author: BY: WILLIAM A. BELL, JUDGE:

text:
    THE LIQUID CARBONIC CO. versus WM. M. LEVY.
    NO. 8322
    COURT OF APPEAL, PARISH OF ORLEANS.
    NILLIAM A. BELL, JtíD&E:
    June 30th, 1922.

   BY: WILLIAM A. BELL, JUDGE:

This is a suit filed February 7, 1921, by She Liquid Carbonic Company against Wiliam M. Levy on two notes, dated April 5, 1920, aggregating $262.50, bearing 6 per cent interest from date until paid, which notes wore executed by defendant in plaintiff's favor as part of the’purchase prioe of a second-hand soda fountain which was sold by plaintiff to defendant. Che oontract covering the sale is dated March 16, 1920, and shows that the soda fountain and equipment in question was sold f.o.b. Pascagoula, Mississippi, where the property was located at the time of the sale. The description of the soda fountain and its various mechanical part3, together with a certain second hand marble counter, is set forth in the written oontract of purchase with the sole notation as to defeots, that hinges on top of cold storage are broken. It is stipulated that the vendor, plaintiff herein, shall send erector to unorate and erect the fountain, but that said erector will do no plumbing or electrical wiring. The order also bears the words "Rush soon as possible/"

The defendant's answer admits his signature to the notes, but denies any liability thereon, and alleges that the consideration therefor has failed. Assuming the position of plaintiff in reconvention, the defendant prays for judgment against The Liquid Carbonic Company in the sum of $1,281.15, made up as follows:

Amount paid on account of purchase prioe of soda fountain-§-237.50 Freight from Pascagoula to New Orleans —— 38.50 Express charges on piece of marble shipped by plaintiff to replace a broken part- 2.65 Express charges on a motor shipped by plaintiff to defendant to replace a defective motor —--—--- 2.50 Damages for breach of contract-1,000.00 Total---r-$1,281.15

There was judgment in favor of plaintiff for 'the amount claimed on the no.tes($262.50) with interest, not from date of notes but from date of judgment, and In favor of defen© dant as plaintiff in reoonvention, for $5.15, this amount being the aggregate of the two above items for express charges on a piece of marble and on a motor. The evidence shows that these two small items of suspense or disbursement were not covered by the contract but were advanced by defendant at the request and for account of plaintiff. The record further shows as a fact, admitted in defendant's brief, that the fountain though sold on March 16, 1920, was finally installed by plaintiff to defendant's satisfaction only two or three weeks before the trial of this, cause in the lower court, which occurred May 19, 1921. Por this evident reason, the court recognizing plaintiff's claim for the principal due on the notes, disallowed the interest stipulated on the face of the notes and gave judgment as to the interest only from date of rendition of judgment.

Defendant admitting his final acceptance of the fountain has acquiesced in the judgment upon the notes and the interest as allowed, but prays this court for reversal of that part of the judgment which denies his reconventional demand for damages in the sum of One Thousand Dollars.

The sole question, therefore, before this court on appeal, is derenaant's claim for the above damages alleged to be due for violation of plaintiff's written contract to install the soda fountain.

There is abundance of proof in the record, made oertain by plaintiff's own witnesses, that the soda-fountain was not properly installed and could not be used under meohanical operation as contemplated by the oontract, until some time in April, 1921, two months after the institution of these proceedings, and more than a year after the date of the contract sued upon.

The extensive correspondence found in the record as well as the testimony adduced at the trial, convinces us, without necessity of discussing, the evidence, that plaintiff failed to deliver or install within any reasonable time or with mechanical efficiency the property contracted, for.

There were no written reasons ror judgment given by the Judge a quo; but that he was entirely in accord with our conclusions is eloquently manifested by the fact heretofore noted, to wit; the allowance of interest on the notes only from date of judgment.

plaintiff has not answered the appeal herein tafeen, nor prayed for amendment of the judgment in this respect.

Counsel for plaintiff, defendant in reconvention, urges in argument and brief, three reasons for denial of damages under the alleged breach of contract: First, that defendant has not shown plaintiff was responsible for the damage complained of to the equipment; secondly, that defendant could and should liave prevented the accrual of damages; thirdly, that defendant has not shoivn any basis by which damages, if suffered, could be definitely fixed or ascertained, the claim for same being purely speculative.

In arguing the first of the above defenses it was urged that the shipment of the fountain having been f.o.b. Pascagoula, Mississippi, the burden was upon plaintiff in reoon-vention to show that the fountain was not in good order at time of shipment. Such negative proof cannot be placed upon the vendee particularly for the reason that the contract specially provides that the fountain and equipments should be erected at Hew Orleans by the vendor. In none of the correspondence or testimony before us has there been any attempt to claim that the defects shown to have existed arose in transitu, while, on the other hand, and as we have heretofore noted, the record abounds with proof as to th' defectiveness of the apparatus, due to no fault of plaintiff in reoonvention.

Plaintiff's other defenses to the reconventional demand may be considered together, the questions of defendant's actual losses or damages and his effort or not to prevent or reduce the same being closely allied to each other, andjbeing entirely determinable from the evidence disclosed by the record,

We find that the defendant has 'been engaged in the retail drug and soda-water business in a well populated part of the City of Mew Orleans for over thirty years. His correspondence with the plaintiff from May 7th to August 22nd, 1920, shows that he repeatedly notified plaintiff that because of the defective soda fountain sold to him, he was losing money at the rate of about §10.00 per day; and that during all of this period he was induced by frequent promises and representations from plaintiff to patiently await the adjustment of his troubles, and not until August of 1920 dia anyone authorized to aot for plaintiff ever appear at his store, or in any manner attempt to remedy the complaints made by him; that after various exchanges of three motors, two oarbonaters, one marble counter and certain parts, and after interviews ana visits from plaintiff's representatives, in April 1921, subsequent to the filing of plaintiff's petition, matters v/ere finally adjusted to defendant's satisfaction, and in accordance with the,contract originally entered into.

She defendant has testified under oath that his soda-water business brought from §2,200 to §2,700 per year, at least one half of which amounts viere profits, and that the soda-water sales for 1919 were §2,663, and his profits in that year on soda sales were §1,400. He also stated that the sale of soda-water for the season of 1920-’21 would have been better than that of 1920 because of increased business all over the country due to prohibition. Ihis latter statement is of course speculative, but his testimony as to the previous year's business has not been contradicted in any manner. There is other testimony to the effeot that the best months for the sale of soda-water are from May through August, the particular months of 1920 during which he was deprived of the use of his fountain.

It is further shown that he actually made effort, after repeated disappointments due to plaintiff's delays, to have the only local dealers he knew^f^in Hew Orleans fix the fountain, but that they also failed^ A careful examination of the whole record before us does not lead us to believe that plaintiff in reoonvention was indifferent or negligent in his efforts to overcome the difficulties confronting him or to minimize his losses.

The books of hjs business showing his profits in said soda-water during the previous year were not offered by plaintiff's counsel on the one and only day during which this case was tried, and counsel for defendant promptly consented to their surrender. These books do not appear to have been filed, the judgment in this case having been rendered six days subsequent to the trial. While the books would have been the best evidence, the uneontradieted testimony of defendant must be taken as true. It is difficult to estimate the exact extent of defendant's loss and profits due to plaintiff's fault in failing to erect in proper working order the fountain sold, but we are convinced that he oould not have lost less than §5.00 per day during the four best months of the year 1920, that is during the very period of time in which the plaintiff by protracted correspondence, led him into the belief that the complaints would be promptly reetifj ed.

Vie think therefore, that he should recover at least to the extent of the sum of §615,00. Art. 1934 R.C.C. provides, except under certain conditions not applicable to the ease before us that:

"Where the object of the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the losses he has sustained, and the profits of which he has been deprived - - "

Under the article just cited, the loss of profits which defendant has suffered in this case, are undoubtedly recoverable if possible of proof, and cannot be denied because of the contention that they axe purely speculative. Had defendant been about to engage in the soda-water business for the first time, the damage suffered by him as a consequence of plaintiff's breach of contract, might have beer, in their nature somewhat indefinite if not speculative, and difficult of proof. Such are not the facts in the case before us, but even under such conditions we are of the opinion that the damages for which we have found plaintiff to be liable are such as may reasonably have been supposed to have entered into the contemplation of the parties at the time of the contract, particularly when it is noted that the old fountain was removed, and its value taken in part payment of the price of the fountain involved in this suit.

In the case of lindley v. Breedlove, 4 Martin (H-.S.) 105, the court recognized defendant's rights when sued for the price of certain defective steam-boat machinery, to reconvene for the profits lost. In that case the court said, in part as follows:

"There is nothing in this warranty that limits the responsibility of the sellers to the value of the machinery which should prove defective, and the lav/ extends the obligation much further.
Damages are the loss which a person has sustained, or the gain which he has missed; such is the definition of the Roman jurists, "quantum mea interfuit, id est quantum mihi abest, quantumque lu-crar! potui.'- Dig. 46, tit. 8,1 13. We think that where the owner of a boat contracts for an engine, and loses the use of her for several months in. consequence of defects in the machinery, that the money actually expended, and the loss of gain directly resulting from these defects, come within the definition just given." pothier, Traite des Ob., 162,163,165; Toullier Droit Civil Irancais , Div. 3,tit.3, chap,3,líos. 286,287,Domat,liv.3.tit.5,s.2,Hos.4 and 11, Civil Code 49, 50, 51 p. 268.

See also Forrest v. Caldwell, 5 La., Ann 22-0

The fact, that because of circumstances arising in the instant case, there can be only estimated damages rather than definite damages, actually determined unto the exact amount claimed, does not bar defendant's right of recovery. It cannot be said that the claim in reconvention is one based upon prospective or future profits, such as may be claimed in a suit for future rents under stipulations of renewals in a oontract of lease not fulfilled, but on the contrary, are shown to have been actual profits of which the defendant has been actually deprived, beoause of plaintiff's failure to observe the contract existing between the parties.

For these reasons, it i3 ordered, adjudged and decreed that the judgment of the trial court on the main action be, and the same hereby is affirmed.

It is further ordered, adjudged and decreed that the judgment in favor of defendant as plaintiff in reconvention for the sum of $5.15, and against plaintiff .as defendant in reconvention, be amended, and that there be now judgment increasing the said am of $620.15, with legal interest thereon from _ , , ,921, until paid; plaintiff and appellee herein to pay all costs of appeal.

JUDGMEMT AFFIRMED AMD AMBHBED.

June 30th, 1922


source: Caselaw Access Project

author: bs: :wg&m i'.m&.mtts*'-.

license: Public Domain

text:
    MRS. JAMES A. PITZGERALD, ET AL., versus BENEVOLENT KNIGHTS OF AMERICA OF LOUISIANA
    NO. 8324
    COURT OF APPEAL, PARISH OF ORLEANS
    VaillAIi A. BEIL, JUDGE.
    November 13, 1922.

   bs: :wg&m i'.m&.mtts*'-.

Uta, Swea A, Fitzgerald, 'beneficiary under a qertaih'benefit policy in the Grand lodge Benevolent Knights ef .America of* Bauisiana,. made• defendant .herein,, brings suit against said, defendant to reoover the sum of §850,00, an amount which she claims has aoorued. to her as beneficiary on the life of her-son, Henry M. Fitzgerald., who died in Hew Orleans on the 18th day of October, 1918, and who held a beneficiary certificate, Ho. 16049 la.” in the defendant association, for the maximum sum of $600.00, said polioy being dated February 7th, 1917. It provides that in the event of death after IS and before 34 full months of - oonseoutive membership, there shall be due half of the face value of the certificate, which in this case, is $360.0,0, the amount sued for.

Under the facts of this case, the pertinent olause of the policy or certificate reads as follows:

"The monthly rate payable by a member holding this Certificate, shall be the rate -at the nearest year of age of entry, and is due' and payable in advance on the first day of each month to the Secretary of the Bodge in which said member has his membership, or direct to the office of the Grand Bodge. Unless such monthly rate is paid on or before the first day of the month following that on which it is due and- payable, the said member shall stand suspended from any ■ and all benefits hereunder. The said member may be reinstated within Bixty days by payment of amount due and furnishing certificate of good health."

It is alleged in plaintiff's petition that at che time of the death of ber son, Henry M. Fitzgerald (the insured) , he was a member in good standing in the defendant association, and had been so for 30 full consecutive months from and after the issuance of said certificate; that during the course of Fitzgerald's membership in the association, on many occasions he had made payment of various monthly rates or premiums due under the cercifioate of insurance sued .upon long after the due date of said payment had passed, the due dates and the payment dates being set forth as follows:

June, 1917 Assessment $1.16 Paid on July 16th, 1917 July, 1917 " 1.16 " ” Aug. 30th; 1917 August, 1917 Assessmént ti.15 Sept., 1917 " 1.15 Oot., 1917 " 1.15 Kóv., 1917 " 1.15 Deo., 1917 " 1.15 Jan., 1918 " 1.15 •Feb., 1918 " 1.15 March, 1918 " 1.15 April, 1918 " 1.15 May, 1918 " 1.15 June, 1918 n 1.15 July, 1918 " 1.15 EaicL on September " " Kovember " " Kovember " " December " " January " " March " " March " " April " "• May " " June " " August " " August 14th,1917 17th,1917 30th,1917 14th,1917 lgth.1918’ gth,1918 8th,1918 11th, 1918 12th,1918 14th,1918 10th,1918 10th,1918

It is further alleged that none of said payments as above detailed was accompanied by a certificate of good health, nor was demand made by the defendant corporation upon the insured for a certificate of good health at the time of eny of said payments, and that in fact, no such certificate was furnished; that on October 15th, 1918, the insured caused to be paid to the subordinate Secretary of the Dodge the sum of,¿3.45, an amount sufficient to cover the monthly rates or premiums for August, September, and October of the year Í918; that at the time of said payment the insured was ill with cold and fever, and that the amount tendered.was duly accepted by the Secretary of the Dodge and credit given the insured on his Member's Receipt Booh, but that same was returned to him the next day by registered mail with the written statement that the Secretary of the Grand lodge refused to accept the money. Annexed to and made part of the petition are four exhibits, among them’ the registered letter received by the insured from the Secretary of the lodge of which he was a member. Ihe letter reads as follows:

Hew Orleans, la..October 16/18.
Mr. Henry Fitzgerald:
Your dues and notice of illness received, and beg to state that I have notified the Grand lodge of your illness, but beg to inform you that 'I cannot give a week1s relief, as your relief only states when the secretary of your lodge is notified, and if I violate the rules of the order I am likely to get into trouble.
As you are now two months in arrears, I do not believe that the Grand Secretary will receive these dues and put you in good standing until you report well.
In view of these facts, I am una'ole to say whether you will get any relief, hut will take up the matter with the Grand lodge at once.
trusting you will recover from your present illness'shortly and that everything may he adjusted, I remain,
Yours fraternally,
(Signed) John J. Grasser, Secretary.
The Grand Secretary refuses to take the •money due to your being sick. The enclosed notice- explains itself.
The Grand lodge Secretary refuses to accept any money from you until you report well. After being well, and you desire to be ieinstated, you may fill out the enclosed blank and return same to me, with dues payable including current month.

It is claimed in the petition that the refusal of the Secretary of the' Grand lodge to accept the sums paid was unwarranted and wholly without effect upon the membership of the insured in the association, and that by the association's systematic conduct in accepting payments of monthly dues long after due dates without exacting a certificate of good health ■In conformity with thg paragraph of the certificate of insurance hereinabove quoted, that the association lost the right to suspend the insured from membership or to deny him the benefits accruing to him or his named beneficiary, the insured having been justified by the aforesaid conduct of the association to assume that he would continue in good -standing although his payments had been delayed. Claiming estoppel against the association for these reasons, plaintiff, as beneficiary, sues for the jBaount above stated, alleging amicable demand upon the association without effeot.

There is no contention as to the acceptance by the Association of the delayed premiums or monthly payments -as above stated.

The defendant answers by admitting the issuance of the certificate in question to the party named and for the benefit of the plaintiff herein, avers that if any payments vrere made on the days alleged in the plaintiff's petition that same were made when the insured was in good health, further answering, defendant alleges that the insured ceased'to he a member in gooa standing on September 1st, 1918, because of the fact that his dues for the month of August had not been paid. It further alleges that on October 15th,' the insured made no payment of dues to the Seoretary of the lodge, but that the sum of §3.45 was left at the residence-of the Secretary with the wife of the Secretary by the mother of the insured, the beneficiary herein, and that as soon as. the Seoretary of the lodge ascertained that Eitzgerald was ill, which was the next day thereafter, or the 16th of October, 1918, the amount was returned to him by thé Secretary of the lodge in which the insured held membership, end in fact never reached the Grand lodge of the Benevolent Enights of America of louisiana, the party made defendant herein.

It is further alleged that when the money v/as left at the residence of the Secretary of the lodge, the insured's mother reported him as having been sicfc for several days, and that he never recovered from the illness from which he v/as suffering October 16th, but that he died from the effects thereof on Oo-tober 18th, 1918.

At the trial of this cause, the defendant's counsel objected to the introduction of any evidence in support of plaintiff's claim on the ground that, under the allegations of the petition, no cause of action was disclosed, the said allegations negativing any liability to the plaintiff under the terms of the policy made part of the petition. The Trial Court toot time' to consider the exception and objections so made, and ultimately overruled the same, as we thirds: rightly.

The question involved in this oase is one of law, the facts adduced being practically out of dispute or discussion, unless it be as to the fact of the insured's health during the tender and. acceptance of delayed payments pr premiums. SCiie record does not show whether the Insured was in good health at the time of the acceptance hy the' association of. the deferred payments, and we are of the opinion.that such an issue is immaterial because of the undisputed waiver by the association/of the conditions of the.clause in the certificate as above quoted,

We-find as a fact that the many defaults of the insured in prompt -payment of premiums as they respectively fell due was in no instance but the last, to wit the payment, made on October 15th, 1918, in any way questioned hy the association, nor did it attempt to suspend the insured member fro* any of the benefits set forth under the certificate, nor did it Insist.upon or cause to be furnished to it a oertifloate of good health, from the insured as a condition to reinstatement heeau.se of the defaults made by him.

Ihe testimony of the Grand lodge Secretary ■shows the association to have been rather indifferent to the enforcement of the letter of the contract, and that it-was-the association's frequent custom to.receive delayed payments without a subsequent forfeiture, and without the requirement: of rein-, statement by health certificate. On cross-examination this officer was examined in part as follows:

how, in your capacity as Grand Secretary, do you follow up these delinquent notices to discover when the application for reinstatement has been formally made, accompanied by health certificate in each case?
A. She health certificate is not required of a member who owes less than three months in arrears.
Q. Is that the rule of your Order?
A. It is.
Q. 'Jill you show me that? Have you a copy of your rules?
A. So.
Have yon. any in existence?
Ho, it is a matter of business administration in the office. It is an act of grace or a practice that inures to the benefit of the member.
Hot a part of the insurance oontraot?
Ho»
The oontraot of insurance reals to the contrary?
Possibly it does.
Don't you know it does?
Yes.

The record facts in this case as well as the testimony of the officers of the defendant -association, clearly establish a course of conduct on the part of the defendant whereby it gave the insured the right to believe that delayed payments would not operate as a forfeiture of his Insurance. The course of conduct as between the defendant and the insured both in respect to the place as well as the time of payment was undoubtedly variable, and the testimony above quoted further shows that the association had a custony not only observed in the instant ease, but generally, to indulge its members. The fact that the-deceased's mother notified the- association at the moment of payment through such parties as were authorized to accept the payment, shows the good faith of the insured, and no intention of his nor of his mother, who made the payment, to oonoeal the fact of his illness, which ultimately resulted-in his death. The case is .free from fraud on both sides, and the authorities in this State as well as under the jurisprudence of the Supreme Court of the United States, establish an almost unbroken .rule of estoppel against the assurer in oases .of this nature.

In the case of Knickerbocker life Insurance Company v. Horton, 34 D. Ed. 689, the Supreme Court of the United. States pronounoed against the- forfeiture of a policy where conduct on the part of the insureror its agent had established a waiver of conditions of forfeiture stipulated in the-policy. In this oase the Court said in part:

"Forfeitures are not favored in the law. They are often a means of great oppression and injustice, and, where adequate compensation can he made, the law in many oases, and equity in all oases, discharges the forfeiture upon such compensation being made.
It is true we have Reid.***** that in life, insurance, time of payment is material, and cannot he extended hy the'oourts against the assent of the company. But where such assent is given, the Court should he liberal in oonstruing the transaction in favor of avoiding forfeiture.
The case of lease is not. without analogy, to the present case. It is familiar law that when a lease has been forfeited .any act of the landlord indicating a recognition of its continuance such as dis-training for rent of accepting rent which accrued after the forfeiture, is deemed a wafver of the condition."

Again, in the oase of Hew York Bife Insurance Company v. Eggleston, 24 1. Ed. 841, the Supreme Court of the United States, ¡reaffirming its oonolnsions in the above cited case said:

"Wo have recently, in the oase of Knickerbocker Life Insurance Co. v. Morton, shown that forfeitures are not favored in the law, and that courts are always prompt to seise hold of any circumstances that indicate an election to waive a forfeiture or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of notion, on the part of an insurance company whioh leads a party insured honestly to believe that by conformity thereto, a forfeiture of his policy will not be incurred, followed by due oonformity on his part, will and ought to estop the company from insisting upon the forfeiture though it might be claimed under the express letter of the contract."- ,See also Hartford Life v. Unwell, 144 U.S. 439 (36 L. Ed. 496).

The dootrine of estoppel enunoiated in the shove authorities of the Supreme Court oannot be strengthened by further oomnent. We find it reiterated in many authorities of the Supreme Court of Bouisiana, particularly in the oase of Lawrence v. Penn Mutual Insurance Company, 113 La. 87; Gunther v. N.O. Cotton Exchange, Mutual Aid Association, 40 Ann. 778; N.L. Gutter v. Mutual Reserve Fund, 52 Ann. 1733.

In the ease of Kennedy v. Metropolitan Life Insurance Company, 116 La. p. 66, the Supreme Court of this State decided in recognizing forfeiture of a policy of life insurance, that as the contraer was not to take effect unless the first premium should have heen paid, the payment of that premium was in a measure found to he optional with the insured, and that it could not have heen said to he past due on the day upon wnioh the policy hore date. The doctrine of estoppel was declared inapplicable, although the Company, through the. agent, had accepted a second premium after it had become duo. The receipt in this particular case given for the first premium contained a stipulation that the acceptance by the Company at any time of a premium past due was to be taken as an act of grace and not a precedent or waiver of any of tne policy's conditions. This authority relied on by counsel for defendant in the case now before us, does not in any way qualify the consistent jurisprudence of our State, for th¡ reason that we do not consider the facts of the Kennedy cas. to be in any manner applicable to those now under consideration.

As was said by the Court itself in the Kennedy case: "Cases of this kind are determined mainly upon their facts." There was no stipulation in the settlements with nade by the insured that the defendant association either verbally or in writing, which would have carried with it a conclusion that the indulgence given the plaintiff was to be considered an act of grace by the Company and not a precedent or a waiver of any of the conditions or terms of insurance stipulated in the policy. Under the faots of this case, we are disposed to the view that the illness of the insured at the time of the last payment accepted by the association, could not have operated his suspension or prevented the effect of waiver already granted by the Company under its previous conduct, for under defendant's course of action, it distinctly approved and gave the plaintiff reason to believe that payments made after the due dates thereof would not cause a forfeiture of his insurance.

We think the ruling of the Trial Court is in conformity with the law, evidence and equity of this case, and that same should be affirmed. It is therefore ordered, adjudged and decreed that the judgment herein appealed from be, and the same is hereby affirmed, at defendant's cost in both courts.

JODSMEHT lOTIRMED.

November 13th, 1922,


author: Dinkelspiel; J.

text:
    NO. 8337
    COURT OF APPEAL PARISH OF ORLEANS.
    ROBERT H. MARR versus BOARD OF PORT COMMISSIONERS PORT OF NEW ORLEANS.

   Dinkelspiel; J.

•Statement of facts:

Plaintiff sues defendant, which is a Stats Agency, crested by Aot 70 of the General Assembly of the State of Louisiana of the ye~r 1336, alleging that ss.id defendants were indebted to him in the full sum of $40.50. That defendant is the tenant or lessee of petitioner under a verbal lease by which said defendant agreed to pay your petitioner a monthly rental of $13.50 for eleven lots cf ground in square 803 in the Third Distriot cf the City of Hew Orleans, bounded by Romsn, Derbigny, Japónica and ifen-uel Streets, meesuring together, three hundred forty one feet on Japónica Street by one hundred and twenty feet in depth; and that said defendant hae paid the rental of the said property up to Hovsiaber let, 1310, but refuses, notwithstanding amicable demand, to psy the rental due for the months of November end December, 1930 and January, 1931, although defendant has ocoupled end used said property since Hovember 1st, 1320 end is still in possession of seme; and alleging further that plaintiff is informed »nd believes that defendant has in its possession, sufficient fund3 to pay petitioner the rent of said property now due and owing and prays for oitation end judgment for the amount oladmed.

Th9 answer asserts that defendant i3 *.n Agency of the State of Louisiana but denies that it is indebted unto plaintiff in the sum of $39.30; denies that defendant is the tenant cr lessee of the property described in plaintiff's petition or that defendant owes any sum of money to plaintiff for rent, but avers the facts to be:

That the relations of plaintiff and defendant was not that of lessor end lessee but that no lease h"d ever been contracted legal?y between the psrties.

The allegations of the other p=rt of the answer of the defendant that it having taken possession of the property in -question under various laws of this State quoted by it in its answer end its legal right so to do, is made part and parcel of the answer in question.

Reasons for judgment:

The matter before ne, as Judge, to whom this case was alloted and on which I bese .r.y opinion was entirely founded on the f-.ot, whether or not the defendant Beard hsd or not rented the property in question, under ■' lease.

?1!intiff contends that having been ps-id certain sums at » oertí'.n time, of itself, without any resolution of the Bcsrd or sithout any written lease, created the re-libicns -is landlord and tenant. X do not think this is good law and a lease between plaintiff and defendant should have been made and must be made in writing and cannot be male orally and the mere fact th’t payments were made by the Board for use of this property during its occupsnoy, does not in my view of the matter constitute a lease.

X did not attempt to decide nor did X deoiie the questions whether or not the defendant had a right to expropriate or appropriate the property in question, considering that I had no authority to inquire into this matter at all

The only question waa whether or not there was a lease under the law, and Articles of the Civil Code 1797 and 1798 are controlling and under these Articles and the fact that dealing with defendant as a corporation, particularly in matters of leases, there was no written lease and hence I revsrse&the judgment of the lower Court and rendered judgment in favor of the defendant.

Respectfully submitted,


author: Charles F. Claiborne, Judge.

text:
    Charles F. Chibóme» Judge.
    SIDNEY F. LIBERMAN VS WM. C. FAUST.
    No. 8328 and No. 8379
    April 24th., 1922.

   SIDNEY P. LIBERMAN Appellant VS mi. C. FAUST Appellant

No. 8328 and No. 8379

Charles F. Claiborne, Judge.

The defendant conducts a business of transferring persons and their baggage from and to railroad stations. While on a train running into New Orleans, the plaintiff handed his checks for three trunks for himself and wife to an agent of the defendant for the purpose of having them carried to his residence. The defendant received his trunks from the railroad and placed them in hi3 place of business. During the night, a fire broke out on the floor over the place of business of the defendant. The water and chemicals from the fire engines fell into defendant's place of business and damaged the trunks and their contents. Hence this suit. The question of liability of the defendant is not raised; the defendant admits it. The only issue is as to the extent of the damage done, and the objects damaged for which the defendant may be held.

The wearing apparel damaged, and set down as a total loss, consists of five dresses, one scarf, one pair of white canvas oxfords, three hats, three trunks damas ed, one underskirt, and one Christian science book, all valued at $346.75.

The plaintiff and his wife swear to that loss and to the value of those articles. Under the law, they have made out a case. C. C. 2761 (2722), 2964 ( 2935), 2971 (2940); 18 A. 664, 156; 20 A. 402; 5 Ct. App. 61; 14 A. 325, 527.

But the plaintiff further alleges, and this is really the only controversy in this case;

"That in addition to the wearing apparel of petitioner and his said wife that were-contained in the said trunks, there were also contained four so-called "dummies" of a publication known as "The Hebrew Standard". That said dummies, which were made up for the particular use of petitioner in his business of soliciting advertisements for said magazine, were made up for him in accordance with his directions and in a very attractive manner, §o? as to enable him to use them as a prospectus in soliciting such advertisements. That said dummies practically constituted your petitioner's stock in trade by means of which he earned his livelihood. That said dummies were made by a printer and engraver in the City of New York; that only a limited number were printed for petitioner's use, and that the four copies that were in petitioner’s trunk were, with the exception of one other copy, the only five copies that he had left for use in the prosecution of his said work. That by reason of the water, acid, and other liquids coming in contact with said documents, the same were so badly disfigured, and mutilated as to make their use for the purpose for which they were intended impossible, and so as to necessitate petitioner's returning to the City of New York to have new dummies made for use in the further prosecution of his said business. That the cost of replacing said dummies will be at least $750, and that the time that it will take to have said dummies replaced will be at least five weeks. That during the time that said dummies are being made up, petitioner will be unable to ply his vocation as he would have been able to do had said dumnies been kept intact in said trunks» Thht your petitioner will lose, during the time that he is waiting to have said dummies made up, at least $100 per week in salary and commissions which he would otherwise have earned had he been permitted to carry on uninterrupted his regular business of soliciting advertisements".
Plaintiff therefore claims, in addition to $246.76, the value of wearing apparel, the further sums of $750 as the value of the dummies and $500 for loss of time.
The defendant's answer is practically a general denial of liability, and the special plea that all the allegations concerning the damage to the
"dummies" discloses no cause of action".

Upon the trial of the case, the defendant, in support'of his exception of no cause of action, objected to the introduction of any testimony in support of the claim for damage to the dummies or for loss of tipie or earnings. The Judge maintained the exception and the objection, and restricted the testimony to the items of wearing apparel described as baggage. A special judgment maintaining the exception of no cause of action was wandered March 21st, and signed July 15th, 1921. From thi^Judgnent, Liberman has appealed.

After trial on the merits, judgment was rendered on May 23d and signed on May 27th, 1921 in favor of plaintiff for $239.00 From this judgment; Faust has appealed.

I. The question of law involving the liability of the defendant for damage done to the'"dummies" must be determined by the Articles of the Civil Code as interpreted by our Supreme Court.

The defendant engaged in the business of carrying passengers and their baggage to thei'r residence, to and from said road stations is a "carriers within the meaning of the Civil Code. Article 2751 (2722); C. N. 1782; 19 Baudry-Lao p 512 S2451; 39 Dallos p 409f 542; 42 A. 696; 19 Ills. 656; 1 Hutchinson on Carriers Sec. 70; Michie on Carriers p 768; 23 C. J.§1830.

The law of Louisiana relative to the liability of carriers is contained in Article 2751 (2722) of the Civil Code. It reads as follows:

Art. 2751 (2722) "Carriers and watermen are sujarject,with respect to the safe keeping and preservation of the things intrusted to them, to the same obligations and duties which are imposed on tavern-keepers in the titles Of Deposit and Sequestration". 1 B. 411; 7 A. 361; 13 A. 454.

Turning to the Article which treats of the obligations of tavern or innkeepers we read:

0. C. 2965 (2936) "An innkeeper is responsible as depositary for the effects brought by travelers, who lodge at his house; the deposit of such effects is considered as a necessary deposit".

As we have said before, the question of liability of the defendant is not an issue in this case; the defendant has admitted its liability. The only question is, for what "effects" he may . be made liable, or, in this case, is he responsible for "dummies". The question must be answered by the interpretation of this Article 2965 by our Supreme Court, and by the commentators of the Code Hapoleon on Article 1952, from which our article has been copied almost in insissimis verbis, and from commentators, contemporaries of the authors of our Civil Code, whose opinions, we must presume, were known to those authors and were adopted by them, together with the Article of the Code Hapoleon.

In the case of Simon vs Miller 7 A. 360, the plaintiff lodged at defendant's inn; they had in their possession gold dust of the value of $5000 which they left in their trunk in their room, both under.lock; it was stolen during their absence from the room. The Court said:

"It may be conceded that the $5000 in gold were the effects of these travelers x x x Sven then, the responsi-oiiity of insurers (innkeepers) is orroneous, compared with the profits of a night's lodging, x x x They are responsible only for what is usually and ordinarily in the trunks of travelers; their clothes, and the money necessary for their journey".

The case of Del Valle vs Steamboat 27 A. 90, is thus stated:

"The plaintiffs seek to render the defendants responsible for the value of a,set of jewels lost by Mrs. Yznaga while on board the Steamer as a passenger, and of which she alleges she was robbed by thieves, who opened and entered her state room in the night time, min regard to baggage the liability of the carrier does not extend beyond the value of reasonable articles of apparel or convenience, and for such sum as might be deemed necessary for his expenses according to the passenger's condition in life and the journey undertaken by him. 7 A. 362: 5 A. 604: 18 A. 664; 20 A. 402; 1 M. 196".

While there are several other cases where innkeepers have been held liable to travelers for their "effects", we know of none where the liability extended beyond wearing apparel and necessary traveling.money, nor do we know of any case in which the authority of the two cases above quoted has been questioned.

In line with the 7 A. 360 and 27 A. 90, we-find 11 Toullier p 354 ^255 Denisart Vo. Aubergiste4 3 Ho. 3; 4 Duvergier $ 329; 15 Dalloz Rep. p 492 Ho. 175, 176.

The question whether a carrier must reimburse a traveler the whole value of any and all effects contained in a traveler's baggage is much controverted, even among civilians, says Baudry-Lacautinerie, Vol. 20, p 2580, and Marcade, Vol. 8, p 237S531.

Guillonard Vol. 2 p 328 *760 gives the following as his opinion:

"The traveler has a right to be indemnified for the value of the money and of the precious articles contained in his baggage, provided the quantity and the price does not exceed what one must expect to find in baggage, keeping in mind the condition of the traveler; but he has no right to an indemnity, if the value or the quantity of the things which he claims are out of all proportion with the habitu- ’ 3--e ^ The counsel for the plaintiff has referred us to 100 U; 3.

24 end to several authorities from other sister States where the common law prevails. Under the common law the origin of the responsibility of innkeepers

"may be cldarly traced up to the Civil Law, from which the common law, without any adequate acknowledgments, has, from time to time, borrowed many of the important principles which regulate the subject of contracts". ^

Story on Bailments §469 ; 2 Kent 592.

To ask us to be controlled by those decisions would be to expect us to ignore our own Courts and to endorse Courts of other States, which, of course, we cannot do. But even in those Courts there is great diversity of opinion. 11 Ind. 454; 22 Cyc 1083 note 21.

But it is obvious to us that the Articles 2751, 2965 must be strictly construed, as to the object and the amounts fior which the defendant shall be held towards the plaintiff. 4 Dallos on Art. C. H. 1952 & 8 p 765. First, on account of the small consideration which the defendant receives for the services rendered by him, it would be a hardship to impose upon him an unlimited responsibility. In th^s case the plaintiffjobjected to the proof of the sum paid by defesnfeít *n plamiyf to carry his trunk. Second, the great facility with which a plaintiff may recover a judgment. It must be remembered that the testimony of the plaintiff alone entitles him to a judgment. C.C. 2964 (2935) and 2971 (2940):

"The deposition on oath or affirmation of a BingLe competent and credible witness as to the deposit at inns, may be admitted as a good proof, even when the value of ' the .thing so deposited exceeds $500; but the judge must admit this kind of proofs in that case, with circumspection, according to the circumstances of the fact and the condition of the parties”.

The original Article 2965 (2936) of the Code of 1825, even thou^i interpreted in a strict and restrictive manner, worked such a hardship on hotel keepers by delivering them almost defenseless to unscrupulous guests that the legislature of 1860, passed an act entitled

"An act for the protection of Hotel Keepers", which exempted them from much liability upon conforming to the requirements of the Act. This act is now Articles C. C. 2968, ItSf. Similar statutes have been adopted in other States of the Union, and in several contries of Europe, England, France, Spain and others. 20 Baudry- Lac p 605, 606 Ho. 1189 p 621 Hos. 1225, 1226 to avoid the rigor of interpretations of their Courts.

By Act 231 of 1912 a broader act was enacted limiting the liability of innkeepers to their guests to $100 -, or the value of reasonable wastring apparel filling a trunki^These Acts indicate the intention of the several legislatures to restrict rather than to enlarge the responsibilities of innkeepers, adopting the ^ ■ spirit of the decisions of our Courts. If we take the liberty of V\S°ias further than our own Supreme Court has gone, and extend the nature and kind of effects for which a carrier shall be liable, then will the bars be let down, and every judge will add another Í^tffect" as his own judgment will advise, and in the course of there will be no exeeption to the liability of innkeepers (or carriers.

The Civil Code does not impose upon carriers the absolute responsibility imposed by the common laws. 47 A, 224; 115 La. 6; 2 Ct. App. 239.

It is therefore ordered that the judgment herein be affirmed.

Judgment affirmed.

April 24th, 1922.


author: ST: WILLIAM A. BELL, JUDGE:

text:
    EMILY LE SASSIER versus WILLIAM C. FAUST
    NO. 8329
    COURT OF APPEAL PARISH OF ORLEANS
    VJH. A. BELL, JUDGE:

   ST: WILLIAM A. BELL, JUDGE:

Plaintiff sues defendant for damages to tvro trunks, one wardrobe trunk and a hat trunk, and the contents of each. To ■her petition is annexed an itemized list of the property alleged by her to be damaged, with the valuation of each item, the total amount claimed being the sum of Five Hundred and Twenty-One Dollars and SeVenty-Fiye Cents ($531.76.0. There is no dispute as to the facts- causing the damage in this case, the only conflict between the litigants being the value of the artioles damaged, and the extent of the damage sustained. In argument it has been admitted by counsel for defendant,. that defendant was negligent in failing to deliver the trunks and contents at the time they should have been delivered, and that if said delivery had been made, the damage resulting from the failure to deliver would never have arisen. It is therefore right and proper that plaintiff should recover such damages as are proven by the evidence.

This case was tried in the lower Court without Jury, and the full amount prayed for was allowed. At the hearing before this court, the damaged trunks and sane of the contents ■were exhibited, and we have had an opportunity not usual in an appellate oourt, 'to examine the extent of the physical damage sustained, in so far as these items listed.in the exhibit attached to the petition, have been produced. There are many items on the list which the record shows were never submitted to the Trial Court, nor to this court, and these latter items appear to be as follows:

E X H I B I T "A"
1 Satin Evening .Dress-$65.00
1 Blue Georgette Crepe Evening Dress-$85.00
1 Silk Sweater — :-§30.00
1 Wool Sweater---§16.00
3 Woolen Mufflers-$10.00
1 White China Silk JBegligeó-§45,00
1 Box of Stationery-$ 6.00
1 Filipino Night-Gown-$ 6.00
----$260 ,00 ,

The damages sustained by plaintiff, and sought to be recovered in this suit occurred in Ootober, 19E0, and a$ the trial of this oause in April, 1921, plaintiff was ashed to ' aooount for all of the artioles mentioned on the list attached to-her petition described as "Exhibit to which she replied that 'she had kept all that she possibly could, but that the odor caused by the chemicals by which they had been damaged in a fire, rendered the artioles so offensive that she could net keep them around her, and that they were probably in an out-house at her residence - but she added that she did not really know about this as a faot, and had not looked to see that they were carefully put away. She was then asked would she mind producing them. She replied "X would be delighted to do so." She stated further that she had never been able to use'any of the things on the list, and that several of the artioles which could not be brought into Court she had tried to have cleaned and dyed, and that they had simply fallen into shreds. A month later, in May, 1921, in response to defendant's previous call for the production of the artioles above enumerated, it was explained by plaintiff, by her aunt and by her uncle, both of whom resided with her, that the goods flailed for could not be produced, because they had been given away after plaintiff's mother's death, which ooourred in December, 1920. At this second hearing plaintiff admitted that the only things which she could produce we re those Which had already been exhibited at the trial, and which appear from the evidence, in items and values, to be as. follow’s:

1 Hartmann Wardhobe Trunk-581.75'
1 Hat Trunk-835,00
1 Pair Bronze Shoes-SIB.00
1 Green Hat-$35.00
1 Blue Satin Coat-565.00
2 Hhite Skirts at $10 ea,->-$20.00
1 Writing Pad- —$10.00
$261.76 Plus- — 5260.00
GRABD TOTAL-$521.75

The articles not produced were, as stated above, given away to the Salvation Army, after the death of plaintiff's mother. When her aunt was asked by her counsel the question: "Did the plaintiff know of the maid's throwing any of the missing items away?" the answer vías "Yes, sir. Her mother had just died, and of course we didn't trouble her with anything of that sort, in the distress she was in. We didn't ask, 'Do you want this did, faded dress?' and all that. They were thrown away, and carried out."

irom the testimony just quoted,-it is impossible for the Court to determine whether plaintiff knew at the first hearing of this case that the missing articles asked for could not be produced. The fact remains, however, that neither the Trial Court nor this Court has had the benefit of seeing or examining any of the missing articles, which should hnve, under all-the rules of evidence, been produced, if damage to ¿áí ar-Jc tides -ísaSiclaited especially as the custody of said articles was willingly surrendered to plaintiff by the defendant after the alleged damage was sustained, and plaintiff undertook to receive the same without an opportunity of adjustment or examination given to defendant until' the trial of the suit, and then only in the limited manner here shown. The plaintiff, having reoeived the damaged goods, it was her duty to preserve them until the adjustment of all 'damages was donsummated, in order that plaintiff, upon whom the burden rests in such oases as this, could have made certain the extent of the damages sustained. The evidence is positive on the part of the defendant, that no agreement wap made to pay the bill, but request only was made tp plaintiff by defendant that she should acoept the trunks and their contents, and should send in a. list which would receive . defendant's attention. This request being acceded to by plaintiff cannot redound to defendant's detriment, when under every rule of evidence, he is entitled to the opportunity of inspecting and examining the goods in their damaged condition. If, through no fault of defendant’s, this opportunity was ultimately lost to him. plaintiff cannot be heard to complain when she has .failed, for reasons beyond defendant's control, to make her proof certain' in respect to the lost articles alleged to be damaged, por these reasons, we are not in accord with the judge of the lower Court in allowing damages for the articles not exhibited in the trial, when called for, these articles as above shov.n, amounting to the sum of Two Hundred and Sixty Dollars (§260,00) • To this extent, we are of the opinion that plaintiff has not proven damages, and that to this extent, same cannot be allowed.

Discussing the items exhibited at the trial of the cause, and herein listed in the second list above mentioned, vie find that the extent of damages allowed in the lower Court is not justified.

the Hartmann wardrobe trunk, valued by plaintiff at Eighty-One Dollars and Seventy-Pive Cents (§81,76), and the hat trunk, valued at • Thirty-Pive Dollars (§35,00) appear, on close examination by us, to be damaged in the sum of §26 and §10 respectively, We arrive at this figure from the evidence of the only expert produced in this case - a trunk repairer who has been in the business for over twenty years, and who has stated that these articles could be repaired and restored to their former condition, "like new" for the total sum of §25. We do not feel justified in allowing .plaintiff to reject these trunks as wholly damaged and useless, and to recover for the full value therefor as new, under prices at which they were bought a year before the damage.

The bronze (evening) shoes claimed by plaintiff, to be valued at §15, and worn "but once or twice," are shown on examination by us to have had undoubted wear, and therefore we think that damages to these shoes, if any, should not exceed the sum of §7-,00.

The green hat appears to be a total loss, and the price thereof is allowed at §55.00.

April 24, 1922.

The blue satin ooat valued by plaintiff at }6b.OO, shims very few, if any acid stains, ‘but most extensive Wear arouád tbe'dollar and neok,■ This article appearé from the evidence to.have bean-hanging in the wardrobe trunk, and that only the bottom of the wardrobe trunk was wet, and damaged by the■chemicals used in extinguishing the fire inoident to the .damage'. We are satisfied, from the physical evidence of the article, that same was anything but a new ooat at the time of the damage,, and are of the opinion that the damage allowed should not exoeed the sum of. $86,00

Only one of ‘^ha two white skirts has been exhibited,' and from the one exhibited it appears that a loss of not more than $10,00 should be allowed for both of these, skirts.

The writing bad is a total loss, and its value., at $1Q,00. ahoujd be allowed, thus making a total damage establishedv%)^|i fTddepoe of One Hundred and Twenty-Two Hollars, ($18E,.

■ glUC’t'be, Tr^al Oaürt seen the other articles claimed to have beondssaget^ and fixed a reasonable valuation thereon, iff findings would, not have been disturbed, but. the failure of plaintiff, ás abóye'shown, to produce any of the damaged. art idea toy t^while in her custody, precludes her right of reooVery, and ohly suoh damages as have been, hereinabove enumerated ean be allowed,

lor the.foregoing, reasons, it is ordered, adjudged t and decreed, that the judgment herein appealed from-in the sum of Five Hundred and Twenty-One Dollars and Seventy-ffivs Oents ($5£1,?6) be, and the same is hereby amended and reduced to the. sum.of One Hundred and Twenty-Two Dollars ($12£.00), oo3ts of both courts to be borne by defendant.

AMEHDiED, ADD 13 AMENDED AOTÍEMBD.


author: Dinlcelspiel; J.

text:
    NO. 8330
    COURT OF APPEAL PARISH OF ORLEANS,
    BLAZ ANTICICH versus JOHN MICHALFEVICH.

   Dinlcelspiel; J.

_ In s suit between plaintiff and defendant, who v/ere .partners in tr‘-de prior to ths institution of the suit for the appointment of a. receiver and liquidation of its effi-irh, and when a written agreement was entered into die.-olving the oo-y rtn.-rshio in question ■ nl defendent agree-'ng to y-y pi- intiff the sum of One. Thousand Doll-rs, end they •debts were to collect outstanding/1 due them of some eight thou»cnd dollars, e-.ch one to do ths collecting of accounts^ in the course cf the lioig- ticn for the appointment of receiver; and subsequent thereto there w;s filed by plaintiff, proceedings preying for a writ cf attachment ag-inst ths property of the defendant, demanding the sum of One Thousand Dollars, tnd alleging: "Th! t the defendant fa h-e mortgaged, assigned or disposed of or is bout to mort-g¡ ge, assign or dispose of his property rights or credits or seme p'-rt thereof, with in'rent tc isfr ud his creditors or upfair preference to some of them, ‘-nd th- t he has ponvertea conv.rt or is about to/ this property into money or evidences of it, with the in bent to ;.l>-cs it beyond the re; oh of his creditors, end th=t writs of astachmsnt ere necessary to protect petition r in ths premises."

The affidavit necessary for the iesuanoe of the writ ■together with the bond r;.paired by lew h.-ving been given, the o;urt ordered Chat the writ of attachment issue, and th-'t plains Iff1s property or a p rt thereof be ceizsd by the Civil Sheriff end held by him ewaiting the furth-.-r cations of the court.

Subsequently o motion wss made by the attorney of the defendant in this suit, alleging th-.t the writ of attachment eg--inst the defendant end ths affidavit were false end untrue. Alleging further that suit h-d sire- dy been brought by Meintiff ag'in3,t defendant for the recovery of the amount due, if any, on the same contract therein sued, upon, v/hioh is tis Pendens, and now pending before thi3 court for decision; alleging further that-in the suit now'pending.before this court between the seme parties praying for the liquidation of the firm and asking that a reo elver be appointed, to thke charge of the business end assets, that the receiver alone íralú w'-s authorized to institute the suit. Alleging further th»t a portion of the property herein seized consisting of shucking shed , Shell pile, boxes and oarriers, and the building, ell located on the Vnk of the o'-nal bilonging to the Louisiana ’uvigation end Company was 30ld by mover in good faith on the 18th day of April 1913, to one John G&oe, who immediately took possession of same; therefore the true owner and in possession. Finally praying that the writ of fcstaohnent issued in this matter he dissolved, reserving his rights for damages.

The only question before this Court is on the rale to dissolve the attachment, and we ere not concerned with the merits of the dase at all.

Plaintiff in our opinion being the acknowledged creditor of the defendant in the sum of One thousand dollars, under a written agreement undisputed in this esse, h.ad a perfect legal right to collect this sum, but whether or not he had the right to the writ of atteohment in order to collect this money is the only matter we e.re now concerned with. It would serve no useful purpose to quote pt length any portion of the . evidence found in this record, most of it goes into the merits of this controversy, to which at this time and under this rule We have no right to enter.

Aa in all eases of this character the evidence is more or less contradictory, but an attachment is a harsh proceeding and one where plaintiff in the attachment suit mUst make the facts clear, showing his right thereto and if he falls in this, the attachment *a*t;: be dissolved.

Sha authorities are numerous and. are■summarized in the 1st La. Digest Annotated, page 702, commecning with Lacy vs. Kenly 3rd La. 16.

1st. National Bank of Natchez vs. Moss, 41 327.

If. has S3.SO been held:

"The intent to defraud is the essential ingredient ■' to .ataiaitain a writ of-Attachment."

Abney vs. Whitted, 28 La. 818.

Auge vs. Variod, 31 La. 865.

Steinhardt vs. Lemann 41 La. 835,

"An ftttaohment based upon 0. P. Noa. 4 and 5, Artiole ¿40, .oahnot be maintained without satisfactory proof of some aot Showing the fraudulent intent of defendant to plaoe property- beyond the reaoh of his creditors or give an unfair preference to some of them. The dally selling of his goods in the .usual ooiirse of his business by a paint dealer is not suoh an aot,. although he be financially embarrased,"

Lehman vs. McFarland, 35 Ann, 636.

Standard Cotton Seed Oil Co. vs. Matheson, 48 Ann. 1358.

Proof that the debtor is offering his property for sale in order to realize funds for the payment of all his debts snd liabilities, aooompsaled by a declaration of suoh purpose to the attaching creditor, himself, will not justify an attachment.

Poitevant Lumber Co. vs. Standard Planing Mills, 49 Ann. 79,

When the proof does not disclose an intention on the part of the defendant either to defraud their creditors or to give an unfair preference to some of them, the Judge of the District Court is authorized tr dissolve the attachment.

Palmer vs. Hightower, 47 Ann. 17.

We ere convinced from the testimony that ttye áefendfc-nt did not sell all of his property, but that he had oth-r property, more than euffioient to satisfy the olaima of plaintiff and all his other creditors.

.for the reasons assigned the judgment of the Court aequo is dissolving the writ of attachment in this case, is maintained, and affirmed, and it is now ordered that the rule decided dissolving the writ was properly«stáfifefc&ffi&ás oosts of this rule to be paid by the plaintiff and appellant,

-Judgment affirmsd-


author: BY: WILLIAM A. BELL, JCDGF,:

text:
    JOHN R. MCMAHON versus JOHN PETER BOESCH
    NO. 8331
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    June 19th, 1922

   BY: WILLIAM A. BELL, JCDGF,:

/y plaintiff files suit against defendant claiming Ten Thousand Dollars ($10,000) damages alleged to have been caused by defendant's minor son. Prom a judgment rendered by the Trial Court appeal was taken to the Supreme Court of Louisiana, but was remanded'by the Appellate Court to this Court, by judgment rendered June 15th, 1921, which judgment reads in part as follows, to wit:

"It becomes apparent, upon reading the evidence, that the amount really involved herein could in no conceivable view be sufficient to vest this Court with jurisdiction of the appeal. It ig therefore ordered that the case be transferred to the Court of Appeal, parish of Orleans, the costs of the appeal to this Court to be paid by the appellant; other costs to await the judgment of that tribunal."

The petition in this case shows that plaintiff claims damages from defendant of various acts of defendant's minor child, who, it is alleged, was constantly annoying petitioner in the peaceful possession of his home; that on February 20th and 24th, 1917, said minor, Peter Boesch, placed tacks on the driveway adjoining plaintiff's home, and on both occasions caused puncture to the tires of plaintiff's automobile, and that for these offenses the said minor was found guilty in the Juvenile Court; that after the trial in the Juvenile Court, the mother of the boy, and wife of defendant, made ugly and vulgar signs towards plaintiff particularly on Sunday, March 4th, 1917; that on other occasions screens and window glasses in plaintiff's residence were broken, the bell of his residence also broken, and that these acts all charged to have been done by defendant's son, together with the alleged insults offored plaintiff by the defendant's wife; that as a result of said acts, petitioner has suffered inconvenience, annoyance, humiliation and damage, to the extent of $10,000.

Defendant answers this petition denying par-tioularly that the minor, Pet.er Boesoh, was guilty of the act of placing tacks which caused puncture to tires of plaintiff's automobile, and alleges particularly that the said minor was discharged by the Juvenile Court under a trial for this offense, and annexes to the said answer a copy of the proceedings taken in said court.

further answering, defendant alleges that if a pane of glass were broken by respondent's son, it was done innocently and without malice, and while playing in a game of ball with other boys. It is particularly denied that defendant is responsible for any broken screens or glasses or bell in plaintiff’s residence, exoept the pane of glass claimed to have been broken innocontly, and for which defendant alleges that plaintiff was paid by him.

It is finally denied that the minor, Peter Boesch, was encouraged in any way by his mother, defendant's wife, to commit any acts of violence or annoyance.

The Judge a quo, rendered a Judgment decreeing that there be Judgment in favor of the defendant and against the plaintiff, rejecting- the latter's demand at his cost, and at tha trial of the case, the following reasons for Judgment were dictated into the record:

BY THE COURT: "The evidence is perfectly clear to my mind that defendant is not liable, committed no set. This last boy was the only one evidently took those tacks a3 he says himself, he went into the kitchen and get them, and if it is true, he put them in the driveway,which I very much doubt. Judgment for defendant."

Defendant offered no evidence at the trial of this case exoept the certified copy of the proceedings in the Juvenile Court, held three days prior to the institution of this damage suit. This evidence shows that the plaintiff made affidavit against defendant's son, the minor, "under the age of seventeen years" in which he charged the child with delinquency in that on the 20th and 24th days of February, 1917, while within the juris dio ti on of the Juvenile Court, the said Minor was guilty of malioious mischief. On the bach of the affidavit it appears that on the 28th day of February, 1917, the child was paroled by the Court, under the care of its parents, and on the 3rd day of March, 1917, was discharged «with reprimand” by the lata Hon. Andrew H, Wilson, judge of the Court,

One of the boya, a playmate of peter Boesbh, was called as a witness in this case, the-material portion or his testimony being as follows;

By Mr. Wendling: "Do you recall having testified in the Juvenile Court before Judge Wilson?
By the Court:' Ask him, what he testified to. Do you remember what you tola Judge'Wilson?
A. Yes, -sir.
Q» You can repeat that?
By Mr. Wandling: What did you tell Judge Wilson?
A. 1 told him that we all put the taoks.
Q. When you say, we all, who do you refer to?
A. Peter Boeseh, Jack Cassard, Willie Cass5rd“aH3”i^self.
Q. Peter Boeseh you refer to is the son of the defendant?
A. Yes, sir.
Q, He lives with his father?
A. Yes, sir.
Q. Eow many times did you put taoks there?
A. Onoe.
Q. Only onoe?
A. Yes.
Q. Where did you get the taoks from'?
A. Mrs. Boosoh's house.
Q. peter Boesoh?
A. Yes, sir.
By the Court:
¶/ho got the tacks?
A. Peter Boesch - all of us.
ft. All of you went into the house and got them?
A. Tos, sir.
Q. Who gave them to you?
A. Mrs Boesch.
By Hr. Wendling:
Q. Did you tell her what you wanted them for?
A. Yea, sir.
ft. What did you tell her you wanted them for?
A. lo put tacks under Mr. McMahon'3 automobile.
ft. And she gaye them to you?
A. Eo, we took them.
Q. By the Court: Where were the racks, whereabouts in the house?
A. In the kitchen.
ft. And you boys went into the kitchen and got them?
A. Yes , without her knowing it.
ft. By Mr. Víendling-: vías Mrs. Boesch there when you took them?
A. Eo, she was on the -porch.
ft. Did you tell her that you took the tacks when you came out?
A. Ho, sir."

Prom the above testimony, there can bo no doubt that the order entered in the Juvenile Court while discharging defendant's son with reprimand, sho?® that the Court found that he, with other boys, had placed tacks on the roadway of plaintiff's garage.

ih»r« io other testimony; In this :reoofd given by the plaintiff himself and a third party, plaoed to watoh the boya 'oonosming the matter of placing the tabks aá haa bean 'charged, but'neither the plaintiff nor; this'witness hate tea-ti'fied.p.ositively that they'thesis elves saw the taoha being plaoed as alleged in plaintiff's petition.

Ihe eoqpression 0f the Judge a ano herein above quoted, as well as his rulings shown in portions of the reoord, make it olear that he "oonsidered the playmate of defendant's son a competent witness, of sufficient age to appreciate the solemnity of an oath, and to testify thereunder to the truth.

We do not find, as the trial Judge seems to have done, that the playmate only, and not the defendant's son plaqed the tasks whloh caused' the damage,for we note from the evidence above quoted, that the playmate distinctly said that he haa tola Judge Wilson "we all put the taoks there —- where the automobile goes down." However, the offense, though a mis-ohiss'ous one, does not seem to have caused much damage, the punotures oomplained of having occurred particularly oh only two dates, and causing áspense, according to plaintiff's testimony, of about seventy-five oents (.75) on eaoh ooc&Sion, or a total .of one dollar and fifty cents ($1.50)'.

Where is positive evidence, however, and it is not oontradioted, that plaintiff himself saw defendant's son. oh two oooasions break two large panes of glass, by using what is oalled a "nigger-shooter," and that this, damage cost plaintiff the sum of §10.00 to repair. Ihere has been definite testimony, sufficient to satisfy any oourt, that at least plaintiff has been put to expense because of the mischievous, if not malicious conduct of defendant's son, to the extent of $11»50. wo disregard this evidence simply because of its trivial nature, would be of great injustice to plaintiff, who has. mads positive proof, which oannot be disregarded, and whióh has not been in any way oon-tradioted by the. defendant in this suit, in fast, the reoord . shows that though defendant's son;was in oourt at tro trial of this oauae that neither derenoant nor his son offered any tea» timony or other evidenoe to disprove the positive testimony that the damage shown to have been done actually occurred. It is a presumption of law, which the oourt is compelled to ob*, serve, that had defendant's son not oomnitted the aots charged-that he would have taken the stand-and so testified*

Art. 2318 of the Revised Civil Code reads as follows:

vihe father, or after his decease, the mother, are responsible for the damage occasioned 'by their minor, or Unemancipated ohildren, residing with them,'or placed by shem under the oare of other persons, reserving tp them reoourse against those persons.”

This provision of the Code has been definitely recognized and upheld by decisions of the Supreme Oourt of this State. In the oase of Mullins v. Blaise, 37 Ann., p. 92, the Court said:

"The law itself imputes tie fault to the father.. It presumes that it resulted from lack of sufficient oare, wat.chfullness and discipline on his part in the exercise of the paternal authority. This is the very reason and -foundation of the rule."

In this same oase the Court found that the' fact that the father was momentarily absent from the house at the time of the accident did not suffice either to exempt him • from responsibility, or to transfer it to the mother. See also Karionneaux v. Brugier, 36 Ann., p. 13,

It appears that since the appeal taien in this matter to the Supreme -Court of loui'siana that -the defendant, Jean Pierre Boesoh, has departed this life, and that by petition of plaintiff filed herein, the deceased defendant's wife, widow and executrix, Mrs. Victoria Coudevilain Boe3oh, has been made a party to these proceedings.

Considering the facts as now found by us, and the law applicable thereto, we are, for the reasons hereinabove stated, of the opinion that there should be judgment reversing the deoree of the lower court, and that plaintiff should recover of defendant in the sum above shown.

It is therefore ordered, adjudged and decreed that the judgment herein appealed from be, and the same hereby is reversed, and that there now be judgment in favor of John R. McMahon, against MTS. Victoria Coudevilain Boesoh, ezeoutrlx of Jean Pierre Boesoh, in the sum of Eleven Dollars and Fifty Cents ($11.EO) with interest thereon from judicial demand until paid, and for all costs except those incurred on the appeal to the Supreme Court which have already been taxed by said court against the plaintiff.

JCTEGMEira REVERSED.

June 19th, 1922.


author: CHARLES F. CLAIBORNE, JUDSE.

text:
    HgÉEÍ'es IP. Claiborne, Judge.
    MERCHANT'S ICE CO. VS WEIL-GUTMANN SUPPLY CO.
    No. 8341
    June 30th, 1922.

   MERCHANT'S ICE CO. VS WEIL-GUTMANN SUPPLY CO.

No. 8341

CHARLES F. CLAIBORNE, JUDSE.

This suit is for the restitution of the price of sale id dor damages.

The plaintiff avers that it has been engaged in the manufacture of ice since the year 1909; that in the latter part of 1915 a number of the absorber tubes in two of its 'machines 'began to give way from wear and tear, and required to be changed; these tubes liad been originally set in position by the Vogt Ha-chine Co. of Louisville, Kentucy; that they viere about purchasing their tubes from the same Vogt Company, when they were approached by the defendant Company which represented to' them that its tubes manufactured by the National Tube Company were the best on the market, far superior to all others for petitioner's purpose, better and cheaper than the Vogt tubes, and would give better service -; that yielding to defendant's solicitations and relying on their, representations, plaintiff gave defendant an order for 720 tubes for the price of $619.20 that 3aid tubes were placed in petitioner's two ice machines at an expense of $251; that the work of putting defendant's tubes in one of .plaintiff's machines was completed on December 31st, 1915 and the other on February 7th, 1916; that the first machine started to make ice at once, and the second machine on Hay 14, 1915; that the tubes of defendant-' s Company installed in the first machine began to develop defects and to give way on or about Uay 14th, 1916, and those on the second machine in the latter part of June 1916; that defendants were notified of those defects but failed' to remedy them; that plaintiff was obliged to remove all of said defendant's tubes and to replace them with the Vogt tubes at an exoense of $1584.00; that the only reason why plaintiff purchased defendant's tubes was because of defendant's representations hereinabove stated - for all- of which plaintiff claims of defendant a restitution of the price of $619.20 originally paid and for $830 damages.

The defendant pleaded

"that more than one year from the sale of 'the tubes set forth in'plaintiff's petition elapsed before the institution of said suit and pleads the prescription of one year".
On the same day, the defendant filed an elaborate answer. The case was tried on the exception and on the merits.

Ther8. was judgment maintaining the exception and dismissing plaintiff's suit. Plaintiff has appealed.

Article 0. 0. 2534 (2512) relied on by the defendant reads as follows:

"The redhibitory action must- be instituted within a year, at the farthest, commencing from the date of the sale. This limitation does not apply where the seller had knowledge of the vice and neglected to declare it. to the purchaser".

C. C. 2546 (2524):

"In this case (when the seller knows the vice of the thing he sells) the action for redhibitioij may be commenced at any time, provided a year has not elapsed since the discovery of the vice".

Article 2529 (2507):

"A declaration made in good faith by -the seller that the -thing sold has some quality which it is found hot to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase".

The defendant was not a manufacturer: he was only a "jobber".' There is no evidence that he knew that the tubes sold by ..it did not possess the qualities represented by it; nor was it presumed, as a jobber, to know of the wan'D of said qualities. 129 La. 984 (1000); .838; 15 L. R. A. IT. S. 884; 8 Cfc. App. 408; 114 Lá. 498.

The extent of defendant's representations is thus recited by J. L. Wilburn, Secretary-Treasurer of plaintiff, who negotiated the sale with defendant Company, represented by Mike Calm-:

"We have got as good or better than any other tubes on the market - a tube superior to anything on the market”.

H. Wilburn, President of plaintiff testified:

"He (Mike Cahn) said there was no tube in the world that was better, they were the finest in the market, anm I want to sell them to you".

We fail to perceive in those statements anything else than the boastful "puffing" resorted to by agents to effect sal.es, but which do not amount to a warranty of any kind,^ nor did they amplify the warranty implied by law- in all salesi'C'The plaintiff specifically disclaimed, any intention to charge the defendant with fraud. We do not therefore consider that the statements made by Cahn take this case out of the Articles o'f the Code governing redhibitory actions. The sum and substance of plaintiff's complaint, after all, is, not that the defendant's tubes were not fitted for the purpose for which they were intended, for they were put in position, tested, and accepted, and did satisfactory work thirty or sixty days;- but that instead of being^ood quality and durable, in the language of the petition, they "developed defects", "gave way", "deteriorated", were "defective, inadequate, improper, and worthless", and, according to the testimony, they "pitted, or became full of small holes, by operation of the water passing through them. These are exactly the cause mentioned by C. C. 2520 (2496) for a redhibitory action.

The defendant was cited May 12th, 1917, more thar one year after the sale. Plaintiff's action was prescribed. 3 N. S. 288 ; 4 R. 155; 12 A. 297;- 114 La. 503; 123 La. 1109; 129 La. 1000.

Judgment affirmed

June 30th, 1922.


author: Honor John St» Haul.

text:
    NO. 8342.
    JOHN D. NIX, JR. VS JOS. PETRIE & CO., LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

      December 12th, 1921.
   opinion.

3y his

Honor John St» Haul.

Ihia was an aotion for "slander of title". On ffeby 21st we decided that Petrie fc Oo were the owners'of the.property involved.

On April 5th plaintiff caused said property to he seized, under a writ of Pifa issued in a quasi hypothecary action instituted against Alexander Madison, a former owner of the property, to enforce payment of a claim against said Madison secured hy mortgage and vendor's lien upon the property.

On May 23 Petrie fc Oo moved for a writ- of possession herein, for the ostensible purpose of "executing" our decree Of February 21st aforesaid, but in fact for the purpose of ousting the sheriff.

2he writ was properly refused by the lower court. Sefentenfs is right to possession as owner^subordinate to that of the aheriff under the writ. Por defendant acquired the property subject to the mortgage even though that mortgage be now in litigation in the matter entitled Hlx vs Madison, Nos 8589-5419 of our dooiet (in which a rehearing was denied this day]. gee Code of practice Articles 61 to 74.

Judgment Affirmed.

Hew Orleans La,


author: Charles F.Claiborne,Judge.

text:
    Mumford Phillips and Al vs Henry R. Pedarre
    No.8345

   Charles F.Claiborne,Judge.

The fallacy of the argument that woul< ialce the " full faith and credit"or"res judicata " theory applicable to this case consists in assuming that the Globe Indemnity Company was a party to the suit in the United States Court oh that anything was decided in that Court as between that Company and Pedarre.

The G.I.Company was not the"transferee" of Lambert's judgment or of his claims against Pedarre.The Company^was the / "subrogee " by virtue of the payment made by it of Lambert’s judgment against Pedarre.As " transferee " it would have required all the rights of Lambert against Pedarre^or such rights as Lambert had chosen to transfer to it,and Padarre would have had, as against the " transferee " the Globe Ins.Co^no other defences, but such as it had against Lambert,'and if it had been"transferee" of the whole judgment or claim,they would have been entitled to a judgment for the whole amount of the judgment of claim. But as"subrogeeywhether by operation of law,by virtue of their payment to Lambert Brosyor by convention,the Globe Ins.Co. acquired only such rights as the law permitted them to acquire.

It could not acquire greater rights than the law accorded to them.All the law accorded to them was the recourse against their co-surety for his share of the bonds,as I have <-ntnl in my opinion herein.The act signed by Lambert in favor of the Globe Ins.Co.merely"confirms the right of subrogation of the Globe Ins Co." and " the Globe Indemnity Co. is hereby expressly subrogated ".Neither the words"transfer" nor "assign" appear in the act.It studiously avoids any inference or intention to "transfer" or " assign ",by specifically stating and repeating tlie deliberate Intention to subrogate only,and nowhere uses the woras transfer or assign.TheSs might have arisen a different responsibility or warranty on the part of Lambert if he had "transferred " or"assigned" his rights.

February 19, 1923

To avoid that responsibility he made it olear,in so many words,that he intended only to " confirm the right of subrogation. A lawyer evidently drew up the act.It is therefore misleading error to allege or argue that Lambert transferred or assigned his judgment or his rights to the Globe In.Co.or that this // ' Company waB a "transferee or"assignee".

The doctrine of full faith and credit wound apply as between Lambert Bros and Pedarre,beoause they were parties to the suit and the issues between them were therein decided.But the Globe In.Co. was no party to that/i suit,and no issues were .^¿^raised or decided in any capacity as between it and Pedarre,and ^ no judgment rendered in favor of the Companyto be protected by the doctrine of full faith and credit or res judicata.

For these reasona our former opinion and decree are re-instated and made the judgment of this court.


text:
    MUMFORD PHILLIPS AND AL VS HENRY R. PEDARRE, Appellant
    No. 8345
    CHARLES F. CLAIBORNE, Judge
    November 27th 1922.

   MUMFORD BHILLIPS AMD The'Globe Indemnity Company Vs. Hy R.Pedarra,Appellant.

Mo.8345

This ia a suit against a surety on a conventional bond.

The petitioners herein Mumford Philips and the Globe Indemnity Co .^represent that in a suit entitled United States ex rel S.Geisenberger vs Friedler and O.A.Gibson Mo.6737 of the U.S.District Court for the Southern District of Mississipi there was tendered on May 1918 a Judgment in favor of plaintiff for the use of Mumford Philips and also for the use Qf Lambert Bros, against Henry R.Pedarra for §2872.79^,of which §1415.07 was for the use of said Lambert Bothers^and for costs §47.93;that the Blobe Indemnity Company was subrogated to the rights of said Lambert Brothers In said suit and Judgment;that the said'judgment is subject to a credit of. §700.00 and they pray for a judgment in favor of the Globe Indemnity Company for §1416.07 subject to a credit of §700 on March 6th¿1918 with five per cent jg £/' y ¿3 per annum Interest from May 6"1918 for costs with five per cent N / interest from May 6th 1918.

For answer defendant -admitted that the judgment mentioned in the petition had been rendered but averred that at the time of its rendition the same Lambert Bros had obtained a judgment against Gibson Hamilton Company and the Globe Indemnity Company in suit Mo.115582 of the Civil District Court and Mo.7167 of the Court of Appeal on November 26"1917,and that said judgment had been paid;that said payment had released Pedarre from all liability;defendant specially averred that^not being satisfied with himself and Baker Stewart as sureties on the bond of Gibson Hamilton Co.the said Lambert Brothers A»*- ¿3c¿UCs ¡ required a-new surety á»3«£e bond,which was furnished in the person of the Globe Indemnity Company.

There was Judgment for the plaintiff and defendant has appealed.

The facts of this case are as follows»

In September 1915, the United States entered into a contract with Gibson Hamilton and Co.to build a certain levee} they furnished bond in the sum of $12,600 with Henry R.Pedarre and Baker Stewart as sureties,conditioned for the full payment of all persons supplying them with labor or materials in the building of said levee;that after said contract had been made the said Gibson Hamilton made a subcontract with Lambert Bros, by which the former hired from the latter a number of mule_ teams to assist in the building of said leges;and in order to secure the performance of this contract and the payment of Lambert Brothers of the hire said mules^the said Gibson, Hamilton and Oo.furnished another bond in favor of Lambert Bros for $4,000 signed by the Globe Indemnity Company.After Lambert had completed his work,he obtained Judgment in the Civil District Court on June 26th 1917 and in the Court of Appeal on November 26th 1917 for $1267.25 against Gibson,Hamilton and Co.and the Globe Indemnity Co.In September 1917 suit was filed by the United States under the No.6737 of the U.S. District Court of Mississlpi,against the Gibson Hamilton Co. and all other parties interested in the bond of $12,600 By them furnished and against Henry H.Pedarre and Baker Stewart sureties on said bond.Lambert Brothers intervened in said suit claiming $1267.26 being the amount raaflissd by them by Judjjaent of the Civil District Court^affinned by the Court of Appell ^ ¿t-gainst Gibspn Hamilton and the Globe Indemnity Company.

On February 4th 1919 Lambert Brothers signed the following duoument t

Lambert Beca Vs. Gibson Hamilton Co. No. Civil District Court Parish of Orleans.Div. and Globe Indemnity Co.Of New York in solido.
" Receipt is hereby acknowledged by Lambert Brothers^ plaintiffs in the above numbered and entitled cause,from the Globe Indemnity Company of Hew fork of the sum of §1461.41 being amount due Lambert Brothers under judgment of the Civil District Court in the above entitled and numbered matter,as amended by the Court of Appeal,with interest and oosts.Shia payment id made by the Globe Indemnity Co. as Bursty for Gibson Hamilton and Company.Lambert Brothers hereby expressly redog-niaes and confirms the right of subrogation of the Globe Indemnity Company in and to all rights,claims,liens,and privileges against Gibson Hamilton and Company,the principal debtors of said Lambert Brothers,including particularly the rights,claims liens and privileges of said Lambert Brothers against Messrs Baker Stewart and Henry Pedarre,sureties upon the bond executed in favor of the United States by Gibson Hamilton and Company to secure the performance of the levee contract upon and under which the claim of Lambert Bothers arose; and the Globe Indemnity Company íb hereby expressly subrogated without prejudice to any of its rights,to all the rights and claims of Lambert Brothers against said Stewart and the said Pedarre,as sejb up in the petition and intervention filed in the name and behalf of the said Lambert Brothers against the said Stewart and the said Pedarre in the United States District Court for the Southern District of Mississipi,at Jackson,under the number 6737 In testimony whereof,the said Lambert Brothers have hereunto arfixed their signatures and seal,in duplicate at the City of Hew Orleans on this 4th day of February 1918 in the presence of the undersigned witnesses.
Signed Lambert Bros.
Per John M.Lambert

Subsequently in May 1918,in the United States District Court in the above suit of the United States vs O.A.Gihson No.6737 Lambert Brothers obtained Judgment against Baker Stewart and Henry R.Pedarre for $1415.07

In the present suit the Globe Indemnity Company,one of the Plaintiffs herein,alleging the above receipt and subrogation by Lambert Brothers dated February 4th 191& copied above ^and the judgment of the United States Court^asks Ji&e judgment against the defendant Henry R.Pedarre for $141o.07 and for $47.95 ■¥9$§$“0* costs of Court as above stated.

It thus appears that Lambert Brothers received payment from the Globe Indemnity Company of $1461.4iybeing the amount of the judgment rendered in their favor by the Civil District Court^as amended by the Court of Appeal,against the Gibson Hamilton Company and the Globe Indemnity Company and subrogated them to all their rights against said defendants and Baker Stewart and Henry Pedarre.lt is true that the transferee of a claim in suit may prosecute the suit in the name of the trane-Sei^-or for the benefit of the transferee.2, La 501-8 R.261-7 A 95-111 La 1021-120 La 369.But in that case the transferee or subrogee is made a party plalntigf of reoord in the suit* the suit continues in the name of,original plaintiff for the benefit of the trans^eree^and the judgment is rendered in favor of the transferee.Ihis was not done in this case in the United States Court; but the judgment was rendered in favor of Lambert ¡^Brothers alorie'.Plaintiff’s claim therefore rests exclusively upon the legal or conventional subpcgation resulting -from the payment of the Lambert judgment iwiHm greater force than /«ry? n 7 the other ¿U Durantdn P.195 S.244-17 AJaurent 360/Artlcle 2161 (2157) of the Civil Code reads as follows ;

Subrogation takes place of right: 1 XX 2 XX 3 XX For the benefit of him who being bound with others or for others for the payment of the debt,had an interest in discharging it C.N.1251 -4 XX C.0.3058 (3027) "When several persons have been sureties for the same detgoxymd for the same debt the surety who has satisfied the dli**t,has his remedy against the other sureties in proportion to the share of each;but this remedy takes place only,when such person lias paid in consequence of a lawsuit instituted against him" C.N.SO35.

There were two bonds/one for $18,600 signed by Baker Stewart and Henry Pedarre in solido and the other v/as for $4000 signed by the Globe Indemnity Companyyboth bonds wére given for the same debtors Bibson Hamilton Company and for the same debt.

The defendant,however^«ontends that the payment by the Globe Indemnity Companyjsurety on the $4000 bond^did not entitle it to a subrogation against the sureties on the other bond. The authorities relied upon by the defendant 5 A 806-541 and 35 A 787 do^k not support his contention.

The'theory upon which one surety^who hás paid,may call upon his ^jcgurg^gr a contribution is that inured to hie benefit and discharge and that iw-should not - . enrich himsblf at the expense of his cosuret^C.C.1965.Troplong caution on Art.C.N.8033 - Pothier obL.446 -28 Laure: • s ti * /S' LAI S 418-421. _ % NX &Z/> /¿/S'. gU¿// > -28 Laureij^yf.2p9^,S. ^//S ) , X, . ., . _ 2. /_( J/ <c? o

Under the lavy Lambert could have sued Stewart and Pedarre on their bond and compelled them to pay his claim.Because Lambert selected the Globe Indemnity Company,the law will not permit it to be made the sole victim by Lambert .Article 3058 of out Code -ps*copied,ipelssimis verbis,from Code Napoleon art2033 »

In 5 426 Troplong says; " But against wafet sureties has the one who has paid recourseíHe has his recourse against all those who,like him,have lent their suretyship.lt matters not that this suretyship has hot bean given simultaneously;it matters not that they have been given hy septate and successive acts.Article 2053 is general it makes no distinction;reason besides asks none.7 Dallos Hep.Leg.P.587 S 289 -3 Laromhiere on ArE. 1251 P.355 S53 -— 3 3 p <3 2- 3 Sj —

9 Marcade ( Paul Pont ) on Article C.N. 2033 P.160 S.III “The recourse under article 2033 takes place against all the sureties bound for the payment of the same debt,and whatsoever may be the date of their respective engagemente.lt matters little that the sureties should have bound themselves at the same time,or before,or after the one who has paidjthat they bound themselves by one and the same act,or by successive and distinct aáftsi recourse takes place in all cases,the law making no distinction.Thus Peter binds himseli as surety this day for Paul after Joseph had already bound himself as his surety for the samé debt a year before.Peter payé Paul's debt under one of the cases mentioned in article 2032 j he may hold Joseph by virtue of Article 2033,jUBt as if he had bound himself conjointly with Joseph and by the same Act." 21 Baudry Lac.P.544 3 2. 2 -

Orí the other hand the plaintiff argues that, he may hold Pedarre liable for the whole debt.He relies upon the oase of Howe vs Frazer 2 R.424.In that case Howe sued Frazer for e slander,and had him arrested.

Frazer was released on a bond signed by Vandry.Howe obtained judgment in the District Court against Frazer for $500 . Frazer appealed with Walker as surety on his bond.The judgment was affirmed. In February 1840.^Howe issued a fi-fa and a áfapias r The Sheriff returned that he oould not find Frazer nor any property belonging to him.Howe then tóok a rule agaiafet Vfalk.r, the surety on the appeal bond,and obtained against him a judgment for $500 and costs.Howe afterwards took a rule against Vandry,the surety in the bail bond,and obtained a judgment against him also for $600,Howe then issued against Walker a fi-fa,whioh was returned satisfied by him.By thiB payment Walker beoame unquestionably subrogated to the rights of Howe against Frazer under the express provisions of Article C.0.2161 (2167 ) S3" For the benefit of him who,being bound with others or for others,for the payment of the debt,had an inetéreBt in discharging it."Afterwards " Walker took a rule on Vandry to show cause why.he should not be subrogated to the rights of the plaintiff (Howe ) against the latter ( Vandry) on the ground of his having ■paid paid the debt,and why a fi~fa should not be issued against him for the whole amount,which was made absolute on the 5rd of March From the Judgment mating the rule absolute,Vandry has appealed."

Vandry*s defense was two fold: 1st That by paying the amount of the Judgment the surety on the appeal bond was not subrogated to the rights of the plaintiff against the surety in the bail bond;and 2nd that he was not entitled to recover from the surety on the bail bond the whole amount of the Judg ment paid by him but only his proportion^one half.

The Supreme Court affirmed the Judgment on the ground that Vandry and Walker were bound for the same debt,and that Walker having been l^st bound " was induoed to undergo the a-responsibility becHuse the principal’s solv^tnoy was guarantied by the person who first bound himself for him."that is Vandry; and for that reason,Walker's Judgment against Vandry for the whole amount was affirmed.

The onlu, authority relied on by the Court for suoh' a •/. conclusion is Article C.C.2161 Í2157 ) and it does riot,oay-M«nt > r A. Ho other artiole of the code is quoted,nor any previous decision the Supreme Court^nor any 9pinion/of any other Court or comraen-tator^Nor $ave we mpt with any authority in the Civil or common law announcing the doctrine advanoed for the first and last time by crur Supreme Court in that case.It is in direct confliot with article C.C. 3068 (3027) hereinbefore quoted which provides.'

"When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt,has his remedy against the other sureties in proportion £o the share of each" •

The attention tfiTthe Supreme Court does not seem to have been carted to that Artiole 3058.But there never was any decision in any jurisdiction.hor any law anywhere that induced Walker f / to believe in such immunity.On the contrary^the lavr and the decisions told him,in plain language that,at best he oould / ¿ryü^i ' cai&y have recourse against his cosureties £6n their proportion.

If the declaim, of the Supreme Court was correct then in all oases where tifre were two or fcore sureties and payment was made by the first surety,he would haye^no recourse against the subsequent surety because.forsooth principals solvency was ' t1'-guarantted by the surety who signed before him.

Because the decision in the Howe case stands alone^ because it does not purport to interpret Article 3058^and because it announces a doctrine so much in conflict with that article and with the principles and theories,supporting it,and with the Jurisprudence in o/her slates^we do not consider that we are bound to follow it.We have to choose between the cleat and unambiguous law,as we read and understand it,and between an unguarded opinion of the Supreme Court which we consider in derogation of the law.We think our duty is to follow the article of the 0ode.

In Quaker Realty Co.vs Labasse 131 La 998 (1008 ) the Supreme Court quoted approvingly :

"A single decision is not necessarily binding" 11 Oye 746 " More than one decision " said Judge Martin in Smith vs Smith 13 La 441 " is required to settle the jurisprudence on any given point or question of law."We have ofterusaid" said this Court in Lagrange vs Barre " 11 Rob.302 " it requires more them one decision to establish a jurisprudence. "
" TJh rulerstare decisis" is entitled to great weight and respect,when there Stas been on a point of law a series of adjudications all to the same effectjbut when we are presented with a single decision,which we believe to have been unadvisedly made,it is incumbent on us to overrule it,if we entertain a different opinion on the question submitted".6 R 216-225-228-13 A 345.

Stewart and Pedarre had signed ^solidary bond for $12,600 ot\$.b to them for $6,300 each^andMgie Globe Indemnity Company for $4,000 making bond for the amount of $16,600.

It is therefore ordered that the judgment of the Dlatriet Court he amended jand it is noi^Crdered .that the Globe Indemnity Company do have and recover judgment against Henry H.Pedarre for ^6300 — ^16,000 JJis of §1415.07^ plus $47.93j( subject to a credit of $700 on March 6th 1918 ) with five per oent per annum interest from May 6th 1018 till paid,and for all costs of the District Court herein}the costs of appeal to he paid by, the Glohe Indemnity Oompnay and that as thus amended smefa-judgment / •*- F t be affirmed*

November 27th 1922.