author: BIENVENU, Judge. STOKER, Judge,

text:
    Succession of Hugh J. BRUMFIELD.
    No. 8300.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Peter A. Ciambotti and E. R. Robinson, Lake Charles, for plaintiff-appellant.
    Stockwell and Associates, Stephen C. Pol-ito, Hunt, Godwin, Painter & Roddy, David A. Painter, Lake Charles, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, presided as Judge Ad Hoc in this decision.

   BIENVENU, Judge.

John F. Brumfield, Jr. who will be referred to hereinafter as “plaintiff”, instituted proceedings to set aside a Judgment of Possession in the captioned succession rendered on January 27,1977, and an Amended Judgment of Possession rendered on November 10, 1977, and to have the trial court recognized and probate a will of the decedent or a copy thereof, dated May 20, 1972, under the terms of which plaintiff would be the sole legatee.

Named as defendants in the proceedings were Ruth Brumfield Duguay, in her own right as a petitioner in the petition for possession complained of, and as a legatee of Victoria Sarah Brumfield, also a petitioner in the said petition for possession but deceased at the time of the trial; and Helen Duguay Reeves, Dorothy Duguay Fields and Marion Duguay Kline, as sole heirs of Frank Duguay, Ruth’s deceased husband who was also a legatee of Victoria Sarah Brumfield. John L. Fields, Jr., Judith Ann Fields Burris and Donna Sue Fields Heath were substituted as parties defendant for Dorothy Duguay Fields, their mother who died on October 16, 1978, some two months after the suit was filed. All of said six present defendants, who will be referred to hereinafter as “defendants”, would be intestate heirs of Hugh J. Brumfield, the decedent, along with the plaintiff and his sister, who is not a party herein. The State of Louisiana was additionally named as a party defendant, but waived its presence at the trial and is not concerned with this appeal.

The trial court rendered judgment in favor of the plaintiff setting aside the Judgment of Possession, the Amended Judgment of Possession, the Inheritance Tax Return and the Original and Amended Detailed Descriptive List. Plaintiff does not appeal this portion of the judgment. The trial court further rendered judgment in favor of defendants and against plaintiff, rejecting plaintiff’s demand to probate a copy of the will of the decedent dated May 20, 1972, and dismissed plaintiff’s suit insofar as it seeks to probate a copy of said will. Plaintiff appeals from this portion of the judgment.

Hugh J. Brumfield, died on December 29, 1976. On May 20, 1972, decedent executed a valid statutory will before Emmett C. Sole, Notary Public. The original of this will was stored at the request and with the authority of the decedent, in the safety deposit box of the firm of Stock well, Sie-vert, Viccellio, Clements and Shaddock, a Lake Charles law firm. Only one original will was executed by the decedent. This original will remained in the law firm’s safety deposit box from May 20, 1972, until September 26, 1975, at which time at the request of the decedent, it was removed from the safety deposit box and delivered to the decedent by Mr. Sole in the presence of witnesses. The decedent received the original will and executed a receipt for it.

The decedent had no telephone at his residence and was an elderly gentleman who had difficulty getting around. The decedent often requested his niece, Helen Reeves, a defendant in these proceedings, to make telephone calls for him and perform other tasks. Sometime prior to September 26,1975, Mr. Sole received a telephone communication from Helen Reeves the substance of which is in dispute but not singularly important in deciding the merits of the case. After meeting with the decedent as a result of this communication, Mr. Sole drafted a proposed new will allegedly according to the wishes of the decedent. Since the decedent had no means of transportation to Mr. Sole’s office, at approximately noon on September 26, 1975, Mr. Sole went to the decedent’s house along with two witnesses, Susan Fruge and Elizabeth Chambers, for the purpose of executing the new will.

The proposed will was read to the decedent in the presence of the witnesses and the decedent refused to sign same. The decedent requested that Mr. Sole give him his original will of May 20, 1972 and Mr. Sole did so, receiving a receipt for same. Mr. Sole returned to his office with the proposed will unexecuted and received no additional contact from the decedent concerning the 1972 nor the proposed will.

The sworn statement of Elizabeth Chambers entered into evidence at the trial corroborates and verifies the testimony of Mr. Sole concerning the refusal of the decedent to sign the proposed will, and receipt of the original will by the decedent.

The deposition of Helen Reeves was offered into evidence by the defendants in lieu of her direct testimony and entered into evidence by the Court over the objection of plaintiff. Plaintiff called Mrs. Reeves on cross-examination under protest and she testified that she visited the decedent at his home on September 26, 1975, around 8:30 or 4:00 p.m. Upon entering the decedent’s room he handed her the original 1972 will and requested that she read the will out loud. Following the completion of the reading of the 1972 will, she handed it back to the decedent, and the decedent tore and destroyed his will with his own hands.

The Court found as fact that the decedent destroyed the original will dated May 20, 1972, in the presence of Helen Reeves in his home on the afternoon of September 26, 1975. The Court rendered Judgment rejecting plaintiff’s claim and dismissing plaintiff’s suit, insofar as it sought to probate the destroyed will. The trial court also invalidated the earlier succession proceedings, premised on decedent’s dying intestate, finding that plaintiff was not a party to those proceedings and at the time knew nothing about them, although he was named as being one of the petitioners for possession therein.

Plaintiff brings this appeal presenting the following issues for review.

(1) Did the trial court err by finding that the decedent intentionally revoked his will dated May 20, 1972, by destruction of said will on September 26, 1975?
(2) Did the trial court err by admitting into evidence the deposition of Helen Reeves, over the objection of plaintiff’s counsel while the defendant Helen Reeves was present in Court, sitting with her attorney and no basis having been shown for the admissa-bility of the deposition pursuant to LSA-C.C.P. Art. 1450?
(3) Did the trial court err in failing to meet its duty and responsibility to observe the credibility of a party (Helen Reeves) on direct examination, particularly when the credibility of that witness was crucial to the outcome of the case, she being the only witness to the alleged destruction of the will in question?
(4) Did the trial court err in admitting the deposition of Helen Reeves as direct testimony in the defendant’s case in chief, the deposition not being the best evidence of the alleged destruction of Hugh Brumfield’s will and is not admissible absent a predicate of unavailability under the rules of evidence?

The first issue to be addressed is whether or not the May 20, 1972, testament was revoked by the testator on September 26, 1975, when the decedent allegedly tore and destroyed his will with his own hands in the presence of Helen Reeves. The Civil Code under articles 1691, et seq., provides two methods of revoking testaments. The first method is a revocation by written instrument clothed with the formalities of a last will and testament; and the second by a donation inter vivos, or by a sale, in whole or in part, of the thing bequeathed. Succession of Hill, 47 La.Ann. 329, 16 So. 819 (1895). The courts have recognized one additional method for revocation of testaments, that is the destruction of the will by the testator himself, with the courts reasoning that the actual defacement, obliteration and destruction of the will leaves no will in existence. Rivette v. Moreau, 341 So.2d 459 (La.App. 3rd Cir. 1976); Smith v. Shaw, 221 La. 896, 60 So.2d 865 (1952); Succession of Hill, supra. In Smith the Supreme Court held that a will was destroyed by mutilation when the document was torn into pieces and discarded by the decedent’s attorney at the decedent’s request; but there are certainly other ways to destroy a will, "uch as by the burning of the will by the testator. However, merely placing the testament among waste paper when the testator had it in his power to destroy the testament but did not do so, does not result in a revocation despite the fact that the testator desired that it be revoked. Succession of Hill, supra. It is this latter method of revocation that we are concerned with in the instant matter, and if the decedent’s will was in fact torn up as testified to by Helen Reeves, then that was a sufficient destruction to constitute revocation under the jurisprudence.

The jurisprudence provides a legal presumption that in the event a testament cannot be located after the decease of the testator that it was revoked by the testator. Succession of Nunley, 224 La. 251, 69 So.2d 33 (1953). The Court in Nunley stated:

“The fact that an olographic will, shown to have been in the possession of or accessible to the deceased, cannot be found at this death, gives rise to a legal presumption of revocation by destruction; however, this presumption is a rebuttable one, according to accepted principles adhered to not only in this State and in Prance, but under the common law as well. See Fuentes v. Gaines, 25 La.Ann. 85; cf. Succession of O’Brien, 168 La. 303, 121 So. 874; Ripert et boulanger’s Traite’ elementaire de droit civil de Planioi, op. cit. supra, III, nos 2087, 2088, p. 665; annotation in 34 A.L.R. at page 1304 et seq.; 3 A.L.R.2d 949, at page 952 et seq. The onus of rebutting this presumption is cast upon those seeking to establish the will, by clear proof (1) that the testator made a valid will, (2) proof of the contents or substance of the will, and (3) of the fact that the will, though it could not be found at the testator’s death after diligent search, was never revoked by him.”

The presumption provided for by Nunley is a weak one, (Jones v. Mason, 234 La. 116, 99 So.2d 46 (1953), but nonetheless the burden is upon the proponent of the missing testament to prove that it was not in fact revoked by the testator prior to his decease. If he is successful, then he is entitled to proceed to probate of the missing will.

In the case presently before this court the original of the will executed by the deceased on May 20, 1972, was not found, and as a result thereof, plaintiff attempted at the trial level to probate a copy of said will by rebutting the presumption of revocation. There is no question as to plaintiff meeting the first two requirements of the Nunley case: proof that the testator made a valid will and the contents thereof, as he was able to place photocopy of the May 20, 1972 will into evidence. The third requirement is at the heart of this appeal; that is, proof that the decedent testator never revoked his testament. The evidence adduced at trial as to the revocation of the testament by the deceased consists principally of the testimony of Helen Reeves both in her deposition entered into evidence by the defendants and her testimony on cross-examination by plaintiff’s attorney. Helen Reeves testified that she observed the testator, after she read the will to him, take the will in his own hands and tear it up into pieces and place it on the dresser next to his bed. Plaintiff presented circumstantial evidence (the only kind he could) to the effect that the decedent did not revoke the will, there was also circumstantial evidence to the contrary, but the only direct evidence of revocation was Mrs. Reeves’ testimony.

The trial court found that the plaintiff failed in his burden of overcoming the presumption that the will was not revoked, and absent a finding of manifest error on the part of the trial court, his decision will not be overturned on review. Regions v. Regions, 381 So.2d 920 (La.App. 3rd Cir. 1980).

The decision of the trial court in large part rested on the testimony of Helen Reeves. Her testimony consisted of cross-examination by the plaintiff, under protest, and a copy of her deposition, entered into evidence at the trial in lieu of her direct testimony and over the strenuous objection of plaintiff based on the fact that she was present in court, sitting with her attorney and able to testify. Counsel further argued that the deposition was taken at his instance for discovery purposes, and that he was the only attorney who asked questions of the deponent; yet the defendants’ attorneys, some of whom were not even present at the taking of the deposition, wished to admit it into evidence as their entire case in chief. In our view, the testimony of Mrs. Reeves vitally affects the outcome of this litigation. If we consider her testimony in evaluating the evidence, we see a reasonable basis for the trial judge’s finding that the testament was destroyed, deferring to his role with regard to the facts. If we conclude, on the other hand, that her testimony was improperly admitted and should not be considered as evidence, then we cannot see any reasonable basis for a finding that the testament was destroyed, and we then must hold that the trial judge was clearly wrong in so finding. A review of the trial judge’s decision on the question of admissability of Mrs. Reeves’ deposition and consequent forcing of plaintiff’s counsel to call her on cross-examination, becomes critical.

The Code of Civil Procedure in article 1450 provides three situations in which depositions may be used in evidence:

“(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
“(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.
“(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (a) that the witness is dead; or (b) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (c) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (e) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

A need must be shown pursuant to the Code of Civil Procedure in order for the deposition to be properly admitted into evidence, and a basis for admitting the deposition into evidence pursuant to the article must be shown. Bankston v. Cooper, 371 So.2d 654 (La.App. 4th Cir. 1979).

LSA-C.C.P. art. 1450(1) is inapplicable because the deposition was not introduced to impeach trial testimony. Neither is the deposition properly entered into evidence under Subsection (2) because it was not sought to be introduced by an adverse party. None of the circumstances described in Subsection (3) (a) through (e) were shown to exist so as to make that portion of the article applicable. Accordingly, it was error for the trial court to allow Mrs. Reeves’ deposition into evidence.

Even though the trial court committed error in receiving the deposition into evidence, we find that the error was inconsequential and did not affect the outcome below. Mrs. Reeves testified at the trial on cross-examination by plaintiff’s attorney and the court was able to observe her demeanor and answers as she testified, and thus judge her credibility; he even commented accordingly in his reasons for judgment. Her testimony in court was consistent with her testimony in the deposition, was clear, plausible and convincing. In reading the colloquy in the transcript surrounding the introduction of the deposition, we at first suspected a fear on the part of defendants’ counsel to have Mrs. Reeves testify in open court, such as her being too ill or infirm or worried or frightened; but upon reading her deposition and testimony on cross-examination it soon became apparent that the only motive for offering the deposition was simply that stated by counsel: an interest in saving time at the conclusion of the court day. There is no doubt in our minds that had the trial judge correctly sustained plaintiff’s objection, that defendants would simply have called her on direct examination and the result would have been the same. Hence, the error did not affect the merits. Naquin v. Maryland Casualty Company, et al, 311 So.2d 48 (La. App. 4th Cir. 1975).

A careful review of the record gives us no reason to quarrel with the trial judge’s conclusion that Mrs. Reeves was truthful. She did not have a great deal to gain by a judgment that the decedent died intestate. Apparently her vision of the value of decedent’s estate is considerably less than plaintiff’s. It was through her efforts, whichever way it happened, that her sisters were included in the proposed new will, rather then she alone; which indicates unselfishness. She did not even choose to be present when the proposed new will was brought to the decedent for execution, so that she might exert influence in inducing him to execute it; which does not indicate that she was so interested in what he did with his estate. Why decedent chose not to execute the proposed new will probably never will be known, but it is understandable why he would want to revoke his will and consider another one. After all, it is a fact that plaintiff rarely saw decedent in the last years of his life, and had not seen him for IV2 to 2 years prior to his death. Mrs. Reeves, on the other hand, saw him frequently in his last years, cared for him, tended to his needs. She gives the impression of being very unselfish; being content to have a friend of decedent’s handle his cash money by placing it in a savings account for him, rather than attempt to gain control of it herself. The evidence is to the effect that Mrs. Reeves did not concern herself with the succession and its effects after the death of decedent, nor covet any of it. She had only two items in her possession after his death, and the evidence is that those in charge had them delivered to her home. There is no evidence to the contrary. There is other evidence lending support to a finding that Mrs. Reeves is credible; the foregoing is simply to illustrate a reasonable basis for the trial judge’s conclusions.

We are not sayihg that reasonable minds could not come to opposite conclusions on the question of revocation of the testament; we simply say that the lower court’s conclusion was not unreasonable and was supported by the evidence. Hence, there is no reversible error.

For the reasons assigned, the judgment of the trial court is affirmed at plaintiff’s cost.

AFFIRMED.

STOKER, J., concurs and assigns reasons.

CUTRER, J., concurs for reasons assigned by STOKER, J.

STOKER, Judge,

concurring.

I concur in the result reached in this case. The principal opinion correctly holds that the trial court committed error in admitting into evidence the deposition of Helen Du-guay Reeves. We cannot justify this admission as there is no authority for it. Rather than dismissing the issue of the trial court’s error as inconsequential, as the principal opinion does, I would prefer to base affirmance on other grounds. In this case it is not necessary for us to consider the effect of the error in admitting the deposition of Mrs. Reeves. Any error was rendered moot when the plaintiff’s counsel took Mrs. Reeves on cross examination, questioned her extensively and established all relevant points which defendants had sought to establish through the inadmissa-ble deposition.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    George J. CHAMPAGNE, Jr., et al., Plaintiffs-Appellees, v. Andrew BROUSSARD, et ux., Defendants-Appellants.
    No. 8310.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Jo Ann Nixon, Lafayette, for defendants-appellants.
    Champagne, Colomb & Brumbaugh, George J. Champagne, Jr., Lafayette, for plaintiffs-appellees.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

Andrew Broussard and his wife, Mabel Solomon Broussard (appellants), appeal from a trial court judgment dismissing their possessory action and ordering them to vacate certain property.

George J. Champagne, Jr. and his wife, Yvonne Anderson; Vance J. Theriot and his wife, Gloria Royer; and Robert R. Laville, Sr. and his wife, Lois Theriot (appellees) instituted an eviction action naming appellants as defendants. Appellees claimed to have purchased certain property at public auction and that appellants refused to vacate the property.

Appellants then instituted a possessory action claiming that their possession of the property, from which their eviction was sought, had been disturbed by the institution of the eviction action and they sought to be maintained in possession.

The trial court ordered the two actions consolidated for trial on the merits and then rendered judgment in favor of appellees in the eviction action and against appellants (plaintiffs in the possessory action).

Appellants appeal from that judgment and present two issues:

(1) Whether appellees’ proper remedy for gaining possession of the land, on which appellants are presently living, is an eviction action;
(2) Whether appellants are in possession of that property.

FACTS

These two actions concern a tract of land containing some 47.5 arpents located in rural St. Martin Parish. Arsenne Solomon, Mabel Solomon Broussard’s grandmother, acquired this land in November, 1925. The land is described in Arsenne Solomon’s credit deed as:

“that certain tract of land situated in the fourth ward of the Parish of St. Martin, State of Louisiana, with all improvements thereon, containing forty-seven and one-half superficial arpents and bounded as follows to wit: North by A. F. Domen-geaux, South by Cesaire Melancon, East by Public road, and West by Lucer Gui-dry.

We will refer to this land as the 47.5 arpent tract of land throughout the rest of this opinion.

Apparently, Arsenne Solomon donated this property to her eight children in September, 1936, giving each an equal undivided share. This transfer is termed a sale in some of the pleadings filed by the parties and a donation in others. The document evidencing this transfer was never introduced into evidence in the court below.

George J. Champagne, Jr. acquired an undivided Vs ownership interest in the property from two of Arsenne Solomon’s grandchildren, who had inherited it from their father. Champagne brought an action to partition the land on February 19,1971, and the trial court rendered judgment on July 2, 1971, ordering a partition by licitation. Champagne then sold his interest in the property to Vance J. Theriot before a public sale was held. A sheriff’s sale was held on February 16, 1977, and the property was sold to Vance J. Theriot, George J. Champagne, Jr. and Robert R. Laville, Sr. for the sum of $63,000.00.

An action to annul the partition judgment, set aside the sheriff’s sale, and recover damages was instituted on August 5, 1977, by Mabel Solomon Broussard, Louise Arsenne Solomon, Amelia Solomon Barber, Joseph Barber and Mary Solomon Dixon. Essentially, these petitioners argued that the partition judgment was an absolute nullity because they had not received service of process in the partition action and some of them had not been made defendants to that action. Further, they alleged that the partition judgment had been obtained by means of fraud and ill practices. The trial court dismissed petitioners’ action, after trial on the merits.

The trial court found that no fraud or ill practices had been used in obtaining the partition judgment and that petitioners had notice that the partition proceedings were taking place, together with the possible consequences thereof. The trial court also found that the petitioners had acquiesced in the partition judgment and, therefore, were unable to demand that the judgment be annulled for vices of form, i. e., lack of service of process. We affirmed the trial court’s judgment in an unpublished opinion.

The Louisiana Supreme Court, in Broussard v. Champagne, 376 So.2d 957 (La.1979), denied petitioners’ application for writs in that proceeding with the following order:

“Writ denied. On the facts found by the court of appeal, we cannot say the result is incorrect. However, our denial is expressly without prejudice to any rights Mabel Solomon Broussard and Andrew Broussard may have to the property they acquired by deed, they not having been joined in the partition suit on the basis of their capacity as purchasers and they not having been named as defendants. La.C.C. Art. 2286.
SUMMERS, C. J. would deny the writ without qualification.”

Appellees instituted an eviction action on March 28, 1980, against appellants based on the partition judgment, and the conveyance of the property to them at the sheriff’s sale, together with the allegation that appellants refused to vacate the property.

Appellants instituted a possessory action on May 16, 1980, alleging that appellees’ eviction action constituted a disturbance of their peaceable possession and enjoyment of a certain portion of the 47.5 arpent tract of land. They further alleged that they had acquired a “right to occupy” the property by the acquisitive prescriptions of ten years and thirty years.

The trial court granted appellees’ motion to consolidate the two actions for trial on the merits, which was held on October 14, 1980. The trial court rendered judgment in favor of appellees and ordered appellants to vacate the property. The trial court dismissed appellants’ possessory action and overruled their exception of prescription. Appellants were granted a suspensive appeal from the trial court’s judgment. Ap-pellees have answered the appeal and asked that the trial court’s judgment be amended to order the issuance of a writ of possession, commanding the Sheriff of St. Martin Parish to eject appellants from the property.

IS AN EVICTION ACTION APPEL-LEES’ PROPER REMEDY?

Appellees brought this eviction action against appellants in an attempt to expel appellants from a portion of the 47.5 arpent tract of land on which they were living and to have themselves (appellees) placed in possession thereof. The evidence shows that appellants constructed a house on the land some forty years ago and have lived in it ever since. They have also maintained some of the land around their home as their own private yard.

Appellants contend that an eviction action is an improper remedy for use by ap-pellees in their attempt to gain possession of this portion of the 47.5 arpent tract of land. We agree.

Eviction is a proper remedy for use by a lessor, who wishes to obtain possession of the premises, when the lessee’s right of occupancy has ceased. LSA-C.C.P. Article 4701. The evidence shows that a lessor-lessee relationship has never existed between appellants and appellees.

Eviction is also a proper remedy for use by an owner of immovable property, who wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased. LSA-C.C.P. Article 4702 provides the basis for this remedy and was designed to give an owner of immovable property summary means to evict an occupant without fulfilling the burden and delay required in a petitory action. Rankin v. Garland, 392 So.2d 182 (La.App. 2 Cir. 1980); Skannal v. Jones, 384 So.2d 494 (La.App. 2 Cir. 1980); Todt v. Santani, 167 So.2d 475 (La.App. 4 Cir. 1964).

LSA-C.C.P. Article 4705 expressly states that the eviction procedure shall not be construed to conflict with the Louisiana Code of Civil Procedure articles relating to actions to determine ownership or possession. Rankin v. Garland, supra. Summary eviction procedure is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Foreman v. Luquette, 344 So.2d 1111 (La. App. 3 Cir. 1977); Clements v. Billiot, 52 So.2d 268 (La.App. 1 Cir. 1951); Ryan v. Barthelmy, 32 So.2d 467 (La.App. Orl.Cir. 1947).

The crucial issue is whether appellants are occupants within the meaning of LSA-C.C.P. Article 4704, which provides, in pertinent part:

“Occupant” includes a sharecropper; half hand; day laborer; former owner; and any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner;”

Appellants brought a possessory action in which they alleged that they are in possession of a certain portion of the 47.5 arpent tract of land. This possessory action was brought in response to appellees’ attempt to evict them. The trial court found that,

“There was never any possession of any part of the 47.5 arpents of the quality that would be required for the commencement of the running of prescription. . .”.

Since the possession required for the commencement of prescription is the same as that required for the possessory action, the trial court dismissed appellants’ possessory action. See Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La. 1975).

In our opinion, the record establishes that the finding of the trial court that appellants never had possession of any portion of the 47.5 arpent tract of land is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

LSA-C.C Article 3426 defines possession as:

“Art. 3426. Possession, definition
Art. 3426. Possession is the detention or enjoyment of a thing, which we hold or exercise by ourselves, or by another who keeps or exercises it in our name.”

LSA-C.C. Article 3436 provides:

“Art. 3436. Essentials of possession
Art. 3436. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.”

There can be no doubt that appellants have the corporeal possession of the house, in which they are presently living, and the land upon which the house was constructed. The evidence also indicates that appellants have maintained a certain amount of land surrounding their home, as a private yard, and that those who have cultivated land in the area have respected and treated it as such. Thus, appellants also have the corporeal possession of this land.

Natural possession, which may exist without title, is the corporeal detention of a thing, as by occupying a house or cultivating ground. See LSA-C.C. Articles 3428 and 3430; Norton v. Addie, 337 So.2d 432 (La.1976). To acquire the possession of property one must combine the intention of possessing as owner with the corporeal detention of the thing. Norton v. Addie, supra.

Appellants testified that they constructed their home on the 47.5 arpent tract of land with the permission of the owners thereof. The owners at that time were Louis Solomon, the father of appellant, Mabel Solomon Broussard, and the seven other children of Arsenne Solomon, who each owned an undivided one-eighth ownership interest in the land. Appellants’ testimony indicates that they commenced their possession of the land, on which their home was constructed, as “precarious possessors”. See LSA-C.C. Article 3556(25).

LSA-C.C. Article 3441 provides:

“Art. 3441. Possession for another; precarious possessor’s inability to acquire legal possession
Art. 3441. Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”

LSA-C.C. Article 3446 provides:

“Art. 3446. Mere change of intention of precarious possessor
Art. 3446. Even if a person who commenced his possession of an estate for another, should entertain the intention of no longer holding for that other, but for himself, yet shall he still be presumed to hold possession for the person for whom he originally took it.”

Appellants’ status when they first moved onto the 47.5 arpent tract of land was that of sharecroppers with a certain percentage of the crops grown by them being given to the landowners. However, on March 13, 1945, appellants entered into a contract of sale with Cecilia Solomon (another of the eight children of Arsenne Solomon and the aunt of Mabel Solomon Broussard), which they believed conveyed to them the undivided one-eighth ownership interest of Cecilia Solomon in the 47.5 arpent tract of land. Appellants testified that after they purchased what they believed was Cecilia Solomon’s interest in the land, they began to keep for themselves the share of the crops that would have gone to her. Appellants also testified that they then had the intention of possessing the land as co-owners, which they actually believed they were. This intention of possessing the land as co-owners was reinforced when appellant, Mabel Solomon Broussard, inherited her father’s undivided one-eighth ownership interest in the land.

We hold that LSA-C.C. Article 3446 sets up a rebuttable presumption that a person, who commences his possession of certain property as a “precarious possessor”, retains that status, even if he should change his intention and begin to possess the property for himself as owner.

The fact that there can be a change in the character of one’s possession was recognized in Thompson’s Succession v. Cyprian, 34 So.2d 285 (La.App. 1 Cir. 1948), and Cole v. Martin, 343 So.2d 334 (La.App. 2 Cir. 1977), writ denied, 345 So.2d 506 (La. 1977). See LSA-C.C.P. Article 3512. Admittedly, these two cases were decided under the Louisiana Civil Code articles relating to acquisitive prescription. But, if it is possible that under certain circumstances the character of possession of a “precarious possessor” may be changed such that he may then acquire the ownership of the property by prescription, then surely under certain circumstances the character of possession of a “precarious possessor” may be changed such that he may then acquire the possession of the property.

We conclude that there are circumstances present in the case before us which changed the character of appellants’ possession from “precarious” to possession of a certain portion of the 47.5 arpent tract of land for themselves. The first circumstance is the fact that appellant, Mabel Solomon Broussard, was a co-owner of the entire tract of land for a period of time after appellants’ possession had commenced. The second circumstance is the fact that appellants, together with the co-owners, believed that they had purchased an undivided one-eighth ownership interest in the land from Cecilia Solomon.

We find that appellants had corporeal possession of that portion of the land on which their home was constructed and the surrounding yard. We further find that appellants combined this corporeal possession with the intention to possess that land as co-owners. Thus, appellants are in possession of that land. LSA-C.C. Article 3436, supra.

PROPER PROCEDURE: PETITORY ACTION

LSA-C.C.P. Article 3651 provides:

“Art. 3651. Petitory action
The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.”

The petitory action is the proper remedy for appellees to use in their attempt to gain possession of that portion of the 47.5 arpent tract of land which appellants are presently in possession of. The use of this remedy is further indicated by the fact that appellants are claiming the ownership of a portion of the land adversely to appellees.

Appellants’ ownership claim is based on their alleged purchase of the ownership rights of Cecilia Solomon, as evidenced by the cash deed executed by them, and the following language found in the Louisiana Supreme Court’s writ denial in Broussard v. Champagne, supra:

“. .. our denial is expressly without prejudice to any rights Mabel Solomon Brous-sard and Andrew Broussard may have to the property they acquired by deed, they not having been joined in the partition suit on the basis of their capacity as purchasers and they not having been named as defendants. LSA-C.C. Article 2286.”

The trial court found that appellants have failed to prove that they acquired any ownership interest in the 47.5 arpent tract of land by purchase from Cecilia Solomon. We conclude that it was improper for the trial court to decide this issue of ownership in the context of an eviction proceeding.

Because of our decision herein, we preter-mit any discussion of appellants’ possessory action and the trial court’s dismissal of that action. We expressly reserve to all parties involved in the actions before us the right to bring any and all lawful actions, which they believe necessary to assert or protect their rights to the possession and/or ownership of any portion of the 47.5 arpent tract of land.

For the above and foregoing reasons, the judgment of the trial court is reversed, and plaintiffs’ suit is dismissed.

Costs of this appeal and on trial level are assessed against plaintiffs-appellees.

REVERSED.

      . This suit, # 8310 of this Court’s docket, was consolidated at trial and on appeal with Andrew Broussard, et ux. v. George J. Champagne, Jr., et al., 401 So.2d 1067, a separate judgment will be rendered in Broussard v. Champagne concurrently with Champagne v. Broussard, # 8310.

      . An arpent is an old French unit of land area and is equal to approximately 0.85 acres.

      . The following is the description as shown in the deed:
      “All her rights, titles and interests in that certain undivided tract of land on the east side of Bayou Teche, situated in the Parish of St. Martin, State of Louisiana, containing Six and one half (6V2) arpents, more or less and bounded as follows: North by Clovis Melancon, South by Clovis Melancon, East by Public road and West by Eugene Gravouillia, and it being part of the property inherited by her from her mother, Arsene Solomon.
      It is agreed and understood that vendor reserves to herself, her heirs and assigns the one half of all oil, gas and other minerals that they be produced on said land.”


text:
    Andrew BROUSSARD, et ux., Plaintiffs-Appellants, v. George J. CHAMPAGNE, Jr., et al., Defendants-Appellees.
    No. 8311.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Jo Ann Nixon, Lafayette, for Andrew Broussard.
    Champagne, Colomb and Brumbaugh, George J. Champagne, Jr., Lafayette, for defendants-appellees.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

For the reasons assigned this date in George Champagne, Jr., et al. v. Andrew Broussard, et ux., 401 So.2d 1060, with which this case was consolidated in the trial court and on appeal, the judgment of the trial court is reversed and this matter is remanded to the trial court.

Costs of appeal are assessed against defendants-appellees; costs of the trial court previously incurred and any other costs shall be assessed upon final determination of this case.

REVERSED AND REMANDED.


author: LABORDE, Judge.

text:
    Harvey PARDEE, Plaintiff-Appellee, v. BITUMINOUS INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8312.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Blanchard, Walker, O’Quinn & Roberts, Jerald L. Perlman, Shreveport, for defendants-appellants.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Harvey Pardee, filed suit against defendants-appellants, Bituminous Insurance Company (properly Bituminous Casualty Corporation), K&M Construction Company, Inc., and Jessie Walker for personal injuries sustained him in a two vehicle accident which occurred on U. S. Highway 71 in Campti, Natchitoches Parish, Louisiana, on November 21, 1978. The trial court held in favor of Pardee and awarded him $50,000 in general damages and $3,802.35 in special damages. Defendants appeal urging that we apply the “sudden emergency doctrine” to exonerate them; that we reduce the general damage award of the trial court; and that the special damage award for loss of income be disallowed. We amend and affirm. We hold that the application of the sudden emergency doctrine is not warranted in this case. Further, we find no abuse of discretion by the trial judge in the general damage award; however, the special damage award of $1,365.50 must be deleted since no evidence was introduced at the trial to support the award.

The salient facts are: The accident happened at dawn on slick, foggy U. S. Highway 71 in Campti, Louisiana on November 21, 1978. Defendant’s truck, owned by K&M Construction Company, Inc., driven by its employee, Jessie Walker, and insured by Bituminous Casualty Corporation, was proceeding in a northerly direction on Highway 71. As defendant’s truck approached an intersection which led to the Western Kraft paper mill, both the driver, Jessie Walker, and his passenger, Hardie Hines, testified that a large eighteen wheel logging truck which had passed them several minutes before, was stopped in the highway near the paper mill road intersection. Walker immediately applied the brakes, but due to the fact that the highway was slick, he was unable to stop his vehicle and was required to take evasive action in order to avoid colliding into the rear of the eighteen wheel truck. In so doing, Walker lost control of his vehicle and entered into the south bound lane. At this point, Pardee was traveling in his pickup truck in a southerly direction on Highway 71, saw the defendant’s vehicle and commenced to pull over to the right shoulder in order to avoid him, but was unsuccessful in doing so.

The trial judge found that the accident was caused solely by Walker. In his reasons for judgment he stated:

“BY THE COURT: On the morning of the accident, it was early in the morning and there was some question as to whether or not headlights were needed or not but nevertheless it is clear to the Court that according to the testimony of the investigating officer and drivers and passengers in the two different vehicles that the highway was slick, it had been raining during the night and it was foggy by everyone’s testimony and it was that time of morning that we call dawn. The accident happened in the city limits of Camp-ti where the speed limit was 45 miles an hour. The Court finds that Mr. Walker in driving the K&M Construction truck was guilty of negligence in failing to keep a proper lookout and failing to keep his vehicle under proper control and in failing to observe the stopped 18-wheeler in time to avoid leaving the Walker lane of traffic and entering the Pardee lane of traffic. The Court finds that the sole cause of the accident was the negligence of Mr. Walker in not seeking the truck which was stopped in the city limits of Campti, Louisiana.... ”

Since the eighteen wheeler had passed defendant’s truck several hundred yards prior to the accident site and had disappeared into the fog, only to re-appear at the paper mill intersection with no tail lights activated, defendants urge us to apply the sudden emergency doctrine to exculpate them from negligence.

To the contrary, our review of the record leads us to conclude that the sole and proximate cause of the accident was Walker’s failure to maintain a proper lookout and failure to keep his vehicle under control. In our opinion the trial court’s finding of fact —Walker’s negligence—is clearly correct and that finding will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Addressing the issue of quantum, the trial judge gave the following reasons for judgment:

“It was stipulated at the trial that Bituminous Casualty provided insurance coverage at the time of the accident; that the defendant driver was within the scope of his employment at the time of the wreck; that the policy limits exceed the amount of the lawsuit; and, that the property damage to plaintiff was $1,000.00.
The evidence submitted by the plaintiff and his witnesses show that as a result of the collision, the plaintiff suffered painful and disabling injuries. He missed 63 days of work with the Natchitoches Parish Police Jury, but lost no salary because he used accrued sick and annual leave while he was off work. He has sustained a marked loss of hearing; is now easily irritated, moody, and does not participate in social activities, fishing and hunting, which he did prior to the wreck.
The Court awards plaintiff the following:
Stipulated property damage $ 1,000.00
Medical and Surgical Clinic 247.00
Highland Clinic Optical Dispensary 278.25
Dr. John L. Greer 39.00
Dr. H. Winston Brown 100.00
Huckabay Memorial Hospital 234.50
Bates Cash Pharmacy 38.00
TOTAL. $ 1,936.75

The Court also makes the following awards:

Loss of wages, use of sick leave $1,365.60
Loss of use of vehicle 500.00
General damages, pain and suffering, loss of hearing 50,000.00”

We have examined the record within the parameters given by our Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979) and find no abuse of discretion by the trial judge.

Finally we must determine whether Pardee is entitled to recover loss of wages when, as defendants claim, no evidence was introduced regarding either his pre or post accident rate of pay.

Our review of the record reflects that indeed no evidence was introduced as to Pardee’s rate of pay, and without such evidence, an award of lost wages is entirely improper. Wilson v. Jones, 294 So.2d 231 (La.App. 1st Cir. 1974).

We note that the bookkeeper for Pardee’s employer testified as to the number of days Pardee was off the job. However, no testimony was introduced as to his rate of pay. Pardee’s rate of pay is reflected in answers to interrogatories propounded by defendants. These were never introduced into evidence and may not be considered by trial or appellate courts. Olivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App. 3rd Cir. 1964) and Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975).

For the above and foregoing reasons the judgment of the trial court is amended to delete the award of $1,365.50 for lost wages and as amended is affirmed at defendant-appellants’ costs.

AMENDED AND AFFIRMED.


text:
    BUDD CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, et al., Defendants-Appellants.
    No. 8328.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Gravel, Robertson & Brady, Camille F. Gravel, Jr. and David W. Robertson, Garrett, Ryland and Nunnally, B. Dexter Ry-land, Alexandria, for defendants-appellants.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, Wray, Robinson, Mary & Rracht, W. P. Wray, Jr., Baton Rouge, for plaintiffs-appellees.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

Budd Construction Company, Inc. (Budd) and the Associated General Contractors of America, Inc., Louisiana Highway, Heavy, Municipal and Utilities Branch (AGC), brought this action to enjoin the City of Alexandria, Louisiana (the City) from entering into a contract with the Slocum Construction Company (Slocum) for the replacement of the Applewhite Street Bridge (the project) over the Chatelain Lake Canal located within the city.

Petitioners requested, and the trial court issued, a temporary restraining order (TRO) forbidding the City from entering into the contract with Slocum, and the trial court set a hearing date on petitioners’ rule for a preliminary injunction against the City. Slocum had not been made a party to this action and it intervened therein. Slocum filed a motion to dissolve the TRO and sought damages and attorney’s fees for its wrongful issuance. Thereafter, the City joined with Slocum in filing a joint motion for the dissolution of the TRO and it also sought damages and attorney’s fees.

Petitioners filed an exception of no right and no cause of action arguing that Slocum, as an intervenor, had failed to allege an independent right or cause of action for which it sought relief. Petitioners prayed that Slocum’s intervention and motion to dissolve the TRO be dismissed, but the trial court overruled the exception.

The City and Slocum filed joint exceptions of no cause of action and no right of action. They alleged in the exception of no cause of action that petitioners had failed to state any ground for the issuance of an injunction. They argued in the exception of no right of action that petitioners had failed to allege that they were taxpayers of the City or that Budd was the “lowest responsible bidder” on the project. The trial court overruled both exceptions.

The City then filed an exception of failure to join an indispensable party alleging that Slocum should be made a defendant in these proceedings and the trial court sustained the exception.

The TRO was extended twice by the trial court to allow time for hearings on petitioners’ rule for a preliminary injunction and, during this time period, this Court denied an application for writs filed by the City and Slocum. The trial court then rendered judgment overruling the motions to dissolve the TRO and granted the preliminary injunction.

The City and Slocum appeal from the trial court’s judgment and present three issues:

(1) Whether the temporary restraining order was wrongfully issued and, if so, are appellants entitled to damages and attorney’s fees;
(2) Whether the trial court erred in granting the preliminary injunction and, if so, are appellants entitled to damages and attorney’s fees; and
(3) Whether petitioners have standing to sue for injunctive relief.

FACTS

The Alexandria City Council (the Council) adopted resolution number 1650-1980, on September 2,1980, calling for the advertisement for bids on the project. The Council received two bids, one from Slocum, and the other from Budd. Budd’s bid totaled $98,-579.00, while Slocum’s bid totaled $97,-620.40, making it the apparent low bidder. However, Sam Craven (the City Attorney) ruled that Budd was the actual low bidder.

Craven based his ruling on the fact that the bid by Slocum contained a discrepancy. The discrepancy was found in connection with item # 5 of the bid form, which called for 570 square yards of Portland cement concrete paving slab including curb and gutter removed and replaced. The written unit price on the bid form was for $18.00 per square yard, while the price written in figures was $12.00 per square yard. Slocum’s total bid price, using the $18.00 per square yard figure, amounted to $101,-040.00, making it higher than the price contained in the bid submitted by Budd. However, the Council, relying on representations made by Slocum that it intended to be bound by the lower figure in its bid, decided, by a 4-3 vote, to award the contract to Slocum.

Budd and AGC instituted this action on November 4, 1980, and alleged that the action of the Council, in awarding the contract to Slocum, was a violation of the “Louisiana Public Bid Law” (LSA-R.S. 38:2184.1 et seq), the City’s Home Rule Charter, and various ordinances and resolutions adopted by the Council.

The trial court rendered judgment on January 22, 1981, granting the preliminary injunction and denying appellants’ motion to dissolve the TRO. That court then denied a motion for a partial new trial filed by the City and Slocum, and they were granted a devolutive appeal.

THE TEMPORARY RESTRAINING ORDER

Appellants contend that the TRO was wrongfully issued and that the trial court erred in denying their motion to dissolve it.

LSA-C.C.P. Article 3612 provides, in pertinent part:

“Art. 3612. Appeals
There shall be no appeal from an order relating to a temporary restraining order.”

However, appellants take the position that this Court may review a trial court’s order refusing to dissolve a TRO when an issue regarding such a refusal is presented on an appeal from the grant or denial of a preliminary injunction. We disagree and find that some of the jurisprudence cited by appellants clearly supports our decision that this Court has no power to hear an appeal from an order relating to a TRO under any circumstance, or is inappo-site to the issue before us.

Appellants cite Amacker v. Amacker, 146 So.2d 672 (La.App.1 Cir. 1962), where defendants appealed from a judgment of the lower court dismissing their motion to set aside a TRO and granting a preliminary injunction sought by plaintiff. Amacker found that plaintiff possessed an adequate remedy at law and was not entitled to injunctive relief. Amacker then stated on page 676 that:

“In view of the foregoing, it follows that the temporary restraining order and preliminary injunction herein issued by the trial court were improvidently and improperly granted and must be dissolved and set aside.”

We fail to see how Amacker could dissolve the TRO issued by the trial court since it no longer existed at that time. A TRO, by its very nature, is dissolved by operation of law once the trial court grants or denies the request for a preliminary injunction by the party having the TRO issued.

The Louisiana Supreme Court, in Powell v. Cox, 228 La. 703, 83 So.2d 908 (1955), stated, 83 So.2d on page 910 that:

“A temporary restraining order, granted without notice to the opposite party, is intended to and does actually serve only as a temporary restraint on the defendant until the propriety of granting a preliminary injunction may be determined, objectively preserving the status quo until that determination. Its very name, ‘temporary restraining order’, and the fact that it expires and ceases to exist within a time fixed after entry, not to exceed ten days, unless extended within the time fixed for good cause shown, definitely designates its meaning and purpose. Such an order is clearly distinguishable from a preliminary writ of injunction. Manifestly, it does not enjoy the force and vigor of the latter; granted without notice, it is merely preliminary to a hearing and wholly independent thereof.
As previously observed, a temporary restraining order expires within the time fixed by the court. It ceases to exist and its legal effectiveness is of no moment as of the date of the hearing of the rule nisi for either the granting or refusing of a preliminary injunction.” (Emphasis provided.)

See also Ducros v. St. Bernard Parish Police Jury, 200 La. 766, 8 So.2d 694 (1942); Austin v. Currie, 16 La.App. 375, 134 So. 723 (2 Cir. 1931); Albert Pick & Co. v. Stringer, 171 La. 131, 129 So. 731 (La.1930); Lyons v. Campbell, 216 So.2d 895 (La.App.2 Cir. 1968), per Judge (now Justice) Dixon concurring; Snowden v. Red River and Bayou Glaises Levee and Drainage District, 172 La. 447, 134 So. 389 (1931), certiorari dismissed, 284 U.S. 592, 52 S.Ct. 198, 76 L.Ed. 510 (1931).

In the action before us, the trial court signed an order on November 4, 1980, directing the issuance of the TRO requested by petitioners conditioned upon their furnishing bond. The trial court also ordered appellants to show cause on November 10, 1980, why a preliminary writ of injunction in the form and substance of the TRO should not issue during the pendency of these proceedings. The trial court extended the duration of the TRO when it failed to conclude a hearing on the rule for the preliminary injunction held on November 10, 1980. The matter was continued until November 17, 1980. The hearing on the rule for the preliminary injunction and on appellants’ motion to dissolve the TRO was further held at that time and the matter was again continued until November 24, 1980, with another extension of the TRO ordered. The trial court then signed an order on November 25, 1980, pursuant to an agreement of all parties that the TRO be extended indefinitely until further order of the court. The hearing on petitioners’ rule for a preliminary injunction and appellants’ motion to dissolve the TRO was finally concluded on December 10, 1980, with the matter being taken under advisement. The trial court rendered its judgment on January 22, 1981, denying appellants’ motion to dissolve the TRO and granting the preliminary injunction sought by petitioners.

We find that the TRO issued by the trial court ceased to exist by operation of law on January 22, 1981, the date on which the preliminary injunction was granted.

Appellants argue that although the TRO was not dissolved on their motion and expired by operation of law, this Court should review the trial court’s refusal to dissolve the TRO because they are entitled to recover damages and attorney’s fees for its wrongful issuance. We disagree.

The Louisiana Supreme Court, in Ducros v. St. Bernard Parish Police Jury, supra, was faced with a similar argument which the Court summarized at 8 So.2d on page 696 as follows:

“In other words, the proposition is that, although the temporary restraining order was not dissolved on the defendant’s motion and although it expired by its own terms at the time the preliminary injunction was granted, this court should nonetheless decide the merits of the case because the Police Jury is entitled to recover an attorney’s fee for the wrongful issuance of the order.”

Plaintiffs in Ducros sought to enjoin defendants from proceeding with a proposed special election and from holding a similar election in the future. The trial court issued the TRO sought by plaintiff and a rule requiring defendant to show cause why a preliminary injunction should not be granted. The rule was then made absolute and a preliminary injunction issued. Defendants prosecuted a devolutive appeal to the Louisiana Supreme Court. Ducros answered defendant’s argument and held on page 696 that:

“There is no substance whatever in counsel’s contention. Should we undertake to decide that the temporary restraining order was wrongfully issued, it would be tantamount to the allowance of an appeal from that order in plain violation of Section 5 of Act 29 of 1924. That section provides:
“No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order; but where upon a hearing, a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolu-tive, but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree; * *

The source provisions of LSA-C.C.P. Article 3612, supra, are former LSA-R.S. 13:4070 and Acts 1924, # 29, § 5.

The Louisiana Supreme Court, in Darmana v. New Orleans Stock Yard, Inc., 226 La. 897, 77 So.2d 528 (1954), had occasion to interpret former LSA-R.S. 13:4070. Plaintiffs in Darmana sought injunctive relief from the action of the majority of the board of directors of defendant, forbidding payment of certain salaries to defendants’ officers. The trial court issued a TRO requested by plaintiffs and defendants filed a motion to dissolve the TRO. The trial court overruled the motion to dissolve and granted plaintiffs a preliminary injunction. Defendants perfected a devolutive appeal to the Louisiana Supreme Court and one of their complaints was the refusal of the trial court to grant their motion to dissolve the TRO. Darmana held at 77 So.2d on page 529 that:

“One of the errors complained of is the refusal of the trial judge to have granted defendants their motion to dissolve the temporary restraining order, but it is well settled that an appellate court will not review the action of the district court in refusing to dissolve a temporary restraining order. It cannot do so in face of the positive provision of section 5 of the original injunction act, No. 29 of 1924, now LSA-R.S. 13:4070, that ‘No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order, * * As pointed out in Duc-ros v. St. Bernard Parish Police Jury, 200 La. 766, 8 So.2d 694, to review and pass on the correctness of the ruling by the district court on such motion would be tantamount to allowing an appeal from the order in plain violation of that section of the law. Like the temporary restraining order in that case, the one in this case expired in accordance with law when the preliminary injunction issued. • After that it served no further purpose; it was dissolved by its own limitation, and we are not concerned on this appeal which is from the order granting the preliminary injunction, with the reasons of the district judge why he granted it or why he refused to dissolve it.” (Emphasis provided.)

See Shingledecker v. Spencer, 157 So.2d 622 (La.App. 4 Cir. 1963), writ denied 245 La. 575, 159 So.2d 286 (1964) for a case in which the court reaches the same results as above under LSA-C.C.P. Article 3612.

We hold that this Court has no power on appeal to review a judgment of a trial court denying a motion to dissolve a TRO.

Appellants argue, however, that this Court, in Succession of Vice, 385 So.2d 554 (La.App. 3 Cir. 1980), reviewed a judgment by a trial court granting a TRO. The trial court there issued a temporary restraining order forbidding appellant and a financial institution from alienating or transferring certain certificates of deposit to any person other than the Vermillion Parish Clerk of Court. The trial court then granted appel-lee a preliminary injunction, to the same effect, after hearing. Vice found that ap-pellee was not entitled to injunctive relief and further held on page 558 that:

“For the same reasons,4 we find that the temporary restraining order originally issued on September 7, 1978, and subsequent extensions thereof, were improvidently and improperly granted and must be dissolved.
La.C.C.P. Article 3608 provides in part that attorney’s fees are recoverable when a temporary restraining order is dissolved after a trial on the merits. Roy v. Union Bank, 347 So.2d 286 (La.App. 3rd Cir. 1977) has interpreted this portion of the statute to mean that the temporary restraining order can be dissolved by the Court of Appeal which can then grant damages and/or attorney’s fees for the first time on appeal. We will follow the Roy case and grant appellant attorney’s fees in the amount of $500.00.”

This portion of the decision in Vice is clearly incorrect under the above cited jurisprudence interpreting LSA-C.C.P. Article 3612 and its sources. Further, this Court in Roy v. Union Bank, supra, held that an appellate court could mandate the dissolution of a preliminary injunction, rather than a TRO, on appeal and then grant damages and attorney’s fees if warranted under the provisions of LSA-C.C.P. Article 3608.

We disagree with Vice to the extent that it conflicts with this opinion and the jurisprudence of the Louisiana Supreme Court cited above.

THE PRELIMINARY INJUNCTION

Appellants contend that the trial court wrongfully issued the preliminary injunction requested by appellees, which prohibits the City from entering into a contract with Slocum for construction of the project. Appellants’ position is that a public agency, such as the Council, has wide discretion in awarding public works contracts and that there was no abuse of discretion by the Council in awarding this contract to Slocum. Appellants further contend that the trial court erred in granting the preliminary injunction because appellees failed to allege or prove that the action of the Council was taken in violation of a prohibitory law or that they would suffer irreparable injury without injunctive relief.

Appellees, to the contrary, contend that the Council arbitrarily decided to ignore its own specified procedure for accepting and tabulating bids in making its determination that Slocum was the “lowest responsible bidder” on this public works contract and that this action by the Council does constitute a violation of a prohibitory law, i. e., LSA-R.S. 38:2212, infra. Appellees further contend that Budd was actually the “lowest responsible bidder” and that because the Council did violate a prohibitory law, they did not have to allege or prove irreparable injury to obtain a preliminary injunction.

It is unnecessary to allege or prove irreparable injury in order to enjoin the action of a municipal council, if the threatened action of the municipal council is in direct violation of a prohibitory law. Bardwell v. Parish Council of Parish of East Baton Rouge, 216 La. 537, 44 So.2d 107 (La.1949); Connell v. Commission Council of City of Baton Rouge, 153 La. 788, 96 So. 657 (1923); Lindsey v. Holland, 95 So.2d 754 (La.App. 1 Cir. 1957); Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1 Cir. 1972). LSA-R.S. 38:2212, infra, is a prohibitory law. Haughton Elevator Division v. State, Division of Administration, 367 So.2d 1161 (La.1979).

The basic statutory law governing this issue is contained in LSA-R.S. 38:2184.1, et seq. These statutes provide that public works projects exceeding the sum of $10,-000.00 be advertised for bids and that the contract be awarded to the “lowest responsible bidder”.

LSA-R.S. 38:2212 provides in pertinent part:

“§ 2212. Advertisement and letting to lowest responsible bidder
A. (1) All public work exceeding the sum of ten thousand dollars including both labor and materials and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. All such bids shall be either hand delivered by the bidder or his agent in which instance the deliverer shall be handed a written receipt, or such bid shall be sent by registered or certified mail with a return receipt requested. Provided, however, that the requirement that all bids be sent by registered or certified mail shall not apply to bids received by municipal and parochial governing authorities.” (Emphasis provided.)

It is well established by the Louisiana jurisprudence interpreting this statute or its predecessors that a low bidder may, on a contract so advertised, sue to set aside the award of the contract to another bidder and may enjoin the agency from the execution of such contract, where the agency arbitrarily rejected the low bid. Haughton Elevator Division v. State, Division of Administration, supra; Sternberg v. Board of Commissioners of Tangipahoa Drainage District No. 1, 159 La. 360, 105 So. 372 (1925); Standard Highway Company, Inc. v. Police Jury of Tangipahoa Parish, 158 La. 294, 103 So. 819 (La.1925); St. Landry Lumber Co. v. Mayor and Board of Aldermen of Town of Bunkie, 155 La. 892, 99 So. 687 (1924).

LSA-R.S. 38:2212, supra, insofar as it requires advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of the taxpaying citizens of this State, and has for its purpose their protection against contracts of public officials awarded through favoritism and possibly involving exorbitant and extortionate prices. Haughton Elevator Division v. State, Division of Administration, supra; Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (La.1949); Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (La.1943).

We agree with the trial court and appellants that the crucial issue before us is whether the City was arbitrary or unfair in making its determination of which of the two bidders on this public works contract was the “lowest responsible bidder”. If the Council acted arbitrarily or unfairly in making this determination, then its action was in violation of a prohibitory law, i. e., LSA-R.S. 38:2212, supra.

LSA-R.S. 38:2212 vests in the public agency awarding a public works contract the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. However, the law does not permit the arbitrary selection of one which is higher and the rejection of others which are lower. The discretion must be exercised in a fair and legal manner and not arbitrarily. Haughton Elevator Division v. State, Division of Administration, supra; St. Landry Lumber Company v. Mayor and Board of Aldermen of Town of Bunkie, supra.

Louisiana follows the general rule of vesting a public agency, in awarding a public works contract, with discretion subject to judicial review. Courts will not substitute their judgment for the good faith judgment of an administrative agency. Haughton Elevator Division v. State, Division of Administration, supra.

T.L. James & Co. v. Jefferson Parish Council, 161 So.2d 597 (La.App. 4 Cir. 1964), stated on pages 599 and 600 that:

“The law governing the acceptance of bids for public works, where the statute requires the award be made to the ‘lowest bidder,’ is clearly stated in 43 American Jurisprudence, § 44, p. 786, verbo ‘Public Works and Contracts,’ to the effect that, when the controlling statute or ordinance requires, without qualification, the letting of a pubic contract to the lowest bidder, the duty of awarding the contract is generally held to be ministerial and not judicial, and the contract must be awarded to the bidder whose bid is actually the lowest in amount. Usually, however, the contract is not required to be awarded to the lowest bidder, without qualification, but to the ‘lowest responsible bidder,’ or ‘lowest and best bidder.’ There is but little dissent from the general rule that, in determining who is such ‘lowest responsible bidder,’ or ‘lowest and best bidder,’ public boards and officials are vested with wide discretion. Their decision, when based upon an honest exercise of the discretion thus vested in them, will not be interfered with by the courts, unless apparently arbitrary or capricious." (Emphasis provided.)

See also Williams v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 388 So.2d 438 (La.App. 2 Cir. 1980); Tide Equipment Company v. Pointe Coupee Parish Police Jury, 312 So.2d 154 (La.App. 1 Cir. 1975), writ denied, 315 So.2d 38 (La.1975); Toye Bros. Yellow Cab Company v. City of New Orleans, 264 So.2d 768 (La.App. 4 Cir. 1972), writ denied 263 La. 102, 267 So.2d 210 (1972), 64 Am.Jur.2d, § 68, page 924, verbo “Public Works and Contracts”.

The Council, by resolution # 1650-1980, adopted on September 2, 1980, ordered the advertisement for bids on the construction of the Applewhite Street Bridge Project. Advertisement was made according to law and the Council received two bids on the project, one from Slocum and the other from Budd. Pursuant to resolution # 1650-1980, the bids were opened on September 16,1980, at a regular meeting of the Council and were referred to the Mayor and the appropriate committee for tabulation and recommendation. However, it was noticed during tabulation that the bid submitted by Slocum contained a discrepancy with respect to item # 5 on the bid form.

Slocum was notified of the fact that its bid contained a discrepancy by letter dated September 23, 1980, from Jackie P. Adams, City Clerk, and that the City Attorney had ruled that the low bidder on the project was Budd. The basis of the City Attorney’s ruling was that when the discrepancy contained in Slocum’s bid was resolved under the existing policy and procedures of the Council for resolving such discrepancies, Slocum’s bid totaled $101,753.20, or $3,174.20 higher than Budd’s bid. Slocum was invited to attend a meeting of the Council, if it wanted to be heard in connection with the award of this contract. Slocum, through counsel, sent a letter to the mayor and council dated September 30, 1980, in which it expressed its willingness to be bound by the lower figure found in its bid and contended that it was the “lowest responsible bidder” on the contract.

The minutes from the council meeting held on September 30, 1980, reflected that the Council had taken no action with respect to awarding this contract and that none would be taken until after an informal fact-finding meeting, which would be held on October 7, 1980. Apparently the matter was discussed at this informal meeting. Thereafter, the Council, by a 4-3 vote, passed ordinance # 174-1980, determining that Slocum was the low bidder on the project and authorizing the mayor to enter into a contract with Slocum.

Appellees contend that if the Council had followed its policies and procedures for tabulating bids, then Slocum’s bid would have totaled $101,753.20, making Budd the “lowest responsible bidder” with a bid of $98,-579.00. Appellees further contend that the arbitrary action of the Council in selecting Slocum’s bid, which it contends was the higher bid, is a violation of LSA-R.S. 38:2212. Essentially, appellees argue that the Council adopted certain procedures and policies for accepting and tabulating bids received on public works contracts, which it arbitrarily chose to ignore in awarding this particular public works contract. Those procedures and policies are derived from a number of different sources. Appellees first cite a document entitled, “General Specifications for Street Paving and Storm Drainage, City of Alexandria, Louisiana (February, 1963).” Specifically, Division I (General Requirements and Covenants), Section 2.05 (Proposal Requirements and Conditions — Preparation of Proposal) of that document which provides in pertinent part that, “in case of conflict between the written unit price and the unit price in figures, the written unit price shall govern”.

Appellees also cite Article V, § 10 of the Home Rule Charter of the City of Alexandria, which is entitled “Financial Procedures — Purchasing”, and provides:

“Section 5-10. Purchasing.
A. Purchasing of all property, supplies, materials and services shall be under a central purchasing system and shall be in accordance with applicable State law, and Council policy and administrative requirements.
B. All public works aggregating $7,500.00 or more shall be advertised and let by contract to the lowest responsible bidder in accordance with applicable Council policy and administrative requirements.” (Emphasis provided.)

The record reveals that resolution # 1379-1979, adopted by the Council on September 18, 1979, as amended by resolution # 1580-1980, adopted on June 10, 1980, provides in Section IV, Subsection (dd) that: “In case of a conflict between the written unit price and the unit price in figures, the written unit price shall govern.” The preamble to resolution # 1379-1979 specifically states that it is “A resolution establishing certain council policy and procedures dealing with purchasing for the City of Alexandria as provided in Section 5-10 of the Home Rule Charter.”

“RESOLUTION NO. 1379-1979

A RESOLUTION ESTABLISHING CERTAIN COUNCIL POLICY AND PROCEDURES DEALING WITH PURCHASING FOR THE CITY OF ALEXANDRIA AS PROVIDED IN SECTION 5-10 OF THE HOME RULE CHARTER

WHEREAS, the Alexandria City Council now desires to establish certain Council policy and administrative requirements dealing with purchasing for the City of Alexandria as provided in Section 5-10 of the Home Rule Charter, now therefore

BE IT RESOLVED by the Council of the City of Alexandria, Louisiana, in legal session convened, that the following policies and administrative requirements dealing with procurements be and they are hereby established:”

******

“SECTION VI: Procedures and policies for receiving bids.

(a) Established. For the purpose of receiving bids on construction contracts in excess of one thousand dollars ($1,000) and materials and supplies exceeding the sum of two thousand five hundred dollars ($2,500) pursuant to the purchasing regulations of the City, the following procedures and policies are hereby established:”

******
“(dd) Each bidder must submit his proposal on the proposal form furnished by the purchasing agent. Altered or substitute forms will not be accepted. Bidders shall examine carefully the proposal form before submitting same in order to insure that unit price, both in words and numerals, is submitted on each and every item on which all bidders are required to submit a bid and that the total cost of the item has been extended as provided on the bid form. In case of a conflict between the written unit price and the unit price in figures, the written unit price shall govern. Should the written unit price be illegible, the unit price in figures shall govern. In the event of objections on the form, the bidders must immediately notify the Council in writing and state the grounds for his objections.” (Emphasis provided.)

Emett Mathews, Jr., the city engineer, was called as a witness under the rule of cross-examination by appellees. He stated that he had worked for the city in that capacity for approximately 32 years and that checking the bid proposals for work the city wanted done was one of his duties. This included the receipt and tabulation of bids. He also testified, under strenuous objection by counsel for appellants, as to the city’s uniform rule or practice for handling discrepancies between written unit prices in bids and unit prices in figures. He stated that it was the practice of the city to use the written, spelled-out figure. He also stated that he would only report the discrepancy to the Council, which made the final ruling on it. However, when asked how the Council had handled such discrepancies in the past, he replied, “They applied the written word.”

It is clear that the Council ignored both the ruling of the city attorney and the plain provisions of its own written policies and procedures in making its determination that Slocum was the “lowest responsible bidder” on the project. Yet, appellants contend that this decision was in no way arbitrary or an abuse of the Council’s discretion. Further, appellants argue that the trial court made no finding that the Council had acted arbitrarily in making its decision. The record, in fact, reveals the contrary. The trial court specifically stated in its written opinion that:

“. .. Furthermore, the ability of the City to follow or not to follow the bidding procedures that it, itself, has promulgated as it sees fit seems to be the very essence of arbitrary power.
“On a somewhat more practical vein, a holding that the City may or may not adhere to its own procedures without violating the Public Bidding Laws would allow by indirection that which is otherwise prohibited. Such a rule would allow, as petitioner has suggested, a favored company to, in effect, make two bids by deliberately doing what Slocum did by inadvertance and, at the very least, gain an unfair advantage over his not so favored competitors. Judicial review would be meaningless except in cases of outrageous misconduct because, as in this case, it is virtually impossible to ascertain the subjective intent when the bid was submitted.” (Emphasis provided)

We fail to understand how a public agency can formulate policies and procedures, which it will use in making determinations regarding the awarding of public works contracts, and then simply disregard those policies and procedures in specific instances and, yet, contend that it is not acting arbitrarily. We agree with the trial court and find that the Council acted arbitrarily. We further find that this constitutes an abuse of the Council’s admittedly wide discretion in handling the award of public works contracts.

Appellants argue that the advertisement for bids on this public works project specifically stated that:

“Contract will be let to the lowest responsible bidder who bids according to requirements with the right reserved to reject any and all bids and to waive infor-malities”.

Appellants then argue that the discrepancy contained in Slocum’s bid was a mere informality which could be waived. We disagree. It would be contrary to the applicable statutes and jurisprudence to hold that the City could avoid its legal duty to act in a fair and legal manner, and not arbitrarily, by the inclusion of such a provision in its advertising for bids on a public works project.

We find that Budd was the “lowest responsible bidder” on this public works project and that the Council arbitrarily selected the higher Slocum bid. We further find that this action of the Council was a direct violation of LSA-R.S. 38:2212, and, therefore, appellees were entitled to the preliminary injunction granted them by the trial court.

PETITIONERS’ STANDING TO SEEK INJUNCTIVE RELIEF

Appellants contend that petitioners lacked the necessary standing to sue for injunctive relief against the City’s action in awarding the contract to Slocum.

LSA-C.C.P. Article 681 provides:

“Art. 681. Real and actual interest required
Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

The peremptory exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. Lambert v. Donald G. Lambert Construction Company, 370 So.2d 1254 (La.1979); see also Official Revision Comments to LSA-C.C.P. Article 681, supra.

Appellants filed an exception of no right of action in the court below. They argued in their exception, as they now do on appeal, that Budd and AGC had failed to allege that they were taxpayers of the City of Alexandria. Further, they also argue that Budd was not the low bidder on the contract. The trial court overruled the exception of no right of action.

The only two objections which should be raised in the peremptory exception of no right of action are either lack of interest or lack of capacity in the plaintiff to institute the action. Broday v. Broday, 360 So.2d 645 (La.App. 3 Cir. 1978). Appellants make no objection that either Budd or AGC lacked the procedural capacity to institute this action. Rather, appellants’ objection is that neither Budd nor AGC have any legal interest in enforcing the rights asserted in this action.

The want of interest raised by the exception of no right of action relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir. 1967); Curry v. Iberville Parish Sheriff's Office, 378 So.2d 159 (La. App. 1 Cir. 1979).

We have found that Budd was the “lowest responsible bidder” on this public works contract. We have also found that the Council arbitrarily rejected Budd’s low bid. Therefore, under the explicit holding of Haughton Elevator Division v. State, Division of Administration, supra, Budd had the standing to sue to enjoin the Council from the execution of this public works contract.

A more serious question arises with respect to whether AGC had the standing to sue for injunctive relief in this matter. Ap-pellees allege in their petition that AGC is a taxpayer of the State of Louisiana and a Louisiana corporation whose membership is composed, inter alia, of contractors engaged in the construction of projects of the type and kind which is the subject matter of this lawsuit, including members domiciled and doing business in Rapides Parish, Louisiana. It is further alleged that AGC is keenly concerned with maintenance of the integrity and public faith and confidence in the public bid law process in this State.

There was evidence at the trial of this matter that Budd pays AGC $450.00 a year as membership dues plus Vs of 1% of the contract price, up to a million dollars, on public and municipal contracts awarded to Budd. Therefore, AGC would have received Vs of 1% of the contract price here had Budd been awarded this public works contract. The trial court, over objection by appellants that it was beyond the pleadings, allowed evidence to be introduced to show that AGO was also a taxpayer of the City of Alexandria, as well as a taxpayer of the State.

The trial court, in overruling appellants’ exception of no right of action, found no merit to appellants’ contentions that AGC lacked the necessary standing to sue for injunctive relief. Our review of the record establishes that such a finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the above and foregoing reasons, the judgment of the trial court granting the preliminary injunction requested by appel-lees is affirmed.

All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

LABORDE, J., concurs in the result.

      . Carson v. Thomas, 342 So.2d 1219 (La.App.2 Cir. 1977) and Intrastate Pipeline Corporation v. Pontchartrain Motor Company, Inc., 254 So.2d 693 (La.App.4 Cir.1971) clearly support our decision that this Court has no power to hear an appeal from an order relating to a temporary restraining order under the provisions of LSA-C.C.P. Article 3612. Carson v. Thomas, supra, found that a decree for a money judgment for the wrongful issuance of a temporary restraining order may be appealed from, even though it is coupled with an interlocutory order. Intrastate Pipeline Corporation v. Pontchartrain Motor Company, Inc., supra, found that plaintiff had a right to appeal from the denial of a preliminary injunction, even though the dissolution of a temporary restraining order is contained in the same judgment.

        Town of Logansport v. Copley, 313 So.2d 901 (La.App.2 Cir. 1975) simply held that the issues of whether a temporary restraining order was wrongfully issued and the right of the party restrained to damages and attorney’s fees for the wrongful issuance remained viable issues for consideration by the trial court, even though the TRO had had expired by its own terms while the trial court had taken the motion to dissolve it under advisement.

       For the latest expression of this Court on this issue, see Ducote v. Couvillion, 401 So.2d 621 (La.App. 3 Cir. 1981).

      .

      . "2.05 Preparation of Proposal: The bidder must submit his proposal on the prescribed form and the blank spaces in the proposal must be filled in correctly, where indicated, for each and every item for which a quantity is given, and the bidder must state the prices (written in ink, both in words and numerals), required to submit a bid. The bidder will be for which he proposes to do each item of the work contemplated.
      Bidders are required to examine carefully the proposal form before submitting same in order to see that a unit price is submitted on each and every item on which all bidders are responsible for all errors or omissions in his proposal and if a bidder fails to submit a unit price for any item or items upon which a bid is required, his proposal shall be completed by the insertion of the lowest unit price or prices submitted for the item or items in any regular bid on the project. Such a unit price or prices shall be used in the contract, if awarded, as if originally submitted. In case of a confíict between the written unit price and the unit price in figures, the written unit price shall govern. Should the written unit price be illegible, the unit price in figures shall govern. The bidder shall sign his proposal correctly. If the proposal is made by an individual, his name and post office address must be shown. If made by a firm or partnership, the name and post office address of each member of the firm or partnership must be shown. If made by a corporation, the person signing the proposal must show the name of the State under the laws of which the corporation was chartered and the name, titles, and business address of the president, secretary and treasurer and, if required, the one signing the proposal as the agent of a firm or corporation must furnish legal evidence that he has a rightful authority to such signature, and that the signature is binding upon the firm or corporation. Proposals must be signed in ink.” (Emphasis provided.)