157 So. 317 | La. Ct. App. | 1934
In the latter part of the year 1928, the city of Shreveport, acting under Act No. 187 *318
of 1920, as amended by Act No.
After the paving had been completed, and accepted by the city, in September, 1929, the liability of each abutting owner was ascertained, assessments were made, and the evidence of the lien securing payment of the amounts assessed was registered in the mortgage records of Caddo parish. The amount found due by defendant was $588.45. This amount not having been paid, the city, on January 29, 1931, instituted this suit against defendant to recover judgment therefor, and to enforce the lien and privilege against her property as provided by Act No.
Defendant, answering articulately, denied all the allegations of the petition, save her ownership of the property described therein. She affirmatively alleged that the fill on Ashton street greatly damaged her property and reduced the sale value thereof, in this: That the loss of rentals on the basement of the building amounted to $1,500, and the decrease in sale value of the entire property was $500. She prays for judgment in reconvention for these amounts. In the alternative, her position is this: That should the court hold she is not entitled to judgment against plaintiff for said amounts, "then she is entitled to have said damage offset any claim that the City may have for paving or grading said street." Against defendant's reconventional demand, plaintiff interposed a plea of prescription of one year. Act No.
The first contention of defendant to be given consideration is that which is directed against the sufficiency of proof adduced by plaintiff in support of the verity and correctness of the amount of the paving claim sued for, and the validity of the lien and privilege relied upon to secure its payment. If the proof offered by plaintiff does not establish its contention in these respects, other questions raised by the pleadings need not now be passed upon.
The record contains the petition of the abutting property owners on that part of Ashton street included in the paving program, asking that the street be paved, and the ordinance of the city declaring that said petition was signed "by more than the number legally required of the property owners whose property abuts upon said street," and in which ordinance the paving was ordered to be done with asphaltic concrete, according to plans and specifications attached thereto and thereby adopted. The ordinance also directs that the paving be done under the provision of Act No.
Defendant did not petition for the paving to be done. She registered no objection to its being done, nor to the method and manner in which it was done, nor to the character or quality of the paving. *319
We are of the opinion that the evidence submitted by plaintiff is sufficient, under the circumstances, to prove its case in so far as relates to the amount sued for and the lien and privilege securing its payment. At least, this documentary evidence makes out a strong prima facie case against which defendant has tendered no countervailing proof. Her answer on this subject is merely a general denial. She submits no facts or figures to even indicate that any injustice has been done her, or that the amount charged to her is incorrect to any extent. She does not intimate that any fraud was practiced in the letting of the paving contract or in its execution.
The ordinance fixing the liability of each abutting property owner discloses that all were charged and assessed with the same unit price, based upon frontage, as required by section 2 of Act No.
In matters of this kind, property owners should not passively stand by and allow unlawful contracts to be executed, or patently improper or faulty material used in the improvement in which they are interested; objections or protests should be made at such time that corrections would be effective.
"In this case the work was performed by the contractors and accepted by the municipal authorities. In the absence of fraud, this acceptance is conclusive that the work was performed in accordance with the terms of the contract. Kelly v. Chadwick,
To same effect is City of Shreveport v. Chatwin et al.,
It was held in Manning v. City of Shreveport,
The testimony in the case at bar, we think, establishes that defendant's property suffered damage, a diminution in market value because of the high grade in front of the basement door, which made entrance therein practically impossible for vehicles. It is certain that if the basement is ever used for vehicles another door will have to be cut in the rear wall of the building. This would be inconvenient to reach from any direction. The amount of this damage is not clearly proven. We shall not undertake the fixing of the amount thereof because it is our opinion recovery thereof is barred by the prescription of one-year pleaded by plaintiff. It is true that said damages, regardless of the amount of same, existed simultaneously with the paving claim due plaintiff, but we do not think the former compensable as against the latter.
As to the compensable character of debts, article 2209, Civil Code, is controlling. It reads:
"Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. * * *"
The words "equally liquidated" in this article are self-defining, and mean that if one of the debts is not determined, or susceptible of easy and brief determination, such debt cannot be successfully pleaded as set-off or compensation against one liquidated, certain, and determined. If it requires a lawsuit to determine the exact amount due under a cause of action, certainly it follows that the amount involved in such cause of action is not liquidated, but, on the contrary, is clearly in unliquidated form. And such was the claim of defendant for the damages to her property resulting from the raise in the grade of Ashton street adjacent thereto.
In Berens v. Ker, 28 La. Ann. 96, it was held that it was incompetent to set up in compensation against a promissory note an unliquidated claim for attorney's fees.
In Owen, Adm'r v. Vanderslice, 9 La. Ann. 189, an undetermined amount due on account *320 for work was held noncompensable against an unconditional promise to pay a certain sum of money.
In Goldman v. Goldman Masur, 47 La. Ann. 1463, 17 So. 881, it was held that the penal obligation of plaintiff not to engage in business could not be successfully pleaded against the promissory note of defendant on which suit was instituted.
To the same effect is Burbridge Co. v. Anderson et al., 32 La. Ann. 877, in which the court declared that an unliquidated account could not be used to set off the obligations of a promissory note.
In Franz v. Schiro,
The case of Peterson v. Rabito et al.,
In the lower court, and here, defendant invoked the doctrine brought down to us from the Romans: "Quae temporalia sunt ad agendum perpetua, sunt ad excipiendum." This doctrine was applied to defendant's case by the judge of the court aquo. In effect it means that defendant could not use her cause of action as a means of attack or sword, but could use it as a shield or defense to the amount of the city's claim. This would unquestionably be true, even though defendant's claim for damages had prescribed, if such claim were "equally liquidated" with that of plaintiff. Oilbelt Motor Co. v. George T. Bishop, Inc.,
For the reasons herein assigned, the judgment appealed from, in so far as it decreed that the amount due by defendant to plaintiff herein sued for was offset and compensated by the damages to defendant's property, herein pleaded in compensation, is annulled, avoided, and set aside; and the plea of prescription interposed by plaintiff to the claim of defendant, pleaded in compensation, is sustained. The judgment in favor of plaintiff did not include attorney's fees of ten per cent. fixed by the statute. Plaintiff is entitled to these fees. The judgment in plaintiff's favor is hereby amended so as to carry attorney's fees of 10 per cent. of its amount, principal and interest; and the judgment appealed from, except in the respects herein reversed and amended, is affirmed. Costs to be paid by defendant.