On the Merits- — The Onus of Proof.
[2] As to -where the onus of proof lies is the next question for our consideration. It *255rests with the defendant. It is true that the burden was on the plaintiff to prove what the contract contained and the essentials 'for recovering judgment. But plaintiff was entitled to 10 per cent, of the profits after deducting expenses. Those expenses made .by the defendant, of which he kept a record, it devolved upon him to prove. They were the defendant’s account, the correctness of which it devolved upon him. He kept books and had knowledge of the facts. The one who has the knowledge of facts and who propounds an affirmative issue should prove them. One of the solvents is: If defendant fails to produce evidence, who will be the loser? Here it is very evident that without evidence defendant would have been the loser. The duty of producing evidence may •shift. In this instance it had in the course of the trial shifted to the extent before mentioned.
[3] The next question is whether, the sale •of the crop made by the defendant to his ,son during the year should be the basis for ascertaining the amount due to plaintiff. ■The sale from father to son was made in the early .part of November, 1905, while the •crop, it was stated in argument, ‘‘was in marketable form before the case was tried.”
We have arrived at the conclusion that it "is not possible to take the private sale in •question as the basis of settlement. With •candor, defendant owned that the purpose in making this sale was to obviate the necessity of keeping an account and of having to produce an account if called upon by the plaintiff on the trial.
Defendant, having given an undivided "tenth of the profits, interested Mr. Sharp to sin extent that conferred upon him the right to object to a private sale of the crop. The :son made no actual payment of the price. While it is true that it was sold at the market price of sugar and molasses on the public markets of New Orleans at the time of sale, less the costs of shipping and selling, it remains that, despite the right of the defendant to dispose of that which belonged to the plaintiff of his own, he could not dispose of that which belonged to the plaintiff in any other manner than crops are disposed of usually. It is not the usual way that crops are disposed of, and it is not at all probable that either party at the time the contract was entered into thought for an instant that the defendant would sell his whole crop to his son. While it is proven that at times planters dispose of their crops as the defendant did, it is common knowledge that crops are nearly always sold in open market, and nothing suggests that in this instance it should have been different.
[4] Having decided the issues as above stated, we take up the question of the net profits (presented in the alternative by defendant) made on the crop to the end of ascertaining the amount due to plaintiff.
The contention of defendant is that he held the crop for a considerable time in order-to obtain a better price; that the amount allowed plaintiff, if any amount be allowed, should be calculated upon the actual amount for which the crop sold in the New Orleans sugar market six months after it had been manufactured; and that, since plaintiff is to share in the benefit obtained by the delay, he should bear his proportion of expenses for holding the crop.
It occurs to us that that is fair, and we will, in ascertaining the different amounts, take those expenses in consideration and allow those which in our opinion should be allowed.
Considering the facts and the circumstances, unquestionably defendant made advances to plant, cultivate, and gather the crop as well as manufacture the cane into sugar. The amount advanced must be fixed and’ the interest it bears. There seems to be no question about the amount. We take it as fixed by the judgment of the district court
*257We take up the rate of interest on the amount. Plaintiff alleged that it was agreed that defendant should furnish the supplies with which to make the crop; 8 per cent, to be allowed, to quote from the petition. The judge of the district court allowed interest from the 1st of January to the 1st of November, which we think is correct. As just above stated, plaintiff alleged in his petition that defendant, according to the agreement, “was entitled to 8 per cent, interest.” The testimony in addition shows that he is entitled to that interest for expenditure in cultivating the crop. This is the amount upon which the judge of the district court allowed interest at the rate of 8 per cent. He also allowed interest upon the labor and supply account from the 1st of February to the time that the crop was sold. We think that this item is also correct and that it was proper to reduce the percentage to the rate -of 5, for the evidence does not prove that it was 'in contemplation to pay interest after the crop was manufactured into sugar, but, ' as plaintiff was benefited by delaying in selling the crop, it is just that he should pay interest during that delay that he held the crop for a better price.,
As to the interest for the three months, that also, if any interest be allowed, must be reduced to 5 per cent., because it does not seem that it was not covered by the allegation in the petition nor by the testimony.
The defendant positively limited in his testimony the interest at 8 per cent, to November 1, 1905.
We are informed that the theory of the district judge .in not allowing interest during these three months was that the expenses for grinding are not paid until the end of grinding, in this instance to January 30, 1906.
The difficulty in allowing interest for these three months is that we have not the necessary data. The record shows, as per pay roll for October, November, December, and January, $22,278.80. This roll cannot be taken for the calculation because it includes October. It does not appear what the exact amount which was expended for labor in the other three months was. The expenses of October were counted with the expenses of the other three months in so far as relates to labor account. It does not appear how much was expended for the three months.
[5] Taking up the next contested item, it relates to fire insurance on the sugar house and the crop of sugar and molasses. This property was not insured at all nor premium paid of any kind. Defendant claims that, inasmuch as he usually insured his own property and his own crops, he is entitled to insurance. We cannot agree with that view. The claim has no basis. It is a mere speculation as to the benefit conferred, for which defendant did not pay anything. Had premiums been paid, there would be a proper item of expenses. Assuming a risk of fire under the circumstances of this case would not create an indebtedness on the part of one who has a fractional interest in the net profits. The good fortune of defendant in having escaped loss by fire cannot be capitalized and an amount obtained from his partner in the manner proposed in the absence of all agreement. •
[6] The next item relates to two small amounts paid, one a subscription to the Cane Growers’ Association and the other to the Immigration Bureau. These amounts cannot be questioned by plaintiff for the reason that no objection was made to these items in plaintiff’s answer to the appeal, and, even if we were to consider the grounds alleged as sufficient to retain the right to reject, it would serve no purpose, for the answer to the appeal was not timely filed. It was filed entirely too late, months after the time in which the answer to the appeal should have been filed had elapsed.
*259The appellant, on the other hand, can he heard because he is not bound by any such rule.
His contention is that there was an error of $75 committed in the judgment appealed from. It was, we judge, an oversight and will have to. be deducted.
The next disputed item is for $1,500 for 75 acres of seed cane. Seed cane was put down less than was necessary to plant a similar number of acres as had been planted in 1905. If a like number of acres of cane had been put down as was put down in 1905, there would have been just that number less for grinding than there was actually ground, for which plaintiff now receives an accounting. This was allowed by the judge of the district court, and, as plaintiff did not in time urge complaint against the item, it will remain as was found heretofore. The defendant was entitled to put down the seed cane as he chose to do. The judge of the district court, after having considered the matter, fixed the amount at $12 an acre for this cane in windrow. We infer that this is a correct amount and will pass to the next point.
Objection is urged by defendant because this cane, amounting to 375 tons, was worth more than the amount allowed. The defendant paid a Mr. Le Blanc for his cane the amount which was allowed in this instance. Objection is urged on the ground that there were special reasons for increasing the amount of this claim. We have read those reasons and they are not convincing. We will leave the amount as heretofore found by the district judge, and that was $2.85 per ton.
[7] We come now to the cane derrick and fuel tanks which give rise to another complaint.
Defendant charged for the derrick $3,310 and $1,514.32 for the costs of the oil tanks. This was properly not allowed. As to the deterioration or depreciation of the derrick, to wit, $3,310, the loss in value of the oil tank, $1,514.32, or the 16 mules, $3,760, or 2 mules, $312, or 2 cane loaders, $586, which the defendant claims as expenses for the year 1905, they also were properly, as we think, not allowed as they, were improvements on the place which remained with the place and in which plaintiff had no interest as an owner. In the first defendant charged for the price or value of the foregoing improvement. This was not allowed.
The 'judge, however, properly allowed an amount for their use and depreciation, which was carried in the expense account. Ten per cent, depreciation was allowed on the derrick and oil tank; 50 per cent, on the cane loader. This has the appearance of beipg fair and will remain charged as it is.
It seems to us that it was the correct method to charge the wear and tear on the cane derricks, oil tanks, mules, and other similar property. This amount was fixed at 10 per cent., properly enough, we think. This proportion of the expenses was properly charged to the crop of 1905.
It seems to us that the item headed Mitchel Le Blanc claim was as justly settled as it was possible to settle it. The cane bought had been charged to the partnership’s account and settled as a partnership claim.
The salary of Donis McBride reduced from $1,000 to $500. We have found no good reason to change it.
Prescription.
[8, 9] There is no merit in the plea of prescription filed on appeal. The citation had been served on the plantation; besides, personal service had been made on the defendant in the city of New" Orleans. The certified copy of the return on the citation to the defendant shows that the service was made by handing the papers to Charles Deiber, a person of age, who had charge of defendant’s dwelling.
*261The defendant was absent from home. The officer adds:
“I being informed by said Charles Deiber that J. M. McBride was then temporarily away with his family, and while he (the said Charles Deiber) did not live in the domicile and residence of defendant, he was, as be informed me, in charge of the same and was at tbe time of making this service at and in the domicile of J. M. McBride.”
In addition, defendant was personally served with required papers in tbe city of New Orleans.
We take it, after reading tbe papers, that tbe one upon whom tbe papers were served was a resident on tbe plantation.
It has been held that service on tbe overseer is sufficient. Maxwell v. Collier, 6 Rob. 86.
To tbe same effect is Succession of McCalop, 10 La. Ann. 225; Rousseau v. Gayarre, 24 La. Ann. 855.
Moreover, tbe three years’ time pleaded in support of tbe plea bad not elapsed at tbe date that defendant first filed an appearance in tbe suit.
Again, even if not sufficient and defective, it interrupted prescription, as will be made evident by tbe following precedents: Leon v. Bouillet, 21 La. Ann. 651; Sorrell v. Laurent, 27 La. Ann. 70; New Orleans Canal & B. Co. v. Tanner, 26 La. Ann. 274; Martinez v. Vives, 30 La. Ann. 818.
Although there is one authority to tbe contrary, expressed in a sentence which may be deemed as slightly obiter, we are not inclined to tbe view that tbe personal service on one away from bis domicile but in tbe state is not sufficient to interrupt prescription.
Tbe defendant cannot gather comfort from Carrere v. Aucoin, 122 La. 258, 47 South. 58, nor s. c., 127 La. 62, 53 South. 427, neither of which is in point.
It is therefore ordered, adjudged, and decreed that tbe judgment appealed from is amended by deducting 10 per cent, of $75 from tbe judgment, leaving amount of the judgment to $1,480.73. With this amendment the judgment of tbe district court is affirmed; costs of appeal to be paid in tbe proportion of nine-tenths by defendant and one-tenth by plaintiff.