author: FORET, Judge. STOKER, Judge,

text:
    Curtis ROBERTSON, Plaintiff-Appellant, v. JIMMY WALKER CHRYSLER-PLYMOUTH, INC. & Chrysler Corporation, Defendants-Appellees.
    No. 6842.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearings Denied March 29, 1979 for Curtis Robertson and Chrysler Corporation.

      Garrett & Ryland, Donald M. Garrett and Charles F. Nunnally, III, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble, Lon P. Wilson, Alexandria, McGlinchy, Stafford, Mintz & Hoffman by William F. Bologna, New Orleans, for defendants-appellees.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

This is a redhibition suit for return of purchase price of a 1974 Plymouth Trail Duster purchased by plaintiff from defendant, Jimmy Walker Chrysler-Plymouth, Inc. which was manufactured by the co-defendant, Chrysler Corporation. Jimmy Walker has also filed a third party demand against Chrysler Corporation for any amount it may be required to pay plaintiff. Defendants filed an exception of one-year prescription to the bringing of the action; this was referred to the merits.

After trial on the merits, the trial court held that the action had prescribed, finding that more than a year had elapsed since the defendant’s last attempt to repair plaintiff’s vehicle. Plaintiff appeals this judgment and also urges that he should prevail on the merits of his demand. Defendants, Jimmy Walker and Chrysler Corporation have answered, seeking to uphold the judgment of prescription, and, in the alternative, deny the merits of plaintiff’s demand.

Plaintiff, Curtis Robertson, purchased the Plymouth Trail Duster from Jimmy Walker Chrysler-Plymouth on June 11,1974, paying a cash purchase price (including an earlier $500 deposit) of $5,040.00; he arranged private financing through Rapides Bank. Shortly after his taking possession of the vehicle, it suffered its first drive train problem. Over the next several months, he continued to experience various difficulties with the vehicle and brought it back several times to Jimmy Walker for repair under the warranty agreement.

In January, 1975, he brought it in again to Jimmy Walker for repair of the four-wheel drive transfer case. Jimmy Walker kept the vehicle for some time, finally returning it to the plaintiff on March 3, 1975. Within a few days, the problem had reappeared, and plaintiff returned again to Jimmy Walker. There he was told that since the vehicle was now out of warranty, they could not do any more work on it without approval of a Chrysler factory representative. Thereafter, plaintiff engaged the services of an independent mechanic who, over a period of some months, attempted to repair the vehicle without lasting success. Finally, on March 12, 1976, plaintiff filed this suit for redhibition.

PRESCRIPTION

Defendants, Jimmy Walker and Chrysler, filed an exception of prescription alleging that more than one year had passed since Jimmy Walker had attempted to repair the vehicle. Louisiana Civil Code Article 2534 provides the prescriptive period applicable in a redhibition suit. However, this period has been held not to start running until the date the seller abandons his attempts to repair the defect. Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La. App. 3 Cir. 1978); Franklin v. American Motors Corporation, 344 So.2d 1130 (La. App. 3 Cir. 1977).

Additionally, “ . . prescriptive statutes are strictly construed, and the facts of the case must bring the action clearly within the specific provisions of the law sought to be applied.” United Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956).

Plaintiff’s uncontradicted testimony is that, in effect, he was told that further repairs had to await the factory “rep’s” authorization, not that they wouldn’t be done. Mr. Robertson’s testimony was as follows:

“Q. All right. Do you recall when you notified Jimmie Walker Chrysler-Plymouth of this subsequent trouble?
A. Oh, I’d say it was less than a week, after I’d got it out of the shop. I don’t recall the exact date. It was about . . . after March . No, it was probably around March the ... I got it out March the 3rd, I think. And ... it was four (4) or five (5) days after that.
Q. Okay. Did . . . . Who did you talk to at Jimmie Walker Chrysler-Plymouth?
A. Leslie Harville.[]
Q. What did Mr. Harville tell you
A. Well, he’d — (Interrupted)
Q. About — (Interrupted)
A. Have to have a factory representative to look at it. And said it was out of warranty. And that they couldn’t do any more work on it unless they had the factory representative’s authority.
Q. Okay. Now, did you go back to Jimmie Walker Chrysler-Plymouth on any particular other date in March, concerning something to be placed on the vehicle?
A. Yes, I went back . . . probably, two (2) weeks later to find out if the factory representative had come in. And . . . which he hadn’t, they said. And they had my tailgate lock for something and I got it put on.
Q. Okay. The time that your tailgate lock was put on, did they tell you that they would not fix the vehicle?
A. No, they did not. The factory ‘rep’ hadn’t come in yet, at that time.
Q. Did anyone from Jimmie Walker Chrysler-Plymouth tell you that they would not fix . . . . Did anyone at Jimmie Walker Chrysler-Plymouth notify you concerning your vehicle?
A. No, they did not. Leslie Harville told me that he would call me when the factory representative came in. And so I waited nearly two (2) months and he never did call. So I went in one day and he said . . . . Asked him if the factory representative had come in? And he said, yes, but that he told me that we’re not going to fix your car, so it wouldn’t do any good for him to call you. And then, I just asked him why didn’t they give me the courtesy to let the man call me and tell me hisself.
Q. Do you recall this time? Was it . . What month? What day of the month? Do you recall when they told you this?
A. It was, probably . . . some time early June.” (Tr., pgs. 184-186)

This differs from the situation in Franklin, supra, where the plaintiff was not led to believe repairs would be made but merely continued to telephone the defendant automobile manufacturer requesting assistance. In this case, Robertson was led to believe that at the very least, Jimmy Walker or the Chrysler factory “rep” would contact him.

The facts of this case are also similar to those present in our recently decided Fleur de Leis Apartments v. Davidson Sash and Door Company, Inc., 364 So.2d 234 (La.App. 3 Cir. 1978). There the court found that various representations made by the defendant manufacturer’s representative were understood by the plaintiff to mean that his problem would be at least inquired into, and that he would receive some further communication. This was sufficient to lull the plaintiff into a false sense of security and interrupt prescription. In the present case, we find that prescription did not begin to run on the plaintiff’s cause of action until he was definitely told that no more work would be done on his vehicle (June, 1975) and that this suit filed on March 12, 1976, was timely instituted.

On appeal, Chrysler argues that representations made by Jimmy Walker do not extend the prescriptive period as to it. Chrysler furnishes no law or jurisprudence in support of this contention and we do not find any. Further, the record indicates that Chrysler and Jimmy Walker were inseparably involved in attempts to correct the alleged defects. The plea of prescription is overruled as to both Jimmy Walker and Chrysler.

MERITS

As noted above, plaintiff, Curtis Robertson, purchased the Plymouth Trail Duster from Jimmy Walker on June 11, 1974, paying a cash purchase price (including an earlier $500 deposit) of $5,040.00; he arranged private financing through Rapides Bank. Almost immediately he began experiencing problems with the vehicle. On July 10, he brought it back to Jimmy Walker, complaining of a noise in the rear end. Jimmy Walker and a Chrysler factory representative initially thought that there was a wrong lubricant in the differential or a defective brake. Eventually, it was determined that it was neither of these and the rear end was replaced. Approximately one month later while using the vehicle off road, the four wheel drive transfer case became stuck in the “low-lock” position. In order to get back to Alexandria, he contacted a mechanic friend who advised him to remove the front drive shaft as the vehicle could not be driven on the highway while in “low-lock” (apparently the rear differential overheated when he attempted to do so). He took it back to Jimmy Walker the next day and while the transfer case was being repaired, a front wheel bearing was also found to be broken (or perhaps was broken by a Jimmy Walker mechanic during the repair process). As Jimmy Walker had no replacement front bearings in stock, plaintiff was forced to leave the vehicle at the dealership for some four to six weeks until a new bearing came in. Approximately two weeks after putting the replacement bearing in, it began making noise and the vehicle was again returned to Jimmy Walker. There it was found that the bearing was dry and it was again replaced.

The next trouble the plaintiff experienced with the vehicle occurred in the fall of 1974 when the chain in the four wheel drive transfer case began slipping. He brought the vehicle back to Jimmy Walker who told him that it would take some time to locate the problem and repair it. He was told that he could go ahead and use the vehicle during that hunting season and bring it back to the dealer when hunting season was over to be repaired. He returned the Trail Duster to Jimmy Walker in early January, 1975, and they kept it until March 3, 1975, when it was returned to the plaintiff. Within a few days, the problem in the transfer case and/or transmission had reappeared, and he returned to Jimmy Walker. There he was told since it was now out of warranty they could not do any more work on it without approval of a Chrysler factory representative. As noted hereinabove in our discussion on prescription, plaintiff was led to believe that further repairs would be made to the vehicle as soon as the factory “rep” authorized it.

When finally informed in the summer of 1975 that no further repairs would be made by Jimmy Walker because the factory “rep” would not authorize same, plaintiff took the vehicle to an independent mechanic, Clyde Kelly, who attempted, over the next year, to repair the transfer case and transmission. Despite the replacement of two rear-end differentials, two transfer case overhauls, numerous chain replacements and various other repairs, Kelly was unable to permanently eliminate the problems. Defendant, Chrysler, argues that Kelly was not properly trained to work on the relatively new type of constant four wheel drive transfer case installed on the Trail Duster and testimony by both Kelly and Chrysler’s factory representative, Mr. Joe Knowles somewhat substantiates this. However, after refusal by Jimmy Walker to work again on the vehicle, plaintiff apparently took the logical course: to hire an independent mechanic with many years experience in Chrysler products. We do not find plaintiff at fault in doing this considering the attitude of Jimmy Walker and Chrysler. Edwards v. Port AMC/Jeep, Inc., 337 So.2d 276 (La.App. 2 Cir. 1976), writ refused.

Defendants argue that the condition of the vehicle and the problems experienced with it come from owner abuse. It must be noted here that the Trail Duster is a four wheel drive utility-recreation vehicle, similar to a Jeep or Chevrolet Blazer (which it more closely resembles). Mr. Robertson is an independent building contractor and developer, as well as a sportsman, and testified that he specifically purchased this vehicle to use on and off the road for use in both business and pleasure. Prior to the purchase of the Trail Duster, he had owned another four wheel drive vehicle, an International Scout. The Trail Duster was a newly introduced vehicle at this time and in fact was the first one that Jimmy Walker had sold or worked on. One special feature, discussed elsewhere in this opinion, was a constant four wheel drive system whereby the vehicle operates in the four wheel drive mode at all times and it is not possible to “lock out” the drive to the front wheels as is possible with some other four wheel drive vehicles. Additionally, the four wheel drive system provides a “lock” mode to be used in rough, off road travel when there may not be optimum traction. There is a “low lock” position for extremely rough traveling such as in mud at low speeds and a “high lock” for somewhat faster travel in less rough terrain. These lock modes are controlled by shift lever inside the vehicle.

In determining what constitutes owner abuse, we must look to the nature of the vehicle. The Trail Duster was a four wheel drive vehicle advertised and sold for use on and off the road; what may be abuse to an ordinary passenger automobile is what this vehicle is supposed to thrive on. Plaintiff specifically ordered his Trail Duster from Jimmy Walker after consultation with a salesman; Jimmy Walker thus had knowledge of the use to which plaintiff intended to put the vehicle. Plaintiff stated that he used the vehicle to go hunting and fishing as well as to travel to job sites on unimproved roads; this is the type of use such vehicles are customarily purchased for.

Defendants allege that the vehicle was stuck in mud; plaintiff does not deny this. In order to minimize these situations, he installed an electric winch on the front of the vehicle to pull it out of such trouble. Various minor body damage is likewise expected when used in rough terrain.

Defendants allege that plaintiff installed different sized tires on the rear and in the front of the vehicle which all mechanical evidence shows would cause drive train problems. Plaintiff denies this and none of Jimmy Walker’s employees could testify that they ever saw the vehicle so equipped while in the dealership for repairs. Plaintiff did place larger tires on the vehicle necessitating some minor cutting of the body for them to fit (both front and rear from the photographs introduced into evidence). Again, whereas this might constitute abuse on an ordinary passenger automobile destined for use on paved roads, this is common practice among owners of four wheel drive vehicles in order to add ground clearance and traction. Chrysler does not allege that larger tires on all four wheels would have caused mechanical harm to the drive train.

Every vehicle has its capabilities beyond which use constitutes abuse. This four wheel drive vehicle is advertised and sold for its on-and-off-road qualities; plaintiff specifically purchased it for hunting and fishing as well as for his business. Considering the nature of the vehicle, we find no owner abuse in the present case.

Finding no owner abuse, we hold that the plaintiff would not have purchased this vehicle if he had known of the problems in the drive train, and is thus entitled to dissolution of the sale.

Chrysler Corporation has raised two defenses relative to Jimmy Walker’s third party demand against Chrysler. First, Chrysler contends that the dealer agreement provides that the law of Michigan shall apply, and secondly, that Jimmy Walker waived its redhibitory warranty in the dealer agreement which was entered into between Chrysler and Jimmy Walker.

As to Chrysler’s contention that the law of Michigan applies, we find no merit therein. Chrysler has not introduced or demonstrated just what the law of Michigan actually is in respect to the issues in this case. The cases are legion that unless the law of a sister state upon which a party relies is placed in evidence, then it is presumed that such law is the same as that of Louisiana. Jagers v. Royal Indemnity Co., 257 So.2d 806 (La.App. 3 Cir. 1972), writ issued, 260 So.2d 315, 261 La. 524, affirmed 276 So.2d 309; Morrison v. New Hampshire Insurance Co., 187 So.2d 729, 249 La. 546; Johnson v. McCorvey, 344 So.2d 448 (La. App. 2 Cir. 1977).

As to Chrysler’s second contention, that is, that Jimmy Walker has waived its redhibitory warranty in the dealer agreement so that it could not recover in indemnity, its damages as a result of a defectively manufactured automobile, we observe Louisiana Civil Code Article 2531, as amended in 1974, in pertinent part:

In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish, or prevent such recoupment by the seller shall not be given any force or effect.”

The 1974 amendment to Article 2531 was adopted subsequent to the dealer agreement between Chrysler and Jimmy Walker. The provision of the direct dealer agreement which Chrysler relies on provides as follows:

“Chrysler Corporation’s warranty on new Chrysler passenger cars, as in effect from time to time, will be as set forth in Chrysler’s warranty and policy procedure manual. Chrysler will supply sufficient copies of Chrysler Corporation’s then current warranty to direct dealer to permit direct dealer, in accordance with direct dealer’s obligations under paragraph 7 of this agreement, to provide a copy to each purchaser from direct dealer of a new Chrysler passenger car. Such warranty will be the only warranty made or deemed to have been made to any person by either Chrysler or Chrysler Corporation applicable to products sold under this agreement, it will be expressly in lieu of any other warranty, express or implied, including but not limited to any implied warranty of merchantability or fitness for a particular purpose; and any remedies set forth in such warranty will be the only remedies available to any person with respect to products sold hereunder. Neither Chrysler nor Chrysler Corporation assumes or authorizes any other person to assume for either of them any other obligation or liability in regard to such products.”

We find Chrysler’s position in this matter to be untenable. Louisiana Civil Code Article 2531 specifically provides that the seller is entitled to recoup its losses from the manufacturer regardless of any contrary provision, in any franchise or manufacturer-seller contract or agreement. In addition, the direct dealer agreement states that the warranty is the one that is in effect from “time to time” and as set forth in Chrysler’s warranty and policy procedural manual. In our opinion, this is not a sufficient waiver of warranty against redhibitory defects, and in addition, there has not been sufficient proof of what warranty was in effect under the direct dealer agreement on the issue involved in this lawsuit, and whether or not this warranty is changed from time to time. ^ There can be no effective waiver of the warranty against redhibitory defects by the substitution of another unspecified warranty that may change from time to time. Since there has not been sufficient proof of what warranty was referred to in the direct dealer agreement, it would be presumed to be the same warranty as provided by Louisiana law. Accordingly, we hold that Jimmy Walker is entitled to be indemnified for any and all damages which it may have sustained as a result of the defectively manufactured Trail Duster which Jimmy Walker sold to the plaintiff herein.

Having determined that plaintiff is entitled to a dissolution of the sale, we now address ourselves to a consideration of damages, attorney fees, etc. During the period of time that plaintiff operated the vehicle, he logged a total of 44,000 miles in the vehicle before he permanently abandoned his attempts to repair it. Obviously plaintiff had extensive use of the vehicle up until that time. Accordingly, we are of the opinion that $.08 per mile for the 44,000 miles would be proper credit to be allowed against the purchase price of the vehicle. In computing the amount of recovery to which plaintiff is entitled, we show the following:

Cost of vehicle _$ 5,040.00
Sales tax_ 216.00
License & title_ 11.50
Finance charges _ 716.79
Total cost_$ 5,984.29
Cost of repairs incurred by plaintiff after Jimmy Walker and Chrysler refused further work _$ 1,305.53
Total .__.$ 7,289.82
From this total, we subtract $.08 per mile credit due to the defendants for 44,000 miles worth of use 3.520.00
Total _ $ 3,769.82

In this amount, we cast judgment in solido against Jimmy Walker and Chrysler, but for which we grant judgment to Jimmy Walker for that amount for its third party demand against Chrysler. See Porche v. Robinson Bros., Inc., 349 So.2d 975 (La.App. 1 Cir. 1977); La. Civil Code Article 2545; Rey v. Cuccia, 298 So.2d 840 (La.1974); Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3 Cir. 1975), writ refused 313 So.2d 239 (La.1975).

Plaintiff has requested damages for mental anguish and inconvenience alleging that the principal purpose of his purchase of the vehicle was his “avid interest and intellectual enjoyment of the outdoor activities” (pi’s, brief, pg. 19, i. e. hunting & fishing). Despite this attempt to distinguish his present situation from that present in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), we feel constrained by the language of the Louisiana Supreme Court in that leading decision. (See also Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3 Cir. 1979)).

In that case, the Louisiana Supreme Court refused to award damages for aggravation, distress, and inconvenience under Louisiana Civil Code Article 1934 in a situation involving breach of contract of repair of an automobile, reasoning that the object of such contract was not primarily or exclusively the intellectual gratification of the aggrieved party:

“The principal object of the contract, the overriding concern of plaintiff, evident to defendant at the time the contract was entered into, was the repair of plaintiff’s automobile with its consequent utility or physical gratification.” Meador, at page 437.

In Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1 Cir. 1977), our brothers of the First Circuit, following Mea-dor, held that claims for mental anguish and inconvenience are not compensable in an action in redhibition. While the vehicle in the present case is not an ordinary passenger automobile, the object of the contract of purchase of it is not sufficiently different. While it may have been purchased with the idea of using it for recreational activities, we do not believe that the evidence at trial has shown that this was the principal or exclusive reason for its purchase. Agreeing with our appellate brethren and being bound by the majority opinion in Meador, we are unable to grant the prayed for damages.

Plaintiff has requested attorney fees as damages at both trial and appellate level, and we award him the amount of $3,500.00 attorney fees against Chrysler Corporation. Jimmy Walker, by third party demand, has requested and we grant judgment over against Chrysler for any amount for which it becomes indebted to plaintiff, which we have determined to be $3,769.82 (as above mentioned), as well as its own attorney fees which it has incurred in the defense of plaintiff’s suit. We feel that an award of $2,000.00 to Jimmy Walker for attorney’s fees would not be inappropriate. See Porche v. Robinson Bros., supra; Gonzales v. Southwest Mobile Homes, Inc., supra.

In accordance with the above, we grant judgment in favor of plaintiff, Curtis Robertson, against Jimmy Walker Chrysler-Plymouth, Inc. and Chrysler Corporation, in solido, in the amount of $3,769.82, plus legal interest thereon from date of judicial demand; we grant judgment in favor of plaintiff, Curtis Robertson, and against Chrysler Corporation for the amount of $3,500.00 as attorney fees, plus legal interest thereon from date of judicial demand. We further grant judgment in favor of Jimmy Walker Chrysler-Plymouth, Inc. and against Chrysler Corporation for the amount of $3,769.82 and for $2,000.00 attorney’s fees, all with legal interest thereon from date of judicial demand.

All costs of these proceedings, at both trial level and appellate level, are assessed against defendant-appellee, Chrysler Corporation.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

The majority opinion denies plaintiff’s claim for damages resulting from his loss of use of his vehicle for the purpose of following his sporting interest in hunting and fishing. The denial is based on the case of Meadors v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). I am not convinced that the Meadors case applies under the facts of this case. However, for another reason this item of claimed damages should be denied. The reason is that the plaintiff failed to prove that his hunting and fishing activities were curtailed. First of all, there is no proof in the record on this point. Second, it is clear that except for one episode, Mr. Robertson continued to operate the Trail Duster for over 44,000 miles and he admitted that he had driven it about 12,000 miles when he brought it in the last time to the dealer in January, 1975. In fact, plaintiff had brought the vehicle in during the Fall of 1974 and Jimmy Walker told him to keep it until the hunting season was over and then bring it in which is precisely what the plaintiff did. Third, plaintiff testified that he had other vehicles similar to this vehicle. Therefore, he presumably was not without means of transport for fishing and hunting trips.

For the foregoing reasons, I concur in the majority opinion.

      . Additionally, in the event of an adverse decision, Jimmy Walker has appealed its third party demand against Chrysler Corporation.

      . Art. 2534. The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
      This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.
      Nor where the seller, not being domiciliated in the State, shall have absented himself before the expiration of the year following the sale; in which case the prescription remains suspended during his absence.

      . Mr. Harville was the service manager at Jimmy Walker. Neither he nor Jimmy Walker was called to testify at the trial.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    ST. JOHN THE BAPTIST PARISH POLICE JURY v. LOUISIANA & ARKANSAS RAILWAY COMPANY.
    No. 9755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1979.
    C. William Bradley, Jr., Reserve Atty., for plaintiff-appellee.
    Milling, Benson, Woodward, Hillyer & Pierson, W. Richard House, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

The plaintiff Police Jury sued the defendant railroad to be reimbursed for $982.80, the cost of 72 tons of “hot mix” of asphalt. The plaintiff contended that on September 20, 1976, the Police Jury and the railroad entered into a verbal contract whereby the former agreed to sell and the latter agreed to buy tbe hot mix needed to perform repairs on two railroad crossings within the parish. The railroad responded that the plaintiff Police Jury had agreed, as was customary, to furnish the hot mix without charge.

It was the position of the plaintiff that the agreement had been reached at a meeting of the Police Jury on September 20th. However, there was nothing in the minutes of the meeting concerning the alleged agreement. The record indicates that any agreement which might have been reached necessarily was oral.

At the trial, Robert Becnel, the secretary-treasurer of the Police Jury testified that he had attended the September 20th meeting. He stated that it was his understanding that the jury would provide labor to spread the hot mix at no charge but that the railroad would have to reimburse the jury for any amount put on railroad property. Brent Tregre, president of the Police Jury, testified that his understanding was that the Police Jury would assist the railroad in order to expedite the repairs; the railroad would do the crossing repairs, and the Police Jury would supply the hot mix with the understanding that the cost of the hot mix would be borne by the railroad. However, he also testified that there was no discussion as to whether the payment would be for all of the mix or just for that part used in a particular area. He stated that in the past the jury had made smaller repairs on crossings at their own expense with no reimbursement. He further acknowledged that there was no discussion that this operation would be any different from those in the past.

Henry Hymel, the parish manager, had also attended the September 20th meeting. He testified that the Police Jury had agreed to furnish the asphalt but that he did not hear any specific agreement about reimbursement. He also acknowledged that “no agreement was reached between the parties as to who would pay for the hot mix.”

The superintendent and section foreman for the railroad testified that their understanding was that the Police Jury would furnish the hot mix and spread it using their machinery at no cost to the railroad. They stated that they never agreed to reimburse the parish for the hot mix used, not even for that used between the ties much less for that used for the convenience of automobiles using the crossing. It has nothing to do with the operation of the trains.

La.C.C. Articles 1797 and 1798 state that in order to have a valid contract there must be consent by both parties, the will of both parties uniting on the same point.

Both parties must agree to the substantial elements of a contract in order to have a binding agreement. Allison v. Pick, 229 La. 524, 86 So.2d 179 (1956); Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3rd Cir. 1975); McMorris v. Pepperdene, 292 So.2d 892 (La.App. 1st Cir. 1974), writ refused 294 So.2d 840; Pooler Building Materials, Inc. v. Hogan, 224 So.2d 62 (La.App. 1st Cir. 1971); Directional Advertising Services, Division of Ebsco Indus., Inc. v. Fairfield, 248 So.2d 388 (La.App. 4th Cir. 1971).

Contracts are founded on the agreements of parties and where they misunderstand each other, there is no contract. Cheramie v. Stiles, 215 La. 682, 41 So.2d 502 (1949); Luria Brothers & Co., Inc. v. Capitol Steel Inc., 225 So.2d 630 (La.App.), writ refused 254 La. 920, 922, 228 So.2d 481, 482; Custom Builders & Supply, Inc. v. Revels, supra.

The record in this case indicates an absence of mutual understanding between the ■respective parties. Even members of the Police Jury, for example, testified that there was no specific discussion that this situation was to be different from those in the past where they sought no reimbursement for the hot mix. Indeed they testified the Jury would “furnish” the hot mix. The railroad obviously was under the impression that this agreement was the same as previous ones.

The plaintiff here, as in all cases, had the burden of proving his case by a preponderance of the evidence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973); Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971). A review of the evidence in this case indicates that the plaintiff did not meet its burden of showing the existence of the contract. Therefore, the decision of the trial court is reversed.

REVERSED.

      . “Article 1797. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.”

      . “Article 1798. As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such ■. contract; the will of both parties must unite on the same point.”


author: MARVIN, Judge.

text:
    DON COLEMAN CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. MID-SOUTH MORTGAGE, INC., Defendant-Appellant. MID-SOUTH MORTGAGE, INC., Plaintiff-Appellant, v. Don S. COLEMAN and Dora Coleman, Defendants-Appellees.
    Nos. 13775, 13776.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by James E. Bolin, Jr., Shreveport, for ap-pellees.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

These consolidated cases between a mortgage company and a builder arose because the builder changed plans for the financing of a $2,000,000 apartment complex from a government-funded loan by the mortgage company (Mid-South) to a conventional loan by a bank. When the mortgage company obtained a refund of $15,000 as a,portion of the commitment fee it had paid the government, the builder sued the mortgage company for a refund. In turn, the mortgage company sued the builder for a $36,200 financing and service fee which it claims it had “earned” and to which it would have been entitled had the builder made the government funded loan as planned.

The lower court rendered judgment in favor of the builder for $10,000 without interest, in effect allowing the mortgage company to retain $5,000 for its services to the builder and otherwise rejected the demands of each litigant. The appeal of the mortgage company was answered by the builder, who seeks to increase the judgment to an amount equal to the $15,000 refund.

Under the National Housing Act (now 12 U.S.C.A. § 1701 et seq.), the government appropriates and provides funds to lenders at a lower than market interest rate to encourage the construction of multi-family housing. Lenders apply for approval of funds for proposed construction and “purchase” a commitment of funds for a specified period of time (in this case, three years) by paying a fee to the government. In this case the fee was two percent of the amount applied for, or $40,112. If the commitment is cancelled before its time period expires the lender may obtain a partial refund from the government. In this case $15,042 was refunded.

The builder here had done business with the mortgage company on other projects before the planning of this project was begun in 1974. This was the first project of these parties, however, which was to be funded under section 221 d(4) of the National Housing Act. The Act is silent with respect to the borrower’s right to claim refund from the mortgage company of amounts paid the mortgage company by the borrower. These parties expressed no agreement on a refund during the time they were planning for 221 d(4) funding from October 1974 to mid-July 1975.

The apartment project is known to those involved as Orleans Square. Preliminary planning began in October, 1974. On December 19, 1974, Mid-South mailed the initial application to the Federal Housing Administration’s Shreveport office (FHA) with supporting documents. This produced what is called a SAMA (Site Appraisal and Market Analysis) letter from FHA which was explained as the government’s approval of the feasibility of the project and its tentative willingness to insure the financing of the project with government funds by and through GNMA (Government National Mortgage Association). The SAMA letter from FHA was dated January 23, 1975. Telephonic request by the mortgage company to GNMA after the SAMA letter issued resulted in GNMA’s acceptance of the mortgage company’s offer to purchase a commitment of government funds. The mortgage company is referred to by GNMA sometimes as the seller of the mortgage securing the loan. This acceptance established generally that GNMA would allow the mortgage company to purchase a commitment for three years beginning January 24, 1975, of funds at 8.25 percent interest expressly for the financing of the Orleans Square project. The amount GNMA would commit, subject to FHA requirements, was shown as $2,005,600 and the commitment fee required by GNMA was $40,112.

About the time the FHA SAMA letter and the GNMA commitment issued, the mortgage company bound itself to the builder to provide interim and permanent financing for the project and requested and obtained from the builder his check payable to the mortgage company for an amount equal to the commitment fee. The mortgage company then sent its own check to GNMA to purchase the commitment. The mortgage company then began preparing additional data for the multitude of forms required by FHA. The builder and the mortgage company sought to have FHA insure or guarantee the $2,000,000 figure, 90 percent of the estimated cost of the project. On April 17, 1975, FHA agreed to insure or guarantee only $1,800,000, or 80 percent, of the estimated cost of the project. The builder, however, made no complaint regarding the reduced guarantee of the government and as hereafter mentioned, constructed the apartment complex with a $1,500,000 conventional bank loan.

A few days before July 21, 1975, the builder informed the mortgage company that he did not want to proceed with the 221 d(4) financing because of “too much red tape”. The builder confirmed this by his letter of July 21, 1975, to the mortgage company and expressly requested the mortgage company to terminate the commitment which had been purchased (“our . commitment”, the letter said) “. and refund monies to [the builder].” The refund of $15,000, which was made payable to the mortgage company by GNMA on July 22, 1975, is the subject of this lawsuit.

Sometime before July 14,1975, the builder made application to a Shreveport bank for a conventional loan, for on that date the bank wrote the builder that it was willing to lend him $1,500,000 at 9.5 percent interest. The loan was eventually made and the project was constructed.

The builder contends that he should have judgment in his suit for the refund.

The mortgage company contends that it should have judgment in its suit for the $36,200 financing fee or alternatively, for an amount equal to the reasonable value of its services and its undertakings to and for the builder.

The lower court correctly concluded that there was no understanding between the litigants regarding the contingency of any refund. The lower court also correctly found no general practice to exist in the industry of this type financing for construction regarding refunds of amounts paid in this situation. We find that there was a general practice in the industry that the builder would be charged by the mortgage company an amount at least equal to the fee the mortgage company was required to pay the government for its commitment of the funds applied for. In this case the mortgage company committed itself to provide interim and permanent financing under this type project when the government conditionally agreed to guarantee or to insure the amount applied for. With the government guaranteeing or insuring the loan, the security (mortgage note) to be signed at final closing would become more merchantable by the mortgage company, who in this case could have sold the loan after closing and retained the status of servicer of the loan or who could have retained the position of the secured creditor itself.

Except in cases where the mortgage company performs more than routine services for the builder, the fee charged the builder for the mortgage company’s commitment to provide interim and permanent financing is not more than the fee charged by the government for the purchase of the commitment. We also find that the parties in such instances, and whether the mortgage company is serving as mortgage' banker (which itself commits to provide interim and permanent financing) or as mortgage broker (which attempts to find others to make these commitments), contemplate that the mortgage company’s payment for its services and commitments will come from the financing fee which is usually paid by the builder-borrower when the final closing of the loan occurs. Nothing more than routine services were contemplated by these litigants.

The check by which the builder paid the mortgage company ($40,112) was in the exact amount of GNMA’s charge for the commitment fee. Nonetheless, this payment is not conditioned or qualified in any way. It was payable only to the mortgage company and in the absence of proof that it was qualified or conditioned, we must conclude that it was in payment of the commitment of the mortgage company to the builder to provide interim and permanent financing for the apartment project and of the mortgage company’s obtaining and purchasing the government commitment and preparing to the government’s satisfaction the multitude of forms necessary to acquire the government’s funding or insuring of the loan. The mortgage company here performed more than 50 percent of its services before the builder changed his mind. If the original method of financing had been consummated as planned, however, the mortgage company would have received nothing from the commitment fee.

In view of this mortgage company’s experience with this builder and of the experience of both with government funded or government insured financing of single family residences, we find both litigants were fully aware that the builder was privileged to change his plans for the government funded or government insured financing of the cost of the project at any time before the final closing of the loan. In other words, while the government may have bound itself by the commitment to permanently finance or insure the financing of the project, the builder was at no time bound to consummate this type financing. While the mortgage company may have bound itself to provide interim and permanent financing in the manner contemplated, the builder was not precluded from changing the method of financing.

The mortgage company did what the builder desired to be done until the builder changed his plans in July, 1977. Whether or not the builder was in good faith in changing his plans is material to the measure of damages, and is not material to the question of whether or not the mortgage company may recover from the builder. CC 1934(1).

In one earlier instance of government funding of this builder’s construction of single family housing (different from 221 d(4) multi-family housing), this builder agreed with this mortgage company to forfeit or waive his rights to a refund of the amount paid the mortgage company to purchase the government commitment and for the commitment of the mortgage company to provide financing.

The object of the contract between the mortgage company and the builder has been stated. The mortgage company agreed to provide interim and permanent financing for the builder’s project with government funded or government insured financing, to purchase the commitment from the government, and to complete the necessary paperwork to accomplish this. The builder would pay the mortgage company not more than what the government agencies required the mortgage company to pay during the time before final closing and upon final closing the builder would pay the mortgage company a two percent financing fee in addition to other fees which might be required.

“Where the object of the contract is anything but the payment of money, the damages due 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 ... 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.” CC Art. 1934(1).

In A. E. Landvoight, Inc. v. La. St. Emp. Ret. S., 337 So.2d 881 (La.App.1st Cir. 1976), the Retirement System contracted with the plaintiff, a mortgage banker, to service its loans in a much more detailed manner than here, but even there a borrower-builder from the System was not obligated to accept the servicing of the System’s loan by that mortgage banker. The System was obligated to request a borrower-builder to process the loan application through this mortgage banker. After the mortgage banker had serviced one application of a particular builder and had received a fee for that service, the same builder, but under another corporate name, made application to the System to borrow $13,500,000. The System did not request the builder to process that application through the mortgage banker, but processed the application itself, closed the loan, and collected a fee from the builder of $405,000. The mortgage banker sued for its one percent fee ($135,000) because of the System’s failure to request the builder to process the application through the mortgage banker.

Applying the principles of 1934, the Court of Appeal allowed compensatory damages of $5,000 to the mortgage banker, recognizing that no fee would have been owed the mortgage banker if the borrower had denied the request of the System that the mortgage banker process the application. The mortgage banker there offered no detailed proof of its expenses in processing such an application and the Court of Appeal found that the mortgage banker had not sustained a loss of the entire fee.

Likewise in this case, the mortgage company has not shown its usual expenses in processing such an application as this builder’s. The evidence also preponderates that the conventional bank loan made to the builder was not made substantially upon the strength of data prepared by the mortgage company, but upon the personal guarantee of the builder and his wife and upon the security of the project. There was no special benefit derived from these services in respect to obtaining the bank loan. The mortgage company is not entitled to the $36,200 amount it has sued for, also because both parties were aware that the builder was not obligated to consummate the government funded or government insured loan. These are “damages” not within the contemplation of the parties. CC 1934. See also Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), discussing the elements of unjust enrichment.

We have found, however, that it is a general practice in the industry that the mortgage banker, for its commitment to the builder, charge the builder a fee at least equal to what the mortgage banker is required to pay the government for the government commitment. It is reasonable for us to suppose that the parties were silent upon the question of compensation for the mortgage banker in the event the builder chose not to consummate the government funded or insured loan for whatever reason, because they intended to let equity dictate the incidents of these details. See CC Arts. 1903, 1963 through 1967. These parties contracted, but did not provide this detail.

If the commitment purchased from the government had been cancelled earlier, the amount of the refund would have been greater and the services the mortgage company would have provided would have been less. If the commitment had been cancelled later, the refund would have been lesser and the services of the mortgage company would have been greater. It would be inequitable to say that no matter when the builder instructed the mortgage company to cancel the commitment, one or the other should be entitled to the whole of the refund obtained from the government. It would likewise be inequitable to say that the mortgage company would be entitled to nothing for its services in the event the builder elected not to proceed further at any given time, whether or not a refund would have been paid at that time by the government.

The parties should have contemplated what, if anything, the mortgage company might have been owed for its services in the event the builder elected, as he was privileged to do, to cancel the commitment purchased from the government. What they should have provided for, the courts may provide. CC Art. 1965.

The result below is correct. The mortgage company showed only generally the extent of its services and we find no abuse of discretion in the lower court award which, in essence, is $5,000 for the services rendered by the mortgage company to the builder. The award is neither too high nor too low and does substantial justice.

The judgment of the lower court in each case is affirmed at the cost of the appellant in each case.

      . Our figures are rounded to the nearest hundred. This $36,200 figure is two percent of $1,800,000, the amount the government agency eventually committed to fund. If the loan had been finally closed under this method of funding, the builder-borrower would have paid this amount to the mortgage company as a financing fee, in addition to other fees, all of which were listed on the initial application to the government, which was signed by both litigants. The amount applied for was more than $2,000,000. The amount eventually committed was $1,800,000. The financing fee which is paid at the closing of the loan is a different fee from, and is in addition to, the fee paid for the commitment.

      . These cases were tried before, but not submitted to, a district judge who resigned his position. They were submitted to and decided by another district judge about 14 months after trial. See and compare Moore v. Travelers Indemnity Co., 352 So.2d 270 (La.App.2d Cir. 1977) with State Through Dept. of Highways v. McInnis, 360 So.2d 887 (La.App.3d Cir. 1978). Art. 5, § 10, La. Constitution; CCP Art. 2164.

      . Between April 17 and July 21, 1975, while he was troubled with lower back pain and was undergoing treatment, the builder nonetheless continued to work on the project with the mortgage company, the architect and others involved. The record shows that he corresponded with the FHA on April 29 and June 20 and with the Utility Commissioner of Shreveport on May 2 and that he contracted with the City of Shreveport on May 13, 1975, concerning Orleans Square.


author: JONES, Judge.

text:
    Arlis D. SCOGGIN, Plaintiff-Appellant, v. Leon W. BAGLEY, Defendant-Appellee.
    No. 13777.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Colvin, Hunter, Brown, Plummer & Means by David B. Means, III, Mansfield, for plaintiff-appellant.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for defendant-appel-lee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, Arlis D. Scoggin, appeals a judgment rejecting his demands to invalidate a mineral top lease because of error and return to him the consideration paid for it. We affirm. The lease was granted by defendant, Leon W. Bagley, on December 5, 1977, covering 360 acres of land in DeSoto Parish, on which there was an existing lease dated December 8, 1972 for a 5 year primary term. The top lease was on a Bath Lease Form and contained the following typed provisions:

“This lease to become effective when present lease expires dated 12/8/72 (5 yrs.).
All monies paid are nonrefundable.”

The basis for plaintiff’s suit for cancellation is that he had been advised by the Heards, a father-son team of lease brokers, alleged to be defendant’s agents, that the December 8, 1972 lease would expire by its own terms in the event no drilling commenced on the leased premises prior to the expiration of the primary term. Plaintiff testified he knew there were no drilling rigs available and considered it extremely unlikely that drilling would commence prior to December 9, 1977. Plaintiff contends the principal cause of his acquisition of the top lease was his firm expectation based upon representations of defendant’s agents that absent the commencement of drilling upon the leased property prior to midnight December 8, 1977, that his top lease would become a valid, viable existing lease on the subject property. Though the plaintiff, defendant and the Heards were unaware of it, there was a Louisiana Conservation Commission order dated October 17, 1977, creating 16 production units for the Rodessa formation, including one 640 acre unit encompassing the 360 acres included in the top lease, and in which unit, though not on the top leased acreage, there was production. This had the effect of extending the primary term of the December 8, 1972 lease whether or not any drilling occurred upon the property subject to the top lease prior to the elapse of 5 years from December 8, 1972. These circumstances are the basis for plaintiff’s contention that the top lease is invalid because of his error as to principal cause.

Plaintiff assigns as error the trial court’s finding (1) that the defendant made no false representation to the Heards or the plaintiff that the only way the primary term in the 1972 lease would be extended would be by the commencement of drilling activities prior to its expiration on December 8, 1977 (2) that the Heards were not defendant’s agents and, therefore, their representation to plaintiff could not be attributable to him, and (3) that the plaintiff’s lease right would come into existence with the expiration of the December 8,1972 lease, rather than finding the top lease invalid because of plaintiff’s error as to the principal cause, this being his belief that the primary term of the 1972 lease would expire December 8,1977, in absence of drilling activity being commenced upon the leased property prior to that date.

In October 1977, Dugan Heard, a lease broker of DeSoto Parish, called defendant and inquired of him if he would consider top leasing the 360 acre tract involved in this litigation prior to the expiration of the December 8, 1972 lease. The defendant indicated he would consider leasing the tract for $30 per acre. Heard secured one potential lessor and brought him to defendant’s home in November 1977, but this man refused to take the lease when defendant advised him that it was a top lease and that the lease to which it was subject might run out or might never run out. Dugan Heard contacted several other parties about the Bagley top lease and through one of these persons, plaintiff acquired the information of its availability. Plaintiff called Dugan Heard and met with him and his son, Joe Heard, in Mansfield on December 5, 1977. At this time the Heards advised plaintiff that the primary term of the 1972 lease would expire December 8,1977, unless prior to that time drilling activities were commenced upon the leased premises. The Heards testified they were told this by defendant. Plaintiff gave the Heards instructions to go and secure the lease from Bag-ley and gave them the money to pay for it based upon a cost of $65 per acre. The Heards went to the home of Bagley in rural DeSoto Parish and there typed up the top lease and gave Bagley $30 per acre for it. Joe Heard, who prepared the lease, incorporated, at the request of Bagley, the clause in the top lease that it would not become effective until the expiration of the December 8,1972 lease and that no money paid for it would be refunded. After Bagley executed the lease, the Heards returned to Mansfield with the lease which they delivered to plaintiff who had been waiting for them while they went to secure the lease. Plaintiff never discussed the top lease with defendant until after it was secured.

The defendant had told the Heards that he was only interested in a top lease if he had anything to lease. He pointed out to them the existence of substantial preparations for a well site on the leased premises and advised them of some litigation which delayed the drilling attempt. Defendant gave this information to the Heards as reasons why the lease might not expire on its anniversary date. Defendant testified that he urged the Heards to have an attorney check the public records to be sure of what he had available for a top lease. Defendant’s warning to a potential lessor brought to his home by the Heards that the 1972 lease might run out or might never run out, resulted in the prospect refusing to proceed with the lease. Defendant testified in response to persistent cross-examination that he had never told the Heards that the only reason that the 1972 lease would not expire by its own terms would be the commencement of a well before the anniversary date. Defendant testified that “May” (apparently the owner of the 1972 lease) tried to get the leased acreage into a unit. Defendant’s testimony and corroborating circumstances adequately support the trial judge’s finding that defendant did not make the representations to the Heards nor to the plaintiff that except for intervening drilling activity the top lease would become viable December 9, 1977.

Plaintiff contends that the Heards were the defendant’s agents and he is bound by their statements to plaintiff that the 1972 lease would expire in the event there was no drilling activity conducted upon land subject to it prior to the expiration of the primary term. Neither defendant, nor the Heards, testified there was any agency-relationship between them. Defendant did not pay them anything from the money he received for the top lease. The Heards were given the money by plaintiff and by him sent to purchase the lease on his behalf. He gave them $65 per acre to make the purchase and they only used $30 per acre retaining the balance as their fee. The evidence established that plaintiff was unaware of what part of the $65 was retained by the Heards. One of the Heards testified they were to receive a Vk override for their services in securing the lease. These facts which could be construed to establish the Heards were the agents of the plaintiff adequately support the trial judge’s finding that the Heards were not the agents of defendant and representation made by them to plaintiff cannot be attributable to the defendant.

Plaintiff’s third assignment of error is directed to the trial court’s refusal to invalidate the top lease because of the plaintiff’s error as to the principal cause or motive in his execution of the contract. C.C. Art. 1823 recognizes that errors may exist with regard to all circumstances and facts related to contracts, but provides that it is only those errors related to a principal cause for making of the contract which will invalidate it. Based upon this Code Article, the plaintiff contends the contract of top lease is invalid for the reason he entered into it having as a principal cause for making the top lease the conviction that it would become a viable lease unless drilling activity was conducted upon the property subject to the 1972 lease before the expiration of the primary term on December 8, 1977.

The plaintiff urges that he was in error as to this principal cause for the reason that the October 17, 1977 unitization order, which was recorded on October 27, 1977, placed the top leased acreage into a unit with acreage where production was in existence and extended the primary term of the 1972 lease so long as production continued in the unit. Under these circumstances, plaintiff argues his error by the terms of C.C. Art. 1823 entitles him to have the top lease declared invalid and to a refund of the consideration paid for it.

C.C. Article 1826 and our jurisprudence provide a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract where the other party knew or should have known it was the principal cause. Savoie v. Bills, 317 So.2d 249 (La.App. 3d Cir. 1975); Nugent v. Stanley, 336 So.2d 1058 (La.App. 3d Cir. 1976).

In the decision of Talley v. Blake, 322 So.2d 877, 879 (La.App. 1st Cir. 1975), the court stated:

“This is so in view of the fact that it is not every error, whether of fact or law, that will invalidate a contract. To do so it must be in some point which was a principal cause for making the contract, such as the motive therefor, LSA-C.C. Art. 1823, and in addition, the other party must be apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it, LSA-C.C. Art. 1826.”

The words inserted in the top lease by defendant establish that he was motivated by one principal cause, and that was the execution of a top lease which would become effective upon the expiration of the 1972 lease. “This lease to become effective when present lease expires dated December 8, 1972 (5 yrs.)” These words inserted in the lease were placed there by defendant for the purpose of emphasizing to plaintiff that he was getting a top lease totally subordinate to the 1972 lease. The defendant inserted the words “All monies paid are nonrefundable” in the top lease for the purpose of making it very clear to plaintiff that whatever may occur with regard to delay in the top lease becoming, effective, that under no circumstances could the lessee expect a refund of the consideration paid for it.

Defendant testified that one of the reasons for his incorporating this language in the lease was because of the failure of the lease broker to bring the lessee to his home at the time the lease was executed. The defendant said because he didn’t have the opportunity to personally discuss the top lease with plaintiff he included the additional clauses in the top lease in order that plaintiff would understand the lease he was acquiring was subordinate to the 1972 lease. The reasonableness of this testimony by defendant is established by the fact that he so clearly explained to the one potential lessee the hazards of the top lease until this prospect declined to proceed with the acquisition of the top lease.

The circumstances surrounding the execution of the top lease and the manner in which it was prepared establishes the defendant was not aware, nor under the circumstances could he have been presumed to have been aware, that a principal cause of the plaintiff’s acquisition of the sublease was related to the primary term of the 1972 lease only being extended by drilling activity upon the property subject to it prior to December 8, 1977. The plaintiff’s unilateral error as to the principal cause cannot serve to invalidate the top lease.

The plaintiff is an oil and gas man of some 30 years experience and prior to his obtaining the top lease viewed the area where the leased property was located. He, no doubt, saw the wells in the vicinity. The trial judge found as a fact that he knew the area was a “hot one” and he had been advised by the Heards of another potential lessee and this was a factor in causing his hasty acquisition of the lease. The bonus he paid for the top lease was substantially less than he would have paid had he been securing a lease not subordinate to an existent viable lease. Plaintiff was knowledgeable as to the various ways in which the term of an oil and gas lease could be extended beyond the period which was recited in the lease as the primary term. He had to be aware that production on any acreage in a unit created by the Louisiana Conservation Commission has the effect of extending the primary term of other leases covering other acreage in the unit though no producing well is located thereon. Plaintiff learned of the existence of the unit within 2 or 3 days after he acquired the top lease when he had the mineral title examined. As an experienced oil and gas operator he should have had this examination performed before he made the top lease purchase. The Conservation Commission order was recorded on October 27, and its existence could have been determined prior to that date by addressing an inquiry to the Louisiana Conservation Commission.

A unitization order could have been issued by the Louisiana Conservation Commission after plaintiff acquired the top lease on December 5th, and prior to December 9th, and in such event it would have extended the expiration of the primary term just as effectively as would the commencing of drilling activities during this period, yet plaintiff asserts he bought the top lease upon representation that it would blossom into a viable lease on December 9, 1977, subject only to the commencement of drilling activities. The top lease contract did not contain this limitation. On the contrary, it specifically pointed out that it was to be effective when the December 8, 1972 lease expired and that no money was to be refunded. When the Heards delivered the lease to plaintiff this added language to the Bath Form was pointed out to him and he accepted the lease.

Plaintiff will have a valid lease when the December 8, 1972 lease expires as is provided by the unambiguous provisions of his top lease. “Courts are not created to relieve men of their bad bargains made. Where a clause of a contract is clear and unambiguous, ‘the letter of it should not be disregarded under the pretext of pursuing the spirit’.” Lama v. Manale, 218 La. 511, 515, 50 So.2d 15, 16 (La.1950); Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (La.1970).

AFFIRMED at appellant’s cost.

      . C.C. Art. 1823: “Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

      . C.C. Art. 1826: “No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it (it was).”


author: PRICE, Judge.

text:
    SMITH-HEARRON, Plaintiff-Appellant, v. FRAZIER, INC., and William Elmo Frazier, Jr., Defendants-Appellees.
    No. 13778.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    Gahagan & Gahagan, by Henry C. Gaha-gan, Jr. Natchitoches, for plaintiff-appellant.
    Sanders & Castete, Ltd., by Martin S. Sanders, Jr., Winnfield, and Richie & Richie, by John A. Richie, Shreveport, for defendant-appellee William Elmo Frazier, Jr.
    Before BOLIN, C. J., and PRICE and MARVIN, JJ.
   PRICE, Judge.

This appeal concerns whether the trial court properly sustained an exception of res judicata in dismissing the demand of plaintiff, Smith-Hearron, against William Elmo Frazier, Jr., seeking to have Frazier declared solidarily liable for the judgment rendered against Frazier, Inc., in a prior suit brought by plaintiff against multiple defendants including Frazier and Frazier, Inc., for damages arising out of a contract to perform architectural services.

The objectives sought by plaintiffs and disposed of by the court in the prior suit are stated in the following pertinent portions of the reasons for judgment:

This suit is brought by Smith-Hearron, a partnership, composed of licensed architects who engaged in that business through the partnership, against Frazier, Inc., Martin S. Sanders, Jr., William Elmo Frazier, Jr., American Community Development Corporation and Lionel Smith. Plaintiff’s complaint is that it had a contract with Frazier, Inc., to do and perform certain services as architect on a housing project in the City of Winnfield, that plaintiff fulfilled all of its obligations under that contract and was not paid therefor, and that all of the parties defendant herein conspired together, to transfer the property on which the housing project was to be erected to American Community Development Corporation to deprive plaintiff of its fee under the terms of said contract and to defeat plaintiff’s lien on the property.
Many preliminary matters were tried and disposed of, and, during the course of all of those, the Court awarded plaintiff judgment against Frazier, Inc. as prayed for in the amount of $130,000.00 as a result of its recalcitrance in failing to comply with discovery orders of the Court. The case was subsequently tried on the merits as to all other defendants.
‡ * # * *
The Court has already awarded judgment against Frazier, Inc. in this matter and that judgment is final. From all of the evidence before the Court, I now find that Frazier, Inc. and William Elmo Frazier, Jr. are one and the same, that Frazier, Inc. was the alter-ego of William Elmo Frazier, Jr. and a mere instrumentality used by him to effect his purposes. Counsel for plaintiff is correct when he astutely observes that the corporation was merely a name used for the transactions of Frazier’s own personal business, the corporation issued no stock, no Board of Directors meetings were validly or legally called or transacted and the Board of Directors performed no board functions.
Therefore, judgment in the amount of $30,000.00 with legal interest thereon from judicial demand and all costs of these proceedings will be awarded in favor of plaintiff and against William Elmo Frazier, Jr. in this matter.

Plaintiff contends in this action that the piercing of the corporate veil in the prior suit and the awarding of judgment against Frazier personally for damages in the sum of $30,000 should entitle plaintiff to a declaratory judgment that Frazier is also soli-darily liable with Frazier, Inc., for the entire $130,000 judgment, rendered against the corporation in the prior suit.

The trial court rejected this argument and found the judgment rendered against Frazier in the prior suit had the effect of resolving all claims for damages by plaintiffs against Frazier, Inc., arising out of the breached contract. Therefore, the court sustained the exception of res judicata. We affirm.

La.C.C. Art. 2286, the source of the exception of res judicata, 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.

From an examination of the record in the prior suit, it is evident that plaintiff alleged and sought to prove that Frazier was personally liable for all damages flowing from the breach of their contract with Frazier, Inc., because the corporate status of Frazier, Inc., was a sham. The damages itemized by plaintiff were $30,000 for breach of the architectural contract for services furnished and $100,000 for violation of plaintiff’s civil rights because of a conspiracy alleged between Frazier and other defendants in that action.

The cause of action of the present suit is in reality the same, to hold Frazier personally liable for the same reason he was found liable in the prior suit. The distinction which plaintiff seeks to make between the two suits to prevent the application of res judicata relates to whether the full extent of the damages claimed were actually considered and became an object of the judgment rendered against Frazier personally. The argument is based on the expression of the trial court in its reasons for judgment that although sufficient evidence was presented to justify a default judgment in the amount of $130,000 as to Frazier, Inc., there was not any evidence presented on trial of the merits to warrant judgment in excess of $30,000 against Frazier personally. Plaintiff contends that as no evidence was presented for this additional amount of damages, it was not actually litigated and the exception of res judicata was improperly sustained. Plaintiff relies on the recent decision of the Louisiana Supreme Court in Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978), and the decision of this court in Reed v. Employers Mutual Liability Ins. Co. of Wis., 303 So.2d 506 (La.App. 2d Cir. 1974).

We do not find Sewell and Reed controlling. They were decisions in the area of workmen’s compensation litigation in which the court applied the liberal interpretation allowed in regard to the compensation statute to prevent a claimant from losing his right to recover medical expenses for which no evidence had been submitted during the trial of the case. We do not find it appropriate to extend the rule in Sewell and Reed beyond the field of compensation litigation.

Plaintiff had the opportunity to present evidence of the entire amount of damages resulting from the subject transaction and should not be allowed to relitigate the issue of damages.

The basic requirements set forth in La. C.C. Art. 2286 for the application of res judicata have been met in this instance, and we therefore affirm the judgment sustaining the exception and dismissing plaintiff’s demands. Cost of this appeal are assessed to plaintiff.


text:
    Reginald L. SIMMONS, Plaintiff-Appellee, v. STATE of Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 13779.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Joseph T. Dalrymple, Alexandria, for defendant-appellant.
    James G. Bethard, Coushatta, for plaintiff-appellee.
    Before BOLIN, C. J., and HALL and JONES, JJ.
   JONES, Judge.

Defendant, Rockwood Insurance Company, workmen’s compensation insurer of the State of Louisiana Department of Transportation and Development, appeals a judgment against it for total and permanent workmen’s compensation benefits, penalties and attorney’s fees awarded in favor of plaintiff, Reginald L. Simmons, an employee of the Louisiana Department of Transportation. We affirm.

Plaintiff sustained a protruded disc while at work for the Department of Transportation. Plaintiff was required to push carts loaded with samples of concrete and to lift the individual samples weighing approximately 30 pounds each during a normal workday. He was doing this work when he was injured. Two orthopedic physicians testified on behalf of plaintiff that because of his injury he could not return to the same or similar work he was performing at the time of his accident. These physicians testified that plaintiff was capable of doing light work which did not require heavy lifting, pushing or bending.

Appellant assigns as error the trial court’s determination that plaintiff was totally and permanently disabled as result of his injuries when the medical testimony establishes that he is capable of doing light work, though dissimilar to that which he was performing at the time he was injured.

Appellant’s contention is based upon the 1975 amendment to the Louisiana Workmen’s Compensation Act which changed the definition of total and permanent disability. In the decision of LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App.1977) this amendment was explained as follows:

“Prior to the 1975 amendment, our Workmen’s Compensation Law LSA-R.S. 23:1221(1)(2) and (3) defined temporary total, permanent total and partial disability and fixed the benefits therefor as follows:

“ ‘(1) For injury producing temporary total disability to do work of any reasonable character, sixty-five per cen-tum of wages during the period of disability, not beyond three hundred weeks.
“ ‘(2) For injury producing permanent total disability to do work of any reasonable character, sixty-five per cen-tum of wages during the period of disability, not beyond four hundred weeks.
“ ‘(3) For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not beyond three hundred weeks.’

“As amended by Act 583 of 1975, the above mentioned statutory provisions now provide in pertinent part as follows:

“ ‘(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“ ‘(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“ ‘(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1,1975, and on or before August 31, 1976.’
“It appears the 1975 amendment has made a significant change in the statutory definition of temporary total and permanent total disability. We find that amended Section 1221(1) and (2), above, define total disability, whether temporary or permanent, to mean disability to engage in any gainful occupation whether or not the same or one similar to that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee was fitted at the time of the injury, either by education, training or experience. We understand the definitions to mean that an employee is not totally disabled, either temporarily or permanently, unless he is disabled from performing any gainful work whatsoever. We so find because the amended statute employs the phrase ‘disability ... to engage in any gainful occupation for wages . . . ’
“Section 1221(3), above, as amended in 1975, defines partial disability as partial disability to perform the duties in which the employee was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience. We interpret the definition of partial disability to mean that if an injured employee is unable to perform his usual or customary occupation, but can engage in some other gainful employment for which he is fitted by education, training or experience, he is only partially disabled.”
“It appears the amended statutory definition of partial disability is substantially the same as total disability, as the latter term was judicially interpreted prior to the 1975 amendment. Under prior jurisprudence, an employee was considered totally disabled when he could not perform work of the same or similar description in which he was engaged when injured, notwithstanding his ability to earn the same or higher wages in a different line of endeavor. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952); Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950).”

The appellant contends the definition of “permanent total disability” as contained in 23:1221(2) after its amendment by Act 583 of 1975 requires an employee in order to be adjudicated totally and permanently disabled to be disabled to “ ‘engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee, was customarily engaged when injured’ ”. The appellant asserts because plaintiff could engage in light work, though dissimilar to that being performed by him at the time of injury, he is not totally and permanently disabled under the terms of 23:1221(2).

Appellant argues the following statements from the reasons of the trial judge established that he was incorrectly applying the definition of total and permanent disability as it existed prior to the 1975 amendment to the plaintiff’s condition:

“It is the contention of the Employer and the Insurer that the alleged accident of July 11, 1977, is highly suspect and that there is an absence of proof of an actual injury suffered by Simmons on that day. This Court does not agree with this contention and finds that the evidence shows by a preponderance thereof Simmons suffered an accident and has been disabled to do the type of work he was engaged in at the time of his injury, [emphasis supplied]
Simmons is entitled to the compensation provided by LSA-R.S. 23:1221-2.”

We do not find the underlined portion of the judge’s reason incompatible with the amended act. The fact that this factual finding standing alone cannot lead to the conclusion that plaintiff is totally and permanently disabled doesn’t make this statement incorrect in the context where it appears. This finding is made by the court in answer to the appellant’s contention that plaintiff did not establish an accident and both are discussed in the same paragraph. The legal decision that plaintiff is entitled to total and permanent benefits is in a separate paragraph and it is merely a coincidence that the paragraph follows the factual findings in the reasons for judgment about which appellant complains. Under these circumstances, we find this complaint by appellant that the trial judge did not understand and incorrectly applied the law, without merit.

The thrust of defendant’s contention is that plaintiff, who has done no work since July 11, 1977, the date of his accident, should be declared partially disabled within the provisions of LSA-R.S. 23:1221(3) rather than permanently disabled under the provisions of 23:1221(2). The appellant then contends that once plaintiff is properly categorized that he should be penalized in some manner not articulated in brief for his failure to show a reasonable basis for his failure to secure light employment so that his earning from it could be used in the formula contained in 23:1221(3) (66%% of the difference between what he actually earned from light work and what he earned at the time of injury) to reduce the compensation liability of the appellant. Appellant cites Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977) which recognizes the problem that could be created by a partially disabled worker who arbitrarily refused to seek light work. The Kilbourne court found that plaintiff was partially disabled rather than totally disabled, but did not have to address the problem posed because it did not find the “plaintiff’s failure to seek, subsequent employment so as to reduce defendant’s liability is unreasonable”. We find it unnecessary to determine the effect of a partially disabled employee’s unreasonable failure to secure dissimilar employment for the reason we conclude the trial court correctly found plaintiff totally and permanently disabled within the contemplation of LSA-R.S. 23:1221(2) as amended by the 1975 act.

The law prior to the 1975 amendment was well established that an employee who endured substantial pain while performing the same or similar work as that which he was doing at the time of his injury, was totally and permanently disabled just as though he was not capable of performing the work at all.

In the decision of Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3d Cir. 1977) an employee who was injured while working as a welder’s helper was found to be totally and permanently disabled under the amended statute, even though he was thereafter capable of working as a welder. The employee was in substantial pain while working as a welder. The decision held that an employee doing dissimilar work in substantial pain and discomfort under the amended act was in the identical position as the employee working in pain on the same job under the act before it was amended, both are construed to be totally and permanently disabled. The reason behind the decision is that a man is not required to work in substantial pain, nor should he be penalized when he does, and the legislature did not intend to change this jurisprudential rule with the 1975 amendment to the Louisiana Workmen’s Compensation Act.

The rationale of Phillips v. Dresser, supra, has been followed in the decision of Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La.App. 3d Cir. 1978) where a workman injured performing farming activity was considered totally and permanently disabled, even though he was capable of functioning as a police officer when the performance of this dissimilar work was done in substantial pain.

The plaintiff, who had been employed by the Department of Highways for more than 20 years, had a high school education and during the past had performed office work sitting behind a desk for the Department of Highways. Plaintiff testified he endured substantial back and leg pain when he engaged in prolonged sitting or standing. His wife corroborates his testimony, explaining that her husband would have substantial back pain even upon performing the lightest household task. The two orthopedic physicians who stated they felt plaintiff was capable of doing light work, also testified that prolonged sitting or standing would cause plaintiff to endure pain.

The trial judge did not discuss the pain plaintiff was enduring in connection with all of his activities, including sitting and standing, in his reasons for judgment. However, the issue of plaintiff’s pain in connection with any attempt to perform light work was thoroughly tried and we must conclude the trial judge relied upon the evidence in the record related to it in determining plaintiff to be totally and permanently disabled under the provisions of LSA-R.S. 23:1221(2). The plaintiff’s testimony about his inability to do desk work requiring prolonged sitting because of pain, corroborated by his wife, and to some extent substantiated by the testimony of the two orthopedics, provides adequate evidence to support the trial judge’s determination that plaintiff is totally and permanently disabled under the present Louisiana Workmen’s Compensation Act. We do not find manifest error nor can the decision be said to be clearly wrong and should not be disturbed on appeal. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, Bearb & Allstate Ins. Co., 365 So.2d 1330 (La.).

Plaintiff neither appealed nor answered the appeal and for that reason we may not consider his demand contained in brief for additional attorney’s fees.

AFFIRMED at appellant’s cost.


author: BOLIN, Judge.

text:
    Johnnie JONES, Plaintiff-Appellant, v. John C. SKANNAL, Defendant-Appellee. Richard JONES et al., Plaintiffs-Appellants, v. John C. SKANNAL et al., Defendants-Appellees.
    Nos. 13783, 13784.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearings Denied March 28, 1979.

      DeLaune & Blondeau by A. L. Blondeau, Bossier City, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Don Weir, Jr., Shreveport, for defendant-appellee, Succession of Tom Jones Moffett.
    Glen F. Armstrong, Bossier City, for defendants-appellees, John C. Skannal et al.
    James E. Franklin, Jr., Shreveport, for defendant-appellee, Enviro South, Ltd.

      Sam V. Prunty, Jr., Shreveport, for Isaac & Rosie Lee Jones Howard, plaintiff s-appel-lees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

These two possessory actions, involving adjacent tracts in the Sligo area of Bossier Parish, were consolidated for trial. The trial court found that plaintiffs failed to prove they possessed the property as owners and rejected their demands. Plaintiffs appeal and we affirm.

Tract number one, the subject of suit number 13,784, was originally entered in 1907 by Sam Jones, the father or grandfather of the various plaintiffs. He and his family gradually cleared the lands and began to grow crops. In 1909 this original 40 acres was sold by Jones to G. W. Smith, although the Jones family continued to live there and farm the property. Gradually the family expanded its farming operations to include the entire tract in question and enclosed the area with fences. The Jones family has continuously inhabited this tract until the present time.

Tract number two, the subject of suit number 13,783, was entered around 1934 by Johnnie Jones, a grandson of Sam Jones. With the help of the rest of the family he built a house and began clearing the land. He fenced the tract and began his own farming operations which were conducted separately and independently from those of the rest of the family on tract one. With the exception of time he spent in the armed services during World War II, he has continually inhabited this tract until the present time.

In 1976 the record owners of the two tracts sold the property to defendant John C. Skannal, who in turn sold a portion of tract one to defendant Enviro South, Ltd. The recordation of these conveyances prompted the Jones family to file these two suits seeking to be maintained in possession of the property.

The trial court found that plaintiffs had possessed the property in question as lessees or caretakers rather than owners and consequently were not entitled to judgment maintaining their possession. The court found that after Sam Jones died, one of his sons, Kentchen Jones, became the “leader” of the Jones family and in that capacity entered into a lease agreement with the record owners on behalf of the family. The court noted that as to tract number two, the question was somewhat different since Johnnie Jones may have conducted his operations independently of Kentchen and the rest of the family and had made no payments to anyone. However, the court held that in order for Johnnie Jones to be possessor as owner he would have had to somehow manifest his intent to possess as owner to the general public and the record owner, since his possession had begun precariously in the capacity of lessee.

Plaintiffs appeal, alleging the trial court erred in the following respects:

(1) In finding that Kentchen Jones was the “leader” of the Jones family and that his actions were binding on the remainder of the family, his co-possessors;

(2) In admitting into evidence a written lease agreement executed by Kentchen Jones in 1936 on tract number two;

(3) In finding that payments made by Kentchen Jones to the record owners were rental payments rather than payments on an outstanding indebtedness;

(4) In holding that Johnnie Jones was required to give some further notice to the record owner, in addition to that provided by his physical possession of and activities on the property, in order to be held as possessing as owner.

The first allegation of error is without merit. The trial judge in his reasons for decision documented in detail the evidence he relied on in reaching the conclusion that Kentchen Jones represented the entire family living on the property in question. Every witness who testified regarding dealings he had with the Jones’ farming operations stated he had dealt exclusively with Kentchen Jones. We cannot say the trial court’s decision, based on the cited evidence, was clearly wrong.

The second allegation of error is also without merit. The plaintiffs’ objection to the introduction of the lease into evidence was based on their contention that the lease did not cover any of the property involved in these suits and consequently was irrelevant. Although the description in the lease may be somewhat ambiguous due to its reference to the Sligo Road, it refers to the forty acres included in tract number two by specific description. However, even if consideration of the lease was improper, it was harmless error since the other evidence was more than sufficient to justify a finding that Kentchen Jones made lease arrangements with the record owners regarding both tracts on behalf of members of his family living on both tracts.

Plaintiffs’ third allegation of error is based on their contention that the 1909 deed from Sam Jones to G. W. Smith was not intended as a transfer of the property but was instead intended as a mortgage to secure a debt the family owed Smith. They claim that all payments made by Kentchen Jones to the record owners were not rental payments but rather payments on this indebtedness. The property was never recon-veyed to the Joneses although they claim the debt was paid. Furthermore, Kentchen Jones made payments to record owners of the property other than the Smith family and specifically referred to these payments as rent. Under these circumstances we agree with the trial court that this contention was not proved.

Plaintiffs’ final allegation of error is likewise without merit. It is true that generally the mere fact of physical possession by a non-owner is sufficient notice to the record owner and the public at large that the non-owner intends to possess the property for himself. Civil Code Article 3488. However, if it is shown that the possession began in some capacity other than owner, the mere fact of physical possession does not put the public and record owner on notice. In such a case the possessor must do something to make generally known his positive intention to hold the property as owner, and proof of this change in intent must be specific in regard to the actual time it occurred. Thomas v. Congregation of St. Sauveur Roman Catholic Church, 308 So.2d 337 (La.App. 1st Cir. 1975).

In the present case Johnnie Jones began his possession as lessee by exercising the right to occupy the land that his father, Kentchen Jones, secured on his behalf from the record owners of the tract. The evidence indicates that Kentchen Jones secured this right not only for himself but for his entire family and there is nothing about Johnnie Jones’ possession and activities relating to tract two that would distinguish it from that of the rest of the family on tract one. There was never any specific action taken by Johnnie Jones to make known his intent to possess as owner. Consequently his possession continued in the capacity of lessee despite his failure to pay any rent.

The judgment in these consolidated cases is affirmed at appellants’ cost.