Hayes v. Muller

• Decision Date: 15 January 1971
• Docket Number: No. 3239,3239
• Citation: 243 So.2d 830
• Parties: Jack A. HAYES and Milton H. Knox, Plaintiffs-Appellants, v. Fritz J. MULLER, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 830

243 So.2d 830

Jack A. HAYES and Milton H. Knox, Plaintiffs-Appellants, v. Fritz J. MULLER, Defendant-Appellee.

No. 3239.

Court of Appeal of Louisiana, Third Circuit.

Jan. 15, 1971.

Rehearing Denied Feb. 24, 1971.

Writ Refused March 24, 1971.

Domengeaux, Wright & Bienvenu, by Mark Bienvenu, Lafayette, Edwards, Edwards & Broadhurst, by Nolan J. Edwards, and Pugh, Buatt, Landry & Pugh, by Lawrence G. Pugh, Jr., Crowley, for plaintiffs-appellants.

Liskow & Lewis, by Austin W. Lewis, New Orleans, and Richard E. Gerard, Lake Charles, for defendant-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

HOOD, Judge.

Plaintiffs, Jack Hayes and Milton Knox, instituted this suit for a money judgment against defendant, Fritz J. Muller, based on quasi contract, quantum meruit and/or defendant's unjust enrichment. The suit was later dismissed as to Hayes, leaving Knox as the sole plaintiff. Judgment was rendered by the trial court maintaining an exception of prescription of ten years filed by defendant, and dismissing the suit. Plaintiff Knox has appealed.

The issues presented here are: (1) Was the prescription pleaded by defendant interrupted by the filing of another suit by plaintiff in 1960? (2) Did prescription begin to run in October, 1953, as contended by defendant, Or in the early part of 1959, as contended by plaintiff? (3) Was the prescription pleaded by defendant interrupted by fraud and deceit allegedly practiced by defendant Muller?

Hayes and Knox instituted another suit against Muller in 1960 relating to this transaction, and some of the issues presented in that suit were considered by us and by the Supreme Court before the present action was instituted. See Hayes v. Muller, 146 So.2d 176 (La.App. 3 Cir. 1962); Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); Hayes v. Muller, 248 La. 934, 183 So.2d 310 (1966). We refer to the opinions rendered in those cases for a more complete statement of the facts which are pertinent to the issues presented here.

On October 16, 1953, defendant Muller acquired from Etta Stamm Sweeney and others an oil, gas and mineral lease affecting lands in Acadia Parish, Louisiana. He sold that lease to Louisiana Gas Corporation on December 10, 1959.

Hayes and Knox filed suit against Muller on June 4, 1960, alleging that prior to the acquisition of the Sweeney lease plaintiffs and defendant had entered into an oral contract of joint venture, under the terms of which all of the parties were to share equally in the loss sustained or profits derived from the purchase and sale of certain oil leases and royalties, and that the Sweeney lease was acquired pursuant to the terms of that agreement. They alleged that the lease was sold by Muller at a substantial profit, and that under the provisions of the above-mentioned contract plaintiffs are entitled to a share of the profits derived from the purchase and sale of that lease. In that suit plaintiffs demanded specific performance of the oral contract of joint venture. Defendant Muller filed an exception of no cause or right of action, and by judgment rendered on December 16, 1963, the Louisiana Supreme Court maintained that exception and dismissed the suit. See Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963).

On December 23, 1963, plaintiffs filed a 'Supplemental and Amending Petition' in the same suit, demanding judgment against Muller on quantum meruit for services alleged to have been rendered by them for Muller, and for advice allegedly given by them to said defendant, prior to the acquisition of the Sweeney lease. The defendant filed a motion to strike the Supplemental and Amending Petition, and our Supreme Court, by judgment rendered on February 23, 1966, granted that motion and dismissed the Supplemental and Amending Petition filed by plaintiffs. See Hayes v. Muller, 248 La. 934, 183 So.2d 310 (1966).

In the last-mentioned decision the Supreme Court held that since the original suit had been dismissed the case was at an end, there was no petition for plaintiffs to amend, and plaintiffs' remedy was to file a new suit. In that connection, the court said:

'Here, there was no petition for plaintiffs to amend and no suit in which an alternative demand could be made. For that suit had previously been dismissed; the judgment had become final and the main demand was no longer extant so that the subsequent demand could not procedurally become an alternative demand. * * * And when the action was dismissed that was the end of the case; it was then finally closed and, when plaintiffs instituted the present demand, they could not procedurally assert it by way of a so-called amending petition. Their remedy is to file a new and separate suit.'

On March 11, 1966, within three weeks after the above-mentioned decision was rendered by the Supreme Court, plaintiff filed the instant suit seeking to recover from defendant Muller on the theory of Quasi contract, quantum meruit and/or defendant's unjust enrichment. Defendant filed an exception of prescription, asserting that this action is prescribed by the liberative prescription of ten years as provided in Article 3544 of the Louisiana Civil Code. He alleged in the exception that the services were rendered and the advice was given during and before the month of October, 1953, which was more than ten years prior to the time the petition was filed in this action, and that the cause of action asserted here thus has prescribed.

When the exception of prescription came up for trial defendant offered and filed in evidence the deposition of plaintiff Knox. Plaintiff testified in that deposition that in 1953 a well was drilled in search of oil or gas at a location in Acadia Parish near the Sweeney property. It was known as the Petitjean No. 1 Well. Knox had access to the logs which were run on that well, and on October 8, 1953, Knox advised defendant Muller that the Petitjean well was possibly productive. On October 16, 1953, Knox advised Muller that there was 'close to 100 feet of sand in the well,' and he recommended to Muller that he buy anything he could buy in that area, including the Sweeney lease. Acting upon that advice, Muller bought the Sweeney lease that same day, October 16, in Muller's name .

Muller did not conceal from Knox the fact that he had acquired the Sweeney lease. Knox, in fact, concedes that he learned that Muller had acquired the lease within a few weeks after that transaction took place, and that he had Hayes talked to Muller about it. He alleges that on that occasion Muller advised them 'that this matter would be discussed at a later date and as activity in the area was at that time dormant petitioners did not again question defendant concerning this lease for several months.' Plaintiff alleges that he again talked to Muller about the lease during the early part of 1959, and that Muller again advised 'that the matter would be discussed at a later date.'

Plaintiff contends that the Sweeney lease was purchased by Muller pursuant to Knox's advice and recommendations, and because of the confidential geological information which Knox had given to Muller. He also contends that Muller acquired the lease pursuant to a prior agreement between Knox, Hayes and Muller that they were to share equally in the costs and profits of that venture.

The trial judge concluded that the ten year prescription period provided by LSA-C.C. art. 3544 began to run on October 16, 1953, that being the date on which Knox disclosed to Muller the confidential geological information relating to the Petitjean well and the prospects of producing oil from the surrounding property. The trial judge also held that the filing of the original suit by Hayes and Knox on June 4, 1960, seeking specific performance of the oral contract of joint venture, did not interrupt the running of prescription against Knox's present suit filed on March 11, 1966, in which he seeks relief on Quasi contract, quantum meruit or unjust enrichment.

The parties apparently agree that the ten year prescription provided in LSA-C.C. art. 3544 applies here. They disagree, however, as to whether the running of that prescription has been interrupted or as to when the prescriptive period began to run.

Defendant argues that prescription runs against a Cause of action, and that an earlier suit stating one cause of action will Not interrupt the running of prescription against a subsequent suit setting forth a separate and different cause of action. Applying that rule to the issues presented here, defendant contends that the original suit instituted by plaintiff against Muller was for specific performance of a contract, whereas the instant suit is based on a distinctly separate and different cause of action, that being a demand for a money judgment based on quantum meruit. He takes the position that since the two suits are based on different causes of action, the filing of the first one did not interrupt the running of prescription as to the present suit.

In support of that argument defendant cites a number of authorities, the principal ones being Hope v. Madison, 194 La. 337, 193 So. 666 (1940); Callender v. Marks, 185 La. 948, 171 So. 86 (1936); Seavers v. Journee, 11 La.Ann. 143 (1856); Liles v. Barnhart, 152 La. 419, 93 So. 490, (1922); De Bouchel v. Koss Construction Co., 177 La. 841, 149 So. 496 (1933); Leadman v. First National Bank, 198 La. 466, 3 So.2d 739 (1941); LSA-C.C. arts. 3534, 3536, 3538 and 3544; and LSA-R.S. 9:5801.

Plaintiff Knox argues that the two suits instituted by him and by Hayes were not based on separate causes of action. He takes the position that the only difference between the suit which was instituted in 1960 and the present suit is in the 'theory of recovery.' He contends that the filing of the original suit had the effect of apprising Muller of all of the facts and circumstances supporting plaintiffs' claim in the present suit, and that the former suit thus interrupted the running of prescription against...