Staehle v. Leopold

Citations

• 107 La. 399

Syllabus

<p>Syllabus.</p> <p>On Motion to Dismiss the Appeal on the Ground op Acquiescence in the Judgment op the Lower Court.</p> <p>Plaintiff and appellant reserved his right to prosecute his appeal in his receipt handed by him to the defendant for an amount received after judgment In part payment of his claim, in terms sufficiently plain.</p> <p>The court overruled the motion to dismiss.</p> <p>On the Merits.</p> <p>1. The acceptance of the lessee was not substantially different from the offer of the lessor.</p> <p>2. The parties disagreed about the amount of the rent, and when in the end the tenant agreed to pay the amount as he understood to have been asked by plaintiff, there was no question raised regarding the amount of the respective instalments, the total of which instalments is the same whether as claimed by plaintiff or as accepted by defendant.</p> <p>3. The evidence is conflicting, defendant swearing affirmatively and plaintiff stoutly denying. Between positive testimony regarding what was said or done at a particular time and negative testimony, the latter is generally con- . sidered of less weight, when it becomes merely a question of correctness ot things remembered to have occurred or been said, the tacts and circumstances of the case not being such as to prevent the unjust operation of the rule. Cuesnard vs. Executor, 33 Ann. 800 ; Law of Evidence, Jones, Vol. 3, p. 901.</p> <p>4. Where an issue was not raised in the District Court on appeal a correction of the judgment will not be made.</p> <p>5. The controversy is brought to an end by deciding in effect that plaintiff is the lessor of the defendant an'd that the latter owes rent as set forth in the decision.</p>