Kean v. Chaney , 3 La. App. 512 ( 1925 )

MOUT'ON, J.

Defendant, on Peb. 1st, 1924, executed his promissory note in favor of plaintiff for $400.00 for the rental of 203 acres of land on a verbal lease. Plaintiff brought suit on the note and obtained the provisional seizure of some household effects of defendant to satisfy her demand. There is no attack of either the note or seizure by defendant, who claims $498.75 from plaintiff in reeonvention for the value of improvements he alleges to have made on the property duriñg his possession as lessee.

In his reconventional demand defendant claims that these improvements were made in the year 1924, which is the year for which the note sued upon was given. It developed in the course of the trial that defendant had been leasing the property from plaintiff for several years prior to the year of 1924. Upon proof being offered by defendant to show that these improvements had been placed on the premises during these prior years, plaintiff objected thereto, contending tjiat the pleadings did not authorize the introduction of evidence to sustain any agreement in reference to improvements preceding 1924. This objection, we think, was well grounded, as the answer of defendant regarding the alleged improvements was restricted to the year 1924. Such evidence was at least of doubtful admissibility, but, as it is in the record and disposes of the issue, we shall consider it. Counsel for defendant says the lessee is the owner of the improvements put by him on the thing let, and has the right to remove them at the termination of the lease. As a general proposition this is correct, and Article C. C. 2726 so declares, subject to the modifications as therein provided. Testifying in reference to these improvements, plaintiff says, it was positively understood that the repairs which defendant made on the property were not to be taken out of the rent. Further she says that her contract with defendant was his assumption of the rent and the repairs he made on the pla*ce. In this respect she is supported by the testimony of F. H. Kean, her agent, who conducted the transactions for the rent. It is shown that several settlements were made by defendant for rent for the years which preceded 1924, and that, at no time prior to 1924, he urged any reimbursements for these repairs. It was in 1924, for the first time that he laid claim thereto. Defendant testifies to a contrary state of facts, but his testimony can not prevail against the evidence of the plaintiff, corroborated by the testimony of her agent, by the circumstances of the case, and by which it appears that, according to the agreement of plaintiff. and defendant, which became the law between the parties, the improvements or repairs were to be included in the rent. The recovery of their value by defendant was therefore properly denied by the District Judge.

Affirmed.