author: STOKER, Judge.

text:
    S. E. HORNSBY & SONS SAND & GRAVEL COMPANY, INC., Plaintiff-Appellant, v. CHECKMATE READY MIX CONCRETE, INC., Defendant-Appellee.
    No. 7767.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1980.
    Rehearing Denied Dec. 1, 1980.

      W. Hugh Sibley and William M. Quin, Kentwood, for plaintiff-defendant in recon-vention appellant.
    Cline, Miller, Richard & Miller, Rayne Barry J. Heinen, Rayne, for defendant-plaintiff in reconvention appellee.
    Before FORET, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

This litigation began as a suit on an open account brought by S. E. Hornsby & Sons Sand & Gravel Company, Inc., (Hornsby) against Checkmate Ready Mix Concrete, Inc., (Checkmate). The total demand consisted of several increments totaling $13,-187.09. The defendant answered admitting plaintiff sold it sand and gravel but generally denying all other allegations. Checkmate coupled its answer with a reconven-tional demand for damages based on allegations that, in delivering sand and gravel to Checkmate over a period of time, Hornsby had short loaded trucks belonging to the defendant or engaged through independent contractors. The defendant-reconvenor demanded $77,893.00 to cover materials it claims it was billed for but which it never received, and to cover the cost of trucking materials not received, maintenance, wages paid, and fuel expended.

The trial court took the case under advisement and handed down written reasons for judgment. In the written reasons the trial court made findings entirely in favor of the defendant-reconvenor and made a total award to Checkmate of $48,232.74. No mention is made in the reasons for judgment or in the judgment itself of the open account claim of the plaintiff. Since the judgment awarded only $35,055.65, we assume that the trial court applied plaintiff’s demand as a credit or set off.

Our appreciation of the facts of this case varies to some extent with those made by the trial judge. However, in essence the issue in the case is whether or not the trial court properly accepted the mode of proof adopted by the reconvenor to establish the shortage which is claimed.

FACTS

Plaintiff Hornsby filed a suit on December 8, 1976. The following demands were made:

$6,584.79 with interest from Aug. 30,1976 until paid,
3,995.37 with interest from Sept. 30, 1976 until paid,
2,100.17 with interest from Oct. 30, 1976 until paid,
506.76 with interest from Nov. 30, 1976 until paid.

The interest demanded in each case was 10% per annum. An attorney’s fee in the amount of 25% was demanded on all sums due in the aggregate of principal and interest.

Checkmate admitted making purchases in its answer and stipulated that it was billed for the above indicated amounts (Tr. 4 and 5) but denied that the amounts were due because it contends it was short loaded. Counsel for Checkmate stated: “We reserve the right, in other words, to reduce the bill by the shortages that we can show.”

No written contract existed between Hornsby and Checkmate. However, it is quite clear that a verbal contract was made between Foster Ross representing Checkmate and Stanley E. Hornsby representing Hornsby in which sand and gravel would be delivered to Checkmate at the Hornsby pit in Greensburg, Louisiana, by loading trucks of Checkmate at that point. It is quite clear that the sales were to be on a volume basis rather than upon a weight basis. In proving its alleged shortages, Checkmate introduced no direct evidence. Its evidence consisted entirely of computations based upon its own records and further based upon standard or presumed standard weights of sand and gravel as recognized in the sand and gravel and ready mix concrete industries. Checkmate did do some random weight testing for approximately thirty days toward the end of business relations with Hornsby.

Under the contract Checkmate’s trucks made all deliveries and they were loaded at Hornsby’s pit in St. Helena Parish. The materials delivered at Hornsby’s location in St. Helena Parish were then transported to Checkmate’s plant in Rayne, Louisiana. Loading was done primarily by employees of Hornsby. However, Checkmate’s employees and independent contractors loaded their own trucks on special occasions when Hornsby employees were not present, principally at night and on weekends. Loading by Checkmate employees was engaged in to some degree but this fact does not affect the case. There was no proof that these drivers were guilty of short loading. Those who did load their own trucks on occasion testified that they followed Hornsby’s instructions in loading.

The following facts and conclusions are stated by the trial court in its reasons for judgment:

“Sometimes in late 1976 defendant, Checkmate, became suspicious that they were not receiving the quantity of sand and gravel that they were being billed for and began having their trucks weighed at scales approximately ten (10) miles from where the sand and gravel was picked up at plaintiff’s plant. Additionally, the trucks were later weighed at the Breaux Bridge weigh scales on Interstate 10 before returning to defendant’s plant in Rayne, Louisiana. Calculating the weight of a cubic yard of gravel and a cubic yard of sand defendant was able to ascertain that shortages were in fact occurring.
“The defendant, Checkmate, introduced evidence of experts in concrete who testified as to the weights of sand and gravel which were per cubic yard of sand, 2,850 pounds and for a cubic yard of gravel, 2,700 pounds. They further testified that variations would occur because of gradation, moisture content and other factors such as sand blowing off during transit. Calculations were then made based upon these figures as to the quantity of concrete made and it was testified as to the weight of gravel and concrete which was necessary to constitute a cubic yard of concrete and these amounts are .69 cubic yards of gravel and .47 cubic yards of sand are necessary in the manufacture of one (1) cubic yard of concrete.
“The Court is impressed by the testimony of defendant’s witnesses as to the manner in which the shortages were ascertained and accordingly, the Court does find that in fact in the years 1975 and 1976, defendants were shorted certain quantities of sand and gravel.
“As previously testified .69 yards of gravel and .47 yards of sand are necessary in the manufacture of each cubic yard of concrete. By converting the weight of sand and gravel to cubic yards a figure then can be obtained showing the cubic yards of sand and gravel actually sold by plaintiff to defendant. It is also necessary that a beginning and ending inventory of stock be taken to determine the actual quantities delivered. Experts further testified that a 4% variance could be allowed for blowing sand and a 1% variance for gravel.”

The trial court found that shortages did occur in 1975 and 1976. It made what is considered appropriate awards after making certain adjustments which reflected among several factors the beginning and ending inventories. The trial court found that the value of the total net shortage for the two years for gravel was $8,703.19 and that amount was awarded. The value of the net shortage found and awarded for sand was $5,073.73. The sum of $34,455.82 was awarded as expenses “for trucking sand and gravel not obtained because of shortages previously shown.” The total award mentioned in the court’s reasons for judgment was $48,232.74. (Tr. 47).

The formal judgment stated the award to be $35,055.65. (Tr. 52). The trial court evidently recognized the plaintiff’s claim for $13,187.09. By reducing the award to Checkmate by that amount as a credit or set off, the result would be $35,045.65.

VALIDITY OF THE PROOF OF SHORT LOADING

We find no manifest error in the trial court’s finding accepting weights for cubic measures of sand and gravel. The record fully supports the trial court’s findings that the standard weight of a cubic yard of sand may be considered to be 2,850 pounds and that the standard weight of a cubic yard of gravel may be considered to be 2,700 pounds. However, in our opinion standard weights of these two commodities are not relevant to a resolution of this case.

A meeting occurred in 1974 in Greens-burg, Louisiana, in St. Helena Parish, at the location of Hornsby’s business. Present at the meeting were Foster . Ross, Stanley E. Hornsby, and James McClendon. (Tr. 120-129, 139-141 and 153-156). At that time Foster Ross owned a 50% interest in Checkmate and was its manager. (Tr. 123). Stanley E. Hornsby represented the plaintiff and defendant-in-reconvention, Horns-by. James McClendon was an independent contractor used by Checkmate to haul sand and gravel to Checkmate’s ready mix plant in Rayne, Louisiana. Hornsby agreed to furnish sand at $1.50 per cubic yard, concrete gravel at $2.00 per cubic yard and road gravel at $2.50 per cubic yard. See stipulation at transcript page 2. The terms of the discussion were entirely on a volume or quantity basis. There was never any allusion to weight as a measure. (Tr. 127). In fact, the evidence establishes selling by volume rather than by weight was standard in the sand and gravel business at that time and continued to be so through at least the year 1976. (Tr. 157-158).

In the initial discussion, Hornsby explained his method of measuring the loads delivered. The method employed seems to have been an accepted method. Hornsby used a front end loader which had a 3V2 cubic yard bucket. Checkmate apparently ordered in 18 and 20 cubic yard loads. In the presence of Ross and McClendon, Stanley E. Hornsby loaded McClendon’s truck to demonstrate how it would be done. Ross himself explained in his testimony that Hornsby filled McClendon’s trailer which measured out at 20 cubic yards and testified that Hornsby stated “That’s the way I am going to load your truck.” (Tr. 120). It was understood that scales would not be involved. (Tr. 120).

The testimony of all the witnesses established that the bucket on the front end loader, referred to as a three yard bucket, had a capacity of 3V2 cubic yards. To fill an 18 yard order, 5V2 to 5% buckets were dumped into a truck. To fill a 20 yard order, 6 buckets were dumped into a truck. Hornsby’s witnesses all testified that the buyer was to be given the benefit of the doubt. For example, in filling an order for 20 cubic yards of sand or gravel, 6 buckets of material would actually result in giving the customer closer to 21 cubic yards than 20. (3.5 cubic yards per bucket X 6 buckets = 21 cubic yards.) Foster Ross explained that at the time the contract was made with Hornsby in 1974 the method of determining the volume of a truck or trailer bed was to use a tape and measure the length, width, and depth. Then the length was multiplied by the width and this result was multiplied by the length and then divided by 27. (Tr. 125).

Until the present suit was brought no complaint was ever made to Hornsby by Checkmate relative to shortages. Foster Ross stated he was fully satisfied with deliveries although he entertained some suspicion of possible shortages at the time he left Checkmate around September 1975. (Tr. 130). He gave instructions that a checking system be instituted on a random basis. Nothing of this sort was done, however, until a year later. In parts of October and November of 1976 a check was run. At that time, a 30-day check was run on selected trucks by which trucks loaded at Hornsby’s pit were weighed at a nearby competitor’s scales and then were weighed again at the Louisiana State weighing station at Breaux Bridge, Louisiana. These checks convinced Checkmate’s personnel that its company was being short loaded. Nevertheless, no complaint was made although Checkmate then apparently began purchasing its material from other suppliers.

It is apparent that Checkmate’s suspicions that it was being short loaded were heightened by its random test in October-November, 1976. It then undertook an elaborate assemblage of data and made the calculations described in the trial court’s reasons for judgment. In summary, its calculations indicated that the quantity of materials used in products manufactured by Checkmate was far less than the quantity of materials supposedly delivered to them over a long period of time. However, Checkmate’s calculations are based on assumed weights for cubic yards of material. Moreover, Checkmate’s conclusions are not derived from data as to actual amounts of material used. The method involved working backwards from the known amount of products produced and assuming quantities of materials from the proportions of materials which ought to go into the finished product. The results of these calculations from the research of Checkmate’s records may well justify that company in believing it has been short loaded so as to warrant it in discontinuing business relations with Hornsby. However, we are of the opinion that this method of determining the alleged shortages is legally insufficient.

CREDIBILITY EVALUATION

In its findings the trial court made no specific credibility evaluations with respect to the testimony of any witness. It is clear that the truckers working for Checkmate, either as independent contractors or employees driving Checkmate trucks, frequently loaded their own trucks. For the reasons given above we regard this matter as having no significance. Actually, there is no conflict in the testimony on this particular issue of fact. (See especially the testimony of James McClendon.) Checkmate adduced testimony from drivers and other personnel to establish that there had been no losses of sand or gravel from theft, overturning of trucks, wastage or other means. Checkmate’s evidence was to the effect that it operated on a concrete pad and all materials were dumped on the pad by the trucks and all the material was consumed in making ready mix concrete. However, it is significant that the Checkmate truckers were allowed to dump their loads and no inspection was routinely made to check the amount of material contained in the arriving trucks.

As a result of Checkmate’s procedures, its only means of establishing shortages was by the involved procedure described above. Inasmuch as no credibility evaluations are involved, the issue in this case, as earlier observed, is simply whether Checkmate’s after the fact evaluations from its own records and calculations based on assumed standard weights of sand and gravel suffice to establish its claim of having been short loaded over a two year time period.

DETERMINATIVE FACTORS

In reaching our decision we are impressed by certain facts brought out in evidence.

1. Simple visual inspection of a loaded truck will disclose whether it is significantly short loaded. Witnesses for both sides stated that with very little experience a driver or other person in the ready mix concrete business can look at a truck and tell if it is short several yards. (See for example Tr. 128, 185-186).

2. The Checkmate drivers knew the precise procedure for loading either an 18 yard load or a 20 yard load. They did so themselves. They could check by counting the number of buckets which the front end loader deposited in the truck. (See for example Tr. 200-202). Since loading was on a volume basis, this was the simplest way of checking a load and could be supplemented by visual inspection after loading. Any doubt could be resolved by using the tape measure and applying the formula. (Tr. 125).

3. Contrary to the procedure followed at Checkmate other purchasers of sand and gravel materials followed a checking procedure designed to catch significant shortages. Checkmate made no checks or inspections. (Tr. 116-117). At other plants, the procedure was for someone at the plant to visually check the trucks as they came in. (Tr. 157-158). In cases where a truck arrived short loaded, the seller was notified of the shortage without delay, or as one witness put it, the buyer “cut the load”. (Tr. 160). There were scales available at Checkmate’s plant, but incoming loads were never checked. (Tr. 114).

4. At no time prior to suit did Checkmate ever make a complaint of shortages to Hornsby.

While we consider the points listed above as very significant, we regard the most important fact to be that the parties contracted on a volume or quantity basis. The unit measurement was by volume and not weight. Scales were not even in use at the pits at the time. At the time of the contract the parties were very specific in agreeing to a volume basis. It was even agreed that to 53/4 loads from the bucket on Hornsby’s front end loader would equal 18 cubic yards and 6 bucket loads would equal 20 cubic yards.

We do not believe defendant-reconve-nor’s shift to the weight method, involving records only, may be validly resorted to in the contest in this case to. prove the shortages it claims. Irrespective of Checkmate’s denial of other sources of loss and Checkmate’s claim of accuracy as to the quantity of materials used in its production, we regard Checkmate’s method to be speculative and conjectural in its probative effect in a court of law.

For the foregoing reasons we reverse the trial court’s judgment in favor of defendant-reconvenor.

PLAINTIFF’S DEMANDS ON OPEN ACCOUNT

In our opinion the plaintiff proved its principal demand. In addition to the principal sum of $13,187.09, plaintiff demanded interest at the rate of 10% per annum if payment was not made within thirty days and 25% attorney’s fees if placed in the hands of attorneys for collection. Stanley E. Hornsby maintains that he informed Foster Ross in their initial contact when the verbal agreement was made that interest on overdue accounts would be charged and that attorney’s fees of 25% would be charged if suit was necessary. (Tr. 141). However, this is denied by Ross and is not corroborated by McClendon. Hence, from a testimonial standpoint, we regard the matter of interest and attorney’s fees as not having been proven.

All of the delivery tickets or invoices containing a place for the signature of the receiver of the materials (the drivers primarily) had the following printed on them: “10% per annum interest after 30 days and 25% attorney fees if placed in the hands of attorney for collection.” Although all the tickets or invoices bore the statement, such does not entitle plaintiff to conventional interest or attorney fees. Payment of such must be specifically agreed to. Succession of Drake, 359 So.2d 249 (La.App. 2nd Cir. 1978); American Supply Co. v. Petrolane Off. Const. Serv., 294 So.2d 240 (La.App. 1st Cir. 1974), writ refused 296 So.2d 839 (La.1974); Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir. 1971) and Holzer Sheet Metal Works v. Reynolds & Marshall, 43 So.2d 169 (La.App.Orl.1949). Plaintiff is entitled to legal interest from date of judicial demand until paid. LSA-C.C. arts. 1938 and 1940. Holzer Sheet Metal Works v. Reynolds & Marshall, supra.

DECREE

For the foregoing reasons the judgment of the trial court is reversed and set aside. It is now therefore ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff-appellant, S. E. Hornsby & Sons Sand & Gravel Company, Inc., and against defendant-appellee, Checkmate Ready Mix Concrete, Inc., in the full sum of $13,187.09, together with legal interest from date of judicial demand until paid and for all costs of this proceeding including the cost of this appeal and costs of the proceeding in the trial court.

REVERSED AND RENDERED.

      . We assume the $10 difference in the two figures is an inadvertent error but that the trial court did mean to credit Hornsby with $13,-187.09.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Benny HARRISON et al., Plaintiffs-Appellees, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellant.
    No. 7815.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Writ Refused Jan. 26,1981.

      Ledbetter, Percy & Stubbs, J. Michael Percy, Alexandria, for defendant-appellant.
    Eugene P. Cicardo, Alexandria, for plaintiffs-appellees.
    Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.

      - RULE IX-A. SCOPE OF REVIEW
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by Art. 5, § 10(B) of the Louisiana Constitution pf 1974 and Article 2164 of the Louisiana Code of Civil Procedure. Ordinarily, however, the Courts of Appeal will review only issues which were submitted to the trial court and which are contained in the specification of errors in the briefs or in an application for writs, unless the interest of justice clearly requires otherwise. Adopted, effective Dec. 1, 1977.

   FORET, Judge.

This is a suit for personal injuries allegedly sustained by Benny Harrison and his wife, Joyce'Harrison. A separate suit had been filed by Benny Harrison on behalf of his minor child, Joseph Harrison. The trial judge refused to consolidate the two suits for trial, the latter suit having been filed on December 13, 1979, the trial date being January 17, 1980.

Made defendants herein are South Central Bell Telephone Company and Morton Henderson, its employee. The defendants filed a third party demand against the City of Pineville, Louisiana. The trial court rendered judgment against South Central Bell Telephone Company and in favor of plaintiffs herein. On the third party demand, the trial court rendered judgment dismissing that demand against the City of Pine-ville.

No assignment of error is raised by South Central Bell as to the trial court’s finding of liability on the part of South Central Bell and its employee, Morton Henderson, and therefore the trial court judgment on that issue is affirmed. Likewise, no issue is raised on appeal by South Central Bell as to that portion of the -trial court judgment dismissing South Central Bell’s third party demand against the City of Pineville. Accordingly, we will affirm the trial court’s judgment in that regard.

In view of the result reached by this Court, we need only discuss two issues raised on appeal by South Central Bell:

(1) Whether the trial court erred in refusing to grant a continuance in view of alleged drastically changed medical conditions of the two plaintiffs which came to defendant’s knowledge just prior to the assigned trial date, and
(2) The refusal of the trial court to grant a motion for consolidation of the suit of Benny Harrison and Joyce Harrison with the separate suit filed by Benny Harrison on behalf of his minor child, Joseph Harrison.

ISSUE OF DENIAL OF MOTIONS FOR CONTINUANCE

In order for the reader to properly understand the situation which existed, we set forth, as follows, the chronology of events leading up to the denial of the motions (actually there were two) for continuance.

The auto accident in which plaintiffs were injured occurred on December 27, 1978., Suit was filed by Mr. and Mrs. Harrison in May of 1979. The trial court issued an order on August 8,1979, setting January 4, 1980 as the date on which the pre-trial conference would be held. This order also set January 17, 1980 as the date for trial. It should be noted further that the trial court ordered that all discovery be completed by January 4, 1980.

Appellant filed its first motion for a continuance on January 2, 1980. Appellant stated that it had learned of a substantial deterioration in the health of Mr. Harrison only recently. Appellant argued that it would be impossible to discover the results of a myelogram as these would only be available some time after January 4, 1980, the date set for the completion of discovery. The trial court denied the appellant’s motion for a continuance, saying it came too late.

The following is the medical history of Benny Harrison, which we feel is pertinent to our decision. After the accident, Mr. Harrison was referred by his attorney to Dr. John M. Patton, an Alexandria neurosurgeon. Dr. Patton first saw this plaintiff on March 29, 1979. The doctor’s long-term prognosis, after examining Benny Harrison, was that he would completely recover. He prescribed medication for the neck pain and muscle spasm which Benny Harrison was experiencing. He also had a cervical spine x-ray of the plaintiff taken at Rapides Parish General Hospital. Benny Harrison next saw Dr. Patton on April 19, 1979. He stated that he still had neck pain, although he was feeling better. The doctor instructed him to continue taking the analgesics which he had prescribed for the pain. Dr. Patton also reviewed the x-rays of Benny Harrison taken at Rapides General Hospital. The doctor concluded that Benny Harrison was probably suffering from cervical osteodegenerative disease, which, in all likelihood, existed before the auto accident.

Benny Harrison saw Dr. Patton again on May 26, 1979. He complained that his symptoms were getting-worse. Dr. Patton concluded that Benny Harrison’s health had deteriorated somewhat based on the medical findings of numbness and decrease in reflex in his arm. It was at this time that Dr. Patton informed Benny Harrison that surgery was a possibility if he showed no improvement. Benny Harrison’s next visit was made on July 31, 1979. He stated on this visit that he felt a definite improvement in his health. Dr. Patton’s examination revealed that Benny Harrison was completely normal except for slight pain in his neck. He still felt that Benny Harrison was suffering from cervical spondylosis, a degenerative disease.

Benny Harrison returned to see Dr. Patton on November 19, 1979. He was complaining of neck pain and numbness in his left arm. Dr. Patton’s examination revealed no cervical spasms, but did confirm Benny Harrison’s complaints of neck pain and numbness in the left arm. Dr. Patton ordered a nerve conduction study run on him. The results of this study were normal. Benny Harrison’s next visit came on December 24,1979. His health had deteriorated substantially at this time. Dr. Patton concluded that he was unresponsive to conservative therapy. He ordered Benny Harrison admitted to Rapides General Hospital for cervical myelography.

Appellant, South Central Bell, propounded written interrogatories to Benny Harrison on December 6, 1979. Benny Harrison waited until December 27, 1979, before serving his answers to the interrogatories on appellant. It was at this time that appellant learned of Benny Harrison’s December 24, 1979 visit to Dr. Patton. It also learned of the substantial deterioration in his health. Appellant was notified that a myelogram was scheduled to be run on Benny Harrison on January 4, 1980.

Appellant alleges that it immediately initiated discovery procedures in an attempt to gather evidence relating to this change in Benny Harrison’s health. However, its attempt to discover this evidence was denied by the trial court, apparently as coming after the deadline set by the trial judge for the completion of discovery. Also, as noted above, appellant’s motion for continuance based on this change in Benny Harrison’s health had been denied by the trial court.

We turn now to the appellant’s second motion for continuance filed on January 15, 1980. Appellant received a new medical report form Joyce Harrison’s counsel on January 5, 1980. The report indicated that Mrs. Harrison had returned to Dr. John M. Patton on December 31, 1979, two weeks before trial, complaining of additional symptoms. Her last office visit before this was made on June 26, 1979. The June medical report shows that Joyce Harrison was doing very well. She indicated that she had no neck pains or headaches until approximately two weeks before that visit. She told the doctor that she had accidentally fallen down some stairs and hurt her neck some two weeks before that visit. Dr. Patton’s examination showed that Joyce Harrison was normal in all respects. He prescribed an analgesic for her neck pain.

The next time Joyce Harrison saw Dr. Patton was on December 81, 1979. She indicated to the doctor that her neck pain and headaches had bothered her ever since the accident. This was contrary to the information she gave to Dr. Patton during the June 26, 1979 office visit. Dr. Patton noted that Joyce Harrison’s head and neck pains were of an undetermined origin. He instructed her to see him again in a month.

Appellant argued in the second motion for continuance that there would be no opportunity for it to discover the nature of the change in Mrs. Harrison’s health or the doctor’s opinion in connection therewith. It set these forth as the grounds upon which it was seeking the continuance. The trial court denied that motion without giving reasons. Appellant argues that the trial court abused its discretion in refusing to grant either of these motions for continuance.

It is a well established rule that the trial judge has wide discretion in acting upon a motion for continuance. His ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. LSA-C.C.P. Article 1601; Sauce v. Bussell, 298 So.2d 832 (La.1974); Lambert v. Heirs of Adams, 325 So.2d 381 (La.App. 3 Cir. 1976), writ denied, 329 So.2d 458 (La.1976).

We are unable to say it would have been an abuse of that discretion if the trial court had granted appellant’s motion for continuance. Conversely, we are also of the opinion that the trial judge did not clearly abuse his discretion in denying appellant’s motions for a continuance.

However, in view of its denial of the motions for continuance, the trial court should have left the case open for the introduction of additional evidence on the medical aspects of the case. Further, based on the relatively recent occurrence of such drastic changes in Benny and Joyce Harrison’s health, we believe that the trial court should have amended its pre-trial order to allow both parties to conduct additional discovery.

We feel that the late changes in the health of Mr. and Mrs. Harrison went to the very heart of their case. They had the burden of proving that the injuries they were suffering from were related to their accident with appellant’s employee. In addition, they had to prove the extent of the damages which they suffered. There was also a question dealing with the duty of an injured claimant to mitigate his damages. These are very serious issues which relevant evidence would have helped to answer. Yet, appellant was precluded from discovering and presenting to the trial court relevant evidence that may have been favorable to its side. The trial court apparently felt that appellant did have enough time to gather such evidence on its behalf. We disagree.

The record shows no motion made by the appellant to keep the case open for the introduction of additional evidence. However, the pre-trial order filed on January 10, 1980, does show that the trial court refused to hold the case open for the filing of late depositions. Further, the record also shows that the trial court’s order of August 8, 1979, requiring that all discovery and depositions be completed by January 4, 1980, was never amended. The decision to hold open or re-open a case for the production of additional evidence rests within the sound discretion of the trial judge, which decision will not be disturbed on appeal unless manifestly erroneous. LSA-C.C.P. Articles 1631 and 1632 ; see also Official Comment to Article 1632; Dupre v. Hartford Accident & Indemnity Company, 200 So.2d 753 (La.App. 3 Cir. 1967).

We hold that it was manifestly erroneous for the trial court to refuse to hold the record open for the introduction of additional evidence after it had denied the motions for continuance. It is our opinion, after thoroughly reviewing the record, that the very serious issues of cause-in-fact of the plaintiffs’ injuries, quantum, and mitigation of damages, were decided on the basis of a limited amount of evidence. The objective of our judicial system is to render justice between the litigants upon the merits of the controversy, rather than to defeat justice upon technicalities. Succession of Robinson, 172 So. 429 (La.1936); Aetna Casualty and Surety Company v. Johnson, 242 So.2d 119 (La.App. 4 Cir. 1970); Vela v. Slavich, 162 So.2d 746 (La.App. 4 Cir. 1964). We feel that the ends of justice will best be served by remanding this case to the trial court.

ISSUE OF DENIAL OF MOTION FOR CONSOLIDATION

The second issue presented by appellant is whether the trial court abused its discretion in refusing to consolidate the suit filed on behalf of Joseph Harrison with the original suit filed by his parents, Benny and Joyce Harrison. Inasmuch as the trial of Benny Harrison, et al. v. South Central Bell, for the most part, has already taken place, the issue of consolidation is now moot. Defendant had the opportunity to apply for a supervisory writ to this Court to remedy the alleged error of the trial court in failing to grant the consolidation. This, defendant did not do and consequently, that issue is now moot.

For the reasons assigned, the judgment of the trial court is affirmed in part and set aside in part. The case is remanded to the trial court for a re-determination of the issues of cause-in — fact of the plaintiffs’ injuries, quantum, and duty to mitigate damages. The trial court is instructed to re-determine these issues on the basis of the original evidence and any additional evidence adduced by the parties related to those issues. The case is to be re-opened for the introduction of such evidence for a period of time which the trial court deems reasonable.

Costs of this appeal are assessed against plaintiffs-appellees.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . The trial court’s judgment fails to make any mention of Morton Henderson, appellant’s employee.

      . “Art. 1601. Discretionary grounds
      A continuance may be granted in any case if there is good ground therefor.”

      . “Art. 1631. Power of court over proceedings; exclusion of witnesses
      The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
      On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. As amended Acts 1966, No. 36, § 1.
      Art. 1632. Order of trial
      The normal order of trial shall be as follows:
      (1) The opening statements by the plaintiff and the defendant, in that order;
      (2) The presentation of the evidence of the plaintiff and of the defendant, in that order;
      (3) The presentation of the evidence of the plaintiff in rebuttal; and
      (4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order.
      This order may be varied by the court when circumstances so justify.
      When an action involves parties in addition to the plaintiff and the defendant, the court shall determine the order of trial as to them and the plaintiff and the defendant.
      Source; C.P. Arts. 476, 477, 485; cf. R.S. 15:333.”


author: SWIFT, Judge. GUIDRY, Judge,

text:
    DUNHILL OF LAFAYETTE, INC., Plaintiff-Appellee, v. MARION CORPORATION, Defendant-Appellant.
    No. 7823.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      Plauche, Hartley, Lapeyre & Ottinger, Patrick S. Ottinger, Lafayette, for defendant-appellant.
    William J. F. Gearheard, Lafayette, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

The defendant, Marion Corporation (Marion), has appealed from a judgment which overruled its peremptory exception of no cause or right of action and granted a motion for summary judgment in favor of the plaintiff, Dunhill of Lafayette, Inc. (Dun-hill), in this suit to recover a fee allegedly due under an employment agency contract.

From the pleadings, affidavits and deposition in the record, it is undisputed that Dunhill’s Mr. Haydell contacted Mr. Chal-mers, Marion’s Lafayette manager, in the latter part of July, 1978, and asked if the company needed any administrative or engineering help. The latter replied that they “could use another drilling foreman”. Later, Haydell called Chalmers and said he was sending a Mr. Lyons over for the purpose of applying for the position. Lyons was not hired on the first interview and returned to inquire about the job several times. After either the first or second occasion, Mr. Chalmers telephoned Dunhill to inquire as to its fee schedule. The charges were quoted over the phone and shortly thereafter a printed fee schedule for employers was sent to him wherein Dunhill stated that “[ujnless advised to the contrary, acceptance of our applicant referrals will constitute acceptance of this agreement.” This schedule reflects that the fee for hiring an applicant earning $29,000.00 the first year is 30% of the annual salary or $8,700.00.

Mr. Lyons was hired shortly thereafter for the position of drilling foreman at an annual salary of $29,000.00. However, Marion refused to pay the fee and this suit was filed by Dunhill.

The defendant’s specification of error directed at the overruling of its peremptory exception is based on allegations in Dunhill’s petition to the effect that Marion agreed to pay the fee of the applicant if hired, the failure to allege that such agreement was in writing and the requirement of LSA-C.C. Art. 2278(3) that a promise to pay the debt of a third person cannot be established by parol. It is elementary that in considering an exception of no cause of action the allegations of the petition must be liberally construed in favor of the plaintiff. A fair reading of the petition as a whole readily discloses that here the plaintiff is suing to collect a debt which the defendant allegedly incurred as the sole and only obligor under a contract between the agency and the employer. There is neither an allegation nor a contention that Mr. Lyons was ever indebted to Dunhill for any fee as a result of his employment by Marion. Thus, the obligation sued on was not a promise to pay the debt of a third party and the exception was properly overruled.

In sustaining the motion for summary judgment, the trial judge rendered judgment for only $4,350.00 instead of $8,700.00 claimed in the principal demand. No written or oral reasons were furnished but apparently this was done because the schedule of fees to be charged applicants filed by Dunhill with the Office of the State of Louisiana under LSA-R.S. 23:105 B(2) to obtain its license as an employment agency listed 15% of the first year’s compensation for a salary over $15,000.00. Subsection 110 of this act prohibits collection of “any fee not contained in the schedule, nor any fee in excess of the fee provided therein.”

Marion contends that because Dunhill has charged a 30% fee based on the schedule of fees to be paid by employers furnished it by Dunhill rather than the maximum of 15% provided in the schedule of fees to be paid by applicants for employment as filed with the Office of Labor the entire charge is null and void under LSA-C.C. Art. 12 as a violation of a prohibitory law.

On the other hand, Dunhill has furnished an affidavit from an assistant secretary of the Office of Labor to the effect that this office has interpreted these sections of the statute as applying only to fees to be paid by the applicant for employment and not to fees charged by a private employment agency to an employer where no part thereof is assessed directly or indirectly against the applicant. On the basis of this interpretation the Office of Labor has promulgated a regulation providing that the latter fee may be the subject of negotiations or an agreement between the employer and the agency.

Under the doctrine of contemporaneous construction, in ease of ambiguity in a statute courts favor a construction given by the department charged with the execution of the law. However, where no ambiguity exists or such construction is clearly erroneous the rule is inapplicable: State v. U-Drive It Car Co., 79 So.2d 590 (La.App. Orl.1955); City of Crowley v. Prejean, 173 So.2d 832 (La.App. 3 Cir. 1965), writ refused 175 So.2d 110; Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976).

From our review of LSA-R.S. 23:101 et seq., we find that the provisions of the act apply both to employment agencies who solicit fees to be paid by the applicant and those whose fees are to be paid by the employer for the placement of an applicant. See Subsection 102 A(2). However, Subsection 105 clearly provides that only “a schedule of the fees proposed to be charged to applicants” shall be filed with the Office of Labor. As defined in Subsection 101(3), “applicant” means the person seeking employment, not the prospective employer. Thus, Dunhill complied with the statute by filing only its schedule of fees to be charged applicants in seeking its private employment agency license.

Be that as it may, Subsection 110 of the act prohibits the collection of any fee “not contained in that schedule, nor any fee in excess of the fee provided therein.” This necessarily refers to the schedule of fees filed by the agency with the Office of Labor. Therefore, in our opinion Dunhill cannot collect from this employer, Marion, any more than it could have charged the employee under the schedule on file. This is $4,350.00, the amount of the summary judgment rendered by the court below.

Marion further contends that Dun-hill’s attempt to charge it a fee in excess of that provided in the schedule filed with the Office of Labor caused their entire agreement to be null and void under LSA-C.C. Art. 12 as a contravention of Subsection 110, a prohibitory law. Badon’s Employment, Inc. v. Smith, 359 So.2d 1284 (La.1978) is cited in support thereof.

LSA-R.S. 23:118 provides in part:

“An employment agency shall not engage in any of the following activities or conduct:
******
“(6) Direct an applicant to an employer for the purpose of obtaining employment without having first obtained a bona fide order therefor; however, a qualified applicant may be directed to an employer who has previously requested that he regularly be accorded interviews with applicants of certain qualifications. Likewise an employment agency may attempt to sell the services of an applicant to an employer from whom no order has been received as long as this fact is told to the applicant before he is directed to the employer.”

Our supreme court held in Badon that the agency’s failure to obtain “a bona fide order” from the employer prior to sending the applicant for the interview violated this subsection of the act and nullified the contract between the agency and the applicant. Therefore, no fee could be recovered from the latter.

We do not construe that decision as declaring every restriction and limitation on an employment agency in the whole act as being prohibitory in nature. It appears to us that there is a considerable difference between prohibited agency conduct that may impose an undue hardship on an employee and the mere attempt to collect from an employer a fee set forth in a schedule furnished him by the agency prior to the hiring even though it is in excess of that permitted by law. Like the violations involved in Post Office Employees Credit Union v. Frosina, 77 So.2d 213 (La.App.Orl. 1955), and First Nat. Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3 Cir. 1977), this one did not involve bad faith, moral turpitude nor was it contra bonos mores. And we do not believe it should prevent the agency from collecting the fee prescribed in the applicable schedule on file with the Office of Labor, at least not in this case where the agency acted in accordance with that department’s interpretation of the act-i. e., that the fee to be paid by the employer could be negotiated and agreed to by the latter and the agency without limitation or regulation. We therefore conclude that the plaintiff is entitled to recover the $4,350.00 fee awarded in the judgment.

The defendant also contends the trial court erred in granting the motion for summary judgment, because there was a genuine issue of fact, namely, whether or not there was a bona fide order made by Marion to Dunhill before sending Lyons for the interview.

“Bona fide order” is not specifically defined in the act. However, it is obvious in this case that an agreement was entered into between Messrs. Chalmers and Haydell, representing their respective companies, whereby Dunhill was to furnish an applicant for the particular position for which Lyons was employed. The mere fact that Mr. Chalmers later signed an affidavit to the effect that no bona fide order was made, does not create a genuine issue of fact as his deposition clearly establishes that such an order was placed by him with Dunhill for that position before the first interview.

For the foregoing reasons, the judgment of the trial court is affirmed at costs of defendant-appellant.

AFFIRMED.

GUIDRY, Judge,

dissenting.

In my opinion there are unresolved issues of material fact which preclude the rendition of a summary judgment.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. CITY OF PINEVILLE, Defendant-Appellee.
    No. 7828.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    John C. Young, Baton Rouge, for plaintiff-appellant.
    Gravel, Robertson & Brady, Dan E. Mel-ichar, Ford & Nugent, William M. Ford, Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This is a suit for the repayment of money advanced brought by the Department of Transportation and Development, hereinafter referred to as the Department. The City of Pineville was named defendant in this suit.

On May 12,1969, the Honorable Floyd W. Smith, Jr., the Mayor of Pineville, signed a contract with the Louisiana Department of Highways whereby the Department agreed to advance to the City sufficient funds to relocate existing water lines in connection with the widening and improvement of Louisiana Highway 28 East. The Mayor was authorized to enter into this agreement by a resolution of the Council of the City of Pineville dated April 1, 1969. After the agreement was signed, the State advanced a total of $88,864.86 to the City between June, 1969, and August, 1970. The City was to repay the Department this amount in three equal and successive installments due on April 1, 1970, and on the same date in 1971 and 1972, according to the terms of the agreement.

The City failed to pay the first installment when it became due. Consequently, the Department filed suit on February 1, 1971, in an attempt to collect that payment which amounted to $29,621.00. A motion to dismiss this suit without prejudice filed by the plaintiff was granted by the trial court on June 4, 1973.

Subsequently, the Department filed this suit seeking the repayment of the entire amount owed to it by the City on August 6, 1976. The City filed peremptory exceptions of no right and/or no cause of action and prescription on November 4, 1976. The trial court held a hearing on these exceptions and rendered judgment on January 10, 1980, sustaining defendant’s exception of prescription. It is from this ruling of the trial court that the plaintiff brings this appeal.

The sole issue presented on appeal is whether the trial court erred as a matter of law in holding that the prescriptive period applicable was that of three years under LSA-C.C. Article 3538 instead of ten years under LSA-C.C. Article 3544.

Appellant alleges that there was a written acknowledgment of the debt owed to it by the appellee. There are three documents which appellant argues constituted a written acknowledgment. Two of these documents are letters dated March 23,1972, and April 6, 1972. They are addressed to the Assistant General Counsel of the Department, Mr. Robert J. Jones, and were sent by the Honorable Fred H. Baden, May- or of the City of Pineville.

Appellee contends that this Court cannot consider these letters on appeal inasmuch as they were never properly introduced into evidence in these proceedings even though they appeared in the record which the clerk of the district court lodged with the clerk of this Court.

The letters were not part of the record when the trial court held a hearing on the defendant’s exception of prescription on July 9, 1979. The trial court asked the respective counsel to submit briefs of authority after the exception was argued. Appellant’s counsel mailed its brief of authorities to the trial court. The letters were attached to this brief as exhibits.

Appellee has raised a serious question as to whether this Court can properly consider these letters in making its decision. However, we need not consider these letters because of other evidence in the record which forms the basis for our decision herein. Therefore, we pretermit a discussion of this contention of the appellee.

We turn now to a consideration of the third document upon which appellant rests its argument that there has been a written acknowledgment of appellee’s debt. It is the agreement of the parties which reads as follows:

“AGREEMENT

This agreement between the Department of Highways of the State of Louisiana and the City of Pineville, executed upon the dates shown hereafter, represents that

WHEREAS, the Department of Highways of the State of Louisiana has under consideration a proposal to construct an improvement to State Route La 28, the Pine-ville-Libuse Highway, State Project 74-01-13, which is badly needed by the City of Pineville and its residents, and

WHEREAS, it is necessary that certain water lines, belonging to the City of Pine-ville and located within the right of way of State Route La 28, be relocated to allow construction of the improvement to take place, and

WHEREAS, the City of Pineville has committed itself to remove and relocate these water lines whenever required by the Department of Highways at the expense of the City, and the City is obligated to meet its commitment, and

WHEREAS, the City of Pineville is not now financially able to bear its portion of the cost, estimated at approximately $82,-000.00, which the City must budget for future years, and

WHEREAS, the Department of Highways of the State of Louisiana has indicated that it is willing to advance the cost of the relocation of the water lines provided that it can rely upon full recompense within three years, and

WHEREAS, the Council of the City of Pineville has adopted a resolution, dated April 1, 1969, authorizing the Mayor of the City of Pineville to enter into this agreement,

It is agreed that the Department of Highways of the State of Louisiana will advance to the City of Pineville the sums necessary to accomplish the relocation of the City’s water lines to accommodate the construction of the Pineville-Libuse Highway, State Project 74-01-13, which amount is estimated at approximately $82,000.00, and

The City of Pineville agrees that commencing on April 1, 1970, it will repay to the Department of Highways one-third of the amount advanced for the relocation of the water lines, and that it will repay, to the Department of Highways, one-third of the amount, on the First day of April, 1971, and the final one-third on the First day of April, 1972, with interest at 6 per cent from maturity date, all such payments to be made to the Department of Highways at its office in Baton Rouge, Louisiana, and the Council of the City of Pineville agrees that it will include such sums in its annual budget for the next three fiscal years.

This said agreement executed in the City of Baton Rouge, Louisiana, by the Director of Highways of the State of Louisiana on this 9th day of April, 1969, and by the Mayor of the City of Pineville in the City of Pineville on this 12th day of May, 1969.”

[Signatures omitted by this Court.]

Appellee argues that this contract is the “original agreement” itself, and therefore, it cannot be an “acknowledgment” of the debt. It argues that if it can be considered an acknowledgment, then every time any transaction takes place which is listed under Article 3538, in which there is a writing, prescription is ten years and not three despite the plain language of that article. We disagree.

The agreement itself shows that the City of Pineville had a pre-existing obligation to relocate its water lines whenever required to do so by the Department. This obligation was recognized by the Council of the City of Pineville in a resolution passed on April 1, 1969, one and one-half months before the above agreement was signed. This resolution reads as follows:

“RESOLUTION

WHEREAS, the Department of Highways of the State of Louisiana has under consideration a proposal to construct an improvement to State Route La 28, the Pine-ville-Libuse Highway, State Project 74-01-13, which is badly needed by the City of Pineville and its residents, and

WHEREAS, it is necessary that certain water lines, belonging to the City of Pine-ville and located within the right of way of State Route La 28, be relocated to allow construction of the improvement to take place, and

WHEREAS, the City of Pineville has committed itself to remove and relocate these waterlines whenever required by the Department of Highways at the expense of the City, and the City is obligated to meet its commitment, and

WHEREAS, the City of Pineville is not now financially able to bear its portion of the cost, estimated at approximately $82,-000.00, which the City must budget for future years, and

WHEREAS, the Department of Highways of the State of Louisiana has indicated that it is willing to advance the cost of the relocation of the waterlines provided that it can rely upon full recompense within three years,

THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF PINE-VILLE that it approves the proposed project of highway improvement on State Route La 28, that it accepts its obligation to pay the cost of waterline relocation, that it recognizes the need for the proposed improvement and that in order to induce the Department of Highways of the State of Louisiana to undertake the project and to proceed as quickly as possible the Council agrees for the City of Pineville that the City will pay to the Department of Highways the cost of relocating the water lines belonging to the City, located in the right of way of State Route La 28, which are to be removed to permit the construction of the highway improvement, upon being billed therefor by the Department in three annual equal installments, the first being due not less than one year from the date of this resolution, without interest if timely paid,

BE IT FURTHER RESOLVED that the Council of the City of Pineville agrees and commits itself to including in its annual budget for the next three fiscal years a sum not less than one-third of the estimated cost of relocating the water lines and dedicate this sum to the payment of the City’s obligation hereunder, and

BE IT FURTHER RESOLVED that the Mayor of Pineville, Honorable Floyd W. Smith, Jr., be and he is hereby authorized and directed to execute an agreement with the Department of Highways to carry out this resolution, upon the terms hereinabove set forth, which agreement shall be binding upon the City of Pineville and this resolution and the agreement shall not be subject to revocation by the Council nor its successors.

DATE: April 1. 1969”

[Signatures omitted by this Court.]

This document shows that the City had accepted the Department’s offer to advance the necessary funds for the relocation of the water lines. It is clearly stated that the purpose of the agreement to be signed in the future was to carry out this resolution.

Our brothers of the First Circuit rendered a well reasoned opinion on a problem similar to that with which we are confronted in Jones v. Butler, 346 So.2d 790 (La.App. 1 Cir. 1977).

The facts in that case were not in dispute. The plaintiffs’ action was for the repayment of money loaned to the defendants. Plaintiffs were the heirs and legatees of the lender. The decedent had issued a cheek to the defendants in the amount of $2,000.00. The word “loan” appeared on the face of the check. On the same date that the check was issued, defendants signed the following:

“1/10/67
“To whom it may concern:
This is to acknowledge receipt of a $2,000.00 loan from Mr. and Mrs. H. E. Moise, this date, to be made as down payment on house to be purchased by the undersigned. Terms of loan will be established at a later date to the satisfaction of the lender.
Dewey W. Butler
Marjorie M. Butler”

Defendants met plaintiffs’ demand with the peremptory exception of prescription. Defendants’ plea was based on LSA-C.C. Article 3538, which sets up a prescriptive period of three years for certain actions, among which is that for the payment of money lent.

Plaintiffs contended that the signed instrument reproduced above constituted a written acknowledgment of the debt which made the ten-year prescriptive period of LSA-C.C. Article 3544 applicable.

The trial court sustained defendants’ exception of prescription and dismissed plaintiffs’ suit. The trial judge felt that the instrument was not an acknowledgment of a pre-existing debt but part of what he termed a “single loan transaction”. He found that the instrument had been executed simultaneously and constituted a single transaction. The trial court was reversed by our brothers of the First Circuit. We take the liberty of quoting from their opinion at page 792:

“With respect to the shorter prescriptive period, its justification and role, Pla-ñid explains:
“When the creditor remains too long without acting, the law takes away his action. The reason for the liberative prescription is to prevent suits difficult of adjudication. In the interest of order and social peace, it is desirable to liquidate the past to avoid contests on contracts or acts as to which the titles are lost or the memory is gone. The reason for prescription in the matter of credits is therefore about the same as in the matter of property; but its role is different: while in the matter of real rights, prescription is sometimes libera-tive and sometimes acquisitive; in the matter of credits it never functions except as a means of extinction.” (footnote omitted) Plañid, Civil Law Treatise, Vol. 2, part 1, — § 630.
Writing on the concept of prescription, Aubry & Rau state:
“Nevertheless it is said that prescription is based on the general interest of parties in not being exposed to an action which, if well founded, should have been brought a long time before. It may become difficult or even impossible to establish by proof that the action is well founded or to show that it is not well founded. * * , Civil Law Translations, Aubry & Rau-Prescription, § 771.
Our appreciation of the above principals [sic] leads us to conclude that those species of actions wherein a prescriptive period is relatively short contemplate that the obligation was incurred with a minimum of formality and accordingly, a correspondingly sparcity of proof when a dispute arises as to satisfaction. Stated another way, the transactions therein contemplated are oral and cover the general broad spectrum of everyday encounters between those furnishing goods and services on the one hand (creditor) and the purchaser (debtor) on the other hand. Davis v. Houren, 10 Rob. 402 (1845). This we find particularly true with respect to C.C. Art. 3538 and the transactions therein enumerated. If it were otherwise, the last paragraph of the article relating to “an account acknowledged in writing” is superfluous.
We think the true intent of the redactors of the Code and the real sense of the article (3538) is that when an oral obligation is incurred encompassing a type of action described in the article and that obligation is acknowledged in writing, the character of the action is changed and it becomes a personal action under the general article (3544). The prescriptive period is transposed from that of three years (3538) to that of ten years (3544).
“The traditional system of French law on this point may be summarized thus: the credit is prescribable by two different delays, the one very short, if nothing happens during its duration which nullifies the legal presumption of payment; the other very long, if there has been an acknowledgment or a suit filed before the expiration of the first. One can therefore say that in such a case the interrupting act interrupts, not only the course of the prescription, but that it also produces a veritable inversion in the nature of the prescription, since the prescription applicable after the interruptive act is not the same which was applicable before. Planiol Civil Law Treatise, Vol. 2, part l-§ 675.” (Emphasis ours)
We find our jurisprudence to be in accord with this view.”

We agree with the above reasoning. We find that the agreement executed by the parties in this case constitutes a written acknowledgment of a debt.

The underlying reasons advanced by the Civil Law Commentators (quoted above) for a short prescriptive period in certain instances are:

1. As stated by Planiol, supra,
“. .. it is desirable to liquidate the past to avoid contests on contracts or acts as to which the titles are lost or the memory is gone”;
2. As stated by Aubry & Rau, supra, “It may become difficult or even impossible to establish by proof that the action is well founded or to show that it is not well founded” [if the said action is not brought before a long period of time has elapsed].

In the case sub judice the agreement embodying the contract between the parties is in writing and is evidenced by the resolution of the City Council of Pineville dated April 1, 1969, and the subsequent agreement between the Director of Highways and the City of Pineville dated the 12th day of May, 1969. Thus, it is obvious that the issue of proving the obligation is a very simple one, and there is no paucity of evidence. Memories of the parties need not be relied upon for the simple reason that written and dated documentary proof of the agreement and of the amount of the indebtedness (Department checks issued to the City of Pineville) is readily available whether the matter be tried in three years or in ten years. Therefore, it is apparent that the underlying principles as mentioned by the Civil Law Commentators would not justify the application of the three-year prescriptive period in the ease before us.

Accordingly, for the above and foregoing reasons, the judgment of the trial court sustaining the defendant’s peremptory exception of prescription is reversed and set aside, and this matter is remanded for trial on the merits.

All costs of this appeal are assessed against defendant. All other costs are to await final disposition.

REVERSED AND REMANDED.

      . Art. 3538. Actions prescribed by three years; discontinuance of prescription
      Art. 3538. The following actions are prescribed by three years:
      That for arrearages of rent charge, annuities and alimony, or of the hire of movables and immovables.
      That for the payment of money lent.
      That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter.
      That of physicians, surgeons and apothecaries for visits, operations and medicines.
      That of parish recorders, sheriffs, clerks and attorneys for their fees and emoluments.
      That on the accounts of merchants, whether selling for wholesale or retail.
      That on the accounts of retailers of provisions, and that of retailers of liquors, who do not sell ardent spirits in less quantities than a quart.
      That on all other accounts.
      This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced. (As amended by Acts 1888, No. 78)

      . Art. 3544. Personal actions, general rule
      Art. 3544. In general, all personal actions, except those before enumerated, are prescribed by ten years.


author: DOUCET, Judge.

text:
    Alvin DEBLIEUX and his wife, Plaintiff-Appellee, v. ARKLA INDUSTRIES, INC. et al., Defendant-Appellant.
    No. 7838.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Writ Refused Jan. 26,1981.

      Walter O. Hunter, Jr. of Mayer, Smith & Roberts, Shreveport, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiff-appellee.
    Harrington & Harrington, Eric R. Harrington, Natchitoches, for defendant-appel-lee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

Mr. and Mrs. Alvin DeBlieux brought this redhibitory action, seeking the rescission of a sale of a central air conditioning system, plus damages and attorney’s fees. They named as defendants Arkla Industries, Inc. (Arkla), the manufacturer, and Natchitoch-es Electric, Inc. (Natchitoches Electric), the contractor that installed the system. Natchitoches Electric filed a third party demand against Arkla, seeking indemnification for any judgment rendered against it, plus attorney’s fees.

Following a trial, judgment was rendered in favor of the plaintiffs and against Arkla in the sum of $12,197.46 (representing the return of the purchase price, repair costs, and damages for inconvenience and personal suffering from heat, etc.), plus $3,000.00 as an attorney’s fee. Plaintiffs’ demands against Natchitoches Electric were dismissed. Judgment was also rendered in favor of Natchitoches Electric and against Arkla in the sum of $3,000.00 as an attorney’s fee.

Arkla appealed, and the plaintiffs and Natchitoches Electric answered, asking for additional attorney’s fees for services rendered on appeal.

The issues raised by Arkla on appeal concern whether or not the trial judge erred in (1) finding that the air conditioning system contained redhibitory defects for which Arkla is liable, (2) allowing damages for personal suffering, inconvenience, etc., (3) including the costs of normal maintenance in the award of repair costs, (4) not allowing Arkla a credit for plaintiffs’ use of the system, (5) awarding Natchitoches Electric attorney’s fees, and (6) awarding legal interest from the date of judicial demand on the awards of attorney’s fees.

ARKLA’S LIABILITY FOR REDHIBITORY DEFECTS

The findings of fact upon which the trial judge based his conclusions that the system was defective, and that Arkla was liable were summarized in his written reasons for judgment as follows:

“In April 1973, plaintiffs contracted with Natchitoches Electric for the purchase and installation of central heating and air conditioning for their home which was being renovated in the city of Natch-itoches.
“The home is a three story, wood frame building with numerous bedrooms and bathrooms to house plaintiffs and their eight children. Natchitoches Electric purchased the chilling units with three (3) coils and fans from Arkla. ' The units were: two (2) five ton; and one (1) three ton.
“The units were installed in August, 1973, by the contractor according to a hand made schematic drawing prepared by the manufacturer. The contractor had never installed units in the manner suggested and George Morgan, one of the owners of the contracting company, asked for and received the schematic drawing from Arkla which was used in installing the air conditioning equipment.
“Also Mr. Terry Hughes, a service and installation employee of Arkla, was present at installation and startup of the air conditioning units. He inspected and approved, or, at least agreed to the manner in which the units were installed.
“Sixteen (16) days after the installation Mr. Hughes was called to the plaintiffs’ home on a trouble call and found a fan belt broken and one unit overheated. Essentially from that time on, the plaintiffs’ had extreme difficulty, trouble and problems with the units and finally filed suit after suffering years of futility.
“After studying the evidence and listening to the witnesses, the Court finds that Arkla supervised and directed the installation of the units by the contractor and that the following is a partial, but fatal, list of defects in the Arkla units:
1. The balance line between the units were (sic) too small.
2. The balance line was not located at the correct position.
3. Improper staging.
4. Aquastat requirements set forth in the service manual of Arkla was (sic) not complied with.
“The Court finds no abuse of the equipment by the plaintiffs. Although, defendants forcefully argue that clogged up filters and broken fan belts indicate fault and negligence on the part of the plaintiffs, the Court finds that these items are not pertinent because of the major faults and improprieties in the original installation by Arkla.”

Arkla vigorously disputes some of those findings of fact, particularly those with respect to its involvement in the startup operation. However, our review of the record has not revealed manifest error. Accordingly, those findings are affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In view of those facts, we believe that the trial court correctly held Arkla liable for the redhibitory defects in the system.

DAMAGES FOR INCONVENIENCE, ETC.

LSA-C.C. Art. 1934 governs the issue of what damages are recoverable in this case. Our Supreme Court specifically dealt with the issue of the recovery of damages for inconvenience, mental anguish, etc. in a contract case in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). After reviewing the origin of LSA-C.C. Art. 1934(3) and several contract cases in which these damages had been allowed, the Court announced the following principle:

“Thus, we would interpret Article 1934(3) as follows: Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuni-ary damages as a consequence of nonful-fillment of that object are not recoverable.”

In this case, we believe that the principal object of the contract was physical gratification. Undoubtedly, intellectual enjoyment is a by-product of having a comfortable home in which to raise a family and entertain. However, we do not believe that intellectual enjoyment was a principal object of the contract. We therefore find, in light of the principle set out above, that the learned trial judge erred in allowing nonpecuniary damages, and we will amend the judgment to delete them.

COSTS OF MAINTENANCE

During the time that the plaintiffs maintained the air conditioning system in their home, numerous service calls were made by Natchitoches Electric and another repairman, who was authorized to service Arkla units. The purpose of these calls was to try to make the system cool properly. Various things were tried, including replacing failed parts, purging the system, cleaning the units, replacing filters, etc. Arkla contends that it should only be liable for the costs of curing the defects and not for what it classifies as normal maintenance. We disagree.

Some of the work that was done, such as purging the system and replacing filters, might also have been required if the system had been free of defects. However, according to Arkla’s own witnesses, the failure to perform these acts would have resulted in damage to the system. In view of that fact, we believe that the cost of these services must be considered expenses incurred for the preservation of the thing, within the meaning of LSA-C.C. 2531. Under that article, such expenses are recoverable. We therefore, find no error in the trial court’s award.

CREDIT FOR USE

The principles applicable to the issue of whether or not Arkla is entitled to a credit for the plaintiffs’ use of the air conditioning system were summarized by our Supreme Court in Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978), wherein the Court stated:

“A credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller. In the absence of specific provisions punitive damages are not obtainable in Louisiana; the object of the provisions governing redhibitory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Compensation for the buyer’s use, however, ought not to be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.”

It is clear from the above that the granting of a credit for the buyer’s use is discretionary with the trial judge. John Deere Industrial Equipment Company v. Willett Timber Company, Inc., 380 So.2d 182 (La.App.3rd Cir. 1980); writ denied, 381 So.2d 1234 (La.1980). Arkla argues that the trial judge abused that discretion by not allowing a credit in this case. We disagree.

The testimony of the plaintiffs and their witnesses shows clearly that they were greatly inconvenienced by the poor performance of the air conditioning system. Although it provided cooling some of the time, the breakdowns were very frequent. On numerous occasions, their children had to be placed with various friends and relatives, because the heat in their home made it impossible for them to sleep comfortably. In addition to this disruption of their family life, the unreliable nature of the system made entertaining difficult. Under these circumstances, we cannot say that the trial judge erred in concluding that the value of the plaintiffs’ use of the system was overridden by the inconvenience that they suffered.

NATCHITOCHES ELECTRIC’S ATTORNEY’S FEE

Arkla acknowledges the fact that if it is held liable for the defects in the system and Natchitoches Electric is not, then the award of attorney’s fees to Natchitoches Electric was correct. Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App.3rd Cir. 1979); see also, John Deere Industrial Equipment Company v. Willett Timber Company, Inc., supra.

The trial judge found that Natchi-toches Electric bore no responsibility for the defects in the system, and we find no error in that conclusion. Since we have found that Arkla is liable for the defects, we conclude that the award of attorney’s fees to Natchitoches Electric was proper.

INTEREST ON ATTORNEY’S FEES

The judgment rendered by the trial court states that interest shall run on the awards of attorney’s fees from the date of judicial demand until paid. Arkla correctly argues that interest on an award of attorney’s fees is allowable only from the date of the judgment, since they are not ascertainable prior to that time. Alexander v. Burroughs Corporation, supra; Brummerloh v. Firemen’s Insurance Company of Newark, New Jersey, 377 So.2d 1301 (La.App.3rd Cir. 1979). We will amend the judgment to comply with that rule.

The only remaining matters to be disposed of are the requests for additional attorney’s fees. The plaintiffs and Natchi-toches Electric were both successful at the trial level, and each has incurred additional expenses, which otherwise would not have 'been incurred, in order to protect their rights on appeal. They are therefore entitled to increases in the amounts of their awards. Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App.3rd Cir. 1979). In view of the nature of this case and the time and skill required, we believe that increases of $500.00 are sufficient.

For the above and foregoing reasons, the judgment of the district court is amended and its decree is recast as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiffs, ALVIN De-BLIEUX and his wife, MARTHA De-BLIEUX, and against ARKLA INDUSTRIES, INC., for the sum of Seven Thousand, One Hundred Ninety-Seven and 46/100 ($7,197.46) Dollars, together with legal interest thereon from date of judicial demand until paid.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of ALVIN De-BLIEUX and his wife, MARTHA De-BLIEUX, and against ARKLA INDUSTRIES, INC., for attorneys fees, in addition to the above, for the sum of Three Thousand, Five Hundred and no/100 ($3,500.00) Dollars, together with legal interest thereon from January 9, 1980 until paid.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all demands of plaintiffs, ALVIN DeBLIEUX and his wife, MARTHA DeBLIEUX, against NATCHITOCHES ELECTRIC INC., be and they are hereby rejected.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of NATCHI-TOCHES ELECTRIC INC., and against ARKLA INDUSTRIES, INC., for attorneys fees in the sum of Three Thousand, Five Hundred and No/100 ($3,500.00) Dollars, together with legal interest thereon from January 9, 1980 until paid.”

AMENDED AND AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    C. Edward KARST, Plaintiff-Appellant, v. Joe E. FRYAR, Defendant-Appellee.
    No. 7585.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      C. Edward Karst, Alexandria, and George M. Strickler, New Orleans, for plaintiff-appellant.
    J. Minos Simon, Lafayette, for defendant-appellee.
    Before CULPEPPER, C. J., and DO-MENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiff C. Edward Karst brings this appeal from a judgment dismissing his action which attacked a judgment which had been previously rendered against him.

Karst originally filed suit against Joe E. Fryar seeking a money judgment on the basis of a settlement agreement and other business activities allegedly entered into between himself and Fryar. Fryar, alleging that the settlement agreement was obtained through fraud, reconvened, and demanded the return of all monies paid to plaintiff as a result of the settlement agreement. Fryar also filed a separate action demanding essentially the same relief sought in his reconventional demand. The actions were consolidated for trial.

Following trial of the actions, the district judge, Guy E. Humphries, Jr., finding that Karst had committed fraud and extortion in obtaining the settlement agreement, rendered judgment in favor of plaintiff-in-re-convention, Fryar, in the sum of $139,-206.00.

Karst perfected an appeal to this Court contending that the trial judge erred in finding that he had committed fraud and extortion in obtaining the settlement agreement. This Court, finding that the record amply supported the trial judge’s findings, affirmed the judgment rendered below. Karst v. Fryar, 361 So.2d 1344 (La.App.3rd Cir.1978).

Subsequently, in August 1978, Karst filed the instant action to annul the aforementioned judgment rendered against him. The petition alleged that the original judgment had been obtained through the fraudulent and ill practices of Judge Humphries, Joe A. Fryar and Fryar’s attorney, J. Minos Simon.

During the course of the proceedings, Karst filed a motion for summary judgment alleging that Judge Humphries, or his court reporter, had altered the transcript of the original trial. He contended that the alterations constituted an “ill practice” requiring a nullification of the judgment. Fryar also filed a motion for summary judgment seeking dismissal of the nullity action. In support of his motion for summary judgment, Fryar submitted affidavits from his attorney, J. Minos Simon, and Judge Humphries which denied the allegations of fraud and ill practices.

Following a hearing on the motions, the trial judge granted Fryar’s motion for summary judgment and dismissed Karst’s action with prejudice. Karst has perfected this appeal from the court’s ruling.

Appellant makes two assignments of error. He contends that the trial court should have granted his motion for summary judgment on the grounds that the trial transcript in the original action had been editorialized in contravention of La.C.C.P. Art. 372. Secondly, he contends that the trial judge erred in granting defendant’s motion for summary judgment.

ASSIGNMENT OF ERROR #1

Plaintiff alleges that Judge Hum-phries or his court reporter altered the transcript of the trial. He urges that the alteration of the transcript was a violation of La.C.C.P. Art. 372 constituting an “ill practice” requiring the nullification of the judgment.

La.C.C.P. Art. 372 provides in pertinent part:

“The court reporter of a trial court, when directed by the court, shall report verbatim in shorthand by stenography or sten-otype, or by voice recording or any other recognized manner when the equipment therefor has been approved by the court, the testimony of all witnesses, the other evidence introduced or offered, the objections thereto, and the rulings of the court thereon, on the trial of any appealable civil case or matter.
When the court so directs, or the fees therefor have been paid or secured, or when an appeal has been granted in cases in which a party has been permitted to litigate without the payment of costs, he shall transcribe verbatim in a manner approved by the supreme court, all of his notes taken at the trial, or such portion thereof as is designated. He shall file one copy of the transcript in the trial court; shall deliver a copy thereof to each of the parties who has paid therefor; and, when an appeal has been granted, he shall furnish to the clerk of the trial court the number of copies of the transcript required by law.”

The article requires a verbatim transcription of all notes taken at the trial. An examination of the record reveals that the court proceedings were not transcribed verbatim. Ms. Virginia Biggers, Chief Examiner of Court Reporters for the State of Louisiana, stated in an affidavit that the transcript of the oral reasons for judgment is not a verbatim record of the reasons as they appear on tape.

The trial judge, in rejecting plaintiff’s motion for summary judgment, made the following finding:

“With regard to alterations in the Oral Reasons for Judgment, Judge Humphries declared in his affidavit that ‘he did not change the substance of the oral reasons for judgment but did make corrections for grammar, sentence structure and paragraph structure and matters of that nature.’ The excerpts from the Oral Reasons bear out his statement. The changes noted on the excerpts were for the most part grammatical. For example, on page 2376 ‘wouldn’t’ became ‘would not’ and ‘didn’t’ became ‘did not’. There were a few instances where words were omitted or added, but those modifications did nothing to change the substances of the oral reasons. For example, on page 2689 appears the sentence ‘Mr. Fryar contends that it is because it was based on extortion.’ rather than ‘Mr. Karst, I mean, Mr. Fryar contends that it is because it was based on extortion.’ A study of all the relevant documents on file demonstrates that there is no genuine issue of material fact that certain words and phrases were placed in capitals, italics and quotation marks; that the transcript does not go to the bottom of each page; and that certain changes were made in the Oral Reasons for judgment. Those facts do not, however, entitle plaintiff Karst to judgment as a matter of law. The use of italics, capitals and quotation marks do not change the substance of the testimony. The Court does not believe that the Court of Appeal was or would be influenced by the style or type used to transcribe a proceeding. Similarly, the changes made in the Oral Reasons did not alter their substance or their meaning in any way. Under these circumstances, Karst’s motion for summary judgment must be denied.”

After a careful examination of the record, we find no error in the trial court’s judgment rejecting appellant’s motion for summary judgment. Any alterations which appear in the record do not affect the substance of the transcript. Such alterations, do not constitute “ill practices” requiring the nullification of the judgment.

ASSIGNMENT OF ERROR #2

Appellant contends that the trial judge erred in granting defendant’s motion for summary judgment because genuine issues of material fact remain for resolution at trial.

La.C.C.P. Art. 966 provides:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. As amended Acts 1966, No. 36, § 1.”

Plaintiff’s petition for nullity alleges that the original judgment was obtained by fraudulent and ill practices perpetrated by Judge Humphries, Fryar, and Fryar’s counsel. In support of this contention, plaintiff alleges that Judge Humprhies was biased and prejudged the case; that Joe Fryar and J. Minos Simon, his attorney, bribed or blackmailed Judge Humphries into rendering the judgment, and that certain witnesses committed perjury at the trial of the case.

Defendant, in support of his motion for summary judgment, filed affidavits from Judge Humphries and J. Minos Simon denying the allegations of fraud. Simon stated that he did not bribe, blackmail or otherwise corrupt Judge Humphries into rendering any decision against Karst. Fryar stated that he did not bribe, blackmail or influence Judge Humphries in any litigation involving Edward Karst. In his affidavit, Judge Humphries denies prejudging the case or being bribed, blackmailed or corrupted.

Concerning Fryar’s motion for summary judgment, we quote with approval the trial judge’s reasons for granting same, as follows:

Karst alleges that Judge Hum-phries threatened him while he was on the witness stand, saying, ‘You better settle this case.’ Judge Humphries refutes that allegation in his affidavit. While there is an issue of fact as to whether or not Judge Humphries did make that statement, the issue is not material to the present suit. Even if Judge Humphries made that statement, it does not fall into the category of fraud or ill practices such as would change the outcome of the prior lawsuit.
Karst alleges that Judge Humphries pre-judged the case. In his deposition, taken August 18, 1979, Karst stated that it is a ‘logical inference from the facts’ as they developed in the original lawsuit that Judge Humphries pre-judged the case. (Dep., p. 102).
With regard to the [sic] Karst’s allegation that Joe Fryar or Fryar’s attorney Simon bribed, blackmailed or otherwise corrupted Judge Humphries into rendering the disputed judgment, Karst, in the deposition taken March 9, 1979, stated that ‘it’s just a matter of logical inference’ that Judge Humphries was bribed, blackmailed or corrupted. (Dep., pp. 2, 11). He further declared that ‘the record is replete with sufficient facts to establish to a reasonable person that such a thing did occur,’ (Dep., p. 2) and ‘I can’t imagine Guy Humphries making the findings he did unless he was so bribed, blackmailed or otherwise corrupted.’ (Dep., p. 9).
In his affidavit Judge Humphries denies prejudging the case and being bribed, blackmailed or corrupted. Fryar and his attorney, Simon, also deny the bribery, blackmailing and corrupting. The law requires a plaintiff alleging such matters as fraud to specifically plead the facts involved. Karst has failed to do so. He alleges only the conclusions that Judge Humphries prejudged the case and was bribed, blackmailed or corrupted. ‘A logical inference’ is not a factual averment; it is a conclusion. A reading of the pleadings, depositions and affidavits show that Karst has alleged no facts but only conclusions. Therefore, there is no genuine issue of material fact.
Furthermore, if, as Karst contends, the fraud is evident from the record, then he had the opportunity to present those matters on appeal. He does not contend that he was prevented by some artifice from presenting those matters to the Court of Appeal. Rather, he stated in his deposition dated March 9, 1979, ‘That’s mot to say that the facts weren’t out there. I hadn’t put them together, that’s all.’ (Dep., p. 48).
Karst alleges that Joe E. Fryar, David Sheffield and Nola Powers Shattuek committed perjury during the trial of Karst v. Fryar, No. 97,685 and Fryar v. Karst, No. 97,699. However, Karst admitted in his depositions that he was aware at the time those three people testified that they were lying. He stated that the trial record itself demonstrates Shattuck’s and Sheffield’s perjury. He declared ‘it’s logically impossible, to my way of thinking .. . for Sheffield ... or for Nola Shad-dock to have been telling the truth.’
Karst also claims that some of the evidence that would have shown Fryar lied was excluded at the trial. However, he admits raising that issue on appeal. He admits presenting the credibility issue to the trial court. He contends in his deposition to have some HUD documents which will prove Fryar lied. However, he also admitted thinking of the possibility of using those documents before trial, discussing them with someone (referred to as ‘they’) and having those persons go talk to the HUD people.
Such baseless, conclusory assertions as these do not suffice to create a genuine issue of fact. Furthermore, Karst knew the (alleged false) testimony was false. He had the opportunity to attack the testimony in court, and if, as he claims, the perjury is a matter of record, he had the opportunity to present it on appeal. One seeking to annul a judgment obtained through prejured evidence must allege that he did not know at the time that the evidence was false, or if he knew, that he did not have the means or opportunity at the time to contradict it. Cryer v. Cryer, 70 So.2d 752 ([La.App.] 1st Cir.1954); LeBlanc v. LeBlanc, 162 So.2d 838 ([La.App.] 1st Cir.1964).
Karst contends that Judge Humphries ‘interjected’ himself in the case of State of Louisiana v. John Snyder, that he ‘involved’ himself in the case of Reynolds v. Reynolds, and that he ‘usurped’ the case of Karst v. Carlson from another judge. Judge Humphries denies doing these things. While there is arguably a question of fact, the issue is not material to the present suit. There are no factual allegations linking such action to the procurement of the disputed judgment.
Similarly, the allegations that Judge Humphries has committed public payroll fraud and has solicited funds for his son to play professional golf have nothing to do with the issue in the present lawsuit, that is, whether the judgment was obtained by fraud and ill practices.
Karst also contends that Judge Hum-phries prevented his taking the deposition of one J. Douglas Nesom. He states in his deposition dated August 18,1979, that he was present when his attorney, Boren, was taking Nesom’s deposition. Nesom refused to answer some questions, claiming the attorney-client privilege. Boren called Judge Humphries on the phone to get a ruling ordering Nesom to answer the questions. Judge Humphries refused to order Nesom to respond to the questions. Karst claims that ‘the whole bit about taking the deposition of J. Douglas Nesom is highly questionable’ and casts ‘serious questions upon the integrity of the Court and the integrity of the proceedings [sic]. (Dep., p. 106).
Here again Karst has made unsubstantial contentions rather than allegations of fact.
After giving due consideration to the pleadings, depositions, affidavits and other documents on file, the Court concludes that there is no genuine issue of fact material to the present suit. A judgment can not be reopened each time a litigant makes mere conclusory allegations of impropriety. He must set forth facts, not merely matters of inference, conjecture, belief or suspicion. Public policy demands that there be finality and permanency to judgments. Furthermore, the Court is convinced that plaintiff is seeking to relitigate the issues of the original lawsuit. Such is not the purpose of the action to annul. Defendant Fryar is entitled to judgment rejecting plaintiff’s demand for annullment as a matter of law.”

Our review of the pleadings in this case and all documents in connection with Fryar’s motion for summary judgment, and particularly the deposition of Karst, together with the record of the original cases which are reported at 361 So.2d 1344 and 1347, and also the trial judge’s reasons for judgment quoted above, leads us to conclude that summary judgment in favor of defendant was properly granted.

For the above and foregoing reasons, the judgment of the District Court denying summary judgment in favor of plaintiff, C. Edward Karst, and the granting of summary judgment in favor of defendant, Joe E. Fryar, is affirmed.

All costs to be assessed against C. Edward Karst.

AFFIRMED.

      . Although not the case here, a trial judge may sign a judgment based on written reasons which differ substantially from previously stated oral reasons. Margan v. Precision Motors, Inc., 317 So.2d 664 (La.App.4th Cir.1975).

      2. Footnote by Court of Appeal. La.C.C.P. Art. 856 mandates that the circumstances constituting fraud or mistake be alleged with particularity.

      3. Footnote by the Court of Appeal. Those cases are the ones previously affirmed by this Court at 361 So.2d 1344 and 1347.