
    NO. 7986.
    JEAN ODOBERTO VS U. J. VIRGIN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOJJ,

St. Paul, Juaga.

On September 12th, 1921 plaintiff borrowed on mortgage from Hiss Katie Rehm, the aister-in-law of defendant, the sum of $750 for one pear at 7;j interest. Por six years thereafter she nade no demand whatever either for the capital or for the intorost; hut just as the note was about to prescribe she suddenly foreclosed upon it, and plaintiff was obliged to pay her in full the principal and all accrued interest, together with attorney's fees and costs, the whole amounting to $1183.56.

Plaintiff here alleges fin substance) that up to the moment of said foreclosure, he believed that said note and mortgage had been extinguished in accordance with an agreement entered into between himself and this defendant, by whioh The latter undertook to care for said note in oapital and interest out of the wages whioh plaintiff was then earning in defendant's employ; but that defendant although retaining said wages, had failed to apply -.v part thereof whatever to the reduction of said note. Wherefore plaintiff asks judgment for the amount of wages earned, and also for the attorneys fees and costs which he had to pay, said fees and costs amounting to $118.55.

X

Defendant pleads the prescription of three years «>1 if plaintiff were suing simply on an opon account. But such is not the casa hora; on the contrary this action is essentially one for damages and founded on a Breach of contract; to-v,'it, that defendant accepted from plaintiff u mandate to pay over certain monies f(v- account of plaintiff, hut failed to do so, whereby plaintiff suffered a loss which is measured in part hy the amount of the account.

But there is yet another reason why prescription cannot avail in this case, and it is this; that whenever one party has hy his course of conduot lulled another into the belief that his rights will not he jeopardized hy any inaction on his part, the former is thereafter estopped from taking any advantage from such inaction.

Uc. Djtffy vs \7alk6r, 125 la 152; Burdeau vs Dorsey, 7 Orleans App 554, ECO. And since in this case’ defendant's agreement to pay the '.vagos over to the holder of the note lulled plaintiff into the belief that his wages were in effect hoing paid regularly, and thus induced him to refrain from claiming them, it follows that defendant cannot not take advantage of his own failure in order to defeat plaintiff's claim; for prescription did not run as long as WH plaintiff usa being thus misled.

IX.

Coming now to the main feature of this oase we believe that all the circumstances thereof show that defendant did make some agreement to apply plaintiff's wages toward the extinguishment of his note. I, The very faot that defendant's sister-in-law did not ask even for her interest, and that plaintiff never did even as much as ask for his wages, is alone very signifieiant of some understanding of that sort. 2, plaintiff testifies that before the year was up he went to defendant saying, "lou owe me some money; I want to pay Miss Eatie the interest on the mortgage";, to which defendant replied, "John, dont get uneasy; I'll fix everything up. Dont make any had blood; I’ll fix her up." And defendant admits, "I said that I ■ ould see that she got her money."

III.

Por the rest Vie must hold strictly to uhe rule of law requiring that plaintiff make his case certain.

if Defendant admits that plaintiff attended to his garden for several years before the storm of September 1915; and it is certain that plaintiff worked there in September 1912, when the mortgage was given. But the ### evidence as to whether plaintiff worked there after 1915 too is entirely conflicting to stand as the basis of a judgment in favor of plaintiff, especially in the iaoa of an adverse finding by the trial judge.

Z\ Defendant admits that the rate of pay was $16 pei* month for the summer months (March to September) and $0 per month for the five winter months (October to February), making $152 per year.

3. Defendant admits that he owes plaintiff $15 for cutting the grass in June 1916; and does not seriously deny that he also owes $52 for 26 loads of earth at $2 per load delivered in 1916.

4.* Defendant claims that in April 1913 he settled in full with plaintiff to May 1st 1913; and supports this

by a check given to defendant, which reads that way. v7e accept this as a fact; for the genuineness of the statement on the check is not denied, and if genuino it is more reliebale than the memory of witnesses.

I f.

Accordingly we find that plaintiff earned wages amounting to $451, asafollows;

1. May 1913 to Sapteribor 1913...$ 80.

2. October 1913 to .September 1914. 152.

3. October 1914 to September 1915. 152.

4. June 1910, tlfi plus $E2 . 67.

,1'e therefore think that plaintiff should recover these v451. So further think that he i" . > cuftltf to get, baok the attorneys fees and costs v/hioh he paid, amounting to .¡jll8«55« For we ara satisfied that they would not have teen inourred had defendant kept his agreement; hut at any rate both the interest and attorneys fees would have been very muoh less, and any small difference will be more than compensated by the use which defendant had of plaintiffs money without interest for several years.

April 4th, 1921.

It is therefore ordered that the judgment appealed from be amended by increasing the amount allowed plaintiff to Rive hundred and Sixty-nine Dollars and fifty-five cents (■¿5569.55) with legal interest from judicial demand until paid; and as thus amended, said judgment is affirmed at defendant's cost in both oourts.

Sew Orleans la,  