Lombard v. Citizens Bank of Louisiana

• Decision Date: 17 February 1902
• Docket Number: 13,765
• Citation: 31 So. 654,107 La. 183
• Court: Louisiana Supreme Court
• Parties: E. H. LOMBARD v. CITIZENS BANK OF LOUISIANA

31 So. 654

107 La. 183

E. H. LOMBARD v. CITIZENS BANK OF LOUISIANA

No. 13,765

Supreme Court of Louisiana

February 17, 1902

January 1901

APPEAL from the Civil District Court, Parish of Orleans. -- King, J.

Benjamin Rice Forman, for Plaintiff, Appellant.

Henry Denis and Branch K. Miller, for Defendant, Appellee.

OPINION

BREAUX J.

Appellant complains of a judgment of the District Court dismissing his suit on exception.

Appellant alleged in his petition that defendant is indebted to him in the sum of nine thousand four hundred and fifty dollars because he, in 1891, was employed by the board of directors as land agent, and to look after the lands and property belonging to the mortgage department of the Citizens' Bank at an annual salary of three thousand dollars; that his contract of employment has been renewed annually including the year which ended on the first of February, 1901.

We quote from plaintiff's petition: "That up to the first of January, 1891, the said sum of three thousand dollars was annually paid him, but that thereafter he paid back at the rate of one hundred dollars per month or allowed the cashier to deduct, on account of an indebtedness which, up to the time, to-wit: the second of January, 1894, was canceled and paid up, but that thereafter the President of the Citizens' Bank wrongfully, illegally and without his consent, retained from his salary one hundred dollars a month for seventy-eight months, which has never been paid to him the petitioner, seventy-eight hundred dollars which is still due and unpaid, and your petitioner continued at the annual salary on his contract, renewed annually, at three thousand dollars a year, in the service of the said bank until the seventeenth of July, 1900, when he was discharged, and the action of the President in discharging him was on the third of August, 1900, ratified by a majority of the directors of the bank, and they broke their contract. He offered to continue until the end of the year, which was refused; that the bank owes him the whole of the July salary, less one hundred and ten dollars drawn on account during which month he rendered services for which he is entitled to a balance of one hundred and forty dollars and for the further sum for damages caused by the breach of contract for the residue of the year from the first of August, 1900, to the first of February, 1901." (Italics ours.)

Defendant filed an exception to this petition on the ground of vagueness, and averred further that plaintiff should allege whether he declared on written or a verbal contract; if verbal, with whom it was actually made; if in writing, defendant was entitled to oyer; that defendant is entitled to know in what mode the consent of the board of directors was given, whether by resolution or otherwise; if by resolution, its date and the form and manner the board manifested its consent; that plaintiff should set forth the nature of the indebtedness.

Plaintiff on the day of the trial offered to file an answer to the exception in which he averred that the contract of employment was entered into when he was employed originally, and that it was changed and modified from year to year afterward; that his salary originally was to be two thousand dollars a year and ten per cent. upon the revenues which he would succeed in realizing in the department of which he had charge, and that, subsequently, it was agreed that he should have a fixed salary of four thousand dollars a year, and afterwards this salary was reduced by one thousand dollars, and it thus remained until the contract was broken by the President of the bank; that these changes and modifications appear in the correspondence of the Citizens' Bank and in its books and minutes; that it is impossible for him to produce these books and papers. This answer was refused by the court, and plaintiff reserved a bill of exceptions to the ruling.

The exception of the defendant was then maintained and the plaintiff was directed to amend his petition. Plaintiff then filed a supplemental and amended petition in which he reiterated his demand and dwelt at some extent upon the particulars of his claim. With reference to his contract, plaintiff in his supplemental petition avers that it will appear by the resolution of the board of directors and the books of the bank when his contract was made. Plaintiff complains of the action of the President in deducting an amount monthly from his salary in satisfaction of a debt of which he did not owe the amount.

The District Court, in ruling, after the supplemental and amended petition had been filed, said, in substance, that plaintiff must set forth a cause of action, and whether he declared upon a written or oral contract; if upon the former, date and contents should be given, and if in defendant's possession when called upon, he should file it. If upon a verbal contract, needful particulars should be alleged to enable plaintiff to prove up his cause.

Plaintiff declared on a contract, to which he particularly refers in his pleadings. He was directed by the court to state whether or not it was in writing. No good reason suggests itself upon which to sustain the refusal. We have attentively read the brief, and have not found that any grounds at all are given for refusing to comply with the court's ruling in this respect. When a pleader declares on a contract, he may be called on...