text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. L. Barbee PONDER, Jr.
    No. 11100.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Jerry F. Davis and Johnie E. Branch, Jr., Assts. Gen. Counsel, State Dept, of Highways, Baton Rouge, for State of Louisiana through the Department of Highways, defendant in mandamus hearing-appellee.
    Frank L. Koles, III, Amite, for L. Barbee Ponder, Jr., plaintiff in mandamus hearing-appellant.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

Pending a Department of Highways appeal in this case, the landowner demanded that the Department pay him, or deposit in the registry of the Court the excess amount of the judgment award over the amount initially deposited. Following refusal of his demand, the landowner filed a petition for writ of mandamus ordering such deposit. The district court rejected the demand of a writ of mandamus, and the landowner appealed. We affirm. (As the State of Louisiana through the Department of Highways, herein referred to as “the Department”, is the appellant in the appeal on the merits, and L. Barbee Ponder, Jr., herein called “the landowner”, is the appellee, and their roles as appellant and appellee are reversed in the instant matter, the terms “appellant” and “appellee” are avoided to prevent confusion.)

The Department defends on two grounds, viz.: First, although denominated “devolu-tive”, any appeal by the State from a judgment rendered in expropriation cases under the “Quick-taking Statute”, LSA-R.S. 48:441^460, is suspensive in nature; second, alternatively and because there can be no execution of the judgment pending such appeal, the District Court was divested of jurisdiction. LSA-C.C.P. Article 2088 provides that on the timely filing of an appeal bond or on granting of the order of appeal (as the case may require), the trial court retains jurisdiction over matters reviewable on the appeal only for purposes including to “execute or give effect to the judgment when its execution or effect is not suspended by the appeal”. The District Court did not consider the jurisdictional question because, as posed, it depended on a determination of the first issue (the suspensive or devolutive nature of the appeal) adverse to the landowner, and having so determined the first issue adversely to the landowner, the question of jurisdiction became moot, and it thus became unnecessary for the court to consider whether the demand for a writ of mandamus in execution of the judgment was a matter in the case reviewable under the pending appeal.

In State, Department of Highways v. McTeague, 244 So.2d 263, First Case (La.App. 1st Cir. 1970), we held that the failure of the Department of Highways to deposit in the registry of the court the excess amount of the judgment was not a condition precedent to taking a devolutive appeal under LSA-R.S. 19:13, and thus appellee’s motion to dismiss the appeal was denied.

Landowner relies on State v. Rownd, 119 So.2d 282 (La.App. Orleans, 1959), in which it was held that payment by the Department of Highways of the excess amount of the judgment did not constitute acquiescence because it was bound by law to make such payment. To the same effect was State of Louisiana through the Department of Highways v. Dodge, 166 So.2d 286 (La.App. 3rd Cir. 1964).

The Department relies on State, Department of Highways v. Holmes, 251 La. 607, 205 So.2d 416 (La., 1967). That case held that judgments against the State are not subject to execution by writ of fieri facias or otherwise, under the prohibition of Section 35 of Article III of the Constitution of 1921. (A similar provision appears in Section 10 of Article 12 of the Constitution of 1974.) It was further held that when the State takes an appeal in an expropriation case, although it is denominated a devolu-tive appeal, the effect of such appeal is suspensive, and the appeal cannot be dismissed for failure to pay the excess amount of the judgment. The Court there specifically overruled the Rownd and Dodge cases insofar as they held that the Department was bound by law to make the deposit of the excess award pending appeal.

The landowner seeks to distinguish the Holmes case on the point that the present case is not concerned with the dismissal of the appeal. The distinction is not reasonable. The holding of the Holmes case is unequivocal and indistinguishable. The State having taken a devolutive appeal is relieved of the necessity of paying or depositing the excess amount pending the appeal, and the judgment may not be executed against the State by mandamus or otherwise.

For the foregoing reasons, the judgment dismissing and rejecting the demands for a writ of mandamus is affirmed at defendant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: CLAIBORNE, Judge.

license: Public Domain

text:
    SERVICE FINANCE COMPANY OF BATON ROUGE, INC. v. Joseph DAIGLE.
    No. 11105.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    A. L. Carbonette, Baton Rouge, for plaintiff Service Finance Co. of Baton Rouge, appellant.
    James R. Coxe, III, Baton Rouge, for defendant Joseph Daigle, appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

Plaintiff sues on a note incidentally seeking recognition of a chattel mortgage purportedly given to secure the indebtedness. Defendant sets up discharge in bankruptcy as a defense. Plaintiff contends that subsequent to the filing of the petition in bankruptcy, defendant orally reaffirmed the indebtedness. From a judgment rejecting its demands, plaintiff appeals. We affirm.

The question is whether there was a new promise or agreement to pay.

Following receipt of notice of the filing of a petition in bankruptcy, plaintiff’s manager, Corliss Herring, called the defendant. Mr. Herring described the contact as follows:

Q And what was Mr. Daigle’s response?
A That he would go ahead and continue paying as he had done before I received the notice.
Q How do you mean he would continue paying before he received the notice, would you clarify that?
A Well, he had been paying every month before this, and I, when I got it I was a little shocked and called him to see what had happened, and he said that he would continue to pay it. And I received a payment two days after I received the bankruptcy notice.
Q And how many payments after that did he make?
A He paid three payments after I received the notice.
Mr. Herring also testified as follows:
Q Can you recall verbatim just what this gentleman said over the phone when you talked to him?
A You mean after I received the notice?
Q Yes, the only time you talked to him.
A Right. No, all he told me that he was going to continue to pay this account.
Q And that is the sum and substance about what he said?
A That’s about right, yes.

The bankruptcy notice was dated April 21. Payments were received on April 23, May 19 and June 23.

Mr. Fred Johnson, an employee of the finance company also called Mr. Daigle the day after the bankruptcy notice was received. He testified as follows:

Q And what did Mr. Daigle say?
A He said that he always paid his account, and he would continue to pay the account, the account as he had in the past.
Q Did he indicate what the payments would be?
A Not at, he did not indicate it. I mentioned to him what the payment schedule was, and he did, said that he would go along with that, and the payment schedule is twenty-five payments at thirty-six dollars and forty-one cents.
Q Did he make any payments subsequent to that conversation?
A Well, he made three payments after that, excuse me, two payments after that. We received a payment on the 23rd of April, one on the 19th of May and one on the 23rd of June. So, after our conversation, well, really, I guess two payments were made, but one had been made prior to the conversation.

Mr. Herring was unable to state what disposition had been made of the mortgaged property by the bankruptcy trustee. Plaintiff had apparently made no effort to file a proof of claim or otherwise pursue the matter in bankruptcy court. No representative was sent to the meeting of creditors.

The District Court held that the indication by Mr. Daigle that he intended to pay was nothing more than an acknowledgment of a moral obligation to pay the debt. The court further held that neither the debtor’s words nor his actions constituted a reaffirmation of the indebtedness as an enforceable obligation.

In Irwin v. Hunnewell, 207 La. 422, 21 So.2d 485, (La.1945) the Supreme Court quoted the following paragraphs from 8 C.J.S., Bankruptcy, § 583, p. 1571 and 6 Am.Jur., Bankruptcy, § 532, p. 832, respectively:

“In order to revive a liability on a debt discharged in bankruptcy or to create a new enforceable obligation, there must be an express promise to pay the specific debt, made to the creditor or his agent, and while no particular form of language is necessary, to constitute such a new promise there must be a clear, distinct, and unequivocal recognition and renewal of the debt as a binding obligation, anything short thereof being insufficient, as, for example, the mere acknowledgment of the discharged debt, or the expression of hope, desire, expectation, or intention to pay or revive the same.”
“Unless otherwise provided by statute, an enforceable promise to pay a discharged debt may be made orally. The promise must, however, be either express or directly implied in the terms used; it cannot be implied simply from conduct recognizing the debt, for example, from a payment on account of either principal or interest. No particular form of words need be used provided the promise is clear, distinct, and unequivocal, and is constituted of words which in their natural import identify the debt and express a present intention on the part of the bankrupt to bind himself to its payment. A simple acknowledgment of the justness of a debt and of its present existence as a debt formerly contracted and now unpaid, or the expression of a hope, desire, expectation, or intention to pay, is not sufficient. Nor is the effect of a discharge avoided by a promise to do something other than pay the discharged debt.”

See also Securities Finance Company v. Washington, 195 So.2d 733 (La.App. 1st Cir. 1967).

A subsequent promise to pay is a new obligation of which the preexisting debt is only the consideration. The obligation must, therefore, clearly result from the words used, or it cannot be enforced. Bartlett v. Peck, 5 La.Ann. 669 (La.1850).

To be effective such a promise must be (to recapitulate the words variously used in the jurisprudence) direct, definite, express, clear, distinct, unambiguous and unequivocal.

Plaintiff cites Credithrift of America No. 4, Inc. v. Nash, 256 So.2d 308 (La.App. 1st Cir. 1971). That case is distinguishable, however, in that the debtor, after the bankruptcy hearing, told the creditors’ manager that if he would not seize the furniture on which the finance company held a chattel mortgage, the debtor would recommence payments on the note in a specific month. Based on these assurances the finance company manager agreed to withhold action on the account at that time. The debtor conceded that he had made such an agreement.

The creditor’s acceptance of an offer or proposal to make a new contract for the payment of the discharged debt creates an enforceable contract. (See Irwin v. Hunnewell, supra, quoting 6 Am.Jur., Bankruptcy, p. 533.) In Credithrift of America No. 4, Inc. v. Nash, supra, there was an agreement or promise to pay.

We agree with the District Court that in the present case the acknowledgment of the debt by the bankrupt was not an unambiguous promise to pay but a recognition of a moral obligation.

For the foregoing reasons, the judgment of the District Court will be affirmed at appellant’s cost.

Affirmed.


author: BOLIN, Judge.

text:
    Howard L. McCARGO, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellee.
    No. 13119.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Piper & Brown by Bobby L. Stromile, Shreveport, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

This case having been called for argument in the manner and at the time prescribed in the Uniform Rules of the Courts of Appeal, Rule V, Section 4, and the appellant having neither appeared nor filed a brief prior to the time the case was called for argument, the appeal is considered abandoned and is dismissed at appellant’s cost. Louisiana Code of Civil Procedure, Article 2162 and Uniform Rules, Courts of Appeal, Rule VII, Section 5(b).


text:
    Franche Kerr STANFIELD, Plaintiff-Appellee, v. Marvin Franklin STANFIELD, Defendant-Appellant.
    No. 13122.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for defendant-appellant.
    S. Judd Tooke, Shreveport, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Plaintiff obtained judgment against her divorced husband for past due child support and attorney fees. Defendant appeals from that portion of the judgment awarding attorney fees. We reverse.

In a comprehensive brief before this court appellant’s counsel states the purpose of the appeal is to secure a definitive ruling on whether or not attorney fees may be awarded in a suit to collect past due alimony or child support.

Attorney fees are not ordinarily awarded in a civil action except where authorized by statute or contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958) and cases cited therein. There are several well-recognized exceptions to this rule, which exceptions are not relevant to this ease.

There have been only two Louisiana Supreme Court cases involving the issue before us and while the facts may be different in each case, the decisions are diametrically opposed. In Newson v. Newson, 176 La. 699, 146 So. 473 (1933), a judicially separated wife sued for child support. The court awarded the wife attorney fees and stated:

“. . . Alimony [child support], it may be said, is essential for the child’s sustenance. When payment of it is refused, or a sufficient amount is refused, the child should be placed in position to obtain it, and this may be accomplished only by allowing reasonable attorney’s fees, where the child is successful. The alimony allowed should not be eaten up partially by attorney’s fees, and the child thereby deprived, in part, of the object and purpose of allowing it. This is implied in the reason of the law for granting alimony.”

Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950), involved an action to increase a previously awarded alimony judgment and to accrue unpaid alimony. Without mentioning Newson the court denied the demand for attorney fees in the following language.

“With regard to the demand and award for attorney’s fees we know of no law and have been referred to none which provides for such fees in a case of this kind. In this respect, the judgment will have to be reversed.”

From the Newson and Wainwright cases there have developed two distinct lines of court decisions. Those cases following Newson and allowing attorney fees are: Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App. 3d Cir., 1975), and Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3d Cir., 1976). The cases following Wainwright and disallowing attorney fees are: Stoltz v. Stoltz, 162 So.2d 103 (La.App. 4th Cir., 1964), and Janise v. Janise, 328 So.2d 711 (La.App. 3d Cir., 1976).

We choose to follow the Wainwright decision primarily because it is the latest expression of the supreme court on the subject. It is also consistent with our long established rule that attorney fees are not recoverable except where authorized by contract or statute.

That portion of the judgment awarding plaintiff attorney fees is reversed and plaintiff’s demand for this item is rejected; otherwise the judgment is affirmed at appellant’s cost.


author: PRICE, Judge.

text:
    CADDO PARISH SCHOOL BOARD, Plaintiff-Appellee, v. COTTON BAKING COMPANY, INC., Defendant-Appellant.
    No. 13124.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for defendant-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by John R. Pleasant, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Cotton Baking Company has appealed the judgment awarding damages of $6,341.50 to the Caddo Parish School Board for an alleged breach of contract by the bakery to furnish bread products to the Caddo Parish schools for the 1973-1974 school year.

In July, 1973, the School Board mailed specifications and conditions to area bakers inviting bids for furnishing bread and bread products in the coming school year. Cotton submitted the lowest bid, and it was accepted by the School Board on August 1st. On August 17th, Cotton notified the Board by letter that it could not furnish the products at the prices quoted in its bid. This action resulted from the failure of Cotton officials to consider impending price increases in flour caused by the sale of U.S. wheat to Russia. The School Board obtained these products at a higher price under subsequent bid negotiations and sued Cotton for this increased cost, together with the expense incurred in obtaining the additional bids under the public bidding law.

Cotton contends the acceptance of its bid proposal did not create an enforceable contract because:

1) The submission of the bid was a unilateral revocable promise to sell.
2) The Board’s obligation to purchase is potestative thus rendering the proposed contract a nullity.
3) The parties mutually agreed to terminate the contract.
4) The contract was voidable as it was based on an error of fact.

Cotton contends its bid was a unilateral promise to sell and is unenforceable until the School Board actually places a bread order. Under this construction of the agreement, Cotton contends it had the right to revoke its offer to sell prior to receiving a purchase order from the Board.

This interpretation is not in accord with the facts of the case. There is no doubt Cotton could have withdrawn its offer prior to acceptance by the Board. However, upon the School Board’s acceptance of the bid, mutual obligations were established. Cotton was obligated to fill all orders for bread products placed by the Board during the period of the contract at the price quoted. The Board was obligated to purchase all of its bread products from Cotton. The Board had, therefore, acted to its detriment in giving up the right to purchase products from other area bakeries during this period.' These mutual obligations create a bilateral commutative contract rather than a unilateral offer to sell. La. Civil Code Arts. 1798, 1803.

Cotton also contends the contract is null because its existence is dependent solely on the will of the School Board which is a prohibited potestative condition. The provision of the specifications and conditions relied on by Cotton for this position is as follows:

I understand as bidder that when I am awarded a contract for any item or group of items I will receive all orders for that item or group of items from the schools to which my quotation applies for the entire school year 1973-1974 or any portion thereof designated by the Caddo Parish School Board. Cancellation of the bid will be preceeded [sic] by two (2) weeks written notice to the successful bidder.

Cotton contends this provision relieves the Board of the obligation of buying any bread and allows it to cancel the contract at any time after giving the required notice.

The Board contends its reservation of the right to limit the period of the contract does not affect the validity of the agreement or constitute a prohibited potestative condition.

Under an offer of proof, testimony was presented which showed the purpose of the termination clause was to permit the Board to discontinue the purchase of bread from bakeries if it should be given flour under a prospective Federal program. The evidence also shows Cotton was aware of the purpose behind the termination clause and tacitly consented to this condition by bidding under the known circumstances.

A termination privilege on the part of an obligee to a contract is specifically provided for by La. Civil Code Art. 2036 as follows:

An obligation may also be made, by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property sold.

We conclude the Board’s right to terminate the contract was not potestative, but was a valid privilege to determine the duration of the contract. See Long v. Foster & Associates, 242 La. 295, 136 So.2d 48 (1961), in which the Supreme Court upheld a similar termination provision. ,

Cotton further contends the contract was tacitly revoked by the mutual consent of the parties. This argument is based on the School Board’s actions in resubmitting invitations for additional bids without responding to Cotton’s revocation letter of August 17th. We find no merit to this argument. The August 17th letter by Cotton stating unequivocally it could not comply with its bid was an active breach of the contract. There was no duty for the Board to respond or to place Cotton in default.

The Board was required to act promptly to obtain bread supplies for the opening of schools. Its resubmission of bid invitations immediately after receiving Cotton’s letter cannot be construed as a tacit mutual abrogation of the contract as contended by Cotton.

The remaining defense urged by Cotton is that an error was made in the calculation of the bid price on Pullman loaves of white bread. It contends the manager of its Shreveport office overlooked the escalating effect the “Russian Wheat Deal” was having on the cost of flour, and that the School Board should have been aware of the error as its bid on this item was $.09 a loaf less that the other bids. Cotton contends it should be allowed to rescind its agreement because this error was in the principal cause or motive of the contract.

The alleged error is not an error in mathematical calculation, but an error in judgment which does not entitle Cotton to rescind the agreement. In addition, Art. 1826 requires both parties to be aware of an error before a contract can be voided. There is no evidence that the School Board had any knowledge of the effect the Russian wheat sales would have on the price of bread products. The fact that Cotton’s bid on the item was much less than the other bid is not in itself sufficient to impute knowledge of an error to the Board.

There is no issue as to the amount of damages awarded by the trial court. The judgment is affirmed at appellant’s costs.


author: MARVIN, Judge.

text:
    David C. WILLIAMSON, Plaintiff-Appellee, v. C. P. STRANGE, d/b/a Strange Motor Company, Defendant-Appellant.
    No. 13126.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Horton & Jones by Donald G. Horton, Coushatta, for defendant-appellant, C. P. Strange, d/b/a Strange Motor Co.
    Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellee, David C. Williamson.
    Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendant-appellee, Ford Motor Co.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

In this redhibitory action, the trial court originally awarded the purchaser of a new pickup truck a diminution in the price instead of rescinding the sale. On appeal, we approved this approach but remanded for evidence as to the reduced value of the pickup with existing defects when purchased new on October 18, 1973. Williamson v. Strange, 323 So.2d 875 (La.App.2d Cir. 1975).

On remand, expert testimony was introduced as to the amount of diminution the defects caused. Plaintiff’s expert testified the truck was diminished in value by $1650. Defendant’s expert opined the value was diminished by only $200. The trial court awarded $930. Defendant appeals. Plaintiff answered, seeking an increase.

Much discretion is afforded trial courts in determining awards in cases of this type. We find no error or abuse of discretion below in determining the reduction in price. At appellant’s cost, judgment is

AFFIRMED.


text:
    Gwendolyn Bagley AURA, Plaintiff and Defendant-in-Rule-Appellant, v. Albert AURA, Plaintiff and Defendant-in-Rule-Appellant.
    No. 13132.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Bodenheimer, Jones, Klotz & Simmons by David B. Klotz, Shreveport, for Gwendolyn Bagley Aura, appellant.
    Mecon, Scott & Woods by Leroy H. Scott, Jr., Shreveport, for Albert Aura, appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Albert Aura obtained a divorce; the wife was granted custody of their two minor children and he was ordered to pay child support. The father remained single but the mother remarried. By separate actions the father sought to decrease the support award and the mother sought to increase it. The trial judge, for reasons made a part of the record, found the needs of the children had increased, which expenses were “being absorbed by the situation now existing” [obviously referring to the mother being married to a capable provider]. From judgment rejecting the demands of both mother and father, each appeals. We affirm.

The question on appeal is whether the record supports the trial court’s refusal to modify the previous child support award and particularly whether the wife’s remarriage to a capable provider is relevant to this question.

When appellants were divorced in October 1974 it was stipulated the father had net income after taxes of $19,500 and would pay $400 a month for the support of the children plus 80% of their medical expenses. At the time of the present suit the father’s income had not changed. The mother remarried in July 1975. Her present husband, who has custody of and supports two minor children of his previous marriage, has a net income after taxes of $33,800.

The father contends the award should be reduced primarily because the mother is now married to a capable provider and is able to contribute more to the support of the children.

The mother contends the award should be increased because the needs of the children have increased and the earnings of her present husband should not be considered in determining her ability to support children of her former marriage.

Marcus v. Burnett, 282 So.2d 122 (La.1973), has been cited by both appellants. In Marcus the father and mother had both remarried and there were stepchildren in each home. The court, in holding it was the obligation of the father and the mother to support their children, stated:

“. . . While [the second husband] has no legal obligation to support the children in question, this court simply will not blind itself to the reality that the mother, who does have a legal obligation to support her children, has married a capable provider who has enhanced her opportunity to furnish a portion of the support of the children in her custody. “The analysis which we have made here regarding [the mother’s] ability to support her children is consistent with the principle which we have expressed earlier in this opinion and which we feel should govern when a court is determining the amount of child support to be awarded. That is, the court should consider the totality of the circumstances involved. (Emphasis supplied) Id. at 125

We find the father’s income has not changed but the needs of the children have increased. A portion of this increase is attributable to the fact the mother has remarried and her present husband’s income exceeds that of the children’s father by more than $14,000 a year. This has resulted in the children having a higher standard of living and increased expenses. Although the second husband owes no legal obligation to furnish any portion of these increased needs, the mother’s obligation remains and her present husband’s income is part of the totality of the circumstances referred to in Marcus. The mother and father both are obligated to furnish the increased needs of their children. Considering all the circumstances, we find the trial court was correct in rejecting the demands of appellants to alter the original child support award.

The judgment is affirmed and each appellant is cast for one-half of the costs.


author: HALL, Judge.

text:
    J. Earl ALEXANDER, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13135.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., and Bernard L. Malone, Jr., Baton Rouge, for defendant-appellant.
    Baker, Culpepper & Brunson, by Herman A. Castete, Jonesboro, for plaintiff-appellee,
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff, J. Earl Alexander, sold to the defendant, State of Louisiana, Department of Highways, for a price of $1,118, property to be used for highway purposes in connection with the widening and improving of Highway 4 near Jonesboro. By this action, plaintiff seeks to rescind the sale on the grounds of lesion beyond moiety. After trial, the district court found the property had a value at the time of the sale of $12,701.40. Judgment was rendered rescinding the sale, but recognizing the Department’s right to elect within a reasonable period to retain title by paying the full value, less the amount previously paid. The judgment cast defendant for all costs, including specifically plaintiff’s expert witness fees in the amount of $2,925.

The defendant Highway Department appealed, specifying the following errors:

“(1) The Court committed manifest error in finding that the property conveyed had a market value at the time of the sale of $12,701.40 (30 cents per square foot).
(2) The Court committed error in awarding as costs of Court, expert witness fees totaling $2,925.”

Applicable Law

In sales of immovable property, the vendor may be relieved if the- price given is less than one-half of the value of the property sold. LSA-C.C. Art. 1861. Upon a finding of lesion beyond moiety, the purchaser may elect, within a period to be designated by the court, either to rescind the sale or to have it confirmed on paying the full value. LSA-C.C. Art. 1877. The standard to be applied for the determination of the value of the property is the fair market value at the time of the sale. The party attempting to set aside the sale must discharge the burden of proof incumbent upon him by proving the value of the property by clear and convincing evidence. Peevy v. State, Department of Highways, 340 So.2d 642 (La.App. 2d Cir. 1976); Valley Land Corporation v. Fielder, 242 So.2d 358 (La.App. 2d Cir. 1970).

Fair Market Value

The property sold is a strip of land approximately 60 feet wide with 660 feet frontage on Highway 4, containing 42,338 square feet, situated in a rural area about .8 mile southwest of the city limits of Jones-boro. The price of $1,118 paid by the Highway Department for the property amounts to less than $.03 per square foot.

Six expert appraisers testified in this case, three for the plaintiff and three for the defendant. The defendant’s experts testified the property had values ranging from $.05 per square foot to $.12 per square foot. The estimates of value by plaintiff’s experts ranged from $.25 per square foot to $.40 per square foot. We agree with the trial court’s finding that plaintiff proved by clear and convincing evidence that the consideration paid was substantially less than one-half the value of the property. We conclude, however, from the totality of the evidence that the fair market value of the property at the time of the sale was less than $.30 per square foot as determined by the trial court.

Plaintiff relied on three appraisers, Ha-beeb Monsur, H. L.- Bass, and O. L. Jordan. Monsur placed a residential .value of $.25 per square foot and a commercial value of $.60 per square foot on the property. The only comparable sale he used to arrive at the higher commercial value was a sale on Highway 4 about a block from the courthouse in downtown Jonesboro. The subject property is nearly a mile outside the corporate limits of Jonesboro. The comparables he used in arriving at the $.25 residential value were located in Forest Acres Subdivision. Substantial upward adjustments were made because the subject property could be used without regard to zoning restrictions.

H. L. Bass placed a value of $.30 per square foot on the subject property. The three comparables he used were also located near the Jonesboro courthouse. While he made downward adjustments from these sales to arrive at his appraised value, the size of the adjustments indicates the speculative nature of his appraisal.

Jordan placed a value of $.25 per square foot on the property. He Utilized comparable sales in Forest Acres Subdivision, making substantial upward adjustments for the location of the subject property on Highway 4.

Gene Cope, Wayne Medley, and Dean Carter testified for the Department of Highways. Cope placed a value of $.05 per square foot on the property. His compara-bles fronted on gravel roads near the subject property, but removed from the highway. Medley valued the property at $.115 per square foot. Most of his comparables were on Highway 4. However, some were east of the town of Jonesboro and none were very close to the subject property. Carter, utilizing essentially the same-comparable sales as Medley, arrived at a value of $.12 per square foot. The square foot price of the comparable sales ranged from $.11 to $.38 per square foot. The two appraisers made substantial downward adjustments from most of the prices.

All of the appraisers relied on so-called comparable sales, none of which were actually very comparable, requiring substantial adjustments. The thrust of the appraisers’ testimony was that the property had a highest and best use either for residential or commercial or both considering its size. The trial court found the highest and best use to be commercial. The evidence does not, however, establish any significant difference in value for commercial and residential property in this area. Our conclusion, based on all the evidence, is that the evidence supports a finding of $.20 per square foot or $8,467.60, as the fair market value of the property at the time of the sale. This result is in line with the values placed on property along Highway 4 in several expropriation cases previously decided by this Court. See State, Department of Highways v. Allen, 332 So.2d 922 (La.App. 2d Cir. 1976); State, Department of Highways v. Shackelford, 331 So.2d 884 (La.App. 2d Cir. 1976); State, Department of Highways v. Hammons, 322 So.2d 279 (La.App. 2d Cir. 1975); and State, Department of Highways v. Coblentz, 322 So.2d 276 (La.App. 2d Cir. 1975).

In the deed by which the property was conveyed from plaintiff to defendant, plaintiff reserved all minerals and defendant agreed to construct a standard vehicular approach from the roadway to plaintiff’s remaining property. Defendant contends the mineral reservation should be viewed as reducing the value of the property conveyed and that the obligation to construct a vehicular approach should be viewed as additional consideration paid by the defendant.

No value was attributed to the mineral rights in the estimate of value made by the expert appraisers or in the ultimate determination by this Court of the value of the property conveyed. There was no evidence indicating that the property conveyed had any less value because of the mineral reservation. While the obligation to construct a vehicular approach could be viewed as additional consideration for the sale, no evidence was offered to establish the value of this obligation for which credit in addition to the cash previously paid could be given against payment of the balance of the full value of the property, if defendant elects to confirm the sale.

Court Costs — Expert Witness Fees

Defendant contends that under the provisions of LSA-R.S. 13:4521 it cannot be required to pay any court costs (including expert witness fees), except stenographers’ fees. An exception to the general rule exempting state agencies from payment of court costs has been made for the fees of expert witnesses in expropriation and appropriation cases, because the Constitution mandates that the landowner receive full value for the property taken. Westwego Canal & Terminal Co. v. Louisiana Highway Commission, 200 La. 990, 9 So.2d 389 (1942); Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3d Cir. 1968). The exception is not applicable to this suit against the Department of Highways because the right asserted by plaintiff is not his constitutional right to adequate compensation due upon a taking by a public body under power of expropriation. Plaintiff elected not to assert his constitutional right judicially when he voluntarily and conventionally sold his property to the defendant. Plaintiffs right asserted in this suit arises under the Civil Code provisions relating to obligations and sales of immovable property generally. This suit is, therefore, indistinguishable from an ordinary contract or tort claim against a state agency. LSA-R.S. 13:4521 applies and defendant cannot be cast for costs other than stenographers’ fees. Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605 (1944). Mullin v. Skains, 205 So.2d 207 (La.App. 2d Cir. 1967).

Decree

The judgment appealed from is amended to reduce the amount the Department must pay to retain title to $8,467.60, together with legal interest from date of judicial demand until paid, subject to a credit of $1,118 previously paid. The judgment is further amended to limit the court costs for which the Department is cast to stenographers’ costs. As amended, the judgment is affirmed.

Amended, and as amended, affirmed.

      . LSA-R.S. 13:4521 provides:
      “Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”


text:
    In re STATE of Louisiana in the Interest of Kenneth L. YOUNG et al.
    No. 13136.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      Sonny N. Stephens, Winnsboro, for defendant-appellant Joyce Stevens.
    Jimmie C. Peters, Asst. Dist. Atty., Caldwell Parish, Jena, for plaintiff-appellee State of Louisiana.
    Cameron C. Minard, Columbia, for Minors.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This proceeding was instituted by a petition of the Division of Family Services of the State of Louisiana seeking to remove five minor children from the home of their parent and step-parent on allegations the children were being neglected.

The children, all boys, range in age from four years through twelve years. The four older children were born to appellant, Joyce Stevens, prior to her marriage to Marvin Stevens. Family Services initiated an investigation after receipt of complaints that the children were being physically abused, neglected, and subjected to immoral conditions by Mr. and Mrs. Stevens. As a result of the investigation, Family Services requested, and was granted, an order awarding it the temporary custody of the children pending a hearing. Following a contradictory hearing, the court made its temporary custody order absolute, and placed the children under the custody of Family Services.

Joyce Stevens, the mother of the children, has appealed assigning as error the insufficiency of proof on which the district court based its finding of neglect.

LSA-R.S. 13:1570 grants the district court jurisdiction over a child under seventeen years whose parent neglects to provide the necessary care for his well being.

A neglected child is further defined in LSA-R.S. 13:1569, paragraph 16b as one:

sfc * ¡{c # * sjs
who is without proper parental care and control, or subsistence, education, medical or other care or control necessary for his well being because of the faults or habits of his parents, tutor, or other custodian or their neglect or refusal, when able to do so, to provide them; or
* * * * * *

Although there is evidence of unsanitary and unwholesome living conditions in the family home, the most serious complaints on which the trial judge based his order were instances of physical abuse of the children and improper sexual behavior by the parents in their presence.

The four-year-old child was found to have bruises on his face and back which the twelve-year-old child testified were caused by Mr. Stevens striking the child with his hand and with a belt. The severity and nature of the bruises were confirmed by a physician who saw the child at the request of Family Services.

The twelve-year-old child further testified the children were afraid of Mr. Stevens, and that he frequently struck or kicked the children when angry at them.

This same child testified Mr. and Mrs. Stevens improperly subjected the children to viewing of sexual activity in the home on frequent occasions.

Although appellant denies these accusations, the trial judge found the testimony of the child believable, and concluded there was a “tenor of violence in the household” which would subject the children to the possibility of injury. He further found the evidence of improper sexual behavior to be detrimental to the best interest of the children.

These findings by the trial court are supported by the evidence and bring the children within the purview of the statutory definition of a “neglected child.” The judgment is affirmed at appellant’s costs.


text:
    Jeff DUBOIS et al., Plaintiffs-Appellees, v. Dr. Edward Arlon HAND, Defendant-Appellant.
    No. 13137.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for Dr. Edward A. Hand.
    Horton & Jones by William R. Jones, Coushatta, for Jeff Dubois, Individually and as Administrator for the Estate of his minor son, Don Dubois.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Defendant appeals from a judgment in favor of plaintiff who sued for wages for work done by plaintiff and plaintiff’s 15-year-old son on defendant’s cattle farm. The litigation stems from a misunderstanding between the parties as to the basis upon which defendant was to pay for the work performed.

Before 1975, plaintiff worked for several years for defendant as a farm laborer. He periodically reported his time to defendant and was paid $2.00 an hour. Early in 1975, plaintiff — an uneducated, unaffluent laborer — expressed a desire to have some cows of his own before he got too old to work. Defendant offered him the opportunity of earning through his labor, an interest in the small herd of cows (less than 100) defendant kept on his 200-acre farm with less than 150 acres in pasture.

Plaintiff apparently misunderstood the offer and thought he would receive a specific number of cows at the end of every year, based on the hours worked. When the misunderstanding became heated in January, 1976, defendant formally terminated plaintiff’s employment as a farm laborer and as a janitor and handyman in a nursing home managed by defendant in Coushatta. Plaintiff then brought suit for the hours worked during the preceding ten months by him and his own son on defendant’s farm. Defendant contested plaintiff’s demands, contending the number of hours claimed by plaintiff were fabricated and grossly exaggerated; that he had never agreed to employ plaintiff’s son, but had forbidden most of the son’s activity around the farm and particularly the operation of machinery thereof; and that in any event, defendant should receive credit for sums paid and for two slaughtered calves given to plaintiff for his consumption during the time in question.

Plaintiff produced a calendar on which he claimed to have written each day the number of hours worked by himself and his son and the general area of work (“cow, hay, fence,” etc.). Neighbors testified as to the general activity of defendant and his son on the farm.

Defendant showed that some of the chores plaintiff and his son claimed to have done could have been performed in fewer hours than plaintiff claimed; that on one or more days when mowing was claimed to have been done, it was raining; and that on many days, the hours of daylight remaining after 3:00 p. m. (when plaintiff left the nursing home to change clothes and drive five miles to the farm to work), exceeded the number of hours claimed by plaintiff. Plaintiff recorded the time alleged to have been worked only in hours and not in fractions thereof, claiming that if he only worked a fractional part of an hour he did not charge defendant.

In short, plaintiff recorded 765 hours for himself and 442 hours for his son, a weekly average of approximately 30 hours between them, or about 20 hours average for plaintiff and 10 hours average for his son. Defendant attempted to reconstruct the hours plaintiff should or could have worked, and reached a total exceeding 250 hours.

The lower court saw and heard the witnesses and resolved the factual disputes and contradictions in the testimony against defendant. The lower court noted defendant’s admission that there was no definite agreement but that at the end of the year the value of plaintiff’s services would be determined and plaintiff would be given a proportionate interest (a “percentage”) of the herd of cattle. This interest or percentage, indefinite in the beginning, was to be negotiated at the end of the year.

Defendant complains on appeal that the lower court erred in not considering defendant’s evidence in defense, but rejecting it and holding in effect that defendant was barred or estopped from contesting the hours plaintiff claimed to have been worked. This complaint arises from this language in the trial court’s reasons for judgment:

“For more than four years prior to 1975, [defendant] had accepted the day-to-day record kept by [plaintiff] of the time he and his son . . . worked on the farm . . . Since this was an acceptable method, this Court finds it should be acceptable in the time here in question.”

We do not interpret the lower court’s language to mean that no consideration whatever was given to defendant’s evidence and that defendant was legally estopped to contest the number of hours plaintiff claimed as time worked. Our review of the record and the entirety of the lower court’s reasons for judgment convinces us that the lower court performed its duty by considering all evidence and in assigning appropriate weight thereto. The lower court’s written reasons for judgment expressly mentions the several contentions of defendant and generally summarizes evidence defendant offered in support of the same.

Defendant also complains that he should be allowed credit for $169.00 paid plaintiff during the time in question. The record shows, however, that defendant periodically paid plaintiff by the hour for mechanical or welding work done by plaintiff, as opposed to plaintiff’s work as a farm laborer. In essence, defendant’s complaints relate to the lower court’s assigning more weight to plaintiff’s evidence than to defendant’s. This is within the discretion afforded a trial court in the performance of its duty which shall not be disturbed in the absence of manifest error. Belanger v. East Texas Service Corporation, 338 So.2d 181 (La.App. 2d Cir. 1976).

During the time in question, plaintiff had slaughtered two calves for his personal use at defendant’s authorization. Defendant recited a portion of the conversation between himself and plaintiff early in 1975 as follows:

“He [plaintiff] said, ‘By the way, Doc, I won’t be getting any cows now, for a while, is that right?’ I [defendant] said, ‘That’s right.’ He said, ‘What about me getting one yearling to put in my freezer in the fall?’ I said, ‘. . . you can get a yearling every time you eat one up, that’s no problem, you know, we will just give you all you want for the deep freeze.’ He said, ‘Well, that just suits me fine, I’ll just be glad to get some meat for my deep freeze.’ ”
Civil Code Art. 1523 reads:
“There are three kinds of donations inter vivos:
“The donation purely gratuitous, or that which is made without condition and merely from liberality;
“The onerous donation, or that which is burdened with charges, imposed on the donee;
“The remunerative donation, or that the object of which is to recompense for services rendered.”

A manual gift of a movable (complete upon delivery), may fall into any one of the three categories of donations. See C.C. Art. 1539, Ackerman v. Larner, 116 La. 101, 40 So. 581 (1906). At the time defendant authorized plaintiff to slaughter calves for his deep freezer, defendant may have intended that he receive credit at the end of the year for calves slaughtered by plaintiff when the ultimate accounting was made and plaintiff’s “interest” in the herd negotiated. We may speculate that his authorization to plaintiff was intended as a fringe benefit of employment. Defendant’s recitation of the early 1975 conversation does not reveal his intent.

In any event, we uphold the result below whether defendant’s donation of the slaughter calves was a pure gratuity, or was intended as an onerous transfer, because in the latter instance, defendant’s own testimony shows he neglected to clearly impose whatever conditions he may have intended in verbally authorizing plaintiff to have the calves slaughtered for personal consumption.

We find no manifest error. At appellant’s cost, judgment is

AFFIRMED.

      . Professor Oppenheim has suggested that remunerative or onerous donations, which are not subject to the rules of donations if they do not meet the formula of C.C. Art. 1526, “. might be more properly referred to as onerous or remunerative transfers." 43 T.L.R. 731, 754.


author: JONES, Judge.

text:
    Mary Warmack SMITH, Plaintiff-Appellant, v. Chesley O. WARMACK, Jr., Defendant-Appellee.
    No. 13139.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Mecom, Scott & Woods by B. J. Woods, Shreveport, for plaintiff-appellant.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Mary Warmack Smith filed suit to partition the community of acquets and gains which existed between her and Chesley 0. Warmack prior to their Arkansas divorce. The lower court found the parties had previously entered into a community property settlement, and each was the owner of the property they respectively received by the terms of the agreement. The trial court rejected plaintiff’s demands for a partition and she appeals. We affirm.

The parties were separated in September, 1973. Plaintiff left the marital domicile and moved to Arkansas. At the request of plaintiff and her attorney, defendant traveled to Arkansas on October 5, 1973 and signed a “waiver of service and entry of appearance” statement in connection with plaintiff’s divorce action against him. Along with the waiver of service, the statement also contained this language:

“And Mary Rose Warmack on acceptance and filing of this instrument in the court above set out waives all right, title, and interest in and to any and all community property to which she might be entitled to in the State of Louisiana.”

On October 19, defendant returned to the office of his wife’s attorney in Arkansas. At that time defendant and plaintiff signed a document which conveyed plaintiffs interest in the community home to defendant, and in which he assumed payment of the mortgage against the property. They further agreed plaintiff would receive their 1969 Ford automobile and each would receive miscellaneous items located in their former home. Plaintiff proceeded with her legal action and on December 27, 1973 was granted a decree of absolute divorce by the Arkansas court. The divorce judgment specifically recognized the wife’s ownership of the 1969 Ford. She filed this action for partition on April 22, 1975.

Although the wife’s testimony with regard to the signing of the deed is somewhat ambiguous, we conclude from the totality of her testimony, not only with regard to the signing of the deed but also that dealing with the filing of the “waiver of service and entry of appearance” and her receipt and use of the automobile, that plaintiff both acknowledges her signature on the deed and understood she was entering into a community property settlement. However, she urges this settlement is absolutely null because it was signed prior to the dissolution of the marriage and does not fall within the exceptions enunciated in LSA-C.C. art. 2446. We disagree.

A voluntary partition of community property prior to judicial separation or divorce is only relatively null. Fisher v. Fisher, 261 So.2d 85 (La.App., 3d Cir. 1972). Such an agreement can be expressly or impliedly ratified after the judicial separation or divorce. LSA-C.C. art. 1786; Fisher v. Fisher.

This agreement between defendant and plaintiff was reaffirmed when Mrs. Smith filed the waiver form in the Arkansas divorce suit. It was ratified by the express recognition of her ownership of the car in the Arkansas divorce judgment. See Valvoline Oil v. Krauss, 335 So.2d 64 (La.App., 3d Cir. 1976). She further ratified the agreement when she later disposed of the car. Sciortino v. Sciortino, 209 So.2d 355 (La.App., 4th Cir. 1968); Fisher v. Fisher, supra.

The evidence at trial establishes plaintiff has not yet received possession of personal and miscellaneous items to which she was entitled by the terms of the settlement, even though defendant offered these items to her on several occasions. The trial court judgment recognizes her ownership of these items.

Accordingly, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

Affirmed.

      . “Art. 2446. Safes between husband and wife

      “Art. 2446. A contract of sale, between husband and wife, can take place only in the three following cases:
      “1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      “2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      “3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      “Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”


text:
    COTTON STATES CHEMICAL CO., INC, Plaintiff, v. LARRISON ENTERPRISES, INC., Defendant-Third-Party Plaintiff-Plaintiff in Reconvention-Appellant, v. STAUFFER CHEMICAL CO., Third-Party Defendant-Defendant in Reconvention-Appellee.
    No. 13142.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      Voelker, Ragland, Brackin & Crigler by Frank Voelker, Jr., Lake Providence, for defendant-plaintiff in reconvention-third party plaintiff-appellant, Larrison Enterprises, Inc.
    Sanders, Downing, Kean & Cazedessus by William R. D’Armond, Baton Rouge, for third party defendant-defendant in recon-vention-appellee, Stauffer Chemical Co.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

A purchaser was sued on an open account by a seller. The purchaser then brought against the manufacturer of the product sold, third party and reconventional demands, founded upon the implied warranty imposed on the manufacturer by the Civil Code and the case law of Louisiana. These demands were dismissed below on an exception of one-year liberative prescription. The purchaser appeals. We affirm in part and reverse in part.

The purchaser here did not contract with the manufacturer, but purchased from the seller upon representations of a distributor (other than the manufacturer) of the product (a liquid herbicide). Application of the herbicide to the purchaser’s rice fields failed to produce the result allegedly represented and the purchaser claims damages for a diminished crop yield. The sale of the herbicide and the alleged failure of the result of its application occurred more than one year before this litigation arose.

Essentially, the purchaser seeks to place the manufacturer in the category of a seller who has practiced a fraud upon the buyer as contemplated by C.C. Art. 2547. This article reads in part:

“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud . .

The purchaser argues that the manufacturer should be placed in this category because he is legally a “bad faith seller,” conclusively presumed to know the vices of the thing he makes.

With the manufacturer in the category of the seller, the argument continues, the purchaser may assert the nullity of the contract induced by fraud within the five-year liberative prescriptive period provided by C.C. Art. 3542 and may also claim damages under C.C. Art. 2547. The purchaser’s astute and able counsel does not stop here, but further contends that the manufacturer “breached a special obligation contractually assumed . . . ” and “. . .in addition to having . . . the five year right to sue for rescission . . . [the purchaser] may very well have the ten year right to assert the breach of a special obligation.” (C.C. Art. 3544). Counsel’s effort to overcome the one-year prescriptive limitation is commendably ingenious, but in our opinion, paralogistic.

The rice farmer-purchaser is Larrison Enterprises, Inc. Seller is original plaintiff, Cotton States Chemical Company, Inc. Manufacturer is Stauffer Chemical Company. The herbicide is liquid Ordram. A distributor of liquid Ordram is Tide Products, Inc. Corporate designations are hereafter omitted.

The pertinent allegations of Larrison are these: Prior to June, 1973, Larrison made periodic applications during the crop year of solid Ordram in pellet form to control the growth of grass in its rice fields. On June 22, 1973, employees of the distributor represented to Larrison that liquid Ordram could be applied aerially and less frequently with similar results. Larrison purchased a quantity of liquid Ordram and used it in the suggested manner. Larrison later learned after the grass got out of control that much of liquid Ordram, when aerially sprayed, does not reach the water or soil where it is necessary for the herbicide to contact in sufficient concentration, the root growth of grass seedlings.

The diminished crop yield was caused by the representation that liquid Ordram applied aerially would successfully deter grass growth. The petition alleges in detail factual representations of employees of Tide Products to Larrison. The record (pleadings, interrogatories and answers) does not reflect any suggestion that Stauffer made any representations directly to Larrison. The petition does allege, but as a general conclusion in our opinion, that misrepresentations were made by representatives of Cotton States, Tide Products and Stauffer. Larrison’s factual allegations relate primarily to liquid Ordram being ineffective when aerially applied in the manner suggested by the distributor’s employees. Larrison’s allegations also establish it was a Cotton States representative who told Larrison that the aerial application of liquid Ordram was not effective.

Similar contentions were made in Steely v. Gerber Products Company, 299 So.2d 529 (La.App.4th Cir. 1974). Plaintiff there argued that the manufacturer of baby food, under its “obligation of warranty” of wholesomeness, was not subject to the one-, year prescriptive limitation for redhibition or tort, but to the ten-year prescription applicable to quasi-contract. C.C. Art. 2293. Plaintiff there relied on Le Blanc v. Louisiana Coca Cola Bottling Company, 221 La. 919, 60 So.2d 873, 875 (1952). The court answered:

“Le Blanc’s ‘warranty’ is not an obligation but a representation, since it is a warranty one ‘is entitled to rely on’, 60 So.2d at 875. Le Blanc does not support plaintiff’s quasi-contract theory.” 299 So.2d 530.

C.C. Art. 2529 reads in part, that “. . .a declaration [or representation] made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition . . . ” Every false representation does not fall into the category of fraud.

C.C. Art. 1847 tells us that fraud, when applied to contracts, is a material error, “. . . created or continued by artifice, with design to obtain some unjust advantages . . This is the fraud contemplated by C.C. Art. 2547 (“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess . . .”). The essence of fraud is an intent or design in the mind of the one practicing the artifice to defraud another or to gain some unjust advantage. Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953).

In the sale of any product, the implicit or explicit representation or declaration is made that the product possesses the requisite fitness or wholesomeness 'for the purpose it is marketed. An action for damages, whether arising from redhibitory vices (Art. 2534, Art. 2546), or arising from an offense or quasi-offense (Art. 3536), must be brought in one year. Stelly, supra, at page 532. Even in cases where the seller (and the manufacturer, by presumption) had knowledge of the redhibitory defect but failed to declare it, the consumer must bring his action within one year following his discovery of the defect. Rey v. Cuccia, 298 So.2d 840 (La.1974).

Walton v. Katz & Besthoff, Inc., 77 So.2d 563 (La.App.1955), presented express warranties in advertisements and in verbal declarations that the seller’s paint was 100 percent mildew resistant. The paint proved ineffective. The court applied the one-year prescriptive limitation to a purchaser’s claim for damages.

“Ordinarily, . . . the prescription applicable for damages caused by a breach of contract is not one year prescription, but is rather the ten year prescription . . . However, unlike damages for other contractual breaches, damages caused by breach of the warranty in a contract of sale are subject instead to the cited codal prescription of one year . . . [citations omitted].” Crowley Grain Drier, Inc. v. Fontenot, 132 So.2d 573 (La.App.3d Cir. 1961).

Under C.C. Art. 2503, the purchaser is subrogated to the seller’s rights and actions in warranty against the manufacturer. See Stelly, supra, at page 532; 14 Tulane L.R. 470; 23 Tulane L.R. 140. But as was said in Stelly (p. 532), and we paraphrase and interpolate,

Prior to Larrison’s purchase of the allegedly defective liquid Ordram, Stauffer had no obligation toward Larrison other than the general duty not to harm. No quasi-contractual obligation arose from Stauffer’s manufacturing liquid Ordram. The purchase by Larrison from Cotton States brought about certain contractual obligations including subrogation. The use of the product, assuming the alleged damage, brought an obligation upon Stauffer to repair the damage caused by Stauffer’s wrongful act. But both the latter delictual action and the former contractual action prescribe by the passage of more than one year.

Larrison cites Kearney v. Maloney, 296 So.2d 865 (La.App.4th Cir. 1973), as authority for the proposition that the purchaser may maintain an action in nullity against a non-seller manufacturer. In Kearney, Ma-loney sold a defective house to Kearney more than one year before the suit was instigated. The sale was financed by Dryades Savings & Loan Association and negotiations were eventually consummated by Smith, a realtor. Suit was brought against these three defendants. The court summarized its holding on original hearing:

“We held:
“1. Plaintiffs’ suit against Hardy Malo-ney sounding in redhibition had prescribed under LSA-C.C. art. 2534. Plaintiffs’ petition also set forth an action in nullity seeking avoidance of a contract because of error induced by fraud. The nullity action has not prescribed and this aspect of plaintiffs’ claim against the vendor Maloney is viable.” 296 So.2d 869.
On rehearing, the court said:
“Plaintiffs concede it is essential for us to find a contractual relationship between either or both of these defendants to defeat their respective pleas of prescription. As to the homestead, clearly there is none. No obligation devolves on the lender from any contract between it and the borrower to inspect the premises for soundness. Plaintiffs’ suit against the lender is ex delicto and on the face of the pleadings, it had prescribed.” 296 So.2d 869.
“It is clear from the quoted allegation on which the plaintiffs’ claim is based the damages allegedly due flow from a breach of a duty owed to the public at large. Until the buyer-seller agreement was signed by the purchaser, the realtor did not become his agent for any purpose. Accordingly the plea of prescription urged by Smith is valid.
“For the reasons assigned, the original decree of this court is recalled and it is now ordered, adjudged and decreed that the judgment of the trial court is affirmed insofar as it maintains the plea of prescription of Dryades Building and Loan Association and of James H. Smith and insofar as it dismisses plaintiffs’ suit against them. It is further ordered that the judgment maintaining the plea of prescription urged by defendant Hardy Maloney is reversed and this matter is remanded to the trial court for further proceedings . . . ” 296 So.2d 870.

Kearney is not authority for the proposition urged by Larrison.

The prayer of Larrison’s pleading seeks
(1) rejection of the open account demands against Larrison; (2) judgment against the third party defendants (Tide Products and Stauffer) in the event judgment is awarded against Larrison on the main demand; and (3) a money judgment for $133,000 (the amount Larrison itemized as its loss in its allegations). Larrison does not seek in its prayer or its allegations, the nullity of any contract against any adverse party.
C.C.P. Art. 1111 provides in part:
“The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.
“In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand

Larrison’s third party demand against Stauffer, founded upon Stauffer’s manufacturer’s warranty, is proper. Motors Securities Company v. Hines, 85 So.2d 321 (La.App.2d Cir. 1956).

In LeBlanc v. Big Jim’s, Inc., 252 So.2d 181 (La.App.3d Cir. 1971), a purchaser of a mobile home sued the seller in redhibition. The seller filed a third party demand against the manufacturer for indemnity, alleging redhibitory vices in the mobile home and the manufacturer’s express and implied warranty. The lower court dismissed the third party demand on an exception of one-year prescription. The appeals court reversed, stating:

“In the instant case [the seller] is seeking in indemnity from [the manufacturer]. It is not [suing] and cannot sue [the manufacturer] in redhibition for the reason that it has no longer title to the mobile home, having sold it to plaintiff in the main demand.. It cannot tender the property to [the manufacturer]. It is actually attempting to protect [the manufacturer] by defending the action. If [the seller] is successful in its defense, [the manufacturer] is absolved of liability. In Edward Levy Metals, Inc., supra, the court said that prescription does not run against a party seeking indemnification until it has been cast, and in that case as in the instant case, appellant has not been cast in judgment.
“We are of the opinion that in view of Edward Levy Metals, Inc., supra, and the cases cited therein, the ten year prescriptive period is applicable, and the plea of [one year] prescription is overruled.” 252 So.2d 183, 184.

In the instant case, Stauffer is not in a position where it can be said that it may be liable to Larrison for all or any part of the purchase price of the liquid Ordram (the second disjunctive category of C.C.P. 1111), but Stauffer is, under our law, a warrantor (the first category of C.C.P. 1111), and is subject to the third party demand.

“In view of the plain legislative intention, we must construe the Third-Party Practice Act, ... to permit the defendant herein to implead as third-party defendant the vendor of the automobile to him, who is both his warrantor (on the implied personal warranty in the sale of the automobile) and who is also liable over to the present defendant for any judgment recovered against the latter by the present plaintiff — that is, of course, if the allegations of his petition against the third-party defendant as to the defective nature of the automobile are true.” Automotive Finance Company v. Daigle, 80 So.2d 579, 582 (La.App.1st Cir. 1955).

The exception of one-year liberative prescription to Larrison’s reeonventional demand for its damage of loss as against Stauffer was correctly sustained below.

Larrison’s third party (indemnity) demand for judgment over and against Stauffer (its warrantor) has not prescribed. Judgment sustaining the exception of prescription and dismissing the third party (indemnity) demand against Stauffer is reversed. Judgment sustaining the exception of prescription and dismissing Larrison’s re-conventional demand for damages is affirmed.

Appellate costs are assessed one-half against each litigant.

      . This language comes from Davis v. Le Blanc, 149 So.2d 252, 255 (La.App.3d Cir. 1963). The defendant there was the seller, not the manufacturer. The complete sentence in which the quoted language is contained reads: “Essentially, plaintiffs were awarded judgment because of the defendant’s violation of certain special obligations assumed by him as a result of his entering into a contract of sale, although the defendant’s conduct may have violated also a general duty owed by him to the plaintiffs.”

      . See C.C.P. Art. 856. Mere conclusions of the pleader alleging fraud in general way, unaccompanied by factual allegations, do not satisfy the particularity requirement of this article. Rozas v. Evangeline Parish Police Jury, 214 So.2d 398 (La.App.3d Cir. 1968).


text:
    Charles T. PULLIG, Plaintiff-Appellant, v. SHREVEPORT PACKING COMPANY, INC. OF KANSAS, et al., Defendants-Appellees.
    No. 13148.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Bethard & Davis by J. Q. Davis, Coushat-ta, for plaintiff-appellant.

      Blanchard, Walker, O’Quin & Roberts by Joseph W. Milner, Shreveport, for defendant-appellee, John Morrell & Co.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, a truck driver employed by Shreveport Packing Company, Inc. of Kansas, filed suit seeking recovery in tort for damages allegedly arising out of a heart attack sustained by him while unloading a meat truck in Memphis at the direction of an employee of John Morrell & Company. Named as defendants were Shreveport Packing Company, its insurer, John Morrell & Company, and executive officers of the companies. Shreveport Packing and its insurer, who were paying workmen’s compensation benefits to plaintiff, were dismissed from the suit on an exception of no cause of action grounded on plaintiff’s exclusive remedy being workmen’s compensation benefits. Morrell obtained a dismissal from the suit by summary judgment based on a finding that Morrell was a statutory employer of plaintiff at the time of the heart attack, and that plaintiff’s sole remedy against Morrell was workmen’s compensation. Plaintiff appealed from the summary judgment in favor of Morrell.

In support of its motion for summary judgment, Morrell attached an affidavit by the president of Shreveport Packing which recited that at the time of the heart attack plaintiff was driving a Morrell truck under the terms of a “Driver’s Agreement” between Shreveport Packing and Morrell.

A copy of the “Driver’s Agreement” was also attached. The agreement states that Morrell conducts a private carriage operation for the purpose of delivering its own products to its customers or of picking up material belonging to it or others for delivery to its own plants or others, in vehicles owned or leased by Morrell. In the agreement, Shreveport Packing agreed to supply drivers to Morrell for use in the carriage operation, under Morrell’s direction as to routes, delivery, loading and unloading.

Plaintiff’s counter affidavit does not contradict the facts established by defendant’s affidavit and supporting documents. In pertinent part plaintiff’s affidavit merely recites that plaintiff was unaware of the arrangement between Shreveport Packing and Morrell and has been unable to determine the relationship between the companies because of defendant’s failure to answer interrogatories. Answers to the interrogatories, consistent with defendant’s affidavit and the attached agreement, were filed before summary judgment was rendered.

When an employee (plaintiff) of an independent contractor (Shreveport Packing) is injured by the negligence of the principal (Morrell) for whom the independent contractor is performing a service, the employee has no right to recover in tort from the principal if the work being performed is a necessary, essential, and integral part of the principal’s business, and the employee’s exclusive remedy, against either his own employer or the principal, is workmen’s compensation. LSA-R.S. 23:1061; LSA-R.S. 23:1032; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972); Foster v. Western Electric Company, 258 So.2d 153 (La.App.2d Cir. 1972).

The record in this case establishes that the work being carried out by plaintiff was a necessary, essential, and integral part of Morrell’s business and was being performed pursuant to a contract between plaintiff’s employer as contractor and Mor-rell as principal. Plaintiff’s exclusive remedy against Morrell is for workmen’s compensation benefits and he has no cause of action against Morrell in tort. Nothing in the record discloses a genuine issue as to any material fact pertinent to this holding.

Appellant contends the workmen’s compensation statute is not applicable because he was unaware of the relationship between Shreveport Packing and Morrell. Liability of the principal for workmen’s compensation benefits under LSA-R.S. 23:1061 and the exclusiveness of that liability under LSA-R.S. 23:1032 does not depend on the employee’s awareness or understanding of the relationship between the principal and the independent contractor, but on the existence in fact of such relationship.

Appellant also contends that summary judgment is inappropriate in this case because appellant has not had adequate opportunity to discover whether the relationship between Shreveport Packing and Mor-rell is in fact that of principal and independent contractor.

The affidavit and “Driver’s Agreement” attached to the motion for summary judgment is sufficient evidence that the relationship is that of principal and independent contractor. LSA-C.C.P. Art. 967 provides that when a motion for summary judgment is made and supported the adverse party “must set forth specific facts showing that there is a genuine issue for trial.” In the instant case, plaintiff’s affidavit stated that he was unable to determine the relationship between Shreveport Packing and Morrell because they had refused to answer interrogatories. As previously noted, answers to the interrogatories were filed prior to rendition of the summary judgment. Plaintiff does not allege or state any specific facts negating the relationship as set forth in the Driver’s Agreement. He neither states the specific relationship between Shreveport Packing and Morrell that he believes can be established, nor any legal argument which will support a finding that Morrell was not plaintiff’s statutory employer. Summary judgment was appropriate in this case.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Gordon L. CARSON, Plaintiff-Defendant in Rule-Appellee, v. Laura Gipson THOMAS et al., Plaintiffs in Rule-Appellants.
    No. 13151.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      Kidd, Katz & Strickler by George M. Strickler, Jr., Monroe, for plaintiffs in rule-appellants.
    Bethard & Davis by Henry W. Bethard III, Coushatta, for plaintiff-defendant in rule-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Appellants, alleging they were owners by inheritance of an undivided interest in property which was scheduled to be sold the next day at public auction to effect a partition by licitation, sought to stop the sale by obtaining a temporary restraining order, a preliminary injunction, and in due course a permanent injunction. The grounds for enjoining the sale were alleged defects in the partition proceedings. From judgment dissolving the previously issued restraining order, casting plaintiffs in rule for costs and attorney’s fees, and ordering the sheriff to proceed with the sale, plaintiffs in rule appeal. Defendant in rule filed a motion to dismiss the appeal which we sustain insofar as it relates to the preliminary injunction; that portion of the judgment casting plaintiffs in rule for costs and attorney’s fees is reversed.

A temporary restraining order, conditioned upon the furnishing of bond, was issued and filed on March 16, 1976. On the same day the bond was executed, notarized by appellants’ attorney, and filed. Respondent was ordered to show cause on March 26 why a preliminary injunction should not be issued. On the return date of the rule respondent filed a motion to dissolve the temporary restraining order and sought judgment against appellants for costs and attorney’s fees for the wrongful issuance of the restraining order. On the return date of this rule the following judgment was rendered:

“The rule to show cause herein filed by Lonnie Gipson, Malaria Gipson and E. B. Gipson, Jr., came regularly on for trial on March 26, 1976, the day for which it was fixed. The defendant in rule, Gordon L. Carson, was present in open court represented by counsel, Henry W. Bethard, III. Neither Movers nor their attorneys were present in court. The motion to dissolve the temporary restraining order filed by Gordon L. Carson was taken up and tried and submitted and the court being of the opinion that the law and the evidence was in favor thereof,
“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Gordon L. Carson and against Lonnie Gipson, Malaria Gipson and E. B. Gipson, Jr., in the sum of $300.00 as attorneys fees and the sum of $95.00 as additional costs of advertising caused by the temporary enjoining of the sale herein, which attorneys fees and additional costs may be collected out of the bond for the temporary restraining order as filed by plaintiffs in rule.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Sheriff of Bienville Parish, Louisiana, proceed to readvertise immediately for the sale of the property which had been originally advertised in this matter for sale on March 17, 1976.
“JUDGMENT RENDERED March 26, 1976.
“JUDGMENT READ AND SIGNED at Jonesboro, Louisiana, on April 8th, 1976.”

An order for a suspensive appeal was signed on May 4, and the appeal bond was filed the same day.

Louisiana Code of Civil Procedure Article 3612 provides there is no appeal from an order relating to a temporary restraining order, and:

* * % Sfc s{s sis
“An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. . . . ”

The judgment on the rule as it related to the temporary restraining order is therefore not before us.

As the judgment was rendered on the return day of the rule for a preliminary injunction, and since the judgment ordered the sheriff to proceed with the partition sale, we conclude it did relate to a preliminary injunction. However, plaintiffs in rule did not file their bond to perfect their appeal until May 4, which was more than fifteen days from the date of the judgment on April 8.

In opposition to the motion to dismiss appellants contend they were not notified of the return date of the rule. The law does not require the applicant to be notified. To the contrary, Louisiana Code of Civil Procedure Article 3602 requires notice to the adverse party. Additionally, as the temporary restraining order (reflecting the return date) was conditioned upon the furnishing of a bond; and as one of the appellants and their attorney signed this bond they knew, or should have known, of the return date. Moreover, the temporary restraining order was issued on March 16 and the applicants were bound to know that unless its duration was extended for good cause it was to be heard not later than March 26 or be dissolved. (La.C.C.P. Articles 3602, 3604 and 3606)

We find the decree for a money judgment for the wrongful issuance of the restraining order is a final judgment even though it was coupled with an interlocutory order. La.C.C.P. Article 3612 makes no reference to final judgments for damages and attorney’s fees. Kinchen v. Kinchen, 256 La. 28, 235 So.2d 81 (1970). The suspensive appeal being perfected within thirty days, this portion of the judgment is properly before us.

As plaintiffs in rule received no notice of the motion of defendant in rule to dissolve the restraining order, the award for costs and attorney’s fees was improper. La.C.C.P. Articles 3607 and 3608.

The appeal as it relates to a preliminary injunction is dismissed. The portion of the judgment casting plaintiffs in rule for attorney’s fees and costs is reversed and their demands are rejected without prejudice. The cost of this appeal is assessed equally against appellee and appellants.


text:
    Loy Faye Lewis LITTON, Plaintiff-Appellant and Appellee, v. Alton Lee LITTON, Defendant-Appellee and Appellant.
    No. 13155.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    Glen H. Smith, Shreveport, for plaintiff-appellant and appellee.
    Colvin, Hunter, Brown & Plummer by D. Scott Brown, Mansfield, for defendant-ap-pellee and appellant.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Loy Faye Lewis Litton seeks an award of $650 per month in permanent alimony and an increase from $300 to $650 for child support from her former husband, Alton Lee Litton. The judgment of divorce in April, 1973, made no provision for permanent alimony for Mrs. Litton, who received $38,000 under the terms of a community property settlement. The judgment awarded her the custody of the two minor children, along with the sum of $300 per month for their support.

Mrs. Litton contends that her financial circumstances have changed since the rendition of the divorce decree in that she has depleted most of the funds received by her under the property settlement in caring for herself and the minor children; that the cost of maintaining her two daughters has also increased; that her sole income from Social Security for herself and the children when added to the $300 now being paid by Mr. Litton is inadequate for this purpose.

The trial judge awarded Mrs. Litton $200 per month permanent alimony, and increased the child support to $380 per month. The court ordered the payment of alimony and increased child support to commence on the date of trial, June 29, 1976, rather than the date of judicial demand, February 10, 1975.

Mrs. Litton has appealed assigning as error the failure of the trial court to commence the alimony and increased child support on date of judicial demand, and that the amounts awarded are not commensurate with the needs shown and the ability of defendant to pay. Defendant also appealed, but has filed no brief in support thereof.

The issues relating to Mrs. Litton’s need for alimony and child support are purely factual and have been concisely and accurately stated by the trial judge’s written reasons as follows:

Mrs. Litton has suffered from multiple sclerosis for a long time. At the time of trial, June 29th, 1976, she was bedridden, completely incapacitated, and unable to even feed herself. Of course, she was not able to come to Court.
Mrs. Litton lives in the home with her Mother, Mrs. W. 0. Lewis. Mrs. Lewis is completely dedicated to her daughter and her grandchildren. She waits on her daughter hand and foot, seven days and seven nights a week, fifty-two weeks a year, year in and year out. Mrs. Lewis also attends to the two minor children, who likewise live in the home.
Mrs. Litton alleges a need for more money, and a change in the financial circumstances of her former husband.
Mr. Litton denies his ability to pay more, and answers that he cannot afford to pay the $300.00 per month he is already paying.
Mrs. Litton’s witnesses testified that Mrs. Litton now received $231.50 per month Social Security for herself, plus $220.20 per month Social Security for her two children. And, of course, the $300.00 per month from Mr. Litton. She has no other source of income, and, at the time of trial her bank account was reduced to $82.22. The $38,000.00 is gone, expended over a period of time, for various expenses.
In addition, she is in debt to the First National Bank in Mansfield for $300.00, and owes Selber Brothers, in Shreveport, about $200.00.
She gives her monthly expenses at $461.05 for herself, plus $889.89 for the two minor children, for a total alleged need of $1,350.94 per month.
This is an increase in expenses for the children of $97.56 per month over their alleged monthly expenses in the 1973 litigation.
It is to be noted that during this period of time her Social Security payments, plus those of her children, have increased from $375.00 per month (in 1973) to $451.70. This is an increase of $76.70 per month.
The Court takes notice that inflation over this period of time has diminished the purchasing power of the dollar considerably.
The Court will first direct its attention to the issue of child support.
As previously noted, the two minor children, Lisa Faye Litton, age 16 years, and Heather Lorraine Litton, age 7 years, are receiving a total of $520.20 per month, $220.20 from Social Security and $300.00 per month from Mr. Litton.
The evidence establishes that the needs of the two minor children, over and above the total of $520.20 they are now receiving require an additional $80.00 per month. Accordingly, child support for the two minor children should be increased from $300.00 per month to $380.00 per month.
Mrs. Litton’s sole source of income is the previously referred to $192.00 per month. Being without legal fault, she is entitled to permanent alimony. LSA-C.C. Art. 160.
Mrs. Litton alleges a need of $650.00 per month for herself, and in order to contribute to the support of her minor children. The Court considers the financial needs of the children adequately taken care of with the provisions above noted. We will therefore address ourselves to the needs of Mrs. Litton, only.
She has introduced evidence intended for the purpose of establishing a need for $461.05, for herself, as alleged.
In 1973, Social Security payments to Mrs. Litton were $192.00 per month. They are now $231.50 per month. This sum is not adequate. Her circumstances are necessitous, within the meaning and intendment of that term.
The Court is frank to state that this is a most difficult alimony problem. However, a careful review of the facts, the applicable law, and the jurisprudence leads the Court to the conclusion that permanent alimony for Mrs. Litton in the sum of $200.00 per month is appropriate, and that Mr. Litton is well able to pay this sum.

The amount awarded Mrs. Litton for permanent alimony, and the increase in support for the minor children are supported by the evidence and within the discretion accorded a trial judge in determining such matters.

Mr. Litton is a cattleman and farmer living at Evelyn in DeSoto Parish. He owns 397 acres of land and leases approximately 2,000 acres on which he grazes over 400 cattle. Although the trial judge found his answers to questions regarding his net income vague and uncertain, his net worth had increased from $194,803 in 1973, to $283,236 in 1975. He enjoyed a secured line of credit at the First National Bank of Shreveport up to $90,000. Although his income tax returns show no taxable income for the several years prior to trial, the totality of the evidence convinces us, as it did the trial judge, that Mr. Litton is financially able to pay these increases.

The remaining issue concerns whether the trial judge was in error in failing to make the payment of alimony and increased child support retroactive to the date of judicial demand. This court has previously considered this question, and found a trial judge has the discretion to commence payment of alimony on a subsequent date to judicial demand provided his action is fair and reasonable under the circumstances. Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2nd Cir. 1973). In this instance the trial judge commenced payment on the date of trial because:

In view of the long delay from the date of the filing of the petition for permanent alimony, and increased child support, until the date of trial, through no fault of either party, and the further fact that Mrs. Litton’s funds had not been so nearly depleted at that time as they were subsequently, and particularly at the time of the trial, the Court is going to direct that permanent alimony, and the increased child support, commence as of the date of the trial, i.e. June 29, 1976, .

There has been no abuse shown of this discretion in view of the reasons given by the trial court.

The judgment is affirmed at appellant’s costs.