author: BOYER, Chief Judge. RAWLS, Judge

text:
    Joe REDDISH, Appellant, v. STATE of Florida, Appellee.
    No. U-370.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Joe Reddish, in pro per.
    Robert L. Shevin, Atty. Gen., and Donald K Rudser, Asst. Atty. Gen., for appel-lee.
   BOYER, Chief Judge.

Although appellant raises several points on appeal, only one, relating to the volun-tariness of his guilty plea, merits discussion. Appellant was initially tried and convicted of first degree murder and received the death penalty. His conviction was reversed and remanded for a new trial by the Florida Supreme Court. Reddish v. State, Sup.Ct.Fla.1964, 167 So.2d 858. On November 23, 1964, appellant appeared before the trial court with his privately retained counsel and entered guilty pleas to two separate counts of first degree murder and to the charge of shooting into a dwelling. The next day appellant again appeared before the trial court with his counsel and received two life sentences on the murder charges and a 10 year sentence for shooting into a dwelling, all sentences to be served consecutively. The trial court directed certain questions to appellant on November 23 and 24, which were responded to by appellant’s private counsel, appellant himself making no response. Some nine years after entering his pleas, appellant filed a Rule 3.850 motion to vacate and set aside the judgment and sentence which the trial court denied. It is from the denial of that motion that appellant now appeals.

We are of the view that this case is controlled by Rodeheaver v. Wainwright, Fla.App. 1st 1971, 245 So.2d 633, and must be

AFFIRMED.

McCORD, J., concurs.

RAWLS, J., specially concurs.

RAWLS, Judge

(specially concurring).

At first blush it appears that this court’s opinion in Williams v. State, 245 So.2d 267 (Fla.App. 1st 1971), requires remand for an evidentiary hearing where the record, such as in the instant case, does not disclose inquiry by the trial judge as to the voluntariness of a defendant’s plea of guilty. Williams is not applicable. The pleas of guilty here considered were entered by defendant’s privately retained counsel on November 23, 1964, some five years prior to the U.S. Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and at said time Florida had not adopted a “voluntariness” rule. We clearly stated in Williams that:

“In our opinion it would ordinarily be presumed that a member of The Florida Bar always adequately informs his client concerning the nature of the charge pending against him and the consequences of a plea of guilty before allowing such a plea to be entered. We cannot invoke this presumption in the instant case because the Rules of Criminal Procedure provide explicitly that the trial judge shall not accept a plea of guilty without first determining that it is made voluntarily with an understanding of the nature of the charge. Solely because of this rule, after considering prior United States Supreme Court decisions which served as a catalyst for adoption of the rule, we are compelled to remand this cause to the trial court for an evidentia-ry hearing upon the question of whether or not the trial judge made such inquiry as contemplated by said rule.”

The predicate for Williams being absent, we presume that appellant’s trial counsel, a distinguished member of The Florida Bar “adequately inform [ed] his client concerning the nature of the charge pending against him and the consequences of a plea of guilty before allowing such a plea to be entered.” Such presumption is especially true in considering the history of this case, wherein appellant had once entered pleas of not guilty for the identical crimes, was tried and convicted, sentenced to death, and reversed and remanded for a new trial.

      . The predecessor of Florida Rule of Criminal Procedure 3.170(j) was 1.170(a) which was adopted by the Florida Supreme Court in 1967. This rule was patterned after Federal Rule of Criminal Procedure 11.


source: Caselaw Access Project

author: BOYER, Chief Judge.

license: Public Domain

text:
    James BAILEY, Volusia County Tax Assessor and William Scoval, Chairman, Volusia County Board of Tax Adjustment, Appellants, v. PLAZA HOTEL CORPORATION, a Florida Corporation, Appellee.
    No. AA-52.
    District Court of Appeal of Florida, First District.
    July 19, 1976.

      William M. Barr, of Raymond, Wilson, Conway, Barr, Burrows & Abraham, Day-tona Beach, for appellants.
    Byron K. Rothert, of Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for appellee.
   BOYER, Chief Judge.

Plaintiff, appellee here, filed its complaint, alleging that its 1974 ad valorem real property tax assessment was excessive. After plaintiff’s motion for default judgment was entered by the Circuit Court Clerk, defendants, appellants here, filed a sworn motion to vacate default. The trial court entered final judgment in favor of plaintiff, thereby denying defendants’ motion to vacate default and further ordering the Volusia County Board of Tax Adjustment to reconvene and reassess the valuation of plaintiff’s property. Defendants have appealed, arguing that their motion to vacate default should have been granted, that the final judgment was improperly entered in the absence of supporting evidence, and that, in any event, the trial court was without subject matter jurisdiction to render final judgment.

The principles relative to entry of defaults and vacation thereof are recited in this Court’s opinion in Metcalf v. Langston, Fla.App.1st, 1974, 296 So.2d 81, cert. dism., Sup.Ct.Fla., 302 So.2d 414, and no useful purpose will be served by recitation here. Suffice to say that our examination of the record convinces us that the learned trial judge did not abuse his discretion in denying appellants’ motion to vacate the default entered against them. (See North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla. 1962, 143 So.2d 849, 852)

We also find that the trial court had subject matter jurisdiction. (See Maccabee Investments, Inc. v. Markham, Fla.App.4th, 1975, 311 So.2d 718).

Finally, we hold that under the peculiar facts of this particular case there was no error in ordering a de novo hearing before the Board of Tax Adjustment, since it is that body which is responsible for hearing petitions relating to assessments. (See F.S. 194.032)

We do not here consider the merits of appellee’s case. We only hold that the final judgment here appealed should be, and is

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: PER CURIAM.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation, Appellant, v. NORTH AMERICAN STEEL CORPORATION, a Florida Corporation, Appellee.
    No. 74-1436.
    District Court of Appeal of Florida, Second District.
    July 7, 1976.

      Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellant.
    Kingswood Sprott, Jr., Lakeland, for ap-pellee.
   PER CURIAM.

We have for review a final judgment rendered for the appellee, North American Steel Corporation (NASCO), against the appellant, United States Fidelity and Guaranty Company (USF&G), on a performance bond.

USF&G executed a performance bond in which Lurgi-Knost, Inc. was principal and USF&G was surety. Homer Knost Construction Company, Inc. entered into a contract with the Orlando Utilities Commission to construct a certain plant owned by the Commission. The Commission was created by a special act of the legislature which defined it as being a part of the government of the City of Orlando. Homer Knost Construction Company was in the process of liquidation and dissolution and their contract with the Commission was assigned to Lurgi. Lurgi became insolvent, went into bankruptcy and failed to complete its contract with the Commission.

The performance bond provided that if Lurgi:

“[Sjhall fail to pay all just claims and demands by, or in behalf of, any employee or other person, or any firm, association, or corporation, for labor performed or materials, supplies, or equipment furnished, used, or consumed by the Assignee-Contractor or its sub-contractors in the performance of the work, then the surety will pay the full value of all such claims or demands in any total amount not exceeding the amount of this obligation, together with interest as provided by law.”

NASCO contracted with Lurgi to furnish, fabricate and deliver certain steel piping systems for the construction project of the Commission.

NASCO filed its complaint for damages against USF&G on the performance bond alleging that it had fulfilled its contract with Lurgi and certain sums due under the contract remained unpaid and Lurgi had failed and refused to pay the balance due.

USF&G filed a motion to dismiss, motion for more definite statement or compulsory amendment, and motion for change of venue. The motion to dismiss was based, among other things, on the fact that the complaint on its face showed that the contract for which the performance bond was posted was for the construction of a public building and that the action was barred by the one-year limitation set forth in § 255.05, Fla.Stat.

The trial court specifically held that the bond was not a statutory bond under the statute but was a common law bond. This holding was based on the decision in United Bonding Insurance Company v. City of Holly Hill, Fla.App.1st 1971, 249 So.2d 720. We affirm the trial court in its decision on this question and the denial of the motion.

The motion for more definite statement or compulsory amendment and the motion for change of venue were also denied by the trial court and we affirm the trial court in its denial of those motions.

After final hearing the trial court entered the final judgment appealed, holding that it was without dispute that all of the fabricated pipe furnished by NASCO was eventually accepted and installed in the project. The trial court further held that with the exception of one shipment, 93% of the purchase order (contract) had been filled and delivered to the project at least 30 days prior to any rejection by Lurgi and entered final judgment for NASCO in the sum of $55,838.93.

USF&G had filed an answer and counterclaim alleging that the pipe fabricated by NASCO under the contract was defective, inadequate and unacceptable in that the fabricated pipe furnished by NAS-CO had defective welds. Many of the defects were said to be latent as they could not be discovered except upon X ray. USF&G contended that it spent large sums of money in correcting the defective piping. To the extent of any payments properly made by USF&G to correct defects in NASCO’s piping, USF&G is subrogated to the rights and remedies of its principal, Lurgi. The fact that Lurgi went into bankruptcy does not preclude USF&G from asserting its subrogated rights and remedies of Lurgi under the contract, as the trustee in bankruptcy rejected any rights under Lurgi’s contract with the Commission.

The contract between NASCO and Lur-gi provided that the piping systems fabricated by NASCO would be in complete accordance with the plans and specifications as prepared by Black & Veatch, the consulting engineers for the Commission. There was substantial evidence that the fabricated piping systems were not in accordance with the plans and specifications prepared by Black & Veatch. Paragraph 7 of the contract provided:

“All materials supplied on this order shall be subject to Purchasers Inspection at any reasonable time before or during manufacture and within 30 days after delivery to Destination. Materials other than those specified shall not be supplied without Purchaser’s approval. Rejected materials will be returned at Vendor’s Expense, including all transportation charges paid by Purchaser.”

The contract provided under paragraph 8 that:

“Vendor guarantees the workmanship and material entering into the items supplied on this order and agrees to replace or repair, without cost to Purchaser, any item on which defective workmanship or materials is found, provided claim is made within one year from Date of Shipment.”

Approximately a week prior to trial and subsequent to pretrial conference, NASCO took the position that the Uniform Commercial Code was applicable in that Lurgi was obligated to inspect and accept or reject the work of NASCO within 30 days and that Lurgi, by not having rejected the pipe within 30 days, made the surety absolutely obligated to pay NASCO for the pipe irrespective of any defects in the pipe or any breach of warranty as to the workmanship in fabricating the pipe: e. g., defective welds.

We cannot determine from the final judgment or the record on appeal whether or not the trial court applied the UCC or paragraph 7 of the contract quoted above. In either event, the trial court specifically held that the failure of Lurgi to reject the pipe within 30 days from delivery made it liable for the 93% of the pipe delivered.

NASCO contends that the fabricated pipes are goods defined in Fla.Stat § 672.105 and that under Fla.Stat. § 672.-606(1) (b) Lurgi failed to make an effective rejection of the goods within a reasonable time after it had an opportunity to inspect them. Referring to Fla.Stat. § 671.-204, NASCO suggests that the 30-day period specified in paragraph 7 constituted a reasonable time which was “fixed by agreement” of the parties. Since the predominate nature of the transaction was the furnishing of a product rather than services, we believe that the fabricated pipe could properly be characterized as goods within the meaning of Fla.Stat. § 672.105. Nevertheless, even if it be conceded that the 30-day period was the specified reasonable length of time to reject the goods under Fla.Stat. § 672.606(1)(b), Lurgi’s failure to do so did not leave it without a defense against NASCO’s claim.

The pertinent statutes read as follows:

“672.606 What constitutes acceptance of goods
(1) Acceptance of goods occurs when the buyer:
(b) Fails to make an effective rejection (§ 672.602(1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or .
“672.607 Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over
(3) Where a tender has been accepted:
(a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and
“672.714 Buyer’s damages for breach in regard to accepted goods
(1) Where the buyer has accepted goods and given notification (§ 672.-607(3)) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case any incidental and consequential damages under the next section may also be recovered.”
“672.717 Deduction of damages from the price
The buyer on notifying the seller of his intention to do so may deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract.”

In discussing the right of rejection and the concomitant right of revocation of acceptance provided by Fla.Stat. § 672.608, White and Summers, Uniform Commercial Code § 8-1, states:

“At the outset one should understand the significance of a self-help remedy which permits the buyer to return the goods to the seller, (that is, rejection or revocation of acceptance). In such cases the buyer is freed from his obligation to pay the price, and he has a right to recover that part of the price he has already paid. Moreover, except in unusual circumstances, he need not undertake to resell the goods. One should understand the economic difference between the status of the buyer who has rejected and the status of the buyer who has accepted and sued for breach of warranty. The typical buyer who accepts and sues for breach of warranty under 2-714 will recover only for injury proximately resulting from defects in the goods at the time of sale . . . On the other hand, if buyer rejects the goods, he is first recompensed for the injuries resulting from the seller’s failure to perform his end of the contract . . . more important, he escapes the bargain, and he throws any loss resulting from depreciation of the goods back upon the seller. ...”

Thus, it is evident that while the failure to reject goods may affect the amount of damages a buyer can recover, it does not preclude him from making a claim for breach of warranty. On this point White and Summers, Uniform Commercial Code, supra, states “absent an explicit contract term so providing, acceptance does not foreclose buyer’s suit for breach of warranty.” A contractual provision permitting the buyer to have thirty days within which to inspect and reject the delivery of materials cannot be construed to be such a term.

Following the acceptance of a tender under Fla.Stat. § 672.607(3) (a), the buyer is required to notify the seller of a breach within a reasonable time after he discovers or should have discovered it. However, Fla.Stat. § 671.204 provides that whenever the Code requires action within a reasonable time, any time which is not manifestly unreasonable may be fixed by agreement. In the contract NASCO guaranteed the workmanship and material on any defective items provided claim was made within one year from the date of shipment. Thus, the parties themselves determined the length of time within which Lurgi would have to “notify the seller of breach.” Since Lurgi made its claims well within the one-year period, the court should have considered the question of whether the pipe was defective.

Therefore, we hold that the trial court erred in holding USF&G absolutely liable for 93% of the purchase order by reason of Lurgi’s failure to reject the pipe within 30 days from delivery. This cause is reversed and remanded for a new trial in which USF&G will be accorded all rights and remedies Lurgi had against NASCO under its contract, either by way of defenses or claims for damages.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.

      . Travelers Indemnity Company v. Evans Pipe Company, 6th Cir. 1970, 432 F.2d 211, and St. Paul Fire & Marine Insurance Company v. United States, 5th Cir. 1967, 370 F.2d 870.

      . Stauduhar v. Limbach Company, 308 F. Supp. 696 (1970).


author: SMITH, Judge.

text:
    Charles L. RIVENBARK, Appellant, v. Norine Deep RIVENBARK, Appellee.
    No. Z-496.
    District Court of Appeal of Florida, First District.
    July 15, 1976.

      Robert A. Mick, of Henry & Buchanan, Tallahassee, for appellant.
    Herbert T. Schwartz, of Schwartz & Dearing, Gainesville, for appellee.
   SMITH, Judge.

The circuit court in Alachua County, the place of the wife’s residence, declined to dismiss or transfer her marriage dissolur tion petition for improper venue. The husband urges on interlocutory appeal that his residence was in Gadsden County when she filed her petition; that the marriage was last intact and was broken in Bainbridge, Georgia, so that the cause of action did not arise in any Florida county; and therefore that the wife was not privileged to file her petition anywhere in Florida other than in Gadsden County, the place of his residence. Sec. 47.011, F.S. 1975; Carroll v. Carroll, 322 So.2d 53 (Fla.App.1st, 1975).

The wife left her husband and marital home in Bainbridge and moved to Gaines-ville, Alachua County, Florida. There, while satisfying Florida’s six-month residency prerequisite for filing a dissolution petition (§ 61.021, F.S. 1975), she petitioned the circuit court to establish her custody of the parties’ minor son and to fix the husband’s responsibility for the child’s financial support. Sec. 61.10, F.S. 1975. In the meantime, the husband moved from Bainbridge to Havana, Gadsden County, Florida.

Though it does not appear the husband objected to the wife’s selection of Alachua County as the venue of her custody and support petition unconnected with dissolution, we recognized in Carroll the propriety of her choice. The child was with her in Gainesville. Carroll v. Carroll, 322 So.2d at 54 n. 1; Dones v. Green, 212 So.2d 919 (Fla.App.3d, 1968). When in time the wife’s residency requirement was satisfied, she petitioned in Alachua County for dissolution of marriage, and the circuit court consolidated that proceeding with the still-pending custody action.

The trial court sustained venue of the dissolution petition in Alachua County on a showing that the husband rented and furnished an apartment in Gainesville, where he came for psychiatric counseling at the veterans’ hospital and to seek reconciliation with his wife and companionship with his son, and that the wife had intercourse with him one afternoon at the apartment “in response to the Husband’s attempted reconciliation of the marriage.”

The husband’s unilateral desire for reconciliation, never acquiesced in by the wife, and the parties’ isolated sexual encounter at the Gainesville apartment are hardly proof of “a continuing union of partners who intended to remain [in Gainesville] and to remain married, indefinitely if not permanently.” Carroll v. Carroll, 322 So.2d at 57. Cf. Smith v. Smith, 322 So.2d 580 (Fla.App.2d, 1975). This marriage was broken in Bainbridge, Georgia. There being no substantial competent evidence to support the wife’s contention and the trial court’s finding that the cause of action arose in Alachua County, the husband is entitled to insist on his statutory privilege to be sued in the county of his residence, Gadsden County.

The circuit court in Alachua County has a prior and proper claim on the issues, raised now by both the custody and dissolution petitions, concerning custody and support of the parties’ minor son. Alachua County was previously and is still the proper venue for resolution of those issues. It would be an anomaly if the subsequent filing and necessary transfer of the dissolution petition should be held to detach the custody and support issues from Alachua County, where they arose and have been litigated. Irrespective, then, of whether the husband insists on his venue privilege when this cause is remanded, the petition for custody and support adjudication unconnected with dissolution will remain in Alachua County for disposition there, and insofar as its issues are also raised by the dissolution petition which is transferable to Gadsden County, the dissolution proceeding will abate in deference to the prior pending action. See Cicero v. Paradis, 184 So.2d 212 (Fla.App.2d, 1966); Oyama v. Oyama, 138 Fla. 422, 189 So. 418 (1939).

REVERSED.

BOYER, C. J., and McCORD, J., concur.


text:
    Leonard RUMSEY et al., Appellants, v. Michael M. MANNING and Vivian L. Manning, his wife, Appellees.
    No. 75-788.
    District Court of Appeal of Florida, Second District.
    July 7, 1976.
    Michael N. Brown, of Allen, Dell, Frank & Trinkle, Tampa, for appellants.
    W. DeHart Ayala, Jr., of Few & Ayala, Tampa, for appellee Vivian L. Manning.
   PER CURIAM.

This is an appeal from a judgment entered upon a jury award of $60,000 for loss of consortium.

The appellee, Michael M. Manning, was injured in an automobile accident on September 29, 1972. Mr. Manning, joined by his wife, brought suit against appellants to recover damages. The appellants admitted liability. Prior to the trial Mr. Manning withdrew his claim for loss of earnings and loss of earning capacity. The jury returned a verdict in favor of Mr. Manning for $10,000 and in favor of Mrs. Manning for $60,000. The appellants satisfied Mr. Manning’s judgment, but they have appealed from the judgment for Mrs. Manning.

Mrs. Manning operated a beekeeping business. Mr. Manning assisted her in this work. Mr. Manning suffered a permanent injury to a nerve in his left arm as a result of the accident. As a consequence he could no longer effectively assist Mrs. Manning in much of the manual and heavy lifting labor involved in the beekeeping business. She did not hire anyone to take his place. The primary thrust of Mrs. Manning’s claim in this suit was for the loss of her husband’s services in her business.

The right of a person to seek damages for the loss of the services of his or her spouse is not limited to those services which customarily arise out of the marriage relationship. In Lithgow v. Hamilton, Fla.1954, 69 So.2d 776, the supreme court said that among the lost services of his wife that a husband was entitled to recover in a wrongful death action was “any special service which the wife was accustomed to perform for the husband in the household, and in his business without compensation, which will have to be replaced by hired services.” More recently, the district court of appeal in Leaseco, Inc. v. Barlett, Fla.App. 4th, 1971, 257 So.2d 629, held that evidence of a deceased’s wife’s earnings outside of the household was properly admissible in a husband’s wrongful death action. So long as there is no double recovery, we see no impediment to the recovery of the reasonable value of services customarily performed without compensation by one spouse in the other’s business which are lost by reason of injuries suffered in an accident caused by a third party. In this case, since Mr. Manning waived any claim for loss of earnings and loss of earning capacity, there was no possibility of a double recovery by Mrs. Manning. Cf., Kotsiris v. Ling, Ky.App.1970, 451 S.W.2d 411.

On the other hand, we believe the court erred in permitting, over appellant’s objection, several beekeeping experts to testify concerning the reasonable value of the services of an expert beekeeper. The evidence reflected that the only services lost to Mrs. Manning by reason of her husband’s injury were those of a manual nature. Thus, Mrs. Manning testified:

Q Okay. Could you tell me what he is able to do now ?
A He is unable to lift the big supers full of honey, and he is unable to lift the hives when they have to be moved. He tries to make the tops and bottoms, but he can’t do that, he can’t nail up supers, and he can’t nail the frames, due to the fact that his hand just won’t hold onto the frames and supers and things that you have to work with in order to make the equipment.

Mrs. Manning was a professional beekeeper and continued to operate the business. To the extent that Mr. Manning was also a professional beekeeper, his services in that capacity were not impaired by the accident. We point out that there was no testimony introduced with respect to the reasonable value of Mr. Manning’s manual services which were lost to Mrs. Manning. The testimony ranging from $12,000 to $35,000 per year as being the reasonable value of the services of an expert beekeeper contained the seeds of prejudice to appellants. Our supreme court in Atlantic Coast Line R. Co. v. Campbell, 1932, 104 Fla. 274, 139 So. 886, said:

The chief object in introducing evidence is to secure a rational ascertainment of facts; therefore facts should not be submitted to the jury, unless they are logically relevant to the issues. A fact in a cause must be both logically and legally relevant, for even logical relevancy does not in all cases render proposed evidence admissible. A fact which, in connection with other facts, renders probable the existence of a fact in issue, should still be rejected, where, under the circumstances of the case, it is essentially misleading or too remote.

In addition, we believe the court erred in refusing to permit the appellants to introduce into evidence the Mannings’ income tax returns for the years 1971, 1972, 1973, and 1974. These returns reflected that in 1971 the Mannings had a net farm loss of $732.46; in 1972 a net farm profit of $1,311.80; in 1973 a net farm profit of $1,686.74; and in 1974 a net farm profit of $3,547.50. Thus, it appears that the beekeeping business fared better after Mr. Manning’s injury. Admittedly, other factors may have caused the profits to go up, but the introduction of the tax returns would have provided appellants with a credible argument that the value of Mr. Manning’s services, whether before or after the accident, never approached the amounts being claimed. While the refusal to permit the introduction of these returns might not have been sufficiently harmful to warrant reversal, standing alone, such a ruling tended to compound the adverse effect of admitting the testimony of the value of the services of an expert beekeeper when these were not the services which were lost.

The judgment for Mrs. Manning is reversed, and the case is remanded for a new trial on her damages.

REVERSED and REMANDED.

BOARDMAN, A. C. J., GRIMES, J. and STOKES, ROBERT G., Associate Judge, concur.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Wilbur J. LELEAUX.
    No. 58283.
    Supreme Court of Louisiana.
    July 6, 1976.
   In re: State of Louisiana applying for writs of certiorari, mandamus, prohibition and stay order (Calcasieu Parish). Writ granted. Ruling of trial judge disallowing in part the State’s motion to amend the indictment is reversed. It is ordered that the State be allowed to amend the indictment as requested. Defendant’s right to raise the issue on appeal in the event of conviction by a proper assignment is reserved.

SUMMERS, J.,

is of the opinion that the amendment proposed by the District Attorney should be allowed but that the decision of the court on this issue should be final.


author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Ray Anthony SPEED.
    No. 57523.
    Supreme Court of Louisiana.
    June 30, 1976.
    Dissenting Opinion July 28, 1976.

      Jerome T. Powell, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pegues, III, Dist. Atty., William E. Tilley, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

On September 18, 1974 the grand jury of Vernon Parish charged Ray Anthony Speed with aggravated rape on May 18, 1974. La.R.S. 14:42. In a trial by jury, he was found guilty as charged. On April 14, 1975 he was sentenced by the trial judge “to spend the remainder of his natural life in the Louisiana Department of Corrections, subject to such commutation as law may provide.”

The defendant’s brief concedes that his defense was based solely on alibi. The de-' fendant contends that at the time of the offense he was some distance away in Leesville in the company of one Leroy Zeno, his sister Joyce, and her husband.

No errors were assigned to the conduct of the proceedings during the trial as required by Articles 841-44 of the Code of Criminal Procedure. Nevertheless, in brief the argument is made that the alibi was proven and the verdict was “apparently contrary to the evidence.” A discussion of the evidence is then undertaken.

Because no motion for a new trial was made in accordance with Article 851 of the Code of Criminal Procedure the question whether there was any evidence at all to support the essential elements of the crime was never presented to the trial judge. For the same reason this Court cannot technically review the evidence on that basis. La.C.Cr.P. art. 920; State v. Shillow, 310 So.2d 103 (La.1975). (If we could review the evidence, it is sufticient to state that there is some evidence upon which the jury could conclude that every element of the crime of aggravated rape had been proven. The sufficiency of the evidence is a matter for the jury’s determination. State v. Douglas, 278 So.2d 485 (La.1973).)

The defense brief further asserts that the constitutional rights of the defendant were violated in that the jury venire “was almost totally white”, that is, only one black served on the jury that convicted him. The defense did not file a motion to quash to challenge either the general ve-nire or petit jury venire as required by Article 532 of the Code of Criminal Procedure. See also La.C.Cr.P. art. 419. Thus there is no evidence in the record upon which these defense contentions could be founded; the trial court was never called upon to rule on the question, and no assignments of error are presented.

In the absence of a prima facie showing of systematic exclusion of a segment of the population from the jury, the burden does not shift to the state to demonstrate proper procedure or lack of discrimination. State v. Brown, 319 So.2d 409 (La.1975).

The review of this record on appeal for errors discoverable by an inspection of the pleadings and proceedings (La. C.Cr.P. art. 920) discloses no error of which the defendant can complain upon his appeal.

In brief, the state points out that the defendant was sentenced to life imprisonment, whereas the mandatory statutory penalty is death for the crime of aggravated rape. La.R.S. 14:42. However, this contention raised by the state’s brief is not before us upon this appeal by the defendant to have the conviction and sentence reviewed for prejudicial error affecting him. La.C.Cr.P. art. 911. The remedy for correction of the sentence, if illegal, is specifically provided by La.C.Cr.P. art. 882(1).

We note that, at the time of sentencing, the state did not object to imposition of the life sentence, nor has it ever made complaint in the trial court of the alleged illegality of the life sentence imposed. The state should present any contention of illegality to the trial court, with the trial court’s determination being reviewable by supervisory writs to this court. La.C.Cr.P. art. 882(2).

In sentencing the accused to life imprisonment, the trial court may have concluded that the death penalty was excessive punishment for the crime charged under the circumstances. See La.Const. of 1974, Art. 1, Section 20; State v. Bryant, 325 So.2d 255, 265 (La.1976) (concurring opinion). We express no opinion at this time as to the propriety of the action.

Accordingly, for the reasons assigned, we affirm the conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

SANDERS, C. J., concurs in part and dissents in part with written reasons.

SUMMERS, J., dissents and assigns written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction. I am of the opinion, however, that the illegal sentence should be vacated and the case remanded to the trial court with instructions to the judge to impose the mandatory death sentence required by statute.

For the reasons assigned, I concur in part and dissent in part.

SUMMERS, Justice

(dissenting).

Punishment for crimes is a matter for the Legislature. Trial judges must obey legislative enactments on that subject. The trial judge here, unless the statute prescribing the punishment had been declared unconstitutional, should have imposed the prescribed penalty, which at the time was the death penalty. The case should be remanded mandating compliance.

I respectfully dissent.


author: TATE, Justice. DENNIS, Justice SUMMERS, Justice

text:
    Mark D. DUFFY, Plaintiff-Appellee-Relator, v. George E. THROWBRIDGE and Allstate Insurance Company, Defendants-Appellants-Respondents.
    No. 57900.
    Supreme Court of Louisiana.
    June 30, 1976.
    Dissenting Opinion July 28, 1976.

      Felicien P. Lozes, Drury, Lozes & Curry, New Orleans, for defendants-respondents.
    Steven R. Plotkin, New Orleans, for plaintiff-applicant.
   TATE, Justice.

We granted certiorari, 327 So.2d 649 (1976), primarily to review whether a party has the right to oral argument when a case is “reargubd” in the court of appeal, when so required by Article 5, Section 8(B) of the Constitution of 1974:

Section 8(B) provides:

“A majority of the judges sitting in a case must concur to render judgment. However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.” (Italics ours.)

The plaintiff sues to recover damages for personal injuries resulting from an accident. The trial court awarded him damages in the amount of $42,030.96 ($40,-000 general damages, $2,030.96 special damages).

The defendants appealed to the Court of Appeal, Fourth Circuit, where a panel of three judges received briefs and heard oral arguments. Thereafter the three-judge panel issued its order of December 19, 1975, which set forth:

“A majority of the judges on the panel which heard the above case have concluded the judgment appealed from should be modified, however disagreement exists as to the extent of the modification.
“It is ordered that the above entitled and numbered case be reargued, on briefs only, before a panel of five judges of this court. If they desire to do so, the parties may submit additional briefs no,t later than January 6, 1976.” (Italics ours.)

In keeping with the quoted order, both the plaintiff and the defendants submitted additional briefs to the five-judge panel. No objection was made by the plaintiff to the provision of the order confining the reargument to “briefs only”, and no request was made to argue orally.

On February 10, 1976 the court’s opinion was handed down. 327 So.2d 649 (La.App. 4th Cir. 1976). Three judges subscribed to the reasons assigned and two judges dissented. The judgment reduced the amount of the trial court award to $12,030.96, by reducing the general damages awarded from forty thousand dollars to ten thousand dollars.

The plaintiff applied to this court for certiorari. In addition to contesting the reduction of the award (Issue no. 1), the plaintiff’s application for certiorari complained that the order of December 19, 1975 deprived him of the right to oral argument guaranteed by Article 5, Section 8(B), Louisiana Constitution of 1974 (Issue no. 2).

We granted certiorari primarily to determine the latter issue (Issue no. 2). See our writ grant of May 11, 1976, 332 So.2d 280.

With regard to that issue, however, a majority of this court has determined that the plaintiff effectively waived his right, if any, to oral argument. He complied with the court’s order of December 19, 1976 without asserting the right in accordance with Section 8(B). It is too late after an unfavorable judgment has been rendered against him for the plaintiff to claim a right that he could have, but failed to, claimed before unfavorable judgment.

For purposes of affording guidance to appellate practice in this state, we had hoped to make an authoritative interpretation of the requirements of Article 5, Section 8(B), with regard to the right, if any, of oral re-argument in cases governed by that constitutional provision. We are unable to do so because of a division in the views of this court as to an issue we do not reach.

However, for purposes of guidance until an authoritative interpretation is reached, we think it is fair to summarize the court’s views as follows :

Three members of the court are of the opinion that the constitution envisages a right to oral argument on the reargument of the case, when such is required by Section 8(B). Three members of the court are of the opinion that the “reargument” required by the section is only in the sense of permitting an opportunity for either (or both) written or oral argument, in the sense of permitting the party to provide for the court reasons for or against the matter at issue for purposes of persuading the appellate court (see 4 Words & Phrases, verbo “argue” and “argument”, p. 16 (1969); Black’s Law Dictionary, verbo “argument”, p. 137 (4th ed. 1951); Webster’s Third New International Dictionary, verbo “argue” and “argument”, pp. 116-17 (1961); The American Heritage Dictionary, verbo “argue”, p. 70 (1969)).

The other member of the court is of the view that the “reargument” required is to the same extent as the party was afforded at the time of the original hearing of the appeal. In this case, the parties were afforded oral argument at such original hearing.

Therefore, although a majority of this court believes that the plaintiff waived his right to oral presentation on the present “reargument”, a majority likewise believes that, at least where the parties were afforded oral argument at the original hearing, they are entitled, if they claim it, to oral presentation when reargument of an appeal is required by Article 5, Section 8(B).

Although we requested argument only as to Issue No. 2 at the time certi-orari was granted, our grant of certiorari was not at that time restricted. Therefore, Issue No. 1 may be considered by us. La. Const, of 1974, Article 5, Section 5(F).

Nevertheless, we 'have determined to rescind certiorari as improvidently granted as to that issue.

After reviewing the evidence, a majority of the court of appeal determined that the preponderance of the evidence, even accepting the trier of fact’s credibility evaluations, proved a relatively minor injury (a cervical sprain), with permanent residual of non-acute but persistent symptoms resulting from the minor aggravation of a pre-existing condition. The approach of the appellate court did not result from its arbitrary re-appreciation of the facts nor from its arbitrary substitution of appellate judgment for the much-discretion of the trier of fact in awarding general damages; but rather from factual review within accepted limits of appellate propriety, see e. g., Dinvaut v. Phoenix of Hartford Insurance Co., 302 So.2d 294 (La.1974).

We see no reason therefore to exercise our supervisory review with regard to Issue No. 1 and, accordingly, we rescind our grant of certiorari as improvident; for except for our interest in determining Issue No. 2 relative to rearguments in the court of appeal, we would have denied certiorari.

For the reasons assigned, we rescind our grant of supervisory writs and reinstate the judgment of the court of 'appeal.

WRIT OF CERTIORARI RESCINDED.

SUMMERS, J., dissents and assigns reasons.

DIXON, J., dissents, believing there was no waiver of the right to argue orally, but otherwise concurs.

MARCUES, J., concurs.

DENNIS, J., concurs in part and dissents in part.

DENNIS, Justice

(concurring in part, and dissenting in part).

I agree with the members of the Court who are of the opinion that the word “re-argued” set forth in Article V, § 8(B), La. Constitution of 1974, does not necessarily require oral .argument. However, I believe that appellant should have been afforded the right to oral argument before a panel of five judges in this case, because, in my opinion, Article V, § 8(B), La.Constitution of 1974 is designed to require reconsideration of the case, as fully as on original hearing, but before a larger panel of the court of appeal. Since the appellant was afforded oral argument before the initial panel, he should have been given an opportunity to orally argue his case before the five-member panel.

I respectfully dissent from the majority’s conclusion that the plaintiff effectively waived his right to oral argument by complying with the court of appeal’s order of December 19, 1975. The plaintiff should not be penalized for complying with a lower court order which a majority of the Court has found to be unconstitutional. Instead, we should reverse the court of appeal judgment and remand the case for further proceedings in accordance with the correct constitutional principles.

SUMMERS, Justice

(concurring in part and dissenting in part).

I am of the opinion that plaintiff correctly contends that when Section 8(B) of Article V of the Constitution of 1974 directs that the. case shall be “reargued” it contemplates that the parties should be permitted to present oral arguments and briefs to. the larger panel of judges. In its most usual, general and popular use the word “reargued”, in this context, means a reconsideration with the benefit of additional briefs and additional oral arguments.

The briefs and oral arguments are, of course, principally designed for the benefit of the reconstituted court, including as it did in this case two judges who had not had the benefit of oral argument.

This does not mean, however, that the parties are compelled to argue orally unless required to do so by the court. They may waive the right. In this case, plaintiff effectively waived his right to oral argument by complying with the court’s order of December 19, 1975 without asserting the right in accordance with Section 8 (B). It is too late after an unfavorable judgment has been rendered against him for plaintiff to claim a right he had ample time to exercise at the proper time.


text:
    STATE of Louisiana v. Steven F. BRADLEY.
    No. 58327.
    Supreme Court of Louisiana.
    July 16, 1976.
   In re: Steven F. Bradley applying for writs of certiorari, mandamus and stay order.

Writ granted in part.

The trial court is ordered to permit relator to file motion to quash (grounded on allegations that the offense charged is not punishable under valid statute) prior to commencement of trial. Art. 535A(1) La. C.Cr.Pr.

Writ denied as to other relief requested.


text:
    STATE of Louisiana v. Kenneth CLAVO.
    No. 58328.
    Supreme Court of Louisiana.
    July 20, 1976.
   In re: Kenneth Clavo applying for writs of certiorari, mandamus and stay order.

Writ granted with stay order. Case assigned for oral argument at 10:00 a. m. on Saturday, July 24,1976.


text:
    STATE of Louisiana v. Charles FINLEY.
    No. 58337.
    Supreme Court of Louisiana.
    July 20, 1976.
   In re: State of Louisiana applying for writs of mandamus, certiorari, and prohibition.

Writ granted with stay order. Case assigned for oral argument at 10:00 a. m. on Saturday, July 24, 1976.


author: PAVY, Judge.

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee, v. Leonard GUILLORY, Jr., Defendant-Appellant.
    No. 5503.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    J. Harold Fontenot, Opelousas, for defendant-appellant.
    Fusilier, Pucheu & Soileau by J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

In this case, plaintiff-appellee proceeded to foreclose by executory process. Defendant-appellant sued out a rule nisi to obtain a preliminary injunction prohibiting the sale. This application was denied and the rule dismissed. On the same day as the dismissal, the property was sold under the order of seizure and sale. Defendant appealed devolutively from the judgment dismissing his proceeding for the preliminary injunction. After oral arguments, we have noticed the mootness of the appeal and must dismiss it.

In State ex rel. Guste v. Louisiana Milk Commission et al., 297 So.2d 750 (La.App. 1st Cir. 1974) the court stated:

“Articles 2161 and 2162 of the Louisiana Code of Civil Procedure gives certain reasons for dismissing appeals. Article 2161 deals with dismissals because of any irregularity, error, or defect unless it is imputable to the appellant. Article 2162, however, provides as follows :
‘An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if under the rules of the appellate court, the appeal has been abandoned.
If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe. If an appeal is transferred to the supreme court in error, the supreme court may transfer of retransfer it to the proper court.’
The first paragraph of this article provides that “An appeal can be dismissed . because there is no right to appeal . . . ” The record clearly shows that the thing sought to be enjoined by the petitioners herein was the ruling of the Commission dated August 10, 1973. Since the rendition of the judgment below, a new ruling revising Section 2 was adopted by the Commission on November 12, 1973, and so the ruling sought to be enjoined is no longer effective.
In Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972) the Supreme Court refused to review a case where only injunctive relief was sought when the needs for that relief ceased to be a justiciable issue. In Edwards v. Hayes et al, 203 La. 433, 14 So.2d 48 the Supreme Court also refused to consider an appeal on issues that had become moot.
In Walsh v. Forslund, 4 La.App. 47 (1926.) the Court held that where nothing is left to be enjoined at the time of decision on appeal, the appeal must be dismissed. In Moncla v. City of Lafayette, La.App., 226 So.2d 572 (1969) the Court held that an appeal from a judgment declaring an ordinance null was moot where ordinance had been superseded. In Behler v. La. State Racing Commission, 251 La. 959, 207 So.2d 758 (1968) the Supreme Court held that the reviewing court has the right ex-proprio motu to consider the possibility that the case has become moot. Other cases which are germane to the point at issue are Lemann v. Kogos, La.App., 273 So. 2d 63; Blanchard v. City of Shreveport, La.App., 90 So.2d 556; Ripp v. Perrault, La.App., 39 So.2d 362; Elliot v. Amite Building & Loan Association, La.App., 179 So.2d 318; Chisholm v. Hinson, 5 La.App. 334; Evangeline Downs v. PariMutuel, La.App., 191 So.2d 358; State ex rel. Jackson v. Madden, 225 La. 786, 74 So.2d 29; Lasseigne v. Martin, 250 La. 1081, 202 So.2d 257.”

In Walters v. Childers, 214 La. 531, 38 So.2d 160 (1948) a devolutive appeal was taken from a judgment denying a preliminary injunction to restrain the sale of certain mortgaged property under executory process. The court stated:

“ ‘It is apparent, at the outset, that the issue presented by this appeal is moot. The appeal is from a judgment on a rule nisi refusing the issuance of a preliminary injunction to restrain the sale of the property. Since the sale is an accomplished fact, there is no order or judgment this court could render to grant appellant the relief she seeks or undo that which has already been done.
******
It was suggested during the oral argument that the entire case [is] not moot-inasmuch as appellant has the right to have the validity of the mortgage note determined. This may be true, but that question can be decided on a trial of the case on its merits. It cannot be disposed of on this devolutive appeal concerning the sole issue of whether the trial judge properly refused the preliminary injunction, which issue has become moot ‘due to the fact that the property has already been sold.’ . . . .”

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: LEMMON, Judge. GULOTTA, Judge BEER, Judge BEER, Judge

text:
    William H. REBMAN and Gertrude Gardner, Inc. v. C. Espy REED.
    No. 6945.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Concurring Opinion On Denial of Rehearing July 29, 1976.
    Writ Refused Oct. 27, 1976.

      Polack, Rosenberg & Rittenberg, Leon H. Rittenberg, Jr., New Orleans, for plaintiff s-appellants.
    Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

In this suit for damages based on the alleged breach of a written contract to sell immovable property, the principal issue is whether a contract was struck which was binding on the seller. On September 20, 1970 William Rebman, the prospective purchaser, signed a standard form offer to purchase the property, and on September 21 Mrs. Gertrude Gardner, a real estate broker, accepted as agent for C. Espy Reed, the owner. When Reed repudiated the agent’s acceptance, Rebman and Mrs. Gardner’s corporation filed this suit, seeking damages in the amount of the deposit and of the commission respectively. The trial court found, after a trial on the merits, that Reed had ratified Mrs. Gardner’s acceptance of Rebman’s offer and awarded contractual damages. We reverse.

I

A contract to sell immovable property, to be enforceable, must be in writing and must be signed by the buyer and the seller, and if an agent executes the contract on behalf of the buyer or the seller, the agent’s authority must be express and in writing. C.C. art. 2275, 2776, 2992, 2997; Turner v. Snype, 162 La. 117, 110 So. 109 (1926); Krupp v. Nelson, 50 So.2d 464 (La.App.Orl.1951). In the present case it is undisputed that at the time Mrs. Gardner executed the acceptance, she had no written authority to do so. Therefore, plaintiffs in order to prevail had to prove Reed ratified Mrs. Gardner’s acceptance on his behalf.

In reviewing the record, we accord no weight whatsoever to the testimony of Mr. and Mrs. Reed, which was completely rejected by the trial judge. We conclude, nevertheless, that plaintiffs failed to bear the burden of proving ratification of the September 20 offer as written.

II

When Reed employed the Gardner agency to sell the home, he signed a listing agreement which set the price and terms at $129,000.00 cash, including all draperies and some listed appliances. Reed’s wife, a salesperson with the Gardner agency, was the listing agent named in the agreement.

Margaret Gossett, another Gardner salesperson, obtained from Rebman the written offer upon which this suit is based. The offer, for $100,000.00, including the stove and “all items attached to wall”, contained the following provision:

Mrs. Go.ssett related the following version of the pertinent events leading up to the offer and acceptance: On Saturday, September 19, the day before the written offer at issue, while the Reeds were temporarily in Florida, she telephoned Mrs. Reed and submitted for overnight consideration an offer of $100,000.00, including the draperies and appliances. She read the complete offer to Mrs. Reed, who filled in the terms on a blank standard form she had brought to Florida with her. The next day Mrs. Reed called back and submitted two counter offers, one for $103,000.00 with the draperies and other items and the other for $100,000.00 without these items. They then discussed at length the provision in the offer making the sale conditional upon Reb-man’s obtaining homestead financing. When Mrs. Gossett insisted' that most offers contain this condition, Mr. Reed took the telephone and stated that regardless of how the majority of offers were worded, when he bought property he first arranged financing and then put in a cash offer. When she asked for ten days to help Reb-man obtain financing, Reed gave her until Tuesday night. She then contacted Reb-man, who signed the offer at issue (containing the already rejected' financing condition) and authorized her to apply for financing to the homestead which held the mortgage on his present home. The next morning (Monday) she and Mrs. Gardner secured a loan commitment, which was expressly subject to the title and survey being acceptable to the homestead’s attorney. (The homestead president testified he discussed with Mrs. Gossett and Mrs. Gardner that the loan was also subject to certain appraisal standards, as were all homestead loans.) Later that day (September 21) she telephoned Mrs. Reed in Florida and told her that arrangements had been made for the financing (according to the Reeds’ version, she said that the deal was the way they wanted it). Reed then authorized Mrs. Gardner to accept that offer for him. Mrs. Gardner requested written confirmation, but immediately (on September 21 at 3:55 p. m.) executed the acceptance of the September 20 offer “as agent for Seller as per Telephone authorization.”

Also undisputed are the following facts: On Tuesday, September 22 Mrs. Gardner again telephoned Reed, reaffirmed the previous day’s conversation, and again requested written confirmation of authority. Reed then wrote and mailed to Mrs. Gardner the following:

“September 22, 1970
“I authorize you to accept the offer on my house at 1224 Second Street, New Orleans, La., in the amount of $100,-000.00 all cash to me. No draperies, rugs, washing machine or dryer to be included in the Sale.”

The Reeds returned to New Orleans on Friday, September 25, and after spending the weekend looking at apartments and houses, submitted an offer on September 29 on a house in Metairie, which was rejected. Later on September 29 Mrs. Reed notified Mrs. Gardner that they rejected Rebman’s offer because of the financing condition.

Ill

Plaintiffs’ only evidence on ratification after Mrs. Gardner’s acceptance was Reed’s September 22 letter. We find that letter insufficient.

At the time Mrs. Gardner accepted the offer on Reed’s behalf the contract was voidable, but Reed had the power to validate the contract. Validation or ratification will not be presumed, however, and the party seeking to enforce the contract must prove that the other party ratified the agreement with full knowledge of all of the facts.

The September 22 letter authorizing acceptance of “the offer ... in the amount of $100,000 all cash” (emphasis supplied) merely constitutes written confirmation of the earlier verbal acceptance and thus needs explanatory evidence. Mrs. Gossett’s own testimony makes it clear that the only dispute over the verbal acceptance centered around the financing condition. She stated that her discussion with Mrs. Reed as to whether or not the offer she had read over the telephone constituted an “all cash offer” precipitated Mr. Reed’s taking the telephone and telling her that he always made his own financing arrangements before putting in a “cash offer”.

It is in the light of Mrs. Gossett’s testimony that we must view Reed’s September 22 letter and determine whether that letter made the previously voidable contract enforceable.

Nowhere in her testimony does Mrs. Gossett state that Reed accepted the September 20 offer (written before the commitment) on the condition that Rebman obtain financing in two days. (If so, the offer could have been accepted the same day by merely changing the “21 days” on line 13 to “2 days”). Indeed, without even mentioning the 21-day provision, she testified that he rejected the offer as then written. Significantly, this suit is based on the alleged ratification of the very same rejected offer, except that a qualified financing commitment had been obtained from a third party. Since the letter does not expressly confirm acceptance of the previously rejected term of the contract, it cannot provide conclusive proof that Reed accepted the previously rejected offer because a qualified commitment had been obtained.

The very purpose of the writing requirement for contracts to sell immovable property is to prevent misunderstandings over verbal terms. Mrs. Gossett could have mailed Rebman’s offer to the Reeds. She chose instead to take the chance that both parties would form the same impression from spoken words. The agency cannot now claim a commission on a sale which was aborted because a misunderstanding occurred over the verbal terms, when the Code and the jurisprudence require the terms of an offer to sell immovable property to be express and in writing. Since there was a reasonable misunderstanding over the only contractual term in dispute, we conclude the contract was not validated by ratification, and therefore no contractual damages and penalties are due.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered dismissing plaintiffs’ suit. The costs in both courts are to be evenly divided.

REVERSED AND RENDERED.

GULOTTA, J., concurs in the result.

BEER, J., concurs and assigns reasons.

GULOTTA, Judge

(concurring).

I concur with the result.

BEER, Judge

(concurring).

I concur in the result, being in accord with the majority’s .view that enforceable contracts for the sale of 'real estate must be in writing and, also, in accord with the majority’s view that the record does not support compelling proof of ratification.

However, I am convinced that Mr. Reed’s bombastic, delayed reaction to the financing provisions of the purchase offer was contrived and self-serving. In my view, the Reeds wanted out of the selling agreement not because of the innocuous financing provisions contained therein (which obviously created no serious problem with respect to the transaction) but purely and simply because they had, by the time of their “discovery,” determined that they would not be able to buy the house on Mulberry Drive at their price. Failure to put the whole deal together resulted in an emotional chain reaction which precipitated their last-ditch scheme to upset the sale to Rebman. Reed’s contention that he was sufficiently outraged upon his discovery of the financing provisions of the agreement (which came several days after his initial O.K.) to precipitate his reneging on the deal is ludicrous. I reject it totally.

Nevertheless, I believe that the critical, telephone-transmitted representations regarding the financing arrangements were inaccurate. Although I am convinced that Reed would have been indifferent to this if he had gotten the Mulberry Drive property at his price, I still feel obliged, under all of the circumstances, to concur in the majority’s resolution of the case for the reasons previously stated.

I am thoroughly convinced that Reed is escaping a moral obligation by the contrivance of petulant and bellicose objections which we are obliged to dignify because a less than accurate description of the financing agreement occurred during the telephone conversation between Gardner’s office and Reed. This tainted both the acceptance and the ratification.

It is unfortunate in the extreme that Rebman, the only unerring party, must be deprived of relief in the circumstances.

BEER, Judge

(concurring in the denial of a rehearing).

Sharing their conviction that to grant same would serve no useful purpose, I agree with my brothers in denying a rehearing.

Even so, I feel obliged to reiterate my observation that plaintiff-appellee, Reb-man, is the victim of a contrived, self-serving (though legally sufficient) defense interposed by Reed which is precariously based upon a technically inaccurate (and, thus, legally unsatisfactory) telephone transmitted representation made by Gardner’s office.

It is my view Reed’s position is the least morally defensible, Gardner’s is next (though a long way back from Reed’s) and Rebman is blameless. Nevertheless, Reb-man’s claim must be washed away because of the deficiencies in the critical telephone transmitted representation by Gardner to Reed regarding the financing arrangements.

      . The trial court originally maintained an exception of no cause of action, and this court affirmed. La.App., 274 So.2d 850. The Supreme Court reversed and remanded for trial, on the basis that plaintiffs had alleged the buyer’s ratification and should be afforded an opportunity to prove the allegations at trial on the merits. La., 286 So.2d 341.

      . We emphasize that Gardner’s claim for a commission is not based on the listing agreement. That agreement was essentially an offer of employment, in which Reed offered to pay Gardner a stipulated commission for finding a purchaser on the stated terms, and Gardner’s power of acceptance could be exercised by performance of the requested service. There is no issue raised in this case as to any commission or quantum meruit award due because of the broker’s performance or partial performance under the listing agreement, which apparently expired according to its own terms.
      The issues in this case solely involve the September 20 offer to purchase, which contained different terms than those stated in the listing agreement.

      . Herein lies the heart of the dispute. Heed contends he reasonably understood that he was authorizing acceptance of a new unconditional offer and that Mrs. Gossett had not obtained a new offer with the financing condition removed, but in effect had resubmitted the previously rejected offer, which was conditional upon financing, after obtaining a commitment for financing. Mrs. Gossett on the other hand, contends she reasonably understood Mr. Reed had given her two days to obtain fulfillment of the condition.

      . All parties concede that at this point the agent’s acceptance did not then give rise to an enforceable contract, since the authority for the acceptance was not in writing.

      . Plaintiffs contend Mrs. Reed became upset when their offer on the Metairie house was rejected, having previously indicated she really didn’t want to sell the old house.
      The Reeds’ explanation of the rejection was: They owned a vacant lot in Metairie on which they intended to construct a new residence, and found a house for sale nearby. On Monday, September 28, Mrs. Reed executed an offer to purchase the Metairie house, and Mrs. Gardner submitted it to the listing broker. The next afternoon (as verified by Mrs. Gossett) Mrs. Reed learned that the offer had been rejected. She also obtained, for the first time, a copy of the Rebman offer (which she did not examine, according to her testimony, because she was long before satisfied that the offer was the way they wanted it and because she was then involved in pursuing the Metairie house). She told Mrs. Gardner she would put in a higher offer the next day on the Metairie house. That evening (September 29) Mr. Reed came home and for the first time read the Rebman offer. When he saw the financing contingency, a condition he had categorically refused to accept despite Mrs. Gossett’s insistence, he became enraged and instructed his wife to tell Mrs. Gardner they rejected the Rebman offer and would make no further offer on the Metairie property. He returned the Rebman offer to Mrs. Gardner the following day with a letter indicating rejection because of the financing condition and also rescinding the authorization mailed from Florida since no unconditional cash offer of $100,000.00 had been obtained by the September 22 deadline given to Mrs. Gossett. He did not, however, attempt to revoke the listing agreement which, was still in effect.

      . When asked that specific question, Mrs. Gossett responded as follows:
      “Q. Did Mr. Reed tell you that he would accept an offer conditioned on financing provided you got the financing?
      “A. Well, what would you think it meant if he says, ‘You may have two days for financing’?
      * * * # *
      “Q. The only thing they knew was what you were telling them on the telephone, is that right?
      “A. Right.
      “Q. And I suppose that it is at least possible that you misunderstood them or they misunderstood you?
      “A. Well, I don’t think we would be here if it weren’t.”

      . Reed’s stated reason for demanding an unconditional offer was that a low appraisal would tend to “peg the price” in the event the homestead loan was not completed for any reason, while an unconditional contract bound the • purchaser regardless of the appraisal or of completion of the homestead loan. Expert testimony suggested that a low appraisal could be expected on the property because of unique characteristics and particular location.

      . The obtaining of the commitment did not make the conditional offer become unconditional. The buyer’s obligation still depended upon the performance of a third party, and if the homestead failed to complete the loan for any reason, Reed could not have enforced the contract.

      . The offer did not specify a time for acceptance. Therefore, the offer could have been accepted within such time as the situation of the parties and the nature of the contract would reasonably require. O.O. art. 1802.


author: HOOD, Judge.

text:
    Verjie Wheat THERIOT, Indiv., et al., Plaintiffs-Appellants, v. Robert CASTLE and the Travelers Insurance Company, Defendants-Appellees.
    No. 5595.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1976.

      Domengeaux & Wright by Terry E. Theriot, Lafayette, for plaintiffs-appellants.
    Holt & Woodley by Drew A. Ranier, Lake Charles, for defendants-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MOTION TO REMAND

HOOD, Judge.

The defendant-appellee, Travelers Insurance Company, moves to remand this suit to the .district court to enable it to traverse the right of the plaintiff-appellant, Verjie Wheat Theriot, to continue to pursue this appeal in forma pauperis. The motion is unopposed. We remand.

The record of this appeal has not as yet been lodged with this court.

The defendant has attached to its Motion to Remand a notorized document entitled “Satisfaction of Judgment,” in which the plaintiff, Verjie Wheat Theriot, acknowledges receipt of the sum of $15,469.-88 in full satisfaction of the trial court’s judgment rendered in favor of herself and her minor children.

In view of this recent change in plaintiff’s financial condition, we believe that defendant is entitled to an opportunity to traverse the right of the plaintiff to proceed with her appeal in forma pauperis.

After an appeal has been granted in forma pauperis, an appellee who desires to traverse the affidavits of poverty, or the appellant’s right to continue the appeal without furnishing bond or paying costs, may timely apply to the appellate court to remand the case for that purpose. Affiliated Foods, Inc., v. Blanchard, 256 So.2d 363 (La.App. 3 Cir. 1971); Lake Charles Tile & Carpet Company v. Foster, 251 So. 2d 196 (La.App. 3 Cir. 1971). This application was timely filed.

The case is remanded to the trial court to allow the defendant-appellee to traverse the right of the plaintiff-appellant to proceed in forma pauperis, and for the trial court to rule on that issue.

REMANDED.


author: STOULIG, Judge. REDMANN, Judge

text:
    CARBOLINE COMPANY v. Ray HYMEL, d/b/a Jay-Ray Sandblasting.
    No. 7442.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Jacob L. Karno, Metairie, Charles S. McKendrick, Jr., New Orleans, for plaintiff-appellee.
    Windhorst, Heisler, de Laup & Wysocki, Frederick P. Heisler, Steven M. Koenig, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Carboline Company, filed suit on an open account of $4,913.30 against defendant, Ray Hymel, doing business as Jay-Ray Sandblasting. Although Hymel was served personally, no answer was filed and plaintiff took a default judgment. Defendant has appealed devolutively.

In this court defendant filed an exception of no cause of action, averring it is apparent from the face of the pleadings and attached exhibits that he was sued individually for the corporate debt of Jay-Ray Sandblasters and Painters, Inc.

The petition alleges Hymel was indebted to plaintiff for $4,913.30; that defendant received the merchandise described on the itemized account attached as an exhibit; and further that he has acknowledged the indebtedness and promised- to pay plaintiff this amount but has failed to do so. Three of the six invoices annexed to the petition and alleged to comprise the past due indebtedness show material was delivered to “Jay-Ray Sandblasters, c/o Hunt Engine” and the other three reflect material was sold to “Jay-Ray Sandblasters & Painters Incorporated.” In confirming the default, plaintiff filed an affidavit of correctness of account, which reads:

“Comes now the undersigned, vice-president of Carboline Company, a Missouri Corporation, and states that Ray Hymel d/b/a Jay-Ray Sandblasting is indebted to Carboline Company in the sum of $4,913.30 for goods and materials delivered to Ray Hymel as is reflected on the books of the said Carboline Company and the invoices attached to this affidavit.”

The allegations in the petition quoad the individual liability of the defendant are contradicted by the invoices attached as exhibits. Further the affidavit of the Car-boline executive relates Hymel’s individual liability with the invoices filed in the record.

We will not maintain the exception of no cause of action because the petition on its face does aver Hymel’s individual liability. However, we vacate this judgment because plaintiff failed to meet the requisites of C.C.P. art. 1702, which provides in part: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” This has been interpreted to mean plaintiff, in confirming a default judgment, must prove the essential allegations of his petition as if they had been specifically denied. Because plaintiff’s own exhibits contradict its assertion as to Hymel’s individual liability, we conclude there is insufficient evidence to support the judgment.

We do note defendant was aware of the pending lawsuit against him individually and failed to present his defenses and/or exceptions. Therefore, we think justice requires our remanding this matter to permit plaintiff to present whatever clarification or amendment might be necessary to properly present his claim.

For the reasons assigned the judgment appealed is annulled and this matter is remanded for further proceedings consistent with the views herein expressed. Costs will be assessed after trial on the merits.

JUDGMENT ANNULLED; REMANDED.

REDMANN, Judge

(concurring).

No case against the individual was proven. Because the attached contradicting invoices are part of the petition, C.C.P. 853, no cause of action is even alleged; but conceivably one could be, and therefore amendment could be allowed, C.C.P. 934. Certainly on an attempted confirmation of default a trial judge should not dismiss merely because of failure to allege a material element of a cause of action; nor, on appeal, should we. I therefore concur in the remand.

      . Wagenvoord Broadcasting Company v. Blanchard, 255 So.2d 635 (La.App.4th Cir. 1971) ; Calvert Fire Insurance Company v. Felton, 244 So.2d 311 (La.App.4th Cir. 1971).


author: SCHOTT, Judge. REDMANN, Judge LEMMON, Judge

text:
    Robert O. LANDRY v. Flora VILLERE et al.
    No. 7413.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Writ Granted Oct. 29, 1976.

      Lyman L. Jones, Jr., George L. Gillespie, Jr., Gillespie & Jones, Metairie, for plaintiff-appellee.
    Henican, James & Cleveland, C. Ellis Henican, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This appeal by the executor of the Succession of Mrs. Flora Villere questions the sufficiency of proof in support of plaintiff’s claim against the succession for a commission on the sale of a dragline. He attacks the judgment both on inconsistencies in plaintiff’s own testimony and on the failure of the evidence to comply with the requirements of LSA-R.S. 13:3721, 13:3722.

Plaintiff’s evidence consisted principally of his own testimony and that of his employee, Albert Butler.

Plaintiff testified: Mrs. Villere engaged plaintiff to remove broken down machinery from and generally to clean up certain bat-ture which she owned. Plaintiff’s workers cut and removed steel which they sold for scrap as payment for their services. Also located on the batture was the dragline which had not been used for two years. She had been offered $12,000.00, but he advised that a better price could be obtained if the machine were repaired and placed in working order. She employed him to repair the machinery and to sell it with a commission to him on the sale. After discussing the sale and commission on several occasions, they went together to a dealer of such equipment where they were advised that 10% was a fair commission. After repairing the machine, he came in contact with someone who was looking for a drag-line, and he demonstrated the machine. Plaintiff quoted a price of $16,000.00 and was offered $15,000.00. When he informed Mrs. Villere, she wanted to sell at that price. Plaintiff received a $15,000.00 check payable to Mrs. Villere from the purchaser and helped load the equipment on the purchaser’s truck. Mrs. Villere deposited the check on March 1, 1974, and paid his itemized bill, also dated March 1, for the costs for moving and repairing the dragline with a check on the account of the corporation which owned the dragline. Mrs. Villere then left to go out of state, promising to send him a check for the commission. Plaintiff’s March 1 bill made no mention of any commission and on March 26, as soon as plaintiff learned of Mrs. Villere’s death, he sent a Bill for the commission to the attorney for her succession.

Butler testified: On several occasions during January, 1974, he heard Mrs. Vill-ere offer to pay plaintiff a commission if he obtained a sale for the dragline. Later in January he drove plaintiff and Mrs. Villere to a dealer to determine the proper amount of commission when Mrs. Villere stated she would pay plaintiff a 10% commission if he obtained a sale. After that trip he never saw Mrs. Villere again.

The executor makes much of various inconsistencies with reference to the date of the alleged agreement between him and decedent in plaintiff’s testimony at trial, the allegations of his petition, his answers to written interrogatories and his testimony at his deposition taken a year before trial. Regardless of what importance we might attach to these inconsistencies the trial judge was apparently unimpressed. He concluded that the fact plaintiff couldn’t remember the date of the “agreement” and referred to an obviously wrong date in pleadings and discovery was ultimately of little significance and he found that Butler was “utterly honest and clear in his recollection” of Mrs. Villere’s offer. For our purposes we accept the trial judge’s findings but conclude that his judgment must be reversed as a matter of law.

Mrs. Villere’s liability, if any, was based on a contract which came about in two steps: 1) an offer by her to pay a sales commission, and 2) acceptance by plaintiff when he obtained a sale at a price acceptable to her. Plaintiff thus had the burden to prove both her offer of a commission for the service and his acceptance by performance of the requested service.

Applicable to this case are the proof requirements of LSA-R.S. 13:3721, and 13:3722. § 3721 provides the circumstances under which parol evidence is admissible to prove the debt or liability of a deceased person. Concededly, parol evidence was admissible in the present case. However, § 3722 provides:

“When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”

Because of these requirements, it was necessary for plaintiff to prove both elements, to wit, the offer and the acceptance which gave rise to Mrs. Villere’s liability, by the testimony of at least one “creditable” witness, other than himself, and other corroborating circumstances. As to the first element, Butler’s testimony satisfied the statute as to testimonial proof of the offer, and the moving, repair and sales of the dragline constituted corroborating circumstances.

However, Butler’s testimony supplied no direct proof of plaintiff’s connection with sale of the dragline. His testimony only established that plaintiff secured the labor and parts to repair the dragline (for which a bill was presented and paid), that the purchaser and his mechanic stayed for some time at the motel which plaintiff owned, that he (Butler) took the purchaser several times to see the machine, and that he was with them on the day the purchaser bought the machine and loaded it.

Butler’s testimony did not establish that plaintiff secured the purchaser or had anything to do with the sale. Neither the purchaser, his agent, nor the mechanic were offered as witnesses. Plaintiff’s only other witness as to pre-sale events testified only about moving the dragline from the batture across the levee. Therefore, the only testimony directly connecting plaintiff with the sale was the testimony of plaintiff himself.

Inasmuch as an essential element of Mrs. Villere’s liability (that plaintiff accepted her offer by performing the requested service) was not “proved by the testimony of at least one creditable witness other than the claimant,” we conclude the proof was insufficient to comply with the statute.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendant, Francis C. Doyle, Dative Testamentary Excecutor of the Succession of Flora Mary, widow of Walter P. Villere, Sr., and against plaintiff, Robert O. Landry, dismissing his suit at his cost.

REVERSED AND RENDERED

REDMANN, J., concurs with written reasons.

LEMMON, J., dissents with written reasons.

REDMANN, Judge

(concurring).

Plaintiff charged decedent $500 (including $100 “insurance” and $25 “permit”) for moving the dragline across the levee, $125 for labor to clean and grease it (she paid separately for the grease), $100 to paint it, and $555 for labor alone to change its oil and install two filters, four bolt kits, a battery, a seat, three “glasses” (“front and two sides”) and a barrel and cable. Moreover, despite plaintiff’s contrary testimony, his motel “maintenance man” testified that the labor (which plaintiff’s bill showed as by two “machine men, 37 hrs. each, $7.50 per hour”) was done by the maintenance man and plaintiff’s son. Those charges plus $708.75 for the parts recited above (no others) totalled $1,988.75, which was the total of plaintiff’s typewritten bill.

At the time plaintiff turned over to decedent the $15,000 check paying for the bulldozer she paid plaintiff that itemized bill for $1,988.78. That was the time for plaintiff to have been additionally paid the claimed $1,500 commission if it were agreed on and due. In fact, an additional $100, rather than $1,500, was then paid: to the $1,988.75 typewritten total was added a handwritten $100, making a handwritten total of $2,088.75, which decedent paid.

The probable explanation of that extra $100 is that that was the only “commission” decedent was willing to pay in -addition to an apparently inflated bill for moving and repair. Perhaps decedent had earlier understood she would pay 10% for the indispensable moving, cleaning and fixing as well as sale efforts. She finally paid 14%, and plaintiff would have her pay 24%.

I conclude that, irrespective of whether plaintiff’s efforts “sold” the dragline, he is not entitled to anything more than he got from decedent.

LEMMON, Judge

(dissenting).

Since the proof did not comply with R.S. 13:3722, the judgment must be reversed.

Nevertheless, I vote for a remand under the particular circumstances of this case in which the evidence (found credible by the trial judge) would have been sufficient to support the'judgment, except for the technical requirements of the statute.

This type of case should normally be won or lost in the trial court, and the trial judge commented at the start as to the discerning manner in which he intended to weigh evidence which the deceased person could not contradict. Since plaintiff concentrated his trial efforts on proving Mrs. Villere’s offer, which was the more difficult element to prove, the primary dispute as to the existence and date of the “agreement” subverted the offer and acceptance elements of the proof. Since the circumstances of this case raise strong inferences that plaintiff was responsible for consummating the sale, it appears probable that the litigant will sustain an injustice unless afforded further opportunity to furnish the obviously available proof of his connection with the sale.

For example, a compelling inference as to plaintiff’s connection with the sale is raised by the circumstance that his employee, Butler, while apparently on duty, drove the purchaser and his mechanic on several occasions from plaintiff’s motel, where “they lived for some time”, to examine the dragline and was there when they bought and loaded it. This circumstance alone would be sufficiently corroborative of plaintiff’s testimony, but for the more stringent proof requirements of R.S. 13:3722.

In Succession of Dugas, 215 La. 13, 39 So.2d 750 (1949) the claimant failed to prove her claim precisely as required by the dead man’s statute, although the proof was apparently available at the time of trial. However, the Supreme Court, convinced by the evidence of the validity of the claim, remanded the case in the interest of justice to allow an opportunity to supplement the deficiency.

The purpose of the dead man’s statute is to set a higher minimum proof than the circumstantially corroborated testimony of the claimant alone in cases where the claimant’s testimony cannot be denied because the alleged debtor is deceased. Many valid claims are thereby made unenforceable when the debtor dies, if the survivor has no witnesses or written evidence as to the debt or liability. Thus, while protecting the heirs of the deceased person from invalid claims, the statute with its higher standard of proof sometimes causes injustice to the survivor.

In the present case, where the evidence fulfills the usual burden of proof, but is deficient only because of the higher requirement of the statute, a remand will possibly prevent an injustice. On the other hand, a remand does not insure that plaintiff will prevail. Plaintiff must still supply the required proof, and with his version of the facts of the sale already in the record, the executrix can offer rebuttal proof that plaintiff was not responsible for consummating the sale.

Finally, Judge Redmann’s perceptive analysis in his concurring opinion of plaintiff’s itemized bill suggests that plaintiff was in fact adequately compensated for his total services. Indeed, the strongest circumstantial evidence against plaintiff’s claim is the fact that he did not ask for or receive a 10% commission when Mrs. Vill-ere deposited the purchaser’s check and paid plaintiff’s bill. Nevertheless, neither party went into an analysis of this bill when presenting evidence at trial, and on remand plaintiff could be confronted with the questions raised by Judge Redmann’s analysis, after which the trial judge can reconsider all evidence. My primary objection is the denial of a remand based on a relatively insignificant technical deficiency.

      . The named defendant resigned her position as administratrix shortly before trial and the newly appointed dative testamentary executor was substituted as defendant at the trial.

      .Interestingly, had the dragline been sold for $12,000.00 Mrs. Villere would have been better off than she would be under plaintiff’s version. She paid plaintiff $2088.75 to repair and remove the dragline, and according to plaintiff would owe a commission of $1500.00, leaving her a net of under $11,500.-00.

      . Although a corporation owned the dragline, the trial court found that Mrs. Villere had not disclosed her representative status and held her personally liable.

      . It is well to note here that plaintiff was 83 years of age at the time of the trial.

      . Butler’s complete testimony as to the sale was:
      “Q. Now, did you ever see Ralph Louis and a mechanic come out to look at this machine?
      “A. Yes, sir. That was the fellows that bought it. They lived at the motel quite some time. Matter of fact, I carried them over to it to show them to it and from that time on they would make trips back and forward to this place and the day they bought the machine and loaded it, I was with them that day also.”

      . Dead Man’s Statutes originated as a rule of incompetency of witnesses that disqualified parties and interested persons from testifying as to transactions with a party who subsequently died. For a history and criticism of these statutes, see McCormick, Law of Evidence § 65 (2d ed. 1972). The Louisiana statute does not disqualify the party’s testimony, but rather requires additional testimony as minimum proof.