author: HALL, Judge.

text:
    Robert B. REED et al., Plaintiffs-Appellees, v. CLASSIFIED PARKING SYSTEM et al., Defendants-Appellants.
    No. 12779.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.

      Wiener, Weiss & Wiener and Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for defendants-appellants-John B. Hutchinson and Bessie Lee Hutchinson.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for defendant-appellant-Classified Parking System.
    James A. Van Hook and Billy R. Pes-nell, Shreveport, for plaintiffs-appellees-Robert B. Reed, Rutledge H. Deas, Jr. and Shreve Park, Inc.
    Before HALL, GLADNEY and HEARD, JJ.
   HALL, Judge.

In a previous suit between the same plaintiffs (sublessees) and the same defendants (lessor and sublessor) judgment was rendered by the Court of Appeal canceling and declaring of no further force and effect a lease and a sublease because of a breach of the lessors’ obligation to replace equipment and to repair structural defects in the leased premises. Reed v. Classified Parking System, 232 So.2d 103 (La.App.2d Cir. 1970), writ refused. In the present suit the sublessee seeks damages against the sublessor and lessor for breach of the lease and sublease contracts in an amount equal to the difference between the rent actually paid under the terms of the sublease by sublessee and the fair rental value of the premises from March 2, 1965, the date suit was filed to cancel the lease, through May 8, 1970, the date the premises were vacated after judgment canceling the lease. After trial on the merits the district court rendered judgment in favor of plaintiffs in the amount of $116,926.15, less credits of $1,612.56, together with five percent interest thereon from the date of each rental payment until paid. All defendants appealed. For the reasons set forth in this opinion, we reverse the judgment of the district court and render judgment rejecting plaintiffs’ demands.

Background

Defendants, Mr. and Mrs. John Hutchinson, owned and operated The Auto Hotel, a multistory parking garage on Edwards Street in Shreveport, for many years. On May 15, 1956, the Hutchinsons leased the premises to defendant Classified Parking System, a corporation, for the purpose of operating an automobile parking and storage garage. On December 1, 1958, Classified subleased the premises to the plaintiffs, Robert B. Reed and Rutledge H. Deas, Jr., for the same purpose. Plaintiff, Shreve Park, Inc., is a corporation formed by Reed and Deas to operate the garage.

As a practical matter, the sublessor Classified is and has been merely a conduit in the course of the litigation between the parties, the real controversy being between plaintiffs and the Hutchinsons. To facilitate discussion of the issues in this opinion, plaintiffs are sometimes referred to as lessee, the Hutchinsons as lessor, and both the lease and sublease as the lease or lease contract.

On March 2, 1965, plaintiffs filed suit seeking cancellation of the lease because of failure of the lessor to comply with the lessor’s obligations under the lease contract in regard to maintenance of the premises. The suit for cancellation was defended on the basis that the responsibility for the items complained of rested on the plaintiffs under the lease contract. The district court rejected plaintiffs’ demands to cancel. The Court of Appeal reversed. The court found that the manlift, an essential item of equipment in operating a first class parking garage, was completely worn out and under the terms of the lease contract the lessor was required to replace worn out equipment. The court further found that it was the lessor’s responsibility to replace the leaking roof which amounted to a structural defect and which was resulting in damage to the premises. The court held that plaintiffs proved the lessor had failed or refused to comply with the lessor’s obligations under the lease and that the lessee had been seriously disturbed in his possession or that the premises- no longer served the use for which they were leased. Judgment was rendered canceling the sublease and lease and decreeing same to be of no further force and effect. The judgment became final in May, 1970, and on May 8, 1970, the premises were vacated by plaintiffs. From the time the suit for cancellation was filed in March, 1965, until the premises were vacated in May, 1970, plaintiffs remained in possession of the premises, continuing to operate a parking garage, and paid the rental specified in the lease contract, which rental totalled approximately $155,000.00 over that period of time.

On December 14, 1971, plaintiffs brought the instant suit against the Hutchinsons and Classified, seeking a money judgment for the difference between the rental actually paid by plaintiffs from March, 1965, through May 8, 1970, and the fair rental value of the premises during that period. Plaintiffs alleged the fair rental value for the period to be approximately $40,000.00 and the difference to which they are entitled to be approximately $115,000.00.

Defendants filed a dilatory exception of vagueness, peremptory exception of no cause of action, and peremptory exception of res judicata, all of which were overruled. Defendant Classified filed a third party demand against the Hutchinsons, seeking judgment over against third party defendants for any amount recovered by plaintiffs. Trial was had on the merits.

At the trial on the merits plaintiffs’ evidence was directed primarily toward proof, by expert witnesses, of the fair rental value of the premises, in their deteriorated condition, during the period the previous suit for cancellation was pending. Plaintiffs did not seek to prove and do not seek to recover damages such as loss of profits, additional expense caused by the defects in the premises, inconvenience, or the like. The entire thrust of plaintiffs’ case is 'that they are entitled to damages for defendant’s breach of the lease contract and that the proper measure of damages is the difference between the rent actually paid and the fair rental value during the pendency of the previous suit, this being the difference between what plaintiffs paid for and what they actually received.

The district court, in written opinions rendered in connection with overruling the exceptions and on the merits, held for the plaintiffs, holding that the lessor was entitled to only the fair rental value of the premises after March, 1965, which the district court considered to be the effective date of cancellation of the lease. The district court held plaintiffs are entitled to recover the “over-payment” made by them during that period of time.

Contentions of the Parties

The contentions made by defendants-appellants on appeal may be summarized as follows:

(1) Plaintiffs are barred from proceeding with this suit for damages by principles of res judicata in that the present suit involves the same parties, the same cause of action, and the same demand as the prior litigation..

(2) Plaintiffs are barred from proceeding with this suit for damages after previously suing for cancellation of the lease as it amounts to dividing a cause of action in violation of LSA-C.C.P. Art. 425.

(3) A lessee who remains in possession of leased premises cannot recover for rental paid to the lessor during the period of the lessee’s possession even though the lessor breached the lease contract.

(4) The failure of the lessor to repair the roof and replace the manlift did not cause the damages alleged by plaintiffs.

(5) Plaintiffs failed to mitigate their damages, if any.

(6) Interest on an unliquidated claim based on quantum meruit can only be awarded from date of final judgment.

Plaintiffs-appellees’ arguments on appeal may be summarized as follows :

(1) Plaintiffs are not barred by res ju-dicata because the demand (damages) in the present suit is not the same as the demand (cancellation) in the previous suit.

(2) Plaintiffs are not barred by LSA-C.C.P. Art. 425 in that their cause of action for damages asserted in the present suit is separate and distinct from their cause of action for cancellation asserted in the previous suit.

(3) The failure of defendants to comply with their obligations under the lease is a failure of the cause or consideration for plaintiffs’ obligation and agreement to pay the stipulated rent. Plaintiffs did not receive what they bargained for and as a result of the defendants’ breach, plaintiffs have been damaged and have sustained a loss, and defendants have been unjustly enriched, in an amount equal to the difference between the amount of rent stipulated in the lease and paid by plaintiffs and the fair rental value of the premises during pendency of the suit for cancellation.

(4) Legal interest is due on a debt from the date the debt becomes due, which in this case is the date each payment of rental in excess of fair rental value was paid. This is not a suit based on quantum mer-uit.

Res Judicata

LSA-C.C. Art. 2286 provides :

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

The object of the first suit and the thing demanded was cancellation or dissolution of the contract. The object of the second suit and the thing demanded is damages. Thus, the object of the judgment and the thing demanded is not the same in each suit. Essential elements of res judicata as defined in LSA-C.C. Art. 2286 are absent.

Closely in point is Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954). In that case plaintiff first filed suit for specific performance of a contract to sell real estate and judgment was rendered ordering specific performance. Plaintiff then filed suit against the same defendant to recover damages sustained by reason of defendant’s breach of contract. Defendant’s plea of res judicata was sustained by the district court and the court of appeal. The Supreme Court reversed, holding that res ju-dicata does not apply when the demand is not the same as previously made, even though it might have been asserted in the original action.

Successive suits for specific performance of a contract and damages for breach of contract are closely analogous to successive suits for dissolution of a contract and damages for breach of contract, all being founded on LSA-C.C. Art. 1926.

The district court properly overruled defendants’ peremptory exception of res judi-cata.

Splitting Cause of Action

LSA-C.C.P. Art. 425 provides:

An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.

This article of the Code of Civil Procedure is a codification of the previously existing rule against splitting causes of action — a rule designed to minimize litigation and to prevent harassment of defendants by a multiplicity of suits based upon the same claim. Under the rule, a plaintiff was considered as having waived all portions of the claim not asserted in the prior suit. The comment under LSA-C.C.P. Art. 425 notes that no change in the procedural law of Louisiana is intended.

Defendants’ contention that plaintiffs lost their right to claim damages by not cu-mulating such an action with the action for dissolution of the contract is answered adversely in Quarles v. Lewis, 98 So.2d 301 (La.App. 1st Cir. 1957). After the Supreme Court decision overruling the plea of res judicata and remanding the case for further proceedings, the Quarles case came back to the Court of Appeal which considered the issue of whether plaintiff had waived his right to claim damages by not asserting it in the original suit. The court held that plaintiff did not waive, by his earlier suit for specific performance, his entirely separate claim for damages. The first claim was terminated after the delayed performance of the contract and only then did the second claim for damages fully accrue. To compel to do and to compel to pay for not doing timely, rather than a single claim, are correlative and complementary claims.

In the instant case, as correctly argued by counsel for plaintiffs, their claim for damages, if any, did not fully accrue until the judgment canceling and dissolving the lease became final and the leased premises were abandoned. Whether the right to claim dissolution and the right to claim damages technically and strictly amount to separate causes of action, it is manifest that the claim for damages did not and could not fully accrue until the judicial dissolution of the lease contract. Plaintiffs’ failure to assert the yet unaccrued claim for damages in the original suit for dissolution of the contract does not bar their claim for damages asserted in the present suit. The two suits do not amount to the dividing of a single obligation and bringing separate actions on different portions thereof. LSA-C.C.P. Art. 425 is not applicable.

On the Merits

Pertinent to a decision on the merits of plaintiffs’ demand for damages are the following Civil Code Articles:

Art. 2693. The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.
Art. 2694. If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.
Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Art. 2668. The contract of lease or letting out (besides the rules in which it is subject in common with other agreements, and which are explained under the title: Of Conventional Obligations) is governed by certain particular rules, which are the subject of the present title.

Art. 2729. The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the 'judge can not order any delay of the dissolution.

Art. 1926. On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.

Art. 2046. A resolutory 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.

Art. 1934. Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions, and modifications:

1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.

In the prior suit for cancellation, the court held the lessor breached its obligations under LSA-C.C. Arts. 2692 and 2695 and its obligations under the lease, relating to maintenance of and vices and defects of the leased premises. It should be noted that Article 2695 provides for the recovery of damages, stipulating that “if any loss should result to the lessee' from the vices and defects, the lessor shall be bound to indemnify him for the same.” The court ordered cancellation or dissolution of the lease contract pursuant to the authority of LSA-C.C. Art. 2729 which provides that the neglect of the lessor or lessee to fulfill his engagements may give cause for a dissolution of the lease, in the manner expressed concerning contracts in general.

LSA-C.C. Art. 2668 provides that the contract of lease is governed by the particular rules of Title IX of the Civil Code, “besides the rules in which it is subject in common with other agreements, and which are explained under the title: Of Conventional Obligations”. This Article, together with Article 2729, makes it clear that in addition to the particular rules governing leases, such contracts are subject .to the general rules relating to conventional obligations, particularly in regard to dissolution for breach thereof.

LSA-C.C. Art. 1926 provides that upon breach of any obligation to do or not to do, the obligee is entitled to specific perform-anee, or dissolution, “and in all these cases damages may be given where they have accrued.” LSA-C.C. Art. 2046 provides that a resolutory condition is implied in all cummulative contracts in the event either party does not comply with his engagements. In this case, the contract is not dissolved of right. The complaining party may sue for dissolution of the contract “with damages”, or for specific performance. LSA-C.C. Art. 2047 requires that when the resolutory condition is an event not depending on the will of the parties, the contract is dissolved of right, but in other cases “it must be sued for.”

The measure of damages for breach of contract is governed by LSA-C.C. Art. 1934. This article provides that the damages due the creditor for breach of contract “are the amount of the loss he has sustained, and the profit of which he has been deprived.” Where there is no fraud or bad faith, and none is alleged or proved in the instant case, the debtor is “liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract”.

The foregoing review of pertinent articles of the Civil , Code leads to three conclusions applicable to the issues in this case:

(1) The breach of the contract by the lessor did not dissolve the contract of right. Dissolution had to be sued for and judicially declared. Consequently, the lease was dissolved as of the date the judgment decreeing cancellation became final, that is, in May, 1970. It was not dissolved as of the date of breach or as of the date of filing suit for cancellation. The lease remained in effect, with the lessee entitled to occupancy and obligated to pay rent, until its judicial dissolution.

(2) Because of the lessor’s breach of the contract, the lessee is entitled not only to dissolution of the lease, but to such damages as may have accrued as a result or consequence of the breach.

(3) The measure of damages to which the lessee is entitled by reason of the lessor’s breach of the lease contract is the amount of loss the lessee has sustained, and the profit of which he has been deprived, within the contemplation of the parties at the time of the' contract.

A wide range of damages has been awarded by the courts in cases involving similar breaches by a lessor. See, for example, O’Rourke v. Fulton Bag & Cotton Mills, 133 La. 955, 63 So. 480 (1913) Knapp v. Guerin, 144 La. 754, 81 So. 302 (1919); Tidwell v. Meyer Bros., 160 La. 778, 107 So. 571 (1926). Plaintiffs do not, however, seek damages of the nature awarded in previous Louisiana cases, but limit their claim to recovery of the loss sustained by them as a result of defendants’ breach measured by the difference in the amount of stipulated rent paid by them and the fair rental value of the leased premises during the pendency of the suit for cancellation. Plaintiffs contend that since the defects for which defendants were responsible rendered the premises unsuitable for the purposes for which the premises were leased, there was a failure of the cause or consideration for plaintiffs’ obligation to pay rent and plaintiffs are responsible only for the fair rental value of the premises during their occupancy while the previous suit was pending.

As authority for employing such a measure of damages, plaintiffs cite four cases from other jurisdictions: Charles E. Burt, Inc. v. Seven Grand Corporation, 340 Mass. 124, 163 N.E.2d 4 (1959); Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961); Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17 (1973). No Louisiana authority is cited, and none exists.

The cases from., common law jurisdictions cited by plaintiffs offer little or no assistance in resolving the issues presented here under Louisiana law of leases and contracts generally. The ' Pines, Kline and Berzito cases all involved relatively short term leases of low rental residential housing. The courts of Wisconsin, New Hampshire and New Jersey, applying innovative reasoning under common law lease principles to meet modern-day urban sociological problems relative to residential housing, held in each case that the tenant was responsible only for the fair rental value of uninhabitable dwellings during their period of occupancy. The facts of those cases, the common law principles of law applied, and the underlying sociological reasons for the decisions are wholly dissimilar to the case before this court.

The Seven Grand case is more similar to the instant case on its facts. It involved a commercial lease and a failure of the lessor to provide electrical power, heat and elevator service as required by the lease. The lease was declared rescinded as of the date of filing suit for recission and damages. Damages were awarded for specific proven items of damage such as lost profits, cost to the lessee to obtain the needed services, and the like. The Massachusetts Supreme Court remanded the case to the trial court for determination of the period of the lessee’s occupancy after the date of recission of the lease, holding that the lessor was entitled only to fair rental value during occupancy after cancellation. The holding lends little support to plaintiffs’ position in the instant case in which plaintiffs seek to recover rent paid in excess of fair rental value for a period of occupancy prior to cancellation of the lease.

Even if there is common law authority for the proposition that a lessee owes only fair rental value during continued occupancy after a lessor’s breach of the lease but prior to cancellation, which proposition is not supported to any extent by even the cited cases, there is no authority for the proposition in Louisiana. To the contrary, there is substantial jurisprudence holding that the lessee remains obligated to pay the contracted rental during occupancy after a breach of the lease by the lessor. In the event of a failure by the lessor to make needed repairs for which he is responsible after being called on to do so, the lessee may, under the provisions of LSA-C.C. Art. 2694, cause them to be made and deduct the reasonable price paid from the rent due. Alternatively, the lessee may sue to dissolve the lease, as was done in this instance. Some cases recognize that under certain circumstances the lessee may be justified in terminating the lease and surrendering possession of the premises. The lessee may not, however, remain in possession and claim a reduction in the stipulated rental, whether denominated as damages or otherwise.

In Degrey v. Fox, 205 So.2d 849 (La. App. 4th Cir. 1968) the lessor failed to complete needed repairs which the lessor was obligated to make under the terms of the lease. The lessee continued to occupy the premises but thereafter tendered only partial payment of the stipulated rent, claiming a right to a just and proportionate reduction of the rent until the repairs were completed by the lessor. The lessor sued for eviction and recovery of the full past due rent. In denying the lessee’s claim to a reduction of the rental beyond a term expressly provided for in the lease contract, the court cited LSA-C.C. Arts. 2693 and 2694 and held:

The jurisprudence interpreting these articles is clearly to the effect that a lessor’s breach of his obligation to repair does not exonerate lessee from his obligation to pay the stipulated rental for his use and occupancy of the leased premises. (See Mulhaupt v. Enders, 38 La.Ann. 744; Pesant v. Heartt, 22 La.Ann. 292; Lewis v. Pepin, 33 La.Ann. 1417; Winn v. Spearing, 26 La.Ann. 384; Diggs v. Maury, 23 La.Ann. 59.) Defendant-lessee does not contend that he owes no rent for his use and occupancy of the premises. His only contention is that the quoted clause of the lease gives him a right to reduce the stipulated rental to a “just and proportionate” amount for as long as the owner neglected to complete the repairs.
We are of the opinion, as was the District Judge, that the quoted provision of the lease does not give the lessee such right, the provision being for the primary benefit of the owner permitting him to avoid cancellation of the lease. When the owner exercised his right to repair the premises and then failed to complete the repairs the lessee had the option to complete the repairs himself within a reasonable time (See Leggio v. Manion, La.App., 172 So.2d 748) and deduct the cost thereof from the rent to become due, or else, to terminate the lease and surrender possession of the premises to the owner.

In Gamble v. New Orleans Housing Mart, Inc., 173 So.2d 219 (La.App. 4th Cir. 1965), the lessee sued to cancel a lease because of an alleged breach by the lessor in arbitrarily refusing to consent to a sublease, and to recover all rent paid. The lessee remained in possession of the premises, depositing the monthly rental in the registry of the court. The lessor reconvened for the full amount of rent due under the lease. In awarding the lessor recovery of the rent due, the court held:

We cannot agree with the district court. A lessee cannot recover rent paid as damages for breach of contract of lease where he had the use of the premises during the period for which the rent was paid. Finnin v. Balter, 168 La. 527, 122 So. 716.

In Finnin v. Balter, 168 La. 527, 122 So. 716 (1929) a lease contract provided that at the beginning of the lease the lessor would make certain improvements and alterations. The lessee took possession but the lessor failed to comply with the contract, whereupon lessee sued to rescind the lease and to recover three months rent paid as damages, along with other damages. In denying recovery of the rent paid, the court held:

Plaintiff is not entitled to recover the rent paid, for the reason that for the period for which the rent was paid he had the use of the building.

In Baronne Building, Inc. v. Mahoney, 16 La.App. 84, 132 So. 795 (Orl.1931) the lessee resisted the lessor’s suit for rent, claiming entitlement to diminution of the rent due to the breach of the lessor’s contractual obligation to furnish heat in the leased building. The court found the lessee would have been warranted in vacating the premises, but not having done so, was liable for the rent. The court held:

The question seems to be well settled in this state that failure of the landlord to comply with his obligation with regard to such matters as heating, lighting, etc., does not justify the tenant in occupying the premises rent-free. He may follow either of two courses, abandon the premises, or, if the necessary repairs can be reasonably made, make them himself and deduct the cost from any rent due or to become due, but, in any event, he must pay rent for the period of actual occupancy.

Cameron v. Krantz, 299 So.2d 919 (La. App. 3d Cir. 1974) was an eviction suit in which the lessee contended he had the right to discontinue payment of rent and to retain possession of the leased premises until the lessor complied with his obligations to properly equip the premises. In rejecting the lessee’s defense, the court held:

Assuming for the purpose of this suit, but without making any determination of that issue, that Krantz failed to perform his obligations under the lease prior to December 1, 1972, when Cameron discontinued the payment of the monthly rentals, our conclusion is that Cameron nevertheless did not have the right to discontinue the rental payments due under the contract and also to retain possession and use of the leased premises. Cameron’s failure to pay the rentals, under the circumstances presented here, constituted sufficient grounds for a judgment evicting him from the leased premises.

In Friendly Finance, Inc. v. Cefalu Realty Investment, Inc., 303 So.2d 558 (La.App. 1st Cir. 1974), the lessee sought to recover rent paid after the effective date of cancellation of a lease by judgment in a prior suit based on breach of the lease by the lessor. The lessor sought to retain the rent paid as reasonable on a quantum mer-uit basis. The court found that the lessee did not continue to occupy the premises after the effective date of the cancellation and allowed recovery of the rent paid after the premises were vacated. In passing on the issue, the court noted:

The law is clear that a lessee cannot recover rental paid while it has possession of the leased premises. See Finnin v. Balter, 168 La. 527, 122 So. 716, 717 (1929) and Gamble v. New Orleans Housing Mart, Inc., 173 So.2d 219, 220 (La.App. 4th Cir. 1965).

While each of the cases discussed above; may be distinguished from the instant casa on its facts, they all stand as good authority for the principle that a lessee remains obligated for the contractual rent during continued occupancy of the leased premises prior to cancellation of the lease even though the lease has been breached by the lessor’s failure to comply with his obligations in regard to the condition of the premises.

As a measure of damages, the difference in fair rental value and rent actually paid, under the evidence in this case, does not bear any reasonable relationship to any proven loss sustained by the lessee caused by the lessor’s failure to replace the man-lift or to repair the leaky roof. The difference between fair rental value and rent actually paid might, in an appropriate case, be an acceptable measure or guide to establishing a lessee’s loss arising out of a lessor’s breach of the lease contract. It cannot, however, be accepted as an arbitrary measure of damages.

The evidence in this case shows the parking garage was operated at a substantial loss during the period for which recovery is sought. The evidence also shows, however, that the garage was being operated at a loss prior to the time the manlift became inoperable and suit was filed for cancellation of the lease. . The evidence reveals that the number of persons parking in downtown Shreveport declined substantially after the sublease was entered into because of oil companies moving away, opening of suburban shopping centers, and other factors entirely unrelated to lessor’s breach of the lease. Although there was some brief testimony by the garage’s manager relative to problems related to the lack of a manlift and to the leaking roof, the record does not support, and it is not urged by plaintiffs, that there is any causal relationship between the lessor’s breach and lessees’ operating loss. Plaintiffs’ position is that their formula is justified as a measure of damages because it measures the difference in value of what plaintiffs bargained for and what they actually received. This standard does not comply with LSA-C.C. Art. 1934, which defines recoverable damages as the amount of the creditor’s loss or loss of profits, within the contemplation of the parties at the time of entering into the contract.

Plaintiffs have not established any “loss” or “loss of profits”, and an arbitrary assessment of damages on the basis of the difference between rent paid and fair rental value cannot be made.

Further illustrative of the lack of relationship between the amount claimed by plaintiffs and the lessor’s breach is the manner of arriving at “fair rental value” by plaintiffs’ experts. The opinions of both an expert real estate appraiser and of an experienced parking lot operator as to fair rental value were based fundamentally on the amount of business actually done by the parking garage during the five-year period in question. The amount of business done, depending on economic factors in downtown Shreveport during that period, was totally unrelated, according to the evidence, to the lessor’s failure to repair the manlift and roof.

Summarizing, it is the holding of this court that plaintiffs, having continued to occupy the leased premises during the pen-dency of the previous suit prior to the cancellation of the lease, remained obligated for the contracted rent. As lessees in possession, they are not entitled to a reduction of or return of a portion of the rent in excess of fair rental value, even though the lessors breached their obligations to repair. Although entitled to recover their damages caused by the lessors’ breach, the lessees are not entitled to recover the difference between fair rental value and rent actually paid as an arbitrary measure of damages. The evidence does not establish a reasonable relationship between such a measure of damages and any loss sustained by the lessees as a result of the lessors’ breach of contract. The award of damages made by the district court based solely on such measure of damages must be reversed and set aside. No other damages are sought by plaintiffs.

This disposition of the case makes it unnecessary to consider the other contentions of the parties outlined earlier in this opinion.

For the reasons assigned, the judgment of the district court is reversed and set aside and there is judgment in favor of defendants and against plaintiffs rejecting plaintiffs’ demands. All costs, including the cost of appeal, are assessed to the plainti f f s-appellees.

Reversed and rendered.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Frank Henry GARRETT v. Patricia Carter GARRETT.
    No. 12770.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 6, 1976.

      Booth, Lockard, Jack, Pleasant & Lesage by James E. Bolin, Jr., Shreveport, for plaintiff-appellant.
    James B. Wells, Bossier City, for defendant-appellee.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   MARVIN, Judge.

From a decision below sustaining the wife’s second plea of reconciliation, the husband appeals.

Frank sued for the divorce on the grounds of adultery. Pat filed a first plea of reconciliation, alleging that Frank returned home on four specific dates and enjoyed conjugal relations with her during a two-week period which began shortly after he moved out. At the hearing on the issue, Pat testified to this. Frank denied it. The lower court overruled the first plea, saying “ . . . one of these parties is lying ...”

After the first hearing, Pat filed the second plea based on an act of intercourse in their home, during which she had pictures made by private detectives who irrupted from a closet with flashbulbs and cameras. Three sequential photographs are in evidence. This event occurred sixteen days after the date of the first hearing.

Frank did not and indeed, could not, deny what the photographs clearly depict, but claimed he was seduced, set up and entrapped by Pat’s “reprehensible scheme.” Because of this, he says, any reconciliation was legally defective and Pat should be precluded from asserting the plea.

The lower court sustained the plea.

The jurisprudence holds that the motive and the intention of both parties is the controlling test to establish the requisite forgiveness, acceptance by the offender, and the indication to restore and renew the marital relation, which legally constitutes reconciliation under La.C.C. Article 152. This language, of course, is derived from the cases cited. All circumstances and personal relations between the parties after the marital breach occurs may be, and as here, should be, looked to by the trial court in determining requisite intent on the issue of reconciliation.

Except where there is present force, duress or coercion, as in Blanchard, the physical act of intercourse between husband and wife is traditionally considered as the epitome of harmonious marital relations. If one spouse does not truly possess the requisite intentions for reconciliation but entices the other into an act of intercourse solely for the purpose of attempting to extinguish that spouse’s cause of action, the totality of the circumstances occurring after the marital breach should reveal the absence of intent. It is the intention of the deceitful spouse in such a hypothetical situation, however, and not the intention of the spouse being deceived, which aborts the reconciliation. Our courts deal with marital problems almost daily and the judiciary is not oblivious to the frailties or the hypocrisy of human nature. Our system of justice has not been hesitant to declare unconscionable practices or deceit in whatever circumstances they have been legally proved. In the absence of such things, however, husbands and wives do not willingly surrender themselves to each other without some mutual intent — of whatever duration — of maintaining or reestablishing the marital relationship. This physical act is one indicia of intent to be considered with all other circumstances, words and actions leading up to the act.

Intent, whether in criminal law or in civil law, is difficult of proof because we are not privileged to dissect the inner recesses and motives of the mind of a litigant or witness. Intent, however, in any case, need not be proved as a fact. It must be inferred from other facts which are legally proved to the trier of fact. Thus from one or more physical acts and surrounding circumstances does the trier of fact determine that intent has or has not been proved.

Was the intent present here, for however short a duration? Since this is a question of fact to be determined below, we resort to the lower court’s findings in part on the second plea:

“We have here for decision at this point the mover’s . . . second plea . The first of these we heard on May 2nd. The testimony, as I recall was diametrically opposed. One said yes, and one said no. We subsequently had the allegation of this act of condonation through intercourse on May 18th. Mr. Garrett on this occasion admits this situation but contends that he was lured and enticed to want [the] act of intercourse, which under the Code and Jurisprudence he contends does not affect a reconciliation. I am sensitive to the concept that under certain circumstances one act of intercourse will not, or at least should not affect a reconciliation. The Jurisprudence gives lip service to this concept. We note, however, that the Jurisprudence further, in giving lip service to this concept, as far as we can tell, has held that where there is one single act, in every case it held that there was a reconciliation. That’s in every case I know about except the Blanchard case where the court found that the relations were forced upon the woman. The totality of the circumstances here including the testimony of the previous trial held on May 2nd causes me to accept Mrs. Garrett’s version of these events relative to May 18th. We find as a fact that the respondent was not lured into this occasion, though we do find that the act on his part did not manifest overt intent to forgive or return to his wife. Likewise, I find that her intent was to obtain evidence for this court appearance, and I state that I don’t know frankly under the law whether I can actually consider for the facts the evidence we took on May 2nd. I doubt whether I can. But I will say that the evidence on this case causes me to reassess my conclusion of May 2nd. On May 2nd I concluded that Mrs. Garrett did not sustain the burden of proof. And it was the only possible thing that I could conclude under those circumstances. However, this situation causes me to accept those versions of those instances, and by the same token causes me to believe her version of what occurred on this occasion. So I find that whatever ideas or stated intent that the parties had in this particular circumstance of May 18th, under the totality of circumstances of the relationship between these parties has the effect under the Jurisprudence of Louisiana of affecting a reconciliation. And I therefore sustain the plea of mover at respondent’s costs. That’s it.” Record, pages 149 and 150.

The circumstances surrounding the first plea are in the record. These circumstances were friendly conversations, petting and caressing leading up to intercourse during one or more of the several visits made by the husband to the wife after he filed suit for divorce. The couple also went out together with their son on one occasion and they talked about what had happened regarding the husband’s grounds for divorce. The husband was at the home daily, and it was he who made the first overture for sexual intercourse after he filed suit, according to the wife. She also testified that the acts of intercourse did not cease even after she had filed the exception of reconciliation on those grounds. ' These circumstances, words and actions of the parties support the trial judge’s conclusions. The fact that the second plea is the one sustained and appealed, did not make it error, as appellant contends, for the trial court to consid- er the totality of circumstances. The trial court should have considered the totality of circumstances in determining whether to sustain the second plea.

Reconciliation, and particularly the intentions of the parties, are primarily questions of fact for the trial court whose decision shall not be disturbed unless manifestly erroneous. Finding no manifest error, the lower court is

Affirmed at appellant’s cost.

      . Cases cited and discussed by counsel and considered by the court are Martin v. Martin, 151 La. 530, 92 So. 46 (1922); Collins v. Collins, 194 La. 446, 193 So. 702 (1940); Stewart v. Stewart, 175 So.2d 692, (La.App. 1st Cir. 1965); Brown v. Brown, 260 So.2d 66 (La.App. 4th Cir. 1972); Garner v. Garner, 222 So.2d 598 (La.App. 2d Cir. 1969); Blanchard v. Blanchard, 234 La. 790, 101 So.2d 671 (1958), and Bloodworth v. Bloodworth, 306 So.2d 812 (La.App. 3d Cir. 1975).


author: PRICE, Judge.

text:
    W. B. NORTON, Plaintiff-Appellant, v. Charles A. ADDIE, Defendant-Appellee.
    No. 12762.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Granted Feb. 13, 1976.

      Nelson & Achee Ltd. by Dale G. Cox, Shreveport, for plaintiff-appellant.
    Nolan Harper, Shreveport, for defendant-appellee.
    Before PRICE, HEARD and HALL, JJ.
   PRICE, Judge.

W. B. Norton brought this possessory action against Charles A. Addie seeking to have his possession recognized and maintained over a disputed strip of land lying along a common boundary of property owned by each in Caddo Parish.

Several months prior to plaintiff’s filing of this suit a boundary action was filed by Addie asking for a judicial determination of the boundaries between their respective lands. Addie also obtained a temporary restraining order and a preliminary injunction to prevent Norton from contracting to cut the timber on the disputed area. In preparation for the filing of the boundary action, Addie had a survey of his property made by Ben E. Ramsey, a civil engineer.

This survey, which was filed in evidence in this case, purports to show the SE -J4 of the SE 14 of Section 16, T23N, R15W, which was purchased by Addie in May 1962. The survey also reflects the existence of an old fence line running to the north of and parallel to the south line of Section 16.

The area between the old fence line and the south line of Section 16 is the area in dispute and is described in plaintiff’s supplemental petition in this action as follows:

“That portion of land which defendant, Charles A. Addie, contends in boundary action # 222,475, lies within the southeast quarter (SE 1/4) of the southeast quarter (SE 14) of Sec. 16, T23N, R15W, Caddo Parish, Louisiana, as per map of survey dated June 7, 1974, made by Ben E. Ramsey, Registered Civil Engineer for defendant, Charles A. Addie and more particularly described as, starting at a point which Mr. Addie considers to be the southwest corner of the southeast quarter (SE 14) of the southeast quarter (SE 14) of Sec. 16, then run approximately 114' north to a fence that has been in place since 1904 and maintained by the Nortons, then approximately 1320' east along this fence, then south approximately 158', then west approximately 1358' to the point of beginning.”

Plaintiff owns land in Section 22, T23N, R15W, which lies south of and adjacent to Section 16.

It is plaintiff’s position that he was in possession of the above described property at the time of the filing of this action and had possessed it for more than a year prior to this time; that defendant, Addie, has disturbed his possession by the filing of the suit to enjoin plaintiff from cutting the timber from this property.

Addie filed an answer and reconventional demand in which he denies Norton has had possession of the disputed area and asserts he has had possession of the tract in question since acquiring title to the SE 1/4 of the SE 14 of Section 16 in May, 1962.

Addie further alleges plaintiff has disturbed his possession by recently constructing a barbed wire fence through a portion of the SE}4 of the SEJ4 which is owned and possessed by him. He also seeks damages because of this disturbance of his possession by plaintiff.

The trial court rejected Norton’s demands and rendered judgment in fayor of Addie on his reconventional demand maintaining his possession of the disputed area and ordering Norton to assert any adverse claim of ownership in a petitory action within sixty days. The court further awarded Addie damages in the amount of |450.

Norton has appealed from this judgment asserting that the trial court erred in finding his evidence insufficient to establish possession and in finding that Addie had shown any actual acts of possession sufficient to allow him to be recognized as a possessor under Louisiana Code of Civil Procedure, Article 3658.

We find the evidence in the record insufficient to sustain the demands of either party.

Article 3658 of the Louisiana Code of Civil Procedure provides:

“To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

It is apparent from the evidence that doubt has existed for many years as to the correct location of the south line of Section 16, T23N, R15W. This has resulted in the subject area remaining unused other than for the growth of timber over an extensive span of time. None of the witnesses for either party could ever recall timber having been cut in this area during their lifetime. Primarily Norton contends he has had physical possession of the disputed area because he and his lessee have grazed cattle up to the old fence row and that the old fence was maintained by either himself or the lessee. The evidence in regard to the condition and maintenance of the old fence is conflicting. In any event we do not find the evidence of this purported use to be sufficient to overcome other evidence in the record which shows Norton did not consider himself to be in undisturbed possession of this disputed area.

Norton sold the timber on his adjacent land in 1964 and 1965 to Early Young of Plain Dealing. Young testified Norton instructed him not to cut into the disputed tract.

Paul Whetstone testified Norton had discussed the timber with him at one time and informed him he would rather not sell any timber beyond a blazed line until the boundary had been settled.

Addie testified Norton had on several occasions told him the section line was not on the old fence row and that he (Norton) had blazed a line which he thought was correct. Addie later painted the line as allegedly blazed by Norton. There is no testimony in the record to refute this testimony of Addie.

Addie’s vendor, Cordell Brown, testified the area involved in this litigation had been in dispute for many years and that Norton had always maintained that neither he nor Norton should cut the timber in the area until the line was settled.

We find this evidence to show Norton was not in quiet possession of the subject property for more than a year prior to the bringing of this action as required by Article 3658.

Nor do we find Addie has presented sufficient evidence to show he or his ancestors in title have ever had corporeal possession over the disputed area. The only physical usage of the property by Addie has been his occasional hunting on the property. His exercise of civil possession by paying the taxes on the property since 1962 is insufficient to enable him to maintain a possessory action without having first established corporeal possession by more substantial evidence than an infrequent hunting on the land. See Theriot v. La-Terre Company, Inc., 256 So.2d 710 (La.App. 1st Cir. 1971).

For the foregoing reasons the judgment appealed from is affirmed in so far as it rejects the demands of plaintiff, W. B. Norton against defendant, Charles A. Addie, and the judgment is otherwise reversed and the demands of Charles A. Addie in his reconventional demand against W. B. Norton are rejected. Costs of this proceeding, including this appeal, are to be divided equally.


text:
    Leslie A. COWLEY v. Dan P. LOGAN, Sr.
    No. 12759.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Blanchard, Walker, O’Quin & Roberts by Joseph W. Milner and Jerald L. Perl-man Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendant-appellee.
    Before HALL, MARVIN, and HEARD, JJ-
   MARVIN, Judge.

Cowley, the lessor-appellant, appeals from a judgment below rejecting his demands against Logan, lessee-appellee, for rent allegedly due under a written lease of farm land. We affirm.

During the time surrounding the term of the lease, the federal government had a program of supporting the price of cotton by paying to the farmer a fixed price per pound for cotton produced on acreage allotted or allowed to the farmer by the Agricultural Stabilization and Conservation Service (ASCS) of the U.S. Department of Agriculture. The lease involved here the cotton acreage allotment originally available to Lessor on approximately 291 acres for the year 1971. Before the lease was entered into, Cowley grew wheat on this acreage.

The lease provided that Cowley’s cotton allotment would be worked by Logan and his co-lessee, Ortego, and that “the government check for these properties will be received by Lessor . . . ” The applicable federal laws and regulations (7 CFR 795.1) imposed an annual limitation of $55,000.00 on the amount which would be paid under the cotton allotment program to any one participant in the program. In partnership with his son on other lands, Logan also participated in the cotton allotment program during the time Cowley’s lands were being farmed under the program and the lease.

Cowley made application for, and received from ASCS under the price support program, $20,500.00, which was the maximum allowed by the regulations for the acreage being farmed by Logan and Orte-go under the lease. Cowley claimed from ASCS all of the program payments and “reported” (to use ASCS terminology) on a government form that there were no other persons sharing in the cotton. A subsequent review or audit by the government disclosed that the cotton had been ginned by Logan and Ortego. Because Logan had received price support payments through operations elsewhere with his son, the maximum payment limitation of $55,000.00 applied to Logan’s interest in the cotton produced on the Cowley acreage allotment. After hearings and appeals on this issue within the U.S. Department of Agriculture, Cowley refunded to the government $7,309.04. Cowley then brought suit against Logan for this amount and for the “expenses” incurred by Cowley in attending hearings with federal agencies.

In the trial court, Cowley contended the true consideration of the lease was that he would receive maximum allotment of $20,500.00 from the government. Logan contended below that he never discussed with Cowley or otherwise guaranteed or agreed to the dollar amount which Logan was to receive and that Cowley knew of his other cotton farming operations. All factual disputes were resolved by the trial court in favor of Logan.

On appeal, Cowley contends that Logan was “unjustly enriched” at Cowley’s expense or impoverishment and that restitution should be ordered' on the authority of Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1968). Minyard is in-apposite on its facts. Minyard sought restitution of damages it had to pay to a third party because of the failure of materials manufactured by the defendant but guaranteed to the third party by Minyard. The Supreme Court summarized the factual and legal basis for applying the principle in these words:

“Even though Minyard has been compelled to pay the amount [to the third party] . . . because of its technical or constructive liability, when the real fault or cause of damage to [the third party] was the manufacturer’s defective caulking compound, the law provides no express statutory remedy for Minyard in this situation.
“The courts have, however, since early times, sought to grant relief in such a situation.” 205 So.2d 427. (Material in brackets supplied for clarity).

Here, the parties have written their own law by the terms of the lease. Here, Logan did not agree to pay Cowley any fixed dollar amount for the lease. The agreement was that Cowley would receive the “government check.” ' No dollar amount was mentioned in the lease agreement. Logan received nothing from Cowley under the lease other than the privilege of producing and selling cotton from the land. Logan was to receive, and received, nothing under the lease with Cowley from the government price support program. Cowley received the government check. Logan and Ortego were to receive, and received, the cotton produced. This is exactly what the lease contemplated. This was the reasoning of the trial court, which we approve.

The provisions of the written lease do not support Cowley’s contention of the consideration being the maximum government subsidy. There are twenty-two typewritten lines to the lease after the introductory paragraph. Eleven of these lines were deleted or changed in part by the parties to the lease. The agreement was typewritten by Mrs. Cowley. These factors support the lower court’s factual conclusion that Cowley failed to prove by a preponderance of the evidence that Logan agreed that Cowley was to receive the maximum allotment. Both Logan and Cowley, as farmers, were knowledgeable and experienced about the price support program, how it worked, and the manner in which the subsidy was allowed. It would have been a simple matter for them to have written words or dollar amounts onto the typewritten agreement to the effect contended by Cowley had this been their intention. If the term “government check” be ambiguous, the ambiguity must be interpreted in favor of the Lessee. See Beebe v. Schmitt, 308 So.2d 887, 888 (La. App. 2d Cir.1975).

We find no manifest error on the part of the trial court.

Affirmed at appellant’s cost.


text:
    W. L. BRUMMETT d/b/a Brummett Well Service, Plaintiff-Appellee, v. HAMEL’S DAIRY, INC. and Milton Hamel, Defendants-Appellants.
    No. 12758.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Peters, Ward & Miller by Hugh T. Ward, Shreveport, for defendants-appellants.

      Booth, Lockard, Jack, Pleasant & Lesage by Troy E. Bain, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and HEARD, JJ-
   HALL, Judge.

This case involves a dispute as to the price charged by plaintiff, W. L. Brummett d/b/a Brummett Well Service, who drilled a water well for defendant, Hamel’s Dairy, Inc., without a prior agreement as to the price to be charged. After the successful completion of the well, plaintiff presented defendant with an invoice for $12,000.00. Defendant paid plaintiff $8,000.00, but refused to pay the balance contending the charge was excessive. Plaintiff sued defendant to recover the balance of $4,000.00. After trial, the district court, pursuant to written reasons, rendered judgment against defendant in the sum of $2,983.58. Defendant appealed.

In the fall of 1970, problems developed in Hamel Dairy’s existing water well and Milton Hamel, president of the dairy, contacted plaintiff, a water well driller of many years experience. Plaintiff had previously drilled three wells, two successful and one unsuccessful, for the dairy in 1965, dealing at that time with Hamel’s father prior to his death.

Brummett and Hamel met and it was agreed that Brummett was to drill a water well to supply the dairy with a capacity at least equal to the existing well. No price was agreed upon in advance. Hamel testified he asked for a price but plaintiff suggested that Hamel was in a better position to bear the risk of an unsuccessful well and under this arrangement plaintiff would not give him a price in advance but would “treat him right.” Brummett testified it was understood he was to bear the risk of an unsuccessful well, and that Hamel had asked him for a price but then asked him to start drilling immediately before a price could be worked up. The only way to resolve the direct conflict in the testimony as to who was to bear the risk is to conclude that there was simply no meeting of the minds on that subject.

In its written reasons for judgment, the district court found that plaintiff’s cost of drilling the well including the equipment, overhead and labor amounted to $8,720.11. The court further found that plaintiff charged defendant $983.58 for equipment over and above his actual cost. The court made an award of $2,983.58 as being an equitable profit to plaintiff of approximately 34%, which the court felt reasonable in view of the high risk involved in drilling water wells, taking into consideration the overall risk of a water well driller from year to year and not the risk involved in this particular case.

On appeal, appellant specifies as error the court’s finding as to plaintiff’s cost, appellant contending the actual cost was considerably less. Appellant further specifies as error the consideration of the overall risk to the water well driller, contending there was practically no risk involved in this case because the well was drilled only fifteen feet from a producing well and also because, appellant contends, the risk was on the dairy not the driller. Appellant further specifies as error the awarding of legal interest from date of judicial demand, contending that in a quantum meruit case interest is only due from date of final judgment.

Plaintiff urges the correctness of the trial court’s decision, contending he is entitled at least to the amount awarded by the trial court.

Both parties agree that in the absence of an agreement between the parties as to price, plaintiff is entitled to be paid for drilling the water well under principles of quantum meruit, the source of which is LSA-C.C. Art. 1965. The law applicable to this case is well summarized in Swan v. Beaubouef, 206 So.2d 315 (La. App. 4th Cir. 1968) in which it was held:

“ . . . Generally quantum meruit is based on the legal maxim that no one is to enrich himself at the expense of another .
* * * * * *
“The theory of quantum meruit authorizes the party performing the services to receive compensation for his work, although no contractual agreement was reached with respect to price to be charged.
“The determination of this amount owed by the party receiving the benefit shall be derived from a reasonable evaluation of the services performed as adjusted to the circumstances of the individual situation. See Haase v. Brumfield, La.App., 137 So.2d 680. Thus a necessary issue to the suit involving quantum meruit is the reasonable evaluation of the services when such recovery is due and owing.
* * * * * *
“We are constrained to conclude that the trial judge erred in his determination of the amount to be recovered, and his judgment should be amended to allow recovery which takes into account normal operating expenses, depreciation, and a fair profit for the efforts of the contractor ...” 206 So.2d 315, 317.

Plaintiff is entitled to recover his actual costs, including general overhead attributable to this project, and a reasonable profit.

Our review of the evidence convinces us that the trial court did in fact err in calculating plaintiff’s actual cost. In answers to interrogatories, plaintiff submitted a detailed itemization of his costs for all materials and equipment, rig time, and profit, totaling $12,000.00. In another list prepared by plaintiff and filed into evidence, specific items of overhead are itemized. We find that plaintiff’s actual out-of-pocket costs for materials and equipment, tax, and the cost of plugging the old well, was $4,826.21 (items 1 through 60 of answers to interrogatories). Plaintiff is entitled to be paid this amount for his out-of-pocket costs.

The itemized list of specific overhead items (items 63 through 68) attributable to this project, total $1,795.25. Plaintiff is entitled to be paid for these overhead items. Plaintiff’s answers to interrogatories also list two items for "rig time” at a certain price per foot, totaling $1,980.00. These items, according to plaintiff’s own testimony, amount to charges for general overhead and profit. To the extent that these items include overhead, they duplicate the itemized overhead charges and are not proper charges. To the extent that they constitute profit, they duplicate the general award of a fair profit and therefore should not be charged separately.

Plaintiff charged defendant a profit of $953.58 on the materials and equipment furnished. The mark-up on these items is not seriously contested and plaintiff is entitled to recover this charge.

The main difficulty in this case comes in fixing a reasonable profit. Virtually all of the experts who testified agreed that water well drilling is a high risk business and that in order to show an overall annual profit it is necessary that the contractor realize a substantial profit on each successful well. Several well-qualified experts gave their opinions as to what they considered a reasonable price for this particular well. The opinions of the experts ranged from a low of $7,500.00 to a high of $15,000.00. The testimony of the experts reveals that had this project been let out for bids the bids could be expected to vary several thousand dollars.

We have previously determined that plaintiff is entitled to be paid $4,826.21 for his out-of-pocket costs for materials, $953.-58 as profit on the sale of materials and $1,795.25 for overhead attributable to this project or a total of $7,575.04. We further conclude, based on the totality of the evidence, that plaintiff is entitled to be paid a fair profit of $2,000.00, in addition to the foregoing items, or total of $9,575.04. Plaintiff has already been paid $8,000.00, which means there should be judgment for $1,575.04. The judgment of the district court will be amended accordingly.

The district court awarded legal interest from date of judicial demand. In North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App. 2d Cir. 1973) this court held that legal interest in a suit on quantum meruit is granted only from date of final judgment, citing Johnston v. Empire Gas, Inc. of Oak Grove, 268 So.2d 333 (La.App. 3d Cir. 1972); Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (1949); and Connette v. Wright, 154 La. 1081, 98 So. 674 (1923). In a later case, Succession of Butler, 294 So.2d 512 (La. 1974), the Supreme Court held:

“We agree with the contention of defense counsel that in a suit in quantum meruit interest is not allowed from the date of judicial demand. Legal interest should be allowed from the date of final judgment. Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (1949); Connette v. Wright, 154 La. 1081, 98 So. 674 (1923).” 294 So.2d 512, 516.

Plaintiff argues that under LSA-C.C. Art. 1938 and Friede v. Myles Salt Co., Ltd., 177 So. 105 (La.App.Orl.1937); Pease v. Gatti, 205 La. 949, 18 So.2d 511 (1944); Culpepper v. Slater, 131 So.2d 76 (La.App. 2d Cir. 1961) and Carey v. Sentell, 64 So.2d 451 (La.App. 2d Cir. 1953) interest is due from the date the debt becomes due.

A debt owed under quantum merit does not become due until the amount is ascertained, which is the date of judgment. We adhere to the decision of this court in the North Development Company case and of the Supreme Court in Butler and amend the judgment of the district court to provide for legal interest from date of judgment.

For the reasons assigned, the judgment of the district court is amended and recast as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, W. L. Brummett, and against the defendant, Hamel’s Dairy, Inc. for the full sum and amount of $1,575.04, with legal interest thereon from date of final judgment until paid, and all costs of these proceedings, including the cost of appeal.

Amended and recast.


author: GLADNEY, Judge.

text:
    Joe ALESCE, Plaintiff-Appellee, v. HUTTON-DONALDSON, INC., Defendant-Appellant.
    No. 12751.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 13, 1976.

      Roos & Roos by Armand W. Roos, Jr., Shreveport, for defendant-appellant.
    J. Peyton Moore, Shreveport, for plaintiff-appellee.
    Before PRICE, GLADNEY and MARVIN, JJ.
   GLADNEY, Judge.

The plaintiff herein purchased á Dodge truck from Hutton-Donaldson, Inc., a car dealer in Shreveport. He has instituted this suit for the recovery of a portion of the purchase price on allegations that the sale price of the vehicle was misrepresented to him as a result of which he made an overpayment of $650.12. Judgment was rendered for this amount against defendant who has appealed.

On October 8, 1974 Alesce discussed with Danny Hyde, one of defendant’s salesmen, a trade wherein plaintiff would purchase the Dodge truck and receive credit for a trade-in of his used car. A sales contract on defendant’s printed form was prepared by Hyde wherein he listed the selling price of $5878 for the truck and indicated a trade-in allowance of $2211 for petitioner’s 1969 Chrysler station wagon. Also certain charges for taxes, license, etc. were listed, creating a cash balance of $3,828.18 due by plaintiff to the defendant. Plaintiff drew a check for this amount payable to defendant. This check and the contract were presented to defendant’s sales manager Ray Manuel whose approval of the contract was required.

Manuel advised plaintiff he could not approve the contract because Hyde made a ' mistake in listing the selling price of the truck at $5878 rather than the correct amount of $5250. He said the revision of this figure was of no significance to plaintiff inasmuch as the amount which plaintiff would owe, namely $3828.18, would be made the same in the new contract by listing the trade-in allowance as $1583 in lieu of the $2211 given in the Hyde prepared proposal. The record indicates plaintiff made no specific objection to the new contract and agreeably signed it, saying “. . Well, it don’t make any difference as long as I don’t have to pay any more.” Manuel assured him he would not have to pay more and that his check as given to Hyde with the first agreement was sufficient. Plaintiff’s testimony does not dispute that of Manuel and Hyde to the effect that the new contract prior to its execution contained all of the terms as proposed by Manuel. Plaintiff does not dispute their testimony that a copy of the contract was given to him at the time it was signed.

The agreement as consummated is free from ambiguity and plaintiff must be held responsible for having read it before he signed it. It plainly provided:

“This order contains the entire agreement affecting this purchase, and no other agreement, understanding, representation or warranty of any nature concerning same has been made or entered into or is a part of this transaction. . . .”
“I hereby acknowledge receipt of a duplicate copy of this order.”

The first contract as prepared by Hyde was not produced. The second prepared contract was the only completed agreement in writing executed by both parties. The purchase order as prepared by Manuel gave the correct figure and there is no evidence to indicate misrepresentation or fraud. Both parties tendered the consummated contract in evidence and relied upon it without restriction.

The trial judge observed in his reasons for judgment that there were two contracts and that the first contract was the real contract. In this conclusion he erred. The “first” contract was not legally consummated for it did not receive the required approval of Manuel. The “second” written contract was legally completed with full understanding of the parties. Under these circumstances neither party may rely upon prior discussions or understanding to change the terms of the document. LSA-C.C. Art. 2276; Baton Rouge Sash & Door Company, Inc. v. M. A. Saale, 298 So.2d 115 (La.App., 1st Cir. 1974); Piliawsky v. Colar, 112 So.2d 730, (Orl.1959).

The Civil Code articles and authorities cited above indicate the trial court erred in finding two contracts between the parties and that the “first” contract governed the transaction. The judge likewise erred in considering parol evidence insofar as it was inconsistent with the written consummated contract.

By reason of our ruling of the main demand we find it unnecessary to decide ap-pellee’s claim for attorney’s fees.

For the foregoing reasons, the judgment of the trial court is reversed and it is ordered, adjudged and decreed that there be judgment in favor of defendant Hutton-Donaldson, Inc. and against plaintiff Joe Alesce, rejecting the demands of plaintiff. All costs are assessed to plaintiff-appellee.


author: HEARD, Judge.

text:
    Eugene H. WATSON, Sr., Plaintiff-Appellant, v. Mrs. Ceola S. SCOTT et al., Defendants-Appellees.
    No. 12772.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 13, 1976.

      Holloway, Baker, Culpepper & Brunson, Jonesboro, Hal Henderson, Arcadia, Nelson & Achee, Ltd. by Roland J. Achee, Shreveport, for plaintiff-appellant.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for defendants-appellees.
    Before PRICE, HALL and HEARD, JJ.
   HEARD, Judge.

Eugene H. Watson, Sr., purchased a 40-acre tract of land from defendants, which tract adjoined that of Allen D. Morgan, plaintiff in suit No. 12,763, Morgan v. Culpepper, decided this day by this court, 324 So.2d 598. Plaintiff petitioned the court for recognition of his entitlement to a right of passage against the same defendants and over essentially the same road as that involved in the Morgan .suit. His claim, however, is predicated upon an alleged right of way which plaintiff contends was granted him by notarized instrument delivered to him by defendants on the same day as his deed to the 40 acres. Exception of no cause of action by defendants was overruled and the case went to trial on the merits. The lower court denied plaintiff's claim and ordered his suit dismissed at his cost. We reverse the judgment.

Although this case was decided and judgment was rendered prior to the lower court judgment in the Morgan case, the appeals were heard during the same day before this court and appeared on the calendar as consolidated cases. However, the cases are dissimilar in a number of respects, two of which should be mentioned in this preliminary account of the facts. In the instant case, Watson purchased his property from defendants by deed which was delivered to plaintiff on the same date as an instrument which purportedly granted a right of way across defendants’ land. The second variance lies in plaintiff’s allegation that defendants, as vendors of the subject property to petitioner, should be required to grant a right of way to petitioner, even if a written right of way agreement did not exist.

On appeal plaintiff contends: (1) there should be judgment granting him a fifty foot right of way across defendants’ property under the right of way agreement signed by defendants, or (2) a right of passage under Louisiana Civil Code Articles 699-700. Alternatively, plaintiff asked that the case be remanded for the taking of additional evidence and, in the further alternative, that his right to file another suit be expressly reserved.

We consider first the effect of the purported right of way instrument which is reproduced as follows:

Registry
Number V-S931
State of Louisiana
Parish of Bienville
We the undersigned Mrs. Ceola S. Scott, Mrs. Delphie B. Thomas and Mrs. Vadna B. Culpepper, only heirs of W. H. Burkett deceased hereby dedicate right of way for road 50 feet wide from Gravel road north of House, South to Section line of Section seventeen (17), Twp. 15 N., R. 10 W., Bienville Parish, Louisiana.
(S) Mrs. Ceola F. Scott Mrs. Ceola F. Scott
(S) Mrs. Delphia B. Thomas Mrs. Delphia Thomas
(S) Mrs. W. J. Culpepper Mrs. W. J. Culpepper
Sworn to before me the undersigned Notary Public, this the 4th. day of November 1972.
(S) Lawrence W. Scott Notary Public

This instrument, standing alone, perhaps would not convey a right of way for a road to anyone, since neither the name of the person to whom the road is granted is mentioned, nor is there any stated consideration for the dedication. However, the instrument must be considered in the light of the circumstances surrounding its delivery to plaintiff.

By deed dated November 1, 1972, Vadna B. Culpepper, wife of W. J. Culpepper, and Mrs. Delphia B. Thomas, wife of D. P. Thomas, sold to the plaintiff, Eugene H. Watson, Sr., the following described property in Bienville Parish, Louisiana:

The Northeast Quarter of the Northwest Quarter, Section 16, Township 15 North, Range 10 West, Bienville Parish, Louisiana

Although the deed was executed on November 1, 1972, the transaction was not closed until November 4, 1972. On the day of the closing Lawrence W. Scott, the same notary who signed the deed, notarized the right of way instrument which has been reproduced above. The words and letters “Twp. 15 N., R. 10 W., Bienville Parish, Louisiana”, were added by the clerk of court when the deed and right of way instrument were filed of record on June 14, 1973.

The evidence and testimony found in the record establish that plaintiff’s property does not front on any public road but that access to plaintiff’s property has been gained by means of the public road and the road across defendants’ property and thence across Morgan’s property, up to the time the present lessee of defendants’ property placed a locked gate across the entrance from the public road.

There was testimony that all the roads which defendants asserted gave entry to plaintiff’s property were no longer passable in bad weather and had fallen into disuse over the years prior to plaintiff’s purchase. We find the evidence amply supports the conclusion, contrary to that of the trial judge, that plaintiff’s property is “enclosed” property- within the meaning of the civil code articles.

Watson testified that when he arrived at the bank for the closing of the sale he told defendants he would not pay the $8,000 cash consideration for the sale unless he was granted a right of way to the property. While defendants admit the right of way instrument was signed and delivered the same day the transaction was closed, they claim that Watson did not raise the issue of access until after the sale had been concluded. A portion of the map of the area, filed as P-3, was filed in evidence and a portion thereof reproduced in plaintiff’s brief. It clearly indicates there is a public road from defendants’ property running to Louisiana Highway 1.54, north of plaintiff’s property, and this road continues through defendants’ property in the Southeast Quarter of Section 8, later turning to the east through the property of a Mrs. Owens, and then through the property of Allen D. Morgan [plaintiff in the case consolidated on appeal with the instant case].

While a right of way across defendants’ land would not take plaintiff all the way to his property, it would enable him to reach the land of Morgan, who testified that he would grant plaintiff the right to cross his land if the latter was successful in obtaining the right of way over defendants’ property. Thus, if plaintiff reaches the southeast terminal of the road over defendants’ property he is assured of a right of passage over Morgan’s property, which would allow him access to the northeast corner of his (plaintiff’s) property.

Even if defendants intended, as they claim, that they would grant the right of way set forth in the instrument “only if plaintiff had no other way to his property”, we find from the evidence that plaintiff has no other reasonable access to his property.

Before leaving this issue we note this court has considered prior use of a particular road as a strong corrobative circumstance that the road is one which can be used all year, since the road over the defendants’ property has been used in the past by both Watson and Morgan. Quoting from the opinion in Pittman v. Marshall, 104 So.2d 230 (La.App. 2d Cir. 1958):

. Moreover, the existence of the right of way in its present location for so many years is a strong corrobative circumstance supporting the testimony that the location is one which may be used during all seasons of the year, in contrast to which the testimony shows that the suggested way over the With-row property is through low lands and oyer drainage ditches and could only be considered as a dry weather road. In Littlejohn v. Cox, 15 La.Ann. 67, the rule is laid down to the effect that in the exercise of the right of passage the road should be located in a place where it would be least injurious to the person in whose estate the passage is granted, but at the same time proper regard should be given to the interests of the parties claiming the right of way.

Although the purported dedication does not name a specific grantee, defendants clearly intended to convey to plaintiff a right to use the road across defendants’ property. The ambiguities existing in the “dedication” instrument must be resolved against the maker who, in this instance, was Mr. Culpepper, husband of one of the vendors, who also prepared the deed of the property to Watson. See Louisiana Civil Code Articles 1949, 1955, 1958, 2474; also Edwards v. Terminix 57, Inc., 292 So.2d 851 (La.App. 2d Cir. 1974).

We conclude this instrument creates in Watson, as vendee of an estate from vendors, the right to use the road which was in existence at the time plaintiff purchased the property from defendants. The intention of the plaintiff is clear, i. e., that he would not have purchased the enclosed forty acres, which is admittedly mostly swamp land and useful mainly for hunting, had he not been assured that upon payment of the $8,000 to defendants he would have a right of passage over the road he was accustomed to use to reach his property.

Having found plaintiff was entitled to right of passage under the instrument passed in connection with the deed, there is no need to discuss plaintiff's alternative claim under C.C. Arts. 699 and 700.

Finally, since the “dedication” does not indicate the exact location of the road and, taking cognizance of our decision handed down this day in Morgan v. Culpepper, Number 12,763, La.App., 324 So.2d 598, we reverse the judgment of the trial court and remand the case for the purpose of fixing the location of the servitude across defendants’ land in conjunction with fixing of the servitude granted Allen D. Morgan across the same land. Defendants are cast with all costs.


author: JULIAN E. BAILES, Judge Pro Tern.

text:
    James Robert LAMBERT et al. v. Henry PADGETT et al.
    No. 10493.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 5, 1975.
    Cyrus J. Greco, Baton Rouge, for appellants.
    Frank M. Coates, Baton Rouge, for Highland Ins. & Jas. Teague.
    David W. Robinson, Baton Rouge, for John Hennes Trucking Co.
    Daniel R. Atkinson and Carey J. Gug-lielmo, Baton Rouge, for Grove Mfg. Co.
    Boris F. Navratil, Baton Rouge, for Thurman Davenport.
    John V. Parker, Baton Rouge, for Henry Padgett.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tern.
   JULIAN E. BAILES, Judge Pro Tern.

This is an action in tort. The plaintiff was injured while employed as an oiler-driver on a 55 ton hydrocrane at a jobsite in Pointe Coupee Parish, Louisiana. From an adverse judgment in the district court, the plaintiff has appealed. We affirm.

The defendants are: Henry Padgett, the operator of the hydrocrane on which the plaintiff was injured; James A. Teague, executive officer of James A. Teague Rental Equipment, Inc., and its insurer, Highlands Insurance Company; John Hennes Trucking Company, which rented the hydrocrane from James A. Teague Rental Equipment, Inc., and its insurer, Zurich Insurance Company; Grove Manufacturing Company, the manufacturer of the hydrocrane; and Thurman Davenport, a supervising employee of John Hennes Trucking Company. Hendrickson Manufacturing Company, the manufacturer of the chassis on which the hydrocrane was mounted, was also named a defendant, however, it was dismissed from the suit on a declinatory exception to the jurisdiction of the trial court over the person of the defendant.

This case has been before us previously as a workmen’s compensation matter. Lambert v. James A. Teague Rental Equipment, Inc., 278 So.2d 544 (La.App. 1st Cir. 1973). There we noted that on April 9, 1971, the plaintiff was dispatched to a location near New Roads, Louisiana, by James A. Teague Rental Equipment, Inc., whose crane had been leased by John Hennes Trucking Company, Inc. Lambert’s responsibility was to drive the crane to the jobsite, assist in its setting up prior to the left and, thereafter, to maintain it until released. Also assigned with the crane on this job was its operator, Henry D. Padgett.

On the morning of the accident, Lambert drove the rig to the location and there met Padgett who had previously determined where the crane was to be placed. Lambert then maneuvered the machine into the desired position and got out of it to begin the setting up of certain balancing and bracing devices necessary to its operation. First to be rigged was a balancing mechanism called a counterweight. Next, he was to set the outriggers which are braces extending out from the chassis on each side of the vehicle. Padgett, in the meantime, had mounted the cab of the crane and had begun operating it.

With the help of Farrel O. Alford, a boilermaker present at the time, Lambert set the outriggers on the left side and then signalled Padgett by a circular motion with his hand extended over his head. According to testimony of Padgett this signal was for him to turn the boom around in order for the outriggers on the right side to be placed in position. This meaning of the signal was verified by Mr. Teague. However, Lambert testified that to him it meant that he, Lambert, was going to the opposite side. We accept Mr. Padgett’s explanation, as did the trial court.

Lambert and Alford then walked around the truck preparatory to setting the right outriggers. In so doing, the plaintiff then climbed up on the truck to remove a seventy-five (75) pound shoe for the outrigger base from its storage slot. The shoe apparently was stuck in the slot, and as Lambert and Alford were attempting to remove it, they suddenly heard the crane motor race. The plaintiff then saw the counterweight, coming toward them and he pushed Alford out of the way; however, he could not move himself in time and he was crushed in the pelvic area of his body by the counterbalance.

The trial judge found that the accident was due to the plaintiff’s negligence, thus barring his recovery. We affirm.

Considerable evidence was received in that court as to the safety precautions and regulations which are to be employed by the operator and oiler-driver of a crane such as this. Basic among those precautions is the rule that the oiler is never to get on the rig while it is running unless he is clearly directed to do so by the operator, and that he is to stay clear of the rig while it is moving. Further, that the oiler is to stay in view of the operator at all times as the latter is unable to see behind him because of the construction of the crane cab to his rear.

James A. Teague, whose corporation owns the crane, positively testified that his oilers and operators are daily cautioned by him as to these safety measures. Paul Hernandez, Jr., the assistant business manager of Lambert’s union, Operating Engineers Local 406, verified that these rules are stressed and that they are well known by members of the local.

The record in this matter reflects that Lambert was an experienced oiler-driver, having worked around cranes since the late 1950’s. As such, he was undoubtedly familiar with the basic safety precautions previously stated and should never have gotten on the rig without a definite understanding with the operator. Upon doing so, he assumed the risks inherent in that action, which are great. Clearly, anyone climbing on the rig to the rear of the operator and within the turning radius of the counterweight, risks being struck by that object.

It also appears that the plaintiff recognized this and admitted as much to Teague and Padgett. Both testified that while in the hospital and on subsequent jobs after his recovery, Lambert had stated to them that he had been careless and had gotten ahead of the operator. On page 207 of the transcript, we note this testimony by the plaintiff:

“Q. What I want to ask you, is do you remember now that you told him on at least one occasion that you just were not thinking at the time that you got hurt ?
A. I guess I did, I was just trying to do my job as fast as I could, sir. I can’t remember, I told Mr. Teague —that many years ago, I can’t say if I did or not, sir.
Q. You could have told him, you are not going to deny that you told him?
A. I could have, yes, sir.”

As noted in Romano v. Bonstaff, 198 So.2d 499 (La.App. 4th Cir. 1967):

“The primary factor to be considered in determining whether a person was negligent is that person’s own experience in the field of work he was performing at the time he was injured * *

Further, where a person leaves a position of safety and places himself in a position of known danger, as did the plaintiff here, and he is thereafter injured by one of the risks of which he is aware, he has assumed the risk of that danger and is guilty of negligence. Jordan v. Fidelity and Casualty Company of New York, 259 So.2d 442 (La.App. 3rd Cir. 1972) and authorities cited therein.

The witnesses who had knowledge of this incident uniformly testified that the actions of Lambert immediately prior to this accident were dangerous and that he was necessarily aware of that danger. The plaintiff clearly violated a rule of occupational safety of which he had knowledge for years. Such action on his part bars his recovery for the injuries which he sustained in this unfortunate accident.

For the foregoing reasons, the judgment is affirmed at appellant’s cost.

Affirmed.


author: BLANCHE, Judge.

text:
    Milford R. RAYBORN, Sr., et al. v. John D. SMILEY et al.
    No. 10461.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.

      Iddo Pittman, Hammond, for appellants.
    James H. Morrison and Timothy R. Higgins, Hammond, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

The plaintiffs (approximately 130 in number), all residents of Livingston Parish, seek to enjoin the defendants from operating a rendering plant near Satsuma, in Livingston Parish, Louisiana. The defendants are Gulf South Products, Inc., John D. Smiley and Sars of Louisiana, Inc. Before filing the present suit, the plaintiffs were successful in a prior suit in enjoining one of the defendants, Gulf South Products, Inc., d/b/a Modern Rendering Company, from operating the said rendering plant. That judgment also awarded plaintiffs damages as a result of the nuisance.

On appeal, reported at 253 So.2d 664, writs denied, 260 La. 105, 255 So.2d 92 and 260 La. 111, 255 So.2d 94, this Court amended the injunction simply to enjoin Gulf South from “operating its rendering plant in the present manner, which constitutes a nuisance by reason of the emission of objectionable odors,” thereby allowing Gulf South to continue operations but only in a manner so as not to cause a nuisance to the neighboring property owners. The award of damages was affirmed.

After this Court’s judgment in September of 1971 amending the injunction as aforesaid, the injunction was later made permanent by the trial court on June 23, 1972.

This suit was filed by plaintiffs some eight months after the amendment of the injunction by this Court, asserting that the said plant was continuing to emit objectionable odors in spite of the said injunction. Gulf South was the only defendant in the present suit affected by the prior judgment.

Both Gulf South and Smiley filed peremptory exceptions of no right and no cause of action and dilatory exceptions of vagueness and ambiguity. Gulf South also filed an exception of lis pendens based on the prior injunction proceeding. Sars filed a peremptory exception of no cause or right of action and a dilatory exception of vagueness and ambiguity.

On November 22, 1974, judgment was rendered in the instant suit in favor of Smiley and Gulf South “maintaining the exceptions of no cause or right of action filed by defendants John D. Smiley and Gulf South Products, Incorporated and [ordering] that plaintiff’s suit be dismissed at plaintiff’s costs.” Inasmuch as the exceptions granted by the court were all peremptory and resulted in dismissal of plaintiffs’ suit, the court stated that it was unnecessary thereafter to consider the other dilatory exceptions filed by Gulf South and Smiley. No action has been taken by the trial court concerning Sars and, therefore, its exceptions are not before the Court.

From the aforesaid judgment, plaintiffs have appealed.

Plaintiffs merely state in a page and a half memorandum that the exceptions were sustained through error and the appeal is to correct a mistake made and acknowledged by the trial court in its minute entry of December 19, 1974. The background of this argument stems from the fact that plaintiffs’ counsel was not present when judgment was rendered against plaintiffs dismissing plaintiffs’ suit on a peremptory exception of no cause of action. The minute entry of November 22, 1974, the date on which the judgment was purportedly rendered, does not state that any judgment was rendered on said date and only states that the exceptions filed therein were assigned for trial. However, a judgment filed in the record, but not recorded or referred to in the court minutes, states that the judgment sustaining the exception and dismissing plaintiffs’ suit was rendered in open court on November 22, 1974 and signed on November 27, 1974. The minute entry of December 19 which counsel relies on rescinds the “minute entry [not the court’s judgment] maintaining the exceptions” and reassigns them for another hearing on January 24, 1975. This action by the trial court was obviously without any legal effect, as the judgment sustaining the exceptions that was signed on November 27, 1974, had long since become final. Therefore, that judgment is before this Court on appeal and will be decided on its merits, regardless of whether the same was rendered in error.

Plaintiffs’ counsel does not specify that the court erred in granting the exception on the merits but does casually mention in brief that “the suit does state a cause * * * of action against all the defendants.” From this clue we will now proceed to examine plaintiffs’ petition in detail to determine if it states a cause of action against the defendants.

In considering the exception of no cause of action, we note that the following fundamental legal principles have long been established in our law:

“The exception of no cause of action raises only the question of whether, under the allegations of the petition, if true, there are facts which justify recovery; is there a ‘cause’ on which the suit may be based?” (Metoyer v. Sewerage & Water Board of New Orleans, 100 So.2d 792, 795 [La.App.Orl.1958])

Its sole purpose is to test .the sufficiency of facts pleaded. Louisiana Farms Company v. Yazoo & M. V. R. Co., 172 La. 569, 134 So. 747 (1931). The exception admits as true all of the facts alleged. Bouligny v. Gary, 21 La.Ann. 642 (1869).

The petition states that defendant Smiley is the owner of the property (Paragraph 2) and that defendant Sars is the lessee of the property (Paragraph 13) where certain activities are carried on which have caused plaintiffs damage. It is alleged that all of the defendants, including Gulf South, who was named as a defendant in Paragraph 1, both individually and in concert, have engaged in the activity of operating a rendering plant (Paragraph 3). In Paragraph 8 and succeeding paragraphs, plaintiffs state how the operation of the rendering plant has caused them damage. These allegations are all to the effect that defendants are operating the rendering plant which is emitting putrid and sickening odors, which attracts flies and offensive insects, and which also creates a serious health hazard.

Accordingly, defendants’ argument that plaintiffs’ petition fails to allege any activities by defendants which have caused plaintiffs damage is totally without merit. While we have no idea from the petition how the defendants individually and in concert acted to cause such damage, the dilatory exceptions filed by defendants requiring plaintiffs to state how each had so acted would have thrown some light on the subject. However, the court never reached these exceptions, and the fact remains that all of the defendants are charged in the petition with activities which have caused the plaintiffs damage, with the result that a cause of action is stated against each.

The defendant Smiley argues that the plaintiffs seek to have him found to be in contempt of an injunction previously issued by this Court. We have read the prayer of the petition and are unable to find where plaintiffs have sought such relief.

The defendants also state in brief that the defendant Smiley is dead and argue that any judgment against him would be an absolute nullity, citing Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App. 1st Cir. 1969), and appeal after remand, 241 So.2d 301 (La.App. 1st Cir. 1970). We find no evidence of this fact in the record. If, through proper pleadings, the defendants had placed such evidence in the record, the plaintiffs would be given an opportunity to amend their petition so as to include the defendant Smiley’s legal representatives.

For the above reasons, the judgment of the trial court sustaining the peremptory exceptions filed by defendants, John D. Smiley and Gulf South Products, Inc., is reversed and set aside; and the case is hereby remanded to the trial court for further proceedings in accordance with law. All costs of this appeal are to be borne by defendants, with the remaining costs to be assessed in accordance with the final disposition of the case.

Reversed and remanded.