Graziani v. Elder & Walters Equipment Co.

• Citation: 209 La. 939,25 So.2d 904
• Decision Date: 18 March 1946
• Docket Number: 37863.
• Court: Supreme Court of Louisiana
• Parties: GRAZIANI v. ELDER & WALTERS EQUIPMENT CO., Inc.

25 So.2d 904

209 La. 939

GRAZIANI v. ELDER & WALTERS EQUIPMENT CO., Inc.

No. 37863.

Supreme Court of Louisiana

March 18, 1946

Rehearing Denied April 22, 1946.

Appeal from Civil District Court, Parish of Orleans Harold A. Moise, judge.

James H. Drury, of New Orleans, for plaintiff-appellant.

Montgomery Fenner & Brown, of New Orleans, for defendant-appellee.

HAMITER Justice.

Plaintiff Vincent Graziani, operating under the trade name of Action Cartage Company, sold and transferred to defendant Elder and Walters Equipment Company, Inc., on terms of credit all of his motor trucks, trailers and equipment, together with an Interstate Commerce Commission Carrier's Permit or Certificate, for a total consideration of $15,000. On defendant's failure to pay more than $7,000 of the agreed purchase price plaintiff instituted this suit to recover the balance or $8,000.

After the commencement of the litigation but before trial, the litigants entered into and filed in the record a stipulation declaring that under the regulations of the Office of Price Administration the transferred trucks, trailers and equipment had a ceiling price of $9,268.57. At the same time defendant paid to plaintiff the sum of $2,268.57, being the difference between the amount previously paid ($7,000) and the mentioned ceiling price. Thus, of the agreed total consideration for the sale ($15,000) there remains unpaid $5,731.43, the amount now in contest herein. Plaintiff maintains that it is the value of the Interstate Commerce Commission Permit or Certificate included in the sale transaction; defendant denies owing it.

Subsequent to the confection and filing of the mentioned stipulation, one Joseph Tedesco intervened in the suit, claiming ownership of the permit by virtue of a written agreement existing between him and plaintiff.

The district court, following a trial of the merits, rendered judgment in favor of the defendant ordering the dismissal of the demands of plaintiff at his costs. Further, it ordered that the intervention of Joseph Tedesco be maintained to the extent of ordering the return to him of the Intexstate Commerce Commission Permit. From the judgment plaintiff appealed.

As before shown, plaintiff has received full value for the trucks trailers and equipment sold and transferred to defendant (he has been paid the OPA ceiling price), and the controversy (since the execution and filing of the stipulation) concerns only the claim for the carrier's permit. One of the contentions made by defendant in denying the asserted indebtedness is that plaintiff was without right to sell and transfer the permit. In this defense we think there is merit. The permit was held by plaintiff under a written agreement with Joseph Tedesco, of date January 23, 1941, which provided for its transfer to plaintiff on the payment of...