
    GABRIEL H. FUSELIER VS J. HENRY BLACHE
    NO. 8976
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
    MARCH 5, 1923.
    
      
    
   By WILLIAM A. BELL, Judge

Plaintiff has sued defendant herein for his share of certain commissions involved in the sale of certain real estate, it being claimed that the right to said commissions arose from a certain written oontraot reading,in part,as follows:

"August 5, 1921.
"That the said Mr. J. Hy. Blaohe, as real estate broker, agrees to employ the services as salesman, of Mr. Gabriel H. Fuselier, with the mutual understanding that on all business created and effected by the said Mr. Fuselier; that is to say, that on any contracts to buy or sell or lease secured by the said Mr. Fuselier which results in business being effected by said Mr. Blaohe, or on any contracts to sell, buy" or lease secured by the office of said Mr. Blaohe on which the said Mr. Fuselier effeots business, the said Fuselier is to receive half of the commission received by Mr: Blache on said business. * * *
"(Original signed) J. Hy.. Blaohe
" " Gabriel H. Fuselier."

The above is, in substance, a copy of the aforesaid oontraot made part of plaintiff's petition. It is alleged in his petition that on April 21, 1920, long prior to the making of the said oontraot, plaintiff received an offer, in writing, from the owner of oer-tain lotB known as the "Woodville Traot Ho. 2," on Gentilly Hoad, in the City of New Orleans; that on Sept. 7, 1921. some thirty days after the signing of the oontraot between the parties to this suit, plaintiff wrote the owner of the Woodville Tract again making inquiries concerning the lots' and asking if same were for sale; that three days later, on September 10. 1921, the owner of the lots having replied to plaintiff's letter of inquiry, was advised by plaintiff over .the telephone to get in touch with the defendant in this suit and the address of said defendant was given-him, and that as a result of placing the owner of said lots in touch with the defendant, an ultimate sale of said lotB was made by the defendant to a third party, the defendant realizing from said sale the sum of $341.25. These are, in substance, the facts of the case which are necessary to he here noted so far as the plaintiff's petition is concerned. The petition concludes with a prayey that under the terms of the aforesaid contract plaintiff he declared entitled to one-half of the total commission of $341.25 realized hy defendant, that is, the sum of $170.63, for which Judgment is prayed.

Defendant has answered this suit, first pleading an exception of no cause of action, which has not been seriously urged and which was overruled hy the trial court, and then, specially answering, urges that tho written oontraot, which is admitted, and the subsequent sale, which is admitted, could not in any manner have made defendant liable to plaintiff for half of the commissions for the reason that it was specifically agreed between the parties to this suit that commissions would only he due upon such otntraota as plaintiff may have procured and had signed between the parties to the sale, that is, the commissions were to he earned on actual sales made hy plaintiff on "signed contracts" or "signed listings."

There was judgment in the liver court in favor of plaintiff, from which defendant has appealed.

From the pleadings in this suit we gather there is only one defense seriously urged to plaintiff's olaim and that is that outside of the written oontraot there was the agreement qualifying it as above set forth. At the trial of the oause the testimony on this suhjeot was properly objected to, and the record shows that when the objection was made to said testimony concerning "signed contracts" as a condition to the earning by plaintiff of his commission, counsel for defendant made the specific statement after the objection was interposed^that defendant did not oare to press the question. However, later on in the testimony we find the question again ashed of the plaintiff, who positively denies that there was any such agreement. In any event, the verbal testimony that was sought to he adduced on this subject was wholly inadmissable under the aoademio rules of evidenoe and oould not be considered by the court beoause of its tendency to wholly vary, alter and oontradiot the written contract originally entered into between the parties. We find conclusively that the only time the defendant met the owner of the "Woodvllle Tract" was after said owner had been sent to him by the plaintiff. The testimony of the owner himself is to this effect, and we find that said owner though subpoenaed by the plaintiff, was placed upon the stand for direct examination by the defendant, and when asked to narrate how he became acquainted with the defendant, stated that the plaintiff, who had failed to keep several engagements with him concerning the ownership of the "Woodvllle Tract," finally told him over the telephone to call up the defendant and get in touch with him. On oross-examination by counsel for plaintiff this same witness was asked the all-important questions as follows:

"ft.-When you saw Mr. Blache you introduced yourself to him, did you not?
"A.-Yes, sir.
"ft.-Did you know him at that time?
"A.-Wo, sir.
"ft.-Did you tell him who referred you to him?
"A.-Yes, sir.
"ft. — Who was that?
"A.-Mr. Yuselier.'
"ft.-That was before you had any dealings at all with Mr. Blache that you told him that?
"A.-Yes, sir."

After careful oonsideration of the reoord in this case, of the letters and correspondence made part hereof, we are oon-vinoed that the transaction under whioh the defendant earned the commissions, half of whioh plaintiff now sues for, arose entirely through the fact that the plaintiff and he only brought the owner of the property, whioh defendant sold, into business communication with the defendant, and the defendant never knew of the party until said party phoned him at the request or instructions of plaintiff. Applying these facts to the oantraot whioh Roth parties admit to hays existed between them and interpreting the oontraot as a binding ene not to he qualified in any respeot by verbal testimony, we are of the opinion that the judgment of the trial oourt is oorreot and should be affirmed.

II 13, THEREFORE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same is hereby affirmed at the defendant's costs in both courts.

JUDGMENT AFFIRMED.

MARCH 5, 1923.  