Paquetel v. Gauche

Lesley, J. This suit was instituted by the plaintiff to recover the possession of, and to eject from the leased premises the defendant, who, it is alleged, illegally detains them. The defendant plead the general issue, and specially averred that he never was the monthly tenant of the-plaintiff, having leased the premises on the 12th January, 1866, from Mr. Pierre Soule, for the period of two years, from the 16th of October of that year, with the privilege of extending it for five years ; of which privilege the defendant has availed himself, and by virtue of which he occupied the premises until the expiration of his aforesaid lease. Judgment was rendered in favor of the plaintiff, and the defendant, after attempting to obtain a new trial, has appealed. On the trial of the rule for a new trial, exceptions were filed, on two grounds : . 1. Because the evidence upon which said judgment was rendered is insufficient, and does not authorize such judgment; and, 2. Because this suit was instituted by direction of A. Bobert, Esq,, without any legal and sufficient authority. The defendant offered to prove by A. Pitot, Esq., plaintiff’s attorney, that he had been employed to bring this suit, and had brought it by direction of A. Bobert, as agent of the plaintiff, from whom plaintiff Pitot had received no instructions to bring said suit. The defendant also offered to introduce the power of attorney, by virtue of which, Mr. Bobert assumed the authority to order the institution of this suit, for the purpose of showing that said Bobert was not authorized to institute the same. This testimony was objected to because there was no affidavit showing that the facts defendant wanted to prove had been discovered since the trial, and that it was too late to offer said testimony; and the objection being sustained by the court, a biE of exceptions was taken by the defendant. We think the judge did not err. C. P. 661. No evidence whatever has been adduced by the defendant to sustain his defense, whilst the plaintiff proves that the defendant has paid rents for the property to her agent; and as he has been in the undisturbed [64] possession of the premises as her tenant, he cannot dispute the title thereto. Tippett v. Icte, 10 L. 362. In the absence of any special agreement as to the extent of the lease, it must be presumed to have been a monthly one. O. C. 2655. And due notice having been given him by the lessor to terminate it, in accordance with Article 2656 C. C., by A. Robert, whose testimony on this point it not objected to, the judgment of the lower court must be affirmed. Wherefore, it is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, and that the appellant pay the costs of appeal. Hyman, C. J., absent.