Gentile v. Schlieder

ON MOTION TO DISMISS. ESTOPINAL, J. On the 24th of March, 1904, the defendant [17] leased from the plaintiff certain premises in Iberville street, in this City, for the term of five years, beginning on the 1st day of June, 1904, and ending on the 31st day of May, 1909, at the rate of One Hundred and Twenty-five Dollars ($125.00) per month for the first three years of said lease, said rental being payable monthly on the last day of each and every month, and represented by sixty rent notes made by the lessee, payable to plaintiff. The lessee failing to take up or pay the first three notes, to-wit: Those falling due on July 1st, August 1st; and September 1st, 1904, plaintiff filed a suit against the defendant for Three Hundred and Seventy-five Dollars ($375.00) the aggregate of said three notes. Defendant’s answer avers that on the 1st of June, 1904, certain repairs which he alleges plaintiff had bound himself to malee to the building were not finished, and that the place was in an uninhabitable condition, and could not be used for any purpose whatsoever ? Further answering the defendant admits that he was liable for the note maturing on the 1st of September, for the August rent, and accordingly, deposited in the registry of the Court, the sum of One Hundred and Twenty-five Dollars ($125.00), to pay said note, which he tendered the plaintiff. Upon the trial of the case below judgment was rendered in favor of plaintiff for the sum of One Hundred and Twenty-five Dollars ($125.00), the amount admitted by defendant to be due, but rejecting his demand for the rent for the months of June and July. Plaintiff then took an appeal to this Court, during the pendency of which he filed a motion in the Lower Court on July 21, 1905, to be allowed to withdraw the said amount of One Hundred and Twenty-five Dollars ($125.00) from the registry of the Court. Defendant urges in this Court that plaintiff’s act in withdrawing and taking possession of said tender then in the registry of the Court, is virtually in acquiesence in the judgment of the Lower Court, and that in consequence his appeal should be dismissed. If, in considering this question, this Court were to base its conclusions upon the brief and oral argument presented by counsel for the defendant with out reference to the pleadings in the case, it is foregone that the case would be with him, for it is [18] elementary that if the tender had been made- intending that it should be in full settlement of plaintiff’s claim, and the tender be accepted and withdrawn from the registry of the Court, the act would be considered án acquiesence in the judgment on his part, and the motion to dismiss must prevail. An examination of defendant’s answer shows, however, that he denies owing any rent for the months of June and July, but admits that he owes rent for the month of August, which he paid. There is no averment in the answer that the money paid by defendant is in full settlement for the three months,. but it is clearly and explicitly set forth therein that the money deposited and tendered by defendant is for the August rent, for which he admits his liability. This is in the nature of a confession of judgment for which a judgment could have been obtained by plaintiff without trial. The effect in the elimination of this part of the demand from the controversy, leaving the balance to be litigated for in the same manner as though the claim for the amount tendered had never formed part of the suit. The jurisprudence of this State on the matter presented is no longer to be questioned, practically the same issue having been decided in the 2 Municipality, vs. Corning, 4 An. 407. Parsons, vs. Suarez, 9 La. 412. Small, vs. Zachary, 4 Rob. 144. Skinner, vs. Dammeron, 5 Rob. 448, and Conrad, vs. Burbank, 24 An. 17. The motion to dismiss is without merit and is overruled.