
    HOOD MOTOR CO., Inc., Plaintiff-Appellee, v. Jeff EASLEY, Defendant-Appellant. AMITE FINANCE CO., Plaintiff-Appellee, v. Jeff EASLEY, Defendant-Appellant.
    No. 6125.
    Court of Appeal of Louisiana. First Circuit.
    June 1, 1964.
    Rehearing Denied July 1, 1964.
    Watts & Crain, by Hillary J. Crain, Franklinton, for defendant-appellant.
    Schilling & Simpson, by Joseph H. Simpson, Amite, for plaintiffs-appellees.
    Before ELLIS, LOTTINGER, HER-GET, LANDRY and REID, JJ.
   ELLIS, Judge.

Amite Finance Company filed suit against Jeff Easley alleging it is the owner and holder for valuable consideration of a note dated June 18, 1957 in the amount of $3,-750.00 signed by Easley, made payable to R. P. Watkins and by said Watkins endorsed under act of notarial transfer under date of April 2, 1963 to the Amite Finance Company, alleging that said note called for ten payments of $125.00 each, skip two months, ten payments more at $125.00 per month, skip two months, and ten payments of $125.00 each. This note stipulated if any installment was past due the entire obligation matured, and reasonable attorney fees would be due if placed in the hands of an attorney for collection. It further alleged the defendant’s failure to pay the installments when due matured the entire amount of $2961.20, and that, said note being secured by a mortgage on a 1957 Chevrolet and one 21 foot Ward body, it was entitled to and so prayed for the issuance of a sequestration, which was ordered.

The defendant answered and pled payment by specifically alleging that on December 19, 1962 he had sold the truck sequestered to one Delma Populis for $5000.00, and the purchase price of the truck was financed by the plaintiff company which paid the balance of the note described in Article 2 of the plaintiff’s petition, and also another debt defendant owed the plaintiff, and the latter issued its check to the defendant for the difference between the indebtedness owed to plaintiff and $5000.00, the consideration of the sale, which difference was $1,954.38. Wherefore, the defendant prayed for judgment rejecting the demands of the plaintiff at its cost.

A separate suit, which somehow became consolidated with the finance company suit, was brought by Hood Motor Company, Inc., against Jeff Easley, same defendant, in which it alleged the latter to be indebted unto it in the sum of $2100.00 for goods and merchandise sold to him, as more fully shown by an itemized statement annexed to the petition. This statement of account consisted of an affidavit executed by A. E. Hood, Jr., Secretary Treasurer of Hood Motor Company, Inc., setting forth the defendant was indebted to the plaintiff in the amount of $2100.00, which consisted of a check given the defendant in December of 1962 in the amount of $1954.38, and $145.62 due on open account for goods and merchandise purchased during 1962 for gas, oil, repairs, etc.

Again defendant answered the suit by specifically alleging “that any and all debts which defendant, Jeff Easley, might have owed to petitioner, Hood Motor Company, Inc., were paid on or about December 19, 1962, including the account herein sued upon.”

After trial there was judgment by the lower court in favor of the Amite Finance Company and against the defendant on the note in the full amount alleged and prayed for, with legal interest from date of judicial demand, attorney’s fees in the amount of 25% of the aggregate of principal and interest and all costs of these proceedings. Judgment was further rendered in favor of Hood Motor Company, Inc. in its suit against Jeff Easley in the full sum sued for of $2100.00 together with legal interest from date of judicial demand until paid and all costs of these proceedings.

The defendant has appealed devolutively from each judgment to this court.

The defendant, having pled payment in each suit, bears the burden of proving it by competent evidence. He contends he has done this by proving a sale of the bus for $5000.00 to Populis, which was recognized as a sale and financed by the Amite Finance Company and which had been evidenced by the signing of a new note and mortgage by Populis to the Amite Finance Company, and further, by the fact that Hood Motor Company, Inc., had given Eas-ley a check for $1954.38 which represented the difference between the amount which Easley owed on tire note plus $145.62 owed on an open account and the $5000.00 for which he was selling the bus to Populis.

On the other hand, the plaintiff in each case contends that although Easley and Populis had agreed upon the terms of the sale of the bus for $5000.00, the completion of .the sale, was contingent and dependent upon Populis securing the bus route which Easley was giving up by retirement effective approximately January 1st or 4th of 1963.

Easley testified by way of deposition which is in the record that when he contemplated obtaining a position as bus driver he purchased a 1941 bus for about “$2200.00 or $2300.00” although it was only worth about $700.00. His reason for giving three times more for the bus than it was worth is best explained by some of his testimony which is as follows:

“Q. Is it a common practice when school busses are sold that the route is sold along with it?
“A. The route goes with it, yet, sir, and when I got it, that is the way I got it. I bought it.
“Q. You paid extra for it?
“A. Yes, I bought an old ’41 Ford.
“Q. And you bought the bus and the route ?
“A. Yes, sir. That is exactly right. . Got the route with it, just the way it was sold to me, that’s the way I done.
“Q. You sold the bus and the route?
“A. I sold him the truck with that intention because the man told me he had the job.
“Q. Part of the consideration for the bus was that he got the route ?
“A. Yeah. If it hadn't been I would still have the truck.”

On the trial of the case Easley denied it was customary for a bus driver voluntarily or involuntarily retiring to sell his bus for .much more than it was worth because the purchaser was also going to secure the route.

The record reveals that in the present case in November 1962 Mrs. Mixon, who was at that time the school board member from the Fifth Ward, began receiving complaints from the parents of the children riding the school bus that Easley’s young son was driving the bus, and also that the defendant had used profanity in the presence of the children. She saw Mr. Dewitt Sauls, Supervisor of Tangipahoa Transportation and Supervisor of Negro Schools, and told him she was going to bring charges against the defendant because of such complaints, and Mr. Sauls said “Hold off awhile and let me see if I can get his retirement worked out.” Mr. Sauls confirmed Mrs. Mixon’s testimony. He also testified he wrote the defendant a letter and had him come to his office and discuss the matter with him and told the defendant Mrs. Mixon was planning to bring some charges against him, and under the circumstances he believed it would be best for him to try to get disability retirement as the defendant was sick, and he would try to get such retirement “through for him.” The retirement officials of the State Board require an application for disability retirement within thirty to sixty days before it goes into effect, and in this case it was necessary that there be no delay as Mr. Sauls wished to get such retirement effective January 1st, 1963. It was only natural the defendant should wish to sell the old bus which he had absolutely no use for, and he soon found Delma Populis would buy the bus provided he could get the position and route which the defendant was relinquishing. In order to do this the defendant and Populis went to see the newly elected school board member in the Fifth Ward, Mr. Smith, who told them he had not taken office yet and it would be satisfactory to him but in effect it would be within the province of the School Board of Tangipahoa Parish. After seeing Mr. Smith, the defendant and Populis went to see Mr. A. E. Hood, Jr., one of the owners and officers of Amite Finance Company as well as Hood Motor Company, Inc., and he told them the sale and refinancing for Populis would be satisfactory provided Populis secured the position as school bus driver and the school bus route from which the defendant was retiring. The defendant and Populis stated to Hood Populis had been approved for the route by the newly elected member of the School Board for the Fifth Ward but that it had to be approved by the School Board at its next meeting, and it was necessary for the transfer to be made prior to January 1, 1963 upon Mr. Dewitt Sauls instructions. Also it is shown by the record the defendant owed the Credit Union and had been notified if a transfer of the bus was to be made it would be necessary for him to pay the Credit Union prior to such transfer. Accordingly, on December 19, 1962 the defendant and Populis executed what is shown in the record as an “Affidavit of Donation or Isolated (Occasional) Sale” of the 1957 Chevrolet school bus for $6660.00 which was made up of $5000.00 plus $1660.00 refinancing charges. This document was not notarized although the form has a place for a notary public to sign. Also executed was “Application for Certificate of Title and Truck Registration” by Delma Populis showing the vehicle subject to chattel mortgage by Hood Motor Company, Inc., which is not notarized nor complete. Also executed is a “Transfer of Equity” on the 19th day of December, 1962 by Jeff Easley in and to the school bus to Delma Populis in consideration of $6660.00. This was signed by both Easley and Populis but not signed by Amite Finance Company nor Hood Motor Company, Inc., although the document contains a paragraph headed “Consent of Amite Finance Company” and beneath that “Approval of the Original Seller” and written in the blank is “Hood Motor Company, Inc.” None of these documents are complete and in no place did Amite Finance Company or Hood Motor Company, Inc., sign, although the forms clearly contemplated the participation of each in the transaction. These documents were placed in the safe of Hood Motor Company to be completed, according to the preponderance of the testimony which was given by Hood and Populis, upon approval by the School Board at its January meeting of Populis to the position of bus operator for the route which the defendant was relinquishing. When the School Board met they did not give the position to Populis but to one Mark Lanier.

The plaintiffs have also offered the testimony of an expert that the Easley bus, for which he was receiving $5000.00, was actually worth about $600.00 or $700.00. Much is made of the fact that the Hood Motor Company, Inc., gave the defendant a check for the difference between $5000.00 and the amount which he owed of $1954.38. This was done because of the Credit Union demand that its indebtedness be paid and, as frankly testified to by A. E. Hood, Jr., he had done business with the defendant for many years and had confidence in him.

Additionally it was shown Populis drove this school bus from the 6th of November, 1962 until the 4th of January, 1963 for the defendant, who received pay from the Tangipahoa Parish School Board for that period.

From the record we have not the least doubt but that the transaction involved in these two cases between the Amite Finance Company, the Hood Motor Company, Inc., Jeff Easley, the defendant, and Delma Populis was absolutely and without a doubt contingent upon the latter securing the position as a school bus driver and the route which defendant Easley was relinquishing by retirement in January, 1963.

Counsel for the defendant argues this court has no right to annul the sale between the latter and Populis. It is true Populis is not actually made a party to this suit but he has sworn at length and definitely and positively in this case, and in order to decide the matter between the parties to the two suits it is necessary for this court to pass on the question of whether there was an actual completed sale. We have held there was not and one was never intended unless and until the School Board of Tangipahoa Parish had employed Populis as a school bus driver and awarded him a route. It would be ridiculous for anyone to give $5000.00 for an old worn out school bus which was worth six or seven hundred dollars unless he was going to obtain the stable position as a driver for the Tangipahoa Parish School Board.

The agreement between Populis and Easley, and the Amite Finance Company and Hood Motor Company, Inc., was not to be effective and completed unless and until Populis was employed by the Tangi-pahoa Parish School Board as a bus operator on or subsequent to the effective date of Easley’s retirement from such position. This never happened and Easley was well aware of the legal effect of such a failure in the condition precedent to the effect that he would still be liable and responsible for the obligations which were to be taken over by Populis with the consent of Amite Finance Company and Hood Motor Company, Inc., had Populis secured the position.

There is no proof of the reasonableness of the attorney fees and while such fees may be fixed by the Court without express testimony, we believe 15% would be equitable and proper in this case.

It is therefore ordered that the judgment of the District Court in favor of Amite Finance Company be amended 'by reducing the attorney fees in that case to 15%, and in all other respects said judgment to be affirmed.

For the above and foregoing reasons we are of the opinion that the judgment in favor of Hood Motor Company rendered by the District Court is correct and it is hereby affirmed.

Amended and affirmed.

HERGET, Judge

(dissenting).

Amite Finance Company instituted suit against Jeff Easley alleging it was the owner and holder for a valuable consideration of a note dated June 18, 1957 in the amount of $3,750 signed by Defendant made payable to R. P. Watkins and by R. P. Watkins endorsed by an act of notarial transfer dated April 2, 1963 to Amite Finance Company; said note calling for 10 payments of $125 each, skip 2 months, 10 payments more at $125 per month, skip two months, and 10 payments of $125 each, said note stipulating that if any installment is past due, the entire obligation is matured, and calling for reasonable attorney fees if placed in the hands of an attorney for collection.

It further alleged that Defendant’s failure to pay the installments when due made the entire amount of $2,961.20 due and to secure the payment of said note, Defendant mortgaged a 1957 Chevrolet and one 21-foot Ward body, giving the motor and serial number and prayed for the issuance of a writ of sequestration, which was ordered.

Defendant answered, generally denying the allegations of Plaintiff’s petition, and, further answering, alleged that on December 19, 1962 Defendant sold the truck sequestered to one Delma Populis for $5,000 and the purchase price of the truck was financed by Amite Finance Company, Plaintiff herein, which paid the balance of the note described in Article 2 of said Plaintiff’s petition and also any other debt which Defendant owed to Plaintiff and its check issued to Defendant for the difference between the indebtedness owed to Plaintiff and $5,000, the consideration of the sale, which was $1,954.38. Defendant further alleging, the debt had been paid in full, the truck sequestered in the proceeding no longer being the property of Defendant to the knowledge of Plaintiff, prayed for judgment rejecting the demands of Plaintiff at its costs.

In a separate suit brought by Hood Motor Company, Incorporated v. Jeff Easley, Plaintiff alleged Defendant to be indebted unto it in the sum of $2100 for goods and merchandise sold to Defendant, as more fully shown by reference to an itemized statement annexed to the petition. The alleged itemized statement of account consisted of an affidavit executed by A. E. Hood, Jr., Secretary-Treasurer of Hood Motor Company, Incorporated, who deposed and said Jeff Easley was indebted unto Hood Motor Company, Incorporated in the amount of $2100, consisting of a $1,954.38 check given Jeff Easley in December, 1962 and $145.62 on open account for goods and merchandise purchased during 1962 on a running open account for gas, oil, repairs, et cetera to various vehicles owned by Jeff Easley.

Defendant answered this suit denying generally the allegations of Plaintiff’s petition, and, further answering, alleged Defendant would show any and all debts owed by Jeff Easley to Hood Motor Company, Inc. were paid on or about December 19, 1962, including the account here sued upon, and prayed for judgment rejecting Plaintiff’s demands at its costs.

There is in the record no stipulation for the consolidation of the cases. A single judgment was rendered, captioned: “Amite Finance Company Vs. 26704 Jeff Easley” and “Hood Motor Company, Inc. Vs. 26705 Jeff Easley”, in which judgment the recitation was made these consolidated cases having been tried, judgment was rendered in favor of plaintiff, Hood Motor Company, Incorporated against defendant, Jeff Easley, in the sum of $2,100 with legal interest from date of judicial demand until paid and all costs of these proceedings. And it was further ordered that there be judgment in favor of Amite Finance Company against Jeff Easley in the sum of $2,961.20 together with legal interest from date of judicial demand and attorney’s fees in the amount of 25% of the aggregate of principal and interest and all costs of this proceeding and maintaining a writ of sequestration on the Chevrolet school bus seized and ordering that same be sold, with appraisement, and the proceeds paid to Amite Finance Company in satisfaction of th-e judgment by preference and priority.

From this judgment defendant, Jeff Easley, perfected separate devolutive appeals to this Court.

In the case of Amite Finance Company v. Jeff Easley, the only instrument attached to the suit and offered on the trial of the case is one bearing the title “Chattel Mortgage” dated June 18, 1957, signed by Jeff Easley and R. P. Watkins, payable at the office of R. P. Watkins in the amount of $3,942 of which $192 was payable on or before delivery of a Chevrolet described therein, being the same as that sequestered in these proceedings, and for the balance of $3,750 same was payable in thirty monthly installments of $125 each thereafter, described supra. On the reverse of the instrument there is the notation in handwriting: “Pay to Amite Finance Co., R. P. Watkins” and paraphed “ ‘Ne Varietur’ Identified with an act of Notarial Transfer before me this 2nd day of April 1963. Joseph H. Simpson, Notary Public.” And there was also filed a Notarial Endorsement and Assignment of Mortgage Note executed by R. P. Watkins before Joseph H. Simpson, Notary Public, in which this instrument is described as a chattel mortgage note.

This instrument is not a negotiable instrument. A mortgage is not a negotiable instrument under the negotiable instrument statute. Bell v. Canal Bank and Trust Company, 193 La. 142, 190 So. 359, and under the provisions of LSA-R.S. 7:1, not being made payable to “Order” or to “Bearer”, does not conform to the requirement essential to constitute same a negotiable instrument. I further observe, in the instrument itself, which was offered, provision is made for reasonable attorney’s fee in the event of non-payment, and judgment was rendered awarding Plaintiff 25% attorney fees with no evidence in the record to show same was a reasonable attorney’s fee.

Defendant made no specific objection to the introduction of the alleged instrument as proof of the indebtedness, but did file a general denial and pled payment of the obligation.

Accordingly, without recognizing such proof is sufficient to justify the judgment in favor of plaintiff, Amite Finance Company, against Defendant, but recognizing that a specific plea of payment is an admission of the correctness of the account, [Monroe Gro. Co. v. Barron, 16 La.App. 357, 134 So. 735], I come to the question of payment, specifically pled by Defendant in his answer, and there is presented for my review most unusual circumstances. According to the evidence submitted, defendant, Jeff Easley, operated the school bus in the Fifth Ward of Tangipahoa Parish, which he had purchased from plaintiff, Amite Finance Company. Because complaints had been made by parents of children passengers of the school bus to the then School Board member from that ward, Mrs. Celeste Mixon, to the effect that Defendant used profanity in the presence of the children and that he permitted his eighteen year old son to operate the bus, Mrs. Mixon contacted Mr. Dewitt Sauls, who was Supervisor of Tangipahoa school bus transportation, and informed him she intended to make charges against Mr. Easley. Mr. Sauls called Mr. Easley to his office, informed him of the possibility of charges being brought against him and suggested to Easley because of his circumstances of being sick it would be best for him to “get disability retirement”. This conversation took place in November of 1962 and because applications for retirement must be filed 30 to 60 days prior to going into effect, Mr. Sauls said he desired to have same processed immediately so it could be effective January 1, 1963. Following this conversation with Mr. Sauls, Defendant contacted Mr. Delma Populis for the purpose of selling the school bus. Here is where the alleged factual situation becomes unusual. Testimony was offered that the school bus driver, in selling his bus also sells the school bus route. Mr. Tom Smith had been elected to the School Board from Ward 5 but had not been inducted into office, which was to be done January 1, 1963. Mr. Easley brought Mr. Populis to see Mr. Smith and obtained his approval of Mr. Populis as the school bus driver in his place. Mr. Easley had previously accompanied Mr. Populis to the office of Mr. A. E. Hood, Jr., Secretary-Treasurer of Amite Finance Company, so that Mr. Populis could make financial arrangements to purchase the bus. On December 19, 1962 Mr. Easley and Mr. Populis met in Mr. Hood’s office and there executed an instrument labelled “Affidavit of Donation or Isolated (Occasional) Sale” signed by Jeff Easley and Delma Populis in the presence of A. L. Robinson and E. V. Ballard, who signed as witnesses, for the purported consideration of $6,660, whereby Easley conveyed to Populis the school bus and executed an assignment of title to Delma Populis. Delma Populis executed an instrument making application for Certificate of Title to the school bus and executed an instrument which is entitled “Transfer of Equity” to Hood Motor Company, Incorporated, of the school bus for $6,660. Upon the signing of these instruments, Mr. Hood deducted from the sum of $5,000 (1) the alleged balance owed by Mr. Easley to' the Amite Finance Company on the purported mortgage note of Easley’s held by it affecting the school bus, and (2) the' balance on the account owed by Mr. Easley to Hood Motor Company for purchases, from it made by Easley, and (3) gave Easley a check for $1,954.38 representing the equity owned by him in the school bus. after deducting the first two amounts. Though the sale from Easley to Populis and the transfer of equity from Populis, to Amite Finance Company was for the sum of $6,660, the difference between $5,000 and $6,660 represented carrying charges.

The instruments referred to, all labelled P-1 and introduced in evidence, were retained by Amite Finance Company, and never transmitted to the Motor Vehicle Bureau, nor were any of the instruments recorded.

Despite the promises made by Mr. Smith, the School Board did not employ Mr. Populis as a school bus operator. Whereupon, Mr. Easley, at the requests of Mr. Hood and Mr. Populis, attended the School Board meeting and sought to have Mr. Populis accepted and also importuned the services of the State Superintendent of Education, Mr. Jackson, to accomplish this result, however, without success.

Plaintiffs now maintain the payment made to Easley was conditioned upon his selling the school bus route along with the school bus to Populis, and as he failed to so deliver, the sale of the school bus was not confected.

In my opinion Mr. Easley had no right to sell the school bus route as such and the evidence does not warrant the con•clusion such was his contract. He could only surrender the right the School Board had accorded to him to the route, which he did.

The majority, without citation of authority, have reached conclusions of law with which I must confess I am not familiar. The evidence offered unquestionably shows Mr. Easley sold his school bus to Mr. Populis. The sale was complete. Mr. Populis sold the school bus to Hood Motor Company, Inc. Despite the fact no such relief was sought nor even prayed for and though Mr. Populis [who alone might have a cause of action to set aside the sale of the school bus by Easley to him] is not a party to these suits and •despite the fact plaintiff, Hood Motor Company, Incorporated, by the evidence is :shown to be the owner of the school bus, the majority have rendered judgment setting aside the sales of the school bus by Easley to Populis and by Populis to Plood Motor Company, Incorporated and have recognized said Plaintiff’s right to the sequestration of said bus and privilege thereon and ordered the sale of said bus to pay Plaintiff’s claim.

For these reasons I am of the opinion judgment should be rendered in favor of Jeff Easley against Hood Motor Company, Inc. and against Amite Finance Company, rejecting the demands of - said Plaintiffs and dismissing their suits at their costs.

I respectfully dissent 
      
      . There is no evidence in the record, not even an intimation that any member of the school board had or was to receive any part of the consideration even though a retiring bus driver could command much more than Ms bus was worth provided the purchaser could secure the position and bus route that he was surrendering. Such position is very desirable and carried many benefits.
     