author: Max. Dinkelspiel. Jug.se.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    WIDOW CHARLES PERRY, Appellee, versus JUNIUS HART PIANO HOUSE, LTD., Apellant.
    No. 6724
   O S I 5 I O 3

Max. Dinkelspiel. Jug.se.

In February 1909:plaintiff bought of the defendant a piano for the sum of $400.00, on the installment plan, at $8.CO a month, and the contract specified that should she fail to pay the price afe it matured she would deliver the piano to defendant, and up*rj|ier failure so to do when requested, that defendant was I authorized to take possession of the piano and sell the Same to the best advantage within ninety days in satisfaction of the balance due.

The first few payments were made promptly, but thereafter the contract terms were not strictly complied with. Plaintiff, however, paid small amounts at indefinite intervals and gradually fell into arrears, so that by the end of May, 1910, she had paid a little in excess of one-half of the amount that had then matured under the contract. At that time there were deferred payments due the defendant, and plaintiff went to defendant's establishment and informed them that she., intended temporarily leaving the •city, but would return.shortly to her home. There is nothing in the record to show that she askéd for an extension of time for payments, and certainly, if this was,not so, there was no extension offered or made. If there was, the record fails to show it.

Plaintiff at the time either kept a lodging or boarding house and had, according to the record, quite a number of people stopping with her. After she had left the city a day or two, the defendant sent to her home one of its collectors. This man called and asked for the whereabouts of the plaintiff and was informed by one of the boarders or lodgers that she had left the city and., had notified defendant of that fact, and thet she would shortly return. He tecane insistent, seeming not to understand why or wherefore plaintiff had left, and the hoarder, upon ascertain» ing the nature of the business, offered to pay, partially, the amount past due, a3 heretofore recited, to- the collector. The latter remarked that he couia not do that without seeing the defendant, his employer, and, with this statement, left the house. The next thing that developes is that men, sent by the defendant, came to plaintiff's house and forcibly took possession of the piano, against the protests of all the people in the place, without any warrant, much less the institution of any civil proceedings, «nd by force, notwithstanding the remonstrances of the people in the house, the piano was taken to the defendant's store.

Subsequently plaintiff was informed of the.facts, and immediately returned to Hew Orleans and at onef^went to the defendant's place of business ana there protested over and .over again at what had been done, without cause, - ready and willing to pay the installments, but defendant’s agents refused to accept, gave no explanation of any kind or character to plaintiff, and, after repeated demands to get her property or to have some satisfaction, in knowing where it was, she was finally told that the piano had been sold and was no longer in existence so far as she was concerned, without stating to whom it had been sold or anything else about it.

This was the beginning of the events subsequently to follow.

The record of the Civil District Court, Ho. 105,104, Dibision "B", shows that a petition was filed by the plaintiff on July 7, 1910, in which the allegations were substantially to the effect heretofore stated. In the 4th article, the allegations are: "That petitioner filed suit for the damages resulting from said tresspass and unlawful entry of her premises, and therein these defendants reconvened for the balance due them by petitioner on said piano." Alleging, further, ^'Shat said suit Ho. 94,069 of the docket of this court enaed by judgment in favor of the defendant.

Prom that judgment there was an appeal to this court, which will he found in Court of Appeal Reports, Volume 1C, at pages 170 ot seq. The organ of the court was the Honorable Emile. Godchaux. At page 174, the court says:

"Plaintiff does not sue for any pecuniary loss entailed hy defendant's aot, hut confines her claims to damages for the humiliation suffered, etc., and to exa: plary c'unages. "1'fK is no Question that she was greatly shocked and humiliated hy w?>at occurred, several of her tenants left her on the plea that they feared that the balance of the furnishings of the house would he removed, and the fact that the piano was of comparatively small value and was removed, without violence or injury, dees not materially affect the extent of defendant's liability."

They cite Thayer v. Littlejohn, 1 Robinson, 140; Van Wren v. Flynn, 34 A., 1158; Boniel v. Block, 44 A., 514.

When the ease again was tried in the lower court, after hearing pleas, exceptions, answers, - all of which is evidenced hy the record and need not he Quoted in this opinion - the court rendered judgment in favor of the defendant.

Plaintiff then appealed to this court, and the judgment was reversed. (See Court of Appeal Reports, Vol. 13, p. 416, where again his Honor, Judge Godchaux, was the organ of the Court).

After the ease want hack "to Hi vision "A" of the Civil district Court defendant's attorney wrote to plaintiff's attorney asking him to make up a statement of the judgments, in order to have settlements, and the reply'was accepting the cheek of the Junius Hart Hiano House Ltd., the defondant, for Í20.G0, and both plaintiff and defendant ¿iked the docket satisfied.

It is here urged in brief and argument hy the defendant's counsel that both judgments heretofore alluded to have been extinguished and the docket satisfied, henee the matter is res judicata, and that there was not even an application for rehearing hy Rrs. Perry, and therefore she was evidently satisfied with what she sot, anil she was not entitled to the return of the pienoj that she owed the Junous Hart iiano House $226.00 with interest, approximately altogether Í4G0.00, that this was a final Judgment and therefore must he so respected and regarded.

We do not agree with counsel's contentions, Ehe suit for damages is one thing, the suit for the possession of the piano, and the judgment thereunder, is another; therefore there can he no res Judicata.under the law. And the judgment rendered hy this court in- the last case, in our opinion controls, and it disposes of the question of res judicata clearly, in this way; "Certainly the judgment cannot he interpreted as awarding to defendants a permanent or indefeaBihle right of possession of the property, for that would he tantamount to a recognition of defendants' ownership of it; while the fact is that the question of title was never involved in that proceeding, hut on the contrary, the judgment itself, in recognising defendants' privilege as unpaid vendor and his right of retention, negatives his ownership and stamps the character of his possession as merely temporary or defeasible." Again: ''In other words, since the first judgment recognized in defendant hut a tenporary right of possession, is no har to the present action, which is based upon the contention that this right has since terminated.”

Finally,.in the able brief of counsel, in the alternative, - the plea ol res Judicata ‘being overruled, as has been done, - it is contended that'having purchased the piano in February 1903 for $400.00, payable in installments, the piano having baen removed on the 14th of June 1910, and sold in June 1913, counsel asks "How much was the piano worth at that date?" -He then quotes from the testimony of a hr. Stocker, who, amongst other things, swears that he sold this piano on monthly installments of $6.CC for $276.00, that it cost defendant at least 25$ to collect the installments, and therefore, under the cireumstanoes, the net amount would be $206.26, which counsel says is a good price for a second-hand piano bought in 1909 and standing idle until 1913.

This may he true: we have no method of ascertaining whether it be so or nót¿. But, taking it for granted, it can have no possi ble application to the facts of this cause.

When plaintiff had in the meantime paid the entire amount due defendant and therefore was entitled to the article that she had bought, - the piano in question, - the least that defendant should have done-; under the judgments rendered, waB to have repaid her the $400.00 which the judgment of the lower court allowed and whether defendant sold it at one price or another, and whether it cost 25$ more or less in order to effect sales, make collections, etc., is absolutely immaterial to the issues as presented in this cause.

The piano house, defendant, had refused to return the piano which it had previously unlawfully disposed of, and therefore wx wrongfully and by its fault put it beyond its power to return the piano to the possession of its ownwr. In acknowledgement of its wrongdoing, and to avoid reimbursing $400.00, interest and costs, that she had paid, defendant offered to give her another much inferior piano, which she of course refused. Hence this suit, wherein she has recovered the price she paid on the piano illegally taken from her.

V/ith the authorities quoted in the opinion of this court heretofore rendered, and cited in this cause, there can be but one result, and that is that the judgment of the court a quo be and is hereby affirmed, with costs in both cases.


source: Caselaw Access Project

author: CHARLES F. CLAIBOHHE, JUDGE.

license: Public Domain

text:
    CHARLES F. CLAIBORNE JUDGE.
    LUCIEN CUSIMANO VS EDWARD P. DURKIN.
    No. 7457.

   CHARLES F. CLAIBOHHE, JUDGE.

Plaintiff claims damages from defendant on the allegation that an automobile owned by defendant and operated by his minor ran into his wagon and injured it.

He alleged that at about 12 o'clock in the day his horse and wagon were standing on Rampart Street; "that an automobile owned by the defendant and operated by hie minor brother, with his knowledge and consent, without regard to;property rights, carelessly and negligently ran into thé horse and wagon of your petitioner from the rear" causing damages to the extent of $251.00 that defendant admitted his liability and offered to pay $100 which petitioner refused.

The defendant denied every allegation in plaintiff's petition contained, except such as he specially admitted. He averred that it was true that his brother was driving an automobile which was his, the defendant's, property; but that his brother was over twenty years old, and was a competent chauffeur; that the accident was unavoidable and occurred in the following manner; that defendant's brother was driving his automobile on Rampart Street, wood side, going in the direction of Canal Street; that when he reached a point about 150 feet from the corner of Governor Nicholís' Street, he saw a woman crossing.Rampart Street from the wood side to the River; that he blew his horn; that the woman had nearly reached the neutral ground when she suddenly retraced her steps; that in order to avoid running over her, his brother swerved to the right and in doing so unavoidably ran into the plaintiff's wagon striking the rear wheel.

The Judge of the District Court found in favor of plaintiff for the following reasons:

"... Despite the excellent and exhaustive argument tending to exculpate defendant from liability, I am of opinion that the defendant did not uae proper diligence in keeping his defective automobile off the street. He negligently permitted, if he did not consent to, its use by his brother who ie employed by him, and who should have enforced the rule said to have been laid down. I think defendant negligent and liable. The pleadings are sufficient, even though the charge of $30 hire for wagon was in fact hire for horse".

The defendant appealed.

We are at a lose to understand upon what theory it is attempted to hold the defendant liable. The petition alleges that the damage was caused by defendant's minor brother. There le no law that makes one liable for the acts of his brother, whether a major or a minor. The Articles of the Code 2317 to 2322 designate the persons for whom one is responsible, and among those we do not find that one is liable for the acts of his brother. In Miller vs Meche, 111 La., 143 (146) the Court said:

"... The disposition of the law in this respeot is exceptional and rigorous. It should not be extended. Those mho claim from the father or tutor for offenses committed by the son or ward must bring themselves Btrictly within the law".
"The legal responsibility for the acts of others oonstltutes an exception to the Common law and oannot extend by analogy to other oases than those expressly and limitatively provided by law". 3 Dalloz Codes An. p 774, No. 10, 12, 13, 16 et seq.; 39 Dalloz Rep. Leg. p 401 No. 500; 7 Merlin Rep. Im. p 240 Vo.. Delit § VIII; 11 Toullier § 258; 2 Sourdat § 753; 31 Demol.§ 595; 20 Laurent § 551; 4 Aubry et Rau p 767; 13 Duranton § 720; 13 Baudry § 2938.

Hor is the defendant liable because the automobile that did the damage was hie property, even though it was in the hands of his brother with his consent.

"Where a motor vehicle is being UBed by a mere licensed and is under his control, the owner is not liable no matter how gross may be his negligence". 28 Cyc p 39 § III; 147 N. Y. Supp., 1087; 133 S. W., 354; Davids Law of Motor Vehicles, Sec. 205, 207, 208; Hale on Bailments p 200; 6 C. J. Bailment p 1151; 163 S. W., 301; 144 N. W., 745; 163 S. W., 301; 144 N. W., 745; 145 N. Y., 708; 156 N. Y., 369; 142 Pac., 351; 71 Maine 432; 147 N. W., 1014; 138 N. Y., Supp., 119; 162 N. Y.. Supp., 992; 71 S. E., 492; 92 S. E., 295; 74 So. 422; 163 S. W., 594; 62 So. 28; 77 S. E., 1099; 111 N. E., 647.
"The reports are full of cases holding that where a servant, even with the master's consent,takes the latter’s car and while using it for his own purposes negligently injures a person thereby, the master is not liable". 200 S. W., 289, 1068; 169 N. Y. Supp., 490; 168 Pac., 863; 13 Cyc Depositary, 812; 10 A., 403. In Hart vs R. Rd. Co., 4 A., 261, the Court said: "... The responsibility of the defendants to the plaintiff, as we apprehend, depends not upon the ownership of the omnibus, but upon the faot that the damage was done by their servant, for whose acts they are sought in this aotlon to be made liable".

In Rousseo vs Gauche, 8 Ct. App., 219, we said:

". . . Wa do not think that the possession of the lessee is that of the lessor to the extent that the latter is responsible for the use which his lessee makes of the thing leased". 1 Baudry - Lac Louage § l041; 6 C.J., 1151 § 114.

Plaintiff argues that an automobile was declared to be a"d»ath-dealing" maohine by the Supremo Court in the case of Burvant vs Wolfe, 126 La., 787, and because of that fact, defendant is liable for having put it in the power of his brother to got possession of it and drive it. We have been referred to no authority in support of that proposition. But the decisions quoted heretofore would seem to be adverse to it. An automobile is only relatively a "death-dealing" machino. It is inherently absolutely innoououe; in that respect it differs from vicious animals; and therefore the rules of liability applicable to the owners of the latter do not apply. It is only when the machine ia put in motion, that it may become dangerouB, or "death-dealing", but then only in the hands of inexperienced or careless chauffeurs; then the danger results not from the machine but from the manner of driving it. So are eleotrio tramsways "death-dealing"; nevertheless, we have yet to learn that a railroad company was held liable for injury done by a car solely upon the ground that it was the owner. A razor, a shot gun, a pistol, and many other articles are "death-dealing" and yet the owner could not be held liable for the'damage caused by one to vhom he had loaned it, unless it waB alleged and proved that the borrower was not competent to use it and there was fault or negligence in lending it to him.

In the present case the defendant's brother was twenty years old and a competent chauffeur; therefore, there was no imprudence in allowing him to use the machine.

"The act of the father to have left at the disposal of his minor child a fire-arm which he used in a daraag-. ing manner must not necessarily be considered as an imprudence involving his responsibility, especially when the minor is twenty years old". 3 Fuzier-Herman, p 881 76.

The District Judge seems to have rested his deoision upon the fact that the machine was not in good condition, and "that the defendant did not use proper diligence in keeping his defective automobile off the street, and that he negligently permitted, if ho did not consent to its use by hiB brother who is employed by him". There might have been weight in that reasoning if the accident had been caused by the want of repair or by A. defect in the machine. But the evidence is that the accident was oaused, as stated in the nnswei, by a woman getting in the way of the machine and by the driver suddenly swerving to the right to avoid her. The condition of the machine had no connection with the accident. The accident would have happened just as well with a machine in perfect running order.

The plaintiff finally attempts to hold the defendant on the ground that this brother was his employee. The evidence is that the defendant was in the automobile hiring business; that his brother was not the chauffeur employed to drive the machine; that his brother drove it only in the absence of the regular chauffeur; that the machine had been laid up because it was out of order; that on the morning of the accident defendant's brother was using the machine to take his own clothes to the laundry and not for the benefit of the defendant nor in pursuit of his business

It is true that these facts established that the defendant employed his Brother; but another essential fact must be established to make the defendant liable on the theory of master and servant. It must be shown that the damage was caused by the servant “in the exercise of the functions in which «they are em- ^ / '>yc. % 'tvf IN', • ployed". C. C. 2320. The theory of the master's liability is his fault in making an improper selection of an incompetent servant to carry on his business.

In the case of Brenner vs Ford, 116 La., 550, defendant 's horse driven by hiB driver ran over and kilUed a child. The Court said that at the time of the accident the driver was driving the horse "for his own pleasure and not in the discharge of any duty imposed upon him by hiB employment as a servant". See also 127 N. Y., Supp., 220; 93 N. Y. Supp., 161; 134 N. W., 14; 5 Ct.App., 297; 177 Ills. App., 367; 108 N. E., 153; 107 N. Y. App. Div., 120; 94 N. Y. Supp., 771.

"In order to hold the employer liable, the damage must be done through the neglect of the slave hired while he is actually engaged in the functions or duties intrusted to him". 18 La., 490.

The test of the master's liability for damage caused by his servant therefore is: was the servant performing his employer's work, or was he in the discharge of his duties as a servant at the time the damage was caused? If he was, the liability of the master attaches; if he was not, the master is not liable. In other words the liability of the master arises only whan he is doing his work through the. servant qui faoit.psr alium faoit per se - and the master is liable for’ the manner in whioh the servant does his work, as if it was being done by the master himself.

"The test by whioh to determine whether the master is liable for the tortious acts of hie servant,, is not whether it was Bone during the existence of the employment, that is to say, during the time covered by the employment, but -whether it wsb done in the prosecution of the master's business". Upon this subject it.has osen said; In determining whether a particular act is done in the course of the servant's employment, it is proper first to Inquire whether the servant was at the time engaged in serving his master. If the act-oe done while the servant is at lioerty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time the injury was inflicted, acting for himself and as his own master pro tempore. the master is not liable. If the servant steps aside from his master’s ousiness, for however short a time, to do an act not connected with this business, the relation of master and servant ie for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities". 1 Thompson on Negligence 526, p 489; 28 Cyc, 1525 § 3, p 1536 (c).
"If a driver, turns wholly aside from the master's employment and goes on an independent journey, wholly foreign to his employment, for a purpose exclusively his own, the master is not liable for his acts during Buch time. Tot instance, if the servant takes out the master's horse or team, antomobile or hand car for his own pleasure or purposes, when not acting for the master, or after he has been ordered to put them in the' stable, the master is not liable for injuries received by third persons while the servant is thus aeting for himself." 26 Cyc,p 1536 (c)
"Where a servant employed in the delivery of goods by wagon drives out of the way of his .route for the purpose of visiting his home, the master i's not liable for injuries to a child caused by the servant’s negligent driving as he left his home", id note 16. -
"In order to establish liability, the persons must not only be general employees df the owner but must be in his business at the time the injuries are caused and not merely in their own recreation and mleamim". 28 Cyc p 38 note 29; 56 Ga., 274; 1 Hill, 480; 47 N. Y., 122; 7 Am, Rep., 418; 2 N. H., 548; 37 Mich., 205; 71 Me., 432; 36 Am. Rep., 336; 45 Conn., 44; 29 Am. Rep., 635; 31 Minn., 351; 47 Am. Rep., 793; 73 N. Y., 543; 177 Ills. App., 367; 108 N. E., 153.

The evidence in this case falling to show that the accident occurred while the defendant's employee was in the discharge of his duties as suoh, the employers incurred no liability.

It is, therefore, ordered that the Judgment herein be reversed and avoided, and that there be Judgment in favor of the defendant rejecting plaintiff's demand at his coot.

April 3rd., 1919.


author: By Ills Honor John St. i'aul.

text:
    NO. 7458.
    AUGUSTIN LASSEIGNE VS LAWRENCE LAICHE, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By Ills Honor John St. i'aul.

This is a partition proceeding in which a husband intervenes ,to claim the marital portion of his wife's estate.

Felice Sigur, wife of Jean Baptiste Edward laiche died Hovemher 27th 1907, leavinc: eight children, fier estate consisted of a small of seperate property the value of which at the time of her death, does not appear. She owed no debts, and her succession was never formally opened; hut her husband continued to reside on the property and cultivate it for his own account up to the tina ';h:n intervention was filed.

Meanwhile four of the heirs sold their shares in the property to Augustine lassiigne. The latter sued the other heirs for a partition, which was duly ordered; and on April 27th 1918 the property was sold for $2600 .pash.

At the Hrime of her death her husband was, and still is, in necessitous circumstances. On April 25 1918 he intervened in the partition proceedings, and whilst not opposing the sale,.claimed a child's share in theproceeds, to wit, ó’ne ninth, in usufruct.

Ias3eigneopposed his claim on the ground that it showed no cause of action, and was also prescribed by ten years (Hovemher 27th 1907 to April 23rd 1918.

1.

The marital'portion is not an inheritance; it is a purely personal right which the suirvivor must claim judicially. Until so claimed, the right does not vest in the survivor and is not transmitted to his heirs. Succession of Justus, 44 An 721; Succession of Rogge, 50 An 1228; Succession of Piffet, 39 An 559.

11.

is f Considering therefore that the right ftp## not an inheritance but a more right of action against the Succession and heirs, that is to say "Jus in personam". it would seem that, like all. other personal actions, it is prescribed by ten years. 0. C. 3544. And in all likehood thiB' prescription would tm *rom the death of the other spouse.

But however that mfcyWf he, we think that in this case prescription waa interrupted by the heirs permitting the husband to keep possession of and enjoy the whole property. As was well said by his counsel, it would have been a useless thing for the intervenor to demand of the heirs the enjoyment of one ninth of the estate as long as they remained content to allow him the enjoyment of the whole. Rex neminem ooglt ad vana sen inutilla peragenda.

Re think their adquiesoenoe was a continuing interruption of prescription. I

111.

0n the other hand we think it .contrary to every principle of equity to permit a surviving spouse to urge his belated olaim against one who has purchased of the heirs without notice of his claim. And we do not think our laws contemplate such injustice.

Our code {Articles 1444 to 1449) enjoin a duty upon all who have claims against a succession, actual or contingent, if they intend to look primarily to the assets of the succession and not rely upon the personal credit of the heirs, that they demand what is called the "Separation' of Patrimony", that is to say a segratigg of the assets of the succession for their benefit, or in other words some sort of formal administration. And above all, if they wish to preserve their claims against the immovable property of the succession, so that it may aot he alienated-to their prejudice, they must record those claims in the mortgage office within three months after the succession is opened, i. e., after the death. C. C. 3275.

We think the article, which in terms applies to creditors and legatees, applies'with equal foroe to a surviving spouse who intended # olaim the marital portion, and who (as we have said) is but a creditor of the suooossion. Certainly such interpretation is in accord with the whole spirit of our laws; for our constitution, our statutes, and our jurisprudence seem all alike to abhor the idea of secret (unrecorded) étttéi incumbrances upon immovable property.

March 6 1919

Vía are therefore of opinion thsffc Ladse'igne acquired free from the claim which the interventor here-urges and as to him, the petition shows no cause of aotion.

As # this appeal presents only the issues raised hy lasseignc- and does not éntend to the claims &###&»# which intervenor may have upon the shares of the other heirs who did not sell, it must he —■*» 'understood that we are not passing upon those, and that in affirming the judgment appealed from we mean simply that Lasseigne is to take his one half of the net proceeds of sale free from the intervenors claim.

She judgment appealed from id therefore affirmed.

IJew Orleans

Judgmont Affirmed.


author: Uto Dirikelsplcl. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    ED MULLING vs CLARA JONES, et als.
    No. 7459.
   0PIII03

Uto Dirikelsplcl. Judge.

The salient facts in this case substantially are as follows:

Mr 3. Agnes Maloney, wife of Prank leland, and Mrs. Adele Maloney, divoroed wife of Henry Miller Hoyle, liking in Biloxi, in the State of Mississippi, pressed on all sides by creditors, through their oounsel at the time, Mr. louis Goldman of Biloxi, arranged with their creditors, through Ed, Mulling, by confessing judgment, to stay demands. This confession of Judgment was for the sum of $6314.67, and the confession was sent to this state and to this city for execution^and Judgment on the confession was rendered against both of these ladies in the full sum prayed for, with legal interest from January 10, 191E until paid, and costs of suit. The judgment was rendered and signed in open court on the 28th day of Kay, 1912.

The evidence presents the testimony of Mr. Goldman, which bears out, without a doubt, the facts heretofore stated, and a rule was taken by the defendants, setting out, amongst other allegations, that the judgment was against them as married women, without the authorisation of their husbands, and therefore null and void upon its face; and there were other reasons assigned not necessary to be mentioned in this opinion.

The Judge who tried this case in the lower court having refused to vacate his judgment, an appeal was taken to our Supreme Court, and it was held by that tribunal that the judge erred; that under the laws of this state a married woman could not be sued without the authorization either of her husband or of the Judge, and that was not shown, henoe the Judgment was sent hack to the court a quo.

Subsequently payments were made, through sales of property and otherwise, to the extent of 51/ 0’j if-— \ and after these payments had teen made an Injunction was applied for, and the «negations of the petition, amongst other things, stated:

1. That one of the defendants in the original suit, "Clara Jones", was. a fictitious person, never having had any actual existence.
S. That under a pretended confession of Judgment, a decree had been entered against petitioners, and a writ of execution had been issued, under which certain property belonging to petitioners had been seized and advertised for sale on the 19th day of July, 1917, by the Civil-Sheriff for the Parish of Orleans; and that said pretended confession of Judgment imported no iegal liability against petitioner's^ because not only defective and illegal in substance and form, but the court was without Jurisdiction ratione personae to proceed in the manner and form set out, petitioners being residents and domiciled in the State of Mississippi prior to and continuously since the date of said "confession of Judgment" and thé judgment rendered herein.
3. That, petitioners had just received knowledge of this suit and the judgment rendered, and had never heard of the plaintiff, Bd. Mulling, and had never had any dealings with him whatsoever, and believed and alleged that like the said Clara Jones he is a fictitious person without any actual existence at all.
4. Chat while the document sued upon bore the signature of petitioners in their maiden names, in truth and in fact they were married at the time and were living with their husbands in the State of Mississippi, but that the same was not acknowledged by them before any notary public, as is therein set out; that the entire document was signed by them in the State of Mississippi and City of Biloxi, in total misapprehension of its true import, and with a view indicated to them that it was a matter for the protection of their interests, and trusting to the truthfulness- of said statements they signed same, but had never had any knowledge of the true situations therein ever set out nor were they/aware that they were confessing judgment in favor of any such person named or designated as Ed. Mulling.
5. That as will appear from the said document, it is made to appear that a suit was then pending in the Civil District Court for the Parish of Orleans, when in truth and fact no such proceed--ing had ever been fiied until several days after said confession of judgment had been obtaihedj that the docket entry and fictitious title of the suit constituted a fraud, not only upon petitioners but upon the court, in the use of fictitious persons or names much less as a matter to conceal the existence of legal proceedings from the actual litigants therein concerned.
6. That since the issuance of the writ of execution and the seizure of petitioners' property under the Judgment herein, a curator ad hoc had ■been appointed by the Honorable Court tó represent petitioners, but no attempt had been made to locate them.
7. That the entire litigation involved herein was a scheme perpetrated by unknown parties to further the use of their own selfish ends, and neither were any alleged subrogations, notes or evidences of indebtedness filed as part of said petition, as is alleged therein.
8. Petitioners further represented that by virtue of said writ of execution, the Civil Sheriff of the Parish of Orleans had seized and adverted for sale the interests of petitioners valued at the sum of $3,000.00, in and to the fol'lowing described real estate. (Then follows the description of the property).
9. Petitioners further represented that unless the said seizure and sale of said aforesaid property was enjoined by writs of injunction, the said Civil Sheriff of the Parish of Orleans would proceed to sell all their rights, title and interest. in same, and it would thereby work irreparable injury to petitioners, and in consequence petitioners were entitled to the process of the court to arrest said seizure and sale.
Wherefore they prayed, having sworn to the petition, that Ed. Mulling and the Civil Sheriff • be cited to appear, and after due proceedings had there be judgment in favor of petitioners and against' Mulling, annulling the judgment herein rendered and signed by ¡the Honorable Court on May 28, 1912, vacating and annulling all of the proceedings had thereunder, and more particularly the writ of execution and seizure of the interests of petitioners in the aforesaid real estate; that writs of injunction issue herein upon security being furnished in the amount, with surety and with the conditions required by law, enjoining the seizure and sale of the interests of petitioners in the aforesaid r.eal estate by the Civil Sheriff, and that said write be perpetuated, and for general relief.
This petition was sworn to by Raul ¶. Maloney, the attorney.

To this petition a plea of estoppel was filed, which, among other things, alleged that the judgment rendered in this case against the two plaintiffs in injunction and defendants in the original suit, towit, Mrs. Agnes Maloney,-wife of Prank leland, and Mrs. Adele Maloney, divorced wife of Henry Miller Hoyle, had been recognized, aoquiesced in and partially satisfied by pajments made on account of said judgment, from time to time, towit, August 20, 1914, jlto08.SO; April 1st. 1916, $438.16; and by other credits made on account of the interest which said Judgment bore. Therefore respondent prayed that the plea of - estoppel be maintained, and that plaintiffs - naming them - be denied the petition of Injunction, and that the suit be dismissed at their cost.

The matter was heard and disposed of by a denial of the Injunction prayed for, and, amongst other things in evldenoe In that case, there was introduced the laws of the State of Mississippi, which substantially proved that married woman in that state had all the rights of femmes sole, amongst other rights being the right to confess judgment, and do. any other sot the Same as any other party.

A supplemental petition was filed, claiming that counsel had discovered, slnoe withdrawing the record, that the sheriff had hoen instructed to credit the writ with three payments heretofore alluded to, one being for $2041.45, having been paid on. August 20, 1914, another, no date, for $1994.56, and another on April 1, 1915 for $438.16, making a total of $4473.96; alleging further, according to the allegations of the supplemental petition, that $4035.80 was collected,on August 20, 1913; making a total of $8509.76. Contending this, it was proven that the oounsel for the original plaintiff. Mulling, had gone into the sheriff's office and in a pencil memorandum had ordered the sheriff to credit defendants in execution for the full amount of the actual payments, which the cheek presented in this record showed werp the only payments made in this case, and the Judge a quo finally, in r^ering Judgment in this case oredited the $5314.67, the Judgment originally granted, hy creditB which in toto amounted to the exact amount of the payments made. In other words, he credited the defendants with $4036.80, with legal interest from April 20, 1913, and a further credit of $438.16, with legal interest from April 1, 1916, until paid, and all costs. This Judgment was rendered on June 4, and sighed on June 10, 1918.

There can he no question hut what, under the facts and undér. the law, the Judge correctly administered Justice in this oase.

Article 1846, C. C., under the head of Confession of Judgment, (Ho. 4) provides:

"A Judicial confession of a debt shall not he avoided by an allegation of error of law, though it may he hy showing an error of fact."

And Artiole 2291 C. C. provide*:

"The Judicial confession is the declaration Which the party, or his special attorney in fact, makes in a Judicial proceeding.
"It amounts to full proof against him who has made it.
"It cannot he divided against him.
"It csumot Re revoked, unless it be proved to have keen made through an error in fact.
"It cannot he revoked on a pretence of an error in law."

In the case of Catherine E. Randett, et al. v. M. T. Gordy, Sheriff, et al., 32 An p. 904, the syllabus reads:

"A confession of Judgment will not he avoided and . annulled on account of an errdr of law."

And at page 908, the court goes on to say:

"A Judioial confession of a debt shall not be avoided by an allegation of an error of law, though it may be by showing an error of fact. Was her confession of Judgment made in error of law or of fact? In her amended petition she alleges that 'when she signed the confession of Judgment' etc., and 'that this error of law and’ fact was the sole motion that caused her to sign the aforesaid confessed Judgment' that %he did so in ignorance of her rights, and was then induced to believe she was bound by the purchase of the property by her tutor and father.* In her testimony she says 'When I signed the confession of Judgment I did it through ignorance; when I signed the confession my motive was that I thought I was bound by the notes signed by my father'. Again she says 'She petition was presented to me by my father for my signature to the confession of Judgment. I did not know the full import of the document I signed. I knew it was a confession of Judgment.' thus we have her distinct admissions and acknowledgements that she knew and-intended that what she signed was a confession of Judgment. We think this formed a Judioial confession of a debt contemplated in Article 1846 C. C.”

Again, in the 40th Annual, the case of Gaudet v. Gauthreaux, et al., p. 186:

"Our Jurisprudence has uniformly recognized and enforced the wise and salutary doctrine which firmly binds a party to his Judicial declarations and forbids him from subsequently contradicting his statement thus made." (Quoting numerous authorities).

And at page 189, the court goes on to say:

"She law holds parties to their allegations of record. It does not allow them to play fast and loose, to falsify what they have solemnly declared to be a fact - the truth.
"Such averments are the highest evidence against the party making them. Ihey are not subject to explanation or contradiction ab extra, as a rule; so that what appears to be of record is to be proved thereby only, and nothing conflicting therewith oan be admitted." (Quoting authorities).

Again:

. "It is a well settled rule in the administration of Justice that a party will not be permitted to deny what he has solemnly acknowledged in a Judioial proceeding, she only means of courts to protect the integrity of Judioial proceedings are the sanctity which the law throws around them"» (And authorities there cited).

1919.

Bence, our conclusion is that the allegations of nullity, or fraud, or error, either of fact or of law, have not been proven; and further, that the alleged double-payments, so termed, have fallen short from the truth, and the fact remains that the judgment as rendered, and the! credits given by his Honor of the lower court, are the only judgment and oredits that these parties are entitled to. Ihe Judgment is absolutely oorreot, and is affirmed.

Hew Orleans, __


author: By Eis Honor John St. Paul.

text:
    NO. 7460
    GEORGE E. REUGGER VS WM. E. DE BRUEYS.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIMOS •

By Eis Honor John St. Paul.

Plaintiff/ brings thia auit via executive at. the defendant'a domicile (Orleans) although the mortgaged lands are situated in another parish (St Taraany). Defendant seeks to enjoin on the ground that the court is without jurisdiction.

There is no merit in the contention. By the very terms of Art 163 of the Code of Practice (evenas originally written) where a proceeding has fir its object the enforcement of a mortgage upon immovable property by virtue of an act importing a confession of judgment, such prooeeding may be instituted either where the property is situated or where the defendant has his domicile. And hence the Supreme Court was neoessarily bound to recognize the validity of Executory Process issued by the court of the defendant's domicile, though the property to be seized might be situated § elsewhere. 17 An 126; 23 An 560.

11.

It is further urged, that the.re is pending in the court of St Tamany, Parish, where the property is situated another executory process against the same property and prior in date to these.proceedings. Hence it is urged that this case should for that re ason^have^ been instituted before that court or at least be transferred,-*/ CL. <P. /%-áj 3f-t -tfawt -the. eoBtogfafea. reama. now-aTtfeuoAacMgi-ijAet».

But assuming that the property is still under ¿ej-bure by the • court of St Tamany, nevertheless the contention is unfounded in law. Articles 126-395-396-397 C. P. provide that where one seeks to arrest the execution of an order of seizure or regulate its effect between creditors with conflicting privileges, he shall bring that issue before the court in which the property was first seized. But it is perfectly celar that as long as no conflict arises there is no occasion whatever to transfer proceedings from one court to another.

Por it is neither unlawful nor unusual for a sheriff to have in his hands at one time several writs against the same defendant Issued out of different court’s and to levy upon the same property under them all' successively. -If the. property seized sells for enough to satisfy all these writs^ then'all claimants are paid in full and no conflict can possibly arise between them. If however the proceeds of sale should not suffice to pay all claimants it is iíéié then that a conflict arises and it is then time to raise a contest over the proceeds wfelch contest would then be transferred to the court having issued the fir3t seizure C. r. 126.

March 27 1919.

But no such situation has yet arisen in this case ahd no 3uch situation may ever arise.

111.

finally it is contended that plaintiff herein is only an Interposed person acting for the plaintiff in the proceedings before the court of St Tamany Parish who i3 alleged to be the true owner of the note herein sued upon. And based upon such allegation pleas of res .judicata lis pendens. and payment are urged against the plaintiff.

But the evidence of plaintiff herein is that the note belongs to her, that she acquired it long before maturity in entire good faith and for the full value thereof, and that same is still unpAid; and thi3 is practically unoontradioted.

I-t Í3- true -that the- trial -judge- allowed defendant to introduce, for the purpose of contradicting hor, the testimony of a witness taken on the trial of tho case before the court of St Tamany, to which the plaintiff was not a party. But plaintiff objected to the introduction of such tostiraony as being res inter alios acta, and her objection should have been maintained. However even after admitting this testimony the trial judge seems to have attached no weight to it and accordingly dissolved the injunction and directed the sheriff to proceed with the Executory Process. We think his judgment was correct.

It is therefore ordered that the j.udgment appealed from he affirmed.

Hew Orleans La,


author: Meg Dlnkelapjel. Judge.

text:
    STATE OF LOUISIANA COURT OF APPEAL.
    DR. GEORGE W. LUCAS Appellee, versus J. J. HARRIS, at al., Appellant.
    No. 7463.
   opinion

Meg Dlnkelapjel. Judge.

This cause was tried before me e4 the following stipulation of facts:

"That the Injury for whloh the plaintiff, Dr« George *# lucas, treated the defendant, J. J. Harris, wassus,talnaA by the said Harris, Hovember 8th, 1917, while he was In the employ of Southern Hies Milling Os., co-defendant; on the premises of the said company, St was taken by defendant's employees to a hospital.
"That the Louisiana Workmen's Compensation Act (20 of 1914. amended by 242 of 1916) Is applicable to the relation of master and servant then existing between Southern Bice Milling Co. and J. J. Harris;
"That from the hospital the employee, Harris, went to his home and his wife summoned Dr. Lucas; that Lucas took charge of the case, rendered treatment, and continued treating the said - Harris until the employer. Southern Rice Milling Co., was apprised thereof, whereupon, and with the oonsent of plaintiff . who admitted that Harris required additional medical treatment, the said Harris was placed by said Bice Milling Co. under the treatment of its regularly employed surgeon and an orthopedist}
"That the Southern Bloe Milling Co., or Its agents, did net authorize plaintiff to treat Harris; that It did not ratify his actions, and that plaintiff did not know Southern Blew. Milling Co. in the matter;
"That the amount plaintiff s.ues for is not disputed;
"That the employer, Southern Bice Milling Ce., paid unto the employee, Harris, weekly compensation until $129.ee had been so paid and thereupon, namely, on-Aprll 20, 1918,'conmutad : all additional weekly payments into a oash settlement ef ♦600.ee."

The question presented Is res neve, and there are ne decisions of the Supreme Court or the Court of Appeal on the legal questions presented. It arises under the Act ef 1914, amended In 1916. known as the Workmen's Compensation Law.

The first exception presented by defendant is an exoeptloa of no oause of action, as against the Southern Bloe Hilling Company, and that, In my opinion, Is decisive of the oase. Whether defendant, the workman, Harris, oonfessed judgment, and therefore the only one In contest now Is the Southern Bloe Hil-ling Company.

The act of 1914, Ho. 20, section 6, provides:

"During the first two weeks after the injury, the employ» er shall furnish reasonable medical, surgical and hospital servio# and medicines not to exceed $100.00, unless the employee refuses to allow them to be furnished by the employer."

This was amended by the act- of 1916,' section 4:

"The employer Bhail in every case furnish the employee reasonable medical, surgical and hospital service and medicines not to exceed $160.00 in value, unless the employee refuses to allow them to be furnished by the employer."

It will be noticed that the act is entirely between the employer and the employee, and not a contract as between third parties. In this case it is admitted that from the hospital the employee, Harris, went to his home, and his .wife summoned Dr. Lucas; that Lucas took charge of the ease, rendered treatment, and continued treating the said Harris until the employer, Southern Hice Killing Company, was apprised thereof, whereupon, and with the consent of plaintiff who admitted that Harris required additional medical treatment, the said Harris was placed by said Rice Killing Company under the treatment of its regularly employed surgeon and an orthopedist.

Our Civil Code provides, Article 2278: "Parol evidence shall not be received to prove any promise to pay the debt of a third person."

The Southern Rice Milling Company, having furnished hospital and medical services of its own to Harris, was under no obligation to Dr. luoas, the plaintiff in this case, to serve him, Lucas, -in any manner, without the written consent of the Southern Rice Killing Company. The company knew nothing of the removal from the hospital and never authorized same, and whatever services Dr. lucas gave to his patient Harris must be paid by the letter; and in no way, under the statutes quoted, or under the Civil Code, can the Southern Rice Killing Company be held responsible for the debt of Harris. He, and he alo'ne, must pay, just as he agreed to do, and the judgment against him of course remains.

February 18, 1919.

It Is therefore ordered, adjudged and decreed that the Judg-nent of the lower court, Insofar as the Judgment against Harris is oonoerntd. Is affirmed.

It is further ordered, adjudged and decreed that the Judgment against the Southern Hice Milling Company Is reversed, and that oosts he paid hy Dr. Lucas.

New Orleans, February


author: ¡¿a?. Dinkelsplel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    MRS. MARIE LOUISE BERNER, Widow of John J. Batt, versus HORTMAN COMPANY, Inc.
    No. 7464.
   O P I N I O N

¡¿a?. Dinkelsplel. Judge.

Plaintiff sues the defendant for this, substantially: — íhat she owned a double two-story frame sluted-roof -dwelling in the Sixth District of this city, in square bounded by Broadway, Spruce, Pine and Panola streets; that on or about the 6th of July, 1915, the Jackson 3uilding Si loan Association, h corporation under the laws of this state, contracted with the then firm of the Hortman Company to ereet a dwelling for plaintiff for the sum of $4850,00, and, amongst other things, the specification filed in the record in this case was "Build base-of ment of concrete as shown on plan, using one part/cement, 3 parts^f sand and 5 parts of gravel, using 5 pounds Hercules waterproofing, or equal, to each sack of cement on basement floor and all basement walls below the ground lines, providing drains as shown in basement plan. Basement must be guaranteed against leaks from water for a period of one year." She avers further that the basement which the defendant corporation obligated itself in said contract to construct for your petitioner, as aforesaid, was never in truth and in fact completed at the time of the acceptance of the improvements, but avers, tc the contrary, t)iat defendant, about sir, months or more' thereafter, endeavored to cure the defects in the construction thereof, and that the previous pretended completion occurred during the last week of September and the first week of October, 1915, so that the one year's maintenance stipulated in said contract and the accompanying specifications had not yet elapsed; that said basement had never given satisfaction, hut on the contrary, has never been free against leaks from water, and ¿hiring rainy weather has contained water forced from the outside into the basement at times to a depth of several, feet; that plaintiff made repeated and persistent complaints to the defendant to remedy the defects in said basement, to comply v.ith its contract and the te'rms of the specifications, and that the defendant frequently patched the basement and at one time laid an additional cement flooring over the one originally there, but all to no avail, and-without in any manner remedying the conditions complained of; that she is informed and believes that the defects in said basement cannot be remedied to comply with the contract made by the defendant, unless and. until the hot water heaters and wooden partitions arc removed, and the doing of other such, things, at a cost to your petitioner of £440,00, and for this sum plaintiff prays for judgment.

The answer of the defendant substantially admits that on or about duly 6, 1S15, it entered into a contract v;ith the Jackson Building & loan Association to construct for plaintiff t’-e double two-story dwelling, with basement, for the sum of '4850.CO, and farther, that the contract entered into by it to erect the dwelling prescribed above provides that It should construct .a concrete basement for said basement, and admits that it guaranteed said basement against leaks from the outside for a period of one year after its completion. It admits further that It is. responsible for the construction, and is willing and has been willing to remedy any defects, if there were say, in the construction of the basement. Defendant f.-u-ther contends that the'basement constructed for plaintiff was completed in accordance wit?; the contract and specification; that after said concrete basement had been completed, the Jackson building k loan Association, acting for plaintiff, found that it ia£ been eonstructed according to the contract and specifications, accepted same as satisfactory in October 1915, and that sometime after the acceptance of said basement by pisintiff's representative plaintiff complained that it was defective, that water case in from the outside through the concrete of said ■basement, end that defendant responded to this complaint and repaired some defects on each side of said basement which had been caused by the installing of the plumbing system after the completion, but that plaintiff continued to conplain, and that, in order to remedy any latent defect tbat might eiist in said basement, if any such defect did exist - which defendant denies - but in order to satisfy plaintiff, dcfenflantlaid another flooring in said basement, for which really there was no necessity, end still the plaintiff complained of leakage of the basement on one side, notwithstanding the basement is divided only by a wooden partition and both sides are identical in construction; that having assured plaintiff that it could not find the defect of which she complained, after repeated inspections of the basement, and that it would willingly remedy any defect that plaintiff would point out, plaintiff failed to point out any defect in said basement; therefore defendant asserts and avers that said basement has been completed in accordance with the contract and specifications, and there is no defect in the construction thereof,

Defendant further states that after very heavy rains it inspected the basement repeatedly and found no water therein, except on one single occasion, when they found that the check-valve, which would admit any water that would back up when the main sewer is full if left open, was open, so that water could .come Into the basement through said valve after heavy rains, and it avers that if any water was found in said basement after these rains, that that water must have come in through this check-valve, which was left open, and that it did not come in through any defect in the construction of said basement. Hence defendant prays for judgment in its favor.

The testimony of the plaintiff, KrB. Batt, is corroborated by the testimony of Leonard K. Goll, Robert F. Askew and R. S. ISelville. The latter gentleman's occupation, as stated by him, at page IE pf the testimony, is "water paying", and he had been engaged in that business for tee years in the City of Hew Orleans. He had examined the basement in the premises E008-E010 Broadway, owned by the plaintiff, and the first examination was in the month of June, 1916, and lastly Just before this suit was filed. On the last examination he found that the basement »howed dampness. There had been some rain on the Saturday prior to the examination, which occurred on the Sunday following. He goes on to explain:

"»c: What was the condition of the concrete or shillinger floor of that basement; was it all intact,, or did it show any evidence of breakage?
"A: It was not bonded to the original concrete base."

The court asked him to explain the answer, and he does so: "Well, there is a superficial top, if you wish me to eStplain, of cement, put on the original base. They build the basement first, and then put in this coating to repel the water. Whenever the water gets under this coating, it has that force and it pushes it up from the concrete base; in other words, it makes it sound hollow." And he goes on to say "It was not water-tight."

He was asked: "Do you know, or have you figured, what it would cost to put that basement in a water-tight condition?" and he answered: "In 1916 I made a price of $440.00, but it would cost more now." The witness goes on to say: "There were many cracks in every direction and the whole thing would have to come, up." This question vías put to the witness: "Vould the fact that the Claiborne Avenue Canal fills up to the top on every heavy rain, affect the pressure at all?" He answered: "Hot materially". On page 16 he was asked: "If the specification was lived up to, ought that to he a dry cellar?" He answered! "Yes, sir."

In answer to a question hy the judge, at page 16, this witness goes on:

"The superficial coating is completely gone. The water has pushed it up, and would have to he moved. The wall running parallel with Broadway is cracked in two places. This settlement crosses that wall and would have to he rebuilt, reinforced with a new wall on the inside, heavily reinforced with steel. The reason for reinforcing this wall is to overcome the action, that is the expansion and contraction due to temperature or movement of the building."
"fit Suppose this work had been done according to the specification, would this steel reinforcement - would you have to have that, if it was done according to specifications?
"A: If there is none in there, it should have been im there."

All the witnesses, without going into as many details as the witness Kclville, contractor, did testify substantially to the' same results.

ITow, the defendant himself, together with one Halter T. Eushnell, testified substantially that the basement was completed in accordance with the contract, was accepted by the as such, building company/ that frequent complaints had héen made, that in every one they had endeavored to and did, in their opinion, rectify and correct, and yet the complaints continued so long that, finding it impossible to do anything further, they refused to comply with the demands of the plaintiff.

V.'e are satisfied, from an inspection of this record, and from the evidence and the faots as adduced, feat one of fee real causes, if not the main cause of the trouble, was seepage, and that, as described by the Century Dictionary, is: "Percolation; oozing fluid or moisture; also, the amount of a fluid that percolates: as, the seepage is great.”

1919.

The judge a quo, today the eldest judge on the Civil District Court, with large experience, erudite knowledge; a close observer and hard student, having seen a.id heard the witnesses, has determined in his judgment that plaintiff's complaints were just, and we quite agree with him.

JBD3ÜE2Í ARFXEMED.

Dew Orleans,


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    CHARLES P. CLAIBORNE, JUDGE.
    LOUIS BAGNERIS VS JOHN ODDO, APPELLANT.
    No. 7471.
    April 17th, 1919.
   CHARLES P. CLAIBORNE, JUDGE.

This is a suit to annul a judgment confessed by the defendant in favor of the plaintiff herein.

The original petition of Louis Bagneris alleged that An Oddo mas indebted unto him in the sum of $830.90 for meat sold and delivered to him as appeared by the confession of judgment annexed.

The confession is written in ink on a half sheet of legal cap and is in the following words;

"St Bernard Parish, La.,
May 30th, 1917.
I Hereby certify that I am indebted unto Louíb Bagneris in the full sum of Eight hundred and thirty 90-100 dollars, and hereby confess judgment to said amount, and I further waive all legal delays and citations and ask that judgment be entered against me at onee.
Respectfully
his
John x Oddo
mark.
Witnesses to his mark:
M. Gonzales, Jr.
Louis Bagneris.
Signatures acknowledged before me Notary this 30th. day of May, 1917.
Signed: L. Pred Andry
Notary Public".

The petition was filed June 6th, 1917 and judgment was rendered against John Oddo and signed on the same day, - for the amount oonfeased.

On July 3d following, the defendant, John Oddo, enjoined the execution of the judgment, and prayed that it be annulled. He alleged that he was not indebted to thd plaintiff Bagneris in the amount of $030.90; that he never purchased any meat from Bag-neris; that "the truth was that about three years ago he signed a guarantee in favor of the said Bagneris whereby he was to guarantee to the extent of $400 payment for the purchases of meat made by his- son Anthony Oddo; that on or about the last day., of May, 1917, the said Bagneris informed petitioner that the original obligation had .expired, and that he wanted it renewed, and when petitioner affixed his mark to a document on the last day of May 1917 petitioner was informed and led to believe that he was merely signing a renewal of the original obligation which he had signed three years before, that is to say, petitioner's guarantee that his son's, Anthony Oddo's, indebtedness to the said Bagneris, up to $400 would be paid; that he would not have affixed his mark to any document, nor to the so-called confession of judgment had he known its true meaning and purport, or the contents thereof; that he does not know how tcjyfread or write and relied.solely upon the representations made by the said Bagneris that he was signing the renewal of the original ooligation or guarantee up to the sum of $400, and that he was binding himself as surety ■for his said son and would be responsible for bills or purchases made by said-Anthony Oddo, his son, to the extent of $400 and no more, should his son fail to pay hi3 indebtedness; that the so-called confession of judgment was fraudulently obtained".

Bagneris admitted the confession of judgment but denied all the other allegations of'the petition.

There was judgment in favor of Louis Bagneris and against John Oddo dismissing .the petition for injunction and setting aside the injunction.

A motion for a new trial was denied and John Oddo has appealed.

The guarantee mentioned in Oddo's petition is written in indelible pencil upon a bill-head of L. Bagneris, ornamented with a large bull's head on the left hand top comer. It’reads as follows:

"St. Bernard Parish, La.,
July 8th, 1914.
Be it known by all these present that 1 bind myself for the purchase of all meat or cattle purchased by my son Anthony Oddo on iky name from Hr. Louis Bagneris up to the amount of $850.00 and it is further understood ■ that said cattle or meat will he charged to me and in my name".
Respectfully
his
John x Oddo
mark.
TOthesses to mark
Manuel Gonzales, Jr.
Louis Bagneris.

The guarantee is in the handwriting of the witness Manuel Gonzales, Jr.

Prom the testimony of John Oddo, we gather that he is 77 years old; that he has been in this country about 30 years; that he was engaged in the business of selling bananas, wood, and charcoal; he does not speak English very well, nor does he understand every word that is spoken in English; on his examination in English, he answered in English for some time and afterwards through an interpreter; he can neither read nor write; he is a man of family; he oes not know how old his children are, some of them were born in Italy;,he ha3 retired from business for the last ten years on account of age; he never did any business with Bag-neris; he met him some three years ago and signed a paper for $400 as a guarantee for his son; he signed the paper down at the Barracks next door to the barroom; there were present his son Tony, and some gentleman; Louis Bagneris wrote the paper; it was written in ink; he was asked to sign the paper; he told them he could not write;so Bagneris signed the paper and after signing it he read it to him as a guarantee for $400; his son knows how to sign, but he does not read or write much; he went to school here; his son was born in Italy; he does not know his age; the next time he saw Bagneris was when his son toid him Bagneris wanted to see him; he went with his son to see Bagneris, and met him next door to the barroom at Bagneris' place of business; his son and Bagneris did the talking; he listened; Bagneris told hi» "he was going to renew the paper he had signed three years ‘before"» he asked Bagneris whether his son owed him anything and he said, no; during this conversation there were present only "him, his son, and Mr. Louis"; then Mr. Andry came in with a paper already written out and told him: "Just touch the pen"; and he asked Andry to read to him what he had signed, and And.ry folded the paper up and told him he was in a hurry and had no time and went off; he did not know what he had signed; Bagneris and Andry signed the paper; Gonzales had signed it before; Andry kept the paper and took it along with him; it was written in pencil; the first document, the guarantee was written in ink; the confession of judgment annexed to the petition is not the paper to which he affixed his mark; he saw Bagneris only twice in his life; on -the occasions of signing the guarantee and the alleged confession of judgment; the last paper he signed had "like a cow* on the papery like the document for the guarantee, he cannot rememoer seeing a paper like that purporting to be his confession of judgment; Bag-neris told him he had lost the original guarantee*

Anthony. Oddo is 43 years old; wént to school very little; does not know how to read or write; can sign his name so anybody can understand it, that is about all; has been a meat butcher for 18 years; has been dealing with Bagneris a little over three years) his dealings commenced in the following manner; He went to see him on a Wednesday, and asked him if he would like to buy for him; Bagneris answered yes provided he gave security; so on Friday he went with his father, and Bagneris wrote up a pape^ for $400; and his father just touched the pen; Bagneris wrote the paper on a small bill head, and read it out; he turned his hides over to Me Shane; the business was done in the name of John Oddo; the Dili head filed in this case, the guarantee, is not the one his father signed, because the bill head he signed was sn&ller and was written by Bagneris while the one filed is written by Gonzales or Mandy and the one his father signed was for $400 only; later^on a Monday, Bagneris told him that the old paper which his father signed, was getting old and that he would like tto have it renewed; on Tuesday he went to Bagneris with his fa-ttiear; his father asked Bagneris whether he owed him any money and Bagneris said "no, what little he owes, in one or two months he wilD pay that up"; after that Bagneris sent his clerk «Sandy (Gonzales) for Mr. Andry; Lir. Andry came in with some paper and made his father sign with his cross; his father asked Andry to read the paper; Andry said; “That's all right, that's that old paper you signed and renewing it over again"; the paper was not read to him; Bagneris told him he was going to renew the old paper; the confession of judgment is the paper he refers to and he recognizes it; he never saw the document filed in this case and purporting to he his father’s guarantee; that is not the one his father signed,

Salvadora Oddo, a eon of the plaintiff, 48 years old, says that some three years ago he v/as told that his father had called on Bagneris at the slaughterhouse; he asked Bagneris what it was for, and Bagneris told him; "He just come down to sign a note as guarantee for your brother for $400"; after the suit was filed he met Bagneris and olaraed him for suing an old man Dike his father, that if he had come to him he could have paid that little bill for $400, and Bagneris told him his orother knew all about it; he never spoke to Bagneris aoout his father's business except on those two occasions.

Sylvain II. Bouche testifies that one day while he v/as v/aiting in Bagneris' office, Anthony Oddo and his father were there signing some papers; Bagneris told him afterwards that the old man had signed $400 security for his son; that was in May or June 3 914, on a “Friday; he had never seen John Oddo "before, nor since, escept on this day; he is not on speaking terms with Bag-neris.

Andrew J. Me Shane is in the hide business; he oought hides from John Oddo; the man he dealth with is Anthony Oddo, although he always knew him, and dealt with him, as John Oddo; his first transaction with him was in May 1914; recently, under orders from John Oddo all checks due to him were delivered to Bagneris; he cannot say what v/as done years ago, because his oookkeeper is dead.

Louis Bagneris testifies that the meat was sent in the'name of John Oddo because he was security for the meat; the hides were also sent to Me Shane In his name; everything was on the name of John Oddo, because Anthony Oddo was on the hlaok list and could not buy in his name, because he owed the merchants; he never stated to any of Oddo's sons, nor to anyone else, that the security he had was for $400; if his security had been only for that amount he would not have extended the defendant credit to the extent of eight hundred and some odd dollars; John Oddo affixed his mark to the confession of judgment in his presence; it was read by Mr, Andry in the presence of Manuel Gonzales, John Oddo and his son; prior to the security he dealt with Anthony Oddo on his rpomise to fetch his father to sign a guarantee; the witness Bouche gave him a c#eck on a bank in which he had no funds.

Manuel Gonzales is clerk for Louis Bagneris for the last six years and a half; the guarantee dated July 8th, 1914 is in his handwriting and witnessed by him; John Oddo made his cross to it in his presence; the confession of judgment is written by Mr. Andry; he saw Oddo affix his mark to it, and he witnessed it; the meat was bought in the name of John Oddo and delivered also in. thatnane; Mr. Andry read out the confession of judgment to Mr. Oddo and his son and himself, and he witnessed it and signed it.

L. Fred Andry, Notary Public, swears that the confession of judgment dated May 30th, 1917,. is in his handwriting; that it was signed oy John Oddo and his mark affixed in his presence, and also by ¿íannia Gonzs,les and Louis Bagneris in his presence; ft. Was that document read to John Oddo? A. Absolutely, yes. ft. Read by you? A. Yes, sir. ft. Any objection' made? A. None at all.

John Oddo does not deny that he signed a gúarantee for his son; he admits thnt he signed one for $400; his only denial is that he signed for $850. His testimony and that of his son upon this point are contradicted by Bagneris, by Gonaales, and. oy the surrounding circumstances. John Oddo and his son are also contradicted, and. we think successfully, upon the matter of the confession of judgment, as we shall Show, and this contradiction affects their credioility as regards the guarantee. But after all this guarantee is only an element leading up to the confession of judgment and is not the foundation of the judgment. The judgment mii.ht stand even without the guarantee.

The judgment based upon the confession is attacked upon the ground that John Oddo did not know what he was signing, that he cannot read, and that the confession was not read to him, and that he was led to believe that he was renewing an act of surety-ship -, and that he did not owe the debt he acknowledged owing.

The law does not look with favor upon such attacks. It has been repeatedly held that it will not avail one to allege that he did not know what he was signing, or that he does not know how to read. 22 A., 14; 26 A., 594; 34 A., 730; 35 A., 850; 855; 33 A., 1429; 36 A., 476 (477), 620; 37 A., 553; 41 A., 18; 106 La., 790; 117 La., 390 (339); Cooley on Torts p. 488.

In 41 A., 18, the Court said:

"If he read the act there was no excuse for error; if .he did not read it, such gross negligence would leave him with still less excuse".

In 117 La., 399, the Court said:

"Moreover if the defendant could read, it devolved . upon him to read it; if he could not^read, then it devolved upon him to have it read to them- and to 3.isten attentively while it ms being read to him".

In 106 La., 790, the Court again expressed itself:

"We have only to say that the law does not compel people to read or to inform themselves of the contents of instruments which they may choose to sign, but that, save in certain exceptional cases, it holds them to consequences in the same manner and to the same extent as though they had exercised those rights".

The presumptions 4£ that parties are aware of the contents of writings to which they hayo affixed their signatures. This presumption grows when applied"to a man 77 years old, assisted by his son 43 years of age. The burden of proof is upon them to establish with reasonable certainty that they have been deceived. In this case there are several discrepancies between the testimony of the father and of the son. The father says Bagneris answered that Anthony Oddo owed him nothing; Anthony Oddo says Bagneris' words were: "no, what, little''he owes, in one .or two months he will pay that up". Again, the father testifies that Andry did not read the confession to him oecause he had no time and was in a hurryj the son testifies that Andry told them that it was nothing hut a renewal of his guarantee. The father says the confession was written in pencil, and had something like a cow upon it, and the paper annexed to the petition is not the one he signed; the son, on the contrary, recognizes the paper as the one his father signed.

But it is not sufficient for a plaintiff to allege irregularities in the method of obtaining a judgment. He must show that he had a defense to the suit and that it would he against good conscience to execute the judgment. 3 A., 646; 6 A., 799; 15 A., 273; 18 A., 497 (507); 28 A., 51; 48 A., 1529; 1 H. D., 641 18; 2 Story Equity 887.

"A court of equity does not interfere with judgments at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or hi3 agents". 58 U. S., 442.
"A court of equity will not interfere with the enforcement of a judgment recovered at law, unless it is unjust and unconscionable; and therefore such relief will not be granted unless the complainant shows that he has a good and meritorious defense to the original action". 23 Cyc, 1031 14 - id p. 991 9 - B and numerous authorities in support of the proposition: 30 Cent. Big. title "Judgment" 849.
"In order to obtain equitable relief-against a judgment rendered on the .consent of the agent of an absent defendant alleged to have been fraudulently ootained it must be averred and shown that til ere is a valid defense on the merits. 110 U. S., 184 (187).

In the case under consideration, John Oddo alleges under oath, in his petition, "that he is not indebted to the said Bagneris in the amount claimed by him and alleged to have been confessed by him". That is technically tin#, because the debt was that of his son. But he was -,hs surety for his son, and therefore liable for his debt. In no part of his testimony does Anthony Oddo deny that he is indebted unto Bagneris in the sum of the judgment, say $830.90, or that it would be unconscionable to execute the judgment.

The judgment of the District Court is therefore affirmed.

April 17th, 1919.


author: By hi* Honor John St. Raul.

text:
    NO. 7473.
    WIDOW ALBERT FEARCE VS NELSON CO-OPERATIVE ASS'N.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OBJHIOH.

By hi* Honor John St. Raul.

Plaintiff was negligently run into and Injured By one Hunter whilst the latter was alleged to he going about defendant's finesa and riding a bioyole said to belong to defendant.

'•'The only evidenoe in this reoord as to the ownership of the , bioyole, tends to show that it did not belong to the defendant but to Hunter himself- But the ownership thereof is of no consequence the real question in determining the liability vel non of the defendant, being whether at the time of the ooourrenoe Hunter was engaged on defendant's business or on his own. (Cusimano vs Durnin, Ho. 7457 of our docket; Marullo vs St Rasteur, Ho. 23024 Supreme Court both just decided)

That Hunter was in the employ of the defendant at the time of the ooourrenoe is undisputed, he being manager of the defendant's m'eat-8tand; but the only suggestion that the collision occurred whilst bí/was in the performance of stime duty for defendant is merely by way of a deduction from the fact that the bioyole was admittedly purchased for the express purpose of delivering meat for defendant and was used daily for that purpose by the boy who made Buch deliveries.

But there is no evidenoe to show that Hunter himself ever personally delivered meat, and he swears that on this occasion he was not doing so, and was not otherwise attehding to any business for defendant but had been upon an errand of his own from which he was just returning when tho collision ocourred.

This testimony is even corroborated by that of a fellow employee and is wholly uncontradicted; so that there is no basis whatever for-a judgment against defendant on the theory that it is liable for the acts of its servant done"in the exercise of the functions in whioh he is employed " C. C. 2320.

April 1919.

Uor did the District Judge.thins so, On the contrary in his reasons for judgment he said; "The wrong-doer Was an employee of iielson fine.) and claims that he was riding his own hike either to his own breakfast or delivering.his laundry. In either event he was doing it in his employers time and with his consent tacit 'or otherwise, and was expediting his employers business by'preventing loss of time duo him by Hunter."

In other words the trial judge thought that by hurrying back to his work instead of taking his leisure\ Hunter was acting in the interest of, and hence for account of, his employer who should therefore be held answerable for him.

But this view does not appeal to us and seems untenable without upsetting the long line of authority cited in the tivo oases heretofore mentioned, and inoidently approaching towards the doctrine that an employer might be Háble for the acts of his employees not only whilst "in the exercise of the functions in which they are- employed, " but also during the time for'which they are employed and in going to and returning from such employment.

The judgment appealed from is therefore reversed, and it j.s now ordered that the plaintiff's demand be rejected at her costs in both courts.

Hew Orleans la,


author: Max Blnkclsnlel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    SOUTHERN SCRAP MATERIAL COMPANY versus LIQUIDATING COMMISSIONERS, CARON-DELET CANAL & NAVIGATION COMPANY, In Liquidation, and NEW ORLEANS BREWING COMPANY.
    No. 7476.
   opinion

Max Blnkclsnlel. Judge.

_ Plaintiffs filed their suit in the Civil District Court 'mu July 24, 1912, claiming that they were the owners of a iooowotfvw \orane, consisting of one boom, one revolving, turn-table founds*» tlon (A) frame, weights and srtra boom, being a complete loooao» tive crane, except boiler and engine; and also the owner of the rails on which the said crane rested; that they purchased this property from A. Philbrick, liquidator of the co-partnership of Philbrick, Dunn 8> Company; that the property was on the premisos Of the new Orleans Brewing Company, oorner of Second and Claiborne streets. They further aver that the firing Company, acting oolla» sively with the liquidating Commissioners ’of the Carondelet Canal & navigation Company of Hew Orleans, In' liquidation, attempted to sell and deliver said property to the said liquidating Commisbion-ere of the Carondelet Canal & navigation-Company, though at the time the said Hew Orleans Brewing Company knew it had no title to the said property or any part thereof. They allege further that the liquidating Commissioners of the Canal Company, though repeated demands had been made for said property, refused to tarn same over to plaintiffs, the owners; contending, further^that the value of the said locomotive crane, as heretofore described, was worth the sum of J15CC.00, and that petitioners should have judgment decreeing them to be the owners of the above described property, end the property returned to them in the condition in which the same was when it was removed from the premises, or, in lieu thereof, that, in the alternative, plaintiffs have Judgment in solido against the Hew Orleans Brewing Company and the liquidating Commissi oners of the Carondclct Canal 8> Navigation Company of New Orleans in liquidation, in the sum of $1500.00, together with legal interest from January 14, 1915; that as the liquidating Commissioners of the Carondelet Canal & Navigation Company have refused to deliver to your petitioners the said dredge and appurtenances, and are using the same, though they are fully aware of the fact that plaintiffs were the true and lawful owners of said property, and that same has been in actual use by the said liquidating Commissi oners of the Canal Company since the 1st day of duly, 1915, and that said liquidating Commissioners know that ultimately Judgment will he rendered against them decreeing your petitioners to he the owners of the dredge and appurtenances, that said liquidating Commissioners stop to continuo to use the said dredge or appurtenances while thése proceedings are pending; that your petitioners are entitled to'collect rent for the use of said dredge, at the rate of -$EG.00 per month daring the time that said dredge is in use, from July 1, 1913, until final judgment. Averring further, that in the event said defendants, or either of them, should elect to return to your petitioners the said property unlawfully taken, then petitioners should he entitled to legal interest from January 14, 1913, upon $15CC.C0, the value of said property, up to sr.fl including the date on which the court should decree that said property should he returned to your petitioners.

ilaintiffs further contend that the acts of said defendants constitute a wilful and malicious interference and uni87/fui taking of your petitioners' property, without color of authority or title, and therefore petitioners shou'd have further Jud-ir.cr.t, hy reason of the wrongful sets of the defendants, in solide, for the further sum of $1,C00.0G, as punitory damages.

They pray for citation, and for judgment in accordance with the allegations of the petition.

On October 14, 1913, the liquidating Commissioners, for answer to tho petition, appear and deny the ownership of plaintiffs to the dredge in question, and, in the 4th article of the answer, assert and deny that there was a collusive understanding between the Hew Orleans Brewing Company and themselves as to any matter, and particularly as to the matter set up in the aforesaid specification; admit that they purchased from the Hew Orleans Brewing Company, on or about the £lst of February 1.913 - the sale being consummated on April 2, 1913, - certain second-hand material, to-wit: one turn-table, one boom, one set of wheels for the said turn-table, for which they paid the Brewing Company, on April 10, 1913, the slum and price óf Í100.00 cash, and especially averring that they purchased the aforesaid property in good faith, believing the same to bo the property of the Hew Orleans Brewing Company. In answer to the 5th specification of plaintiffs' petition, defendants deny that they bought from the Hew Orleans Brewing Company, or that they have ever used or had possession of, any of tho property described in the aforesaid specification by the plaintiffs, except only the property named in the 4th paragraph heretofore alluded to; and they aver that tho property admitted hy them in the 4th paragraph of this answer to have been so purchased was purchased hy them from tho Hew Orleans Brewing Company in good faith, for a valuable consideration, and has been incor-poaated as an integral part of the dredge-boat, and could not he separated from the property of defendants, and that plaintiffs are without right or power at law to cause them to so deliver up tho aforesaid property, or to do anything more than to pay the value of said property. They further contend that no demand was made upon them to deliver up to plaintiffs any part of said property previous to such property being incorporated as an integral part of said dredge-boat, and they deny plaintiffs' right to demand or cause suoh delivery to plaintiffs of said property. They further deny that twe property in question is worth -J1500.00, and aver that same, when purchased from the Hew Orleans Browing Company, was not worth more than the sum and price paid for it. to-mit, f 10(4^0.

Defendants deny, further, that plaintiffs are entitled, in view of the facts hereinbefore stated, to any judgment against them in any sun- whatever. They specifically deny that they were aware that plaintiffs were the true and lawful owners of the property described, but they admit that the property has been in use by them since before the first day of July, 1915, for the purposes mentioned, as a part of a dredge, and assert that defendants had a lawful right to use the said dredge without hindrance from eitZoer the plaintiffs or anybody else, "hey deny that plaintiffs are entitled to collect any rent for the use of said dredge; averring further and denying that they had unlawfully taken or were un~ lawfully using any property belonging to plaintiffs. They deny the value of the property and that plaintiffs are entitled to any judgment against them whatsoever. They deny also that there was a wilful or malicious interference or unlawful taking of plaintiffs' property without color of authority or title, or that plaintiffs are entitled to punitory damages, but aver, on tbe contrary, that they have acted in good faith.

TZney go on to recite, as heretofore stated, that in January or February of 1913 they required certain parts of machinery to complete a dredge-boat, which defendants proposed to construct for use in connection with defendants' property, known as the Carondelt Canal and Bayou Si. John, and having heard that the Dew Orleans brewing Company had such machinery, or parts of machinery, required by them, lying in an open lot at tbe corner of Claiborne and Second streets in this city, exposed to the wind ”;ather¡ apparently abandoned, and to ail intents and purposes notring more -v less than second-hand machinery, apparently taken from one of said Brewing Company's plants, and t’-at certain parts of same might be applied to their purposes, that in the month of February thev ¡.'fide a proposition to the Dew Orleans Brewing Company for the purcZoase of the property described, and subsequently bought same, as stated, for $100.00, from the Dew Orleans Brew-lug Company* and paid for the same; that subsequently, about the 5th of liar eh, 1913, before they had removed the said property from the lot at Second and Claiborne streets, plaintiffs having notified the brewing Company that- they had bought the said property, the said Brewing Company requested the defendants not to remove the said machinery until they could have the matter- straightened out; that on April 2nd. of the same year, having received a letter dated that day, with a bill attached for the $LGO.00 covering the purchase price-, they paid the same, and. therefore considered and believed and assert that their title was absolute, so far r.B they were concerned.

They pray that if any judgment be rendered in this case against them, that they call the Hew Orleans Brewing Company in warranty to defend any actions or suits, and that whatever judgment be rendered against them be paid by the Browing Company.

The Hew Orleans Brewing Company, on October 16, 1913, -after excepting to the petition as being too vague, general and indefinite to enable then to answer, - which exception was overruled, answered, denying all the allegations of plaintiffs' petition, in like manner as did the liquidating Commissioners of the Canal 3b navigation Company, asserting, amongst other things, that the property consisted of a lot of junk vihioh fhilbrick & Bunn, or some party representing them, placed upon the lot belonging to defendants At the corner of Claiborne and Second streets, in this city, temporarily and purely at the sufferance of -the defendants, and for the use of which said parties agreed to pay the Brewing Company the sum of $2.00 per month rent, and did pay up to and inclusive of August 9, 1909, but since that date nothing has been paid on account thereof, although defendants endeavored to collect- same, until they lost sight of ail the parties in interest. They allege further that under the law they had a’lessor's lien and privilege, and right of detention and pledge upon the said junk, but that the value of It was such that a resort to court prooeed-ings-to sell same under provisional seizure would have teen pro-hititive in cost, and would not have availed either the defendants as the lessors of said property or the owners at the time, and therefore defendants had a disinterested expert to appraise said property, hy personal inspection, and the report was that the same, at maximum, was worth possibly $100.00; that upon the strength of this report, and not having at the time heard from the owners of the junk, they sold to the C¡mal Company the property in question for-the price- and sum of $100.00, which was a fair and true -value, and which they intended to hold as an off-set to their claim for the use of the premises since August 9, 1909, at the rate of $£.00 per month, and to tender to said owners, should they ever appear thereafter, the difference in cash; that there was nothing hidden or clandestine in the matter, tut the entire transaction was detailed to the liquidating Commissioners of the Carondeiet Canal & navigation Company, and that defendants have always teen willing to make a just, true and equitable settlement with the owners of said junk whenever they should appear, They deny that the Southern Scrap Material Company, plaintiffs, ever bought from the owners the property in question, to their knowledge, or had ever made known to them that they were contemplating a purchase, or at any time attempted to obtain delivery of the property in question; hut that plaintiffs waited until after the property was removed from the premises and the lien of respondents for rental was extinguished hy prescription before plaintiffs attempted to take any action. They aver that plaintiffs then instituted the present suit for an inflated amount, exceeding twenty-five times the value of the property herein sued for, and attempted thereby to obtain a better legal title than their vendor had; - that plaintiffs had ample opportunity to ascertain the true facts, arid defendants allege that they did know the true facts, hut if they did not they were guilty of the grossest laches and negligenoe in not having ascertained same, in not attempting to remove the property from the premises, and in not apprising either the defendants or the liquidating Commissioners of the Oarondelet Canal & navigation Company of their purchase of saici property,, until, hy acts which they superinduced, they a’t your respondents and the Oarondelet Canal Tt navigation Company in a position which they would net otherwise have assumed; an." for all o? which said acts superinduced hy said plaintiffs defendants plead estoppel.

As in all controversies of a similar character, much testimony was taien, pro and eon, particularly in reference to the value of the dredge in question. It would he useless and idle to enter into details of what different witnesses for and against have testified to in this ease, which has been in court now since 1913.

She plaintiffs have foregone their suit for rent and punitory damages, and insist no¶ that $1600.00 is the amount that they should have judgment for in this case. Several of their witnesses, including Diefenthal, the vice-president of the corporation, have sworn that *15CC.00 was a fair market price for what they contend the machinery was worth. They admit that they bought this machinery for ÍJ5C.00, and, having made a good bargain, as they had a perfect legal right to do, that being a part of the business of the' plaintiff company, they see no reason why, under the lavi air.i the facts as they believe they have established, they should not obtain judgment for the amount claimed, borne of their witnesses have testified to the value as sted by IXr. Diefenthal; others again valued it at $1100.00 or $1200.00. The fact remains that tie lieu Orleans rrci.ing Company, who at one time had a lien and p.-ivil'-gc for rent, and Who sold it for $100.00 to the Carondslet Canal Ih-vigation Company, had it appraised, ur.S the highest value was fasm $75.00 to $100.Go.

It is established X.c-yond the peradveuturs of a doubt that this same property had been on a vacar;" lot at Scc-ond and Claiborne streets from about the year 1908,, osmosed to tbs weatliess1 during all this time, without any. claimants} that up to 1ÍS68 rent wss paid, tut from that time on to the present not O íc.íSj'f? of rent had ever been paid to the Hew Orleans Brewing Ofisspistijr for keeping this property on thoir lot. .Burthor then ttet, pSáí:®* tiffs bought, either in the latter part of Becembor 1913 cos ttj® beginning of January 191S, for $E0.00, and after purakaglngi, lusad" ing where the property was located, knowing that the Van Gp'h'*vn Brevfing Company were the owners of the lot in question,, they made known their ownership until the sal® of the property by t-h:Hew Orleans Brewing Company and its partial removal by th'’ p-we--chasers, the Carondelet Canal & Havigation Company. They kept quiet. Why? That is a question for their own determination. Xt certainly has not been disclosed in this case. But after the sale, and the first removal of a part of the machinery, then, and not until then, through a telephonic communication between an off!** cer of the plaintiff company and the Brewing Company, was ,the Brew® ing Company informed of the ownership by plaintiffs. And the moment the Brewing Company got this notice, after having sold to the Carondelet Canal & Havigation Company, as hereinbefore stated, they immediately notified the vendees of the notice that thoy had received from plaintiffs, and the vendees stopped the removal et ■once; and not until April following wa3 the deedge finally removed, when the Hew Orleans Brevdng Company sent their bill to the Bovigotloa Company for the price agreed upon, to-wit, JlOO.00.

Upon this statement of facts, as we assert them to be, us cannot conceive hov; it is possible, under any circumstances, for machinery of this character — call it what you will, Junk or otherwise — to have the value attempted to be put upon it by-plaintiffs and their witnesses in this cause.

His Honor, the Judge of the court a juo, a onrefej., oxporíi'no.;’, painstaking Judge, in his opinion, amongst other things, makes t-bir.! statement; "There was considerable evidence showing the vnlo.í'iiíi» of the property in question. It varies from that of ordinary te ¿1500.00. Of course, there is considerable doubt in the mind of the courT. whan I fix the amount, hut the court is compelled to fix a sum, which it will do at ¿600.00." And the learned judge gave a Judgment against both defendants, in sólido, for that sum.

April 1919.

'.Ve cannot ggree v.ith our learned brother to the sum fixed by him as the value of this# property. On the contrary, v.e believe that all parties in interest have fixed the price themselves; first, the plaintiffs, purchasing the sum of ¿50.00, and'then .the Hew Orleans Brewing Company, soiling it after an apprai3oment of the sum of ¿100.00. V/e can conceive of no better was of arriving at a determination of tho value than giving the highest estimate, which we fix at the sum of ¿100.00.

The judgment appealed from is therefore reversed it is now? ordered that there be judgment in favor of plaintiff and against both defendants in solido for the full sum of ;*>100. with legal interest from Judicial demand and the costs of the court a qua, plaintiff to pay all costs of appeál.

It is further ordered that if the Carondelet Canal Co pay this judgment it &ave■judgment for like amount against the Hew Orleans Brewing Company.

Hew Orleans La,