166 So. 2d 1 | La. Ct. App. | 1964
Lead Opinion
Defendant has appealed to this Court from a money judgment granted to plaintiff in the district court.
The record reveals that defendant was building a sewerage disposal plant for the Town of Lake Arthur, Louisiana. Adjoining the land upon which the plant was to be built was a tract of land owned by Edward D. Hebert. Defendant rented a portion
Plaintiff instituted the instant suit alleging various items of damages. To this suit defendant filed an exception of non-joinder and exceptions of no cause and no right of action. The exception of non-joinder was maintained by the trial court, and the exceptions of no cause and no right of action were overruled. Plaintiff then amended his petition, and defendant filed its answer thereto, denying the allegations contained therein. The case was tried in the district court, and judgment was entered in favor of plaintiff and against defendant in the sum of $2,000.00. This appeal followed.
In his finding of facts, the trial judge found that Hebert had not authorized defendant to bury or dump debris on his property. He also found that defendant had agreed with plaintiff to remove the waste material from his property.
This Court is of the opinion that the letter from defendant to Barnard & Burk, Inc., as agents and engineers for the Town of Lake Arthur, dated November 17, 1961, constituted a stipulation pour autrui for the benefit of the plaintiff.
LSA-C.C. Article 1890 provides:
“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.”
Accordingly, when the Town of Lake Arthur paid to defendant the balance due on the contract in accordance with the terms set forth in the letter dated November 17, 1961, written by defendant and sent to the engineers for the Town of Lake Arthur, defendant then became bound to plaintiff for the removal of the debris from his property, or for damages sustained as a result of their non-removal.
As stated before, the trial court awarded plaintiff $2,000.00: $500.00 for the removal of the trash and debris on top of the ground; $1,000.00 for the removal of the trash and debris buried on the property; and, $500.00 for the loss of use of the property. After an examination of the record, this Court is of the opinion that this award is not excessive.
Counsel for defendant has re-urged the exception of no cause and the exception of no right of action in this Court. We are
For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.
Affirmed.
Rehearing
On Application for Rehearing.
En Banc.
In application for rehearing, the defendant-appellant has pointed out that we inadvertently erred in our original opinion by stating that the Town of Lake Arthur had not in fact paid the defendant contractor the retainage due on the contract, after the contractor agreed to pay plaintiff by his letter of November 17, 1961.
In this letter of November 17th, the defendant contractor wrote the consulting engineer, who had previously refused to make a final acceptance of the work because of the contractor’s failure to remove the waste material. The contractor stated in the letter that he now “has agreed with [the plaintiff] Mr. Norman Ordoneaux, present owner of the property, to remove this waste material as soon as possible, and we are confirming same to him by carbon copy of this letter.” The contractor’s letter concluded: “In view of the fact that we have made this agreement and the fact that the plant was substantially completed and turned over to the Owner by us in June of this year, we respectfully request that final acceptance of the work now be made.”
In reply and in reliance upon this agreement of the defendant to remove the waste material from the plaintiff’s property, the consulting engineers executed a final acceptance of December 1st (see P-4). The defendant’s agreement to remove the waste material from the plaintiff’s property thus constituted a stipulation per autri for the benefit of the plaintiff, since, in reliance and in return for such agreement, the en-gmeer and the Town accepted the defendant’s work.
The defendant thus received the bargained-for final acceptance, in return for its promise to remove the waste material from the plaintiff’s land. It is immaterial that the contractor’s surety, approximately a month after this final acceptance, instructed the Town not to pay the remaining re-tainage because of several problems between it and the contractor, Tr. 94-95.
We have m our original opinion disposed of the other contentions raised by the defendant-appellant’s application for rehearing. The application is denied.
Rehearing denied.