#### Jack SCIORTINO v. Mrs. Judith A. LEACH.

No. 4101.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 7, 1970.

Rehearing Denied Jan. 11, 1971.

Charles W. Fasterling, New Orleans, for plaintiff-appellant.

Judith A. Leach, defendant-appellee, absent and unrepresented.

Before CHASEZ, REDMANN and SWIFT, JJ.

REDMANN, Judge.

Plaintiff appeals from a judgment dismissing his suit on a promissory note for $425.00.

Plaintiff testified the note was given by defendant for a course in beauty culture training at the International Hair Design Institute, owned and operated by plaintiff.

While there are other questionable circumstances present, we believe this appeal is disposed of by the uncontradicted evidence of the failure of plaintiff to maintain school records required to qualify defendant to take the State Board of Cosmetology certificate examination. The whole purpose of vocational training is to become able to work in that vocation, and to do so defendant would have to obtain a state license or certificate, R.S. 37:500. Defendant can never be licensed because, according to testimony (reproduced as an appendix) of a member of the Board, plaintiff was unable to produce the “sign in, sign out” student attendance books required by the Board (presumably under its rule-making power, R.S. 37:498) to verify completion of the required course of study. The Board member testified defendant *270could not be allowed to take the examination for the required certificate.

Thus, even assuming all other disputed questions could be resolved in plaintiff’s favor, we believe that plaintiff’s failure to keep records, which he knew were required for defendant to accomplish the purpose of the course the note was given for, constitutes a complete failure of consideration and a complete defense to the suit on the note. R.S. 7:28.

The judgment appealed from is affirmed at plaintiff’s cost.

Affirmed.

APPENDIX

BY MR. PRENDERGAST [then defendant’s counsel] :

Q Would you state your name, please?

A Joel Alice Mumphrey.

Q What is your occupation?

A I am district board member for the Louisiana State Board of Cosmetology.

Q In this capacity, what are your functions, what are you charged with doing ?

A I am charged with the licensing of new salons, schools, giving examinations, and arbitrating between beauticians, school owners, students, this type of thing.

Q Are you familiar with the International Hair Design Institute run by Mr. Jack Sciortino ?

A Yes.

Q What has been your experience with this institution?

MR. FASTERLING:

I object. This line of questioning has no bearing for which the purpose of the note was given.

THE COURT:

Objection overruled. This is the evidence that I have been suggesting that you bring in. This is solid evidence.

MR. PRENDERGAST:

Will you answer the question, please ?

THE WITNESS:

Would you restate the question, please, sir?

(REPORTER READS QUESTION BACK)

THE WITNESS:

My experience with the International Hair Design is practically the same with all schools with the exception we have numerous cases of this type that constantly keeps us working with the students who say hours were sent in that she never went to school, and these type of notes come up. The board is not a collection agency. We cannot in any way enter into something like that. But we do attempt to help either the school, in the case where a student will not pay their tuition, or the student where the school has sent in fraudulent hours on a particular student.

BY MR. PRENDERGAST:

Q Do you know what the case is in this particular case with Mrs. Leach?

A Sir, if you’re asking me how I became aware of the case; Mrs. Leach contacted me one day after this case was filed, and told me about the case and so on and so forth. I was not aware of it until I could check the office on a Monday morning. And at this time Mrs. Leach stated she had approximately 600 hours in beauty school, and on a Monday morning I told her that she had 1,779 hours in beauty school, and that on November 22, 1965 the Louisiana State Board of Cosmetology *271sent to Mrs. Leach at 4419 Baronne Street1 a notice that she must clear immediately for her State Board examination. A copy of this letter also went to the International Hair Design School.

Q Did you check with the International Hair Design School to see whether or not she had in fact gone to school for 1779 hours?

A I went to the International Hair Design School and requested — the board requires that they keep a sign in/sign out book so that we know that the hours that are being sent in to the board are true hours. I requested the sign in/sign out book relative to the time that Mrs. Leach was in the beauty school to see whether she did or did not put these hours in school. And the board has constantly been on Mr. Sciortino for losing these books. And as we have known before, there were no books there for me to verify whether or not the student signed in or signed out. We cannot, on the strength of a letter written to this board, give Mrs. Leach her test to be a cosmetician, and because she has not put in her 1,500 hours as required by law.

* * * * * *

[On cross-examination]

Q Well, the board notified her that she had the required number of hours to take her examination, is that correct?

A Yes.

Q And your records indicate that she had those hours?

A Mr. Sciortino got a notice of this as well as myself because they sent one to my home. Because I do not work in the office. I work out in the field. *He did not attempt to clear the student as requested by the board in order that she could take her test.*[Emphasis added.]

THE COURT:

And have you found other cases like that ?

THE WITNESS:

Yes.

1

. We note that plaintiff’s 1968 record shows defendant’s residence as 2113 Desire street since October 1967 and 4126 Carondelet street for the previous five years or *since October 1962;*defendant started school in *1963.*There is no testimony concerning the Baronne street address.

CHASEZ, Judge

(dissenting).

The facts in this case are somewhat confusing due, in some respect, to the fact that counsel for appellee filed no brief to this court and on the day assigned for oral argument he requested and was granted permission to withdraw from the case.

As well as can be determined from the record, Mrs. Leach registered at the International Hair Design Institute and began classes in August or September of 1963. She attended class from that time until some time in 1965 with time out twice to give birth to two children. During this period, defendant testified, her husband paid Mr. Sciortino ten to fifteen dollars per week totaling over $200.00. However, she had no receipts or cancelled checks because “everything was destroyed in Hurricane Betsy” in 1965. Mrs. Leach continued in her testimony to the effect that after Hurricane Betsy Mr. Sciortino endeavored continuously to get her to return to the beauty school. Evidently Mrs. Leach returned to the school in November of 1968. At this time she signed the note in question. She testified to nothing that transpired after November, 1968. On the stand she testified that she was told by Mr. Sciortino that what she was signing was no more than a form for malpractice insurance.

*272Mrs. Leach also testified that Mr. Scior-tino did not tell her when she had accumulated 1500 hours, as he was required by law to do in order that she could apply to the State Board of Cosmetology to take the examination to become a licensed beauty operator. Mr. Sciortino claims she completed the course and knew she had the requisite number of hours. Mrs. Leach claims that in November of 1968 Sciortino informed her that she had completed 750 hours and still needed 750 hours to complete the course. Mrs. Leach did not file a re-enrollment application at the school in 1968, she only signed the note which she referred to as a form for malpractice insurance.

Mr. Sciortino testified that the note was given by Mrs. Leach as an indication of indebtedness for courses she had received at the school. He testified that she started and completed the course for which the note was given and further testified that the note was for the amount she owed the school and was signed by her in the presence of an instructor.

The testimony of Mrs. Leach and Mr. Sciortino conflicted. A Mrs. Mumphrey from the Board of Cosmetology testified on behalf of Mrs. Leach. Her testimony was to the effect that Mr. Sciortino’s school had been reprimanded in the past for mishandling records, but she could not testify as to any particular facts with regard to the situation as it existed between Mrs. Leach and Mr. Sciortino.

Considering the defense of failure of consideration, the law with respect thereto is not in doubt. LSA-R.S. 7:24 provides that “every negotiable instrument is deemed prima facie to have been issued for a valuable consideration.”

The defense of failure of consideration pertains to events which occur subsequent to the execution of the note, that is, some failure of the payee to perform the obligation for which the instrument was given. Paletou v. Sobel, La.App., 185 So.2d 95 (4th Cir. 1966).

In the case at bar Mrs. Leach in her answer affirmatively plead failure of consideration because the plaintiff did not conduct regular classes. However, at the trial, there was absolutely no evidence or testimony presented which in any way reflected the irregularity or not of classes conducted at the International Hair Design Institute at any time, and particularly, after the note was given. Additionally, if the note was given after the course had been completed, as contended by Mr. Sciortino, then the defense of failure of consideration would be an inappropriate defense because the note was for an antecedent debt. The defense would have been lack of consideration rather than failure of consideration since this latter defense applies only to events which occur subsequent to the execution of the note. See Paletou v. Sobel, supra.

The testimony of both plaintiff and defendant was somewhat incredible. The only evidence in the record which stands above reproach is the note itself which bears the signature of Mrs. Leach. Generally the maker has the burden of proving failure of consideration, and only when the defendant offers proof creating doubt as to the reality of consideration for the negotiable instrument sued on, the presumption that the note was given for value is rebutted and the burden of proof then shifts to the plaintiff to prove consideration by a preponderance of evidence. Moore Steel, Inc. v. Clear Lite Window Co., La.App., 178 So.2d 376 (4th Cir. 1965) and authorities cited therein. It is further understood that the defense of failure of consideration may be proved by parol evidence. X-L Finance Co. v. Gregoire, La.App., 217 So.2d 463 (1st Cir. 1969).

The record as a whole does not reflect any credible evidence offered by defendant to rebut plaintiff’s case.

Therefore I think that Mrs. Leach has not proved her defense of failure of consideration, nor has she shed doubt on whether there was consideration that fail*273ed so as to shift the burden of proof to the plaintiff. I respectfully dissent.

The judgment of the Court a quo dismissing plaintiff’s suit should be reversed and judgment entered in favor of plaintiff, Jack Sciortino, and against defendant, Mrs. Judith Leach, in the sum of Four Hundred Twenty-five ($425.00) dollars, with 8 percent per annum interest from November 15, 1968 until paid and for 20% attorneys fees on principal and interest and for all costs.