Arledge v. Bell

• Decision Date: 23 January 1985
• Docket Number: No. 16706-CA,16706-CA
• Parties: Alvin J. ARLEDGE as Administrator of the Succession of Joseph Alton Arledge, Plaintiff-Appellee, v. Arlen C. BELL, Defendant-Appellant. 463 So.2d 856
• Court: Court of Appeal of Louisiana — District of US

Page 856

463 So.2d 856

Alvin J. ARLEDGE as Administrator of the Succession of

Joseph Alton Arledge, Plaintiff-Appellee, v. Arlen C. BELL, Defendant-Appellant.

No. 16706-CA.

463 So.2d 856

Court of Appeal of Louisiana,

Second Circuit.

Jan. 23, 1985.

Dimos, Brown, Erskine, Burkett & Smith by Wade R. Baggette, Monroe, for defendant-appellant.

Howell H. Heard, West Monroe, for plaintiff-appellee.

Before HALL, MARVIN and SEXTON, JJ.

SEXTON, Judge.

Arlen C. Bell appeals a declaratory judgment finding that he is indebted to the succession of Joseph Alton Arledge in the amount of $9,000, representing the unpaid balance of a loan from decedent to defendant. We reverse and remand for a new trial.

Decedent, Joseph Alton Arledge, was a single man with no children who died intestate on November 17, 1982. One sister, Willie Travis Arledge Bell, predeceased Joseph. He was survived by one brother, Alvin Julius Arledge, the duly qualified administrator of this succession. Defendant herein is one of the three children born to Willie Bell and is therefore a nephew to the decedent.

The administrator of the succession brought suit for declaratory judgment separately against defendant, and his sister Charlotte Bell, seeking declarations of the amounts of their respective indebtedness to the succession. Arlen Bell's answer alleged that the transaction was a gift and, in the alternative, that if the initial transaction was characterized as a loan, the debt was extinguished by remission in a long distance telephone call between Arlen C. Bell and the decedent. In interrogatories which were admitted into evidence, appellant conceded that the money was originally advanced from his uncle as a loan. The cases were consolidated for trial. Judgment was rendered in favor of the succession and against both defendants. Only Arlen C. Bell has appealed.

At trial Arlen Bell testified that in 1980 he borrowed $10,000 from his uncle in order to place a down payment on a home for his family. He subsequently paid ten installments of $100 each on the loan, reducing the unpaid balance to $9,000.

On appeal, defendant urges the applicability of LSA-C.C. Art. 1888, et seq., ^* claiming that the debt had been remitted by his uncle.

All that is required under the remission articles is a determination that the creditor intended to remit his claim or that he has estopped himself to claim the contrary. Cowley Corporation v. Shreveport Packing Co., 440 So.2d 1345 (La.App. 2d Cir.1983), writ denied, 444 So.2d 122 (La.1984). While the remission of a debt cannot be revoked by a creditor, remission is never presumed unless it clearly appears that the creditor intended it. The burden of proving remission, express or tacit, rests with those claiming the benefit. Cowley, supra; Succession of Martin, 335 So.2d 494 (La.App. 2d Cir.1976), writ denied, 337 So.2d 516 (La.1976). No particular form for remission is necessary and the remission may either occur by oral declaration or in writing. Gulf States Finance Corporation v. Moses, 56 So.2d 221 (La.App. 2d Cir.1951).

At trial, defendant's attorney attempted to elicit testimony concerning the substance of the long distance telephone conversation. Counsel for the succession objected on hearsay and relevancy grounds. The objection was sustained, and the evidence was admitted by proffer. Appellant contends that the trial court erred in refusing to admit and consider this evidence.

In regard to his relevancy argument, appellee contends that LSA-C.C. Art. 1536 precludes the admission of this evidence. Appellee claims that the alleged conversation relative to forgiveness of Arlen Bell's debt constituted a gift of a credit, an incorporeal thing. Thus, he asserts that LSA-C.C. Art. 1536, which stipulates formal requirements for the donation of incorporeal movables, is controlling, thus rendering appellant's evidence irrelevant.

Our initial inquiry, then, must be directed to the character of the transaction here involved to determine whether the formal requirements of Article 1536 are pertinent. It is clear from the testimony and answers to interrogatories of the defendant Arlen C. Bell that this transaction was originally intended to be a loan and not a donation. Therefore, if the deceased acted as the defendant asserts, that action forgave an existing obligation.

While the forgiveness of a debt may in some respects appear to be a donation because of the gratuitous intent manifested by the act of forgiveness, in specific terms it is the remission of a previous obligation. It therefore must be considered within the context of our law on remission.

As Professor Levasseur explains:

When remitting a debt, the creditor is usually motivated by a gratuitous intent (animus donandi). Such a gratuitous juridical act is tantamount to a donation and should, therefore, be subjected to the conditions of substance applicable to liberalities (collation, reduction, revocation ...). However, the conditions of form pertaining to donations are not applicable (LCC 1536 et seq).

A. Levasseur, Precis in Conventional Obligations: A Civil Code Analysis, at 84 (1980). Accord, S. Litvinoff, 6 Louisiana Civil Law Treatise: Obligations, Sec. 371 (1969). See also Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919).

The redactors comment (b) to the new Article 1888 is succinctly in accord with Professor Levasseur:

(b) Although remission is an act gratuitous in principle, it is considered a sort of indirect liberality not subject to the requirements of form prescribed for donations. See 4 Aubry et Rau, Cours de droit civil francais--Obligations 223 (Louisiana State Law Institute trans 1965); 2 Colin et Capitant, Cours elementaire de droit civil francais 403 (10th ed. 1953); 7 Planiol et Ripert, Traite pratique de droit civil francais 716 (2nd ed. 1954); 1 Litvinoff, Obligations 627-628 (1969). See also Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919); Reinecke v. Pelham, 199 So. 521 (La.App.Orl.1941). [Emphasis ours]

Therefore, while a remission may involve a donative intent on the part of the creditor, the authentic form requirements of LSA-C.C. Art. 1536 do not apply. A remission may be perfected by an oral agreement and appellant's evidence which sought to establish an oral remission was relevant.

We now turn to a consideration of the hearsay portion of the objection. Appellant argues that the conversation constituted a declaration against the decedent's interest and therefore fell within an established exception to the hearsay rule.

Appellant's assertion is correct. The general rule is that declarations of a party deceased are inadmissible if the same would be excluded as hearsay were he alive. Micheli v. Toye Bros. Yellow Cab Co., 174 So.2d 168 (La.App. 4th Cir.1965). However, such statements may be admitted into evidence under an exception to the hearsay rule if they constitute a declaration against the deceased's interest. Abunza v. Olivier, 230 La. 445, 88 So.2d 815 (1956); Wall v. Murrell, 280 So.2d 865 (La.App. 3rd Cir.1973). The court explained in Abunza that although a declaration against interest by a deceased is the weakest kind of testimony, it is admissible and does have some probative value. It must be scrutinized with great care, however, since it can be so easily fabricated, a fact which concerns the weight of the proof rather than its competency.

In summary, it is apparent that appellant's evidence was both relevant to his plea of remission, and fell within an established exception to...