For a cause of action plaintiff filed the following petition:
"The petition of H. A. Bauman, Inc., a corporation organized under the laws of the state of Louisiana, domiciled and doing business in Shreveport, Caddo Parish, Louisiana, with H. A. Bauman as President thereof, with respect represents:
"1. That H. A. Bauman, Inc., was organized on or about the time that the defendant, R. D. Tilly purchased the property described as:
"Lots 77, 78 and 40 feet off of the west side of Lot 76 on the Bauman Place Subdivision in the city of Shreveport, Caddo Parish, Louisiana, together with all buildings and improvements thereon, at sheriff's sale, for the purposes of supervising the completion of the building, which was at the time of the sheriff's sale only partially completed and unfinished, and for the further purposes of purchasing and operating said building.
"2. Your petitioner shows that through its President, H. A. Bauman, it entered into a verbal contract with the said R. D. Tilly to supervise the completion of said building, and that in compliance with this agreement, made estimates of the completion of building, said work and supervision extending over a period of June, July and August, 1930, and on August 15th, contract was entered into for part of the completion.
"3. That part of said construction was done by said contract and part was done by day labor which was supervised by your petitioner, the work being completed about December 15th.
"4. Your petitioner shows that this work was done by it under the further agreement that the said R. D. Tilly would sell and convey said property to your petitioner when finished, under the following conditions:
"That he would sell said property with improvements to your petitioner for a sufficient amount to reimburse him for his entire indebtedness against said property, plus a sum not over approximately $15,000.00 for completion of improvements, said sale to be made wholly upon terms of credit, the first note in the amount of $4000.00, being due some three years after date, and the balance to be reduced $4000.00 per annum, all bearing 8% interest.
"5. Petitioner further shows that in compliance with the said contract, your petitioner, through its president, H. A. Bauman, was placed in actual physical possession of said property, and that delivery of same was made to it under and by virtue of said oral contract to sell, and that the said H. A. Bauman, Inc., through its president, H. A. Bauman, took actual possession of said property. *Page 506
"6. Petitioner further shows that actual delivery has been made of said property thus sold under said verbal sale.
"7. Petitioner further shows that after it had complied with the terms of its agreement in supervising the completion of said building, with the exception of the refrigeration which though partially completed, was ordered stopped by defendant, it called upon the said defendant to comply with the terms of the contract, but said defendant refused to make deed to said property, positively stating that he would not make deed to said property, and petitioner shows that it has called upon defendant to make deed and that the defendant has positively refused to execute same.
"8. Petitioner shows that it is entitled to have said property transferred to it under the contract as above set forth.
"9. Petitioner shows in the alternative, and in the event the court should hold that it cannot enforce specific performance of said contract, that it is entitled to damages for the breach of the said contract in the following amounts:
"The difference between the value of said building which is well worth the sum of $75,000.00, and the cost of said building to the said R. D. Tilly, not exceeding $53,000.00, namely; $22,000.00.
"10. Petitioner further shows that the figures above set forth are approximately the value of said property and the cost to the said defendant, R. D. Tilly, and that it has lost by reason of said breach of contract the sum of $22,000.00.
"11. Petitioner further shows in the alternative and only in the event that the said contract is not enforced or monetary values not fixed by the breach of said contract, that it is entitled to be paid for its labor performed and services rendered under said agreement.
"12. Petitioner further shows that the services rendered and labor performed in supervising said building in securing the contracts during the period of the completion of said building as above set forth and prior thereto, are well worth ten per cent of the cost of the added improvements, which was the sum of $15,000.00.
"13. That the value of services in supervising the said building is the sum of $1500.00.
"14. That your petitioner desires a trial by jury in this cause, and that it is entitled to a trial by jury and that it deposits herewith the jury fee, required by law.
"15. That your petitioner relying upon said contract, had installed in said building oscillating fans, instead of the non-oscillating fans as provided in the agreement with the defendant, R. D. Tilly, the said non-oscillating fans that the contract called to be put in said building cost $11.50 each, whereas the oscillating fans cost $16.50 each, and there being 16 of them.
"16. Your petitioner shows that in the event the court does not order a sale of the said property to be made to your petitioner, it is entitled to 5 of said fans, and in the alternative and in the event that the court should hold that it is not entitled to 5 of said fans, that it is entitled to an additional sum of $80.00 for said fans.
"Wherefore, petitioner prays that the defendant, R. D. Tilly, be duly cited to appear and answer this petition, and that after due and legal proceedings had, there be judgment herein ordering the said defendant, R. D. Tilly, to convey this property to your petitioner, H. A. Bauman, Inc.; that in the alternative and in the event that the court does not order the said R. D. Tilly to convey said property or upon his refusal to do so, your petitioner have and recover judgment in the full sum of $22,000.00, together with legal interest from judicial demand until paid; petitioner further prays that in the alternative and in the event the other demands are rejected, that it have and recover judgment in the full sum of $1500.00, together with legal interest from judicial demand until paid; petitioner further prays that it be deemed the owner of 5 of said oscillating fans installed in said building, and in the alternative and in the event the court should hold that it is not entitled to said fans, that it have and recover judgment in the further amount of $80.00, together with legal interest from judicial demand until paid; your petitioner further prays that the court order this cause tried by jury and that the amount of the jury bond be fixed. Further prays for all orders necessary, for general and equitable relief."
To the petition, defendant filed a plea of res judicata, alleging that in suit No. 55,925 on the docket of the First Judicial District Court of Caddo Parish, in suit styled R. D. Tilly v. H. A. Bauman, Inc., the plaintiff in the suit at bar filed a demand in reconvention against the plaintiff *Page 507 in the former suit; and that the demands in reconvention were the same identical ones made in the case at bar. That the demands made in the former suit were rejected and the judgment has become final. That the demands in the two suits are the same and founded upon the same cause of action, and the suits are between the same parties.
The lower court sustained the plea of res judicata, insofar as the demand for specific performance is concerned, and overruled it as to the other claims.
Defendant answered, denying categorically each and every allegation of each and every article of plaintiff's petition.
After trial was had, the lower court awarded judgment for plaintiff in the sum of $80, and from that judgment plaintiff prosecutes this appeal.
The prayer of H. A. Bauman, Inc., in its answer and reconventional demand in the former suit, is as follows: "Wherefore, defendants pray that this answer be deemed good and sufficient, and that plaintiff's demands be rejected at his costs, and that there be judgment herein ordering the said R. D. Tilly to convey this property to the said defendant, H. A. Bauman, Inc.; and that in the alternative and in the event the court does not order the said R. D. Tilly to convey said property, or upon his refusal to do so, that it have and recover judgment in the full sum of $22,000.00, together with legal interest from judicial demand until paid; defendant, H. A. Bauman, Inc., further prays in the alternative and in the event that the other demands are rejected, that it have and recover judgment in the full sum of $1500.00, together with legal interest from judicial demand until paid. Defendants further pray that the court order this cause tried by Jury, and that the amount of the jury bond be fixed. Further pray for all orders necessary, for general and equitable relief."
The prayer is in conformity with the allegations of the answer and the reconventional demand.
A mere reading of the petition in the suit at bar and the prayer of said petition and a reading of the prayer in the answer and reconventional demand in the former suit between the two parties discloses that in the former suit, plaintiff in the present suit sought to recover everything it is now claiming, with the exception of $80 paid by it for electric fans, for which it has not been reimbursed. The former judgment rejected its demands and is final, and the plea of res judicata should have been sustained as to his entire demand, with the exception of the claim for $80, and the lower court's ruling in that respect is amended to so hold.
The evidence is uncontradicted that plaintiff did pay for the electric fans which were placed in defendant's building, with his consent, the sum of $80, and for which defendant has failed to reimburse it. It is entitled to judgment for the $80.
The lower court awarded plaintiff judgment for that amount and the judgment of the lower court is affirmed; costs of the court below to be paid by defendant and the costs of appeal to be paid by plaintiff.
On Rehearing.