author: PINTOLSPIIL. J.

text:
    Mrs. Jennie Clements, Wife, etc.- -vs- George S. Dawson.
    No. 7961.
    Court of Appeal. Parish of Orleans.
    Dinhalaplal. J.
   PINTOLSPIIL. J.

Plaintiff represents that she Is the lasses of the premiaos No. 1639 Terpsichore Street, in this City, paying the sum of $37.50, per month, said lease being dated August, 1st. 1919, for twelve months , begining Ootober, 1st. and ending on the last day of September, 193o. That she is also the owner of the furniture in said premises; that she resides therein with her married daughter, wife of defendant, and her daughter's two ohlldren.

That for the last eleven months, defendant who is the husband of plaintiff's daughter, committed various aots of violsnoe upon his wife and attempted to do likewise on plaintiff. Also, complaining of various aots of brutalllty against her daughter, and also uselng vulger and indecent language to her

daughter and herself, causing great confusion and noise in the neighborhood. That she had requested defendant not to enter the premises, had looked the door and entrance to the house, but that he frequen tly had jumped the gate maíz surrounding the house, forcing an entrance into the house, eontrayy to plaintiff’s wishes; trespassing upon the premises and preventing plaintiff, by annpOying her boarders from earning a livelihood. That unless defendant is enjoined and restrained from interfering with plaintiff's enjoyment of the premises, whioh she had leased and in whioh premises she resided with her daughter and her grand-ohildren, and preventing defendant from committing aots of violenoe, whioh were nuisanoes to the neighborhood and whioh preventod her from making her living by keeping boarders on the premises.

Therefore, she finally prayed that a writ of injunction issue, restraining defendant from in any way interfering with her peaceful enjoyment of the premises, or in any way or manner molesting her or the oooupants of her home, and that the Injun otion so issued he made perpetual, and for all costs and general relief.

Defendant filed a rule through Counsel to dissolve the injunction on various grounds;

1st. That the recitals of the petition are false and untrue.

4nd. That the same disclose no sause or right of action.

3rd. That at the time said copy of preliminary injunction and petition was served upon him, he was lying in bed at his residence, and that plaintiff, his mother-in law who resided with him, his wife and two children, for the past five years continuously and uniterrupedly and was supported, maintained and provided for by defendant, mover. That he is a telegraph operator by profession, has been working steadily for the Western Union Telegraph Compnay, earning a good salary, and that his earnings provided for his mother-in-law, wife and children. That the residence in question was not leased by plaintiff, but by movers wife aoting in his behalf; that present suit is an attempt on the part of said mother-in-law to eject and restrain! him from entering hie own home, and visiting his own wife and ohildren.

That no proceedings have been brought by either mover or his wife, looking towards a diroroe, and mover avers, that without just oause, reason or exeuse, his wife has constantly attempted to make him leave the matrimonial domioile. notwithstanding that hs is and always has been a kind and dutiful and lovi, ,g husband. That he declined to leave his sail home, that his mother-in-law, plaintiff herein, is merely used as an instrument or pupet to oust him from entering his own home whioh was maintained by him, through his toil and untireing efforts, he advancing from $150. to $175. , each and every month for the support of said household, including the support of his mother-in-law; that therefore, the injunction should be dissolved as same would areateo extreme hardship and injustice to him, defendant. Subsequently defendant filed an answer in whioh he virtually avers the same grounds as he did in the rule to dissolve, and claiming that the aotion of plaintiff in securing said injunction is wrongful and contrary to law, and an invasion of defendant's legal rights, and because of said wrongful aotion defendant is entitled to recover as compensation the sum of $5.000. from plaintiff, together with a reasonable sum as Attorney's fees, and that the injunction prayed for by plaintiff be dismissed, the injunction proceedings set aside and judgment in reoonventlon for the amount prayed for..

The rule to dissolve and the merits were tried together, and testimony whioh would be useless and serve no good purpose by injeoting same into this record, was was taken pro and con, and finally after due hearing and argument by respective Counsel, and full and care -ful consideration of this cause, the trial Judge save written reasons, whioh we adopt for judgment in this cause, as follows, to-witj-

By Cage. Judes.
* This is a oase, fibe years ago, the defen dant, Dawson, leased this house from the owner, signing a written lease and twelve rent notes. The evidence ehows that from that date the owner of the property has never had any cause for eomplaint against her tenant; it shows that the defendant was a telegraph operator, liable, because of his occupation to be chan ged about by the telegraph system for which he worked, from place to place. The evidence satisfied me that the subsequent leases of the premises from year to year on each expiration, were signed by the wife as the agent of the husband. There was no situation which arose which permitted her to acquire that lease for her separate benefit, with her seperate and paxsfaxMl mauy paraphernal money. The testimony does not bear this out at all. The fatal flaw in the plaintiff's case is if her statement and her mother's statement that the.leases for the past four years were made by the wife as agent for her mother, is a fact, that when the differences between the wife and her jg husband became acute, it became necessary to destroy the lease made in accordance with the ouetom of several years — >a lease signed by the owner and the defendant's wife, and substitute therefor a lease signed by Mrs, Moore, the plaintiff. If the lease then outstanding was the lease of Mrs. Moore, executed through her agent, Mrs. Dawson, there was no nesdssity on the face of the earth to destroy this lease, and if, on the contrary, it was the lease of the husband, the head and master of the community, executed by the wife for the community, then Mrs, Fabaoher had no right on earth to cancel and annul that laas« and five a lease to somebody aleo.
I aa fully Impressed that the lease was the lease of the sommdnlty of aoqusta and sains exlstins between Dawson and hie wife, and belongs to him as the headiad head and master of the community, and that Mrs. Moore, the plaintiff in this case, is not the tenant of the house. The tenant holds a MUM tenure under the lease, and that being a fast. Id she was not satisfied with the eondust of Dawson in this house. It was not her right or province to enjoin him from going to his own house; it was her right and preyel-sge to get out. I oonslder that this Is an lnjunotion by the wife in disguise. It appears to me that the real plaintiff in lnjunotion is the wife, and that ths mother Is used only tas a figurehead. I think the lnjunetlon was wrongfully issued and it will be dissolved. I believe that Mrs. Moore is merely a shadow or simulas rum for her daughter, and that whatever Injury or damage has oome to Dawson from the Issuance of the lnjunotion was assisted by his wife, in my opinion.
There will be judgment (dissolving and setting aside the lnjunotion with oosts. As the defendant has proven no damages whatever, I will dismiss his reoonventlonal demand for damages as In oase of non-suit11.

For ths reasons herein assigned, It is ordered, adjudged and deoreed, that ths judgment of the lower Court is affirmed with oosts against plaintiff In both Courts.

-Judgment Affirmed*


source: Caselaw Access Project

author: at. Paul, Juago.

license: Public Domain

text:
    NO. 7962.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
    PARETI BROTHERS VS CONTINENTAL PAPER BAG CO.
   OPIHIOH,

at. Paul, Juago.

Hila ia a claim for the price of 260 boxea of assorted fruit, alleged to have been sold and shipped to ofondant; say $868.

The fruit was ordered by defendant's local agent on the telegraphic request of one Thomas Fynes, who was an assistant treasurer in defendant's employ; whioh request mentioned that the fruit was intended for distribution among defendant's employees; and we conolude from the evidence that the sale was made solely upon the credit of the defendant. For there is not the least reason to believe that plaintiffs meant to credit the aforesaid Thomas Pynea individually, whose tt&litíéMé-í financial responsibility was wholly unknown to him, and of whom the local agent says, " Knowing Tom as well as I do, I don’t believe he would give away personally 200 boxes of oranges." p. 21.

Mor do we find anything in the oontention that, when a misunderstanding developed about prises, the order was countermanded. The instructions to oanoel the order reached here about 8 o'clock at night; too late to stop the shipment whioh went forward by vessel early next morning, notwithstanding plaintiffs efforts to stop it.

March 7th, 1921.

But we aro unable to discover in the record any authoril , express or implied, on the part of the looal agent, or of Fynes, to make this purchase for account of the defendant, neither of these two officials had any actual authority to make such a purchase; neither had ever made any purchases for the defendant on any previous occasion; and the defendant was engaged in the business of selling paper bags, not of purchasing fruit.

The defendant refused to accept the shipment when tendered, and repudiated the transaction in toto. See Gair vs Backing Co 124 la 193. also 106 la 668.

Under the circumstances ### plaintiff must look for payment to Fynes, who ordered the goods without authority to do so.

The judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand be rejected at their oosts in both oourts.

Hew Orleans la,


author: St. Paul. Juaga.

text:
    NO. 7964.
    B. V. Guerra Vs. Moise Levy.
    State of Louisiana. Court of Appeal Parish of Orleans.
   opinion,

St. Paul. Juaga.

1 Petitioner alleged that lie had agreed, to purchase, i. ana defendant had agreed to sell, a stock of merchandise ■*snd fixtures at market price; that petitioner had paid defendant $>400 on account of said purchase. Annexed to the petition is the written agreement of sale, showing that the price was to he paid cash upon delivery. Petitioner alleged further that when he demanded the delivery of said fixtures and stook at market prices, defendant "without cause or warrant in law or otherwise x x x x refused to deliver the said fixtures and groceries or return the said deposit of ¡|400" Wherefore petitioner prayed for the return of his said deposit.

Defendant filed an exception of no cause of action, whioh was maintained helow; honing it upon two grounds, 1. That it was not alleged that defendant had been put in default, and 2. That it was not alleged that plaintiff had tendered the price in cash when he demanded delivery.

I.

If plaintiff offered to pay cash when he demanded the delivery, then defendant's refusal to deliver made a formal putting in default unnecessary.

"Ho putting in default is necessary when the defendant denies the contract, or refuses to perform it, or when it la oertain that the offer will he rejected," Milam-Morgan Co Vs Atlantic Fruit Co, 12 Orleans App. 306; Robelot Vs Gentilly Terace Co, 10 Orleans App. 237.

II.

It ia true that plaintiff does not in so many words allege that he offered the cash when ho demanded delivery. But as the oontraot very explioity provides for cash on delivery, plaintiff’s allegation that the refusal to deliver was "without oause or warrant" might oven he oonstrued as "equivalent to" an allegation that he did offer the oash; sinoe otherwise he oould not have said that the refusal was without oause or warrant. See Illinois Central R. R. Co vs Terminal Co, 140 La 467 (472)

But we prefer to fillow a course sanctioned hy our own jurisprudence said hy that of the Supreme Court, and which we have heretofore summed up as follows; "Maintaining an exception of.no oause of action, based merely on defective pleadings and not going to the merits of the controversy, does not form the basis of res judicata. Henoe it is proper under such exception simply to non-suit the plaintiff, or even to remand the case in order to allow plaintiff an opportunity to amend". Illinois Central R. R. Co. vs N. O. Terminal Co, 14 Orleans App. 310. And again "The tendenoy of courts is to brush away technicalities in order to reach the merits of the case. When pleadings are defective and not.broad enough to admit evidence or authorize judgment, amendments will be permitted in furtherance of justice. A cause will be remanded when Justice will thereby be subserved." Le Duff vs Demoruelle, 11 Orleans App. 174.

March 7th, 1921.

We will therefore remand the case in order that plaintiff may make his petition more explicit; but he should pay the costs of this appeal. 14 Orleans App. 313.

The Judgment appealed from is therefore reversed, and it is now ordered that the exception of no cause of action be' overruled and that the case be remanded, with leave to the plaintiff to amend within ten days after this decree is filed in the court below, by alleging explicitly that when he demanded delivery ho was ready and willing, '«IShen and there, to pay cash for the goods and fixtures; otherwise the demand of plaintiff to Ipso facto rejected at his oost. The costs of this tBSSBUStil to «wait the final disposition of the case.

Hew Orleans la,


author: CHARLES 3?. CLAIBORHE, JUDGE.

text:
    Charles ]?. Claiborne, Judge.
    Mederic E. Roger vs Milliken and Farwell
    No. 7967
    March 6th, 1921 .
   Mederic E. Roger vs Milliken and Farwell

Ho.7967

Appeal from Civil District Court, Hon. Hugh C. Cage,Judge.

CHARLES 3?. CLAIBORHE, JUDGE.

This case was before us heretofore and is reported in 14 C£. App. 92. The plaintiff seeks to subject the proceeds of sale of a crop of sugar in the hands of the defendant to his .privileged claim of overseer. He alleged that he had been employed by his father S. E. Roger as overseer to manage his Bellewood Plantation in Assumption Parish for the year 1914;that

"the said S. E. Roger agreed to pay him for his services the sum of One Hundred and twenty-five Dollars per month or the sum of Pifteen Hundred Dollars for the entire year 1914".;

that he performed his duties as such during the whole of the year 1914, and that there is due him said sum of $1600

"less the sum of #327.16 received by him from S. E. Roger on account";

that said Bellewood Plantation was cultivated during the year 1914 in sugar cane, corn and other crops upon which he had a privilege superior in rank to that of any other person except the laborers; that said crop was shipped by said S. E. Roger to Milliken and Harwell, and was sold by them and that

"the proceeds of the sale of same, which were more than sufficient to pay him the amount due him in full were by said Milliken & Harwell retained and appropiiated by them",

and that they have refused to pay him the amount due to him; that said orop so snipped to Milliken and Harwell went into their hands affected by the superior privilege in favor of petitioner which followed the proceeds of sale in their hands, and which entitles petitioner to be paid therefrom and to recover judgment against the said Milliken & Harwell.

By a supplemental petition the plaintiff alleged that lie had already Attained a judgment against S. E. Roger for $1278.84 representing the balance due him for his services as overseer as set forth in the original petition herein, hut that he had not been able to collect said judgment for the reason that S. E. Roger had no property out of which said judgment could be paid.

By a second supplemental petition S. E. Roger was made a party defendant.

S. E. Roger answered, neither admitting nor denying the allegations of the petition and submitted the matter.

Milliken and Farwell filed a general denial and specially denied that the plaintiff was employed by S. E. Roger as an overseer, but alleged that he was a son- of S. E. Roger and

"as such lived with him and subsisted off the proceeds of the plantation; that Bellewood Plantation was a small place and did not need an overseer, that another son of S. E. Roger, one Clay A. Roger, was also claiming a compensation of nine hundred dollars as assistant overseer of the same plantation; and they believe the whole transaction is collusive";

that S. E. Roger has received $2000 homestead, and that the present demands are extortionate, and they deny that plaintiff' is entitled to a privilege; they admit that a certain proportion of the crop of sugar and molasses was shipped to them, but they deny that any part of the proceeds of sale of the same was at any time retained or appropriated by them, or that at any time did they have on hand an amount sufficient to pay plaintiff's claim; that by virtue of a duly recorded act of pledge and privilege on the crop, they agreed to make advances to S. E. Roger for the purpose of cultivating a crop of sugar and molasses;’ that all S. E. Roger had was a credit with them which vanished when they applied it to the payment of S. E. Roger's debt; that plaintiff was aware of this contract and by his acquiescence in it is estopped from asserting his present claim.

The judge of the District Court found that S. E. Roger had

employed the plaintiff as overséer on the plantation during the year 1914 at a salary of $1500*';

that the defendants had the usual contract with S. E. Roger to advance to him money and supplies to cultivate the Bellewood Plantation and make a crop during the year 1914, according to which they had a privilege upon the crop and Roger hound himsel to ship the same to the defendants who were authorized to sell the same and apply the proceeds of sale to the reimbursement of the advances of money and supplies made by them; that the crop was made, by Roger, shipped by him to the defendants, who sold it and immediately applied the proceeds to the payment of their advances; that their account was closed on May 31st, 1915 leaving i balance due to them by Roger of $9316.81; that the suit of plaintiff herein was filed only on December 30th, 1915 ;after the imputation of payments had been made and the accounts closed;that at the time this suit was filed, the defendants had no money in their hands belonging to S. E. Roger, because as soon as the defendants sold his sugar and molasses and placed the proceeds of sale to his credit, his indebtedness to them, an'd their indebtedness to him, became instantly reciprocally extinguished by compensation, by operation of law, even unknown to them; C. C. 2207. 2208; that Roger owed defendants many thousand dollars before he shipped a pound of sugar, and that his debits were always many dollars in excess of his credits, ending with a final debit of many thousands of dollars. The learned Judge concludes his opinion by saving;

HI am of opinion that as soon as the proceeds of a crop subject.to the agricultural liens established thereon by the laws of Louisiana come - lawfully come - into the hands of a bona fide creditor of a planter, and are atruck by the law of compensation, they cease to exist as proceeds of sale, and unsatisfied liens are lost”.

The judge quotes no authority for his conclusion except the case of Union Seed and Fertilizer Company vs J. Supplesons Planting Co. 138 La. 692. In our previous opinion we stated that the facts in the two cases were not the same; a reexamination of the case satisfies us that we. were correct.

There was judgment for the defendants and the plaintiff has appealed.

I. The first question to he examined is whether the plaintiff was ewer employed hy his father S. E. Roger as an overseer during the year 1914?

We agree with the District Judge that the plaintiff has established this branch of his case. He swears that he was employed by his father as overseer and book-keeper at a salary of $125 per month for both; that $75 was the proportion to which he was entitled for salary as overseer, and $50 for keeping the books and doing clerical work in the office, making out and paying the pay rools; that he received on account from his father $327.16; that the Plantation covered 1375 acres;

S. E. Roger testifies that he employed his son, the plaintiff, as overseer for the year 1914 at a salary of $126 a month.

leo Guillot, cashier of the Bank at Assumption, testifies that H. E. Roger, acted for his father in his transactions with the Bank.

This testimony establishes the employment and the salary. 125 La. 15; 24 A. 76. But according to plaintiff's own testimony it is.-'.only his salary as overseer or $75 a month or $900 a year which is entitled to a privilege. That must be credited with $327.16 as one of the two items which the debtor had the most interest in discharging as a privileged debt. C. C. 2166 (2162); 32 A. 145. The salary of book-keeper or $50 a.month has no privilege on the crop superior to that of the defendants. 125 La. 15. Plaintiff is therefore entitled to a privilege superior to the defendants only for $572.84.

II. But we cannot agree with the learned District Judge in his theory of compensation, and that as soon as a planter ships his crop to a factor in Hew Orleans, and the factor sells the crop and passes the proceeds upon his books to the credit of the planter, all privileges cease to exist upon the proceeds up to the amount due the factor. If this were the law, the planter could easily defeat the claims of his employees. But the law has protected them ■tetter against the combined action of the planter and of the factor. The judge might have been right if the proceeds of sale of the crop had been the absolute property of S.E. Roger. But they were not. They came into the hands of the defendants impressed by the law with the privilege in favor of the overseer superior to the claims of defendants. Article 2215 (2212) C. C. provides that:

"Compensation cannot take place to the prejudice of the rights acquired by a third person,1).

S. E. Roger could not have released his crop or its proceeds of the privilege by simply turning them over to the defendants: nor could the defendants have released the proceeds of the privilege affecting them by merely placing them upon their books to the credit of S. E. Roger.

But we understand the jurisprudence to be against the opinion announced by the District Judge.

The law is as follows:

C. C. 3217 (3184) "The debts which are privileged on certain movables are the following: lo The appointment or salaries of the overseer for the current year, on the crops of the year and the proceeds thereof, debts due for necessary supplies furnished to any farm or plantation, and debts due for money actually advanced and used for the purchase of necessary supplies and the payment of necessary expenses for any farm or plantation, on the crops of the year and the proceeds thereof".

It must be noticed that the overseer's privilege is not only on the "drops", but upon "the proceeds thereof". 52 A. 2148.

By Act 80 of 1886 p 127 the legialature provided
"that all privileges and pledges on crops, granted by existing laws of tHa State, shall be ranked in the following order of preference, viz:
First. Privilege of the laborer.
Second. Privilege of the lessor.
Third. Privilege of the overseer.
Fourth. Pledges, under Section 1 of Act Ko. 66 of 1874, orddr of recordation.
Fifth* Privilege of furnishers of supplies and of money, and of the physician".

It follows, therefore, that the plaintiff, overseer, had a privilege upon the crop of 1914 and upon the proceeds thereof superior to the pledgee undér the act of 1874 or the furnisher of supplies under C. C, 3217, and in this case superior to the defendants*

The evidence in this case shows that S. E. Roger shipped to the defendants sugar and molasses, and that the defendants sold the same and received the proceeds, amounting to several thousands of dollars, more than sufficient to pay plaintiff, and that they have made their own the whole of those proceeds hy crediting them to the debt due to them by S. E. Roger* They had no right to do so to the prejudice of the plaintiff in this case. The crop and its proceeds were dedicated by law to the payment of a certain class of creditors, and no action of the planter of of the factor, and no agreement between them could defeat the law as long as the crop or its proceeds remained in the hands of the planter or of the factor. 139 La. 558 (576).

In 48 A. 686 the Court said:

"The personal liability arising out of the act of converting another*s property, or property on which he has a lien, cannot be avoided and frustrated by the fact itself of the conversion".

Quoting from the 86 U. S. 544 the Court said:

"The factor had, in payment of his debt, received and applied the crop he knew to be pledged for the rent of the plantation and on the suit of the lessor. It v/as held that the factor was liable to'the lessor for the proceeds of the crop".

The leading case upon the subject is Welsh vs Barrow 3 A. 133. The facts were as follows: '¿hields owned a plantation; Welsh was overseer upon it during 1842; in November 1842 Shields sold it to Barrow; the crop of 1842 was sold and the proceeds were réceived by Barrow; Welsh sued Barrow for his salary for 1842; the defense was that the sale of the crop by Shields to Barrow extinguished the overseers privilege. Held:

" "By Article 3184 the salary of the overseer for the year last past is privileged on the product of the last crop - thus presupposing that the planter would not keep his crop, hut sell it; and thé privilege is affixed specifically on the proceeds. Such is the construction given to this article hy the Supreme Court in the cases cited; and in the Succession of Johnson, Kennedy, Appellant, 3 Rohinaon 216, the Court held that this privilege on the last year’s crop may he exercised upon the proceeds after the crop Jjas been sent to market and sold. If the proceeds were in a court of justice, or in the hands of the defendant's factor, the plaintiff would have his privilege over other creditors; and we do not understand on what principle he can Be deprived of it when the proceeds are in the defendant's pocket".

In 7 A. 526 it was said that the privilege of the overseer followed the crop in the hands of third persons.

In 52 A. 2139 it was held that the purchaser of a plantation with the crop upon it takes the crop subject to the privilege of the furnisher of supplies thereon. Affirming 3 R. 216; 3 A.276, 133; 7 A. 526; 22 A. 438; 6 R. 484.

In the 52 A. on page 2148 the Court said that the litigation in that case was not between contesting adverse creditors or owners ,, ’out between the party entitled to a privilege against the person having still possession of the property who under the lav; stood quoad the privileged creditor in,the shoes of the owner of the crop.

In 107 La., 322 the ruling was that the purchaser of a growing crop was charged with presumptive knowledge of the existence of the privilege of the furnisher of supplies resting upon it; an allegation that he had such knowledge was not necessary; this privilege could be enforced in a personal action against the purchaser of the plantation and detainer of the crop or it3 products. Affirming 52 A. 2139; 3 A. 133 and 7 A. 526.

In 117 Ra., 163 (177) it was said:

"The privilege for advances conferred by C. C. 3217 is not confined to the growing crop, but bears upon the products oí ter they ore severed from the soil, cod follows the:.\ into tíre hondo oí a purchaser \'..o buying directly from the planter, is presumed to know that such privilege may or actually does exist11.

In that ca3e jdie Court said on p 180:

"The intervenor must he held to have taken the seed subject to vie obligati on v.'ith which it was burdened, and must either return it or discharge that obligation".

The Court held in 131 La. 379:

"It ha.3 been uniformly held that the purchaadr of a growing crop is charged with presumptive knowledge of the privilege of the furnisher of supplies and buys subject to such privilege".Quoting all the authorities cited above. In that case the Court srid on page 379:
"Louisiana is an agricultural state, and its prosperity largely depends upon agriculture. To enable the farmer to make his crop, the privilege of the furnisher of supplies must be recognized and must be adequately protected. This protection is assured by the enforcement of the privilege upon the crop, or, if sold, upon the proceeds thereof, and by charging the purchaser from the planter with knowledge that that crop is bought subject to any liens that may be upon it at the time of the purchase. As long as the agricultural product remains in the hand of the farmer or planter, it Í3 a crop and nothing else; but when his vendee parts with ownership the agricultural product can no longer be considered a crop, it has become merchandise; hence it necessarily follows that the lien is gone".

The same principal must apply to the laborer; the overseer, and all who have raised the crop, ajad to factors who receive the crop, sell it, and collect the price.

"Equity uncontrolled by positive law does not allow them to x x propper by the labor and expense of others".

13 A. 55; C. C. 1965.

The privilege of the overseer for his salary primes the pledge or privilege of the furnisher-of money and supplies. 7 A. 668; 13 A. 443; 24 A. 76; 125 La. 5, 14, 15.

V/e conclude therefore that the furnisher of supplies to raise a crop, with a pledge under Act 66 of 1874 p 114 or with a privilege under C. C. 3217 (3184), cannot apply the proceeds of sale of the crop received by him to the payment of his advances until the privileges upon the crop superior to his ovm have been pa-id; and that when he has received those proceeds, he lecomes personally liable for the payment of those superior privileges to the extent of the proceeds of sale in his hands at the time the claim is made by the superior privileged creditor.

It is therefore ordered that the judgment herein be reversed and avoided, and that there now be judgment in favor of the plaintiff herein Hederic E. Roger and against the defendants Ellen R. Earwell and the Succession of Charles A. Earwell, in solido, for Eive Hundred and seventy-two 84/100 Dollars with five ¿er cent per annum interest from December 30th, 1915 until paid and all costs of suit with privilege upon the proceeds of sale of the crop of 1914 in defendant's hands.

Judgment reversed.

March 6th, 1921


author: St. Paul, Judge.

text:
    NO. 7971.
    COMMERCIAL-GERMANIA TRUST & SAVINGS BANK. VS ALBERT SIDNEY WHITE.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

St. Paul, Judge.

Plaintiff suod out executory process on a note purporting to represent the unpaid purchase prioe of the property seized and to he secured hy vendor's -lien and special mortgage thereon; all os per deed of purchase annexed.

Thereupon certain creditors of the defendant enjoined the seizure, alleging (in substanoe) that plaintiff had acquire-' the note from defendant himself, who in turn had come into possession thereof hy paying to the venidr the purchase price for which the note stood; that the mortgage, having thus been extinguished, did not revive when defendant reissued the note.

Por answer plaintiff alleged, and on the trial pffered to prove and did prove (over objections), that the purchase price had boon paid to the vendor at the very moment of the sale; that accordingly the note then executed never did represent such purchase prioe and had never passed into the possession of the vendor, hut on the contrary had been retained by the defendant; that the sole, purpose for which said note (and the mortgage to secure the sane) had heen confected, was that it night serve defendant as a basis of credit; and that defendant lad thus used it with plaintiff, who now hold the same as collator .1 security for an unpaid debt exceeding the amount thereof,

I.

Our jurisprudence is well settled that when a mortgage is executed to secure a special (then existing) debt represented ny note, payment of the debt thus represented extinguishes the mortgage, and the subsequent roiS3Ue of the note will not revive the mortgage (Bank vs Gragard, 109 La 677)

It is also equally well settled that when a mortgage note does not represent a special debt but is intended only for future use as collateral security (the mortgagee being only the nominal creditor), such note may be issued and reissued in that way; and the return thereof to the maker will not impair the mortgage, which revives with each reissue of the note. (Herber vs Thompson, 47 An 800; also 41 An 873; 39 An 712; 25 An 364; 22 An 285; 21 An 5; Bander vs Bowmar, 16 La 371)

Hence "Mortgages nay be given for debts having no legal existence at the tino of the mortgage (0. 0. 2292); and it is not essential in such a mortgage, even with respect to third persons, that it should express on its face that it was executed to secure future debts. It r.ay even be described as a security for existing debts, and yet used to protect those which 111 the contemplation of the parties were to be created at a future time." Pickeragill vs Brown, 7 An 297 (308-310)

IX.

That the oirouniBtanoea of this case come within the proposition above last stated, has particularly been deoided by the Supreme Court in a ease by this sane plaintiff against the same defendant, in which all but one of th present plaintiffs-in-injunotion were parties; towit, Bank vs White, 145 La 54.

The faots of that case wore identical with those here shown; and thereupon the court held; That a note and mortgage given .under such circumstances did not represent a special debt, since no debt then existed; 2' That the vendor under such circumstances was only a nominal mortgagee, since ho was not a real creditor; z‘ That between the holder of suoh a note (privy to the mortgage) and other creditors (not privy thereto), parol evidence was admissible to show the true nature of the mortgage, sinoe the rule that parpl evidence'shall not be admitted to contradict or vary the terms of a • written instrument, applies only in controversies between parties to the instrument and not in controversies between a party thereto and a third person.

Ill

Of th- propositions thus laid down, the first and second are not disputed, or oven disputable. It is said however that the third proposition is not sound in law, and is in conflict with the old case of Hill vs Hall, 4 Robinson 410, where such testimony was held not admissible

Of the legal soundness of the proposition we entertain no doubt whatever, having heretofore held the same doctrine in Covington Lumber Co vs August Stef, 12 Orleans Appeals, 237 (citing 19 Cyc 749; 105 Federal 559; 88 Federal 207). In this jurisdiction its soundness is the necessary consequence of a statutory provision that even though the consideration stated in the contract does not exist, the contract is none the less valid if a true and sufficient consideration be shown. C. C. 1900.

And since the is inapplicable in such a controversy, it follows that .neither side nay invoice it.

IT.

Undeniably however Hill vs Hall is in conflict witl this dootrine. But as to this it suffices to say, that apart from the fact that this earlier case seems in direct conflict with statutory law, it must also be considered as overruled by the latter case.

April 4th, 1921.

.a.ti earlier case inconsistent with a later ono, rrast he considered as overruled*

7.

It is also said t3i.it l'ID Ra 54 is itself in conflict with a lator case, tov.it, ilo Ronald vs Hawkins, 146 to 920. But v/e do not find it so. In the later case the note purported on its face to represent a special debt, to wit, tlie unpaid portion of the purchase price, and no proof whatever was adduced or even attempted to the contrary.

Me tliinjc the injunction was properly dismissed, and accordingly;

The judgment licrain appealed from is therefore affirmed..

Rev/ Orleans to,


author: St, Paul, Juaga.

text:
    NO. 7974.
    MRS. ANTOINETTE GARDINER SCIBETTA, & HUSBAND VS JOSEPH MARCIANTE.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

St, Paul, Juaga.

On February 18th 1919 plaintiffs purchased from one Villa certain premisos, same being them subject to lease by defendant, expiring July 2oth 1919 but carrying privilege of renewal for three years. Which premises have been leased and occupied by defendant for many years as a grocery store and residence; and are just aoross the street from premises which plaintiffs have also long occupied as a grocery and residence.

On the premises occupied by defendant was a stable or shed in which defendant had at first kept a horse-drawn i d'livery wagon and afterwards a motor-driven delivery wagon; all with the full knowledge and consent of Villa, his landlord; and likewise to the knowledge of plaintiffs who succeeded to.Villa's rights under theéíétí lease. Also, under the same circumstances and with the same publicity, defendant had for a while permitted a friend to house therein (without charge) an automobile, for a few hours daily whilst he was busy in a neighboring market.

Five weeks, day for day, after their purchase, and without the least warning to defendant, plaintiffs filed this suit to annul the lease on the ground that the tenant had violated the terms thereof,,1. By using the premises for a purpose not intended, towit, as a (public) garage, and 2. By keeping on the premises an automobile, thereby increasing the rate of plaintiffs insurance.

I.

The ground first stated is of course so clearly untenable, that it was not even mentioned in brief or argument. Vie will notice it no further, confining ourselves to the second ground only.

XI.

We pass lightly over one very likely answer to this seconi ground; viz, that asxdefendant kept an automobile in th^premises with the full knowledge and consent of Villa, it follpws that it was intended in the lease that he should have the right to do so; for the manner in which a contract has been executed by one party with the express or implied consent of the other, furnishes a good rule for ascertaining their common intent and hence their mutual rights thereunder, C. 0. 1956. Hensw Villa himself could not have been heard to oonplain that defendant’s act increased the rate of his insurance; since as to Villa, defendant had a right to keep the automobile on the premises, and Villa should himself have paid the 'rate of. insurance applicable under the circumstances. But granting, perhaps, that plaintiffs might not be bound by this, because it was not a matter of record; nevertheless it evidences that defendant was fully under the belief that his right to keep

an automobile was an acknowledged one ; and 'thus to say the least, plaintiffs should have notified him to the contrary before resorting to the harsh remedy which they now seek to enfores.

III.

But the fact is that plaintiffs have no right to that harsh remedy under the circumstances of this case. It may he- conceded that when a tenant knowingly and wilfully violates an obligation of his lease not to put anything into the premises whereby the insurance is firfeited, he may be expelled. And this is all that was decided in Mo Kell vs Knapp, 18 An 701. For although it does not appear from the report of the case that defendants actually knew that by their act the insurance would be forfeited; nevertheless such must have been the fact, unless we assume^ that our own jurisprudence is out of harmony not only with that of other states but even with natural ecj&ity itself.

But such is not the case; in this state, as every where else, forfeitures are not encouraged by the oourts, and will be enforced only when the right thereto is clear beyond a doubt both of law and fact.

Lawrence vs Penn Hut Insc Co, 113 La 87 (92) Fitzpatrick vs Mutual Aid Insce Co, 25 An 443 Evans vs Grand Temple, 11 Orleans App ### 52 Morales vs Regnerde, 8 Orleans App 253.

How the universal Jurisprudence throughout this country is, that where a contract is breached by accident or mistake a forfeiture will not be enforced on that account, especially where compensation in money would afford full and adequate relief to the party complaining.

And here we may observe that if defendant reimburses plaintiffs the extra premium which they paid, and which we understand he would long since have reimbursed had he been allowed to do do; then plaintiffs would be fully and adequately compensated.

X'/.

The general rule, based upon ample authority is thus stated in the note to Smith vs Mariner, 68 American Decisions 73 (85).

"Forfeitures are not favored; and courts hsKB strongly in favor of granting relief from sjtch a harsh measure for the termination of contracts x x x, (This is almost always the case where the breach of contract is appreciable in money and again "In many cases a defaulting party will be entitled to relief against forfeiture by reason of special circumstances, where relief would not otherwise be granted. Thus (even) though an agreement is not measurable by pecuniary compensation, yet if a party is prevented from performance and incurs a forfeiture by reason of.surprise, ignorance not wilful, unavoidable accident or fraud, equity will interpose to relieve him upon his making compensation or other equitable reparation as the case may require."

March 21st, 1921.

In Mactier vs Osborn, 146 Mass 399 (15 N. E. Rep 641) the lessee had agreed to insure in a certain manner, and the lease contained the usual olauses of forfeiture for breach of any covenant thereof without notice or demand» The lessee inadvertently insured in a manner different from that agreed upon. And the court held;

"The result of the authorities, supported by sound principle is, that x x x where there has been a breach of covenant to perform some collateral duty, such as to repair or insure, which has-been caused by accident or mistake, equity will relievo, if the lessor can bjr compensation or otherwise, bo placed in the same condition as if the breach had not occurred."

The doctrine of this case was reaffirmed in lundln vs Schoeffel, 167 Mass 165 (46 N. E. Rep 900) where the breach was active, though slight, but had ocourred bv mistake and bot wilfully.

The Judgment appealed from is therefore reversed, and plaintiffs demand is now rejected at their.cost in their both courts; reserving #$# right to claim and recover of defendant the extra insurance premium paid by them,

Judgment Reversed,

Row Orleans la,


author: DINKELBPIEL. J.

text:
    THOMAS STONE. .VS. CRESCENT ENCAMPMENT NO.1 ORDER KNIGHTS OF TEMPERANCE (IN LIQUIDATION)
    No. 7975
    COURT OF APPEAL. PARISH OF ORLEANS.
    DINKELSPIEL. J.
   DINKELBPIEL. J.

This matter comes before us on exceptions.

Plaintiff avers, that defendant, an incorporated body of vrhioh he v as a mamber, did, on February 1930, under an act of dissolution, appoint and elect liqui- . -dators; that said Liquidators had charge of the property of defendant, and after sale the sum derived from the property belonging to defendant corporation, in whioh he claims to have an interest as a member there'of of one undivided frxl share,notwithstanding his membership, refused to acknowledge him as a member of the Crescent Encampment No. 1, of Knights of Temperance, whilst he claims to have been a member for many years; that he regularly paid his dues, tendered payment thereof in the usual manner in which payments were made to said corporation, and that notwithstanding this fact he was suspended or dropped from it's rolls during the month of October, 1919; that all tenders of dues were refused as well as reinstatement, the other members of said defendant corporation desiring to keep membership in order to inorease their prorata in the liquid-tion. Going on further, in his petition, plaintiff claims that he was never legally removed from the roll of membership and therefor entitled to full restoration of his rights and to participate in the liquidation of the corporation, but the Liquidators and defendants have done everything in their power to prevent his membership therefore to virtually confiscate what belongs to him as well as the other members of the corporation in the property in the hands of the Liquidators, and he finally prayed for judgment against said oorooration in Liquidation for the sum of One thousand or les3 dollars,/or the equlvolent of one member's Interest in and to the amount of money eventually to be apportioned among the members of said corporation, in good stanching, and finally for legal interest from judicial dem- and and for costs.

To this petition there were two exceptions filed} first. i*Bxl±3iaxpBíis 11s pendens and, second, no cause of action},finally on the trial of these exceptions the Judge of the lower Court ordered that both the plea of lis pendens, filed Liar oh, 34th. 1930 and the exception of no cause of action, filed April, 15th. 1930, be maintained and plaintiff's suit dismissed at his costs; hence this appeal.

Be cited. Hiller vs, Taylor, 114. L. 883. Davis vs. Arkansas Southern Railway Co. 117 L. 320-323. Dullut vs. Mc. Mannus. 37. A. 800. Hillard vs. Taylor. 114. L. 884. Borah vs. O'Neil. 116. L. 672. Improvement Co. vs. Crasser. 119. L. 264.

The judgment appealed from is therefore annulled, avoided , and reversed, and the cause reinstated on the docket of the District Court, and remanded for further proceedings with the right reserved to plaintiff to amend his petition , and with the right reserved to defendants to take such further action, either-te by exception, or orh rwise a3 the nature and facts of the case are allowable. The costs of this appeal to be born by defendant, appellant, and tne costs otherwise to await the final determination of this case.

-Judgment P.ever3ed and Pe.sanded-


text:
    JAMES MC. COY. .VS. MISS ROSE MARY CONLEY.
    No. 7976.
    Court of Appeal. Parish of Orleans.
    DINKELBPIEL. J.
   Plaintiff claims that defendant is indebted to him in the full sum of $185.00. for oash loans made to her from time to tiae. Defendant has not paid, notwithstanding amicable demand, and paays for judment..Annexed to the petition is the account referred to, begining October, 1st. 1918, Cheok, $60.00. January, 18th. 1919, $100.00. January, 18th. 1919, cash paid to mother, $5.00. and May, 37th. 1919, $30.00.-total $ 185.00.

To this petition defendant filed an exception of no cause of action, and also an exception that the petition was too vague, general and indefinate, both except ions being overruled, defendant in her answer asmits that she is a femme sole of full age, a resident of the City of Hew Orleans, and that she borrowed from plaintiff the sum of $185.00.; specially denies that she is obliged and obligated to pay same to plaintiff at this time".

Further answering, she says; " That she borrowed the $185.00. when she was minor, that plaintiff had been an old friend of her deceased father, and at the time said loans were made to her she was without means, but had an interest in the succession of her father in the State of Florida, which was under administration ,xr. and which defendant expected would be closed after she - had reached her majority; that at the time of said loan she was in necessities circumstances, and it was agreed by and between her and plaintiff that the said $185.00. was to be paid plaintiff out of any funds that might accrue to her out of the succession of her father under administration in the State of Florida, when said suoc ession was closed.

Without substantially quoting and reiterating precisely, and in terms, the sum and substance of the entire answer Is nothing more or less than has heretofore heen set out. Henoe, she parys that plaintiff's suit be dismissed at his costs.

It would serve no useful purpose to inject intb this record either the testimony of plaintiff, or defendant, much less the letters that passed between the parties at the time when their relations were most friendly. We have made a oareful examination , not only of the testimony but all the letters written by both parties, and we have no hesitation in oomlng to the conclusion that we have arrived at from reading both letters and testimony and making a oareful annalysis, and that oonvlnoes us that plaintiff did loan to defendant, as stated by him in the account annexed and sworn to and also in his testimony, at various times and dates the $185.00. sued forj-and whether paid to the mother , or defendant, both txuaxsad admitted by defendant to be true. Defendant has shown every desire to be honest, to be trughful and her narative convinces us of that fact, but she has pledged herself to pay the obligation, and there is nothing exhibited in the pleadings and the testimony of defendant whioh speaks otherwise. The loans made, at the time made, bore no evidenoe of •waiting for a settlement of the succession of tfca her father to pay same, or the funds to oome to defendant with whioh to pay same, nevertheless, plaintiff at one time offered to have defendant draw drafts on the Executor of her father's succession to pay him out of the fund to be due her ami from that succession in Florida, and defendant refused to sign, reasons best known to herself, and it is not for us to do anything except to give the facts.

The Judge of the lower Court gave no written reasons, but ordered that there be judgment herein in favor of plaintiff and against defendant in the full sum of fl80.00. payable b'. , out of the share of the defendant in her father's estate, or succession, now under administration < i the S-cate of Florida; dsisndaaixiBxpaj: plaintiff to ,-j all C0Jt3.

There was error in this case and we shall amend it. It is now ordered, adjudged and decreed, that the judgment of the lower Court be, and is hereby amended to read, a judgment in favor of plaintiff against defendant for the full sum of $185.00. with legal interest from judicial demand, and for costs of both Courts.

-Judgment Amended and Affirmed-


author: St. Paul, Judge,

text:
    NO 7979.
    ORTMAN W. CRAWFORD VS W. D. HINES, DIRECTOR GENERAL ETC?
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPlAIOH.

St. Paul, Judge,

This is an action for ‘the value of a horse killed by a railroad train. Under the provisions of act 70 of burden of proof is on the defendant to show hat the killing ## or injury was not the result of fault or carelessness on their part" This however does not mean that-railroad companies are insurers of the stock which may be killed by their trains; and it suffices if they show that they have exercised suoh caution and vigilance as due regard for the rights of others would require under the oiroumstances of each case. Mongogna vs Illinois Central R. R. Co. 115 La 595.

The trial judge thought that the testimony of a single witness would not suffice to establish a defense under the act. But aside from the fact that we find two witnesses, v/e cannot accept this proposition as sound in law; for neither this statute nor any other fixes the number of witnesses necessary to establish any fact unless it be a contract involving more than JfOO (C. C. 2277), or a claim against a deceased person brought more than one year after the decease. (Act 207 of 1906). Renee no court can fix any such arbitrary standard; and u/ a witness ^either to be believed, or not believed A

The testimony of the engineer, who is coroboxnted by tha fireman, is to tha affect that ha saw tha horse near tha tract and apparently in a position of danger; whereupou he slowed down until his train wsb under oomplate oontrol. But that on arriving within about 50 feet he saw that tha animal was on the outside of a short rail, with a rope around his neok and apparently tied. Whereupon ha thought it safe to prooeed; hut in point of fact the horse was not tied, and came around the rail, hacking into the rear end of the "tender".

We are of opinion that the conduot o.f the engineer was not negligent. When the horse seemed in a position of danger, he took the proper steps to avoid an accident} and when there seemed no further danger, he then wont forward. We have twice already held that since it is tha duty of an engineer or motorman to keep a lookout "forward", he has performed his full duty when he passes safely the apparent point of danger, and cannot he held responsible for what ooours behind his hack. Scariana vs Railway Co, 14 Orleans App. 16; Laing vs Railroad Co, 10 Court of App 96. Nor can he ho held responsible whan something wholly unexpected happens even ahead of him. Bensburg vs Terminal Co, 11 Orleans App. p. 1.

March, 7th, 1921.

in the ease at bar the engineer had reached a point where the animal was appar-j.it safe even if it had not appeared to be tied; and the engineer was justified in going forward, unless we are prepared to hold that ha should have descended from his train to drive the animal to some undefined distance from the track; which we are not prepared to hold. We think the accident was unfdrtunate but unavoidable.

The judgment appealed from is therefore reversed, and it is now ordered that plaintiffs demand be rejeoted at his oost in both courts.

Hew Orleans la,


author: —DINKELSPIEIj. J.-

text:
    MRS. BRIDGET CATANZARO EDEL. -vs- ANDRY REALTY COMPANY (LTD).
    NO. 7980.
    COURT OF APPEAL. PARISH OF ORLEANS.
    - dihkelspiel. J.-
   —DINKELSPIEIj. J.-

The issues involved in this matter are altogether of fact and the law quoted from Civil Code, Artioles 404 & 410, together with oitation of authorities by appellant affords no relief, and in our opinion, is absolutely without force and have no application to the question involved.

The facts as recited in the record are; plaintiff claims, that on the 1st. of May. 1911, she purchased from the Egania Realty Co. a certain lot of ground, described in the petition, for the sum of One hundred dollars, ten dollars payjale in cash and the balance in monthly payments of' five dollars each; she has paid all of the balance except thirty-five dollars; that the aforesaid mentioned Realty Co. went into the hands of a Receiver, that T. Walter Danziger, who was Receiver of the Company, had been frequently tendered the $35. in question, but had always refused to accept dame, and to make title to her of the property; that subsequently and during the receivership she took a rule upon the Receiver to show cause why he should not be compelled, on the receipt of the money, to make title to the property; that before the rule could be tried the company was taken out of the hands of the Reciver and changed it's name to the presnet Andry Realty Co.; that they held title to said property in the name of said company.and continue to hold same. That she was always ready, willing and frequently offered to pay the balance due to said company, but was unsuccessful in doing da so Hence, she pacaya prays for judgment against defendant company, either to deliver to her title to the lot, as prayed for, within thirty days from the finality of the judgment rendered by the Court below, upon payment of $35.00., tne balance due, or in the alternative she prayed, for judgment in her favor for the sum of $215.00.together with legal interest, for oosts and general relief.

To this petition defendants filed exceptions, first, that the proceedings are barred by law, beoause plaintiff avers, that Court proceedings were instituted by her against the Receiver of the Egania Realty Co. which was the former name of defendant company, on December, 37th. 1913, and that she has suffered more than five years to elapse since then without prosecuting her claim, and therefore barred by the lapse of five years; and, second, pleads that the petition shows no cause of action.

The exceptions being overruled, and reserving the benefits thereof, defendant, admitted that the rule taken on Danziger, Receiver, was had, and there was no trial of said rule because of subsequent liquidation and the purchase by the original company by defendant of the property in question and all other property. And also pleads, as in the exception, that the lapse of five years barred recovery.

Subsequently a supplemental answer was filed reiter -ating the allegations of the original answer, and goes on, quoting a part of the original act of sale to plaintiff, which reads; 11 That should the purchaser fail to make two consecutive monthly payments, it considered, shall be/as the abandonment of her interest in this contract and it shall become forfeited".

And, alleging that plaintiff failed and neglected to make the conseoitive monthly payments called for by said contract, and by the express provisions of said contract, her rights therein to the funds paid by her has become forfeited, and which forfeiture the company specially pleads in bar of plaintiff rights; and that plaintiff should pay the taxes on the lot, made the subject of the contract, for the year 1911, and not >hx-havlng done do all rights of plaintiff were abandoned and this being a speculative suit should be dismissed.

This cause was tried on the 9th. June, 19201-Testimony was taken, and Mr. John A. Woodville, Counsel for plaintiff, objection first having been made to any evidence being adduoed in support of plaintiff's demands, because of the allegations of the answer, the exceptions and the amended answer, filed, and whioh objections were overruled and a bill of exception reserved.

On the trial the follows admissions were madej- " It is admitted, that the contract sued upon, dated May, 1st. 1911. signed by the Eganla Realty Co. H. S. Robert, President, and the plaintiff herein, was exeou -ted on ths date set out in the contract, and the signatures to the' contract are genuine.

" It is further admitted, that the eleven notes drawn to the order of the Egania Realty Co. signed by plaintiff, filed as part of the patltion, together with the reoeipts for ten dollars by said company, dated May, 1st. 1911, were executed in accordance with the oontraot heretofore offered in evidence, and with the sixty-five dollars represented by those notes and the receipt for ten dollars were paid to the company, the last payment having been made on the 18th. March, 1913, as shown by the receipt written aocross the Note No. 11.

” It is further admitted, that in the suit No, 100,180, Division, 'D', of this Court, judgment was rendered on the 8th. of April, 1913, appointing T. Walter Danzlger, Receiver; that on the 34th. December, 1913, plaintiff herein, took a rule on the Reoeiver to compel him to make title to her on this lot of ground on her paying the halanoe of $35.00., the offi oers of the company not being parties to the rule, only the Reoeiver.

" It is further admitted, that before the trial of this rule the oompany was taken out of the hands of the 30th Receiver and by judgment signed on the BSih, of May, 1913, the Reoiver was discharged.

" It is also admitted, the Andry Realty Co. limited, id now the defendant, under a new name, it having been taken by the Egania Realty Co. Limited, by amendment of it's oharjjer. *

In connection with the admission and Mr. Woodville'S testimony, the original oontraot referred to signed by Roberta, President of the Egania Realty Co. Limited, and Mrs. Bridget Catanzaro Edel, has Mr. Robert’s name on one aide of the contract and Thomas D. Flynn, Secretary and Treasurer on the other side of the paper contract, with offices No. 1010 Hibernia Bank Building, and where the notes paid by plaintiff in this suit were paid at the offioe referred to from time to time.

The testimony of Mr. Woodvillo shows nothing beyond what the admissions prove.

Mr. U.1 Marlnonl, a witness for defendant and one of it's Attorneys, testlfied:-

Q- You have heard the testimony of Mr. Woodvllla, and as ynu are a Lawyer, just state to the Court what occurred in reference to this matter of your own knowledge?

A- I did have several interviews with Mr. Woodville about this matter. He is right when he states that we had several conversations about the majrjter. On of the questions, however, which we were never able to clarify was of the prior payments, or, that is the reolpts which have been offered in evidence in thie case, and there never hae been any sufficient proof nor evidence shown me that this money was ever really paid over to the Andry Realty Co. As t4 the question of the mortgage referred to by Mr. Woodville, he evidentily did not recollect that I explained to him the modus operand!, as to the cancellation of the mortgage, which is made in all these oases by the Whitney Central Trustaad and Savings Bank, acting as Trustee in the matter on behalf of the mortgage creditors. So the mortgage itself oould not be any impediment as to any sale, because the purchase price being turned l&xiutd over to the Whitney Central Trust and Savings Bank as Trustee, they at once issue a partial release of mortgage ooverlng that particular piece of property, and that is the way that releases are being made and are still being made to this day. There never had been a tender made to me of the balance of the purchase prioe, or to any of the officers of the company to my knowledge. Nor have we waived any of the provisions contained in the oontraot that has been offered in evidence."

" Admission- It is admitted, that the lot in oontraversy is now worth sum of $350,00."

An examination of the Agreement fed Sell and admitted to be the original, together with the first payment made and the subsequent notes by plaintiff establishes all the facts as alleged by plaintiff in this cause as tru, and the admissions together with the aot in question prove beyond controversy plaintiff's rights to the property in question, or the amount of it's value at the time this suit was filed.

It is unoontradiotsd, that plaintiff has always been ready, willing and anxious to pay the balance due the company of $35.00.but aha would not pay it until aha got title to the property for after the company had received $65.00. of her money it went into the hands of a Reoeiver and ehe was justified in wanting title made when she paid the balance due it, $35.00.; and it is undeniable that during all the time that elapsed, pending the Receivership proceedings, and finally the taking of the property in question by the present defendant, that everything possible that could feave been done was done by the Attorney in this case to pay the amount due to the parties in plaintiff was interest, but unsuccessful and/in naxAna no wise to blame, henoe, all the authorities cited by appellant could have no possible bearing and have none.

For the reason herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court, be, and the same is hereby affirmed. Sksiat Defendant to pay costs of both Courts.

-Judgment Affirmed-


author: Dlnkelsplal. J.

text:
    PETER BIVONA. *VS* JULES OR GUILIANO FONTANA.
    NO. 7981.
    COURT OF APPEAL. PARISH OF ORLEANS.
    Dlnkelsnlel. J.
   Dlnkelsplal. J.

This litigation arose originally in proceedings before Division, 'B1, where an attempt was made to oolleot from the Administrator of the Succession of Frank Fontana a claim out of the proceeds of a fund derived from the Benevolent Order of Druids in which the deceased, £xk Frank Fontana, waB a member at his death, in accordance with the laws and regulations of that institution, was entitled to the sum of $500.00., and that was the entire amount of all of the funds the Administrator, Char--le# Papini, had in his possession.

This aocount was opposed by the present plaintiff, and from a judgment adverse to his contentions, an^ appeal was taken to this Court under the No. 7404, and the judgment of Division, 'B*, was affirmed with an amendment, that opponent, as a creditor, was recognized as such for the amount of his claim, and it was there held, by this Couri that the death benefit provided by the Order of Druids, under the constitution of that beneficiary instutution, under the laws of this State, and under it's own laws, was exempt from debts of the deceased, and his family were the only parties entitled to receive the benefits thereof? Citing Act No. 88 of 1916 and Act No. 189 of 1914.

That judgment beioming final it is attempted kaa here, to oolleot, by writ of attachment, on the grounds, that deceased being a non-resident, and a citizen of the Kingdom of Italy, and oweing to plaintiff the sum of $986.98; that his succession had been opened in the Civil District Court, and plaintiff had been recognized as creditor of said succession in the aforesaid sum hy a judgment of the Court of Appeal, and there being no assets in the State from which to pay plaintiffs said olaim with interest and costs, they being wholly due and due and unpaid; and further, that the deceased posessed real atstza estate situated in the Kingdom of Italy and other property, which property and effect had been taken possession of by one Jules Fontana claiming to be a brother of the deceased, Frank Fontana, and as such had assumed the quality of heir of said Frank Fontana, deceased, purely, simply and unconditionally, and is therefor, under the law, liable for all debts due by the deceased and specially to plaintiff as aforesaid, and being a non resident, he, plain-tiff, was entitled to a writ of attachment,and garnishment proceedings were had. against U. Marin -pni and Charles Papini, and they were ordered to answer interrogatories, under oath, cgtagorioally, and in writing, within ten days after service, as the law directs.

On motion to dissolve, it is alleged, that plaintiff had obtained the writ of attachment without petition and citation, without a sworn affidavit, upon the allegatiov\that Jules Fontana , mover, is absent and. therefore unrepresented in this State, and that the said writ of attachment was wrongfully and improperly laxwtt issued, for this: 1. that in the proceedings entitled Succes-sion of Frank Fontana, No. 133.335, of the docket of the Civil District Court, there was offered and admitted in evidence on the opposition of Peter Bivona, plaintiff, to the account filed by Charges Papini, the duly legalized power of attorney of said Jules Fontana, and vriiich power of attorney was recognized by the Court of Appeal in the same succession, Ho. 7404 of it's docket; that in the said proceeding the Court of Appeal decided; 3.- that the money sought to be sequestered herein form no part of the estate of decedent and cannot be liable for it's debts. There were other grounds for dissolution of this attachment and garnishment proceeding, which it is unnecessary in our opinion, to make note of.

The other garnishee, U. Marinoni, Jr., virtually in an exoeption urged the same plea as well as other pleas, which for the purposes of this case, it is, in our opin-ion, unnecessary to take cognizenoe of, but pleads by way of exception, that this Court, "is seized of knowledge of the decision of the Honorable, the Court of Appeal in the Succession of Frank Fontana, and pleads res adudlcata as between the parties herein".

The account filed by the Administrator,proves beyond preadventure, that the only funds in the State of Louis--ina and in the Parish of Orleans, or elsewhere, is the one arising from the Order of Druids, of which the deceased had been a member, in the sum of §500.00., and which under the rules and laws of the Order, and under the acts of the Legislature of 1914 and 1916; the latter act being Act 88, and section 1, quoting that portion only which applies to this case, reads; " thav -che proceeds or avails or dividends of all life, inoluding fraternal and co-operative, health and accident insurance shall be exempt from all liability for any debt except for the debt secured by a pledge of policy, or any rignts under said policy that may have been assigned; or any advance _,ay snt made on or against said policy."

That aot was a re-enactment of Aot 33 of 1914, which 'exempts," the avails of all life, including fraternal and oo-operative, health and accident insurance, shall he exempt from all liability for any debt, except for a debt secured by a pledge of said polioy, or any rights under said polioy that may have been assigned, or on any advanced payments made on suoh polioy".

In the matter of the Succession of Josephine Porter, No. 7887, Court of Appeal, the syllabus there reads;- * An appellant may be said to have no interest in his appeal only when he cannot benefit by any change in the Judgment from which he appealed."

In the body of the same opinion, the Court, goes on to say; "The issues here presented is the extent to whioh the proceeds of life insurance policies are exempt from liability from debt in this State. The deceased held two policies upon her own life, payable to her estate, and she was the bensfioiary under two other polioies upon the life of another person, who dies a few days before her.

"The prooeeds of all four polioies -were collected by her exeoutor, after her death, constituting une only assets in his hands, and certain creditors claimed the right to participate in the distribution in preference to the universal legatee?"

Then the Court, goes on; " And although life insurance made payable to the executors, administrators or assigns of the assured, forms part of nis esate at his death, nevertheless exemption of the proceeis or avails from all life insurance from liabilty for any debt,(except a debt secured by pledge or assignment of the polioy) by the Act 1SS of 1914 is not merely a personal exemption in favor of the assured, but enures J;u z'.i í houof l t,f i:io heirs i..t l-v/, and exempts the proceeds or avails of life insurance .:¡dáe ¿.payable to tne executors or assigns of the assured. from liability of ais debts ur the debts of .'.is succession at his death." Succession of De Blanc, 142. A. 27.

And f.rt.r.r. the several policies in that case were on f. e life of the deceased and payable" to his wife if alive, if not, then to his executors, administrators or assigns, subject to the right of the assured to o'nanre the beneficiary . After the death of his wife the assured cha ape’3 the beneficiary as to seme of the policy and made that payable directly to his estate; otherwise he left unchanged. Eut the exemption was applied equally to all the policies". The docterine of that case was approved in the Succession of Clements, 146. L. 385.

Ic the 13. Court of Appeal, 'page 371, Succession of Alexander iiobery, the syllabus so far as applicable to this case; " such benefits for/:' no part of the estate of the deceased.

Therefore, from these authorities, and from the acts of the legislature, and from the character and nature of this case, it would be futile to attempt a decision of the many fine points presented by Counsel on both sides, it will be sufficient to state it will.be time to decide these when they properly arise.

In the case of Newman vs. Baer. 50. A. 323.-"Neither the law nor the courts are to be used as instruments to work injustice. To attempt this is to aggravate the offending" **■*'■ "Complete jurisdiction includes not only the power to hear and determine, jut the power to enforce the determination; and as Courts are adverse to the exercise of authority which they axe 'unable to vindicate by process, will usually decline to exercise a jurisdiction, intended to be complete, which falls short, in the latter respect" State vs. Forth American Land Co. 106. L. 621.

" It is the function of courts to deal with actual issues. Those which may arise will not be anticipated. The grounds urged in the present case are not of such character as to permit of enforcement of the law in it’s entirety". Duffy vs. New Orleans. 49. A. 114.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lo-wer Court be, and the same is hereby affirmed, with costs of both Courts.

(Judgment Affirmed)


author: By his Honor John St. Paul.

text:
    NO. 7982.
    STATE, EX REL, PENROSE RADOVICH VS JOHN MINEO, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINIOJS

By his Honor John St. Paul.

Relator seeks by Mandamus to compel the Recorder of *St ^3 St it Mortgages.to cancel Ml UmeriptloR from his records a certain building- contract entered into between the Relator as owner and the Respondent (Mineo) as builder. The contract in was entere^ into and recorded-August 1917; respondent then proceeded regularly with the work until January 191R, when he ceased working and was formally put in default. At that time he had been paid all but $400 on account of the contradst. of which $200 was afterwards paid out b'- bis order and for his account.. The Relator then finished the building at a cost which exceeded $200. i>o that the respondent has been paid all that was due him under the contract; and there were no liens recorded against the building at any time. This writ was applied for^ Apr 11^19 20.

I.

It is contended that Mend aims is not a proper remedy, hee-use the Relator has other means of redress, towit, an ordinary action.

But under the Code of Practice (Art 8S1) "This *<Uc^u!L ¿¡6l, ^discretion of the judge, even when a party has other means of reRief, if the slowness of ordinary legal forms Í3 likely to produce such a delay that the s. x x administration of justice will suffer from it."

3ut since the judge is vested with discretion to isát>e the \vr*t vtfieo applied for, it is clear that Ti© has also discretion to recall it when in his opinion tv^ 5°su?s presante'3 by t,v« return are such that they can, he tried more advantageously in the ordinary w¿y. And this is all tV t w?s decided in Koulet vs Acme Lumber Co, 115 La 897 (896 )

2ut there-is no such o°se g-esnntod ^«re. Aslator has shown in a speedy and convincing manner thnt tv© respondent abandoned, the work and has been paid all that is due him under the Contract; and that no óth«v liens ‘Ka.ve heen recorded against the pronerty. cCas&dfoot' . Soo-&o/

u.idev f^e circumstances, to relegate "elstor to the Tctp and te<Hov.c process of an oM(’i:i»r?r '-ction, v/it> Ms prop-'^ty tied :*•■* in the mcy-v-Mi^, vov.id M e d«ni?i of justice purely ^n* Mm^iy,,

II,

^s to Act P.G'l of 1916, vT* are clearly of opinion that wMti it is shown (as it is here) that the contractor h^s hese pcid in full *he amount of hirs contract, and that no 'Mens hove hc^r- rpcorded within 45 df ys after the building has heen ac^pted or contractor dnf"/uited the ov.nor then has r. right te ho^c the inscription of t’*e conirc-et crno'‘?i^'5; for the ov-w"’ is clearly "an interested party,"

February 7th, 1921.

[There nas mentioned in the pleadings and in the argument s claim for extra work amounting to :;'17fi, eaid to have heen recorded against the property long s.ftervvards; hut as relator has not asked the cancellation of this inscription, and respondent has asked no judgmenl therefor, we are of opinjon that p*>np is not involved here in.

[The judgment apnea led from seems to us correct, and accordingly

Judgment Affirmed.

Hew Orleans ha,


author: Dlnkelspiel. J,

text:
    Mrs. A. Bridgeman vs. Star Realty Co.
    No. 7983.
    Court of Appeal. Parish of Orleans.
    Dinkelsnlel. J.
   Dlnkelspiel. J,

Plaintiff sues defendants representing that the latter held themselves out as agents for the sale of a pieoe of property in the City of Waveland, Mississippi, and on September 37th, 1915, obtained the signature of plaintiff to an offer for the purohaser of said property.

That it was stipulated in said offer that the sum of $800.00 should be paid in oash on a oertain date; that subsequently to the time fixed, Ootober 15th, 1915, plaintiff oalled at the offioe of defendants and informed them that she was unable to obtain $800.00 oash but would be able to pay $500.00 oash.

That thereupon the said defendants informed plaintiff that $500,00 as a oash payment would be satUfaotory and relying on theit statement obtained from plaintiff a deposit of ten per oent or $170.00 for the purohase of said property.

And petitioner further avers that it was her intention to abrogate and that she did abrogate the first negotiations looking toward a tentative agreement whioh oalled for a payment of $800.00 oash and substitute therefor a seoond agreement oalling for a oash payment of $500.00 and that on the representation of said defendants that $500.00 would be a satisfactory oash payment, she was induced to make the payment of $170.00 as the deposit in oonneotion with the sale.

Alleging further that subsequently the owner of the property refused the oash offer of $500.00, stating substantially that her agents had no authority to negotiate the transaction on a basis of a $500.00 oash payment and said owner in the presence of two witnesses at Bay St, Louis, Mississippi, on October 30th, 1915, when petitioner had gone to Bay St. Louis for the purpose of completing the sale, the owner refused to complete sale, announcing that she was not satisfied therewith.

Plaintiff avers further that upon this refusal she withdrew from the said transaction and announced her intention to canoel and annul any and all agreements or negotiations with reference to the purchase of said property and that the owner acquiesoed in said cancellation and alleging that she has made amicable demand upon the defendants for the return of the $170.00 without avail and that her signature to the document obtained by the defendants wasprocured by misrepresentation, she was entitled to recover the amount of said deposit from defendants.

Wherefore she prayed for judgment.

Defendants in their answer substantially admitted that they were a corporation doing business under the name of the Star Realty Company.

They denied that they obtained the signature of plaintiff under misrepresentation for the sale of property in the oity of Bay St. Louis, Mississippi; that they held themselves out as agents for any suoh property, but they did hold themselves out as agents for the sale of five and three-quarters aores of land, home, barn and so forth in Oainsville, not one mile from Nich ollson Avenue Station, Mississippi", and that they obtained the signature of plaintiff to an offer to buy the land for $1700.00 and that said offer stipulated that in the event of acceptance, plaintiff was to deposit $170.00 on aocount of the purohase price and her failure to oomplete the terms of the offer, defendants commissions on the sale, attorney's fees and costs of court for enforcing collection was to he paid by her and defendants further say that said offer was accepted by the owner of the property.

That the offer and acceptance was that $800.00 should be paid in cash on a certain date and that plaintiff promised that she would pay that sum On the date of the settlement of the sale of her property which was 3313 Marengo Street in the City of Hew Orleans and further represented that the said property had been sold and that final settlement would be made not later than October 13th, 1915 and that balance of the purchase price waB to have been payable at the rate of Twenty Five Dollars per monthj but instead of the $800.00 which should have been paid under the oontraot, plaintiff alleged that she would prefer to pay $500.00 which defendants offered to submit to their principal and do everything in their power to get her acceptance. They further admit that plaintiff made the deposit of $170»00 for the purchase of the property in question and insisting that plaintiff was bound by her written oontraot and not having complied therewith, the money, $170.00, was the property of their principals.

Wherefore they prayed for a dismissal of plaintiff's suit and for Judgment in their favor.

It is unnecessary and it would serve no practical purpose to quote at length, the testimony of either the plaintiff or the defendant, Schmaltz.

In many respects they do not differ and whilst they are notabsolutely in ha,rmony, one with the other, yet there is sufficient to Justify the belief that this contract whioh in evidence was modified as regards the cash deposit, the original agreement being that plaint-tiff was to pay $800.00 in cash and the modification was that she was to pay $500.00 in cash.

It is further positive and not MpoMM that plaintiff went to the defendants, Informed them of her inability to pay,at the time agreed upon, more than $500.00 in cash and then defendants stating that that would be satisfactory and would be acceptable to their principies, plaintiff paid ten per cent of the $1700.00 or $170.00 to defendant with the understanding and positive agreement that she was to go over and take possession of this property and to arrange for giving her notes for $35.00 each to represent the balance of purchase prioe.

Believing these statements to be true and acting on same, she sold out all her furniture and other belongings in the City of New Orleans and went with her family, over to Bay St. Louis, there to carry out her oontraot; she went to the Bank and in the presence of the owner of the property and the President of the Bank she tendered the balance of the $500.00 cash payment and was ready and willing to sign the notes as agreed upon for whatever was due to the owner; these notes were actually prepared and signed by her in the presence of the President of the Bank when the principle refused and declined to acceed, and oalled the transaction off, cancelling all her obligations, refused to go one step further in the matter. Plaintiff immediately phoned to New Orleans to have Mr. Schmaltz, one of the agents to oome to Bay St. Louis in order to effect sale but he failed; she returned then to Hew Orleans and demanded the return of the money which she had deposited, same being denied her.

Defendants have not aooounted for this money either to their prinoiple or to plaintiff. Hr. Schmaltz testified^ that he has this money in bank in the Oity of Hew Orleans, awaiting the decision in this cause.

His Honor, the Judge of the Court aq.ua/saw and heard the witnesses and had a much better opportunity than we had in deciding this case.

He did so in a very able written opinion in which virtually he condemned these defendants, believing as we do that there was fraud praotioed on this plaintiff by misrepresentation and that she is entitled to the return of the deposit.

"The nature of the oontraot is that which characterizes the obligation whioh it creates." Civil Code, Art. 1841.
"When parties misunderstand each other there is no oontraot." 42 Ann. 107; Pittsburg & Southern Coal Company vs. Slack & Company.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of tbs Court aquo be and the same is hereby affirmed.

-Judgment Affirmed-


text:
      NO. 7985

      NATALE MAESTRI VS LA. RAILWAY & NAVIGATION CO.

      STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   OPIHIOH,

St. Paul, Judge.

Plaintiff seeks to recover for the death of four out of a carload lot, and for medical care of the

others, due to alleged neglect and ill treatment during transportation; towit, that they were confined in cars during illegal and excessive periods without unloading for rest, water and food; were given unsound, impure, unhealthy food and water whilst in transit; and permitted to partake of other dangerous and unwholesome substances.

fherais some conflict in the testimony as to whether the mules were made sick by something they had ea'ten in the eouise of transportation, or because of having been allowed by defendant to drink excessive quantities of water after being unloaded; and the preponderance of the evidence indines to the latter.

But, be that as it may, the evidence shows that whatever the cause of the death and sickness of these, mules, it was not due to any fault or negligence of the defendant.

I.

The mules were loaded at Alexandria la, by^TJ. S. Government Agent, and after thirty-six hours confinement vrare unloaded at Angola,la. into clean stock pens, where they were fed with hay of the best quality, given the purest Artesian water to drink, and rested full twenty four hours. They ware than reloaded and delivered to the consignee (plaintiff) at Hew Orleans, la, within the next thirty six hours; the whole being in eaaot accordance with the terms of the hill of lading and in strict compliance with the ÜZ&vrvn&i^ui*’ regulations of the Interstate Ocamissicn and State Railroad Commissions.

II.

This much disposed of, the gravamen of plaintiff’s complaint is that, the mules becoming hungry whilst confined in the cars, ate of the straw which had been placed therein as bedding or foot-hold for the,animals, and which had become foul with their urine and excrement; whereby they contracted ptomaine poisoning of which they sickened and some died.

In the first place, the evidence tends to show that fhe jHHHHf fresh urine and excrement of mules, who are purely gramnivorious, do not contain ptomaines, which are formed only in putrefaction; and that such urine and excrement will not putrify even in a much longer time than four days, especially when constantly exposed to the open air.

And again, the fact is that the oars were so bedded by the shipper, and not by the defendant; and with material generally used for that purpose. So that the defendant could not he at fault; for if there was any negligence therein it was the shipper's and not the defendant's; but indeed there was clearly no negligence at all under the eiicum-stances.

March21st, 1921.

There can therefore he but one point about which a question might possibly arise; viz, whether or not the bedding should have been changed by defendant iron time to time as it became more or less foul. But the negative of this proposition is doubly apparent in this case. I. The voyage here was a short one, and it is not shown, nor does it seem reasonable, that in so short a voyage, it is either necessary, or' eustomary or feasible to olean out stock oars and renew the bedding, and 2. The regulations of the Interstate Commerce and State Railroad Commissions require that shippers of livestock in oar load lots (as here) must themselves care for such shipments in transitj and are entitled to free transportation for that purpose. So that if these mules did not receive in transit that degree of oars which plaintiff seems to have expected, he has only himself to oomplain of for not having accompanied the mules personally or hy an employee.

The Judgment below was for defendant and seems to us correct.

Judgment Affirmed.

Rev/ Orleans la,


author: St. Paul, Juaga.

text:
    NO. 7986.
    JEAN ODOBERTO VS U. J. VIRGIN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOJJ,

St. Paul, Juaga.

On September 12th, 1921 plaintiff borrowed on mortgage from Hiss Katie Rehm, the aister-in-law of defendant, the sum of $750 for one pear at 7;j interest. Por six years thereafter she nade no demand whatever either for the capital or for the intorost; hut just as the note was about to prescribe she suddenly foreclosed upon it, and plaintiff was obliged to pay her in full the principal and all accrued interest, together with attorney's fees and costs, the whole amounting to $1183.56.

Plaintiff here alleges fin substance) that up to the moment of said foreclosure, he believed that said note and mortgage had been extinguished in accordance with an agreement entered into between himself and this defendant, by whioh The latter undertook to care for said note in oapital and interest out of the wages whioh plaintiff was then earning in defendant's employ; but that defendant although retaining said wages, had failed to apply -.v part thereof whatever to the reduction of said note. Wherefore plaintiff asks judgment for the amount of wages earned, and also for the attorneys fees and costs which he had to pay, said fees and costs amounting to $118.55.

X

Defendant pleads the prescription of three years «>1 if plaintiff were suing simply on an opon account. But such is not the casa hora; on the contrary this action is essentially one for damages and founded on a Breach of contract; to-v,'it, that defendant accepted from plaintiff u mandate to pay over certain monies f(v- account of plaintiff, hut failed to do so, whereby plaintiff suffered a loss which is measured in part hy the amount of the account.

But there is yet another reason why prescription cannot avail in this case, and it is this; that whenever one party has hy his course of conduot lulled another into the belief that his rights will not he jeopardized hy any inaction on his part, the former is thereafter estopped from taking any advantage from such inaction.

Uc. Djtffy vs \7alk6r, 125 la 152; Burdeau vs Dorsey, 7 Orleans App 554, ECO. And since in this case’ defendant's agreement to pay the '.vagos over to the holder of the note lulled plaintiff into the belief that his wages were in effect hoing paid regularly, and thus induced him to refrain from claiming them, it follows that defendant cannot not take advantage of his own failure in order to defeat plaintiff's claim; for prescription did not run as long as WH plaintiff usa being thus misled.

IX.

Coming now to the main feature of this oase we believe that all the circumstances thereof show that defendant did make some agreement to apply plaintiff's wages toward the extinguishment of his note. I, The very faot that defendant's sister-in-law did not ask even for her interest, and that plaintiff never did even as much as ask for his wages, is alone very signifieiant of some understanding of that sort. 2, plaintiff testifies that before the year was up he went to defendant saying, "lou owe me some money; I want to pay Miss Eatie the interest on the mortgage";, to which defendant replied, "John, dont get uneasy; I'll fix everything up. Dont make any had blood; I’ll fix her up." And defendant admits, "I said that I ■ ould see that she got her money."

III.

Por the rest Vie must hold strictly to uhe rule of law requiring that plaintiff make his case certain.

if Defendant admits that plaintiff attended to his garden for several years before the storm of September 1915; and it is certain that plaintiff worked there in September 1912, when the mortgage was given. But the ### evidence as to whether plaintiff worked there after 1915 too is entirely conflicting to stand as the basis of a judgment in favor of plaintiff, especially in the iaoa of an adverse finding by the trial judge.

Z\ Defendant admits that the rate of pay was $16 pei* month for the summer months (March to September) and $0 per month for the five winter months (October to February), making $152 per year.

3. Defendant admits that he owes plaintiff $15 for cutting the grass in June 1916; and does not seriously deny that he also owes $52 for 26 loads of earth at $2 per load delivered in 1916.

4.* Defendant claims that in April 1913 he settled in full with plaintiff to May 1st 1913; and supports this

by a check given to defendant, which reads that way. v7e accept this as a fact; for the genuineness of the statement on the check is not denied, and if genuino it is more reliebale than the memory of witnesses.

I f.

Accordingly we find that plaintiff earned wages amounting to $451, asafollows;

1. May 1913 to Sapteribor 1913...$ 80.

2. October 1913 to .September 1914. 152.

3. October 1914 to September 1915. 152.

4. June 1910, tlfi plus $E2 . 67.

,1'e therefore think that plaintiff should recover these v451. So further think that he i" . > cuftltf to get, baok the attorneys fees and costs v/hioh he paid, amounting to .¡jll8«55« For we ara satisfied that they would not have teen inourred had defendant kept his agreement; hut at any rate both the interest and attorneys fees would have been very muoh less, and any small difference will be more than compensated by the use which defendant had of plaintiffs money without interest for several years.

April 4th, 1921.

It is therefore ordered that the judgment appealed from be amended by increasing the amount allowed plaintiff to Rive hundred and Sixty-nine Dollars and fifty-five cents (■¿5569.55) with legal interest from judicial demand until paid; and as thus amended, said judgment is affirmed at defendant's cost in both oourts.

Sew Orleans la,


text:
    NO. 7988
    ANTHONY BERTUCCI VS N. O. RAILWAY & LIGHT CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

By his Honor John St. Paul.

Plaintiff suas for the loss of a mule, killed in a collision Between a street oar and a wagon driven hy his son.

She sin testifies; "When I hit Broadway and Jeanette, I looked towards the river; I seen a car coming about three quarters of a Block away, and thought that I had time to make it. I was going across the track and (again) looked towards the car, and it was coming at full speed; and I seen I couldn't make it at the speed it was coming- - for me to get clear across - - and I tried to swing my mules off the track; and at that time the car had done smashed into me. Question; ’When you noticed the high spaed of the car, how far on the track had your mules gotten? Answer; Just the forelegs on the track, and I tried to swing them over. And again: My mules wore walking. Question; And you thought you had time to cross the tracks Before the caé could get there? Answer: I would have, if the car was going slow enough. Cuestión; You could stop your mules pretty short while they were walking? Answer: I didn't try to stop them until I seen the car was going to overtake me."

I.

Quid multa? The law applicable to such a state of facts may Be Briefly stated as follows;

X. Tha rsoognized rula la that before crossing a railway track a parson should stop, look and listen; and it will not do to substituto therfor a rula to tha affeot that, being a dlstanca from a crossing towards which he and an electric or steam oar are travelling, he may than form an opinion as to which of the two will &et there first, and acting upon that opinion, assay the crossing without giving himself further concern upon the subjeot. Haabe vs R. R. Co, 110 La 970; Mc Shane vs Ry Co, 137 La 832; Mohran vs Ry Co, 147 la (84 Southern 897).

2, Henoe, the driver of a vehicle, who sees an& •leotrio car approaohlng, evan as muoh as 300 feet away, and yet without looking again drives heedlessly upon the track, and thus comes into collision with the moving car, is guilty of suoh negligence as zo bar a recovery, in the absence of evidence showing with legal certainty that 'the motorman was operating his car at a dangerous rate of speed; or, by the exercise of ordinary care after tha disoovery of the danger, could have avoided the collision. Marston vs Traction Co, 140 La 18.

II.

Accordingly the only questionsrequiring consideration are these, I. Does the evidence show with legal certainty that the oar was being operated at a dangerous rate of speed? or, 2. Does the evidneo show with legal certainty that by the exercise of ordinary care after the discovery of the danger, the motorman could have avoided, the oollision?

As to these the only witnesses who threw any light thereon are the operators of the oar, and a witness for plaintiff named Dragon; the driver of the wagon being manifestly too busy with trying to save his team, and indeed his own life, to observe closely. He does say indeed that when he saw the oar the second time it was still half a block away and coming very fast, and that then his mules had all four feet on the track, "the whole' mule was on the track”; but he had previously stated that when he first saw the car, three quarters of a block away, the dash board on which he sat was at the curh, and the wagon itself had not yet reached the roadway of the cross (double-roadway) street on which the car ran. So that this part of Mis testimony not only conflicts with his first statement, but is self contradictory. Dor if his mules were wholly upon the track, then his dashboard must have been right on the track; and in that case the car would have moved only a quarter of a block whilst his walking mules were dragging the dash board from the curb to the track. And if that be so and his mules were fully on the track, then a mere touch of the whip would have taken mules, driver and wagon out of the path of the car before the latter could,at that slow rate of speed, reach the point of crossing. And in that case he would have resorted to the whip to urge his team forward, instedd of attempting to "swing" them; which under those circumstances v/ojtld bring him bach into, instead of out of, the path of the car.

The witness Dragon testifies that he first saw the wagon when the mules were already "on the tract", ana they were then waiting. The car was then "half a block away x x x coming pretty fast", and the motorman was trying to stop the car; but it seemed that "his brake would not take". The driver "tried to get off the traok, after he saw he could not get over it"; and the car went one quarter or one half a block after striking .the myle. does not explain what he means by the mules being "on the track", but as he also saw the mules swung instead of urged forward, wo take this to mean that their front feet were on the track.

The conductor testified that he dropped a passenger one block away; that his attention was drawn by the ringing of the gong and the motorman's motions in applying the brake; that the oar was then near the intersection and the mules ten or fifteen feet from the track "coming pretty fast"; that the car was goigg at two-thirds speed, about 8 miles an hour, when his attention was first aroused; and that the car went 19 steps, about 30 or 40 feet, after striking the mule.

The ragtorman testified that his oar was going at two-thirds speed, and when he reached about thirty feet from the crossing he 3aw the wagon coming out "going as fast as the mjtles oould go". He was ringing his bell, and did all he oould do to stop the oar; that is to say "X started to apply the brakes. I had been ringing the gong, but he still came on; and the left mule struck the stanchion post, bent the brake, and knocked me to the left side of the oar." Thgt the mules were not on the ■track at all but ran into the oar; that the oar stopped 19 steps beyond the point of collision; that the oar opuld not have been stopped in less than 80 feet.

III.

Therefore, on the whole, the testimony does not show with legal certainty (to say the least) either that the oar was being operated at a dangerous rate of speed, or that by the exercise of ordinary care after the discovery of the danger, the motorman oould have avoided the collision?

The fact is that plaintiff's driver did just what he said he did at the opening of his testimony; he saw, or thought he saw, that he oould cross ahead of the approaching oar, and tried it but missed; and fortunately missed by a margin Just sufficient to save his orm life.

May 2nd, 1921.

The Judgment appealed from is therefore reversed, and it is now ordered that the plaintiff's demand he rejected at his cost in both courts.

Judgment Reversed.

New Orleans la,