
    No. 1925
    Second Circuit
    C. D. KEEN, ET AL. v. A. DELATTE
    (October 21, 1925, Opinion and Decree)
    
      (Syllabus by the Editor)
    
    1. Louisiana Digest—Judgment—Par. 51.
    Where plaintiff sued under an alleged contract which was not proven and the evidence showed a possible right to a judgment under a quantum meruit . the case will be propery non-suited.
    Appeal from First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit for an amount claimed of defendant for having stored building material on plaintiff’s lot.
    
      There was judgment dismissing the suit, but reserving plaintiff’s rights.
    Plaintiff appealed.
    Judgment affirmed.
    John B. Files, of Shreveport, attorney for plaintiffs, appellants.
    Moore & Johnson, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit for $400.00 claimed of defendant for having stored building material on plaintiffs’ lot.

The district judge construed the petition as being a suit on a contract, and correctly under the evidence dismissed the suit, reserving to plaintiffs their right to sue on a quantum meruit.

The evidence in the case used as a guide to properly construe plaintiffs’ petition warrants the court in treating the case as a suit to recover on a contract, for no effort was made by plaintiffs to show how much of their lot was used by defendant or the rental value of the portion used.

Plaintiff W. C. Woolf testified, page 5:

“He wanted to use the back end of the property for storing material on.”

There is no evidence as to what portion of the lot was used by defendant or as to the rental value of the portion used.

Plaintiffs contend that defendant, by using a portion of their lot, became responsible for the rental value of the entire lot. This could only result from a contract, express or implied.

As a trespasser, defendant would only be responsible to plaintiffs for the rental value-of the portion of the property actually used by him, and for all damages caused to plaintiffs by his wrongful acts.

But there is no evidence on the part of plaintiffs as to the rental value of the portion of the lot used .by defendant.

Under the evidence the most that plaintiffs could reasonably ask for is a non-suit, and in effect this was granted them under the judgment of the District Court reserving to them the right to file a suit upon a quantum meruit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed.  