Opinion
No. 6016.
March 2, 1964. Rehearing Denied April 6, 1964. Writ Refused May 27, 1964.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA, STATE OF LOUISIANA, HONORABLE JOHN R. RARICK, J.
Palmer Palmer, by Charles B.W. Palmer, Amite, for appellant.
Mary Purser, Amite, for appellee.
Before LOTTINGER, HERGET, LANDRY and REID, JJ.
Plaintiff, Joseph A. Ory, instituted this action on open account against defendant, Theodore W. Griffin, seeking recovery of sums allegedly paid by plaintiff for defendant's account for equipment and supplies. Also included in the account are cash advances made by plaintiff to defendant and the price of a crawler type tractor purportedly purchased by plaintiff for defendant but title to which was placed in plaintiff's name as a matter of convenience.
The account aggregates $9,884.61, subject to credits in the sum of $2,384.81, leaving a balance of $7,499.80 for which latter amount plaintiff seeks judgment. The tractor in question was purchased upon a down payment in the amount of $2,500.00 and a note representing the balance of the purchase price in the sum of $6,159.67 was executed by plaintiff. The trial court rejected plaintiff's demand in toto and plaintiff has appealed.
It is undisputed in the record that plaintiff has paid the aforesaid note in full. The salient point presented is the proof required of plaintiff to establish the alleged verbal contract wherein defendant allegedly agreed to pay for the tractor reputedly purchased in plaintiff's name for the convenience of defendant.
Decisive of the issue before the court are the provisions of LSA-C.C. Article 2277, which provides as follows:
"Art. 2277. Proof of agreements concerning movables or money
"Art. 2277. All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances."
In rejecting plaintiff's demands our learned brother below concluded, inter alia: "The court feels and must hold that in the absence of (any) written contract or other papers, plaintiff has not carried the burden of proof of the oral contract."
In so declaring the burden of proof incumbent upon plaintiff herein, our esteemed brother below fell into error. The hereinabove quoted article clearly dispenses with the necessity of producing written proof in support of a claim relative to a movable or for payment of money where the value exceeds five hundred dollars, provided, of course, the claimant adduces evidence of the nature required in conformity with the cited codal authority. To hold, as our esteemed brother below indicated, that proof in writing is required is to disregard the plain language of the quoted article as interpreted by established jurisprudence.
It is now settled law that a plaintiff seeking judgment pursuant to the provisions of LSA-C.C. Article 2277 can serve as the "one credible witness" required. King v. Jarvis, La.App., 144 So.2d 616. The phrase "other corroborating circumstances" as used in this particular article means that the corroboration need be only general and not necessarily specific as to each element of plaintiff's case. Pino v. Bennett, La.App., 126 So.2d 460.
Applying the foregoing applicable principles to the case at bar we find that the evidence reveals plaintiff is engaged principally in the business of selling sand and gravel but from time to time buys tracts of timber and sells the logs and pulpwood situated thereon. Plaintiff does not personally engage in the business of cutting trees or hauling logs or pulpwood and owns no machinery or equipment suitable for such purposes. It is undisputed that plaintiff invariably contracts the cutting and hauling of his timber to individuals who specialize in and are equipped to perform such work.
Defendant is in the business of cutting trees and timber and hauling logs and pulpwood. Defendant owned his own equipment with which he conducted his logging and hauling operations. Included in the tools and equipment possessed by defendant were a rubber tired tractor, one or two trucks, power saws, axes, chains and other apparata suitable and necessary in the logging industry.
Although there is some dispute in the record concerning the circumstances under which defendant purchased a certain tract of timber from Carter Rownd, we believe the evidence preponderates in favor of the conclusion plaintiff purchased said timber upon the recommendation of defendant and upon the representation that defendant would cut and haul the timber for plaintiff. Irrespective of the manner in which the purchase of the Rownd timber was initiated it is clear beyond doubt a verbal agreement was entered into between plaintiff and defendant wherein defendant agreed to cut and haul the Rownd timber for plaintiff at a fixed, but undisclosed, price per thousand board feet.
After commencement of the cutting operation on the Rownd property, it was discovered defendant's rubber tired tractor was inadequate in that it lacked power and traction to get timber out of low places and that a "cat" or crawler type tractor was necessary under the circumstances encountered.
Faced with the necessity of obtaining heavier equipment, defendant contacted B.G. "Mike" Flanakin, a representative of Patterson-Redmond Equipment Company, Baton Rouge, which concern sold tractors. Flanakin would not extend credit to defendant in the purchase of a tractor but contacted plaintiff and suggested that if the equipment were purchased in plaintiff's name, defendant would realize a saving of five per cent of the purchase price which discount would amount to approximately $400.00.
In substance plaintiff testified he purchased the tractor in his (plaintiff's) name as a matter of convenience only and merely as an accommodation to defendant when it became obvious defendant's equipment was too light to cut the timber on the Rownd tract. According to plaintiff, the understanding was that defendant would make regular payments to plaintiff until the purchase price was repaid.
Defendant denies the tractor was purchased for his account in plaintiff's name as a matter of convenience and contends plaintiff purchased the tractor in plaintiff's own name with the understanding defendant would rent the tractor from plaintiff. In this regard defendant concedes the payment to plaintiff of numerous sums in the amount of $50.00, $100.00 and $200.00 over an extended period of time but maintains the payments were for rental and not upon the purchase price of the tractor.
Our careful consideration of the record reveals plaintiff's testimony is corroborated by that of Flanakin who is an absolutely disinterested witness. As previously stated, Flanakin's concern has been paid in full the purchase price of the tractor consequently said vendor can neither lose nor gain by the outcome of this litigation.
Mr. Flanakin testified he was first approached by defendant who wished to purchase a tractor. Flanakin and defendant went together to one of Gaylord's tracts to see a tractor owned by a Mr. P.H. Davis after which they went together to view and inspect several tractors in Baton Rouge. When Flanakin and defendant began discussion of financial arrangements, defendant informed Flanakin that defendant would get Mr. Ory to make the down payment because defendant was going to cut Mr. Ory's timber. Defendant then picked out the type tractor which suited his needs — a TD-6 — and Flanakin contacted Ory about the financial arrangements. Flanakin further testified he persuaded Mr. Ory to let the sale be made in plaintiff's name under which arrangement discount could be extended.
We believe the following testimony of Flanakin clearly establishes the sale was made in plaintiff's name for convenience only with the agreement and understanding defendant would repay plaintiff the cost thereof:
"Q: Now, did you ever hear Theodore Griffin tell Mr. Ory that he was going to pay him for that tractor?
"A: Well, it was agreed when we closed the deal for the tractor in Mr. Ory's office that he was going to take it in his name because of the lack of credit references and backing.
"MRS. PURSER: Just a minute, was that agreement made in the presence of Theodore Griffin?
"A: Yes. He was going to put the tractor in his name, Joe Ory's name because it would save them nearly $400.00.
* * * * * *
"Q: Is there any reason, or what was the reason for not selling this tractor to Theodore Griffin?
"A: Well, it was a lack of credit information, backing."
The evidence clearly reflects that following its purchase the tractor was modified to adapt it to defendant's use. Subsequent to said alterations, the tractor was used by defendant in the conduct of logging operations not only for plaintiff but also for other parties by whom defendant was engaged to cut and haul logs. Upon cross-examination defendant was asked if plaintiff demanded payment on the tractor when defendant used it to work for other parties, defendant replied:
"Yes, sir, but he didn't tell me that. He told me `Be paying a little along just like you were, to keep it up' and I did that just like he asked me."
Another disinterested witness, Mr. John L. Kinchen, testified that while defendant was logging for him and using the tractor in question, on one occasion when he gave defendant a check defendant told him "he wanted to pay a note to Mr. Ory."
In addition to the foregoing, the evidence clearly establishes that following purchase of the tractor, defendant had exclusive possession thereof until he abandoned it in inoperable condition.
We believe the testimony of plaintiff, fully corroborated by that of the disinterested witness, Flanakin, discharges the burden of proof incumbent upon plaintiff as required by LSA-C.C. Article 2277. Moreover, plaintiff is further corroborated in part by the testimony of Kinchen to the effect defendant advised him that defendant wanted to pay plaintiff a note on a tractor.
It follows that our learned brother below erred in concluding plaintiff had not borne the burden of proof required under the circumstances and his judgment adverse to plaintiff must be annulled and set aside.
Accordingly, it is ordered, adjudged and decreed the judgment of the trial court in favor of defendant and rejecting plaintiff's demands be and the same are hereby reversed, annulled and set aside and judgment rendered herein in favor of plaintiff, Joseph A. Ory, and against defendant, Theodore W. Griffin, in the full sum of SEVEN THOUSAND FOUR HUNDRED NINETY-NINE and 80/100 ($7,499.80) DOLLARS, together with interest thereon at the rate of five (5%) per cent from date of judicial demand, until paid, costs of these proceedings to be paid by defendant, Theodore W. Griffin.
Reversed and rendered.
ELLIS, J., recused.
Plaintiff appealed from a judgment of the Trial Court rejecting his demands for $7,499.80 and dismissing his suit at his costs.
The evidence reveals the major portion of the claim represents the balance due on an alleged verbal contract by Defendant to purchase from Plaintiff a tractor. Plaintiff, who owned timber land, engaged Defendant to do some logging operations on his property. There is evidence in the record Defendant approached a Mr. Flanakin to negotiate the purchase of a tractor. Defendant denied he had attempted to purchase the tractor individually, but related, at Mr. Ory's request, he contacted Mr. Flanakin on Mr. Ory's behalf. Mr. Flanakin, the representative of Patterson-Redmond Equipment Company from whom the tractor was purchased, testified that because of Defendant's credit rating he informed Defendant no sale could be made to him, likewise a discount could be given Mr. Ory and Flanakin contacted Plaintiff making such representations to him. Whereupon, Plaintiff purchased the tractor, making a down payment of $2,500 thereon and for the balance executed his chattel mortgage note in the sum of $6,159.67. Though there is the testimony of Mr. Flanakin that Mr. Ory was purchasing the equipment for defendant, Griffin, the sale from Patterson-Redmond Equipment Company was made to Mr. Ory. He alone executed same and Defendant was no party to the contract. Without question title therefor and ownership thereof passed to Mr. Ory. Walker v. Jim Austin Motor Company et al., La.App., 162 So.2d 135.
Plaintiff maintains that by verbal contract he sold this equipment to Defendant.
Defendant denied categorically purchasing the tractor from Plaintiff, and defends on the ground under LSA-C.C. Art. 2277 proof of a contract for the payment of money when not reduced to writing where in excess of $500 requires the evidence of one credible witness and other corroborating circumstances.
As a witness, in support of his testimony, over the objection of counsel for Defendant, Plaintiff offered two ledger sheets taken out of his books which he testified he himself kept and wherein certain entries were made as to debits and credits on this alleged contract.
Under LSA-C.C. Art. 2249, it is recited:
"Art. 2249. Domestic books and papers are not proof in favor of him who has written them; they are proofs against him: * * *."
By the clear provision of this Article such ledger sheets are not evidence and are not proof in favor of Plaintiff. From my review of the testimony there is no proof that Defendant in fact contracted with Plaintiff to purchase the tractor, neither is there proof of corroborating circumstances to show such contract was consummated. In fact, the evidence shows, though Defendant's employment with Plaintiff was terminated in January of 1959, at which time he removed his own equipment from Plaintiff's premises, leaving the tractor, which he averred he had no title to nor had he ever asserted any thereto, and this suit was not instituted until March of 1960. Such laches make questionable the verity of the claim.
Counsel for Plaintiff cites the case of Pino v. Bennett, La.App., 126 So.2d 460 as authority for the position he has offered sufficient proof warranting judgment in the case; however, in the Pino case there was no dispute whatever the contract for the services for which defendant was sued had been in fact made by him. The only question involved was that a portion of the account was to be charged to a defunct corporation of which defendant was the owner. Plaintiff in that case testified without contradiction the statements for the services rendered as same became due were mailed to the defendant, and that at no time had he ever heard of a corporation to which some portion of the account should be charged. Therefore, there was the testimony of one qualified witness, who may be the plaintiff as observed in Cormier v. Douet, 219 La. 915, 54 So.2d 177, but in addition thereto there were corroborating circumstances which were sufficient to warrant judgment.
The majority's observation the Trial Court "indicated, that proof in writing is required is to disregard the plain language of the quoted article as interpreted by established jurisprudence.", is, in my opinion, not borne out by the record. For, from a reading in full of the written reasons assigned by the Trial Court, its decision was predicated upon the resolution of whether an alleged verbal contract of sale had been made by Plaintiff to Defendant of the tractor. The Trial Court having concluded Plaintiff had failed by a preponderance of evidence to sustain the proof as required by LSA-C.C. Art. 2277, it correctly, in my opinion, observed "`* * * plaintiff has not carried the burden of proof of the oral contract.'"
I am not in accord with the majority's conclusion: "We believe the following testimony of Flanakin clearly establishes the sale was made in plaintiff's name for convenience only with the agreement and understanding defendant would repay plaintiff the cost thereof: * * *". Plaintiff himself made no such contention inasmuch as without question the sale of the tractor by Patterson-Redmond Equipment Company was to Plaintiff. It is the contention of Plaintiff that thereafter Plaintiff, by verbal sale, sold the tractor to Defendant and it is this alleged sale that is the controversial issue in this case. To me, it passes all realms of probability or ration that a business man, such as is Plaintiff, would sell to Defendant, whose credit was impaired to such an extent the vendor of the equipment refused to sell to him, on credit, a tractor on which Plaintiff made a down payment of $2,500 and executed his note for the balance due thereon secured by a chattel mortgage for the sum of $6,159.67, under a verbal contract, without retaining a chattel mortgage thereon and without providing any definite monthly payments to be made thereon, and would permit, while he himself was paying monthly to Patterson-Redmond on the note the sum of $343, Defendant to make payments to him of $50, $100 or $150 as his record indicates, and further, after discharging Defendant, who thereupon left the tractor on Plaintiff's premises, would wait a year before entering suit to collect the alleged balance due on the contract of sale.
In Cormier v. Douet, supra, 54 So.2d 177 at page 178, the Supreme Court in analyzing LSA-C.C. Art. 2277 opined:
"Since the requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge's conclusions must be accepted, unless they are manifestly erroneous. Barnes v. LeBlanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Meridian Land Mineral Corp. v. Bagents, 211 La. 627, 628, 30 So.2d 563, and Martin v. Martin, 212 La. 1092, 34 So.2d 329."
While I am not in accord with the observation "the district judge's conclusions must be accepted, unless they are manifestly erroneous."; because of the opportunity of the Trial Court to see and hear the witnesses, I do believe great weight should be attached to his conclusion predicated upon such finding. And, in my opinion, as was that of the Trial Judge, Plaintiff failed to carry the burden imposed upon him by law of proving his case by a preponderance of the evidence. Therefore, the judgment should be affirmed.
I respectfully dissent.