Donaldson v. Sheridan

MOUTON, J. Plaintiff sues defendant for $375. His suit is based, substantially, on the allegations that he was given the exclusive agency by defendant to sell a property located in Hammond for $9000 on a five per centum commission by written agreement on the sale price within a fixed period of thirty days from the date of the agreement; that shortly after the date agreed upon, defendant personally or through the mediation of another, sold the property for $7500, which made it impossible for plaintiff to carry out his contract of agency with which he was willing to comply. Defendant was properly cited, a preliminary default was entered against [499] him and subsequently confirmed within the legal delays for the amount claimed. In the record appear the petition, citation on defendant at domicile, with proper return by the sheriff. There is, however, no written agreement in the record constituting plaintiff the agent of defendant to sell the property on a per centum basis as by him alleged, and no proof, oral or documentary, showing that defendant had violated his contract by selling the property through himself or another agent. The contention of defendant appellant, is that the absence of such proof is fatal to plaintiff, and that the judgment confirming the default should be annulled and the case dismissed. It may be proper to state at the outset that “we are not called upon in this case to review a statement of facts or a note of evidence taken upon the trial, and to decide whether the judgment is sustained by the proof,” as was stated by the court (Stout vs. Henderson, 157 La. 169, 102 So. 193, 194), in a case involving similar issues to those presented herein. The question here is as to whether, in the absence of a note of evidence, it must be presumed that the lower court proceeded to judgment on proper or sufficient evidence. The clerk in his minute entry says in reference to the confirmation of the default that it was confirmed upon plaintiff “offering in evidence the original citation with the sheriff’s returns thereon, together with the record in the case, etc.” If, as counsel for appellant contends, the offering was restricted to the petition, citation and return of the sheriff, why should the clerk have said in that minute entry that this offering was made “together with the record in the case?” If the offering had been limited to the citation and return, the words “together with the record” would not have been used. The word record, so used, must have reference to documentary proof or oral testimony which constituted that record referred to in connection with the citation and return, as hereinabove stated. Besides, this view of the minute entry is corroborated by the fact that in the judgment confirming the default it is stated it was rendered on the production by the attorney of “due proof in support of plaintiff’s demand.” See Ansley vs. Stuart, 123 La. 330, 48 So. 953, and where it is also stated, that the certificate of the clerk must yield to the minute entry. Counsel for appellant contends that the judgment should be annulled, particularly, because the suit was predicated on a written contract of agency which is not in the record. In Smith vs. City of New Orleans, 24 La. Ann. 20, where the suit was on a note a similar objection was raised, but the court held that though the note was not •offered in evidence, and that the record did not show that any proof had been introduced, the presumption was that the lower court had proceeded on proper evidence. Hence, the presumption .in this case is that sufficient evidence was offered on the written agreement, and also to show that defendant had violated his contract. See also Stout vs. Henderson, 157 La. 169, 102 So. 193; Ansley vs. Stuart, 123 La. 330, 48 So. 953.