10 So. 2d 61 | La. | 1942
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *614
This case is a sequel of Cerami v. Haas,
"November 1, 1938
"Mr. W.D. Haas, Jr., "Bunkie, La.
"This will confirm our verbal understanding regarding title of the West 1/2 of NE Quarter, of Sec. 6, T 2 S.R. 3 East, Avoyelles Parish, La. It is understood and agreed that we will execute royalty deed for an additional one-quarter of the royalty interest under the above described land; upon perfection of title defects now being straightened out. The price to be as formerly agree[d] upon, or $30.00 per acre base.
"Very truly yours,
[Signed]: "Sam Cerami."
Cerami complained in his suit against Haas that the recording of the letter was a slander of Cerami's title and interfered with his right to sell or otherwise dispose *616 of his property. Hence Cerami characterized his suit against Haas as an action for slander of title. He averred that the instrument which Haas had placed on record was null for the reason that it was given without consideration, and for the further reason that it was not signed or accepted by Haas.
Haas filed an exception of no cause or right of action in Cerami's suit against him, and the exception was sustained by the district court. On appeal the judgment dismissing Cerami's suit for want of a right of action was affirmed, on the ground that the instrument in question was an offer on the part of Cerami to sell the royalty interest to Haas at the price stated, and that the recording of the instrument by Haas was an acceptance of the offer, and created a valid contract. The court therefore held that Cerami's only right of action was to sue for specific performance of the contract.
When the judgment rendered in Cerami v. Haas had become final, Haas tendered to Cerami the price stipulated in the agreement, amounting to $600, and on Cerami's refusal to accept the money Haas deposited it in the registry of the court, and brought this suit against Cerami to compel specific performance of the agreement. Cerami answered by repeating his contention that the instrument was not a valid contract, for the reasons for which he had made the same contention in his suit against Haas. Haas pleaded in his petition in the present suit that the judgment rendered in the suit of Cerami v. Haas had settled finally the question of validity of the instrument sued *617 on, and that its validity was therefore res judicata. The judge, after hearing the case on its merits, gave judgment for Haas, ordering Cerami to transfer to Haas the one-fourth royalty interest for the $600 which Haas had deposited in the registry of the court, and ordering the clerk of court to pay the $600 to Cerami. It was declared in the judgment that if Cerami should fail to comply the judgment should stand as a conveyance of the royalty interest to Haas. Cerami is appealing from the decision.
The principal argument of the appellant is that the question of validity or invalidity of the instrument which Haas is seeking to enforce was not an issue in the case of Cerami v. Haas, and hence that the court did not have jurisdiction in that case to declare the instrument valid. Cerami relies mainly upon the decision in Siegel v. Helis et al.,
Even if the validity of the contract sued on in this case should not be considered, strictly speaking, res judicata, by the judgment rendered in the case of Cerami v. Haas, that judgment, as far as it went, settled finally the law of the case. Keegan v. Board of Commissioners,
When the court decided in the case of Cerami v. Haas that the filing of the instrument by Haas for registry in the recorder's office was an acceptance of the offer made by Cerami, the court did not have before it the affidavit which Haas had made under the signature of Cerami, and on the same page, acknowledging the agreement between Cerami and Haas. When the instrument sued on was offered in evidence in the *619 present case, it was offered with the affidavit, — thus:
"State of Louisiana
"Parish of Avoyelles:
"Before me, the undersigned authority in and for the Parish and State, personally came and appeared: W.D. Haas, Jr., who being first duly sworn, did depose and say: That the above and foregoing instrument and agreement was executed by Sam Cerami on the date first above written in the presence of affiant; that the said Sam Cerami executed same of his own free will.
[Signed] "W.D. Haas, Jr.
"Sworn to and subscribed before me this 10th day of February, 1939.
[Signed] "C.E. Laborde, Jr. "Notary Public".
This affidavit, although it is not a formal acceptance on the part of Haas, is an acknowledgment by him in writing of the verbal understanding referred to in the instrument signed by Cerami, and, taken in connection with the instrument signed by Cerami, constitutes written evidence of the agreement between the parties. In fact in the affidavit of Haas he refers to the instrument signed by Cerami as being an "agreement". Aside from this written evidence of the agreement the acceptance by Haas was adjudged sufficient in the case of Cerami v. Haas.
It appears that the statement in Cerami's letter to Haas, that a deed for the one-fourth royalty interest would be executed "upon perfection of title defects now being straightened out", had reference to a suit entitled Angichiodo v. Cerami et al., then pending in the United States District Court *620
for the Western District of Louisiana. A judgment satisfactory to Haas was rendered in that suit before the present suit was filed.
Cerami contends now that the price stipulated in the instrument which he signed, amounting to $600, was "out of all proportion with the value of the" one-fourth of the royalty interest referred to in the instrument. Cerami relies upon article
The judgment is affirmed.
Addendum
In the brief filed by the appellant in support of his application for a rehearing he complains of the statement made by the court that there was no oil well or gas well drilled or being drilled on the land referred to in the agreement, or on any adjacent land, on the date of the contract. The appellant points out in his brief that an oil well was commenced on the Haas land, adjoining the Cerami land, soon after November 1, 1938, and was completed before February 10, 1939. It is said that the date of the contract was not November 1, 1938, which was the date on which Cerami signed the instrument, and that the date of the contract could not have been earlier than February 10, 1939, which was the date on which Haas signed the affidavit and recorded the instrument. The court was in error, therefore, in the statement that on the date of the contract there was no well drilled or being drilled on any adjacent land. It appears that the well referred to in appellant's brief was a producer *622
of oil in paying quantities and was only about half a mile from the Cerami land; but the contract nevertheless was an aleatory contract, because there remained some doubt whether oil or gas would be produced on the Cerami land. We adhere to the ruling that there is no right of action to annul a contract for the sale of mineral rights on the ground of lesion, under article
The petition for a rehearing is denied.