#### SOUTHERN DISCOUNT COMPANY, Inc. v. Joseph S. NEWBROUGH, Jr.

No. 3972.

Court of Appeal of Louisiana, Fourth Circuit.

June 1, 1970.

Chauvin, Newman & Duggins, Ronald H. Newman, New Orleans, for Southern Discount Co., Inc., plaintiff-appellee, and for Barnett Enterprises, Inc., third-party defendant-appellee.

Carl O. Brown, Jr., New Orleans, for Joseph S. Newbrough, Jr., defendant and third-party plaintiff-appellant.

Before SAMUEL, REDMANN and LE SUEUR, JJ.

LE SUEUR, Judge.

Plaintiff sues for the balance due on a note given in payment for certain articles of furniture purchased by defendant from third party defendant, Barnett Enterprises, Inc. The trial court granted judgment as prayed for by plaintiff and concurrently dismissed the third party demand. The defendant has appealed.

The authenticity of the note is not challenged and the defendant resists payment solely upon the allegation that there was a failure in consideration, or in the cause of the agreement, which supports the note. Inasmuch as Southern Discount Company, Inc. is, by stipulation, not a holder in due course (although it is a holder), it is subject to this kind of defense. LSA-R.S. 7:28; Paletou v. Sobel, La.App., 185 So.2d 95 (4th Cir. 1966).

Mr. Newbrough alleges that he went to Barnett’s in response to an advertisement and ordered the specific merchandise under promotion. He further contends that Barnett’s delivered goods other than those for which he bargained and that these were defective.

Southern and Barnett concede none of this. Rather, they maintain that Mr. New-brough received the articles which he purchased and that while Mr. Newbrough had complaints, these were rectified at some effort, including the delivery and installation of a new headboard for a bed. After the headboard exchange, the store contends that Mr. Newbrough expressed his satisfaction with the furnishings and tendered a check (twice refused by his bank for insufficient funds) in payment.

*274The facts advanced by the parties cannot be reconciled. Rather, the trial judge was forced to choose between them, a choice which rests, intrinsically, upon credibility evaluations. Such evaluations lie uniquely within the discretion of the trier of fact and we see no indicia of manifest error in the exercise of that discretion by the court below.

We note, however, that in the judgment the trial court permitted the sum of $4.50 to be added to the amount due as “service charges”. The note between Barnett and Mr. Newbrough makes no provision for such charges and, indeed, could not do so inasmuch as the note is already drawn for 8% per annum, the maximum applicable rate permitted by law.

Therefore, the judgment is amended to reduce the principal sum awarded to $150.-00, and, as amended, affirmed. All costs in both courts are to be paid by appellant.

Amended and, as amended, affirmed.

REDMANN, Judge

(dissenting).

I believe this is not a case of conflict in testimony. Plaintiff’s witness had little knowledge of defendant’s difficulties with the merchandise purchased, and certainly does not contradict defendant’s testimony that the metal bed frame shortly broke and defendant was told by the vendor’s employee it would have to be welded or replaced. Even at trial, defendaiit testified, the frame was still in the condition of having to be supported on bricks and held together with wire.

Defendant’s expression of being satisfied related to the replaced headboard and not to the frame, and the check he gave, he testified, was a postdated one at the time he was hoping to get his cracked headboard replaced; he gave the check because the vendor refused to do anything about his situation unless he made some further “payment”.

I do not consider the sale of a bed like a building contract, where only substantial performance need be shown for recovery, and defendant would have the burden of showing the cost of correcting defects.

Here the vendor sold for one indivisible price a complete bed (except the headboard) and delivered a defective bed which it declined to repair. Until the vendor satisfactorily repairs or replaces the bedframe it should not recover; or at most it should show the price of a new frame and reduce its claim by that amount. (The headboard has been more than paid for by the two payments defendant made.)

In my opinion the judgment appealed from should be reversed.