New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-01-18

take place at the time the act was drawn
up, in reference to the proposed payment Of
a large cum Of money On the notes durino
the year and before their maturity.
He stated that he did not recollect the
precise sum which Fasnacht reserved tho
privilege OF paying during the year, but
that there was something spoken Of to that
their signatures to the act of mortgage. He
states that he read the act to Fssnacht:
that he (Fasnacht) read it himself, then
took possession Of it, and, after consulting
with Mr.. Cuvilier. an old notary, brought
it back. and, after debating the correction
already spoken of, signed it. He SAYS that
Fasnacht then and there insisted upon il
that Frank should discount any payment
he might make on the notes then given by
him to Frank at the same rate which he
obligated himself to pay as interest. Mr.
Hogan heard nothing said about extending
the time of payment beyond the maturity OF
the notes; knew nothing about it. Fas-
nacht made no objections to the act of
mortgage beyond the stipulation relating
to the cancellation Of the mortgage given
to secure an outstanding note held by some
other party. Such is substantially all the
evidence in this case. l thus find that the
only evidence given to sustain Fasnacht's
allegations are his own statements. Wild's
do not sustain them, except in so far as
they 60 to establish damages.
Fasnacht's evidence is entirely neutral
lied by Franks. As between them nothing
Is established as to granting Of time. Wild
does not, in any manner, cOrroborate Fas-
nachts statements on this point, while
H0gan's evidence does, as far as it goes,
sustain Franks statement. 1t negatively
contradicts Fasnacht. Bud, allowing that
it does nothing more than partially to cor
roborate the statement made and version
given by Frank, what is the result! Simply
that Fasnacht has signally failed to make
out his case. He being plaintiff, in pro-
ceeding heretofore denOminated "harsh,"
was bound to make his claim certain; it is
not sufficient to render it probable, even if
be had done SO. Mummy vs.. Haggerty, IS
An 26S, Is An. 90 and lI6; ByrDe vs.. Gray
son, 10 An. 457. l6 An. I2l; Briggs VS..
Simonds, II An. 294. But again, the amount
which ne seeks to determine the collection
OF vastly in excess of $500, and while the
testimony Of one witness is sufficient to
prove payment of any sum, it may be seri-
Ously doubted whether, unsupported BY cor
roboratlng circumstances. it is sufficient to
establish verbal contract, when the amount
involved exceeds five hundred dollars >
r. 304, G. c. 2277, 8 A. 1907. Alexander va.
school directors, l6 An. l9I, II An 3l2, 10
A. 433, L. 268, 10 l.. 532, 10 L. 263, 10 K.
81, An. 763, l2 A. 2OS. 1t seems to me,
the reason Of the law applies as well to
such case as this as to those in which it
has repeatedly received the interpretations
OF the courts of this State. The evidence
IN this case was permitted to take a wide
range, but inasmuch as it is a well settled
principle of law, that evidence may be re-
ceived in explanation of an authentic ac..
where 1t does not vary, alter, enlarge or re
strict it. Barnebe vs. Snaer Is An. I4S. l
am by no means satisfied that parol evi.
dence can be received in a case. like this.
tart. G. p. 739, sec. 4, notwithstanding,
to vary, alter, enlarge or restrict the stipu-
latlOns OF the present act of mortgage.
On reflection, l am firmly convinced that
that paragraph of article 739, G. r, is in
tended to apply to contracts and agree
ments between the parties entered INTO
subsequently to the signing of the anthem
tic act, and not to such as may have been
made before or at the time Of signing. If
am correct in this, then Fasnacht has no
evidence before me, because u party's
signature to an act is proof that he
Barker vs.. Bank, Is L.. 453. Authentic
acts constitute full proof against the par
ties, not only Of their agreement-Gt0! con-
centua est but also of what passed before
the notary, qnod actuaa est. Succession o.
Tete. An, 80. Anything which has &,
tendency TO alter, or in any manner sc
modify such an act, must be shown to have
tahcA PidCc subsequently, III WHICH event ID
has effect, for the simple re ason that it is
another and a new contract. But the
power to make such an agreement must DO
limited to the case provided for by the are
ticle of the Code of Practice already cited.
Bartlett VS.. Estebene, ) A, 3Ij. The par
ties to the suit stand unlmpeached, and.
aside from the corroborating evidence.
must attach as much weight to rhe state
nents of one as 20 the other. Viewed IN
this light, plaintiff has made no proc.
whatever of his allegations. This sac:
alone defeats him. | think the case is sD
irely with the defense, and as there seems
- have been no reasonable or plausible
ground for suing out this injunction, vii:
dissolve 1t at his costs, and award a.to.-
ley's fees to defendant to the extent OF tiV.s
hundred dollars, and ten per cent ;urthes
damages upon the sum of ,wenty iyo
thousand dollars, the collection OF w.li.l. ~.
li.s prevented by this proceeding.