Opinion
No. 27129.
April 27, 1925. Rehearing Denied May 25, 1925.
Mandamus by Mrs. Willis J. Roussel, as administratrix, to compel E.K. Skinner, as Judge of the Civil District Court, Parish of Orleans, to hear petitioner's rule, as plaintiff in a certain action against Richard Dalche. Writ granted.
William Winans Wall, of New Orleans, for relator.
Paul W. Maloney, of New Orleans, for defendant.
Plaintiff alleged that she leased to defendant certain premises in, or near, a certain amusement park, from July 12, 1923, to December 31, 1924, with privilege of renewal for two years, for and in consideration of one-half the receipts, less expenses, settlements to be made weekly; that defendant failed and refused to make settlements as agreed upon; that he was duly notified to vacate the premises, but refused to do so. She prayed that defendant be condemned to surrender the premises, and asked for the summary trial provided by law for the ejectment of defaulting tenants.
The defendant objected to a summary trial, on the ground that this was no lease, and hence the relations of landlord and tenant did not exist between plaintiff and himself; that he had a counterclaim against plaintiff which he wished to urge by way of reconventional demand; and that plaintiff should be relegated to an ordinary action.
The trial judge sustained defendant's position, and refused to hear the case summarily, wherefore relatrix applied to this court for a mandamus to compel him to do so.
I.
In Cepro v. Matulich, 152 La. 1072, 95 So. 226, we held that we would not interfere with the fixing of cases in a trial court, unless the circumstances show that a party will suffer some substantial injury by the improper fixing of (or refusal to fix) a case. But, where a landlord is seeking to eject a defaulting tenant, he clearly suffers a substantial injury when he is refused the right to the summary trial provided by law in such case.
We also held in that same case that a tenant cannot defeat the right of his landlord to proceed summarily with the trial of his suit to eject by engrafting or attempting to engraft thereon, by way of reconvention or otherwise, anything foreign to the one issue, whether the landlord be entitled to the possession of the premises, and to that we adhere.
II.
In Logan v. State Gravel Co., ante, p. 105, 103 So. 526, No. 26429 of our docket, decided March 2, 1925, we reviewed the authorities as to the nature of the consideration necessary to support a contract of lease, and our conclusion was (in effect) that any consideration sufficed which was or could be fixed in money, commodities, or labor, and which was not dependent on the mere whim of the landlord or tenant. And we again adopted the definition of Bouvier, approved in King v. Harper, 33 La. Ann. 496, that —
"Rent [by whatever name called] is a certain profit in money, provisions, chattels or labor, issuing out of lands and tenements in retribution for the use."
In Hardy v. Lemons, 36 La. Ann. 146, wherein a racehorse was leased in consideration of one-half of her net earnings, and wherein the contention was made that "there could be no lease without a fixed price," this court said:
"The feature of the contract which provided, as aconsideration, the division of the mare's net earnings, instead of a fixed price, did not invalidate the contract as a lease. * * * The contract * * * embodies all the elements of a lawful contract of lease. * * *" (Italics ours.)
Which case is on all fours with the case before us.
Decree.
It is therefore ordered that the respondent judge be directed to try plaintiff's rule for possession summarily, in accordance with the provisions of Act 49 of 1918; and that defendant, Dalche, pay the costs of this application.