105 La. 1 | La. | 1900
Lead Opinion
The opinion of the court was delivered by
The plaintiffs allege that on October 3, 1890, they leased, under an act duly recorded, from Fortuné Zéringue, and other-s, the landing and river bank of the Mississippi river, known as the Zéringue landing, under Nine Mile Point, in the Parish of Jefferson, with all the rights and privileges belonging and pertaining thereto for the period of five years, beginning on the 15th October, 1890, at the rate of one thousand dollars per year; that in the month of October, 1891, the Citizens Bank of Louisiana, became the owner of said property under an adjudication made to it in enforcement of a mortgage it held upon the property; that the Bank ratified and affirmed said lease as against itself, collecting rents due thereunder, until the Yth of March, 1892; that said recorded lease was continued as a binding lease between them and Pablo Sala, who became the owner of the property by purchase from the Bank, on or about March Yth, 1892; that on the 9th of August, 1892, Pablo Sala, by notarial act before Grima, notary, sold and transferred to the Pacific Improvement Company, or other party, a portion of said leased premises, to-wit: the upper part thereof, having a frontage of say twenty-five hundred feet, on the Mississippi
That the premises described in said lease between themselves and Zéringue was leased to be used and was used by plaintiffs as a coal landing and for the mooring of coal boats, for the care and custody of
Whereby and wherein for reasons therein assigned they reserved the right to demand, sue for and recover the amount of said notes, or so much thereof as should appear to have been exacted from them from the fault, concealment and deception practiced on them on behalf of said Sala. That the premises leased by them from Zéringue extended along the front and bank of the Mississippi river, a space say four thousand feet; t'hat in the month of August, 1892, and during the time of petitioner’s lease with Zéringue, said Pablo Sala sold to the Pacific Improvement Company, or to some third person, a part of said property, including say twenty-five hundred feet front thereof on the bank of said river; that it was only upon said purchasers demanding and dispossessing petitioners and himself taking possession of the part of the property so purchased by him in the month of November, 1894, that they became aware of the concealment and deceit practiced upon them; that during the term of their lease with Zéringue petitioners had placed improvements and conveniences in their business of mooring and caring for coal boats of which, by the concealment and practices recited, they had been deprived; that the same were of the full value of five hundred dollars, for which defendant is liable to them; that but for the belief that they were renewing for an extended term, or making a new lease for such extended term, in all respects, except as stated, the same as between themselves and the Zéringues, they would
In February, 1896, defendant answered, first, pleading the general issue. Further answering, she admitted “the execution of the lease under private signature of January —, 1894, from Pablo Sala to plaintiffs and the execution and delivery by plaintiffs of sixteen rent notes of three hundred and seventy-five dollars each, described in plaintiff’s petition.”
She specially denied that any concealment and deception were practiced upon plaintiffs in the preparation and execution of. said act of lease, and averred, on the contrary, that plaintiffs had schemed and made the said charge only as a pretext not to pay rent under the lease; that the said act of lease, written in large, plain and very legible writ
Furthermore, that long before said lease was signed, plaintiffs were aware and informed of the sale made on the 9th of August, 1892, by Pablo Sala to the Pacific Improvement Company, and they intentionally abstained from mentioning the matter to defendant’s agent, reserving it as a means for the purpose of thereafter denying then-liability under the lease.
Defendant, assuming the character of plaintiff in reconvention, averred that two of the aforesaid rent notes for three hundred and seventy-five dollars each, the one due on the 1st of October, 1895, and one due on the 1st of January, 1896, had not been paid and had been duly protested; and prayed that plaintiff’s demand be rejected, and that there be judgment in favor of defendant against plaintiff’s firm, and against the individual members thereof in solido for the amounts of said two notes with interest and lessor’s privilege.
On the 25th day of July, 1895, Dona Maria y Fabrigas brought suit against D. B. Wood & Sons on one of the sixteen notes executed by the latter on the 1st of January, 1894, to-wit: the note for three hundred and seventy-five dollars which fell due on the first of July, 1895.
This suit bore the number 46,632.
On September 2nd, defendants filed an exception to plaintiff’s demand. They averred that they had deposited, in court, the sum of one hundred and forty dollars and sixty-three cents, which amount, in legal tender money, had been tendered by them to plaintiff’s agent, as would appear by a duly certified copy of the notarial act of tender; that having tendered in full payment and satisfaction any and all amounts due plaintiffs on account of the matter sued on, they pleaded as to the remainder of the said demand lis pendens, as shown by the
Dona Maria y Eabrigas subsequently filed in her own suit against B. D. Wood & Sons a supplemental petition, in which she averred that since the institution of the same three more of the rent notes of three hundred and seventy-five dollar's, each furnished by the defendants under the lease alleged in her petit'on, had fallen due and had not been paid, to-wit: the one payable on thi 1st of October, 1895, the other on the 1st of January, 1896, and the one payable on the 1st of April, 1896; that she prayed for judgment on the two notes falling due, respectively, on the 1st day of October, 1895, and the 1st day of January, 1896, in her reconventional demand against the defendants in the suit brought by them against petitioner; that she was equally entitled to judgment on the note falling due on the 1st of April, 1896. She prayed for citation upon defendants, and that she have judgment against them for the amount of said note, with interest.
Counsel of parties agreed that the case of Dona Maria y Eabrigas vs. B. D. Wood & Sons, No. 46,632, and that of B. D. Wo,sd & Sons vs. Dona Maria y Eabrigas, No. 46,331, be consolidated, and tried as one suit, and that the petition of B. D. Wood & Sons, No. 46,331, will stand as answer to the original and supplemental petition in suit No. 46.632.
On the 7th of May, 1897, the District Court rendered two judgments, one in the suit of Dona Maria y Eabrigas vs. B. D. Wood & Sons, No. 46.632, and another in the suit of B. D. Wood & Sons vs. Dona Maria Sala y Eabrigas, No. 46,631.
In the former the court decreed that there be judgment in favor of Dona Maria Sala y Eabrigas and against the defendants for the sum of one hundred and forty dollars and sixty-two cents, to be paid and satisfied from the tender made and amount deposited by B. D. Wood & Sons in the hands of the clerk of the court upon the filing of their answer, said amount of said deposit being subject to the orders -of the plaintiff, and for the further sum of one hundred and forty dollars and sixty-two cents, with eight per cení per annum interest from April 1st, 1896, plus two 50-100 dollars, costs of protest and costs of suit.
In suit No. 46,631, the court decreed that there be judgment rendered
On May 12th, 1897, Dona Maria Sala y Fabrigas filed a motion for a new trial, the caption to the motion bearing the titles and numbers of. both suits and referring to them as “consolidated.” The second ground assigned for a new trial was that the court had not given judgment in favor of Dona Maria Sala y Fabrigas for the amount of the rent note sued upon in her supplemental petition, or any part thereof.
In acting upon the motion, the court, under the caption of both suits, said: “The supplemental petition, claiming judgment in suit No. 46,632 for three hundred and seventy-five dollars, on the note falling due April 4th, 1896, was not in the record, and I overlooked the
“New Orleans, La., May 26, 1897.
(Signed) T. C. W. Ellis, Judge.’’
A single judgment, embodying the provisions of both judgments under the caption of both cases, seems to have been written out and is copied in the transcript, but it is not signed.
On May 31st, 1897, Dona Maria Sala y Fabrigas, under the caption of both suits with their proper numbers, and referring to them as “consolidated,” made a motion for an appeal representing herself as the plaintiff in one of the consolidated .cases and the defendant in the 'other. She averred that she was aggrieved by the judgments in both cases rendered in said consolidated cases signed on the 27th day of May, 1897. On this application, #the court granted her an “appeal from said judgments rendered in the two consolidated cases.” v
On the 3rd of October, 1890, J. Fortuné Zéringue and others leased to B. D. Wood & Sons “the landing and river bank of the Mississippi river known as the Zéringue Landing, under Nine Mile Point, in the Parish of Jefferson, together with all the rights and privileges belonging or pertaining thereto” for the period of five years, beginning on the
The lessees entered into possession under the lease. At the time of this lease the Citizens’ Rank held a mortgage upon the plantation of which “the Zéringue Landing” (the property leased) formed a part of the front.
On the 7th of March, 1892, the Citizens’ Rank sold the plantation to Pablo Sala, describing it as “having a front of thirty-one arpents, twelve toises and twelve feet front on the river, less and with the deduction of a narrow strip of land having a front on the Mississippi river of one arpent, and a depth extending back between parallel lines containing within said depth nine 50-100 acres sold by Camille Zéringue to the Rarrataria and Lafourche Canal Co. on the 21st of April, 1830, and. less and with the deduction also of a portion of said tract occupied by the New Orleans, Mobile & Chattanooga Railroad Co. or their successors, said portion having a front on the Mississippi river of seventeen hundred and twenty feet more or less.”
On the 19th of July, 1892, Joseph Lombard, attorney of Pablo Sala, wrote to E. D. Wood & Sons, a letter in which he said that he had been requested by Sala, as the present owner of the Zéringue plantation, in the Parish of Jefferson, to notify them “that the rent of the landing and river bank of the Mississippi river known as the Zéringue Landing, under Nine Mile Point, say four thousand five hundred feet more or less fronting on said river, would be two hundred and fifty dollars, from the 1st of August next (August, 1892) and payable monthly.
On the 9th of August, 1892, Pablo Sala sold to the Pacific Improvement Company, a portion of the plantation which he had purchased, the tract sold having a front of twenty-five hundred feet on the Mississippi river, this front covering the upper twenty-five hundred feet of the Zéringue Landing.”
On December 10th, 1892, Sala seems to have sent R. D. Wood & Sons a bill “for five months rent of the landing occupied by them as a coal landing, in the Parish of Jefferson,” from the 7th of March, 1892, to the 7th of August, 1892,-at eighty-threer 33-100 dollars per month, and three months rent of .same, from 7th of August, 1892, to 7th November, 1892, at two hundred and fifty dollars per month.
Defendants must have declined to pay this bill for, on the 6th of January, 1893, Sala brought suit against defendants in which he alleged that he had become the owner of the Zéringue plantation from
In January, 1894, (the day of the month not specified) a lease was. signed between Pablo Sala and B. D. Wood & Sons for the period of five years, beginning on the first of January, 1893, and expiring on the 31st of December, 1897, in which the property leased was described as “the landing on the river bank of the Mississippi river, known as the Zéringue Landing, under Nine Mile Point, in the Parish of Jefferson, bounded on the upper line by the property of the Pacific Improvement Company, and below by the property of the Texas and Pacific Bailroad Company, together with all the rights and privileges belonging or pertaining thereto. The consideration for the lease was the sum of fifteen hundred dollars per annum, payable quarterly, at the end of each quarter.
Prior to the signing of this lease, a number of letters had been exchanged between the attorneys of Pablo Sala and those of B. D. Wood & Sons, in reference to a compromise of the suits of Sala vs. B. D. Wood & Sons.
Precisely when the first offer of compromise wa's made does not directly appear, but in a letter of one of the attorneys of B. D. Wood & Sons to Chretien & Suthon, attorneys of Sala, dated November 2nd, 1893, he acknowledged receipt of a letter from them of the 31st of October, 1893, relating to the suit of Sala vs. Wood, and in reply stated that, as a compromise, his clients were willing to compromise
On the 6th of November, 1893, the same attorney wrote another letter to Chrétien & Suthon, in which he acknowledged receipt of a letter that day from them, in the matter of Sala vs. Wood.
After making this acknowledgment, he said: “In reply, I will state that on May 11th (2nd?), 1893, we proposed, in behalf of our client, as a compromise of the suit to pay your client at the rate of one thousand dollars per annum to January 1st, 1893, and take a lease of the property for four years from that date at twelve hundred dollars per year.”
We find in the transcript a letter of May 2nd, 1893, written to A. E. Billings, one of the attorneys of B. D. Wood & Sons, by Chretien & Suthon, in which they say:
"In re. Sala vs. Wood ei dls.
“In above case our client begs us to make a counter proposition, 'which is as follows: He will accept in compromise fifteen hundred dollars per year, payable yearly, to begin on the 7th of August, 1892, the lease to last five years. The sum of four hundred and sixteen 65-100 dollars additional to be paid for rent due from March 7th, 1892, to August, 1892, five months at eighty-three 33-100 dollars per month.
“This being the best that he can do, we hope that the matter will be compromised on that basis, thus ending litigation. You will greatly oblige us by giving an early answer.”
On the 11th of May, 1893, Wood’s attorneys answered saying (in the suit of P. Sala vs. B. D. Wood & Sons) : “Our clients decline to accept the counter proposition made by you, to-wit: to pay one thousand five hundred dollars for rent for the property. The proposition which we made you some time since to pay the rent at the rate of one thousand dollars a year up to the 1st of January, 1893, and thereafter, at the rate of twelve hundred dollars per year, on a five year’s lease from date, will be open for acceptance until the 15th of this month, at which time, if not accepted, it will be withdrawn.”
At some time between May the 11th, 1893, and November 24th, 1893, the attorneys of the parties seem to have agreed upon the basis of a compromise of Sala vs. Wood, for, on the latter day, we find a letter from Mr. Chrétien to Rice, attorney of Wood & Sons, in which he. requests them “to have the act prepared as per our agreement in above
On December 11th, 1893, Rice & Montgomery wrote to Chrétien & Suthon, saying: “In the suit of P. Sala vs. B. D. Wood & Sons, we understand compromise proposed to be as follows: The defendant to pay for use of landing from the 7th of March, 1892, to December 31st, 1892, at the rate of one thousand dollars per annum, thereafter, upon a five years’ lease, ending December 31st, 1897, at the rate of fifteen hundred dollars per annum in quarterly instalments. Accordingly, we have drawn projet for a lease which we enclose herewith. Under the compromise a considerable sum would now be due. We understand that defendants have not had a boat at the landing since February. For several months the coal business has been at a total standstill at this port for want of coal. Of course the coal dealers have been and are doing little or no business. Our clients wish for four months’ time for which they will furnish you good paper for the amount that would be due if this compromise is effected, to-wit: two thousand three hundred and fifty-seven dollars. If satisfied, please have lease signed in duplicate by your client and w.e will then have it signed by ours.”
In the projet for lease forwarded, the property to be leased was described as it had always been “as the river bank known as Zéringue Landing, under Nine Mile Point,” and the terms of the lease from the Zéringues to B. D. Wood & Sons were changed only in so far as it was necessary to make the instrument conform as to dates and consideration with the agreement between the parties as understood by Wood & Sons.
This pro jet must have been submitted to Sala who, instead of signing it, caused to be written out himself, through Grima, a notary, an instrument differing only in the addition to the description of the property leased,lof the wqrds“bo|undedby (¡he property of thePacificImprovement Company, and by the property of the Texas Pacific Railroad property,” and the insertion of a clause tha t “the property was not to be subleased without the permission of the lessor.”
On the 3rd of January, 1894, Messrs. Chrétien & Suthon notified Rice & Montgomery that the paper prepared in duplicate had been sent to Wood & Sons to be submitted to them. On the 6th, they replied, that in the matter of Sala vs. Wood et als., they desired to say that their clients’ proposition was to extend the lease then in existence, to December 31st, 1897; that they enclosed a copy of prepared lease which had been placed in the hands of Sala’s agent; that it contained a clause
This letter was forwarded to Rice & Montgomery, and was replied to by the latter in a communication td Sala’s attorneys, in which they declared that, “while they were still willing to carry out the agreement for compromise, they declined to assent to the modification interposed; that as they understood the amendments were insisted upon as an ultimatum, there was no alternative left but to proceed with the suit.'’
The parties finally signed the instrument which plaintiffs insist evidences in its entirety the agreement between Sala and the defendants, but which the latter deny.
The paper, as signed ,was written out by Mr. Rice, one of the attorneys of B. D. Wood & Sons, from one prepared by Sala and forwarded to him for examination.
On November 26th, 1894, counsel of the Pacific Improvement Company wrote to B. D. Wood & Sons, stating that they had been informed that they claimed to hold a lease of the property on the river front near the Nine Mile Point, formerly belonging to Pablo Sala; that they begged to inform them that the company had purchased the property from Pablo Sala in August, 1892, in ignorance of the existence of any lease, and with a clear certificate from the records of Jefferson Parish, and to know whether they claimed to have a lease of the property and the same was registered. At the time the letter was written, the Pacific Improvement Company had already leased the property to the Beaver Company. This company took possession of the property under their lease.
On January 4th, 1895, B. D. Wood & Sons protested to Sala against this action as a violation of their rights. They said that they would pay their notes, but under protest, and reserve the right to sue for the
The tenders having been refused, the money was deposited in the Citizen’s Bank, subject to collection. On the trial of the cause a witness, on behalf of plaintiff, a member of the Pacific Improvement Company, testified that he had met B. D. Wood, one of the defendants in New Orleans, either in July or August, 1892, shortly after the purchase made by the Pacific Improvement Company, from Sala; that he told him he heard his firm claimed a lease of the property for the purpose of mooring his coal boats; that the Pacific Improvement Company, when it purchased the property, caused the records to be examined, and the property was found to be unencumbered; that under the circumstances the lease would not be recognized; that he (witness) then told him that his firm would have to settle that matter' with the party from whom he held the lease. . Wood, as a witness, positively denied that such a conversation took place, but referred to a later conversation of which he gave the details. He introduced testimony to corroborate his own. The District Court was of the opinion and gave extended reasons therefor that the witness referred to must have been mistaken as to the date of this conversation. We agree with the court that this must have been the case, or that the conversation was of so general and indefinite a character as not to have arrested Wood’s attention. We can conceive of no reason which would have induced Wood & Sons to enter into this burdensome lease under such circumstances and to compromise on such a basis a suit which they had been so stubbornly defending. There is nothing anywhere to intimate that the parties at any time had under discussion the subject matter of the thing leased, or any change therein. What was leased was understood between the parties throughout. The district judge, in his judgment of the ease, has very thoroughly reviewed the evidence, and stated the grounds upon which he based the conclusions of fact which he had reached. Careful examination of the record and consideration of the reasons assigned have satisfied us of the correctness of those conclusions.
At a distance of nine miles above the city of New Orleans, the right
The lower line of this peninsular formed part of the front of a plantation belonging to the Zéringue family. B. D. Wood & Sons and B. D. Wood & Bros., coal merchants, had, for many years, had the occupancy of the portion of that front known as the “Zéringue Landing under Nine Mile Point,” as lessees, using the same for the purpose of mooring their coal boats and barges. The value of this landing rests upon the fact that it is protected by the peninsular which, deflecting the current from the shore on that side, affords a harbor of slack water on that side where these boats can be safely landed and kept until the coal is needed for sale. Along the river front, plaintiffs, at considerable cost, erected mooring 'or hitching posts. Nine of these posts remain. Six of the nine are so distributed that the one lowest down the river is about twenty-five hundred feet below Nine Mile Point. The nine posts are called new posts. Above them were two other new posts which do not remain. Prior to 1888 these lessees had a number of posts still lower down known as old posts, but none of these remain. Tn August, 1888;, a storm wrecked a number of the coal boats moored at tjie old posts, or below, while the boats moored higher up the stream toward Nine Mile Point escaped. The event showed that the portion of the landing lying next to or under Nine Mile Point was the safest part of the harbor. Since 1888, the sunken wrecks of the boats lost in the storm render navigation dangerous and mooring difficult and impossible at any ordinary stage of the water along the lower part of what previously had been used as ai harbor. A storm in 1892 showed the same results, so that it was well established by proof and actual experience that the “Zéringue Landing” had no practical value beyond the protecting influence of Nine Mile Point, owing to the sunken wrecks. The lowest part of said harbor is, perhaps, not over four thousand feet, surely not over forty-five hundred feet below said Nine Mile Point, or, at least, below the upper limits of the Zéringue plantation, as it was in 1890. * * * By an act of 1890, the plaintiffs obtained a lease from the owner, Zéringue, for; five years, the property leased being described, as we have seen, as “the landing and river bank known as the Zéringue Landing under Nine Mile Point.” After Pablo Sala acquired the plantation from the Citizen’s Bank, he was fully advised of the fact that B. D. Wood & Sons were in possession of Zéringue’s
It is perfectly clear from this that the particular portion of the river front for which rent was claimed was that then occupied by B. D. Wood & Sons as a coal yard, and which was being occupied by them for such purpose at a rental of eighty-three 32-100 dollars at the time of Pablo Sala’s purchase. The property occupied is referred to “as the landing and river bank of the plantation, say forty-five hundred feet front on said river under Nine Mile Point,” and the portion then occupied was, unquestionably, the forty-five hundred feet just below the Nine Mile Point. From the time that this suit was brought up to the time that the parties signed the instrument which forms the matter in dispute in this litigation, the parties and their attorneys were in constant negotiation for a compromise of the existing suit, and this instrument must be read and construed as evidencing the compromise finally reached in respect to the subject matters before the court to that action. The extent of the premises which B. D. Wood & Sons were entitled to occupy under their lease from the Zéringues or the extent of the premises which they were then occupying, was not an issue in that case. That fact was dealt with throughout as a conceded and
In Rice & Montgomery’s letter to Chretien & Suthon, of the 11th December, .1893, they said, “in the suit of P. Sala vs. B. D. Wood & Sons, we understand compromise proposed ,to be as follows. The defendants to pay for the use of the landing from the 7th of March, 1892, to December 31st, 1892, at the rate of one thousand dollars per annum, thereafter, upon a five years’ lease, ending December 31st, 1897, at the rate of fifteen hundred dollars, payable quarterly, in monthly instalments, accordingly we have drawn up a pro jet of lease which we enclose. * * * We understand defendants have not had a boat at the landing since February. '* * * If satisfied, please have lease signed in duplicate by your clinent, and we will have it signed by ours.” The words “to pay for the use of the landing” * * * “defendants have not had a boat at the landing,” found in this letter, would, of themselves, show what property the attorneys of B. D. Wood & Sons were referring to, but the projet of lease forwarded at the time, described the property as it had always been as “the river bank known as Zéringue’s Landing.” Sala was placed, by this letter, in a
“First — The Pacific Improvement Company, though purchasing in August, 1892, had not disturbed or notified Wood & Sons, who were in constant use of the very property which said company had purchased;”
“Second — The fact that the title of said Pacific Improvement Company was recorded is of no moment, because Wood & Sons, as lessees in possession, and not as title holders, or claimants of the fee, had no concern with the registry or non-registry of anybody’s title to the property. A lessee deals with the apparent owner in possession, and is not bound to consult public records as to titles. If disturbed, he calls on his lessor for protection. Here the Pacific Improvement Company did no act to signal or signify its possession, and it gave no notice to Wood & •Sons of its title;”
“Third — Wood & Sons bona fide believed Sala to be the owner, and they had good cause for it in the suit No. 37,753, filed January 6th, 1893 (after the sale to the Pacific Improvement Company of August,
“Fourth — In the lease of January, 1894, Sala’s agent gave no notice that twenty-five hundred feet of the Zéringue Landing, under Nine Mile Point, for the great part the only available or possible part of said landing for use as a coal boat harbor, had been alienated. The statement of upper and lower boundaries, after describing the property as the Zéringue’s Landing, under or below Nine Mile Point, was no notice.”
“Fifth — Wood & Sons, as the evidence overwhelmingly shows, had no knowledge, nor had their attorney, of said sale by Sala in August, 1892, to the Pacific Improvement Company, of the greatest part of said coal boat harbor available for the use and bona fide they supposed that they were securing a lease of this alienated part, as they were then, and had been using it for years when they contracted the lease of January, 1894.” In respect to the last point, the district, judge said that the parties raised a disputed issue of fact, and as to this his findings were as follows: “I find that Wood & Sons had no bona fide notice or knowledge of sale of August, 1892. I find this because Mr. C. S. Rice, the plaintiff’s then attorney, and every member of the firm of B. D. Wood & Sons, testify positively and affirmatively that they had no knowledge of said act until November, 1894, and that when said lease of January, 1894, was signed they all believed that they were securing a lease of the entire landing, as they had occupied it for years, and then were occupying it, and that they had no knowledge that as said act of lease read it was intended by the lessor that they were leasing a river front beginning twenty-five hundred feet below Nine Mile Point below nearly all of their mooring posts, and were securing for the most part a useless front, where sunken wrecks of boats and liability to storms and exposure to current drifts, etc., rendered a secure harbor for their coal boats an impossibility. This is, in effect, their concurrent, straightforward and reasonable and consistent testimony, and, in fact, they are supported by all the reasonable surroundings and circumstances, for why should they contract to pay one thousand five hundred dollars per annum for five years for a thing which could be of no use or value or service for the only purpose which they had in view, their previous lease of the whole landing having been for one thousand dollars.”
The district judge, referring to the question of laches, said: “It- is
“By every rule of the Code this error entitled plaintiffs to relief.”
While we have reached the same conclusions that the district judge did, we have done so from a somewhat different standpoint. We are 'of the opinion that the minds of the parties unquestionably met as to a
Plaintiffs are seeking to avoid loss from being made by an error in the written act to pay for something from which they have received no benefit, while defendant is seeking through the error to recover money for that which she has not given.
The district judge exonerated Sala’s agent, who caused the act, as signed, to be prepared, from any intention to lead defendants into error, and ascribes the insertion 'of the boundaries to a want of appreciation of the influence which might be subsequently claimed to have arisen by reason of the insertion of these words upon the rights of parties, and, also, to the fact that knowing the locality, he did not attach any special significance to any particular part of the Zéringue front. He, none the less, on behalf of his principal, leased the particular thing known as “the Zéringue Landing, under Nine Mile Point.”
We are of the opinion that Sala cannot rightfully take advantage of such an error not in the contract, but in the act, intending to evidence it (C. C. 1762). The thing leased could well stand as sufficiently .described without the boundaries. The boundaries were not needed for purposes of identification. If they tend to contradict or weaken the
The lessor as well as the seller (C. C. 2474) is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him. We must deal with the issues from the standpoint of the lease between the parties having been a lease of the “Zéringue’s Landing, under Nine Mile Point,” under full warranty. Article 2681 declares that he who possesses a thing belonging to another may let it to a third person, and Article 2682, that he who lets out the property of another warrants the enjoyment of it against the claim of the owner.
We think it a matter of no moment for the purpose of disposing of the particular issues raised between the parties in this ease, whether Sala owned the whole or only a part of the property he leased; for whether it belonged to him or not, he undertook to lease the whole of it as between himself and Wood & Sons. We do not think that knowledge by Wood & Sons that a part of the property leased belonged to other parties, even if that fact had been shown, and we do not think it was, would have estopped them from defending themselves against plaintiffs’ demand. Hennen’s Digest, p. 1344, No. 3.
The utmost extent to which knowledge would have affected Wood & Sons would have been to have cut them off from a claim for damages. They make no such claims here. Their position is simply defensive, and extends no further than protection to the extent that there was a failure of warranty and consideration. (17 Ann. 153.)
Wood & Sons were in possession of that property until they were evicted from a portion of the same by the lessee of the Pacific Improvement Company to the Beaver Company. It is the duty of the lessor (C. C. 296) to cause the lessee to be in peaceable possession of the thing, and he is liable for damages in case of eviction, partial or complete. (C. C. 2696.) If in the lease of a predial estate, the premises have been stated to be of greater extent than they are in reality, the lessee may claim an abatement of the rent (C. C. 2701), in the cases and subject to the provisions prescribed in the title in the Code “Of Sale.”
A lease by a riparian proprietor of a portion of the front of his property is a predial lease. The lessees have been evicted from a portion of the property leased exceeding one-twentieth part, and they are enti
We do not find error in the extent of the reduction made by the district court upon the notes executed by B. D. Wood & Sons, nor of the amount which they are entitled to have repaid to them.
We are of the opinion that the judgment appealed from is correct, and it is hereby affirmed.
Rehearing
On Rehearing.
A careful consideration of this case confirms the conviction that B. D. Wood & Sons were not aware until November 24th, 1894, that their lease from Sala did not include the twenty-five hundred feet of river front that had been sold to the Pacific Improvement Company. It had been included in the original lease from Zéringue as an integral part of the “Zéringue Landing,” and was continuously occupied and used by the lessees from 1885 until after the acquisition of the Zéringue plantation by Sala, March 7th, 1892. They were occupying it upon July 19th, 1892, when Sala (through his attorney, Joseph Lombard) notified them that “the rent of the landing and river bank “ of the Mississippi river, known as the Zéringue Landing, under Nine “ Mile Point, say 4500 feet, more or less, fronting on said river,” would be $250 per month from the first of August, 1892, payable monthly. And if Sala believed, as he would seem to have done, that the whole length of the landing was 4500 feet, he must also have believed, upon the 9th of August, 1892, when he sold 2500 feet of it to the Pacific Improvement Company, that he was selling five-ninths of the landing and that his right to collect rent was reduced in the same proportion. Nevertheless, in January, 1893, he sued Wood & Sons for rent from March 7th to August 1st, 1892, at the rate fixed by the lease from Zéringue, and from August 1st to November, 1892, at $250 per month, the rale fixed by himself as the rental value of the whole landing. There was certainly nothing in this circumstance to lead the lessees to suppose that he had parted with the title to a large part of the property. Upon the other hand, there is an abundance of evidence, positive, negative and circumstantial, making it clear beyond peradventure, that the'first intimation that Wood & Sons had that the 2500 feet in question were
The remaining question to be considered relates to the extent of the reduction in price to which B. D. Wood & Sons are entitled by reason of the reduction in the river frontage included in their lease. The judgment appealed from fixed upon 4000 feet as the total frontage of the available landing, and held that the lessees having lost five-eighths of it by reason of the sale to the improvement company were entitled to have their liability reduced in the same proportion; and the judgment as thus rendered was affirmed by the original decree of this court. Our re-examination of the testimony upon this point fails to satisfy us that any error has been committed. It is true that Mr. Pilie, an engineer who was examined on behalf of Mrs. Sala, testified that he measured the front of the Zéringue plantation and found 7200 feet between the upper boundary and the line of a tract which had been sold to the Texas and Pacific Railway Company. It is also true that Mr. Grand-jean, an engineer who was examined on behalf of Wood & Sons, measured the same property and found 8400 feet between the same points. And it further appears that the title by which Sala acquired calls for
Whilst the plantation as acquired by Sala may, therefore, have had a frontage 'of 8400 feet, it was only the upper half that was available for a coal landing and -that was used by B. D. Wood & Sons for that purpose. They had six clumps of mooring piles driven within the twenty-five hundred feet which were sold to the Pacific Improvement Company and three clumps within 1000 feet below, which affords, as it seems to us, the most conclusive evidence as to the actual location of the coal landing, since mooring piles are not likely to have been driven except for the purpose of holding boats; and, upon the other hand, it is hardly to be supposed that a coal merchant will habitually moor his boats at a point where there are no mooring piles to which to fasten them.
The learned judge a quo sums up his conclusions upon the points which we have thus considered in the following forcible language, to-wit:
“ Therefore, because they had been the lessees of the ‘ Zéringue Land- “ ing, under Nine Mile Point’; because this landing was the only one “fitted for their business; because the negotiations for compromise “ were intended by plaintiffs to secure a new lease of this landing, in its “ full extent, as they had always had it; because the extent of diminu-*30 “ tion of the landing was never the subject of discussion, the property, “ or res, being as an understood matter; and because the description, “ as written in the lease, specified in its opening clause, ‘ the Zéringue “Landing, under, or below, Nine Mile Point,’ plaintiffs’ counsel and “plaintiffs may well be relieved of the charge of neglect; for, on the “ face of the contract, there was nothing to indicate that they were to “ receive a fraction of the landing instead of the entire landing, or that “ they were to receive said landing with five-eighths, or more, of its “ only useful or available portion lopped off. The chief characteristic “ and substantial quality of the landing they thought they were leasing “was its protection from storm and current and other river dangers, “ by reason of its lying under Nine Mile Point, and, in the paper which “they signed was written nothing to indicate that they were getting, “ instead of this (the Zéringue Landing) only a stretch of river front, “ only the smaller part of which, relatively, was susceptible of use, and “ the greater part of which was of no possible service to them, and could “ not be.”
For the reasons thus given, we are of opinion that there was no error in the original decree herein rendered, and it is therefore ordered, adjudged and decreed that the same be reinstated and now made the judgment of the court.