#### BIO-MEDICAL LABORATORIES, INC. v. Robert HARVEY, Dr. Frank M. Chalaire, Medco Management Corporation, Individually and d/b/a Claiborne Medical Center.

No. 8877.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1978.

Rehearing Denied June 14, 1978.

*278Neville M. Landry and Antonio E. Papale, Jr., New Orleans, for plaintiff-appellant.

Dale C. P. Cannizzaro and Robert T. De-Prancesch, New Orleans, for defendant-appellee.

Before STOULIG, BEER and GAUDIN, JJ.

GAUDIN, Judge.

This is a suit on an open account filed by Bio-Medical Laboratories, Inc., against various named defendants.

In support of its claim, Bio-Medical Laboratories produced its credit manager, who testified that the balance due was $8,787.90.

During cross examination of this witness, defendants produced a $250 check, drawn by defendant Medco Management Corporation and payable to Bio-Medical Laboratories. On the front side of the check are the typewritten words “In Pull.”

Over objection, defendants introduced the check and contend that it was tendered as payment in full of the account.

In addition, defendants introduced, also over objection, an undated copy of a letter supposedly sent to Bio-Medical Laboratories’ auditor in which the $250 check is referred to as “full settlement of the matter.”

Plaintiff denied receipt of the document. The author of the letter was not called as a witness, and there was no testimony or evidence showing that the letter had in reality been mailed.

Following trial, a judgment was rendered against the plaintiff, dismissing the suit because “. . . the debt was paid in full.”

Bio-Medical Laboratories bases its appeal on the procedural fact that in none of the answers filed by the defendants was the defense of full or partial compromise or extinguishment of the debt raised.

We agree with the correctness of plaintiff’s position. Code of Civil Procedure Article 1005 reads:

> “The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.” LSA-C.C.P. Art. 1005.

The various answers, generally, denied the petition’s allegations; and none of them was concerned with an affirmative defense of debt reduction or extinguishment. The trial judge should not have considered either the $250 check or the carbon copy of the undated letter.

Accordingly, the judgment appealed from is reversed, and judgment is hereby rendered in favor of Bio-Medical Laboratories, Inc., and against Robert Harvey, Dr. Frank M. Chalaire, Medco Management Corporation, individually and doing business as the Claiborne Medical Center, in the full sum of EIGHT THOUSAND SEVEN HUNDRED EIGHTY-SEVEN AND 90/100 ($8,787.90) DOLLARS plus legal interest from date of judicial demand until paid, and all costs of this proceeding.

*REVERSED.*

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I respectfully concur.

*279The affirmative defense of accord and satisfaction, while not specially pleaded as required by C.C.P. art. 1005, was nonetheless before the court because testimony was admitted — to which no objection was raised — that would set forth this special defense. Failure to object to evidence that would establish an affirmative defense enlarges the pleadings. *Webster v. Rushing,*316 So.2d 111 (La.1975), and *Red Barn Chemicals, Inc. v. Lassalle,*350 So.2d 1315 (La.App.3d Cir. 1977). C.C.P. art. 1154.

A photostatic copy of a check allegedly tendered to plaintiff as payment in full was introduced in evidence without objection and an undated and unsigned letter that allegedly accompanied the document was also read into the record without objection. The letter explained the enclosed check was payment in full. Both the check and the letter were discussed at length before plaintiff’s counsel objected, and his complaint did not concern introduction of evidence to establish an unpleaded affirmative defense. Rather it challenged the competency of the evidence.

The best evidence rule, simply stated, is the requirement that one carrying the burden produce the best proof that the nature of the thing will afford. McCormack Evidence, 2nd Edition, page 559. In this case the original document (the check tendered and negotiated) is not the best evidence; photostatic copies of the bank’s records on which the check was drawn would be. The trial court pointed this out during the course of the trial, noting that the “in full” notation on the face of the check could have been added after the cheek was negotiated. However, the bank records of this transaction would establish whether this verbiage was on the check at the time plaintiff deposited it. The bank records were never produced or filed although the attorney for plaintiff indicated they would be.

The fact of whether the letter was or was not written is a matter of credibility. Since the letter is merely corroborative in nature, it lacks probative value because the bank photostat of the check was never produced.

Therefore, while defendant succeeded in enlarging the pleadings with unobjected to testimony, it nonetheless failed to carry the burden of proving its special defense because the secondary evidence tendered was insufficient without an explanation why the best evidence was not presented at the trial.