
    No. 1643.
    Joseph Lallande v. Immer U. Ball.
    Instead of moving the court to strike out any portion of a defendant’s answer, the more regular course is, to object to the admission of any evidence to sustain it.
    The prescription of one year does not apply to actions for damages ex contractu.
    
    The law does not require that a reconventional demand for damages shall be liquidated,
    
      APPEAL from the District Court, Parish of West Feliciana, Cooley, J.
    
      A. Provosty, for plaintiff and appellee.
    
      Collins é Leake, for defendant and appellant.
   InsiiEY, J.

The plaintiff, a resident of New Orleans, claims from the defendant, a resident of West Feliciana, the amount of a promissory note drawn by the latter, and representing apart of the price of a tract of land.

The answer is a general denial, and the defendant claims in reconvention as damages, the sum of ten thousand dollars, incurred by him in consequence of fradulent misrepresentations of the plaintiff, his real vendor of the said tract of land, who led him to believe that it was partly composed of swamp-lands, and that it was bounded by the river Mississippi, and which was his inducement for the purchase of it.

That supposing the swamp-land in the vicinity of the tract purchased by him to form a part of it, which was not the case, he erected a valuable saw-mill, but it is valueless for want of cypress timber; and that he is compelled to haul his timber four miles, and being unable to erect cabins, etc., on the place to house his laborers, he lost a crop of one hundred and twenty bales of cotton, for all which the damages are claimed.

The plaintiff moved the court to strike out the defendant’s claim for damages, on the following grounds:

1.That the action is barred by the prescription of one year.

2.That the damages claimed are not liquidated.

3.That the damages claimed are too consequential and remote.

4.That the plaintiff was not put in mora.

Which motion the Court sustained for all that part of the answer which relates to the profits the defendant would have made by the labor of the freedmen, and overruled it as regards the damages which the defendant represents that he suffered by the erection of the saw-mill, etc., to saw lumber from the swamp tract which he was informed was included in his purchase, but which in fact was not; to which ruling both parties excepted, and took bills of exception.

The striking out of a plea in reconvention, is equivalent to excluding testimony to sustain it, which latter this Court has deemed the better practice. Jonau v. Ferrand, 3 Rob. 364.

The court below properly disregarded the plea of prescription, which does not apply to damages ex contractu. See 4 N. S. 335; 9 Rob. 396; 11 An. 554. And, also the plea that the damages were not liquidated, which is unnecessary in reconventional demands. 10 An. 98; 15 An. 70; 16 An. 250. And, also the exception that the plaintiff was not put in mora, which the defendant attempted to prove. 2 Rob. 498; 10 Rob. 524, And, also the defendant’s application for a jury, without making oath as required by the 24th section of the act of 20th March, 1839, amendatory of the article 495 C. P.

It is therefore, for the reasons above given, ordered, adjudged and decreed that the judgment of (¡he District Court be annulled, avoided and reversed; and it is further. ordered that the case be remanded to the District Court for further proceedings according to law, and in accordance with the rulings of this decision; and it is further ordered, that the plaint}# and appellee pay the costs qf appeal)

This Court, in its decree sought to be opened, expressed its opinion clearly upon all the points upon which it was necessary to instruct the Judge of the lower court.

As to the consequential damages, claimed by the plaintiff, and stricken from his petition by the Judge a quo, our opinion is not left doubtful as to the correctness of his ruling in that, or by an equivalent mode, and our concurrence with it.

Rehearing refused.  