The plaintiff, George W.'Garig Transfer, Inc., a Louisiana corporation, instituted proceedings by non-resident attachment and substituted service through a curator ad hoc against the defendant, J. Dolan Harris, d/b/a Magnolia Express, a resident of Mississippi, seeking to be declared the owner of Louisiana Public Service Commission Certificate No. 297-A authorizing operation of a common carrier motor freight service between New Orleans and the Louisiana-Mississippi state line on U. S. Highway 51, in both directions, and serving all intermediate points; and seeking also to recover damages for alleged loss of profits. From a judgment declaring plaintiff to be the owner of the certificate, both parties have appealed.
The facts giving rise to this controversy are not disputed. Those pertinent to the issue, as revealed by the record, are that for several years the plaintiff had been desirous of purchasing from the defendant the said certificate, and following extended discussion the parties came to an agreement whereby the defendant was to sell the certificate to the plaintiff for $4,000 cash. An act of cash sale was prepared by the plaintiff at Baton Rouge (its domicile) and mailed to the defendant in Mississippi, where it was duly executed before a notary and two witnesses on April 19, 1950, and was then brought to Baton Rouge by the defendant. Two days later, in that city, the parties by written instrument "agreed that the said contract of sale which they have executed, together with the consideration therein stipulated consisting of $4,000 cash, shall be placed in escrow with the City National Bank of Baton Rouge, Louisiana, Escrow Agent, together with a copy of this contract, to be by said agent held under the terms of this agreement;" with instructions that upon the approval of the transfer of the Certificate by the Public Service Commission, to be sought by a joint petition to that body, and evidenced by its Order, the agent "shall deliver the contract of sale to the said purchaser and the consideration thereof to the said seller," but in the event that the Commission should issue an Order denying the transfer, the agent "is * * * directed to return said contract of sale to the said seller and the said consideration to the said purchaser, and this agreement shall thereupon be cancelled."
It appears that at the time of the execution of this agreement, a joint petition to carry out this transfer had already been filed with the Public Service Commission. The Commission, however, did not consider the matter until its meeting of August 23, 1950.
On the 9th of November following, the defendant appeared through counsel of his own choice and filed a motion to dissolve the attachment and dismiss the suit on the allegation that the bond was defective in
The exceptions, after argument and submission, were disposed of by the trial judge as follows:
Following trial of the case on the merits the trial judge, in his written reasons for judgment, expressed the view that he "had jurisdiction of the res, that is, the certificate in question," and therefore "had jurisdiction to proceed with the case, since ownership [of the certificate] was the principal issue," as reflected by the prayer of the petition; he also found that a reading of the petition showed there was clearly no merit to the other exceptions; and on the merits, concluded "that the contract under consideration here cannot be properly labeled either a contract of sale or a contract to sell, but more properly a contract conditioned upon an event happening over which neither of the parties had absolute control," and was governed by the provisions of the LSACivil Code declaring "When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen", Art. 2038, but "The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it," Art. 2040. There was judgment decreeing the plaintiff to be the owner of Certificate 297-A, and ordering the City National Bank of Baton Rouge, Escrow Agent, to deliver to the plaintiff the contract of sale of said certificate and to the defendant the $4,000. While the Court, in its written reasons for judgment, expressed the opinion that "the plaintiff failed to show with sufficient clarity the damages sought, and hence that part of its demand will be rejected," the judgment is silent on the point.
It appears to us that when the defendant submitted his plea to the jurisdiction ratione materiae at the same time as he submitted the plea to the jurisdiction ratione personae, and these were argued, submitted, and disposed of in one judgment, his action constituted a waiver of the exception to the jurisdiction ratione personae. State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708; Martel Syndicate v. Block, 154 La. 869, 98 So. 400. Under the well settled jurisprudence of this Court, the exception of want of jurisdiction ratione personae, to be valid, must be presented in limine and alone, and "an appearance to the suit, except for the purpose of objecting to
In any event, we think the trial judge, in his ruling that he had jurisdiction of the res, was correct. Certificate 297-A, known as a certificate of public convenience and necessity, which authorizes the operation of common carrier motor freight service between two given terminal points exclusively within the State of Louisiana (New Orleans northward to the Mississippi state line over U. S. Highway 51), was issued pursuant to the Order of the Public Service Commission, this Commission having exclusive authority to issue such a certificate and being domiciled at Baton Rouge, within the jurisdiction of the Nineteenth Judicial District Court, where its archives and records are kept. While it is true that the defendant executed the sale of the subject Certificate in the State of Mississippi, he personally brought the contract of sale, complete in all respects, to Baton Rouge; he entered into the escrow agreement in Baton Rouge, depositing with that contract the act of sale and authorizing delivery thereof in Baton Rouge under condition that the transfer should be approved by the Commission—having previously voluntarily joined in the petition to the Commission at Baton Rouge to transfer the certificate.
We are also in full accord with the trial judge's view that the escrow agreement was a binding obligation on both parties, under the Civil law. True, it contained a suspensive condition, but "The contract of which the condition forms a part is, like all others, complete by the assent of the parties; * * *" LSA-C.C. Art. 2028, and "Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be" LSA-C.C. Art. 2037; moreover, the condition is considered as accomplished when the debtor, bound under that condition, has prevented its accomplishment, Art, 2040.
In support of its claim for damages, the plaintiff offered testimony of its traffic manager, a vice-president of the company, to prove the profits which allegedly would have been realized through acquisition of the certificate in question. This officer testified that surveys were made by him in 1948 and again in 1950, at the time negotiations were begun for the purchase of the certificate, to determine the amount of business to be anticipated over the route authorized by the certificate as well as business which would result from a tie-in at Hammond, La., with the route over which plaintiff is presently authorized to operate (i. e., from Baton Rouge eastward to Slidell) and thus permitting entry to and exit from the port of New Orleans with its vast shipping trade. A "Statement of new service, tonnage, revenue and profit," prepared on the basis of the surveys, contains figures showing the total yearly revenue with respect to tonnage actually handled by plaintiff on its present route to and from the terminal point at Baton Rouge, and the estimated yearly revenue with respect to anticipated tonnage to and from the terminal point of New Orleans. In support of the latter estimates, the traffic manager testified that plaintiff had carried on negotiations with Pan Atlantic Steamship Company to bring rubber manufactured in Baton Rouge to New Orleans, for transshipment to the eastern U. S. seaboard. The District Court restricted this testimony to the damage that would have resulted because of loss of freight between New Orleans and the various points on U. S. Highway 51, ruling that any tie-in advantage to be gained by the plaintiff could not be considered in arriving at its loss, as not having been within the contemplation of the parties. The plaintiff complains of this ruling, contending that its damage was the loss of not being able to transport freight between all points on its existing route and all points on the route covered by the Certificate, which practice is commonly permitted under the rules and regulations of the Public Service Commission; but claims that even under the restricted application of its "Statement" to the route covered by Certificate 297-A, there is shown an estimated daily loss of some $25.
The rule is that lost profits, as an element of damages for the breach of a contract, may be recovered where they are not speculative or uncertain in their nature, and are susceptible of proof with reasonable certainty.
For the reasons assigned, the judgment appealed from is amended by nonsuiting the plaintiff's claim for damages, and, as amended, is affirmed.
On Application for Rehearing.
In his application for rehearing the defendant advances the argument that subsequent to the decisions of this Court in State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708; Martel Syndicate v. Block, 154 La. 869, 98 So. 400; First National Bank of Arcadia v. Johnson, 130 La. 288, 57 So. 930, and City Nat. Bank of Selma v. Walker, 130 La. 810, 58 So. 580, cited in the opinion, the Legislature adopted Act 124 of 1936 (amending Article 333 of the Code of Practice), requiring that all dilatory exceptions be filed in limine and at the same time, so that the above cases were in effect overruled by the 1936 Act; and that the Court overlooked the cases of Browne v. Gajan, La.App., 173 So. 485, Schultz v. Long Island Machinery & Equipment Co., La.App., 173 So. 569, and particularly the case of State v. Younger, 206 La. 1037, 20 So.2d 305, wherein "this Court unequivocably held that, by virtue of Act 124 of 1936, the exception to the jurisdiction ratione personae is not waived if coupled in the alternative with other dilatory or declinatory exceptions * * *."
In the Younger case, unlike the case at bar, the exceptions were filed "only in the alternative, with full reservation of and without waiving his exception to the jurisdiction of the court, and solely for the purpose of complying with the requirements of Act No. 124 of 1936;"
Without further discussion, the other assignments of error are equally without merit, and the application is therefore refused.