
    No. 8008.
    
    Mrs. Minnie Sharp, Wife of James A. Cardinas- -versus- Cornelius R. Buchanan, Sr.
    - Court of Appeal - Parish of Orleans.
    -Dlnkclsplel. J.
   binkelsplel, J,

This quit is based on two rent notes each for the sum of ¡$150.00. for rent of premises No. 843 St. Charles Street, for the months of November and December 1919; said notes were exeou - ted by plaintiff, and under an act of lease filed in this cause together with the notes in question, it was agreed that the lessee after paying the notes should collect same from defendant who had rented the premises in question, and had bought the furniture and other things in the premises for the purposes stated in the act of sale, also filed in this proceeding.

The petition prayed for the amount of said notes and for a writ of provisional seizure in accordance with law.

The writ was duly issued and served, and part of tho property in the premises mentioned was seized by the Sheriff of the Parish of Orleans.

The defendant first prayed for oyer, and that being furnished under order of Court, subsequently filed an exception of no couse or right of aotion, which in due course was overrruled. Subsequently defendant filed his answer to the merits, admitting the execution of the notes for thea amount stated by plaintiff, and the assumption by defendant of payment, who acknowledged ps^snni posesslon of the premises without payment , for reasons, that defendant had assumed these notes ; beoause the act of A¿ril 11th. 1919, was null and void, for fraud and misrepresentation practiced upon him prior to and at the time of signing of said act, as a result of which he was laboring under error when ho executed said aot, and from the brief of defendant we quote special defences enumerated in the asmwer, as follows —*•/ 1- Plaintiff knowing defendant wanted to lease the place of not less than thirty rooms, falsely represented to defendant that the owner of the premises, 843 St. Charles Street, was about to construct a buildinjj in the rear of the lot which would contain a number of rooms, and which, added to those already there, would made the required number.

3-Plaintiff falsely represented that eight lagge and expensive mirrors in the house were her property, and would he, and were included in the sale of the property, the furniture, to the defendant.

3- Plaintiff falsely represented to defendant, that she had a right to suh-lease or transfer the property, the lease, of the entire premises to defendant.

4- Plaintiff falsely represented that she had an agreement «Utah with her land lord to lease the addition in the rear,when completed, as long as she might desire to do so, at $100.00. a month, and that she would likewise transfer this lease to defendant.

5- Plaintiff falsely represented to defendant that the lawn on the side of the house was covered by her lease, and this lawn would likewise go in the transfer of lease to defendant»

6- Plaintiff fraudulently concealed from defendant the fact that her lease contained a olause by which her land lord had retained the right to ooncel the lease upla thirty days notioe.

We are convinced that the reoonventional demand is not related to the ¡palm demand, the main demand is a suit for rent and the reoonventional demand is based on a prayer for annulment of an act of sale with reference to furniture and effects on acoount of fraud.

There is in this record, offered in evidence, a suit pending before Division, 'O’, involving the same subject matter as is involved in the reoonventional demand herein. Thel law, in our opinion,- is aumhlgaaonaxiuuuBglgaBSa unambiguous, and we refer to the authorities, Phelps vs. Stone. 3 L. 617. Pi. vs. Tidal. 5 L. 303.

A demand cannot be considered as reoonventional when both parties reside within the jurisdiction of the Court, and the two claims are disconnected, and when no judgment in reoonven-tion is prayed for. Weill vs. Bernard. 4 C. A. 63.

Where the litigants reside in the same Parish, reoOnventlon cannot be pleaded, unless ghe incidental demand is neoessarily connected with the main one. Gardner Cooperage Co, vs. Gilbert Hattier Co. 9 C. A. 18.

Where a defendant, muloted for ooate In a suit against him by a contiguous owner for Injury to the latters party wall and building, in whioh suit defendant’s building contractors were oalled in and discharged from warranty, said defendant, when subsequently sued by these contractors for work dons and completed, cannot set up in reconvertios the costs by him incurred in said former suit. Carey vs. Pratt. 1. C. A. 198. D'Armond vs. Pullen. 13. L. 138. Harris vs. Railroad Co. 16. L. 140.

For the reasons assigned, it is ordered adjudged and decreed that the judgment of the lower Court, dismissing as of non suit plaintiff olaim for judgment for rant for 5300., together with 8$ An and 10# Attorneys fees with lessors lien and prlvelege on property seized be reversed; and, it 1s now, ordered that plaintiff have judgment for the full amount of her olaim against defendant, to-wit; 5300. with 8$ interest from judioial demand, and 10# Attorneys fees, with lessors lien and prlvelege on property seized, and it is further ordered, that the judgment of non-suit on the reoonventional demand be, and the same la hereby affirmed. The oosts to be borne equally by plaintiff and defendant.

-Judgment affirmed in part and reversed in part-  