Gee v. Thompson

37 La. Ann. 598

• Court: Supreme Court of Louisiana
• Decided: May 15, 1885
• Docket: No. 9356
• Status: Published

Opinion

The opinion of the Court was delivered by

Fenner, J.

In 1854, in the district court for the parish of Bossier, plaintiff, as indigent widow of Benjamin L. Saunders, recovered a judgment for the marital portion allowed her under Art. 2382 of the Civil Code, in the following terms :

“In this case, by reason of the law and the evidence being in favor of plaintiff, on her claim for marital portion, it is ordered, adjudged and decreed, that the plaintiff, Hannah P. Gee, be decreed to have onenintli of the net proceeds of the estate of Benjamin L. Saunders in usufruct as a marital portion, and that she do have and recover of and from the defendant, Martha L. Saunders, wife of Louis T. Steele, $213.88, and from Mary Saunders, a minor, $225; and from Maria Saunders, wife of Algernon S. Bailey, $202.77; and from Louis T. Steele, tutor for James L. Saunders, $227.77; and from Joseph A., Berry, tutor for Edwin Campbell, Mary Campbell and Sarah Campbell, children of Francis J. Saunders, deceased, $200; and from Louis F. Steele, tutor of Thomas J. Saunders, $211; and from Louis F. Steele,tutor of Ann F. Saunders, $244; and from Louis F. Steele, administrator of the Succession of Benjamin F. Saunders, deceased, $225 ; all of said sums bear five per cent interest from date hereof; and it is further ordered, adjudged and decreed, that said plaintiff recover of George W. Thompson, executor of the last will and testament of Benjamin L. Saunders, one-nintli part of the net proceeds of all the property belonging to the succession of Benjamin L. Saunders, deceased, with five per cent per annum interest from final settlement of said succession, except the slaves partitioned to the heirs, all said sums of money exclusive of interest, to be held by said plaintiff in usufruct, according to law, as her marital portion of the succession of said Benjamin L. Saunders, and to return after her death to the heirs of said succession, now living or their proper representatives; and it is further ordered that said plaintiff, by reason of the law and the evidence being in favor of the defendants, on the claim for community, take nothing therefor.” R. p. 14, et seq.

The foregoing judgment was affirmed by this Court. 11 Ann. 657.

The present action is brought in the parish of Natchitoches, against G. W. Thompson individually.

Plaintiff, after setting forth the judgment, alleges substantially: That the amount of capital, to the usufruct of which she became entitled thereunder, was $3444 44; that she was unable to furnish the security required by law in order to receive possession of said fund; that G. W. Thompson, “in Ms individual right and capacity, toóle possession of said capital sum and used, operated a/nd controlled the same, and therefore contracted and obligated himself in writing and in various other ways to pay to her interest upon said capital sum and its earnings of interest, the sum of eight per cent annually from and after the first day of January, 1367;” that Thompson had made her numerous partial payments prior to 1874, but had made none since that date; that her judgment is not prescribed, because the succession of B. L. Saunders had never been finally settled; and further, because said judgment was not a “ money decree, inasmuch as no money was recoverable by execution under it against said succession, but same only recognizes and establishes a right, which is m the nature of a perpetuity and is therefore imperceptible.” She prays for judgment against Thompson personally for eight per cent annually from January 1,1856, and interest on each annual instalment of said interest, subject to such credits for partial payments as Thompson may have made.

Stripped of the numerous parasitic issues with which it has been encumbered by the ingenuity of couhsel, the case is a very simple one.

Defendant filed exceptions of want of jurisdiction, no cause of action. res judicata, prescription, and others not necessary to mention. All were overruled or referred to the merits.

It is obvious that the court of Natchitoches parish is incompetent to enforce a final judgment rendered by a court of Bossier parish, or to entertain a suit against a succession opened and pending in Bossier parish, or against an executor qualified in the latter parish and administering under its authority. Of course the learned counsel for plaintiff makes no such pretense. His suit rests upon the allegation of a personal contract between his client and defendant in his personal capacity, as set forth in the italicized portions of our foregoing statement of his petition. If this allegation is sustained by proof, his action has a foundation to rest on; if not so sustained, it must inevitably fall.

The allegation was that such contract had been made “in writing and in various other ways.”

Defendant demanded oyer of the written contract so alleged.

Plaintiff responded, admitting that said contract was not in writing, but was verbal only; but alleging that payments had been made under said agreement for which receipts were given, and that she relied upon said receipts as “written evidence” of said contract.

Waiving technical objections as to this mode of proving an alleged contract in writing, the question remains: Has the contract been proved at all 1

It is too plain for discussion that it has not been proved.

The plaintiff died during the pendency of the suit and her evidence js wanting. The only witness in support of the contract is her son. and heir, Charles G-. Gee. With the confusion of ideas not uncommon in witnesses as to what they know and what they only believe, he testifies quite formidably in chief; but under cross-examination it conclusively appears that he knows absolutely nothing on the subject and he himself admits that he has always said that he could not establish the contract. His evidence has not the slightest value even as a beginning or as an aid of proof.

The receipts might have been of value as support and corroboration of other proof of contract; but they are utterly insufficient by themselves to establish it.

None of them refer to any contract. Some of them are from G. W. Thompson, without mention of Ilia capacity; others are from “Thompson, dative testamentary executor,” etc. They are payments made at irregular intervals and in amounts bearing no apparent relation to any particular rate of interest. They all describe the payments as made for “interest on the judgment”, not on any contract. They establish nothing except the fact that Thompson did make such payments, but they wholly fail to prove that he had bound himself personally to make them, much less to continue to make them.

The only one remotely tending in that direction is receipt No. 11, and that is a receipt from “Geo. W. Thompson, dative testamentary executor of the last will of B. L. Samiders, deceased,” thus 'negativing his personal ability.

On the other hand, the record presents the positive testimony of defendant denying the existence of any such contract, parol or written, express or implied, and explaining circumstantially his whole action in the premises.

For these reasons we are compelled to reverse the judgment appealed from, which, however, is itself totally at variance with plaintiff’s alleged contract, being a judgment for five per cent interest per annum on $3444.85 from June 17, 1874, to October 10, 1883. This is not the enforcement of any contract proved or even alleged.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be and is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that plaintiff’s demand be rejected at her cost in both courts, without prejudice to her rights against the executor and heirs of Benjamin L. Saunders, deceased.

.Rehearing refused.