Doll v. Albert Weiblen Marble & Granite Co.

• Decision Date: 26 March 1945
• Docket Number: 37537.
• Citation: 207 La. 769,22 So.2d 59
• Court: Louisiana Supreme Court
• Parties: DOLL v. ALBERT WEIBLEN MARBLE & GRANITE CO., Inc.

22 So.2d 59

207 La. 769

DOLL v. ALBERT WEIBLEN MARBLE & GRANITE CO., Inc.

No. 37537.

Supreme Court of Louisiana

March 26, 1945

Edward Alexander Parsons, of New Orleans, for Emile B. Doll, plaintiff-appellant.

Edwin J. Prinz, of New Orleans, for Albert Weiblen Marble &amp Granite Co., Inc., defendant and appellee.

FOURNET Justice.

This is a sequel to the case of Doll v. Firemen's Charitable and Benevolent Association of New Orleans, La.App., 8 So.2d 156 wherein the plaintiff in this case was denied recovery of a commission allegedly due him on a quantum meruit basis for services rendered in securing a ten-year lease on property belonging to the association and it is now before us for consideration on a writ granted the plaintiff to review the judgment of the Court of Appeal for the Parish of Orleans reversing the judgment of the district court and denying his right to recover any amount from the defendant, the Albert Weiblen Marble & Granite Company Inc., for which company the lease forming the basis of the former suit was secured. La.App., 17 So.2d 313.

Some time in the spring of 1940 the Albert Weiblen Marble & Granite Company, Inc., having sold the realty upon which its business had been conducted to a war industry, was desirous of leasing property owned by the Firemen's Charitable &amp Benevolent Association of New Orleans situated in the vicinity of City Park so, after consultation with its attorney, Edward Rightor, and at his suggestion that the plaintiff was the proper party to handle the matter because of his acquaintance with the officers of the association, the defendant employed the plaintiff's services to that end. Mr. Doll secured the association's agreement to lease the property to the defendant on terms and conditions entirely satisfactory to both parties and the defendant's attorney, Mr. Rightor, drew up the lease. Before it was signed, however, the defendant's attorney, in the presence of the president and vice-president of the company, asked the plaintiff whether he 'had made himself safe on his commissions' (no mention having been made by either of the parties as to what remuneration Mr. Doll would receive for his services at the time of his employment), and was informed by Mr. Doll that the firemen's association had agreed to pay his commission. After demand for payment had been refused by the association, Mr. Rightor prepared and filed a suit against the association for Mr. Doll for the recovery of this commission, the same being based on a quasi contract. This suit was dismissed by the trial judge when he maintained the association's defense that it had never employed the plaintiff for the purpose of negotiating the lease and had never done or said anything that would lead him to believe he was so employed by the association. The Court of Appeal for the Parish of Orleans in reviewing the case stated that custom cannot replace the law and that Mr. Doll would have to look to his employer, for whom he was at all times acting exclusively, and sustained the judgment of the trial judge. Under the facts as found by the appellate court, we declined to grant writs to review its judgment.

Following this decision the plaintiff instituted the instant suit against the Weiblen company, alleging his oral contract of employment for the purpose of securing the lease from the firemen's association and his success in that respect. In its answer the defendant admitted the execution of the lease, its contents, and that the fee for such services is usually fixed at 5% of the total amount of the rentals in the lease, but denied the alleged employment of the plaintiff and the services rendered by him in connection with the procuration thereof. The defendant then, inconsistent with its denials, pleaded specially that it had been agreed between it and the plaintiff that no commission would be paid by the defendant, the plaintiff to secure this amount from the firemen's association, the owner of the property.

The trial judge was of the opinion that the defendant, having employed the plaintiff to perform a certain and definite task which had been done to its entire satisfaction, could not, under the equitable maximum that no one should enrich himself at the expense of another, accept those services without compensating the plaintiff therefor, and rendered judgment against the defendant in the amount of $600, with legal interest from the date of judicial demand until paid.

The Court of Appeal for the Parish of Orleans, applying the provisions of Article 2991 of the Revised Civil Code to the effect that a procuration is gratuitous unless there has been a contrary agreement, reversed the judgment of the trial court and dismissed plaintiff's suit on the ground that there could be no liability on the part of the defendant company because the agency was gratuitous, the plaintiff, although the services exacted of him by his employer were complete, having told the attorney of the defendant company in the presence of its officers, prior to the time the lease was confected, that the firemen's association had agreed to pay his commission. It was to review this judgment that we granted the writs in the instant case.

We do not think this case presents factual issues controlled by Article 2991 of the Revised Civil Code, but, rather, that it is governed by the jurisprudence of the courts of this state to the effect that where one employs the services of another without specifying what compensation will be paid therefor, or where one avails himself of the services of another in the performance of a task, he is bound to compensate the person so employed or who performs such a service. Salter v. Tourne, 11 La. 99; Giraghty v. Saulet, 18 La. 539; Hillman v. Cage, 6 Rob. 499; Camfrancq v. Pilie, 1 La.Ann. 197; Waterman v. Gibson, 5 La.Ann. 672; Beall v. Van Bibber, 19 La.Ann. 434; Succession of Pereuilhet, 23 La.Ann. 294, 8 Am.Rep. 595; Craven v. Board of Levee Commissioners, 51 La.Ann. 1267, 26 So. 104; Mugnier v. Dendinger, 104 La. 767, 29 So. 345; Succession of Palmer, 137 La. 190, 68 So. 405; Clark v. City of Opelousas, 147 La. 1, 84 So. 433; Kernaghan & Cordill v. Uthoff, 180 La. 791, 157 So. 595; Burk v. Livingston Parish School Board, 190 La. 504, 182 So. 656; Hinkle v. City of West Monroe, 196 La. 1078, 200 So. 468; and Mobley-Rosenthal, Inc., v. Weiss, La.App., 152 So. 589. This jurisprudence is founded on the moral maxim of the law that no one ought to enrich himself at the expense of another. Article 1965 of the Revised Civil Code.

The defendant now concedes the plaintiff was employed by it to secure the lease and that this task was completed by the...