Lusco v. Corkern

• Decision Date: 05 March 1930
• Docket Number: 592
• Citation: 126 So. 540,12 La. App. 557
• Court: Court of Appeal of Louisiana — District of US
• Parties: LUSCO ET AL. v. CORKERN ET AL

126 So. 540

12 La. App. 557

LUSCO ET AL. v. CORKERN ET AL

No. 592

Court of Appeals of Louisiana, First Circuit

March 5, 1930

Appeal from Washington Parish. Hon. Prentiss B. Carter, Judge.

Action by Mrs. Theresa Lusco et al. against S. E. Corkern and N. S Crow.

There was judgment for plaintiffs and defendants appealed.

Judgment affirmed.

Brock &amp Carter, of Franklinton, attorneys for plaintiffs, appellees.

Ott &amp Rich, of Bogalusa, attorneys for defendants, appellants.

MOUTON J. LECHE, J., not participating.

OPINION

MOUTON, J.

Plaintiff brought this suit against S. E. Corkern and N. S. Crow for $ 50 balance of rent on a store building leased to defendants; also for $ 170 for estimated cost for replacement of a partition, shelvings, transom, etc., in the condition they were at the time the contract of lease was entered into.

The demand against Crow has been abandoned by plaintiff, leaving Corkern as the only defendant.

The lease was verbal, and had no fixed period of duration. The rent per month was $ 50, payable on the 18th of each month, and in advance for the ensuing month. It was further agreed that it was at the option of either party to terminate the lease, provided he gave to the other thirty days' notice prior to its termination. It is not disputed that defendant made his last payment of rent on November 18th, which was to cover the month beginning on the 19th of November, and ending December 18, 1928, when on that date, defendant removed from the premises. Plaintiff is claiming $ 50 for the rent from December 18, 1928, to January 18, 1929, contending that this rental is due her because of defendant's failure to give her thirty days' notice prior to his removal on the 18th of December, 1928.

The property was leased to defendant by Frank Lusco, plaintiff's husband, who had full authority to enter into the contract. Lusco testifies that, about fifteen days before defendant moved from the store, he was told by some one that he intended to move, but he is positive that defendant never gave him such notice at any time. Mrs. Lusco testifies that defendant came to her at her home, where he gave his last check for the rent on November 18th or 19th, and that he did not make any mention whatsoever of his intention to vacate. In the course of her testimony, she said defendant told her he was going to a larger place which he needed in his business, but said he would pay her for another month. This occurred, she testifies, before the 18th of December, about the 10th of that month. As he moved on the 18th of December, it is evident, even if such could be construed as a notice, that it was not communicated to plaintiff thirty days prior to defendant's removal from the premises. Besides, Mrs. Lusco says that, when he spoke of getting a larger place, defendant said he would pay rent for another month, which would have been in keeping with his obligations under the lease.

Wallace Smith testifies that, after defendant had moved, he called on Frank Lusco to rent the store; that Lusco told him defendant had paid his rent to the 18th, and was to give him thirty days' notice. He says he then saw defendant, who told him he might promise to let him have the place if he promised not to run a cash and carry store, as he intended to keep it locked up for another month because he did not want such a store there in the next month, and, that he said he was to give Lusco thirty days' notice.

This statement from both Lusco and defendant to Smith confirms the evidence of plaintiff and her husband that they had not received the notice as had been stipulated in the agreement. It is also in keeping with Mrs. Lusco's evidence, wherein she says that defendant said he intended moving to larger quarters, but would pay her for another month.

The version given by defendant of the transaction on the issue of notification is directly in conflict with that of plaintiff. His statement is that, when he paid Lusco his rent on November 19th, in advance for...