Midlo & Lehmann v. Katz

• Decision Date: 13 February 1967
• Docket Number: No. 2448,2448
• Citation: 195 So.2d 383
• Court: Court of Appeal of Louisiana — District of US
• Parties: MIDLO & LEHMANN v. Samuel KATZ.

Page 383

195 So.2d 383

MIDLO & LEHMANN v.Samuel KATZ.

No. 2448.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 13, 1967.

Rehearing Denied March 6, 1967.

Simon, Wicker & Wiedemann, Thomas C. Wicker, Jr., New Orleans, for plaintiff-appellee.

James J. Morrison, New Orleans, for defendant-appellant.

Before McBRIDE, REGAN and SAMUEL, JJ.

SAMUEL, Judge.

This is a suit for the sum of $6,775.50 for extensive legal and notarial services, together with costs expended in connection therewith, rendered by the plaintiff, a partnership composed of two practicing attorneys, to the defendant in various matters over a number of years commencing in November, 1959.Defendant has appealed from a judgment in favor of plaintiff as prayed.

In the trial court the undisputed facts were: As established by competent, uncontradicted testimony and as found by the trial judge, the amount claimed for the services was reasonable and even minimal.The defendant made no payments on the account at any time despite frequent bills sent to him by plaintiff.On September 22, 1961defendant signed an instrument acknowledging that the amount of the indebtedness then due by him to the plaintiff was $6,050.64.Subsequent additional legal services increased the amount to the figure in suit.On May 2, 1963plaintiff and defendant entered into the following written agreement:

'On or before 60 days after date I agree to pay $2900.00 in full payment of fees and costs due you to date, excepting appraisers fees, by delivery of 2nd mortgage note in sum of $2300.00 subscribed by Joseph Turner, on #4 Marlborough Gate, and $600.00 cash.This agreement between Midlo & Lehmann and Samuel Katz.'

The record establishes the fact that the plaintiff partners entered into the above agreement solely because of their reluctance to sue a client for fees due them; during the course of many years in the active practice of law they had never filed such a suit.The record also indicates, and in his reasons for judgment the trial judge found, that the defendant was a 'man of means' or capable of responding in judgment.

Defendant filed an answer and later, with leave of court, a supplemental answer to plaintiff's petition.The original answer is in the form of a general denial and prays for dismissal of plaintiff's demand.The supplemental answer pleaded the above quoted agreement of May 2, 1963 as 'a compromise agreement' with which the defendant attempted to comply and alleged that one of the plaintiff partners had prevented such compliance; it prayed for judgment limited to the contents of, i.e., the amount stated in, that 'compromise agreement'.

Defendant's entire case in the district court was based on the claim, supported only by his own testimony, that within sixty days following the agreement he had offered plaintiff his check in the amount of $2,900 in full payment of his indebtedness and that this offer had been refused.However, because of the categorical denial of such an offer by both of the plaintiff partners and because of other obvious facts, the trial judge found the defendant had not made such an offer and had neglected or refused to make payment under the agreement at any time during or after the time specified for payment therein.We agree with this finding of fact and the defendant does not dispute the same; in this court his defense is based on entirely different grounds.

He now contends for the first time, and in fairness to his present attorney we note the matter was tried in the district court by other counsel, that the quoted agreement of May 2, 1963 was a novation which extinguished the original claim to the date of the agreement and that the judgment is erroneous because it includes the full amount of that original claim, citing Sheeks v. McCain-Richards, Inc., 226 La. 578, 76 So.2d 892, Smith, Howard & McCoy, Inc. v. Acme Wellpoint Corp., La.App., 152 So.2d 598andRains v. Jones, La.App., 152 So. 356.Plaintiff contends the agreement was a compromise which was abrogated and had no effect as a result of defendant's failure to comply with its terms, i.e., to make payment as called for by the agreement.In addition, plaintiff argues the defendant has failed to comply with LSA-C.C.P. Art. 1005 under which the extinguishment of an obligation, as distinguished from compromise, must be affirmatively pleaded in the answer under penalty of being not considered by the court.As we are of the opinion that we cannot hold the agreement was a novation, a conclusion favorable to the plaintiff and decisive of the case, we prefer to pretermit plaintiff's procedural contention under LSA-C.C.P. Art. 1005 and decide the case on the merits.

Because the defendant in the instant case filed to make payment as called for by the agreement of May 2, 1963, the sole question with which we are presented is whether that agreement was a compromise or a novation.If it was a compromise such failure would abrogate the compromise and plaintiff would be entitled to the judgment rendered by the trial court which included the full amount of its original claim prior to the date of the compromise.Witt v. Peyton-Countney Co., 146 La. 553, 83 So. 827;Barrett v. Hard, 23 La.Ann. 712;Smith Const. Co. v. Brechtel, La.App., 51 So.2d 643.On the other hand, if the agreement was a novation that original claim was extinguished, could not be revived by a breach of the agreement, and there could be no recovery under the original claim; plaintiff then could recover only under the agreement.

LSA-C.C. Art. 3071 defines compromise as...