CULPEPPER, Judge.
Plaintiff, Ronald E. Brewer, is the lessee of 5,800 acres of farm land. After certain negotiations with defendants, Eric G. Loewer, et al, for a sublease, he permitted defendants to go on the land to prepare for planting. When there was no final agreement on the sublease, plaintiff sued defendants for eviction and damages. Defendants reconvened against plaintiff and the landowners, Katherine G. Brewer, et al., for the value of improvements completed during defendants' occupancy of the land. After a trial by jury, judgment was rendered in favor of defendants against plaintiff for the sum of $50,000. Plaintiff appeals.
The issues on appeal are: (1) Did the trial judge err in allowing the testimony of an expert witness who failed to appear for a deposition? (2) Did the trial judge err in instructing the jury that, as a matter of law, neither party could recover for breach of contract? (3) Is the award excessive?
The facts are as follows. In 1966, Ronald Brewer obtained a lease on 5,800 acres of land known as the Circle B Ranch in Cameron Parish. Plaintiff cultivated approximately 1,000 acres, primarily in rice, and placed numerous improvements on the land, including a rice drier and six houses for tenants. Due to other business interests and to bad weather conditions over several seasons, Brewer decided to quit farming.
In October of 1975, Brewer and Frederick Loewer began discussing a sublease of the entire Circle B tract. Loewer wanted to expand his own agricultural operations. He proposed to cultivate approximately 4,000 acres of the Circle B in seed rice and soybeans. Loewer organized the Bauer Planting Company, Inc. to conduct operations on the Circle B. As the major stockholder and business manager, he negotiated for the company, acting subject to the approval of the other two stockholders.
Plaintiff's attorney drafted a three part proposal used during negotiations. The proposal documents included: (1) an Act of Sale of the six frame houses for $60,000, accompanied by a Mortgage in the amount of $43,000; (2) an Agricultural Sublease for a term of one year, subject to renewal for a five-year term; (3) an Act of Sale of all buildings, machinery, appliances, equipment and the rice drier located on the leased property for the sum of $148,000, accompanied by a Chattel Mortgage in the amount of $91,000.
On the following day, plaintiff and Loewer went to the Circle B and informed employees that Loewer would be taking over production and would retain all employees. Within days, Bauer Planting began extensive operations, which continued over the next three months and included plowing some 800 acres, water leveling approximately 900 acres, land grading and irrigation maintenance.
During the week following November 19, Loewer went to the office of plaintiff's attorney but did not sign any of the documents. According to Loewer, the price of the equipment comprising the rice drier was too high. He stated that he could not obtain financing to purchase the equipment because the price exceeded the appraised value. Negotiations continued on this point and Brewer eventually proposed a lease on this equipment. Loewer continued to refuse to sign the documents without a reduction in the equipment cost.
Defendants never did sign any part of the agreement. Plaintiff instituted these proceedings on February 19, 1976.
ADMISSION OF EXPERT TESTIMONY
Defendants' witness, Dr. David Black, was the sole expert to testify on the value of the improvements made by defendants. Plaintiff's objection to the admission of Dr. Black's testimony is based on Dr. Black's failure to appear at a scheduled deposition. Plaintiff contends LSA-C.C.P. Article 1426 requires a court order excusing appearance. This argument has no merit.
The record contains a written objection filed four days after the notice to Dr. Black was mailed on April 19, 1979. Dr. Black testified at trial, which started on April 30, 1979, that he did not receive the notice until approximately 11:00 A.M. on April 25, 1979, the day of the scheduled deposition. Plaintiff had known for months that defendant planned to use Dr. Black as an expert witness. Based on the above, the trial judge found that plaintiff had failed to give reasonable notice of the desired discovery and he allowed the testimony.
As we stated in Arnold v. U. S. Rubber Company, 203 So.2d 764 (3rd Cir. 1967):
IMPROPER JURY INSTRUCTIONS
Plaintiff's second assigned error requires some explanation of procedural events. At the conclusion of trial and out of the presence of the jury, plaintiff made an oral motion for a directed verdict that there was a valid sublease agreement between the parties. Plaintiff also requested the trial judge instruct the jury that since there was a valid sublease, defendants could not recover under the theories of quasi contract or unjust enrichment.
In denying plaintiff's motions, the trial judge stated:
Plaintiff's attorney then asked the following question:
"MR. BOURGEOIS: I understand."
Apparently, neither party requested written reasons for the court's ruling on the motion for directed verdict because none is contained in the record. The following colloquy occurred, however, at the beginning of trial the following day:
Subsequently, the following was included in the charge to the jury:
Plaintiff now complains that the trial judge erred in instructing the jury that, as a matter of law, neither party could recover for breach of contract. This instruction, plaintiff contends, decided a question of fact that should have been presented to the jury.
The record shows plaintiff made no objection to the trial judge's instructions as required by LSA-C.C.P. Article 1793 which provides:
On the basis of the above article, defendants argue that the plaintiff waived his right to appeal on this issue. We agree. In Bourque v. Olin Corporation, 346 So.2d 1373 (3rd Cir. 1977), we stated:
While we agree that the requirements of LSA-C.C.P. Article 1793 are applicable in this case, we give further attention to this matter because the jurisprudence of this State establishes that the right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss or forfeiture thereof. Champagne v. American Southern Insurance Company, 295 So.2d 437 (1974).
We have considered the pleadings and the evidence and find the trial judge was correct in his instruction. Plaintiff and defendants never entered into a contract for the sublease or for the sale of the subject property. The legal effect of the failure to execute the written agreement is a matter of law, properly determined by the trial judge.
As was stated in Stewart v. Schmauss, 191 So.2d 882 (1st Cir. 1966):
DAMAGES
Dr. Black was the only expert witness to testify in this case. He explained and gave reasons for his appraisal of the value of the improvements and work performed by the defendants. In light of his testimony, we cannot say there was any abuse of the much discretion granted to the trier of fact in fixing damages. Coco v. Winston Industries, Inc., 341 So.2d 332 (1976).
For the reasons assigned, the judgment appealed is affirmed at appellant's cost.
AFFIRMED.
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