text:
    CITY OF LAFAYETTE, Louisiana, Plaintiff-Appellant, v. MARKS CONSTRUCTION COMPANY, INC., Defendant-Appellee.
    No. 5086.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Refused Oct. 17, 1975.
    Ronald J. Judice, Charles R. Keller, Lafayette, for plaintiff-appellant.
    Howard W. Martin, Martin & • Leonard, Lafayette, for defendant-appellee.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The City of Lafayette, Louisiana, filed this suit against Marks Construction Company, Inc. to enforce its liens against lots 199, 200 and 201 of Best Marks Subdivision in order to collect a sewerage assessment. The defendant-owner filed a peremptory exception urging thé prescription of three years. The exception of prescription was sustained by'the trial court which dismissed plaintiff’s suit.

The facts were presented by stipulation. In summary, they are as follows: The sewerage assessments were levied under Ordinance No. 872 of the City of Lafayette. The ordinance was passed under the authority of LSA-R.S. 33:3986, which will be quoted in pertinent part below. The ordinance provided that the assessments were due on or before June 20, 1969, and, if not paid on that date, it was presumed conclusively that the owner elected to pay them off in ten equal annual installments, the first being due on December 31, 1969. The defendant did not pay the assessments on June 20, 1969, or the first installments due on December 31, 1969, nor any subsequent installments.

This suit was filed on August 5, 1974. There is no dispute as to the collection of the assessment, other than that of prescription. The parties agree that the prescriptive period is three years, as provided by LSA-R.S. 33:3746, also quoted below.

The question presented is: when does the prescriptive period commence ?

The trial court held, as the ordinance provided, that defendant’s failure to pay on June 20, 1969, was an election to pay in equal annual installments; that defendant’s failure to make the first annual payment due on December 31, 1969, caused all of the subsequent installments to become due; and that, therefore, plaintiff’s claim prescribed three years thereafter. The trial court reasoned that the City of Lafayette had ample time to proceed to collect the assessment and its failure to do so had caused prescription to run.

Plaintiff contends on appeal that the acceleration clause in the ordinance does not accelerate the prescription period and that prescription does not run until the original due date of the final installment, in this case, December 31, 1978.

The parties agree that Ordinance No. 872 was passed pursuant to the authority of LSA-R.S. 33:3986, which provides in pertinent part as follows:

* *
The amount assessed in said ordinance shall be due and collectible immediately on its passage, and, if not paid within thirty days from the date of the adoption of said ordinance, it will be conclusively presumed that any property owner whose property is affected thereby, exercises the right and option, which is hereby authorized, to pay the amount due in equal annual installments bearing interest at a rate or rates not exceeding the maximum rate provided for conventional interest by Article 2924 of the Louisiana Civil Code as the same now exists or may be hereafter amended, and extending over a period not exceeding twenty years, all within the discretion of the governing authority and as provided for in the ordinance levying such local or special assessments. The first installment shall become due on December 31 of the then current year or one year after the date of the assessment ordinance herein provided for, in the discretion of the governing authority of the district, and annually thereafter. The failure to pay any installment or interest thereon when due, shall ipso facto cause all other installments and the interest thereon to become due and payable and the sewerage district shall within thirty days from date of such default,, proceed against the property for the collection of the total amount due thereon, including interest, plus twenty per cent additional on the principal and interest of the past due installment or installments or twenty per cent of the amount sued for, and in the event judgment is necessary to effect collection, twenty per cent of the amount of the judgment rendered, as attorneys’ fees.”

The parties also agree that the applicable statutory provision relative to prescription is found in LSA-R.S. 33:3746, which, in its entirety, reads as follows:

“§ 3746. Prescription of claims, liens and privileges for local or special assessments for paving and sewerage improvements

Claims, liens and privileges resulting from the levying of local or special assessments by any. parish, municipality, sewerage district or other special taxing district to coyer the cost of constructing, paving, surfacing, re-surfacing or otherwise improving streets, roads, sidewalks and alleys or the cost of the construction, installation or maintenance of sewerage systems shall prescribe three years after the date when the final installment or deferred payment of said local or special assessment shall become due and payable under the terms of the ordinance or resolution levying the assessment. In all cases where the cost of the paving has been advanced by any parish, municipal corporation, or other special taxing district, to be refunded in annual installments, the claims, liens, and privileges shall prescribe in the same manner as taxes, tax liens and privileges. As amended Acts 1954, No. 204, § 1.”

The key provision to be interpreted is found in section 3746 and is the phrase “ . . . shall prescribe three years after the date when the final installment or deferred payment . . . shall become due and payable . . . ” The question then is whether the prescriptive period began to run on December 31, 1969 through defendant’s failure to make the first payment or whether prescription begins to run on December 31, 1978, the date on which the final installment would become due.

Counsel for both parties as well as counsel for amici curiae have suggested several interesting theories which, they contend, militate for the interpretation of the statutory prescriptive provision either in favor of plaintiff or in favor of defendant.

We have been referred to equitable considerations, although it appears to us that there are equities on both sides of the conr troversy. We have been referred to various rules of statutory construction, which we will not detail here, because we find that none is controlling in interpreting the phrase at issue. Also, our attention has been directed to the legislative history, of Section 3986 but the history, if as urged, does not decide the dispute. The “rule of contemporaneous construction” has been suggested as a tool for interpreting the statutes, but, as counsel for appellee notes in rebuttal brief, there is no evidence in the record on which to apply this rule.

In summary, this is a res nova point in Louisiana with few, if any, jurisprudential guides to assist in its resolution.

We have consulted the jurisprudence of other jurisdictions, and as might be expected, we have learned that there is no agreement.

“Because of the varying terminology of acceleration clauses, no general rule can be stated as to whether a provision for acceleration, in the event of default of one installment, has the effect of automatically commencing the running of the bar of limitations against the remaining installments of a special assessment.” 70 Am.Jur.2d Sec. 186, pg. 984.

Even when the ordinance or statute uses the word “shall” in declaring that the remaining installments become due and payable, the courts have held in some instances that the statute of limitations (prescription in Louisiana) begins to run and in others that it does not. 70 Am.Jur.2d, supra.

In interpreting the prescriptive statute, LSA-R.S. 33:3746, we must look to the wording of the provision and attempt to determine the intent of the legislature. By “the date” of the “final installment or deferred payment’’ we believe the legislature meant the readily ascertainable date at the end of the extended period for payment, not some uncertain date which would be determined by default of the taxpayer.

If acceleration of the prescriptive period was intended, we believe the legislature would have made an appropriate provision. The payment acceleration clause is for the benefit of the assessing authority; to adopt the theory of prescription urged by defendant would be to conclude that the legislature gave a benefit but took it away by accelerating prescription. We decline to make this conclusion.

We are impressed by the reasoning in City of Jackson v. Willett, 178 Tenn. 605, 162 S.W.2d 367 as adopted in City of Salisbury v. Arey, 224 N.C. 260, 29 S.E.2d 894, where the court said that the taxpayer is seeking to penalize the city for its indulgence, that is, for its failure to mature the entire debt by enforcement of the statutory acceleration provision.

The Supreme Court of North Carolina, in Town of Farmville v. Paylor, 208 N.C. 106, 179 S.E. 459 reached a conclusion identical to ours in a case analogous to the instant appeal, stating:

“We hold that the provision for the acceleration of the maturity of deferred installments upon default in payment of past-due installments is for the benefit of the creditor town, and is not self-operative, and that the town, upon default, may either institute foreclosure proceedings or may waive the acceleration provision without starting the running of the statute of limitations.” 179 S.E. 461.

Also see Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81 (1934).

Therefore, we conclude that the exception of prescription was erroneously sustained and that it should have been overruled. We reverse the judgment of the trial court and remand the case for further proceedings according to law. Costs are taxed against appellee.

Reversed and remanded.


source: Caselaw Access Project

author: DENNIS, Judge.

license: Public Domain

text:
    Carolyn Clifton BOYETT, Plaintiff-Appellant, v. Tena J. WINGFIELD, Defendant-Appellee.
    No. 12651.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 1975.
    En Banc.
    Rehearing Denied Sept. 3, 1975.

      Burnett, Harrison, Sutton & Walker by Glenn E. Walker, Shreveport, for plaintiff-appellant.
    Harvey P. DeLaune, Bossier City, for defendant-appellee.
    Before BOLIN, PRICE and DENNIS, JJ-
   DENNIS, Judge.

This is a proceeding in which Carolyn Boyett, former wife of Tena Wingfield, defendant, seeks declaratory judgment recognizing her' as sole /owner of certain immovable property of the former community of acquets and gains. Defendant filed an exception of no cause of action contending that the petition contained no allegation of a written community property settlement and that verbal sales of immovable property are null even between the parties. The district court sustained the exception, and plaintiff appealed. We affirm.

The well pleaded allegations of the plaintiff’s petition must be accepted as true for the purpose of determining whether the petition states a cause of action. Paragraphs 3, 4 and 5 of plaintiff’s petition state:

“3.

“That following the above-said Judgment of Separation, petitioner and defendant did negotiate a community property settlement, under the terms of which, in pertinent part, defendant was to convey unto petitioner his interest in the former family home located at 2328 Douglas Street, Bossier City, Louisiana, which property is more particularly described as being:

“Lot 13, Greenacres Subdivision, Unit No. 1, A subdivision in Bossier City, Bossier Parish, Louisiana, as per plat recorded in Book 141, at Page 525, of the Conveyance Records of Bossier Parish, Louisiana, together with all buildings and improvements thereon located.

. “That attached hereto and made a part hereof is a copy of the negotiated community property settlement, designated Exhibit ‘A’.

“4.

“That defendant and his legal counsel agreed to and accepted all the terms of the community property settlement, and plaintiff did perform her obligations under said property division agreement; plaintiff subsequently forwarded a written assumption deed to the defendant for execution so that plaintiff’s record title to the property described in Paragraph 3 above would be clear; a copy of said assumption deed' is attached hereto and made a part hereof as Exhibit ‘B’.

“5.

“That these facts notwithstanding, defendant has failed and refused to execute the deed attached hereto as Exhibit ‘B’, and plaintiff’s record title to said property continues to be clouded by the record of defendant’s name thereon.”

Exhibit “A” referred to in paragraph 3 of the petition was a photocopy of an unsigned instrument entitled “Community Property Settlement”. Thus it is clear that by this suit plaintiff seeks to enforce a verbal sale of immovable property.

Pertinent to the issue at hand are Civil Code Articles 2440 and 2275 which state:

“Art. 2440. Sale of immovable, methods of making
“Art. 2440. All sales of immovable property shall be made by authentic act or under private signature.
“Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”
“Art. 2275. Verbal sale of immovables
“Art. 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or- other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

Our courts have been consistent in their rejection of parol evidence to prove a sale of immovables, except where the requirements of Article 2275 have been adhered to. The plain and unmistakable language of this article conditions the right to propound interrogatories upon the actual delivery of the immovable property alleged to have been sold. Thus, the allegation that the property has actually been delivered is essential to the statement of a cause of action for the enforcement of a verbal sale of immovable property under Article 2275. Johnson v. Sandifer, 56 So.2d 762 (La.App., 2d Cir. 1952).

A careful review of the allegations of plaintiff’s pleadings fails to disclose there has been any actual delivery by the defendant of the property to anyone. Therefore, the district court was correct in sustaining the exception of no cause of action.

Plaintiff contends, however, that the judgment of the trial court should be reversed because of its rulings with regard to her motions for a new trial and for traversal of interrogatories. Before the court decided the exception of no cause of action plaintiff propounded interrogatories to defendant concerning the alleged verbal conveyance of the property. On the day of the hearing on the exception the defendant filed his answers to the interrogatories in which he denied the verbal sale. After the exception was sustained plaintiff filed motions for new trial and to traverse the answers to the interrogatories. At the hearing on these motions the trial judge refused to allow plaintiff to introduce pa-rol evidence to traverse the interrogatories .and denied both motions.

We must reject the plaintiff’s contention because, under Art. 2275, the actual delivery of the immovable property is a condition precedent to the right to propound interrogatories to the alleged vendor. Johnson v. Sandifer, supra. Therefore, in the instant case, where -the plaintiff failed to allege actual delivery of the property, it would have been improper, and even futile, for the court to consider the interrogatories and answers thereto, much less a traversal of them. Furthermore, it also appears to be settled that, in any event, answers to interrogatories under Art. 2275, which supply the place of written evidence, must be accepted as true and cannot be contradicted by parol testimony. Rubenstein v. Files, 146 La. 727, 84 So. 33 (1920); Cernich v. Cernich, 210 La. 421, 27 So.2d 266 (1946); Perry v. Perry, 122 So.2d 829 (La.App., 1st Cir. 1960).

The judgment of the trial court is affirmed at the cost of the appellant.

Affirmed.


author: ELLIS, Judge. PER CURIAM.

text:
    COLLEGE PARK CREDIT CORPORATION v. Gavin P. AITKENS and Patricia Aitkens.
    No. 10310.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    On Rehearing Sept. 2, 1975.

      , Garic K. Barranger, Covington, for appellant.
    Robert A. Anderson, Jr., Covington, for appellees.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   ELLIS, Judge.

This is a suit on a promissory note. Plaintiff is College Park Credit Corporation, the original payee of the note. Defendants are Gavin P. Aitkens and Patricia Aitkens, his wife, the makers of the note. The only defense made is that plaintiff failed to comply with the “Truth in Lending Act”, 15 U.S.C.A. Sec. 1601 et seq., by not delivering to defendants a copy of the disclosure statement required thereby. After trial on the merits, judgment was rendered in favor of plaintiff and defendants have appealed.

The record contains a “Federal Truth in Lending Disclosure Statement” signed by both defendants. It contains the following language:

“The undersigned acknowledge receipt of a copy of this statement prior to the delivery of the Promissory Note referred to above.”

Dr. Aitkens testified that 'he had no recollection of the transaction. Mrs. Aitkens testified that she kept all the papers relative to the transaction in a brown folder, and that there was no copy of the disclosure statement therein. Neither of them denied having received a copy of the statement.

The “Truth in Lending Act” does not provide that any presumptions arise from the introduction in evidence of a signed disclosure statement, or for any particular burden of proof in suits between the original parties to a note which is not secured by an interest in real property. The burden of proof is, therefore, as in any other case. See 15 U.S.C.A. Sec. 1635(c), Sec. 1641.

Plaintiff has shown a receipt for a copy of the disclosure statement signed by defendants. The testimony of defendants was not found sufficient to rebut plaintiff’s evidence, which certainly constitutes prima facie proof of delivery. We think the trial judge correctly resolved the issue in favor of plaintiff.

The judgment appealed from is affirmed, at plaintiff’s cost.

Affirmed.

Before SARTAIN, ELLIS and BAR-NETTE, JJ.

PER CURIAM.

It is necessary in this case that we grant a rehearing to correct an error on our part when we inadvertently cast plaintiff-appel-lee, the successful litigant, for costs.

Counsel for defendants-appellants concurs in the application, specifically waives oral argument, and consents to a rehearing for this limited purpose.

Accordingly, a rehearing is granted herein and our original decision is- amended, affirming the judgment of the trial court at defendant-appellants’ costs. Our original opinion, as amended, is hereby reinstated.

Original judgment amended and as amended reinstated.


author: HALL, Judge.

text:
    Mrs. Ruby Alexander JONES, Plaintiff-Appellant, v. Mrs. Lucille Cox DeLOACH, Defendant-Appellee.
    No. 12634.
    Court of Appeal of Louisiana, Second Circuit.
    July 1, 1975.
    James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    Jackson B. Davis, Shreveport, for defendant-appellee.
    Before HALL, DENNIS and MORRIS, JJ-
   HALL, Judge.

Plaintiff, Ruby Alexander Jones, sued the defendant, Lucille Cox DeLoach, to rescind the sale of a residence sold by defendant to plaintiff by a credit sale deed.

The grounds asserted by plaintiff to set aside the sale can be summarized as follows :

(1) The contract contains an impossible condition and error as to a principal cause in that the monthly payment stipulated in the credit sale deed is not sufficient to pay interest on the balance due and will never reduce or pay the principal balance due.
(2) There was further error as to a principal cause in that a substantial motive of the buyer was to rent rooms in the residence to lodgers which she cannot do because of applicable zoning regulations and building restrictions.

The grounds asserted by defendant to uphold the validity of the sale can be summarized as follows:

(1) The sale was not made on an impossible condition or in error because the deed gives the purchaser the right to make prepayments and the purchaser expressed an intent to make prepayments, thus making payment of the purchase price possible.
(2) The renting of rooms to lodgers does not violate the building restrictions or zoning ordinance and even if there was a violation it has existed for more than two years and any objections thereto have prescribed under applicable statutes.

Neither party sought or prayed for reformation of the contract. After trial the district court held that since the deed grants the purchaser, prepayment privileges, payment of the consideration for the property is not impossible. The court further held that the rental of rooms to others by the purchaser, as she contemplated and was actually doing at the time of trial, was not a violation of the building restrictions or zoning ordinance.

From a judgment rejecting her demands, plaintiff appealed. We reverse and order the sale set aside.

The evidence discloses that Mrs. De-Loach, a widow, offered her residence on Fern Street in Shreveport for sale for a price of $49,500 and was asking for a $10,000 cash part payment with the balance to be financed at an interest rate of 7i/¿% per annum with monthly payments of $295. Mrs. Jones, also a widow, contacted Mrs. DeLoach concerning purchase of the property and advised the seller she could not pay more than $8,000 cash and $225 per month, the cash payment representing most of her life savings and the monthly payment amount being based on a limited monthly income primarily from an oil check she regularly received. Mrs. De-Loach was at that time renting one or two rooms to lodgers and Mrs. Jones expressed an intent to use the rental of rooms to help make the monthly payments. She inquired as to whether or not she could rent rooms and was assured by Mrs. DeLoach and Dottie Ports, the seller’s daughter and a real estate agent, that she could do so.

An agreement was reached and Dottie Ports prepared a sales contract which was executed by the seller and purchaser. Thereafter, the seller, her daughter, and the buyer went to the office of the Clerk of Court of Caddo Parish and a credit sale deed was prepared pursuant to their instructions by a deputy clerk of court. The deed is on a standard printed form conveying the property “subject to any recorded servitudes, building restrictions, and to the statutory servitudes of the Caddo Parish Levee Board”. The deed recites a consideration of $49,500, payable $8,000 cash and the balance in one note for $41,500, bearing interest at the rate of per annum from date until paid, “the principal and interest due on said note being payable” in consecutive monthly installments of $225 per month until said note is paid in full. The deed provides that “the amount of each monthly installment shall be applied and credited first to the accrued interest then due on the total unpaid principal balance, and the remainder of the installment shall be applied to the reduction of the unpaid principal balance”. The deed also provides “the purchaser is granted full prepayment privilege”. The deed was executed by the parties, duly recorded, and the buyer took possession of the house.

The note was placed with a bank for collection. When Mrs. Jones made her first monthly payment she was told by a bank official the payment of $225 was not sufficient to cover the amount of accrued interest and no part of the payment could be applied to reduction of the principal bal-anee due. One month’s interest on. the principal was approximately $259.

The buyer contacted an attorney, demand for cancellation of the sale was made and refused, and this suit ensued.

The evidence is that at no time during the negotiations was anything ever specifically said by anyone concerned about whether or not the $225 monthly payment would be sufficient to pay interest and reduce the principal. Neither of the parties, the realtor daughter, or the notary before whom the deed was executed were aware that the $225 would not even pay the interest on the balance of the purchase price.

There was some discussion during the negotiations that the buyer might sell some other property and might at some time be in the position of making prepayments on the note, but there was no firm commitment or agreement in that regard.

Louisiana Civil Code Articles pertinent to the “impossibility” issue are:

“Art. 2031. Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.”
“Art. 2033. Physical and moral impossibilities only are intended by the preceding articles. If the condition be only relatively impossible, that is to say, impracticable by the obligor, only from the want of skill, strength or means, but practicable by another, it is not an impossible condition.”
“Art. 1891. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it.”

The following Civil Code Articles are pertinent to the “error” issue:

“Art. 1779. Four requisites are necessary to the validity of a contract:
1. Parties legally capable of contracting.
2. Their consent legally given.
3. A certain object, which forms the matter of agreement.
4. A lawful purpose.”
“Art. 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by — ■
Error;
Fraud;
Violence;
Threats.”
“Art. 1820. Error, as applied to contracts, is of two kinds:
1. Error of fact;
2. Error of law; [.]”
“Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.”
“Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must in some point, which was a principal cause for making the contract, and it may be either as to the motive for making- the contract, to the person with whom it is made, or to the subject matter of the contract itself.”
“Art. 1825. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.”

In the case before the court the credit sale deed itself discloses the parties’ intent that the monthly payment not only pay interest but reduce principal. The instrument provides that “principal and interest” are payable in consecutive monthly installments of $225 each. The instrument provides that the monthly payments shall be applied first to accrued interest and then to reduction of the unpaid principal balance.

The evidence is clear that no one involved, the seller, buyer, seller’s daughter, or notary was aware that the payment was not sufficient to do what the contract called for it to do, that is, pay interest and principal.

It would be impossible for the buyer to pay the balance due, principal and interest, in the manner in which the parties contracted, that is, by paying $225 per month. The parties contracted to do an impossible thing. The object of the obligation — to pay the balance of the purchase price in monthly installments of $225 — is impossible.

Likewise, it is clear that there was error on the part of both seller and buyer. The amount agreed on for the monthly installments will not pay the interest and reduce the principal as the contract provides.

In this day and time when most sales of residences are made with maximum financing, either by the seller or by a lending institution, the terms of the financing are often the primary consideration of the transaction. The buyer often is more concerned with the amount of the monthly payment than with the total amount of the price of the property or the total amount of the loan. Customarily, the monthly payment is viewed as an amount which will pay interest on the balance owed and will reduce the principal, usually over an extended period of years.

That these motives and objections were paramount in the instant case is demonstrated by the testimony and by the credit sale deed. The maximum amount of the monthly payment was of prime importance to the buyer and this fact was communicated to the seller. The parties’ intent that the monthly payment be sufficient to pay interest and principal is manifest from the deed itself.

It is equally important to the seller that the payment be sufficient to pay both interest and principal. Under the contract as written, the seller could never enforce payment of the balance of the purchase price so long as the $225 monthly payments are made.

There was error on the part of both seller and buyer. It was error as to a principal cause, motive ór end of the contract. Under the code articles such error vitiates consent and invalidates the agreement. See Carpenter v. Skinner, 224 La. 848, 71 So.2d 133 (1954); North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App. 2d Cir. 1973); Meadors v. Cravy, 165 So.2d 546 (La.App. 2d Cir. 1964). Compare Cryer v. M & M Manufacturing Company, Inc., 273 So.2d 818 (La.1973).

The fact that the buyer has the right to make prepayments over and above the stipulated monthly payments and thereby reduce the principal balance does not make that which the parties contracted to do any the more possible or change the nature of the error. The parties contracted that principal and interest be paid in monthly installments of $225 and this remains impossible of fulfillment.

The holding of this court is that because of impossibility and error, the buyer is entitled to have the sale set aside.

Plaintiff prayed for return of the $8,000 paid as part payment of the purchase price and return of the monthly installments paid. She is clearly entitled to return of the cash portion of the purchase price paid. It may be that the defendant is entitled to credits or adjustments for plaintiff’s use of the property since the date of the sale, rents collected, or the like. The status of the record and the evidence contained therein are not sufficient to adjudicate these matters. It is appropriate that the action be remanded to the district court for further proceedings relating to any adjustments to be made between the parties and in due course for entry of a final judgment rescinding the sale and ordering return of such amount as is found to be due from the seller to the buyer.

In view of the conclusions reached on the issues discussed above, which are determinative of the case, it is unnecessary to discuss the issues related to the. building restrictions and zoning ordinance.

For the reasons assigned, the judgment of the district court is reversed, the sale of the property described as:

Lot 139 of a Replat of CLINGMAN PARK SUBDIVISION, UNIT NO. 4, a subdivision of the City of Shreveport, Parish of Caddo, as per plat and map recorded in Conveyance Book 700, Page 129, of the records of Caddo Parish, Louisiana, together with all buildings and improvements thereon

is ordered set aside, and the case is remanded to the First Judicial District Court for further proceedings in accordance with law and with this opinion.

Reversed and remanded.


author: GULOTTA, Judge.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Ida Watkins, wife of/and Earl ROBERTS.
    No. 6874.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1975.
    Rehearing Denied Sept. 9, 1975.

      Alfred Abramson, Laplace, for plaintiff-appellant.
    Daniel E. Becnel, Jr., Reserve, for defendants-appellees.
    Before GULOTTA, STOULIG and MO RIAL, JJ.
   GULOTTA, Judge.

ON MOTION TO DISMISS.

We issued, ex proprio motu, an order directing the parties hereto to show cause why the appeal should not be dismissed for lack of jurisdiction because the appeal bond was untimely filed. It appeared that the time for filing for a new trial and the 90 day period for perfecting an appeal (which commences after notice of judgment has been sent to the parties) had expired. See LSA-C.C.P. art. 2087. In response, appellant alleges that LSA-C.C.P. art. 1914 requires that notice of judgment be sent to the parties if a case has been taken under advisement, and that nothing is contained in the record to show that notice was sent. Hence, appellant argues that the period in which to ask for a new trial and to perfect an appeal has not commenced. We agree.

A notation at the end of the judgment indicates that the judgment was to be served on all parties including the sheriff of the parish. Underneath that typewritten notation is a handwritten notation in ink which is dated June 25, 1975, and shows “cc” as well as the name of the attorney for the appellee, appellant and the sheriff. The record is devoid of any other reference to a certification by the clerk of mailing of a notice of signing of the judgment. LSA-C.C.P. art. 1913 states:

“The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.”

We hold that the handwritten notation does not satisfy the requirement that a certificate of notice be filed in the record. Therefore, the appeal period has not begun to run, has not expired, and the appeal is timely.

ON THE MERITS.

Plaintiff creditor appeals from a dismissal of its suit against defendants for seizure and sale by executory process of defendants’ real property, and from the issuance of a permanent injunction restraining the Sheriff of the Parish of St. John the Baptist' from taking any further action in connection with the seizure and sale of the property.

On appeal, plaintiff complains that the trial judge erred in concluding that defendants sufficiently carried the burden of proof required to show payment of the monthly installments on the mortgage note. Plaintiff’s position is that the receipts of purchase of money orders are not sufficient proof to show that the amount specified in the money order was ever sent to the payee or that the payee ever received it. We reject plaintiff’s contention.

The plea of payment is an affirmative defense and the burden of proof is upon the party who asserts it. See LSA-R.C.C. art. 2232; Fontenot v. La-Fleur, 281 So.2d 868 (La.App., 3d Cir. 1973), writ refused, 284 So.2d 336 (La.1973); Ford v. Clark, 203 So.2d 775 (La.App., 2d Cir. 1967). Defendant Roberts testified that he paid all installments due on the note from February, 1974, through June, 1974. His testimony was corroborated by. his wife. Roberts also testified he paid the monthly note with postal money orders for which he had receipts; he mailed the money orders to the mortgage company; and, none of them had ever been returned to him. The receipts, introduced into evidence at the trial, indicate that the following money orders were purchased :

January 28, 1974 $125.44
March 1, 1974 125.44
March 18, 1974 20.00
March 22, 1974 40.00
April 26, 1974 125.44
May 24, 1974 76.80
June 7, 1974 78.21

The record reveals that in 1974 the Roberts’ reduced monthly notes amounted to $76,80.

Plaintiff does not attack the credibility of the witnesses but the sufficiency of the proof. They contend that the receipts merely prove that money orders for the-specified amounts were purchased and do not prove to whom the payments were made. It appears, however, that the receipts were introduced into evidence, without objection, and without cross-examination as to whether the receipts, showing the mortgage creditor to be the payee, accurately reflect the original money orders. No attempt was made by plaintiff to rebut the evidence presented, or to discredit any of the testimony. In absence of any contradictory proof, we cannot say the trial judge erred in concluding defendants successfully carried the burden of proof showing payment.

Plaintiff finally contends that assuming the amounts specified in the money orders were paid to the payee, nevertheless, the money orders show that no payment was made for the month of February. Accordingly, plaintiff argues, the debtor was in default in February and plaintiff had the right under the mortgage to seize and sell the property under executory process. We do not agree. While the record fails to reflect that any payment was made in February, payment was máde on March 1, 1974, for $125.44 which is more than the $76.80 payment due. Furthermore, two subsequent payments were also made in March. Plaintiff did not file suit until May 29, 1974, at which time defendants were no longer in default.

The trial judge erroneously awarded attorney’s fees to defendants. It is well settled that attorney’s fees cannot be awarded in the absence of a contract or statutory provision providing for such an award. See Chauvin v. La Hitte, 229 La. 94, 85 So.2d 43 (1956); Mire v. Magnifique Volkswagen, Inc., 274 So.2d 463 (La.App., 3d Cir. 1973).

Accordingly, that part of the judgment in favor of defendants awarding attorney’s fees is reversed and set aside. That part of the judgment dismissing plaintiff’s suit is affirmed. The judgment as rendered by the trial court is amended and recast as follows:

Judgment is now rendered in favor of defendants, Ida Watkins, wife of/and Earl Roberts, and against plaintiff, Federal National Mortgage Association, dismissing plaintiff’s suit at its cost.

Amended and affirmed.

      . The record reveals the monthly installment was reduced from $125.44 to $76.80 for the year 1974 under the interest supplement plan with the government by which the government could reduce or increase the amount due. Counsel for- plaintiff does not dispute that the monthly payments were reduced to $76.80 per month.

      . We point out that counsel of record for plaintiff at the appellate level is not the attorney who tried the case at the trial level.


author: CULPEPPER, Judge. WATSON, Judge

text:
    Vicki Gay WILLIAMS, Plaintiff and Appellant, v. LOUISIANA BOARD (COMMISSION) OF ALCOHOLIC BEVERAGES, Defendant and Appellee.
    No. 5029.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Kaplan & Rivers, by Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Robert L. Roshto, Baton Rouge, for defendant-appellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   CULPEPPER, Judge.

In January, 1975, plaintiff applied to the defendant agency for a retail liquor and beer permit. The application was denied on the grounds that plaintiff had been convicted of a felony, LSA-R.S. 26:79, subd. A(4) and 26:279, subd. A(5). Plaintiff appealed to the district court. After a trial de novo, the district judge affirmed the Board’s ruling and dismissed plaintiff’s suit. Plaintiff appeals.

Plaintiff admits pleading guilty to a felony charge of “attempted crime against nature” in Orleans Parish in 1967. It is urged that plaintiff has been automatically pardoned by the adoption of the Louisiana Constitution of 1974.

Plaintiff relies on LSA-R.S. 15:572 (as amended by Act 17 of the First Extraordinary Session of 1975) and Article IV, Section 5(E)(1) of the 1974 Constitution. Act 17 was passed by the Legislature to implement the provisions of paragraph (E) of Section 5 of Article IV of the 1974 Constitution. It merely outlines the procedure necessary to obtain an automatic pardon and has no effect on the outcome of this appeal.

Article IV, Section (E)(1) of the 1974 Constitution reads in part as follows :

“ . . . However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

The pertinent part of Article I, Section 20 of that Constitution reads:

“ . . . Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”

These provisions have not yet been examined by the appellate courts of this state in the context presented.

The trial judge gave the following reasons for rejecting the plaintiff’s contention:

“The petitioner was convicted of a felony prior to the effective date of the Constitution of 1974. The sentence imposed was completed or discharged prior to the effective date of that Constitution. The Court is informed that the sentence consisted of a fine which was páid.
“The undersigned is of the opinion that the automatic pardon provision of the new constitution is not retroactive. Section 26 of Article 14 of that Constitution provides as follows:
“ ‘Except as otherwise specifically provided for in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this Constitution.’
“Section 23 of Article 14 of the new Constitution provides as follows:
“ ‘All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles, and rights existing on the effective date of “ ‘this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.’
“Article 14 contains the transitional provisions of the 1974 Constitution. Section 26 quoted above opens with the introductory words, ‘Except as otherwise specifically (provided) in this constitution’ (Emphasis supplied). The undersigned finds nothing to indicate that the automatic pardon provision (Article 4, Section 5, (E)(1) or the restoration of citizenship provision (Article 1, Section 20) were intended by the framers of the constitution to extend retroactively to persons who were sentenced prior to January 1, 1975. The plain meaning of the language of the transitional provisions shows an intent to the contrary. Accordingly, the relief sought by petitioner should be denied.”

His decision is further supported by the following comments on Article I, Section 20 of the 1974 Constitution by Professor Lee Hargrave in his article, “The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, pp. 63-64:

“An important addition is the last sentence : ‘Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction of any offense.’ The committee had proposed that ‘full rights’ be restored, but an amendment changed this to ‘full rights of citizenship.’ The change followed a debate concerned with the applicability of multiple offender laws and their enhanced punishments to persons who had completed their sentences. The committee’s intent was that restoration of full rights would not automatically erase the fact of a conviction, and thus multiple offender legislation would be permitted under its proposal. However, to clarify this position, Delegate James Derbes submitted the amendment to change the language to the more limited expression ultimately adopted and thus suggest that multiple offender laws would not be invalidated.
“In fact, in Derbes’ view, his wording would not prevent adoption of legislation prohibiting the carrying of weapons by convicted felons or restricting the issuance of liquor licences to persons who had been convicted of an offense. He explained that he had in mind restoration of basic rights of citizenship, such as the rights to vote, to work, to hold office and to be employed by the state.”

For the reasons assigned, the judgment appealed is affirmed. All costs are assessed against plaintiff appellant.

Affirmed.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge

(concurring):

I agree with the result reached by the majority, applying the clear statutory provisions and the 1974 Constitution of Louisiana. Louisiana Intrastate Gas Corporation v. Edwards, 315 So.2d 380 (La.App. 3 Cir. 1975). However, the application of the non-retroactive provision (Art. 14, Section 26) in this context raises serious constitutional questions relating to due process and equal protection under the 14th Amendment to the Constitution of the United States.

Therefore, I respectfully concur.


author: CULPEPPER, Judge.

text:
    Pauline Andrepont SAVOIE et al., Plaintiffs and Appellees-Appellants, v. Terry V. BILLS, Jr., et al., Defendants and Appellants-Appellees.
    No. 5040.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Dismissed on Joint Motion Oct. 17, 1975.

      Devillier, Ardoin & Morrow by J. Michael Morrow, Eunice, for defendants-appellants.
    Guillory, McGee & Mayeux by Donald L. Mayeux, Eunice, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and WATSON, JJ.
   CULPEPPER, Judge.

The plaintiffs-landowners contend defendants constructed a pipeline across their property without a servitude. Plaintiffs seek $40 per rod for the servitude unlawfully taken, plus damages caused by construction. Alternatively, they seek removal of the pipeline.

Defendants answered, alleging they obtained oral permission from the landowners before constructing the pipeline, and that they secured a written servitude from two of the three landowners after the pipeline was installed. They contend they are indebted only to the landowner who did not sign a written servitude for her one-fourth interest.

At the trial, the district judge, over the objection of defendants, permitted plaintiffs to introduce parole testimony attacking the validity of the written servitude agreement on the grounds of fraud, error and no consideration. Parole evidence by plaintiffs was also admitted to vary the terms of the written agreement.

The judgment rendered grants defendants a servitude, which varies from the written agreement in that the right granted is restricted to the existing 2Y2 inch pipeline which was constructed, and is limited to the service of the one well, from which the line runs to a tank battery, the servitude to terminate upon abandonment of that well. The judgment ordered defendants to pay the three plaintiffs the sum of $3,000 for the servitude granted and damages to date. Plaintiffs’ rights to future damages were reserved.

The defendants appealed, contending essentially that parole evidence should not have been admitted to vary the terms of the written servitude, which was signed by two of the three landowners, and that only the one landowner who did not sign the agreement should have been awarded compensation and damages.

Plaintiffs also appealed, contending the award of $3,000 for the servitude granted should be increased to $8,180. Alternatively, if such increased sum is not awarded, plaintiffs seek the removal of the pipeline.

. The substantial issues are: (1) Was evidence admissible by plaintiffs to prove the written servitude agreement, signed by two of the three landowners, was void for fraud or error, where these vices of consent were not pleaded by plaintiffs? (2) If evidence of fraud or error was admissible, is this evidence sufficient to prove the written agreement is invalid ?

We ultimately conclude the written servitude agreement is invalid for error of fact on the part of the two landowners who signed, and hence that defendants have no servitude for the pipeline which they constructed across plaintiffs’ property. We order that the pipeline be removed and we remand the case for a determination by the district court of the amount of damages to which plaintiffs are entitled.

The plaintiffs are (1) Mrs. Pauline An-drepont Savoie, widow of Ariel Savoie, and owner of a one-half interest in the property; (2) Mrs. Elgie Mae Savoie LaFleur, a daughter of Mr. Savoie, and owner of a one-fourth interest; and (3) Mrs. Patricia Ann Savoie Oubre, also a daughter of Mr. Ariel Savoie, and the owner of the remaining one-fourth interest. Plaintiffs own a large percentage of the royalty for production from Ariel Sa-voie Well No. 1, the well served by the line in question.

In 1972 the owners of the well, defendants Gold King Production Company and Brown & McKenzie, Inc., decided to rework the well for secondary recovery. The other defendant, Mr. Terry V. Bills, Jr., a geologist, coordinated the operation for the well owners. As part of the work, it was necessary to construct a 2\/¿ inch pipeline from the well to a tank battery. Defendants decided to try to obtain permission from plaintiffs to construct the line across their 90-acre tract of land since plaintiffs owned royalty and would benefit from any production.

The owners of the well contracted with South Louisiana Contractors to lay the pipeline. Shorty Rozas, an employee of South Louisiana Contractors, made the first contact with Mrs. Savoie and Mrs. Oubre. These two landowners testified that Rozas told them the owners of the well already had the right to lay the pipeline and that they were going to install it. They say Rozas stated the purpose of his visit was only a courtesy to the landowners to let them know the line was going to be constructed and to try to place the line in a location where it would do the least damage to the crops of the tenant farmer. Mrs. Savoie and Mrs. Oubre say they told Mr. Rozas that if the well owners already had the right to install the line, then they could proceed, but they also told Rozas that the property was owned by the widow and two daughters, and if permission were necessary that all would have to sign the agreement.

The day after Rozas talked to Mrs. Oubre and Mrs. Savoie, he took Mrs. Oubre’s husband on the land for the purpose of showing him where the pipeline would be laid. Mr. Oubre testified that Rozas told him the well owners already had the right to lay the line and that Ro-zas pointed out two possible locations for the line on plaintiffs’ property. Oubre says that he made it clear to Rozas that if permission were required from the landowners, he had no authority to speak for them.

The testimony of Mr. Rozas is in conflict with that of Mr. Oubre. Rozas says he was under the impression that Mr. Oubre was handling the property for the three women, and that Oubre had given permission to proceed to lay the pipeline. Acting on this assumption, Rozas constructed the 2¡4 inch pipeline a distance of about 3,373 feet across plaintiffs’ property.

On or about December 26, 1972, after the pipeline had been completed, Mrs. Sa-voie and Mrs. Oubre were contacted by Mr. Frank Dietlein for the purpose of securing from them a written servitude in the name of Mr. Terry Bills, Jr. Mr. Oubre was also present on that occasion. Mrs. Savoie and Mr. & Mrs. Oubre testified that Dietlein also stated, as Rozas had previously, that the owners of the well already had the right to construct the pipeline. They say he told them the line would be in the location of the “old Colorado Company right of way.” However, Diet-lein also said that because of legal technicalities it was necessary that the landowners sign an additional servitude agreement. These witnesses testified Dietlein assured them that the servitude would not be legal until the third landowner, Mrs. LaFleur, signed, and he asked that Mrs. Savoie and Mrs. Oubre go ahead and sign to save Mr. Dietlein another trip. So Mrs. Savoie and Mrs. Oubre signed the right of way agreement. At the time they signed, they were in error as to several facts. They did not know that the pipeline had already been constructed. It had been misrepresented to them by Mr. Rozas and by Mr. Dietlein that the well owners already had the right to install the pipeline. And, it was their understanding the line was going to be constructed in the location of an old right of way which had been previously granted to the Colorado Company.

After Mrs. Savoie and Mrs. Oubre had signed the servitude, Dietlein then requested they also sign an advance damage release. They then noticed there were no provisions for the payment of any consideration for the servitude or for the damages. They refused to sign the damage release. Additionally, they stated that some arrangement would have to be made with their tenant for damages to his crop. At this point, Dietlein left and went back to his office to draw up a tenant’s release.

Dietlein then returned to Mrs. Savoie and Mrs. Oubre with the servitude, the damage release and the tenant’s release. He left all of these documents with Mrs. Savoie and Mrs. Oubre, with the request that they secure the signature of Mrs. LaFleur and the tenant and return the documents to him.

Mrs. LaFleur testified that the first she knew about the pipeline or the servitude was when Mr. Dietlein’s secretary called her and said she had some papers for Mrs. LaFleur to sign. On that same day, Mr. & Mrs. Oubre came to Mrs. LaFleur with the papers. They discussed the matter and became suspicious of the way it had been handled by Rozas and Dietlein. They could not understand why they were being requested to sign another servitude if the well owners already had a right of way, and they were concerned that no offer had been made to pay them anything for the servitude or damages. The next day, they took the papers to their attorney.

Mrs. LaFleur-never did sign any of the papers. The servitude which had been signed by Mrs. Oubre and Mrs. Savoie was kept by their attorney and was not delivered to defendants. It was never signed by the grantee, Mr. Bills. It is in the record in these proceedings only in compliance with a subpoena duces tecum issued on the request of defendants after this suit was filed.

Dietlein denies that he told Mrs. Savoie and Mrs. Oubre the defendants already had the right to construct the pipeline, or that it would be constructed along the old Colorado Company right of way. Dietlein testified it was his understanding that Ro-zas had already secured verbal permission for the laying of the pipeline, and that he was only to get the plaintiffs’ signatures to the documents.

Plaintiffs and Mr. Oubre testified that they did not know until after they contacted their attorney that the pipeline had already been constructed. Furthermore, Mr. Oubre testified that when he finally saw where the pipeline was laid, it was not in either of the alternative routes which had been shown to him by Rozas. There is no contention by defendants that the pipeline was constructed on the old Colorado Company right of way, if such a servitude exists, and there is no showing by defendants that they have any other servitude for the pipeline in question.

EVIDENCE OF FRAUD AND ERROR INTRODUCED BY PLAINTIFFS WITHOUT PLEADING

The first issue is one of procedure. Plaintiffs’ petition simply alleges that defendants constructed the pipeline across their property without oral or written permission. The petition does not mention that Mrs. Savoie and Mrs. Oubre had signed a servitude, but retained it in their possession, nor do plaintiffs allege that they signed the agreement through fraud or error. Defendants’ answer admitted the construction of the pipeline, but alleges they had oral permission and a written servitude from two of the three landowners for the construction of the pipeline.

At the trial, plaintiffs sought to introduce testimony that the written servitude was void for fraud, error and no consideration. Defendants objected on the grounds that neither fraud nor error had been specifically alleged by the plaintiffs as a grounds to attack the validity of the written agreement. The district judge allowed the introduction of the evidence for the purpose of showing the invalidity of the written agreement for fraud or error.

The ruling of the trial judge in this respect was correct. LSA-C.C.P. Article 852 provides:

“The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers. No replicatory pleadings shall be used and all new matter alleged in exceptions, contradictory motions, and answers, whether in a principal or incidental action, shall be considered denied or avoided.”

Jurisprudence under Article 8S2, and its source articles in our previous Code of Practice of 1870, has firmty established the rule that all new matters alleged in- defendants’ answer are deemed to be denied by the plaintiff, and that plaintiff may assert in bar thereof any grounds of fact or law, as if plaintiffs had specially pleaded them, Patton’s Heirs v. Moseley, 186 La. 1088, 173 So. 772 (1937); Galiano v. Galiano, 213 La. 332, 34 So.2d 881 (1948); Liberal Finance Gentilly, Inc. v. Brister, 152 So.2d 331 (1st Cir. La.App., 1963); McNabb v. Food Town, Inc., 143 So.2d 144 (1st Cir. La.App., 1962); Airhart v. Airhart, 153 So.2d 140 (3rd Cir. La.App., 1963); Bielkiewicz v. Rudisill, 201 So.2d 136 (3rd Cir. La.App., 1967); G. J. Deville Lumber Company, Inc. v. Chatelain, 308 So.2d 428 (3rd Cir. La.App., 1975); Verret v. Norwood, 311 So.2d 86 (3rd Cir. La.App., 1975); and Humphries v. Puritan Life Insurance Company, 311 So.2d 534 (3rd Cir. La.App., 1975).

There is one situation which deserves special comment. In McNabb v. Food Town, Inc., supra, the plaintiff sued for damages for personal injuries received in defendant’s store. The defendant answered, alleging a compromise and release had been signed by plaintiff in consideration of the payment of $320. At the trial, plaintiff admitted signing the release, but sought to introduce evidence to show that it was void because the sum stated in the release was not paid. The district judge sustained an objection to the evidence on the grounds that plaintiff had not pleaded fraud, error or lack of consideration. The Court of Appeal reversed. The Court stated that despite the fact that LSA-C.C.P. Article 856 requires that fraud or mistake “shall be alleged with particularity”, this does not conflict with LSA-C.C.P. Article 852 which prohibits replicatory pleading. The Court held the plaintiff could urge fraud or error or any other grounds of fact or law in bar of the compromise agreement alleged in defendant’s answer.

The decision in the McNabb case was criticized by Professor Henry G. McMahon, 24 L.Rev. at page 304, as being contrary to the jurisprudential rule that a party may not collaterally attack a compromise agreement but must, instead, as in the case of a judgment, bring a direct action to annul. It is noteworthy that Dean McMahon did not criticize the McNabb opinion on the grounds that fraud or error constitute an exception to the rule of Article 852 that replicatory pleadings are prohibited. He disagreed with McNabb only as to the special situation which involves compromise agreements, being of the opinion that a separate suit must be brought making a direct attack on the validity of such contracts.

In Bielkiewicz v. Rudisill, supra, plaintiff sued for personal injuries arising out of an automobile accident. Defendant’s answer alleged a release which had been signed by the plaintiff. In a decision by Judge Tate, now a Justice on our Supreme Court, we decided to follow the McNabb case, although acknowleging that it had been criticized by Dean McMahon. We allowed the plaintiff to attack the release on the grounds of error, although plaintiff had not pleaded this vice of consent.

Defendant relies on Neck v. Neck, 169 So.2d 401 (3rd Cir. La.App., 1964). In that case, plaintiff sued for a partition by licitation of certain immovable property. Defendant filed an exception of no right of action, alleging that plaintiff had sold her interest in the property to the defendant. On the trial of the exception, plaintiff admitted signing the act of sale. However, plaintiff testified she did so through error on the representation of her husband, from whom she was then separated, that the sale would not be culminated until the completion of further negotiations. She also testified that she never received any part of the cash consideration stated in the deed. Defendant objected to the introduction of any parole evidence of fraud or error. The decision of this Court in Neck states that “Parties to a written agreement involving the sale of an immovable may not, in the absence of allegation of fraud or error, introduce parole evidence for the purpose of contradicting, varying or. adding to that written agreement.” The decision sustains the exception of no right of action and dismisses plaintiffs’ suit, without prejudice, however, to her right to bring another suit attacking the act of sale for fraud or error.

We recognize that Neck v. Neck appears to be in conflict with LSA-C.C.P. Article 852 and the jurisprudence cited above. Apparently no argument regarding replication was made in Neck. We think the decision is in error insofar as it is in conflict with LSA-C.C.P. Article 852 and the established jurisprudence. As regards the particular question of whether it is necessary for the plaintiff to specifically plead fraud and error in response to new matter urged in defendants’ answer, the case of Bielkiewics v. Rudisill, supra, from this Court is in direct conflict with Neck. We conclude the holding in Bielkiewicz is correct, and that in Neck is erroneous.

INVALIDITY OF THE SERVITUDE AGREEMENT FOR ERROR OF FACT

LSA-C.C. Article 1819 provides that there is no contract where consent thereto has been produced by error. Article 1820 provides that error is of two kinds, error of fact and error of law. Article 1821 states: “That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” Article 1823 provides in part that error of fact invalidates a contract where the error “was a principal cause for making the contract.” Article 1826 states that error (of fact) as to the principal cause of the agreement does not invalidate a contract unless the other party knew or should have known it was the principal cause.

Jurisprudence under these code articles has established the rule that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause, Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950); North Development Company, Inc. v. McClure, 276 So.2d 395 (2d Cir.La.App., 1973); Jefferson Truck Equipment Company, Inc. v. Guarisco Motor Company, Inc., 250 So.2d 211 (1st Cir.1971) and the authorities cited therein.

Applying these rules to the present case, it is clear that when Mrs. Savoie and Mrs. Oubre signed this servitude agreement, they did so under error of fact as to a principal cause for making the contract. They were of the mistaken belief, based on false representations by Rozas and Diet-lein, that the owners of the well already had a servitude for the line. Furthermore, they believed, because they were so advised by these agents of defendants, that the pipeline would be constructed on a servitude which the operators of the well already owned. The evidence is clear that these two ladies would not have signed the agreement had they known that the owners of the well did not have a servitude for the pipeline which had already been constructed, without their knowledge. Of course, defendants knew that these errors were the principal cause for the signing of the contract by the two landowners. The misrepresentations by Rozas and Dietlein were for the very purpose of securing the signatures.

Having concluded the written agreement is void for error of fact, it is unnecessary for us to consider the further persuasive arguments by plaintiffs that the agreement is additionally void for fraud on the part of defendants’ agents, Rozas and Dietlein.

We find no justification under the facts or the law for the judgment of the trial court which, in effect, rewrites a contract of servitude, which the parties did not intend and to which neither party agreed. It is not within the province of the court to alter or make new contracts for the parties, its duty being confined to the interpretation of the agreements the parties have made for themselves and, in the absence of any ground for denying enforcement, to render them effective, Stack v. Desoto Properties, 221 La. 384, 59 So.2d 428 (1952).

A further reason that the judgment of the district court cannot be allowed to stand is that even if the agreement signed by two of the three landowners were to be held valid as to them, the execution of the servitude would be suspended until the consent of the remaining coproprietor is obtained, or until defendants have followed the procedure for a partition provided by our Civil Code in the situation where a servitude has not been signed by all of the coproprietors of an estate. See LSA-C.C. Articles 738-742.

The defendant, Terry V. Bills, Jr., makes an additional argument that plaintiffs have no cause of action against him because he assigned whatever rights he had in the pipeline to the other two defendants. There is no executed copy of any such assignment in evidence. Bills did testify that he had assigned his interest in the line to the other defendants. Regardless of whether there is such an assignment, Bills is nevertheless liable in solido with the other defendants for the illegal construction of this pipeline on plaintiffs’ land. Both Rozas and Dietlein were acting under his instructions. It was through the actions of Bills, as well as the other two defendants, that the line was installed. We conclude plaintiffs both alleged and proved a cause of action against Bills.

For the reasons assigned, the judgment appealed is reversed and set. aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plamtiffs and against the defendants, in solido, ordering that defendants remove from plaintiffs’ land the pipeline in question. This case is remanded to the district court for a determination of the damages to which plaintiffs are entitled because of the illegal construction of the pipeline on their land. All costs of this appeal are assessed against the defendants. Assessment of costs in the district court must await a final judgment there.

Reversed and remanded.


author: WATSON, Judge. HOOD, Judge

text:
    AMERICAN SECURITY INSURANCE COMPANY, Plaintiff-Appellee, v. GRIFFITH’S AIR CONDITIONING et al., Defendants-Appellants.
    No. 5052.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearings Denied Aug. 28, 1975.
    Writs Refused Oct. 24, 1975.

      Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, for defendant-appellee-appellant.
    Pugh, Boudreaux & Gachassin by Nicholas Gashassin, Jr., Lafayette, for defendant-appellant-appellee.
    Brame, Bergstedt & Brame by Joe A. Brame, Lake Charles, for plaintiff-appel-lee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

This is a subrogation claim by plaintiff, American Security Insurance Company, against defendants, Steve and Shirley Griffith, doing business as Griffith’s Air Conditioning, and Fedders Corporation, for a fire loss paid to Mrs. Edna Porteau as a result of a fire demolishing her residence. A third party demand was filed on behalf of Griffith against Fedders, contending that Fedders would be liable to Griffith for any sum for which Griffith was cast.

The trial court gave judgment in favor of plaintiff and against defendants, jointly and in solido, in the amount of $22,925.00 and this appeal by both defendants resulted. There is no controversy as to the amount of the loss, but defendants vigorously contest their liability.

There are two decisive issues to be resolved, and these are: (1) did defendants’ negligence cause the fire? and (2) did plaintiff’s concealment or destruction of certain evidence relieve defendants of liability ?

The trial court has accurately and succinctly stated the basic facts of the case and we will quote these findings with approval :

“The evidence preponderates that Mrs. Edna Porteau moved into her newly constructed home the last week of October, 1972. This was a frame house constructed by James Porteau, her son, who was a building contractor. The house consisted of a carport, utility room, kitchen, living room, three bedrooms and a bath. Griffith’s Air Conditioning Service installed a Fedders central heating and air conditioning unit in a small closet near the center of the home with a thermostat control in the hallway (See D-l). The unit was heated by gas and the controlled air was discharged to the rooms through duct work located in the attic.
“After Mrs. Porteau moved into the house, she testified that she had trouble getting the heating system to function properly. She stated that when the heater would ignite, it would do so with a loud noise and then emit a ‘pop and snap’ sound. She called Griffith’s Air Conditioning and reported the complaint. Two service calls were made by Griffith’s men. She stated that the operation of the heater continued about the same after the calls. She testified that the noise of the heater was such that she turned it off at night as it would keep the family awake. Mrs. Porteau’s sister, Mrs. Parker, who lived next door, and a son, Frank Porteau, corroborated this testimony.
“On the morning of December 28, 1972, Mrs. Porteau left the home to spend the day in Reeves, Louisiana. One son, Frank, went next door to Mrs. Parker’s house to stay with her and help her with her invalid husband. Before leaving, Mrs. Porteau turned the thermostat down to 60°. At 5:30 P.M. Frank Por-teau, 14 years of age, and who was next door at Mrs. Parker’s home, went to the Porteau home to get a tape player. As he entered the house through the kitchen, he heard the telephone ringing in a bedroom. (Exhibit D-l, Bedroom #2). As he left the kitchen he started down the hall to answer the phone and ■ as he went by the thermostat he turned it up to 80 or 85 degrees. He went into the bedroom to answer the phone. The caller asked for a certain telephone number. He left the phone to get the number as requested. As he entered the hall he found it ‘full of smoke’. He went down the hall and upon looking into a bedroom saw flames on the wall and door of the room. He ran out of the house and across the street to call the fire department. As he came out of that house he saw the window of the flaming bedroom blow out. He estimated that he was in the house approximately two minutes or less. The house was totally destroyed before the fire department arrived.
“Steve Griffith testified that he installed the unit on behalf of Griffith’s Air Conditioning. He said he made two service calls after installation. He stated he recalled no complaints about the heater. He stated that his service calls were for the purpose of checking the air conditioning. He stated that he did check the heating unit however, and it was working satisfactorily. This Court concludes that Griffith was mistaken or told an untruth about the purpose of the service calls. These calls were made either in November or December of 1972. It is highly unlikely that air conditioning complaints would be filed during those months of the year. Furthermore, Mrs. Porteau nor her sons have any interest in the outcome of this suit. She has been paid for her loss.
“Defendants called an engineer who is employed by Fedders, Mr. Kizlowski. This engineer explained the principal features and mechanism of the heater and the tests applied by Fedders. He felt that a fire could not have started in the one and a half or two minute interval between the time the son turned the thermostat up and the time he saw the flames. He did state that it was possible to have a fire caused by a ‘roll out’ of the gas from the heater but this would take more than two minutes to materialize.
“George Pappas, an expert for Shilstone Testing Laboratories, stated that the unit should have had more louver area on the door of the heater closet for intake. He stated that for the fire to burn through the wall from the heater area would take 10 to 15 minutes.
“The testimony of these experts that the heater could not have caused the fire is based primarily on the conclusion that the fire started after the son came into the house, turned the thermostat up, answered the phone, left the phone, saw flames and left. This took one and a half to two minutes. It must be noted that when Mrs. Porteau left that morning she had turned the thermostat down to 60 degrees but didn’t turn the unit off. It was stipulated that the weather bureau in Lake Charles reported a temperature of 59 degrees at 4:00 P.M. and 57 degrees at 5 :00 P.M. The heater, set orí 60 degrees, could have activated itself before the boy came into the house.” (TR. 91-94)

In addition to these facts found by the trial court, we note certain other facts reflected by the record upon which the trial court did not comment. As a whole, the record indicates considerable difficulty with the central heating unit, manufactured by Fedders and installed by Griffith, during the short period the house was occupied, that is, from the last week of October until December 28. For example, the contractor who built the house testified that it was very difficult to keep the pilot light ignited. The other witnesses, who testified for plaintiff but who were not interested in the outcome of the case, emphasized the noise made by the heating unit. They described it variously as sounding like firecrackers, popping, snapping, a locomotive popping, metal popping, or like someone beating on a piece of tin. Also, the evidence in the record is convincing that the heating unit was installed by Griffith without louvers or other openings on the door to the closet. Steve Griffith testified that he was not aware that the installation book supplied by Fedders calls for such openings. The installation book filed in the record clearly requires two openings in the door. (See page 4 of D-3). Even the experts testifying on behalf of the defendants admitted that the provision of openings on the door to the heater closet would have been a better (meaning safer) installation.

As to the factual background on the issue concerning destruction of the evidence, we will note merely that both defendants complain that plaintiff authorized the removal of the burned heating unit from the premises following the fire. The record reflects that this was done following authorization by the representative of the insurance company some six weeks after the fire. The uncontradicted testimony of Thomas J. Rabalais, who adjusted the fire loss for plaintiff, is that he notified defendant Griffith of the subrogation claim by letter of January 11, 1973, about two weeks after the fire. This testimony is confirmed by a copy of the letter which appears in the record. Griffith admitted that on at least one occasion following the fire he personally went to the premises and saw the remains of the unit which he described as being burned and melted.

Likewise, Fedders has proved no intent or design by plaintiff to destroy or conceal the evidence; any complaint by Fedders would appear to be against Griffith. Therefore, we find no merit to the contention by defendants that plaintiff is precluded from recovery on this basis.

As to defendants’ liability, we agree with the trial court that the applicable law, at least in part, is found in Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La., 1972). The plaintiff’s burden of proof and the evidentiary import of the doctrine of res ipsa loquitur are described in detail in Boudreaux. As we understand these rules, they are as follows:

First, the circumstantial evidence required in civil negligence cases need not negate all other possible causes of injury if the proof excludes other reasonable hypotheses with a fair amount of certainty so that it is more probable than not that the harm was caused by the conduct of defendant.

Second, the doctrine of res ipsa lo-quitur (usually “the thing speaks for itself” and here meaning that the facts warrant an inference of negligence) sometimes applies as a rule of circumstantial evidence, obviating the necessity of proving just what negligent act caused the injury.

Third, the basic question to be decided is whether the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident.

And finally, Boudreaux concludes that this is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probably than not, his injury was caused by the negligence of the defendant.

We have no difficulty in concluding, as did the trial court, that the fire originated in the central heating unit. A study of the record reflects that this is far and away the most plausible explanation of the occurrence. Then, applying the rules of Boudreaux, we believe that it is obvious that a properly designed and constructed unit, properly installed, would not cause a conflagration such as occurred here. The doctrine of res ipsa loquitur is properly applied.

We know that the door to the heating unit was not properly vented or louvered, but the evidence is not conclusive that this alone would cause a fire. It is not necessary, under Boudreaux, to isolate the acts of negligence by defendant or defendants which caused the fire.

We find that the circumstances of this case are analogous, to those of Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704 (La., 1948) where it was held that the doctrine of res ipsa loquitur was properly applied to a situation where a gas-burning heater caused a fire. While the Plunkett heater had been installed only two days prior to the fire, and the heater in the instant case had been installed for two months, we find no basic distinction. Also, see Saunders v. Walker, 229 La. 426, 86 So.2d 89 (La., 1956).

As to the liability of Fedders, the doctrine of res ipsa loquitur is also applicable. This was a new unit; and by manufacturing and selling such a unit, Fedders impliedly warrants that it is safe and fit for its intended use. Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., et al, 315 So.2d 660 (La., 1975). In our opinion, the responsibility of the manufacturer and that of the installer of complicated machinery using natural gas and electricity are tightly woven together. Where the evidence establishes that the new device, newly installed, caused a fire, both installer and manufacturer should be cast for damages unless one or both prove freedom from fault or one proves that the other was solely responsible.

The joinder of multiple defendants does not bar res ipsa loquitur. McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La., 1973).

Fedders has not exonerated itself from negligence and liability; Griffith has not exonerated itself from negligence and liability. Neither has proved that it was the negligence of the other which was responsible for the fire. Therefore, we find as did the trial court that the defendants are liable in solido. The third party demand of Griffith against Fedders was properly denied.

The judgment of the trial court is affirmed and costs are taxed against appellants.

Affirmed.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I am unable to agree with my colleagues that the doctrine of res ipsa loquitur is applicable.

First, I think plaintiff has failed to show that the fire was caused by the heating unit or that there was any connection at all between that unit and the fire. In my opinion, the overwhelming preponderance of the evidence establishes that the fire was not, and could not have been, caused by the heating unit under the circumstances shown here. Several other possible causes of the fire were shown, none of which related to the heating unit, and any one of which was a more probable cause than those suggested by plaintiff.

In order for plaintiff to invoke res ipsa loquitur against either the manufacturer or the installer of the heating unit, it must first establish that the fire was caused by that unit. It at least must show some causal relationship between the heater and the loss which plaintiff sustained. The mere fact that a fire started in a bedroom of the house does not justify a presumption that it was caused by the central heating unit, especially when the evidence shows that the heating unit had not been used that day and that there was no fire in the heating unit closet when the blaze was discovered in the bedroom. Since plaintiff has not established any connection between the heating unit and the fire, there can be no presumption of negligence on the part of either of the defendants, and plaintiff thus is not entitled to invoke res ipsa loqui-tur against either of them.

Second, assuming that the fire was caused by a defect in the manufacture or installation of the heating unit, that fact does not justify a presumption that the manufacturer and the installer were negligent, thus invoking res ipsa loquitur against both of them.

In Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), our Supreme Court said:

“. . . On the other hand, application of the principle (res ipsa loquitur) is defeated if ‘an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.’ . . .”

In the instant suit, assuming that the heating unit caused the fire, it is as reasonable to infer that the cause of the loss was a defect in the manufacture of the unit as it is to presume that the fire resulted from the improper installation of that unit. It is not likely that the loss resulted from the joint negligence of both defendants. Res ipsa loquitur thus cannot be applied as against either defendant.

The majority cites McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973), as authority for its holding that the joinder of multiple defendants does not bar res ipsa loquitur. In McCann, plaintiff sued for injuries sustained by his minor son while the latter was being treated in a hospital. He joined as defendants the doctor and the hospital, and their insurers. The trial court sustained exceptions of no cause of action filed by the doctor and his insurer, and the sole issue presented on appeal was whether res ipsa loquitur could be applied against the doctor and his insurer. No issue was presented as to whether the doctrine could be applied against two alleged joint tort feasors, only one of which likely was negligent. In reversing the judgment of the trial court, the Supreme Court said:

“ . . . The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury . . .” (Emphasis added).

I agree that res ipsa loquitur may be applied to two joint tort feasors if the circumstances are such that both of those defendants necessarily must be held to be liable if there is any liability at all. In my view, however, res ipsa loquitur should not be applied against two defendants where it would be as reasonable or as plausible to presume that one of them, and not the other, was negligent.

In this case, assuming that the fire was caused by the heating unit, it is “as reasonable” or “as plausible” to infer that the fire was caused by the negligence of Griffith as it is to presume that it was caused by the negligence of Fedders. And, it is as reasonable to presume that it was caused by Fedders as by Griffith. Under those circumstances, res ipsa loquitur should not be applied to either of the defendants.

The majority erred, I think, in applying the doctrine of res ipsa loquitur in this case, and in decreeing both defendants to be liable to plaintiff, in solido, when there admittedly has been no proof of negligence on the part of either of those parties, when no ground has been shown for a presumption of negligence as to either of them, and when in any event it is highly improbable that the fire could have been caused by the joint negligence of both the manufacturer and the installer.

Finally, I think res ipsa loquitur cannot be invoked here because plaintiff destroyed the heating unit after the fire and before defendants had an opportunity to examine it or to use it as evidence in the case. The heating unit, as it existed after the fire, was the most important piece of evidence in existence which would or might have shown whether there was a defect in that unit, or whether there was any causal relationship between that appliance and the fire. Plaintiff destroyed that evidence within a few days after the fire occurred, before defendants examined it.

The majority justifies this action on the part of plaintiff by stating that the unit was not destroyed until “some six weeks after the fire,” that plaintiff’s adjuster notified defendant Griffith of the subrogation claim before the unit was destroyed, and that Griffith admitted that he went to the premises and saw the remains of the unit before it was removed. Their reasoning is that one of the defendants, Griffith, had an opportunity to see the unit before it was destroyed, and that both defendants thus are barred from claiming that that important evidence was concealed or destroyed by plaintiff. My understanding of the testimony is that the heating unit was removed within a week or ten days after the fire, long before defendants had any idea that a claim might he asserted against them. Griffith testified that he drove by the scene of the fire shortly after the house had burned, but that he remained in his car, that he did not examine the heating unit or any other part of the remains at that time, and that the next time he went to the scene the heating unit had been removed. In any event, Griffith did not get an opportunity to examine that unit, and the majority does not even sug- . gest that Fedders had any such opportunity.

Plaintiff, after destroying the best evidence obtainable to explain whether the heating unit was defective or played a part in causing the fire, now takes the position that it has no evidence to establish the cause of the fire, that the explanation of the loss is exclusively within the knowledge of defendants, and that plaintiff thus is entitled to invoke res ipsa loquitur.

In Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971), Justice Hamlin, in a concurring opinion, stated:

“I note that in Footnote No. 3 of the majority opinion, it is stated: ‘Unfortunately, Moorehead’s employees, upon removing the broken fulcrum, had sent it to the city dump on the day of or the day after the accident. Therefore, this fulcrum could not be located when searched for three weeks after the accident.’ This statement in the Footnote, in my view, is very important in resolving the issues in this case.
“Moorehead’s employees were the Company’s agents; Moorehead, through its employees, disposed of this vital evidence. It is my further view that Moorehead should have been more attentive to this accident. It leaps to the mind that this was crucial evidence upon which it could have built a defense in this case. Failing to preserve this evidence, it must bear the result of its own inattentiveness, negligence, laches, call it what one will . . . .”

In Simon v. Ford Motor Company, 282 So.2d 126 (La.1973), the Supreme Court expressed substantially the same views in the following language:

“Considering the heavy burden on Ferrington to exculpate himself from any fault, we are unable to say that the failure of himself and his insurer to preserve the defective ball joint, immediately claimed to be the cause of the accident and as a factor exculpating himself from negligence, is without consequence. See concurring opinion (Hamlin, J.) in Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166, 171 (1971). Ferrington removed the defective joint when he repaired his vehicle about three weeks after the accident, and he threw it away. By doing so, he deprived the person- injured because of the vehicle defect of any opportunity to show the' cause of the defect, as well as of an opportunity for himself to corroborate (if true) by objective evidence his own self-serving testimony of periodic lubrication.”

In the instant suit, if plaintiff had not destroyed the heating unit and had been able to establish by direct positive evidence a causal connection between that unit and the fire, then plaintiff may have been able to recover against one of the defendants, but certainly it could not have recovered against both of them. The majority, however, has reached what I consider to be the untenable conclusion that since plaintiff has destroyed the heater and has no evidence at all to show the cause of the fire, it can recover against both defendants, in solido. I cannot agree with that conclusion.

For these reasons, I feel that the trial court erred and that the judgment appealed from should be reversed.

I therefore, respectfully dissent.

      . For simplicity we will refer to this defendant^) as “Griffith”; the precise legal status is not clear in the record and appears variously in the pleadings.


author: WATSON, Judge.

text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, v. Joseph (Joe) HUVAL et al., Defendants-Appellees.
    No. 5063.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Refused Oct. 24, 1975.

      Davidson, Meaux, Onebane & Donohoe by J. J. Davidson, III, Lafayette, for plaintiff-appellant.
    Bean & Rusch by James W. Bean, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Southwest Louisiana Electric Membership Corporation, hereafter “Slem-co”, filed this expropriation suit to acquire a servitude for electric transmission lines with a capacity of 138,000 volts. Made defendants were the landowners, Joseph (Joe) Huval, Mrs. Chester Chiasson, Mrs. John B. Baudoin, Mrs. Herbert C. Calkins, Patrick Carl Huval, Mrs. Moore Gucher-eau, Mrs. Eucharist Mouton, Mrs. Dupre J. Lapointe and Joseph Ernest Huval. The necessity of the taking was not contested. The value of the land and the question of severance damages were litigated. Before the taking, defendants’ land included approximately 503 acres.

The trial court awarded defendants $51,224.40 or $3,400 per acre for 15.066 acres. Although only 14.4 acres were actually within the right-of-way, two tracts of .395 acre and .271 acre were isolated from the rest of defendants’ property and rendered completely unusable. They were thus included in the property taken. Severance damages were fixed at $50,560.38: 30% of the value of $3,400 an acre assigned to the 49.569 acres lying within 200 feet on each side of the servitude. Expert witness fees for defendants’ experts were fixed at $750 for Preston Babineaux and Joe Anzalone; $300 for Jesse Guidry; and $100 for Emery Domingue.

Slemco has appealed, contending that the trial court erred: (1) in finding $3,400 per acre to be the fair market value of the subject property; (2) in finding defendants’ property suffered severance damages; and (3) in awarding Joe Anzalone an expert witness fee of $750.

I. The conclusion of the trial court that the subject property is worth $3,400 per acre is well supported by the evidence. All witnesses agreed that the highest and best use of the property is as a residential subdivision.

Gene N. Cope and Dan C. Ritchey testified on behalf of plaintiff. Both appraised the property at $3,000 per acre. One of the comparables considered by Cope was a sale on May 15, 1972, almost exactly two years before the taking of the subject property. This sale of 96 acres was at one time a part of the parent tract and sold for $3,240 per acre. Cope testified that the particular servitude sought here by Slemco would leave virtually no rights in the naked owners because the proposed construction included an H-frame central line and two distribution lines, one on each side of the main line. Cope included the two small triangular portions of .395 acre and .271 acre in the servitude itself, the total area effectively taken being 15.066 acres.

Ritchey testified that the May 15, 1972, sale was not actually at $3,240 an acre but closer to $2,500 per acre because no interest was paid for five years by the buyer. He said that there had been terrific escalation of property values in the area of the taking which could be conservatively and arbitrarily figured at 8% a year. Ritchey agreed with Cope’s evaluation of $3,000 per acre.

Preston J. Babineaux, Joe Anzalone and Emery Domingue testified for defendants. The parties stipulated that the testimony of Jesse J. Guidry would be the same as that of Babineaux.

Babineaux used various comparable sales to estimate'the value of the subject property at $4,000 per acre. Anzalone used no comparable sales but testified on the basis of extensive experience in real estate development that the subject property was worth $4,500 per acre.

The trial court heard and weighed the conflicting evidence of the various witnesses as to the value of the property. We find no error in its conclusion that the property is worth $3,400 an acre.

II. Plaintiff contends that the trial court erred in finding that defendants proved severance damages to the subject property.

The trial court found severance damages of 30% to the area lying within 200 feet on both sides of the right-of-way. This is in accord with our recent decision in Southwest Louisiana Electric Mem. Corp. v. Beck, 299 So.2d 411 (La.App. 3 Cir. 1974); writ denied La., 302 So.2d 30; a case involving virtually identical facts.

Appraiser Cope introduced photographs of homes in the Lafayette area, stating that these photographs show no reluctance on the part of the public to use property adjacent to electric transmission lines. Cope admitted that the photographs did not prove that the property had not diminished in value but only that people would live next to transmission lines. Cope also testified as to various comparables allegedly showing no diminution in value as a result of the existence of power lines.

Cope did state that, given a choice between two pieces of property, one with a power line and one without, his personal preference would be for the one without the power line. He agreed that the majority of people perhaps had the same preference. He admitted that the market for such property might be limited.

Ritchey confirmed Cope’s testimony that there is no public reluctance to live adjoining power transmission lines. Ritchey also testified that, given a choice between two equal pieces of property, he would prefer the one without the servitude. He said that a lot of people in the marketplace will not buy property burdened with a servitude, and that, given two identical pieces of property, one without a servitude would be easier to sell.

Anzalone testified that the public is afraid of high voltage power lines. Anza-lone testified on the basis of extensive experience in real estate that electric transmission lines damage the value of subdivision property. He felt that the subject 500 acre tract would be damaged by the servitude to the extent of $100,000. He said it was difficult to find a true comparable because tracts of that size were not available for sale.

Babineaux testified that there was a 30% loss in value of the subject property as a result of the taking. He noted that a subdivision with an electric transmission line going through it results in lower priced homes than you have in a subdivision without such lines.

Emery Domingue, a civil engineer and registered land surveyor, said he had extensive experience in laying out subdivisions. He testified that this servitude would reduce the yield of lots per acre in subdividing the subject property by 24%.

The testimony of these experts confirms the obvious, that the immediate proximity of high voltage electric lines reduces the desirability and value of property for residential purposes. Southwest Louisiana Electric Mem. Corp. v. Beck, supra.

In weighing the evidence as to severance damages, the trial court pointed out that Cope’s experience in the sale and purchase of realty is limited whereas Babineaux has considerable expertise in subdivision development and buying and selling real estate. The trial court concluded that severance damages of 30% to the area lying within 200 feet of either side of the right-of-way was proved by a preponderance of the evidence. We agree.

III. Slemco contends that Joe Anzalone did not make an actual appraisal of the subject property but merely testified as to his unsupported opinion. Therefore, plaintiff contends that this fee should be reduced from $750 to $150.

While it is true that comparable sales are not essential as a basis for an appraiser’s expert opinion, [State, Department of Highways v. Sotile, 309 So.2d 873 (La.App. 1 Cir. 1974)], there is no showing that Anzalone spent time which would justify allowing a fee for out of court expert services. An expert who makes no particular preparation but merely appears and testifies is limited to remuneration for his court appearance. Considering the circumstances, we think the trial court abused its discretion in awarding $750 and we reduce the expert witness fee of Anzalone to $150. It is ordered, adjudged and decreed that the expert witness fee of Joseph C. Anzalone be fixed at $150.

For the foregoing reasons, the judgment of the trial court is affirmed, except as amended as to the witness Anzalone’s fee. All. costs of this appeal are assessed against plaintiff-appellant, Southwest Louisiana Electric Membership Corporation.

Amended and affirmed.

HOOD, J., dissents from that part of the judgment rendered by the majority which awards severance damages, but concurs in the remainder of that judgment.