay, if not to start paying interest @ 6% (Six Percent) for which note will be extended for one year.
Ruth Matthews"
The defenses relied upon were set forth by answers and reconventional demands as hereinafter related. A supplemental and amended answer and reconventional demand was filed December 18, 1961 in suit No. 25,138, and after consolidation of the cases for trial, the defendants, for the purpose of particularizing facts supporting the defenses previously urged, filed on May 6, 1963, an additional supplemental an amended answer and reconventional demand pertinent to each suit.
In suit No. 25,138 the original answer admitted that on June 18, 1960 Ruth Matthews and James Roy Matthews received from Earl K. Long $50,000 not as a loan but for the purpose of holding the same for the accommodation of Long and that the instrument dated June 18, 1960 was signed solely for the purpose of functioning as a receipt. The answer averred that since receiving said money all of it had been returned to Long and the repayment thereof was specially pleaded. In the supplemental and amended answer and reconventional demand filed in this case on December 18, 1961 the defendants averred that on July 27 and August 5, 1959 they advanced and loaned to Earl K. Long $30,000 and $20,000 respectively, which sums were unpaid and owing to them during the period of June 12 through June 18, 1960. Based on these averments compensation and setoff was plead as an affirmative defense.
In suit No. 25,139 the original answer as filed therein was essentially the same as that filed in the other case in that it was admitted by the defendants that all of the money sought to be recovered by plaintiff had been received by defendants but only as an accommodation to Earl K. Long, and that a receipt was given therefor. In No. 25,139, however, the supplemental answer and reconventional demand filed also on December 18, 1961, asserted all of the $110,000 had been returned except the sum of $13,988.28 against which defendants claimed an offset for lumber sold and delivered to Mrs. Blanche Long between January 9 and April 4, 1959, which claim was plead in compensation and reduced the balance remaining due from the defendants to the sum of $4,454.44. This amount was tendered to plaintiff, was refused, and then deposited in the registry of the court.
Appellee in opposing the special defenses of compensation and payment, sought to invoke the application of LSA-R.S. 13:3721 for the purpose of excluding parol evidence if offered for the purpose of proving that the succession of Earl K. Long was indebted or liable to defendants under their plea of compensation in suit No. 25,138 and the pleas of compensation and payment urged in suit No. 25,139. The plaintiff also denies that the alleged remittances were in fact made to Earl K. Long. Objection was also made that if the money which admittedly was received by the defendants constituted a deposit, the plea of compensation is unavailable, and that further, such plea may not be resorted to except when the two debts are equally due and demandable.
The supplemental answer and reconventional demand filed May 6, 1963 was designed to particularize the defense of payment or return of the money as previously set forth in pleadings. Therein, with respect to suit No. 25,139 it was alleged that between July 19 and August 26, 1960, $96,011.72, in ten separate repayments of money, were made to Earl K. Long.
Upon the issues presented, the consolidated cases were tried with the result that in suit No. 25,138 judgment in favor of plaintiff was rendered against Frank Matthews as prayed for and the demands against Mrs. Ruth Thigpen Matthews and James Roy Matthews were dismissed. In suit No. 25,139 judgment in favor of plaintiff and against Frank Matthews and Mrs. Ruth Thigpen Matthews was rendered for the principal sum of $34,988.28. Appeals have been perfected by Frank Matthews in case No. 10,514 and by Frank Matthews and Mrs. Ruth Matthews in case No. 10,513. After the case was docketed in this court the plaintiff-appellee in No. 10,513 answered the appeal asking that the judgment be increased to the sum of $110,000.
During the trial and after plaintiff had rested her case appellants offered evidence to establish repayment, whereupon plaintiff objected to such evidence on the ground that the defenses were not supported by specific allegations or particularizations as to when, where, and how made, and defendants then offered to amend and particularize the facts supporting the defenses. The court, over the objection of counsel for plaintiff, and acting under the provisions of LSA-C.C.P. Art. 1154 allowed the amendment to be filed on May 6, 1963, the effect of which was to particularize the general plea of repayment.
The first demand made for the recognition of the $50,000 debt allegedly due defendants was made in the reconventional demand filed December 18, 1961. As this was more than one year from the date of the death of the deceased, the applicability of LSA-R.S. 13:3721, et seq. is urged as a bar to the admissibility of parol evidence to establish a debt or liability of the deceased for loans or advances of $30,000 and $20,000 set forth in defendants' plea of compensation.
The pertinent provisions of this Statute read:
(3721)
"Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
* * * * * *
"The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder. As amended Acts 1960, No. 32, § 1."
(3722)
"When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances. As amended Acts 1960, No. 32, § 1."
Defendants' answers in each suit filed on August 19, 1960 contained only a general plea of repayment of the money admittedly received by the defendants without further specification.
After defendants' pleadings, which were denominated in each instance a "Supplemental and Amended Answer and Reconventional Demand", were filed more than one year after the death of Earl K. Long on September 5, 1960, it became important to determine if the effect of such pleadings relate back to the date of the filing of the answers on August 19, 1961. The resolution of this issue rests upon the construction given LSA-C.C.P. Arts. 1154 and 1155. Also we observe that the reconventional demand, though an incidental demand, must conform to the requirements of LSA-C.C.P. 891 prescribing the form of a petition on a principal demand.
The third sentence of Art. 1154 is pertinent.
It reads:
"* * * If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. * * *"
With respect to the quotation the official comment states:
"* * * But the law is changed under the third sentence of the above article which authorizes the trial judge to permit amendments, even on the trial of the case, so as to plead the material facts supporting an affirmative defense pleaded only generally or as legal conclusions in the original answer." Emphasis added.
Article 1155 states:
"The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein." Emphasis added.
The two sums allegedly advanced to Governor Long on July 27 and August 5, 1959 can under no circumstances be considered as a payment or repayment as prescribed by Civil Code Articles applicable to the defense of payment. These codal articles 2131, et seq., are peculiarly applicable to a transaction between an obligor or debtor and an obligee or creditor and every payment presupposes a debt. LSA-C.C. Arts. 2131, 2132 and 2133. When Governor Long allegedly became indebted to Matthews in 1959 the advances allegedly were made by Matthews at a time when Long was not in debt to Matthews.
For appellants to collect or receive credit for the $50,000 advanced it was necessary that appellants establish the debt or liability of the estate of Earl K. Long before said amount could support the plea of compensation. Compensation occurs when two people are at one time both the creditor and debtor of one another. For this situation to exist there must be at least two obligations, to-wit: each person must be indebted to the other. Therefore, in a defense of compensation the defendant must prove the indebtedness of the plaintiff, notwithstanding that compensation occurs by operation of law when mutual indebtedness exists. To attempt to prove this indebtedness by means of parol evidence when the deceased-debtor has been dead for more than a year, places the defendant-obligee within the purview of LSA-R.S. 13:3721 for he must establish a "debt or liability" as the foundation for his defense of compensation.
The plea of compensation as urged in defendants' reconventional demand, first filed on December 18, 1961, presented a new and separate demand not related to or connected with the general plea of repayment as stated in the original answer filed August 19, 1961, and therefore, the pleading of December 18, 1961 does not relate back to the filing of the original answer. With this conclusion we hold that parol evidence was inadmissible and the plea of compensation is denied.
The appellee has set forth other objections to the allowance of the plea of compensation. The first of these is that compensation does not take place when either of the debts is a demand of restitution of a deposit or loan for use. LSA-C.C. Art. 2210(2). This objection seems to have merit because the relevant facts indicate that Earl K. Long in delivering $160,000 to the defendants in reality made a deposit from which he withdrew at his will. The trial judge also held, and we think correctly, the plea is unavailing to defendants in suit No. 25,138 for at the time the compensation would have taken place defendants' obligations had not matured and thus the two debts were not equally due or demandable, as required by Civil Code Art. 2209.
C.C. Art. 2209 states:
"Compensation takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. The days of grace are no obstacle to the compensation."
Defendants' plea of compensation having failed, the judgment as rendered by the trial court in favor of plaintiff and against the defendant, Frank Matthews, in suit No. 25,138 for $50,000 with six per cent interest per annum thereon from December 18, 1961 until paid will be affirmed at appellants' cost.
Some insight into the traits of character and the concerns of Earl K. Long, as evidenced in the record, may be conducive to a better understanding of the unusual dealings of the individuals involved. Governor Long's term of office ended during May, 1960, and shortly thereafter he entered upon a campaign in the Democratic Primaries for the election of congressman from the Eighth Congressional District. Two days prior to August 27, 1960, election day for the Second Primary, he suffered a severe heart attack from which he died on September 5, 1960. In June of 1959 he initiated a suit to dissolve his marriage of long standing and an injunction issued from this judicial proceeding which prohibited him from disposing of community funds. During this period the Federal Revenue Service was actively engaged in an investigation of his affairs. Adding to these worries were stresses and strains from ill health, and a disturbing shortage of campaign contributions for his election to an office which he was determined to win whatever the cost. Frank Matthews was a trusted friend of long standing and one who had helped him in his political ventures. The $160,000 placed with Matthews was delivered in cash from the several places it had been deposited. Of some significance, it seems to us, is the manner in which Earl Long felt free to draw upon the money in the hands of Matthews. Whether or not it was a loan as claimed by appellee, or a deposit for accommodation as appellants assert, it appears clear that much of it was needed as campaign expenses, and Earl Long drew heavily upon it shortly after it was delivered to Matthews.
Turning our attention to the defenses urged in suit No. 25,139, we note that these are predicated first upon a plea of payment in which it is asserted that the sum of $96,011.70 was repaid on ten separate occasions between July 19 and August 26, 1960 and second, a plea of compensation for the sum of $9,533.84 is claimed as an offset for lumber sold Mrs. Blanche Long between January 9 and April 4, 1959.
In specification of the remittances in support of the plea of payment, the defendants aver:
(1) That on or about July 9, 1960, the sum of $5,000 in cash was delivered by Willis Findley and Ellis Spears to Earl Kemp Long at Pleasant Hill, Louisiana, for and on behalf of Frank Matthews.
(2) That on or about July 21, 1960, the sum of $2,011.72 was paid to Earl K. Long by Frank Matthews by Western Union Money order sent to the said Earl Kemp Long, c/o Rapides Bank and Trust Company, Alexandria, Louisiana, and deposited to "Earl K. Long Political Campaign Account."
(3) That on or about July 21, 1960, the sum of $40,000 in cash was repaid to the said Earl K. Long by Frank Matthews in person to Earl K. Long in cash at Winnfield, Louisiana.
(4) That on or about August 1, 1960, the sum of $5,000 in cash was paid by Frank Matthews to Earl K. Long, which said money was delivered by Willis Findley for and on behalf of Frank Matthews to Jay Chevalier for and on the account of Earl K. Long and for which a receipt was given by the said Jay Chevalier, this payment being made at Mansfield, Louisiana.
(5) That on about August 11, 1960, the sum of $6,000 in cash was paid by Frank Matthews to Earl K. Long, the said payment being made at Chestnut, Louisiana, by Ellis Spears and James Roy Matthews, for and on behalf of Frank Matthews and delivered to Earl Kemp Long in person.
(6) That on or about August 13, 1960, the sum of $1,000 was repaid to Earl Kemp Long by Frank Matthews by sending a Western Union money order to Earl Kemp Long in said amount at Baton Rouge, Louisiana.
(7) That on or about August 19, 1960, the sum of $9,000 in cash was repaid by Frank Matthews to Earl Kemp Long, said sum of cash money being delivered by Willis Findley and James Roy Matthews to Earl Kemp Long at Robeline, Louisiana, delivery of said money being made directly to said Long in person.
(8) That on or about August 20, 1960, the sum of $6,000 in cash was repaid to Earl K. Long by Frank Matthews by delivery of said sum of cash to said Earl K. Long in person by Joe T. Cawthorn for and on behalf of Frank Matthews, delivery by said Cawthron to said Long having been made at or near Marksville, Louisiana.
(9) That on or about August 26, 1960, the sum of $12,000 in cash was repaid by Frank Matthews to Earl Kemp Long, said sum of money being delivered by James Roy Matthews and Ellis Spears and on behalf of Frank Matthews to Earl Kemp Long in person at Goldonna, Louisiana.
(10) That on or about August 25, 1960, the sum of $10,000 was repaid by Frank Matthews to Earl Kemp Long, said sum of money being delivered in cash personally by Frank Matthews to Earl Kemp Long at Campti, Louisiana.
In suit No. 25,138 we held that the filing of the special plea of compensation on December 18, 1961, more than one year after the death of the decedent, had no retroactive effect and therefore was subject to the provisions of LSA-R.S. 13:3721. This ruling was predicated upon the want of connexity between the special plea of compensation and the general plea of payment as set forth in the original answer. As a consequence of this ruling the admission of parol evidence for the purpose of establishing the plea of compensation was barred and forasmuch as proof by other evidence was not available, the plea of compensation failed. In suit No. 25,139, now under consideration, the defense thereto is predicated on a plea of payment which though pleaded in general terms in the original answer was first set forth with specification in a pleading filed on May 6, 1963. In our opinion the pleading filed May 6, 1963 for the purpose of particularizing the payments allegedly made is germane and connected with the general plea of payment as made in the original answer. Our holding, therefore, is that defendants' plea of payment as supplemented and particularized by the pleading filed on May 6, 1963 must be considered as having been properly allowed.
Counsel for appellants argue with merit that parol evidence may be resorted to when pleaded in defense for the purpose of showing payment as LSA-R.S. 13:3721, et seq., is inapposite. For in such a case parol evidence is not offered for the purpose of proving a debt or liability of the deceased, but only for the purpose of evidencing the discharge of an obligation. Young's Heirs v. Veillon, La. App., 192 So. 545 (1st Cir. 1939) sustains the legal principle relied upon and we hold that LSA-R.S. 13:3721 has no application to the plea of payment tendered as a defense herein.
The written opinion of the trial judge reveals that he made a painstaking and thorough examination of the evidence adduced in support of defendants' plea of payment which consisted largely of oral testimony. This necessitated the examination of hundreds of pages of a multi-volume record. His forty-six page opinion accurately sets forth the material facts and his findings and rulings. With respect to items numbered (1) through (10) as set forth in defendants' plea of payment as quoted above, the judge allowed items numbered (1) through (8) as sufficiently proven, and disallowed items numbered (9) and (10) except the sum of $1,000 as evidenced by a check.
We have carefully examined the entire record and weighed the evidence we considered material and proceed to record concisely our findings. Noteworthy is the fact that defendants' evidence with respect to items (1) through (8) as presented by the defendants was virtually uncontradicted. We do not find this to be true, however, with respect to items numbered (9) and (10). We have endeavored to record the strongest evidence presented, but with brevity. In reviewing the evidence in respect to each of the 10 items of payment, we have changed the order thereof only to the extent of transposing items 9 and 10:
(1) $5,000 is represented as having been personally delivered to Earl Long at Pleasant Hill on July 9, 1960. The testimony of Willis Findley, bookkeeper for Matthews, was that he withdrew $3,000 from the office safe and cashed check No. 15,345 [offered in evidence] for $2,000 drawn to cash. The $5,000 in cash obtained thereby was delivered by Findley and Ellis Spears at Pleasant Hill on July 9. Findley's testimony is consistent with that of Ellis Spears and corroborating circumstances are disclosed by the testimony of Waddy Assef, J. D. Harkins and Robert Gentry.
(2) $2,000 was sent by Frank Matthews on July 21, 1960 by Western Union wire to the Rapides Bank and Trust Company for Earl Long. Willis W. Findley testified to the delivery of check No. 15,528 [offered in evidence] for $2,011.72 drawn to the order of Western Union. The sum of $11.72 represented Western Union charges.
(3) $40,000 personally delivered by Frank Matthews to Earl Long at his farm in Winnfield on July 21, 1960. The testimony of Frank Matthews is in part substantiated by that of Willis W. Findley, who testified he made up a package of $40,000 in cash secured from a $2,000 check, No. 15,531 [offered in evidence] which was cashed and $38,000 in cash withdrawn from the office safe. The cash from the safe previously had been withdrawn from a lock box in the First National Bank in Mansfield. The testimony of Findley and Matthews was substantiated in some respects by the testimony of J. D. Harkins.
(4) $5,000 delivered to Jay Chevalier for Earl Long on August 1, 1960 at Matthews' office in Mansfield. Chevalier signed a receipt for $5,000 in cash which was typed by Willis Findley and signed by Chevalier. This payment was further supported by check No. 15,684 for $5,000 which check was offered in evidence.
(5) $6,000 in cash personally delivered to Earl Long on August 11, 1960 at Chestnut by Ellis Spears and James Roy Matthews. The delivery of this money was further corroborated by the testimony of Frank Matthews, Willis W. Findley, J. D. Harkins and Robert Gentry.
(6) $1,000 represented by Western Union wire to Western Union at Baton Rouge. A copy of the wire and check No. 15,897 drawn payable to Ruth Matthews and by her endorsed to Western Union were filed in evidence.
(7) $9,000 in cash delivered to Earl Long at Robeline on August 19, 1960. Evidence of this payment is supported by the testimony of James Roy Matthews and Willis Findley who testified they personally made delivery of the cash to Earl Long. Corroborating circumstances are found in the testimony of Willis W. Findley who made up the package of money from cash withdrawn from the office safe. Other corroborating circumstances were related in testimony by Robert Gentry.
(8) $6,000 in cash personally delivered by Joe Cawthorn to Earl Long near Goodeaux. Cawthorn testified Matthews met Cawthorn on the road and gave him the money which the latter in turn delivered to Earl Long. Willis W. Findley said that the $6,000 in cash was made up by check No. 15,978 [offered in evidence] for $5,000 and $1,000 cash withdrawn from the office safe. Cawthorn stated that Earl Long told him that there was no need to count it as it belonged to him and he needed it to buy support in Avoylles Parish.
(9) $10,000 in cash personally delivered by Frank Matthews to Earl Long at Campti on August 25, 1960. Matthews testified the amount was delivered to Long at Campti in the presence of "Red" Harkins, and Jay Chevalier. The testimony of Frank Matthews is unsupported by any substantial testimony. Willis W. Findley testified the books did not show any entry on August 25, 1960, although they did show a cash withdrawal on August 28, 1960 of $10,000 charged against Long's account. Findley testified this sum was given by him to Matthews. Matthews testified that the amount was taken from his safe without cashing a check. In rebuttal W. K. Brown and Ellis Littleton testified Earl Long spoke on Thursday, August 25, 1960 in Bunkie, Evergreen, LeCompte and Glenmora where Long became ill between 8 and 8:30 P.M. and was driven by Ellis Littleton to the Bentley Hotel. The trial judge was convinced that Earl K. Long was not in Campti on August 25, 1960, but was campaigning in another portion of the district and that delivery of the money was not proven to a legal certainty.
(10) $12,000 in cash delivered by James Roy Matthews and Ellis Spears to Earl K. Long personally at Goldonna on August 26, 1960. Frank Matthews testified this amount of cash was taken from a safe and represented part of a loan to Matthews from T. R. Gafford. Findley testified to a cash withdrawal of $11,000 from the office safe and $1,000 from check No. 16,033 [offered in evidence]. The money was turned over to Matthews by Findley. James Roy Matthews and Ellis Spears testified they took the money to Goldonna and personally handed the package to Earl Long. Neither witness was sure of the date and fixed it as the latter part of August. J. D. Harkins testified he was not sure of the date but he saw James Roy Matthews and Ellis Spears in Goldonna after Long had told him he was looking for someone from Frank Matthews. In rebutting this testimony Dr. Robert U. Parrott testified that he first saw Long in the Bentley Hotel about 6:30 on August 26 and learned he had been in the hotel room since at least noon of that day. At the time he was in serious condition from a state of shock and almost without blood pressure or pulse beat. Joe J. Spera, bell captain at the hotel testified he was in and out of Governor Long's suite on Friday, August 26th; that Long was sick and so far as he knew did not leave his room that day. It was conclusively established Earl Long did not speak at Goldonna on that date. The trial court disallowed this claim as being unproven except in the amount of $1,000, a check dated August 26, 1960, and deposited in the Rapides Bank and Trust Company to Earl K. Long's political fund.
Defendants have also tendered, through a plea of compensation, evidence of a $9,533.84 offset against appellee's claim for lumber allegedly supplied to Mrs. Blanche Long to be used in the building of a house at Baton Rouge. Appellants sought to establish this claim primarily through the oral testimony of Frank Matthews although some invoices were filed in evidence. As parol evidence was necessary to establish proof of a debt or a liability first demanded more than a year after the death of the deceased debtor, such proof is barred by LSA-R.S. 13:3721. The debt was assertedly incurred in January, 1959. Accordingly, defendants' plea of compensation must fail.
In weighing the evidence we are met with some inconsistencies and uncertainties in the testimony but this should be expected considering the number of transactions and people involved. Our finding is that these irregularities are not sufficient to overbalance the proof submitted by the defendants with respect to items numbered (1) through (8). We find all of these payments were substantiated by a preponderance of the evidence. Manifestly, the decision of the trial judge and of this court must rest heavily upon the credibility of the witnesses who testified as to these sundry transactions. It is our duty to accord high respect for the findings by the trier of facts forasmuch as he is accorded the better opportunity to determine the truthfulness of the witnesses who appeared in his presence. After our examination of the evidence, we were seriously concerned with the question of whether or not payments made by Matthews and deposited to the political fund of Earl K. Long constituted gifts by Matthews or payments to be credited against the amount due by Matthews. In view of a serious need for political funds as hereinabove noted, and in the absence of other evidence, we regard these remittances as payments for the reason that we believe Earl Long directed the manner in which they were forwarded and were not voluntary donations by Matthews. For these reasons we hold that the trial judge was correct in his findings with respect to items numbered (1) through (8). We also approve of his findings which disallowed as payments the amounts claimed in items numbered (9) and (10) with the exception of $1,000. The effect of our holdings is to affirm without exceptions, the judgments as decided by the trial court.
It follows, therefore, that the judgment rendered by the trial court in case No. 25,139 [10,513 on the docket of this court] should be, and is hereby affirmed at appellants' cost.
ON REHEARING OF CASE NO. 10513
Primarily concerned on this rehearing is a question of the sufficiency of the evidence appertaining to certain alleged payments claimed as credits on the obligations herein sued upon. Ultimately, the question to be determined is whether or not defendants have established these payments by a reasonable preponderance of the evidence. Inasmuch as defendants have admitted the execution of the obligations sued upon and the receipt of the principal sums denominated therein the burden is upon them to establish to a legal certainty and by a clear preponderance of the evidence their exoneration from their obligations.
The ten payments upon which defendants rely are numbered 1 through 10 and are identified as to dates and amounts in our original opinion. Those items numbered 9 and 10, allegedly representing payments of $12,000 and $10,000, respectively, were, except as to $1,000 thereof in the form of a check, disallowed, while those numbered 1-8, inclusive, were allowed as credits. The propriety of this allowance constitutes the subject matter for reconsideration. While plaintiff's complaints relate to the allowance of all the credits enumerated under Items 1-8, inclusive, special emphasis is placed upon Items 1, 3, 4, 5, and 7.
From our reconsideration of the record, we continue in the opinion that credit should be allowed for Items 2, 6, and 8, and for $1,000 of the amount claimed under Item 10. With reference to Item 2, it may be pointed out that $2,000 was transmitted by Western Union to the Rapides Bank and Trust Company, Alexandria, Louisiana, at a cost of $11.72, and that under Item 6 a similar remittance of $1,000 was made to Earl K. Long at Baton Rouge. We find no firm, substantial basis or reason under the testimony of Joe T. Cawthorn and Joseph A. Sims for the disallowance of a credit of $6,000 referred to in Item 8, since it appears this remittance came into Long's possession. Of the remittance claimed under Item 10, $1,000 was shown to have been by check deposited to Long's political fund in the Rapides Bank and Trust Company.
While there is a possibility that the amounts abovementioned constituted political contributions to Long's congressional campaign, which was then under way, and to which the named defendant testified he generously contributed, defendants nevertheless assert these particular sums were intended as payments upon their obligations. Under the aforesaid statement of facts, it is made to appear that, since Long received the benefit of these remittances, credit should be allowed the defendants therefor, particularly since there was no positive proof they were not intended as payments.
With reference to the testimony concerning these alleged credits, particularly in regard to those remaining for discussion, plaintiff would invoke the principle, or maxim, "falsus in uno, falsus in omnibus," as to defendant and his witnesses. This principle was held to apply where a witness was found to have testified untruthfully to some phases of a case, and, as a consequence, it was said no part of his statements was entitled to credence. Dixie Homestead Ass'n v. Schmitt, 181 So. 218, La. App., Orleans 1938. See, also, Wheeler v. Turlich, 176 La. 301, 145 So. 546 (1933); Lamison v. Yazoo M. V. R. Co., 173 So. 462, La. App., Orleans 1937; Wyatt v. Consolidated Underwriters, 98 So.2d 537, La. App., 2d Cir. 1957.
That we give effect to this principle is urged upon a basis of our findings as to defendant Matthews' testimony in the case of Barrett v. Matthews, 138 So.2d 151, La. App., 2d Cir. 1962, and on the findings of not only the trial court but of this court in the instant case with reference to the alleged credits listed as Item 9 and $11,000 of Item 10. The trial court found, and in those findings we concurred, that these alleged payments purportedly made at Campti on August 25 or 28, 1960, and at Goldonna August 26, 1960, could not have been made personally to Earl K. Long, as testified by Frank Matthews, James Roy Matthews, and Ellis Spears, and whose testimony, it was contended, was corroborated by that of Willis W. Findley and J. D. Harkins, as Long was not present at these locations at the times specified.
In this connection it may be pointed out that Findley, Matthews' bookkeeper, was emphatic in his testimony, by deposition, that he prepared a $10,000 cash withdrawal; that he delivered the money to Matthews and posted the appropriate entries in Matthews' records on August 28, 1960. Matthews testified that he made personal delivery of this sum to Long at Campti on August 25, 1960, and sent James Roy Matthews, his son, and Ellis Spears, his woods superintendent, with $11,000 in cash to Long in Goldonna on August 26, 1960. During the last week of the congressional campaign, preceding the second primary on August 27, 1960, Long was engaged exclusively within the southern portion of the district in Avoyelles and Rapides parishes south of Alexandria; he was, in fact, in those parishes where, in a final night engagement on August 25, 1960, at Glenmora, he became ill. Thereafter, he was immediately returned to his suite at the Bentley Hotel in Alexandria, where he remained until the election returns were in on the night of Saturday, August 27, 1960. He was then transferred to the Baptist Hospital in that city where he was confined and continued under treatment until the day of his demise September 5, 1960.
For the aforesaid reasons, we are of the opinion that the principle previously mentioned should be given effect in the instant case, at least, to the extent of requiring that testimony of the witnesses be corroborated.
Under Item 1, it is represented that $5,000 was personally delivered to Long at Pleasant Hill on July 9, 1960. Findley testified to drawing a check on that occasion for $2,000 which he cashed and supplemented with $3,000 in cash from his employer's safe and thereby made up a package containing $5,000 which he personally delivered to Long at Pleasant Hill. Only Findley testified as to the contents of the package. This testimony does not meet the requirements of proof.
In connection with the credit claimed as Item 3, which concerns the alleged delivery of $40,000 in currency personally by Matthews to Long at the latter's farm at Winnfield on July 21, 1960, Matthews and Findley were the only ones who testified as having any direct knowledge involving this transaction. Findley testified he prepared the package by obtaining $38,000 in cash from Matthews' safe and by cashing a $2,000 check. This, he claims to have delivered to Matthews, who testified that he delivered it to Long in person with no one else present. Corroboration was sought through testimony of Long's former chauffeur and a former supporter as to purported admissions of Long. Concededly, such testimony is of the weakest character and, under the circumstances disclosed here, is entitled to little, if any, consideration.
However, as to the $5,000 claimed as a credit under Item 4, it appears this claim must be disallowed, not necessarily and exclusively because of the testimony, which creates serious doubt as to the reality of this transaction, but because the remittance, if made as claimed, was made to Jay Chevallier who was not shown to have been authorized to receive such payment. The person to whom payment of an obligation may be made is the creditor himself or someone having the power from him to receive it, or one who is authorized by court or by law to receive payment for him (LSA-C.C. Art. 2140). The record is void of any proof that Long either received, ratified, or profited by this alleged payment.
Item 5 relates to an alleged payment of $6,000 in cash purportedly made to Governor Long at Chestnut on August 11, 1960, by James Roy Matthews and Ellis Spears. Findley prepared this package, also, which he testified he gave to either Mr. or Mrs. Frank Matthews and presumably for the account of Long. On August 11, 1960, Findley, so he said, cashed a check for $4,000 and obtained $2,000 from defendant's safe to make up the total alleged payment. James Roy Matthews testified to delivery of the package on the aforesaid date. In addition to Spears, those offering testimony to support this claim were J. D. Harkins and Robert Gentry, who testified Matthews handed a package to Long, although they knew nothing of its contents. James Roy Matthews testified, however, that, on that occasion, he saw President John S. Kyser and Dean Sylvan W. Nelken, of Northwestern State College, at the Chestnut rally and talked to both of them. Both Kyser and Nelken denied seeing or talking to Matthews on this occasion. Moreover, the record establishes that the summer session of the college closed on August 6th and that Dr. and Mrs. Kyser left immediately for Chicago, where, on August 9, 1960, they departed by Pan-American plane for Europe where they were on vacation for three weeks.
The claim of a credit of $9,000 under Item 7 is supported only by the testimony of Findley and James Roy Matthews. Findley testified that on August 19, 1960, at the request of defendant Matthews, he counted out $9,000 in cash from his employer's safe, and that he, accompanied by James Roy Matthews, handed this package to Long at Robeline. James Roy Matthews did not claim to know what was in the package. Findley's testimony as to this item was uncorroborated; hence, the proof offered was insufficient.
The testimony with reference to the alleged payments, in many respects, is not only vague but inconsistent and contradictory. For instance, defendant Matthews, in attempting to account for his possession of the cash which made up these alleged payments, testified that he had this cash in his safe; that he obtained it from his lockbox in a bank, whereas an official of one of the two banks at defendants' domicile testified defendants had never had a lockbox in his bank (no one was called to testify that they had a lockbox at the other bank); that various checks were cashed, and, finally, that he borrowed money with which to make these payments. Findley testified that Matthews borrowed $41,000, on one occasion, and, soon thereafter, $20,000 from T. R. Gafford. Matthews testified that he first borrowed $40,000 from Gafford and later, $25,000 or $30,000. Why it was necessary, with all this cash on hand and in boxes, to identify these purported payments with checks drawn for smaller amounts is not explained.
In none of these instances, was there any substantial corroboration of either the testimony of Frank Matthews or of Findley, his bookkeeper, and their testimony varied in material particulars such as the make up of the alleged remittance on August 28, 1960, when Long was seriously ill and undergoing treatment in the hospital. Findley was adamant in his testimony that the remittance was prepared on August 28, 1960, as his bookkeeping entries indicated. Matthews would have the court believe delivery was made prior thereto and before Long entered the hospital. Nevertheless, the date selected, August 25, 1960, was also an impossible date as Long was at neither Goldonna nor Campti on that date.
Mrs. Lucille Long Hunt, from whose possession $50,000 was obtained for delivery to the defendants, soon after her brother's death, in company with an older sister, Mrs. Clara Knott, interviewed Mrs. Matthews and Matthews' bookkeeper, Findley, with reference to the indebtedness due her brother. According to Mrs. Hunt's testimony, Mrs. Matthews, who is a defendant in this case, readily admitted the indebtedness and that it was due in its entirety — no credits were claimed. With this, it was testified, Findley agreed. Nevertheless, Findley was not produced as a witness, notwithstanding plaintiff's counsel's insistence and defendants' counsel's assurance he would be produced at the trial. Further, it should be noted that, near the conclusion of the trial, Mrs. Matthews became ill and, on the advice of her physician, did not testify.
It may be also noted that when these funds were delivered by Long to the Matthews, $46,000 under date of June 12, 1960, $64,000 under date of June 13, 1960, and $50,000 under date of June 18, 1960, Long's congressional campaign was well under way. Nevertheless, under the instruments executed by defendants, the maturity of their obligations was at least six months away. These facts are inconsistent with any intention on the part of Long to use those funds in his campaign.
We may observe, too, that when in November, 1960, plaintiff and counsel called on the defendants with regard to this indebtedness, defendant Matthews and Findley left for Many. After the lapse of a few hours, Matthews returned, but, under the pretense of the absence of his bookkeeper, refused plaintiff an inspection of his records, but promised a statement of the credits claimed. This, however, was never furnished despite at least two written requests therefor.
While the relationship between Long and Matthews, as concerns this transaction, was unorthodox, influenced, no doubt, by their personal and political friendship, it must nevertheless be observed that when Matthews obtained the loans he, his wife, and son gave their notes in evidence thereof. However, when payments were allegedly made almost entirely in cash and in sums of as much as $40,000, no receipt or other record of payment was exacted. Such procedure is not in accord with usual business practices and is inconceivable where payments in cash involve such large amounts.
From our reconsideration of the record, we find no substantial corroboration of defendants' testimony. The record is unconvincing as to the credits which we have disapproved. The burden being on the defendants to establish by clear, positive, and convincing evidence their release or exoneration from their obligations, the conclusion is inescapable that they have not borne this burden.
Defendants' application for a rehearing directed to that part of our former decree disallowing certain credits upon the obligations sued upon having been overruled, they are entitled, if they now so desire, to make a second application so far as the credits originally allowed are concerned, which, on this rehearing, have been disallowed.
Hence, the judgment appealed is now amended by increasing the principal award to the sum of $99,998.28 and, as thus amended, it is affirmed at defendants-appellants' cost.
Leave is granted to the defendants to apply for a second rehearing as to the credits disallowed herein.
Amended and affirmed.
GLADNEY, J., dissents in part, adhering to the views expressed in the original opinion.