
    MOTORS SECURITIES COMPANY, Inc., Plaintiff-Appellant, v. Jimmie SMITH and W. L. Smith, Defendants-Appellees.
    No. 8342.
    Court of Appeal of Louisiana. Second Circuit.
    June 20, 1955.
    On Rehearing Nov. 2, 1955.
    
      L. Y. Barnette, Shreveport, Arthur C. Watson, (of Watson & Williams), ¡Natchi-toches, for appellant.
    Russel E. Gahagan, Natchitoches, for appellee.
   HARDY, Judge.

This is an action on a note secured by chattel mortgage on. a 1946 Plymouth automobile in which plaintiff claims a balance of $170 with interest, attorney’s fees, etc., against the defendants, in solido. After trial there was judgment in favor of defendants rej ecting plaintiff’s demands, from which plaintiff has appealed.

The defense is based upon the contention that defendant surrendered the automobile in full settlement and satisfaction of the balance due on the note.

On or about July 11, 1953, the defendant, Jimmie Smith, purchased a 1946 Plymouth Fordor automobile from the Horace Faulk Used Car Dealers, for a total consideration of $686.90, of which amount the sum of $480 was represented by an installment note executed by both defendants, secured by a chattel mortgage on the automobile, which instrument was also executed by both defendants, and endorsed to this plaintiff as holder and owner. The note, dated July 11, 1953, provided for -twelve monthly payments in the sum of $40 each, beginning August 11, 1953. Payments were apparently regularly made on the note until the installment of April 11, 1954, on which defendants were in default to the extent of $10. After further default in its entirety as to the payment due May 11, 1954, it appears that one J. C. Car-lisle, an agent of plaintiff, on May 19, 1954, took possession of the mortgaged automobile under the authority of a so-called extension agreement which was signed by the defendant, W. L. Smith. The agreement represented that • possession of the automobile was delivered to plaintiff in consideration of an extension of time of one day for the payment of the balance due and in further consideration of an agreement not to bring suit within said period of extension.

The defendant, W. L. Smith, contends that he signed the extension agreement under the impression that he was transferring and delivering the automobile to plaintiff’s agent in full settlement of the unpaid balance of the note. This defendant’s testimony to this effect was denied by plaintiff’s agent, Carlisle. The further testimony of Smith that the document was signed late in the evening when he could not see and that it was not read to him is not controverted. From Carlisle’s testimony it is apparent that when he visited the defendant, W. L. Smith, for the purpose of attempting to work out some agreement on the past due payments,' he had in his possession a form extension agreement which he filled in by inserting the period-of one day as the extent and duration of the extension of time of payment and delay of suit. Defendant, W. L. Smith, signed the agreement, which was “witnessed” by Car-lisle, the plaintiff’s agent, and Carlisle thereupon took possession of and removed the automobile from Smith’s custody.

As we appreciate the matter, the sole issue presented is whether the delivery of the mortgaged chattel in satisfaction and settlement of the indebtedness has been established. W. L. Smith’s testimony to this effect has been counter-balanced by the sworn denial of plaintiff’s agent, and, insofar as is disclosed by the record, only these two persons were present at the time. Unless some other persuasive factors have been established it must necessarily be concluded that defendants have failed to adequately establish their defense to plaintiff’s action. However, we are convinced that there is another and a determinative point of fact.

If, as contended by plaintiff, the defendant, W. L. Smith, with full knowledge of the contents of the instrument and with a complete and clear understanding of the effect of his action, executed the extension agreement, what element of advantage persuaded him so to do? As a practical proposition we cannot conceive that a twenty-four hour delay accorded for the purpose of permitting defendant to make payment, or for the bringing of suit against defendant held out any real advantage or benefit. The record completely fails to disclose even a hope on the part of the defendant that such a delay would permit him to make payment. Nor is there even the slightest showing that a twenty-four hour delay in filing of suit was deemed desirable or beneficial to defendants. Why then did W. L. Smith sign the agreement? The only possible answer lies in the validity of his contention that he was surrendering the automobile in settlement of the debt. The effect of the unseen witness, in this instance the futile, useless and valueless one day extension inserted by plaintiff’s agent himself, over-balances the scale in favor of defendant’s contention. It is evident that the district judge so believed and so held, and under the circumstances we cannot hold that such finding was manifestly erroneous.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

GLADNEY, Judge

(dissenting).

Defendant W. L. Smith voluntarily signed the so-called extension agreement which permitted plaintiff to receive the mortgaged vehicle in pledge without prejudice of its rights to foreclose through ordinary or executory process. No attack was made upon the validity of the “extension agreement” or that the signature of Smith thereon was obtained by misrepresentation. Smith, an intelligent witness, testified only that the document was signed late in the evening when he could not see, that it was not read to him and he believed he was transferring the automobile in full settlement of the unpaid balance of the note. In my opinion the burden of proving the defense of payment has not been met and I respectfully dissent.

On Rehearing

AYRES, Judge.

A rehearing was granted herein for reconsideration of the majority opinion in view of the earnest insistence by plaintiff’s counsel of serious errors committed therein.

Plaintiffs insist that we are in error, (1) in admitting parol evidence to vary the terms of a purported written extension agreement, especially in the absence of allegations assailing the validity of the instrument; (2) in accepting the testimony of one of defendants rather than the testimony of plaintiff’s adjuster, and (3) in holding that W. L. Smith, a co-maker with Jimmie Smith on the note sued on, had the authority to surrender the automobile of Jimmie Smith, which was mortgaged as security for the payment of the note sued on and which was executed by him and Jimmie Smith as joint makers.

In the first place, the purported written extension agreement was not the instrument sued upon and is not mentioned in the pleadings. The first appearance of this instrument was during the trial. In their answer defendants alleged “that we surrendered the automobile to the plaintiff herein in settlement, payment and compromise and in satisfaction of the balance due on the note,” and that plaintiff, pursuant to their agreement, took possession of said automobile.

The defendant, W. L. Smith, testified in support of these allegations as to an agree■ment reached with plaintiff’s adjuster for settlement of the note by surrendering the •car. He had known the adjuster all the adjuster’s life and trusted that whatever instrument presented him by the adjuster was in accordance with their agreement and understanding; as, he so expressed, he felt his friend would not let him sign anything different or anything that he should not sign.

Replications and rejoinders are not permitted as part of the pleadings in this State. It was held in Galiano v. Galiano, 213 La. 332, 34 So.2d 881, that the allegations of an answer are open to any ■objection of law or fact without express pleadings, in accordance with Code of Practice Art. 329, which reads:

“When the defendant, in his answer, alleges on his part new facts, these shall be considered as denied by the plaintiff; therefore neither replication nor rejoinder shall be admitted.”

The production of the purported extension agreement in rebuttal or opposition to defendants’ allegations setting up an affirmative defense, is in the nature of a rejoinder, which, in reason, should be and is as open for any attack or objection of law or fact without express plea or allegations to that effect. Prior to the production of this instrument in court on the day of trial for its introduction in evidence, no reference to the instrument had been made, and defendants were without opportunity to formally assail the instrument in their pleadings. Defendants’ attack was made at the first opportunity and in the only manner available. Their rights should not he prejudiced. Their rights of attack upon the instrument in this instance should be upheld equally for them as such rights would have been accorded plaintiff had defendants alleged an affirmative defense based upon a written instrument. Like application should be given the law whether it pertains to plaintiff or defendant.

The second contention of error refers to the credibility accorded by this court to the testimony of the witnesses. For the reasons given in our original opinion, it was concluded that the testimony of W. L. Smith was more consistent with reason and was, moreover, corroborated by facts and circumstances therein related. We adhere to that position.

The last contention of error is leveled at the conclusion reached by the court that plaintiff was without right or cause to complain that the contract agreed upon with W. L. Smith was invalid in the absence of Jimmie Smith, one of the parties to the note, joining therein. Jimmie Smith, as the real owner of the automobile, had he been displeased with the agreement, would have had valid grounds to protest. He, however, has joined W. L. Smith in asserting this affirmative defense to plaintiff’s right to recover herein. This constitutes a ratification of and an acquiescence in the actions and agreement entered into by W. L. Smith for and on his behalf. But wherein would plaintiff have a right to assert the nullity and invalidity of the agreement upon grounds purely personal to Jimmie Smith? Pursuant to the agreement plaintiff took possession of the car. Plaintiff can not now retain the benefit of that contract and repudiate the disadvantages. It can not divide its agreement but must either accept it as a whole or reject it in toto. Galiano v. Galiano, supra. One joining in a contract can not assail its invalidity on grounds or for reasons personal to other parties thereto. For instance, a major who contracts with a minor is in no position to assail the contract on the grounds of the minority of the other party in order to escape his own obligations incurred therein. From our review and reconsideration of the record, we are convinced of the correctness of our original views and decree. Therefore, the original decree and judgment herein rendered is reinstated and made the final judgment of this court.

GLADNEY, J., dissents for the reasons assigned on the original hearing.  