
    ROZELL McWILLIAMS versus MRS. JOSEPHINE DAWES
    NO. 8,290
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE!
    June 30th, 1922.
    
      
    
   BT; WIDDIAM A. BEIL, JUDGE:

This is a suit to recover brokerage fees in the sum of One Hundred and Eighty Dollars ($180.00) and the additional 25$ of said amount as attorney's fees, all of which is claimed under a certain contract entered into between plaintiff and defendant on April 00, 1918, whereby plaintiff was given the exclusive employment as agent, to sell certain real estate in this city, belonging to defendant.

It is alleged in the petition that the said written contract of employment stipulated that plaintiff should be continuously employed as defendant's agent, and should remain such until defendant should oancel plaintiff's employment by written revocation.

It is further alleged that the contract stipulated also that in case the property was sold during the existence of the contract, that no matter by whom the said property was sold, the commission of 5$ should be due to plaintiff together with 26$ additional as attorney's fees, if suit was brought to enforce the contract.

It is then alleged that plaintiff advertised the property for sale, showed it to numerous prospective buyers, and did all in hi3 power to effect a sale of the property, all at his own expense, and that while the said contract of employment was in force, the property of petitioner was sold by her for the sum of Six Thousand Dollars ($6,000.00) on August 26, 1919, and that petitioner never having revoked the contract made with plaintiff, there beoa<|)kCdue to plaintiff under the stipulations aforementioned, a commission of 3$ on the said $6,000.00, or the sum of One Hundred and Eighty Dollars (§180.00), together with an additional 26$ of said amount, attorney's fees, which petitioner would have to pay for the employment of counsel in bringing this suit.

The petition eonoludes with the averment that amicable demand was made in vain upon defendant for the payment of the oonmission as herein sued upon. The prayer is for judgment in the amounts above stated with legal interest on the whole amount claimed from August 26, 1919 until paid. The contract in Question was annexed to and made part of the petition

Defendant admits the contract ana all of the recitals therein set forth, and that plaintiff was employed by her under said contraot, but denied that the contract was never revoked or modified, and also denies that it remained in full force and effect on August 26th, 1919, without modification or revocation.

It is further admitted that the property was sold on the date just mentioned for the price of §6,000.00. ■Further answering, defendant alleges that on or about August 10th, 1918, while accompanied by a friend, she called at plaintiff's office and finding him absent therefrom, told his representative that she desired to revoke or modify the contract existing between her and the plaintiff, in that she no longer would oonsent to plaintiff's having the exclusive right to sell her property, but that if he procured a purchaser for her, or made a sale of it, she would pay a commission to him as she would to anyone else who might effect a sale, and that this instruction given to plaintiff's clerk was accepted by the clerk, who said that the matter would be fixed, and that report of defendant's wishes would accordingly be made by her to plaintiff.

Further answering, defendant says that acting under the belief that she had succeeded in revoking or modifying the oontraot, she placed the property in the hands of another agent, who subsequently sold it, and to whom she paid the brokerage. It is also alleged by defendant that not hearing, from plaintiff until after the sale by the second agent had been consummated, nearly one and a half years since the signing of the oontract herein sued upon, and fully one year after its revocation, that she had every.reason to believe that plaintiff had acquiesced in the modification or revocation of the contract. The answer concludes with the averment that plaintiff did not effect the sale of her property, nor did he procure a purchaser.

At the trial of this suit in the lower court, testimony was admitted over plaintiff’s objection to the effect in substance of what was alleged in defendant's answer, tlst is, to the verbal revocation of the written contract. The objection as made being overruled, plaintiff reserved a bill of exception, and the matter being before this court, we are of the opinion that the verbal evidence offered by defendant in an attempt to vary or contradict the written contract herein sued upon, was erroneously admitted.

The rule of evidence which properly excludes the testimony admitted in this dase is found in the Revised Civil Code, Art, 2276:

"neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them,or since."

This article has been upheld by a long line of decisions^ and is further noted under the general rule of evidence in 22 Corpus Juris Verbo:

VERBAL EVIDHilOE.
Par. 1459.
Contracts: (1) General Rule: "The most usual application of the parol evidence rule is with respect to contracts, a3 to which it is established that in the absence of fraud or mistake parol or intrinsic evidence is not admissible to vary, add to, modify, or contradict the terms or provisions of the written instrument by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements it to writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of their engagement, all previous negotiations and agreements with reference to the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing.
The rule, however, goes evqn farther than this, and it has been established that where the instrument is free from ambiguity and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing." La. - McGuigin v. Boyle, 1 La. A. (Orleans) 164. La. - Weinberger v. Merchants' Ins. Co., 41 La. Ann. 31, 5 3 738. La. - Robinson v. Britton, 137 La. 863, 69 S. 282; Block's Succ., 137 La. 303, 68 S 618; Egan v. Hotel Grunewald Co., 134 La. 740, 64 S. 698; Hafner Mfg. Co. v. Lieber Lumber etc. Co., 127 La., 348, 53 S 646; Wells v. Blackman, 181 La. 394, 46 S 437; Murphy v. Hussey, 117 La. 390, 41 S 693; Hebert v. Dupaty, 43 La. Ann. 343, 7 S 580; Porter v. Sandidge, 32 La. Ann. 449; McWilliams v. Reith, 149 La. 298; Ware v. Allen, 128 U.S. 595. (2) Wharton, Evidence 1014.

In the case of Freeman v. Diboll, 11 Orl. App. 199, under conditions quite similar to those now under consideration, this court decided "that the provisions of the contract being clear and unambiguous, parol testimony varying its terms was properly rejeotéd." In this same case the court ruled that additional evidence offered for the purpose of establishing by whose effort the sale of the property had been consummated, was also properly rejected, for the reason that the agency of the plaintiff or real estate broker being shown to be exclusive under the terms of the contract, any other evidence as to other parties having consummated the sale was immaterial. The court ruled in the ease just cited as follows:

"Where the oontraot of a real estate broker confers on him the exclusive agency to sell the property, and negatives the right of the owner to sell or negotiate for its sale, the broker is. entitled to his commission if, during the term of the contraot, a sale is effected by the owner or by another broker, on the • latter's behalf."

A similar ruling was made by this court in the case of Kostmeyer v, Landry, 12 Orl. App. p. 385, and again in the more recent case of Harvey v. Hirsh (unreported) No. 7518 of the docket of this court.

In the last case Just cited, the contraot sued upon was in part as follows:

"I will notify my agent in writing, and give him ninety days' notice if I desire this contraot discontinued - - - when this property is sold, I agree to bind myself to pay my agentSall over ‡4,500 for their commission, no matter by whom the property has been sold."

Interpreting the oontraot just above quoted, which is in many respects almost identical with the one herein sued upon, we have held that the great weight of authority supports the rule that a stipulation in a real estate broker's oontraot promising him a compensation, even though a sale of the property be made by the owner himself during the life of the contract, is valid and enforceable, where the broker has used ordinary diligence in endeavoring to make the sale of the property. 9 C.J. p. 575, Par. 74, Note 30 - 31; Futrel v. Reeves, 166 Ky. 282, 176 S.W. 1151.

Further conclusions of this oourt in. the case of Harvey v. Hirsh are as follows:

"It is true that the general jurisprudence is, and this court has itself decided, that in order to entitle a broker to a commission, he must be the procuring oause of the sale. But this rule applies in the absence of a oontrary agreement; there is no law that makes a nudum pactum a oontraot by whioh the agent shall be entitled to a o omission in the case a sale is made through himself or through the owner or through anyone else. Suoh stipulation is made precisely for the purpose of avoiding the necessity of-a law suit to determine through whose agency the sale was consummated."

Ihe law is concisely stated in Corpus Juris as follows:

"As a general rule, a real estate broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof, made by the principal, either independently, or through the efforts of another broker, within the time specified within the contract of employment, although the exclusive agent's efforts did not contribute towards the sale, when the principal himself sells the property without the broker's aid." 9 C.J. p. 622, par. 101.

We think, as above stated, that the testimony admitted in this case going to show that a verbal revocation of the contract sued upon had been effected, was an erroneous admission, but even though consideration be given to such evidence, there is positive and other evidence in the record to the effect that the plaintiff made frequent efforts to sell the property of defendant, and had several interviews with her and telephone conversations regarding it, subsequent to the alleged sals by the other broker, to whom the defendant, in violation of her contract, delegated additional authority to sell her property.

It further appears that after the plaintiff had testified to these facts just mentioned, that defendant was recalled to the witness stand, and when asked to affirm or deny plaintiff's testimony concerning his transactions with her subsequent to her attempted revocation of the contract, she could not in any manner be positive as to whether or not such conversations or interviews had ever ooeurred, contenting herself with the statement that she did not remember ever hearing from plaintiff at all, but admitting that she- had learned from neighbors that the property had been shown to various prospective purchasers.

We have considered the authorities oited by counsel for defendant, and find them Inapplicable to the facts of this case, for the reason that in those oited eases parties to the written contract had entered into a new agreement as to some part of the original contract, and it was rightly ruled that parol evidence could under such conditions be introduced to prove the new agreement.

The facts of the case now under consideration are ijuite to the contrary, in that the parol evidence offered was for the purpose of proving a revocation of, and not a change in the original contract, and was particularly offered in substantiation of the averments of defendant's answer to the effect that she had attempted a verbal revocation in direct disregard of the specific provision in the original contract that the said contract could uot be at any time revoked except by a written notice.

plaintiff and appellee, in answering the appeal herein taken, prays that the judgment appealed from be affirmed, and that damages for frivolous appeal be allowed herein. ,iu find from the record of this case no ground for damages as herein additionally prayed for, and same is therefore denied.

Ihe judgment herein appealed from is, in our opinion correct, and the same is hereby affirmed, at defendant's oost in both courts.

JPBGMBira AgEIBMSD.

June 30th, 1922

ROZELL McWILLIAMS VSMrs. J033PHIN3 BASES, WIB. CALVIN HTA7Í

No. 8290

JUDGE CLAIBORNE,

dissenting*

Tbs defendant testified that she called at plaintiff's officé in July or August 1918, and told a young lady occupying a desk in that office and apparently a clerk representing the plaintiff, that she came there to cancel the contract, and that she did not want plaintiff to sell her property except without a contract* and that the clerk answered it «aa all right. The defendant is corroborated in this testimony by a lady who accompanied the defendant and who heard both the defendant and the clerk.

In her answer to the petition in this case the defendant alleged:

"that an or about the 10th. day of August 1918* accompanied by a friend she called at plaintiff*s office, but not finding him at bis office, told his representative that she desired either to revoke or modify the contract into which she had entered with the plaintiff; that she wished to revoke the contract or modify it bo that he would not have the exclusive right to sell her property; that if he however* procured a purchaser for her or made a sale of it 3he would pay him a commission as she would to any ons else who might effect the sale; that the person to whom she spake, a clerk of the plaintiff, said it was all right and that she would fix it and report to Mr. Me Williams, what she had said*.

Notwithstanding this answer, entering upon more details than is usual and -putting plaintiff fully upon his guard and notu withstanding the testimony of the defendant and of her friend, the plaintiff did not produce his clerk as a witness to deny either the allegations of the answer or the testimony of these witnesses. We must therefore presume that plaintiff did not produce his clerk for the reason that she would not have contradicted the testimony of these twoMies. 33 A. 1057, 1073; 144 379; 106 La. 591 and authorities; 41 A. 866* 39 A. 426; 38 A. 823k 777 (779)* 36 A. 688. 434.

71» presumption also is that his cleric caraiimicated to tho plaintiff tbs message she had received from the defendant, tho plaintiff however denies it. Be also saya he never was notified by Mrs* Hyatt of any revocation. Of this, however, there is no claim subsequent to the date when defendant alleges she revoked her procuration, plaintiff testifies he thinks he had one interview with the defendant and several telephone conversations. The defendant denies this.

In ootanenting upon the testimony of parties in. their owi behalf, the organ of the Court, in Cola vs Colo. 39 A. 880, cfiotes tho langiage of the immortal Scottish bard as follows!

*1 no say men are villians all.
The real, hardened, wicked.
She has nae fear but human law
Aro te tbs few restricted;
But ah! mankind are unce week
And little to be trusted,
then self the wavering balance shakes,
"Tie rarely right adjusted".

But it ie net necessary that knowledge of the revocation should have been coununicatsd by his clerk to the plaintiff, nor sea it necessary that tho defendant should have notified the plaintiff himself. Hética to the cleric or agent sea notice tO> the principal, sad the negli gsnoe of the dork mist bo visited upon his employer.

It is net necessary to say that while Article C. C. 2376 (2366) prohibits parol evidence against er beyond vfaat ie contained in written acts, or on duct may have bean said before, or at the time of unking then, or ainoe, with a view of enforcing or resisting the execution of the original contract, tho jurispru-dent» has always admitted parol testimony to show a subsequent amendment, modification, or abrogation or execution of a written contract, which the law does not require to be in writing. 5 H.8. I» writing.

It mu ¿voided forthe first tin* in Page vs Nicholson 27 A. 116 tint «torn the contract provided that no extra would bo •lloved uniese exeeatod under written authority» no parol m ad* ni* si ble in aid of a claim for extra*.

The rigidity of the rale «as relaxed in the Monarch ceso 49 ki 991 «boro the syllabna» after affirming the principle of the Rige east, concludes!

"it not baring been atom that the proprietor agreed is the change"»

In Wilma re Smith 114 la* 238 the Court enforcing a con» tract in shich a similar darme me insertad said on p 231 j

"In the ease cited (monarch) the testimony did not prove that the ownar knew anything about the extra wort. It folian that he had net assented to it. Here the wort «as dono». The owner me fragrantly about the building and saw the improvements as they were mads. It is not Shewn that the least objection was over mads, nor that they bars not received fell consideration*.

Story vs Insurance Co. 37 A. 254 ms a suit on a policy which provided that nothing should bo construed as a salver of any printed condition of tbs policy unless it was endorsed on the policy, fund testimony was admitted to prove declarations and ads of the Company amounting to a waiver of the policy» the Court admitted the testimony, and aaidt

•The reason of this ruling docs not antagonise the general principia which excludes parol evidence to con» tradict.or alter a written instrument. The offset of the testimony is not to deny the existence, or contradict tbs true meaning of the written instrument, but Binroly to stow acts of tto party to he benefited thereby, manifesting has intention to abandon or waive such benefit*.

In 3t. Landry vs Teutonia Ins. Co* 113 La. 1057 the Court aaidt

"Objection was made to the admiaaion of parol evidence to.prove waiver at proofa of loss, on the ground that the policy pravidsd that all waiver» of any of its condition» or stipulations mat bo in writing. In Story V» Insurance Co. 37 A. 294. it was hold that ouch & clausa did not apply to salvara by subsequent agreements. acta* or comtict".

It will this be seen that according to our own Supreme Court knowledge of the extra work and failure to object, are construed as an assent to it. and a waiter of the notice in writing.

Such is the great weight of authority in other States. 9 C. J. 251. 253: 43 Am. Rep. 382. 390; 67 N. Y. Supp. 177; 37 N. Y. S. 562; 141 N. Y. S. 222; 63 N. W. 479 reason of rule; 74 A. 763; 166 £U«. A. 20; 17 N. Y. S. 351. leases; 76 S. E. 895; 48 L. R. A. N. S. 579, 564; 39 N. W. 76; Bishop on Contracts 7066; 56 N. E. 335 (339); 53 Atl. 36; 2 L. R. A. 625; 69 Pac. 784; 3 Elliett on Contracts p 6 1861; 76 S. E. (W. Va.) 895 (1912); Simpson vs Mann, 48 L. R. A. N. S. 579.

*Yhe written contract, not under seal, provided "that no alterations or additions shall be allowed or paid for unless the same and the cost be agreed to in writing in advance ani.no change or Modification of this contract shell bo rocogiiaod unless evidenced by an agreement in writing9.

Oral evidence was given for the purpose of showing that change in the character of the work was ordered in behalf of !&nn, and that ha agreed to pay for it additional compensation. A brief in the case states that the clause just cpoted from the contract constitutes the reason wig- the Court took the case from the jury. We do not think that the clause justifies that mling. I quote from Page on Contracts* 1349;

"If the written contract contains an express provision that no change or modification thereof can he made except by writing to be. signed by one or both carries, the partios to such contract may, nevertheless modify or abrogate it by subsequent oral agreement, since the oral agreement rill operate as a waiver of the terms of the contract inconsistent therewith, including that term which requires taibseejssnt that the policy provided that all waivers of any of its conditions or stipulations mat be in writing. In Story vs Insurance Co. 37 A. 254. it was held that such a clause did not apply to waivers by subsequent agreements, acts, or conduct*'.

It will thus be 3een that according to our own Custom Court knowledge of the extra work and failure to object, aro construed ae an assent to it, and a waiver of the notice in writing.

Such is the great weight of ;authority in other 3tates. 9 C. J. 251, 253; 43 Am. Rep. 382, 390; 67 N. Y. Supp. 177; 37 N. Y. S. 562; 141 N. Y. S. 222; 63 N. W. 479 nmon of rule; 74 A. 763; 166 Ill. A. 20; 17 N. Y. S. 351, leases; 76 S. E. 895; 48 L. R. A. N. S. 579, 564; 39 N. W. 76; Bishop on Contracts 7066; 58 M. E. 335 (339); 53 Atl. 36; 2 L. R. A. 625; 69 Pac. 784; 3 Elliott on Contracts p 6 1861; 76 S. E. (V. Va.) 895 (1912); Simpson vs Mann. 48 L. R. A. N. S. 579.

The written contract, not under seal, provided "that no alterations or additions shall be allowed or paid for unless the same and the cost be agreed to in wrlticg in advanes and no change or modification of thi s contract shall be rooogtf sed unless evidenced by an agreement in writing".

Oral evidence was giren fer the purpose of shewing that change in the character of the work was ordered in behalf of Uam, and that he agreed to pay for it additional compensation. A brief in the com states that the clause just qistod from the contrast constitutes the reason why the Court took the case froai the jury. ¶* de not think that the clause justifies that ruling. I epote fren Atge on Contracts# 1349»

"If tbs written oontract contains an express provision that ns change or modification thereof can be made except by writing to be signed by one or boto parties, the parties to such coni met may, nevertheless modify or abrogate it by subsequent oral agreement, since the oral agreement will operate as a waiver of the term e? the contract incsesie* tent therewith, including that term wM«3j respires —^irfumt modification to be in writing. Question» of this sort are often presented in building contracts, where it is provided that Modifications of contracts for extra work Bunt be in writing and subsequent oral agreements for extra work or modifications are held valid*.

Bishops on Contracts • 7066 asserts this proposition broadly.

"Sham ha has agreed that he will only contract in writing in a certain nay, ha does not thereby «reelude himself from Baking a parol contract to change it. Thera can be no mora force in an agreement in writing fcbt to agree by parol than in a parol agreement not to agree in writing, and every such agreement is ended by the new one which contradicts it". 69 Tex. 353; 6 S. W. 605; 5 Am. St. 63; 3 W. Va. 46. A written contract is of no higher dignity, except under the Statute of frauds, than an oral contract and the «arty cannot tie his handB from its modification by prohibiting.it unless in writing. Everywhere we find the law to be that a new or changed contract will take the piece of, or modify, c former written contract not under seal. Clark on Contracts 610; 9 Cyc 597".
"But the parties to a written contract of the chamotor of the one under review (providing that no change shall be made except upon a written order) aro as free to alter it after it lias been made as they were to make It, and all attempts on their part by its terns to tie up their freedom of dealing with each other will be futile. 58 Conn. 39; 148 Mass. 394. To this end parol agreements will be as effective as written ones*. 74 Atl. 763 (765).
"It does not stand with reason that parties can by contract preclude themselves from contracting in any particular way; that such a contract, once entered into, becomes an iron bond, which the will of the parties is impotent to annul or modify". 53 Atl. 37.
"A contractin: party cannot so tie his own hands, so restrict his own legal capacity for futuro action, to Mad or obligato hlasclf by Mo further action or agreement eentrery to the ton» of tha written contract (which liptnl written oonsent to chango it}* 331'ich. 143*. .33 ®i’vW* (liiw*).VV.
^Attempts of partios to tie tip by contract their froedmaef dealing with saeh other era futile. The contract is a fast te be taima into account in interpreting the anbwecuent conduct of the plaintiff and defendant, no doubt, lut it sennet be assumed, as a miter of Is* that the contract governed all that web done until it was renounced in so many words, because the parties had a right to renounce it in any way» and by any node of ess* preseiott, they saw fit. They could aubetitut# a new oral contract by oen&tat and intimation, as well as by expresa words”. 2 L. R. A. 625,
"It has frequently beta bold in this State that res-fcrioiiv» eltnaee similar to» though not identical with, this ene, (that contract Mil not be altered except by writing}# «an be waived expressly» or by the acts and conduct of tiie parties. The oaaaon prevision in building contracts that no payments Mil be mads without the usual architect’» certificate is one? the very cesasen provision in leases that the tenant shall not sublet without the written permission of the lessor is another* 73 N. Y. 567; 102 N. Y. 87; 5 N. E. 791". 17 N. Y. 3upp. 351.

A written notion of 30 days provided IS a loase is sup* plied by evidenoo by an oral consent showing a waivor of the written notice. 70 N. Y. Sup. 210.

The prohibition in a lease to sublet the premisas for a different parpase without the written consent of the lessor nay be «hotel to have boon waived by parol consent of the lessor. 55 N. Y. Supp. 1; 4 Barb. 604; 7 Jones & 3. 200; 102 N. Y. 92; 73 N. Y. 567; 67 S. W. (Me.) 967.

"The consent (to «sublease) is sometimes required by the terms of tbs loose to be expressed in writing*.
"Written consent my be v.’sivsd by parol*. 24 Cyc 964 <©)»
"An open policy of insurance Kay bo Modified by safe*»* quent pawl agreement althers# the policy provided ths& Ho condition should ha waived excerpt by specific Indorse* moist on the policy®* 88 Mo. 325 (57 Am. Rep. 416); 39 N. W. Minn. 76; 37 A. 254.
libera a building contract psevides that
“®a extra work ia to be paid fee except by contrast ia writing0

the parties may verbally* expressly or isapliodly, or tacitly mila. this provision and agree to alterations by parol. 1 Creel. (16 Ed) 304; 18 Cal. 180 (165); 47 N. W. 473 (Neb.); 36 N. W. 510; 69 Pac. 784; 58 N. E. (ill.) 335; 76 S. E. 895 (W. Va.); 74 Atl. 764; 36 Atl. 36; 166 Ills. App. Cy. 20 ( 23); 54 N. W. 937; 6 So. 834; 2 L. R. A. 625 (Mass.); 43 L. R. A. N. S. 564 (568) and suthosi-tias there quoted? 48 L. R. A. N. S. 579; 17 N. Y. Supp. 351; 9 N. Y. St. 570; 24 N. E. 1096; 19 N. E. (Mass.) 549; 141 N.Y.S. 222.

"The casa seeroa to settle down to the simple question whether a parson who has agreed'that to will only contract by writing in a certain way. precludes himself from making a parol bargain to change it. The answer is aatáifeat. A written bargain ia of no higher 1-egnl degree Warn s paral one. Either may vary or discharge the otter, and there can be m mare force- in an agreement in writing rot to «gres by mrol than in a parol agreement not to agree in writing. Every such agreement is ended by the new on® which contradicts it". 33 Michigan 143 (153); 53 Atl. 37.
"A witten contract may be modified by a verbal agreement. thou# the contract recites that no modification «hall be made except in «radting*. 27 S. W. 504 (Texas); 11 Century Digest Tfo. Contracta p 13428 1123.
"A written contract may be modified by the parties thereto in any manner tbsy eteogs. notwithstanding agreements prohibiting its alteration axaept ia a particular mama?» So it is generally held that a contract stipulating that any modification must b® ia writing may novertheless he modified verbally". 13 C. J. 594.S611.
9 Cyo g 557 ill)
"A simple contraefe. Whether written or oral, my bo discharged, according to the weight of enthority, by a sáfese» tjuant written or oral contract, unless thers is a statutory provisión to thscontrary. Nor ia it material that the aritten contradi provides that no modification shall be nade except in \nritin& for this provision itself may be changed by word of mouth".

Sheas authorities are in accord with eessaantators of the Code H&pcleon. and -sith the decisions of the Court, of Cassation and Courts of Appeal of France in the interpretation of the right of the lessee to sublease, and for the grane reason. 18 Brajdry-Locantinerie sayas * 110? p E64s

"As we shall say further the verbal or tacit consent of the lessor suffices, even shan the contract of lease requires his consent in writing".
* 1117 p 588s
"The tacit consent msífíeea* oven when it has bean ¡said that the consent in writing of the lessor shall bo necessary. The necessity of a writing has bean stipulated only to facilitate the proof: the parties did not intend to subordinate the validity of tbs sub-lease to a writing. Sven had they so intended, the verbal or tacit consent would still be sufficient, because the lessor could not bind hi a hands and condemn M ras elf not to bo able to consent without a writing; therefore if he gives hia consent without writing, e new agreement is formed by virtue of which the @»MLease is admitted by the lesser. Hence, the Court ox Cassation does not ga far eno«gfc,,a¡ocoriling to us ia deciding that it belongs to the judges to decide finally if the writing has been or not, according to the wishes of the parties, a substantial element of the consent". C. N. 1341, 1717; 30 Dallo; Rep. p 406 S 475; 4 Dalles Codes Ann. p 325 No. 189 et seq; 1 Trolong Lounge No. 141; 25 Laurent £ 232.; 1 Guillouard Louage 327; 4 Fuzier-Herman on Art 171.7 p 254,48, 49, 50.

Assuming there foro that the verbal notice san given, assuming 'hr.t it reached plaintiff or his agent, which Í3 equally binding, assuming that the plaintiff made no objection to the parol notice, I have come to the conclusion that tlie parol notice inven in this case was sufficient, and that defendant had lOwlly revoked her procuration to the plaintiff in July or August 1918, and that plaintiff's claim is therefore not founded, end that there ought tc he judgment in favor of defendant rejecting hi3 demand.

June 30th, 1922.  