Mercier v. Clesi

142 So. 853

• Court: Louisiana Court of Appeal
• Decided: June 27, 1932
• Docket: No. 14045.
• Status: Published

Opinion

WESTEREIELD, J.

Plaintiff herein, Alfred Mercier, obtained a judgment against Nicholas J. Clesi and caused a fi. fa. and garnishment to issue against Emanuel L. Weil, notary public. Mr. Weil answered that be bad in bis possession $200 belonging to Clesi, wbicb be was willing to dispose of as tbe court might order. Nicholas J. Olesi, Inc., thereupon intervened and claimed ownership of the $200 in tbe bands of Weil, and asked that Mercier be ordered to show cause why the garnishment, in so far as it was directed against tbe $200', should not be canceled and set aside and intervener be declared to be tbe owner of tbe money on deposit with Weil. Prom a judgment making the rule absolute, Mercier has appealed.

Tbe question presented for our consideration is whether the money in the bands of Weil belongs to N. J. Clesi individually, or N. J. Clesi, Inc. Tbe sum in question represents commission earned in tbe. sale of certain property, and it appears, from tbe agreement of sale, that N. J. Clesi was tbe broker who bad earned tbe commission, since tbe letters “Inc.” are omitted and tbe agreement on its face seems to have been entered into by tbe individual CÍesi and not by tbe corporation of N. J. Clesi, Inc. N. J. Clesi, who is tbe president of N. J. Clesi, Inc., testified that .at tbe timé of tbe transaction, from wbicb tbe $200 credit arose, be was not individually engaged in tbe real estate business, in fact had no real estate broker’s license, and that tbe corporation did have a license and that the sale was negotiated by tbe corporation; the letters “Inc.” having been inadvertently omitted. A salesman, by tbe name of Murphy, who assisted in tbe transaction, testified that be was employed by N. J. Clesi, Inc., and not by N. J. Clesi individually, and that “Inc.” bad been omitted in error.

This testimony was objected to on tbe ground that it was inadmissible under tbe parol evidence rule for the reason that it tended to contradict the written contract, wbicb was complete on its face. Tbe objection was overruled and, we think, properly, for tbe reason that tbe parol evidence rule applies only to parties to tbe instrument and those claiming under it, and not between a party to tbe instrument and a stranger. See Henderson Iron Works & Supply Co. v. Jef-fries, 159 La. 623, 105 So. 792, 793 where the following appears:

“Plaintiff, relator here, complains that tbe Court of Appeal erred in receiving (i. e., considering) parol evidence to show the true facts of tbe conveyance by Woodward to Jef-fries, thus contradicting tbe recital of tbe deed that tbe consideration thereof was cash, and to that end relies on Revised Civil Code, art. 2276 (formerly 2256), reading as •follows:

“Article 2276 (2256): ‘Neither shall parol evidence be admitted against or beyond what is contained in tbe (written) acts. * * *’

“Rut already as far back as Einley v. Bogan, 20 La. Ann. 443, this court bad said:

‘“The article 2256, C. C. (now R. C. C. 2276), contemplates tbe parties to tbe act and their representatives, and not third persons. ⅜ * ⅝ This rule is too well settled to be now controverted.’

“And tbe well-settled jurisprudence, wbicb prevails universally, is thus stated in Corpus Juris, vol. 22, pp. 1292, 1298, Yerbo, Evidence, § 1725:

“ ‘The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between tbe parties to tbe instrument and those claiming under them. It has no application in controversies between a party to tbe instrument on tbe one band and a stranger to it on the other. * ⅜ si; >

There being no other evidence in the record, we conclude that tbe $200, which plaintiff seeks to satisfy tbe judgment be has against N. J. Clesi individually, is tbe property of N. J. Olesi, Inc., and that therefore the rule declaring tbe money to be tbe property of tbe corporation was properly maintained.

For tbe reasons assigned, tbe judgment appealed from is affirmed.

Affirmed.