author: LEMMON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Ben Lloyd McCOY.
    No. 67702.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMichael, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

We granted defendant's application for supervisory writs in order to review his conviction of theft of electric utility services in violation of R.S. 14:67.6. In his application defendant urged two assignments of error, both relating to the constitutionality of R.S. 14:67.6.

Vagueness

Defendant contends that the statute is unconstitutional because it fails to give adequate notice regarding conduct proscribed by its terms and fails to set forth ascertainable standards of guilt. R.S. 14:67.6 in pertinent part provides:

“A. Theft of utility service is the misappropriation or taking, or obtaining for use any electricity, gas or water manufactured, held for sale or distributed by any person, firm or corporation engaged in the manufacture, sale or distribution of electricity, gas or water, without the consent of, and with the intent to defraud such person, firm or corporation, by diverting by any means or device any quantity of electricity, gas, or water from the wires, cables, pipes or mains of such person, firm or corporation or by preventing the meter or meters furnished by such person, firm or corporation from properly registering the quantity of electricity, gas, or water passing through such meter or meters, or from registering the full amount of electricity, gas, or water actually used or consumed, or by diverting electricity, gas, or water around such meter or meters so as to interfere with the accurate registration of such meter or meters.”

In denouncing the vagueness of the statute, defendant points to the use of such generic terms as “diverting”, “preventing”, and “interfering”.

Words used in statutes need not have the same precision as mathematical symbols. Due process requires only that the language of a statute have generally accepted meaning so that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which is forbidden by its terms. State v. Gisclair, 363 So.2d 696 (La.1978); State v. Lindsey, 310 So.2d 89 (La.1975); State v. Defrances, 351 So.2d 133 (La.1977); State v. Dousay, 378 So.2d 414 (La.1979).

The terms complained of as vague have well understood meanings in the context of their use in the statute. This contention is plainly without merit.

Unconstitutionality of the Prima Facie Evidence Provision

The portion of the statute defining the offense requires the state to prove that the accused obtained utility service without the consent of and with intent to defraud the utility company, either by preventing the meter from accurately measuring service or by diverting service around the meter (thereby preventing accurate registration of service). The statute clearly requires proof of the accused’s fraudulent intent and of his act or his guilty knowledge of the acts of others in hindering accurate registration of utility service. See R.S. 14:24.

Defendant attacks R.S. 14:67.6 B as creating an unconstitutional presumption which infringes his right to require the state to prove all elements of the offense necessary to establish his guilt beyond a reasonable doubt. La.Const. art. 1, § 16 (1974); U.S.Const. Amend 14; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Section B provides:

“B. The presence at any time on or about any wire, cable, pipe, main or meter, or the equipment to which said wire, cable, pipe, main or meter is affixed or attached, or any device or devices resulting in diversion of electricity, gas or water or any device resulting in the prevention of the proper action or accurate registration of the meter or meters used to measure the amount of utility services rendered, or interfering with the proper action or accurate registration of such meter or meters, shall constitute prima facie evidence of knowledge of the person, firm or corporation having custody or control of the room, structure or place where such device or wire, cable, pipe, main or meter is located, and benefiting from the misappropriation of such utility service, and shall constitute prima facie evidence of the intention on the part of such person, firm or corporation to defraud and shall bring such person, firm, or corporation prima facie within the scope, meaning, and penalties provided in Subsection C herein.”

Section B was obviously designed to shift effectively the burden of proof to the defendant, once the prosecution proves that defendant benefited by certain described means which prevented the meter from accurately measuring the use of utility service. By the statute’s terms, evidence of the mere presence of any device which achieves that result establishes a prima fa-cie case of both guilty knowledge and intent to defraud on the part of the defendant. But the statute goes further: it explicitly provides in effect that a prima facie case of guilt has been established once the state proves such tampering (by anyone) which benefits the defendant, stating that proof of such tampering “shall bring such person ... prima facie within the scope, meaning, and penalties ...” of R.S. 14:67.6. Section B thus requires the state to prove only the described tampering and then throws the burden upon the accused to explain why he is the innocent beneficiary.

Under both Louisiana and federal constitutions, the state is obliged to shoulder the burden of proving that the defendant was criminally responsible for the unauthorized diversion of utility service (or for the failure of the meter accurately to measure his use of the service). No statute can constitutionally require the defendant to prove that he was not responsible; that is, that he was an innocent beneficiary. R.S. 14:67.6 B plainly allocates the burden of proof in an unconstitutional fashion.

Once the Legislature has determined the elements of an offense, the constitutional principles of due process require the prosecution to prove those elements beyond a reasonable doubt. See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Legislature cannot thereafter create a presumption which effectively shifts the burden of proof of an elemental fact unless the facts, which are necessary to be proved to bring the presumption into effect, establish the elemental fact beyond a reasonable doubt. See State v. Daranda, 388 So.2d 759 (La.1980), upholding the mandatory presumption created by the relationship of a certain percentage of blood alcohol and the state of being under the influence of alcohol; see also County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Discussing this standard in Daranda, we said:

Ulster defined a mandatory presumption as one that tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to refute the presumed connection between the two. Generally, the presumption is examined on its face to determine the extent to which the basic and elemental facts coincide. In order to sustain the use of a mandatory presumption to prove an essential element of an offense, the fact proved must be sufficient to support the inference beyond a reasonable doubt.” 388 So.2d at 761.

Here, the elemental facts of “guilty knowledge” and “intent to defraud” are not established beyond a reasonable doubt by a mere showing that diversion has occurred to defendant’s benefit. In our modem society, there are simply too many other explanations. As the Supreme Court of Florida said in MacMillan v. State, 358 So.2d 547:

“Sub judice, we need not consider whether the subject statutorily created presumption meets the reasonable doubt standard since we agree with appellant that it does not satisfy the rational connection standard. Under the challenged statute, the presumed fact of intent to violate and of violation comes into play merely upon proof that the property wherein diversion of some sort has occurred is in the actual possession of the accused or upon proof that the accused has received direct benefit from a utility. We find that it cannot be said with substantial assurance that the presumed fact that defendant is guilty of violation of Section 812.14, Florida Statutes (Supp. 1976), is more likely than not to flow from the proved fact of possession of the premises or receipt of benefits. One in actual possession of property or one receiving direct benefits would not more likely than not be the guilty person. Such an inference is irrational and arbitrary. Common experience tells us that the device or apparatus tampered with or altered is generally on the outside of a building and accessible to anyone; that the direct benefits from the use of electricity, gas, water, heat, oil, sewer service, telephone service, telegraph service, radio service, communication service, television service, or television community antenna line service are commonly derived by any occupant of the premises, including family members, business partners, associates, employees and others; and that the billing which would constitute notice of possible alteration is done no more frequently than monthly. Furthermore, there are many ways to make an alteration which are so simple in nature that a prankster, a vandal or an angry neighbor could utilize them to cause the one in possession of the premises to receive benefits therefrom without his knowledge and, thereby, subject him to the presumption.” 358 So.2d at 549-550.

Furthermore, proof of the underlying facts in this case do not leave the trier of fact free to accept or reject their relationship to the guilt of the accused, and thus the burden of proof is unconstitutionally shifted to the defendant. Here, the statute provides that the trier of fact is presented with prima facie evidence of guilt unless the accused comes forward with “some evidence to rebut the presumed connection between the two facts”. County Court of Ulster County v. Allen, above.

We will not attempt to redraft this statute to create a permissive inference because the language of the statute obviously creates a “prima facie” case of guilt. Compare State v. Hammontree, 363 So.2d 1364 (La.1978); Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979); State v. Lollar, 389 So.2d 1315 (La.1980) (Lemmon, J., concurring). Thus, we need not decide whether there is a “rational connection between the facts proved and the fact presumed-a connection grounded in ‘common experience’.” Hammontree v. Phelps, above, at 1374 (quoting from Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

Nevertheless, the constitutionally deficient provisions of Section B are clearly severable. While the language of Section B effects an unconstitutional shift of burden of proof, the remainder of the statute is valid, and the state should be allowed to prosecute defendant under the constitutionally valid provisions of R.S. 14:67.6 A defining the offense. Proof of tampering to the benefit of the accused is certainly relevant and is doubtlessly probative (although not conclusive) of culpability.

We therefore declare unconstitutional R.S. 14:67.6 B. Because defendant was charged with a crime punishable under a valid statute (R.S. 14:67.6 A), the trial court’s denial of the motion to quash the bill of information was technically correct. Nevertheless, since defendant pleaded guilty with reservation of his right to urge the unconstitutionality of the statute on appellate review, the conviction based on the guilty plea must be set aside. The matter is remanded to the trial court with instructions to permit the defendant to withdraw his plea of guilty, and for further proceedings.

REMANDED WITH INSTRUCTIONS.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs.

MARCUS, Justice

(dissenting).

I disagree with the majority’s conclusion, that La.R.S. 14:67.6(B) unconstitutionally shifts the burden of proof to the defendant. In County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court discussed evidentiary presumptions and their validity under the due process clause. In criminal cases, the ultimate test of validity is that the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt. The Court defined a permissive presumption as one which allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecution of the basic one and that places no burden of any kind on the defendant. Under a permissive presumption, the basic fact may constitute prima facie evidence of the elemental fact. Because a permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.,

La.R.S. 14:67.6(B) creates a permissive presumption as it allows, but does not require, the trier of fact to infer the elemental facts of knowledge and intent to defraud from proof by the prosecution of the basic facts of the presence of and the benefit from any device preventing the proper registration of the meter used to measure the amount of utility services rendered. The statute states that the presence of and the benefit from such devices (the basic facts) constitute prima facie evidence of knowledge and intent to defraud (the elemental facts of the crime). Hence, the presumption will not affect the application of the “beyond a reasonable doubt” standard unless, after trial on the merits, there is no rational way the trier could make the connection permitted by the inference. Accordingly, the validity of the use of the permissive presumption can only be determined after trial. In the instant case, because defendant pled guilty, he waived his claim of possible invalidity of its use. I respectfully dissent.

      . Since the offense is a misdemeanor and the fine did not exceed $500, the review is by supervisory writ. La.Const. art. 5, § 5 (1974).

      . In the Dousay case we stated:
      “With regard to the requirement of adequate notice, this court has held that the constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. The due process clause of the Louisiana Constitution has also been found to demand that words and phrases employed in statutes or regulations may not be so vague and indefinite that any penalty prescribed for their violation constitutes the taking of liberty or property without due process of law. Similarly, a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of the due process clause of the Fourteenth Amendment of the United States Constitution.
      “Both the constitutional guarantees of procedural due process and the right to a fair trial embodied in Article 1, § 16 of the Louisiana Constitution also require that a criminal enactment contain an ascertainable standard of guilt and that it ‘mark(s) boundaries sufficiently distinct for judges and juries to administer the law in accordance with the legislative will.’ City of Baton Rouge v. Norman, 290 So.2d 865, 868, (La. 1974). The United States Supreme Court has held that ‘[a] law fails to meet the requirements of the Due Process Clause if it is so vague and standard-less that it ... leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.’ Giacco v. Pennsylvania, 382 U.S. 399, 403, [86 S.Ct. 518, 521, 15 L.Ed.2d 447.]
      “The constitutional requirement of definiteness is satisfied when the language of a criminal enactment ‘has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden.’ State v. Defrances, 351 So.2d 133, 135 (La.1977), or when ‘the crucial words [or] phrases in the criminal statute have a fixed and definite meaning for a person of ordinary intelligence’.” State v. Cloud, 248 La. 125, 130, 176 So.2d 620, 622 (1965).” 378 So.2d at 416. :(Some citations omitted.)

      . The statute was obviously enacted to create a special offense for wrongfully obtaining utility service without paying for the service actually received. The same conduct is covered by R.S. 14:67 and 14:2(2).

      . The statute does not create strict criminal liability when a person benefits from the acts of another without his knowledge. If the statute proscribed one’s being the “unknowing” beneficiary of someone else’s unlawful efforts to cause the utility company to suffer a loss due to inaccurate registration of service, such a statute might offend constitutional principles. As we recently said in State v. Brown, 389 So.2d 48 (La.1980), “the ‘vicious will’ has been replaced with less colorful descriptions of the mental state required for a criminal act; nevertheless, intent generally remains an indispensable element of a criminal offense”. 389 So.2d at 50. See also Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

      . Prima facie evidence is defined as evidence sufficient to establish a given fact, which if not rebutted or contradicted will remain sufficient. See Black’s Law Dictionary (5th Ed. 1979).

      . Acts 1977, No. 308, enacting R.S. 14:67.6, contains the standard severability clause. We often only strike the offending provisions and leave the remainder of the statute intact. See State v. Brown, 384 So.2d 425 (La.1980).

      . This case exemplifies a problem of which the court was aware when, in State v. Crosby, 338 So.2d 584 (La.1976), the court recognized the discretion of the trial court to accept a qualified guilty plea reserving the right to seek review of specified pre-plea rulings of the trial court. Although the unconstitutional prima facie evidence provision of R.S. 14:67.6 B played no real part in defendant’s conviction, it cannot reasonably be said that the invalid provision played no part in defendant’s decision to plead guilty.
      Perhaps the procedural aspect of this case would have been clearer if defendant had sought writs after the trial court declined to declare the statute unconstitutional in ruling on defendant’s motion to quash. But when the trial court accepted the plea and when we thereafter granted writs of review, it was understood that our review would relate to the validity of the prima facie evidence provision of the statute. We therefore treat the constitutional issue as properly presented by the motion to quash and recognize that the issue was not rendered moot by the intervening guilty plea.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Kirk A. BOWERS.
    No. 80-KA-1926.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
    Rehearing Denied March 20, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Michael C. Cullen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Program, Philip O’Neill, Gretna, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO and LEMMON, JJ., dissent, believing there is merit in assignment of error number 3.

WATSON, J., recused.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    Alfred Henry SAMPAY v. MORTON SALT COMPANY and Continental Casualty Company.
    No. 80-C-1424.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.

      Bernard J. Bagert, Jr., Bagert, Bagert & McDonald, New Orleans, for plaintiff-applicant.
    William M. Bass, Voorhies & Labbe, Lafayette, for defendant-respondent.
   DIXON, Chief Justice.

Alfred Henry Sampay was seriously injured on October 26, 1972 when the van in which he was a passenger was struck from the rear by a truck driven by James E. Davis, who was in the process of hauling salt products from Morton Salt Company. When Sampay instituted the instant lawsuit, he was not sure whether Davis was an employee of Morton or of Davis Truck Service. Therefore, Sampay alleged each employment relationship in the alternative.

Plaintiff settled his claims against Davis, Davis Truck Service and their insurance carriers, but expressly reserved his rights to proceed against Morton and its insurer. Subsequent to this settlement agreement, Morton obtained a summary judgment on the theory that, assuming Davis is an employee of Morton, release of the employee discharges the employer from further liability. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960). The Court of Appeal affirmed. 388 So.2d 62 (La.App. 1st Cir. 1980). We granted writs to consider whether Williams v. Marionneaux, supra, upon which Morton and the First Circuit relied, remains valid in light of our recent ruling in Foster v. Hampton, 381 So.2d 789 (La.1980).

The issue before the Williams court is the same issue presented in the instant case: whether a plaintiff may, after settling with the tortfeasor and reserving his rights, proceed against the tortfeasor’s employer. The Williams court held that, once the plaintiff settles with the employee, who is primarily liable, he may not proceed against the employer, who is only secondarily liable. In so concluding, the court reasoned:

“... when [the employee] compromised with plaintiff, he repaired his wrong and, therefore, was fully acquitted from further liability. This acquittance inured to the benefit of [the employer] for the release of the tortfeasor must be held to release [the employer] also from further responsibility, as his liability for the tor-tious act was vicarious in nature and derived solely from his legal relation to the wrongdoer.” 240 La. at 725, 124 So.2d at 923.

As support for its conclusion, the Williams court relied upon Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948), in which it was held that the employee and the employer are not solidary obligors. The Cox court, utilizing a restrictive method of interpreting the Civil Code, reasoned that solidarity cannot exist since there is no provision of law expressly declaring that the employer and the employee are solidarily bound. Cox, which had been criticized, see, e. g., Wooten v. Wimberly, 272 So.2d 303, 307 (La.1972) (Tate, J., concurring), was expressly overruled in Foster v. Hampton, supra.

The Williams court was correct in characterizing the employee’s liability as primary and the employer’s liability as secondary or derivative. The employer’s liability to the victim is predicated upon C.C. 2320, which provides:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Liability is imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship. The terms primary and secondary, although correct, can be misleading. The employer’s situation is not analogous to that of the simply surety, for unlike the simple surety, the employer does not have the benefit of discussion. C.C. 3045-48. The employer’s liability is secondary or derivative in the sense that the employer is not himself a wrongdoer or tortfeasor. Thus, the employer and the employee are not joint tortfeasors, as the court in Williams correctly noted. See also Foster v. Hampton, supra at 790.

Although the employer and employee are not joint tortfeasors, they are nonetheless each obligated for the same thing— total reparation of the damages to the victim. The derivative nature of the employer’s liability is of no concern to the victim, and he can compel either the employer or the employee to compensate him for the whole of his damages.

The requisites of solidarity are set forth in article 2091, which provides:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”

In Foster v. Hampton, supra, this court recognized that an obligation is solidary if the requisites of article 2091 are met. Finding that this article’s test is met in the employer/employee relationship, the Foster court held them to be solidarity bound to the victim.

The Civil Code prescribes certain consequences which flow from the characterization of an obligation as solidary. Foster v. Hampton, supra, was an application of the rule that citation served on one soli-dary obligor interrupts prescription with regard to all others. C.C. 3552. Another consequence of solidarity is embodied in article 2203, which provides in pertinent part:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

If the debt is remitted, then the obligation is extinguished, C.C. 2130, and all other solidary obligors are discharged. Where, however, the creditor reserves his rights to proceed against the other solidary obligors, the debt is not extinguished by remission, and the release does not inure to the benefit of the other solidary obligors. By reserving his rights, the creditor makes clear that he is not fully compensated and that he will proceed against the other solidary obligors.

Because Foster v. Hampton, supra, recognized that the employee and the employer are solidary obligors, it follows that, if the victim releases one but reserves his rights to proceed against the other, he may do so by virtue of article 2203. The Williams court, by relying upon Cox, held otherwise. The court in Williams reasoned that, without solidarity, the derivative nature of the employer’s liability precludes recovery against him if the employee has been released. That the employer’s liability is vicarious is important only in relation to the ultimate allocation of the obligation between the employer and the employee. From the viewpoint of the victim, the employer and the employee are solidary obli-gors. Williams is overruled.

For the foregoing reasons, the judgment of the trial and appellate court granting summary judgments in favor of the defendants is reversed, and the case is remanded to the district court for a trial on the merits. All costs of these proceedings are to be borne by the defendants-respondents.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In Foster v. Hampton, 381 So.2d 789 (La.1980), I dissented, being of the opinion that a deputy sheriff was not an employee of the state. Hence, I did not reach the question of whether or not Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948), should be overruled. I do not think that it should for the following reasons.

La.Civ.Code art. 2093 provides that an obligation in solido is not presumed; it must be expressly stipulated. The article further provides that this rule ceases to prevail only in cases “where an obligation in solido takes place of right by virtue of some provisions of law.” Article 2320 provides in pertinent part: “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” I do not consider that this provision creates an “obligation in solido.” Compare La.Civ.Code art. 2324 which makes joint tortfeasors “answerable in solido.” Accordingly, I respectfully dissent.

      . If the employer and employee were joint tort-feasors, then, pursuant to article 2324, that obligation would be characterized as solidary. Article 2324 provides:
      “He who causes another person to to an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.” C.C. 2324 (as it appeared prior to 1979 La. Acts, No. 431). Article 2324 appears to envision a situation where an intentional tort has been perpetrated by co-conspirators. However, the jurisprudence has interpreted the article to include indivisible damage caused by concurrent negligence, and the legislature in 1979 amended the article to expressly provide that “[pjersons whose concurring fault has caused injury, death or loss to another are also answerable, in solido ...” 1979 La. Acts. No. 431, amending C.C. 2324. For an excellent discussion of solidarity, see Comment, Prescribing Solidarity: Contributing to the Indemnity Dilemma, 41 La.L.Rev. 665 (1981).


text:
    STATE of Louisiana v. Daniel R. GETTRIDGE.
    No. 65588.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David Jennings, Lindsay Larson, Asst. Dist. Attys., for plaintiff-appellee.
    Harold Douglas, New Orleans, for defendant-appellant.
   PER CURIAM.

Early on Christmas Day, 1976, an argument took place between defendant Daniel Gettridge and his common law wife Juanita Johnson. The incident took place at the couple’s Desire Housing Project apartment where they resided with their two minor children and with Juanita’s son, Clyde Rat-cliff. The disagreement was started over a pair of pants belonging to the defendant which he claimed Juanita had ruined by laundering. Some blows were exchanged between the two with Juanita receiving a cut on the mouth which produced bleeding. Shortly after the argument had subsided, Juanita’s son Clyde returned home and was told by his mother to call the police. As Daniel attempted to prevent the telephone call, a slight scuffle ensued causing Juanita to flee the scene to a neighbor’s apartment. From her position there, Juanita could see across the hall into her kitchen where Clyde was standing empty-handed. Juanita called for Clyde to leave the apartment, saw him move from her view, and then heard some shots being fired. The police arrived on the scene after having been called by Ms. Johnson to find Clyde on the kitchen floor, having been shot several times. The victim was taken to the hospital where he was pronounced dead. Defendant Gettridge, having fled the scene, was taken into custody at his brother’s house where he surrendered to police later than night. After trial by jury, defendant was convicted of violating R. S. 14:30, murder in the first degree, and sentenced at the recommendation of the jury to life imprisonment at hard labor.

Defendant presents eight arguments to this Court in support of thirteen assignments of error. We find that none of defendant’s assignments present reversible error, nor do any involve legal issues not governed by clearly applicable principles of law. Therefore, the assignments are treated in an appendix attached hereto which remains part of the public record of this Court but which is not for publication with this per curiam opinion.

Decree

Accordingly, the conviction and sentence of the defendant Daniel R. Gettridge are affirmed.

AFFIRMED.

       Judges Grover L. Covington, Remy Chiasson, and Elmo E. Lear, of the Court of Appeal, First Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Fred A. Blanche, Jr.


text:
    VERSAILLES ARMS APARTMENTS v. Everett GRANDERSON, Jr.
    No. 80-C-1717.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Everett Granderson, Jr., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. No. 10371. Parish of Orleans.

Denied.

Lemmon, J., recused.


text:
    STATE of Louisiana ex rel. Larry THORPE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-1563.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Larry Thorpe, applying to the Orleans Parish, Criminal District Court, for writs of habeas corpus, mandamus and cer-tiorari.

Writ denied.


text:
    STATE of Louisiana ex rel. Delius J. GUILLORY v. STATE of Louisiana.
    No. 80-KH-2724.
    Supreme Court of Louisiana.
    Dec. 1, 1980.
   In re Delius J. Guillory, applying for remedial writs. Parish of Evangeline.

Granted. The city judge is ordered to reduce the bond to a total of $1,000.00 for both charges ($500.00 each).


text:
    STATE of Louisiana v. Bennie G. SMITH.
    No. 80-K-2737.
    Supreme Court of Louisiana.
    Dec. 1, 1980.
   In re Bennie G. Smith, applying for writs of certiorari, review, prohibition, and mandamus. Parish of Livingston.

Bonds heretofore reduced; otherwise application is denied.

DIXON, C. J., dissents, believing no probable cause has been shown.


text:
    STATE of Louisiana v. Bruce W. SHANNON.
    No. 80-K-2767.
    Supreme Court of Louisiana.
    Dec. 2, 1980.
   In re Bruce W. Shannon, applying for writs of certiorari, mandamus, and prohibition. No. 255-335. Parish of Orleans.

Granted. Bond reduced to $50,000.


text:
    STATE of Louisiana v. Margaret Rachel GOZA.
    No. 80-K-2780.
    Supreme Court of Louisiana.
    Dec. 2, 1980.
   In re Margaret Rachel Goza, applying for remedial and supervisory writs. Parish of Jefferson. No. 80-1110.

Granted. Defendant is ordered released during trial on bail previously furnished.


text:
    STATE of Louisiana v. Vivian X. KAHEY et al.
    No. 80-K-2757.
    Supreme Court of Louisiana.
    Dec. 4, 1980.
   In re Vivian X. Kahey, et al., applying for writs of certiorari, review, prohibition and mandamus. Parish of Sabine. Nos. 837, 840 and 841.

Granted. Bond reduced for Vivian X. Kahey, to $50,000.00; bonds reduced for Sherral D. Kahey, and Helen Kahey, to $25,000.00 each.


text:
    STATE of Louisiana ex rel. Eugene D. THOMAS v. STATE of Louisiana.
    No. 80-KH-2790.
    Supreme Court of Louisiana.
    Dec. 4, 1980.
   In re Eugene D. Thomas, applying for remedial writ. Parish of Evangeline.

Granted. Relator is entitled to an appeal. Case remanded to trial court for perfection of his appeal; counsel should be appointed and bail fixed.


text:
    STATE of Louisiana v. Steven DEWEY.
    No. 80-K-2755.
    Supreme Court of Louisiana.
    Dec. 4, 1980.
   In re Steven Dewey, applying for writs of review and stay order. Parish of East Baton Rouge. No. 8-80-345.

Denied.


text:
    VERSAILLES ARMS APARTMENTS v. Everett W. GRANDERSON, Jr.
    No. 80-C-2738.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Versailles Arms Apartments, applying for recall and vacating of stay order. No. 155-531. First City Court. Parish of Orleans. 386 So.2d 1039.

Denied.

BLANCHE, J., would grant the motion.

LEMMON, J., recused.


text:
    Marlene Martin CHAMPAGNE et al. v. Sidney EUSEA.
    No. 80-C-2673.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Sidney Eusea, applying for writ of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 388 So.2d 859.

Writ denied.

MARCUS, J., would grant the writ.


text:
    MERCHANTS TRUST and SAVINGS BANK v. Vincent FRANZONE.
    No. 80-C-2657.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Vincent F. Franzone, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 388 So.2d 851.

Denied.

MARCUS, J., would grant the writ.


text:
    John F. MANZANARES et ux. v. AMERICAN INTERNATIONAL FOREST PRODUCTS, INC. et al.
    No. 80-C-2627.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re John F. Manzanares, et ux, applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of St. Landry. No. 55949.

Writ denied.


text:
    Jessie R. CHATELAIN v. AMERICAN CAN COMPANY.
    No. 80-C-2408.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Jessie R. Chatelain, applying for reconsideration of denied writ of November 21, 1980. Parish of Orleans.

Not considered. See, Rule 9, Section 6, Louisiana Supreme Court Rules.


text:
    STATE of Louisiana v. Antonio McGEE.
    No. 80-K-2803.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Antonio McGee, applying for supervisory and remedial writs. Parish of Orleans. No. 275-851.

Granted. Ruling of trial judge set aside; trial judge ordered to conduct hearing on defendant’s motion to suppress his oral confession.


text:
    STATE of Louisiana ex rel. Randall B. ALMAREY v. STATE of Louisiana.
    No. 80-KH-2785.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Randall B. Almarey, applying for writ of mandamus. Parish of Terrebonne. No. 86563.

Writ granted in part. The district court is directed to provide relator a copy of his Boykin transcript. Otherwise, the application is denied.


text:
    STATE of Louisiana ex rel. Willie OATIS v. Hayden J. DEES, Warden, Dixon Correction Institute.
    No. 66587.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Willie Oatis, applying for remedial writs. Parish of Orleans. No. 246-340.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Otis Lee WHITLEY v. Honorable Alwine M. RAGLAND, Judge, 6th Judicial District, Parish of Madison.
    No. 66708.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Otis Lee Whitley, applying for writ of mandamus. Parish of Madison. Nos. 79-1038 and 79-1039.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Garrett RICHARDSON v. Sheriff Charles FOTI et al.
    No. 80-KH-1547.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Garrett Richardson, applying for remedial writ. Parish of Orleans. No. 267-196.

Denied.


text:
    STATE of Louisiana ex rel. Mary Ann COOPER v. STATE of Louisiana.
    No. 80-KH-2056.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Mary Ann Cooper, applying for writs of prohibition. Parish of Orleans. No. 258-161.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Charles C. FOTI, Jr. Criminal Sheriff, Orleans Parish.
    No. 80-KH-2266.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Garrett Decatur Richardson, applying for writ of mandamus. Parish of Orleans. Nos. 267-196 and 267-703.

Denied.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 80-KH-2322.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Garrett Decatur Richardson, applying for writ of mandamus. Parish of Orleans. No. 267-196.

Writ denied.


text:
    STATE of Louisiana ex rel. Melvin Charles STOKES, Jr. v. Warden Roger AUCOIN.
    No. 80-KH-2358.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Melvin C. Stokes, Jr., applying for writ of habeas corpus. Parish of East Baton Rouge. No. 11-79-104.

Denied.


text:
    STATE of Louisiana v. Bobby Dale SLAYDON.
    No. 80-K(A)2374.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Bobby Dale Slaydon, applying for remedial writs. Vernon Parish. City Court of Leesville. Nos. 35764 and 35764-A.

Denied.


text:
    STATE of Louisiana v. Allen BAILEY.
    No. 80-K(A)-2387.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Allen Bailey, applying for remedial writs. Parish of Calcasieu. No. 12686-79.

Writ denied.


text:
    STATE of Louisiana v. Joseph M. BRELAND.
    No. 80-K-2610.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Joseph M. Breland, applying for writs of certiorari, prohibition, and mandamus. Parish of Lafayette. No. 42745.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Ken SEAVEY a/k/a Randy Tucker v. Judge Frank MARULLO, Orleans Criminal District Court.
    No. 80-KH-2652.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Ken Seavey, applying for supervisory writs and remedial writs. Parish of Orleans. No. 269-183.

Writ denied. A motion for new trial has not been filed in this case according to the district clerk.


text:
    STATE of Louisiana ex rel. Roy T. BOND, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary et al.
    No. 80-KH-2656.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Roy T. Bond, Jr., applying for writ of mandamus. Parish of St. Mary. No. 84288.

Denied. Moot.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Charles M. STEVENSON.
    No. 80-O-2682.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Charles M. Stevenson, applying for reinstatement to the practice of law. No. 60161.

Denied; application premature.


text:
    STATE of Louisiana ex rel. Richard THOMAS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 80-KH-2706.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Richard Thomas, applying for writ of mandamus. Parish of Orleans. No. 236-691.

Denied.


text:
    STATE of Louisiana v. Gwen PATTON.
    No. 80-K-2709.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Gwen Patton, applying for writs of certiorari. Parish of Ouachita. No. M:44647.

Denied; adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. Calvin P. DUFORE.
    No. 80-K-2711.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Calvin P. Dufore, applying for writ of review. Parish of East Baton Rouge. No. 7-80-348.

Denied.


text:
    STATE of Louisiana v. Susan D. DOUGLAS and Michael G. Rickett.
    No. 80-K-2715.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Susan D. Douglas and Michael G. Rickett, applying for writ of certiorari. Parish of East Baton Rouge. No. 1-80-53.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Darren P. SCHWARZ.
    No. 80-K-2723.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Darren P. Schwarz, applying for writ of certiorari. Parish of St. Tammany, City Court. No. 5875.

Denied on the showing made.

DENNIS, J., would grant the writ.


text:
    LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY v. Malcolm ORILLION. Many COURTADE and Malcolm Orillion v. Tommy TUCKER et al.
    No. 80-C-2728.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Dr. James A. Freeman, applying for writ of certiorari, mandamus, prohibition, and review, to the Court of Appeal, First Circuit. Parish of Iberville. Nos. 23592 and 23947.

Writ denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Robert GRISWALD v. PRESIDING JUDGE, CRIMINAL DISTRICT COURT, SECTION J, PARISH OF ORLEANS.
    No. 80-KH-2733.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Robert Griswald, applying for writ of mandamus. Parish of Orleans. No. 252-961.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Criminal Sheriff, Charles C. FOTI, Jr., et al. Orleans Parish.
    No. 80-KH-2734.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Garrett Decatur Richardson, applying for remedial writ. Parish of Orleans.

Denied.


text:
    Succession of No. 17,962, Horace Eugene McINTYRE.
    No. 80-C-2764.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Marie Davis Doughty McIntyre, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Franklin. No. 14287.

Denied.


text:
    SOUTHERN NATURAL GAS COMPANY v. Barbara J. Matthews SUTTON et al.
    No. 80-C-2807.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Barbara J. Matthews Sutton, et al., applying for writs of certiorari, prohibition, mandamus and supervisory writs. Parish of Bienville. Nos. 24,557, 24,562, 24,569, 24,570, 24,573, 24,576, 24,577, 24,581, 24,582 and 24,594.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Mrs. Verlie Holton, wife of Fred B. CURTIS v. Fred B. CURTIS.
    No. 80-C-2613.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Mrs. Verlie Holton, wife of Fred B. Curtis, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 388 So.2d 816.

Granted.

MARCUS and LEMMON, JJ., recused.


text:
    Michael Don KEYS v. SAMBO’S RESTAURANT, INC., et al.
    No. 80-C-2618.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Michael Don Keys, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 389 So.2d 1360.

Granted.


text:
    Cyrus W. FRAZIER v. JUSTISS MEARS OIL COMPANY, INC.
    No. 80-C-2765.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Cyrus W. Frazier, applying for writ of certiorari and writ of review, to the Court of Appeal, Second Circuit. Parish of Caldwell. 391 So.2d 485.

Writ denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Vernon HENSON, Individually and on Behalf of the Minor, Travis Henson v. GRAIN DEALERS MUTUAL INSURANCE CO.
    No. 80-C-2770.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Grain Dealers Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Richland. 389 So.2d 442.

Denied. Result is correct.


text:
    MAINLINER MOTOR EXPRESS, INC. v. WINN STATE BANK & TRUST COMPANY.
    No. 80-C-2771.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Winn State Bank & Trust Company, applying for writ of certiorari and review, to the Court of Appeal, Second Circuit. Parish of Winn. 390 So.2d 932.

Denied.


text:
    Virginia Fryberger SELLWOOD v. Sidney G. MYERS, Jr.
    No. 80-C-2758.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Virginia Fryberger, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 389 So. 424.

Denied.

DENNIS, J., would grant the writ.


text:
    Kathy Newman MANLEY v. Gregory H. MANLEY.
    No. 80-C-2762.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Gregory H. Manley, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 389 So.2d 454.

Denied.


text:
    Clarence ARENA v. J. A. JONES CONSTRUCTION COMPANY et al.
    No. 80-C-2432.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Clarence Arena, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 387 So.2d 685.

Writ denied.


text:
    Joann G. USSERY v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 80-C-2143.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Joann G. Ussery, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 388 So.2d 134.

Denied.


text:
    Ricky L. WALKER v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 80-C-2144.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Ricky L. Walker, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 388 So.2d 135.

Denied.


text:
    William R. CRAIN v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 80-C-2146.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re William R. Crain, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 388 So.2d 135.

Denied.


author: STOKER, Judge. STOKER, Judge.

text:
    Louis WILLIAMS, Plaintiff-Appellee, v. NATCHITOCHES RECREATIONAL ASSOCIATION, Defendant-Appellant.
    No. 7885.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    On Rehearing Feb. 11, 1981.

      Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendant-appellant.
    Harrington & Harrington, C. Rodney Harrington, Natchitoches, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This litigation began as a suit by Louis Williams seeking reduction of the purchase price of property purchased by him for $150,000 from Natchitoches Recreational Association, a corporation. Louis Williams sought a reduction of $30,000. Natchitoch-es Recreational Association (hereinafter referred to as “Association”) answered and reconvened. In the reconventional demand the Association asserted that the price of the property sold by it to Louis Williams was $250,000, that Louis Williams had agreed to pay the price in the form of $150,000 in cash with the balance to be represented by a $100,000 mortgage note secured by a second mortgage on the property. The Association alleged that Louis Williams failed to execute the note and mortgage and therefore has not paid the full price agreed upon. The Association therefore demanded $100,000 from Louis Williams with interest and costs.

The trial court denied the claims of both Louis Williams (the main demand) and of the Association (the reconventional demand). All costs were assessed to Williams. The Association appealed devolutively from the denial of its reconventional demand.

FACTS

Louis Williams was interested in locating a garment factory in Natchitoches, Louisiana, to be known as Mary-Lou Fashions. Williams negotiated with Ben D. Johnson, Sr., president of the Association which owned immovable property including a building suitable for the manufacturing operation. (Ben D. Johnson, Sr. is referred to in this opinion as Ben D. Johnson, or simply as Johnson without the designation of “Senior”.) On November 10, 1976, Mr. Johnson sold Mr. Williams certain garment factory equipment for $25,001. This equipment was apparently located within the building mentioned above. The equipment was conveyed by Johnson personally and not by the Association. Williams gave his promissory note for $25,000 of the purchase price. This note was secured by a reservation of a vendor’s privilege (lien) on the equipment and a chattel mortgage given by Williams. The note was payable in installments.

On May 25, 1978, a cash sale was executed before a notary public who was the attorney for Louis Williams. This instrument was recorded on June 6, 1978. This cash sale described the immovable property about which the parties had been negotiating. The property description consists of the legal description of the land together with all buildings and improvements situated thereon. The description also included the following words: “This sale includes all machinery, equipments [sic], supplies, etc. now located in or attached to the building and/or improvements on said tract of land.” The cash sale was signed on behalf of the Association by Ben D. Johnson as president pursuant to a resolution of the Board of Directors of the Association dated May 28, 1978. The instrument of cash sale recites that the resolution “is attached hereto and made a part hereof.” The resolution was in fact attached to the sale. Both of these documents were introduced as the exhibit marked NRA-1. Tr. 6-S.

ACTION TO REDUCE

According to the uncontradicted testimony of Ben D. Johnson the equipment sold to Louis Williams belonged to Johnson personally. This sale took place on November 10, 1976. The price paid for the equipment was $25,001 and the conveyance was in authentic form. Williams paid $1.00 in cash and gave his mortgage note payable in installments for the balance of $25,000. The sale and mortgage list Ben D. Johnson, Sr., as the vendor and the note was made payable to the order of Ben D. Johnson, Sr. On January 8, 1979, Natchitoches Collection, Inc., transferee of Johnson, instituted a suit for non-payment of the note. In his answer to the collection suit, Louis Williams alleges there was a verbal agreement that Williams would not have to pay the note if Williams obtained a loan to purchase the business known as Mary-Lou Fashions with all its machines, equipment and supplies from Natchitoches Recreational Association. Williams alleges that inasmuch as this was done, he did not owe the note and under the verbal agreement the note should have been cancelled. Judgment was rendered in Johnson’s favor on this note and his vendor’s lien and privilege was recognized on May 4, 1979.

In view of the factual conclusion we draw, that the equipment was the property of Ben D. Johnson, Sr., Natchitoches Recreational Association was a third party to any agreements between Williams and Johnson. Hence, Williams had no right of action against Natchitoches Recreational Association for reduction of the price paid for the immovable on account of the movable contents which had already been purchased from Johnson.

PAROL EVIDENCE

Both parties rely on the cash sale which indicates on its face a cash consideration of $150,000. Both offered as evidence the instrument of cash sale together with the accompanying resolution of the Association, and these documents were received in evidence as exhibits on behalf of both parties. Exhibits P-2 and NRA-1. When reconve-nor sought to show that the true consideration for the sale was $250,000, counsel for Williams strenuously objected on the ground that the testimony and evidence violated the parol evidence rule. On behalf of Williams as defendant-in-reconvention counsel cited LSA-C.C. arts. 2275 and 2276 and the case of Johnson v. Compagna, 200 So.2d 150 (La.App. 1st Cir. 1967). In the brief filed before us on behalf of the defendants-in-reconvention, the additional cases of Durham v. Evans, 377 So.2d 423 (La.App. 2nd Cir. 1979) and Cordova v. Cordo va, 382 So.2d 1050 (La.App. 2nd Cir. 1980) are cited.

Objection was also made on the ground that evidence of an agreement at variance with the terms of the sale was outside the pleadings as the reconvenor had not pleaded facts in the nature of fraud or mistake.

In our opinion the facts of this case present circumstances justifying application of one of the recognized exceptions to the parol evidence rule. Parol evidence is admissible to clarify ambiguity in a written agreement to show the true intention of the parties. Smedes-Jardine & Co. v. Romero, 376 So.2d 333 (La.App. 3rd Cir. 1979); Renaudin v. Zapata Development Corp., 339 So.2d 942 (La.App. 4th Cir. 1976), writ refused, 341 So.2d 1123 (La.1977) and Gremillion v. Mouledous, 309 So.2d 897 (La.App. 3rd Cir. 1975), writ denied, 313 So.2d 826 (La.1975).

In view of the fact that the cash sale incorporates the Association’s resolution adopted by its Board of Directors and specifically makes the resolution a part of the instrument of sale, there is an ambiguity patent on the face of the whole instrument. Although the cash sale form as filled in purports to provide for a cash consideration of $150,000, it is clear that the Board of Directors of the Association intended that the consideration be $250,000. As a matter of fact the resolution indicates a second discrepancy, one relating to the contentions of the Association itself. It will be noted that the resolution provides for a cash payment of $127,000 and a second mortgage of $123,000. The Association's reconventional demand is specific in pleading that, although the resolution of the Association’s Board of Directors dated May 23, 1978, provided for cash of $127,000 and a credit of $123,000, when Louis Williams paid $150,000 in cash, the credit portion was to have been $100,000 secured by a second mortgage. Hence, we feel that a ratification of the change in the credit terms by the Association resulted.

From the standpoint of pleading it is true that in the reconventional demand the reconvenor did not use any such words as fraud, ill practice, error or mistake to denominate the basis of its reconventional demand. Nevertheless, the facts on which the Association relies are fully pleaded. We consider this to be sufficient. LSA-C.C.P. arts. 854, 856 and 2164. See Demars v. Natchitoches Coca-Cola Bottling Co., 353 So.2d 433 (La.App. 3rd Cir. 1977), writ denied, 354 So.2d 1384 (La.1978) concerning the abrogation of the “theory of the case” doctrine.

For the foregoing reasons we conclude that’an exception to the parol evidence rule should be made in this case. The trial court admitted the parol evidence subject to the objections made. In its reasons for judgment the trial court concluded that Article 2236 and 2276 prohibited the use of parol “except in cases alleging fraud, forgery, ill practice, etc.” The trial court held that there were no allegations of such practices in the pleadings, and it denied the recon-ventional demand. We disagree with this conclusion and will proceed to consider the parol evidence.

FACTS CONSIDERED UNDER EXCEPTION TO PAROL EVIDENCE RULE

The uncontested testimony reveals that negotiations between Louis Williams and the Association extended over several years. Williams contends that he was originally approached with a proposition to come to Natchitoches upon representation by Ben D. Johnson that the garment facility as a whole could be acquired for around $175,-000. Johnson admits that there were several preliminary proposals. Williams initially entered into a lease-purchase agreement for the building in question to use in his manufacturing business. Exhibit P-3. This transaction took place on November 10, 1976. The sale of the movable equipment by Johnson to Williams took place on the same day. The lease-purchase agreement contained an option under which Williams was given the right to purchase the building and land on which it stood for $150,000. The agreement required Williams to give written notice of intention to exercise the option by September 1, 1977. Williams admitted that he never did give notice of intention to exercise the option. Tr. 72. Therefore, he lost this option right.

Williams related that he went to see Johnson in the first part of 1978 to tell him that he was ready to buy the garment factory property. He assumed it was still available at $150,000, but Johnson told him that if he wanted the property it would cost him $250,000. Williams testified that this change of price came as more than a surprise to him. Tr. 74. It came as a shock and he was unprepared to purchase at that price. Although Williams was closely questioned as to whether Johnson on behalf of the Association ever agreed to sell for $150,-000 after the price was raised to $250,000, Williams never claimed that a new agreement was made to reset the price at $150,-000. In fact, Williams’s testimony makes it clear that the Association through Johnson stuck to its total price of $250,000. Tr. 76 and 77.

Louis Williams explained that he arranged a package loan of $250,000 from First State Bank and Trust Company of Edinburg, Texas. The loan proceeds were allocated $150,000 to land and building (the immovable), $25,000 for the machinery and $75,000 for operating expenditures. (At that time Williams still had not paid the $25,000 note he had given Johnson in payment for the machinery and equipment.) Despite Williams’ assertion that he could not pay more than $150,000 for the land and building, he approached the sale knowing that the Association’s price for the land and building was $250,000. Williams never satisfactorily explained how he expected the transaction to take place, but he states that when he saw the prepared act of cash sale which recited a consideration of $150,000, he took that to mean that the price would be $150,000. Tr. 77. Williams stoutly denied he ever agreed to give a second mortgage note to make up the difference between the cash of $150,000 which he gave and $250,000.

Louis Williams was represented in his financing efforts and in the sale by Mr. Andrew S. Vallien, a Natchitoches attorney. Mr. Vallien contradicts Louis Williams, his own client, and agrees with the version of the transaction related by Ben D. Johnson. Mr. Vallien testified as follows on the matter:

“CROSS-EXAMINATION
BY MR. HARRINGTON:
Q. [Mr. Vallien], I assume it’s a pretty common practice for you to prepare cash sale deeds. You do it fairly often?
A. Yes, I do.
Q. In preparing those, do you normally cite as, where the cash sale deed calls for consideration, do you normally cite the entire selling price of the property?
A. Normally.
Q. Do you do that on every occasion?
A. Well, since we said normally, that is the practice and in every occasion I would think so, but then perhaps not.
Q. Okay. The cash sale deed form, I think, entered into evidence, you know as an attorney, as I know, calls for the entire consideration, the entire purchase price to be paid for the property. If there was any other type of consideration to be paid other other than cash in hand paid that date, should it be included on that cash sale deed?
A. Well, would you like for me to explain what happened in this one or just answer your question?
Q. Both.
A. All right. Well, I would say it should be included in the cash sale deed. In this particular case, the hundred and fifty thousand dollars was from the Natchitoches Recreational Association to Mary Lou Fashions, Louis Williams. There was an understanding, a side understanding, between the president of the association, Ben Johnson, and Mr. Louis Williams that a second mortgage would be given which would not be included in the cash sale deed. The purpose of not making it a part of that hundred and fifty thousand sale was not to jeopardize the approval of the application from S.B.A., the Small Business Association, and that is why it was two separate — there was an understanding between the two.
Q. Was this hundred thousand dollars, was it to be, as far as your understanding is concerned, to be paid to Mr. Johnson personally or to Natchitoches Recreational Association?
A. Well, I would think to Natchitoches
Q. But you don’t know?
A. I have a strong suspicion.
Q. Well, how about the mortgage you prepared. Who was that to?
A. The Natchitoches Association, uh — I could look at it, but I would — since we were dealing with the Association, I would think it was made to the Natchi-toches Association, Recreational Association.
Q. You don’t recall exactly how that mortgage that you prepared was made out?
A. Well, in fear of contradiction, I would say I don’t recall right off.
Q. Did you know at the time of this closing about this so-called side agreement?
A. Oh, yes.
Q. Did you explain or did you make Mr. Johnson or Mr. Williams, for that matter, aware that at the time that deed was recorded or at the time both parties signed that deed — and again, as an attorney I’m sure you know this — that the sale was consummated, that the sale was valid as far as the public records are concerned?
A. Well, at that time I represented Mr. Williams and when he asked me to assist him to give this S.B.A. and explained to me what he wanted to do, of course, I visited Mr. Johnson, and that’s when the procedure or the method and how to do it was agreed. Of course, I represented — my prime concern was to represent Mr. Williams, but in Mr. Johnson, I took on a quasi representation of Mr. Johnson, the Natchitoches Recreational Association, also in that it was like a trust or an understanding that, “Look, you continue this,” and, I don’t know, it was just a degree of trust. In the end, it didn’t go through. You know, he changed his mind about it, and I guess, I discussed it with Mr. Williams because of the big misunderstanding and I guess I discussed it with Mr. Williams, and in the end Mr. Williams decided not to sign it, of course.
Q. Did Mr. Williams ever say to you, prior to the closing, did he ever say to you, “Well, I know — yes, I agree or I know I’ve got to pay this extra hundred thousand dollars.”
A. Well, he recognized that if he signed it, then that was more binding than not signing it even though we both — we suspected that eventually, you know, it was going to come to a head. Mr. Johnson called — when we didn’t get it signed, Mr. Johnson started calling, you know, “Where is that second mortgage?” I guess I realized that he relied on me to get it done and I put him off and said, “Look, I’m going to get it,” but I never did get it.
Q. Why was this so-called second note and mortgage, assuming there is one, why was it not done at the time of closing? Wouldn’t that have been the simplest way and safest way to do it?
A. Yes, it would have. For convenience, it was not convenient for everybody to meet at the same time. I personally went to Mr. Johnson’s office and Mr. Williams came to my office. His wife came to my office at different times, but all of it was done before me.
Q. Did Mr. Williams — were you and Mr. Williams and Mr. Johnson all present when that deed was signed? Were you all present at the same time, in other words. Do you recall?
A. The hundred and fifty thousand?
Q. Yes.
A. I’m not sure, I don’t recall. We all met at Mr. Johnson’s office.
Q. Okay. So you all did meet there for the signing?
A. Well, now it was for the signing we all did meet. Now whether or not it happened then or not, I don’t know.
Q. Okay. And I guess what I’m asking is if there was an extra hundred thousand dollars to be paid, why wasn’t there a note and mortgage ready at that time that you all met to sign that. Why wasn’t there one ready for Mr. Williams to sign at that time?
A. Well, I think what happened, we met at Mr. Johnson’s office to try to get him to maybe sell it for a hundred and fifty thousand, and when he couldn’t agree, the note was — I went back and just made the two separate notes when I understood that it was not to jeopardize the S.B.A. approving his loan. Because had we included the second mortgage, then the S.B.A. would not have— the loan would not have been approved. It was for convenience. If you want to go further, I could go further. What led up to the hundred and fifty instead of the two hundred and fifty.
Q. Just let me — I’m hoping I m not covering old ground again here. When they talked to you about this hundred thousand dollar agreement, this was to be outside this entire transaction. I mean, this was ...
A. It was in the same transaction, but just on a different — not incorporated. I mean, it was a corollary, all acting in one, but it was just separate, you know.
Q. Was the mortgage to be recorded, or do you know?
A. Oh, yes.
Q. Was the mortgage on that — was it a second mortgage on that property?
A. It was a second mortgage going to that. The first one was to S.B.A. The second one to, uh — would you like for me to explain the dispute?
Q. Yes, go ahead.
A. Okay. I guess, when Mr. Williams first decided to open the garment factory, he entered into a lease agreement for a year, a purchase-lease agreement, and provided within — I don’t recall the date —say, March 1st of “X” year, he would have purchased it for a hundred and fifty thousand dollars. But then when Mr. Williams decided to purchase it, it was beyond the term of the lease at which time the price had changed from a hundred and fifty to two hundred and fifty, so that’s when ...
Q. Okay. Now, you said that the one hundred and fifty thousand dollar consideration was cited in order to keep Mr. Williams within bounds of the S.B.A. requirements. Is that right?
A. Right.
Q. Well, this so-called extra one hundred thousand dollars which was going to be evidenced by a mortgage and note which you testified would be recorded in the public records, if that would have been done, the public records would show that — would show that Mr. Johnson had a hundred thousand dollar — that there was two hundred and fifty thousand was the price actually being paid of it. So you’re back to the same thing, aren’t you? I mean, how is it going to help it if — so it’s two separate documents. It’s going to be showing the same thing. It’s still going to be showing, isn’t it, the two hundred and fifty thousand dollars would be his indebtedness?
A. Well, I don’t know. If a hundred and fifty (inaudible) was actually paid and the balance of a hundred, then as far as the Recreational was concerned was solely for a hundred thousand dollars; they had already received a hundred and fifty. They were concerned with a hundred thousand.
Q. Was your testimony — you said you don’t know who the mortgage was to, is that right? You don’t know if it was to Ben Johnson personally or to Natchi-toches Recreational?
A. Well, it would — Mr. Johnson was the president of the — I would imagine it was to the Natchitoches Recreational Association/Ben Johnson, President. I don’t know; I can find out.
Q. Let’s assume that that second mortgage — I’m not saying it was — but let’s assume that it was to, made to Ben Johnson personally. Would it then, in that way, would it affect the S.B.A. money? Would it have affected the S.B.A. money?
A. Well, had it been shown that the property was being sold for two hundred and fifty thousand dollars instead of a hundred and fifty thousand, then it would have affected it because the S.B.A. was prepared to — you know, they had already received this information, the original application, and to change it would have jeopardized that approval of the application of the loan.
Q. On the deed — if you need me to show it to you, I will — but it says that the property included in the sale was all equipment located on the premises, on and about the premises. Did — now Mr. Williams has testified earlier that it was his understanding that this would also include the equipment that he had earlier purchased from Mr. Johnson and that this money would — that that note would be paid off, in other words. He had a twenty-five thousand dollar note for equipment that he had earlier purchased from Mr. Johnson and it was his understanding that this purchase was for all the equipment, including that. Admittedly, it was owned by Mr. Johnson, personally. That was his understanding that he says he got from you and that that twenty-five thousand dollar note and mortgage would be can-celled at that time. Do you recall anything about that?
A. I guess. I know that there was a clear understanding in Mr. Williams’ mind exactly what was going on. It was a clear understanding in my mind. It was a clear understanding in Mr. Johnson’s mind. The big dispute occurred when Mr. Williams did not sign the second mortgage. Now, the inventory, I think, was included in the sale.”

After the cash sale had been signed Mr. Vallien was never able to get Louis Williams to sign the second mortgage. Tr. 86.

A reading of the testimony of Ben D. Johnson makes it clear that he raised the question of the $100,000 note at the signing of the sale at his office. He testified, however, that he was of the impression that the second mortgage and note were signed simultaneously with the signing of the sale. Tr. 60. He explained that he had faith in Mr. Vallien and that he customarily placed such faith in attorneys he selected for himself. He stated he still had faith in Mr. Vallien. Although Mr. Vallien represented Louis Williams, Ben D. Johnson asked Val-lien to prepare the second mortgage for him. Tr. 59. In other words, Johnson trusted Vallien to obtain the signature of Williams on the second mortgage and note before finalizing the transaction.

In Johnson’s testimony he explained that he was fully apprised of Williams’ financing problems. He agreed to the arrangement of a transaction that would show a $150,000 cash sale with a second mortgage to represent the balance of the purchase price in order to accommodate Williams and enable him to get his loan. Tr. 61-67. The resolution adopted by the Association’s Board of Directors authorized a second mortgage for $123,000 which evidences that board’s recognition that it would not obtain a vendor’s lien and privilege on the property sold. Thus, except for the change from credit of $123,000 to $100,000, the arrangement which Johnson and Yallien maintain was agreed upon was consistent with the corporate resolution. Thus, Johnson expected the act of cash sale to show a total consideration of $150,000 in cash. Nevertheless, he expected the Association to receive the second mortgage note for $100,000.

In addition to the testimony and evidence discussed above, the reconvenor introduced over objections a real estate appraisal of the subject property by T. J. Stephens of Stephens Appraisal Service. NRA-5. As of July 11,1977, Mr. Stephens appraised the property and assigned a total value to it of $283,016.

On the basis of the foregoing facts it is our belief that it was the understanding of Louis Williams, his attorney and Ben. D. Johnson that Williams was going to sign a second mortgage and note in the amount of $100,000 so as to effectively pay the Association $250,000 for the property purchased. It was understood by all that the act of sale should not show a total sale price of $250,-000 as that would prejudice Williams’ financing arrangements. In order to suit Williams’ purposes, the Association was willing to take the balance of the purchase price, $100,000 in the form of a second mortgage note. It is not clear just what took place in connection with the sale at Johnson’s office, but it would appear that once Johnson and Williams signed the,act of sale, the latter thereafter refused to sign the second mortgage note.

CONCLUSION

We have given some consideration to the form of relief to be granted to the reconve-nor which, in view of the substitution of parties, is Winnfield Life Insurance Company. We will affirm the denial of the demand of plaintiff Louis Williams. In the reconventional demand filed by the Association it demanded judgment for $100,000 with legal interest from date of judicial demand and for costs. Under LSA-C.C.P. art. 2164, we might grant judgment ordering Louis Williams to execute and deliver to reconvenor a note for $100,000 secured by a second mortgage on the purchased property and in default thereof that there be judgment in favor of reconvenor as prayed for. However, not knowing the exact terms which the parties had agreed upon for the note, we could only order that the note be payable on demand. We have concluded that a simple judgment in conformity with the demand with legal interest from date of judicial demand will place reconvenor in substantially the same position as it would enjoy if the second mortgage were given now. The judgment itself will act as a judicial mortgage on the property acquired by defendant-in-reconvention, Louis Williams.

For the foregoing reasons we affirm so much of the trial court judgment as denied recovery on the main demand by plaintiff Louis Williams asserted against defendant Natchitoches Recreational Association; we reverse the trial court judgment insofar as it denied recovery to Winnfield Life Insurance Company, substituted plaintiff-in-re-convention.

It is now therefore ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff-in-reconvention, Winn-field Life Insurance Company, in the full sum of $100,000 together with legal interest thereon from date of judicial demand until paid, together with all costs of these proceedings to include the costs attributable both to the principal or main demand and the reconventional demand. All costs of this appeal are assessed to Louis Williams.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

ON REHEARING

STOKER, Judge.

We granted a rehearing in this case on the application of Louis Williams, plaintiff-appellee, for consideration on written briefs without oral argument. At the original hearing counsel for defendant-appellant and reconvenor did not appear. Counsel for Louis Williams appeared and argued on behalf of Louis Williams. In the application for rehearing counsel asserts that when he orally argued at the original hearing, expressions of all three members of the panel of judges amounted to a representation by them that they agreed with his client’s position. As a result counsel suggests he was made to feel that further oral argument was superfluous and unnecessary. Thus he claims he was denied the opportunity to make adequate oral argument. The application asserts that the opinion rendered by us “went completely contrary to the verbal representation made at the hearing.”

We are at a loss to understand how any expressions from the bench by any of the panel members could be construed as a “representation” at oral argument that a particular party will prevail. In this case we are unable to recall any expressions which counsel might have construed as such a representation that plaintiff would prevail, thus obviating the need for persuasive argument. Although counsel’s brief fully treated the issues, we granted this rehearing out of an abundance of concern that counsel may have reasonably misinterpreted any comments made from the bench.

In plaintiff-appellee’s application for rehearing he complains that our opinion on original hearing failed to address plaintiff-appellee’s arguments concerning the doctrine of apparent authority. On the original hearing we did not find this doctrine or principle apropos to the facts of this case. Plaintiff-appellee referred us to three cases applying the doctrine: Analab, Inc. v. Bank of the South, 271 So.2d 73 (La.App. 4th Cir. 1972); Crown Zellerbach Corp. v. International Grain Corp., 213 So.2d 53 (La.App. 1st Cir. 1968), writ denied, 252 La. 958, 215 So.2d 128 (1968); and Wolff v. Caddo-Bossier Safety Council, Inc., 168 So.2d 913 (La. App. 2nd Cir. 1964). Those cases concern controversies in which corporations sought to be held liable defended on the ground that the corporate officers or officials who purported to act for the corporations lacked authority to represent or bind the corporations. Here the controversy is not over whether Ben D. Johnson had authority to act for the corporation, Natchitoches Recreational Authority, but rather what was the agreement which he made. In this regard, Mr. Johnson and the corporation take the same position. The Association by its re-conventional demand sought to enforce the obligation on the terms that Johnson maintains were the terms of the agreement of sale. There is no issue here growing out of a repudiation by the Association of Johnson’s acts for the corporation. Hence, there is no occasion for application of the doctrine of apparent authority.

Plaintiff-appellee would have us hold that Johnson deviated from his authority but was veiled with apparent authority and thus could enter into an act of sale of an immovable in contravention of the terms of the corporate resolution attached to and specifically made a part of the act of sale. As we have held, Johnson did not deviate from the terms of the corporate resolution insofar as the resolution reflects that the total consideration was $250,000.00. It is true that a deviation was made in the Association’s favor with reference to the portion of the price to be paid in cash and the portion to be represented by a note secured by mortgage. On original hearing we noted that the Association ratified this deviation.

Other than the point discussed, the brief of plaintiff-appellee is largely directed to our factual findings and evaluation of the credibility and alleged dual representation of both parties by Mr. Andrew Vallien. After considering these arguments we adhere to our original views and our application of the exception to the parol evidence rule.

For the reasons set forth above our judgment on original hearing is reinstated and made the judgment of this court.

      . This matter came to trial on February 29, 1980. At the beginning of the trial, Winnfield Life Insurance Company was substituted as defendant and plaintiff-in-reconvention in place of Natchitoches Recreational Association on suggesting that the former had acquired all the assets and liabilities of Natchitoches Recreational Association. See signed order at Tr. 99, testimony at Tr. 45 and instrument of transfer dated July 27, 1979, introduced as Exhibit NRA-4. Despite this substitution the trial court’s judgment refers to the reconvenor as Natchitoches Recreational Association. In this appeal we will continue to treat the Natchitoch-es Recreational Association as the reconvenor.

      . The resolution of the Board of Directors of Natchitoches Recreational Association reads in full as follows:
      MINUTES OF A MEETING OF the Board of Directors of the Natchitoches Recreational Association, May 23, 1978.
      BE IT KNOWN, That a meeting of the Board of Directors of the Natchitoches Recreation Association was held at Natchitoches, Louisiana, on Tuesday, the 23rd day of May, 1978, with a quorum present.
      The President stated that Louis Williams d/b/a Mary-Lou Fashions offered to purchase for $250,000.00 the lot, building and equipment and machinery which he is now leasing from the Natchitoches Recreation Association. He stated further that Louis Williams, d/b/a Mary-Lou Fashions will continue its present business and offer good employment for many persons throughout the community, and that in his opinion the sale is a good venture. After some discussion, the following motion was made by H. J. Williams, and seconded by F. M. Richardson, and carried, to wit:
      BE IT RESOLVED, That the Natchitoches Recreation Association does accept the offer from Louis Williams, d/b/a Mary-Lou Fashions to buy the lot of land, the building thereon, and the equipment, machinery and supplies which he is now leasing, for a price of $250,000.00.
      BE IT FURTHER RESOLVED, That on the day of the sale Louis Williams, d/b/a Mary-Lou Fashions will pay the Natchitoches Recreation Association $127,000.00 cash, and give them a second mortgage for the balance of One Hundred Twenty-three Thousand and no/100 ($123,000.00) Dollars.
      BE IT FURTHER RESOLVED, That the President, Ben D. Johnson is authorized to do each and every act necessary and proper in these premises in order to carry out the purpose and intents of this resolution. May 23, 1978.
      s/ Ben D. Johnson Ben D. Johnson
      s/ H. J. Williams H. J. Williams
      s/ Edward Ward. Jr. Eward Ward, Jr.
      s/ Johnetta Johnson Johnetta Johnson
      s/ F. M. Richardson F. M. Richardson

      . The pertinent articles of the Louisiana Civil Code are articles 2236, 2275 and 2276. These read in pertinent part as follows:
      Art. 2236. The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.
      Art. 2275. Every transfer of immovable property must be in writing ...
      Art. 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

      . In an amended answer to the reconventional demand, Louis Williams alleged that “Ben D. Johnson had the authority to change the terms of the sale to Louis Williams notwithstanding the resolution of the Board of Directors of Natchitoches Recreational Association.”


author: PONDER, Judge.

text:
    George Leon LEMOINE, Jr. et al. v. Kermit L. HEBERT et al.
    No. 13853.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    James J. Zito, Baton Rouge, counsel for plaintiffs-appellees, George Leon Lemoine, Jr., and Janis L. Lemoine.
    E. Clark Gaudin, Baton Rouge, counsel for defendant-appellant, Kermit L. Hebert.
    Henry H. Lemoine, Jr., Pineville, counsel for defendant-appellant, Patricia H. Hebert (Vallery).
    Robert R. Rainer, Baton Rouge, counsel for third party defendant-appellee, L. S. Bridges d/b/a Bridges Pest Control.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment reducing the purchase price of a home and awarding attorney fees.

The issues are: the existence of a latent defect in the home, quantum and attorney fees.

We affirm.

Several years after building the house defendants made significant alterations. They removed the rear wall of the house and poured a new slab abutting the original slab, without an expansion joint. Shortly thereafter, the new slab began to settle, causing a crack between the original slab and the addition, which was subsequently covered by carpeting and tile. Defendants resided in the home several years. After plaintiffs moved into the house, a series of defects became evident. Plaintiffs repaired the air conditioner, plumbing, a leak in the roof and replaced the oven. After plaintiffs decided to sell the house and listed it with a realtor, they discovered a serious termite infestation. An investigation of the costs of tearing out the wall to treat the termites revealed the structural defect in the home. Plaintiffs then noticed widening cracks throughout the house, particularly in the living room and master bedroom, where the walls were separating from the ceiling. They also found the outer walls cracking in front and back. They took the home off the market and brought suit against defendants for a reduction of the purchase price and for attorney fees. The trial court found the structural damage was a defect sufficient to warrant a reduction in price. He awarded plaintiffs $8,000.00 to repair and attorney fees of $1,200.00.

To recover in an action in quanti minoris, a party must prove a latent defect, its existence at the time of sale, and the extent of reduction. LSA-C.C. Arts. 2520, 2521, 2530, 2541 and 2544. Defendants argue the defect is not latent because it occurred ten years prior to plaintiff’s purchase. Defendant has misconstrued the requirements for an action in redhibition or quanti minoris. A latent defect is one which cannot be discovered by simple inspection. LSA-C.C. Art. 2521; Bermes v. Facell, 328 So.2d 722 (La.App. 1st Cir. 1976).

Plaintiffs visited the home on several occasions prior to purchase but did not notice any evidence of major structural damage. The trial judge visited the home as well, and was unable to observe obvious signs of structural damage. We find the court did not err in finding the home possessed a latent defect.

Defendants next allege there is no testimony to indicate the home was not fit for the use for which it was intended. He claims plaintiff’s attempt to sell the home for profit reflects somehow on the condition of the premises. Not only has settlement caused the slab and walls to crack, but, according to plaintiffs’ expert in structural engineering, improper weight distribution caused by the removal of the support wall, is pulling the original roof down. Due to the difference in span directions of the older and newer roof portions, a valley on the “L” side of the addition is slowly opening up. Eventually plaintiffs will have very serious problems with the roof. Both plaintiffs testified they would not have purchased the home had they known of the structural defects. We find no error in the trial court’s finding the defect warranted a reduction in price.

Defendants next contend plaintiffs failed to prove the amount of money necessary to correct the defect. The measure of recovery in an action is quanti minor-is involving a building is the amount necessary to convert the unsound structure into a sound one. Fraser v. Ameling, 277 So.2d 633 (La.1973). Plaintiffs’ expert in structural engineering estimated the cost to remedy the structural damage to the house would range from $8,000.00 to $12,000.00. Although the figure is not precise and admittedly a rough estimate, it is the result of many hours of inspection and study of the home by the expert; the court has reasonable discretion to assess the amount based upon the facts and circumstances of the case. Cf. Jordon v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). We cannot say the court erred in accepting $8,000.00 as a minimum figure to repair the home.

Defendant last claims the plaintiff should not be awarded attorney fees. LSA-C.C. Art. 2545 reads:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Both defendants testified they were aware of the differential in the elevation between the older and newer portions of the house and the cracked walls and slabs. They also testified they never apprised plaintiffs of the defect in the addition. We find no error in the court’s award of attorney fees.

For the above reasons, the judgment of the trial court is affirmed at appellants’ expense.

AFFIRMED.

      . LSA-C.C. Art. 2520:
      “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
      LSA-C.C. Art. 2521:
      “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”
      LSA-C.C. Art. 2530:
      “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”
      LSA-C.C. Art. 2541:
      “Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”
      LSA-C.C. Art. 2544:
      “The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”