Iennusa v. Rosato

• Decision Date: 30 April 1945
• Docket Number: 37569.
• Citation: 22 So.2d 467,207 La. 999
• Court: Louisiana Supreme Court
• Parties: IENNUSA v. ROSATO et al.

22 So.2d 467

207 La. 999

IENNUSA v. ROSATO et al.

No. 37569.

Supreme Court of Louisiana

April 30, 1945

Appeal from Civil District Court, Parish of Orleans; Paul E. Chasez judge.

Lester Pailet and Elias Bowsky, both of New Orleans, for plaintiff and appellant.

Legier McEnerny & Waguespack, of New Orleans, for defendants and appellees.

HAWTHORNE Justice.

This suit was instituted by plaintiff, Leon Iennusa, against Charles V Rosato et al., to have cancelled, annulled, and set aside an ex parte judgment rendered on July 22, 1940, in the proceeding entitled 'Succession of Josephine Montalbano Salvaggio', which judgment recognized the defendants as heirs of the late Mrs. Salvaggio and sent them into possession of her estate, and to have recognized a verbal agreement of copartnership which plaintiff alleges existed between him and the deceased Mrs. Salvaggio, and, as such partner, to be recognized as entitled to an undivided one-half interest in certain real estate situated in the City of New Orleans, purchased in decedent's name, and as the owner of one-half of a certain bank account deposited in the name of the deceased; and in the alternative, in the event the court should find that no partnership agreement had existed between said parties, to recover one-half of all the money saved by plaintiff and decedent as a result of their joint thrift, labor, and industry, namely the sum of $10,276.13, which is one-half the purchase price of the real estate acquired in the name of the decedent and one-half of the balance of the bank account deposited in her name.

The record in this case discloses that the plaintiff came to this country from Italy in the year 1907, and that until 1914 he worked for a railroad company, with the exception of several months during which time he was employed as a dishwasher in a hotel. In 1914 he became acquainted with one Mrs. Josephine Montalbano Salvaggio, who was at that time running a small business at 828 Bienville Street in the City of New Orleans. Shortly thereafter, plaintiff and the said Mrs. Salvaggio began living together as husband and wife out of wedlock, and continued to live so until 1935. In that year plaintiff married Mrs. Margaret White, with whom he lived in another section of the city until her death in 1938. Plaintiff then returned to live with Mrs. Salvaggio and remained with her until her death in 1940.

Between the years 1914 and 1935, three pieces of real estate were purchased in the name of Mrs. Josephine Montalbano Salvaggio, as follows: 825 Bienville Street, for the sum of $3800; 831-833 Bienville Street, for the sum of $8500, and 829 Bienville Street, for the sum of $8000. During the time these parties were living together, a bank account was opened in the name of Mrs. Josephine Montalbano, and upon her death there remained in this account on deposit with the Whitney Central Trust & Savings Bank, City Bank Branch, the sum of $252.26.

At the time plaintiff and Mrs. Salvaggio began to live together, he was about 27 or 28 years old, and she was about 48. She was unable to read and write or to speak English fluently. Plaintiff assisted Mrs. Salvaggio in the various businesses by collecting the rents and writing receipts, making repairs or contracting therefor, dealing with salesmen, working in the grocery store, peddling ice, coal, and wood, operating a rooming house for transients, paying taxes and insurance with funds derived from the businesses, and generally working with her in the management and control of the businesses and of all the rental properties.

After the death of Mrs. Salvaggio in June, 1940, her heirs were recognized and sent into possession of her estate by an ex parte judgment dated July 22, 1940, and thereafter, on August 22, 1940, Iennusa filed this suit against the heirs who had been recognized as such in the above mentioned judgment.

To plaintiff's petition defendants appeared and filed an exception of no cause or right of action, which was overruled. They then filed an answer which was a general denial of the allegations of the petition. Before trial on the merits, defendants also filed various pleas of prescription, but the record does not show any ruling on these pleas.

The case was tried on its merits, and thereafter, on February 7, 1944, judgment was rendered in favor of defendants, rejecting plaintiff's demands and dismissing the suit at his costs. From this judgment plaintiff has appealed to this court.

To establish his claim against this succession, plaintiff relies largely on his own testimony. On direct examination he testified as follows with regard to his alleged verbal agreement with Mrs. Salvaggio:

'A. * * * I said I would like to buy the place and she [Mrs. Salvaggio] said she did not want to sell, but she would like to get somebody to work and I decided to work there.

'Q. What was the agreement? A. The agreement was, we were to work together, pay the bills and the rest we were to save it up to use when we really needed it. We did not make an agreement to divide the money, or do anything with it, but just let it stay together.'

He contends that, during the time in which he was living with Mrs. Salvaggio, the verbal agreement was that they were to work together, and that everything which was made each was to share equally, or that he was to have a one-half interest therein, and that this is true with reference to the various pieces of real estate purchased in the decedent's name and also to all the money which was made and saved in the various businesses, and under this contention he claims an undivided one-half interest in the real estate as well as in the money remaining on deposit in the bank.

He alleges and testified that all of these agreements were oral, and relies almost entirely on his own testimony for proof of the same.

He further testified that in 1935, after he had lived with the deceased for a long period of time and after the three pieces of real estate had been acquired in her name, he went to see Mr Legier, the attorney who handled Mrs. Salvaggio's affairs, who informed him at that time, in...