Opinion
No. 19245.
April 23, 1951.
APPEAL FROM FIRST CITY COURT OF NEW ORLEANS, WM. V. SEEBER, J.
James David McNeill, New Orleans, for appellee.
Weiss Weiss and Harold Marx, Jr., all of New Orleans, for appellant.
Plaintiff, Wells Manufacturing Company of New Vienna, Ohio, instituted this suit against defendant, Dr. Charles C. Foti, of this City, who conducts his business under the trade name of National Sales Agency, endeavoring to recover the sum of $147.17 for merchandise sold and delivered to the defendant.
Defendant, in propria persona, answered and generally denied that he was indebted to the plaintiff.
From a judgment in favor of plaintiff and against the defendant in the sum of $36 plaintiff has prosecuted this appeal.
The record reveals that plaintiff, through its office manager, William A. Horton, testified by virtue of a deposition from the records of the company that, according to Invoice Numbers 3361, 4184 and 4335 (dated respectively September 5th, October 24th and October 31st, 1946) plaintiff sold and delivered to the defendant merchandise amounting to the sum of $147.17, less a credit of $48 "covering the return of 12 #300 HS Tool Boxes", valued, according to Invoice No. 4335 at $4 each, leaving a balance due of $99.17. It will be observed, without significance, that plaintiff's petition failed to reflect this credit of $48.
Defendant does not deny that he received the merchandise which is the subject of this litigation, but insists that "all but $36 worth of merchandise was returned."
The only question posed for our consideration by virtue of the pleadings and the testimony adduced herein, is one of fact, and that is whether defendant is indebted to plaintiff in the sum of $36 or in the sum of $99.17.
Defendant, in effect, pleads that merchandise valued at $111.17 was returned to the plaintiff. The record is devoid of any evidence which would substantiate this statement. On the contrary the record reflects a "delivery receipt" of the Baltimore and Ohio Railroad, dated June 12th, 1947, showing that the only merchandise returned by defendant was "twelve tool boxes" which were delivered by the railroad to the consignee thereof, the plaintiff, Wells Manufacturing Company, who acknowledged receipt thereof on June 17th, 1947.
Invoice No. 4335, dated October 31st, 1946, reveals that the "tool boxes" were valued at $4 each and, therefore, the total value of the merchandise returned to plaintiff by the defendant was the sum of $48.
We are of the opinion that the defendant has not sustained the burden of proof resting upon him to establish, by a fair preponderance of the evidence, that merchandise valued at $111.17 was returned by him to the plaintiff, or that "all but $36 worth of merchandise was returned." Accordingly, we are of the opinion that defendant is indebted to the plaintiff in the sum of $99.17.
For the reasons assigned the judgment appealed from is amended by increasing the amount thereof from $36 to $99.17, and, as thus amended, it is affirmed.
Amended and affirmed.