197 So. 641 | La. Ct. App. | 1940
The lower court has correctly stated the case and found the facts in the following opinion:
"In this suit the plaintiff, M.W. Grimm, seeks to recover the sum of $1,002 from the defendant, L.G. Pugh, the consideration alleged to have been paid the defendant for an oil and gas lease covering certain property in Caddo Parish, it being alleged that the defendant owned no interest in the fee or minerals.
"On June 8th, 1938, L.G. Pugh executed this oil and gas lease to C.L. Gayle, who was acting therein for M.W. Grimm. It is alleged that this fact was known to the defendant at the time, and that the alleged consideration was at that time paid to the defendant by M.W. Grimm. Plaintiff also alleges that while the consideration recited is $167, actually the plaintiff paid $1,002 for this lease. That the defendant *642 fraudulently represented that he was the owner of one-half of the minerals in this property, which representation was believed by this plaintiff, whereas, the minerals were owned in their entirety by Mr. W.N. Burch.
"We are satisfied that there was no fraud shown in this case. The testimony should be most convincing to establish fraud. The plaintiff has failed to sustain the burden of proving this allegation. It is immaterial whether Mr. Pugh approached the plaintiff representing ownership of one-half of the minerals or thought he was the owner of one-half the minerals, which opinion was shared by Mr. Burch, who owned the fee. In executing his lease Mr. Burch thought that he was leasing only a one-half interest and that Mr. Pugh owned the other half.
"The evidence does satisfy us that Mr. Pugh actually did not own any minerals under this property. He conveyed the property in 1925, reserving one-half of the minerals. Mr. Pugh testified that he had lived on the adjoining property for over twenty years and that there had never been any development on the property in question. He testified that subsequent to the sale of the property in 1925 he had executed a separate lease of his interest to the United Gas Company. Under the facts admitted by Mr. Pugh there is no question but that the prescription of ten years has relieved the property of this servitude and that all of the minerals were owned by Mr. W.N. Burch at the time of the execution of these leases.
"Plaintiff contends in brief that the payment of the consideration in this case to the defendant under the circumstances was an error of fact and therefore entitled him to recover the amount so paid. The pertinent articles of the Revised Civil Code are as follows:
"`Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.' Article 1823, Dart's Louisiana Civil Code.
"`The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent.' Article 1824, Dart's Louisiana Civil Code.
"`The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.' Article 1825, Dart's Louisiana Civil Code.
"`No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.' Article 1826, Dart's Louisiana Civil Code.
"Unquestionably, the ownership in the defendant of a one-half interest in the minerals was the principal, and from the evidence in this case the only, cause for this contract of lease. Under the rule as stated in the last part of Article 1826 it must be presumed from the nature of this contract that the defendant knew that this was the motive or cause for this contract.
"Counsel for the defendant argues in brief that this was insurance and that plaintiff leased any interest that might have been owned by the defendant. The testimony does not bear out this contention. The testimony of all witnesses is to the effect that they thought Mr. Pugh owned one-half of the minerals.
"The defendant contends that the lessee is without right to question his lessor's title unless and until he has been dispossessed. In support of this contention the defendant cites the cases of Town of Morgan City v. Dalton,
"So in this case, a mineral lessee who discovers that the seller or lessor has no title to the minerals has the right to sue for a recovery of the purchase price where error is shown, as has been done in this case.
"The defendant takes the position that since the oil and gas lease was executed by Pugh in favor of C.L. Gayle that parol evidence was inadmissible as tending to establish an interest in immovables, citing the case of Hanby v. Texas Company,
"In this case the plaintiff alleges and proves that the consideration was paid not by C.L. Gayle to the defendant but by M.W. Grimm, and that this fact was known by the defendant at the time. In fact, the testimony shows that the plaintiff was present and participated in all these transactions. The only part played by C.L. Gayle was to have the lease placed in his name and the same was soon thereafter transferred by him to M.W. Grimm. The parol evidence, which is undisputed, was only offered to prove the payment for the lease by the plaintiff M.W, Grimm.
"The consideration recited in the oil and gas lease in question is $167. The suit is, of course, to recover the sum of $1,002 which is alleged to have been the true consideration. The defendant objected to the parol testimony tending to prove a consideration different from that expressed in the lease. The testimony was admitted subject to the objection and showed that two checks were given Mr. Pugh by the plaintiff at the same time, one being for the recited consideration and the other for $835. The defendant relies on Article 2276 of the Civil Code, which provides: `Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.'
"In the case of Brewer et al. v. New Orleans Land Company,
"So in the case now before the court, there is no allegation of error in the confection of the lease in stating the consideration or of fraud in the stating or of the reciting of the consideration. In other words, the suit in no way attacks the validity of the lease because of the consideration expressed therein.
"In the case of Felix Formento v. F. J Robert, 27 La.Ann. 489, the suit was to annul a contract of sale for fraud and to *644 recover the sum of $3,300. In that case the plaintiff offered parol testimony to prove the amount claimed although the authentic act of sale recited a consideration of $2,300. While the court annulled the sale for fraud, the recovery of the plaintiff was restricted to the sum of $2,300 on the authority of Articles 2236 and 2276 of the Civil Code.
"In still another case, viz; Girod, Executor v. Martha Vines, 23 La.Ann. 588, 589, the suit was to annul and rescind a sale of immovable property on the ground of lesion beyond moiety. The consideration recited in the deed was $100. The defendant alleged that the services rendered were worth $600, and this was proven. It is to be noted that the deed in that case did not say $100 and other valuable service, etc. The court said this: `In it the parties agreed and stipulated that the price of the land was $100, and they can not show by parol evidence any other price.'
"The reason behind Article 2276 of the Civil Code and the decisions cited is excellently expressed in Greenleaf on Evidence, Vol. 1, art. 275: `When parties have deliberately put their engagements into writing, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquim between the parties, or of conversations or declarations, at the time or afterwards is rejected.'
"We shall not review all of the cases cited by counsel for the plaintiff, but shall restrict our opinion to a review of the principal cases relied on. The cases of Dickson v. Ford, 38 La.Ann. 736, and Queensborough Land Company v. Cazeaux,
"The plaintiff cites the rather recent case of Morris v. Monroe Sand Gravel Company,
"This case does not review or discuss the many earlier decisions on this question. However, a reading of the facts in the case readily shows the reason for the admission of parol testimony. In this connection we quote from the decision: `The deed recites that the consideration of the sale was $1.00 cash and valuable services rendered by the said Manning McGuire to his father, * * *'
"That parol testimony is admissible to explain such a recitation in a deed is conceded by all authorities and is in line with our jurisprudence permitting parol evidence in such cases. Therefore, in this case if the plaintiff is to recover it will be limited to the consideration expressed in the oil and gas lease.
"Defendant next contends that it is incumbent on the plaintiff to show a perfect title outstanding or that he has suffered an eviction before a recovery can be had in this case. We are satisfied from the evidence that a perfect outstanding title has been shown and that the defendant L.G. Pugh did not own any interest in the minerals. As to the eviction, the case of Brewer v. New Orleans Land Company, supra, disposes of this contention. In considering this question the court said: `Therefore, when defendant sold to plaintiffs, it sold the property of another. The Civil Code provides that the sale of the property of another is null, and also that it may give rise to damages if the purchaser was ignorant of the fact that the property belonged to another. C.C. art. 2452. In such case it is not necessary that the purchaser be actually evicted before suing for the purchase price paid. Bonvillain v. Bodenheimer,
"The defendant contends that in the event of recovery that M.W. Grimm is entitled to only $83.50 or one-half of the recited consideration because the testimony of A.C. Gayle was that he was entitled to one-half of the money recovered in this case.
"The undisclosed relations between M.W. Grimm and A.C. Gayle can in no way effect the defendant L.G. Pugh, and in any event A.C. Gayle would now be estopped to assert any claim against Mr. Pugh on the same cause of action.
"For the reasons assigned in this opinion there is judgment in favor of the plaintiff, M.W. Grimm and against L.G. Pugh in the sum of $167, with legal interest from judicial demand and all costs of this suit." *645
A judgment was signed in accordance with the above opinion, and the plaintiff perfected an appeal. The defendant has answered the appeal, praying that plaintiff's demands be rejected in toto. Plaintiff contends here that he should have judgment for the full amount paid, as shown by the cancelled checks and parol testimony.
Under the authority of Queensborough Land Company v. Cazeaux et al.,
But in a case similar in many respects, to-wit, Brewer, et al. v. New Orleans Land Company,
"That article is an exception to the general rule that parol evidence is not admissible to vary or contradict the recitals of a written act of sale. Dickson v. Ford, 38 La.Ann. 736; Landry v. Landry, 40 La. Ann. 229, 3 So. 728. The purpose of the article is to enable a vendee to maintain the validity of a sale, when attacked on account of the consideration, by showing the true consideration. In the case at bar, the validity of the sale is not attacked because of the consideration expressed in it, and therefore the article is not applicable. Nor is the case of Queensborough Land Co. v. Cazeaux,
"In view of the fact, therefore, that the only evidence offered to show the additional consideration was not admissible, we are of the opinion that plaintiffs cannot recover the excess consideration claimed, and hence that this item must be reduced, as to each plaintiff, from $606.67 to $500, the consideration stated in each deed."
This same distinction was recognized and affirmed in Lockwood Oil Company v. Atkins,
The sum and substance of the holding in these cases is that parol testimony is not admissible to prove a greater consideration than that set out in the instrument, unless the instrument is attacked because of want of consideration or insufficiency of consideration; but parol testimony is admissible to show that the consideration set out in the deed or instrument was not wholly paid, although receipt of it is acknowledged in the written contract.
Whether we agree with the above rule or not, we feel it would be a useless gesture for us to decide contrary to the two decisions of the Supreme Court. However, we will have to go no farther than the case at bar to find the injustice such a rule may work. Plaintiff has actually paid $1,002 to defendant for a lease on land which plaintiff did not own, which lease is, of course, a nullity, and all plaintiff can recover is $167, which is the recited consideration in the lease.
We believe the recited consideration should be strong evidence that it is the *646 correct consideration and should not be held to be an incorrect amount unless the testimony to the contrary is very strong and convincing. But where there is no doubt regarding the exact consideration paid, and it is far in excess of the amount stated, as in this case, the law should give plaintiff relief.
However, under the authority of the decisions cited above, the judgment of the lower court is correct and affirmed, with costs of appeal to be paid by appellant; all other costs to be borne by defendant.