Haughery v. Lee

Labatjve, J. This case involves a pure question of law, which must be examined 'and decided upon the face of the papers. The plaintiff, after having alleged the indebtedness of the defendant to her, in the sum of $820, states, as the consideration of the debt, “that said Lee, on or about the 20th day of October, 1859, went into possession of a residence, situated on Seventh street, between Náyades and Prytania streets, in the Fourth District of this city, and belonging to petitioner, on 'an understanding with petitioner that he should pay her a reasonable rent forsaid premises. ” ‘ At the same timé, she prayed and obtained upon her affidavit a provisional seizure against the furniture and effects of the defendant, as in a case of lease. ■ The defendant, on motion, obtained a rule upon the plaintiff to show cause, oh.the 10th of January 1861, at 10 o’clock, A. M., why tho writ of provisional seizure herein-issued, should not be set aside, on the grounds : 1. That the affidavit, upon which the saijl writ was issued,'does not show that the amount claimed is for rent of the premises described in the petition. 2. It does not show that^ there was any lease of said premises to defendant. 3. That the claim, as set forth in the petition, is based upon the mere occupancy by defendant, of the premises, which does not give rise to such relations between the parties as to authorize a provisional seizure. A fourth ground to the insufficiency of the affidavit, which it is unnecessary to notice. * The District Judge made the rule absoluto, and set aside the provisional seizure, with costs, The plaintiff appealed from that judgment. [23] This rule is in tlie nature of a motion made on thé facé of the papers, thereby taking for true the allegations, for the purpose of trying the rule. The question is, then, whether or not the understanding to paya reasonable-' renlis afixeclprice, a-pAae certain wid determínale. C. C: Arts.-2639-2641. We think there was no price fi. vedliy ths parties, as contemplated by law, nor' was the price left to a third person named and determined. C. C. Art. 2642. If anything, it was left to be fixed by a person not designated, to persons called as witnesses in the suit to say what was a reasonable price;. and then there might have been as many different prices as there 'were witnesses ; therefore, there being no price fixed by the parties, or left to' the award of a third person named and determined, the'a¿reeifient wanted", an essential ingredient to constitute a contract of lease.' 0. 'C. Art. 2640. It is therefore adjudged and decreed that the judgment of the lower Court be affirmed, with costs. ; Howell, J., being the Judge who decided the case bélow, took no .part in this decision. ' ' Jones, J., absent.