Walker v. Delahoussaye

• Citation: 116 So.2d 884
• Decision Date: 21 December 1959
• Docket Number: No. 4926,4926
• Parties: Bobby J. WALKER, Plaintiff-Appellee, v. Althemus J. DELAHOUSSAYE, Defendant-Appellant.
• Court: Court of Appeal of Louisiana (US)

Page 884

116 So.2d 884

Bobby J. WALKER, Plaintiff-Appellee, v. Althemus J. DELAHOUSSAYE, Defendant-Appellant.

No. 4926.

Court of Appeal of Louisiana, First Circuit.

Dec. 21, 1959.

Newton T. Pharr, New Iberia, for appellant.

Marion W. Groner, New Iberia, for appellee.

Before ELLIS, LOTTINGER, and TATE, JJ.

TATE, Judge.

The defendant appeals from a judgment against him in the amount of $60. The plaintiff answers the appeal, requesting that the award be increased to.$440.36, the amount initially demanded by his suit.

The relevant facts, for purposes of discussing the questions still at issue upon this appeal, are undisputed.

In September, 1959, the defendant Delahoussaye, who owned the 'Gay Lounge', agreed with the plaintiff Walker that the latter should manage this business for a compensation of 50% Of the profits from sales. Waler was to acquire or own no share in the assets of the business, including the stock of merchandise, nor was he to share in any losses of the enterprise. A day or so after this business arrangement was made, Walker with Delahoussaye's consent borrowed the sum of $480.36 from a finance company; and Delahoussaye signed this note of September 22, 1958, as comaker. The entire proceeds received from this loan were invested in merchandise¹ which was added to the stock of the 'Gay Lounge' and subsequently sold in the ordinary course of business.

On October 7, 1958, approximately two weeks later, this first note was cancelled and a new note executed by Walker in favor of the finance company in the sum of $1,025.08, the additional balance being borrowed to finance the purchase of a personal automobile by Walker. Delahoussaye again signed this second finance company note as comaker. It was agreed by Walker and Delahoussaye that, as between them, of each monthly installment of $54.26, Walker was to pay $34.26 and Delahoussaye $20. Delahoussaye, in compliance with such agreement, did in fact pay his $20 share each of the first two monthly installments due upon the note.

Walker received his share of the net profits of the business while under his management. After about three months, Walker and Delahoussaye dissolved their business relationship, and Delahoussaye then refused to acknowledge any further liability for the unpaid portion of the finance company note of $1,025.08. The plaintiff then brought this suit to recover.$440.36, the balance due for the first note of $480.36 executed by him on behalf of Delahoussaye, the proceeds from which were used to purchase stock for the latter's 'Gay Lounge.'

The trial court found, correctly in our opinion, that the initial debt of $480.36 was incurred on behalf of the defendant Delahoussaye, who received the entire proceeds of the note by way of merchandise for the business owned by him; and that, as between the parties, Delahoussaye was the debtor primarily liable for this sum (for which amount the first note was executed and which sum was included within the total amount of the second note), while the plaintiff Walker was only an accommodation comaker or endorser who had signed both notes without receiving value therefor insofar as they represented Delahoussaye's debt.² LSA-R.S. 7:29; LSA-Civil Code, Art. 2106; Gaspard v. Lachney, La.App. 2 Cir., 92 So.2d 277.

Since the balance owed to the finance company was still unpaid, except for five installments, and since Delahoussaye was also obligated by endorsement to pay the note of $1,025.08 to the finance company, the trial court reasoned that Walker was not entitled to judgment for the entire amount of.$440.36 still due upon Delahousaye's debt but only for such portion thereof which Walker had paid on the installments which had become due prior to the trial. Delahoussaye having paid on each of the first two monthly note payments the sum of $20 mutually agreed upon to be his share of the monthly liability upon the note, the trial court restricted the judgment in Walker's favor to $60, being (for the last three installment payments) the total amount which was primarily Delahoussaye's liability but which Walker had paid for him to avoid foreclosure upon the note.

By his appeal the defendant contends that the debt in question was a liability of a business operated by the parties as a 'joint venture', as a legal consequence of which each party was responsible for one-half the losses or liabilities of the venture, including the debt sued upon. Specifically, defendant prays that the award in Walker's favor be reduced to $30, i.e., one-half of the business debt which to date Walker has liquidated. Even though the parties expressly stipulated that Delahoussaye alone should bear the losses, if indeed the relationship between the parties is a joint venture or partnership, it is contended that under LSA-C.C. Art. 2814: 'A stipulation that one of the contracting parties shall participate in the profits of a partnership, but shall not contribute to losses, is void, both as it regards the partners and third persons * * *.'

However, a pre-requisite to creation of a partnership or joint venture between the parties is an intent by the parties that the business relationship between them shall have the characteristics of a partnership. LSA-C.C. Art. 2805; Johnson v. Johnson, 235 La. 226, 103 So.2d 263; Labat v. Labat, 232 La....