63 So. 892 | La. | 1913
Lead Opinion
This is the second suit brought by plaintiff against defendant on a verbal contract, in accordance with which plaintiff engaged himself to render services to defendant as overseer and manager.
In the first suit he claimed $1,200* for the year’s services, which he recovered. In the present suit he claims 10 per cent, on the net profits on the plantation made in 1905. His portion of the profits he claims amounts to $5,000.
Defendant in the present suit excepted to plaintiff’s suit on the ground that on March 25, 1905, the plaintiff filed suit (which was the first suit to which we have referred before) asking for $1,200 as salary for the year, and averred that plaintiff in this suit asked for less than is now claimed under the contract before mentioned. That, having obtained judgment for the lesser amount which he chose to claim, plaintiff has no ground upon which to recover a further sum. That he might have in the first suit recovered the additional amount, if any was due. That he might have introduced his evidence and recovered judgment for all that was due him. That the contract being the same, also the cause of action, he cannot now recover.
Plaintiff, on the hearing of defendant’s exception, offered evidence, part of which consisted of the petition in the first suit, in which he alleged that at the beginning of the year 1905 he took charge of defendant’s plantation in accordance with a verbal agreement, which is the same as- the contract mentioned above. Plaintiff avers that, while he was in defendant’s field busy directing the work, he was notified to return to the sugar house, and that on his return he met the defendant, who, as he (plaintiff) alleged, arbitrarily discharged him. That he thereupon asked for a settlement, which defendant refused to make and instead proposed to pay him $100 for all services rendered to the date of the discharge.
Plaintiff alleged further that he had averred 'in his petition in the first suit that he could not obtain a judgment for the net profits because it was not possible at the time he was discharged to fix the amount of the profits for the year 1905. He brought his suit early in the summer, the crop had just been pitched, and the amount of net profits it would bring was not at that time by any means a certainty.
Plaintiff also averred that he is an overseer and manager of plantations; that he was thrown out of employment and could not find anything to do.
He asked for judgment for the $1,200, and also asked to have his right to the 10 per cent, net profits of the crop of 1905 reserved.
This exception was overruled.
Defendant then pleaded the general denial and made certain admissions, such as that he had employed the plaintiff as his overseer at a hundred dollars per month and that he was led to believe that he would be relieved from all anxiety and worry; that he was a competent and good manager and in every respect that he would give entire sat
The Exception.
No question but that plaintiff sought to have the right reserved to recover the amount in another suit subsequent to the first. Although the plaintiff had asked to have the right to the net profits reserved, the judgment of the district court is silent in regard to it. Also the judgment of the Court of Appeals. When the question came up before this court, there was no mention made of this right which the plaintiff wished to have reserved. In fact it was not an issue in any way.
Taking up the question of the finality of the judgment heretofore rendered, we have noted that the plaintiff demanded all that was due him at the time which it was possible for him to recover, and as to the balance, the right which he was -anxious to have reserved, he gave reasons for not demanding it at that time, viz., that it was not susceptible of proof; there was no telling just then how much the crop would bring at the end of the season; that while growing it had no marketable value; and that was not the profit intended under the terms of the contract.
Unquestionably the net profits could ■ not be due and exigible at the date the first suit was brought. In consequence, this amount was due at a different time and demandable separately from the fixed amount which had already been paid. The article of the old Civil Code (2060) is quite clear and pertinent. It excepts sums due at different times and demandable separately. It requires all demands to be made at one time under one contract and for all amounts due under one contract; but amounts not demandable when suit is brought are not lost by not including them in the suit.
Had plaintiff sought to recover the amount in the first suit, he would not have been able to make the required proof.
The decisions cited by defendant in support of his exception are different in their facts. In each of these decisions the creditor demanded less than the amount due and exigible under the same contract, although it was possible to have demanded the whole amount, and different from the present suit in which it would not have been possible to prove the sum which could only become due thereafter.
We have examined the decisions cited and not in a single instance does it appear that the amount demanded in those cases was not susceptible of proof. We are therefore of the opinion that the exception was properly overruled.
Opinion on the Merits
On the Merits- — The Onus of Proof.
We have arrived at the conclusion that it "is not possible to take the private sale in •question as the basis of settlement. With •candor, defendant owned that the purpose in making this sale was to obviate the necessity of keeping an account and of having to produce an account if called upon by the plaintiff on the trial.
Defendant, having given an undivided "tenth of the profits, interested Mr. Sharp to sin extent that conferred upon him the right to object to a private sale of the crop. The :son made no actual payment of the price. While it is true that it was sold at the market price of sugar and molasses on the public markets of New Orleans at the time of sale, less the costs of shipping and selling, it remains that, despite the right of the defendant to dispose of that which belonged to the plaintiff of his own, he could not dispose of that which belonged to the plaintiff in any other manner than crops are disposed of usually. It is not the usual way that crops are disposed of, and it is not at all probable that either party at the time the contract was entered into thought for an instant that the defendant would sell his whole crop to his son. While it is proven that at times planters dispose of their crops as the defendant did, it is common knowledge that crops are nearly always sold in open market, and nothing suggests that in this instance it should have been different.
The contention of defendant is that he held the crop for a considerable time in order-to obtain a better price; that the amount allowed plaintiff, if any amount be allowed, should be calculated upon the actual amount for which the crop sold in the New Orleans sugar market six months after it had been manufactured; and that, since plaintiff is to share in the benefit obtained by the delay, he should bear his proportion of expenses for holding the crop.
It occurs to us that that is fair, and we will, in ascertaining the different amounts, take those expenses in consideration and allow those which in our opinion should be allowed.
Considering the facts and the circumstances, unquestionably defendant made advances to plant, cultivate, and gather the crop as well as manufacture the cane into sugar. The amount advanced must be fixed and’ the interest it bears. There seems to be no question about the amount. We take it as fixed by the judgment of the district court
As to the interest for the three months, that also, if any interest be allowed, must be reduced to 5 per cent., because it does not seem that it was not covered by the allegation in the petition nor by the testimony.
The defendant positively limited in his testimony the interest at 8 per cent, to November 1, 1905.
We are informed that the theory of the district judge .in not allowing interest during these three months was that the expenses for grinding are not paid until the end of grinding, in this instance to January 30, 1906.
The difficulty in allowing interest for these three months is that we have not the necessary data. The record shows, as per pay roll for October, November, December, and January, $22,278.80. This roll cannot be taken for the calculation because it includes October. It does not appear what the exact amount which was expended for labor in the other three months was. The expenses of October were counted with the expenses of the other three months in so far as relates to labor account. It does not appear how much was expended for the three months.
His contention is that there was an error of $75 committed in the judgment appealed from. It was, we judge, an oversight and will have to. be deducted.
The next disputed item is for $1,500 for 75 acres of seed cane. Seed cane was put down less than was necessary to plant a similar number of acres as had been planted in 1905. If a like number of acres of cane had been put down as was put down in 1905, there would have been just that number less for grinding than there was actually ground, for which plaintiff now receives an accounting. This was allowed by the judge of the district court, and, as plaintiff did not in time urge complaint against the item, it will remain as was found heretofore. The defendant was entitled to put down the seed cane as he chose to do. The judge of the district court, after having considered the matter, fixed the amount at $12 an acre for this cane in windrow. We infer that this is a correct amount and will pass to the next point.
Objection is urged by defendant because this cane, amounting to 375 tons, was worth more than the amount allowed. The defendant paid a Mr. Le Blanc for his cane the amount which was allowed in this instance. Objection is urged on the ground that there were special reasons for increasing the amount of this claim. We have read those reasons and they are not convincing. We will leave the amount as heretofore found by the district judge, and that was $2.85 per ton.
Defendant charged for the derrick $3,310 and $1,514.32 for the costs of the oil tanks. This was properly not allowed. As to the deterioration or depreciation of the derrick, to wit, $3,310, the loss in value of the oil tank, $1,514.32, or the 16 mules, $3,760, or 2 mules, $312, or 2 cane loaders, $586, which the defendant claims as expenses for the year 1905, they also were properly, as we think, not allowed as they, were improvements on the place which remained with the place and in which plaintiff had no interest as an owner. In the first defendant charged for the price or value of the foregoing improvement. This was not allowed.
The 'judge, however, properly allowed an amount for their use and depreciation, which was carried in the expense account. Ten per cent, depreciation was allowed on the derrick and oil tank; 50 per cent, on the cane loader. This has the appearance of beipg fair and will remain charged as it is.
It seems to us that it was the correct method to charge the wear and tear on the cane derricks, oil tanks, mules, and other similar property. This amount was fixed at 10 per cent., properly enough, we think. This proportion of the expenses was properly charged to the crop of 1905.
It seems to us that the item headed Mitchel Le Blanc claim was as justly settled as it was possible to settle it. The cane bought had been charged to the partnership’s account and settled as a partnership claim.
The salary of Donis McBride reduced from $1,000 to $500. We have found no good reason to change it.
Prescription.
“I being informed by said Charles Deiber that J. M. McBride was then temporarily away with his family, and while he (the said Charles Deiber) did not live in the domicile and residence of defendant, he was, as be informed me, in charge of the same and was at tbe time of making this service at and in the domicile of J. M. McBride.”
In addition, defendant was personally served with required papers in tbe city of New Orleans.
We take it, after reading tbe papers, that tbe one upon whom tbe papers were served was a resident on tbe plantation.
It has been held that service on tbe overseer is sufficient. Maxwell v. Collier, 6 Rob. 86.
To tbe same effect is Succession of McCalop, 10 La. Ann. 225; Rousseau v. Gayarre, 24 La. Ann. 855.
Moreover, tbe three years’ time pleaded in support of tbe plea bad not elapsed at tbe date that defendant first filed an appearance in tbe suit.
Again, even if not sufficient and defective, it interrupted prescription, as will be made evident by tbe following precedents: Leon v. Bouillet, 21 La. Ann. 651; Sorrell v. Laurent, 27 La. Ann. 70; New Orleans Canal & B. Co. v. Tanner, 26 La. Ann. 274; Martinez v. Vives, 30 La. Ann. 818.
Although there is one authority to tbe contrary, expressed in a sentence which may be deemed as slightly obiter, we are not inclined to tbe view that tbe personal service on one away from bis domicile but in tbe state is not sufficient to interrupt prescription.
Tbe defendant cannot gather comfort from Carrere v. Aucoin, 122 La. 258, 47 South. 58, nor s. c., 127 La. 62, 53 South. 427, neither of which is in point.
It is therefore ordered, adjudged, and decreed that tbe judgment appealed from is amended by deducting 10 per cent, of $75 from tbe judgment, leaving amount of the judgment to $1,480.73. With this amendment the judgment of tbe district court is affirmed; costs of appeal to be paid in tbe proportion of nine-tenths by defendant and one-tenth by plaintiff.
Rehearing
On Application for Rehearing.
Tbe petition of tbe plaintiff was filed on January 15, 1908. On January 30, 1908, defendant appeared and excepted to plaintiff’s demand. This exception was taken up, evidence adduced, and was overruled. On June 14, 1909, tbe defendant answered to tbe merits, and in due course tbe case was tried, and judgment rendered in favor of the plaintiff.
Plaintiff’s cause of action did not arise until after tbe sale of tbe crop was completed in July, 1906. It follows that tbe petition, exception, and answer were filed within tbe three years. A defendant cannot “make an appearance and at tbe same time urge a want of citation.” City of New Orleans v. 'Hall, 21 La. Ann. 439.
“The appearance of the attorney supplied or cured the want of citation. Le Blanc v. Perroux, 21 La. Ann. 27; New Orleans v. Walker, 23 La. Ann. 803; Bartlett v. Wheeler, 31 La. Ann. 540; Succession of Baumgarden, 35 La. Ann. 130.”
As after bis voluntary appearance in the court a qua tbe defendant could not have excepted to tbe citation, it follows that be cannot urge in tbe appellate court an objection that tbe citation was not properly served.
For these additional reasons we bold that tbe plea cannot be sustained.
Rehearing refused.
