Chappuis & Chappuis v. Kaplan

• Decision Date: 05 May 1930
• Docket Number: 30425
• Citation: 170 La. 763,129 So. 156
• Parties: CHAPPUIS & CHAPPUIS v. KAPLAN
• Court: Louisiana Supreme Court

129 So. 156

170 La. 763

CHAPPUIS & CHAPPUIS v. KAPLAN

No. 30425

Supreme Court of Louisiana

May 5, 1930

Rehearing Denied June 2, 1930

Appeal from Fifteenth Judicial District Court, Parish of Acadia; W W. Bailey, Judge.

Action by Chappuis & Chappuis against Abrom Kaplan.Judgment for plaintiff, and defendant appeals.

Affirmed.

W. J Carmouche, of Crowley, for appellant.

Pugh & Buatt, of Crowley, for appellee.

ST.PAUL, J. O'NIELL, C. J.

OPINION

ST.PAUL, J.

Plaintiffs are attorneys at law and herein sue for their fee in defending the case of La. State Rice Milling Co. v. Kaplan, 168, La. 50, 121 So. 188.

I.

That suit was one against this defendant alone to compel him to accept title to, and pay the price for, certain property; and was decided favorable to this defendant.

The defendant excepted for "non-joinder" of a necessary partydefendant, to wit, one Leo Felman, whom defendant claims to have been associated with him in the agreement to purchase said property and to have been interested therein to the extent of one- half.

In Gill et al. v. City of Lake Charles,119 La. 17, 43 So. 897, it was held that, since our statutory law provided no rules for determining when parties may or may not be joined, either as plaintiff's or defendants, we must have recourse in such matters to rules of the common law.

The rule of the common law is that, where the nonjoinder of partiesdefendant does not appear in the face of the pleading, a demurrer will not lie for that ground.47 Corp. Jur. 204;21 R. C. L. 524.

Again, it is the general rule that the nonjoinder of necessary parties in an action can be taken advantage of only by plea in abatement or answer, unless it appears on the face of the complaint.21 R. C. L. 544;1 R. C. L. 53, 54.

Hence, where the nonjoinder, of necessary parties, either plaintiff or defendant, does not appear on the face of the pleadings, evidence must be adduced, either on the exception or at the trial, that there are such necessary parties who have not been joined.

In the case before usplaintiffs sue this defendant as their sole employer, and hence on the face of the pleadings it does not appear that there is any want of a necessary partydefendant.And, so far as this record shows, it does not appear that any evidence was offered by the defendant, when his exception was tried, in support of his plea that said Felman was a necessary partydefendant.So that the exception was properly overruled at the time.

Nor does the evidence taken at the trial of the merits support such plea.Plaintiffs' testimony is clear and uncontradicted that they were employed by Kaplan alone, and knew nothing of Felman's interest in the case at the time, nor until some time afterwards; nor did they know the extent of Felman's interest until after the case was finally decided.Nor does the fact that the agreement to purchase was signed by Kaplan "for himself and others" alter the situation in any way.If he was acting for an undisclosed principal, he was personally liable; nor does the simple notation on the lower corner of the instrument "Kaplan-Felman" tend to disclose that Felman was the "others" for whom Kaplan was acting, especially as on the reverse of the instrument he signs an additional clause simply "A. Kaplan" without the least intimation that he is acting for any one but himself, and still later signs a modification of the agreement which he calls "my contract."

Hence we conclude that plaintiffs wereemployed by defendant alone, and had no contractual relations whatever with Felman.If the latter had any interest in the case, that was a matter between him and Kaplan, and not between him and these plaintiffs.

II.

This suit for $ 3,750, subject to a credit of $ 500 paid on account.The amount involved was approximately $...