For the reason that I am still convinced of the correctness of the former opinion and decision handed down by this court when it had to pass on the facts in order to decide the plea of prescription, I find myself constrained to disagree with the present opinion rendered by a majority of the court. The former opinion is reported in 153 So. at page 326.
I had never understood that the fact whether Judge Alfred Barbe had ever repaid his brother, Paul Barbe, the defendant herein, the sum of money advanced by the latter and which was the amount Judge Barbe had put up for Goudeau, was an issue in the case and neither do I believe that any one connected with it thought so, until it was raised by the court in the present hearing. And still that is the issue on which the opinion is now based. The court had formerly accepted the defendant's own statement, as now quoted in the majority opinion, that "that money [had been]returned to me by Alfred M. Barbe within six months." (Italics mine.) All the attempted explanations relative to the difference between the amount and the amount paid him by Goudeau, about these matters "having been settled in the family," cannot, in my opinion, overcome this positive admission on the part of the defendant.
I agree with the statement in the majority opinion that we are not now concerned with any controversy with regard to the transfer or retransfer of the former Mrs. Goudeau's property, which was to stand as security for the advances made to Goudeau. We can, however, consider what testimony there is in the record relative to the same, as one of the many facts and circumstances, in weighing the entire evidence on the real issue that is presented in the case, and when we do so, we find that as a result of these transactions, as far as the record discloses, that Judge Alfred Barbe now owns the property; that he has paid and settled all accounts with Paul Barbe who had advanced him the money so that he could turn it over to Goudeau; and that, in addition, Paul Barbe still has the $1,350 which Goudeau paid him without knowing that he had been paid by Judge Barbe.
What additional testimony was adduced on the remand of the case after the plea of prescription had been overruled, besides being of doubtful admissibility, has not served to change my opinion in the conclusion which this court first reached, that when Paul Barbe accepted the $1,350 from Goudeau, in part payment of the money he had advanced, he obtained a double payment which was made by error and mistake and under a misapprehension of the true facts, and therefore the trustee of Goudeau's estate in bankruptcy is entitled to recover the same. *Page 880