O'Hern v. Gouldy , 26 La. Ann. 371 ( 1874 )

On Rehearing.

Wyly, J.

On further examination of the evidence in this case we are satisfied that the claim set up by Mason & Co., Zimmerman, Lyman and Covington, are debts contracted by Gouldy, against whom the bills were made out; that credit for the materials was given to the contractor Gouldy, and not to O’Hern, the owner of the lot upon which the building was to be erected. Finding, therefore, that tile debts set up were owing by Gouldy, the promise of plaintiff to pay them can not be proved by parol. Merz v. Labuzan, 23 An. 747; Levy & Dieter v. DuBois, 24 An. 309; Thompson & Barnes v. Pagaud, lately •decided. There is no ground, therefore, for a personal judgment •against the plaintiff for the amount of these claims.

It is therefore ordered that the judgment of this court, rendered in this case on the fifteenth December, 1873,.be amended so as to annul entirely that part of the judgment appealed from, decreeing a personal-judgment against the plaintiff in favor of Mason & Co., Zimmerman, Lyman and Covington, and as thus amended it is ordered that our former decree herein remain undisturbed.