author: PONDER, Justice.

text:
    214 La. 259
    HAAS et al. v. DEZAUCHE et al.
    No. 38576.
    Supreme Court of Louisiana.
    July 2, 1948.
    Application for Rehearing Withdrawn Oct. 4, 1948.
    Edward Dubuisson, of Opelousas, for defendants-appellants.

      Frederick E. Greer, of Shreveport, and W. C. Perrault and Leon S. Haas, Jr., both of Opelousas, and J. S. Atkinson, of Shreveport, for plaintiffs-appellees.
   PONDER, Justice.

The plaintiffs brought jactitation proceedings against the defendants alleging that the defendants were slandering their title to the NEJ4 of the SWJ4 of Section 20j T 6, R 7E, located in St. Landry Parish by asserting rights in this property under recorded mineral deeds and mineral leases. The proceedings were opposed by the defendants on the ground that the plaintiffs did not have the necessary possession to maintain the suit and in the alternative the defendants set up their title to the property. The plaintiffs interposed a plea of ten years acquisitive prescription under title translative of property. On trial of the case, the lower court gave judgment in favor of the plaintiffs and the defendants have appealed.

We have arrived at the conclusion, after a careful consideration of the evidence, that the plaintiffs and their authors have been in possession of the property continuosly for more than ten years under a translative title. The reason for our conclusion will be fully set out in this opinion. In view of this conclusion, the superiority of the title is of no moment. If the defendants’ title was of earlier origin, it could not prevail over the plaintiffs’ and their authors’ possession of the property for a period of more than ten years under a title translative of property.

The land involved in this suit is a portion of land acquired from the United States under Act of Congress, March 2, 1849, c. 87, 9 Stat. 352. The defendants’ ancestors in title, Abner Smith and Robert R. Chapman, were issued patents to this property by the State of Louisiana on June 26, 1896. The defendants, the Smith and the Chapman heirs, executed deeds conveying mineral interest in the property and mineral leases to the defendant Dezauche, all of which were duly recorded. The plaintiffs claim that these instruments are casting a cloud on their title.

The plaintiffs trace their title to a deed executed on January 27, 1900, wherein the State of Louisiana, through the Auditor and the Register of the State Land Office, transferred a tract of land containing 18,335.84 acres, including the forty acres in dispute herein, to the Board of Levee Commissioners of the Red River, Atchafalaya and Bayou Boeuf Levee District. After various transfers this large tract of land eventually became the property of J. E. Dunlap. Dunlap transferred the land in its entirety to Leonce M. Soniat on April 9, 1915. Soniat entered into a timber contract on February 5, 1917 with Soniat and Deblieux, Inc. giving the corporation the right to remove the merchantable timber from the entire tract of land in consideration of the payment of a stipulated sum per thousand feet of the timber removed and the payment of the taxes during the life of the contract. During that same year the corporation entered into a contract with E. S. Moorman & Son authorizing the cutting of ash timber on a stumpage basis on the portion of the tract of land lying south of the Colorado Southern Railroad, which ran through the land. The corporation also entered into a contract with A. A. Waterhouse Lumber Company, Inc., in the same year authorizing the cutting and removing on a stumpage basis all ■the hardwood timber from 17,000 acres of this land, except the ash timber lying south of the railroad. Timber operations under these contracts began in 1917 and continued through 1920. In removing the timber a number of ox teams were used when the water conditions permitted. This large tract of land is subject to periodical overflow and is traversed by a number of watercourses. Gas boats and a steam boat were used to tow the timber through these watercourses. From sixty to one hundred and fifty men were used in removing the timber. During the operations, which covered a period of three years, timber was removed from practically all portions of the land, except the forty acres in dispute. The operations were generally known and not interfered with. Most of the outer limits of the entire tract were 'blazed when these operations started. The operations were very extensive in 1919 and the corporation built a tramroad from Krotz Springs to a point near Mary King Lake, located in the center of the southern portion of the land and near the forty acres in dispute. The timber was loaded with •a steam loader on flatcars at that point and hauled by locomotives to the railroad at Krotz Springs. Many float roads and log roads were opened during these opérations. Between the years 1920 and 1924, the corporation conducted timber operations on this tract of land and a spur was built some four miles long in the northeast portion of the lands lying north of the railroad. Timber operations were carried on by the Deblieux Lumber Company, the successor of the corporation, until 1927, •at which time most of the merchantable timber had been removed. Thereafter, a cooperage company cut all of the timber suitable for the manufacture of staves from the entire tract of land, except the forty acres in dispute. All of the timber operations were carried on under the original timber contracts by various successors. These stave operations continued until some time in 1929. Timber was removed from various portions of these lands under contracts with the plaintiffs from 1929 to 1941.

The plaintiffs and their predecessors in title have paid taxes on the property since it was first acquired from the levee board. The plaintiffs have executed various mineral leases, including the lease to their present lessee, the Gulf Refining Company, and assignments since the year 1926. A number of timber contracts executed by the plaintiffs and their predecessors have been recorded since 1917 in the records of St. Landry Parish. Geophysical operations were conducted on the lands from 1936 to 1944. The forty acres in dispute was explored for oil in 1938. There has been drilling and completion of oil wells on portions of the land. Surveys have been made and roads have been built in connection therewith. It appears that a road had been recently built across the forty acres in dispute.

The evidence shows that this large tract is swampland and subject to annual inundation. The evidence further shows that the land is valuable only for its timber and minerals.

It is no longer open to dispute that the cutting and removing timber from open swampland is a sufficient character of possession to support the prescription of ten years if the operations are general in character and carried on for a considerable length of time when accompanied by public ' signs showing an intention to possess the land, . suoh as building roads and other works and the payment of the taxes. We recently reviewed and approved the jurisprudence to this effect in the case of Veltin v. Haas, 207 La. 650, 21 So.2d 862. The evidence in the present case conclusively shows that the plaintiffs and their predecessors have exercised dominion over the entire tract of land since 1917.to the date that this suit was filed in the only manner that the nature of the land would permit. This dominion has been open and notorious by the many acts performed on the land and the many contracts placed of record, together with the payment of the taxes.'

The defendants contend that where several contiguous tracts of land are conveyed in the same deed that the rule, of possession of part of an estate is sufficient, does not apply as provided in Article 3437, Revised Civil Code, which reads as follows:

“It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.”

In support of their contention they cite Section 208, d, page 911, 1 Am.Jur., Adverse Possession; 2 C.J.S., Adverse Possession, § 187 d, page 786. The authorities cited are not pertinent because we are governed by the rules set out in our Civil Code dealing with prescription. We have pointed out in many decisions, handed down by this Court construing Article 3437 of the Civil Code, that the possession of a part of a tract of land described in a deed is possession by virtue of the deed and it extends to the limits of the area described in the deed. It was pointed out recently in two decisions handed down by this Court, after reviewing the jurisprudence of this State and especially the case of Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648, that the provisions in Article 3437 of the Civil Code to the effect that it is sufficient for a person intending to take possession of an estate to enter upon and occupy part o-f the land, provided that he intends to. possess all that is included in the boundaries, that the word “boundaries” means an inclosure or physical boundaries if the possession be without a deed, but if the possession be by virtue of a deed the possession extends to the limits stated in the deed. See Snelling v. Adair, 196 La. 624, 199 So. 782; Long v. Chailan, 196 La. 380, 199 So. 222, and the authorities cited therein. The entire tract of land forms but one estate and even if portions of it separately describe in the same deed it in reality forms but one tract. It was treated as such by all of Soniat’s predecessors in title and at the time possession of it was taken by Soniat. The possession is coextensive with the title or deed and extends to the .limits described in the deed.

The defendants ■ are under the impression that our holding in the case of Nixon v. English, 207 La. 906, 22 So.2d 266, is contrary to the jurisprudence and is to the effect that the cutting of timber on lands where there were no marked boundaries was insufficient possession .to support the plea of prescription. Our decision in that case is to the effect that the occasional cutting of trees on an isolated tract of land unaccompanied by any public signs is not sufficient to support the plea. In mentioning the various public signs indicating possession, we mentioned boundary lines as one indicating the possessors control and dominion over the property. We did not mean to convey the idea that the marking of boundaries was sacramental. It is only one of the means of indicating dominion over the property.

The defendants contend that the rule, that the possession of part of a tract of land conveyed by a deed will extend to the whole tract, is not applicable under the facts in this case. They take the position that the rule is based on a reasonable inference that the possession of a part is an intention to possess the whole and that the evidence affirmatively shows that the plaintiffs never intended to take possession of the forty acres in dispute. They state in their brief that the plaintiffs have carefully and scrupulously avoided1 taking possession of the land in dispute and instructed their employees not to enter it for timber operations because they and the plaintiffs’ authors did not believe they owned it or had doubts about the ownership.

The land in controversy lies adjacent to an acreage which appears to be owned by one Whitman. The superintendent of Soniat Deblieux Lumber Company, who was removing timber by contract, testified that in the year 1928 a Mr. Schultz, who was looking after the Whitman property, interrupted their operations near the land in controversy because there was a dispute as to the property lines. He stated that it was a policy of his company, on account of the small amount of timber on the lands, to stay far enough away so as not to encroach on the property of another. A witness, who had been an employee of the A. A. Waterhouse Lumber Company, testified that there was some confusion concerning the eighty acres of land lying south of the Whitman property, which includes the land in dispute, and that he was instructed by the superintendent not to cut the timber on that land because there was some doubt as to its ownership. He stated that this occurred in the year of 1922. A witness, who worked for the timber contractors, stated that two persons, employees of the timber contractors, informed him that they did not .know who owned the land. A witness testified to the effect that they, meaning himself and the timber contractors, didn’t know who owned the land and didn’t think anyone did. He stated that the foreman of one of the timber contractors gave him instructions not to cut the timber on the land in dispute because the company didn’t own it. All of these statements were made by employees of Soniat and Deblieux, Inc. and subsequent timber contractors who did not own the land. There is nothing in the. record to show that the plaintiffs or their predecessors ever disclaimed ownership to the land in dispute.

The statements of the employees of the corporation and the timber contractors cannot be imputed to Soniat and we cannot assume that they were made under his direction. The timber operations began in 1917 and the first statement that was made by any of these employees indicated a doubt as to the ownership of the land was made in 1922 after the timber operations had been carried on for more than five years. Good faith is always presumed in matters of prescription and the person alleging bad faith must prove it, Article 3481, Revised Civil Code. Possession by virtue of a title leads to the supposition that the possession commenced in good faith, Article 3487, Revised Civil Code. The possession having commenced in good faith the intention of retaining the possession is presumed unless there appears a decidedly contrary intention, Article 3443, Revised Civil Code. Moreover, if there was a subsequent bad faith it would not prevent the prescription, Article 3482, Revised Civil Code.

There is no proof in the record that Soniat commenced his possession in bad faith and we must presume that his possession, under his title, commenced in good faith. In the absence of any evidence showing a decidedly contrary intention on the part of Soniat and his successors in title, it must be presumed that they intended to retain the possession of the entire tract of land, including the -forty acres in dispute. Moreover, the retention of Soniat’s possession is not inconsistent with the timber contractors refraining from cutting and removing the timber by reason of Schultz’s protest and an intention not to cut the timber until the question of the title was settled would not prevent Soniat or his successors in title from retaining the possession that Soniat had previously acquired. Screen v. Trainor, 172 La. 51, 133 So. 359.

For the reasons assigned, the judgment is affirmed at appellants’ cost.

O’NIELL, C. J., absent.

MOISE, J., takes no part.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    SEARCY v. GULF MOTOR CO. et al.
    Mo. 18974.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1948.
    Normann & Jones, of New Orleans, for plaintiff-appellant.
    Robert J. Pitard, of New Orleans, for defendants-appellants.
   JANVIER, Judge.

Plaintiff attempts to obtain the return of $100 paid to defendants in connection with an abortive attempt to purchase a used 1939 model Buick automobile. He charges that he paid this amount on account of the purchase price of the car and that when the sale was not consummated he demanded the return of the amount which he had paid on account. He also prays for damages and attorneys’ fees.

Defendants deny that there was any contract of sale and aver that the amount paid was earnest money given in connection with an agreement to sell, which never ripened into an actual sale because plaintiff failed to pay the balance which was contemplated in the agreement to sell. They aver that because of plaintiff’s failure to pay the balance, he forfeited the amount which was deposited as earnest money. They aver also that, as a result of plaintiff’s failure to carry out his agreement, they sustained a loss in excess of the amount of the earnest money.

There was judgment for defendants dismissing the suit and plaintiff has appealed.

Counsel for plaintiff now concedes that plaintiff is not entitled to damages nor to attorneys’ fees and the sole question before us is whether plaintiff is entitled to the return of the amount paid to defendants when the agreement was entered into. Though the written agreement is not in the record, counsel agree that it reads as follows:

“Date May 3, 1947
“Received from Mr. Gabriel Searcy, Jr.
The sum of One Hundred Dollars
Deposit on 1939 Buick
Balance to be paid $ by May S, 1947
Date
Purchaser Seller
Gabriel Searcy Gulf Motor Co.
Address ■ ■ ■ - 2420 Canal St.”

It is conceded that a few days after the second payment was to have been made, defendants sold the same automobile to a third party and, though it was at first contended that a loss had been sustained, it seems clear that the price received was the same as that which the plaintiff had agreed to pay.

Plaintiff testified, and it is not disputed, that the price agreed upon for the automobile was $895; that it was agreed that he was to pay $100 on account of the purchase price and that he paid this, and that on May 5th, two days later, he was to pay $200 in cash; that the balance was to be financed under arrangements to be made by defendants and that he was then to obtain delivery of the automobile. Plaintiff says that in payment of the $100 he turned over to defendants a check made payable to him for $100 but that at that time he did not endorse it over to defendants because he wanted to make certain that if the contract was not consummated he would not lose this amount. He says also that a representative of defendants called on him and asked him to endorse the check and that when he stated his reason for not endorsing it in the first place, he was told that he need have no worry and that if the contract was not consummated his money would be returned, to him.

Defendants deny this and offer evidence tending to show that when plaintiff paid the $100 in connection with the agreement, he was warned that if he did not pay the balance when due he would forfeit the amount which he had paid. On this question we are una'ble to 'believe, after a reading of the record and after considering the circumstances, that any such warning was given and we conclude that there was no distinct or express understanding as to whether the amount paid was to be considered as earnest money to be forfeited should plaintiff default, or was to be considered as a payment on account of the purchase price. From this counsel for plaintiff argue that the contract must be considered as evidencing a complete contract of sale and not as an agreement to sell, and counsel further argue that, going a step further, if the amount is to be considered as a part of the purchase price and not as earnest money, defendants may not retain it but must return it to the plaintiff, although they may claim as damages such loss, if any, as they may have sustained if the contract was breached by plaintiff.

Counsel for defendants, on the other hand, maintain that the agreement was merely one to sell and not a contract of sale, and that when plaintiff defaulted by failing to pay the balance which was due, the agreement to sell was terminated and they were within their rights in reselling the automobile and retaining the earnest money.

There is an abundance of jurisprudence on the question of the distinction between a contract of sale in connection with which a payment on account of the purchase price is made and a deposit made as earnest money in connection with an agreement to sell. We reach the conclusion that Livingston v. Southport Mills, 173 La. 120, 136 So. 289, 290, sets forth the present view on the subject and that unless there is an express stipulation to the contrary or unless the facts clearly show that the parties intended the contrary :

“ * * * Where one, under a contract to purchase, deposits money on account of the purchase price, the money so deposited is earnest money, though intended at the time of the consummation of the agreement, by the passage of the sale, to be applied on the purchase price. * * * ”
In a very interesting article in 6 Tulane Law Review at page 129, “Sales — Recovery of Deposit — Earnest Money — Art. 2463, La.Civil Code of 1870,” appears the following :
“ * * * With the exception of the case of Nosacka v. McKenzie, 1911, 127 La. 1063, 54 So. 351, following Provenzano v. Glaesser, 1908, 122 La. 378, 47 So. 688, which case was overruled in Maloney v. Aschaffenburg, 1918, 143 La. 509, 78 So. 761, the jurisprudence in Louisiana has been uniform in establishing the rule that any money deposited by the vendee at the time of the contract to sell is presumed to be earnest money, even though it is referred to by the parties in their contract as being paid on account of the purchase price. Collins v. Desmaret, 1893, 45 La.Ann. 108, 12 So. 121; Capo v. Bugdahl, 1906, 117 La. 992, 42 So. 478; Legier v. Braughn, 1909, 123 La. 463, 49 So. 22 * * *.”

The author of that article, referring to another exhaustive discussion of the subject in 11 Loyola Law Journal 121, “The Function of Earnest Money in the Civil Law of Sales,” says:

“ * * * The jurisprudence since Maloney v. Aschaffenburg, supra, has so firmly established the foregoing rule, that it is now necessary for the parties, if they do not wish to forfeit the right of specific performance, to incorporate an express 'provision in their contract negativing any presumption that the sum deposited is earnest money. * * * ”

In this latter article the author makes the following statement (page 137):

* * * As a general statement, it may be said that there is a decided tendency on the part of the Supreme Court to construe an agreement to be a promise to sell rather than a contract of sale.”

But even if the amount deposited became earnest money when the contract failed of execution, we find ourselves confronted with the question of what was the effect of the resale by defendants to a third party.

We have no doubt that defendants would have been within their rights in reselling the car if before reselling it they had obtained from plaintiff an express, unequivocal statement to the effect that he could not comply with his agreement and that the car might be resold or if they had given express and unequivocal notice putting the vendee in default and setting forth an intention to resell the article. See Gilly et al. v. Henry, 8 Mart., O.S., 402, 13 Am.Dec. 291; Henderson v. United States Sheet & Window Glass Co., 168 La. 66, 121 So. 576; 4 Tulane Law Review 92, “Right of the Vendor to a Resale After Title Has Passed.”

But the record leaves no doubt in our minds that plaintiff did not expressly and unequivocally terminate his rights under the agreement. On the contrary, there were obviously discussions and disputes as to what were the rights of the parties to the agreement.

It thus became necessary for defendants before reselling the car to establish their right to do so. Articles 2046 and 2047 of our Civil Code control this situation. They read as follows:

“Art. 2046. A resolutory (dissolving) condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution, with damages, or, if the circumstances of the case permit, demand, a specific performance.
“Art. 2047. In all cases the dissolution of a contract may be demanded 'by suit or by exception; and when the resolutory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.”

In Southport Mill, Limited v. Ansley, 160 La. 131, 106 So. 720, the Supreme Court considered the effect of these articles in a contract presenting facts somewhat similar to those before us, though involving real estate, and said that legal action is necessary to terminate such a contract.

In 4 Tulane Law Review 94 appears the following;

“ * * * The Louisiana Civil Code clearly and without ambiguity provides that a dissolution of a sale can be effected only through the medium of the courts, and cannot take place by virtue of the will of one of the parties. * * *

The only distinction between a case involving an immovable and one in which a movable is the subject of an agreement seems to be that where an immovable is the subject of the contract, if suit is brought to dissolve the contract because of default, the court is given discretion to grant additional time for performance. See 4 Tulane Law Review 97. In this very comprehensive article the author discusses the effect of a resale by the vendor where the vendee has failed to pay the purchase price agreed upon and says that it seems to be established in Louisiana that whether the contract be one “of sale” as a result of which title has passed to the vendee or merely an agreement to sell, as a result of which title would not be passed until payment of the purchase price, the result is the same and that if there has not been an express and unequivocal agreement by the defendant or an express notice of intention to resell if the vendee does not comply with his agreement, the only remedy is for the vendor to resort to legal action to dissolve the contract and thus obtain the right to resell. If this is true then it matters not whether the contract involved here was an agreement to sell or was a contract of sale. This -rule was followed in a case in which the Supreme Court held that the contract was one “to sell” and not “of sale” for in Southport Mills v. Ansley, supra, the court said that the contract was “a mere offer to sell” and “did not purport to transfer title,” and then held that legal action was necessary to dissolve it. For very interesting discussions of this question sec the articles already referred to in 6 Tulane Law Review 129 and 11 Loyola Law Journel 121. See also Mossy Motors v. McRedmond, La.App., 12 So.2d 719.

Our conclusion is that whatever might have be.en the rights of defendants to retain the deposit had they brought suit to dissolve the contract or had they obtained the express and unequivocal agreement of plaintiff to consider the contract as dissolved, or had they expressly put the vendee on notice of intention to■ resell, they had no right on their own “ipse dixit” to declare the contract breached, to resell the automobile, and to retain the amount of the deposit. It may well have been that, had they brought suit to dissolve the contract, plaintiff could have been able to show that the contract was not breached as a result of his fault. On the other hand, when plaintiff brought this suit it may be that defendants, as provided in Article 2047 of the Civ’il Code, may have ‘“demanded * * * by exception” that the contract be considered dissolved. Had they done so successfully, they could then have had the right to resell the automobile and, under the authority of Livingston v. Southport Mill, supra, they might have had the right to retain the amount deposited. But having resold the automobile without their right having been expressly agreed to or judicially recognized, they have, we think, lost the right to retain the amount of this deposit. If, as a result of the 'breach of the contract, they are entitled to damages that is a matter with which we are not concerned at this time.

The judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of plaintiff and against defendants in the full sum of $100.00 with legal interest from judicial demand. Cost to be paid by defendants.

Reversed.


author: McBRIDE, Judge.

text:
    CONRAD v. ROUSSELL.
    No. 18996.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1948.
    Arlice Roby Crockett, of New Orleans, for plaintiff and appellee.
    L. W. Cockfield, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

The focal point in this appeal is whether the survey made by an expert surveyor, appointed by the trial court to fix the boundary line between respective properties of the plaintiff and defendant, was made in conformity with law, and whether it is sufficient to serve as a basis for the judgment rendered in favor of plaintiff and against defendant, from which judgment defendant has taken this appeal.

Plaintiff, owner of Lot 12, Square 98, Fifth District of New Orleans, claims that the boundary line between his property and that of Lot 11, owned by defendant, which adjoins Lot 12 on its side, has been wrongfully established, and that the fence which purports to divide the properties, and a garage building of defendant, encroach upon Lot 12. The petition further alleges that the original markers have b*een lost, destroyed or removed, and prays for the appointment of a surveyor to determine the true line, for judicial establishment of the boundary, and for an order directed to defendant to remove the encroachments. Although the appointment of an expert surveyor by the court is sought, plaintiffs prayer is that the boundary be fixed m accordance with a survey made by L. J. Stewart, Surveyor, on August 12, 1946 (a private survey which plaintiff had made some months before the present suit was filed).

Defendant denied the incorrectness of the present boundary and specifically denied that the fence or garage encroach on plaintiff’s lot. He alleges that the fence and garage were placed in their present locations in accordance with a survey which he had made by his own surveyor, J. J. Krebs, on September 21, 1946.

In due course, E. L. Eustis, the expert appointed by the court, filed his proces verbal and a blue print of a survey made by him on March 27, 1947. The survey embraces the whole of Square 98 and fixes the line between Lots 11 and 12 at a point hopelessly irreconcilable with the lines shown on either the Stewart or the Krebs print. Eustis’ survey depicts the fence and garage as encroaching on Lot 12 to a greater extent than Stewart shows them to encroach.

Counsel for defendant excepted to the Eustis survey and proces verbal well before the date fixed for the trial, and the court, after hearing Eustis’ testimony during the trial, overruled the exception and homolo-gated the survey and proces verbal. Judgment was ultimately rendered against the defendant as prayed for, and the showings of Eustis were adopted as the basis for the judgment.

Counsel for defendant, before us, has reurged the exception and contends that the trial judge erroneously accepted Eus-tis’ findings, as the survey and proces verbal were not made in the manner directed by law and were unattended by the formalities provided by the Revised Civil Code, in that the survey “was made out of the presence of your defendant as well as that of his surveyor and representative.”

Before proceeding to a discussion of the objection, it first becomes necessary to determine whether this suit involves an action in boundary, or is of a petitory nature in view of plaintiff’s demands that defendant be ordered to remove the fence and building from the strip of laud of which plaintiff claims to be the owner. If the case is strictly a boundary action, it was encumbent upon plaintiff to show that Eus-tis’ work was done in conformity w.ith law, otherwise his survey and proces verbal could not be accepted and serve as the basis for a judgment. On the other hand, if the matter is to be likened to a petitory action, no such showing need have been made, as the ownership of the disputed strip as well as the division line could have been proved by any competent evidence.

We find that the question has been adjudicated on several occasions, and it is well settled that actions involving demands exactly similar to those involved in the instant case are classified as actions in boundary. Vicksburg S. & P. R. Co. v. LeRosen, 52 La.Ann. 192, 26 So. 854; Opdenwyer v. Brown, 155 La. 617, 99 So. 482; Anding v. Smith, La.App., 189 So. 362; Henly v. Kask, La.App., 11 So.2d 230.

The object of an action in boundary is to separate physically one estate from another and mark the limits of each by visible bounds. The limits may be fixed judicially or extra judicially, but in either case “it must be done by a sworn surveyor of this State, who shall be bound to make a proces verbal of his work in the presence of two witnesses, called for the purpose, who shall sign the proces verbal with him, or mention shall be made therein of the causes which prevented them from signing.” R. C.C. art. 833.

It is the mandatory duty of the surveyor to conform to certain prescribed rules and to clothe his work with certain prescribed formalities according to the following pertinent articles of the Revised Civil Code :

Art. 834: — “Whenever any surveyor is called on to fix the limits between adjacent estates, it is his duty to notify, in writing, the owners interested therein to be present at the work, if they think proper, and to inform them of the day and hour when he will proceed to fix the limits; and he is bound to make mention in his proces verbal of the notice he may thus have given, of the names of the parties notified, and of the date of notice; and the surveyor shall make a record of his proceeding, and of the plans drawn by him, in order that copies may be delivered to the parties who may require them.”
Art. 835: — “If the parties thus notified, their representatives or attorneys in fact, appear at the fixing the limits, the surveyor appointed for the purpose is bound to demand of them their respective title papers, which they are bound to deliver to him in good faith, if they have them in their possession, in order that the surveyor may determine, by examining them, in what place to fix the boundaries.
“If the parties thus notified, or their representatives or attorneys in fact, refuse to deliver their title papers, the surveyor shall make mention of their refusal in his proces verbal, and of the causes they have alleged, if they have assigned any, for their refusal.”
Art. 836: — “The surveyor shall not set up his boundaries, until he shall have finished the whole work, and until then he must mark his lines of separation by pickets stuck in the ground for that purpose.”
Art. 837: — “If, before the surveyor has finished the work, or set up the boundaries, the parties -interested, or any of them, shall make opposition thereto, the surveyor must desist, and refer the parties to the count, to have a decision on their respective rights, after having made mention of the opposition in his proces verbal, and the reason for the same, if any be alleged.”

The proces verbal shows that the notices required by art 834 were given to the interested owners to be present at the property at a designated time for the purpose of making the survey. Continuing, the document recites:

“ * * * with a sincere desire to save the time of all parties at interest, I went to Algiers the day before the actual time fixed for making the actual survey. From 8:00 A.M. until well into the afternoon hours of Wednesday, March 26, 1947, I ran the property lines of Atlantic, Pacific, Eliza and Evelina Streets, * * *
“The next day, at the appointed hour, and having previously prepared the plan of my findings, I once again visited the scene of this survey. I was met by Mr. Conrad, the Plaintiff, Mr. Roussell, the Defendant, Mr. Cockfield, the Attorney for the Defendant, and by Mr. Krebs, Surveyor, who had surveyed the property of the Defendant. I explained to each and every one just what I have outlined here and gave them my reasons for making the survey the day previous. I conducted all parties at interest completely around the Square and pointed out the markings of my four base lines (one on each Street). Finally, I gave all present a blue print of my findings * * (Italics ours.)

Eustis, in his testimony, also frankly admitted that the survey had been made the day before that fixed in the notice, and that when the parties appeared on the appointed day they were handed a blue print of the completed survey.

In view of the circumstances under which the expert performed his work, we are of the opinion that the trial court should have rejected his report. Under codal article 837, the parties interested, or any of them, are given an opportunity, before the work is finished, to make opposition, in which case the surveyor must desist and refer the parties to the court to have an adjudication of their respective rights. By his completion of the work before the time designated in the notice, Eustis denied the parties their substantial right of witnessing the work as it progressed, and deprived them of their right to register objections, if they had seen fit to make any, and the notice to them was ineffectual and was equivalent to no notice at all.

It clearly appears that, the formalities of law not having been complied with by the expert, the survey could not validly be used as evidence in the case, and under no circumstances should it serve as the basis for the judgment rendered.

In view of our conclusions above, we have decided to remand this case to the lower court for the purpose of having the properties resurveyed by an expert, and for a retrial. There is authority for this procedure. Lindsay v. Wright, 27 La.Ann. 565.

It is, therefore, ordered that the judgment herein be reversed, and it is decreed that this case be remanded to the court below for a new trial, to be proceeded with in accordance with the views herein expressed, appellee to pay all costs of this appeal.

Reversed and remanded.

REGAN, J., absent, takes no part.


text:
    PANCOAST v. COOPERATIVE CAB CO. et al.
    No. 18982.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1948.

      J. I. McCain, of New Oleans, for plaintiff-appellee.
    Kullman & Lang, of New Orleans, for defendants-appellants.
   JANVIER, Judge.

The intersectional collision from which this litigation results took place at the corner of Howard Avenue and Camp Street, in the City of New Orleans, at about 1:30 o’clock in the early morning of Sunday, December 21, 1946. The two vehicles which were involved were a Chrysler taxicab, going in a downtown direction on Camp Street, and a Ford Tudor Sedan of plaintiff, going in Howard Avenue towards the Mississippi River. The taxicab struck the Ford on the right side. The Ford was turned over and both cars were severely damaged.

Paul V. Pancoast, the owner of the Ford, brought this suit in the Civil District Court for the Parish of Orleans, alleging that the accident was caused solely by the negligence of the operator of the taxicab. He alleged that $600 was the depreciation in value of the Ford resulting from the damage sustained and he prayed for judgment for this amount against John D. Byrnes, the owner of the taxicab, James Martin, the driver whose correct name later was shown to be Eugene Sola, and Cooperative Cab Company, which corporation plaintiff alleged had “posted and furnished bond as required by law for the protection of any person, including petitioner, who may be damaged or injured by the operation of United Cab Company taxicabs, including the taxicab in this case, * *

The three defendants answered, admitting the occurrence of the accident and that at the time the driver of the taxicab was operating it in the course of business and that it was owned by Byrnes and was bonded or insured by Cooperative Cab Company. Defendants denied that the driver of the taxicab was in any way at fault and averred that, on the contrary, the driver of plaintiff’s Ford, his son, Paul V. Pancoast, Jr., was entirely at fault. And, in the alternative, that it should appear that the driver of the taxicab was in any way negligent, then defendants especially pleaded the contributory negligence of the said Paul V. Pancoast, Jr.

One of the defendants, John D. Byrnes, the owner of the taxicab', then assumed the position of plaintiff in reconvention, and, alleging that the accident had resulted solely from the negligence of plaintiff’s son, Paul V. Pancoast, Jr., and that the said son at the time was operating the Ford with the full knowledge and consent of Paul V. Pan-coast, Sr. and “for their joint use and benefit” and that the cost of repairing the damage sustained by the taxicab amounted to $425, prayed for judgment in reconvention for that amount against Paul V. Pan-coast, the owner of the Ford and plaintiff in the main demand, and Paul V. Pan-coast, Jr., who was operating it at the time of the accident.

After a trial on the merits, judgment was rendered for plaintiff as prayed for in the sum of $600 against defendants, John D. Byrnes, James Martin and Cooperative Cab Co., in solido, and the reconventional demand was dismissed. All of the defendants have appealed.

During the course of the trial in the District Court counsel for Paul V. Pan-coast, Jr., objected to the introduction of any evidence which might be produced or relied upon to show liability in reconvention in him. This objection was based on the ground that since Paul V. Pancoast, Jr., was not a party plaintiff, he could not be made a party defendant in the reconven-tional demand. Counsel for Paul V. Pan-coast, Sr., at the same time, objected to the introduction of any evidence tending to show liability in him for any negligence of his minor son, in the event that it should be contended that that liability resulted from the fact that his son at the time of the occurrence was a minor residing with his father.

This objection was directed at the fact that the petition in reconvention contains no allegations of fact on which can be based the legal conclusion that Pancoast, Sr., could be held liable for the negligence of his minor son residing with him, the sole allegation as to 'the reason for imputing the negligence of Pancoast, Jr., to Pancoast, Sr., being that the son was operating the car of the father for their joint use and benefit.

The district judge ruled that Paul V. Pancoast, Jr., could not be made a defendant in reconvention since he was not a plaintiff in the main demand and he overruled the other objection saying:

“ * * * I will overrule the other objection. It may be you have alleged only a joint venture; but in the absence of surprise, I think in the interest of justice it would require I permit you to amend and to attempt to hold the plaintiff on the theory it was his minor son residing with him, if you can, in the interest of saving a multiplicity of suits; otherwise I would have to nonsuit the whole reconventional demand.”

Counsel for plaintiff said:

“We are not surprised, I had anticipated it, and I don’t want any delay.
“I do reassert our position is correct, that ■they can not amend; I believe it is changing the issue and seeking to hold the father responsible on a different basis than what they allege.”

Whereupon counsel for plaintiff in recon-vention said: “I move to make that amendment” and counsel for plaintiff and defendant- in reconvention said: “My objection goes to the amendment, on the basis of changing the issue,” whereupon the district judge said:

“ * * * with the liberal view taken today with respect to pleadings, in order that every man may have his day in court, I think in the absense of surprise, or a situation that would cause a miscarriage of justice, I am authorized to permit the defendant to so amend his pleadings as to include the other cause of action.”

Before considering and discussing the legal questions presented by those objections, we shall first consider the facts in an effort to determine which of the operators was at fault or whether the negligence of both contributed to the result.

The intersection is a very dangerous one. Ploward Avenue at that point is a one-way street, used only by vehicles going towards the Mississippi River and Camp Street is a one-way main thoroughfare for vehicles going in a downtown direction. Located on the sidewalk on each side of Howard Avenue is a “stop” sign, so that as the Ford of plaintiff reached the intersection, it was confronted by two of these stop signs, one to its right, the other to its left. On the corner which intervened between the two vehicles there is a large modern building which extends to 'the property line of both streets, so that each vehicle was completely screened from the view of the operator of the other until the vehicle on Howard Avenue emerged beyond the property line and had partially entered the intersection of Camp Street.

So far as the right-of-way is concerned, it is conceded that this — if the vehicles entered the intersection at about the same time — would have been with the taxicab on Camp Street because it approached from the right side of the other vehicle. The applicable City Ordinance No. 13702 C.C.S., provides in Article V, section IS, subpara-graph (a), that:

“When two vehicles enter an intersection at the same time the driver of the vehicle on the left shall yield to the driver on the right.”

Defendants rely on this provision and maintain that because of it the taxicab was entitled to the right of way, while plaintiff asserts that his son was entitled to the right of way because, so he declares, the Ford had entered first and had preempted the intersection. He relies on the first sentence of that same subparagraph (a), which reads as follows:

“The operator of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection.”

It is obvious then that though the taxicab was entitled to the right of way if the cars entered the intersection at about the same time, it lost this right if the other vehicle entered sufficiently in advance to entitle its operator to claim that it had preempted the intersection.

The accident occurred at about 1:30 A.M. in the morning on Sunday and the driver of the Ford was home from college for the Christmas holidays. There were four young men in the Ford and they had been to various night clubs or places of entertainment, and it is contended that these and other facts indicate that the young men had been drinking. While it is true that these circumstances might indicate that the boys had indulged in such pastime, there is no positive evidence which shows that -they — particularly young Pancoast, the driver, who says that he had not been drinking at all — were to any extent under the influence of liquor.

These four young men all declared that when they reached the stop sign and before their car entered the intersection, it was brought to a complete stop. Young Pancoast, who was at the wheel, and James Lanigan, who was on the front seat with him, both say that when the Ford was brought to a stop, they looked up Camp Street and saw one automobile coming down Camp Street. Lanigan says: “It didn’t seem to be coming pretty fast when I first saw it.” They both say that this other vehicle was about three-quarters of a block.up the street and that they thought they could easily pass. They say that they were almost across Camp Street when the other vehicle, which according to them had been coming at a terrific speed, crashed into the side of their car. The other two young men, who were in the rear, were Paul Timothy and John G. Smith, and while they both say that the Ford stopped at the stop sign, they do not claim to have seen the other automobile as they were talking at the time.

The only other eye-witnesses were James Martin, the driver of the taxicab, Peter Veroni, a passenger seated on the front seat of the taxicab, and Harold Crumpler who was operating a taxicab of the Toye Bros. Yellow Cab Company about seventy-five feet behind the cab which was involved in the accident. These witnesses all state that the taxicab was going down Camp Street at a moderate speed. Crumpler, driving the other cab, says that he did not see the Ford as it emerged into Camp Street, but that he saw the other cab swerve suddenly to the right and then saw that there was a Ford which it was about to strike. Martin and Veroni both say that just before the taxicab reached the intersection the Ford, at high speed, darted out into the intersection and directly into the path of the oncoming taxicab. Martin, the driver says:

“ * * * this car came out without stopping, and he wasn’t going slow, either.”

Veroni, the passenger, says:

“ * * * we were going around, I imagine, close to 20, and as we hit the intersection, entered the intersection, that black Ford shot out in front of the cab. That was without warning.”

Crumpler, referring to the Ford, says:

“ * * * it was so quick, the car must have been moving at a good rate of speed.”

All witnesses sa'y that the taxicab was swerved suddenly to the right, but that it could not avoid hitting the Ford which was crossing in front of it.

The Ford was knocked sideways into a large post on the sidewalk on the lower, river corner of the intersection. Its left side was severely damaged by contact with this post, and it then proceeded on for about ten feet or more towards the river and turned completely -over and came to rest with its wheels in the air, and with its front end pointing back towards Camp Street. After the Ford struck and went by the large post, the taxicab crashed into the same post and badly damaged its bumper, its front grill and motor. This impact was so severe that the taxicab became enmeshed with the post to such an extent that another taxicab which came up had difficulty in pulling it loose.

There is considerable disagreement over the question of whether the taxicab was being driven on the left side of Camp Street as it approached the intersection. All of the witnesses lor plaintiff say that it was on the right side of the center and it is argued from this that since the impact must have taken place near the river side of Camp Street, the Ford of plaintiff had not only entered the intersection first but had almost completely crossed it before the taxicab entered and that therefore, by preemption, the Ford had obtained the right of way. On behalf of defendants, on the other hand, it is asserted that the taxicab was in a lane to the left of the center of Camp Street as the Ford emerged and that it was only after it swerved suddenly to its right that it crossed the center line of the street.

If we were to confine ourselves solely to the oral evidence, no other conclusion could be reached than that the taxicab was on the righthand side of Camp Street at all times, for even the driver of the taxicab, obviously confused, said that when the Ford was struck “nearly all” of it had crossed Camp Street.

However, we reach a different conclusion after carefully weighing all of the testimony and studying all of- the physical facts. If the Ford, moving even slowly towards the river, had partially left the intersection when it was struck by the -taxicab after the latter vehicle had turned sharply to its right, the only possible result would have been for the taxicab to have turned into or to have been pulled into Howard Avenue. It could not have continued in a more or less downtown direction and gone no further to its right than -the post on the downtown river corner of the intersection. The location of the skid marks, the position of the two cars after the accident, and other facts convince us beyond any possible doubt that the taxicab was in the lane slightly to the left of the center line when the Ford emerged and that it was in an effort to avoid striking the Ford that the driver of the taxicab swerved it sharply to the right. This swerve changed its course towards the downtown river corner of the intersection, but not sufficiently to avoid the Ford which was passing in front of it, the result being that it struck the Ford and knocked its rear end towards -the post. The Ford, obviously at a substantial speed, after striking the post, continued on in the general direction in which it had been going, turned over, reversed itself and came to rest with its four wheels in the air.

From these facts it is obvious that it can not be said that -the Ford of plaintiff, as a result of having entered the intersection first, had obtained the right of way by preemption. We repeat here what we said in Sheehan v. Hanson-Flotte Co., La. App., 34 So.2d 657, 660:

“When we use the word ‘preempt’ we do not attribute to it the meaning which counsel for plaintiffs seem to understand that it has. It does not mean that, where one vehicle, by traveling at an excessive rate of speed, is able to enter the intersection when the other which is approaching it is still a few feet away, the first has preempted the intersection and is entitled to cross regardless of what may otherwise have been the right of way. It does not mean that two drivers may race to see which can enter first and that then the one who does enter first may say that he has established his preemption. It -merely means that if two vehicles approach an intersection at proper speeds and with the exercise of ordinary precautions and yet one enters sufficiently in advance of the other to justify the belief that it may continue across without danger, it may do so regardless -of the fact that the other has approached from the right and would have had the right of way but for the advance position of the first.”

There is no doubt that the taxicab skidded a distance estimated by various witnesses at from 21 to 30 feet befo-re it struck the Ford, and -that even after this skidding it was still moving with considerable momentum as it struck the Ford such a severe blow that it not only crushed the right side of the body of the Ford, but also bent the chasis and knocked it sideways into the post. On the other hand, we can reach no other conclusion than that the Ford too entered the intersection at a speed higher than was justified by the surrounding circumstances and by the fact that the other vehicle was entitled to the right of way. We are certain that it entered the intersection at a speed higher than would have been possible had it actually .stopped at the stop sign to its right. Even had it been struck after it had almost completed the crossing of the intersection as counsel for plaintiff insists that it was, we cannot believe that it could have been struck so hard that it was pulled sideways ten or twelve feet into the post and then knocked forward ten or fifteen feet more, unless its own speed in the forward direction was more than it should have been.

Then, too, the evidence of the two young men in the front seat as to the alleged stopping at the stop sign strains our credulity to the breaking point. Young Pancoast says that after stopping he shifted into first gear, looked carefully up Camp Street, saw one car approaching at a distance of about three-quarters of a block, and then slowly crossed the street, and thát he did not see the taxicab again until “he suddenly saw the lights, awful close.” Lanigan goes even further and says that he knew that the corner was very dangerous, was afraid that the stop sign might have been knocked down, and therefore warned Pan-coast before reaching the corner to be very careful and to be sure to stop at that corner. If these precautions were actually taken, there would have been no accident regardless of the speed of the taxicab or the carelessness of its driver.

In Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145, 147, the Court of Appeal, Second Circuit, said:

“A motorist, before attempting to cross a right of way street, is legally required to bring his own car to a complete stop on the less favored street so that he may observe traffic conditions in both directions. It has often been held that for a motorist to merely stop before attempting to enter a right of way street, he performs only one-half the duty that rests upon him. To stop- and then proceed forward without having sufficient opportunity to determine if it is safe to do so, is negligence of a gross character, and renders the person guilty of such responsible for damages resulting therefrom.”

Similarly, in Arline v. Alexander, La. App., 2 So.2d 710, 712, the same Court of Appeal made the following statement:

“ * * * To stop before entering a right-of-way street but discharges half the duty imposed upon a motorist. This action must be followed by careful observance of traffic conditions on the right-of-way' street and no entry thereon made unless conditions clearly warrant it. To fail to see what- may be seen in such circumstances on casual inspection amounts to gross negligence, and loss or injury arising from such failure falls upon the guilty person or persons.”

And in Goff v. Southern Coffee Mills, La.App., 144 So. 513, 514, appears the following :

“On the upper river corner, which was the corner over which, had there been no obstruction to the view, either driver could, had he looked, have seen the other vehicle approaching, there was a large wooden building, which extended to the property line of both streets. This placed upon the drivers, particularly on the one who did not have the right of way, the duty of exercising extraordinary care before emerging into the intersection. Though there is some-conflict in the evidence, we believe that it conclusively appears that Goff did not stop and did not look at a point from which he could have seen the truck approaching. Had he done so, it is inconceivable that he would have driven into the path of the oncoming truck. It may be that the truck was approaching at a speed in excess of that permitted by law, though the evidence on this point is clearly with the defendant, nevertheless, unless the speed was greatly in, excess of the legal limit, Goff, had he looked and had he seen the truck coming, would have realized the danger of emerging from his position of safety.”

As to the duty in such situation, to attempt to determine within reasonable bounds just how fast the car on the other street is approaching, in Smith's Tutorship v. Perrin, La.App., 145 So. 685, 688, we said:

“It is quite obvious to us that the occupants of the Ford automobile erroneously approximated the distance that the defendant’s car was from them at the time the Ford car was driven into the roadway. While the law does not require the driver of an automobile to judge the distance between his machine and another and its speed with absolute accuracy, he is required to do so with reasonable care and caution, such as an ordinarily prudent driver would do under similar circumstances, and commensurate with the danger involved.”

Having reached the conclusion that both drivers were at fault and that the accident would not have occurred had either exercised proper care, it is necessary to consider the legal question which is presented. Does the negligence of young Pan-coast prevent recovery by Pancoast, Sr. for damage sustained by his car ?

It is well settled that the owner of an automobile may recover for damage sustained by it in an accident to which the negligence of the borrower may have contributed. Adam v. English, La.App., 21 So.2d 633; Manley v. Hammons, La.App., 20 So.2d 817; Honeycutt v. Carver, La. App., 25 So.2d 99.

Unless, therefore, there was some legal relationship between Pancoast and his son which would create in the father legal liability for the results of the negligence of the son, then the mere fact that young Pancoast may have been at fault would not prevent his father from recovering from the other tortfeasor, since, as we have said, the mere fact that the son borrowed the car would not be sufficient to make the father responsible for the results of the son’s negligence. If, however, the son was a minor at the time and resided with the father, then his negligence would bar recovery by the father, because of the effect of Article 2318 of our Civil Code.

The petition in reconvention alleges no facts which, if proven, would permit the application of this article, which reads, in part, as follows:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, * *

There is no allegation that young Pan-coast was a minor, nor is there an allegation that he resided with his father. It is obvious that when the petition in recon-vention was prepared, it was founded entirely on the theory that when a father allows a son to operate the family automobile solely for the pleasure of the son, the pleasure of the son is to be considered as a matter in the interest or welfare of the family and that therefore the operation of the automobile on such an occasion by the son is for the joint benefit of the son and the father.

In view of what our Supreme Court has said in Adams v. Golson, 187 La. 363, 174 So. 876, concerning the obligation of a husband to a wife in a somewhat' similar situation, we have doubt as to whether or not, were it necessary to a decision, we would find ourselves able to hold that under the facts alleged the father could be held liable for the torts of the son, on the theory that the operation of the car by the son for his own pleasure could be considered as a joint venture of the son and the father.

Before investigating this interesting question, we deem it advisable to first consider whether the judge a: quo was correct in permitting the instanter amendment under which defendants and the plaintiff in reconvention sought to prove that Pan-coast, the father, should be held responsible for the negligence of his minor son residing with him, and whether, if that amendment was properly admitted, the facts as they finally appear in the record would make the father responsible for that negligence of his son.

For a time our Supreme Court waivered between the view that a petition which does not set forth a cause of action amounts to nothing and can not be amended and the present view that where a petition fails to state a cause of action merely because of insufficiency of allegation, an opportunity to amend should be permitted. The former view was followed in West Orleans Beach Corporation v. Martinez, 180 La. 31, 156 So. 165; Tremont Lumber Co. v. May, Assessor, et al., 143 La. 389, 395, 78 So. 650; State v. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772; and Abadie v. Berges, 41 La.Ann. 281, 6 So. 529. This view was, we think and hope permanently abandoned when the Supreme Court decided Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488, in which the Court discussed at length the conflict in the jurisprudence of the State and held that an amendment should be permitted. See, also, Purpera v. Fidelity & Deposit Co. of Maryland, La.App., 189 So. 639; Dumaine v. Gay, Sullivan & Co., La. App., 171 So. 396.

Counsel for defendants and plaintiff in reconvention rely upon this liberal rule concerning amendments and there can be no doubt that the established rule now is, as set forth in Southport Mill v. Friedrichs, 167 La. 101, 118 So. 818, that where it is possible that, by additional allegations, necessary facts may be set forth and that thereby a cause of action may be stated, an opportunity to allege those facts should be afforded.

There are in the petition in reconvention no allegations which affirmatively show that no cause of action exists. The fault lies merely in the failure of the petition to set forth that the son was a minor at the time and that he resided with the father. There was nothing to show that these allegations could not be made.

However, counsel for plaintiff (defendant in reconvention) contends that this liberal rule has application only to an original petition and not to a petition in reconvention, and asserts that there can be no amendment to such a petition and that where there is a failure to allege necessary facts or where, for other reasons, such a petition in reconvention is vague, no evidence should be admitted in support of it. In this connection we note what we said in Robert v. Blythe, La.App., 145 So. 15, 16, wherein it was contended that no evidence should be permitted in support of a plea in compensation because of insufficiency of allegations :

“A plea in compensation should be set forth with the same certainty as is required by a plaintiff in a direct action. The penalty for a failure to do so is attendant with somewhat different consequences due to the absence of replication in our system of pleadings. The failure of the plaintiff to give necessary details is not fatal, since he may amend following the maintenance of an exception of vagueness, but the failure of a defendant to meet the necessities of pleading results in the deprivation of the right of presenting proof in support of his claim; no amendment being permitted. This is true with respect to the analogous plea in reconvention. Stringfellow v. Nowlin Bros., 157 La. 683, 102 So. 869; Stroud v. Beardslee, 2 Mart., N.S., 84; Perry v. Gerbeau, 5 Mart., N.S., 14; McMasters v. Palmer, 4 La.Ann. 381; Wilcox v. His Creditors, 11 Rob. 346.”

However, we are impressed with what we held in Chagnard v. Schiro, La.App., 156 So. 58, in which the lower court refused to permit the amendment of a petition in re-convention. There the conclusion which we reached was that where the amendment would merely amplify the defense it should be permitted. We suggested or hinted at a possible distinction between an amendment insofar as it amplifies the reconven-tional demand and the amendment which, though in a reconventional demand, merely amplifies the original defense. It may be that there is such a distinction and that where it is sought to amend allegations of a reconventional demand insofar as that demand sets up a claim against plaintiff in the main demand, such an amendment ■might not be permitted, but that insofar as it merely sets forth other facts on which the main demand should be rejected, it is proper to admit it.

If there is, in some situations, reason for recognizing such a distinction, we find the question of no interest here for, having already concluded that the reconventional demand, for other reasons, must be rejected, we are faced only with the more simple problem of determining whether an amendment which amplifies the defense originally set up is objectionable. And we conclude that it is not.

In Southport Mill v. Friederichs, supra, in which was involved the question of whether a supplemental and amended answer should be permitted, the Court said [167 La. 101, 118 So. 820]:

"Our conclusion is, also, that the court below should have permitted the supplemental answer to be filed. In this particular pleading, defendant has done nothing more than amplify his denial of the allegations of plaintiff's petition by setting forth the reasons why plaintiff should not recover. He does not change the original relief asked for, which is the rejection of plaintiff’s demands.”

And in the case of Chagnard v. Schiro, supra, we permitted an amendment which not only amplified the original defense, but also set up a claim in reconvention.

In the case at bar the issue on the main demand has in no way been changed. The main defense is that the plaintiff cannot recover because his right is destroyed by the negligence of his son for which he is responsible. That is also the issue set up by the amendment which was properly admitted.

Having reached this conclusion, it becomes necessary to determine whether the record shows the facts which must appear if, because of Article 2318, the faults of the son are to be visited upon the father.

Counsel for Pancoast concedes that the record shows that at the time young Pan-coast was only twenty years of age, but he declares that the “record * * * is entirely silent on the question as to where Pancoast, Jr. resided.” We do not agree that the record is silent on this question. It is true that there is no express statement by the young man nor by his father nor by anyone else to the effect that the boy resided at home with his father. But it is impossible to complete a reading of the record without reaching the conclusion that it gives a clear picture of a son living at home with his father in a normal family relationship. The son states that when he decided to go to other places of amusement than those at which he had been spending the earlier part of the evening, he went to his home. He says that his companions “took me back to my house,” and he adds that “we stayed around my house for a while,” and he then says that he decided to take his father’s car, so he "went inside,” got the keys from his father, and told him “I would use the automobile.”

In this connection it is interesting to note from the record that apparently when Pan-coást, Jr., was placed upon the stand, according to the stenographer, he “gave his address as 4323 Toulouse Street,” and that the father, Paul Pancoast, Sr., when placed on the stand, also gave his address as 4323 Toulouse Street.

These statements and other facts show clearly that the son lived at home with his father, and even if they merely raised such an inference, we would reach the same conclusion we arrived at in Epps v. Standard Supply & Hardware Co., La.App., 4 So.2d 790, 792, in which we said:

“There is some indication in the record that young Epps resided with his father and nothing to the contrary. We will, therefore, presume that young Epps lived a normal life under the roof of his father.”

We must, therefore, hold that since young Pancoast was • guilty of negligence which contributed to the accident, this negligence prevents recovery by the father, plaintiff in the main demand.

In Di Leo v. DuMontier, La.App., 195 So. 74, 76, we said:

“Since it is shown that young Di Leo was a minor and was residing with his father, it follows that his said father is responsible for any loss resulting from his negligent acts. Revised Civil Code, Art. 2318. Therefore, being responsible for the results of these negligent acts of his son, he is prevented from recovering for the damage sustained by his car.”

See, also, Epps v. Standard Supply & Hardware Co., supra; Adams v. English, supra.

We attach little importance to the fact that the driver of the taxicab, whose correct name was Eugene Sola, was using the name of James Martin. It is -true that he had had difficulties with the authorities of the armed forces and that this, to a considerable extent, clouds his good name, but it does not make it necessary that we disregard his testimony, which we think is corroborated by the physical facts.

We conclude that both the main demand and the reconventional demand should have been dismissed. Accordingly, the judgment appealed from, insofar as it runs in favor of plaintiff, is annuled, avoided and reversed. In all other respects it is affirmed at the cost of plaintiff-appellee.

Judgment reversed in part — affirmed in part.

REGAN, J., takes no part.


author: ELLIS, Judge.

text:
    GULF STATES FINANCE CORPORATION v. HARRIS.
    No. 3045.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Stewart & Taylor, of Baton Rouge, for appellant.
    Huckabay Seale & Kelton, of Baton Rouge, for appellee.
   ELLIS, Judge.

The plaintiff has filed this suit wherein it alleges that the defendant is indebted unto it in the sum of $864.50, together with interest at the sum of 8% per annum from December 30th, 1947, until paid, with 25% upon the amount of principal and interest as attorneys fees, as they are the holders and owners in due course for a valuable consideration before maturity of one promissory note dated October 30th, 1947 and signed by Shedrick Harris, defendant herein, which note is made payable to the order of “bearer” in the full sum of $926.25, payable in fifteen monthly installments of $61.75. Plaintiff further alleges that this note is secured by chattel mortgage, lien and privilege upon one 1938 Ford Fordor Sedan, all as will more fully appear by reference to a duplicate original of said act of chattel mortgage which is annexed to and made part of plaintiff’s petition.

The defendant filed an exception of vagueness based upon the following:

“Allegation 5 of plaintiff’s petition sets forth that a chattel mortgage was given to plaintiff by defendant, which chattel mortgage was made a part of said allegation, and a copy of same attached to plaintiff’s petition; said chattel mortgage in Item 6 thereof sets forth $216.25 as the amount charged for finance charges, including insurance, if any. Plaintiff should be ordered to amend its petition to show the exact amount of finance charges and the exact amount of insurance charged defendant.”

The Judge of the Lower Court on March 2nd, 1948, sustained the exception of vagueness and the plaintiff was ordered to amend its petition as prayed for and was given a reasonable time in which to comply with the ruling of the Court. Plaintiff, instead, filed application for a new trial and rehearing which was overruled on May 3, 1948, and, on May 10th, 1948, the plaintiff having failed to comply with the judgment of the District Court, judgment was signed dismissing plaintiff’s suit as of non-suit.

From this ruling and judgment the plaintiff has appealed.

Plaintiff contends that it “is an innocent holder of a note in due course and before maturity and knows and can know nothing of the defenses that the defendant may ultimately make, to require plaintiff to set forth the details of this transaction to which it is not a party and to which the defendant is a party is contrary to the conception of pleadings of our State.”

An inspection of the chattel mortgage annexed to the petition of plaintiff shows that it was drawn up on forms of the plaintiff, and Item Six, as written therein, could or could not include insurance. Further, this chattel mortgage stipulates:

"The mortgagor hereby agrees and binds himself to keep the personal property above described constantly insured against risk of loss by fire, theft and collision, with insurance companies acceptable to the mortgagee to an amount not less than the sum due on the note herein described until the full and final payment of the said promissory note, and the satisfaction of all the obligations herein undertaken, the policies of insurance to contain a clause that in the event of loss, if any, payment shall be made to the holder or 'holders of the said promissory note as its, or their, interest may appear, and to transfer and deliver unto the said mortgagee the policy or policies of such insurance, the mortgagor consenting and agreeing that the said holder or holders shall have the right to transfer such policy or policies to any future holder or holders of the said note, and that in case of failure of the said mortgagor to effect such insurance, the said note in its entirety shall at once become due and exigible. The holder or holders of the said note shall at their option, however, in case of the failure of the said mortgagor to effect such insurance, have the right to have the property herein mortgaged insured to an amount not less than the sum due on the note herein described, and the reimbursement of all sums paid for that purpose at a premium not to exceed Ten ($10.00) Dollars per hundred shall be secured by the mortgage herein granted.”

Under our law, “the point at which •the allegations of a petition become too vague and indefinite to admit of proof, if there is any such point, must, in the nature of things, be variable, and cannot be established by any rule which can be applied in all cases alike.” In re Sprowl’s Will, 109 La. 352, 33 So. 365, 367.

Also: “Vague and general allegations cannot support a petition. The cause of action, the object of demand, and the nature of the title must be stated with such certainty to apprise defendant of every circumstance necessary to put him on a just defense and to bar a subsequent investigation of matters once decided.” Duncan’s Syndics v. Bechtel, 6 Mart. O.S. 510; Ralston v. Barclay, 6 Mart O.S. 649, 12 Am. Dec. 483; Ory v. Winter, 4 Mart., N.S. 277; Florance v. Nixon, 3 La. 289; Hatch v. City Bank, 1 Rob. 470; Succession of Kendrick, 7 Rob. 138; Barrett v. Zacharie, 2 La.Ann. 655; Blackly v. Matlock, 3 La. Ann. 366; Gremillon v. Bonaventure, 4 La. Ann. 60; Seghers v. Lemaitre, 5 La.Ann. 263; Gantt v. Gantt, 6 La.Ann. 677; Perkins v. Potts, 8 La.Ann. 14; Parish v. Municipality No. 2, 8 La.Ann. 145.

Plaintiff does not state that it does not know exactly what charges are covered by the $216.25 but that it is not required to divulge or set forth such information. However, plaintiff is suing for this amount and the chattel mortgage and note are annexed to and made part of plaintiff’s pleadings. In view of the fact that this mortgage which is a part of plaintiff’s pleadings was drawn on plaintiff’s form, and in view of the stipulation with regard to insurance in the act of mortgage, and the fact that this chattel mortgage contains Item Six which is, on its face, vague and indefinite in that the amount of $216.25 could or might be part insurance and part finance charge or all finance charge, which would possibly make quite a difference in defendant’s position, and in view of the fact that we do not believe that defendant, who is a Negro, is, under the facts as shown by the pleadings and documents annexed thereto by plaintiff, in a better position than plaintiff to know whether the $216.25 is a finance charge or also includes a charge for insurance, we are of the opinion that the judgment of the District Court is correct and it is accordingly affirmed at the cost of the plaintiff.


author: PER CURIAM,

text:
    HOWARD v. GREAT AMERICAN INDEMNITY CO. et al.
    No. 3025.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    For former opinion see 36 So.2d 881.
    Leslie A. Fitch and Durrett & Hardin, all of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller and Roland C. Kizer, City Atty., all of Baton Rouge, for appellees.
   On Application for Rehearing.

PER CURIAM,

Defendants, the City of Baton Rouge, Baton Rouge Water Works Company and the latter defendant’s insurer, apply for a rehearing in this case.

In its application, the defendant City of Baton Rouge contends that we erred in not finding plaintiff guilty of contributory negligence and in holding plaintiff free of contributory negligence. After a thorough reexamination of the record, we are of the firm opinion that our holding is correct. Its application for rehearing is denied.

In its application, the defendants, the Water Works Company and its insurer contend that we erred (1) in holding the Baton Rouge Water Works Company guilty of negligence, (2) in holding that the plaintiff was not guilty of contributory negligence, (3) in awarding an excessive amount in damages, and (4) in not recognizing the liability of the defendants inter se.

We find no merits in the first three contentions of defendants. As to the fourth contention, the defendants set forth that the City of Baton Rouge may contend that it is liable only for a third of the judgment wherein the defendant insurer is liable only for the liability of the Water Works Company, thus making the City of Baton Rouge liable for one-half of the judgment. In order to clarify our former decree, we amend our decree so as to set the liability amongst the defendants themselves, without in any manner relieving the said defendants from liability in solido to the plaintiff, in the proportion of one-half to each, that is, the City of Baton Rouge and Baton Rouge Water Works Company. As thus amended our decree stands final and the application of these defendants is denied.


author: TALIAFERRO, Judge. PER CURIAM.

text:
    SALTER v. ZODER.
    No. 7256.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 27, 1948.
    Rehearing Denied Nov. 24, 1948.
    Thomas M. Comegys, Jr., of Shreveport, for appellant.
    Morgan, Baker & Skeels, of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff’s daughter, Frieda, age six years, while playing on the concrete driveway of property in the City of Shreveport, Louisiana, owned by the defendant, in some manner lost balance and fell against a piece of corrugated metal sheeting on top of a stack of lumber on said driveway, and her left cheek was incised for some two inches.

Plaintiff sued to recover damages for the use and benefit of his daughter and in his own name to recover the amount of hospital and physician’s bills paid or for which he is obligated to pay in treating the child.

The suit is predicated upon the theory that the relationship of landlord and tenant existed between plaintiff and defendant.

On October 1, 1946, the defendant purchased the residence property bounded on the north by College Street, on the east by Line Avenue and on the south by an alley that opens into Line Avenue. The principal residence fronted easterly on the avenue. There is on the lots a small garage apartment west of said main residence, that faces southerly on the alley. The stairway to the upper part of the apartment leads from near the alley’s north side.

The concrete driveway mentioned, extends from the south side of College Street to the north (rear) side of the garage apartment, the lower part of which was designed to accommodate two automobiles. West of the driveway and to some extent west the garage apartment, the area was vacant. of

Some two years prior to defendant’s acquisition of this property, L. E. Plitt, excepting the vacant lot, leased all of it, from the then owner and he and family occupied the main residence. The lease was by the month and oral. In April, 1946, he subleased the upper part or the living quarters of the apartment to plaintiff. He and his wife and two small children were living therein when the accident occurred.

Promptly after acquiring the property, defendant.had the Office of Price Administration give to Plitt and plaintiff the customary six months notice to vacate the property and deliver possession thereof to him. The accident occurred prior to the expiration of said six months period.

Defendant contemplated making substantial repairs to and enlargement of said buildings and within thirty days after purchasing the property he began to acquire lumber for that purpose. A portion of the lumber, when delivered to the site, was, by his direction, stacked partially on the driveway, some eighteen feet north of the garage doors. The stack was about three feet high. As it would be five months before he could use the lumber, in order to protect it from damage from winter weather, he covered the stack with corrugated metal sheeting that extended over on all sides for several inches. It was against the metal on this lumber that the child fell.

Several different charges of negligence are leveled against the defendant which allegedly commit him to liability for the results of the accident. He alleged:

“That said defendant was negligent by reason of his failure to maintain the premises owned by him and occupied under sublease by petitioner, particularly said driveway, in a safe and unobstructed condition.”

It is also alleged that he was further negligent in stacking the lumber on the driveway because he knew that’ plaintiff’s small children, incapable of realizing the dangers thereof, daily played upon and along the said driveway; and in covering the lumber with sharp edged metal sheets that extended aver all sides, thereby creating a condition highly dangerous to children, especially to petitioner’s; in allowing several pieces of the timber to protrude beneath said covering over the driveway; that he further contributed to and aggravated the danger and peril to which said children were subjected by admonishing them and others to refrain from playing upon the lawn on the west side of the driveway which had newly been planted in grass, thereby, in effect, forcing said children to play upon the dangerous driveway if they played outside the building.

Defendant denied liability to plaintiff on account of the accident and specially denied that plaintiff was a tenant or sub-tenant of his at the time it occurred. Further answering, defendant alleged that plaintiff and the members of his family had.no right to use the driveway from their apartment •to College Street, but, on the contrary, the alley that ran in front of their apartment to Line Avenue was the sole and only entrance to and exit from the apartment they were entitled to use. He further alleges that the child when injured was a trespasser on the premises.

Plaintiff’s demand was rejected and his suit dismissed at his cost. He appealed to this court.

A large part of the testimony has to do with' whether plaintiff’s children had the right to use, in any manner, the driveway. The record is quite clear as to what property Plitt leased to plaintiff. The lease embraced only the upper story or living quarters of the garage apartment, but as an incident to the contract Plitt did assent to the use of the driveway by plaintiff and the members of his family when it suited their convenience and/or purpose. Defendant’s mail box was erected on College Street at the end of the driveway. Plitt assisted in the erection.

Plitt had no automobile of his own. Pic used the lower section of the apartment for other purposes. He did tell plaintiff that he could park his car on the driveway when his (Plitt’s) brother-in-law was not doing so, but we are of the opinion that plaintiff did not often avail himself of this privilege: We are certain he did not do so to any extent after the lumber was stacked thereon.

The record unquestionably discloses that after plaintiff moved into the garage apartment his children and others freely .played upon the vacant lot and upon the driveway without any objection from anyone, but after the vacant lot was planted in grass, they ceased to do so at defendant’s request.

In view of the foregoing established facts, it is not true, as contended by defendant, that the child, when hurt, was a trespasser upon the driveway. In this court, alternatively, defendant argues that the status of the child was that of licensee.

It is certain that after defendant acquired the property he did not do anything, expressly or tacitly, to assume the status of landlord to Plitt or plaintiff. The record is barren of any testimony that could be construed to bring about that relationship.

As rent control by the Government was still in effect, plaintiff could not dispossess Plitt and the plaintiff before the expiration of six months. However, because of this enforced situation, it does not follow by implication that these men became his tenants or he their landlord. The record does not show to whom plaintiff paid rent. He did not pay it to defendant; neither does the record show to whom Plitt paid rent to the time he delivered possession of the main residence to defendant. One may occupy property and pay for such occupancy without being a tenant of anyone.

The notices to vacate were not predicated upon the existence of any contractual relation between defendant and Plitt or plaintiff. This was necessary in order to eject them from the property should they not remove therefrom voluntarily.

The relation of landlord and tenant can arise only from contract, either expressed or implied. We conclude that in legal contemplation plaintiff was not defendant’s tenant or sub-tenant at any time. This conclusion renders inapplicable those articles of the Civil Code and decisions of courts, cited by appellant which relate to cases between landlord andi tenant, with special reference to those pertinent to the former’s duty to maintain the leased premises in safe condition.

Our appreciation of the facts of this case has led us to the conclusion that so far as concerns the question of the use of the driveway plaintiff and the members of his family were licensees by permission. This status arose when plaintiff leased the garage apartment from Plitt and it did not undergo change prior to the accident.

Restatement Of The Law, verbo Torts, § 330, defines a licensee as:

“A person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.”

The general rule is that a licensee, whether by permission or otherwise, takes the premises as he finds them. The duty of the owner or possessor of premises to a licensee is lucidly discussed in Mills v. Heidingsfield et al., La.App., 192 So. 786, 789, by Judge Hamiter, then a member of this court. The following excerpts are taken from the opinion in that case, to-wit:

“A person is a licensee, according to 45 Corpus Juris, verbo, ‘Negligence,’ § 194, ‘where his entry or use of the premises is permitted by the owner or person in control thereof, or by operation of law, so'that he, is not a trespasser, but is without any express or implied invitation. He therefore occupies a position somewhere between that of a trespasser and that of an invitee. A license is distinguished from an invitation in that the licensee is on the premises by sufferance only, and not by virtue of any business or contractual relation with, or any enticement, allurment, or inducement to enter held out to him by, the owner or occupant, but merely in his own interest and for his own purposes, benefit, convenience, or pleasure.’ This statement of the rule appears to have been substantially approved and followed by the courts of this state. Bell v. Houston & S. R. Co. et al., 132 La. 88, 60 So. 1029, 43 L.R.A.,N.S., 740; Vargas v. Blue Seal Bottling Works, Ltd., 12 La.App. 652, 126 So. 707; Myers v. Gulf Public Service Corp., 15 La.App. 589, 132 So. 416; Platt et al. v. Bender et al., La.App., 178 So. 678.”
******
“Under the general law of negligence, a licensee takes the premises as he finds them. The owner thereof owes to him only the duty of refraining from injuring him wil-fully, wantonly, or through active negligence.”

In the present case there is nothing to indicate, nor even is it suggested, that the child was injured by any wilful or wanton act of the defendant, and it is equally true that the accident did not occur from his active negligence.

For the reasons herein assigned, the judgment from which appealed is affirmed with costs.

On Application for Rehearing.

PER CURIAM.

Appellant takes exception to the conclusion reached and specifically stated by us in the opinion to the effect that his case is primarily predicated upon the theory that the relationship of landlord and tenant existed between him and the defendant at the time of the occurrence of the accident alleged upon. Having reached the conclusion that this relationship did not exist, particularly as to the driveway whereon the accident occurred, it then became necessary to determine the status of the injured child with respect to the defendant and Plitt, lessee of defendant’s vendor in title. And, having determined that such status was that of licensee, in logical order, there remained for us to say whether the defendant’s act in placing the lumber with metal sheeting thereon, upon the driveway and allowing it to stay there for the tim'e stated, was, in legal contemplation, “wilful or wa'nton or active negligence,” indispensable prerequisites to the injured licensee’s right to recover damages caused her while on the premises. This conclusion necessarily confined our study to the law applicable to a licensee.

It is true that, without doing so in the alternative, plaintiff’s allegations indicate that he seeks recovery under articles of the Civil Code not found among those that undertake to define the reciprocal duties inter se of landlord and tenant. But after having decided the status of the child to have been that of licensee it could as easily have been said that the quoted articles of the Civil Code and decisions of courts, wherein the same have been discussed and applied or rejected, were not pertinent to a discussion of the law applicable to licensees. We have not found, after a reconsideration of the case, that the application for rehearing is well founded, and, therefore, it is denied.


text:
    CIGALI v KAPLAN.
    No. 18985.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1948.
    Rehearing Denied Dec. 13, 1948.

      See also 34 So.2d 924.
    Felix W. Gaudin and James J. Grevem-berg, both of New Orleans, for plaintiff and appellee.
    James David McNeill, of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, by rule, submitted to the court below the question of his right to a judgment on the petition and answer (which proceeding is authorized by Act 157 of 1912, as amended) and recovered judgment as prayed for in the petition, from which defendant has appealed.

The suit is predicated on a'promissory note for $300.00; defendant admits its execution, but pleads that his indebtedness thereon is extinguished by compensation. The sole question presented is whether the plea is set forth with such particularity and precision as would permit the introduction of evidence to prove it.

It is contended on behalf of defendant, in brief, that compensation is pleaded only in the alternative “in the event the trial court :is not satisfied as to proof of prior payment,” and that defendant is entitled to be heard on the merits of the case. However, our interpretation of the allegations of the answer is that the only defense advanced is the unequivocal plea of compensation, defendant claiming that the plaintiff, in bringing the suit, acted on behalf of a partnership known as Cigali & Calongne, of which he was a member, and that said concern and its successor, another partnership known as Allen & Calongne, owe defendant an unstated sum on a contract, which is in excess of the amount of and compensates the note. Not only is the amount which defendant claims to be due him not stated, but there are no allegations setting forth the date of the contract, whether it is oral or written, or its nature and particulars.

Plaintiff’s counsel argues that the plea of compensation is “unstated” and is, therefore, ineffective.

Our Code of Practice, in treating of the defense of compensation and set-off, provides :

Art. 366 — “Compensation, or set-off, is a mode of extinguishing debts, which takes place when it happens that both plaintiff and defendant are indebted to each other; each retaining, in payment of the sum due to him, the amount which' he owes to the other.”

Art. 367 — “The defendant may plead compensation, or set-off at every stage of the proceedings, provided it be pleaded specially.”

A plea of compensation, set-off, or a reconventional demand should • be set forth with the same certainty as to amounts, dates, items, etc., and the manner in which the right thereto was acquired, as though the party relying on it were plaintiff in the suit, in order that the plaintiff may properly defend himself against such claim. The failure to meet this exaction is fatal to the plea, and the penalty is deprivation of the right of submitting proof of the claim. Busby v. Childress, La.App., 187 So. 104; Robert v. Blythe Company, La.App., 145 So. 15; Bloomenstiel v. McKeithen et al., 19 La.App. 513, 139 So. 519.

From a reading of the answer in this case, with the above Code of Practice articles and the cited authorities in view, it is apparent that the defense is not susceptible of proof, and there is no doubt that the entry of the judgment in plaintiff’s favor on his rule was proper.

The judgment appealed from is affirmed.

Affirmed.