author: DOMENGEAUX, Judge.

text:
    H. G. ANGLE COMPANY, INC., Plaintiff-Appellee, v. Jim TALMADGE, d/b/a Jim Talmadge Air Conditioning, Audubon Construction Corporation, and Seaboard Surety Company, Defendants-Appellants.
    No. 8540.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.

      Gahagan & Gahagan, H. C. Gahagan, Kelly & Salim, Donald G. Kelly, Whitehead & McCoy, Kenneth D. McCoy, Natchitoches, for defendants-appellants.
    Love, Rigby, Dehan, Love & McDaniel, Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is an action by the supplier of air conditioning components and systems, H. G. Angle, plaintiff-appellee, against an electrical sub-contractor, Jim Talmadge, d/b/a Jim Talmadge Air Conditioning, defendant-appellant, a general contractor, Audubon Construction Corporation, defendant-appellant, and its surety, Seaboard Surety Company, defendant-appellant. More particularly, this is an action brought under the Private Works Act, LSA-R.S. 9:4801, et seq., for the enforcement of a material-man’s lien and privilege for building supplies and materials furnished for use in the construction of the Cane River Shopping Center located in Natchitoches, Louisiana.

The trial court awarded judgment in favor of plaintiff Angle and against defendants, Talmadge and Seaboard, in solido, recognizing the materialman’s lien, and further awarding judgment in the sum of $3,930.00 plus 10% statutorily imposed attorney’s fee, $50.00 attorney’s fee for preparing the lien, and $10.00 for the recordation of the lien. From this adverse judgment Talmadge and Seaboard have appealed.

Appellants suggest that the trial court erred in:

(1) recognizing the materialman’s lien on the shopping center in favor of plaintiff; and
(2) holding the general contractor’s surety, Seaboard Surety Company, liable in soli-do with defendant Talmadge, when there was no showing of privity between the supplier, Angle, and the general contractor, Audubon Construction Corporation.

Charles Gremillion and Mercedes Spedale, owners of a piece of property located in Natchitoches, Louisiana, entered into a contract with Audubon Construction Corporation (Audubon) for the construction of a certain building thereon known as Cane River Shopping Center. In compliance with the Private Works Act, Audubon obtained a performance and payment bond from Seaboard Surety Company (Seaboard). In connection with the construction of the building, Audubon sub-contracted with Jim Tal-madge, d/b/a Jim Talmadge Air Conditioning (Talmadge) for the heating and air conditioning installation in one of the buildings. The prospective tenant for this building was Winn-Dixie La., Inc.

By quotation dated July 12, 1977, plaintiff-appellee H. G. Angle (Angle) proposed to furnish and supervise the installation of a temperature control system along with two smoke detectors for the price of $3,930.00. The offer was accepted by defendant Talmadge on December 14, 1977. Following the acceptance by Talmadge, Angle began to accumulate the materials, fabricate the component parts, and put the control system together. The system was delivered to Talmadge at the Winn-Dixie jobsite on March 7, 1978. After delivery of the system, Talmadge was informed by a representative of Winn-Dixie that the system supplied by Angle would not be used. Instead, Winn-Dixie would supply its own system. After being so informed, Tal-madge attempted to return the Angle control system. Angle, however, refused to accept return of the merchandise. Thereafter, Talmadge failed to make payment for the control system, and on May 23, 1978, Angle filed the materialman’s lien on the shopping center to secure recovery of the sales price. On June 2, 1978, Audubon and Seaboard posted bond for the removal of said materialman’s lien and this suit followed.

The defendants named by the plaintiff include Talmadge, Audubon, and Seaboard. Audubon and Seaboard answered the plaintiff’s demands and filed a third party demand against Talmadge and his conventional surety, the City Bank and Trust Company of Natchitoches. Both Talmadge and the City Bank responded by denying the allegations contained in the third party demand and adopted as a defense the non-use of the air conditioning components coupled with an intent of return to the plaintiff by Talmadge. Audubon, Seaboard, Talmadge, and City Bank compromised their differences prior to trial. As part of the compromise, City Bank and Talmadge agreed to defend Audubon and Seaboard against the demands of Angle. For this reason Audubon and Seaboard waived their presence at trial and permitted a consolidated defense to Angle’s demands.

VALIDITY OF MATERIALMAN’S LIEN

In support of the trial court’s recognition of the materialman’s lien, appellee contends, that in bonded private work contracts, delivery of the materials to the job-site creates an irrebuttable presumption that the materials are incorporated into the structure and cites Graphic Arts Bldg. Co., et al. v. Union Indemnity Co., 163 La. 1, 111 So. 470 (1927). We do not agree.

Graphic, supra, and the other similar cases cited by appellee do not establish an irrebuttable presumption of incorporation of materials in the building, in bonded cases, upon delivery of the materials to the job-site. On the contrary, these cases, as we read them, merely establish the burden of proof required to hold a surety liable for materials supplied by a materialman. These cases hold a surety liable upon the materialman proving delivery and acceptance of the materials at the jobsite, and relieve the materialman from further proving that the materials are in fact incorporated in the structure. The placing of liability on the surety upon delivery and acceptance, however, does not ipso factor give rise to the right of materialmen to secure a lien on the structure when, in fact, the materials are not used or consumed in the construction of the edifice.

Under our jurisprudence, once a ma-terialman has satisfactorily shown delivery of the materials to the jobsite, the burden of proving that the materials were not in fact used in the structure is shifted to the party contesting the recognition of the lien. Hortman-Salmen Co., Inc. v. Raymond, 13 La.App. 490, 127 So. 452 (Orl.Cir.1930); Laney Co., Inc. v. Airline Apartments, Inc. 223 La. 1000, 67 So.2d 570 (1953); Jim Walter Corporation v. Emanuel, 274 So.2d 867 (La.App. 4th Cir. 1973); Century National Bank v. Parent, 341 So.2d 1371 (La.App. 4th Cir. 1977).

The facts presented at trial are essentially undisputed. On March 7,1978, the temperature control system and smoke detectors were delivered by Angle to Tal-madge at the jobsite. Thereafter, on three separate occasions representatives of the plaintiff traveled to the jobsite to check and report on the installation progress. On each occasion, plaintiff’s employees reported that the temperature control system and smoke detectors, prepared by plaintiff for the Winn-Dixie jobsite, were not being installed. In April of 1978, Talmadge attempted to return the temperature control system to Angle. At this point Angle was aware that the system which they prepared was to be replaced by one chosen by Winn-Dixie. Angle refused to accept the return of the materials, forcing Talmadge to store them at his warehouse. At trial Mr. Angle and one of his employees testified that they had inspected Winn-Dixie earlier that morning. They verified that the temperature control system prepared by them was not installed at the Winn-Dixie store. Under the foregoing facts, we find that the trial court erred in allowing the material-man’s lien to stand once the defendants clearly established that the plaintiff’s materials were not in fact used or consumed in the construction of the building. Consequently, the trial court awards of $10.00 for the recording of the lien and $50.00 attorney’s fee for preparing the lien are also denied.

LIABILITY OF THE GENERAL CONTRACTOR’S SURETY

Appellants contend that the trial court erred by holding defendant Seaboard solidarily liable with Talmadge, when there was no showing of privity between the ma-terialman, Angle and the general contractor, Audubon. Additionally, appellants contend that Seaboard expressly limited its liability by the terms of its surety bond. The performance and payment bond purport to limit Seaboard’s liability to “. .. all persons who have supplied labor or materials directly to the Principal ...” We find that appellants’ contentions, however, are without merit.

Although Seaboard attempted to limit its liability as surety by the terms of its bond, once a contract and bond have been properly entered into and recorded in compliance with the Private Works Act, the bond is considered as being a statutory bond, and incorporates by reference all of the provisions of the Private Works Act. As such, the parties are not free to delimit liability of the surety on the bond. Minden Presbyterian Church v. Lambert, et al, 167 La. 712, 120 So. 61 (1929); Electrical Supply Co. v. Eugene Freeman, Inc., et al, 178 La. 741, 152 So. 510 (1933); Bowles & Edens Company v. H & H Sewer Systems, Inc., 324 So.2d 528 (La.App. 1st Cir. 1975), writ denied 350 So.2d 896 (La.1977).

The pertinent provisions of the Private Works Act insofar as this plaintiff is affected thereby are as follows:

“§ 4803. Surety’s liability
Subject to the limitation provided in R.S. 9:4814, where the owner has required the bond herein provided, the surety thereon shall be liable in solido with the contractor for all labor and materials used in the said work of improvements and the costs of recording valid privileges up to the amount of the bond, and the cancellation and erasure of the inscription of the said contract, as hereinabove provided, shall not affect the liability of the said surety on the said contract for such labor and materials, as to which labor and materials the said surety shall be bound to the same extent as the said contractor, undertaker, master-mechanic, or engineer, or other person undertaking the work.
§ 4814. Remedies against surety; record of claim; service of copy
A. Except as provided in Subsection C of this Section nothing in this Sub-part shall be so construed as to deprive any claimant of his right of action against the surety signing and bond furnished in connection with any building contract or subcontract, or against the principal obligor thereunder, which right of action against such obligor and the said surety shall accrue at any time after maturity of the claim of the said claimant.
H» * * # * • *
C. Before any person having a direct contractual relationship with a sub-contractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he must record his claim as provided in R.S. 9:4802 or give written notice to said contractor within thirty days from the recordation of the notice of acceptance by the owner of the work or notice by the owner or default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.”

Upon reading these provisions together, there can be no question as to Seaboard’s liability under its bond. LSA-R.S. 9:4803 and 9:4814 clearly hold the surety solidarily liable with the contractor even where privity lacks between the contractor and the suppliers or the materialmen. See Harris Paint Company v. Quinn Construction Company, Inc., 282 So.2d 543 (La.App. 4th Cir. 1973). Likewise, under the present facts, Seaboard’s bond must be considered a statutory bond, and, as such, any provision purporting to limit liability below that required by the Private Works Act is void.

For the above and foregoing reasons the judgment appealed from is affirmed in part and reversed in part, and recast as follows:

It is Ordered, Adjudged, and Decreed that judgment be rendered herein in favor of plaintiff H. G. Angle Company, Inc., and against defendants Jim Talmadge, Audubon Construction Corporation, and Seaboard Surety Company, in solido, in the sum of $3,930.00, with seven percent (7%) per an-num interest thereon from date of judicial demand until September 12, 1980, and ten percent (10%) per annum interest thereon thereafter until paid, plus ten percent (10%) on both principle and interest representing the statutorily imposed attorney fee.

It is further Ordered, Adjudged, and Decreed that the materialman’s lien filed by plaintiff Angle located in the mortgage records of Natchitoches Parish in Mortgage Book 371, page 23, be declared null and void, and that the inscription of said lien be cancelled.

Costs of this appeal are taxed one-half (Vz) to appellants and one-half (V2) to appel-lee.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

GUIDRY, J., concurs.

      . LSA-R.S. 9:3902 provides for a 10% attorney’s fee when the surety on a bond fails to pay his obligation and it becomes necessary for the creditor to sue thereon.

      . It was the evident intention of the owner to exact of the contractor the bond required by statute, and it was also the evident intention of the contractor and the surety to give such a bond. Furthermore, all procedural requirements under the act were met.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Nolan GAMBLE, Plaintiff-Appellee, v. BILL LOWREY CHEVROLET, INC., et al., Defendants-Appellants.
    No. 8544.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    On Rehearing Feb. 18, 1982.

      William P. Polk, Alexandria, for defendants-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee-appellant.
    Kelly & Salim, Robert L. Salim, Natchi-toches, for plaintiff-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

In this redhibition suit the defendants, Bill Lowrey Chevrolet, Inc. (Lowrey Chevrolet) and General Motors Corporation (General Motors), have appealed from a judgment in favor of the plaintiff, Nolan Gamble. Lowrey Chevrolet’s appeal is also directed at the failure to grant its third party demand, based on an indemnification agreement, against General Motors.

On December 12, 1978, Mr. Gamble purchased a new 1979 Chevrolet half ton diesel pick-up truck for $9,104.99 from Lowrey Chevrolet in Natchitoches, Louisiana. The sale of the vehicle included an express warranty of one year or 12,000 miles, whichever came first. In February, 1979, the plaintiff began to experience problems in the engine .overheating. At the end of June extensive engine repair, including the replacement of an engine assembly, became necessary. This was done by Lowrey Chevrolet and completed on August 2 at a cost of $1,305.45. The following day transmission fluid lines burst rendering the vehicle immobile. The truck was towed to the plaintiff’s yard where it has remained. At the last breakdown the vehicle had travelled approximately 30,900 miles.

At the request of Lowrey Chevrolet General Motors paid $671.00 on the June repair bill. However, the dealer continued to bill the plaintiff for the full amount of the invoice.

On November 27, 1979, the plaintiff filed this rehibitory action alleging that the engine continued to run hot despite two attempts by Lowrey Chevrolet to correct this condition by changing the thermostat; that the vehicle had a defective oil pump shaft which Bill Lowrey Chevrolet attempted to repair; and its transmission is defective.

In an agreement between the defendants, General Motors agreed to indemnify Low-rey Chevrolet against any judgment for monetary damages resulting from a defect in the manufacture of their products.

The trial court rescinded plaintiff’s purchase of the truck and held the seller, Low-rey Chevrolet, and the manufacturer, General Motors, liable in solido for the purchase price of $9,104.99, minus a credit of $3,000.00 for the plaintiff’s use of the vehicle, and for $3,000.00 as attorney fees. The plaintiff was also granted judgment against Lowrey Chevrolet for $1,305.45 as the cost of the repair work done in June and July, but no mention was made of Lowrey Chevrolet’s third party demand against General Motors.

The principal issues presented by these appeals are: 1) whether the trial court erred in rescinding the sale based on rehibi-tory defects; 2) whether it erred in failing to apply the express sales warranty limitation provisions; and 3) whether the court erred in failing to give effect to the indemnification agreement between Lowrey Chevrolet and General Motors.

The defendants argue that the plaintiff failed to prove the defects existed at the time of purchase and that the seller was unable to correct them. They contend the evidence clearly showed that the vehicle’s transmission could be repaired for $500 and that there was no evidence of any other presently existing defect which would require rescission. We disagree.

In Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3 Cir. 1980), this court stated:

“To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defects. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that seller could not, or would not, correct the defects when given the opportunity to do so. LSA-C.C. Articles 2520, 2521, 2530, 2531; Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1 Cir. 1976).

In an action of redhibition, however, it is not necessary for the purchaser to prove the particular and underlying cause of the defect in a complicated piece of machinery. It is sufficient that the buyer merely show that the vehicle was defective prior to the sale. Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3 Cir. 1975). Proof that the defect existed at the time of the sale can be either direct or circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of sale. Newman v. Dixie Sales & Service, 387 So.2d 1333 (La.App. 1 Cir. 1980).

In the instant case the plaintiff testified he purchased the truck in December, 1978, for extensive travel on his paper route. In February, 1979, he noticed the engine was overheating. Lowrey Chevrolet installed two new thermostats for the cooling system. However, the engine continued to overheat so long as it was used. On April 5 it was necessary to replace a swing bearing. On June 27 the plaintiff had to bring the truck to Lowrey Chevrolet for further engine repair. The truck’s pump shaft had rounded off and burned a bearing in the motor. A new engine assembly was installed to correct the problem. The plaintiff got the truck back on August 2. The next day transmission fluid lines burst and the gaskets on the new engine were leaking oil. Plaintiff called Lowrey Chevrolet and reported that his truck had gone out on him. He was told by Mr. Troquille, one of Lowrey Chevrolet’s employees, that no work could be done on the truck until he paid the balance of $1305.45 on the previous bill and also the additional repairs. Plaintiff acknowledged that the truck’s engine runs now, but he said the vehicle will not move because of transmission problems.

The plaintiff’s case was supported by an experienced mechanic, who testified that he inspected the truck at plaintiff’s request after the last breakdown and found that the transmission fluid lines were not even “finger tight.” The injectors and valve cover gaskets were leaking motor oil. This witness estimated the cost to repair the transmission at $500.00. Two other witnesses testified on behalf of the plaintiff and said that they were familiar with the truck running hot and occasionally stopping.

Lowrey Chevrolet’s service manager testified the Company records did not show any overheating problems until early June, 1979, when the thermostat was replaced and the cooling system flushed. At the end of June there was a major breakdown, requiring replacement of the engine assembly, with General Motors paying for one-half the cost of the block. He had heard about the subsequent transmission trouble, but said that Lowrey Chevrolet had never touched the transmission hoses on the truck. He said the truck could not have been driven over five or ten miles had there been a leak in its transmission when it left their shop.

The sales manager at Lowrey Chevrolet said he knew the plaintiff had complained that the truck was overheating. He also testified he had no personal knowledge of Mr. Troquille, the seller’s credit correspondent, telling plaintiff that he would have to pay for the June repair invoice before further work could be done on the transmission. Troquille was unavailable to testify since he no longer resides in Louisiana.

The General Motors area service manager testified he examined the truck at Gamble’s premises. When the engine was cranked it ran fine. However, he did not try to move the vehicle, because it had two or three flat tires. Nor did he check the transmission lines. He acknowledged that it would be unusual to have to replace two thermostats in six months.

From this evidence the trial judge concluded that the plaintiff had sustained the required burden of proof as to the elements of the action, stating in his written reasons for judgment:

“The Court finds that the truck did in fact have redhibitory vices and defects from the time that it was purchased and accepts the plaintiff’s testimony concerning the installation of thermostats in the cooling system; the Court further accepts the plaintiff’s testimony concerning the problems which led to the repair bill of June of 1979 which totalled $1,305.45. “There has been some evidence and the Court finds that these defects existed at the time plaintiff purchased the vehicle sold by Lowrey but manufactured by GMC.”

From our review of the record, we cannot say that the trial judge’s findings were clearly wrong. Therefore we must affirm his rescission of the sale. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Lowrey Chevrolet also argues that the express sales warranty, limiting the plaintiff’s warranty to 12 months or 12,000 miles, prevented recovery by the plaintiff in this action since the vehicle had slightly over 30,000 miles on its odometer at the final breakdown. Again we must disagree.

It is clear that express warranty provisions in automobile manuals and other documents delivered with the vehicle have no effect upon the statutory warranty of fitness. Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972). The record does not indicate that the plaintiff renounced the implied warranty of fitness.

Since the plaintiff has not paid any part of the June 27,1979, invoice of $1305.45 for replacement of the truck’s engine, the judgment of the trial court in this respect must be amended. Our decree will simply provide that plaintiff is not indebted to Low-rey Chevrolet in any amount for such repair work and that credit must be given him on the latter’s records for any sum that may be shown thereon as being owed for such repairs.

We are convinced the trial court was manifestly in error in concluding that the seller in this instance was in bad faith and therefore its judgment against Lowrey Chevrolet for an attorney’s fee must be reversed. A seller is in good faith if he did not know of the vices of the thing sold. Of course, the manufacturer is presumed to know the vices of the thing he sells and consequently it must pay a successful plaintiff a reasonable fee for his attorney in this type of action. Associates Financial Services Co. v. Ryan, supra.

Although neither defendant has sought return of the truck, plaintiff’s counsel has acknowledged in brief that they are entitled thereto in view of the rescission of the sale and we will so decree.

Lowrey Chevrolet also contends that the trial court erred in failing to award judgment in its favor against General Motors on the third party demand. With this we agree.

The indemnification agreement between these two parties states in pertinent part:

“General Motors will assume the defense of Dealer and indemnify Dealer against any judgment for monetary damages, less any offset recovered by Dealer, in any lawsuit naming Dealer as a defendant relating to any Product that has not been altered by or for Dealer when the lawsuit concerns:
“(a) Breach of the General Motors warranty related to the Product, bodily injury or property damage claimed to have been caused solely by a defect in the design, manufacture or assembly of a Product by General Motors (other than a defect which should have been detected by Dealer in a reasonable inspection of the Product); ”

Having concluded that the truck contained redhibitory vices and defects prior to the sale and there being no evidence in the record that Lowrey Chevrolet caused same or knew or should have known thereof, the latter is entitled to judgment against General Motors for indemnification of the monetary judgment, less the offset, rendered against it herein.

For the foregoing reasons the judgment of the trial court is recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the sale of the 1979 Chevrolet diesel half ton truck, Vehicle Identification No. CCZ149S137030, on December 12, 1978, by defendant, Bill Lowrey Chevrolet, Inc., to plaintiff, Nolan Gamble, be and is hereby rescinded and set aside.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Nolan Gamble, and against the defendants, Bill Lowrey Chevrolet, Inc. and General Motors Corporation, in solido, in the sum of $9,104.99, less a credit of $3,000.00 for the use of the vehicle by the plaintiff, together with legal interest from judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Nolan Gamble, and against the defendant, General Motors Corporation, in the sum of $3,000.00 for attorney’s fees.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Nolan Gamble, is not indebted to the defendant, Bill Lowrey Chevrolet, Inc., in any amount for repair work performed on the said truck as shown on the latter’s invoice No. 1555, dated June 27, 1979, in the sum of $1305.45; and if any charge for such work exists on the latter’s books it is ordered to delete same.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Nolan Gamble, return the said truck to defendants, Bill Lowrey Chevrolet, Inc. and General Motors Corporation, free and clear of encumbrances.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein on the third party demand in favor of third party plaintiff, Bill Low-rey Chevrolet, Inc., and against third party defendant, General Motors Corporation, for all sums which the third party plaintiff is obligated to pay to the plaintiff under this judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of court, including this appeal, be and they are hereby assessed to General Motors Corporation.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

ON REHEARING

In our original decision we overlooked Lowrey Chevrolet’s request for an attorney’s fee from General Motors and thus erred. LSA-C.C. Art. 2545; Paul v. Ford Motor Co., 392 So.2d 704 (La.App. 3 Cir. 1980); Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1 Cir. 1980).

From our review of the record we find that $2500.00 will be a reasonable attorney’s fee for such services rendered the seller in this case, including this appeal, and we will add this award to our original decree.

For the foregoing reasons, we amend the decision originally rendered herein so as to add to the judgment in favor of the third party plaintiff, Bill Lowrey Chevrolet, Inc., against the third party defendant, General Motors Corporation, an award of $2500.00 as an attorney’s fee for all services rendered in this case. In all other respects our original decision shall remain in effect as rendered.


author: STOKER, Judge.

text:
    J. Boring MONTGOMERY, M.D., Plaintiff-Appellant, v. Ronald J. FOREMAN, Executor of the Succession of J. Y. Foreman, Defendant-Appellee.
    No. 8608.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Daniel G. Fournerat and Gordon T. Whitman, Lafayette, for plaintiff-appellant.
    Hayes, Fazzio & Durio, Steven G. Durio, Lafayette, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   STOKER, Judge.

This case presents two basic issues on appeal: (1) Whether the contract in question creates a mandate or agency “coupled with an interest” of the agent; and (2) if so, whether the contract remains valid after the death of the agent.

„ The facts in this case are easily stated. J. Boring Montgomery, M.D. (Montgomery), is one of several co-owners of certain tracts of land in Lafayette, Louisiana, who entered into an agreement with J. Y. Foreman (Foreman), realtor, for the commercial or residential development of the property. The agreement was entered into on March 27, 1973, and on March 1, 1979, Foreman died. Montgomery subsequently sought a declaratory judgment from the Fifteenth Judicial District Court in Lafayette to the effect that the contract became null and void with the death of Foreman. Ronald J. Foreman, executor of J. Y. Foreman’s succession, filed a peremptory exception of no cause of action to Montgomery’s petition for declaratory judgment. The district court sustained the exception of no cause of action and Montgomery has appealed the decision.

A copy of the contract between the owners of the property to be developed and Foreman (designated in the contract as “Agent”) is appended to this opinion for ease of reference. The contract gave Foreman the power to develop the property as he saw fit (Paragraphs III, IV, and IX) and authorized him to sell the property for the owners (Paragraph VI). Foreman was obligated to pay the owners $40 per running foot for all lots sold. The balance Foreman received from the sale of any lot was his property. (Paragraph VI). The owners are responsible for any taxes owing on the properties (Paragraph VIII), but the agent bears the entire cost of developing the properties. (Paragraph IV, V, and IX).

Paragraph X of the contract provides that the property shall be listed exclusively with Foreman for 15 years from the date of the contract (March 27,1973) with Foreman having an option to renew for an additional 10 years. The last sentence of Paragraph X states:

“The Owners hereby acknowledge that the consideration for this listing shall be payment of the improvements as well as the development cost of said property by the said Agent, in addition to other consideration hereinabove mentioned.”

However, it is stated in Paragraph VI that any amount that Foreman receives above $40 per running foot is “the profit of the said Agent as his consideration hereunder.” Thus, it is understood that Foreman is to recoup his expenditures for developing the property from the amount for which he sells the improved property.

Finally, the agreement is made “binding upon the successors and assigns of all parties,” in Paragraph XIII.

Plaintiff Montgomery argues that the contract is one of mandate or agency and as such it expired with the death of the man-datary or agent. He cites LSA-C.C. art. 3027 for the general rule that a mandate is revoked by the death of the principal or agent. Plaintiff cites the cases of Marchand v. Gulf Refining Co. of Louisiana, 187 La. 1002, 175 So. 647 (La.1937); and Bryson v. United Gas Public Service Co., 169 So. 350 (La.App. 2nd Cir. 1936) for the proposition that a statement in a mandate that it is irrevocable has no effect unless the mandate is a power of attorney coupled with an interest. Plaintiff contends that the contract does not create a power coupled with an interest. Therefore, according to plaintiff, the contract expired with Foreman’s death despite the language in Paragraph 10 making the agreement heritable.

The trial court found the agreement to be not one of mandate, but a bilateral contract instead. The court’s reasons for judgment, found in a minute entry of March 9, 1981, are as follows:

“After reviewing the evidence contained in the record, the Court sustains defendant’s exception of no cause of action as to plaintiff’s petition for declaratory judgment. ' Plaintiff states in his petition that the contract between himself and J. Y. Foreman, which was made a part of the petition, is a contract of agency and, therefore, terminated upon the death of J. Y. Foreman. The Court finds no merit in the argument.
“The contract of mandate is an instrument which unilaterally delegates authority from the principal to the mandatary. The mandatary may act only within the restricted limits of the powers which are delegated to him. [LSA-C.C. art. 3027] provides that this type of contract terminates upon the death of the principal. The contract attached to the petition in no manner contains merely a unilateral delegation of authority. The contract is a contract of development of certain tracts of land and requires reciprocal duties on the part of the parties involved. It is apparent from Paragraph V of the agreement that Mr. Foreman was to bear all expenses of developing the property involved, including the costs of engineering, street improvements and ground le-velling. The duties, which are clearly delineated in the contract, are bilateral duties, not merely a unilateral delegation of authority.
“The petition for declaratory judgment states no alternative basis on which judgment could be rendered. It merely asks that the contract be terminated as of March 1, 1979, the date of the “agent’s” death. As previously stated, the Court finds no merit in plaintiff’s averment that this is a contract of mandate and, therefore, sustains defendant’s exception.”

Despite the last sentence of the trial court’s reasons which clearly states that the court finds no merit in plaintiff’s averment that the contract is one of mandate, the defendant argues in his brief that the trial court found that the agreement was not “merely” an agency or mandate. Defendant contends that the contract creates an agency relationship, but it is not only a contract of agency. The defendant urges that the contract creates a mandate “for the joint interest of both parties” under LSA-C.C. art. 2986.

We agree with defendant that the contract in this case is one of mandate. The mandatary, Foreman, had practical or effective authority to sell the property owned by the principals, Montgomery, et al, in a representative capacity. Under the contract between Foreman and the plaintiffs, Foreman was given complete authority to deal with the property. For example, Paragraph VI of the contract provides:

$ * Jje jfc s)c sfc
“The Agent is expressly empowered to buy or sell any lot involved herein for such price and under such terms and conditions as the Agent may deem fit and proper; provided the said Owners are to be paid the price per running foot herein-above established at the time of the sale of any lot involved herein.”
* * * * * #
“The Owners expressly agree to sign and execute any act of sale or conveyance necessary to transfer any portion of the above-described property to the «said Agent, or to such purchaser as the said Agent shall produce for the prices mentioned above.”

While the plaintiffs were required to sign all contracts for development and sales of lots, the plaintiffs bound themselves to sign whatever contracts were negotiated by Foreman. See particularly Paragraphs IV and VI. Since the making of the contracts was entirely at Foreman’s discretion and reflected his will only, the signing and execution of documénts by plaintiffs was the performance of ministerial acts only. This provision not only applied to third parties but to instances in which Foreman decided to purchase any portion of the property. This provision granted Foreman a virtual option to purchasé.

The agreement is probably also a mandate for the joint interest of both parties since both the mandatary and his principals contemplated a profit from the arrangement. However, this classification of the mandate under LSA-C.C. art. 2986 is not determinative of the issue of whether the mandate is heritable or whether it expires with the death of the mandatary.

The answer to this issue has been supplied jurisprudentially rather than in the Civil Code. The jurisprudence of Louisiana has adopted the common law principle that for a power of attorney to survive the death of the principal, it must be "coupled with an interest.” Therefore, we must determine whether the contract before us creates a power of attorney coupled with an interest and, if so, whether such a contract can survive the death of the agent.

POWER COUPLED WITH AN INTEREST

A short history of the concept of “power coupled with an interest” may help in this determination. The principle that a contract of agency is irrevocable if the power of attorney created thereby is coupled with an interest of the agent entered American jurisprudence in the 1823 U. S. Supreme Court decision of Hunt v. Rousmanier’s Administrators, 21 U.S. (8 Wheat.) 174, 5 L.Ed. 589 (U.S.1823). In that case, Chief Justice Marshall stated:

“We hold it to be clear that the interest which can protect a power after the death of the person who creates it, must be an interest in the thing itself. In other words, the power must be engraft-ed on the thing.” 8 Wheat. 174, 204; 5 L.Ed. 589, 597.

The Louisiana Supreme Court in the 1888 case of Renshaw v. His Creditors, 40 La. Ann. 37, 3 So. 403 (1888), citing French authorities, specifically rejected the common law “powers coupled with an interest” as found in the Hunt case. The court in Renshaw did hold the mandate in question was irrevocable and stated:

“Thus, the French court of cassation held that a mandate conferred in the interest of the agent as well as of the principal, and as a condition of a contract passed between them, is essentially irrevocable, and is not revoked by the failure of the principle (sic). (Citations omitted) The same principle applies in every case where the mandate is granted as a condition of the contract, or as a means of executing it. In such case, the mandate, forming an element of a synallagmatic contract, is impressed with the qualities of such a contract, and is irrevocable.” (Citations omitted.) 3 So. 403, 404-405.

However, the Louisiana Supreme Court in Louque v. Dejan, 129 La. 519, 56 So. 427 (1911) cited the Hunt case among many other common law and civil law authorities to find that the contingency fee contract of an attorney at law does not constitute a power coupled with an interest in the cause of action. Therefore, the client could revoke the mandate at will.

In 1925, the Supreme Court in Fowler v. Phillips, 159 La. 668, 106 So. 26 (1925) found that the irrevocable power of attorney described in LSA-C.C. art. 3027 is essentially the same as the common law “power coupled with an interest”. The court then adopted the definition of “power coupled with an interest” as found at 2 Corpus Juris 531, Verbo, “Agency” § 155, finding that the Louque decision had in effect approved this definition by citing Hunt. The Corpus Juris definition included a perhaps unnecessary inference of the holding in Hunt: that, to constitute a power coupled with an interest, the agent must be able to deal with the property which is the subject of the agency or power in his own name. The court in Fowler thus held that a mandate to sell realty in which the mandatary sells property in the owner’s name for a commission is revocable at the owner’s will.

The Second Circuit Court of Appeal in Bryson v. United Gas Public Service Co., supra, cited Fowler in finding that an agency in which the agent has no interest in the property other than his right to earn compensation or a commission is not coupled with an interest so as to be irrevocable. The court also based its holding on the fact that the agents in this case did not have the power to deal with the property in their own names.

This issue was again raised in Marchand v. Gulf Refining Co. of Louisiana, supra. In that case the Supreme Court quoted the Corpus Juris definition of “power coupled with an interest” from the Fowler decision, and based its holding that the mandate in that case was revocable on the finding that the interest of the agent was not an interest or title in the property itself. The court stated:

“. .. mandate may be revoked by will except where the mandate is coupled with an interest in the property itself and that interest must be such an interest that [the mandataries] could maintain this action in their own name.” 175 So. 647, 650.

However, in the case of Eduardo Fernandez Y Compania v. Longino & Collins, 199 La. 343, 6 So.2d 137 (1942), the Louisiana Supreme Court found that an agent’s security interest in the property over which he had control was an “agency coupled with an interest” which was not revocable at the mere will of the principal. In that case, a Tennessee resident had the right to sell amber for the account of a Honduras co-partnership. The Honduras co-partnership was indebted to the Tennessee resident for $5,000. The court found that the payment of this debt was secured by the amber or the proceeds from the sale of the amber belonging to the co-partnership. Therefore, the Tennessee resident had the power of agency coupled with an interest or estate in the amber to be disposed of or managed under the power. Thus, the agency was coupled with an interest in the thing which was the subject of the agency and was irrevocable.

The court in Eduardo Fernandez held that the agency was irrevocable despite the fact that the agent did not have the power to sell or otherwise dispose of the property subject to his agency in his own name. This holding is complicated by the fact that the court cites Louque v. Dejan, supra; Fowler v. Phillips, supra; Marchand v. Gulf Refining Co., supra; and Bryson v. United Gas Public Service Co., supra. All of these cases construe the case of Hunt v. Rousmanier’s Administrators, supra, to require that an agent have the power to sell the property subject to the agency in his own name for the agency to be irrevocable. It is clear that the agent in Eduardo Fernandez did not have this power; yet the Court held the agency to be irrevocable.

In the case of Robinson v. Hunt, 211 La. 1019, 31 So.2d 197 (1947) the Louisiana Supreme Court found that a mandate could not be dissolved at the will of the principal because the mandatary had an interest in the property subject to his mandate. In that case the court on rehearing reversed a judgment sustaining an exception of no cause of action, finding that an attorney-at-law who represented his clients in an adjudication over property, and who was assigned an interest in the mineral rights in that property, could not be dismissed by the clients without just cause.

More recently, the First Circuit found in Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir. 1962), that an attorney designated in a will to handle the testator’s affairs had a right to perform the services and be paid therefore, but that the obligation was revoked by the attorney’s death since he did not acquire the power to deal with the assets of the succession in his own name. The court invoked the Louisiana jurisprudence discussed above which required the agent to have the power to deal with the res in his own name for an agency to be irrevocable, and incorrectly cited the case of Renshaw v. His Creditors, supra, for this principle.

Most recently, this court in two cases, Bown v. Holland, 392 So.2d 726 (La.App. 3rd Cir. 1980), and Landreneau v. Granger, 401 So.2d 634 (La.App. 3rd Cir. 1981), held that the exception to the general rule that mandates are revocable at the will of the principal is that when the mandatary acquires an interest in the property, such that he may deal with it in his own name, the mandate is irrevocable. The cases of Marchand v. Gulf Refining Co. of Louisiana, supra; Eduardo Fernandez Y Compania v. Longino and Collins, supra; Robinson v. Hunt, supra; Succession of Zatarain, supra, are cited for this principle. In the Bown case, we held that a man who contracted to recover mineral royalties for the defendants from their property interests for half of the royalties recovered did not acquire a power coupled with an interest rendering his mandate irrevocable. In the Landreneau case a power of attorney which empowered the mandataries to manage the principal’s properties and which contained a paragraph purporting to render the mandate irrevocable was found to be a simple mandate revocable at the will of the principal despite the language to the contrary.

In the Bown and Landreneau cases, as in all of the other cases discussed above in which no power coupled with an interest was found, it was unnecessary to the holding to say that a power coupled with an interest requires the power to deal in the mandatary’s name with the thing which is the subject of the power. It would have been sufficient to say in all of these cases that the mandatary had no interest in the thing which was the subject of his mandate. The requirement that an agent be able to deal with the property in his own name is not found in Hunt v. Rousmanier’s Administrators, supra, but is a common law interpretation of that case. These requirements crept into Louisiana jurisprudence when the Corpus Juris definition of “power coupled with an interest,” which is a common law consensus of interpretation of Hunt, was quoted in Fowler v. Phillips, supra. Hunt v. Rousmanier’s Administrators, supra, which is not controlling over Louisiana Civil Code articles on mandate but which has affected them jurisprudentially as noted above, requires only that an agent have an interest in the property subject to his agency to constitute a power coupled with an interest. The power of an agent having legal or equitable title in the property to control it in his own name is a clear example of a power coupled with an interest but it is not the only way in which this power can be manifested.

The requirement that a mandatary have the power to control the property in his own name for the mandate to be irrevocable has been criticized in Louisiana. If a manda-tary has sufficient title in property subject to his mandate that he can sell or otherwise dispose of the property in his own name, an essential feature of mandate is destroyed. LSA-C.C. art. 2985 (quoted in footnote one above) defines a mandate as “an act by which one person gives power to another to transact for him and in his name ...” (emphasis supplied). A mandatary who contracts for himself and in his own name controls the property as an owner. It should be sufficient to require that a man-datary have a great enough interest in the property which he controls for and in the name of the principal that it would be inequitable or unjust to allow the principal to arbitrarily revoke the mandate. Such a mandate is permissible under LSA-C.C. art. 2986 which permits a mandate “for the joint interest of both parties.”

A useful test to determine whether the interest of the mandatary in the property subject to the mandate is great enough to render the mandate essentially irrevocable is that proposed in Renshaw v. His Creditors, supra: that when the mandate forms an element of a synallagmatic contract, the mandate is essentially irrevocable. In such cases, the mandate is merely a means of executing a bilateral agreement, or is granted as a condition of the contract. When the power coupled with an interest in the property subject to the power reaches this level such that it can be said that the contract containing the mandate is a bilateral or synallagmatic agreement, the principal cannot deny the mandatary his right in the property by revoking the mandate without just cause.

A mere interest in the exercise of the power, instead of an interest in the property upon which the power is to operate, is insufficient under this test to constitute a power coupled with an interest. Examples of a mere interest in the exercise of the power of mandate are the commissions, contingency fees, or other compensations to which a mandatary may be entitled if allowed to perform his duties. These have been held to be not sufficient to render a mandate irrevocable.

However, when the authority of mandate over a thing is given in part as security for monies advanced or obligations incurred by the mandatary, or is necessary to effectuate such security, then it would be inequitable to allow the principal to revoke the mandate at will. An example of this is the giving of a mandate over property owned by the principal to secure payment of a debt owed by the principal to the mandatary.

We now must determine whether the contract in the suit before us is another example of a mandate coupled with an interest given as security to the mandatary.

DOES THE MANDATE CONTAIN A “POWER COUPLED WITH AN INTEREST”?

As we have already determined, the contract in this case granted to Foreman a power of mandate to represent Montgomery and the other owners in the development and sales of their properties. The contract also provided that Foreman alone bore the expenses of development (Paragraph VI). Foreman was to develop the property in the manner he deemed “most suitable for attracting prospective purchasers and for the greatest enhancement in value to the property” (Paragraph III). The enhancement in value of the property would redound primarily to Foreman’s benefit since Paragraph VI of the Agreement provides as follows:

“The Agent, J. Y. Foreman, realtor, is to pay the respective land owners the sum of Forty and no/100 ($40.00) Dollars per running foot cash on date of sale, for every lot sold or bought by him, the balance of the consideration of the sale or purchase of any lots involved herein being the profit of the said Agent as his consideration hereunder, and is to be his property to the exclusion of anyone.”

Thus, it was contemplated that Foreman would recoup the monies he spent in improving the property from that portion of the price the properties would sell for after development which exceeded $40.00 per running foot.

Under these circumstances, we find that Foreman’s power of mandate was coupled with an interest in the property over which he exercised the power so as to render the mandate essentially irrevocable. The contract between the parties was in the interest of both the principal and the mandatary such that it is in effect a synallagmatic contract. Montgomery and the other owners were to receive the price set in the contract for each unit of property sold, and Foreman was to receive the profits generated by the monies he spent developing the property. The mandate given to Foreman was simply a means of executing the contract whereby both parties could profit from their interests in the property. Thus, the mandate in this case was “coupled with an interest” despite the fact that Foreman, as a technical matter, did not have the power to dispose of the property in his own name.

Having determined that this contract is a mandate coupled with an interest, we now must determine whether such a contract can survive the death of the mandatary.

CAN A MANDATE COUPLED WITH AN INTEREST SURVIVE THE MANDATARY’S DEATH?

LSA-C.C. art. 3027 (quoted above in footnote 2) provides that “the procuration [mandate] expires ... by the death, seclusion, interdiction, or failure of the agent or principal.” The mandate coupled with an interest is a jurisprudentially recognized exception to this rule. Thus far, the Louisiana cases discussing this exception have only dealt with the death or failure of the principal. The jurisprudence is to the effect that a mandate coupled with an interest survives the death or failure of the principal so as not to prejudice the rights acquired by the mandatary in the property subject to his mandate.

We feel that the same rationale applies to instances in which the agent dies. If the revocation of the mandate by the death of the principal would unjustly harm the property interests of the mandatary, so the revocation of the mandate by the death of the mandatary would unjustly harm the property interests of his estate. Therefore, if the contract is otherwise heritable, a mandate coupled with an interest should survive to the personal representative of the mandatary upon the latter’s death. LSA-C.C. art. 1999 provides:

“Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract.”

In the case before us, the parties expressly provided that the contract would be heritable as to all parties (in Paragraph XIII). Also, the non-heritability of the contract is not necessarily implied from its nature since a mandate coupled with an interest has been held to survive the death of the principal.

CONCLUSION

We conclude that for a mandate to be coupled with an interest so as to render it irrevocable, it is not necessary that the mandatary have the power to act in his own name. It is sufficient that the interest which is coupled with the mandate be an interest in the property subject to the mandate significant enough to render the contract of mandate bilateral or reciprocal. A mandate coupled with such an interest survives the death of the principal or, as in this case, of the agent, if there are representatives of the deceased agent who can assume his obligations.

Therefore, we hold that the contract of mandate did not expire with the death of J. Y. Foreman, and we affirm the trial court’s ruling.

AFFIRMED.

APPENDIX

STATE OF LOUISIANA

PARISH OF LAFAYETTE

THIS AGREEMENT, made and entered into this 27th day of March, 1973, by and between:

J. BORING MONTGOMERY, M.D., single and of lawful age and a resident of the Parish of Lafayette, Louisiana,
EFFIE MONTGOMERY, single and of lawful age and a resident of the Parish of Lafayette, Louisiana,
MICHAEL H. MONTGOMERY, married to and residing with Imogene McCallum, a resident of Lafayette Parish, Louisiana, and
IMOGENE McCALLUM MONTGOMERY, married to and residing with Michael H. Montgomery, a resident of Lafayette Parish, Louisiana,

hereinafter sometime referred to as “Owners” and:

J. Y. FOREMAN, married to and residing with Patricia Hammill, a resident of Lafayette Parish, Louisiana, whose permanent mailing address is Post Office Box 3024, Lafayette, Louisiana

hereinafter sometime referred to as “Agent”.

APPEARERS:

J. Y. FOREMAN
J. BORING MONTGOMERY, M.D.
MICHAEL H. MONTGOMERY
IMOGENE McCALLUM MONTGOMERY
EFFIE MONTGOMERY

WITNESSETH:

I.

The Owners declare that they are the sole owners of the following described property situated in the Parish of Lafayette, State of Louisiana:

Certain tracts of land situated in Sections 40 and 70, Township 9, Range 4 East, as shown more fully by the attached plat of survey prepared by Roland W. Laurent, dated November, 1972, and marked “Ne Varietur” for identification herewith.
These parcels of ground being identified as the land contained within the letters “A, B, C, D, E, F, G, H, A;” “I, J, K, L, I;” and “M, N, O, P, Q, R, M;” and outlined in black on said plat of survey.

The Owners declared that they are desirous of developing the above-discribed [sic] property so as to enhance the value thereof, by dividing same into lots, providing for streets and improving certain streets, and that in order to accomplish this purpose to their advantage and in order to market said land, they desire to list all of the above described property exclusively with J. Y. Foreman, a realtor, a real estate agent of the City and Parish of Lafayette, Louisiana, under the terms and conditions hereinafter set forth.

III.

In addition to the other considerations hereinbelow set forth, the Agent obligates himself to handle the hereinabove described property and to offer same for sale in the manner deemed by the Agent as most suitable for attracting prospective purchasers and for the greatest enhancement in value to the property.

The Agent hereby agrees, consents and obligates himself to develop the aforementioned property in the manner best suited for the sale of the property through the utilization of proper engineering to obtain the maximum number of marketable lots. All parties to this agreement agree that the proper development of the property may on occasion require that the lots vary in their dimensions according to the necessity of Street installations and all other conditions requisite in the regulations of the City of Lafayette and the Regional Planning Commission.

The Owners bind and obligate themselves to dedicate to public use all streets and/or utility strips as may be necessary and as shown by plat of survey or plats of survey as may be prepared in carrying out this agreement.

IV.

It is understood and agreed by and between all parties to this agreement that the Agent shall have the authority to cause said land to be surveyed and divided into streets and lots in such a manner and in such sizes as he deems expedient and with the understanding that the Agent shall have the exclusive right and authority to decide in what manner and on what terms, conditions and restrictions the above-described property shall be developed, the Owners hereby agreeing that the Agent shall have the right to decide whether the said property shall be developed for residential or for commercial purposes; provided, however, that such designations comply completely with zoning restrictions in the City of Lafayette and Parish of Lafayette. The Owners agree to sign and execute all papers, instruments and documents necessary to carry into effect the development program decided upon by the Agent, provided that such papers, instruments and documents do not bind and obligate the Owners for any costs or expenses in connection therewith.

V.

It is further agreed that the Agent will bear in its entirety all expenses, including but not exclusively limited to, cost of engineering, street improvements, ground leveling and other expenses necessary to the proper development of the aforementioned property; the Owners are in no way liable for any such expenses or development costs at any time.

VI.

The Agent, J. Y. Foreman, realtor, is to pay the respective land owners the sum of Forty and no/100 ($40.00) Dollars per running foot cash on date of sale, for every lot sold or bought by him, the balance of the consideration of the sale or purchase of any lots involved herein being the profit of the said Agent as his consideration hereunder, and is to be his property to the exclusion of anyone.

The Agent is expressly empowered to buy or sell any lot involved herein for such price and under such terms and conditions as the Agent may deem fit and proper; provided the said Owners are to be paid the price per running foot hereinabove established at the time of the sale of any lot involved herein.

The Agent and Owners may, through mutual consent, enter into credit sale agreements under which terms the Owners receive payment at the above stated price at a future date or through future installments.

The Owners expressly agree to sign and execute any act of sale or conveyance necessary to transfer any portion of the above-described property to the said Agent, or to such purchaser as the said Agent shall produce for the prices mentioned above.

VII.

The Owners specifically declare that in order to expedite the sale of future portions of the property described above in individual lots to contractors for the construction of houses on individual lots they will subordinate their vendors’ lein to a first mortgage of any financial institution or financial institutions, with the understanding they will receive payment for said subordination (whether or not the house constructed on an individual lot is sold), no later than six (6) months from the date of the subordination.

VIII.

The Owners are to pay their respective portions of all taxes due or taxes which may become due on any of the property involved herein until the time in which the property is actually sold by the Agent.

IX.

The said Agent is hereby empowered, authorized and directed to negotiate with the Police Jury for the Parish of Lafayette, State of Louisiana, in all drainage problems affecting the land involved herein and is hereby authorized to have such Police Jury close existing drainage ditches and canals by providing in substitution thereof, such other canals, drains and ditches as may be needed to provide for the adequate and efficient drainage of said property.

It is further understood and agreed by and between all parties hereto that the Agent shall have complete authority to make such improvements as he deems necessary for the proper development of said property and such improvements as may be required to secure Veterans’ Administration, Federal Housing Administration or any other Federally financed loans on homes to be erected on any lots carved out of said property, all of which such improvements, regardless of type or character, shall be at the sole cost and expense of the Agent.

X.

It is further understood and agreed by all parties hereto that the said Owners list the hereinabove described property exclusive with the said Agent for a period of fifteen (15) years from date of this contract with an option on the part of the Agent to renew this agreement under the same terms and conditions described herein for an additional ten (10) years. The Owners hereby acknowledge that the consideration for this listing shall be the payment of the improvements as well as the development cost of said property by the said Agent, in addition to other consideration hereinabove mentioned.

XI.

It is further understood and agreed by and between all parties hereto that the said Agent shall have the complete authority to decide on the building restrictions to be imposed on said property. Such restrictions as may be deemed necessary and advantageous to development by the Agent shall be outlined and included in the Act of Dedication for Subdivisions created from the property hereinabove described.

XII.

The Owners shall tender a legal, valid and merchantible title to the hereinabove described property, in the absence of which this agreement shall be null and void.

XIII.

This agreement shall be binding upon the successors and assigns of all parties. All of the stipulations herein contained and all of the obligations herein assumed shall inure to the benefit of and be binding upon the heirs, successors and assigns of the respective parties hereto.

XIV.

THUS DONE AND SIGNED in triplicate originals in the Parish and State aforesaid, on the day and date first hereinabove mentioned in the presence of the undersigned competent witnesses who signed with Ap-pearers and me, a Notary Public, duly qualified for the Parish of Lafayette, State of Louisiana after due reading of the whole.

(Signatures of parties and witnesses omitted.)

      . See LSA-C.C. art. 2985:
      “A mandate, procuration or letter of attorney is an act by which one person gives power to another to transact for him and in his name, one or several affairs.”

      . The Louisiana Civil Code articles relevant to irrevocable mandates are LSA-C.C. articles 3027 and 3028 as revised by Acts 1882, No. 19. These articles, unchanged since 1882, provide as follows:
      “Art. 3027. Expiration of mandate; irrevocable powers
      Art. 3027. The procuration expires:
      By the revocation of the attorney.
      By the attorney’s renunciation of the power.
      By the change of condition of the principal.
      By the death, seclusion, interdiction or failure of the agent or principal.
      But the powers of attorney by public act or by writings under private signature, or by letter, to transfer on the books of stock corporations, bonds or shares of stock in said corporations, shall be irrevocable, and shall not expire by the death, seclusion, interdiction or failure of the principals, where the said bonds or shares of stock have been previously sold to the persons holding the said powers of attorney, for value received, and said facts are set forth in such powers of attorney.” (As amended by Acts 1882, No. 19)

      “Art. 3028. Revocation by principal
      Art. 3028. Except in the case of irrevocable powers of attorney, as described in the preceding article, the principal may revoke his power of attorney, whenever he thinks proper, and, if necessary, compel the agent to deliver up the written instrument containing it, if it be an act under private signature.” (As amended by Acts 1882, No. 19)

      The Court in Renshaw found that the legislature in the 1882 revision of these articles intended to retain the jurisprudential exceptions to revocable mandates as quoted here despite the express inclusion of only one type of exception in the last paragraph of Article 3027.

      . Cf., Comment 4 La.L.Rev. 601 (May 1942).

      . The court in Zatarain, supra, stated:
      “To constitute a mandate of the class that is coupled with an interest sufficient to make the mandate irrevocable, the interest of the agent in the subject matter of the agency must be such as to give the agent the right to deal with the res in his own name — “procurator in rem suam”. Renshaw v. His Creditors, 40 La.Ann. 37, 3 So. 403; Bryson v. United Gas Public Service Co., La.App., 169 So. 350; Marchand v. Gulf Refining Co. of Louisiana, 187 La. 1002, 175 So. 647. See e.g., Jacquet v. His Creditors, 38 La.Ann. 863.” 138 So.2d 163, 166.

        The actual quote in the Renshaw case, however, is as follows:
      “The article 3027, as it stood before the amendment, was copied from article 2003 of the Code Napoleon, and was a principle equally of the Roman law and of universal jurisprudence. It has been universally held that it did not apply to what, at common law, are known as “powers coupled with an interest,” corresponding to those which, in the terminology of the Roman law, made the mandatary a “procurator in rem suam." Hunt v. Rousmanier, [21 U.S. 174] 8 Wheat. 174 [5 L.Ed. 589]; Story, Ag. §§ 164, 173, 477, 483, 489; Liv.Ag. § 30; 3 Zacharia, p. 134; 18 Duranton, No. 134; Troplong, Man-dat No. 728, 737.”
      3 So. 403, 404. (Emphasis added.)
      The court further said in Renshaw that the amendment to LSA-C.C. art. 3027 did not alter the effect of the article. As noted above the court in Renshaw did hold the mandate was irrevocable on the ground that the contract was a synallagmatic contract.

      . See 4 La.L.Rev. 601 (May 1942).

      . In Union Garment Co. v. Newburger, 124 La. 820, 50 So. 740 (La.1909), the La. Supreme Court found that a power of attorney was not revocable at will since it formed an essential part of a contract.

      . Cf. Hunt v. Rousmanier’s Administrators, supra; Taylor v. Burns, 203 U.S. 120, 51 L.Ed. 116, 27 S.Ct. 40 (U.S. 1906), Louque v. Dejan, supra; and Bryson v. United Gas Public Service Co., supra.

      .See Renshaw v. His Creditors, supra, and Eduardo Fernandez Y Compania v. Longino & Collins, supra.

      . The trial court agreed with our findings by ruling that the contract was bilateral. A contract is bilateral, synallagmatic,, or reciprocal when it creates correlative obligations in the parties. See Levasseur, Précis in Conventional Obligations: A Civil Code Analysis, p. 23 (1980).

      . See, In re Buller's Estates, 192 La. 644, 188 So. 728 (La. 1939); Renshaw v. His Creditors, supra; Succession of Toombs, 167 La. 21, 118 So. 488; Copelle v. Dalton, 4 Mart. (N.S.) 123 (La.1826).

      . This is the result reached in some common law jurisdictions with respect to agencies coupled with an interest. See 3 Am.Jur.2d 460, Verbo “Agency,” § 60.

      . See Succession of Toombs, supra.


author: DOUCET, Judge.

text:
    Charles N. LOFTON, Plaintiff-Appellee, v. LOUISIANA PACIFIC CORPORATION, Defendant-Appellant.
    No. 8614.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Writ Denied March 19, 1982.

      Gaharan & Wilson, Donald R. Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellant.
    Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

In this workmen’s compensation case plaintiff claims he became disabled as a result of his chronic obstructive pulmonary disease. Although plaintiff had previously suffered from emphysema, he claims that the work environment at the Louisiana Pacific Corporation (defendant) plant where he worked caused his condition to become disabling. Plaintiff made claims for compensation benefits, but they were denied. Following trial, plaintiff was awarded compensation benefits, penalties and attorney fees. From that judgment defendant has perfected this suspensive appeal. We affirm.

The plaintiff began work at Louisiana Pacific in February of 1970. Prior thereto plaintiff never had experienced any problems with shortness of breath or pulmonary disease except for lung congestion associated with everyday ailments such as colds. However, six months after beginning his employment with defendant, plaintiff was diagnosed by Dr. Bernard Doughty as having emphysema. Presumably as a result of this newly acquired knowledge plaintiff quit smoking, but not until two years later. His pulmonary disorder not being disabling he continued to work for defendant until his discharge on September 18, 1980, at which time he was a plant manager at defendant’s Urania, Louisiana plant. Appellant admits that plaintiff worked in an environment where there was dust, sawdust, glue fumes, and other potential lung irritants. In September of 1980 plaintiff became unable to perform his job duties without substantial pain, discomfort and disability as a result of chronic obstructive pulmonary disease. Plaintiff demanded workmen’s compensation benefits. His employer denied benefits, contending that plaintiff’s pulmonary emphysema is not an occupational disease within the ambit of Louisiana Workmen’s Compensation law, and defendant maintains this position on appeal.

A trial was had on the matter and the trial judge resolved the conflict adversely to defendant, holding that the employee’s disability, caused by a pulmonary disease, was “the result of long-term exposure at work to foreign matter in the air at the job site maintained by defendant in which plaintiff was employed.” In accordance with his finding of a compensable total and permanent disability, the trial judge awarded plaintiff benefits at the rate of $163.00 per week from September 18, 1980, and further awarded plaintiff unpaid travel and medical expenses, penalties and attorney fees.

Defendant assigns as error the finding of a compensable disability, rejection of its claim for a credit for severance payments, and the award of penalties and attorney fees. Plaintiff has answered the appeal seeking an increase in attorney fees. Both parties submitted exceptional briefs in support of their respective positions.

We find no error in the trial judge’s finding that deleterious substances in the work environment caused the plaintiff’s pre-existing respiratory condition to worsen until he finally became disabled. Both Drs. Doughty and Alexandre Slatkin testified that the work environment was the single most important factor in the activation, aggravation and development of the plaintiff’s pulmonary disease which eventually resulted in total disability. The record discloses that causes of plaintiff’s disease are characteristic of the work environment maintained by defendant and the trier of fact believed plaintiff’s disability attributable to same. Appellant contends that compensability is to be determined by the date upon which any abnormality is first diagnosed. We disagree. It is well established that one is not disabled if he is able to continue work. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967); Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir. 1976); Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 1st Cir. 1978). However, aggravation of a pre-existing physical deficiency is compensable. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981); Allor v. Beldon Corp., 393 So.2d 1233 (La.1981); Spillers v. Cities Service Co., 406 So.2d 269 (La.App. 3rd Cir. 1981) Docket No. 8422. Equally well settled is the jurisprudence of Louisiana that findings of the trial court are not to be disturbed in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We accept the trial court’s finding that the work environment triggered the onset of disabling symptoms. Regardless of which basis we posit our conclusion upon, there is a sufficient relationship between the plaintiff’s employment and his disease that it is fair for the employment enterprise to bear the cost of his disability. Accord: Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976), (respiratory difficulties aggravated by working conditions); Buse v. City of New Orleans, 349 So.2d 397 (La.App. 4th Cir. 1977) (on the' job smoke inhalation changed employee’s lung condition so as to render him disabled for further employment). Appellant also contends that plaintiff’s discharge was not occasioned by disability but instead was due to the plaintiff’s failure to follow the company’s grievance procedure insofar as he submitted complaints about his supervisor directly to the latter’s superiors. However, this contention is belied by the fact that the regional personnel manager listed plaintiff’s illness as cause for discharge on the employee’s application for disability insurance benefits. The trial judge made a factual finding that plaintiff’s discharge was the result of disability and we will not disturb such findings and evaluations of credibility absent manifest error. The record fully supports the trial judge’s conclusion.

Appellant’s contention that it is entitled to credit for severance payments allegedly given in lieu of compensation is without merit. The extinguishment of an obligation in any matter is an affirmative defense and must be pled or it is lost. LSA-C.C.P. Art. 1005.

The trial court’s determination that a refusal to pay benefits is arbitrary, capricious and without probable cause is partially a factual determination which will not be disturbed in the absence of manifest error. Cullivan v. Fish Engineering and Construction Co., 354 So.2d 597 (La.App. 3rd Cir. 1977). We find no manifest error in the award of penalties and attorney fees. The trial judge apparently accepted the position of plaintiff that numerous demands were made for compensation benefits, nonetheless Louisiana Pacific chose to disregard these claims, presumably for economic reasons. Even after requesting plaintiff to submit to a medical examination by an internist, Dr. Slatkin, and receiving the reports of same indicating that the work environment was significantly related to the disability, defendant refused to commence payment of benefits. The very purpose of the penalty provision is to discourage such an attitude of indifference toward the disabled employee.

Plaintiff has answered the appeal seeking an increase in the award of attorney fees. The factors usually taken into account are the degree of skill and ability exercised, the amount of the. claim, the amount recovered for plaintiff, and the amount of time devoted to the case. The trial court did not abuse its discretion in fixing the fee at $3,000.00 considering the circumstances before it and the compensation awarded. Accordingly, an award of $500.00 is adequate compensation for services rendered on appeal.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    Daisy Thibodeaux MECHE, Plaintiff-Appellee, v. Norwood J. MECHE, Defendant-Appellant.
    No. 8616.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Robert Royer, Alexandria, for defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal by the husband from a judgment of the trial court granting the wife a separation on the grounds of abandonment. The judgment further awards the custody of the two minor children to the mother; fixes visitation privileges and awards the wife alimony and child support. The husband’s reconventional demand for separation, on the grounds of cruel treatment or abandonment, was dismissed. We reverse and dismiss that portion of the trial court judgment granting the wife a separation from bed and board. We reverse the portion of the trial court judgment dismissing the husband’s reconventional demand and render judgment granting the husband a separation from bed and board. In other respects the trial court judgment shall be affirmed.

The issues on appeal are (1) Whether the wife met the burden of proving an abandonment by the husband; and (2) whether the husband would be entitled to a separation on either of the grounds alleged in the reconventional demand.

There is little dispute in the facts. Nor-wood Meche was an officer in the United States Air Force stationed at England Air Force Base near Alexandria, Louisiana. Meche and his wife, Daisy, had established their domicile in Pineville, Louisiana, where they owned a home. They were the parents of two minor children.

Prior to September 1979, the marriage of Meche and his wife began to deteriorate. The testimony does not show the reasons for the deterioration; it only reveals the nature of the encounters that resulted from those undisclosed reasons. The marriage deteriorated to the point that in September 1979, Meche began staying on the base during the week and returning to his home on weekends. Meche explained the reason for this arrangement as follows:

“Q. Why are you following this procedure, why weren’t you staying at home.
“A. Well because we were having a lot of problems, excuse me, we were having a lot of problems, and I thought it was affecting the kids and we were not living a life together like two people should.
“Q. Okay...
“A. I thought it was best. ..”

This is the only testimony in the record as to the reasons or basis for Meche living part time at the base. This condition of living at home only a part of the time continued from September 1979, until the filing of this suit by the wife on March 19, 1980.

For about four weeks prior to March 15, 1980, Daisy Meche had been hospitalized. She spent three weeks in the Air Force hospital in San Antonio and then one week in the Air Force hospital in Alexandria. There is no testimony as to the reason for such hospitalization. During the hospitalization Meche stayed at home to care for the children. Daisy’s mother also stayed at the house during the last week of Daisy’s hospitalization.

Daisy returned from the hospital on or about Saturday, March 15,1980. That day, Meche, as he had customarily done, left home to return to the air base. The following Wednesday, March l'9th, Meche was given his orders to go on “TDY” to an air base in New Mexico. He went on that “TDY” and returned to Alexandria on March 22nd.

Upon his return, he found that his wife had filed this suit for separation on March 19th, the day he left on “TDY” to New Mexico. The petition stated that the abandonment by Meche occurred March 15,1980.

Meche called his home and then went by to talk to Daisy. When he arrived he was told by Daisy that he could not stay more than two hours and that henceforth he could not stay at the home unless someone was present in the house with them. Daisy and her mother both testified that Meche was so instructed. Meche made no further attempts to return to the home. In view of what he was told, Meche felt that any further attempt to return would be a vain and useless effort.

These are the basic facts surrounding this episode of this marriage. The question then arises as to whether the wife has proven that she is entitled to a separation on the grounds of abandonment.

The Supreme Court, in the recent case of Von Bechman v. Von Bechman, 386 So.2d 910, 912 (La.1980), set forth the standards of proof to be met in order that a party may be entitled to a separation on the grounds of abandonment. The court stated as follows:

“... Before a separation grounded upon abandonment may be granted, it must be proven that one of the parties withdrew from the marital domicile without lawful cause to do so, and that the withdrawing party has constantly refused to return. C.C. art. 143; Clary v. Clary, 341 So.2d 628 (La.App. 4th Cir. 1977); Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976). For this reason, in order to obtain a separation grounded upon abandonment, a party cannot merely show that the spouse left the common dwelling and then rely upon the spouse’s failure to prove a case grounded upon fault. Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir. 1979).
******
“Civil Code art. 145 provides that abandonment is to be proved as any other fact in a civil suit. ...”

The wife must prove the elements of abandonment as enunciated above. As we examine the record we are of the opinion that the wife has failed to meet this burden of proof. The trial judge gave no reasons for his judgment. He apparently felt that the wife had met the requirements of proof. We cannot agree.

There is no testimony in the record that sheds any light upon the causes for the arguments and deterioration of the marriage which resulted in Meche’s living at home on a part-time basis beginning in September 1979. We only know that arguments ensued and the marital atmosphere of the marriage was in such a state of disrepair that Meche felt, for the welfare of the children, his presence in the home should be limited to weekends. There is no testimony that the arguments or the marriage deterioration emanated from the fault of Meche, or the fault of his wife, or both. His return to the air base on March 15th was a continuation of the practice that had begun six months before. Also, after his return from “TDY” on March 22nd, he was informed by Daisy that he could not live at the home without the presence of other people.

As we examine the testimony it can be seen immediately that Daisy Meche has failed to prove that her husband withdrew from the home without a lawful cause and has constantly refused to return to live with her.

The reconventional demand filed by Meche alleges two grounds for separation; “constructive abandonment” and cruelty.

We have concluded that Meche is clearly entitled to a judgment of separation on the ground of cruelty, thus, it is not necessary that we discuss the jurisprudential doctrine of “constructive abandonment.”

Daisy readily admitted that, after Meche returned from “TDY” on March 22nd, she refused to allow Meche to return to their home for the purpose of living together as man and wife. This course of conduct continued thereafter and up to time of trial. Such conduct amounts to cruel treatment under the provisions of LSA-C.C. art. 138(3). In Burnett v. Burnett, 349 So.2d 488, 490 (La.App. 3rd Cir. 1977), this court was faced with similar facts and held as follows:

“Moreover, we need not rely entirely on the jurisprudential rule of constructive abandonment, since the facts of the present case also constitute grounds for separation under the terms of the Code itself. LSA-C.C. Article 138(3) provides that a separation from bed and board may be claimed, ‘on account of ... excesses, cruel treatment or outrages ... [if] such ill-treatment is of such a nature as to render their living together insupportable.’ Clearly, when one spouse orders the other to leave the matrimonial domicile without just cause, removes his personal belongings and, after inviting him back, again orders him to leave, the rejected spouse should be entitled to a separation from bed and board on grounds of cruel treatment. Such treatment renders the spouses ‘living together insupportable’, within the meaning of LSA-C.C. Article 138(3)

The judgment of the trial court, dismissing Meche’s reconventional demand, shall be reversed. Judgment shall be rendered granting Meche a separation from Daisy.

For the reasons assigned that portion of the trial court judgment granting Daisy Meche a separation from bed and board is reversed, set aside and dismissed. The portion of the judgment dismissing the recon-ventional demand of Norwood Meche is reversed and set aside. It is ordered that judgment be rendered, in favor of Norwood Meche and against Daisy Meche, decreeing a separation from bed and board between the parties and dissolving the community of acquets and gains existing between them. In all other respects the judgment is affirmed.

Daisy Meche and Norwood Meche shall each pay one-half of the costs in both the trial court and this appeal.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.


text:
    Eddie A. WILSON, Plaintiff-Appellant, v. MFA SECURITY SERVICE COMPANY, Defendant-Appellee.
    No. 8619.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Guillory & McCall, William T. McCall, Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Frank M. Walker, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, DOUCET, and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is an action of nullity instituted by plaintiff-appellant Eddie A. Wilson, seeking to void a default judgment (on a promissory note) obtained against him by defendant-appellee MFA Security Service Company (MFA). From a judgment of dismissal by the district court, plaintiff has appealed. We affirm.

Plaintiff contends that the trial court erred in finding that he did not bear his burden of proof establishing that he was not served with process as required by law, and in holding that he was not entitled to judgment declaring the default judgment in the original proceedings to be a nullity.

On October 10,1980, a suit was instituted by MFA against Eddie A. Wilson and his former wife, Rebecca B. Wilson, to recover on a promissory note. The original petition was entitled “MFA Security Service Company v. Eddie A. Wilson and Rebecca B. Wilson,” and was filed in the office of the Clerk of Court in and for Calcasieu Parish, Louisiana, bearing docket number 805428. A citation was prepared to be served on the defendants in that suit through the Calca-sieu Parish Sheriff’s Office and on October 14, 1980, Calcasieu Parish Sheriff’s Deputy T. H. DeLaureal made a return on the citation bearing his signature which recited:

“Received the within Citation, together with a certified copy thereof and a certified copy of the accompanying petition, on the 13th day of October, 1980 and on the 14th day of October, 1980, I served said copies on the within named defendant, E. Wilson, by delivering the same to him in person, in the Parish of Calcasieu, about 0 miles distant from the Court House of said Parish.”

The citation and accompanying petition for Rebecca B. Wilson were returned to the record with the citation return indicating that Deputy DeLaureal was unable to locate her. No answer or other pleading were filed in the record of suit number 805428 by Eddie Wilson, and on November 21,1980, a default judgment was confirmed against him and in favor of MFA in the amount of $7,609.53, plus legal interest and attorney’s fees.

Subsequently defendant was summoned to appear in court on February 9, 1981, to be examined as a judgment debtor. This action of nullity followed on February 12, 1981, in which plaintiff alleged that he was not properly served with process as required by law. The trial judge found that plaintiff failed in his evidence to overcome the strong jurisprudential presumption that the Sheriff’s recitation on the return of citation is correct.

The law applicable to the burden of proving lack of service of process was stated in Roper v. Dailey, 393 So.2d 85 (La.1980), as follows:

“A return of citation is prima facie evidence of service. La.C.C.P. Arts. 324, 1292; La.R.S. 13:3471(5); Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir. 1976) writ denied [La.], 338 So.2d 288; Martinez v. Silverman, 288 So.2d 88 (La.App. 4th Cir. 1974); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir. 1941). The return of the officer on the citation is given great weight and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); League Central Credit Union v. Gagliano, 336 So.2d 931 (La.App. 4th Cir. 1976); Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2nd Cir. 1972). A return of citation cannot be impeached by the uncorroborated testimony of a single witness, Canterberry v. Slade Brothers, supra, League Central Credit Union v. Gagliano, supra, Guedry Finance Company v. Breland, 192 So.2d 884 (La.App. 4th Cir. 1966), and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Canterberry v. Slade Brothers, supra; Hood Motor Company, Inc. v. Lawrence, supra; Guedry Finance Company v. Breland, supra; Smith v. Crescent Chevrolet Co., supra; Martinez v. Silverman, supra; Sims v. First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933); Logwood v. Logwood, 185 La. 1, 168 So. 310 (1936).
Furthermore, the rule has arisen in the jurisprudence that testimony of the serving officer is inadmissible if it would vary, contradict, and break down his official return of a citation, although the officer may testify to incidental and collateral facts in support of his return and in order to show the validity of his acts. Adler v. Board of Levee Commissioners, 168 La. 877, 123 So. 605 (1929); Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54 (1903); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (1st Cir. 1941).”

Plaintiff, his roommate, John Gelt, and the serving deputy, Deputy DeLaureal, were the only witnesses to testify at trial. Plaintiff testified that he had spoken with Deputy DeLaureal by phone and was informed that MFA had filed suit, but he was never personally served with a copy of the petition for that suit. Plaintiff alleges that he and Deputy DeLaureal discussed the possibility of arranging a time and place where service could be perfected, but no agreement was reached. According to plaintiff, a few days after speaking with Deputy DeLaureal over the phone he discovered the yellow true copy of the citation in his mailbox, but there was no petition attached.

Deputy DeLaureal testified that he personally served plaintiff at his residence by actually handing the service and citation to him. Deputy DeLaureal further testified that he always perfected personal service to a party at their residence by personally serving the documents, and only after so doing does he indicate such in his recitation on the return of citation.

Plaintiff’s roommate’s testimony was not focused on the matter of service of the petition in the first suit. Mr. Gelt’s testimony- relates solely to the service of the motion to examine judgment debtor, the context and relevancy of which will be further discussed below.

Plaintiff contends that the facts presented here are not unlike those contained in Roper, supra, and therefore, the trial court erred in finding that he failed to rebut the presumption of validity of service. We do not agree.

In Roper, as here, the sole issue was whether or not the plaintiff in that case adequately rebutted the presumption of validity of the officer’s recitation on the return of citation. The trial judge found, and we think correctly, that Roper is distinguishable on its facts. In Roper the serving officer attempted to serve Roper at his place of business. Roper denied personal service, and the serving officer admitted that frequently, when he was serving a party at his place of business, he simply left the citation with a secretary or receptionist. The record in Roper clearly showed that the serving officer had no idea as to how to properly effect the type of personal service which he had attempted to effect on that defendant. The officer in Roper had purportedly served Roper at his place of business, and the record in that case showed that the officer had demonstrated a prior history of improperly serving other defendants at their place of business. Our Supreme Court held that under those facts the serving officer’s testimony indicated that if he followed his frequent method of “personal” service at a party’s place of business, he very well may not have served Roper personally. In so finding the Supreme Court held that under those circumstances the presumption of correctness of the officer’s recitation on the return of citation had been sufficiently rebutted.

This is not the situation here. The service return herein shows that plaintiff was personally served at his residence at 1125 Illinois Street in Lake Charles, Louisiana. Plaintiff clearly admitted that this was the proper address for his residence at that time. Deputy DeLaureal testified that his understanding of the proper method to serve a person at his residence was to actually hand the service and citation to the person to be served. He testified that he spent ninety percent of his work time serving papers and estimated that he served from 125 to 150 papers per week. The deputy said that he had been so employed for approximately ten months, and during this entire period, the only time he had ever attempted to serve someone personally at their residence without actually handing the papers to that person was on one isolated occasion when an attorney specifically requested that he place the served documents in a mailbox.

It is true that the deputy’s trial testimony showed that he, like the officer in Roper, did not have a proper understanding of how to serve a defendant at his place of business, since the Deputy thought that such service could be effected by handing the papers to a secretary or receptionist. However, Deputy DeLaureal did not try to serve plaintiff at his place of business, he served him at his residence. There is no evidence that this deputy had evidenced a history of improper residential service. In fact, the only evidence introduced to rebut the Deputy’s testimony relative to the method of service in the first suit was the testimony of the plaintiff, which by itself cannot be used to impeach the deputy’s return of citation. Canterberry v. Slade Brothers, supra; Hood Motor Company v. Lawrence, supra. Under these facts if Deputy DeLaureal followed his ordinary practice of making personal service at a party’s residence, which he claims he did, he would have properly effected personal service on the plaintiff. The fact that this deputy might not have known how to effect service at a defendant’s place of business is irrelevant since the service at issue here involves residential service.

The Roper decision stands for the proposition that if the process server demonstrates a prior history of improperly serving defendants by the method of which that defendant contends he was improperly served, then that will be considered as evidence in support of defendant’s contention that he was not served. Those facts are simply not present in this case since plaintiff was served at his residence. The process server clearly demonstrated that he knew how to properly effect personal service at a party’s residence, and there was no history of improper residential service.

John Gelt’s (plaintiff’s roommate) testimony was introduced in an effort to rebut Deputy DeLaureal’s testimony concerning the Deputy’s methods of properly effecting residential personal service. Mr. Gelt testified that the motion to examine judgment debtor was served on plaintiff by Deputy DeLaureal by leaving it in plaintiff’s mailbox. The trial judge, however, as the sole determiner of credibility, obviously gave greater weight to the testimony of the deputy who testified to the contrary. Furthermore, even if it were shown that service was improper for this motion, it does not necessarily follow that service of the petition in the first suit was accomplished in a like manner.

The plaintiff in a nullity action has the burden of proving his case by a preponderance of evidence. There is a preponderance of evidence, when the evidence, taken as a whole, shows that the facts sought to be proved are more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971); Roper v. Dailey, supra. We have reviewed the record and find no manifest error on the part of the trial judge in concluding that plaintiff failed to prove by a preponderance of evidence that he was not properly served and cited with the petition in suit number 805428.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs at trial and on appeal are to be taxed against plaintiff-appellant, Eddie A. Wilson.

AFFIRMED.