Sharp v. McBride

BREAUX, C. J. This is the second suit brought by plaintiff against defendant on a verbal contract, in accordance with which plaintiff engaged himself to render services to defendant as overseer and manager. In the first suit he claimed $1,200* for the year’s services, which he recovered. In the present suit he claims 10 per cent, on the net profits on the plantation made in 1905. His portion of the profits he claims amounts to $5,000. Defendant in the present suit excepted to plaintiff’s suit on the ground that on March 25, 1905, the plaintiff filed suit (which was the first suit to which we have referred before) asking for $1,200 as salary for the year, and averred that plaintiff in this suit asked for less than is now claimed under the contract before mentioned. That, having obtained judgment for the lesser amount which he chose to claim, plaintiff has no ground upon which to recover a further sum. That he might have in the first suit recovered the additional amount, if any was due. That he might have introduced his evidence and recovered judgment for all that was due him. That the contract being the same, also the cause of action, he cannot now recover. Plaintiff, on the hearing of defendant’s exception, offered evidence, part of which consisted of the petition in the first suit, in which he alleged that at the beginning of the year 1905 he took charge of defendant’s plantation in accordance with a verbal agreement, which is the same as- the contract mentioned above. Plaintiff avers that, while he was in defendant’s field busy directing the work, he was notified to return to the sugar house, and that on his return he met the defendant, who, as he (plaintiff) alleged, arbitrarily discharged him. That he thereupon asked for a settlement, which defendant refused to make and instead proposed to pay him $100 for all services rendered to the date of the discharge. Plaintiff alleged further that he had averred 'in his petition in the first suit that he could not obtain a judgment for the net profits because it was not possible at the time he was discharged to fix the amount of the profits for the year 1905. He brought his suit early in the summer, the crop had just been pitched, and the amount of net profits it would bring was not at that time by any means a certainty. Plaintiff also averred that he is an overseer and manager of plantations; that he was thrown out of employment and could not find anything to do. He asked for judgment for the $1,200, and also asked to have his right to the 10 per cent, net profits of the crop of 1905 reserved. This exception was overruled. Defendant then pleaded the general denial and made certain admissions, such as that he had employed the plaintiff as his overseer at a hundred dollars per month and that he was led to believe that he would be relieved from all anxiety and worry; that he was a competent and good manager and in every respect that he would give entire sat [253] isfaction, but that he soon discovered that this was not true. But, on the contrary, the plaintiff was incompetent and not qualified to take charge of the plantation; that all of his promises in regard to his usefulness as overseer and manager amounted to nothing. He mentioned a number of grounds to justify the discharge, which we will not detail at length, for we consider that the question of his discharge and want of justification therefor was put at rest by the decision in the first suit. Defendant also alleged that he continued to retain control and direction of his plantation as he did not wish to entirely surrender all authority until he had acquired entire confidence in the plaintiff. That it was while exercising the authority of an owner that he discovered the error he had made in employing the plaintiff. The Exception. [1 ] The 10 per cent, on the net profits claimed, which defendant contends plaintiff has lost by not alleging and proving the amount of the profits in the first suit, is the ground alleged in the first exception filed in this case. Another exception was filed on appeal which we will consider later. No question but that plaintiff sought to have the right reserved to recover the amount in another suit subsequent to the first. Although the plaintiff had asked to have the right to the net profits reserved, the judgment of the district court is silent in regard to it. Also the judgment of the Court of Appeals. When the question came up before this court, there was no mention made of this right which the plaintiff wished to have reserved. In fact it was not an issue in any way. Taking up the question of the finality of the judgment heretofore rendered, we have noted that the plaintiff demanded all that was due him at the time which it was possible for him to recover, and as to the balance, the right which he was -anxious to have reserved, he gave reasons for not demanding it at that time, viz., that it was not susceptible of proof; there was no telling just then how much the crop would bring at the end of the season; that while growing it had no marketable value; and that was not the profit intended under the terms of the contract. Unquestionably the net profits could ■ not be due and exigible at the date the first suit was brought. In consequence, this amount was due at a different time and demandable separately from the fixed amount which had already been paid. The article of the old Civil Code (2060) is quite clear and pertinent. It excepts sums due at different times and demandable separately. It requires all demands to be made at one time under one contract and for all amounts due under one contract; but amounts not demandable when suit is brought are not lost by not including them in the suit. Had plaintiff sought to recover the amount in the first suit, he would not have been able to make the required proof. The decisions cited by defendant in support of his exception are different in their facts. In each of these decisions the creditor demanded less than the amount due and exigible under the same contract, although it was possible to have demanded the whole amount, and different from the present suit in which it would not have been possible to prove the sum which could only become due thereafter. We have examined the decisions cited and not in a single instance does it appear that the amount demanded in those cases was not susceptible of proof. We are therefore of the opinion that the exception was properly overruled.