author: JASPER E. JONES, Judge.

text:
    Don E. GIDDENS, d/b/a Giddens Erection Co., Plaintiff-Appellee, v. ALPINE CONSTRUCTION SPECIALTIES, INC., Defendant-Appellant.
    No. 14543.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Donald R. Miller, Shreveport, for plaintiff-appellee.
    A. M. Wyche, III, Bossier City, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

On January 24, 1979, Don E. Giddens, d/b/a Giddens Erection Company, sued Alpine Construction Specialties, Inc. for sums alleged to be due on five construction contracts executed between plaintiff and defendant in 1978. Defendant is a general contractor engaged in the business of constructing prefabricated metal buildings. Plaintiff, an erector of prefabricated metal buildings, entered into a series of contracts with defendant whereupon he agreed to erect at various locations prefabricated metal buildings for defendant. The contracts required plaintiff to supply the labor and tools to perform the erection work and required defendant to provide the prefabricated materials for the construction of the buildings and to prepare the foundations upon which the buildings were to be erected.

Plaintiff erected the metal buildings covered by four of the contracts sued upon. Included within the sums he demanded was approximately 10% of the contract price of these four contracts which had been retained by defendant and not paid to plaintiff. Also included in the amount sued upon was extra labor cost and other expenses incurred by plaintiff which were made necessary by requirements made by defendant in connection with the performance of the erection work on two of the contracts, designated as Al’s Car Care Center and Schlumberger Shreveport Learning Center, which were not contemplated or provided for by the contracts. Also included within the amount sued upon was a discount that had been allowed in the contract price on the Learning Center, which had been conditioned upon defendant permitting plaintiff to construct it alongside of and simultaneous with another building designated as Schlumberger Cased Hole Facility. The defendant required the two Schlumberger buildings to be constructed at separate locations and at different times and was therefore not to be entitled to the discount.

Also included in the sums sued for was the contract price for one building designated as the Scogins job which defendant did not call upon plaintiff to construct and which defendant had erected by another subcontractor.

Defendant answered and admitted owning substantially the amount claimed as re-tainage under the four contracts under which plaintiff constructed the buildings but denied owing any sum on the Scogins building which was not erected by defendant and denied the amounts claimed as extra labor costs and other expense incurred in connection with the erection of the buildings. Defendant claimed that the buildings erected under the four contracts sued upon contained defects which defendant was required to remedy and it reconvened against plaintiff for the expenses incurred in remedying these alleged defects. Defendant also reconvened for replacement costs of some prefabricated parts on the Schlumber-ger Learning Center which were incurred because plaintiff permitted these parts first supplied to become damaged during construction.

Defendant also sought in its reconven-tional demand a loss sustained by it because plaintiff did not perform a contract to erect the building known as Schlumberger Cased Hole Facility. Plaintiff and defendant had executed a contract covering the erection of this building on March 30, 1978 for a price of $12,019. This contract, as did all other contracts between plaintiff and defendant, required plaintiff to supply defendant with a certificate of insurance reflecting workmen’s compensation and liability insurance coverage. Plaintiff had initially supplied defendant with the required certificates of insurance provided by Montgomery Agency, but this certificate of insurance had been cancelled effective December 18, 1978, and though plaintiff had secured the required coverage with another agency plaintiff had not provided the new certificate of insurance to defendant. Defendant had demanded a new insurance certificate and advised plaintiff that if it wasn’t supplied, any outstanding contracts would be relet and that any additional costs incurred as result of being required to secure another erector to construct the buildings would be charged to plaintiff. After plaintiff instituted his suit defendant re-let the Schlumberger Cased Hole building to Mitchell, another erector, on February 2, 1978 for $18,952, and asserted in its reconventional demand a claim for the difference between the $12,-019 which plaintiff had agreed to erect the building for and the amount which it was required to pay Mitchell to get the building erected.

The trial court awarded plaintiff judgment for $6,238.24 which included the sum of $2,663.74 retained by defendant from the contract price of the four contracts under which plaintiff had erected the buildings. The trial court also awarded plaintiff the discount of $640 on the Schlumberger Learning Center contract which defendant was not entitled to because the two Schlum-berger buildings were not built at the same time and at the same location. Included in the award was $270 which the trial court found to be the profit which plaintiff would have earned from the contract to erect the Scogins building that defendant had failed to permit plaintiff to erect. Also included in the award was $1,000 for extra labor and expenses incurred by plaintiff in erecting Al’s Car Care Center and $1,100 extra labor expenses incurred by plaintiff in erection of the Schlumberger Learning Center building. These sums awarded for the extra expense were $2,500 less than plaintiff had demanded.

Defendant was awarded on its reconven-tional demand the sum of $1,579.19. This included the cost of replacing damaged building parts on the Schlumberger Learning Center building in the amount of $831.39. Defendant was awarded cost of repairing defects in Al’s Car Care Center building in the amount of $498.56 and the cost of repairing defects in the Cherokee building in the amount of $249.24. These awards for claims for repairing defects in these two jobs were substantially less than was demanded in the reconventional demand, and the demand for repairs of defects in the other buildings constructed by plaintiff was totally rejected. The claims asserted in the reconventional demand for the difference between what defendant was required to pay Mitchell for erecting the Schlumberger Cased Hole Facility and the price which plaintiff had agreed to erect it for was rejected. After defendant asserted the claim on this contract plaintiff amended his petition and asserted a demand for the contract price on this building, and the trial court rejected plaintiff’s claim on this contract.

Defendant appealed the judgment. It makes no complaint with regard to any of the elements of the awards against it except the amount of the award for extra labor of $1,100 on the Schlumberger contract and the award of $1,000 for extra labor on the Al’s Car Care Center contract. It contends the trial judge erred in awarding these sums because the evidence did not establish the exact number of extra hours work that was performed to justify these awards and it seeks a reduction in the amount of the extra labor awards.

Defendant assigns no error with regard to the award it received for work performed correcting the defects in the buildings erected by plaintiff.

Defendant assigns as error the rejection of its claim for additional cost in the amount of $6,923 that it was required to pay Mitchell for erecting the Schulmberger Cased Hole building above the contract price which plaintiff had agreed to erect the building for.

There is substantial evidence in the record which establishes that plaintiff was required to spend extra labor cost because of changes in work schedule due to unwarranted delays created by defendant’s failure to provide some parts of the prefabricated buildings in the manner contemplated by the contract on the Schlumberger Learning Center. There is also substantial evidence that defendant failed to construct the slab upon which Al’s Car Care Center building was to be erected in the manner contemplated by the contract, and as a result of the slab defects, plaintiff was required to use additional labor to erect the building.

The trial judge recognized in his reasons for judgment that plaintiff had not established the amount of $4,600 claimed for this extra labor, but concluded that the evidence supported an award of $2,100 for this extra labor. While we agree that the evidence does not establish the exact amount of this extra labor, we find there is substantial evidence to support the trial judge’s conclusions and we do not find them clearly wrong and will not disturb the extra labor award on appeal.

Included in the trial judge’s excellent written reasons for judgment is the following statement with regard to his reasons for rejecting defendant’s demand for the extra cost incurred in obtaining the erection of the Schlumberger Cased Hole building:

“Alpine terminated this contract due to Giddens failure to provide the necessary certificates indicating that Giddens had the required insurance coverage. Alpine was notified by Montgomery Agency, Inc. that Giddens coverages would be terminated on December 18, 1978, due to nonpayment of premiums. Giddens obtained insurance coverage from Beasley-Keith Insurance Agency but both Don Giddens and Mrs. Lee admitted that proof of coverage was not given to Alpine. Mr. Gid-dens states that he was not going to do anything more until Alpine paid past due obligations.
An overview of the testimony of the parties in connection with this job indicates that the relations between Giddens and Alpine had deteriorated to the point that neither wanted to do business with the other. The termination of this contract was due to mutual fault and the Court is of the opinion that neither party is entitled to recover their claims arising out of P-3.”

Defendant contends that because the Schlumberger Cased Hole contract was a separate contract, the trial court was wrong to find that plaintiff was justified in refusing to perform the contract because of defendant’s breach of the five other contracts by failing to pay plaintiff the approximately $4,600 owed plaintiff by the terms of them. Plaintiff testified he didn’t supply Alpine with the new insurance certificates and refused to erect the Cased Hole building because the defendant did not pay him for the work already performed.

In the cases of Arendsen v. Edw. D. Boyle & Co., 119 So. 282 (Orl.Apl.1928); Rosenberger v. Hutchinson, 143 So.2d 604 (La.App. 4th Cir. 1962); and R. J. Ducote Contractor, Inc. v. L. H. Bossier, Inc., 192 So.2d 179 (La.App. 1st Cir. 1966), it was held that the failure of the general contractor to timely pay a subcontractor part payment as required by the contract justified the subcontractor in refusing to continue with the performance of the subcontract.

In the Arendsen, supra, case the general contractor failed to make payments for stone hauled by plaintiff, and plaintiff stopped hauling the stone and sued for the money due on those which he had hauled and for which he had not been paid. Defendant reconvened for the added cost he was required to pay to get the remainder of the stones hauled. The appellate court approved the trial court’s determination that the failure of the general contractor to pay plaintiff for the stone hauled:

“. . justified plaintiff in abandoning the contract and he is entitled to the pay for such work.” Id. at 283.

The court there rejected the defendant’s reconventional demand.

In the Rosenberger, supra, case, plaintiff had agreed to perform the carpentry work on defendant’s house for $3,512 which defendant agreed to pay in four installments as the work progressed. Each installment was due at designated stages in the progress of the construction work. Plaintiff received the first two installments, but defendant refused to pay the third installment which became due when the sheet rock was installed. When defendant refused to pay the third installment, plaintiff refused to complete the job because he did not have the funds to pay for the labor and material necessary to proceed with the work. The appellate court affirmed a judgment in favor of plaintiff for the third installment, stating:

“Since the plaintiff was not required to continue performance once the defendant refused to tender the third installment due for plaintiff’s work, plaintiff then was relieved of his obligation to complete the contract.” Id. at 606.

In the Ducote, supra, case, the court held that a dirt work subcontractor on a highway project was justified in refusing to continue performance of a subcontract because the general contractor refused to pay a progress payment found to be due under the contract.

In C & W Construction Co. v. Travelers Indemnity Co., 147 So.2d 706 (La.App. 1st Cir. 1962), a contractor and a subcontractor asserted claims against each other for damages alleged to be due as the result of a subcontract which was not performed by the subcontractor on a highway project. The court found that both parties failed to comply with the contract and neither was entitled to demand a penalty for its breach. The court quoted with approval from the trial judge’s reasons for judgment:

“My appreciation of the testimony in the record was that neither party was actually free from fault in connection with the work ceasing on this contract, and I consider this relatively important, because prior to the cessation of the work, both parties had failed to carry out their obligations under the contract, and neither of them can recover damages for the breach.” Id. at 710.

The trial court here was applying the rationale of the foregoing cases when it rejected Alpine’s demand based upon the failure of plaintiff to erect the Schlumber-ger Cased Hole building. We observe that all six of the contracts included in this litigation were executed in 1978. The principal obligation undertaken by plaintiff was to provide the labor to erect the buildings covered by the contracts. The total of the contract prices on the four contracts which plaintiff actually performed, and upon which most of his demand was based at the time he initially filed his suit on Jan. 24, 1979, was only $24,200. The evidence established plaintiff’s profit margin was only 15% indicating he could have expected to make only the sum of $3,430 from these contracts, and yet the trial court found defendant had withheld payment of approximately $4,500 on work performed above the amount awarded to defendant for correction of defects. The evidence further established that much of the money collected by plaintiff from defendant on these contracts was obtained only after numerous demands for payment, and by plaintiff sending an employee to defendant’s office for the checks. The employee was required to wait a long time in defendant’s office before the checks were given to her. The fact that plaintiff was required to pay immediately for the wages of the iron workers who erected defendant’s buildings and pay substantial insurance premiums, together with the fact there was no large amount of profit in the contract prices, easily explains why plaintiff found it necessary to institute his suit on January 24, 1979 for the money owed him by defendant. The evidence established that plaintiff was not specifically called upon to erect the Cased Hole building until after or about the day the suit was filed. The Mitchell contract for the erection of the Cased Hole Building was not executed until February 2, 1979.

While the Schlumberger Cased Hole contract was a separate contract, as defendant contends, it was also a part of a pattern of work which plaintiff agreed to perform for defendant in 1978. It was executed on March 30, 1978, the same day the contract was executed for the erection of the Schlumberger Learning Center building which plaintiff erected, and upon which a substantial part of the judgment in his favor was based. The two Schlumberger contracts were tied together by the parties in that the total price provided for their performance was discounted by $1,800 conditioned upon the buildings being simultaneously constructed on adjoining lots. The pattern of similarity in the contracts involved in this litigation in the close time frame in which they were executed and partially performed, and the similar circumstances involved in the non-payment by defendant upon the four contracts performed by plaintiff justified the trial court in evaluating the entire relationship between plaintiff and defendant for the purpose of determining plaintiff’s liability for his refusal to erect the Cased Hole building. Plaintiff was justified in refusing to erect the Cased Hole building because of defendant’s refusal to pay him the consideration due on the Learning Center contract because the consideration contained in the contracts for the erection of the two buildings was tied together by the $1,800 discount allowed on the consideration for the erection of the two buildings. The circumstances in which plaintiff here found himself are analogous to the situations where subcontractors were permitted to abandon their contracts and collect for the work performed in the cases of Arendsen, Rosen-berger, and Ducote, supra. The breach by defendant of five of the series of contracts justifies plaintiff in refusing to perform the sixth contract. Plaintiff could not be expected to erect another building for defendant when he had not been fully paid for numerous other buildings which he had erected for defendant.

Plaintiff here was entitled to refuse to perform the Schlumberger Cased Hole contract and to sue for the money owed him on the other contracts.

Plaintiff answered the appeal, but asserted therein that he was satisfied with the trial court’s judgment and only desired it modified on appeal in the event it was modified pursuant to defendant’s appeal. Because we have concluded to affirm the judgment, we find it unnecessary to address the assignments of error raised in plaintiff’s brief in connection with his answer of defendant’s appeal.

Judgment AFFIRMED. Costs on appeal are assessed against appellant.

      . It does contend there was an $18 error in calculation on the $640 awarded on the Schlumberger job because Alpine was not enti-tied to the discount but we conclude this contention is too inconsequential to deserve consideration.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    PROTECTIVE INSURANCE AGENCY, INC., Plaintiff-Appellee, v. Robert E. RIDDLE, Defendant-Appellant.
    No. 14559.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    Baker & Brunson by William H. Baker, Jonesboro, for plaintiff-appellee.
    Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for defendant-appellant.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action by plaintiff insurance agency for the balance of premiums owed on policies written for defendant and paid for by plaintiff, defendant appeals the judgment against him. We affirm.

This record reflects that for more than 20 years defendant was engaged in several businesses around Jonesboro and that plaintiff was defendant’s insurance agent. The agency procured many kinds of insurance coverage for defendant during the years, paid the insurers, and charged defendant on its books for the premiums. Defendant authorized plaintiff to draft monthly on one or more of plaintiff’s bank accounts to pay the agency. These drafts increased from $200 to $700 as defendant expanded his businesses and insurance premiums increased. Before their relationship terminated, plaintiff was writing insurance for defendant with premiums of approximately $8,000 per year.

When the relationship was ended, defendant owed plaintiff approximately $6,000. Plaintiff effectively cancelled some of the policies with lengthy policy periods, credited defendant’s account with premium adjustments, and sued for the balance of $4,102.

Defendant does not deny owing plaintiff some amount, but denies owing the amount sued on. Defendant does not claim or show fraud, ill practices, or even error or negligence on the part of plaintiff in keeping the account record. Defendant claims that a workers compensation premium was merely an estimated premium, that the account includes interest not agreed to by defendant, and plaintiff did not prove that payment had been made by it to the insurer(s).

The trial court impliedly found that defendant could have obtained an accurate premium figure for the w. c. insurance by either furnishing the insurer with its payroll and other pertinent records or by allowing the insurer to audit its records to gain such information. The trial court resolved the credibility issue against defendant, finding that defendant did not offer his business records for audit. We find no error in this respect. Extinguishment of an obligation in any manner, including by compensation and setoff, is an affirmative defense, the burden of proving which is on defendant. CCP 1005.

Plaintiff’s ledger sheets show the following charges as service charges and are otherwise unexplained.

“6/25/73 Serv. charge 86.14
“7/25/73 Serv. charge 107.23”
Total $193.37

Plaintiff has not shown that defendant agreed to pay service charges over and above the premiums charged defendant. We amend the judgment to reduce the amount awarded by the above total. Interest is due on this account from judicial demand. Bank of Louisiana v. Argonaut Insurance Company, 248 So.2d 349 (La.App. 4th Cir. 1971); CC 1938.

Defendant cannot complain that plaintiff is allowed to recover the balance due on premiums paid for defendant by plaintiff to insurance companies. Plaintiff was more than a mere seller of insurance to defendant. Plaintiff selected coverages and insurers for defendant as defendant’s business grew and changed, paid premiums for defendant to the insurers as they became due, and for defendant’s convenience, agreed to defendant’s paying plaintiff by the month instead of for the policy period. Plaintiff was the mandatary of defendant in this respect and became subrogated to the rights of the insurer to claim from the defendant (the insured under the policies) the amount of the premiums plaintiff paid on the policies for defendant. CC 2161(3). Calvert v. Harper, 205 So.2d 193 (La.App. 2d Cir. 1967).

The judgment is amended to reduce the principal amount from $4,102.60 to $3,909.23 and, as amended is AFFIRMED.


author: BOUTALL, Judge.

text:
    Linda Gail BURNS, w/o and David Burns v. Edward FERNANDEZ, Toledo National Insurance Co. and Hartford Insurance Company and New Orleans Easter Seal Society, Inc. and Northwest Insurance Co.
    Nos. 11481, 11482.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 10, 1981.
    Rehearing Denied Aug. 17, 1981.

      Stephen C. Kogos, New Orleans, for Linda Gail Burns, plaintiff, appellee and appellant.
    Roger J. Larue, Jr., Metairie, for New Orleans Easter Seal Society, Northwest Insurance Co., defendants.
    Nelson, Nelson & Lombard, Ltd., Irving H. Koch, New Orleans, for Edward Fernandez, defendant.
    Paul P. Rutledge and David G. Fassnacht, Metairie, for Hartford Insurance Co., defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding damages to the plaintiffs for personal injuries sustained in an automobile accident.

On October 26, 1976, at about 7:30 in the morning, one of the plaintiffs, Linda Burns, was operating a motor vehicle on behalf of her employer the New Orleans Easter Seal Society (hereinafter referred to as NOESS) when her vehicle was struck from the rear by an automobile being driven by the defendant Edward Fernandez. Mrs. Burns sustained injuries to her neck and back. Shortly thereafter, Mrs. Burns and her husband David Burns filed suit to recover damages for the personal injuries sustained by the former against Fernandez for his alleged negligence in causing the accident and injuries, Toledo National Insurance Co. and All-Star Ins. Corp. (hereinafter referred to as Toledo and All-Star respectively) as insurers of Fernandez, and Hartford Insurance Co. (hereinafter referred to as Hartford) as uninsured motorist insurer of NOESS. Fernandez answered and filed a third party demand against Toledo and All-Star as his insurers requesting that they indemnify him for any sums for which he may be liable unto plaintiff. Toledo, by a petition of concursus, deposited $5,000 into the registry of the trial court which figure represented the maximum limits of its coverage. Hartford filed a third party demand against Fernandez, Toledo and All-Star for indemnification in the event Hartford was held liable unto the plaintiffs.

A second suit was filed by Mrs. Burns individually and against NOESS, as her employer, and its insurer Northwest Insurance Co. (hereinafter referred to as Northwest) for the recovery of workman’s compensation benefits. NOESS and Northwest filed a third party demand against Fernandez, Toledo, and Hartford to recover any sums which they may be liable for unto the plaintiffs. These two suits were consolidated for trial.

Upon trial on the merits of this matter, the lower court entered judgment as follows: 1) in favor of the plaintiffs and against Fernandez and Toledo in the amount of $5,000, which figure represents the maximum amount of coverage under the insurance policy; 2) in favor of the plaintiffs and against Hartford in the amount of $31,960.35, which figure represents recovery under the uninsured motorist provision in the policy of NOESS; 3) in favor of the plaintiffs and against Edward Fernandez and Hartford in solido, in the amount of $10,000; 4) in favor of Northwest and against the plaintiffs and Hartford in the amount of $10,270.52; and 5) dismissal of the workman’s compensation demands made by Mrs. Burns.

On appeal, a multitude of issues have been raised for our consideration. For the sake of clarity and understanding, each issue will be set apart and considered individually.

UNINSURED MOTORIST COVERAGE

At the time of the accident on October 26, 1976 Fernandez was covered under two different policies of insurance; one with Toledo wherein coverage was provided in the amount of $5,000 per person and the other with All-Star wherein coverage amounted to $95,000 per person. Also, at this time, NOESS was insured by Hartford under a comprehensive liability policy which provided coverage for its fleet of vans as well as an uninsured motorist provision. All three of these insurers were named as defendants in this matter as per their respective policies of insurance. Subsequently, on March 1, 1977, by order of the Circuit Court of Milwaukee County, Wisconsin, All-Star was ordered liquidated because of its condition of insolvency. This court further ordered that all pending actions and proceedings against All-Star were thereby abated. A similar ruling was entered on April 22, 1977 by the District Court for the Parish of East Baton Rouge. Shortly before trial, Toledo filed a petition for concur-sus and deposited $5,000 into the registry of the court, which figure represented the maximum limits of its coverage.

The uninsured motorist provision of the Hartford policy with NOESS provided coverage in the amount of $5,000 per person per vehicle or $10,000 per accident. This provision listed NOESS as the named insured and described those individuals who would be regarded as “persons insured” as follows:

“II. PERSONS INSURED
“Each of the following is an insured under this insurance to the extent set forth below:
“(a) The named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
“(b) any other person while occupying an insured highway vehicle ; and
“(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b).”

The basic issue here is whether the plaintiffs will be permitted to “stack” the coverage for all 26 vans insured under the uninsured motorist provision or will their recovery be limited to the uninsured motorist benefits for the particular vehicle which Mrs. Burns occupied at the time of the accident.

Mrs. Burns contends that she is a named insured under the uninsured motorist provision and she should be permitted to stack the coverage of all 26 vehicles covered under the policy, thereby exposing Hartford to a possible liability of $260,000. The trial court adopted this contention reasoning that since separate premiums were paid for the benefit of the employees of NOESS, Mrs. Burns would be permitted to stack the uninsured motorist coverage.

In Briley v. Falati, 367 So.2d 1227 (4th Cir. 1979) Writ denied, 369 So.2d 1379 (La. 1979) we were faced with a similar issue of whether to permit stacking under an uninsured motorist provision of an insurance policy. In that case we distinguish between the named insured and the permissive user in determining whether stacking would be allowed. The named insured was regarded as the party so named in the policy of insurance and the permissive user being the party insured merely by virtue of his presence in an insured vehicle. Stacking was permitted for the named insured based on the theory that premiums were paid for this particular type of coverage; it was not allowed for the permissive user as no additional premiums were paid for by him or on his behalf. Nevertheless, the permissive user would be allowed uninsured motorist benefits but only insofar as the vehicle in which he was present at the time of the accident. Furthermore, we noted that the permissive user would not be precluded from such coverage as R.S. 22:1406D(l)(b) permits such additional coverage for the permissive user provided he contracted for and paid for additional coverage. We stated therein:

“.... Though a permissive user is clearly entitled to be considered an omnibus insured as to the uninsured motorist coverage provided that vehicle, he has no other implicit or actual right. Louisiana drivers who, perceiving the need for uninsured motorist coverage in greater than the basic amounts, have the opportunity to purchase same and, in so doing, are entitled, under certain circumstances, to ‘stack’ that coverage with the uninsured motorist coverage existent on an individually borrowed or leased vehicle, but that is only because the concerned individual anticipated his needs and, thereupon, contracted for and paid for additional coverage.

The so-called “premium payment” rationale adopted by this court is not an original one. It has been adopted in several jurisdictions. See Lambert v. Liberty Mutual Insurance Co., 295 Ala. 414, 331 So.2d 260 (1976); Cunningham v. Ins. Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972); Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 790, 457 P.2d 34, 40 (1969).

In applying the above rationale to the case before us we find that the terms of the policy list NOESS as the named insured. The policy further indicates that Mrs. Burns in her capacity as an employee of NOESS is a permissive user insofar as the uninsured motorist provision is concerned as she was insured merely by virtue of her presence in the insured motor van owned by NOESS. These findings are consistent with the premiums paid by NOESS for uninsured motorist coverage. The policy indicates that NOESS paid a separate $9.00 premium for each of their 26 vehicles for uninsured motorist coverage in the amount of $5,000 per person per vehicle or $10,000 per accident per vehicle. The total premium that was paid was $234. It can’t be seriously contended that the $234 premium paid by NOESS would permit stacking by both the named insured NOESS and the permissive user Mrs. Burns. The premium payment rationale supports a finding that the premium paid was only sufficient to permit stacking by NOESS and certainly not by Mrs. Burns. Stacking by the permissive user would be permitted had the appropriate premium been paid, but there is no record of any such payment by Mrs. Burns or on her behalf by NOESS. Therefore, we reverse the finding of the trial court permitting stacking by Mrs. Burns and hold that her recovery under the uninsured motorist provision of the Hartford policy is limited to the benefits as per the particular vehicle occupied by her at the time of the accident.

The trial court as well as the plaintiffs cite Seaton v. Kelly, 339 So.2d 731 (La.1976) in support of the view that stacking should be permitted in the case before us. However, we feel that a close reading of the rule of law used by the Supreme Court in that case in effect applies the premium payment rationale adopted by our court in Briley v. Falati, supra, and applied above. In Seaton v. Kelly, supra, stacking was permitted as follows:

“.if a plaintiff is an insured under two or more policies or one policy covering two or more automobiles, pays premiums or has premiums paid for his benefit for two or more different uninsured motorist coverages, he can cumulate the coverages.”

As indicated previously, the total premium of $234 was based on a premium of $9.00 per vehicle for uninsured motorist coverage. The employee is covered only while occupying a vehicle. Thus, Mrs. Burns is only insured under the policy language “to the extent” that she “occupied an insured highway vehicle”. She only occupied one van and not 26 vans. As to the other 25 vans she is not an insured. Premiums were not paid by NOESS for her benefit for two or more different uninsured motorist coverages, and Mrs. Burns could not be permitted to cumulate coverages.

AWARD OF DAMAGES: COMMUNITY OR SEPARATE PROPERTY?

The trial court in its judgment awarded unto Mr. and Mrs. Burns as plaintiffs the sum of $46,960.41. This award of damages was broken down into general and special damages as follows: $7,815.85 for medical expenses, $4,144.56 for loss of wages, and $35,000 for pain and suffering. The plaintiffs contend that the two items of special damages, namely the medical expenses and loss of wages, belong to their community property but that the award for general damages of pain and suffering is the separate property of Mrs. Burns. This contention is supported by Flowers v. U. S. Fidelity & Guaranty Co., 381 So.2d 378 (La. 1980) wherein the court stated:

“A wife’s action for damages resulting from offenses and quasi-offenses are her separate property and are recoverable by her alone. La.C.C. arts. 2334, 2402. On the other hand, claims for medical expenses for either spouse belong to the community and are recoverable by the husband as its head.”

This case does not address the damage award for loss of wages, however, it is well settled that this form of damages falls into the community. Polman v. Mohasco Corp., 371 So.2d 838 (4th Cir. 1979).

Based on the foregoing we find that the trial court was in error in awarding the total amount of damages to both Mr. and Mrs. Burns. Accordingly, the judgment should be amended so as to award the general damages of $35,000 to Mrs. Burns individually and the special damages amounting to $11,960.41 be awarded to Mr. Burns as head of the community property regime.

THE RELEASE EXECUTED BY MRS. BURNS

As previously indicated, All-Star Insurance Corp., who was the secondary liability carrier for Fernandez, was ordered liquidated because of its condition of insolvency on March 1, 1977 by order of the circuit court of Milwaukee, Wisconsin. Notice of liquidation was made to all claimants and potential claimants who wished to share in the distribution of All-Star’s assets. Apparently, Mrs. Burns filed a proof of claim against All-Star based on the alleged negligence of its insured Fernandez in causing the accident and her resulting injuries. This proof of claim contained a release provision which states:

“RELEASE PROVISION. The undersigned hereby releases Edward Fernandez, an insured of All-Star Insurance Corporation, to the extent of the insured’s applicable policy limit, of and from liability to the undersigned on the cause of action or causes of action which the undersigned has asserted against the insured. It is understood that this Release shall be void if the insurance coverage of the insured is avoided by the Liquidator.”

At the trial on the merits, Fernandez pleaded an exception of Res Judicata based on the contention that the release provision in the proof of claim filed by Mrs. Burns operated as a bar to recovery against Fernandez. This exception was denied by the trial court. In its reasons for judgment, the trial court found as a fact that All-Star was insolvent.

It is well settled in Louisiana jurisprudence that a valid compromise or release between parties to a legal proceeding requires some sort of cause of consideration. La.C.C. Art. 3071, Louette v. Security Industrial Insurance Co., 361 So.2d 1348 (3rd Cir. 1978); Hyatt v. Hartford Accident and Indemnity Co., 225 So.2d 102 (3rd Cir. 1969). This consideration need only be an adjustment of differences and a desire to set at rest all possibility of litigation. Collier v. Administrator, Succession of Blevens, 136 So.2d 774 (4th Cir. 1962).

We conclude that the trial court acted properly in denying the exception of Res Judicata thereby nullifying the effect of the release. Our conclusion is based on the fact that Mrs. Burns received no cause or consideration in executing the release provision. All-Star already owed Mrs. Burns the full amount (within its limits) of her damages, and therefore the promise on All-Star’s behalf to pay part of the already-existing debt gave Mrs. Burns nothing and could not have been a true cause or consideration for her promise of release. Additionally, from a somewhat different standpoint, one could conclude that the release provision was predicated on the proposition that All-Star would assume the liability of its insured, Fernandez, to the extent of the policy limits. When All-Star was liquidated and unable to assume this liability, there was no longer any consideration for the release of Fernandez. The other basis used in reaching our conclusion is the last clause contained in the release provision itself. It indicates that the release shall be voided if the insurance coverage of the insured is avoided. This clause is directly applicable to the matter before us as the claim by Mrs. Burns was apparently avoided by the liquidator.

AWARD OF DAMAGES

To facilitate our discussion of the award of damages we will consider the trial court’s award of damages. We will consider initially the trial court’s award for medical expenses, loss of wages and pain and suffering, followed by a review of its judgment denying the claim of Mrs. Burns for damages for her alleged mental condition.

I

The evidence reveals that after the auto accident, on the morning of October 26, 1976, Mrs. Burns returned to work that same day. She went to work the next day but left early because of the pain she was experiencing in her neck and shoulder. The next morning, or two days after the accident, Mrs. Burns was unable to get out of bed due to the pain in her neck and arm. Consequently, she was taken to the emergency room at East Jefferson Hospital for examination and treatment. Later that same day, Mrs. Burns was transferred to Metairie Hospital where she remained for four to five days. During this period of hospitalization X-rays were performed by Dr. Daniel O’Quinn which apparently proved negative. An examination by Dr. O’Quinn revealed that Mrs. Burns had soft tissue damage in the area of her neck. The plaintiff received injections of xylocaine and cortisone, as well as medication to relieve the pain associated with this soft tissue injury. She was discharged on November 1, 1976.

Following her discharge, Mrs. Burns continued to experience pain in the neck area. On November 11,1976, the plaintiff went to see Dr. Vernon Kroll, a general surgeon. At that time his examination revealed that Mrs. Burns had no localizing neurological defects, but she did have a limitation of motion of the head upon the neck and spas-ticity of the neck muscles, particularly the trapezius. The plaintiff’s condition did not improve over the course of the next few weeks and she was re-hospitalized on December 17, 1976 at Southern Baptist Hospital for treatment and tests. Upon her admittance to the hospital, Mrs. Burns was placed in traction at the recommendation of Dr. Kroll. At the conclusion of the traction period she continued to experience pain in the area of her neck whereupon Dr. Donald Richardson, a neurological surgeon, was called in to review her case. Dr. Richardson’s examination revealed findings similar to those made by Dr. Kroll. A myelogram was performed on the plaintiff which revealed a large cervical disc puncture at the C — 4 disc level which could not be successfully treated by conservative therapy. Consequently, surgery was performed on January 12,1977 resulting in the removal of her disc at the C-4 level. Following the surgery, Mrs. Burns remained in the hospital for an additional 7 days after which she was discharged and told by Dr. Richardson to remain in bed for 3 weeks. Dr. Richardson prescribed a cervical collar for the plaintiff as well as medication to relieve the pain associated with the surgery. Examination by him one month after the surgery revealed that Mrs. Burns was recovering according to schedule. At that time, she complained of mild neck and shoulder discomfort. Dr. Richardson permitted the plaintiff to increase her activities including driving an automobile. Over the course of the next 6 months, the plaintiff continued to visit Dr. Richardson for examination and treatment of the pain in her neck area. X-rays performed in August of 1977 revealed that the fusion was fusing properly. Mrs. Burns was discharged at that time whereupon Dr. Richardson gave the following prognosis: the plaintiff has a permanent disability in the cervical spine area of 10 to 20%; the plaintiff would be able to return to work including the same activities that she performed prior to the surgery; and she had no limitation in the use of her upper extremities.

At the time of her discharge in August of 1977 Dr. Richardson suggested that Mrs. Burns visit Dr. Kroll for further medical care. Dr. Kroll examined and treated the plaintiff on a monthly basis through April of 1978, after which she was apparently discharged. Mrs. Burns continued to complain of pain in the neck area during the course of these visits. After this series of examinations, Dr. Kroll came to the conclusion that as of April, 1978 Mrs. Burns would be unable to return to any occupation which would require persistent use of her extremities, such as driving or picking up weights. This conclusion was not permanent as it was possible that the plaintiff could be rehabilitated at some point in time in the future.

Finally, the testimony of both Drs. Richardson and Kroll reflect the view that the injuries and subsequent surgery were caused by the accident.

Based on this evidence the trial court entered judgment awarding to the plaintiffs $7,815.85 in medical expenses, $4,144.56 in lost wages and $35,000 for pain and suffering for a total figure of $46,960.41. The plaintiffs contend that the evidence presented warrants an increase in the award. However, upon a review of the evidence presented we conclude that the award by the trial court was not manifestly erroneous and did not constitute an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

We recognize the conflict in the prognoses given by Drs. Richardson and Kroll. Apparently, the trial court adopted the view of Dr. Richardson in reaching its decision as to the award of damages. It is well settled that the trial court as the trier of fact is in the best position to view the testimony of the various witnesses, and its findings cannot be disturbed in the absence of an abuse of discretion. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Accordingly, we find that the trial court has not committed an abuse of discretion.

II

As indicated previously, we are now faced with a review of the trial court denial of the claim raised by Mrs. Burns for damages for her alleged mental condition.

A review of the record before us indicates that Mrs. Burns has had a history of emotional disturbances and periods of depression and anxiety dating back to the time when she was six years old, when nerve medication was prescribed for her. A review of this history can be described best by considering the events in her life prior to the accident and those occurring after the accident. During the pre-accident period of her life, Mrs. Burns had encountered numerous surgeries including: 15 dilation and curettages, a hysterectomy, a hemorrhoidec-tomy, a tonsilectomy, an appendix removal and a skin removal. Other medical difficulties experienced by the plaintiff included 6 miscarriages, periods of blood vomiting, a heart murmur, and a gastric ulcer. Besides these numerous problems and the trauma and anxiety associated with them, Mrs. Burns has experienced other pre-accident difficulties which have affected her mental condition. They include: several periods of separation from her husband, one for a period of nine months, a period of time in which her mentally disturbed brother-in-law lived with her, and a weight condition. These numerous mental and physical problems caused her to miss work at NOESS on numerous occasions. These absences became so numerous that NOESS asked her to resign her position of employment, but no such resignation was made. Mrs. Burns attributed these absences in large part to the marital difficulties she was experiencing.

Following the accident and the subsequent surgery the plaintiff fell into a state of depression and high anxiety. Apparently this condition existed up until October of 1977 or 1 year after the accident. On October 28, 1977 Mrs. Burns was examined by Dr. Kroll who testified that her mental condition had improved. Upon subsequent visits in November and December of 1977, and January of 1978, the plaintiff’s emotional condition improved substantially. Her next and last visit with Dr. Kroll was in April of 1978 when Mrs. Burns had returned to a depressed state, which Dr. Kroll, attributed to the death of her father in March of 1978.

Some four months later on August 15, 1978, or approximately 1 year and 10 months after the accident, Mrs. Burns visited Dr. Albert Cohen, a psychiatrist. Dr. Cohen conducted a 45 minute interview with the plaintiff, most of which centered around a review of her history. Based on this 45 minute interview and a brief review of some of the medical reports of Drs. Kroll and Richardson, Dr. Cohen concluded that the plaintiff’s condition of depression and anxiety was caused by the accident occurring in October of 1976. Dr. Cohen next saw Mrs. Burns approximately one year later in July of 1979. After this brief interview he reached the same conclusion that her mental condition was caused by the accident. He further indicated that Mrs. Burns was in need of psychiatric treatment for a period of 6 months to 2 years.

In denying Mrs. Burns claim of damages for her alleged mental condition, the trial court gave the following reasons: 1.) The accident experienced by the plaintiff was another in a series of traumatic events in her life; 2.) the plaintiff would be in her present mental condition whether this accident did or did not occur; 3.) because of her past problems Mrs. Burns was very vulnerable; and 4.) the loss of her father had a substantial impact upon her emotional condition.

After considering both the evidence and the judgment of the trial court, we cannot say that its decision to deny damages for Mrs. Burns’ mental condition was manifestly erroneous. The trial court’s reasons for judgment are accurate and indicative of the careful consideration given by that court to this particular matter. In further consideration of this issue we note that the trial court considered the depression and anxiety experienced by the plaintiff in connection with the accident in reaching its award of $35,000 for pain and suffering.

Although Dr. Cohen testified that the plaintiff had a mental condition and further that this condition was caused by the accident, there is ample basis to support the trial judge’s discounting of this testimony. The interview conducted with Mrs. Burns was very brief, only 45 minutes, and occurred almost two years after the accident, making it difficult to believe that such an interview could yield an accurate conclusion; Mrs. Burns had experienced numerous other emotional difficulties since the accident including the breakup of her marriage, the death of her father and gall bladder surgery, making it more probable than not that her condition some two years after the accident was attributable to these events as opposed to the accident itself; and the testimony of Dr. Kroll that Mrs. Burns’ mental condition had improved substantially as of January 1978, after which her condition regressed dramatically due to the death of her father.

THE INABILITY TO PAY DOCTRINE

In the judgment entered by the trial court the liability of Fernandez was limited to $10,000. In reaching this decision the court relied on the inability to pay doctrine as applied in Barnett v. Vanney, 360 So.2d 617 (4th Cir. 1978). Under this doctrine the inability of a defendant to pay a judgment is a proper consideration in assessing the amount of damages for which a defendant will be held liable for his tor-tious acts.

In reviewing our previous findings regarding the award of damages we indicated that a total award of $46,960.41 was not an abuse of discretion. Recall that this damage award consists of $7,815.85 in medical expenses, $4,144.56 in lost wages, and $35,-000 for pain and suffering. Thus almost $12,000 (plus interest for about 3 years) are special damages, and that amount, even after deduction of Fernandez’s $5,000 insurance, will almost consume Fernandez’s alleged entire net worth of $10,000. Under those circumstances, as in Becnel v. Ward, 286 So.2d 731 (La.App. 4th Cir. 1973) writ refused 290 So.2d 900, the quantum set by the trial judge must remain beyond defendant’s ability to pay and he may face bankruptcy in any event. Accordingly, there appears no reason to apply the inability to pay doctrine (which in effect was not truly applied against plaintiffs but rather against Hartford in the judgment) against the plaintiffs.

We point out that the trial judge fixed the total damages at $46,960.41, which we consider to be a fair award. Liability for this sum is only $5,000 from the Toledo policy and $5,000 from the Hartford policy. If we apply the inability to pay doctrine and limit Fernandez’s liability to $10,000 the plaintiffs are limited in recovery to $20,000. Deducting the special damages of $11,960.41 leaves plaintiffs with a recovery of only $8,039.59 for general damages as opposed to Cue $35,000 set by the court. (The recovery of $10,275.52 of this amount by Northwest as workman’s compensation carrier under R.S. 23:1101 and 1103 is presumably offset by plaintiffs’ previous receipt of that amount from Northwest). Thus the effect of limiting the liability of Fernandez is to deny the recovery for the damages they have suffered.

The inability to pay doctrine has a long history dating back to 1898 when it was first applied in Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898). Since that time it has been applied on numerous occasions by the various courts of our state. As indicated previously, the rule permits the admittance of evidence concerning the ability of the defendant to respond in damages to be considered in determining the amount of the judgment to be awarded. The theory behind this doctrine was espoused by our learned brothers of the 2d Circuit in Cole v. Sherrill, 7 So.2d 205 (2d Cir. 1942), wherein it was stated:

“It has never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at.”

We are hard pressed to understand how such a doctrine could remain in our jurisprudence in light of the equally well known policy of Louisiana law that damages awarded in tort cases are compensatory in nature and not punitive. If damages are to be compensatory they should be assessed according to the plaintiff’s injuries as a result of the defendant’s fault and not according to the defendant’s economic position in life. Moreover, it appears to us that there may be merit to the argument that the application of the inability to pay doctrine is violative of the Equal Protection Clause of Art. 1 § 3 of the Louisiana Constitution in that a defendant in a tort suit is classified according to his degree of wealth. For the defendant who is in impecunious circumstances his liability for his tortious acts is limited according to these circumstances whereas for the defendant whose financial disposition is not restricted, his liability for his delicts is limitless. We do not suggest that such a classification is a suspect one or that there is a violation of a fundamental constitutional right. Chabert v. La. High School Athletic Association, 323 So.2d 774 (La.1975). However, we submit that this classification appears to be arbitrary. Furthermore, perhaps the theory behind the doctrine is not a rational one in light of the prevailing rule of law that, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La.C.C. Art. 2315. Equally troublesome to us is the paradox in the law which permits the admittance of evidence on a defendant’s inability to pay for his tortious acts but does not permit evidence on the defendant’s ability to pay. Ashley v. Nissan Motor Corp. in USA, 321 So.2d 868, 874 (1st Cir. 1975).

In recent years the equity and usefulness of this doctrine has been challenged. Most notably in Davis v. Moore 354 So.2d 1379 (La.1978), where a justice of the Supreme Court, concurring in the court’s decision to deny a writ of certiorari or review, indicated that the court should, “.. . . overrule the doctrine that the poverty of the defendant should reduce damages for which a tortfeasor is held liable... ” Also see: Davis v. Moore, 353 So.2d 740, 743 (4th Cir. 1977). Furthermore, we note that because of the harsh consequences which this doctrine can create in its application certain limitations have been placed upon its application. In Lacaze v. Horton, 100 So.2d 252 (2d Cir. 1958) the court indicated that this doctrine should not be applied to the extreme. The court stated:

“It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant.”

A second limitation was adopted in Daniels v. Conn, 382 So.2d 945, 953 (La.1980) wherein the court indicated that:

“. . . . where there are solvent and insolvent tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge (trier of fact) in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tortfeasor defendants at .the trial on the merits of plaintiff’s claim.”

In considering the foregoing, an application of the inability to pay doctrine to the facts before us represents an application to the extremes. By limiting the liability of Fernandez to $10,000, coupled with the liability of Hartford and Toledo and the claim of Northwest as the workman’s compensation insurer, the recovery by plaintiffs is inadequate and unreasonable. As indicated in the jurisprudence above, this doctrine should not be used to reduce the allowance of damages to the plaintiffs to a bare minimum. Therefore, we find that the trial court was in error in limiting the liability of Fernandez to the sum of $10,000.

For the reasons expressed, the judgment of the trial court is reversed in part, amended in part and affirmed in part, and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there is judgment in favor of plaintiffs in the sum of $46,960.41, apportioned $35,000 to Linda Gail Burns and $11,-960.41 to David Burns on behalf of the community between them, and against the defendants as follows:

1) against Edward Fernandez and Toledo National Insurance Company in solido for $5,000 with legal interest from judicial demand until filed in registry of court;
2) against Edward Fernandez and Hartford Insurance Company in solido for $5,000, with legal interest from date of judicial demand until paid;
3) against Edward Fernandez for $36,-960.41, with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED there be judgment in favor of Northwest Insurance Company and against plaintiffs, Linda Gail Burns and David Burns, and the defendants Edward Fernandez and Toledo National Insurance Company recognizing its claim in the amount of $10,270.52 and granting apportionment of the above judgment in accordance with R.S. 23:1103 and with Fontenot v. Hanover Insurance Company, 385 So.2d 238 (La.1980).

Those portions of the judgment appealed dismissing the workman’s compensation demands of Linda Gail Burns against Northwest Insurance Company and the Easter Seal Society and setting expert witness fees are affirmed.

Trial court costs are assessed against defendants Edward Fernandez, Toledo National Insurance Company and Hartford Insurance Company in solido. Appellate court costs are assessed against defendants Edward Fernandez and Toledo National Insurance Company in solido.

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED IN PART AND RECAST.

      . At the time of this accident in October of 1976 R.S. 22:1406 had not as yet been amended so as to prohibit “stacking” under uninsured motorist provisions of insurance policies. The amendment prohibiting “stacking” was adopted by the legislature the following year in 1977 by Act No. 623 § (1).

      . We note that the rule of law enunciated in Seaton v. Kelly, supra, was adopted from numerous other cases from the Supreme Court. See Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972).

      . The recovery of the workman’s compensation carrier payments is not governed by the same rules applicable to recovery by plaintiffs. We call attention to the case of Fontenot v. Hanover Insurance Company, 385 So.2d 238 (La. 1980) which differentiates between the recovery of the carrier from the tort-feasor and the right of preferential payment under the statute against the employee. The court noted, 385 So.2d 240: “It does not appear that the legislature intended for the employer to be reimbursed from the employee’s award for items which the employee has not recovered from the third person.”
      Along this same line of reasoning, we also note the case of Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir. 1980) writs granted, in which we held that a workman’s compensation payer does not have a claim against proceeds from an action against an uninsured motorist insurer.


author: DOMENGEAUX, Judge.

text:
    CITY OF LAFAYETTE, Plaintiff-Appellee, v. Camille Joseph DELHOMME, Defendant-Appellant.
    No. 8167.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Logan & Viguerie by P. Robert Viguerie, Lafayette, for defendant-appellant.
    Allen, Gooch & Bourgeois, Joel E. Gooch, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

At issue is whether or not the landowners in this expropriation proceeding are entitled to attorney fees.

On December 28,1978, the City of Lafayette (the City) filed suit to expropriate a parcel of land owned by Camille and Mildred Delhomme (landowners), pursuant to La.R.S. 19:101 — 115. The City sought 11,-576.02 square feet of a triangular tract of land with 37,706.12 square feet of area in order to extend North St. Antoine Street. Included within the area sought were portions of a wood residence, a grocery store, and a concrete parking lot, and several gas pumps.

Trial was held on August 1 and 2, 1979. The area sought by the City was successfully expropriated, leaving the landowners with two remaining tracts separated by the expropriated tract. The remaining tracts have areas of 1,281.8 square feet and 24,-848.3 square feet. Landowners were originally awarded $233,000.00 as compensation for the full extent of their losses in a judgment signed August 2, 1979, but after a new trial was granted to reconsider the evidence, the award was increased to $260,-938.00 in a judgment signed February 5, 1980. The court itemized the award as follows:

Real property taken $177,891.00
Business losses 9,974.00
Value of walk-in coolers and shelving 25,573.00
Value of inventory 47,500.00
TOTAL $260,938.00

In addition, the court awarded the landowners $6,500.00 as expert witness fees. Simultaneously with the rendition of each judgment, the City paid into the registry of the court all amounts awarded and those funds have been received by the landowners. Neither party questions the amount of the award.

On March 6, 1980, the landowners filed a motion for attorney fees equal to 25% of the difference between the highest amount offered by the City prior to trial, an amount landowners contend is $175,000.00, and the $260,938.00 awarded by the court. Trial of this motion was held April 28, 1980, and on May 7, 1980, the court denied the request for attorney fees. Judgment to that effect was signed July 18, 1980. From that judgment the landowners have appealed.

The landowners claim attorney fees under La.R.S. 19:109A. The pertinent part of that statute provides:

“. . . Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property pri- or to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees . . . . ” (Emphasis added).

La.R.S. 19:109, one of several statutes dealing with expropriations by a municipal corporation (see La.R.S. 19:101-115), was enacted by Act 453 of the 1977 Regular Session of the Louisiana Legislature and has never been interpreted nor cited. However, La.R.S. 19:8, relative to expropriations by the state and certain corporations, is identical to 19:109 and has been frequently construed. Since we see no reason to interpret the two statutes differently, we will consult jurisprudence interpreting 19:8 to determine whether attorney fees are due, in this instance, under 19:109.

In our most recent applications of 19:8, this Court has held that the statute says the court may award reasonable attorney fees. Therefore, the decision of whether or not to award attorney fees is left to the court’s discretion. Louisiana Intrastate Gas Corporation v. Guidry, 357 So.2d 830 (La.App. 3rd Cir. 1978), writ denied 359 So.2d 1308 (La.1978); Louisiana Resources Company v. Langlinais, 383 So.2d 1356 (La. App. 3rd Cir. 1980). In both cases, the trial court’s decision not to award attorney fees was upheld on appeal because no abuse of discretion had been shown. After reviewing the evidence in the instant case, we conclude that the trial court did not abuse its discretion in refusing to award attorney fees.

Testimony adduced at the trial of the motion for attorney fees revealed that the City, immediately before trial, made a cash offer to the landowners of $175,000.00 and further stipulated that (1) the landowners could remain on the expropriated premises, living in the house and operating the grocery store, until a replacement store was available for occupancy, (2) the City would bear the expense of moving the landowner’s grocery stock and equipment to the replacement store, (3) the City would bear the expense of removing the house, grocery store, and concrete parking lot from the premises, after which the City would construct driveway entrances to the remainder of the property at locations selected by the landowners, and (4) the street construction project specifications would require the contractor to provide access to the grocery store on the remainder of the property throughout construction.

The landowners contend that the City’s offer amounted to only $175,000.00. They believe the non-pecuniary portions of the offer are valueless. Consequently, based on what they perceive to be a great disparity between the offer and the $260,938.00 award, landowners argue the trial court abused its discretion in failing to award attorney fees.

The trial court offered no reasons to support its refusal to award attorney fees nor did the court assign a value to the City’s offer. Nevertheless, we find that the trial court could have decided that the non-pecuniary portions of the offer were valuable and significantly increased the overall value of the offer. This is particularly true of stipulation (2), whereby the landowners would have retained the ownership of the walk-in coolers and shelving (the grocery equipment) and the inventory (grocery stock), items valued at $25,573.00 and $47,-500.00, respectively. In addition, the City offered to move these items for the landowners. According to the evidence, such a move would cost $8,850.00. Inasmuch as the court ordered the City to pay the landowners for the equipment and the stock ($73,073.00 of the $260,938.00 award), it is reasonable to assume that the court, solely for the purpose of determining whether attorney fees should be awarded, added to the City’s offer the value of the equipment and the stock as well as the cost for moving those items. By adding these figures ($73,-073.00 and $8,850.00), the value of the City’s offer is increased from $175,000.00 to $256,-923.00, an amount only $4,015.00 shy of the court’s final award. In addition, the court may have felt any or all of the other stipulations were valuable, and had the effect of increasing the amount of the offer. We do not think it was an abuse of discretion for the court to have believed that the nonpecu-niary portions of the offer were valuable.

Although a disparity may have existed between the amount of the offer and the amount of the award, the trial court did not err in refusing to award attorney fees. The record demonstrates that the City negotiated in good faith and that the real value of its offer was only slightly less than the award. Additionally, this was a complex case involving new jurisprudence (see footnote 1) and close questions on compensability. Litigation was apparently unavoidable.

The case of State, Through Department of Highways v. Johnson, 341 So.2d 12 (La. App. 3rd Cir. 1977), writ refused 343 So.2d 203 (La.1977), relied upon by the landowners, is inapposite. Therein, this Court reversed the trial court’s denial of attorney’s fees and awarded $1,500.00 when the State’s offer was $7,675.00 lower than the award. However, the attorney fees were justified because the state’s valuation of $22,105.00 was based on a method of appraisal previously rejected by the courts. The landowner was required to obtain a lawyer and litigate the amount to which he was entitled. Only after the landowner contested its suit did the State have a second appraisal made using the correct method. This second appraisal yielded the proper value of the expropriated property but by then attorney fees had already been incurred by the landowner. It is evident from the Court’s opinion in Johnson that attorney fees were awarded because the State unnecessarily forced the landowners to hire an attorney to seek the correct measure of compensation. Johnson is therefore distinguishable because in the instant ease litigation was probably unavoidable due to the complex issues.

Landowners have not demonstrated that the trial court abused its discretion in refusing to award attorney fees. Since our review of the evidence has revealed no abuse of discretion, the judgment of the trial court which denied attorney fees is affirmed at the landowners’ cost.

AFFIRMED.

      . Since the award has not been appealed, we express no opinion as to whether or not the court may have erred in requiring the City to buy the store’s movable contents. In making the award, the court indicated that it was guided by Article 1, Section 4 of the Louisiana Constitution of 1974, which provides that a landowner “shall be compensated to the full extent of his loss”, and by State, Department of Highways v. Constant, 369 So.2d 699 (La.1979), which expanded traditional concepts of compensation to landowners in expropriation suits.


author: GUIDRY, Judge.

text:
    LIVINGSTON ROOFING COMPANY, INC., Plaintiff-Appellant, v. E. E. RABALAIS & SON, INC., Defendant-Appellee, and The Diocese of Alexandria-Shreveport, Defendant-Appellant.
    No. 8254.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Provosty, Sadler & DeLaunay, Albin Provosty, III, Alexandria, for defendant-appellant-appellee.
    Jerry F. Davis, Baton Rouge, for plaintiff-appellee-appellant.
    Boatner & Luke, R. H. Luke, Bunkie, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

In this suit Livingston Roofing Company, Inc. seeks judgment against the defendants, in solido, for the sum of $22,820.44, and recognition of plaintiff’s alleged lien and privilege upon certain property described in its petition as belonging to The Diocese of Alexandria-Shreveport.

The facts of the instant matter are without dispute. Sometime in the year 1978 the bell tower of St. Anthony’s Catholic Church in Bunkie, Louisiana, and the steeple cross were damaged by a wind storm. Shortly thereafter the pastor of St. Anthony’s presumably contacted E. E. Rabalais & Son, Inc., a general contractor doing business in Bunkie, Louisiana, who in turn contacted plaintiff. As the result of an “on-the-job” conference attended by the pastor of St. Anthony’s, Father Pat Murphy, Michael D. Rabalais, representing E. E. Rabalais & Son, Inc., and Shaftner Chenevert, President of Livingston Roofing Company, Inc., which was held sometime prior to December 27, 1978, plaintiff agreed to do certain repair work to the Church’s bell tower, steeple cross and roof. The essential particulars of the agreement entered into by the parties at the “on-the-job” conference is set forth in a letter dated December 27, 1978, written by E. E. Rabalais & Son, Inc., (hereafter, Rabalais) and addressed to Livingston Roofing Company, Inc., (hereafter, Livin-ston). The letter agreement, introduced in evidence as plaintiff’s exhibit 1, reads in pertinent part as follows:

“In follow up to our on-the-job conference, we hereby request that you proceed as necessary to remove the steeple cross; repair as required; and re-install to it’s (sic) position prior to the storm damage. Please send us certificates of insurance coverages for general liability and work-mens (sic) compensation before any work is done.
While your crews are repairing the cross, we ask that they check out and repair the leaks around the bell tower base where the pitched roof intersects the tower and any other potential problems which may be apparent upon inspection. Please keep the cost of repairs on this work separate from that of the repairs to the cross, as the insurance company is to pay for the cross repairs (as evidenced by copy of letter from the Adjuster) and St. Anthony’s Church will pay for repairs of leaks etc.
It is understood that due to the nature of this work, you are unable to give us a firm quotation, so we authorize you to proceed on a labor and materials basis plus a reasonable percentage for overhead and profit. We request your assurance that only the best workmanship and materials be employed in this project and that you will stand behind your repairs for the usual guarantee period.”

Shortly following receipt of the above letter Livingston forwarded a certificate of insurance coverage to Rabalais and commenced the repair work which was completed sometime in the latter part of February, 1979. Upon completion of the work Raba-lais and the Church refused to make payment to Livingston for the work performed because allegedly the amount charged by Livingston was excessive. This suit followed.

According to invoices introduced in evidence as plaintiff’s exhibits 3 and 4, Livingston’s charges for the work performed are itemized as follows:

Total Materials . 1443.21
Total Labor . 9992.33
Travel Time & Truck Expense . 1219.40
Equipment rental. 1222.65
Sub-Total . $13877.59
Labor Insurance, Taxes etc. 2697.93
Overhead (35% x $13,877.59) .... 4857.16
Profit (10% of $13,877.59). 1387.76
Grand Total . $22820.44

At the conclusion of the trial the lower court dismissed plaintiff’s suit against Ra-balais, concluding that the work was not performed for Rabalais as general contractor and the Diocese as owner, but rather for the Diocese, with Rabalais acting as the latter’s agent. Further, the court below rendered judgment in favor of Livingston and against the Diocese of Alexandria-Shreveport in the sum of $17,963.28, concluding that:

“As to the materials and labor charged, Livingston Roofing Co., Inc. has proved its case by a preponderance of the evidence adduced. With the exception of the 35% markup for overhead, this court will give judgment to plaintiff for quantum as prayed.”

Livingston has appealed seeking an increase in the amount awarded by the trial court and reversal of the judgment insofar as it dismisses its suit against Rabalais. The Diocese of Alexandria-Shreveport appealed however, its appeal was subsequently dismissed by this court upon failure of the Diocese to file a brief within the delay required by the rules of this court.

The issues on appeal are: (1) did the trial court err in failing to award Livingston a reasonable sum to compensate for “overhead”; and, (2) did the trial court err in dismissing plaintiff’s suit against Rabalais. We answer both queries affirmatively.

The parties agreed at the December 1978 “on-the-job” conference, as confirmed by the letter written by Rabalais, that Livingston would proceed with the repairs on a labor and materials basis “plus a reasonable percentage for overhead and profit ”. The trial judge, although finding the billing for materials and labor to be accurate, allowed plaintiff 10% for profit but completely disallowed any percentage for overhead. This was error.

It is well settled that parties are bound by their agreements so long as such agreements are not contra bonos mores or violative of some prohibitory law. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961); Amacker v. Wedding, 363 So.2d 223 (La. App. 4th Cir. 1978), writ refused. The provision in the contract fixing the amount due plaintiff for the work performed as labor and materials plus a reasonable percentage for overhead and profit is not contra bonos mores or violative of a prohibitory law and thus has the force of law between the parties. Presumably, the trial court found that plaintiff’s allocation of 35% for overhead was not reasonable. Be this as it may it was error for the trial court to completely disallow plaintiff a reasonable percentage for overhead.

Although Mr. Chenevert testified that Livingston generally charged 35% for overhead in all of its cost-plus contracts, all other experts who testified at the trial of the instant matter were generally in agreement that 10% for profit and 15% for overhead were customary in the industry. We accept the latter percentages as “reasonable” and accordingly, we will amend the trial court judgment so as to allow plaintiff the additional sum of $2081.64 (15% X $13877.59). See Swan v. Bern Mas Enterprises, Inc., 299 So.2d 845 (La.App. 4th Cir. 1974).

We next consider the second issue presented in this appeal. The trial judge dismissed plaintiff’s suit against Rabalais concluding that Rabalais was acting solely as the agent for the Diocese in all negotiations with Livingston. As aforestated we find this conclusion to be manifestly in error.

It is well settled that an agent is responsible to those with whom he contracts when he does not disclose that he is acting as an agent. LSA-C.C. Article 3013. Guillory v. Courville, 158 So.2d 475 (La.App. 3rd Cir. 1963); Bush v. Saucier, 197 So.2d 907 (La.App. 1st Cir. 1967).

There is nothing in the record to establish that Rabalais’ agency was ever disclosed to Livingston. Michael Rabalais, who represented Rabalais in all negotiations, did not testify that he ever informed Livingston that he was acting as agent for the Diocese. Father Murphy did not testify that Livingston was ever informed that Ra-balais was acting as agent for the Diocese. Following the “on-the-job” conference the letter agreement was written by Rabalais as general contractor to Livingston and contains no language whatever even implying the existence of an agency relationship between Rabalais and the Diocese. Following receipt of the latter the certificate of insurance was issued by Livingston to Ra-balais, as contractor for the Diocese. In sum there is nothing in the record which would even suggest that Livingston was informed that an agency relationship rather than a contractor-owner relationship existed between Rabalais and the Diocese until after the instant suit was filed. Under such circumstances it is clear that Rabalais cannot avail itself of the special defense of agency and that plaintiff is entitled to judgment in solido against both the Diocese of Alexandria-Shreveport and E. E. Raba-lais & Son, Inc.

For the reasons assigned the judgment of the trial court is amended in part and reversed in part and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, LIVINGSTON ROOFING COMPANY, INC., and against defendants, E. E. RABALAIS & SON, INC., and THE DIOCESE OF ALEXANDRIA-SHREVEPORT, in solido, in the full sum of TWENTY THOUSAND FORTY-FOUR AND 92/100 ($20,044.92) DOLLARS, together with legal interest on such sum from date of judicial demand until paid.

Expert witness fees are fixed by the court at $150.00 each per courtroom appearance. All costs are assessed against the defendants.”

Costs of this appeal are assessed in equal proportions to The Diocese of Alexandria-Shreveport and E. E. Rabalais & Son, Inc.

AMENDED IN PART, REVERSED IN PART AND RENDERED.

      . The agreement was not recorded and the owner did not require a bond pursuant to LSA-R.S. 9:4802.

      . The judgment of the trial court does not recognize the existence of a lien and privilege by Livingston on the property of the Diocese of Alexandria-Shreveport described in plaintiffs petition. Presumably, Livingston abandoned this portion of its demand against the defendants as the recorded lien affidavit was not offered in evidence at the time of trial nor does Livingston seek recognition of such lien and privilege on appeal.

      . According to Livingston’s appellate brief the Diocese fully paid and satisfied all sums due under the judgment rendered by the trial court on December 8, 1980.


author: CULPEPPER, Judge.

text:
    Spiro A. TALAMBAS, d/b/a Allen Meat Company, Plaintiff and Appellee, v. LOUISIANA STATE BOARD OF EDUCATION (Now Named Louisiana State Board of Elementary and Secondary Education), Defendant and Appellant.
    No. 8280.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Elaine F. Doyle, Baton Rouge, for defendant and appellant.
    John P. Navarre, Oakdale, for plaintiff and appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   CULPEPPER, Judge.

Plaintiff sues for damages for loss of use of a building and equipment and for deterioration of the building due to defendant’s continued possession of the leased premises after the 6-month term of the lease expired. The original petition was filed on August 26, 1975 against the lessee, Louisiana State Board of Education. A default judgment was obtained by plaintiff against defendant on September 19, 1975 in the amount of $88,600. The attorney general, William Guste, Jr., then brought an action to annul the default judgment on the grounds of lack of citation and service of process. The district court, after a hearing on the merits, held the default judgment was valid and dismissed the attorney general’s suit. On appeal, this court reversed and remanded. Talambas v. Louisiana State Board of Education, 365 So.2d 1183 (La.App. 3rd Cir. 1978).

After the remand, a supplemental and amending petition was filed by plaintiff updating to 1979 his demands for damages totaling $175,000. Although reconduction of the lease was not pleaded, judgment was rendered by the district court in favor of plaintiff for $43,200, representing rentals of $1,200 per month for 36 months the lease was held to be reeonducted. Defendant appealed.

On appeal, defendant contends the trial judge erred in holding the lease was recon-ducted monthly from October 17, 1971 to October 17, 1974.

The pertinent facts show that by written instrument dated April 16, 1971 plaintiff leased to the Louisiana State Board of Education a meat processing facility to be used as a vocational training school for meat cutting. The facility, located near Oakdale, Louisiana, consisted of approximately 7,000 square feet and included equipment to accommodate 25 students. The lease was for a term of six months (from April 16,1971 to October 17, 1971) at a monthly rental of $1,200. The lease agreement also contained an extension clause granting the lessee an option to extend the lease for an additional one-year period. The option was not exercised.

The 6-month lease ending October 17, 1971 was the last of a series of similar leases entered into between plaintiff and defendant after plaintiff bought the property in 1969 from T. J. Strother. Before 1969, Strother had similarly leased to defendant since he constructed the building in 1963. After Strother sold the property to plaintiff in 1969, Strother acted as agent for plaintiff in continuing to lease to the State and in maintaining the premises.

The meat cutting course lasted six months. As each new class was organized, a new 6-month lease was signed. At the end of each term, the school closed. Strother testified the instructor would usually tell him when a new class was going to start and when a new lease would be signed. There was usually a lull between classes. Strother indicated the lull was sometimes up to 90 days.

On the final day of the lease ending October 7, 1971, graduation ceremonies were held. Strother testified that the instructor, Mr. Rivett, said he would not return as the instructor, but that he thought a new instructor would arrive for a new class. According to Strother, Rivett locked the door to the building and kept the keys. Strother testified Rivett left knives, hard hats, seats, a blackboard, a power scale, office furniture and files in the building.

It was Strother’s testimony that after no new instructor or other representative of defendant came back to the building, he telephoned several persons in the office of the Department of Education in an attempt to find out whether defendant was going to reopen the school and sign a new lease. He stated he could have rented to other parties. Strother says he never received an answer to his calls, so he finally wrote letters to Mr. A. J. Roy of Marksville, chairman of the Louisiana State Board of Elementary and Secondary Education, to Mr. J. Kelly Nix, Superintendent of Education, and to Mr. A. Earl Ingrem, who worked as an assistant in the office of Mr. Michot. Strother says he mailed letters to these three individuals by registered mail, return receipt requested. He identified and plaintiff introduced into evidence the return receipts for these letters. We notice these return receipts are dated in 1977, which was two years after the original suit was filed in this matter in 1975 and six years after the last 6-month lease expired in 1971. Also, no copies of the letters are in evidence.

Strother testified that after 1971 the building began to deteriorate. In October of 1974 he noticed water coming under the front door of the building, so he patched the roof. The lessor was responsible for such maintenance. Nevertheless, after that the building continued to deteriorate. Finally, on October 5, 1979, Strother went into the building and inspected it and found substantial deterioration requiring extensive repairs. A witness for plaintiff estimated the cost of repairs to the roof and other structural portions of the building would be $33,840.

The district court held defendant had failed to deliver possession of the premises to plaintiff after expiration of the lease, and therefore the lessor-lessee relationship continued between the parties under the theory of tacit reconduction. According to the court’s finding, after October 17, 1971 the lease continued on a month-to-month basis until October, 1974, at which time it was or should have been apparent to plaintiff that defendant had abandoned the building. The court awarded plaintiff $43,-200 as accrued unpaid rent for the 36 months following the expiration of the lease. Plaintiff’s claims for damages to the building and the equipment were denied, because the lease provides the lessor is responsible for maintenance and repairs.

We will first discuss briefly a possible procedural issue. Plaintiff’s petition does not expressly allege he seeks recovery on the theory of reconduction. He alleges the 6-month lease terminated on October 17, 1971, and that defendant remained in possession thereafter until 1979, in violation of a provision of the lease requiring that the premises be restored to the lessor on termination of the lease. The petition alleges that plaintiff lost use of the building and equipment for 100 months and that he suffered damages due to deterioration of the building. He prays for damages, not rent, in the total sum of $175,000.

There could be a question as to whether a cause of action for damages for breach of the lease, by lessee remaining in possession after the lease expired, is inconsistent with a cause of action for recovery of rent under a lease which continued by reconduction from month-to-month after the lease expired. If the causes of action are inconsistent, they should have been pleaded in the alternative. LSA-C.C.P. Article 892. However, defendant did not file in the district court a dilatory exception of improper cumulation of actions nor a motion to elect. Under LSA-C.C.P. Article 926, objections which may be raised through the dilatory exception are waived unless pleaded. Thus, defendant has waived any objection it could have raised as to improper cumulation of actions.

There is no question that plaintiff has pleaded facts sufficient for recovery under the theory of reconduction. The requirements for this cause of action, as discussed hereinafter are clearly alleged.

The principal issue is whether the lease was recondueted by the defendant’s continued and unopposed possession of the premises beyond the expiration of the term of the last lease, and, if so, for how long.

The reconduction of a lease of a house or building by the lessee’s continued possession after expiration of the lease is set forth in LSA-C.C. Article 2689 which provides:

“Art. 2689. If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he cannot be compelled to deliver up the house or room without having received the legal notice or warning directed by Article 2686.”

The reconducted lease is a continuation of the original lease in all respects except that the fixed term under the old lease is voided and the reconducted lease is considered to be by the month. LSA-C.C. Article 2685, Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970).

On appeal, defendants contend the final written lease was not reconducted because defendants no longer had actual possession of the building after October, 17, 1971. They further contend that even if defendant did continue in possession, the evidence negates a presumption of an intention of the parties to continue the lease beyond the agreed upon expiration date. At most, defendant contends there could be no presumption beyond 90 days, the longest lull between previous leases.

It is, of course, not the function of the law to force a contract upon unwilling parties. The party urging reconduction has the burden of proof. Governor Claiborne Apartments, supra. Where the evidence shows an intent to the contrary, the presumption of reconduction is inoperative. Jacobi v. Toomer, 164 So.2d 610 (La.App. 3rd Cir. 1964); Prisock v. Boyd, 199 So.2d 373 (La.App. 2d Cir. 1967); Kogos v. Lemann, 285 So.2d 548 (La.App. 4th Cir. 1973), writ refused, 288 So.2d 648 (La.1974).

Applying these rules to the present case, the first question of fact is whether defendant remained in possession of the premises after the last 6-month lease expired. This is a close question. As stated above, Strother testified that on the last day of the lease, Mr. Rivett, the last instructor, locked the building and kept the keys, telling Strother that he thought a new instructor would soon be arriving to start a new class. Also, Strother testified as to the above items of equipment which Rivett left in the building. It was Strother’s testimony that when no new instructor arrived after a few days or perhaps weeks, he began to telephone the office of the Department of Education in Baton Rouge to find out whether a new class was going to start, because he could have leased the building to other parties. This testimony by Strother is uncorroborated, but, on the other hand, it is not contradicted. Strother’s testimony is perhaps made questionable by his statements that he wrote letters requesting information as to whether defendant was going to continue to occupy the building, but he did not introduce into evidence copies of these letters, and the return receipts which he introduced as proof show that the letters were not mailed until 1977, which was six years after the lease ended.

Giving plaintiff every benefit of the doubt as to the issue of possession, we conclude that under Strother’s testimony, which is uncontradicted, the actions of Mr. Rivett in leaving some of defendant’s equipment in the building and then locking up the building and keeping the keys was sufficient to show that defendant remained in possession, at least for a short period of time.

The next issue of fact is whether the evidence as a whole supports a presumption that the parties intended the lease to continue from month-to-month for the period of 36 months found by the trial judge. We are unable to agree with the district court on this issue. The longest period that had ever elapsed between classes and between new leases was about 90 days. Strother’s uncorroborated testimony is that he could not get an answer from his calls to the Department of Education as to whether they were going to start a new class, so he simply allowed the building to remain unused, and finally this suit was filed in 1975. Although defendant has not urged prescription, we note that amounts due for rent prescribe after three years, LSA-C.C. Article 3538, which was about the time plaintiff waited to file suit. An added fact which we cannot help but notice is that after the 6-month lease expired, defendant paid no more rent. This certainly weakens plaintiff’s position that defendant is presumed to have intended to continue the lease in effect from month-to-month for a period of 36 months. Of course, there is also the added factor that during any month, plaintiff could have terminated the reconduction of the lease by simply following the procedure set forth in LSA-C.C. Article 2686, i.e., giving 10 days notice before the expiration of the month.

Under all of the circumstances, we conclude the longest period that a presumption of reconduction can be possibly found is 90 days. Accordingly, we will reduce the judgment to the sum of $3,600, representing rentals of $1,200 per month for the three months the lease was reconducted.

For the reasons assigned, the judgment appealed is amended so as to reduce the award to the sum of $3,600, plus legal interest from date of judicial demand until paid. One-half of all costs in the trial and appellate courts are assessed against the plaintiff. The other one-half of the costs are assessed against the defendant, insofar as costs of court or of appeal can be assessed against a state agency.

AFFIRMED, AS AMENDED.