author: FOURNET, Chief Justice.

text:
    233 La. 67
    Mrs. Mary L. Schneider WINSBERG, Administratrix of the Estate of Hermand Woodward Winsberg, v. Mrs. Sarah Silverman WINSBERG, Mrs. Stella Winsberg Levy, Mrs. Jessie Winsberg Bluhm, and Winfred J. Winsberg.
    No. 43070.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Solomon S. Goldman, New Orleans, for defendants and relators.
    Arthur B. Hammond, Jr., New Orleans, for plaintiff and respondent.
   FOURNET, Chief Justice.

This suit was filed on behalf of the minor, Kathleen Hilda Winsberg, by her mother, as her tutrix, and as administratrix of the succession of the minor’s late father, Her-mand W. Winsberg, against her paternal grandmother and her uncle and aunts, heirs of Jacob Winsberg, the deceased father of Hermand W. Winsberg, for an accounting of h'er grandfather’s estate; and is now before us on a writ of certiorari to review the judgment of the Court of Appeal affirming the judgment of the District Court awarding to plaintiff the sum of $1,460. See 87 So.2d 362.

Jacob Winsberg died testate on May 8, 1937, leaving all he died possessed of, consisting wholly of community property, to his wife, Mrs. Sarah Silverman Winsberg. Surviving him also were two daughters, Mrs. Stella Winsberg Levy and Mrs. Jessie Winsberg Bluhm, and two sons, Winfred J. Winsberg and Hermand Woodward Winsberg, all born of the union. His estate consisted of certain movable property and immovable property, the latter bearing municipal numbers 4304-06 Magazine Street in New Orleans, where Winsberg’s Store was conducted — a small enterprise engaged in the sale of shoes. The legacy to the widow having been reduced to the disposable one-third, the heirs were placed in possession of the estate by judgment of court, the widow being recognized, as surviving spouse in community, to be the owner of an undivided half and, as legatee, to be entitled to ownership of an undivided two-twelfths of all property left by the decedent; and the four children being recognized as his sole heirs at law and entitled as such to the, ownership each of an undivided %2th of the said property. No mention was made of a usufruct in favor of the widow either in the will or in the judgment of possession. There was no actual division of the assets which, aside from the real estate, consisted mainly of the stock of shoes, fixtures, etc., contained in the store, and the business was continued by the son Winfred, assisted by his mother and sisters. Hermand took no part in the business; after completing law school he had moved to North Carolina where he was employed by a judge, and later as a salesman traveling the Carolinas for a shoe manufacturer. He was so engaged at the time of his father’s death and for a period thereafter, and on June 20, 1937, addressed a letter to his brother expressing the feeling that the business should be turned over to him (Winfred) by October 1st and offering to transfer his own one-twelfth interest without compensation therefor, acknowledging that he had already received from his father more than would be due him.

In 1939 the building which had housed the store, being in dilapidated condition, was demolished, and under Winfred’s leadership and supervision a new brick structure was built with proceeds of life insurance received by the widow, Sarah S. Winsberg. At that time an informal partnership agreement was had between the mother, her son Winfred, and the two daughters; inventories were to be increased, lines of ready-to-wear were to be added to shoes. Under the new organization a profit was consistently shown, this being principally devoted to increasing the stock and to expanding; about four years later, when the inventories were considered to be sufficiently large, the profits were used for the purchase of assets in the names of the respective partners. In the summer of 1945 Hermand was released from service in the Army and Winfred, wishing to get out of the store and go into the business of wholesale selling of shoes, encouraged Hermand to take over the store.

Hermand then undertook a division and settlement of the movable assets of his father’s succession, as reflected by a memorandum statement in his own handwriting. According to his figures, which he submitted as the basis for an auditor’s report dated December 31, 1945, Jacob Winsberg’s share of the community, including the real estate, had a value as of the date of his death of $18,423, of which the widow’s interest was one-third and that of the heirs one-sixth each. Another schedule in the same report, prepared from figures gathered and evaluated by Hermand, showed a complete inventory of the family’s worth, indicating total assets of $234,995.27, with movable assets held in the name of each of the children, Hermand having received $5,556, Winfred, $67,438.77, Stella, $23,893, and Jessie, $24,-412.50. From these amounts were subtracted the inheritance of each child from the father’s succession ($3,070.50), leaving various sums to the credit of each. It is pertinent to note that Hermand showed his mother to be the owner of the real estate at 4304 — 06 Magazine Street as well as half of the cash in bank and on hand (the other half being shown as Winfred’s), and of all the store’s merchandise and fixtures.

Hermand also proposed that he and his sisters should form a partnership to run the business, and he drew up an agreement, dated February 1, 1946, in which Mrs. Sarah S. Winsberg sold to him and his two sisters in equal, undivided shares, “the business she operates at 4304-06 Magazine Street, New Orleans, La., known as ‘Wins-berg’s,’ as a going concern,” for the consideration of $60,323.62, “entirely on credit, and with the understanding that such purchasers shall never be required to pay any part of the purchase price during the lifetime of the said Mrs. Sarah S. Wins-berg, .but that the debt shall immediately mature upon their mother’s death and thereupon each purchaser shall be required to account therefor, without interest, by collation to their co-heirs in the succession of their mother, each for one-third of the said purchase price. Contemporaneously with the signing of this agreement, the said Mrs. Sarah S. Winsberg, as owner and usufructuary, has leased to the purchasers of the said business the real property wherein the business is conducted at 4304-06 Magazine Street, New Orleans, La. * * * ” (Emphasis supplied.)

On June 24, 1947, Hermand married the plaintiff herein; their child was born on May 5, 1948, a few months after his death which had occurred in February of that year. This suit followed on June 9, 1948, for an accounting of the estate of Jacob Winsberg for the period from May 8, 1937 (the date of his death) through December 31, 1945, the allegation being that Hermand never received his proportionate share “of the incomes, emoluments, salaries and other perquisites” of the said estate, “and more particularly his share from Winsberg’s Store.” Named as defendants were the mother, brother and two sisters, who in answer denied that any accounting was due plaintiff, averring that Hermand had received his full portion of the estate of his father and that he had no interest in the business known as Winsberg’s Store prior to January 1, 1946. At the close of the trial on the merits the Court ruled that plaintiff was only entitled to an accounting of the real estate for the period requested, and ordered the defendants to render such an accounting. The information was offered in a note of evidence subsequently taken— itemized rentals on the old building prior to 1939, on the new building thereafter, less taxes, insurance, maintenance and repairs— and counsel for defendants, without conceding that plaintiff was entitled to any sum whatever, agreed that if an amount were due it would be $1,460; it was stipulated between counsel that defendants waived any claim for interest to the mother upon her investment, and plaintiff waived any interest upon rents that “may have become due.” Judgment was then rendered against the defendants in solido for that sum and, as stated above, was affirmed by the Court of Appeal.

The sole question posed for our determination in reviewing the Court of Appeal decision is whether or not the share of the community real estate inherited by Her-mand Winsberg is subject to a usufruct in favor of his mother.

The plaintiff contends that under Article 916 of the Civil Code, as interpreted by this Court in the case of Forstall v. Forstall, 28 La.Ann. 197, the property passed to the children in full ownership; and in any event the defendants, who accepted purely and unconditionally the succession of Jacob Winsberg, are concluded by the judgment therein decreeing the widow to be owner of an undivided two-twelfths of the property left by the deceased in addition to her interest as surviving spouse in community, and the children to an undivided one-twelfth each, there being no mention of usufruct anywhere in their own pleadings or the judgment; and since the widow was instrumental in obtaining the judgment on the basis alleged in her petition, she renounced all rights in conflict with the judgment for which she prayed and is estopped from attacking that judgment, citing Civil Code Article 2291 and jurisprudence of this Court. The defendants, on the other hand, admitting that the Forstall decision is squarely against the proposition for which they contend, i.e., that the widow did acquire the usufruct of the children’s share, say that in effect the Forstall case was overruled by the later case of Succession of Moore, 40 La.Ann. 531, 4 So. 460.

It is apt to observe that the facts of the case under consideration here, for all intents and purposes, are identical with those in the case of Forstall v. Forstall, cited supra. There, as in the case at bar, the deceased husband had disposed in favor of his surviving widow by last will and testament of his share of the community property; the heirs at law (more than three surviving children born of the union) contended they were entitled to have the legacy reduced to one-third and to receive the other two-thirds in full ownership, while the widow contended that she was entitled to the usufruct of the two-thirds reserved by law to the issue; and this Court held the surviving widow was not entitled to the usufruct, reasoning: “Article 916 must be construed with article 1493. Taken together, the meaning is: Where there has been no testamentary disposition of the disposable share of the predeceased husband or wife in the community property, the survivor shall be entitled to a usufruct during his or her natural life of so much of the share of the deceased in such community property as may be inherited by such issue. The condition upon which the survivor shall have a usufruct is, that the predeceased husband or wife shall not have disposed of his or her share, that is the share that he or she was permitted by law to dispose of. In the case at bar the disposable quantum was one-third of the property of the deceased, and the surviving widow has acquired this in full ownership by testamentary disposition. If the usufruct of the share of the deceased was more desirable than the full ownership of one-third thereof, the surviving widow could have renounced the legacy. As she prefers the rights acquired by the will to those accorded to her by law she has no cause to complain. She can not hold both." (Emphasis ours.)

But this Court in the case of Succession of Moore, supra, refused to follow the rationale in the Forstall decision, and while stating that the rule there announced could not be invoked as a precedent because of the different facts of the Moore case (where, by will, the wife was given the usufruct of all the husband’s property, and, by codicil thereto, was bequeathed the disposable portion), nevertheless embarked on an exhaustive reexamination and reconsideration of the pertinent articles of the Code as well as all the prior jurisprudence, and in a very carefully considered opinion gave an interpretation to those articles that had the effect of overruling the Forstall case, squarely holding “that a spouse in community can legally bequeath to the survivor the disposable portion of his or her estate, as it always was known, and may confirm in his or her favor, the usufruct provided by law, either by remaining silent or by expressing himself clearly on the subject, the language used, whether a bequest or a ratification, being immaterial.” In the course of the opinion the Court branded as “untenable” the proposition, affirmed in the Forstall case, that where there is a will which diverts, from the issue the disposable part of the community property, so that the issue do not inherit the whole, the usufruct does not attach — observing that while a burden may not be placed on the share of the minors, by will, the usufruct was created not by the will but by the law itself, i.e., Article 916 of the Civil Code.

We think that the decision in the Moore case shows a well reasoned, exhaustive study and analysis of the subject, and is basically sound. It is perfectly clear that Jacob Winsberg did not in any manner dispose by testamentary disposition adversely to the usufruct created by law in favor of his surviving wife; in fact, he intended that she should have even more than the law allows. The contention that the defendants, having been instrumental in obtaining the judgment placing the heirs in possession, are estopped from attacking the same except for error in fact and are concluded by said judgment, is without merit. Such an es-toppel will not be maintained in the absence of a showing that the person urging it has been misled to his prejudice, and it is clear from the record that nothing was done by the mother pursuant to the judgment of possession that prejudiced Hermand’s interest in the real estate. In fact, Hermand specifically recognized his mother’s right to the usufruct by the recital in the instrument of February 1, 1946. We are therefore of the opinion that the District Court and the Court of Appeal were in error in their conclusion that plaintiff was entitled to be awarded an amount representing rent due Hermand for his interest in the realty from the time of Jacob Winsberg’s death through 1945.

For the reasons assigned, the judgments of the District Court and of the Court of Appeal are annulled and set aside and the plaintiff’s case is dismissed at her cost.

      . While Hermand was not a member of the partnership, in ease of illness or operations his expenses were taken care of, as were those of other members of the family in like circumstances, from the proceeds of the business; and while he was in the service his drafts for $40 a week were, honored by the brother, Winfred. It also appears that during Her-mand’s absence, shares in the Sixth District Building and Loan Association, amounting to $2,500, were bought in his name when the profits from the business were divided among the partners.

      . “In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament, of his or her share in the community property, the survivor shall hold a (in) usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.” Article 916, Civil Code of Louisiana.

      . The authorities relied on by plaintiff in support of her contention, i. e., Smith v. Nelson, 121 La. 170, 46 So. 200; Nolan v. Succession of New, 31 La.Ann. 552; and Succession of Kranz, 162 La. 546, 110 So. 750, are inapposite and therefore are not controlling. See the authorities cited in footnote 4, post.

      . Sanderson v. Frost, 198 La. 295, 3 So. 2d 626; Janney v. Calmes, 212 La. 756, 33 So.2d 510; and Tyler v. Walt, 184 La. 659, 167 So. 182.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    233 La. 81
    Dr. James M. CIARAVELLA v. Dr. Robert E. GILLASPIE.
    No. 43352.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Clarence F. Favret, Clarence F. Favret, Jr., New Orleans, for defendant-appellant.
    Henican, James & Cleveland, Murray F. Cleveland, Arthur C. Reuter, New Orleans, for plaintiff-appellee.
   HAWTHORNE, Justice.

The plaintiff, Dr. James M. Ciaravella, and the defendant, Dr. Robert E. Gillaspie, are the owners of adjacent lots in the City of New Orleans in Square No. 520 of the First District. Plaintiff’s lot is on Banks Street at the corner of South Johnson Street, and defendant’s lot also fronts on Banks Street. Defendant Dr. Gillaspie has appealed to this court from a judgment of the district court which granted to plaintiff Dr. Ciaravella a permanent injunction ordering the defendant to demolish and remove a wall on the South Johnson Street side of a building constructed by him on his lot. The district court found that the wall encroached upon the lot owned by plaintiff and did not meet the requirements of the Building Code of the city for a party wall.

During the trial of this case there were introduced and filed in evidence three different surveys of the line separating the lots, designated as the Gandolfo, Orr, and Seghers surveys. These surveys disclose that there is a difference in the location of the line at the front of these lots where it strikes Banks Street of one-eighth of an inch as between the Orr and Gandolfo surveys, and one-half of an inch as between the Orr and Seghers surveys. At the rear of the lots the difference is a little greater, but even there the difference is inconsequential. Since this is not an action in boundary, we are not called upon to determine which survey is correct. In any event, under all of these surveys the wall 12 inches in width constructed by defendant rests on the dividing line and encroaches to some extent on plaintiff’s lot. For the purpose of these proceedings the trial judge accepted the Orr survey, and we cannot say he erred. The wall constructed by defendant, according to testimony of surveyors in the record, has its center on the boundary established by the Orr survey. Defendant does not contend that the wall constructed by him does not encroach upon plaintiff’s property, but says he constructed it as a party wall.

There is a servitude imposed by law which, under Article 675 of our Civil Code, permits that “He who first builds in the cities and towns * * * of this State, in a place which is not surrounded by walls, may rest one-half of his wall on the land of his neighbor * *

The City of New Orleans has adopted a Building Code pursuant to the authority vested in it by Act 76 of 1910, R.S. 33:4751, which reads: “The governing body of any municipality of one hundred thousand or more inhabitants may adopt ordinances relating to the construction * * * of buildings, structures, walls, and party walls * * *. Such ordinances shall supersede any laws existing prior to 1910.”

It is plaintiff’s contention that the wall in question is a non-conforming' wall, or not a party wall, under the Building Code of this city.

In June of 1953 Dr. Robert E. Gillaspie submitted to the Department of Safety and Permits of the Division of Regulatory Inspections of the City of New Orleans plans and specifications for a one-story doctors’ office building to be constructed on his lot adjacent to plaintiff’s lot. The plans thus submitted delineated, and the specifications detailed, a party wall on each side of the building 12 inches in thickness and centered on the boundary line, one-half of the width of each wall to rest on Dr. Gillaspie’s lot and the other one-half to rest on the neighboring lot. The plans denoted these walls as party walls and contemplated that each wall would be constructed of concrete slag blocks. In due course the Department of Safety and Permits approved the plans, and a permit was granted to Dr. Gillaspie to construct the building according to these plans. Under the authority of this permit construction was begun, and the building was completed in the early part of 1954 for a cost of approximately $42,000.

About a year later, Dr. Ciaravella acquired the adjacent lot in a deed which, after describing the lot number and the square in which it was situated and the lot’s width and depth, provided: “All in accordance with survey of Adloe Orr, C. E., dated September 4, 1950, a blueprint copy of which is annexed to act of Elmer D. Flanders,' Notary Public, dated November 3, 1950.”

After acquiring the property Dr. Ciara-vella employed the services of a licensed architect to prepare plans and specifications for the construction of a one-story doctors’ office building. According to these plans and specifications, the wall of Dr. Gil-laspie’s building along the property line between the two lots was to be used as a party wall to which Dr. Ciaravella’s building was to be tied and on which it would bear. When in due course Dr. Ciaravella’s-plans and specifications were submitted to the Department of Safety and Permits, the department refused to issue a permit for the construction of a building using defendant’s wall as a party wall — in spite of the fact that it had previously approved the wall as such — because the wall did not meet the requirements of the Building Code for a party wall. This wall, 12 inches in width and constructed of concrete slag blocks, was not in compliance with Article 2937 of the Building Code which provides that “Party walls and fire walls of other than solid masonry must be faced with at least four inches (4") of brick on each side, bonded to the backing as required, and must have a thickness of at least four inches (4") greater than specified for solid masonry bearing walls”.

When the department denied Dr. Ciara-vella the permit sought, he instituted the present suit, alleging that the wall in question encroached on his property, and that it was not a party wall because it did not meet the requirements of a party wall of the city Building Code in that it was constructed of concrete slag blocks without four inches of brick on each side.

While the suit was pending — no doubt because the department had approved the wall as a party wall in its permit issued to Dr. Gillaspie but had denied a permit to plaintiff on the ground that the wall was a non-conforming party wall — , the matter was brought before the Board of Building Standards and Appeals, a board functioning under the authority of the New Orleans Building Code and composed of five members — a state registered architect, a state registered civil engineer, a member nominated by the Louisiana Rating and Fire Prevention Bureau, a licensed general contractor, and a qualified professional electrical or mechanical engineer. Under Article 402(3) of the Building Code, this board has the power and duty * * * to vary or modify the application of any of the regulations or provisions of such articles relating to the construction or alteration of buildings or structures or the use of land so that the spirit of this Code shall be observed, public safety and welfare secured and substantial justice done”.

After reviewing the case, the board approved the wall as to stability and fire resistance and suitability as a party wall sufficient to support both one-story buildings, and having found these facts, it waived the requirement for brick facing, as evidenced by excerpts from the minutes of the meeting of the board held on April 4, 1956. Furthermore, according to the testimony of the chairman of this board, “the functions of a party wall would be adequately fulfilled by this particular wall”. This witness further stated that the fire resistance of this wall was ample according to the code, that a wall of 12-inch slag blocks furnished the proper fire resistance, and that the wall was adequate as to stiffness and structural stability.

There is no conclusion that can be drawn other than that the superstructure of the wall, as distinguished from the foundation, had been approved as a party wall by the body which had power to make such approval. ■ According to plaintiff’s own admission he was fully acquainted with this fact. He himself says that he was informed by Mr. Haller, Chief Planning Examiner in the Department of Safety and Permits, that a permit would be issued for the construction of his building upon application for it.

Soon afterwards plaintiff caused an excavation to be made to inspect the foundation of the wall. This inspection revealed that Class 9 piles had been used in preparing the foundation for the wall instead of Class B piles as called for by Dr. Gillaspie’s plans and specifications, and that with the Class 9 type of piling the foundation was not adequate to support the wall as a party wall. Under the Building Code-of the City of New Orleans Class B piling is required for a party wall instead of the-, type used by defendant.

Although the inadequacy of the foundation and its non-conformity with the Building Code were not alleged in plaintiff’s, pleadings, the trial judge permitted him at. the trial to adduce evidence showing these-facts. The defendant then with the consent of the court filed a supplemental and! amended answer in which he conceded that the foundation was not in accord with the Building Code requirements but alleged that he had been totally unaware of this and prayed that he be afforded the opportunity before the issuance of a mandatory-injunction to strengthen the foundation in order to make it comply with the requirements of the code. In connection with this answer, it was brought out at the trial that Class 9 piling was substituted for the-Class B piling specified in defendant’s, building plans at the suggestion of the pile-driving contractor, who told defendant that the Class 9 piling would provide an adequate foundation and yet would be more economical. There is nothing to-show that Dr. Gillaspie had any intention, of violating the Building Code when he accepted the suggestion for the substitution, and we think he was entirely in good faith.

When the condition of the foundation of the wall was called to the attention of the Department of Safety and Permits, it revoked the permit previously issued to Dr. Gillaspie. However, upon the suggestion of this department, defendant immediately obtained from a reputable engineering firm plans and specifications for strengthening the foundation of the wall by means of what is commonly called batter piles. These plans and specifications were submitted to the department and were found acceptable, and a permit was issued to Dr. Gillaspie to proceed with the work.

The record shows beyond question that when the foundation of the wall has been strengthened according to this plan, the wall will prove adequate as a party wall in every respect. In fact, Mr. Haller, of the Department of Safety and Permits, testified that these plans were good and adequate, and that when the foundation work was completed, a permit would be issued to plaintiff Dr. Ciaravella to construct his building using the wall as a party wall. In other words, if" this work is completed, the wall in every respect will be an adequate party wall approved both as to superstructure and as to foundation. Plaintiff’s own architect concedes that if the work is done pursuant to the plan, it will correct the under-design of the existing piling foundation.

Appellant in this court, Dr. Gillaspie, concedes that the foundation of the wall needs strengthening, and there is no question that he is ready and willing to proceed with this work under the plan approved by the department for this purpose. Here he asks only a stay of the mandatory injunction until such time as the work of strengthening the foundation can be performed.

This is an equitable proceeding, and the remedy which plaintiff seeks — that defendant be ordered to partially destroy a new building erected by him at a cost of $42,000 by tearing down one of its walls — is a harsh one. We concede, however, that under the facts of this case- he has a right to have the wall torn down if it is not a legal party wall, or such a wall as would be recognized as a party wall by the authority whose duty it is to enforce the Building Code of this city. Nevertheless, in the interest of equity and justice we think the defendant should be given an opportunity to strengthen the foundation of the wall according to the plans and specifications which he has had prepared and which have been approved by the department. Moreover, for the purpose of completing the work according to these plans he should have ingress to plaintiff’s property. Failure to provide defendant with right of ingress would, in effect, be denying him the right which he has under the law to construct a party wall. See Heine v. Merrick, 41 La.Ann. 194, S So. 760, 6 So. 637. The work to be done in strengthening the foundation is to be entirely at defendant’s own expense. Nonetheless equity and justice require that defendant should be allowed only a limited time in which to have the remedial work done. We think a reasonable time would be a period of 60 days from the date on which plaintiffs property is made available to defendant for ingress to perform the corrective work on the foundation. The decree that we are rendering here will permit the plaintiff to proceed in due course with the construction of his building according to his plans and specifications using the wall in question as a party wall— exactly as he stated he wanted to do in the first place.

Under the conclusion we have reached, it will be necessary to reverse the judgment of the lower court which issued a, mandatory injunction ordering the defendant to demolish the wall. We shall, however, remand the case to the district court, reserving to plaintiff the right to apply for, and to have issued, in these proceedings a mandatory injunction if he can show that the work of correcting the foundation has not been completed within the allotted time or can show that, even though it is completed, he is unable to obtain a permit from the city for the construction of the building on his property solely because the wall to which his building is to be tied is not approved as a party wall.

For the reasons assigned the judgment issuing the mandatory injunction is reversed, annulled, and set aside, and the case is remanded to the district court for any further proceedings that may be necessary. All costs incurred to date are to be paid one-half by plaintiff and one-half by defendant.

PONDER, J., dissents.

HAMLIN, J., recused.


author: •HAWTHORNE, Justice.

text:
    233 La. 93
    James E. MAYFIELD v. Anita CASLER, Wife of, and Whitney J. POCHE, et al.
    No. 43128.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Lenfant & Villere, by Howard W. Len-fant, New Orleans, for plaintiff-appellant.
    Cobb & Wright, Herman M. Baginsky, John J. Williams, D. A. McGovern, III, New Orleans, for defendant-appellees.
   •HAWTHORNE, Justice.

This is a suit instituted by plaintiff James E. Mayfield under the Declaratory Judgments Act, R.S. 13:4231-4246, seeking a construction and declaration of rights under an act of sale and chattel mortgage. Named as defendants are Anita Casler, wife of Whitney J. Poche, and Whitney J. Poche; Industrial Outdoor Displays, a commercial partnership, and its individual members; and Pan-Am Southern Corporation.

On January 27, 1955, defendants Mr. and Mrs. Poche entered into an act of sale with plaintiff, the interpretation of which is sought in this suit. The pertinent provisions of this contract are as follows:

“Sale and Chattel Mortgage
“State of Louisiana,
“Parish of Orleans,
“Be It Known, That on this 27th day of January, Nineteen Hundred and fifty-five Before me, Vernild G. Warner, Notary Public, duly commissioned and qualified in and for the Parish of Orleans, State of Louisiana, Personally Came and Appeared:
“Anita Casler, wife of, and Whitney J. Poche who hereby sells, transfers and conveys unto
James E. Mayfield

here present and accepting and purchasing for himself, his heirs and assigns, and acknowledging due delivery and possession thereof, the following:

“Poche’s Super Service Station located at 2025. Gentilly Blvd., at the corner of Paris Avenue, which consists of the business only, no real estate is herein involved, together with lease dated October 5, 1951, wherein Calogero Papania leased the property at 2025 Gentilly Blvd., to Whitney J. Poche which said lease is recorded in Conveyance Office Book 579, folio 282 and has been assigned and transferred to the purchaser herein. Also conveyed herewith are stock and fixtures in accordance with Memorandum of Inventory annexed hereto and made a part hereof as though recited herein in extenso. Lease dated May 4, 1954, from Whitney J. Poche to Wright A. Goolsby, doing business as New Orleans Fire Detection Company is transferred to the purchaser herein, proceeds from said New Orleans Fire Detection Company rent to be the property of the purchaser herein.
“This sale is made, executed and accepted subject to Equipment Loan Agreement of Pan-Am Southern Corporation with Whitney J. Poche and Anita C. Poche, dated November 1, 1951; Pan-Am Southern Charge Plate Machine Lease to Mrs. Whitney J. Poche dated May 1, 1953; Pan-Am Southern Corporation Equipment Loan Agreement dated September 29, 1951; and, Product Lease by Whitney J. Poche and Anita C. Poche to Pan-Am Southern Corporation, dated November 1, 1951. The Purchaser herein agrees to comply with all the terms and conditions of the said agreements and lease herein described.
“It is further understood and agreed that notwithstanding the fact that the lease by Calogero Papania to Mr. and Mrs. Whitney J. Poche of the property at 2025 Gentilly Boulevard is herewith assigned to the purchaser herein, the upper apartment at this-address is not included in said assignment and will be retained by the Vendor herein.
“This sale is made for the sum of Fifteen. Thousand and No/100 ($15,000.00). Dollars, of which the purchaser has paid’, in cash Seven Thousand Five Hundred and! No/100. Dollars, to the vendor, who-hereby acknowledges receipt thereof; and. for the balance of said purchase price to-wit the sum of Seven Thousand and Five-Hundred and No/100 ($7,500.00). Dollars the said purchaser has furnished’ one promisory note for the sum of $7,500.00’ Dollars, payable at the rate of $250.00 per month beginning March 10, 1955, until! paid * * *. [Then follow the usual! printed provisions in the sale and chattel: mortgage form.]”

On October 5, 1951, Calogero Papania-. leased to Whitney J. Poche a parcel of land' at the corner of Gentilly Boulevard and! Paris Avenue in New Orleans, on which-a service station was being operated. The-lease was to begin on March 26, 1952, with, a primary term of 10 years and a monthly-rental of $300. On November 1, 1951,. Poche and his wife leased the same property to Pan-Am Southern Corporation for a: primary term of five years beginning March 26, 1952. The rent to be paid by Pan-Am-to the Poches was a sum equal to one cent a gallon on all gasoline delivered to the-service station for sale during each monthly period of the lease. This lease gave the lessee the option to extend the lease for successive periods of one year each. On. the same day Pan-Am Southern Corporation subleased the same property, the service-station, back to the Poches for a monthly rental of a sum equal to one-half cent per gallon on all gasoline delivered to the service station during each monthly period of this lease. This lease was for a term of 12 months beginning March 26, 1952, and was to be automatically renewed for periods of six months unless either party gave timely notice to the other of his desire to cancel the lease. All of these leases were duly and properly recorded. -

Under these lease transactions with Pan-Am, the Poches were to realize a net profit of one-half cent on each gallon of gasoline delivered to the service station.

After the Poches had leased the property to Pan-Am, they entered into an act of sale on January 27, 1955, with the plaintiff Mayfield, the pertinent parts of which we have set out above. By this act of sale the Poches sold to Mayfield “Poche’s Super Service Station located at 2025 Gentilly Blvd., at the corner of Paris Avenue, which consists of the business only, no real estate is herein involved, together with lease dated October 5, 1951, wherein Calogero Papania leased the property at 2025 Gentilly Blvd., to Whitney J. Poche which said lease * * * has been assigned and transferred to the purchaser herein. Also conveyed herewith are stock and fixtures in accordance with Memorandum of Inventory annexed hereto and made a part hereof as though recited herein in extenso.” The Papania lease mentioned in this 'act of sale has the following assignment signed by Poche in the presence of two witnesses: “For value received I/we hereby assign all my/our rights, title and interest in and to the within lease unto James E. Mayfield his heirs, successors or assigns, with full subrogation.” This assignment was made with the written consent of the original lessor, Papania.

After Mayfield began to operate the business which he had purchased, he became aware of a one-half cent per gallon charge on his gasoline bill, and when he inquired as to the nature of this charge, he was told that it was for rent on his premises. On March 8, 1955, Pan-Am wrote plaintiff a letter which, among other things, recites:

“We understand that you have entered into an agreement with Mr. and Mrs. Poche whereunder you now occupy the abovementioned service station. We are agreeable to your continuing in possession of the premises under your arrangement with Mr. and Mrs. Poche with the understanding that we hold a valid lease on said property, subject to our sub-lease to Mr. and Mrs. Poche, and that in the event we elect to cancel said sub-lease in accordance with the terms thereof, we will be entitled to possession of the premises. We are also agreeable to your paying rent to us for the account of Mr. and Mrs. Poche with the understanding that we will credit this amount paid by you on the rent due to us by Mr. and Mrs. Poche.”

In 1947 Industrial Outdoor Displays leased the right to erect advertising display boards or signs on the top of the service station. At the expiration of this lease the Poches in May of 1955 entered into a new lease with Industrial Outdoor Displays for a period of three years at a yearly rental of $420 payable in equal monthly installments of $35. It will be noted that this act of lease was made after the Poches had sold the service station business to the plaintiff. This lease was also duly recorded.

In due course plaintiff instituted this suit for a declaratory judgment decreeing that the contract of sale dated January 27, 1955, encompassed and included the contracts and agreements existing at the time of the sale or made since that time between the Poches and Industrial Outdoor Displays and the Poches and Pan-Am Southern Corporation, decreeing that the Poches account to him for all sums received from Industrial and Pan-Am, and ordering these latter defendants to make all future payments under their leases and agreements with the Poches to him.

Industrial Outdoor Displays and Pan-Am appeared and filed answers, and sought and obtained an order from the court permitting them to deposit in the registry of the court all rent that had become due since the institution of the suit and all rent that might thereafter become due by them as lessees under the terms of their respective leases from the Poches. They seek only to have their respective ieases from the Poches recognized and enforced and held to be valid, enforceable, and binding on the Poches and all parties claiming under them.

After trial on the merits there was judgment in favor of the Poches decreeing that the act of sale did not encompass the agreements between the Poches and Pan-Am and the agreements between the Poches and Industrial Outdoor Displays, and rejecting all of plaintiff’s demands. The judgment also recognized the validity of the leases between the Poches and the other defendants, and held that these leases were binding upon both Mayfield and the Poches. From this judgment plaintiff Mayfield appealed.

To reiterate the facts briefly, the landowner Papania leased to the Poches the property on which the filling station business is conducted. They in turn leased it to Pan-Am, and Pan-Am leased it back to them. All of these leases are of record and were in existence at the time Mayfield purchased the business. Consequently May-field in order to operate Poche’s Super Service Station, the business which he bought for $15,000, must not only pay the monthly rental of $300 specified in the landowner’s lease to the Poches, but also must pay monthly to Pan-Am an amount equal to one-half cent per gallon for every gallon of gasoline delivered to the filling station for sale.

Although the facts seem to be somewhat involved, narrowed down, the issue between Mayfield and the Poches is: Which is entitled to the monthly rental equal to one cent per gallon on all gasoline delivered to the service station for sale during each monthly period of the lease of the property from the Poches to Pan-Am, and the monthly installments of $35 now due by Industrial Outdoor Displays under its lease?

It is the Poches’ contention that the instrument which we are asked to interpret, in order to determine their rights and those of Mayfield under it, was a sublease and not an assignment because it shows that the Poches did not dispose of their entire right in the Papania lease, and that consequently this contract did not include the leases and agreements between them and Pan-Am and Industrial Outdoor Displays.

As the Poches view this case, although Mayfield must pay the monthly rental equal to one-half cent per gallon to Pan-Am in order to operate the business he bought, the Poches are entitled to receive from Pan-Am the monthly rental equal to one cent per gallon for every gallon of gasoline delivered for sale to the business Mayfield bought. In other words, before the sale to Mayfield, as we have pointed out, the Poches actually netted under the leases with Pan-Am one-half cent per gallon on gasoline, whereas after the sale under their contention they are to net a full one cent. In sum, they say that what the plaintiff actually bought for $15,000 was a few physical effects — including oil, gas, and fixtures which the record shows had a value of not more than $2,500 — ,the business, and the good will.

The instrument under consideration is designated by the parties to it as an act of s.ale and chattel mortgage, and is clearly a sale of a business, Poche’s Super Service Station, with its stock and fixtures and a transfer or sale of the Papania lease, except for the upper apartment on the premises. The instrument provides that the sale is made subject to certain specifically named contracts and agreements executed by the Poches with Pan-Am, but it is significant that no mention is made in this instrument of the leases executed by the Poches with Pan-Am and Industrial Outdoor Displays. Consequently these leases were not specifically excepted from the sale by the instrument itself.

Article 2461 of our Civil Code provides:

“The sale of a thing includes that of its accessories, and of whatever has been destined for its constant use, unless there be a reservation to the contrary.”

Article 2490 states:

“The obligation of delivering the thing includes the accessories and dependencies, without which it would be of no value or service, and likewise everything that has been designed to its perpetual use.”

As we have said, it is our view that what Mayfield bought was a business, a filling station business, purchase of which necessarily carried with it the right to do business as a filling station. The Pan-Am leases are obviously part of the service station business conveyed to plaintiff. In the language of the Code, they are accessories and destined to its use, and without them plaintiff could be denied the right to conduct the business which he bought. To say otherwise would, in effect, be saying that Mayfield is occupying the premises and doing business there by the sufferance of Pan-Am since he was not a party to the Pan-Am leases. Therefore under the law these leases were included in the sale since a reservation to the contrary was not made in the act of sale. Art. 2461, La. Civ. Code; see Smith v. Bell, 224 La. 1, 68 So.2d 737.

The Industrial Outdoor Displays lease, in which “Poche’s Service Station” is named as lessor, permits the lessee to erect signs on the building in which plaintiff is conducting his business and which is a part of the realty described in the Papania lease assigned to plaintiff. Therefore the Poches would not be entitled to this lease and to the revenues flowing from it unless it were specifically excepted in the sale.

Counsel for the Poches argues that because a lease designated as the Poche-Goolsby lease was expressly included in the sale, the other leases were impliedly reserved. We do not think this position is sound under the provisions of Articles 2461 and 2474 of the Louisiana Civil Code.

In conclusion, it is our view that plaintiff Mayfield, under the act of sale which we are here called upon to interpret, acquired the leases described above and is entitled to the rents due under them.

For the reasons assigned the judgment appealed from is affirmed insofar as it recognized the validity of the leases between the Poches and Pan-Am Southern Corporation and the Poches and Industrial Outdoor Displays and held these leases to be binding upon both Mayfield and the Poches. In all other respects the judgment is reversed, annulled, and set aside, and it is ordered that there be judgment declaring that plaintiff Mayfield stand in the place and stead of the defendants Mr. and Mrs. Poche in respect to all leases applicable to this property with Pan-Am Southern Corporation and Industrial Outdoor Displays, entitled to all rents and revenues from these leases after January 27, 1955, the date of the sale. It is further ordered that all sums of money deposited in the registry of the court by defendants Pan-Am Southern Corporation and Industrial Outdoor Displays be paid to plaintiff. It is further ordered that the defendants Mr. and Mrs. Poche account to plaintiff for any rents which may have been paid to them under these leases after the date of the sale, and that plaintiff have judgment for the amount shown to be due by the accounting. Ap-pellees Mr. and Mrs. Whitney J. Poche are to pay all costs of this suit.

HAMLIN, J., recused.

      . The record discloses that when Pan-Am executes a lease of a filling station, it . requires the lessee to enter into a Dealer’s Agreement, under which the lessee is to buy and resell Pan-Am products. The term “Product Lease” used here is a “Dealer’s Agreement”.

      . The amount on deposit in the registry of the court exceeds the sum of $2,000.

      . Industrial Outdoor Displays has paid to the Poches, or deposited in the court, the sum of $517.46 covering all rent due under its contracts for the period from January, 1955, through April, 1956. Pan-Am Southern Corporation has likewise paid, or deposited in the court, the sum of $3,926.20 as its rent for the period from January, 1955, through March, 1953.


author: SIMON, Justice.

text:
    233 La. 106
    Buell R. KENDRICK et ux. v. Marvin R. GARRENE et ux.
    No. 43051.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    See, also, 96 So.2d 63.
    A. J. Spedale, Bryant W. Conway, Baton Rouge, for defendants-appellants.
    Lemuel C. Parker, Teddy W. Airhart, Jr., Baton Rouge, for plaintiffs-appellees.
   SIMON, Justice.

This is one of two suits arising out of a contract to buy and sell real estate. The suits were instituted in separate parishes and separate judicial districts, but have been consolidated for purposes of appeal. The instant suit was filed in the Eighteenth Judicial District Court, Parish of Pointe Coupee, the domicile of the defendants, for ■the recision of the contract. The other was filed in the Nineteenth Judicial District Court, Parish of East Baton Rouge, the situation of the property involved, seeking the issuance of a writ of sequestration, affecting the subject property.

The record reveals that this litigation is the culmination of a chain of events which began on July 1, 1950, when plaintiffs and ■defendants entered into a written contract wherein defendants agreed to purchase from plaintiffs certain property therein de■scribed for the price of $15,500. Simultaneously with the execution of the contract, the purchaser paid $500 to the vendor and agreed therein to pay $150 a month on the first day of each succeeding month, said agreement to be in effect for two years before the formal act of sale was to be executed and all amounts thus paid to be applied directly to the retirement of the principal. The purchaser further agreed to pay all interest falling due on a certain mortgage encumbering the property. No other interest payments were to be made by or charged to the purchaser except those called for by the mortgage clauses referred to in the contract.

The contract also provided that should the purchaser default in any of the payments agreed upon and should he and the vendor fail to reach an agreement in connection therewith, the purchasers would, upon receipt of thirty days’ notice, vacate the premises, and that all amounts paid in connection therewith would be deemed forfeited.

Upon the execution of the contract dated July 1, 1950 defendants took possession of the property with all of its improvements and received all revenues and income flowing therefrom, such as rentals, in the sum ■of $3,990, in addition to their occupancy ■of a portion of the premises as a residence for twenty-four months, the rental value of which was computed to be $50 per month, or the sum of $1,200.

Defendants failed to pay the installments as agreed upon, and as of May 20, 1952 they had paid the total sum of $800 on the sale price of $15,500, leaving a balance of $14,700 due as of that date.

On May 20, 1952, the defendants executed a new contract to purchase the plaintiffs’ property, for the price of $14,700, said price being the unpaid balance due under the 1950 contract. The new contract embodies the following changes in the terms of payment:

“(1) The sum of Seventy-Five ($75.-00) Dollars is due and payable on or before May 16, 1952, and an equal amount is to be due and payable on or before the same day of each succeeding month thereafter until the sum of Seven Thousand Five Hundred ($7,500.00) Dollars has been paid in full.
“It is understood by the parties hereto that said property is encumbered by a certain mortgage in favor of - Hays in and for the sum of $7,500.00 and that the vendors are to make payments on said mortgage in amounts equal to payments made under this agreement.
“(2) The balance of Seven Thousand Two Hundred ($7,200.00) Dollars is represented by One (1) certain promissory note, dated this day, to the order of Buell R. Kendrick, in the sum of $7,200.00 due and payable in equal monthly installments of $75.00 each, the first monthly installment being due and payable on or before October 16, 1960, and one equal installment being due and payable on or before the same day of each succeeding month thereafter until all paid, said note stipulating to bear interest at the rate of Four (4) per cent per annum from date until paid, payable monthly, beginning May 16, 1952, all payable at the American Bank and Trust Co., Baton Rouge, Louisiana.
“The vendors agree to convey good and valid title when the sum of $7,500 has been fully paid. The balance of the purchase price as of date of sale is to be represented by a first mortgage note payable as note described in Two
(2) above, bearing the same rate of interest.”

Subsequent to and in accord with the agreement dated May 20, 1952, defendants made payments in the sum of $99 per month, $75 being the amount paid to be applied to the Hays mortgage note and $24 to be applied in payment of interest due for $7,200. ' '

Defendants failed to pay the installment due on June 16, 1955, but on July 15, 1955 sent plaintiffs a check in the sum of $198 to cover the two monthly installments. The check was not honored by the drawee bank and was returned unpaid to plaintiffs who thereupon notified defendants. As a result thereof a controversy arose between the parties concerning the responsibility of paying the accruing interest on the Hays mortgage note referred to in the agreement of May 20, 1952. Whereupon, the defendants offered to continue to pay $99 per month, $75 to be applied to the principal of the Hays mortgage note, and $24 to be applied to the accruing interest on the note of $7,200, representing part of the purchase price, the principal of which, with interest, was due and payable in installments beginning in October, 1960. Hence defendants sought to absolve themselves of the payments of any accruing interest on the Hays mortgage note. This offer was rejected by plaintiffs as not being in accord with the terms of the contract; and on August 6, 1955 plaintiffs instituted the instant suit, seeking a recision of the contract and recovery of accrued monthly installments, plus attorney’s fees.

Defendants answered denying a breach of the contract. In their reconventional demand they aver that, should the contract be ordered rescinded, they are entitled to a money judgment for a sum equal to payments made on the purchase price and for reimbursement of costs of repairs, taxes, insurance, improvements and for other costs incurred by them, aggregating the sum of $7,823.69.

The trial court rendered judgment in favor of plaintiffs rescinding the contract dated May 20, 1952 and awarding to plaintiffs the sum of $600 as attorney’s fees. Plaintiffs’ demand for accrued installments and defendants’ reconventional demand were dismissed. Defendants appealed. Plaintiffs answered praying that said judgment be amended so as to increase the award of attorney’s fees to $2,500, and, as thus amended, affirmed.

During the pendency of the instant suit in the lower court, plaintiffs, on October 31, 1955, instituted a suit in the Nineteenth Judical District Court, Parish of East Baton Rouge, wherein they sought the issuance of a writ ordering the sequestering of the subject property. Coupled with said writ of sequestration plaintiffs sought a money judgment in the sum of $495 representing past due installments under the contract, and for the sum of $1,500 attorney’s fees. Following the issuance of said order the defendants filed a motion to dissolve said writ on the ground of improper venue, contending that the suit was one in perso-nam against a non-resident, and not one in rem. Defendants also filed exceptions of lis pendens and exceptions of no right and no cause of action.

The trial court concluded that the suit was one in rem and rendered judgment maintaining and making executory the writ of sequestration. It further ordered that the possession of the subject property be delivered to plaintiffs, together with the payment to plaintiffs by the sheriff of any funds on hand,. after payment of costs. Defendants appealed from said judgment; and plaintiffs answered and seek damages for frivolous appeal.

Plaintiffs contend that by the terms of the contract dated May 20, 1952, the $75 monthly payments made by the purchaser were to be applied to payments of the Hays mortgage note until it is paid in full, both in principal and interest.

On the other hand, defendants contend that the agreement of May 20, 1952 contains no obligation other than those expressly contained therein; that the contract makes no reference to the payment of accruing interest on the Hays note; that in the absence of such expressed provision as to payments of interest, their sole obligation is to make one hundred monthly payments of $75 each, which would thereby constitute full payment of the principal of $7,500 called for by the Hays note. The defendants therefore contend that the payment of accrued interest on the Hays note is an obligation to be discharged by the plaintiffs.

A determination of the responsibilities of the parties as to the interest on the $7,500 Hays note necessitates an interpretation of the provisions contained in the May 20, 1952 agreement relative to said indebtedness.

It must be conceded that the contract of May 20, 1952 makes no expressed provision for payment of the interest due on the Hays mortgage note. However, we find therein the obligation assumed by the defendants to pay the sum of $75 monthly “until the sum of $7,500 has been paid in full,” which unquestionably means a full and complete payment of the mortgage indebtedness. Furthermore, we fail to find any provision in said agreement which would expressly or impliedly relieve the defendants from the obligation of discharging this mortgage indebtedness in full.

At best, defendants’ contention is strikingly novel in that they, having obligated themselves to liquidate and pay in full an outstanding mortgage indebtedness encumbering the property, attempt to segregate the interest from the principal and represent that by the payment of the principal only they would discharge the obligation so assumed. They cannot be heard to say that accruing interest is not a part of a a principal obligation. Obviously there can be no full payment of the Hays mortgage note which was assumed by defendants, until payment thereof has been made in full, both in principal and interest. We are in full accord with the trial judge that a contrary conclusion would be entirely unwarranted and unreasonable under the circumstances presented herein and would be a gross deviation from usual and customary business practice.

Furthermore, it is difficult to perceive that plaintiffs would voluntarily enter into an agreement to sell the property in question for the sum of $14,700 entirely on credit, and to allow the defendants to receive the revenues from and enjoy the possession thereof, while exacting interest on only $7,200, or less than half of the purchase price.

At an end to arrive at the true intention of the parties as to who would be obligated to pay the interest on the Hays mortgage note the trial court, over objections of defendants, admitted in evidence the original contact between the parties of 1950. The provisions of this original contract imposes upon the defendant the obligation of paying the interest charges as well as the principal indebtedness represented thereby, or, in other words, fully discharge the mortgage indebtedness. We find no error in the ruling of the trial court for it is a well settled principle of law that where the words used in an instrument are not clear and explicit and may in their application lead to absurd consequences, or where its contents exhibit ambiguity and uncertainty, or where the mutual intention of the parties has not been fairly explicit, the court may consider all pertinent facts and circumstances, including the party’s own conclusion of its meaning, rather than adhere to a forced meaning of the terms used. Shoreline Oil Corp. v. Guy, La.App., 189 So. 348; Cooley v. Meridan Lumber Co., Limited, 195 La. 631, 197 So. 255; Hunt Trust v. Crowell Land & Mineral Corporation, 210 La. 945, 28 So.2d 669; Simmons v. Hanson, 228 La. 440, 82 So.2d 757; Cardos v. Cristadoro, 1955, 228 La. 975, 84 So.2d 606.

We are therefore convinced that in accordance with the agreement of the parties the formal title to the property would not have been transferred to the defendants until the mortgage indebtedness had been paid in full, both principal and interest. Any other interpretation or conclusion would be strained and untenable. Accordingly, we conclude that the defendants’ failure to make the installment payments on the purchase price of the property as called for in their agreement of May 20, 1952 constituted a breach thereof warranting its recision.

As above stated, while this suit was pending in the Eighteenth Judicial District Court, plaintiffs instituted sequestration proceeding on October 31, 1955 in the Nineteenth Judicial District Court, and by order of the latter court the property was seized on November 3,1955 and all revenues therefrom from date of sequestration were delivered to plaintiff by sheriff of that parish.

In the instant suit for the recision of the contract, plaintiffs sought recovery for past payments due on the property, that is, unpaid installments, or the sum of $596 due from June to November when the property was sequestered. The trial court denied recovery of this item on the ground that the demand for the past due installments was inconsistent with the demand for a recision of the contract. We find no error in said denial. However, we shall reserve to the plaintiffs the right to sue for such rentals and any other rights which may have flowed from the possession and occupancy of said property by the defendants subsequent to the date of the filing of this suit.

We discern error in the judgment in favor of plaintiffs for attorney’s fees in view of the fact that the agreement to buy and sell made no provision therefor in the event of default by either party. For this reason the demand for attorney’s fees should have been denied.

By reconventional demand, defendants sought reimbursement for sums expended in maintenance of and improvements to the property during their possession thereof as well as reimbursement for sums paid on the purchase price. Mr. Garrene, one of the defendants, testified that the said repairs and improvements consisted mainly of changing the nature of the premises situated on the property from commercial to residential, for which the following expenditures were made by him:

Lumber and mill work $1,159.85
Hardware, painting & plumbing 1,180.76
Electrical work 152.09
Insurance & advertising 87.53
Utilities 693.31
Labor 313.83
Labor by defendant—400 hours 750.00
Payments on contract 3,564.00
Total $7,901.37

During their possession and occupancy of the property defendants received rentals in the sum of $3,990, and for a period of twenty-four months occupied part of the premises as their residence, which apartment would have realized a rental of $50 per month. Thus, defendants realized revenues in the minimum sum of $5,190 during their occupancy.

By the terms of the May 20, 1952 agreement, the defendants were obligated to maintain the property in proper state of repair at their expense, pay taxes and sewer charges and keep the building insured. While occupying said property, at their own will and volition, defendants converted the nature of the premises from commercial to residential to serve their own convenience and to realize rentals therefrom. Expenditures for this conversion were made while defendants enjoyed the revenues, use and occupancy of the property. We discern no error in the judgment of the trial court dismissing defendants’ reconventional demand.

Defendants cite the case of Atkins v. Smith, 207 La. 560, 21 So.2d 728 to sustain their position or claim for reimbursement for repairs or for reimbursement of payments of $99 per month on the purchase price. This case is not applicable having dealt with a factual situation decidedly different from that of the instant case.

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the judgment of the trial court be reversed, annulled and set aside insofar as it awarded attorney’s fees in the sum of $600 and in all other respects the judgment of the trial court is affirmed.

It is further ordered, adjudged and decreed that the right to sue for rentals and any other rights flowing from the possession of the subject property by the defendant to the date of the filing of this suit be reserved unto plaintiffs herein.

All costs of this appeal to be paid by defendants.

      . Plaintiffs filed a motion to dismiss the appeal, which motion was overruled by us by opinion rendered Monday, December 10. 1956. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603.


text:
    233 La. 121
    Buell R. KENDRICK et ux. v. Marvin R. GARRENE et ux.
    No. 43183.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    A. J. Spedale, Bryant W. Conway, Baton Rouge, for defendants-appellants.
    Lemuel C. Parker, Teddy W. Airhart, Jr., Baton Rouge, for plaintiffs-appellees.
   SIMON, Justice.

This is one of the two cases arising out of a contract to buy and sell real estate and comes to us by appeal from a judgment rendered by the Nineteenth Judicial District Court maintaining and making executory the writ of sequestration sued out herein, ordering the subject property, together with any funds on hand, after payment of any costs, returned to plaintiff. It was also ordered that the sequestration bond be cancelled.

The issue herein presented arises out of the same issue presented and determined by us in the case of Kendrick v. Garrene, 233 La. 106, 96 So.2d 58, both cases having been consolidated for purposes of appeal.

In the instant case plaintiffs answered this appeal and prayed for damages alleging that this appeal*is frivolous and without merit. We find no merit in this contention for it is the well-established principle of law that appeals are favored and aided by the Courts. State ex rel. Durand v. Parish Judge, 30 La.Ann. 282; First Nat. Bank of Ruston v. Lagrone, 164 La. 907, 114 So. 832; Pool v. Gaudin, 207 La. 403, 21 So.2d 424. One against whom a final judgment has been rendered in a cause in which an appeal is given by law, is entitled to an appeal as a matter of right. La. Code of Practice, Art. 565. Having a right of appeal, the law itself regulates the effect to be given such appeal. Young v. Village of Bossier City, 152 La. 18, 92 So. 719.

Accordingly, for the reasons assigned in the case of Kendrick v. Garrene, 233 La. 106, 96 So.2d 58, the judgment of the trial court is affirmed, all costs to be borne by defendants-appellants.


author: PONDER, Justice.

text:
    233 La. 123
    Rufus W. FONTENOT, Collector of Revenue, State of Louisiana, v. James A. MADIGAN.
    No. 42133.
    Supreme Court of Louisiana
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Carl G. Buchmarm, Adelaide Baudier, New Orleans, for defendant-appellant.
    Chapman L. Sanford, Levi A. Himes, Robert L. Roland, Baton Rouge, for plaintiff-appellee.
   PONDER, Justice.

The defendant is appealing from a judgment rendered in a summary proceeding condemning him to pay a tax of $20 plus a penalty of $500, interest and attorney’s fees.

It appears that the defendant imported 25 cartons of cigarettes during the month of March, 1954 and consumed them without affixing the stamps and paying the tax as provided for in LSA-R.S. 47:841 et seq.

The defendant, in a motion interposed in the lower court to plaintiff’s petition, alleged that the assessment of the penalty is confiscatory, oppressive,' arbitrary, and excessive and does not take into consideration the value of the property involved; that the act seeks to place defendant in an occupation against his choice and will in violation of the 14th Amendment of the Federal Constitution and Article 1, Section 2 of the Constitution of the State of Louisiana, LSA; that the statute as amended is an attempt to place a license tax on an individual not doing business; that the statute attempts by legislation to broaden the scope and meaning of Article 10, Section 8 of the Louisiana Constitution; that the statute taxes property belonging to the defendant at greater than the allowable rate in violation of Article 10, Sections 1 and 3 of the Louisiana Constitution; that the statute imposes confiscatory, oppressive, arbitrary, and excessive fines in contravention of the 14th Amendment of the Federal Constitution and Article 1, Section 2 and Article 10, Section 8 of the Louisiana Constitution; that the statute contains more than one object and that it contains an object not contained in its title.

While the defendant has appealed from the judgment in toto, this Court has jurisdiction only of the case insofar as it contests the legality and constitutionality of the penalty imposed and our consideration of the case is limited to that particular issue. City of Shreveport v. Aaldrup, 198 La. 893, 5 So.2d 143; State Farm Mutual Auto. Ins. Co. v. Ott, 221 La. 1061, 61 So.2d 872 and Liquefied Petroleum Gas Comm. v. E. R. Kiper Gas Corporation, 229 La. 639, 86 So.2d 518.

The defendant contends that under the holding in the case of Lionel’s Cigar Store v. McFarland, 162 La. 956, 111 So. 341, that he is not subject to the tax and fine because he is not in the business of buying and selling tobacco. This case was decided before the amendment of Title 47, Section 842(4) by Act 107 of 1952 which now defines a dealer to include “any person who imports cigars, cigarettes or smoking tobacco from any state or foreign country for distribution, sale, or consumption in the State of Louisiana.” Under the plain provisions of the act as amended the defendant does not' have to be in the business of buying and selling cigarettes in order to be liable for the tax and we know of no reason why the act should be unconstitutional because in defining dealer it includes any person who imports cigarettes for consumption or use. The tax is not an ad valorem tax and not subject to the provisions of Article 10, Section 1 and Section 3. It is an excise tax imposed upon the sale, use, and consumption of cigarettes, etc. There is no constitutional requirement that an excise tax or penalty for failure to pay such must be measured by the value of the property. Therefore, since the tax in question is an excise tax, it does not violate Article 10, Sections 1 and 3 since those sections apply only to property taxes which are taxes on an ad valorem method. The requirement of Article 10, Section 1 that all taxes be uniform applies to property taxes and not to license taxes. State ex rel. Porterie v. H. L. Hunt, Inc., 182 La. 1073, 162 So. 777, 103 A.L.R, 9; State v. Cusimano, 187 La. 269, 174 So. 352; State v. American Ry. Express Co., 159 La. 1001, 106 So. 544; Louisiana State Dept. of Agriculture v. Sibile, 207 La. 877, 22 So.2d 202. It was recognized in the case of Lionel’s Cigar Store v. McFarland, supra, relied upon by the defendant that the tax on retail tobacco was not a property tax in violation of Section 3 of Article 10.

The defendant contends that the statute contains more than one object and that it contains an object not contained in its title. The statute does not contain more than one object. The fact that in defining a dealer it includes anyone who uses or consumes does not make it objectionable.

The contention of the defendant that the penalty is confiscatory, oppressive, arbitrary, and excessive is equally untenable. It is an excise tax on the use and consumption of tobacco and hence need not be measured by the value of the property.

For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost.


author: JANVIER, Judge.

text:
    Mr. and Mrs. Joseph B. BRIGNAC v. Kossuth FONTENOT et al.
    No. 20779.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Eugene D. Brierre and Louis Fenner Claiborne, New Orleans, for plaintiffs-appellants.
    Severn T. Darden, James P. Screen, Robert E. LeCorgne, Jr., and S. Paul Weiss, Jr., New Orleans, for defendants-appellees.
   JANVIER, Judge.

Plaintiffs, Mr. and Mrs. Joseph B. Brig-nac, have appealed from a judgment dismissing, on exception of no cause of action, their suit as against Kossuth Fontenot one of the defendants and, on exception of no right of action and a plea of prescription of one year, the suit as against Walter Johnson, the other defendant.

The suit is one sounding in damages and results from an automobile accident in which the car of plaintiffs, in which they were riding and which was driven by Mr. Brignac, crashed into the rear of another vehicle which was being towed along the highway and which, when the tow-line broke, was brought to a sudden stop in front of plaintiff’s car.

The petition alleges that the driver of the towed car was the defendant, Kossuth Fon-tenot, and that the accident resulted from negligence on the part of Fontenot in “failing to have either headlights or tail lights on.” May we say as this point that the accident is alleged to have happened at 8:55 o’clock in the morning and we see no reason for lights at that time. It is also alleged that Fontenot failed to give warning of his intention to stop; that he failed to pull over to the shoulder of the road when the tow-line broke; that he was negligent in applying his emergency brake, and in stopping the vehicle suddenly without warning.

The suit as against Fontenot was filed on January 14, 1954, the accident having occurred on June 28, 1953. On September 14, 1954, which was considerably after the expiration of one year from the date of the alleged accident, plaintiffs filed a supplemental petition in which they alleged that Walter Johnson, who had been operating the towing car, was negligent in that he was “towing a vehicle on the public highway without proper precaution or identification,” and in that he parked his vehicle “on the highway without setting out any warning signals and without attempting to flag down oncoming traffic.”

By a stipulation of all counsel the exceptions and the plea of prescription were “referred to the merits”, but when the matter was called for trial, before any evidence was taken, the District Judge, after hearing argument, maintained the exceptions of no cause of action and the plea of prescription, and dismissed the suit of both plaintiffs as to both defendants. From this judgment plaintiffs have appealed.

We first consider the plea of prescription of one year which was filed by the defendant, Walter Johnson. Counsel for plaintiffs maintain that the plea of prescription is not well founded for the reason that, if the allegations of the several petitions are correct, Johnson, who was made defendant in the supplemental petition, and Fontenot, who was made defendant in the original petition, were joint tort-feasors and, consequently, if liable at all, are liable as solidary obligors, with the result that the filing of the suit as against Fontenot had the effect of interrupting prescription as to Johnson.

LSA-Civil Code, Article 2097 provides as follows:

“A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

And similarly LSA-Civil Code, Article 3552 provides in part that:

“A citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs.”

These codal provisions have been so well recognized and so often applied that discussion of them is entirely unnecessary, but counsel for Johnson, conceding this, argue that even if the allegations of the several petitions are true, Johnson and Fontenot were not actually joint tort-feasors since the acts of negligence which are charged against the one are not the same acts of negligence which are charged against the other. This is true of. almost all cases where an accident results from a collision of two or more vehicles and some third person is injured. The negligence charged against one of the drivers is not the negligence which is charged against the other, and yet it is well established that in such cases the suit against one interrupts prescription as against the other.

In Abrego v. Tri-State Transit Co., 22 So.2d 681, 682, the Court of Appeal for the First Circuit said:

“ * * * It is well settled that where the negligence of two or more persons combines to cause an injury to a third person, all of the persons whose negligence concurred in and contributed to the injury are liable in solido, and the plaintiff in such a case is not concerned with the question of the degrees of negligence as between the codefendants, or their respective rights inter sese. On this point, what we said in the case of Falgout v. Younger, 192 So. 706, 711, is appropriate to this case: ‘If the negligence of the drivers of the two trucks in this case combined to bring about the accident, a third person, without fault, as plaintiff was in this case, has a right to collect his full damage from any or all the defendants. We are forced to the conclusion that the combined negligence of the drivers of both trucks brought about the accident — that of Hebert in creating an unlawful obstruction in the road thereby blocking traffic without giving the proper signals, and that of Bourg in driving into this hazard at too fast a speed and in failing to have his car under control. Where a defendant is responsible for one of two or more proximate causes of an injury, he cannot escape liability because a third person is responsible for a concurrent proximate cause.’ ”

Our conclusion is that, if the allegations are well founded, Johnson and Fontenot are joint tort-feasors and, if liable, would be solidary obligors. Therefore the prescription was interrupted as to all defendants by the filing of the suit against one.

When we come to consider the exceptions of no cause of action filed by both Fontenot and Johnson, we find them based on the theory that, whenever a following vehicle crashes into another which has stopped on the road ahead, the driver of the following vehicle must have been at fault and that, consequently, whatever may have been the fault of the operator of the vehicle which was brought to a stop, the negligence or contributory negligence of the driver of the following vehicle would prevent recovery by him for damage to his car or for physical injury sustained by him.

It is true that in practically all such cases it has been held that the driver of the following vehicle was at fault, and counsel for exceptors direct our attention to LSA-R.S. 32:234, subd. A which is cited in Coleman v. Shreveport Railways Company, La. App., 86 So.2d 590, and which reads as follows:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway.”

And counsel for exceptors point out that, according to the allegations of plaintiffs, Brignac was operating his car at a speed of approximately 45 miles per hour, whereas the vehicle ahead was being towed at a speed of only 20 miles per hour, and they show that in spite of the fact that Brignac was operating his car at a speed considerably higher than that of the car ahead, he had approached to within 50 feet of the car ahead when the accident occurred. Counsel say that this in itself shows negligence on the part of Brignac and that it is obvious that this negligence was the proximate cause of the accident.

Counsel overlook the fact that it is alleged that Brignac was approaching the car which was ahead in an attempt to pass it and, therefore, that it was necessary for him to he operating his car at a speed somewhat in excess of that of the vehicle ahead, and that it was also necessary for him to allow his car to decrease the distance which separated them so that he might pass around the car ahead as he intended to do. It might have been considered negligence for him to operate his car at a speed of 45 miles per hour and to approach the other car within 50 feet had he intended to stay in the same lane in which the other car wís being operated.

Counsel for exceptors attempt to answer this argument by showing that the highway had four traffic lanes and that, therefore, since two of the lanes were devoted to traffic proceeding in the direction in which Brignac was proceeding, there was no necessity for him to allow his car to remain in the same lane in which the car ahead was being operated. All of these arguments may be well founded and it may be that, after a trial on the merits, it may appear that there was no fault in either Fontenot or Johnson and that there was fault in Brignac. In passing, may we say that the charges against Johnson appear to be so sketchy and ephemeral that it is almost impossible to anticipate that it can be shown that Johnson was at fault. Still, as we read the allegations of the several petitions we do not see that they affirmatively show that Brignac was himself at fault, nor do they affirmatively show that either Fontenot or Johnson was not at fault.

In Meadows v. Preferred Acc. Ins. Co. of New York, 49 So.2d 765, 767, the Court of Appeal for the Second Circuit said:

“In passing upon exceptions of no cause or right of action, the Courts of Louisiana have followed the rule that doubts as to the rights of a plaintiff to recover should be resolved in favor of the sufficiency of the petition, and unless the petition clearly discloses a lack of a cause of action, the exception should • be overruled. Waggoner v. City of Minden, La.App., 9 So.2d 244.”

To the same effect see Lusco v. McNeese, La.App., 86 So.2d 226.

And we think it now well established that an exception of no cause of action should not be maintained unless the allegations affirmatively show that the plaintiff himself was at fault or affirmatively show that the defendant was not at fault. The Supreme Court laid down this rule in Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239,242:

“It is also well settled, however, with respect to such issue, that inasmuch as a plaintiff is not required to negative contributory negligence in his petition the exception should not be maintained unless the alleged facts establish affirmatively the existence of negligence on his part proximately causing the accident. To warrant the upholding of the exception, in other words, it is necessary that the allegations exclude every reasonable hypothesis other than that the proximate cause of the accident was negligence of the plaintiff. Gibbs v. Illinois Central Railroad Co., 169 La. 450, 125 So. 445; Burmaster v. Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, La.App., 174 So. 135; Pittman v. Gifford-Hill & Co., Inc., La.App., 188 So. 470; West v. Ray, 210 La. 25, 26 So.2d 221; Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720.”

All of the cases on which exceptors rely, which hold that the driver of the overtaking vehicle cannot recover, are based on the well founded theory that the driver of the said overtaking vehicle was himself guilty of contributory negligence. None of them was based on the theory that there was no negligence in the operator of the car which was allowed to remain standing on the highway, or which was brought to a sudden stop.

In fact, the traffic highway regulatory statute itself requires that if a vehicle is stopped on the highway a signal must be given. Note the following in LSA-R.S. 32:236, subd. A:

“The driver of any vehicle upon a highway of this state, before starting, stopping or turning from a direct line shall first see that such movement can be made in safety * * *; and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section, plainly visible to the driver of such other vehicle, of the intention to make such movement.”

Surely, from the allegations of this petition it cannot be said that the plaintiffs themselves have shown that the defendants are free of negligence. It may be that the allegations are inartistically drawn and that they are vague, but if so, exceptors should have forced amendments by exceptions of vagueness.

In Lusco v. McNeese, supra [86 So.2d 228], the Court suggested that if a petition is inartistically drawn, it is “probably subject to an exception of vagueness” but should not be dismissed on an exception of no cause of action.

We thus conclude that even the suit of Brignac himself should not have been dismissed on an exception of no cause of action and we are even more certain that the suit of Mrs. Brignac should not have been dismissed for the reason that if there was negligence on the part of either defendant and that negligence had any causal connection with the accident, then contributory negligence of Brignac, if there was contributory negligence, would not be imputed to Mrs. Brignac. Our Supreme Court, after a lengthy discussion, first established this rule in Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A.L.R. 148, and in a much later expression, again announced that rule. In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 293, the Court said:

“The record discloses, and in fact it is not seriously disputed, that Mr. Kientz was guilty of negligence, but his negligence cannot be imputed to plaintiff, his wife. And if the negligence of defendant’s driver contributed to the accident, she is entitled to a recovery against defendant.”

. Our conclusion is that the plea of prescription and the exceptions of no cause of action should not have been maintained.

Accordingly, the judgment appealed from is annulled, avoided and reversed and the matter is remanded to the Twenty-ninth Judicial District Court for the Parish of St. John the Baptist for further proceedings consistent with the views herein expressed and according to law.

Reversed and remanded.