
    No. 8453
    COURT OF APPEAL PARISH OF ORLEANS
    WINFIELD GAUCHE versus GEORGE K. FORCE.
   Dinkelspiel; J.

Plaintiff institutes this suit against the defendant alleging that on July 8th, 1931, defendant rented from plaintiff by verbal lease, the premises known as apartment No. 3 of the Prytanis Apartments, at' the rate of One Hundred and Twenty Five Dollars per month, payable in advance, for two months, beginning August 1st, 1921, and that notwithstanding amicable demand that rent for the two months had not been paid; prayed for judgment for the sn* of Two Hundred and. Fifty Dollars with legal interest from judióla! demand until paid.

It is admitted that there was an error in the petition and that the amount due the plaintiff was $300.00 instead of $260.00 as claimed by him in his petition.

The answer after pleading, the general issue admits that there was a verbal dlsousslon as to the leasing o of the premises named, hut avers that the lease was conditioned on plaintiff's securing the consent of hie prior lessee and when such oonsent was had the lease was to be «reduced to writing and signed, and no written contract having been presented defendant denies that any contract of lease was entered into either verbally or in writing, henee prays for dismissal of this suit and for judgment in hie favor.

The evidence of plaintiff is positive. Quoting from his testimony: "I had advertised the apartment for rent as the people who were occupying it were to leave for Texas, they and ¡Í asked me to advertise it for rent. Sr. Foroe answered the advertisement and visited the apartment, the janitor showed him the apartment;the next day his wife visited the apartment and.' she left, telling the janitor she would phone to me her answer the next day; on the third day she and said she would take the apartment.* ■

He testifies substantially that prior to this he had rented the place to Hr. Joeey for the sum of 0ns Hundred and Twenty Five Dollars a month; that Josey had left the apartment and permitted plaintiff to advertise the apartment for rent, subsequently paying to the landlord, the difference, twenty five dollars, between the amount of his oontraot of lease and the amount defendant was to pay, in other words he was to receive one hundred dollars a. month from the defendant, the former tenant having paid him the difference; he psoitively states in his testimony that haxxxxxic there was to be no written lease and that the wife of the defendant accepted the premises after visiting it with her husband and notified the Janitor and the maid they that they were perfectly satisfied with the apartment and would take same as agreed on, on the first of August.

The janitor, Scott Simmons testifies that defendant and his wife called at the apartment and both liked it; subsequently the wife who had the entire say in this transaction visited the apartment, was delighted with it and asked this witness whether or not he could have the apartment ready for use on the first of August; on his affirmative assurance of that fact he swears that the apartment was rented, to the defendant; he further says in his testimony that the apartment was ready on the day stated, that he notified plaintiff of this fact and the defendant not occupying it at the time specified he again notified plaintiff of that fact.

The witness, Elizabeth Mason, who is the housekeeper for plaintiff substantially testifies that she got this apartment ready as requested by defendant's wife, on the first day of August, just as the lady had requested her to- do and that defendants, who from her testimony were delighted with the apartment did not come to occupy same at the time stated.

This substantially is the testimony of plaintiff.

The testimony of defendant and his wife acknowledge that they visited the apartment in question, perfectly satisfied with them end defendant referred plaintiff to his wife, transaction who had entire charge of th e (yfewrté**** so far as he was concerned.

The testimony of 'Mrs. Force:

Q. What-did Mr. Gauche ask when he ’phoned at the house?
A. He said he had talked with Mr. Force and wanted to know if we wanted the apartment, and Mr. Foroe told him that we would take it if it was all right to me.
Q. What did you say?
A, I told him all right.
Q. What did Mr. Gauche eay in reply to that?
A. He said he would bring the oontraot. to the office for Mr. Foroe to sign.

Testifying further in referenoe to the prior lease, she ixjck testifies that plaintiff said that he had talked or communicated with the man that had leased the apartment and that he said that the man did not know anything about it, referred him that he had/rented to his wife.

Subsequently in her testimony after the conversation with plaintiff through the phone and after August 1st, plaintiff oalled up wanting to know-whether defendant would take the apartment or not and she answered that they had XKXtsat written him a letter, and he said that he had net'received any letter.

Q. Would you have taken the apartment had Mr. Gauche produced his contract for signature as he promised to do and advised you he had the consent of the present tenant?
A. Yes sir.
Q. What happened, Mrs. Force, on your visit to the premises about the rhird day okxjc after you and Mr. Force had first gone there? kraut I understood you to say you went to tim see the apartmeht.
A. I did.
Q. Who was present that day?
A. Mr. Gauche, the janitor and the housekeeper.
Q. Did you like the apartment?
A, Tee air.
Q, Did you make any statement to the janitor, Mr. Gauche or to anyone about being ready to move in the ppartment?
A. Ta No sir.
Q. None at all?
A. No sir, I had already told Mr. Gauche over the phone that we were going to take the apartment.

The question presented for our decision is whether or not there was a verbal oontraot of lease for the premises in question, for the months of August and September 1931, at the rate of One Hundred Dollars per month, or whether there was to be a written lease, and further whether or not plaintiff had the oonsent of his prior tenant to let these premises . The matters are all questions of fact and from the testimony of plaintiff and the defendant we are convinced that the oontraot in question to lease the premises for the months stated at the prioe stated, was aooepted by the defendant's wife, under the authority given her by the defendant. We are satisfied further from reading this reoord that there was no intention for having a written lease for these two months; it may have been defendant's idea, but the testimony convinces us that they were in error in this particular respeot. In addition to this there is a further reason in our opinion why plaintiff's position must be horreot,beoause he had a tenant who was paying him at the rate of One Hundred and Twenty Five Dollars a month and who had left the premises, giving the plaintiff in this case the right to zmX re-lease as best hé oould for the months of August and September. Doubtless on this request he advertised this property for rent, defendant and his wife in answer doubtless to the advertisement in question called on plaintiff, visited the apartment, were both satisfied with it and were to have occupied it and gave orders to the janitor and the maid to have it ready on the first of August; we are satisfied that the minds of ell parties° interwt^^ on this verbal contract, and plaintiff having received from his the difference former tenant/in full settlement under the lease which still had two months or so to run, and believing that the defendants would occupy the apartment at the time stated, gave up his former tenant and his contract of lease and rented to the defendants, the apartment in question at the prioe stated.

Oivil Code Art. 1811 provides: That Contraots and acceptance thereof either may be expressed or implied; implied when it is manifested by aotions, even by silenoe or by inaction, in oases in which they can from olroumstanoee be supposed to mean, or by legal presumption are directed to be considered as evidenoe of an assent.

For the reasons assigned, it is ordered, adjudged and deoreedl that the judgment of the Court aquo be and the seme is hereby affirmed, defendant to pay oosts of both Courts.

-Judgment affirmed-  