Pogue v. Ray
| Decision Date | 09 January 1973 |
| Docket Number | No. 11988,11988 |
| Citation | 272 So.2d 454 |
| Parties | William H. POGUE, Plaintiff-Appellant, v. Louis Mack RAY et al., Defendants-Appellants-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Charles R. Blaylock, Monroe, for plaintiff-appellant.
Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for defendant-appellant.
James D. Sparks, Jr., Monroe, for defendant-appellee.
Before AYRES, PRICE and HALL, JJ.
William H. Pogue filed this concursus proceeding and deposited $10,533.34 in the registry of the district court. This sum represents the principal and interest due on a promissory note executed by petitioner, William H. Pogue, as partial consideration for a release and compromise agreement entered between Pogue, Louis M. Ray, Pogue Manufacturing and Supply, Inc., Pogue Industries, Inc., Effron Land Corporation, Ace Investments, Ltd., National Stake Corporation and Eagle Industrial Associates, Inc. This release and compromise agreement, dated May 11, 1970, settled five lawsuits which had arisen between the parties.
The promissory note clause of the release and compromise agreement provides:
'WHEREAS, WILLIAM H. POGUE, personally agrees that in return for the releases and discharge by Louis M. Ray and Effron Land Corporation of the rights, claims and causes of action which it asserts in the law suits listed below:
he agrees to pay LOUIS M. RAY, or his assigns, the sum of FIFTEEN THOUSAND AND NO/100THS ($15,000.00) DOLLARS, said amount to be secured by a mortgage in the amount of FIFTEEN THOUSAND AND NO/100THS ($15,000.00) DOLLARS upon the property described on the attached list marked Exhibit 'A', which property is located on Sterlington Road, Monroe, Louisiana, owned by WILLIAM H. POGUE, personally; that the settlement sum of FIFTEEN THOUSAND AND NO/100THS ($15,000.00) DOLLARS is to be represented by One Note, to-wit:
A. 'ANY FUTURE HOLDER' Note in the amount of FIFTEEN THOUSAND AND NO/100THS ($15,000.00) DOLLARS, paraphed NE VARIETUR to identify same with the Act of Mortgage, bearing Eight (8%) per cent interest from date until paid; and Ten (10%) per cent attorney fees in the event of default, said Note payable in two installments, to-wit: One installment of FIVE THOUSAND AND NO/100THS ($5,000.00) DOLLARS, payable on or before Sixty (60) days after date upon which said Note is executed, and one installment of TEN THOUSAND AND NO/100THS ($10,000.00 DOLLARS, payable on or before Three Hundred (300) days after date upon which said Note is executed.'
Pursuant to the release and compromise agreement, on May 28, 1970, William H. Pogue executed the promissory note for $15,000 and delivered it to Louis M. Ray. On July 24, 1970, Pogue paid the first installment of $5,200 (principal and interest). There was a notation on the check that the payment was made under protest due to the nonperformance of Ray of the terms of the release and compromise agreement.
This concursus proceeding was filed on March 24, 1971, shortly before the second installment of the note was due. Cited as defendants were Ray, Effron Land Corporation, Eagle Industrial Associates, Inc., and Pogue Industries, Inc. In his petition, Pogue makes the following allegations:
(1). That of the $5,200 paid on the first installment, $1,000 was paid by Pogue Industries, Inc., and $3,000 was paid by Eagle as per a previous written agreement with Pogue.
(2). That he is liable to Ray for $6,000 and interest thereon as provided by the note but Ray has not performed his part of the compromise agreement to return certain items of property seized in connection with the five lawsuits and that due to this nonperformance by Ray and claims asserted against him (Pogue) by Eagle and Pogue Industries, Inc., he is unable to determine who is entitled to the balance of the sum deposited and is fearful for additional financial exposure should it be determined that either Eagle or Pogue Industries, Inc., should be entitled to a set-off for the amount advanced by them.
On April 13, 1971, Ray filed a motion for summary judgment and a peremptory exception of res judicata. On April 15, 1971, Ray filed a peremptory exception of no cause of action and a peremptory exception of no right of action.
The trial court rendered judgment on March 30, 1972, sustaining the exception of res judicata and dismissing the suit.
On May 4, 1972, Eagle filed an answer to the concursus petition claiming $3,000 from the amount deposited with the registry of the court. In addition, the answer included a claim against Ray for $5,000 as damages for wrongful seizure and detention of their property.
On May 5, 1972, Pogue Industries, Inc., filed an answer...
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