author: BY: VTIH1MI A. BEffi, JUDGE:

text:
    KANSAS FLOUR MILLS CO. versus LOUISIANA RAILWAY & NAVIGATION CO.
    NO. 8257
    COURT OF APPEAL PARISH OF ORLEANS
    WIIilAii A, EBEi, JUDGE:

   BY: VTIH1MI A. BEffi, JUDGE:

Plaintiff sues defendant for loss suffered through damage to certain shipments of flour, aggregating 2,000 bags, while same was stored in defendant's flour-warehouse, in the City of Her Orleans, during leas than a month, approximately from the middle of August to the middle of September, 1917.

It is alleged that after the flour ras stored in the warehouse of the defendant railway company, same became infested with bugs and weevils , then and there existing in said warehouse, contrary to its contract of carriage, to safely transport and warehouse said flour upon its arrival in Hew Orleans.

The petition first alleges that because of the weevilly condition of the flour, the consignees refused acceptance thereof on arrival, but by subsequent stipulation between conns el and before trial, it was agreed to as a fact, without necessity of amended pleading or proof, that the consignees had simply failed to call for the flour. It is finally alleged that tie flour v;as sold at the highest price that could be secured, resulting in a loss to plaintiff of $983.41.

Defendant admits the shipment, and final warehousing of the flour; avers that upon refusal of the shipper, or consignee, to take possession of the flour on its arrival, or to receive it within reasonable time after its arrival, defendant's responsibility as a common carrier ceased, and thereafter it v/as only liable as a public ware houseman, and in said capacity received and unloaded the flour into its warehouse, a place which was entirely free from insects of any kind. It is further averred, however, that on or about September 8, 1917, long after delivery of the flour should have been accepted, and while defendant was holding the flour in his capacity as a warehouseman, little brown bugs, in sufficient number to attract attention, began to appear in the warehouse , vfithout any fault or neg'ligence on the part of the defendant. Further answering, defendant denies that any weevils appeared in the warehouse, or infested the flour, and avers that the bugs which did appear did not bore through the flour bags, or enter the flour, except in so far as they might have entered through apertures already existing in the flour bags. It concludes its ansvfer with the statement that it did all in its power to exterminate the insects, which apparently did no damage to the flour, and that in the same warehouse where plaintiff's flour was stored, there were many other shipments of flour for other parties, and that no complaints were ever made by anyone else that said insects had caused damage to their flour, at or during the time when plaintiff claimed damage to have been sustained to its flour.

The issues in this case are as simple as the evidence adduced at'the trial. The whole contention is that the defendant, as a warehouseman, received plaintiff's flour in a warehouse infected with weevil, in violation of the contract between it and the plaintiff covering an agreement' for safe carriage and warehousing.

It is admitted by defendant that the warehouse wherein plaintiff's flour was stored was infected during the time when the flour in question was under the custody of defendant, a3 warehouseman, but it is particularly denied that the condition existing was through any fault or negligence of the defendant. This is the whole issue in the case,whether aa? the weevilly condition of the flour began while same was in the warehouse of the defendant company,and whether defendant was in any manner liable for the condition, if same existed.

From the evidence in the ease it appears that defendant not only substantiated the allegations of plaintiff's petition that the flour in question was infected with weevil,but through its own witnesses substantially proved this fact, by offering in evidence a bottle containing certain bugs or insects found in the flour, or around the sacies, and in the warehouse. This exhibit has not been brought before the Appellate Court, but the evidence shows that the many v-itnesses, both for x>laintiff and defendant, to whom this bottle v:as exhibited, declared the insects contained therein to be the common weevil, such as appears in flour,

The plaintiff has conclusively j. roven that the flour when shippe0 irom its mills in Kingman, Euns&s, was freshly milled and carefully loacteu into cars free from any weevil infection. V/e are satisfied from the evidence the t the weevilly condition of this flour arose while in defendants warr,~ nouse at How Orleans, but a most careful v.oi.'hinr of all the testimony in this case has not convinced us that the condition of the flour resulting in its sale at a loss to plaintiff,va¿ such a condition as arose, or could have arisen, from the fault or negligence of the defendant, Defendants liability can only arise in this case upon specific evidence, the proof of which under the conditions of this case, must be assumed by the ¿iuii-■ciff, that the cause of the weevilly condition ot tho flour arose through some act of omission or commission on the part of the defendant, under his liability not as a carrier, but as a warehouse man.

The first theory of defense by which tho warehouseman in this case has first sought to avoid liability, seo'-.s from the pleadings to have been predicated uAon tho all uat5on that the plaintiff’s goods we re contaminate ^ or «nfocted by Insect life arising in the warehouse, beyond tho fault or control of the defendant, irom the evidence, ho* ever, admitted without objection, defendant finally 3ought to prove, upon foots well established, not only by his own witnesses, but those of his adversary, that the flour in question, at the time of the year under which the storage arose, vas inherently susceptible to generating spontaneously the bugs or eevils found in such 1 .rr*' quantities in plaintiff’s flour. If, throurh no fault of defendant, the condition in th? flour crose from so"c natural 'uujeo inherent in the goods themselves, or from atmospheric conditions well known to exist by all the parties to the contract, it cannot be charged by the plaintiff that the defendant was at fault.

®h@' testimony shows, without contradiction of any witnesses of either plaintiff or defendant, that it is the inherent nature of flour, in southern climate, during the months of August and September, to generate insect life, first through the worm, and then through the woevll, or after-insect life of the worm.

10 this effect, one of defendant's own witnesses, for thirty or forty years a flour expert, testifies that regular flour worms oome from hot climate, and will produce small insect life, and afterwards, both bugs and worms, and that •ifeis condition was found in the flour in question. Another of plaintiff's witnesses states that these bugs and worms were found 3fn the flour, little worms, particularly,, after the bags were opened up, and a third witness of five years experience in the flour business, and who, with the second of plaintiff's witnesses was the ioint purenaser of the defective flour, when sold as such out of the warehouse, corrooorates these facts by saying that the bags were found full of bugs and worms and weevils, and that little bugs on the outside and around the bags were found, and that worms six inches deep in the sacks were also found.

She largest consumer of flour, as a baker, in the City of ¡Ter Orleans, and one who has bean engaged in the business for over forty years, and whoso bakery business consumed as much as sixty barrels of flour per day, established beyond doubt that flour, in warm climate, is subject to the weevil pest, and as stated by said witness, these insects or weevils "grow in the flour," or aa another witness for defendant said, "they make it their home«”

Tie find from the evidence, therefore, that in the flour itself, was the worm in question, and in and about the flour bags and the varehouse, vas the weevil, arising from the flour worm. It is true that one of defendant's witnesses ape-o if ioally stated on cross-examination, that the condition found in plaintiff's flour should never arise in new or fresh flour, less than five weeks old. Ihe flour in this case appears to have been shipped from the plaintiff's mills within less than five weeks before the weevilly condition thereof was discovered, and from thi3 faot it my be presumed that the flour was not infected at the time of shipment, but the burden of proof has not been assumed by plaintiff, upon whom it rightly lie3, to establish the faot that the inherent tendency to spontaneous generation of insect life arose through any fault of the defendant. Prom the evidence of the experts, it must be assumed, in the absence of proof to the contrary, that the defendant had no control whatever over these conditions.

Heither carriers nor warehousemen are liable for damages to goods in their care occasioned by exceptional and uncontrollable events, when they could not have avoided the consequence of these events by the exercise of due diligence. Ihe carrier is. howevor, burdened with the duty of showing, when goods are damaged while in his custody, why and how such damage arose, and that it was due to such causes as would exonerate him, the owner of such goods in such oases being only required to allege the loss or damage arising to hi3 goods while in the custody of the carrier.

On the other hand, the warehouseman is a bailee for hire, and as such, is only charged with the observance of such oare as a prudent man would give to his own property. If it can be shown that as warehouseman, he has failed to exercise such oare as a reasonably careful owner of goods would, under similar conditions, exercise, then the liability must be assumed by him, and proof of his inability to avoid the damage arising, becomes a burden which the law places upon him, and not upon the owner.

plaintiff's counsel oltes many authorities by this Court in support of the dootrine that the warehouseman, or bailee must exercise that care which devolves upon a prudent man who would give protection to others^ as to Ms ov;n goods, while in his possession, bait none of these authorities undertake to establish the dootrine that such liability arises as against a warehouseman when the goods in his custody are, of their own inherent nature susceptible of causing damage or defects, over which the warehouseman, under the closest exercise of care, cannot avoid.

Counsel for plaintiff in argument stresses the point that the.burden of proof rests upon a bailee for hire, to establish such facts as might excuse him, and to show that he exercised at least the care that a prudent man takes of his own property. We take no issue ?;ith counsel as to this well established doctrine in support of which he has cited the case of Scott v. Sample, 148 Ra. p. 627. In that case, as in the instant one, the bailee failing to deliver the goods in such condition as existed when they viere received by him, the Court held that the burden devolved upon the bailee to show that the goods in question, which rere damaged by fire, were not damaged by any fault or negligence of the bailee. But after this defense was offered by the bailee, whereby it was attempted to establish that the cause of the damage was through some agency beyond and outside of the bailee's control, the Court held that the burden then shifted to the shoulders of the bailor to prove that this outside cause of the damage could have been avoided by the care of an ordinary prudent man. The dootrine is thus stated:

"It is true, as shown by the authorities cited by plaintiff, that where a bailee fails to return property entrusted to his care, he bears the burden primarily, of showing why he has failed to do so. But, when he has shown that the cause was due to destruction of the bailed good3 by fire, the burden again shifts to the shoulders of the bailor, to show that the fire (contrary to the oa3e of a common carrier, inn-keeper, etc.) was By the bailee's negligence."

In the instant case, defendant has proven to the satisfaction, no aoubt, of our brother of the lower Court, and certainly to our satisfaction, that the Sarape to the flour in question was due to an agency inherent, spontaneous, or what-not, oyer which defendant had no control. Shis defense being the one finally offered by the bailee, it devolves upon the plaintiff in this case to prove that the ciroumstances leading to the defects in the flour were caused by imprudence of the defendant oompany.

The conditions under which the liability of a warehouseman handling goods perishable or inherently defective, would become liable therefor, are stated with clearness in 40 Enc. of Lav/ and Procedure, pp. 472 - 473, as follows:

"A warehouseman to whom goods are delivered in good condition, is prima facie negligent where the goods are returned in a damaged condition, only when the good3 are of such a nature that loss or damage could not ordinarily have occurred without negligence, and the rule does not apply where they would deteriorate or perish from inherent defects or natural causes.
The burden of proof, in an action of injury to the goods due to improper temperature is upon plaintiff to show that the injury resulted from defendant's fault alone, and not from the inherent nature of the goods."

We find this doctrine clearly and particularly cited in the case of Cunningham v. Pranfclin Reed & Co,, 48 Ga., 631, where the Court said:

"The warehouseman, by the law, is a depository for hire, and is bound only for ordinary diligence. If the defendants exercised that ordinary diligence in tahing care of plaintiff's ootton stored with them, which a prudent man would have in protecting and talcing care of his property, and the ootton lost in weight, without their fault or negligence, they are not liable for such loss, and it was incumbent upon the plaintiff to prove that the loss of the weight of the cotton was the result of negligence and want of care in the proper, management of it. It ‡3 not sufficient for the plaintiff to prove that the ootton stored with the defendants lost in weight, but he must go further, and prove that the loss resulted from the negligenoe and want of proper care on the part of the defendants as warehous emen."

May 10th, 1922.

In Creaoent Forwarding and Transportation Co., v. Row Orleans Box Manufacturing Company, 6 Orleans App.,41*2, this Court held that it was elementary that tho burden of gnqof is upon the bailee, to show oau.se that the, injury to, or loss of the thing- stcfred v/aa due to no faul't. or negligence of his, but as shown in the oa3e of Scott v. Sample, above «noted, and other well considered authorities, the doctrine is olear that where perishable goods, or goods which may be inherently defective, or may become so through their inherent nature, i-.re damaged while in storage, negligence cannot be assumed from the ere fact of the damage, but the negligent acts or omissions causing- the damsc-e must be affirmatively proven. Patterson v. Wenatchee Canning Company, 101 Pao., 721.

Tie are of the opinion that plaintiff has failei in carrying the burden rightly placed upon him by the law, to prove that the defects in the property under bailment were, in this oaso, due to any lack of observance on the part of defendant of that degree of care required of it as warehouseman, or bailee.

In addition to the abundance Of iroof established herein by both plaintiff and defendant, that the weevilly condition of the flour was caused by its inherent nature , induced by local atmospheric conditions, it seems that no contamination could have, in all probability, arisen by other flour in the warehouse, because defendant has shown conclusively that during the month of August, and half of September, many thousand sacks of flour of many other dealers were stored in the warehouse - in question, without complaint from any of said dealers or consignees that existed conditions in their goods similar to those found in plaintiff's goods.

We find no error in the judgment of the lover Court.

JÜDGU5RT AFFIRMED.


source: Caselaw Access Project

author: Dinkelapiel; J

license: Public Domain

text:
    NO. 8260
    COURT OF APPEAL PARISH OF ORLEANS
    LEON GODCHAUX COMPANY LTD. versus GEORGE SLADOVICH

   Dinkelapiel; J

Plaintiff institutes this suit against the defendant, claiming an indebtedness due plaintiff by defendant, in the sum of $415,00 with legal interest thereon from June 30th, 1915.

The suit is that defendant occupied offices in the Godohaux Building during various months of the years 1912-1913 and other offioes in the same building at different times, amounting in all to 1415.00. That the amounts claimed are past due and notwithstanding amicable demand are not paid. Alleging further that the said rental is not prescribed for the reason that defendant has acknowledged in writing that he owed the same, as per letter dated August 11th, 1915, signed by the defendant, and which letter is filed with and annexed to the petition and made part thereof. Wherefore ple-intiff prays judgment for the amount of its claim, with interest and costs.

To this petition there was filed an exception of prescription of three years, which being overruled on the 14th of Bovember, 1918, in Division "E", the case having been allotted to Division "D", an answer was filed which denied the alleg-tions of plaintiff's petition and asserted that the question involved wss not one of fact but of lave, admitting that he wrote the letter annexed to the petition, but avers that the claim of plaintiff is prescribed and hsxhxsxa that plaintiff has no right to recover and prays for judgment.

Subsequently the case wes celled in Division T" of the Civil District Court and there defendant plead that the exceptions pending before the Court had not hern properly disposed of and had never been waived or abandoned. The Court ruled th t said exception wes r.ct well founded and ordered s-me tc be overruled, nd on the trial of the merits of the case, svidenoe and pleadings were offered, amongst which was the letter of acknowledgment, admitted by the defendant to be his handwriting and his letter, together with a statement of the actual account between plaintiff snd defendant, which included a check for $75.00, signed by the defendant, made payable to plaintiff,and at the bottom of this chefik was stated "check to be for rent;1 which oheok was not paid, and was annexed and made part of the petition.

There was also offered in evidence, an itemized account showing the amount of rents claimed by the plaintiff and the exceptions xafEizatoisfaiBS of jurisdiction in the original Court, Division "E" again submitted to the Judge of Division "D", who ffixssx overruled seme and after hearing the evidence both oral snd written, judgment was ■rendered in favor of plaintiff for the amount of its claim, with interest and costs.

And the question presented for decision is, whether or not having failed to notify properly, the Judge of Division the os.se had been allotted to "E", of the fact that/Division "D" of the Civil Distriot Court but /jiaskáy having filed an answer in Division "E", the whole subject matter was properly before the Judge of Division "D", who rendered the judgment in this case and from that judgment there is this appeal.

The authorities are uniform fend to the following effect:

"A party who relies upon an exception dilatory in its nature, although arising from the forde of the prooeed-ings, must specially plead his exception and point out the particular defect upon which he relies.
Soott, Carhart & Company vs. Sarah E. Jackson et als, 12 La. Ann. 640.
"After a cause has been at issue nine years it is too late for the defendant to plead an abatement.
Lafon vs. Riviere, 1st Martin N. S. 130.
"Dilatory exceptions mast be pleaded in Heine lites.11
Howard vs. Steamboat Columbia, 1st La. 417. Otto Knoop Lumber Co. vs. Durning, 10 Orleans Appeals, 312.

The case having been tried, judgment rendered, we see no error in same.

For the reasons assigned it is ordered, adjudged and deereed, that the judgment of the Court aquo be and it is hereby affirmed, costs of both Courts to be paid by the defendant.

-Judgment affirmed-


author: BY: WIBIIAH A. BEIL, JÜDG2

text:
    MRS. MILRED O'CONNOR, versus JOHN RAWLINS
    NO. 8263
    COURT OF APPEAL PARISH OF ORLEANS.
    NIIHAM A. BRED,JUDGE:
    June 5th, 1922

   BY: WIBIIAH A. BEIL, JÜDG2

Defendant is sued herein as heir and legatee of his deceased sister, Hiss Mary Caroline Rawlins, whose suc-'eessioa he is alleged to have accepted unconditionally. Plaintiffs petition, filed on llovemher 23, 1920, alleges that on June End, 1914, the deceased purchased at public auction, certain real estate, duly advertised in the newspiapors of this City, and reading as follows:

"Ilo. 1127 Felicity Street; lot 66 feet by 136 feet, and 101-foot common alley in rear."

The evidence shows that Hiss Rawlins reached the auction exchange just shortly before the property was offered, and that she saw a large, five-foot plan of the property, upon the Auctioneer's Stand, which she could see at a distance, though she was not close enough to read carefully the -dimensions thereon, because of the crowd, and that si e relied entirely upon the newspaper advertisement as above set forth, fhe ¿,lsn offered in evidence, as well as tire proce s-verbal of the auctioneer, shows the description under which the adjudication was publicly made, and which was read in a loud voice before the sale, is a3 follows:

"30ID THIS DAY, at public Auction, at the Real Estate Exchange, ITo, Sil Baronne Street, by order and for account of 2333 NARY EAVDIia
A certain portion of ground situated in tho First District of this City, with all tho buildings and improvements f croon, and designated by tie municipal number 1127 Felicity street, in s guare bounded by da;,p , Haga zinc and Grange 'streets; said lot .neesiures 66 feet, 5 inches 6-l/S lines front on Felicity Street, by a depth on tho side lino towards la-.,p Street of 101 foot 2 inches 4 lines, tlccco a width in the rear of 30 feet 6 inches, thence a further de^tt towards Orange Street of £ foot 4 inches 2 lines, thc-neo a further width in tho rear of 26 feet £ ino es, and a depth on tho side line towards lle.-e.-c: no direct, from Felicity Street to: arde Orange Street of 138 foet G inches and 2/3 lino, tit! ’.he use of a common .'..lloy in the roar — sold to
na. i:.::. o'o crinen .j?ei? the 'sum StgRt Hundred Boll*r#.-;f$48eb «efab'óp ' th®' ■foOlowtBg' ’ ’
TEEMS:- One third -'or- inore. casli,':íffll'é&w6-Í&! one «na two- years* 7 per cant per '■ annum Interest andpurohaser pays taxes for' 1914. Shis property is a old sttb jeot to lease expiring September 30, 1914. Act of sale before -F.J, Breyf ous, Esa., JTotary Eub.lio; at acense 'Of purohaser'.'
Hew Orleans , Ja, June 2nd,' 1914 ó
(Signed) C.A, Tessier,
AUCTIONEER.

Immediately after the sale, the purohaser made a deposit of $600 for whioh receipt was given, reading:

"Ho, 1861 Hew Orleans, June 2,- 1914.
Eeoeived; from Mrs. M.M,O'Connor, the sum of Hive Hundred Bollara, on aooount of purchase of the property 1127 Felicity St., adjudicated to her at Public Auction on this day, for the sum and prioe of Forty-Bight Hundred Bollara, as per prooess verbal before F.J. Breyfous, Hotary Public; to whom this receipt must be surrendered as part of the purchase prioe.
$600.00 (Signed) C,A«Tessier & son."

The testimony of the purohaser shows that she declined to accept the property sold her, or to sign the deed tendered to her, claiming the dimensions of same to be different and less than what she believed she had purchased. Her evidenoéf is confusing as to her exact interpretation of the advertisement, and after oareful examination, we are inclined to the belief that the real gravamen of her complaint was the fact that the space on the Camp Street side of the house purchased by her was not sufficient to permit proper or convenient access by the steps leading to the entrance of the house on that side. The pertinent parts of her testimony on this subject appear as follows;

"Q, What did you thinh the 101 feet meant?
A. Well, there used to be a little alley
Q» You do not mean that you thought that alley was 101 feet deep.
A. I did not see the alley at all.
Q. Mr, Jonea aaid that the aaverii semen t wag misleading, now the advertisement saya 138 feet and 101 feet. Row, I. want to hnow what you think ia wrong?
A. If I had known T never would have bought the house with the steps out off.
Q. It is the steps you are Oomplaining of?
A. I am oomplaining .that I did'not get 138 fee.t by 66 feet and the steps are out off."

The faots show however, as soon as this onm-plaint was registered with the owner, that plaintiff waa offered, but deolined, thirty-seven inohes additional property off'of the lot adjoining, and lying contiguous to the Camp Street side of the property sold, in order that entranoe could be made from that side of the house. .It further appears that as- soon as thi3 offer was deolined, the |B00 deposit was promptly tendered, a fact admitted hy her as follows:

"Q. Mr. Eessier offered you back this five hundred dollars?
A. Yes, sir.
Q, Almost immediately?
A. Almost immediately.
Q. As soon as you would not take title he offered the five hundred dollars back?
A. Yes, sir."

ye are unable to gather from the evidence, that plaintiff wholly relied upon the more or less indefinite descrip-, tion of the advertisement, for she admits, on cross-examination, that she knew all about the property when she bought it, living "next door" "at the time" and "for a number of years" before she bought it. If the advertisement was in any way misleading, i+ cannot be questioned that from plaintiff's long acquaintance with the location and surroundings of the property, as well as the unavoidable knowledge of the diagonal direction of Felicity Street,that the measurements desoribad as ’flol-fbot" oould not have applied to the common alley but only to the property-line measurements parallel to and nearest Camp Street,

We are inclined to the views of the trial Judge as expressed in his memoranda opinion, that the description as given in the advertisement, would have Justified the enforcement of speoific performanoe, but that plaintiff's refusal to either take the property or insist on its tender abrogated the adjudication,

She defendant responds to this suit by exceptions of no cause of action, and prescription of one, three and five years, all of which were referred to the merits by the Judge a quo, and answering defendant pleads that he cannot be made personally liable; that the property in question never fell into his sister's succession for the reason that same was sold in June of 1918, long prior to her death, in September, 1920, and that he never knew of plaintiff's elai* until amicable demand for the payment thereof was made upon him shortly before the institution of this suit, in November of 1920; that in any event, should he be held liable for any part of this claim, which he specially denies, that same should be lodged against the Succession only as an ordinary claim, subject to privileged debts, mortgage, etc., all in accordance with an orderly administration of the estate.

Agreeing as We do, with the conclusions reached by the Judge a quo, that the salé to plaintiff was entirely abrogated by her, with the result therefore, that there was no sale, it follows that plaintiff must be considered as never having been the owner of the property adjudicated to her. Fence, it also follows that the Í500 deposited v/ith the auctioneer, cannot be considered as part payment of the purchase price, but at best, simply earnest money, the double of which she could have recovered from the vendor under Article 2463 of the Jivll Code, but for her withdrawal from the sale.

Ilia Supreme Court, in' Etta Contracting- Company v. Bruning, 134 la., 48, roviev/ing and reversing- up.on writ of certiorari, a judgment of this Court (10 Orleans Appl. £50) has exhaustively discussed the confused and unsettled jurisprudence of this State upon the effect or not by public adjudication of automatically j/ussing title from vendor to vendee. Counsel for plaintiff has referred in his brief to the case of i jalan ey v. Aschaffenburg, 143 la. 521, and decisions therein discussed in support of authority for his contention that the deposit made by plaintiff herein must be held as earnest money recoverable under R.C.C. 2463. Vie tale no issue with him upon these authorities, except to hold that they are not convincingly applicable to the case at bar, for tie reason that in-the oiled case3, the sales were contractual rather than public or judicial. Eoiever, in Etta Construction Company v. Bruning, the Court dravs the sharp, distinction between the facts there -under consideration-, where the vendee did not refuse to comply with, but notarially confirmed the adjudication, with other and different facts, such as in 'lashburn v. Creen, 13 la. Ann. 332, where the adjudicates^ refused on demand, to comply with the sale.

In the -former oase, the Court held, reversing this Court, that the defendant's (vendee's) title originated in the adjudication, while in the latter case, interpe-ot ing the ruling- in VTashburn v. Green, it was held as the accepted jurisprudence of the Court, that in all public sales, whether judicial or non-judicial, refusal of the purchaser to comply lith the' terms of the adjudication, precluded'h.3 c ever being considered the ovner of the property sold. It is plain, in the ease before us, that plaintiff is not seeking to enforce- the sale, or to have herself recognised as the o\ ner of the property adjudicated, out the damages sought to be recovered cannot bo alio-, e-.i for tie reason that sho has barred herself from recovery of damages by her own conduct in withdrawing from tic contract, made possible of performance by the vendee's generous offer to deliver additional and sufficient property over that adjudicated. Refusal of the tender of the deposit immediately made .to hor, after her refusal to accept the deed, and the additional property, must result in a denial of interest , as elainec! on said deposit. Attorney's fees, or any other damages herein c laimed ,are not reeoverable, and must bo denied.

Rinding no liability for damages on the part of the vendee in thi3 ease, it follovs that none can attach to her succession, or those who have accepted same, though unconditionally. Me find no merit in the pleas of prescription herein filed. The action, if any, arising from th" transaction sued Upon is one necessarily ex contractu, not tortious, and therefore not prescribed in one year. The prescription urged in defendant's brief under R.0.9. £498, is not applicable, no action having- been taken hero'in for dimunition of prioo , or for can-celation of the contract on the part of the buyer.

Defendant has prayed for rejection of plaintiff's petition, at hi„ costs, and judgment has been tlms allowed, but both the evidence as ’.ell as record admissions of the defendant, show that the deposit of J'50O herein claimed has never been returned, and is still in the hands of the auctioneer. This amount should be restored to plaintiff, and the judgment of the trial court should be thus amended. In all other respects the judgment appealed from should be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be, and the same hereby is amended, by allowing plaintiff judgment for Rive Hundred Dollars 55500.00) vdthout interest, plaintiff to pay all costs of both courts. As thus amended, the judgment appealed from is affirmed.

JUDGKEHS AESirDBD AKS AFRIRIiRD.

June 5th, 1922.


author: Bí: WIIilAH A. BEIi, JUDGE:

text:
    STANLEY A. HARVEY versus MISS BERTHA LOUP & MRS. J. MARQUE
    NO. 8265
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    June 5th, 1922.

   Bí: WIIilAH A. BEIi, JUDGE:

Plaintiff sues for recovery of commissions as a real estate agent, and for 25% of attorney's fee3, incident to this suit.

It is alleged that on August 14th, 1919, the defendants, by written contract, annexed to the petition-, appointed plaintiff as agent to sell certain property, described in the petition, situated in this City, for the prioe, and sum of $4,000; and that plaintiff was to be paid, as a commission, whatever was obtained over $4,000, or, if the property were sold for less than $4,000, he was then to receive 5% of the sale prioe; that petitioner secured a purchaser of the property, at the prioe of $4,300, but that defendants refused to aooept the offer, and therefore, he is entitled to be reimbursed in the sum claimed in the petition.

The written contract of employment, or agency, is made part of the petition, and also the written offer of purchase. The terras and conditions set forth in the latter document are that the proposed purchaser offers for the property described, the 3um of $4,300, noa3h, titles and loan subject approval of the Homestead." It is further stipulated in the offer that the purchaser obligates him3elf to deposit with the agent 10% of the amount offered, on account of purchase price, to bind the sale, and as earnest money, if the offer is accepted. In the contract of agency, there is a clause to the effect that it is understood and agreed that the agent's labor shall cease when the deposit is put up, and that the commission, or difference, shall be earned and paid by the owner, whether the total of said property is accepted or rejected by the purchaser. These are the pertinent clauses in the two documents annexed to the petition.

Exceptions of vagueness, and no cause of action ware filed to the petition, and the Court a qua, maintained the exceptions of no cause of action, without giving mitten reasons therefor. There was Judgment dismissing suit, at plaintiff's cost.

Counsel for defendants has urged in argument and brief that the petition herein filed disoloses no cause of action, because there is no allegation therein that the purchaser was ready, willing, and able to.buy the property, or that the purchaser had put up a 10$ deposit.

An examination of the pleadings oauses us to differ with our Brother of the Trial Court as to the sufficiency of petitioner's allegations, and we are not of the opinion that the omitted allegations suggested by the defense were necessary to disolose a cause of action in this matter, we being of the opinion that it is a natural inference, from the allegations set out in the petition, and from the dooument3 annexed thereto, that the proposed purchaser was ready and willing, a3 well as able to purchase the property. The terms of the offer, to wit, "oash, titles and loan subject approval of Homestead" are usual conditions found in documents, or offers of purchase made in this community oonoerning real estate deals.

As to the allegation that a deposit of 10$ had been made part of the acta necessary to make the offer a binding one, on the proposed purchaser, there is nothing in the oontraot of agency which makes it a part of the agent's duty to have procured such a clause or condition of puroha3e. In our opinion, these are matters of defense which should be urged on the merits, if Justified by the facts in the case, and are not sacramental allegations, the omission of which would defeat the plaintiff's cause of aotion^^^

JUDSMEHT REVERSE¿/AMD CASE EEffiAHDED TO TEXAI COURT JOE FURTHER BSOCKBPIHGS

June 5,1922.


author: BY: WILLIAM A. BELL, JUDGE:

text:
    ALEXANDER ALAUX, versus T.P. THOMPSON
    NO. 8,270
    COURT OF APPEAL PARISH OF ORLEANS
    WIRRIAM A. BERR, JUBSE:

   BY: WILLIAM A. BELL, JUDGE:

Plaintiff herein suea defendant' upon an alleged verbal contract for the prioe of a large painting on a one-piece canvas, 9' x 16' which was to represent Bienville in the act of directing or planning the original plot or map of the City of Hew Orleans. The petition avers that defendant, on or about January 16, 1917, engaged plaintiff, an artist in the City of Hew Orleans, to execute this wort for the prioe of Two Thousand Dollars, the amount sued for; that defendant agreed to furnish, and did furnish plaintiff, in March or April of the same year, a special canvas, upon whioh the painting was to be made; that beside the artistic work necessary to the execution of the painting, the conception of its subject: "The Pounding of Hew Orleans by Bienville," entailed considerable amount of historical research, in order to correctly portray the soene, as desired by the defendant, all of whioh work was done by plaintiff; that prior to the execution of the work, or painting, upon the oanvas, plaintiff submitted to defendant various pencil sketohes, whioh were approved by defendant, all in accordance with suggestions made by defendant in the course of the work. It is finally alleged that upon the completion of the painting, same was tendered to defendant, who failed to call for same, and refused to advise or direct plaintiff as to where the painting should be delivered to him, or to pay for same, notwithstanding amicable demand.

The only defense to this suit is a denial to each paragraphical allegation in plaintiff's petition. The record, as it comes to us, however, further discloses a plea of one and three years' prescription, whioh was not considered by the judge a quo, plaintiff's counsel having successfully urged the Court to disregard sane because filed after unanimous verdict and judgment for $2,000, as prayed for. The pleas of prescription were not urged in either argument or brief3 before this Court. Exceptions not passed on in the Court below will not be considered by the Appellate Court. 140 Ea. 674; 111 la, 213; 131 Ea. 196.

the pertinent pleadings found in the record reduoe the issues in this case, upon an action ex contractu, to the clean out question of fact - whether the defendant did, or did not, order the painting to be executed by plaintiff at the prioe sued upon, the jury found that he did; there was judgment aooordingly, followed by denial of motion for new trial.

the testimony of the plaintiff, his two daughters and a citizen of undoubted integrity, composes all of the direct evidenoe in support of plaintiff's petition, their declarations under oath are clear, unambiguous, consistent, and most positive on at least one all-important fact, that is, the defendant's intention to order such a painting as was executed by plaintiff. three of these witnesses are positive and unshaken that defendant oarried out this intention by direct verbal instructions for the work to be done at the prioe mentioned, the two, and only witnesses for the defense were the defendant himself, and the Curator of the Eouisiana State JIU3eum. The testimony of defendant given under his direct £uid cross-examination, as well as his examination under Act 126 of 1908, is found by us to be uncertain, evasive, and in many instances, contradictory. While' his response to this suit is, as above stated, positive and clear in its denial of plaintiff’s allegations, the record discloses undoubted attempts during the trial of this oause, over plaintiff's protest, to change the issues in this case, and to show, though unsuccessfully, that the contract, if made, was not for himself, but for another, under an agency, neither pleaded nor proven - N.O. Brewing Co. v. Oldstein, 12 Orleans App. 323.

Plaintiff and his two daughters testify positively to the fact that on January 15, 1917, defendant called at plaintiff's studio, Shis particular visit is admitted by defendant, who claims, however, that he called on the date mentioned for the purpose of consulting plaintiff about certain other pieces of wort, among which was one he had been commissioned to order for account of the Touro-Shakespeare Alms House, a portrait of Mrs. Gumble, We quote in part from his testimony;

"Q. "You did go to Mr, Alaux's house, in January, 1917, as he states?"
A. "Yes."
Q. "What happened when you went there, what did he say, and what did you say?"
(Objection by counsel for plaintiff), xxxxxxxx

BY THE COURT:

"How state what took place on that day,"
A, "On that day we discussed the copying of a photograph which I had - - - -"

In another part of his testimony, and while under cross-examination concerning a certain manilla envelope (Reo. Exhibit "A - 1") admitted by defendant to have contained a certain photograph of Mrs. Gumble, he further testified as follows:

Q. "Do you know where the envelope came from?"
A. "When I called at the studio as stated, with reference to the picture of Mrs. Gumble, I brought this picture with me."

In subsequent portions of defendant's testimony, we find that he positively denies having brought the photograph of Mrs. Gumble to plaintiff's studio until the following month of May, but the above quoted testimony as well as that given by plaintiff and bis two daughters on rebuttal, convince us that defendant's first statement is the correct and true one, and that the manilla envelope and its contents, first came from defendant's hands into the custody of plaintiff, on January 16, ísfl’é/, not in May, as finally stated by defendant.

The incident of the manilla envelope, and the pencil endorsements thereon, would be entirely inconsequential, and not worthy of the space we have herein devoted to its discussion, if it did not serve to convince us that on the same date upon which the Gamble portrait was under consideration, that defendant planned and contracted for the painting involved in this suit, agreeing, in fact requiring, at the same time, that the work should be done on a large one-piece canvas, ultimately paid for, by and with the approval of the Board of Curators of the Louisiana State Museum. It may also be here noted that defendant's testimony as to who was the real purchaser of the canvas just mentioned, is surprisingly evasive and contradictory. On this subject he testifies in part, as follows:

Q. "Did you have anything to do with the purchase of the canvas?"
A. "nothing whatever. The canvas purchase was incidental to the fact that it was part of the painting of the pioture, and he didn't have the money to pay for the canvas , but I had nothing whatever t o do with it. I am the president of the Museum, and not the curator. I do not stay at the Museum, I go there about once a week, and Mr. Glenk brought the matter officially to my attention about getting studio room and canvas, and it was then our usual custom to help artists - -"
(Objections by counsel for plaintiff).
THE COURT:
"You can tell anything that is pertinent to the purchase of the canvas, anything you know about it."
A. "This canvas was bought by Mr. Alaux, and in fact, I would say the "Alauxs," because the daughter and Mr. Alaux painted together on the canvas. The cost of the canvas was dis-oussed by Mr. Glenk with me, and I 3aid "all right*-"
(Objections by counsel for plaintiff).
A. (continued) "At the request of Mr. Alaux, he was permitted to make use of the Museum, of which Mr. Slenk is practically manager - - the man in oharge - - the curator. I want to say that, while I am the president of the Board of Curators, they meet but once a month, and following the purobase of this canvas, we reported that we had purchased this oanvas for the Bienville picture, proposed. Ihat is all of the understanding of the purchase of the canvas that I had." x x x

Such testimony as just quoted cannot be considered as convincing or substantial rebuttal of the positive and consistent evidence offered by plaintiff to the effect that the defendant himself authorized and sanctioned the purchase of the special canvas upon which the painting was executed.

It is urged by counsel for defendant, and specially urged in brief that the greatest amount which could have been awarded by the jury or allowed by the Court was §200, the amount claimed by plaintiff when the work was ordered to be discontinued by defendant in June, 191V, and that it was plaintiff's duty to minimize his loss, if any, by ceasing his labors when part payment as demanded was refused, and when the oanvas upon which he was executing the contract was returned - as the evidence shows - from the State Museum, where the work was being done, to plaintiff's home, all, however, without plaintiff's request, authority, or sanotion.

In fact, we note defendant's brief closes with the alternative appeal "that the judgment b.e amended and affirmed by reducing same to the sum of $200." Aside from the force whioh must be given to the findings of the jury and the judgment of the trial court, as well as to the rebuttal testimony of plaintiff and his daughters to the effect that defendant particularly agreed to the advance of $200 or ten per cent of the contract price, the argument of counsel for defendant as above stated demonstrates another and final effort on the part of defendant to qualify and alter the answers or defense of general denial herein pleaded. We do not find, after most careful review of defendant's testimony, or that of his witness, the Museum’s curator, that he has succeeded in disproving the allegations of plaintiff's petition, abundantly supported by convincing evidence of a positive and unequivocal contract of employment.

It is suggested that the preponderance of plaintiff’s evidence concerning the alleged verbal contract, has been given by parties vitally interested in the suit. Whatever truth there may be in this contention, the witnesses are none the less lawful deponents of the facts, and the weight given to their testimony by both jury and judge must not be disturbed.

The surrounding circumstances of this ease are also strongly corroborative of plaintiff's case, as proven by himself and daughters. In Marts v. New Orleans Cold Storage Co., 107 La., 172, where three of plaintiff's witnesses were shown to have been interested witnesses, it Was held by the Court:

"Interested witnesses are by our law competent witnesses-, and their testimony is binding on the court, unless overcome by counter testimony, or irreconcilable with the known facts of the case."

The circumstances arising from this case, seem to us, from our appreciation of the record, to have particularly justified a trial by jury, and the unanimous verdict as rendered, should not in any manner be qualified or disturbed. This Court has held in the case of Dupre v. New Orleans, 10 Orleans App. 236, that:

May 22, 1922.

"Where the conflict of evidence is resolved against the defendant, first by a jury and again on a second trial, by the presiding judge, the conclusion will not be disturbed on appeal unless it is palpably erroneous ."

See also: Breen et ux. v. Walters et al., 150 La. — 91 So. Rep. 50.

JUDGMEHI ARJIRMER.


author: Dinkelspiel; J.

text:
      NO. 8271

    COURT OF APPEAL PARISH OF ORLEANS
    AMERICAN MANUFACTURING COMPANY versus JACOBS & LANDRY ET ALS.

   Dinkelspiel; J.

Plaintiff institutes this suit against the defendants, •a.erring thst he is entitled to recover the aum of $652*30, with interest and costs, for this to wit!

£.— That plaintiff sold and delivered the sash doors, blinds 'and house finishing materials desoribed in the bill annexed to its petition, to one Oh- rles Pfister; that Pfister used the articles referred to,in the construction and remodelling of a the-atre at Leontina and Prytania Streets in this oity; that asid Pfister contracted with Jacobs and Landry for the repair and reconstruction of property owned by Mrs, Emma Gilmore; that Mrs. Gilmore has elected to take over the buildings as remodeled and reconstructed. That Jacobs end Landry did not reoord the contract it had made with Pfister in the Mortgage Office for the Pariah of Orleans, nor did it require Pfister to furnish bond to guarantee payment for the labor and material used in the remodelling of the buildings above described; that plaintiff caused its aooount for materials desoribed, to be sworn to and recorded in the mortgage of-fioe, serving a copy thereof on Jacobs end Landry and Mrs. Emma A. Gilmore. Hence preyed for judgment against all parties with recognition of its lien and privilege.

Defendants filed exceptions to plaintiff's demand beoause of a misjoinder of parties, because the petition was vague and indefinite and because it disclosed, nc right or cause of aotion. These exceptions were overruled. Subsequently defendant answered denying the allegations made by'plaintiff in its petition, averred that it he,d contracted with Charles Pfister to remodell the buildings desori’c -d in plaintiff's petition. That Jacobs & Landry were lesee»a of Mrs. Emma Gilmore, under a written lease, with the right to remodel and reconstruct the building thereon, of which Mrs. Gilmore was to beoome the owner. That Pfister had an open ao-oount with plaintiff, made payments thereon from time to time but Which were not credited thereto; subsequently Pfi3ter failed, plaintiff separated the account, inrauted the payments to ether accounts and gaye no credit tc defendants account. Wherefore they prayed thet plaintiff's suit be dismissed,

.Subsequently plaintiff filed s plea of estoppel sgainst defendants baaed on their conduct by their silence after examining plaintiff's books end not advising it of payments made by defendants to Pfister; hence, permitting plaintiff to adjust ell other Pfister contracts and accounts with his sureties under the belief that defendants owed Pfister the full contract prioe for their work.

An examination of the testimony in this case shows that Jaoobs and Landry contracted with Pfister to remodel and oonvert the buildings leased, into a theatre for the sum of Three Thousand Dollars; the contract between Jaoobs & Landry and Pfister, ±Jts was not recorded in the mortgage office, nor was Pfister, the contractor, required to furnish seourity as the lawersquires, to guarantee payment for material and labor used in the remodelling of the buildings into a theatre; Pfister began work on the buildings, ordered the articles described Which were manufactured for and delivered to him, used by him in the converting of the buildings on the property heretofore described.

Jacobs and Landry paid to Pfister, the amount of his oontract3 in six installments, of Five Hundred Dollars eaoh, by checks found in the record: Pfister had several contracts under way while doing the work for Jaoobs and Landry; kept a bank account, deposited the ohseks of Jaoobs & Landry and when oolleoted th&se collections were mingled with other funds on deposit.

During the progress of contracts Pfister had with other persons than Jaoobs and Landry, he paid monies by cash and check and.so doing, the evidence satisfies us that he-was required by plaintiff to designate contracts^'th’a.t he. wanted credited" with monies paid, Plaintiff kept a- ledger, also an order book, in wblob ail orders wsre entered and given a number by which they were identified; these orders were delivered end the total amount of the xxdaxxw orders were debited to Pfister on the ledger account under the number given it in the order book. Payments were made by Pfister and were o'redited to the particular order or contraot designated either on Pfister's oheck or on the receipts given him for monies paid. When Pfister failed to pay, plaintiff caused its account to be attested, recorded in the mortgage office and due notioe was served on Jacobs and Landry, and Mrs. Gilmore. Plaintiff further adjusted the Pfister accounts for his other contracts,- except onewlth the surities on bond furnished by Pfister; and the first information that plaintiffá had that Jacobs and Landry had paid Pfister the amount whisk due on their contraot, was given to them when this 3uit v;-:3 brought. Defendants do not deny that the materials charged were purchased by Pfister from pls.intiff;in cxxdsxxi neither do they dispute the’prics3 charged, nor ■io'they deny that the material charged for was actually used in the converting of the buildings on the property in question.

Pfister makes no defense.

The questions for determination presented are first, did Pfister pay plaintiffs monies and direct Jacobs and Landry work be credited Tilth the monies paid them? and were the items of account separated end the monies paid credited to other contracta, leaving the whole amount due on the Jacobs and Landry work and the liability of Mrs. Emma M. Gilmore for the materials used in the conversion of the buildings on the leased ground into a theatre? The testimony shows that esoh order for material as it was given was recorded in order book together with the location of the buildings to which delivery was mxst to Sta have been made and given a number, and subsequently aide when the order was executed and after the delivery, it 'was entered into, the ledger under identical number given in the order book. The evidence further shows tfc;t Pfiater made sss several payments to plaintiff on account of his contracts and tlist he did not designate or instruct plaintiff to credit any of the payments tr-de by him, to the Isfsnáx orders for material deliver! to defendants1 theatre. Therefore it is shown that whatever peymenta Pfister nade were applied to the credit and liquidation of the amount due "on the contracts to which Pfister directed plaintiffs to give credit fer the payment; and this pfister had a right to do. The evidence also shows that after one of the dependents examined Pfister1s account at plaintiff's esfcablishmsnt and seen th-.t no payments had been made on account of thair work end discussed the matter with the Mansger, nothing further w.s said by Mr. Landry one way’or the other. Defendants desire to make it appear that part of the monies paid plaintiffs by Pfister, were monies that they h?d ptid Pfister; tmxxss The checks received were always deposited for collection and the sctu.ly cash was generally used by him to pay hie 'workmen and laborers.

,0. C. Article 3185/proviies: Privilege can be claimed only for those debts to which it is expressly granted in this Code.

There being no contraoturel rclstionship between Mrs. Gilmore ?nd plaintiff, and considering that only at the expiration of the lease sha would the improvements revert to her and Article 3343 R. C. C. specifically pexsai provides:

"Privilege on Building and Lot. The Poove named parties shall have a lien and privilege upon the building, improvement or other work erected, and upon the lot cf ground not exceeding one acre, upon which the building, improvement or other work shell be erected; provided, that such got of ground belongs to the persons having such building, improvement or other -voris: saxasnsaá erected; and if such building, improv.menta 'or-other work is. c. used to be erected by a lesees of the lot of ground, in that cuse the privilege shell exist only against the lease end shall not effect the owner."
Conroy vs. Pineville Oil Co. 143 La. 883-4.
Eureka Homesteed Society vs. Widow Gregson, 13th Court of Appeal, 234.

Our Supreme Court in the recent case of Grand Lodge Benevolent Knights of America versus Murphy Construction Company and others, being No. 23547, not yet reported, held:

"Art. 2133; the debtor of several debts has the right to direot xxiali when he mokes a payment what debt he means to discharge.11

Citing'numerous authorities.

In the. same C5,se the Court held: "yucting from in re Mrs. Julia Cowpsgno, 7443 cf the Court cf Appeal, where this Court held: A creditor of several claims against the same debtor sxii all matured, receiving payment from his debtor must, in the absence of the consent of the debtor impute the payment so made to the debt secured by privilege or by a surety in preference to one not so secured, but the debtor end his surety may enforce this imputation. And sgain, "in the ease before us no imputation has been made by the debtor and it does not appear that he consented to the imputation made by the creditor or that the oreditor had informed him cf the imputation he had. made or that he was aware of it and therefore the debtor end his surety have s. ridit to demand the imputation provided by law.

An examination of the authorities cited and those th-.t vye have herein furnished, conclusively s&Sítísi&ataií&Sií establishes that there were no contraetura.1 relationship between Mrs. Gilmore and plaintiff, and therefore the judgment against her must he ansS@¥fS,.

But, as to the contractor and the lessees, Messrs. Jacobs and Landry, we are satisfied they are liable individually and in solido for tbe amount of. plaintiff1 s claim, and tbe judgment as against them is correct.

For tbe reasons assigned, it is therefore ordered, adjudged and decreed, tbs.t tbe judgment rendered by tbe Court a-quo ageinst Mrs. Emma M. Gilmore be amnulled and avoided , and the judgment rendered against Charles Pfister, and Jacobs & Landry, a commercial firm, oomposed of M. H. Jacobs and George R. Landry, are affirmed, the said Charles Pfister, H. H. Jacobs and George R. Landry, individually and in solido, to pay all oosts of both Courts.

-Judgment amended and affirmed-


author: Dinkelspielj J.

text:
    NO. 8275
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM MAYER VS. DIXIE SECURITIES COMPANY ET ALS.

   Dinkelspielj J.

This litigation substantially oonsists oí the following facts.

Plaintiff alleges that he is the owner of a oertain automobile, describing it as "Model T. 41, Ho. 31359 (or31369) Haynes Light 13, 7 passenger", and that on the 3nd day of Oo-tober, 1918, petitioner left said automobile with the Estop-inal Auto Exchange and Sales Rooms, located at .1515 Canal Street, in this oity, and reoeived from said Company, a receipt to the following effeot.

"Hew Orleans, 10/l3/l8/
One used seven passenger Haynes 13, Automobile. Engine Ho._as is. Price $3300.00, we to have the sale of aocount this oar for the/«masut of Mr.. Mayer to net him $3300.00 and have no charge for demonstrations and storage.
(Signed) Estopinal Auto Exohange & Sales Rooms
per S. J. Estopinal"

Alleging further that whilst said automobile was in the oare of said Company, by an aot passed before M. S. Dreyfous, H. P. on September 37th, 1930, the Estop-inal Auto Exchange mortgaged said automobile together with others, to the defendant oompany, which said mort— gage ws.s recorded in M. 0. B. 1347, folio 343. And subsequently, after said mortgage was reoorded and said automobile was inventoried as the property of the said Estopinal Company, and whilst the said automobile was in the oustody of the said oompany, the defendant oompany, The Dixie Se-. curities Company executed its mortgage and caused -said automobile to be advertised by the Civil Sheriff of this Parish for sale, at public auction, on March 31st, 1931 at the hour of ten o1clook A. M.

Alleging further that the Estopinal Oompany was without right, title or interest in said automobile and was acting as caretaker of same when it received said au-vomobile from plaintiff, and it was without authority from pl-inbiii to mortgage same to said defendant corporation. Therefore, said mortgage is null, void and of no effect.

.Alleging fhet the sale of said automobile by the Sheriff will oause plaintiff financial injury by depriving him of his said property end that he h* s no adecuóte remedy to prevent said 3ale except by injunction and the prayer finally is ’ubstcntially that plaintiff upon furnishing requisite bond S3 fixed by l°w, his affidavit being considered, that a writ of injunction he issued temporarily restraining the Civil Sheriff of this Perish, the defendant Corporation, the Dixie Securitise Company and Edward B. Ellis, Receiver for the Estopine.l Company, from Gelling or otherwise disposing of said vutomobile described in his petition and vhet all parties be duly cited to ippesr end after proceedings had that there be judgment in hi3 fever deorseing him to be the owner of said automobile and os such entitled to the possession thereof.

This petition was sworn to and a temporary injunction as prayed for vías allowed, upon plaintiff furnishing bond in the sum of Two Hundred and Fifty Dollars, conditioned as the law directs.

The bond being furnished the Sheriff and the other parties, under orders of the Court, were restrained and prohibited from proceeding in Shis matter until further orders of the Court.

To this petition there w;s first filed an exception of improper joinder of parties and aleo an exception of no richt or oause of action.

Subsequently an answer was filed on behalf of defendant Sompany, which denied all and singular the allegations contained in plaintiff's petition, and alleged substantially, admitting that whilst the automobile described in plaintiff's petition was in the cere of the Estopinal Motor Company, that by act before M. s. Drey-fous, H. P. of date September 37th, 1930, the automobile in question was mortgaged, together with others, to the defendant Company for the sum of $3950.00, and the mortgage was properly recorded in the mortgage office. Finally the answer states that plaintiff is or should he es-topped to.urge the ownership of the automobile sued upon for the reason, that in the event that all of the allegations oontained in plaintiff's petition were true, whioh defendant denies, then in that event plaintiff permitted his property to remain,in the oare and custody of the Es-topinal Motor Company, a lioensed daitlasi dealer in automobiles; that he made no declaration of ownership, or caused no suoh declaration to be put of record in the mortgage offioe, but that- he waited until said property was removed from the premises of the Estopinal Motor Company and permitted the ownership of this said property to remain vested in the Estopinal Motor Company, and upon the representation made by the President of the Estopinal Motor Company, that same was the property of the oompany, and on the faith of these representations and aoquiesoed in by silence and oonduot of the plaintiff, defendant believed that said property belonged to the Estopinal Motor Company and in this belief, and as an innooent third person, advanced money to the Estopinal Motor Company, who mortgaged said property to the defendant as heretofore stated. Admitting that the said corporation went into the hands of a reoeiver end that by reason of said wrongful conduct on the part of the plaintiff, defendant was lead and induced to part with its money, and therefore plaintiff should be forever estopped from urging the ownership of said automobile to the prejudice of and detriment to defendant. Defendant prays that the demand of plaintiff be rejected with costs.

This answer was sworn to by the attorney for the Reoeiver.

This issue was tried and without entering into the testimony of either party to this litigation, it is evident that plaintiff he.s fully established his case in accordance with the allegations of his petition. - He was the owner of the automobile whioh was stored in the Estopinal Motor Company -and was to he sold by the company at a prioe agreed upon by both parties and as per receipt annexed and exhibited in -this transoript. It is proven to our satisfaction that the Estopinal Company mortgaged this property to -the defendant company, and were on the eve of selling same but for the injunction proceedings now in controversy.

The Judge of the Court aquo heard the testimony in this oase, and deoided finally, after refusing a rule for a new trial, in favor of the defendant company, dissolving the injunction and from this Judgment there is this appeal, and as stated, the question of fact being virtually admitted, so far as the mortgage is concerned and the ownership of the automobile being proven to be in plaintiff the other matters left for our determination are matters of law alone.

The Civil Code, Art.-3453.

The sale of a thing belonging to another person is null; it may give rise to damages when the buyer knew not that the thing belonged to another person.

A fraudulent sale of personal property, although followed by possession gives no right of property to the purchaser.

Weld vs. Donlin 13 La. 461.

In the oase of Lellande vs. His Creditors, 43nd Ann. 710, the Court emongst other things says:

The dootrlne that a factor cannot pledge the property of another is maintained so strictly that it is admitted he oan not do it by endorsement and delivery of the bill of lading any more than by deliver of the goods themselves. To pledge the gooda of the principal is beyond the scope of the faotor's power; and every attempt to do it under the oolor of a sale is tortious .and void.

Citing 3 Kent, p. 626.

On the question of law the dootrine is well settled that-the factor oannot pledge for his own debts property consigned to him, nor can he give it in payment of his own debts.

Citing Bonnot vs. Fuentes, 10 Ann. p. 70.

Youngyagainst Scott 35 Ann. 313.

On the same subject matter, in the case of Holten and Winn vs. Hubbard & Company et als, 49 Ann. p. 715, the dootrine in the Lellande vs. His Creditors 43nd Ann. 705, was re.terated and affirmed and application for rehearing in that case the Court at page 739 says "From an early period rur courts have enforced the principle that the factor could not for his own debts pledge the property of his principal, and that such pledge v/as no impediment to a recovery by the owner.

For the reasons assigned, it .is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby Eeversed, set aside and annulled.

It is further ordered, adjudged and decreed that the Civil Sheriff for the Parish of Orleans; the Dixie Seourities Corporation and Edward B. Ellis, Reoeiver of the Estopinal Auto Exchange, or their agents, be enjoined from selling or otherwise disposing of said automobile herein described and that 'the injunction applied for be maintained and perpetuated.

It is further ordered, adjddged and decreed that plaintiff, William Mayer, is deoreed to be the owner of said automobile, and that there be judgment in his favor decreeing him to be such owner. The costs of both Courts are to be taxed against the defendants, Edward B. Ellis, Reoeiver of the Estopinal Motor Company,and the Dixie Seourities Company.


author: CHARLES E. CLAI30HHE, JUDOS.

text:
    Charles F. Claiborne, Judge.
    EXILE KAHN VS GERTH'S REALTY EXPRESS
    No. 8276
    June 5th, 1922.

   MILE KAM VS CSHTK'S REALTY EXPRESS

Ho. 8276

CHARLES E. CLAI30HHE, JUDOS.

This is a suit for a commission for the sale of property.

The defendants were engaged in the lousiness of selling real estate. J. K.Evans was employed by them to solicit and secure auction 3ales contracts for then; he was to have a one-half interest in such sales as he secured and the defendants the other half •

It seems that the plaintiff was also in the real estate business. He was interested in some lots which the Lockport Realty Co. had for 3&le. He met ¿ir. Evans and offered to put the lots in the hands of the Gerth Company if some suitable arrangements could be made. Svan3 held himself out

"as being connected with and representing Gerth's Realty Experts".

On May 20th, 1915, he wrote to the plaintiff Kahn the following letter on one of the defendants' letter heads:

"Gerth's Realty Experts Ino.
The Greatest Land Selling Organization on Earth.
Southern Office: 302 Liverpool & London & Globe Building,
Hew Orleans.
30 Church Street, Hew York;
Stephens Girard Building, Philadelphia.
George Montgomery President; Henry Gassie, Vive-President; Allen R. Beary, Seoty-Treas.; Charles S. Gerth, Gen'l. Mgr.
Morgan City, La., May 20th, 1915. Mr. Shile Kahn, Raceland, La.
Dear Sir,
VJhet have you decided to do about the lot sale at Locknort? If you are interested i'i Laving us handle this sale for you please advise us at once as we would .Like to make arrangements to put the sale on during the coming month.
Yours very truly,
Gerth's Realty Experts Inc.
per J. H. Evans."

The plaintiff thereupon arranged an interview with Evans when they made an agreement. This agreement was confirmed by letter addressed by Evans to Emile Kahn, upon one of the same letterheads of the defendants 'company reproduced above. .The letter is as follows:

!,¿organ City, La.,Kay 27th, 1915.
hr. Emile Kahn,
Iiaceland, La.
Dear Sir:
'fe beg to confirm the offer made you by our i'r. J. H. Evans, Viz: that, for the services you are to render us in obtaining a certain contract for the sale at auction of a tract of land in the town of Lockport, La., we are to divide equally with you any net profit that we are able to make out of the deal.
Yours very truly,
Gerth's Realty Experts, Inc.
Per J. H. Evans, Rep.

Yr. Kahn then brought Kr. Evans and the Lockport Company together at Raceland, where a contract was drawn up on June 8th, 1915, between the Lockport Realty Co., represented by Prank L. Barker, and the Gerth's Realty Experts, Inc. represented by J. H. Evans, by which the Lockport Realty Co. gave to the Gerth's Realty Experts certain lots in Lockport for sale at auction on terns and conditions specified in said contract. By this contract the Lockport. people agreed-to pay the Gerth's Realty Exnerts certain commissions and certain expenses of sale, therein stated. No mention is made of the plaintiff.

In pursuance of said contract the Gerth's Eealty Experts, sold certain lots to the amount of $3076.69, andaeceived payment for the same. After deducting expenses of sale $ 217.11

and their commission 498.34

■Making a total of $ 715.45

the defendants turned over the balance to the Lockport people. On the day of the sale there ms nothing said about plaintiff's commission.

In July 1916 the plaintiff.sued the defendants for one-half of their comnission, $498.34, basing their claim mainly ' upon the letter of Evans to him dated May 27th, 1915, copied above, and upon the other features, of the deal narrated above.

The defendants denied any indebtedness to plaintiff. They specially averred

"that J. H. Evans is not, and was not its representative at ány time, and has never been authorized by petitioner (respondent) to negotiate with plaintiff to handle any sales, or to divide equally or otherwise with plaintiff-the net profits of any sales at all, and particularly the sale mentioned in this paragraph x x further .answer*, ing this paragraph respondent-denies that J.; ,H. Evans" - has ever had any authority from respondent to sign the letter mentioned in this paragraph (May 27th, 1915) or any other letter in behalf of respondent; responden! :ad* mits the contract agreed on in paragraph 7 of plaintiff's-petition (dated June 8th, 1915).- and is.willing to be bound by that contract, but denies specifically that J.E. Evans had any power or authority from respondent-to enter into any other contract; the power and authority of Brans to act for respondent being limited to obtaining the contract from the Lockport Realty Company".

There ms judgment for the plaintiff for the amount claimed ($249.17) and the defendants have appealed.

The plaintiff has not attempted to prove his case by any documentary evidence other than the two letters and the contract above referred to. As a general proposition, a corporation, such as the defendant can contract only through a resolution of the Board of Directors. In the asase of Bright vs Metairie Cemetery Association 33 A. 58, the Court said:

"A corporation which by its charter can -only act through its board of Directors, cannot be bound to contracts by its President, without the authorisation 'of the Board, unless it is in acts of simple administration which of necessity should be done without that authorization"'.
See also 148 La. 455.

Corporations have sometimes been held liable by contracts, not of mere administration, made by officers of the corporation or managers, in the course of their functions or by authority impliedly delegated to them. But Evans was not an officer nor a manager of the defendant corporation} he was not even an employee; he was enployed as agent, solely to secure sales for the defendants and for no other purpose. In the two letters addressed by Evans to the plaintiff, the letter-heads contained the list of all the officers, and the. name of Evans does not appear as one of them. The plaintiff in his testimony admits that he

"never had any conversation with Mr. Gerth or any-other officer of. the Company or its Board of Directors",

and that he

"never met Mr.- Gerth until the day of the sale"

and that there was nothing said about his commission on the day of the sale.

It was incumbent upon the plaintiff to show that Evans was an agent of thSdefendant corporation authorized to make a contract similar to the one sued on. 6 A. 524; 21 A. 592; 23 A. 274; ^ 34 ^ 9f=4 c^%nlv *s B ^

The’plaintiff does not claim, as we have saidyto have relied upon any action of the Board of Directors or of any officer of the corporatidft. Therefore his only hope is to show that the defendants held out -Evans as their agent, or that, hy virtue of his employment fte was impliedly clothed with authority to hind the corporation in such a contract. Plaintiff testifies that Evans held himself out as representing the defendants^If the plaintiff himself’'to he deceived hy what Evans said or did, he has himself to blame. He does not testify, nor prove^that defen|.dants ever held out Evans as representing them otherwise than as of business. It is out of defendants' words or actions that they can he affected. It is not shown that Evans had made a contract, of any kind for the corporation. By procur-this sale from the plaintiff and the Lockport Company, Evans secured for himself one-half of the coircnission the defendants to earn. But nothing shows that he had the authority to bar-away the other half of the commission belonging to the defendants, thus leaving them without any compensation whatever. Hr. the General Manager, and Hr. Montgomery, the President, of the defnndant corporation, both swear that he had no such authority - and it is easy to believe them.

Evans was never examined as a witness.

The argument that the contract of June 8th, 1915 made hy Evans cannot he divided, that it must he the whole or none, - is in the extreme. There is no attempt hy defendants to divide the contract,, to accept a oart, and to repudiate the other - the simple reason that the^ontract of June 8th makes no mention of any commission to be paid to the plaintiff. IS it had made such mention, the position assumed by the plaintiff might have had weight. Nor is there any evidence that the defendants had knowledge^of any one of the two letters of 'fay 20 end of !"ey 27 written by Evans, pretending to act for the defendant^, nor of their contents, nor of any other contract, verbal or üwrised, made by Evans with plaintiff, nor that Evans, acting for the cor.-par.y, had promised to plaintiff to divide with hin any part of the comdssion which the defendants were to earn.

We conclude with this axiom: that an agent employed on commission, by one in the real estate business, to solicit and procure for him sales of property, is not authorized thereby to bind his principal to pay another comrrission to s third person who may assist the agent in securing a sale.

It is therefore ordered that the judgment herein be reversed and annulled and that there now be judgment in favor of the defendants rejecting plaintiff's demand at his cost in both Courts.

Judgment reversed.

June 5th, 1922.


author: BY: WILLIAM A. BELL, ¿JUDGE:

text:
    INTERSTATE ELECTRIC COMPANY versus MAX GOLDBERG
    NO. 8284
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BEIL,JUDGE:
    June 5th, 1922.

   BY: WILLIAM A. BELL, ¿JUDGE:

Plaintiff herein seeks to enjoin defendant from removing certain buildings from property situated in the City of Hew Orleans, in Square 201, bounded by St. Charles Avenue, Prytania, ¿Felicity and polymnia Streets. This property, more particularly described in the petition for injunction, was sold by the defendant to plaintiff for cash, on February 26th, 1920, by act before Arthur A. Moreno, Hotary Public.

The deed of conveyance contained the usual contractual clauses for a cash transaction, or sale, in real estate, and then concluded with the stipulation, to which both the parties subscribed, and which readías follows:

"THE ¿PRESENT BUILDIHGS TO BELONG TO THE VENDOR AHD TO BE REMOVED BY HIM WHENEVER PURCHASER DECIDES TO CALL UPON SAID VENDOR TO DO SO."

This injunction suit was instituted upon the allegation in plaintiff's petition that, notwithstanding the stipulation above quoted, tfe»* Max Goldberg, defendant herein, had illegally and wrongfully notified the tenants living in the buildings situated on the land purchased by petitioner, to remove therefrom, and threatened to trespass on petitioner's land, or property, for the purpose of removing the buildings, and that he would so remove the buildings, without petitioner's consent, unless prevented from doing so by injunction.

It is further alleged that the trespass on petitioner's property, and removal of the buildings therefrom, would work irreparable injury, and the petitioner further desired the injunction to prevent the defendant from trespassing on its property, and from removing the buildings therafrojb until requested to do so by petitioner, and from interfering with petitioner in the collection of rents from the tenants occupying the said property of petitioner, and the buildings thereon.

Concluding with the declaration that the said illegal and wrongful acts of Max Goldberg, in notifying the tenants to vacate the property, and petitioner's rights therein, exceeded One Thousand Dollars ($1,000) and with reservation in the petition to claim damages, sustained by supplemental petition, the prayer was that the said Goldberg be restrained from trespassing on the property, or removing the buildings until requested by plaintiff to do so, and from interfering with the collection of rents from tenants occupying the buildings on said property. Bond being furnished by petitioner, the Court peremptorily Issued a restraining order, in compliance with the prayer of the petitioner.

Answering, defendant in injunction admitted that he had notified the tenants in the buildings located on petitioner's property to remove therefrom, and that he, defendant, intended also to remove the buildings, as he had a legal right to do, under the act of sale, a copy of which had been attached to plaintiff's petition, and further answering, he averred that the true, fair, and correct interpretation of the clause or stipulation referred to in plaintiff's petition, and which is quoted above, as the last clause, or stipulation, in the aforesaid act of sale, was that defendant owned said buildings, and that he had a legal right to remove said buildings at any time he desired, and that while said buildings remained on said land, defendant had a right to collect the revenues therefrom; sad further answering, defendant averred that plaintiff had no interest in the buildings, nor any legal right to collect the rents therefrom, and was therefore, not entitled to an injunction in the premises.

At the hearing of this cause in the trial court, there was no testimony taken exoept that of Max Goldberg, the defendant, who, in answer to questions, stated hi3 name, declared that he was the defendant in the suit, and then was further asked the following questions:

"Q. Are you the same Max Goldberg who sold to the Interstate Electric Company, on the 26th of February, 1920, a certain piece of property described in the petition?
A. Yes.
Q. In this act there was a provision, whioh I read to you. (Mr. Soharff reads the clause in the act) Will you explain that provision?
BY MR. IEMEE: Counsel for the plaintiff objects to any parole evidence to contradict, vary or alter the written terms of the act of sale. It is for the Court to draw its own conclusions from the language of the act.
SHE CODRf: (After argument by Counsel) fhe objection is sustained."

Ihere was judgment by the trial oourt dismissing plaintiff's suit at its cost, and dissolving the injunction, reserving to defendant the right to bring suit against plaintiff for whatever damages he may have sustained by the illegal issuance of the injunction. From this judgment plaintiff has appealed.

Because of the exclusion by objection, timely made, of all evidence attempted to be introduced by defendant in this case, there are no facts before us except as disclosed from the record through pleadings and documentary evidence.

Ihe sole question, therefore, for our decision, is, does the stipulation in the deed, as above quoted, give the vendor the right to remove the buildings whenever it pleases him to do so, or only when the purchaser decides to call upon said vendor to do so.

It is urged by the plaintiff that no other construction can be plaoed upon the stipulation under consideration, except that the buildings, though belonging to the vendor, and reserved as his property, could not be removed until the purchaser, or plaintiff herein, decided to call upon defendant to remove them. He prefaces his remarks in support of this argument by oalling the attention of this Court to Art. 2474, H.Q.O., as a ruis of oonstruotion which must be applied, to the aforesaid stipulation. This article reads as follows:

"She seller is bound to. explain himself olearly respecting the extent of his obligations, and any obsenre or ambiguous clause is oonstrued against him."

In support of counsel's contention, he oites with complete reliance therein, the ruling in Mower v. Richardson, 124 La. 130, in which the Court said:

"Indeed, if the case admitted of any doubt as to whether the land'was being sold with, or without its timber, the doubt would have to be resolved against plaintiff, (the seller) for 'The seller is bound to express himself olearly respecting the extent of his obligation, and any obscurity or ambiguous olause is oonstrued against him.'" R.O.C. 2474.

We see no application which can be made of the above oited oase to the faots in the oase before us, for in the oited case we find that the whole discussion was whether, in the conveyance of land/growing timber thereon, it was intended by the parties to the sale that both the land and the timber, rather than the land only, was to be conveyed. Ho such question arises in the oase before us, for it has been carefully stipulated in the act of sale that the land passed to the purchaser, and the buildings have been reserved to the vendor.

In argument and briefs, both counsel for these proceedings have discussed matters concerning rents, etc., in oonneotion with the contentions of these litigants, also the question of taxes and insurance, etc., as reasons whioh led up to, or introduced the interpolation of the clause now under disoussion. These arguments cannot be considered by the Court, for the reason that there is no evidence in the record which justifies their consideration. We can only determine the correctness , or not, of the ruling of the trial court, from the language of the stipulation itself.

Ia order to accept the View taken by the plaintiff as to the meaning of the stipulation, we would be impelled to the conclusion, unfavorable to petitioner, that the clause contains a potestative condition, upon which the law of this State, in matters of contractual obligations, looks with disfavor. Art. 8034, R.C.C. provides that "every obligation is null that has been contracted on a potestative condition on the part of him who binds himself."

It is contended by plaintiff that the only interpretation to be given the clause is that though the vendor owned the buildings, he could not, at any time, remove them from the land upon which they were located, until the purchaser, or plaintiff herein, should decide to call upon him to do so. Ihis construction would give to the plaintiff an undoubted power of indefinitely withholding from defendant the right to remove the buildings, unless, and until plaintiff decided they eould be removed. In our opinion, this would be null and void, because violative of all rights of the owner of the buildings, to exercise the priveleges of ownership, which were particularly reserved to him in the clause.

In the case of Consumers' Ice Company v. Trautman & Co., 45 Ann. 775, the plaintiff sued defendants for ice sold and delivered, and by reconVentional demand, defendant admitted the main indebtedness, but claimed that plaintiff was indebted to it for a larger sum, due under an alleged contract between the parties, by which plaintiff was to furnish ice to defendant at a stipulated price, until a pool was formed of all loe companies, in which defendant was to be included. It was contended by plaintiff, in answering the reoonventional demand, that the agreement for this reduced, or stipulated price, pending the formation of a pool, had long since terminated, in as much as the pool, as contemplated, had been formed, and that deliveries by it to the defendant thereafter, viere not subject to the agreement. It was contended, on the other hand, by the defendant, that they had not entered the pool, and that this fact prevented the termination of the first contract made with plaintiff, by which the latter was obligated to sell ice at the reduced rate. To this contention, the Supreme Court, in affirming the judgment appealed from, denying' the reconvontional demand, said:

"To say that the refusal of defendants to go into the pool continued the contract alleged to have been made with them by the plaintiff,. would be to make the condition potestative, and therefore null and void. Civil Code 2034."

iff the construction advanced by plaintiff in this case were adopted, the buildings might be kept on the land forever, beyond the wishes of the vendor, and in compliance with the arbitrary wishes of the vendee. In other words, the vendor could be compelled to leave the buildings permanently on the land.

In the case of Texas & pacific Railroad Company v. City of Marshall, 136 D.S., 393, there was a contract made between the City of Marshall, Texas, and the Railroad Company, by which it was agreed tnat in consideration of the donation of certain sums of money and certain land by the City of Marshall, that the Texas and pacific Railroad Company would permanently establish its eastern terminus and Texas office at the City of Marshall, and would also there construct certain machine shops and oar works. After eight years' interval, and after the contract had been fully carried out by both parties, the Railroad Company attempted to remove various parts of its shops and its Texas office to other citie3, and to cease to make the City of Marshall the terminus as agreed upon. The Supreme Court ruled that it could not be supposed that the parties intended a covenant to build and re-build, and a covenant never to change any of its offices or the place of manufacturing oars, or otuer machinery necessary for the use of its Company, nor that it would forever keep up, for the benefit of the Town of MurSi.aH, ti.ese establishments, when once organized. See also 74 U.3. 290, Mead v. Ballard.

Art. R.C.C. 3556, Bar. 20, defines the word obligee, or creditor, a3 "a person in favor of whom some obligation is contracted, whether such obligation be to pay a 3um of money, or to do, or not to do, something." Surely, the obligee in the clause under discussion was the plaintiff, in whose favor defendant.Goldberg, agreed to do something, that is, to remove the buildings whenever plaintiff should decide to call upon him to do so. It oould not be denied, on the other hand, that the defendant was the obligor, who, as the Civil Code says, (Art. 3566, Bar. 21), is"the person who has engaged to perform some obligation."

Now the Civil Code also provides (Art. 8048) that the "term" of an obligation, is the time given, or the limit for the performance of an obligation. Art. 2053 also says that "The term is always presumed to be stipulated in favor of the debtor, unless it results from the stipulation, or from circumstances, that it was also agreed upon in favor of the creditor."

In the contract before us, it may rightly be said that the term, or time given for the performance of the obligation to remove the buildings, is in favor of the obligor, in that he is not required, or obligated to remove them immediately, but only whenever the purchaser decides to call upon him to do so. By no possible construction of either Art-. 2053 R.C.C., or of the stipulation in the contract itself, oould it be said that the "term" of the contract, that is, its time of performance, must here 'be also construed in favor of the obligee.

Even without the assistance given us by-applying these codal rules of interpretation to the stipulation relied upon, we are of the opinion that all of the rules of common sense impel the construction that the defendant, while obligated to remove the buildings whenever requested to do so, was certainly at liberty to remove them though not requested, whenever he desired to take unto himself, and to appropriate to his own use and benefit, that which was declared in the stipulation to be exclusively his own.

JUDGHEHT AFFIRMED

AI RDAIMIIFF'S POSE I*T BOTH 0ORRIS

June 5th, 1922.


author: Dinkelspiel; J,

text:
    NO. 8285
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES F. PETERSON versus FRANK P. BARRY

   Dinkelspiel; J,

Plaintiff institutes this suit claiming the sum of Hundred and Twenty Four and 44/100 Dollars, for this vrits

That on September 18th, 1918, plaintiff entered into a written oontraot with defendant for oertain renovations and oonstruotion work on the premises Ho. 3036 St. Charles Avenue; a oopy of said oontraot is annexed to the petition, marked Exhibit "A".

That under said oontraot plaintiff was to receive for said work, the sum of Twenty Two Hundred and Fifty Dollars, payable as therein set forth. Avers further that on October 16th, 1918, he entered into a supplemental oontraot for additional work on the same premises and was to be paid the sum of One Hundred and Forty Seven Dollars under that oontraot. And further alleged that on Hovember 39th of the same year, he entered into a seoond supplemental oon-traot for additional work to be done on the same premises for whioh he was to receive the sum of Forty Eight Dollars. All the foregoing oontraots were in writing and also made part of the plaintiff's petition.

Alleged further thot under instructions of the defendant, other extra work was to have been furnished and he annexes a detailed statement, claiming the sum of Two Hundred and Seventy Six and 30/100 Dollars,

Finally plaintiff alleges that he has performed all the work required of him under the said oontraots, in aoooraanoe with the terms of same, but defendant has failed and refused to pay him the amount due; has refused to accept the work, although completed under his oontraot. Avers amicable demand and prays for judgment.

Defendant admits the various oontraots sued upon, but denies that said oontraots were carried out in aooordanoe with speoific&tions, and therefore, refused to pay the full amount due defendant, denying that he owes anything, and rejtying on the olause;

"Should the contractor for any reason fail or negleot to perform the work contemplated in this agreement, the owner shall he at liberty to he,ve the work completed at the oost and expense of said contractor."

He further avers that the oontraot-. provided same that plaintiff should have oompleted. /fckaxraxi within fifty days from its date, olaiming that not having' done so, he was entitled to get modifications of the agreement and damages for demurrage» Alleges further that plaintiff having failed to prosecute the work as agreed upon, he notified him'' in writing on the 17th of Deoember,- 1918, that the oontraot had been, withdrawn and that he, plaintiff, was in default,, and therefore gave notioe in aocordanoe with his oontraot. That de-bids fendant was compelled to solioit «¡¿oteieeac to oomplete said work, whioh he did, itemizing the sums expended in statement annexed to his answer', and finally prays plaintiff s that/derftatacfcJcx olalm bnxx be rejected and that- in re-, convention, defendant recover, of plaintiff, the sum of Six Hundred Seventy Seven and Seventy Five One Hundredths Dollars, rejecting plaintiff's demand at his oost.

Specifications and plans are annexed to the contracts end are me-de part of this reoord, together with .correspondence between plaintiff and defendant.

Plaintiff,-• as a witness in his own benalf testifies substantially to performance of his contracts with defendant in so far as it was possible for him to do so, certain exceptions vo the entire completion of the oontraots in question were aaJcfctsd admitted, but ola-lmed to be caused by the acts of the defendant, in constantly interfering with the workmen sent to his residence in order to oarry out the contracts in question.. This faot was proven, by many of the worksn, most of them swearing that defendant'constantly oureed and abused them, going so far as threatening to kill one or more of them, . I.t has been also established by the testimony of Jones, Martinez, Coheii and Millón, all of them either supplying materials to plaintiff as oontraotor on these premises, or workmen, that, the work was substantially completed with the exceptions heretofore detailed and all of them in their- respective lines of business, who had supplied-lumber, paints-and other artioles, testified to the .faot that in so far as it was possible; they had done the’work entirely up tp and aooording to the oontraot.

The defendant in his own behalf, in lengthy general statements, denied emphatically that he ever interfered with any of the workmen or with the plaintiff 'himself, and .further testified-that the work, save and except pertain parts of it, had been executed in accordance with the oontraots; that the v/orkmen were not annoyed but that he never interfered With them and did everything he could- to aid and ’assist plaintiff in executing his oontraot, and when plaintiff failed in doing this he was compelled to take and employ other people and furnish other materials in order to finish the building in question,- and do work that should have been done by plaintiff which was not done by him, and he was put to great inoonvenienoes, loss of time and compelled to pay the- large amounts of money, for whioh he claimed .in reconvention, judgment against plaintiff.

But on the trial of this oase, before this Court, the-reoonventional demand was abandoned in open Court by counsel and simply prayed that under a judgment, plaintiff's suit be dismissed at his oost.

He has endeavored by the -evidenoe of L’ockhart, Larsen, Bab3t and his own evidenoe -together with his wife-'s, to establish these facts.

A oareful Investigation of this record satisfies us that defendant has failed to establish, to our satis-■faotlon, his claims for improper work done under the various contracts, but on the contrary, we ere ooiivinoed that plaintiff has substantially carried out his contract' as'far as it lie in his power, and was stopped by the defendant in the execration of his work, until finally after almost completing the entire job, and delivery of oertain wall paper and other materials whioh the testimony disoloses he oould not fulfill through the aots of the defendant.

To go through and itemize the defendant's statements, and all the testimony of the many witnesses contradiotory, would accomplish no useful purpose, and would not serve the interest of justice. We take the reoord as we find it, and from its examination we are oonvinoed thst the Judge of the Court aquo who heard all the testimony in this case, and having tascrixail seen the witnesses and noted the manner in whioh they testified, was in a better position to judge than we'are, and he oame to the conclusion that plaintiff was entitled to a judgment Tot the sum of Six Hundred and Eleven and Forty Four One Hundredths Dollars, with legal interest from judicial demand until paid, and all oosts -of this suit.

We find in the oase ofDugue,vs. Levy, 114 La. at p. S3, the following exoerpt, whioh we quote:

"A substantial performance of the oontraot is all that the law requires, end the employer will not be permitted to avoid payment beoause the strtot letter of the agreement had not been oarried out. Slight deviations, therefore, or technical, unimportant, or inadvertent omissions or defects will not bar- recovery.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Oourt aquo he and the same is hereby affirmed, with costs of both Courts to be paid by the defendant.

-Judgment affirmed».