Opinion
No. 17820.
June 7, 1943. Writ of Certiorari Denied June 21, 1943.
Appeal from Civil District Court, Parish of Orleans; Rene A. Viosca, Judge.
On application for rehearing.
Rehearing refused.
For former opinion, see 13 So.2d 519.
Miller Bloch, of New Orleans, for plaintiff-appellee.
Liskow Lewis, of Lake Charles, for defendant-appellant.
In an application for rehearing counsel for defendant state that we erroneously adopted as a premise that the oil which was delivered by Pan-American Production Company to Roshko was sold and that the former had received, or would receive, payment therefor. Counsel state that "the record does not support that premise but merely shows the delivery of oil having a certain value."
We are suprised by this statement. The case was submitted on an agreed stipulation reading, in part, as follows: "This case should be submitted on the allegations of the petition as admitted in the answer, and the documents listed above, * * *."
In Article VII of plaintiff's petition it is alleged that "defendant claims that it sold to said Roshko for use by him on the said land * * *" certain oil.
Defendant answered this allegation as follows: "Defendant admits the allegations of fact set forth in Paragraph VII of plaintiff's petition * * *."
If defendant desired to contend that the oil had not been "sold" to Roshko but had been delivered to him without charge, to be used in drilling operations, surely this contention should have been set forth in answer to Article VII of the petition. It should not have admitted that its contention was that it sold the oil but that, for other reasons, it should be required to pay the royalty. The word "sold", as it is used in the petition, clearly indicates the payment of a purchase price or the obligation to pay a purchase price. No where, in this entire record or in the brief of defendant, do we find this contention set forth, or even hinted at, except in the application for rehearing.
The rehearing is refused.
Rehearing refused.