source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Billy Mack CALDWELL, Plaintiff-Appellant, v. TEXAS INDUSTRIES, INC., d/b/a Louisiana Industries, Defendant-Appellee.
    No. 14932.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      Albert W. Block, Jr., Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, III, Monroe, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff appeals a district court judgment dismissing his personal injury action after the presentation of his case in chief, pursuant to La. C.C.P. Article 1810(B). The following issues are posed on appeal:

(1) Did the trial judge apply the incorrect standard of proof in ruling on the motion for a directed verdict?
(2) Even if the trial judge applied the correct evidentiary test, did plaintiff fail to discharge his burden of proof?

Finding that the trial judge correctly applied the “preponderance of evidence” standard of proof in ruling on the motion for a directed verdict, but was clearly wrong in concluding that plaintiff had failed to discharge that burden, we reverse and remand.

Plaintiff alleged in his petition that on February 22, 1977, he was employed as a carpenter by Redrock Construction Company (“Redrock”), the general contractor on an expansion project for Olinkraft, Inc. in West Monroe; that, pursuant to a sales contract with Redrock, Texas Industries, Inc., d/b/a Louisiana Industries (“L.I.”) was furnishing concrete for the expansion project; that a driver of one of the L.I. concrete trucks washed out the tank of his vehicle and negligently left a residue of wet concrete on a paved street in the area where plaintiff was working; and that on February 22, 1977 plaintiff stepped on the wet concrete, slipped and fell, and suffered disabling back injuries for which L.I. is assertedly liable in damages.

At the trial on the merits, after plaintiff concluded the presentation of his case in chief, defendant moved that plaintiff’s action be dismissed under the provisions of Article 1810(B). In sustaining the motion, the trial judge ruled that plaintiff had failed to prove his case by a preponderance of the evidence and, specifically, failed to prove that an employee of L.I. had “dropped or left or failed to clean up the specific concrete that Mr. Caldwell fell in.”

Plaintiff argues that, rather than applying the “preponderance of evidence” standard of proof, the trial judge should have simply determined whether plaintiff’s evidence was such that reasonable and fair minded men could not have arrived at a verdict in his favor. This contention is clearly without merit. As we pointed out in Gleason v. City of Shreveport, 393 So.2d 827 (La. App. 2d Cir. 1981):

“Unlike a motion for a directed verdict in a jury trial, La. C.C.P. Art. 1810(B) requires a judge to evaluate all of the evidence and render a decision based upon a preponderance of the evidence without any special inferences in favor of the opponent to the motion, (citation omitted) Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not (citations omitted).”

Also see Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La. App. 4th Cir. 1981).

Consequently, we find that the trial judge applied the correct standard of proof in ruling on defendant’s motion to dismiss under Article 1810(B).

We now turn to the correctness of the dismissal itself.

On the critical issue of proof that an employee of L.I. spilled or deposited on the street the wet concrete on which he fell, plaintiff testified for himself and also presented the testimony of his foreman, Kenneth Carpenter; a fellow worker, Archie Smith; and his union business agent, Robert Gambino.

As explained in a general way by this testimony, in connection with the expansion project in question, Redrock’s carpenters were preparing and setting forms into which concrete (delivered by L.I.’s trucks) was poured. A blacktop road, use of which was restricted to construction vehicles, ran in the vicinity of the work site. When the forms into which the concrete was to be poured were near the blacktop road, LJ.’s drivers simply stopped their trucks at the edge of the road and, by the use of chutes, poured directly into the forms. Invariably, this process resulted in some spilled concrete which the truck drivers were responsible for removing or cleaning up.

When the forms were too far from the road for direct pouring of concrete through chutes from L.I.’s trucks, the concrete was conveyed to the forms by several methods— wheelbarrows, concrete conveyors, or “cherry pickers” (hydraulic cranes with bucket attachments). These various implements or conveyors were under the control of Red-rock employees, who were responsible for the concrete upon its deposit into any of them for transport to the forms. Spillage of concrete during this conveyance process was also common.

Plaintiff testified that at midmorning on February 22, 1977, in connection with his work he was carrying the back end of a 4 x 8 plywood form down the described blacktop road when he stepped into some wet concrete residue and fell on his back. He described the substance on which he slipped as “drippings from chutes and left over concrete, more water, sand and cement than it was rocks, and approximately 18 inches in diameter by one inch thick.” It was situated near the edge of the blacktop road. Plaintiff had seen a concrete truck belonging to L.I. in the vicinity that morning.

Plaintiff’s foreman, Carpenter, stated that he saw plaintiff slip and fall on the wet concrete residue, and immediately examined the material which had been deposited on the edge of the blacktop road. He described it as looking like “concrete when you pour it out and it sets a little bit, water accumulates on the top and a thin film of cement ... looks kind of like mud, brown like mud or something.” Carpenter said that the puddle was about three feet in diameter and its appearance was consistent with spillage from a concrete chute.

Carpenter testified that, although concrete trucks owned by other parties could conceivably travel this blacktop road, he had observed only L.I.’s concrete trucks on it the morning of plaintiff’s accident.

Smith also witnessed plaintiff’s accident and inspected the site of the slip and fall, which he described as an 8' x 10' wet area where it appeared that someone had washed out a concrete truck. In fact, Smith testified that he had seen one of L.I.’s concrete trucks parked at that location on the morning of plaintiff’s accident. Smith denied having observed concrete trucks belonging to anyone other than L.I. in the area that morning.

Smith further stated that, on the morning in question, neither “cherry pickers” nor other methods of conveying concrete were in use at the job site since the forms were close enough to the blacktop road for L.I.’s trucks to pour directly through their chutes.

Gambino simply corroborated the testimony of the other witnesses that L.I.’s concrete trucks were at the work site on the morning of plaintiff’s accident.

Concededly, no witness testified that he actually observed one of L.I.’s truck drivers deposit on the blacktop road the concrete residue on which plaintiff slipped. However, as can be gleaned from our summary of the evidence presented by plaintiff, the following unrefuted salient points were made: L.I.’s concrete trucks, and no other, were traveling this blacktop road on the morning of the accident, and one truck was seen parked in the vicinity of the spot where plaintiff fell; the texture of the material on which plaintiff slipped appeared consistent with that washed out of a concrete truck; the location of the concrete residue near the edge of the blacktop road was consistent with its being deposited from a concrete truck rather than by some other method; neither “cherry pickers”, wheelbarrows nor other concrete conveyors were being used on the morning in question, negating the spillage of the concrete residue by one of these devices; and water on the surface around the concrete residue indicated it had been washed out of a truck rather than thrown on the road by one of Redrock’s carpenters or laborers.

We can only conclude, based upon this unrebutted circumstantial evidence, that plaintiff proved it was more probable than not that the concrete residue on which he slipped was deposited by one of L.I.’s truck drivers, who was responsible for but failed to clean up or remove the material from the surface of the blacktop road. Consequently, at the conclusion of the presentation of his case in chief plaintiff had proved defendant’s negligence by a preponderance of the evidence. The trial judge was clearly wrong in holding to the contrary.

For these reasons, we reverse the judgment of the district court dismissing plaintiff’s suit, overrule the motion to dismiss, and remand the case to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to appellee.

      . B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.


author: MARVIN, Judge.

text:
    MID-SOUTH MORTGAGE COMPANY, Plaintiff-Appellant, v. George BARTMESS, Defendant-Appellee.
    No. 14933.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.

      Traylor & Kramer by Chet D. Traylor, Winnsboro, Lensing, Gravel, Nelson & Rosenzweig by James L. Nelson, New Orleans, for plaintiff-appellant.
    Smith, Taliaferro, Seibert, Boothe & Pur-vis by Leo Boothe, Jonesville, Samuel T. Singer, A Professional Law Corp. by Johnny R. Boothe, Winnsboro, for defendant-ap-pellee.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   MARVIN, Judge.

In this action on a promissory note given to a mortgage broker as a commission for procuring a loan commitment for the defendant-maker, the broker appeals a judgment rejecting its demands.

The record supports the conclusion that the commission was not “earned” in the sense that the note was executed without “cause” or consideration. See Seymour v. Franek, 5 So.2d 394 (La. App. Orl. 1942); LRS 10:3-408, La. C.C. Arts. 1893, 1896-1900.

Even should we agree arguendo that a promise to pay still presumes a cause or consideration, this presumption, when recognized, has not been held to be conclusive or irrebuttable. Fontenot v. Estate of Vidrine, 401 So.2d 584 (La. App. 3d Cir. 1981). The issue in this appeal is whether the broker “earned” its commission by producing a lender able, ready, and willing to lend on the borrower’s terms. Seymour, supra; Avery v. Helwick, 166 So. 507 (La. App. Orl. 1936).

FACTS

On October 31, 1979, the defendant Bart-mess, a domiciliary of Franklin Parish, contracted with Bayou Lafourche, Inc., to buy approximately 4,700 acres of farmland in Avoyelles Parish which Bayou agreed to sell for almost $4.4 million cash, with the final $3.8 million of the purchase price being payable on or before December 4, 1980. Under the terms of that contract, Bartmess paid $550,000 in four periodical cash payments in 1979 to keep the buy and sell agreement in force and avoid forfeiture of payments made to Bayou,

Bayou had borrowed $11 million from Northwestern Mutual Life Insurance Company earlier in 1979 and this indebtedness was secured by a mortgage on almost 20,000 acres of Bayou lands and by the personal guarantee of Albert Prevot, sole stockholder of Bayou, who negotiated the buy and sell contract on Bayou’s behalf with Bart-mess. The 20,000 acres included the 4,700 acres in the Bartmess-Bayou contract. In his testimony in this action, Bartmess explained that he first sought to obtain financing for the final $3.8 million payment from Connecticut Mutual [Insurance Company] but that these negotiations were unsuccessful because that company would lend the money only through Prevot, with Pre-vot also being liable for the indebtedness to Connecticut, a proposal to which Prevot would not agree.

Shortly after executing the buy and sell agreement, Bartmess agreed with Mid-South Mortgage, Inc., the plaintiff in this action, to pay a $60,000 commission if Mid-South succeeded in obtaining a loan commitment for Bartmess.

On behalf of Bartmess, Mid-South contacted Northwestern, the company which had made the $11 million loan to Bayou. After some negotiation, Mid-South obtained this letter agreement dated August 12, 1980, from Northwestern which in effect would allow Bartmess to assume the Bayou Lafourche, Inc. existing mortgage:

“Northwestern ... has agreed to the following modifications to our loan [with Bayou Lafourche, Inc.] provided the loan is current:
“1. Release all of our security except 3,024 acres under contract to George Bartmess.
“2. Consent to the sale of our remaining security (3,024 acres) to George Bart-mess.
“3. Reduce our loan to $2,100,000.
“4. Obtain the liability of George Bart-mess.
“5. Retain the liability of Albert Prevot.
“6. Increase the interest rate on the loan to 11% effective October 1, 1980.
“7. Decrease required principal and interest payments to $249,360 beginning June 1, 1982.
“8. Change the maturity date of the loan to January 1, 1992.”

Mid-South then represented to Bartmess that it had obtained a commitment for a loan of $2.1 million at 11 percent per annum interest payable in annual installments of almost $250,000. This correspondence, bearing the date of August 12, 1980, eventually was delivered to Bartmess:

“This letter is to confirm the fact that Mid-South ... has earned a fee in the amount of $60,000 for arranging a loan in the amount of $2,100,000 for you on your 3,045 acres in Avoyelles Parish, Louisiana. This loan is at 11% interest with annual payments of $249,360 beginning January 1, 1982. This loan will be due and payable at the end of the tenth year at which time we will renegotiate the rate on this loan or take a free payoff.
“Please sign the original of this letter and return to Mid-South Mortgage Company and keep the copy for your files.... ”

On the strength of these representations, Bartmess executed the promissory note for $60,000, dated August 12, 1980, upon which this action was instituted. Mid-South did not inform Bartmess of the “modifications” or conditions connected with the Northwestern “commitment” or that the “loan” was to be an assumption of the Bayou mortgage, with the retention of the personal guarantee of Prevot. It is not shown that Mid-South attempted to obtain either Prevot’s assent to continuing his personal guarantee or Bayou’s assent to change the buy and sell agreement from a cash transaction to an assumption.

Under these circumstances, Mid-South did not provide Bartmess with a lender able, ready, and willing to lend on the borrower’s terms and there was a failure or absence of cause or consideration. We find no abuse of discretion by the trial court in its assessment of credibility issues when confronted with conflicting testimony.

For reasons detailed by the trial court and summarized here, and at appellant’s cost, judgment is

AFFIRMED.

      . The letter was addressed to Mid-South.
      Bayou was apparently negotiating with others during this time for the sale of other acreage. This record shows that Larry Matthew Gregory paid or obligated himself to pay Bayou over $5 million on September 11, 1980, for lands which included the 4,700 acres which Bayou had agreed to sell to Bartmess. Gregory bought “subject to” the Bayou-Bartmess buy and sell agreement and acquired the rights of Bayou under that agreement.
      Bartmess eventually obtained a loan from the Federal Land Bank and on October 28, 1980, Bartmess paid the final installment of $3.8 million on the Bayou contract. This money was paid to Gregory in a cash deed and Gregory deeded 4,709.03 acres to Bartmess.

      . This note was “immediately payable” at the “closing of Bayou Lafourche/Bartmess contract prior to 1/1/81.”
      When the note and the Mid-South letter were delivered to and were signed by Bartmess, is not important, in our opinion. Bartmess received this letter before the Federal Land Bank loan was closed on October 28, 1980.


author: JASPER E. JONES, Judge.

text:
    Chester Ray ELLIS, Plaintiff-Appellee, v. MFA MUTUAL INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 14935.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Writ Denied Nov. 5, 1982.

      Minard & Evans by Cameron C. Minard, Columbia, for plaintiff-appellee.
    Snellings, Breard, Sartor, Inabnett & Thrasher by Kent Breard, Monroe, for MFA Mut. Ins.
    Samuel T. Singer, Winnsboro, for Woods.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is an action for property damage to a truck, penalties and attorney’s fees. The plaintiff is Chester Ray Ellis, owner of the damaged truck. The defendants are Donald R. Woods, Frank B. Mayes and Countryside Casualty Company, Woods’ insurer.

Countryside appeals a judgment against it for $14,630.18, 12% penalties and attorney’s fees of $2,000. Plaintiff’s demands against Mayes and Woods were rejected.

On appeal Countryside sets out three assignments of error. Countryside contends the trial judge erred in: (1) finding the Ellis truck to be covered under its policy; (2) awarding excessive damages; and (3) finding its actions to be arbitrary and capricious and awarding penalties and attorney’s fees.

Ellis answered the appeal seeking an increase in the award of attorney’s fees and to have Woods held liable in solido with Countryside. Plaintiff originally sued Countryside’s insurance agent, Mayes, apparently on the theory that he could be liable for failing to provide coverage on the Ellis truck, but he assigns no error on appeal directed to the trial judge’s rejection of his demands against Mayes.

We amend and affirm.

THE FACTS

This suit occurred as a result of the activities of James Jesselink, plaintiff Ellis and defendant Woods.

In June 1979, Woods was engaged in the trucking business in Winnsboro, Louisiana. In connection with his business Woods owned two trucks, one of which he drove, and he employed Jesselink to drive the other. The truck Jesselink was employed to drive was insured for collision loss by Countryside.

At the time Jesselink went to work for Woods, he informed Woods that he desired to obtain his own truck and go into business for himself. To that end Jesselink had contacted Ellis about a 1973 International truck the latter had for sale.

On June 29, Jesselink was to haul a load of cotton from Mansfield to Winnsboro for Woods. However, on June 27 the truck Jesselink drove for Woods developed radiator trouble. It then occurred to Jesselink that the situation presented a good opportunity to test the International by using it to haul the cotton for Woods while his truck was under repair.

Woods agreed to Jesselink’s suggestion and Ellis agreed for his truck to be used under these circumstances, provided insurance had been obtained on his truck. Jes-selink spent much of the day on June 28 perfecting the arrangements. Late that afternoon he picked up the International from Ellis and assured him that insurance had been obtained.

Throughout the day of June 28, Woods worked to correct the radiator problem on his truck. The old radiator was removed and late that evening a used radiator was installed and the truck was tested that evening and the next day, June 29.

At approximately 4:00 a.m. on June 29, Jesselink left Winnsboro for Mansfield with plaintiff’s truck and Woods’ trailer to pick up the cotton. At the time of his departure he was unaware of the progress which had been made toward the repair of Woods’ truck. The time required to install a functional radiator in the truck was probably less than expected because when Woods arrived in Monroe with the defective radiator, he found that it could not be repaired and therefore he purchased a used radiator and returned to Winnsboro with it and proceeded to install it in his truck. Under these circumstances there was no delay caused by waiting to have the defective radiator repaired.

Upon arriving in Mansfield, Jesselink loaded the cotton upon the trailer and commenced his return to Winnsboro. On the return trip the truck and trailer overturned. Plaintiff’s truck was heavily damaged.

The plaintiff then brought this action. After a trial on the merits, the district judge found the truck to be covered under the Countryside policy as a temporary substitute automobile. He also found the insurer’s refusal to pay to have been arbitrary and capricious and rendered the judgment complained of.

ASSIGNMENT # 1

Through this assignment Countryside attacks the trial judge’s conclusion that the plaintiff’s truck was a temporary substitute automobile. Countryside makes two arguments in support of this contention; first, that the Woods’ truck was available for service on June 29 and, second, that Jessel-ink would have used Ellis’ truck for this haul regardless of the availability of Woods’ truck.

The policy contains the following definitions:

“(1) ‘Automobile’ means a self-propelled, land motor vehicle with at least four wheels, not operated on rails or crawler treads, but does not mean (a) a farm type tractor or any other vehicle, equipment, or machinery designed for use principally off the public roads, or (b) a vehicle while located for use as a residence or premises.
(4) ‘Described automobile’ means the vehicle described in the Declarations and includes a temporary substitute automobile as herein defined.
(12) ‘Temporary substitute automobile’ means an automobile not owned in whole or in part by the named insured or any resident of the same household, while temporarily used with permission of the owner as a temporary substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

The applicable coverage provisions reads as follows:

“1. Coverage F-Collision-The Company will pay for direct and accidental loss to the described automobile caused by collision between it and another object or by its upset, but only for the amount of each loss in excess of the deductible amount or percentage stated in the Declarations as applicable thereto. The deductible amount or percentage shall not apply to loss caused by a collision with another automobile insured by the Company.”

This coverage was subject to a deductible of $250.00.

The substance of Countryside’s first argument is that the Woods truck was actually available for service rather than withdrawn from normal use for one of the listed causes, and thus, the Ellis truck was not a temporary substitute automobile. The thrust of the second argument is that Jes-selink would have used the Ellis truck regardless of the availability of the Woods truck and that, therefore, there was no substitution and the Ellis truck is not a temporary substitute automobile.

The first argument is a challenge to the trial judge’s conclusion that Woods’ truck was out of service. This is a factual conclusion which we may not disturb absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The evidence is that though the used radiator was installed on the afternoon before the accident, the testing was not completed until the next day, sometime after Jesselink had left Winnsboro. Adequate testing is an important and integral part of the repair or servicing of automobiles. Thus, we find no error in the trial judge’s conclusion that the Woods’ truck was out of service.

Countryside’s second argument is that the Ellis truck was not a substitute for the Woods truck. This contention is not supported by the facts. Even though the substitution was not solely for the benefit of Woods, it was not suggested until after his truck experienced mechanical problems. The contention that the Ellis truck would have been used even if the Woods truck had been repaired and fully tested by the time Jesselink departed for Mansfield, is mere speculation.

Normand v. Hertz Corporation, 254 La. 1075, 229 So.2d 104 (1969), relied on by Countryside is inapposite. There the insured’s vehicle had not been removed from service or normal use. Instead his wife removed the vehicle from their residence in order to prevent her husband from using it.

Lincombe v. State Farm Mutual Ins. Co., 166 So.2d 920 (La.App.3d Cir. 1964), writ refused 246 La. 907, 168 So.2d 820 (1964), is not in conflict with our decision. There the court held only that when the policy requires that the owned auto be withdrawn from service for a specific listed reason in order for the vehicle substituted for it to be covered, the owned auto must be withdrawn from service for such cause in order for there to be coverage. Here the Woods truck was withdrawn for one of the reasons listed in the policy, namely, repair.

This assignment of error is without merit.

ASSIGNMENT # 2

Through this assignment of error Countryside contends that the award of $14,-630.18 for damages to the truck is excessive.

The trial judge based the award on a repair estimate made by Scott Truck and Tractor on Jan. 3, 1980. Gene Sisk, the employee of Scott who made the estimate, explained that the estimate included the cost of a new cab as no suitable used cab could be located at the time the estimate was prepared.

At trial Sisk was shown photographs of an apparently suitable used cab located by Countryside’s adjuster on Thursday before the trial which was held on May 11, 1981. Sisk testified the cab could be used at a cost of approximately $4,800 which would reduce the repair estimate by $6,780. Countryside contends that damages should have been assessed using the cost of the used cab.

In cases such as this where the cost of repair is less than the value of the vehicle the cost of repair is the correct measure of damages. Bailey v. Moore, 276 So.2d 708 (La.App. 1st Cir. 1973).

The trial judge’s award of damages may not be disturbed on appeal absent a clear abuse of his much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

While we find no abuse of discretion in the trial judge’s inclusion of the cost of a new cab in the award we do find clear abuse in other aspects.

That Sisk could not locate a used cab when preparing the Scott estimate shows there was no general availability of suitable used cabs. Further, there is no showing that the used cab located by Countryside is still available and there is no indication that Countryside took any steps to assure its availability, it is significant that Countryside located the used cab more than sixteen months after the Scott estimate was prepared. Therefore, an award based on the cost of a used cab would subject plaintiff’s ability to have his truck repaired to the vagaries of the used parts market. There was no error in the use of the cost of a new cab in fixing the award.

The award includes $911.05 for towing and six months storage. Storage fees should be awarded only for a reasonable time which normally should not exceed fourteen days. Heider v. Employers Mutual Liability Ins. Co. of Wis., 231 So.2d 438 (La.App. 4th Cir. 1970); Adam v. English, 21 So.2d 633 (La.App.Orl.1945). The award of storage for six months is excessive and the sum of $250 is adequate for towing and storage for a reasonable period.

ASSIGNMENT # 3

Through this assignment Countryside contends that the district judge erred in awarding penalties and attorney’s fees. We agree.

LSA-R.S. 22:658 provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount....”

The trial judge found Countryside’s refusal to pay arbitrary and capricious. In doing so he was clearly wrong.

Where there are serious factual issues as to liability and damages, penalties and attorney’s fees should not be awarded. Menard v. Andrew Jackson Apartments, Inc., 225 So.2d 249 (La.App. 4th Cir. 1969); Trico Services Corporation v. Houston General Insurance Co., 414 So.2d 1313 (La.App.2d Cir. 1982).

Here there were serious factual issues as to the status of Woods’ truck on the day of the accident and the cost of repair of plaintiff’s truck. The award of penalties and attorney’s fees in this case improperly punishes the insurer for seeking a resolution of those issues. Plaintiff’s request for an increase in attorney’s fees must be rejected as well.

We now address plaintiff’s contention that he should also have judgment against Woods.

The facts here establish that there was a deposit between Ellis, the depositor, and Woods, the depositary. The deposit was established by the consent of both Woods and Ellis and the latter’s delivery of the truck to Woods’ employee, Jesselink. LSA-C.C. arts. 2930; 2932.

Though Woods contends that Jesselink’s employment was terminated on June 28, we conclude that Jesselink was an employee of Woods on June 28 and the day of the accident. Jesselink had been employed by Woods for some time prior to the accident and he was engaged in hauling cotton for Woods at the time of the accident. He was not told of his alleged termination. Jessel-ink was also paid for his work on the day of the accident. All of these circumstances establish that Jesselink was Woods’ employee on June 29.

A depositary owes a duty to preserve the deposit and if it is damaged the depositary bears the burden of showing his freedom of negligence. Segura v. United States Aircraft Insurance Group, 246 So.2d 880 (La.App.3d Cir. 1971), writ denied 258 La. 704, 247 So.2d 584 (1971); Alex W. Rothschild & Co., Inc. v. Lynch, 157 La. 849, 103 So. 188 (1925); Gulf & S.I.R. Co. v. Sutter Motor Co., 126 So. 458 (La.App.Orl. 1930).

Here the plaintiff’s truck was damaged during its deposit with Woods. There is no showing that the damage was not occasioned by the neglect of Woods or his employee Jesselink for whom he is responsible. Rothschild; Gulf; supra. For these reasons the judgment should have been rendered against Woods as well as his insurer, and there should be judgment against Woods alone for that part of Ellis’ loss not covered by the policy.

For the foregoing reasons we amend the judgment of the district court by recasting the third, fourth and fifth paragraphs to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, CHESTER RAY ELLIS, and against the defendants, DONALD R. WOODS and COUNTRYSIDE CASUALTY COMPANY, in solido, in the amount of Thirteen Thousand Seven Hundred Nineteen and 13/100 ($13,-719.13) Dollars, and against defendant DONALD R. WOODS in the sum of Five Hundred and no/100 ($500.00) Dollars.
IT IS FURTHER ORDERED that the defendants DONALD R. WOODS and COUNTRYSIDE CASUALTY COMPANY, pay all costs in the district court.

IT IS FURTHER ORDERED that all other demands by plaintiff, CHESTER RAY ELLIS, are hereby rejected.

As AMENDED the judgment is AFFIRMED and the costs on appeal are taxed equally against Chester Ray Ellis, Donald R. Woods and Countryside Casualty Company.

      . Plaintiff originally sued MFA Mutual Insurance Company of which Countryside is a subsidiary. Countryside answered stating it had written the policy which covered the Woods’ truck that Jesselink was employed to drive.

      . Jesselink could not use Woods’ other truck because it was to be used for a trip to New Orleans.

      . During the morning of June 28, while Woods was removing the radiator from his truck to take it to Monroe to have it repaired, Jesselink discussed with Woods the use of the Ellis truck to tow Woods’ trailer. Upon obtaining Woods’ consent to haul the cotton with the Ellis truck Jesselink went to Columbia, Louisiana and secured Ellis’ consent to the use of his truck to haul Woods’ load of cotton conditioned upon insurance being obtained on the truck. He returned to Winnsboro that afternoon and talked to Mrs. Woods about obtaining insurance on the Ellis truck and was told it would be covered. He obtained the number of the policy that he was told provided the coverage and returned to Columbia and gave this information to Ellis who then delivered possession of the truck to Jesselink.

      . The insurer’s adjuster wrote a letter to Ellis’ attorney advising the Woods truck was ready for use at 10:00 a. m. on June 29 but with the exception of this information the exact time that the June 29th testing of the truck was completed is not clearly established in the record.

      . Jesselink wanted the opportunity to test the vehicle under loaded conditions and Ellis hoped the test would result in the sale of the truck.

      . The estimate is itemized as follows:
      Material: Labor: Total:
      1 cab $10,500.00 $1,080.00 $11,580.00
      1 Battery Box
      Cover 75.25 9.00 84.25

        Material: Labor: Total:
      1 Left Fuel Tank 179.00 54.00 233.00
      2 Fuel Tank Liners 18.30 18.30
      1 Mirror Assembly 36.60 18.00 54.60
      1 Left Front Tank Strap 28,20 9.00 37.20
      1 Turn Lamp 11.25 5.40 16.65
      1 Radio Antenna 5.45 18.00 23.45
      Refinish Truck Complete 500.00 500.00
      Wrecker Services and Storage 911.05
      Paint and Materials 150.00
      Material: Labor: Total:
      Freight on parts 325.00
      Tax 696.68
      GRAND TOTAL: $14,630.18

      . The judgment is also in error in that it assesses storage and towing costs against Countryside when they are not covered under its policy, and it fails to give Countryside credit for its deductible of $250. These errors will be corrected in our amended judgment.

      . Art. 2930—The deposit is perfected only by the delivery, real or fictitious, of the thing deposited.
      The fictitious delivery is sufficient, when the depositary is already possessed, in some other right, of the thing agreed to be left in deposit with him.

      . Art. 2932—The voluntary deposit takes place by mutual consent of the person making the deposit and the person receiving it.


author: HALL, Judge.

text:
    Dennis Doyle FERGUSON, Plaintiff-Appellant, v. Teresa Ann Dancy FERGUSON, Defendant-Appellee.
    No. 14936.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Joseph A. Cusimano, Jr., Farmerville, for plaintiff-appellant.
    Robert W. Levy, Ruston, for defendant-appellee.
    Before HALL, JASPER E. JONES, and NORRIS, JJ.
   HALL, Judge.

In this child custody matter, the district court rejected the father’s petition, ancillary to his petition for a final divorce, to change custody of the two-year-old son from the mother to the father. The father appealed. According great weight to the trial court’s decision and finding no abuse of discretion, we affirm.

The parties separated in February 1980, when Jason was four months old. In April, the father was granted a separation and, by agreement, the mother was granted custody of the child.

Prior to the separation the paternal grandmother kept the child during the day while both parents worked. This arrangement continued after the separation. By June, the child was spending more time with the grandmother and the father than with the mother.

Beginning in July the child was with the grandmother and father almost full-time, with the mother visiting the child occasionally. The mother worked long hours at her job. During this period of adjustment she moved several times. One place she rented was not air-conditioned which presented a problem with her keeping the child as he had a skin condition which was aggravated by the heat. The mother also had a foot operation during that time and was on crutches for several weeks.

This arrangement continued for almost a year until May 1981 when the petition for final divorce and change of custody was filed by the father. During that period, the father and child lived with his parents for a good part of the time and then lived in a trailer near the grandparents’ home. The father tended to the child in the morning before work, the grandmother kept the child at her house during the day, the father ate lunch with the child at the grandmother’s, and after work they ate supper at the grandmother’s. Father and child usually spent the night at the father’s trailer. The father and grandmother provided loving and attentive care to the young child.

Beginning in May 1981, the mother started having the child with her more often. She had a nice apartment, a good job, and, while working, left Jason at a suitable nursery. By the time of trial in November 1981, Jason was spending most days and nights with his mother. The evidence establishes that the mother is loving and attentive and the environment in which she and the child were living was entirely suitable.

At the conclusion of the trial and after a private conversation with Jason, the trial court determined that the better solution in this difficult case was to allow custody to remain with the mother, with the father to continue to have liberal visitation rights, and with the hope that the communication and cooperation of the parties had not been destroyed by the litigation. In the course of its oral reasons for judgment, the court noted Jason has a quick mind and no emotional problems. The court commented that it recognized “the biology of the situation” even though the maternal preference rule was no longer applicable.

On appeal, the father urges that the trial court erred in applying the maternal preference rule, seizing on the trial court’s comment concerning biology. The father further urges that it would be in the best interest of the child for him to have custody, emphasizing that the child was with him during most of the time since the parties separated, this stable environment should be continued, and the paternal grandparents are available to assist in caring for Jason and can help him provide a stable family life in a church-going environment.

On the other side, the mother emphasizes her nurturing relationship with the small child since his birth, her present custody, legal and actual, of the child, the good environment in which they were living at the time of trial, and the lack of substantial reason to change custody.

This case presented a difficult best-interest determination for the trial court. There was no error on the part of the trial court in considering the mother-child relationship as one of the factors in making the best-interest decision. Upon appellate review, we accord great weight to the trial court’s determination and find no clear abuse of discretion; the court’s discretion was soundly exercised. Legal custody in the mother since the parties’ separation, with the father and paternal grandparents providing care, support and assistance as needed under circumstances as they have existed, seems to have worked to the best interest of this child. It is not convincingly demonstrated that a change in legal custody would be in the best interest of the child.

In affirming the trial court’s decision, we take note of the fact that by the time the judgment on appeal becomes final, the mother will have had actual custody for about a year. At this point in time, stability of environment is an additional factor favoring continued custody in the mother.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    SUCCESSION OF Horace Garland BYRD. and SUCCESSION OF Gira Avis Hays BYRD.
    Nos. 14944, 14945.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Writ Denied Nov. 5, 1982.
    Billye L. Adams, Monroe, for defendant-in-rule and appellant Donald Ray Byrd.
    John Michael Ruddick, Haynesville, for plaintiff-in-rule and appellee Walter Gene Hays.
    Beforé PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Defendant-in-rule, Donald Joe Byrd, appeals a judgment probating the statutory wills of Horace and Gira Byrd. We affirm.

On December 31, 1974, Horace and Gira Byrd executed identical statutory wills. Under the terms of these reciprocal instruments, all property of the first-deceased spouse was bequeathed to the survivor. Upon the death of the last-surviving spouse, the naked ownership of the testator’s property was bequeathed to a nephew, Walter Gene Hays, with a lifelong usufruct on the property granted to the couple’s only child and forced heir, Donald Joe Byrd.

Horace Byrd died on June 16, 1977. Upon the petition of his widow and child alleging that he died intestate, they were sent into possession of his estate. After the death of Gira Byrd on May 19,1979, Donald Joe Byrd was sent into possession of her estate pursuant to a petition alleging his mother died intestate. On May 14, 1981, Walter Gene Hays sought to probate the wills executed by the decedents in 1974.

At the trial on the rule to show cause why the wills should not be probated, it was stipulated that the wills were signed by the decedents and the sole issue presented was whether the wills in question were executed in conformity with La.R.S. 9:2442.

The trial court found that the wills were in proper form and that the instruments had been executed in accordance with the requirements of the statute.

Appellant’s primary contention on appeal is that both wills are null because they were not properly signed and dated pursuant to La.R.S. 9:2442. Each testator signed beneath the dispositive portion of the will, but neither document carries the testator’s signature after the attestation clause. Only the attestation clause is dated. Appellant contends that for a statutory will to be valid, there must be a date and a written acknowledgment above the signature of the testator that he has signified to the notary and two witnesses that the instrument is his last will and testament.

Insofar as appellant’s contention that the wills are invalid because the date appears only in the attestation clause, this issue has been resolved in the Succ. of Bel, 377 So.2d 1380 (La.App. 4th Cir. 1980). The court there held it is sufficient that the date appear only in the attestation clause of a statutory will.

Appellant concedes that under the holding in Succession of Porche, 288 So.2d 27 (La.1973), it is no longer necessary that the testator sign below the attestation clause provided he has signed at the end of the dispositive portions of the will. However, this concession is based on the premise that there is a specific recitation in the disposi-tive portion of the will above the signature of the testator that he has appeared before the notary and witnesses and signified to them that he is making his last will and testament. Appellant points out that in Porche the dispositive portions of the will contained such a declaration and contends this factor distinguishes the instant case from the holding in Porche.

The validity of a will should be maintained if possible and the courts should not require strict and exacting compliance in form if to do so would sacrifice reasonableness to hypertechnicality. Succ. of Morgan, 257 La. 380, 242 So.2d 551 (1971); Succ. of Dugas, 400 So.2d 333 (La.App. 4th Cir. 1981), writ denied 404 So.2d 1257.

We do not construe Porche to require the declaration required by the statute to be in writing above the signature of testator as contended by appellant. La.R.S. 9:2442 as amended in 1974 (the statute in effect when the subject wills were executed) simply required the testator to signi fy in the presence of the notary and two witnesses that the instrument was his last will and that he sign the instrument at the end and on each page in their presence. It further provided that “the foregoing facts shall be evidenced by a declaration signed by the notary and both witnesses in the presence of the testator and each other.” (Emphasis added) The statute did not require this recitation above the signature of the testator as contended by appellant. Therefore, we find the decision of Porche is applicable to the circumstances presented here.

On trial of the rule in the instant case, the notary and one subscribing witness testified that each testator acknowledged in the presence of the notary and both witnesses that the document was his or her last will and testament and then signed it. The evidence also establishes that the notary and both witnesses signed the dated attestation clause in the presence of each other and the testator. Since this procedure fully complies with the statutory formalities, we find that both wills are valid.

Lastly, appellant contends plaintiff-in-rule failed to carry the burden of proof on trial of the rule to show cause why the wills should not be probated. He contends that since the notary and only one of the subscribing witnesses testified for plaintiff-in-rule, the failure to call the second subscribing witness raised a rebuttable presumption that her testimony would have been unfavorable to plaintiff-in-rule’s position.

As noted before, the testimony of the notary and one of the subscribing witnesses establishes that both wills were signed by the testator, the notary, and both witnesses within the presence of each other and in conformity with law. The fact that one of the witnesses did not testify at trial is inconsequential because La.C.C.P. Art. 2887 requires only that a statutory will be proved by the testimony of the notary and one subscribing witness. Furthermore, the trial court took judicial notice of the fact that the other subscribing witness was equally available to both parties. The presumption that the testimony of an uncalled witness would have been unfavorable does not apply when the witness is equally available to both parties. Hemphill v. Strain, 371 So.2d 1179 (La.App. 1st Cir. 1979), writ denied 373 So.2d 510.

For the reasons assigned, the judgment of the trial court is affirmed with all costs assessed to appellant.

      . La.R.S. 9:2442. Statutory will; form
      The statutory will shall be in writing (whether typewritten, printed, mimeographed, or written in any other manner), and shall be executed in the presence of a notary and two competent witnesses not otherwise disqualified under Articles 1591 and 1592 of the Civil Code, shall be dated, and shall be made in the following manner:
      (1) In the presence of the notary and both witnesses the testator shall signify to them that the instrument is his will and shall sign his name at the end of the will and on each other separate sheet of the instrument. If the testator is not able to sign his name because of some physical infirmity, he must so declare or signify to the notary in the presence of the witnesses as well as of the cause that hinders him from signing, and shall then affix his mark in the places where his signature is required. Express mention of the testator’s declaration or signification and of the cause that hinders him from signing his name must be made in the act.
      (2) The foregoing facts shall be evidence by a declaration signed by the notary and both witnesses in the presence of the testator and of each other in the following form or a form substantially similar thereto:
      “Signed on each page (or if not signed by the testator, the statement of his declaration or signification that he is not able to sign his name and of the physical cause that hinders him from signing), and declared (or signified) by testator above named, in our presence to be his last will and testament, and in the presence of testator and each other we have hereunto subscribed our names on this_ day of_, 19_”


text:
    Chetta Tuminello FERLITO, Plaintiff-Appellant, v. Russell E. CEGOLA, Defendant-Appellee.
    No. 14946.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Writ Denied Nov. 5, 1982.

      Bodenheimer, Jones, Klotz &'Simmons by Frank H. Thaxton, III, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for Russell E. Cecola defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Chetta Tuminello Ferlito, appeals from a judgment granting defendant’s motion for dismissal in an action relating to the performance of dental services. We affirm.

On January 7, 1981, plaintiff filed suit seeking damages for injuries allegedly sustained as a result of dental treatment she received from defendant, Dr. Russell E. Ce-cola. In her petition, plaintiff alleged that she paid defendant $4,000 to provide crowns for her teeth so as to make them uniform in shape, color, and quality. Plaintiff further alleged that during a seven-month period of treatment, defendant was unsuccessful in making the crowned teeth resemble the shape and color of her original teeth. Plaintiff asserted that she was forced to employ another dentist to make the necessary adjustments to her crowned teeth so that they now resemble the shape and color of her original teeth.

Plaintiff also alleged that during the time defendant treated her, she was subjected to verbal abuse and on one occasion was pushed against a wall by defendant.

At trial, plaintiff testified that she went to defendant for treatment of two upper front teeth which were discolored and crooked. After consulting with defendant, it was decided that most of her teeth were to be crowned. Plaintiff further testified that defendant promised “he would do anything he could to please me” and that “he was going to make the teeth real pretty.”

Plaintiff stated that the first set of permanent crowns she was fitted with were not properly shaped or colored. In an attempt to satisfy plaintiff, defendant removed six crowns from plaintiff’s upper front teeth and replaced them with another set. Plaintiff testified that the replacements were also unsatisfactor because they were misaligned and were not the size, shape, or color of her original teeth. Over the next several months defendant unsuccessfully attempted to satisfy plaintiff by making requested adjustments to the crowns on her front teeth.

Plaintiff also testified that over the course of treatment, defendant often responded to her complaints by saying that she was in need of a psychiatrist. These episodes occurred in front of defendant’s nurse and the lab technician who prepared plaintiff’s crowns. On another occasion, after plaintiff had submitted a list of her complaints to the doctor, defendant was overheard uttering a profane remark directed at plaintiff. On that occasion, defendant was unaware of plaintiff’s presence because she had followed defendant’s nurse into the office without being invited.

Plaintiff also testified that on one visit to the doctor’s office, defendant pushed her into a wall.

Finally, plaintiff testified that another dentist, Dr. Mclnnis, made the necessary adjustments to the crowns on plaintiff’s six front teeth so that they now resemble the original teeth in shape, size, and color. Other witnesses testified to the improvement in plaintiff’s appearance after the work performed by Dr. Mclnnis.

The deposition of Dr. Mclnnis was admitted into evidence at trial. He testified that plaintiff was not satisfied with the first set of crowns he fitted on her front teeth so a second set was prepared. Dr. Mclnnis stated that the crowns he fitted on plaintiff’s teeth were made by the same dental laboratory which defendant employed and were of the same color as the crowns used by defendant. He further testified that any adjustments he made to plaintiff’s teeth were very minor in nature. In his opinion, there was nothing defective about the work performed by defendant.

At the close of plaintiff’s evidence, defendant moved for dismissal under La. C.C.P. Art. 1810(B). The trial court granted the motion, finding plaintiff failed in her burden of proving malpractice under La. R.S. 9:2794 since she did not show that defendant lacked the knowledge, skill, or degree of care ordinarily exercised by dentists licensed in this state.

On appeal, plaintiff does not contest the finding of the trial court that she failed to prove malpractice under La. R.S. 9:2794. However, plaintiff contends the trial court erred in granting defendant’s motion for dismissal because the evidence shows the existence of a contractual relationship between plaintiff and defendant, thus her action is for breach of contract, not malpractice. Plaintiff further contends that since the undisputed evidence shows verbal abuse and battery committed by defendant upon the person of plaintiff, she has proven a prima facie case of tort separate from any malpractice action.

Louisiana Code of Civil Procedure Article 1810(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In considering a motion under La. C.C.P. Art. 1810(B), the trial court must weigh and evaluate all the evidence presented and must grant a dismissal if plaintiff has not carried the burden of proof by a preponderance of the evidence.

Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La. App. 4th Cir. 1980); Bryan v. Varnado, 394 So.2d 1321 (La. App. 1st Cir. 1981); Standard Machine & Equipment Co. v. Southern Pacific Transportation Co., 410 So.2d 842 (La. App. 3d Cir. 1982).

Applying this standard to the present case, we hold that the trial court did not err in granting defendant’s motion for dismissal.

In support of her contention that a contractual relationship existed between the parties, plaintiff cites her testimony whereby she claims defendant promised to do anything to please her and make her teeth “pretty.” Plaintiff contends that these statements were a guarantee of results by defendant. Plaintiff argues that since she has proven the failure of defendant to perform the dental work to her satisfaction, it was error for the trial court to categorize this suit as a malpractice action and grant the motion to dismiss.

When a physician undertakes the treatment of a patient, he does not guarantee a cure and the law does not impose an implied undertaking to cure. If a patient is negligently injured by his physician, an action against that physician lies in tort (malpractice), unless the physician has contracted with the patient for a specific result. Sciacca v. Polizzi, 403 So.2d 728 (La. 1981). In the instant case, a purported promise by defendant to “please” plaintiff and make her teeth “pretty” is not such a guarantee of result as to establish a contract between the parties. Since plaintiff has failed to prove the existence of a contract, her action lies in tort. It is undisputed that plaintiff failed to prove defendant’s malpractice under La. R.S. 9:2794.

Although plaintiff does not advance any particular theory of recovery for the verbal abuses purportedly committed by defendant, Louisiana law has allowed recovery for defamation and intentional infliction of emotional distress.

To maintain an action in defamation, the following elements must be shown: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5)resulting injury. Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La. 1980).

First, the instances where defendant purportedly told plaintiff she was in need of a psychiatrist are not sufficient to constitute defamation. The words are not defamatory per se, nor has plaintiff proven malicious intent on the part of defendant or any resulting injury. Second, the profane remark allegedly uttered by defendant does not constitute defamation. Profane language, although disgusting and uncouth, is not defamatory per se. Harris v. Levy, 353 So.2d 1065 (La. App. 2d Cir. 1977). Furthermore, plaintiff has not shown malice on the part of defendant or any resulting injury from the remark.

Plaintiff has also failed to prove that the remarks allegedly made by defendant constitute an intentional infliction of emotional distress. In Steadman v. South Central Bell Telephone Co., 362 So.2d 1144 (La. App. 2d Cir. 1978), this court made the following observation:

The general rule of law concerning damages for mental distress due to intentional torts is that the defendant must either have actively desired to bring about the mental anguish or realized to a virtual certainty that it would occur. See 23 Louisiana Law Review 281 at 292; Prosser, Law of Torts (1971), 4th Ed., § 12, p. 49. Recovery for mental anguish caused by intentional torts has generally been limited to instances of outrageous conduct. Malone, Studies in Louisiana Tort Law (1970), p. 39; Nickerson v. Hodges, 146 La. 735, 84 So. 37 (1920).

In the instant case, a review of the evidence does not disclose the requisite intent on the part of defendant or the type of outrageous conduct necessary to establish this intentional tort.

Concerning plaintiff’s claim that defendant has committed a battery upon her person, the record shows that any such incident was minor in nature and no damages have been suffered by plaintiff. Therefore, plaintiff would not be entitled to any recovery as a matter of law.

In summary, our review of the record convinces us that the trial court properly granted defendant’s motion to dismiss under La. C.C.P. Art. 1810(B). Accordingly, the judgment of the district court rendering a judgment of dismissal in favor of defendant is affirmed. All costs of this appeal are assessed to plaintiff.


author: SEXTON, Judge.

text:
    LOUISIANA BANK AND TRUST COMPANY, Plaintiff-Appellee, v. MURCAMBYR, INC., Charles G. Byrom, Dominic I. Cordaro, Jack L. Campbell and Billy E. Murphy, Defendants-Appellants.
    No. 14947.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      Evans, Feist, Auer & Thompson by Robert I. Thompson, III, Shreveport, for plaintiff-appellee.
    Nelson, Hammons & Johnson by Walter D. White, Shreveport, for defendant-appellant, Dominie I. Cordaro.
    Simon, Fitzgerald, Cooke & Reed by Chatham H. Reed, Shreveport, for defendant-appellant, Jack L. Campbell.
    Before PRICE, FRED W. JONES, Jr., and SEXTON, JJ.
   SEXTON, Judge.

In this suit on several promissory notes and accompanying continuing guaranties, the defendants appeal a default judgment in favor of the plaintiff. Therein the trial court held: service of process was sufficient; defendant sureties had no right to collaterally attack a default judgment rendered against the corporate principal where it was found that the sureties had bound themselves in solido; that plaintiff had sufficiently proved its claim as to amounts owed by defendants; and that the judgment against defendants is in proper form since it does, on its face, specify an ascertainable amount. We affirm the judgment of the trial court.

Billy Murphy, Jack L. Campbell, and Charles Byrom formed Murcambyr, Inc., for the purpose of operating a restaurant in Shreveport, Louisiana. In order to establish the business and begin operation, defendant corporation borrowed approximately $350,000 from plaintiff, Louisiana Bank and Trust Company. Defendants Murphy, Campbell, and Byrom executed continuing guaranties in favor of plaintiff in the amount of $350,000 to secure the loan. On April 29,1980, defendant, Dominic Cordaro, purchased the interests of Murphy and By-rom, and executed a Continuing Guaranty to the plaintiff in the amount of $310,000.

Defendants were unable to fulfill their obligation to repay the loan and in August, 1981, plaintiff filed suit against defendant corporation, the continuing guarantors, and the original signatories of the notes. Defendant corporation was served on August 12, 1981, by personal service on John Ham-mons. It appears from the record that pri- or to August 20, 1980, John Hammons was listed as agent for service of process for the defendant corporation. Upon being served in an unrelated matter in August, 1980, Hammons resigned as agent with the Secretary of State, leaving Dominic Cordaro as the agent for service of process for the defendant corporation. In resigning, Ham-mons did not fully comply with LSA-R.S. 12:104 C which provides in part that:

“A registered agent may resign but such resignation shall be effective only when written notice thereof has been given to the corporation, the Secretary of State, and the recorder of mortgages of the parish in which the registered office is located.” (Emphasis added).

Hammons gave proper notice to the Secretary of State but failed to give written notice to the Recorder of Mortgages in Cad-do Parish where his office was located. Thus, in August of 1981, when seeking to find the registered agent for service of process plaintiff found Hammons’ name still enrolled with the Recorder of Mortgages as agent for the defendant corporation. Mr. Cordaro, who also was listed as agent for service of process, was served by domiciliary service in his individual capacity as surety.

On September 3, 1981, a default judgment was confirmed against the defendant corporation. The suit was then pursued against the signers of the notes and Continuing Guaranties in their individual capacities. Judgment in favor of the plaintiff was signed and filed December 2, 1981.

The first issue raised on appeal is the sufficiency of service of process, both upon Hammons and upon Cordaro. The resolution of this issue is determinative of the validity of the default judgment against defendant corporation.

We first note that domiciliary service cannot be made upon a corporation. Rue v. Messmer, 332 So.2d 591 (La. App. 4th Cir. 1976). Further, domiciliary service upon the corporation’s registered agent is insufficient. Gamble v. Carter, 378 So.2d 185 (La. App. 1st Cir. 1979). However, we find that service upon John Hammons was valid and sufficient due to the failure to comply with the very specific and mandatory provisions of LSA-R.S. 12:104 C. Clearly, the purpose of notifying the Recorder of Mortgages of the change or resignation of a corporation’s agent for service of process is to allow creditors and others interested in filing suit against a corporation to obtain expeditious and accurate information necessary for service.

Louisianá has traditionally given great deference to faith placed in the public records. See McDuffie v. Walker, 125 La. 152, 51 So. 100 (1910); Buras Ice Factory, Inc. v. Department of Highways, 235 La. 158, 103 So.2d 74 (1957); and Prevot v. Courtney, 129 So.2d 1 (1961). At the time Hammons was served he was still the registered agent of the defendant corporation due to his failure to comply with the provisions of LSA-R.S. 12:104 C by not notifying the Recorder of Mortgages. Therefore service of process on this registered agent is valid, even though the Secretary of State had been notified of his resignation. Thus, the judgment against the defendant corporation is valid.

Having found a valid judgment has been entered against the defendant corporation we pretermit the issue of whether the individual defendants’ relationship to the defendant corporation is one of solidarity, as the existence of the valid judgment moots the individual defendants’ argument that they are not solidarily liable and that therefore a valid judgment against the principal debtor is necessary to effect their liability.

The defendants next assert that plaintiff failed to prove that the defendant corporation owed a debt of $4,850.61 to Kilpatrick Life Insurance Company, which plaintiff claims it paid on behalf of the defendant corporation.

The plaintiff presented evidence to support its contention that the defendant corporation was delinquent in making loan and interest payments to Kilpatrick Life Insurance Company which held a first mortgage on the restaurant property. Plaintiff, who held the second mortgage, paid $4,061 in order to keep the first mortgage current, and thus protect its own interests. With regard to the payments made by plaintiff to Kilpatrick, the following testimony was given by Mr. Ray Oden, Chairman of the Board of Louisiana Bank and Trust, the plaintiff bank:

Q. Mr. Oden, I believe Louisiana Bank and Trust had a second mortgage on the property in question; is that correct?
A. Yes, sir we do.
Q. Who has the first mortgage on the property?
A. Kilpatrick Life Insurance Company.
Q. Did you authorize on July 3 of this year a payment of $4,040 on Kilpa-trick Life Insurance Company to bring the first mortgage current?
A. Yes, sir.

Plaintiff further introduced a certified copy of its second mortgage which contained a provision [Clause B(3)] allowing for payment by the second mortgagee to the first mortgagee of the note if the first mortgage was in arrears. Plaintiff also introduced evidence including ledger sheets which corroborated its payment of the ar-rearages. That Kilpatrick was the first mortgagee or that the debt was owed by the defendant corporation was never disputed. Instead defendant argues that plaintiff failed to bear its burden of proving the existence of the debt because he did not produce the note upon which the debt was owed. Considering the evidence presented, this court, as did the trial court, finds that plaintiff made a prima facie showing that it had paid a portion of the defendant corporation’s indebtedness as it was privileged to do under Clause B(3) of the collateral mortgage between plaintiff and defendant. Therefore plaintiff is entitled to judgment in the amount of $4,850.61, which is the amount of defendants’ indebtedness paid by plaintiff plus interest. Actual production of the note that forms the basis for defendants’ indebtedness to Kilpatrick was not necessary.

Defendants’ final contention is that the judgment signed by the trial court was improper in that it is so vague that the exact amount owed cannot be determined by the wording of the judgment. Alternatively they contend that the judgment only provides for judicial interest from the date of judicial demand. This contention is obviously made only with respect to the judgment for the sum of $97,457.98, as the interest on the other sum in the judgment is specific. However, with respect to the larger amount, the judgment is for the $97,-457.68 “plus interest and attorneys fees ... which is presently due and owing thereon, from the date of Judicial Demand until paid ...” This is the same language which plaintiff used in the prayer to the original petition.

Arguably, considering the changes effected to LSA-C.C. Art. 2924 in the judicial rate of interest by Act 574 of 1981, one cannot determine whether the interest is legal or conventional and whether it is from the date payments were past due or from the date of judicial demand. Also, of course, the amount of attorneys fees is not specifically set out in the judgment.

The two notes sued on each called for 25% attorneys fees on the unpaid balance and 10% per annum on that balance as interest from date until paid. In computing the amount due, the representative of Louisiana Bank testified that their records showed a principal balance of $94,428.12 due, and the additional sum represented interest from the last payment until the date of the suit, the total of which was $97,457.98. It thus may appear that the judgment is for the $97,457.98 plus 10% interest thereon from judicial demand until paid together with 25% attorneys fees on the amount to be collected. However, interest may not be collected on interest. LSA-C.C. Art. 1939.

In order to preclude any arguable problems we will recast that part of the judgment complained of to be certain that there is no ambiguity. We therefore affirm the judgment of the trial court but amend and recast only that portion of the judgment with respect to the sum of $97,457.98 to render judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Louisiana Bank and Trust Company, and against the defendant, Mureambyr, Inc., in the sum of Ninety-Seven Thousand Four Hundred Fifty-Seven and 98/100 dollars, ($97,457.98), plus 10% interest on Ninety-Four Thousand Four Hundred Twenty-Eight and 12/100 dollars, ($94,-428.12), from the date of judicial demand together with 25% attorneys fees on the amount to be collected and for all costs of these proceedings.

As amended and recast the judgment is affirmed.

      . This act created the unusual situation of making legal interest in this case higher than conventional interest. Under such a circumstance it is well settled that the conventional rate prevails. Meyer v. Consolidated Marketing, Inc., 376 So.2d 1278 (La. App. 2d Cir. 1979).


text:
    RICHARDSON’S PLUMBING AND AIR CONDITIONING, INC., Plaintiff-Appellee, v. Charles J. HARRIS, Defendant-Appellant.
    No. 14948.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.
    Charles J. Harris, in pro. per.
    Bodenheimer, Jones, Klotz & Simmons by William E. Byram, Shreveport, for plaintiff-appellee. h
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

In proper person, the defendant Harris appeals a judgment against him for plumbing work done on his residence which was then occupied by a tenant. The trial court also found that the work was done on an open account and assessed attorney fees. LRS 9:2781.

We find no abuse of the trial court’s discretion in resolving issues of credibility where the evidence conflicted. We view the evidence most favorably toward upholding the judgment, but we must find, however, that the evidence does not prove that the contract for the work, express or implied, was an “open account”. The contract was not open ended either in the sense that it was not settled or that it was or had been a continuing account in which the parties expected to deal further in the future. Monlezun v. Fontenot, 379 So.2d 43, 45 (La. App. 3d Cir. 1979).

Accordingly, we amend the judgment to delete the award of statutory attorney fees and otherwise affirm.

Before this action was instituted, defendant and his wife resided outside Louisiana. Before May 1980, when the work in question became necessary, plaintiff had done plumbing work on the residence, thinking that the tenant was the owner. This earlier work was paid for by the tenant who deducted the cost of the work from the rent.

In May-June 1980, when plaintiff was doing work on a leaking shower, plaintiff learned the residence was owned by Mr. Harris. Plaintiff declined to do further repair without some authorization from the owner. Either from Washington, D.C. or Kentucky where she and her husband were then residing, Mrs. Harris telephoned plaintiff and discussed work that had been done and the work which remained to be done by plaintiff. Plaintiff outlined and estimated the total cost of all work would be $850—$1,-000. Plaintiff also testified that Mrs. Harris ratified and authorized the work and instructed plaintiff to send a bill to the Harris’ address in Winchester, Kentucky. The greater part of the work was completed after Mrs. Harris telephoned plaintiff. Mr. and Mrs. Harris moved to Shreveport before the action was filed and after some demands were made.

Before and after the action was filed, Harris denied that his wife authorized plaintiff to do the work and denied that the work was necessary. An employee of plaintiff who made the inspection and performed the work testified as to the damage that had been caused by the leaking shower and as to the work necessary to correct the problem. Another employee testified about the telephone call or calls from Mrs. Harris. Under these circumstances, it was not error for the trial court to conclude that the work was necessary and was authorized by Mrs. Harris and inured to the benefit of Mr. Harris. The testimony of plaintiffs employees in these respects was uncontradict-ed except by the assertions of Mr. Harris. Neither Mrs. Harris nor a plumber was called to testify by defendant and it was not improper for the trial court to resolve these credibility issues against defendant.

Defendant’s other assignments of error relate to procedural and evidentiary matters. Plaintiff responded to defendant’s subpoena duces tecum “with all of the documents pertaining to [the Harris] account * * * the entire contents of [plaintiff’s] file ...” and offered to allow Mr. Harris to “look at those ... prior to trial.” The trial court suggested “about a 15 minute recess ... and if that’s not enough time, let me know ...” After some unspecified period of recess, defendant responded affirmatively to the court’s question, “Are you ready to proceed?” Therefore, the defendant’s contention of error regarding plaintiff’s response to the subpoena and the “15 minute delay ... before trial” are found without merit. Similarly, defendant’s contention that plaintiff entered into evidence some documents that were not “properly identified” and that the trial court ruled without argument show no abuse of discretion.

In the earlier work on the residence, plaintiff did not deal with the tenant as agent of the owner but as if the tenant were the owner. These dealings may not be used to establish an expected continuity of work between plaintiff and defendant. This record supports only the conclusion that the work done and to be done was necessary and was generally outlined by plaintiff within a given price range, that this work was authorized by defendant and was completed. Monlezun, supra. See also Richards v. Gulfco Electronics Corp., 360 So.2d 609 (La. App. 4th Cir. 1978); Jenkins v. Dicon, Inc., 387 So.2d 649 (La. App. 1st Cir. 1980).

The judgment is amended to delete the award of attorney fees, and, as amended, and at appellant’s cost, is affirmed.

AMENDED AND AFFIRMED.


text:
    SALLING WIPING CLOTH CO., INC., Plaintiff-Appellant, v. SEWELL, INC., et al., Defendants-Appellees.
    No. 14950.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.

      Egan, Cook & Titone by Reuben W. Egan, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for defendants-appellees.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

In this suit to enforce the acceleration provision of a lease taken by the defendant, Sewell, Inc., the performance of which was guaranteed personally by the defendant Sarrah Y. Loggins, the defendants filed a peremptory exception asserting compromise. This exception was referred to the merits. Subsequent to trial that exception was sustained and the plaintiff now appeals. The judgment of the trial court is affirmed for the reasons set out hereinafter.

On or about July 1, 1980, defendant, Se-well, Inc., leased from plaintiff, Sailing Wiping Cloth, Inc., certain premises in Bossier Parish for a period of five years. The amount of payment due monthly was specified in the contract. Defendant-lessee’s performance on the terms of the lease was guaranteed by Sarrah Y. Loggins, mother of the corporation’s sole stockholder, Jeffrey Haughton.

On the same date as the lease, Sailing sold to Sewell all of the accounts receivable, processing equipment, a truck and stock in trade in a $30,000 credit sale. A note and chattel mortgage for the purchase price was taken. Sarrah Y. Loggins was endorser of the note.

Payments were made on July 1, 1980, through February 13, 1981. Defendant then became delinquent with its rental payments, causing plaintiff to issue a written notice that defendant should pay the rent due. No payments were forthcoming and plaintiff instituted this action on July 13, 1981, to accelerate payments as provided for in the lease. Plaintiff alleges that the unpaid rent is $33,450. Plaintiff also claims interest of 8% per annum from May 3,1981, and attorney fees as called for in the lease.

On May 2, 1981, prior to suit, as a result of defendant Sewell’s inability to pay rentals and the resulting threat of court action from the plaintiff, a “Settlement Agreement” was entered into. By the terms of this agreement Sewell’s assets were to be transferred to a third party, Johnny Byrd, and all proceeds of that sale plus other sums were to be paid to the plaintiff in exchange for his cancellation of the lease between defendant and itself.

Also under the terms of the Settlement Agreement, upon full payment of $21,000 by Sewell to Sailing, Sailing was to return to Sewell the July 1, 1980, promissory note in the amount of $30,000 marked paid in full and cancel the chattel mortgage of the same date which secured the note. Further, upon Sewell’s payment of $1,750 for past due rent and current rent through May 1981, Sailing was to cancel the July 1, 1980, lease to Sewell.

The terms of payment of the $21,000 were: $5,000 upon execution of the Settlement Agreement, and $16,000 upon final payment of the purchase price of Sewell’s assets by Byrd (which contract of sale was recognized in the Settlement Agreement). Additionally, Sewell was to transfer to Sailing its open accounts, pay its outstanding debts, and convey to Sailing a 1977 Chevrolet van.

Pursuant to the terms of the Settlement Agreement, $5,000 was timely paid on May 3, 1981. The cash sale of Sewell’s assets amounted to $13,327.40. This amount was immediately transferred to the plaintiff upon receipt by defendant. Left outstanding was payment of the balance of the $16,000 amounting to $2,672.60, plus payment of the outstanding debts incurred by Sewell, which the Settlement Agreement called for to be paid before June 1, 1981.

On June 1, 1981, Mrs. Loggins presented plaintiffs attorney with a personal check in the amount of $5,911.19, representing the balance of the $16,000 and other sums called for. Mrs. Loggins requested that the check not be presented for payment until 3:00 p.m. that day, since she then had insufficient funds in her account to cover the check. However by 3:00 p.m. she assured the plaintiff’s attorney that sufficient funds would be transferred. Prior to 3:00 p.m. on June 1, 1981, the plaintiff’s attorney informed Mrs. Loggins that the check she presented was unacceptable due to an additional clause contained on the rear of the check. This clause stated:

“This check constitutes payment in full to Sailing Wiping Cloth Co. Inc. for Sewell, Inc. for all lease payments, accounts payable, note payments and hereby releases Sewell and Thomas Jeffrey HAUGHTON and Sarrah Y. Loggins and their successors and assigns from any and all claims for detriment, injuries and damages of whatsoever nature and character, which heretofore sustained or may hereafter sustain and fully relieves the aforesaid of any obligation whatsoever in connection herewith.”

No money was transferred by Mrs. Log-gins to cover the check, but the check was never presented for payment. Her banker testified that had the check been presented it would have been paid by the bank.

Plaintiff did not present the check because of the above clause, believing it varied the terms of the settlement agreement, also because of concern over unknown outstanding debts of Sewell. Thereafter this suit was filed asserting the original lease, to which defendants filed the previously mentioned exception.

The trial court found that the terms of the settlement or compromise agreement had been substantially complied with and, having referred the peremptory exception to the merits, sustained that exception after the trial on the merits.

The defense of compromise may properly be raised by the peremptory exception of res judicata. Bielkiewicz v. Rudisill, 201 So.2d 136 (La. App. 3d Cir. 1967) and Ditch v. Finkelstein, 399 So.2d 1216 (La. App. 1st Cir. 1981). We note that the exception in question here, though not styled as an exception of res judicata, is styled as a peremptory exception and adequately pleads the issue of compromise. Any defect in the label is of no significance. LSA-C. C.P. Art. 854 and Tschirge v. Land-O-Lakes, 98 So.2d 270 (La. App. 1st Cir. 1957).

LSA-C.C. Art. 3071 provides the definition of “compromise” in Louisiana. A compromise is an agreement made for the purpose of preventing or ending a lawsuit in which two or more persons “adjust their differences by mutual consent.” As LSA-C.C. Art. 3071 further provides, the contract of compromise is preferred by the parties to the hope of gaining, balanced by the danger of losing. The contract of compromise must be reduced to writing or recited in open court, and of course a contract of compromise, like any other conventional obligation under the Civil Code, requires consent and capacity. Other crucial codal provisions stipulate that compromises “regulate only the differences which appear clearly to be comprehended in them,” and that compromises have the legal efficacy of judgments, possessing as they do, “a force equal to the authority of things adjudged.”

Given the Code’s abstract and functional definition of “compromise” our task is to determine whether the legal requirements of a valid compromise have been met in this case, and the scope of such a compromise if it has legal existence. The record clearly demonstrates that there was an agreement confected in this case for the purpose of forestalling potential litigation. The legal requirement of mutual concessions and sacrifice or reciprocal consideration — in more precise civilian terminology, cause — is embodied in the codal terminology that the parties prefer the contract of compromise “to the hope of gaining, balanced by the danger of losing.” This requirement of reciprocal consideration is inherently present here. The plaintiff preferred reasonably immediate payment under the terms of the compromise obligation to the hope of recovering all outstanding amounts owed him when that hope was evaluated in light of the defendant’s potential insolvency. The defendant obviously preferred the reduced terms of the compromise to the hope of winning a potential lawsuit when that hope was weighed against the danger of being adjudged liable for the entire amount. The compromise at issue here has been reduced to writing, and the record contains no allegations of failure of consent or capacity. With respect to the provision of LSA-C.C. Art. 3073 that compromises comprehend only those matters which the parties intend to be therein resolved, it appears that the instant compromise is all-inclusive since, by its very terms, it extends to “all claims presently existing among [the parties].”

As the foregoing discussion indicates, the codal requirements of a compromise have basically been satisfied, and there is little question as to the scope of the instant agreement. The next issue here concerns the question of whether this agreement has been employed by the parties to “adjust their differences.” Several courts have interpreted this clause to mean that a valid compromise does not exist unless there is a dispute as to the amount owed. Green v. National Life & Accident Ins. Co., 183 So. 604 (La. App. Orl. App. 1938); Breeland v. Kenner, 174 So. 678 (La. App. Orl. App. 1937); Aronson v. Pailet, 173 So. 545 (La. App. Orl. App. 1937); Cruze v. Life Ins. Co. of Va., 184 So. 735, rehearing denied 185 So. 492 (La. App. Orl. App. 1938). See also, Litvinoff, Civil Law Treatise, §§ 390 and 392 (1969).

But although the classic view is that there must be a controversy as to the amount in dispute in order for there to be a valid compromise, our research has revealed a number of instances in which our courts have upheld the validity of compromise agreements — even though there was no dispute as to the amount owed. In Oil Purchasers, Inc., v. Keuhling, 334 So.2d 420 (La. 1975), the Supreme Court upheld an agreement between an attorney and his heir which reduced the contingent fee of the attorney and which was submitted as the trial court’s judgment “on the joint stipulation of all parties.... ” Kuehling, supra, at 423. What is significant about Kuehling is that there was no question that the initial contract indisputably purported to convey a 25% contingent interest in certain immovable property. Thus in Kuehling, the Supreme Court upheld the efficacy of an agreement viewed as a compromise, even though there was not, in the classic sense, a dispute as to the amount owed under the original agreement. In Stern v. Williams, 365 So.2d 1128 (La. App. 4th Cir. 1978), according to the facts recited, there was apparently no dispute as to the amount of “certain monetary obligations” owed and the parties entered into an agreement settling the amount owed. However, despite the lack of an initial dispute as to the amount of these monetary obligations, the court upheld and enforced the validity of the agreement using the concepts of compromise.

It appears furthermore that in neither Smith Construction Co. v. Brechtel, 51 So.2d 643 (La. App. Orl. App. 1951) nor Midlo & Lehmann v. Katz, 195 So.2d 383 (La. App. 4th Cir. 1967) was the court preoccupied with the requirement that there be an amount in controversy. In Brechtel, there was no genuine dispute as to the original amount of $1,509.40 that was owed — although one party contested the correctness of that amount he “failed to point out to [the court] wherein this balance [was] in error.” Brechtel, supra, at p. 644. Despite the absence of a genuine dispute as to the amount owed, the court found that a compromise existed. In Midlo, there was no dispute that an amount of $6,775.50 was owed in legal fees; this uncontested debt was settled however, by an agreement in which the debtor agreed to pay $2,900.00. Despite the absence of a dispute as to the amount originally owed, the court believed it “unnecessary to discuss the question of whether the agreement ... complies with all of the requirements of a transaction or compromise under LSA-C.C. Art. 3071.... Quite clearly it does.” Midlo, supra, at p. 386.

Our holding today is that the Louisiana Civil Code does not invariably require a dispute as to the amount owed. This view is implicitly supported by much of the jurisprudence. Moreover, it appears to us that our interpretation of LSA-C.C. Art. 3071 is faithful to the literal wording of the Code. Article 3071 nowhere requires that there be a dispute as to the amount owed. The Code stipulates, instead, that a compromise is an agreement in which the contracting parties “adjust their differences.” Our reading of this pivotal phrase leads us to believe that an “adjustment of differences” comprehends that parties forego the adversarial contentiousness and opposition inherent in a lawsuit in favor of a conciliatory agreement. Stated differently, an “adjustment of differences” connotes that parties refrain from a legal dispute — a lawsuit — in favor of conventionally resolving their differences. Thus the “differences” of which LSA-C.C. Art. 3071 speaks is nothing more than the adversarial stance in potential litigation of opposing parties; the “adjustment” is the contractual resolution of this adversarial stance.

Within the context of these definitions of the codal terms, there has been an adjustment of differences — or a compromise — in this case. We in no wise pretend to ignore the case law mandating that there is no compromise without an amount in dispute. However, at the risk of rejecting judicial pronouncements of the past, we elect to literally adhere to the codal language itself.

Having determined today that Article 3071 does not invariably require that there be an amount in dispute in order for a valid compromise to exist, our conclusion inescapably is that a compromise does exist. Given that a compromise exists, the next issue is to delineate its effect. Our conclusion is that a valid compromise effectively abrogates and nullifies the prior claim or contract which was compromised by it, so that the only legal recourse of the parties is to enforce their rights within the context of the compromise agreement. This conclusion is implicit in the plethora of decisions in which suit on an antecedent claim or obligation has been barred by an agreement which compromised that claim or obligation. See, e.g., Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La. App. 1st Cir. 1975); Charbonnet v. Ochsner, 236 So.2d 86 (La. App. 4th Cir. 1970); Tschirge, supra; Davis-Wood Lumber Co. v. Farnsworth & Co., 171 So. 622 (La. App. 1937); Kelly v. Homer Compress Co., 110 La. 983, 35 So. 256 (1903). As has been observed by Beverly Hess in a well written student article, “Once the compromise is accepted, the plaintiff is es-topped from making further claims, for he is without legal right to sue. If he subsequently brings an action, the settlement can be pleaded in bar of his claims.” 14 Tulane L. Rev. 282, 287 (1940).

This theory that a compromise agreement abrogates the preceding claim or obligation which it compromises is supported by codal analysis. Article 3078 provides that compromises have, between the parties, the binding force of a legal judgment. It is a rudimentary proposition of law that an obligation is merged with the judgment of which it is a legal predicate, so that the obligation no longer has a distinct, separate or self-subsistent existence. See, e.g., Glazer Steel Corp. v. Larose Shipyards, Inc., 372 So.2d 250 (La. App. 1st Cir. 1979).

Since a compromise has the effect of a judgment, it causes the merger of the antecedent obligation or claim upon which it is based with itself, leaving the antecedent obligation with no separate or distinct existence. Thus a valid compromise, by operation of the doctrine of judgment and merger, functionally and theoretically nullifies the antecedent obligation which it compromises, so that the antecedent obligation may no longer exist to provide a self-subsis-tent cause of action. An exception to this rule would operate if the contract of compromise was abrogated and extinguished. However, the contract of compromise at issue here was not legally abrogated.

However, counsel for appellant urges that it is the original contracts which should define the rights of the parties. Under Midlo, supra, and Smith Construction Co., supra, the breach by one party of the compromise agreement abrogates the compromise agreement and reinstates the right of the other party to sue under the original contract. This court nevertheless cannot accept the proposition that the appellant may in this case resort to the original contracts. The obvious discrepancy between the facts of Midlo and Brechtel cases and the facts of the instant case leaves us with no option but to reject the application of Midlo and Brechtel here. In Midlo, the appellant entirely neglected or refused to pay the amount he owed under the compromise despite the fact that he was a “ ‘man of means’ ” and entirely capable of discharging this debt; in Brechtel, appellee testified that the appellant “ ‘never gave me a dime’ ” towards discharging the amount due under the compromise contract. In the instant case, to the contrary, the defendant substantially complied with the terms of the compromise agreement and made a good faith effort to discharge the amount owed under the compromise agreement. Unlike the situations in Midlo and Brechtel where the court found that virtually no attempt at compliance had been made, the trial court found here (and we agree) that the defendant’s actions amounted to substantial compliance with the terms of the agreement. We thus find that where, as here, there is substantial compliance with the terms of the compromise agreement, there has not been a breach of the compromise agreement. In short, we decline to follow the rule of Midlo and Brechtel where there has been substantial compliance with the compromise agreement. Whether there has been substantial compliance with the terms of the compromise agreement in any given case, of course, depends upon a case-by-case analysis.

It is important to note that the Louisiana jurisprudence supports the proposition that upon a breach of a contract of compromise, the injured party’s remedy is to sue upon the contract of compromise. Breach of compromise does not cause its abrogation and the resurrection of the original contract. Ditch, supra; Mongrue v. State Farm Mutual Automobile Liability Insurance Company, 396 So.2d 466 (La. App. 4th Cir. 1981); Succession of Teddlie, 385 So.2d 902 (La. App. 2d Cir. 1980); Keuhling, supra; Stern, supra; Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La. App. 4th Cir. 1962); Tschirge, supra; Wholesale Distributing Company v. Warren, 84 So.2d 250 (La. App. 2d Cir. 1955). It is pertinent to note that the result reached by this court today is in accord with a substantive policy long adhered to by the Louisiana courts. The compromise, as a legal device, promotes efficiency by permitting parties to resolve their differences without resorting to the judicial machinery. It is for this reason that compromises are favored under the law, and are not set aside absent vices such as bad faith, error or fraud. See, e.g., Young v. Barelli, 169 La. 319, 125 So. 258 (1929); Jackson v. U.S. Fidelity & Guaranty Co., 199 So. 419 (2d Cir. 1940).

We thus hold that the Louisiana Civil Code does not invariably require a dispute as to the amount owed in order for a valid compromise to exist; the requirement that there be “differences” between parties which are adjusted by the compromise may be satisfied by the existence of the adversarial and opposed legal positions of the parties. We hold also that where there has been substantial compliance with the terms of a compromise agreement, the compromise agreement is not abrogated and the original contract is not resurrected. The sole recourse of the parties is to sue upon, and resolve their differences within the framework of, the compromise agreement.

Therefore, the judgment of the trial court in all respects is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-C.C. Art. 3073.

      . LSA-C.C. Art. 3078.

      . LSA-C.C. Art. 3071 The requirement that compromise contracts be supported by consideration was made explicit in Green v. National Life & Accident Ins. Co., 183 So. 604 (La. App. Orl. App. 1938) and Reid v. J.P. Florio & Co., 172 So. 572 (La. App. Orl. App. 1937).

      . LSA C.C. Art. 3071.

      . The court did later find, however, that the compromise agreement had been abrogated. Implicit in the concept that a compromise agreement has been abrogated, however, is the concept that the compromise has had legal existence and validity.