text:
    No. 7639.
    Poitevent & Favre Lumber Company. -vs-W. H. Ward, doing business as the Algiers Saw & Plaining Mill.
    By Dlnkelpífcl. J.
   This oontrovery arise substantially out of the following faotsj

Plaintiff, a corporation doing business and dom--ioiled in Mandeville, in this State, represents, that defendant, doing business in the name of the Algiers Saw and Plaining Mill, in this City, is justly and truly indebted to plaintiff in the full sum of $038.31., representing the value of a oar load of “heart face lumber", amounting approximately to 16.157 ft. of irctj l.¿ X 6". This lumber was shipped on or about October, 37th. 1015, being in fulfillment of an order which plaintiff received throught one R. H. Hackney, a representative saleman of the Pointevent & Favre Lumber Company, but without authority to accept contracts of this character which would be binding upon plaintiff ’«itnout first submit-ting same to them for ftsx ratification or rejec-tion.

When the order in question was sent to plaintiff for ratification, the sale called for "all heart lumber", but was Interpreted by plaintiif to mean "heart faoe lumber", which quantity of lumber was forthwith shipped to defendant and was invoiced under that description; but defen-dant appears to have paid no attention to the invoice, unloaded the oar and stored the lumber in their yard without making any oomplaint, at the time, that the lumber ,as not satisfactory or that it was not up to specification.

Defendant ansviered, teat tne order given by them to Hackney was in writ ng and addressed to the Pointevent & Favre Lumber Company and that same called for one oar, 15.000 ft. x 6"", all heart long leaf yellow pine, 80 $ mK knots, @ $33. per M. ft.' f. o-, b. oars N. one oar, 5.000. ft. 1 x 13", prime long leaf yellow pine @ $36. per M. ft. f. o. 5. oars N.O. one oar, 16.000. ft. 1 x 4 & 1 x 6, cypress x strips, to average not less than 14 ft. each length, free of knots, splits and waine, prioe $13. per M. ft. f. o. b., oars N. 0.; that this order was accepted by said R. H. Haokney for the Pointevent & Favre Lumber Company, as their agent, but only one oar of lumber containing 16.157 ft. a of pine of which approximately 40$ was up to grade in aooordanoe with the contract and the balanoe was below grade ordered, Bame being (¡heart face" and being 1 Coni grade lumber, was received by them..

Defendant reconvened and claimed damages in reconvention in the sum of $ 643.00.- $ 500.00. in globo for damages for loss of business add $143.00. for difference in the prioe of lumber shipped.

It is uterly impossible to reconsile the testimony in this case. Hackney, in our estimation of the evidence, had no authority without oonsent of his principal to do anything but solicit orders, .forward same to them for confirmation or rejection, while in this particular case the mill accepted the order of the one car which they shipped; they notified defendant throught. Hackney , both by oor--repondence and phone, of their inability to accept the orders for the other two cars.

The evidence further convinces us, that when defendants notified plaintiffs that the lumber shipped was unsatisfactory to them, plaintiffs were prepared to take same baolc and reimburse defendant for the freight which amounted to $ 43.40., whioh had been paid out on this oas by the defendant, and according to two letters, dated November, 36th. 1915, one of whioh contained Instructions to Haolcney as to what was to bs done with the oar of lumber after same had been turned over to hirak by defendant. The other addressed to the Algiers Saw and Plaining Kill, authoris--ing them to turn over said oar to Haolcney. Dsf--endat had every opertunity to r'eturn the oar and escape liability therefor. Defendant, however, stating setting up the fact thatetheir order as given to Hackney , had not been completed, freight paid by them had not been adjusted, refused to give up the lumber, all of whioh was then and is still in their possession and on account of whioh nothing haa ever been paid, henoe this suit.

He donot believe the defendant had a valid contract for the lumber which is olaimed by them in their reconventional demand. There in the record on the part of defendant whioh sus-tained their allegation that Haoknay was authorized to enter into a contract of sals of this oharaoter, had the right to make suoh a contraot with them in this case same never having been oonfirmed by plaintiff.

On the other hand, Haokney swears positively that he never made suoh a oontract; he never had the authority to do eo¿ his authority being solely limited to sollolting orders for plaintiff and thereafter transmitting them either for aooept-anoe or rejection, and plaintiffs having deolined to aooept the orders for the two oars, and only one shipped by them, having notified that faot to defendant, as herein above stated, their re-oonventional demand must fail, even had same been set Slut with that detail and certainty which under the ruling of our Supreme Court in the case of Townsend -v- Fontenot, Sheriff, et. al, 47 Ann. 890 - 894, it should have done. Nor,do we think that plaintiff would have been bound to have submlt--ted the question in dispute to arbitration, even though it had been proven on the trial of this oase that suoh was the oustom in the lumber business.

This question was deoided in the oase of Saint -v- Martell, 137 La. p. 74, the Syllabus reading; " An agreement to refer, for final determination-, differences to arise in the future to arbitrators or amicable compounders, is not susoeptable to specific enforcement, but is dependant for its execution on the will of the parties; since the Court will not, in suoh case, oompel the persons to appoint arbitrators or amicable compounderg, or fcíhérwise enforq* agreements whereby persons undertake,^to the doors of the Courts upon themselves."

written The District Judge, in his/reasonsyfor judgment says; " The defendant having received the shipment and having retained same is liable for the value thereof, 40 $ thereof or 6463 feet, ( all heart) and worth $ 148.63, allowing the prloe as set down in the order. The balance accord ing to the testimony ui of defendants was worth #5.00. less or #18.00, per thousand or # 174.51, making the total value of the oar of lumber $ 333.13 deduoting from this freight charges paid by defendants amounting to #43.40, making the value of the oar of lumber # 376.13.

The authorities quoted by defendant and recon-venor are not applicable in this case, because having decided that Hackney was not the authorized agent to sell, same in oul"opinion do not apply in this oase. But in the calculation of the Distriot Judge he has made a slight error as will be shown by deducting #43.40. whioh was freight paid, from the amount of the lnvoioes found to be due, #333.13, iguuubclaxfeaxlus total value of the car of lumber; leaves a balance of # 379.73 for whioh the defendants herein are liable.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be amended so as to allow plaintiff # 379.73, with legal interest from judicial deacraj^ until paid; that same in all other respects be affirmed with costs to be paid by defendant in both Courts.

-Judgment amended and Affirmed-


source: Caselaw Access Project

author: John ñt. PAul;

license: Public Domain

text:
    NO. 7642.
    HENRY R. GUERIN ET UX. VS AUGUST HUBERWALD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

By his Honor

John ñt. PAul;

This is an potion for damages hy a husband and wife, against a druggist for alleged negligence in labeling a AT •prescription, in oonsequenoe Whereof the wife, having used the medicine according toAdirections indicated, instead of as .intended by her physician, suffered certain alleged physical and mental injuries, and the husband was thereby put to oertain alleged expenses. She answer is substantially a general denial.

I.

At the time of the occurences hereinafter mentioned the wife was pregnant, and five months of her period had gone by. Having on two former occasions Buffered a miscarriage, she had kept herself under the oareful Observation of her family physician, who up to that time had found no indication of any threatened mishap.

But as the result of her condition she had some pain in her limbs, and besides had contracted a slight cough. To relieve the pain in her limbs the physician prescribed a liniment containing a trace of Menthol, and equal quantities of Oil of Wintergreen and of Olive Oil, with direction to "Apply"looallylr Por the cough he prescribed Wild Cherry and Codeine, with directions to take nAfcea3poonful every three hours when coughing.'-

The"two proscriptions were filled at defendant’s drug store, and were handed to the husband in one package. It is not disputed that they wore correctly filled.

Arriving at home the hwshMifl gave the two bottles to his wife, who after having read the labels then took and swallowed a teaspoonful of the contents of that bottle which bore the label with directions to take "a teaspoonful every three hours," with the alleged results hereinafter mentioned.

IX-

It is an undisputed fact that when the two bottdls were produced in court, the cough mixture bore a label directing local application, and the liniment a label directing that a teaspoonful be taken every three hours. The attending physician, whose good repute is not cpisetionee, testifies that when he, first saw the trro bottles, upon being called in some few hours after the obnoxious dose was taken, tJoey were labeled its '••‘hen produced in court. The husband, and a friend who accompanied him, testified that the two bottles were handed hin in one package; the husband swears that he handed the two bottles to his wife ao-ft-ho re-ocirvo-T the bott.1 es as be reeoivPd them. The wife swears that she received t If. bo lulus fror. V •• and having merely examined the labels to ascertain which was which, she took a teaspoonful of the mixture contalned in that one of the bottles labeled "a teaspponful every three honra."

Defendant's manager, who saw the bottle of liniment in court, Mislabeled, admits that it came from defendant's establishment, but "won't admit that that is the label which was on the bottle when it was sent out."

She point is not insisted upon; and we ourselves, in the light of the evidence before us, the proverbial uncertainty of law suits, and the well known danger of takingdntarnally the unknown contents of lotions intended for external use only, will not assume that the labels were "switched" otherwise than by some negligence on the part of one of the defendant's employees. In the face of direct-evidence leading to a conoluaion not impossible or absurd, courts will not indulge in fanciful therries whioh, though possible are yet not even suggested by the evidence and in themeelves highly imponoíble. Sanchez vs Woodmen of World, IS Orleans Appeal. 24?; 1amourslie vs Pittsburg Plate Class Co, IS Orleans App. 374; Blook vs Ocean Ins Co, 10 Orleans App 284’DW^V(f>v. (^j^eXjntr w AwJ. Q¡t ¶ .

III.

The wife testifies that immediately upon taking the obnoxious dose she felt, a turning sensation throughout her whole body* that she gradually grew worse, and some hours afterwards called in the physioian who found premonitions of another miscarriage and accordingly ordered her to hed a$; - once. Thera she remained three weeks showing all the well known signs of an approaching miscarriage (which howerer gradually subsided) and with the dread upon her that euoh an ooourenoe was impending; that it was another three weeks before all immediate danger thereof had passed. In this she is corroborated by her husband and by the physloian.

IT.

The attending physicaln testifies that the burning sensation was oaused by the small (gqS&liglble) quantity of Menthol; that the sensation was purely local, and had no bad effect upon her, exoept psychologically, whan she realized that in her condition she had swallowed something not Intended -tku, for her stomach in its then delicate condition; but^the Oil of Wtntergraen which she had taken Was the exwitlng cause which sot in motion her own predisposition towards miscarriage. (NOTE; The exciting cause of an ooourenoe is the one whioh sets the other causes in motionj^lt is therefore the efficient or proximate cause. Inse Co vs Boon 95 U. S. 117; Lapleine vs M. La & Tex R. R. Co, 40Ann 661; Wellington vs Downer Kerosene Oil Co, 104 Mass 64; Vandenburg vs Truax, 4 Denio 464; And Scott vs Sheppard, 2 Wm Blaokstone 892, the celebrated and oft cited case of the lighted squib thrown in the market plaoe)

The physioian also testified that the text hooks warn against the use of that drug during pregnancy, and he referred to Hare’s "Practical Therapentios" Í9th Bdijion, 1902) e text hook long in use in the local Medical College; pointing especially to page 239 where it_sa4d\^t(Oil of Wintergreen, Saultheria) is about 96 per cent salicylate of methyl, xxx Owing to the large amount of salicylate of methyl contained in the oil, its physiological action is almost identical vflth that of salicylic acid, xxx The dose may he as high as 100 minims a day, but xxx very few patients can take more than 30 minims a day, without suffering from a disordered stomach." HOTA BEHE; At page 791 the dosage for oil of Wintergreen is given at from 1 to 20 minims; at page 783 oil of Saultheria, dosage 2 to 10 minims.

The physioian also pointed to (Hare) page 384, where it said "BIH2 thinks that full doses of Salicylic acid (p. 777, dosage 6 to 16 grains, and as aforesaid similar in its action to Caultheria) may produce abortion in woman who already have a tendency to abort, end VIHEBURG thinks that Menorrhagia and Mehiorrhagia are caused by it (that is to say, Tineburg looks upon it as an Emmenagogue) xxx Salicylio acid x x x is an trritant to the stomach."

The United States Dispensary (17th Edition, 1894) puts the percentage of sal.fcylla- ' snUfayTic ee-id ln in oil of Wintergreen somewhat lower than them 96 per cent. At pages 937-938, it Is said; "169 grains of the oil contain 162 grains of methyl salicylate and ars therefore equivalent to 138 grains of salloyllo aoidj" this is about 81 per cent***-¿~ •

Observing this percentage, and noting that the minim or drop is the 60th part of a fluidrachm (fluid-drachm) and therefore the liquid equivalent of one grain (approximately), we see that 20 minims of (liquid) Winterpreen oil are the equivalent of 16 grains of (crystalized) salicylic acid, and that both are full doses.

Observing also that a teaspoonful is one fourth of a tablespoonful and therefore one i eigth of a fluidounoe, we see that it contains Just one fluldraohm, or sixty minims; and hence we find that when the lady took a teaspoonful of the mixture, she took just THIRTY minims (drops) of the oil of 'Wintergreen, that is to say, at least 50 per cent more than a full dose.

VI.

We do not know who BIN2 and VIHEBURG are; but when we find that a text book uped in a Standard Medical College, and therefore daily in the hands of skilled professors, refers to them simply by their patronymics, we may fairly assume that they aa» some weight as authorities; Just as a layman, reading one of our own text books, and meeting such expressions as, "Pothier is of opinion x x x, Blaskotone holds xxx, Kent thinks x x x, etc", might justly conclude that these authors, though perhaps unknown to him, are entitled to some respect in the domain of law.

VII*

But whatever he the weight to he given to Bins and Vinehurg as medical authorities, it is certain that they are quite in accord with authors with whom we are better acquainted*

Wharton én¿ Stillers Medical Jurisprudence (3905), page 49 and 50 (Sections 82 to .96), tells us in substance that the use of drugs for the purnose of c-using abortion has been praotically without success; and the reason is obvious, as "only one or 'two have proceed abortion without causing the death of the woman". or at least the symptoms of intense poisoning; but that Irritants. Purges and iSmmenagoguos KAY produce abortion, the first two by their secondar^r effects, and the last by their direct action on the uterus• To the same effect see Beck's Medical Jurisprudence (1850) Volume 2 page 428 to 4?5, which adds that a rredisposition to miscarriage and other circumstances arc factors in the result produced*

VIII.

Against this we have only the "ipso dixit" of another physician, called as an expert, that in his opinion oil of Winteggreen could not have produced the effect hereinabove ascribed to it, end that there is no drug known to ;nedic5.ne capable of oausing abortion unaided by mechanical means.

If we are to understand by this that oil of Wlntergrean is not appropriate to the purpose of bringing on premature parturition legitimate (?) or otherwise; and that there is no drug whose aotion .in that respect is pertain in its result and altogether unattended by danger to the wora^n herself, then the witness is quite in acqord with the authorities.

If however we are to understand therefrom that there can be no connection between the lady's illness and the drug which she swallowed, then we cannot accept his unsupported opinion against that of the attending physician, supported as it is by the authorities above set forth; not only because he finally deoline3 to commit himself quite so far, but also for other reasons into which we will not enter; and again because in matters of this nature, the opinion of the attending physician is entitled to greater weight than that of others who have not seen the patient, and whoso fine-spun theories are often utterly destroyed by grim and stubborn faots. Mc Cubbin vs Hastings, 27 An 713; Walton vs Booth, 34 An 913; Fleet & Semple vs Hollenkamp, 13 Ben Monroe (Ky) 219.

IX.

As to the Quantum, we find thiit plaintiffs have establish^ special damages as claimed, towit $97;j

and for the pain and suffering (mental and physical) of the wife we think the further gum of $100 shfuld he just compensation. Kven if this amount he not aioot, it le etlll allowable for the violation of plaintiff* legal rights, even though unattended hy oiroumstanoes indicating any wantonneaa. Davis vs Ry Co, 117 La 320; Bourdette vs Seeward, 107 La 258; Green vs Dairy Co, 113 La 89; Orlesch vs Auto Co, 13 Orleans App 303. For Druggists and Apotheoaries are insurere of the compounds they make up for sale. 13 Ben Monroe 219 (Supra); Doyle vs Fuerst & Kraemer, 8 Orleans App 408 (129 La 838).

The judgment appealed from is therefore reversed, and it' is now ordered that there he Judgment in favor of the plaintiffs Mr. and Mrs- Henry R. Guerin, and against the defendant August Huherwald, for the full sum of Orie hundred and Ninety seven Dollars ($197) with legal interest from judicial demand until paid, and the costs of hoth courts.

Hew Orleans La, January 1910


author: CHARLES E. CLAIBORNE, JUDGE.

text:
    Charles E. Claiborne, Judge.
    JACOB IPSER VS MRS. EDWARD J. KESSLER, & al Appellants.
    No. 7644.
    December 8th, 1919.
   CHARLES E. CLAIBORNE, JUDGE.

Plaintiff Ipser alleged that he was the owner of a note made hy the defendant, Mrs. Kessler, to secure the payment -of which she granted a mortgage; he further alleged that the defendant had failed to pay the note, and he prayed for execu-tory process - and for recovery of the amount of the note.

The writ issued as prayed for.

Whereupon the defendant, Mrs. Kessler, obtained an injunction, without bond, against the execution of the writ. She alleged that after maturity she paid the note to the Commercial Germania Bank the holder thereof; that one Jules J. Viosca then took possession of said note for the purpose of holding it until a pretended but invalid claim he asserted against her was paid; that the claim set up was the debt of her husband and not herB, and that Viosoa then delivered the note to Ipser, the plaintiff herein.

Ipser did not take a rule to dissolve the injunction in the manner provided by Article 741 of the Code of Practice. But, instead, he filed an appearance containing an exception, an answer, and a reconventional demand. Hie exception was that the order for the injunction Bhould not have been granted without bond; the answer was practically a general denial of all the allegations contained in the petition for the injunction, an allegation that Jules J. Viosca had purchased the note from the 3ank; and concluded with a prayer in reconvention for $250 damages for attorney's fees.

The case was tried at one and the same time on the pleadings made in that appearance.

On the day of the trial of the case, the plaintiff, Mrs. Kessler was dead. Her testimony had not been taken. But the testimony of her husband was taken, as well as the testimony of Jules J. Viosca, and of the cashier of the Bank.

There was judgment in favor of Ipser dissolving the injunction, and condemning the Succession of Mrs. Kessler to pay "fifty dollars,as damages, for attorney's fees".

The defendants applied for a new trial on the grounds that the Court erred in dissolving the injunction and in awarding attorney's feeB. The new trial was refused on same day, - apparently without hearing.

From that judgment the Succession of Mrs. Kessler has appealed. Ipser has answered and prayed for damages for a frivolous appeal.

Upon the argument of the case in this Court, counsel for the Succession of Mrs. Kessler has conceded that upon the face of the record the judgment dissolving the injunction was correct. Our own examination of the testimony satisfies us that Jules J. Viosca did not pay the note of $500, but that Mrs. KeBsler paid $200 in part payment which was credited on the back of the note; and that Viosca, with a .view of acquiring and carrying the note, paid $300 to the Bank which transferred the note to him. The cashier of the Bank testified:

"If I considered the note paid at the time I would have cancelled it with my stamp; hut I considered $200 paid on account, and the balance carried by Mr. Viosca".

In the case of Interstate Bank vs Irwin, 138 La., 325, the Supreme Court said:

"When one who is not the maker of a note tenders to the holder the amount due, expressing his intention and purpose to be to "take up the note and carry it" and requests that the note be not stamped "paid", and the holder thereupon accepts the money and delivers the note uncancelled, without expressing any objection to transferring it, the transaction is a sale of the note".

The only remaining question therefore is: waB the judgment correct in condemning the Succession of Kessler to pay $50 damages as attorney's fees?

We have seen that the case^decided, and the injunction dissolved, not on motion, hut after an answer and trial on the merits. The appellant submits, as a reversible error in the judgment, that attorney's fees are not allowed for services rendered in dissolving an injunction on the merits; that they are only accorded for services connected exclusively with the dissolution of the writ itself.

In the case of Hanson Lumber Co. vs Mestayer, 130 La., 688 (691.692), the Court said:

"The fees of attorneys may be allowed as damages when paid or incurred for services rendered in obtaining the dissolution of the writ of- injunction or any other conservatory writ (authorities); but they are not allowed for services in defending upon its merits, a suit in which a writ may have been wrongfully issued, if the dissolution of such writ results merely from the defense and trial, on the merits, and no effort to obtain such dissolution otherwise is shown to have been made".

This opinion is supported by the following authorities: 5 A., 714; 10 A., 10; 11 A., 391; 12, A., 711; 13 A., 214, 440; 25 A., 469 (470); 26 A., 120; 32 A., 1179 (1182); 33 A., 6; 34 A., 342; 37 A., 182, 479; 40 A., 23 (27); 41 A., 412; 47 A., 582; 48 A., 64, 321; 52 A., 602; 111 La., 60 (70); 122 La., 850 (856); 127 La., 189; 130 La., 688 (692);-2 High on Injunctions »er~

These decisions ha#e been'fol.lbwed^b^ this Court in »^2 Ct. App. 168; 9 Ct. App. 355; and 13 Ct. App. 216.

They are all based upon the principle that parties are not entitled to recover attorney's fees from their opponents in the prosecution or defense of ordinary suits unaccompanied by malice. 17 La., 266, 19 La., 360; 36 La., 377; 40 A., 24.25; 15 Wall, (230).

The appóll^e refers us to the case of Jourdain vs Garland, 105 La., 486, in which attorney's fees were allowed the defendant in executory process on "i'Ae dissolution of the injunction on the merits. We have ex$.mj,fyí^\(nany othert cases in which a lilce allowance was made. 2 La., 100; 3 A., 588; 23 A., 685; 28 A., 60; 33 A., 443; 37 A., 482; 42 A., 666; 48 A., 537 (541); 52 A., 35; 135 La., 7.9.

But it does not appear in any of the above cases^ that the point raised here, was made -, or they were decided in construing the special provisions of Article C. P. 304 relative to injunctions against ordinary final money judgments which have no-application to executory process.

/TV. ttpam^he binding authority of these cases the judgment allowing attorney’s fees must be reversed.

It is therefore ordered that the judgment appealed from be affirmed in so far as it is in favor of the plaintiff Jacob Ipser, and against the defendant, the Succession of Mrs, Edward J. Kessler, dissolving the injunction herein; and that it be reversed and annulled in so far as it is in favor of Jacob Ipser condemning the Succession of Mrs. Edward J. Kessler to pay him fifty dollars as damages for attorney’s fees;

It is further ordered that Jacob Ipser pay the costs of appeal and the Succession of Mrs, Kessler the costs of the District Court,

Judgment amended and affirmed,

December 8th, 1919*


author: ót Paul J:

text:
    By St* Baúl J:
    Edward Morrison et al vs Grand Lodge, Knights of Pythias (Col.)

      No. 7650
   ót Paul J:

These are three suits separately brought by Edward Morrison, Job Jackson and Prank Martin, and afterwards consolidated. They are companion suits to that of '.Valter Johnson against the same defendant decided by us April lóth 1916 (13 Orleans appeals 311), and are the aftermath of the occurences therein recited.

Briefly, these were as follows: (Ine Arthur Dennison was presiding officer(Chancellor Commander) of a subordinate lodge of the Benevolent and fraternal organisation of which defendant is the local <W'^C responsible head; ar.d the four plaintiffs were members thereof in good standing. Dennison and Johnson had had some differences, growing out of a local (Jefferson Parish) political matter,which finally found its way to the lodge room and culininated^ln a sudden and unprovoked attack with a loaded pistol by Dennisor. upon Johnson.

This occurred November 2nd 1908. Thereafter Johnson charged Dennison with the offej.se, betn before the lodge itself and before t--.e criminal courts of the state; and Den: i3on was found guilty by both tribunals. The assault was witnessed by Jackson and by Martin, and Morrison learnt of it on coming into the lodge immediately after-wards .

II

Shortly after this there was a meeting of the Board of Deaoona of the church to which llorrison, Johnson and Dennison belonged, all three being also members of the board.

It appears that differences between the deacons must be compoad before they may sit together, and therefore J.onnson and Dennison did not present tnes,selves at the meeting. To make up a quorum it was therefore necessary to send for the pastor of the ohuroh. This '.iell-meaning person inquired why, with so many deacons, his presence was needed; and Morrison thereupon (very naturally) told^the "greivance" between Johnson and Dennison, and of their absence in consequence thereof.

On November 17th 190b (the same night when Johnson laid before the lodge his charge against Dennison, and immediately afterwards) Dennison preferred charges against ICorrison "accusing him of publicly and falsely divulging transactions of the lodge pertaining to the difference between hi .iself (Dennison) and Buro. Walter Johnson, and . ''a**'y destroying the Peace of the Order, (f # ?

At thenext meeting (November 27th) two cor/jriitties were appointed to investí-’ale these charges. At the next meeting (December 2nd) the committee feported on Dennison's case, and their report was immediately adopted by the lodge; it found Dennison "Guilty of ^rt. XIX, sec. l/ípage 73) of tiie Constitution for Subordinate Lodges, ” reading as follwwa:

Section l.Any member guilty of disorderly oonduct in the lodge, or disrespectjul language towards another member or officer of the lodge, shall be fined One Dollar.

The committee on Morrison*s case did not report until April 5th 1909. They found him "Guilty as charged." Thus the minutes; but there is abundant evidence to shww that a majority of the committee found the accused NOT GUlLTYji and that the result mentioned in the minutes was brought about by the simple process of erasing the Negative adverb at some time between the filing of the report and its presentation to the lodge.

The lodge however on April 26th 1909, adopted the report as read^ and Morrison was thereupon suspended (indefinitely) under the provisio n-s of Article ZV, decs. 1&2 (pages 69-70) of the Constitution for ¿Subordinate Lodges, reading as follows:

established principles, laws or requirements of the Constitution or By-laws (or) disclosing the secret-tf transactions of the lodge -or guilty of - criaii-ci' nal conduct of any kind —-wilfully persistent in disturbing the peaceful and harmonious working of the lodge-shall be dealt with in accordance with the Code of Proceedure','r-( That is to say:)
¿Section 2;-be suspended as a. dangerous disturoer of the peace and harmony*of the lodge.

quite a contrast here with the lodge's action in Dennison’s case. Morrison then appealed to the G Grand Chanoelloe, Sheldon If. Green, directing his attention at the same time to the falsification of the Sommittee's report, and crediting fhis llennison’s) buother-in-law? with that lit of ingenuity. This same 3. \1. Green was then also Supreme Chancellor of the Supreme Lodze.

To this appeal Green, instead of complying with the provision^ of Article VI, Secjl, par. 6 fpage 14) and Article VXX, Sec^V fpage 20} of the Constitution, by promptly referring same to the Committee on Appeals and Greivances for their déoision to be in turn "submitted for action" to the Grand lodge, answered on May 6th as follows:

Replying to yours of 28th ult. would say, as there seems to have been so much trouole between you and the C.C. of your lodge (Dennison), ijehall not Interfere with the action of the lodge in your oa3e, and may take up the matter if I should find time to make a visit to your Iodize in the near future.

This was the last thought, word or deed, by Green, in connection with the matter; and having heard nothing more from that source, Morrison then filed this suit, towit, on April 26th 1910, that i3 to say, just in time to prevent prescription.

He does not ask reinstatement, but prays for damages, i.e. foOO for 1038 of benefits, and ^500 for the "humiliation disgrace and odiuru oast upon him" by his illegal suspension.

Why he does not seek reinstatement, is not shown; it may be that like Johnson, he was,in fear for his life. And that Johnson’s fears were not purely idle is evidenced not only by his own experience b|tt by the further fact that «lace then one of the witnesses against Dennison (viz: hutohinson) was also shot by that enterprising ohar--aoter.

III

Ponding his trial before the District Court on the charges preferred against him by Johnson, and just three days after his preliminary hearing before Paul Felix, the looal Justice of the peaoe who committed him to the higher court (where he was afterwards convicted]^ Dennison framed an accusation before the lodge against Jackson and Martin, charging them with

"being dangerous disturbers of the peace and harmony of the lodge by publicly divulging transactions in the lodge hall of the lodge, on matters pertaining to the differences between I, Arthur Dennison, and Walter Johnson. Time and place; July 2nd, before the Honorable JJÍDGS PAD1 PEIIX.”

QtlvnjUUjL* Thus the original: in the mi jit won the word "falseily" is written over the word publicly.

In the Johnson and Morrison oases the minutes show that the District Deputy Grand Chancellor (one Arthur Griffin) appointed a majority of each investigating committee, although there ample evidence tending to show that even in those cases they were appointed or at least suggested. by Dennison himself, the prosecutor. But in the present case the very minutes themselves show that the "u. C." i.e. Dennison himself, had the effrontery to name the majority of the committee himself, that is to say on July 19th 1909, after he Jelt certain that Green "would not interfere."

On Aug. loth the oo..;. Lltt,e f;|/nd and Martin “^uilty as ünarged"; which report 7as promptly adopted by the lodge. The "D.D.J.v." (Arthur 'iriffi ) tnureupo . suspended them (indefinitely) for,rViolnti5n of OuAigatiu..," ^.nd he calmly informed Jackson that it --vas of no use to anpea] ; g3Qz¿&eo% amd tftat the suspension would be for MINnTY ¿15.1 Ynnli

IV

.Frank Martin died during the pendéncy of this suit. As he left neither ascendants nor descendants, and this claim being community property (29 An 215, 110 La. 822) his wife as sole heir thereto (act 80 of 19’iG) was substituted as plaintiff instead. Martin ftimself asked only the same relief as Morrison and Jackson, and she asks-tke-ameusit-ef-Ba^e-relief-as-Meriisefl-and-Jaeksoa^-and-s-asks the s&~:a relief as he. But in addition thereto she asks the amount of a policy of insurance upon his life, in her favor, which the deceased held in the Order at the time of nis suspension, but upon which no premiums have been paid since then.

At the trial no proof was offered by plaintiff of any appeal having been attempted by Martin. Bgt iiefcher or not Martin had appealed was^fact ther. peculiarly witnin the knowledge of Crreen, ana the burden of proof, under the eiraumstances, was therefore on the defendant. Bui; the defendant offered no proof whatever on this point.

3ut, be that as it ...ay, there //ns no need for an appeal by j.*arfcin, and for two reasons, the first whereof applies to Morrison and Jackson as '.veil as to Martin, and the second to Jackson as well as to Martin, as follows;:

tfi The arand and Supreme Lodges, to whom the appeals would succes-lie; are "migratory bodies",,and meet at an;/ place (within their jufcis diction ?) which they may select; the former annually, the latter bi-ennially. As the jurisdiction of the Supreme Lodge tetends wver the whole of ".North America, South America, Europe, Asia, Africa ai.d Australia" it follows that its sessions may be held any where on earth; and that several years may (must) elapse before an appeal could reach and be disposed of by that body,’ to say nothing of the «¿pense and inconvenience of prosecuting such an appeal. And any by-law wnich requires an^ appeal thus to be pursued, possibly to the & utmost extremities of the 'dflioba, and through jrears of delay^ is manifestly UNREASONABLE and therefore void. Brown vs Supreme Court I. O. F., 176 New York 132 (68 North Eastern 145) ; State ex rel Schrempp vs Grand Lodge A. O. U. W. , 70 Missouri Appeals 456; Schelder vs Local Union, 116 La 270.

El Because when Green wrote Morrison that he "would not interfere", he vre-judged the case3 of Jackson and Martin, which involved the same issues as Morrison'9; and any attempt &n their part to appeal woBubd been vain and useless, aik »gja therefore not required. State vs Grand Lodge, 70 Mo. App. 456 (Supra).

These oases are therefore all properly before the court.

T

On the Merits: The cases of Jackson and Martin speak for themselves. Thes* two were suspended (i. e. expelled) for giving their testimony, under compulsion of law, in a criminal proceeding against Dennison. Even Green, the Grand Chancellor, M0'.V admits (in his cross examination, page 76) that their expulsion was illegal, if this was the only reason therefor (See his testimony iff Bundle ‡5).

A3 to Morrison (who acted in good faith and without malice) it cannot be meant, by the by-la* above nuoted, that a criminal act should be included among the "seoret transactions of the lodge" which must not be'disclosed; for the presumption is that the members of the Order, in general, are law abiding oitisens. But if it is otherwise, then the by-law is void, even under the general 1* law, as against public policy; and in thi3 state the mere observan**-of such a by-law may even amount to a statutory misprision. ^ {Revised Statutes of 4870, Section 856).

We have already held in the Johnson case, Supra, following Schneider vs Local Union, 116 La. 270, that a member illegally expelled from an organization has ji two distinct causes of action; one to be reinstated, the other for damages; and (in dffect) that he need not join them in one action, out may pursue them separately; or may even pursue the one and abandon the other. This we believe^ to be rfound law, for the two matters are not so intimately connected that they cannot be severed; ane may very well have good reason for not desiring reinstatement in the association (as for instance, Johnson had) and may none the less desire vindication before the ^ public, and reparation for.the damages he has suffered to his reputition and feelings, etc.

On the other hand the measure of damages which must govern when he chooses to sue for these alone and not for re-instatement, cannot include those oenefits (say, funeral and sick benefits,^) to which he would be entitled only by preserving (i.e. claiming) his membership in the association, and complying with (or offering to comply with) his own obligation$to the association, such as paying due3, assessments^ Sy which the plaintiffs in this^do^ no*% offer to do.

So that we must confine the damages allowed them to compensation for the "humiliation, disgrace and odium cast upon them" by their illegal expulsion; and as in Johnson's ease^we fix these at #100 for each plaintiff.

Che judgment appealed from is therefore reversed, and it is now ordered that there be^fudgment in favor of the plaintiffs and againdi tne defendant, comddmming said defendant to pay to each of said plaintiffs severally the sum of (One ^UUDR/ID HOLLARS ($100) with le al interest from date of judgment, and his costs in both courts.


text:
    No. 7654
    Court of Appeal — Parish of Orleans.
    Schmidt & Zeigler, Limited. versus V. S. Dantonio & Company.
    Dinhelspiel - J,
   This controversy is based on a written agreement entered into between plaintiffs and defendants as followa;-

" 11- 16- 18- V. S. Dantonio, 250 cases of Olive Oil to be taken out as needed in one year from date. Cases- O.uarts ¶5.00. Pints §5.15, as wanted, two per cent for cash'1. Signed- V. S. Dantonio",

The petition alleges that, on the 16th. November, 1916, by written contract, they purchased from defendants herein, 350 cases of Italian Beauty Olive Oil at a price, Quarts §5.00. Pints §5.15, which contract is hereto annexed and made part of the petition, and under the terms of said contract delivery was to be made to petitioners within one year from the date of said contract as required and requested by petitioners.

They further allege that, defendants from time to time delivered under said contract, unto petitioners, 130 cases of said oil, but refuses to deliver to petitioners the remaining 130 cases due under said contract*.

That petitioners have made repeated demands on defendants to make delivery of the remaining 130 cases o¿ oil, and on October, 39th. 1917 placed defendants in default, and that the balance of the oil 130 cases has never been delivered to petitioners.

Petitioners finally claim, that the advance between the purchase price and the market prioe at which said oil had been sold to other merchants in this City at the time was §3.75, per case in excess of the agreed price, and therefore they are entitled to that difference on 130 cases of oil amounting to the sum of §450. for which they pray for judgment in their favor.

There was an exception filed which pleaded, that if the petition herein is predicated upon the contract quoted, that same shows no cause of action.

This exc eption being overruled, defendants answered, denying that they intended or purported, that the memoranda filed hy plaintiffs and signed by one of the defendants was in the nature of an absolute contract-t for the purpose of sale of the stated quantity of olive oil at the fixed price, and aver that said memoranda upon which plaintiffs have based their claim was not a binding contract, because they would be held bound to sell without any obligation on the part of plaintiffs to buy.

They further allege, that they offered a quantity of olive oil in June 1817, but plaintiffs refused to accept the terms of it, .and further aver, that the memoranda as such was not a contract, and therefore they can not be liable thereon, and pray that the suit be dismissed.

It is evident to our minds, that the writing was an absolute contract between the parties. It contains all the elements of a sale, the quantity is certain, the price fixed and the term of delivery Haató, and both parties were bound thereby. C. C. Art. 1S30,"Damages for violation of contract. The obligations of contract extending to whatsoever is inoident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages which the other party has sustained by his default".

Art. 1334. Civil Code, "Damages.; Measure. I.'hen the object of the contract is anything but the payment of money, the damages due to the creditor for its breaoh are the amount of the loss he has sustained, and the profit of which he has been deprived."

A distinction between the case quoted by defendants in 36 Ann. page 35, Campbell vs. Lambert, and the one presently considered is very evident.

Ir, the case referred to, amongst other things, the Court ¿oes on to say» at page 36: "From January to June, the price was such, that defendants could have supplied coal under their agreement without loss. During this period plaintiff oraered of them less than 1500 bhls. of the ou.uuü. uora, , rouctner with 20.000. bbls., more to oe o.elivered;" and the Court goes on to say that, “from • June 1st, coal be¿an to advance and on ths 1st of September, 187S,-a disastrous storm occasioned by the sinking of a large coal fleet lying at this port, this caused a large advance in price and a consequent increase in the size of plaintiff's orders on defendant, hence it vías utterly impossible under the circumstances to deliver the amount of coal required for reasons etated".

The Court in that case referred to a prior case in the 35 Ann. Campbell vs. Short, page 447, where the Court said: - Syllabus:- "In a contract for delivery of coal by one of the contracting parties to the other within a given time and the contract is silent as to the quantity, parole evidence is admissible to show the real intentions of parties in this respect and explain its meaning." And at pabe 44S: - "The contract is silent as to precise quantity of coal defendants would or could order within the tice prescribed", and therefore helo, the contract not binding.

TTe have carefully read all the evidence, and it would be idle to go into details as it would accomplish no results.

In this case, defendants were dealers ir. olive oils, had the goods on hand, and from time to time as requested by plaintiffs rraae deliveries. The contract was fixed and determined, there was nothing uncertain or evasive. Under said contract defendants delivered 13C oases of oil as requested, and only on account and because the price of oti advanced subsequently they failed to comply with their oontract.

It has been shown that defendant» sold to the firm of J. & M. Sohwarbaoher for $7.90, per cage, which waa resold up to $9.50, and $11.00, per case.

Plaintiffs have proved that the fair value of the difference is $3.75, per oase for ISO oases, for which, in our opinion they are entitled to judgment. C. C, Art, 1938. Then follows, Southern Saw Mill Co. Limited, vs. Ducote, 121 La. 1052, alas, 110 U. S. 339.

The Judge of the Court aquo sb held and we find his jud -cement to be correct.

Judgment affirmed.


author: CKAPL3S F. CLAI30RN3, JUDG3 St. Paul

text:
    ANTONIO GRECO VS MAMIE CHRISTINE, Appellant.
    No. 7656.
    December 22d, 1919.
   CKAPL3S F. CLAI30RN3, JUDG3

Plaintiff alleged that he had. leased to the defendant, a resident of the City of New Orleans,the property No. 316 frank-lin Street in the City of New Orleans; and that there was due to him for rent $821 with interest -nd attorney's fees; that he feared that the defendant would remove the contents of the leased premises; he therefore craved for a provisional seizure --nd for judgment for $321 with interest and "ttorney's fees. An order for a provisional seizure issued -s prayed for, and the sheriff seized the furniture contained in the leased p’-e; ises. The defendant released the seizure, furnishing a bond for the suq of Three Hundred Dollars with Jillie V. Piazza as surety.^Jjl»nvas cited personally, and filed an answer on November 8th, 1917. On January 10th, 1919, the plaintiff represented that after joining issue the defendant died in New Orleans in July 1918,' that her succession had never beer, opened/ that she left no heirs present or represented, and that it was necessary to appoint an attorney st law contradictorily -:ith whom the proceedings herein might be carried on. Without any proof of the allegations the Court appointed 1,'eysr S. Dreyfcusnto represent the Succession and legal representatives of the deceased^ 1'ar.ie Christine, Jo'’endrrt".

The case was regularly posted rd fired for trial rnd judgment rendered for plaintiff on Torch 11th, 1519. On the sr.:-gestión of the attorney for defendant that his client,! d.iie, Christir.e^had died in the City of Hew Or locus since July 18th, 1918, the Court ¿-ranted a new trial, - and fined the case for trial for April 3rd, 1915. On what day the counsel for plaintiff and the attorney appointed by the Court to represent the Succession were present, and the caso was tried end submitted,. On April 9th, 19’19 ~ulj. cut was rendered" in favor of the ■ Jr iy>t i "f Antonio Greco, and rgainut the defer,lent, 1 ride Kristine, in the full 3um of Sight Hundred, rnd Twenty-one Dollars" with interest and attorney's fees.

On Anril 17th. the plaintiff took the follo-ln;; ¡ule against the surety:

“On motion of Antonio Greco, plaintiff herein, and on surest in... to the Court x x x that during: th.e tendency of this suit the nronerty seized was delivered to defendant upon h-r furnishing : forthcoming bond -iti one Víillie ’r. Piazza, feme sole, as surety; that said ",'ill:e ¶. ’’iazze should he ordered to return the nronerty seised in this case to the custody of the “tariff, and in default of h.f'r so do in 7 that úvd ¡.Tint, shoul". be rendered in favor of nlaintiff and a.Ta.ir.'if sale fillie 7. ’’iazza for the sa:.e amount for which nlaintiff recovered ;ud.g-r.ent; It is ordered by ;,he Court th t 7il ? ie V. Piazza, fen..e sole, a resident of this City, do within twenty-four Hours of the service of this rule, deliver to the Civil Sheriff the nronerty provisionally seized herein and released under the forthco. ihg bond, ar.d in default of her so doing, that said Víillie V. Piazza, show cause on Friday, April ?.útl„ 191$ at 11 A. i... why ;:ud.r.eñt should not be rendered in favor of ole intiff and a -'inst said 'villie 7. Piazza in the saw.® .amount for which nlaintiff recovered ■'u'vorrt herein a. -rinst tie defendant, to-’-'it: the suk of ’’,i jht Hundred and Twenty-one Pollers, ($C°.1.CC) with le :al interest the-eon from duly 15th, 1917 an.1, ten per cent at orney's fees on said principal -nd interest, all costs of suit and o“ these nr •oeedings".

Víillie ’’r. Pir.zzfi answered the rule in writ in": and aliened:

lo That the proceeding by rule was illegal; this was not pressed on the ar ¿uront of the case.

7o That there wa.c n<- legal iucVpent a r inst d I.o defend-nut .i.ich -./as a,r. essential ecuioite before proceedings could be b ;.®n : . rant the surety, fin. the reason th-t the defendant, iawio C, ristir.e hussel, died in tV is City on duly l';th, 1910, an1 l.at the Jad awnt he-sir. triton c \ in t 1 o; su-t-O' n®nt]v v'ar; ii'nwl, (? ' ' null and void.

The District Court, on the authority of Bussey vs. Nelson, 30 A., 25, overruled defendant's objections and on May 1st,1919 rendered judgment against the surety for the amount prayed for, $821, with interest and attorney's fees.

Prom this juégment the surety, Willie V. Piazza, on May 8th, 1919, took the present appeal.

On June 4th, 1919, with the consent of f/Meyer S.Dreyfous, Curator ad hoc", the-judgment rendered on May 1st (April 9) 1919 was corrected by interlining therein the words "Succession of" before the name of the defendant, so as to make the judgment read against the "Succession of Mamie Christine" instead of against "Mamie Christine".

The defendant complains of two errors in the judgment, viz;

lo That the judgment was rendered against Mamie Christine after her death without making her heirs parties and without opening her succession and making the administrator a party and that such a judgment is a nullity; and

2o That a judgment for $821.00 was rendered against the surety, “Willie Piazza, who had signed a bond for only $300.00.

The Code of Practice contains the following provisions:

Art. 21: "Actions do not abate by the death of one of the parties after answer filed".
Art. 120. "If one against whom there was a cause of action die, leaving one heir only, the suit shall be carried on against such heir as it -'ould have been against the deceased. If the suit had already been brought against the deceased, and he had not answered, it shall not be interrupted, but shall be continued against tl^e heir by a mere citation or notice, served on him to that effect, within the delay for original citations, according as the distance may be from his domicile to the court where the action has oeen brought. If on the contrary, the deceased have two or more heirs, the plaintiff shall proceed personally against each of them for the share of which he inherits, if that share be sufficiently known and ascertained by an inventory or partition; otherwise they can only oe sued, each for a virile portion, that is to say, for an equal part of the debt, dividing it in as many parts as there are heirs. If the 3uit had been already commenced against the deceased, it shall be continued against his several heirs by citing each of them separately as if there was only one, but judgment can only be given personally against each for his hereditary share, or virile portion, as above provided".
Article 361: "If after issue joined either the plain-, tiff or defendant die, it is not necessary to recommence the action; it continues between the surviving party and the heirs of the one deceased, pursuant to the provisions enacted ip the first part of this Code".
C. C., 1113 (1105) provides: "'When any one dies leaving a vacant succession or heirs absent from and not represented in the State, all actions which could have been brought against the deceased, must be commenced or cumulated, and prosecuted before the Judge of the place where the Succession is opened, and brought against the curator appointed by the Judge, as is hereinafter prescribed" .

The facts of the case of Bussy & Co. vs. Nelson, 30 A., 25 differ materially from the facts of the instant case. In the Bussy case the plaintiffs sued Kelson, a resident of Indiana, by attachment lathe Fourth District Court and seized a lot of staves, Kelson answe/ed the suit. He afterwards died in Indiana where his Succession was opened. The plaintiffs then filed a petition in the Second District Court, or tRrnvftat Court, in which they alleged "that they knew of no property or succession of Kelson in this State, and prayed the Court to appoint a suitable person to represent S. C. Kelson, deceased and his heirs, if any he has, and to appear and defend the suit. Whereupon the Second Court made the appointment in these words: Let J. V. Rosier, Bsq. be appointed to represent Samuel C. Kelson deceased and his heira, if any he has, and to defend them in this suit", Rozier excepted that the Second District Court had no authority to make the appointment nor had the Fourth District Court any further jurisdiction to proceed agasint the deceased. The Supreme Court thus states the point at issue: "The question for solution ia, had the Second Court the power to appoint a pinon to repreeent the deceased or his heirs in the suit pending in the Tourtti Court, or should the latter Court have made the appointment"? As to the exception to the jurisdiction of the fourth District Court after the death of Nelson the Supreme Court merely Bald that they had decided in Augustin vs. Avila, 29 A., 837, that a suit pending in one of the Courts of the City of New Orleans did "not abate by the death of one of the parties, nor did the death of a defendant in such suit compel its transfer to the Second (District or Probate) Court, but that it remains within the jurisdiction of the Court where it was instituted, and only awaits the representative of itho Succession of the deceased to be made a party in order to proceed in its trial". As to the authority of the Second District Court to malee the appointment, the Court said, that there was no property of the deceased .in the State nor any Succession to open; that it was therefore not a curator to a succession that was desired, but a curator ad hoc to "a non-resident defendant whose property had been attached and who had appeared and answered and died during the pendency of the suit et his foreign domicile idiere his succession was opened", leaving no succession to open in this State. The Court finally said: "Under the state of facts as alleged, the Pourth Court, which had jurisdiction of the suit at its inception, did not lose it by the death of one. of the defendants, and alone had the authority to appoint a curator to represent the heirs of that defendant in that suit, there being no succession opened or to be opened in this State, and no means being provided to bring the foreign representative of the foreign succession before our Courts. The judgment was therefore rendered contradictorily with one not authorized to represent the parties, and must.be annulled".

No one of the Articles 21, 120 or 361 of the Code of Practice or 1113 of the Civil Code was quoted in the opinion.

If we should follow plaintiff in his argument and pleadings, and in his conclusions of this opinion, the law would then read that upon the death of 4 resident defendant,-ing whether after answer filed, the Judge shall appoint a curator ad hoc to the ^nrrrrim of thr^rrrin^nr tn 1l1n hn1~r~^i~i thrml know-•a- and without naming them, contradictorily with ^^^■judgment shall he rendered against the Succession of the deceased defendant. We are sur« that the law docs not read that way and vie do not interpret the decision in the 30th. A., 25 as containing any such meaning, ^e understand that the Court held in that case that there was and could be no succession of the deceased lelson in this State for the lwo reasons that he did not reside in this State and had left no property here, and that his Succession had been opened in his home in Indiana, and that his heirs, if he had left any, and the representative of his Succession, resided in Indiana, and there was no other means of reaching them except by the appointment of a curator ad hoc as in cases of attachment against foreign defendants^V But the decision does not justify the conclusion that when a defendant, a resident of this State, dies in this State, a plaintiff raayy -- proceed to judgment against the Succession of the defendant^by^ hawing a curator ad hoc appointed to the Succession/and keMHW of the deceased^ In our. opinion there is no warrant in the law for such a practice and no case has been quotéd in which it has been done. As we understand the law, a suit can be continued against a resident defendant who dies after answer filed, only by making parties to the suit the heirs of the deceased defendant or the representative of his Succession by personal or domiciliary service if they reside in the State, or by appointment of a curator ad hoc if they resid-e out of the State» 3

It is elementary that a judgment rendered for or against a dead person is a nullity. 2 A., 484; 8 A., 80; 9 A., 241; 10 A., 778; 23 A., 102; 29 A., 141; 33 A., 1013; 41 A., 885.

In the case of Mc Micken vs. Smith, 5 N.S., 427 (430) the Court said;

"It appears that previous to the decision of the case in the District Court, on the death of one of the defendants being shown, it was ordered, "that Archibald Haraldson be appointed curator ad hoc to represent the interests of the defendant during the pendency of the cu¿te Th<s curator ad hoc is the same person or» whom the appeal tog served. But we do not think the case of the appellant is made oetter by the diSv;losure of this fact. Our Code of Practice requires, th«t if the defendant should die after issue .joined, his heir must he citod. This is vh-»t should hawe b«en dono herc,*nd until it wa3 dona judgment could not have been regularly given in the District Court again ¿it the Succession of the deceased".

In the case of Stith vs. Winbush, 3 La., 442, where the defendant died after judMp'ent had oeen rendered, the Court said:

According to t^sge laws, when one of the parties to a suit dies after issue joined, it continues between the surviving party, and the heirs \»r representatives of the deceased. Cede of Practice 361". 5 La., 526.

In the case of Mc manus vs. West, 18 La., 41 v/nere a curator ad hoc was appointed to a plaintiff who had died after issue joined, the Court said:

"It (plaintiff’s death) however does not justify the appointment of a curator to his heirs. If they were within the State no curator could oe appointed to them x x The appointment oeing irregular, all the posterior procee tngs contradictorily with him are equally so" .

In the Succession of Cunningham, 2 R., 443, it was decided that when the heirs of the deceased, or some of them, were present, no curator could oe appointed to the Succession.

In Chartier vs. Police Jury, 9 A., 42, a curator ad hoc had been appointed to a plaintiff who had died after judgment rendered; the Court said:

"The cases in ^hich curators ad hoc .may ue appointed by Courts to represent parties in suits, are enumerated and specially provided for by law. Vie are not prepared to say that this is one of the cases in which it may be done" .
In Norton vs. Jamison, 23 A., 102 (104) the Court said: "If defendant die after issue joined, his heir should be cited; until this be done judgment cannot be given against the Succession. 5 N.S. 431". 5 R. 508.

The case of Mc Closkey vs Wingfield, 29 A. 141, was a rule, against Bush, surety on an attachment tond to make him pay the judgment. Judgment had been obtained against the defendant; but prior thereto the defendant had. died. The Court Said:

"The question is not merely as to the manner of enforcing judgment against the principal before pursuing the surety. It is as to the existence of judgment against the principal. The death of a partner dissolves the partnership. If this arises after answer filed, suit does not abate, but may be continued by making the heirs or legal representatives of the deceased partner parties to the suit. No valid judgment can be obtained otherwise, as held oy us. This was done in the present case, and is an insuperable obstacle to the pursuit of the surety in the present attitude of the case".

Proceedings to sell the property of a defendant, after his death, without making his heirs or legal representatives parties are illegal. 41 A. 420; 31 A. 371; 22 A. 20; 5 A. 737; 5 R. 508.

The presumption is that a deceased did not die without either ascendants, or descendants or collateral /relations. 5 N.S.-431. The counsel fbr <the appellant stated upon the argument of 1 A the case that the deceased had left heirs in this City. t

We have therefore come to the conclusion that there neither law nor jurisprudence authorizing a plaintiff, upon th death of a defendant, a resident of this State, to cause the pointment of an attorney or curator ad hoc to represent his succession; nor can a curator ad hoc he appointed to represent his heirs unless they are shown to he 'lahsent

The rule against the defendant herein Willie A. Piazza is therefore discharged and the judgment against him reversed and avoided^

December 22d, 1919.

(IN RE; PIAZZA'S APPEAL)

OH F.EHEARIHG.

OPIHIOE.

St. Paul

The facta herein are fully set forth in the former opinion on file. Briefly they are aa follows;

Plaintiff sued and seized for. rent; defendant hondod the seizure, and appellant became auréiy on the forthcoming bond. After issue thuSj (and otherwise) Joined defendant died. Plaintiff by motion (unsworn) then suggested; the death of defendant; that her succession had lot bean opened; that there were no heirs present or represented. And theuaupon the oourt appointed an attorney to represent "the sucoession and legal representatives of the deceased"; contradictorily with whoa the proceedings were carried ti Judgment. The appellant, when called upon to produce the bohded property, denied the validity of the Judgment thus obtained, and thus raised the following issues, to~wlt;

1. Can a curator-ad-hoc, or similar rapres entail'-e, be vrlidly appointed (after issue joined) to the sucoession and hairs of a deceased defendant, where the oourt has under seizure property belonging to the deaeased, and the presumptive heirs are unknown, or absent, or non sul jurist

2. Must negative proof be administered to show that suoh heirs are unknown, or absent; or, will it sufftee merely to suggest the faot, and rest upon the failure of the heirs to present themselves and ••evindioate the property under seizure?

I

The Jurisprudence seams to be fairly well settled, that a plaintiff may, upon the death of a defendant after issue joined, proceed to have a curator-ad-heo. or other representative, appointed to the succession and (presumptive) heirs of the deceased, if the^be unknown, or absent, or non sui juris; but it is not altogether clear (for want of the full facts in each case) whether this right be, or be not, dependent upon the court having some property belonging to the deceased within its grasp, or immediately subject to its process. We presently incline to believe, that (for constitutional reasons) no judgment so rendered can effect persons or property not already reached by the court's process; bat that question does not arise on this appeal.

But where the court has under seizure property of the deceased, or where property immediately subject to tha process is involved (as an immovable), then the jurisprudence is quite blear that such an appointment may be made.

Ball vs Crockett; 9 An 293

Bussy vs Nelson, 30 An 25

Theus vs Kemp, 49 An 1657

Willis vs Ruddock Cypress Co, 108 La 256

Tell vs Senae, 122 La 1039

Abbott vs Pratt, 144 La 742

indeed under such circumstances it is manifest that the court must either make the appointment, or dismiss the proceedings, or have the seized property or its revenues wasted, to the ■benefit of no one and the injury of all. Eenoe this jurisprudence results ex Ipsa necessitate rgj; and is clearly constitutional.

XX.

We have therefore no doubt that under the ciroumstanoes of this case and the allegations of the motion ashing the appointment, towit, that there were "no heirs present or represented", the appointment might validly be made, and our former opinion so recognizes.

In that opinion, however, following Whitney Bank vs Alfred, 13 Orleans App 223 (136 La 230) that, to warrant the appointment, proof must be made of the facts alleged. But we now find that a later jurisprudence holds otherwise; and that suffices merely to suggest the faots {negative in character) that there are no known heirs present or represented, and this suggestion alone warrants the appointment until the heirs themselves appear.

Ihus in Abbott vs Pratt, 144 La 742, it was held that the "mere averment", unsupported by affidavit, that a defendant was absent {i. o, not in the State) sufficed to make a valid appointment, this on rehearing, after the court had just held that such absence (i. e. non-presence) must be affirmatively proved; and in a case to compel acceptance of title, which might perhaps have been set aside by proof that the defendant was in fact not an absentee (i. e. was in the State) when the appointment was made

She court was therefore'-.both C aljhorute- ¿_i’ f j:u.l in its conclusions; for its own former decree (still persisted in hy the author thereof) was before it; and it must, have realized that any future ohange in that Jurisprudence might (vrould) he destructive of the very titüe it was then for;ing upo” » reluctant purchaser.

III.

Cf course appellant should not have heen condemned more than she had bound herself, towit, the amount of the forthcoming bond (i‘300); nor should interest have been allowed ;:ept from the time she breached the condition of the bond, towit, by failing to produce the seized property when demanded of h. •• [April 20th 1919)

Our former-decree is therefore set aside, and it is now ordered that the Judgment appealed from be amended by reducing the amount allowf -i plaintiff in rule to "'breo hundred Dollars ($300), with legal interest from April 20th 1919; and as thug amended the judgment is affirmed; Costs of the rule and proceedings thoreon in the court below to be paid by appellant, and costa of appeal to be paid by plaintiff.

Hew Orleans la, February 9th 1920


author: John St. Paul.

text:
    NO. 7665.
    Mrs. Sadie G. Henderson Vs Frank T. Mooney, Superintendent of Police.
    State of Louisiana. Court of Appeal Parish Of Orleans.
   oímos.

By his Honor

John St. Paul.

This is an appeal from a judgment dismissing a rule to tax the costs horain against the defendant individually. The issue involved is whether a publio officer he individually liable, as of course, for the costs inourred by the successful adverse party in a suit directed against him in his official oapaoity.

X.

The main case was this; Plaintiff*s automobile, whilst in the temporary possession of aithird person, came fin some way not shown by the reoord) into the hands of the police department of the city of Mew Orleans; of whloh defendant is the active executive head.

When plaintiff, who resides out of the city, learnt of thlB, she mtSae at once to demand her property. But the Superintendent of polioe declined to deliver the oar on plaintiffs request, unless she produced a bill of sale recognizing her as the owner."

Apparently pláintiff had not with her,at the time, her bill of sale; for she afterwards sent it to her attorney. Whether or not this bill of sale was ever shown to the defendant, ot any further demand for the oar was ever made upon him, does not appear; but this plaintiff brought^suit and sequestered the car, annexing the bill of sale to the petition. The superintendent made no defense, and plaintiff had Judgment by default. Thereupon this rule to tax the costs against "Frank I. Mooney, defendant" followed.

II.

That the "Superintendent of Polioe" of the City of New Orleans is a publio officer; that the Police Department of the city of New Orleans is a "governmental agenoy"; that publio officers are amenitble to the laws and answerable to the eourty, individually end officially; are all propositions whioh are equally undisputed and indisputable.

Bat it seems equally troa in la*, and consistent with raaoon, that aotlona to oompal or restrain a public officer in his official ha aota fi.e. aots which can perform only by the actual power possessed by him through his tenure of the office) should be directed against him, not individually but in his official capacity; and certainly that is the common practice.

III.

Be that as it may, this suit was brought in striot conformity to the common practice. The caption fast there by plaintiff) names as the defendant "Frank T. liooney, Superintendent of Police:" the declaration, prayer, writ and Judgment are all directed against the same "superintendent of polioe;" the individual, Frank T. liooney, figures throughout only as the embodiment of the offlos whloh he holds; because "governmental agencies," as quasi-corporations, are distinct from the persona who execute them, and can function only through natural persons.

Had Frank T. liooney died, resigned or been removed or otherwise cdrÍLd-disbaied, pending this suit, not his heirs or personal representatives but his suooessor in office, would have remained in possession of the oar and beoome answerable to the court for any failure to obey its mandate. This suit, the^, was against the officer, not the individual.

IT.

That publio officers (excepting the (Jovernor, or members of the Seneral Assembly, and Judges, for reasons of high publio policy) are answerable to individuals for the damages oaused them ny the misuse of their power, is again indisputable; and it would seem reasonable that those damages should Include, among other itemB of loss, the costs incurred in the suooeBBful prossoution of suits brought against them in their official capacity and not otherwise recoverable.

But the grounds of action, and the relief obtainable against the individual, are In the very nature of things very different iron those against the offioer. An action lies against the officer merely because he is wrong, and regardless of his intentions good or bad; but against the individual only when he is wilfully wron£. The offioer is commanded to act or not to aot, thus and so, as the law may direct; but the individual is mulcted of money with whioh to make the injured party whole. In this connnection see Aot 170 of 1818; Seotion 24, par. 5, page 060; and Section 86, , par 2, page 061, in fine.

V.

Whether or not an offioer is liable officially (i.e. out of the publio funds in his oontrol, if any) in suits in whioh the officer is oast, is a matter whioh we are not oalled upon to investigate. The following cases may perhaps have some bearing on that point, and we note them here merely for future reference, vie, State ex rel Dufard vs Judge, 45 An 1299 (1303); 13 Orleans App 159 (161); State ex rel Lindner vs Tax Collector, 6 Orleans App 345 (347).

But this much we do feel authorized to hold, viz, that a public offioer, sued and oast in his official capacity is not individually Háble as of opurse, for the oosts of such suit.

To hold otherwise, would be to hold in effect, that a publio officer who refuses to oomply with any demand whatever made upon him as to the oonduot of his offioe, does so at his own risk and peril, whatever may be his sinoere belief as to his duty in the premises. And sinoe human nature will ever assert itself, it follows that the publio servios must inevitably suffer greatly, by reason of the very natural reluotance of publio offioials to exhaust their substanoe in the payment of costs incurred in unsuooessful (even though bona fide) attempts to defend the publio interests.

We therefore think that the trial judge did not err when he dismissed plaintiff’s rule; and accordingly,

The judgment appealed from is affirmed.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    GEORGE B. WERCKLEY VS. NEW ORLEANS HOMESITE CO., LTD.
    No. 7668.
    January 26th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit oy a vendee to recover from his vendor the purchase price of property paid oy him under a contract of sale which he alleges he signed under false rep resentations sne through error.

The plaintiff alleges that he signed the following contract

"The New Orleans Homesite Co., Ltd. herein agrees to sell to Geo. B. Tarckley of Bogalusa, La., who also agrees to ouy 2 lots, as per location and measurements of plan on the reverse side hereof, an^ os 1 ot Ho.102 on said plan, for the price and sum of $780 payaole $50 cash, receipt of which is hereoy acknowledged, and balance in monthly payments of $15 oearing 6% interest from date, When one half of the purchase price hereof has been paid, the sáid Company agrees to transfer this property and purchaser agrees to accept title ny act before Felix; J.Drey-fous, ITotary Public, free from all incimbrances, except the unpaid portion of tne purchase price. Purchaser to assume taxes of 1914 ane subsequently. Should toe purchaser fail to make two consecutive payments before the sale one half of the purchase price has been paid, it may oe co^nieered as an aoandonnent of his interest in this contract, and it may Decios forfeiture, unless the Company ■]}''<*9 an extension of ^ time."
"Repurchase Clause. This Company agrees to re-our-chase this property when called upon as hereinafter stipulated, at the price herein sold, plus 10% profit, upon written notice to this Company within ninety days prior to the date of maturity of the las^t note and subject to the agre ment then entered into to oe banding apon both parties. Signed in duplicate this 11 day of ■February, 1914,
Signed
New Orleans IIom«e3ite Co,, Ltd.
Jno. YF. Cavanaugh
P

Witnesses:

George B. YYerckley "

R. L. Sanford.

The plaintiff further alleged tbnt the said R.L.Sanford was the representative and sales-agent of the defendant, the New Orleans Homesite Co.; that he obtained the signature of the plaintiff to the above contract; that both before and at the time of signing of said contract the said Sanford repeatedly represented to petitioner that the above contract would and did obligate the defendant Company to buy the t.vo lots of ground back from petitioner at a profit of ten per cent on the amount of the purchase price; that said representations, so made by said Sanford were the sole inducement to petitioner to sign the contract, and that he would not have signed it Dut for said representations; tha» petitioner placed his faith in said representations, and believed that bhey were embodied in the clause above quoted designated in said contract as the "Repurchase Clause"; that several months after signing said contract he consulted legal connsel upon the same, and was adbised that the said "Repurchase Clause" contained no obligation on the part of the defendant Company to repurchase said lots at a ten pjr cent profit or otherwise; that this constituted an error on his part on the principal part of the contract produced by the representations of defendants ag^nt and by said "Repurchase Clause that said clause was designed to make petitioner believe jnd he did believe that it imposed the obligation upon the Company to repurchase the lots at a ten per cent profit, and he •■was induced by said belief to sign said contract; petitioner alleged that under the terms of said contract 5ie had paid the defendant Company £-245 for «hich he claims judg-u»snt,

The defendant for answer admitted the contract of sale above set forth, and that R.L,3~nford was its agont, but denied all the other allegations in said petition contained.

This answer is a specific dsnial even of the allegation that the plaintiff paid the defendant any part of the purchase p^ice, and is sworn to by J. *V. Cnvanah, President of the defendant Company, although the contract of sale is annexed to the petition and is signed Dy J.W.Cavanah and contains the specific admission that plaintiff has paid $50 cash "receipt of which is hereoy acknowledged". V/e take this occasion to call the attention of the har to the fact that such contradictory and careless pleadings, sometimes presented to us, hut often not attributable to their clients, are in oppesition to the spirit and object of the Practice Acts of 1912 and 1914, and are not calculated to place their clients in a favorable light before the Courts.

The'-e was judgment for the defendant and plaintiff has appealed.

Plaintiff filed in evidence one check of $50 dated on the day?of the contract Pebrudav 11th, 1914, to the order of R. L. Sanford and by him endorsed, and his 12 promissory notes for $15 each payable Iliarch 20th, 1914 and on each successive month thereafter until February 20th, 1915, all of which are marked "Paid" with the stamp of the liew Orleans Homesite Co., Ltd1! ; and one receipt for $15 signed by the same Company; making in all $245, and the plaintiff swears he paid that amount to the defendant Company.

The plaintiff and his wife are also examined, as witnesses, without objection to th« admissibility of their testimony, except that it is "irrelevant under the pleadings". That testimony corroborates every allegation of the petition.

'To evidence whatever was introduced on behalf of the def endant.

The only question, therefore, is, does plaintiff’s petition disclose a cause of action?

•7c are not dealing here with an attack upon a contract on the bare ground that it contains a clause of the existence of which the plaintiff was not fiwarc, or that it does not coutain a clause which the plaintiff thought it did contain, without the suggestion of deceit or fraud on the part of the vendor. If this war© the case, the plaintiff might be dismissed under the rul*-t'iot h-% spoilt have read he was signing and th«t he cannot take advantage of hia neglect to use his senses. But the charge made by th .* i" .,V.fc r. "r-pivchase clause" was inserted in the contract, ^.nd that he was told by hie vendor that the meaning of that clause wa3 that the Company would buy back the lots with ten per cent profit, after he had made a certain number of payments, and that the Oowpany would do so, and that he put full faith in that interpretation of that clause made by the Company, and, on the faith of that interpretation, signed the contract, made 14 payments and was prepared to make all future payments; but that he has been advised by attorneys learned in the law, that he has been deceived by those representations and that the repurchase clause imposes no such obligation on th'e Company and binds it to nothing. We have analysed and criticised that atlause and wer- are inclined tb conclude that the attorneys consulted by the plaintiff were correct in their opinion. But whether their opinion is correct or not, one thing is certain, and that is, that the clause is of such ambiguity as to throw upon the defendant the burden of making it clear. Article C.C. 2474 (2449) provides:

"The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him".

When the basis of plaintiff's action consisted in the alle-f gation that defendants agent had repaesented to him that it would buy back the lots at ten per cent profit, but that the repurchase clause in the contract of sale embodied no such obligation, it would have been in the power of defendant to dispel any uncertainty in the meaning of this clause by an an*w-r to those allegations which would havs put the question at rest, by a cor.did and categorical admission of the Company's interpretation of the clause. But the Company denies specifically e«ch and every allegation of the petition; it denies that the Company made any representations to th« plaintiff that it would ouy back the property with ten per cent profit; and at the -name timf it denies that the Company is not liable to repurchase on thns terms, thus leaving the subject matter in the same ambiguity and uncertainty. It is perfectly evident that if the plaintiff was made oy the defendant to believe that he was buying under certain conditions and that defendant denies those conditions, that the minds of thetwo parties did not agres upon the contract and that there was error on both sides which invali-JU. 33# — / 3 ¿3.177 dates the contract

It is the Settled jurisprudence of this State that a purchase* cannot be .nade tp accept a title with a cloud, and that whenever he has ’nade payments on account, under those circumstances he may recover his money. 40 A., 571.

In 46 A., 499 (50$) the Court said:

"The law will not hold a party bound vfoen his consent is the result of error bearing on the substance of the contract, caused by fraudulent representations of the other party to the contract". 25 A., 292.

C. C. 1847 (1841) ^9:

"If the artifice be practiced by a party to the contract, or by another with his knowledge or by his procurement, it vitiates the contract11, // ^ ^

The representations made by the defendant were calculated to enchance the selling price of the lots and this daiange^piain-tiff, and allured him by the assurance that he could never lose on his oargain, and would be sure to make a ten per cent profit.

The case of Prescott vs. Cooper, 37 A., 553, does not support the defense. In that case the plaintiff bought of defendant his fcharea of Citizen’s Bank Stock and transferred the mortgage securing the payment of the stock upon hia own property and assumed -the payment of the stock and of a stock-note of $1840. He subsequently filed suit to annul the transaction upon the ground that the Bank had called upon him to pay stock contributions of $2 a share which he had paid; th^.t Cooper had falsely represented to him that he would have to assume only the stock-note of $1840 and that Ryan, Cooper's attorney, had informed hi.r. that the assumption of the stock-mortgage was n mere formality and imposed upon him no liability. The Court found thnt the contract signed by Prescott had been read to him by the Notary and discussed, thatm its texins were clear and unambiguous, that the allegations against Cooper were not estaolished, and that Ryan was not Cooper's attorney. In the course of the opinion the Court said;

"If the formidable allegations of this petition were sustained by convincing evidence, the plaintiff would certainly present a strong claim for relief". 36 A., 620.

The same may be said of Ray vs. Mc Lain, 106 La., 780 (791); 6 Toullier 6 93. 94- S 32-- 2

In th# cas# under consi¿«ration th# allegations of fait# representations are fully proven; no attempt is made to question their truth,and the representations were made by the President himself of defendant Company, and by their acknowledged sales-agent by which they are bound. 7 R., 406 (415); 1 Story Equity-4193 (a). — //

In Allen vs. Whetstone, 35 A., 846, the opinion is summarized in the syllabus thus:

"A party to a written contract cannot avail himself of error resulting from a failure, to read the same before signing, where not induced to do so by the other party thereto." 22 A., 14; 11 La., 77 (80); 10 La., 376.

’ The converse of the proposition is equally true, that the plaintiff is entitled to relief when he was induced in error by the defendant.

Lopez vs. Mc Adam, 7 A., 58, the Court said:

"When a party has been induced by misinformation and suppression of material facts x x x he is entitled to have the contract annulled, and to recover from the other party any sums he may have paid".

In the case of Theriot vs. Chaudoir, 17 La., 445, the Court said:

"When there is doubt as to the error in the motive, the Court willi incline in favor of a party striving to avoid a loss, and against one seeking to obtain a gain".
"Error consists in believing as true or existing, that which is false or non-existing". 33 Dalloz p. 79 Sill.

The plaintiff believed from his reading of the contract and from the representations of the defendant that it was obligated to repurchase v'ith ten por cent profit -the lots* he had bought; and the defendant well knew that the plaintiff purchased with that understanding^ although no such obligation was contained in the contract. Plaintiff was in error and therefore the contract as to him never existed. 1st. Story Equity;§134; 138 (c) («) (k), 155, 190 (’o), 191, 022; 13 Ct. App., ^

"Whenever one persons misrepresents, or conceals, a material fact, that is, a fp-ct which is peculiarly within his own knowledge, such transaction will be void, on the ground of fraud". Story Equit^b212 (a).
"If consent is obtained "oj^medfijiktid' imposition, circumvention, surprise, .or>1ilKéú#'"f¿f 1 uenc«, it is to be treated as a delusion, and not as a deliberate and free act of the mind". *222.

It is therefore ordered that the judgment herein he reversed and annulled; and it is now ordered that there he judgment in favor of the plaintiff condemning the defendant to pay to him the sum of Two Hundred and f.orty-five Bollara with five per cent per annum interest from June 28th, 1917 till -,id and all costs of suit.

January 26th, 1920


author: Dlnkelspiel, J.

text:
    No. 7669.
    Court of Appeal, Parish of Orleans.
    State Ex Rel George Seth Guion, District Attorney, -vs- Frank Chauvin, Parish Treasurer.
   Dlnkelspiel, J.

This notion inspires questions of law alone.

The Relator sets forth that he Is the Distriot Attorney for the 37th. Judiolal Distriot Court for the Parishes ~'vs>'hf Assension, Assumption and St. James. That in addition to 1 _ the duties derolring upon him In the prosecution of all criminal oases arising in said 37th. Judiolal Distriot, he by virtue of his said offloe as District Attorney is«also the legil advisor of seven public boards and corporations; that in the dlsoharge of his duties he has rendered and will continue to render valuable servioes for which if compensated otherwise than through and by means of the contract period refered to he would reoeive and be paid an amount pargely In exoess of that provided for In said oontraot. He further shows, that in said offlolal oapaoity of Dis-triot Attorney In and for the Parish of St. James he is the holder and owner of three oertaln warrants Numbered 4668, 4681 and 4738, the same having been exeouted and given Siren respectively of Haroh, April and Hay 1919, eaoh for the sum of $63*50; that the said narrante are due to him for his salary as District Attorney for the months of February, ttaroh and April 1919; that said warrants are counter -signed by the Seoretary of the Polios Jury of the Parish of St. James, and under their tenor the Seoretary of the Folios Jury of the Parish of St. James is directed to pay to the order of Relator the aforesaid sums due him as aforesaid and he annexes the warrants for certainty of description.

He further alleges that said warrants were orders issued to him as Distriot Attorney by the said Police Jury for the Parish of St. James in part .payment of his salary as set forth in said warrants and under the oontraot duly entered into between Relator as Distriot Attorney and said Polloe Jury, under which oontraot the said Police Jury bound and obligated itself to pay to your Relator the fixed and determfc ined sum of $750.00, per annum in full compensation for his serrines and expenses as Distriot Attorney in lieu of expenses, fees, commissions oto.

Relator further alleges, that said oontraot was entered into in aooordanoe with the laws and statutes of Louisiana, speol -ally Seo. 4, of the Aot of the General Assembly of the State of Louisiana of the Extra Session of 187?, being Aot 30 of said Extra Session, and under full foroe and effect and in every way binding upon your Relator and said Polioe Jury.

He alleges further, that for many years prior to his eleotion and qualification as Distriot Attorney the Police Juries of the several Parishes composing the 37th. Judiolal Distriot had availed themselves of the advantages contemplated and provided by Sec. 4 of the Aot No. 30 of 1877 by entering into contracts with the Distriot Attorneys of said distriot and they continued said oontraots with Relator, and agreed to enter into and did enter into said oontraots as had been dona by them with the predecessors of Relator whereby the fees and commissions earned and the expenses inourred by them should be paid to then by contract# entered into with Police Juries.

That on* the 6th. of May, 1919, Relator through his Attorneys presented said three warrants or orders to Frank Chauvin, Treasurer of the Parish of St. James for payment and that payment was refused by said offioial, on the ground as written by him on the baok of said warrant or warrants, 'that he was advised by the Supervisor of Publlo Aocounts of the State of Louisiana not to pay sane.

That said Treasurer had ample funds in the Treasury with which to pay said warrants of Relator, but declined doing so for the reason stated, and therefore,Relator, concluded with a prayer, that an alternative writ of mandamus issue herein direoted ,to said Frank Ohauvln, Treasurer for the Parish of St. James, ordering him to pay to Relator the three warrants or orders herein declared upon and attaohed hereto at onoe or show cause to the contrary.

The petition is sworn to and the order issued on the 17th. of May, 1919 and the alternative writ of mandamus was fixed for trial on the 4th. of June, 1919.

Ohauvln, Treasurer of the Parish of St. James and Respondent in this oase for answer to the alternative writ of mandamus, and also for answer to Relator's petition to show oause why the writ should not issue and why Relator’s suit should be admits, dismissed etc., admix that Relator under the law is made the Attorney of the different boards therein named, situated in the Parish as stated, but denies, that in representing rapid Boards, Relator was paid the fees or commissions allowud by law that the amount received by him therefor would fes greater than that whloh he reoeived under the oontraot shioh he now seeks to enforoej denies further that said contract was entered into in aooordanoe with the laws and ntrii”,, / of the State of Louisiana, and whilst it say hare been enters! into presuant to Seotion 4, of Aot, 130, of the Extra Session of 1877; denies that said aot was in full foroe and sffeot and oould hare serred the basis of said oontraot at the tiae the saae was entered into, hut arers on the oontrary that the statute abov* sited at the tiae said oontraot was watered into had been superoeeded by Artlols 135 of the Constitution whloh limits the fees of District Attorneys to such as aay be fixed by statute under the liaitatlon of said artlols, and that in aooordanoe with said provision the Legislature passed Aot No. 96 of 1880, Seotion 3 whloh fixes his fees in wxtgtm-atxsattsrs oriminal matters and Seotion 5 in ol^jfl casos and the fees thus fixed oannot be changed, altered or abrogated by agreement and the oontraot herein pleaded is null? void and of no effect; he denies further the doduotions of law and equity drawn from the facts thus alleged, and particularly the doduotions under Artiole 10 of the petition by whloh it is alleged and affirmed that it was the ministerial duty of Respondent to honor and pay the warrants as presented to him as alleged* On the oontrary, he avers that it was his plain duty not to honor and pay said warrants in view of the instructions given him by the Supervisor of Publlo Aooounts, and therefore he prayed that the alternative writ of mandtus--us heretofore Issued be recalled; that the pre-eaptory mandamus prayed for be denied; that Relators demand be rebooted, and for general and equitable relief*

The answer is sworn to by the Attorney General of Louisiana* Under the Constitution of Louisiana of 1888 and the various subsequent aots of the legislature inoluding the extra session of 1877, fees and smolumyants, not only of Distrlot Attorneys but of Lawyers seleoted by the various boards were permissible and deoisions oannot be found to alter or vary the effeot them given, but under the Constitution of 1879 and 1898, Art* 134, road»: "Thor# «hall be a Diatriot Attorney fox eaoh judicial diatriot is tha State, who ahall ha alootad by tha qualified «ata»» electora of tha jadloial diatriot at the same tiaa and for tha aaaa.taxa aa, la provided in Artiole 109 for diatriot judges. Ha ahall raoelva a aalary of one thoueand dollara pas annua, payable monthly on hie own warrant. He ahall ba an actual raaldent of the diatriot and a lioenaed Attorney in thla State.

He ahall aleo raoeive fees; but no faaa ahall he allowed in Orlainal oaaea exoept on oonriotiona whioh faea ahall not ezoaed five dollars in oaaa of a misdemeanor."

Tha Oonetitutlon of 1913 follows substantially in identloa language. The Aot Ho. 96 of 1880 miii^ilaiiiialaVtlt Artiole 134 of tha Constitution of 1879. The aot 30, of the Extra V Sesalon of 1877, authorising Polioe Juxlos to oontraot for fixed sums of money with those offioials who reoaive fees under existing laws in compensation for servioes did not apply to Diatriot Attorneys who are State and lot Pariah offloers.

The question presented is, did the Polioe Jury of the Parish of St. Jaaes have the legal right under the Constitution and the Aot referred to to go beyond the fixed salary allowed to the District Attorney together with fees in oases of oonviotlon only. We think not. The law is positive and oannot be ohanged under any oirouastanoes by any Aot of the Legislature.

The Supreme Court of our State, in the oaae of State Ex Ral Broussard, Diatriot Attornsy-vs-Henderson, Sheriff, to be f&und in Volumn 130, La. Reports, Chief Justice honroa, dealing with the matter in hand in the syllabua, headed Diatriot Attorneys oompsnsatlon, says; "The purpose of Aot Ho. 96, p.133, of 1880, was to deal with the whole subject of the duties and oompsnsatlon of diatriot attorneys, and, iM^ajqjhore may have been some provisions of the ten exls--tin* la» whioh aaoapad iba it» operation, it is so modified and euperoeeded that la» aa to preolude any recovery by the dlatriot attorneys of the one-fifth part of the fines imposed (after deduoting the ooaaisslons of the sheriff) in addition to the fee provided by Section 3 of said act".

And again: * Artloles 135 and 180 of the Constitution of 1898, whether taken seperately or together, are not susoepta-ble of the construction that they Intend to alio» distrlot attorneys to oolleot ooaaisslons, as contradistinguished froa froa fees, or fees, save as provided by the Constitution itself.*

And at page 543 in the body of the decision the Court goes on to say: *Applying this rule to the instant oaae,we are of opinion that the purpose of Aot Ho. 96 of 1880, »as to deal with the »hdle subjeot of the duties and compensation of distrlot attorneys, and that, whilst there may have been soae provision of the existing law whioh ssoaped Xhaxaar its operation, it is so aodlfled or superoseded those upon whioh Relator relies as to preclude his recovery upon the olaia whioh he here sets up.*

In the case of State Xx Rel Bourg, District Attorney-vs-Uorrero, Distrlot Attorney, to be found in 133 La. Reports, and whioh was more in the nature of a orlainal prosecution, amongst other things the Court says: 'Tor many years, and in aany Parishes of this State, the polios juries have Iatxapx interpreted the law under whioh they exerolse their powers as authorising them to enter into contracts with the ft distrlot attorneys for the payment to those offloers of salaries, in lieu of the fees allowed by law for oonvlctlons, and, suoh interpretation having been adopted and aoted upon, by the polloe juries of the Parishes oontltutlng, and the district attorneys of, the Twenty- Eighth Judicial Distrlot , in good faith, the reoeipt of the Mtvr salary so agreed on furnishes no basis for the oharge, X brought against said distrlot attorney, of sntortion in offlos*.

opinion stated the la» of the oase in-tide State when at Pace 4, he ears: * The rules of law relative to contracts do not apply to the official relation. The power to create a puhllo off loo, to define Its duties, and to fie Its oo ripens at ion is essentially governmental, and there are no prlnolft pies more firmly established than that where no compensation is provided by law, none is due, and that the compensation as fixed by la», may not bs ohanged by agreement* Contracts attempted to be nade which provide for compensation different .from that presoribed by la» are void as against publio policy. Qyc. Tol. 39, p. 1435. *

and the authorities cited.

It is therefore ordered, adjudged and deoreed, that the writ of mandamus mads peremptory by the District Court be reversed, annulled and set aside, that this writ be refused and Delator» is denied with oosts.

On Application for Rehearing.

Tha brlaf forte rehearlng.has not convinced ua that wo erred In arriving tooths concluslon that Act 30 of 1S77, Section 4, p. 47 Extra 3aaslon had been rapaalad,1 as far as tha District Attorney ni oonoemad, by Articles 124 of tha Constitution of 1879 and 125 of the Constitutions of 1898 and 1913, and by Act 96 of 1880 Section 3 p. 122. Tha oasa of Otate ax ral Barro* vs. Treasurer, 30 A., 518 rallad upon by relator was decided in ¡íaroh 1878 under the Constitution of 1868. Thera was no law at that tima prohibiting a.oontraot with tha Sheriff for his compensation.

Tha Court said,on page 516, In speaking of Aot 30 of 1877:

'Read In connection with tha other statutes on the sama subject matter and with the general law of contracts, we think a fair Interpretation of this statute Is that It enabled the parishes to make contracts for offloara for specific sums in lien of teas of office a. o ".

'.!i)t Binco than tha Constitutions of 1879 and 1898 have been adopted, and our Interpretation of them is that suoh contracts, t as Sí»r ao District Attorneys are oonoemad, are prohibited by \ their letter and spirit.

But the relator calls our attention to the cases In 11 A., 673, 41 A., 156, and 47 A., 1679 wherein it was decided that neither a State Treasurer, nor a mayor, nor a ^tate Auditor can question the constitutionality of a law specifying their particular duties. The existence of the law attempted to oe enforced in those casee wae not denied; their legality alone whs contested. But in the case at bar the relator 3eoka the execution of a contract made by him with the Police Jury by virtue of Act 30 of 1877. The defence of the Treasurer ia, not that the act of 1877 ia unconstitutional, out that it has been r«p*al*d, as to relator. w* h«y* so held, and we oanaot a** ho* It oan be the legal duty of th* Trdwwwer to pay a oíala basad upon a lav whloh has peail repealed."

In th* 14th. A. p. 227, th* Court aald*

•If upon th* fase of the warrant. It appear* that It Is drawn for a consideration for whloh th* law has mad* no appropriation, then h* aust rsfus* t* pay it*.

Ibis languag* was approval in State *x r*l Barro*, 30nA., 817. Th* Court said:

"Th* duty of ths Parish Treasurer to make th* registry of alalias whloh hav* been allowsd by th* proper author* ltlas is olear and Imperative under th* statute; but as was very properly held in th* oas*s Just olted. It would b* other«is* If th* oertlfioat* of th* Clerk and Judge should show upon Its faoa,-to whloh w* will add. If th* aaeount to whloh th*y war* appended should ah** * that they wars not «1 thin the law Co*,

and tha Court refuoed to Issue the mandamus In favor of th* Sheriff for 'serving road notloos and for notloas to jurors and nlleege".

In Stats ex rel Houston 30 A., 82, where -th* la* aad* It the duty of the City to pay the Sheriff's See* upon th* approval of th* Judge and Clerk, th* Court refused to aandsaus th* City Treasurer to pay hie approved bill th* oorreotn*** of whloh th* City disputed.

It 1* therefor* ordered that the rehearing be refused.

December 8th, 1919.