215 La. 626

#### HINTERLANG v. USNER et al.

No. 39043.

Supreme Court of Louisiana.

May 31, 1949.

Walter G. Wedig, Walter G. Wedig, Jr., New Orleans, for defendants and appellants.

Warren M. Simon, Elmer D. Flanders, New Orleans, for plaintiff and appellee.

MOISE, Justice.

Defendants are appealing from a judgment in the sum -of $2375, the balance due on a promissory note, with interest and attorney’s fees, in favor of the plaintiff, with recognition of her special mortgage and vendor’s lien on the property described in the notarial act of sale and chattel mortgage dated October 17, 1946.

Petitioner alleges that she sold to defendants, by authentic act of -sale and chattel mortgage, the business known as A-l Delivery Service for the price of $4,000, on terms of $1500 cash and the balance represented by a promissory note in the sum of $2500, bearing 6% interest per annum, payable in monthly installments of $208.33, beginning -on December 10, 1946. There is included in the sale a 1940 International Truck, Model D,-Motor No. 96288. The defendants made a payment of $125 on the first installment and thereafter -refused t-o make further payments to plaintiff. After amicable demand, plaintiff instituted t-his suit.

The defendants answered, resisting the demand on grounds of fraud and misrepresentation, which misrepresentations they aver induced them to purchase the business.

On the trial -on the merits, the district . court found that the defendants had not established their defense with reasonable certainty and rendered judgment against them.

The question- now before us for decision is -one -o-f fact. . .

After a careful .analysis of -the record and more particularly the averments ■relating to fraud and misrepresentation found in the answer, we feel satisfied that it would serve no useful purpose to set out in -detail all of the testimony in this •voluminous record but will -concentrate our discussion on matters of substance.- We find that defendants have not established proof o-f their averments as to fraud and misrepresentation and that their testimony i-s -conflicting. The certainty of proof of their charges has been voided by their -own statements -and other averments have been rendered ineffectual by a preponderance of evidence submitted by the plaintiff.

The defendants charge that they were -led to believe that the business sold to them had about 50 customers but that there were only 30. Defendant Fa-rrell’s testimony, however, -fixes the number of customers at 58. Defendants claim that they were told that the truck used in the business was a 1% ton truck, yet the -chattel mortgage which they signed was for a % ton truck; -and they declare that -on -the night when the -final -agreement was made the truck was in the garage with only the rear end -showing. The evidence, and particularly the testimony of -three witnesses fo-r the plaintiff, is to the effect that the truck was in the driveway and that one of the witnesses drove the defendant Farrell around the block in the truck on that *456night. , The defendants claim that they made the 'reduced installment payment of ‘$125 because plaintiff had agreed .to a reduction of $1,000 in the sale price of the business. The plaintiffs testimony is that she agreed to make -this deduction provided defendants paid to . her the amount due on the note in cash. The defendants claim that they were told 'that the business was supposed to be yielding, from $500 to $700 per -month. The plaintiff and her witnesses testified that she -stated to them that the business wa-s ‘‘grossing close to $500.00” a month. The defendants charge that the plaintiff never gave them a list of custom-, ers. The plaintiff states, and she is un-contradicted, that she actually -sent them to customers as they telephoned and that her driver rode around the route -on the first day after they purchased -the business -and that he and the defendant Usner contacted all of the customers. Defendant Usner admitted that the plaintiff gave them the names and addresses of the customers as they telephoned her and requested service.

Defendant Farrell testified that the truck sold to them was nothing but a wreck, the fenders were off -and just about everything was wrong with it. The fact is developed by the evidence that on the night of the negotiations, plaintiff agreed to 'buy (and did later buy) two new fenders for the truck. . Defendant Usner testified that plaintiff did not agree to make any other repairs on the truck. He stated that when he received it on the morning of the sale, he did not mention anything to Farrell about it being a ton and a half, or two ton, or a half ton truck, -and -that it was the -same truck' that the plaintiff showed them the night before.

Ar.ti-cle 1848 of the Revised Civil Code provides in part that “Fraud, like every other allegation, must be proved by him who alleges it, * * *. The maxim that *fraud*is not to be presumed, means no more than that it *is not to be imputed without legal evidence.’1*(Italics mine.)

It is not within the province of any -court to relieve a litigant of a bad bargain. Its only province is to render judgment in conformity with the ■ law and evidence. Our -study -of the fa-cts of this case convinces us that the trial judge’s findings are ■correct and we will, therefore, affirm -his judgment.

For the above reasons, -the judgment of the district -court is affirmed at defendants’ -costs.

O’NIELL, -C. J., takes no -part.