A-1 Construction Co. v. Brown , 1981 La. App. LEXIS 5622 ( 1981 )

KLIEBERT, Judge.

Mrs. Daniel H. Brown (hereafter Mrs. Brown), the defendant, contracted with A-l Construction Company (hereafter A-1), the plaintiff, for batture dirt and dozer service. A-l rendered a bill to Mrs. Brown for 31 loads of batture dirt at $30.00 per load and 3Vi hours of dozer service at $25.00 per hour for a total of $1,068.65. Mrs. Brown admitted to owing A-l for twelve loads of dirt and contends the dozer service was to be billed at $28.00 per hour rather than $25.00 per hour and hence tendered her check for $477.80. A-l refused the check and brought suit for the $1,068.65. The trial judge, stating that the sole issue was whether A-l had delivered 31 loads of dirt or 12, found as a fact that 31 loads had been delivered and rendered judgment in favor of A-l as prayed for. Mrs. Brown brought this appeal.

When this case was called for hearing neither party had filed a brief nor responded to the call for arguments. The Court was then prepared to dismiss the appeal as an abandoned appeal, pursuant to Rule VII, Sec. 5(b) Uniform Rules. Thereafter the appellant filed a brief. In the interest of judicial expediency, therefore, we consider the merits of the appeal.

At the trial, Mr. Michael Gassen, the manager of A-l testified as to the sand delivered and the dozer services rendered which was the basis for the bill of $1,068.65 to Mrs. Brown. Additionally, Mr. Alvin Gordon, Sr., an employee of A-l testified that he personally delivered the 31 loads of batture dirt and submitted his handwritten notes as to the dates and number of loads delivered. Mrs. Brown testified that she was not home during the day, she would count the number of loads when she arrived from work. She testified that she only counted twelve loads.

Pure and simply, the issue is whether to accept the testimony of Mr. Gassen and Mr. Gordon or that of Mrs. Brown. The trial judge chose to believe the testimony of Mr. Gassen and Mr. Gordon and found as a matter of fact that 31 loads of batture dirt were delivered. In the absence of manifest error, we cannot substitute our judgment for that of the trial Court. Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error here and accordingly affirm the judgment of the trial court. All costs of appeal to be borne by the appellant.

AFFIRMED.