author: ELLIS, Judge.

text:
    BAER et al. v. CHATELLIER et al.
    No. 2989.
    Court of Appeal of Louisiana. First Circuit.
    April 21, 1948.
    Rehearing Denied May 28, 1948.

      Lindsay W. McDougall, of Covington, and Benj. W. Miller, of Bogalusa, for appellants.
    Morgan & Pfeffer, of Covington, for appellees.
   ELLIS, Judge.

This suit arises as a result of an accident which the plaintiff Miller had with a “Chris-Craft” motor boat at or near the mouth of the Tangipahoa River on August 14th, 19-16. The plaintiff Baer was the owner of this “Chris-Craft” motor boat and he and Miller had arranged to go on a fishing trip with some of their friends on the date of the accident, but Baer was unable to make the trip so Miller, together with the friends and with Baer’s consent, took the boat and had almost arrived at the mouth of the Tangipahoa River when the boat either struck a submerged obstacle or screws holding the propellor stmt came loose, which resulted in tearing a hole in the botlon of the boat and from which the boat sank. The next day Miller explained the situation to Baer, the owner of the boat, and assumed the responsibility of getting the boat back to Madisonville, a distance of approximately IS miles, and also assumed the liability for repairing the damage occasioned by the accident and sinking of the boat.

Plaintiffs Miller and Baer alleged that the defendant Chatellier agreed to salvage the boat and did place the boat on the ways at his shipyard at Madisonville; that thereafter Miller entered into negotiations with Chatellier to repair all items of damage caused by the accident and sinking of the motor boat, and that Chatellier agreed to do this work for a sum not to exceed $50.00, exclusive of the necessary work on the motor and the purchase price of a new shaft. The petition further alleges that Baer entered into a contract with defendants to do certain repairs such as repainting, revarnishing of the cabin, new canvas, replacing two planks in the side of the boat and other repairs as shown by the petition upon which he, Baer, placed an absolute limitation of $250.00 to $275.00 and which Chatellier accepted and agreed to do; that when the bill was presented, Chatellier, contrary to his agreement, claimed that Miller owed him a balance of $332.01 for labor and material plus 15% to cover cost of taxes, Social Security, etc., and that Baer owed defendant Chatellier $607.14 balance for labor and material and plus 15% for insurance, taxes and profit. The plaintiffs made the further allegations:

“XXII. That the said Miller, being entirely ignorant of repairing boats, and being in the predicament above set out, was lulled into a feeling of security by the promises and representations of the said Chatellier, particularly as the said Cha-tellier pointed out a speed boat then operating in the river, which Chatellier said belonged to a “Nick” Skirmetta, which had been 'entirely overhauled 'by Chatellier at a cost of Four Hundred ($400.00) Dollars, particularly requesting observation thereof, and continually lulling petitioner Miller into a sense of security by his references to the quality of the work done on the boat shown together with econimums as to the quality of the work which went into it, together with the reasonable price charged.”
“XXIII. That thus being lulled into a sense of security, the said Miller then and there agreed with M. F. Chatellier to repair the damaged planks, to clean the boat, to have the engine overhauled and to replace the bent propellor shaft, particularly and expressly stating that he wished done only what was absolutely essential to repair the damage caused by the accident and nothing more, to which M. F. Chatellier agreed.”
“XXXVI. Your petitioners now charge that these defendants and each and every one of them, acting together and in concert, knowing that petitioners were completely ignorant of the repairs, etc., of boats and knowing the confidence imposed in them by the said petitioners conspired together with each other to pad the bills on the boat, to charge for work not performed, to charge for things not furnished and to violate the confidence imposed in them by rendering unconscionably huge bills and to cheat and defraud petitioners.”
“XXXVII. Your petitioners now show that in consequence of this said conspiracy the said boat was held at the ship yard of M. F. Chatellier for an undue length of time, that innumerable hours of work not performed were charged for, that great quantities of work not done were charged for, that supplies and materials not furnished were charged for and that exhor-bitant bills were rendered for a relatively small amount of work.”
“XXXVIII. That each and every one of the defendants herein knew or should have known that petitioners were interested only in a small job, at the most conservative of prices, for the reason that one was paying for an accident and the other did not wish improvements upon the boat as the same was then being offered for sale, all of which was well within the knowledge of these defendants and each of them.”
“XXXIX. That all of this was done by the defendants herein and each of them well knowing that Miller, being in his own mind, moially responsible to Baer for the results of the accident, would, as they thought, stand any amount of injustice and fleecing rather than lose the friendship and regard of Baer, and that therefore they took occasion to pad both bills as above set out.”
“XL. That on November 30th, 1946, the said M. F. Chatellier came to the office of the said Miller to demand that the work done on the boat be paid for, and exhibited to and delivered to the said Miller a bill for his, Miller’s, share of the said work, and a copy of a bill to Baer for his share, charging the said Miller for 294 hours of work, plus materials, and charging Baer for 610 hours of work for certain materials and extra charges.”
“XLIII. That at the same time, the said Chatellier, threatened Miller that if the bills were not immediately paid, that the boat would be libelled by the said Chatellier and his co-defendants herein through the United States Courts, this threat being used to force Miller to accede to these unconscionable demands of the defendants herein, the said Miller being in the position that he would have to placate the said Baer for the damages to his boat, and that thereby he, Miller, would be accede to the threats and demands of the defendants herein.”

The record shows that on November 30th, 1946, that the defendant Chatellier presented Miller with a bill for Baer and also a separate bill for Miller which bills are annexed to plaintiffs Miller’s and Baer’s petition and to defendant Chatel-licr’s answer and reconventional demand; that on the same day defendant Chatellier threatened to libel the boat and Miller contends that he felt it necessary to file the present suit in order to prevent such action. He has therefore filed this suit claiming that he, Miller, has overpaid his account by $77.61 and seeks to recover this amount from M. F. Chatellier and all the men that worked on the boat, and the plaintiff Baer alleges that he owes a balance of $170.00 and has deposited this amount in the registry of the Court and he seeks the recovery of the boat in question which was in the possession of the defendant, Chatellier. In addition, plaintiffs also sequestered the boat.

The defendant, M. F. Chatellier answered the suit denying that the contract was as alleged by Miller and Baer, but the other defendants who worked on the boat did not file any answer whatever to this suit.

This suit is properly between the plaintiffs Miller and Baer on one hand and M. F. Chatellier on the other, for the record discloses that they are the parties who made whatever contract was entered into relative to the repairs on the said boat.

Defendant Chatellier denies that he agreed to do the repairs on the boat occasioned by the sinking for a sum not to exceed $50.00 exclusive of the motor and shaft, and he also denies that he agreed to make other repairs such as repainting and replacing old canvas with new canvas, etc., on the boat for the plaintiff Baer for a maximum charge of $275.00, it being his contention that he undertook to do the necessary repairs on the boat on a cost plus basis, that is to say that the said Miller and Baer would meet the payroll expenses involved in such repairs at the end of each week and that at the end of the contract there would be a plus for him personally to take care of insurance, taxes, overhead and profit. Accordingly, he has filed a reconventional demand seeking the recovery of $382.01 less a credit of $50.00 paid on account, or a total of $332.01- against the plaintiff Miller, and the recovery of $790.56 less $105.00 paid on account of a balance due of $685.56 from the plaintiff Baer.

The case was duly tried and the lower court filed written reasons for judgment. There was judgment in favor of the defendant in suit and plaintiff in reconvention, Mose F. Chatellier, and against the plaintiff Michael S. Baer for the full sum of $592.67 together with legal interest from November 11, 1946, and against the plaintiff Benjamin W. Miller for the full sum of $286.64 together with legal interest from November 26, 1946, plaintiffs to pay all costs of suit.

Plaintiffs have appealed from the judgment and the defendant Mose F. Chatel-lier has answered the appeal asking that the judgment be increased so as to include plus 15% which was disallowed by the trial court as that Court held that the contract was not on a cost plus basis.

Miller, either the 15th or 16th of August, contacted the defendant M. F. Chatellier at Madisonville relative to raising the boat and towing it to the shipyard of the said Chatellier in order that it might be repaired. Chatellier agreed to raise the boat, not on a contract basis but stated that he would salvage the boat, giving as his reason that should he contract for this service that if he lost the boat on the way to Madisonville he would be liable for the boat. Miller testified that Chatellier agreed to charge $100.00 for this service but Chatellier denies that he agreed to this specific charge, stating that he only agreed to charge a fair price, giving as his reasons :

“We had to go nine miles down the lake, tow the boat to Madisonville and haul it on the ways, plus the expense of the other two trips.”

Miller paid him $150.00 for this service. On August 17th, 1946, plaintiff Miller went to Madisonville and entered into a discussion with Chatellier relative to repairing the damage to the boat which was done by the sinking. It is Miller’s contention that although Chatellier did not make a dollar and cent agreement on the work, he, however, agreed that it would not exceed $50.00, exclusive of the repair to the motor, which motor work cost $22.39, and the cost of a new shaft which cost $11.75, there being no dispute as to either of the latter two items.

Shortly thereafter, the owner of the boat, Baer, decided that he would like to sell the boat, and therefore, while the boat was on the ways, he would have some additional work done such as painting, etc. The contention of plaintiff Baer is that while Chatellier did not make a dollar and cent bid that he, Baer, placed a limitation on the cost of this work of the sum not to exceed $250.00 to $275.00, and that this limitation was accepted by Baer.

Both parties have agreed that the law applicable to this case is Article 2277 of the Revised Civil Code which reads as follows:

“2277 (2257) (N 1341, 1347) Agreement relative to movable property or for payment of money — Proof—All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborative circumstances.”

Plaintiffs herein are contending that they have “declared upon a contract, verbal in nature, divided into two parts, one as to Miller, one as to Baer, with the consideration of both contracts amounting to less than $500.00.”

According to the record, there were two contracts, one between Miller and Chatel-lier with regard to repairing all damages done by the accident and sinking of the boat, and one between the plaintiff Baer and Chatellier for certain other repairs to the boat. As it is necessary to render two separate and distinct judgments in this case, it will therefore be proper to consider each contract separately.

We will first take up the issues between plaintiff Miller and the defendant and plaintiff in reconvention, Chatellier, and we deem it advisable in this particular case to quote verbatim quite a bit of the testimony.

On Page 1 of the testimony, Miller testifies :

“A. * * * On Monday, August 19th, I went back and stopped for a few minutes and talked about the boat. We did not talk much about it then, and on Wednesday, August 21st, Mr. Ray Willis and I went down to go over the boat, Mr.'Willis acting for Mr. Baer, and Mr. Chatellier could not tell us very much. He said the engine would have to be inspected and maybe some new parts, that it would have to be washed out and lubricated and stated that he did not know whether he would be able to straighten the brace shaft which runs from the engine to the propellor, it would have to have a new one, and could not tell if the rib was broken. At that time I stressed to Mr. Chatellier the fact I wanted to get out as easy as I could and Mr. Willis said the boat was up being advertised for sale, that he did not want to spend any money on it. * * *
“A. * * * On Thursday I came back again and Mr. Chatellier was willing to talk business at that time, I was not. My daughter was being married on the 24th. The only time I was at the shipyard and they were working on that boat was that day and somebody was there with a box of Oxydol washing on the inside of the boat.
“Q. At the time of this conversation and after the boat was raised from the water and brought to Madisonville, was any specific work outlined as to what was to be done right then? A. Yes, sir. On Monday August 26th, Mr. Willis had in his possession a letter from Mr. Baer authorizing him to be his agent. What was to be done for my account was cleaning, two planks 3 to 4 feet long to be replaced on the boat, replace the propellor shaft, clean, oil and lubricate that motor and Mr. Chatellier said at that time that the heaviest item of cost of the whole business was going to be repairing that motor, and it was going to be not more than Fifty Dollars ($50.00) exclusive of that shaft and motor work. That was on the 26th.
“Q. What do you mean by exclusive of the shaft? A. He did not know what the shaft was going to cost. He said he could not work on the motor, that he would have to send it to somebody’s garage, the name sounded like Newman.
“Q. What was the price, if any, fixed as to the cost of what you were to have done? A. No definite dollar and cents figure was given. Mr. Chatellier refused to do that, giving as his reason that he might find something else. However, the outside figure was not to be over Fifty Dollars ($50.00) exclusive of the cost of that shaft, its purchase price and whát was to be done to the motor.”

Mr. Ray Willis on Page 8 testified as follows:

“A. * * * Later, I talked with Mr. Chatellier and he told me he was going to do Mr. Miller’s work on there and it should not exceed $50.00.”

And again on Page 9:

“Q. As to the extent of damages caused by that accident you are not in position to testify? A. Mr. Chatellier said it would not exceed $50.00 to put it in the condition it was before it sank.”

Thus, talcing the testimony of the plaintiffs and their witnesses, the defendant Chatellier did not agree to repair the damage to the boat caused by the accident for a sum not to exceed $50.00. It will be noted that Willis was with Miller on August 26, 1946 when he, Miller, testified that this agreement was made with Cha-tellier. However, Willis testified to the effect that Chatellier said “it should not exceed $50.00,” “it would not exceed $50.-00,” but no where does he testify that Cha-tellier agreed to repair this boat for a cost not to exceed $50.00 nor did Miller impose a $50.00 limit on Chatellier. Taking all the testimony in the case, there is no doubt that the conversations between the plaintiffs and Chatellier and Willis Chatellier took place as testified to, for there is certainly nothing in the record to indicate that Miller and Baer and the other witnesses offered by plaintiffs perjured themselves. Taking the testimony heretofore quoted as true, there is no doubt that Chatellier was evasive and misleading and it is therefore easy to understand the consternation of plaintiffs upon receiving the bills which are annexed to plaintiffs’ petition.

The defendant Chatellier denies that he ever entered into such a contract with Miller and, on the contrary, contends that the work was to be done on a cost-plus basis. The District Court flatly rejected Chatellier’s contention as to both contracts and we think correctly,so and will hereinafter discuss it more fully.

Taking all the testimony, we cannot say that Chatellier agreed to malee the repairs for Miller for the flat sum of $50.00 or for a sum not to exceed $50.00, and certainly Miller did not impose, and does not so contend, a limitation of $50.00 for the work to be done on his behalf.

As to Chatellier’s contention that the contract with Miller and the contract with Baer were each to be on a cost plus basis, we find no testimony except rather vague testimony by Chatellier that he ever attempted to present a bill to either Miller or Baer until November 30th, 1946, and yet he contends that under the cost plus contract the plaintiffs were to pay the labor bill each week. Miller and Baer flatly deny ever receiving any bill from Cha-tellier until the bill of November 30th, 1946 in which Miller is charged with 294 hours plus 15% on his contract and Baer is charged with 610 hours plus 15% on his contract. While Chatellier testifies that he attempted to present bills to Miller and Baer, it is certainly strange that if the contract was on a cost plus basis that he would not have stopped work until he could present Miller and Baer with their bills rather than to put in eight weeks work for Miller and thirteen weeks work, according to his statement, for the account of Baer. We also agree with the Trial Court’s additional reasons as given in his written opinion in holding that the work on the boat was not to be done by the defendants on a cost plus basis and'herewith quote those reasons:

“ * * * I am, however, of the opinion that the defendant did not agree to repair the boat on a cost plus basis. * * * The reason I do not think any cost phis contract was entered into is because the defendant simply stated that he entered into the contract with Mr. Baer and Mr. Miller on a cost plus basis. Mr. Miller testified that he never entered into any contract of that nature in his life, and it is difficult for me to believe that men with the business experience of Mr. Baer and Mr. Miller would enter into a contract on a cost plus basis if they did not know how much the plus was going to be. I note on defendant’s statement as rendered to Mr. Baer and Mr. Miller that he adds fifteen per cent (15%) above the cost, and, of course, the cost plus is explained in the itemized statement, but it is strange that he did not state in his answer that the cost was to be cost plus fifteen per cent (15%) nor did he testify that he told Mr. Miller or Mr. Baer that the contract would be cost plus fifteen per cent. The words cost plus do not have a definite meaning, for to my own personal knowledge many Government contracts were granted during the war for cost plus ten per cent (10%) * *

As Chatellier failed to sustain his contention that this contract was to be on a cost plus basis, the Court must, therefore, decide from the testimony what repairs were made, the number of hours .necessary to make such repairs and a fair charge therefor.

• Miller contends that all that had- to be done for his account was to remove two sections of bottom planking in order to repair a hole approximately 7" x 9" and refasten the strut; thoroughly clean the boat inside and out; replace tail shaft and open up the motor, clean, oil and lubricate same.

Chatellier testified that “the principal damages caused by the accident was the busting of a hole in the bottom of the boat, which resulted in having to replace four pieces of plank in the bottom; the strut was broken and bent, the wheel bent; the shaft twisted up; the inside framing to which the strut was fastened I found was rotten and broken; the keel was damaged to where it had to be taken out. That was caused by the accident.”

However, on Page 28, the defendant Chatellier testified that “ * * * On the hull, we found after the damaged planks were removed that Mr. Miller paid for, that the keel was rotten, broken, it was an old break, and we renewed that part of the keel from aft to the shaft lock.”

Therefore, it is impossible to know from the record whether Miller was charged with the labor and material for fixing the keel. He should not have been charged with repairing the keel which had been previously broken.

Furthermore, the witness August Heisser on Page 33 testified:

“Q. What repairs can you recall that were made on that boat? A. I can tell the things I did on it. The first thing I did was to take the rudder down and the wheel (propellor) so we could take the keel out; taken out one of the tanks, the pipe out, and one tank we had to throw away, it was no good and we had to make a new one; after we got it cleared up so we could get to work on the keel, we made a new piece of keel, out of eight or ten foot lumber; replaced some frames that were bent in there; put a block strut on, it was gone; the shaft was bent; and that hole in the boat was bigger than 6 x 7 or 8 inches.
“Q. In your opinion, what was its size? A. About two feet (2') long and eight inches (8") wide. The rudder stop was all bent up, we straightened that up; straightened the wheel up; got a new bronze shaft and put it in; put in new floor boards; under the bottom planks had to be taken out and we put four long and two short ones in, those planks are all put on with screws. There is quite a difference putting planks on with screws than with nails.”

The statements or bills presented to Miller for his account and the account of Baer neither one contained any material such as lumber for the purpose of making this new keel. However, the statement annexed to the defendant Chatellier's answer and petition in reconvention does show approximately sixty board measure H. T. Cypress lumber.

There is not a great deal of difference between the repairs which Miller claims were necessary on his behalf and the repairs Chatellier and the witness Heisser testify were necessary and made on behalf of Miller. Miller disputes the fact that the propellor or wheel was damaged, basing his testimony on the statement that he contends the plaintiff Chatellier had made to him, and Miller also testified that only two short blanks were necessary to repair the hole in the bottom of the boat, whereas Chatellier testified that he put in four short pieces.

On page 30 the defendant Chatellier under cross examination testified as follows:

“Q. Will you state again just what items of repairs were to be made on account of the damage caused by the sinking of this boat? A. We removed the shaft, strut, rudder, engine, sent it to the job, found several frames broken, part of which charge was made to Mr. Miller; the installing of the engine; cleaning up the boat; moving five or six barrels of sand and mud; replacing the cushions; washing and drying out; replacing the floor that had been washed away; we made new frames for one cushion which was entirely lost, so he could have a cushion made to it. Possibly a half dozen little items came up in the course of that time.
"Q. How long did it take to do that? A. The time sheet will show you.
“Q. Those items of repair which you have mentioned and you state your payroll commenced August 17th and ended November ISth; did it take that length of time to make the repairs mentioned? A. That time is in straight here. You will find two hours one week, maybe more the next. The men had no definite assurance they would ever get their money.”

Therefore, Miller and Chatellier and the defendant’s witness, Heisser, all agree that a strut needed refastening or repairing; that the boat was to be thoroughly cleaned inside and out; that a new tail shaft should be purchased and installed; that the hole in the bottom of the boat should be repaired and that the motor should be put back in condition; the tail shaft and motor charge not being in dispute. In addition to the above, according to the testimony of August Heisser defendant Chatellier straightened up the rudder stop, straightened the propellor and put in new floor boards, how many of the latter or whether for Miller’s account the record fails to disclose. The testimony fails to reveal what part of this work the various laborers were doing on the various hours and items of repair charged to Miller. In other words, the testimony does not show the exact number of hours it took to repair each separate item of damages. Mr. Reuben Chatellier, witness for defendant, testified that he spent seven hours work on the shaft and the witness August Heisser testified that he straightened the propellor or wheel of this boat and that that took four or five hours. Those are the only items that we find any testimony in the record as to the exact or approximate amount of time used to repair the various items of damage.

The plaintiff offered the testimony of Joe Innerarity who qualified as an expert and was appointed as such by the Court as to the number of hours the repairs for Miller’s account should have taken. In-nerarity testified that to renew two sections of the bottom planking which resulted from the hole having been knocked in the bottom of the boat and to refasten the strut should require about 16 hours. As Chatellier says that he put in four pieces of plank rather than two, it seems reasonable that the defendant should have replaced at least one piece of plank per day which on this item would give him 32 hours rather than 16. He further testified that to thoroughly clean the boat inside and out should require about 24 hours. This certainly appears reasonable, for more water would certainly not harm the boat after it had been sunk and as it had a hole in the bottom, a strong hose would wash the sand and most of the dirt out of the boat. In-nerarity testified that in replacing the tail shaft the labor should be about two hours for machining and two hours for installation. The testimony above quoted showed it took seven hours, therefore we will substitute seven hours for this item rather than four. He also testified it would take 12 hours to oil and lubricate the motor.

Also we have in the record five hours to straighten the propellor which we will allow. We believe that the extra hours which we have added to the estimate of the expert witness appointed by the Court are sufficient to cover the straightening of the propellor stop that was bent and in any event, if not, the defendant and plaintiff in-reconvention should have proven exactly the number of hours required to straighten this propellor stop.

Taking the estimate as testified to by the expert witness appointed by the Court with the additions which the Court has made from the testimony, it shows a total of eighty (80) hours, which we believe was sufficient to repair all damages caused by the accident and sinking of the boat and for which Miller is responsible.

In order to arrive at, an hourly rate, we believe that by adding the $1.50 per hour, the highest rate paid, and the low of 800 and dividing by two would give a fair average of $1.15 per hour. Miller also owed $22.39 for the motor work and $11.75 for the shaft which, although not in dispute, must be added to his bill, all of which totals $126.14. Miller is entitled to a credit of $50.00 previously paid to the defendant Chatellier, leaving a total due by Miller of $76.14.

We feel that in a case of this kind, the testimony of the defendant and plaintiff in reconvention Chatellier should be carefully scrutinized for the reason that the plaintiffs would be unable ordinarily to produce any evidence whatever touching upon the number of workmen employed by the defendant and the number of hours actually required to repair such damage. In this case, defendant and plaintiff in reconvention has absolutely failed to prove that the contract with either Miller or Baer was on a cost plus basis as alleged by him and has failed to offer testimony as to the number of hours actually spent in repairing each separate item of damage for Miller and has therefore failed to bear the burden of proof imposed upon him by law.

As to plaintiff Baer’s contract with Chatellier which plaintiff contends was not to exceed $275.00 for repairs to the boat on his behalf, there is no doubt that such a limit was imposed and that Chatellier agreed to this maximum cost. Plaintiffs Miller and Baer both testified to that limitation as well as all other witnesses for the plaintiff except Innerarity, the expert appointed by the Court. The testimony of Chatellier absolutely establishes the fact that Baer gave him a list of repairs to be made for his account with the stipulation that he would not pay for such repairs more than $250.00 to $275.00.

The testimony of Chatellier on Pag'es 27 and 28 of the transcript is as follows:

“Q. Did Mr. Baer call at your shipyard? A. Mr. Baer came only one time in my yard. That was the latter part of October and he came with his wife and daughter. I did not think anybody else was along.
“Q. What was your conversation with Mr. Baer regarding the prospective repairs to be made on the boat? A. I called Mr. Baer to come down, as I did not want anybody else to authorize the work. He came down. Mr. Miller and Mr. Willis authorized this work, but limited it to $250.00 or $275.00. I showed Mr. Baer the other things to be done. One gas tank was entirely gone and there was a multitude o.f other things. Mr. Baer wanted his boat refinishcd, fixed in fine shape. His wife called his attention to a boat there, said ‘Look at that beautiful boat there. Fix it like that one.’ She had reference to Mr. Hoffman’s boat. She called his attention and mine to the glasses. She was assured the glasses would be ground. It was necessary to buy special slides, there is a bill here for it, to remodel and reinstall the entire inside of this boat.
“Q. Was there any understanding you had with Mr. Baer to the effect that the maximum price which he was to pay for repairs would be the sum total of $250.00? A. No, sir.
“Q. Did Mr. Baer direct you to go on and make the repairs? A. He did.”

This conversation which Chatellier testified to did not take place until “the latter part of October” and by referring to the bill rendered to Baer and annexed to plaintiff’s petition, Chatellier at that time had already worked approximately nine weeks on the boat for Baer’s account and his bill for those nine weeks as shown by the statement totalled approximately $492.-90. Chatellier contended that at this meeting in the latter part of October that the price of $250.00 to $275.00 “passed by the wayside.” No one was present other than Baer and his wife. Baer, in effect, denies that he authorized any additional repairs or changed the limitation of from $250.00 to $275.00. Mrs. Baer, who was present at the time referred to by Chatellier, was unable to testify but it was admitted she would corroborate her husband’s testimony. There is nothing in the testimony to corroborate Chatellier in his contention that Baer’s original contract “passed by the wayside.”

There is nothing wrong with Mrs. Morrison’s testimony in any respect. She was a witness offered by plaintiff. The defendant is depending on certain portions of it and denying others. There is no reason to look upon her as such an interested witness as to consciously or unconsciously cause her to color her testimony. A portion of her testimony on page 15 is as follows:

“Q. Do you know anything about a conversation with Mr. Chatellier about the price Mr. Baer was willing to pay? A. Yes, Mr. Baer told me to wait a few days and then call up Mr. Chatellier to see how the boat was coming along. So I had one of those copies and from time to time I would take the copy and call up to see how that particular part of the boat was coming on. I talked with Mr. Chatellier several times and every time Mr. Baer had me tell Mr. Chatellier not to go over $250.00.
“Q. You did communicate that message? A. Oh, yes, positively. Later on Mr. Chatellier at one time told me of the canvas and material he had bought for Mr. Baer’s job and that it was going to cost plenty. That it all he said. * * * ”

Defendant contends that that portion of Mrs. Morrison’s testimony in which she said that “later on Mr. Chatellier at one time told me of the canvas and material he had bought for Mr. Baer’s job and that it was going to cost plenty” is conclusive proof that Chatellier had not accepted a definite or maximum price.

There is a list of material annexed to the bill presented to Miller for Baer and the total of all materials furnished and installed for Baer amounts to only $78.42. In comparison, the labor charge as shown by said statement to place this small amount of material on the boat amounts to $619.25. The canvas shown thereon amounts to only $13.59. Chatellier also contends that the work for Baer required 610 hours, and we note that the expert witness Innerarity testified that he had actually built a boat larger than the boat involved in this case from the keel up in approximately 500 hours. It is not reasonable that such a small amount of canvas and other material would cause this job to “cost plenty,” that is, $619.25 or require 610 hours.

As the defendant and plaintiff in reconvention Chatellier admitted that the plaintiff Baer had placed a limit of $275.00 on the repairs to be done on his behalf, and as the defendant Chatellier has failed to prove that this limitation was removed, we are therefore of the opinion that the plaintiff Baer is indebted to the defendant Chatellier in the sum of $170.00 which amount Baer deposited in the registry of the Court. Chatellier has failed to prove his claim against Baer as required by Article 2277 of the Civil Code.

It is ordered that the judgment of the Lower Court be amended and re-cast as follows:

That there be judgment in favor of Michael S. Baer decreeing that the amount of $170.00 deposited in the registry of the Court by him is the correct amount due by him and that the said amount be paid to M. F. Chatellier to whom it is due and that the boat sequestered be returned to the owner Baer.

It is further ordered that there be judgment in favor of M. F. Chatellier and against the plaintiff, Benjamin W-. Miller, in the full sum of $76.14 with legal interest from judicial demand until paid.

It is further ordered that all costs of Court in both Courts be divided equally between M. F. Chatellier and Benjamin W. Miller.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    ACHORD v. HOLMES.
    No. 2998.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.

      John Fred Odom and Homer J. Belanger, both of Baton Rouge,' for appellant.
    iCangelosi, Hayes & Lane, of Baton Rouge, for appellee,
   LE BLANC, Judge.

Plaintiff appeals from a judgment of the district court which sustained a plea of prescription and dismissed his suit.

The cause of action is based on a tort which is alleged to have been committed on June 30, 1945. In the petition it is alleged that on that day, at about twelve o’clock, Chester A. Achord, Jr., was driving a 1941 Nash Sedan automobile, which belonged to the plaintiff, when it was struck with great force and severely damaged by a motorcycle which was being operated by Carl Holmes, the unemancipated minor son of the defendant W. M. Holmes, the collision having taken place at the junction of Scenic Highway and Wyandotte Street, north of the city limits of the city of Baton Rouge. The demand is for the sum of $400, the damage done to the Nash automobile.

The present suit was filed on July 30, 1947 and domiciliary service made on the defendant on the same day. It would appear therefore that it was more than two years since the date of the accident when this suit was filed and service of citation made, but in order to get around the delay and save his demand from the effect of the one year prescriptive period, plaintiff alleges that at the time the accident was investigated, defendant’s minor son gave his name to the representative of the State Police as “Carl Thomas” of 1127 St. Joseph St., Baton Rouge, Louisiana, but ati that time he failed to give the name of his father. It might be added here that plaintiff does not allege that the young man was asked who his father was.

Plaintiff then sets out that several directories to which he had access showed that the premises at which the address was given, were occupied by one J. M. Holmes and accordingly on July 25, 1945, a letter was addressed on his behalf to J. M. Holmes residing at that address making demand on him for damages sustained in the collision. Fie alleges that no reply ever was made to that letter and on June 27, 1946, acting on the belief that John M. Holmes of 1127 St. Joseph St., Baton Rouge, Louisiana, was the father of the minor Carl Holmes, he caused a suit to be filed against the said John M. Holmes being suit No. 24981 of the docket of the district court of East Baton Rouge Parish. , :

He then alleges, upon information and belief, that the defendant herein, W. M. Piolin-es, was residing at the address 1127 St. Joseph Street for the reason that the return to the citation in the former suit showed that domiciliary service had been made at that same address by handing the citation to Mrs. M. L. Holmes. He avers further on information and belief that the said Mrs. M. L. Holmes to whom the petition and citation in the former suit was given, is the mother of the defendant, W. M. Holmes; that the defendant herein, as well as the minor Carl Holmes, all reside together at that address; that W. M. Holmes had notice of the filing of the suit on June 28, 1946 and therefore the prescription applicable in such cases was interrupted by the filing of that suit.

The trial judge did not assign written reasons for the judgment rendered by him.

Citation to a defendant, which is the judicial notice to him to appear and answer the demand that is being made against him, is the only form of notice which will interrupt prescription. Civil Code, Art. 3518. Actual notice will not suffice, Agnelly v. Goodheit, 6 La.App. 121. In this case plaintiff’s allegation that the defendant, W. M. Holmes, had notice of the filing of the suit on June 28, 1946, is more or less an assumption on his part arising from the fact that he, John M. Holmes, the party made defendant in the first suit filed and Mrs. M. L, Holmes, the party to whom the citation in that suit was handed, were all members of the same household. Conceding however that the matter of the filing of that suit was brought to his attention, it only gave him actual notice and that, we have seen, is not sufficient. The judicial notice required had been given to John M. Holmes, an entirely different person, and it could not serve to interrupt prescription against him. With respect to the facts as represented by the plaintiff’s petition the case is very similar to that of Agnelly v. Goodheit, supra, the ruling in which however, counsel contend cannot stand in view of recent decisions of the Supreme Court.

We cannot agree with counsel on this point. The cases he cites were suits directed against corporations and in each, because of the peculiar facts existing, it was held that the citation, as addressed, was sufficient to constitute notice to the real defendant against whom demand was being made. For instance, in Jackson v. American Employers’ Insurance Company, 202 La. 23, 11 So.2d 225, it was shown that the real defendant insurance corporation was one of a group of insurance companies doing business under a group title, the group maintained only one claim office in the city of New Orleans from which all correspondence emanated and because of the method under which they conducted the business, the attorney representing the plaintiff in the suit had been led to believe that his client’s claim had been made on the company which had issued the policy of insurance Because of these facts it was held that the original suit, though brought against the wrong insurance company, had the effect of interrupting prescription.

Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209, is a case in which the Supreme Court reversed a judgment of this court which had sustained a plea of prescription in a workmen’s compensation suit. The name of the corporation the suit was filed against bore no similarity to that of the corporation by which the plaintiff was employed and which was the real defendant to be sued. From the facts adduced it developed that both corporations operated under the same management, used a common _ office and in many instances employed the same personnel and the court held that by service in the original suit, made on the general manager, the later was notified of the claim and that it was being asserted by the plaintiff.

Bowerman v. Pacific Mutual Ins. Co., La. Sup., 34 So.2d 53, 55, is the latest decision on the point involved. It also is a workmen’s compensation suit which was originally directed against the Pacific Mutual Insurance Company, which it developed from certain correspondence, after service had been made through the office of the Secretary of State, was not the compensation insurance carrier of the corporation for which the alleged injured employee was working. Upon ascertaining that it was the Pacific Employers’ Insurance Company that carried the insurance, plaintiff sought, by supplemental and amended petition, to bring in that corporation as defendant in the suit. This however, was not done until more than a year after the date of plaintiff’s alleged injury. Notwithstanding the fact that this court had overruled the plea of prescription that had been urged on the ground that by the terms of Act No. 39 of 1932, the filing of the suit in a court of competent jurisdiction, with a cause of action set out, had had the effect of interrupting prescription, the Supreme Court held that that was not so for the reason that the true insurer had not been named as the defendant in the original petition. The court stated that “since the prescriptive period had expired without the filing of a suit against the true insurer, and since there was no proof that the insurer had notice or actual knowledge that plaintiff was asserting his claim by instituting suit within the prescriptive period, the plea of prescription is valid.”

For that same reason we hold in the instant case that as two years had passed since the commission of the tort complained of without the filing of a suit against the real defendant, the father of the minor who is alleged to have committed the tort, and since we know that he never had judicial notice of the demand that is now being made against him, and there is at most only an assumption that he had actual notice, the plea of prescription is valid and it was properly sustained by the trial judge.

Judgment affirmed at the costs of the plaintiff, appellant herein.

ELLIS, J., absent.


text:
    JONES v. MISCAR et al.
    No. 2980.
    Court of Appeal of Louisiana. First Circuit.
    April 21, 1948.
    Durrett & Hardin, of Baton Rouge, for appellants.
    Ben N. Tucker, of Hammond, for ap-pellee.
   ELLIS, Judge.

This suit was filed on behalf of the plaintiff, Elvira C. Jones, to recover damages for injuries she alleged she received as a result of an accident which occurred either on August 31, 1946 or September 1, 1946, approximately one mile west of the Town of Denham Springs, Louisiana. Plaintiff alleges that on the first day of September, 1946, at about the hour of 12 noon, she was driving a Chevrolet Coupe automobile owned by a Mrs. J. A. Tinsley, the latter being a passenger in the car at the time, in an easterly direction on U. S. Highway 190 toward the town of Denham Springs; that she was proceeding in a careful and prudent manner and operating the coupe on its right-hand side of south side of the concrete pavement; that defendant, Leo Miscar, was operating and driving a 1946 Model International Truck in an easterly direction, or the same direction your petitioner was traveling, on U. S. Highway 190, and that the defendant attempted to 'pass the automobile being driven by the plaintiff on the left-hand side or north portion of the concrete pavement, and that without warning, the defendant drove his truck back toward the south portion of the concrete pavement without allowing sufficient time for his truck to clear the automobile driven by petitioner and in such manner as to strike the automobile driven by plaintiff on its left front side forcing petitioner off the road and into the ditch.

That as a result of the automobile being forced off the road by defendant’s truck, plaintiff sustained severe injuries consisting of a fracture of the two bones of her right forearm just above the wrist; a laceration in her forehead; a fracture of the ninth right rib, and general bodily contusions and severe nervous shock. That as a result of the accident and injuries plaintiff was temporarily incapacitated from performing her occupation for a period of three months and was required to spend the sum of $239.00 for medical assistance and nursing care; and that the defendant had an insurance policy with the Insurers Indemnity and Insurance Company and it is therefore made a party defendant.

The plaintiff itemized her damages as follows:

1. Loss of Earnings' $ 168.00
2. Medical expenses and nursing care 239.00
3. Shock to petitioner’s nervous system 2,000.00
4. Physical and mental pain and suffering resulting from said injuries 3,000.00
5. Impairment, permanent loss of function in petitioner’s right arm. 2,500.00
6. Permanent disfiguring scar on petitioner’s forehead, eyelid, nose and cheek 1,500.00

Hence, plaintiff prays for judgment against the defendant in the full sum and amount of $9407.00 with legal interest from the date of judicial demand until paid and for all costs.

Defendant admits the accident and denies any negligence but charges plaintiff with contributory negligence in Article 19 of its answer, and therefore prays that the demands of plaintiff be rejected at her cost.

The case was duly tried and the District Court rendered judgment in favor of the plaintiff and against the defendants, Leo Miscar and Insurers Indemnity and Insurance Company, in solido, in the full sum of $3,407.00 with 5% per annum interest from date of judicial demand until paid, defendants to pay all costs of suit. The defendants have appealed from this judgment of the District Court and the plaintiff has answered the appeal asking that the judgment be increased to $5,407.00.

The testimony in this case discloses that on the 31st of August, 1946, or first of September, 1946, the plaintiff was driving a Chevrolet Coupe automobile owned by Mrs. J. A. Tinsley, who was also a passenger in the car, in an easterly direction toward the town of Denham Springs on U. S. Highway 190; that when she had reached the distance of approximately one-half mile from Denham Springs, the defendant, Leo Miscar, who was driving an International Truck, attempted to pass her automobile, which necessitated the defendant’s pulling into the northerly or left-hand lane of traffic; that Miscar steered his-truck back into the southerly or right-hand lane of traffic before the rear end of his truck had completely cleared the front end of the Chevrolet driven by plaintiff.

There is no doubt that the rear portion of defendant’s truck struck the front left-hand fender of the automobile driven by the plaintiff. The blow caused the Chevrolet automobile driven by the plaintiff to get out of control and veer sharply to its right, where it ran into an embankment of the ditch on the south and right-hand side of U. S. Highway 190. In addition to the testimony of the plaintiff that this is actually what happened, we also have the testimony of the defendant, Leo Miscar, that he attempted to pass the Chevrolet Coupe and that after the front end of his truck had passed the coupe, he felt a bump and, when he looked back, the Chevrolet coupe was leaving the highway and ran into the embankment of the ditch. The explanation given by the defendant, Leo Miscar, in his testimony of the accident was that about the time “1 got even with this car there was a curve about 400 yards down the road and another car come around this curve, and naturally it was my duty to pull over into the right hand side.”

The defendant further testifies that there was no immediate danger of the on-coming car colliding with him.

There is also in the record the testimony of Boyd Westbrook, who was the driver of the on-coming car, to the effect that after he was going around the curve, he saw about 100 yards in front of him a large truck headed east which was on the wrong side of the road for the direction in which it was traveling. However, as this truck pulled over into the south lane of traffic into its proper lane of traffic on the south side of the highway, that he then noticed a Chevrolet coupe, also headed east, and that just as he saw the Chevrolet coupe it swerved to the right and went into the ■ditch.

The witness Clyde Hood who was operating a tractor in a field approximately 100 yards from the highway testified that he heard the noise of the truck and car hitting together and that caused him to look toward the highway and he could see the truck and about half of the car.

The testimony convinces the Court that the defendant drove his truck back into the right-hand or south lane of traffic before he had completely cleared the Chevrolet coupe, and that, as a result, the rear end of the truck struck the front left fender of the coupe which the plaintiff was driving, and by reason of this blow, the plaintiff lost control of the Chevrolet which caused it to veer off the road and on into the ditch. There was no contributory negligence on the part of the plaintiff shown by the testimony in this case.

In the case of Ravare v. McCormick & Company, La.App., 166 So. 183, 185, the Court held:

"The court finds the 'Law of the Road’ to be that one who attempts to pass a vehicle on the road is called upon to exercise an extraordinary degree of care, and does the passing at his risk. Louisiana Highway Regulatory Act No. 21 of 1932, § 3, Rule 7; Stevens v. Dean, 6 La.App. 537; Uzzo v. Torres, 3 La.App. 292; Jeter v. Caddo Transfer & Warehouse Co., 1 La. App. 35.”

Also in Cooper v. Garrett, La.App., 6 So.2d 209, 213;

“Rule 7 of Section 3 of Act No. 286 of 1938 requires the driver of a vehicle overtaking another vehicle going in the same direction to pass such overtaken vehicle at a safe distance to the left and not drive back to the right side of the road until safely clear of the overtaken vehicle. The driver 'of a vehicle desiring to pass another vehicle in front of him must also see that the way is clear on the left side of the road for him to pass safely, without interfering with the vehicle ahead, so long as it is using the road in a lawful manner. Ardoin v. Robinson et al„ La.App., 176 So. 228; Greer et ux. v. Ware, La. App., 187 So. 842.”

The facts prove that the defendant did not exercise an extraordinary degree of care in passing the plaintiff and, in fact, that defendant violated the law as above quoted. The liability of the defendant Leo Miscar is clearly established by the facts in this case and the law. .

The record reveals that the plaintiff was in the hospital four days and was incapacitated from doing any work for approximately three months, however, she had not been employed since approximately November 1945 until the date of the accident.

It is admitted that her nursing and medical bills were proven to be $239,00. According to the record, she suffered a laceration on the forehead which has resulted in a scar approximately one inch long; a fracture of the right forearm at the wrist; a fracture of a rib on the right side of the chest. Plaintiff has a 10% disability in the use of the wrist and forearm as a result of the fracture. According to Dr. Charles McVea her injuries do not interfere with her work to any material degree as librarian in the Town of Denham Springs. She obtained this employment after the accident and was so employed at the time of the trial.

The plaintiff is claiming $168.00 for loss of earnings which she alleges she would have made from a kindergarten which she intended to open. She had bought some supplies which, after the accident, she sold to her sister for about $10.00, approximately the original cost, according to her testimony. While the Judge of the District Court gave no written reasons, it is evident from the amount of the judgment rendered that he allowed this item of $168.00. The judgment was for $3407.00 and evidently included in this amount must, of course, be the sum of $239.00, the proven medical and nursing bills, which, deducted from the total leaves $3168.00. Therefore, the amount of $168.00 was evidently allowed by the District Court. Clearly, this claim for $168.00 under the facts is too speculative in nature to be allowed.

“(2) Medical Expenses and Nursing Care —$239.00” was proven and is admitted to have been proven by counsel for defendants and should be allowed.

We are of the opinion that $1500.00 is sufficient damages, under the facts, for the injury to her arm and the small scar.

The plaintiff evidently suffered as a result of her injuries and we believe that she should be awarded $500.00 for such.

It is therefore ordered that the judgment of the District Court be amended by reducing the judgment in favor of the plaintiff and against the defendant to the sum of $2239.00 with legal interest from judicial demand, and it is ordered that the judgment of the District Court as amended be affirmed, defendant to pay all costs.


author: JANVIER, Judge.

text:
    D. H. HOLMES CO., Limited, v. RENA.
    No. 18698.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    Rehearing Denied June 7, 1948.
    Chaffe, McCall, Toler & Phillips and Harry McCall, Jr., all of New Orleans, for plaintiff-appellant.

      Weiss & Weiss, of New Orleans, for defendant-appellee.
   JANVIER, Judge.

Tfae question before us is well stated in the opening paragraph of the brief of counsel for plaintiff-appellant:

“The issue presented by this appeal is whether a minor who has purchased and received clothing and accessories may, without returning them, even after her emancipation by marriage several months later, escape liability for payment of their price on the ground of her general contractual incapacity at the time the purchases were made.”

D. H. Holmes Co., Ltd., is a Louisiana corporation which operates a large department store in New Orleans. Mrs. Bettie J. Rena, now the wife of Charles Salles, during the months of October and November, 1944, bought, on open account, from the plaintiff corporation merchandise priced at $999.34, consisting of $451.79 for dresses, $355.96 for accessories (such as neckwear, underclothing, cosmetics, gloves, etc.), $44.-90 for jewelry, $8.61 for lunches and candy, $68.20 for items such as stationery, and $59.88 for men’s clothing. She was only seventeen years of age at the time and had not been emancipated. She was married about eight months later and thus became emancipated by marriage. Her father is living, but we gather from the record that while he lives out of the City of New Orleans, she came to the city to earn her living and now lives here.

When the defendant failed to pay for the merchandise which she had purchased, plaintiff corporation filed this suit alleging that the defendant is “a person of the full age of majority * *

Based on the fact that, at the time the purchases were made, she was a minor and had not been emancipated, and that even when the suit was filed, although it was alleged that she was “a person of the full age of majority,” she had not actually arrived at the age of majority, being only emancipated as the result of her marriage, defendant filed an exception of no right of action. In the District Court this exception was referred to the merits, and defendant then filed answer in which she admitted having made the purchases and in which she also denied liability, specially pleading “her minority and legal incapacity.” In her answer she also averred that the purchases were made “in defendant’s maiden name” and when she was “an unmarried, unemancipated minor.”

After a trial on the merits, there was judgment in favor of defendant. D. H. Holmes Co., Inc., has appealed.

A determination of the legal issues which are presented requires an understanding of certain facts which were shown by the evidence, so that we have concluded that it is best to do as the District Judge did, refer the exception of no right of action to the merits, and take into consideration all of the facts which were shown by the evidence. Most of those facts we have already stated.

Plaintiff corporation asserts that for three reasons the defendant, although a minor seventeen years of age at the time the purchases were made, may now be held liable. We quote those reasons from the brief filed on behalf of plaintiff-appellant:

“1. Appellee is liable for the price of her purchases because they were ‘necessaries’.
“2. In the event that this court should hold that the contract between appellant and appellee was not an enforceable one for necessaries, appellee has ratified it by her failure, subsequent to her emancipation by marriage some eight months later, to return the articles purchased by her during her minority.
“3. Under the provisions of Article 1793 of the Civil Code, appellee is obliged to restore the articles purchased by her, and in default of doing so, is liable for their value.”

Defendant relies principally on Article 1866 of our Civil Code, which reads as follows:

“Lesion needs not be alleged to invalidate such contracts as are made by minors, either without the intervention of their tutors, or with such intervention, but unattended by the forms prescribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, without any other proof than that of the minority of the party and the want of formality in the act.”

In answer to each of the three contentions made on behalf of plaintiff, defendant has this to say: As to the first contention that the articles purchased were necessaries and that, therefore, the minor may be held liable for the purchase price, defendant says that the very article of the Code on which plaintiff relies — Article 1785 —expressly requires that in order that such a contract for necessaries be held valid, it must be shown by the furnishers of the “necessaries” that the tutor (father) failed to furnish them, and not only that they were articles needed, such as clothing', but also that taking into consideration the social and financial status of the minor, those particular articles could be considered as necessary for that particular minor.

Counsel say that there is no proof whatever in the record on these questions, and counsel also insist that even if it had been shown that the articles were necessaries and were not furnished by the father, still there would be no liability under Article 1785 for the reason that that article does not make the minor liable, but places the legal liability upon the person who should have furnished the necessaries, but failed to do so.

The second contention of plaintiff — that by retaining the articles after her emancipation by marriage, defendant ratified the purchases and thus made herself liable, although the contract may not otherwise have been binding upon her — is based on the last paragraph of Article 1785, which reads .as follows:

“In all other cases, the minor is incapacitated from contracting, but his contracts may be rendered valid by ratification, either expressed or implied, in the manner and on the terms stated in this title under the "head: Of Nullity or Rescission of Agreements.”

In answer to this contention, counsel for defendant say that even if ratification may result from the retention of such perishable items as wearing apparel, accessories, etc., there is no proof in the record to show that any of the said articles remained in the ■possession of the defendant eight months .after their purchase when she was emancipated by marriage, and that, therefore, it has not been shown that it was within the power of the defendant to return the articles. And counsel say that it requires more than the mere passive retention of such perishable movables to show ratification; that there must be some affirmative act indicating a desire to retain the benefits of the purchases, or there must be the retention of nonperishables, such as lands or buildings.

The third contention of plaintiff is that under Articles 1793 and 2229 of our Civil Code, even if the defendant is permitted to avoid liability on the ground that she was a minor at the time the purchases were made, she must first return the articles.

Article 1793 reads as follows:

“If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideration so paid or given must be restored, if it was applied to the necessary use or benefit of the incapacitated person.”

Article 2229 reads as follows:

“When minors, persons under interdiction, or married women are admitted, in these qualities, to the benefit of restitution against their engagements, the reimbursement of what may have been paid, in consequence of those engagements, during minority, interdiction, or marriage, can not be required of them, unless it be proved that what was paid accrued to their benefit.”
This contention is very similar to the second — that the purchases have been ratified by retention of the articles, and in answer to it counsel for defendant say, first, that there is no proof that the articles are still in existence and in the possession of defendant and, therefore, no proof that they can be “restored”, and second, that there is no proof that the articles purchased were “applied to the necessary use or benefit of the incapacitated, person.”

There is between counsel an irreconcilable difference on the question of the effect of Article 1866 under which counsel for defendant say that all that is necessary to avoid liability is that the defendant show that, at the time of making the purchases, she was a minor and made the purchases “unattended by the forms prescribed by law.” Counsel say that when those facts appear, there can be shown no other facts which will place liability for the purchase price on the defendant. Counsel for plaintiff insist that this is not so, and that it is not all such contracts of minors that are null, but only those which do not result in benefit to the minor. • They rely on the early decisions of our Supreme Court in Southworth v. Bowie, 1 Mart., N.S., 537, decided in 1823, in which the Court said:

“Our conclusion, therefore, is that a minor is not incapable to contract, but that he is rendered incapable to injure himself by contracting, and if in the instance before us, the jury had found that the engagement the defendant entered into, had been useful and advantageous to him, we should have felt it our duty to enforce it.”

This decision, rendered prior to the year 1825, was based on the Code of 1808. It is argued that the change brought about by Article 1860, which remains in our present Civil Code as Article 1866 almost as it was in the Code of 1825, alters this rule, even assuming that the Southworth case correctly interpreted the article of the Code of 1808 and that, as a result of the change, where a minor contracts without the authority of a tutor or parent, or where the authority is “unattended by the forms prescribed by law,” the contract is null, and that even where all the forms of law have been complied with, the contract may be annulled on the showing of simple lesion. Arts. 1866, 1867.

Since the present article (1866) is essentially the same in this regard as the Code of 1825, it is argued that the rule now is, or should be, that, in such a case as this, the mere showing of minority without proof of authority is sufficient to establish the nullity of such a contract.

This view is.expressed in an article entitled, “The Contractual Capacity of the Minor in Louisiana,” 20 Tulane Law Review, page 574. The author of the article recognizes the fact that in spite of the codal change in 1825, there have been, since "that time, many later cases which, “by misinterpreting the Southworth case, * * * have evolved in dieta a rule of partial capacity which states that the minor will be bound for his contracts when they prove advantageous or beneficial to him.”

The author cites the following cases: Guirot v. Guirot’s Syndics, 3 Mart., N.S., 400; Ducrest’s Heirs v. Bijeau’s Estate, 8 Mart., N.S., 192; Succession of Johnson, 4 La.Ann. 253; James & Co. v. Alford & Co., 15 La.Ann. 506; Commercial Credit Co. v. Pool, 2 La.App. 525.

Our own view on the matter is that there is no possibility of following both the express provisions of Article 1866 and the statement in Southworth v. Bowie. We cannot see how it is possible to hold, on the one hand, that because of Article 1866 the contract for these purchases, made by a minor without the intervention of a tutor and unattended by the forms prescribed by law, is invalid and that in order to set it aside, lesion need not be alleged, and, on the other hand, to hold that if the purchases were advantageous and inured' to the benefit of the minor, there may be liability for the purchase price. We conclude on this point that the “contract”, under which the purchases were made, was a nullity when made. It had no effect and rhe minor did not become liable for the purchase price.

If th.e contract was a nullity, then the provisions of Articles 1793 and 2229 of the Civil Code concerning restitution of what was received, must be interpreted not as setting forth conditions precedent which must be complied with before such a contract may be declared a nullity, but must be held to provide for certain resulting rights granted to the other party to such a contract which has been declared null. In other words, neither of these articles provides that the restitution must be made before the contract may be declared null. Both seem to imply, if not to expressly state, that the contract may be treated as a nullity regardless of the- restitution of the consideration given, but that after the contract has been declared null, then the other party — under certain conditions — may demand, not the purchase price originally agreed upon, but the restitution of the articles. And even this restitution may not be demanded unless the articles are shown to be still in existence and in the possession of the purchaser, and even then, because of the provisions of Article 2229, restitution may not be demanded “unless it be proved that what was paid accrued to their benefit,” that is to say, that what was received by the minor proved to be beneficial. And in passing, let us say that it is obvious that here again the burden of proof is on the vendor.

In Riva’s Heirs v. Bernard, 13 La. 159, as expressed in the second syllabus, the Supreme Court held that:

“Where the ratification of a sale, or of certain proceedings, is relied on, the burden of proof is on the party alleging it, and facts must be established from which the ratification necessarily results, when there is no positive proof.”

In International Accountants Society v. Santana, 166 La. 671, 117 So. 768, 770, 59 A.L.R. 276, where it was contended that a contract, which had been made by a minor, had been ratified after reaching the age of majority, the Supreme Court said:

“The burden of proving the ratification or voluntary execution of the contract is on the plaintiff.”

And in 4'5 Corpus Juris Secundum, Infants, § 117, it is stated that:

“ * * * the party who asserts that a contract is binding has the burden of proving matters in avoidance of the infancy asserted, * * *.”
“A person seeking to recover for necessaries furnished an infant has the burden of proving that the things furnished were necessaries suitable to the infant’s station and circumstances; * * *.”

We next consider the suggestion that even if the contract was null when it was entered into, it was ratified by the retention of the articles purchased after the minor was emancipated by marriage. It is true that Article 1785 does provide that such contract of the minor, though invalid when made, may be rendered valid by ratification either express or implied, and it is also true that in our jurisprudence there are cases in which ratification has been held to have taken place. Counsel for plaintiff cite Taylor v. Rundell, 2 La.Ann. 367 and Succession of Sallier, 115 La. 97, 38 So. 929, 930.

In the former of these two cases the defendant, while á minor, executed notes which were sued on. The defense was minority at the time the notes were executed. It was contended that even if the maker was a minor when the notes were executed, ratification had resulted from the retention, after arriving at full age of majority, of the property for which the notes were given. The Court had some doubt on the question of whether the defendant was a minor when the notes were given, but held that assuming that the defendant was a minor, the contract had been rendered valid by ratification. But the evidence showed that the notes had been given for improvements on land, or possibly for the land itself, and that from these improvements or from the land the maker of the notes had continued “to derive annual revenues.” In other words, after arrival at majority there was a continued receipt of benefits from the contract and a continued retention of improvements to realty, if not of the realty itself.

In Succession of Sallier, as stated by counsel for D. H. Holmes in their brief, “certain heirs sought to annul succession proceedings, and asked for a partition. The court found that, after coming of age, the plaintiffs had receipted for sums received for them by their tutor, and that no offer to return them had been made.” After the minors reached their respective majorities, they brought suit to annul the succession proceedings. The Supreme Court held that they had ratified the proceedings because, during more than ten years after the youngest of them had become of age, they had “receipted to their mother for all sums she had received for them * * *,” and that these sums for which they had receipted after attaining majority had been turned over to them as a result of those same succession proceedings.

In each of .those cases there was an affirmative act after attaining majority which could be construed only as an intentional ratification.

And it is obvious that such an intentional affirmative act is necessary. If the original contract is a nullity, then the new one which results from ratification can come into existence only if the parties actually intend to bring it about by acquiescing affirmatively in what has been done.

The word “ratify,” according to Webster’s New International Dictionary, means: “To approve; to sanction”. According to Black’s Law Dictionary, Deluxe Edition, it means: “To approve and sanction.” In one of the cases cited in Black’s Law Dictionary there is language illustrating the view which we have that the ratification does not result unless it is made with an intention and with knowledge of the facts. First Nat. Bank of Enid, Okl., v. Alton Mercantile Co., 8 Cir., 18 F.2d 213, 215. There the Court said that in order that ratification result the act relied on must have been done “with knowledge of all material facts”.

In International Accountants Society v. Santana, supra, the Supreme Court held that there had been no ratification even though the defendant, after attaining majority, had made certain payments on account of the contract which he had entered into during minority.

In reaching that conclusion the Supreme Court approved the decision rendered by this Court in the same case, reported in 7 La.App. 594, in which we cited many cases, from one of which, Hamilton v. Hodges, 30 La.Ann. 1290, we quoted the following statement, which is typical of what was said in all of them:

“The ratification of a contract can only be adduced from facts, when those facts evince clearly and absolutely the intention to ratify.
“The validity of any ratification — express or tacit — can legally rest but upon a previous and full knowledge of the contents of the unauthorized or defective acts to which the ratification is to impart a post-humus and retroactive validity.”

In Kothe v. Von Behren, La.App., 5 So. 2d 571, 573, we again discussed the question of ratification and again held that it was not shown that the acts performed after attaining majority had indicated an intention of ratifying the contract which was originally invalid. Following this finding, we said:

“On the whole, we are of the opinion that the evidence is insufficient to prove ratification. If it be sufficient to create a doubt, then the party against whom the ratification is claimed must have the benefit of the doubt.”

We think that the same result must be reached on the third contention of plaintiff based on Articles 1793 and 2229, since those articles obviously do not prevent the declaration that the contract is a nullity but merely require that after the contract has been declared a nullity, the minor can be called upon to restore the benefits which were received, provided it be proved, under the first of these articles, that the consideration “was applied to the necessary use or benefit of the incapacitated person,” and provided also, under the second of the articles, that “it be proved that what was paid accrued to their benefit.”

Our conclusion is that the contract was null and produced no liability in the minor to pay the purchase price and that there is no proof of facts sufficient to show ratification.

We conclude also that if the plaintiff has any rights against the minor resulting from the transaction, there is not included the right to claim the purchase price. That is all that is claimed in this suit.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: PER CURIAM.

text:
    APPEL v. ENNIS et al.
    No. 18870.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    For original opinion, see 34 So.2d 415.
    Dart, Guidry & Price, of New Orleans (Taylor Caffery, of New Orleans, of counsel), for plaintiff-appellant-appellee.
    McGovern & McGovern, Qf New Orleans, for defendant-appellant Mrs. Ennis.
    Leon F. Davison, of New Orleans, for defendant-appellee Ward C. Jensen.
   PER CURIAM.

The appeal in this matter came from the First City Court of New Orleans. Our decree was rendered on March 15th, 1948. The application for rehearing was filed on March 27th, 1948.

Paragraph 1 of Rule X of this Court reads as follows: “Applications for rehearings must be presented within the delay allowed by law for such purpose, and filed with the Clerk. When filed too late the Clerk shall refuse to accept them.”

Act 16 of 1910 reads as follows: “That judgments rendered in the Courts of Appeal of the State shall become final and executory on the fifteenth calendar day after the rendition, except in cases of appeal from the City Courts of the City of New Orleans which shall be and become final on the sixth calendar day after rendition, in term time and out of term time, unless the last day shall fall on a legal holiday, when the delay shall be extended to the first day thereafter not a legal holiday; provided that in the interval parties in interest shall have the right to apply for rehearing; provided further, in the recess of the Court, the Court shall have the right to dispose at chambers of applications for rehearing.”

More than five calendar days, in fact more than five judicial days elapsed between the rendition of the decree and the filing of the application for rehearing.

Accordingly, the application for rehearing is not considered, having been filed too late.

Application for rehearing not considered.


author: Le BLANC, Judge.

text:
    AUCOIN et al. v. AUCOIN et al.
    No. 2994.
    Court of Appeal of Louisiana. First Circuit.
    April 12, 1948.

      C. A. Blanchard, of Donaldsonville, for appellants.
    Emmet Alpha, of New Orleans, for ap-pellees.
   Le BLANC, Judge.

Plaintiffs in this case are the widow and daughter of Albert N. Aucoin who died on April 11, 1942. The daughter, according to the allegations of the petition, has qualified as the administratrix of his succession and she and her mother have accepted the succession with benefit of inventory, the widow as surviving spouse in community and the daughter as sole heir.

In their petition herein, they set out that during his lifetime, Albert Aucoin was, and he remained until his death, a partner in the firm known and operated as T. Aucoin & Sons, which was domiciled in the Parish of St. Mary, and composed of himself and his brother Joseph S. Aucoin. That during the existence of the said partnership, there was acquired by it and in its name, on November 1, 1939, a certain tract of land situated in Sec. 31, T. 15 S.R. 14 E., in the Parish of Assumption, containing 24 arpents and that on July 6, 1940 Albert Aucoin and Joseph S. Aucoin executed a deed or transfer of the same property in the name of Joseph Aucoin and placed the same of record in the Parish of Assumption. They aver that they were ignorant of these two transactions and did not discover their existence until about June 5, 1946 when Joseph Aucoin referred to them in his testimony being given in certain proceedings instituted in the Parish of St. Mary seeking an annullment of sales affecting other properties situated in that Parish.

They -aver that the sale of the property to T. Aucoin & Sons constituted it partnership property and made it owned partly by Albert N. Aucoin and partly by Joseph S. Au-coin and that Joseph Aucoin’s wife having died in the meantime, survived by an only child, Francis Aucoin, the property was then owned by the Succession of Albert N. Aucoin in the proportion of an undivided one-half and by Joseph Aucoin and Francis Aucoin in the proportion of the other undivided half jointly.

They then allege that -at the time of the execution of the said sales, they, the widow and daughter of Albert Aucoin, were not living with him as the plaintiff, Mrs. Dove-line Snell Aucoin, had been separated from him during the year 1922, had taken her child with her and had since that time lived in the Parish of Lafayette and had no communication with the said Albert N. Aucoin ever since. They aver that Joseph and Albert Aucoin were brothers who lived very dose together, constantly planning and discussing family and business matters and that when Albert Aucoin died Joseph Au-coin took charge and possession of all of the property and of Albert Aucoin’s private papers and documents, particularly of an old trunk in which he kept all of his private papers and that he has never turned over to your petitioners any of the said papers or documents.

They aver that the property involved in this suit has been and is now under lease to the Sun Oil Company and that it yields a rental of $50 per arpent per annum, which lease neither of them have ever signed or approved but in which they are entitled to an accounting.

They next allege that in the month of June, 1940, one Frank Fryou filed a suit against Albert Aucoin and Joseph Aucoin and the partnership of T. Aucoin & Sons for compensation for an injury received by him in a syrup mill in which he was working and that in order to defeat his claim Joseph Aucoin and Albert Aucoin executed a simulated sale claiming that the partnership of T. Aucoin & Sons had been dissolved since 1923 and that the syrup mill where Frank Fryou worked belonged exclusively to Albert Aucoin; that likewise at that time Albert Aucoin had contracted obligations to other parties and that he was endeavoring to place the property beyond their reach as well as beyond the reach of his wife who was not separated from him in community and therefore the said pretended sale of his interest in the partnership to Joseph Aucoin was a sham and a fraud between them for the purpose of evading the creditors of Albert N. Aucoin as well as the claims of his widow in community and his daughter as his heir. ■ They specifically aver that the sale made on July 6, 1940, from Albert N. Aucoin to Joseph Aucoin of the property involved in this particular suit is null and void for the reasons already set out and for the further reason that no .price whatever was paid by Joseph Aucoin for the same to Albert Aucoin and that even if the alleged price of $3 appearing in the act of sale was true, the same does not constitute a genuine consideration but was merely a sham and a fraud stipulated for the purpose of pretending that a consideration had been paid, and further that if that amount was actually paid the same is much less than half of the value of the property and the sale should be annulled for lesion beyond moiety.

Exceptions of want of jurisdiction in the district court, of vagueness and of no cause of action, and pleas of estoppel and res ad-judica ta were filed on behalf of the defendant which were all overruled by the court. Under reservation, the defendant then filed an answer denying mostly all of the allegations contained in the plaintiffs’ petition but admitting the two sales which are directly attacked in this suit and admitting further that no consideration was paid in the sale from Albert N. Aucoin to him for the reason that he owed no consideration to Albert Aucoin as he had paid the full and entire consideration of $600 when the property was first purchased on November 1, 1939, and the deed was erroneously drawn in the name of T. Aucoin & Sons and signed by Albert N. Aucoin. He specifically avers that the partnership of T. Aucoin & Sons has not existed since the year 1923 when he bought out the interest of Albert Aucoin, his brother, who was the sole remaining partner besides himself; that since then he personally has continued to conduct his personal business under the style of T. Aucoin & Sons, and that the very check given by him in payment of the property involved in this suit, was a check drawn on an account carried in that name and which is his personal account and that Albert Aucoin had no interest whatsoever in the property. He avers that at the time of the purchase of this property he was unable to appear himself before the Notary Public in Morgan City to sign and execute the deed and he commissioned his brother as his agent to do so; that instead of putting the property in his own name it was placed in the name of T. Aucoin & Sons and that later when he discovered the error that had been made, he and his brother both appeared before the same Notary in order to have the deed corrected. That the Notary, whose ability he trusted, instead of making a correction deed, made the transfer in the form of a cash sale -as it appears with the consideration of $3 being therein stipulated. That the amount of $3 was never paid for the reason that he did not owe any consideration, the property already being his and all that was intended to do was to transfer title from the manner in which it appeared on the Conveyance Records of Assumption Parish to his own personal name as it presently exists.

Some of the pleas and exceptions urged by defendant appear to have been abandoned but it is still urgently stressed on his behalf that the judgment rendered by the district court of St. Mary Parish, and affirmed by this court, in the Fryou case, Fryou v. T. Aucoin & Sons, La.App., 5 So.2d 193, settled once and for all time, the question of the dissolution of the partnership of T. Aucoin & Sons, and that that judgment constitutes res adjudicata in this case. With this contention however, we are unable to agree as after all, the judgment rendered in a case operates as res adjudicata only as between the parties to the suit and only with respect to what was the object of the judgment rendered.

Article 2286 of the Civil Code, the pertinent law in Louisiana on the subject, reads as follows: “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; that demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” True it is that in some cases the court extended the effect of the judgment to the privies of the parties involved in the suit but that rule cannot be applied in this case because there is no privity existing between the plaintiff in the Fryou suit and the widow in community and daughter of Albert Aucoin, the plaintiffs in this suit, and neither is this suit founded on the same cause of action as the plaintiff in the Fryou case was suing for workmen’s compensation whereas the demand here is for the setting aside of a sale of real estate on the ground of fraud. The article of the Code provides that “the authority of the thing adjudged takes place only with respect to what was the object of the judgment” and in the case of State v. American Sugar Refining Co. 108 La. 603, 32 So. 965, 966, the court stated “the law by virtue of which the object of the judgment is delivered is no part of the object of the judgment.” The question of the dissolution of the partnership of T. Aucoin & Sons which was injected in the Fryou case and considered by the court may well have been one of the reasons for the judgment rendered in that case but, as also stated in the American Sugar Refining Co. case, just cited, “res adjudicata does not take place with respect to the reasons for judgment” and further, “res adjudicata deals, if we may so express ourselves, with the decree of the court, as contradistinguish-ed from the judgment of the court.” See also State ex rel. Puritan Co., Ltd. v. City of New Orleans, 169 La. 365, 125 So. 273. Guided 'by the principles enunciated in those two cases and others cited in each, we hold that the plea of res adjudicata as invoked in this case cannot apply.

We come now to consider the case on the merits, on which point the district judge ruled in favor of the defendant and dismissed the suit of the plaintiff.

Notwithstanding the fact that the plea of res adjudicata cannot be successfully invoked we do feel as though the reasons stated for the judgment rendered in the Fryou case can be considered as an element of proof in this case. It would seem, as a matter of fact, that this court could hardly overlook that case as it is referred to by the plaintiffs in their petition and also it is a matter of record before this court. Plaintiffs contend that the sale of his interest by Albert Aucoin, as shown in the Fryou case, was, even at that time, a sham and a fraud and a subterfuge to deprive his widow of her community rights in his property and the question now is whether in this case they have succeeded in showing that it was such a sham and fraud. To do that, they undertook to show that Albert Aucoin, even if he was supposed to have sold out his interest in the partnership continued to maintain an active interest in its affairs, lived and died on the property which he is supposed to have sold his interest in to his brother, and so conducted himself on the outside and toward his friends as to lead all to believe that he still shared in the profits of the partnership and even referred at times, to the properties which he owned. Most of this testimony was refuted by other witnesses and the trial judge evidently did not believe it. As a matter of fact he states in his written opinion that he had no reason to doubt the testimony of the defendant Joseph Aucoin and on the other hand is rather critical in his appraisal of the testimony of one of the plaintiffs’ principal witnesses. We take the liberty of quoting his written reasons on his findings of fact in the case:

“The testimony of Joseph S. Aucoin in the Court’s opinion, shows conclusively, that he bought out Albert’s interest, in the mercantile business in 1923; that he continued the business and is still doing business under the trade name of T. Aucoin & Sons. This evidence, in the Court’s opinion, is uncontradicted and disproves paragraph 2 of plaintiffs’ petition which alleges that Albert was a partner of Joseph Aucoin ■until his death.
“The evidence further shows that when 'his ¡brother, Albert, informed him, Joseph, that Michel Dupre wanted to sell the property in litigation and the price thereof he, Joseph, being busy and unable to go to Morgan City to pass the sale, gave his brother, Albert, his check for $600.00, to purchase the property for him.
“Joseph’s testimony is corroborated by Michel Dupre who testified that he had to ■wait for Albert who had to go get the money (Exhibit P. 1). If Joseph Aucoin’s testimony is true, then this property was bought and paid for with his own money and belongs to him. The check proves this (P. 1). Joseph Aucoin testifies that Albert .and Dupre went to Mr. Charles Bibbins, a Notary Public who passed the sale to T. Au-coin & Sons, a co-partnership composed of Joseph S. Aucoin and Albert N. Aucoin. That the property so remained until he, Jo•seph Aucoin, inquired about his taxes, some eight months later, when he was told that the property was assessed to T. Aucoin & Sons, and not to Joseph Aucoin; that he and his brother went to the Notary to have the deed corrected, whereupon Mr. Bibbins, the Notary passed a sale of Albert’s purported i/z interest to Joseph Aucoin, for a consideration of $3.00 which Joseph Aucoin admits was not paid; he testified that no con.sideration was necessary as he was not buying any property from Albert, and the Notary told them that the sale was a correction deed. Mr. Bibbins, the evidence shows, was a Notary, and not a lawyer, and executed what he considered a deed of correction, in the Court’s opinion. * * *
“The court does not know Mr. Joseph Aucoin, but has no reason not to believe his testimony.
“The evidence further shows that Albert Aucoin had a half interest in the Aucoin Dairy, and that he sold his interest to Joseph Aucoin in 1940, and that Albert died on April 11th, 1942. To dispute this fact and to show that Albert Aucoin owned this dairy at his death, and that Albert had purchased the property in litigation, the plaintiffs themselves testified and called Mr. John Siracusa, as a witness. The evidence of plaintiffs show that after the separation in 1922, Mrs. Aucoin and her daughter moved to another parish, had nothing to do with him, Albert, and knew very little of Mr. Albert’s business; and testified about an old trunk, which disappeared, and which was supposed to have contained documents relative to Mr. Albert’s business. None of the other witnesses knew or had heard of this old trunk. The evidence of both plaintiffs is not convincing, and in the court’s opinion, prove none of the allegations of their petition. *. * *
“The testimony of Mr. Siracusa, plaintiff’s main witness, is amazing; the Court uses this word because it wants to be charitable. He testified that he and Albert Au-coin were very friendly, a fact denied by all other witnesses. That Albert told him all of his business, because, Siracusa says, it seemed to relieve his, Albert’s mind; that Albert owned the dairy and the land on which the dairy was located; that Albert showed him, Siracusa, all his property, cows, barns, etc., one year before his death and told him that the property pointed out was all his, Albert’s; that Albert told him that he had bought the Michel Dupre property (the property in dispute) and yet we find Siracusa testifying to, and admitting the following facts: That after Albert Au-coin died, he, Siracusa, believed the dairy was the property of Albert Aucoin, but nevertheless bought it from Joseph Aucoin for $3000.00, because, he says, Joseph Au-coin, guaranteed to make the money good; that he, Siracusa, wanted -and offered to buy the- 75-acre's, back of the railroad, on which the dairy was situated for $15,000.00, but Joseph Aucoin would' not sell it to him. (And this is the property, he says, Albert, pointed out as belonging to him, the year before). This is the witness who the plaintiffs contend prove their case and proves that the Dupre property, in litigation, was bought by and belonged to Albert Aucoin.
“Well, the Court is of -a different opinion. The Court does not know Mr. Siracusa, but such testimony is beyond belief, and the Court is of the opinion that the plaintiffs have utterly failed to prove their case.”

We have carefully considered all the evidence in the case, and on the record as it is presently made up, we agree with the learned trial judge on his finding of facts.

However, counsel for plaintiffs now urges before this court that he has discovered other proof which shows beyond question that the defendant is unworthy of belief, such proof consisting of various documents which were signed by 'him between the time of the alleged dissolution of the partnership of T. Aucoin & Sons in 1923 and the time the sale of the property involved in this suit took place. As a consequence, he has filed a motion to 'remand the case to the district court and has annexed thereto certain documents which, in the motion, it is averred were discovered subsequent to the judgment rendered below and to the time this appeal was perfected.

The documents are all matters of public record relating to law suits, to sales of properties and one to an oil lease. One of them is an affidavit, verifying the allegations of a petition in a certain suit in St. Mary Parish, which affidavit was made before the present counsel himself, as notary, and another is a lease which apparently is the same'lease that is referred to in the Fryou case with which counsel seems to be thoroughly familiar. The other documents relate to a lawsuit which came on appeal from the district court o,f St. Mary Parish to this court and then went on certi-orari to the Supreme Court of the State, the opinion of each court 'being duly reported in published opinions of both. We learn from the record in the present suit that there are- several suits pending in the district court of St. Mary Parish, some of which have been partially tried, involving the same issues as are here presented and it is difficult for us to believe that, as assiduous a lawyer as counsel for plaintiff is, he would not previously have informed himself of all the matters to which these documents relate. All the documents were public records and were readily available to any one interested in procuring them at any time. We do not think we would be justified in remanding the case for their introduction in the record and therefore overrule the motion to remand.

Counsel has also filed a plea of prescription and an exception of no cause of ac-: tion to what he claims is the demand of the defendant to have the deed of July 6, 1940, from Albert Aucoin to himself, reformed. Defendant however makes no such demand. We presume that he is satisfied with the present status of the title to the property since it rests in his name and in his pleadings he has not asked for judgment correcting or reforming any deed. These pleas are likewise overruled.

Finding the judgment appealed from to be correct, it is, for the reasons hereirj stated, affirmed at -the costs of the plains tiffs, appellants herein.