
    Robert O. LANDRY v. Flora VILLERE et al.
    No. 7413.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Writ Granted Oct. 29, 1976.
    
      Lyman L. Jones, Jr., George L. Gillespie, Jr., Gillespie & Jones, Metairie, for plaintiff-appellee.
    Henican, James & Cleveland, C. Ellis Henican, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This appeal by the executor of the Succession of Mrs. Flora Villere questions the sufficiency of proof in support of plaintiff’s claim against the succession for a commission on the sale of a dragline. He attacks the judgment both on inconsistencies in plaintiff’s own testimony and on the failure of the evidence to comply with the requirements of LSA-R.S. 13:3721, 13:3722.

Plaintiff’s evidence consisted principally of his own testimony and that of his employee, Albert Butler.

Plaintiff testified: Mrs. Villere engaged plaintiff to remove broken down machinery from and generally to clean up certain bat-ture which she owned. Plaintiff’s workers cut and removed steel which they sold for scrap as payment for their services. Also located on the batture was the dragline which had not been used for two years. She had been offered $12,000.00, but he advised that a better price could be obtained if the machine were repaired and placed in working order. She employed him to repair the machinery and to sell it with a commission to him on the sale. After discussing the sale and commission on several occasions, they went together to a dealer of such equipment where they were advised that 10% was a fair commission. After repairing the machine, he came in contact with someone who was looking for a drag-line, and he demonstrated the machine. Plaintiff quoted a price of $16,000.00 and was offered $15,000.00. When he informed Mrs. Villere, she wanted to sell at that price. Plaintiff received a $15,000.00 check payable to Mrs. Villere from the purchaser and helped load the equipment on the purchaser’s truck. Mrs. Villere deposited the check on March 1, 1974, and paid his itemized bill, also dated March 1, for the costs for moving and repairing the dragline with a check on the account of the corporation which owned the dragline. Mrs. Villere then left to go out of state, promising to send him a check for the commission. Plaintiff’s March 1 bill made no mention of any commission and on March 26, as soon as plaintiff learned of Mrs. Villere’s death, he sent a Bill for the commission to the attorney for her succession.

Butler testified: On several occasions during January, 1974, he heard Mrs. Vill-ere offer to pay plaintiff a commission if he obtained a sale for the dragline. Later in January he drove plaintiff and Mrs. Villere to a dealer to determine the proper amount of commission when Mrs. Villere stated she would pay plaintiff a 10% commission if he obtained a sale. After that trip he never saw Mrs. Villere again.

The executor makes much of various inconsistencies with reference to the date of the alleged agreement between him and decedent in plaintiff’s testimony at trial, the allegations of his petition, his answers to written interrogatories and his testimony at his deposition taken a year before trial. Regardless of what importance we might attach to these inconsistencies the trial judge was apparently unimpressed. He concluded that the fact plaintiff couldn’t remember the date of the “agreement” and referred to an obviously wrong date in pleadings and discovery was ultimately of little significance and he found that Butler was “utterly honest and clear in his recollection” of Mrs. Villere’s offer. For our purposes we accept the trial judge’s findings but conclude that his judgment must be reversed as a matter of law.

Mrs. Villere’s liability, if any, was based on a contract which came about in two steps: 1) an offer by her to pay a sales commission, and 2) acceptance by plaintiff when he obtained a sale at a price acceptable to her. Plaintiff thus had the burden to prove both her offer of a commission for the service and his acceptance by performance of the requested service.

Applicable to this case are the proof requirements of LSA-R.S. 13:3721, and 13:3722. § 3721 provides the circumstances under which parol evidence is admissible to prove the debt or liability of a deceased person. Concededly, parol evidence was admissible in the present case. However, § 3722 provides:

“When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”

Because of these requirements, it was necessary for plaintiff to prove both elements, to wit, the offer and the acceptance which gave rise to Mrs. Villere’s liability, by the testimony of at least one “creditable” witness, other than himself, and other corroborating circumstances. As to the first element, Butler’s testimony satisfied the statute as to testimonial proof of the offer, and the moving, repair and sales of the dragline constituted corroborating circumstances.

However, Butler’s testimony supplied no direct proof of plaintiff’s connection with sale of the dragline. His testimony only established that plaintiff secured the labor and parts to repair the dragline (for which a bill was presented and paid), that the purchaser and his mechanic stayed for some time at the motel which plaintiff owned, that he (Butler) took the purchaser several times to see the machine, and that he was with them on the day the purchaser bought the machine and loaded it.

Butler’s testimony did not establish that plaintiff secured the purchaser or had anything to do with the sale. Neither the purchaser, his agent, nor the mechanic were offered as witnesses. Plaintiff’s only other witness as to pre-sale events testified only about moving the dragline from the batture across the levee. Therefore, the only testimony directly connecting plaintiff with the sale was the testimony of plaintiff himself.

Inasmuch as an essential element of Mrs. Villere’s liability (that plaintiff accepted her offer by performing the requested service) was not “proved by the testimony of at least one creditable witness other than the claimant,” we conclude the proof was insufficient to comply with the statute.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendant, Francis C. Doyle, Dative Testamentary Excecutor of the Succession of Flora Mary, widow of Walter P. Villere, Sr., and against plaintiff, Robert O. Landry, dismissing his suit at his cost.

REVERSED AND RENDERED

REDMANN, J., concurs with written reasons.

LEMMON, J., dissents with written reasons.

REDMANN, Judge

(concurring).

Plaintiff charged decedent $500 (including $100 “insurance” and $25 “permit”) for moving the dragline across the levee, $125 for labor to clean and grease it (she paid separately for the grease), $100 to paint it, and $555 for labor alone to change its oil and install two filters, four bolt kits, a battery, a seat, three “glasses” (“front and two sides”) and a barrel and cable. Moreover, despite plaintiff’s contrary testimony, his motel “maintenance man” testified that the labor (which plaintiff’s bill showed as by two “machine men, 37 hrs. each, $7.50 per hour”) was done by the maintenance man and plaintiff’s son. Those charges plus $708.75 for the parts recited above (no others) totalled $1,988.75, which was the total of plaintiff’s typewritten bill.

At the time plaintiff turned over to decedent the $15,000 check paying for the bulldozer she paid plaintiff that itemized bill for $1,988.78. That was the time for plaintiff to have been additionally paid the claimed $1,500 commission if it were agreed on and due. In fact, an additional $100, rather than $1,500, was then paid: to the $1,988.75 typewritten total was added a handwritten $100, making a handwritten total of $2,088.75, which decedent paid.

The probable explanation of that extra $100 is that that was the only “commission” decedent was willing to pay in -addition to an apparently inflated bill for moving and repair. Perhaps decedent had earlier understood she would pay 10% for the indispensable moving, cleaning and fixing as well as sale efforts. She finally paid 14%, and plaintiff would have her pay 24%.

I conclude that, irrespective of whether plaintiff’s efforts “sold” the dragline, he is not entitled to anything more than he got from decedent.

LEMMON, Judge

(dissenting).

Since the proof did not comply with R.S. 13:3722, the judgment must be reversed.

Nevertheless, I vote for a remand under the particular circumstances of this case in which the evidence (found credible by the trial judge) would have been sufficient to support the'judgment, except for the technical requirements of the statute.

This type of case should normally be won or lost in the trial court, and the trial judge commented at the start as to the discerning manner in which he intended to weigh evidence which the deceased person could not contradict. Since plaintiff concentrated his trial efforts on proving Mrs. Villere’s offer, which was the more difficult element to prove, the primary dispute as to the existence and date of the “agreement” subverted the offer and acceptance elements of the proof. Since the circumstances of this case raise strong inferences that plaintiff was responsible for consummating the sale, it appears probable that the litigant will sustain an injustice unless afforded further opportunity to furnish the obviously available proof of his connection with the sale.

For example, a compelling inference as to plaintiff’s connection with the sale is raised by the circumstance that his employee, Butler, while apparently on duty, drove the purchaser and his mechanic on several occasions from plaintiff’s motel, where “they lived for some time”, to examine the dragline and was there when they bought and loaded it. This circumstance alone would be sufficiently corroborative of plaintiff’s testimony, but for the more stringent proof requirements of R.S. 13:3722.

In Succession of Dugas, 215 La. 13, 39 So.2d 750 (1949) the claimant failed to prove her claim precisely as required by the dead man’s statute, although the proof was apparently available at the time of trial. However, the Supreme Court, convinced by the evidence of the validity of the claim, remanded the case in the interest of justice to allow an opportunity to supplement the deficiency.

The purpose of the dead man’s statute is to set a higher minimum proof than the circumstantially corroborated testimony of the claimant alone in cases where the claimant’s testimony cannot be denied because the alleged debtor is deceased. Many valid claims are thereby made unenforceable when the debtor dies, if the survivor has no witnesses or written evidence as to the debt or liability. Thus, while protecting the heirs of the deceased person from invalid claims, the statute with its higher standard of proof sometimes causes injustice to the survivor.

In the present case, where the evidence fulfills the usual burden of proof, but is deficient only because of the higher requirement of the statute, a remand will possibly prevent an injustice. On the other hand, a remand does not insure that plaintiff will prevail. Plaintiff must still supply the required proof, and with his version of the facts of the sale already in the record, the executrix can offer rebuttal proof that plaintiff was not responsible for consummating the sale.

Finally, Judge Redmann’s perceptive analysis in his concurring opinion of plaintiff’s itemized bill suggests that plaintiff was in fact adequately compensated for his total services. Indeed, the strongest circumstantial evidence against plaintiff’s claim is the fact that he did not ask for or receive a 10% commission when Mrs. Vill-ere deposited the purchaser’s check and paid plaintiff’s bill. Nevertheless, neither party went into an analysis of this bill when presenting evidence at trial, and on remand plaintiff could be confronted with the questions raised by Judge Redmann’s analysis, after which the trial judge can reconsider all evidence. My primary objection is the denial of a remand based on a relatively insignificant technical deficiency. 
      
      . The named defendant resigned her position as administratrix shortly before trial and the newly appointed dative testamentary executor was substituted as defendant at the trial.
     
      
      .Interestingly, had the dragline been sold for $12,000.00 Mrs. Villere would have been better off than she would be under plaintiff’s version. She paid plaintiff $2088.75 to repair and remove the dragline, and according to plaintiff would owe a commission of $1500.00, leaving her a net of under $11,500.-00.
     
      
      . Although a corporation owned the dragline, the trial court found that Mrs. Villere had not disclosed her representative status and held her personally liable.
     
      
      . It is well to note here that plaintiff was 83 years of age at the time of the trial.
     
      
      . Butler’s complete testimony as to the sale was:
      “Q. Now, did you ever see Ralph Louis and a mechanic come out to look at this machine?
      “A. Yes, sir. That was the fellows that bought it. They lived at the motel quite some time. Matter of fact, I carried them over to it to show them to it and from that time on they would make trips back and forward to this place and the day they bought the machine and loaded it, I was with them that day also.”
     
      
      . Dead Man’s Statutes originated as a rule of incompetency of witnesses that disqualified parties and interested persons from testifying as to transactions with a party who subsequently died. For a history and criticism of these statutes, see McCormick, Law of Evidence § 65 (2d ed. 1972). The Louisiana statute does not disqualify the party’s testimony, but rather requires additional testimony as minimum proof.
     