Bouziques v. Bordes , 8 Teiss. 417 ( 1911 )

ST. PAUL, J.

Plaintiff sues for the price of 94 sheep which he alleges he sold to defendant for $329 or $3.50 per head.

Defendant admits that he purchased the sheep, that the price is correct and that they were delivered to him according to contract; but he alleges that he acted in the transaction as the agent of Dufour & Co., a foreign firm; that plaintiff had knowledge of the fact and sold the sheep to said Dufour & Co;, and on their credit alone.

The defense being special, the burden of proof is on the defendant to establish affirmatively that he was in fact the agent of Dufour & Co., and transacted the business in their name and for their account.

This the defendant has failed to do, whilst on the contrary the evidence establishes to our satisfaction, as it did to that of the district judge, that the- purchase was made by defendant for his own account and on his own credit, for the purpose of a re-sale to Dufour & Co.

Not only is plaintiff’s testimony more probable, more straightforward, and more satisfactory generally than defendant’s testimony; but it is corroborated by the fact that defendant charged the price of these sheep to the general'account of Dufour & Co., standing upon his books, and credited to that account monies which he received from them; and when they failed he charged the balance of said account to profit and loss, thus indicating his own appreciation of who was the real loser by the failure of Dufour & Co.

June 14, 1911.

Moreover his- denial that he had ever collected anything on the account (afterwards contradicted by his bookkeeper), and the testimony which he gave in the case of Interstate Com. Co .vs. Bordes & Granger, No. 4617 of our docket, are not calculated to impress us as to-the reliability of his testimony.

The judgment appealed from is correct and it is affirmed.