Chalmette Petroleum Corporation v. Myrtle Grove Syrup Co., Inc.

• Decision Date: 31 October 1932
• Docket Number: 31577
• Citation: Chalmette Petroleum Corporation v. Myrtle Grove Syrup Co., Inc., 144 So. 730, 175 La. 969 (La. 1932)
• Court: Louisiana Supreme Court
• Parties: CHALMETTE PETROLEUM CORPORATION v. MYRTLE GROVE SYRUP CO., Inc. (R. R. BARROW, Inc., et al., Garnishees)

144 So. 730

175 La. 969

CHALMETTE PETROLEUM CORPORATION v. MYRTLE GROVE SYRUP CO., Inc. (R. R. BARROW, Inc., et al., Garnishees)

No. 31577

Supreme Court of Louisiana

October 31, 1932

Rehearing Denied November 28, 1932

Appeal from Seventeenth Judicial District Court, Parish of Terrebonne; Robert B. Butler, Judge.

Action by the Chalmette Petroleum Corporation against the Myrtle Grove Syrup Company, Incorporated, in which R. R. Barrow Incorporated, and another were garnisheed. From an adverse judgment, R. R. Barrow, Incorporated, appeals.

Affirmed.

Harris Gagne, of Houma, for appellant.

Ellender & Ellender, of Houma, and Monroe & Lemann and Walter J Suthon, Jr., all of New Orleans, for plaintiff in rule and appellee.

LAND J. ST. PAUL, J., takes no part.

OPINION

LAND, J.

In October, 1926, R. R. Barrow, Inc., leased to the defendant, Myrtle Grove Syrup Company, Inc., the Myrtle Grove Plantation for a term of five years, and at an annual rental of $ 5,000; the lessee binding itself to pay also all state and parish taxes due by the leased property.

In January, 1928, R. R. Barrow, Inc., brought suit against the Myrtle Grove Syrup Company, Inc., its lessee, for unpaid taxes of 1927 amounting to $ 1,080, as well as for $ 2,000 of the rent, which defendant company had failed to pay, claiming a lessor's lien and privilege on all property of defendant company found on the leased premises.

In its petition for provisional seizure, R. R. Barrow, Inc., alleged that "said plantation is a going concern with mules and livestock to be cared for, cane to be planted, and produce to be shipped; that it (R. R. Barrow, Inc.) stands ready and willing to furnish and advance any and all funds which may be necessary to care for and cultivate said property pending a hearing hereof; and that said funds should be charged and taxed as costs."

In the order of the lower court, directing that a writ of provisional seizure issue, it is also directed as follows: "* * * Let the sheriff cultivate and care for the plantation and the seized property as a prudent administrator; let him be authorized to borrow, at not more than 5% interest, such sums as may be necessary to be advanced to cultivate and care for the said plantation and the seized property, to be taxed as costs of this litigation, or against the crops, the property, or either or both the litigants as may be determined by any final judgment herein."

February 8, 1928, judgment by confession was rendered in favor of R. R. Barrow, Inc., against the Myrtle Grove Syrup Company, Inc., lessee, in the full sum of $ 3,080, with legal interest from judicial demand, January 18, 1928, and with recognition of the lessor's lien and privilege of R. R. Barrow, Inc., upon all property of defendant found upon the leased premises, and maintaining the writ of provisional seizure, and condemning defendant to pay all costs.

It was further ordered that the lease on the Myrtle Grove Plantation be annulled for its unexpired term, because of defendant's failure to meet and keep its terms, in defaulting in payment of rent when due.

In execution of this judgment, all of the property on the leased premises was seized under a writ of fieri facias and was sold, March 24, 1928, at public auction to R. R. Barrow, Inc., the last and highest bidder, for $ 8,000 cash, "which sum," as stated by sheriff in the proces verbal of sale:

"The said purchaser paid into my hands in cash and which I have distributed as follows, to-wit:

"I have paid clerk's costs, $ 14.00

"I have paid cost of advertisement, $ 29.40

"I have paid taxes for the year, $ 156.97

"I have paid sheriff's costs, $ 89.87.

"I have paid for labor advances, $ 4,676.95 -- leaving a balance of Three Thousand, Thirty-two and 81/100 Dollars, which balance I have paid into the hands of Harris Gagne, Attorney for R. R. Barrow, Inc., and which amount I have duly credited to the writ which I returned not fully satisfied."

The writ called for the sum of $ 3,080, with 5 per cent. interest from January 18, 1928, until paid, with recognition of the lessor's lien and privilege upon all property of defendant found on the leased premises.

On February 21, 1929, the plaintiff, Chalmette Petroleum Corporation, obtained judgment on a promissory note against defendant, Myrtle Grove Syrup Company, Inc., in the sum of $ 2,523.75, with 6 per cent. per annum interest thereon from December 28, 1927, until paid, and 10 per cent. on the amount of principal and interest as attorney's fees, and all costs.

On June 4, 1929, the Chalmette Petroleum Corporation issued a writ of fieri facias in execution of its judgment, and garnisheed R. R. Barrow, Inc., and F. X. Bourg, sheriff of Terrebonne parish, as third persons who were indebted to the Myrtle Grove Syrup Company, Inc., or who had property or effects in their possession or under their control belonging to that company.

In answer to the interrogatories propounded by the plaintiff, Chalmette Petroleum Corporation, R. R. Barrow, Inc., garnishee, stated that:

"The proceeds of said sale were distributed, by returning to R. R. Barrow, Inc., the advances made to the Sheriff to cover plantation pay rolls filed herewith, marked and dated, and for amounts following, to-wit: * * * aggregating $ 4,679.95, which amounts were advanced to the Sheriff, on order of the Court in the above entitled and numbered cause, together with the sum of $ 298.25, as shown by ten checks of Plaintiff against the Bourg State Bank and Trust Co., to the order of F. X. Bourg, Sheriff, as follows, to-wit: * * * aggregating $ 4,978.20.

"Amount of Adjudication

$ 8,000.00

"Advances returned

4,978.20

Leaving

$ 3,021.80

-- which was applied to credit of writ as shown by Sheriff's return."

In answer to the interrogatories propounded by the plaintiff, the Chalmette Petroleum Corporation, F. X. Bourg, sheriff, responded as follows:

"I had occasion to seize certain property in suit No. 9512, which was adjudicated to R. R. Barrow, Inc., for the sum of Eight Thousand Dollars. The price of the adjudication was not paid to me, but as I recollect only the costs of court were paid, the balance of the purchase price was retained by the seizing creditor to pay and discharge certain advances claimed to have been made for labor, and in satisfaction of the writ issued in said suit. As all of which will be seen by reference to my proces verbal filed in said suit. I did not advance money for labor, nor was I ever consulted about it.

"I made no payment for labor and kept no account thereof. I was simply told by Mr. Harris Gagne, attorney of the seizing creditor, that the sum of $ 4,676.95 was spent for labor by his client. I had nothing at all to do with the distribution of said sum.

"I had nothing to do with the payment of items for $ 4,676.95, and I cannot state what connection or relation, if any, the payment for said labor had to do with the property under seizure.

"As stated above, Mr. Gagne, attorney, told me that said amount was paid for labor by his client and I took his word for it. No money was paid to me for account of any labor or other expenses incurred in said seizure other than court costs."

On October 7, 1930, Chalmette Petroleum Corporation filed a rule on R. R. Barrow, Inc., to have its answers to the interrogatories and its denial of any indebtedness to the defendant, Myrtle Grove Syrup Company, Inc., set aside and to have judgment rendered against the garnishee in favor of mover in rule for the full amount of $ 2,523.75, with interest thereon at the rate of 6 per cent. per annum from December 28, 1927, until paid, and 10 per cent. upon the aggregate amount of principal and interest, as attorney's fees, and all costs of suit.

In its rule to traverse the answers of the garnishee, Chalmette Petroleum Corporation alleges that:

"In its answer to the interrogatories propounded to it as garnishee, R. R. Barrow, Inc., has claimed and asserted that it made certain advances to the Sheriff for the Parish of Terrebonne to cover plantation payrolls and other unspecified items, in dates and amounts fully set forth in said answer, aggregating the sum of Four Thousand, Nine Hundered, Seventy-eight and 20/100 Dollars ($ 4,978.20); and the garnishee has claimed and asserted a right to charge these advances against defendant, Myrtle Grove Syrup Company Inc., and to apply these advances against the indebtedness of the garnishee to the defendant, amounting to Eight Thousand and 00/100 Dollars ($ 8,000)."

"Mover denies that the said amounts aggregating Four Thousand, Nine Hundred, Seventy-eight and 20/100 Dollars ($ 4,978.20), or any part thereof, were ever advanced or disbursed by garnishee, as set forth in the answer of the garnishee to the interrogatories herein; and mover avers that the answers of the garnishee are false and evasive in this respect, and mover accordingly has good reason to believe that the garnishee is indebted to the defendant in the said sum of Four Thousand, Nine Hundred, Seventy-eight and 20/100 Dollars ($ 4,978.20).

"In the alternative, and only if it be established that the garnishee actually made the advances for the plantation payrolls and other unspecified items, on the dates and in the amounts set forth in the answers of the garnishee, either in whole or in part, mover then avers that said advances and payments were not made for the account or benefit of defendant, Myrtle Grove Syrup Company, Inc., but were made for the working of the 1928 crop on the property of garnishee, R. R. Barrow, Inc., said property being then in the possession of garnishee, R. R. Barrow Inc., and the cultivation of said crop, which belonged to garnishee, R. R. Barrow, Inc., being for the account and benefit of said R. R....