#### CHILDS v. MECHE.

No. 1352.

Court of Appeal of Louisiana. First Circuit.

June 11, 1934.

Carmouche & Carmouche, of Crowley, for appellant.

George K. Perrault, of Opelousas, for ap-pellee.

LE BLANC,'Judge.

The defendant in this case, Onezime Meche, Jr., was a tenant on a plantation owned by the plaintiff, Dr. A. B. Childs, who made him the necessary advances for making and harvesting a rice crop during the year 1931. The agreement, which was a verbal one, provided in substance that Dr. Childs was to furnish, in addition to the land and advances, the necessary seed for planting, water for irrigation, and pay the expenses of operating the pumping plant. Meche, for his part, was to make the crop, harvest and deliver it to a designated. storage warehouse, and pay his share of the bags. They were then to share equally in the proceeds.

The present suit has for its purpose an accounting between them, plaintiff claiming that the proceeds from the sate of the rice crop were insufficient to pay all of the advances made by him, and that defendant is indebted to him in the further sum of $710.80.

In his original petition, plaintiff alleged that the total amount of advances made by him was $2,181.57, to which must be added interest amounting to $150.68, making the gross total $2,332.25. He alleges that the net amount of credit defendant is entitled to from the proceeds of the sates of the rice is $1,621.45, leaving the balance of $710.80 due him and for which he seeks to recover judgment. Alleging further that he held a chattel- mortgage on certain movables belonging to the defendant, fully described in his petition, plaintiff asks for a recognition of the mortgage, and, in addition thereto, asked for and obtained a writ of provisional seizure under which the property was seized by the sheriff, some of it being afterwards released on a forthcoming bond furnished by the defendant.

The defendant first excepted to plaintiff’s petition.on the ground of vagueness. In answer to the exception, plaintiff filed a sup■plemental petition in which he itemized the *274advances alleged to bave been made by bim. Tbe amounts as itemized, exclusive of tbe demand for interest, total $1,964.58. There is a difference of $216.99 between tbis total and tbe sum alleged to bave constituted tbe total amount of advances in the original petition, exclusive of interest. We will assume tbis difference to be an amount alleged in tbe supplemental petition to be due in accordance»with an agreement in reference to some matters concerning other parties therein named. Tbe amount is not specified, however, and plaintiff merely alleged that it would be shown on tbe trial of tbe case. We note that tbe trial judge sustained an objection to tbe introduction of testimony with regard to that claim. Tbe ruling was undoubtedly proper and is not questioned.

Tbe defendant.filed answers to tbe original and supplemental petitions on the same day. In answer to tbe original petition, be averred that tbe advances made to bim by plaintiff aggregated tbe sum of $1,370.77, and that, as bis share in tbe proceeds from tbe crop amounted to $2,008.74, that left plaintiff owing bim a balance of $637.97. He alleges that the seizure of his property was obtained in malice, and that be has suffered damages by reason thereof in the sum of $100. He also claims $100 as damages for attorney’s fees in having tbe seizure released. In addition to tbis, be sets out various credits amounting to tbe sum of $65.35 due bim by plaintiff, and then, assuming the position of a plaintiff in, reconvention, be asks for judgment against tbe plaintiff in tbe full amount of $903.32.

In bis answer to the supplemental petition, defendant denies fifteen of tbe thirty-seven items listed therein. Tbe total amount of tbe fifteen items denied by bim is $593.81. If we add this amount of items that are denied by defendant to tbe amount of advances be avers in his answer that was made to bim, of $1,-370.77, we find a total of $1,964.58, the exact amount of tbe various items enumerated in plaintiff’s supplemental petition exclusive of tbe item for interest.

After bearing considerable testimony on’all disputed items, most of which was of a very uncertain and indefinite character, tbe trial judge banded down an opinion in which be sustained tbe defendant in bis denial of four of the items listed in plaintiff’s supplemental petition, aggregating tbe sum of $222.70. He reduced tbe interest charge from $150.68 to $75, and allowed defendant tbe total credits claimed by him amounting to $65.35. He, in addition, reduced (be amount of the advances claimed to bave been made by disallowing one item and half of another which appeared as charges on certain accounts offered in evidence, but which bad not been pleaded either as a charge by plaintiff or a credit by the defendant. These together amounted to tbe sum of $97.02. The total amount of advances claimed to bave been made by plaintiff, including the interest demanded, was $2,115.28. Tbe total amount of credits and deductions tbe district judge held defendant entitled to was $460.75. He then established tbe net amount coming to tbe defendant from tbe sale of tbe rice- crop at $1,725.78, which left a balance in bis favor in tbe accounting of $71.27, and be accordingly rendered judgment against tbe plaintiff in that amount. Tbe writ of provisional seizure was recalled and tbe seizure thereunder dissolved, but all claims for damages were denied.

From tbe judgment as rendered, tbe plaintiff appealed. The defendant is satisfied therewith, and asks that it be affirmed.

We find tbe case to be very complicated, as accounting suits generally are. What makes tbis one a bit worse in that respect is due to tbe very loose manner in which these people conducted their business transactions. Neither kept books or records that could be of any assistance in determining bow they stood in their accounts with each other, and tbe evidence is otherwise far from being satisfactory. Plaintiff and bis wife, who be says is bis bookkeeper, speak of books and accounts kept by them, but they did not produce any of these, and, if we are to judge from their testimony concerning the manner in which they were kept, we doubt that they would have thrown much light on the subject. The defendant is admittedly a man without much education. He kept no boobs or records of any kind, and had to rely on bis memory to recall every transaction.

In tbe light of tbe evidence before him, we think that tbe district judge did well in disposing of some of the disputed items, although we believe that be erred in allowing tbe defendant a credit in two of the items whcb bad not been pleaded either as charges or credits. These are the two items already referred to. The aggregate of tbe two credits is $97.02, which amount will therefore have to be taken from tbe gross amount of tbe credits given in tbe judgment.

Tbe principal item of dispute, and which was also disallowed plaintiff, is a charge in tbe sum of $139 for an alleged payment made to one Willie Brandt for threshing defendant’s rice crop of 1930. Tbe presumption of course is that tbis item was included in tbe settlement of accounts between tbe par*275ties for the crop of that year. As rebutting that presumption, however, we find a declaration in the act of crop lien and chattel mortgage for the year 1931 and executed on January 9th of that year, that the note given by the defendant, in connection therewith, is to represent advances for the crop of 1931 “and $462.00 for advances received for the year 1930.’’ The proper way to incorporate this declaration in the act would have been to specify the items which constituted this balance carried over from the former year. That would have forestalled any dispute. We believe, however, that, as the positive proof that this amount of $139 was paid to Mr. Brandt for account of the defendant, on January 28, 1931, which was almost three weeks after the latter had executed the new act of lien and chattel mortgage and given his note, is a circumstance which favors the charge that has been made by plaintiff for this item and Supports his testimony as to its correctness. We think that this amount also ought to be deducted from the total amount of credits given the defendant in the judgment. As for the remaining amount included in the balance that was carried over from the previous year in the sum stated as being $462, plaintiff failed to list any of the items in his pleadings, and whatever testimony he sought to substantiate them with was properly excluded by the trial judge.

The district judge properly rejected three of the other items disputed by defendant, one on the ground that it was not a proper charge against him and the other two for lack of sufficient proof. With regard to the interest account, we thoroughly agree with the learned district judge that it was next to impossible, under the system of accounts as kept by the parties, to arrive at what the exact charge would be. He fixed the sum of $75 as the approximate amount of interest due, and both parties seem to be satisfied with that sum. Neither of them disputes the amount of $1,725.78 determined by him as being -the net proceeds coming to the defendant from the sale of the rice crop. Some of the items of credit making the- total of $65.35 allowed by him are contested by the plaintiff on appeal, but we think they were all satisfactorily proven. At any rate, the testimony as to these is not of such nature as to justify us in reversing his findings.

The concluson we have reached in holding that the district judge was in error on the item of $139 and the two items aggregating the sum of $97.02 brings about a different result in the final judgment and produces a balance in favor of the plaintiff instead of the defendant, as did the judgment of the lower court. Instead of total credits of $460.75, including the reduction in the amount of interest, as found by the district judge, the total reached by us is only $224.73. Deducting that amount from the total amount of advances, including interest, claimed by the plaintiff, we are left with a balance of $1,890.53, the true amount of advances after allowing all credits. As the proceeds from the sale of the rice crop netted defendant the sum of $1,725.78, he is left owing the plaintiff the sum of $164.75, for which the latter is entitled to judgment. In the matter of costs, we think that the case is one which calls for the exercise of the discretionary power granted appellate courts in this -state under section 2 of Act No. 229 of 1910, and we will accordingly distribute and prorate the costs in the lower court evenly between the two parties and cast the appellee with the costs in this court. Under such judgment, defendant of course would not be entitled to recover any of the damages he claims.

We find it necessary therefore to recast the judgment in toto, and therefore it is now ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, set aside and reversed, and that there be judgment in favor of the plaintiff, Dr. A. B. Childs, and against the defendant, Onezime Meche, Jr., in the full sum of $164.75, with interest at the rate of 8 per cent, per annum from date of judicial demand, until paid, and 10 per cent, on the aggregate amount of said sum and interest, as attorney’s fees.

It is further ordered that the writ of provisional seizure herein issued at the instance of the plaintiff be maintained and perpetuated, and that the chattel mortgage on the movables given to secure the amount of advances made by -him be recognized and declared to be executory, and that, from the proceeds of the sale of the property provisionally seized and foreclosed on, plaintiff be paid, by preference and priority over all other claims, the full amount of this judgment.

It is further ordered that all costs of this proceeding in the di-stricj; court be distributed and equally prorated between the plaintiff and defendant, and that the costs of this appeal be paid by the defendant appellee.