author: BOUTALL, Judge. LEMMON, Judge

text:
    Felix BONURA and Felix Bonura Company, Inc. v. CHRISTIANA BROS. POULTRY CO. OF GRETNA, INC., et al.
    No. 7270.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearings Denied Aug. 31, 1976.
    Writs Refused Nov. 19, 1976.

      Bernard Marcus, Robert G. Stassi and B. Franklin Martin, III, Deutsch, Kerrigan & Stiles, New Orleans, for plaintiffs-ap-pellees.
    Robert R. Rainer, Baton Rouge, for the Collector of Revenue, State of Louisiana.
    James Kenneth McCay and Frank L. Maraist, Baton Rouge, for Joseph Chris-tiana.
    Before REDMANN, LEMMON, BOU-TALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves the liability of a guarantor for an amount due on open account based on a continuing guaranty. It also involves the apportionment of some of the debtor’s assets because of state tax liens.

In 1961, Nicholas (Nick) Christiana, Jr., Anthony Christiana and Joseph Christiana executed a continuing guaranty for the account of Christiana Bros. Poultry Co. of Gretna, Inc. (Christiana Bros.) and/or Christiana Bros. Poultry Co. of Baton Rouge, Inc. in favor of Felix Bonura Company, Inc.- (Bonura Co.). For at least the next ten years, except for Joseph Chris-tiana leaving New Orleans in 1967 and taking over the operation of the Baton Rouge Corporation, business was conducted without much incident. In November of 1972, however, in the face of a mounting open account indebtedness to Bonura Co., Anthony Christiana executed a personal note to Felix Bonura in the amount of $12,486.00, the proceeds of which were to be applied to the balance of the open account.

On August 7, 1973 Christiana Bros.’ account had a balance of $67,809.73. On August 23, 1973, Anthony Christiana, President of Christiana Bros, assigned all the accounts receivable of the corporation to Bonura Co. pursuant to LSA-R.S. 9:3101, et seq.

Notice of the assignment was subsequently mailed to all the account debtors and some accounts were paid. At this time, Christiana Bros, also owed taxes to the State of Louisiana. A portion of the tax liability was secured by liens recorded prior to the assignment. The remainder was either unsecured or secured by liens recorded after the execution of the assignment. The Department of Revenue received some voluntary payments from Chris-tiana Bros, and other payments were obtained by levying against certain of Chris-tiana Bros.’ accounts receivable.

On September 13, 1973 plaintiffs Felix Bonura and Bonura Co., filed suit against defendants, Christiana Bros., Anthony, Nick and Joseph Christiana, seeking recovery of $67,809.73 under the continuing guaranty agreement. Also included in the suit was a claim for the remaining balance of the note personally executed by Anthony.

On January 2, 1974 plaintiffs requested a temporary restraining order preventing Christiana Bros, and the Collector of Revenue from interfering with the collection of the assigned accounts receivable. They also sought to recover from the Department of Revenue all amounts previously collected and received from the account debtors of Christiana Bros, and all amounts collected and deposited into the registry of the court. The temporary restraining order was granted.

After trial on the merits, the district court rendered judgment in favor of plaintiffs in the sum of $67,809.73 plus 25% attorney’s fees and costs. Judgment was also rendered against the State Department of Revenue in the amount of $11,933.71 representing collected accounts receivable, to be credited against the $67,809.73 judgment against defendants. The Clerk of the Twenty-Fourth Judicial District Court was further ordered to remit to Bonura Co. all amounts deposited in the registry of the court under the caption of this suit. Felix Bonura was also awarded the sum of $1,360.00 from Anthony Christiana representing the remaining balance on the note. Defendant, Joseph Christiana, and the State of Louisiana appeal. We affirm in part and reverse in part.

Due to the diversity of issues involved in this appeal, contentions of each appellant will be discussed separately.

JOSEPH CHRISTIANA

Defendant contends the trial court erred in: (1) failing to find that the continuing guaranty was no longer enforceable; (2) failing to hold that verbal notice was sufficient to terminate the continuing guaranty; (3) failing to find that the assignment of the ..accounts receivable and the collection of sums thereunder discharged the surety of his obligations under the continuing guaranty; (4) failing to find that the giving of the note by Anthony Christiana had the effect of discharging the surety on the continuing guaranty; and (5) awarding an attorney’s fee of 25% of the amount in suit.

Defendant asserts that a continuing guaranty is a personal action which prescribes in ten years under LSA-R.C.C. 3544. We do not agree. It is recognized by all parties that a contract of continuing guaranty is equivalent to a contract of suretyship. See Brock v. First State Bank & Trust Co., 187 La. 766, 175 So. 569, 570 (1937). As such, rights and obligations arising from it are accessory to the principal obligation. LSA-R.C.C. Art. 3035. In Louisiana Bank and Trust Co. v. Bouttee, 298 So.2d 884, 887 (La.App. 3 Cir. 1974), in determining the prescriptive period on a similar continuing guaranty agreement the court stated:

“Under our law, the suretyship undertaking is'vitiated by prescription of the principal obligation. Therefore, normally the suretyship obligation depends for its vitality upon the prescriptive period applicable to the primary obligation involved. La.C.C. Art. 3060.”

Although the Supreme Court subsequently amended the holding at 309 So.2d 274, 279 (1975), the opinion recognized that prescription on a guaranty does not begin to run until the principal indebtedness sued on arises. Hence, for the purposes of prescription, the date the agreement was signed is of no moment.

In the case at bar, the debts sought to be enforced under the continuing guaranty were incurred during the period November, 1972 through August 1973. As these debtors were on open account, they prescribe three years after they become due. LSA-R.C.C. Art. 3538. Suit was filed on September 13, 1973. Accordingly, since suit was filed clearly before the principal indebtedness had prescribed, the continuing guaranty remains enforceable.

Defendant argues that in the event we do not find the prescriptive period of LSA-R.C.C. Art. 3544 to be applicable, plaintiffs are nevertheless barred from enforcing the continuing guaranty because of estoppel or laches. He asserts that a 12 year delay in enforcement is unreasonable and that his rights were prejudiced thereby.

While delay in enforcing a right is an element of laches, it is not a sole consideration. Laches will only apply where the enforcement of the right asserted would work injustice. Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946). We do not believe the circumstances of this case warrant a utilization of this doctrine. We point out that there were continuous sales from the time of confection of the continuing guaranty through August, 1973. The account was paid up into 1972. There was no need for the creditor to have called upon the guaranty until that time. Additionally, we note that during the entire period Anthony and Nicholas Christiana were bound for sales made to the Baton Rouge corporation.

We find nothing in the record to sufficiently demonstrate how the delay prejudiced appellant’s rights to justify sustaining a plea of laches or estoppel. To the contrary the facts show that the intent of the parties was to provide a security device to Bonura to induce that company to sell chickens for an indeterminate period on credit to the Christiana companies: that the sales began immediately causing the continuing guaranty to become effective; that the sales continued within the knowledge of Joseph Christiana, keeping the continuing guarantee in effect. See, for example, Hibernia Bank & Trust Co. v. Succession of Cancienne, 140 La. 969, 74 So. 267 (1917); Interstate Trust & Banking Co. v. Sabatier, 189 La. 199, 179 So. 80 (1937); Magnolia Petroleum Co. v. Harley, 13 So.2d 84 (La.App.1943).

The law is well settled that a continuing guaranty remains in force until revoked by the guarantor, expressly or impliedly; or its effectiveness is extinguished in some other mode recognized by law. Magnolia Petroleum Co. v. Harley, supra.

The guaranty agreement provides for termination on the part of the guarantors as follows:

“This guaranty shall continue in full force and effect until such time as you shall receive from us, written notice of revocation, and such revocation shall not in any way relieve us from liability for any indebtedness incurred prior to the actual receipt by you in hand of said notice.” (emphasis ours).

Defendant concedes that written notice of revocation was not given until August 7, 1973. He asserts, however, that a verbal notice of revocation, which he testified he gave to a now deceased exowner and officer of Bonura Co., given when defendant moved to Baton Rouge, was sufficient to terminate his liability under the continuing guaranty. Specifically, he argues that if the parties meant that the agreement could be revoked only by written notice, the phrase “written notice only” should have been used in the agreement.

We see no merit to this contention. The wording of the contract is clear and unambiguous. Revocation is to be carried out solely through the process of written notification. To hold otherwise would be in derogation of the true intent of the parties. LSA-R.C.C. Art. 1945.

Defendant contends that under the provisions of LSA-R.C.C. Art. 3062, the assignment of accounts receivable had the effect of fully discharging the sureties on the continuing guaranty. We do not agree. LSA-R.C.C. Art. 3062 contemplates full discharge of a surety only after acceptance of property in full payment of a principal debt. The assignment here was given for the purpose of reducing the open account indebtedness, and not for discharging same. Partial payment acts only as a pro tanto and not a full discharge of a surety’s obligation. Mortgage Investment Co. v. Natal, 174 La. 91, 139 So. 768 (1932); Alexandria Bank & Trust Co. v. Honeycutt, 161 La. 261, 108 So. 475 (1926). Defendant remains bound.

Defendant next asserts that under the provisions of LSA-R.C.C. Art. 3063 , the execution of the note by Anthony Christiana acted to relieve defendant of his liability under the continuing guaranty. We see no merit to this contention. Assuming for the moment that the note had the effect of prolonging the terms granted to the principal debtor (which we do not believe to be the case), defendant expressly waived his right to complain in the guaranty agreement. The agreement provides:

“Notice of acceptance of this guarantee, * * * of renewal or extension of any of said indebtedness, * * * are expressly waived.” (emphasis added)

Clearly, this provision defeats defendant’s assertion.

For the above reasons, we affirm the judgment of the district court holding defendant-appellant liable under the continuing guaranty agreement. However, we disagree with that portion of the judgment which awards attorney’s fees and and we reverse the award of 25% of the amount of the judgment as attorney’s fees.

The conditions of the sales made by Bonura Co. to the Christiana Co. did not include attorney’s fees but were simply sales on an open account. However, the continuing guaranty signed by appellant provided that:

“In event Felix Bonura Company, Inc. retains attorneys to effect collection pursuant to this guarantee, reasonable attorneys’ fees and all costs expended in effecting such collection shall be paid by the undersigned.”

We refer to LSA-R.C.C. Art. 3037 which provides:

“Art. 3037. Extent of suretyship obligation.
“Art. 3037. The suretyship can not exceed what may be due by the debtor, nor be contracted under more onerous conditions.
“It may be contracted for a part of the debt only, or under more favorable conditions.
“The suretyship which exceeds the debt or which is contracted under more onerous conditions shall not be void, but shall be reduced to the conditions of the principal obligation.”

In the recent case of Trane Company v. Christina, 260 So.2d 62 (La.App. 4th Cir. 1972) we held that where the principal obligation did not stipulate attorney’s fees for enforcement (but the continuing guaranty did), the accessory promise of the surety cannot be enforced on more onerous conditions. The effect of this decision is sought to be avoided by placing the onus of attorney’s fees upon the collection under the guaranty, not primarily upon the principal debt.

The net effect of such a condition is that guarantor dare not defend against the principal obligation without making himself responsible for attorney’s fees, while the principal debtor is not responsible for such fees. We note that the creditor herein sued the principal debtor in solido with the guarantors and obtained judgment against them all. Must we then allocate what portion of the attorney’s effort went to obtain judgment for the principal obligation and what portion he expended overcoming the defense arising under the guaranty?

The provisions of Art. 3037 are simple and clear. The suretyship with more onerous conditions is reduced to the same condition of the principal obligation. The condition stipulating attorney’s fees is more onerous than the conditions of the principal obligation which do not so stipulate. The award of attorney’s fees is disallowed, and that portion of the judgment is reversed.

STATE OF LOUISIANA

The State of Louisiana contends that the assignment of accounts receivable executed by Anthony Christiana as president of Christiana Bros, is invalid because it was not specifically authorized by the Board of Directors of the corporation. The trial court, while conceding that no signed corporate resolution existed granting Anthony express authority to execute the assignment, nevertheless, determined that Anthony had the authority, whether it was express, implied, or apparent, to execute the assignment. We find that in fact Anthony had implied apparent authority to execute the assignment.

Under the corporate by-laws Anthony, as president, was empowered with general and active management of the business. He did in fact manage all the business affairs of the corporation. Nick confined his affairs mainly to the loading platform. The corporation never observed any corporate formalities and in effect was run as a partnership,

Anthony testified that Nick approved the assignment. Nick’s testimony reflects that although he was told about the assignment before it was executed, he never expressed an opinion of approval or disapproval. He admitted though that he knew what Anthony was trying to do and never attempted to stop him.

Bonura Co., being aware of no objections from Nick and knowing that Anthony managed the business and had in the past handled all the business affairs of the corporation, could reasonably infer that he had implied authority to grant the assignment. Christiana Bros, would therefore be responsible for this act executed within Anthony’s apparent implied authority. J. Perez, S. A. v. Lousiana Rice Growers, Inc., 139 So.2d 247 (La.App. 3rd Cir. 1962).

The State argues that due to the fact Nick did not sign a prepared corporate resolution, Bonura Co. was put on notice of his non-consent and was estopped to rely upon Anthony’s apparent implied authority. This conclusion lacks merit. The record establishes that at all times Bonura Co. was assured that Nick had agreed to the assignment and that he eventually planned to sign the resolution. No grounds for estoppel exist.

Having found that the assignment of accounts receivable is valid and enforceable, we turn now to its' effect upon the State’s tax liens. The State has recorded a total of five tax liens against Christiana Bros. Two of these liens, amounting to a total assessment of $15,225.27, were recorded prior to the August 1973 assignment. The question presented is, do these liens prime the assignment to the extent of the tax debts they secure? Although the trial court found otherwise, we answer in the affirmative.

The problem in reaching this determination arises from an apparent conflict between LSA-R.S. 9:3102 of the assignment of accounts receivable statute and the tax assessment provisions of LSA-R.S. 47:15-77, 47:1578 and 47:1581 . LSA-R.S. 9:3102 provides:

“Every assignment of an account receivable evidenced in writing and made for a valuable consideration within the effective period of a statement of assignment made and filed for record as hereinafter prescribed shall be valid and shall be deemed and held to have been fully perfected at the time such assignment is made, notwithstanding that the debtor be not notified of or does not assent to such assignment; and thereafter no subsequent assignee, pledgee, purchaser or transferee of such account or other person claiming or to claim under, through or against the assignor, and no existing or future attaching, garnishing, judgment, execution, levying or other creditor of the assignor, except a creditor who through judicial proceedings shall have perfected a superior lien on such account prior to the time of such assignment, shall or can have or be entitled to any right, title, lien or interest in or to such account superior to or in diminution of that of such assignee therein or thereto.”

This section requires that in order to prime the recorded assignment of accounts receivable, a creditor must have perfected a superior lien on such account “through judicial proceedings” prior to the time of such assignment.

The Department of Revenue assessed the two tax deficiencies against Christiana Bros, and pursuant to LSA-R.S. 47:1577, recorded liens against the corporation on July 11 and 20, 1973. LSA-R.S. 47:1577 provides that the liens it creates “ * * * shall affect third parties only from the date of recordation and shall take their respective ranks by virtue of recordation.” Thus, mere assessment and recordation, without judicial proceedings per se, suffices under the taxation laws to give the State priority over third parties who subsequently perfect their rights.

We believe that in effect the procedure here employed by the State in collecting its taxes satisfies the requirements of LSA-R.S. 9:3102. LSA-R.S. 47:1561 specifies three alternative methods for the collection of taxes. Two of these methods utilize the courts and result in specific compliance with LSA-R.S. 9:3102. The other one, employed here by the Collector of Revenue, utilizes the simple non-judicial procedure of assessment and distraint. All three though have exactly the same effect. In fact, LSA-R.S. 47:1578(4) and LSA-R.S. 47:15-81 provide that assessments are the equivalent of judgments. To require the State to give up its statutory choice of enforcement procedures and compel it to proceed through the courts in every situation where an assignment of accounts receivable might be possible is not the object of the accounts receivable statute.

LSA-R.S. 9:3101 et seq. is der signed to provide for the assignment of accounts receivable without the necessity of giving notice to the debtors of the accounts assigned. Bossier Bank & Trust Co. v. Natchitoches Dev. Co., Inc., 272 So.2d 731 (La.App. 3 Cir. 1973), establishes that the purpose of LSA-R.S. 9:3102 is to secure the relationship between assignor and as-signee by preventing debtors from ignoring a recorded assignment. A prior recorded tax lien, irrespective of the procedure through which it is enforced, does not in any manner serve to defeat this purpose. The specific procedure through which a tax lien is enforced affects only the relationship between the tax debtor and the State and should have no bearing whatsoever on the relationship between the tax debtor, as assignor, and the assignee. Recordation of a tax lien clearly gives notice to debtors and prospective assignees of a tax debtor that there is a valid claim against the property of the tax debtor.

Accordingly, we hold the two tax liens recorded in July of 1973 prime the assignment of accounts receivable executed on August 23, 1973 and recorded September 24, 1973. We reverse the judgment of the trial court to this extent.

Having found that the two tax liens prevail, we now reach the issue of imputation of payments. Prior to trial the State collected a total of $19,316.32 to be attributed to the tax obligations of Christ-iana Bros. This sum is broken down as follows :

Voluntary cash payment by company $ 5,015.61
Collections from account debtors 11,933.71
Sale of vehicles (before expenses) 2,367.00
$19,316.32

Of the amount collected, the State imputed $3,963.38 to the tax lien recorded on July 11, 1973. The remainder was imputed to various unsecured tax obligations of Christ-iana Bros. Bonura Co. argues that the State should have imputed all payments to those debts secured by liens. We agree.

LSA-R.C.C. Art. 2166 provides:

“When the receipt bears no imputation, the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.
“If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionally.”

The jurisprudence interpreting this article has consistently held that a debtor has more interest in discharging a secured rather than an unsecured debt. Calatex Oil & Gas Co. v. Smith, 175 La. 678, 144 So. 243 (1932); Hammond Finance Co. v. Carter, 83 So.2d 682 (La.App. 1 Cir. 1955); Bedsole v. Lee, 78 So.2d 434 (La.App. 1 Cir. 1955). Accordingly, since the funds received from Christiana Bros, bore no directions as to imputation, all payments must first be imputed to their secured obligations. Further, by the clear wording of the article, the oldest among the secured debts must be discharged first.

The State relies upon LSA-R.C.C. Art. 2165 in support of its method of imputation. This article provides:

“When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.”

The cases decided under this article uniformly hold that the debtor waives his right to object to the imputation only when he has been given a receipt indicating the debt against which payment has been applied or when he has direct knowledge of the creditor’s imputation of the payment. Marks v. Deutsch Construction Co., 258 So.2d 676 (La.App. 4 Cir. 1972); Romero & Sons Lumber Company v. Babineaux, 151 So.2d 714 (La.App. 3 Cir. 1963). The present record is devoid of any indication that Christiana Bros, was aware of or had ever been informed of the State’s imputation of payments. Accordingly, the State’s reliance upon this article is unfounded. The payments must be imputed in accordance with LSA-R.C.C. Art. 2166.

Based upon our prior determination that the two State tax liens in the total amount of $15,225.27 prime the assignment of accounts receivable, we now hold that all funds collected by the State must first be imputed to these liens. The excess must then be imputed to the remaining secured obligations. The State acted incorrectly in its original imputations.

DECREE

Considering the appeal of Joseph Chris-tiana, IT IS ORDERED that the judgment in favor of Felix Bonura Company, Inc. against Joseph Christiana is affirmed, except that portion thereof awarding attorney’s fees of 25% under the continuing guaranty, which is now set aside and reversed in favor of Joseph Christiana, disallowing attorney’s fees.

Considering the appeal of the State of Louisiana, the judgment in favor of Felix Bonura Company, Inc. against the State of Louisiana, through the Department of Revenue, in the amount of $11,933.71 is set aside and reversed and there is now judgment rendered in favor of the State of Louisiana: decreeing that the two prior recorded tax liens prime the assignment of accounts receivable and the State of Louisiana is entitled to retain the full sum of $11,933.71 collected; ordering that all funds received by the State on behalf of Christiana Brothers Poultry Company of Gretna, Inc. be imputed as directed herein.

In all other respects, the judgment of the trial court is affirmed. Joseph Christiana is to pay all costs of the appeal.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

REDMANN, J., dissents for the reasons assigned by LEMMON, J.

LEMMON, J., dissents and will assign reasons.

LEMMON, Judge

(dissenting in part).

APPEAL BY JOSEPH CHRISTIANA

I disagree with the majority’s position that the continuing guaranty was a contract of suretyship, and I dissent from the ultimate holding that, under the facts and circumstances of this case, Joseph Christi-ana’s 1961 guaranty (which was merely an offer to become a surety) had not expired before the Bonura Company advanced credit on the open accounts which are the subject of this suit.

Operative Facts

In September, 1961 three Christiana brothers, Anthony, Nicholas and Joseph, incorporated their wholesale poultry business in Gretna, which they had formerly operated as a partnership. The Bonura Company initially supplied the Christiana corporation with chickens, but soon threatened to cut off credit because of slow payments. When the brothers offered to personally guarantee the account, the Bonura Company agreed to continue extending credit, relying principally on Joseph Chris-tiana’s endorsement.

Accordingly, in December, 1961, the three brothers executed a “Continuing Guaranty Agreement”, which provided:

“In consideration of your extending credit to Christiana Bros. Poultry Co. of Gretna, Inc. and/or Christiana Bros. Poultry Co. of Baton Rouge, Inc., we, and each of us jointly, severally and in solido, undertake and agree to guarantee, and each of us individually does guarantee, any and all obligations of Christiana Bros. Poultry Co. of Gretna, Inc. and/or Christiana Bros. Poultry Co. of Baton Rouge, Inc. only, without limitation, now owing, or which may in the future be incurred and owed, to Felix Bonura Company, Inc., for any reason whatsoever, up to but not to exceed the total sum of $250,000.
******
“This guarantee shall continue in full force and effect until such time as you shall receive from us, written notice of revocation, and such revocation shall not in any way relieve us from liability for any indebtedness incurred prior to the actual receipt by you in hand of said notice.”

The Bonura Company thereafter extended credit on a continuous basis to the two corporations.

In 1970 the Christiana brothers divided the stock in the two corporations, with Joseph divesting himself completely of all interest in the Gretna corporation.

Thereafter, Anthony and Nicholas owned and operated the Gretna corporation, and Joseph owned and operated the Baton Rouge corporation, although both corporations continued to purchase chickens from the Bonura Company. Felix Bonura, president of the Bonura Company, testified he was immediately aware of the division of the operations and soon learned that Joseph Christiana had divested himself completely of any interest in the Gretna corporation. However, Joseph Christiana did not revoke the continuing guaranty in writing.

The account charges on which this suit is based occurred between November, 1972 and August, 1973, long after Joseph Chris-tiana had left the Gretna business.

In November, 1972, after the account had become delinquent, Anthony Christiana executed a bank loan in the amount of $12,486.00, and the note was personally endorsed by Felix Bonura. Since the loan proceeds were used to pay off the corporation account, the effect of Bonura’s action was to relieve the corporation (and all sureties) of liability for the $12,486.00.

By March, 1973, the new account balance had risen to over $14,000.00, and no further charges were made to that account ledger, which thereafter showed only numerous $300.00 payments (down to $7,880.57). Apparently another account (entitled the “Current Account”) was started in March, 1973, and between then and August 7, 1973 purchases totaled about $300,000.00 and payments totaled over $240,000.00, the balance as of the later date amounting to over $46,000.00. Charges of about $20,000.00 in N.S.F. checks were also debited to the account in August, and the business ultimately closed operations.

The Bonura Company then sued the Christiana corporation on the open account and the three brothers on the continuing guaranty. After trial on the merits, judgment was rendered against the corporation and the three individuals in the amount of $67,809.73. Only Joseph Christiana appealed.

Applicable Law

A continuing guaranty is not a completed. contract of suretyship, but rather is a continuing and divisible offer to guarantee repayment of a loan or payment for goods sold — in effect, to become a surety. Trane Co. v. Christina, 260 So.2d 62 (La.App. 4th Cir. 1972). If the offeree timely accepts the offer by making a loan or by selling goods on credit, an irrevocable contract results. Texas Co. v. Hudson, 155 La. 966, 99 So. 714 (1924). However, an offer to become a surety is not binding upon the offeror until it is accepted by the offeree. Texas Co. v. Hudson, supra. Only upon acceptance does the original of-feror become surety for the debtor, and then only as to that particular debt.

Of course, the offer which is extended by means of a continuing guaranty (just as any other offer) may be revoked before acceptance. Even after one or more contracts have been made under the standing offer, revocation prevents consummation of any further contracts. Corbin, Contracts § 53 (1952).

The crucial issue in the present case is whether Joseph Christiana’s 1961 offer was revoked or otherwise expired before the credit was extended in 1972 and 1973.

The basic fallacy in the majority opinion is the reasoning that the "contract” obliged Joseph Christiana to provide written notice of revocation. Since the document was not a contract (but only a written offer), Joseph Christiana had no such obligation. There can be no obligation on the offeror unless he holds a right against another who is obligated. Unless both the offeror and offeree are obligated, neither is obligated (except insofar as the offeror may be obliged to keep the offer open for a reasonable length of time as a binding effect of his unilateral declaration of will).

Under the Civil Code an offer (not being a completed contract until accepted) is revocable before acceptance, but the of-feror must allow “such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.” (Emphasis supplied) C.C. art. 1809. Thus, an offeror binds himself by a mere offer only for a reasonable time. Furthermore, since an unaccepted offer- is not a contract, and since the offeror receives no consideration for merely making the offer, he incurs no enforceable obligation to keep the offer open beyond a reasonable time, and the offer may lapse or the offeror may expressly or tacitly revoke the offer, regardless of the written terms. The offer does not remain open for an unlimited time even if the offeree (who has no obligation whatsoever prior to acceptance) exacted contrary language in the written offer.

The determination as to what is a reasonable period of time for acceptance depends upon the facts and circumstances of the particular case. Acceptance need not be made immediately after the offer, but is timely if made before the offeror changes his mind “or may reasonably be presumed to have done so . . . .” C.C. art. 1804. If there is a change in the offeror’s intention, there can be no contract because of the lack of an accord of the wills, which is an essential element of any contract. Lit-vinoff, Offer and Acceptance in Louisiana Law: A Comparative Analysis, XXVIII La.L.Rev. 1, 35 (1967).

Under the facts of the present case Joseph Christiana must reasonably be presumed to have changed his intention about his offer to become surety for the Gretna corporation (at least as to future credit) when he sold all interest in the Gretna corporation, changing his position entirely from that which he occupied when he executed the agreement. The offer expired (or was tacitly revoked) when it became known to all parties that circumstances had changed so drastically between the time of execution of the guaranty and the time of the purchases at issue that he could not reasonably be presumed to intend to continue the offer in effect. Since at the time of these purchases there was no accord of the wills, there was therefore no contract.

The strongest argument for holding Joseph Christiana liable was that the Bonura Company extended credit in reliance on the guaranty which had not been revoked in writing. The determination of reliance, however, is merely a corollary of the determination of “may reasonably be presumed to have done so” under C.C. art. 1804. If the circumstances establish that the offeror should reasonably be presumed (by the offeree) to have changed his mind, then the same circumstances indicate that the offeree did not accept (by extending credit) in reliance on the offer still being open.

The record does not support the conclusion that the Bonura Company relied upon Joseph Christiana’s endorsement after the early years of operations. Felix Bonura knew, years before the purchases at issue, that Joseph Christiana had divested himself of all stock ownership in the Gretna corporation. Furthermore, there was testimony that the Gretna corporation earned a half million dollars in its first five years of operation, from which a reasonable (although not conclusive) inference can be drawn that Bonura no longer relied as heavily on Joseph Christiana’s original guaranty. Finally, when the delinquent account balance mounted in late 1972, Felix Bonura arranged and personally endorsed a bank loan for Anthony Christiana, indicating his complete reliance to that extent on that party. At no time did Bonura warn Joseph Christiana of the mounting indebtedness or of potential liability therefor.

Under the facts and circumstances of this particular case, Joseph Christiana’s 1961 offer to become surety for the account of the Gretna corporation was no longer subject to acceptance at the time of the charges at issue in this suit. The judgment holding him liable should be reversed.

APPEAL BY THE STATE OF LOUISIANA

Overshadowed by the prominence of the continuing guaranty issue is the following unrelated issue: Does the State’s filing of an assessment of sales and franchise taxes in the immovable property records make its lien then effective so as to outrank other claimants against movable property? The majority rules that it does, and I disagree.

R.S. 47:1577 provides that a tax obligation shall operate as a privilege on all property of the tax debtor, both movable and immovable, but shall affect third parties only from the date of recordation and shall take rank by virtue of recordation. Thus, Section 1577, while speaking of a privilege on movable property, limits its priority to that resulting by virtue of rec-ordation. Mere recordation, however, affords no priority whatsoever as to movables.

As to R.S. 47:1581’s provision that “the recordation of such assessment shall have the same effect as the recordation of a judgment”, the effect of recordation of a judgment is a judicial mortgage against immovables in the parish of recordation. Therefore, even without regard to the obvious due process problem, we should not interpret these statutes as requiring that mere recordation of a tax lien in the immovable, mortgage records results in a privilege which affects movable property and outranks subsequent claimants. Accordingly, the critical date in ranking the State’s privilege on the accounts receivable should be the date of distraint, not the date of recordation.

The assignment of accounts receivable assigned claims against named customers, and the assignee gave notice of the assignment to those customers five or six days before the State notified them of its seizure of those accounts. By the time the State seized, the accounts had already been effectively transferred under ordinary assignment law. C.C. art. 2643. Therefore, the accounts receivable belong (in pledge) to Bonura, except for the sales taxes included in the receivables and not previously paid to the State.

      .“The voluntary acceptance on the part of the creditor, of an immovable or any other property, in payment of the principal debt, is a full discharge of the surety, even in case the creditor should be afterwards evicted from the property so accepted.”

      . “The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.”

      . The dissenting judges express no opinion on this issue but agree in result.

      .“Except as is specifically provided in the laws regulating building and loan associations, any tax, penalty, interest or attorney fee due under the provisions of this Sub-title, shall operate as a lien, privilege and mortgage on all of the property of the tax debtor, both movable and immovable, which said lien, privilege and mortgage shall be enforceable in any court of competent jurisdiction in an action, at law, or may be enforced as otherwise provided by this Sub-title. The collector may cause notice of such lien, privilege and mortgage to be recorded at any time after the tax becomes due, whether assessed or not, and regardless of whether or not then payable, in the mortgage records of any parish wherein the collector has reason to believe the tax debtor owns property. The lien, privilege and mortgage created by this section shall affect third parties only from the date of recordation and shall take their respective ranks by virtue of recordation.”

      . “ * * * * (4) Notwithstanding any other provision of this Chapter, the collector, subject to the approval of the board of tax appeals, may compromise any judgments for taxes (including assessments, they being equivalent to judgments) which have been outstanding for more than three years, if no payments have been received during the eighteen months preceding the compromise and if in his opinion such action is in the best interest of the state. A complete record of all such compromises shall be kept by the collector and shall be open to public inspection.”

      . “Any tax, penalty, interest or other charges duly assessed under this Sub-title, being the equivalent of a judgment, shall not be subject to the running of any prescription other than such prescription as would run against a judgment in favor of the State of Louisiana in accordance with the Constitution and laws of this state; and the recordation of such assessment shall have the same effect as the recordation of a judgment.”

      . There was also a Christiana Bros. Poultry Co. of Baton Rouge, Inc., but the record does not show the date of incorporation.

      . This division occurred after the Gretna corporation had “trouble with Mercantile Finance out of Ohio . . . . ”

      . Common law theories of contract concur in this conclusion. Corbin, Contracts § 76 (1952) describes a continuing guaranty as an offer which empowers the offeree to accept many times. 38 Am.Jur.2d, Guaranty, § 1 (1968) also characterizes the continuing guaranty as an offer.

      . In the present ease Joseph Christiana did not give written notice of his intention to revoke the offer until after the charges had been incurred. However, since the continuing guaranty agreement (apparently prepared by Bonura) was not a contract, but merely an offer, Christiana was not bound by any terms of the mere offer purporting to continue the offer in effect beyond a reasonable period of time.

      . C.C. art. 1804 provides:
      “The acceptance needs [need] not be made by the same act, or in point of time, immediately after the proposition; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient.”

      . Arguably, Anthony and Nicholas Christiana, whose percentage interest in the Gretna corporation increased after the division, maintained their offer (although over ten years old) in effect and were personally liable on the account. Judgment was rendered against them personally, but since no appeal was taken by them, the issue as to their personal liability was not before this court.

      . The assignment did not contain the address of the principal place of business of the assignor and assignee. See R.S. 9:3103.


source: Caselaw Access Project

author:
LEMMON, Judge. GULOTTA, Judge SCHOTT, Judge
      STOULIG, Judge
     SCHOTT, Judge

license: Public Domain

text:
    Albert BLUM v. CHEROKEE INSURANCE COMPANY.
    No. 7333.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Order Granting Rehearing July 29, 1976.
    On Rehearing Sept. 14, 1976.

      Edward S. Bopp and Ronald A. Welcker, Arabie, for plaintiff-appellee.
    Emile L. Turner, Jr., New Orleans, and Malcolm B. Robinson, Jr., Metairie, for defendant-appellant.
    Before REDMANN, LEMMON, GUL-OTTA, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

The principal issue in this appeal is whether plaintiff’s suit against his insurer for hail damage to his residence was timely filed.

The pertinent provision in plaintiff’s insurance policy read:

“Suit. No suit or action on this policy, for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.” (Emphasis supplied)

Plaintiff allegedly discovered the roof damage on March 9, 1972, when water leaked through- the ceiling of his den and onto the carpet. He found damage to several sections of his roof and immediately notified his agent, Ralph Alvarez, who called the information to General Adjustment Bureau, who in turn dispatched Nolan Allain to investigate the claim.

When Allain visited the premises on March 27, plaintiff’s son showed him the interior damage to the ceiling. Unaware that the roof had been repaired, Allain denied the claim on the basis that only windstorm damage was covered by the policy and he found no damaged areas in the roof above the den.

At plaintiff’s request, Allain reinspected the roof on May 9, 1972, whereupon plaintiff informed him that the roof damage had been repaired and pointed out numerous shiny new shingles. Allain then told plaintiff to forward the bills, and he would submit them to the company for possible reconsideration of the previous denial.

Plaintiff testified that he (at unidentified times) inquired by telephone many times about the claim and was told by Al-lain that he was waiting to hear from the company. In this regard Allain testified without contradiction that he did not receive the bills from plaintiff until November, 1972.

The next event identifiable in the record by date was a letter dated April 5, 1973 (almost one month after the year had elapsed), from Allain to plaintiff, advising that he had written the company for instructions as to his claim. On May 7, 1973 Alvarez wrote to Allain, reminding him that three weeks earlier he had indicated the claim would be finalized and urging immediate action.

Thereafter, Allain took a written statement from plaintiff in September, 1973. The next month the insurer authorized Al-lain to offer to compromise the claim for 50% of the amount demanded. Plaintiff rejected the offer and eventually filed this suit in July, 1974.

Defendant filed an exception of prescription, which was tried and overruled by the trial court on the basis that the settlement offer (more than one year after the loss) invalidated the policy requirement that suit be filed within one year of the inception of the loss. After a subsequent trial on the merits, judgment was rendered in favor of plaintiff.

In this court defendant argues as to prescription that the trial court erred in excluding from evidence a signed non-waiver agreement because the document was undated. Defendant’s purpose in obtaining plaintiff’s consent to this agreement was to allow investigation and negotiation without an admission of liability or a waiver of any policy terms. We perceive no detriment to defendant, however, by the exclusion of this document. R.S. 22:651 (which was not called to the trial judge’s attention) clearly provides the same protection that defendant sought in obtaining the agreement.

We construe R.S. 22:651 to mean simply that mere investigation or negotiation do not alone constitute a waiver of an insurer’s right to claim the benefits of an applicable policy provision. Nevertheless, such actions by an insurer can constitute part of an implied waiver or of a lulling process. Between the cases involving mere negotiations and those involving outright promises to pay, there are a myriad of cases in the hazy area, each of which must be decided on its own facts and circumstances.

Thus, the crucial determination in the present case is whether the overall actions of the insurer’s claims adjuster, during the year after the casualty, led plaintiff to reasonably believe the insurer would not require compliance with the policy provision that suit must be filed within a year.

This record contains absolutely no proof, direct or circumstantial, that plaintiff withheld suit in reliance on any words or actions by the insurer or its adjuster. During the year following the loss there was no admission or recognition of liability; no assurances of payment; no late request for additional information or for time to investigate the claim further; no intentional delay of adjustment beyond the limitation period; and no prolonged or continuous negotiations, lasting through most of the limitation period, which might tend to hold out a reasonable hope of amicable adjustment. See cases annotated in 29 A.L.R.2d 636 (1953).

Furthermore, plaintiff did not even mention in his testimony that he was aware of the time limitation, nor did he give any reason for disregarding the limitation. His entire evidence of lulling during the year after the loss was testimony that the adjuster told him in May he would submit the bills and recommend payment. Apparently no one did anything further until plaintiff forwarded the bills six months later.

There was no further evidence (identifiable as to date) that the insurer made any other representations or took any other action (before the March anniversary date) on which plaintiff could have reasonably concluded the claim would be paid without the necessity of filing suit. Plaintiff vaguely testified as to telephone conversations in which the adjuster told him he was waiting to hear from the company, but there was no testimony these conversations took place before the adjuster’s April, 1973 letter advising plaintiff he had written the company for instructions. Furthermore, these innocuous conversations (even if before the anniversary date) could not reasonably have induced plaintiff to withhold filing suit or seeking legal advice.

In order to find waiver or lulling in this case, we would be required to hold that mere pendency of a claim effects a waiver of the time limitation. This we are unwilling to do, particularly in view of the fact that the legislature established the time limitation and declared that the limitation would not even be affected by investigation or negotiation. The time limitation in the policy is not a period within which the insurer must deny the claim, but rather one in which the insured must assert the claim judicially. Unless the insurer in some manner leads the insured to reasonably believe the time limitation has been waived while the claim is under consideration or in some other way acts so as to induce the insured to withhold suit, the suit must be filed within the prescribed period even if the claim is still pending.

The case of Brocato v. Sun Underwriters Ins. Co. of N. Y., 219 La. 495, 53 So.2d 246 (1951), relied on by plaintiff, is factually dissimilar to the present case. In the Brocato case the insurer admitted liability immediately after a severe hurricane, but because of the tremendous volume of claims to be adjusted did not reach agreement as to the amount of the loss within one year, although several adjusters were sent to examine the damage before and after the anniversary date. When suit was filed and prescription pleaded, the court held:

“(A)n admission of liability together with other acts and conduct on the part of the insurer, and other circumstances such as appear in this case, from which the insured is induced to believe that his claim would be settled without suit precludes the insurer from invoking the limitation clause of the policy.”

Numerous cases have held that when liability is admitted but the parties cannot agree on the amount of the claim, the insurer cannot invoke the time limitation unless it has paid the portion admittedly due (or the amount it considered to be the reasonable value of the loss) and denied liability for the remainder without prejudice to the disputed portion of the claim. See 41 A.L.R.3d 1111 (1972). Indeed, in Bowler v. Fidelity and Cas. Co., 53 N.J. 313, 250 A.2d 580 (1969), the court held that this rule applies in the case of the insurer’s mere silence as to liability when all pr part of the claim is clearly due.

In the present case, however, the insurer did not admit liability at any time and in fact had originally denied liability. Furthermore, the evidence did not establish that all or part of the claim was clearly due.

We are unable to conclude from this record either that defendant intentionally waived the time limitation contained in the policy or that plaintiff withheld suit in reasonable reliance on words or actions by the adjuster. Plaintiff’s suit must therefore be dismissed as untimely filed.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered dismissing the suit.

REVERSED AND RENDERED.

REDMANN, J., dissents for the reasons assigned by GULOTTA, J.

GULOTTA, J., dissents and assigns reasons.

SCHOTT, J., concurs and assigns reasons.

GULOTTA, Judge

(dissenting).

I dissent. It appears from the testimony that Allain lulled plaintiff into believing that he ultimately would be paid for the damage. While it is clear that plaintiff, to some extent, contributed to the delay, nevertheless, plaintiff indicated that he called Allain on several occasions without success and also contacted his insurance agent in order to obtain help on this claim. Ralph Alvarez, the insurance agent, stated that Allain did not say the claim would be dishonored. According to Alvarez, Allain conveyed the impression that he, Allain, was going to honor the claim. I am of the opinion that the record supports a conclusion that plaintiff was lulled into believing that he would be paid the full amount of his claim, and continued in that belief because of Allain’s actions in not denying full payment until October, 1973, when a 50% offer was made. A suit filed in July, 1974, was timely since it was filed within one year from the date of the offer, October, 1973. See O’Neal v. American Equitable Assurance Company of New York, 162 So.2d 384 (La.App.2d Cir. 1964), writ refused, 246 La. 366, 164 So.2d 357 (1964), cited in Gremillion v. Travelers Indemnity Company, 256 La. 974, 240 So.2d 727 (1970). I would affirm the judgment of the trial court.

SCHOTT, Judge

(concurring).

Since plaintiff’s claim had prescribed under the pleadings he had the burden to prove that he was lulled into inaction by the defendant. The last contact plaintiff had with defendant was in November, 1972, three months before prescription date. Plaintiff put in no evidence to support his theory of being lulled during this three month period, and little if any evidence to support his theory of being lulled during the six months preceding.

I concur in the result reached by the majority.

ORDER

The court has considered the application for rehearing filed by Albert Blum, and

IT IS ORDERED that a rehearing be granted. The court will notify counsel of the time and date of rehearing and will allow opportunity for filing further briefs.

STOULIG and SCHOTT, JJ., dissent from granting the rehearing.

ON REHEARING

We granted a rehearing to consider plaintiff’s argument that the insurer held him “on a string”, in that the insurer’s inaction in holding the claim under consideration without acceptance or denial passively lulled him into withholding suit. Arguably, circumstances may occur in which an insurer takes a claim under consideration, and the insured for some reasonable period thereafter delays consulting counsel (and incurring a fee) while awaiting an acceptance or denial of the claim. However, the record in this case does not establish that the period of plaintiff’s delay in taking action in the first year after the casualty was a reasonable period.

After an initial denial of the claim based on the March damage, the insurer’s agent reinspected in May and agreed to reconsider the claim. Insofar as this record shows, the only contact between the parties during the remaining ten months before the anniversary date was plaintiff’s forwarding of the bills in November. While we agree that the insurer in exercising good business practices should have communicated a decision to its insured within a reasonable time after receiving the bills (and possibly subjected itself to penalties and attorney’s fees in a timely filed suit by not doing so), we cannot say that the insurer’s inaction between November and March either (1) constituted a waiver of the policy requirement of suit within one year, or (2) caused the insurer to change his position to his detriment, thereby estopping the insurer from asserting the policy provision. Indeed, plaintiff did not file suit until July, 1974, ten months after the insurer made the 50% compromise offer and 28 months after the casualty.

For these reasons and the reasons assigned in our opinion on original hearing, our judgment on original hearing is hereby reinstated. Each party is to bear its own costs.

REDMANN and GULOTTA, JJ., dissent.

STOULIG, Judge

(concurring).

I concur for the reasons stated in the original opinion.

SCHOTT, Judge

(concurring).

I concur in the result.

      . This wording is mandated by statute, R. S. 22:691 F. See also Gremillion v. Travelers Indem. Co., 257 La. 537, 240 So.2d 727 (1970).

      . We here mention a conflict in dates as a circumstance not explained in the record. Alvarez’s records showed he received the “immediate” notice from plaintiff on March 24. Allain’s records showed Alvarez informed him that March 18 was the date of the loss. A written statement given by plaintiff to the adjuster 18 months later also lists March 18 as the loss date. Yet plaintiff’s bill for roof repairs was dated March 9, the repairs took three or four days, and plaintiff marked the bill “Pd. ck. 1471. 3/12/72.”

      .In a point of minor conflict plaintiff testified Allain also said he would recommend that the claim be paid. Allain did not recall this statement, but did not deny making it.

      . R.S. 22:651 provides:
      “None of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
      “(1) Acknowledgment of the receipt of notice of loss or claim under the policy.
      “(2) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or in-completed.
      “(3) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim.”

      . The insurer’s actions after the year has elapsed may provide some indication of the effect of the insurer’s actions during the year or may otherwise be of some evidentiary value. Nevertheless it is only the insurer’s actions within the year after the loss (if those actions lull a claimant into detrimental inaction) that can give rise to an estoppel situation.
      The insurer’s actions after the year may also provide some evidence bearing on the determination of waiver. See Waiver and Estoppel in Louisiana Insurance Law, XXII La.L.Rev. 202 (1961). In this respect, however, we would be disinclined to discourage an insurer, presented with a claim after passage of the period for filing suit, from considering part payment of the defensible claim to a longtime loyal insured (such as plaintiff, who had been a policy holder for 20 years).

      . The insurer originally defended on the basis that plaintiff had the damage repaired before giving notice, thus depriving it of an opportunity to inspect the damage or to secure lower estimates for repairs, and that the bill for roof repairs was dated prior to the stated date of the loss.


author: MORIAL, Judge. MORIAL, Judge. STOULIG, Judge

text:
    Guy E. BABIN, Individually and as Administrator of the Estate of the minor, Guy E. Babin, Jr. v. ZURICH INSURANCE COMPANY et al.
    No. 7515.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    On Rehearing Sept. 14, 1976.

      Donald P. Schwarz, Matthew J. Hill, Jr., Robert B. Chopin, Mitairie, for plaintiff-appellee.
    John P. Hammond, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellants.
    Before GULLOTTA, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

The sole issue in this appeal is whether the conduct of a 3j4 year old child can exculpate a dog owner from the consequences of his dog’s actions.

On May 19, 1972 Guy E. Babin, Jr., age 3j4 years, was bitten about the face and shoulder by a dog owned by defendant, Richard X. Patin, while the child was a guest in the Patin home. As a result of the accident, the child was taken to the Mercy Hospital emergency room where his wounds were sutured. He was released later that day and his sutures were eventually removed one week later.

Plaintiff, Guy E. Babin, individually and as administrator of the estate of the minor, Guy E. Babin, Jr., filed suit against defendants, Richard X. Patin and his liabilty insurer, Zurich Insurance Company. After trial on the merits, plaintiff was awarded judgment in the full sum of $3,470.61 representing $2,250.00 in general damages; $1,200.00 in future medical expenses; and $20.61 in past medical expenses. Defendants appeal contesting the trial court’s finding of liability and alternatively contesting the award of $1,200.00 for future medical expenses.- We affirm.

Defendants contend the jurisprudential rule that a dog owner is presumed to be liable for the consequences of his dog’s actions does not apply in this case because the victim here precipitated his injury by pulling the dog’s tail.

Plaintiff contends, the trial court ruled as a matter of law, that it is no defense on the part of the dog owner to show that the reason the dog bit the child was because the child pulled the dog’s tail.

Defendants’ position is based upon the rule in Holland v. Buckley, La., 305 So.2d 113 (1974) that:

“ * * * The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of the third person for whom he is not responsible, or by a fortuitous event.”

We believe, as did the trial judge, that Guy E. Babin, Jr., a 3(4 year old child is incapable of fault and, therefore, his actions cannot bar his recovery.

Defendants admit that a 3(4 year old child is incapable of contributory negligence. They assert, however, that the "fault of the victim” which serves to exculpate a dog owner from the consequences of his dog’s actions is in this situation broader than and not synonymous with negligence. They further assert that such a restrictive interpretation of the term fault does injustice to the underlying reason for the dog owner’s liability, i. e., that between the person who created the risk of harm and the innocent victim injured thereby, the risk creator should bear the loss. We disagree.

In discussing the actions of a child, the terms negligence and fault have been used interchangeably. In Barnes v. Shreveport City R. Co., 47 La.Ann. 1218, 17 So. 782 (1895) the court stated:

“We may dispose of the defendant’s charge of contributory negligence in respect to the child by observing that it was only three years old, and incapable per se, of contributory fault;” (emphasis ours).

Furthermore, as noted by the trial judge, Black’s Law Dictionary, 4th Ed.Rev., defines the civil law concept of fault as “negligence ; want of care.”

A child of tender years is incapable of appreciating the consequences of his actions and, therefore, cannot be held accountable for them. See Westerfield v. Levis, 43 La.Ann. 63, 9 So. 52, 55, (1891). In effect, a 3(4 year old child can never be other than an innocent victim. We believe this view is not inconsistent with the balancing test which forms the basis of the dog owner’s responsibility. Whether the child pulled the dog’s tail or not,, he remains an innocent victim who has been injured by one who created the risk of harm. Therefore, the risk creator, the person who maintains the animal for his own use or pleasure, must bear the loss.

Additionally, we find the award of $1,-200.00 for future medical expenses to be supported by the record and within the trial judge’s “much discretion.” A plastic surgeon, Dr. Louis Krust, testified that on his second examination of the child on April 18, 1975 he found residual scarring which caused a slight cosmetic deformity when the child smiled. He estimated the fee for corrective surgery of this condition to be approximately $1,300.00. As pointed out by defendants, he also noted the scar was not visible from a distance of 12 feet, that he could not guarantee success from the procedure and that he would not recommend further surgery without parental insistence.

In order to recover future damages, a plaintiff must prove by a preponderance of the evidence that he is reasonably certain to incur such damages. Gurley v. St. Paul Fire & Marine Underwriters, Inc., 242 So.2d 298 (La.App. 4 Cir. 1970). Although the record is devoid of any indication on the part of Mr. and Mrs. Babin that they intend to have surgery performed on their son, the fact remains that the scarred condition might be improved by the surgery. Undoubtedly, the child, as he grows older, will have increasing participation in the decision as to whether or not to undergo the surgery. The final decision will not rest exclusively with the parents. Accordingly, we believe the probability of the child incurring future medical expenses has been sufficiently proven.

For the foregoing reasons, the judgment of the trial court is affirmed. Defendants are to pay all costs.

AFFIRMED,

Before GULOTTA, STOULIG and MORIAL, JJ.

ON REHEARING

MORIAL, Judge.

For the reasons stated in the original opinion the judgment of the district court is affirmed.

AFFIRMED.

STOULIG, J., dissents.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The liability of the defendant-owner for the injury caused by his dog arises under C.C. art. 2321, which has been interpreted by the Supreme Court in the case of Holland v. Buckley, La., 305 So.2d 113 (1974). Mr. Justice TATE stated in the majority opinion at page 119:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.” (Emphasis added.)

Holland clearly stands for the concept of fault without negligence and specifically ruled that Article 2321 is an exception to and in addition to any right of recovery on the basis of negligence under Article 2316. It therefore follows in the instant matter unless the owner can prove that the dog bite was caused by the victim, a third person for whose actions he is not responsible, or a fortuitous event, then the judgment of the trial court decreeing the defendant liable in damages must be affirmed under the presumption of fault — not negligence—

The presumption of fault imposed under Article 2321 is not conclusive but a rebut-table one. As pointed out in the Holland case, an owner may overcome this presumption of fault and exonerate himself from liability by proving that the jury resulted from a cause not imputable to him. In my opinion the defendant has carried this burden.

The uncontradicted evidence clearly establishes that young Guy Babin, while in the home of the defendant, pulled the tail of the dog without incident. Despite being cautioned not to do so, young Babin pulled the tail of the dog a second time which caused it to react and bit him.

The majority opinion excuses the conduct of the child by equating fault as being synonymous with negligence. Such an interpretation is not in accord with Holland v. Buckley, supra. That case holds that ownership of an animal in itself creates a presumption of fault and does not involve the issue of negligence and/or contributory negligence. The conduct giving rise to recovery under Article 2321 has been characterized as “nonnegligent fault.” Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), points out that while all negligence can be dealt with as a fault concept, all fault cannot be treated in terms of negligence.

It is conceded that a three-and-a-half-year-old boy lacks the maturity and mental capacity to be adjudged guilty of contributory negligence. Though the action of the child in pulling the dog’s tail cannot be legally classified as contributory negligence it does fall within the category “that the harm was caused by the fault of the victim” thereby rebutting the statutory presumption of the owner’s fault and exonerating him from liability.

I am also not in accord with the majority that the plaintiff is entitled to $1,200 for future cosmetic surgery to the child’s face. There is no testimony that such action is contemplated, and the plastic surgeon testified that he would not recommend it and would only perform such a procedure at the insistence of the parents.

Parenthetically, I note the parent with whom the victim resides could ultimately be liable to the nonnegligent dog owner under the theory of Turner v. Bucher, 308 So.2d 270 (La.1975). Although their young child is not legally negligent for provoking the dog, it is her “delict” that caused the dog owner to be cast in judgment here. Under a strict liability theory, the Supreme Court in Turner held that even though the parents had no control over the actions of their young son, they were liable for his delict. As in this case, the Bucher child had not reached the age and/or maturity where his own conduct could be measured by negligence standards.

For the foregoing reasons I am of the opinion that the judgment of the trial court should be reversed.

      . Case notes 49 Tul.L.Rev. 724 (1975).


author: BEER, Judge.

text:
    Kevin P. CAZES et al. v. Laura C. RAGUSA et al.
    No. 7704.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1976.

      Murray & Murray, Ltd., Julian R. Murray, Jr.,' New Orleans, for plaintiffs-respondents Kevin P. Cazes et al.
    Porteous, Toledano, Hainkel & Johnson, William W. Miles, New Orleans, for defendants-relators.
    Louis A. Hyde, Jr., New Orleans, for plaintiff-respondent Gary A. Haisch.
    Before SAMUEL, STOULIG and BEER, JJ.
   BEER, Judge.

We granted a writ of certiorari to review the judgment of the district court dated February 27, 1976, which dismissed the defendant-relators’ rule to show cause why the case should not be returned to the jury docket of the Civil District Court.

A review of the record indicates that plaintiffs, Kevin P. Cazes, et al (respondents, here), filed suit against the defendants, Laura C. Ragusa, wife of/and Ronald J. Ragusa and State Farm Insurance Company (relators, here), in the Civil District Court for the Parish of Orleans on July 8, 1974. They sought damages in the amount of $260,100.00, and, in their original petition, expressly demanded trial by jury.

Issue was joined and the case was placed on the jury docket of the Civil District Court to await trial by jury in accordance with plaintiffs’ timely demand for same.

Subsequently, for reasons of their own (and after considerable delay due, in part, to the understandable fact that earlier trial dates can usually be obtained for non-jury cases), plaintiffs decided to waive their demand for jury trial and so advised the court which, thereupon, ordered the case transferred to the non-jury docket to await trial. Defendants had not consented in any way to this and, upon being notified of the transfer, sought to have the matter returned to the jury docket by provoking a hearing on a rule to show cause why the case should not be so returned. It was from the dismissal of this rule that writs were sought by defendant-relators and granted by us.

It is apparent from the record that considerable pre-trial activity has taken place in this case, and that the trial judge, to a substantial extent, has, quite properly, participated in same. Such activity took place with all parties, including the trial judge, fully aware of the fact that the case would eventually be tried by jury. Although it may only be conjectural to believe that the attorneys representing the various parties might have gone about their professional business, at least vis-a-vis the trial judge, in a different or perhaps more guarded way had the case been set for judge trial, we need not delve into those possibilities in order to resolve this matter. For, we find no merit whatsoever in the contention that a party who has not originally demanded trial by jury is, somehow, obliged to duplicate that demand when it is obvious from the record that another party has made the demand and that the case has, pursuant to that demand, been placed on the jury docket. We agree with that portion of Judge Culpepper’s opinion in Huntsberry v. Millers Mutual Fire Insurance Co., 199 So.2d 196 (La.App. 3rd Cir., 1967), which states:

“In other words if a timely and proper demand for jury is made all other parties in the action who are affected by the demand may rely thereon and need not make a jury demand for issues embraced therein.” (Emphasis ours.)

A party who has demanded .trial by jury does have the right to make timely withdrawal of such demand and to take action which would precipitate an order of court transferring the case from the jury docket to the non-jury docket. However, when this is the case, any other party to the litigation must be accorded sufficient procedural protection to permit him to then interpose his demand (if any he may have) for trial by jury.

Since neither party can, without his neglect or consent, be deprived of his right to jury trial and since no other party to the suit is required to duplicate a request for jury trial, any withdrawal of the request for jury trial by the original party seeking and obtaining same must, necessarily, entitle the other parties to an opportunity to make a timely request for jury trial in their behalf.

We conclude that relators, relying upon original plaintiffs’ request for, and subsequent grant of, a jury trial, must not be prejudiced by plaintiffs’ withdrawal of that request and must be accorded a right to timely file their request upon receipt of the notification of plaintiffs’ request being withdrawn.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans dated February 27, 1976, dismissing the defendant-relators’ rule to show cause why the case should not be returned to the jury docket, is reversed and set aside, and it is now ordered, adjudged and decreed that this matter be and the same is hereby remanded to the Civil District Court for the Parish of Orleans with the following directions :

From the date upon which this record is reipanded and again lodged in the Civil District Court for the Parish of Orleans, relators (defendants, here) shall, in accordance with LA-C.C.P. Article 1732, have ten days within which to take such action as is necessary to perfect their demand for trial by jury. This accomplished, the Civil District Court for the Parish of Orleans shall reset the matter for trial by jury and shall render such orders for the accomplishment thereof consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.


author: STOULIG, Judge.

text:
    STATE of Louisiana v. Ronald Anthony BOUVIER.
    No. 7725.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 1976.

      Darleen M. Jacobs, New Orleans, for Ronald Anthony Bouvier.
    Giles J. Duplechin & Associates, Rhett M. Powers, Gretna, for Theresa Bouvier Hooper.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

On its own motion, this court has inquired into its jurisdiction to entertain this appeal from the action of the juvenile judge in amending appellant’s rights of visitation with his two minor children. The inquiry was prompted by the fact that there was no written or signed judgment of the court’s decree in the record.

A review of the record reveals this matter originated with the filing on November 3, 1972 of the charge of Criminal Neglect of Family against appellant. On December 5, 1972, appellant was found not guilty and on this date the parties apparently submitted to the jurisdiction of the court for the purpose of setting child support in a stipulated amount and the fixing of the father’s right of visitation every Sunday between the hours of 9 a. m. and 8 p. m. There also appears a minute entry on November 25, 1975, extending the appellant’s right of visitation, pursuant to his rule for this purpose, from 10 a. m. Saturday to 6 p. m. Sunday on every weekend. The next minute entry, dated December 3, 1975, is the setting of a rule for contempt against the mother for violation of the court’s orders of visitation and a counter rule filed against the father to have the hours of visitation reduced. Both rules were consolidated for trial and resulted in the court’s finding that the mother was not guilty of contempt and reducing the father’s rights of visitation to every Sunday from 10 a. m. to 6 p. m. to be exercised in the home of the mother unless the minor children were willing to leave the premises with their father. It is from these rulings that the appellant has appealed.

The record also reflects there is a typewritten statement dated January 13, 1976 setting forth the rulings of the court, purporting to be a minute entry, which is neither initialed, signed nor certified. The transcript also contains the written reasons signed by the presiding judge which were rendered subsequent to the date of the hearing as requested in a written motion filed by appellant’s attorney on January 14, 1976.

This uninitialed minute entry does not constitute a judgment within the contemplation of C.C.P. art. 1911 nor does the signed written reasons for judgment fulfill the requisites of this codal article, which provides: “Except els otherwise provided by law, all final judgments shall be read and signed by the judge.”

The juvenile court of Jefferson Parish being a court of record must render and sign its final judgment in the same manner as any other court of record — that is, in compliance with C.C.P. art. 1911. This conclusion is consistent with the provisions of R.S. 13 ¡1591(A) governing appeals from juvenile courts, which mandates: “ * * * Appeals from any final judgment of a juvenile court must be taken within fifteen days after said judgment is signed * * (Emphasis added.) This provision evinces the absolute necessity that the final judgment in a juvenile court proceeding must be in writing.

We now must consider whether an order fixing the rights of visitation is a final judgment. It is indisputable that once it attaches, the juvenile court retains jurisdiction during the minority of the children and may amend, modify or rescind its orders affecting the custody, support and welfare when the best interest of the minors so dictates.

The mere retention of jurisdiction with the right of modification and rescission does not change the character of an order fixing rights of visitation from a final to an interlocutory judgment. The order of visitation is dispositive of the rights of the parties under the attendant circumstances at the time of its rendition. It is clothed with the presumption that it will continue until a change in conditions or circumstances warrant its modification or revocation in the best interest of the minors. An aggrieved party wishing to appeal from such a decree or order must do so within 15 days of the signing of the judgment and this appeal period does not commence to run until it is signed. Conversely if the aggrieved party fails to appeal within this prescribed time, the order of visitation becomes final and is incontestable thereafter except for a change in circumstances affecting the best interest of the children. We therefore conclude that a judgment setting forth a parent’s right of visitation is a final judgment and must comply with the provisions of C.C.P. art. 1911.

Accordingly we dismiss this appeal without prejudice.

APPEAL DISMISSED.

      . Mestayer v. Mestayer, 302 So.2d 342 (La.App.3d Cir. 1974).

      . R.S. 13 ¡1696(A).

      . Being dispositive of the merits of the father’s right of visitation and not a preliminary matter in connection therewith, the judgment cannot fall within the classification of an interlocutory judgment as defined by C.C.P. art. 1841.


author: LOTTINGER, Judge

text:
    Charles R. CRAMER and Murray J. Cadenhead, d/b/a Cramer & Cadenhead Realtors v. Gregory GUERCIO et al.
    No. 10519.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Cornelius J. Hyde, III, Baton Rouge, for appellant.
    Wm. J. Doran, Jr. and Wm. T. Kivett, Baton Rouge, for Guercios.
    Chapman L. Sanford, Baton Rouge, for Board of Realtors.
   LOTTINGER, Judge

(dissenting).

I respectfully dissent from the opinion of the majority, La.App., 331 So.2d 550.

The question before the Court is whether under the facts presented the plaintiff real estate broker was the procuring cause of the sale in question.

Briefly, during the existence of the primary term of the listing agreement, the house and lot in question were advertised in a newspaper, and the buyers because of this advertisement attended an open house on November 4, 1973, at which time an offer to buy was made. This offer was extremely low and never transmitted to the sellers. Again, on November 11, 1973, the buyers attended a second open house and made a second offer which was transmitted to the sellers and rejected. The original listing agreement expired on November 15, 1973. The buyers contacted Tony Bourgeois, a realtor, on November 25, 1973, after seeing a Guaranty Agency, Inc. sign in the front yard of the subject house. It is obvious from the testimony of the buyers that they never really lost interest in the house since they first visited it. Bourgeois, acting for the buyers, contacted this new agency on December 3, 1973. On December 14, 1973, an offer was made and accepted on December 17, 1973. One month and ten days after the buyers first saw the house, they ultimately made an offer that was accepted.

The majority cites Sleet v. Williams, 291 So.2d 495 (La.App.3rd Cir., 1974) as defining “procuring cause’’ to mean the same thing as “efficient cause” or “proximate cause”, and to mean a “cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, * * *.” However, a look at the facts in Sleet v. Williams, supra, will point out that the efforts of the real estate agent ended in May of 1971, and a sale was brought about in November, 1971, by the efforts of someone else. Some five months intervened between the breaking off of negotiations and the ultimate sale.

In the instant case, however, it was only from November 15, 1973, the date the original listing agreement expired, to December 3, 1973, the date Bourgeois contacted the new real estate agency for the buyers, that one could conclude no negotiations were taking place. I do not agree that there was a break in the continuity of the initial efforts by the plaintiff agency in the instant proceeding so as to declare that the plaintiff’s efforts were not the procuring cause of this sale.


author: GULOTTA, Judge. PER CURIAM.

text:
    Succession of Louis CAVALLINO.
    No. 7861.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Per Curiam July 6, 1976.
    See also La.App., 336 So.2d 911.

      Paul F. Rogyom, Kenner, for mover-ap-pellee, Anthony L. Cavallino.
    John R. Neyrey, in pro. per.
   ON MOTION TO DISMISS

Before REDMANN, GULOTTA, and BOUTALL, JJ.

GULOTTA, Judge.

This matter is before us on a motion to dismiss. The basis of the motion is that “court costs” were not paid by appellant to the clerk of the trial court. We deny the motion.

On October 20, 1975, the trial judge signed an order granting appellant a sus-pensive appeal, returnable to this court on December 30, 1975. On April 27, 1976, the trial judge signed an order refusing any further extensions. According to the ap-pellee, the record was not lodged in this court on the extended return day because the “court costs” had not been paid.

LSA-C.C.P. art. 2126 states:

“Art. 2126. Payment of costs
The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”

It is well settled that when the failure to timely pay transcript costs or appellate court filing fees is imputable to the appellant, the appeal will be dismissed. See Succession of Silas v. Marciante, 301 So.2d 367 (La.App. 4th Cir. 1974). However, appellee is not complaining that the costs of preparing the record, transcript costs or filing fee was not paid. The complaint is that the accumulated court costs in the trial court (apparently not including costs of preparing the record, transcript costs or filing fee in the appellate court) were not paid.

A $250.00 suspensive appeal bond was filed on November 24, 1975. The purpose of this bond is to guarantee payment of any court costs incurred. Appellant has ■ satisfied the guarantee for payment of court costs by posting the required bond. Under the circumstances, a motion to dismiss based on a complaint that court costs have not been paid is without merit. The motion is denied.

MOTION DENIED.

PER CURIAM.

The application for rehearing is not considered. See Rule XI, § 6 of the Uniform Rules — Courts of Appeal.

      . Rule XI, § 6 of the Uniform Rules-Courts of Appeal states:
      “Section 6. An application for rehearing will not he considered when the judgment of the court has merely overruled a motion to dismiss an appeal or when, for any other reason, the judgment of the court has not finally disposed of the appeal; nor will an application for a rehearing be considered when the court has merely granted or refused to grant an alternative writ of mandamus, prohibition, other remedial writ or a rule nisi.”


author: SAMUEL, Judge.

text:
    Succession of Louis CAVALLINO.
    No. 7976.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    See also, La.App., 336 So.2d 909.
    Paul F. Rogyom, Kenner, for mover-ap-pellee.
    John R. Neyrey, Metairie, in pro. per.
    Before SAMUEL, LEMMON and BEER, JJ.
   ON MOTION TO DISMISS

SAMUEL, Judge.

This is a motion to dismiss a suspensive appeal on the ground the appellant failed to pay to the clerk of the trial court, not later than three days prior to the return day or extended return day (the last extension of the return day expired on April 27, 1976), all costs of preparing the record on appeal and the filing fee required by this court to lodge the appeal, as required of an appellant by Code of Civil Procedure Article 2126. The record on appeal has not been lodged in this court.

A similar motion, based on the same ground, previously was filed in this matter by the present mover. That previous motion was denied by us, because mover at that time did not complain or point out that the costs of preparing the record or the filing fee had not been paid; the complaint was only “that the accumulated court costs in the trial court (apparently not including costs of preparing the record, transcript costs or filing fee in the appellate court) were not paid”.

Annexed to the present motion to dismiss is an affidavit by the deputy clerk of the trial court in charge of preparing the records on appeal to this court. The affidavit is dated July 2, 1976. It states the affiant is personally acquainted with the suspensive appeal here involved; the total court costs in the trial court amount to $290.40, of which amount $238 is attributable to preparing the record on appeal; said total costs are past due and owing; and that the appellant has not paid the filing fee of $25.

The above described affidavit is the only evidence before us. Although given an opportunity to do so, the appellant has not responded to the motion to dismiss.

Thus, the evidence now establishes that the failure to timely lodge the appeal is due to the failure of the appellant to make timely payment of: (1) all costs of preparing the record on appeal; and, in addition, (2) the filing fee required by this court. Our settled jurisprudence is that under these circumstances the failure to lodge the record on the last extended return day is imputable to the appellant and his appeal must be dismissed.

For the reasons assigned, the motion to dismiss the appeal is granted and appellant’s appeal is dismissed at his cost.

MOTION GRANTED; APPEAL DISMISSED.

      . Succession of Louis Cavallino, 336 So.2d 909, handed down by this court on June 9, 1976.

      . Mabou v. Thomas Jefferson Ins. Co., La.App., 321 So.2d 786; Martin v. Travelers Ins. Co., La.App., 313 So.2d 342; Thibodeaux v. St. Paul Mercury Ins. Co., La.App., 310 So.2d 860; Miller v. State Through Dept. of Hospitals, La. App., 304 So.2d 421; Succession of Silas v. Marciante, La.App., 301 So.2d 367; Shreveport Wholesale Credit Men’s Ass’n., Inc. v. Seaburg, La.App., 300 So.2d 663; Cefalu Supply, Inc. v. Park Place Homes, La.App., 299 So.2d 432; Huff v. Caldwell, La.App., 297 So.2d 463; Tillman v. Natural Gas & Oil Co., La.App., 295 So.2d 198; Tropicana Hotel and Country Club v. Dantoni, La.App., 287 So.2d 817; Morgan v. Redman Lake Park, Inc., La.App., 233 So.2d 47; Portier v. Marquette Casualty Company, La.App., 146 So.2d 46; see also 2A La.Dig. §§ 370, 371.


author: HALL, Judge.

text:
    Roberta Sue Martin LOYD, Plaintiff-Appellant, v. Winford Ray LOYD, Defendant-Appellee.
    No. 12983.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    Eugene J. Coen, Shreveport, for plaintiff-appellant.

      James E. Franklin, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

The wife sued her husband for a separation on the grounds of abandonment and cruel treatment. The husband reconvened asking for a separation on the grounds of cruel treatment. In preliminary proceedings the parties agreed that the wife would have possession of their house and temporary care and custody of their four minor children and that the husband would pay child support in the amount of $75 per month for each child. Following trial on the merits, for reasons dictated into the record, the trial judge decided neither the husband nor the wife had shown cause for a separation and rejected their demands. The wife appealed. We affirm the judgment of the trial court.

The parties were married in 1957 and had five children, four of whom were minors at the time they separated in November, 1975. The husband moved out of their home in November but the wife admitted she asked him to leave. He only took part of his things and, in fact, moved back into the house after a couple of weeks, whereupon the wife left with the children. It is not disputed that he made efforts at reconciliation but the wife told him it was too late. Under these facts, the wife is not entitled to a separation on the grounds of abandonment.

The wife’s principal complaints of cruel • treatment were that the husband, over a period of several years, continuously nagged her and their children, griped, was harsh on the children, required her to work against her will, worked the graveyard shift at a plant a considerable distance from home, physically qbused her in the past, and struck her on the day they separated. The wife’s testimony was corroborated by that of a friend only to the extent that there were arguments and a strained relationship between the husband and wife.

The husband denied any acts of cruelty against his wife. He testified that their troubles began about three years • before when they got into financial difficulty requiring them to enter into a wage earner plan under federal bankruptcy law. The wife went to work to help pay their bills and according to the husband worked overtime against his wishes. The husband testified the wife refused to have anything to do with him sexually and told him he would have to sleep in a separate bedroom.

The trial court found there was evidence of constant bickering and incompatibility and that it was probably too late to expect the marriage to be saved. The court found, however, that neither party proved the other was at fault or proved cruel treatment by the other sufficient to serve as grounds for a separation from bed and board. The wife’s testimony was denied by the husband and was essentially uncorroborated.

Under existing Louisiana law and jurisprudence, a continued pattern of mental harassment, nagging and griping by one spouse directed to the other can constitute cruel treatment, but mutual incompatibility, fussing and bickering cannot.

The evidence, or lack thereof, supports the decision of the trial court, with which decision we are in agreement. The judgment is affirmed at appellant’s costs.

Affirmed.