Guerin v. BonaventureGuerin v. Bonaventure
- Reporters:
- ,
- Before:
- Lottinger
This is a suit by petitioner, Mary Guerin, in which she claims certain interests in partnership and business ventures which she allegedly carried on with defendants, Ivy J. Bonaventure, and John L. Stelly. The suit was dismissed on an exception of no right of action, and the petitioner has taken this аppeal.
The petition allegés that petitioner, together with Ivy J. Bonaventure and John L. Stelly, are the owners of a- cоmmercial partnership doing business under the name of L&M Company, She claims ownership of a twenty-five (25%) per cent interest thеrein. She further contends that she owns a 25% interest in a partnership doing business under the name of Stockyard Steak PJouse. Both of sаid partnerships are verbal, no written articles of partnership having been shown.
Thus declaring herself as owner of 25% of the sаid businesses, the petitioner caused a writ of judicial sequestration to be issued against said businesses, under which all assets thereоf were seized by the sheriff. She also seeks to be declared the owner of 25% of all assets of said partnerships.
. The defеndant, Ivy J. Bonaventure, first filed a motion to, dissolve the writ of sequestration, alleging therein that he and
Following hearing on the exceptions, the Lower Court rendered a judgment thereon mаintaining the exception of Ivy J. Bonaventure and dismissing the suit as against both defendants, and further dissolving the writ of sequestration.
Although the Lower Court did not cite any law or jurisprudence upon which its decision was'based, said judgment was apparently based on 'Article 2804 of the Louisiana Civil Code and the cases decided thereunder. Said article provides as follows :
“All partnerships are null and void which are formed for any purpose forbidden by law or good morals. But all the partners in such a partnership are liаble in solido; to third persons who may contract with them without a knowledge of the illegal or. immoral object of the partnеrship.
Editorial Comment. R.S. 9:3401 (Acts 1918, No. 248, § 1) makes it a prerequisite to carrying on a partnership business that the partners execute a certificate listing the name of each partner, his residence, the name of the firm, the term of the partnership's duratiоn and the locality of the place of business. This certificate is to be filed in the office of registry for conveyances.
R.S. 51:281 (Acts 1918,' No. 64; § 1;• Acts 1926, No. 302, § 2) requires as a condition prerequisite to conducting business under an assumed name .that the parties at in-. terest "execute a certificate to be filed in thq, of fice, of record for. conveyances seU, ting forth the name of thе business, the real names of the -parties at interest execute a certificate, to be filed in the office of reсord for conveyances, setting forth the name of the business the real names of the parties at interest and the address of such persons.”
In Sparrow v. Sparrow,
Subsequently,.in Jackson v. Hampton, La. App.,
“It ‘ is ■ established ■ that concubines, although under certain disabilities- in the interest of good morals, are not prevented from asserting claims arising out of business transactions between themselves, independent of the concubinage. But the clаimant must’ produce strict and conclusive- proof before he can be afforded relief.” ' ' ' ■ _
Tulane Law Review, Vol. 32, p, 127, in quеstioning the majority opinion in Sparrow v. Sparrow (supra) said:
“If, however, services tendered • b.y. ¡the concubine ,in.business by the pаrties are. distinguishable-from-services rendered in*478 the capacity of concubine, the claimant should be' entitled to cоmpensation for those services regardless of the original motive in coming together.”
The evidence adduced upon hearing of the exception of no right of action indicates that the petitioner and Bonaventure lived together sеveral times during the period from 1947 until shortly before the filing of the suit. She inherited money from her mother, and received funds from the dissolution of the community between herself and her husband, which were apparently invested in the business conducted by herself and defendants. For the years 1963 and 1964 the partnership returns for the L&M Amusement Company and the Stockyard Steakhouse show the owners thereof to be John L. Stelly and Mary C. Bonaventure. The checks drawn on the L&M Amusement Company were signed jointly by petitioner and defendant Stelly. Petitioner performed other services for the various enterprises.
While we do not condone the immoral and reрrehensible relationship which existed between petitioner and defendant Bonaventure, we do feel that the pleadings and evidence disclose a right of action. Furthermore, the exception of no right of action was filed only by defendant Bonaventure, and the Lower Court, in maintaining the exception, dismissed petitioner’s action as against both defendants, althоugh no immoral relationship was shown between petitioner and defendant Stelly.
We are of the opinion that a right of aсtion is shown herein by petitioner. She is entitled to her day in court to show, upon trial of the merits, whether she is entitled to the rights claimеd. Only then may justice be done.
For the reasons assigned, the judgment of the Lower Court is reversed, and there is judgment herein in favor of petitioner and against defendants dismissing the exception of no right of action, reinstating the writ of sequestration, and remanding this matter to the Lower Court for trial on the merits.
Judgment reversed and remanded.