
    Vincent CARACCI v. James S. CONNER.
    No. 778.
    Court of Appeal of Louisiana. Fourth Circuit.
    Sept. 4, 1962.
    Racivitch, Johnson, Wegmann & Mouledoux, Patrick J. Butler, New Orleans, for defendant-appellant.
    Pilie, Nelson & Limes, Joel L. Borrello, New Orleans, for plaintiff-appellee.
    Before LANDRY, RUSSELL and! HUMPHRIES, JJ.
   CLYDE C. RUSSELL, Judge.

Vincent Caracci, plaintiff-appellee, filed suit against James S. Conner, defendant-appellant, in the First City Court of New Orleans, praying for judgment in the amount of $600.00 plus 10% attorney’s, fees, legal interest and all costs, alleging same to be due under a written lease agreement by which plaintiff had leased to defendant the premises 4440 Elba Street in the city of New Orleans for a period of one year beginning July 1, 1960, at a rental of $200.00 per month. Plaintiff also alleged in his petition that the defendant had defaulted on the rental due for the months of August, September and October, 1960, after which time plaintiff had mitigated the damages caused by defendant’s alleged breach by re-leasing the premises.

Defendant answered admitting his execution of the lease from plaintiff. Defendant contends, however, that said lease was annulled through novation when plaintiff with the consent and approval of defendant subsequently leased the same premises to a Mrs. Patricia Robeson for the identical term covered in the lease herein sued upon. More precisely, defendant maintains that shortly after execution of the lease to him, he informed plaintiff that because of illness he was no longer able to operate the business for which the place was rented, namely, a restaurant and fish market, whereupon plaintiff leased the premises to Mrs. Robeson.

After a trial on the merits the lower Court without assigning written reasons rendered judgment in plaintiff’s favor as prayed for and defendant appealed.

Counsel for defendant-appellant has filed an exception of no right or cause of action in this Court, leveled at the fact that the lease form signed by defendant provided that the leased premises were to be used only for “seafood and restaurant” and the fact that the zoning law for that part of the city of New Orleans in which the leased premises were located provided that no “hard liquor” could be sold. Counsel argues that since plaintiff knew this and since it is necessary to have a liquor license in order to successfully operate a seafood place and .restaurant, the lease to defendant is null and void.

We find no merit in this argument, but suffice it to say that the proof of the ground of the exception does not appear in the record as required by LSA-C.C.P. Article 2163 and we thus cannot consider it.

ON THE MERITS:

Defendant admitted execution of the lease sued on and nonpayment of rent due for the months of August, September and October of 1960. Therefore, defendant may escape liability thereunder only in the event he establishes that plaintiff entered into a subsequent lease of the premises with defendant’s knowledge, consent and approval and further that plaintiff and defendant mutually discharged each other from all obligations under the lease herein sued upon. LSA-C.C. Articles 2189 and 2192. Vignie v. Gouaux, 14 La.Ann. 3-14.

An examination of the record convinces us that the defendant has failed to prove even that plaintiff entered into a second lease of the premises with Mrs. Patricia Robeson, as alleged in the answer. When shown a copy of what purported to be a lease by him to Mrs. Robeson, plaintiff denied that the signature “V. Caracci” thereon was his own. (Transcript of Court Testimony, p. 24) Plaintiff having formally denied the signature on the lease form, the defendant had the burden of proving same either by witnesses or comparison. LSA-C.C. Article 2245. Defendant produced no witness to plaintiff’s signature, nor did he offer any samples of plaintiff’s signature for comparison. In fact, except for defendant himself (who admitted he did not see the plaintiff sign the lease to Mrs. Robeson), the only other witness called by the defense was Joseph S. Zuppardo, a .real estate agent, who acted for plaintiff in negotiating the lease with defendant. Mr. Zuppardo testified that he did in fact type up a lease form identical to the one which had been signed previously by plaintiff and defendant, except that Patricia Robeson was shown thereon as lessee rather than the defendant. However, he stated that the reason he did so was because defendant asked for such a lease form in order to get a beer license in Mrs. Robeson’s name. He further testified that defendant came to his office and picked up the unsigned lease form and that he never saw either Mrs. Robeson or plaintiff sign it.

True, the trial judge did allow defendant to introduce in evidence the lease form showing Mrs. Robeson as lessee and plaintiff as lessor. However, the record is clear that the sole reason this document was allowed in evidence was to show that it had been signed by Mrs. Robeson, defendant having testified that he saw her sign same.

Therefore, being satisfied that the judgment of the lower Court is correct, it is affirmed at defendant-appellant’s cost.

Affirmed.  