
    Charles Claiborne; Judge.
    LA. BUILDING & CONTRACTING CO. VS JOSEPH BENINATI.
    No. 7859
    November 22d, 1920.
   LA. BUILDING & CONTRACTING CO. VS JOSEPH BENINATI

No. 7859.

Appeal from,Civil District Court, Hon. Porter Parker, Judge.

CHARLES F.CLAIB0RN3, JUDG3.

This is suit for rent. The plaintiff alleged that it had leased from the New Orleans Terminal Company the premises Nos. 227 and 229 N. Rampart Street; that it had .subleased verbally by the month beginning February 1st, 1917, to the de - fendant, Joe Beninati, the same premises for the monthly rent of one hundred and ten dollars payable in advance; that it made demand for the month of February, which the defendant refused to pay; making the affidavit required by lawt the plaintiff issued a provisional seizure, and prayed for judgment for $110.00 with lessor's privilege and costs. This suit was filed February 6th, 1917.

The defendant denied that he had made a lease with the plaintiff, and averred that he had no knowledge that plaintiff held said property under lease from the Terminal Company other than plaintiff's averment; he further averred that he had been a. tenant of the Terminal Cpgipany fpr abou^ five yearsat $45.00 per mdrAh^br the same premises; tha*he was in possession of them when he was informed on February 1st, 1917 by the plaintiff herein^the Louisiana Building and Contracting Co.ythat it had secured the lease on said premises; that he asked to see the lease, which plaintiff failed to exhibit; that plaintiff's agent then stated to him that, if he desired to remain in said premises, he would have to pay $110.00 per month, which he refused to pay, or even $45.00 until the end of the month; that the amount demanded of him was not the amoünt due, and he did. not know plaintiff>as his landlord; that he still believed that the Terminal Company was his lessor, as he had never been notified by said company to the contrary; he denied that he intended to remove the property out of the premises; and he prayed that the suit be dismissed. He swore to the truth of his ans i©r.

There was judgnent in favor of plaintiff, and defendant has appealed.

The case turns entirely upon, q,question of fact. As /¿í*' there is no written evidence^ it depends upon the appreciation of the testimony. Defendant admits that he occupied said premises as the leasee of the Terminal Company at ,$45.00 per month payable at the expiration of each month. When the plaintiff acquired possession of said premises as lessee of the Terminal Company, it succSeded as subrogee to said company, as lessor of the defendant upon the same tenas and conditions, unless the plaintiff and the defendant agreed to different terms. 8 N. S., 560; 44 A., 256; 117 La., 534. The only question of fact therefore is, did the plaintiff and the defendant rol?e and agree upon new and different terms of lease? The burden of proof rested of course upon the plaintiff, because when a condition of things is shown to exist the presumption is that it continues until a change is proven. 38 A., 53; 15 A., 715; 4 A., 557; 7 R., 238; 16 Cyc, 1052 § 3 Vo. Evidence; 22 A. & E.E. Law p 1238 5.

The only eivdence -upon the question, on the part of the plaintiff, is the testimony of James J. Gazin, the manager of the plaintiff company. He testifies:

Q. Mr. Gazin, you represent the Louisiana Building & Contracting Co.?
A. Yes, sir.
Q. Did your Company lease from the Terminal Co. the property 227 and 229 N. Rampart Street?
A. Yes, sir, we leased all that property.
Q. I show you this lease, which is already offered in evidence, and ask you if that is the lease?
A. That is the lease; that is my signature on there.

^Tbis lease is dated December 22d, 1916.^)

Q. Mr. Gazin, after the signing of this lease, did you call on Ur. Beninati with reference to the rent?
A. I bad better explain that. A couple of days after I signed up that lease, we started repairing, which the contract said we had'to spend so much money on repairing these buildings. We had to do all the repairs and put them in good condition. 'He had to apend $1800.00 to,put them in condition, so we could get some rent out of. them, and Kr. Beninati came over and asked me if we had taken hold of them, that he heard from Kr. Bender, of the Terminal C'o,, that we had taken them over, and wanted to know if I would let him stay in the building. I told him I would let hiu stay there provided he paid the rent we asked.
Q. 'Then did you have this conversation?
A. That was somewhere right after New Year, right after the signing of the lease. 7/e started to work on there right after the ^irst of the year.
Q. Hoy/, just after New Year, you had that conversation with him?
A. Yes, and then I told him the rent would be $125.00 for the two buildings, and he figured it with me it would not justify kirn to keep these buildings at $125.0(1 a3 he was getting them previously cheaper, and I figured with him where his tenants were paying him amounting to $140.00 a month, and his rent was free for his pressing— sliop and stuff and places where he kep£s the automobiles was free. He said:. "'Jell, I would have to think it over"; and a few days after that, he cane back at me with a proposition, and asked rr.e to givo him the building.
Q. ’.Then was that?
A. A couolc of days afterwards, and I told him I would take it up with my Company, ar.d about a 'week afterwards, v/e started the repairs, and I went to him and told him I had token it up with my Company, and the very best we could do with him was to let him have those buildings at one hundred and ten dollars rent, paid in advance, in accordance with t! e Torminal Co:.oary's lease, as we hod to pay then o;rs in advance. Then ho «aid: “'Jell, I would like to stay there", :.r.d le wished he ’would keep the buildings, th’-t he spoke to the tenants, on,’., r at f.at tine, Hrv.Kyar. all tl.o tenants c.r: e over to see r.e and a Vice-.’. ■ .e if I should pay it. x x x I told them if hr. beninati wanted the prop-rty, 1 would iTive him the preference, which ,-y Company agreed to re~t to l.ii: at 0110 per month for tie two build:we, rlich he agreed to take Ac" x x x
Q. And I understand you to say, Hr.Gazin, after a discussion as to the rental of t!;sse two buildings, an agree-i.er.t was finally concluded?
A. Yes, at or.e hundred ard ten dollars.a month.
Q. And you had that agreement with hr. Joseph Benir.ati in person?
A. In person, x x x

On cross examination, the witness repeats this testimony and says that the agreement was made between the 14th and 16 of January, that Beninati never told him what rent he v’cs paying; that when he called for the rent on the first of February, Benir.ati refused to pay without giving ar.y reasons.

Joseph Beninati testified that he had occupied the two properties 227 and 229 Korth Rambert Street as the tenert of the Terminal Station Co. for nearly five years at $45.00 a month; that he ¡¿new no one else as landlord until February first when Yr. Gas in came to him and asked him to pay tile rent to him, $110.00 for the two houses.

Q. Fow, stats the conversation that you had with Hr. Gazin, what he told you, and what you told him?
A. He told me he is the representative of the landlord' now, and if I want to stay and keep that two houses, I have to pay him $110.00.
Q. Whet did you tell him?
A. I tell him I don't know he is the landlord; I know the landlord is the Terminal Station Co., and -I pay the T.-n.'.ir-al Station $45.00 a north when the month is up,, r.ot in advance, either, and if he represents the landlord, and he show me any paper after the month is up, I will be satisfied to pay $45.00.
Q. Did, you and Hr. Gazin enter into any agreement?
A. No, sir, we have no agreement.
Q. Did. you ever agree to pay him $110.00 in advance?
A. No, sir.
Q. Did you agree to anything with him?
A. No, sir, nothing at all. x x On the same day, on the first of February, in the evening, about six or seven o'clock two other gentlemen came along down there, and they told me they was the representative, the collector for the Louisiana C-'tfntracting and Building Co,, and they want to collect-$110.00 from me. 1 say: "How do I know who you are? I pay my rent to the Terminal Station Co,, and I pay $45.00 for that two house". They say: "So you absolutely refuse to pay". I say: "Certainly, I refuse to pay, because I pay to nobody outside of the Terminal Co." and they walked off; I invite them to come in, and they walk out and never . say nothing, x x x

In the presence of this conflict, we must apply the rule of law that witnesses must be- weighed not counted. If both witnesses, one practically the plaintiff, and the other the defendant, appeared before us equally as credible, plaintiff could not recover. But if the credibility of one of tjiem has been impeached, then the scales of justice must incline towards the other. Nothing to which the plaintiff's manager, Gazin, has testified has been contradicted except by the defendant. Not so with the defendant.

I. He averred and reiterated, in his sworn answer, that he was not aware, prior to the first of February, that his lessor, the Terminal Co,, had leased the premises to the plaintiff herein, the Louisiana Building and Construction Company; he testified to that fact repeatedly, and gave it as one of the reasors why he would not pay plaintiff when it called upon him for the rent on February 1st.

His testimony on that point is contradicted by the testimony of two disinterested witnesses, as follows:

Mr. W. S. Bender says:
Q. Mr.Bender, in whose employ are you?
A. I am now employed as Chief Clerk to the Vice-President of the N.O. and North-Eastern and the New Orleans Terminal Co., and the Executive General Agent of the Southern Railway.
Q. And in that capacity, you take cognizance of the general business of the Company, the leasing of buildings and so on?
A. Yes, sir, we will do that. It might be well to state that my position now is different from what I occupied formerly, especially at the time that the leasing of the property under consideration in this case was taken up. At that time, I was Secretary of the N. 0. Terminal Co., and served as Chief Clerk to the General Manager of the Terminal Co. , who had direct charge of the leasing of all of these properties along Rampart Street, and, as his Chief Clerk, I personally prepared and handled all of the conditions respecting the leasing of these properties to the Louisiana Building and Contracting Company."
Q, Now,Mr. Bender, after this lease was entered into, did you have any conversation with Mr. Beninati regarding the leasing of this property by the Louisiana Building & Contracting Co.?
A. Yes.
Q. Will you please state the nature of that conversation?
A. The occasibn of my talking at all to Mr. Beninati Was by reason of the fact thfet Mr.Kelly hanpened to be out of the office one afternoon; I am not certain about the • date, but I think it was early in January, shortly after this lease was drawn. All of my dealings with the Louisiana Building and Contracting Co., all of Mr.Beni-, nati's dealings in connection with the ratproofing work and the subsequent prospective lease of this property had been handled by him with Mr. Kelly. It happened that early in January, I think, or the latter part of December, he called at the office in company with some gentleman to ask about the ratproofing of these properties. I explained to him that Hr. Kelly ms not in, and, in the course of the conversation, he inquired as to this ratproofing work, and I told him that a contract had been let with the Louisiana Building and Contracting'Co. for that work. Hither he or the gentleman who accompanied him asked something about the lease of this property, and I said to him: "We have leased these properties to the Louisiana Building and Contracting Co.". The gentleman who was with Mr.Beninati siuply threw up his hands about in that fashion (Indicating): "fell, we are losing our time here talking about this proposition; it is closed up". There was nothing else I could tall the gentleman, because this contract had been signed absolutely with the Louisiana Building & Contracting Co. in December, the 22d of December, the contract shows”, x x x I make that statement to show how little attention we paid to the propriety of this gentleman being notified, but he was notified by me, as-a positive fact".
Q, You gave him to understand that this lease would go into effect from the first of February on?
A. Yes, sir. x x x

Although Beninati admitted that conversation with Mr. Bender, he again denied that the latter had informed him that the property had been leased to the plaintiff. , But he failed to produce the gentleman who had accompanied him as a witness to Mr. Bender's office, to corroborate his.own testimony and contradict that of Mr. Bender^ nor does he account for his absence.

John S. Poweil is next examined. He says:

Q. Hr. Powell, in whose employ are you at present?
A. N. 0. Terminal Company, for the last 16 years. I am Auditor for the Company.
Q. Did you have any conversation.with Mr.Beninati relative to a lease of certain properties from the W. 0. Terminal Company to the Louisiana Building & Contracting Co?
A. I advised him personally in my office that the building were tented'to the Louisiana Building & Demolishing Co, due to the contract that was let by Kr. E. A. Kelly.
Q. And you told him when the new landlord would take possession?
A. Yes, sir.
Q. When did that conversation occur?
A. I think that was some time in the lattes part of ■December.

There is no specific denial by Beninati of the testimony of this witness, nor of the fact that he received notice from him.

There is no doubt that the preponderance of the testimony upon this question of notice is with the plaintiff, and that this Court must come to the conclusion that Beninati did not testify truthfully upon this poipt. 10 15., 677.

In Singer'vs Carondelet Canal Co., 39 A., 484 the Court said:

"On the 23d of August, 1884, the defendant Company gave Otto Touche written notice that the privilege granted him to run a flat across the Bayou was Withdrawn. He denies having received the letter, but a witness swears positively that he handed it to him, and we are inclined to believe his statement, as he is without interest in the suit." 33 A., 1349.

Where the testimony of plaintiff is contradicted by that of defendant,judgment will be given in favor of the party having the preponderance of evidence. 23 A., 501; 125 La., 619 (638).

The testimony of a witness which is successfully contradicted as to one fact in the case, will not be sufficient to establish another fact in the some case. 26 A., 591 (592).

The maxim "Ealsus in uno, falsus in otmibus" is another element destroying the credit of this witness. 2 Evans Pothier p 185..; 30 !.& S.2. L.p 1072; 107 La,, 298 ; 40 Cyc, p 2586; 7 Wheaton, 334 (335).

II. Beninati also testified that be owed only one month’s rent, December 1916. The Auditor of the Terminal Comuany swore he owed four months anterior to February. 1st, 1917. Beninati promised to produce the receipts to corroborate his testimony; no receipt is in the record for December 1916. There is a receipt dated November 20th, ISIS for $20.00 for the house 227 N. Rsjnoart Street for the month of Auirust 1916; the next receipt is dated December 4th, 1916 and-is for $100.00 for rent of "houses on K. Rampart Street"; out besides 227 and °29 Rampart, Beninati also rented from the Terminal Company Dos. 367, 343, and 345 N.Rampart Street.

hr. Powell testifies:

.A. "He (Beninati) was not accustomed to payin'; any'recular time. 'He were always after Beninati to nay that rent, and that is the reason he was bad:, and we contemplated filing suit against Beninati for that back rent".

In an ina,uiry concerning the veracity of a witness his Character for honesty may be examined. 45 A., 508.

Besides the conclusions of law to which we have just referred^ this case dependa upon the veracity of witnesses. The Judge of the Trial Court saw and heard Beninati testify; he decided against him, and we see nothing in this record that would justify us in reversing his judgment, but on the contrary much to confirm it. 109 La., 520 (524).

In Ball, Lyons & Co. vs Lignoski, 24 A., 484, the Court said:

"In the first place it must be remembered that the Judge saw and heard the witnesses, and so far as there may be any conflict his decision nmst have groat weight, snd ought not to be reversed unless manifestly erroneous".

6 M., 421; 47 A., 1446.

In Laford vs Weber, 73 A., 253, the plaintiff sought to make the defendant, a sheriff, liable for failure to return an execution within the delay reo.uired by law. There was judgment for defendant; ' The Court said:

"In this case the Sheriff alleged, and offered evidence to establish, a legal excuse, that he acted under the advice and direction of the attorney of the oarty in whose favor the writ was issued. The Sheriff and the Attorney (for-plaintiff) alone have testified in this case. The former states positively that the attorney authorized and instructed him to retain the writ in his hands, while the attorney denies it as positively. The question to be decided being one of fact, the opinion of the judge a quo before whom the witnesses testified is entitled to great weight. Quoting 5 La., 31; 13 La., 412; 3 A., 163; 21 A., 169.

The judgment in favor of the defendant aa affirmed.

Tor these reasons tho jud.-ar.ent in favor of plaintiff is affirmed.

November 22d, 1920.  