Hebert & Damare v. Dupaty

• Decision Date: 01 March 1890
• Docket Number: 10,531
• Citation: 42 La.Ann. 343,7 So. 580
• Parties: HEBERT & DAMARE v. MAXIME DUPATY ET ALS
• Court: Louisiana Supreme Court

7 So. 580

42 La.Ann. 343

HEBERT & DAMARE v. MAXIME DUPATY ET ALS

No. 10,531

Supreme Court of Louisiana

March 1, 1890

APPEAL from the Twentieth District Court, Parish of Assumption. Guion, J.

L. M Folse & Sons and Pugh, Pugh & Marks, for Plaintiffs and Appellants.

W. E Howell, for Defendants and Appellees.

OPINION

MCENERY, J.

Since the submission of this case one of the plaintiffs, Hebert has died, and the duly appointed and qualified administrator of his succession has been made a party plaintiff and appellant, in the place of said deceased, Emile S. Hebert.

One of the defendants, Maxime Dupaty, kept a livery stable in the town of Napoleonville. He was a popular proprietor of the establishment, and did a thriving business. This fact induced the plaintiffs, Hebert & Damare, to purchase the outfit of the stable, consisting of horses, harness and vehicles.

The sale was perfected on the 9th of February, 1887. In the act of sale Dupaty leased the premises on which the stable was located for a term of five years to the plaintiffs, with the privilege of renewal. The following clause is in the lease: "The lessor binds and obligates himself not to keep a public stable during the term of said lease, either directly or indirectly, within a radius of six miles of Napoleonville."

Dupaty sold to Dugas, another defendant, certain property in the town of Napoleonville, which included that leased by Hebert & Damare from Dupaty. Dugas sold his property to William L. Phelps, the last defendant. Phelps and Dugas are brothers-in-law. In the act of sale by Dupaty to Dugas, plaintiff's lease is referred to, and it is stipulated as an additional consideration of the sale, that the vendor, Dupaty, sold to Dugas, his heirs and assigns, the revenues of the lease during its duration, and all other benefits arising therefrom. Phelps has collected the revenue from the leased premises of the plaintiffs.

These acts of sale and lease were recorded, and the parties all knew of the terms and conditions of the sale from Dupaty to the plaintiffs. Phelps erected, established and conducted a livery stable directly in front of the stable of plaintiffs. They are rival establishments.

This suit is brought to recover $ 10,000 damages against defendants for the establishment and conducting of said livery stable business. In substance the allegations in the petition are that Dugas and Phelps having full knowledge, due notice, and being well aware of the lease of petitioners and all of its stipulations, as well of the sale by the said Maxime Dupaty to petitioners, that the said Dupaty, who was bound not to keep, during the pendency of the said lease, a public livery stable, either directly or in directly within a radius of six miles of the town of Napoleonville, went to the said Dupaty and entered into a conspiracy with him, and they colluded together to crush and ruin the petitioners in the business of public livery stable, by erecting, establishing and conducting the public livery stable on the premises purchased by said Phelps from Dupaty.

Testimony was offered and admitted to show that the "good will" of the livery business carried on by Dupaty was also sold to the plaintiffs. It was admitted, that the sale from Dupaty to plaintiffs enumerates every item, with a valuation, sold to plaintiff. Nothing is said in the act of sale of the "good...