author: CHARLES E. CLAI30RHE, JUDGE.

text:
    CHARLES F. CLAIBOPNE, JUDGE.
    CHAS. J. BABST, JR. VS. SOLOMON PERITZ AND JOSEPH YOCHIM.
    No. 7548.
    May 15th, 1919.
   CHARLES E. CLAI30RHE, JUDGE.

The plaintiff Bues to recover the price of cement and other work done hy him.

The cement work is based upon the following proposal:

"Hew Orleans, La., July 26th, 1917.
Hr. Yochim.
Dear Sir,
I propose to do the cement paving at Robert and Liberty Strs. as it was shown to me by Hr. Petty as follows: Main entrance is to be made in small stones and colored red with Mosten Builder Hardner - concrete is to be gravel with 1-3-5 mixture - top is to be l-l£ cement - for the sum and price of $160.00 One Hundred and sixty dollars - the above work is to be done in the best workmanlike manner- Trusting that this estimate will meet with your approval, I ara
"Signed" Chas. J. Babst, Jr.,
1818 St. Andrew - "

The plaintiff alleged that subsequent to the aDove contract he made verbal contracts with the defendants

lo for paving one room for ten dollars;

2o for paving the sidewalk for $2.50;

3o for cementing the foundations and pillars for $7.50; and

4o for the sale of 3000 feet of flooring @ $11 per H; that he performed his contract and that defendants have refused to pay him; he prayed for judgment for §213 with privilege upon the building.

This suit was filed November 15th, 1917.

The defendants answered admitting the contract for $160o00 and the four other contracts amounting together to $53„00, hut denied that plaintiff had performed his contracts wither written or verbal; they admitted that they had not paid the price; they averred that plaintiff' had agreed to do the $160 cement pavement "with concrete composed of one part grave], three parts cement, and five parts sand; the same to be well mixed, put down four inches thick, composed of one part of cement to one and one and one half parts of sand; . . . that the concrete usSd in the pavement above described and in the top above described is not composed of the parts above described of the materials used therein; that the cement used is insufficient in amount and insufficient in quality, forming a mass of insuffi ciont strength, which is now disintegrating and haB been disintegrating from the time plaintiff claimed his work was complete; that the work done by plaintiff is not done in a workmanlike manner, and that the whole contract is not such as these defendants can be called upon to accept and pay for"; they make practically the same allegations concerning the oral contracts for cement work; they make no allegations concerning the contract for the sale of the flooring.

The case was tried and judgment was rendered on December 12th, 1918 in favor of plaintiff for Thirty-three dollars, presumably for the price of the flooring.

After a motion for a new trial had been denied to the plaintiff he appealed.

The plaintiff testified that he ms asked to do the job immediately; that he did it in a first class manner; that the materials and mixture are the best to be had; that he worked until half iist six at night to complete the job; that the next morning at 7o'clock he found defendants' carpenters on the work he had finished the evening before, and he had to order them off the job is perfect and has not a crqck or a break; it is down for £!5 years; the pavement is red with a blue border ; the only objection of Mr. Peritz vías concerning stains on the cement caused by his oiling the floor; every kind of work was being done there at the time, carpenters and others; there were 25 or 35 men at ork; Mr. Peritz' superintendent was overlooking their work.

A. T, Petty was in charge of all the work going on, including the cement work, representing the owners - Yochim and Peritz the pavement was put done according to the general rule of paring as to all buildings he had been working on, about four or five inches concrete on the face (base) and one at the top; Yochim and Peritz never complained to him aoout the pave-* ment;

Cross-examined;

Q,. If you were called upon to swear, under oath, that this concrete was mixed in the usual manner, and the usual proportions of sand, cement, and gravel put down upon a foundation that is usually made, would you be able to swear that it was, ^br not?

A. Yes, I would. . . . The cement was supposed to be one cement, three sand, and five gravel.

Q. Well did it contain those proportions?

A. Yes, sir, it did. I was on the job, and saw it mixed.

Q. Would you call this job, after Mr. Babst was finished ’with it, a first class job?

A. 1 would,

Sam Milan is the workman who put down the pavement; saw it about three weeks ago; made an examination of it; there was no cement broken; it was in first class condition; has not been working for Babst for wight or nine months; the only place where there is a break is where they put a patch, - on the side towards Saratoga Street.

Solomon Peritz, one of the defendants^ swears that the pavement is not in good condition; that nit is cracking; there are holes in it, like a honeycomb for want of proper mixture; on the side towards Saratoga Street, by the door,where Mr. Babst put in a piece of sidewalk, that is going to pieces, cracked, and broken all to pieces; , . there was gravel and little chips of wood in it coming out and leaving holes all over the surface;

Q,. How large are those cracks now?

A. I couldn*t say - like a crack in a pieee of china, on the side the cement is going all to pieces, crumbling to pieces, there is a space bigger than his hand breaking off; the top also Is breaking off in front of the theatre; the cement seems to hare raised and the edge i3 all breaking off; there are cracks on the sidewalk; one of them is large enough to put a lead pencil side ways, it runs about 18 inches; the top is rubbing off; there are two holes in it, one of them is big enough to put his finger in, 2¿ inches big, very near half an inch deep; the top is cracking all over like cracks in porcelain and all the corners are breaking off; never had any repairs made cracks started within 30 days after work was done; he is ready to pay the $33 for the lumber at any time; the stains were one of the reasons why he did not pay; there was not a proper foundation laid to hold up the cement; where the oamerit meets the sill it i3 receding and leaves a hole.

M. B. Tournillon has the title of^assistant engineer and general foreman^for the sewerage and water board for the last 15 years; has had 20 year's experience in concrete pavements; has examined the pavement sued for; the work was not properly done; the material used was dirty; there were foreign substances in the sand that caused those little holes; he picked oíIÍIwood and a couple of pieces of shell; the sand "was sifted with a sifter they usually use for' that class of work, but the mesh is so large it allows these particles to go through; I guess the sifter they used has about 12 holes to the square inch, that is about a little smaller than, a lead pencil; now a pebble or piece of brick, or something like that, smaller the* the hole, would go through the sifter; a pavement containing holes like that is not a first class job; there afe cracks on the river side of the building, called "hair-cracks; they are due to putting on the cement not wet enough, and the sun heating it quickly causes an initial set which draws the cement together and the little cracks will go through; these cracks should not occur in a first class job, because they can be prevented; he did not find any crqcks in the pavement, but found cracks in the joints where the two pavements joined; there was a crack extending between the pavement and leading from the shillinger walk to the building line; what caused it, he does not know; it was about the size of a lead pencil; but that is not in the pavement and did not hurt it; it might he that the pavement , stayed rigid and the sidewalk moved; or vice versa; or it might be that both moved; plaintiff put a patch about one foot widw by eight feet long on the side of then old schillin-ger side walk, and there was a oraok there, "not in the pavement itself but in the joint, where he joined on to the old pavement"; the stone he put in went down fully half an inch; he did not notice any part of the pavement where the top was rubbing off; there was a hole pointed out to him between the words Tern Theatre"; he thinks it is in the flooring; but it is impossible to get a trowel on that piece to finish it naturally; that is the only place he knows; the hole was of the thickness of blotting paper; the pavement had broken in small pieces between the flooring of the main building and the flooring of the entrence; he "got a little piece out about the size of one of his little fingers, and there were other cracks, about an inch long and one quarter of an inch tfide, not more than a quarter of an inch thick; taking all the pavement as a whole he does not consider it a first class job -; a pavement properly laid in the proportions fixed in the contract would make a first class piece_of work; "that is aveiy good mix; it is above the ordinary for sidewalk work; the concrete itself was first class; these hair-cracks would Show up inside of a few days,the moment the schillinger is dry; these hair-cracks do not affect the strength of the cement it is simply for appearance, and nothing else; . . . all the work I saw was a good mixture of sand, cement, and gravel"; by putting a joint between the pavement and the sill it met, the chances are the vacant space would not have taken place.

The defendant has' mistaken his remedy. He had no right to refuse absolutely to pay for the work he had received and was enjoying. The jurisprudence of this State is that a contractor who has delivered his work to the owner may sue him when he has received it and is in the enjoyment of it; and that the contractor may recover the value of the work which has inured to the benefit of the owner, although the work be defective or unfinished; if a price has been agreed upon the remedy of the owner ia a reduction tHereof to an amount necee-sary to perfect or to complete the work according to coirferetct. C. C., 2769 (2740); 3 La., 1; 4 La., 465; 6 La., 658; 7 La., 134; 3 R., 10; 6 A., 202; 15 A., 220; 124 La., 300; 12 Ct.App., 126; 3 Pothier Louage § 425.

No one ought to enrich himself at the expense of another. C. C. 1965 (1960).

‘To the same effect is the common law. We read in 15 Am. & Eng. Enc. Law p. 1093 § 10:

"Where a party employed to perform designated vices for another, unintentionally performs such, *W1EIM*e ’ defectively and not in strict accordance with tJUJ.‘SASH of the contract, he cannot recover the reauneratioji; e'tí» pulated for in the contract, because hedías not1' ddne tbat which is to he the consideration for it. .Tet if .the other party derives any benefit from such services the law will imply a promise on hiB part to pay Such an amount as the benefit is reasonably worth, and this amount is recoverable as on' a quantum meruit. This rule is supported by a multitude of authorities and may be considered as well settled, although lt-has been said that courts of eminent authority, both in England and in the United- States, have held that no recovery can be had for labor'furnished under a special contract unless the contract has been performed according to its terms or its performance has been dispensed with by the other party. Such a recovery is permitted because of the hardship resulting to the person.'performing the services in withholding from him all compensation whatever for his work and labor,'when by reason of his failure to perform the stipulations of his contract he can maintain no action upon it, and because of the unquestionable advantage which a contrary rule would give to the party who receives and retains the benefit of his labor, fThe amount recoverable depends upon the extent of the benefit conferred having reference to the contract for the entire work, and this is usually the contract price, less the damages caused by not complying with the exact terms of the contract".

See also 9 C. J., 739 § 78 - id 818 § 155 - id 820 § 157.

The defects in the pavement as set forth by the answer and- those charged ty the testimony are entirely different. According to the answer the materials used in the concrete were not of the quality nor mixed in the proportion mentioned in the contract; according to the testimony it is established beyond a doubt that the materials and the mixture were of first quality and above the ordinary for sidewalk work. The defense is driven to denying that the work was properly done. The plaintiff and his laborer who laid the cement, and the employee of the defendants who superintended all the work done on the theatre -testify that it was a first class job.

The.defendant denounces the pavement along the whole line; he says it was full of holes, honeycombed, cracked, broken, crumbling to pieces, the top rubbing off and the corners falling; the stones sinking and réceding from one another. Hie evident exaggerations weaken his testimony. His expert witness, Tournillon, points out only three defects in the pavement:

lo the presence of a piece of wood and a couple of pieces of shell that had passed through a quarter of ap inch sieve; to this objection the rule de mimimis is applicable; c/r r '/■'i6? ■■

2o hair-cracks on the river side of the these hair-cracks affect only the looks but not the strength of cement; building; but

3o between the old and the new pavement there was an open joint about one quarter of an inch wid*; that might have been caused by the settling of the new or of the old pavement or by both; he could not lay the blame on plaintiff. On the sidewalk a stone laid by plaintiff had settled half an inch.

These defects are so slight in their nature as not to amount to redhibitory vices; they call at best for a diminution of the price. The defendants have used the pavement, and notwithstanding all its defects, they have not deemed it necessary tto make any repairs to it.

As was said in the case of Clark vs. Kemper, 3 R., 10:

"In this case, however, it appears that the owner never had any repairs made, and that he used and sold house; and the evidence, with regard to the real value of the work, is so uncertain and unsatisfactory, that 't is impossible for us to find out what amount should be deducted from the plaintiff's claim, or to say that they are not entitled to the (imount claimed in their petition". 144 La 21

The stone upon the sidewalk for which the plaintiff claims $350, and which has settled one half inch, and the charge of $7.50 for cementing the foundation, which plaintiff's attorney in his argument has abandoned, appear to U3 the only items of which we may relieve the defendants.'

Plaintiff is entitled to a privilege upon the lot and buildings upon which the work was done. C. C., 3249 (3216); 25 A., 518 (520); But the defendants are not liable in solido. 19 Baudry; Lac p. 790 3019; C. C., 2872 (2843), 2093 (2088).

It is therefore ordered that the judgment herein be amended, and that the defendants Solomon Peritz and Joseph' Yochim be condemned jointly to pay to-the plaintiff Charles Babst, Jr. the sum of Two hundred and three dollars with five per cent per annum interest from August 21st, 1917 till paid and all costs of suit in both courts with privilege upon the lot and buildings-at the corner of Robert and Liberty Streets.

May 15th, 1919.


source: Caselaw Access Project

author: Max Dlnkelsplol. Judge.

license: Public Domain

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    GASPARD CUSACHS versus SALMEN BRICK & LUMBER COMPANY, Ltd.
    No. 7551.
   opinion

Max Dlnkelsplol. Judge.

Ihe Issues presented in this sass ara substantially as fel-lews:

Plaintiff assarts that he is tha «raer and actual passessar af a aertain partían af land, together with all the improvements .and appurtananaas theraan, rights, ways, privileges, servitudes and dapandonales tharean belonging ar in any wisa apperatining, situated in tha Parish af St. Tavmany, in this state, designated hy tha Ha. 3 an a sketch paraphed "Ha 7ariatur"by Octave Blanche DerieeeUrt, If at ary af this aity, dated Octaber 14, 1870, said partían af land measuring, mare ar less, 80 shalms an ene sida, 89 cháins an the ether side, and 34 chains an the rear part af said partían af land fronting the Bayau laceaba, the whale aon-talnlng mare ar less 197 superficial aeres, after deduetien out af said partían af land Bat Ha. 3 fifty superfieial aeres which belong er belanged ta Mr. Martin, as per said sketch; that the said grounds.*» filled with shrubbery and fine shade and ornamental traes, and a house whioh petitioner occupies whenever he visits the said land; that an the banks af and facing Bayau laeembe there were growing in a raw and alose together four largo ornamental gum trees, whieh ware pleasing in appearance, which ornamentad the property,- and whieh pratoeted the property from tha overflows af the aforesaid bayau; that he acquired together, with his deceased brother, J.eaehim Cusaehs, from whom plaintiff inherited the property in 1870; that he kept said trees in fine eondltian, and, aside from his attachment resulting therefrom, their beauty and position and natural growth added to the valuó - and attraction af the property; that he intended them as ornaments to the property, intending that they should give an added dignity te -the property whenever he etaupied it and when he huilt anether heme there», as he intends to de.

He alleges farther that en er aheut February 8, 1916, while plaintiff was absent frem the preperty, a party ef men, acting under the erders ef ene E. J. Steekstill, invadethe said greunds ef petitiener and preeeed with axes, saws, er seme such instruments, te eut dewn and destrey the aferesaid trees and tc remote them frem the said preperty, altheugh the said Steekstill and his men were warned then and there by ene of the men in the party that the trees and the property were owned by plaintiff; that the trees were entirely destroyed and remeted, the beauty and symmetry ef the preperty destroyed, and the row of trees taken away; that the action of the said trespassers was wanton, mali-eieus, and a gross tiolation of petitioner's property rights guaranteed by law; that said Steekstill and the men in his charge who did the aforesaid deeds were the servants, agents and employees ef the Salmon Briek & lumber Company, ltd., a corporation organized under the laws ef the State ef Louisiana and demieiled in Hew Orleans, and were at the time of the trespass aferesaid aetually engaged in the service of said"company, and the said company affirms their right se te se, and justifies the said trespass. He elaims further that in order to destrey the said trees said Steekstill and his men invaded petitioner’s preperty without authority frem petitiener and without soliciting leave te de so; that they have thus committed a trespass and Injured petitioner's preperty. He asserts that the mercantile value ef the said trees' was $100.00, and that in addition petitiener is entitled te be compensated for the wanton invasion ef his rights e^> person and of preperty, and he lays and assesses his damage for this at the sum ef $2500.00, alleging that the said Salmon Briek & lumber Company ltd." is therefore Indebted unto petitiener in the full sum ef $2600.00. He finally prays that said company be cited, through its proper officer, and that after «11 due and legal delays he hare and receyer judgment in his faver and against the said Saínen Brick & Lumber Company Ltd* in the full sum ef #2600.00, with S$ interest thereen from judicial demand until paid, for seats, and for all further general and equitable relief, and for sueh orders as the nature ef the case requires.

In due oeurse, and en Oeteber 3, 1916, the Salmen Brick & Lumber Company answered this petition, admitting that plaintiff does own land fronting on Bayou Laeombe, but the extent of which they are not informed. They admit, further, that plaintiff occupied a heuse situated in the Parish ef St. Tammany, en land owned by him, and that said heuse is surreunded by shrubbery shade and ornamental trees. They admit that an the banks ef Bayou Lacombe there were certain gum trees which were cut by the agents of your respondents, but deny that said trees were on plaintiff's land. They deny that the beauty and symmetry of plaintiff's property was destroyed by the cutting of said trees. They deny and assert that me trespass was committed by their agents, as said trees were on property from which respondents had the right to out said trees.. They deny all rights to the property in. question claimed by plaintiff, and pray, finally, that his demand be rejected, aj^his oast.

Some correspondence followed between the parties and, amongst others, there is a letter of date February 16, 1916, addressed by the defendant company to the plaintiff, which substantially admits that his letter of the 14th of the same month and year, with reference to cutting of some gum pine timber was reeeirod; that they had taken this matter up with Mr. Stockstill, who was the foreman at Laeombe, and he states that he cut four gum trees, and throught at the time he was cutting them from the lands ef the IV. W. Carre Lumber Company, he hawing had permission from them to eut gum on their land; that these lands were pointed out to him as the property of said company, through parties re-siling in the neighborhood, one Riee and one Martin, and deny that they out any pino trees or any other trees of any kind or eharaeter off of this property. In concluding their letter, they go on to say: "In your letter you state that you are going to prosecuto us to the full extent of the law for cutting this timber. We do not at all think it necessary to go to court on a littlo matter like this, as it was purely unintentional on our part to cut timber which we had no right to ét, and haring made a mistake in getting on your land, we are willing to pay you for these four gum trees anything that is within reason. We would thank you to let us know how mush you consider these trees worth, and if it does not seem out of reason we will be glad to mail you our cheek for that amount."

In reply to this letter, on February 21, 1916, plaintiff says: "I hare just returned from a trip to laeombe and found your letter. You say in your letter that it was purely unintentional. I went over to laeombe in order to gather evidence, and I have the witnesses that will swear that Mr. Stockstill was told that the property belonged to Mr. Cusaehs. He said it, belonged to Carey, end was told again that it was Cusaehs' property. He then said 'Go ahead and eui if.' For your information now, Carey does not own an inch of land in laeombe, outside of the sawmill property. Surely that way of doing things i9 Tery offensive and deserves to be severely punished, and I don't like to be treated in that way and have to stop that kind of treatment." (Signed by the plaintiff, through his initials, G.C.).

The record abounds with deeds to property on Bayou laeombe from various parties, which need not be here quoted, as we aro not trying title to property in this cause.

Under a commission issued, depositions were taken in the Parish of St. Taumany of John Martin, C. H. Culbertson, Hap®' le@n Silva, Felix Ceusin, Hedar Cousin, Manuel Silva, Pslit® Atlsw and Augustin Sil.

An endeavar to prove title to property by these witnesses was overruled by his Honor, the judge of the oeurt a quo.

Getting down to the questlen of the cutting of trees and trespass, Captain Martin, at page 49 of the transcript, was asked this question:

"Q: What happened to these four gum trees?
"A: I ran down there and saw the trees were ®ut by Mr. Salmen's men working there, and I asked the gentleman in eharge, Mr. Stookstill, and he told me that he had ordered them out and he thought that they were on Mr. Carey's land. I told him no, it was Mr. Cusashs' land, and he says 'That's all right, if they are on Mr. Cusachs' land we will pay for them.' He says 'What are they worth?' and I says 'X don't know; I have no prioe to make on them. '
"3: Bid Mr. Stookstill ask your permission before going an the land?
"A: He, sir. But he did say that some of the men working under him -had informed hissLt was Mr. Cusacks' land, 'but of this he wasn't sure. I
Viere they old trees?
Yes, sir; I suppose they were trees at the stump about 14 06 16 inches; probably more. I cannot say sura. And they were solid trees.

He adds to this: "As a rule gum trees, large ones, are hollow, but medium size trees are solid."

This witness has known this property about 36 or 37 years, and he knew the trees on there about the same length of time. There were no improvements upon the property, except an old stable that had been standing there no telling how long (p.50. Tmaoript). There were no fences around the property at the time the trees were cut. He reported the eutting of th# trees to the plaintiff. He lived close to the property in question - about a mile and a half. There were other trees, either gum or pine, growing all over the bayou. The lands were subject to overflow whenever high water ensued; this occurred three or four times a year, depending on the rains.

C. H. Culbertson testified, on page 58 of the transcript, that'he lives in Laoombe; knows the piece of property in question belongs to plaintiff end has been in the possession of plaintiff about 35 years; it adjoins the property of Mr. Martin. He knew the land; he didn't know particularly of these trees; he never saw them out; knew nothing about the» (transcript p. 59); never heard of anybody else owning the property save and except plaintiff; Captain Martin had charge of the property for plaintiff; plaintiff never lived on that particular property, he lived in Bayou laeombe, about a mile and a half from the hotel.

Napoleon Silva's testimony appears op page 63 of the transcript. He hauls wood and logs, cuts wood; he knew the property in question and that plaintiff always owned it; he has known that twenty-five or thirty years; was born in that particular place; is 44 years of age; he was not present when the trees in question were out; he presumed they belonged to the plaintiff, those that were cut.

Felix Cousin testifies at page 66 of the transcript. He has lived in that part of the country all his life, and he was then 39 years old; knows that the property in question always belonged to the plaintiff; he had cut timber from the adjoining property of a Er. Todd, - adjoining plaintiff's property, That was about all that lie knew, so far as this ease is concerned.

Medar Cousin's testimony is to be found at page 68 of the record. He substantially testifies that plaintiff had owned the property in question as long as he can remember; he is about 46 years of age; he had also cut logs from Todd's place, adjoining plaintiff's.

Manuel Silva, at page 69 of the transcript, testifies that he is 35 years of age; knows the property at white'e landing belongs to plaintiff, he, plaintiff, claiming it all the time; Knows about the gum trees that were «ut on that property; that Mr. Stoekstill out then and loaded them ®n the harge; that he was loading the barge for Stoekstill; was present when the trees were out; they were on the west side of the bayou, right on the banks of the bayou, at some four or five hundred feet from Yihite' s landing.

"Q: Rid you hear anything said, or did you say anything to Kr. Steekstill, when they were out?
"A: Ho, sir. Captain Martin came over there and asked him who authorized him to out the trees, and Mr. Stoekstill said he was cutting them on Salmen's land. Captain Karyin told him that the property belonged to plaintiff, and his answer was he was going to out them anyway. He out them and loaded them and took them away. They were loaded on Salmen Company's barge.

On cross-examination, he stated:

"Q: Are there any trees around where these four gum trees were out?
"A: Yes, quite a few black gum trees.

He had frequently seen the land there overflow, and that was the fact while these trees were there; the water at times was 6 or 7 feet deep; it was northeast, towards the Martin place.

Helite Atlow. page 72 of the transcript, testified that he was 62 years of age; bred and born in that part of the country; knows all about it; he had been running schooners; got his sand off of the place, which always belonged to plaintiff.

Augustin Sil, whose testimony is found at page 74 of the transcript, testifies that he knows that the property in question is the property of plaintiff; has known it thus for 25 years; had chopped wood for plaintiff off the place.

The transcript, at page 77, gires the testimony of plaintiff before the court, and, after stating other things, ho says that he lires off of the income of his revenues; that he is president of the Louisiana Historical. Society, and one of the curators •£ the State Museum; that "between him and )iis brother they owned the property in question all their liras; that some of it he bought, and his brother had bought the property in question some 37 years at the time of this suit; his brother formerly used to make cord-wood on the place, cut logs, sell sand off the sand-banks to schooners coming there; the trees in o.uestion that were cut were situated near the south corner of the property belonging to the turpentine factory and known as the turpentine property; had physical possession of same; it has been enclosed with a fence since this litigation .began; the stable was about 200 feet, approximately; all the ground is the sane, approximately, in the Parish of St. Tammany, and surrounded with all sorts of trees on the bank of the bayou — a number of trees, gum trees; the bayou has a sloping bank; the roots helped to hold the bank up in high water and in rainy weather; has some teams of oxen there, - cows; newer wanted to destroy any of the trees en the banks of the bayou, because he wanted to build on there a home for himself in his future days and wanted to establish a stock farm.

Page 79:

"Q: Bid the trees have any particular value ipther than the commercial value?
"A: They had the value that I always refused to- get money from them. There is no money value; it is sentimental. I have always refused to out any timber on that land."

' Amused himself frequently by fishing under the trees, hunting; they were small gum trees; gum trees, as a rule, are all hollow, but those were solid and had beautiful leaves and limbs, and viere very nice trees; he had known these trees ever since he had been going there, about 37 years; never gave anybody any permission to out them; discovered they were cut three or four days after it had been done.

At page 82, the witness goes on to state that this vas praotioally a virgin forest; traes had never toen out or turpentined; everything in that neighborhood had heen turpentined ezeept on his property.

On cross-examination, he stated that neither he nor his deceased brother had ever lived on that particular piece of land; they lived a nils and a half er two Biles in the village; the land in question is the sane as other lands in St. Tammany Parish, and In that particular section of the eeuntry there are a great nany trees of a slnllar kind; they are always green; the- stock that is kept there keeps very well, always in first-elass eonditlon. He says it is net subject te everflew - only heavy rains will sever that portion; senetlnes water stands there for two days; land never overflows.

At page 86:

"ft: Those gum trees, were they different fren other gum trees that grew along the swamps or shore -of Bayou laoombe?
"A: The sane thing.
"ft: There are millions of them in that soetion of the eeuntry, along the waterways?
"A: There are a groat many.
"ft: How do you figure the commercial value of these trees at $80.00 er $86.00?
"A: X, like the Salmon lumber Company, put my own valuation on my property. If I trespassed on their property you would see what their trees are worth."

Further testifying, he said that the sentimental value is thousands of dollars, but the oommeroial value should be about $80.00 er $86.00, because the trees were solid, and if cut by the Salmon lumber Company it was simply for the reason they wanted to use them for rollers or something else, as those trees were solid and gum trees are not usually solid; the lumber company in cutting the trees had a purpose and they needed it; if there were thausands like that they would not need to come to his place, because they owned thousands of acres of land; the trees in question were about 16 lnehes at the big end.

"ft: pan you giro us any reasan why yen said they «ere werth a heat $80.00 er $25.00?
"A: Veil, it Is simply my estimation ef It. I «as effered te sell, they «anted te hay then, - the hex faetery in laceaba had effered te buy all the gun trees I had, and I hare always refused."

E. J. Stockstill testifies at page 91, and says that he is the nan «he eat the gun trees that this salt is abeut; «as employed by the defendant eeapany; «as loading pine piling en barges in Bayeu laceaba and he had erders fer fear pieces ef gaa 10 inches in disaster, 20 feet leng, te be leaded en with the pine piling; had finished his leading, get the barge leaded as high as he «anted, and mentioned te a party working with hla abeat getting fear peles te send in with that lead; the nan in question, ene "Back” Blee, «as helping hla te lead the piles that were cut en the «eat side ef the bayeu, and he asked this aan «hese land it «as, and his reply «as that it «as tinber that belonged te Saínen ¡c Keller; and that Rice subsequently stated that the land belonged te Henry Keller; the tlnbers eat «ere 20 feet leng by 10 inches, possibly net acre than 9. Speaking ef the tsIuc fp.92), he says that he was offered the same character ef poles fer 25 cents apiece. He further says that there is no market for that chataeter of lumber. Had been getting timber around St. Tammany Parish 20 er 25 years; in fact, it had been his business all his life.

"ft: Hhat is the character ef the land e'n the edge ef the rirer, «here yea eat the gums?
"A: It is lew, boggy, wet land; gum swamp."

At the time ef the euttlng there was about a foot of water; is rery familiar with that portion ef Bayeu Xacembe; had been there frequently; the water frequently gets fife er six feet deep, right at the point.

"ft: Has there any difference between this gum swamp where these trees were cut and any other gum swamp around the banks of Bayeu Xacembe?
"A: Ho, sir; just an ordinary gum swamp.

There were quite a number of them all through the bayou; a great many scrub top oaks, but most of them were -little gums.

At page 94 of the transcript:

"Q: Bid yea knew this man Margin, who mas in charge •f Ur. Cusaehs' property?
"A: Yes, sir.
"Q: He didn't eome to you at the time you out them, or immediately afterwards?
"Q:Bid he came to you and speak to you about outting these gum trees?
"A: Yes, sir, abeut a week after X out them.
"A: He oame to me when I was loading my next barge. I sent that barge abeut five or six days later, after I had out the trees.
"Q: Was this the first time he spoke to you about the trees?
"A: That is the first time I ever saw him to know him. He introduced himself to me.
"Q: Bid you eYer know that Mr. Cusaehs, the plaintiff, owned or ever olaimed to own any land there on the bayou?
"A: On the bayou, no, sir."

At page 97, on cross-examination:

"ft: How, if there is testimony in this record to the effect that you were told at the time you out the trees that thetá were Mr. Cusaehs' trees, and you said 'To hell with Cusaehs; go ahead and out them'; Would you deny that?
"A: Yes, sir. Mr. Cusaehs' name wasn't mentioned at all. If it was, I have no recollection. I don't think anybody said it was Mr. Cusaehs' land."

Henry Keller, page 101 of the transcript, testified:

"ft: Be you own any of that land in there, aside from Section 42?
"A: I own lot 2/ lying .on the south of Cusaehs' property.' I own land there. I am more familiar with that than I am With the- map now being shewn mo."

Has known the property for SO years; the trees were out an land low, flat, swampy; generally overflows. The water there gets 7 or 8 feet deep, at times.

"Q: Bo you know anything about the value of these gum trees that were out?
"A: I don't know anything about the value of them, but I know about the value of gum trees.
"ft: That is what we want to get at, what you know about it. ' .
"A: The value of those trees, according to my Judgment , would not be over'BO cents apiece, at the outside, (p.104).

J. W. Magee's testimony is found at page 104 ef the transeript. He lires at Bayeu laeenbe; teens the land in question adjoins Henry Zeller's land; knew it ae the Martin Tract; lired in that section ef the country about 45 years; was born there; is 56 years ef age; has been on the land frequently; saw the evidence, - stumps were lying on the ground where the trees had been eut.

At page 106 ef the transeript:

"0: What, in your opinion, was the ralue ef these gun trees?
"A: The ralue ef these, I don't knew. I think 60 cents apiece weuld be a fair price for then.
"Q: Will you state whether er net there was any market for timber ef that kind in that section ef the country?
"A: If there is I hare nerer found it. I hare a good many en ay land and nerer found a market for it.
"0: Where is your place, compared with the Cuaaehs’ property, - hew for?
"A: It is probably a mile seuth, next te the depot, the railroad. Tossir, it fronts on the bayen. Quit: a number ef gum trees.
"Q: What weuld you sell then for?
"A: If I eeuld get rid ef them at a quarter apiece I would be glad te get then off ef ny land. But I hare in.the pasture there sene I weuld like te get rid ef, te clear Iff far the hog pasture.
"Q: Shat is the character ef this land where Mr. Cusashs elaina the trees were eut, - high er lew?
"A: lew. Right an the edge ef the bayeu.
"Q: Bees it ererflew, er net?
"A: Tes, sir, it ererflews. I hare seen 7 feet ef water right where these trees were eut, at least 7 feet, in high water. Banning legs there.

He gees en te testify that Bayeu laeenbe ererflews at this ppint two or three tines a year, whenerer a heary rain falls; that he has run legs there as many as four er fire times during the year from high water.

"Q: Will feu state whether er net the sitting ef these trees fren Kir. Ousaehs' land was any detrlnent to his land, or injury te his land?
"A: I couldn't see there weuld he anf great benefit te it, these little gum trees.
"Q: Were these the enlf gum trees growing in that portion ef his land, er were there ethers there?
"A:There were ethers there.
"Q: A few, er many?
"A: A good many”

I. F. Hila». another Yiitness for defendant, at page 109, tastlflaa that he is an employee of the defendant company; general superintendent;knew the Cusaohs property on Bayou Xaeomhe and other lands in the vicinity; says it is low, swampy land, subject to overflow; the trees on that land, the stumps are about 12 or 13 inohes in diameter; the tap looked to be about 10 inohes; some of the tops are laying there yet. Speaking of the value of the trees, he testifies that §1.60 a thousand feet would be about the stumpage value of them, and it would take to make a-thousand feet of these trees probably at least twenty.

Howard Burns, at page 113, says that he was the Parish Surveyor of the Parish of St. Tammany, and has been such since 1906; is familiar with that section of land, surveyed it, and goes on to desoribe it. It is useless to give his testimony in full, or to quote much from it, because it is entirely with reference to the measurements of the land in question and has no connection with the cutting of the trees claimed by plaintiff in this cause.

The plaintiff, being recalled in rebuttal, at page 123 of the transcript, amongst other things testified that shortly before the trial of this case he had gone over this property, and says:

"The land is am high as it is anywhere else, much higher. It is a levee; it is rolling; it never overflows; but nearing the bayou there is a slope of about seven feet; all that covered with green grass and trees, very thickly covered with trees."

And at page 127, he goes on to say:

"My property is covered with trees, not thickly, but covered with good size trees, and it is all there on the bank, in the rear, all over. You can pass in there. Some of It is pretty thiak. And the other property, that piece and the Keller, has had all the timber out on it, and before the timber was out on it it was turpentined. So you esn see by going over the place the marks of turpentined stumpB and trees, and on my side you see nothing of that."

Arising from full consideration of all the testimony taken, both by deposition and orally before the judge a quo, we conclude » that the facts preeminent in this case have no earthly connection with the case referred to of Tissot et al. v. Great Southern Telegraph Co., to be found in record Ko. 18,951 of the docket of the Civil District Court, and subsequently on appeal to the Supreme Court found in the 39 An. 996, being a suit for $2500.00 damages for trespass on plaintiffs' premises, injury done to valuable trees thereon, eto., by employees of the Telegraph Company, defendant in that suit, whose action is characterized as wanton, malicious, and violative of the rights of petitioners (see p. 998).

That was property situated on the Bayou St. John, a magnificent residence belonging to the plaintiffs, and defendant, without notice of any kind, in order to construct a fire alarm telegraph over a designated route, there being’ trees on that route, the limbs cut off were an impediment to the execution of the contract, defendant claiming that no more limbs were cut than was necessary, claimed want of malice, and that only actual and compensatory damages were due, if any. The court goes on to say that the acts complained of were consummated whilst the plaintiffs were away from the state, keeping a female servant an the place and occasionally a gardener; that there was ne authority ■ from the oeeupants or the owners, and keepers were kept for the protection and not for the destruction of the property in question. And it was evident, says the court, at page 1004, that plaintiffs sustained Injury in the wanton invasion of their premises, in the unjustified destruction of their property, in the deprivation of material, physical and moral enjoyment, in the endurance of aggrieved feelings, and in the apprehension of a possible irremediable wrong, for all of which they are entitled to compensatory damages. The court goes on to cite R. C. C. 1928. At page 1005 the court cites R.C.C.1934, 4 An. 440, and 10 An. 33, to the effeot: "The Sods provides that in eases of unlawful deprivation/ of some legitimate gratification, although the same are not appreciated in money, yet damages are due."

That case and this differ so materially, insofar as the facts are concerned, that, in our opinion, they are not comparable at all and have no application to the present case.

In the case of Gardere v. Blanton, et al., 35 La. An., 811, the syllabus reads:

"When the trespass is not wilful, but the result of mere inadvertence, the value of the timber when first cut is the measure of damages."

In the case of Zagame v. Chalmette Laundry Co., 142 La., 251, the court gave the nature of the action as follows:

"Plaintiff alleges that she rented a certain lot belonging to her in the City of Hew Orleans to the defendant for a rental of $5.00 per month, the lease to continue for one year. She also alleges that during the pendency of the lease the defendant destroyed a stable and concrete floor on the lot worth $176.00, for which she claims damages in the sum of $175.00. She makes a further claim for $2500.00 based on an'alleged invasion of the property by the lessee during the pen-dency of the lease, and for a trespass thereupon, referring to the alleged destruction of the stable and conarete. floor referred to above. Defendant excepted to the petition on the grounds that it disclosed no cause'of action, and that the demand was premature.
"The claim for $2500.00 damages, baBed upon an alleged trespass upon an invasion of the property by the tenant leased by it from the plaintiff, is se greatly inflated and unreasonable that the court will take cognizance thereof and transfer this appeal, as the claim must necessarily be for less than $2,000.00 and this court is without Jurisdiction."

We are convinced that plaintiff's idea in reference to his valuation of the property herein before described is absolutely beyond even what the most reasonable of men have a right to Judge or estimate values of the kind in question. Besides, we are further convinced that there was no willful violation •f any of plaintiff's property rights, o.e wall**, either on the part of the agent Stockstill, muoh less that of the defendant herein. That faet is proven hy the testimony of all the witnesses for the defendant in this ease, as well as hy the deserlption ef the property olaiaod hy the plaintiff. Situated as it was, on Bayou laoombo,- whieh, after rainy seasons has been shown to continually overflow just where these trees were located, and at ether points all along the hayou, there oould not have been, under any oiroumstances, any character of value, no matter how deeply plaintiff may have felt the loss of the trees in question, as put hy him. But, as stated at the outset of this ease, we are not trying the title to the property in question.

From all that has been testified to, we are satisfied that these trees were out and the property entered without permission of the owner; and that being the case, whether nalioe was intended or not, the law holds the defendant' liable for some damages for the unlawful entry and cutting of the trees in question, and we fix that now at the sum of §50.00. As to the value of the trees, the judge a quo, after hearing of the testimony in the ease, has come to the conclusion that the highest value for them would be 50 oents apiece, - four of them §2.00, which judgment we think absolutely correct.

It is therefore ordered, adjudged and decreed that the Judg-amended ment of the court a quo be amintairaá by adding §50.00 to the §2.00 judgment heretofore rendered in this cause in behalf of plaintiff, Gaspard Cusachs, and against the Salmen Briok & lumber Company, ltd., making the judgment §52.00, and with costs in both courts. As thus amended, the judgment is affirmed.


author: Max Pinkelsplel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    S. F. BOWSER COMPANY, INC. versus GEORGE WAMBSGANS
    No. 7552.
   £11110|

Max Pinkelsplel. Judge.

Plaintiff sues defendant under a contract of sale of a gasoLene tank and equipment, the agreed price being $394.50, of which the defendant paid the sum of $39.45. Plaintiff alleges that it 1188 fulfilled all the obligations imposed by law upon it under said contract, and shipped and delivered to the defendant the said tank and equipment, and stood ready and still stands ready and willing to install same, as agreed, and has tendered and herewith tenders the installation thereof; that notwithstanding this, defendant has declined to accept said tank and equipment, or to receive the installation thereof, or to pay for same, in accordance with the terms of said oontraet and said notes; that defendant failed to pay the installment which became due on February 3, 1918, and has paid no other installments than the $39.45 credited to him. • Plaintiff also claims interest at per annum, and 10JÓ attorneys' fees on the amount of the balance and interest thereon, and prays for Judgment in accordance therewith.

The defendant first sat up no legal right or cause of action; that the document sued on does not serve for the basis of a Judgment against him; and, answering subsequently, he denied the legal construction placed upon the contract. He admits paying to plaintiff $39.45, but avers that said payment is to be governed by the express terms and conditions of the contract; avers that the contract forming the basis of the suit does not evidence a sale between the parties; that under its express provisions no title was to pass; no delivery was ever made or contemplated, except under certain conditions contained in said contract, and the said contract contemplated an installation of a certain gasolene machine or pump by the plaintiff, and evidences an obligation to do or not to do, and for the violation of which either party would he entitled to such damages only as were fixed hy the written contract; that there was a certain clause inserted in said contract which reserved the right of ownership in plaintiff to reclaim.the gasolene machine without due process of law, and to forfeit as liquidated damages such payments as may have been made. He denies that any delivery, real or contemplated, was ever made; denies that plaintiff is entitled to the remedy of specific performance under the contract,- or under the subsequent transaction and convention.

Defendant, further answering, says that he sold out his place of business, which fact was well known to the agent of plaintiff, and it was agreed that -the gasolene machine would not be installed but that the agent would do his utmost to dispose of said machine, and denies that any effort was ever made by plaintiff or his agent to install said outfit at any time after its arrival. Therefore he prays for Judgment.

The contract in question is in writing and, amongst other •clauses, we find this;

"Terms: In consideration of the shipment of the above listed goods, the undersigned agrees to pay S. F. Bowser Company,'Inc. the above named amount, $394.50, same being price of said goods,as follows: Cash.with order $39.45, and the balance of $355.05 payable as evidenoed by promissory notes with interest attached thereto, which said note is given as evidence of said indebtedness and not in payment thereof."

This agreement was signed by plaintiff's agent and the defendant, and notes given in accordance with the terms of said contract.

From the evidence filed in this case we find that plaintiff's agent, Edward F. Dolan, testified as follows:

You took this particular order?
. Yes, sir.
Do you know whether or not the goods called for in this order were shipped and delivered to the defendant?
Yes. They were at his place. , That is the place he had on St. Claude Avenue.
Are they in his possession at the presentidme?
Yes, they are. When the goods arrived there was son* question about Hr. Wambsgans selling oat and he asked me to hold off the installation, and he asked 6e' to make' a request of the City Council for the right to Install it on the sidewalk, and the oounoll granted a special permit to Ur. Vamhsgans to install*
ft: I .understand that this is one of those -gasolene filling stations that sets on'the sidewalk; is that oorreot?
A: Tes; and they had a permit passed through the council to allow him to do that.
ft And you say that the installation was withheld at his request?
A Tes. He said that he was hanking., on selling out to a number of parties, and he asked me to hold off. I said 'All right; we aré ready, as soon as you are/
ft; Were you ready to install the apparatus, at any time?
A; Tes, sirw
ft; And the machine is in his possession?
A: Tes, sir.
ft; The agreement or oontraot has not been cancelled, in any way?
A: Ho, sir.

By the Court:

ft; Has he ever called upon you to Install that apparatus according to the contract?
A: Ho, sir. He sold the business out.
ft; Have any further payments been made beyond the §39.46 which was paid cash?
A: Ho, sir.w

The defendant, Wambsgans, and his wife both testified in this case, and, in accordance with their testimony, we are satisfied that the facts sworn to by Ur. Dolan are absolutely true and without contradiction, and, without going into the details of the testimony - for which there is no necessity - we consider that the plaintiff has fully made out its case.

The law ou this subject is to be found in our Civil Code. Article 2466 provides:

"Sale Complete when Agreement to Buy and Sell Perfect. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soonf as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the prioe paid." (Quoting numerous authorities).

Again, we find in Article 2467 of the Civil Code, in speaking of sales:

"The sale may be made purely and simply, or under a condition either Suspensive or restlutive. The object of the sale may also be two or more alternative things." (Authorities).

1919.

Article 2464 C.C. provides:

"The price of the sale must he certain, that is to say, fixed and determined hy the parties." (Authorities).

The leatned counsel for the defendant in this case refers to the case of Hypolite Larousini v. Philip Werlein. 48 An., 13. Quoting from the syllabus:

"Ho cause of action - If there was a contract as alleged, plaintiff had no cause of action to compel the defendant to sign a deed of lease and accompanying notes."

This cause does not in any manner come under the facts and obligations in this case, and therefore, does not apply.

The other case cited by counsel is in the 49th Annual, at page 666, “ Mirandona v. Nicholas Burg. The syllabus in that case reads:

"The specific performance of a contract will not be ordered, when compensation can be made in damages. Hor will it' be decreed when the contract requires the doing of an act solely within the volition of the obligor, such as the signing of. a lease or the appointing of an arbitrator or the exercise of an option to purchase property."

We consider that there is no applicability between the case at bar and the cases cited. The law is unambiguous and plain. The consideration in this case, acknowledged both by the act of Sale .and the notes in question, is the voluntary act of the defendant, for which he is bound in morals and in law.

Judgment affirmed.

Hew Orleans,


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    ABE BURGLASS VS. DOLLY BOYD & al.
    No. 7556.
    June 5th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for rent'. The defense is that the defendant, the lessee, with the knowledge of the plaintiff, the lessor, rented the leased premises for the purpose of running a house of ill-fame - and did run such a house with 'plaintiff’s knowledge,

The plaintiff alleged that by an act under private "signature dated July 20th, 1917, he did, through his agent, Henry Gustner, lease to^Miss^Dolly Boyd the dwelling No. 1410 Canal Street for the term of 14 months commencing August 1st, 1917 and ending September 30th, 1918 at the rate of $100 per month payable in advance on the first day of each month evidenced by 14 rent notes made by the lessee to the order of herself; the rent for the whole unexpired term to become due should the lessee fail to pay at maturity; that the rent note due September 1st, 1917 had not been paid; that the defendant, without his consent, had moved the contents of the leased premises lio 1027 Bienville Street. He prayed for a provisional seizure and for judgment for $1300 with lessor's privilege.

The defendant admitted the lease and the failure to pay the notes, but denied any indebtedness or that she had moved without plaintiff's consent. She further averred that the lease sued on was illegal, null and void, for the reason that the premises were rented to the defendant for the purpose of carrying on a house of prostitution out of the restricted district in violation of law and good morals, and that on August 25th, 1917, she was notified by the Mayor of New Orleans to remove from said premises within five days; that she did so remove and notified the plaintiff who accepted the keys and resumed possession of the property. Therefore she prayed for judgment in her favor rejecting plaintiff's demand and settirg aside the provisional seizure.

There was judgnent in favor of the defendant rejecting plaintiff's demand, and he has appealed.

From the character of the defense it is necessary that it he established by evidence so complete as to "force itself upon the conviction with-all the power of demonstration". 20 A., 1 (13), 47; 10 A., 199; 6 A., 317 (320); 27 A., 314.

The burden of prod'f is upon the defendant. 20 A., 47; 19 L. R. A., 662 (665).

The jurisprudence upon the question involved in this case has been vacillating in this State and elsewhere since ' the beginning.

In Kathman vs. Walters, 22 A., 54, the Supreme Court decided that the hiring of a house to be used as a brothel was reprobated by law and could give rise to no cause of action. The decision was based upon no authority and two judges were absent.

But in Lyman vs. Townsend, 24 A., 625, the lease of a house- for the'- same purpose within certain limits authorized by law was declared valid. In that case Kathman vs. Walters, 22 A., 54 was overruled. See p. 627; 30 Dalloz Rep. Leg. 284 § 50.

Following the Lyman case the Supreme Court decided that the vendor of furniture could recover the price of it, although he knew at the time of the sale that it was to furnish a house of ill fame. Hubbard vs. Moore, 24 A., 591; 25 A., 78; Sampson vs. Townsend; and 26 A., 108, Mahood vs. Tealza; 39 L. R. A. (N.S.) 1106.

But in Campbell vs. Gullo, 142 La., 1082 (1084), it was declared that the lease of a house to be used for purposes of 'prostitution could not be enforced although the house was situated within "the restricted district of the City"; and the court said that it could "not agree with, the decision in Lyman vs. Townsend, 24 A., 625". The Court quoted American and French Authorities. Also 2 Elliott on Contractas § 739, 740, 745, 754, p. 92; 30 Dalloz Rep. Leg. p. 284 § 48.50; 1 Trop Louage § 302; 1 Guillonard p. 85 § 72, 197; 10 Dalloz Rep. Leg. Supp. p. 132 § 32; 3 Duvergier p. 57 § 58, 62; and in England, 16 R. C. L. p. 5736 48; 1 Story Equity § 298. 2 Merlin 328 IV

There are many respectable authorities opposed to the views expressed in that case.

But under what conditions an4 circumstances is the n lease null.

The. authorities are not in harmony as to the rule which renders a contract void when it is entered into by one of the parties with intent to violate the law, and whan such intent is known by the other party. 19 L. R. A., 664.

Some authorities hold that mere knowledge on the part of a lessor that the lessee intends to use the demised premises in violation of law is not sufficient to render the lease void; in order to have such effect, there must have bden some active participation on t'he part of the lessor in the illega.1 purpose, and some profit derived directly from the illicit occupation. 19 L. R. A., 663 note; 39 L. R. A. (N.S.) 1104, 1107; 9 Cyc 571; 24 A., 591, 16 R. C. L., 573 § 48.

Or at leasíythe mere fear or suspicion on the part of the lessor that the lessee intended to violate the law would not be sufficient to debar his recovery. 19 L.R.A., (N.S.) 663.

On the other hand, the greater number of authorities, and those which we bel'ieve it behooves judges to follov^maintain the doctrine that no action arises from a contract of lease when the lessor was aware at the time it was made that the leased premises were to be used for a purpose forbidden by law and whan the premises were so used subsequently. C. C. 1893, 1895; C. P., 19; C. N., 1131, 1133; 18 Am. & Eng. Enc. Law p. 316, 379; 19 L. R. A.(N.S.) 663 note; 12 Fed. Cases No. 6629; 2 Cranch C. C., 161; 16 Ruling Case Law p. 570 § 45 et seq; 39 L.R.A.,(N.S) 1104; 2 Elliott on Contracts p. 92 § 745, 754; 13 C. J. p. 460 § 402.

All are agreed, however, that to render the contract void, knowledge of the illegal purpose must be brought home to the lessor. 30 Dalloz Rep. Leg. 284 § 49; 3 Duvergier p. 59; 3 Pothier Louage p. 241 § 24.

It is established, asr conclusitrely as such an occult and mystic fact can be, that the defendant ran an immoral house in the premises rented by her.

Was the plaintiff aware at the time he consented to the lease that the defendant intended to run such an institution? We have concluded from the evidence that he was so aware, and we have arrived at that conclusion from the following established facts:-

Prior to renting the house 1410 Canal the defendant occupied the premises 1027 Bienville, where she had kept an assignation house for more than five years; plaintiff had visited her there "with the other boys", and he was aware of the character of the defendant and of the house she képt; at the time of making the lease, the plaintiff was in New York but was represented here by an agent; the defendant in an automobile with a female companion called in person upon the agent for the purpose of renting the house; she informed him that she was.then occupying the house 1027 Bienville Street; she inquired of him who lived across the hall, and what kind of a woman she was, and whether she would have any trouble with her, and the agent answered that she was a Kiss Rose _^and that she was all right, that she was "a pretty good scout"; they could not agree upon the price as the defendant asked for a reduction; the agent then^through a cler^telegraphed to the plaintiff that defendant, Dolly Boyd, naming her, desired to rent the house, but wanted a reduction; he communicated v/ith plaintiff first by telegraph and then the second time by night letter; the plaintiff answered that the defendant could have the house on a lease with notes endorsed; he had no endorsers on any other tenants; the lease and notes were signed by the defendant with a surety who is represented as keeper of a barroom at the corner of Rampart and Iberville; and the defendant moved into the premises some time in July; on August 26th, 1917, she received an officia.1 notice from the Mayor that it had come to his knowledge that the house occupied by her was of the reprobated character denounced by City Oridnance Ho. 6701 H. C. S. and that she would have to move within five days; she called on plaintiff regarding'this notice and showed it to him, and told him she would vacate; and he said nothing to her^ she vacated on August 31 and took her •furniture back to 1037 Bienvill^jjíplaintiff filed this suit on «September 12th* and provisionally seized defendant's furniture Son.Bienville Street.

We have abstained from quoting defendant's testimony bhich is much stronger in her favor. We have judged the plaintiff from his own lips and those of his agent.

Section 1 of Ordinance No. 6701 N. C. S. adopted August ^¡2d, 1910 prescribes the limits of the restricted district, and ^Section 2 makes it unlawful for any person to rent any house to ^lewd woman outside of those limits.

Article C. C., 1895 (1889) says that the cause of a contract is unlawful when it is forbidden- by law.

The property 1410 Canal was out of the District, it was uch too large to house "Miss" Dolly Boyd as she was described ^in the lease; her title indicated that she was not a "lady of $family" as plaintiff says he thought; she could only intend the property as a lodging house; and her past occupatibn gave the assurance that she would continue in the same line of business; plaintiff knew who she was; and her residence at 1027 Bienville informed his agent of the same fact; she was requirgd to give security, although she was to bring her furniture in the premises, when plaintiff did not require security of any other tenant; when the defendant showed the plaintiff her official notice to-vacate, he expressed neither surprise nor indignation, and said nothing; he allowed the defendant to move away her furniture, and it was only twelve days afterwards that he filed the suit against her; neither the telegram nor the night letter is produced, nor is the clerk who sent them examined, nor is the plaintiff's answer to them--filed, nojrJ¿her¡^absence accounted for. The plaintiff and his agent^are^reticent in their testimony,and deny facts otherwise well established. The District Judge believed that both the plaintiff and his agent knew who the defendant was and what would be her occupat in those premises. We cannot say that he erred.

His judgment is therefore affirmed.

June 5th, 1919.


author: Ey his Honor John St. Paul.

text:
    NO. 7557.
    INTERSTATE TRUST & BANKING CO VS GERLANDO ALFANO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

Ey his Honor John St. Paul.

Tho defendant, appellee here, moves to dismiss this appeal ,under the following circumstances;

\ On October 4th, 1917 plaintiff sued defendant for §1665 ffiSÍíging that defendant had illegally collected certain rent, to wit, rent for the months of January 1914 to January 1917 both inclusive (say 25 months at j;45 por month); same having been paid to defendant by one Henry Capus for tho use of certain premises which plaintiff had caused to be seized for debt by tbe Civil Sheriff, and which were then under seizure as the property of the Succession of Joseph Franck; all of which rent plaintiff claims should have been paid to the sheriff and. applied towards the' discharge of its writ, upon which there still remains due an amount'Mn excess of tho claim herein made.

Defendant filed a plea of prescription of one year.

On January 24th 1913 the trial judge maintained, the plea of prescription as to all the claim for rents prior to the month of October 1910 and rejected, plaintiffs demand as to previous months, limiting plaintiffs claim to the months of October, November and. December 1910 and January 1917; and said judgment was signed on January SOth 1913.

Thereafter defendant answered denying liability for the rent for October, November and December 1916 and January 1917; but lie declined to answer as to the rent for tho prior months o ; the ground that by the judgment aforesaid same had been eli ii oated from the caso and v/as no longer an issue therein.

There was no further action in the case until January 29th 1919. On that day plaintiff discontinued, waived and abandoned its claim for the months of October, November and December 1910 and January 1917, reserving however its right of appeal from the judgment aforesaid* which had been rendered on January 24th 1913 and signed on January 20th 1918.

XX

Ihe motion to ¿lamias ia baaed up'ü the ground th^t^the judgment was not final; that hding interlocutory it he e de a^algniag; and more than one year had elapsed since the rendition thereof when the appeal was taken.

III.

It must he oonceeded that under the jurisprudence the judgment appealed from was not final when rendered, because it did not then dispose of all the issues in the case. Harris vs Stocket, 35 An 387; State ex rel Pflug vs Judge, 35 An 765; Bossier's Heirs vs Hollingsworth & Jackson, 117 La 221.

But it is only in that respect that the judgment was not final, to wit, because it then left other iBauea still to be decided. Otherwise the judgment had the fora and substance of a final judgment.

How it is manifest that the only reason why an appeal is not allowed from a judgment which though final in form and substance as far as it goes, yet does not dispose of all the isuues in the case, is the inconvenience of having numeious appeals in the same case as well as the irregularity involved in splitting up a case so as to have some issue? already pending on appeal whilst other issues are still pending in the trial court. See 117 La 221 (226)

But it must be borne in mind that the right to h- e a preliminary or interlocutory judgment reviewed on appeal at some time or pother exists unimpaired and is only suspended until spch judgnent becomes final by being merged into the last judgment, the one fi whicji disposes of all the issues involved. 117 La 221

Hence where all p ssibility of the inconvenience and irregularity aforesaid ceases, the r-le founded therein must also cease. Oessante ral i one legl3. cessat insa lex.

file essential feature of the whole matter seems therefore to be whether or not, when the appeal is taken,\ the whole case has been finally disposed of in the court below; and it seems to w. that it is ;iuito immaterial under the circumstañeos,whether tliis bo the result o'." a subgeqlient judgment. by tho- court, or be brought about by the act of the parties or either of. them.

April 1919

i'or, turn it and twist it aa you will, the fact remains that tho case then stands with a judgment which effectingly and forever disposes of certain controversies between the parties, and does so adversely to the interests of one of them.

We aro therefore of opinion that where a judgment has the form fl£*)siibstance of a final judgment and is unappealable only because it does not dispose of all the issues in the ease, suoh judgment beuomos final and appealable whenever all the other issues are «. disposed of or eliminated- from the ease whether by action of the court of the partios.

iVe think the judgment appealed from became final and appealhble v/hen plaintiff discontinued its demand for the balance of its claim not previously rejected. By that fact tho judgment then'became the last and only judgment which could be rendered in the case and disposed of all the issues therein. 117 Ig, 221. í‘

/ The motion to dismiss is therefore denied.

Wow Orleans, la,


author: Max Dinkelspiel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    INTERSTATE TRUST & BANKING CO. versus GERLANDO ALFANO.
    No. 7557.
   Of IHIOI

Max Dinkelspiel. Judge.

The facts in this suit are substantially as follows:

The Interestate Trust and Banking Company, located and doing business in Hew Orleans, complalnsthat defendant, Alfano, owes it the sum of $1665.00, with legal interest on $45.00 thereof from the 1st day of January, 1914, and like interest on a like amount thereof from the 1st day of each sucoeeeding month up to and including the 1st of February, 1917, for tvis:

That on or about the 3rd of December, 1913, petitioner caused to be seized, through the civil sheriff of this parish, certain real estate under executory process in the suit entitled Interstate Trust & Banking Company vs. The Succession of Joseph Franek, and the property described in said suit was situated on St. Ann, Dumaine, Royal and Bourbon Streets, forming the corner of Bourbon and St. Ann Streets, and that at the time of said seizure the property in question was under a verbal lease by one Henry Capus, a son-in-law of defendant, at a monthly rental of $45.00 a month, payable at the - end of each 1 month.
Plaintiff alleges farther that the civil sheriff caused a notice of the said seizure to be recorded in the Mortgage Office of this pariah, on or about the 12th day of December, 1913, notified the said Henry Capus of the seizure of the said property and of the rents arising therefrom, and made demand on him for the rents which petitioner was entitled to have the sheriff collect for its benefit under the said writ of execu-tory process; that the said property, when sold^'^the sheriff under said writ, on the 6th day of September, 1917, did not bring sufficient to discharge the writ and pay for plaintiff's claim, as the property sold for §2600,00 and petitioner's claim under said writ amounted to a Bum in excess of §6,000.00,
Hence this suit, for the amount stated, and for general relief.

The defendant, ty way of exception, claimed that plaintiff’s petition set forth no lawful cause or right of action against this exceptor. This being overruled, on Hovember 16, 1917, defendant filed a peremptory exception of prescription of one year, which exception was maintained by the judge a quo, and from this decision follows this appeal.

The provisions of the Civil Code applicable to the plea filed by the defendant in this case are Articles 2293, 2294 and 2301'.

Article 2293 reads:

"Quasi contracts are the lawful and purely voluntary act. of a man, from which there results any obligation whatever to a third person, and sometimes a reciprocal obligation between the parties."

Article 2294 provides:

"All acts, from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to-wit: The transaction of another's business, and the payment of a thing not due."

Article 2301 provides:

"Obligation to Restore.Thing Unduly Bald. He who re-oeives what is not due to hlm7 whether he receives it through error or knowingly, obliges, himself to restore it to him from whom he has unduly received it."
"The obligation to restore does not rest on proof of wrong-doing or bad faith."
Drainage Commission v. National Contracting Co., 136 Fed. Rep.

Again:

"Suits for a repetition carry with them the right to recover the fruits from their commencement."
6 Sav. 111.

In the case of Stockton v. Hyde. 5 An., 300, the court held:

"This is an action for the recovery of the amount of certain rents of lots which the plaintiff had attached as the property of one Craddick, and which was sold under the judgment .(Which he obtained In the suit of attachment. She rents áre said to have accrued between the attachment and the Sale under execution. It la alleged that under a pretended sheriff’s sale the defendant, pretending to have acquired title and possession, received the rents and revenues of said lots, and prevented the sheriff from collecting and receiving them. The plaintiff's petition was dismissed in the court of the first instance, on the ground that hie petition dlse closed no cause of action; and on the appeal it was contended that the plaintiff, as attaching creditor, has no.right of action against the defendant, bit that his remedy is exclusively against the sheriff. By the service of the attachment, the sheriff was in possession of the lots for the benefit of whom it might eoneem - the attaching creditor or the other parties in interest. The rents accruing from the possession, it appears to us, belonged to the party for whose benefit the possession was held (C.Code 457, C.P. 656,658). The debtor of the rents owed the sheriff merely as the bailee of this party, whose right was established by the Judgment on the attachment. The attaching creditor is not obliged to take his recourse against.the sheriff, who may not be, perhaps, in default, but has his direct action against the defendant, as the receiver of money belonging to him."

In the case of Garland v. Estate of Scott, 15 An., 143, we quote from the syllabus;

"Statutes of prescription and limitation cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law."

To the same effect is Succession of Birba, 48 An., 655.

On the contention that Capus is the only party bound, together possibly with the sheriff, in this case, the authorities cited, 39 An., 23, Knoop v. Blaffer, and 31 An., 560, City of New Orleans v. Bank, are not in point, and are not sustained.

This court, in Prudential Savings & Homestead Society v. Victor J. Gondolf, No. 7169, held: (Syllabus);

"Where the unlawful act of one person not only damges another, but also enriches- the wrong-doer, there arises an action both ex delicto and quasi ex contractu, and the action to recover the unlawful gain is barred by the prescription of ten years."

And again, in this court, No. 7406, Maurepas Milling Company v. Opdenweyer-George Lumber Company, it was held: (Syllabus):

"Where one who is in possession of the property of another, or upon which another has a privilege superior to his, sells it and receives the price, he makes himself liable to pay the amount of the price to the owner or to the privileged creditor."

June _, 1919.

The authorities quoted and the law being against the contention of the exceptions filed in this cause, the judgment of the court a quo must be reversod.

It is therefore ordered, adjudged and decreed that the judgment rendered in this cause, maintaining prescription, is rejected and reversed. To the same effect, the judgment of no cause of action. And this cause is remanded, to be proceeded with in accordance with law.

New Orleans,


text:
    Charles F. Claiborne, Judge.
    LAMBERT BROS. vs. FRANK HERTZ, Appellant.
    No. 7560.
    May 15th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This ie a suit to recover the cost of Installing Beverage in a house.

The defendant, Frank Hertz, vas the owner of a property -designated by the No, 4219 Laurel 3treot; on June 22d, 1914, he executed in favor of John Doormans a "bond for dead" by which he agreed to sell to him the above mentioned property for the price of $1750 payable in monthly installments of $20 eaoh beginning July 1st, 1914; the actual transfer to be made when the purchaser shall have paid one-third of the purchase price; the purchaser was to pay all taxes and to insure in the name of the owner and to go into immediate possession.

Doormans went into possession of the property, and it is not claimed that he failed to make any of the payments ae they became due.

On February 9th, 1916, Doormans made a contract with the plaintiffs herein by which they were to install Plumbling and Sewerage and to furnish and put up in said building 4219 Laurel ¿treat the following improvements, viz:- a porcelain lined oath tub, washstand and closet, kitchen sink, slop sink and hydrant faucet in yard, all for the price of 0155.00,- payaüle as follows: one note of '15, and 14 notes of Í10 each, payado monthly; a default of any one note to make all the other notes become due; the notes stipulated eight per cent per annum interest from maturity till paid, and twenty per cent attorney's fees in case of suit to enforce their payment.

The plaintiffs recorded this contract on February 10th, 1916. They made the improvements and received payment of the first and seoond note amounting to 325.

Upon Doormans' failure to pay any more notes, Lambert Brothar», on November 17th, 1014, tiled suit against him on th* thlrtoon unplad notos of $10 oaoh, amounting to $130 - and obtained Judgment against him for that amount with sight par oent Interoat and twenty par cent attorney's fees, nnd privilege upon the property 4219 Laurel Street.

On March 21st, 1917, the plaintiffs filed tha present suit against Trank Hsrtz. They alleged all tha facta above red ted, and, further, that since the filing of the ault against Doormans they had learned that the title of the property is recorded in tha name of Frank Hertz, and that Doormans was in pos-sssslon of it by virtue of a Bondfor Deed; that Doormens had improved the property end acted as the owner of it; and they prayed for a Judgment against Hertz for $130, with eight per oent Interest, ten per oent attorney's foi-s nnd privilege upon the property.

Hertz denied that Doormans was the owner of the property and admitted that he was the owner; he admitted that Doormans had been in possession under the bond for deed, nnd that he had paid a number of installments as required by that act; that he was Informed that Doormans had nade improvements bn the property, but that the same had been made without his knowledge or consent.

There was Judgment in favor of the plaintiffs and against the defendant Hertz for $130 with eight per cent interest and ten per oent attorney's fees, but denying the privilege claimed on the property.

From this Judgment the defendant Hertz has appealed. The plaintiffs,in this Court, have asked that the Judgment be amended by allowing them the privilege claimed by them.

We do not think that this "Bond for Deed" was a sale or an act translative of property either under the law or in the minds of the contracting parties; there was something else to be done by both parties before the title passed; Doormans had to comply with certain conditions of the Bond as a condition preoedent to his right to olalm a deed, and Hertz was not bound to sign a deed until Doormans had complied with them; and there was an act of sale to be passed by Hertz to Doormans on the latter complying with certain conditions. Talbot vs. N. O. Land Co., 143 La., 263.

This case doe» not differ materially from the case of Lambert Bros. vs. Throunk, No. 7302, decided by us on April 22d, 1916. TYie improvements made mere identically the same, and' in both cnses the party contracting for the work was in possession of the property and administering the ‘same with the consent of the owner.

Te there held that the work done was not suoh only as suited the necessities or pleasure of the parties in posssssion, but that it was work required by law, a..d such as the owner himself would have been Obliged to do sad pay for, the payment of which was secured by privilege, and which Inured to the benefit of the property owned, by him, as a permanent and inseparable improvement, and for whioh therefore he was liable, as well as John Doormans.

Th«ronse ifl not in conflict **itn Al/riers Torks vs. " §zr/<? Thite lio. 6778 of this Court.

Acts Nos. 4 and 6 of the Extra Session of 1895 p. 6.16 provided for a Constitutional Amendment for the creation of a oewerage and Tatar Board for the City of New Orleans. Section 20 of the latter act authorized said Board "to compel all premises in the City of New Orleans to be connected with said system," Section 1 of Act 270 of 1908 made it the duty of said Board "to require all inhabited premises in the City of New Orleans to be connected with the mains of said system," and 3ectlon 3 provided that said Board "shall also have the power to do, or to cause to be done, upon the defaulting premises, that which its ordinances and regulations require, at the cost and expanse of the owner, and such costs and expenses shall bo a lien in said premises equal in rank to the lien of taxes Sc",

The owner is presume;} to have consented that the occupant ¿su'd-* of the property should^do/what the law would compel him to do.

The plaintiff is also entitled to the contractor's privilege. C. C. 2772 (2743), 3249 (3216), 3272 (3239); 25 A., 518 (520); 30 A., 361; 40 A., 264.

But as we said in Lambert vs. Throunk:

"To do not think that the defendant can be condemned to pap the interest nor the attorney's fees stipulated On Woodruffs (Doormans) note. He (Doormans) never agreed to this nor ratified it, nor was he benefited by it".

It is therefore ordered that the judgment herein be amended so as to read as. follows: It is ordered that the defendant, Frank Hertz, be oondemned to pay to the plaintiffs, Lambert Brothers, One.Hundred and Thirty.Dollars with five par cent per annum interest from February 9th, 1916 till paid and all costs of the District Court with privilege upon the lot of ground No. 4219 Laurel Street and upon the buildings and lm-provemsnts erected thereon; and it ^further ordered that the coats of appeal be paid by the plaintiffs herein.

Hey 15th, 1919.


text:
    CHARLES P. CLAIBOKJE, JUDGE.
    EASTERN RUG AND TRADING CO. VS. HABIB E. HALABY.
    No. 7568.
    May 22d, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit on two promissory notes; the defense is a plea in compensation.

The plaintiffs allege that they are owners of two promissory notes made hy the defendant Habib E. Halaby to the order of plaintiffs both dated New York and both payable at 212 Fifth Avenue, New York; one for $612.71 dated June 32th, 1914 payable six months after date, and the other for $266.25 dated November 12th, 1914 payable ten days after date, - all bearing six per cent per annum interest from date until paid, amounting in principal to $868.96.

The defendant admits making the two notes and that plaintiffs are the owners of them, but pleads compensation. He alleges that -the plaintiffs, the Eastern Rug and Trading Company, are indebted to him in the sum of $750 for this: That some time prior to July 2d, 1914 the defendant^ brother, Najeeb E. Halaby, was adjudged ' a bankrupt by the United States District Court for the Northern District of Texas sitting in Dallas; that said bankrupt endeavored to effect a composition of 25 cents on the dollar with his creditors; that all of said creditors, with the exception of plaintiffs herein and H. S. Tavshaniian and S. Telfeyan, signified their intention to accept said composition; that the plaintiffs herein suggested thffc only on the condition that the defendant herein should pay over to them the sum of $750 on account of «exclaim against the bankrupt would they acquiesce in the composition, and that upon said payment it would induce Tavshaniian and Telfeyan to acquiesce also; that in order to further the interest of his bankrupt brother and his creditors and being convinced that the extortion proposed by the plaintiffs was the only way in which auch composition could be effected and consummated, the defendant did^on July 2d, 1914 pay over to the plaintiffs herein the sum of $750, "with the understanding however, th8t said money would he returned to him in the event said composition should not he effeoted and consummated'1 ; defendant further alleged 11 that.in exacting and extorting from respondent the sum of $750 as a consideration for its action in approving the composition offered hy respondent's brother in the bankruptcy proceedings aforesaid and in inducing H. S. Tavshaniian and S. Telfeyan and Company also to approve said composition, the said Eastern Rug and Trading Company knowingly and fraudulently extorted money ffora respondent as a consideration for acting in the said bankruptcy proceedings, in direct contravention and violation of the provisions of the Act to establish a Uniform System of Bankruptcy throughout the United States, approved July 1st, 1898 and Amendments thereto approved February 5th, 1903, June 15th, 1906, and June 25th, Í910, respectively, and particularly section 29, subsction b, 5, thereof which prohibits such extortion and declares it to he a crime, punishable hy imprisonment of not mo're than two years , . . ; that said agreement under which he paid over to plaintiffs said sum -of $750, and the payment thereof were, as regards plaintiffs, prohibited hy law and therefore should he set aside and declared null and void ah initio, and ssid sum of $750, 'together with interest at the rate of six per cent per annum from July 2d, 1914 until paid, should he returned to respondent hy plaintiffs; in the event the Court should determine as a matter of law that said above described agreement and the payment of $750 thereunder were good, valid, and proper, then and in that event only respondent shows that he is entitled to receive back from plaintiffs ssid sum because of want of consideration then, previously, or thereafter accruing to- respondent for said payment, because of failure of said composition to be effected and' consummated’1; defendant therefore preyed that the agreement under which he paid the $750 be declared null and void, that he have judgment against the plaintiffs for $750, and that there be judgment in favor of plaintiffs and against respondent for only the difference between $868.96 and interest and $750 and interest.

The defendant swore to the truth of all the allegations of his answer.

There was judgment for the plaintiffs as prayed for, and rejecting defendant's plea in compensation.

From this judgment the defendant took a devolutive appeal

Wm. E. (¡raster, President of plaintiff company, testified that the £-750 were paid to the plaintiffs for. account of themselves, Tavshaniian and Telfeyan to reimburse to them the expenses incurred by John B. Thorn, who had been sent by these three firms from New:York to Dallas and Dew Orleans to investigate the affairs of llajeeb Halaby and his transactions with his brother Habib, the iefendant herein; that "on or aoout September 26th, 1913 H. 3. and H. E. Halaby came to our store and IT. E. Halaby bought a lot of goods amounting to £8845.09 also $1034.78 of carpets and rugs. Part of which ware promptly shipped to him at Dallas, and it was found that these goods were immediately transshipped to Hew Orleans upon their arrival st Dallas by If. E. Halaby to his brother H. E. Halaby" -; there was no\ understanding at any time to the effect that this $750 was to be returned in case the composition did not go through, because it never occurred to any one, the creditors consenting, that the composition would not go through; the composition did not go through for the reason that the attorney f,or the bankrupt withdrew it and the deposit for the composition was not made; the amount paid to Mr. Thom was $584.41, telegrams $11.12, check to their attorneys C. M. Smithdeal §5.0 and T. S. Kingman £160.83 mating §806.36.

Thomas L. Crawford, is Secretary and Treasurer of the plaintiff company; the creditors of If. E. Halaby amounted to §51323.01 and the amount of the three firms of plaintiff, Tavshaniian and Telfeyan amounted to $23201.63; there was no such understanding tho.t the §750-was to be paid back in ease the composition did not go through; the plaintiff» were creditors for $16904.60; they signed the composition; they got two dividends one of 10 and the other of 5%.

John B. Thorn is salesman for plaintiffs; he-was in Dallas, Texas when H. E. Halaby was examined in regard to what became of all the rugs, -nd ha stated, that he had shipped some, of the:a to his ’orother in ITew Orleans; he vent to ITew Orleans to 7?Tr&n£4 find the brother, and visited Hah«fe; his expenses in the matter were $534.31 consisting of railroads, hotels and other incidentals from Hay 13th. when he left ITew York to June 13th. when he returned; he was sent by the three firms above mentioned.

Ashód H. Tiryakian, manager for Tavshaniian, swears that the allegation that the $750 was exacted for any other purpose than to pay. expenses the three firms had incurred is altogether untrue; the $750 Was distinctly for the purpose of defraying the expenses that the three firms had incurred in sending their representative to Dallas to report upon the condition of the bankrupt's stock; the attorney for the other creditors was informed of the payment of this $750.00.

Habib E. Halaby, the defendant, testified that the plain» tiffs herein were one of the creditors of his brother, ITajeeb Halaby^who had gone in bankruptcy in Dallas; he was trying to effect a composition with the creditors at 25 on the dollar; the majority of the creditors accepted the offer; the plaintiffs herein and Tavshaniian and Telfeyan held out; he saw than and "they said that they had sent one of their representatives to Dallas, and the representative has spent a considerable amount of monejr, amounting to about $750.00 and they feel that if they could get that $750', they will be inclined to accept our composition, or proposition, whatever it is"; he was his brother's representative in Hew York trying to effect the settlement; he "gave them this money with the distinct understanding, oral, of course, that in case this composition did not go through, or is not effected^that the money would be returned to me?" there was no receipt given; "I just simply trusted than, a gentlemanly agreement"; he thought the composition would go through and there was no necessity for a receipt; the composition fell through on the theory of the referee that if the bankruptcy was settled through the court, that the creditors would get more than 25 .per cent; Mr. Cramer, the President, is the name of the party with whom he agreed for a return of the $750; the three firma above mentioned initiated the proceedings against his brother; "the §750 was to cover what they said were the expenses which they had seen put to in investigating and bringing the proceedings;

Q,. "Didn't your brother turn over to you before he went into bankruptcy some of the goods that he bought from the Eastern Rug and Trading Co.?

A. That is none of anybody's affairs. That Í3 a transaction between ’.ne and him. He owed me money and it don't belong to this case at all.

ft, How long before your brother went into bankruptcy had these goods been turned over to you?

A. I am not going to answer such questions, because this is outside of this case".

the $868.96 represented the price of goods sold to him; plaintiffs voted for the composition.

Plaintiffs' demand for the notes is admitted to be correct, and they are therefore entitled to a judgment for their amount. The only claim in dispute is defendant's plea in compensation.

Section 29 of the Bankrupt Act of 1898, Sec. b# 5 provides:

"A person shall be punished by imprisonment for a period not to exceed two years upon conviction of the offense of having knowingly and fraudulently . . . (5) extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings".

The defendant is driven 'to this dilemna, either horn of which is destructive of his defense: If plaintiffs' testimony is true, and the payment to them had a valid cause, then defendant cannot recover the amount paid by him, because plaintiffs did what they bargained to do, and voted for the composition, and never agreed to returp the money in case the composition was not granted. The obligation 30 to vote was a sufficient consideration if it was legal; the defendant certainly thought so since he paid it.

If on the other hadn the testimony of the defendant is a correct recital of the real transaction, then, as he alleges and testifies, he paid the plaintiffs a sum of money as a consideration for their committing an act denounced "ay ip» and punished as a crime. It did not require the fulminating sanction of Congress to stamp such a transaction -as- illegaltA. The equity Courts of the country hod so decided long before. 1 Story Equity § 378; and their conclusion had "been adopted hy the Supreme Court of our State, 6 N. S., 218; 1 La., 297; 1 R., 454; 5 R., 101; 110 La., 615.

The original bargain was illegal and all stipulations connected with it, including the promise to refund, was equally illegal. 17 La., 128; 1 A., 178; 30 A., 207 (211); 13 C. J. 509 § 460; 2 Elliott on Contracts p. 352 § 1078.

From such a contract no cause of action arises either to enforce it or to rescind it; but the law leaves the parties where they have placed themselves; and when they appeal to it, it answers:

"Procul, 01 procul este profani,
Conclamat vates totoque absistite luco".35 A., 1173.
"The Temple of Justice of your country is the house of God,
It should not be made a den of thieves".3N.S.46 (48).
C. C., 1893 (1837):
“An obligation . . with an unlawful cause can have no effect".
C. C., 1895 (1889):
"The cause is unlawful when it is forbidden by law &c.".
C. C., 1892 (1886):
"That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void".
C.jf?, 19:
"Obligations contrary to Justice,good faith, or good morals, such as those by which a reward is promised to another to- commit a crime, give no\ right of action to either party to enforce the execution of the contract. But if the reward promised has been paid, no action can oe brought to obtain the repayment of the amount".

The principle is variously expressed by the words:"liemo allegans turpitudinem suam'auditndus est" and "ex turpi causa non oritur actio".

In Schmidt vs Barker, 17 A., 261 (264), the Court said:

"This court has often held that it will not lend its aid to settle disputes relative to contracts reprobated by law. It will notice their illegality ex officio and allow it without any plea.at any stage of the proceedings. Parties cannot oe heard who ask relief from a violation of law. The law leaves them where their conduct has placed them and "in pari causa turpitudinis melior est condi-tio possidentis". 3 N. S. 46; 17 La., 132; 5 R., 101; 12 R., 79; 1 A., 176; 6 A., 317; 7 A., 170; 10 A., 199; 12 A., 166, 249; 15 A., 519; 19 A., 498; 22 A., 105; 24 A., 278; 114 La., 822; 2 H. D., 1007 § 1; 6 Toull. § 126; 11 Baudry-Lac on Obligations Vol. 1 p. 323 § 316 C. Also Vol. 3, 2 de partie p. 1068 § 2839; on C. N., 1131; 3 Dalloz Codes Annotes on C. N., 1376, 1377 (C.C. 2301); p. 676 § 130; 33 Dalloz Rep. Leg. p. 1200 § 5489, p. 1206 § 5531; Pothier Oblig. p. 31 § 43; 3 Delvincourt p. 472 § 8; 10 Duranton p. 350 § 374; 4 Aubry & Rau p. 741 § 442 Bis; 1 Larombiere § 10 p. 307 on Art. 1133; 15 Am. & Eng. Inc. Law p. 963 § 5, p. 997 XXIV, 999 § 3; 1001 (C) St.Louis RRd.vsTerre Haute RRd., 145 U. S. 407; 197 U.S., 245 (295); 1 Story Equity § 298; 13 C. J., 492, 496 § 440; Elliott on Contracts p. 342 § 1066.9.

In Higgins vs. Mc Crea, 116 U.S., 671, the Court said:

"We do not see on what ground a party, who says in his pleading that the money which he seeks to recover .was paid out for the accomplishment of a purpose made an offense by the 1p^ and who testifies and insists to the end of his suit that the contract on which he-advanced his -noney. was illegal, criminal,end void,can recoyer it back in a court whose duty it is to give effect to the la^ Tfrich the party admits he intended to violate”. Affirmed in White vs. Barber, 123 U.S. 425.

The J“ud3e of the District Court was evidently guided by these principles in 'refusing to listen to the defendant; and dis-ni-*sing his dennnd. We are of the opinion that his judgment was right and we affirm it.

May 22d, 1919.