Gulf Refining Co. v. Bagby

The defendant has applied for a rehearing, on the ground that the court was in error in its finding that the sum of $100 was deposited to Bagby's credit in the Lathrop Bank on March 11, 1940. It is said in the petition for a rehearing that the receipt which the Lathrop Bank sent to the Gulf Refining Company, on March 11, 1940, and which was received by the Gulf Refining Company, in Houston, on March 13, 1940, was not sufficient proof that the $100 was deposited to the credit of Bagby. A reading of the receipt again, in the record, leaves no doubt that *Page 280 it furnished to the Gulf Refining Company sufficient proof that the $100 was deposited in the bank for the account of Bagby on March 11, 1940. It is declared in the receipt that the Lathrop Bank "acknowledges receipt of the sum stated * * * for deposit to the credit of" Logan H. Bagby, Jr., on that day, in settlement of the rental due under the oil and mineral lease executed by W.F. Campbell to D.E. Moore, on March 13, 1933, on 202 acres of land in sections 25 and 26, in T. 3 S., R. 11 W., in Beauregard Parish, Louisiana, "to maintain said lease in force for the period stated without drilling operations." The receipt was signed by Frank L. Porter, as vice president of the Lathrop Bank, and was dated by him March 11, 1940, and was mailed by the bank to the Gulf Refining Company, in Houston, and was received there by the company on March 13, 1940. The company was advised thereby that the sum of $100 was received by the bank for deposit to the credit of Bagby in ample time to prevent a forfeiture of the lease. It was stipulated in the lease that the Lathrop Bank was the agent of the lessor, to receive the rental, and that the bank would continue to be the depositary, regardless of any change in the ownership of the leased land. By the terms of the lease the Gulf Refining Company had the option to tender the $100 to the landowner or to deposit it with his agent, the Lathrop Bank. The Gulf Refining Company, in depositing the amount with the bank as agent for Bagby, was not obliged to go behind the counter and compel the bank's bookkeeper to give Bagby credit *Page 281 for the amount on the books of his agent, the Lathrop Bank. It is said in the brief in support of the application for a rehearing that this receipt "contains no language saying that credit was given to the defendant by the bank." The receipt does contain the direct statement that "the amount stated", which was $100, was received for deposit to the credit of Bagby on March 8, 1940, for the purpose of preventing a forfeiture of the lease. The receipt did not contain any suggestion that the bank did not accept the check in lieu of coin or currency for the $100. The same amount had been sent by the Gulf Refining Company to the Lathrop Bank in the same way every year from and including the year 1934; and in every instance the check was accompanied by a similar receipt, which was signed by an officer of the bank and returned to the Gulf Refining Company without any suggestion that the money should be remitted in coin or currency. The seven receipts for all of the seven years were introduced in evidence on the trial of this case, to show the system with which the Lathrop Bank had received and accepted the deposit every year.

It is said in the brief in support of the application for a rehearing that the receipt for the deposit of $100, dated March 11, 1940, "was admitted over defendant's objection." The only objection made to the introduction of this receipt in evidence was "that the petition sets forth no right or cause of action." That objection — and that objection alone — was made at the beginning of the trial when *Page 282 the plaintiff offered the first document in evidence. The attorney for Bagby then requested that his objection, that the petition did not set forth a right or cause of action, should be deemed applicable to any and all evidence; and it was so ordered. No further objection was made by the defendant to the offering of any evidence until the attorney for the plaintiff offered the voucher checks, marked Plaintiff A, B, C, D, E, F and G, being, respectively, the checks for the remittances for the years 1934, 1935, 1936, 1937, 1938, 1939 and 1940. The attorney for Bagby then said: "I understand that the same objection heretofore made applies to all of these documents." The judge said: "Objection overruled." No further objection was made by the defendant to the offering of any evidence until the attorney for the plaintiff offered the documents marked Plaintiff H, I, J, K, L, M and N, being the receipts signed by the vice president of the Lathrop Bank and returned by the bank to the Gulf Refining Company for the deposits made in the years 1934, 1935, 1936, 1937, 1938, 1939 and 1940, respectively. The attorney for Bagby then said: "Same objection; the objection has been made general." And the judge said: "Objection overruled." That was the only objection that was ever made to the offering of these receipts in evidence.

It is said in the brief in support of the application for a rehearing that this receipt for the deposit of $100, dated March 8, 1940, "first came to light, as far as the defendant was concerned, at the trial of the case." It is said that the Gulf *Page 283 Refining Company had the receipt in its records and therefore knew what was intended to be proved by the receipt, and that the defendant did not have such information. The defendant testified on the trial of this case, in response to questions propounded to him by his attorney, as follows:

"Q. Did you receive any advice that the check had been deposited in the bank in Missouri? A. Yes, I received a deposit slip from the Gulf Company.

"Q. That was on or about when? A. It was about the 9th or 10th, somewhere, as I recall." The "duplicate deposit slip" that Bagby received from the Gulf Refining Company was the duplicate of this receipt which accompanied the voucher check, sent to the Lathrop Bank by the Gulf Refining Company on March 8, 1940.

The defendant has filed with his petition for a rehearing a motion to remand the case to the district court for the purpose of allowing the parties to offer evidence on the question whether the deposit of $100 which was received by the Lathrop Bank on March 11, 1940, was in fact credited to the account of Bagby on the books of the bank. Accompanying the motion is an affidavit signed by Frank L. Porter, vice president of the Lathrop Bank, in which affidavit Mr. Porter says that the $100, which was represented by the check, received by the bank on March 11, 1940, for deposit to the credit of Bagby, was never in fact placed to his credit on the books of the bank, but "was credited to escrow account in the Lathrop Bank on March 18, 1940." *Page 284 The purpose of the motion to remand the case is stated specifically in the motion to be to allow Bagby "to offer proof in support of the recitals of the affidavit hereto attached." It is not contended that the recitals of this affidavit constitute newly discovered evidence. The purpose of remanding the case therefore would be to permit the affiant to contradict the plain and necessary implication in the receipt which he signed and sent to the Gulf Refining Company, on March 8, 1940, that the deposit of $100 was received and accepted by the bank as the agent and for the account of Logan H. Bagby, Jr., to prevent a forfeiture of the lease. There is no good reason why the court should grant a rehearing and remand the case for the introduction of evidence to support the recitals in Mr. Porter's affidavit. The rule is very general and well settled that evidence which was not offered on the trial of a case, and which therefore was not in the record when the case was decided on appeal, cannot be considered as a ground for granting a rehearing when the evidence is presented for the first time with the application for a rehearing. Succession of Broom, 14 La.Ann. 67; Breaux v. Negrotto, 43 La.Ann. 426, loc.cit. 438, 9 So. 502, loc.cit. 506; Anse La Butte Oil Mineral Co. v. Babb, 122 La. 415, 47 So. 754; United States v. Maxwell Land-Grant Co., 122 U.S. 365, 7 S. Ct. 1271, 30 L. Ed. 1211; 4 C.J.S., Appeal and Error, p. 2032, § 1420, and p. 2034, § 1422.

The petition for a rehearing and the motion to remand the case are denied. *Page 285