source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Succession of Dr. Clovis J. MELANCON.
    No. 5420.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      Tate & Tate by Donald J. Tate, Mamou, for executor-appellant.
    John Sturgeon, Ferriday, J. Jake Fonte-not, Mamou, John Saunders, Mamou, for appellee.
    Before HOOD, GUIDRY and PETERS, JJ.
   GUIDRY, Judge.

This is an action for a declaratory judgment interpreting the effect of certain additions and lineations in the last will and testament of Dr. Clovis J. Melancon, deceased. The suit was instituted by Dr. Frank P. Savoy, the executor of his last will and testament. All legatees, being the only parties in interest, were made defendants.

Dr. C. J. Melancon, on August 24, 1971, executed a three page statutory will pursuant to LSA-R.S. 9:2442. Included in this will were legacies numbered II, 2.1 (F) and, II, 2.1 (I) which read as follows:

“(F) To each child of William Ward, living at my death, including en-fant en ventre sa mere, the sum of T wenty T houscmd ( $20,000.00) Dollars. . . . ”
“(I) To Linton Allen, the sum of Five Thousand and Five Hundred ($5,500.00 Dollars."

At the time of probate each of the aforesaid legacies were lined out. In the margin and opposite the legacy to the William Ward children appears the notation, “I revoke Section F” and under this notation is the signature of Dr. C. J. Melancon. Interlined through the legacy to Linton Allen appears the notation, “This item Revoked” followed by the signature, Dr. C. J. Melancon. Neither notation is dated. There is no question but that the markings, notations and signatures were all made by the testator, Dr. C. J. Melancon.

The trial court held these lineations and notations to be without effect and as not constituting a valid revocation of the aforesaid legacies. The trial court reasoned that since the attempted revocations were not clothed in the form of any type of testament, codal or statutory, that same were not valid. The trial judge relied on the provisions of R.C.C. Article 1692 to support this conclusion. The executor,

Dr. Savoy, has appealed from the trial court judgment.

The issues presented herein are:
(1) Do the provisions of the Revised Civil Code with regard to the revocation of testaments apply to statutory wills;
(2) If such codal provisions do apply was Dr. Melancon’s attempted revocation made in one of the forms prescribed for testaments and clothed with the same formalities; and,
(3) If such codal provisions are not applicable do the notations, etc. constitute a valid revocation of the Ward and Allen legacies.

The statutory form of will (LSA-R.S. 9:2442) derives from the common law. The statute authorizing this type of will was enacted so as to provide another and more simple type of will. In adopting this common law form of will it was the purpose of the legislature to evade the strict standards of form required of civil law testaments. Succession of Porche, 288 So.2d 27 (Sup.Ct.1973); and, Succession of Morgan, 257 La. 380, 242 So.2d 551 (La.1971).

Both at the common law and in our own civil law “revocability” is an essential characteristic of a will. The testator retains the power of revocation until his decease. (R.C.C. Article 1691; 79 Am.Jur.2d 500). Another principle, uniformly applied .both at the common law and in civilian jurisdictions, is to the effect that the revocation of a will is a matter of statutory regulation and that such statutes are mandatory and strictly pursued. (95 C.J.S. Wills §§ 263 and 269 ; 79 Am.Jur.2d 502). Partial revocations • are likewise permitted both in some common law jurisdictions and under our own civil law, however, again the authority for a partial revocation is generally regulated by statute which is to be strictly pursued. (95 C.J.S. Wills § 279; R.C.C. Article 1691). It is generally held at common law that if a statute provides for revocation but fails to provide any particular mode to be followed, the method of cancellation is left to the judgment of the testator and any act done, which in common understanding is regarded as a cancellation when done to any other instrument, must be considered as a cancellation when done to a will or any part thereof. (95 C.J.S. Wills § 280(4)).

LSA-R.S. 9:2442 does not provide that the statutory will is revocable in whole or in part nor does it provide any method for general or partial revocation. This being so, considering the basic concepts of the common law and civil law that a testament is revocable during the lifetime of the testator and that the manner of revocation, both general and particular, is regulated by statute which is strictly pursued, it must have been intended by the legislature that the provisions of our civil code which regulate these matters should apply to the statutory will. That this was the legislative intent seems evident by the action of the legislature when it statutorily overturned two decisions of our appellate court, holding that certain provisions of our civil code having general application to all types of wills were not applicable to statutory wills, i. e., Succession of Gordon, 257 La. 1086, 245 So.2d 319 (S.Ct.1971) and Woodfork v. Sanders, 248 So.2d 419, writ denied 259 La. 759, 252 So.2d 455 (4th Cir. 1971). In Succession of Gordon, supra, the court held that since LSA-R.S. 9:2442 did not expressly require a statutory will to be dated, as did other forms of wills provided for in the Civil Code, a date was not essential to the validity of such will. In Woodfork v. Sanders, supra, the court held that the provisions of R.C.C. Article 1592, which prohibits heirs and legatees from being witnesses to wills, had no application to the statutory will. By Act 246 of 1974 LSA-R.S. 9:2442 was amended so as to specifically provide that a statutory will be dated and so as to provide that such will be executed in the presence of two competent witnesses not otherwise disqualified under Articles 1591 and 1592 of the Civil Code.

The amendment of LSA-R.S. 9:2442 following Succession of Gordon, supra, and Woodfork v. Sanders, supra, appears to constitute a clear legislative expression that the provisions of our civil code generally applicable to all wills and not in conflict with LSA-R.S. 9:2442, likewise apply to the statutory will. We so hold.

Having answered the first question in the affirmative we next determine whether or not Dr. Melancon’s attempted revocations of the subject legacies were made in one of the forms prescribed for testaments, and clothed with the same formalities as is required by R.C.C. Article 1692. Obviously they were not for the lineations and notations although made by the hand of the testator and signed, same are not dated nor were they executed in the presence of the requisite number of witnesses or the required number of witnesses and a Notary Public.

In spite of the fact that these attempted revocations do not comply with the formalities for testaments, codal or statutory, able counsel for the executor strongly urges that such revocations are valid under the provisions of R.C.C. Article 1589 and under the interpretation given to the provisions of that article by this court in Oroszy v. Burkard, 158 So.2d 405 (3rd Cir. 1963). We find no merit in this contention. We recognize that Article 1589 of the Revised Civil Code and the jurisprudence interpreting the provisions thereof recognize that the writer of an olographic will may alter or completely change testamentary dispositions in his handwritten testament without affecting its validity so long as the alterations or additions are made by the hand of the testator. In such cases it is not necessary that the testator’s approval appear on the face of the will itself. Succession of Butterworth, 195 La. 115, 196 So. 39; Oroszy v. Burkard, supra. This informality regarding change in testamentary dispositions is not allowed, however, in other forms of wills rather as to such other forms of wills the provisions of R.C.C. Article 1692 apply.

We determine that the provisions of R.C.C. Article 1589 are peculiarly and exclusively applicable to erasures and additions made in olographic testaments. The olographic will is an informal testament that needs no attestation by witnesses and/or a notary public, the only requirement for its validity being that it be completely written, dated and signed by the testator. R.C.C. Article 1588.

It is well settled in the jurisprudence that even though a will is cast in one form, for example, a statutory will, the testator may effect a valid revocation of the statutory testament, or any disposition therein, through the use of a valid olo-graphic will entirely written, dated and signed by the testator. Hessmer v. Edenborn, 196 La. 575, 199 So. 647 (La.1941). Had Dr. Melancon supplied a handwritten date to his notations and signature he would have validly revoked the bequest to the Ward children and to Linton Allen, however, Dr. Melancon’s alteration, as written, is clearly not in any testamentary form recognized under Louisiana law. R.C.C. Article 1588; Succession of Walsh, 166 La. 695, 117 So. 777.

Having determined that the provisions of the Revised Civil Code with regard to the revocation of testaments do apply and that the attempted revocations by Dr. Melancon were without effect for want of form we do not reach a discussion of the third issue.

For the above and foregoing reasons the judgment of the district court is affirmed, all costs to be borne by the Succession.

AFFIRMED.


text:
    Annie Edwards LANDRY, Plaintiff-Appellant, v. HAZELWOOD & SANTILLO, INC., et al., Defendants-Appellees.
    No. 5426.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      Alfred Ray Ryder, Oberlin, for plaintiff-appellant.
    •Lewis & Lewis by Seth Lewis, Jr., Opelousas, for defendant-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

Plaintiff seeks to recover damages for personal injuries sustained when she fell while shopping in a grocery store owned and operated by the defendant, Hazelwood & Santillo, Inc. The American Insurance Company, as the liability insurer of Hazel-wood & Santillo, Inc., is also made a party defendant. The trial court found for the defendant and dismissed her suit at her costs. Plaintiff perfected this appeal.

Plaintiff contends that the trial judge committed error in that although he found that the defendant store owner created and maintained a dangerous condition on its premises he failed to find that this dangerous condition was the cause of plaintiff’s fall and resulting injuries.

The facts of this case are substantially without dispute. On the date of the accident, i. e., August 8, 1974, plaintiff and her common-law husband were shopping in defendant’s grocery store. After making a purchase at the meat counter which was located in the rear of the building she began walking to the front of the store for the purpose of paying for the meat and groceries which she had bought. As plaintiff proceeded to the front of the store down a center aisle she was preceded by her husband, Eddie Thierry. When plaintiff reached a point about four or five feet from the meat counter she slipped or tripped and fell. Plaintiff attempted to break her fall by grabbing her husband who was to her front, however her effort was unsuccessful. Following plaintiff’s fall Eddie Thier-ry summoned another shopper, Alphonse Pitre, and the store manager, Lionel Dupre, to assist him in getting plaintiff to her feet. The only factual dispute concerns what, if anything, caused the plaintiff to fall and whether or not she fell on her back or to her knees. Plaintiff contends that she slipped or tripped when her feet came in contact with a loose piece of plywood which had been laid in the aisle by the owner or manager to cover a weak place in the floor causing her to fall backwards onto her back. Defendant denies that plaintiff’s fall was precipitated by the loose board and asserts that she simply fell to her knees while walking through no fault or negligence on the part of defendant.

It is not disputed that in the aisle where plaintiff was walking and in close proximity (one or two feet) to where plaintiff lay on the floor after her fall there was laying a piece of plywood approximately l/j" thick and 18" square. This piece of plywood, which was not nailed or otherwise fastened to the floor, had been placed there to cover a weak spot in the floor. There is no positive evidence as to who put the loose plywood over the defect in the floor, however, it is clearly established by the record that it had been maintained in the same place for some time and that the store manager was aware of such condition.

The trial court determined that the presence of this loose board laying in the aisle regularly used by the store’s customers was a dangerous condition and that such condition was well known to the storekeeper and/or his manager. In this regard the trial judge had this to say:

“Under the laws of our state, the owner of a store is not an absolute insurer of the safety of the people who patronize his establishment. He is, however, responsible for his lack of diligence in protecting the patrons, and if the evidence should reveal that Mrs. Landry actually tripped over the board or that the board slipped out from under her and that as a result thereof she was injured, then she is certainly entitled to recover. ...”

We believe this finding by the trial court to be eminently correct. In the case of Hay v. Sears, Roebuck & Company, 224 So.2d 496, 498 (3rd Cir. 1969) this Court defined the standard of care owed by a business establishment to its customers to be as follows:

“The law applicable to the facts and circumstances presented here is well established. A proprietor owes a duty to his customers to use ordinary care to keep his aisles, passageways and floors in a reasonably safe condition. Although the law imposes a duty of reasonable care ■ by the proprietor toward his customers, the storekeeper is not the insurer of their safety while on his premises. In order to impose liability on a storekeeper or proprietor the plaintiff must prove by a clear preponderance of evidence that a dangerous condition, which caused injury to the plaintiff, was:

(1) created or maintained by the storekeeper or one of his employees; or
(2) if not created by the storekeeper or one of his employees, that (a) the storekeeper or one of his employees had actual knowledge of the dangerous condition, or (b) the dangerous condition had remained long enough for the storekeeper to have constructive knowledge of the condition.

Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App.3rd Cir. 1968); Jones v. W. T. Grant Company, 187 So.2d 470 (La.App.3rd Cir. 1966); Peters v. Great Atlantic & Pacific Tea Company, 72 So.2d 562 (La.App.2nd Cir. 1954).”

The placing and maintaining of a loose board inch thick and 18 inches square in a small corridor lined by shelves of groceries on each side, which aisle is regularly used by the store’s customers, clearly creates a dangerous situation for which the storekeeper is liable if such condition causes injury. It requires little imagination to conclude that as a result of such a condition a customer who is busily engaged in shopping may trip or slip and fall under such circumstances.

In denying recovery to plaintiff the trial court determined that plaintiff failed to establish by a preponderance of the evidence that the loose board was the cause of her fall. Our own review of the record in this case leads us to conclude that the trial court’s determination in this regard was manifestly erroneous. We make this finding with full awareness of the well established rule that the conclusions of the trial court on issues of fact must be treated with considerable appellate respect and should not be disturbed unless manifestly erroneous. Canter v. Koehring, La., 283 So.2d 716 (S.Ct.1973).

It is clear from the record that no one saw the plaintiff fall. As plaintiff fell Eddie Thierry was walking in front of her and only turned around when plaintiff grabbed for him in an attempt to break her fall. In this connection Thierry testified as follows (Tr. pg. 153):

“Q. Okay, now, if you were in front of her, could you see when she fell ?
A. Well, I never seen when she fell, but she struck me what made me knew she fell.
Q. Okay, now, when she struck you, what position was she in?
A. When she struck me, and I looked back, she was flat on her back. That’s the position she was in.”

Alphonse Pitre a customer in the store at the time likewise did not see plaintiff as she fell. Pitre testified on this point as follows (Tr. pg. 169):

“Q. Now, were you looking at her when she fell ?
A. No, sir.
Q. You were not looking at her P
A. No sir. But she fell, when I seen she was on her two knees.”

Lionel Dupre, the store manager, admitted that he was busy at the cash register at the time and did not see plaintiff fall (Tr. pg. 181).

Plaintiff testified with positivity that she fell when she came into contact with the loose piece of plywood. In this connection she stated, (Tr. pg. 115):

“Q. And before you get to the check out counter did anything happen?
A. Yeah, on my way going up front, I was walking and he was, and he was a little ahead of me. And as I was walking I tripped and fell.
Q. What’d you trip on?
A. They had a board on the floor.
Q. All right, would you explain in more detail how you tripped and what caused you to trip ?
A. Well, I was walking, and I walked over the board, I guess, and I just fell. And I tried to grab at him, but when I reached my hand to grab at him, well, it knocked all the groceries out of his hand.
Q. What caused you to fall, Mrs. Landry?
A. The board did.
Q. Plow did it cause you to fall?
A. Well, it wasn’t tacked to the floor.
Q. All right, well, what did it do then? What happened to the board that caused you to fall?
A. It must have slipped because it wasn’t tacked.”

Plaintiff’s testimony is corroborated by the following facts and circumstances in the record:

(a) After her fall plaintiff lay on the floor within one or two feet of the floor defect and the loose piece of plywood.
(b) There was no other obstruction or defect in the aisle where plaintiff walked which could have caused her to fall.
(c)The loose board was moved from its usual place as a result of the fall for Alphonse Pitre testified (Tr. pg 172) that when he arrived on the scene to assist Thierry that he “took he took the board and shove (sic) it back where it was.”

The trial court concluded that plaintiff did not fall as a result of the loose board because of the testimony of Alphonse Pitre who at one point testified that plaintiff was past the board when she fell and presumably because of the testimony of the store manager who testified that when he arrived on the scene plaintiff lay on the floor about three feet in front of the board. As aforesaid we believe that this was error. Pitre admittedly did not see plaintiff fall nor did the store manager. Dupre, the store manager, although testifying that plaintiff lay on the floor three feet in front of the board (Tr. pgs. 182, 186 and 187) at a later point testified that he did not see or notice the plywood board when he arrived on the scene (Tr. pg. 187). It is difficult to understand how Mr. Dupre could testify as to the relative location of plaintiff and the piece of plywood board if he did not see or notice the plywood when he arrived on the scene. For the above reasons we find that the plaintiff has shown by a preponderance of the evidence that her fall and the resulting injuries were caused by the negligence of the defendant storekeeper.

Defendants in their answer assert that plaintiff was guilty of contributory negligence essentially because she was allegedly not keeping a proper lookout as she walked through the store. The trial court did not reach this issue. Our review of the record leads us to the conclusion that plaintiff was not guilty of any negligence under the circumstances. It was not shown that plaintiff was aware of the presence of this board in the shopping aisle nor was it shown that this loose board was readily discernible by even the most cautious who would be busy shopping. Suffice it to say that we find no merit in this contention. See Provost v. Great Atlantic & Pacific Tea Company, La.App., 154 So.2d 597; Gilliam v. Lumbermen’s Muhial Casualty Company, 240 La. 697, 124 So.2d 913; Vogts v. Schwegmann, La.App., 56 So.2d 177.

QUANTUM

Having determined that the trial court judgment must be reversed it is necessary that we determine a just award to compensate plaintiff for her damages.

Plaintiff saw her family doctor, Dr. Perry L. Fisher, the day following the accident. Dr. Fisher diagnosed plaintiff’s injury as a Lumbosacral Sprain. Plaintiff was hospitalized by Dr. Fisher for approximately nine days during which period she received diathermy treatments and medication for pain. Dr. Fisher saw plaintiff following her discharge as an out-patient and finally discharged her on October 7, 1974, some two months post accident. Dr. Fisher did not testify at trial however his written report was admitted by stipulation of counsel. According to Dr. Fisher’s report plaintiff’s response to therapy was dramatic and upon discharge the prognosis was good. Although plaintiff testified that she continued to have pain and considerable residual disability following her discharge by Dr. Fisher and up to the time of trial this is refuted by the medical evidence in the record. Dr. August C. Terrence, testified that he treated plaintiff on January 23, 1975 and September 3, 1975, however, her complaints were not related to the injury which she sustained in August 1974 but were caused by neuritis resulting from her diabetic condition. Plaintiff was also seen by Dr. Charles A. Borne, a specialist in neurosurgey, Dr. William G. Akins Jr., an orthopedic specialist, and by Dr. Robert L. Bordelon, an orthopedic specialist, all for;, the purpose of examination and evaluation. None of these doctors were able to make any objective findings in support of plaintiff’s continued complaint of back pain and all three found no anatomical correlation for her complaint of numbness all over her body. Both Dr. Akins, who testified for plaintiff, and Dr. Bordelon, who testified for defendants, concluded that plaintiff seemed to exaggerate her complaints. In summary we conclude, on the basis of the record, that as a result of her fall on August 8, 1974 plaintiff suffered a lumbosacral sprain which was completely resolved some two months later on her discharge by Dr. Fisher. Under the circumstances of this case we believe that an award of general damages in the amount of $2000.00 would do substantial justice between the parties. Of course plaintiff is entitled to recover as special damages the medical expenses incurred as a result of her injury, i. e., the sum of $910.00 plus all costs incurred both on the trial and appellate level. Included in the latter item are the fees of the medical experts who testified on behalf of plaintiff, Drs. Borne and Akins, which are fixed at the sum of $100.-00 each, the fee of Dr. Terrence having been fixed by the trial court.

For the above and foregoing reasons the judgment of the District Court is reversed and judgment is rendered in -favor of plaintiff, Annie Edward Landry, and against defendants, Hazelwood & Santillo Inc. and The American Insurance Company, in solido, condemning the latter to pay unto plaintiff the sum of TWENTY NINE HUNDRED TEN AND NO/100 ($2910.00) DOLLARS with legal interest from date of judicial demand until paid. Defendants are cast for all costs both on the trial and appellate level including the fees of the medical experts, Drs. Terrence, Borne and Akins, as fixed by this court and/or by the trial court.

REVERSED ÁND RENDERED.


author: SAMUEL, Judge.

text:
    JOSEPH A. OSTER & ASSOCIATES, INC. v. CAR WASH CENTER AND OWL, INC.
    No. 7225.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      James G. Maguire and Robert F. Pitard, New Orleans, for plaintiff-appellee.
    Lawrence L. Lagarde, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for investigative services rendered to the defendant under an oral agreement. The petition alleges the value of the services was $3,677.30, $1,250 was paid by the defendant ($500 as an advance and one subsequent payment of $750), and $2,427.30, the amount prayed for, is due. Defendant answered, averring the agreement was for the sum of $1,250, an amount fully paid by it, and reconvened for the return of the $750 payment on the ground the services rendered by plaintiff became worthless.

Following trial there was judgment awarding plaintiff the sum of $2,427.30 as prayed and dismissing the reconventional demand. Defendant has appealed.

The basic facts are not in dispute. Joseph A. Oster, president of the plaintiff corporation, contacted Joseph Maselli, general manager of the defendant corporation, and informed Maselli that some of the defendant’s employees were systematically stealing from the defendant. Oster proposed to conduct a full scale investigation. Maselli authorized the investigation and gave Oster an initial payment or advance of $500. It was understood the full cost of the investigation would depend upon the amount of work required as shown by the evidence uncovered as the investigation progressed.

Maselli testified he instructed Oster not to allow costs to exceed $700 without his express authority. Oster denies this. The final bill showed a balance of $3,177.30, $3,677.30 less the advance of $500. Maselli refused to pay on the ground that Oster had not obtained his authority to exceed the agreement limit to which he had testified. Thereafter, the two men had frequent conferences which culminated in an agreement to compromise and settle the indebtedness for the sum of $1,250. Following the compromise agreement, the defendant paid an additional $750. According to Maselli, that additional $750 payment, together with the $500 advance, extinguished the indebtedness under the agreement.

Some of the evidentiary facts contained in the immediately preceding paragraph appear in the record only in connection with a proffer made by the defendant. The answer did not allege the affirmative defense of extinguishment of the obligation, as required by C.C.P. Art. 1005, and, accordingly, the defendant was prevented from offering evidence regarding extin-guishment. On two occasions subsequent to the filing of its answer defendant attempted to supplement its answer to affirmatively plead that defense. On both occasions the trial court refused to allow such an amendment but did permit the defendant to proffer its evidence regarding extinguishment of the obligation so that the same would be available for this court’s consideration. Plaintiff offered evidence in rebuttal to the proffer.

In this court appellant contends: (1)plaintiff failed to prove the price of the contract; (2) appellant is entitled to the return of the $750 payment as prayed in its reconventional demand; and (3) the trial court erred in refusing to permit it to amend its answer to assert the affirmative defense of extinguishment of the obligation.

We find no merit in the first contention. The record contains sufficient proof of the fact that plaintiff actually performed the work and rendered the services reflected in its final bill; the defendant made no objection as the work progressed even though it appears it reasonably should have known the cost would exceed $700; and it appears the trial judge believed Oster and not Maselli on the question of whether or not Maselli instructed Oster not to allow costs to exceed $700 without Maselli’s express authority.

Nor do we agree with the second contention. It is based solely upon the fact that some actions by the plaintiff made it necessary to dismiss criminal charges against all of the defendant’s employees who were arrested and charged as a result of the investigation. We find no evidence in the record showing that payment for services rendered was contingent upon arrests made or convictions obtained. Substantial services were rendered and fully itemized. The reconventional demand was properly dismissed.

The third contention, relative to amendment of the answer, is more difficult. The case had been set and continued on three occasions between January 12, 1973 and May 23, 1974, the latter being the date the trial was commenced. During the course of that day’s trial, on timely objection made, the court refused to allow the defendant to amend its answer to include the affirmative defense of extinguishment. After the first day of trial the matter was continued as an open case on three occasions. Three days before the second day of trial, October 25, 1974, the defendant attempted to file a written amendment which included the affirmative defense. The trial court declined to change its original ruling insofar as the second attempted amendment was concerned but, as has been pointed out, did permit the defendant to go forward with its proffer.

In connection with the proffer, Maselli testified: He discussed the bill with Oster and they agreed to compromise the matter for $1,250. He then phoned his attorney to obtain instructions as to what words he should put on the back of the check to prevent the plaintiff from claiming additional money at a later date. Thereafter, he sent plaintiff a defendant check payable to “Joseph A. Oster & Associates” in the amount of $750. The check, which is in the record, is dated July 12, 1972 and contains the following words on the back: “Accepted in compromise and settlement, and as payment in full for all services rendered.” Plaintiff’s endorsement appears under that wording on the back of the check. The bank notation on the check shows it was credited to plaintiff’s account on July 20, 1972.

In rebuttal restricted by the plaintiff and the court to the defendant’s proffer evidence, Oster testified: At the completion of the work on June 30, 1972, he gave Maselli an itemized bill for $3,677.30, subject to a credit of $500 (the advance payment), leaving a total due of $3,177.30. Thereafter, as a result of complaints about the price, he and Maselli had several conferences. Oster finally agreed to settle the claim for his actual costs, $1,250. As we read his testimony, he did not include the $500 advance payment as being any part of the $1,250 compromise settlement; rather, his understanding of that agreement was that the $1,250 was in addition to the $500 advance. On July 12, 1972 Maselli gave him a check for $750, as above described. He then had a telephone conversation with Maselli in which he informed the defendant’s manager this was not their agreement and on July 19, 1972 wrote Maselli a letter asking for the additional $500. He then endorsed the check and deposited it to the plaintiff’s account.

Under our jurisprudence three requirements must be met for an accord and satisfaction which extinguishes the debt. They are: (1) an unliquidated or disputed claim; (2) a tender by the debt- or; and (3) an acceptance of the tender by the creditor. On the record now before us in the instant case, the doctrine of accord and satisfaction appears to be applicable. As indicated by the proffered evidence and rebuttal thereto, there was a disputed claim, a compromise of that claim, a tender by the defendant-debtor and, apparently, a sufficiently unqualified acceptance of the tender by the plaintiff-creditor.

Under C.C.P. Art. 1151 and the jurisprudence, when there is no written consent by the adverse party, it is within the sound discretion of the trial court to permit or refuse to permit an amendment to the petition or answer after answer has been filed. Here, we do not find the trial court abused its discretion in refusing to permit the requested amendment to the answer. Clearly, the trial court did not abuse its discretion in denying the first request which was made orally during the course of the first day’s trial. To allow the amendment at that time would have unduly delayed a trial already continued on three occasions. For the same reason, we do not find an abuse of discretion in the denial of the second request, made by written motion only three days before October 25, 1975, the second and final day of trial. At the end of the first day of trial, May 23, 1974, the matter was continued as an open case to May 31, 1974. Thereafter, it was continued to June 14, 1974, and continued again to October 25, 1974, at which time it was finally tried and submitted. Thus, there was ample time, certainly between June 14, 1974 and October 25, 1974, in which to request permission to file the amendment without delaying the trial.

Because of our conclusion that the trial court did not abuse its discretion in refusing to permit the amendment, our consideration of the proffer is limited to a determination of the correctness of the court’s refusal to admit evidence (subsequently contained in the proffer) relative to compromise and accord and satisfaction. If we were of the opinion that refusal was incorrect, and if we were of the further opinion the evidence sought to be offered would change the result, we would either remand or come to the conclusion indicated after consideration of the proffered evidence and rebuttal thereto. However, in the absence of the requested amendment, upon proper and timely objection the evidence could not be received because compromise and accord and satisfaction had not been pleaded. Thus, as we have found it was within the trial court’s discretion to refuse the requested amendment, admission of evidence relative to compromise and accord and satisfaction was correctly denied and such proffered evidence cannot be considered by either the trial court or by this court.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . “For Deposit
      Joseph A. Oster & Associates”

      . We simply recite facts as shown by the record.

      . See LSA-O.C. Art. 3071; Fuss v. Cordeleria De San Juan, S.A., 224 La. 338, 69 So.2d 365; Succession of Burgess, La.App., 323 So. 2d 914; Young v. White Stores, Inc., La.App., 269 So.2d 266; Work Clothes Rental Serv. Co. v. Dupont Mfrs., Inc., La.App., 262 So.2d 807; Sehrewe v. Scott Manufacturing Corporation, La.App., 258 So.2d 668; Peter A. Chopin, Inc. v. D’Antoni, La.App., 123 So. 2d 669.

      . See Charles X. Miller, Inc. v. Oak Builders, Inc., La.App., 306 So.2d 449.

      . See Charles X. Miller, Inc. v. Oak Builders, Inc., footnote 4.

      . In pertinent part LSA-C.C.P. Art. 3151 provides :
      “A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may he amended only hy leave of court or hy written consent of the adverse party." (Emphasis ours).

      . See Breaux v. Winnebago Industries, Inc., La.App., 282 So.2d 763; Brooks v. Fondren, La.App., 199 So.2d 588; Wallace v. Hanover Insurance Company of New York, La.App., 164 So.2d 111.


author: BEER, Judge.

text:
    Franklin D. PAUL v. ALL STAR INSURANCE CORPORATION.
    No. 7350.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    James F. Mulla, Jr., New Orleans, for plaintiff-appellee.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for defendant-appellant All Star Ins. Corp.
    Lester J. Waldmann, New Orleans, for Commercial Bank & Trust Co.
    Drury, Lozes & Curry, Rene A. Curry, Jr., New Orleans, for First Wisconsin Nat. Bank of Milwaukee.
    Before LEMMON, MORIAL and BEER, JJ.
   BEER, Judge.

All Star Insurance Corporation, (hereafter, All Star) was the fire insurer of Franklin D. Paul (hereafter, Paul) covering the contents of a building at 1501 Governor Nicholls Street in New Orleans. Certain of the contents of the building were damaged and/or destroyed by fire on October 15, 1973. As a result of this loss, a settlement was made between Paul and his insurer, resulting in All Star issuing draft Number 23388 dated November 21, 1973, in the amount of $6,895.25, payable to the order of Franklin D. Paul and drawn on the First Wisconsin National Bank of Milwaukee, (hereafter, First Wisconsin). Subsequently, the draft was allegedly stolen, forged, and, thereafter, cashed by Commercial Bank & Trust Company, (hereafter, Commercial) on December 5, 1973.

Upon cashing the draft, Commercial forwarded same to the drawee bank, First Wisconsin, for payment. Commercial, as is customary in such instances, guaranteed all prior endorsements. The draft was paid by First Wisconsin to Commercial based on Commercial’s guarantee of all prior endorsements.

Paul, the original plaintiff in these proceedings, filed suit against All Star, alleging that they were indebted to him in the sum of $6,895.25 by reason of the settlement and subsequent non-receipt of the draft covering the settlement.

All Star filed a third party demand against First Wisconsin claiming that they had accepted and honored the All Star draft which had been negotiated by use of a forged endorsement, and that, accordingly, First Wisconsin had improperly debited the account of All Star.

First Wisconsin filed a third party demand against Commercial alleging that Commercial had guaranteed all prior endorsements on the draft and averred that since the endorsement of Franklin D. Paul was a forgery, Commercial was obliged to indemnify First Wisconsin.

Motions for summary judgment were filed by Paul, All Star and First Wisconsin. Each contended, based on the pleadings, admissions and affidavits on file, that there was no genuine issue as to any material fact and that, accordingly, Paul was entitled to judgment in the amount claimed; that All Star was entitled to judgment against First Wisconsin who was, in turn, entitled to judgment against Commercial, the cashing bank, for identical amounts ($6,895.25).

The record shows that First Wisconsin’s answer and third party demand against Commercial was filed on February 5, 1975 and that Commercial first responded on March 6, 1975 when if; moved for an extension of time within which to answer. Thereafter, on April 4, 1975, Commercial filed an answer through its then attorneys of record. That answer denied that the endorsement was a forgery and affirmatively averred that “the endorsement on the check was a proper endorsement, that in fact the signature is that of Franklin D. Paul, and that it was presented for payment by its rightful holder in due course.”

Just prior to the hearing on the various motions for summary judgment, Commercial retained other attorneys who, on the date of the hearing on the motions for summary judgment, filed an amended and supplemental answer which the court permitted to be filed by specific order dated May 2, 1975. On that same date, Commercial, through its new attorneys of record, also filed affidavits which purported to substantiate a factual controversy with respect to both the alleged forgery and/or acts of fraud and collusion in connection with the cashing of the draft.

Apparently Commercial’s attorneys made oral motion for a continuance of the hearing on the summary judgments but this was denied and the hearing on all the motions for summary judgment took place on May 2, 1975.

On May 8, 1975 the trial court granted summary judgments in favor of the respective movers. On May 12, 1975 the court amended the judgments to include dollar amounts awarded in favor of each of the movers.

A motion for a new trial, filed by Commercial on May 15, 1975 was argued on June 13, 1975. The court rendered judgment on June 20, 1975, denying the motion for a new trial and these appeals followed.

We believe that Commercial had, by their original and supplemental and amended answers, set up a properly pleaded factual dispute which, supported by affidavits, would have formed a proper basis for either a denial of the various motions for summary judgment, or, alternatively, the granting of a continuance of the hearing on the summary judgment motions to permit Commercial to further factually develop its defensive position, albeit with deliberate speed.

However, when movers took the initiative and filed very compelling affidavits in support of their respective motions for summary judgment, Commercial took no satisfactory step to develop their opposition thereto since the supporting affidavits filed by Commercial did not measure up to the requirements of LSA-C.C.P. Article 967

Thus, in spite of the introduction by movers of positive, properly prepared affidavits in support of their respective positions, Commercial continued to rely upon affidavits which did not have probative standing. Indeed, Commercial’s affidavits formed little or no basis for seriously developing a factually supportable defensive position but only made vague assertions of “the possibility of collusion” involved in the endorsement and subsequent cashing of the draft. Instead of taking positive steps to set up a factual issue (for example, the filing of an affidavit of a handwriting expert stating that, in his professional opinion, the signature of Franklin D. Paul was not a forgery) , Commercial did nothing.

On the other hand, little or no time was available to Commercial’s new attorneys of record to take such action because they were obliged to defend the motions for summary judgment without having time to factually support — by contravening affidavits — the new defensive positions set forth in their supplemental answer.

The record clearly supports the summary judgments in view of the fact that no acceptable affidavits have been filed in opposition. Furthermore, there is, apparently, little likelihood that any such can be filed. Although remand would obviate the possibility, however remote, that an injustice could possibly result from our preventing Commercial from having every opportunity to develop its contentions with respect to fraud, collusion and/or the fact that the signature was not a forgery, there appears to be little or no “hard core” basis for such contentions.

Since Commercial had adequate time to develop its defenses and any lack of dili-gency by the previous attorneys is imputable to Commercial, we cannot say the trial judge abused his discretion in denying the continuance which would have been used by the new attorneys of record to develop information to support adequate contravening affidavits.

Most compelling, however, is the fact that Commercial can still protect itself through an action to annul any judgment obtained by fraud or collusion if such is, in actuality, the case. This is the only serious issue in this litigation, for the applicable law dealing with the responsibilities of the various parties is clearly set forth in Fidelity National Bank of Baton Rouge v. Vaci, 224 La. 124, 68 So.2d 781 (1953), Smith v. Louisiana Bank and Trust Company, 255 So.2d 816 (La.App. 2nd Cir. 1971), reversed in part on other grounds 272 So.2d 678 (La.1973) and Allan Ware Pontiac, Inc. v. First Nat. Bank, 2 So.2d 76 (La.App. 2nd Cir. 1941).

Accordingly, the various summary judgments of the Civil District Court for the Parish of Orleans are affirmed. Costs of these appeals are to be assessed on the same basis as were provided for in the district court judgments.

AFFIRMED.

      . Including an affidavit by Franklin D. Paul that he had never received the draft and, perforce, had not endorsed it.

      . LSA-C.C.P. Article 967 provides that “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Therefore, the hearsay statements of affiants Fisher and Welch indicating that “it has been stated to me by an investigator of the Federal Bureau of Investigation that they are investigating the possibility of collusion between Franklin D. Paul and James E. Smith,” cannot be considered as valid affidavits in opposition to the motion.
      Furthermore, the same article provides that “when a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.”

      . This entire matter could have been effectively dealt with if the trial court, having allowed the filing of the supplemental and amended answer, had also granted a short continuance for the hearing of the motions for summary judgment — sufficient to allow Commercial to either prevail or fail in their effort to support their position with acceptable affidavits.


author: REDMANN, Judge.

text:
    Robert COPPAGE v. Victor CAMELO.
    No. 7237.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Richard A. Kuntz, Schroeder, Kuntz & Miranne, New Orleans, for plaintiff-appellant.
    William A. Summers, III, Metairie, for defendant-appellee.

      Before REDMANN, BOUTALL and MORIAL, JJ.
   REDMANN, Judge.

A real estate agent appeals from the dismissal of his suit for commission on a sale of property made four months after the expiration of his listing agreement, to an adjacent landowner long interested in the property, whom plaintiff did visit during the agreement.

The listing agreement provided for a commission to the plaintiff on any “agreement [to sell or exchange] made within 180 days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract.”

The listing agreement on defendant’s Clearview Parkway lot in Jefferson Parish, pricing it at $35,000, was made February 5, 1973, for a six-month term. We pre-termit discussion of its obliging plaintiff to nothing more specific than “efforts to find a buyer”. Plaintiff tried to sell the lot by posted sign and by newspaper advertisement and also by one visit to the owner of the surrounding lots, and he did receive one offer of $25,000 for the lot from another person during the six months he was to have made “efforts to find a buyer”.

The adjacent owner, operating a greenery or nursery on his own lots and even using defendant’s lot for customer parking and sod storage, was the most obvious prospect as a purchaser (as plaintiff testified). In fact, that adjacent nurseryman had asked defendant several times during the previous several years to sell the lot to him, but they did not agree on price. (The price range of their discussions is not shown.)

When plaintiff and his employee called on the nurseryman (he says in March or thereabout; they say in June), he put them off by asserting that he was not interested, that, as plaintiff’s employee testified, “he did not want to pay for the real estate agent.” The nurseryman testified he told them “you don’t need to talk to me, about the land next door, I know all about it and I know who owns it and ... I said, listen, let me tell you right now, there is no way I am going to buy it through a real estate [sic], I said, if I am going to buy it, you take your best shot and try to sell it, if I lose it it is okay.”

The nurseryman did ultimately buy the lot, for $29,500, in December 1973, and this suit followed.

Our factual context is not that for which the contractual clause in question was designed. Except that plaintiff’s production of only one offer for land on a major Jefferson Parish street during the entire six months conceivably might have reduced the owner’s idea of the land’s market value, and except that plaintiff’s efforts to sell might have made the nurseryman more aware of the possibility that defendant could sell his land to another and thus make it unavailable to the nurseryman, plaintiff seems to have had nothing to do with the nurseryman’s purchase. Plaintiff’s “efforts to find a buyer” did not find this buyer, and we conclude it would be an overstatement to say that plaintiff produced this sale.

While we recognize the serious problem an agent faces in protecting his entitlement to a commission when he has in reality sold the property, and we recognize the difficulty of phrasing an enforceable contractual provision to protect him, we believe that “quoted” means at least that the price be stated. The trial judge apparently believed the testimony contradicting plaintiff’s assertion that a price was quoted to the nurseryman, since (as plaintiff’s employee testified) the nurseryman promptly told plaintiff that he was not interested in dealing with him. We cannot say that that factual conclusion is not reasonably supported by the evidence.

Affirmed.