text:
    SCOTT TRUCK & TRACTOR COMPANY OF ALEXANDRIA, INC., Plaintiff-Appellant, v. Billy W. DANIELS, et al., Defendants-Appellees-Intervenors.
    No. 8252.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria for plaintiff-appellant.
    Voelker, Ragland, Brackin & Crigler, Charles R. Brackin, Lake Providence, for defendants-appellees-intervenors.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

This ranking case presents a contest between a Texas security interest held by plaintiff-vendor and a Louisiana lessor’s privilege held by intervenor-lessors. These two competing interests involve an International Harvester 815 Combine. The lower court maintained the right of priority claimed by the Louisiana lessors. We reverse.

On May 23, 1977, plaintiff-vendor, Scott Truck & Tractor Company of Alexandria, Inc., (the Company) sold the combine in question to Billy W. Daniels (Daniels). Daniels at that time was a resident of Rap-ides Parish, but was also conducting farming operations at three locations, one of which was in Newton County, Texas.

At the time of the sale, Daniels declared to the Company that he was transporting the combine to his 1,456 acre farm in Newton County, Texas for use in his rice and soybean operations conducted there. Because the combine was to be taken to and used in Texas, the Company and Daniels entered into a Retail Installment Contract which, it is stipulated, constitutes a valid security agreement under the Uniform Commercial Code which Texas has adopted.

On September 24, 1976, prior to the sale and perfection of the Texas security device, intervenor-lessors, James Domengeaux, Bob Wright, and G. L. Dozier, as owners of and doing business as Meade Plantation (Meade Plantation) entered into a written lease agreement with Daniels. The terms of the lease agreement provided that lessors would lease the large tract of land located in Rap-ides and Grant Parishes to Daniels for farming purposes for a one year period commencing the first day of January, 1977, and ending at midnight on December 31, 1977.

Daniels defaulted in his obligations to Meade Plantation and to the Company. In December, 1977, Meade Plantation caused a writ of sequestration to issue ordering seizure of all movable property located on Meade Plantation. Included among that property was the combine at issue here.

The Company filed suit against Daniels on December 29, 1977, and obtained a judgment recognizing its lien on the combine. Meade Plantation intervened seeking recognition of its privilege as superior in rank to the Company’s. The combine was sold and the proceeds placed in an interest bearing account where they remain pending resolution of this dispute.

The issue posed by this appeal is whether, under the facts of the present case, the Texas security agreement primes the Louisiana lessors’ privilege. The trial judge held that it did not and rendered judgment recognizing the lessors’ privilege as the superior one. In reaching that conclusion, the trial judge reasoned that since the sale between the Company and Daniels involved Louisiana residents and delivery took place in Louisiana, the entire transaction, i. e., the sale and the security agreement, is subject to and governed by Louisiana law. The trial judge then reviewed Louisiana’s chattel mortgage laws, found that the foreign security device perfected by the Company was not in compliance with that law, and on that basis held for Meade Plantation.

The Company urges trial court error in holding that application of Louisiana’s chattel mortgage law is mandated under the facts stressed by the court, namely, that this was a Louisiana sale with a Louisiana vendor, Louisiana vendee, and delivery was in Louisiana. In support of its contention, the Company cites LSA-C.C. art. 10, in particular, paragraph two of that article. That article provides:

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.
But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where such acts are to have effect.”

Upon our review of the record, we are convinced that the Company and Daniels intended the sale and security device to have effect in Texas. Two key employees of the Company, Charles E. Payne and Sam B. Adams, testified on behalf of the Company. Payne, who manages the Company, stated that he personally negotiated with Daniels for the sale of the combine. He testified that Daniels told him that he was taking the combine to Texas for use in his farming operations there. Payne also testified, of his own personal knowledge, that Daniels himself picked up the combine in Alexandria, Louisiana, and hauled it to Texas. The testimony of Adams, the Company’s credit manager corroborates Payne’s testimony. In addition, Adams stated that he chose to comply with Texas law and utilize the UCC security agreement in reliance on Daniels’ statements that the combine was to be transported to and maintained in Texas.

Also, from the fact that in other negotiations and transactions entered into between these same parties, where the equipment was intended for use in Daniels’ Louisiana farm operations, the parties utilized Louisiana sales and security agreements, we glean that the parties intended this particular sale to have effect in Texas.

In sum, it is the law of the state in which the parties intend their contract to have effect that governs. Thus, the fact that the parties are residents of another state or that delivery occurs in another state is irrelevant. In this instance, Daniels and the Company contemplated removal of the combine to Texas and on that basis executed a sale and security agreement in conformity with Texas law. Intending the contract to have effect in Texas, Texas law applies and under that law the security agreement is a valid one.

It is well settled that mortgages, unrecorded in Louisiana but valid and enforceable in the states where executed, will be recognized against third parties in this state, unless the mortgaged property was removed to this state with the knowledge or consent of the mortgagee. Jones v. Bradford, 353 So.2d 1348 (La.App. 3rd Cir. 1977); Pecora v. James, 150 So.2d 90 (La.App. 4th Cir. 1963); General Motors Acceptance Corporation v. Nuss, 195 La. 209, 196 So. 323 (1940); and G. F. C. Corporation v. Rollins, 221 La. 166, 59 So.2d 108 (1952).

The record contains ample proof that the combine was brought to this state without the knowledge or consent of the Company. In paragraph five of its petition for recognition of its privilege, the Company specifically pleads that the combine was removed to Louisiana without its consent. Moreover, both Payne and Adams testified that they did not know that Daniels had removed the combine from Texas back to Louisiana. Meade Plantation seeks to refute these contentions by showing that since the Company knew Daniels conducted farming operations in Louisiana, it should therefore not be allowed to argue it did not know of or consent to the property’s removal here. We disagree.

In conclusion, we hold that because the Texas security agreement is in due form and filed as that law directs before the combine was returned to the leased premises in this state, it primes the lessor’s privilege.

For the above reasons, the judgment of the lower court is reversed and set aside. It is now ordered, adjudged and decreed that plaintiff-vendor’s privilege be recognized as superior in rank to the lessors’ privilege held by Meade Plantation. All costs to date are assessed against Meade Plantation.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: BIENVENU, Judge.

license: Public Domain

text:
    Bernice Hardy COURVILLE, Plaintiff-Appellee, v. Percy COURVILLE, Defendant-Appellant.
    No. 8264.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Blackwell, Chambers, Hobbs & Henry, James A. Hobbs, West Monroe, for defendant-appellant.
    Stanley P. Babin, Lafayette, Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for plaintiff-appellee.
    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.

This is an appeal from a judgment on a rule to increase child support payments. The only issue on appeal is whether the trial court erred in overruling defendant’s exception of improper venue.

The record shows that on October 16, 1970, plaintiff, Bernice Courville, and defendant, Percy Courville, were separated from bed and board by a judgment rendered by the 15th Judicial District Court. In the judgment, plaintiff was awarded the permanent care, custody and control of the minor children of the marriage, and defendant was ordered to pay child support in the sum of $300.00 per month.

On August 15,1980, plaintiff brought this rule to increase defendant’s child support payments. Her petition contained the following allegations:

“Defendant was ordered to pay mover alimony at the rate of THREE HUNDRED AND NO/100 ($300.00) DOLLARS monthly for the support and maintenance of her five minor children by the judgment rendered and signed in this proceeding on October 16, 1970.
2.
By judgment of the 4th Judicial District Court of the Parish of Ouachita, State of Louisiana, rendered on April 17, 1973, the defendant was ordered to pay mover the sum of FOUR HUNDRED AND NO/100 ($400.00) DOLLARS per month for the care, support and maintenance of the five minor children.
3.
On April 4, 1978, the 4th District Court for the Parish of Ouachita ordered the defendant to pay mover the sum of THREE HUNDRED AND NO/100 ($300.00) DOLLARS per month for the support of her minor children, Kevin James Courville and Mark Anthony Cour-ville, with the provision that upon Mark Anthony Courville’s reaching the age of 18 years, the child support would be reduced to the sum of $175.00 per month.
4.
Mover is presently receiving the sum of ONE HUNDRED SEVENTY-FIVE AND NO/100 ($175.00) DOLLARS per month for the support of her minor son, Kevin James Courville.”

Defendant filed an exception of improper venue alleging the following:

“This Honorable Court is not the proper venue to alter and amend the judgment rendered by the Fourth Judicial District Court in and for Ouachita Parish, Louisiana, and Exceptor herein excepts to the venue herein.”

According to the minutes of the court, counsel argued the merits of the exception in chambers without introducing evidence. After hearing the arguments, the district court overruled the exception, noting in the minutes that “the original suit fixing support payments was filed in Lafayette Parish and later actions were filed in another jurisdiction.”

Defendant applied to this court for certio-rari or a writ of review. Since the record did not contain anything contradicting the trial court’s determination that the original suit fixing support payments was filed in Layfayette Parish, the writ was denied for the following reasons:

“We find no error in the trial court’s judgment which complies with the venue requirements set forth in Dupuy v. Du- puy, 357 So.2d 23 (La.App. 3rd Cir. 1978), and cases cited therein.”

Following a hearing on the rule, the district court rendered judgment in plaintiff’s favor ordering defendant to pay child support in the sum of $240.00 per month. From that judgment, defendant appeals.

On appeal, defendant argues that contrary to this court’s conclusion in denying his writ application, the trial court’s judgment overruling his exception of improper venue does not comply with the venue requirements set forth in Dupuy v. Dupuy, supra. He alleges that subsequent to the initial award of child support by the 15th Judicial District Court, the 4th Judicial District Court rendered a judgment of divorce in which it made an award of child support. Citing the decision of our Supreme Court in Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956), he argues that this judgment of divorce abated the judgment of separation from bed and board in which the 15th Judicial District Court made the initial award. He further argues that since the judgment of divorce rendered by the 4th Judicial District Court is the only viable judgment awarding child support, that court retains exclusive jurisdiction for modifying its decree under the holding of Dupuy v. Dupuy, supra.

In furtherance of his argument that under Thornton v. Floyd supra, a judgment of final divorce abates a prior judgment of separation from bed and board, defendant also refers us to Dubois v. Breaux, 341 So.2d 68 (La.App. 3rd Cir. 1976), in which this court stated:

“Our law is settled that a judgment of final divorce abates and renders ineffective a prior judgment of separation from bed and board and all incidents flowing therefrom, including the fixing of alimony and child support and the awarding of custody of the children, except that the wife retains the right to enforce payment of the amount of alimony or child support which accrued prior to the date of the final divorce decree. Thornton v. Floyd, 229 La. 237, 85 So.2d 499; Bozarth v. Bozarth, 199 So.2d 544 (La.App. 4 Cir. 1967); Broussard v. Menard, 316 So.2d 485 (La.App. 3 Cir. 1975); Manuel v. Broderson, 298 So.2d 333 (La.App. 3 Cir. 1974); Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972).”

See also, Vining v. Vining, 389 So.2d 886 (La.App. 4th Cir. 1980); Dugas v. Dugas, 374 So.2d 1278 (La.App. 3rd Cir. 1979); George v. George, 347 So.2d 927 (La.App. 3rd Cir. 1977).

Defendant also argues that under the holding of Dupuy v. Dupuy, supra, the court rendering the initial judgment fixing child support payments does not retain exclusive jurisdiction to decide the issue of child support when its decree has become abated by a later judgment rendered by another court; and that it is clear from the language of the opinion in Dupuy that a court does not become vested with exclusive jurisdiction to decide the issue of child support simply because it was the first court to consider the subject matter.

Defendant’s arguments are premised on a judgment of divorce being rendered in the Fourth Judicial District Court subsequent to the rendition of a judgment of separation in the Fifteenth Judicial District Court. When defendant made his writ application, however, there was nothing in the record to show that the awards made by the 4th Judicial District Court were incidental to a judgment of divorce. After reviewing the record once again, we find that that is still true.

Contrary to defendant’s assertion, the record does not clearly show that a divorce decree was rendered by the 4th Judicial District Court. The only reference to this alleged decree that we can find in the record is an allegation that defendant made in an exception of improper venue that he filed in response to a rule brought by plaintiff in 1972. Under LSA-C.C.P. Art. 852, defendant’s allegation must be considered as having been denied, however, and the record does not show that any evidence was ever introduced to prove it.

In view of this lack of evidence, we are constrained to conclude that defendant has not borne his burden of proving the facts on which he bases his exception. However meritorious his arguments might be as they apply to that set of facts, we nevertheless are unable, under the circumstances, to consider their worth. Thus, we cannot agree with his argument that the trial court erred in overruling the exception.

For the above and foregoing reasons, the judgment appealed by defendant is affirmed at his cost.

AFFIRMED.

CUTRER and STOKER, JJ., concur.


author: CUTRER, Judge.

text:
    Nancy Whipple OLMSTEAD, Plaintiff-Appellant, v. Gabriel PERRIO, Jr., and Hazel Duhon, Defendants-Appellees.
    No. 8265.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Bennett J. Gautreaux and John K. Hill, Jr., Lafayette, for plaintiff-appellant.
    J. M. Wooderson, Lafayette, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

This suit was brought for a reduction of the price of an immovable. The plaintiff, Nancy W. Olmstead, purchased a house from defendants, Gabriel Perrio, Jr., and Hazel Duhon. Plaintiff subsequently filed suit seeking a reduction in price alleging that the heating and air conditioning unit was defective and that extensive deterioration necessitated replacement of the sills, floor joists and subflooring of the house. The trial court rendered judgment in favor of defendants dismissing plaintiff’s suit. We reverse.

The issues on appeal are:

(1) Whether the air conditioning unit was defective and, if so, whether such defect would have been revealed by a simple inspection;
(2) Whether the substructure (sills, floor joists and subfloor) of the house was defective and, if so, whether such condition would have been revealed by a simple inspection;
(3) Whether the plaintiff waived the implied warranty of fitness insofar as the substructure was concerned; and
(4)In the event of recovery, whether plaintiff should be awarded attorney’s fees.

After the death of her husband, plaintiff moved from the state of Michigan to Lafayette, Louisiana. After her arrival she began looking for a house to purchase. The defendants had their house for sale for the price of $45,000.00. After looking at the defendants’ house, plaintiff decided to purchase same. On August 24, 1979, plaintiff signed a purchase agreement which was on a form bearing the name of Don Gautreaux Realty, Inc. Apparently this was the agent handling the transaction.

On September 13, 1979, plaintiff and defendants executed the act of sale of the house. She moved into the house and during the following month, October 1979, the air conditioning and heating unit quit functioning. Approximately two weeks after the sale was consummated plaintiff had a termite inspector to examine the house for the presence of termites. No termite damage was found but the inspector reported to plaintiff that there was extensive deterioration of the sills, floor joists and the sub-floor. The defendant, Gabriel Perrio, Jr., was notified of the air conditioning and substructure problems but refused to remedy same. Plaintiff then filed suit for a reduction of the price of the house, for the amount necessary to replace the air conditioning and heating unit, and the repair of the substructure.

The general principles governing the disposition of the issues herein are set forth by this court in the case of Hunter v. Wilson, 355 So.2d 39, 41 (La.App. 3rd Cir. 1978), writ den., 357 So.2d 1154 (1978), where this court stated as follows:

“The law provides that the seller warrants the thing sold against hidden defects. LSA-C.C. arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. LSA- C.C. art. 2521. If the thing sold has a hidden defect which renders it either absolutely useless, or its vice so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice, the purchaser may avoid the sale. LSA-C.C. art. 2520. Whether the defect in the thing sold be such as to render it useless, or whether it be such as merely to diminish its value, the purchaser may limit his demand to the reduction of the price. LSA-C.C. arts. 2541, 2542, 2543. In the instant suit plaintiff has demanded only a reduction of the price.”

We will examine the issues herein with those general principles in mind.

DEFECTIVE HEATING AND AIR CONDITIONING UNIT

Plaintiff testified that in October 1979, shortly after she purchased the home, she noticed there was a water leak requiring her to put buckets under the furnace area to catch the water.

Plaintiff called a service company, Marine Electric, to check the unit. This service company sent Barry Duplechain, an employee who operated the air conditioning division of the business. Mr. Duplechain testified that upon examination of the heat exchanger, he found a hole in same. Also, he found evidence of a leak in the evaporator coil which would also cause damage to the unit. This witness stated that the defective condition of the unit had existed for at least a year. As a result of the conditions that he found, Mr. Duplechain removed the existing unit and installed a new one. The cost of this replacement was $2,490.00. The testimony of Mr. Duplechain was the only expert testimony presented in regard to the condition of and the replacement of the air conditioning and heating unit.

Defendant, Gabriel Perrio, Jr., testified that he had never had any trouble with the air conditioning unit. He did say that, approximately once a year, he would have to unplug the drain line that drains the water discharged from the unit.

The evidence is clear that the air conditioning unit was defective at the time of sale. The defect was such that the unit had to be replaced by a new unit. The plaintiff would be entitled to a reduction of the price of the home by the amount expended for replacement of the unit unless the defect could have been discovered by a simple inspection. Hunter v. Wilson, supra; LSA-C.C. art. 2521.

Mr. Duplechain stated unequivocably that a layman could not have ascertained the existence of the hole in the heat exchanger by a casual inspection. Also, he stated, that even though the carpet in the unit room showed evidence of water damage, it would be difficult for a layman to determine the cause of such water damage. This testimony is undisputed and reflects that plaintiff could not have discovered the defective condition of the unit by a simple inspection. Under the provisions of the legal principles cited at the beginning of this discussion, the unit contained a redhibitory defect and plaintiff would be entitled to a reduction in price accordingly. The trial court erred in not allowing this reduction of purchase price.

DEFECT OF SUBSTRUCTURE

(Sills, Floor Joists and Subfloor)

The plaintiff testified that before she signed the purchase agreement she had noticed that the floor was sinking in one area. She pointed this out to Gabriel Perrio, Jr., and he told her that a pillar was leaning and a sill needed changing. He stated that he would make the repairs and level the floor. After the sale was executed, defendant did change the sill and level the sinking area. Following this, plaintiff called a termite inspector to examine the house for the existence of termites. Such inspection was made. The inspector found no termites but notified the plaintiff that the sills, floor joists and subfloor was deteriorated or rotted.

In lieu of any expert testimony on the condition of the substructure, the attorney for the plaintiff introduced two reports and estimates. The defendants’ attorney agreed that, if the persons signing the reports and estimates were called, their testimony would be in accordance with such reports.

The first report and estimate was made by Able J. Walker. The report contains the letterhead of Acadian Home Improvement. The pertinent part of this report reads as follows:

“At the request of John Rixie Mouton (Attorney) an inspection was made at the above address to ascertain the condition of the home on this property.
“Inspection reveals that approximately eighty percent of the wood sills, floor joists and subflooring is dry rotted. Sills and floor joists are sagging causing an unlevel floor.
“This house will have to have all the damaged sills, floor joists and subflooring replaced and the entire floor area returned to a level condition. Doing this will require removing all finish [sic] floors and installing new floors if present floors can not be salvaged.” * * *
“Repairs of this type are very expensive and it is estimated that the type of repairs needed to place this house in a good safe condition will cost approximately Twenty Five Thousand Dollars ($25,000.00).
“The heating and cooling system was found, by others, to be defetive [sic] and has been replaced. NOTE!! This condition did not occur in the last two years; this is caused by improper cross ventilation in the crawl space under the house. It is my recommendation that proper ventilation be installed in the crawl space under this house.”

The second report was signed by Gregory M. Pickett, Pragmatic Builders, Lafayette, Louisiana. The pertinent part of this report reads as follows:

“I found the area under the house to be quite damp. This was not due to any recent rainfall due to the fact that no measurable rain had fallen in well over two weeks. The moisture under the house was present due to inadequate ventilation of the crawl space under the house. The entire circumference of the house is sealed by either a brick veneer wall or carport slab. Only three small access holes on one side of the house, each measuring no more than two foot X two foot, allow the moisture to escape. This offers virtually no escape for the moisture, which has resulted in extensive formation of wood decay.
“I found several structural parts completely rotted through due to wood decay caused by excessive moisture. This included the main supporting 4X6 sills, 2 X 6 floor joists, and tongue and grove [sic] subflooring above the floor joists. The area around the air conditioning closet, and the living room and bedroom adjacent to the air conditioning closet appeared to suffer the heaviest deterioation [sic]. The wood decay however was not concentrated to any one area, but on all the wood parts under the house.”
* * * * * *
“It is obvious that the wood decay problem is in an advanced stage in no less than the entire bedroom and living room area adjacent to the air conditioning closet. The rest of the floor area has wood decay fungus growing on it, but appears not to be completly [sic] rotted through. This problem however will only worsen until the moisture problem is eliminated and the fungus treated. Repair to the areas of advanced wood decay would in volve, in my opinion, complete replacement.”

Pickett gave no price for the repairs.

The undisputed evidence quoted above reveals a substantial deterioration of the substructure of the house. This condition had clearly preceded the sale in question. The existence of such a redhibitory vice would be grounds for a reduction in price if such condition could not be discovered by simple inspection.

The plaintiff testified that, before the sale, her brother looked through the vent holes in the brick chain wall around the bottom of the house, but could not see any deterioration of the substructure. Neither plaintiff nor her brother crawled through the vent holes to go under the house to make a more definitive inspection. Such redhibitory vice could be discovered only by a thorough inspection. Such condition could not be made by simple inspection. This position is buttressed by the testimony of defendant, Gabriel Perrio, Jr., who testified that he had replaced the sill to level the floor after the sale with plaintiff was consummated. He stated that as he worked under the house replacing the sill he did not see any deterioration of the other portions of the substructure.

In the case of Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963), the court stated that the term “simple inspection” relieves the buyer of examining the inner or hidden parts of the objects of the sale for the purpose of ascertaining “latent defects.” The defective condition of the substructure of this house was discernable only by crawling under the house and could not be perceived by inspection inside the premises. Under the circumstances, the defective condition could not be discovered by a simple inspection. The condition was a hidden defect. See: Kolwe v. Owens, 357 So.2d 1333 (La.App. 4th Cir. 1978).

The fact that plaintiff saw that the floor was unlevel did not put her on notice of such an extensive defective condition. This is especially true in view of the fact that Perrio assured plaintiff that the unlevel condition was caused by a sunken pillar and that he would change the sill and remedy the condition.

The defective condition of the substructure would entitle the plaintiff to a reduction of the price unless it can be said that she waived such warranty. This leads us to the third issue in this case.

DID PLAINTIFF WAIVE THE IMPLIED WARRANTY OF FITNESS?

The plaintiff testified that, at the time the purchase agreement was signed, she stated that she was concerned about the unlevel condition of the floor and also that she wanted to check the insulation in the attic. As a result of this conversation, the following clause was inserted into the purchase agreement:

“This sale is contingent upon inspection to show subfloor to be in good condition and also that there’s ample insulation in the attic.”

In his reasons for judgment, the trial judge stated as follows:

What the Court is trying to say is that in both instances of the complaints there was a remedy for the plaintiff/buyer to have the property inspected and demand these items to be done prior to the consummation of the sale, which was, according to the Agreement to Purchase or Sell, sale to be on or before September 24, 1979. . . . With those options available to the plaintiff, the plaintiff, the Court finds, was remiss in not taking advantage of those clauses in the contract and delaying the consummation of the sale until such time as a thorough inspection had been made.”

The net effect of the trial court’s reasoning is that the plaintiff’s failure to have a thorough inspection of the substructure, before the act of sale, operated as a waiver of implied warranty under the clause inserted in the purchase agreement. The trial court erred in this ruling.

This court, in the case of Matt v. Laperouse, 371 So.2d 1284, 1285 (La.App. 3rd Cir. 1979), observed as follows:

“Our Supreme Court in Rev v. Cuccia. 298 So.2d 840 (La.1974), said the following with regard to the sale of products with hidden defects:
‘In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. Civil Code Articles 2475, 2476, 2520; Media Production Consultants. Inc. v. Mercedes-Benz of North America. Inc.. 262 La. 80, 262 So.2d 377 (1972). The seller, of course, can limit this warranty by declaring to the buyer the hidden defects at the time of the sale, Article 2522, or can otherwise limit his oblierations as seller, providing he do so clearly and unambiguously. Article 2474.’ ...” (Emphasis ours.)

A mere reading of the clause inserted in the purchase agreement cannot be considered as a clear and unambiguous waiver of implied warranty. Further, as plaintiff explained, the clause was inserted primarily to draw defendants’ attention to the fact that the floor was sagging and defendants would level same as agreed. This testimony is not disputed. The clause does not provide whether the inspection was to be made before or after the act of sale. In this case the inspection was made after the sale was consummated. The deteriorated condition was found and it cannot be said that the clause had the effect of waiving the defendants’ statutory implied warranty.

ATTORNEY’S FEES

We reject the plaintiff’s demands for attorney’s fees. There has been no showing that the defendants were aware of these defects. The defendants knew that the drain line for the air conditioner would become plugged at times but a layman would not be apprised of the serious defect in the system by the existence of this condition. The defendant, Mr. Perrio, also had been beneath the house to repair one bad sill but he expressly denied making an examination of, nor did he see any structural problems beneath the house. We note that the space beneath the house was almost completely walled in and consequently the lighting would be extremely poor. Under these circumstances the deteriorated condition of the sills, floor joists and subflooring would not be obvious to anyone who ventured beneath the house. The vendor’s good faith precludes the recovery of attorney’s fees. Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975); LSA-C.C. arts. 2545 and 2547.

The plaintiff would be entitled to a reduction of the purchase price of the house by the amount needed to make the repairs to the substructure and also for the replacement of the air conditioning unit. As we have previously set forth, the undisputed estimate for repairs for the house was $25,-000.00 and the invoice for the installation of the air conditioning and heating unit was $2,490.00. The price of the house will be reduced by $27,490.00.

For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered herein in favor of the plaintiff-appellant and against defendants-appellees in the amount of $27,490.00. The costs of this appeal are assessed to defendants-ap-pellees.

REVERSED AND RENDERED.

      . Also, the purchase agreement contained the following provision regarding mechanical equipment:
      “The seller agrees that all mechanical equipment, plumbing, and wiring contained in or on the premises and subject to this agreement, will be in good operating order upon delivery of possession or title, whichever is first. Should an inspection of the premises, including equipment therein, be required, such inspection shall be at the sole cost of Buyer. Should repairs be made, they will be made at the expense of the Seller." (Emphasis ours.)


author: DOMENGEAUX, Judge.

text:
    W. F. HENRY, Jr., Individually and as Trustee For J. A. and Martha Davis Trust, et al., Plaintiffs-Appellants-Appellees, v. The BALLARD & CORDELL CORPORATION, et al., Defendants-Appellees-Appellants.
    No. 8267.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Jones, Jones & Alexander, Jerry G. Jones, Cameron, for plaintiffs-appellants-appel-lees.
    Gene Lafitte and Lawrence R. Simon, Jr., of Liskow & Lewis, Lafayette, for defendants-appellees-appellants.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

Certain gas leases executed in the 1950s and early 1960s provided that lessors would receive as royalty a percentage or fraction of the market value of the gas sold. Lessees have paid royalty amounts based upon the amounts they have received from the interstate purchaser of the gas under the terms of a twenty year gas sales contract executed in 1961. Lessees contend that the purchase price represented the fair market value of natural gas in 1961, and that that value is the one plaintiffs’ royalties should be based upon. Lessors claim that their royalties are to be calculated and paid on the basis of the current market value of natural gas, not on the basis of the price received by lessees for the gas.

The issue we must decide: Is the amount due the lessors as royalty under these leases to be based upon the prevailing market value at the time the gas was committed to the purchaser by the lessees under a long term gas sales contract, or is the royalty to be based instead upon the current market value determined on a daily basis the moment gas is produced and/or delivered to the purchaser?

This issue has never been decided by a court of this state and its ultimate resolution is certain to have a substantial impact upon the parties involved as well as many other similarly situated lessors and lessees.

The mineral leases involved in these two consolidated cases affect property in the Calcasieu Pass Field in Cameron Parish. The leases, and the various plaintiffs claiming as lessors thereunder, are as follows:

(a) “Davis Lease No. 1” dated March 19, 1953;
(b) “Davis Lease No. 2” dated December 10, 1960;
(c) “Davis Lease No. 3” dated June 22, 1964; and
(d) “Rogers Lease” dated September 7, 1962.

Plaintiffs in No. 8267 suing as lessors under all three Davis leases are: W. F. Henry, Jr., as Trustee for J. A. & Martha Davis Trust for Mary Henry, Wilma Guthrie, Furman Davis, and Lonnie Davis, Mary Davis Henry, and Wilma Guthrie. ■

Plaintiffs in No. 8268 suing as lessors under the Rogers lease are: Milford A. Rogers, J. B. Jones, Jr., Faye Jones, Jerry G. Jones, Jr., and Jerry G. Jones representing the minor child Lori Sue Jones.

The pertinent gas royalty provisions of these four leases provide as follows:

(a) Davis Lease No. 1:
“(b) on gas . . . sold or used off the premises .. . the market value at the wells of one-eighth of the gas so sold or used ...”
(b) Davis Lease No. 2:
“(b) one-sixth (Vbth) of the market value of the gas sold or used . . . . ”
(c) Davis Lease No. 3:
“(b) 18.5% of the market value of the gas sold or used . . . . ”
(d) Rogers lease:
“(b) On gas . . . sold or used off the premises .... the market value at the well of one-fourth (Vith) of the gas so sold or used . . . . ”

The cases were tried on a consolidated basis without a jury on April 21 and 22, 1980, and the trial court rendered a single judgment disposing of both cases. The judgment was rendered in favor of the above-named plaintiffs-lessors, and against the following defendants in both suits: Wiley P. Ballard, Jr., Robert M. Cordell, Lay Exploration Corporation, the George Williamson Estate, Herman W. Lay as Trustee of William B. Oliver Trust, Herman W. Lay as Trustee of Agnes Cluthe Oliver Trust, Arthur L. Montgomery, Shenandoah Oil Corporation, Karl F. Hagemeier, R. E. Kel-lerman, Millcreek Oil Company, Miss Sondra Press, Hal B. Wallis, Gwendolyn P. Weiner, Arthur 0. Wellman, Ted Weiner Oil Properties, Charles Weiner, Mary Don Weiner, Diana Weiner, Stanley Weiner, Charles Weiner Trustee, Texas Crude Oil Company, Texas Crude, Inc., and H. J. Lasi-eur, in proportion to their ownership interests in the various leases. In addition, judgment was rendered against Robert R. Durkee, Jr., in No. 8267 only.

The defendants have appealed from that portion of the judgment requiring them to pay additional royalties under the Davis and Rogers leases. The plaintiffs have appealed from the court’s denial of their claim for double damages under La. R.S. 31:140.

TRIAL COURT DECISION

The trial court held that the market value provisions of the royalty clauses in the three Davis leases and the Rogers lease require that royalties be settled on the basis of current sales, including sales made in the intrastate market through November, 1978, and that thereafter, market value is determined by reference to Section 109 of the Natural Gas Policy Act of 1978. Based on this holding, the court ordered defendants to account to plaintiffs from September, 1976, through the date of judgment for the difference between the proceeds actually received and the “market value” of the gas attributable to the fractional share of the plaintiffs. The court also ordered that henceforth, royalties must be based on the prices published by the Federal Energy Regulatory Commission (FERC) applicable to Section 109 under the Natural Gas Policy Act of 1978.

In its opinion the district court adopted this definition of market value:

“. .. the market value of a thing is the price which it might be expected to bring if offered for sale in the market.”

Defendants contend that the plaintiffs’ royalties should be calculated by using the 1961 market value of natural gas since that is when the gas sales contract was executed between the Ballard & Cordell Corporation (Ballard and Cordell), the operator of the leases, and the American Louisiana Pipeline Company (later to become the Michigan Wisconsin Pipeline Company), the interstate purchaser of the gas production. According to defendants, the sale was complete at that time because there existed an agreement for the object and price, although the object was not yet delivered nor the price paid. La. C.C. Art. 2456.

The trial court rejected defendants’ argument, relying upon the principle that the sale of minerals still in the ground is no sale at all; it is merely the creation of a real right. The court concluded that a fuga-cious mineral becomes subject to a true sale only when it has been reduced to possession; since natural gas, unlike crude oil, is never stored, it cannot be reduced to possession (and thus cannot be subject to ownership or the object of a sale) until it is actually in the defendants’ pipeline; only then, after it is in the pipeline, can the market value of that particular gas be determined; and since this reduction to possession occurs on a daily basis, the relevant comparison would be to sales occurring at the same time.

Defendants argued in the alternative that if “market value” in plaintiffs’ leases meant current market value determined on a daily basis as the gas is reduced to possession, then the only comparable sales which should be considered to establish the current market value are sales of gas committed to the federally regulated interstate market since this gas was sold in that market; sales of gas in the unregulated intrastate market should not be considered.

Defendants proposed this argument because prices paid by intrastate purchasers of natural gas had, from the early to the late 1970s, far outstripped the maximum allowable price for interstate gas set by the FERC. If the lessors were adjudged to be entitled to additional royalties, and the current market value of gas destined for the interstate market was determined by higher prices paid for gas on the intrastate market, then the lessees would be forced to pay as royalty for lessors’ fractional interest a substantially higher price than they would if only interstate sales were considered.

The court rejected this argument too and held that the current market value should be determined by sales of gas in the intrastate market as well as the interstate market. The court reasoned that use of the restricted interstate market as the sole criterion for determining the “market value” standard provided by the leases would amount to a re-writing of the leases.

We reverse the trial court judgment. We find that the parties intended for the royalties to be governed by the market value of natural gas which prevailed in 1961 when the gas was committed to the purchaser under the gas sales contract rather than by the current market value, to be determined on a daily basis as gas is produced and/or delivered to the purchaser. Although we agree with the trial court that the market value of a thing is the price which it might be expected to bring if offered for sale in the market, we do not agree with its conclusion that the term market value, standing alone, clearly means current market value.

We need not reach and hence will not consider whether sales of gas in the intrastate market should be considered when determining the market value of gas committed to the interstate market. We also need not reach and will not consider the plaintiff’s claim for double damages under La. R.S. 31:140 since we decide they are not entitled to any damages.

HISTORICAL OVERVIEW

According to unrefuted evidence presented by the defendants, including expert testimony, natural gas was very plentiful in 1961 when Ballard & Cordell sought a market for the gas in the Calcasieu Pass Field. Because of the field’s geographically isolated position, there was but one economically feasible market for the gas. This market was the American Louisiana (now Michigan Wisconsin) Pipeline Company, an interstate purchaser of natural gas. However, because of the abundant supplies of natural gas existing at the time, a buyer’s market prevailed. Ballard & Cordell was essentially offered a “take it or leave it” contract by American Louisiana which included a provision that Ballard & Cordell construct a pipeline from the Calcasieu Pass Field to connect with an American Louisiana pipeline one mile to the north.

Acting as a prudent operator obliged to market the natural gas if a market exists, Ballard & Cordell agreed to sell the gas to American Louisiana as per the latter’s offer. The agreement was to remain binding for a maximum period of twenty years from the effective date of September 27, 1961. American Louisiana agreed to pay 18.25 cents per 1,000 cubic feet of gas (mcf) during the first five-year period, commencing upon the date it first took or was obligated to pay for the gas; 20.75 cents per mcf during the second five year period; 23.25 cents per mcf during the third five year period; and 25.75 cents per mcf during the remaining period.

The evidence conclusively established that twenty year (or life of the lease) gas sales contracts were customary in the natural gas industry in 1961. The marketing of natural gas requires the connection of the gas production to a pipeline to move the gas to a point or points where it can be consumed. In order to obtain financing, and, in instances where governmental regulation is involved, regulatory approval to construct or extend a pipeline system to facilitate the marketing of gas, a pipeline company or other purchaser of the gas had to acquire and be able to show sufficient long-term supplies of gas to amortize the expense.

Other evidence established that Ballard & Cordell obtained a price that was as good as or better than prices in comparable sales made at that time, despite the fact that a buyer’s market prevailed. Furthermore, the price escalation clause was among the best contained in any such sales.

There is no dispute that the negotiations between Ballard & Cordell and American Louisiana were conducted in good faith and at arm’s length and that the resulting contract was very favorable for the plaintiffs as well as the defendants.

Prices paid for natural gas remained stable throughout the 1960s and early 1970s. After that time, the prices paid for natural gas by intrastate purchasers, who were free to pay whatever price was necessary to acquire gas supplies, far surpassed prices paid by interstate purchasers, because the federal government carefully regulated the prices that could be paid for natural gas production by interstate purchasers. This disparity continued until Congress passed the Natural Gas Policy Act, which became effective December 1, 1979. Since then both interstate and intrastate sales of natural gas have become subject to federal price controls. The end result is that there is no longer a price disparity and the two markets are competitive again.

MARKET VALUE

In order to ascertain the true intent of the parties to the leases, we are guided by several pertinent rules of contract construction found in the Louisiana Civil Code, which provide as follows:

“Art. 1945:
Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
Second_That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third_That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
Fourth_That it is the common intent of the parties — that is, the intention of all —that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.” (Emphasis added). “Art. 1950:
When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.” “Art. 1951:
When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory.”
“Art. 1955:
All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.”
“Art. 1956:
When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

The contract term “market value” as used in the royalty provision of the various leases is susceptible to two interpretations: The plaintiffs-lessors contend the term necessarily means that their royalties must be based upon an ever-changing market value of natural gas which is to be determined on a daily basis as gas is produced and/or delivered to the gas purchaser; the defendants-lessees contend that the parties meant for lessors’ royalties to be based upon the prevailing market value at the time the gas reserves were committed to the purchaser under the 1961 contract.

The trial court concluded that the term “market value” should be used in the sense in which it is commonly understood—the price which a thing (here natural gas) might be expected to bring if offered for sale in the market. Then the court concluded that since natural gas cannot be sold until it is actually delivered, then the “market value” of “gas sold” clearly meant plaintiffs’ royalties on each unit of gas were to be based upon the then current market value of natural gas as the gas was delivered to the gas purchaser.

To reach its conclusions the trial court relied upon these three rules of contract construction: 1. The contract is the law between the parties; 2. The clear language of a contract must be enforced; and 3. In case of an ambiguity a contract must be construed against him who prepared it.

We recognize all three as established rules of contract construction, but find that the latter two are not pertinent. “Market value” has the commonly accepted meaning attributed to it by the trial court, and that meaning prevails here, but the language in the leases does not clearly indicate whether the parties intended for the royalties to be calculated from the market value which prevailed when the gas was committed to the buyer in 1961, or from a current market value to be determined on a daily basis as gas is produced and/or delivered to the purchaser. Hence we think the trial court erred in concluding that the true and common intent of the parties could be determined by resorting only to the “market value” clause of the royalty provisions of the leases, without regard for other clauses which indicated a contrary intent, as well as the circumstances which existed at the time the leases were confected.

By its use of the ambiguity rule, it appears that the trial court found the leases ambiguous and construed them against the defendants-lessees on the assumption that the lessees prepared the leases. There was no evidence presented from which the court could reasonably have concluded that the lessees in these cases had prepared the leases. Even if we assume that the lessees did prepare these leases, however, we are bound, first, to ascertain the common intention of the parties in a doubtful situation, rather than to adhere to the literal sense of the terms. C.C. Art. 1950. Only if we cannot ascertain the common intention of the parties do we construe the ambiguous clause against its preparer. C.C. Art. 1957; Fee v. Vancouver Plywood Co., Inc., 331 So.2d 151 (La.App. 3rd Cir. 1976); writ denied 334 So.2d 434 (La.1976). Since we find that the common intention of the parties is ascertainable from the evidence, construction against the lessees was erroneous.

We find that the parties intended for the lessors’ royalties to be based upon the prevailing market value for natural gas at the time these natural gas reserves were committed to American Louisiana in 1961. This interpretation espoused by the defendants-lessees is supported by the evidence and is the only one under which the common intent of all the parties can be realized. The plaintiffs-lessors’ interpretation is not supported by the evidence, and its adoption would lead to results never intended by the parties, as we will explain later.

EVIDENCE

According to C.C. Art. 1956, quoted supra, when the intent of the parties is doubtful, the manner in which the contractual obligations have been executed by both parties, or by one with the express or implied consent of the other, furnishes a rule for the interpretation of their intent.

For more than three-fourths of the life of the gas sales contract (1961-1978) the plaintiffs acquiesced in the manner in which the defendants, through Ballard & Cordell, calculated and paid their (plaintiffs’) royalties. During all those years the defendants paid in royalties on the Davis Nos. 1, 2, and 3 and Rogers leases Váth, Váth, 18.5%, and Vtth respectively of the proceeds received from the gas purchaser. Plaintiffs never objected to this method of calculation until 1976 when they sent a letter to Ballard & Cordell complaining that the royalties paid were less than the then current market value. However, plaintiffs in No. 8267 did not file a suit for accounting until March of 1978, while plaintiffs in No. 8268 waited until February of 1979 before filing their suit.

Plaintiff’s long-standing acquiescence in the defendants’ method of calculating and paying royalties would alone probably be a sufficient basis for adopting the defendants’ interpretation of the “market value” provisions in the subject leases. However, other uncontradicted evidence leaves no doubt that only the defendants’ interpretation reflects the common intention of all parties.

One of the defendants’ expert witnesses, Mr. Bolton, testified that the “market value” clause is a “lessee clause”, that is, it was originally intended to protect the lessee. As Mr. Bolton explained, the original royalty clause in oil and gas leases was designed when gas was not a very important mineral. As the gas markets developed, it sometimes became necessary for lessees to undergo considerable expense in order to develop a market off the premises. This would become necessary whenever no market existed at the well site but an economically feasible market existed off the premises. However, since the lessees expended considerable resources to bring the gas to the market (e. g., by way of a pipeline constructed by lessees, as in the instant ease) the gas was more valuable at the market, when it was finally sold, than at the well where it was first produced. In order to recoup these additional expenses, lessees developed the “market value” clause, under which the lessees were obligated to pay as royalty the market value of the gas at the well, which ordinarily was a lesser amount than the market value at the point of the sale.

Language in Davis lease No. 1 (1953) and the Rogers lease (1962) bears out Mr. Bolton’s testimony. Davis No. 1 provides for royalties to be:

“on gas . . . sold or used off the premises . . . the market value at the wells of one-eighth (Vs) of the gas so sold or used; provided that on gas sold at the wells, the royalty should be one-eighth (Vs) of the amount realized from such sale . . . . ” (Emphasis added).

The Rogers lease provides for royalties on gas to be:

“on gas . . . sold or used off the premises . . . the market value at the well of one-fourth (Vi) of the gas so sold or used, provided that on gas sold at the well the royalty shall be one-fourth (V4) of the amount realized from such sale.” (Emphasis added).

Thus, if the gas had been sold at the well, plaintiffs claiming as lessors under Davis lease No. 1 and the Rogers lease would clearly be entitled to only Vs and Vi, respectively, of the amount realized from the sale, which amounts were established by the 1961 gas sales contract. Since the gas was sold off the premises rather than at the well, however, the lessors under the Davis No. 1 and Rogers leases were entitled, under the terms of the leases, to the market value at the well of Vá or Vi of the gas sold. According to Mr. Bolton’s expert analysis, this clause contemplated lessee recoupment of expenses incurred in bringing the gas to market. In fact, the lessees had charged pipeline expenses to the lessors’ royalty interests from 1961 to June 21, 1977.

The royalty clauses in Davis lease No. 1 and the Rogers lease are instrumental in determining the parties’ common intention. Those clauses provided that royalties from gas sold at the well be based on the amount realized. There is no dispute among the parties that the amount realized could only be determined by the terms of a contract committing the gas to a purchaser, customarily for a long period of time. Thus, in one instance under the leases (i. e., for gas sold at the well) all the parties, lessors and lessees, clearly intended for the lessors’ royalties to be tied to the terms of whatever deal the lessees could make when marketing the gas. In light of this clear intent, and after considering the testimony of Mr. Bolton which bears directly upon this issue, we conclude that in the other instance also (i. e., for gas sold off the premises) the parties to the Davis No. 1 and Rogers leases intended for the lessors’ royalties to be tied to the gas sales contract, and to be determined by the 1961 market value of natural gas.

If we concluded otherwise by adopting the interpretation placed upon the royalty clauses by the plaintiffs, then the royalties under Davis lease No. 1 and the Rogers lease for gas sold at the well would be entirely dependent upon the amount received under the gas sales contract and would, in fact, have been established in 1961 for the next twenty years, whereas if the gas was sold off the premises, the royalties would not be fixed in 1961 (or whenever the gas might have been sold) but would instead be subject to constant fluctuation based on a theoretical daily market value while the lessees’ interest would be fixed by the agreed upon purchase price.

Nothing in the record supports a conclusion that the parties intended for plaintiffs’ royalties to be certain and fixed in one instance but subject to change in the other. Since the parties clearly intended for the royalties to be certain and fixed in one instance, we think the only reasonable interpretation of the Davis lease No. 1 and the Rogers lease royalty clauses is that the parties intended for the royalties to be certain and fixed in both instances. The only way this result could be achieved was for the royalties to be based upon the market value for natural gas at the time the gas was committed to the purchaser. The evidence conclusively established that the price paid under the gas sales contact was equal to or better than the prevailing market value in 1961.

The royalty clauses in the Davis No. 2 and No. 3 leases speak only of the “market value of the gas sold or used” without distinguishing, as the Davis No. 1 and Rogers leases did, between gas sold off the premises and gas sold at the well.

Although the language in Davis leases No. 2 and No. 3 less clearly reflects the intention of the parties than the language in the Davis No. 1 and Rogers leases, we do not think the difference in the language was intended to effect the profound changes the plaintiffs hope for. Rather, we believe it is reasonable to infer that the parties intended for the lessors under Davis leases No. 2 and 3 to receive the then current market value of the gas whenever it was committed to the purchaser and wherever it was sold, regardless of whether it was sold off the premises or at the well.

It strains the imagination to conclude that the parties intended for the royalties to be at all times uncertain and subject to change, rather than determinable from the terms of the gas sales contract. The effect of holding in plaintiffs’ favor would be to force the lessees to pay to the lessors many times more for their fractional royalty interests than the lessees actually received for all the gas. We must conclude that such a result was never contemplated nor intended by the parties.

The plaintiffs introduced no evidence of the parties’ intentions. Rather, they relied mainly upon the perceived ambiguity of the term “.market value” and the case of Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934), which adopted Webster’s definition of “market price” as “the price actually given in current market dealings.” (Emphasis supplied in Wall).

In Wall, the lessee was required to pay the lessor Vs of the value of the gas sold off the premises, calculated at the “market price” thereof. The price to be paid was left open or made to depend upon the “market price” at the time the gas was purchased. The lessee settled with the lessors at 4$ per mcf, contending that this was the market price at the well and was the proper basis for settlement. The lessee admitted selling the gas two miles from the field at 5.8<t per mcf. The lessors demanded settlement on the basis of the sale price of the gas where sold.

Neither the lease nor the testimony revealed whether the Wall parties intended for “market price” to mean the price at the well or the price the gas would bring in a market remote from the well. In the absence of clear evidence of intent, the Court thought it was reasonable to assume the parties intended for the royalties to be based upon the current market price for gas in the field, 4$ per mcf, since that is where the gas was reduced to possession and that is where ownership of it sprang into existence. The Wall Court recognized that if it adopted the lessors’ position and allowed them to receive Vs of the gross price received by the lessee, it would be holding that it was the duty of the lessee to bear all the expenses of carrying the gas to a market beyond the gas field, a result contrary to the Court’s holding in Coyle v. Louisiana Gas & Fuel Co., 175 La. 990, 144 So. 737 (1932).

Wall defined “market price” as the price actually given in current market dealings. However, the Court was not concerned with whether the current market price, as opposed to a past market price, was to be used to determine royalty amounts, which is the issue here. Rather, the Court was concerned with whether the parties intended for the market price in the field, as opposed to the market price where the gas was sold, to govern the payment of royalties. Apparently, all parties in Wall agreed that the royalties were to be based upon the current market price at the time the gas was produced. There is no such unanimity of intent here. On the contrary, the parties herein expressly disagree over whether they intended for the royalties to be based upon the 1961 market value or the current market value, and that intent cannot be determined simply by resorting to a half-century old decision which states in dicta that market price means “the price actually given in current market dealings.”

We do not believe that the definition the Wall Court placed upon “market price” must be sacredly followed when construing gas leases when, as in the instant case, there is evidence in the record which indicates the parties intended for a past market value, rather than the current market value, to control the computation of royalties. Hence, we find the Wall case distinguishable.

In other respects Wall supports the lessees’ contentions rather than those espoused by lessors herein. Being unable to determine the parties’ intent after reading the lease and the record, the Court adopted a reasonable interpretation of the parties’ intent which was favorable to the lessees. The Court also recognized that the lessee was under no obligation to bear the entire expense of carrying the gas to a market beyond the gas field.

Finally, we consider the argument that the gas could not be sold by the defendants-lessees until it was produced. The defendants countered that the sale was complete, under C.C. Art. 2456, because there existed an agreement for the object and the price, although the object was not yet delivered nor the price paid. As aforementioned the trial court rejected defendants’ argument on the principle that natural gas can be neither possessed nor owned until it is delivered into the pipeline, a daily occurrence.

Our decision does not depend upon when each particular unit of gas is sold. From our review of the evidence, we are satisfied that the parties’ true intent was for the royalties to be determined by the market value of natural gas at the time the gas was committed to the purchaser in 1961. Since this is what the parties intended, the issue of when the gas is actually or legally sold is unimportant.

For the above and foregoing reasons the judgment of the district court is reversed and the claims of all plaintiffs against all defendants is hereby dismissed. Plaintiffs are cast for all costs.

REVERSED AND RENDERED.

      . Asst. Prof. John M. McCollam anticipated acrimonious litigation of this precise issue in his article “A Primer for the Practice of Mineral Law under the New Louisiana Mineral Code”, 50 Tul.L.Rev. 732 (1976), at pages 819-820.

      . A separate decision is being rendered in Rogers v. Ballard, 401 So.2d 610 (La.App. 3rd Cir. 1981), the companion to this case. However, all issues are common to both cases so they will be discussed only in this opinion.

      . With regard to a fifth lease, the “Henry Lease”, under which William F. Henry, Jr., individually claimed additional royalties as lessor, the trial court held that royalties have been properly paid, because under the royalty provision in that lease the defendants are to account for royalties based on the “sales price,” either at the well or at the delivery point; and it is undisputed that royalties have been paid under the Henry Lease on that basis. The dismissal of Henry’s claim under this lease has not been appealed so that portion of the judgment will not be disturbed.

      . According to the trial court’s opinion, Ballard & Cordell operated the leases for the lessees pursuant to a Joint Operating Agreement. The plaintiffs-lessors have no dealings with the defendants-lessees except through Ballard & Cor-dell. The court dismissed all claims in both suits against Ballard & Cordell because it owned no interest in any of the leases. That dismissal has not been appealed.

      . Frank C. Bolton, Jr. was accepted as an expert in the area of the natural gas production industry as it relates to the area of southwest Louisiana. Robert E. Galbrith, also accepted as an expert, testified as to the market circumstances of natural gas in southwest Louisiana generally and the Calcasieu Pass area particularly.

      . The field was bordered on the south by the Gulf of Mexico, west by the Lake Charles Ship Channel and the Calcasieu River, and northwest by the Calcasieu River.

      . See La. R.S. 31:122; Risinger v. Arkansas-Louisiana Gas Co., 198 La. 101, 3 So.2d 289 (1941); Hutchinson v. Atlas Oil Co., 148 La. 540, 87 So. 265 (1921); Lelong v. Richardson, 126 So.2d 819 (La.App. 2nd Cir. 1961), and Waseco Chemical & Supply Co. v. Bayou State Oil Corporation, 371 So.2d 305 (La.App. 2nd Cir. 1979), writ refused 374 So.2d 656 (La.1979), for judicial recognition of the implied obligation to exercise reasonable diligence in securing a market.

      . The lessees’ right to recoup these additional expenses incurred from marketing the gas off the premises was recognized in Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934), discussed infra.

      . After receiving lessors’ letter of May 26, 1977, which protested payment of royalties based on proceeds received rather than current market value, the lessees discontinued the practice of charging pipeline expenses and, in fact, voluntarily refunded all charges made from June 1, 1967 to June 21, 1977.

      . The lessors claiming additional royalties under Davis No. 2 and No. 3 are the same lessors claiming under Davis No. 1.


text:
    Milford A. ROGERS, Plaintiff-Appellee-Appellant, v. Wiley P. BALLARD, Jr., et al., Defendants-Appellees-Appellants.
    No. 8268.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.
    Jones, Jones and Alexander, Jerry G. Jones, Cameron, for plaintiff-appellant-ap-pellee.
    Gene Lafitte and Lawrence R. Simon, Jr., of Liskow and Lewis, Lafayette, for defendants-appellees-appellants.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

For the reasons expressed in Henry v. Ballard & Cordell Corporation, 401 So.2d 600 (La.App.3rd Cir. 1981), the judgment of the district court is reversed and the claims of all plaintiffs against all defendants is hereby dismissed. Plaintiffs are cast for all costs.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    James J. McGEE, Kelly McGee and on behalf of the minor, Casey McGee, Plaintiffs-Appellants, v. Carol Steyer BOULNOIS and State Farm Ins. Co., Defendants-Appellees.
    No. 8269.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Smith & Wise, James A. Smith, Lake Charles, for plaintiffs-appellants.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

In this tort action, Dr. James J. McGee and Kelly McGee, individually and as administrators of the estate of their minor son, Casey McGee, seek to recover damages resulting from an intersectional automobile collision. Mrs. Carol Steyer Boulnois and her insurer, State Farm Mutual Automobile Insurance Company, are named as defendants. The case was tried to a twelve-person jury which rendered judgment in favor of defendants and against plaintiffs dismissing the latters’ suit at their costs. Plaintiffs have appealed urging that the jury manifestly erred in its conclusion that the defendant driver, Carol Boulnois, was free of any negligence and that plaintiff driver, Dr. James J. McGee, was negligent in the operation of his motor vehicle.

The trial record discloses that on January 15, 1980 at approximately 7:45 a. m., Dr. McGee and Mrs. Carol Steyer Boulnois, were involved in an automobile collision at the intersection of Nelson Road and Sale Road in Lake Charles, Louisiana. Nelson Road runs north and south and Sale Road runs east and west. The intersection is controlled by an electric semaphore traffic signal. The record indicates that defendant was traveling south on Nelson Road and had stopped her vehicle at the intersection with her left turn indicator on as she waited for the northbound traffic on Nelson Road to pass so that she could turn left onto Sale Road. The McGee vehicle was proceeding north on Nelson Road. The record reflects some dispute regarding the location of the Boulnois vehicle at the time the McGee automobile entered the intersection. Dr. McGee testified that the defendant had not entered the intersection, but rather, had stopped just outside of it, and then, abruptly turned in front of his vehicle. On the other hand, the defendant and a disinterested witness, Mrs. Kathleen Briggs, whose automobile was positioned just to the rear of defendant’s vehicle, testified that defendant had pre-empted the intersection in an attempt to execute a regular left turn and that it appeared that plaintiff was “trying to make it through the yellow light” when the collision occurred. The resultant accident caused property damage to the Boulnois and McGee vehicles and plaintiff’s son, Casey McGee, sustained a bruised nose and forehead.

Plaintiff urges on appeal that the jury erred in concluding that the defendant was free from any negligence and that plaintiff was negligent in the operation of his motor vehicle. To that end, plaintiff contends that the jury disregarded the facts and law in its decision, particularly, LSA-R.S. 32:122 which provides:

“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

The sole issue on appeal is whether the jury was clearly wrong in its conclusion that the defendant, Carol Steyer Boulnois, was free of any negligence in the operation of her motor vehicle and that plaintiff, Dr. James J. McGee, was negligent in the operation of his automobile.

A review of the trial record reveals that the trial judge instructed the jury at length regarding the law applicable to the instant circumstances including the particular provisions of LSA-R.S. 32:122. It is evident that the jury concluded that plaintiff failed to establish that the defendant violated her statutory duty or that she was negligent in any way in the operation of her motor vehicle. Presumably, on the basis of the evidence presented, the jury concluded that defendant pre-empted the intersection in an effort to make a left turn onto Sale Road at a time when the McGee vehicle was not in such close proximity to the intersection as to constitute an immediate hazard and that the accident occurred when, as Mrs. Briggs testified, the plaintiff tried to make it through the yellow light. Our careful review of the record reveals no clear error in this finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 359 So.2d 1303 (La.1978), writ granted, 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). Accordingly, the judgment appealed from will be affirmed.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Plaintiffs-appellants are taxed with all costs of this appeal.

AFFIRMED.

      . Plaintiffs’ petition denotes the parties-plaintiffs as Dr. James J. McGee and Kelly McGee and designates such parties individually and as administrators of the estate of their minor child, Casey McGee. The record reflects that Kelly McGee is the eleven year old daughter of Dr. James J. McGee and his wife Cindy A. McGee. We assume, therefore, that plaintiffs’ petition is in error and that Cindy A. McGee is the proper party plaintiff along with Dr. McGee.


author: SWIFT, Judge.

text:
    Leston GUILLORY, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
    No. 8270.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Dennis L. Doise, Lafayette, for defendant-appellant.
    J. Wendel Fusilier and Alex Chapman, Jr., Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

The plaintiff herein seeks to recover from his employer’s insurer workmen’s compensation benefits for alleged total and permanent disability, plus penalties and an attorney’s fee, by reason of an accident he sustained on January 22, 1980.

Mr. Guillory was a laborer, who performed board road construction for South Louisiana Contractors (SOLOCO). The job entailed, among other things, his tying a cable around a bundle of 50 boards, each board being about 18 to 20 feet long, five to six inches wide and three and one-half to four inches thick. While being lifted by a wench, one of the bundles swung around and hit the plaintiff in the back, causing him to fall to the board road.

Dr. Robert Kapsinow, a former surgeon now engaged in general practice in Lafayette, examined Guillory the day of the accident. He noted that the plaintiff sustained a contusion in the mid-back region where struck by the boards. He also suffered a small abrasion of the right elbow when he hit the road and he had a bad headache. Dr. Kapsinow found no other injuries except an old stab wound in Guillo-ry’s neck. He gave plaintiff a tetanus shot and pain medication. Guillory was told to return within two days if the pain did not subside, but he did not do so. His reason was that he did not have a ride. The doctor considered the back injury minor and he believed that Guillory would be well and able to resume his work in two to five days.

The plaintiff did not return to work and the defendant paid him workmen’s compensation benefits at the rate of $63.90 per week from the accident up to April 8, 1980. It also paid Guillory’s medical expenses to that date.

Dr. John Tassin, a general practitioner from Ville Platte, Louisiana, saw the plaintiff on January 25, 1980. He found that Guillory was then neurologically sound, had no fractures or dislocations, but probably suffered a sprain or a ligamentous type injury to his lower back. This physician prescribed pain medication and conservative physical therapy. When Guillory complained of more pain on walking, Dr. Tassin referred him to Dr. Frederick L. Mayer, an orthopedic surgeon in Opleousas, who examined him on January 31.

Dr. Mayer concluded that the plaintiff sustained only a lumbar musculoligamen-tous strain on the left side of his low back area. He recommended continuation of conservative treatment and felt Guillory could be discharged to return to work in three or four weeks.

Dr. Tassin saw the plaintiff about once a week during February and March, 1980. Because of his continued complaints of pain, some now in the upper back, the doctor referred Guillory to Dr. Mayer a second time for additional evaluation.

After another complete and thorough examination on April 8, 1980, Dr. Mayer reported to Dr. Tassin and the employer that plaintiff’s lumbar strain “. . . was completely resolved at this time” and he was physically fit to return to his previous employment. The doctor testified that Guillo-ry “. . . had no findings whatsoever of a herniated, ruptured or extruded disc.”

On the basis of Dr. Mayer’s medical report the defendant ceased paying compensation benefits to Guillory.

Dr. Tassin testified that he disagreed with Dr. Mayer’s conclusion that Guillory could return to work and has continued to see him. He has been unable to rule out the possibility of a herniated disc, and thinks plaintiff should have a “. . . complete independent evaluation to satisfy my own self and to satisfy him.” He referred Guillory to Dr. Henry LaRocca of New Orleans for such an examination on May 19, but the plaintiff did not go because the defendant would not pay for same. The latter’s position is that Guillory had fully recovered from his injuries by April 8, 1980.

In his brief and during oral argument before this court counsel for defendant acknowledged the plaintiff’s correct weekly compensation rate was $94.66 rather than $63.90 as paid. Since he had not been paid the “maximum percent of wages” to which he was entitled under the act when suit was instituted, the exception of prematurity filed herein by the defendant lacked merit and was properly overruled. LSA-R.S. 23:1314. However, we do not find the defendant’s error in this respect to be arbitrary or capricious so as to give rise to imposition of penalties and an attorney’s fee.

The principal issue presented for our determination on this appeal is whether the plaintiff continues to suffer a disabling injury as the result of the January 22, 1980, work-connected accident.

While our workmen’s compensation act should be liberally construed in favor of the claimant, he still bears the burden of proof and must establish his claim by a preponderance of the evidence. Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (La.1963); Walker v. Belden Corporation, 331 So.2d 167 (La.App. 3 Cir. 1976), writ denied 334 So.2d 216 (La.1976); Layton v. S. H. Bolinger Company, 335 So.2d 695 (La.App. 2 Cir. 1976), writ denied 338 So.2d 705 (La.1976);

According to the supreme court in Guillo-ry,

“What is meant by this rule is that plaintiff in a compensation suit is required to make out his case by a preponderance of the evidence and with the same legal certainty as required in any other civil case. It follows from this, that speculation, conjecture, near possibility and even unsupported probabilities, are not sufficient to support a judgment.”

In this case, except for the plaintiff’s statement that his back hurt and he has no strength in his right hand, the evidence in regard to disability consists entirely of the testimony of the three doctors mentioned above. Ordinarily, the testimony of the treating physician should be given more weight than that of a doctor who has examined a plaintiff for purposes of diagnosis only. However, another rule often applied is that the testimony of a specialist is entitled to more weight than that of a general practitioner when the subject at issue is in his particular field. Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3 Cir. 1973).

We believe that the latter rule is applicable in this case, particularly since the treating physician sought the advice of the specialist, who examined the plaintiff not once but twice at his request.

Actually, there is no direct conflict in the testimony of these two doctors as to the plaintiff’s condition. Neither Dr. Tassin nor Dr. Mayer found any evidence of a herniated disc in their examinations of Guil-lory. Dr. Mayer, the specialist, expressed a positive opinion that Guillory had recovered from his lumbar sprain by April 8,1980, and was then no longer disabled. Dr. Tassin, the general practitioner, simply suspects that a herniated disc possibly may be present and he is unwilling to discharge plaintiff to return to work without further evaluation in this regard by another specialist.

Dr. Mayer’s opinion is supported by the other general practitioner, Dr. Kapsinow, who found only minor injuries and concluded that plaintiff would recover and be able to return to work in a maximum of six days after the accident.

From our review of the record the preponderance of evidence is to the effect that plaintiff recovered from his injuries and was able to resume gainful employment on or before April 8, 1980. Clearly, he has failed to prove that he has been disabled since that date. Therefore, the trial judge was clearly wrong in concluding that he was disabled thereafter and awarding additional compensation for temporary total disability.

For the foregoing reasons, the judgment of the district court is reversed and set aside and judgment is rendered herein in favor of the defendant, Insurance Company of North America, and against the plaintiff, Leston Guillory, rejecting the latter’s demands and dismissing this suit. The costs of court, including this appeal, are assessed to the plaintiff and defendant in equal proportions.

REVERSED AND RENDERED.

      . From the briefs of both parties we find that the error was discovered by defense counsel while writing his brief for this court and a check for $338.47 was mailed to plaintiff’s attorney on February 16, 1981, as the total difference between the two weekly compensation rates for plaintiffs temporary total disability to April 8, 1980. The plaintiff has not indicated any error in the calculation of this payment or any objection thereto. We therefore assume it is correct and fully covers the deficiency in compensation for the period indicated.