Kenyon v. Berghel, F. W. C. , 13 La. 133 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiff states, that he rented from the defendant a house, intended to be occupied as a boarding house, which the'latter promised to repair and improve, so as to render it fit for the purpose for which it was rented, which she neglected to do ; and the plaintiff was at great cost and expense in ’ 1 ° 1 having it done. The object of the present suit is to recover the amount so expended, and damages.

The defendant pleaded the general issue, and that no contract intervened between the parties, except one of lease, which was reduced to writing, and contains no obligation on defendant to make the repairs and improvements mentioned in the petition. There was a verdict and judgment for the plaintiflj .and the defendant appealed.

Our attention is arrested by two bills of exception ; the first is to the admission of parole evidence, to prove the contract alleged in the petition, on the ground that there was a written one, in which the plaintiff agreed to receive the house in the condition in which it then stood, and that there could not exist, at the same time, two separate and independent contracts relative to the said lease. The objection was overruled, on the ground that it might appear from the evidence that the verbal contract related to a separate building ; and further, that a verbal contract concerning the finishing and improving said property might exist independent of, and unconnected with the lease.

• The second bill is to the refusal of the judge to charge the jury, that the evidence disclosing that the lease and parole contract related to the same building, the jury ought to disregard the parole evidence of what may have been said before, at the time, or after the execution of the lease. The court instructed the jury to disregard the testimony in construing the written contract; but if they believed that there existed a separate verbal contract respecting the finishing and repairing the house, it might be proved, and that the obligation of the plaintiff grew out of an implied or quasi contract, on a quantum meruit. The defendant requested the judge to charge, that the defendant’s obligation, if any, resulted from the Louisiana Code, article 2697, giving the lessee the right to remove his improvements, unless the lessor pay a fair price therefor. The judge further charged, that there was a count in the petition for services, on a quan-ium meruitS and that the law recognizes the doctrine, that when one renders services beneficial to the other, an implied .... contract is raised for remuneration.

Parole ev!-received™3^ w prove a verbal agreement in regard to the oc-pairs'of certain bmidings, although there be a written loase, ment'relates Cto a separate matter not contained in the lease. dence° win Té disregarded m construing a written lease, ceived^In proof teiiiorntto°tFthe lease.

I. As to the first bill of exceptions, it is incorrectly stated therein, that the lessee bound himself by the lease to receive the premises in the condition in which they were. Had this ^een the case, it might be questioned whether it could be shown, that immediately after the execution of the lease, an . oral agreement was made, directly in contradiction to the lease J for this might be said to be prohibited by the Louisi-aaa Code, article 2256, which forbids the admission of parole ? . * evidence against what is contained in acts, or what is said s>nce making them ; but this is not attempted, and evidence js offered of a second and distinct agreement on an object not . . J mentioned in the lease. It does not appear to us that the court erred.

II. On the second bill, the court correctly charged the jury to disregard the parole evidence in construing any part of the lease; but to attend to it as the proof of a contract posterior t0 iease 'We ¿)0 not see that there was any necessity to-j j direct the jury to the consideration of the article of the Louisiana Code relied on by the defendant. The amount of the plaintiff’s claim was correctly stated to be on a quantum meruit. The latter part of the charge ought to have been restrained to services rendered, at the instance and request of defendant; or as a negotiorum gestor, — but this modification was not necessary in the present case, which is that of damages sought from the defendant, for having failed to do what she had promised.

III. On the merits, it appears to us that the plaintiff has made out his case, and is entitled to (he verdict and judgment he has obtained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.