Dugas v. Lewis-Chambers Const. Co., Inc

• Decision Date: 12 December 1938
• Docket Number: 17015
• Citation: 185 So. 59
• Court: Court of Appeal of Louisiana — District of US
• Parties: DUGAS v. LEWIS-CHAMBERS CONST. CO., Inc

185 So. 59

DUGAS v. LEWIS-CHAMBERS CONST. CO., Inc

No. 17015

Court of Appeal of Louisiana, Orleans.

December 12, 1938

Rehearing granted Jan. 10, 1939.

Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for appellant.

Carville & Carville, of Plaquemine, and DeLesseps Story Morrison, of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

Junior B. Dugas of Plaquemine, Louisiana, as the assignee of the Jumonville Pipe & Machinery Company, Inc., also of Plaquemine, brought this suit against the Lewis-Chambers Construction Company, Inc., for the sum of $ 698.30, the price of certain steel plates sold and delivered to the defendant by plaintiff's assignor. The defendant in its answer admitted that it owed plaintiff's assignor the amount claimed, but averred that Dugas "who nominally appears as plaintiff herein, is merely a person interposed for said Jumonville Pipe & Machinery Company, Inc., for the illegal purpose hereinafter set forth". It averred that the alleged assignment was a simulation and that the nominal plaintiff is an agent of the Jumonville Pipe & Machinery Company, against which it had a claim arising, ex delicto, in the sum of $ 4500, which it asserted as a reconventional demand. In the alternative, the defendant averred that if Junior B. Dugas be considered to be the real plaintiff it is nevertheless, entitled to plead its claim against the Jumonville Company "as a reconventional demand or as a plea of offset or compensation (3)5C up to an amount equivalent to the amount herein sued for by said plaintiff with reservation of defendant's rights against Jumonville Pipe & Machinery Company, Inc., as to the balance of said reconventional demand."

There was judgment below in favor of plaintiff as prayed for and against defendant dismissing its reconventional demand and plea in compensation. Defendant has appealed.

The first question to be considered is the validity of the assignment. Plaintiff attached to and made part of his petition a copy of an authentic act before John M. Carville, Notary Public for the parish of Iberville, dated April 28, 1937, whereby the Jumonville Pipe & Machinery Company, Inc., purports to sell the account sued on to plaintiff for the price and sum of $ 450 cash. On the trial of the case evidence was admitted over the objection of counsel tending to prove that the true consideration for the sale of the Jumonville claim was a credit due Dugas as commission for the purchase for its account of a certain tract of land in Plaquemine, Louisiana. The basis of counsel's objection to this testimony is the familiar rule to the effect that the allegata and probata must correspond. "Proof must correspond with allegations, and recovery cannot be had on cause of action not alleged, where objection to evidence on that ground is timely made." (Syllabus) H. P. Richard & Sons v. Director General of Railroads, 160 La. 1019, 107 So. 891.

In overruling counsel's objection to the admission of this proof the learned judge, a quo, held that, in view of article 1900 of the Revised Civil Code to the effect that "if the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration", parol evidence was admissible to prove the actual consideration of a sale attacked upon the ground of simulation. This ruling we believe to be correct. A contract is not void because of an erroneous description of the consideration and the true cause of the contract may be shown by any legal evidence, oral or written. This rule applies to authentic acts as well as private instruments. Helluin v. Minor, 12 La.Ann. 124; Delabigarre v. Municipality No. 2, 3 La.Ann. 230; Citizens Bank & Trust Company v. Willis, 183 La. 127, 162 So. 822. The parol evidence rule is no obstacle. Clark v. Hedden, 109 La. 147, 33 So. 116; Commercial Germania Trust & Savings Bank v. White, 145 La. 54, 81 So. 753; Cambon Bros. v. Suthon, 147 La. 66, 84 So. 496.

But, says counsel, there is no allegation of error in the act of sale by which plaintiff alleges he acquired the claim of his assignor, and that since that instrument declares that a cash consideration was given, he cannot be heard to say that any different consideration was given because of his failure to so allege. In Guaranty Bank & Trust Co. v. Hunter, 173 La. 497, 137 So. 904, we find the following page 906: "Counsel contends that the consideration recited in the act of dation en paiment differs essentially from that recited in the pleadings, and that, as there are no allegations of error in the act made in the answer, parol evidence is not admissible to eke out the consideration. "In our opinion, counsel's objection is without merit, as it is expressly provided in article 1900 of the Civil Code that: "If the cause expressed in the consideration (contract) should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.' "Necessarily parol evidence may be introduced to show the true cause. "Parol evidence, in such cases, is admitted, not against or beyond what is contained in the acts, as a contradiction of the clear recital, or legal meaning of the stipulations contained therein, but on the contrary, to give effect to the contract arising therefrom, by supplementing necessary information omitted therefrom, or to ascertain the true intent of the parties when the same is not clearly expressed or described therein. " "As thus understood and construed, the rule is not amenable to the charge that it tends to destroy or impair the sanctity or binding force of authentic acts, but on the contrary, it tends directly to enhance the validity and efficacy of such acts, by substituting light for darkness, certainty for obscurity, and truth for error.' Dickson v. Ford, 38 La.Ann. 736; Landry v. Landry, 40 La.Ann. 229, 3 So. 728; Mossop v. His Creditors, 41 La.Ann. 296, 297, 6 So. 134." See, also, Citizens' Bank & Trust Company v. Willis, supra, and Barre v. Hunter, La.App., 181 So. 674. It is true that in the Guaranty Bank & Trust Company Case the answer did contain allegations to the effect that the true consideration differed from that mentioned in the act of dation en paiment, whereas in the case under consideration plaintiff, in his pleadings, has repeated the recitals of the act of sale without allegation of error, however, since the issue of consideration was for the first time raised by defendant in its answer we do not believe plaintiff was under any obligation to file supplementary pleadings as the foundation of proof tending to show a different consideration, particularly in view of our practice which expressly excludes replication and rejoinder. Code of Practice, Article 329. We find no error in the ruling of the trial court concerning the admissibility of the evidence.

Counsel next challenges the effect of the proof in support of the validity of the assignment. The testimony concerning the consideration for the assignment as given by Frank H. Jumonville and Junior B. Dugas is as follows: The Chalmette Petroleum Corporation owned a tract of land in Plaquemine, Louisiana, which the Jumonville Pipe & Machinery Company, Inc., desired to purchase. The land was held for $ 8,000 which the Jumonville Company was either unwilling or unable to pay. Jumonville believed that Dugas could obtain the property at a lower price than the Jumonville Company could and, therefore, commissioned him to undertake the purchase, agreeing to pay him a commission equal to the difference between $ 5500, and the amount of the purchase price. Dugas communicated with the owners of the property and arranged to buy it for $ 5,000. The transaction was financed by the Iberville Trust & Savings Bank of Plaquemine, which loaned Dugas $ 5,000 on Jumonville's endorsement. Dugas acquired the property in his own name on January 27, 1937, and on the following day sold it to the Jumonville Company for the price he paid for it. Dugas was paid $ 50 in cash on account of his commission and the balance of $ 450 remained unpaid. Mr. R. B. Batson Secretary-Treasurer of the Chalmette Petroleum Corporation, corroborated the testimony of Jumonville and Dugas to the extent of saying that, in selling the property for the Chalmette Petroleum Corporation, he dealt only with Dugas and knew nothing of the Jumonville Company's interest in the transaction.

Defendant insists that this evidence indicates that Dugas is only a person interposed and not the real purchaser. In the first place it is pointed out that the agreement with respect to the commission was not in writing, which, it is said, is a suspicious circumstance, and furthermore, the property was conveyed by Dugas for $ 5,000 and not $ 5,500,...