The plaintiff claims of the defendant the sum of $2,647 08, as a balance due by defendant to him for servicos rendered as a gardener for a number of years up to the 30th of November, 1864, as shown by an account rendered.
The answer contains first, a general denial, but admits that the defendant has in his possession in notes of the Bank of Louisiana, the sum of $2,647, as shown by several accounts current, rendered from time to time, and by plaintiff acquiesced in; and that said1 bank notes have been kept to his order, and have been tendered to him and refused. The said sum in Louisiana Bank notes, was deposited by defendant in Court as a tender.
After hearing the evidence, the Court below decreed that plaintiff recover of the defendant the sum of $2,647, in notes of the Bank of Louisiana, and that plaintiff pay costs.
The plaintiff took this appeal.
The evidence shows that the plaintiff was employed by defendant for eight- or nine years as gardener and overseer, and that defendant invested his money by loaning it at interest or buying paper, and rendered him generally accounts current of his position with credits and debits, showing what amount was in his hands, in individual notes and cash. The accounts current rendered successively by defendant to plaintiff, showing balances cash in his hands, are as follows :
*362On the 5th March, 1858, balance, in cash....................$1,317 25
“ “ 19th February, 1859, “ “ “ .................. 279 89
“ 10th March, 1860 “ “ “ .................. 39119
“ “ 8th July, 1863, 31st December, 1862................. 2,647 08
On the 12th March, 1864, he rendered another account, commencing by crediting the plaintiff'with the above balance in his hands on the 31st December, 1862, as follows :
'Reste a son avoir a ce jour et a sa disposition, en billets de la Banque de la Louisiane $2,647 08.'
’ In the account rendered, 8th July, 1863, where the above balanee figures as'beingin his hands, 31st December, 1862, there is not’ a word about its being in notes of the Louisiana Bank. He says : Reste a son avoir, 31 Décembre 18'62, $2,647 08.
i 'On the 28th November, 1864, the defendant wrote a letter to the plaintiff, stating that the balance in his hands, consisting in notes of the Bank of Louisiana, as per last account rendered, was at his disposition and nsli’s and perils.
All these balances struck by these accounts current so rendered, constituted the relations of creditor and debtor between the parties. The only doubt, as to the currency with which the balances should be paid, is raised by the account rendered, 12th March, 1864, where the defendant says : ’
'31 Décembre, 1862., Reste it. son avoir á ce jour, et á sa disposition, tin billet dela Banque de la Louisiane, $2,647 08.
But this restriction of the mode of payment is contradicted by the account pondered 8th July, 1863, striking that very balance as in the hands <gf defendant, where it is said : “31 Décembre, 1862. Reste a son avoir, $2,0^08.” . '
It is in evidence th^t plaintiff cannot sign his name, that he can read printed matter, but not hand-writing. We believe,. under the circumstances, that the plaintiff is not bound by this last account, the contents of which it seems he did not know, as shown by the testimony. The plaintiff had no particular funds in the hands of the defendant, who had at the time, accounts with other banks than the Bank.of Louisiana, and there was no separate account in the name of the plaintiff; whatever money plaintiff had in the hands of the defendant, created simply a common indebtedness, and not a special deposit of any distinct funds. Tile judgment of the District Court must be reversed.
,Itis therefore ordered’, adjudged and decreed, that the judgment appealed from be annulled and avoided. It is further ordered, adjudged £^nd decreed that the defendant, Frank Perret, pay to the plaintiff, Jean Pierre Girenivet, the sum of twenty-six hundred and forty-seven dollars, with legal interest, from judicial demand, to wit: from the 30th of December, 1864, until paid, and costs in both Courts.