
    SMITH v. BELL.
    No. 3574.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 8, 1952.
    Rehearing Denied Jan. 26, 1953.
    
      Leon A. Pieou Jr., St. Francisville, for appellant.
    Sam J. D’Amico and Louis D. Curet, Baton Rouge, for appellee.
   LOTTINGER, Judge.

The lower court has written a well reasoned opinion in this case and we adopt a portion of same as the opinion of this court, which is as follows:

“On May 11, 1950, the plaintiff George A. Smith sold to Jean N. Bell and his wife, Dorothy Ingraham Bell, a certain property in the Parish of West Feliciana known as Laurel Hill Plantation, together with all buildings and improvements, rights, ways, privileges and appurtenances thereunto belonging.

“On July 9, 1951, plaintiff brought this suit against his vendee, Jean N. Bell, alleging that defendant Bell had wrongfully converted certain farm equipment belonging to him and which by agreement with said defendant had been left on the property pending removal. The defendant answered averring that no equipment belonging to plaintiff had been wrongfully converted, and in reconvention, set forth a claim for damages against 'Smith for various items of injury he had sustained through plaintiff’s faults of commission and omission.

“On the trials of the issues thus presented, defendant objected to the admission of any testimony tending to establish ownership in plaintiff of any of the items of farm equipment described in his petition. His contention is that all of the equipment for the value of which plaintiff is seeking recovery, was included in the sale of May 11, 1950, as being appurtenant to the proper cultivation of the plantation, and that parol testimony could not be 'heard to vary the written act. It is plaintiff’s contention that the written act of sale, under date of May 11, 1950, did not by any means reflect the whole agreement entered into by plaintiff and defendant. That there were certain written memoranda referred to and offered on the part of defendant which tend to create uncertainty as to the contract entered into, and that the apparent ambiguities can only be made clear by the admission of parol testimony.

“On the trial of the merits, plaintiff sought to establish the intent of the parties as to what equipment was to be transferred to Mr. Bell and what equipment was to be retained by Mr. Smith. The first question we must decide is whether or not plaintiff had a rig'ht to offer evidence to prove the intentions of the parties in this matter, and secondly, we must decide from the evidence in the record what that intention actually was.

“Plaintiff admits that the general rule in our law, as set forth by Article 2276 of the [LSA-] Civil Code, is that parol evidence shall -not be admitted to vary the terms of a written contract. If it be admitted that plaintiff’s case is based solely upon the act of sale in question, the argument that parol testimony should not be admitted would undoubtedly be valid, but it becomes immediately apparent that the stipulations, some of whioh were written, extended beyond the terms of the written contract itself and that in order to determine the intention of t'he parties as a whole we must admit parol testimony' not to vary but to explain just what the contract in all of its details really was. Besides, it is also apparent that the plaintiff’s case does not depend entirely on parol testimony for there are certain written documents which tend to support the idea that the contract between plaintiff and defendant was not reflected by the act of sale itself and would certainly tend to make the meaning of the act of sale uncertain.

“The several documents establishing the fact of collateral agreements incidental to the act of sale itself make this a case where the exceptions to the rule against the acceptance of parol testimony seem particularly applicable.

“In the case of New Orleans & Carrollton R. R. Company v. Darms, 39 La.Ann. 766 [2 So. 230, 232], the Supreme Court admitting certain parol evidence, said:

“ ‘We think * * * that the evidence fell within the familiar exception to the general rule which admits parol, in order to ascertain the nature and qualities of the subject-matter of the contract, e. g., to identify or define the extent of the premises leased or sold, when not sufficiently described in the written contract, and the like. 1 Greenl. Ev. §§ 286, 298a; * * * McLeroy v. Duckworth, 13 La.Ann. 410/

“This principle was affirmed in the case Walker v. Ferchaud, 210 La. 283, 26 So. 2d 746; Close v. Rowan, 171 La. 263, 130 So. 350.

“This theory is borne out in the case of Brandin Slate Company v. Fornea [La. App.], 183 So. 572, 573. There the plaintiff sued for money on a roofing job. Defendant refused to pay on the grounds that the job was defective and that plaintiff had agreed to guarantee the job.. The contract was in writing, but the agreement of guaranty was oral. The question is whether defendant could introduce parol evidence of the oral agreement of guaranty. Court admitted the evidence and said:

“ ‘Parol evidence is admissible to prove an independent collateral agreement relating to the written agreement, and where the parol agreement does not contradict the writing but merely covers an additional and collateral undertaking/

“The following is the concise statement which I have taken partly from plaintiff’s brief:

“ ‘There are two written documents in the record affecting the property in question and the equipment thereon, both of which were executed and signed by both parties and both of which were duly and properly introduced in evidence. The first instrument, dated April 24, 1950, and identified in the record as P-1, purports to be an agreement relative to certain pieces of farm equipment situated on the plantation. In essence, the agreement provided that Bell would receive certain specified pieces of farm equipment in return for the lumber from'a gin house on the plantation which Bell would otherwise be entitled to when he bought the plantation. The very nature of the agreement reflects the parties’ intention and understanding that Bell was not to acquire all the farm equipment on the plantation with the sale, otherwise he would not have entered a special contract reserving part of said equipment.
“ ‘The second instrument is the Act of Sale, of the plantation from Smith to Bell and identified in the record as D-2. The act provides that Smith transfers the plantation along with “ * * * all appurtenances thereunto belonging”, except the gin house. According to defendant, this language implies that Bell was to be the owner of all the farm equipment on the premises at the time the sale was passed on the theory that such equipment would he .classified as “appurtenances”/

“From a purely objective standpoint, these two instruments taken together certainly create an ambiguity as to what was actually sold or intended to be sold. If these instruments are taken separately, then the first must be taken to be an independent collateral agreement, because it deals with something not specifically covered by the act of. sale dated May 11, 1950. In either event, the facts would fall into the category of an exceptional situation, and parol should be admitted and considered in determining the actual intent of the parties and explaining the meaning of the two instruments. In the final analysis, the intent of the parties should be the determining factor in all contracts. This proposition is supported by .the following extracts from our Civil Code:

“ ‘When there is anything doubtful in agreements,, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.’ [LSA-JC.C. art. 1950.
“ ‘Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.’ [LSA-] C.C. art. 2037. ■ .
“ ‘Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.’ [DSA-JC.C. art. 1964.
“ ‘The equity intended by this rule is founded in the Christian principle not to do unto others that which, we would not wish others should do unto us; and ón the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties- have made for themselves by their contract, áre silent, courts must, apply' these principles to determine what ought to be incidents to a contract, which are required by equity.’ [LSA-JC.C. art. 1965.”

Granting that parol evidence was admissible in this case to show the full intent of the .parties and to prevent any injustice through what might be termed a too strict adherence to the general principle excluding parol testimony, it appears that the plaintiff has established his ownership to the equipment he claims, by a preponderance of the testimony, and therefore, judgment will be in his favor for the following items, and valuation as follows:

■Smith

1 Disc Plow - 325.00

1 Mowing Machine ■ 325.00

1 Tanden Disc 200.00

1 Plow ■ • 40.00

1 Wagon. , 40.00

Line Shaft 40.00

Tongue & Grooved lumber ' - ' 200.00

. “As to defendant’s reconventional demand, I do not believe from the whole mass of testimony that he has established his claim by a preponderance of the testimony and with legal certainty, with the exception of his claim for the reimbursement of one-half of the 1950 taxes upon the property, of $115.19 ($119.52), for which amount he should be reimbursed.

“It is apparent that there is merit in the claim- of defendant for damages on account of the detention by plaintiff of the truck which undue detention is admitted by plaintiff himself, but in the absence of any estimate on the part of defendant as to just what financial loss he suffered as a consequence, the Court is unable to - furnish such an estimate.

“For the reasons above stated, judgment will be in favor of the plaintiff for the items above specified with a total valuation of $1,075 subject to a credit in favor of the defendant in reconvention, of one-half of the 1950 taxes amounting to $119.52. With all costs of this suit to be paid 'by the defendant and judgment will be assigned accordingly.”

After a very careful review of the record, however, we are of the opinion that the respective claims of the plaintiff in the main demand arid plaintiff in the re-conventional demand should be amended. Insofar as the claim of the plaintiff on the mai-n demand, the plaintiff offered the testimony of Mr. Thompson, who sold farm equipment and his testimony was to this effect, that he considered the total value of the respective items as set forth in the plaintiff’s petition' and as enumerated hereinabove to be " approximately $1,015, but as a dealer of farm equipment, he would only allow.that value on a trade-in. T-hat being the case, we are of the opinion that the claim of the plaintiff, George A. Smith, and against the defendant, Jean N. Bell, should be reduced to the principle sum of $677.

As to the claim for the plaintiff in recOnvention, Jean N. Bell, and against George A. Smith, defendant in reconvention, we are of the opinion that his claim should be increased so as to allow the said Bell the sum of $119.52, for one-half of the taxes for the year of 1950, together with the sum of $75, to cover a cabinet type sink, which the said Smith removed from the house. We are of the opinion that this sink was an immovable by destination, by virtue of being attached to the water line and drainage system and that Smith had no right to remove it. We are further of the opinion that Bell is entitled to the additional sum of $250, to cover the truck body that Smith took off the truck and kept, or a total of $444.52, in favor of the said Bell and against the said Smith.

We concur with the lower court in the other claims of plaintiff in reconvention that he 'has failed to establish same by a preponderance of testimony and with legal •certainty and that the judgment appealed from should be affirmed and amended, by awarding judgment in favor of plaintiff, George A. Smith, and against defendant, Jean N. Bell, in the full sum of $677, together with legal interest thereon from date of judicial demand until paid and for one-half the costs of this suit of 'both courts, and by awarding judgment in favor of plaintiff in reconvention, Jean N. Bell, and against defendant in reconvention, George A. Smith, in the full sum of $444.-52, with legal interest thereon from date of judicial demand until paid, and for one-half the costs of this suit of both courts.

Judgment amended and affirmed. '

DORÉ, Judge

(dissenting in part and concurring in part).

On May 11, 1950 the plaintiff George A. Smith sold to Jean N. Bell and his wife Dorothy Ingraham Bell certain land, in the Parish of West Feliciana, known as Laurel Hill Plantation, together with the buildings, improvements, rights, ways, privileges and appurtenances thereunto belonging. • On July 9, 1951 plaintiff brought this suit against his vendee alleging that defendant had wrongfully converted certain farm equipment which by agreement had been left on the plantation pending removal. The defendant answered averring that no equipment belonging to plaintiff had been wrongfully converted; and in reconvention he set. forth a claim for damages against Smith for.various items of damage he allegedly sustained through, plaintiff’s faults. of commission and omission.

The sale of May 11, 1950 was a cash sale passed before a Notary and two witnesses for the price of $33,500, by which Smith transferred to Bell and his wife- “A certain piece or parcel of land or plantation, together with the buildings, and improvements thereon, and all the rights, ways, privileges and appurtenances thereunto belonging or in anywise appertaining (except as hereinafter reserved) situated in the Fourth Ward of the Parish of West Feliciana * * * ” being 869 acres of Laurel Hill Plantation. Immediately following the property description the deed stated as follows:

“There is excepted from this sale and reserved to the vendor the Gin House on the property conveyed, the vendee being hereby granted a period of Three Years from this date in which to remove the same, but with an additional Three Years at the yearly rental of One Hunderd Dollars, and if the - said Gin House is not removed at the end of said six year period, the same-shall revert to and become the property of the said vendee, his .heirs and assigns.
“It is stipulated and well understood that only one half of..the oil,.,gas and other minerals, produced or. which may be found in and under the land, conveyed, is included in this sale; and that the right to only, oner'half of all bonus payments and delay rentals under the terms of any oil, gas and mineral lease placed on said land, is included; the vendor, however, conveying all his rights in regard to said minerals, re-versionary and otherwise, and including the whole of the gravel in and under said land.”

Plaintiff alleged that certain farming implements and equipment on the plantation were not included in the sale but were to be removed by him later, and that in July or August, 1950 he discovered that some of the equipment he left on the premises was missing. He lists and values the allegedly missing equipment as follows:

Farmall H. 2 disc plow $350.00
Seven Foot mowing machine 250.00 Seven Foot tandum disc 200.00
Disc turning plow — mule drawn 50.00
All iron running gear farm wagon 50.00
Two inch steel line shaft 20 feet 40.00
2 inch by 6 inch tongue and groove creosoted silo material 200.00
Total $1,140.00

On the trial of the case plaintiff sought to introduce oral testimony to establish that the farming implements and equipment did not pass with the land, except for specially designated items, and that plaintiff and defendant had verbally agreed for plaintiff to store close to the gin house the implements and equipment that he intended to remove later. Defendant objected to the testimony on the ground that this was an effort to contradict and go beyond the terms of the written sale; but the court allowed the testimony to go into the record subject to the objections. Plaintiff also introduced in evidence a written memorandum called an “exchange agreement” which was dated April 24, 1950 and which stated:

“Agree to exchange in return for gin lumber, same to be removed within 3 years:
4 horses
mule farming equipment consisting of:
mower,
hay rake
•cultivator
middle ibuster
side harrow
harrow
hay bailer
combine
GMC 2-ton truck
% hay and other feed
hand tools as specified
hog
2 wagons
other miscellaneous equipment
exchange deep freezes plus $100, re-remainder of kitchen equipme'iit to be left except stove.
Credit of $150 towards furniture or cattle or chickens.”

Defendant introduced in evidence, among other things, a written contract dated April 24, 1950 by which .Smith agreed to sell and Bell agreed to buy Laurel Hill Plantation for $33,500 cash, which stipulated that half the minerals were to be reserved and the sale was to be consummated on or before May 15, 1950.

Plaintiff contended that the “exchange agreement” of April 24th and the oral testimony adduced showed that the sale passed on May 11th did not constitute the entire agreement between the parties; that these things did not contradict but only explained the sale; that the oral testimony taken was properly admitted in order to establish the full intent of the parties, and that their intent was for him to own everything removed by him before the sale and everything that was stored in and around the gin house at the time of the sale.

Defendant on the other hand contended that when the contract to1 buy was entered into on April 24th he was' not familiar with all the equipment on the plantation, but there were certain pieces he wanted to be sure to get; that it was understood that plaintiff would before the date of the sale remove the items which he, plaintiff, wanted to retain; that plaintiff wanted the gin house with the privilege of removing it within 3 years; that the “exchange agreement” was drawn up so defendant could be sure of getting the particular items mentioned therein; and that everything else remaining on the plantation on the date of the sale was to pass to him, defendant, with the land.

The sale of May 11th stated! that it covered the land and all appurtenances thereunto belonging or in any wise appertaining, except as thereinafter reserved. It is to be noted that the act of sale sets forth in considerable detail the reservations made with reference to- the gin house and the minerals^ Appurtenance is defined as that which belongs or relates to Something else as an accessory. Article 2461 of our LSA-C'ivil Code states:'

“The sale of a thing includes that of its accessories, and of whatever has been destined for its constant use, unless there be a reservation to the contrary.”

Other articles of the Code pertinent here as Article 468, 2275 and 2276, which state:

468. “Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
“Thus the following things are immovable by destination when, they have been placed by the owner for the service and improvement of a tract of land, to wit:
******
“Implements of husbandry.
******
: “Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works.
J*í * i¡? * *
“All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”
2275. “Every transfer of immovable property must be in writing; * *
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.”

There is no question but that the parol evidence introduced 'here went beyond and contradicted the written sale of May 11th, for the sale included the appurtenances while the 'evidence offered by plaintiff was purely for the purpose of showing that plaintiff considered certain appurtenances were not sold. The first question for decision then is whether the evidence adduced .should have Ibeen admitted.

In support of .-admission of the evidence the trial judge cites, approved by a majority of this .court, the following cases: New Orleans & Carrollton R. R. Co. v. Darms, 39 La.Ann. 766, 2 So. 230; Walker v. Ferchaud, 210 La. 283, 26 So.2d 746; Close v. Rowan, 171 La. 263, 130 So. 350; Brandin Slate Company v. Fornea, La. App., 183 So. 572. But none of these cases provide any authority for admission of plaintiff’s parol evidence. The Darms case did not deal with the sale of land but with the use to which a leased building could be put, i. e., whether lessee could operate a 'bar room in it. The parties were not concerned with testimony that contradicted anything in the written contract. In Walker v. Ferchaud the -court let in parol evidence to describe property that was not adequately described in the contract; it did not vary or alter the written contract. Again in Close v. Rowan the court let in parol evidence only to clarify an ambiguous description. In the Brandin Slate case parol evidence was admitted to prove a separate agreement by the vendor, through his agent, to -apply the slate roofing; this was not in any way a contradiction of the written contract to buy the materials.

I believe that plaintiff’s case does not come within any of the exceptions to the general rule against admission of parol evidence to vary or contradict the terms of a written sale of immovables. And without parol evidence plaintiff has no case. Furthermore, neither the act of sale nor the prior agreement of exchange is ambiguous; nevertheless, the written prior agreement to exchange became merged in the act of sale.

But even if consideration is given to all the evidence in the record, plaintiff still has not proved his case. Plaintiff and defendant contradicted one another on whether title passed or didn’t pass to- the equipment in question. Plaintiff produced only two other witnesses who could testify at all on this point. One was 'Herbert S. Thompson, a dealer in farm equipment, who, according to the testimony, was on the place once during potato planting season; and this, according to the testimony, was in April and approximately a month before the sale took place. He- then was not in position to know what agreement there was between the parties on May 11th. The other witness who testified on this point for plaintiff was C. J. Rodrigues, who helped plaintiff move.' The evidence indicates that he heard only one fragmentary conversation between Smith and Bell that had any relation to ownership of the equipment. His testimony is of little value and certainly not conclusive.

I,therefore, for these reasons, am of the opinion that the judgment in favor of plaintiff should' be reversed and plaintiff’s demand rejected and respectively dissent from that part of' the decree of this court awarding plaintiff a judgment in the sum of $677. However, I concur in the decree increasing the award in favor off'defendant, plaintiff in reconvention.  