Pailet v. Ald, Inc.

• Decision Date: 09 January 1967
• Docket Number: No. 2445,2445
• Parties: Ellis J. PAILET v. ALD, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 420

194 So.2d 420

Ellis J. PAILET v. ALD, INC.

No. 2445.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 9, 1967.

Joseph A. Barreca, New Orleans, for plaintiff-appellant.

Monroe & Lemann, W. Malcolm Stevenson, New Orleans, for defendant-appellee.

Before YARRUT, HALL and BARNETTE, JJ.

YARRUT, Judge.

This is an appeal by Plaintiff from a judgment dismissing his suit for damages for wrongful seizure of dry-cleaning equipment purchased from Defendant.

Plaintiff purchased the equipment with a $3.78 down payment and a $6,598.08 promissory note secured by a chattel mortgage on all the equipment in his self-service laundry. The dry-cleaning equipment was installed September 26, 1961. Plaintiff left New Orleans for military service October 8, 1961. The equipment was later surrendered to, and removed by, Defendant October 23, 1961 for the cancellation of all indebtedness due by Plaintiff.

Plaintiff contends the equipment was wrongfully seized by Defendant without his authorization; while Defendant contends it was removed at the request of Plaintiff's mother, Mrs. Henrietta Pailet, who was either a joint-adventurer in the business, or the agent of her son. Plaintiff claims his only agent was his sister, Marion Pailet, whom he left in charge of the business when he left for military service. However, at the trial, it was adduced that only Mrs. Pailet dealt with Defendant, making many telephone calls to its office complaining about the malfunction of the dry-cleaning machines; that it was Mrs. Pailet who negotiated an extension of the first payment due on her son's note; and it was she who had a meeting with the district manager, Mr. Daniel Schusterman, which resulted in the agreement for the removal of the machines. With regard to this meeting, Mr. Schusterman testified Mrs. Pailet was very agitated when she came to see him at his office; that he asked her what she wanted him to do about the situation; and she answered she wanted the machines removed. On the other hand, Mrs. Pailet testified that, when Mr. Schusterman mentioned removing the machines, she said she had no authority to authorize their removal.

The trial judge concluded Mrs. Pailet was a principal in the business, had authority to authorize the removal of the machines, and did, in fact authorize their removal. In this connection the trial judge, in his reasons for judgment, said:

'Plaintiff's witnesses convinced the court that Mrs. Henrietta Pailet was a principal in Pailet's self-service laundry. Even though Ellis Pailet incurred the obligation to A L D, Inc., Pailet's selfservice laundry was a family business being operated by Ellis Pailet, Marion Pailet and Mrs. Henrietta Pailet. Ellis Pailet attended Louisiana State University during the summer session of 1961 and attended Tulane University that fall until leaving New Orleans on October 8, 1961, at which time Ellis went to Fort Sill, Oklahoma, as a member of the armed forces. During his absence from New Orleans while attending LSU and while serving in the armed forces, the business was operated by Marion Pailet and Mrs. Henrietta Pailet. Marion Pailet had a regular job at the Marine Hospital in New Orleans. Mrs. Pailet did not work. After Ellis returned from the summer session at LSU, he resided with his wife in the Tulane Apartments. Even so, invoices continued to be sent to Henrietta Pailet's address at 321 Crystal Street. The Pailet laundry dispayed a telephone number for customers to call in case assistance was needed. This telephone was listed in the name of Mrs . Pailet and located in her home. Mrs. Pailet answered the phone when she was at home and made note of the caller's request. Mrs. Pailet paid Ellis's tuition, bought his clothes, paid his charge accounts, and even paid his income tax. A L D, Inc., dealt with Ellis Pailet and Mrs. Pailet. Mrs. Pailet negotiated an extension of the first payment and agreed with A L D , Inc., that the machines would be removed in consideration for a cancellation of the obligation assumed by Ellis Pailet. The plaintiff, Ellis Pailet, is bound by the agreement of Mrs. Pailet and A L D, Inc., and has no liability arising out of its fulfillment of that agreement with Mrs. Pailet.

'Even if the court had not decided that Mrs. Henrietta Pailet was a principal in the Pailet self-service laundry, plaintiff's witnesses convinced the court that the laundry was being operated as a family business and that Mrs. Pailet had apparent authority to contract with A L D for the removal of the dry-cleaning equipment.'

After Plaintiff learned of the removal of the machines, he made no effort to contact Defendant to repudiate his mother's agreement, but he did contact his lessor in order to arrange to vacate that area of the premises where the machines were located, and to surrender that portion of the leased premises. Further, he made no attempt to replace the dry-cleaning machines since he abandoned that portion of the business. Even assuming, arguendo, that Mrs. Pailet was only acting as an agent and not as a principal, since Plaintiff accepted the benefits of her agreement and, by his subsequent behavior, ratified it, he is now precluded from repudiating it, even though his mother may have exceeded the authority he gave her. See Francis v. Bartlett, La.App., 121 So.2d 18; Jeffrey Motor Co. v. Higgins, 230 La. 857, 89 So.2d 369, 3 Am.Jur.2d 'Agency' sec. 160; 2 C.J.S. Agency § 49, p. 1097.

However, even though we have concluded the machines were removed with proper authorization, we must also consider Plaintiff's other two contentions: (1) That Defendant's repossession of the machines constitutes a violation of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A. (App.) sec. 501 et seq.; and (2) Because of the redhibitory vices of the equipment, Defendant is bound under LSA-C.C . art. 2531 to restore not only the purchase price but the expenses occasioned by the sale.

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