
    NO. 7942.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    LEO FELLMAN VS MRS. M. A. SPORL, ET AL.
    
   opinion.

By his Honor John St. PAul.

Plaintiff appeals from a judgment sustaining an xception of Ho Right or Cause of Action to a petition claiming a oommission on the sale of certain real estate;

which ha sets forth fin substance), that he was employed for a period of ninety days to sell said real estate; tti&t after the expiration of said ninety days, he nevertheless continued his efforts to sell said property by advertising and submitting the same to prospective purchasers "with the knowledge and consent of defendant"; and did thereby succeed in interesting a purchaser, with whom (however) defendant dealt directly and to whom she sold the property "without further reference to petitioner and for the purpose of avoiding the payment of a oommission on said sale".

I.

If "with the knowledge and consent of defendant", as alleged, plaintiff continued to make bona fide efforts to sell the property, and did suooeed in finding a purchaser, with whom defendant dealt and to whom she sold the property as the direct result of plaintiff's efforts, we have no doubt that plaintiff is ehtitled to his compensation both ex aequo et bono, and because in a general way the principle of tacit reoonduotion applies to a oontraot of hiring af) well ag to a lease of property. Newman vs Longshoremen’s Ass'n, 11 Orleans Appeals 38; National Automatic Alarm Co vs N. O. N. E. R. R. Co, 115 La 633. Of course the question whether or not the sale of the property was the direct result of plaintiff's efforts is one of fact, to he determined when the merits are heard.

IX.

It is urged that the alleged knowledge and oonsent of defendant can he proved only bp parol evidence; that since the matter relates to real estate, parol evidence is inadmissible; hence the plaintiff can offer no evidence to sustain his claim; wherefore his petition shows no right of action, since a right of action which cannot he proved t* and a right of action whioh doAnot exist, are one and the same (Be non apparentihus et non existentihus eadem est lex).

But parol evidence iia admissible to establish a contract to pay compensation for securing a purchaser of I* real estate. Houston vs Boagni, Mc Gloin 164. And the reason A is that the subject matter of such contract is personalty (money compensation for services); parol evidence being inadmissible as to real estate "only where the offer of the evidence is for the purpose of affecting the title to such real estate" Bernheim vs Pessou, 143 La 609 (613); Bellocq vs Gibert 36 An 565 (568).

January 24th, 1921.

As to the written instrument figuring herein, it is clearly a mere contract of employment, and not a power of attorney.

She judgment appealed from is therefore reversed, and it is now ordered that the exception of no right or cause of action he overruled and the case remanded for further trial according to law; costa of this appeal to he home hy defendant, and all other oosts to await the final determination of the ease.

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