Hannay v. New Orleans Cotton Exch.

Citations

• 112 La. 998
• 36 So. 831
• 1903 La. LEXIS 478

Syllabus

<p>APPEAL — MOTION TO DISMISS — PERISHABLE PROPERTY — PRESUMPTIONS—EVIDENCE.</p> <p>1. Plaintiff and appellee having moved in the district court to set aside the appeal, so far as it was suspensive, he has no right to ask for a dismissal of the appeal before the Supreme Court on the same ground urged in the district court to set aside the appeal, so far as it was suspensive; it being, evident that, if appellant is not entitled to a suspensive appeal, he is entitled to a devolutive appeal, and that, if his motion were sustained here, it would be to the extent of declaring the judgment executory, and the right to a devolutive appeal would remain.</p> <p>2. In the second place, even if the motion lies here, the amount of the bond was not fixed by law, and the case does not fall within the class of those cases on appeal to which articles 575 and 576 of the Code of Practice refers. The property is not a tangible movable of a perishable nature, to which article 576 refers.</p> <p>On Rehearing.</p> <p>3. Contracts or agreements above §500 in value must be proved by at least one credible witness, and other corroborative circumstances. Civ. Code, art. 2277.</p> <p>The same rule applies to mandates. Civ. Code, art. 2992.</p> <p>4. Parol testimony as to transactions with a man long- since dead is the weakest species of evidence. Bodenheimer v. Bodenheimer’s Bx’rs, 35 La. Ann. 1005; Wood v. Egan, 39 La. Ann. 684.</p> <p>5. Where the alleged agreement involving the advance of $50,000 by a firm in Glasgow, Scotland, to a firm in New Orleans, must have been made or evidenced by letters or other writings, the presumption is against the plaintiff, who produces no such written evidence nor accounts for its absence, but relies on his own testimony to establish the original agreement. Ice Co. v. Ermann, 36 La. Ann. 841.</p> <p>Breaux, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>