author: CHAHLBS T. CLAXBORHI, JUDOS.

text:
    By CHARLES P. CLAIBORNE, Judge.
    SUCCESSION of FRANK A. VON PHUL.
    No. 7378.
    November 25th. 1918.
   CHAHLBS T. CLAXBORHI, JUDOS.

Under tha following advertisemmt of sala: "the rlgit of occupancy of the premises expiring September 30th. 1917 at fifty Dollars par month"^Hro. C. S. Taldnar became tha adjudicates. Sha question praeented is^what ara har rights and obligations? Has aha acquired tha right to occupy tha premisas on payment of (780, or must aha pay (750 and tha rant besides?

She facts ara as follows: Trank A. Von Ihul died April 4th.; tha administratrix of his succession caused an inventory of the property left by tha deceased to ha made. It 'consisted, in part, of the contents of a drug store, ex» plotted by the decease^ which were appraised at (884.15.

She administratrix presented a petition in which she alleged; "that among the effects left by .the said Trank A. Von Fhul is a drug atore located at Canal and Dopes Streets xxx that this drug store prior to the death of said Von Ihul was actively operated and that since his death the said drug store has been closed, x x x that the rent on said premisas continues to run at the rate of (50 par month, and that same is expensive to keep in its present condition and is a loss to the estate; x x x that the lata Trank A. Ton Ihul ocoupiad the said premises under an agreement with Hr*. Veldner under which agreement the said VOn Ihul. wae to occupy the said premises from Ootober 1st.1915 up to and including September 30th.l917 at a rental of (50 per month; x x that the oontents of this-drug store, as is shown by the inventory, as well as the right of oooupanoy, should ba sold as a going oonoem and in 81obo at one and the same time".

Sha also avarrad that there were a lot of furniture and other effects contained in said premises which should also ha sold, and she prayed for an order for the sale of said property for cash.

An order was accordingly granted for the sale of "the movable effoots set forth in the petition".

It is admitted that the auctioneer advertised the thing to he sold as "the entire contents of the drug store Ho. 3120 Canal Street occupied by the deceased F. A. Von Fhul, and the right of occupancy of the premises expiring September 30th. 1917 at Fifty Dollars per month."

lira. Feldner heoams the adjudicates on June 2nd. 1916 for $750 Cash.

A number of witnesses testified that the auctioneer, prior to the crying, announced orally that the purchaser buying the drug store should assume the rental at Fifty Dollars per month until the expiration of the lease. The proces-verbal of the auctioneer so states.

Mrs. Feldner states that she did not hear this announcement.

He do not consider it neoessary to determine whether this announcement was made, or whether the fact that it was made was admissible in evidence. Ve have come to the conclusion that the sale "of the right of occupancy of the premises expiring September 30th. 1917 at Fifty Dollars per month" meant that the purchaser was to pay $50 a month for the privilege of occupying said premises until September 30th. 1917. It was the same as if the advertisement had said: "the right to occupy said premises for a period expiring September 30th. 1917 at the rate of $50 per month". The parties selling the right, and the purchaser of it, under» stood it that way. The succession had no title to the right of occupancy up to September 30th. 1917, a period of fifteen months from the day of sale and of eighteen months from the day of the death of Von Fhul and therefore could not sell it. It had not paid the rent up to that time and could not pay it. Ho one knew this better than the purchaser, Mrs. Feldner, who was tha owner of the property. Under the law»<Act 128 of 1894 p. 163 - the lessor's privilege could not extend to secure rent for a term of more than one year after the death of Ton Ehul, or after April 4th. 1917, and there» fore the succession could not acquire and could not transfer a longer right of occupancy, or a right of oocupangy // . extending beyond April 4th. 1917^. There waa "no certainty that the assets of tho succession would he sufficient to pay the rent even to that time, as the succession was admittedly insolvent. Von Phul had hound himself to pay Utb. Peldner #760 for the right of occupancy from June 2nd. 1916 to September 30th. 1917, or for fifteen months at #50 per month. The contents of the Drug Store were appraised at #884.16. The two combined represented a value of #1634.15. A year and a half before^ lira. Peldner herself had sold the drug store to Ton Phul for #3250. It is not possible that the auctioneer and Itrs. Peldner understood that the one was selling, and the other was acquiring something of that value for the price of #760. The price shows conclusively that the bidders understood that they were acquiring the stock of goods and the goodwill of the store for #760, and the right to occupy the store up to September 30th. 1917 upon the additional payment of #50 per month.

In the case of Talker vs Dohan 39 A 743 the thing sold was "the right of occupancy from the day of sale to the 30th. of September 1886". In the case of Villavaso vs Their Creditors 48 A 946 the court said, on p. 949: "The difference between buying a lease and purchasing the right of occupancy merely was drawn in Walker vs Dohan 39 A 743. Te find no warrant to hold that the purchase of the privilege of occupancy offered, with no reference to liability under the lease, imports any obligation on the part of the purchaser exeept to pay his bid*. In the case of Marfese vs Nelson 10 Ct. Appeal 288 (291) - the plaintiff seized and sold the "right of occupancy", without explanation or qualification of any kind.

Ve have therefore come to the concl of the right of occupancy at #50 par month obligation to pay the future rent over and above the price of adjudication and was tantamount to a sale of the lwaso.

She leaaor lira. Peldner having purchased the lease, the qualities of t$ty, debtor and creditor were united in her person and put an end to the lease after June 2nd. 1916 - 7 A 610; 11 A 433; 48 A 946, 949, 950.

She Administratrix filed an account in which she charged Urs. Peldner with the amount of her bid $750, crediting her with $103.33 being rent for the two months of April and May and two days in June 1916 -, leaving Urs. Peldner liable to the Succession in the amount of $646.67.

Urs. Peldner opposed said account, claiming rent from April 1st. 1916 to September 30th. 1917 or eighteen months or $900 - and $40.50 costs expended by her in prior proceedings herein.

Joseph S. Vinson also opposed the aocount claiming to be a privileged creditor for the sum of $613.32 for salary due him as clerk and general manager of the drug store of the deceased at a salary of $100 per month from October 1st. 1915 to April 4th. 1916.

The Ueyers Printing Company claim $109.50 instead of $56 for which they are placed upon the account.

V. V. Klein claims $70.40 for money paid for account of deceased.

Puerst A Kraemer claim $19.30 for goods sold and delivered.

There was Judgment maintaining the opposltioh of Urs. Peldner in so far as to place her on the account as a privileged creditor for $600 for rent due and to become due, i/-" /fty (for the period of one year from the death of Von Hiuland for $40.50 costs of court, and placing her on the account as a debtor for $750, the amount of her bid, leaving her Indebted to the succession in the sum of $109.50.

The opposition of Joseph F. Vincent was dismissed.

As thus amended the account was homologated.

From this Judgment the Administratrix and Joseph Vinson hare appealed.

She claims of the other opponents who haws not appealed cannot he considered.

In this court Mrs. Peldner has prayed that the Judgment in her favor he increased to $75(5, ¿fe" f^7'

We have already announced our conclusions as-regards the claims of lira. Peldner, from which it results that she is a debtor to the succession in the sum of #750,. subject to a first credit of $103.33 and to a second credit of $40.50 costs spent by her, or $606.17.

Ur. Vinson is the only witness in'his own behalf. The truth is that he was a clerk in the employ of the deceased but at what salary and what amount is due to him is testified to by himself alone. He was twenty-three years old on the trial of the case; and he was not a pharmacist but only an apprentice; his knowledge was empirical, never having had any but practical experience; he was in the employ of Von Phul since the age of eleven; after Von Phul's death he worked at a confectionery at $13 a week and board; he was living on the place róien Von Phul died; and was in possession of the store; he locked the door and notified his brother; and then delivered the keys to the Notary; his salary was paid up to .September 1st, 1915; the expense account of Von Phul beginning November 1914 does not include the name of Vinson; it only shows one payment to him of $17. 25; opponent locked up the Von Phul's books at his death, and they were not unlocked until the inventory was taken; the book in which opponents account was kept has sixteen pages missing; opponent says they were torn out since he saw the book.

The attorney for the succession testifies that he received the book at the time of the making of the Inventory; that the sixteen pages were then missing and that he called Mr. Vinson's attention to it.

We dismiss the opposition' of' Mr. Vinson with the statement that with the Judge-a quo we do not think that his claim was made out with sufficient certainty to Justify a judgment in his favor.

It Í3 therefore ordered that the judgment of the District Court maintaining the opposition of Mrs. Feldner to the account of the Administratrix herein filed on September 19th. 1917 and placing her on said account as a privileged creditor for six hundred dollars rent he reversed and avoided; and it is now.ordered that the said Mrs. Charles B. Feldner he condemned to pay to the Succession of Frank A. Von Phul the sum of Seven hundred and fifty dollars subject to a first credit of One hundred and three 33-100 dollars and to a second credit of Forty 50-100 dollars; and as thus amended that the judgment of District Court be affirmed, Mrs. Feldner paying the costs of her opposition - and of her appeal.

November 25th. 1918.


source: Caselaw Access Project

license: Public Domain

text:
    CHARMS ?, CLAIBORNE, Judge.
    SUCCESSION OF FRANK A. VON PHUL.
    No. 7378.

   ON APPLICATION FOR REHEARING.

CHARLES P. CLAIBORNE, JUDGE.

Mrs. C. S. Peldnsr has applied for a rehearing.

She suggests for the first time that this Court is without jurisdiction over the controversy herein for the reason that the Inventories of this Succession disclose assets valued at $2392.50. In support of her suggestion she refers to Article 05 of the Constitution which reads as follows:

"The Supreme Court, except as hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2000 exclusive, of interest &c".

The Constitution of 1812 contained a similar clause:

"The Supreme Court shall have appellate jurisdiction only, which jurisdiction shall extend to all civil cases when the matter in dispute shall exceed the sum of Three hundred Dollars".

SO Did the Code of Practice. Art. 570:

"An appeal lies from all judgments rendered by the District Courts of the State when the matter in dispute 3hall exceed five hundred dollars".

C.P. 1049:

"Appeals shall be carried from the Courts of Probate directly to the Supreme Court in all probate matters when the amount in dispute shall exceed five hundred dollars, exclusive of interest".

The Constitution of 1845, 1852 and 1864 and' 1868 were the seme as the one of 1812.

The-Constitution of 1879 was the first to add the words: "or the.fund to be distributed, whatever may be the amount there* in claimed". But the addition was only an affirmance of the former jurisprudence! since the Supreme Court had already interpreted the "matter in dispute" to include "the fund to he distributed".

In 3 Rob. 5 the Supreme Court said:

"When creditors of a succession are litigating their rights in a concurso, an appeal will lie to the Supreme Court when the value of the Succession exceeds $300, though the claim of each creditor may be for lest?

The jurisprudence has remained the same ever since:

See 21A., 487; 28 A., 935; 29 A., 327; 30 A., 625; 34 A., 1067, 1140; 39 A., 570; 40 A., 828; 41 A., 620, 668; 43 A., 423, 977; 45 A., 156; 47 A., 1581; 48 A., 762; 49 A., 1467; 50 A., 404; 51 A., 1035, 1703; 104 La., 771; 113 La., 208, 406; 141 La., 842; I La. Dig. 271, 275.

In a concursus proceeding by an owner against the mater-ialmen to distribute- an amount exceeding the jurisdiction of the Supreme Court, all parties may appeal to that Court although no individual claim reaches the jurisdiction of that Court. 24 A., 442; 26 A., 371, 372; 15 A., 661; 27 A., 503; 11 Ct. App. 29.

Mrs. Feldner relies upon the following authorities: Succession of Johnson, 141 La., 842, In Re New Iberia Cotton Mills, 113 La., 406, Brierre vs Their Creditors, 43 A., 423 and Succession of Romero 43 A., 977.

In the Johnson Case the property of the Succession was appraised at $3133,20; the Executor filed an account by which the total assets shown were $1920,10, and the total amount for distribution was $1570.27. The heirs opposed the account on the ground that the executor bad not accounted for all the items ¿ft 2-0 0 o, of the Inventory It tjjás appears that the executor had, or should have had, on hand "a fund to be distributed" in excess of $2000 and that was the matter "in dispute". Const. Art. 85.

In the New Iberia Cotton Mills case the account filed showed that the receiver had collected $2462.02 and paid out 31067.10, leaving in his hands $1394.92 in cash; it further showed total assets collected and to he collected amounting to $8886.26, and total liabilities $26,065.67. The Court said; ■ "In cases of insolvency, the test is hot the amount actually distributed under a provisional account, but the amount of the fund to be distributed in the case. Brierre vs Their Creditors 43 A., 423. The account in question shows that this fund exceeds $8000".

In Brierre vs Creditors the appeal was from a judgment homologating an account which proposed to distribute a fund of $1021.23. But the insolvency involved a fund to be distributed thereafter, and still in the hands of the Receiver, exceeding $2000. The Supreme Court maintained it jurisdiction, which, said the Court, could not be defeated by the Syndic in filing successive accounts each of less than $2000.

In the Succession of Romero the Administratrix sold property of the Succession to the amount of $8618.25. The ad-ministratrix alleged that she had rendered "an account, paid the debts, and partitioned and settled with her emancipated brother”; ahe alleged that the only property remaining consisted of two tracts of land of the value of $850, anl she prayed to be authorized to deliver them to the heirs and to be discharged as admiir istratrix. Opposition was made to her petition by persons claiming to be creditors of Romero for $1300.. The Supreme Court held that it had jurisdiction because the administratrix had distributed the property of the Succession without judicial authority, and that the matter in dispute involved the legality of all her acts as administratrix of a fund of $8618.25.

But in the case under consideration there is no matter in dispute nor fund to be distributed exceeding $2000, It is true that the Inventories amount to $2392.50. But there were two accounts filed. A provisional account which distributed $609.37 among privileged creditors. A second account, styled a "final account", according to which "the remaining funds to be distributed" amounted to $857.87. This final account did not mention the real estate in the Parish of Orleans appraised at $360; tut it appears by the petition of the administratrix, for the sale of the property of the Succession to pay debts, and sworn to, that all of said real estate had "been seized under foreclosure proceedings and sold for the purpose of paying the mortgages resting against it, end that the property had not realized enough to pay the amount of the encumbrances resting against them". This account otherwise included all the assets remaining for distribution in the hands of the adminis-tratrix and showed that they amounted only to $857.87.

Mrs. Feldner in her opposition claimed only $940.50.

In the Succession of Duran, 34 A., 585, the Administrator filed an account proposing to distribute $2692.00. The City of New Orleans opposed the account claiming to be a creditor for $237.60. The account was homologated so far as not opposed, and the entire funds distributed in accordance therewith,"leaving open for contestation, and the only fund remaining for distribution, the amount in controversy between the City and the Succession for the taxes mentioned". The Court said: "The only amount that can possibly be distributed or paid by or under any judgnent of this Court, and in fact the only amount involved when this appeal was filed, and even before it was taken, is the sum in litigation. The fund to be distributed is only $237.60 and the amount claimed therein is just $237.60, thus plainly demonstrating that the matter in controversy is not within the limits of our jurisdiction".

The Succession of Duran was affirmed in the Succession of Mc Dowell, 35 A., 1025.

In the Succession of Gohs, 37 A., 428 (429), the Court said: "The amount in the hands of the Executor, remaining for distribution, is $1345, the rest having been previously distributed under a prior judgnent, homologating the executor's account wherein not opposed, and which judgnent has become final, no appeal from the same having been taken". The Successions of Duran and of Me. Dowell were affirmed by name.

In the Succession of Romero, 43 A., 975 (977), the Court said: "This Court has decided that where there was a final judgnent homologating ar. account of administration and authorizing partial distribution,So that the funds remaining for distribution were reduced to an amount less than $2000, it has not jurisdiction. Succession of Duran, 34 A., 585; Succession of Mc Dowell, 35 A., 102". 42 A., 516; 105 La., 322; 117 La., 923; 121 La., 843.

The Succession of Duran, the Succession of Mc Dowell, and the Succession of Gohs were again affirmed by name, under like state of facts, in State ex Rel Carran, 44 A., 819. See Also In re Southern Liquor Co., 49 A., 1455; 50 A., 518; 107 La., 144.

In the case of Petit & Boh Co., 128 La., 165, the liquidators filed an account. An opponent alleging himself a creditor for $1100 asked to .be placed -upon the account; he did not oppose any item. The account was homologated so far as not opposed, and, with the consent of the opponent, the funds in the hands of the liquidators were all distributed with the exception of $1100 by them reserved to meet the ocoosition. The Supreme Court held that the only funds in dispute were $1100, and that it had no jurisdiction, quoting 37 A., 429 and 42 A., 517. See Also 30 A., 370; 35 A., 19; 42 A., 516; 50 A., 471.

We therefore conclude that this Court properly exercised jurisdiction over this case.

Mrs. Feldner also charges that our opinion is in conflict with that of the Supreme Court in Villavaso vs Creditors, 48 A., 946. In that case the advertisement reader" The purchasers to take said property x x free from any and all other claims, except the payments due upon said leases, amounting to $926.00 and $1016.00". These two items comprised the rent to become due up to the expiration of the lease. The lessors became the adjudí-cateos for the price of $454. The Supreme Court held that by that purchase the lessors had put an end to the lease; that the syndic owed them nothing and that the^owed the syndic $454.

We intrepret our decision to be in line with the Villa-vaso case.

Rehearing refused.


author: By hia Honor John St. Paul.

text:
    NO. 7384

      ADW WUNDERLICH, ET AL VS NEW ORLEANS RAILWAY & LIGHT CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   V r i i i o h.

By hia Honor John St. Paul.

Plaintiffs seek to anjoin the defendant atreat railway Companyfor changing the route of some of its oara contrary to the terns of Its franchise.

They allege that the change was made without #&ir authority from the City Council, and #tt# by the sole permission of one of the City Commissioners, himself unauthorised in the premiaea.

They further allege that suoh #é#láiá£rerouting, by affecting passenger traffic along certain thoroughfares, will oaoaw each of them to lose business to the ralue of more than #3000.

Jro«;a judgment against them, pldintiffa appealed simultaneously to the Supreme Court and to this Court,

The Supreme Court d'iemlased their appeal on the ground that tha alleged interact of #3000 eaoh, was neither proyou #y nor *»ueoeptlble of proof*. (See 79 Southern Rep p. 80)

And ws are now ashed to dismiss this appeal on the ground (in affeot) that it la neither proved, nor susceptible of proof, that the oontroveray Involves more than #100, which is the least JurledlotJor of this oourt under Art 99 of the constitution Of 1993.

But in Mc Manigle vs Billet (#7346#of our docket) we had oooaaion to examine this point, and basing ourselves on an unreported decision of the Supreme Court (State ex rel Marrero vs Rouprich, No. 21478) we held that the source of our Jurisdiction was not the Constitution of 1898, but that of 1915; and that our Jurisdiction extended to, “all oaBes CIyII and prvbate, of which the Supreme Court is not given Jurisdiction."

December 9th, 1918.

And upon due - consideration, we feel satisfied that Me are no more authorized now, than we «ere authorized then, to disregard the Ter/ clear pronouncement of the Supreme eourt ¿n the Kouprich case.

Vs therefore adhere to our former ruling,

Potion Denied,

Hew Orleans, T.a,


author: By his Honor John St. Paul.

text:
    NO. 7386.
    PIERRE ULYSSE JEANIN VS HENRY BOWMAN, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I N I O N

By his Honor John St. Paul.

Thia is a petitory action. In 1903 plaintiff and the other heirs of his father partitioned in kind certain squares of ground, of which the property in controversy formed part and was allotted to plaintiff as his share. . '

At the time of the partition the property in controversy did not belong to the estate of the. deoeased'father, having previously been sold to the State for -unpaid taxes.

Thereafter one of plaintiff's coheirs repurchased the property . from the State and sold it to a third person through whom defendants claim title.

The question presented is whether the title thus subsequently aoquired by plaintiff's coheir was merchantable by the said coheir, or inured solely to the benefit of plaintiff towards whom said coheir was a warrantor (C. 0. 1384).

As a partition in kind is but a sort Of exchange (C. C. 1388 ) and in general the law'applicable to exchanges is that also applicable to sales (C. C. 2667) we. see no distinction between the effeetyof warranty • in partitions and its effect* in sales.

But warranty against eviction. on the part of a grantor, is two-fold jL. That the warrantor shall abstain from any act tending to disturb the possession or title of his grantee, and. 2. That he will restore the " price fceae if eviction be suffered through the act of a third person.

The latter may be modified.or oven waived., and is clearly divisible’ even between warrantors of undivided portions; but the former cannot be waived (C. C. 2504) and i3 by its very náture indivisible between warrantors by the same act, since it is then an obligation not to do and conjointly contracted. C. C. 1929-2108-8113. (See also Troplong de la Vente Vol 1. 434, 438.)

November 25th, 1918.

Henoe it follows that whoever Joins in a grant of the whole property though his own interest therein he hut an undivided part, forever estops himself from ever asserting title to any part whatever of the property granted.

Accordingly the courts of this'Státe have uniformly held that any title subsequently acquired hy a grantor inures at once to the benefit of his grantee, whose title he is bopnd to complete to the full extent of his warranty.

City of N. O. vs Riddell, 121 La 1051

Benton vs Sentell, 50 An 869

Succession of Dupuy, 33 An ### 277.

Crocker vs Reed, 23 An 159.

It therefore follows that the title acquired from the State hy plaintiff’s coheir and warrantor, at once inured to plaintiff's benefit and completed his title, leaving nothing in the coheir which she could grant to defendant's author.

Ihe Judgment appealed from is correct.

Judgment Affirmed.

New Orleans, La.


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    By CHARLES P. CLAIBORNE, Judge.
    GEORGE K. PRATT vs. DAMON CASTLE HALL CO.
    No. 7390.
    November 25th. 1918.
   CHARLES P. CLAIBORNE, JUDGE.

The question presented in this case is whether a purchaser of propertyfwith a clean mortgage certificate^, is hound for the payment of a paving claim recorded subsequent to his purchase, but within sixty days from the date of the issuance of the paving certificate by the proper officers.

The plaintiff- alleged^and the facts are,that in 1907 the City made a contract with the Concrete Construction Company to pase Gravier Street, under Act 45 of 1896 and amendments thereto; that at the time said contract was made the Bank Place Realty Co, was the owner of the property No. Gravier Street;, that on July 25th. 1908

the Realty Co. sold said property to the defendant herein, the DaWfon CastéE-Hall Co., which is at present the owner thereof; that the-paving claim was not, at that time recorded, and that the mortgage certificate showed no inscription for paving; that the paving of said street was completed by July 10th. 1908, and, on that day, there were Issued to the Concrete Construction Company two paving certificates against the'Bank Place Realty Ca. signed by the commissioner of Public Works and by the City Engineer for the sum of $395.81; that both of those certificates were recorded in the Mortgage Office on September 4th. 1908, forty-one days after the sale by the Realty Co. to the defendant, (July 25), out only fifty-six days after the issuance of the paving certificate,(July 10th. 1908) and within sixty days thereof -; that the plaintiff 1b the assignee of said paving certificate since June 1912 ,

•The plaintiff prayed for judgment against the defendant for $395.81.

The defendant answered that it had no knowledge of plaintiff'e claim until a short time prior to the filing of this suit; that the Mortgage Certificate reported no claim for paving; that it purchased on the faith of said certificate; that plaintiff's assignors were negligent in not recording their claim and in not notifying defendant of it.

There was judgment for plaintiff and defendant has appealed. The reasons for judgment .were as follows:

"It appears that the work was legally and properly executed while the property was owned hy and stood in the name of the Bank Place Realty Co; that after the work was done and before the certificate was issued and recoVded, the present defendant,on a clean Mortgage Certificate^purchased the property from the Realty Company. Subsequent to the tpaws-notion and within the sixty days allowed by law for this purpose^,the certificate of the City Engineer was recorded against the property. The question before the Court is whether the assignee is entitled to a recognition of his privilege against the new owner? Paving privileges are the highest type of legal rights, priming mortgages, vendor's liens, taxes etc. They owe their existence strictly to the law and hence when that law provides that they may be recorded within sixty days, that proviso is part of the form and only form to fix the privilege".

We concur with the judge of the District Court.

Section 97 of Act 1S8 of 1906 p. 273 provides:

"In all cases, the property — portion of the cost of roadway, or roadways, paving or banquetting shall constitute a first privilege, superior to vendor's lien,' or any other privilege or mortgage, and shall be due by such property until paid^though the same be transferred or conveyed by sale for taxes or otherwise; it shall be sufficient evidence of such indebtedness to record the roadway, or roadways, pawing or banquetting certificates, hereinbefore described, In the office of the Recorder of Mortgages for the Pariah of Orleans, within sixty days from the date of their lssuanoe by the City Engineer and Commissioner of Pab-ilo W'rlcs".

But the counsel for the defense argues that the paring contractors have sixty days to reoord their privilege as far only as the owner of the property Is concerned; but that^as far as other persons are to be affected, who may acquire rights to or upon the property, contractors must record their privilege as soon as It arises, otherwise they lose their privilege; that any other doctrine would lead to the revival of tacit mortgages which have long since been abolished. But the truth is that tacit mortgages are permitted by the constitution, and exist by authority of law. Zacit mortgages.existed in this State up to the year 1868. The Constitution of that year. Article 123, provided:

"Ho mortgage or privilege shall hereafter affect third parties, unlass recorded in the Parish where the property to be affected is situated. The taoit mortgages and privileges now existing in this Stats shall cease to have effect against third persons sifter the first day of January 1870, unless duly reoorded. The General Assembly shall provide by law for the registration of all mortgages and privileges".

It will thus be seen that under the Constitution of 1868 there was an absolute prohibition against the existence of any tacit or unrecorded mortgages or privileges of any kind. Ho mortgage or privilege could thereafter affect third parties unless recorded, and the general assembly was to provide for their recordation.

The Civil Code of 1870 was revised under its influence. 6 XIX was inserted under entirely new articles from 22S1 to 2266 providing for "registry". After providing for the mode of recording different acts, Article 2266 concluded by saying that "all sales, contracts, and Judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but. shall only affect third persons from the time of the recording".

While article 3241 and 3319 of the Code of 1825 granted a delay of six days within which to record privileges and mortgages, their corresponding articles.3274 and 3347. required the A aot or the evidence of the debtfto be recorded "on the day that the contract was entered into".

The jurisprudence of the Stateenforoed the strictness of the new system - 18 A., 143; 27 A., 275, 243, 408, 460; 20 A., 79; 23 A., 286; 24 A., 610; 28 A., 305; 30 A., 1007.

But the rigor of .the rule soon worked hardship and defeated just claims. It was in many cases a great inconvenience to record an act on the same day on which it was passed. When an act was passed in one parish to be recorded in another parish, -it was impossible to do so on the same day. Therefore, article 176 of the Constitution of 1879 relaxed the law and read as follows: "No mortgage or privilege on immovable property shall affect third persons unless recorded or registered in the parish where the property .is situated, in the manner and within the time as in now or may be prescribed by law, etc.",

Artiole 186 of the ConstitutionSof 1898 and 1913 retained the same expressions.

Under the Constitution of 1868 the validity of any act granting time to record an- aot so as to affect third persons might well Have been questioned. But under the Constitution,! of 1879, 1898 and 10313 there is no doubt that the legislature had that right. Those constitutions might have provided that mortgages and privileges would affect third persons without recordation at any time; therefore they had the power to say that those mortgages and privileges would.affect third persons without recordation^for a specified time, or"wlthln the time as is now or may (hereafter) be prescribed by law". That time might be long or short, reasonable and just, or unwiss and ini qultous; but the legislature had the power to fix the time arbitrarily., and its will became the law. The delay granted the paving contractor for recording hie privilege is not the only one accorded a privileged creditor. By Act 45 of 1077 p. 59, regular session, amending article C. C. 3274, the legislature has extended the time for recording acts conferring a privilege from the same day to "seven days from the date of tho act or obligation of indebtedness, when the registry is required to be made in the parish where the act was pasned or the Indebtedness originated and within fifteen days, if the registry is required to be made in any other parish of this State", ^hateveumight have been said of the Constitutionality of this act under the Conaltution of 1858, there is no doubt that it is valid under the Constitutions of 1879, 1898,and 1913. Under the provlslonSof that act there can be no doubt that a privilege conferred by an act passed upon a certain date, but recorded only upon the seventh day thereafter, would take preoedenoe over another privilege granted upon a subsequent day and recorded before tho prior act. Thus a vendor upon terms of credit, recording his act of sale in the mortgage office seven days after the date of its passage^would be entitled to a privilege and a preference over a mortgage or privilege granted by the vendee, and recorded, prior to the seventh day after the sale - 16 La. 292; 48 A., 764.

5o in the case Defore us, the legislature has granted the paving contractor a privilege upon the property fronting the pavement and has said that, it -wtuld be sufficient, in order to preserve the privilege, to record the cert '...ate within sixty days from the issuance of the paving certificate. To preserve the privile.-a against whom? Surely nofagainst the owner-of the property. Ab against him no registry was necessary to preserve the privilege, - 25 A., 555; 15 La., 384; 2 A., 174; 12 A., 183; 15 A., 51; 23 A., 555; 31 A., 284; 27 A., 290.

Upon the day the certificate was issued the property became affected with the privilege as regards the owner; as to him no recordation was necessary. The property was also affected with the privilege, without recordation, as regards third per-■on* during sixty days after ths issuance of ths certificate, because the lav, by Its vary latter, accorded the contractor these sixty days within-which to record his privilege.

Counsel for defendant argues that those eixty days were granted only as against those already having rights on the pro» party at the time of the iesuanoe of the certificate: but as to rights subsequently springing into existence, ths certificate ean have no effaot whatever unless recorded prior to the acquisition of thsga new rights by a third person. Vo see nothing In the law to thus restrict its operation.

The case of the Etta Contracting Company, 134 La. 48, has no applloatlon here. She question in that case was, who of two owners owed the pavement, the owner at the time the ordnance^for the paving was passed, or the owner at the time the pavement was completed and the certificate for the same is isBuedf And the Supreme Court decided it was the latter. Bor have we said anything heretofore in conflict with any of the language used in that opinion.

The Shreveport Bank case, 119 La. 41, is also without Influence here. In that case the Court decided that plaintiff's claim was not recordad in ths "manner" required by law, because It contained no detailed statement of the amounts dua, and was equivalent to no recordation at all. There was no question of the time of recordation.

The recordation of the certificate in the name of the Bank Place Realty Company was proper, because it was the owner of the property at the time of the lssuanoe of the oertifioate.

If there is any hardship In this case upon the defendant It Is due to the olear and unmletakeable language of the law and not to the enforcement of it. The arguments against it should be addressed to the Legislature.

Judgment affirmed.

November 25th. 1918.


author: St* Jw.ipe*

text:
    NO. 7396
    MRS ISABELLA STROUDBACK VS MAX SINGER ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      December 9th, 1918.
   St* Jw.ipe*

Til** decision in t'vJb cr.se lianas upon the sufficiency of, or neceositr for, a certain putting in default.

Plaintiff «gre^d to purchase certain rej,l property from defendant, and when she delayed taking title, he undertook to nut her in default by giving her written notice to appear before a certain notary, on a certain day and at a certain hour, tfhen he would be prepared to execute a title to the property, 7

It is^evidence that defendant appeared at the time and place designated, and that plaintiff di¿ not. Rut it is also in evidence that defendant though willing was not ready to execute the deed.

For the evidence showp that the notary designated by him had never been directed to purpure,' and had .not in fact preparad, any deed to the property, or r-ecéived or applied for anyone o* the bald' dozen certificates required by law or custom; 11 An 741, 11 La 551-557, 6 Rob 324, 16 An 321.

Under the circumstances there was no such formal putting in default as authorized defendant to forfeit the deposit put up by plaintiff, and which she now seeks to recover (defendant having meanwhile sold the property, at an advance^ in price).

On the other hand there is no evidence that plaintiff ever waived or made unnecessary such default by peremtorily refusing to accept title to the property or'personally abandoning her deposit. It is true that she was anxious to tecede from her purchase if in so doing she could get back her deposit; but the evidence satisfies us that rather than lose her deposit she would have complied with her agreement, and that her failure to appear at the notary's office at the time designated was the result of misunderstanding.

We think the trial judge was correct in ordering her deposit restored.

Judgment Affirmed

New Orleans La,


author: By His Honot John St. Paul*

text:
    NO. 7401.
    JOHN TULLOS VS J. W. HETHERWICK.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By His Honot John St. Paul*

Plaintiff had judgment against defe'ndant in the Third Justice's Spurt of Hapidea Parish, and that court issued a writ of fieri faolaa ■^to the Civil ahoriff of the Parish of Orleans.

Thereunder a garnishment was taken out of 'the Civil District Court for Orleans addressed to H. & C. H@wman who answered that they held two hales of cotton suDjéct to certain changes. The garnishees sold the cotton, deducted their charges, and turned over the halanoe to the sheriff; to all of which no objection is urged.

Plaintiff ruled the sheriff into ##### the Civil District Court to show cause why he should not he paid. Defendant's mother intervened and claimed a lessor's privilege on the cotton or its proceeds. The Sheriff excepted to the jurisdiction of the court on the ground that the writ under whioh he held had issued out of the Third Justice's Court afor' aid and that court alone had jurisdiction to pass upon the conf.. Ici.ing claims which might arise over the funds held hy him under :-ne writ.

Vie think the: exception well founded. The Code of Practice (Article 1S6, 397) provides that all conflicting claims'shall he passed upon by the court under whose mandate the property was first seized. And it is of no consequence that the seizure was made in a parish other than that in which the court holds its session. Bank vs Clack, 127 La. 909-911.

Bor do vie think that the situation .is at all affected by the fact that the garnishment proceedings were had in the parish where the '/ seizure was mado. These were mere ancillary proceedings intended solely to ascertain the fact, between the seizing creditor and the garnishee, that the latter had in his possession property' subject to levy under the writ held by the sheriff. When the fact Was ascertained, the jurisdiction of the court before which these ancillary proceedings were had, was exhausted and the sheriff came into possession of the funds by virtue of the writ from the Justice's Court, which court alone has jurisdiction over the" conflicting claims arising out of the seizure.

January 1919.

The judgment appealed from is therefore reversed, the exception, to the jurisdiction of the Civil District Court is maintained, and it is now ordered that plaintiff's rule and the intervention be dismissed without prejudice to the right of the parties to renew their claims before the Third Justice's Court for the Parish of Rapides, the plaintiff and intervenor each to pay his own costs and plaintiff to pay the costs incurred by the sheriff in connection with the rule, if any.

Mew Orleans, La,


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    INDUSTRIAL HOMESTEAD ASS'N. vs. CHARLES A. JUNKER & al, APPELLANT.
    No. 7402.
    February 13th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

In this case an owner sues a contractor for the return of money^paid to-him- on a building contract.

The petition alleges that Charles A. Junker transferred to the plaintiff a certain lot of ground in order to make the plaintiff the record owner of it so as-to let out a building contract and erect for account of said Junker a building which was thereafter to be retransferred to him in accordance with the Homestead plan; that in pursuance of said agreement, the plaintiff, on July 9th, 1915, made-a contract with Frederick Junker, builder, for the erection of a two story frame residence for which the said plaintiff was to pay $2300 represented by five installments or payments of $460 each; that the Southwestern Insurance Company signed as surety for Frederick Junker; that after the plaintiff had made two payments of $460 each^Frederick Junker, the building was practically destroyed and Frederick Junker abandoned the work and announced his intention not to reconstruct said building; wherefore the plaintiff prayed for judgnent against Charles A. Junker, Frederick Junker, and the Insurance Company for $92,0.

Charles Junker filed an exception of no cause of action which was maintained, and the suit was dismissed as to him.

Frederick ¥. Junker and the Surety Company admitted the building contract; they averred that work under the contract had been commenced, and a first payment had. been earned, when a storm of unprecedented violence visited the City and entirely demolished the work which had been done; that the work was recommenced and had been executed up to a point at which the second payment was due, when, for the second time, the City was visited by a terrific atora of greater violence than the firat, and again the work which had been done waa entirely demolíahed; that the City Architect then notified Frederick Junker that the plana of the building were defective and that he would not permit the erection of the building in accordance therewith, that the double deatruction of the work waa due to the violence of the two atoraa and to the defect's in the plans and in no way t'o the fault of the contractor; that the plans were furnished by the plaintiff Association and were approved by its expert appointed by the Association for that purpose; that Junker was not an architect and that it waa no part of Kis duty to pass upon the plans of the building; that more than $920 were expended by Junker on the work which was actually done on the building, and that liens in excess of that amount'have been filed against the building.

There was judgment for the plaintiff as prayed for against Fred Junker and the Insurance Company and they have appealed.

As we understand the plaintiff'a case he pitches his cause of action upon two propositions: first,that the building was blown down before Junker completed and delivered it to the plaintiff, and that the destruction of it was his loss; and second, that he abandoned the work.

The abandonment of the work by the contractor Junker did not obligate him to return the money which he had received from the owner in payment of the first and second installments which he had earned; it only gave the owner the right to complete the building at the expense of the’ contractor and of his surety.

Article C. C., 2769 (2740) says: ,

"If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his nonoompliance with his contract". 12Ct. App., 126; 3 La., 1; 4 La., 465; 7 La., 134; 4 A., 97; 6 A., 202; 9 A., 31; 15 A., 220; 124; 36 A., 555 (558); 50 A., 351; 49 A., 863; 124 La., 306; 15 Am. & Eng. Enc. Law p 1093 10; 99 Pac., 723; 9 C. J. 739 78 - id 818 155 - id 820 157.

The last clause of the building contract itself contains provisions and gives the owner rights exactly in accordance with the authorities hereinabove a_uoted.

But in the present case there were two reasons which justified the contractor in refusing to rebuild. The first one va.3 that the 'destruction of the building out an end to the contract 'both da to him and as to the owner, according to the English and to the common law. 113 Pac., 121; 46 N. E., 449 (451); 2 Law Rep. Common Pleas 651 (659); 8 Elliott on Contracts 3702; 1 Am. An. Cas. 466 - id 1913 A. p 458, 459.

The other reason^that the plans had been condemned by the City Engineer who had refused to give a permit for the construction of a house ir. accordance therewith.

In Shepard vs Hero, No. 6830 of this Court we said:

"Where a contractor is required by the owner to erect a part of a building contrary to correct orir.-ciples of architecture and in violation of the building laws of the City, he is justified in refusing and quitting, and is entitled to the conmission he would ..have earned had he been allowed to do the work in a 'proper..manner." 9 C. J., 804 143 - id 821 158 - id 805 - id 822 159; 41 A., 375.

It- Seems that the contractor Junker did get a permit t6 erect'thertuilding, when he first started. ' He had got as far as' hisjthird payment and was p.bout to lath and olaster, . when,' oh .'August‘-7th, the building wes blown down; he then demolished it'¡- and.proceeded to reconstruct it as before; he had finished the-plastering and had' the locks .on the doors and was ' within.ten flayá t>f finishing-the building,, when On Seotember • 2Sth it- whs again blown down by'a.stona; he took it apart again; .but, this’tiihé the City authorities refused "the issuance of the ,'necbBaairyV búilding .permit for the erection" Of said structure in ,.'a,tí’ííoi4áthóí:v&th;,thé.5lahs and specifications submitted" "because", in the opinion of the City Engineer, “the building was not properly braced and anchored to the footings."

The other ground of action of the plaintiff is that the building was blown down before Junker completed arid delivered it, and that the destruction of it was hiB loss.

The law upon the subject is contained in the following articles of the Civil Code.

Art. 2758 (2729):

"When the undertaker furnsihe^s the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the lossshall be sustained by the undertaker, unless th,e proprietor be in default for not receiving it, though duly notified to.do so?, C.N.1788.

Wg interpret this article as apolyine exclusively to' building contracts^which provide for payment after th^ completion and delivery of the entire work to the owner. >’B.ut .when the building contract provides for the acceptance, delivery, and payment of the work in installments as the work progresses, as in this case, the law is different and is governed by- the ■ . following

Art. 2761 (2732)r

^If the work is composed of detached pieces, or made at the rate of so much a'measure, the patfts may be delivered separately:, and that delivery shall' be presumed to have .taken place, if the proprietor has paid to the undertaker the price due for-the ’ parts of the work which have already been completed". C. N. 1791.

In this case two parts had been completed and delivered and paid for, for it' is the payment of those two parts’ which the plaintiff seeks to réqbver.

The reason of the difference of the two articles is obvious, whether we consider the building contract as one of lease or of sale. When the. contractor completes .a part of a - building, it is his work,' his property, beeause he has paid for it in labor and materials; if it be destroyed it is his loss, in accordance with Art. C. C, 2758/and the principle "res perit domino*; but when he delivers that part to the owner, and receives payment for it from the owner, the ownershio of it is transferred from tb® contractor i& the owner who is seized of the ownership, because he has paid for it; it is in the nature of a sale. 30 Dalloz Rep. Leg. p 556 88; if it perishes while it belongs to the contractor, the loss is his; if it be destroyed after the ownership has passed to the owner, the loss is the latterb.

Such is the common interpretation put upon the law by buildings contracts, and by the plaintiff and the contractor in this case. Their building contract provides:

"It is well understood and agreed between the parties that the party of the second part (the contractor) shall insure the said building at his own expense, in a solvent insurance company or companies satisfactory to the party of the first part (the owner), and that whenever any payment.is made to the builder by said owner, he shall transfer to the owner an amount of said insurance corresponding with the amount of the payment thus made, to indemnify the owner for any loss in the event of fire, before the final delivery of said building".

Vie have not been referred to any decisions of our Courts interpreting this article, nor have we found any. But we have adopted, what we believe to be, the interpretation of the French commentators. 10 Dalloz Rep. Leg. Supp. p 261 74; 75 . 76; 4 Duvergier p 396 344; 3 Pothier Louage 436.

In 19 Baudry.- Lacantinerie p 744 2908 we read:

"The will of the parties may put the thing at the risk of the owner, even before the completion of the building. It happens, indeed, that buildings partially completed are accepted by the owner as regards the work already done; it happens even that the owner accepts the work gradually as it progresses.

In that case, the parts accepted become the property of the owner and are at his risk". Also 2 Guillonard p 351 784; 2 Trop Louage 990; 1 Domat p 2181 8.

"By acceptance and delivery,'the owner has appropriated the work, and consequently all fortuitous events must, henceforth, be at his risk*. 3 Delvincourt p 215 (4).

Digest Bk. 19,title 2,1aw 36:

"When a work has been let out. in bulk, until it has been accepted,' it is at' the risk of the contractor; but i^ it has been given out by the foot or by measure, it is at the risk of the contractor as long as the work has not been measure^1 &c
"If the part to be performed by one party consists of several distinct and separate items and the price to be paid by the other is apportioned to each item to be performed, or' is left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed although the latter is in its nature single and entire".'

In Siegel vs Eaton & Prince Co., 46 N. E. (Ill.) 449 the syllabus thus states the case:

"A contractor agreed to conétruct an elevator for a certain price payable one half when engine is on foundation and final payment to be due when the elevator is put in good running order." Held, that as to payments the contract was severable , so that on the accidental destruction of the building by fire before completion of the elevator, but after the erection of the engine, the contractor was entitled to one half of the price". Quoting Appleby vs Myers, 2 Law Rep Common Pleas p 651. In the Seigel case the work had not even been accepted, nor was there any statute governing the rights of the parties.

175 S. W. (Ky), 347 (349):

"It seems to be well settled that where a contractor undertakes to build a house and turn it over complete to the owner before receiving any compensation, and the house is destroyed before its completion without fault of either oarty, there can be no recovery by the contractor, for he has not performed the condition precedent to his right of compensation. But the contractor in this case, as modified by the October correspondence, brings it within a well-known exception to that genéral rule, and that is^that where under the terms of a contract the work is severable, and the contract price is payable in installments, as a certain portion of the work is finished, and the building is destroyed after an installment has been completed, then there may be a recovery by the contractor for such installment.^
Elliott on Contracts, vol. 3, 1909 in discussing the question where the loss shall fall when there is an accidental destruction of a building in process of construction, says:
'If the installments are to become due and 'payable absolutely on the performance of a cer-'tam proportion or part of the work each of such '.installments is due and oayable when such part or 'proportion specified is completed, and the subse-'sequent accidental destruction of the structure •does not' relieve the owner from his obligation to 'pay such installments'.
In Ann. Cas. 1913 A p 458, there is an extended note dealing with the various phases of this question, wherein, among other things, it is said:
'Where, however, the contract is divisible and 'severable, where the price is not entire for a 'compltted building, but is oayable by installments, 'these installments being fixed with regard to the value of the work done or as certain oortions of the same are finished - if the structure is destroyed 'by inevitable accident, the builder Í3 entitled to 'earned''' * °r installments which have been fully
And to this note is apoended a long list of authorities supporting that view*. %
See also 165 Pa. St. 605 - 59 Am. St. Rep. 280.
"Where the contract is not entire and the work is destroyed when partly completed, the builder has been held entitled to recover the installments due at the time of the destruction of the work, or the pro-rata, value of the materials and;1 work, as the evidence should show the contract to be, and it has also been held that he is not required to rebuild the structure". 9 C. J. 807 § 145 - Authorities.

We can add to the force of these' authorities that according to them and to Article 2758, the destáuction of building before completion and delivery is the loss of the contractor only in those cases where the destruction was not caused by the fault of the owner. Of course, when the destruction is the result of the fault of the owner, the loss is hiá,. because he cannot take advantage Of his own wrong, and because of Article C.C, 2315 which provides that every act'of man that causes damage to another obligas him by whose fault it' happened to repair it. In this case we have found that the building collapsed owing to the fault of the owner; therefore, he was bound to pay the contractor the value of his work, and he cannot recover any payment already made.

There is a clause in the building conti-act which reads a3 follows;

"It being understood that no payment made in the manner hereinabove set forth, shall be considered as an acceptance of the work performed- up to the time of such payment, .or as a waiver of any of the legeh. rights of the owner."

We do not understand this clause as varying- in any particular the situation of the parties resulting from the delivery and payment of the several installments, - it is only a reservation of a right to take advantage of any defective execution of the contract which might subsequently be discovered. /

But the plaintiff argues that the defendant's Case is also governed by Article 2762 (2733) of the Civil Code which reads as follows:

"If a building which an architect or other workman ha3 undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks". C. N. 1792.

Plaintiff's contention is, feetwwr, that although the building collapsed on account of defective construction the defendant is liable, even although the defective construction resulted from following defective plans and specifications. Such is not the law. The law is that the contractor is liable for errors of construction resulting from following the plans and specifications furnished by the owner only when such errors are apparent and easily detected and such as should have been discovered by the exercise of ordinary care and skill.

47 A., 1064; 115 La., 424 (431); 222 Fed. Rep. 737; 11 A., 427; 10 Dalloz Rep. Leg. Sup. p 269 114.

Baudry - Laeautuierie in vol. 19 p 753 2930 says;

"If the undertaker is under the orders of an architect, the vices of the plan do not entail any responsibility upon the contractor; the architect alone must imoute to him self the defects which, by reason of these vices, have been carried into the construction; the undertaker cannot be declared liable for having followed the indications of a plan which imposed itself upon him. Nevertheless, the contrary has been decided in the case where the undertaker has perceived the fault committed in the plan, and where the fault would be so gross that an experienced undertaker should have refused to execute thé work".
Also 2 Guillonard No. 855; 30 Dalloz Rep. Leg. Vo. Louage d'ouvrage p 575; 4 Dalloz Codes p 495 No. 123, 126; 26 Laurent p 46 42; 1 Soudrat p 679 673.

It cannot be said that the defect^in this plan were apparent or of easy discovery, when the plans were drawn by an architect, were examined and approved by a practical builder employed as expert by the plaintiff, apd after the expert had examined the work done in accordance with the plan and had approved it. It would be manifestly unjust to éaddle upon the contractor errors in the plan tohich were ascertained and pointed out only after the building erected under such plan had failed to^stand the test of two storms^ ' And for Which the plaintiff and his expert were as much at fault, if fault there was, as the contractor.

The common law is in accord with the Civil law.

In 9 C. J. p 742 we read:

"We understand it to-be well settled that by the making of such contract as the one involved in thi3 case the owner impliedly warranty the sufficiency for the purpose in view of plans and speicfications which the cpntractor is required to follow and subjects himself to liability to the contractor for loss or damage entailed upon the latter in consequence of a fatal de~ ficiency or fault in the plans and specifications not discoverable by him by the exercise of ordinary diligence upon inspection". < ' '

9 C. J. 752 87:

"Where the builder performs his work strictly in conformity with plans and specifications, he is-not liable for defects in the work that, are due to faulty structural requirements contained'in such elans and specifications,particularly where the errors in the olans are not auoarenfc or easily detected and he-.may recover un- . der the contract, unless he has warranted that the plana and suecifications are Correct or guaranteed the result, nolf-is he under any responsibility in the event of the subsequent destruction of the completed work, whether tnat destruction is caused by its own-inherent weakn^np, or from extraneous causes". See 144 Fed. Rep. 942; 144 Fed. Rep. 942, 144 Ky. 614; 160 N. Y., 72;6 Cyc. 63.

But the plaintiff argues that it is not hound by the plans and specifications for two reasons: The first one is that it did not furnish them. The facts are that they were ore» pared by an architect at the request of Charles Junker; that he submitted them to Frederick Junker for an estimate; that Frederick Junker made an estimate; that then Charles Junkei^ade his application to the plaintiff Homestead; that the plaintiff's expert examined them and made a favorabel report upon them; whereupon the plaintiff made a contract with Frederick Junker whereby he was to erect a building in conformity with the same plans and specifications. We entertain no doubt that ,the Homestead, by the above course, adopted and made its own plans and specifications/-^^^a«-^^ri^

The second reason is that the specifications contain the following dlauses: o 3:

"The whole frame must be built and braced in comers and whereover necessary", p 10:"Anjtthing not specified in plans, or vice versa, or anything which is of actual necessity to complete the work intended must be furnished and done by the contractor as though both specified and shown without extra charge".

There is no allegation and no evidence that the contractor did not build and brace the whole frame in the comers and wherever.necessary, nor that he did not furnish nob do anything specified on the plan. If the complaint is thatt he did not brace the building sufficiently to withstand two storms, the answer is, that he did not enter into that contract; he bound himself to put in such braces as were called for by the contract, and wherever he, and perhaps the expert of the plaintiff, might think necessary. But he did not undertake to put braces and do such other work as might guarantee the building against storms.

It is therefore ordered that the judgment herein be reversed and set aside, and that there now be judgment in favor of the defendant^ rejecting plaintiff's demand at its cost in both courts.

February 13th, 1919.


text:
    CHARLES F. CLAIBORNE, Judge.
    MARK LEVY & al vs DANNER NASSANS REALTY CO.
    No. 7403.
    January 2d. 1919.
   CHARLES F. CLAIBORNE, JUDGE.

Thin is a suit by vendeoíngainst -héw vendor to recover the amount of a privileged claim hanging over the property and causing the vendee ijust reason to fear that^hey-ahai-l be disouieted.

The petitioners allogdd that they purchased from the defendant company a certain lot of ground on Robert Street; •that the act of sale contained the following clause:

"The vendor binds and obligates itself to assume the costs of paving the street in front of the above described property, provided the City will bear the costs of nub-surface drainage*-;

that Robert Street was paved in accordance with Act 23 of 1914 subseouent to the act of sale; that petitioners have received the raving bill amounting in the aggregate to the sum of $320; that the cost of said paving is secured by privilege upon the lot of petitioners; that the cost of paving proper amounts to $265, and the cost of sub-surface drainage amounts to $55; that the defendant has refused to pay the cost of said paving for $265; and they pray for judgment against it.

The defendant excepted on the ground that the petition disclosed no cause of action. The exception was referred to the merits.

The defense, as we understand it, is only that ttet the defendant Company agreed to pay for the paving, only on condition that the City would nay for the sub-surface drainage, and tnat the City having refused to d0 so, .the Company is-not liable for the cost of the paving.

There was judgment for the plaintiffs for the sum of $230.63, representing the total cost of the paving, and the defendant has appealed.

We haye not been furnished with any briefs.

On the trial of the case below, an attempt was made by defendant to prove by oral testimony what was said at the time the negotiations for the sale of the property were going on, and to explain what the parties meant and understood by the clause in the act of sale concerning the payment of the pavement and the drainage. Plaintiffs objected to the hearing of this testimony upon the ground' that it was an attempt to vary or contradict the aot. The objection was maintained and the defendant reserved a bill. We think the ruling was oorrett. Parole testimony is admissible to explain an ambiguity in documents, but not to vary their plain meaning.

116 La., 666; 41 A., 31; 42 A., 37.

*A party having made a declaration in a written act, parol evidenoe is inadmissible to explain it*. 44A., 113.
0. C. 2276 (2266) "Neither shall parol evidence be admitted against or beyond what íb contained in the Acts, nor on what may have been said before, or at the time of making them, or since*. 117 La., 878.

The clause reproduced above concerning the payswnt Of the paving was olear and free from ambiguity. It appeared so to the District Judge and it does to us also. The defendant agreed to pay for- the paving provided the City paid for the drainage. There is no attempt here to make the defendant pay for anything, but for the paving, strictly speaking. It is none of its concern who pays for the drainage as long as it does not.

Our first impression, upon the argument of the case, was that the petition disclosed no cause of action, because it did not allege that the plaintiff had either paid or discharged the paving claim. The Civil Code seems to demand the payment as a condition precedent. Article 3410 (3373) says:

"The third possessor who has either discharged the mortgaged debt, or relinquished the property mortgaged, or suffered it to be sold under execution, has, according to law, an action of warranty against the principal debtor?. j$, f^—
Art. 2161 (2157) "Subrogation takes place of right: 1°; 2 : "For the benefit of the purchaser of any inmovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged". /J?á

It had been decided in that sense by a French Court of Appeal in 1829 - Sirey part 2d 1830 - 2 - 20 - Dufraigne vs Cortet, 20 Duranton p 477 286 - 4 Dalloz Codes Ann on Art 2178 p 1587 No. 41-37 Dalloz Rep. Leg. p 627 No. 1909 -J. P. 1828 - 1829 p 1304.

¿ci}ut in 1840 the letter of the law was applied in its spirit. The^Court argued that while there was a difference between a just fear of eviction by an action of mortgage and the eviction itself, yet the obligation of the vendor was to insure to the vendee a quiet and peaceful possession, and the vendee had a right to file suit to compel his vendor to oause the fear of eviction to cease by paying the mortgage creditors. 43 Dalloz Rep. Leg. Vo. Vents p 226 No. 854 note 1. See also 3 Baudry - Lac p 893 No. 1482 - 31 Laurent p 293 No. 320.

In the case of Bonvillain vs Bodenheimer, 117 La., 793, our own Supreme Court decided that when a vendee discover^ that his vendor had no title he "may sue to annul the sale and recover the price paid at any time, though he may not have been actually evicted or disturbed in his possession by the true owner". The principle seems to be that the certajpty of eventual eviction is equivalent to eviction itself. Vfhat is said of absence of title ipay be equally said of an outstanding mortgage or privilege claim of unquestioned validity. At any rate, when any such is asserted, a suit by the third possessor against his vendor will afford the latter the opnortunity of contesting the claim or paying it, or of making such other disposition of it as will remove it as an object of "just fear" for the owner. It is more in accordance with law and the obligations of the vendor that the burden of removing the fear should be borne by him than by the vendee.

The law and the evidence 'justified the judgment of the District Court and it is therefore affirmed,

January 2d. 1919.


author: By his Honor John St. Haul.

text:
    NO. 7404
    SUCCESSION OF FONTANA.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   O P I N I O N.

By his Honor John St. Haul.

Frank Fontana was a member of the Order of Druida. The by-laws Vjf the order provided that at his death a benefit of $600 should be paid, to his wife or to his children, or to hi3 relatives by blood, marriage or adoption; that said sum should be his only to the oxtont that he might select the beneficiary thereof, provided suoh beneficiary came within the above described limits; and that said fund would form no part of his estate, and be liable for no part of his debts, except when secured by pledge or assignment thereof; all in strict accord with the laws of this State- Act 116 of 1906 and 189 of 1914.

The deceased named aa beneficiary and left neither wife nor children; he had neither pledged nor assigned his benefit.

JuleB Fontana, residing in Italy and claiming to be the brother and only blood relative of the deceased, claimed the benefit as due to him. He executed a power of attorney in due form in favor of Charles fapini (acting Italian Counsel of New Orleans) gibing his attorney express and special power to claim and recover the said benefit, and take such legal proceedings a3 might be necessary to recover it. He also furnished certain sworn statements showing his relationship.

fapini opened the succession and was appointed administrator thereof. The Druids then paid over to him the ampunt of the benefit.

Thereafter Fapini filed an account in which he represented that he had received said sum, that it formed no part of the estate of the deceased but belonged to his principal for whom he claimed it.

Feter Bivona a creditor of the dec,ssed opposed this account. He claimed that the administrator by accounting for the sum had estopped himself from fftiitii denying that it was the property of the estate; that in any event there was no proof that Jules Fontana was a relative of the deceased.

The here- fact that tha administrator pat the item upon his aooonnt under the circumstances shore stated cannot hare the effect suggested fcy the opponent. She sane point was^iyde- before the Supreme Court and overruled in Sno of Mulledy, 47 An 1580. In that case the administratrix placed upon her account certain moneys whioh Congress had appropriated in faror of the "Heirs of legal Representatives" of the deceased {a victim of the Ford Theatre catastrophe),' and in the same account she claimed it for herself as a blood relative of the deceased. The court held that the said sum formed no part of the estate, and that the administratrix had not estopped herself by accounting for tU it in the manner indicated, and was entitled to recover it as her own.

11.

It is olaimed that exparte statements and affidavits, were inadmissible to show the heirship of Jules Fontana. This might be true were the contest over assets of the succession in whioh the creditors would then have an interest (Succession of Crousilles 106 La 448-Succession of Derigny 128 La. 853).

But it has no application here. This sum did not belong to the estate and the creditors had no interest whatever therein. Act 115 of 1906-Act 189 of 1914. Succession of LeBlanc 142 An 28, Succession of ####### Moberly, 13 Court of Appeal 371.

As the Braids were not obliged to pay this sum unless there were a blood relative, and as no one is presented to give, the presumption is conclusive that they must have been satisfied from the proofs as furnished, that Jules Fontana was the brother of the deceased.

The why and wherefore of their asking that an administrator ' be appointed is therefore wholly immaterial; they paid because and only because, they were satisfied an heir had appeared.

Uma«r the circumstances it would bo to "Out«2erod Herod" , to beooae "more royal than the king", for the oourte now to rejeot that evidence, and deolare in effect that no suoh heir exists, thus Xneidentlfjr declaring the payment made by the Druids os the payment of a thing not due, and therefore subject to reoovary by them.

Had the benefit been one of which creditors might have compelled payment, the matter would of course be different.

We are therefore oonvinoed, if law be based on common sense, that we ought to consider and be satisfied with, the evidence which was aooepted by and satisfactory to the Druids, who made the payment in good faith for the benefit of the legal heirs and not of the creditors who had no olaim whatever against the order.

111.

Insofar therefore as the Judgment appealed from orders the funds in the hands of the administrator distributed in accordance with the aooount, it is oorrect.

But it was error (probably oversight) not to recognize opponent as creditor of the estate,

This failure to reoognize opponent's claim is in effect to reject it and would be res Judicata in any future proceeding. His proof is regular and sufficient and he is entitled to judgment; for although there are presently no assets here belonging to the succession out of which he can make his olaim, nevertheless other assets may be found later on, here or elsewhere, out of which opponent may be üable to realize something.

It ilit therefore ordered that insofar as the judgment appealed from affirms the account and orders the funds distributed in accordance thereforth, the same is affirmed.

It is further ordered that insofar as said judgment fails to reoognize opponent as a creditor of the. deceased it is reversed and and it is now ordered that Peter-Bdvona be and he is hereby recog-nised as a oreditor of the deceased Prank Fontana and of his ■ucceasion in the full sum of $986.98 with interest at 5% per annum froayaanuary S9th 1918, and the oosts of both counts (this judgment however ut to interfere in any way with the distribution of ## the fonda reoeived from the order of Draids in the manner proposed by the aoooont)»

December 23rd, 1918.

Judgment Amended and Affirmed.

Hew Orleans, La,


text:
    Charles F. Claiborne, Judge.
    DR. CHAS. F. GELBKE vs WEST N. O. LT. & T. CO., APPELLANT.
    No. 7405.
    March 6th. 1919.
   CHARLES P. CLAIBORNE, JUDGE.

This is a damage suit resulting frotó a collision. The ^plaintiff alleges that on May 2?d. at 8:30 A. M. «hile he «as driving his automobile over the track of defendant comoany, one of its cars negligently ran into his automobile from, the rear, and so damaged it as to render it worthless-, and he sues for its value.

The defendant answered that it was in no manner guilty of negligence, but that the plaintiff contributed to the accident by his negligence and want of care.

There was judgment for the plaintiff and the defendant has apoealed.

The facts are as follows:

Between the town of Gretna and Harvey, higher uo the river, there is a dirt road; along the- right hand side of the road, going up, there is laid a railroad track, over which runs the cars of the defendant company; along the left side of the road, and upon the left of the railroad track^lies the public roadway, 16 or 18 feet wide; from the point where the accident occurred looking back towards Gretna, the view is unobstructed and a car can be seen a quarter of a mile off,' the public roadway extends up to the left rail of the railroad track, and the railroad bed between the tracks is not filled in, except for some two feet inside the track along the left rail; some parts of the public roadway were in bad condition, muddy, and had holes in it. Upon the morning of the accident, the weather was clear and bright; the plaintiff was driving his automobile upon the public road going up from Gretna to Harvey; the top or hood of his machine was up, and he was seated upon the left side of his machine as is usually the case; the railroad track ran along his right#» tyíán he reached, the point where tne accident occurred, about one mile above Gretna, he saw a hole in the public road, and, in order to avoid it, he drove his machine to the right, across the left rail of the track, in such a manner that the two right side wheels were between the tracks, in other words, he was straddling the left rail of the track, when a car of the defendant company, which was also running up towards Harvey in the same direction as the automobile, overtook it and ran into it, damaging it. The plaintiff lives in Gretna, is a practicing physician of that town, and also its mayor, and is well acquainted with the road upon which he was driving, and with-the existence of the electric railway running upon it.

We think it proper at this time to state the law.governing this case, as we find it in our reports.

It was said in Walker vs Rodriguex, 139 La,, 251:

"Street cars have the right of way; and it is the duty of others in crossing car tracks to look and listen for the approach of cars."
See also same volume p 185. 33 A., 157; 30 A., 19; 50 A., 1162; 51 A., 262, 299, 755; Elliott on Roads p 577; 27 Am. & Eng. Enc. Law p 57 XII; 36 Cyc 1490 J-42a350

Where plaintiff has been guilty of contributory negligence he cannot recover.

In the case before’ us we are of opinion that the plaintiff was guilty of negligence. He drove his machine upon the railroad track at a time when the car was in close and dangerous proximity; the proof of- that fact is established beyond auestion by the collision which occurred after he bed run 30 or 60 feet upon the track; it was his undoubted duty to have stopped, looked, and listened before going upon the track; because, aside • from his own knowledge of the existence of that track and of the car running upon it, the track was there, and he must have assumed that a car waB running over it. He did not stop. He says he looked and listSned; that he did not hear, nor see any coming car. Under these circumstances it is possible that the plaintiff saw neither the track nor the car. But his aotion is a* admission that he knew of the probility of a car coming upon that track» It is not necessary for us to douht him. He was seated upon the left of his machine, «hile the car was on his right, and the top or hood of his machine was up, obstructing his view in the rear in the direction of the owning car. But when the law requires a party to look and listen, it demands a practical and efficient use of our senses; it holds us to have seen and heard all those things which would necessarily have struck our senses by a proper exercise of them. As was said in Snider vs R.Rd., 48 A., 1:

"It is a recognized rule that before attempting to cross the track of an electric car a person should look to ascertain whether prudently the crossing should be attempted. The rule contemplates that this should be done at a time and place when the reason upon which it is founded could be made effective. When the law requires steps of diligence and caution it will not be satisfied by the substitution therefor of vain and useless acts."

In the instant case the law required the plaintiff to so direct his angle of vision that it would have covered the railroad track and anything running upon it within a reasonable distance. This we are satisfied the plaintiff did not do/ for if he had done so, it would have been a physical impossibility for him not to have heard and seen the car, and we believe he would have done so, and thus have avoided the damage. He testified that his hearing and his sight were both good. Two roads were open to him, a safe one and a dangerous one. He chose the latter without taking the necessary precautions to guard againBt the dangers and he must stand the consequences and not attempt to ’cast th®s upon others. His appreciation of the situation js thus expressed by him: "the business of the moborman is to ■watoh out." His reason for going upon the track is immaterial, whether it was to avoid a hole in the road or to gratify his preference for that position; his duty to look and listen remained the same. His failure to do so was negligence and bars his right to recover.

It may be that his sight was obstructed by the hood of his machine which was up; but this was hie fault,- not the defendant's. In Murray vs R.Rd., 31 A., 490, where plaintiff was injured while driving a covered cart, the Court said:

"the inability to see the train was solely due to the cart-cover, which shut out the view completely. Surely, the defendant is not to be mulcted in damages because the deceased drove in a cart which excluded the view from.either .side; for it is manifest that if he had not been unable to look without his own vehicle, he must have seen the train aporoacirig. His course was narallel with the train."

Also Schulte vs R.Rd. 44 A., 509; 52 A., 2151;110 La., 980.

In 17 La., 361, a man driving two mules hitched to a cart attempted to cross the Pontchortrain Railroad tracks ahead of a train that was coming at full speed and in full view. The Court rejected plaintiff's demand saying:

"Although we consider it indiscreet in the defendants to man their care in a crowded street, at the rate the one in question was going, still it was not unusual, according to the testimony of three of the four witnesses, and as great presumption and folly are proved on the slave of plaintiff,we cannot agree to affirm the judgment." 1 A., 372; 3 A., 48; 11 A., 292; 23 A., 462; 52 A., 884.
"To enable a party to recover damages for injuries caused him by a collision with a street car, he must show that he exercised a reasonable degree of prudence'and caution in endeavoring to avoid the accident. If, on the contrary, the evidence shows that the person injured by such a collision, while the car was in motion on the track, failed to exercise a reasonable degree of prudence, which, if he had done, the accident would not have occurred, he cannot recovdr damages from the company for the injuries received, either to his person or his property, even though the driver of the car be himself in fault." 23 A., 264; 39 A., 796.

In 28 A., 320, the plaintiff was walking on the railroad track outside the rails, stepping from one cross-tie to another; an approaching train struck hinland injured him. The Court said:

“We think it clear from all the evidence that there was negligence on the part of the young man in walking along the cross-ties and taking no care to look back or get off the track, x x In this case, conceding that there was a want of proper prudence and care on the part of the employees of the company in giving the usual signals of the approach of the trains, which is not clearly established, still the negligence of him in whose behalf damages are claimed contributed to the unfortunate result and precludes him from recovering." 30 A., 15; 31 A., 490; 40 A., 787.

In the case of Childs vs R. Rd. Co., 33 A., 154, the facts were that the plaintiff was walking on the side of and alongé the tracks of the defendant company. A car coming from=Üs rear struck and injdred him. The Court said:

"As he (plaintiff) was not on the track occupied by car 93, but in the narrow space between the two tracks, the driver of that car was not bound to warn him off, and cannot be blamed for running over him if plaintiff moved towards his track just at the moment that the car reached him. xxx Now, at that point, the street íb very widw, and besides the ground occupied by the double track of the railroad company, and by the intervening space, there is on each side a wagon road fully fifteen feet wide, on which pedestrians can easily walk and keep away from the danger of being run over on the railroad track. If the inconvenience of walking on a dirt road, occasionally muddy, induces people to prefer walking on the plank road of the car company, they must do so at their peril, and must be understood as preferring to run the chances of danger than to incur the inconveniences of mud and inferior roads, and the plaintiff who took these chances should have been on his guard against the approaches of cars which are running there, at that time of day, every two or three minutes, ordinary prudence teaches that a man -talking on either of these, tracks should direct his attention to the movement df the numerous cars which incessantly run back and forth; and cross each other so frequently x x x To reach a different conclusion would be to rule that a foot traveler walking on the track of a city railroad can use his own discretion, and take his own time, in giving way to a passing car, and to empower him thus to inconvenience and delay the passengers on the common carrier, and virtually to defeat the very end proposed by the law in authorizing such corporations for the safe and speedy transporation, for business or pleasure, of the innumerable persons who use this mode of conveyance in all the large cities of this continent." 47 A., 833.

In Brown vs R. Rd., 42 A., 350, the Court said on p 354:

"On the other hand, those who are crpsqing a railroad track are bound to exercise ordinary care and due diligence to ascertain whether a train is approaching, x x Before attempting to cross the railroad track, a traveler is bound to use his senses - to listen and to look t in order to avoid any possible accident from an approaching train, x x x Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railway crossing; but no failure on the past of the railroad company to do its duty will excuse any one from using "the senses of qight and hearing upon approaching a railway crossing, and whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad's failure to perform its duty." 10Ct. App. 258; 42 A., 990; 44 A., 285; 48 A., 1; 933; 50 A., 1087.
"On approaching a street crossing of a railway track in a City,it is the duty of a traveler to exercise his senses of sight and hearing and look and listen for an approaching train. His failure so to do is negligence. which, in case of collision, will pre-rent his recovery of damages for injuries sustained." 44 A., 280, 509; 47 A., 268; 48 A., 23.— 5 Ct. App 119
"The driver of a tally-ho who, in attempting to cross a railroad track ^corned in collision with a rapidly approaching train, whereby the vehicle is demolished and one of the passengers killed, is guilty of gross care-J* lessness which subjects the proprietors to damages, 47 A., 1391.
"The authorities are numbrous and uniform to the effect that a person whose business or pleasure occasions him to use the streets of a city which are traversed by electrio cars is guilty of negligence if he fails to employ proper precautions for his safety. He is bound to look and listen for the approach of cars, and to exercise ordinary care and caution to avoid possible danger of a collision; x x X failing to take such necessary precautions for his safety, the injured party is guilty of that negligence which deprives him of the right to reimbursement for injury received." 51 A., 262, 299, 755; 52 A., 417, 2149; 131 La., 559.

In the case of Ponsano claiming damages against a city railroad for a collision, 52 A., 245, the Court thus puts the case;

"The question arises as to whether it was possible for plaintiff to see the car of the defendant company before his horse stepped on the track, in time to stop and avert the accident, x x It is evident that.if plaintiff did not see the car, it was because he did not look in the direction in Which it was craning." The judgment for defendant was affirmed.'

Hot to look to see if a car is coming before attempting to cross the track of an electric car is such negligence as will preclude recovery for injuries caused by a collision. 106 La., 237.

"The recognized rule is that before attempting to cross a railway track a person should stop, look, and listen." 110 La., 970.
"One who attempts to drive a wagon across a street railway track in front of an accroaching street car, that could and should with reasonable care be seen and heard approaching,is guilty of negligence and is not entitled to damages for injuries received from a collision with the street car. " 137 La., 830.
"From the fact that there was nothing to obstruct the plaintiff's view of an approaching trolley car at ’.istance from the position he occupied when he backed a automobile upon the railway track and was struck l an approaching car, the presumption is either that .ie did not look with sufficient care for the approaching oar before going upon the track, or that he did not heed the danger that he should have seen if he did look." 142 La., 529.

The obligation to stop, look, and listen, applies to electric street railways. 49 A., 1302; 48 A., 1; 110 La., 970; 142 La., 529; 137 La., 830.

"But where a party goes on the track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would require very gross negligence, amounting to malice, to make the railroad company liable for an injury to him, and this rule is particularly applicable when the party injured has a safer mode of travel by a public highway, as in the instant case." 46 A., 251. 2 Ct. App 379
"Wien there are two avenue» of travel and the more dangerous one is selected, the party injured cannot recover, if the injury inflicted was due to the risk incident to the route selected. The traveler assumes all risks in such cases." 48 A., 807; 27 A., 54, Johnson vs R. Rd.; 49 A., 484; 33 A., 157; 47 A., 834.

But although plaintiff's conduct was negligent, the modern jurisprudence still entitles him to recover if he proves that defendant might have avoided the accident by the exercise of ordinary care. Vaughn vs Ry. Co., 13 Ct. App., 116; and cases there quoted; 52 A., 417; 106 La., 239; 121 La., 39; 116 La., 789; 126 La., 933.

The plaintiff charges that the defendant was running at an excessive rate of speed. The evidence is that the car was running at about 12 or 16 miles an hour. Ther'e Was no state law nor city ordinance regulating the rate of speedy the defendant had therefore a right to run at such rate as it deemed beneficial to itself, consistently with safety to its passengers and to the public. Sxcessive speed is relative. might be excessive speed through populated cities would cease to be so in the open country with few persons crossing the track, 39 A., 797; 106 La., 111.

The rate of speed must be diotated by comOBn prudence. 46 A., 248.

"If the. car in this instance was traveling at no higher speed than fifteen miles an hour, the defendant was not at fault, for althougi a railway company may not always run its cars at the maximun rate allowed by law, regardless of the particular conditions existing at the moment, there^Sere no particular conditions existing on St. Charles Averne, at a quarter to six o'clock on the morning of Juno 19th, 1901, which rendered it improper or. unsafe to operate a car at that speed. "
110 La., 979, Heebe vs R. Rd. Co.

We have no reasons to believe that ary conditions existed on the road one mile above Gretna, outside of the City limits, to render a fifteen mile speed dangerous.

‘ Plaintiff's next'contention is that it would have been ^¿possible for the motorman, had he been in the exercise of due care, to have seen the plaintiff upon the track, to have stopped the car, and thus avoid the accident.

The evidence of the motorman is that the plaintiff "bolt-upon the track within fifteen feet of his car, that he shouted to the plaintiff, put on the brakes, and tried in vain to stop his car in time. The plaintiff testifies that he had driven his machine over the rail for a distance of about 40 feet before the car struck him; on two other occasions he says 30 feet; another witness says 65 feet.and a third 50 or 60 feet,

If the oar waa running at a speed of IB milea an hour* it waa equivalent to one ¡rale in four minutes, or 13?0 feet in one minute, or ?4 feet in one second. The motorman teatifies that the machine crossed over on the rail within fifteen/o^hia car, and in this he is not contradicted. If we add 15 to 60 we have 7B feet, equal to the distance between the motorman, when he fúrat saw the machine, and the machine when it waa struck. It took the motorman about three seconds to run over this distance. We cannot say that ho would have hod time to atop within a shorter time* In the case of Heebe, 110 La., 981, the Court said "that it took him, an avowed expert, 3£ seconds merely to go through the motions necessary to apply the stopping power." ekiie distance within which a car running at a speed of IB miles an hour.can be atop* ped depends upon many circumstances. In Schwartz vs R.Rd., 30 A., 19, the Court said:

"What is that distance? It then varied, according to circumstances, from three to 3?, feet, This is the evidence introduced on the trial, and that evidence leaves us on a shóreless sea of doubt and uncertainty. It clearly shows that the possibility and the power to stop within the given distance depends upon the quality of the brake, the strength of the driver, that of the mule, (or Motive power) the pull which immediately precedes the checking, the load carried, the weight of the car, the condition of tha weather, of the track, and the unobserved and untold causes which accelerate or obstruct the speed of a vehicle and the revolutions of its wheals."

Tha evidence is that the motorman hollowed and struck his gong as soon as he saw the automobile coming upon his track; about 15 feat ahead of him; there was no necessity for hia doing so earlier, as he had no reason to anticipate that the machine would do so; of course it was then too late either to allow plain* tiff to get out of the track or to enable tó» to atoo; but this A was not the fault of the mot ornan,

there is nothing in conflict with this opinion in Hart vs Bonura, 12 Ct. App., 171, where thp collision was between two vehioles^whilif the defendant in ¡this p&ae it/a. street railway^ Bonure hod no reason to beliem that a vshielo mg behind him, about to pasa him, «hilo the plaintiff in this cal»- ms informed by the tracks themselves that a ear might be expected at any moment, and that he might have seen it if he had looked for it. As was said in Vincent vs R. Rd., 48 A., 935:

"A railroad track of itself has been held to be a warning af danger.*

It is therefore ordered that the judgnent herein be reversed, and that there now be judgment in favor of the defendant the Vest New Orleans Light and Traction Company and against the plaintiff Sr. Charlee ?. Gelbke dismissing his demand at his cost in both Courts.

March 6th., 1919.