text:
    Earlene Netherland WILEY v. Charles William WILEY.
    No. 16535-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Kidd & Kidd, by Paul Henry Kidd, Jr., Monroe, for appellant.
    North Louisiana Legal Assistance Corp., by David A. Titman, Monroe, for appellee.
    Before PRICE, JASPER E. JONES, and NORRIS, JJ.
   PRICE, Judge.

Defendant, Charles Wiley, appeals the judgment of the trial Court awarding sole custody of the minor child, John William Wiley, to the plaintiff, Earlene Netherland Wiley. We affirm for the following reasons.

The plaintiff and the defendant were married on April 14, 1977 and the child, John William Wiley, was born on February 2, 1978. On August 29, 1983, plaintiff filed for a divorce on the grounds of living separate and apart in excess of one year, alleging that the parties had physically separated on November 19, 1981. Plaintiff requested sole custody of the child and that the defendant not be granted any visitation rights due to defendant’s “violent tendencies.” Defendant reconvened seeking sole custody of the minor.

At the trial, plaintiff testified that the defendant had an uncontrollable temper and had physically abused the child beginning when the child was an infant. Plaintiff related several abusive episodes to the court particularly the defendant beating the child with a metal welding rod. Plaintiff had physical custody of the child and the defendant had not seen the child for approximately two years. When asked about the defendant’s relationship with the child, plaintiff stated that the child did not wish to see his father because the defendant had hurt him. Plaintiff testified that she was afraid that the defendant would lose his temper and harm the child if he was granted visitation rights. The plaintiff has been living with her sister at an undisclosed location and defendant has only been allowed to visit with the child at a police station.

Plaintiff did not produce any' medical evidence as to child abuse but testified that in routine examination, a physician had noticed the child’s bruises and had questioned her about them. Plaintiff did offer one witness who testified that she had observed the defendant discipline the child rather harshly on one occasion. When asked about the lack of corroborating witnesses, plaintiff testified that the defendant did not generally abuse her or the child in front of other people and she was too afraid of her husband to press charges.

Plaintiff and her sister testified that the child now lived in a stable, loving environment. The child is doing well in school and attends church. The child lacks no necessities or material needs such as clothing, balanced meals and medical care. The home is located in a suitable neighborhood.

The record established that the defendant had so severely beaten the plaintiff that she required total hip replacement. As a result of this, plaintiff is physically impaired and has difficulty in finding employment. This incident resulted in defendant’s conviction of second degree battery with a three year suspended sentence.

Defendant testified that he had never harmed the child in any way and offered several witnesses, including his daughter from a previous marriage, who testified that the defendant was a loving father. The witnesses generally testified that the defendant was good with children and not an abusive disciplinarian with an uncontrollable temper. Defendant’s sister, Wilma Lassiter, testified that she had spent a great deal of time with the family and had never observed any signs that the child was abused. Defendant admitted that he had severely injured his wife but stated it was an accident. He testified that he was angry with plaintiffs adultery and she had given a valuable air compressor to one of her male friends.

Although each party alleged the other’s infidelity, much of the trial centered upon the plaintiff’s conduct. Plaintiff testified that she had never committed adultery. However, defendant produced three witnesses, including the defendant’s nephew, who testified that they had sexual intercourse with the plaintiff during her marriage to the defendant. The testimony indicated that when the adulterous acts occurred, the child was in close proximity in the house or was asleep in the same bedroom. Several witnesses testified that the plaintiff had smoked marijuana in front of the child.

Plaintiff testified that she had voluntarily committed herself to Pineville for a short period of time for treatment of a phobia. However, defendant inferred it was actually for the treatment of nymphomania.

Defendant attempted to introduce into evidence the divorce judgment from plaintiff’s previous marriage. The divorce was granted on the grounds of plaintiff’s adultery and the custody of the child of that marriage was awarded to the father. The court ruled that the judgment was inadmissible.

Noting that the testimony as to child abuse may have been exaggerated, the trial court nevertheless found that joint custody was not in the best interests of the child. Considering the past relationship between the parties and defendant’s severe attack upon plaintiff, the court found joint custody would serve only to foster continued wrangling and disagreement between the parties.

The court granted the divorce and awarded custody of the minor to the plaintiff with visitation rights as follows:

(b) During the month of February 1984 Charles Wiley will be able to exercise visitation rights with the minor from 9:00 A.M. until 5:00 P.M. on alternating Saturdays not more than twice in February. Seven days notice must be given to Earline Wiley by Charles Wiley of the Saturday of visitation;
(c) During the month of March 1984 Charles Wiley will be able to exercise visitation rights with the minor from 5:00 P.M. Friday until 5:00 P.M. Saturday on alternating weekends not to exceed two weekends in March of 1984; seven days notice must be given also;
(d) During the month of April 1984, and thereafter, Charles Wiley will be able to exercise visitation rights with the minor from 5:00 P.M. Friday until 5:00 P.M. Sunday, on two alternating weekends of each month; again, Charles Wiley must give Earline Wiley seven days notice of which weekends he intends to exercise visitation rights;
(e) The minor child will always be with the mother on Mother’s Day;
(f) The minor child will always be with the father on Father’s Day;
(g) Easter holiday (from 5:00 P.M. on the close of school before, until 5:00 P.M. of the day before school opens) will be spent with the mother on odd numbered years and the father on even number years;
(h) Thanksgiving (from 5:00 P.M. on the day school closes before, until 5:00 P.M. on the day before school opens) will be spent with the mother on even numbered years and the father on odd numbered years;
(i) Christmas will be divided into two holidays: (A) from 5:00 P.M. on the day school closes before Christmas until noon Christmas Day; (B) from noon Christmas Day until 5:00 P.M. on the day before school resumes after Christmas; the first Christmas holiday will be spent with the mother on even numbered years and the father on odd numbered years; the second Christmas holiday will be spent with the mother on odd numbered years and the father on even numbered years;
(j) The child will spend his birthday with his father on odd numbered years and his mother on even numbered years. The birthday visitation will be from 5:00 P.M. February 1st until 5:00 P.M. February 2nd.

Plaintiff was awarded $200.00 per month child support.

On appeal, defendant urges the following assignments of error:

(1) The trial court erred in refusing to consider plaintiff’s prior divorce judgment after plaintiff denied ever committing adultery and when plaintiffs adultery in the presence of the child was at issue.

(2) The trial court erred in awarding plaintiff sole custody of the minor child when defendant should have been awarded sole or joint custody or at the least, more liberal visitation rights.

Plaintiff argues that the defendant’s appeal is untimely.

It is necessary to first consider plaintiff’s argument that the defendant’s appeal is untimely and should therefore be dismissed. Plaintiff notes that pursuant to La.C.C.P. Arts. 3942 and 3943, an appeal from a judgment awarding custody must be taken within thirty days from the applicable date provided in La.C.C.P. Art. 2087(l)-(3). The article provides in pertinent part that the appeal must be taken within the stipulated time after the expiration of the delay for a new trial, as provided by La.C.C.P. Art. 1974, if no application has been timely filed. La.C.C.P. Art. 1974 provides as follows:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

As defendant did not file a motion for a new trial, plaintiff alleges the appeal is untimely as it was filed on March 13, 1984, more than thirty-seven days after the trial court judgment was signed and filed on February 2, 1984.

An examination of the pertinent articles in conjunction with each other reveals that the defendant’s appeal is timely. It appears that no notice of judgment was required under La.C.C.P. Art. 1913, therefore the delay for applying for a new trial commenced to run after the judgment was signed and filed on February 2, 1984. The delay period does not include legal holidays in accordance with La.C.C.P. Art. 5059 as they are expressly excluded by the article. L.S.A.-R.S. 1:55 provides in pertinent part that Saturdays and Sundays as well as enumerated holidays shall be considered as legal holidays for purposes of computation of time under La.C.C.P. 5059. Therefore, in counting the seven day delay period, Saturdays and Sundays are legal holidays and are not counted. Nat. American Bank of New Orleans v. Purvis, 407 So.2d 753 (La.App. 1st Cir.1981).

Using these rules in calculating the applicable delay period in the instant case, it is clear that the defendant’s appeal was timely as Saturdays and Sundays are excluded from the seven day period for application for a new trial. In other words, the delay period for a timely appeal in the instant case is longer than thirty-seven days after the judgment was signed as weekend days are not counted in the initial seven day delay period for application for a new trial.

ASSIGNMENT OF ERROR NO. 1

At the trial on this matter, the plaintiff testified that she had never committed adultery. Defendant sought to introduce as evidence a judgment of divorce from plaintiffs previous marriage on the grounds of plaintiff’s adultery. Custody of the child from that marriage was awarded to the father. The court ruled that the judgment was inadmissible.

On appeal, defendant argues that the judgment was admissible for the following reasons:

1. To impeach plaintiffs testimony that she had not committed adultery;

2. As evidence to corroborate defendant’s allegations of adultery; and

8. As evidence concerning plaintiff’s fitness as a mother regarding other children.

The judgment of divorce was rendered on October 7, 1975 against the plaintiff on the grounds of adultery. Even if the judgment was admissible evidence in the instant proceeding, it would have little probative value. The judgment contains no facts as to the circumstances surrounding the adultery or why custody of the child was granted to the father. The facts underlying the judgment occurred at least nine years ago, too remote in time to have relevance in this case. The adultery may have been a single isolated incident far removed from and outside of the presence of the child. Furthermore, the custody of the child may not have been a contested issue but rather stipulated by the parties. It would be speculative to infer from the face of the judgment in the record that the adulterous conduct was committed in the presence of the child or that the plaintiff was adjudged unfit.

While the introduction of the judgment of divorce may have been valid to impeach plaintiff’s testimony, it certainly would not act to corroborate defendant’s allegations of adultery. It does not show a pattern or predisposition to such acts. Further, as noted earlier, the judgment does not act as evidence that plaintiff was previously adjudged an unfit mother. Thus, the error on the part of the trial court, if any, in refusing admit the judgment into evidence was harmless error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in awarding plaintiff sole custody when the defendant should have been awarded sole or joint custody or alternatively, more liberal visitation rights.

Defendant contends that the evidence does not show that he ever abused the child and the severe injury to his wife was mitigated by her rampant adultery. Defendant essentially contends that the evidence proves that plaintiff committed adultery and used drugs in the presence of the child and therefore, is unfit to have sole custody of the minor. Plaintiff denies any moral unfitness and argues that even if she was found to have committed adultery, there was no proof that these acts were committed in front of the child and it does not affect her ability to be a good mother to the child.

C.C. Art. 146 provides that there is a rebuttable presumption that joint custody is in the best interests of the child. However, this presumption may be rebutted by showing that it is not in the best interests of the child after the court considers the evidence introduced with respect to the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

It is well-settled that great weight is to be accorded to the discretion of the trial court in custody matters and the judgment will not be disturbed absent a finding of abuse of such discretion. Williams v. Williams, 431 So.2d 856 (La.App. 2d Cir.1983), Howes v. Howes 388 So.2d 1182 (La.App. 4th Cir.1980), Burch v. Burch, 398 So.2d 84 (La.App.3d Cir.1981) and Montgomery v. Montgomery, 383 So.2d 1384 (La.App. 4th Cir.1980). Great deference is accorded by the appellate courts to the trial court’s assessment of the credibility of witnesses based upon that court’s personal observation of the witnesses and evaluation of their testimony. The trial court has a better position from which to evaluate the best interests of the children from a total overview of the conduct and character of the parties and the children and of community standards. Williams v. Williams, supra.

It is clear from the record in the instant case that the trial court did not abuse its discretion in awarding plaintiff sole custody of the child with visitation rights in favor of the defendant. The evidence demonstrates that plaintiff has a warm, loving relationship with the child and provides a stable environment lacking no material needs. The child attends church regularly and appears to be doing well in school. While the court noted that plaintiff’s allegations as to child abuse may have been exaggerated, it is quite apparent from the record that the defendant does have a violent temper as evidenced by the injuries he inflicted upon his wife.

Examining defendant’s claim that plaintiff is morally unfit, it is well-settled that infidelity per se does not result in a parent being denied custody. Howes v. Howes, supra. Rather, it is necessary to examine whether such behavior was damaging to the child. This determination involves the evaluation of several factors:

(1) Is the child aware of the illicit relationship?
(2) Has sex play occurred in the presence of the child?
(3) Was the sexual misconduct notorious, bringing embarrassment to the child?
(4) What effect has this conduct had on the family home life?

Williams v. Williams, supra, at p. 858 and citation therein.

While there was some testimony that the plaintiff had committed adultery in the presence of the child, at one point the court noted that the testimony was so bizarre that it was unbelievable. The court was able to hear and evaluate all of the testimony and to assess the credibility of each of the witnesses. Even if plaintiff had committed adultery, it appears that the court found that there was no conclusive evidence that the sexual behavior occurred in the presence of the child or that it was in any way detrimental to the child so as to render plaintiff morally unfit. Further, moral fitness is only one of eleven factors that the court must consider. There was no abuse of discretion in not awarding defendant sole or joint custody based upon the evidence adduced at trial. As the court noted, due to past relationship between the parties, joint custody may have only served to foster continued disagreement and therefore, would not be in the best interests of the child.

Defendant argues that he should have been awarded more liberal visitation rights. Defendant is employed “off-shore” and works a fourteen day period off-shore with seven days on-shore. Examining the visitation rights, especially in light of defendant’s work schedule, it is clear that the visitation rights are reasonable.

. For these reasons, the judgment in favor of plaintiff, Earlene Netherland Wiley, is affirmed at defendant’s, Charles Wiley’s, costs.

      . Art. 5059. Computation of time
      In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
      A half-holiday is considered as a legal holiday. As legal holiday is to be included in the computation of a period of time allowed or prescribed, except when:
      (1) It is expressly excluded;
      (2) It would otherwise be the last day of the period; or
      (3) The period is less than seven days.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    John P. HARRINGTON, Jr., Plaintiff-Appellant, v. Juanita Keith Beasley OLIVER, Defendant-Appellee.
    No. 16539-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 14, 1984.

      Touchstone & Wilson, Ltd. by David M. Touchstone, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by J. Philip Goode, Jr., Shreveport, for defendant-appellee.
    Peatross & Greer by L. Edwin Greer, Shreveport, for third-party defendant-ap-pellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   JASPER E. JONES, Judge.

The plaintiff, John P. Harrington, Jr. appeals a judgment awarding him $2,100.00 for services he rendered performing a verbal contract made between himself and defendant’s former husband, in his capacity as agent for defendant, to renovate three houses owned by defendant as her separate property. Plaintiff contends the quantum awarded is inadequate. The defendant, Juanita Beasley Oliver, answered the appeal contending plaintiff was entitled to no award and in the alternative that the award is excessive. We reverse.

Defendant married Leonard Oliver on March 16, 1979. She had a substantial amount of separate property. After the marriage she executed a power of attorney giving Oliver, an accountant, virtually unlimited power to manage her separate property. Oliver established J and L Investments with her money and for her separate estate.

Oliver, on behalf of J and L Investments, entered into a verbal agreement with plaintiff to renovate houses to be purchased by the defendant in the Highland area of Shreveport. Oliver participated in the project to obtain tax advantages for the defendant and in anticipation of future profits. The terms of the agreement provided that all the money for the project was to be supplied by J and L Investments. Plaintiff agreed to act as the general contractor for the project. His duties consisted of locating the houses, negotiating for their purchase, drawing floor plans showing the work to be done, taking bids from sub-contractors and supervising the work. The contract provided plaintiff was to receive for his services one-half the profits from the sale of the houses and in the event the houses were leased instead of sold, one-half the profits from the rentals after the cost of the houses and renovation expenses were recovered.

At the time he entered the agreement plaintiff was working for the American Cancer Society. His take home pay was approximately $700.00 per month. He left his job with the Cancer Society August 31, 1979.

Three houses located at 627 Egan, 633 Egan and 641 Stoner were purchased pursuant to the agreement. Plaintiff negotiated their purchase. The two houses on Egan were purchased together. The closing date for their purchase was August 14, 1979. The closing date for the house at 641 Stoner was August 27, 1979.

Plaintiffs first offer for purchase of one of the houses was submitted at the end of June, 1979 and he went to work immediately thereafter drawing up floor plans for the desired renovation work. He eventually drew up a complete set of floor plans for all three of the houses.

After completing the floor plans plaintiff had the houses leveled, cleaned and prepared for the renovation work. He also began obtaining bids for the desired work. By the end of November most of the clean up and preparatory work was complete and a number of bids were in. Plaintiffs services were terminated at about this time and a general contractor was hired to finish the project.

Plaintiff contends he was discharged as general contractor by the defendant and locked out of the houses upon which he was working.' Defendant contends plaintiff abandoned the work. Plaintiff filed suit on November 18, 1980 seeking to recover the value of the services he performed during the existence of the agreement on the basis of quantum meruit. He also prayed for damages for mental anguish and lost profits. The trial court found defendant terminated the plaintiff and the plaintiff abandoned the project and for these reasons each of the parties had breached the contract. The trial court awarded plaintiff judgment for $2,100.00 for services rendered for the three months of September, October and. November, based upon $700.00 per month for his services. Plaintiffs other demands were rejected.

At trial it was established that on August 6, 1979 Oliver issued plaintiff a check from J and L Investments for $4,761.80. Oliver listed the payment on his books as a renovation expense. Defendant sought a credit for the amount of the check against any sums she was found to owe plaintiff. The trial court refused to allow defendant a ■ credit for any amount.

The issues raised by plaintiffs appeal and defendant’s answer to the appeal are:

(1) Whether the trial judge correctly found that plaintiff was entitled to recover $2,100.00; and
(2) Whether defendant is entitled to a credit against any award rendered in favor of the plaintiff for the $4,761.80 payment to plaintiff.

Issue # 1

Plaintiff testified that the defendant called him on the phone and terminated his connection with the renovation project. He testified the defendant changed the locks on the three houses and he could not get inside of them to pursue his work. The defendant denied that she called the plaintiff and terminated him. The record reflects that defendant was hospitalized several times for alcoholism during the time frame when the plaintiff testified he received her phone call. Oliver admitted that he changed the locks on the doors of the houses which corroborated the plaintiffs testimony on this fact. Considering these circumstances the trial judge’s credibility call accepting plaintiffs testimony and rejecting defendant’s testimony and concluding defendant breached the contract is supported by substantial evidence. This factual determination is not manifestly erroneous and cannot be disturbed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Oliver testified he tried unsuccessfully to locate the plaintiff to encourage him to pursue the contract. The trial judge accepted this testimony and based upon it concluded the plaintiff also breached the contract by abandoning the work. The plaintiff’s unavailability after he received his termination from the defendant and was locked out of the houses by the change of locks does not constitute a breach of contract by him. The contractual relationship between the plaintiff and defendant had been earlier severed by the defendant and the trial court’s determination that the plaintiff breached the contract is clearly wrong. See Guidry & Swayne v. Miller, 217 La. 935, 47 So.2d 721 (1950) which held that a contractor did not breach a building contract by discontinuing work where the owner refused to pay a progress installment due under the contract, locked the tool house at the project and placed no trespassing signs on the property.

The owner of a construction project has the right to terminate a construction contract even though work has commenced upon the project by “paying for the expense and labor already incurred, and such damages as the nature of the ease may require.” LSA-C.C. art. 2765. The damages which a contractor is entitled to receive in excess of his labor and material cost expended at the time the proprietor terminates the contract are the profits which he would have made had he been permitted to complete the contract. He is to be placed in the same position he would have occupied if he had completed the contract. Forrest and Crocker v. Caldwell and Hickey, 5 La.Ann. 220 (La.1850); Dugue v. Levy, 114 La. 21, 87 So. 995 (1904); Guidry & Swayne v. Miller, supra. Tom Black & Associates v. Thibaut Const. Co., 420 So.2d 1150 (La.App. 5th Cir.1982).

The contractor is required to prove his loss of profits with certainty. The proof must not be speculative. Guidry & Swayne v. Miller, supra, Housecraft Division of Southern Siding Co. v. Jones, 120 So.2d 662 (La.App.Orleans 1960).

The house on Stoner was cleaned and leveled but no other renovation work was done upon it. This house was sold on May 23, 1980 at a loss of $1,029.29.

The two houses on Egan were completely renovated at a total cost to defendant, including the price of the houses, of approximately $190,000.00. These houses are currently leased out as multi-unit apartments and provide a total monthly rental income of from $1,200.00 to $1,500.00 per month. The record contains no indication of annual ad valorem taxes, insurance and maintenance cost on these rental units. Assuming the houses continue to be leased at the same rent it will be more than ten years before the rent income will return to the defendant her initial cost and renovation expense. A substantial additional rental period must then elapse for the defendant to recover the sums she has expended for taxes, insurance and maintenance. Only after defendant has fully recovered all sums expended will there be profits, one-half of which plaintiff would be entitled to under the contract. The plaintiff produced no evidence to establish the number of years these renovated houses would remain in adequate condition to serve as rental units. The plaintiff did not establish the market value of these houses following their renovation.

The plaintiff has failed to establish what profits he would have earned if he had been permitted to complete the contract. Plaintiff attempted to establish his damages on the theory of quantum meruit. He offered evidence to establish the salary that a general contractor would have included within a renovation bid for his compensation, the profits that a contractor would have made upon the remodeling project and the fee which an experienced draftsman would have charged to prepare the plans.

The plaintiff is not entitled to recover in this case based upon quantum meruit because he had a contract which he had a legal right to enforce. One of the prerequisites to the application of the quantum meruit doctrine is that the plaintiff must have no other remedy available to him at law. Creely v. Leisure Living, Inc., 437 So.2d 816 (La.1983); Porter v. Johnson, 408 So.2d 961 (La.App.2d Cir.1981). The plaintiff’s remedy was to have established what profits could have been made from the sale of the renovated houses, or what profits he could have reasonably anticipated receiving from the lease of these houses. This he failed to do. Under the contract the sole compensation to which he was entitled for the services which he was to perform for acting in the capacity as a general contractor on the renovation project was one-half of any profits made from the project. He was not entitled under the contract to receive any additional compensation or payment for the services rendered by him in connection with the renovation project.

The trial judge’s award to the plaintiff of $2,100.00 for the three months work for the months of September, October and November was not provided for nor contemplated in the contract and the plaintiff was not entitled to this award.

Because we have concluded plaintiff did not establish that he was entitled to any recovery under the contract, we find it unnecessary to consider the defendant’s argument of set-off based upon the payment by Oliver to the plaintiff of $4,761.80.

The judgment appealed is REVERSED AND SET ASIDE. The suit is dismissed at plaintiffs cost.

      . Defendant filed a third party demand against her former husband which was rejected by the trial court. On appeal she does not assign as error this aspect of the judgment rejecting her third party demand against Oliver.


author: MARVIN, Judge.

text:
    Max Henry THORNTON, Jr. and Emily Langford Thornton, Plaintiffs-Appellants, v. HERITAGE FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    No. 16541-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Jack D. Barnett, Shreveport, for plaintiff s-appellants.
    Adams & Wyche by Aylmer M. Wyche, III, Benton, and Shuey & Smith, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Plaintiffs appeal a judgment that sustained an exception of no cause of action and dismissed their suit for damages against defendant Heritage Federal Savings & Loan Association.

Plaintiffs essentially attempted to allege facts in their 1982 action which might imply, however unsuccessfully, that a 1981 foreclosure under executory process brought against them by Heritage constituted either an abuse of process, a malicious prosecution, or a “wrongful” seizure.

We affirm that part of the judgment sustaining the exception, but set aside the judgment insofar as it dismisses plaintiffs’ action. We remand to allow plaintiffs a delay in which to amend their pleadings. CCP Art. 934.

PLAINTIFFS’ ALLEGATIONS

Plaintiffs alleged that Heritage brought executory proceedings against them on Heritage’s allegations that plaintiffs’ indebtedness had become due because plaintiffs had not paid the installment payments for four months; that since June 1977, plaintiffs had “regularly” been “two and three months in arrears” and that a “long standing course of conduct” between plaintiffs and defendant was for plaintiffs to make past due installment payments when defendant would remind plaintiffs by telephone. Plaintiffs alleged that they should have been so “contacted” by defendant before the filing of the petition for executory process and that they had been “forced” to pay defendant “fees and expenses ... to stop the foreclosure” and had to refinance “at a rate of interest more than twice as great” as they were previously paying to Heritage.

Plaintiffs prayed for the difference in the interest they had contracted to pay another, for the fees and expenses they paid defendant, and for damages for their “embarrassment and anguish of being suddenly, and without warning, subjected to a foreclosure proceeding.”

THE CAUSE OF ACTION

Plaintiffs do not attempt to “label” their cause of action or to frame their scant factual allegations to any doctrine other than their entitlement to money damages, apparently under CC Art. 2315. Plaintiffs argue in brief that the “doctrine of forbearance” bars a creditor from demanding strict performance of an obligation without notice or warning and that Heritage’s practice of a “sudden-death foreclosure ... offends public policy [and] is unethical, oppressive, unscrupulous and does substantial injury to consumers.” Plaintiffs cite to us, but did not cite to the lower court, the Consumer Protection Law.

In Moore v. Goodyear Tire and Rubber Co., 364 So.2d 630 (La.App.2d Cir.1978), we employed the Consumer Protection Law, LRS 51:1405(A) to find a non-judicial repossession by a creditor to be an unfair trade practice, offensive to public policy. Compare Buckner v. Carmack, 272 So.2d 326 (La.1973), where executory process was considered. In Sternberg v. Mason, 339 So.2d 373 (La.App. 1st Cir.1976), writ ref., forbearance or waiver was employed under particular facts to enjoin executory process where late payments were always accepted. Other cases cited by plaintiffs are also inapposite to the factual allegations here made by plaintiffs and to the procedural posture of this case.

Plaintiffs did not attempt to enjoin exec-utory process or to use the alleged forbearance as a defense. An executory proceeding may be arrested on grounds that enforcement of the debt is premature. CCP Art. 2753(2). Buckner v. Carmack, supra. The effect of prematurity may be waived. See CCP Art. 926.

Plaintiffs do not assert that the debt on which Heritage sued was not owed, but argue that its maturity was not accelerated. Having paid the debt, plaintiffs could not obtain restitution. CC Arts. 2303, 2307.

When an exception of no cause of action has been filed, we are required to consider the factual allegations of the petition in a broad light and to give every reasonable interpretation to the petition that might maintain its sufficiency. Weldon v. Republic Bank, 414 So.2d 1361 (La.App.2d Cir.1982).

Plaintiffs’ factual allegations, however, fail to allege a cause of action either for malicious prosecution (Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975)); for abuse of process (Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App.2d Cir.1978)); for an illegal or unlawful seizure (Burris v. Gay, 324 So.2d 11 (La.App.2d Cir.1975), writ ref.); or for an “unfair trade practice” (Moore, Buckner, supra).

Plaintiffs may be able to amend their petition to remove the grounds for the exception. Where the grounds for the exception may be removed by factual amendment, the judgment sustaining the exception should not dismiss plaintiffs’ petition until plaintiffs are allowed a delay in which to amend. CCP Art. 934. Accordingly, we shall amend the judgment to set aside the dismissal and to grant plaintiff a delay in which to amend.

DECREE

The judgment sustaining the exception of no cause of action is affirmed at appellants’ cost. Insofar as the judgment dismisses plaintiffs’ action, it is set aside and is amended to grant plaintiffs 10 days from the date this opinion becomes final to amend their petition to state a cause of action, in default of which, plaintiffs’ action shall be dismissed. CCP Art. 934. The case is therefore remanded.

AMENDED, AFFIRMED, and REMANDED.


author: NORRIS, Judge.

text:
    Paul D. WIGER, d/b/a Parlor to Patio Floors, Plaintiff-Appellant, v. Larry MEYER, Defendant-Appellee.
    No. 16545-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      William H. Baker, Jonesboro, for plaintiff-appellant.
    Culpepper, Teat, Caldwell & Avery, by Bobby L. Culpepper, Jonesboro, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

The plaintiff, who was the seller in this case, appeals a lower court judgment which awarded him $1,500 and ordered the defendant, purchaser, to return certain movable property. Appellant seeks an increase in the amount awarded. Appellee only asks for affirmance.

Wiger, the plaintiff, was a businessman who had a carpet and flooring store in Jonesboro. Meyer, the defendant, was a carpet and flooring installer who had known Wiger for about five years, during which time he worked for Wiger on a few occasions. Sometime in 1981, Meyer expressed an interest in getting into the carpet business himself. Wiger said he could help him do so, but that the best way would be for Meyer to buy up somebody’s inventory and store equipment. Wiger was considering retiring from the business because he had lost the lease on his store and said he could probably help Meyer.

Eventually, Meyer agreed to buy the contents of Wiger’s store and to open up his own business. The sale took place on April 14, 1981. There was no written contract or bill of sale but there is a promissory note for $45,000 and an inventory prepared by Wiger without Meyer’s collaboration. The note is payable in monthly installments of $500 each, with “large payments at Larry Meyer’s discretion” to pay off the balance by June 1985. It also states an interest rate of 10%, although the parties agree that only 8% was intended.

The sales business did not go well for Meyer. The store could not pay for itself and Meyer was forced to return to work installing carpet part-time, working for Wiger and other carpet retailers. Meyer’s wife tended the store during these times. By the end of 1981 Meyer was seriously considering declaring bankruptcy. In January 1982, he met with Wiger and informed him of his distress. Wiger was willing to modify the agreement.

The undisputed elements of the modified agreement are that Wiger would take back almost the entire salable inventory and leave Meyer with the store equipment, sample books, and displays. Wiger would credit the wholesale value of the returned goods against Meyer’s debt. In addition, Wiger would grant Meyer six months of interest-free payments. For these six months Meyer agreed to pay $750 instead of $500. They made a new list of inventory, but once again they failed to commit their agreement to writing.

Unfortunately business did not improve for Meyer. He made four payments and then tendered to Wiger the remaining samples and equipment in his possession. Wiger refused and filed this suit to collect the balance owed on the note, $23,076.39. Wiger presented his case as a simple suit on a negotiable instrument. Wiger was a party to the sales transaction and had knowledge of Meyer’s defenses. He is therefore not a holder in due course, under LSA-R.S. 10:3-302(l)(c), and any evidence of Meyer’s personal defenses against him was properly admitted.

At trial, Meyer presented much evidence to show that Wiger had not delivered many of the goods promised, that many of the goods actually delivered were far less valuable than Wiger had represented and that Wiger had generally failed to comply with other promises he made, such as a covenant not to compete with Meyer. The big dispute, however, involved the provisions of the January 1982 agreement. Wiger claimed that he had taken back inventory, suspended interest and increased monthly payments for six months only to help reduce Meyer’s debt. He insisted he had no intention of receding from the sale and that at the end of six months, Meyer would simply have to start paying interest again. Meyer’s version is that he was to run his store for six more months on a specialty-order basis, and if after that time he still could not operate profitably, then Wiger would take back the rest and liquidate the debt.

The trial judge, who was in the best position to evaluate the credibility of the witnesses, believed Meyer’s version of the agreement and we find his factual determination is not manifestly erroneous. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). There is no reason why Wiger would take back essential items Meyer needed to conduct his business and credit them to the note unless he intended to rescind the agreement. Nor is there any reason why Meyer, on the verge of financial embarrassment, would consent to raise his monthly payments by 50% except to buy an option to rescind in six months should his business still be unprofitable at that time. The trial judge’s findings in this regard are adequately supported by the evidence.

We must disagree, however, with the trial judge’s conclusion that a novation took place in January 1982. Under LSA-C.C. art. 2185, novation is a contract whereby an existing obligation is extinguished and a new one is substituted in its place. LSA-C.C. art. 2190 states that novation cannot be presumed and must clearly result from the terms of the agreement or by full discharge , of the original debt, even though the jurisprudence has inferred novation under proper circumstances, as in Huval Tractor v. Joumet, 413 So.2d 978 (La.App. 3d Cir.1982). Even accepting Meyer’s version and noting all the circumstances we do not think the old obligation was extinguished in January 1982.

The original contract was a sale and, although it included many incidental stipulations in the form of personal obligations by Wiger, it contained the essential elements of thing, price and consent. LSA-C.C. art. 2439. After January 1982, the thing was essentially the same, including the same samples, displays and equipment as before. The consent remained the same as both parties concurred in the intent to sell and buy the things necessary for the running of a carpet store. The price was reduced, but it was still calculated on the basis of the April 1981 note. The payment scheme was changed, but a change in interest rate or amount of installments does not novate the obligation. Rex Finance Co. v. Cary, 145 So.2d 672 (La.App. 4th Cir.1962), aff d on other grounds, 244 La. 675, 154 So.2d 360 (1963). These changes were not enough to produce a novation, as LSA-C.C. art. 2187 says, “If it [the obligation] be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no novation.” The same conclusions will also obtain under new LSA-C.C. art. 1881 of the 1984 revision.

The January 1982 agreement was not a novation but a modification of the April 1981 contract. We agree with the trial judge that the parties mutually consented to change the payment and interest scheme, as well as to add the fixed term and resolutory condition. Mutual consent is the only requirement to amend an agreement under LSA-C.C. art. 1901. See also Snedegar v. Noel Estate Inc., 438 So.2d 677 (La.App. 2d Cir.1983), writ denied, 442 So.2d 459 (La.1983). Writing was not required for this amendment, under LSA-C.C. art. 2441, and Meyer has proved the content of the amendment by the surrounding circumstances and the testimony of one credible witness, under LSA-C.C. art. 2277. See also O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir.1979).

The record shows that Meyer continued to operate his store despite his tender of the remaining goods, even at the time of the trial. We do not interpret these acts as an acknowledgment that he intended to stay in business all along or as proof that the business became profitable. Such a conclusion would go against the weight of the testimony. We rather consider these acts to be Meyer’s attempt to mitigate his losses. When Meyer made the admittedly premature tender of goods to Wiger, it became apparent that Wiger was not going to honor his end of the bargain as modified. Although Meyer was responsible for the initial breach of the modified agreement, we cannot fault him for trying to salvage something from the proposition. In fact, he might have had a duty to do so. See LSA-C.C. art. 1930; Henry Rose Mercantile & Mfg. Co. v. Smith, 139 La. 217, 71 So. 487 (1916).

Under the terms of the amendment, Meyer was to pay a $750 installment each month, interest-free, and if in six months he could not make a profit, both sides would rescind. Meyer’s business did not become profitable within the six-month period and he tendered return of the movables to Wiger. Thus the trial court was not in error in rendering judgment in favor of Wiger for $1,500 and further ordering Meyer to return to Wiger the movable property-

The judgment of the lower court is affirmed at appellant’s cost.

AFFIRMED.

      . This arrangement would allow Meyer to show samples to prospective customers and place individual orders for any who wanted to purchase and were willing to wait. Meyer was effectively out of the "cash and carry” business.

      . New LSA-C.C. art. 1881 reads:
      Novation takes place when, by agreement of the parties, a new performance is substituted for that previously owed, or a new cause is substituted for that of the original obligation. If any substantial part of the original performance is still owed, there is no novation.

      Novation takes place also when the parties expressly declare their intention to novate an obligation. Mere modification of an obligation, made without intention to extinguish it, does not effect a novation.
      The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification.
      [Emphasis added.]
      Acts 1984, No. 331, § 1, art. 1881.
      Revision comment (a) says that the article is based on present art. 2187, does not change the law, and seeks to discourage the finding of novation absent clear intent. We think, however, that this new article will be more permissive of novation, since it would allow novation if "any” part of the obligation remained the same, provided that was not a "substantial” part. This difference would not be of any consequence in this case because in this case a very substantial part remained the same.


text:
    Fred THOMAS, Appellant, v. L.C. JACOBS, Appellee.
    No. 16546-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      William H. Baker, Jonesboro, for appellant.
    James D. Caldwell, Jonesboro, for appel-lee.
    Before JASPER E. JONES, NORRIS and SEXTON, JJ.
   JASPER E. JONES, Judge.

Fred Thomas, plaintiff in this worker’s compensation case appeals a judgment rejecting his demands for compensation, medical expenses, penalties and attorney’s fees against his alleged statutory employer, Givens Timber Company, Inc., and its insurer, Southern Casualty Insurance Company.

The trial court found that plaintiff failed to prove the work he was performing as a wood loader for L.C. Jacobs, his immediate employer at the time of his accidental injury, was production of pulpwood for delivery to Givens.

We affirm.

Plaintiff was employed by L.C. Jacobs, a one truck wood producer who bought, cut, hauled and sold pine and hardwood timber. Jacobs sold wood to pulpwood brokers, including Givens, for resale to papermills where it was used in the production of paper. Jacobs also sold hardwood to Lowe Mfg. Co. for use in the manufacture of pallets.

Jacobs commenced delivering wood to Givens on July 26, 1983 and continued until September 5 when Givens terminated the relationship. All of the wood sold to Givens was pine except for three loads of hardwood. Jacobs had sold hardwood to Lowe prior to the time he commenced selling wood to Givens and Jacobs continued to sell hardwood to Lowe while he was doing business with Givens.

On September 1, 1983 Jacobs, Fred Thomas and Nobie Blankenship, who was employed by Jacobs to cut the timber, were producing wood from a tract of land in Jackson Parish belonging to Henry Runyon. On this date, while picking up a piece of wood, Thomas injured his back. The records of Givens reflect that on September 1 Jacobs delivered to it two loads of pine pulpwood and no hardwood. The records of Lowe Mfg. Co. reflect that on September 1 Jacobs delivered to it one load of hardwood. On September 13 Thomas gave a statement to Southern Casualty’s adjuster wherein he stated he was loading hardwood at the time he was injured.

Thomas sued his primary employer, L.C. Jacobs, Givens and Southern Casualty for compensation benefits. He obtained a default judgment against Jacobs. The trial judge found plaintiff failed to prove by a preponderance of evidence, that plaintiff was injured producing wood for Givens and rejected plaintiffs demands.

The primary issue presented by this appeal is whether the plaintiff proved he sustained his injury while loading wood delivered to Givens.

Jacobs and Thomas testified that on the date Thomas was injured only two loads of pine pulpwood were cut, loaded and hauled and these were delivered to Givens. Givens’ records reflect that it received only two loads of pine and no hardwood from Jacobs on that date. There is therefore no dispute that Givens received only pine on the date of plaintiff’s injury. Plaintiff was required to prove by a preponderance of evidence that he sustained his injury while loading pine pulpwood to establish his claim for compensation benefits against Givens and its insurer.

Plaintiff testified at trial that he hurt his back while removing a piece of hardwood from the path which Jacob’s truck was required to back as they loaded it with pine pulpwood. If this fact was proven it would establish that he injured his back while loading pine pulpwood, since he was clearing a path for the movement of the truck as it was being loaded with pine pulpwood, even though plaintiff was actually handling a piece of hardwood when the injury was sustained.

Plaintiff’s accident was not observed by Jacobs or Blankenship but each of them corroborated his testimony. These witnesses stated they were told by plaintiff he injured his back while clearing the road preparatory to loading pine pulpwood.

Jacobs testified all the hardwood had been removed from the Runyon tract three or four weeks before plaintiff’s injury. Blankenship testified no hardwood was cut on the day of the accident because all of the hardwood had been earlier removed from the Runyon tract. Plaintiff’s witness, Walter Runyon, brother of the land owner, came to the area the day plaintiff was injured to feed his cattle. Runyon stated Jacobs hauled only pine that day for the reason that all of the hardwood had been earlier removed from the area.

On September 13 while plaintiff was in the Jackson Parish Hospital Leo Roberts, an adjuster for Southern Casualty, took a tape recorded statement from the plaintiff in which the plaintiff stated that he sustained his injury on September 1 while loading hardwood. Roberts testified at trial that he took the statement with plaintiff’s consent and that plaintiff appeared to be normal mentally at the time it was taken. Plaintiff testified at trial that he remembered giving the statement and stated that at the time he gave the statement “I believe I know what I was saying.” Plaintiff testified at the time he gave the statement he was taking lots of pills and he was sick and in pain.

The medical evidence reflects plaintiff sustained an acute lumbosacral sprain and was hospitalized on September 6 and discharged on September 20. During his hospitalization he was in traction and took muscle relaxants, anti-inflamatory drugs and some medication for pain. The nurse’s notes on September 13 indicate on that date plaintiff was out of traction, feeling good and making no complaints of pain.

The trial judge admitted the tape into evidence and we have listened to the tape. The transcription is about 8 minutes long and the plaintiff answers the questions in a clear and distinct manner with very little hesitation.

Prior unsworn inconsistant statements of a witness are admissible to impeach sworn in court testimony. Where facts established in the record are consistent with the prior unsworn statement, the out of court statement can be found to conclusively impeach the sworn in court testimony. Passera v. United States Guarantee Co., 187 So. 345 (La.App.Orleans 1939); Bartholomew v. Impastato, 12 So.2d 700 (La.App.Orleans 1943); Galiano v. Ocean Accident & Guarantee Corporation, 55 So.2d 641 (La.App.Orleans 1951). See also Lefort v. Meibaum Bros., Inc., 321 So.2d 824 (La.App. 4th Cir.1975) where a prior unsworn inconsistent tape recorded statement was found admissible for the purpose of impeaching sworn in court testimony.

We find the trial judge properly admitted the prior recorded unsworn statement to impeach plaintiff’s inconsistent sworn testimony at trial.

The plaintiff at trial denied that he told Roberts in the recorded statement that he injured his back loading hardwood. He further testified that he had never loaded any hardwood for L.C. Jacobs and that any hardwood hauled off of the Runyon tract occurred after he was injured. The plaintiff had been employed as Jacobs’ wood loader for two months prior to his injtiry and Jacobs testified that all the hardwood had been removed from the Runyon tract three weeks before plaintiff’s injury. Blankenship testified the hardwood had been earlier removed. The testimony of plaintiff is not only inconsistent with his prior recorded statement but is inconsistent with the testimony of these two witnesses and his witness, Walter Runyon.

Another factor considered by the trial judge in evaluating plaintiff’s in-court testimony was the testimony of Paul D. Lowe who testified that L.C. Jacobs delivered to Lowe Mfg. Co. a load of hardwood on September 1,1983. Lowe’s testimony was corroborated by a purchase ticket filled out by him dated September 1, 1983 that reflects the wood purchased and which ticket stated the wood had come from the Henry Runyon tract. A cancelled Lowe Mfg. Co. check payable to L.C. Jacobs dated September 1, that was paid by the bank on September 2, with the wood purchase noted upon it was admitted into evidence along with the purchase ticket. Though L.C. Jacobs denied delivering a load of hardwood to Lowe’s on September 1 he admitted that he had endorsed the check which cleared the bank on September 2.

We further note the records of Givens in evidence reflect that on September 5 L.C. Jacobs delivered a load of hardwood to Givens from the Runyon tract. This documented fact is inconsistent with the testimony of Jacobs and Blankenship that all the hardwood had been removed from the Runyon tract prior to September 1.

The plaintiff in a worker’s compensation case is required to prove his case by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Bamburg v. Riley-Beaird, Inc., 305 So.2d 551 (La.App. 2d Cir.1974).

When there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find the tape recorded statement and the September 1 sale of hardwood to Lowe by Jacobs, along with the other significant conflicts in the testimony of plaintiff and his witnesses, support the trial court’s credibility call wherein he concluded the plaintiff failed to prove his case by a preponderance of the evidence. There is no manifest error in this determination.

Judgment affirmed at appellant’s cost.

      . Q. Okay. You were cutting pine and hardwood?
      A. Yes sir, but we was loading hardwood at this time.
      <3. You were cutting hardwood at that — you were stacking hardwood in other words?
      A. Yes sir.
      Q. What kind of hardwood was it? Red Oak? White Oak—
      A. —Red Oak.
      Q. Red Oak?
      A. Yes sir.

      . There is no evidence in this record which establishes economic control by Givens (the buyer) of Jacobs (the seller) which is required to establish that plaintiff is a statutory employee of Givens. Wilson v. Jacobs, 438 So.2d 1119 (La.App. 2d Cir.1983) and the authorities therein cited.
      The insurance policy of Southern Casualty with Givens as the named insured contains the following provision:
      It is agreed that any person while engaged in performing logging, lumbering, sawmilling or related operations for the insured shall be deemed to be an employee of the insured. This provision of the insurance policy proba-
      bly explains the failure of the defendants to raise the issue of economic control in their appellate brief. Because of the result we have reached we find it unnecessary to address this issue.


text:
    Richard TOWNS, Plaintiff-Appellee, v. GEORGIA CASUALTY & SURETY CO., et al, Defendants-Appellants.
    No. 16548-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, Armand F. Rabun, Farmerville, for defendants-appellants.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Walker & Walker by Carl F. Walker, Monroe, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this tort action arising out of a collision between a truck and an automobile, the truck defendants appeal, contending that the jury was clearly wrong in allocating only 10 percent of the fault to the automobile driver. CC Art. 2323.

In answer to the appeal, plaintiffs (Towns) contend that the jury erred in finding Mrs. Towns, the driver of the automobile, negligent to any degree and that the $260,000 damages awarded to her two-year-old son should be increased to $500,-000. We affirm.

SCOPE OF REVIEW

The finding of negligence presents a question of law only when the inquiry or analysis concerns legal causation, the extent or scope of an actor’s duty. Varnado v. Continental Ins. Company, 446 So.2d 1343, 1345 (La.App. 1st Cir.1984); Triangle Trucking Co. v. Alexander, 451 So.2d 638, 642 (La.App. 3d Cir.1984). In an ordinary tort action presenting cause in fact and reasonableness of conduct questions, the determination and apportionment of fault is a factual issue. Varnado, supra; Triangle Trucking Co., supra.

Findings of respective percentages of fault under CC Art. 2323 are factual findings just as the finding of contributory negligence under the prior law was factual. Appellate courts will not disturb such findings unless, for well articulated reasons, those findings are found to be clearly wrong, manifestly erroneous. Triangle, Varnado, supra; Thomas v. Missouri-Pacific R. Co., 451 So.2d 1152 (La.App. 3d Cir.1984); Abraham v. Hanover Ins. Co., 420 So.2d 526 (La.App. 2d Cir.1982). See also Swartz, Comparative Negligence, §§ 18.1, 18.5, and Symposium, Comparative Negligence in Louisiana, 40 La.L.R. 289 (1980); Reck v. Stevens, 373 So.2d 498 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Compare Price v. Louisiana Farm Bureau Mutual Ins. Co., 457 So.2d 722 (La.App. 2d Cir.1984).

Whether a fact-finder determines a party to be one percent at fault, totally at fault, or somewhere in between, the manifest error rule applies. Thomas v. Missouri-Pacific R. Co., supra, at p. 1158. A Louisiana jury’s allocation of 95%-5% fault under the comparative negligence law has been upheld. Fritscher v. Chateau Golf & Country Club, 453 So.2d 964 (La.App. 5th Cir.1984). Different juries and jurors may often give dissimilar apportionment. Swartz, supra, § 17.1 at pp. 276-277.

A jury’s assessment of damages will not be set aside unless it is found that the jury abused its much discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

FACTS

The accident occurred during daylight hours near the intersection of La. Hwys. 33 and 826, blacktop roads in rural Union Parish. Hwy. 33 runs north and south. Hwy. 826 runs easterly from Hwy. 33, forming a T intersection. Defendant’s log truck was proceeding north on Hwy. 33 and began a wide-sweeping right turn, intending to then proceed easterly on Hwy. 826. Mrs. Towns, driving the family two-door Pontiac Lemans automobile, was proceeding westerly on Hwy. 826, the inferior highway. Traffic proceeding westerly on Hwy. 826 is confronted with a stop sign at the intersection. Both vehicles approached the intersection about the same time. Mrs. Towns was slowing in obedience to the stop sign.

The collision occurred as the truck had completed its turn onto Hwy. 826 and when the front of the truck was 96 feet from the easternmost line of the pavement of Hwy. 33. Plaintiffs’ expert and defendants’ expert agreed that the front wheel of the truck was at least IV2 feet across the center line of Hwy. 826 at impact. The truck was a Mack truck with dual drive wheels, pulling a loaded log trailer which also had dual wheels, an “18 wheeler” in CB vernacular. The highway was 24 feet wide near the area of impact.

The bumper of the truck struck the left front of the Pontiac at the headlight and heavily damaged the left front side and door of the Pontiac. The experts also agreed that each driver could have seen the other vehicle when they were about 180 feet apart and that the truck was traveling about 20 mph and Mrs. Towns was traveling about 25 mph at impact. The vehicles were “closing” on each other at the rate of about 66 feet per second. The impact caused a serious head injury to plaintiffs’ two-year-old son, Chad Towns, who was standing on the front seat of the car next to his mother. Also sitting on the front seat of the car was Chad’s six-year-old brother who fortunately was not injured.

The truck driver said that he first saw the Towns vehicle about 200 feet away as he was making his turn and that, as Mrs. Towns traveled the few feet before impact, she was attending to moving the baby (Chad) next to her and was not observing the truck.

Mrs. Towns testified that she was “positive” that she was in her lane, but acknowledged that at a deposition prior to trial she had said that she thought she was on her side of the road but could not be positive about it. At trial she explained her deposition answer by stating, “there’s no way to be a hundred percent positive.” Mrs. Towns insisted, however, that her attention was not diverted from approaching traffic by the child before the accident occurred.

The state trooper testified that skid marks left by Mrs. Towns’ Pontiac indicated that she was slightly over the center line at one point before impact, but not at impact. The trooper also testified that Mrs. Towns explained that she was hurrying to get to her destination, a Tupperware party at a friend’s home.

The plaintiffs’ accident reconstruction expert opined that Mrs. Towns’ Pontiac was “straight lined-up with the center line” for the 30 to 40 feet she traveled before impact and was in her lane at impact. In his opinion, Mrs. Towns had “at most” three seconds in which to react to the situation.

Defendants’ accident reconstruction expert agreed that both drivers had no more than three seconds to react. He disagreed with plaintiffs’ expert about the course of Mrs. Towns’ car before impact. In his opinion Mrs. Towns’ car, when a few feet before the impact, was slightly across the center line angled at about four degrees. Defendants’ expert said that if Mrs. Towns had observed the truck 180 feet away when she should have, she would have had ample time, space, and distance either to stop or to turn her car to the right and avoid the accident.

CONCLUSIONS

The contentions of the parties and the testimony of the witnesses present purely factual and credibility questions. Where was Mrs. Towns on the highway? What was she doing, what was she observing? What should she have seen and done? The jury could have believed the truck driver and his expert about Mrs. Towns’ position and observation before impact, and could have assessed Mrs. Towns with some fault. On the other hand, the jury could have believed Mrs. Towns and her expert and assessed her with no fault. Some fault had to be assessed to the truck driver because of his admission that he was across the center line at impact and before. There is substantial and credible evidence in this record from which the jury could have assessed the great majority of fault or all of the fault on the truck driver.

The Towns parties contend that Mrs. Towns was not negligent in any respect because she was faced with a sudden emergency not of her own making and acted reasonably under the circumstances, even though her reaction to the truck in her lane did not succeed in avoiding the collision. Deumite v. West Bank Contractors, 343 So.2d 289 (La.App. 1st Cir.1977).

Defendants argue that the sudden emergency doctrine is inapplicable and does not excuse a plaintiffs failure to observe a danger in sufficient time to avert a collision. Moody v. Arabie, 433 So.2d 833 (La.App. 3d Cir.1983). The Uniform Comparative Fault Act specifically addresses whether comparative negligence is applicable in such circumstances, while the Louisiana law is silent. See Wade, Comparative Negligence — Its Development in the United States and Its Present Status in Louisiana, 40 La.L.R. 299, at 313 (1980). Professor Wade suggests that Louisiana should provide, as section (l)(a) of the Uniform Act provides, that the rule of comparative negligence “applies whether or not under prior law the claimant’s contributory fault ... was disregarded under legal doctrines such as last clear chance.” Professor Wade says it would be unfortunate if CC Art. 2323 were construed as being applicable only when contributory negligence would have barred recovery. In this instance, we must agree. Compare majority and concurring opinions in Frain as Tutrix of Beason v. State Farm Ins., 421 So.2d 1169 (La.App. 2d Cir.1982).

There is substantial and credible evidence in this record from which the jury could have deduced that Mrs. Towns was not as observant as she should have been and that she was driving on or slightly over the center line of the highway just before she saw the truck in her lane of travel.

The truck defendants argue that if Mrs. Towns was negligent in the respects mentioned, then the jury was clearly wrong in its allocation because her fault was at least equal to the fault of the truck driver. We reiterate that the jury could have allocated some fault to Mrs. Towns. We need not decide whether her fault could have been assessed as high as 50 percent or, on the other hand, as low as zero or one percent. We simply find that the 90 percent-10 percent allocation of fault under the circumstances of this record is supported and is not a clearly wrong finding of fact under CC Art. 2323. See cases cited under Scope of Review, supra; Thomas, supra, at p. 1158; Swartz, supra, at pp. 276-277.

QUANTUM

Young Chad Towns, standing on the front seat of the car, was thrown against the windshield and dashboard in the collision. He sustained puncture wounds and lacerations of his face and head, compound comminuted skull fractures, a concussion, and was rendered unconscious for 11 days. He was hospitalized for 27 days. With other medication, he was given Dilantin to prevent seizures. His injuries were serious and caused some residual brain damage. Expert opinion differs as to the degree of disability that Chad suffered and from which he may continue to suffer.

Experts testifying were Dr. Ware, a psychiatrist-neurologist; Dr. Gucker, a psychologist; Ms. Dunn, an occupational therapist; Dr. Bermudez, a neurosurgeon; Dr. King, a pediatric cardiologist; and Dr. Gay, a psychologist.

The accident occurred July 29, 1982. Trial was held about 18 months later on dates in January and February 1984. Dr. Ber-mudez treated Chad from the date of the accident, through his hospitalization, and as an outpatient on three occasions, November 1 and December 7, 1982, and June 14, 1983. Dr. King, the cardiologist, treated Chad during his hospitalization and as an outpatient on September 21, 1982. Dr. Gay, psychologist, saw either Chad or his parents on two occasions. Dr. Ware saw Chad and his parents on two occasions, February 22 and March 28, 1983. Dr. Gucker saw Chad on one occasion. Ms. Dunn saw Chad twice a day while he was in the intensive care unit at the hospital and seven times as an outpatient between November 12, 1982 and January 27, 1983.

Some experts opined that Chad would not be i able to complete high school or to perform any work that would require physical dexterity. Other experts opined that Chad would fully, completely recover, and would not be limited academically or vocationally. The latter experts based their opinion in part on the progress that Chad made in the several months following the accident.

Dr. King testified about Chad’s good recovery, return of memory, excellent recall, and good ambulation through the office visit of September 21, 1982. Dr. Bermudez mentioned that the last CT x-ray scan taken of Chad was “negative ... and showed no evidence of abnormality ... subdural collections.” He opined that Chad’s recovery, “neurologieally speaking, was excellent, that Chad should continue to improve and have normal functions ... and make a full recovery.” Dr. Gay opined that Chad should be able to complete high school and college and that 95 percent of the patients with vision and coordination problems similar to Chad’s problem successfully recovered and resolved those problems.

In short, Dr. Ware and Dr. Gucker expressed considerable doubt about Chad’s improvement or full recovery, while Dr. Bermudez and Dr. Gay expressed considerable optimism that Chad would fully recover.

Plaintiffs’ economic expert, Dr. Betting-er, estimated Chad’s total economic loss at $419,000 if Chad were totally disabled at age 18 and proportionately at 50 percent of that figure if Chad were able to perform only 50 percent of the jobs available to a normal person. Dr. Bettinger’s estimates were based on the earnings of a worker who would be paid the minimum wage projected to the time when Chad would be 18 years old.

Chad’s condition and progress during the 18-month period between the accident and the trial were thoroughly detailed to the jury. Expert opinion in most respects differed as to Chad’s present condition and immediate prognosis and in greater respects as to his ultimate prognosis. Chad’s economic loss (ranging up to $419,000, according to Dr. Bettinger) is, of course, related to Chad’s present condition and his ultimate prognosis. The jury awarded Chad $260,000 damages, and, to Chad’s father, approximately $40,000 for Chad’s future medical and approximately $20,000 for his past medical. The jury was interrogated only as to the total amount of damages sustained by Chad (CCP Art. 1812 C(4)) and was not asked to specify Chad’s past or future damage or impairment of earning capacity.

Under the circumstances of this record, the damage award of $260,000 is not an abuse of the jury’s discretion. Compare Ainsworth v. Government Employees Ins. Co., 427 So.2d 1220 (La.App. 3d Cir.1983), affirmed, 433 So.2d 709 (La.1983).

At appellants’ cost, judgment is AFFIRMED.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Jerry Wayne WILEY, Appellant.
    No. 16554-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Blackwell, Chambliss, Hobbs & Henry by Murphy Blackwell, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny Parker-son, Dist. Atty., Robert Johnson, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Defendant, Jerry Wayne Wiley, appeals his conviction of attempted simple burglary, La.R.S.14:27, 14:62 and simple burglary of an inhabited dwelling, La.R.S.14:62.2. On the conviction of simple burglary of an inhabited dwelling, the defendant was sentenced to five years at hard labor, one year without benefit of probation, parole, or suspension of sentence. On the conviction of attempted simple burglary, the defendant was sentenced to five years hard labor to run consecutively with the first sentence. The defendant has expressly abandoned all assignments of error relating to his conviction of simple burglary of an inhabited dwelling. The defendant asserts as his sole assignment of error that the sentence imposed by the court for his conviction of attempted simple burglary was unconstitutionally excessive. Finding no merit to the defendant’s argument, we affirm.

The evidence produced at the defendant’s trial for simple burglary of an inhabited dwelling reflect that on January 10, 1983 the defendant broke into the residence of Coleman Cyrus in Calhoun, Louisiana. The defendant stole from the Cyrus residence a television set, a tool box with assorted tools, a twelve gage bolt action shotgun, twelve gage shotgun shells, and an electric heater.

Subsequent to the defendant’s trial for simple burglary of an inhabited dwelling, the defendant plead guilty to attempted simple burglary. The record of the defendant’s guilty plea hearing reflects that the defendant on December 22, 1982 unlawfully entered a 1980 Chevrolet pick-up belonging to the D & J Construction Company of West Monroe, Louisiana. The defendant, without permission, entered the unlocked pick-up and took a walkie-talkie lying on the front seat.

The defendant’s sole argument on appeal is that the trial court erred in imposing an excessive sentence upon the defendant for his conviction of attempted simple burglary. The defendant asserts that sentence imposed of 5 years at hard labor to be served consecutively with the first conviction is unconstitutionally excessive in violation of article 1, section 20 of the Louisiana Constitution of 1974. The defendant asserts that the trial court should have imposed a sentence concurrent with the first conviction.

A sentence is constitutionally excessive in violation of article 1, section 20 of the Louisiana Constitution of 1974 if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.,1980). Unless there are specific reasons for heavier punishment, concurrent sentences rather than consecutive sentences are appropriate for convictions arising out of a single course of criminal conduct. La.C.Cr.P.Art.883; State v. Armstead, 432 So.2d 837 (La.,1983).

In the present case, however, the convictions do not arise out of the same act or transaction. Nor do they constitute part of a common scheme or plan. While consecutive sentences for convictions arising out of different courses of criminal conduct may still be constitutionally excessive, the trial judge need not provide an articulation to rebut the presumption against consecutive sentences because there is no such presumption when the penalties do not arise from the same course of criminal activity. State v. Armstead, supra.

It is evident that the two convictions do not arise out of the same course of conduct when the facts of each conviction are examined. In the defendant’s conviction for simple burglary of an inhabited dwelling, the defendant on January 10, 1983, unlawfully entered the residence of Colemen Cyrus in Calhoun, Louisiana in which the defendant stole a television set, tools, shotgun, and an electric heater. In the defendant’s conviction for attempted simple burglary, the facts reflect that on December 22, 1982 the defendant unlawfully entered a Chevrolet pick-up truck belonging to D & J Construction Company and stole a walkie-talkie contained in the truck.

Defendant faced a maximum possible sentence of twelve years at hard labor for his conviction of simple burglary of an inhabited dwelling and also faced a maximum possible sentence of six years imprisonment for his conviction of attempted simple burglary. Therefore, the defendant’s sentence of five years for each crime is well within the maximum possible sentence he could have received. We further note that the defendant received a substantial benefit as a result of the plea bargain agreement with the state. In the absence of a plea bargain, the defendant faced possible convictions for two counts of simple burglary which would have increased his sentencing exposure by six years.

In sentencing the defendant for attempted simple burglary, we also find that the trial court complied with the guidelines set forth in the La.C.Cr.P. Art. 894.1. The trial court noted the defendant’s numerous misdemeanor and felony convictions representing a total disregard for the property of others. The court noted that the defendant exhibited no remorse for his crime and a total lack of goals. The court noted as a mitigating circumstance that, when the defendant works, he is a good worker.

After reviewing the record of the present case, we find that the sentence imposed is not grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. Therefore, we find this assignment of error to be without merit.

Finding no error by the trial court, the defendant’s convictions and sentences are affirmed.


text:
    SECURITY NATIONAL BANK OF SHREVEPORT, Plaintiff-Appellant, v. Bennie W. TERRELL, Defendant-Appellee. SECURITY NATIONAL BANK OF SHREVEPORT, Plaintiff-Appellant, v. Bennie W. TERRELL and Wanda Terrell, Defendants-Appellees.
    Nos. 16560-CA to 16562-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.

      Peatross, Greer & Hayter by L. Edwin Greer, Shreveport, for defendants-appel-lees.
    Kennedy, Goodman & Donovan by Robert U. Goodman, John M. Frazier, D. F. Overdyke, III; and Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   PRICE, Judge.

Security National Bank of Shreveport appeals the judgment rendered against it in favor of Bennie W. Terrell and Wanda Terrell. The trial court found that Security had breached its contract with the Terrells and that the Terrells had been damaged by the breach in the amount of $124,800.75. Security originally brought suit to enforce collection of notes executed by the Terrells and the Terrells in turn reconvened in each suit alleging that they had a verbal contract with Security under which Security agreed to purchase dirt from the Terrells for use in the construction of a proposed bank building. Judgment was rendered in favor of Security on each of the three notes in dispute. It is the judgment in favor of the Terrells under the recoventional demand from which Security appeals. We affirm in part, reverse in part, and remand to the trial court.

FACTS

In the Spring of 1981, Security National Bank of Shreveport was being organized under an interim board of directors. At that time, Deartie Tucker, chairman of the interim board of directors and current chairman of the board at Security, met with Bennie Terrell concerning the construction of the bank. Tucker informed Terrell that in order to construct the bank at the site at the intersection of Blanchard Road and Heame Avenue in Shreveport, the bank needed a large quantity of fill dirt to bring the site to ground level with the adjacent roadways. The bank also was seeking buyers of stock to provide capitalization for the bank.

Tucker had several conversations with Terrell, who was the owner and operator of a dirt pit of approximately 80 acres in the Blanchard area, about the possibility of Security purchasing dirt from Terrell. In return for Security’s agreement to purchase dirt from him, Terrell agreed to purchase $50,000.00 worth of stock from the bank. Because Terrell did not have the funds available to purchase stock, Terrell borrowed $50,000.00 from Northwest Louisiana Production Credit Association.

On September 9, 1981, Terrell obtained the money for the stock purchase. On September 10, 1981, Terrell met with Edward Carter, the president and chief executive officer of Security. An agreement was reached in which the bank agreed to buy all of the fill dirt needed from Terrell who was to dig and load the dirt on trucks for the sum of $1.25 per pubic yard. In return, Terrell then purchased $50,000.00 worth of Security National Bank stock. Terrell and his family testified that Tucker had indicated to them that the bank would purchase at least 90,000 cubic yards of dirt. Both Tucker and Carter testified that the bank only agreed to purchase a minimum of $60,000.00 worth of dirt. Regardless of the actual amount of dirt involved, it is clear from the record that Security intended to purchase all the dirt it needed from Terrell.

On February 13, 1982, Security held a shareholders meeting wherein the shareholders formally ratified and approved all prior acts of the interim officers and directors. Additionally, Terrell was introduced to the shareholders as the man who was going to supply the fill dirt for the construction of the bank.

At the time that the bank officials entered into the contract with Terrell and subsequent to the agreement with him, Security was negotiating for an urban development action grant (UDAG) from the United States Department of Housing and Urban Development. Funds received from this grant were to be used to purchase the dirt necessary to construct the building and to finance installation of the city sewer system.

Tucker testified that in the spring of 1982 Security discovered that in order to take advantage of the money available from the grant, the bank had to solicit bids for the contracts involved in the construction of the building, including the contract for the purchase of dirt. According to Bennie and Wanda Terrell, Tucker assured them that this did not affect their contract with Security.

Security solicited bids for the purchase and delivery of the dirt necessary for preparation of the lot for construction for its building. Terrell did not offer a bid for the job. At the opening of bids on September 20, 1982, Trio Builders, Inc., was the second lowest bidder and was chosen by Security to provide the dirt for the lot.

When Terrell discovered that Trio Builders had been awarded the dirt contract under the grant, Terrell met with the officers of Security. At the meeting; Security agreed to repurchase the $50,000.00 worth of stock which Terrell had acquired. Security alternately found buyers for all stock and also paid the interest on the $50,000.00 loan owed by Terrell to the Northwest Louisiana Production Credit Association.

The record reflects that during construction of the bank, Trio builders delivered dirt in the amount of 102,800 cubic yards.

The trial court found that if Security had purchased the dirt from Terrell at the contract price of $1.25 per cubic yard, then Terrell would have received $128,500.00. From this figure the trial court deducted $3,699.25, the direct cost of digging and loading the dirt to determine Terrell’s lost profit which amounted to $124,800.75. The trial court awarded damages to Terrell and against Security in this amount. Additionally, the trial court awarded Security a judgment against Terrell for the balance due on the promissory notes, including interest and attorneys’ fees. Security asserts on appeal that the contract with the Terrells is a nullity because Security’s consent was vitiated by a material error of fact. Secondly, Security asserts that even if Security had breached the agreement, the trial court erred in determining the amount of damages due to the Terrells.

CONTRACT LIABILITY

Security contends that because it was unaware of the requirement for the solicitation of bids before granting a contract under UDAG regulations, it was operating under a material mistake of fact which vitiated its consent and nullified its agreement with Terrell.

Consent to a contract can be invalid if produced by an error of fact. La. C.C. Arts. 1819 and 1820. There is an error of fact when one is ignorant of a fact which exists, or believes in the existence of a fact which actually does not éxist. La. C.C. Art. 1821. Not every error of fact is sufficient to invalidate the contract. La. C.C. Art. 1823 provides as follows

Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error which will invalidate it. To have that affect, the error must be in some point, such as a principle cause for making the contract, and it may be either as to the motive for making the contract, to the person to whom it is made, or to the subject matter of the contract itself.

Additionally, La.C.C. Art. 1826 establishes that the other party to the contract must have known that the error involved the principle cause of the agreement. La.C.C. Art. 1826 provides as follows

No error in the motive can invalidate a contract, unless the other party was apprised that it was the principle cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.

Thus, a contract may be invalidated for unilateral error of fact as to the motive when the other party knew or should have known what the motive of the contract was. Ouachita Rental Company v. Trainer 408 So.2d 930 (La.App.2d Cir. 1981); Scoggin v. Bagley 368 So.2d 763 (La.App.2d Cir.1979). In the present case, it does not appear that Terrell had any knowledge of Security’s intent to procure UDAG funds. Furthermore, it does not appear that the source of the money used to purchase the dirt constituted a principle cause of the contract. Officers for Security testified that they had at no time discussed the grant or any source of the money to be used in purchasing the dirt.Therefore, we find that the unilateral error of Security was not a principle cause of the agreement. We also find that from the nature of the transaction, it cannot be presumed that Terrell knew of the grant.

We find no error in the finding of the trial court that the agreement between Security and Terrell was binding and that Security breached this contract.

DAMAGES

By this assignment, Security asserts that the trial court erred in determining the amount of damages due Terrell.

The trial court found the evidence showed that 102,800 cubic yards of dirt were delivered to the job site by Trio Builders. The court found that if Security had not breached its contract, Terrell would have sold and loaded this amount of dirt for Security at a cost of $1.25 per cubic yard, or $128,500.00 total. Following the Louisiana Supreme Court’s opinion in White v. Rimmer and Garrett, Inc., 340 So.2d 283 (La., 1976), the trial court deducted the direct cost of digging and loading the dirt from this figure to determine Terrell’s lost profit. The court found the direct costs to Terrell to be $3,699.25, thus leaving a net profit of $124,800.75 to Terrell.

Security contends that the facts reveal that the parties were contracting for a sale of goods rather than for the performance of services. Therefore, it contends that the correct measure of damages for the breach was the difference between the contract price and the market price at the time of the breach. Friedman Iron and Supply Company v. J.B. Beaird Company, 222 La. 627, 63 So.2d 144, (1953). Stated another way, Security contends that the formula used by the trial court pays Terrell for 102,800 cubic yards of dirt which he still has.

Terrell contends that the trial court was correct in applying the standard of White v. Rimmer and Garrett, Inc., supra, because the contract was essentially a contract for services. He contends that damages for an ordinary sale of goods do not apply in the present case since the sale of dirt was only a minor part of the agreement and that the actual cost of the dirt to him was negligible. Terrell further contends that the formula developed by the Friedman case is based on the premise that a seller of goods has benefited twice if he recovers the full price from a buyer who has breached his contract and yet retains the goods themselves to sell to another. This premise, he contends, is applicable only in instances where there is a constant or ready market for the commodity being sold. Terrell contends that there was no ready market for his dirt during the time frame when this contract was to be performed.

In White v. Rimmer and Garrett, Inc., supra, White entered into a subcontract with Rimmer and Garrett for the construction of a portion of the 1-210 bypass in Lake Charles, Louisiana. Rimmer and Garrett purchased land on which White agreed to excavate dirt for the construction site. The Louisiana Supreme Court found that the proper measure of damages for Rimmer and Garrett’s breach of their contract with White should have been determined by deducting the cost of labor and materials from the total contract price.

While the facts of White are somewhat similar in the present case, we find a fundamental difference between White and the present case. In White, the plaintiff contracted to perform services only by digging, loading, and hauling dirt from land owned by defendant to defendant’s construction site. In the present case, Terrell was not only performing a service by digging and loading dirt, but also was furnishing the dirt from his land.

We find that the circumstances of this case do not fall entirely within the rule of either White or Friedman, but rather both formulas must be considered to determine the damages suffered by Terrell. The subject contract envisioned both a furnishing of services and a sale of commodity. The trial court was correct in following White in arriving at the profit anticipated by Terrell from his services of digging and loading. However, since Terrell also was obligated to furnish the necessary dirt from his pit as part of the contract price and has not been required to excavate this quantity of dirt from his property because of the breach of contract, then the market value of his dirt, if any, should also be deducted in the calculation of damages.

We do not find that there is sufficient evidence in the record to show what the market value was, if any, of dirt in place at the location of Terrell’s property at the time of the breach.

It is difficult for this court on appeal to determine the proper factors which should enter into the court’s valuation of the dirt in the present case. Under La.C.C. Art. 1934, where the object of the contract is anything but the payment of money, the damages due the creditor for its breach are the amount of the loss he has sustained and the profit for which he has been deprived. The primary aim or principle of the law of damages for breach of contract is to place the plaintiff in the same position in which he would have been if the contract had been fulfilled, or to place the plaintiff in the position which he would have occupied had the breach of the contract not occurred. Friedman Iron and Supply Company v. J.B. Beaird Company, supra.

In order to restore Terrell to the position in which he would have been had the contract been performed and to determine the proper measure of damages, we find that the present case must be remanded to the trial court for its further consideration.

Upon remand, the trial court should adduce evidence to show whether there is a determinable value for dirt in place. Should it be determined that such a value exists, then this amount should be deducted in addition to the costs of digging and loading to arrive at the net damages suffered by Terrell.

For the foregoing reasons we affirm the judgment insofar as it declares Security National Bank liable for damages for breach of its contract with Terrell; we reverse and set aside the judgment insofar as the amount of damages awarded is concerned, and we remand the case to the First Judicial District Court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed equally between appellant and appellee. All other costs are to await final disposition of this cause.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.