author: ELLIS, Judge. DORÉ, Judge,

text:
    DONLON v. BABIN.
    No. 3184.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Nicholls Pugh, Jr., Lafayette, for appellant.
    Dugas & Bean, Lafayette, for appellee.
   ELLIS, Judge.

This is, a suit by a real estate agent for a commission alleged to be due him as the result of the sale of property by the defendant.

From a judgment in favor of the defendant the plaintiff has appealed.

It is shown that the defendant, Haywood Babin, together with his two sisters, Hazel and Louisiana Babin, owned in indivisión (an undivided one-third interest to each) a lot of ground with improvements in the City of Lafayette and, being desirous of selling the property, the defendant, individually and as the admitted agent of his two sisters and co-owners, on February 9th, 1948 went to the plaintiff, who was a licensed real estate broker who had been doing business in the City of Layfayette for thirty years, which resulted in the employment of the plaintiff by a written contract which is known as “exclusive listing.” The contract, among other stipulations, contained the following:

“I/we employ you or your successors, exclusively, with the sold exclusive right, to sell the same for $4200.00 cash * * * or for any other price, or terms as may hereafter be agreed upon and I/we agree to pay you or your successors a commission of 5% on the gross amount of any deal (agreement to sell or exchange) bearing on said property (minimum commission of $25.00) that may be negotiated during the existence of this contract * * *. In case of employment of counsel to enforce this contract, I/we will pay all costs and attorney’s fees.”
“I/we agree to refer all applicants to you and not to interfere in the sale of the property during the term of this contract.”
“ * * * As you are to act upon the faith of this employment and contract, it is to remain in full force and effect for a period of six months from date.”

The’ above contract was signed by Haywood Babin, individually, and the names of his two sisters and co-owners, Hazel Babin and Louisiana Babin, appear on the contract above the signature of “Haywood Babin, Agent,” .which authority was admitted.

On July 19th, 1948, prior to the expiration date of the contract’which would have been 'August 9th', 1948,-the defendant,: together with his co-owners, Hazel and Lour isiana Babin, sold the property by warranty deed to the Home Building and Loan Association for a consideration of $3,000.00. On the same day, July 19, 1948, the Home Building and Loan Association sold or re-transferred the property to the previous co-owner, Hazel Babin, also for a consideration of $3,000.00, represented by a mortgage note in that amount with the usual vendor’s lien and privilege retained by the homestead association.

It is shown that prior to this sale, the defendant attempted to contact the plaintiff with regard to the homestead transaction but was unable to do so, and as the defendant was in need of money, he and his sisters agreed that .they would negotiate the homestead transaction whereby all three would sell the property to the homestead for $3,000.00 and the homestead would re-transfer the property to Hazel Babin, and with the money received from' the homestead for which it retained a mortgage, Hazel Babin paid to the defendant $1,000.00 for his undivided one-third interest, and the same amount of money to Louisiana Babin for her like interest.

There is- testimony to the effect that should Hazel Babin subsequently sell the property for more than $3,000.00 she agreed to divide all over that amount equally with her brother and sister. However, she had never sold the property to the date of the trial and had, as a matter of fact, made improvements with all or a portion of the $1,000.00 which she received from the Homestead Association.

It is not disputed that the defendant understood the contract and that the plaintiff had fulfilled his part of the contract insofar as attempting to sell or exchange the property but had not produced a purchaser before the sale to the homestead by the defendant and his two sisters and co-owners and the transfer or resale by the homestead to Hazel Babin.

It-is the contention- of the plaintiff that the sale of the property during the life of and under the terms of the contract constituted a breach thereof, which entitled him-to his commission and attorney’s fees, which counsel requests be fixed at $75.00, and all costs of court.

Counsel for defendant, in his brief, contends that there-are two questions before this Court for determination, viz.: '

“I. Was the transaction entered into between Haywood Babin, defendant herein, and his two sisters a ‘deal’ such as was contemplated by the parties at the time of the listing, and is said ‘contract of listing’ enforceable by the courts?”
“II. Assuming the Court finds that there is liability on the part of defendant, what is the amount of liability — is there liability in solido as to defendant.”

In answer to the first question, counsel argues that the word “deal” in the listing contract is defined in Winston’s Dictionary, College Ed. Copyright 1940, and Roget’s Thesaurus as having a variety of meanings which would include agreements to purchase, agreements to sell, contracts of listing, acts of mortgage, donations, pledges, money collected and “what have you.” Counsel for defendant follows this in his brief with a statement as follows: “Could it be seriously contended that plaintiff would be entitled to his 5% commission on the total amount if the defendant and his sisters would have mortgaged the property for the sum of $5,000.00? Actually, that is what Haywood Babin and his sisters did and intended to do at the time the arrangement between them was made. Is the provision of the Donlon listing contract such that to enforce it would lead to absurd consequences ?”

In answer to the above, the contract itself is clear as to the meaning intended in the contract by the word “deal”, for immediately thereafter in parenthesis is “agreement to sell or exchange” which refers to and defines this word and, therefore, it clearly would not cover an act of mortgage. There was no intention fn the part of the defendant or his sister, Louisiana Babin, to mortgage their interest in the property, else they would have actually done so, or, along with their co-owner, Hazel Babin, would have repurchased or caused to be re-transferred to them the property in question. They did not do this but sold their interest to the homestead for a valid consideration which each received. It might be said that the transactions were, in effect, a sale to their sister and co-owner Hazel Babin. Under any interpretation, the defendant and Louisiana Babin sold their interest. The purchase of property by Building and Loan Associations and a resale of the property at the same time is a sale of said property with the vendor’s right and privilege. See Holloman v. Alexandria & Pineville Building & Loan Association, 137 La. 970, 69 So. 764, and Capillon v. Chambliss, 211 La. 1, 29 So.2d 171.

It is the contention of the defendant that the transfer to the association was not such a sale as would render him liable for the commission and that to hold to the contrary would' lead to an “absurd consequence,” in violation of Article 1945 of the Civil Code as the defendant did not intend to bind himself and his co-owners to do nothing with the property insofar as exchanging or selling to each other was concerned. Counsel for defendant adopts the reasoning of the Trial Judge on this point to the effect that “clearly the3r did not need a broker to sell to each other. While the transfers were sales, the association was interposed to obtain money with which to pay the co-owners for their interest. To hold otherwise would lead to an ‘absurd consequence’, and were we to write this intent into the contract it would be contrary to public policy and give the broker a distinct and undue advantage. It cannot reasonably be said that a co-owner is ‘another party.’ ” Counsel cites in support of this reasoning Boisseau v. Vallon & Jordano, 174 La. 492, 141 So. 38, 40.

Such an argument might well be made on behalf of Hazel Babin, however, we are not called upon to pass upon this question at this time as neither she nor her sister, Louisiana Babin, were made parties defendant.

The contract in question included any person capable of purchasing the property or the interest of any one or more of the co-owners in accordance with the terms of the contract. Of course, if the defendant and his sisters had known that the co-owner wanted to or would purchase the property prior to the time they signed the contract, they would not have entered into it, but the same argument can be made with regard to any other third person. There is nothing in the contract that would have prohibited plaintiff from effecting the sale to Hazel Babin and earning the commission from the two co-owners.

The present case is easily distinguished from the cases cited by counsel for defendant and particularly the Boisseau v. Vallon & Jordano, supra, for in that case the contract stipulated at the time of the agreement to exchange that the real estate commissions were to be paid even though the exchange was not consummated. The Court stated: “The words of this instrument are ‘clear and explicit’ that he was to pay these commissions, even though the motive and purpose which prompted him to sign it would not possibly be attained. But we cannot give effect to these provisions when to do so would lead to an ‘absurd consequence.’ ”

In the present case there was actually a sale made.

There is no doubt that a contract of employment conferring upon a real estate broker the exclusive right to sell the property during a specified period of time entitles the broker to a commission on any sale of the property made during that time whether the sale be made by the owner personally or through another broker. Viguerie v. Davis, 5 La.App. 77; Veters v. Sweeney, 5 La.App. 548; Fowler v. Phillips, 159 La. 668, 106 So. 26; Clesi v. Cooney, 7 La.App. 182; Harvey v. Sehrt, 12 La.App. 583, 126 So. 568; Kaufman Agency v. Viccellio, La.App., 174 So. 709; Zollinger v. Gust, La.App., 192 So. 132; Sollie v. Peoples Bank & Trust Co., La.App., 194 So. 116; Doll v. Thornhill, La.App., 6 So.2d 793; Nickerson & Vennard v. Butcher, 14 La.App. 20, 129 So. 240.

The Orleans Court of Appeal, in the case of Doll v. Thornhill, 6 So.2d 793, 795, considered a listing contract identical in all material respects with the contract now under consideration. In that contract, as well as the one being considered, there was a provision whereby the owner agreed to refer all applicants to the broker and not to interfere- in the sale of the property during the term of the contract. Referring to the quoted stipulation the Court stated:

“But above and beyond all of these facts we find that Thornhill clearly violated the plain provisions of his contract in not referring Bankston to Doll as soon as the former evidenced any interest in the property. It will not do for him to say that had he done so, no sale would have resulted. ■ A real estate agent is supposedly an expert in his business, and we must presume that he could have accomplished what Thornhill accomplished, or that he, could have persuaded one of the parties to recede sufficiently from his position for the consummation óf a trade. At any rate, he was entitled to the opportunity to try. To uphold the contention made here by Thornhill would establish a dangerous rule and would open the door in many cases to the perpetration of fraud upon agents who conscientiously try to carry out their mandates.
* * * * • * *
“But all of these questions need not he gone into. A real estate agent, who has an exclusive contract and who under it has done what he could to sell the property, need not show that it was actually through his efforts that a purchaser was produced.
“Nor can that stipulation be looked upon as unimportant or as one which the owner might overlook, for immediately after the signing of the contract, his attention was called to it in a letter in which the agent thanked him for employing him and said to him that his attention was called to the fact that all applicants should be referred to the agent. For these reasons when Thornhill dealt directly with Bankston, and did not refer him to the plaintiff, he breached the contract, and later when he directly made the sale to Bankston, he made himself liable, to' Doll for the stipulated commission. Since legal services have been necessary to vindicate the rights of Doll, he is also liable for the attorney’s fees provided for in the contract.”

Wé are, therefore, of the opinion that plaintiff is entitled to a commission from the defendant, however, it must be decided as-to whether the defendant is liable for the entire commission or only his proportionate share.

It is contended by plaintiff that in view of the provision of the contract that “I/we agree to pay you a commission * * * ” binds the defendant in solido. Counsel cites Article 2091 of the Civil Cí>de and a number of authorities, however, the provision of the contract referred to was a form used in the event that there was one owner or more and should there be more than one, the “I" is surplusage. The authorities cited are not applicable to the present case and particularly in view of the holding in the case of Whatley v. McMillan, 152 La. 978, 94 So. 905, 906, wherein the Court said: “But we do not think that C. V. McMillan (co-owner who represented himself to be agent for other co-owners), as co-owher, can be held in solido, or for the entire amount called for by the agreement, but only in proportion to his interest in the property. If the agreement had been ratified by the co-owners, and the sale had been consummated, the several co-owners would have had to account to plaintiff only each in proportion to his interest in the land. The situation is analogous with that of joint vendors whose liability in warranty is in the proportion of their ownership. Suthon v. Laws, 127 La. 531, 53 So. 852, Suthon v. Viguerie, 127 La. 538, 53 So. 855. If it were otherwise, a joint owner to an infinitesimal extent, in real estate might be held in warranty for the entire price which he and his co-owners had received from the sale of the property, or, in a case like the present, for the entire commission of the real estate agent; and this even though the title to his own small interest was good, or, in the case like the present, even though he himself had been willing to carry out the agreement for the gale.”

We, therefore, conclude that if the plaintiff had endeavored to perform his part of the contract ánd as the sale by the defendant of his interest in the property was made during the life of the contract and prior to its expiration and the defendant clearly understood the provisions of. the contract requiring him to refer all prospective purchasers to the plaintiff, which he failed to do, he is liable under the provisions of the contract for his share of the agent’s commission, which is one-third of the total commission of $150.00 or $50.00.

Counsel for defendant contends that plaintiff neither alleged nor attempted to prove that he was entitled to attorney’s fees. The petition contains the entire contract of listing which provided that: “ * * * In case of employment of counsel to'enforce this contract, I/we will pay all cost and attorney’s foes,” and plaintiff prayed for “attorney’s fees in the sum of $75.00 and for costs of this suit and for all general and equitable relief, etc.”

We are of the opinion that plaintiff’s petition and prayer is amply sufficient so as to entitle him to a decision on the question of attorney’s fees. In the case of Williams v. Ralph R. Miller Shows, La.App., 17 So.2d 67, 68, a similar question arose, and the Court in allowing the attorney’s fees, stated: “On the question of attorneys fees, it has frequently been held that proof of the value for the services rendered need not be made as these services being performed in the presence of and under the eyes of the court itself, the court can, on its own initiative fix such value, it would seem that their recovery follows as a legal consequence of the dissolution of the writ.”

Also see Alexander v. Home Insurance Company of N. Y., La.App., 142 So. 708, and Knowles v. Dixie Fire Insurance Company of Greensboro, North Carolina, 177 La. 941, 149 So. 528.

As plaintiff prayed for $75.00 attorney’s fees, and the defendant’s liability being one'-third, we will allow attorney’s fees in the sum of $25.00.

It is, therefore, ordered that the judgment of the District Court be reversed and that there be judgment in favor of the plaintiff and against the defendant in the full sum of $50.00 and in the further sum of $25.00 as attorney’s fees and all costs.

ROBERT D. JONES, J., sitting ad hoc.

DORÉ, Judge,

(dissenting).

As I view this case, the material facts in this case are as follows:

During the existence of the contract of listing, Haywood Babin and Louisiana Babin needed money with which to pay some pressing existing debt. In order to borrow money from the Home Building and Loan Association, it was agreed between the co-owners of the property that the title of the property be placed in the name of Hazel Babin, one. of the co-owners, and in order to effectuate this, the said Haywood and Louisiana Babin, by deed on July 19, 1948, transferred their said interest to Hazel Babin, for a stipulated consideration of $1000.00. Thereafter, Hazel Babin transferred the property to the Home Building & Loan Association for the stipulated sum of $3,000.00, and in turn, the Building & Loan Association retransferred the property to the said Hazel Babin for the said amount, reserving a vendor’s lien and privilege and a mortgage on the property, Haywood and Louisiana Babin each receiving $1000.00 from the said amount so borrowed, and Hazel Babin allowing the said Building & Loan Association, to retain her $1000.00 for her future, use. At the time these transactions were made, it was agreed between the co--owners that the property was to remain listed with the plaintiff, and that in the event of sale for more than $3000.00, the amount of the mortgage, then the surplus was to be divided equally between the co-owners. Such agreement and understanding was sought to be imparted to plaintiff, but it could not be done for the principal reason that plaintiff could not be found.

The question which arises is the effect to be given these acts of transfer. Are they really sales in contemplation of the contract of listing? I believe not.

The pertinent statute, Act 140 of 19’32, Section SO, as amended by Act 9 of 1946, Section 4, Dart’s Statute, Section 744.19, states: “(a) Every loan on real property shall be secured, except as otherwise hereinafter provided, by vendor’s lien and privilege and first mortgage upon real property situated in the parish where such association is domiciled, * * And after providing for the rank of such vendor’s lien ahd privilege, further provides: “It shall be lawful for such association to purchase from any shareholder or other person any real estate, improved or unimproved, and to sell or dispose of the same in the same condition or after improving, repairing or building upon the same, to any member, provided that such association may make sales of property, real and personal, either for cash or on terms of credit, that such association shall have power to loan and advance money to its members for the purpose of enabling its members to purchase, improve, repair and build upon real estate and to remove encumbrances and mortgages therefrom and for any other purpose, and to make all contracts and do all acts necessary and proper in connection therewith, and that in case of any such association in aid or for the accomplishment of any of the aforesaid powers .shall purchase .or secure property from any person, and shall afterward sell or dispose of the same property to a member, then such association shall have a privilege of equal rank as the vendor’s lien and privilege upon the property so acquired, sold and disposed of for the security of the payment of such money due by such member; that such associations are authorized and empowered to contract and agree, with any person, to acquire or purchase from any such person any property and afterward to sell or dispose of the same property to .a member even though said agreement be made at one and the same time, and such contract and agreement shall not be considered or dealt with as a loan, but as a purchase or acquisition by the association, and then as a sale by the association, to such member, and such association to secure payment of the amount due by such member, - shall have a lien of equal rank with a • vendor of real estate and shall enjoy for the protection of its claim and the enforcement of its loan all the rights, privileges and securities which are now accorded by: law .to the vendor of. the property,”

Thus the statute in express terms authorizes a building and loan association to contract for the sale and resale of property, and specifically declares that such a transaction ‘.‘shall not be considered or dealt with as a loan,” but as a sale and resale to secure the amount lent to the borrowing member under a vendor’s lien and privilege on the property involved in the transaction.

Hence the sale and resale to and from a building and loan association quoad the parties • to the transaction, or to parties claiming under them, must be considered and dealt with as a sale and not as a loan, so as to preserve a ’vendor’s lien and privilege on the property conveyed and recon-veyed. However, quoad other parties, or parties not claiming theréunder, I am of the opinion that it was not the intention of the Legislature, in coniferring upon building and loan associations this valuable right to effect a change in the transaction or the status of the property. Under our jurisprudence, a sale and resale between parties, other than a building and loan association, is in legal effect a conventional mortgage and does not give rise to the vendor’s privilege; thus we see why the Legislature saw fit to grant building and loan associations this valuable right. I again reiterate that as between plaintiff and defendant these transactions amounted to a conventional mortgage and in truth and in fact, not a sale.

Since these transactions cannot or should not be considered, in so far as this case is concerned, in any other light but a mortgage, the question arises as to whether plaintiff is entitled to 'a commission on the amount borrowed. In order to answer this question in the affirmative, we would have to hold that the granting of this mortgage was a “deal” contemplated by the parties. I am of the opinion that we cannot do so for the reasons stated by the trial judge, in that, to do so, would lead to absurd consequences. . I am in full accord with the expression of Justice McCaleb in the case of Bondio v. Joseph Binder, Inc., found in La.App., 24 So.2d 398, at page 401(4, 5), wherein he states: “In interpreting the contract, it is, of course, of primary importance to discover whether its provisions are clearly set forth and that they express the true intention of the parties.' And, even if the words used are fairly explicit, it is our duty to refrain from construing them in such a manner as to lead to absurd consequences. . See Article 1945 of the Civil Code.”

I respectfully dissent.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    BERGERON v. HIGHWAY INSURANCE UNDERWRITERS et al.
    No. 3191.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Porteous & Johnson, New Orleans, for appellants.
    A. Deutsche O’Neal, Houma, for appel-lee.
   ELLIS, Judge.

On the morning of February 18th, 1948, shortly after seven A.M., Gayle A. Barrios, accompanied by the plaintiff (guest passenger) was driving his automobile on the PIouma-Raceland Highway when a collision occurred between his automobile and a truck belonging to the defendant, Nichols Truck Line, which was being driven by an employee, Arthur W. Arnold. Barrios and Bergeron both have filed suit for personal injuries sustained as a result of the accident against I. A. Nichols, doing business in the name of Nichols Truck Line, and the employee-operator of the truck, Arthur W. Arnold, and the public liability insurance carrier of Nichols Truck Line, the Highway Insurance Underwriters, in which the plaintiff Ber-geron prayed for damages for his injuries in the sum of $19,567.92, and Barrios is .seeking the recovery of $15,600.00 with interest and costs.

The cases were consolidated for the purpose of. trial and are also consolidated on this appeal, separate judgments having been rendered by the lower court in favor of the plaintiff Bergeron in the sum of $13,308.92 with interest at the rate of 5% from judicial demand and for all costs, and judgment rendered in favor of the plaintiff Barrios in the sum of $8,450.00 with 5% interest from judicial demand and all costs, and further judgment in favor of the intervenor, Fidelity and Casualty Company of .New York, as prayed for and in the further sum of $5.0.00 as attorney fees in connection with the services rendered in the intervention, and ordering that intervenor’s judgment be paid out of the proceeds of the judgment rendered herein in favor of the plaintiff, Gayle A. Barrios, first and by priority.

The defendants have appealed from this judgment, however, they do not strenuously deny the liability, but seriously question the quantum.

At the time that this accident happened the highway was .enveloped in a heavy fog and the automobile and truck involved were . travelling in opposite directions when the truck suddenly pulled out of its lane of traffic in order to pass a motor vehicle. Barrios, upon being confronted with this large truck in his lane of traffic, pulled toward the shoulder of the highway and the operator of the truck, being unable to get back to his proper lane of traffic due to automobiles travel-ling therein, also pulled toward the shoulder of the highway and the head-on collision occurred. It would be useless to detail the testimony as there is no question that on this foggy morning, with visibility very poor, the driver of the Nichols truck was extremely negligent in driving his truck into the lane of on-coming traffic in an effort to pass another motor vehicle in the face of on-coming traffic.

The question of liability may be disposed of in the words of the District Judge in his opinion as follows: “The testimony is overwhelmingly conclusive that the accident which occasioned the injuries made the subject matter of these proceedings, was the result of negligence on the part of Arthur W. Arnold, a truck driver of the Nichols Truck Line belonging to I. A. Nichols, one of the defendants. This conclusion is clearly evidenced by the admission of Arnold, also a defendant, who was the first witness called to testify under cross examination. -Consequently, the only question involved in these proceedings is the quantum of damages.”

As soon as possible after the accident, the plaintiff Bergeron' was taken to Dr. Willard Ellender in the town of Houma, where he was rendered first aid in the nature of dressing and suture of the cut or wound on his forehead and right upper lip, and suture of the wound of the nose, and reduction under gas of the dislocation of the fifth metacarpo phalangeal joint, the placing of a splint on the right hand in order to prevent a recurrence of the dislocation, and the application of a cast to the right foot as a result of a fracture of the proximal end of the seventh metatarsal bone, and treatment of severe contusions of the left knee with extensive ecchymosis of the medial and prepatella region, contusions and brush burns of the left hand and contusion of the chest. After treatment by Dr. Ellen-der at hi’s clinic the plaintiff was taken to his home and the bill of Dr. Ellender shows that he made four home visits and that on March 8th, 1948 the plaintiff made his first office visit to Dr. Ellender which was repeated five times. On May 18th, 1948, or exactly three months from the date of the injury, Bergeron, who was employed by the Southern Pacific Railroad Company as assistant express messenger, reported for duty and returned to work.

From the time of his injury and for a period of approximately four weeks he was attended by a nurse, however, we are inclined to believe after reading the record that the services of the nurse were not necessary for that length of time but the defendant is not disputing her bill of $448.-00 for the four weeks services so neither will we. The wound on Bergeron’s forehead is described by Dr. Ellender in his letter of April 26th, 1948 as a three inch laceration of the forehead. This wound completely healed and left a slight scar approximately two and one-half inches just below the hair line and is hardly noticeable. The small wound over the bridge of the nose required two stitches and left no scar and the wound to the right upper lip healed satisfactorily and left no scar. The contusion and injury to the left hand completely healed, leaving a small scar approximately one and one-quarter inches in length. The injury to his left leg healed without any after effects and the injury to the right foot and ankle completely healed although it stayed swollen for several months which swelling was, in the opinion of Dr. Shirley Lyons, due to the period of immobolization and disuse. Ber-geron also lost a filling out of a right upper tooth which he had replaced by Dr. Comeaux whose bill for the work was only $3.00 so this could not have been very serious. The only permanent impairment which Bergeron suffered was a ten per cent disability in the right hand, as a result of the injury to the little finger joint and also accompanying injury to the ring finger joint on the right hand. The plaintiff is unable to completely close the right hand as the little finger has a tendency to draw to the left and prevents the closure.

According to the testimony, the splint on the right hand for the dislocation of the little finger was removed at the end of the seventh day at plaintiff’s home by Dr. Ellender, and by the end of the tenth day the plaintiff was able to use the left hand which had been injured, and after two weeks he could use the right hand to the extent of attempting to close it. The injury to the chest was not internal but it was severely bruised as it was discolored across the lower part of the chest the width of approximately eight inches which no doubt caused him quite a bit of pain as did the contusions of the left knee and the injury to the right foot. The cast on the right foot was removed after six weeks and he used crutches thereafter. The final report of Dr. Ellender on September 6, 1948 was to the effect that Bergeron had fully recovered except for a complaint of pain in the right hand near the region of the fifth metacarpal phalan-geal joint which was dislocated and that the small finger had a tendency to adduct when the hand was flexed and it interfered with the ring finger which interfered with the function of the hand, particularly when grasping an object, and that, in his opinion, Bergeron had a ten per cent permanent disability of the right hand as a result of this condition.

Bergeron was also examined by Dr. Shirley Lyons on May 11, 1948 and in his report he correctly detailed the injuries suffered by plaintiff and stated, that he had recovered from these injuries and should be able to resume his normal routine after a.period of 30 to 40 days after his examination, and that, in his opinion, there would be no permanent disability. On February 10th, 1949, Dr. Lyons submitted another report as a result of a reexamination of plaintiff on January 27th, 1949 in which he stated that the right ring and right fifth fingers did not extend completely when resting on a flat surface, and that the right fifth finger flexed to about 30 or 40 per cent and the right ring finger to about 50 per cent which, in his opinion, was the result of the old dislocation of the fifth finger and associated trauma to the fourth and the long period of immobilization. All of Bergeron’s other wounds and injuries had healed with no permanent aftermath except the disability to the right hand. Dr. Lyons stated that Ber-geron was a most cooperative patient with a splendid attitude.

Thus, we have a man who was unable to work for three months due to his injuries and who was treated at his home for a period of ten days and was able to visit the doctor’s offce on the 19th day after the injury for treatment. Taking into consideration the nature and extent of his wounds, bruises and injuries, there is no doubt that the plaintiff must have suffered quite a bit of pain for ten days and also suffered some pain but to a lesser degree thereafter for a period of several months. We cannot agree with the trial judge in his award in this case as the wounds and injuries- which left no permanent disability whatsoever would be compensated by- an award under the head of physical pain and suffering, whereas the judge of the lower court, for example, has allowed $3,000.00 for pain and suffering, and $2,000.00 for mental anguish and, in addition, allqwed lump sums for each injury as wound and scar on forehead, $600.00; injury to nose, $250.00; injury to mouth and lips, $150.00; injury to teeth, $50.00.

Of course, as to the quantum of damages, each case must be judged on its own facts, and under the facts in this case and in line with the previous decisions, it would be our opinion that plaintiff is entitled to $3,000.00 for his injuries, disfigurement, mental anguish, pain and suffering, together with $846.00 for loss of wages, $662.92 for doctor, drug, dentist and nursing expenses, totalling $4,508.92.

It is, therefore, ordered that the judgment of the District Court, as amended be affirmed.

ROBERT D. JONES, J., sitting ad hoc.


text:
    BARRIOS v. HIGHWAY INSURANCE UNDERWRITERS et al.
    No. 3190.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Porteous & Johnson, New Orleans, for appellants.
    Christovich & Kearney, New Orleans, for appellee.
   ELLIS, Judge.

As to the pleadings, facts and liability of the defendant to the plaintiff, see the case of Bergeron v. Highway Insurance Underwriters et al., La.App., 44 So.2d 140.

As to the quantum of damages in this case, the record reveals that the plaintiff was rendered in a more or less unconscious condition to such an extent that he was rather hazy as to what happened after the accident. He went to Dr. Ellender a short time thereafter where he received some first aid and Dr. Ellender diagnosed his injuries as follows: “Contusion of the head, anterior chest, both knees, wrists, cerebral concussion, laceration of the left infrapatel-la region, strain of both knees with possible injury to the semilunar cartilage.”

The treatment recommended was rest in bed, ASA, purgatives, limitation of fluid, X-rays, with the notation that he return to light duty after one week.

According to the testimony, Barrios at the time of the trial on January 24, 1949 was thirty-one years of age, married and had three young children, and was employed as a safety engineer which required him. to go to any place in the plant where men might be working. Barrios stated that it was necessary for him at times to climb ladders and that for perhaps • three weeks or a month he was unable to make any inspections, 'hold any meetings or climb anywhere.'

After the diagnosis by Dr. Ellender X-rays were taken of Barrios’ head, chest and knees and all were negative for fracture. There was a deep cut just below the left knee which he refused to have sutured as well as refused to take a tetanus serum due to the fact that he always reacted to such serum. According to Dr. Ellender, he reported to his office several times after the accident and there was general improvement except for the right knee which continued to be painful especially on movement, and upon examination the knee was still slightly swollen and upon forceful bending there was a crunching sensation and a tenderness under the knee and slightly locking on flexion and extension. As shown by previous report and as stated in a letter of January 28th, 1949, we are now more or less quoting, Barrios was not admitted to the hospital but was advised to rest in bed, was given a mild sedative and it was suggested that fluids 'be limited and a purgative was advised. “The latter two orders were suggested because of the cerebral concussion.” Dr. Ellender states that the complaint as to his knees persisted and he advised him to consult Dr. Battalora, orthopedic surgeon, which Barrios did, and Dr. Battalora concurred with Dr. Ellender in his opinion of an injury to the right external semilunar cartilage. In the record is a report from Dr. Battalora dated January 24, 1949 to the Fidelity & Casualty Company, one of the defendants herein, in which he stated that he had treated Barrios since May 31, 1948, and that on August 5, 1948 he operated upon his right knee and at that time “a tear was noted in the external semilunar cartilage of this knee. He progressed satisfactorily following this operation, although he still had some symptoms referable to his knee.” Dr. Battalora further stated that Barrios still complained of some pain in his knee in the patellar region and of cracking in the knee joint which lead him to believe that in addition to the injury to the external semilunar cartilage he also suffered an injury to ' the patellar itself. At the time of this report he did not believe that Barrios was disabled fully for his type of occupation but that he did have some percentage loss of use of the right knee which he estimated at about 10% with a possibility that with continued use and over a long period of time the disability would increase and with the further possibility that he would have to have a secondary operation on the- knee for the removal of the patella which, if it had to be done, would increase the disability in his estimation to about 20% loss of use of the knee.

On January 25th, 1949 the attorneys for Barrios wrote to Dr. Battalora and in this letter propounded five questions to the doctor which the doctor answered in the order propounded in the letter on February 9th, 1949. The questions and answers are as follows :

“Q. In his present condition, would you normally expect Mr. Barrios to have some pain about his knee and some difficulty in using it? He contends that it sometimes locks or catches and throws him off balance. Is this, in your opinion, a sincere complaint? A. I would normally expect Mr. Barrios to have some pain in the right knee and some difficulty in using it. Due to the condition in the patella it is very probable that he does experience some catching in the joint, which could throw him off balance. This complaint in my opinion is sincere.”
“Q. What is your opinion about the possibility of his condition getting worse so that the patella will -have to be removed — that is to say, do you think there is a 50-50 chance that he will not have further trouble, or do you think that his chances of further trouble are greater than that? A. There is a possibility that the condition can progress and become worse. I would say that there is a 50-50 chance that he will not have any more trouble than he is presently experiencing. I make this estimate in view of the fact that- his occupation is not a heavy one, although it does require him to get about a great deal.”
“Q. In the event of the necessity of an operation, about how long would he be in the hospital and what would be the surgeon’s cost and the approximate hospital bill? A. If he had an operation done on the knee it would entail excision of the patella. If he was operated upon it would require a hospitalization period of approximately two weeks. The cost of this type of operation would be about $250.00 and the hospital bill would approximate about $150.00 to $175.00.”
“Q. Is there any danger that the loss of the patella would so disable Mr. Barrios as to prevent him from doing his usual work as Safety Engineer, which necessitates extensive walking; climbing; bending, getting around in corners- and under machinery, etc.? A. As far as disability following removal of a patella I would estimate that in the present instance if would cause a disability of not higher than 25% loss of use of the leg. I believe the patient could carry on his previous occupation. It would require a -total disability period of approximately three months.
“Q. If you still believe that after the operation, the disability would be 20% loss of use of the knee, how would this affect his leg; and is there any danger of that loss increasing? A. If he was operated upon I do not believe that the disability would increase higher than that stated. As far as removal of a patella affecting the leg I do not -believe that this would be of any serious import. The only residual that he would have would be some limitation in full flexion of the knee joint. I do not believe that the percentage of disability would increase.”

In the record, also, is a report dated May 11, 1948 from Dr. Shirley Lyons, New Orleans, addressed to Porteous and -Johnson, attorneys for the defendants, in which he stated:

“Examination revealed the following: Well developed and nourished male, in no acute pain, cooperative attitude; weight 170, height 5' 8”, blood pressure 160/110, pulse 80, temperature 98.6. Head presents no abnormal scars; patient complains of tenderness to touch over left frontal area; neck normal; mouth normal. Heart and chest negative. Upper extremities normal. Right leg normal except for slight swelling of prepatellar region and patient complains of pain over anterior and lateral surfaces of right knee. Left knee shows slight tenderness, no swelling, small healed scar 1%" below left patella. Genitalia normal. Reflexes normal.”
“Conclusions: This patient suffered multiple injuries as described above. He probably suffered milk concussion from which he had recovered; also severe contusion of both knees — there remains some residual discomfort in region of right knee which prevents normal use of right knee at this time.”

On April 7th, 1949 Dr. Lyons made a further report to the attorneys for defendants, which was based upon another examination of Barrios on March 8th, 1949. This report shows that Barrios still complained of continued pain in the right knee and that .there was a satisfactory recovery after tjie operation by Dr. Battalora who-removed the external semilunar cartilage. Dr. Lyons stated that there was a minimum of disability resulting ' from -the operation arid that, in his opinion, the ten per cent disability estimated by Dr. Battalora was a proper estimate! The injury occurred in February 1948 and Barrios was able to perform his usual work at the time of this report, “some fourteen months later, with á minimum of disability, which is estimated at 10%. For this reason, we do not see the possibility that the right patella will require excision. The patient states that all other conditions from which he complained have just about disappeared. The headaches disappeared after about one year. * *' * ” This report reveals that Dr. Lyons again examined Barrios on March lSth, 1945 with a view of determining the amount of swelling in the knees and legs late in the afternoon (6:30 P. M.) but there was no abnormal swelling present. His conclusion was again to the effect that Barrios had made an excellent recovery and that the estimated total disability of the right knee is a minimum and 10% is within reason.

In our opinion, this man suffered a more serious permanent injury than Bergeron for in his type of work it was necessary for him to climb on, over and under machinery and to climb ladders and demonstrate safety methods which certainly made it necessary for him to have the full use of -his legs and knees. Also, his testimony reveals a mental anguish with regard to his condition or his ability in the future to continue to perform his duties, whereas such impression is not gained from the testimony as to Bergeron. He suffered headaches for quite a time after the accident as well as quite a bit of pain in his neck as a result of the blow to his head and pain as a result of the injuries to both legs. As a result of the operation, on his knee he remained in the Mercy Hospital in New Orleans six or seven days and it took him about four weeks to recuperate to a point where he could walk comfortably again during which time he did not work. Naturally, he suffered from the operation and he testified that for three days following the operation he suffered extreme pain.

Intervenor paid medical expenses for Barrios to Mercy Hospital in the sum of $318.65, and the Lower Court in addition, allowed $50.00 as attorney fees for services rendered intervenor, all of which is correct. We do not find from the judge’s reasons the basis of his judgment for $8,450.00 other than an award for special damages for the loss of his car, $450.00, personal possessions, $25.00, transportation charges in the course of medical treatment, wrecker service in the sum of $15.00, and cost of knee support in the sum of $10.00, $318.65 for medical expenses paid by intervenor and together with $50.00 as attorney’s fees. These items appear correct and are not contradicted, however, we believe that an award of $5,000.00 for permanent injuries, pain, suffering and mental anguish would be sufficient.

As thus amended the judgment of the District Court is affirmed.

ROBERT D: JONES, J., sitting ad hoc.


text:
    DARTEZ v. MEAUX.
    No. 3179.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    A. Wilmot Dalferes, Lafayette, for appellant.
    O. H. Deshotels Jr., Kaplan, for appellee.
   ELLIS, Judge.

This is a suit, brought by the plaintiff as the owner and lessor of a certain parcel <~f ground and improvements located in the Town of Kaplan, Louisiana, against his lessee, the defendant herein, for the rent of said premises for the year 1938 at the rate of $50 per month, subject to a credit of $15.12, or a total sum of $584.88. (The credit should be $16.12) Plaintiff claims a lessor’s lien and privilege upon all the furniture and property in the leased premises and prayed for and obtained a writ of provisional seizure under which the same was seized by the sheriff. Although this writ was issued on December 4, 1948, under a verbal agreement entered into by the attorney for plaintiff, the defendant and the Sheriff, the defendant was permitted to operate his saloon until Tuesday, December 7, 1948.

On the 9th day of December defendant obtained an order- permitting him to furnish bond, which he did, and obtained a release of the property. Defendant in his answer denied that he was indebted to the plaintiff in any amount whatever and further alleged that during the latter part of December 1947 he had purchased the contents of a saloon from the plaintiff for $4,000 cash which he had paid to the plaintiff. He admitted haying entered into the lease with the plaintiff for $50 per month but alleged that during the month of February 1948 the plaintiff was in need of funds and had requested defendant to pay the entire amount of rent for that year in advance, and that there was also due at that time to the plaintiff an indebtedness by the defendant which he acknowledged to be $400, and that defendant, therefore, executed his check for $1,000 in order to pay the rental and indebtedness and by the payment of these amounts he had discharged his obligation of rental toward the plaintiff for the entire period of the lease.

Defendant then assumed the position of plaintiff in reconvention and alleged that the plaintiff was indebted unto him in the amount of $960.95 for money advanced in the sum of $150 and for goods and merchandise purchased from the defendant in the sum of $60.95, and tliat due to the illegal issuance of the provisional seizure he had suffered damages in the amount of $750 for loss of earnings, embarrassment and humiliation. . . ,

The case was duly tried and-resulted in a judgment for the plaintiff for $583.88 as prayed for from which the defendant has appealed.

The record discloses that on' the '23rd day of December, 1947, plaintiff and defendant executed an act of sale in which the plaintiff sold, transferred'and delivered unto defendant “all of the furniture, equipment, accessories, stock, merchandise and other movable effects belonging to and forming a part of the business known as ‘Dartez Bar’ located on State Highway No. 43 in the town of Kaplan, Vermilion Parish, Louisiana,” before Mr. Marcus A. Brous-sard, attorney-at-law and Notary Public in the Town of Labadieville,' for a cash consideration of $4,000, the vendor accepting the receipt thereof and’giving full acquittance therefor. This sale was dated January 1/1948 and was not placed of record until the 2nd day of January, 1948. More than likely this was done in order that the business might be carried on under the same license until January 1, 1948, as the defendant did take possession of and operate the business on the 24th day of December, 1947, and there is in the record an agreement dated the 23rd day of December, 1947 by which the plaintiff presumably employed the defendant “to manage, supervise, conduct and run as he may deem fit or proper” his business known as “Dartez Bar”, and as compensation the defendant was to be given all the profits accruing from the business during the term of his employment which was to "expire on January 1, 1948.

At the time of the execution of the sale of December 23, 1947 the evidence discloses that the defendant had a check of Joe Dore’s" for $3,000 but was unable to cash it on that day as it was on an out-of-town bank. The defendant, therefore, caused to be drawn in the notary’s office on the typewriter one check for $3,000 which is in evidence and made payáble to cash and signed by himself. The defendant further drew another check f.or $1,000 which was held by Mr. Broussard and which defendant admitted having given “to prove that he was going to Buy the property.” It is admitted that this check was worthless and was merely given as evidence of good faith •by the defendant. This check was later destroyed by Mr. Broussard upon instructions from .the plaintiff. Plaintiff testified that he told Mr. Broussard to destroy this check after he had received a $1,000 check dated February 21, 1948 which was good. While Mr. Broussard is not definite as to the time the plaintiff told him to destroy the check, he estimated it at several weeks or. about three weeks after the sale on December 23, 1947. In view of his indefiniteness as to the time, we believe the plaintiff’s statement to be correct.

It is further shown by the' record that the next day the local bank found that the check for $3,000 was good and the defendant had this deposited to his account and cashed the $3,000 check' which had been written on the typewriter in Mr. Brous-sard’s office. The defendant’s wife and the plaintiff’s wife were the ones who went to the bank and cashed this check, and the money was brought back to the saloon where it was paid to the plaintiff. Defendant and his wife testified that $1,000 more in cash was paid to the plaintiff by the defendant at the same time; that this $1,000 in cash represented the proceeds of the sale of rice by the defendant to Lloyd Simon. The plaintiff and his wife deny that the defendant paid any amount other than the $3,000 at that time, and, on the contrary, testified that a check for $1,000 dated February 21, 1948 and signed by the defendant, Ellic Meaux, was given to them in order to complete the payment of the $4,000 due as a consideration for the purchase of the contents of the saloon. The defendant contends that the check dated February 21, 1948 for $1,000 was given to the plaintiff and represented $600 rent for the year 1948 in advance and $400 which he claimed the plaintiff said he owed him. Thus, in order to reach a correct decision in this case it is necessary that the Court decide whether the $1,000 check was given to complete the consideration for 'the sale or as an advance for one year’s rent plus indebtedness due by the defendant to the plaintiff.

Counsel for defendant strenuously objected to any testimony to vary, or contradict the terms of the act of sale. No attack is being made upon the sale nor does plaintiff seek to change the amount of the consideration as stated therein, but merely to show that the consideration of $4,000 was not paid on the date set forth in the deed.

The objection was referred to the •merits by the trial court and in his excellent written reasons for judgment he overruled the objection and correctly considered the testimony and we adopt his reasons for so ruling, which are as follows:

“It is a well recognized doctrine in this-state that the real and true consideration for a sale may always be shown where a consideration is expressed, even though the consideration may be different from that expressed in the deed.”
“This was very clearly stated in Wainwright v. Gilham, (La.App.) 188 So. 434-436, wherein the court said:
“ 'Plaintiff argues that the rule of evidence invoked by defendant is inapplicable to the facts of this case for two reasons,viz.:
“ T. That a transfer of ownership of an automobile may be proven by parol evidence;
“ ‘2. That the expressed consideration in a contract, whether of sale or otherwise, when inaccurate or incorrect, may be broken down and the true consideration established by evidence other than written, without doing violence to the parol evidence rule.’
‘“(1) The correctness of the second of these propositions is no longer open to debate in this state. The same rule prevails generally throughout the country. If there is a real and genuine consideration for. the contract, it may be proved by any sort of evidence, even though such proof establishes . a consideration materially. different to that expressed in the written instrument. Morris v Monroe Sand & Gravel Co., 166 La. 656, 117 So. 763; Queensborough Land Co. v. Cazeaux, 136 La. 724, 739, 67 So. 641, L.R.A.1916B, 1201, Ann.Cas.1916D, 1248; Ruston Brick Works v. Heard, La.App. 177 So. 494.'
“This question-. arose in Succession of Rhodes, 164 La. 488, 114 So. 107, 109, and was disposed by, the court thus:
“.‘We find no sound objection to the admissibility of the parol evidence admitted in the’ case to show the various items which composed the $6,500. This additional sum is agreed upon by Brown and Mrs. Rhodes' in their written contract as to the purchase of the property.’
“ ‘The purpose of the testimonial proof was not to invalidate the written agreement between Brown- and Mrs. Rhodes, or the subsequent a'ct of sale made between the same parties, but was merely to show the true consideration for same, and was clearly admissible for that purpose. R.C.C. Act’1900; Loranger v. Citizens’ National Bank of Hammond, (No. 26291 on our docket). 162 La. 1054, 111 So. 418.’
“See, also, Green v. Louisiana Highway Commission et al. (La.App.) 13 So.2d 236; Morris v. Morris, (La.App.), 160 So. 134; Ryals v. Ryals, [La.App.], 199 So. 481.”

The plaintiff and his wife testified that the defendant had not paid anything on his rent but that he was indebted to the plaintiff on an open account in the sum of $343.48 and that he had paid on this amount $150 by check, cash $150, and cash $40,' paid‘in two installments of $20 each, and that he, the plaintiff, was indebted unto thé defendant for merchandise bought in the" sum of $19.60 which overpaid defendant’s amount $16.12, which the plaintiff had credited -on the Yent which he claimed defendant 'owed him-, leaving defendant owing plaintiff the amount sued for herein. Plaintiff claims that the check for $150, dated August 12, 1948, is the one given him oil -account. The- defendant, on the other hand, contends that this $150 check represented a loan made by him to the plaintiff and that plaintiff, further owed him $60.95 for merchandise. Hence the «conventional demand for $210.95 -plus the $750 damages, or a total of $960.95,

The defendant, having plead payment as a defense, admits the indebtedness and carries the burden of proving payment. See Alexander v. Paul, La.App., 18 So.2d 852; Louisiana Tractor & Machinery Co. v. Henry, La.App., 24 So.2d 188.

The' defendant and his wife testified that on December 23rd, the day of the sale, the defendant had $1,000 in his pocket, and that on the next day he added this amount to the $3,000 obtained by cashing a check, and paid the $4,000 consideration in full to 'the plaintiff. It is strange, if the defendant had $1,000 in cash in his pocket on the 23rd of December, that he did not give it to Mr. Broussard rather than a worthless check for $1,000 to show 'his good faith. Defendant also testified that this $1,000 cash which he had in his pocket came from the sale of rice made to Lloyd Simon, and produced Lloyd Simon as a witness in the case. The-trial court has excellently analyzed and correctly summed up the testimony of this witness and we, therefore, quote from his opinion: " * * * It is true that Mr. Lloyd Simon testified in behalf of defendant that he purchased some seed rice from defendant on December 5, 1947, for the price and sum of $980.00 cash. The court is satisfied that this witness is mistaken as to the exact date that he bought this rice! This young man’s testimony is to the effect that on the fifth day of December 1947 he bought seventy sacks of seed rice from defendant at $14.00 per" sack and paid him $980.00 in cash. He said that he had seen the defendant’s father in November for the rice and he sold him the rice and he, the witness, got the rice from the father’s house on December 5th; that the rice was hauled in defendant’s truck to Simon’s Warehouse to be carter disc. He was cross-examined very closely by plaintiff’s counsel with reference to the time that the. rice was delivered to Simon’s Warehouse and denied that the rice was delivered to Simon’s Warehouse on February 21, 1948. The Court at the time believing this testimony to be very important propounded the following questions to the witness:

“Q. Was the rice paid for the day it was delivered, Mr. Simon? A. That’s right, sir.
“Q. Was it delivered the same day that you bought it? A. When he had time to bring the rice me and my hired man helped another man haul the rice.
“Q. It was delivered to you the same day you bought it? A. The same day I paid him it was brought to the Simon Warehouse.
“Q. It was brought to the Simon Warehouse? A. Yes, sir.
“Q. After it was delivered in the Simon Warehouse, you paid him? A. Yes, sir,, in cash.
“Later during the trial this witness was recalled to the witness stand, and testified as follows:
“ ‘Recross Examination
“ ‘By Mr. Deshotels:
“ ‘Q. Mr. Simon, on your cross examination a while ago, you stated that the rice-had been delivered to Mr. S. P. Simon’s Warehouse on or about December 5, 1947.. Since that time, 'have you had an opportunity to refresh your memory? A. Yes,, sir.
“ ‘Q. Do you know whether or not the-rice was delivered on December 5, 1947? A-It was brought February 21, 1948.
“ ‘Redirect Examination
“ ‘By Mr. Dalferes:
“ ‘Q. But Mr. Simon, what I am interested in knowing, when did you pay Mr. Ellic Meaux the $980.00 which was the-sale price of the rice? A. I paid him December 5th.
“‘Q. Of 1947? A. 1947.’”
“It is inconceivable that this witness or any one else would pay the large sum of $980.00 to another for seed rice on December 5, 1947 without taking any receipt- or other evidence or acknowledgement and. wait until the twenty-first of February before obtaining the delivery of the property.. It is possible but n-ot probable.”
“I have come to the conclusion that the seed rice in question was bought, paid for and delivered on February 21, 1948. A circumstance which has assisted me in reaching this conclusion is the fact that the check for $1,000.00 which was offered and filed in evidence is dated February 21, 1948, the very day the rice was delivered at the warehouse, thus substantiating young .Simon’s testimony given in answer to the ■Court’s questions that the rice was deliv■ered in Simon’s Warehouse and then paid for by him.”
“Although the evidence shows that Mr. Alcide Meaux, the father of defendant was present and assisted in delivering the seed rice to young Simon, he was not called as a witness to testify. This is another circumstance to be taken into consideration in reaching a conclusion herein.”

On the other hand, plaintiff, besides the testimony of himself and his wife to substantiate his claim proved by the deputy sheriff Louis Trahan, who served the papers in- this suit upon the defendant, that the defendant at that time told the deputy that “he sold a combine and the next day he could pay this out. * * * After I got in the office I told Deshotels (attorney for plaintiff) that I 'had 'brought Meaux .in and Mr. Meaux didn’t tell Deshotels about the combine but he told me and I told Mr. Deshotels that Mr. Meaux said, the next day he could straighten this out, he could get his money from Crowley, that’s what the man told me. Mr. Deshotels in turn asked ‘was that right,’ and Mr. Meaux says - ‘yes, sir/ ”

The defendant attempted to deny this statement by saying that if plaintiff could prove .he owed it he would pay it. We are convinced that the defendant did admit the debt in the manner stated by the. Deputy .Sheriff. This belief is strengthened by -reason of the fact that the defendant was allowed to keep his business open three days which was to .give 'him time to straighten the matter out as he said he would. Certainly, there would have been -no other reason for counsel for plaintiff to agree to allow the defendant to continue ¡to operate his business.

Furthermore, plaintiff has proven by disinterested witnesses that on numerous occasions throughout the- entire year 1948 he 'hád asked the defendant to pay his rent, and these witnesses never heard the defendant deny owing the rent. Plaintiff also produced a witness, Willy Guidry, who testified that he was a customer of the defendant and that bn a visit to the saloon he heard the" defendant make the remark that he had sent' $150 to Mrs. June Daftez, wife' of plaintiff, which is corroborative of the testimony of plaintiff and his wife, rathe,r than defendant’s contention that he had- loaned the plaintiff $150. There is no proof in the record other than the defendant and his wife that they had loaned the plaintiff $150.

Taking all the testimony offered by the defendant', he had certainly failed to prove payment, whereas we are of the opinion that the plaintiff has proven by a preponderance of the testimony that he is entitled to judgment as prayed for..

It is ordered that the judgment of the District Court be affirmed.

ROBERT D. JONES, J., sitting ad hoc.


author: CHASEZ, Judge ad hoc.

text:
    Succession of VALDEZ. Succession of BIAMCHI.
    Nos. 19353, 19354.
    Court of Appeal of Louisiana. Orleans.
    Jan. 31, 1950.

      Connolly & Simoneaux, New Orleans, for Mrs.. Alvina B. Bright and Bernard J. Bremerman, Jr., plaintiffs and appellants,
    prowen & Vfosca, and Arthur C. Reuter, New Orleans, for Mrs. Palmyro Bianchi Füidcmg and Charles Bianchi, defendants ajl¿ appellees.
   CHASEZ, Judge ad hoc.

The issue presented by this litigation is whether certain property located in Square 778, Third District of New Orleans, purchased in the name of Mrs. Anna Valdez Bremerman Bianchi during her marriage with Charles Bianchi, belonged to the wife’s separate estate or to the community which existed between the spouses.

Charles Bianchi and Mrs. Anna Valdez Bremerman Bianchi were married in the year 1911 and lived together until the death of the former. Charles Bianchi had two children from a previous marriage, viz., Charles A. Bianchi and Mrs. Palmyro Bianchi Furlong. Mrs. Anna Valdez Bremerman Bianchi also had two children from a previous marriage, viz., Mrs. Al-vina Bremerman Gregory Bright and Bernard J. Bremerman, Jr.

No children were born of the marriage between Mr. and Mrs. Bianchi.

The property involved was acquired on March 1, 1933, for $2,600 on terms of all credit, from the Union Homestead Association, per act passed before W. Morgan Gur-ley, Notary Public. Title was taken in the name of Mrs. Anna Valdez Bremerman Bianchi without her husband’s intervention, and the act contained no declaration that she was purchasing in her paraphernal right or for her separate estate.

Following the death of Charles Bianchi on September 4,' 1936, his succession was opened in the Civil District Court for the Parish of Orleans. On September 16, 1936, a document entirely written dated and signed by Charles Bianchi, bearing date of March 4, 1935, was presented to the court as. his last will and testament, and was probated and ordered executed. No further proceedings were taken until October 30, 1947, when Charles A. Bianchi filed an application to be appointed as administrator of his deceased father’s estate, and prayed for the taking of an inventory. Pursuant to an order of court, the inventory was taken on November 24, 1947, in which the property in question was listed, described, and appraised at $3,500. Ultimately Charles A. Bianchi was appointed administrator of his father’s estate.

The wife, Mrs. Anna Valdez Bremerman Bianchi, died intestate on February 6, 1947, and her succession was duly opened in the Civil District Court for the Parish of Orleans by her two children, who prayed for recognition as her sole heirs at law and for possession of the property involved in this appeal. By a supplemental petition filed the same day, Charles A. Bianchi and Mrs. Furlong were made defendants and duly cited. Judgment was prayed for against defendants decreeing plaintiffs to be the sole owners of the property. By a second supplemental and amended petition, the plaintiffs prayed that in the event the property was- adjudged to belong to the community which existed between Charles Bianchi and Mrs. Anna Valdez Bremerman Bianchi, then that they have judgment against Charles A. Bianchi and Mrs. Furr long for $2,600, representing the purchase price of the property, which they claim Mrs. Bianchi paid out of her separate and para-phernal funds.

Answering, the defendants averred that the property belonged to the community of acquets and gains, and they prayed for a judgment decreeing them to be the owners in indivisión of a one-half interest therein as children and sole heirs of their father. They denied that the community estate was indebted unto Mrs. Bianchi’s separate estate or to plaintiffs.

Inasmuch as the two successions involved a dispute over the same property, the court ordered them consolidated and the; ownership claims therein tried together.

After a trial, the district judge concluded, as- his assigned written reasons disclose, that the evidence was insufficient to support the allegations of plaintiffs. Accordingly, he rendered judgment decreeing the property to belong to the community, and recognized plaintiffs as being 'entitled- to a one-half interest therein and the defendants the other one-half. The trial judge did not pass on the alternative claim for $2,600. Plaintiffs appealed suspensively from the judgment to the Supreme Court, which held that it had no jurisdiction of the matter, and transferred the appeal to this court pursuant to Act No-. 19 of 1912. See 215 La. 791, 41 So.2d 682.

Whilst the matter was pending in the Supreme Court, plaintififs-appellants, by way of formal exception, pleaded that whatever claim defendants had to the property was barred by the prescription of five years. The exception is grounded on the theory that, whereas Charles A. Bianchi and Mrs. Furlong made no attack upon their father’s' will, and remained silent for more than five years after it was probated, their claim to an interest in the property is extinguished by virtue of the prescription established by R.C.C. art. 3542, which provides :

“The following actions are prescribed by five years:
“That for the nullity or rescission of' contracts, testaments or other acts.
“That for the reduction of excessive-donations. * * * ”

That part of Charles Bianchi’s “will” so-far as is pertinent here reads thus:

“New Orleans March 4th 1935.
“To- whom it May Concern.
“I Charles Bianchi, of sound mind and' from my own free will, do hereby assert and acknowledge, that whatever Moveable or Immovable Property which now exist or shall exist at the time of my death is-solely the property of my wife Mrs. Anna Valdez Bremerman Bianchi having been acquired by her with her own Paraphernal Funds from the residues of her first husband'Bernard Bremerman’s estate.
“Although the records will show that, the .property in question was bought in and during community, which was for reasons better known to myself.
'“It is my wish that my wife’s Interest will not and shall not be antagonized by-anyone. * '* *”

A mere reading of the document probated as the last will and testament of Charles Bianchi at once discloses that he made no testamentary disposition whatever of the property acquired during the regime of the •community, nor was any direction of disposition made. Bianchi merely stated that whatever property “which now exist(s)' or shall exist” at the time of his death is solely the property of his wife acquired by her with her own paraphernal funds received from the estate of Bernhardt Bremerman, her first husband, and that it was his wish that her interest would not be “antagonized.”

It is contended on behalf of appellants that even if the property should, be found to have belonged to the community, Charles Bianchi indicated the intention of making a donation mortis causa of his interest to Mrs. Bianchi, and that if his children and heirs, the defendants, were aggrieved thereby, they should have instituted an action for a reduction of the donation within the five years, counting from the date of the order of probate. Counsel cite Succession of Dancie, 191 La. 518, 186 So. 14; and Draper v. Van Leer, 197 La. 259, 1 So.2d .513.

This contention is exceedingly farfetched. To' start the tolling of prescription against the right of a forced heir to annul a will or to reduce a donation infringing upon his legitimes, ex necessitate legis, there must be present as a foundation for the prescription a last will and testament in which the testator has made disposition of his property. Not only did ’Charles Bianchi not make a disposition of the property, but he disavowed ownership of the property and disclaimed interest therein.

The Revised Civil Code, in article 1571, defines a testament as: “* * * the act of last will clothed with certain-solemnities, by which the testator disposes of his property, either universally or by universal -title, or by particular title.”

In Succession of Ledet, 170 La. 449, 128 So. 273, 274, the following language appears: “ * * * any document entirely written, dated, and signed by the testator, and purporting to express his last wishes touching the disposition to be made of his estate after his death, is a will by whatever name he may choose to call it. * * * ”

Appellants’ counsel advance the further contention that Mrs. Anna Valdez Bremer-man Bianchi acquired whatever rights the children of Charles Bianchi had by virtue of ten, years prescription acquirenda causa. They take the position that the order of probate is tantamount to a deed translative of title, was acquired in good faith, and was followed by complete physical and adverse possession of the property by Mrs. Bianchi. Counsel direct our attention to evidence in the record to the effect that Mrs. Bianchi continued to occupy the property until her death, and that thereafter her children, the plaintiffs, physically possessed the property to the full and complete knowledge of defendants. Plaintiffs cannot succeed on this plea.

To acquire the ownership of immovables by this species of prescription, R.C.C. art. 3479 requires the concurrence of four conditions :

“1. Good faith on the part of the possessor.
“2. A title which shall be legal, and sufficient to transfer the property.
“3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“4. And finally an object which may be acquired by prescription.”

It appears at a glance that two of the required elements are lacking. Mrs. Bianchi, as we have already said, derived no title from her husband sufficient to transfer the property to her. And even if it be conceded that Mrs. Bianchi was instituted as legatee, she was'in legal bad faith. If 'in truth the property belonged to the community, she could not 'have been ignorant of- the existence of Charles Bianchi’s two children, and of their interest in the property. If she believed that the order probating the last will and testament divested her stepchildren of their rights, this we think was an error as to the law. It is only in instances where- there is error as "to facts, and not as to the law, where legal good faith is made the basis of the prescription of ten years acquirenda causa.

Revised Civil 'Code, art; 1846(3), provides :" “3. Error of law can never he alleged as the means of acquiring, though it may ¡be invoked as the means of preventing loss or of recovering what has been given or paid under such error. The error, under which a possessor may be as to the legality (illegality) of his title,' shall not give him a right' to prescribe under it.”

See Roberson, et. al. v. Reed et al., La.App., 190 So. 153, and cases therein cited.

The pleas of prescription are overruled.

The next point to be considered is the plea of estoppel. Plaintiffs allege that Charles A. Bianchi, by having signed a certain instrument dated May,' 1935, effectually estopped ’himself from ever claiming his interest in the property, if any be had. The said instrument, which was annexed to and made part of the petition, was offered in evidence upon the trial of the case. It reads as follows:

“No. 218-384 Civil District Court Div. - Succession of Charles Bianchi
“We,-and-the only children of the late Charles Bianchi, do hereby declare and acknowledge that we have no interest in the property standing in the name of Mrs. Anna Valdez, widow, by first marriage of Bernard Bremmerman and widow by second marriage of Charles Bianchi, and particularly the property described as:
(Description of Property Omitted from this Opinion.)
“and that all of said property is the separate property of the said Mrs. Anna Valdez Bremmerman Bianchi and. we concur in the will of the said Charles Bianchi dated March 4, 1935, probated in these proceedings, * * *
“Signed by me this fourth of March in the year of our Lord A.D. 1935.'
(Signed) Chas. Bianchi.
“Signed in the presence, of the two undersigned witnesses, at New Orleans, Louisiana; this — day. of May, 1937.
“Witnesses:
“(Signed) Geo. A. Wille
“(Sighed) C. A. Bianchi.”

Charles A. Bianchi explained the circumstances' under which he signed. His testimony in relation thereto is:

“Q. Mr. Bianchi, will you please inform the court of your recollection of the circumstances under which you signed that document? A. I will. I was working on board the ship and my stepmother came down. I was aboard the ship. They had somebody come aboard and state that my mother was on the dock to see me, so it just took me off my feet. I said ‘My mother is dead.’ Well, they said, ‘there’s a lady on the dock that claims she’s your mother.’ So naturally I got curious and I came on out there and saw her and recognized her.
“Q. Who was she? A. Mrs. Anna Valdez Bianchi, my stepmother. She came .to me and told me she needed the money: .the houses needed repairing and needed to malee a loan and that my father hadn’t left her any money and she wanted some money to repair the houses — in other words, in the form of a sort of loan. Well, I was a rather busy man at the time and it took me off the job and I didn’t take much time reading this document.
* * * * * *
.“A. No, sir. I really didn’t understand the document when I signed it, as a matter of fact; and had I understood it the way it’s read to me now I wouldn’t have never signed it because I wasn’t aware of the fact or didn’t know anything about our father’s finances. We never did go into those things at all. I was a man at sea and was away most of the time and didn’t familiarize" myself with any of his personal or financial affairs or any of his -business dealings.”

The plea of estoppel can avail plaintiffs nothing. In the absence of contradicting evidence, Charles A. Bianchi’s testimony that he was Unfamiliar with his father’s personal and financial affairs, and would not have signed had he been aware of the facts, must he taken as true. In the second place, it is not shown that- Mrs. Bianc-hi or her children were prejudiced’to any extent.

The plea of estoppel cannot he maintained where it appears that the party against whom the plea is directed was ignorant of the true facts relating to the matter or forming the subject of the plea. Reed v. Eureka Homestead Society, La.App., 143 So. 891; Succession of Drysdale, 130 La. 167, 57 So. 789; Carroll et al. v. Cockerham et al., 38 La.Ann. 813; Watkins v. Cawthon, 33 La.Ann. 1194.

Likewise, one who acts in ignorance of his rights cannot he estopped. Wells et al. v. Blackman, 121 La. 394, 46 So. 437; Gallagher v. Conner, 138 La. 633, 70 So. 539.

The doctrine of estoppel is applicable only to ignorance of matters of fact, and not acknowledgments or statements of propositions of law. Straus v. City of New Orleans, 166 La. 1035, 118 So. 125.

Nor can a person be estopped by his declarations, even if of a judicial character, which have neither deceived nor damaged anyone. Tyler v. Walt, 184 La. 659; 167 So. 182; Farley v. Frost-Johnson Lumber Co., 133 La. 498, 63 So. 122, L.R. A.1915A, 200, Ann.Cas.l915C, 717.

In Succession of Harris, 39 La.Ann. 443, 2 So. 39, 41, 4 Am.St.Rep. 269, the Supreme Court quoted with approval the following observation made in Stoekmeyer v. Oertling, 38 La.Ann. 100: “ * * * the doctrine of estoppel, however apparently emphatic, is full of exceptions, which vary according to circumstances, and was never designed to apply to a case like the instant one, in which the declaration made has led no one astray, and occasioned damages to nobody.’ * * * ”

One who, in ignorance of his rights, acted as an expert or appraiser in a partition proceeding in which the property was divided among others,’ is not estopped from claiming that such property belonged to him. Wells et al. v. Blackman, supra.

In Succession of Coleman, 13 La.App. 600, 128 So. 44, we held that the recognition of a claimant by the heirs as granddaughter of deceased did not estop the heirs from denying her relationship to decedent, no -prejudice resulting.-

It is a well settled rule that a husband who has been a party to an act of purchase in which it is declared that the price belonged to the wife in..her para-phernal right, and that the property is to be her paraphernal property,, cannot after-wards contradict bis own .solemn assertions and attack the- title of -his wife. His legatees and simple héirs claiming through him, standing in his shoes, are bound like him and equally debarred. Only creditors whose claims arose before such purchase, and forced heirs, are excepted from the rule. Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676; Pfister v. Casso et al., 161 La. 940, 109 So. 770.

In the earlier case of Kerwin v. Hibernia Insurance Co., 35 La.Ann. 33, it was held that forced heirs are excepted “only to the extent of their legitime and for the purpose of protecting the same. Outside of the legitime, they stand upon precisely the same footing with collateral heirs or universal legatees, having no rights against the decedént, but only rights derived from him and which he himself, if living might assert.”

Counsel for appellants argue that under the holding in the Kerwin case,- even though we determine that the property belonged to the community, the rights of Charles Bianchi’s children cannot exceed the claim for their legitime.

The above quoted language from the Kerwin case could not serve as precedent even if the acknowledgment of Charles Bianchi should be given the same effect as if it had been made originally in Mrs. Bianchi’s act of purchase, which point need not be discussed nor decided. -

In 1884 (the year after the Kerwin case was decided), by Act No. 5, the Legislature amended R.C.C. árt 2239, extending to forced heirs all the rights of creditors to attack simulated contracts of those from whom they inherit, specifically adding that the attack by such heirs is not limited to their legitime.

The article now reads: “Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those .from whom they inherit, and shall not be restricted to the legitimate (legitime).”

The right of forced heirs to establish by parol the simulation of acts of conveyance executed by those from whom they claim to inherit extends, according to Act No. 5 of 1884, to the entire estate, and the restriction of such right to the legitime is removed. Cole et al. v. Cole et al., 39 La.Ann. 878, 2 So. 794. See also Spencer et al. v. Lewis et al., 39 La.Ann. 316, 1 So. 671; Bauman et al. v. Pennywell, 164 La. 888, 114 So. 723.

In Westmore v. Harz, 111 La. 305, 35 So. 578, 580, the forced heirs of the husband instituted suit to recover their legitime and whatever further rights they had, pleading that declarations in the deed, that the wife had bought the property with her para-phernal funds, were not true. The property was ordered returned to the mass of the succession. The Court said:

“This brings us to a consideration of the amendment of article 2239 of the Civil Code, which reads: ‘But forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit and shall not be restricted to the legitime.’
“Prior to the date of this law, forced heirs had the right, to the extent of their legitime, to have simulated contracts decreed void, and in an action to that end they could introduce parol testimony. The amendment quoted enlarged the remedy and accorded an additional right. Forced heirs are not, since the passage of the amendment, restricted to the legitime. 4! * *

On rehearing, the Court said: “ * * * By reason of this relationship to him, they fall under the designation of his ‘forced heirs.’ As to parties holding such relations to a deceased person, the estoppel which would have bound him has been released by the provisions of Act No. 5, p. 12, of 1884. So far as they are concerned, matters are thrown open to examination as to the real facts of the case, and the rights of parties are not made to rest upon the statements of the father. These rights are not necessarily rights affecting the legitime. * * * ”

We now turn to a consideration of the focal point in the case. Does the property belong to the community?

The fact that Charles Bianchi made a declaration to the effect that the property was acquired with paraphernal funds is immaterial. The property having been acquired during the existence of the community, it is presumed to be community property. R.C.C. arts. 2402 and 2405 provide :

“2402. This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of 'both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. * * * ”
“2405. At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.”

In Houghton v. Hall et al., 177 La. 237, 148 So. 37, 39 is found the following expression:

“The wife, and those claiming through or from her, to overcome the presumption in favor of the community, must establish three crucial facts, namely:
“(1) The paraphernality of the funds: (2) the administration thereof separately and apart from her husband; and (3) investment by her. Stauffer, Macready & Company v. Morgan, 39 La.Ann. 632, 2 So. 98.”

See also Succession of Howell, 177 La. 276, 148 So. 48; Lotz et al. v. Citizens Bank & Trust Company et al., La.App., 17 So.2d 463; and Otis et al. v. Texas Company et al., 153 La. 384, 96 So. 1.

In the case of property which is acquired by the wife on terms of credit, as is the case here, the burden placed on the wife or those claiming under her becomes even greater.-

In Lotz et al. v. Citizens Bank & Trust Company et al., supra, our brothers of the First Circuit, after citing Fortier v. Barry, 111 La. 776, 35 So. 900, as authority, held that it was incumbent upon a wife attempting to show that the property was not community to establish by proof outside the recitals of the act of sale, (1) the possession of some paraphernal funds under her administration and available for investment, (2) that the cash portion of the purchase price bore such a relation to the whole as to make the property purchased sufficient security for the credit portion, and (3) that her paraphernal property and revenues were such as to enable her to make the purchase with reasonable expectation of meeting the deferred payments. The court continued by saying [17 So.2d 466]: “This case has particular bearing on the present case in which no cash whatever was given on the purchase price and thus, it would seem, a still greater burden is placed on those so claiming, to prove that it was the wife’s separate property.”

The evidence in the case shows that by judgment of the Civil District Court for the Parish of Orleari's, dated December 12, 1910, Mrs. Bianchi, who was then Mrs. Bremerman, was sent and placed into possession of her undivided -one-half community interest in the property left by her first husband, Bernhardt Bremerman: The inventory in the proceedings discloses that her undivided .interest in the community’ was appraised at $2,947.5.0. One piece of real estate was listed among the assets.

In April or May, 1927 (after her marriage to Charles Bianchi), the real estate was sold, and the evidence tends to show that Mrs. Bianchi received $1,200 in cash, and the sum of $1,133.33 during each of the next three years as deferred payments on the purchase price.

The children of Mrs. Bianchi testified that beginning in 1920, and up until her death, they contributed to their mother each month, together, the sum of $100.

The property involved herein, as we have already remarked, was purchased by Mrs. Bianchi in the year. 1933. If she had approximately $4,600 derived from the sale of the property acquired from her first husband’s succession, and had been receiving $100 -per month from her children for thirteen years, why, we ask, did Mrs. Bianchi find it necessary to buy the property in contest on terms of all credit? At least six years elapsed between the time of the sale of Mrs. Bianchi’s property and her purchase from the Union Homestead Association. Not only has there been a complete failure to show that the wife had separate funds and did actually invest them in the property, but a most striking fact appears which would indicate that she actually had none.

Mrs. Bianchi became delinquent in payments on the mortgage held by the Union Homestead - Association, and, on July 25, 1934, she made a new loan on one of the parcels of property involved here, from the Home Owners Loan Corporation, in order to pay off the mortgage held by the Union Homestead Association; both Mrs. Bianchi and Charles Bianchi signed the new mortgage and the. note evidencing it. The inescapable inference to be drawn from this is that at the time Mrs. Bianchi possessed no paraphernal or separate funds. .

The plaintiffs have, fallen far short of making the requisite proof. Assuming that Mrs. Bianchi possessed paraphernal funds, qr that such funds were available to her, such facts in themselves are insufficient to overcome the presumption that the property belonged to the community.

In the case of Shaw v. Hill, 20 La.App. 531, 96 Am.Dec. 420, the Supreme Court had before it a case in which it was shown that the wife had received funds in cash (gold) in 1853 for the specific purpose of buying the property. She did not acquire it until sixteen months afterward. In rejecting her. claim that the property was paraphernal, the Court said: “There is no positive proof that she used the gold, the identical funds, presented to her by Rollins in the purchase of the property.”

We now advert to the alternative demand of plaintiffs for $2,600. The trial judge commented thereon as follows: “The claim of plaintiffs to b'e recognized as creditors in the sum of $2,600.00 must likewise be rejected for the reason that the evidence is totally insufficient to support such claim.”

The lower court, although reaching such conclusion, made no mention of this claim in the judgment. The case was fully developed below, and this being so we believe that we are vested with the power and authority to pass upon the alternative demand, and to render such judgment as should have been rendered disposing of all questions and issues raised. See Allan Ware Pontiac, Inc., v. First National Bank, La.App., 2 So.2d 76.

The plaintiffs have not shown that any payments made to the Union Homestead Association or to the Home Owners’ Loan Corporation were from Mrs. Bianchi’s paraphernal funds, and consequently there is no merit in the demand for $2,600, and accordingly it must be dismissed.

The judgment recognized Mrs. Bright and Bernard J. Bremerman' as creditors of their mother’s succession to the extent of $280 incurred in the burial of Mrs. Bianchi. We are at a complete loss to understand this, as there is nothing whatever in the pleadings showing that any such claim was advanced. Counsel for appellants made no mention or complaint of this feature of the judgment, either in brief or in argument.

But strangely enough, appellees have answered the appeal praying that the judgment be. reversed insofar as the above mentioned part thereof is concerned. The record does not disclose that the children of Charles Bianchi have any interest whatever in Mrs. Bianchi’s succession, nor have they shown how they are aggrieved by the judgment. The prayer for reversal must, therefore, be denied.

The judgment does not assess liability for court costs of the proceedings, and in.their answer to the appeal appellees ask that the judgment be amended so as to provide that the costs are to be paid by plaintiffs-appellants. The costs shall be paid by the parties cast. C.P. art. 549.

It is ordered, adjudged, and decreed that the judgment appealed from be amended so as to reflect that the alternative demand of plaintiffs be dismissed, and that all costs are to be paid by them, and as thus amended, and in all other respects, it is affirmed.

Amended and affirmed.

JANVIER, J., takes no part.