text:
    Charles E. GRENTNER and John G. Grentner, a partnership doing business as Grentner Brothers, Appellants, v. LE JEUNE AUTO THEATER, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Feb. 8, 1956.

      Hendricks & Hendricks, Miami, for appellants.
    Daniel G. Satin and Jack A. Falk, Miami, for appellee.
   ROBERTS, Justice.

This is a controversy between the lessees, under a common lessor, of adjoining property. The plaintiff, appellee here, has since May 1950 operated a drive-in theatre on the premises leased by it. The defendants, appellants here, took possession of the adjoining property under an assignment of lease from one Watson and in 1953 established a used car lot thereon. The difficulty between the parties arose out of the effect on the operation of the theatre of the lights used by defendants in illuminating their lot and displaying their wares. It is not disputed that the lights blur the picture on the movie screen and are annoying to the patrons of the theatre; it is also conceded that the method of illumination adopted by defendants is the type of lighting customarily found in used car lots in the area.

Plaintiff filed suit against the defendants for a mandatory injunction to compel them to correct and eliminate the objectionable lighting, on two grounds: (1) that it constituted a private nuisance, and (2) that it violated the terms of the lease, and modification thereof, under which the defendants were in possession of the premises. The complaint also asked for damages. The cause was heard by a Special Master, and his findings of fact and conclusions of law were approved and affirmed in their entirety by the Chancellor. The Special Master found that the lighting did not constitute a private nuisance, but that it constituted a violation of the terms of the lease. He recommended that no damages be awarded to plaintiff. The final decree required the defendants to correct the objectionable lighting by one of the two procedures recommended by an expert witness, and this appeal by defendants followed. The only question here is whether the Special Master and Chancellor misinterpreted the applicable provisions of the lease.

The defendants’ leased premises were originally leased by the lessor to Watson and wife in January 1952 for use as a restaurant and cocktail bar. This lease provided in paragraph 3 thereof that the Wat-sons could not assign it or sub-let any portion of the leased premises “nor shall the same be used for any purpose or purposes which might be detrimental to or competitive with the interests of the lessors on property owned by them to the South and East of this leasehold [the drive-in theater property], without first having obtained the written consent' to such assignment or un-derletting, or to such change of purpose for the use of the premises, from the lessor * * * ” Also pertinent here is paragraph 24 of a Rider to the original lease, which provides as follows:

“24. Lessors agree that the Lessees shall have the right to sublet the premises or any part thereof, providing that no sign or lights shall be erected by either tenent or sub-tenant that would in any way obstruct the view of the Theater Display sign located on Lejeune Road, south of this leasehold, nor shall either tenant or sub-tenant make any use of the property described herein or any part thereof in a manner which would be objectionable to the drive-in theatre adjacent to this leasehold. Subletting does not in any way release the Lessees from their obligation as stated in this lease and sub-tenants, if any, shall be bound by the same conditions as stated herein.”

This lease was modified by an agreement dated November 29, 1952, looking toward the use of the premises as a used car lot, and the lease, as modified, was assigned by the Watsons to the defendants in December 1952. The pertinent portions of the modification agreement are as follows:

“1. That clause 3 and paragraph 24 of the rider, of the original lease, is amended to (sic) that the Lessees or their assigns may have the privilege of using said premises as a used car lot, and Lessees or their assigns shall have the right to pave such portions of the property as may be necessary or proper for use in the used car business, and to make such installations on the premises as may be a necessary and proper part of the operation of the business of the sale of used cars excepting any restrictions or limitations contained in said lease or rider attached thereto.

# * Jjl

“4. The Lessors and Lessees agree that except as above herein expressly modified, that all of the remaining terms and conditions of the original lease and the rider attached thereto, shall remain in' full force and effect.

“5. Lessee shall not use demised premises for any purpose other than a used car lot, nor shall he sub-let or assign this lease, without first obtaining Lessor’s written consent to such change in use, or. sub-letting or assignment, which such consent shall be subject to all the provisions contained in paragraph 24 of the rider to the original lease.”

The Special Master construed these provisions.of the lease and modification agreement as follows:

“One, in trying to arrive at the intention of the parties, would naturally consider here that the .modification agreement expressly authorized the lessees or their assigns to use the premises for the purpose of operating thereon the business of the sale of used cars and as the Defendants contend; the lessors must have-been aware of the fact that that type of operation, at least in the Miami area, calls for the installation and use of a great number of lights. In that connection, the lessors specifically agreed that the lessees or assigns might make such installations on the premises as may be a necessary and proper part of such an operation. Undoubtedly, such installations included lights or lighting facilities such as are necessary and a proper part of the operation of such a business. But, the lessors further said and the lessees agreed, or vice versa: excepting any restrictions or limitations contained in said lease or rider thereto. The word ‘excepting’ caused the writer to pause to determine whether it meant ‘excluding,’, ‘notwithstanding,’ ‘in spite of,’ ‘subject to,’ .or ‘reserving.’ An examination- of- authorities forces the Master to the conclusion that the word ‘excepting’ in the instrument under consideration could not be interpreted as meaning ‘excluding,’ ‘notwithstanding’ or ‘in spite of,’ but must be interpreted as meaning ‘reserving’ or ‘subject to’ any restrictions or limitations contained in the lease or rider attached thereto. It seems that the words ‘excepting’ and ‘reserving’ are often used interchangeably and any technical meaning must be derived from intention of the parties. Generally, a ‘reservation’ in a deed is like an ‘exception,’ something to be deducted from the thing granted, narrowing and limiting what would otherwise pass by the general words of the grant, and the words ‘reserving’ and ‘excepting,’ although strictly distinguishable, may be used interchangeably or indiscriminately. See 15A Words and Phrases, Excepting, p. 79, et seq. and Pocket Part. In the case of Florida East Coast Ry. Co. v. Worley, 49 Fla. 297, 38 So. 618, 619, 623, the Supreme Court of Florida, speaking through Mr. Justice Carter, said:

“ ‘There is no arbitrary rule which requires that the technical meaning of these words shall be given them in every instance where used in grants, written dedications, and other documents. The two words (reserving and excepting) are frequently used interchangeably, and the technical meaning will be made to yield to the manifest intention. 13 Cyc. 674.’

“But if there remains any doubt as to the meaning of the word ‘excepting’, a close look at paragraph 5 of the modification seems to remove the possibility of such doubt. In this paragraph it is provided that.the lessees shall not use demis.ed premises for any purpose other than a used car lot, nor shall they sublet or assign the lease, without first obtaining lessor’s written consent to such change in use, or subletting or assignment, which such consent shall he subject to all the provisions contained in-paragraph 24 of the Rider to the original lease. Defendants hold the leasehold in question under an assignment and while the record is silent as to the written consent required, it must .be assumed that lessors gave their written consent to such assignment, but that consent, under the terms of the Modification, could only be subject to all the provisions contained in paragraph 24 of the Rider to the original lease. And, it is in that paragraph 24 where we find the provision to the effect that neither lessees nor assigns shall make any use of the property described therein or any part thereof in a manner which would be objectionable to the drive-in theatre adjacent to the leasehold. Under the Modification Agreement, no consent to said assignment would have been given without subjecting the Defendants to ‘all the provisions contained in paragraph 24 of the Rider to the original lease.’ And, so it is that we must hold that the Defendants, although specifically authorized to use the premises in the operation of the business of the sale of used cars and also specifically authorized to pave certain portions thereof and to make such installations on the premises as may be a necessary and proper part of the operation of the business of the sale of used cars, in so doing may not use the property in a manner which would be objectionable to the drive-in theatre adjacent to the leasehold.”

We are in complete agreement with the interpretation made by the Master, and adopt his views as those of this court. That this was the clear intent of the parties is further shown by a letter directed to the defendants by the common lessor of the parties in March 19S3 in which he advised them, as follows:

“Before entering into any lease agreement with Mr. Watson we had a clear understanding with him regarding the fact that certain types of lighting could be highly detrimental to the theatre’s business therefore certain restrictive clauses were incorporated in the original lease agreement as well as in the modification of lease agreement. Mr. Watson assumed the responsibility of protecting these interests and you in taking over Mr. Watson’s lease assume the same responsibility.”

There can be no doubt that the lighting used by defendants was such a substantial interference with plaintiff’s the-atre business as to be “objectionable” within the meaning of the restrictive covenant of the lease. Cf. Theunissen v. Huyler’s Inc., 58 App.D.C. 106, 25 F.2d 530, 61 A.L.R. 706. Nor has it been made to appear that such a restraint is unreasonable. This court said in Sinclair Refining Co. v. Watson, Fla., 65 So.2d 732, 733, that

“While covenants restraining the free use of real property are not favored, it is also true that, under our system of free enterprise, the public policy of this state and this nation favors the fullest liberty of contract and the widest latitude possible in the disposition of one’s property, so long as no disposition is sought to be made contrary to public policy or express law and so long as the restraint is within reasonable bounds.”

Finding no error in the decree appealed from, it should be and it is hereby

Affirmed.

DREW, C. J., and TERRELL and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF TAMPA, a municipal corporation, Appellant, v. Roy C. YARICK, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
    Rehearing Denied Feb. 20, 1956.
   PER CURIAM.

Affirmed.


text:
    Mildred CARDONA, individually and as the only heir at law of Charles Cardona, deceased, Appellant, v. Salvatore CARDONA, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 1, 1956.
   PER CURIAM.

Affirmed.


author: HAMITER, Justice.

text:
    229 La. 142
    STATE of Louisiana v. Robert MONIX and Bobby Dale Russell.
    No. 42679.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    L. G. Campbell, Benton, for appellants.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Louis H. Padgett, Jr., Dist. Atty., Bossier City, for appellee.
   HAMITER, Justice.

On September 16, 1955, when called for arraignment, Robert Monix (alias Joe Bob Bennett and Billy Jack Barnett) and Bobby Dale Russell entered pleas of guilty to four separate charges of burglary. On the same day they received consecutive sentences of one year on each of the charges.

Six days thereafter the defendants. filed motions requesting a setting aside of the convictions and sentences and that 'they be permitted to withdraw the pleas of guilty previously entered and to substitute pleas of not guilty.

On September 26, 1955, the motions were called and tried, evidence in support thereof having been adduced, and were denied. The following day applications for a rehearing on the motions were filed, argued and overruled. Immediately, defendants reqttested and were granted the instant appeal.

Later on October 8, 1955, in petitions filed here (No. 42,644), the 'defendants sought the issuance of writs of habeas corpus under our original jurisdiction, they directing attention to the mentioned convictions, sentences and appeal, and alleging that on September 27, 1955, the Sheriff of Bossier Parish removed them to the Louisiana State Penitentiary “for the purpose of serving the sentences in said proceeding which is a direct violation of the right of suspensive appeal.” They prayed among other things, that under appropriate orders they be returned to the Bossier Parish jail and there held pending final disposition of the causes in which they were convicted and sentenced. We refused to grant the writs, assigning as reasons for the ruling that in the absence of extraordinary circumstances the court would not exercise its original jurisdiction.

Subsequently, defendants applied to the Twentieth Judicial District Court of West Feliciana Parish for the writs of habeas corpus, but the relief sought was denied. Thereupon, pursuant to their applications (Nos. 42,674 and 42,675 on the docket of this court), we issued under our supervisory powers writs of certiorari, together with rules to show cause which were made returnable heré on the same date that the instant appeal from Bossier Parish was scheduled to be heard. And when thé three matters were called for hearing all, in con-' solidated form,' were submitted on briefs without oral argument.

By the instant appeal there is presented for our consideration only the overruled ' motions in which the defendants sought a setting aside of their convictions and sentences and requested that they be permitted to withdraw their pleas of guilty and to substitute plfeas of not guilty.

According to LSA-R.S. 15:266, “The allowance or disallowance of the withdrawal of a plea of guilty, is within the sound discretion of the court.” However, appellants, in substantiation of their motions, here invoke and rely on the provisions contained in LSA-R.S. 15:266.1 reading: “Where a plea of guilty in felony charges is entered by any judge of the district courts within;forty-eight hours after the arrest and incarceration * * * the plea or sentence imposed shall be set aside and revoked upon motion filed by accused or his attorney in the court where the plea was entered, within thirty days after the entering of the plea or the imposition of sentence thereon.” And counsel for appellants to quote from his brief,, argues:

“The uncontroverted evidence shows that the defendants in this cause were apprehended in the State of Oklahoma. After waiving extradition, they were returned to the State of Louisiana, arriving in Bossier Parish at 1:00 o’clock, A.M., September 15, 1955, when they were ‘booked’ and incarcerated in the Bossier Parish Jail. * * *
“It is submitted that the record unquestionably shows these defendants to have entered pleas of guilty within 48 hours of their arrest and incarceration. * * * The Court minutes show they entered pleas of guilty on the 16th day of September and were immediately sentenced and judgments signed and filed. * * *”

This argument overlooks the important fact, also disclosed by the record, that these defendants were taken into custody and held under formal arrest not later than September 13, 1955, by Tulsa, Oklahoma, authorities. Thereafter the prison<ers, while 'still under arrest and having waived extradition, were returned to this' ■state by the Bossier Parish officers. It appears, therefore, that a period of more than 48 hours elapsed between the date of arrest and incarceration of defendants and their pleas of guilty on September 16, 1955 as is required by the invoked' statutory provisions. We do not construe the 48 hour re■quirement of the statute as having refer- • ■ence only to an “arrest and incarceration” occurring in the parish in which the plea of guilty is entered. That it does so refer is not shown by any authority cited by defense, and we know of none.

Finally, in connection with their overruled motions, appellants contend here that since the sentences were imposed on them immediately following the entering of pleas of guilty there was a violation of LSA-R.S. 15:521 which recites: “In all criminal cases at least twenty-four hours shall elapse between conviction and sentence, unless the accused waive the delay and ask for the imposition of sentence at once * *

In State ex rel. Chicola v. General Manager of Louisiana State Penitentiary, 188 La. 694, 177 So. 804, 808, this court, in considering the quoted statutory provision, stated: “The word 'conviction,’ ordinarily, means a conviction by means of a plea of guilty, as well as a conviction in consequence of a trial by a judge or jury; but, as used in article 521 of the Code of Criminal Pro--cedure, the word 'conviction’ means conviction in consequence of a trial by a judge or jury. When an accused person' pleads guilty it is not necessary that he should' formally waive the delay of twenty-four hours, and ask for the imposition of sentence at once, in order to allow the judge to pronounce the sentence before the expiration of the twenty-four hours. It suffices if the prisoner does not, ask for a delay when the judge asks him if he has any reason to urge why the sentence should not be pronounced. * * *” The Chicola case was cited with approval in State v. Hagen, 217 La. 833, 47 So.2d 557 and State v. Woods, 220 La. 162, 55 So.2d 902.

In the present proceeding the record discloses that the defendants, after having pleaded guilty, were asked by the judge if they were ready for sentence. The judge even suggested that “they didn’t have to be sentenced at that time.” They sought no delay. In fact they requested immediate sentencing. Under these circumstances the 24 hour requirement under consideration was' not violated.

We conclude, therefore, that the trial judge committed -no error in his rulings on the defense motions urged here. And this conclusion renders moot the questions raised in the above mentioned habeas corpus proceedings (Nos. 42,674 and 42,675 on the docket of this court), thereby making a consideration of them unnecessary.

'For the reasons assigned the judgments appealed from are affirmed.


text:
    229 La. 150
    STATE of Louisiana v. Bobby Dale RUSSELL.
    No. 42674.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    L. G. Campbell, Benton, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Richard Kilbourne, Dist. Atty., Clinton, for appellee.
   HAMITER, Justice.

For the reasons assigned in State of Louisiana v. Monix, La., 85 So.2d 243, on the docket of this court and this day decided by us, the herein issued writ of certi-orari is vacated and the rule to show -cause is discharged.

      . 229 La.-.


text:
    229 La. 150
    STATE of Louisiana v. Robert MONIX.
    No. 42675.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    L. G. Campbell, Benton, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Richard Kilbourne, Dist. Atty., Clinton, for appellee.
   HAMITER, Justice.

For the reasons assigned in State of Louisiana v. Monix, La., 85 So.2d 243, on the docket of this court and this day decided by us, the herein issued writ of certi-orari is vacated and the rule to show cause is discharged.

      . 229 La. -.


author: MOISE, Justice. HAMITER, Justice

text:
    229 La. 151
    Chester HUNTER et al. v. John B. HUSSEY, Commissioner of Conservation.
    No. 42581.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Locke, Locke & Purnell, Dallas, Tex., Blanchard, Goldstein, Walker & O’Quin, Shreveport, for plaintiffs-appellants.
    Winston B. Linam, Shreveport, Leo J. Hoffman, Dallas, Tex., Cook, Clark, Egan, Yancey & King, Shreveport, for defendant and appellee-appellant.
   MOISE, Justice.

The issue for determination is one of jurisdiction. In connection therewith, we will examine—

First: Article VII, Section 10, of the Constitution of Louisiana of 1921— LSA;
Second: The Revised Rules of the Louisiana Supreme Court adopted in 1952;
Third: The recent decisions of the Louisiana Supreme Court on the subject; and

Fourth: The governing authority of the pleadings — plaintiffs’ prayer for relief.

Plaintiffs’ prayer for relief reads:

“Wherefore, petitioners pray that the Honorable John B. Hussey, Commissioner of Conservation of the State of Louisiana, be duly cited to appear and answer hereto; and that after due and legal proceedings had, there be judgment herein decreeing Order No. 96-G, dated December 2, 1952, issued by the Honorable S. L. Digby, Commissioner of Conservation, as amended by unnumbered order dated February 16, 1953, issued by the Honorable John B. Hussey, Commissioner of Conservation, and Order No. 96-J, dated November 18, 1953, issued by the Honorable John B. Hussey, Commissioner of Conservation, to be null and void; and perpetually enjoining the said John B. Hussey, Commissioner of Conservation, from in any way enforcing or attempting to enforce said orders or any part thereof, and from issuing an allowable to any developed tract which does not have storage tank so that production of well can be gauged or measured; * * *

Order 96-G of the Commissioner of Conservation authorizes a program of pressure maintenance under certain unitization agreements, approves such agreements, and approves and authorizes the unitization provided therein, as to the parties thereto, all pertaining to a certain zone underlying the Delhi Field, Richland, Franklin, and Madison Parishes.

Order 96-J of the Commissioner of Conservation provides for the transfer of allowables and a pressure maintenance program.

In Article XVII of their petition, plaintiffs allege that Order 96-G is null and void and contrary to the Conservation Statute of the State of Louisiana, LSA-R.S. 30:1 to 20, both inclusive, for the following reasons:

“Said order, as amended, and the acts performed or threatened thereunder :
“(a) Cause net drainage ■ from developed areas low on structure to developed areas high on structure, and particularly that the water injection program will drive oil from under the property owned by petitioners, which is located low on structure, and thus deprive petitioners of the opportunity of producing said oil;
“(b) Unitizes all or a portion of an oil field;
“(c) Unitizes several separate pools;
“(d) Is discriminatory in that it does not apply to all persons in the same situation and actually affects certain interests in a developed tract or tracts and does not affect other interests in the same tract or tracts;
“(e) Allocates to a producer in one pool oil produced from another separate pool or pools and fails to make reasonable adjustment or any adjustment at all upon structural position and fails to take into account producer’s ‘just and equitable share of the oil’ and fails to prevent or minimize reasonably avoidable net drainage from each developed area and does not proceed upon any reasonable basis.”

Plaintiffs further allege that Order 96-J is null and void for the same reasons set forth above and for the further reason that it is arbitrary.

Plaintiffs alternatively allege that the orders violate Section 2 of Article I of the Constitution of the State of Louisiana, in that they deprive plaintiffs of their property without due process of law and just compensation.

The district court rejected plaintiffs’ demand, and they appealed. To be helpful to the courts, the Conservation Commissioner, likewise, appealed. In each instance, the appeal bond was fixed in the sum of $250.

Article VII, Section 10, of the Constitution of Louisiana of 1921 grants jurisdiction to this Court in seven different c'asses of cases enumerated as follows:

“1. Civil Cases : That includes civil suits where the amount in dispute or the fund to he distributed, irrespective of the amount therein claimed, shall exceed $2,000.00 exclusive of interest, except
“(a) Suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his legal heirs or his legal representatives arising out of the same circumstances.
“(b) Suits for compensation under the State or Federal Workmen’s Compensation Law.” (Emphasis ours.)'
“2. Domestic Relation Cases and Cases Relating to Persons: These include suits for divorce or separation from bed and- board, suits involving alimony, those for the nullity of marriage, for interdiction, those involving the tutorship of minors, or curatorships of interdicts, or those involving the legitimacy or custody of children, and all matters of adoption and emancipation.
“3. Cases Involving the Constitutionality or Legality of Taxes, etc.: Suits wherein the constitutionality or legality of any tax, local improvement assessment,' toll or impost levied 'by the State, or by any parish, municipality, board or subdivision of the State is contested.
“4. Cases Involving the Constitutionality or Legality of Fines, etc.: Suits in which the Legality or -constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the State shall be in contest whatever may be the amount thereof.
“5. Cases Involving the Constitutionality of Ordinances, Laws, etc.: These include suits wherein an ordinance of a parish, municipal corporation, board, or subdivision of the State, or a law of this State has been declared unconstitutional. (Emphasis ours.)
- “6. Homestead Exemption Cases: This includes suits involving homestead exemptions, irrespective of the amount involved except in cases involving only movable property.
“7. Criminal Cases: These include suits involving criminal cases, on questions of law alone, whenever the penalty of death or imprisonment at hard labor may be imposed or where a fine exceeding $300.00 or imprisonment exceeding six months has been actually imposed.”

A recent constitutional amendment, art. 14, § 15(0), grants jurisdiction to this Court on appeals in Civil Service suits.

This suit certainly does not come within any of the above enumerated classes of cases. It certainly does not come within the first class, because there is no money amount in dispute or a fund to be distributed. To grant relief where no monetary judgment is prayed for or attempt to distribute a fund where no fund is in contest would be a plain usurpation of authority. In fact, on the -first page of their brief, plaintiffs themselves characterize this as “a suit to have decreed null and void and to enjoin the enforcement of two orders issued by the Commissioner of Conservation”

Rule X, Section 2, of the Revised Rules of .this Court provides that appellant’s brief must affirmatively show jurisdiction in this Court. In the instant case, a mere declaration is made in the brief of plaintiffs-appellants that—

“The value of the production so. reallocated and distributed by such orders is many times $2,000.00. In addition, the value of the leasehold and mineral interests owned by plaintiffs in the field and the production attributable thereto, which is adversely affected by such orders, is many times $2,000.00.” (Emphasis ours.)

That statement is merely conjectural; it is not even sworn to. Under old decisions we tolerated the effort to confer jurisdiction by affidavit as to amount involved. However, after the adoption of the Revised Rules of this Court in 1952, we stated, in the case of Duplantis v. Locascio (Locascio v. Duplantis), 223 La. 11, 64 So.2d 624, Justice McCaleb being the -organ of the Court:

“While it is true, as stated by counsel for appellants, that this court has in the past approved the filing of affidavits here to supplement a record which failed to affirmatively show that the amount in dispute was within •our appellate jurisdiction, it was decided that, after January 1, 1952 when ■our Revised Rules became effective, ■we zvould no longer continue this practice zohich zve deemed to be inappropriate for the reason that the court, except in certain cases, is not one of ■original jurisdiction, being bound by the record as made up' below.” (Emphasis ours.)

The value of the collateral issue which may affect the orders sought to be annulled may have to be proved, because of the harm and effect of the orders. This is done' on collateral questions which must be determined in order to decide the dispute involved, but it does not govern the appellate jurisdiction. See Richardson v. Charles Kirsch & Co., 191 La. 991, 187 So. 1; also, Heard v. Monroe Sand & Gravel Co., 165 La. 925, 116 So. 386. We find the Succession of Solari, 218 La. 671, 50 So.2d 801, 802, somewhat a kindred matter. There we held:

“We pointed out only recently that this Court will not ordinarily take appellate jurisdiction over suits for declaratory judgment unless the case is one which falls within the classification set out in Article 7, Section 10 of the Constitution. First National Life Insurance Co. v. City of New Orleans, La., 48 So.2d 145. The present appeal is governed by the provision in this article of the Constitution which gives this Court jurisdiction in civil suits where the amount in dispute or the fund to be distributed exceeds $2,000, exclusive of interest. * * * Opelousas-St. Landry Bank & Trust Co. v. Fontenot, 173 La. 430, 137 So. 339, * * *."

The very recent case of Johnson v. Nora, 228 La. 603, 83 So.2d 643, should be decisive of the matter herein. Justice Hawthorne, organ of the Court, made the following pronouncement:

“ * * * The record in the instant case does not affirmatively show that the value of the right here in contest exceeds $2,000, and consequently this court is without appellate jurisdiction. Art. 7, Sec. 10, La.Const, of 1921.
“In arguing that this court has jurisdiction of the instant appeal counsel for appellant rely on the fact'that during the trial on the merits appellant was asked: ‘Now, has this lawsuit put you to any expense, Nora?’ In answer to this qttestion appellant enumerated his attorney’s fees and certain expenses he had incurred, and then continued: ‘I estimate about seven or eight thousand dollars knock on my place of business’ We do not think this statement alone is sufficient to confer upon us appellate jurisdiction. It is not an affirmative showing that the right in dispute exceeds $2,000, but is merely a conjecture or speculation by the 'defendant, and there is no proof •whatever in the record in support of ’this estimate.” (Emphasis ours.)

The objective sought in the instant case is “to have decreed null and void and to enjoin 'the enforcement of two orders issued by the Commissioner of Conservation.”

In Beene v. Pardue, 223 La. 417, 65 So.2d 897, the Court used such strong language “so that those who run may read.” It said:

“ * * * before jurisdiction on the basis of the amount in contest or dispute will be entertained, the record in each case must affirmatively show what the amount is and also, that it is the amount in dispute at the time the case is submitted to the trial court that determines jurisdiction. [Italics and underscore ours.] * * * Stipulations such as the one entered into in this case after judgment will not be considered when tendered to support appellate jurisdiction”. (Emphasis ours.)

In the Beene case, supra—

“ * * * The land involved between the disputed lines consists of a strip approximately 80 x 1320 feet.
“After trial in the district court, judgment was rendered on March 10, 1952, fixing the boundary and on March 21, 1952, the judgment so rendered was signed.
“On the same day that the judgment was signed, all parties to the suit entered into a stipulation to the effect that the property involved had a value in excess of $5,000. Five days later, that is, on March 26, 1952, an appeal was taken to this Court. After the appeal had been perfected, affidavits executed by four individuals alleged to be familiar with the property involved were filed in this Court, all to the effect that it had a value of more than $2500.”

In the above case the Court then gave effect to the pronouncement made in Duplantis v. Locascio (Locascio v. Duplantis), 223 La. 11, 64 So.2d 624, and said:

“ * * * the Court will not give consideration to affidavits as to the value of the property involved in the suit for the purpose of fixing appellate jurisdiction for the reason that this Court, being one of appellate jurisdiction only, except in certain specified cases, is restricted to a study and review of the record as made up in the Court a qua.”

Even before the confection of our Rule X (which is explicit on the subject), we held, in the case of State v. Cook, 197 La. 1027, 1036, 3 So.2d 114, 117:

“ * * * It is the subj ect matter that is in contest before and at the time when the judgment is rendered in the court of original jurisdiction that determines what court if any has appellate jurisdiction in a given case.”

The Court then goes on to say that it is the same' — ■

“ * * * as if the amount paid or remitted, or the amount of the debt admitted, had never been sued for. State ex rel. Western Union Telegraph Co. v. Judge, 21 La.Ann. 728; Zacharie v. Lyons, 22 La.Ann. 618; Girardey v. City of New Orleans, 26 La.Ann. 291; Stubbs v. McGuire, 33 La.Ann. 1089; Denegre v. Moran, 35 La.Ann. 346; Guidry v. Garland, 41 La.Ann. 756, 6 So. 563; State ex rel. Boyet v. Boone, Judge, 42 La.Ann. 982, 8 So. 468; State ex rel. Beauvais v. Judges, 48 La.Ann. 672, 19 So. 617; Kaufman v. Sheriff, 107 La. 144, 31 So. 626; State ex rel. Taylor v. Judges, 107 La. 784, 32 So. 186; Begg v. Maloney, 125 La. 804, 51 So. 905; Borde v. Lazarus, Michel & Lazarus, 127 La. 122, 53 So. 465; In re Petit & Boh Co., 128 La. 163, 54 So. 705; Wolf v. Thomas, 137 La. 833, 69 So. 269; Crawford, Jenkins & Booth v. Fisher, 144 La. 129, 80 So. 224; Crowell & Spencer Lumber Co. v. Lynch, 157 La. 21, 101 So. 797; Nelson v. Continental Asphalt & Petroleum Co., 157 La. 491, 102 So. 583; A. Baldwin & Co. v. McCain, 159 La. 966, 106 So. 459; City of New Orleans v. New Orleans C. & B. Towboat Co., 168 La. 1093, 123 So. 724; Steeg Printing & Publishing Co. v. Auto Lec Stores, 172 La. 565, 134 So. 746; Chickasaw Wood Products Co. v. Vail-Donaldson Co., 173 La. 59, 136 So. 87; Givens v. Yazoo & M. V. Railroad Co., 173 La. 372, 137 So. 66; Hanover Fire Insurance Co. v. Southern Amusement Co., 176 La. 631, 146 So. 316; H. A. Bauman, Inc., v. Tilly, 188 La. 531, 177 So. 657. Accordingly, if any issue or contest which is essential to give the Supreme Court appellate jurisdiction over the case in which the issue or contest was presented is eliminated before the case is submitted to the court of original jurisdiction for decision, the Supreme Court will not have appellate jurisdiction over the case.”

Since our law requires that the record in each case must affirmatively show what the amount is, and, also, that it is the amount in dispute at the time the case is submitted to the trial court that determines jurisdiction, this case is ordered transferred to the Court of Appeal, First Circuit; provided the record is filed in that court within thirty days from the date on which this decree becomes final, otherwise, the appeal shall be dismissed. The appellant is to pay the cost of this appeal to the Supreme Court, and all other costs are to await the final disposition of the case.

HAMITER, Justice

(dissenting).

The record in this cause affirmatively ... ., . ,, . , r ,. discloses that the two orders of the Conservation Commissioner, assailed by plaintiffs and sought to be annulled, directly affect almost the entirety of the proven Delhi oil field which is large in extent (approximately 12y2 miles long and from one-half to 2% miles wide) and contains innumerable producing wells. To me, therefore, the conclusion seems inescapable that the value of the rights in dispute herein greatly exceeds the appellate jurisdictional minimum of this court.


author: HAWTHORNE, Justice.

text:
    229 La. 165
    LOUISIANA POWER & LIGHT COMPANY v. Mrs. Frances Parks SIMMONS et al. and Mrs. Bessie McInnis et al.
    No. 40572.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Armand F. Rabun, Farmerville, Theus, Grisham, Davis & Leigh, Monroe, for plaintiff-appellant.
    Oliver & Oliver, A. E. Montgomery, Jr., Monroe, for defendants-appellees.
   HAWTHORNE, Justice.

Louisiana Power & Light Company instituted two suits in the Third Judicial District Court to expropriate a right of way 100 feet wide for-the construction of transmission lines carrying 110,000 volts of electricity. The transmission lines were to lead from plaintiff’s generating plant near Sterlington, Louisiana, in a westerly direction to an electric substation to be located near Arcadia, Louisiana. Suit No. 13,134 on . the docket of the district court was. brought against Mrs. Frances Parks Simmons and others, and Suit No. 13,135 against Mrs. Bessie Mclnnis and others. Although the suits were consolidated for trial in the lower court, two separate judgments were rendered. In each suit the lower court awarded to plaintiff the right of way sought across the lands of the defendants. In the Parks suit the court awarded" to the defendants as compensation and damages the sum of $2,076.74, and in the Mc-lnnis suit the sum of $758.12.

Plaintiff has appealed seeking a decrease in the amount awarded to the defendants in each suit, and defendants in both suits-have answered the appeal. In this answer they denied that Louisiana Power & Light Company was entitled to the right of way because the route selected was not the most direct one, and the selection was arbitrary and in bad faith. They apparently have abandoned ■ this contention, however, and now seek only an increase in the awards made to them by the district court.

The right of way granted to the plaintiff crosses three separate tracts of land owned by the defendants Mrs. Frances Parks Simmons and others, designated as Parks A, B, and C, and crosses one tract of land owned by Mrs. Bessie Mclnnis and others, designated as the Mclnnis Tract. The right of way in Parks Tracts A and B is approximately 1,800 feet in length; in Parks Tract A the area of land within the right of way is 1.96 acres, and in Parks Tract B, 2.13 acres. The right of way across Parks Tract C is approximately 1,250 feet long, and the area of land within this right of way is 2.75 acres. The right of way across the Mclnnis Tract is approximately 900 feet in length, and the area of land within this right of way is 1.99 acres. In his reasons for judgment the trial judge computed the amounts due to these respective defendants as a result of the expropriation as follows :

To defendants Mrs. Frances Parks Simmons et al.: Parks Tract A: He awarded $1,046.11, which included $500 per acre for 1.96 acres (the area within the right of way), an allowance for the value of the merchantable -timber removed to clear the right of way, and a 25 per cent allowance for the future growth of the timber not then merchantable. Parks Tract B: He allowed $688.29, which included $250 per acre for 2.13-acres, an allowance for the value of the merchantable timber, and a 25 per cent allowance for the future growth of the young timber. Parks Tract C: He awarded $342.34, which included $100 per acre for 2.75 acres, an allowance for the value of the merchantable timber, and a. 25 per cent allowance for the future growth of the young timber. Thus the total award to these defendants was $2,076.74.

To defendants Mrs. Bessie Mclnnis et al.: The Mclnnis Tract: The total award was $758.12, which included $350 per acre for 1.99 acres, an allowance for the value of the merchantable timber, and a 25 per cent allowance for the future growth' of the young timber.

•There is no dispute between the parties to these appeals as to the quantity, kind, and unit price of the merchantable timber which it was necessary to cut in order to clear the right of way. In the calculation of the amounts due for this timber, however, there were errors which we will correct.

Louisiana-Power & Light Company, however, strenuously urges that the district judge erred in making any allowance “for the young timber which in a few years would be merchantable except for the clearing of the right-of-way”. This contention is sound.

We are mindful of the fact that of two tracts of land of the same kind and character, one denuded of all timber and the other covered by young growth, the tract with the young timber certainly has a present higher market value than the denuded land. However, there is no evidence whatever to support such an award in the instant case. In an expropriation suit the market value of the property and the damages growing out of the expropriation must be determined at the date of the institution of the 'expropriation suit, and not at some indeterminate time in .the future. Louisiana Highway Commission v. De Bouchel, 174 La. 968, 142 So. 142; State v. Landry, 219 La. 721, 53 So.2d 908. Furthermore, an award for damages calculated in the manner used by the trial judge here appears to us to be entirely too remote and speculative, and consequently this award will have to be disallowed.

Under the jurisprudence of this court the measure of compensation to be awarded in expropriation proceedings is generally the market value of the property —that is, the price paid in a voluntary sale between a willing seller and purchaser, Furthermore, in determining this market value, sales of similar property in the vicinity are most important. Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541; State, Through Department of Highways v. Hebert, 227 La. 111, 78 So.2d 528; Caddo Parish School Board v. Bland, 228 La. 393, 82 So.2d 687. It is equally well settled that in suits of this kind the most profitable use to which the land can be put by reason of its location, topography, and adaptability will be considered as bearing upon its market value. Louisville & N. R. Co. v. R. E. E. De Montluzin Co., 166 La. 211, 116 So. 854; City of Shreveport v. Abe Meyer Corporation, 219 La. 128, 52 So.2d 445, and numerous authorities therein cited.

With the above principles of law in mind we will now discuss the value of the property expropriated in the present suit.

The tracts designated as Parks A, Parks B, and Mclnnis are situated, on the west side of the Ouachita, River in Union Parish, approximately one-half mile west of the town of Sterlington. According to the record, Sterlington had a population at the time this suit was filed of about 1,700 people, and there were several large industries located there, among these being Louisiana Power & Light Company (appellant herein), Commercial Solvents, Thermotomic Carbon, United Gas, Arkansas-Louisiana Compressor Station, -and United Carbons. These industries employed some 700 or 800 persons, a large number of whom lived in or near Sterlington. The population of this community had increased substantially in the past 10 years, and the value of the property there had also increased since the war. Commercial Solvents, according to the record, was going to make improvements to its property costing approximately $20,000,000, which would give employment to an additional 150 or 200 persons. Louisiana State Highway No. 11 from Sterling-ton to Farmerville crosses the southwest corner of the Mclnnis Tract, and the tract designated as Parks A adjoins the Mclnnis Tract on the north. Parks Tract B lies a short distance south of this highway and between it and the old Farmerville-Bastrop gravel highway.

The suitability of these three tracts for residential or subdivision purposes at the time this suit was filed is fully established by the record in this case, and this factor must be considered under our jurisprudence as bearing upon their market value. Plaintiff offered some testimony during the trial that these tracts had a value of from $20 to $40 per acre, but the witnesses who set these values treated the property as ordinary cut-over lands, and plaintiff now concedes in this court that under our test of suitability and adaptability these properties have a value of not less than $200 per acre. The record also discloses that around 1949 Elizabeth Harris sold two lots of one-half acre each for $250 per lot. The property she sold was in the vicinity of Parks Tract A and the Mclnnis Tract, although somewhat farther west from Sterlington. It is true that these lots were located near the junction of the Farmerville-Sterlington blacktopped highway and the old Farmer-ville-Sterlington gravel road, a fact which may have increased their value. However, Parks A and the Mclnnis Tract are a great deal nearer to the Town of Sterlington than the above half-acre lots, and defendants offered the testimony of numerous witnesses familiar with real estate values in this vicinity who valued these tracts at from $200 to $500 per acre.

The trial judge found that Parks A had a value of $500 per acre, stating in his reasons for judgment that this property was located on an improved highway. The judge was evidently confused, as Parks A is not on a highway, but is immediately north of the Mclnnis Tract, the southwest corner of which is crossed by the Sterling-ton-Farmerville blacktopped highway. Evidently the judge in making this award had in mind the Mclnnis Tract. Under the circumstances we think that the award of the trial judge as to Parks A is somewhat excessive. Accordingly we find the value of this tract to be $350 per acre, and the amount which should be awarded for the 1.96 acres of this tract within the right of way is therefore $686.

As to the Mclnnis Tract, we think that a value of $400 per acre would do justice between the parties, as this tract does have a considerable frontage on an improved highway, which Parks A does not, and for this reason in our view this tract has a greater value. We will accordingly increase the award of the trial judge of $250 per acre for this tract to $400 per acre, or a total of $796 for the 1.99 acres included within the right of way expropriated by the plaintiff.

As we have pointed out earlier in this opinion, Parks B is located between an improved blacktopped highway and the old Bastrop-Farmerville gravel road. About three years before the institution of this suit the owners of Parks Tract B had it surveyed and laid out into lots. However, the plat was never filed for record, and no sales were made from it. Consequently we do not consider this tract to be an existing subdivision, and the mere fact that this survey was made does not in any way increase the present market value of the property. During the years 1943-1945, however, several sales were made from this tract, or from other lands owned by these defendants adjoining this tract, at prices ranging from $400 per acre to $1,200 per acre. It is true that in each of these sales there was a house or shack on the property sold, but in the case of the two sales at $1,200 per acre there is testimony in the record that the owners of the property had purchased two houses for $125 each which they moved on these lots prior to the sales. We realize that these sales are remote in time and that due to the houses on the lots they do not fix a value with certainty on' the remaining portion of the tract which was unimproved. However, the evidence in this record conclusively shows that when this suit was brought the value of property in the vicinity of Sterlington had substantially increased since these sales were made. Appellant contends that these two lots which brought the highest price were located on the lower end of the Parks land of which Parks B forms a part, facing or near the Farmer-ville-Sterlington highway, and that, due to the complete dissimilarity which exists between the lands here expropriated in Parks B and the improved lots described in these sales, the sale price of these properties should not be given any consideration by us. We have taken all these factors into consideration in arriving at the value of the property expropriated here. In addition to evidence of sales in the neighborhood, witnesses who were familiar with Parks B and the value of real estate in this area testified that this land had a value of from $500 to $800 per acre. One of the co-owners herself placed a value of $1,000 per acre on it. Taking all the above evidence into consideration, we think that a fair value for this Parks B property would be $500 per acre. Therefore, for the 2.13 acres of this tract included in the right of way the award will be $1,065.

Appellant in brief says that the lower court erred in basing its award of compensation for the right of way involved in the above three tracts, not upon the value presently possessed by the land for the use to which it is being put, but upon the speculative value of the land if it should in the future be used for residential purposes. The answer to this contention is that in computing the values as we have above we have arrived at the market value of the property at the time of the taking, considering its suitability for subdivisions and residential sites, and we think the* record amply supports us in this conclusion.

Parks C is.- located approximately four miles west of Sterlington and is a part of the Loch Lomond Plantation. The land lying within the boundaries of this tract was open and in cultivation at the time these suits were tried in the lower court, except for a small wooded portion along a bayou. Witnesses who testified at the trial valued this property at from $100 to $400 or $500 per acre. The trial judge fixed the value of this Parks C Tract at $100 per acre, which appellees contend we should increase to $200 per acre. After considering Jbe testimony we are of the view that the value fixed by the trial judge is somewhat low, and ordinarily we would increase it. However, taking into consideration that the right of way here expropriated is only a servitude and that the defendants will still retain some use of the property, which is agricultural land .and used to grow crops, we will accordingly affirm this award of $275 for the 2.75 acres comprising the area of the right of way expropriated in Parks C.

Appellant finally contends that the lower court committed error in awarding to these defendants the full fee value of the land expropriated for this right of way. It states that the right of way here expropriated is merely a servitude, and that under the judgment of the lower court the defendants retain full use of the property for any purposes which do not constitute a hazard to the electrical transmission lines, such as the growing of timber or the erection of some structure. It cites in support of this contention Texas Pipe Line Co. v. Johnson, 223 La. 380, 65 So.2d 884, 38 A.L.R.2d 785, where the plaintiff paid only one-third of the market value of the land expropriated for a right of way.

We have already taken into consideration in affirming the award of the district judge as to Parks' Tract C the fact that the right of way here expropriated is a servitude and that the defendants still retain some use of it, as this Parks C Tract is used for agricultural purposes. In fixing the present market value of Parks Tracts A and B and the Mclnnis Tract, however, we have taken into consideration the fact that these tracts are adaptable for subdivision or residential purposes. The construction of the 110,000-volt electric transmission lines along this right of way has completely destroyed the suitability of the area within the right of way itself for residential or subdivision purposes, as the owners of these tracts can never build any structure on the servitude itself. Moreover, these tracts are cut-over lands and are not being used for the growing of crops, and no timber can be grown within the area of the right of way. Consequently, for all practical purposes there is no difference between the value of the servitude and the value of the fee as to these three tracts. See Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636.

This identical contention was made in brief filed in this court in the case of Texas Pipe Line Co. v. Barbe and Moss, La.Sup., 85 So.2d 260. As a factor in determining the market value of the property actually expropriated in the Barbe and Moss case, its adaptability and suitability for industrial purposes was considered, and this court granted to the defendants there the full fee value of the property taken for the servitude. To feduce the award in the instant case for the right of way across these three tracts because it is only a servitude would be contrary to our holding in Texas Pipe Line Co. v. Barbe and Moss.

Appellees’ request for an increase in the award due to severance damages to the property adjoining the right of way is without merit, as there is no evidence in the record which in our opinion would justify such an award.

We shall now compute the awards, correcting the errors in the calculation of the value of the timber (over which there is no dispute as to the quantity, kind, and unit price) which had to be removed in clearing the right of way.

Suit No. 13,134, in which Mrs. Frances Parks Simmons et al. are defendants:

Suit No. 13,135, in which Mrs. Bessie Mclnnis et al. are defendants:

In Suit No. 13,134, Louisiana Power & Light Company v. Mrs. Frances Parks Simmons et al., the judgment is amended by increasing the amount awarded to these defendants to $2,262.61. Otherwise the judgment is affirmed.

In Suit No. 13,135, Louisiana Power & Light Company v. Mrs. Bessie McInnis et al., the judgment is amended by increasing the amount awarded to these defendants to $858.48. Otherwise the judgment is affirmed.

Louisiana Power & Light Company is to pay all costs of both suits.

FOURNET, C. J., absent.

      . In their answers filed in the lower court and in their answers to the appeal defendants in each of these suits sought to recover an amount in excess of $2,000.

      . Article 777 of the Civil Code provides that the owner of the estate which owes the servitude can do nothing tending to diminish its use or make it more inconvenient.

      . In that ease the expropriated land was being used for agricultural purposes, as is Parks O in the instant case.

      . Two rehearings were granted in the Barbe and Moss case to consider the question of severance damages to the remaining portion of defendants’ lands. However, the award for the value of the land taken was settled on first hearing, and the judgment in that case is final on this question.


text:
    229 La. 181
    BERNARD BROTHERS v. Lodias J. DUGAS.
    No. 41889.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Dugas, Bean, Bertrand & Smith, Lafayette, for defendant.
    Edwin W. Edwards, J. Lyle DeBellevue, Crowley, for plaintiff-appellee.
   HAWTHORNE, Justice.

Bernard Brothers instituted executory proceedings to sell property belonging to Lodias J. Dugas in the City of New Iberia in satisfaction of a demand mortgage note which it held. This note was executed by Dugas on July 14, 1952, for the principal sum of $31,200 with interest at the rate of 6 per cent per annum from date and 10 per cent attorney’s fees.

Prior to the sale Dugas brought in-junctive proceedings in which he alleged that he owed Bernard Brothers only $20,-000, as he had received from it only this amount, and that therefore there had been a partial failure of consideration for the note. In this petition Dugas also alleged that he had tendered to Bernard Brothers $20,000, with accrued interest, the amount he admitted to be due on the note. He prayed for and obtained a temporary restraining order.

After this petition for a preliminary injunction was tried on its merits, the lower court rendered in favor of Bernard Brothers, plaintiff in the executory proceedings and defendant in the injunction proceedings, a personal judgment against Dugas in the sum of $26,300 with interest at the rate of 6 per cent per annum from July 14, 1952, until paid plus 10 per cent of the aggregate amount of principal and interest as attorney’s fees. From this judgment Dugas, defendant in the executory proceedings and plaintiff in the injunction proceedings, appealed to this court.

Under the Negotiable Instruments Law of this state and the jurisprudence of this court, every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. R.S. 7:24; Moss v. Robinson, 216 La. 295, 43 So.2d 613, and cases there cited. For this reason, a plaintiff suing on a negotiable instrument is not required to produce any proof of consideration when he introduces the instrument into evidence, and this remains true in spite of the fact that the defendant in his answer may have alleged lack of consideration. Absence or failure of consideration is a matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto. R.S. 7:28. The burden is thus on the defendant of going forward with the evidence and rebutting the prima facie case in favor of plaintiff. However, if during the trial of the case the defendant offers evidence which casts doubt upon the reality or the amount of the consideration, the presumption that the note was given for value is rebutted, and the burden shifts to the plaintiff to prove consideration by a preponderance of the evidence. Moss v. Robinson, supra.

These principles of negotiable instruments law. are recognized by all parties to the instant suit, and with these principles in mind let us now analyze and discuss the evidence adduced.

Bernard Brothers is a partnership engaged in the automobile business in Rayne, Louisiana, and is composed of two brothers, Raleigh Bernard and Wilfred Bernard. For three or four days before the .execution of the note and mortgage in question, the parties to this suit had been discussing the proposed loan, and on the date of its execution Dugas and Raleigh Bernard went to the office of an attorney in New Iberia, where the note and mortgage were prepared and executed. No money was given to Dugas at this time. After the execution of this note and mortgage in New Iberia, Bernard Brothers’ Rayne attorney was called and informed that all parties would meet him in his office to complete the transaction. According to the Bernard brothers, later that afternoon all parties met in the Bernards’ Rayne office, and the two brothers at that time delivered to Dugas $6,300 in bills of large denomination which they had with them at the time. Then suddenly, according to the Bernards’ testimony, they realized that they were supposed to count the money before their Rayne attorney; accordingly they all went to his office, where $20,000 was counted out to Dugas in bills of large denomination. Dugas admits receipt of this $20,000, and it is not an issue in the case. He denies, however, having received $6,300 in Bernard Brothers’ place of business. After leaving the lawyer’s office the Bernards accompanied Dugas to the airport in Lafayette, where he bought a plane ticket. The Bernards say that they did not know where Dugas was going, but that one of them made a reservation for him at a hotel in Memphis for July 16, two days after the execution of the note.

According to the Bernard brothers, the consideration for the $31,200 note was: $6,300 in cash paid to Dugas in their place of business in Rayne; $20,000 given to Dugas in cash at their attorney’s office; and a Cadillac worth $4,900 which was to be delivered to Dugas in Memphis, Tennessee, but never was.

One of the Bernard brothers met Dugas in Memphis on or about July 16, and testified at the trial that he offered to deliver the Cadillac to Dugas at that time. However, prior to delivery he asked Dugas to pay him $4,900, the purchase price of the car. He stated that this had been agreed upon between them, and that upon the payment of this amount in cash he was to give Dugas credit for it on the note, but that the Cadillac was not delivered because Du-gas did not pay this sum. When this Bernard returned to Rayne, demand was made upon Dugas for payment of the note in full, and upon Dugas’ failure to make payment executory process was instituted on July 30, 1952, approximately two weeks after the date of the note’s execution.

According to their testimony it was necessary for the Bernard brothers to borrow $15,000 from their brother and sister in Texas to make this loan, and a few days before the note was executed this money was delivered to them in cash in Rayne. Although these brothers went to some trouble to secure the amount that they say they loaned to Dugas, they testified that they had no idea for what purpose Dugas wanted the money, nor was there any agreement as to when it would be repaid! They also testified that they made the loan to collect the interest which would become due on it and to make a profit of $500 on the sale of the Cadillac. If it was the interest with which they were concerned, it is strange that they demanded payment of the note only a few days after its execution. Moreover, although they are in the automobile business and not in the loan business, it seems odd that they would go to so much trouble to make a large loan just to realize the profit from the sale of an automobile. To us it also seems somewhat unusual for them to have delivered the loan in cash in bills of large denomination when they had no idea of the purpose for which Dugas wanted this large sum of money.

Dugas, on the other hand, testified that he wanted only $20,000 which he needed to make a “deal” in Cairo, Illinois; that he expected to make a quick profit from the Cairo transaction, and that Bernard Brothers was to receive a “cut” out of the profit; that, when he met one of the brothers in Memphis, he informed him that the Cairo “deal had fallen through”, and that “those gangsters took me for this money”. He stated that when he returned to New Iberia he told Raleigh Bernard he would repay the $20,000; that Bernard refused to accept this amount and insisted that he still wanted $31,200 in spite of the fact that the “deal” had fallen through. Dugas further testified that that portion of the note above $20,000 represented the brothers’ $5,000 “cut” if the Cairo “deal” was successful ; $5,500 he was to pay them for the Cadillac, and $700 in' clothing which he had also agreed to give them if the Cairo “deal” went well.

It is obvious that the testimony of the parties is in hopeless conflict. In our view no logical reason is given in the Bernards’ testimony to explain why $6,300 was handed to Dugas in private, whereas the remaining $20,000 was counted over to him in the presence of the lawyer. We cannot see why the Bernards should have wanted a witness to the payment of $20,000, yet at the same time were willing to give Dugas $6,300 in the privacy of their office.

The testimony in this case when considered as a whole makes it appear very doubtful that more than $20,000 was eveV delivered to Dugas by the Bernards. Therefore, the presumption that this $31j200 note was given 'for- full value no longer exists, and the burden has shifted to the Bernard brothers to prove by a preponderance of the evidence that full value was indeed paid by them for the negotiable paper. This they have not done to our satisfaction, 'and therefore they cannot recover more than $20,000 on this instrument. See Moss v. Robinson, supra.

As we said above, Dugas admitted in his petition for injunction that he owed $20,000 on the note, and alleged tender of this 'amount to the Bernards. In this court counsel for Dugas tell us that the Bernards are not entitled to 10 per cent attorney’s fees for the cost of collecting the note, as the action was unnecessary. This contention has no substance because there is no proof in the record in this case that Dugas timely made a legal or bona fide tender of $20,000 to the Bernards.

As this suit was tried on Dugas’ application for a preliminary injunction, the personal judgment rendered by the lower court was not responsive to the pleadings, and will liáve to be set aside. Masset v. Beckler, 224 La. 1067, 71 So.2d 570.

, The personal judgment appealed from is set aside. The case is remanded to. the district court, and thát court is directed to issue a writ of preliminary injunction preventing the collection in the executory proceedings of more than $20,000 with interest at 6 per cent per annum from July 14, 1952, 10 per cent thereon for attorney’s fees, and all costs of the executory proceedings. Bernard Brothers is to pay all costs of the injunction proceedings.

SIMON, J., recused.

      . In this connection we should like to point out that Bernard Brothers makes no serious contention that it is entitled to recover $4,900 of the $31,200 note, as the Cadillac was never delivered.