text:
      Court of Common Pleas, Lebanon County,

      June 28th, 1867.
    Weimer v. Weimer.
    In an action for a divorce, when the respondent proposes to defend by proving adultery on the part of the libellant, he must give a full and complete notice of the special matter about to be proved, having been notified in writing so to do, or the evidence will be rejected on the trial. A notice that merely states the acts to have taken place at certain places, naming them, between certain undefined periods, is not sufficient.
    The fact that this evidence was not known to the respondent until the Saturday before the -Monday on which the court met is no excuse. This is not after-discovered evidence, upon account of which the court will grant a new trial.
   By the Court.

All of the reasons assigned, and those raised on the argument of the motion for a new trial in this case have been carefully considered. On the trial of the cause three questions arose: First. Was the wife guilty of the adultery charged? This was established beyond any reasonable doubt. Second. Was there condonation on the part of the husband? That question was fairly submitted to the jury on all of the evidence, and determined (as we conceive correctly) against the respondent. Third. The wife endeavored to recriminate by proving that the husband had been guilty of similar acts of infidelity on his part. How far she might have succeeded had her evidence been received, we are unable to say; but the court decided that according to the rules of law it must be rejected, no proper notice having been furnished to the libellant of the matter intended to be proved, as required by the rules of practice, on the respondent being notified so to do. Whether the evidence was or was not properly rejected is the principal question now to be considered. We thought on the trial, and still think, the notice of special matter furnished the libellant was too vague and loose, and insufficient to justify the introduction of the evidence offered. The safety of suitors requires that these notices should be definite and certain. More than one hundred years ago Lord Hardwicke, then Chief Justice of England, declared “that these notices should be almost as certain as special declarations;” the legislature designed them to be in the nature of cross actions, and they should be expressed with great certainty, that the plaintiff might be able to make a proper defence to them (Buller’s Nisi Prius, 179; 1 Sellon’s Prac. 329). To the same effect is the law as stated in Gilpin v. Howell (5 Barr, 53), where it is said, “ The rule of practice, which sanctions a call for particulars, has for its object definite information to the antagonist party of the cause of action.” To this may be added 2 Saund. on Pl. and Ev. 699; 3 Pick. 436; 3 W. & S. 61. In Moatz v. Knox (1 Jones, 270), it is said, “The sole object of notice is to give the adverse party an opportunity of testing the accuracy of the facts sworn to, by inquiries made at the place, and about the time they transpired.” And again, “The main facts, places, etc., ought to be specified, to give the opposite party an opportunity of examination and scrutiny.” This general doctrine has always been applied to both libellants and respondents in proceedings in divorce. Each may be required to accurately specify the particulars relied on by way of claim or defence; and it has superseded in this State the long and complicated recitals customary in the ecclesiastical courts. Butler v. Butler (1 Parsons, 332). The notices served on the libellant in this case of the intended proof of acts of adultery, are of the most loose and uncertain character, not calculated to inform the party of either the place or person with whom the adultery was committed, so as to enable him to meet the charge. They merely state such acts to have transpired in Philadelphia, in Beading, and at Lebanon, between certain undefined periods, are little more certain than the general charge contained in the answer, and furnish no such information as would enable him to meet the allegations by proof. We consider that the evidence was properly rejected. It is urged, however, that the notice was as full as could be furnished, nothing more definite being known at the time. It is the misfortune of a party not to be able to ascertain the facts in the cause, and sometimes equally unfortunate, when they are unable to procure the proof; but their adversary must not suffer for their want of definite knowledge. In this case it is conceded that the name of every witness, and the facts to be proved by them, were known to defendant’s counsel on the Saturday before the April court at which the cause was tried. Yet no notice was then given. Had it been done, and the libellant objected on account of the brevity of notice, it might have been good ground for a continuance.

Lastly. We are asked to grant a new trial on account of after-discovered evidence; and the ex parte depositions of several females have been read on the hearing of the motion. The facts all appear to have been known before the trial, and the witnesses were in attendance; but their testimony was rejected for want of legal notice, as already stated. This can in no sense be called “ after-discovered evidence.” To entitle it to be so considered, it must appear that the fact, or-the ability to prove it, was unknown to the party. Even the failure of his witnesses to attend is no ground for an application, for a postponement should be requested. It must not be merely cumulative or corroborative evidence, which this is, tending to establish the same fact to be proved by Dr. Guilford; and it must be of such a character as would probably produce a different result, of which we are by no means certain from the nature of the evidence contained in the depositions or the character of the witnesses. The depositions are themselves entirely inadmissible on the hearing, having been taken ex parte, and could only be used as the foundation of the motion.

Gobin, for plaintiff.

Derr, for defendant.

We cannot grant new trials on account of mistakes or want of knowledge of either counsel or client; and as in our opinion the substantial merits of the present case have been reached, we should not promote tha cause of public morals, by permitting a re-examination of the facts adduced on the late hearing. s

The motion for a new trial is refused.


source: Caselaw Access Project

author: By the Couet.

license: Public Domain

text:
      Court of Common Pleas, Lebanon County,

      July 6th, 1868.
    Miley v. The Lebanon National Bank.
    When the wife of one of the jurors was a first cousin of the wife of one of the parties, that is a good reason for the challenge of such juror or for the granting of a new trial, if the relationship was not discovered until after the cause had been tried.
   By the Couet.

This whole case on the evidence is obscure and unsatisfactory. It is hard to tell whether the note -held by Miley, deceased, was owned by him, or came into his hands by accident, or as assignee. It could, one would think, be> shown by the books of the bank which paid it, and whether Miley lifted it as an indorser. Unless a debt of Stimpler or of‘Wentz & Stimpler, it is scarcely to be supposed that it went into the large bond. The deposition of Wentz throws little, if any, light on the case; nor can much be collected from the various accounts on file. Possibly all may be more satisfactorily explained hereafter.

We feel ourselves constrained to grant a new trial on account of the connection of one of the jurors to. the plaintiff. The question of relationship was propounded to the jurors, was not stated by them, was unknown to the defendant’s counsel, and probably to the plaintiff’s counsel also. It is fair to presume that the juror did not understand the question as applying to affinity, but merely to consanguinity. It now appears that the juror and plaintiff are married to first cousins, which was good cause of challenge to the favor. Although we were not dissatisfied with the verdict oh the evidence before us, yet we must keep the streams of justice not only pure, but above suspicion. If this motion depended on the verdict being against the weight of evidence, it could not be disturbed for two reasons. 1st. The evidence is not very decisive either way. 2d. It is by no means clear that a second trial will be attended with any different result.

Miller, for plaintiff. ■

Derr and Weidman, for defendant.

But the plaintiff knew of the relationship, and should have mentioned it. Failing to do so may have been an oversight; but we cannot permit him to avail himself of the verdict.

A new trial must be granted, the costs to abide the event of the suit.


author: By the Court.

text:
      Court of Common Pleas, Dauphin County,

      March 9th, 1868.
    Harvey v. Earl.
    It was agreed between plaintiff and defendant that an outstanding draft by the former on the latter, if paid, should be allowed as a credit upon an award of arbitrators. The draft was paid, but the plaintiff refused to allow the credit. Hdd, that the court had no power over the award, and could not allow the set-off.
   By the Court.

The evidence shows that at the time of the hearing before the arbitrators, there was an outstanding order drawn by the plaintiff on the defendant, in favor of a third person ; accepted and, in part but not wholly, paid; and that it was objected to by the plaintiff as a credit. It was thén agreed that, if paid thereafter, it should be allowed as a credit against the amount awarded. The defendant proved that he has since paid and lifted the order, and demands the credit; but the-plaintiff refuses to allow it, insisting that the award is conclusive of the amount due, and being an appeal from the judgment of a justice, the defendant is forever barred from recovering anything on account of that payment. This conduct appears to be very dishonest ; but we have no control over the award, nor can we allow the set-off. Awards under the compulsory arbitration law can only be set aside on account of corruption or misbehavior of the arbitrators, or undue means used in obtaining them. This is merely a violation of a promise, and the only remedy of the party was an appeal. It is probable that the defendant can yet have redress by an action to recover so much of the order as was paid by him since the award, as he had no right of action which could be set off until the order was paid. If paid in part, he could have set it off, pro tanto, and that portion cannot be recovered. If no part was paid to the holder of the order at the time of the award, the defendant can sue for and recover the whole, as it was not the lawful subject of set-off at the time of trial. If the defendant had a judgment against the plaintiff for this money, we could direct it to be set off against that held by the plaintiff. However unfair we may consider the conduct of the plaintiff in this case, we must not warp the law to give the defendant redress. “ Favorable cases make bad precedents” is a sound legal maxim.

Smith, for plaintiff.

Fleming, for defendant.

The rule to show cause why the set-off should not be allowed is discharged.


text:
      Court of Common Pleas, Dauphin County,

      March 23d, 1868.
    Shartzer v. Rutter.
    Tlie prosecutor in a 'criminal case is not liable for the costs of the commonwealth’s witnesses, and a promise to pay them is void for want of consideration.
   By the Court.

The evidence in the within case shows that Putter had commenced a criminal prosecution in court for a conspiracy ; that the plaintiff and others were subpoenaed and attended as witnesses on behalf of the prosecution. Therefore, they were witnesses for the commonwealth, and Putter, the prosecutor in that case, was not liable to them for their costs (Stein v. Zeigler, 1 W. & S. 259). He said to all of the witnesses, the plaintiff among others, to stop here (at court), and they should be paid for their time,” and according to the statement of Straw, “ that he would see them paid,” though this was not said to Shartzer; but we will treat it for the present case as if addressed to him. Was the promise binding? According to well-established principles, such promise is void for want of consideration. The prosecutor is under no obligation to pay the witnesses, and they are obliged to attend. A promise to pay money to a witness, regularly subpoenaed to give evidence at a trial, as a compensation for his loss of time, is void. So a promise to pay money to a sheriff in consideration of his executing a writ, because it is his duty to do it. So a promise by the captain of a vessel to pay money to his crew, • as an inducement to excite extra exertion during a storm, because a sailor is bound to use his utmost exertion to save the vessel (Addison on Contracts, 14*; Cro. Jac. 103; 4 Moore, 300; 1 B. & Ad. 956 3 Bos. & Pul. 615j 6 Esp. 129; Parke’s Cases, 72). These principles clearly show that the promise proved was without consideration, is void, and no action can be supported thereon.

Mumma, for plaintiff.

Fleming, for defendcmt.

Judgment must be rendered in favor of the defendant on the point reserved, non obstante veredicto.


text:
      Court of Common Pleas, Dauphin County,

      June 23d, 1868.
    Fitting v. Glassbrunner.
    School directors have no authority to levy a tax for the purchase of school-books to be used in the public schools of the district.
   By the Court.

This case presents a single question. Can the school directors levy a tax for the purchase of school-books to be used in the common schools of the district?

There is no power to assess and collect taxes in Pennsylvania unless conferred by act of Assembly; and the subjects of taxation, and the objects for which it is to be imposed, are generally designated in the statute. The legislature has, from time to time, carefully defined the powers and duties of the school boards, and if the purchase of school-books is a part thereof — if the directors are authorized to procure them for the use of the common schools, they must possess the power to pay for them out of the common fund. If they have no power to buy, they cannot levy a tax to pay for an unauthorized purchase.

The school directors are required to establish a sufficient number of schools within their districts to educate all of the children therein, between certain ages, who shall apply for admission. To effect this, they are authorized to rent or build a sufficient number of suitable school-houses, to purchase or rent ground for that purpose, to levy a tax not exceeding a certain percentage on the county and State assessments for the erection of houses, to borrow money at not exceeding a certain percentage on the valuation of property for such purposes, to determine the amount of taxes required to keep up the common schools within the year, and to levy a tax to effect the same, not exceeding the amount of State and county taxes authorized by law. To purchase all the necessary furniture and fixtures for the schools, and to supply proper fuel. They are also to select and employ suitable teachers, direct what branches of learning shall be taught, what books shall be used, and decide upon a series of school-books in the different branches to be taught during the coming school year. But no member of the board, or other person connected with the common schools, can be interested in the furnishing of books, stationery, or other supplies for the school, or receive any compensation to promote their sale.

Under the power to provide the “proper eonveniences” for the school-houses, the board has full authority to procure not only the proper seats, desks, stoves, and other apparatus to make the scholars and teachers comfortable, but also those articles used by all, and necessary for public instruction; such as blackboards, maps, charts, globes, a large dictionary, etc., intended for the benefit of the whole school. But can the directors obtain the school-books and stationery for the use of the scholars, and assess and collect taxes from the property of the district to pay for them, or make payment out of the school fund ? That they can levy no tax for this special purpose is very clear, as the objects for which the same may be laid are carefully specified, with the highest amount for each object. It is said in the- directions furnished by the State superintendent at No. 227, in enumerating the purposes of expenditure, after correctly stating them generally, and books for indigent children.” We can find no warrant in any act of Assembly now in force to sustain this item. Under the law as it stood prior to the introduction of the general school system, the commissioners of the county were required to pay for the education of indigent children, including the necessary books and stationery for their use, out of the public treasury, but that law has been long since supplied, and, if not in terms, is repealed by implication. But even if in force, it must be followed, the requisite proof laid before the county commissioners, and the county at large, not the school district, pay the expense. Possibly the item may be sanctioned by some statute, but if so, it has escaped our observation. The tax now brought in question is not levied for the benefit of the indigent, but to procure books of a certain description for all the scholars of the district. It would seem to be a separate tax to purchase books. There is certainly no express power of that character conferred on the school board, nor can it exist by implication. It might be sufficient for this court to determine that there is no authority either to levy a tax for the separate purpose of purchasing books, or to pay for them out of the funds lawfully raised for the support of the schools, without looking to the question of expediency. It may perhaps be safely conceded that, in construing a system of laws, public expediency or great inconvenience may be considered in their interpretation, so as to avoid the one, and promote the other. But in conferring the power on the school directors to-purchase all of the books required in the district, we overburden the system, already complained of as the highest and most onerous tax paid by the people. Sound policy requires that this tax shall not be increased.

Parents should feel some portion of the weight of educating their own children, and can generally, with very little exertion, obtain the necessary school-books. If the books themselves are public property, they will be more carelessly used, and less cared for, than where each child owns those purchased by its parent. Besides, if the board can buy books, it may stationery also, which would lead to a general system of waste and extravagance. Taxation for the support of common schools is already more onerous in this State than for any other object; in many districts is equal to or greater than all other taxes; and every new subject for taxation should be' carefully avoided, lest we break down the whole system. At this time a tax for the support of schools and building school-houses may amount to twenty-six mills on the dollar, equal to one-half the rental ordinarily obtained for agricultural property. If that is to be increased, the power so to do should be conferred by clear’ legislative enactment, which we deem highly inexpedient. The fact that county commissioners were authorized to purchase books for the indigent has been used as an argument to show that school directors possess the same power; but in our opinion a contrary’inference should be drawn from that enactment. It shows that when the legislature designed to authorize such purchase, it was done in express words. The school board does not pretend to confine its action to the “ indigent.” but to buy all of the books used in the schools.

It must be borne in mind that not more than one-half of the people have the benefit of these expenditures. At least one-fourth of the taxpayers have no children to educate, and another fourth do it invariably at their own expense. There is not much justice in heavily taxing one-half the community for the sole benefit of the other half. We have already said that no power is conferred on the directors to purchase books for the use of the schools, and this idea is strengthened by the provisions to buy for a school library, which is expressly conferred where the funds are voluntarily raised, but in no event is any of the public money to be expended. ’ The directors are only used as instruments for selection and purchase. "We are clearly of the opinion that the purchase of books for public use as set forth in the stated case, was illegal. The tax assessed to pay therefor is unauthorized, and cannot be collected.

Simonton, for plaintiff.

Lamberton and Mumma, for defendant.

Therefore, judgment is entered against the defendant for $13 and the costs, as per the agreement in this case submitted. Where the tax has been paid voluntarily, it cannot be recovered back.


text:
      Court of Common Pleas, Dauphin County,

      March 28th, 1868.
    Seal v. The Northern Central Railway.
    An injunction will not be granted to restrain a railroad company from the use of land taken by it some fifteen years before the filing of the bill, and used continuously afterward, even though the land belonged to a feme covert, ■the company had neither paid for it nor tendered a bond to secure the payment of the damages.
    Although under such circumstances, a continued use of the land may be a nuisance, yet there has been too great laches on the part of the plaintiff, nor does her coverture remove the estoppel.
    The plaintiff has ar. adequate remedy at law by ej eetment, and in such case an injunction will not be allowed.
   By the Court.

The facts disclosed in the bill and answer present the following case:

The plaintiff’s title to the land, on which it is complained that the defendant has intruded, commenced prior to 1836, when she obtained possession on the death of her father, who was tenant by the curtesy. Partition was made between herself and brother in the year 1849, of the whole tract. This portion fell to her share. She married William J. Seal in 1845, and she and her husband resided together on the premises until his death, in May, 1867. In 1853, the defendant by its engineers and agents entered upon the premises, took possession of some two acres of ground designated, built a dam on a small watercourse, laid pipes therefrom to carry water to a station to supply their locomotive engines, and has continued in possession ever since.

The road was completed in the year 1856, is one of the great thoroughfares of the country, and it is averred that this water-station is very essential for its use.

The plaintiff states that the entry on the land was'without any license, or bond given to secure the damages, as required by law. The defendant avers its belief that a license to enter and hold was obtained, but owing to a change of its officers, the same cannot be established at this time, on so short notice; and says that it has long held the peaceable and undisturbed possession of the premises, without any claim for damages, before the 18th day of December, 1867. The plaintiff asks for a special injunction, on the ground of irreparable injury. The defendant by its counsel presents the act of Assembly of April 7th, 1866, regulating railroad companies, as a bar to the plaintiff’s claim, on account of the lapse of time. The law bars all suits for damages for right of way, or use and occupancy of land, by railroad companies, for the use of their railroads, unless an action shall be brought within five years of the time the land is entered upon, and within three years after the road is in operation. This would clearly cover the present case, but for the proviso, which gives to any person who would be sooner barred by the act, two years from the date thereof to proceed and prevent the bar. The plaintiff has filed her bill within two years from the passage of the act, her claim, therefore, does not come within it. Is this a proper case for equitable intervention? And is the plaintiff entitled to the remedy asked, — a preliminary injunction ? It is very clear that it is not the legal method of recovering her land, wrongfully taken, as is complained. That can readily be effected at law by an action of ejectment. There is no occasion to ask for the interposition of a court of equity. But it is said that the taking in the present case was without color of authority under the charter of this corporation, as no contract was made with the owner for a release of damages, and no bond filed to cover them, as required by law. Taking this for granted, it proves that the defendant, in entering on the premises, was a trespasser, could have been sued for the trespass, or restrained by injunction from committing it. But as fifteen years have run around since it occurred, the defendant being all of that time in the peaceable and undisturbed possession of the premises, holding adversely to the plaintiff and all of the world, it can no longer be treated as a trespasser, but must first be turned out by an action of ejectment, and then sued for the mesne profits. The entry which commenced by trespass has ripened into an adverse possession, from which the intruder must be removed before the owner can resort to that remedy.

It is said, however, that the wrong here complained of is not a transient, sudden act of trespass, evanescent in its character, but is continuous and abiding, is in the nature of a nuisance, which may always be restrained. Courts of equity have, under' some circumstances, and to prevent a multiplicity of actions, issued injunctions to prevent a continued act of trespass, and our own courts have exercised a like power where a public right is invaded or disturbed, in order to secure such right. But where an individual or corporation has taken permanent possession of the property of another, and been suffered for a long time to retain it, we are not aware of any case in which equity has interfered by injunction, to restrain the act, or restore the possession. In all of the cases cited, where the right about to be invaded was of a private nature, the aid of equity was asked before the act was done. It was because it was threatened and about to be commenced, or actually commenced but not consummated, that equity interfered. Where there is adequate remedy at law, equity will not interfere (1 Grant, 412). The act of Assembly gave express power to proceed in equity to ascertain the right, recover possession, and call for an account of certain coal mines, or rather undeveloped coal rights. Yet the Supreme Court held that the law was in violation of the Constitution, because it was a corporeal right, to recover which the party would support an ejectment, and the legislature could not take from the defendant the right of trial by jury (6 Wright, 488). Here the plaintiff’s property is actually in the defendant’s possession, without right, as she says in her bill, and most clearly she has ample remedy at law, if anywhere.

In many of the cases reported, equity has interfered to restrain acts of nuisance against the property of others, as obstructing ancient lights, or opening lights to overlook the property of another; one man diverting water from his land or house, and casting it upon that of his neighbor, digging so near his line as to endanger the foundation of another’s wall, or overflowing his neighbor’s land. Here there was another remedy. Yet that in equity was preventive, and could be used when the act was about to be done. So of trespasses about to be committed. It is often to the interest of all parties, and of the community, to have those rights determined in advance, before there shall be large expenditures of money, and hence the aid of equity is invoked. It has often been said that an injunction is the strong arm of equity, and ought never to be extended in a doubtful case, except one where great injury will be sustained, and courts of law cannot afford adequate or commensurate remedy in damages; the right must be .clear, and the injury impending or threatened of a character irreparable (Baldwin, B. 218). It is only granted for the purpose of preserving the property until a legal decision of the right can be had; and to entitle the plaintiff to such an interference, pending the decision of his legal title, he must show not only a strong prima fade case, but that he has been guilty of no acquiescence or delay in asserting his right (2 Eden on Injunctions,.by Waterman, note, p. 259, 2). There is nothing which will call in the aid of a court of chancery but a pure equity and reasonable diligence.

The court will also take into consideration the injury or inconvenience to the defendant, and the expense to which it would put him in case of his being in the right, and fairly weigh and balance the one against the other (2 Eden, ut supra).

There has certainly been long acquiescence and unreasonable lying by in the present case. There must have been an original grant of the land, or license to use the water, or the plaintiff and her husband looked on for a period of fifteen years, and saw the expenditure of money by the defendant in preparation for its use, and the constant occupancy of the land for that period, without protest, objection, or any notice of their claim. This is such act as equity will not countenance. But it is said the plaintiff during all of that time was a feme covert — not accountable for the acquiescence or delay of her husband. Courts of equity will not hold either infancy or coverture any excuse for silence when the party ought to speak, and such silence operates as a fraud upon others (1 Story’s Equity, s. 385). Fonblanque (Book I, ch. 3, s. 4) declares neither infancy nor coverture shall be any excuse in such a case.” (See also 9 Mod. 33; 2 Eq. C. abd. 489; 1 Bro. Ch. E. 353.)

Although courts of law formerly looked upon those laboring under legal disabilities as powerless to act, and not accountable for their silence, yet they never were so treated in courts of equity, if competent in point of fact, and relief has been denied them when it would operate as a fraud upon others, and the infant or feme covert was left to their remedy at law.

Where a party has been guilty of great laches and connivance in suffering another to erect a nuisance, the court has refused to interpose (2 Eden on Injunctions, by Waterman, 274).

There is another ground of objection to the plaintiff’s bill. We are asked to make a decree which will materially incommode the proper management of a great public work, — the running of the cars on the defendant’s road. It is said that this water-station is essential to its operation, and we have many cases where equity Avould not lend its aid to stop the carrying on of a large manufacturing establishment (Attorney-General v. Claver, cited in 2 Eden, p. 274). And certainly not before the right was established at law. We refused, partly on the ground of public inconvenience, in the case of Heilman v. The Union Canal Co. (1 Wright, 100), on a full and careful examination of all the authorities, though that part of our opinion is not noticed in the Supreme Court. That court within the last few weeks refused to restrain a large manufacturing establishment in the use of bituminous coal in the city of Philadelphia, although complained of as a nuisance, by rendering the private residences in the neighborhood almost uninhabitable, the court considering the factory of great general utility. Equity will very carefully weigh the advantages and disadvantages to the community and individuals, before interposing the power of the court by injunction, and where the work erected and in'use is highly beneficial to the many, will leave the few complainants to seek their remedy at law.

Alrioks, for plaintiff.

Kunhel and Herr, for defendant.

As we have already said, the plaintiff can try her right to the land she claims in an action of ejectment; and should she recover, turn the defendant out of possession. It can then proceed under the act of Assembly to have the property set apart for the use of its road, and pay its value.

The injunction is refused, and bill dismissed, a decree to be drawn up to that effect.


text:
      Court of Common Pleas, Dauphin County,

      June 23d, 1868.
    Bay & Brother v. Thompson et al.
    A guarantee must oe accepted and acted on, and notice of such acceptance must be given to the guarantor in order to bind him, unless the acts of guaranteeing and acceptance are simultaneous. Notice of the amount furnished and the sum claimed must also be given to the guarantor in order to bind him.
   By the Court.

Three questions of law were raised by way of defence on the trial of the case.

1. There could be no recovery for more than the bill of castings being made at the time the guarantee was drawn and delivered.

2. To make the alleged guarantee ■available as a contract, it must not only be accepted and acted on by the plaintiffs, but notice thereof given to the defendants.

3. There should have been notice to the defendants of the amount of castings claimed under the guarantee, and demand made thereof, before bringing the suit.

These are substantially the points.

The writing on which the suit was brought was in these words:

“Habbisbubo, January 1st, 1866.

Messrs. Bay & Brother.

Gentlemen-. Ye or either of us do hereby guarantee that Messrs. Man & Thompson will .deliver the pig metal in exchange for the castings you are making for them in a- reasonable time after they blow in their furnace. Kirk Haines,

W. G. Thompson.”

The evidence shows that the only castings then ordered, and being made, were the hot-blast sluices and brick staffs, amounting in all to $161.10, delivered on the 2d and 4th of January, 1866; and we instructed the jury that the guarantee covered no other articles. To that opinion we still adhere, and are supported in it by Anderson v. Blakely (2 W. & S. 237), and Alricks v. Higgins (16 S. & R. 213).

2. No notice was given to the defendants that their guarantee of the 1st of January, 1866, was accepted and acted on, or of the amount of castings furnished on the faith of it, until this suit was brought. It is now broadly contended that no notice of acceptance was necessary. It is sufficiently evidenced by the delivery of the castings, as the writing is absolute in its terms. For the distinction between writings absolute in their terms, and those containing a proposition tending to a guarantee, Pitman on Principal and Surety (pp. 29 and 30), is relied on, and the oases therein cited, and when examined they certainly have that ap-> pearance; but the law appears to be settled otherwise in the United States, and even the English cases ai’e not easily reconciled. We think that Parsons in his work on contracts (vol. i, pp. 500, 501, 502, of 2d edition), has hit upon the true distinction. “If one goes with a purchaser, and there says to the seller, Furnish him with the goods he wishes, and I will guarantee the payment/ and the seller thereupon furnishes the goods, this would be sufficient notice to the guarantor. But if the guarantee were for a future operation, perhaps for one of an uncertain amount, and offered by letter, there should then be distinct notice of acceptance and also notice of the amount furnished on the guarantee, unless the amount be the same specified in the guarantee.”

Story on Contracts (s. 873), lays down the same general rule as to acceptance and notice thereof, giving as almost the only exception, the guarantee of a particular note or bond, when acceptance will be presumed. The same distinction is spoken of by several of the judges in their opinions. The notice of acceptance should always be given promptly, and the amount of the articles furnished in a reasonable time (1 Mason, 323), and in every guarantee for future advances the acceptor must give prompt notice that he has accepted, and agreed to act under it (1 Story’s R. 22, see pp. 31 and 32).

The doctrine appears to be perfectly settled in the Supreme Court of the United States. Where the guarantee is on a note for a specific sum, notice of acceptance is not necessary. But wherever the guarantee is prospective, looks to an act afterwards to be done, to future transactions, is not for a specific, certain amount, notice of acceptance must be given (10 Peters, 482, especially pp. 494, 5, and 6; see also, 7 Cranch, 91; 5 Peters, 624; 7 Peters, 125).

In Adams v. Jones (12 Peters, 207), it is declared that this is no longer an open question. And, in that ease, the guarantee looks quite as much like a positive, present undertaking, as does the one now in suit.

That general doctrine is sustained in 10 Howard, 475. But after notice of acceptance, that case decides that prompt notice of the amount advanced on the guarantee need not be proved, provided the principal was insolvent when the debt fell due, for there could then be no loss from the want of notice.

This doctrine is not confined to that court; we find it established and recognized in the jurisprudence of several of the States. In Walker v. Forbes (25 Alabama, 139), it is declared that notice of the acceptance should be promptly given, and of the amount furnished in a reasonable time, and that was in as positive a guarantee as this (see also 2 Alabama, 373).

In Maine a similar rule was established at an early day, Norton v. Eastman (4 Greenleaf, R. 521). The promise was to pay the amount trusted to the principal, not exceeding $75, or at the end of one year, $100, and held that notice of acceptance was indispensable. There the promise to guarantee was positive. The principle of this case is reiterated in Tuckerman v. French (7 Greenleaf, 115, also in 22 Maine, 175). The same rule prevails in Connecticut (13 Conn. 28), and in Massachusetts (12 Pick. 135; 22 Pick. 228). It is held that in the guarantee of a debt yet to be contracted, and uncertain in amount, the guarantor must have notice of the acceptance, and the credit given on the faith of it (see also 11 Met. 361).

The law is, to some extent, held otherwise in the State of New York, of late years (24 Wend. 35; 6 Hill, 243; 3 Comstock, 212). The rule was formerly the same as in most of the other States (17 John. 134), and in that case the guarantee was in very positive words.

Some of the new Western States, which generally implicitly follow the courts of New York in all of their mutations, have adopted the rule there recently laid down; such is, we believe, the case in Indiana and Wisconsin. In Ohio, the courts adhere to the doctrine of those of the United States (10 Ohio R. 490).

The courts of Pennsylvania have laid doAvn the rule broadly, and adhered to it inflexibly. In Kay v. Allen (9 Barr, 320), the Avords of guarantee were very strong. “I would recommend P. M. M., and would go security for him to any reasonable amount; so you can fill his orders and feel yourself as secure as when I was doing business with you;” and held that notice of acceptance must be given, and that is said to be necessary in every case, except where the agreement to accept is contemporaneous. In fact that is no exception, for the parties being together, the whole matter is agreed on at once.

This is reiterated in Unangst v. Hebler (2 Casey. 150), and still more enlarged on in Kellogg v. Stockton & Fuller (5 Casey, 460), where the substantial words were “Please furnish him with a suitable stock, and all will be right,” yet held that notice of acceptance was indispensable, and Chief Justice Lewis says that there is no exception to the rule, for the contemporaneous act is no exception; the guarantee and acceptance are simultaneous acts. The question is no longer an open one, in this State, and probably, sitting in an inferior court, we should no further reason on it than to see that the case submitted for our adjudication comes within the rule. The words of the writing sued on are very positive: “We, or either of us, do hereby guarantee,” but it is for an act to be done at an uncertain time in the future, the delivery of the pig-metal within a reasonable time after they shall blow in their furnace. There is no certainty as to the amount, like the guarantee indorsed on a note or bond, nor of the time when the act shall be done. It is no more binding than a letter of credit which promises payment on consideration that goods are furnished or money lent.

The party receiving must in this, 'as in those cases, say, “ I accept your guarantee and shall act on it.” Several of the promises, where notice of acceptance was declared to be indispensable, were just as strong and positive in their terms, and a vast deal more definite in amount than this, which is most uncertain. It is a proposal, not to guarantee payment, but that the parties for whom they propose to become security, shall perform a collateral act, deliver the pig-metal, uncertain both as to time and amount. But to bring it within the rule laid down in 5 Casey, the acts of guaranteeing and accepting must be concomitant and simultaneous, or notice of acceptance given. That was not pretended here, and we still entertain the opinion expressed to the jury on the trial, that for want of this notice, the plaintiff cannot recover. It never became a binding contract.

3. No notice was given of the amount furnished under the guarantee or the sum claimed thereon.

This has been held in several respectable courts to be necessary before bringing suit. In Babcock v. Bryant (12 Pick. 133), it was held that reasonable notice must be given of the amount claimed under the guarantee, and a special request to make payment on the part of the guarantor before bringing suit. The plaintiff was there permitted to discontinue, to enable him to make the request, and bring a new suit. To the same effect is Norton v. Eastman (4 Greenleaf R. 521). The science of pleading shows that notice of the amount claimed and demand of payment are necessary (Comyn’s Digest, title Pleading, c. 69, 73, 74). There can be no doubt but that this promise was a collateral undertaking.

Alrieks, for plaintiff.

Herr and Lamberton, for defendant.

Man and Thompson being the principal debtors, the amount due was known to the plaintiffs alone, and not to the defendants, who, from aught that appeared, did'not know that a dollar’s worth of castings had been advanced.

Several cases show that notice of the amount furnished must be given to the guarantors in a reasonable time after delivery, even when notice is given of the acceptance of the guarantee, else the guarantor will be absolved (22 Pick. 223; 11 Met. 361). Other eases to the same effect might be cited. The necessity of this notice might be obviated, as held in Gibbs v. Cannon (9 S. & R. 198), by proving that the principal debtor was insolvent at the time the claim fell due, and so continued. This was proved on the trial of the present cause, and it may be possible that such proof would also dispense with the necessity of a demand before suing.

The question is unimportant in view of our decision on the last preceding point, as that is decisive of the cause; but having ruled the one principle against the plaintiffs, we should so decide the other, to enable all to come up at once in the Supreme Court.

The motion for a new trial is overruled, and judgment directed on the verdict.


text:
      Court of Common Pleas, Dauphin County,

      September 1st, 1868.
    Lawrence’s Executor, for Use of Brown, v. Rutherford et al.
    Where the plaintiff in a suit accepts an appearance without service of a summons, and the attorney appears for the defendant without authority, the court will set aside the judgment as irregular, and the plaintiff is left to his remedy against the attorney.
    Such a judgment will be opened even when several years have elapsed since its existence was brought to the knowledge of the defendant, and it had been assigned to a party without notice of the defect.
    Catlin v. Robinson, 2 W. 371, distinguished.
   By the Court.

The facts as we collect them from the records, affidavits, etc., in this case are substantially as follows. Mr. Lawrence was, in his lifetime, appointed sequestrator, to take charge of the effects of The State Fire and Marine Insurance Company,” situated in Harrisburg, and as such sequestrator, lent to J. P. and A. Rutherford, one thousand dollars, and took their note for the amount. It is predy clear from the evidence, that their object in borrowing was to pay a debt of the company, which we may fairly infer from some of the facts in proof, they were individually bound to see paid, and that Mr. Lawrence took the note to secure himself as sequestrator, in case he was not entitled to a credit of the whole in settling his accounts. How this eventuated we do not know, as there is no statement before us of his account, or of the amount of debts due by the corporation. After Mr. Lawrence’s death, suit was brought on the note, dated October 7th, 1859. To the suit Mr. J. C. Kunkel appeared and waived the service of the writ. A copy of the claim was filed September 6th, 1860, and on the 4th of December, 1861, judgment was taken for want of an affidavit of defence. On the 18th of December, 1861, this judgment was assigned to John W. Brown, the then sequestrator, by the executors of Mr. Lawrence, to pay the balance due by the latter as sequestrator. This money was found to be due to Mr. Brown in his own right, on the settlement of his account. There is nothing in the case which shows that Messrs. Rutherford knew of the existence of this judgment until the 27th of July, 1864, when a letter from J. P. Rutherford to Mr. Brown, in reply to one from him, expresses surprise at its entry, does not know how it was obtained, avers payment of the debt in full, and expects to be able to show it. The letter is dated at Chambersburg. At that time Mr. Rutherford was in the service of the United States as a paymaster. We hear no more of this claim from either of the Messrs. Rutherford until after this scire facias issued, when an affidavit of defence was filed, and on the 29th of October, 1867, a rule was obtained to show cause why the judgment should not be opened, the defendants let into a defence, and all proceedings stayed or set aside. Mr. Kunkel states that he had no communication with defendants about this claim, but entered an appearance and wraiver of service of process, because he had acted as their counsel generally in relation to this insurance company, of which J. P. Rutherford was president, and A. Rutherford a manager, after w’hich he forgot the whole matter for a long period. On March 12th, 1866, Mr. Simonton, the present sequestrator, obtained a rule to show cause why this judgment should not be marked for the use of the sequestrator, wdiich, on hearing, wras discharged by the court on the ground that it was the claim of Mr. Brown, individually. This application is said to have been without any privity of the defendants.

If the process had been served on the defendants, and the attorney had appeared for them without authority, it is clearly settled that there would be no ground for opening or setting aside the judgment, provided the attorney was able to respond in damages for the unauthorized appearance. If not of ability, the courts have relieved the party by opening the judgment. The rule appears to be different where there has been no service. We find the subject carefully examined in 1 Exchequer Reports (Welsby, Hurlstone and Gordon, page 1), and the notes to that case. Where a defendant has been served with process, and an attorney appears for him without authority and confesses judgment, the court will not interfere if the attorney is solvent; aliter, if he be insolvent. But where the plaintiff accepts an appearance without service, and the attorney appears for the defendant without authority, the court will set aside the judgment as irregular, at the cost of the plaintiff, who is left to his remedy against the attorney, as in that case the defendant is wholly free from blame, and the plaintiff accepts the unauthorized appearance at his peril. He is the first in default. The same doctrine has been settled in this country, and the judgment has been set aside where there was no legal notice of the institution of the action (3 Y. 546; 2 Watts, 490; 4 Cranch, 436; 3 Ohio, 518; 2 Littell, Ky. R. 186). We have no cases in this State which conflict with this doctrine.

The present judgment would have to be vacated, if there was nothing else in the case. The long delay after the existence of the judgment was made known to at least one of the defendants, is a strong barrier to that mode of action. The letter of Mr. Rutherford, dated July 27th, 1864, shows that he then knew or was informed that the judgment was entered, though he expressed great surprise thereat, and averred that he had a good defence against the claim. Prompt action should have been then taken to have it vacated. Nothing was done for morethan three years, when an affidavit of defence was filed to the sci. fa., and soon after the rule on which we are now acting was obtained.

• The official duties of Captain Rutherford, and his probable absence in the army for over a year, will not account, legally for this delay. If the affidavit of defence filed be true, there are such merits in the case as call for examination; but a judgment should not be vacated for original defects, where the same has been so long neglected. It must be borne in mind that tbe letter referred to was given in evidence ,by the plaintiff to show that the defendants had notice of the judgment, but taking it altogether, it tends to prove a defence on the merits, which is a ground for opening it, and giving the defendants the chance of an investigation. It is said, however, that the court after so great a lapse of time has no power over this judgment, and authorities are cited to prove the position. We are referred to Catlin v. Robinson (2 Watts, 379; 6 W. 513; S. & R. 310; and 9 Casey, 487). On examination, it appears that they were all cases of trials, or reports of referees, and we consider it a settled principle of the common law that a new trial cannot be granted unless moved for within the first four days of the next succeeding term after verdict rendered (3 Black Com. 392; 1 Tidd’s Prac. 320; 1 Sellon’s Prac. 484). And the final judgment is not entered until the term after the trial (3 Black Com. 307).

Etter and Graydon, for plaintiff.

Simonton, for defendant.

But it never has been doubted but that a judgment for default of appearance, or on a warrant of attorney, or other eases where no hearing had been had, could be opened at an after-time, on sufficient grounds and proof of merits. Such has been the uniform practice of Pennsylvania.

We do not consider the counsel on either side answerable in this case. Not that of the plaintiff, who probably acted as was customary in issuing his writ and accepting service; nor of the defendants, who, from his habits of doing business for them, considered that he had authority to appear, and that it would be for their interest to waive the service of process, Doubtless all was rightly intended; but in the multiplicity of business, the counsel forgot to inform his clients, and entirely overlooked the case.

It is said that Mr. Brown isa bond fide holder of this judgment for value, accepted it in payment for his debt, on the faith of the entry of record, and should not now be disturbed. Had he called on the defendants before taking the assignment, and been informed that it was right, they would have been estopped from resisting payment. There is no proof that such course was pursued, and the assignee of a judgment is in no better, situation than the assignor. We do not destroy this claim by opening the judgment ; the lien must remain to secure what is justly due. If Mr. Lawrence lent the money as sequestrator, even to pay a debt of the company, taking a note is strong evidence that he did it for indemnity in case so much ought not to be paid by him on .that claim. Consequently, whatever is required to settle up the trust, and give each creditor or the trustee his lawful due, can be re1covered. If the debt was fully paid as mentioned in the letter, the defence would cover the whole without regard to the state of the trust. We shall order the judgment to be opened, the lien to remain as security for what is due on the note; no advantage to be taken of irregularity in the process or service thereof.

The costs to abide the event of the suit.


text:
      Court of Common Pleas, Dauphin County,

      November 9th, 1868.
    Kreiter et al. v. Hammer.
    A landlord -who has distrained for part of his rent, -will not be estopped from claiming the residue, not exceeding one year’s rent, from the proceeds of a sheriff’s sale of the tenant’s property, nor will the talcing of a note of a third person, when it was not to be taken in satisfaction of the rent.
    A constable’s levy made before the execution came into the hands of the sheriff, will be presumed to be regular, until it is shown, that it is not.
   By the Court.

Several exceptions have been taken to the report of the auditor in- this case. "We shall consider first, the claim of George W. Harris. It is said that he, having issued a landlord’s warrant, and distrained for a portion of what was due, is estopped from claiming any more. It would seem from the evidence, that Mr. Harris had received the note of a third person as part of his rent, and given a receipt for $276.50, “to be a credit when paid.” After a warrant issued to distrain, and before the sheriff’s sale of Hammer’s goods, Mr. Harris discovered that the drawer of the note was wholly insolvent, and gave the sheriff notice to retain his rent for the premises on which the property levied was situated, not exceeding one year’s. This, as landlord, he was entitled to receive, and the fact of distraining for a part, did not estop him from claiming more. He could have issued a second warrant on discovering that the note would not be paid, and distrained for the residue. If he had such right, he could clearly demand the money from the sheriff, raised by a sale of the goods on which he had a right of distress. Unless accepting the note was satisfaction pro tanto of the rent, he could, under the act of Assembly, demand it from the sheriff. Taking the note of the tenant will not debar the landlord from distraining, nor would the note of a third person, unless accepted as satisfaction. Here it most clearly was not, as is manifest from the form of the receipt.

We have but little doubt as to the correctness of the auditor’s decision on the claim of the United States. It is made a lien by the act of Congress, but as the question is comparatively new in our courts, and as the case must be argued on other points, this may be investigated at the same time.

We are by no means clear as to the competency of DeBeck, the constable, to testify in the case; nor are we satisfied as to the validity of his levy. It may or may not be good, and the evidence of the constable may be wholly unnecessary; for if his levy is regular on its face, made on the 19th, and the writ did not come into the hands of the sheriff until the 20th, we must presume it regularly made; and it will rest on the later lien creditors to prove its invalidity. Not having the levy before us, we cannot say whether it required the support of parol to render it valid.

We therefore confirm so much of the auditor’s report as awards $502.45 to George W. Harris, and direct that the same be paid over to him. We are also of the opinion that the question of costs is correctly disposed of. The claim of the United States for $54.47, taxes due, and that of the Washington Coal Company for $77.89, together with the amount awarded to the later lien creditors, is held under advisement, and the question on which those subjects turn is directed be argued.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    SUCCESSION OF MRS. EMILE KRANTZ
    NO. 7210
    CHARLES F. CLAIBORNE, JUDGE.
    December 3rd,1917.
   CHARLES F. CLAIBORNE, JUDGE.

The heirs, of the deceased and her surviving husband both claim to be creditors of the community.

The deceased Magdalena Schenck wife of Emile Krantz was married to him pn July 18th. 1390.

She died intestate in February 1916 leaving as sole heirs her father, Michel Schenck, and several sisters.

An administrator was appointed, A Judgment was subsequently rendered put ting her surviving husband and her heirs in possession of all the property left by her, and directing the administrator to retain in his hands the sum of Three Hundred Dollars until the further orders of the Court. Thereupon the heirs took a rule upon the administrator and Emile Krantz, her surviving husband, to turn over to them this sum of $300 upon the allegation" that the community of acquets and gains was indebted to the estate of the deceased in the sum of $300, being the amount which was received by her and used for the benefit of the community from her father".

Emile Krantz denied the allegations of the rule, and alleged that, if Magdalena Schenck received said amount, no part thereof was used by or for the benefit of the community. He further averred that he had received $166 from the succession of hi3 parents which was used for the benefit of the community, and he asked to be.paid this amount.

There was Judgment in favor of the heirs and against the husband.

From this judgment the husband luttuga Krantz has appealed.

The only evidence in favor of the heirs is the testimony of Elizabeth Schenck wife of W.Maher, a sister of the ddceased and one of her heirs. She testified as follows: " ft. You are a sister of the deceased, Mrs. Krantz?

A. Yes, Sir. was
ft. When/your sister married ?
A. On the 12th. of July 1890.
ft. I show you a document; do you recognize the handwriting?
A. Yes.
ft. Whose is it?
A. Mrs. Krantz.
ft. Your deceased sister?
A. Yes. sir.

The document reads as follows: 'New Orleans 11th. of July 1890,I have reoeived from my father Michael Sehenok $300 Dollars three hundred Dollars "Signed" Miss Magdalena Schenck."

ft. You also reoeived $300 from your father?
A. Yes, sir.
ft. lhat was the share coming to you from your mother's estate?
A. Yes, sir.

Qross- examination:

ft. ..Do you know what your sister did with the $300 after She married?
A. No, I don't. "

Emile Krantz the surviving husband being examined said:

ft. Mr.Krantz, there is a claim made here for $300 that your wife received from her rather. Did you receive that $300?
A. No, not a cent.
Q. Was any of that money used in the purchase of the real estate or household furniture?
A. No, sir.
Q. Did you know that your wife had received the $300 from her father before the succession was opened?
A. It may have been she got it before we é f married/^dont know.
Q. You didn't see it while she was living?
A. No.
Q. She did not hand it to you?
A. No, not a penny.

The receipt by MfsS Schenck is Insufficient^ by itself^to establish a claim against her future husband, Krantz,. or against the future community.

She could not make conclusive evidence for herself or for her heirs by her mere declarations.

The best evidence was the record of her mother's succession; there Is no testimony that her succession had never been opened or that the record was lost. The next best evidence was the testimony of her father, Michael Schenck, from whom, according to the receipt,she received the $300.

He was living in this City and was a petitioner claiming his share in her succession.

In Gillett vs. De Raneo 6A.590 the Court said: "Where the dowry of the wife has not been paid in presence of the notary, she must prove, as against third persons, that it was actually received. The receipt by the husband is not to be entirely disregarded, but is not proof of the fact, unless supported by other circumstances." 35A.778; 3A.142; 5R.292, 347; 7N.S.460; 7M.652 6R.37; 12M.164.

In Nores vs. Canaby 5R.292 (295) the opinion of the Court was: " We do not mean to say, that it will suffice to show, that the party was possessed of particular property, or had a certain «am of money at a time previous to the marriage; it must be proved to have belonged to him at the time the marriage was celebrated."

In Breaux vs. Le Blanc, 16A.145 the wife had acknowledged in an authentic act having received $2153 sometime before the date of .the act. The court said:

" There is nothing however-M. the case at bar to show that the amount claimed was actually received during the marriage; it was Incumbent on the defendant, Breaux Jr., to make this fact certain even as against the heirs of the husband."

Besides, the failure to corroborate the receipt by the testimony of Michael Schenck gives rise to the presumption that it would n'ot have done so. In Pruyn vs. Young “1A.320 it was said: "Where effective proofs are in the power of a party who refuses or neglects to produce them, that naturally raises a presumption that they would, if produced, make against him." Peyton vs. RRd. 41A.866; 38A.779; 36A.841; 35A.694; 20A.97; 1A.1; 11am. & Eng. Enc. Law p.503 (2) , 221d.p.1257 (2).

But if. we admit that plaintiffs have established that their .notJwer received $300 there is no evidence that she delivered that money into the possession of her husband as the law requires to make him liable. In 12M. 164 the Court said: " The property was paraphernal, and true-it is fciaat that the husband is only responsible In case it came into his possession and was enjoyed by him."

And in Newman vs. Cooper 50A.399: " there must be proof that the husband received the wife's paraphernal funds."

It is therefore evident that under the rifles of law the plaintiffs have failed not only to establish that their matter received $300 but they have not even attempted to show that the money was delivered to her husband, Emile Krantz.

But In his testimony the latter completely denies any knowledge of this $300, and specifically denies that he ever received it. This leaves plaintiff in rule withouis a case.

Judging the claims of Emile Krantz by the rules above stated, he has also failed to convince us that they, are founded. He says he inherited $166 from the succession of his parents " Uo.$(4051 of the Docket of the Civil District court. " Why did he not produce the record which was the best evidence? His failure to do so casts a doubt concerning the existence of his claim which is fatal to it. But he has another obstacle to overcome!as far as his claims are concerned, he must prove, not only that he inherited that money, but that it was invested in some manner that enriched the community. 41A.348; 43A.410; 38A.700, 728; 50A.53 and authorities there quoted.

In order to conform to this requirement he says he inherited the money about fifteen years ago and invested it in the purchase of a community property in the year 1911.

He does not account for the use he made of that money in the meantime.

His testimony leaves a doubt in our minds which compels us to decide against him.

It is therefore ordered that the judgment of the District court be reversed in so far as it makes the rule absolute and orders William B.Seeber to turn over to the heirs of Magdalena Schenek wife Of Emile Krantz the sum of three hundred dollars; and that it be affirmed in so far as it rejects the demand of Emile Krantz for $166; the costs of the rule and of this appeal to be paid by plaintiffs in rule, end the co'sts of the reconventional demand to be paid by Emile Krantz.

December 3rd,1917.


author: st. Paul, Judge.

text:
    NO 7217.
    HERMAN LOEB VS H. & C. NEWMAN & CO LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   0 P I If I 0 li-

st. Paul, Judge.

Shis is ail notion for damage to certain RaLes of ootton stored Ry plaintiff with defendant und'or the rules of the Kew Orleans Ohtton Exohange.

She cotton was in the warehouse on September 29th, 1915, on whioh day the City was vieitied by a tropioal hurrican2of unprecedented fury, accompanied Ry a tremendous rainfall.

1'he warehouse was unroofed and partly blown down, and the ootton therein contained tiiereby exposed to the aforesaid downpour, fhis# was known to defendant; also to plaintiff and to the Cotton Exchange.

Under the. conditions,- the defendants did what every other warehouseman in the city of lJew Orleans did, to wit, protected the cotton as best they could, and as soon as they could; and when the ruin ceased exposed it for six or seven days to sunshine and wind for the purpose of drying it; and when it apipeared thoroughly dried they placed* it buck in storage. (See Stern p.2)■

It seems however that the ruin had penetrated deeper than defendant had reason to Relieve, in fact deeper than ever before "in the history of ootton|, (Lorch p. lb) , and the long sun and wind RÍJ^h given it, dried only'the exterior part of the Rules leaving a layer of moisture beneath; and from this mositure damage resulted.

Pretormitting that fact that the damage here claimed was due partly to-stain (i.e. discoloration) caused ip this instance by the mere fact of having Reeh soaked, and th.it pi-.intiff has furnished no evidence -in whioh we can soporate the damage from stain and that from rot, we may say that the sum and substance of plaintiff's complaint is.that defendant should have unbalef the ootton for elimination before again storing it, or in any event should have notified plaintiff.

New Orleans, La, December 3rd, 1917.

In the first place, defendant did noi knew that plaintiff owned the cotton, since it was originally placed there by other parties under negotiable warehouse receipts, whioh plaintiff acquirod; and again both plaintiff and the cotton exchange were well aware of the fact and nature of the hurricanf' and. that the warehouse had been unroofed and partly blown down. (See p. 18)

In the next place this cotton was admittedly certified and stored under the rules of tho.Cotton Exchange, and all witnesses agree that undxr those-rules the warehouseman was without t########»# authority to unbale the/cotton without the consent of the owner and of the Cotton Exchange. The rule in point (No. 21 Sec 15) Reads as follows;

"Any certificate issued under the provisions of this rule (as to grade) shal be invalid, and all liability of the exchange cease, if the cotton represented thereby be in any way handled, whether-for sampling, examination or otherwise,, except when.done under the direction and supervision of the Inspector in Chief."

Vie are of opinion that, under the circumstances of this case defendant did all that any prudent person was required to do for the preservation of the cotton, and was under no obligation to do more; unbale that in any event it was without authority to #### the cotton without instructions from plaintiff and the Cotton Exchange.

She judgment appealed from is correct.

Judgment affirmed.


author: St. Paul, Judge.

text:
    NO. 7226.
    ANTHONY A. VIRGETS VS PRUDENTIAL SAVINGS & HOMESTEAD ASS'N.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

St. Paul, Judge.

This is an action for the return of a deposit made on account of the purchase price of certain property, the title to which is said to be defective; the objection thereto being that certain minor's have an interest in the property which has never been divested.

The facts of the matter are these; Frnest Marchand died owning a third interest in the prooerty. He was survived by a widow in community, Mrs. Georgina Marchand, and four children, to wit, Louis Ernest Marchand, of full age, George D. Marchand, Albert S. Marchand, and Jane D. Marchand, the last three being minors. So that his one third or eight twenty-fourths, vested in his widow for four twenty*fourths, and in his children for one twenty-fourth each.

On September 25th 189b a family meeting, duly convened, authorized the sale of the minor's interest at orivate sale to effect a partition and appraised the whole property at 41200.

This was duly approved and homologated on December Uth, 189b.

On March 11, 1895 the mother asked for and obtained a family meeting to advise the adjudication to herself of the minor's interest at the price fixed by the first family meeting. The family meeting so recommended, and its recommendation was duly approved and homologated; but this was never followed up by a formal judgment adjudicating the property to her, and hence remained without effect. Succession 01 Burguieres 104 La 46.

•Thereafter, towit, on April 2nd 1896, more than a year after the holding of the family meeting and the appraisement made by it, the tutrix sold her interest and that of the minors at private sale for 4300, acting both under the alleged adjudication and under the authority to sell at private sale for a partition. But the sale was to a co-owner, and was not a sale of the whole property.

As we have said, the adjudication to herself was without effect; and as a sale to effect a partition the transfer was also of no effect. First, because at the time the alleged transfer was made it was not lawful to Sell a minor's interest in property at private sale without selling at the same time the whole property; and secondly, becauss the appraisement on which the sale was made and the price fixed, took place more than a year before the sale and had therefore expired, C. C. 1323, 1321;, 1325; Paul vs Lamothe, 36 An 318, 320.

As to the first point (the sale of the minor's share without selling the vhole property) that is cured by the prescription of six months provided in Act 53 of 1912, which runs even against minors; but that prescription runs only when that is the sole objection to the. act.

Other objections, to a partition, however, are cured by no shorter prescription than five years, and that prescription runs against minors .only from their majority. C. C.351;2; Rhodes vs Copper, 113 La 600, 607.

Hence we conclude that it is at least doubtful whether prescription has cured, the title to this property if there be any one whose claims are involved therein and who is still a minor.

And the second shows that there is such a minor. For although George D. Marchand and Albert S. Marchand reached their majority and sold their interests more than five years ago, as shown by the record of Mitchel VS Nagel, No. 93165 C. D. C., yet that same record shows that the third minor, Jane D. Marchand, had died in the meantime;but it does not show when she died or when she reached her majority, if ever. It does show however that she left a daughter named' Julia Schmidt who was still a minor on March 3rd 1911; when her answer was filed in said record.

Under the circumstances, and whilst we disclaim expressing any definite opinion on the rights of said minor, yet we are clearly of opinion that until- her outstanding claim be adjusted or judieally passed upon, the title herein tenured to plaintiff is not such as we should compel him to accept.

New Orleans, La. February 25th, 1916.

Her claim may or may not be good, depending upon certain facts not appearing in this record; but it seems, for the present, to be a serious cloud upon -the title held by defendants and should be removed before they can compel a purchaser to accept it.

The judgment appealed from was for plaintiff and we find it correct.

Judgment affirmed.


text:
    By Judge Godohaux.
    Mrs. A. Zagame vs. Chalmette Laundry Co.
    No. 7242.
    Court of Appeal, Pariah of Orleans.
   Oil wx Q S*

^0,This is a suit ”b¿r a landlord $gainst\his tenant for damages for the alleged destruction by the latter of a certain stable and the concrete floor ^eof on the leased premises and which the tenant refused to replace or restore* The suit was -instituted on December 27, 1916, that is, during the term of the lease which was not to expire until October 31, 1917;‘and upon this incident a plea of prematurity was sustained by the Court and the suit dismissed* The appeal is from that Judgment*

The exception was submitted upon the allegations of the petition and the contract of lease which is made part thereof. From these it is olear that the aot complained of by the landlord is violative of a covenant of the lease itself which prescribes that the "lessee is obligated to make no alterations to said premises." And the lease being thus violated, it is equally clear that an immediate right of action accrues in favor .of the landlord for all damages sustained from the aot of his tenant.

I?or is hi* right to maintain the action postponed by the effect of the further provision in the lease requiring the lessee to return the premises and its ii.-iprove.oenta in good order at the termination of the lease. That clause refers to changas or improvements that the tenant has a right to make un.T-r the terms of the lease and not to those acts wbioh are violative of its express prohibit Lons.

V’.jon the case as presented, that is, solely upon the petition and the lease and without any evidence being adduced that might perhaps show that the acts complained of were necessary for the proper enjoyment of the premises for the- use contemplated by the vjarties, we hold that the alleged destruction of the improvements constituted a broach of the covenant as to alterations upon which the plaintiff may maintain an action without awaiting the termination of the lease.

The judgment is accordingly reversed, the exception of prematurity is overruled and the cause remanded for further proceedings according to lav;, oCfc* defe-idant to pay the costs of appeal and alíanoste to await the final determinaxion of the cause.

Reversed and Femanded.


text:
    NO 7270
    MILTON P. DOULLUT, ET AL VS MARY RUSH, ET AL.
    STATE LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P X H I O H.

St. Paul, Judge.

This action is upon two promissory notes, executed by the defendants upon sufficient consideration, each for the sum of and both due and unpaid.

Defendants do not admit the debt, but their answer sets up not a single reason why they, should not pay. The faot of the matter being that plaintiffs, claiming that the notes were given under a lease, ask for the recognition of a lessors privilege; whilst defendants claim that the alleged lease is in law a sale,, and they ask that it so be dea-larde.

The# instrument in controversy is in the form of a lease for twenty-two months; the rent is payable in instalments of $500 per month. The lessees are to pay, in addition to rent(the ##### taxes, ajLt Insurance / and afck charges upon the property. The option is given them to purchase the property at any time during the term of the lease for the sum of $85000 with 7$ interest from the date of the leaBe; and should they avail themselves of this option they are to be entitled to a credit for all the rent paid. The option is to be good only so long as the lessees are not in arrears for their rent. This lease, option or sale, however we may oall it, contains no clause by whioh the defendants herein bind themselves to pay the whole sum of $25000, but on the contrary they have bound themselves only for the twenty-two monthly instalments aforesaid.

We might dispose of the matter off hand by simply referring to an opinion of the 3upreme Court (77 Southern Rep p. 110, 148 La.) in whioh, in a case between the same parties and involving the same contract, the court solemnly adjudged it to be a lease and not / a sale. But it seems that owing to some confusion in their docket, \ ¿t ) the opinion was handed down in a case which M did not belong, and I had to be withdrawn. We will therefore examine the document independently of that opinion. ^2 >f¿^3 (¿o 2

And it is perfootly apparent that the instrument in controversy is purely and simply a lease with an ontion to purchase whioh has never been, and cannot now be exercised, bdoause of defendants having fallen in arrears with their rent*

It is not a sale, and for this very simple reason, to wit, that defendants have never bound themselves for the price.

tDhis is the one paramount oiroumstance that distinguishes this case from the line of oases relied upon by dtfiendant, holding that a lease, in which at the end of the term the lessee ix to beoome the owner of the thing leased in consideration of the rent piid, is in fact a sale and translative of the property from its very inception.

Shis distinguishing feature, is so glaring as almost to require no pointing out, but this has been done by *»r. Justice Provoaty in his able opinion in Barber Asphalt Co vs. St Louis Cypress Co, 121 La 162, particularly at page 168.

Por there is a vast difference between a contract in whioh one binds himself to pay a certain sum of money for whioh he is to receive a certain thing, and a oontraot in which a person binds gimself to pay in instalments a certain sum for the use of a thing, with the privilege of becoming the owner thereof upon paying a further sum, for whioh however he has not bound himself absolutely.

In the first case there is dearly a sale, the thing and the price having been agreed upon and both parties having bound themselves !ln such a case, as pointed out by Justice Provoaty, the law regulates its effect as a matter of public policy, and does not permit the the parties to change that effect.

In the last there i3 no sale, because the parties have very [distinctly agreed that the amount for which one of the parties is [bound shall not be the price at which the thing is sold, but.on the [contrary that the price, if a sale be effected, shall be another and [different amount, for which that party has distinctly not bound kimself.

New Orleans, La, April 22nd, 1918.

It is said that there are certain clauses in the instrument which are inconsistent with the#iea of a lease, because unnecessary; as the rent for Instance, that ##### shall he forfeited if the lessees forfeit or fail to exercise their right of option. This however is of no oonsequenoe; it was at course unnecessary, hut does no harm, since it only emphasises the fact that the monthly payments were to he for the use of the property, and precludes the very contention now set up, to wit, that suoh payments were instalments of the purchase price and gave defendants some title or equity in the property.

We are of opinion that the instrument on controversy is a lease and not a sale, and plaintiffs are therefore entitled to their lessor's lien.

The judgment appealed from is therefore afflfmed.

Judgment Affirmed.


text:
    THEODORE DEDINGER VS VINEGAR BEND LUMBER CO.,
    NO. 7280
    CHARLES F. CLAIBORNE, JUDGE.
    April 1st. 1918
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff claims $242.25 balance of price of a shipment of lumber.

The defendant, the Vinegar Bend Lumber Company, through its agent in New Orleans, placed an order with the plaintiff, proprietor of the Madisonville Saw and Planing Mill, for a certain quantity of lumber of a specified quality, length, and prioe to be delivered at Mobile.^JTF.A.S., free at shipslde. The plaintiff accepted the order and measured and loaded the lumber at his mill at Madisonville upon three separate barges.

On Fehruary 26th. 1916.the barges left Madisonville for Mobile. On the same day the plaintiff mailed to the defendant detailed accounts of the quantity, quality and measurements of the lumber shipped, and at the same time drew on the defendants for $5237.40, whloh represented the Value of the shipment according to plaintiff's count, and notified defendants thereof.

The defendants did not acknowledge receipt of the specifications or invoice nor of the shipment nor of aatfciwg notice of the draft drawn upon them. The shipment nevertheless was received by them at Mobile.

They selected and retained and measured that part of the lumber which pleased them, and rejeoted and returned the balance to the plaintiff. Thereupon they remitted to plaintiff their checks for $4439.32 in full payment of the quantity of lumber which according to their measurement had been retained by them.

The plaintiff contends that the quantity of lumber returned by the defendants was of the value of only $ 555.83 which added to the ckeoks of | 4439.32 left a balance due to them of $ 242.25 Making a total of $ 5237.40

If plaintiff's measurement was correct, it is evident therefore that the defendants have retained more lumber than they acknowledged, or that they have failed to return all the lumber they rejected, and this is the sole issue in the case.

Defendants denied any indebtedness to plaintiff.

There was judgment for the plaintiff and defendants have appealed.

The plaintiff testifies that according to the custom of the trade the .mill tally is understood to be the tally upon v/hioh lumber is sold; that when the rejected lumber was returned to him,-he made a tally of it, and sent a credit memorandum to the defendant company for <¡555.83; The company sent him a different tally showing the quantity they'claimed to have retained; they did not send him a tally of the lumber they had returned .

The, following witnesses testified to having tallied for account of the plaintiff at Madisonvllle the outbound lumber shipped from there to Mobile and the lumber returned. •

Frank B. Goldate tallied, in company with Koep, Eckell, and Cullum; they used the roller-stage system w.cich had the lengths marked upon it; the lumber was held even at one end of the stage and was measured by the lengths marked upon it; all the- lumber tallied by him was then loaded upon the three barges; he kept a. record of .his tallies in. Book No. 28 at pages 126-130, and in Book 32 at pages 11 to 15; the total of his tallies amounted to 138,771 feet; Cullum left Madisonvllle; does not know where he is; a record of Cullum's tallies of the outbound shipment to Mobile is contained In Book 33 at pages 23 to 26 and Book 34 at -pages 15 to 16; the total of his tallies amounts to 26,780 feet; the records of the Madisonvllle Mill show that the total number of feet of lumber returned by the defendants tallies 37,067 feet; the tallies made by Cullum of the shipment returned is contained in Book 32-at pages 23 to 27 and amounts to 15,659 feet; he also used the roller-stage system; neither he nor Cullum had any lumber inspector's license; no representative of defendant's assisted in making the tally.

To the same effect is the testimony of Eckel; his tally is in Book 34 at pages 11 to 20 and amounts to 92,009 feet--; he hns been in the employ of plaintiff fcr 36 years and has been grading lumber for 25 years or more.

Koepp also tallied part of the shipment; his record is in*Book 33 at pages 17 to 21 and amounts to 89.832 feet; has been employed as tallyman for the last two years; is not in the employ of plaintiff; tallied this lumber as extra man.

According to these four witnesses the total amount shipped was 347,392 feet. Galatas also tallied; his record is in Book No. 32 on pages 23 to 27 and in Book No 33 on pages 27 to 30 and amounts to 21,408 feet, he tallied with Cullum, and Cullumfs tally amounts to 15,659 feet, making kngwklujx together 37,067 feet; they tallied all the lumber that was returned.

Joseph F. Ballam is a steamboat captain for the last 20 years; is in theemploy of Poitevent & Favre; never was in the employ of plaintiff; he conducted the two or three barges of lumber from Madisonville to Mobile and back; no lumber was taken off any of the barges from Madisonville to Mobile; some of the lumber was brought back from Mobile to Madisonville; whatever lumber was left on the barges or was put back on the barges was brought back ak to Madisonville;- there was none taken off from Mobile to Madisonville; the captains of the several barges whose duty is to look after the barges and their cargoes were on the barges on both trips.

For the defense E. W. Meeker, aged 39, is assistant cashier of the Galveston-San Antonio Railway and resides at El Paso, Texas; was lumber inspector for the defendant company at Mobile; had twenty years experience in measuring lumber; he measured the lumber received by the defendants in this case, and made a record of his tallies, and annexed them to his answers; they mount to 294,614 superficial feet; he made no tally of the Turner not retained and returned, and therefore does not know how any feet were rejected; a great number of pieces of lumber acked 2 to 5 inches to make a foot; each and every piece of umber that he accepted from these barges was measured with a od made from a two foot rule; all the lumber he rejected was eft on the barges; he was not the only one who tallied the lumer; cannot state the exact amount of feet tallied by him; for short time he had the Assistance of s. Sullivan; he tallied about 60% of the shipment; it is a fact that lumber for export trade is out in both odd and even numbers; none of the lumber rejected was taken off of the barges; he made no tally of the rejected lumber.

Silva, agent of defendant, is engaged in the lumber business since 1878; saya the rod is the most accurate way to measure lumber; the roller-stage method is not as accurate and is used when in a hurry; it is done a great deal on the Hew Basin; in the absence of agreement, lumber is measured at the point of delivery.

R. H. Hackney testified that the best method of measurement was "to get a rod and get the actual length of the piece, get the dimensions thickness and width"; although the rollerxfcx&a stage is commonly used; in the absence of agreement between the parties, the measurement is invariably made at the place of shipment or of the seller, but the buyer has the privilege of remeasuring it when he receives it; when there are rejections it is sufficient to tally the portion retained, but the part rejected is frequently tallied; variations in tally frequently occur; the Poltervent Lumber Company, for which witness works, measures lumber by rollers and at the mill; the roller-stage is used very frequently; in case of difference he would give the rod measure preference every time.

He have no hesitation in saying that the preponderance of the testimony is with the plaintiff. Four witnesses took the tally of every piece of lumber that left Madisonville to go to Mobile, and upon the sum of their tally this suit is predicated.

There is nothing to awaken a suspicion of the correctness of their count dr of their credibility; it was not with them a question of memory but of contemporaneous record. They h&d no interest in padding or falsifying those records; the presumption is that what they wrote down was the truth.

Iff we believe the defense, these men would have exagerated the number of feet of lumber put upon these barges, either through error or mallce/to the extent of 15,711 feet. There is nothing in the testimony to jxA justify such a reflection upon them- On the other hand, there is-no. positive testimony on the part of the defendants as to the quantity of lumber retained by them. Two inspectors measured the lumber for the defendants. Meeker and Sullivan. Meeker alone testified. He measured only a part of the lumber retained by the defendants. He does not know how much Sullivan measured. Sullivan may have measured and retained the difference which plaintiff says defendants received. Why was he not examined or accounted for?

An attempt was made to discredit the roller-stage system in use at plaintiff's mill. But the evidence is that it is the system prevailing in other large and creditable mill3 and upon the New Basin. The accuracy of the measurement however is supported in this case. Plaintiff's detailed hill annexed to his petition charges the defendants with 3118 pieces of 1x4 equal to 15,085 feet all of which defendants retained. Meeker's figues tally with this count to the foot. Silva's testimony upon this point is as follows:

ft. And you have never seen a roller-stage and a rod measurement come out exactly?
A. Hot to my knowledge.
Q. What would you say if you did see such a record -made?
A. I would say that the man who handled the lumber at the head of the sta^e was extra careful, and the man that tallied the lumber was more than accurate — more than accurate.

We have no reason to doubt that plaintiff's tallymen were all equally accurate.

Judgment affirmed.


author: St. Paul, Judge

text:
    NO 7281.
    JOSEPH GRECO VS J. CATALANO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   o m n o ii.

St. Paul, Judge

This appeal involves only a ruling on evidence.

The suit is upon promissory notes still held by the original payee. The only defense is partial failure tti consideration, to wit, that beoause of oertain false and fraudulent representations touching the consideration for whioh the notes were given, defendant received less than h&d been agreed upon: and he claims credit upon the notes for the difference.

That is to say, the notes having been given in part payment for a Bar Room, and "the buyer assuming all obligations due, "defendant olalms, and attemptsd to prive by parol testimony, 1. That the outstanding obligations thus assumed were falsely and fraudulently repersented as amounting to only $10ú, whereas in fact they amounted to $150:

? falsely 1 2. That it was^and fraudulently represented that during the few days when negotiations were in progress, no goods had been taken out of stock except in the usual course of business, whereas in fact goods to the value of $30 had been so removed.

This evidence was excluded on the ground that it tended to vary a written instrument, the sale being in writing and containing the aforesaid clause*, to wit, "The buyer assumes all obligations as-to 0 ^smount of stock on hand..

We think the evidence was erroneously excluded. Parol evidence is of course not admissible to vary the tenas of a written instrument: but we do not see in the evidence offered any attempt to vary the terms of the contract.

On the contrary, defendant admits the full foroe of those terms and hence his obligation to pay the outstanding debts; but it is precisely because of this that he complains,to wit,that he was induced ##;{£##$### to assume, did did assume, those obligations upon the false representations made to him by plaintiff; whereby,, to the extent of those false representations, there was failure of consideration, slnoe he did not reoeive all that he was to rea&ive»

New Orleans, La. May 1918.

And parol evidence is always admissible for the purpose of showing fraud or failure of oonsideration.

The ride is thus stated by Mr. Ho« Kelvey in his work: on evidence; "When a written instrument is alleged to be invalid for fraud in its procurement, or any other reason, oral testimony is admissible to show the circumstances of its execution." Section 295 (p.455)

And in the note to this section he says, "Failure of oonsideration may always be shown, sinoe it touohes the validity of the instrument,’1

Of course the rule is the same as to partial failure of consideration, since this invalidates the instrument pro tanto.

We are then olearly of opinion,that defendant is entitled to show by parol testimony, if he can, the alleged false representations of which he ooiqplains.

The judgment appealed from is therefore reversed, and the oause is now remanded to the oouttt ^faua for further proceedings in aocordanc with the views above expressed; the costs of this appeal to be paid by the appellee, and the other costs to await final judgment.


author: St.Paul, Judge.

text:
    NO. 7331
    CLAUDE A. YOUNGER VS WALTER F. WEIDIG.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opmcn.

St.Paul, Judge.

Plaintiff owned an automobile which he wished to sell. One Buisson obtained possession of it, sold it, oolleoted the prioe, pocketed it, and disappeared.

The petition alleges that Buisson was entrusted with the 'machine for the sole purpose of taking it from plaintiff’s office to his home, and that Buisson profited by his possession to sell the machine without plaintiffs knowledge or consent.

Plaintiff testified that at the time the automobile was sold Buisson was not in his employ, haring previously .been discharged; and again, that Buisson obtained the car through one Klrkham, who was plaintiff’s agent.

Klrkham testified that he (Kirkham) was plaintiff’s agent to nS sell the oar; that he delivered the oar to Buisson to be showejb to a prospective purchaser, whom he (Kirkham) did not know, but who was to be brought to him (Kirkham).

Plaintiff’s brother testified that on the day of the sale, he (the brother) turned the oar over to Buisson under inatrtotlons received from plaintiff himself, and for the.purpose of taking the oar to plaintiff, then out of the City; and again, to take it to Klrkham who was to sell it.

On the other hand, Bistes, who admittedly is friendly to plaintiff, testified that in his (Bistes) barroom, plaintiff offered the automobiie for sale, and upon a suggestion that defendant might buy it, told Buisson to see defendant with a view to selling it to him. She next day Buisson had the machine in front of the barroom, when defendant came in and was informed by BiBtes of what had ooourred. Defendant went out and entered into negotiations with Buisson but oould not then agree on a prioe. (It was some days later that the sale was made as stated before).

Hallan, a olty detective, testified that plaintiff case to police headquarters the morning after the sale and complained that his machine had been stolen; that he had entrusted it to Bulsson for sale, but the.latter had failed to account for the prloe.

Shis witness is corroborated by Oassard, another olty detective,

From the foregoing it is dear that the allegata and the probata do not aooord in the slightest degree. But we take the case as we find it, the testimony having been admitted without objection, on that soore,

this And from testimony it is certain that Buisson had not stolen the machine, but was lawfully in possession of it for the express purpose of showing it and seeking a purchaser..

It may be however that Buisson was not authorized to dose the sale or receive the prloe. But that is a matter-entirely between Buisson and plaintiff.

yor the latter, so’far as outsiders oould Judge, was olothed with apparent authority for that purpose.

He was undeniably given authority to offer the machine for sale» and having been put in possession thereof he was olothed with the power in fact, even if he had not the right in law, to deliver it toa- purchaser.

thus three persons who heard plaintiff express himself as to the- extent of Buisson's authority (Bistes, i Mellen and Cassard) all concurred in understanding that Buisson had full authority to sell. Hor did the damaging force of these circumstances escape plaintiff himself, who in his petition, as we have said, charges Buisson with being in possession for a totally different purpose and denies in tata any authority in Buisson to seek for a purchaser; and who at the very outset of his testimony sayd that Bulsson was no longer in his employ.

She rule of law prevailing in suoh oases has been well stated, though misapplied fas we think) by the district Judge, to wit; Where one of two innocent persons must suffer a loss, the loss must fall upon that ona of them whose oourse of oonduot contributed most to bring about the loss.

New Orleans June 17th, 1918

And the true application of that rule in a oase like this that where one person, having movable property for sale, puts that property in the control of another with authority to seek a purchaser, he# cannot repudiate a sale made by the latter, even though as between themselves the agmnt was not authorized to close the sale, because he had thus put it in the power of the agent to exceed his authority to the prejudice of lnnooent third parties»

Thus is Davidson Hill vs Bodley, 27 An 149, it was held that where on agent was given possession of movable property to sell, but, instead of selling, pledged it, the prinoipal oould not repudiate the pledge because his own act had 'made it possible for his agent to effeot the same.

Por in all questions of agehoy not established by writing, there is a wide dofffrenoe between one who aots wholly without Mh?###### authority, and one who having some authority yet exceeds the extent thereof. In the former oase there is no foundation whatever on which to base an esttppel against the supposed prinoipal; in the latter, the authority orally given must, in the very nature of things appear generalAtherefore broad, whilst the limitations thereof can usually be known only to the parties thereto#.

We are therefore of opinion that plaintiff, by putting hi's automobile in the possession of Buisson with authority to seek a purchaser, fut it in the power of the latter to make the sale, and oannot now repudiat it.

The question whether defendant purchased for his own aeeount or for aooount of the intervenor has no bearing on the issue. It does not concern plaintiff in the least, and defendant admits that he purchased for the account of the intervenor.

She judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand be rejeoted, and that the intervénors Beall & Weidig be recognized as owners of the automobile herein seized; plaintiff to pay the costs of both courts.