Gonsouland v. Rosomano

• Decision Date: 15 March 1910
• Docket Number: 1,818.
• Citation: 176 F. 481
• Parties: GONSOULAND v. ROSOMANO.
• Court: U.S. Court of Appeals — Fifth Circuit

176 F. 481

GONSOULAND v. ROSOMANO.

No. 1,818.

United States Court of Appeals, Fifth Circuit.

March 15, 1910

This is an action at law for $5,000 damages, brought by Henry Gonsouland, a citizen of Mississippi, against Marco Rosomano a citizen of Louisiana.

The following are the material averments of the petition:

'That petitioner, as owner, acting in good faith, agreed to sell to the said Marco Rosomano the certain lot of ground, with all the buildings and improvements thereon, situated in the city of New Orleans, designated as lot No. 12 in square No 31, bounded by Sequin, Eliza, Bouny, and Evilina streets for the agreed price of $1,300 cash, clear of all costs and expenses, and in execution of said agreement to sell, and in completion thereof, petitioner, on the 5th day of December, 1905, signed the act of sale of said property as prepared by a notary public, and delivery thereof immediately passed to said defendant, who caused said act of sale to be registered in the office of the register of conveyances in the city of New Orleans.

'Petitioner represents: That, although he signed said act of sale and delivered over to defendant the said property, the said defendant failed and refused to pay petitioner the purchase price thereof, and he was forced to institute suit against said defendant to rescind said sale for the nonpayment of the purchase price in the civil district court of the parish of Orleans; said suit being No. 77,938 of the docket of said court. That, after trial of said cause on the merits, judgment was therein rendered in favor of petitioner and against the said defendant, condemning and ordering the said defendant to pay the purchase price, to wit, $1,300, less the sum of $40.80, costs incurred in the transfer of said property, with legal interest from December 5, 1905, until paid within 10 days from the finality of said judgment, and in the alternative, should the defendant fail to pay as aforesaid to plaintiff within said time, then, in that event, that plaintiff have judgment in the alternative against the defendant rescinding and canceling said sale of the property described in plaintiff's petition restoring the same to him as owner and reserving to petitioner his right of action to recover the rents of said property from December 5, 1905, until paid. That said judgment is final and executory. No appeal has been taken therefrom.

'Petitioner shows that the said defendant failed to comply with said judgment in suit No. 77,938 by paying the purchase price or to deliver to petitioner the possession of said property or the rents or revenues collected by him on said property; amicable demand having been made without avail.

'Petitioner further shows: That during the pendency of the aforesaid suit for the dissolution of the sale of said property, and before said suit was tried, the said Rosomano filed a suit in the Second city court of New Orleans, No. 1,731, based upon a clause which was inserted in said act of sale without the knowledge or agreement of petitioner, whereby he was to pay to defendant the sum of $4 per week contingent upon petitioner occupying said premises after the sale. That, the next day after signing the act of sale, defendant had petitioner served with a notice to vacate said property, which he refused to do. That defendant, as plaintiff in said suit, unlawfully caused to be issued and executed a writ of provisional seizure, and caused to be illegally seized the movable property of petitioner contained in the house at Eliza and Powder streets, of this city, to wit, the barroom fixtures, counter, liquors, whisky, and stock in trade, which property was not liable to seizure under said writ by law; the said Rosomano having no lien or privilege upon said property, placing a keeper in charge of petitioner's place of business, and closing the same for several days.

That petitioner, in order to preserve his good standing with his creditors, paid under protest the said claim for rent and all costs under said writ of provisional seizure, amounting to $31.80, notwithstanding that defendant had not paid the purchase price of said property, and was collecting rent on said property from the tenants of petitioner.

'Petitioner shows: That on December 18, 1905, defendant entered suit in the aforesaid Second city court, No. 1,722, against petitioner by rule for possession of said property described in his petition, and in the said act of sale as set forth in suit No. 77,938 of the docket of the civil district court, and while the said suit was still pending and untried on the merits. That petitioner refused to vacate said premises sold because the said defendant had failed to comply with his agreement by paying to petitioner the purchase price of said property. That in the said suit No. 1,722 of said city court the said defendant unlawfully caused to be issued and executed a writ of fieri facias or writ of ejectment, by which petitioner and his family were illegally ejected from said premises and threatened with arrest should any of them attempt to again enter said premises. That the keys of said premises were delivered to defendant under protest. That said defendant cleared said premises of the property of petitioner, consisting of his household furniture, kitchen utensils, and some clothing, throwing some of the furniture in the yard of said house, locking the doors and gates of said premises, denying petitioner the right to his property, retaining it, and taking into his possession the whole of the property, such as his parlor set, armoires, dressers, washstands, and bedroom sets, all of which property has never been returned to petitioner and is illegally detained or disposed of by said defendant to the injury and damage of petitioner. That by said illegal possession and detention petitioner has been illegally deprived of the use and enjoyment of his property, the comforts of his home, and forced to seek a home and shelter elsewhere, and to suffer the inconvenience and indignities of a public seizure. That some of the property seized was exempt under the law from seizure. That defendant maliciously and without probable cause took unlawful possession of petitioner's property over his protest, and deprived him of the whole of his property, which petitioner values at the sum of $450, as per itemized list of said property attached to this petition and made a part hereof for greater certainty.

'Petitioner shows: That, a short time previous to the sale of said real estate to defendant, he erected in front of and adjoining said property two large rooms, which he and his wife used for a restaurant, wired with electric lights, where he conducted and from which he derived a good revenue that assisted materially in sustaining himself, wife, and family from said restaurant. That said two rooms were a part of said property sold to defendant aforesaid, and were substantially built of good material and finished in a workmanlike manner, and the same cost petitioner in all the sum of $250, and in good order and condition when delivered to defendant. That said defendant after he took possession of said property tore down and destroyed said two rooms and appropriated the lumber and material thereof to his own use, as he did also all of the personal property of petitioner that was contained in the loft of said two rooms, which personal property is included and valued in the statement annexed to this petition. That, when defendant destroyed said two rooms and the property therein contained, he had no legal right to said property because the purchase price thereof had not been paid, and the suit in the civil district court was pending and undecided.

'Petitioner shows that he was obliged to hire the services of an attorney at law to protect his rights in the premises, and agreed to pay said attorney the sum of $250, which petitioner considers a reasonable charge; that petitioner was forced to pay rent for himself and family from February 2, 1906, up to the present time, at the rate of $20 per month; that there is due petitioner the sum of $180 for rent paid by him; that said defendant has collected rent on said property described in the act of sale for 14 months at the rate of $18 per month; that there is due petitioner for said rent $252, which said defendant refuses to pay after amicable demand; that petitioner has expended in costs in the suits in the Second city court of New Orleans, Nos. 1,731 and 1,722, the sum of $45, and he is entitled to recover same.

'Petitioner shows: That the unlawful issuance of the several writs in the suits Nos. 1,722 and 1,731 in the Second city court of New Orleans, and the illegal execution thereof at the instance of the defendant in seizing the property of the petitioner, and particularly said property not liable to seizure under the law and said writs, was done with the deliberate intention and with malice to vex, harass, and annoy petitioner without any probable cause or loss to said defendant. That the said defendant willfully sought to oppress petitioner, to destroy his credit with those with whom petitioner had business relations, and to humiliate him in the eyes of the community in which petitioner resided at the time, and was a direct means of forcing the petitioner to leave said community and to live in Gulfport, where petitioner is at present engaged in business. That the conduct of the said defendant in the said act of sale of the property herein described was fraudulent, and petitioner's signature obtained to said act of sale was by fraud and deceit. That the said defendant never evidenced any intention of carrying out his agreement to purchase said property by paying to petitioner the sum agreed upon or to comply with the judgment rendered in said case; but every...