Pailet v. Guillory
| Decision Date | 03 July 1975 |
| Docket Number | No. 5049,5049 |
| Citation | 315 So.2d 893 |
| Parties | Ruth E. PAILET, Plaintiff-Appellee, v. Twyman GUILLORY and Dr. Richard R. Michel, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Knoll & Knoll by John Contois, Marksville, for defendants-appellants.
Harold J. Brouillette, Marksville, for intervenor-appellant.
Riddle & Bennett by Darrel D. Ryland, Marksville, for plaintiff-appellee.
Before FRUGE , MILLER and DOMENGEAUX, JJ.
This is a suit based on a written contract of lease instituted by one of the lessors, Ruth E. Pailet, against Dr. Richard Michel and Twyman Guillory, who are personal guarantors of a corporate lessee's performance under the lease. Plaintiff alleges that the lessee has vacated the leased premises and has failed to pay rent since December 1, 1973. The defendants contend that the lease has been validly cancelled and that no rent is due and owing. Defendant Dr. Michel also filed a third party demand against Guillory for any amount for which he is cast.
The trial court rendered judgment in favor of the plaintiff in the amount of $1,980 against both defendants jointly, but not in solido, and also rendered judgment for Dr. Michel against Guillory on his third party demand.
The contract of lease out of which this action arises was signed in Marksville, Louisiana, on November 25, 1970, and had a five-year term. The leased premises is part of the Estate of Anne Elster whose two surviving daughters, Rae Abramson and plaintiff Ruth E. Pailet, signed the lease as lessors. The lessee was the Cenla Equipment Company, Inc. In the lease Dr. Richard Michel and Twyman Guillory also bound themselves personally to guarantee the compliance of Cenla.
On November 3, 1971, the lease was assigned, with the written permission of the lessors, from Cenla Equipment Corporation to Twyman Guillory. In the assignment Guillory agreed to 'hold harmless' both Cenla Equipment and Dr. Michel from any suit or action under terms of the lease.
The present action was instituted by Ruth Pailet, one of the lessors, for her half of rents due under the lease since December 1, 1973. She claims that no rent has been paid since that time and under an acceleration clause in the lease, defendants are indebted to her to the extent of one-half of 24 months rent at the rate of $82.50 per month, or a total of $1,980.
Defendants admit that no rent was paid after November of 1973. They contend, however, that the lease was cancelled and they are under no obligation to pay any rentals.
All matters concerning the leased property was handled for the lessors by Dr. Albert Abramson, who was the husband of Rae Abramson at the time the lease was entered into. The record shows that the defendants contacted Dr. Abramson about leasing the property, that they paid rent checks to Dr. Abramson (made out to the Estate of Anne Elster), and that Dr. Abramson handled minor repairs on behalf of the lessors on his own authority. The defendants have never had any direct contact with the lessors concerning the property. Their only contact was through Dr. Abramson.
Dr. Abramson made it clear to the defendants that he did not own the leased property and that on certain matters he could act only with the permission of the lessors. For instance, Dr. Abramson made it clear that he did not have authority to lease the premises. The lease was made only upon approval of the terms by the lessors and they signed the lease themselves. Also, the assignment of the lease from Cenla to Twyman Guillory was approved in writing by the lessors.
In March of 1973 Guillory approached Dr. Abramson and asked that the lease be cancelled. Dr. Abramson informed him that he would have to check with the lessors, Mrs. Abramson and Mrs. Pailet, as he did not have the authority to cancel. A few days later Dr. Abramson notified Guillory and Michel that the lessors had agreed to cancel the lease.
Mrs. Rae Abramson testified that she had been contacted by Dr. Abramson and had consented to the cancellation. The plaintiff, Mrs. Pailet, however, vigorously denied at trial that she had been contacted by Dr. Abramson and denied that she ever agreed to the cancellation. At trial Dr. Abramson testified that he did contact Mrs. Pailet but admitted that there may have been some 'misunderstanding' regarding cancellation.
Guillory vacated the leased premises in 1973. The building had not yet been rented at the time of trial in December, 1974.
The trial judge rendered judgment for the plaintiff, finding that the lease had not in fact been cancelled. Defendants have appealed, contending that the trial court erred in holding that the plaintiff had not agreed to a cancellation of the lease and, in the alternative, in holding that plaintiff had not vested Dr. Abramson with implied or apparent authority to cancel the lease.
A contract legally entered into can be abrogated or revoked by mutual consent of the parties. La.C.C. arts. 1901, 1945, 2130.
In Louisiana, because a lease may be made pursuant to an oral agreement, C C. art. 2683, the cancellation may be made orally even if the original contract was written. Christ v. Christ, 251 So.2d 197 (La.App.3rd Cir. 1971). In this case the lessees desired and agreed to the cancellation of the lease, as did Mrs. Abramson, one of the lessors. The sole issue therefore is whether Mrs. Pailet also agreed.
At trial Mrs. Pailet denied that she had ever been contacted by Dr. Abramson about cancelling the lease. She testified that had she been so contacted she would not have agreed to the cancellation because she needed the income from the rent. Dr. Abramson testified that he contacted Mrs. Pailet and thought she had agreed to the cancellation. He admitted that there had apparently been a misunderstanding.
The trial court clearly found that Mrs. Pailet did not agree to cancelling the lease. This is a finding of fact involving the credibility of witnesses. The trial judge had the opportunity to see and hear the witnesses and his findings may not be disturbed on appeal in the absence of manifest error. We find no manifest error here and therefore accept the conclusion that Mrs. Pailet did not personally agree to cancellation of the lease.
Appellants contend that even if Mrs. Pailet did not agree to cancellation of the lease, she is bound by the act of Dr. Abramson who was vested with the implied and the apparent...
To continue reading
Request your trial
-
Reed v. Allstate Ins. Co.
...41, 193 So. 362 (1939); Craft v. Trahan, 351 So.2d 277 (La.App. 3d Cir. 1977), writ refused 353 So.2d 1336 (1978); Pailet v. Guillory, 315 So.2d 893 (La.App. 3d Cir. 1975); Busby v. Walker, 84 So.2d 304 (La.App. 2d Cir. 1955), writ denied; 44 C.J.S. Insurance § 266 at page 1069; Couch on In......
-
Bamber Contractors, Inc. v. Morrison Engineering & Contracting Co., Inc.
...will be bound by the agent's acts, which, although beyond his actual authority, were within his apparent authority. Pailet v. Guillory, 315 So.2d 893 (La.App. 3rd Cir. 1975). The burden of proving apparent authority is on the party relying on the mandate. Vermilion Bank & Trust Company v. M......
-
Romero v. Mosquito Control Contractors, Inc.
...501 (La.1970). For ratification to occur, the facts must indicate a clear and absolute intent to ratify the act. Pailet v. Guillory, 315 So.2d 893 (La.App. 3d Cir.1975). It is correct, as appellant asserts, that in some situations an unauthorized contract may be ratified by the subsequent a......
-
Demolle v. Horace Mann Ins. Co.
...is vested with the implied authority to do all of those things necessary or incidental to the agency assignment. Pailet v. Guillory, 315 So.2d 893 (La.App. 3d Cir.1975). On the other hand, as succinctly explained by the First Circuit Court of Appeal in AAA Tire & Export, Inc. v. Big Chief T......