author: CHARLES F. ClAI*W)?.iTE, JUDGE.

text:
    Charlea P. Claiborne, Judge
    XETER REALTY CO. VS. L. McC. DALGARN
    No. 7359
   CHARLES F. ClAI*W)?.iTE, JUDGE.

This is a suit for partition. The defendants deny plantlff's title.

10 The petition alleyes that the plaintiff 1 ** the owner of the following property:

’ .The undirided one-half interest of an irregular square of ground hounded by Manderille, Spain, Ne Plus Ultra, and Sere Streets, in accordance with the D'Hemecourt map and the Assessment rolls; said square was formerly known as Square 12 on a plan of proper**v known as the continuation of Suburb Franklin made by P,

r. on February 25th, 1857, deposited in the office of A. Dtary Public, and had the following measurements: 320' andeville Street; 75' 7'* front on Sere Street; 57' 7M on Spain Stréet; 309' 3'*6'''front on Richelieu Street; ' 6''' on line separating said fractional square from iginally part of the Hopkins Plantation, now owned by ¿Tille and Nashville Railroad Co.;
11 that the plaintiff purchased said property from the Louisiana,through Paul Capderielle, Auditor, acting by )f Act 80 of 1888 as amended by Act 126 of 1896, by act ugust 28th, 1905, Reg. C. 0. January 31st, 1906 in Bk.208
III that said property was bid in and adjudicated to the ce by the State Tax Collector for the delinquent tax of 1882, essed in the name of J. Q. A. Fellows at an offering under Act of 1882, on February 21st, 1885, as appears by act dated Febru-'4th, 1885 before A. A. Ker, Notary, Reg, 0,0, August 29th, ik 122 p. 557;
IV that Louis Me C. Dalgarn, A. D. Preston, and Charles .v claim to be the owners of the other undivided one-of said square of ground;

Y that plaintiff is unwilling to remain any longer In indivisión of said property and desires to have a partition thereof.

He prays to he recognized as the owner -of the undivided one-half of said square, and for a partition thereof.

Labarre disclaimed any title to any part Of said property.

Dalgard and Preston denied all the allegations in plaintiff’s petition contained, and averred: That the pretended sal* the plaintiff transferred to it no ownership, and that the sale “property to John Watt by act dated June llth^ 1914 (?1904), Reg. C.O. 198 p. 601; and that John Watt, sold said property to respon* dents, Dalgarn and Preston, by act under.private signature dated June 18th, 1912 Reg.- C.O. 257 - 17;

That by act before Robert Legier, Notary, dated November 15th, 1910 Reg. C.O. 235 - 463, the City of New Orleans sold said property to W. C. Jones; and by act under private signature dated June 18th, 1912 Reg. C.O. 257 - 17 W, C. Jones sold the same to respondents;

They further averred that their vendors have had the possession of said property as owners since the date of their first purchase and that they also have had possession of the same as owa-ers since the date of their purchase; that by written lease dated June 18th, 1912 for a period ending September 1st, 1915, they leased the same to Alphonse Tricou who is in possession thereof.

Upon the trial of the esse, the plaintiff offered in evidence the act of sale before A. a. Ker, Notary, dated February 24th, 1885 by which the State Tax Collector, acting under Act 96 of 1882, adjudicated to the State for delinquent taxes of 1882 assessed against J. Cfc. A. Fellows the following property:

H0ne-half of a certain square of ground in the Third District of the City of New Orleans, in Square No. 2335, oounded by ííandeville, Spain, Sere, and Ne Plus Ultra Streets”.

It also offered the Auditor’s deed dated August 28th,19Q6, under Act 126 of 1896, to the Xeter Realty Ltd., plaintiff herein, to identically the same property described in the tax-deed to the State for $1.44.

The defendant offered in evidence the following documente? lo the Act of sale by the Auditor to John Watt* to be produced, dated June 11th, 1904, under Act No. 80 of 1888 Sec. 3 and Act 126 of 1896, to one-half of the Square No. 2335 and the certificate of registry in the Conveyance Office; 2o the act of sale under private signature from John Watt to Dalgarn and Preston dated June 18th, 1912 and the certificate of registry in the Conveyance Office. It was admitted that John Watt sold the property to Dalgarn and Preston; 3o the act of sale from the City'of New Orleans to W. C. Jones dated November 15th, 1910 before Robert Legier and the certificate of registry in the Conveyance Office; 4o the act of sale from W. C. Jones - to be produced. It was admitted that whatever title Jones required from tine City, he transferred to Dalgarn and Preston, and that Trico^gwould testify ■c.oat he was in actual possession of one-half Of square as a tenant from June 18th, 1912 to A the present time.

There was judgment for defendants and the plaintiff has appealed.

None of the documentary evidence offered by the defendants is in the transcript. The case has been submitted on briefs. Plaintiff has filed his since October 1918, but it does not appear that defendants have filed any.

Plaintiff does not deny defendants* title. On the contrary, its suit for a partition admits their title. C. C., 1330 (1253). Its contention is that it acquired "one undivided half of the Square", and that the defendant is the owner of the other undivided half, and that, therefore, it is entitled to institute an action of partition.. We do not so construe plaintiff’s title. It acquired "in iosissimis verbis "one-half of a certain square of ground &c" . We understand that description to mean a certain and determinate half of a square; in other words the one-half of the square owned by the party assessed in 1882 namely J. Q,. A. Fellows. The description may oe vague and uncertain, but that is ’■'hat we believe it me^ns. Assessors do not list porperty by undivided proportions of ownership. All property is assessed as a whole. When o^«ned by several owners in indivisión, the names of all the copro-prietors ar3 'ontioned as owners. The proportion of their ownership is not mentioned. The fact that J. CJ,. A. Fellows is alone mentioned as the owner indicates that he was believed to be the owner of the whole.- TOien the taxes on the property are not paid, the property as a whole, is adrertised for sale, and the names of the coproprietors are published in the list of delinquents, and the property assessed is sold as a whole, 33A., 1162, This is what wc.s done in this case. The property assessed and sold was the "one-half of -a certain square of ground &c" . Whether the defendants are in possession of the one-half square assessed and sold to them or to plaintiff is another question not raised here and with which we have nothing to do. the proper manner of assessing property held in indivisión is ststed in 50 A., 37, 42, 44. The case relied on by the plaintiff, Lick vs. O’Donnell, 3 Cal., 59, does not apply. In that case the vendor, owner of one lot, sold "one-half" of his lot. The Court held that the words "One-half" meant "an undivided one-half of the lot" and refused to allow testimony to explain the meaning of the words or the intention of the parties. Without criticising the opinion *we are content with saying that the facts of the two case® are different.

The judgment of the-District Court is therefore affirmed.

April 5th, 1920.


source: Caselaw Access Project

author: John 5t. Paul.

license: Public Domain

text:
    NO. 7582.
    MRS GUS L. SALOMON VS JOSEPH STASSI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor

John 5t. Paul.

This is a olaim for damages, plaintiff alleges arfl testifies that whilst living in premises belonging to defendant and leased by her husband, she had oooasion to stoop beneath a gas chandelier, and whilst she stooped the chandelier fell upon her, bruising her and bringing on a miscarriage.

There was no other eye witness to the ooourrenoe.

Her ten year old son testified that he was playing in the yard when he heard his mother ory out, and coming in, he found her lying on the floor with the chandelier beside her.

Her husband testified that when lie retu’-ned home that evening he found his wife in bad suffering, and called in the family physician; that his wife was then pregnant about two months, and the miscarriage happened that night.

The physician testified that when he called, he found the lady in bed with a hemorrage from the uterus; suffering from shook, and having five or sir bruises (spots) on the lower part of her back about one half or one inch apart; that about an hour afterwards she aborted a dead foetus of about three months growth.

This was all the evidence for the plaintiff.

For the defendant one Lambert, a plumber of thirty five years experience, testified that at the request of defendant he oalled for and obtained the chandelier next morning, and identified it as being then-in oourt; that he found it sound, but bent about one foot from the top and broken where the thread (screw) enters the socket; that the chandelier "ould not heve been hanging in that condition without being noticed; that neither the bond nor the break could have ooourred without the application of considerable foroe, suoh as by a pieoe of furniture being pressed against the ohandelier.

One Clairian, an electrician, testified that ahout, six months before the occurrence (and during plaintiff'a oooupand}' of the promises) he wired the house for eleetriolty, and in order to do so had to remore and replace this rery ohandelier; that it was then sound, unbent and unbroken; that he replaced it properly, and whan bo replaced it could sustain a thousand pounds without falling.

Prom the foregoing it is clear that the# testimony of the plaintiff and that of Clairian cannot both be true; and the faot that both husband and wife admit that they saw nothing the matter with the ohandelier before it fell is corroborative of that giren since ol. by Ciarían; bend in the ohandelier, by putting it out of plumb, would hare been noticeable at once and continiously.

The district judge, who heard the witnesses, did not accept plaintiff's version, and we cannot

Judgment Affirmed.


text:
    No. 7590.
    --- Court of Appeal----Parish of Orleans. ---
    Oscar P. Mohr- vs. Peter A. Fabacher.
    By DinFelspeil, J.
   In this cause plaintiff represents, that he is a qualified and regularly licensed Architect and prao--tioes hia profession in the City of Hew Orleans, That there was verbal contract between the defendant and himself; that as Architect he would prepare plans and specifications for remodeling and supervising the building No. 1000 Canal Street in this City of whioh defendant was lessee, and whioh premises defendant contemplated operating and conducting therein a mot-ion pioture show house or theatre.

The compensation agreed upon was to be 10/» of the total cost; that the work originally designed was to cost twenty-two hundred dollars, but that oweing to alterations, additions and changes whioh were made at the request of defendant or with his consent, and for the purpose of improving, enhancing and beautifying tne said theatre, the total cost of the work totaled C- 3.830.56, That all the work and services required was completed under his direction and supervision as Architect and accepted by defendant. That tue amount due plaintiff as compensation , 10jí of the total was #x :;383.05. He claims an-additional amount of ¿38. for a canopy furnished to the roof of tne building in ques-tion which by error and inadvertance was omitted; also, further claims the sum of Í10. for extra servioes for for laying out, supervising and installing seats in the theatre, which work wa3 done by him at defendant's re--qu83t.

Tx.e defendant in answering, among3t other things, sets up, that plaintiff was engaged both as Architect and Contractor; that plaintiff had agreed and oentrac--ted tc make all the improvements contemplated for the sum of ¿3.400., whici. a..-ount was to cover and include all cost of material, labor and profits of plaintiff, all expenses or charges incidental or in any way conneo-_-ted there with, in other words, § 3.430, under said oon--tract and understanding, that he was to pay and no more. He denies tnat he directed, or authorized, or consented, in any alterations, additions or changes, and if there were any "alterations, additions or changes at an inora -acsd cost, that the same were made or done without his knowledge or consent, and entirely upon tna responsibill -ity of plaintiff herein; that plaintiff advised him tthat the work to be done was not to be in exoess of the amount heretofore stated; denies that the work was ever oomplé--ted, that finally at the time that said picture show was opened it was done under the advise, with the consent and at the direction of the plaintiff, and further if there were any delays it was caused by plaintiff. He admits, t..at he has paid plaintiff the sum of $351.03, but denies that there is $196, due, and denies any am-ount whatsoever being due plaintiff.

The case was tried and the evidence amongst other things has this letter annexed to plaintiff's petition, addressed to defendant, of date 3-37-1916.

The letter reads;-

"Pursuant with your request I have ordered the work at your theatre building, Corner of Canal and Dryades Streets started at onoe.
It being understood that the improvement oontem--plated should be kept within Í3.300., unless other -wise agreed by you.
The work is to be subcontracted, and you are to pay for same as the progress of the work in the opinion of the writer, as Architect, justifies same."
This letter is signed by plaintiff.

Itemized statements of accounts, furnished from time to time showing items agregating '3.430, which inoludes* Architect fee of 10o. The next itemized statement shows ‘.3.177.55, then there were calls for various sums of money commencing with $500.

The next call, after acknowledging receipt for $500., was asking for a check of $1.000., for further dieburee-ments. Tills follow»! with a stat«m»nt showing a total of $3,235.16, than follows an itemized statement showing $3,636.36. Again, th*r« was a further aoknowlsgsmsnt of another ohsck of «1.000. which included the $300., Architect fses. Then follows an itemized statement flowering disbursements $3.481.. Sundry letters asking for further payments are also annexed together with 'the spo-ifications, labor and materials for the building in question, fe have carefully read same, and in acknowledging the receipt of the statements referred to to-gether with repeated demands for monies by plaintiff on defendant, the following letter from plaintiff to defendant speaks for iteelf;-

" Pursuant with your request X have ordered the work at your theatre building, Cornor of Oanal and Dryades Stress, started at once.
It being understood that the improvement contemplated should be kept within ths $3,300"., unless otherwise agreed by you.
The work ia to be auboontraoted and you are to pay for same as the progress of ths work, in ths opinion of ths writer as Architect, justifies.same."
"i.gned by plaintiff.

The testimony in the case, as in all oases of a like kind, is conflicting, one affirmatively wwaaring that he was entitled to the amounts the etateaents called for and the other denying.

The first letter, we oonoeed, from plaintiff to defendant, quoted in this opinion, fixes absolutely the ooet of the building, and ae plaintiff must make his oase certain, in our opinion, he has not done this.

In ths ease of mac Donnell -vs- Dreyfous, 144 La. Supplement, Vol. 81, Mc. 6, p. 383, the Court goes on to say;

"An Arohiteot prepared plane for a building not to exceed a certain amount and whlon plane when prepared and delivered showed that the building would exceed the price and coat atipulated. Suit was instituted and judg -ir.ent was rendered against the Architect".

The C-curt goes on to say;

"Tefendant desired to build an appartment house, employed plaintiff as Architect; that he and plaintiff, in their conversations as to what the house should cost had in mind the Arcadia Apartment House of two floors and a basement which had just been completed at an expense of £17.000., and that it would be well to have additional floors cosing §10.000. for each floor and thus increasing the prioe of the building. Rlaintiff planned a building, the probable cost of whioh, accord ing to his own_estimation would be §61.445. Fh#n the bids were called for it showed an amount far in exoeee. Specifications were furnished to defendant and oommise-ions claimed on the total amount the building would oost".

Th# Court quotes with approval the oase of Williar vs. Nagle, 109 Maryland, p. 75. " An Arohi--tect employed to 'prepare plans and specification* for the building to oost a specified sum oannot recover compensation for his services where th* building could oJr not be erected except ^a oost materially in excess of th* amount specified."

A case in this Court, O. P. Mohr-vs-J. M. Swoop, 13 th. Court of Anneal. p. 94. In that case defendant writes to plaintiff th# following letter,-

" As my former tenant has agreed to leas* th* new building for whioh you are to draw up plans and specifications, I will ask that when you have both settled on plan adopted, that you submit th* same to me for my approval. On* thing I would Impress you with I do not oar* to go over Iixlii.iil8.000,, for ooaplcte building ready for tenent to move in". Signed by defea--dant

In that: case tha Court Bay*:-

"The plaintiff had h did not seem to make any attampt to modify his plans soa as to trine tha oost of tha buil-ding down to $13.000., hut his afforts eaams to have been direotad to induce the tenants to raisa their rant and to convince the defendant that he would be getting a first class building, the coat of which would lessen to felm him by the returns of soma $3.000., which tha adjoining owners would have to make to him for their share of tha cost of the two dividing walls! In this ha failed." The suit was brought, and the Court at page 98," goes on to say,- "But inasmuch as plaintiff was limited to plans for the building not to oost more than $13.000., the rate of his commission can not be based on a lar-ger amount". Citing authorities.

In the case of Maas vs., Fernandez, 2 48 Ann. p. 264, "The Court lays down the dooterine regarding extras or additions to the contract should require proof on tha part of plaintiff for any additional oost in oonneot-ion there with"

In the case of Sarrazin -vs- Adam, 110 La. p. 124, the Court amongst other things decideij-

"The failure to build according to the oontraot and plans and specifications of the builders to the extent shown was an open and active violation of the oontraot".

We are therefore of the opinion, that the first letter of plaintiff to defendant was the oontraot between the parties and both were bound thereby unless altered or agreed to additional cost, and this this plaintiff has failed in proving and therefore his action must fail.

It is therefore, ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed, and there be now judgment in favor of the defendant, dismissing plaintiffs suit at plaintiffs oost in both Courts.


text:
    No. 7601.
    Court of Appeal, Parish of Orleans.
    Swift & Co., vs Nick Manale et al.
    BY DINKELSPEIL, J.
   The issues presented in this ease are as follows: The Plaintiffs, Swift & Co., sue Kick Manale and Veto Manale, one in the sin of §1338.60 and the other as guarantor, in the sum of §300.00.

It appears that Hiok Manale, in order to obtain credit from plaintiffs of goods, wares and merchandise before obtaining credit agreed to furnish surety or a guarantee in the sum of §300. and did so with Veto Manale as ■eewtíty, in the following words, to wit:

"In consideration of the sum of One Dollar* to the undersigned in hand paid, receipt whereof is hereby acknowledged, and the further consideration that Swift & Co., Ltd., sells goods, wares and merohan*-dies upon credit to Nick Manafte of Hew Orleans, Parish of Orleans, State of Louisiana, the undeS-signed generally and severally hereby guarantees to said Swift & Co., payment at maturity in accordance with the terms of sale of the price and value of all goods, wares and merchandise sold by it to the said Hick Manale, from time to time, on and after the date hereof until ten days notice in writing signed by the undersigned to said Swift & Co., of the withdrawal of this guarantee, it being understood that the liability of the undersigned hereby created shall not at any one time exceed two hundred dollars. The undersigned hereby waives notice of non payment and acceptance of this guarantee." Signed 3rd February, 1913. Veto Manale, witnessed by C. G. Erman.

After this contract, several years in existence, in 1917 plaintiff sold merchandise to S Hick Manale, one of the defendants herein on several oooaslons amounting to the sum of $638,66, on which account there was paid by Nick Manale on May 11th and 18th, 1917, first, $100.00 and subsequently $199'.00, leaving a balance due of $338.66.

There is no defense to this case by Kick Manale; judgment by default was confirmed against him and is final, from which no appeal has been taken.

Veto Manale, guarantor, files an exception of no cause of action, that there are no proper parties defends and and that the petition is too vague, general and indefinite to enable exceptor to properly answer. The exception of no cause of action was maintained by his Honor, the Judge a quo, from which this appeal is taken.

In the brief for exceptor there is quoted amongst other tlrtTigs the case of Douglas vs. Reynolds, 7 Peters, U.S. page 113. An examination of that case leads us to a contrary conclusion of the pleading. At page 133 of the opinion rendered by Mr. Justice Story, we find the following:

"The question involved is whether the guarantee contained in the letter is a limited or continuing guarantee, or, in other words, whether it covered advances, acceptances and instruments, in the first instanoe, to the amount of $8000. or terminated when these were discharged, or whether it covered successive advances, acceptances and instruments made to the same amount at any future time, totiea quoties, whenever the antecedent transactions were discharged. Upon deliberate consideration we are of opinion that it is the continuing guarantee, and we found ourselves upon the language, and the apparent intent and object of the letter. Every instrument of tilia sort ought to receive a falx, reasonable interpretation according to the true import of its terms, it being an acknowledgement for the debt of another there is certainly no reason for giving it an expanded signification or liberal construction beyond a fair Import of the terms," (Citing authorities)

Again at page 133, the Court goes on:

■If we examine the language or object of the present letter we think it is diffkoult to esoape from the conclusion that it was intended and was understood by all the parties as a continuing guarantee; the object was to assist Haring in business; it was not contemplated to be a single transaction or an unbroken series of transao- ' tions for a limited period."

Again at page 134 the Court goes on to express itself in this language:-

"It is rare that in oases of guarantee the language of the instrument is such as to make the division upon mu one the exaot authority for that of another. The whole words and clauses are to be construed together, and that sense is to be given to each which best comporte with the general scope and intent of the whole surety."

This court in 13th Court of Appeal, page 103, in the case of Dr. Joseph Conn vs. United States Fidelity & Guarantee Company et all, his Honor, Judge St. Paul, the organ of the Court, said:-

"The surety herein bound Itself as follows: 'Having taken full cognizance of the building contract it bound itself as surety for said contractor in the full•sum of $950. 00 in "favor of said owner, eto'. The surety was con-, demned by this judgment below for the sum of $950. to make up the deficit for the various subcontractors and for an additional sum of ten per cent attorney's fees, eto. The surety was liable not beyond the obligation of his bond, butfor that there could be no question of his liability," (Citing authorities)

The last case we find in this oonneotion is the one to be found in the Louisiana Reports, Volume 140, the oase of the Hibernia Bank & Trust Company versus the Succession of Cancienne, at page 970, reading from the syllabus !-

"One who signs as guarantor an instrument whereby he deolares that he binds himself to the amount stated in the instrument or the payment of any indebtedness of the third party named therein, of the guarantee named therein, existing whether axBcs&kKg or to be thereby incurred , expressly binding himself in solido with the principal debtor as if the debts were contracted by him in person, is not to be notified by the guarantee of the acceptance of the guarantee in order to render the guarantor liable for debts contracted on the faith of the guarantee." And at page 975 the Court goes*on to say:-

"Our opinion is that it was not neoessary for the Bank to notify the guarantor of the acceptance of his guarantee". (Giving many reasons and citing numerous authorities.) And at page 979, the Court goes on to define guarantee in this language: "A oontraot of guarantee like every other oontraot can only be made by the mutual assent of the parties. If the guarantee is signed by the guarantor, at the request of the other party, or if the latter1» agreement to aoceft is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration,however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use completes the oontraot. But if the guaranty is signed by the guarantor without any request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guarantee is in legal effeot an offer or proposal on the part of the guarantor, needing an aooept-anoe by the other party to complete the oontraot,* The Century Digest, defining the word "guaranty*

at page 3644, gives the definition to be:

"Specially in lavr- liable to pay or perform, m law, to bind oneself that the obligation of another Shall be performed, or that something affeoting the right of the person in whose favor the guaranty is made shall be done or shall ooour. To guarantee a oontraot or an undertaking by another is to bind oneself that it shall be performed or carried out. To guarantee the collection of a debt is to bind oneself to pay it if it proves not collectable by ordinary means. To guarantee any subject of a business transaction is to make oneself legally answerable for it being exaotly as represented; as the seller guaranteed the quality of the goods; the carrier gave a Bill of Lading with the words 'Quality Guaranteed." meaning that he stipulated to be answerable for the quantity specified,without any further question or dispute as to amount,"
"One who binds himself to see the stipulation or obligation of another perforated; In general, one who la re aponelbis for the performance of aone not, the truth of aone statement, eto.*
Again, quoting from the sane authority: 'Specifically in law, a separate, independent oontraot by which the guarantor undertakes in qritlng, for a valuable consideration, to be answerable for the paynent of aone particular debt, or future debts, or ths perforaanoe of some duty, in oase of the failure of another person primarily liable to pay or perfora.

Colbrook on Cal lateral securities says:-

■One nay orally assume the debt of another, making hlnselfa debtor Inmedlately, but if the engagement Is a mere guaranty of the obligation of another it anst be In writing.* Cen. Dig. p. 3644.
■Guarantee. Law. An undertaking to answer for the payment of aone debt or the performance of aone duty in oass of the failure of another liable to such paynent or performance. Worcester’s Die. p. 645."
Guarantee. An engagement made, by a third person •to secure in fulfillment of an agreement: one who beoomes surety for the performance of anothers sots; to undertake that another shall perform a oertaln stipulation; warrant; be responsible for.* Hew Websterlan Die. 1813, page 388.

Numerous other authorities olted in appellant's brief are applicable in this oase. Bate Bros., vs. Maple, 145, Cal., 241; Rouss vs. Krauss, 137 N.C. 667; Fertig vs Bartels, 78. Fed. 866.

We therefore are of the opinion that the exception, particularly the exoeption of no oause of notion, and all the other pleadings are not relied upon save and exoept the one referred to, have no application In thla oaae.

It la therefore ordered, adjudged and deoreed that the judgment of the court a quo on the exceptions he over-ruled, and that thla oaae he remanded to the lower oourt there to he tried in aooordanoe with law and the view» expreased in thla opinion,-^ooeta^to abide the final judg-> ment of the oaao.

Judgment reve raed; oaae remanded.


author: CHARI.ES E. CLAIB0R1TE, JUDGE.

text:
    Charles E. Claiborne, Judge.
    JAPHET & CO. vs SOUTHERN RY. CO. and DIRECTORc GENERAL OF R. RDS.
    No. 7614.
    November 6th, 1919.
   CHARI.ES E. CLAIB0R1TE, JUDGE.

This suit -was filed November 7th, 1918. The plaintiff4 -Reside in Houston,, Texas. They allege that the Southern Railway Company, a corporation domiciled in Richmond, Virginia, but doing business in Louisiana, is indebted to them unden-the following cause of action: thst on June 29th, 1917 ten barrels of whiskey were delivered to the defendant railway consigned to the petitioners at Houston, as appears by the defendants' bill of lading annexed to the petition; that said whiskey was destroyed at Bast St. Louis, Illinois, on July 2d, 1917 while it was in the oustody of the defendant and through its fault and negligence; and they pray for judgment against the railway company for #1202.58 the value of the whiskey.

The railway company was cited.

On January 6th, 1919, the following motion and order was filed:

"On motion of Japhet Sc Co. x x x and on suggesting to the Court, that under general order No. 50 of the Director General of Railroads, the said Director General should oe made a party defendant, or should oe made the defendant in all suits asainst railroad companies under the control and subject to the regulations of the Director General of the United States Railroad administration,"
"It is ordered by tne Court that Iff. E. lie Adoo, Director General of Railroads be made a party defendant, or be substituted in lieu of the party defendant, in the above entitled and numoered cause, and that he be duly cited to appear and answer to the petition filed herein".

The Director General was cited

The Southern Railway Company excepted "thcit this court has no jurisdiction of it or of this litigation".

The Director General of Railroads excepted "that this court has no jurisdiction of it or oi this litigation". r

The i and plaintiffs-*- suit was dismissed. Plaintiff has appealed. xception to the jurisdiction was maintained

The exception to the jurisdiction is oased upon General Order ITo. 18 issued April 9th, 1918 as amended by General Order lío. 18 A issued April 18th, 1918, v/hich reads as follows

"Vnereas the Act of Congress approved harch,21st, 1918, entitled An Act to provide for the operation of Transportation Systems while under Federal Control, provides ( Section 10 ): "That carriers while under Federal control shall he subject to all laws and liabilities as common carriers, whether arising under otate or Federal l«ws or at common law, except in so far as may be inconsistent with the provisions of this Act or with any order of the President x x x But no process, mesne or final, shall be levied against any property under -such Federal control, and
"Whereas it appears that suits against carriers for personal injuries, freight, and damage claims, are being brought in states and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies, are required to leave their trains and attend court as Yfitnesses, and travel sometimes for hundreds of miles from their work necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the just interests of the Goverment and seriously interferes with the physical operation of the railroads, and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs. It is •therefore ordered, That all suit» against carriers while under federal control must oe orought in the county or district ‘-«here the plaintiff resides at the time of tne accrual of the cause of action or in the county or district where the ca.use of action arose"*

The defendant has referred us to the case of Wainright vs Pennsylvania R. Rd. , 253 Federal Rep. p 459 décided October 22d, 1918 in kissouri in which the power of Congress to- pass the Act of ’¿arch 21, 1918 was recognized and tne right of the Director General to designate the place «here the suit should be brought was upheld -, in so far as an action instituted in a Court of the United States is concerned. See also 80 So. Rep., 770.

In Priesen vs Chicago Ry., 254 Fed. Rep. p 875 (879), (Nebraska) the Court saia they were unuule to concur in 'this opinion¿

In Cocker vs New York Ry. Co., 253 Federal Rep. p 676 (New York) the Court said in June 1918:

"It will be seen from the foregoing that this Court will dismiss any case Drought after a promulgation of the foregoing orders (18 and 18 A) in a county or District elsewhere than where the plaintiff resided at the time of tne accrual of the cause of action or where the cause of action arose", (p 677).

The plaintiff on the other hand relies upon the cases of Moore vs Atkinson Ry., 174 N. Y. S, 60, where it was held that the agents of the Government had no power to issue orders £8 or 18 A in so far as to control state courts.

To the same effect is El Paso R. Rd. vs Lovick, 210 S. W., 283.

In the matter of Jensen vs Lehigh Valley R. Co., 255 Fed Rep. 795, a motion to suostitute tne Director General of Railroads in place of defendant was denied.

In Rutherford vs Union Pacific Ry. it was said p. 881:

"It would have been an anomaly to have given the actual control of the railroads to the Director General, and to have r^ovided that suits arising out of his acts 1 should oe orought against tne corporations who had been divested of authority over those acts".

By analogy it would be unreasonable to hold tha-t a suit could be brought against the Director for a breach of contract committed before he took charge. -

In the midst of this conflict of opinions we prefer to adopt the learned an^ clepr opinion .of__Judge Rufus E. Poster of the United States ])ffstrict Court^ that the jurisprudence of the State Courts should be in harmony with the Federal jurisprudence in this District. In the case of Johnson vs Mc Adoo, 257 Federal Reporter p 757 the Jud/e said;

"Under Act March 21, 1918 litigants could sue railroad companies under federal direction, just as tney had previously oeen aole to do and in such courts as had Jurisdiction under the general law. It was competent for the federal Director ^«neral of ‘Railroads to stipulate in what jurisdiction he night be sued, out /.is authority to make rules and regulations did not authorize the setting aside of the plain provisions of Act March 21 of 1918 as to the railroad companies",

For these reasons the Judgment below is affirmed p.s to ▼ • G. lie Adoo, Director General of Railroads; but reversed as to the defendant railroad, and it is now ordered chat the exception of the defendant tne Southern Railway Company oe over ruled and dismissed .nid that tuis case as to it oe remaned to the District Court to oe tried according to law.

Judgment amended and affirmed.

Honday, hove Acer 6th, 1919.


text:
    No. 7616.
    Court of Appeal---Parish of Orleans.
    Mrs. William Brockhoeft -vs- Life Insurance Company of Virginia.
    Einkslene11. J.
   Plaintiff, assisted fey her husband, tarings this suit against ttas Life Insurance Company of Virginia, domiciled in Richmond, Virginia, for the sum of $334.40, for this to-wlt:

that haying tasen duly reoognized as the sole and only heir of her late ferother, John Haydel, and as suoh entitled and sent into possession of two oertaln policies of life insurance '’on the life of her said brother in defendants company, and which said defendant cbmpany refuses to pay, all of which appears fey the judgment and proceedings in the succession of her brother, being numbered 118, 873, of the dooket of the Ciril Dlstrlot Court; she paays to fee reoognized, put in possession and that the defendant company pay her the amount in question*

The answer of the defendant oompany admits liability and has deposited the money in the registry of the Ciril Bistrlot Court.

Pending the proceedings an interrentlon was filed in behalf of the Succession of Joseph Rumore, said Succession being represented by Mrs. Loula Rumore Bruno, administratrix, resisting the demand of plaintiff and denying all of the allegations in her petition, and further alleging, that there were two polio--ies 4 Issued on the life of the deceased Haydel; that the deoeased had requested a ohange of benefioiary, at different times, whloh more fully appears by the original transfers in the poliolee themselres; that the lnterrenor is entitled to receive the benefits under said' policies aggregating the sum of |360.00, and pleading in the alternatire, in the erent that the Courts should hold that said transfers did not constitute a ralid ohange of beneficiaries so as to make her and the Suooesslon the beneficiary under the polloies in x question, then avers that Joseph Rumore paid the lnsuranoe premiums da-said under said policies from the date of the said before mentioned transfers, to-wlt, March, 36th. 1907, up to the death of said, assured in all amounting to the ana of ♦176.00., and in oase that she is not recognised as the owner of the money in question, as prayed for, that the amount of premiums, to-wlt: the sum of |176.00., Vs paid her hy preferenos over all other persons out of the benefits aoorulng under said policies.

The answer of defendant oompany claims that the amount involved in this oase was subjeot to a deduotlon under the terms of the policies hy reason of the misstatement of the age of the assured thus reducing the claim liability to |334.40., whloh amount it has paid into the registry of the Court, and depositing the money admits its llabll--lty to that extent and asks for proteotlon from suits against it.

The issues thus made between the parties was deolded hy his Honor, Judge H. C. Cage, of Division 'A', from w whloh this appeal is taken, in an able opinion whloh we adopt as our own, and is as follows:

■John Haydel, who was not married, and had neither asoen-dants nor deoendants, on the 16th. of May, 1904, took out a life insurance polloy, being number 1433901, in the life Insurance Oompany of Virginia, for the sum of Seventy-four Dollars, the amount Insured being made, by the terms of ths polloy, payable to his executors or administrators, being, therefore, what is commonly known as a life lnsuranos pol--ioy, payable to the estate of the insured.

■On the 10th. of Deoeabar, 1916, John Haydel took out another polloy, being No. 1763065, in the Life Insurance Company of Virginia, for the sum of #186.00., made ap payable ■unto the person named as beneficiary under this polloy', whloh is also, neoessarlly, ons in favor of his estate when dead.

■On the 36th. day of Marok, 1907, ko assigned hla right! fc In and to tha polioy Ho. 1763065, ky a doonaant In whloh ha designated Joaaph Ruaore as tha hanaflolary thereof, at tha a sane tine handing, to Ronora tha polioy *o. 1763066, for 1186.00.

■On tha sane day and In tha sane aanner, ha aaslgned the polioy Ho.1433901, to Joseph Rumors, handing hla tha assignment and the polioy.

■John Haydel died Intestate, In this City, on April 18th. 1915, leaving as hla sola legal hair hla slater, Mrs. Josephine Haydel, wife of Wllllaa Irookhoeft, and on June 11th. 1915, this sister opened his sueoesslon in tha Oivil hlstrlot Court for tha Parish of Orleans, under the Ho.113875, set up these facts,set up that the only personal property left hy the deoeased was tha prooaeds of these two Insurance policies, amounting to $334.40., ad asked to he recognised as the sole and only heir of John Haydel, and as suoh to ha sent Into possession of his estate, subject to whatever da debts he left, and on this application a judgment was rendered and signed June 14th. 1915, reoognixlng her as tha sole hair and sent Into possession of his estate and par--tloularly of the two life Insurance policies hereinbefore described.

■That thereafter, on April 38th, 1918, she brought this suit against the Life Insurance Company of Virginia for $334.40, basing her oause of aotlon upon her heirship and judgment reoognixlng her as the sole heir of John Haydel and as suoh sending her Into possession.

■As In the mean time Joseph Rumore had notified the Insurance Company of the assignment and transfer to him of all the rights of Haydel under and In and tot the said polioy, the life Insurance Company of Virginia deposited the sub admitted hy them to be due, namely, $334.40, in the registry of the Court.

"Thereupon, on July 6th, 1916, Joseph Rumore In the meantime haring died., his suooesslon, through Mrs. Louisa Rumore Bruno, administratrix of his estate. Intervened In this suit and set up the assignments hereinbefore desorlbed, and olalm-ed the proceeds of the policies which the lnterrenor alleged to he |360.00 Instead of 1334.40,nbut lnterrenor also alleged, In the petition of interrentlon, that Rumore had paid premium a on the polioles aggregating $176.00 and therefore the Succession lnterrenor prayed for judgment against the Life Insurance Company of Virginia in the sum of $360.00, or, In the alteraa*! tire, for the amount of premiums paid.

* On the trial of the oase there seems to be no question that owing to misstatement of age the face value of the poll-oles was reduoed from the sum of $360.00 to the sum deposited In the Registry of the Court $334.40, and the litigation before the Court is as to which litigant shall get the amount deposited In the Court, the legal heir, Mrs. Brookhoeft, or the Inter-vener, The Suooesslon of Rumore."

* lira «Brookhoeft first pleads that the assignment to Rumore Is null and void and against public polioy, he being neither a relative dependent upon Baydel norm creditor of Haydel."

■ In the Suooesslon of Hearing, 36th., La., A.337, the Court sald:-

■A man may take out a polioy of insurance on his life and name anyone, ox having taken It out In his own name he may, with the oonsent of the Insurers, transfer It to whom he pleases*.

* this authority was quited with approval by the Supreme Court In the case of New York Life Insurance Company Vs. Murtagh, et al, 137 La. A, at page 760, et seq, and in that case the Supreme Court said that this dootrine bad been approved In the following oases:- 46th., Ann, 247; 25 L.R.A. 637; 127 Mich, 266; and quoted with approval from the dlota of the Hiohlgan Court the followlng:-

* The insurance of one's life for the benefit of another having no Insurable Interest therein Is not oontrary to publlo polioy".

* Under these authorities. It le plain that the objmotion that transferree Instituted as bsnefloiary. Rumore, had ao Satsrest In the Ufa o| Haydel, la without merit.*

" The aeoond objection nada hy Mrs. Iroekhoeft, to the olaim of tha Intervenor, Buooession of Rumore, is that the assignments introdneed in evldenoe have the following olausee:-

■ In oaae of change of henefioiary to he friend, creditor, relative hy marriage, or any other person not having a lawful Insurable interest la the life insured, a letter giving full particulars as to why suoh change is desired must accompany this form, signed hy the insured.*
* This form is to he drawn in duplicate, one copy to he attached to the Polloy and the other forwarded to the Homs Office to he filed with the application*.

■She argues from this that under the authority of New York Life Insurance Company Vs. Mutagh, 137 La. Ann, 760, that the assignment is null and wold.*

* An examination of that authority shwos that the policy of insurance itself, which- as the oo$traot and the law between the parties, contained a clause that no change of henefioiary should take effect until endorsed on the policy hy the Company at its Home Office, and the Court held, that the oontract was the law between the parties and that as this had not been oom-plisd with that no ohange of henefioiary took place until these conditions of the policy has been fulfilled".

•Thsra is no such olause in the policies sued on and the memorandum placed hy Mrs. Brookhoeft not being part of the contract between Haydel and the Insurant» Oeagany can have no effeot*.

* In my opinion the law that governs this case is Articles 3643 and 3643 of the Civil Code, read together:

•Art.3643, *In the transfer of oredlts, rights or claims to a third.person, the delivery takes place between the transfer-rer, and transferres hy the giving of the title".
■Art.3643 *The transíerrees is only possessed,as it regards third persons, after notice has been given to the debtor of the transfer having taken place.*
■The traasferreee may nevertheless beoome possessed by' the aoceptanoe of the transfer hy the debtor in an authorito actI

■The policies themselves were the titles so far as this case is oonoemed and the delivery of them by Haydel to Rumore at the time of the assignment, transfer, change of beneficiary, made tJs the transaction complete as between Haydel and Rumore*.

■Urs. Irookhoeft plainly cannot claim to be a third person In the sense of Article 3643 for the reason that she appears herein not as a creditor or forced heir of Haydel but, she claims, as a legal heir, standing in the shoes of Haydel, having aocepted his succession purely and simply and therefore she is, as to this transaction, the transferree, and the contract was complete at the date of the transfer and the handing and the delivery of the titles.#

* Let there be judgment entered in favor of the Life Insurance Company of Virginia, declaring that the deposit by it of Tiro hundred and twenty four and 40/100 ($334.00) Collars in the Registry of the Court was fully discharged of all its obligations in the premises and hence dismissing it with its costs; let there be further judgment against the plaintiff, Urs.William Irookhoeft dismissing her suit at her costs; and let there be further judgment in favor of the Succession of Rumore recognizing it as the transferree and beneflolary of the policies sued on, and as such entitled to recover and receive the $334.4q deposited in the Registry of the Court, and ordering Thomas Con-nell, Clerk, to turn over said amount to her, with accrued interest, and let all the oosts of these proceedings be paid by the plaintiff, Urs. Brookheeft."


author: Per Curiam;

text:
      NO. 7619
    IN RE, AZTEC LAND COMPANY, Ltd. PRAYING FOR CONFIRMATION OF TITLE.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   Per Curiam;

St. Paul, Judge.

The Motion to Dismiss was overlooked because it was filed only on thw day of argument, was not pressed in the oral argument, and was nontidned again only at the very end of a long brief, where it esoaped our attention.

Be that as it may; the motion is without merit. It is based on four grounds which, for conveníanos we consider in the following ordo’-;

1. That the Supreme Sourt was without Jurisdiction to transfer the oase under Act 19 of 1912. This is in effect an attack on the constitutionality of that not. But upon this wo have already passed in Succession of Huron, No. 7282 of our dooket, wherein we held thut the aot did nothing more than provide a method of lodging an anneal, under certain oiroumstanoes, in n court having jurisdiction: which was undoubtedly within the provinoe and power of a Legislative aot.

2. That the appellant made no affidavit to fluwtify /£«•»+ the transfer under Aot 66 of I9f*- But Aot 19 of 1912, amending and re-enaoting that aot, requires no such affidavit as did the first; and the title of the last aot shows that it was tyf, Intended to contain the whole law on the subjeot of transferring appeals.

8. Shat tha appeal bona «aa aot algaad by tha Surity (aa auoh) ■ But tha but tty aid sign the boat aa attorney fok the appellant; and being aantlonad therein aa aurtty. ha la estopped froa denying hie aurttyahlp. Bee auaoeaelaa of Oarolla, Bo, 7T14 of oar dookst, and authorities there altad.

4. Shat no days of grase are allowed for the transfer; asanlng, that tha Suprene Court did not fin a delay within whloh the appellant alght rsaore the tranaerlpt to thla oeurt, aa It alght (of shouldT) hare done under aeotlon £ of the aot of 1912. Bat the appellant waa aurely entitled to a reasonable tine In whloh to do ao, and only IT daya elapsed froa the finality of the deoree and the filing ef the reoord hare; towit, from April 14th to Kay 1st.

Uoreorer the notion to dlealas waa nade only on Am goth, although the reoord had been in the hands of oounael for the appellee slnoe June 6th; and waa therefore too late for ua eTen to entertain It on the three last grounds. Milano vs Greco, 13 Orleans Appeals 134 (137); Sammons vs N. O. Ry & Light Co, 143 La 731; La. Digest, Verbo Appeal, Section 526.

II.

In holding that Aot 107 of 1898 was applicable to the lnjunet ion sued out by appellee, we but followed Barton ra Burbank, 138 La 999, tha last expression of the Suprene Oourt on that point. She natter before us waa continued Indefinitely on Sorenber 8th 1906, and thereafter no further steps were taken In the proseontlon thereof for nore than fire yean, 1. e. up to Ootober 10th 1912, when the lajunotlon suit waa dlsnlssed ex parte on notion of appellant. In Petit ra Depaaa, Be. 7681 of our dooket, we halt! that Aot 107 of 1898 waa self oporatlra: henos the suit was properly "strloken froa tha dooket on suggestion of a party In Interest." Teutenia Lean &c Co vs Connolly, 133 La 402.

III.

Appellee urge» however, that we should have considered his second injunction, taken oat January 16th 1916, an! not his Injunction of June 14th 1904, dismisses as aforesaid on October 10th 1912.

In this it is possible he may be right. A forosd aban» dormant oan have no greater effect than a voluntary discontinuance, and a tiHiUff discontinúanos oan no more be reg^jadlaaia than a non-suit. It is true that a dead suit cannot be revived, but the plain itself nay always be asserted the anew as long as it has not been judioially rejected. And^only plaoe to sue out the second injunction was the proceeding in which the writ of seizure and possession Issued.

But even so appellee can take nothing thereby. In our opinion (in fine) we said; "On the merits of this controversy there can be ho doubt that plaintiff in injunction has not made out his case; on the contrary all the facts and the law are with the azteo land Co". This was the unanimous conclusion of the judge^after hearing the two oral arguments and considering the four briefs on behalf of appdllee. If we disposed of the case on another point it was because we then deemed it incumbent upon us to do so; but we perceive no error _in our decree.

Briefly, the issue involved is the validity of a tax sale and an Auditor's deed. The state thought and sold, as the property of Robert Simon or Simeon, a lot of ground in square 469 bounded by St. Philip, lumaine, Senois and Bayou St John, measuring 121 feet front on Bayou St John by 160 feet in depth.

The property of whioh the Azteo land Company seeks to gain possession, and of which ### plaintiff in injunction claims ownership, measures according to the petition for injunction,"119 feet front On said Bayou St John, 170 feet in depth on one side and 160 feet or more in depth on the other side; said property forming a perfect triangle;" wfcQrin it ia averred however, that the property ia not bounded by any of the streets mentioned; that Genois and St Philip streets are not opened, and if they ware opened there would be no such depth as 150 feet. But the fact remains that the property does lie entirely within (or almost within) the pro .looted lines of the streets aforementioned; and it was, when sold for taxes in 1885, the property of Robert Simeon, and not of the appellee who purchased from the Heirs of Simeon only in 1900; at which time, 1885 (and even to this date), said Simeon owned no other property in that vicinity, the rest of the larger tract of land which later on figures in this controversy, being then the property of Mrs..Xouis Pondal (Transcript p. 55)

X, Thus, it will be seen that the description in the tax deed to the state, though not perfect, yet very clearly identifies what property belonging to Simeon it was intended to assess and sell for taxes, towit, all that he had purchased from Mrs. Pondal (Tr« p. 56), and was therefore sufficient to convey title thereto. Weber's Heirs vs Martinez, 125 La 663; In re Perrault's Estate, 128 La 454; Vanetta vs Busby, 131 La 681; Soutra vs Armheim, 1 Orleans Appeals 99; La Meadows Co Vs Commercial Security Co, 12 Orleans Appeals 415 and 13 Orleans Appeals 27. And the Auditor's deed oonveys the very same property the State aoquired. Quaker Realty Co vs O'Rourke, 13 Orleans Appeals 144.

2. There was no obligation on the part of the tax oollactot under the acts of 1880 p. 94 and 1882 p. 126, to "correct" the description, unless he "discovered” the inoorreotness thereof, if any; and there is no evidenoe that he did.

3. The auditor wae not reqdirS'd to oolleot the City taxes when ha sold. Lavedan vs Choppin 119 La 1060.

4. The alleged possession of 30 years by Simeon and hla heirs is not proven.

The Motion to Bísalas la therefore Benled, and a Rehearing ia refused.

New Orleans, La, January 12th1920


author: John 3t. Paul. John St. Paul Judge.

text:
    NO. 7621.
    AMERICAN BREWING CO. VS LOUIS ARTIQUES.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIIIOH.

By his Honor

John 3t. Paul.

Plaintiff aoquirad a mortgage and randor'a lian upon defendant'a property, and thereby a lion on the fire insurance covering same (Act 868 Of 1914 p. 689)

Ihe property was damaged by fire, and plaintiff oolleoted the unt of the loas; which (with the consent of defendant) it Imputed to partial extinguishment of a certain open aooount due It by defendant,

Bendish A He mande* were employed to repair the fire damage and started to do so. When they had practically completed the work (that is to say #248 out of #296) another fire occurred; and again plaintiff oolleoted the amount of the loss. This amount it now imputed (with the consent of defendant) in part to the final extinguishment of the open aooount, and the rest upon the mortgage note.

Plaintiff then foreclosed, but the prooeeds of sale did not suffice to extinguish both the mortgage, and the lien which Bendish A Hernandez had in the meantime recorded against the property; whereupon plaintiff took this rule to cancel the latter's lien on the ground that it was not recorded in time to prime plaintiffs' claim.

II.

It is quite true that Bendish A Hernandez failed to record their lien in time to give it preference over pre-existing encumbrances. But the oircumstances under whioh that ooourred wore as follows;

I. The oontraot for repairs was made not only with the defendant, but plaintiff itself was a party thereto.

2. Bendish A Hernandez were called upon by plaintiff (in making proofs of loss for the seoond fire) to make proof concerning the work done by them; and that work was taken into consideration in adjusting the loss.

8. The proofs of loss furnished by Bendish A Hernandez were made after a promise to pay by plaintiff's secretary; and only upon an expresa promise by plaintiff's attorney that the olalm would be paid out of the insurance money.

This was the testimony giren in op^njoourJ (with the written oontraot before it, addressed to the and is absolutely uncontradioted, but on the contrary praotloally admitted; and evidently relying upon these promises, Bendlsh It Hernandez did not reoord their claim, but waited to be paid.

III.

Thereafter plaintiff collected the insurance money, without the knowledge of Bendlsh It Hernandez; and then flatly refused to pay the latter, who then (and then only) prooeeded to reoord their claim.

IT.

As plaintiff was a party to the oontraot with Bendlzh s> Hernandez there was no need for the latter to reoord it so as to affect plaintiff.(C. C. 8274)'

But eren if plaintiff had not been a party to the oontraot the course it pursued was such that it is now estopped from setting up the. want of registry. For where a person leads another into the belief that his claim is safe without the necessity of recording same, he at least cannot thereafter complain of the want of registry and draw for himself any advantage therefrom. Burdeau vs Dorsey, 7 Orleans Appeals 360; Mc Duffie vs Walker, 126 La 152.

The judgment of the court below(based upon other considerations not pettinent now) ordered the cancellation of the inscription purely and simply. Henoe it must be amended by providing for the payment of the claim.

Sinoe the above was written we notloe that we erroneously stated that part of the insurance money was imputed to the mortgage note. This was error; on the oontrary, plaintiff having received #1696 imputed only #1300 to the open account, which left #296 in suspense, being exaotly the amount of the Bendish claim. This oonfirms us in the conclusion that plaintiff first meant to pay the olalm, and aotually reserved the money to do so.

It la therefore ordered. that tha judgment appealad, fro* ha amended by adding thereto that the Clrll Sheriff he directed to pay to Bendleh It le mande x, out of the proseada of sale now In hla hands, the atm of Two landred and forty two Bollara f$£dS) and the coats of these proceedings; and as thus tus*ndad the judgment Is affirmed.

ON APPLICATION POR REHEARING.

Per Curiam;

His Honor

John St. Paul Judge.

Plaintiff asks for a rehearing heoause (quoting from the '.'brief), "This was a rule to cancel a mechanics lien against the mortgaged property. The lien was olaimed under a contraot with _t££. ownerjrf of the property. The oourt was asked to decide whether there was a iien, and both sides conceded this was the issue „ Your Honors have decided a wholly different question, as is evidenced # by the qyllabus of the opinion, x x x x The American Browing CO. was not a party to this contraot, although the court has unconditionally made the statement that it was. x x x x"

The first paragraph of our syllabus reads; "As between •parties to a contract, registry thereof is not requiredj"jln support of which we cited C. C. 3274

'lie did state that "plaintiff was a party to the contract," and we made that statement upon the unoontradioted testimony of the Claimant (Bendishh, p„ 13 and again p. 3) that the contraot was faddressed to the Brewery", that the Brewery through its Secretary, "had a copy of it." This contraot was signed by Bendisoh and by Artiques, and was sent to the ###### Brewery for signature by it, because (in the language of the brief) the Brewery "had an interest as a mortgagee in seeing that the contraot Tray’cotipleted". and because it had collected, or was about to collect from the underwriters, the cost of the very repairs to be made by Bendisoh. If the Brewing Comparer did not sign the contraot, it »«- only an oversight, and its signature thereto was wholly unnecessary when it permitted the work to go on under that contract.

Por Bendish had a right to hallara, and did heliara, that the inauranoe mousy viao to ha used to pay the repairs whioh ha was about to make, for the benefit and with the knowledge of the Brewery,

Hor was that belief unfounded, for according to the mcontradioted testimony of Artigues the Brewery collected $1596 of insurance, according to the testimony of Boulet only ‡1000 was imputed to the open aocount, and the note and pleadings show that the balance of $295 was not lnputed on this laBt account. So that the $295^flllfíHfrM»as therefore never imputed to either aocount, but held apart for soma purpose whioh could be none other than the payment of this claim.

We think these circumstances warrant the finding of an implied (if not express) promise on the part of plaintiffto pay Bendisoh for the work, out of the money collected from the insurance company for that purpose, and hence plaintiff "was a party to the contract”.

The question "whose credit wa3 pledged” on a contract, iB one depending on the particular circumstances of each casa. $té Campbell vs Hicholaon, 12 Rob 428.

Rehearing refused.

New Orleans La, January 12th, 19120


author: CHARLES F. CLAI30H1ÍE, JUDGE.

text:
    Charler F. C1aibor~e, Jud~o.
    FERNAND WHITE vs. JOHN E. ALLEN.
    No. 7623
    November 6th, 1919.
   CHARLES F. CLAI30H1ÍE, JUDGE.

This suit was filed October 31st, 1916. The plain)tiff alleged that on July 9th, 1914 the late Charles R. Kennedy -employed him*in writing .to sell a certain property,and 9 1 / agreed to pay him a commission of three per cent on the price of sale if sold before July loth, 1914; that in pursuance of said employment petitioner procured Krs. Pierre Bagur as a purchaser for $7000 before said date, and the sale to her was consummated on August 12th, 1914 for said price; that subsequent ly the said Kennedy died leaving as universal legatee the defend ant herein, John-E. Allen, who has been recognized and put in possession as such of all the property left by said Kennedy; that neither the said Kennedy not the said Allen has paid the claim notwithstanding amicable demand.

The truth of the allegations was attested by the plaintiff.

The defendant admitted that Kennedy was dead and that he was his universal legatee; but denied all the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed. •

The document sued on is in the following words;

"New Orleans, July 9th, 1914.
Hr. 3?. White
Dear Sir,
X hereby authorize you exclusively to sell my real estate, described as follows: No. 1202 >i, Dor¿snoi-a Strc-t - description: one story cottage corner Hos ;ital St. If the aoove property is sold by ..Ü or any of :-t person during t?:e time it is in your íu':Jm1s Tuesday July 13, 1914, from datft \ «reof, I bind nj’-ftM'i.f to pay you 3 per cant commission on account of sale.
Yours! very truly,
Signed " Cha». R. Kennedy.

Albert Bagur, a brother-in-law of I£re. Pierre Bagur¿ testified that he acted for her in the purchase of the property; that his negotiations were with the plaintiff Fernand White alone, who sold the property to hita; the agreement of sale was made ujson July 11th, 1914 and on that day ho ¿av* him a check for $700 representing a ben per cent deposit. Fernand White did not testify; on the day of the trial he v/as dead.

The defendant offered no evidence. His argument is that plaintiff’s delay in filing this suit and his inaction until after the death of -Kennedy made his claim suspicious and required that it be established with more than reasonable certainty. Süch is the jurisprudence fixed by a long line of de-j0 cisiona./ 5 A., 140; 7 A., 555; 10 A., 279; 14 A.. 317, Succession - Rice; 33 1., 1005; 39 A., 684; 40 A., 560; (570); 41 A., 248, ^ 489, 657^.(6621; 50 A., 1220 (1226); 52 A., 1766; Hanning's r Unr. c&ses 9SÍ 121**3391 114 La., 60S; ‘30 Cyc 1273**/ / ? &?/ #<*- z-77— 3S~X

/ This jurisprudence has been cry^tailizea into law by Act Ho. 207 of 1906 p. 361, which reads as follows:

"That from and after the promulgation of this Act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except if consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknov/ledgment or promise to pay signed by the debtor; or unless an action upon the asserted inrteotednsj* shall have born brought within a delay of twelve aonths after the decease of the deotor".

e of tne opinion that the plaintiff has satisfied the exigencies of both the jurisrjrudence and the statute. The contract of employment and the coaoensation stipulated are in writing f,:/J the genuineness of t'-o docuient and of t¡ e signature are ad-.itted; r-:,A i*c is ¿stabli* with absolute certainty by lh-j testimony of a ^rediole v/itness that tne work contemplated oy the contract was performed by th* plaintiff. Hi» delay in urging tha claim may he explained hy the fact that Kennedy was detained hy sickness at his home when the act of sale was passed, and perhaps his illness continued up to the time of his death. Under these circumstances the plaintiff might well have hesitated to prBss hilt claim.

The defendant argues that hy reason of 'tnis delay plaintiff must prove that his claim was not paid. Such is not the law. Article 2232 (2229) of the Civil Code reads as follows:

"He who claims the execution of an obligation /t*á>- ¿ J> mil. /f^)must prove it. On the other hand, he who contends that he is exonerated, must prove the payment or / / ^ fact which has produced the extinction of the ob^Jgation”

time and inaction affect only tne question la]>ée of time and inaction affect only tne questio of evidence. The older the claim, the greater the presumption grows that it has been paid, and the less evidence it requires to prove the payment. 5 A., 140; 2 La., 480; 3 La., 169.

But in this case there is no plea of payment, nor commencement of proof of that fact, and as we have seen the burden of proof is upon the defendant to establish it.

Judgment affirmed.

November 6th,1919.


author: John St. Paul.

text:
    NO. 7626.
    LEOPOLD WOLFF. VS J. M. GOLDSMITH.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OEIHIOH,

Bv his Honor

John St. Paul.

Da-fondant was manager and general agent of a life Insurnace Como*tiv, and -olaintiff wa“ a solicitor or soeoial agent in his employ.

\ Bv the terms of the contract Between them olaintiff was to reoeire in addition to his recular commission on first vear oremiums, certain other commissions on renewal oremiums,conditioned however "that the Aergnt (plaintiff) remain oontinuouslv in the emnlov of the Manaa-er (defendant)."

This is a suit for those other and additional premiums: and the defense is, that the olaintiff is no lone-er in the emnlov of defendant, having Been discharged for cause.

Whilst, it is written in the contract that either oartv mav terminate it at oleasure on seven days notice, it is not claimed Bv everqised defendant that this right might Be ###### By him without pause to the prejudice of Dlalntiff's claims for the additional commissions aforesaid/ and indeed, the last paragraph of section Id of the contract seems to contemplate that the defendant may not do so; since it provides that, "in case there shall Be any question as to the violation of the conditions of this contract By the Agent at the date of the termination of this contract, the question shall Be referred to the Company for its decission, and its decision shall Be final."

So that phase of the question does not present itself here; and the only íbsub Before us, is whether or not defendant had a just cause for discharging plaintiff.

In this connection it is also written into the contract that, "if the Agent (plaintiff) fails to comply with any of the duties, conditions- or obligations of this contract the Hanager (defendant) may terminate same upon Immediate notice." TZbioh of course Is nothing But the general law (as will hereafter appear).

The contract further provides that the Agent (plaintiff) shall he governed in the business of his agency by the instructions he may from time to time receive, orally or in writing, from the Manager (defendant); and by the written or printed rules of the Conpany." Vihioh is also only the general law.

How among the rules of the company (with which plaintiff was of course familiar) there is one which provides that, "All collections made by Agents xx must be turned over to xxx Managers the day they are made ." It was also well known to plaintiff that Special Agents were not authorised to oolleot premiums other than the first; and. that the Company recognized no payment except in exchange for its official receipts, issued by the Home Office and entrusted only to Seneral Agents and Managers.

Moreover the Manager (defendant) had repeatedly warned plaintiff, both orally and in writing, that he had no authority to collect renewal premiums, and should not do so; but that if he did so, he must remit the «mount in the same day on which the collection was made»"

Yet in spite of the well known rules of the Company, and of express and particular instructions from defendant, plaintiff nevertheless persisted in collecting renewal premiums, without the official receipts (which he did not have), and instead of remitting suoh collections on the same day, kept the same for periods as long as thirty days; with the consequanoe that the manager, having no knowledge of the paymente, aent notloes of delinquency in due course to the policy holders, who thereupon protested that they had paid through the agent (plaintiff).

This necessitated always a three cornered correspondence between the Manager, the Polioy Holder and the Agent; whloh of oourse was um atiéfaotory and exasperating to the two former, and brought frlotia between all three. In fine, defendant testifies that he feared, that as a result of this state of affairs his own position with the oompany was being jaopardiied.

Acoordlngly ho discharged the plaintiff.

The trial judge thought, and so do we, that defendant was fully justified in auoh a course. In his written reasons for Judgment the learned'judge summarizes the whole oase thus: "The evidence clearly shows that this is a oase in whioh the employer and the employee disagreed as to whether the business was to he run in the manner in whioh the employer wanted, or in the manner in whioh the employe# wanted; and the defendant (the employer) would not stand for it."

Por of oourse an employer has a right to make rules for the oonduot of his business, whioh his employee is bound to obey; ana a breach of such rules is Just oause for a discharge.

The rule on this subject is thus laid down in the Cyclopedia of law and Proceedure; "As a general proposition any act of a servant whioh injures, or has a tendency to injure, his masters business, interests or reputation, will, justify his dismissal, x x x A master is justified in discharging his servant for any breach of the express or implied conditions of the contract of employment.” 26 Cyc 988, 989. (Yerbo; Raster and servant)

In Vicknair vs Southside Plantation Co, 10 Orleans Appeals 43, the court held that the refusal of an employee to obey an apparently reasonable order from his employer, amounted to a defiance of authority, and warranted his discharge.

In Kenner vs Southwestern Oil Co, 113 La 80, the Supreme Court said; "disobedience of lawful and reasonable orders connected with his employment, affords just grounds for the discharge of an employee."

In this last oase the grounds for discharge were, that the employee failed and refused to send dally reports of his sales when directed to do so, although no injury was shown to have resulted therefrom.

It is said the defendant condoned the acts of plaintiff because he acoepted the belated payments, or charged them to plaintiffs account; and that he insisted that collections "if made" should be remitted the same day.

Of oourse a vigorbus protest (suoh as defendant repeatedly made) against plaintiff making suoh collections, cannot dMUMF ¿jjmmÜW'.i'ddrasWiafiMrjurfbeB- he construed into an acquiescence in that course, even if defendant did recognize a "fait accompli" and accepted the company's ,jU3t dues through that' irregular channel. But even conceding this to he, yet it is quite certain that defendant never for a moment acquiesced in plaintiff's failure to remit such collections the same day; for it was just "that practice which defendant and the Company most strongly objected to. Had plaintiff observed that part of his instructions, the other matter might never have been complained of. But plaintiff would not have it so.

It is also claimed that defendant condoned plaintiff's teta by inviting him, just a few days before the diaoharge, to take part in a ooapeny reJojoin* and banquet; of whieh defendant bore part of the expense#, this le not sound. The invitation was general, and doubtleae Issued to plaintiff as a wore matter of oourse, he being then still in the employ of defendant. Moreover that was to be an oeeasion of good feeling and freedom from business eares; and as the guests were not expected to bring their cares and gretvaneas with them, still less was the host permitted to do so himself.

The judgment below was for the defendant, and it appears to ua eorreet.

JaAgMnt

Dlnkelsplel, J, reeused.

New Orleans La, November 24th, 1919.


text:
    NO. 7627.
    DE SOTO BUILDING CO, LTD VS M. L. KOHNSTAMM.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opiaioa.

By his Honor

John St. Paul.

This la a auit for rent; the iasne is, "Was there erer a Completed contract between the parties?"

Defendant addressed and submitted to one "Deo Fallman" an offer to rent certain premises for a certain time and for a certain mon-t;hXy rental; which offer oontained this clause; "It is understood and agreed that, if this offer is aooepted, lease on your form and rent notes will be immediately signed; further, that the right that either party would hare to withdraw from this agreement at any time before the actual signing of the lease and rent notes is waired, renounced and abandoned; and that the contrast of lease becomes final, irrevocable and executory by acceptance of this proposition."

At the bottom of the offer Feliman wrote; "Aooepted; Deo Fellman, President De Soto Building Co;" the said Company being a I corporation and being the owner of the premises. I

I

Assuming for the moment, that Fellman was authorised to aot for the Corporation, ‘we think the offer and its aooeptanoe constitute! a oompleted contract between the parties.

The case does not oome within the oircumstances of Laroussini vs Werlein, 52 An 426 (followed ## in Woodville vs Kantrowits, 115 La. 810) where it is announced, (somewhat too broadly however) that a verbal or written agreement is not binding if it oontain in itself an agreement to execute a subsequent and more formal written agreement on the same aubjeot.

Of course that dootrine is absolutely true when the parties have left something still in abeyance, and to be agreed upon at the time of oonfeoting the later Instrument; because in that oase there has been as yet no oomplete aooord between the parties, who remain still at liberty to disagree about those phases of the matter whieh have not yet been oonoluded.

But on principio it would seen otherwise where the parties haws agreed as to all the tema of their oontraot, and there remains nothing now to he done hut the purely -physical and quasl-neohandnleal, aet of putting those terns in written fom; and so our Supreme Court has held la Kaplan vs Whitworth, 116 La 337. See also 9 Cyc 282, (Bote 99). ~

And to put the matter at rest,(so far as we can), we may now cay that in the Vferleln oaae where the agreement was Terhal and informal, the eourt found as a faot. that owing to tho nature and magnitude of the transaction inrolyed, the oourse of proceeding hetwee* the parties on former oeoasions, and the evident belief of the plaintiff that he was not secure in hie rights without the written oontraot, it was therefore reasonable to presume that the partiee had no intention to hind themaelTes otherwise than by a written oontraot. dad the Woodvlllo oase simply follows the broad doctrine of the Werltln oaae, without attending to the fitter and more important foatura of that oasa.

But the doetrlne of the Werlein oasa has been modified, as wo hare said, in the Xaplan oasa; and proporly so, we think.

Bor it is perfectly olear that the agreement to ezeoute a sew instrument is often purely superfluous in so far as the oontraot itaelf is oonoarned; slnoe -"the oontraot must not be confounded with the Instrument in writing by which it is witnessed." C. C. 1762; as whsre the parties hare signed one original instrument and agree therein that a duplioate will thereafter be signed; or where the parties when about to sign thsiT agreement perceive that it contains erasures and interlineations or has been ###‡ soiled, and add therein a oíanse that s cleai^ oopy shall he made, whioh they agree to sign and substitute for the first.

In both these oases it is manifest that no further mental aet is required of the parties, but only the pnrely uhyaloal act of transcribing and signing. But since a contraot is the result of a mental act, "a mere operation of the mind"(C. C. 1797), it follows necessarily that the oontraot is the result of the first aot of the parties, whilst the second operation produces only "the instrument in writing by whloh it is witnessed."

It is also quite true that if it he the intention of the parties that they should not be bound except by the subsequent written agreement (as the court founa the fact to be in the Werlein case) then of course they are not bound exoept when that act has been signed.

hut the reason of this is not because the law so holds, but beoause the parties hare so agreed; and this is oelariy pointed out ii by Pothier in his work on Obligations. Section Ü.

It is also true that it was the positire Roman Law, that where the parties had bargained rerbally but agreed to reduoe their oontraot to writing, the parties were not bound until the writing was completed but this applied only to sales. and was purely statutory, being in. •ed an inoration introduced for the first time by Justinian ~K-himself, in his Constitution of June 1st 528, (Codex 4.21. 17) and incorporated by Tribonian in the Institutes ({ J. 4. 23 (24) pr. ))

But as erery lawyer knows, the Roman Law consists of two wholly distinct dirisions or classes of Xpw#j l. The ffew Law, found in the Codex, being the positire enactments or constitutions of the MOHiféM- Emperoxa and 2. The Old Law, found in the Pandects or Digest, founded on the Jus gentium, or natural Law, as expounded by those Ancient Sages, the Juriaoonsults, who hare been the wonder of all learned men, and of whom Leibnitz has said, that their reasoning was as exact as the demonstrations of Mathematicians.

This latter law, founded on principles that are eternal, always has been and always will be Law throughout the whole world; and is this =• still the Law of #£# State. Reynolds vs Swain, 13 La 198.

But the former, purely arbitrary in oharaoter, is no longer law in this State, haring been abrogated by the statute of 1828 (Rer. Statutes, Section 2166). Reynolds vs Swain, 13 La 198.

Again, the Article of oar CItII Code (2463) relative to the giving of earnest in promises of sale, is taken verbatum from the very paragraph of the Institutes containing the aforesaid lav of Justinian. But the compilers of our code, who were perfectly familiar with the Homan law, adopted that part of the paragraph relating to earnest (also an innovation on the Old haw), yet rejected the rest; this clearly intending to exclude- that portion from our law. On the contrary, they wrote into our code Just above the article about earnest money, the very opposite of Juatinlana' law, to wit, that the promise of sale would be binding.(C. C. 2462).

therefore We are^satisfied that unless it be found as a matter of fact. that the parties intended not to be bound until the subse quent aot be signed their first agreement binds them, if it appear to leave nothing else to be concluded by them except the physical aot of drawing up the agreement as made and the signing of the same. The eases in which the doctrine of the Werlein oase was first laid down t.e. ( 3 U. 349- I H. 3. 422) were decided under the Spanish^Roman Lawji, then in forwe but should not have been followed after the aot of 1B2« (Se P. 6.6.6)

Wow in the case before us it is quite clear that the parties did not Intend that they should be bound only if and when the formal aot of lease was signed; but An the contrary they said in language too plain to be mistaken, that their intention was to be bound then and there. And sinoe, as we have said, the law does not say otherwise, and does not forbid it, it is clear that their will is the law between them ( C. C. II, 1764; Kaplan vs Whitworth, 116 La 337.)

II.

In what preoedes we have ^assumed that the parties had agreed on all the provisions whioh the lease was to oontain, and had only to perform the physical aot of reducing the same to writing and signing it.

We assumed this because, as we have said, the offer reoited that, "lease on your (Peliman1 a) form and rent notes will be drawn up and immediately signed." See 9 Cyo 682

Sow the «trítonos ahown that Pellman had a regular printed form of loas* and ront notas oontalalng blanks to be filled In with dates, nanos, amount of rent, and tosoriptlon of tha premisetu

Copies of suoh lease and rent notes are In the reoerd, and a aero Inspection of then shows that, with the offer and aeeeptanoe before hia, any person with enough education to read and write oould hare filled them out in a few Minutes so as to represent exaetly what the parties had agreed apon, Kenoe there remained to be done only the physioal aot of filling out the fora (whioh might hi done even by a third person) and the physioal aot of signing, -j

III

The defendant oídlas that the oontents of the offer he made not wero^read by hia, and were misrepresented; but this Is abundantly disproved; exoept that it Is not pretended that he read the form of lease and rant notes which he agreed to sign.

But as the offer whioh he did read, refers In plain terms te that fora, it was his plaoe to examine It before agreeing to sign It. lie failure to do so oannot now be urged. See Bagnarls vs Odio T4T1 and authorities there oited-alao 120 La 901, 921; 121 La 514, 515, 516 and Corpus Juris p. STO- Vote £6.

IT.

It Is further urged that (as it now appears) the lease whioh was presented for his signature, had a rider attaohed thereto oontalalng other oonditlona not ggreed to.

Of course defendant was not required by his offer to sign any lease but that whioh he had agreed to, and had he objected on those grounds, and plaintiff had still Insisted, that would have been another matter; indeed he- might then have dons# just what plaintiff Is doing now, vis, insisted that his rights were fixed by the offer and Its acceptance; and have had those rights reoegmlted bjr the Court

But defendant did not objeot to the lease presented to him en those grounds; he simply deellned to sign any lease whatever; in ptint of faot he doss not appear to have known of suoh a rider uatll

T.

TRO plaintiff allegas In its petition, paragraph 2, that defendant’s offer was "duly accepted by petitioner, through Its duly authorized president Leo fellnan." Defendant In hla answer to that paragraph "admits signing a document z x z hut denied that said dooument was of the purport or had the effect as stated In said petition."

Of course the allegation that plaintiff's president was #f# duly authorized, was a material and neoessary affegation of faot to support a eause of action; and as the abowe answer denies no allegation of faot In said paragraph contained, but merely dehies its proposition of law, it follows that the matters of faot contained therein must be ttM#j|"deened to be admitted." Act 200 of 1914, Seo I.

It was therefore unnecessary to prove the authorization of the president; and henoe we are not called upon to ezamine the correctness of a ruling of the lower court of whioh the transcript oontalns only the following bare reoital;

"By Ur. Suthon (to Ur. reliman) Q. Were you authorized by the Be Soto Building Co. to sign this acceptance!
By Ur. Banziger; Objected to.
By the Court; Objection sustained."

Of course a ruling in this shape cannot be reviewed ezcept for the purpose of calling up the stenographic notes (If any) showing the grounds of objection, since an objection without grounds is of course without merit. (Act 61 of 1908-Standard Distilling Co vs Aronson, 9 Orleans App. 323). But as the evidence was unnecessary no such action is needed here. (Lewis vs R. R. Co, 7267; Rhea vs Motor Co, 7144; Miller vs Lafontaine, 8 Orleans App. 162).

TI.

It is contended that the offer having been addressed to Leo Feliman, and not to Leo Feliman, Agent, Its acceptance by the plaintiff oreated no obligation between it and defendant, and we are referred to a number of authorities supporting the well known diotrlne that an agent contracting In his own name without disclosing his prinoipaf, renders himself personally liable to the other party.

That dootrine means nothing more than this; that under suoh circumstances the other party, on disoorerlng the fact of agency, may hold either the agent or his principal at his option. (Johnson vs Bisso Tow Boat Co. 7279 Ct App. 9 Cyc 387 Note 40.

But It has no application hers except to confirm the complement to the proposition, viz; that if It create suoh an obligation between the other party and the undisclosed principal as to entitle the former to hold the latter, It must neoessarily he suoh an obligation as to entitle the principal to oome forward and hold the other party; slnoe a contract binds both parties or neither.

And hence we find the rule this stated in Corpus Juris (Terbo a Agency) riz; "It Is well established general rule that where an agent on behalf of his principal enters into a simple contract, as though made for himself, and the existence of the principal la not disclosed, the oontraot Inures to the benefit of the prlnolpal, who may appear and hold the other party to the contraot made by the agent." 2 Corpus Juris 878»

This quotation is supported by oltationa from almost every state In the Union, and there are no oltationa to the contrary. There is no citation from this Stfcte, and we know of no authority directly In point, but the correctness of the principle Is so obvious that there can be no doubt of Its acceptance here when oooaalon arises, as It does now.

The trial judge found the oaae to be with plaintiff, and his finding appears to us correot.

Judgment Affirmed.

New Orleans La, November 24th, 1919.


text:
    Charlas F. Claiborne, Judg».
    ANTHONY RABITO VS. V. MACALUSO
    No. 7628.
   I f*«l constrained to disssnt from the decision in this case.

The lease sued on vas for three years. It contained the following clause:

"It is understood and agreed that failure of lessee to notify lessor or his agents (in writing) within 30 days of expiration of this lease shall be construed as a renewal of same under such terms and conditions as now enj oyed".

J£y opinion is that this clause means that in the absence of written notice on the part of the lessee to the lessor, the lease would be renewed for another three years from its expiration upon the same terms. Similar clauses are common in many leases; and they mean what they say or they mean nothing. The defendant understood that the clause had that meaning. In his petition in this case the plaintiff makes the following allegation:

"4o That it is stipulated in said lease that should the lessee fail to notify the lessor or his agent in writing, within thirty days of the expiration of the lease, said failure should be construed as a renewal of said lease on the same terms and conditions".

Defendant's answer is as follows:

"Fourth. Defendant admits the facts contained in the Fourth allegation of plaintiff's petition".

Hor did counsel for the defendant deny that such was the meaning of the clause.

The whole defense in this case was pitched- upon the compliance by defendant with the requirements of notice specified in the lease. Defendant, in his answer, admitted every allegation of the petition, except that of indebtedness and want of notice. Upon the last subject he says:

"Purther answering defendant avers that he verbally notified plaintiff of his intention not to renew the lease at its expiration, months before it expired, and then oonplied with the terms of written lease, by giving plaintiff written notice, within the time, and in the mode and manner provided in the lease of his intention not to renew same".

If I am correct in saying that the clause under discussion operated as a renewal of the lease in the absence of a written notice, then the burden of proof was upon defendant to establish the fact of notice. This he has failed to establish to my satisfaction. He says he left a letter to that effect upon a desk at defendant's store, in the presence of a young boy, and in the absence of the plaintiff. He puts two witnesses upon the stand, his employees, to corroborate his testimony. They say they did not enter the store but that defendant left the letter with a man in the store. Plaintiff denied that he ever received such a letter. As that fact was brought out only on the trial of the case, plaintiff asked to be allowed to produce his son who is employed in the store. The Court refused him that,opportunity. Plaintiff's counsel testifies that defendant had told him that he had^sent «^/notice. Defendant has not overcome this denial of plaintiff nor contradicted the testimony of his attorney. Long before this suit was filed, plaintiff asked defendant when and how he had notified plaintiff of his intention not to renew the lease. Defendant refused any information. Upon a matter involving a responsioility of $1440, depending upon the giving of a notice, defendant would have taken greater cafe to protect himself than he says he has exercised in this matter, and would have the evidence of notice certain, as it was his duty to do.

Defendant's alleged notice is type-written,' there is another type-written letter signed by defendant. He says he wrote both. The body of both letters is in perfect English;yet defendant's testimony is in broken English, and his signature to the two letters is in the uncertain handwriting of one who knows only how to sign.

But if I am not correct upon the point of notice, I think plaintiff is entitled to some damages for injury to the property.

Por these reasons I dissent.

Court of Appeal---Parish of Orleans.

By Pinkelspiel- J.

This ia 2 suit on a renewal of lease of premises No. 530 Ursulinas, between Chartres and DeoaSur Streets, ori.-ir.ally made to Antonio Lassrva, for thirty-six months, at í;40. per month, which began on the 1st. March, 1915 end ended on the last day of February, 1918,

The renewal clause reads:- "It is understood and ftgse* agreed, th-t failure of lessee to notify lessor or his Agents in writing, within thirty days of the expiration of this lease, shall be construed as renewal of same under such terms and conditions as now enjoyed."

In the supplemental petition there was a claim for #■142. for repairs, which was said to have been absolutely necessary.in order to make the place habitable.

The answer sets up, that there were verbal and written notices, both given within the 30 days before the expiration of the lease ana therefore plaintiff haa no claim, and, further, that the repairs made to this house were absolutelj|i necessary and for v/hich he i s not bound end he left the premises in equally as good order as he found them.

Reading the testimony, and without „oir.ü into details, which wn f ir.k absolutely unnecessary as it would produce no benefit, we are satisfied, that written notice was given as reo.uired by the terms of the lease, and that prior to this notios plaintiff h-d notice,verbal notice, of d«Sx«Hasxt* defendants intention to remove from, the premises at the expiration of the lease.

That in company with several witnesses defendant went to plaintiff’» piece of business, and there fuilir.0 tc see plaintiff, left a written notice with an attendant, a boy, at the C3tablJehnent of plaintiff on plaintiff's desk, the attendant Sc.yinL that plaintiff was not in the place.

Whether t at be a fact or not is perfectly immaterial; that notice as required was given-1b shown by to», defendant1» testimony and that of his witnesses who accompanied him at tne time the notice was left.

Subsequently, several months, plaintiff claimed that he haa received neither notices in writing wnioh had been mailed nor the one that was left at his place of business, in fact* no notices at all.

The questions of fact were determined by the Judge of the lower Oourt adversely to plaintiffs claim.

The law, at all applicable to this case will be found in 30 Ann. p. 255-257, Murrell -vs- Lyon, the Syllabus, reading:

"The intention of the parties- to a contract of lease arising out of uncertainty of the contract will be consrued in favor of the lessee. It is the business of the lessor to have the agreement expressed in clear and certain terms." flso, see 24 Cyc. Mote 3-p. 10C8-1009.

In many cases decided by the Supreme Oourt of this State, one being that of Roberts -vs - Cooper et.al. 131 La. p.811.

This Qourt in numerous casea, citing only a few of them, August Frank -vs- August Hapen- 13th. Court of Appeal,473;-

"’■"hon questions of foot only are involved, the judgment of the lower Oourt will be affirmed unless it is manifestly erroneous."

And in 10th. Court of Appeal, at pa_es SCO and SOI, t.i-.e s u:.e iooterine h-js announced.

The Judo-e of the lower Oourt having seen and heard the witnesses waB in a better position to determine the v alue of their testimony given before him. >’is Judgement .vas that plaintiff had failed to make o\it his ca3e and we agreed in his opinion.

♦Judgment Affirmed?