Lewis MacHine & Welding Serv. v. Amite Ready Mix Co.

148 So. 2d 869, 1963 La. App. LEXIS 1220
CourtLouisiana Court of Appeal
DecidedJanuary 18, 1963
Docket5716
StatusPublished
Cited by7 cases

This text of 148 So. 2d 869 (Lewis MacHine & Welding Serv. v. Amite Ready Mix Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis MacHine & Welding Serv. v. Amite Ready Mix Co., 148 So. 2d 869, 1963 La. App. LEXIS 1220 (La. Ct. App. 1963).

Opinion

148 So.2d 869 (1963)

LEWIS MACHINE & WELDING SERVICE, INC.
v.
AMITE READY MIX COMPANY et al.

No. 5716.

Court of Appeal of Louisiana, First Circuit.

January 18, 1963.

*870 Palmer & Palmer by Chas. B. W. Palmer, Amite, for appellant.

Edwin C. Schilling, Jr., Amite, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

*871 LANDRY, Judge.

This is an action on an open account wherein plaintiff, Lewis Machine & Welding Service, Inc., seeks judgment in its favor, individually and in solido, against Ogden O. Watson and/or the unincorporated firm known as Ogden O. Watson D/B/A Amite Ready Mix Company, and/or the corporations known as Amite Ready Mix Company, Inc. and Service Sand & Gravel Company, Inc., which concerns are alleged to be either unincorporated firms owned by Watson or corporations represented by him in the capacity of president. The suit is for money judgment in the sum of $1,690.45 allegedly due for repairs to a certain TD-18 Bulldozer reputedly ordered and requested by Watson either as owner of the Bulldozer in his individual capacity, or as owner of one of the aforesaid unincorporated firms, or in his capacity as president of one of the aforesaid corporations.

To plaintiff's said petition all defendants filed exceptions of no right and no cause of action which were sustained by the trial court. From the judgment of the lower court dismissing and rejecting its demands as to all said defendants, plaintiff has appealed.

Although defendants' exceptions are denominated exceptions of no right and no cause of action, the arguments advanced in support thereof clearly show they are in reality exceptions of no cause of action only. Hence, our discussion of said exceptions shall proceed on the premise they are solely exceptions of no cause of action.

The gravamen of plaintiff's complaint is to be found in Articles 1, 2, and 3 and the prayer of the petition which articles and prayer are herein set forth in full as follows:

"1.
"Amite Ready Mix Company, or in the alternative, Service Sand & Gravel Company, Inc. or in the further alternative, Kentwood Ready Mix, all or a part of the above companies being owned and operated by Ogden O. Watson, either as a corporation or a solely owned business, on information and belief, are all or singular justly indebted unto your petitioner, both jointly, individually, and in solido, in the full sum of ONE THOUSAND SIX HUNDRED NINETY AND 45/100 ($1,690.45) DOLLARS, for the following, to-wit:
"2.
"On or about the 25th day of April, 1959, in the name of Amite Ready Mix, petitioner furnished certain materials on the dates and amounts set forth on the sworn itemized statement of account, attached hereto and made a part hereof, all at the request of Ogden O. Watson, the owner, or in the alternative, the president, of this company.
"3.
"On information and belief, the said Ogden O. Watson d/b/a Amite Ready Mix Company, formed a corporation known as the Service Sand & Gravel Company, and probably several other corporations and that the assets of the Amite Ready Mix Company were transferred to the Service Sand & Gravel Company and/or by any other one or several corporations organized by the said Ogden O. Watson, without complying with the bulk sales law, therefore, Ogden O. Watson, Amite Ready Mix, and the Service Sand & Gravel Company, Inc. or any other corporations to whom the assets of the Amite Ready Mix Company were transferred, without compliance to the bulk sales law, and are all justly and duly indebted unto petitioner up to the value of ONE THOUSAND SIX HUNDRED NINETY AND 45/100 ($1,690.45) DOLLARS, as provided in the Bulk Sales Law.
"WHEREFORE PETITIONER PRAYS that the defendants, Ogden Watson d/b/a Amite Ready Mix Company, Amite Ready Mix, Inc., Service *872 Sand & Gravel Company and/or any other corporations to whom the assets of the Amite Ready Mix Company were transferred, be duly cited to appear and answer this petition; that after legal delays had, there be judgment herein against the said defendants, jointly, individually and in solido, and in favor of petitioner, in the full sum of ONE THOUSAND SIX HUNDRED NINETY AND 45/100 ($1,690.45) DOLLARS, from the date of judicial demand.
"In the alternative and only in the event that the bulk sales law was complied with or that these debts were found to be due by some other company that judgment be rendered in favor of Lewis Machine & Welding Service, Inc. and against any individual company or individually owned business that is found by the court to owe Lewis Machine & Welding Service, Inc. the amount of One Thousand Six Hundred Ninety and 45/100 ($1,690.45) Dollars, and in the further alternative, that Ogden O. Watson, Amite Ready Mix or any other company that has replaced or bought the assets of the Amite Ready Mix Company, or justly and truly indebted to Lewis Machine & Welding Service, Inc. on the basis of quantum merit.
"PETITIONER FURTHER PRAYS that the defendants answer the enclosed interrogatories categorically and under oath within fifteen days, and for full, general and equitable relief."

Plaintiff earnestly contends the above quoted portions of its petition in essence sets forth the following alternative demands: (1) A claim against defendant Ogden O. Watson individually for repairs to a bulldozer belonging to him and made pursuant to his request therefor; (2) Demand against defendant Ogden O. Watson D/B/A either of the unincorporated associations known as Amite Ready Mix Company or Service Sand & Gravel Company for repairs to the equipment in question because such repairs were ordered by Watson as owner of the unincorporated concern which held title to the equipment at the time the repairs were ordered and subsequent thereto Watson transferred the machine to the other said concern without complying with the Bulk Sales Law of this state thereby imposing liability upon both purchaser and seller; and (3) Demand against corporations known as Amite Ready Mix, Inc. and Service Sand & Gravel Company, Inc. by virtue of Ogden as President of one of said corporations having ordered repairs to the property of the corporate owner and subsequently transferring title to the property to the other corporation without complying with the Bulk Sales Act thereby resulting in liability for said repairs on both vendor and vendee corporations.

Our esteemed brother below did not assign written reasons for the judgment rendered. It appears, however, from the briefs of counsel filed herein, that the judgment of the trial court was predicated solely upon the conclusion that plaintiff's demands in toto were founded upon an alleged violation of the Bulk Sales Law of this state which statute the trial court found inapplicable to any transfer of the repaired equipment which defendants may have entered into subsequent to the performance of the work for which plaintiff herein seeks recompense.

It is the settled jurisprudence of this state that to determine the true nature and character of a plaintiff's demand, the courts will look to the substance or essence thereof and that a litigant's claim will not be rejected because of inexpert pleading unless no other alternative is open to the courts. Bozeman v. McDonald, La.App., 40 So.2d 517.

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Cite This Page — Counsel Stack

Bluebook (online)
148 So. 2d 869, 1963 La. App. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-machine-welding-serv-v-amite-ready-mix-co-lactapp-1963.