
    (99 South. 285)
    No. 26272.
    BURNSTEIN v. FALLO.
    (Jan. 28, 1924.)
    
      (Syllabus by-Editorial Staff.)
    
    On Motion to .Transfer to Court of Appeal.
    1. Coúrts @3^224(11) — Failure to dispute part of claim sued for held not to decrease jurisdictional amount.
    In a suit to recover $2,640, defendant could not have the case transferred to the Court of Appeal from the Supreme Court on the ground that he only denied owing plaintiff $1,140, leaving $1,500 undisputed, and that therefore the amount involved was less than $2,000, the lower limit of the jurisdiction of the Supreme Court, where he did not affirmatively admit owing plaintiff any amount whatever; it thus being incumbent on plaintiff to prove his entire demand, procedure pursuant to Act No. 157 of 1912, as amended by Act No. 300 of 1914, not having been taken.
    On the Merits.
    2. Compromise and settlement <s=»5(2) — Unaccepted offer of compromise held no defense in action against surety on lease contract.
    In a suit against a surety on a lease contract to recover rent, that defendant had made an offer of compromise constitutes no defense, where the offer was never accepted, notwithstanding that, after it had been expressly declined, plaintiff’s attorney wrote defendant that, if his proposition would be renewed, he might persuade plaintiff to agree to it; no such renewal ever having been made.
    Appeal from Civil District Court, Parish of Orleans; Percy Saint, Judge.
    Action by Joseph Burnstein against Jacob Pallo. Judgment for plaintiff, and defendant appeals and moves to transfer case to Court of Appeal.
    Motion to transfer denied, and judgment affirmed.
    Raymond Gauche, of New Orleans, for appellant.
    Bernard Titche, Jr., of New Orleans, for appellee.,
    •By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ.
   On Motion to Transfer to Court' of Appeal.

THOMPSON, J.

The defendant and appellant moves to transfer this case to the Court of Appeal, Parish of Orleans, for the reason that the amount in dispute at the time judgment was rendered in the lower court was less than $2,000, the lower limit of the jurisdiction of this court.

It is contended in support of the motion that the defendant in his answer only denied owing plaintiff- $1,140 of his demand, leaving $1,500 undisputed.

The authorities cited by appellant—Stubbs v. McGuire, 33 La. Ann. 1089; Denegre v. Moran, 35 La. Ann. 346; Central Glass Co. v. Fire Ins. Co., 130 La. 221, 57 South. 895; Borde v. Lazarus, 127 La. 122, 53 South. 465; Girardey Co. v. City of New Orleans, 20 La. Ann. 291—undoubtedly sustain the proposition that appellate jurisdiction does not attach in a case where a defendant, sued for a sum in excess of the lower limit of the jurisdiction of the appellate court, prior to judgment in the court of original jurisdiction, judicially admits owing so much of the demand as will reduce the same to a sum less than the jurisdictional limit of the appellate tribunal.

But these authorities have no pertinency to this case. The defendant only contested in his answer a portion of plaintiff’s demand, but he did not affirmatively admit owing the plaintiff any amount whatever. It is clear that the bare failure to deny owing an amount sued for cannot be construed to be a judicial admission of the claim demanded, except where procedure is taken pursuant to Act 157 of 1912, as amended by Act 300 of 1914.

It devolved on the plaintiff to make proof of his entire claim — the undenied as well as the controverted part of his demand—and he was not relieved of this burden by the silence of defendant’s answer, or the failure to deny specifically a part of the amount sued for. The plaintiff might have asked for a judgment on the face of the pleadings for the undenied part of his demand, but he could not have obtained a judgment without serving a rule to that effect on the defendant. Act 157 of 1912.

The failure to take such a proceeding did not relieve the plaintiff of making proper proof of his demand when the case went to trial on the merits. In these circumstances the full amount claimed in the petition must be regarded as the amount in dispute at the time, judgment was rendered, and that amount determines the appellate jurisdiction.

The motion to transfer the ease is denied.

On the Merits.

The defendant is sued as surety on a lease contract for $2,640, being for the last 14 months of the lease at $190 per month, less $20 paid on the rent note for August, 1922.

The only defense urged by the surety is that he made an offer of compromise and adjustment of the rent to the plaintiff, which relieved the defendant from all rent due subsequent to April 1, 1923. The compromise offered was that the defendant would settle the amount of rent up to and including March 31, 1923, at $190 per month, and for the balance the defendant would make certain alterations and improvements of the leased premises, not to exceed the sum, of $1,000, and was to lease the same at a stipulated price per month. In , other words, when the alterations were made, the defendant was to secure tenants at a certain price per month, and the expense of the alterations was to be deducted, and the old lease canceled.

It suffices to say in answer to this defense that the offer of compromise was never accepted by the plaintiff nor by any one on his behalf. The answer admits that defendant was notified on March 2, 1923, that plaintiff had declined the offer, and on receipt of such notice the defendant informed. the parties to whom he expected to lease the property after the alterations were made, and those parties had gone ahead and leased other property.

On March 28, 1923, Mr. Bernard Titche, attorney for plaintiff, wrote defendant as follows:

“If you will renew your proposition regarding the alterations of the Baronne street premises and leased to the Atlantic & Pacific Company, I think I can persuade Mr. Burnstein to make the contract.”

No renewal of the proposition was ever made and it is not claimed that any further efforts at adjustment were attempted.

It can hardly be claimed that the original unaccepted offer of compromise is legally enforceable, especially in view, of a timely declination of the offer communicated to the defendant. Nor has the subsequent promise of plaintiff’s attorney to endeavor to persuade the plaintiff to enter into such a contract any greater legal efficacy.

The defense is entirely without merit. No other judgment could have been rendered than was rendered, and the same is accordingly affirmed, at appellant’s cost.  