
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    GERVAIS J. KING, (Globe Indemnity Company, Subgrogee.) versus CHARLES L. TOMB, Testimony Executor of Samuel M. Dayton, deceased.
    No. 6772.
   O P I N I O N

Plaintiff ba daíandant for -tho ana of f BOO.00 loa un mortgage nóte?, with 8jí por annum lataraat aa $300. OQ fren duly Z, 1914; Oft iLuam inter»»* om iJPD. 00 fraa September 8, 1914; and tjí lataraat on tha ana of $200.00 Trees Wivnsahai g 1914, until paid; together with 6% oa Mid amount as attornaja* too», and with raoognition of plaintiff a apodal aortgaga to aoeoro aald aaouat on tha proparty daaorlhad in tho petition,and xaaordad la tho Clark's «filos of tha Parish of Plaquemines an April IB, 1914, In Uortgaga Offloa Book Ho. 6, Pollo 4£9; and that Mid proparty ahould ba sold to pay said amount, and for ooats.

Ha dselaras that ha «as tha last holdsr of tha ahora das* oribad notaa nada by tho dsfandant, and that said notas wars giran to him as rsprssantlng tha unpaid purehasa prloa of a esrtaln lot of morablaa and moring piotura show sltuatad at tha oomar of Hagadns and Savanth Straats In this oity, known as tho "SSsjestio Theatre"; that'dsfandant mortgagod and specially hypothecated to your petitioner, or any futuro holdar of said notaa, tha prop-arty daaorlbsd In tha patltlon and agreed, In tha arant that tha hotaa wera not paid punctually at maturity, tha proparty ooald ha Sold and salzad undsr jttdlelal procesa Issusd by a competout court. Ha aliagas that said mortgage was proparly reoordad In \ha, Clark 'a Office of tha Parish of Plaquemines, and demand for payment - being mads was refused, and he prays for judgment aa hereinbefore sat forth In hia petition.

There was. first filed a plea of want of jurisdiction, a peremptory exception, which was overruled - properly so, by the Judge a- £uo, and subsequently, on tha 8th of March, 1916, defendant filed substantially the following answer: He denies that plaintiff is the owner in good faith and for a valuable contid* eratloa *f th* n*t*» is question; edjaits th* *x*outIon of th* notes **t eat la plaintiff's petition, hut A*nl*a *njr liability to plaintiff therefor; adaits that th* aet*a wera given aa part of th* purehaa* prla* of a certain Moving plotur* buslnesa eon* Anotad la th* Ka]*atlo theatre la thla oity, hut 4*nl*a any 11a* tlllty thereunder. B* allege* tha* oa or about th* BOth of March, 1914, h* bought froa plaintiff th* pi«tur* ahow looatad aa plain* tiff d*aorlh*d, and callad th* "Kajcatio theatre"; that piala* tiff aotlvaly *ollelt*4 and pr*aa*d defendant to purehaa* aald theatre, and aft*r frequent negotiation*, relying on th* represent at ion* and warranties rede by plaintiff, he did purchase th* aald moving plotur* bualneaa for the sun of #1800.00, on* thous- and dollars of whloh he paid In eaah, and the balance with the notea aued on. Be avara, aaongat other things, that th* plaintiff represented that th* bualneaa was a luorativ* on* and that th* net profits averaged over #80.00 per week; that plaintiff further alleged thet on account of the lllneaa of his wife ha was oom-pelled to take her to dew York to have a serious operation performed upon her, whloh oould not be don* In dew Orlaana, and. In order to Induce this defendant to purchase his moving picture business, deliberately misrepresented th* facts In regard to tha receipts taken In by said theatre, and that he (plaintiff) falsely and fraudulently, and with the deliberate Intention to deceive and mislead defendant and to lnduco him to purchase the said moving picture ahow business, represented the profits from said moving picture show axoeeded $50.00 per week, net, and that it was on the faith ol the statements and warranties made by plaintiff as to the receipts of sa'.a theatre, and the net proceeds made thereupon, that defendant was Induced to purchase aald moving picture business and to execute th* notes herein sued On.

Answering further, In reconvention, he says that plaintiff' , felled and neglected to comply with the terms of th* contract sale, whloh, amongst other things, provided that th* leas* between the lessor and defendant of tha Hajastlo Sheatre was to hava baen transferred, with tha consent of tha landlord, to him, which was never dona; further, that plaintiff had agreed and solemnly promteed not to antar or engage in tha moving plctura hualnaae within a distance of one-half ml3e of the Kajeotio Ihaataa for a period of five yaara from tha data of aald contract, and furthermore bowud himself in the sum of $1000.00 liquidated damages should he violate his ow-taatlon not to enter Into the moving plctura business within the area and tha time described. Than, assuming the position of plaintiff in reoon-vontlon, defendant avara that plaintiff woe justly and truly Indebted unto him In the full sum of $1000.00, and for the rescission of sala entered Into by and between plaintiff and defendant on April 2, 1914, and for the cancellation of the notes given on the date of said contract, aggregating $800.00; claiming further, in re cor.'; on ti on. thnt he was entitled to tha rescission of ss.id eontrnct of salo, return cf tha roneys paid, end cancellation of '• '•’o notes herein sued on, by reason of the breach of contract through the failure of defendant in recon-vention to turn over the unextiirea lease of the liiajestlc Hall as provided; and again, in Article 20 of the roconventionnl demand, he. allegoa that plaintiff in reconvention avers that as a matter of fact the said moving pioture business was not a paying business; that instead of paying a net profit of $50.00 per week, as alleged and warranted by defendant in reconvention, that said moving picture business showed a loss for each and every weak it was operated by plaintiff in raconventlon; that the business had not been profitable to plaintiff, cn represented by him; that said repiesentation induced plaintiff in reeonvention to purchase said business, and had it not bean for tha said false representation nade by plaintiff he would not have entered into the oontrect of purchase for said business.

i’inOly, ha prays for lodgment in re convention, cancellation of his notes, return oí the $1000.00, and all costs, and for general re] ief.

Much testigoay v.-is token, ana a era at ¿oal ol time «as consumed by the- court je quo in cue trial of the ouse, and doubtless the judge beir.ro •■.’ion It was triad, the lato Judge- T. 0. .'.'.bilis, one of the most careful and painstaking memcors oí the bench for many meny years prior to his- death, in the city of Hen Orleans, carefully weighed the testimony in olio oa-30 and considered it, doubtless, from every angle, admitting much testimony going to f’o offset, ev the judge ruled, which, in our opinion, has encumbered this record beyond mensure, but which he - in order, in his opinion, to do eostlulo justicecetwecn the parties - did admit, and which wo, too, h;-ve carefully considered in ee'uncetion with this, ci U3e, and we love core to lie absolute conclusion that, insofar us misrepresentation iu concerned, the contract entered into la bay snd to sell tie picture .-hew in question, made on the 2nd day of April, IF] 4, substantially gave to the defendant, in detail, the riTht of occupancy and all the fictnres in said theatre, ncming them, including the electric wiring, and every little detail tha'-’ it was possible to enumerate was there-stated, and beyond the fact- that- there was eteted that there should be a transfer to the purchaser of the lease, with the consent of the landlord, which was not done, the tenant, however, remaining without objection until he failed to pay the rent - thus doubtless with the consent of the loudlord - and alleging that plaintiff was not to go for five years ir.tc- the Game business within e distance or radius of one-half mile of the hejesti* Iheatre, — beyond that, the contract in no wise, in our opinion, had at all affected the sale.

The testimony ir reference to the illness cf the wife as one of the main causes, if not the main reason, fer the sale of this property, as stated by the defendant, whether .true or false, was outside of and beyond the contract; anc if it was to have been included in it the able counsel of the purchaser, who was present at many of the conversations between plaintiff and defendant at the time of the salo, would douhtloaa have inserted it. He did not do bo; therefore we regard the oral evidence made at the time of the sale, as heretofore recited, or any other oral testimony outside of the written contract between the parties, when fresh in the minds of all, as beyond the rights of the defendant; and whatever may have been said Should have been written, and there could have teen no dispute and would have been none.

Article 1819 R.C.C. provides:

"Facts Vitiating Consent. Consent being the concur-re nee of intentionin two or more persons, with regard tc a mettcr anderstood by all, reciprocally cornmii-catcd, and resulting in each party from a free and de-libérete exercise of the will, it follows that there is no consent, not only where the intent has not been mutually comriunicatod or implied, a.-: is provided in the preceding paragraph, hut also where it has been produced by -
Error;
Fraud;
Violence;
Threats."

Article 1824 reads:

"The.Reality of the Cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there he no such cause where one was supposed to exist, or if it he falsely represented, there can he no valid consent."

In the notes under the samp article, we find:

"She plea of error of law and fraud and want of consideration will not avail to aefeat the enforcement of a written end honorable obligation unless clearly ahown.” (Citing numerous authorities).

Again:

"An allegation that one signed a contract without reading will net avail." (Authorities).

Article 1825 provides:

"Error Must Relate to Principal Cause, or Motive. She error in the cause of a contract io have the effeot of invalidating it, must be on the principal cause, when there are several; this principal cause 1b called the motive, and means that const dorar, ion without whioh the oontrect would not have been made." (And authorities there cited).

1919.

The oontract Is unambiguous. She defendant was la the cigar trasloase ea a manufacturer, in tha City of law Orleans. Ha concluded - evidently hatlaving that tha ploture show bnalnaas would raj hatter, and possibly for othar raasona known to Massif, - to buy th* plotura show In question, under a written contract heretofore alluded to, and ha did buy. He paid #1000.00 in cash, when the contrast was signed by both parties; he gave the notes without amour; and after failing In a business which ha knew nothing about, and which ha freely undertook to engage In, he fell a viotim to his own folly. His Honor, the late judge of whom we have already spoken, and whom we all highly regarded and respected, after many days devotedly and wholly given to the trial of this cause, hearing the testimony and seeing the witnesses, became convinced that there was nothing In the re£onventlonal demand worthy of attention, dismissed it,end gave judgment for what was claimed by plaintiff In this petition. And we absolutely oononr In his opinion.

Hew Orleans, _  