Opinion
No. 3085.
May 14, 1970. Rehearing Denied June 16, 1970.
APPEAL FROM 33RD JUDICIAL DISTRICT COURT, PARISH OF ALLEN, MINOS D. MILLER, JR., J.
Alfred Ray Ryder, Oberlin, and John P. Navarre, Oakdale, for defendants-appellants.
Mitchel M. Evans, DeRidder, for plaintiff-appellee.
Before TATE, FRUGÉ and SAVOY JJ.
This suit was filed by plaintiff against defendant seeking a money judgment in the sum of $5,136.85 together with interest from judicial demand, and for all costs.
For a cause of action, plaintiff alleges that it obtained a judgment against James H. Welch for the sum stated hereinabove; that on March 12, 1968, Welch and defendant herein entered into an act of assignment wherein defendant assumed all obligations of Welch, including the judgment which plaintiff had obtained against Welch; and, accordingly, defendant is indebted to plaintiff for the full amount of the judgment.
Defendant filed an answer alleging its agent was not authorized to sign the act of assignment, and, alternatively, that defendant did not obligate itself to pay the indebtedness of Welch. By separate petition defendant, Allen State Bank, made Welch a third party defendant, praying that it recover against Welch any judgment which might be rendered against it.
After a trial in the district court, the district judge rendered judgment against defendant as prayed for and granted defendant, Allen State Bank, judgment against Welch on its third party demand. Defendant, Allen State Bank, appeals.
The pertinent portion of the act of assignment dated March 12, 1968, states:
"Said parties herein stating that James H. Welch transfers all rights, claims or cause of action that he possesses in the business and property now or formerly owned by George I. Gilbert known as 'Cummings, the Jeweler', and in return his indebtedness as previously stated owed to Allen State Bank is cancelled and erased."
Counsel for plaintiff alleges in his petition and in oral argument that he depends solely on this portion of the agreement for recovery against defendant, and does not rely on the Bulk Sales Act.
We find nothing in the agreement wherein Allen State Bank obligated itself to assume any obligations of Welch. Welch transferred all assets he owned to Allen State Bank in consideration of their relieving him of any indebtedness they had against him, namely a claim for $27,389.94.
For the reasons assigned the judgment of the district court is reversed and set aside, and judgment is hereby rendered in favor of Allen State Bank and against plaintiff, dismissing its suit.
It is further ordered that judgment in favor of Allen State Bank and against James H. Welch is hereby reversed and set aside and judgment is hereby rendered in favor of James H. Welch and against Allen State Bank, dismissing its third party demand.
Plaintiff to pay all costs except those involving the third party demand. As to the third party demand, the costs are assessed against Allen State Bank.
Reversed and rendered.
On Application for Rehearing.
En Banc. Rehearing denied.
MILLER, J., recused.