author: GUIDRY, Judge.

text:
    TRAVELERS INDEMNITY COMPANY, Plaintiff-Appellee, v. Milburn J. DUCOTE et al., Defendants-Appellants.
    No. 6801.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Corey, Reed, Bethany & Kogos by Stephen C. Kogos, New Orleans, Roy B. Tuck, Jr., Leesville, for defendants-appellants.
    Ledbetter, Percy & Stubbs, J. Michael Percy, Alexandria, for plaintiff-appellee.
    Provosty & Sadler by Albin A. Provosty, III, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is an appeal from a judgment in favor of Travelers Indemnity Company (Travelers) against defendants-appellants Donald Perkins, Mrs. Cecile Seitz Noble, Earl A. Noble, Jr., Wilson J. Tatman and Eunice Packing Company, Inc. in solido in the sum of $45,000.00 plus attorney’s fees in the amount of $4,500.00. The facts giving rise to this suit are as follows:

On March 3, 1969 Milburn J. Ducote d/b/a Avoyelles Livestock Auction Market and Deridder Livestock Market, Mansura, Louisiana applied to Travelers for a performance bond in the sum of $45,000.00 as required by law. Four names appeared as potential indemnitors on this bond: Milburn J. Ducote, Howard J. Ducote, Earl A. Noble, Sr., and W. J. Tatman. On March 10, 1969, Travelers issued a bond pursuant to the application. On July 3, 1969, Earl A. Noble, Sr., one of the offered indemnitors on the bond application died, and was survived by his wife, Mrs. Cecile Seitz Noble and his son, Earl A. Noble, Jr. On December 15, 1971, Travelers secured a second bond application, identical in every respect to the first application, bearing the signatures of Milburn J. Ducote, Howard Ducote, W. J. Tatman, Donald Perkins, Gerald Wood and W. J. Tatman as president of Eunice Packing Co., Inc. as offered indem-nitors. The number of the bond then outstanding since 1969 was placed on the application, and the outstanding bond remained continuously in force until its cancellation by Travelers in 1974.

As a result of the filing of claims totall-ing an amount in excess of $78,000.00 against Milburn Ducote for his failure to pay monies due for the sale of livestock sold for account of the various claimants, Travelers had to pay the penal sum of the bond, $45,000.00, to Forest Henderson, Trustee for the State of Louisiana in May of 1974. Travelers sought indemnity from all parties signatory to both the 1969 and 1971 bond applications, including the heirs of Earl A. Noble, Sr.

Default judgments were obtained against Milburn J. Ducote, Howard Ducote and Gerald Wood in solido for the sum of $45,-000.00 plus $4,500.00 in attorney’s fees. No appeal has been taken from this judgment. The Noble heirs filed a Motion for Summary Judgment, alleging that the death of their ancestor operated to discharge them from all liability in the instant action, which motion was denied by the trial court. Following a trial on the merits, the trial court rendered judgment in favor of Travelers against Donald Perkins, Mrs. Cecile Seitz Noble, Earl A. Noble, Jr., W. J. Tatman and Eunice Packing Co., Inc. in solido for the amount of $45,000.00 and $4,500.00 in attorney’s fees. Donald Perkins, the Noble heirs and W. J. Tatman have appealed this judgment, denying liability to Travelers on various bases to be herein separately considered. Eunice Packing Co., Inc. has not appealed and the judgment against this defendant is now final.

I. LIABILITY OF DONALD PERKINS

Mr. Perkins seeks to escape liability as an indemnitor on two stated grounds: First, that he did not knowingly execute any agreement concerning a bond to be issued to Milburn J. Ducote, as principal; and, secondly, if it be found that he did in fact knowingly execute the bond application of December 15, 1971 it constituted a mere offer of indemnity which was not accepted and if accepted no notice of acceptance was ever communicated to him.

Mr. Perkins’ signature appears only on the 1971 bond application. Although Mr. Perkins did not categorically deny having signed the bond application, he asserts that if the instrument does bear his signature, such signature was procured through illegality, fraud or duress. As he has no recollection whatever of the actual circumstances surrounding the signing of the application, however, he was unable to indicate what illegal actions were actually taken in order to induce him to sign the instrument. He was likewise unable to produce evidence to establish that the signature on the instrument is not his.

While Mr. Perkins was perhaps unaware of the full import of the proposed continuing indemnity agreement, he was unable to establish that such error resulted in any measure from fault or misrepresentation on the part of Travelers or its agent, The Coco Agency. There being no ambiguity in the terms of the agreement, it must be presumed that Perkins knew of its contents. Shell v. Union Sawmill Co., 159 La. 604, 105 So. 728 (1925); St. Landry Loan Company v. Avie, 147 So.2d 725 (La.App. 3rd Cir. 1962); Trinity Universal Insurance Company v. Good, 202 So.2d 379 (La.App. 4th Cir. 1967), writ ref. 251 La. 396, 204 So.2d 575.

Mr. Perkins also asserts that the 1971 bond application constituted only an offer by the proposed indemnitors, which was never accepted by Travelers. It is urged that no new bond was ever issued in response to this later offer, and that issuance of a new bond would have been a necessary prerequisite to a valid acceptance on Travelers’ part. We do not agree.

LSA-C.C. Article 1811 provides:
“The proposition as well as the assent to a contract may be express or implied: Express when evinced by words, either written or spoken;
Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”

The record indicates that on March 10, 1969, a bond was issued by Travelers, apparently in response to the bond application of March 3, 1969. The record further indicates that sometime after hearing of the death of one of the original proposed in-demnitors (Earl Noble, Sr.), Travelers sought replacement indemnity to secure the outstanding bond. It is ostensibly for this purpose that the 1971 application was submitted to Travelers containing the names of new proposed indemnitors. Since the continuous maintenance of a bond was statutorily mandated in order for Ducote’s business to remain in operation, and since the 1971 application referred to the same bond number which appeared on the bond then outstanding since 1969, it is clear that only one bond was issued and continuously maintained by Travelers until its cancellation in 1974. We find that Travelers’ action in allowing the bond to remain continuously in force signified its satisfaction with the security offered by the new indemnitors, and constituted a valid acceptance of the indemnity offer within the intendment of LSA-C.C. Article 1811.

We find, however, no evidence in the record to indicate that when Travelers’ accepted the 1971 offer of indemnity, it apprised Mr. Perkins of its acceptance until nearly three years later when it cancelled the bond and sought remuneration from him. Mr. Perkins testified at trial as follows:

“Q. Mr. Perkins, were you ever requested by anyone, and if so, whom, to furnish any kind of a financial statement?
A. No sir .
Q. And, prior to the letter in June of 1974, had you ever had any kind of contact, and if so, what was the nature of that contact, with Travelers Indemnity Company with reference to this bond.
A. I ain’t never had any.”

Although Travelers produced letters from other indemnitors on the bond, namely Howard Ducote and Wilson Tatman, stated that they understood that a bond had been issued by Travelers on behalf of Milburn Ducote, which they could ultimately be held liable on, Travelers failed to produce such a letter from Mr. Perkins. In sum, no evidence was offered on behalf of Travelers to refute Mr. Perkins’ contention that he was never apprised of Travelers’ issuance of a bond on behalf of Milburn Ducote and its acceptance of his indemnity offer.

LSA-C.C. Article 1797 provides:

“When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This beins: a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.” (Emphasis added)
LSA-C.C. Article 1809 provides:
“The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances. which raise such implication, are known to the party proposing: he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.” (Emphasis added)
LSA-C.C. Article 1819 provides:
“Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied.
as is provided in the preceding paragraph, but also where it has been produced by—
Error;
Fraud;
Violence;
Threats.” (Emphasis added)
A necessary prerequisite to the confection of a contract in this state is the communication of the offeree’s acceptance of the offer- or’s offer, be it express or implied from the circumstances of the transaction.

Travelers urges that the submission of the bond application produced an “execu-tory contract” between the parties which did not require acceptance by Travelers. We disagree, and find that mere submission of a self-styled “Application” for a bond produced no manner of contract, but was rather an application for a bond coupled with an offer of indemnity subject to acceptance by Travelers.

The record indicates that prior to 1974, there was no direct contact between Perkins and Travelers with regard to this bond. The record likewise raises considerable doubt as to whether there was even direct contact between the parties at the time that the bond application was actually signed by Perkins. The instrument is entitled an “Application”, and the following language from the application further supports the conclusion that perfection of the agreement was solely at the discretion of Travelers:

“SHOULD The Travelers Indemnity Company . . . execute, or procure the execution of the suretyship hereinbe-fore applied for ... the undersigned . . jointly and severally and for each other undertake and agree . ” (Emphasis added)

In addition, the record indicates that after securing the 1971 application, Travelers sought financial statements on at least some of the proposed indemnitors. The terms of the instrument in no way placed upon Travelers the obligation of allowing the existing bond to remain in force or of issuing a new one upon receipt of the application.

In principle, this proposed agreement of indemnity is much like an offer of guaranty, whereby one offers to reimburse another for losses incurred through the actions of a third party.

In the early U.S. Supreme Court case of Davis Sewing Machine Co. of Watertown, N. Y. v. Richards and another, 115 U.S. 524, 6 S.Ct. 173, 29 L.Ed. 480 (1885), the Court considered the question of the necessity of giving notice to the potential guarantor

that his offer of guaranty had been accepted. Therein the Court stated:

“The decision of this case depends upon the application of the rules of law stated in the opinion in the recent case of Davis v. Wells. 104 U.S. 159, 26 L.Ed. 686, in which the earlier decisions of this court upon the subject are reviewed. Those rules may be summed up as follows: A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration, however, small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is in legal effect an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.” 6 S.Ct. 173 at p. 175

The courts of this state have likewise recognized that there is a distinction to be drawn between an offer to become a guarantor, which requires notice of acceptance by the guarantee to the guarantor to complete the contract, and a direct promise or guaranty, whereby the notice is either expressly or impliedly waived. In People’s Bank of New Orleans v. Lemarie, 106 La. 429; 31 So. 138 (1901), our Supreme Court stated:

. . care should be taken to mark the difference between a perfect guaranty and the mere offer to become a guarantor. In the former case no formal acceptance is necessary. In the latter the offer or tender of guaranty must be accepted, and the acceptance notified to the offerer, in order that it may become a binding contract.” at p. 139

In Texas Company v. Hudson et aL, 155 La. 966, 99 So. 714 (1924) the Court stated:

“A contract of guaranty, like any other contract, requires the mutual consent of the parties. An offer to guarantee the payment of a credit to be extended to a third party is not binding upon the party making the offer until it is accepted by the party to whom the offer is made and until the party making it is notified of its acceptance. Bank of Illinois v. Sloo & Byrne, 16 La. 539, 35 Am.Dec. 223; Lachman & Jacobi v. Block & Bro., 47 La.Ann. 505, 17 So. 153, 28 L.R.A. 255; Douglass v. Reynolds, Byrne & Co., 7 Pet. 113, 8 L.Ed. 626; and Davis Sewing Machine Co. v. Richards, 115 U.S. 524, 6 S.Ct. 173, 29 L.Ed. 480. To the same effect, see Louisiana & Western Ry. Co. v. Dillard, 51 La.Ann. 1484, 26 So. 451; People’s Bank v. Lemarie, 106 La. 429, 31 So. 138; Heitmann & Co. v. K. C. S. Ry. Co., 136 La. 825, 67 So. 895; Hibernia Bank & Trust Co. v. Succession of Cancienne, 140 La. 969, 74 So. 267, L.R.A. 1917D, 402; and Davis v. Wells Fargo & Co., 104 U.S. 159, 26 L.Ed. 686.” at pp. 715-716

We find the above stated principles to be likewise applicable to the instant offer of indemnity. Mr. Perkins was entitled to timely notification that a bond had been issued on behalf of Milburn J. Ducote pursuant to the application filed by him and that the former’s offer of indemnity had been thereby accepted. The record reflects no notification of any kind and in fact no contact whatever between Travelers and Perkins following the latter’s execution of the offer on December 15,1971 until receipt by Perkins of Traveler’s demand letter in June of 1974. Under these circumstances it cannot be said that the offer of indemnity was still viable. Although under R.C.C. Article 1801 the party proposing is presumed to continue in the intention which his proposal expressed, a party seeking to avail itself of the terms of this article must make its acceptance known within a reasonable time. Parish of East Baton Rouge v. Industrial Enterprises, Inc., et al., 340 So.2d 367 (La.App. 1st Cir. 1976). For the above reasons we find that Perkins cannot now be held liable on the basis of the offer of indemnity dated December 15,1971 and the trial court erred in rendering judgment against him.

II. LIABILITY OF MRS. CECILE SEITZ NOBLE AND EARL NOBLE, JR.

The trial court found liability on the part of Cecile Seitz Noble and Earl Noble, Jr. as heirs of Earl Noble, Sr., who had signed the 1969 bond application. The elder Noble died on July 3, 1969, nearly three months after Travelers had issued the bond herein in dispute. Among other arguments raised on appeal, it is urged that neither Earl Noble, Sr. nor his heirs were ever notified by Travelers that it had issued a bond pursuant to his offer of indemnity, and that as a consequence there could be no liability on the part of appellants. We find merit to this argument and reverse the trial court’s decision insofar as it finds liability on the part of Mrs. Cecile Seitz and Earl Noble, Jr.

For the reasons already stated, we have found that without notification by Travelers to the potential indemnitors of its intention to issue a bond on the strength of their offer of indemnity, there could be no contract of indemnity upon which to base liability. Earl Noble, Jr. testified at trial that he never received notification from Travelers concerning the issuance of a bond until after the institution of the instant suit. He testified that to his knowledge, neither his mother nor father received such notification either. Of course appellants’ allegations rest upon the proof of a negative — that Earl Noble, Sr. never received notice of acceptance by Travelers. While the general rule of evidence pertaining to the proof of a negative places the burden on the party seeking to prove such fact, there is an exception drawn when the matter is peculiarly within the knowledge of the adverse party. McNeely v. U. S. Fidelity and Guaranty Co., 69 So.2d 600 (La.App. 2nd Cir. 1953); 31A C.J.S. Evidence §§ 112-113.

In light of the fact that Earl Noble, Sr. could not testify before the court, the party most cognizant of the facts necessary to decide this issue was Travelers. Mr. Andre Coco, Travelers agent, testified that it was not the general practice for potential indemnitors to be notified of the acceptance of their offer. Mrs. Ivy Jones, presently an underwriter for Travelers, testified that the only notice sent out pertaining to Earl Noble, Sr.’s liability on this bond was a letter dated January 30,1975, notifying the Noble heirs that payment on the bond had already been made by Travelers. Mrs. Jones further testified:

“Q. Would it be a fair statement, then, that there was no notice issued by Travelers Indemnity to Earl Noble, Sr.?
A. I believe it would be.”

The record is otherwise void of any evidence to indicate that Travelers made any attempt to contact Earl Noble, Sr. until nearly six years after he offered to hold Travelers harmless should a bond be issued on Milburn Ducote’s behalf. We find, therefore, that no valid contract of indemnity existed between Travelers and Earl Noble, Sr. at the time of his death, and that consequently Travelers has no valid claim against his heirs. Since we find Travelers’ failure to give timely notice to Earl A. Noble, Sr. of acceptance of his offer to be dispositive of the issue of the liability of the Noble heirs, we deem it unnecessary to consider the additional arguments raised in appellants’ brief.

III. LIABILITY OF WILSON J. TAT-MAN

Appellant, Wilson J. Tatman, neither appeared nor filed a brief in this case prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rule, Courts of Appeal, we consider his appeal abandoned and dismiss same at his cost.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it imposes liability upon Donald Perkins, Mrs. Cecile Seitz Noble and Earl A. Noble, Jr. and accordingly, it is ordered, adjudged and decreed that there be judgment in favor of Donald Perkins, Mrs. Cecile Seitz Noble and Earl A. Noble, Jr. and against Travelers Indemnity Company, dismissing plaintiff’s suit against said defendants. All costs of this appeal are to be paid by Travelers Indemnity Company.

REVERSED AND RENDERED.

      . LSA-R.S. 3:565 in part provides:
      “Every market agency and dealer shall, on or before the date of commencement of operations, execute and thereafter maintain, or cause to be executed and maintained, a bond payable to the executive secretary of the Louisiana [State] Livestock Sanitary Board for the use and protection of livestock producers, shippers, or purchasers, to secure the performance of their obligations incurred as a market agency or dealer, and shall immediately file with the executive secretary of the Louisiana State Livestock Sanitary Board a fully executed duplicate of the bond. The surety on the bond shall be a surety company approved and authorized to do business in Louisiana. In the event that an applicant for a permit is unable to secure bond the Louisiana State Livestock Sanitary Board may accept a deposit with it of a cash amount equal to the amount of the bond required . . ”

      . S. Litvinoff, Louisiana Civil Law Treatise, Volume 6, Obligations Book I, § 161 (1969).


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Roy J. LEBLANC, Plaintiff-Appellant, v. Else P. LABORDE, Defendant-Appellee.
    No. 6844.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Don R. Wilson, John R. Contois, Marks-ville, for plaintiff-appellant.
    Ben C. Bennett, Jr., Marksville, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

Plaintiff, Roy J. Leblanc, brought this suit to establish the boundary between his property and that of the defendant, Else P. Laborde. The defendant answered, asserting that there was no need to fix the boundary between the two tracts of land as there was already an existing visible boundary up to which he had possessed and acquired by virtue of the acquisitive prescription of ten, twenty and thirty years.

The central question presented in this appeal is whether the trial judge erred when he held that the facts of this case established that defendant had acquired the property to the existing fence by virtue of thirty-year acquisitive prescription.

Defendant acquired the disputed tract of land from Walker Joe on June 11, 1948. This property is located in Avoyelles Parish, and adjacent to its southern and western borders lies the tract owned by the plaintiff. Mr. Leblanc alleges that the boundary between the two tracts extends to that point provided for in his title. Defendant claims that he possesses to a fence, extending beyond the line stated in the title.

Art. 852. Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.

The trial court held that the defendant and his ancestor in title, Walker Joe, had possessed the property to the existing boundary fences, at the same location, for over forty years prior to this suit. The trial judge ruled that the existing fence served as the boundary line between the two tracts of land. The plaintiff now appeals.

New LSA-C.C. Article 794 provides:
“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

This article became effective January 1, 1978, and applies to this action since suit was not filed herein until January 6, 1978. The new Article 794 replaces Article 852 of the Louisiana Civil Code of 1870, but does not change the law as stated within Article 852, nor does it affect the line of jurisprudence which developed in interpreting Article 852.

Under Article 852, and now under Article 794, where there is a visible boundary and where there has been actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds, then the party who possesses acquires the right to the land beyond their title. William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977); Brookshire v. Guidry, 355 So.2d 559 (La.App. 3 Cir. 1978).

The requirements of these articles indicate that one must maintain an enclosure, such as a fence, around the property and exercise open, physical possession as owner for a continuous and uninterrupted period of thirty years. Martin Timber Company v. Taylor, 187 So.2d 196 (La.App. 3 Cir. 1966). There must have been not only evidence of a corporeal possession of the property for the required period of time, but also a positive intent to possess as the owner shown by the possessor during that time. William T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3 Cir. 1977). Finally, the tacking of possession of all predecessors in title is permitted for acquisitive prescription beyond title to a visible boundary. Dubois v. Richard, 223 So.2d 198 (La.App. 3 Cir. 1969).

The record in this case reveals that prior to the execution of the 1948 sale from Joe to Mr. Laborde, Ivy A. Normand, the individual who prepared defendant’s purchase, examined the tract of property and measured as being included within its dimensions that area enclosed by the fence. Mr. Normand testified in court and stated that at the time of the sale there was clearly existing along the southern and western boundaries of the property, an old fence. He testified that to his knowledge the fence had been there for some time prior to the sale, and that this same fence had been continuously maintained and repaired by the defendant since this purchase.

Other testimony at the trial indicated that this fence had existed at least ten years prior to the sale of the property from Joe to Laborde. Walker Joe himself had possessed up to the fence. The defendant stated that he had never changed the location of the fence since his purchase of the property and others testified that to their knowledge the fence had always been situated at its current location. Also, it was shown that defendant had exercised physical possession over the property up to the enclosure in that he grazed cattle on the property, hunted, and maintained the property and the fence in good condition.

Clearly, under the facts of this case, defendant has fulfilled the requirements of Articles 794, 3499 and 3500. It is well settled that in a boundary action, where the boundary is located is a question of fact to be determined by the trier of fact, and such a determination should not be reversed on appeal in the absence of manifest error. Gelpi v. Shall, 355 So.2d 1014 (La.App. 4 Cir. 1978). In this case, the record amply supports the decision of the trial court. Since defendant was entitled to tack on the possession of his predecessor in title, this Court upholds the action taken by the trial court in ruling that the defendant acquired the property up to the existing fence by the thirty-year possession to a visible boundary.

We do not find, in the record, sufficient evidence to describe with particularity the location of the disputed boundary. There is no reliable evidence in the record on which an accurate description can be based because no surveyor has been appointed and no survey or proces verbal thereof has been made. This Court, therefore, can only affirm the factual findings of the trial court. Thus, the boundary has not been judicially “fixed” as the action in boundary requires under the circumstances. In absence of agreement between the parties, that must be done by a sworn surveyor of this State, who shall be bound to make a proces verbal of his work in the presence of two witnesses. La.Civil Code Articles 833-839. Thereafter, the trial judge will render a judgment, based on that survey giving a particular description by measurement relating the fence line as the true boundary to the ideal boundary and making reference to the plat of survey, all to be filed of record in the office of the Clerk and Recorder for the Parish of Avoyelles. See William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977).

A survey should be made despite the fact that the issue of possession of the property within the fence line for 30 years has been satisfactorily established in defendant, La-borde’s favor. Such a result is dictated by the Code when it declares that an action of boundary cannot be prescribed against. La. Civil Code Articles 824-825; La.Code of Civil Procedure Article 3691. And the survey is made a necessary part of an action in boundary. La.Civil Code Articles 833-839; La.Code of Civil Procedure Article 3692. It is a method of law prescribed to bring certainty to the resolution of the question and set the boundary at rest among neighbors. The survey serves moreover to preserve record evidence of the boundary by confirming the location of the fence line.

We further hold, in accordance with William T. Burton Industries, Inc. v. Wellman, supra, that Laborde should not be taxed with the costs of these proceedings or the survey to be made in connection therewith.

Accordingly, we remand the case to the trial court for the appointment of a survey- or and further proceedings in accordance with the above, with instructions that the costs of the survey shall be assessed against the plaintiff.

For these reasons assigned, the judgment of the trial court is affirmed in all respects, except that the case is remanded to the trial court to be proceeded with in accordance herewith.

All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED IN PART, AMENDED IN PART, AND REMANDED.

      . Art. 852. Acquisitive prescription beyond title

      . LSA-C.C. Article 3499:
      “The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

      . LSA-C.C. Article 3500:
      “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”


text:
    Arthur Ray GUIDRY et ux., Plaintiffs-Appellees, v. Mitchell K. BARRAS et ux., Defendants and Third Party Plaintiffs-Appellants, Suburban Real Estate, Inc., Third Party Defendant-Appellee.
    No. 6848.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      P. Michael Maneille, Lake Charles, for defendants and third party plaintiffs-appellants.
    Hunt, Godwin, Painter & Roddy, John Stewart Hood, Lake Charles, Scofield, Bergstedt & Gerard, Benjamin W. Mount, Lake Charles, for third party defendant-ap-pellee.
    Ronald J. Bertrand, Lake Charles, for plaintiffs-appellees.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

Plaintiffs, Mr. and Mrs. Arthur Guidry, purchased a residential home from the defendants, Mr. and Mrs. Mitchell Barras. Shortly after moving in, the Guidrys experienced substantial flooding after each heavy rain. They instituted this redhibitory action against the vendors for rescission of the sale.

The defendants filed an answer in which they denied having knowledge of any unusual flooding problems (Tr., pg. 9). They further instituted a third party demand against the realtor who negotiated the sale of the property, Suburban Real Estate, Inc., alleging that they had full knowledge concerning all aspects of the property and were liable “as a result of any failure to state information about the property.” (Tr., pg. 11).

The only vice in the property complained of by the Guidrys is that of flooding. Although inconsistent, the import of these allegations is that the Barrases had no knowledge of unusual flooding but that they had told their realtors of such problems and Suburban should be held liable for concealing or withholding this vital information from the purchasers. The only other possible construction would place a duty upon the realtors to have independently sought out information in regards to flooding.

Suburban filed a peremptory exception of no cause of action which the trial court sustained on May 26, 1978. Later, in a separate judgment on July 7, 1978, the court denied the Barras’ request to amend their third party petition. Thereafter, a motion and order for an appeal from the judgment of May 26, 1978 was filed with and signed by the trial court.

From this factual situation, the following issues are presented:

(1) What issues are actually before this Court?

Appellees insist that because no appeal was taken from the judgment denying the third party plaintiffs’ requested opportunity to amend their petition, signed on July 7, 1978, that question is not before the court. They contend that if the Barrases had intended to raise the question of their right to amend, they should have appealed from the judgment of July 7, as well as the judgment signed on May 26. No cases or statutes are cited in support of this proposition.

Appellees’ contentions are invalid. Code of Civil Procedure Article 934 mandates that “the judgment sustaining the exception [the May 26th judgment appealed from] shall order such an amendment” when the grounds of the objection can be removed. Thus, if an amendment could have removed the grounds for the exception, then that order should have been contained in the “judgment sustaining the exception,” i. e., the judgment actually appealed from and signed on May 26, 1978. Although the trial courts can allow amendments at a later date, absence of the denial from the initial judgment sustaining the exception should not prejudice the appellants’ right to have this question heard by the appellate courts.

An appellate court can render any judgment which is just and proper on the record before it. LSA-C.C.P. Article 2164. Since the whole record is before us, and because the major point raised by appellants in their brief is that concerning the requested amendment, this Court may make a determination on that question. To hold otherwise would place the enforcement of a rigid technical rule, without sound support, above the more favored modern theory of finding and doing substantial justice for the parties.

(2) Does the judicial confession estop a curative amendment?

A party is not inexorably bound by testimony given on the witness stand or by factual allegations contained in pleadings from a prior suit. Jackson v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (1967); and Sanderson v. Frost, 198 La. 295, 3 So.2d 626 (1941). Other cases have further indicated that a party litigant is not even bound by factual allegations made in the same suit unless his adversary has relied upon those allegations to his detriment. DeMaupassant v. Clayton, 214 La. 812, 38 So.2d 791 (1949); J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972); Mouledous v. Poirier, 221 So.2d 291 (La. App. 4 Cir. 1969).

These latter eases seem to be in direct conflict with the language of Article 2291 of our Civil Code:

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it. . It can not be revoked, unless it be proved to have been made through an error [of] fact. .

Still other cases indicate that the mandate of Article 2291 has been followed, holding that on factual matters, a party is bound by his pleadings and stipulations therein. Jackson v. Gulf Ins. Co., supra; State v. Ward, 314 So.2d 383 (La.App. 3 Cir. 1975). These cases do not state that revocation is prohibited only if an adversary relied upon the declarations to their detriment.

It has been suggested that these factual allegations should be binding at least until an amendment is made. 30 La.L.Rev. 326; Pugh on Evidence, p. 437. That writer further suggested that if the factual allegations are wrong or have been made through error, the remedy is apparently to be found in the Code of Civil Procedure’s very liberal rules relative to the amendment of pleadings. LSA-C.C.P. Arts. 1151-1156.

Appellee has insisted that paragraph 6 of the answer and third party petition (Tr., pg. 9) filed by the Barrases must constitute a judicial confession and cannot be revoked or amended. For this proposition, he primarily relies upon C.C. Article 2291.

As indicated above, the jurisprudence is somewhat confusing. If the article was based purely on estoppel, there would be no doubt that a detrimental reliance would be required. However, it appears as though Article 2291 is based on more than estoppel. The history of the article (see Jackson v. Gulf Jns. Co., supra) indicates that the original purpose of this article was to provide a method for getting evidence from a party litigant who was not allowed to testify. If the article is found to have a basis outside estoppel, a detrimental reliance might not have to be shown for a proper application of the article.

It seems to us as though a plaintiff is allowed to make some inconsistent allegations in his pleadings. LSA-C.C.P. Article 892. It is not the parties’ allegations that must be totally consistent but only the ruling of the trial judge that must be logical. However, C.C.P. Article 863 imposes a duty of good faith upon the attorney preparing the document.

Further, C.C.P. Articles 934 and 1151 seem to conflict with Civil Code Article 2291. The Code of Civil Procedure articles are the most recent and they should prevail if found applicable and in conflict with Civil Code Article 2291.

Article 934 of our Code of Civil Procedure specifically states that an amendment shall be allowed if the grounds of the exception may be cured. We note that an amendment could possibly cure the defective pleadings. Under Civil Code Article 2522, “the buyer cannot institute the redhibitory action, on account of latent defects which the seller has declared to him . . . .” It is possible that the Barrases had told Suburban of a flooding problem but that Suburban purposely concealed those facts from the purchasers. In this instance, Suburban would be liable to the Barrases. That is, absent their realtor’s concealment, the Barrases would have had a defense under C.C. Article 2522. The primary concern would therefore be what the Barrases had actually told Suburban and what inquiries the purchasers (the Guidrys) had actually made about flooding. Even though the appellants admit that they do not know what correspondence took place between Suburban and the Guidrys, they might possibly bring that evidence out at trial.

We conclude that a judicial confession under C.C. Article 2291 should not estop a curative amendment under C.C.P. Article 934, absent a showing that the adversary was misled or deceived. Our Code of Civil Procedure was specifically enacted to liberally cover procedural questions relating to the amending of pleadings and should govern in this instance. We feel that Article 2291 should apply and these allegations should constitute full proof against the defendant, only if our Code of Civil Procedure does not allow a curative amendment. For reasons shown below, we hold that a curative amendment is proper, and consequently, that Civil Code Article 2291 should not apply until all allowable amendments have been made and the factual questions have been presented at trial.

(3) Realtor’s duty and liability:

As stated by the Second Circuit in the recent case of Davis v. Davis, 353 So.2d 1060 (La.App. 2 Cir. 1977), writ refused, 1978:

“Absent a vendor-vendee relationship, there can be no redhibitory action, [cites omitted] Plaintiffs’ remedy against the realtors is in damages for fraud under La.C.C. Art. 1847(9), or for negligent misrepresentation under La.C.C. Art. 2315. [cites omitted]”

In Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1 Cir. 1974), the First Circuit stated that:

“The real estate broker renders a service by advertising and showing properties which are for sale, and by giving advice or recommendations to his client. We do not believe that the relationship thereby created brings the real estate broker within the purview of the mandate articles of the Civil Code and that his duties are limited to those which can be analogically drawn from L.R.S. 37:1454 and from the customs and practices of real estate brokers in general.”

We note, however, that the second paragraph of L.R.S. 37:1447 may be utilized as a basis for recovery. That statute provides that:

“Anyone who is injured or damaged by the broker or his salesmen by any wrongful act done in furtherance of such business or by any fraud or misrepresentation by the salesmen or broker may sue for the recovery of the damages before any court of competent jurisdiction.” (emphasis added)

It is clear from a reading of the above provisions that Suburban did have a duty to relay accurate information about the property, that this duty extended to both the vendor and vendee, and that the realtor will be held liable if such a duty is breached. As stated above, the realtor’s concealment of a flooding defect which had been disclosed to it by the vendors would have “injured or damaged” (R.S. 37:1447) the seller who, otherwise, would have had a defense under C.C. Art. 2522.

A curative amendment could have possibly been made (alleging the realtor’s failure to properly disclose a flooding vice) and this later proven at trial. A curative amendment is mandated when the grounds for an exception “may” thereby be removed. C.C.P. Art. 934. The record before us does not exclude the possibility of a curative amendment.

(4)Propriety of third party demand— eonnexity with the principal demand.

In pertinent part, Article 1111 of our Code of Civil Procedure provides:

“The defendant . . . may bring in any person . . . who is or may be liable to him for all or part of the principal demand.” (emphasis added)

Suburban contends that the third party action against it is improper because they could not be liable in redhibition (the principal demand).

We conclude that the third party action was properly allowed. The principal demand is for rescission of the sale and a return of the purchase price. Suburban “may be liable” for part of this price if they concealed the flooding vice in hopes of making the sale. The fact that the action against Suburban would not be in “redhibition” should not be determinative. Ballon v. Smith, 299 So.2d 501 (La.App. 4 Cir. 1974). In other jurisdictions, and possibly in Louisiana as well, it is well settled that the principal and third party claims need not be asserted on the basis of the same legal theory of responsibility. 49 Tul.L. Rev. 1139. Our Code of Civil Procedure only requires possible liability “for” all or part of the main demand, not “in” the main demand. Nevertheless, the main demand is for a return of the purchase price in money. Suburban may be monetarily liable to its client (the Barrases) for a partial return of this price if damage was caused by their misrepresentations.

For the foregoing reasons, we reverse the decision of the trial court and remand this case to allow third party plaintiffs, Mr. and Mrs. Barras, fifteen days from receipt of this Court’s decision to amend their petition, if they can, to sufficiently state a cause of action. The trial court has the discretion to grant an extension of the said period, for good cause shown. In default of the filing of amended pleadings within the time allotted, or as extended by the trial court, the latter shall enter a judgment dismissing the third party demand of Mr. and Mrs. Barras.

Costs of this appeal are assessed against Suburban Real Estate, Inc.

Costs in the district court must await final determination of this matter.

REVERSED AND REMANDED.

      . Art. 892. Alternative causes of action
      Except as otherwise provided in Article 3657, a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive. In such cases all allegations shall be made subject to the obligations set forth in Article 863.


author: CULPEPPER, Judge.

text:
    Warren J. MOITY, Sr., Plaintiff-Appellant, v. Mercer B. BUSCH, Defendant-Appellee.
    No. 6849.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Warren J. Moity, Sr., in pro per.
    Voorhies & Labbe, John Chappuis, Jr., Lafayette for defendant-appellee.

      Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

Warren J. Moity, Sr., a layman, appearing in proper person, brought this action against Mercer B. Busch for damages alleged to have been caused by defamatory remarks made while Mr. Busch was testifying in a prior suit as an expert for Mr. Moity’s opponent, United Geophysical Corporation. In the alternative, plaintiff alleged “malicious prosecution.” On a motion for summary judgment, the trial court dismissed plaintiff’s suit. From that ruling, Mr. Moity has brought this appeal, praying that we reverse and remand the ease for trial on the merits. The defendant, Mercer B. Busch, has answered the appeal, seeking damages for frivolous appeal.

There is no dispute as to the material facts. Only the legal consequences flowing therefrom are at issue. The pertinent allegations of plaintiff’s petition are as follows:

“3.
“That on July 2, 1975, as an expert witness, MERCER B. BUSH, hereinafter referred to as ‘BUSH’, gave testimony, showed still pictures, which was defamatory, untrue results, libelous and slanderous, malicious, in a legal proceedings entitled WARREN J. MOITY VERSUS UNITED GEOPHYSICAL CORPORATION, CIVIL ACTION NUMBER 35465 of the 16th Judicial Court. That the said ‘BUSH’ was a willing witness who either knew or should have known that such testimony by him was and would be damaging to plaintiff WARREN J. MOITY, SR., hereinafter referred to as ‘MOITY’.
“4.
“That the testimony of ‘BUSH’ accused ‘MOITY’ of presenting a FAKE CLAIM, that by means of still pictures the said ‘BUSH’ attempted to show the Court that because of PAINT PENETRATION the damage could not have occurred as ‘MOI-TY’ stated it occurred.
“5.
“That the said ‘BUSH’ gave testimony showing cracks from settlement and that said testimony was erroneous and inaccurate. That the said ‘BUSH’ is not a STRUCTURAL ENGINEER AND IS NOT PROPERLY QUALIFIED to give such testimony and that the opinion of the said ‘BUSH’ was inaccurate, improper and damaging to ‘MOITY’.
“6.
“That the said ‘BUSH’ does not possess the proper educational training to properly give expert testimony in the field of structures and paint. That the said ‘BUSH’ either knew or should have known that because of his lack of educational training as an expert in the field of STRUCTURES AND PAINT, his testimony was dangerous and damaging to ‘MOITY’ as used in the Lawsuit on July 2, 1975.
“7.
“That by Judgment rendered by the Honorable Edward A. De La Houssaye, III, and the reasons for Judgment signed on the 23rd day of February, 1978, the Court rejected that part of defendant, ‘BUSH’ testimony accusing ‘MOITY’ of seeking damage for cracks in the brick wall falsely, that defendant ‘BUSH’ accused ‘MOI-TY’ of trying to seek a claim from a blast but rather was due to faulty workmanship. The Court rejected that claim.
“8.
“That the Court found that the cause of ‘MOITY’S’ damage was due to seismic exploration and not as a result of faulty workmanship as testified to by the defendant, ‘BUSH’.
“9.
“That the testimony of the defendant, ‘BUSH’ was madé with malice, and was humiliating, embarrassing and caused much mental pain and anguish and mortification.
“10.
“That the litigation entitled WARREN J. MOITY VERSUS NO. 35465 UNITED GEOPHYSICAL CORP., was decided in favor of the said ‘MOITY’.
“11.
“That the testimony of ‘BUSH’ aided in defeating in part ‘MOITY’S’ CLAIM for damages.”

The entire testimony by Busch in the previous suit was filed in support of defendant’s motion for summary judgment. Propriety of the summary judgment hinges upon whether or not our law grants Mr. Busch absolute immunity for all statements made by him while testifying as an expert witness. He had many years experience in brick manufacture, construction of brick walls and estimating brick jobs. Busch was clearly qualified as an expert in these fields and was accepted as such by the district judge. While testifying in such capacity, Mr. Busch stated it was his opinion that the cracks in the brick walls of the Moity home were caused by settling of the foundation and not the seismographic explorations which “United Geophysics had recently conducted in the neighboring area, as alleged by plaintiff. Part of the basis for his opinion was the finding of paint in various cracks in the brick, to a depth which could only have been achieved if the cracks were in existence when the house was painted, which painting occurred prior to the seismographic operations.

It is firmly established in this state that testimony given at a judicial proceeding by a non-litigant witness carries with it absolute immunity from a defamation suit stemming from the utterance of such testimony. Terry v. Fellows, 21 La.Ann. 375 (La.1869); Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). This protection is granted so that all witnesses may speak freely without the fear of a reprisal suit for slander. As an accepted qualified expert witness, Mr. Busch was free to give his opinion whether others might disagree with his conclusions or not.

In an attempt to provide a basis for liability, appellant cites this court to the case of Bienvenu v. Angelle, supra. Although our Supreme Court there recognized that communications made during investigatory work in the field are not accorded an absolute privilege, they did recognize that “communications made in judicial or quasi judicial proceedings carry an absolute privilege.” All of the allegedly defamatory statements made by Mr. Busch were given in his capacity as a witness, under oath, at a formal judicial hearing and in the particular field of his expertise. There are no allegations by plaintiff as to any defamatory statements by Busch during his investigation and preparation for trial. All of defendant’s testimony was relevant and his answers entirely responsive to the propounded questions of plaintiff and defendant, both of whom were represented by counsel. A proper reading of Bienvenu only strengthens the lower court’s dismissal of this defamatory action, based on testimony by Busch in the prior suit.

There is no basis in the record for plaintiff’s alternative demand for damages for malicious prosecution. Busch is not alleged or shown to have ever prosecuted Moity for anything. Busch was not even a party in the prior suit. He was only a witness. On appeal, plaintiff makes no argument regarding malicious prosecution.

We next consider defendant’s request for damages for frivolous appeal. In the recent case of Coleman Oldsmobile, Inc. v. Arthur Cobb, 366 So.2d 944 (La.App. 1st Cir. 1978), the court quoted from Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977), the following rule:

“ * * * Article 2164 of the Code of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973), Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), and Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976).” (348 So.2d at 741)

In Coleman, the plaintiff sued to recover funds seized by defendant Cobb under a writ of fi. fa. and garnishment pursuant to a default judgment in Cobb’s favor in another suit, which judgment was subsequently reversed by the Court of Appeal. The district judge granted Coleman’s motion for summary judgment ordering Cobb to return the $15,916 which was seized. Defendant Cobb appealed, arguing that the prior suit for redhibition was still pending and should he be successful in that suit, then the present suit to recover the funds would be moot. The Court of Appeal pointed out that defendant Cobb was in possession of the funds only by virtue of a writ of fifa issued under the judgment which had already been declared invalid. The appellate court concluded defendant Cobb had no defense and that he had taken positions through the various pleadings which showed lack of serious advocacy and were only for the purpose of delay. Damages for frivolous appeal in the sum of $750 were awarded on the basis that this was a reasonable amount for attorney’s fees for the appellee in connection with services on appeal.

In the present case, as in Coleman, the appellant has taken various meritless positions in both the trial and appellate courts which show clearly that the appellant could not have seriously believed in the position which he advocates on appeal. After having lost his case in the trial court for the reason that the law is clear that a non-litigant witness has absolute immunity from a subsequent defamation suit stemming from his testimony, the plaintiff-appellant abandoned this position on appeal. In his appellate brief, Moity admits the trial judge was correct. We quote from appellant’s brief.

“There is no question that the cases quoted by counsel for defendant is (sic) correct. They refer to a witness testifying in a ease for which they were subpoenaed to testify. There is an absolute privilege.”

On appeal, plaintiff’s only argument is that under Bienvenu v. Angelle, supra, statements made during the defendant’s investigation and preparation for trial are not privileged. However, there are no allegations in plaintiff’s petition of any defamatory statements made by Busch during his investigation or preparation for trial. Therefore, under the record before us, this is a frivolous argument, absolutely unsupported by any allegations or evidence in the record.

Viewing the record as a whole, we conclude that this appeal was taken solely for the purpose of causing the defendant Busch embarrassment, humiliation, inconvenience and expense. We will assess damages in the sum of $750, which should be adequate to cover the cost of the services of defendant’s attorney on appeal. See Coleman Oldsmobile, Inc. v. Cobb, supra, and Samford v. Samford, 297 So.2d 465 (La.App. 2d Cir. 1974).

For the reasons assigned, the judgment appealed is affirmed. It is further ordered, adjudged and decreed that there be judgment herein in favor of the defendant-ap-pellee, Mercer B. Busch, and against the plaintiff-appellant, Warren J. Moity, Sr., for the sum of $750, together with legal interest thereon from the date of this judgment until paid as damages for prosecuting this frivolous appeal. All costs in the trial and appellate courts are assessed against the plaintiff-appellant.

AFFIRMED, AS AMENDED.


author: DOUCET, Judge.

text:
    Donald James deBLANC, (Plaintiff-Appellee), v. Joy L. MITCHELL, (Defendant-Appellant).
    No. 6851.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Lewis & Lewis; James T. Guglielmo, Opelousas, for defendant-appellant.
    Sandoz, Sandoz & Schiff; Lawrence B. Sandoz, Jr., Opelousas, for plaintiff-appel-lee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

This is a suit to recover an overpayment of alimony made by plaintiff to defendant, his former wife. Plaintiff began paying alimony at a rate of $650.00 per month pursuant to a court order dated November 24, 1974. The parties were divorced on January 20, 1976, and the payments continued at that rate. On June 29, 1976, by a subsequent court order, the amount of the payments ordered was reduced to $525.00 per month.

Plaintiff erroneously continued making the payments at the higher rate until October of 1977, resulting in an overpayment of $1,320.00. The trial court awarded this amount to him. Defendant appeals.

There are three issues raised in this appeal.

(1) Did the Opelousas City Court have subject matter jurisdiction in view of the restrictions contained in Louisiana Code of Civil Procedure article 4836?

(2) Did plaintiff carry his burden of proving that the overpayment had been made in error?

(3) Did the trial court err in failing to find that a compromise agreement entered into by the parties on September 22, 1977 extinguished this claim?

The following is the portion of the Louisiana Code of Civil Procedure article 4836 which is relevant to this case:

“A justice of the peace, or city court other than one in New Orleans, has no jurisdiction of any of the following cases or proceedings:
. (2) A case in which it is sought to obtain judgment of annulment of marriage, separation from bed and board, divorce, separation of property, or for alimony . . .

We agree with the trial court that this provision has no bearing on an action for the return of an overpayment of money which happened to be made pursuant to a court order to pay alimony. The jurisprudential limitations set forth clearly eliminate the possibility of a city court, other than one in New Orleans, assuming the heavy burden of deciding issues of family law. However, as found by the trial court, no domestic issues are raised by this dispute. There is no need to consider the numerous factors involved in an award of alimony. The issue raised was whether or not a specific amount of money, which amount was within the jurisdictional limitations imposed on the trial court, had been erroneously paid. Therefore, the City Court of Opelousas had jurisdiction to decide this case.

Defendant submits that plaintiff did not carry his burden of proving that the overpayment was made in error. The record contains ample support for the trial court’s finding that the overpayment was the result of an error rather than an intent to bestow a gratuity. There being no manifest error, the trial court’s determination must stand. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Defendant also contends that the compromise agreement entered into by the parties on September 22, 1977 was intended to embrace the claim for overpayment of alimony. By its express terms, the agreement deals only with the community of property formerly existing between the spouses. We find no basis for inferring a broader intent. We agree with the finding of the trial court that the agreement has no bearing on this case.

For these reasons, the judgment of the trial court is affirmed. The costs of this proceeding are assessed against defendant-appellant.

AFFIRMED.


text:
    Clarence GIROUARD, Jr., Respondent-in-Rule and Appellee, v. Elizabeth Ann HALPIN, Plaintiff-in-Rule and Appellant.
    No. 6856.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Louis M. Corne, Lafayette, for defendant-appellant.
    John Rixie Mouton, Lafayette, Thompson & Perrin, Donald D. Landry, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

The plaintiff-in-rule, Elizabeth Ann Hal-pin, filed this summary proceeding alleging that she is the mother of the minor child, Brett Louis Halpin, who is presently in the custody of the defendant, Clarence Gir-ouard, Jr., under a prior district court judgment. She prayed that she be awarded custody. After a hearing on the rule to show cause, the district judge held that the district court did have jurisdiction in the previous suit by Girouard, a non-parent, against Ms. Halpin, a parent. Furthermore, the judge held on the merits that the mother is unfit and that the best interest of the child requires that it remain in the custody of Mr. Girouard. From a judgment dismissing her rule for custody, the plaintiff-in-rule appeals.

The issues presented are: (1) Did the district court have jurisdiction of the prior suit by Girouard, a non-parent, against Ms. Halpin, a parent, for custody of the minor child? (2) Was summary process appropriate in that suit? (3) Is Ms. Halpin estopped from attacking the validity of the prior custody judgment because of her acquiescence, LSA-C.C.P. Article 2003? (4) On the merits, is Ms. Halpin unfit for custody and does the best interest of the child require that it remain in the custody of Girouard?

The general facts are that on October 20, 1975, while unmarried but living with Donald Chaisson, a married man, Ms. Halpin gave birth to the minor child, Brett Louis Halpin. On October 20, 1977, she had another illegitimate child, a daughter named Tanya. Ms. Halpin testified that Donald Chaisson, whom she married on February 28, 1978, is the father of the second child.

In early January of 1978, Ms. Halpin consented to give custody of Brett to her stepsister and her husband, Mr. and Mrs. Gir-ouard, Jr. Ms. Halpin testified her reason was that she was working and couldn’t pay babysitters. Witnesses for the Girouards testified that because of complaints to the Welfare Department about child abuse, Brett was about to be removed from Mr. Halpin’s custody, so she consented to the Girouards taking the child. In any event, on January 17, 1978 the Girouards filed a summary proceeding in the district court alleging that Brett was in their home, having been placed there on January 13, 1976 by Ms. Halpin for the best interest of the child, and that they desired judgment awarding custody to them. Ms. Halpin was named defendant in the rule, and she was personally served. At the hearing on January 30, 1978, Ms. Halpin made no appearance. Judgment by default was entered on that date awarding the permanent care, custody and control of the child to Mr. Girouard, subject to reasonable visitation rights by Ms. Halpin.

On May 17, 1978, Ms. Halpin filed the present summary proceedings alleging that she gave the child to the Girouards only because of financial difficulties, that she is now married to Donald Chaisson who is employed, that they are able to care for the child, and that the best interest of the child will be served by changing custody to her.

JURISDICTION OF THE DISTRICT COURT

On appeal, Ms. Halpin contends the January 30, 1978 judgment of the district court awarding custody to Mr. Girouard is null and void for lack of jurisdiction of the subject matter. She argues that the district court has jurisdiction of a child custody suit by a non-parent against a parent only by writ of habeas corpus, and since this was neither a habeas corpus action1 nor a proceeding in juvenile court, the prior judgment is null.

This precise question of jurisdiction appears to be res nova in the appellate courts of Louisiana. A discussion of the problem begins with the constitutional and statutory provisions. Article 5, Section 16 of the Louisiana Constitution of 1974 provides in part: “Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters.” Article 5, Section 18 provides: “Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.” These are essentially the same provisions as were contained in Article VII, Sections 35 and 52 of the Louisiana Constitution of 1921 as to jurisdiction of district and juvenile courts.

LSA-C.C.P. Article 10(5) provides:
“Art. 10. Jurisdiction over status
“A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
“(5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;”

LSA-R.S. 13:1570 provides the jurisdiction of juvenile courts as follows:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish;
“(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care necessary for his well-being; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody or support; . . . (This portion of the statute has been in effect since added by Act 73 of 1973.)

In Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972), a grandfather brought an action in district court alleging his grandchildren were neglected by their mother following the divorce of the children’s parents. He sought custody. By default judgment the grandfather was awarded custody. Later, the mother filed a writ of habeas corpus action in the district court seeking custody. The majority opinion in the Supreme Court held that although the grandparent’s prior suit was styled a custody proceeding, it was actually a suit by a third party to have a child declared “neglected”, and that such a suit could only be brought in the juvenile court under Article 7, Section 52 of the Louisiana Constitution of 1921. The court annulled the prior judgment awarding custody to the grandparent and remanded the case to the trial court for further proceedings in the mother’s application for writ of habeas corpus.

In footnote 5, at page 222 of 269 So.2d, the majority noted that its holding was limited to jurisdiction of neglect cases, and that it was not deciding the propriety of an action by a third party or by a parent in district court for custody. Footnote 5 states:

“5. In this opinion we are determining only jurisdiction. The question of whether a third party has a right or cause of action to institute a suit which is in substance as well as style a civil proceeding for custody of minor children is not before the court. Neither do we reach the question of a third party’s rights in civil custody proceedings pending between parents.”

Thus, Griffith v. Roy does not prohibit the suit by Mr. Girouard against Ms. Halpin in district court for custody.

In Griffith v. Roy, Justice Dixon wrote a strong dissent in which he took the position that the grandparent’s original suit was a civil suit for child custody of which the district court had jurisdiction under its unlimited jurisdiction in civil matters provided by Article 7, Section 35 of the Louisiana Constitution of 1921. Justice Dixon was of the view that the grandparent’s suit was not to have the child declared “neglected”, because the child was in the custody of the grandparent and was being well cared for, citing In re Sherrill, 206 La. 457, 19 So.2d 203 (1944) for the rule that a juvenile court has jurisdiction of a “neglected” child only where the child is in a present state of neglect. Justice Dixon’s view was also that the juvenile court has exclusive jurisdiction only where the state is a party in a suit involving a “neglect complaint” in juvenile court.

In the subsequent Court of Appeal decision in Stuckey v. Stuckey, 276 So.2d 408 (2d Cir. 1973), a suit for separation from bed and board, the court held both parents unfit and awarded custody pendente lite to the grandparents. In answer to the contention by the mother on appeal that under Griffith v. Roy, supra, the district court had no jurisdiction to award custody to grandparents in preference to natural parents, the Court of Appeal pointed out that Griffith v. Roy does not hold that district courts lack jurisdiction to award custody to a non-parent in preference to a parent, the Supreme Court decision in Griffith v. Joy, being limited to a holding that a suit by a third party to have a child declared to be “neglected” must be filed in the juvenile court. The Court of Appeal in Stuckey pointed in particular to Footnote 5 in the opinion in Griffith, quoted above.

In Wood v. Beard, 290 So.2d 675 (La.1974), the mother filed in district court a petition for writ of habeas corpus to recover the custody of her child from the grandparents. The district court awarded custody to the grandparents based on the best interest of the child. The Court of Appeal affirmed, 280 So.2d 567 (3rd Cir. 1973), holding Griffith v. Roy not controlling. In the Supreme Court, the mother argued that the district court was without jurisdiction to inquire into her fitness, citing Griffith v. Roy, supra. The Supreme Court held that in a habeas corpus action by a parent against a non-parent, the district court does have jurisdiction to consider the fitness of the parent and to award custody on the basis of the best interest of the child. However, the Supreme Court held on the merits that the mother was not shown to be unfit and that the best interest of the child required that custody be awarded to the mother. In discussing the question of jurisdiction the court stated:

“Plaintiff argues that only the juvenile courts have jurisdiction to interfere with parental authority. This is too narrow an interpretation of Griffith v. Roy, supra. We have previously held that the juvenile courts do not have jurisdiction over a dispute between private litigants for custody of a child not within the purview of R.S. 13:1570 et seq. In re Sherrill, 206 La. 457, 19 So.2d 203; 19 Tul.L.Rev. 464. Plaintiff’s ultimate argument is that the result of Griffith v. Roy, supra, is that no court may inquire into the fitness of a parent seeking custody while the marriage is in existence and there is no separation or divorce action pending. This argument ignores the universally recognized proposition that the state and its courts are always concerned with the welfare of the child.”

The only substantial difference between Wood v. Beard and the suit by Mr. Girouard against Ms. Halpin is that in Wood v. Beard the litigation was initiated by a petition for habeas corpus filed by the mother, whereas Mr. Girouard filed a civil suit by summary proceedings. As we construe the rationale of Wood v. Beard, it is not essential that the custody issue be brought before the district court by a writ of habeas corpus. The rationale of Wood v. Beard appears to be that the juvenile court does not have exclusive jurisdiction in a custody dispute between a parent and a non-parent where the child is not in a present state of neglect, requiring that the state protect the welfare of the child. In a situation where, as here, the child was not in a state of neglect but was being well cared for by Mr. Girouard the juvenile court does not have exclusive jurisdiction. We are impressed by the reasoning to this effect contained in the dissent by Justice Dixon in Griffith v. Roy. Justice Dixon expresses this same rationale as the author of the Supreme Court opinion in Wood v. Beard. Justice Barham, the author of Griffith v. Roy, dissented in Wood v. Beard, urging that under LSA-R.S. 13:1570 the juvenile court has exclusive jurisdiction in a custody dispute between a parent and a non-parent. However, no other justice joined in Barham’s dissent.

We conclude the district court did have jurisdiction of the previous suit by Mr. Gir-ouard against Ms. Halpin for custody.

USE OF SUMMARY PROCEEDING

On appeal, Ms. Halpin makes an additional argument that it was improper for Mr. Girouard to use summary process in his suit. This argument has no merit. LSA-C. C.P. Article 2592 expressly allows the use of summary proceedings in: “(8) The original granting of, subsequent change in, or termination of, child custody, . . .

It is noteworthy that Ms. Halpin herself had used summary proceedings in her present suit to regain custody.

ACQUIESCENCE BY MS. HALPIN IN PRIOR JUDGMENT

Mr. Girouard argues under LSA-C.C.P. Article 2003 that Ms. Halpin cannot attack the validity of the prior judgment because she was present in the parish at the time of its execution, did not attempt to enjoin its enforcement, and actually acquiesced in the judgment by giving custody to Mr. Gir-ouard and allowing him to keep custody until she filed the present rule. Having decided that the prior judgment is valid, we do not reach the question of whether Ms. Halpin is estopped to attack it or to change it.

UNFITNESS OF THE MOTHER AND BEST INTEREST OF THE CHILD

At the hearing on Ms. Halpin’s rule for custody, the trial judge heard much testimony by friends and relatives as to the unfitness of not only Ms. Halpin but of her present husband, Donald Chaisson. There is no question that the Girouards are giving the child proper care. In detailed written reasons the trial judge finds:

“After hearing the testimony of numerous witnesses in this matter, many of whom are related to the relator, it is the opinion of this court that the home provided by the relator and her husband, Donald Chiasson, and particularly the conduct of relator’s husband toward the minor, Brett, is extremely detrimental to the welfare and best interest of Brett Halpin. Despite the fact that thjs court recognizes a superior right in the parent over a third party in custody matters, it will not sacrifice the child’s physical well-being in order to effect that right.”
******
“At the custody hearing, an abundance of testimony was elicited to the effect that Brett Halpin is subject to physical abuse' by either Donald Chiasson or the relator, Elizabeth Halpin, or both. Pat Halpin, relator’s brother, testified that he, himself, made complaints to the child abuse center regarding Brett. This came in response to marks he saw on the child and bruises on the child’s face. Mr. Hal-pin stated that the relator told him it was Donald Chiasson who had beat the child but that on another occasion, the relator admitted beating her child. He further testified that at Christmas last year, the mother admitted to beating Brett with a plastic baseball bat. Mr. and Mrs. Mike Halpin kept the child for about three weeks during the summer of 1977, having received the baby from the child’s grandmother.
“Deloras Michaud, relator’s first cousin, testified to bruises on the child’s legs and arms and that the relator at one time admitted to administering the beatings and later blamed the beatings on Donald Chiasson. This witness further stated that Ms. Halpin told her she had locked the child in a closet. Romano Michaud testified that relator told her it was Mr. Chiasson who put the child in the closet for crying.
“Mrs. Judy Fellows, relator’s step-sister, testified that Elizabeth Halpin told her that both she and her husband had bruised the child. Mrs. Donald Halpin, Mrs. Jo Ann Michaud and Mrs. Jules Le-Blanc, relator’s grandmother, testified similarly that they had seen the marks and bruises on Brett and that relator admitted that she or her husband had inflicted them.
“Tina LeBlane testified that she and Ms. Halpin had a conversation at the witness’s place of employment and that relator stated she beat the child because she ‘loved Donald more.’ ”

In child custody cases, the trial judge has great discretion. His decision should not be disturbed on review unless there is a clear showing of abuse of discretion. Kerr v. Kerr, 339 So.2d 913 (1st Cir. 1977), and the authorities cited therein.

We conclude the findings by the trial judge that Ms. Halpin and her husband, Donald Chaisson, are unfit for the custody of the child, and that the best interest of the child requires that its custody remain with Mr. Girouard, are clearly supported by the evidence.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-in-rule, Ms. Halpin.

AFFIRMED.


text:
    Roscoe SLAY, Plaintiff-Appellant, v. Doyle SMITH et al., Defendants-Appellees.
    No. 6857.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellant.
    Rankin & Yeldell, Stephen J. Katz, Bas-trop, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks to be recognized as owner of a one-third (Vard) interest in certain sand and gravel leases and a like interest in the proceeds from all sales of sand and gravel mined and removed from the leased premises. In the alternative, plaintiff seeks damages for breach of an alleged contract entered into by him and the defendants. Plaintiff’s suit was dismissed on an exception of no cause of action and he has appealed.

The following is our understanding of the facts as alleged by plaintiff in his petition and amended petition which must be accepted as true for the purpose of trial of the exception of no cause of action.

As the result of an oral agreement entered into on or about July 1, 1977 plaintiff and the defendant, Doyle Smith, formed a partnership for the operation and mining of certain sand and gravel leases owned by Smith as Lessee. Pursuant to the terms of this verbal arrangement plaintiff was to furnish his expertise in the mining and marketing of sand and gravel, supervise the entire operation, and furnish certain items of his own equipment in consideration of which he was to acquire a one-half interest in such leases and the profits derived therefrom. Plaintiff complied with his obligations under the agreement, however, several months after the initial agreement, as the result of a second verbal agreement, defendant, Lamar Smith, became an equal partner and plaintiff’s interest was reduced to a Vsrd interest in the leases and profits therefrom. On October 7, 1977 plaintiff was informed that the verbal arrangement was terminated and he should vacate the premises. During the period from July 1, 1977 to October 7, 1977 plaintiff devoted much of his time to mining the leases and marketing the minerals derived therefrom and personally paid operating expenses exceeding $10,000.00. In addition he used and employed certain of his own machinery and equipment in such mining operations the use value of which exceeded $3,000.00. Defendants have continued to operate the various gravel leases without plaintiff’s participation or consent and he has received no proceeds from the sale of production. Plaintiffs prayer for relief seeks specific performance of the verbal agreement as amended and an accounting of the profits. In the alternative plaintiff seeks judgment awarding him damages for all expenses paid by him, lost time, use of his trucks and equipment aggregating the sum of $32,-000.00 and additional damages in the sum of $820,000.00 for breach of contract.

The trial court did not render written reasons in support of its judgment but presumably the exception was sustained on the ground stated in the exception, i. e.:

“The said petition discloses no cause of action in that it is not alleged that the alleged partnership was in writing and no partnership in Louisiana may acquire any real right or real property unless it is in writing and duly recorded ...”

In Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975) the court succinctly set forth the general rules applicable to the trial and consideration of exceptions of no cause of action. In that case the court said:

“The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La.1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); United Mine Workers v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899 (1959).
In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971); Erath Sugar Co. v. Broussard, 240 La. 949, 125 So.2d 776 (1961). Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and to avoid a miscarriage of justice. Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973).”

We have considered the pleadings filed by plaintiff in light of the clear rules above set forth and conclude that the allegations of fact set forth in plaintiff’s petition, when given every reasonable interpretation, although stating no valid ground for specific performance, accounting or breach of contract, do state a cause of action for recovery under quantum meruit.

Sand and gravel are substances to which the Louisiana Mineral Code applies. A landowner may lease his right to explore and develop his land for production of sand and/or gravel which lease creates in the lessee a real right subject to the laws of registry. Being an incorporeal real right subject to the laws of registry the ownership of a gravel lease or an interest therein cannot be established by parol evidence. By the same token since one cannot establish ownership of an interest in a mineral lease by parol evidence he is likewise precluded from demanding an interest in the profits therefrom because his entitlement to a share of the profits is dependent upon his establishing ownership of an interest in the mineral lease. See Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); McRoberts v. Hayes, 173 So.2d 27 (La.App. 4th Cir. 1965) affirmed on writ of certiorari, 248 La. 676, 181 So.2d 390 (1965); and Little v. Haik, 246 La. 121, 163 So.2d 558 (1964). In McRoberts, supra, wherein factual allegations similar to those contained in plaintiff’s petition were determined not to state a cause of action the court said:

“In order for plaintiff to obtain an interest in the leases or any of the revenues or profits therefrom he must first prove the existence of the partnership or joint venture. Since the petition does not allege a written agreement of partnership or joint venture none can be proved. The petition therefore does not state a cause of action for any interest in the leases or in any of the revenues or profits therefrom.

Likewise, since plaintiff does not allege a written agreement of partnership or joint venture to acquire the sand and gravel leases in question and is therefore precluded from establishing such agreement he cannot recover damages for the alleged breach of the agreement. See Davidson v. Midstates Oil Corporation, 211 La. 882, 31 So.2d 7 (1947); H. A. Bauman Inc. v. Tilly, 185 So. 504 (La.App. 2nd Cir. 1938); Hayes v. Muller, supra; and, Manuel v. Moity, 313 So.2d 278 (La.App. 3rd Cir. 1975), writ refused.

For the above reasons we determine that plaintiffs petition fails to state a cause of action for specific performance of the alleged verbal agreement, an accounting thereunder, and for damages for the alleged breach thereof and the trial court correctly sustained the exception insofar as these demands are concerned. However, we conclude that the trial court was in error in sustaining the exception and dismissing plaintiff’s suit in its entirety in that, in our view, his petition sets forth allegations of fact sufficient to state a cause of action for recovery of certain sums in quantum meruit. It must be remembered that under our law if a petition states a cause of action as to any ground or portion of the demand, the exception should be overruled. Plaintiff’s petition alleges a verbal agreement between him and the defendants for operation of the gravel leases and upon termination of such agreement he was not reimbursed for expenses paid by him, lost time, use of his trucks and equipment etc. In his prayer plaintiff prays for a money judgment sufficient to reimburse him for his alleged labor, out of pocket expenses and use of his trucks and equipment. Although it can be persuasively argued that this demand for reimbursement is part of his demand for breach of contract, his recovery of these items, if proved, in the absence of a valid contract, are recoverable under quantum meruit. Although plaintiff has not pleaded for relief in quantum meru-it he would be entitled to such relief under C.C.P. Article 862. In the recent case of Greer v. Continental Casualty Company, 347 So.2d 70 (La.App. 2nd Cir. 1977) the court stated:

“We abandoned the theory of the case pleading and in recent years have liberal ly construed our procedural laws to allow consideration of any cause of action or defense, even if not properly labeled or prayed for, if the pleadings taken as a whole, contain sufficient factual allegations to afford fair notice to the adverse party of the relief sought. See C.C.P. 862; Terral v. Bearden, 338 So.2d 141 (La.App. 2nd Cir. 1976) and cases cited therein . . ”

For the above and foregoing reasons the judgment of the trial court sustaining the exception of no cause of action and dismissing plaintiff’s suit is reversed and set aside and this matter is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

        . LSA-R.S. 31:4 provides:
      “The provisions of this Code are applicable to all forms of minerals, including oil and gas. They are also applicable to rights to explore for or mine or remove from land the soil itself, gravel, shells, subterranean water, or other substances occurring naturally in or as a part of the soil or geological formations on or unly-ing the land.”

      . LSA-R.S. 31:15 provides:
      “A landowner may convey, reserve, or lease his right to explore and develop his land for production of minerals and to reduce them to possession.”
      LSA-R.S. 31:16 provides:
      “The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.”
      LSA-R.S. 31:18 provides:
      “A mineral right is an incorporeal immovable. It is alienable and heritable. The situs of a mineral right is the parish or parishes in which the land burdened is located. All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry.”

      . ice Article 2275 provides:
      “Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”


text:
    Virgil PORTER, Plaintiff-Appellant, v. Doyle SMITH, d/b/a D. S. Engine & Welding Service, Defendant-Appellee.
    No. 6858.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellant.
    Rankin & Yeldell, Stephen J. Katz, Bas-trop, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff-lessor in this case petitioned the trial court for damages concomitant to a decree that the lease granted to the defendant permitting exploration for and removal of gravel on his property had been breached and was void. The trial court found the defendant had complied with all terms of the lease and accordingly, dismissed plaintiff’s suit. From that judgment plaintiff appeals.

The major thrust found in appellant’s assignment of error is the contention that the lease contained a potestative condition. Although the “theory of the case” doctrine has long been abolished in this state, plaintiff must still sufficiently set forth facts in his petition that will give the opposing party adequate notice of defenses which must be asserted. Cox v. Heroman, 298 So.2d 848 (La.1974); Greer v. Rohrer, 346 So.2d 1290 (La.App. 3rd Cir. 1977). Plaintiffs petition does not set forth any facts which would tend to notify the defendants that they intended to argue the lease was null because of a potestative condition. Use of the word “therefore”, followed by the term “failure of cause”, all found in paragraph 3 of the petition, only referred the defendants to the allegations previously mentioned in the petition, i. e., the items which plaintiff claimed constituted a breach of the lease.

It was within the province of the trial judge to allow any amendment to the pleading which he deemed proper. LSA-C.C.P. Article 1151. The judge did not abuse his discretion in refusing to consider plaintiff’s argument at trial attempting to enlarge his pleadings by showing the existence of a potestative condition. In our decision we likewise must limit ourselves to a consideration of those matters properly in the record before us. LSA-C.C.P. Article 2164. Nevertheless, we note that any potestative condition would have been cured by the defendant’s opening of a gravel pit. Lee v. Abernathy, 19 So.2d 670 (La.App. 2nd Cir. 1944); see also, Quality Materials of Tangipahoa v. Labarama, Inc., 361 So.2d 1285 (La.App. 1st Cir. 1978).

The record fully supports the court’s finding that all rentals were timely paid, that the minimum amount of gravel was removed from the premises and that the defendants did not mine gravel beyond the boundary of the leased premises. Since the required showing of manifest error is absent, we must sustain the judgment finding the terms of the lease were not breached by the defendant. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the reasons assigned above, we affirm the judgment of the trial court. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.