author: 8t. Raul, Judge.

text:
    NO. 7815.
    City Of New Orleans. Vs. Robert A. Hicks.
    State of Louisiana. Court of Appeal Parish of Orleans.
   OBIHIOH.

8t. Raul, Judge.

Defendant's building, facing two of the most frequented public, streets in the City of Hew Orleans, was destroyed by a fire, which left standing only the outside walls.

As these walls were a menace to the public safety, the municipal authorities ordered defendant to demolish them at once. But the latter (for reasons immaterial) failed to comply; whereupon bhe work of removal was done at the expense of the city, which now seeks to recover same from defendant.

The defense is two-fold, 1. That the only authority for condemning the walls lay in Act 175 of 1910, which authority plaintiff failed to exercise; and E. That plaintiff paid too much to have the work done.

I.

As to the amount paid for the work, the evidence satisfies us that it was a fair price. Defendant was given every reasonable opportunity to bring forward at the time thpse who (it is said) would have done the work for leas; but again he failed to do so. luid testimony given long after the event' is of course far less convincing than the silence and inaction of the time.

IX.

If any special authority were needed to empower municipalities to suppress things dangerous to the public safety, it would be found in Acts 76 and 156 of 1910 and in the srdlnanoes paassd in pursuance thereof. But no auch apsolal authority is needed, ainoe it is of the essence of all governments to provide primarily for the puhlio safety; Salua Populi Suprema hex.

So that the very existence of a municipal government supposes necessarily a right and power therein to suppress in some way or other anything dangerous to the life of those who use its public streets; and the only question that can he, is whether the aforesaid Act 175 of 1910 presorihes the only way in whioh that right may be exeroised.

Said act in effect provides that "buildings and other structures" within a municipality, which by reason of their "dilapidated or dangerous" condition become^ a menace to thepublic safety, may be oondemned by the oounoil of said municipality; and after such condemnation the owner shall have full ten days notice to appear at the next regular meeting of ssid council and show cause why said building or structure should not be demolished; with further right of appeal to the courts within ten days.

Prom our reading of said act we are of opinion that same applies especially to "buildings and structures" whioh still stand as a whole and are still capable of use as they stand. (See Section 5); and not to the remains and isolated parts of buildings ana. structures whioh have oeased to exist as such.

We regard said.aot wt as intended to restriot in anyway the rights and powers of municipalities, hut on the contrary as afording a new remedy for the condemnation and demolition of buildings still capable of use, but dangerous when used, by reason of their old delapidated condition. And in our opinion said aot does not Impair the ordinary and speedy method of suppressing dangers to those who use the publio streets, which arise suddenly by reason of the partial destruction of large edifioes by fire or otherwise; and the long delays and cumbersome proceedure provided by the act convince us that it was not intended to apply in such cases; where haste is above all things essential to safety.

We think the judgment aopealed from is correct.

Judgment Affirmed.

New Orleans La, May 17th, 1920.


source: Caselaw Access Project

author: By Dlnhelsplel. J.

license: Public Domain

text:
    Court of Appeal - - Parish of Orleans
    No. 7818
    Mrs. Annie Frey v s Thomas J. McDonald
    By Dlnkelapiel. J.
   By Dlnhelsplel. J.

This controversy was instituted by Mrs. Annie Frey, * femme «ole, against Thomas J. MoDonald, from whom she claims the sum of $1,000.00 as damages alleged to have been suffered by her- through a-wrongful issuance of a writ of provisional seizure, under which writ certain household furniture enumerated in her petition, the pro-' pert/efpladntiff, had been seized and held by the Mil until final judgment of said suit above referred to, and which suit was eventually decided in favor of plaintiff as is shown by reference to the record of the Firet City Court, being Ho. 78554 of the docket of that Court, and which record is made part of the record in this case.

Defendant filed exceptions of vagueness and no cause of notion to these proceedings, which being overruled by the judge a quo, he thereafter filed his answer in which he denies being indebted to Mrs. Frey, and specially denies. that her furniture had been unjustly or illegally seized, but on the contrary same was seized for probable and just oauee. v. V

Further answering, defendant qMwgMKSlMEMMMgn' a number of allegations, which in the opinion of the judge a quo could only have been pleads* in the original suit, and that suit having been decided adversely to defendant, and he taking no appeal from that^sxii^udgment, therefore the MMMMwr could not again be MMmA in this proceeding, and under the ruling all evidence offered by the defendant in order to maintain these allegations as contained in his answer, which would have resulted practically in a retrial of the iseuee of the original suit, were ruled out and disallowed, and a judgment for $50,00 .was rendered u for actual damages in plaintiff‘s favor,

From this judgment! defendant hae appealed, and in her answer to the appieal plaintiff asks that same he increased to the sum of $500.00.

In our opinion the bnly question involved in this case, outside as to the amount of damages allovred plaintiff by the district jijdge, is whether or not. he was correct in his rulings in excluding defendant's proof, in connection aa to what took place at the time of the original suit, under which the seizure was made of plaintiff's furniture, on the grounds that suit was res adju-dicata, and no evidence of the character sought to he introduced by defendant oould therefore he heard in this proceeding, the sole issue involved, being whether or not plaintiff is entitled to any damages for the wrongful seizure, and if so, how much.

Thie question has been passed upon frequentiy by our Supreme Court, and in XXs a oase very similar to this the Court held, "The judgment of the court dissolving is a writ of provisional seizure >&* final and conclusive as to the illegality of ite issuance." Ivers vs. Ryan, 43 Ann. 33.

The decision in the rent 3uit, dismissing the aotion and dissolving the writ, le conclusive on the question that the latter was wrongfully issued. The judgment is r-ee adjudicate on that subject. Cretin vs. Levy, 37 Ann. 183; Ross vs. Goodman, 36 Ann. 133; Barrimore vs. McFeeley, 32 Ann. 1182.

On the question of damages oounsel for defendant, in argument and in brief filed, referred to a number of authorities which are to the effect that, allegation in the petition for damages being suffered by plaintiff due ■to the wrongful seizure of property, are merely conclusions of law, and unlee3 substantiated by proof, must fail. In our opinion that proof was made by plaintiff and sustained by her, an shown by the record of the original proceedings in the First City Court, which record is made part of thi9 suit.

In so far as the amount of damages suffered by plaintiff 5 s concerned, the Judge a quo allov/ed the sum cf #50.00, which,in view <5f the authorities above referred to, said amount of damages are actual expenses and loss realized from the seizure itself, we believe to be reasonable. 42 Ann. 33; 37 Ann. 183.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and is hereby affirmed. Defendant to pay costs of both courts.

Judgment affirmed.


author: CHARLES J. CLAIBORNE, JUDGE.

text:
    Charlea'7. Claiborne, Judge.
    LOUIS HY. GOSSERAND VS. EMILE CRESPO et al.
    No. 7829
    May 31st, 1920.
   CHARLES J. CLAIBORNE, JUDGE.

Plaintiff, an attornsy at law, claims attornsy's fsss ’cased upon ths following contract:

"Inasmuch as ws, the undsrsignsd, inhsritsd from Malvina Songy Crsspo, Joachim B. Crespo, Isadora Crespo, and Joachim Crsspo certain property which ws now hold in indivisión, and, as there is absolutely no conflict in the interest of any of us in this property, and, inasmuch as we are all desirous to bring about a partition of the property, we hereby jointly employ L. H, Gossorand, Esq. to represent all and each of us in bringing about this partition, and agree that his fee shall be paid out of the mass".

This contract is signed by Emile Crespo and four others.

Plaintiff avers that by virtue of said contract he rendered valuable services and was Actually engaged in the performance of his contract when he was notified by defendants that they repudiated their contract with him,and did not intend to use his services any longer, and that they had employed other counsel; th«> by reason of his illegal discharge he becomes entitled to all the fees to which he would have been entitled if he had been permitted to perform his whole contract; that the property to be partitioned was of the value of t42266.36¡ that he is entitled to a fee of Eight Hundred Dollars payable by each defendant according- to his virile share.

Defendants filed a beneral denial and specially averred:

"that the said L. H. Gosserand while knowing that your respondents had already employed the firm of Edrington and Edrington as their legal counsel came to your res-pondsnts and suggested to them that the bringing of a partition suit was unnecessary, and that he, as attorney for Sidney Crespo, could bring about an amicable adjustment of the differences between your respondents and Sidney Crespo by having made a partition in kind satisfactory to all parties; that under his proposal no partition suit would be brought, but that, on the contrary, he would prepare a tentative partition in kind to be shown by a map, and that, thereafter, if satisfactory to all parties, an act of partition would be agreed upon and passed; that in violation of said agreement and contrary thereto the said L. H. Qosserand immediately instituted a suit against Sidney Crespo together with your respondents as plaintiffs with their brothers Emile and Allen Crespo, which said proceedings were unauthorized, contrary to your respondent's"understanding with the said Gosserand and against their wishes and consent; that upon being notified of the action taken by the said Gosserand in violation of his agreement respondents immediately had the suit brought by the said Gosserand against their consent withdrawn and notified the said Gooserand of said fact; that the said Gosserand having violated his agreement with your respondents is not entitled to any compensation whatsoever.*

The trial judge was of the opinion that the plaintiff hacheen

"discharged without good or sufficient cause"

and rendered judgment in his favor. Defendants appealed.

This Court has decided in the case of Louque vs Dejan, 8 Ct. App., 430 that

"a contract with an attorney at law, for an indefinita period and without any.provisions for absolute compensation, Is not a hiring of labor, under Civil Code 2749 (2720), bjtt a mandate governed by Artiola 3028 Revised Civil Code, and revocable at the will of the prinoipal",

This dsoision is basad upon the following' euthORlKiM: 14 A., 330; 41 A., 75, These decision have been affirmed in Louque vs Dejan, 129 La., 519. See also Thornton on Attorneys at Law Sec. 138 p 237.

6 C. J., 673 & 185:

"The relation of attorney and client is peculiar in that the law permits the termination thereof in a manner not recognized in other contracts. Either party may dissolve the relation for cause, and the client may dissolve it wilfchout cause". 45 Am. Rep., 263.
£193 • "The law is well settled that a client has the right to discharge his attorney at any time either with or without cause x x The relation between attorney and client is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity, the judgment, or the capacity of the attorney". C.J., Agency 6 151 p 527; 4 Cyc, 954.

The plaintiff is therefore not entitled to a judgment for the full value of the services he would have rendered had he been pármitted to perform them. He is only entitled to the value of services by him rendered up to the date o* his discharge. 4 Dalloz Codes p 1097&79.

The evidence is that the contract of employment above ^j^quoted was signed on March 9th, 1919; that plaintiff prepared S\his petition for 8 partition; that the order thereon apnoir.t-ing a ITotary and appraisers was signed on March 11th, 1919; $hst the petition was three pages iong and comprised only 'fchi'*® tracts of land; on March 13th, he was notified by ‘one J j ^ of the defendants not to represent her any longer; on March 19 Vvl two of the heirs wrote to him cancelling their agreement; on £ <\\xY C\^ ^4 511 Inventory was made and report- of experts filed; É\ S on April 1st 8 family meeting was held; on May 19th, the suit wa* diicontinued. Ho oa^t of the record bears the signature of plaintiff, excep't the petition for rjartition and the answer

We are of opinion that a fee of Two Hundred^polxars to be paid jointly or one fourth each by the four defendants will be reasonable compensation.

The answer of the defendants that the plaintiff was employed to make a partition in kind, that he was to have a map made of the property,and submit it to the defendants, and if the conclusion was reached that no partition in kind was possible, that then plaintiff was to he discharged, is not borne out by the evidence. In the first place the contract does not so state; it is denied by the plaintiff and was not believed by the trial judge. Besides, in-their letter to the plaintiff, defendants write under date of March 19th, ten days after the date of the contract and eight days after filing the sui-t, as follows:

have never discharged Edrington & Edrington, attorneys, and until such time as we discharge them as our attorneys we cannot employ you. Therefore consider our agreement cancelled”.
■’Signed11 Allen Crespo
Emile Crespo.

Hot a word is said protesting against the filing of the suit, or about the absence of a map. Mr. Payne, a civil engineer, at the request of plaintiff, called upon the defendants, told them the property could be divided in kind, and offered his services to them to make a map; they refused^on the ground that they would do nothing without the approval of their attorney Edrington, and declined to make a contract with Mr. Payne to prepare a map.

It is therefore ordered that the judgment herein be amended by reducing the amount allo'^ed plaintiff from Eight Hundred Dollars to Two Hundred^Dolíí^s, and as thus amended that it be affirmed, the plaintiff and appellee to pay the costs of appeal.

May 31st, 1920.


author: St. Paul, Judge.

text:
    NO. 7830
    MRS. ULYSSE BERTHELOT VS HOME BUILDERS REALTY CO, INC.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIJÍIOH.

St. Paul, Judge.

Plaintiff agreed to purchase and pay for in monthly instalments, certain swamp lots, all payments to he completed in about two years under pain of forfeiture; whereupon defendant was to execute a deed for same. Plaintiff additionally hound herself not to erect any building on said lots to cost less than a certain sum, and not to sell to persons objectionable to defendant.

Defendant agreed to pay all taxes for one year from date of contract, and guaranteed tb build levees and canals and cut certain streets and boulevards, or return the amount paid with 10"¿ added.

It was specially agreed that time was of the essence of the contract between the parties.

I.

when plaintiff had completed her payments and was ready for her deed, defendant had practically done nothing in the way of building canals and levees to drain the land; much less had it cut and laid out any streets and boulevards; so that plaintiffs lots were not even discernible from the surrounding highlands and still less oould they be approached. And what is even more to the purpose defendant was not ma':ing or pretending to males any effort whatever to carry out its part of the agreement having long before ceased all such efforts.

Wherefore plaintiff maleas this claim for tha return of her money.

IX.

It is clear from the nature of the contract (and confirmed-hy the evidence) that plaintiff was not engaged in a land speculation hut in the purchase of a site for a home in a projected residential section; and henoe that the improvements were to have heen completed within a reasonable time.

Row what would he a reasonahl'e time under the circumstances is fixed hy that provision of the oontraot itself relative to the payment of a year's taxes hy defendant; for the presumption is that defendant meant to pay .the taxes only so long as plaintiff could not have the use of the property; and thi3 is confirmed hy the repeated promises hy defendant that the improvements would he completed within that year.

III.

But the parties had agreed that time was of tha essence of the contract between them; and so indeed it was for plaintiff who was waiting to start the building of her home.

She trial judge therefore properly excluded any evidence tending to excuse defendant for failure to perform its part of the contract within the time above mentioned; the it further time at this stage of the- controversy would he in effect to excuse it altogether from eve/j/performlng its obligations under the contract.

The judgment appealed from must therefore he affirmed.

Judgment Affirmed.

New Orleans La, May 21st, 1920.


text:
    Electrical Supply Company- -vs-Board of Commissioners-Port of New Orleans.
    No. 7831.
    Court of Appeal Parish of Orleans.
    By Dinhels-plel. J.
   This suit is based upon a cliam of the Electrical Supply Company against the Eoard of Commissioners of the Port of Hew Orleans, commonly styled the Dock Board, amounting to $1.835.00., of whioh $1,750.00. is alleged to be the agreed price of a Direct Connected Second Hand Generator and Engine, and the balance $185.00. representing money which the plaintiff claims to have paid out to repair certain damage said to jjave been caused to the machinary by defendant.

Defendant &laim3 that the sale v:as made subject to the guarantee and to a successful ten hour test of the generator to be conducted after same had been installed on the dredge Bi<Stey.

Defendant claimed that the test proved to be unsatisfactory and alleged specially oweing to it's imperfect construction that same did not work properly, hence it was not indebted to plaintiff for the sum claimed for the purchase price paid sni nor was it indebted to plaintiff for the amount claimed for repairs anasmuch as the damage necessitating said repairs was not caused by any fault which could be attributed to 11

From a judgment top the District Court in favor of plaintiff for the full amount of it's claim defendant has appealed to this Court.

From an examination of the correspondence which passed between plaintiff and defendant, which letters form part of this record, defendant accepted a bid from plaintiff to furnish it witli a Direct Lundel 8-9-K- Í- Generator for the sum of il.750.00., delivery to he immeadiate, ss.id purchase being condition upon plaintiff furnishing usual guarantees, and after a ten hour test of the generator and 3ame installed on the Dredge Eixey.

Pithin a week after the receipt of the above letter plaintiff replied thereto acknowledging there bid of Í1.750.00. had been accepted by defendant for this particular generator, and they guaranteed the outfit to with stand a ten hour test of the generator at it's full rate of capacity. In this leter they stipulated that the test be made immeadiately upon receipt of the outfit on the Dredge Dixey.

On March 4th. IS of the same year, plaintiff by letter, notified defendant that it was then ready to run the test of the generator on the Dredge Dixey, asked to be advised when defendant would possibly be ready to receive same and to supervise it.

To this communication plaintiff received a reply dated March 7th., in which it was informed that defendant vías not ready for the test,but would have same made in a few days there after.

Further correspondence shoas that a test had been made on March 13th., which plaintiff claims to have been successful. But,on March 30th., plaintiff was notified that while a test of the generator had proved satisfactory, that oweing to the leakage of oil from the engine, same heated badly and therefore was not satisfactory, consequently the outfit had been rejected and plaintiff notified to remove same.

In the letter just referred to to mention was made, that one of the pitman rods had been bent, while the preliminary test was being made, responsibility'for which damage was disclaimed by defendant.

The entire correspondence from defendant to plaintiff was signed by A. C. Bell, Assitimnt Engineer, while the evidence shows that the negotiations for the purchase of this outfit was conducted by Kr. Bell, as was the inspection of same, at which inspection he was assis-ted by kr. Klein, cne of defendant(s superintendents and which inspection was made prior to the writing of the letter accepting plaintiffs bid for the supply of this particular generator and engine.

An examination of the testimony in this record also proves, that the engine complained of was not only second hand but of a type known as osoillating engines,' a type of engine very much out ofd date and very little used at the time of this transaction, and these facte, however, were known to defendant, who had same Inspected by two of its officers previous to their aeeeptance of the bid for the supply of this outfit, and of whioh this very engine formed a part.

The uncontradicted evidence of Hess. Ellgutter and Hart is to the effect that an engine of this type leaked or dropped oil lubricating oil and this evidence is confirmed by the testimony of Mr. Tierney, who also testified that said engine carried an oil guage, whioh if properly handled will result in keeping the bearings properly lubricated and a release of any exoees water, therby minimizing the faults which defendant complained of and the existance of which is given as a basis for the refusal of defendant to complete the purohase of this outfit.

Counsel for defenadant basts the right of defendant to complete the purchase of this plant under provision of Article 3460 R. C. C. which provides; * Suspended when buyer has right of inspection or trial. Things of which the buyer reserves to himself ths view and trial, although the price be agreed on, are hot sold, until the buyer be satisfied with ths trial, whloh^a kind of suspensive condition of the sale."

A careful examination of this record, howevor, does not satisfy us that this contraot comes under the provision of this article, for the record clearly ehowe, that the engine, as far as the engine complained of is . onoerned, same Rad been seen, inspected and examined by the Assistant Engineer of defendant and also a Superinten -dant of defendant prior to their letter to plaintiff, wherein plaintiff's bid for this particular outfit had been accepted* The only reservation made in that letter was that, " the usual guarantee furnished and a ten hour test of the generator be allowed". Whilst it is true there is no explanation in the record' as to the technical meaning of the term, "usual guarantee", as used in the letter of acceptance above referred to, our opinion is that these terms mean no more nor less than that where an engine has been examined and inspected by the prospective buyer, that name is warranted to be the character of similar engines of the type, which in this oase was of the osoillating type and character, and that same would do the work in the same manner and to the same extent as engines of this type are sailed upon to perform.

The evidence convinces us that this class of engine throws out or leaks oil, but with proper attention this leakage oould.be minimized, still as before MX stated the engine was second hand to the knowledge of the Asistant Engineer of defendant, and which had been examined and tested under his supervision by one of def-endant's employees selected for that purpose, and i it's type and peculiarities ought to have been known to both of these gentlemen.

It is true that there was an attempt on behalf of defendant,to show that Mr. Bell was not a mechanical engineer, but the testimony of Mr. O'Reilley, who was then chief engineer of defendant , is to the effeot that Mr. Boll was selected by him to make the purchase of the engine and generator and to make the necessary contracts in connection therewith. Ifor is there any evldenoe that Mr. Klein was not a capable .engineer who knew the type of engine which was used.

In so far as the tan hour teat or thw generator itself is concerned, it is admitted that that test was carried out and same had proved satisfactory.

We are therefore of the opinion that plaintiff has oomplied with it's contract in every way in so far as the sale of this outfit is concerned, and we agree in the opinion of His Honor, the Judge a quo, who saw the witnesses, heard their testimony , and we believe there -for that they are entitled to payment for the amount claimed.

We are also of the opinion, that the damage oooae--loned by the piston rod, whioh caused the machinery to get out of order, was due entirely to the fault of defendant through subjecting same to a greater and “steam pressure than the engine could bear, and therefore they defendant should be held liable and compelled to pay for having said engine put in order.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby affirmed. Defendant and appellant to pay costs of both Courts.

(Judgment Affirmed)


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge *
    Mrs. Joseph B. Gribble vs. Mrs. David Haas, Appellant.
    No. 7835
    March 8th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is an appeal from a judgment of ejecment against a lessee, and the plaintiff, appellee, has made a motion to dismiss the appeal on tiro grounds: lo that the order for a suspensive appeal was obtained too late, and 2o that the bond is not sufficient.

I.

The facts are that the judgment of ejection was rendered December 22nd., 1919, and signed on December 24th., 1919; on December 24th., 1919, the Court granted the defendant an order for a suspensive appeal on her furnishing bond in the sum «’■<’ two hundred and fifty dollars which she furnished.

The plaintiff filed, in this Court, a motion to dismiss the appeal in this causé"on the ground 'that it was not taken within the delay provided by la.w, to-wit, twenty-four hours after rendition of judgment".

Act 52 of 1900, page 84 "relative to the manner of forcing tenants to give to the proprietors possession of the leased property" containáthe following language:

"If the tenant does not comply with the judgment within twenty-four hours after the rendition of said judgment, it shall be the duty of the justice or judge who rendered the judgment to issue forthwith his warrant, directed to the constable, marshall or sheriff of his Court, commanding him forthwith to deliver to the lessor the full possession of the leased premises, etc."
Act 313 of 1908, page 479, repeats the same language.

Act 49 of 1918, page 71, is a repetition of the Acts of 1900 and 1906 in this respect.

In the case of Audubon Hotel Co. vs. Braunig, 119 La., 1070, the Supreme Court on p. 1074 said;

"More than that; construing Act No. 52 of 1900 p. 84 with Rot. Stat.% 2157 it is manifest that the right to appeal suspensively must be exercised "within 24 hours after the rendition" of the judgment, and it is coneéded that though the judgment here in question was rendered on October 17t% no application for an appeal was made until Octooer 23d, aid that no bond was filed until October 24th. The law is plain, and the capacity of the General Assembly to enact it is unquestioned, and, when we compare it with the pre-exist-ing statute, we find no reason to doubt that it was intended to mean what the words imply, to-wit, that it is the duty of a judge to order the execution of a judgment of ejection, if it has not been complied with in the meanwhile, at the expiration of 24 hours after its rendition, - provided, always, the defendant does not suspensively appeal within that time. It will be observed that there is no question ofdsys, or parts of days, to be considered. The lawnaker deals with hours, and, unless it should appear that the 24 hours succeeding the rendition of the judgment include time during which the defendant could not appeal, we are of opinion that, in order to suspend execution, the appeal must be taken within that time, x x x We therefore conclude x x that even had defendants been otherwise entitled to such appeal, they lost that rigjit by failing to give bond within 24 hours after the rendition of the judgmsut etc.•

In the case of State ex Rel Mallu 8 Ct. App.,412 , this Court certified to the Supreme Court the following question:

lo "Does the delay for an appeal under Act 313 of 1906, begin to run from the time a judgment is orally announced, or from the time the minute entry thereof is made? 2o 3o 4o "Does a judgment of ouster under said Act require the signature of the judge and if it does, does the delay for an appeal run from the time of such signature?"

Tha answer was Riven in 128 La., 914.

Tha answer to the first question was, p. 915:

"From the time that the judgment is announced or rendered by the Court."

The answer to the 4th. question was as equally unambiguous, p. 918:

"Tha delay for an appeal from a judgment of eviction, as we have hereinbefore answered, runs from the time of the rendition, and not from the signing of the judgment".

In applying this opinion this Court said in 8 Ct. App., p. 416:

"This Court's appreciation thereof is to the effect that the twenty-four hour's delay for appealing from a judgment of onster runs from the moment it is orally rendered and not from the time of the signature thereof. Consequently the application for a suspensive appaál having been made more than 24 hours after the rendition of the judgment, it was made too late and was properly refused by the judge of the lower Court."

The Appellant asks us to disregard the above decisions because they are in conflict with the former jurisprudence which had established that there ms no appeal from a final judgment until it was signed. We admit that such was and is the jurisprudence. in relation to ordinary judgments mentioned in the Code of Practice. I'Louque Digest p. 15 (b) 1; 44 A., 395; 52 A., 498, 1639; 1 H. D. p 23 No. 12.

But as was said by the Court in the Mallu case 128 La., 917: "The Legislature has made a distinction between the mode of procedure in ordinary dases and that for the possession of premises by landlords against their tenants".

At any rate, the former jurisprudence was only a matter of interpretation of the law as it then stood; and the new jurisprudence of the law as it now stands. We are bound by that jurisprudence as a question of public policy and in order that the law diall be the same in all the Courts of the State.

It has also been argued that the motion to dismiss cannot be sustained because it asks that the appeal be dismissed, while it is conceded that if appellant has not perfected a suspensive appeal, his appeal is good as devolutive. The appeal is divisible into a suspensive or a devolutive appeal; and -while the Court may dismiss the appeal as suspensive it may maintain it as devo-lutive. 1 La. Dig, p. 468&300. Appellant^Sdlstinctioh is too subtle for the interests of ordinary practice.

He also argues that the motion could have been made only in the District Court. When the motion to 'dismiss requires the taking of evidence the lower Court alone can entertain it; but when it is based upon a question of fact or law patent upon the transcript, the motion may be made in the District Court or in the Appellate Court. In the last case it would lead to wasteful loss of time and money to require the motion to be made in the District Court subject to review by the Supreme Court, when the latter Court is already in a position to pass upon the question raised. In the case of State ex rel Feibleman, 45 A., 1426, the Court said on p. 1429;

"In the same cease (State ex rel Gill, 34 A., 90) this Court distinctly said: "Where sikeh bond (i.e.. oond for suspensive appeal) is insufficient, an appellee has two remedies, either to move for a dismissal of the appeal in the Appellate Court, or for t$e execution of the judgment appealed from in the Court of the first instance. Where he resorts to the firwt remedy the matter becomes finally adjudicated upon by th# superior tribunal. Where he employs the second remedy the action of the inferior court is revisable either on appeal, or on application for remedial process".

It seems to us that the same principle should apply in cases where the appeal is taken too late. See also 42 A., 1109.

In the following cases the Supreme Court entertained a motion to dismiss an appeal on the ground that tne bond was not sufficient in amount. 51 A., 1548; 49 A., 360; 39 A., 579; 36 A., 370; 20 A., 340; 12 A., 175; 5 A., 360; 2 A., 462; 5 La., 129,

In the Succession of Bey, 47 A., 219, a motion was made to "dismiss the appeal" on the ground ststed pn p. 223:

"4 That the suspensive appeal herein taken was not asked for in time, as it was not taken within ten days after tlx Judgment appealed iron wee ei*ted".

fix court raid,

**fix appeal cannot be diasdeeed on tlx fourth ground stated* Sx axount of tlx bond xas fiad by tie District Court, sad tlx appeal, if not good as a snapensisa appeal, stands good as a devolutive appeal**

II*

Oar oonolnslons upon tie first ground of disxisssl sake it nmaooesssry for ns to oonslder tie second groando

III*

is a lafrt defense tlx appellant urges in tils Oonrt that tie decisions in tie oases of Audubon Hotel and others quoted abate by us, if applied by this Ootrt in this oast, trill deprive her of her property without dot procesa of law in violation of tie 5th* and 14th* Amendments to the Constitution of tie united States, and that tie change of Jurisprudence brought about by those decisions trill divest her of her vested rights* V> are of opinion that tie proceedings of tie plaintiff against the defendant, authorised by law and approved by the Supreme Court constitute due process of law after citation and hearing, and that tlx Jurisprudence applied in this case was oonstant prior to Kay 1919 when defendant aofulred her risita*

following the precedents quoted and particularly Langa vs. Baradat, 1 Ct. App., 448

It is now ordered that tie appeal herein in so far as it was suspensive, be dismissed, and that said appeal be maintained solely as a devolutive appeal, with leave to tie plaintiff to eseoute the Judgment by her obtained in tie District Court; tie ooste of this appeal to await the final determination of tie esse on tie merits*

Xaroh 6th, 1920.


author: CCHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    LEWIS BURKE VS. W. E. BIGGERS
    No. 7841
    June 7th, 1920.
   CCHARLES F. CLAIBORNE, JUDGE.

This-is a suit for a Balance due on several tráns-actionsfor^ sale and purchase of cotton for future delivery.

The plaintiff averred that he was domiciled in ennessee; that he was an active member of the New Orleans otton Exchange; that the defendant Biggers is domiciled in Georgia; that in the month of November 1916 plaintiff was employed by Biggers to make purchases and sales of cotton on the Cotton Exchange of New Orleans; that plaintiff carried out these orders through Hayward, Howard & Co., Cot-ton Brokers on said Exchange; that these transactions resulted in a loss of $1354.44 to the defendant herein.who refuses to pay for the / same. Defendant was cited through a curator and the attachment of his property in the hands of a garnishee.

The curator ad hoc denied all the allegations of' the petition.

The case was fixed for trial, and after all the evidence on both sides had been introduced, it was continued for argument for another day. A short time before the argument, the curator filed a supplemental answer in which he pleaded that the transactions between the plaintiff and the defendant were "future transactions” "'whereby it was not intended that respondent should make or receive actual- delivery of the cot-tan", and that said .transactions were illegal in the states of Tennessee and Georgia.

The plaintiff argued that this Court could not consider this supplemental answer because it altered the substance of the original answer. The plaintiff also objected to the introduction of any evidence tending to prove a mere future or 7^1-gaieing transaction, V/e do not deem it necessary to pass upon thjzfse objections, as we do not find the defense estaolished.

The evidence is that the defendant, while in Georgia., on several occasions, telephoned to the plaintiff at his office in Chattanooga, to buy or sell for hirn^in Hew Orleans, a certaii number of bales of cotton; that the plaintiff wired the orders to Heyward, Howard & Co., Cotton Brokers in Hew Orleans, members of its Cotton Exchange/and dealing under its rules; that Heyward, Howard & Co. would accept the order, and enter it upon their books in the name of the plaintiff for account of the defendant; that when the order was executed^Heyward, Howard & Co. would wire to plaintiff, who, in turn, would inform the defsn-dant^by letter^of the sale or purchase made by Heyward, Howard & Co. for his account, in the manner following:

Mr. W. B. Biggers,
Ringgold, Ga.
Dear Sir, On your order over the tSephone, Hayward, Howard & Co. sold one March at 1920 for your accouit.tc.
Yours very truly,
B. B. & B•
Hovember 11th, 1916.
Mr. W. B. Biggers,
Ringgold, Ga.
Dear Sir, On your order over the phone to buy 3 March on the close, Heyward, Howard lc Co., bought 3 March B/C at 20.28 to close 3 shorts for your account.
Yours very truly,
B• B ■ & B.
Hovember 24th, 1916.

The defendant is charged with six transactions, and each one is notified to him in the manner above indicated.

It is evident that these contracts of purchase and sals were made by Heyward, Howard & Co. upon the floor of the Cotton Exchange in Hew Orleans, in the name of, and for account of, and as agents of, the defendant, and that the cotton was to be delivered, and the contract performed^in Hew Orleans. They weretlsrs-fore Louisiana contracts^to be governed by the laws and jurisprudence of Louisiana^ and by the rules of the Hew Orleans Cotton Exchange.

A purchase of movables in another state to he delivered in this State is a Louisiana contract. 36 A., 359; 21 A., 412, 728; 47 A., 135; 1651; 106 La., 730.

"It is a well settled rule that where a contract is to he performed in another place than that where it is made, its validity is to he governed-hy the law of the pla^e of performance". 17 La., 589; 22 A., 418; C. C., 10; 41 A., 1048; 51 A., 1733.

Where the sale between the parties was in Hew York-with the intention that it he consummated in Hew Orleans it is a Louisiana contract. 10 A., 728; 111 La., 801.

According to the testimony of James D. Heyward, a member of the firm of Heyward, Howard & Co., these sales and purchases were actual transactions.

This witness says:

"The custom of the Exchange in doing business with brokers in the interior is that they solicit business in their own names, being members of the -Exchange, sending it to brokers on the floor of 1iie exchange for execution for account of their customers. The members in this case are Estes, Burke, and Burke being lifrble to the broker to whom they sent the orders, to the local brokers here.,in the exchange for any losses, x x x this balance of $1354.44 shown on this statement was paid to our firm by Estes, Burke and Burke; the loss having been made by Mr. Biggers through Estes, Burke, and Burke^s orders, x x x When they sent these orders it wide for account iff Biggers as explained to you. It is always the case of a man in the country when he sends an order he says for whose aooount. We keep a general account of the parties sending the order identifying each order as instructed by them for whose account it isl

It is not the buying or selling of cotton for future delivery which is illegal; on the contrary such a contract is valid. The illegal contract is the one where neither party is obligated to buy or sell, or to deliver or receive^the actual cottcn.; or, in the language of t&e act, "where the intention of the parties is not to make an honest and bon a fide delivery"; but where, on the contrary, the intention and obligation of each party is only to settle on the basis of the difference in price on a future date agreed upon; in other words, a wager on what the market price of cotton will be on a certain future date. 37 A., 814; 39 A., 1076; 46 A., 315; Act 16 of 1898 p 20.

The trial judge gave judgment in favor of the plaintiff for the amount claimed by him less $300. The defendant appealed. The plaintiff and appellee has answered the appeal praying for an amendment of the judgment for the full amount claimed by him. We think the judgment of the District Court correct. The account sued on is prepared by Heyward, Howard is Co. and represents their claim against the plaintiff for the transactions for account of the defendant. We are satisfied that the account is correct as between them. But as between the plaintiff and defendant it is not correct. Defendant testifies that plaintiff drew on him for $300; he says;

"I paid his draft with the draft on Heyward, Howard & Co. I just drew a draft on Heyward, Howard & Co. for $300, and took up the draft that he made on me".

This is not denied and appears to have been an oversight.

Judgment affirmed.

June 14th, 1920.


author: StPaul, J.

text:
    NO. 7842
    MISS JULIA MOREIRA VS FRED HECKMAN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   StPaul, J.

This is a su£t to annul a lease and dispossess a tenant on the ground that, contrary to the provisions thereof lie had assigned the sane without the consent of the lessor; and had otherwise violated vthe lease by subleasing and talcing in boarders, lodgers find roomers, 'whereas the premises had been rented only as a dwelling

I

The defendant offered to-prove the verbal consent of the lessor to the transfer, but the trial judge excluded the evidence on the ground that The lease forbade any transfer or sublease without the v/ritcon consent of the lessor.

This evidence was improperly excluded, a prohibition against the tenant subleasing uniese the lessor yield his consent in writing, is clearly a stipulation in favor of the lessor alone, and of course he may waive it whenever he pleases to do so. And since there is no law which requires such waiver to be in writing, it fol'ov/s that the waiver may be oral and need no a even oe express.

Hence iz nus uniformly been held tnau The mere acquiescence of the lessor in -che sublease rill suffice although The lease require hie written consent. Baudry-L-eantinerie, Louage ho. 1117 (Vol 18 p 589). And since a mere implied consent suffices, it follows t-.at express consent, orally ,„iven, suffices even more. 138 La. 980; 25 Lawrant 426, sec 219; 30 Dalloz Rep. 406, sec 475; Dalloz Code A...ote, Art 1717 No. 190; 13 Corp. Jur. 593-594, secs 609-611; 43 Barb. N.Y. 410; 51 N. Y. Sup. 1; 70 N. Y. Sup 211; 99 Atlantic 662; 169 Pacific 201.

Of course the caso night oe dir*, crent that no sublease s', ou.ld cc ..ade \:it — out the \.r lessor’o agent since The principal may lixi'c as he pleases, xr-cugh h. ...ay not limiu his own where a lease provided lTWOii conneui of whe ;he powers of his age*.t

It is urged ^..-Vo n re*., .nfi hereof v.oulc since the ©- idence so far nr duced shove ( iz i v.h-\-;e/er was given. ‘ ut t_.o nrs-p" i_.at is serve no wooc purpose s sme ) t.xit no consent , pli-.ihf’s , evidence alone was heard and defendant1 s shut off "by the judge’s ruling. What that evidence may disclose remains yet to he seen, hut it should he heard.

II

Heretofore we have spoken only of a transfer or assignment of the lease, which differs from a sublease in this; that the transferee or assignee takes the place of the first tenant and pays rent direct to the -lessor, whilst the sublessee pays rent to the tenant v/ho in turn pays rent to the lessor.

Here it is alleged that the transferee violated the lease by taking boarders and lodgers and roomers imto her home, thus violating the lease in two particulars, 1st. By changing the use of the premises which had been leased only as a dwelling, and 2nd. By subleasing without the lessor’s consent.

Yfe see in all this no violation of the lease.

1st. A dwelling house is a place for the shelter and accomo-dation of human beings, thereby distinguishing it from a stable or storehouse or factory or commercial establishment; and a private dwelling differs from a public house, i. e. an inn or hotel in this, that it does not hold out as offering accomodation to the general public.

But certainly a householder may admit into his house, and on whatever condition he chooses, -whomsoever he will, including boarders, lodgers and roomers; nor does his home thereby cease to be his private dwelling. 10 Orleans App 284; 33 Orl App 343; 55 N.Y.Sup 517; 62 Atlantic 136; 8 S.W. Rep 245.

2nd, In the answer it is admitted that the transferee “accomo-dated some of her friends by renting'part of the premises in question; but that she did not hole herself out as renting, nor did -she rent/t^»^ to the general public".

As the only evidence on this subject was the above admission, v.c take it tha; "part of the premises" mean the* Sthie thing as "rooms". And v:c think thutYihe renting of rooms in a house of which the tenant hd í ousehol- er retains the siiperentendence as a whole is not a sublease within the meaning of a clause forbidding a sublease without the consent of the lessor.

Por delivery to the lessee is of the essence of a lease or eu-leaso (C.C, 2692 hos, 1 and 3); in other words the thing leased must be surrendered to the personal custody and control of the lessee. And indeed it is against this very surrender of the custody and sunerentendence of the thing».2>dttsed that the lessor means to provide and nothing more; otherwia,e.x»íd4&l, rupee does it make to him whether the members of my family or household do or do not pay for the accomo-dations they receive.

The judgment appealed from is therefore reversed, and it is now ordered that this cause be remanded to be proceeded with in accordance with the views herein expressed and according to law; plaintiff and appellee to pay the costs of this appeal and all other costs to await final judgment herein.


text:
    D. Rau & Son. -vs-Mrs. Isabel Smith.
    No. 7846.
    Court of Appeal, Parish of Orleans.
    By Dlnkelanlel. J.
   Plaintiffs institute this suit under a written Contract of Sale of furniture signed by both plaintiffs and defend ant. The amount in question is $455.00; |350.00. of whioh is for a bed room set; $300.00. for another set and $5.00. eaoh, for three kitohen tables.

Alleges further, that this furnture was pueohased by defendant from plaintiffs, and was(and is stored in their furniture establishment in the City of Hew Orleans, and on whioh furniture there were paid to plaintiffs by defendant the sum of $75.00. cash at the time of sals, and there were to hare been payments subsequently at different intervals of |45.00. until the entire amount of balance was paid.

That sinoe the payment of the $75.00. in question, made at the time of the purohase, there has been nothing p paid.; that the furniture in question is held by plaintiffs, at their store, on whfcoh they claim a.vendors lein and privelege together with Interest thereon for the several amounts past due.

Defendant, whilst admitting her signature to a oheok of $75.00. paid to plaintiffs, denies that she ever went into their store, but asserts that shs believed she was going into the establishment of Barnett whioh adjoins the one of plaintiffs.

Defendant, further more alleges, that she, under this belief, in payment of the $75.00., signed a oheok whioh at that time she did not know that the oheok was made payable to the order of plaintiffs; that she did sot see the oheok when she signed it, and would not have signed it had she had known that she was not dealing with the firm of Barnett.

The last and final oontention of defendant is, that on inspeotlon of the goods, the furniture in question, they wore not Ike same oharaoter of goods whioh she had -8-«greed to purchase; that they were all of an inferior qual -ity, not as represented , and she prayed for judgment for the return of the $75.00.. in reoonvention, and that plaintiffs suit lie dismissed at their costs.

A oareful examination of the testimony in this^case oonTinoes us, ¡ that 1¶- she did not know she^dfeallng with plaintiffs firm there were many evidence of that fact before her; large signs were in front of the place, giving the names and the business dealt; those signs being distributed also in large print on the various floors of the establishment; the oheok whioh she gave for the $75.00. and whioh she signed for that amount; the contract of sale which was signed by both plaintiffs and defendant all denote that if she did not know she ought to have known what she was doing and with whom she was dealing. As to the character of furniture which she purchased, the evidence satisfies us, that this furniture originally was in the lower part , on the second floor, of plaintiffs establishment, there exhibited to her. She had every means of recognition, and at hex request, stating that she wanted this furniture on the next day, after completing the transaction above referred to, plaintiffs with their men employees of the establishment removed the furniture from where she had seen it when she bought it, to the fifth floor whioh is used for packing purposes, in order to deliver it to defendant the next day at her residence which is described in the bill of sale.

Now, it is evidenwe to our minds, that her various attempts both in A in the Criminal Courts and in the First City Court, in a civil proceeding, and on appeal from the deoislon' of the latter Court to this Court, reversing the judgment of the Fieri City Court, detor-maining the issues tfae-iesuaa there involved which was a question of the return to her of the $75.00. whioh had been paid on aocount, and whioh was deoiled by Ble Honor Judge St. Paul, presiding Judge of this Court, against her contention and whioh judgment became final, and .finally this suit whioh now involves both a dismissal of plaintiffs aotion together with the return of the #75.00. as ordered by His Honor, the Judge of the District Court.

We are satisfied without quoting, which is entirely unnecessary and would serve no usefull purpose, all the testimony in this suit; that no unfair advantage was taken of the defendant by these plaintiffs; she was treated as all other customers doubtless are; she bought and they were ready to deliver at anytime the goods whioh she had bought; her entire efforts were directed to the return of the $75.00. whioh she had paid to plaintiffs on this very transaction, and her evidence that she was not tendered the exact furniture that she bought does not meet the requirements of the law in that she had to make that part of her claim oertain, and she has failed utterly to do so.

The only law applicable to a case of this kind is found in Civil Code under Articles 3456- 3467- 3468- 3469- and finally Article 3487, and all of these artloles combined are to the effeot, that the seller is not bound to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.

The vendors privelege for the balance due being the sum of $380.00. has not been paid, and they have kept this furniture in tact ready for delivery from the time of the purchase until the present time and they are entitl-led to the relief prayed for.

judg^ní'o^lIe^Sfs^gíál^úrt^^e^elsVSga6^^ the plaintiffs have judgment for the full amount claimed, the sum of $380.00, together with legal Interest froa 10th. December, 1919, until paid and with recognition of vendors lein and privelege on the property sold and that the reconventional demand be rejeoted. Defendant to pay oosts of both Courts.

{ Judgment Reveredd and Rendered. )

July 16th, 1920.

On Application For Rehearing.

The defendant charges that there was error in the judgment herein for three reasons:

Xo Because the judgment of this Court included a sum of $110 claimed in a supplemental petition, to which she had filed no answer and upon '-hich no default' had been taken. She relies upon C. P. 359, 421, 606 & 4 and 14 A., 574; 21 A., 461; 25 A., 166, and other authorities.

¿✓2. _ These authorities apply in all cases where the supplemental petition prays for a relief not included in the original petition, or where the defendant has* a right to answer before the new issues raised in 'the supplemental petition can be con» sidered, which is not the case here.

The plaintiff sued for a balance claimed to be due by defendant for the pjice of f^ifniture, payable in monthly install•S', ft ments^or $270, were due at the date of the filing of the suit, and three installments, or $110, oecame due at the time of the filing of the supplemental petition and before the trial of the case.

The bill sued on is as follows:

1 C. V. Bed Room Set $ 250.00

1 Am. W. Bed Room Set 200.00

3 Kitchen Tables 5.00

'Subject tó a credit of $455TOO 75.00

$380.00

The original petition setSforth these facts and prayed for judgment for the matured installments, amounting to $270.00, with reservation of the right to claim the further sum of $110,00 when "Che dame shall mature*1, and the petition concluded with a prayer "for all costs and for general and equitable relief".

There was no necessity f^r filing the supplemental / petition; according to the original petition alone, plaintiff was entitled to a judgment for the remaining three installments \ which had matured pending the suit and prior to the trial of \v the case, under and by virtue of the pleadings and evidence r and his prayer for general relief.

N Under the prayer for general reli.ef the Court may render such judgment as could "be given in a new suit to avoid-i \» circuity of action, and for everything justified by the origin \ Ni^ial petition and evidenoe. 1 H. D., 734 (4) Nos. 5, 13; 106 La., 58; 125 La., 595; 144 La., 216.

"There was no necessity for the filing of the amended petition, as plaintiff would have had the right to have offered the claims therein contained against those in the amended answer, without any amended petition whatever, x x x Defendant after-wards moved for a continuance on the grounds, that he was entitled to service of the supplemental petition, and was surprised by its averments. As it was unnecessary to have filed the amended petition the service thereof was not requisite" 13 A., 412. See also 9 A., 483; 14 La., 418; 7 N. S., 646; 3 M. 403.
■fS "Where the original petition would sustain evi-'fH N^denoe, to introduce which an amended petition is filed, '4s J N Q v ^the cause raayhe assigned immediately for trial without X ^ 'IN ■, 00 ^answer to the amendment or time given to defendant". 6 A., 531.

^ In this case, as it was unnecessary to file an amended petition to pray for the relief therein demanded, and as that relief could be granted under the allegations of the original petition and the prayer for general relief, the supplemental petition can be ignored, and the defendant cannot claim -lio right of service thereof and citation, nor can she allege as error that she had not answered it, and that no default upon it had been taken.

But the defendant went to trial without raising th. objection now made. In Bataille vs O’Neil, 3 A., 229 the Court said: When the defendant goes to trial without objecting that no default had been taken or issue joined on the supplemental petition, the substance of the démand not being changed oy the supplemental petition, and there was no surprisp, and the defendant had a fair opportunity to make his defense, it will be presumed that he waived a mere informality which did him no injury.

Defendant who goes to trial cannot afterwards object that no issue has been joined. Barriere vs Mc Bean, 12 A., 493; 13 A., 455; 14 A., 925.

— tfor was this point raised on the argument of the case in this Court,

MA rehearing will not be allowed on a point not made in the argument, nor noticed in the points filed". 1 H. D., 107; No. 5, 8, 9, 12, 15; 47 A., 1470; 111 La., 979.

flC* — Hor is it necessary th^.t a default be taken on a supplemental petition to make a tacit issue. In the case of Estlin vs Ryder, 20 A., 251, the Court said:

"Issue ocing joined in this case one. tv e amendment oeing properly allowed thereafter, tne re '«s.s no necessity for a default to make a tacit issue, x x x The right to answer to an amendment does rot necessarily imply the duty on the part of the party a lending to = ake a tacit issue if the right is not exercised".

—• But it i8 not in all cases f'at the supplemental .petition and citation mast be served, or that the defendant may claim the right to answer it. ^ 3 M., 398; 12 R., 138; 7 N. S., 647; 7 La., 188; 6 A., 531; 9 A., 483.

XL. The second error charged is chat tne defendant oought a "Circassian Walnut oedroom set" selected cy .erself, and that 'he "bedroom, set" tendered ..er, to o_-.ote ' er own testimony, "was not tne furniture <■ e 'ad purchased x x it was a much inferior kind of light -rood11 .

The deflendant is tne only witness, "'ho sup jorts this allegation; t*’-e nlsinti^f *nA ‘to ot~er ”'itne«re° deny it and assert positively that the furniture cef^'■'■‘nt oou" i 'ns tne same furniture which was tendered to her. We do not believe that the defendant has made out her case of substitution. A circumstance agiinst her is the fact that while she finds fault only with the Circassian Walnut set, sold to her for $250, she refuses also to pay for the other American set and for the three kitchen tables, of the value of $215, concerning which she makes no allegations.

III. The third ground of complaint is that the contract contains the following clause:

"I do hereby consent and agree that the said property and the title to the same shall be and remain the property of said The Bee Hive Furniture Store until fully paid for as above agreed, and if I neglect to pay said installments when due (time being the essence of this contract) said The Bee Hive Furniture Store shall have the right* and privilege at any time thereafter to demand and take away its said property, and I agree to forfait f.nd lose all previous payments made the eon, the same being treated as rents";

fiat plaintiff oy retaining possession of fia furniture and by said clause has waived er.y claim for a specific performance and has itself limited me ..easare of ¿cunares for che non-payment of all the in-csllments to the sums paid on account, in this case to $75.

The answer to this contention is contained in the case of the Barber Asphalt Paving Co. vs St. Louis Cypress Co., 121 La., 152.

The Court said:

"A so-called conditional srle, or sale by which the vendee is to become at once u iconditional3y uound for the price, cu*d the vendor is to continue to »c o'-'ner of the property until the .'.'••ice is fj-iid, is not pos^ioln u.-'de-c t> e in-'s of f: is State. A petition '-v.crcin the vender urmer such a contract cíalos the ownership of bh* property sold Shows no cause of action".

y~J/ Lastly the oefencUut contends c->t the jud,\ent of chis Court ?.*ould be"co.:?itioned on pi? i.i tiff ’ s ’'olivary to her of ore Circadian ir,..: o^’ro^r. set". L c. It is cue duty of the ■buyer first to ‘pay the price before be can claim delivery of the thing sold. ,

C. C., 2487 (2483)

"The seller is not bouncí tó\'!*^s^ a delivery of the thing, if th:e_b ;'b,o)tv^a^tbe price, and the seller has not firantedJo&~TinyN^Ea, f or the payment". 2 Ct. App. 308.


author: at.Raul, Judge.

text:
    NO. 7848.
    SUCCESSION OF L. H. FAIRCHILD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OÍIHIOH.

at.Raul, Judge.

Shis is a rule taken by the executors against the defendants, agents of the deceased, to show cause v:hy they should not turn over an alleged balance in their hands ($1475. less ^490.75, ay .;984.2cJ.

Ihe defense is that the balance is in d-fendrnt's favor (v6c.7o) by reason of a credit of ¿1050. to which they are ntitled as earned cor/raission on a sale of certain real estate.

The validity of this credit is the only issue.presented.

I.

On Dec 28th 1916, the deceased "agreed and bound hinself to 3oi 1 an-’ convey" certain real estate to one C-allagher-for 55000. pay; ble cash -,.t 'the time of conveyance, which was to bo not later than ilurch ist 1917. On his part Gallagher "guaranteed the pay.Jent of said price on the conveyance of it the title by the said vendor", ^.nd was further provided that •"in the event that tho sale is consulatei the vendor agrees to pay Gurley _ rar.:inso:i three per cent comission on GSoOQO."

It is adiaitted "th-.t tho agreer-.nat of Dec 28th 1918 was extended Iron tine to tine by 1. ■£. I'airohild during his life time, and hy his executors after his death, up to April 2fth 1119; tho said extensions being i: .riti.ig and Gallagher (rv^ •..greoiiig to pa„ su. pe” cent isi th: pur j'-ase price curing the lii'o of each extension".

And It is shown by ths ### evidence of defendants themselves that when the last extension expired "Gallagher asked for a farther extension", which the exeoutors declined to make.

It is also admitted "that the right of Gallagher under the contract of Bee 1916, expired on the 26th day of April 1919.And no demand was made on him by the Riarchlld Estate for specific performance of the agreement.Because of the statement made to me ('Counsel for the executors) by Mr Parkinson, employed by the Fairchild Estate to make the sale, that Gallagher would have to be sued in order to compel him to take title."

II.

It will therefore be seen,-I. That the commission was to be due only "in the event that the sale is consúmate!"; and 2. That Gallagher defaulted on his agreement regularly from March 1st 1917 until April 25th 1919; that even then he sought, but was unable to obtain a further extension; that although no legal formality was employed to establish his default, nevertheless he was so far actually in default that he "would have to be sued in order to compel him to take title".

III.

There was judgment below for the defendants, blit we think that judgment was error.

I. By the terras of the agreement the commission was due only "in the event that the sale was oonsumated"; and these words, ‘sufficiently plain in themselves, have been interpreted for words to to the same effect) to have reference to a completed sale translative of title, and not a mere executory promise of sale, never carried out. Jordy vs Salmen Co, 121 La 457; Terry vs Schenck, 10 Orleans App 62; Mc Williams vs Lyons, b Orleans App 231.

2.,Kor does such a clause materially alter the rights of the parties under the general laW. It is fairly well settled that (in the absence of a olear agreement to the contrary) a broker's commission on a sale is not earned unless the Sale be actually completed. De Santos vs Taney, 13 An 151; Loyacano vs Thompson, 4 Orleans App 345; Sonneman vs Cutter, 10 Orleans App 155; Haight vs Marrero, 12 Orleans App 369,

Of course where the broker has produced a purchaser I able and willing to buy, and the failure to complete the sale results from the act or fault of him who has promised the commission, the case is different for the commission is then 1 due. Roberst vs Thomas, 8 Orleans App 210; Slattery vs Hussey, 4 Orleans App 65; Gurley & Parkinson vs Loeffler, 14 Orleans App 424.

IT.

In the case before us the failure so complete the sale resulted from no aot or fault of the deceased ox his exeouters, but solely because Gallaghes.fcSB «¿willing br unable to tajee title; that 14 to say, unles* m. « to impute as a fault their unwillingness to embark upon litigation t» etlforoe the promise of sale.

But we do not think that this oan be. A right of action for a thing may as an abstract proposition be the sane as the possession thereof, but practically the two are very different; for litigation is always expensive, never'/certain, aften profitless even though successful, and sometimes ruinous.

Henoe a reward promised for procuring the price for a thing which one wishes to sell, may well be refused for producing only a promise of such price.

And henoe the procuring of a purchaser able and willing to buy, contemplates one who shows his ability and willingness by voluntary performance*or offer to perform, not simply one who might for might not) be coerced into doing 30.

We therefore think that plaintiffs, in rule were jusitified in refusing to go further when it became manifest that Gall'agher would not comply with his agreement unless under compulsion of law.

The judgment appealed from is therefore reversed, and it is now -ordered that defendants in rule,, Gurley & Parkinson, do pay over to the executors the sum of Hine hundred and eighty ^our 25/100 Dollar's (¿984.25) and costs of both courts.

New Orleans June 28th, 1920.


author: By Dlnkelspiel; J,

text:
    NO. 7852
    COURT OF APPEAL PARISH OF ORLEANS
    AUGUST. FRANK versus. WIDOW LEON SPARICIO.
    By Dinkelsplel; J/
   By Dlnkelspiel; J,

Plaintiff, a building oontraotor [brings this suit gainst defendant, on a building oontraot^whioh balloting oon-traot called for the reconstruction^ and finishing of a building owned by the defendant, acoording to plans,and specifications which are made part of said oontraot, the allegations of plaintiff's petition being to the effeot ,(that notwithstanding the work had been oarried out in accordance with said oon-traot that there remains a balanoe of Five Hundred ($500.00) Dollars, due him, whioh defendant refuses to pay.

Defendant, while admitting the oontraot sued on, denies liability for any unpaid balanoe,alleging that the work and material supplied by plaintiff,had not been in accordance with the oontraot, plans and specifications, but on the oontrary were manifestly Inferior thereto ^as set out by expert employed by her and therefore plaintiff,was not entitled to reoover for the balanoe not paid by her.

Defendant, further answering, claims to be entitled expert/ and to demurrage,/attorney's fees, under the terms of the oontraot, but has not offered any proof as to the amount of olaim, nor does she pray for anything but the dismissal of plaintiff's suit, and «amo was not taken into consideration by the Judge of the Loser Court ^in rendering his Judgment for plaintiff 1m the full amount olalmed by him^and iron whioh Judgment an appeal has been taken by the defendant, to this Court*

A careful examination of the record In this aaae^ and particularly the evidenoe of the experts appointed by the plaintiff^ and the defendant to examine ^and report upon the work and materials supplied by plaintiff on this' Job, shows same to be of a very oonfllotlng nature for erne on the one hand, Ur. Raymond, the arohlteot appointed by the defendant, sets out in a written report furnished by him to his prinolpal, a number of lnstanoes where In his opinion the work and material suppliedJhad been very muoh Inferior to that oalled for by the plans and specifications, while Ur. Hernandez, the expert appointed by the plaintiffs also in a written report rendered by him, olalms that In ' work and material the oontraot had not only bean oomglled with, exoept in a few minor lnstanoes, but In more than one oase better work and material had been supplied, for whioh no oharge had been made.

The plaintiff testified that he had rectified a number of so oalled defects as set out in the report of the defendant's arohlteot, notably amongst whioh being the rebuilding of the side piers, replacing of posts complained of, fixing of the front roof, capping the gams gas outlets, replacing of the electrical fixtures oomplalned of, by fittings of a better quality.

He also testified that some of the work whioh Mr* Raymond's report sets out had not been done by him, was not done because defendant herself had authorized changes to be. made, which necessitated that oertain ohanges be made In the plans and speolfications, suoh as the omission of a door between the first and seoond bed-rooms, whioh was done at the exprex with of the owner -^o that she Might he able to piaos her furniture to better advantage, and thle ohenge woe Made after the doore and franee hod been oonpleted by the builder in strlot aooordonoe with the plana and epaolflaatlone and neoeeeitated the building up of the planter, and papering of ■ame, all of whloh woe done without extra oharge to the defendant»

In eo far as the plastering le oonoerned, the testimony of the builder and of Ur. Hernandos, the arta arohlteot, are to the effeot that the plastering work whloh was oalled fpr by the speolfloatlons was what wae known as patoh work and for that olass of work it was done In a workmanship aan-ner^but being patoh work ysould not give the sane satisfaction as the new work.

There Is, It Is true a serious complaint of the painting whloh was done by plaintiff, and the evldenoe undoubtedly shows that some of the paint had peeled off at the time this suit was tried In the Court aquo^but as the reoord shows this complaint was made for the first1 time about two years after the job was oompleted, while the unoontradloted testimony of the builder and painter Is to the effeot that not only the but same was quality of point upg speoifledjrit&jused/aBDi applied In strlot aooordanae with the oontraot, therefore we are of opinion that proof is laoklng on the part of defendant to show that the peeling off of some of the paint was due to faulty material^ or workmanship of the plaintiff or of his painter.

We also hold that the elídenos does not show that the leaks oonplained of were due to any fault In oonstruotion are or workmanship of the building, norfa we of the opinion that they were really as bad In oharaoter as the pwitft ft sets out*

In regard to ohain wall, the ovidenoe oonvinoea ua that the same was oompleted in accordance with the speoifioa-tions and to have run same across the front as defendant oon-tends should have been done, would have been in violation of the XEiBsjas Rat-Proof Ordlnanoe of the City Counoilo

As a matter of faot a very careful consideration of all the evidence in this oase taken in connection with the contraot, plans and specifications, and the nature of the building which was the subjeot of the contract for repairs does not convince us that the plaintiff failed in any material way either in workmanship or material, to oarry out his contraot to the best of his ability and that the opinion of the Judge of the Distriot Court, who saw and heard the witnesses in this oase and who was in a better position than we are to oorreotly Judge of the creditability of the witnesses, and therefore we see no reason to disturb his judgment, whioh was in favor of plaintiff for the aasount olalmad»

For the reasons assigned it is therefore ordered, adjudged and deoreed that the judgment appealed from be affirmed, defendant and appellant to pay the oosts of both Courts*

Judgment affirmed»


author: CHARLEO F. CLAIBOTHÍE, JUDOS.

text:
    Charlas S'. Claiborne, Judge.
    MR. AND MRS. AUG. ROSENBLATH VS WILLIAM PIERCE et al.
    No. 7856.
    May 31st, 1920.
   CHARLEO F. CLAIBOTHÍE, JUDOS.

The only question Involves In tills case Is whether the plaintiff», father and mother, are entitled to oompenaatlon for the lose of their son Jellied while In the employ of the def ondantá —

Seo. 8 (£ ) of Act. 243 of 1916 p 512 (515) reads as follows:

"Por injury causing death within one year after the accident comoensation shall be computed on the following basis, subject to a maximum of Ten Dollar» per week and a minimum of Three Dollars per week, and •hall be paid for a period of three hundred weeks, to the following persons: 1-2-3-4-5-6".
7 - "If there be no widow nor widower nor any child, then to the father or mother of the deceased, if dependent on .the deceased to any extent for support at the time of the accident, twenty-five per centum of the wages of the deceased; if in such event both the father and the mother of the deceased survive and were dependent to any extent for support at the time of the accident, fifty per centum of the wages of the deceased to the two of them. 8 - 9 - 10 - 11 - 12 - 13."
14 - "In every case of death, the employer ehall pay Or oause to be paid the reasonable expenses of the last sickness and burial of the employee, not exceeding one hundred dollars".
2, " The term "wages" as used in this Act is defined to mean the daily r.-ite of pay r.t which the service rendered is raco.moensed under the contract to hire in force at the time of the accident".

.Petitioners aver that on June 7th, 1918, their minor son Bernard was employed by ths defendants William Piero* and 01s K. Olsen in drilling holss and putting in beam* in a sugar rsfinsry; that whlls so employed their son received painful Injuries from which he died ths same day; that at ths tims of ths accident and now petitioners were and are solely dependent on their deceased son for support; that they are entitled to rseover one hundred dollars for the burial expenses of their son; that, at the iIra* h* was injured, their son was earning nine dollars a week from the defendants, nnd that he is entitled to recover from them Pour 50/100 dollars a week for three hundred weeks and One Hundred Dollars for funeral expenses.

The defendants severed in their answer.

Pierce admitted the injury to plaintiffs' son, but denied all the other allegations of the petition.

Olsen also admitted the. injury, out denied all ths other allegations of the petition; he averred that Ploro» was an independent contractor; that plaintiffs' minor son was in the employ of Pierce alone, and not in his; that if any judgment was rendered against him, that he was entitled to recover judgment against Pierce under 3ection 6 of Act HO of 1914 p 48.

There was judgment in favof of the plaintiffs for One Hundred Dollars for funeral expenses, and rejecting their demands in other respects. The plaintiffs have appealed.

Upon the question of dependence the Judge said:

"The question that disturbs me is -hether or not the parents were dependent upon him for support. 1 think that is .the question in this case. According to the evidence, the family was composed of the father and mother, the plaintiffs in this case, a widowed daughter with two children, and a son August, about 33 years of age, and the deceased boy Bernard; there is no showing that the mother or widowed daughter earned anything. The father, at the time of the accident was out of a job, ranking a precarious living by doing odd Jobs. The impression made upon me is that he did not average at that time exceeding 830 a month. -He is at present time earning between S30.00 and $40.00 a month. August contributed to tha household, and received hoard, 1edging, and washing, paying only $7.00 a waok toward tha MlBtwusia of the family, Tha boy Bernard had bean working far about four yaara, and was contributing about $0.00 a weak, for which ha reoaivad board, lodging, and washing* Tha Court, taking Judicial cognlxanca of tha high ooat of living for the laat few yeara, is necessarily driven to the belief that that $5,00 could not have more than paid for tha food and shelter that tha boy enjoyad, it is impossible to aay that anything could have bean lsft out of that $5.00 which could materially asaiat in the maintenance of the mother and father, no matter how cheaply they undertook to live. The amount of food that would ba required to keep a working man in health and strength could have cost probably all of the $S.OO. 1 understand that tha Aot gives. In the caaa of death, the right of action to the dependants of the deceased nan. In the course of years, had the boy lived, he might have materially increased hie earnings, and night have become a support to hie parents, cut the daolaion of tha casa roste upon the evidence. At tha tima of his death, I an unabla to find thnt his father and aother were dependant on the boy. The caaa la a hard one, I should like to do something for them, but X am unable to do so from tha view X taka of the evidence and the Lav" .

Tnc pl<i¿.,tiff is the only witness on the question of "Dependence" and his testimony is as follows:

! Ha is 58 years of aga and his wlfs if 59; ha had baaa a laborer all his life; «t tha time of hla son's death ha was working for the City and hacheen aver sinoai hia wages amount to $35 or $40 a month; his household consisted of hie wife, a widowed daughter with two small children, a son named August aged 33, and his deceased son Bernard, aged 19. he owned no uroperty of any kind; and has no revenue except what he aarns; ills son August earned 01^ wk of whioh he paid $7 to his mother; his son Bernard sai. .}9 a week, of whioh he paid SB or $6 a week to hia mother! both esn* lived at tb« heiaa of thoir parents and rosolvad in raturs board, lodging» and washing: tha daufhtar was not working! what tha boya save did not pay for «hat they got, but atlll plaintiff had to take out with it.

is ge in hia conclusions, Tha object of ¡tataa to t certain aa regarda dot» extent the 1 ■<«« tidim/i «y a a person dependent on the employee "to any extent" for sap pert. In the present case the plalntiffa ran the house, paid tha of it la immaterial whether the amount paid by eaoh one le called a contribution or board, or whether it ia more or leea than the vnlue of the board. The fact is that each paid in a part, and thnt the whole wao used to pay the expense». The father paid about Í40 a month, the eon August {30, and the deooaeed eon Bernard Í20, making a total of {90 a month! the "extent" to which thio household wao benefited by the payaente of Bernard is repreaented by these twenty dollar»! it nay have paid for the rent and the daily bread or eome other item of expenso; the gome nay be said of the amount paid by August, bach amount represents the extent of dependency of the father toward» each son who contributed It. If the weekly payment nado by «aeh-eoa had been out .off, the father would hare been left with only 340 a month, an amount insufficient to support hita self, hie wife, hie daughter and her two ohildron. If tha amount contributed by any one of two sons had been withdrawn, the tty ->f the father to provide for himself and family would have been reduced that much. Iban Bernard*# 8P0 a month ceased to cone in, the "dependency* of plaintiffs upon that amount was affected to that extent. It Is no argument to say that the board and lodging and washing of the two boya wer# worth more than the amount paid by them! that may be true, as a business proposition, but the fact remains that thle household of seven persona was supported by 390 a month, or about $13 each, end that the plaintiffs depended upon the amount paid in by eaoh of the two boyo; and thnt the absence of either utMI wag «aloulataí to 1«»t« quit* « ww an* oak* quit* • llfrmMt In tha naoaaaarlaa tha tlttatlfft anuid praaura* Tha trltl judge m* la arrar la aeying that Uia law required tha parent* t* prom that *tt*r vara dependent upaa hla far aupport** Th* law lat 'if dependant.on th* daaaaaed t* any axtant for aupport** 9a ttolak th* arldaaa* (haw* that hath tha plaintiff* war* *dapand*nta" to th* "extant* af ahout •20 a ttantbu^jfryvz-- /2^*ryz-

■Sha taat 1* nhathar th* paraos 1* being whally, or t* a auhatantt'hl dagraa, auppartad by th* «apl^yaa at th* tita* of th* aaployaa'a daathl th* dapandant may ham othar anana Of aupport, aa whan' th* aaplayaa oontrlbutad to a fully fund a a*. C, y. rorinan'a Companaation Acte p fit $ 53.
•Tha tdat of dependency In not whether th* pntl-tlonar, by raduolng hla axpanaoa baXaw a atandard aultabla to hla condition of Ufa, euuld aaour* a aubalatano* for hlo fanlly without tho oontrlbutlona of th* daoaaaad ton, but whathar tueh oontrlbutlona war* nandad to prorld* tha family with tho ordinary' nao amarla* of. Ilf* aultabla for p nr a on* in thalr elaaa and poaltlon*. Ida* not# 81*
•A ton- Urine with hla paranta and paying th* prion for hi* board and lodging that 1*. ordinarily paid at ooardlng houana say b* aaid ta b* eontrlbu-ting to thalr aupport** Idas not* 52 (b).

Thar* 1* no dlaput* a* to th* halation# of tha defendant*.

^ Ondar faction d of Aot 90 of 1914 p 48, tho plaintiff* could raeoror from tha principal contractor and fro* th* tub» contractor, reserving th* right of th* formar agalnat th* lattar*

It la tharafora ordered that tha judgmant haraln be ra-rarand and aot aalda, and that th* plaintiff* herein do ham Judgmant In solido agalnat th* defendant* herein, Wtlllaa Piara* and oí* K.Olean, for th* aum of On* Hundred Dollar* and for th* further nica of On* Thouaand, thraa hundred and fifty dollar* payable at th* rot* of Hour 80/100 dollar* weakly for thraa hundred weeks oommanclng June Elat, 1914 with legal Internet from April 1st, 1919 till paid and all oosta of a.

It la furtbar ordarad that In Oast anaeaa pay tbla Judgmsnt ha do raoovar judgaant in hi a favor for a Uka amount, and all costa.

May Slat, 1930,


author: By Dinkela-oiel. J

text:
    Hibernia Bank and Trust Co. -vs-E. T. Dunn, Recorder of Mortgages.
    No. 7877.
    Court of Appeal. Parish of Orleans.
    By Dinkelspiel. _J._
   By Dinkela-oiel. J

This suit comes before us on appeal taken by Albert Millet, duly qualified under tutor of the minor Ferdinand Baoas, from a judgment rendered by the Civil District Court, Par -ish of Orleans, Division,'A', under which judgment a ^rlt of Mandamus, taken by the Hibernia Bank & Trust Company against the Recorder of Mortgages for the Parish of Orleans, had been made peremptory, directing said Recorder to cancel and erase from the books and records of his office, the general mortgage inscribed in Book 916, folio 683, against all the property of said 3ank resulting from its confirmation as dative tutor of said minor.

The under tutor had not been a party to the mandamus proceedings, and it was neally a year after the judgment making the mandamus peremptory had been signed by the Judge af the District Court that a motion for a devolu-tive appeal was asked for and allowed.

The appeal is based on tne grounds that the judgment wa3 against the law, and if allowed to stand would work an injury to the minor of which he was the under tutor.

In the argument and brief filed by Counsel for the under tutor, the ground set out as to the reason why the judgment ±s appealed from ie contrary to the law; the ohly point upon which this claim is based is that while it is true, that paragraph 2 of said Section 6, of the if Act s£ 45 of 1903, set out that, the capital stock as paid in shall be taken and considered as security required by law for the faithful performance of its duties as fiduciary; where a bank shall nave oeen appointed tutor by an order of Court this security ie an addition to that required by Articles 31S and 333 pf the Revised Civil Code, and therefore the Court erred in directing tne Recorder of Mortgagee to cancel the gen-ral mortgage given by the Bank as dativa tutor oft the minor above referred to.

The Supreme Court in passing on Seotion 3, of Aot 45, of 1903, held, that " Where aot 45, of 1903, does not otherwise provide the duties, rights, and obligations of a Bank Appointed tutor ad bona for a minor or interdiet are the same as those preseribsd by law in eases od ordinary tutor -ship*?- Young vs. Teutonia Bank and Trust Co. 134 Ann. 890.

In as mueh as Seotion 3, of said aet, provides that, * the oapital stook' as paid in shall be taken and eonsidered as seourity required by law for the faithful performanee of its duties as sueh fiduciary; ( tutor in this sase) provided the Court shall have the right to require^ other seourity, if it shall dess' proper.*

It is therefore our opinion, that the Legislature was of the opinion, that the seourity was the only seourity necessary for the proteotion of slnors and others for whom a Bank sight aot in it's capacity as tutor or curator, giving however to the Court discretion to exaot from the Bank other seourity, ik if it should deem it neoessary or proper in the Interest of it the minor, that additional security shall be furnished by it, and this Court sannot add to that seourity without infringing upon the prerogative of the legislative branoh of the State.

It is therefore our opinion that the judgement of the lower Court is oorreet, but in as muoh as the appeal taken by the under tutor of the minor, Ferdinand Baoas, was la the interest of said minor, we are of the opinion that all the oosts of appeal shall be paid by the tutor of the minor out of the funds in it's hands belonging to said mlnor^^^/'

For the reasons herein assigned, it is ordered, adjucíge¿f/t^~~<^ and deoreed, that the judgment appealed from be affirmed, costs- of appeal to be paid by the Hibernia Bank and Trust Co., dative tutor of the minor, Ferdinand Baoas, out of the funds now in it’s hands as dative tutor.

Judgment Affirmed.


author: By Dinkelsplel. J.

text:
    Elizabeth Johnson- -vs-National Surety Co.
    No. 7893.
    Court of Appeal Parish of Orleans.
    By Dinkelaplal. J.
   By Dinkelsplel. J.

This suit, is based upon a claim by Elizabeth Johnson, plaintiff, amounting to |750.00, with 5$ interest from November, 1st. 1918, plus |19.00. costs of a prior suit by plaintiff against the New Orleans Railway & Light Co. whioh amounts are alleged to be due plaintiff by the National Surety Co., defendant, for the reason, that said indemnity company was the surety for the New Orleans Railway & Light Co. fas against damage whioh he or they had and were to indemnify any person who might sustain to his or her person as the result of fault of the principal in operating car No. 78, in the event of the failure of the Railways Company paying said judgment.

The petitioner sets out that in xe suit brought by her against the New Orleans Railway & Light Co., she alleged having been injured by car No. 78, the property of that company, further alleges that after a legal trial of the issues presented in that suit against said Railway Co. there had been rendered in her favor a judgment in the amount above setforth, which judgment she was unable to realize upon against the said Railway Co., because of it being in the hands of a Receiver, and henos she claims that said judgment should be paid by the National Surety Co. as the surety of the New Orleans Railway and Light Co.

Eefendants in their answer admit that judgment had been obtained by plaintiff against the Railway Co., in the amount claimed by her, but in their answer aver and set up a special plea as to why they are not liable to plaintiff herein under their bond, but the defence in this Court as to why they are not liable to plaintiff as surety of the Railway Co., is predicated solely on the ground that having not been parties to the original suit between plain-tiff and the Railway Co. and no judgment obtained by this plaintiff in that suit can have any binding effect upon this defendant, nor can it be used in tnis suit as a basis upon which judgment could be obtained^them by plaintiff herein.

The only evidence which was offered on the tri&l in the District Court was the petition, citation, answer and judgment against the New Orleans Railway 1 Light Co. in pliintiff’s suit against that company, and the bond of the National Surety Co. herein sued upon together with the admission that the New Orleans Railway & Light Co. is in the hands of a Receiver.

This evidence was held sufficient by the Judge of the lower Court over defendants' objection to it's admissibility, to enable plaintiff to make out her case, and upon that evidence judgment was rendered in favor of plaintiff and against the National Surety Co, for the full amount claimed by plaintiff, against which judg -ment the Surety Co. ha3 prosecuted this appeal to this Court wherein it/ asks for a reversal of cue judgment of the District Court.

Counsel for defendant, both in oral argument and in his original and supplemental brief, ha3 referred us to several authorities some of which bear out nis contention, that in a suit against a surety, where the sole evidence is the record of a case tc wnich the surety was not a party, that evidence will r.ot be sufficient to prove the amount of damages against the surety.

There are, however, ano'i&er line of authorities which modify this docterine, and which are to tr.e effect, that a judgment against a principal to w.-ion the surety was not a party la prima_facia_proof of Ine amount for which the surety is responsible, and ',v:.il3t not conclusive against him is sufficient until rebutted and tr.us rebut-ted no other proof is required. Whitehead-vs-.Woolfork, 3 Ann. 43- Herrick -vs- Conant- 4 Ann. 276. Ferguson vs. Glaze, 12 Ann. 667, Mc. Closkey, Bigley & Co. vs-Winfield & Bridges. 32 Ann. 38.

As a matter of fact, in the last case cited by us the Court at page 43 held; " The sureties obligation is to satisfy the judgment against his principal, if that judgment is good against the principal the surety cannot dispute it's validity".

But besides the record in the original suit between plaintiff herein and.the Railway Co.,the bónd signed by the Surety Co., is also part of the record in this case, and a careful examination of that bond convinces us that it was the clear intention of the {rational Surety Co to indemnify any person up to the sum of §5.000.00. damages by him or her in person, or property, as the result of the fault of the principal, or its agents, in operating of car No. 78. in the event the principal, the New Orleans Railway & Light Co., fails to make such indemnity itself, and that proof having been made by the plaintiff in her suit against the Railway Co., it is,in our opinion, immaterial whether or not the surety company was made a party thereto, and therefore we concur in the judgment of the District Judge, and are of the opinion that same should be maintained.

For the reasons herein above assigned, it is ordered, adjudged and decreed, tnat the judgment appealed from be affirmed. Defendant and Appellant to pay costs of both Courts.

-Judgment Affirmed-


author: CHARLES T. CLAIBORBB, JUDOS.

text:
    Charles F. Claiborne, Judge.
    JOHN P. ALLEN VS HARRY K. SMITH
    No. 7899
    May 17th, 1920.
   CHARLES T. CLAIBORBB, JUDOS.

Plaintiff sues to be recognizee as the sole owner of certain property on Dupre Street. He avers that the proparty belonged to his deceasel-mother, and that it was inherited by him and his sister and nieces, viz: lo Katie Allen, wife of Henry Straub, 2o Mary Loretta Allen, 3o Sldonia Allen, 4o Dora Jennie Allen, and So Kelly Allen; that in a partition between himself and his coheirs, this property was allotted to him; that instead of making an act of partition, the Notary, Nellx J. DreyfouB, made an act of sale dated January 5th, 1915; that on said date the plaintiff was the husband of Kama Hasp# , widow by first marriage of George Kirby Smith, who had, by her first marriage aforesaid, one son named Harry Kirby Smith, now a resident of Los Angeles, California; that his said wife dlad_on March 28th 1915; that while the above property appeared to form a part of the community which had existed between her and the plaintiff herein, the truth is that it formed no part thereof as it was his separate property inherited by him in the manner above ett> forth; that he desired to have a judgment establishing that fact. He prayed for citation of his five coheirs above mentioned, and, through error, prayed that "George" Kirby Smith be olted tbrough a Curator ad'hoc, instead of "Harry" Kirby Smith.

Citation was addressed to "George Kirby Smith, through Richard Lyons, Curator ad hoc" and served accordingly. On Neb-ruary 10th, 1920 judgment was rendered as prayed for against all the five coheirs of the plaintiff; but through some unexplained reason or error, the names of George Kirby Smith and Harry Kirby Smith were both omitted from the judgment.

Wheredpon the plaintiff filed a supplemental petition in which he alleged that through a clerical error the original citation had been addressed to "George" Kirby Smith Instead of "Harry* Kirby Smith; hi prayed for lian to fill an umiil petition praying that "Harry* Kirby Smith be oited, an* that a now citation ieaui accordingly.

So this supplemental petition and citation the Curator ad hoc excepted on the ground that "this proceeding haring been closed by a final Judgment duly randered and signed, no supple, mental petition can now be filed to revise or correct said judg. ment, plaintiff! remedy being by appeal."

This exception was maintained, and the supplemental petition was dismissed, by Judgment rendered March 28th, 1920.

Trom both Judgments dated Tebruary 10th and March 26th, the plaintiff took an appeal.

The case has been submitted without argument and upon plaintiff’s brief alone.

The onlj error complained of by plaintiff and appellant is that concerning "Harry Kirby Smith", whose name was amlttld from the judgment of Tebruary 10th. Plaintiff is not entitled to a judgment against him, for the reason that he was never cited. The citation addressed to "Qeorge Kirby Smith", through a curator ad hoc, could not bring him into Court. It is true that the Cura. tor filed an answer in the name of "Harry Kirby Smith"; but the curator could not waive a legal citation, although Harry Kirby Smith might have done so if present. 1 H. D. p 5 Mo. 7; 28 A., 258; 33 A., 1168; 50 A., 170 (172); 23 A., 779.

It waB an error to have denied the plaintiff the right to file his supplemental petition. The case had not "bepn closed A-A*** fee**. /¡^^tCc^ejL by a final Judgment", as..no judgment had ever been rendered ^ against "Harry Kirby Amith"; until such judgment had been rendered the plaintiff was in time to correct a mere clerical error in the name of one of the litigants by a supplemental petition.

"An amended petition may be received even after the trial has commenced, where its only object is to correct a mistake in the name of the plaintiff, e. g. by substituting "Joseph" for "John". 3 A., 139; 4 La., 298; 8 La., 298; 12 La., 9; 10 R., 431, 12 R., 140; 1 A., 136; 5 A., 576; 30 A., 1247; 42 A., 65.
^ There by an evident oleriel error a differs nt name from that' of the defendant in the suit has been inserted in the prayer of the petition, the suit should not fee dismissed, but leave granted to correct the error by an amendment instanter". 14 A., 609; 11 A., 420.

Amendments should always be allowed to subserve Judtice. 2 M., 297; 11 M., 640; 2 N. S., 625; 4 La., 298; 3 R., 123; 9 R., 83; 1 A. 254; 13 A., 412; 20 A., 251; 27 A., 316; 36 A., 785; 39 A., 102; 40 A., 609.

*^An amendment of pleadings is more readily allowed than // ,> refused, 105 La., 77 ,'as the former is less likely to do injustice than the latter. 5 A., 566.

"The tendency of modern practice is to yield as little as possible to technicalities, and to afford aid asfhr as practicable to the filing of amendments, which work no injury and prevent usdless delays and costs. 117 La., 320 (323).
"It has been held that amendments should be allowed to petitions even after issue joined, where they merely •upply omissions in, or amplify the general allegations, or where they tend to the furtherance of Justice, and do not retard the case or operate to the injury of the opposing litigant". 143 La., 413; 5 A., 674; 10 A., 599.
"The right of a litigant to amend his pleadings is highly favored when tiie only purpose and effect is to meet the ends of justice". 144 La., 623.
"The best principle is that an amendment should or should not be permitted to be made, as it would best tend to the furtherance of justice". 2 N.S., 627; 11 M., 640.
"Courts of the first instance have full power to sanction such amendments in the pleadings as they may deem conducive to the better Administration of justice. The only positive rule they are bound to follow, is that contained in Art. 420 of the Code of Practice". 1 A., 256; 274; 4 La., 298,
"Provided the amendment does not alter the substance of his demand by making it different from the one originally bought" . C. P.,419.

It 1* therefor# ordered that the judgment herein rendered on Jehruary 10th, 1920 he affirmed; It- la further ordered that the judgment herein rendered os'■drcb 2eth, 1920 dismissing plaintiff's supplemental petition he reversed and annulled; and it is now ordered that plaintiff's supplemental petition he reinstated , and that this ease he remanded for further proceedings according to law, the defendants to pay the costs of appeal*

May 17th, 1920.


text:
    NO. 7904.
    FERNANDO ROSES VS CHARLES SIGGIO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opihioh.

St. Paul, Judge.

Plaintiff sold defendant an automobile and as security for the price took and recorded a chattel mortgage thereon. Tharet^>an’~'opponent made> certain repairs to the automobile —twhich Vías still in its possession when seized herein) and now claims payment out of the proceeds thereof by preference over plaintiff.

The chattel mortgage act (lío. 198' of 1918, Section 4) provides that every such mortgage shall be a lien on the chattel from the filing thereof for recordation, "and said lien shall be superior in rant to any privilege or lien arising subsequently thereto."

It is eoritouded however that 0. 0. SS17 lío Z gives a workman or artisan a right to detain the thin;; on ..'hioh a;. has worked, until paid; and that this right is not affected by the provisions of the chattel mortgage act.

Row it is clear that the right to retain a thing until a debt be paid, must and does necessarily confer the highest possible privilege or lien upon the thing. But the substance of the right is in the priority thus secured to the creditors and not in the mere vain detention of the thing itself.

Hence our courts have not hesitated to compel him. whose privilege was based on a right of pledge to take the substance of his right and waive the name.

Flournoy vs. Millings, 15 An. 475 Case vs Kloppenberg, 26 An 482.

So that a privilege, or lleq, or priority, or preference, evan though oouplad.' with a right of detention, or of possession, or of pladga, is after all only a privilege or lion, though of a high rank, and. hence falls within tha sweeping taros of the 8hattel Mortgage Act.

As the privilege and lien of the opponent herein, arose subsequent to plaintiff's raoorded Chattel Mortgage, the latter is entitled to priority.

Judgment Affirmed.

New Orleans La, May 17th, 1920