author: By I)is Honor John St. Paul.

text:
    NO. 8282
    SUCCESSION OF WIDOW JONAS V. MARTIN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPISIOH.

By I)is Honor John St. Paul.

\ On Motion to Consolidate: Tho appellant has moved to consolidate this appeal with tho appeal in Ho. 8302, entitled " P. J. Slanagan, Admihistrator Vs land Development Co," on tho ground that the two appeals are so intimately connected that they should ho heard and disposal, o? to-other. But Motions to Dismiss have beon made in both uppoals; and hence the motion to consolidate is premature, ior it may he that this appeal or the other, or both, will be dismissed; and we cannot entertain a motion to consolidate two appeals until we have first determined to entertain them both. The Motion to Consolidate is therefore denied at this time.

On Motion to Dismiss; I. The first ground urged is that this appeal was taken in one case whilst the judgment uppealed from was rendered in a different case. There is no merit in this contention. It appears that in the court below there was some-cyrelessness which has resulted in mining up tho titles of two cases intimately connected; but tho fact remains that on April 1st Judge Sogers of the Civil District Court rendered the judgment herein complained of, and on April 19th the same Judge Rogers, granted this appeal from that same judgment, describing it so minutely by number, date and substance, that there cun be no mistuhing whet judgment was appealed from, despite the confusion in titles in the written notion of appeal, That is sufficient. 3. 0. 573.

2. The next ground urged is that the transcript is not complete because certain pleadings, etc, V'ere not brought up. Under Act 220 of 1910, p. £88, a defective transcript is no longer ground for dismissing an appeal. The remedy is to supplement the transcript by bringing up the missing parts; Hayne vs Assessors, 143 La 697 (701). In this case the missing portions are already, physically before us, towit, in the appeal Ho.-8302, above mentioned.

3. The third contention is that this court has no jurisdiction over this appeal, as it involves the execution of a judgment of the Supreme Court. Granted, generally (but with certain qualifications, presently immaterial) that no inferior court can prevent or hinder the execution of a judgment of the Supreme Court; nevertheless it is quite a different thing when the question presented is not whether the judgment of the Supreme Court shall or shall not be executed, but whether the method of execution actually pursued is appropriate to a particular judgment (whether rendered by the Supreme Court or by any other court); for i ¡stance whether a writ of ¿i Pa is an appropriate method of executing a r.ionc-yod judgment against a succession or an insolvent, -and suich is tho question herein prosented; wherein the jurisdiction, original or appellate, is governed (as in other cases) by the amount and nature of tho controversy.

4. .another contention is, that the amount herein involved is above the jurisdiction of this court; for this, tov'it, that if tjje value (or ulleged value) of the property soloed is tho test of jurisdiction in a sv.it to enjoin such seizure, thon whe property seised herein is a suit upon gwif an alleged claim for ¿2970, which exceeds tho jurisdiction of this court. But in an injunction suit to restrain a seizure, where the right to the writ itself is involved, the matter in controversy and test of jurisdiction is the amount of the writ and not the value of the property seized. Hunday vs Lyons, 35 An 990. And here the very right to the 'mrit is questioned since it is claimed that a writ of Pi Pa cannot issue at all against a succession.

5. Or else the amount involved is below tho jurisdiction of this court; for this, towit, that the writ (balance due thereoh) amounts to ('.171,73, against which appellant claims a credit of $74, leaving only .$97,73 in controversy.

June 1921.

But aa appellee has no where confessed that the $74 is truly due appellant as a oredit, it follows that the writ still calls for, and the appellee is still seeking to recover, the full sum of $171,73; which is therefore the amont in controversy and test of jurisdiction.

She ltotion to Dismiss is therefore Denied.

Hew Orleans La,


source: Caselaw Access Project

license: Public Domain

text:
    COURT OF APPEALS PARISH OF ORLEANS STATE OF LOUISIANA
    No. 8340
    JAMES W. HOOLEY METAL WORKS VS GEORGE SCHWARTZ
    Filed July 19/1921
   COURT or iPPEAL, PiBISH OP OHISiHS.

HOLLEY METAL WORKS VS. GEORGE SCHWARTZ.

I IO.BH#)

s CODE! 07 APPEAL : PiBISH 07 OBLEiMS

On motion of GEQBSE SCHffABTZ, defendant and appollaat In the above entitled and numbered cause, throned Ms attorneys, Harriet: t Solwar* and Morris B. Bedmann, and on euggestlng to the Court that tha appeal harein was Inadvertently taken to this Court Instead of to tha Supreme court of the State of Louisiana, and on further suggesting that tMa Conrt Is without Jurisdiction rations matarlas, for the reason that the amount exceeds Two Thousand ($2,000.00) Dollars, and on further suggesting that mover desires to have this cause transferred to the Supreme Court of the State of Louisiana, in accordance with the provisions of ist 19 of 1912s


author: Honor John St. Raul. Honor Jokn 3t. Paul.

text:
    NO. 7872.
    WILKIN HALE STATE BANK VS A. B. TUCKER, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

   opimos,

By his

Honor John St. Raul.

This is a suit en three promissory n*tes all drawn ty defendants to the order of Pruiett, Day k Sniggs, and all dated ^^^^T^Pebruary 4th, 1917; each for the aura of #600, and payable /JbJrr /Jyi/ s r-' ' ' respeotiroly August 24th 1917, September 24th 1917 and October 24th 1917.

Plaintiff same bona fide into possession thereof on March 12th 1917, by receiving then from I/fomaa Pruiett, a member of the law firm of Pruiett, Day k Sniggs, aforesaid; said notes having then been pledged by the said Monan Pruiett as collateral for a personal loan to himself in excess of thair amount and still unpaid.

The defense, stript of details and circumstances, is substantially this; That by the transaction aforesaid no legal title to said notes passed to the plaintiff, but on the contrary the legal title to said notes is still vested in the fiom of Pruiett, Day k Sniggs; and accordingly the said notes have been extinguished by certain payments made to said firm between Hay 26th 1917 and June 6th 1917, to wit, six payments aggregating 1535.

I.

As plaintiff came bona fide into possession of the notes long before their maturity, It ia perfectly wloar, If at that tine it acquired legal titl# thsreto, that a* subsequent payments nado to Pruiett, Day & Salega could possibly disoha^e the maters tharoef to the prejudice of plaintiff’s right» On the other hand, if plaintiff acquired no legal titli te said notes by the transaction aforesaid, and the legal title thereto is still rested in Pruiett, Day is Sniggs, the plaintiff cannot recorer upon tha notos at all whether paid or unpaid.

So that the question of payments made, or not made, to Pruiett, Day tc Sniggs after March 12th 1917, is wholly immaterial and irrelerant ia any controversy arising between this plaintiff and theso defendants; and the solo and only inquiry permissible between them is whether er not the legal title to said notes passed out of Pruiett, Day t Sniggs and ever to plaintiff by tha aforesaid pledge of March 12th 1917

II.

Therefore/ whan we had this case before us, we thought that there was in the record oridence sufficient and competí* to warrant the conclusion reached by Judge and Jury in the court below, towit, that Uemaa Pruiett had the consent and authority of his partners to pledge these notes for his own personal account; and hence that plaintiff had acquired the legal title thereto hy the pledge of Haroh 12th 1917. And we so held.

But when the ease reached, the Suprema Court, that court thought the evidence on which we based our judgment, oould not he considered hy us. Wherefore they set aside our judgment and remanded che case to us.

All this considered, it is now our conclusion that without that evidence, plaintiff has not clearly established the right of liernan Pruiett to hso these notes for hi3 otra personal account.

But a reading of our former opinion herein will show that there is evidence, readily available, tending to show that he had such right; and hence we think that in the interest of justiee, the case should he remanded to the court of first instance in order to permit the introduction thereof. Por, under C. P. 906 an appellate court may remand a case with instructions to the court aqua to take further testimony on a particular point as to which the evidence is insufficient or not clear. Alford vs I. C. R. R. Co, 9 Orleans App, 110; Marti* vs Pachón, 188 La 829c

She judgment appealed from is therefore reversed and set aside; and it is now ordered ohat this case he remanded to the Court below for a new trial, with instructions to saaeive evidence 'Iran either- aide tending to ahew ax -deny tha right of-Henan Praiatt, an Marsh 12th 1*17, to pledge tha notes karats one/ upen far hia own personal account; asi especially ta a Salt is iridenee, if offered., the testineny .heretofore taken hy comniesion tut net offered at the firat trial; subject howoTor to all legal objections as to iititiit xeleTancy and competency which night hare been nada tharete at the first trial; and far such other proceedings in eoeerdaaee with the abara opinion as nay be warranted by law» She coats of this appeal to be borne by plaintiff and all ether oasts ta await the final result»

October 31st, 1921.

Haw Orleans la,

NO. 7872

WILKIN HALE STATE BANK VS A. S. TUCKER, ET ALS.

STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

Judgment Affirmed.

OPIHIOlí.

By hls

Honor Jokn 3t. Paul.

Our two formar opinions sufficiently state the olroumstanoes of tkis oase to skow how.the following questions of law arise herein, towit;

lo. Has tke ¡endorsement on tke notes herein sued upon keen proved hy the mere fact of showing that (being payable to the order of the partnership) they were negotiated by a member of the partnership with an endorsement thereon purporting to be the signature of the firm?

So. Hoes the mere faot that the notes were taken by plaintiff directly from a member of the partnership, and the proceeds applied to his personal account, constitute suoh notice of "defect in the title of the person negotiating the sane", as to deprive plaintiff of the status of a holder in due course? Regot. Inst. Law. Seo 6*.

I.

"Sxaotly what constitutes a signing, has never been reduoed to a Judloial formula. Legibility is not a requisite, x x x completeness is not a requisite x x x; the initials x x x, the first name x x x, a fictitious sane x x x, an endorsement in figures, were held a sufficient signing; x x x whatever the testator, or grantor, is hhown to have intended as his signature, is a valid signing, no matter lion imperfect or unfinished, or fantaBtioal or illegible, or oven false, the separate oharaoters or symbols ho used might bo when critically judged". Plate's Batata, 148 Penn S6p 67. And it matters not that the signing was "made with lead pencil, or typewritten, or printed, or out from another instrument and attached". S6 Cyo 448, Hence whatever a person intends or represents or puts forth as his signature, I£ his signature pro hao vice. And accordingly when lioman Pruett tendered to plaintiff a note endorsed "Pruett, Bay fe Sniggs, by Moman Pruett," the proof is Juris et de Jure that this endorsement was put thera by himself.

II.

It may be admitted that plaintiffs were held to a knowledge of the law, that one partner cannot use the partnership assets for his own individual aocount without the consent of his partners; and the paper gave notice on its faoo that it was, or had bean, a partnership asset. But it did not give notioe (if suok were the fact) that Homan Pruett did not have the right, or the ooasant of ais part aera. to uso it as he did.

Certainly however, there was sufficient to put plaintiff on inquiry; and prior to the adoption of the Uniform Negotiable IniJnrument law, the authorities were vary conflicting as to whether or not it sufficed that the koldor lie put on inquiry in order to oonstitute notioe of "defect in the title of the person negotiating same". See Norton on Bills and Notes, 4th Edition, pages 42* to 463, and the copious notes thereon.

But under that law (Our act of 1904) it is provided in Seation 56, that in order to oonstitute notioe of a defect in the title of the person negotiating the note, the person to whom it is negotiated must have actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to had faith.

Hence, "mere suspicious oircumstanoes are not sufficient to prove, ub against the holder, notioe of a defect in the title of the person negotiating the note to him; hut in such case there must he actual proof of knowledge of the defect, or of faots sufficient to charge him with had faith in taking the instrument.''" Levy vs Moise, 8 Orleans App. 8, 9.

Ana. again; negotiability means simply "ourrenoy". (Hiller ts Baos, 1 Burrows 468; and tbs notes thereon in Smith's Leading Cases, Vol 1. p. 80S et seg.) And as to money, meaning bank notes, whioh we oall ourrenoy, bad faith alone will defeat the right of the taker. Here ground of auapioion, or defeot of title, or knowledge of circumstances whioh would create suspioion in the mind of a prudent man, or gross negligence on the part of the taker, will not defeat his title. Bad faith alone will defeat his title.

first Bat. Bank vs Gibert A Clay, 1E3 La 846. So the same effect, see Braman, Negotiable Instrument Law, p, 88, 62, and authorities oited.

We are therefore of opinion that plaintiff was not required, when the note herein sued upon was offered for diaoount by Homan Pruett of the firm of Pruett, Bay A Sttlggs, to inquire of said Pruett whether he had the right, or the consent of his partners, to use the note for his own individual aooount; nor to pursue 'Hie inquiry further If said Pruett had answered that he had suoh right-on aoueenV Aadvitb failure to do so, does not aonviot iti If ."bad faith? -'in taking .vtjMr.mi*,,'

The judgment appealed from in therefore affirmed.


author: Dinkelsplel; J.

text:
    NO. 7965
    .COURT ÓF‘APPEÍit PARISH OF ORLEANS

    HENRY DEMIEN versus YOUNG MEN'S CHRISTIAN ASSOCIATION.
   Dinkelsplel; J.

Plaintiff institutes this suit alleging that the defendant is a corporation created under the laws of this State, conducting a lodging house or inn, operated hy it«in its charge^ and under its management. Plaintiff rented a room from defendant and had been renting for several years prior to the present suit, and for whioh room he paid different prices at different times, and that on January 5th, 1919, plaintiff's room in defendant's building was entered during his absence, and naming artloleo of olothing belonging to him whioh were stolen, together with the sum of Thirty seven dollars in money, through a false key inserted in the door, he plaintiff was robbed of artioles and oash altogether amounting to the sum of $14?.00, for whioh he prayed judgment.

To this petition there was first filed an exception of no cause of action, and subsequently an answer, whioh sets up amongst other thingsjp that defendant was a corporation created and existing under the laws of the State of Louisiana, having its domioile in the olty of Hew Orleans, and alleging further that it does not oonduot a lodging house or inn, in the city of Hew Orleans, faxxpxaxitx but provides a home for oertain of its members who pay a small price for the privilege of residing therein, and any man with a membership oard ass from any Y. 11. 0. A. organization in any other part of the world is entitled to the seme privileges in defendant's association, as are residents of the city of Hew Orleans; and at times the association entertains guests temporarily, who may not be members. Defendant avers further that plaintiff hen has been a member of the association for fifteen years or more, during the past seven or eight years having paid a rental of aaxasxt #7.50 to #10.00 a month, and never paid as alleged by him, the sum of #3.00 per week. Alleging further that on the date stated by plaintiff he had the possession of the key of ■ Ilia room, and defendant denies that any artioles were taken therefrom, exoept by himself or to his knowledge, or by someone for whom defendant was not responsible, or further if they were taken they were not of the value claimed by plaintiff. In addition thereto plaintiff occupied a double room, that is a room with two beds, and had a roommate, and that both the roommate and plaintiff had keys to the room with the knowledge of plaintiff; also alleging that there were posted bulletins throughout the building that defendant would not be responsible for valuables left in the rooms. Wherefore it prayed for judgment in its favor.

On these issues the Bite parties went to trial.

Plaintiff in his testimony so far as the loos of the artioles are concerned and the value thereof, swore to them; he further stated that he had notified the Police Department of the Oity of Hew Orleane of the fact of the robbery, but nothing came of it, he testified further that there was a roommate with him in the same room, who.had a. separate key to the premises, coming and going as he chose; he further testified th-t he was fully aware of the character of the defendant's institution, its objects and everything in reference thereto, having been an inmate in the institution for possibly fifteen ye-^rs or thereabouts.

The other witnesses in his behalf knew little or nothing scfesni further than whet plaintiff himself testified to, so it would be idle to summarize, as we do not consider that their testimony would aid additional support to what plaintiff had already testified to himself.

For the defendant the only witness was Mr. W. 0. Hart, and ire quote from the record:

"I ds3ire to stave that the Y. íí. C. A. waioh is incorporated by the State legislature, under Act 89 of 1873, is a charitable and eieenosynnry institution. It h?s no capital stock, nor stockholders, no member of the organization as such receives any compensation, the only compensation is paid to the employees. Any profits, if there are any, that the aaboci-tion makes from renting rooms out, goes into charitable or eleemosyn-ry work and not for the benefit of any individual or the corporation. So far wee this done that during the world war thousands of soldiers were accommodated, without money, and without prioe, at times as many as five thousand in one day."

In a written opinion hsnded down by the Judge of the Court aquo, in this case, he found:

"This corporation is created by an act of the Legislature of 1873. It is commonly known as a charitable institution and not as a hotel or rooming house, it is so only incidentally, and during ths late military activities it served thousands of soliders, the rentals, if any were for malntainence and not for profit. This was or must have been known to plaintiff and he is now estopped from claiming the relation of innkeeper and guest. He was only entitled to the same protection as other guests in regard to his property, and he.s failed to show any sosive violation of his rights."

In the oa.se recently decided by this court, John Jordan versus Touro Infirmary and Hebrew Benevolent Association, being Ho. 8840 of the dooket of this Court, the syllabus readai

Institutions which furnish hospital accommodations snd medical attendance to different classes of paxsanspsg patients, some for pay and other free of charge, not however for making money or profit, but for benevolent and charitable purposes exclusively, and whose entire receipts ax* or revenue s,re derived for suoh purposes, are not liable even to pay patients for the errors or negligent acts of competent nurses furnished by them to their patient while such nurses are in the operating room assisting the surgeon and under his orders.

Cooley, 2nd Vol. p. 1011-1013.

"But this rule (that is the rule of respondent superior) does not apply to a purely charitable corporation, having no oap-it»l stock and whose members receive no dividends or profits from its operations, and such corporation is not liable for the torts or negleots of Its servants in the performance of their duties."

To this same effect are numerous arthors, amongst them, Parson, Horawetz, and others.

The charter of this defendant shows that it is a ohari-ta’ole institution created by act of the Legislature, Aot 89 of 1872,under the laws of this state relative to the organizations of corporations for religious, literary, and charitable purposes»

The testimony of Mr. Hart shows that the entire revenue from all souroes, paid to defendant, is used for the objects for whioh it v/as organized, all olasses of persons are reoeived and treated and the same services are rendered to inmates free of oharge as to those given to pay inmates.

It has been held that there is no distinction between the liability of a charitable institution towards a charity patient and a pay patient, upon the theory that the pay patient does not pay for any particular service, but rather that he contributes in proportion to his means toward the conduct of its charity and that he is to receive the same madisxxa measure of service as every other patient in the hospital.

Powers vs. Mass. Homeopathio Hospital, 109 Fed. 394; 64 L. R. A. 372.

Yihen an employer derives no benefit from the retention of a hospital fund from its employees, it is liable only for failure to exercise ordinary care to select employees and retain a competent physician.

Congdon vs. La. Saw Mill, 142 La. 212, and numerous authorities cited in the Jordan case, already referred to.

The Civil Code, Art. 3233, referred to by counsel for plaintiff, reading:

"Those aha are called innkeepere, who keep a tavern cr hotel, and make a business of lodging travelers."

Referring particularly to the case of Seward vs. Denechaud, 130 La. 739, in omr opinion has no application to this case, because the defendants are not innkeepers, do not keep a tavern or' hotel, or make a business of lodging travelers.

A oareful examination of the authorities quoted in the Jordan case, and the reasons given by this oourt, oiting numerous authorities from the Supi’eme Court of the united Stabes, end other courts of the highest dignities, in the different states of the Union, prove conclusively that an institution of the character suoh as the defendant la, cannot under circumstances such as given in this record, be held responsible as is claimed by plaintiff in this case.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby affirmed, costs of both courts to be paid by the jSb plaintiff.

-Judgment affiraed-


author: Dinkolapiel; J

text:
    NO. 7995
    OOOR? OF APPEAL PARISH OF ORLEANS.
    SUCCESION OF GEORGE GILMORE
   Dinkolapiel; J

Tha only question presented in this application to the appointment of John Gilmore as Administrator of the Succession of George Gilmore, oomes up on the application and opposition of the surviving widow, to he appointed Administratrix in preference to the applicant, John Gilmore, and this is more or less a question of faot, whether or not the widow was legally married to the deceased.

The testimony in this case, of witnesses residing in the neighborhood, members of the family and others, more or less disinterested, is to the effect that the widow was of Oolored blood, known to be such in the neighborhood where she resided and associations and relations were of the earns ohsraoter and all clroumstanaes surrounding the life of the deoeased, who was a white man, go convincingly to establish the faot that the widow, s.8 stated, was of oolored blood.

It would serve no good purpose to, in detail, oite tha evidenoe in this case. The Judge of the Court aqua in his written reaeons, having seen and heard the witnesses, cays:

"That’ the opponent herein failed in establishing that she was the legally married wife of deoeased, George Gilmore, and that she being of the oolored race, as established by un-impeaohed testimony offered at the trial of this case by applicant, her pxatanadK pretended marriage with said deceaaed produced no oivil effeot and no right to tha administration of his estate.*

The Aot of the Legislature, Ro. 54 of 1894 and Article 94 of the Revised Civil Code of 1870 reads:

"Marriage between persons related to es,oh other in the d&reot ascending or descending line, is prohibited. This prohibition is not/siitSSSiSSS to legitimate children, but extends also to ohildren born out of marriage.

ferriage between whit* persona end persona of cola:: la prohibited end the celebration of all auOh earrlagee la to;;-, bidden and such oelebretlon carries with it no offset and Is null end void.*

In tbe Suooeeslen of Jean Klohel Mlnvlelle, 19 Asan-, 943, the Court bsldi

•A nerrlego celebrated between a free white perooa and a free person of color, in violation of Art. 95 of tbe Civil Code, is an absolute nullity. So suit is needed to de» olare tbe nullity of suah a union. Either party nay disregard it and neither oan pretend to derive iron it any of the eontte» quenaea of a lawful marriage. Bush a marriage stay be attaoked eollartsraiiy and in every form of notion in whiah it is cat up a .ainet either of the parties.*

The widow in this case having died elnoe this ease E. wee decided, her daughter nates herself /east party and opposes the administration, chaining that she had a better right to mat as Administratrix, than the applleatfln this ones.

There is no law that gives thla daugther that right, nor has any been pointed t« out to us.sad the Article of the Civil Code referred to In eounael's brief and the authorities ,in quoted by hip,we do not oonslder In point with this oase»

Tor the reasons assigned, it is ordered, adjudged and decreed that the judgment of the Court aqua be end is h@í?&» by affined, ooete of both Courts to be paid by the üuooeaaioa of Oeorgo Sllnore.

-Judgment affined.


author: CHARLES F. CLAIBORNE, JUBSS.

text:
    Charles ¶. Claiborne, Judge.
    PEARL WIGHT, Receiver & c VS SAMUEL ZEMURRAY.
    No. 8057.
    November 14th, 1921.

   PEARL WIGHT, Receiver & c vs SAMJEL ZEMUHRAY

No. 80J?f.

CHARLES F. CLAIBORNE, JUBSS.

Plaintiff seeks to recover from defendant $228.00 which it avers it refunded to the defendant on the amount of a freight hill on the erroneous belief that it had been an overcharge.

The plaintiff avers that during the months of January to August 7th, 1912 the defendant delivered to it at New Orleans thirty-eight carloads of mixed fruits for shipment to Shreveport and other points in this State according to statements annexed to the petition, upon which the freight and other charges were paid by defendant; that thereafter the defendant made claims for the reimbursement of six dollars on each of the thirty-eight cars, or a total of $228.00 for loading charges, which the defendant alleged petitioner should have"absorbed'yor assumed^or deducted^ from the bill; that

"petitioner, erroneously believing that there existed a freight tariff author!zing -the payment of defendant's claims, when in fact no such tariff existed, paid to defendant in error, the sum of $228 in amounts of $6 each, on the dates and on the cars set forth in detail on the statement hereto annexed and made part hereof and marked Exhibit A ■

Wherefore plaintiff prays for judgment against the defendant for $228.

The citation was served October 31st, 1918.

The defendant pleaded the prescription of one, two, and three years.

The exception was overruled.

On the merits there was judgment for the plaintiff and the defendant has appealed.

The plea of Prescription of two years is based upon Act 223 of 1914,p 421 in the following words:

"That all actions by or against common carriers for the collection or recovery of erroneous freight charges x x x shall be prescribed by two years, said prescription to run from the date of shipment".

In the case of Campbell vs Haverhill, 155 U. S. 610 (618) the Supreme Court said

"that the settled policy of Congress has been to permit rights created by its statutes to be enforced in the manner and subject to the limitations (of prescription) prescribed by the laws of the several States".

The prescription of three years is founded on Article 0. C. 3538 (3503) as follows:

"The following actions are prescribed by three years: xxx that on all other open accounts".

In the suit of Yazoo R. Rd. vs Zemurray, 238 Fed. Rep. 789, the plaintiff sued the defendant for freight; the Circuit Court sustained the plea of prescription of three years.

On the plea of prescription, plaintiff maintains that this is not a suit for freight; but that it is a simple demand for the return of money paid in error, - and therefore prescribed by ten years only.

It is impossible, however, to get away from the fact that the suit is for the recovery of freight money alleged to have been erroneously refunded to the defendant. Whether the freight hue was originally paid or not, and whether the amount paid was refunded or not, the gravamen of the suit is for the recovery or refund of freight money, erroneously paid or erroneously refunded. The same questionSof law and feet arise in this suit which would have been discussed in an original suit for the freight. The reason of the law appl^in both cases. The object of the law is to protect carriers and shippers against stale claims and counter-¿J claims £w freight.¿^The presumption is that after two years the persons, papers^ and other proofs connected' with the shipments and payments of freight would be absent, lost, or destroyed, and that there must be an end to possible litigation concerning questions of freight. As was said by the Supreme Court in the Campbell case above quotgd on page 616 when consignors

"may be fretted by actions brought against them after all their witnesses are dead, and perhaps after all memory of the transaction is lost to them".-,

In support of his claim on the merits, the plaintiff, in his brief, quotes a formidable array of authorities from State and Federal Court affirming the following propositions of law: lo that the carrier may sue either the consignor or the consignee for freight charges; 2o that it is made the duty of the Railroad under Federal statutes to collect all undercharges; 3o that the consignor is primarily liable for freight charges. Conceding all these propositions to be good law, we fail to preceive what application they have to this case if it is one merely to recover money paid in error. It is not possible that the case should be one for the recovery of money paid in error, for the purposes of tne prescription pleaded, and one for the collection of freight charges on the merits. We therefore conclude that this suit is one for the recovery of the balance of frei^it claimed to be due, and as such prescribed by two years.

It is therefore ordered that the judgment herein be reversed, and that the exception of prescription of two and three years be sustained, and that there now be judgnent in favor of defendant dismissing plaintiff's demand - at its cost in both Courtfe.

Hovember 14th, 1921.


author:
CHARLES F. CLAIBORNE, JUDGE.
      BY: WILLIAM A. BELL, JUDGE:

text:
    Charles F. Claiborne, Judge.
    FRANCIS J. SCHROEDER VS. THE AMALGAMATED ASS'N. OF STREET AND ELECTRIC RY. EMPLOYEES & al., Appellants.
    No. 8065.
    November 28th, 1921.

   FRANCIS J. SCHROEDER VS. AMALGAMATED ASS'N. OF STREET AND ELECTRIC RY EMPLOYEES & al„ Appellants.

No. 8065,

CHARLES F. CLAIBORNE, JUDGE.

The plaintiff claims a death benefit from the defendant Association and from Local Division Number 194 thereof.

He avers that Clarence J. Schroeder became a member of Local Division Number 194 of the Amalgamated Association of Street & Electric Railway Employees of America more than three years prior to January 20th, 1918, and continued as such up to the time of his death; that by virtue of said membership he became a member of said Amalgamated Association of Street and Electric Railway Employees; that thoring August 1917 said Clarence J. Schroeder v olunteered in the naval service of the United •States; that in October 1917 he paid his dues for September and October 1917 to said Association and tendered his monthly dues for November 1917 to the Local Financial Secretary of said Associations

"who refused to accept the same stating that Clarence J. Schroeder would be maintained a member in good standing of both said corporations, without payment of dues, and without charge until discharged from the naval service of the United States";

that the said Clarence J. Schroeder died at Yorktown, Virginia, on January 20th, 1918; that the Amalgamated Association of Street and Electric Railway Employees pays a fundral benefit of $800.00 and the Local Division 194 $200.00 upon the death of one of its members, to the.legatee of the deceased who has been a member for more than three years¡ that the said Clarenoe J. Sohroeder left a testament by whioh he donated his death benefits to petitioner Franois J. Sohroeder whioh said Associations refuse to pay notwithstanding demand.

The defendant, the Amalgamated Assooiatio^denied that Clarenoe J. Sohroeder at the time of his death was a member in good standing as required by Seotion 92 of the By-Laws of said Association; that said Seotion reads as follows;

"No death or disability claim shall be allowed or paid to a member or any benefioiariea of members whose death or disability has been oaueed while on duty as a soldier, volunteer militiaman, policemen or City fireman, or to any member being injured or killed while engaged in any other line of employment, except that of street and eleotrio railway work in some department where the member is eligible to membership under this Constitution end the laws of this Association".

Defendant further alleged that under said seotion excluding a member "while on duty as a soldier", plaintiff's petition disolosed no uause of aotion.

The trial Judge was of opinion that the defense failed because the deoeased member was neither

"a soldier, a volunteer militiaman, a policeman, or a fireman, and seoond that he was killed at all, but died of disease",

and he rendered judgment in favor of the plaintiff.

The defendants appealed.

Mary Yoakum, an aunt of Clarenoe Sohroeder testified, that she paid his dues in Ootober 1917, and after they had received her money they told her that if anything happened to him in the servios, it was up to Uncle Sam to look out, that they oould not do anything for her; 'that they would refuse to take the money hereafter, and when he returned his position would be there; that they explained, to her, that if death occurred while he was in the United States Naval service, that she would not receive any benefit from the Association, but that Uncle Sam would have to look out for her from the insurance for the United States Marines.

It was admitted that Clarence J. Schroeder was initiated a member of the defendant Association on December 1st, 1915; that he volunteered in the Naval Service of the United States on May 23d, 1917; that he fell sick on the U. S. Ship Minnesota, in Yorktown, Virginia in January 1918, and that he died there of appendicitis on January 20th, 1918.

Gus B. Bienvenu, Secretary of Division No. 194 testified that when Mrs. Yoakum came to pajj^ae^duesjie ^

"explained to the lady that he^ould 'p&vb to be square on the books of the Association, and that he would not have to pay any more dues until he returned from the military service; that he was carried the same as a withdrawn member, and, in that event, if anything was to happen to him while he was under the jurisdiction of Uncle Sam, it would be up to Uncle Sam, but when he returned, that he had his same seniority rights and his age in the organization, it was passed at our last convention";

the witness was shown a notice from the National President, dated October 10th, 1917, relative to a Resolution which was adopted at the Providence Convention in 1917; he was asked whether he received it; he answered yea, and said that he was positively acting under it; he explained this notice to Mrs. Yoakum and

"the other portions of our laws which have been there ever since we have been instituted in regard to men that were in the military service, hold no rigdit, and are not entitled to benefits rn the organization".

Section 92 of the By-Laws is not free from obscurity. We interpret it however to mean that no death claim shall be paid to the beneficiaiy of any member whose death has been caused, by any agency or under any circumstances, while performing the duties of a soldier, and other dangerous occupations mentioned, nor shall any member be entitled to a benefit who shall have been injured or killed while en^,ged in any other line of employment than that of street and electrical railway work. In simpler words, a member forfeits benefits absolutely while on duty as a soldier, while he forfeits during employment otherwise than in railway work only if he be injured or killed in that other employment. According to that interpretation Clarence J. Schroeder forfeits his rights to all benefits if the word "soldier" covers engagement in the "navy". We think it does, within the meaning^ intent, and purpose of Sec. 92 quoted above and of the Resolution to which we shall allude below.

The Civil Code lays down rules for the interpretation of laws and contracts.

Art. 18 (18)

"The universal and most effectual way of discussing the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it".

Art. 1950 (1945)

"When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than adhere to the literal sense of the terms".

Art. 1956 (.1951)

'"When the intent of the parties is doubtful,the construction put upon it, by the manner in which it has heon executed by both, or by one with the express or implied assent of the other, furnishes a rule for. its interpretation".

Guided by these lights we must inquire what was the spirit and reason of Section 92. It was evidently because the occupation of soldier, militiaman, policeman, or fireman, was too hazardous to justify the Association to keep upon its rolls, as members in good standings persons thus engaged. It was to exclude members engaged in war. It was evident that the Association could not assume such risks, which, in time of war, might have wrecked its finances in a short time. Nor is it a strained construction to say that a man engaged in the navy is a "soldier". The Century Dictionary, among othe^/definitions of the word "soldier" says!

"A person in military service. One whose business is warfare, as opposed to a civilian".

137 U. S. 147.

The oase of Abrams vs Bartlett, 18 Iowa 513 seems to be against that construction.

In that case the question was whether one who was acting master in the navy of the United States was protected by a statute which exempted from seizure

"any property of any soldier in the actual military servios of the United States."

The Court said that one in "the naval service" was not in "the military servioe". The words "military service",in their opinion, thus aooentuated, ■‘^eluded "naval- service". On the other hand it has been held that

"the militarynesources of a country inolude both amy and navy, and the phrase "military Office" has been legally oonstrued to apply to both".

Century Dictionary Vo. Military - 5 C. J. 294.

The "Michigan Soldiers' Home" was created to receive all discharged soldiers, sailors, and marines» 148 N. W. 220.

The intention of the By-Laws and the construction put upon them by the parties in interest are equally in support of the interpretation that by the word "soldier"^embraced all those who mififrt engage. in war?

h. Convention of the Amalgamated Association of Street and Electric Hallway Employees of America, held at Providence, R, I. on September 10th, to 18th, 1917, the following Resolution was adopted:

"That the International Association shall assume the back per capita and place the members in good standing in respect to death, disability and old age benefits upon their return from war-service: liability of the Association for said benefits to be governed by that section of the Constitution that provides that during said service, said members shall be non-beneficial, Neither shall benefits derive from injury sustained or impairment of health from or during said war service. Further, said member, upon return from said war or military service, and before assumption of liability for benefits by the Association, shall be subject to physical examination to establish the fact of existence of a condition of health to meet the requirements of new members entering the Association as provided by the Section of the Constitution providing therefor. Such member shall then be placed in good standing with continuity of good standing from first entrance into aan-bership, and shall be returned to his full seniority in replacement in employment, the same as though of no elapse of time in military service".

It will be observed that during the discussion that preceded the adoption of this Resolution no one disputed the truth of the declaration therein contained that

"liability of the Association for said benefits to be governed by that section of the Constitution that provides that during said service (war-service) said members shall be non-beneficial".

Nor lias there been any suggestion made that the Convention lacked the authority to adopt the Resolution or that it was not the law of the Association from the date of its adoption.

Clarence J. Schroeder, through his representative, was informed in October 1917 of the adoption of this Resolution, the dues that he offered to pay as a member in good standing were refused, and he was told that if anything happened to him while in service, he would receive no benefit.

The judgnent herein is therefore reversed, and it is now ordered that there be judgnent in favor of the defendants, and that the plaintiff's demand be rejected at his cost in both Courts.

November 28th, 1921.

NO. 8065

COURT OF APPEAL PARISH OF ORLEANS

FRANCIS J. SCHROEDER,versus AMALGAMATED ASSOCIATION OF STREET & ELECTRIC RAILWAY EMPLOYEES OF AMERICA

APPEAL FROM THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS , DIVISION "A,” H.C. CAGE, JUDGE.

OB SECOND APPII CATION FOR -RE-HEARING

DISSENTING OPINION OF JUDGE WM.A.BELL to the JUDGMENT OF THIS COURT DENYING SECOND APPLICATION FOR RE-HEARING.

BY: WILLIAM A. BELL, JUDGE:

I respectfully dissent from the Judgment of thi Court herein rendered this day, «hereby a second application for re-hearing has been denied for the reasons that I am of the opinion that the Judgment of this court rendered on the 27th day of February, 1922, reinstating the Judgment of the Court rendered on the 3 g day of t , was null and'void. My oonolusions to this effect are based upon the fact that the legal result of the former granting of a re-hearing in this oase tos to suspend or wholly set aside the original Judgment of this Court, which reversed the judgment of the Court a qua, until the rendition of a concurrent Judgment on re-hearing by at least two Judges of this Court, each of whom will have heard and tried this oause de novo on re-hearing. The Court in this oase is bound of its own motion, to take cognizance of the following facts:

1st. That on theS’i' day of192/ , the unanimous Judgment of the Court, then consisting of Judges St. Paul, Claiborne, and Dinkelspiel, resulted in reversal of the Judgment of the trial Court.

2nd. That on Vas/0 day of,<$-<i4w£j.92/ , motion for re-hearing was filed by the plaintiff, appellee herein, and re-hearing granted on thejZ day otju*****-*-^ 192’Z..

3rd. That Hon. John St. Paul, having been elected and having, on the 2. day of‘//.^»«<~^1922, qualified as an Associate Justloe of the Supreme Court of'Louisiana, a va-oanoy in this Court was thus created.

4th. That on the 16th day of January, 1932, the aforesaid vacancy in this Court was filled by virtue of the qualification of Wta. A. Bell, appointed by the Governor of Louisiana to suooeed Judge St. Paul.

6th. That from January 16, 1922, to ^ 1922, Hon. Chas. F. Claiborne, the presiding Judge of this Court, was absent and unable to serve because of temporary illness

6th. That during Judge Claiborne's illness, this oase, being duly dooketed, was ordered before Judges Dinkelspiel and Bell, and duly submitted, when, after consultation and due oonsideration of the oase on re-hearing, Judge Dinkelspiel adhered to the former ¡Judgment of this Court, while Judge Bell was of the opinion that same was oontrary to the law and to the evldenoe as disclosed by the record, and that the original judgment of the Court a qua, should be affirmed.

Considering the foregoing faots, and the law applicable thereto, I am of the opinion that Judge Claiborne, for reasons above set forth, was not qualified to participate in the judgment herein rendered on the 27th of February, 1922, and that in lieu of said judgment, the Court should have rendered, er proprio motu, an order directing another re-hearing of the oase so that at least two, if not all of the three Judges of this Court, after consideration of the oase on second re-hearing, oould have rendered a judgment as required by Art. YII., Seo. 26 -. Constitution 1921.

"'he judgment of a Court on rehearing, which either reinstates or else reverses or qualifies its former judgment, can in no manner be considered as an interlocutory ruling or order, but is a judgment of equal import as the original judgment, and in effect fully and finally determines the litigated issues Involved.

For these reasons, believing that there has been no legal judgment, as yet, rendered by this Court, which has, or oould have in effect, reinstated the judgment herein rendered I am therefore of the opinion that a second re-hearing should be granted.


author: CHAELES F. CLAIBOENE, JUDGE.

text:
    LEO FELLMAN VS MRS. ISABEL SMITH
    No. 8068

   CHAELES F. CLAIBOENE, JUDGE.

On Rehearing.

In our original opinion we maintained the exception-of no cause of action on the ground that notwithstanding the «lause in the contract

*«ubjoot to Homestead Loan *15,000.00*

yet

•there was nothing in the petition which averred that defendant failed in any my to comply with the conditions of the contract, or that she had made no endeavor to do so. The allegations of the entire petition fail to state this fact, and to our mindB, this is fatal to plaintiff's cause".

But upon the application'for a rehearing the plaintiff calls our attention to the fact that hd does not pitch his case altogether upon that clause of the contract, but also upon the. allegation that the defendant-» independently of said clause, had changed her mind, and with the consent of the vendor agreed to cancel the contract of sale. The allegations of his petition are:

"That the said Mrs. Isabel Smith thereupon expressed an unwillingness to comply with the tenas of said agreement x x and requested Mrs. Baldwin -to release her thereunder; and that the said Mrs. Baldwin x x released Mrs. Smith from her obligations undeie said contract to purchase the residence".

Without expressing any opinion as to the liability of the defendant if the above allegations are proven, and of the circumstances which brought about the cancellation of the contract, we are of the opinion that the plaintiff is entitled to have all the facts of his case submitted to the Court end his rights thereunder adjudicated.

October 31st, 1921.

It is therefore ordered that our previous decree herein be set aside, and that the judgment of the District Court maintaining the exceptions herein be avoided and set aside, and that this case be remanded for further proceedings according to law.

Judgnent reversed and case remanded.


author: Dinkalspiel! J,

text:
    NO. 8080
    COURT OF APPEAL PARISH OF ORLEANS.
    A. MARX & SONS versus JOHNSON IRON WORKS LTD.

   Dinkalspiel! J,

This suit involves the question, whether or not plaintiff bought from the defendant, the steam yaoht oalled the Huntress, and defendant failing to deliver, if they are responsible for damages; the allegations being that defendant did on or about February 13th, 1919, oommenoe negotiations with plaintiff looking to the sale Of the yaoht Huntress, for a certain prioe, without disclosing the name of the prinoipal to whom the yaoht belonged, and that plaintiff brought said yaoht and failing to receive his property has brought this suit for damages, claiming the sum of Fifteen Hundred Dollars.

The answer substantially, whilst admitting the writing of oertaln letters referred to in plaintiff's petition and admitting that defendants offered at one time to sell to plaintiff, the launch Huntress, for the sum of Five Hundred Dollars, being by letter dated February S4th, 1919, but that said offer was expressly conditioned upon prompt aoceptanoe and averring further that said offer was not promptly accepted, the offer cancelled and there was no actual acceptance of the offer; defendant denies the alleged value put by plaintiff on said yaoht and asserts that no matter what the value may have been, they are not responsible to plaintiff as they, plaintiff, did not acoept the offer when tendered.

Looking at the correspondence between these parties we find a telegram from the owner, James Deitrlok, dated New York, February 4th, 1919, addressed to Warren Johnson, Manager Johnson Iron Works, which reads:

"Yours 30th Just received, please secure customer for Huntress if possible, if no customer authorize you sell at best advantage to Junk dealers."
February 13th, 1919, there follows this letter.
"A. Marx & Sons,
643 Tohoupitoulas Street,
New Orleans, La.
Dear Sirs:-
We have what is left of a 90 ft. steam launch in the river moored at our Algiers wharf. It came from the Naval Station and is for sale.
Would you look at it and make us an offer on same.
Very truly yours,
THE' JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey
Superintendent."

We find further the answer to this letter, addressed to the Johnson Iron Works, Ltd., New Orleans, La.

"Gentlemen:—
Your communication of the 13th received. One of our representatives will call on your Mr. Geo. Koffskey within fiext few days to look over your Launch for sale, and will submit you proposition on same.
Yours truly,"

This letter was followed by a letter addressed to Johnson Iron Works, Algiers, La.

"Gentlemen:-
Confirming conversation with your Sir. KofBky this morning we can offer you $500.00 for the steam yacht Huhtress which is moored near your dock and which our Mr. Hunt inspected yesterday.
This offer is made with an understanding that all the parts necessary to the operation of the boat are with it excepting the wheel and compass which we understand are missing. In other words just what was seen and inspected by Mr. Hunt is covered in this offer.
Trusting that your principal will see fit to aocept it. We are,
Yours very truly,"

On the 34th of February, 1919, defendant wrot to plaintiff as follows:

"Mr. Maurice F. Hunt, Gen'l Manager,
A. Marx & Sons, Machinery Department,
1645 Tchoupitoulas Street,
New Orleans, La.
Dear Sir:-
Yours of the 30th reoeived as regards the Steam Launch "Huntress", saying with an understanding that all parts necessary to the operation of the boat are with it excepting the wheel and compass.
Now as a matter of fact, We have never had an inventory made of the parts not considering it necessary for economy.
If you take the boat as it lays, without the ropes that tie her to our wharf, you are welcome to it for $500.CO cash.
Please advise promptly*
Very truly yours,
THE JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey, Superintendent."

Maroh 35th, 1919, we find a letter addressed to Mr. Maurice F. Hunt, Manager, A. Marx & Sons.

"Your offer o.f $500.00 for launch "Huntress” was not aooepted and furthermore the owner arrived in the City last even- ■ ing from Hew York and at 5:00 PM had the Huntress taken from our wharf to the New Orleans Pry Book. He sold the boat to someone else.
Sorry but oould not be ohanged.
Yery truly yours,
THE JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey
Superintendent.”

And to this letter plaintiff wrote the following reply the next day, the 36th of Maroh, addressed to the Johnson Iron V/orks.

"We have just reoeived your letter of the 35th advising us that the owner has not aooepted our "offer" of $500.00 for the launoh "Huntress" and that he has sold the boat to someone else.
We beg to advise you that we made no "offer" for the purohase of this boat at $500.00. We have a oontraot for the purchase of this boat for $500.00 oonfirmed to you by our letter of Karoh 18th. We oannot aooept the cancellation of this oontraot on Maroh 36th. In as muoh as'you aoted for an undisclosed principal you would be responsible. We think you should bring this home immediately to the owner because he, of oourse is likewise responsible and by so doing you will proteot yourself.
We are writing this letter in duplioate, and ask that you kindly sign and return one oopy to bearer.
Yours truly?

There are several other letters in oonneotion with this matter but none, of themselves sufficiently important to in any wise bear on the result.

We have oarefully examined all the testimony in this oase.

The first witness,one of the plaintiffs, Mr. Edward Marx knows nothing about this oase exoept what his Manager, Mr. Hunt advised him, and sometime subsequent going on the boat to make an examination to asoertain the value.

Mr. Hunt testifies quite at length, giving hie oonneotion and his duties with plaintiff, identifying the various letters that we have quoted; he swears that he represented plaintiff in the dealings with the defendant in this oase and also testifies to a telephonic conversation that he had with Mr. Koffskey, Superintendent of SsfadnsHt defendant's works and amongst other things says "an after considering the boat I wanted to know if it was still in taot or if anything had been removed from the ■boat as It was In the original state when we first started to e&. amine it, he said nothing had been removed, it was exaotly as it was some two week# before, then X asked him what he thought of the vessel, he said X think its a very good buy, its a bargain, when asked what the oost of reapirs would be Mr. Koffskey replied that he oould not say as to that, X asked him if he oould still have the vessel for $500.00, the prioe he had stated to me, he said yes, you oan have it for $500.00, I said X will write today and oonflrm it"; and then goes on to testify about storing the boat and what arrangements he oould make and that Mr. Koffskey answered "X would have nothing in the world to do with that"and also that he had made photographs of the vessel, further that he hod offered this boat to Mr. Sohwartz for $3500.00 and that Mr. Sohwartz finally agreed to pay him $1500.00, further testified about the vessel being removed and by whose authority and when he was told the name of the owner, he had' never heard of it and it had never been mentioned prior to this time, he also spoke of the value of the vessel, what it oould be sold for. Doubtless his fsaickixjsiiias familiarity and his axperienoe entitles his testimony in that regard to great weight.

On Oross examination.

Q, Ms. Hunt, you reoeived this letter whioh is marked P6 and was written February 34th, 1919, about the date it was written os a day or two later did'nt you?
A. Yes eir.
Q, That was after you had inspeoted the vessel, wasn't it?
A, Yes; after my first visit to the vessel.
Q. And you never aoted on this offer to sell the Huntress for $500.00 until Masoh 18th?
A, Ho, X didn't aooept the offer until then.

Tho other witnesses, without naming them simply give their opinion as to the value of the vessel.

The witnesses summoned on behalf of defendant were Warren Johnson, X, D, lloHair, G, M. Graoe and George Koffskey.

The witness Koffskey, after stating Ms position with the defendant as general Superintendent and giving the time he was oonneoted with the oompany, forty six years, says:

Q. Do you remember a conversation you had over the phone with a Mr. Hunt, of A. Marx & Sons, on Maioh 18, 1919, relative to the sale of the yacht Huntress?
A. Well, Mr. Hunt was on the phone. X don't hear very well on the phone, and I called Mr. Graoe to say what was to he said.
Q. Then what happened.?
A. Mr. Graoe spoke about the boat, about the $500,00 and I told Mr. Grace to tell him before we oould sell the boat to him X would notify Mr. Warren Johnson who would get in touoh with Mr. Dietrioh being as Mr. Hunt had spoken about a bill of sale, or something.
Q. Did that close the conversation?
A. That was the whole conversation.
Q. Did you tell Mr. Graoe to tell Mr. Hunt he oould have the boat for $500.00?
A. $500.00 oash, but when he asked for a bill of sale that made a difference, and I told Mr. Graoe at the time to tell him that it would be referred to Mr. Warren Johnson, the manager, and he in turn would get in touoh with Mr. Dietrioh, the party that sent the boat there from the naval station.
Q. (at page 15) Did you ever make a oontraot to.sell the Huntress to A. Marx & Sons for $500.00?
A. Hever. I just communicated with three Of the junk men by letter, and received no letter, until some time after, and I think Mr. Hunt came to the shop to see what was on the boat, and I sent him to one of the men on the outside, outside foreman, I doroit know whether Mr. Amrstrong or Mr. Roup, at the time they were working on the wood ships, installing the machinery. After that I heard nothing more, except about Mr. Hunt phoning there, add then I got Mr. Graoe on the telephone.

On Cross examination.

Q. Mr. Koffskey, in that conversation over the telephone did you not either say yourself, or have Mr. Qraoe eay, that the boat oould he purohased for $500.00 oash?
A. We offered the boat for $500.00 oash, yes, sir.
Q. Tou renewed that offer in the telephone conversation?
A. We offered that by oommunioation, a letter.
Q. Didn't you do it also in this telephone conversation, telling him he oould have it for $500.00 oash?
A. Hot that I remember.
Q. (page 16) X show you letter dated Maroh 18, 1919, already introduced in evidence as P-6, and ash you if you received the original of that letter?
A. I never sold the boat.

"The sale was not made beoause questions had to be asked outside." Mr. Grace, a witness on behalf of the defendant and referred to by Mr. Koffskey as the man he employed, not hearing well, to go to the telephone and receive and answer communications, after stating his position with the defendant of the Company, says:

Q. Do you remember anything about a oonversation over the telephone between Mr. Koffskey, the manager of the Johnson Iron Works and Mr. Hunt, of A. Marx & Sons, on Maroh 18, 1919, relative to the sale of the Yacht Huntress?
A. Mr. Koffskey, the superintendent. I think it was the 17th or 18th of Maroh that he buzzed to me, calling me from the offioe. When he got a telephone call he generally called me in, for anything like that, beoause he don't hear distinctly. He handed me the phone and said "Marx is on the phone," and he told me to tell them that the $500.00 offer would'nt be accepted until they submitted it to Mr. Warren Johnson, who would submit it to the principal. And there was also something about a bill of sale, that they had to have a bill of sale, they asked for it, and they told him they would have to get that. They didn't know anything about that.
Q. (at page 10) What was done with the offer of $500.00?
A, Mr. Koffskey wrote me a note to hand to Mr. Johnson when he oame In. He didn't oome that evening. X put it on hie desk. Next day he diotated a telegram to Mr. Dietrioh, at Hew York, telling him what Marx had' offered for the boat.

And then this witness testifies that "In the latter part of Maroh, on the 25th or 36th, Mr. Dietrioh, the owner, walked Into the of-fioe about 6 o'olook when nearly everybody had left but Mr. Wilmer Johnson and X. He saw Mr. Johnson and Mr. Johnson oalled me and told me Mr. Deitrloh was there to take the Huntress, and if it had been sold, and X told him no, and he asked why X said no. X said I had the oorrespondenoe and I had followed the oase up, handling it for Mr. Koffskey.

Then the witness goes on and relates the taking of Xhii of possession of the Huntress by the owner and telephoning Mr. Hunt the next day to that effeot.

Q, What did he say?
A. Didn't say anything; hung up the phone.

We have thus quoted from portions of the testimony of the witnesses in this oase, which we considered material to this decision and we find that neither in lawmr in faot was there an absolute sale of the yaoht Huntress to plaintiff by defendant; there were undoubtedly negotiations between these parties but in our opinion they oame to no conclusion.

Art; 1797. COÍJSMT; COMMOTIO ATIOIT OK. "When the parties have the legal oapaoity tafig to form a oontraot, the next requisite to its validity is their consent. This being a mxaxa mere operation of the mind, can have no effeot, unless it be evinced in some manner that shall oause it to be understood by the other parties to the oontraot. To prevent error in this essential point, the law establishes, by oertain rules adapted to the nature of the oontraot, what oiroumstanoes shall be wvidenoe of suoh consent, and how those oiroumstanoes shall be proved; these oome within the purview of the law of evidence, “

Ait. 1798. Proposal and Acceptance. "As there mast be two parties at least to every oontract, so there must be something proposed by one and accepted and agreed to by another to form the patter of such oontract; the will of both parties must unite on the same point."

In the oase of Holtzman vs. Millaudon, cited in the 18 Annual at page 39, the syllabus reads:

"A legal agreement is a concurrence of two minds upon the objeot and consideration of a oontract. The will of both parties must unite on the same point.
A olaimant must establish his claim with legal certainty. It is not enough that he make it probable."

Also see Reinecke vs. Bernhardt, 13 Court of Appeal Reports, p. 57.

We might go on to oite numerous authorities to the same effect, but we deem it unnecessary.

What we have quoted at length from the testimony of the witnesses in this case does not to our minds satisfy the law in reference .to sales ' afcsi8&xS8»SBX8»M8X»sa«*»xth±sxi3E:cax£ and under these circumstances we conclude that the judgment of the Lower Court is oorreot.

For the reasons assigned it is hereby ordered, adjudged and deoreed that the judgment of the Court aquo be and the same is hereby affirmed and costs of both Courts to be paid by plaintiff.

—Judgment Affirmed—


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    Charles I. Claiborne, Judge.
    LOUIS J. BRIGHT VS PRODUCE & WARRANT CO., INC.
    No. 8095.
    October 17th, 1921.

   LOUIS J. BRIGHT VS PRODUCE & WARRANT CO., INC.

No. 8095

CHARLES P. CLAIBORNE, JUDGE.

This is a damage suit brought by a purchaser against his vendor for failure to deliver the thing sold.

The plaintiff entered inté the following contract with the defendant:

New Orleans,May 21st,1919
Sold for account of:
Produce & Warrant Co., Inc.,
New York
To Mr. Louis J. Bright,
New Orleans, Aa.
About two hundred Pifty (250) bags of Santos Coffee grading 4 - 5's at twenty-three and one-half cents (23tc) per-pound. Shipment of A. Perreira & Co., Santos,- advised per S/S "Sumatra Mam" to New Orleans - Described as - Good Bean - Good Roasters - soft - Terns: Ex ship - cash leas 2% in 10 days from average - date of weight certificate - sound and made sound - Brazil Gradings - No Arrival - No Sale - Any import duty, internal-revenue or any other tax imposed by the United States Government on this coffee is for account of buyer.
Signed: Produce- & Warrant Co., Inc..
New York Agency
Signed: J. Maes, Agent
Accepted: Louis J.. Bri^it
Brokers! .Produce. & Warrant-Co. tii ^

The defendant afterwards addressed ■"'to' the-plaintiff the fold owing letter:

"Produce & Warrant Co
New York Agency
78-80 Wall Street
Coffee Department
Hew York, July 22nd,„•1919
Hr. Louis.J. Bright,
Hew Orleans, La.
Gentlemen:’ We understand from a cablegram received that Messrs A. Yorréira & Co., Santos, have shipped or intend to ship as follows for your account:
Vessel S/S Raifuku Ham - Quantity 250 Bags -..Grade 4 - 5's - Price 23&/ r Purchase date May 21st.,.-
Yours truly,
Produce & Warrant Co., Inc¿,
New York Agency
Signed Y. Glanesmay
Subject to Correction".

Later on, the defendant sent the following notice to the plaintiff:

"Produce & Warrant Co., Inc.,
Hew York Agency
73-30 Wall Street
Arrival Notice
New York, July 31st, 1919
Messrs.Louis J. Bright
New Orleans, La.
Dear Sirs: Please note arrival per S.S. IMfUku Man? 250 Bags of coffee against vour contract of May 21.
As soon as we receive further particulars we will notify you.
Yours very truly,
Produce &-Warrant Coi, Indv *"S&#ak

The defendáh’í”theft sen» ms mTb"«ffg*Invrf!ws W> the plaintiff:

"Produce & Warrant Co., Inc.
New York Agency
78-80 Wall Street
Coffee Department
New York City,August 4th, 1919
Proforma
To Mr. Louis J. Bright
New Orleans, La.
Terms: Contract May 21st, 1919. Cash less 2# in 10 days from average date of weight return - Payable in New York Exchange only - 250 Bag3 of Santos Coffee arrived at Raifucu Kara, Tent 240 - Weighing net about 32500 lbs. @ 23^, $7637.50".

The Raifuku Mam arrived in New'Orleans on July 31st, 1919. According to its manifest, it carried 4000 bags of coffee shipped by A. Ferreira & Co. to the defendant, and marked P W C -A- B. The defendant refused to deliver any part of that coffee to'the plaintiff. Hence this suit. The question to be decided is, was it the duty of the defendant to have delivered to the plaintiff 250 bags out of that lot of 4000?

The defense is that' the defendant had a contract with A. C. Israel of New York to deliver to him 4000 bags of coffee, and that he was under obligation to deliver to him the 4000 bags which arrixed on board the Raifuku Mam that said bags belonged to A. C. Israel and that no oart of them belonged to the plaintiff.

The contract with A. C. Israel is in the following words:

"New York, May 20th, 1919
Sold for account of Produce & Warrant Co., N. Y.
To A. C. Israel N. Y.
About Four Thousand (4000) bags of coffee. Sound and damaged portion, shipped or to bo shipped from Sontos to Hew Orleans, Shipner.t prompt eto. etc."

'He construe the contract sued on to mean that the defendant had sold to the plaintiff 250 bags of coffee already shipped or to be shipped to the defendant by A. Ferreira & Co. on board -„he ship Sumatra 'lam, or on any ship substituted in its place. 7/e are confirmed in this construction by the documents emanating from the defendant itself - end which we have copied hereinabove. The first letter from the defendant advises the plaintiff that it

"understands from a cablegram received that Messrs* A. Ferreira & Co., Sontos, have shipped or intend to ship as follows for your account (plaintiff's): Vessel. S/S Raifuku Ham - quantity 250 bags - grade 4 -5s Price 23£- - purchase, date May 21st."

The next- letter dated July 31st, 1919 from,.the defendant advises the plaintiff of the arrival 'of the

"Raifuku Mam with 250 bags of coffee against his contract of May 21st."

The third document is an invoice of defendant against plaintiff for

"250 bags of Santo3 Coffee arrived at Raifucu Mam, Vent 240 - & c ".

These letters show conclusively that the defendant understood that the 250 bags of coffee tohioh they had sold to the plaintiff were on board the ship Raifuku and that they were'Obligated to deliver them to him, and that he was.bound to receive them. Hence these notices. The defense that the 4000 bags on board the Raifuku were the property of A.>C..'I,sra^li or that the defendant was bound to deliver theft to rhinv■ does' .- not seem to us to have any merit. The 40.00 bags .were not1-the property of Israel, nor could he have claimed them'.’in .execution .of his contract. If the defendant delivered' them .tqr-Tsi’afelV it was because he chose to do so. It must be observed that the contract \ras not for the definite number of 4000, but only for "about" 4000 bails', and that a delivery for a less number would have satisfied me contract. Neither did the contract designate the-name of the ship jipon which the coffee was to be shipped, nor the time within which it was to be shipped. A partial shipment upon the Haifuku, and the balance upon the following ship, would have met the letter of the contract. As to Israel, the condition of the contract:

"Mo arrival, No Sale"

would have protected defsndants. But plaintiff's contract designated the ship, and a quantity sufficient to fill Ms-contract arrived on board the ship. Defendant was therefore hound to fulfil his contract with plaintiff out of that ooffeo; he chose to give Israel the preference, he .must 3tand the consequences,

7,re agree with defendants' counsel that having arrived at the conclusion that the ship and the coffee arrived, there i3 no necessity for us to interpret the words:

"No Arrival, No.Sale".

Plaintiff bought his ooffeo at 23--V cents per pound; the same coffee was worth on July ?lsfc. 29-£ cent3. Plaintiff's loss was therefore 5f cents a pound. Plaintiff claims that the 250 bags weighed 3-1,000 pounds or 132 pounds por bag. Defendant's' bill states the "net" weight at 32,500 pounds, or 130.pounds per bag. V/c prefer to judge the defendant by their own admission. By that woi^it plaintiff's loss is $1060.75.

'Then a vendor fails to deliver the thing he has sold, he owes to the purchaser, as damages, the difference between the contract price and the market price of the thing on the day delivery should have been made. C. C. 2486 (2462); 2458 (2433). 6 E. 553; 13 La. 225; 3 A. 45; 140; 6 A. 491, 760; 14 A. 788; 20 A. 291; 29 A. 286; 36 A. 425; 111 La. 387 (394); 115 La.829: 127 La. 350, 357; 146 La. 5, 296; 35 Cyc 633 (c); 124 U.S.64 (73); 0. N. 1611; 43 Palios Hep. Leg. p 191 &-698; Poithier Vents p. 33§72¡;'l Trop. Venta.& 301.

Tho> judgment la reduced from one thousand, sight hundred and ninety-seven 50A00 dollars to one thousand, eight hundred and sixty-ad^ht 75A00 dollars, and, as thus amended, it is affirmed, the costs of appeal to be paid by plaintiff and appelleo.

Judgment amended and affirmed.

October 17th, 1921.


author: CHARLES F. CUIBOHNE, JDBGE.

text:
    Charles F. Claiborne, Judge
    COMMERCIAL TRUST & SAVINGS BANK, Tutor & c VS WIDOW EMILE THORENGREN & al, Appellants.
    No. 8097.
    November 14th, 1921.

   COMMERCIAL TRUST & SAVINGS BANK, Tutor & c vs TOOT EMILE THORENGREN & al, Amellarás.

No. 8097.

CHARLES F. CUIBOHNE, JDBGE.

This is a suit to have the wife and her heirs declared the separate owners of property purchased during the community.

Emile Thorengren married Odelle Borda in July 1901; hy anact Before Felix J. Dreyfous, Notary, dated March 5th, 1906, Vicellio sold

"unto Mrs. Odelle Borda, wife of Mr. Emile Thorengren, here present accepting; and purchasing with the author-isation of her said husband, who is also present"

the property in controversy on First Street; the sale was made for

"the price of $1400 cash, which the purchaser has presently paid to the vendor, who acknowledges the receipt thereof and grants acquittance and discharge for the same".

The act is signed hy 'the wife and by the husband.

The act does not declare that the wife purchased the property as her separate and paraphernal property, -nor that she pays the price with her separate and paraphernal funds under her separate administration.

Odelle Borda, wife of Emile Thorengren, died in November 1912, leaving three children issue of her marriage with Thorengren, to whom the plaintiff herein was appointed dative tutor.

Emile Thorengren contracted a second marriage on June 28th, 1913 with Kate __he died in 1917, leaving as only heirs his three children above named, issue of his marriage with Odelle Borda and one child, Jake Thorengren, issue of his second marriage with Kate.

The plaintiff in this suit claims the property above mentioned as the separate and paraphernal property of the first wife, and as such inherited by the three minors of whom it is the tutor; and the defendant contends that it was comnflnity property; and that is the question to be decided by us.

The judgment of the District Court was in favor of the plaintiff, and the defendant has appealed.

The defendant argues very correctly that notwithstanding the fact that the title to the property was taken in the name of Odells Borda, wife of Emile Thorengren, the. presumption is that the property belonged to the community; the burden of proof was upon her and her heirs to establish dehors the act that the property was hers for having been purchased with her cm separate and parar phemal funds under her separate administration. C. 0. 2399 (2369), 3402 ( 2371); Bachino vs Coste, 35 A. 570; 41 A. 274; 42 A. 357; 43 A. 144; 47 A. 768; 50 A. 216; 1220; 105 La., 35; 107 La. 82, 456; 111 La. 776; 125 La. 204; 126 La. 611; 128 La. 919; 130 La. 571; 131 La. 1 .

But this presumption may be rebutted by the wife. 42 A. 357; 50 A. 1220 (1227).

The admission of the husband in the act of sale that the property purchased in the name of the wife is her parapher-nal property is not binding upon the forced heirs of the husband. Bachino vs Coste, 35 A. 570; 125 La. 197; 111 La. 305 (309); 41 A. 244; 48 A. 785; 128 La. 919.

Has the plaintiff rebutted this presumption?

Amelia Borda, wife of Breffel, a sister of Odelle, first wife of Emile Thorengren, testified that her mother and sister worked together as dressmakers and they saved their money; her sister paid for the property with $450 "savings money" when she was single and with $1200 her mother loaned her "because the house cost $1650"; during his marriage, Thorengren was working for $12 a week; he had no money saved up; during four years after she bought the property she used the rents $18 a month to pay her mother the money loaned; witness collected th® rent and turned them over to her mother; she paid all but $300 which were still due when she died, and which Thortagren was unable to pay; she took charge of the children; her mother had no bank account, she accumulated the money after many years; her sons lived with her and paid board; they made sometimes $50 a week sewing; her mother took in washing also; but employed a servant to_wash; neither her mother, nor herself nor her brothers eve\ invested any money in property or anything else; her sister kept her money in the house; she had no bank account; Thorengren and his wife and children lived with witness' mother four years after the house was bought.

Kaile Chapman, a nephew of Odele Borda Thorengren, corroborates the testimony of Amelia Borda Breffel, and, in a measure, Clarence J. Chapman does the same.

On the other hand, Kata Thorengren, the defendant, testified that she was married in 1913; that she went to live in the half of the property in controversy,, and lives there still; that her husband collected the rent from the other side; heir husband worked for his aunt; she died and he got married; his aunt was insured, and he got a little money; when he married her he told her he had a house up there, and he brought her there; he told her they had put the title of the house in his wife's name for convenien.ce; her husband was earning $12 a week, and waw after-wards/to $15 and $18; she knows nothing except what her husband told her-; when she married and moved into the half of the house, her husband's mother-in-law got mad and moved out, and then Thorengren rented the half to her mother.

Mrs. Hita Schroeder swears that Thorengren told her that the property was in his wife's name, and that his second wife paid for it; the second wife is her husband's sister.

Mrs. Mena Baimann testifies that Thorengren told her that he bought a home on First Street and that he was not going to move there, hut

"ho was going to draw $ 9.00 a side, $18.00 a month and with the rent he was going to pay this house off".

We .rise from the reading of this testimony with the impression that both sides have a doubtful story about the origin of the money with which this property was purchased. Yet one side or the other must be true, as it was impossible for Thorengren, who was raising a family and earring only $12 or $18 a week, to have laid aside $1400 in 1906 with which to purchase this property. Counsel for the defendant tells us that

"no more fanciful, improbable, and highly unreasonable state of affairs can be imagined than that recited by Mrs. Breffel".

But her credibility has not been impeached. In the succession of Barrett, 43 A. 61, the Supreme Court said:

"Positive testimony by witnesses whose character and credibility are not impeached cannot be overcome by suspicion founded on mere improbability of their statements when not shown to be in ary sense impossible; especially when the judge & quo who heard the testimony has given credence to it".

And in the cas8 of Dolhonde vs Lemoine, 32 A. 251:

"A fact testified to by competent witnesses will be accepted as proved, no matter how eccentric it may argue the witness to be, if there be no evidence tending to impeach their credibility".

In Evans Pothier on Obligations, Yol. 2 p 194, we read:

"in deciding upon the truth of evidence, much stress is laid upon the inherent probability of it, a criterim which, within its proper limits, is attended with great utility, but which, like all other general criteria, may be carried too far x x x but each of the circumstances alluded to will have their influence in forming a decision between the abstract improbability of the fact related, and the particular improbability of the inme-diata relation under all its circumstances being false8. There ar® three elements in the testimony of plaintiff

which commends the judgment of the District Judge to us. The first is that Thorengren did not himself go to the notary's ofice to witness the act of sale passed to his wife. He had to be sent for. This would indicate that he considered the sale to be his wife's business and not his own. The second is that the plaintiff's witnesses ar® all disinterested and speak from thair own knowledge. The third is that the title to the wife remained unimpeached by the husband after the wife died, and as long as he lived. In the Succession of Lewis, 45 A. 833, the Court said that

"when the wife has died without any attack on her title, we consider that the laches and long acquiescence of the husband's creditors till after her death would relax the rigidity of proof ordinarily required in such cases". On the other hand, the defendant testifies in the inter-

est of her child and in her own interest as his tutrix, and her testimony is entirely hearsay consisting of declarations of her deceased husband in his own interest.

"Admissions by one deceased, proved by a witness who cannot be contradicted, much less convicted of perjury, are the weakest kind of evidence, ánd scarcely worthy of any belief". 1 H. B. p 518, No. 7; 105 La. 710; 44 A. 575; 40 A. 79; 36 A. 631; 35 A..1005.

But in this case it would be more than doubtful if Thor-engren is declarations would have been admissible „at all. Jiia ad missions against his interest could be heard, but not thews in y\ his favor. Demarets, 144 La. 173 ;16 Cyo 1202 No. 2;22 C.J.220.

Mrs. Schroeder contradicts all the other witnesses.

Mrs. Barmann says that Thorengren told her he was going to pay the house off with the rents; while according to the act of sale the price was paid cash.

The Judge of the District Court saw and heard all the witnesses; he believed plaintiff's witnesses, and we see no reason to doubt the correctness of his judgnent. 44 A. 578, 1 La. Digest p 602, 606; 140 La. 387.

"Where the testimony of plaintiff is contradicted by that of defendant, judgnent will be given in favor of the party having the preponderance of evidence. La. Bldg. Co. vs Beninato No. 7859 Ct. App.

It is therefore affirmed,

November 14th, 1921.


author: Honor John St. Paul,

text:
    NO. 8101
    JULIAN M. SWOOP VS HERCULES COMPANY, LTD.
    STATE OF LOUISINA COURT OF APPEAL PARISH OF ORLEANS

   OPIHIOH,

By his

Honor John St. Paul,

Dafendant wanted eight certain cast iron wheels renació acoerding to plans of its own, and at a time when labor and material wore scarce because of the great war in which this nation was then engaged. Plaintiff thought the work would be unsatisfactory but defendant insisted.

Defendant then furnished a blue print according to whioh the work was to he done; oil whioh it tea written that the prioe should not exceed |26 per wheel. But the olorlc to whom the order was given would not guarantee a prioe; whereupon defendant "suggested, or ordered, that one wheel he repaired, and then we would ascertain the cost and seexwhether to ge on with the work."

Heither at that time, nor afterwards,' did the defendant intimate that it was unwilling to have the work done on all eight wheels if the price did not exceed |l26 per wheel; hut on the contrary defendant then sent all eight wheels to plaintiff, whe remade them and returned then to defendant; and the latter accepted them without protest and proceeded to use them as far as possible.

Six months afterwards, whan plaintiff sought to oolleot his bill, defendant still mads no complaint 'about the work, "Sxoept X remember saying that the bill was high, and I ashed for the blue-print, which we never found, so that I could shew what I haa written on it, and we couia look at it together,"

October 17th, 1921.

She cost of the work was #40.40 per wheel, and a bill was rendered for that amount; all due to the fact that plaintiff’s clerk failed to report to his employer the price limit fixed by defendant. But as defendant had expressly stated its unwillingness to pay more than #25 per wheel, plaintiff can recover no more.

On the other hand, wha*«ene party does work for another, who accepts the product and uses it, equity would seam to require that the latter should pay at least the price fixed by himself, even though there was some misunderstanding about the amount of work to be done or the price to be paid for it. 0? C. C, 21, 1965. And accordingly, the contention that defendant owes for but one wheel, does not seen to'-rns well founded.

The judgment appealed from is therefore amended by increasing the amount allowed plaintiff to $200o,- with interest etc; and as thus amended it is affirmed at defendants cost.

Ascended and Affirmed.

Hew Orleans ha,


author: Honor John St* Paul.

text:
    NO. 8100.
    C. H. RICE & SON VS JOHN BARTON PAYNE, AGENT.
    STATE OF LOUSIANA COURT OF APPEAL PARISH OF ORLEANS.

   OÍIHIOH,

By his

Honor John St* Paul.

This caso a oraos up frota a City Court ana was haara ,na asoiaoa By one of tho judges alona, who thereafter reopened it and referred it to the full oeurt.

__ Tho Ibsuo is Briefly this: Can a commission merchant to whoa a customer has consÍgnea a carload of cattle for sale on commission, nalntaia an action for the commission' ho would hare earned, against the carrier who has noglig-ontly diverted the shipment to a competitor? po think he can.

1.

It is a recognized prinoiple of the law lie reliant, and hence of unirereal application, that the consignee or his transferee has the legal title to the property described in the Bill of Lading; and his muniment of title is tho hill of lading itself. Bank vs Meyer, 43 An 1. But neoesaarlly the owner of property is a "party" to the deed under which he halda. Seo also Dela Grange vs S. W. Telegraph Co. 26 Am. 383. Hence the consignee or his transferee nay sue director upon the hill of lading either for the property Itself or for any damage therste; and a recovery hy suoh consignee jri.li bar a reeerery by anjr Other person. Cellins vs Denver & Rio Gramde R. R. Co. 167 S. W. Rep 1178; Boston & Maine R. R. Co vs Warrior Mower Co. 76 Maine 251.

And of osaras it ia squally tras that where ths equitable title, 1. e, ths beneficiary Interest la the property, lisa la a one ene other than ths osaslenas, and ths oarrlsr has dellTersd the property, or aoeeunted for ths damage», to auoh other person, than Sqnity (natural or local) will like wise protest the oarrlsr against a double pnyaont. Sat la auoh oases ths sans Bquity should and will protest the oenalcass also te ths full extent of hie actual Interest In ths property* for Equity always deals OTsnhnndadly with all ths parties before it, aooerdlng to the Haxia that "He whs seeke equity, nust do equity"; and upon the Moral principle that one nust always do unto others as he would hare then de unte hln. C, C. 1966,

Henee when the just olalns of the equitable owner of the property hero been satisfied in full (as was ednittedly ths oase hero) it wsuld be oolarly Inadnisslble and absurd for the consignee to slain iron the oarrlsr any satisfaction In excess of his own interest in haring ths property delivered according to' oontraet, towit, his own adránoes er prsfita ox oonmis3ion; for he could not possibly reoorer nere.

^ aeaordinyiy the oensignoe nay maintain an action against th« aarrier who ha* braaohed th* eantraet ovan far th# »*l#A#f reaarerlng only hi* own advanons er profits *p eemaiealona. Missouri Pac. Ry Co. vs Peru-Van Zandt Co. 73 Kansas 295 ( 6 L. R. A. N. S. 1053); Clute vs Chicago, R. I & Pac Ry Co. 30 L. R. A. N. S. 1071.

XI.

Ihua undsr tho general law. St ia said however that nadar tho Camina lot of 1916, regulating Imtsratata ahipnants (aueh as this) tho only roterary that esn h* had under an interstate hill of lading is for aotual danace to the -property, and for nothing ole*. But this oaanot ha. The purpose of that aot was manifestly to rastrlet the right of interstate oarriors to Unit hy ooutraet their ooraaon law liability; that ia to say, it was intended to lnereaao the «arriera responsibility, net to deereasa it; in oth.-.r words, tho aat meant to benefit the shipper, not the warrior.

And that must surely bs a faulty interpretation of a 3tatuta which, by adhering to the words and overlooking its purpose, would convert an intendod benefit into an aotual disadvantage. Hence "Quod favore quo rundáis conatitafraa. ast, nuibnaftan oaeibua od laaalonep. sortro aojTwr.e iaraatna rldarla" Codex 1. 14. 6?

November 14th, 1921.

It is therefora ordered that- tha judgaeat appealed froa la affintad.

Haw Orleans, Sa,