author: O’NIELL, Chief Justice. FOURNET, Justice HAWTHORNE, Justice McCALEB, Justice

text:
    213 La. 1051
    JONES v. SOUTHERN NATURAL GAS CO.
    No. 38476.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Thompson, Thompson & Sparks, of Monroe, for defendant-appellant.
    Carey J. Ellis, Jr., of Rayville, for plaintiff- appellee.
   O’NIELL, Chief Justice.

On September 8, 1943, Mrs. Mary Ellis Jones leased to L. M. Calhoun, Jr., for the production of oil, gas and other minerals, a tract of land described as follows:

“The Southeast quarter of the Southwest quarter (SEJ4 of SWj4) and the South half of the Southeast quarter (SYz of SEj4) Section One (1), Township Thirteen (13) North, Range Seven (7) East. The Southwest quarter of the Southwest quarter (SWJ4 of SWJ4)> the North half of Southeast quarter of Southwest quarter (NJ4 of SEJ4 of SWJ4) and the North half of South half of Southeast quarter (m/2 of sy2 of SEJ4) Section Six (6). The South half of Southwest quarter of Northwest quarter (Si/j of SWJ4 of NW%), Southeast quarter of the Northwest quarter (SEJ4 of NWJ4) and the* Southwest quarter (SWJ4) of Section Five (5). The Northeast quarter of the Northwest quarter (NEJ4 of NW%) Section Eight (8), Township Thirteen (13) North, Range Eight East. All of the above containing in the aggregate Five Hundred Eighteen and Eighty two one-hundredths (518.82) acres, more or less.”

The consideration paid by Calhoun for the lease was $518.82 as stated in the lease. It contained the usual declaration that for all of the purposes of the lease the land described should be treated as containing 518.82 acres, even though it might actually contain more or less acreage. The primary term of the lease was ten years. The act contained also the following clause:

“If operations for drilling are not commenced on said land on or before one year from this date, the lease shall then terminate as to both parties unless on or before such anniversary date 'lessee shall pay or tender to lessor or to the credit of lessor in Richland State Bank at Rayville, Louisiana (which bank and its successors are lessor’s agent and shall continue as the depository for all rentals payable hereunder regardless of changes in ownership of said land or the rentals) the sum of Five Hundred Eighteen and 82/100 dollars ($518.82) (herein called rental) which shall cover the privilege of deferring commencement of drilling operations for a period of twelve (12) months. In like manner and upon like payments or tenders annually the commencement of drilling operations may be further deferred for successive periods of (12) months each during the primary term. The payment or tender of rental may be made by the check or draft of lessee mailed or delivered to lessor or to said bank on or before such date of payment. * * * Lessee, or any assignee hereunder, may at any time execute and deliver to lessor, or to the depository above named, or place ■of record, a release or releases covering any portion or portions of the premises held by him, and thereby surrender this lease as to such portion or portions, and thereafter the rentals payable by him shall be reduced proportionately.”

The lease provided that the rights of either party thereunder might be assigned in whole or in part, and in that connection the act contained the following clause:

“In event of assignment of this lease as to a segregated portion of said land, the rentals payable hereunder shall be appor-tionable as between the several leasehold owners ratably according to the surface area of each, and default in rental payment by one shall not affect the rights of other leasehold owners hereunder.”

On July 31, 1944, Calhoun assigned the lease to the Southern Natural Gas Company, so far as it covered the land described as follows:

“The South half of Southeast quarter (S% of SEJ4) Section 1, Township 13 North Range 7 East; The Southwest quarter of Southwest quarter (SWJ4 of SWJ4) Section 6; The South half of Southwest quarter of Northwest quarter (S(4 of SWJ4 ■of NWJ4), the Northwest quarter of Southwest quarter (NW% of SWJ4) and the East half of Southwest quarter (Ei/¿ of SW14) Section 5; The Northeast quarter of Northwest quarter (NEJ4 of NW%) Section S, Township 13 North Range 8 East, containing 300 acres, more or less.”

On August 24, 1944, the Southern Natural Gas Company mailed its check to the Richland State Bank for $300 accompanied by a blank receipt for the bank to sign, declaring that the check for $300 was in full payment of all delay rentals for the period from September 8, 1944, to September 8, 1945, as per the terms of the oil and gas and mineral lease executed by Mrs. Mary Ellis Jones in favor of L. M. Calhoun, Jr., and subsequently partially assigned to the Southern Natural Gas Company to the extent of 300 acres, more or less, and particularly described in the receipt as follows:

“Sy2 of SE% Sec. 1, Twp. 13 North, Range 7 East; SWJ4 of SWJ4 Section 6; Sy2 of SW14 of NWJ4; NW1/4 of SW% and Ei/2 of SW14 Sec. 5; NE% of NWJ4 Section 8, Township 13 North, Range 8 East.”

The receipt contained a citation of the conveyance book and page where the lease was recorded, and concluded with the statement that the $300 was for the credit of Mrs. Mary Elli's Jones. The cashier of the Richland State Bank signed the receipt and retained it in the files of the bank, and returned a copy to the Southern Natural Gas Company. At the same time he mailed a deposit slip for the $300 to Mrs. Jones declaring that the slip was a duplicate and that the amount of $300 was deposited to her credit by the Southern Natural Gas Company. Mrs. Jones’ checking account with the hank was carried in the name of Mrs. W. L Jones. She had no checking account in the name of Mrs. Mary Ellis Jones; but the bank, knowing that Mrs. W. L. Jones and Mrs. Mary Ellis Jones were one and the same individual, placed the deposit of $300 to the credit of Mrs. W. L. Jones. The duplicate deposit slip which was mailed to her did not contain a description of the 300 acres of land, but the receipt which was sent to the bank by the Southern Natural Gas Company with the check for $300 showed upon its face that if each of the sections referred to contained the regulation area of 640 acres, the 7% quarter-quarter sections described in the receipt contained exactly 300 acres.

Mrs. Jones made no complaint of there being a shortage in the payment of the delay rental but continued to draw against her checking account in which the bank had deposited the $300.

On August 11, 1945, the Southern Natural Gas Company again deposited $300 in the Richland State Bank to the credit of Mrs. Mary Ellis Jones, to pay the delay rental for the period from September 8, 1945, to September 8, 1946. The remittance was accompanied by a statement of the Southern Natural Gas Company to the effect that the payment was made for the purpose of continuing in force the mineral lease dated .September 8, 1943, executed by Mrs. Jones in favor of L. M. Calhoun, Jr., so 'far as it covered 300 acres in the sections mentioned in the assignment by Calhoun to the Southern Natural Gas Company. The cashier of the bank signed the receipt which accompanied the remittance and returned the receipt to the Southern Natural Gas Company, and at the same time sent to Mrs. Jones a deposit slip for the $300. For some reason which is not explained in the testimony the bank opened a new account in the name of Mrs. Mary Ellis Jones, instead of depositing the $300 to Lhe credit of the account of Mrs. W. L. Jones, as the bank had done with the first deposit of $300.

On September 10, 1945, that is to say, on the second day after the expiration of the time in which the delay rental should have been paid, according to the terms of the lease, Mrs. Jones wrote to the Southern Natural Gas Company saying that inasmuch as the company had failed for two years to pay the amount necessary to keep alive the lease which the company had bought from L. M. Calhoun, Jr., Mrs. Jones requested the company to let her have a release so that she could record it. The company replied that the delay rentals had been paid promptly on the 300 acres on. which the lease was assigned by Calhoun to the company; and the company in its reply enclosed photostatic copies of the receipts of the bank, showing that the $300 delay rentals had been paid promptly, for the periods from September 8, 1944, to September 8, 1945, and from September 8, 1945, to September 8, 1946. In the company’s reply to Mrs. Jones the land on which the lease was assigned by Calhoun to the company was described by government subdivisions, showing that there were JYz quarter-quarter sections; which showed that the area of the land was exactly 300 acres, and that the delay rental therefore 'was $300 for each year, if the sections contained the regulation area of 640 acres. Mrs. Jones again wrote to the Southern Natural Gas Company, saying, this time, that the land on which the lease had been assigned by Calhoun to the company contained considerably more than 300 acres, and that she was making the demand for a cancellation of the lease under the provisions of Act No. 168 of 1920. But she did not inform the company of the amount of the excess area of the land on which the lease was assigned by Calhoun to the company. On October 1, 1945, the Southern Natural Gas Company, replying to Mrs. Jones’ letter of September 29, furnished her a list of the 7yz quarter-quarter sections on which Calhoun had assigned the lease to the company, which list showed that the total area described in the assignment was exactly 300 acres, assuming that the sections referred to contained the regulation area of 640 acres.

On October 3, 1945, Mrs. Jones replied to the company’s letter of October 1, and in her reply she insisted that the area of the land on which the lease was assigned by Calhoun to the company exceeded 300 acres. But still she did not disclose the extent of the excess of the acreage. She informed the company that according to her lease she should receive $518.82 for the delay rental for each year, and that in fact she had only received $480 from all of the leaseholders. In this last letter of Mrs. Jones she demanded that the company furnish her with a release of the lease' on the area described in the assignment by Calhoun to the company within ten days from the date of, her first letter. Subsequently, on a date not stated in the letter, Mrs. Jones explained that when she said she had received $480 from all claimants, she did not mean that she had actually received the $480 but meant that that amount had been deposited to her credit in the Richland State Bank, and that she had not accepted any part of it. Evidently, she had reference to the delay rental for the period from September 8, 1945, to September 8, 1946. She stated that although the bank had been designated as her agent for the receipt of the delay rentals, the bank was only authorized to receive the correct amount and could not bind her by receiving a less amount than that which was due her. She stated also that if the company desired to withdraw the “partial payment,” as she called it, from the bank, the company should call upon the bank to return the money. On December 19, 1945, the Southern Natural Gas Company wrote to Mrs. Jones saying that she had informed the company that the assignment which Calhoun had made to the company covered 322.629 acres instead of 300 acres. The company, in its letter to Mrs. Jones, again described in detail the subdivisions comprising the so-called 300 acres, described in the assignment which Calhoun had made to the company. In this last letter which the company wrote to Mrs. Jones the company stated that in view of her representation that the exact area of the land on which the lease was assigned by Calhoun to the company was 322.629 acres, the company was enclosing in its letter the company’s check payable to her order for $45.-26 to cover the additional rental which she was claiming. In its letter to Mrs. Jones the company insisted that the payment of the additional $45.26 was not to be construed as an admission that the company had not paid the delay rental in full for each year. That letter was answered by Mrs. Jones’ attorney on January 29, 1946, notifying the' Southern Natural Gas Company that all previous offers made by her were thereby withdrawn and that, unless an immediate cancellation of the lease so far as it affected the land on which it had been assigned to the company was furnished, it would be necessary to file suit.

The suit was filed on March 1, 1946, and under the provisions of Act No. 168 of 1920, the plaintiff prayed not only that the lease should be adjudged forfeited so far as it affected the land on which it was assigned to the Southern Natural Gas Company (alleged by the plaintiff to contain 322.63 acres), but also that she should recover of and from the defendant $500 for her attorney’s fee under the provisions of Act No. 168 of 1920. The act provides that if a lessee holding a mineral lease shall fail or refuse to furnish the lessor a written cancellation within ten days after demand, and if the lease should be adjudged forfeited, the lessee shall be liable for a reasonable attorney’s fee. The district court gave judgment for the plaintiff, adjudging the lease forfeited so far as it affected the alleged 322.63 acres, and condemning the defendant to pay the plaintiff $500 attorney’s fee. The defendant is appealing from the decision.

The defendant, in its answer to the suit, contended that the alleged 300-acre tract on which the lease had been assigned to it by Calhoun in fact contained 300.56 acres. Hence the defendant invoked the maxim de minimis non curat lex.

It appears that two surveyors testified as witnesses for the plaintiff that they had computed the area of the quarter-quarter sections described in the assignment made by Calhoun to the Southern Natural Gas Company. One of these witnesses testified that his computation showed that the area was 322.82 acres, and the other witnesses testified that his computation showed that the area was 323.23. It appears that these two witnesses computed the area of each quarter-quarter section by dividing the area of each section, as stated in the legend on the official plat, by the number 16, that being the number of quarter-quarter sections in each section. Another surveyor, as a witness for the’ defendant, testified that he had made the computation according to the Manual of Instructions for the Survey of the Public Lands of the United States, and that his computation showed that the area of the 7/¿ quarter-quarter sections was exactly 300.56 acres. If we should accept that computation as correct, in comparison with the calculation made by the two surveyors who testified for the plaintiff, we might feel obliged to apply the maxim de minimis non curat lex. On the other hand, if we should accept as correct the area contended for by the plaintiff, 322.63 acres, we would have some doubt about the application of the maxim, because, accepting that figure as the correct area, the shortage in the payment of the annual rental was 7% per cent of the amount which should have been paid. The rule which is founded upon the maxim de" minimis non curat lex is so indefinite that we prefer to rest our decision apon a more substantial basis. We refer to these slight differences in the computations made by the three surveyors, respectively, to demonstrate how likely it was that a mistake might be made in computing the amount of the annual rental on the so-called 300 acres described in the assignment made by Calhoun to the Southern Natural Gas Company. The requirement was that the amount should bear the same ratio to $518.82 as the.area of the acreage described in the assignment bears to the total area of 518.82 acres described in the original lease. In that respect this case is different from one where the lessor has stated in the lease, in dollars and cents, the exact amount of the annual rental which must be paid by the lessee, and where there has been no assignment of a segregated part of the land covered by the original lease.

The defendant in its answer to this suit pleaded that the plaintiff, by accepting the $300 deposited by the defendant in the Richland State Bank, on August 25, 1944, knowing that the defendant in good faith believed that the amount was sufficient to pay in full the delay rental from September 8, 1944, to September 8, 1945, and by retaining in her bank account the $300 paid by the defendant on August 11, 1945, knowing that the defendant in good faith believed that that amount was sufficient to pay in full the delay rental for the year beginning September 8, 1945, and ending September 8, 1946, was estopped from demanding a forfeiture of the lease for nonpayment of the delay rentals in full. It is argued for the plaintiff that the estoppel cannot prevail in this case because she was, at the time of the payment of the rentals, ignorant of the fact that the amount was insufficient. The important fact, however, is that she knew that the party making the payment believed that the amount was sufficient, and had good reason to believe it was sufficient. If the plaintiff had known that the amount was insufficient and had knowingly accepted the $300 in full payment for the delay rental due to her, she would have been estopped from claiming now the alleged shortage of $22.63. There is nothing to prevent a creditor from accepting from his debtor in full' payment of the debt due an amount less than is due, provided, of course, that the acceptance is made with full knowledge that it is not the full amount due, and with the intention that it shall discharge the debt. The defendant in this case is not pleading that the plaintiff became estopped from demanding the alleged shortage, but is pleading that she is estopped from demanding the forfeiture, without having informed the defendant of the shortage and without having given the defendant an opportunity to correct the mistake. Wc must bear in mind that this was a mutual mistake, and was one which was very apt to occur. There is ample authority for the proposition that considerations of equity may prevent a forfeiture of a mineral lease where the failure of the lessee to pay the full amount of the delay rentals, or his failure to pay it within the time stipulated, is the result of a mistake on his part, and where the circumstances are such that the mistake is a pardonable one, and particularly where the mistake is a mutual mistake on the part of both the lessor and the lessee. In such cases equity requires that when the lessor learns of the mistake he should promptly inform the lessee of the mistake and give the latter an opportunity to correct it immediately, before he, the lessor, can demand a forfeiture for nonpayment of the rental within the time stipulated. See Monarch Gas Co. v. Roy et al., 81 W.Va. 723, 95 SE. 789; and Gloyd v. Midwest Refining Co., 10 Cir., 62 F.2d 483. In the latter case the United States Circuit Court of Appeals for the 10th circuit declared:

“Oil lease providing for termination on failure to commence well ‘unless’ lessee pays rental automatically terminates upon lessee’s intentional [italics ours] failure to pay stipulated rental within time provided.
“ ‘Unless’ ” lease is not automatically terminated by nonpayment of rental within stipulated time, where lessee undertakes in ample time to pay rental through means customarily used, but payment is delayed through accident or mistake, [italics ours.]
“Equity will aid enforcement of forfeiture only where to do so conforms with principles of right, justice, and morality.”

Our opinion in the present case is in some respects not consistent with some of ■the pronouncements made in Le Rosen v. North Central Texas Oil Co., Inc., 169 La 973, 126 So. 442. So iar as the two decisions are inconsistent the former henceforth must be considered overruled.

The judgment appealed from is annulled and reversed and the plaintiff’s suit is dismissed at her cost, reserving to her the right to claim the alleged shortage in the payment of the delay rentals.

FOURNET, Justice

(concurring).

I concur in the majority opinion.

The plaintiff, having accepted from the several assignees of the party to whom she leased her property on September 8, 1943, sums totalling $480, and amount less than that stipulated in the lease, in payment of dela}r rentals due and payable on or before September 8, 1944, cannot now be heard to say that the amounts thus received and retained by her were not sufficient to continue the lease for the ensuing year. She thereby elected to accept the $480 and her election in this respect had the effect of continuing the lease until its next anniversary date. In other words, she cannot retain this amount and at the same time claim the lease had terminated. It necessarily follows, therefore, that when the next anniversary date arrived for the payment of these rentals so that the lease might be kept in force for another year, the assignees had reason to assume the amounts previously paid by them to the plaintiff were correct, since she had accepted them without protest the previous year, and it is my opinion that the timely tender for tlie year 1945 by the defendant here, assignee of a designated portion of the original lease, of the same amount tendered for this same portion the previous year, was sufficient to maintain that portion of the lease for another year and the plaintiff is estopped from claiming its forfeiture.

HAWTHORNE, Justice

(dissenting).

In my opinion the proof offered by the plaintiff successfully refutes the contention of the defendant that the maxim “de minimis non curat lex” is applicable to this case.

As I appreciate the pleadings in this case and the argument before this court, the only other defense of the defendant to the cancellation of this lease is that the plaintiff is estopped to demand such cancellation. In my opinion the doctrine of estoppel urged by defendant can have no application to this case.

The specific plea of the defendant is that the plaintiff is estopped to assert that the lease has terminated with respect.'to the assigned acreage, for the reason that she accepted the delay rental of $300 deposited to her credit and did not complain that it was insufficient until long after the date on which this rental was payable.

The law is well settled in our state that, to effect an estoppel by silence, the party relying upon the doctrine must affirmatively show that the person estopped had full knozvlcdge of the facts and of his rights; that he had an intent to mislead or at least a willingness that others should be deceived; (hat the other party was misled by his attitude-. Mere silence itself will not create an estoppel, and, for silence to operate as such, the circumstances must have been such as to create a -duty to speak, and there must have been an opportunity to speak. It is essential that the party to be estopped should have had knowledge of the facts, .and that the adverse party should have been ignorant of the truth and have been misled into doing something that he would not have' done but for such silence. See Parker et al. v. Ohio Oil Co., 191 La. 896, 186 So. 604; Harvey v. Richard et al., 200 La. 97, 7 So.2d 674, and -authorities therein cited.

The rule with reference to estoppel by acceptance of benefits is that, to create such an estoppel, it is essential that the person against whom the estoppel is claimed should have acted with knowledge of the facts and of his rights; that the party claiming the estoppel should have been without knowl-edgs or means of knowledge of the facts on which he bases his claim of estoppel, and that he must have been misled to his prejudice. See 31 C.J.S., Estoppel, § 190 (b), page 349.

It may be that defendant’s plea should be construed as a plea of election or inconsistent positions. According to the text "writers, there is some doubt whether the plea of election or inconsistent positions is, strictly speaking, a plea of estoppel, although it is often treated as such in a discussion of estoppel. The rule as to this plea is given by Bigelow on Estoppel (Carter’s 6th Ed. 1913), Ch. XX, p. 732, as follows:

“A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; ‘a man shall not be allowed’, in the language of the Scotch law, ‘to approbate and reprobate.’ And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; the election, if made with knowledge of the facts, is in itself binding, — it cannot be withdrawn without due consent; it cannot be withdrawn though it has not been acted upon-by another by any change of position. * * * ” (All italics mine.)

Estoppel is not favored under our jurisprudence, and the burden of proving the facts to establish it rests upon the one relying on the doctrine. In the instant case the defendant has not assumed this burden or made any effort to prove that Mrs. Jones actually had knowledge of the fact that it had made an insufficient delay rental payment to her. I would feel constrained, however, in the interest of justice to regard the plea of estoppel as valid if the facts and circumstances of this case were such that this' knowledge could necessarily be imputed to her.

It is my belief that the concurring opinion of Justice Fournet overlooks the fact that Mrs. Jones could not have elected to accept the $480 as total payments for delay rentals for the period September 8, 1944, to September 8, 1945, unless she had either actual or imputed knowledge of the true facts.

The record discloses that before the first, anniversary date of the lease the lessee named therein made two assignments, one béing to defendant, and a third assignment was made before the second anniversary date. The lease permitted and authorized such assignments, but the plaintiff was not a party thereto, and did not have knowledge of the area assigned to each, even if she actually knew assignments had been made. It naturally follows that on the first anniversary date she did not know the parties who would pay delay rentals, the area of their respective assignments, and the acreage contained therein. At the first date on which delay rentals were payable, she received only $480 from all parties paying delay rentals under the lease instead of the $518.82 stipulated; but even this fact did not inform her that the defendant was paying an insufficient amount for the surface area contained in its assignment. This is undoubtedly true for the reason that the deposit slip which the bank sent to her showing the deposit made by defendant did not contain any description of the property covered by defendant’s assignment; but,- even if it had, I have serious doubt that it was her duty to do what the defendant had chosen not to do— that is, to calculate the acreage with certainty — and to inform defendant of its error.

It is entirely possible that, in a lease permitting assignments such as this, the original lessee or one or more of his assignees may have elected not to pay the delay rentals, and in this event the amount deposited to plaintiff’s credit as delay rentals by those assignees desiring to maintain the lease as to their respective assigned surface areas would necessarily be less than the amount of delay rental named in the lease. The mere fact, therefore, that only $480.00 was deposited to plaintiff’s credit did not impose upon her the duty of checking the records to ascertain what assignments had been made, which assignees had paid their rentals, whether these rentals were sufficient, or whether the original lessee or any of its assignees had elected not to pay the delay rental and drop the lease.

The record does not affirmatively show at what exact date Mrs. Jones, the p’aintiff, became aware .that defendant had paid an incorrect amount of delay rental, and under the circumstances of this case I cannot say that such knowledge was necessarily imputed to her at a date prior to her demand for a release contained in her letter of September 10, 1945.

Although Mrs. Jones drew against the amount of the first rental payment deposited in her checking account, defendant has not shown or proved to my satisfaction that plaintiff had knowledge when she made such withdrawals that an incorrect amount had been paid. In view of the surrounding circumstances as set forth hereinabove, I have concluded that she had no knowledge of defendant’s error.

My conviction that this knowledge cannot be imputed to the plaintiff is strengthened by the statement in defendant’s brief that “Mrs. Jones accepted said rentals doubtless believing at the time that she had been paid the correct amount of rentals.”

On the argument of this case the majority of this court was apparently impressed by the fact that the plaintiff failed to tender to defendant the amount of the first delay rental payment. The defendant does .not complain of this fact, and Mrs. Jones herself does not contend that she is rightfully entitled to this amount. As to the second deposit of $300, Mrs. Jones informed defendant by letter that this deposit made by it was still in the bank, and that she had not accepted or used it, and did not intend to accept or use it.

Under these facts and circumstances, since Mrs. Jones acted in good faith and without knowledge of defendant’s error in payment, none of the rules relative to es-toppel as set out hereinabove is applicable to this case, and in my opinion defendant’s plea is without merit.

Defendant relies strongly on a recent case from another jurisdiction to sustain the plea of estoppel in the instant case. Humble Oil & Refining Co. et al. v. Harrison Tex.Sup., 1947, 205 S.W.2d 355. Without expressing an opinion as to whether the doctrine of equitable estoppel was properly applied in that case, I conclude that the facts and circumstances of that case distinguished it completely from this one. In that case a grantee under an ambiguous mineral deed to which he was a party was paid an insufficient amount of delay rental by a lessee which was not a party to the mineral deed, under leases covering the land described in the deed. The court held that the mineral owner was es-topped to assert that the leases had expired as to his interest because he was silent after he knew that the lessee had misconstrued the deed, and failed to notify the lessee of the proper construction. There the person against whom the estoppel was urged had the advantage of knowing what the one urging the estoppel could not know — that is, what was intended by the ambiguous mineral deed. The defendant in the instant case, Southern Natural Gas Company, being a party to the assignment and familiar with the description of the property contained therein, certainly had means and ways of ascertaining the surface area of its assignment and computing the correct rental payments, and it was in a better position than plaintiff to make this calculation. That case can be distinguished on other grounds also, but this distinction effectively disposes of the case as to the question of knowledge of the person estopped.

In my opinion the error of the majority has been induced by a lack of appreciation of the difference between the “drill or pay” type lease and the “unless” type lease. This is demonstrated by the fact that the rule applicable to the forfeiture of the “drill or pay” type lease was applied in this case to an “unless” type lease, and that a case which obviously involved a “drill- or pay” type lease, Monarch Gas. Co. v. Roy, 81 W.Va. 723, 95 S.E. 789, has been cited in support of that rule.

It will be observed that the lease in the instant case is of the type or kind known as the “unless” lease, as distinguished from the “drill or pay” type. Under an “unless” lease, the lessee is under no duty either to' drill or to pay delay rentals; if he either pays or drills, the lease remains in effect, but, if he does neither, it ipso facto terminates at the time of default. It will be observed also that the forfeiture clause in the “unless” lease is for the benefit of, and exercisable by, the lessee or his assigns alone.

The difference in these types of leases has been clearly set out by Summers, thus:

“Sec. 452. When the ‘unless’ drilling clause 'is used, the lessee does not covenant to drill or pay. The clause 'relative to the drilling of wells within a stated time, or the periodic payment of money, is used, not for the purpose of fixing a duty upon the lessee to drill or pay, but to state a limitation upon which the lease terminates if these acts are not performed. Consequently, if the lessee fails to drill within the stipulated time, the lessor cannot recover in an action for rent, or recover in an action for damages for failure to drill, for the obvious reason that there is no duty upon which to found such actions.
“Where the ‘drill or pay’ clause is used, the courts uniformly hold that the interest of the lessee is subject to be defeated by breach of conditions subsequent; that is, the failure of the lessee to drill or pay within the time or times stipulated in the lease. The power to forfeit the lease is for the benefit of and exercisable by the lessor or his assigns only. Before the lease is terminated by this power there must be a declaration of forfeitures by the lessor and a perfection thereof by re-entry, action, or other operative act. But where the ‘unless’ drilling clause is used a failure of the lessee to drill or pay a stipulated sum of .money ipso facto terminates the lease without the necessity of re-entry, action, or .their equivalents by the lessor . * * * ” 2 Summers, Oil and Gas, Perm.Ed., Section 452, pp. 494 — 497.

The power to forfeit the lease at any of its anniversary dates by failure to pay the delay rentals according to the provision of the lease being exclusively in the lessee or his assigns, it naturally follows that in the instant case, upon failure to drill, for lessee or his assigns to continue the lease in full force and effect beyond each anniversary date, it was their duty and plain obligation to pay the delay rentals as provided therein. The lease in, this case plainly stated that, in the event of an assignment as to any segregated portion of the property described therein, the rental payments thereunder should be apportionable as between the several leasehold owners ratably according to the surface area of each. This being so, in order to keep the lease in force by the payment of delay rentals, it was the duty of the assignee, defendant herein, to ascertain the surface area of the property described in its assignment .and pay rentals in accordance therewith. Upon its failure to pay the proper rental in accordance with the terms of the lease, the lease as to the assigned area lapsed and expired ipso facto.

By its failure to observe the difference in the “drill or pay” type lease and the “unless” type lease, the court has failed to recognize that the rule that equity abhors a forfeiture is not applicable in this case. Counsel for defendant urged in oral argument and in brief that forfeiture of a contract or of a party’s rights under a contract is one of the harshest civil remedies known to the law and generally is not favored by the courts, and they invoked the court to apply that rule in the instant case. That this rule could have no application here is correctly pointed out by Summers :

“ * * * It is no doubt true that, where an ‘unless’ lease has terminated for the failure of the lessee to drill test wells or pay delay rentals within time or times stipulated, the lessor has a right to have the cloud thereof ' removed from his' title. Many actions for this purpose are brought by lessors, and some courts, either through failure to carry through the well-recognized distinction between the 'or1 and the runless’ provision, or through negligent habits in the use of terms, speak of these actions as the enforcement of forfeitures, and view them with the same grave concern that they do forfeitures for breach of conditions subsequent. ' In some instances, however, courts have held that such actions are not really enforcement of forfeitures and are not affected by the rule that equity abhors a forfeiture.
“Regardless of the terminology used by the courts in reference to the termination of the ‘unless’ lease for failure of the lessee to drill or pay rentals, suits for cancellation of such leases after their termination for such failures are, in the better reasoned cases, 'decided upon, principles of law and equity differnet from those involved in the enforcement of forfeitures of the drill or pay’ lease. * * * ” 2 Summers, op. cit. supra, Section 452, p. 499.

The, distinction in these types of leases has been correctly recognized by the Court of Civil Appeals of Texas in the case of Ford v. Cochran et al., Tex.Civ.App., 1920, 223 S.W. 1041, 1042, which involved an “unless” type lease:

“By another assignment [of error] it is insisted that as the rental was tendered on March 7th, only six days after it was due, and prior to such tender plaintiff had not been notified by the lessors of their claim of forfeiture, the court erred in rendering a judgment of forfeiture. In other words, as we intex-pret the assignment, it is to the effect that time was not of the essence of the contract, and that until the lessors notified the plaintiff of their claim of forfeiture they had no right in equity to claim the same by reason of the short delay in tendering the stipulated rental. Under the terms of the lease, the drilling of a well and the payment of the rental was optional with the plaintiff as the assignee of the original lessee, and he was not bound to do either, and it is a familiar rule that time is of the essence of an optional contract. * * * Briefly stated, this suit is not in the true sense a suit in equity to declare a forfeiture, but is an action seeking a decree declaring an optional lease terminated for nonperformance of its express conditions upon zvhich its continuation depended, and therefore the familiar general rule that a court of equity will not enforce a forfeiture, but will often lend its aid to prevent one, has no application. * * *

The case cited in the majority opinion, that is, Gloyd v. Midwest Refining Co., 10 Cir., 1933, 62 F.2d 483, to substantiate the decision on the ground that the failure of the condition of the lease was due to a “pardonable” mistake on the part of the defendant, in my opinion, is not authority for the decision in the instant case. In that case the court made it clear that the failure of the condition was due to an accident or mistake resulting from causes over which the transferee of the original lessee had no control. This transferee had placed the rental payment in the mail in time to reach the transferee of the original lessor priorato the rental date, hut the payment was lost in the mail. No facts similar to those exist in the instant case. Here the mistake was not one over which the as-signee had no control. It could have ascertained that its assigned area contained more than 300 acres. In fact, it could have ascertained that the original lease contained oversize sections merely by examining the description of the property contained in the lease and comparing that with the number of acres recited as being contained therein, and thus have been made aware that its assigned area would in all probability also contain oversize sections. The “pardonable” mistake in the instant case is therefore not a mistake over which the assignee had no control as in the Gloyd case.

Nor was the mistake in this case a “mutual” one, for it is not shown by the record that Mrs. Jones “knew that the party making the payment believed that the amount was sufficient, and had good reason to believe it was sufficient.” It was impossible for her to know that the party making the payment had good reason to believe it was sufficient, for the record shows that Mrs. Jones was not even informed prior to the date of the first rental payment— and the date on which in my opinion the lease ipso facto terminated — what portion of the lease Southern Natural Gas Company was attempting to make payments for.

Regardless of this, however, in 'at least one case a different view has been taken from the view in the Gloyd case. In Appling et al. v. Morrison, Tex.Civ.App., 1921, 227 S.W. 708, 709, involving an “unless” type lease, the rental payment due'on July 6; 1919, was mailed on July 3 and in due 'course should have reached the depository named in the lease on or before the rental date, but as a matter of fact the payment did not reach the depository until July 8. The assignees of the lessee in that case contended:

“They having remitted the money through the mails in ample time to have reached said depository on or before July 6, 1919, and through no fault of theirs the remittance is delayed en route, but reached said depository a short time after the 6th, they are not guilty of laches and are entitled to the equitable relief invoked.”

The court rejected this contention, saying:

“Courts of equity do not favor forfeitures, and will usually relieve against them; but this is in no wise a forfeiture. Ad-pellants have not contracted to dig a well, nor to pay rentals. They simply had the privilege so to do, and upon failure to drill within the year, and to pay on or before the time fixed, to lose this privilege; in the words of the trial court:
“ ‘The court concludes as a matter of law that, said rental not having been paid on or before said due date, said lease is forfeited by force of its own terms.’ ”

Although we have distinguished the Gloyd case from the instant case, in my opinion the reasoning in the Appling case is sounder than that in the Gloyd case. However, the solution of the problem in those cases cannot be a precedent for the decision in the instant case, because as pointed out hereinabove, the mistake' was not brought about by causes beyond the control of the Southern Natural Gas Company.

The effect of this decision, in my opinion, is: First, to wipe out the distinction between the “drill or pay” and the “unless” type leases insofar as the rules of forfeitures as to those leases are concerned; second, to place on the lessor in an “unless” type lease a duty — never contemplated by the parties to the lease — of informing the lessee when an error has been made by the lessee in fulfilling the conditions of the lease, and to require such lessor to give the defaulting lessee an opportunity to correct such error; and, third, to alter completely and rewrite the contract, change the intention of the parties as to the nature of the contract when the equity and justice of the case does not require it; and, further, to impose certain duties on the lessor which she. did not assume under the contract, as pointed out by Justice McCALEB in his dissenting opinion.

For these reasons I respectfully dissent.

McCALEB, Justice

(dissenting).

The contract herein provides: “If operations for drilling are not commenced * * * on or before one year from this date, the lease shall then terminate * * * unless on or before such anniversary date lessee shall pay or tender to lessor * * In my view, the failure of defendant to tender the correct amount of rental works an immediate dissolution of the lease,- according to its clear and unambiguous provisions. The majority, however, being unable to sustain defendant’s plea of estoppel, has nonetheless refused to enforce the forfeiture provided by the parties by imposing three alleged equitable duties upon the lessor, (1) to ascertain the correct amount of rent payable under the assignment, (2) to notify the defendant that it has not paid the amount due and (3) to give it an opportunity to repair the breach— obligations which she did not assume under the contract.

For this reason and the views expressed in the separate opinion of Justice HAWTHORNE (in which I concur), I respectfully dissent.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    LEVY v. STEPHENS et al.
    No. 7194.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 1948.

      W. W. McDonald, of Shreveport, and James W. Jones, Jr., of Natchitoches, for appellants.
    Gahagan & Pierson, of Natchitoches, for appellee.
   HARDY, Judge.

This suit was instituted as a possessory action by plaintiff, who prayed that she be quieted in her possession and ownership of a certain described tract of land located in Natchitoches Parish, Louisiana, as against the disturbance of the defendant. After some preliminary pleadings the defendant answered, alleging his ownership of the tract of land involved and calling in warranty the St. Denis Securities Company, Inc., the Rio Hondo Land Company, Inc., and James W. Jones, Jr., his vendors. Warrantors answered, alleging ownership and valid title, subject to their deed of conveyance to the defendant of date October 21, 1944.

This action was instituted on November 20, 1944, was first tried in 1945, reopened for the purpose of receiving additional evidence in 1947, and judgment was rendered by the District Court and signed on January 16, 1948. The judgment rejected the demands and claims of the defendant and warrantors as plaintiffs in a petitory-action, but gave judgment in favor of the defendant against his warrantors in the sum of $200.00, together with interest and costs. Plaintiff’s demand for damages for trees cut from the property described were rejected. From this judgment defendant and warrantors have appealed.

A plea of prescription of 10 years was filed on behalf of defendant and warran-tors, which plea is urged on appeal before this Court. Inasmuch as our finding on the facts disposes of the point raised by the plea, our opinion will be confined to the merits of the case.

There is no question of law before us in this case and the resolution of the litigation rests squarely upon a finding of fact.

The dispute involves a question of title to a triangular-shaped tract of land embracing approximately one-tenth of an acre lying in the fork of the roads formed by the junction of Highway No. 20 and the Oak Grove or Spanish Lake graveled road designated as Highway C-1662, some threc- or four miles west of the City of Natchi-toches, Louisiana, in Section 38, Township 9 North, Range 8 West.

Plaintiff alleges the acquisition of prop erty embracing this tract of land by inheritance from her deceased husband, Sam Levy, who acquired title by conveyance from J. S. Jolly through deed dated March 31, 1927. Defendant claims title by virtue of deed of conveyance from St. Denis Securities Company, Inc., Rio Hondo Land Company, Inc., and James W. Jones, Jr. by deed dated October 21, 1944.

It appears that James W. Dixon, a common ancestor in title, owned a tract of land of some 800 acres, more or less, lying on each side of the Spanish Lake Road at and near its intersection with the Natchitoches-Powhatan Highway (now Highway 20). In the deed to Sam Levy the center of the Spanish Lake Road was designated as the south boundary of the tract conveyed. In the deed dated November 28, 1921, from Dixon to John R. Jones, from whom J. W. Jones, Jr. acquired by conveyance dated December 5, 1932, the tract conveyed is described as being bounded on the north by the Spanish Lake Road. The deed from John R. Jones to James W. Jones, Jr. specifically sets forth the intention of the vendor to sell all of “that certain tract of land acquired by him and owned by him south of said road” acquired by the conveyance from Dixon. A sketch of the tract of land conveyed, by the instrument referred to comprising approximately 3% acres, which is noted on the deed, shows the location to be south of the Spanish Lake Road.

It is evident beyond any question that the Spanish Lake Road constituted the boundary between the respective owners from whom the litigants in this case derived title, and it is obvious that the road was fixed as the south boundary of the Levy tract and the north boundary of the Jones tract.

This, being the case it would be easy of determination, save for the fact that it is the contention, zealously urged on behalf of the defendant and warrantors, who occupy the position of plaintiffs in a petitory action, that there has been a change in location of the Spanish Lake Road, since the time when it was fixed as the boundary, of such nature and extent as would throw the tract of land here involved north of the presently existing Spanish Lake Road, whereas the same tract was originally south of the road as it existed at the time of the conveyance in question. This is the proposition of fact upon which this case turns and which was resolved against the contentions of defendant and warrantors and in favor of the original plaintiff in suit.

It is well established that defendant and warrantors, having converted this suit into a petitory action, are charged with the burden of proof under which it is incumbent upon them to establish their rights on the strength of their own title and not on the weakness of that of their opponent.

Defendant and warrantors rely upon the testimony developed in the examination of some 19 witnesses, the gist of which testimony is to the effect that a change was made in the location of what was known as the old Spanish Lake Road at the time the same was taken over and graveled by the State under the designation of Highway C-1662 in or about the year 1940. The testimony of these witnesses was analyzed, and we think correctly, by the learned Judge of the District Court in assigning his reasons for judgment. The District Judge did not question, nor do we, the entire good faith and the truthfulness of the witnesses. But the fact remains that the memory of man is a frail faculty which is not always reliable. In the instant case we think the character of testimony relied upon by defendant and warrantors is considerably less dependable than that submitted in behalf of plaintiff. In addition to the testimony of several lay witnesses who were very positive that the road had not been changed, plaintiff offered the expert testimony of one Gainnie Hyams, backed by two sketches of surveys, one of which was made in 1921 and another in 1939. Mr. Hyams’ qualifications appear to be such as demand especial respect for his testimony. At the time of trial he was 74 years of age; had been a resident of Natchitoches Parish for almost sixty years; a qualified surveyor for SO years; served at one time as Parish Assessor and was the Parish Surveyor at the time of trial. Mr. Hyams testified particularly with reference to the plat of his survey made in June, 1939, at which time the State had not taken over and graveled the Spanish Lake Road. In connection with the litigation at hand it was shown that Mr. Plyams had made another survey about a month before trial which checked almost exactly with the survey evidenced by the plat prepared in 1939. The exactness of the two surveys is demonstrated by the fact that he showed an error of only some 12 to 18 inches in the location of the points of the survey. The testimony of this witness was definite and positive on the point that there had been no change in location of the Spanish Lake Road at the situs of the property in dispute.

This conclusion is borne out by the introduction of plan and profile blueprints prepared by the State Highway Department covering State Route C-1662 approved in November, 1939. These prints convince us that the highway C-1662 at and in the immediate vicinity of the 'junction with Louisiana Highway No. 20 was built exactly ovethe then existing road known as the old Spanish Lake Road.

We think the error on the part of the numerous witnesses who testified on behalf of defendant and warrantors was induced by the fact that the old Spanish Lake Road was indeed changed to the extent of being considerably widened. This fact doubtless impressed these witnesses to such extent that they testified in utter good faith some years later to circumstances with respect to construction of the new road under the mistaken impression that there had been a change in location.

Another material factor in -the consideration of this matter appears from an examination of the right-of-way grants to the State of Louisiana. By instrument dated December 18, 1939, Samuel Levy granted to the State of Lousiana a right-of-way for the particular use of the State in the location and construction of Road No. C-1662. The property granted for the right-of-way set forth is described .as being a strip or parcel of land having a width of 30 feet from the center line to the right, or north side, or a total right-of-way of 30 feet in width between survey stations 1 / 96.4 and 14 / GO. A similar conveyance from the Rio Hondo Land Company, Inc. by James W. Jones, Jr., on the same date, granted a strip or parcel of land having a width of 30 feet from the center line to the left or south side, beginning at survey station 1 / 96.4, intersection of Road No. C-1662 with State Road No. 20, and extending to survey station 14 / 00, north property line. After passing the point designated as survey station 14 / 00 the act of conveyance grants a strip 30 feet on each side of the' center line, or a total right-of-way of 60 feet in width, for a distance designated with respect to survey stations. Reference to the highway plan and profile prints of Highway No. C-1663 shows that the area between stations 1 / 96.4 and 14 / 00 includes-the entire property line within which the lands of Levy and Jones were contigous.

It is obvious that if the plan for Highway- C-1662 contemplated any change with respect to the center line thereof, the respective rights-of-way of 30 feet from Levy and 30 feet from Jones would have no meaning. That the highway department was careful in its negotiation for rights-of-way is amply demonstrated by the fact that the entire right-of-way of 60 feet beyond station 14 / 00 was obtained from Jones. If it was proposed to relocate the center line of the' road, and if, in fact, it was relocated, then clearly the State failed to obtain a proper right-of-way. This, however, is beyond the facts since there is not the slightest reason to conclude that any relocation was proposed or made between the points considered.

In further support of the conclusion reached by the District Judge there are other circumstances which have impressed us during our consideration of the record. There is testimony to the effect that both this defendant, E. J. Stephens, and James W. Jo-nes, Jr., one of the war-rantors, attempted to buy the tract here in dispute from this plaintiff. Additionally, it is noted that there was introduced in evidence the record in a suit of Mrs. Lee Craig Levy against Mrs. George Clemons, which involved the same property. The judgment of the District Court in the suit referred to, which recognized plaintiff, Mrs. Lee Craig Levy, as the owner of the tract of 45^4 acres, was rendered by Hon. James W. Jones,' Jr., who was then the Judge of the Tenth Judicial District Court, and who now appears in this suit as one of the warrantors. Conceding the point that the judgment in the Clemons suit is not necessarily binding upon the parties to this litigation, it is nonetheless a fact of persuasive effect that -the trial Judge adjudicated the question of title and ownership to a tract of land to which he is now claiming title and ownership without imposing his claim at the time. On appeal to this Court the judgment of the District Court, with some modifications and amendments, was affirmed. Levy v. Clemons, La.App., 3 So.2d 440.

In her petition plaintiff claimed certain damages for the cutting of trees located on the property described, which demand, however, was rejected by the District Court. Since no answer to the appeal urging this relief has been filed in this Court by plaintiff, it follows that the judgment of the District Court in this respect must be affirmed.

After careful consideration of the rather voluminous record before us in this case, for the reasons which are above set forth, we find no manifest error in the resolution of the question of fact determined by the. District Judge, which would in any degree justify a reversal of the judgment appealed from. We observe that the formal judgment of the District Court did not include a description of the property involved, as required by law, and, accordingly, we correct this defect, ex proprio motu, in our decree.

For the reasons assigned the judgment appealed from is amended and as amended is affirmed, and it is now ordered, adjudged and decreed that the demands of defendant and warrantors as plaintiffs in a petitory action be and the same are hereby rejected, and the possession and ownership of plaintiff, Mrs. Lee Craig Levy, is recognized and confirmed in and to the property described as being: “That portion of Sec. 38, T. 9, R 8, lying in the fork of the Natchi-toches-Spanish Lake and the Natchitoches Powatan road commencing in the middle of the Spanish Lake road where the Section line between Sec. 37 & 38 cross said road which point is 31.5 chains southwest corner of Sec. 38, thence North 39 degrees 39' East along the line between sections 37 & 38 29.20 chains to the center of the Powatan-Natchitoches Road, thence Southeast down the center of the said road to point 1, chain west of its intersection with the Spanish Lake Road, thence in a Easterly direction down the center of the Spanish Lake Road to the point of beginning, said tract containing 45% acres of land.”

It is further ordered, adjudged and decreed that the demands of plaintiff for damages for trees cut from the property described be and the same are hereby rejected.

It is further ordered, adjudged and decreed that there be judgment herein in favor of the defendant, E. J. Stephens, and against his warrantors, the St. Denis Securities Company, Inc., Rio Hondo Land Company, Inc., and James W. Jones, Jr., in the amount of $200.00, together with legal interest thereon from date of judicial demand until paid.

It is further ordered that all costs of this suit be and they are taxed against the said named warrantors.


author: LE BLANC, Judge.

text:
    AUSTIN v. TOWN OF KINDER.
    No. 3013.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1948.

      C. W. Berry, Jr., of Oakdale, for appellant.
    Reed & Holloman, of Lake Charles, for appellee.
   LE BLANC, Judge.

In this suit plaintiff seeks to recover from the town of Kinder, the sum of $601.67 for licenses paid by her under ordinances of the said town which, she alleges, it had no right, power or authority to levy.

In her petition plaintiff alleges that she is and has been engaged in the business of retail dealer in alcoholic beverages in the town of Kinder since the year 1945 and since 1945 she has engaged in a general retail liquor business, or what is known and conducted as a saloon where alcoholic beverages are sold at retail by drink or otherwise.

She then alleges that on January 1, 1945, the town of Kinder, under an alleged ordinance levying a license tax on a package liquor store required that she pay the sum of $566.67 as a license or permit to conduct a package liquor store business and during the year 1947 the said town, through an alleged ordinance for operating a retail beer business, required that she pay also the sum of $35 as a license for operating the business of selling beer, wine, porter and ale. She annexed to her petition a license issued by the town of Kinder dated June 11, 1945, showing payment of the sum of $566.67 and granting her a permit to pursue and follow the occupation of package liquor at retail for the year ending December 31, 1945, and also a permit dated April 17, 1947 upon her having paid a fee of $35 to engage in the business of retail sale of beer within the corporate limits of the town, at one place of business.

Other than as herein outlined the petition contains no further allegation save the one that repeated amicable demand has been made without avail.

The defendant town of Kinder, represented by its mayor and Board of Aldermen, filed an exception of no cause or right of action to plaintiff’s petition. This exception was overruled by the trial judge and defendant having failed to file an answer or any further pleadings, judgment by default was entered in favor of the plaintiff which in due time was confirmed and made final. From that judgment this appeal was taken.

It seems to have been the contention made in behalf of the defendant in the lower court that no remedy had been provided by statute for the recovery of licenses paid under an erroneous belief that the ordinance imposing the same applied to the business being conducted by the person who paid the same. We say that must have been the contention made because apparently the case of City of New Orleans v. Jackson Brewing Co., 162 La. 121, 110 So. 110, in which such ruling was made, is the authority that was relied upon.

The answer made for the plaintiff to that contention was that since the decision of the case cited, the Legislature, in carrying out the provision of Sec. 18 of Art. X of the Constitution of 1921, that it enact “a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him” adopted two acts affording the tax payer such remedy. One was Act 16- of the Second Extraordinary Session of 1934 and the other Act No. 23 of the Second Extraordinary Session of 1935. The case of Triangle Oil Co. v. City of New Orleans, La.App., 5 So.2d 558, was cited as authority showing that these two statutes, particularly the latter, provided such a remedy and we take it that it was on the basis of that authority that the exception of no cause or right of action was overruled by the trial judge.

Practically the same contentions are made in the briefs on which the case was submitted to this court with this elaboration on the part of counsel for defendant: That conceding there was a remedy provided by Act No. 23 of the Second Extraordinary Session of 1935 in favor of license — or tax-payers who find themselves in the position of the plaintiff in this case, the act further outlined a certain procedure which had to be followed before suit could be filed and plaintiff’s petition was ■void of any allegations showing that those requirements of the statute had been observed. It was suggested that as nothing was said in the opinion in the case of Triangle Oil Co. v. City of New Orleans, supra, on this point, it may well have been that the procedure directed in the act had been carried out. Regardless of this, however, the decision in the present case has to be governed by the more recent case of A. Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224, in which it was held that Act No. 16 of the Second Extraordinary Session of 1934 and Act No. 23 of the Second Extraordinary Session of 1935 had both been merged into Act No. 330 of 1938 by which they were amended and reenacted and they had, accordingly, ceased to exist. The prevailing act under which plaintiff in this case had to proceed therefore, is Act No. 330 of 1938. Section 1 of that- Act specifically provides “that no court of this State shall issue any process whatsoever to restrain the collection of any tax imposed by the State of Louisiana, or by any political subdivision of the State of Louisiana, under authority granted to it by the Legislature or by the Constitution.” It appears then that any one charged with the payment of a tax under a statute or an ordinance which he may consider illegal or unconstitutional cannot invoke injunctive relief from the courts to resist payment. Instead, the act further provides in Sec. 2 (a) a method of procedure to be followed by him, under which he must pay the amount found due and then directs the disposition to be made by the collecting officer of the amount paid to the end that it can be refunded in the event the court should eventually decide in a suit brought for recovery, that he did not owe the tax. On his part the person resisting payment shall, according to the terms of the act, “pay the amount found due by the officer designated by law for the collection of the said tax and shall give the officer notice, at the time, of his intention to file suit for the recovery of the same; * * By further provision of the act, the officer designated by law for the collection of the tax, shall, upon receipt of notice of intention that suit will be filed, segregate and hold the amount paid for a period of thirty days and in the event suit is filed within that period for recovery of the amount paid, he shall continue to hold the same segregated pending the outcome of the suit.

In the case of A. Sulka & Co. v. City of New Orleans, supra, it was held that compliance by the tax payer with the requirements of the act, especially those regarding notice of suit to be given and the actual filing of suit within thirty days thereafter, was necessary if his suit was to be maintained. In this case plaintiff does not allege compliance by having given notice of her intention to file suit, at the time she paid the licenses she complains of and furthermore her suit was filed far more than thirty days after she had made the payment in each case. It follows therefore that her suit cannot be maintained.

We have concluded therefore that the exception of no right of action filed on behalf of the defendant should have been sustained and necessarily the judgment of the district court will have to be reversed.

For the reasons stated it is now ordered, adjudged and decreed that the judgment appealed from be and the same is hereby reversed, annulled and set aside and it is further ordered, adjudged and decreed that the exception of no right of action herein filed on behalf of the defendant, Town of Kinder, be and the same is hereby sustained and accordingly plaintiff’s suit is dismissed at her costs.


text:
    Charley NEVILS v. TOWN OF KINDER.
    No. 3012.
    Court of Appeals of Louisiana. First Circuit.
    June 30, 1948.
    C. W. Berry, Jr., of Oakdale, for appellant.
    Reed & Holloman, of Lake Charles, for appellee.
   LE BLANC, Judge.

This case was consolidated for argument and submission with the case of Austin v. Town of Kinder, La.App., 36 So.2d 48, in which an opinion and decree is this day being rendered. The issues presented are the same and save the difference in amount, so is the demand.

For the reasons stated in the opinion in the case of Austin v. Town of Kinder, it is now ordered, adjudged and decreed that the judgment appealed from in this case be and the same is hereby reversed, annulled and set aside and it is further ordered, adjudged and decreed that the exception of no right of action herein filed on behalf of the defendant, Town of Kinder, be and the same is hereby sustained and accordingly plaintiff’s suit is dismissed at hie costs.


author: REGAN, Judge.

text:
    HAAS v. HAYES.
    No. 18947.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.
    Robert J. Oster, of New Orleans, for ap-pellee.
    R. H. Burton, of New Orleans, for appellant.
   REGAN, Judge.

The plaintiff, Mrs. Carol Conner Haas,, brought this suit against the defendant, Joseph N. Hayes, claiming the sum of $500.00 for personal injuries and $141.60 for property damage, alleged to be due as a result of an intersectional collision between her 1936 Oldsmobile Sedan and defendant’s 1937 1,4-ton Ford Pick-up Truck.

Defendant filed an exception of no right of action which was overruled. He then answered denying that he was in any way at fault and averring that the accident was due solely to the negligence of plaintiff in failing to afford him the right of way since he had preempted the intersection and in failing to maintain a proper lookout.

There was judgment below in plaintiff’s favor in the sum of $291.60 and defendant has appealed.

The accident occurred in a drizzling rain on April 1st, 1947, shortly after 5 :00 P. M. at the intersection of N. Carrollton Avenue and Bienville Street, this City. Both streets have dual lanes divided by a neutral ground, and N. Carrollton Avenue is designated as a “through street.” Plaintiff was driving in Carrollton Avenue, away from City Park, towards Bienville Street and slightly to the right of the center thereof. The defendant was driving in Bienville Street, close to the left curbing, away from the river, towards Carrollton Avenue. Pie came to a stop and then proceeded to traverse the neutral ground section of Carrollton Avenue. The collision occurred in the downtown lake corner of this intersection.

Plaintiff contends that she was driving about twenty miles per hour at the time of the accident and that defendant was driving about thirty miles per hour. Defendant, on the other hand, states that he was driving about five to eight miles per hour, and that plaintiff had come to a stop at the intersection, then suddenly set her car in motion, to a speed of ten or twelve miles per hour, at which time the accident occurred. Plaintiff denies that she came to a stop at this intersection.

The left front of the plaintiff’s car was damaged in the amount of $141.60. Defendant’s truck sustained damage to the right rear portion of the front fender, running board and door post. He reconvened for damages in the sum of $7.50 However, he has, an appeal, abandoned this plea.

The defendant admits that plaintiff’s automobile was her separate property and it was damaged to the extent of $141.-60, but contends that she has no right of action for the property damage she suffered by virtue of the accident, because she is a married woman and that this suit should have been filed jointly with her husband. This contention is untenable. It is obvious, both from the allegations contained in the petition and from the evidence adduced on the trial of this case, that the Oldsmobile car in question was the separate and para-phernal property of the wife and not of the community. Therefore, the wife is liable for debts contracted for the benefit of her separate property because, since the passage of Act No. 219 of 1920, as amended by Act No. 132 of 1926, a married woman may bind herself with reference to her separate property and may sue and be sued. Godchaux & Mayer, Ltd. v. Richardson, 11 La.App. 199, 123 So. 178; Dickinson Motors Co. v. Sullivan, 6 La.App. 329; Dickerman, et al. v. Reagan, 2 La.Ann. 440; Dailey v. Pierson, 5 La.Ann. 125; Patterson v. Frazer, 8 La.Ann. 512; Succession of Penny, 14 La.Ann. 194.

Turning now to a consideration of the merits, it is the defendant’s principal contention that since he had preempted the intersection the plaintiff should have afforded him the right of way to which he was entitled by this preemption. A careful study of the record, however, convinces us that defendant did not preempt the intersection, but that both vehicles entered at the same time, the plaintiff traveling at the rate of about twenty miles per hour and the defendant proceeding at the rate of about thirty miles per hour. Since neither car had preempted the intersection we must apply the provisions of Article V, Section 15(a) of the Traffic Ordinance of the City of New Orleans, No. 13,702 C.C.S., which reads in part as follows:

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

Since plaintiff was the driver on the right defendant should have yielded to her the right of way.

We are impressed by the fact that the defendant herein admitted, in the presence of one of plaintiff’s witnesses, that he would like to make financial arrangements, through his boss, “To take care of the damages”, which plaintiff had incurred to her car by virtue of this accident. This conversation occurred a very short time after the accident, in the garage to which defendant had driven the plaintiff to arrange for the repairs to her car.

The plaintiff suffered painful injuries to her arm, which necessitated the use of a sling for approximately two weeks, and painful contusions to her hip. We do not believe the award of $150.00, made by the lower court is excessive, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: JANVIER, Judge.

text:
    LUCIA v. DE LAGE et al.
    No. 18998.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.
    Kullman & Lang, of New Orleans, for plaintiff and appellee.
    Sidney Wright and Lemle, Moreno & Lemle, all of New Orleans, for defendants and appellants.
   JANVIER, Judge.

At about 4:30 o’clock on the morning of August 10, 1947, there was a collision between two automobiles at the corner of Poydras and Carondelet Streets in New Orleans. One of the cars, owned and driven by plaintiff, Lucia, was a taxicab which was on its way down Carondelet Street and the other, a Buick, driven by Joseph E. De Lage, Jr., was going in Poy-dras Street towards the Mississippi River. They met at just about the center of the wide intersection, the Buick striking the taxicab on the left, rear fender. The Buick stopped within a very few feet and the taxicab proceeded across Poydras Street, swerved to its left and mounted the curb of the sidewalk on the lower, lake corner of the intersection.

Lucia, alleging that the the collision was caused by negligence of DeLage, brought this suit against him, claiming $179.39 as the cost of repairing the damage which his taxicab sustained, and $100 as the earnings which he lost as a result of being deprived of the use of his taxicab during the ten days it was out of service undergoing repairs. He alleged that DeLage was negligent in the following particulars:

“A. In driving his car and in entering an intersection at an unlawful rate of speed.
“B. In failing to maintain and observe a proper lookout.
“C. In attempting to cross an intersection, ignoring the presence of petitioner’s car which was already in said intersection and which had the right-of-way.
“D. In failing to maintain his car under proper control.”

In a supplemental petition Lucia alleged that the St. Paul Mercury Indemnity Company is the liability insurance carrier of DeLage, and he prayed for solidary judgment against that company and DeLage for the said amount of $279.39.

The Insurance Company and DeLage filed answer in which they denied that De-Lage was in any way at fault and in which they asserted that the collision was caused solely by the negligence of Lucia in that he failed to maintain a proper lookout, failed to keep his vehicle under proper control, and failed “to slacken his speed in the presence of the amber traffic light.” Defendants alleged also that Lucia was negligent in attempting to cross the intersection in spite of the fact that the car of DeLage had already entered it and had “gained the right of way.”

In the alternative that it should appear that there was any negligence on the part of DeLage, defendants averred that the proximate cause of the accident was not this negligence but was the negligence of Lucia, himself, as set forth above.

There was judgment in favor of plaintiff and against both defendants for $179.39 and both defendants have appealed. Plaintiff has answered the appeal, praying that the amount awarded be increased to $279.-39, as originally prajed for.

In addition to the two drivers, DeLage and Lucia, there was one eye witness to-the accident, Oliver Williams, who was employed by a garage, located on Caron-delet Street about 100 or 125 feet below Poydras Street, and who was -standing in the entrance of the garage looking towards, the intersection as the two vehicles approached and entered it. All three of these witnesses agree on several things— in the first place, that the traffic light was fixed on amber, meaning that vehicles entering from all directions could proceed but must exercise caution and they agree, too, that just before the Buick of DeLage reached the intersection, he brought it to a stop and that as the taxicab was about to reach the intersection, its driver, Lucia, reduced its speed. They all agree that the taxicab did not stop and that just after the Buick was brought to a stop the speed bf the taxicab, which had been reduced, was accelerated and it proceeded into the intersection. The taxicab had reached a point just at or very shortly beyond the center when the Buick, which had again been started forward, struck it on the rear fender.

DeLage says that after stopping his Buick, he started it again because when he saw Lucia reduce the speed of the taxicab he assumed that Lucia would stop for the crossing and let the Buick cross ahead of it. He said: “I more or less took it for granted that the man was stopping # * *»

At that time he says that the taxicab was from 40 to 50 feet away from the intersection, and, although it may have appeared to him that the taxicab, because it was slowing down would be brought to a stop, we think that he was at fault in not waiting until he could be certain of this and that the cause of the accident was his failure to wait until he was certain that it was safe for him to proceed. According to his own testimony, the last time he saw the taxicab before it entered the intersection, it was only a short distance away and was still in motion. He says that after looking at it at that time, he started his car and that “when I looked up again the cab was in front of me.”

Lucia, on the other hand, had actually seen the Buick stop as though its driver intended to wait and since, at that time he was operating his car at a moderate speed .and could see into the intersection and notice that the only other vehicle in sight was this Buick which had stopped apparently to let him go by, he was not negligent in entering the intersection without coming to a complete stop. It seems quite certain that, after the Buick was brought to a stop, DeLage again started it forward rather suddenly because Williams, the witness who was standing in front of the garage looking at it says that as it started forward he could hear its motor racing.

The record does not indicate that either car was travelling at an excessive speed, though it is true that the taxicab, after the collision, continued across Poydras Street, swerved to its left and mounted the curb. This seems to have been the result of Lucia’s losing control of it rather than the result of its excessive speed. It did not completely cross the sidewalk as DeLage contends. The damage which was sustained by the front of the building resulted not from contact with the taxicab but because the taxicab struck a small news-stand and knocked it into the front of the building.

Our conclusion is that DeLage was at fault and that Lucia was not negligent in entering the intersection as he did.

No reasons were given by the court, a qua, for failure to allow recovery for the loss which plaintiff says he sustained as a result of being deprived of the use of his taxicab for the ten days during which it was undergoing repairs. The only evidence on this item of damage is the testimony of plaintiff, himself, but we are not required to reject his testimony merely because no corroboration is offered. See Franklin v. Texas & Pacific R. R. Co., 35 So.2d 251, decided by us on May 10, 1948. Where a claim is based on the uncorroborated testimony of a plaintiff, a court is not required to reject that evidence but merely to scrutinize it carefully in an effort to determine whether there is about it anything which is unreasonable or which indicates that it is not founded on fact.

We find nothing of that kind here and, in fact, the testimony appears to us quite reasonable. The plaintiff says that according to his income tax return he makes an average of $10 per day from the use of his cab. His testimony indicates plainly that he has no other business and that he spends his full time operating his taxicab. Ten dollars a day is not an unreasonable return to expect from the use of a taxicab and there is nothing else at all which would warrant the belief that this claim is exaggerated.

It is well settled that where a motor vehicle is used in business and the loss of its use for a reasonable time results in a business loss, there may be a recovery on such an item of damage.

In Carkuff v. Geophysical Service, Inc., et al., 179 So. 490, 494, the Court of Appeal for the Second Circuit said:

“* * * The general rule is that recovery of damages for temporary deprivation of use of injured motor vehicle is permissible for the period necessary to make repairs. These should be done promptly, of course. Croft v. Southern Hardwood Lumber Co., 7 La.App. 274; Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436.”

In Drewes v. Miller et al., 25 So.2d 820, 823, we said:

“The law relating to the right of an owner of a damaged vehicle to recover damages for loss of is use is well settled.

In Tornabene v. Rau, 34 So.2d 655, we were presented with a claim of a taxicab operator who was deprived of its use while it was undergoing repairs. He operated the cab himself in the day time and rented it to another driver at night. We allowed recovery for the loss of rent as well as for the loss which he sustained because he could not himself operate it during the day. See also Adam v. English, La.App., 21 So.2d 633. Plaintiff should have been allowed recovery on this item of damage.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is amended by the increase of the amount awarded to $279.39, and, as thus amended, the judgment appealed from is affirmed at the cost of defendants-appellants.

Amended and affirmed.


author: McBRIDE, Judge.

text:
    METRYCLUB GARDENS ASS’N v. COUNCIL.
    No. 18907.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.
    Rehearing Denied Oct. 5, 1948.
    Flanagan & Landry, and Bernhardt C. Heebe, all of New Orleans, for plaintiff and appellant.
    Andrew H. Thalheim, of Gretna, for defendant and appellee.
   McBRIDE, Judge.

Metryclub Gardens Association, the plaintiff, is a nontrading corporation which was organized in 1929 for the purpose of protecting and maintaining as an attractive and permanent residential section the subdivision in Jefferson Parish known as Metryclub Gardens. Its charter authorizes it to receive, possess and exercise all of the rights established in favor of Metairie Park, Inc., and its successors in title, and particularly to enforce the covenants and obligations contained in acts of sale by the Metairie Park, Inc.

During 1937 and 1938 the defendant, Miss Sallie Council, by authentic acts, acquired from Metairie Park, Inc., lots 1 and 2, in square “N” of the subdivision, which front on Duplessis Street and are bounded on the west by Woodvine Avenue and on the east by Park Road, and her home is now located on these lots. Miss Council’s acts of purchase contain the following covenant:

“This property is sold subject to an assessment for the upkeep of the roads, parkways, care, development and beautification of the entire subdivision. This assessment shall be payable semi-annually in advance, on the first days of January and July in each year and shall not exceed fifty cents per front foot per year unless increased by a majority vote of property holders by the front foot through the medium of the Parking Commission organized for that purpose.”

Plaintiff sued defendant for $269.97 representing assessments due from January 1, 1940, to June 30, 1945. Miss Council’s defense is that she did not receive the benefits to which she was entitled, particularly the police protection which plaintiff was required to furnish, and that plaintiff did not carry out its obligations under the agreement.

From a judgment of the Twenty-fourth Judicial District Court for the Parish of Jefferson dismissing the suit, plaintiff has appealed.

In this court, defendant filed an exception of no cause of action, and in urging its maintenance counsel argues that plaintiff’s charter contains no provision empowering it to bring suits, nor is there any evidence attached to the petition showing that this suit was ever authorized. Plaintiff’s counsel contend that the exception strikes at the want of capacity or lack of authority of plaintiff to initiate this suit; that it relates to form and should have been filed in limine litis under C. P. art. 344, and it therefore came too late to have any legal effect.

We find it unnecessary to examine into the timeliness of the exception, as the right to sue in courts of justice to enforce or vindicate their interests is vested in all corporations legally created and existing. Where nontrading corporations are concerned, such authority will be found in Act No. 254 of 1914 § 5, which provides that such corporations “shall be capable in law to sue and be sued * *

Respecting counsel’s contention that there is no authority attached to the petition, we notice that the verifying affidavit was executed by the president of the association and conforms to the provisions of Act No. 157 of 1912, as amended Dart’s Gen.Stat. § 1483, and we know of no provision of law which requires that any special authority or resolution of the board of directors of a corporation be attached to the petition when a suit is brought in the corporate name. There is no merit to the exception.

The defendant herself did not testify, and her complaints and grievances against the association were shown by the testimony oí three witnesses. The gravamen of the complaints is that the board of managers of the association expended most of the assessments collected for improvements and work to Northline Street, and that other locations in the subdivision were neglected. Miss Kitty Council, defendant’s sister and her agent, testified that weeds had never been cut in the vicinity of defendant’s home; that the roadbed of Du-plessis Street had been dug out and refilled with gravel, and in the process of the work gravel was “pitched” onto the sidewalk of square “O” and made an unsightly levee, and also that there exists a hole in Du-plessis Street. She further complained that when oil was spread on the gravel roads none was placed on three strips near defendant’s home, and that the prevalence of dust in the vicinity resulted. There was also some testimony by Miss Council regarding the discontinuance of garbage collection and watchman service, and the lack of proper garden improvements and tree trimming in her vicinity.

As to the complaint about the discontinuance of garbage collection, defendant’s counsel admits that during 1943 she requested that it be discontinued, because she had a garbage disposal unit in her home. Regarding the watchman service, the testimony of the secretary of the association shows that a watchman was regularly employed for the subdivision and that at no time were the residents without this service.

Mrs. Edward B. Ludwig, who resides on Woodvine Avenue, testified that the streets were in a “disgraceful condition,” and the gardens are “just like anybody’s back lots.” It was her opinion that an engineer should have been put on the board of managers. She admitted that there had been a considerable sum of money spent in the subdivision, but said “the money is spent for improvements, all right, but by people who don’t know how to spend it or what to spend it on.”

Felix F. Tranchina, who lives some squares distant from defendant’s property, testified that the association has done nothing toward improving his street, and that he suffers from the dust. His major complaint was that while there had been some work done, Northline Street was the beneficiary and received preference.

The plaintiff association is governed by a board of managers elected each year by a majority vote of the property owners. The members of the board and the officers of the association serve without remuneration. They administer the assessment fund and decide upon the improvements to be effected and the expenditures to be made.

The .secretary of the association testified as to the receipts from 1939 through 1945 and gave a detailed itemization of the expenditures, and it appears that during those years there was a deficit in the treasury of the association.

Benjamin T. Brown and Rev. Donald H. Wattley, members of the -board of managers, testified that all receipts derived from the assessments were expended to the best advantage of all property holders, and that the subdivision has the benefit of garbage collection, watchman protection, street graveling and oiling, and the services of a regularly employed gardener. They stated that most of the funds were expended for improvements on Northline Street, which runs from Palm Street in New Orleans through the subdivision to the Metairie Golf Club, and that it is the main artery of ingress and egress for the residents of Metryclub Gardens; that repeated complaints had been made to the association about the condition of the surface of Northline Street, the most general-complaint being that it was dusty and that persons driving over it had the unpleasant experience of having their cars become dusty and coated with mud. The board of managers deemed it necessary to reconstruct Northline Street, and thirty-two-carloads of gravel were bought and spread on that street and in other sections of the-subdivision.

Their testimony shows that a considerable quantity of gravel was used on all roadways, particularly in the area of the Council residence, and that somewhat in excess of two carloads was used in resurfacing Duplessis Street in front of defendant’s property for a distance of two blocks. They also testified regarding what they termed a “dust allaying program,” which consisted of spreading oil upon the gravel roads. Duplessis Street, Park Road, and Woodvine Avenue were treated in this manner, and the roadway in front of defendant’s property, as well as those contiguous, were oiled, and in this section the highest concentration of oil was used.

From a reading of the record as a whole we fail to find evidence of any discrimination against the defendant. It is true that most of the street work, gardening and tree trimming was done to North-line Street, the principal thoroughfare, but all sections of the subdivision, including the immediate vicinity of the Council home, which seems to -be an unimproved section, received a part of the services.

Mr. Brown and Rev. Wattley stated that theirs was a thankless job, and that they were doing everything which, in their opinion, they deemed best, not for any particular portion of the subdivision, but for the benefit of all its inhabitants, and that while most of the work had been done to Northline Street and the front part of the subdivision, this was necessitated by the fact that that street was the main artery and it was more necessary to keep it in repair than any other in the subdivision.

It appears that the complaints of the defendant and her witnesses amount to criticisms that the board of managers has unwisely spent the money. If such is a fact, there is no ground upon which the defendant is privileged to quit paying the assessments which she is legally bound to pay. It seems to us that if defendant has any grievance along this line, she should air it at a meeting of the association.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Metryclub Gardens Association, and against defendant, Miss Sallie Council, for the full sum of $269.97, with legal interest thereon from judicial demand until paid, and for all costs.

Reversed.