text:
    DR. A. B. COUCH, VS COUCH RICE HULLER CO.
    NO. 7234
    CHARLES F. CLAIBORNE, JUDGE.
    February 11th. 1918.

      CHARLES P. CLAIBORNE, JUDGE.
   This is a suit to recover the amount of a promissory-note. The defense is the prescription of five years.

The note reads as follows:

$989.63 Houston, Texas, 6-14-10.

Six months after date we promise to pay to the order of the Union Iron Works, Nine Hundred eighty-nine and 63/100 Dollars at Houston, Texas, value received.

"Signed" Couch Rice Milling & Manufacturing Co.

A. B. Couch, President Stamped across the face:

Paid — Union National Bank. Houston, Texas. Note Teller-Dec. 17 1910.

Endorsed: A. B. Couch

Wm. A. Cathey

H. Prince

Union Iron Works

per B. J. Harper, Pres.

It is essential to notice that while the above note ./ is signed by the "Couch Rice Milling & Manufacturing Co., "^as makes the present suit is brought against the "Coftch Rice Huller Co."

The citation was served on the defendant on November 3rd. 1916, five years, ten months and nineteen days after the maturity of the note.

The petition alleges that the "Couch Rice Milling and Manufacturing Company, the maker of the above note, was dissolved in the year 1910; that the "Couch Rice Huller Company," the defendant herein, succeeded to the said "Couch Rice Milling and Manufacturing Company", that it took over all of the assets of the Coffeh Rice Milling & Manufacturing Co., and, as part consideration of the talcing over of these assets, assumed the liabilities of the latter company by virtue of the re-organization of the latter company into the "Couch Rice Huller Company" and by virtue of the contract of' the stockholders of "Conch Rice Milling & Manufacturing Company" with the proposed stockholders of the "Couch Rice Huller Company"; that among said liabilities was the note above mentioned; that notwithstanding the assumption of said note by the Couch Rice Huller Company, it refused to pay the same at maturity, and the plaintiff, as endorser was compelled to pay it; and the said company refuses to reimburse him the, amppnt paid by him; and he prays for Judgment against said^company for said $989.63.

The defendant filed exceptions which were overruled, and then an answer embodying practically a general denial.

The case was placed upon the "Summary" docket, where promissory note cases are placed, to be called and fixed as a preference case. It does not appear upon whose direction. Thereupon the defendant, alleging that he was "entitled to know whether said suit is, or is not, a suit on a promissory note, entitled to preference; moved that it be stricken from the summary docket" as not being a suit on a promissory note." Counsel differ as to the position assumed by plaintiff's counsel on the trial of the rule.

The following order, however, was entered:

"The court being of the opinion that this is a suit on a promissory note and entitled to be on the summary docket, the motion to remove said suit from the summary docket is dismiss- , ^ ed at mover's cost.
Before the trial of the case upon the merits, the defendant then filed the following exceptions: "How into court, through undersigned counsel^comes defendant "Coofch Rice Huller Company", defendant in the above numbered and entitled action, and specially enters exception and plea of prescription of five years to the suit herein on the note alleged to have been held by plaintiff herein, ifherefore your exceptor prays that this exception and plea of prescription be maintained and plaintiff's suit dismissed".

Whereupon the following judgment was rendered: "The exception and plea of prescription of five years, herein filed having been heard and submitted to the court, and the court being of the opinion that said exception and plea of prescription by the court, that said exception and plea of prescription be and they are hereby maintained, and accordingly, that plaintiff's suit be dismissed at his cost."

From this judgment plaintiff has appealed.

based upon the theory that this suit is upon the note. We cannot understand his position inasmuch as the defendants^ name is not upon the note either as maker or indorser or in any other <«r’ capacity. The defendant's whole exception and argument are

would have been dismissed upon an exception of no cause of action, as there was nothing upon the note to connect the defendant with it. In order to fix upon the defendant a liability for e, some allegation, foreign to the note, hecame necessary. Hence was that plaintiff necessarily alleged that the defendant had assumed to pay the note; and unless he makes that proof he must fail. That allegation disclosed the real cause of action. The assumption of the note by defendant did not make it a party and was for the amount of the note, but it was not upon the bare note itself; it was upon the assumption of the note charged against the defendant. Unless plaintiff had allegc-A that the defendant had assumed the payment of the not», he would have been without a case against it. Defendant's exception of the prescription of five years applicable to notes cannot be sustained unless the assumption of payment of a note is prescribed by the same period by which a note itself is prescribed. But such is not the Jurisprudence. The assumption of a debt is prescribed by only ten years, whatever may be the character or period of A suit against the defendant upon the note alone prescription of the debt assumed.

The case of Ludeling vs Felton 29A 719 (722) was an action against a surviving widow to make her liable for community debts.

The court said: "The plea of prescription of one, three, and five years, interposed by the defendant cannot be sustained. She accepted the community in 1871 and this suit was brought in 1874. Her obligation to pay half of the debts of the community flows from a quasi-eontraot, from an assumpsit implied by law from her act of acceptance. The prescription applicable to such an action is that of ten years. C. C. 3544."

In the case of Scionnaaux vs Wague3pack 32A 283 (288) the Supreme Court said: "The plea of prescription (of five years) set up by Gay is no bar to this action. The assumption by Ferry did not make him a party to the notes^-^

Táí. His assumption was §r personal obligation subject, * only to the prescription of ten years.

When a surety pays a note, his action for reimburse ment against the principal arises from his payment of the note; but the obligation of the principal springs from the note; yet ^ the action against him is prescribed by only ten years. 14A 663^2 12A 878- 2A 779-636.22/ 3 ¿S/píL fe ^ V (fcvfa* † - a./ /i.^30.^3/- 3 Z

/ So 'the of an agent against his principal for items paid by the former for account of the latter, is not based upon the items paid nor barred by the prescription applicable to them, but upon the obligation to reimburse and is prescribed only by ten years. 46A 1199 (1208) 40A 766-28A 181-24A 200 (203) 19A 491-10A 395-2A 779-636 12R 148. /<6~2L /// 3 -

Statutes of prescription cannot be extended from one action to another nor to analogous cases beyond the strict letter of the law. 15A 143-12A 886-12R 150-141. ¿27/ &./>/z/&

But defendant arguefe tb plfantlff has admitted that his suit was upon a promissory note, by permitting it to remain upon the summary docket, and that he is thereby x estopped from denying it. There is no proof before us that plaintiff made that admission. The note itself and the allegations of the petition contradict such a construction of plaintiff's position. He might well have argued, and the court below might well have thought, that inasmuch as the suit arose from the assumption of a note that it was entitled to a place upon the summary docket though strictly not a suit upon the note itself.

Estoppels are not favored and will not be applied unless clearly established. Erroneous alligations of law do not constitute b estoppels. 47A 851 // *1 o&Z- 3 —•

/It is therefore ordered that the Judgment of the Judgment District Court be avoided and reversed and that the exception and plea of prescription be dismissed, and the case remanded to be tried upon the merits; it is further ordered that the costs of this appeal be paid by the defendant and the costs of the District Court to k await the final determination of the case.

February 11th. 1918.


source: Caselaw Access Project

license: Public Domain

text:
    By Judge Goddohaux.
    N. S. Haik vs. T. Soniat Dufossat.
    No. 7244.
    Court of Appeal, Parish of Orleans.
    Claiborne, J., recused.
   ■ O g IS 1 Off,

~^rB¿e^teu^e^SaXa Is a- suit by a te'nant-.agajnst ¡bis landlord' for allegad damage to his household effects and. stock of merchandise, as well.-as for...the cost of temporary rapairs xo. xhe roof of the leased premises, all,resulting from the-tropical storm of September 29, 191S, There was'¿judgment dismissing plaintiff's suit, and tha latter appeals.

Under any circumstances, the proof of plaintiff's alleged'damage is too vagus and unsatisfactory to warrant a finding’in his favor. Defendant was not permitted a-view of the furniture and merchandise after .tire-damage ooourred, and though it was manifest that the damage' to these-articles, oonsis ting of beds and other household effects and'partly of canned goods of a grocery stock,' could not be total,- nevertheless, aooording'to plaintiff's evl* .encausóme of these articles ware givsn away and the-remainder oast by hita- in tbe garbage heap, He further testified-that; pending these- proceedings^ loot, mislaid or dastroyad nearly-every vouohar that would sustain'his proof of loses and as to those books, reoeipts or other vouohera which, at ill- remained ‘confessedly in his possession, he failed to produce them when Ordered so to 4° by-. .the -Court*

.And even upon ths score: of’ tha 'temporary- repair».'to -the -roof; * *a'.expenditure made by plaintiff-but a few days, Dsfora filing suit - 'there is a total absence of vouchers' or receipts, wmle the testimony of the three witnesses called to fix ths amount of this disbursement, .impresses -us -no more' favorably-than it-apparently .did the trial judge who'heard-them-.-

furthermore the demand'for'labor and material wae ao general-and the consequent scarcity thereof was ■ so-aoute^'foilowing the ctorm whioh left hardly a roof in the Oity uninjured, that it is not surprising that defendant, though'he promptly applied to numerous roofers, was unabls to have the. roof .repaired before the severe rains of Ootobsr 12th and 13th ooourred. .He wae guilty" of no lachas, in declining to employ for the hazardous and specialized, work of repairing an. unusually steep roof, -the inexperienced stranger .sent -to .him by plaintiff and of whose business, skill or oapaclty he knew and could ascertain nothing. lioreover-after the defendant had announced that he could not secure labor and would not employ this stranger, plaintiff's remedy was to havé tha ret pairs mads himBelf, for ha then had in his hands arreagss :of rent for three months, an amount more than sufficient to cover this expenditure.

7e find no error, and the judgment is accordingly ‘affirmed.

Claiborne, J., recused.

Affirmed.


text:
    JNO. P. SULLIVAN VS GEO. W. SPRINGER
    NO. 7245.
    CHARLES F. CLAIBORNE, JUDGE
    February 25 1918.

      CHARLES F. CLAIBORNE, JUDGE.
   This is a contest over the proceeds of a Sheriff's Sale between twoAlessprs, one claiming priority by virtue of the law and the other by virtue of an agreement. The case turns upon the interpretation of the agreement.

The facts are -as follows:

In August 1914 the Gauche Realty Co., as owner, leased to the plaintiff herein^John P. Sullivan^the ground floor of the property No. 130 Royal Street for a term of 24 months expiring September 30th. 1916 for the price of $250.00 a month.

On the same day, Sullivan subleased the same property to the defendant herein Geo. W. Springer, for the same term and for the same price.

Springer defaulted in the payment of his rent for the months of June, July and August 1916 and under the terms of "the lease the rent for the month of September became exigible.

In the first days of September^Sullivan notified the Gauche Co., that he would not renew the lease and that he Intended to sue Springer for the rent he owed him and seize the contents of the premises. But Springer desired to continue as lessee of said premises.

The Gauche Company; however, was unwilling to lease to him as long as he had not paid his rent and as long as it was in .the power of Sullivan to seize him. Thereupon the following agreements were made?

Sullivan drew up a petition in which he alleged the lndebtness of Springer to him and prayed for Judgment against him for $1000.00. On September ¿2nd. 1916 Springer confessed .Judgment as prayed for; but neither the petition nor the confMalón of Judgment wars filed in Court at that time.

Upon the same day Sullivan addressed the following letter to. Springer:

ÍNéw Orleans, September 22nd. 1916.
George W. Springer, Esq., City.
Dear Sir:-
In consideration of your granting the confession of judgment hereto attached for #1000.00 balance due on rent of premises Ho. 130 Royal Street, I hereby agree not to file aald suit' or execute said Judgment for one year from date, provided you will pay #90.90 on the first of.each month for eleven months aald payments to begin on November 1st. 1916.
"It Is understood that If you fail to make payment on the first of any month, I will at once file the suit and execute the Judgment for any balance that may be due on this rant claim.
fours truly,
John P. Sullivan."

On the Same day the Gauche Co., wrote the following letter to Sullivan:

'Hew Orleans, September 22nd. 1916.
John P. Sullivan, Esq,, City,
Dear Sir:-
“In consideration of the fact that you have granted an extension to our prospective lessee of the premises Ho. 130 Royal Street, and have not exercised your right as lessor to provisionally seise the contents of said premises for the balance of rent due you by lessee, Springer, namely: #1000.00 we do hereby waive our lessor's lien and privilege on the contents of said premises In your favor up to the amount due you on above rent claim, should It become necessary for you to seize the premises at Ho. 130 Royal Street and Ho. 131 Exchange Alley, at any time between October 1st. 1916 and October 1st. 1917.
Yours truly,
Gauche Realty Co,"

On April 25th. 1917 the American Brewing Co., filed a suit against Springer and sequestered his City and State licenses for the year 1917.

At that time Springer had paid Sullivan only three months at #90.90, making #272.70, leaving a balance due of #727.30. He was therefore three months In arrears for the payments due on February, Kerch and April 1st. 1917.

Thereupon Sullivan, on Kay 2nd. 1917, filed his pe%l%Mn and confession Of Judgment in the Civil District court, obtained Judgment against Springer for #727.30 Issued a fieri facias, and seized the contents of the leased premises 130 Royal Street^as well ae Springer's City and State licenses for 1917 already sequestered by the' Sheriff at the suit of the American Brewing Company, and advertised the whole for sale.

She Gauche Company intervened to claim a preference over Sullivan On the proceeds of sale and alleged that it was the owner of the premises 130 Royal Street; that it had leased said premises to Springer from October 1st. 1916 to September SOth. 1917, at a rental of $175.00 a month and that it .had a lessor's privilege on all the contents of the leased premises for the payment of the rent due; that Springer wa3 Indebted to It in' the sum of $75.00 balance due for the month of December 1916 and for the whole of the months Of January, February, March and April 1917 making a total of $775.00; that during the month of September 1916 it had agreed with the said John P. Sullivan that, should it become necessary for him to seise the premises 130 Royal Street and 131 Exchange Alley to pay an amount of $1000.00 which was then due the said John P. Sullivan, it would waive its lessor's lien and privilege on the property then contained in the aáid premises which might still be contained therein at the time the said Sullivan should issue any seizure herein, up to the extent of the amount that would be due the slad Sullivan at the time OwRlivan at-the th— of said seizure; that the amount due Sullivan Was only $727.00, and that bis privilege in sofar as it was superior to the privilege of the Gauche Company rested "only upon such of the property now seized as was ■ in the premises on September 22nd. 1916, and that upon all property contained in the sAid premises your petitioner, (the Gauche Company) has a lessor's lien and privilege superior to any claim by the said Sullivan under his confession of judgment herein*; *that among the property seized by the said Sullivan are two State and City licenses for the year 1917 amounting to $705.00; that upon the said two State and City licenses the said Sullivan has no lien and privilege thereon, or upon the proceeds thereof, for his rent as aforesaid and it claims the same*; "that upon all of said property that has been placed there since Séptenber 22nd. 1916 your petitioner has a superior lien and privilege, as lessor, ranking that of the said John P. Sullivan plaintiff herein, and It desires to assert t>S same;" It prayed for a separate appraisement of the property as follows) Asv. All the property that was in the premises on Septerrher 22nd. 1916^ 2nd. All the property which was placed in Said premises ainch September 22nd. 1916 including the two State and City lleenses; and it prayed that its privilege be recognized as superior to that of Sullivan upon the proceeds of sals of the two lleenses and of the contents of the premises that were placed therein after September 22nd. 1916.

An order of court was rendered accordingly, but It does not aPPZ by the record that the property seised was appraised ln^two classes created by the petition and prayer of the Qauche Company. All that the Sheriff's return indicates is that the contents of the premises were sold for $ 418.45 and the two licenses for $ 285.00 Making a total of - $ 703.45

There was Judgment ordering the Sheriff to pay to the Qauche Company the proceeds of Sale of the two State and City licenses amounting to $285.00, and to J^pt P. Sullivan all the other proceeds of Sale.

The proceeds of sale of the*contents of the premises were not given to the Gauche Company by that Judgment probably because it did not prove that they had been put upon the premises after September 22nd. 1916, and that the presumption was that they were there prior to that date.

Prom this Judgment plaintiff, John P. Sullivan, has appealed.

It is suggested in plaintiff's brief that independently of the letter of the Gauche Co., of September 22nd. containing a waiver of their privilege in favor of Sullivan, the latter would have been preferred to the former upon the theory that where there are two consecutive lessors the first lessor enjoys a priority of privilege over the second. We do not find it necessary to pass upon this point.

It Is true that all contents of the leased premises up to September 30th. 1916 were impressed with Sullivan's privilege, as lessor. Admitting that they continued thus impressed with a privilege superior to Gauche it cannot avail Sullivan in so far as Sni the licenses, are concerned. These were not on the premises during Sullivan's lease which expired on September 30th.1916. They were placed therein only after January 1st.1917, during Gauche's lease. Therefore Sullivan's lease never affected them. But this question of law may assist in interpreting Gauche's letter of September 22nd, by virtue of which Sullivan claims a preference.

By that letter did the Company waive its rightsonly upon the contents of the premises contained therein on September 22nd.,or upon all such contents as might be therein at the time it would become necessary for Sullivan to seize?

The allegations of the petition of intervention of the Gauche Company contain^ rather an interpretation of that it . letter as they would have^read jlfi, rether than the language itself. We shall adhere to the letter.

Article C.C.1951 (1946) provides: "When a clause is susceptible of two Interpretations,it must be understood.in that In which it may have some effect rather than in a sense which would render it nugatory." C.N.1157.

This is a textual translation of Rule Second of pothier on Obligations Part 1 Ch. 1 Article VII 92. Pothier gives as an example: "For Instance, if it is said In an act of partition,' "It has been agreed between Peter and Paul that Paul bbbbíSx could pass over his property"; although these terms "hia property" , in a grammatical sense,may mean the property of Paul as well-aa that of Potar, nevertheless It la not doubtful that they must be understood to mean the property of Peter; otherwise the clausa would be without effect, inasmuch as Paul had no muwz need to stipulate that he could pass over his own property."

"Is it not reasonable Indeed to presume that parties have not Intended to insert in their agreement a useless clause." 25 Pemolombe p.11 $12 .See 10 M.575; 3A.364.

If we accept the interpretation of the Gauche Company that they waived their privilege only as to the contents In the premises on September 22nd. we must assume that they Inserted "a useless.clause", and that they renounced to nothing, because they had no privilege to renounce, Inasmuch as the privilege of Sullivan alone affected those contents on thst date. If on the contrary we adopt the interpretation of Sul]Ivan that the renunciation of superiority made by Guachiapplied to such contents as might be in the premises at the time It became necessary for him to issue his seizure, then we give substance and effect to the waiver by making It apply to an. existing right of superior ..privilege which' the Gauche Company really had over Sullivan on the two licenses at the time he seized them.

We believe that such was the Intention of both the Gauche Company and of Sullivan at the time the letters were exchanged on September; in other words, that the Gauche Company was abandoning some right it had, and that Sullivan was. acquiring soms he did not have. We cannot believe that Sullivan consented to restrict his privilege only upon the contents ofi the premises on September 22nd. which were being sold and disposed of daily.

We believe that the sum and substance of the agreement made between Sullivan and the Gauche Company was as followss

That Sullivan was willing to grant Springer an extension of time for thé payment of the f1000.00 he owed him, but he was fearful that, in the meantime, the Gauche Company would acquire rights superior to his; In order to obtain his consent to the extension, the Gauche Company agreed not to claim rights superior to his upon the contents of the premises -**>£**-ii existing at such timers» should M become necessary for him to seize the premises at any time between October 1st. 1916 and ■October 1st. 1917." According to Gauche's interpretation they would have waived nothing and Sullivan would have acquired nothingb^But this agreement of waiver was the promise of the Gauche Realty Company. Articles 1957 (1952) and 1958 (1953) of the Civil Code provide: "In a doubtful case the agreement is interpreted against him who has contracted the obligation. But If the doubt or obscurity arise for the want of necessary explanation which one■of.the parties ought to have given, or from any other negligence or fault of his, the construction mast favorable to the other party shall be adopted, whether he be obligor or obligee."

It was incumbent upon the Gauche Co., to have explained and make clear what It meant by the words "on the contents of said premises", wnether present or future contents, and not having done so the law presumes that the explanation would have been to It3 disadvantage. 6A204.

C, C. 1901 (1895) "Agreements legally entered into, have the effect of lawe on those who have, formed them. They must be performed with good faith."

C. C. 1903 (1897) "The obligation of contracts extends- not only to what is expressly stipulated but also to everything that bylaw, equity, or custom, is considered as in- ■ eldental to the particular contract, or necessary to carry into effect," '

But the Gauche Co., contends that Sullivan bound n * himself to file suit against Springer at once if he failed to make the payments on the first of any «hath in accordance with ths last paragraph of his latter to Sponger which petóse as follows:

February 27th. 1918.

"It is understood that If you fall to make payments on- the first of. any month, I will at once file the suit and•reoute the Judgment for any balance that may be due on this rent claim."

Vs do not Interpret that stipulation to have been in-tiro* of the Gauche Co., or to have imposed upon.Sullivan the obligation or duty to file suit against Springer Immediately after Ms default.

The stipulation was for the benefit of Sullivan only and conferred upon him a right, and he might well have Indulged- Springer, without Incurring any liability to the Gauche Co.

The Gauche Co., was not a surety for Springer. Hel-theh ha« the Gauche Co., proved that It suffered any damage by the indulgence.

It 1b therefore ordered, adjudged, and decreed that the JUdjjaaht of the-District Court In so far as It Is In favor of the Gauche Realty Co., be avoided and reversed; and It Is -now ordered that there be Judgment In favor of John P. Sullivan and agalnSt the Gauche Realty Company rejecting and dismissing its petition of Intervention at its cost and ordering the Sheriff to pay the.net proceeds of the Sale herein to the plaintiff herein, John P. Sullivan.


author: By hi» Honor, John St. Paul.

text:
    NO. 7246
    W. E. PATTERSON VS ELMER CANDY CO, Incorporated
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIKIOfT,

By hi» Honor, John St. Paul.

^ This is a suit for eleven months salary said to h# duo undsr an allegad coatraot of employment and a discharge without causo.

Plaintiff alleged that on December 16, 1916 he offered to enter defendant's employ for the year 1917 at $100 per month and expenses. That sn February 12, 1917 his prepssitien was accepted by defendant. That after such acceptance defendant attempted tp change ths nature ef the employment to a commission basis; and en Kerch 20th discharged pltd ntiff without causo.

To this petition defendant filed an exception of no oauee ef action, at the trial ef which it was agreed that all the eerroapon danos botwoon the partios should bs filed and "considered as part of the. petition. ■

The trial judge maintained the exception and pld. ntiff appeals;

It le clear from the above that the question presented by the exeeptien ef no cause ef action is net whether the br e reoitala of the petition shew a right te recover, but whether the corresponden* now part ef the petition, show such right. And ws agree with the District judge thdt it dees net.

On Februur y 13th, the very d.% on which a telegram from plaintiff offered t* dose the agreement, defendant wrete that it expected to pay a commission and expense* hut no salary. And sn February 20th, plaintiff wrote " x x I stated I would take your line undsr the impression my proposition of December 16 (salaried) was accepted by' you x I have as objection to working en a commission basis because I know I can earn the salary asked for. If you will giro me a contract for 1917, agreeing to fuwnish expenses, I will start out At one» x x".

Thereafter, from February 23 to March 9th the correspondence was entirely with plaintiff* brother (acting for plAintiff) the substrae* of which shows that plaintiff was away from his horns, and Was undecided whether te accept defondtnt's proposition. And asking an save nee of two weeks expense# money in caoo ho accepted, to be returned if ho did not.

On March 10th plaintiff himself wrote "In th* absonc* of anything definite from you.regarding my representing yon at the fir& of pretest year, I teek a line (from another manufacturer). It was only a temporary arrangement pending something definite from you. I have a few points to mdee ana will then return. Will take up ywur proposition on Commission basis, you advancing my actual travailing expenses and charging same against my commissions. There will be no big business until time to .take orders fsr ’¡’all and holiday seasons x x. Havihg received my brother’s services on more than one occasion te travel for m« x x would suggest, if you prefer to go out at once with you* linn, I can wire him to take line making Rastírn R. C. by which time I can join him and take line in balance of 39. C. x x If tills. ma-tts your approval, wire m» x x x. Tills suggestion will enable you to have your line out at_ race."

Meanwhile this letter from plaintiff himself creased a letter of VTsreh 9th, from defendant refusing the advance asked by plaintiff's brother and stating that if the orepositier "irii to plaintiff did not me*t hie approval he should return th* samples.

This letter was snswered by on* from plaintiffs brother, th* dated March 14th in which hi refers to that part of correspondence set up in the petition, declares that the full cerrtapondenc- ha. been submitted to plaintiff latjer "who inf« ms me that Mr, Vats-arson ran helo you to tn« contract made on a salary basis", and that plaintiff is on his way $*## horns, and is r.ad/ »nd waiting to start out "under th* above contract as soon as expense# money is received.

Upon receipt of this letter defendant broke- of. the correspondiko- and this suit followed.

New Orleans, La, February 1918.

As w* apjuMtcijkt*. fcjAfc cataeraapandanoa , whatever may hay* hasa plaintiff» right» at first, a*a* th* lass ha was aat diapased ta iaaiat upaa th**, H* was evidently unable *r unwilling ta start aut far plaintiff at aaea, but waa qruita willing t* taka up tha «aplayas n't later *ni «a a camaiaalaa batia, and if dafandant waatad asms *** at gads ha auggastad that hia brathar might taka hia placa.

It ahawa vary clearly that plá. atiff himaalf navar ti any tima canaidarad himaalf la th* amplay af dafandant, baund t* giva them hi* tja* ia return far a aalary which they «wad him, but am th* oamtrary fait himaalf fra* ta cantimu* hia athar amplaymant and diapaaa afhia awa tin* as his awa Interest* auggastad.

la sur «pialan th* caatract rallad up** navar waat iata affect.

Judgment Affirmed.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    CHARLES FERRO, Appelle VS SYLVAIN H. BOUCHE, Appellant
    NO. 7253
    CHARLES F. CLAIBORNE, JUDGE.
    December 24th. 1917.
   CHARLES F. CLAIBORNE, JUDGE.

This is an ejectment suit under the provisions of Act 313 of 1908 p.479.

On November 19th. 1917 plaintiff filed petition In which he alleged that by act dated October 18th.l917 he purchased the property No.5317-23 South Franklin Street from lira. John Vlllemeur; that at -the time of his purchase the property was occupied by defendant under a written lease from the vendor,Mrs*Véllemeur, beginlng October 1 — 1916 and ending September SOth.1917 at the yearly rental of $432 duly registered in the Conveyance Office;that notwithstanding the expiration of said lease by limitation the said defendant still occupied said property and refused to vacate it; the plaintiff further averred that he was anxious to obtain the possession of said property, and he prayed that the defendant be cited summarily by rule, to show cause why Judgment should not be rendered condemning him to vacate said premises, and for a writ of possession against him!

The rule was made returnable on November 23rd.l917.

Defendant filed several exceptions^only two of which have been insisted upon in this Court. They are that the District Court was without Jurisdiction of this proceeding ratione materlae, and that plaintiff's petition disclosed no legal right of action in that, as purchaser^ he was not entitled to the summary proceedings by rule provided by Act 313 of 1908.

He also answered that at the time plaintiff purchased the property the lease had expired; but that prior to Its expiration on September 30th. 1917 he had renewed said lease with Mrs. Villemeur, who was then the owner of the property, for the term of one year begining October 1st. 1917 and ending September 30th»1918; he denied that there existed any contractual relations between him and plaintiff as landlord and tenant; or that there was any tacit reconduction of the original lease; and averred that plaintiffls only right was a petitory action under ordinary legal process.

On the- return day of the rule, November 23rd.,there was judgment for plaintiff. Prom this judgment defendant took a suspensive appeal returnable to this Court on December 10th.1917.

Before the return day of the appeal,plaintiff and appellee procured the transcript from the District Court and lodged it in this Court on November 30th. 1917. On the same day he obtained from this Court an order specially assigning this case fpr trial for December 7th, 1917.

Thereupon the defendant and a.pellant moved this Court to set aside the order fixing this case for trial for December 7th. upon the ground that appellee had no right to obtain the transcript and file it in this court, and that the case could not legally be fixed before the return day.

Article 590 of the Code of Practice says:" If the appellee prefers tc have judgment on the appeal he nay obtain a copy of the record from the lower court, and bring it up to the appellate court, and may pray for judgment, or for the dismissal cf the appeal, in the same manner as if the record had been brought up by the appellant. See also C.P.884.

In Barbarin vs. Armstrong 2La.208 the transcript was not brought up by either the appellant or the appellee; it was filed by the Clerk of the Parish Court. The Court sustained the action of the Clerk, and entertaj.ned a motion to affirm the judgment with damages.

In State ex rel Duffel vs. Marks 30A.70 the Court said that any interested party was authorized to file the transcript -in order to protect the constitutional right of appeal.

In Wheeler vs. Wilson 137La.975 the Court recognized the right of the appellee to file the transcript of appeal before the return day, to have the case put on the preference docket if it was entitled to be there^and to move to have it fixed for trial on a special day as a preference case. ^

These decisions establish beyond a doubt the right of the appellee in this case to have brought up the transcript. The motion of appellant to Set aside appellee's proceedings in this respect is denied.

The right of appellee to have his case fixed by preference in the appellate court was also granted by law. Sec. 2163 of the Revised Statutes provides that:

"All suits for the expulsion of tenants, brought in pursuance of this act shall at all times be tried by preference in the Supreme Court of this State, any law or laws to the contrary notwithstanding."

In State ex rel Matt vs. Judge 37A.843 the Supreme Court said that the proceedings for the ejectment of tenants under sections 2155-2156 of the Revised Statutes were "summary" and entitled to be fixed in the appellate court after three days notice — also 22A.293.

When section 2153 of the Revised Statutes was held to be repealed by Act 550’of 1884 which vested the Supreme Court with authority "to regulate the trial of causes before lt"^that tribunal decided that "the policy of the law and the better administration of justice required a speedy trial of causes" of ejectment and , "on that ground" granted an order to fix .the trial of the case, after three days' notice. Godchaux Vs., Bauman 44A.253, See also 16A.182, C.'r:. !,66«

The defendant also pleaded want of jurisdiction in the District Court. The defendant occupied the premises as a tenant under a lease for one year begining October 1st. 1916 and ending September 30th.1917 for the yearly rent of $432.00.

Section 2156 of the Revised Statutes provides that:

"Whenever the monthly or yearly rent paid by the tenant, or the lease which he shall allege to hold shall exceed the sum of one hundred dollars, then the summary proceeding allowed by the preceding section for the possession of leased property shall be instituted or carried on before any parish or district court having competent jurisdiction in the manner provided in the preceding section, and the cases shall at all times be tried by preference, after three days' notice."

Articles 126 and 143 of the Constitutions of 1898 and 1913 confer upon Justices of the Peace throughout the State and upon the City Courts of the Parish of Orleans jurisdiction in " suits by landlords for possession of leased premises when the monthly or yearly rent, or the rent for the unexpired term of the lease does not exceed" the amount of one hundred dollars.

Whatever may be the ambiguity of expression contained in these statutes, whatever may have been the former jurisprudence interpreting them, whatever may be our own opinion concerning their meaning, we are bound by the latest dpinion of the Supreme Court upon the subject. In the case of Dreyfus vs. Process Oil Co.140La. 50 the Court said that the amount of the "yearly rental" in excess of one hundred dollars fixed the jurisdiction in the District Court, after the lease had expired.

The defendant also pleaded that the plaintiff was without right of action for two reasons: first, because plaintiff had not leased the property to defendant, and second, because, on the date of the filing of the suit, the lease had expired by limitation and had not been continued by reconduction, and plaintiff's only remedy Was by petitory action.

The answer to the second proposition is the lahguage of the Act 313 of 1908. It provides that whenever any lessor "shall be desirous of obtaining possession of the said leased premises upon the termination of the lease either by limitation, or by non-payment of the rent when due, or any other breach of the said lease, ,he shall demand &c."

It is self-evident that the statute can be resorted tó .only in those cases when the' tenant has lost the right to continue to occupy the leased premises by the terother inination of the lease or for any of the/reasons mentioned by the law. Such was the state of facts in Dreyfous vs. Process Oil Co., 140La.50, and Godchaux vs.Bauman 44A.253.

It is anciaat law that the tenant, having entered into possession of premises as such, cannot by his own aot change the character of his possession, and, as to the lessor, always remains his tenant. 1H.D.p.800No.6; 2H.D.1194 No.17; 17A.63; 153; 23A.585; 33A.149; 30A. 808; 37A-732; 40A.634. 1 Greenleaf Ev. Sec.25; Bigelow on Estoppel p.390.

C.C.3441 (3404) Those who possess, not for themselves, but in the name of another, as farmers, depositaries and otherswho acknowledge an owner, cannot acquire the legal possession, because at the Commencement of their possession they had not the intention of possession for themselves but for another.

C.C.3514 (3480) "One cannot prescribe against his own title, in this sense, that he cannot change by his own act the nature and the origin of his possession. Thus, he whose possession is founded on a contract of lease which is adduced is considered as always possessing by the same title, and cannot prescribe by any length of time."

Plaintiff, as purchaser of the property, had a right to proceed under the provisions of Act 3X3 Of 1908 'against the tenant of his vendor. By his purchase, he became the landlord of his vendor's tenant he found in possession, and the tenant became his tenant.

In Walker vs. Van Winkle 8 N.S.560 the contention was, "that it was the intention of the Legislature to confine the privilege of removing the lessee by summary process to the immediate lessor, and that it did not extend to his assignees." The Court said: "we are of opinion that the lessor, and the representatives and assigns of teh lessors, may exercise the remedies given by this enactment. According to the 2704th. article of the Code, the purchaser of the thing leased takes the property subject to the lease,and is bound by the contract of the original lessor. Báing thus subject to all his obligations, it clearly follows, that the lessee is entitled' to every remedy given to enforce the rights growing out of these obligations."

The right of the purchaser to this summary process was also recognized in Godchaux vs.Bauman 44A.256 affirming 8N.S.563; and in Lopez vs. Theriot 117La.534 both were affirmed.

In Hinrichs vs. Tulane 49a.1036 the Court said:

"When it purchased the property in April, not only was the building at Ho.14 Magazine Street standing, but plaintiff was occupying it under a recorded lease. By its purchase defendant assumed the' obligations of this lease and the character of lessor towards the plaintiff."

C.C.2011 (2006) "Hot only the obligation, but the right resulting from a'contract relative to immovable property,- passes with the property."

Defendant's last contention is, that prior to the expiration of the lease he had renewed it with plaintiff's vendor. There is no pretense that this renewal was registered in the Conveyance Office. Inasmuch as a lease is not binding on a purchaser unless it is registered, neither can a renewal thereof be binding upon him. 3A.198; 30A.436; C.C.2266; 6A.729; 33A.1121; 34A.983; 4ÍA.735; 45A.853.

On October 19th. plaintiff notified the defendant tc vacate on October 31st.

Judgment affirmed.

December 24th.1917.


text:
    H. F. HINRICHS VS EDMONDS REALTY & INVESTMENT COMPANY
    NO. 7254
    CHARLES F. CLAIBORNE, JUDGE.
    March 11th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff, a building contractor, sues the defendant for a balance due on two building contracts.

He alleges that on June 3rd 1914 he made a contract ■with the defendant to build a double two story dwelling on lots designated 83 Nos, 1109-1111 Fern Street, for the price of $5,300,00; that he performed his contract; that defendant paid him on account of this contract $5,180.00, leaving a balance due thereon of $120.00;

That he also executed the following extra work;

Chain wall and paving shed $ 44.10

2 Flue thimbles 3.00

2 Clay crooks 3.00

Brass house-numbers 2.00

Wheeling filling 6.15

Grade certificate 2.50

Changing florentina glass 2.50

Total — '—------------------------------------$ 63.25

That there is also due him a balance for extra work on a previous contract for the buildings Koa. 1101-3-5 — 7 Fern Street, as follows:

Surveyor's Plan $ 9.70

Filling as agreed 25.00

Changing stain Lo white 40.72

Receptacles In base boards 18.00

painting 6 mantels t 12.00

China case in kitchen '$ 12.00

Wash bench $ 2.25

4 Flue thimbles $ 6.00

Brass house-numbers & 4.00

Total-----' —.....................—......—$155757—

Amount claimed for extra work ¿L&rve- ___ 63.25

$155.52

Balance claim on main contract j120.00

.Inking a total of 5312.92

for which plaintiff claims judgment against defendant

Defendant admits owing the plaintiff a balance of $120.00 upon the main contract, but denies owing ;192.92 for extra work.

Assuming the character of plaintiff in reconvention defendant arel*»" i-hst acoordi^ ir ¿*r rrrír.nct aneó rr plaintiff was to have completed the buildings before September 30th. Midi (hat- they «ere not completed and delivered to defendant hey accepted by it until November ISth. 1914; that the renting season in this City begins on October 1st, of each year; that the buildings"were to be rented and would have been rented at S monthly rental-of $37.60 per side", by which he lost $102.00; that plaintiff-failed to-eonneot the plumbing with the meter for which-he had to pay $6,00; making the stun of $108,00 which the defendant elalms in reoonventlon. Defendant therefore admitted owing the plaintiff, in full settlement, a balance of $12,00 which it tendered.

There was Judgment in favor of plaintiff for $120.00 .rejecting his demand for extra work; and judgment against the defendant rejecting its reconventlonal demand.

The.reasons given by the judge were that "the evidence showed that the houses were finished within the time agreed on", and that the reconventlonal demand was "an afterthought and not supported by évidenoe/" The Judge denied the claim for extra ^work upon the ground that "it was made in the faoe of a stipulation of the first oontraot that no charges for extra work would be allowed unless ordered in writing before the extra work was L done", and that plaintiff offered no writing.

Plaintiff has appealed.

Defendant has Joined in the appeal praying for Judgment on his reoonventional demand.

Plaintiff's claim for a balance of $120.00 upon the main contract being admitted, the only two questions in controversy are 1st. whether plaintiff can claim for extra work notwithstanding the following stipulation in the two contracts:

"Art III. It is furthermore agreed, that during the progress of the work, should the owner, architect or agent, desire any alteration, same shall be made at a reasonable rate, added to, or deducted from the original contract cost, and shall •not be binding unless submitted, in writing, by the contractor to the owner, architect or agent, and the consent of the owner, architect or agent obtained thereto in writing."

/ Articles 2763 and 2764 of the Givi provide that an undertaker, v/orking under a plot agreed on, cannot claim an increase of the price agreed on, on the plea that the original plot has been changed, unless he can prove that the changes have been made in compliance tilth the wishes of the owner. But an exception Is /nade to this rule, whenever the change is so great that it could not have escaped the knowledge of the owner, or whenever it was necessary tnd had not been foreseen, 6 M 386-2 La 490-4 La. 101-5R 1BO-181-9R 404-10n 97-23A 709-4R 399-12A 621.

It has been decided that parole evidence is admissible to prove a verbal agreement to alter the ox-iginal written contract. 2A 490-4LS 30-10R 95- 1 B. D. p 540-0 1-1 L. D. p 252-34A 517-36A 121-37A 254-113 La. 1057-101 0. 3. 522-2 Evans POthier 158.

But is was also decided that when the building contract provided that "no extra was to be admitted unless executed under written authority" no parole testimony could be admitted for extra work. 27A 116-49A 991-51A 285 (289).

But the strictness of the above decislordfwas modified 2S/ ¿z-in Wellman vs Smith 114 La. 230-236 so as to ad^pt itsolf to the letter and spirit of- Article 2764. Vie are bóund to follow it and to hold that notwithstanding a clause in a building contract providing that no claim for extra work shall be made or paid unless the extra work was ordered in writing, an undertaker may prove by parole and will recover for extra work, when it is shown that the owner was aware of the work and made no objections to it, however dangerous such a doctrine might prove to owners, who see the work being done, but have no idea that it is extra, or will oe charged for, over and above' the contract price.

The plaintiff ha*^proved each and. every item of his claim for extras on the two contracts and the Knowledge of the defendant.

But as relates to his claim for extras on the houses NoA. 1101-1107 Pern Street for $129.67 we do not think he is entitled to it, except to $2.25 for a bench ordered on August 5th. 1814. Theee houses were delivered sixty days after the time agreed upon. On Kay 20th» 1914 a check for $1620.00 to his order «ras delivered to plaintiff who endorsed and collected it. On the face of it were written the words: " Fifth and final payment V contract of December 2nd. 1913. At that time plaintiff made no claim for extras. It was only nearly a year after, when this suit was filed; that the extras were claimed. No mention was made, in the petition herein of the first contract; but the suit was pased exclusively upon the second contract of June 3rd. 1914.

The President of the defendant Company testifies to a conversation with the plaintiff on the occasion of giving this check that the plaintiff received it in full payment and in satisfaction of each others claim. The plain*iff did not deny this conversation.

Put the plaintiff is entitled to recover the extras on the buildings 1109-1111 Fern Street amounting to $63.25.

// The ■ defendant has not established his reeonventional demand to our satisfaction.

ííe are not convinced that the building was not ready for delivery on September 30th. Plaintiff says he tendered it on that day and delivered the keys to defendant's agent on October 1st. under defendant's instructions.

Defendant denies this; "so far as he knows he didn't get them." Dut defendant did not make demand upon the plaintiff for delivery of the buildings or the keys. Perhaps if he had done so, he would have obtained both. Although the buildings might not have been completely finished, they might have been sufficiently so to permit tenants to take possession. Defendant's agent says he got the keys only on October 6th. But nothing •r.:.'us that plaintiff was aksed to deliver them earlier. Under ordinary circumstances, a substantial compliance was all that could be required of plaintiff. 114 La. 21.

But it was not sufficient for defendant to show that plaintiff was dilatory in delivering the property. The burden was upon it to show that, if delivered, the building could have been rented. 28A 892. The evidence on that subject is based on belief only.

The evidence does not satisfy us that it was plaintiff's duty under the contract to connect the plumbing with the meter.

It is therefore ordered that the judgment 'tax favor of plaintiff be increased from one hundred and twenty dollars to one hundred and eighty-five 50/100 dollars with legal interest from April 6th. 1915 till paid and all costs of suit, and as thus amended that it be affirmed.

Judgment amended in favor of plaintiff.

March 11th. 1918.


author: St. Paul/ Judge.

text:
    NO. 7255.
    GLEN FLEMING, RECEIVER VS H. E. GROFFMAN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

St. Paul/ Judge.

fil/t/usfx.e^i Plaintiff, who la the Receiver of a defendant oorportalon, brings this aotion upon a oontraot of indemnity, the nature of whioh will hereafter appear.

The defenses are 1. Want of Consideration: 2. That the condition on whioh same wan given has not happened, 0. That the parties for whose benefit same was given, have suffered no loss.

The faots are these: The corporation was organised with the objeot in view of giving a fair or exposition, and Its stock was subsorlbed for that purpose. On December 26th, 1910, the Board of Directors (of whioh defendant was a member) held a meeting, at whioh the following took plaoe:

"Meeting was called to order by President Hobbs, who read a letter from Mr. /G»u*nan outlining the proposition under whioh he would aooept employment with the Association.
"A reaplutlan was offered by Mr. Moore, seoonded by nr. Hartwell, and carried, that;
"Whereas the letter containing a# proposition of Hr. Herbert Kaufman has been presented to us, and carefully considered, and believing that said oontraot is advantagious to the Exposition Eonp any.
"Therefore be it sesolved, that the Exposition Company, enter into said oontraot with Mr, Herbert Kaufman, 'and hereby authorise the President to sign said letter In aooeptanoe thereof on behalf of the exposition company, and to attaoh a oopy of this resolution thereto.
"Ur. Cave stated that he was not in favor of the preposition and voted no. *

At xne same meeting, after the transaction of some routine

business, and before adjournment, the following aotion was taken;

"Resolution was offered by Mr. Wexler, seoonded by Mr. Beetaan, and unanimously carried, xhat in order to guarantee' all subscribers to the Exposition Co. against á possible loss whlol they might sustain in the event no exposition is given, the Board would make an effort to seoure sufficient names to the guárante» to oover Mr. Kaufman's expenses for six months in case there is no exposition held. If the exposition project is oarrled out these gentlemen to be reimbursed for any money the: may have spent in this guarantee.
Mr. Wexler, Mr. Hartwell, Mr. Preeman, Mr. Beekman. Hr. Groffman, and Mr. Grünewald, pledged themselves for #500 *aoh on this guarantee. Mr. Asohaffenberg, Mr. Mr. Pfaff. Mr. Moore and Mr. pave, pledged themselves for #300 aaoh, Mr. Smith pledged himself for #100.

On the day following the meeting of the Directors, or within a few days thereafter, the following dduument was executed;

"Appreciating the servooes of Hr. Herbert Kaufman as organisation manager and advisor to the Exposition Co. and his peculiar fitness for the work to be undertaken, the Board of Directors at a meeting held on Friday December 86th, unanimously accepted his proposition for the continuance of his services at a compensation of $12,500 for a period os six months, and for an additional $12,500 for a further period of six months provided the Exposition be given, of ./hioh the Board has no doubt.
"In order to guarantee the subscribers to the exposition against the possible loss thioh they might sustain in the event no exposition is given, the undersigned each for himself and not for the others, guarantee to the Exposition Company the amount set opposite their respective names; and in the event that it should be decided at the expiration of six months from January 1st 1914, not to hold an exposition in the City of Hew Orleans, each of us hereby agrees to pay the amount set opposite our respective names to the Exposition Co in full satisfaction of the guarantee herein given.
(Signed)
Ben Beekman, 12/27/13 $600 Sol Wexler 12/27/13 500 0. A. Hartwell 12/27/13 600 H. B. Sroffman 12/29/13 500 John J. Cannon 12/29/13 600 Theo Smnewald 12/29/13 500 Tal llers 12/29/13 600 Lawrence Jabacher 12/30/13 600 Thomas J. Treeman--------— 500

This document tgus executed was dellwered to the Exposition Company, and placed among its arohives, where it was found by the Receiver.

On Hay 23rd, 1914, the Board of Directors met in special session and the following aotion was taken;

"The matter of cancelling the contract with Hr. Herbert Kaufman was taken up and opinion from the Attorneys read.
"The following resolution was proposed by Hr Casanas, seconded by Hr Aschaffenberg and unanimously carried;
"Resolved, that it being utterly impossible and Impractical to hold fiiSMí eh exposition in the City of Hew Orleans as contemplated in the letter of Hr Herbert Kaufman to this Board, of date December 23rd 1913, under which letter, and in in consideration of the holding of suoh an exposition this Board signed a contract with the said Kaufman for a period of one year, with the privileg. of rescinding same at the termination of six months if suoh exposition was abandoned, a resolution to that effect having been adopted on December 24th 1913, it is the desire of this Board now to abrogate the said contract with the said Kaufman in so far a. the six months beginning June 24th 1911, are ooncemed, for the reason above stated, and the action of this Board on December 24th 1913, in so far as the said six months are concerned, is now annulled and avdided."

The candor of counsel relieves us from the necessity of pointing out motive whloh induced the defendant and his associates to execute this document. Xrom the brief of defendant we quota as follows; t

"four Honors oan readily see why the directors of the Exposition Company undertook to sign the document which they did. They had entered into a contract with Ifr Kaufman by which they agreed to pay him at the prinoely rate of $22,000 per annum* They felt that this was perhaps, if not beyond, at least straining their authority as directors, and so as to relieve themselves from any possible eventual criticism by the stockholders, a certain number of them, without receiving any consideration whatever, signed the document on which this suit is founded, agreeing to Pay $200 each to protect the stockholders against any possible loss."

And the very olear and full recitals of the petition show us the exact situation of the corporation's affairs.

Xrom this petition we quote as follows;

"Now your petitioner further represents that the Southern States Xair and Pan American Exposition Company is hopelessly insolvent.
q"fhat in order to pay the debts of said Company it is neoessary that your petitioner in hia official capacity should oolleot all the outstanding debts and obligations due to the Said Company, including that still due by the defendant herein, and also the due and unpaid subsoriptions to the capital stock of said Company; all of which, if oCllooted, will still leave said Company insolvent."

1.

ye are of opinion that the document sued upon was given upon sufficient consideration. Defendant had just approved in a in flduolary capacity the expenditure of money which dthera had an equitable interest. He acknowledged that his act might have been subject to adverse oritioism. He e cecuted a document intended to disarm that oritioism, and placed it in the hands of the Corporation, the trustee for those others. He meant that on finding it they should porbear to oritioise and forbear to test judicially the legality of his aotion, and should rely exclusively upon his bond; and he left them free to accept it as long as it was not withdrawn.

11

We are likewise of opinion that the condition on whioh the obligation was given has happened. Adhering to the letter of an instrument somewhat unskillfully drawn up, defendant insists that the condition upon whioh the bond was given was that it should be decided within six months that no exposition whatever be given. By every technical rule of oostruction, this, ééjtéiHHHHHt interpretation must be rejeoted. ¡Chus, the instrument was drawn by defendant and must be construed against him where ambiguos. And éiééétt again, defendant and his associates had it in their power not to decide within six months and thus ahnul the bond; but the bond must be saved if possible.

But it is perfectly clear that what defendant and his associates had in mind was an exposition according to the plans of Kaufman. Ihey realized that if such an exposition failed, then the salary paid Kaufinan might be a dear loss to stockholders, and it was this loss they meant to reimburse. A condition in a contract must be Interpreted according to the same rules of common sense which should prevail in the interpretation of the main obligation, and hence the meaning thereof must be drawn from the whole instrument and not from a single clausa.

111.

We think however that the obligation herein assumed was intended solely for the benefit of stockholders and not for the benefit of creditors; that it was intended to indemnify the former for any loss which they might spstaln by reason of the salaries paid to Kaufinan, but was never intended to inure to the benefit of any others. She resolution of Deoember 26th, and the bond which followed it both deolare explicitly that the purpose thereof is, "In order to guarantee the subscribers to the exposition against any possible loss whioh they might sustain in the event no exposition was given."

And we likewise think that the subscribers have not suffered the loss whioh the directors had in mind when they undertook to bind themselves. lor although the resolution and gaurantee both speak of "any possible loss whioh the subscribers might sustain in the event no exposition is given," yet from the body of the one and the preamble to the other, it is perfectly clear that they had in mind only the "expens###, i.e. salary of lir Kaufman. In other words they did not intend to gaurantee the success of lir Kaufman's plans, of which the subscribers must necessarily soon become aware and approve or disapprove for themselves; but they did mean that the subscribers should not in addition to bearing any loss resulting from the weakness of Kaufman's plans, be called upon to pay the large salary of which they might possibly not be aware.

Bow the event shows that they were not, are not, and cannot, be oalled upon to pay this salary, as the paying out of this salary has affeoted the creditors alone and made not one whit of difference to the stockholders.

For suppose that instead of merely ¿raaranteeing the reimburse» ment of this salary the directors had paid it out of their own pockets; or that when Kaufman was sent off they bad promptly paid ### In to the corporation the amount of their guarantee: or that Kaufman himself on leaving had reimbursed the corporation the full •mount paid him. This would hav« been all that the most exacting stockholder could have asked. And yet the only effect thereof would have been to leave $12,000 more for the creditors, and it would have ######### profited the stockholders nothing, since the corporation is "hopelessly insolvent." and would still be insolvent if this whole amount and all stock subscriptions were collected in full.

Bearing in mind then that these directors had no intention to guarantee the suaoesa of Kaufman's plans, and no intention to guarantee the debts of the corporation: that had their guarantee been fulfilled to the letter or even anticipated, the stockholders would have gained nothing and stood no better off than they stand now: bearing this in mind, we are clearly of opinion that the Keoelver is entitled to collect these amounts neither for the benefit of the creditors who are without rights upon the instrument, nor for the benefit of the stockholders who hare not suffered aay loss which the defendant agreed to make whole.

New Orleans La, March 1918.

The Judgment appealed from was for defendant, and we find it oorreot.

Judgment Affirmed.


author: CHARLES F. CLAIBORNE, JUDGE

text:
    JOSEPH A. GAUCHE VS SCHARFENSTEIN & SONS
    NO. 7258
    CHARLES F. CLAIBORNE, JUDGE
    April 1st. 1918.
   CHARLES F. CLAIBORNE, JUDGE

This is a suit to recover of a former teaadfc dMW4B6i< for injury done to leased premises.

The plaintiff alleged that he leased to the defendants the three lots forming the corner- of Julia and S. Liberty Streets together with the improvements thereon for a period of twelve months ending September 30th. 1915; that the lease stipulated that "the said premises and appurtenances, including the locks, keys, and other fastenings, are delivered in good order, and the lessep" obligate themselves to keep the same in like good order during the term of this lease XXX at their own expense XXX and at the end of the lease to return without further notice possession of said premises and appurtenances by actual delivery of the keys to the lessor, in like good order as received, the usual decay and wear and tear only excepted"; that said defendants at the end of their lease returned the property in a wretched condition; that in order to put the property back in the same condition in which it was when rented to defendants he spent $139.91 which he claimed from defendants.

In a supplemental petition plaintiff averred that the money expended by him consisted of the following items:

After vainly excepting to plaintiff's petition for vagueness defendants answered that the property above mentioned

had been leased to them faux for five years; that they returned it| on September 30th. 1915 in the same condition in which it had been received by them, except the damage that was done to the buildings and fences by the hurricane of September the 29th. 1915; that the plaintiff expended money for making entirely new fences and other improvements necessary to rent the property.

Plaintiff had judgment for $125.00. The Judge of the District Court, in his reasons for Judgment says;

"The itemized bill attached to plaintiff's petition discloses the nature of the expenses and are sufficiently established. These items however show that the work in question renews the property without an allowance for "usual wear and tear" and which therefore exceeds the value that plaintiff is entitled to claim."

The defendants have appealed.

The obligations assumed by the defendants in their lease were only an affirmance of the duties imposed upon them by the law. C.C. 2710 (2680) to 2722 (2692). They were to enjoy the leased premises as good administrators, according to the use for which they were intended by the lease; they were presumed to have received ,the premises in good order and they were obligated to return them in the same state; they were to make at their expense all repairs rendered necessary by their fault or negligence, not Including those which unforeseen events or natural decay and wear and tear or unavoidable accidents might occasion. In other words they were to be liable for the abuse and not for the use of the property.

Plaintiff testified that he originally leased the premises to the defendant four or five years ago; and renewed the lease from year to year; that the property was in good condition; that it was always used as a coal and wood yard^that it was returned to him on September 30th. the day after the storm; that he visited the property on the next day October 1st., that it was in an awful condition; the glasses were broken and the doors and some of the sash frames In the inside were out; that he spent $139.91 to repair it; Pitard's bill represented locks, keys, glass and hinges; Woodward Wight Company was for paints for the Inside of the building; Clark was for brick, sand, and cement to repair the banquette; but he was unable to say how many locks, glasses, or hinges Pitard's bills represented or how much each cost, and where they were put; he was unable to state where the labor of Brown or Johnson was applied, and how long it was oucupied^or where the lumber of Otto Knoop was used-; the bill of DeVj*e & Reynolds was either for paint or putty.

As we gather it, plaintiff's claim is for locks, keys and hinges. The testimony is that there were two new locks put on, and about sixteen new hinges; but there is no proof of what any of them cost. Some glasses were missing and replaced; but how many does not appear.

It does not follow that because the materials mentioned in plaintiff's petition were used in his building that defendant must pay for them.- It must be shown that they were for some repairs for which they were liable.

Hew fences were erected by plaintiff along Liberty Street and Julia Street and in the rear of the lots. But we are not satisfied that the necessity for these new fences was eajised by defendant's fault. Plaintiff's theory is that they were rotted and caused to bulge out by defendant's heaping wood and coal against them. Wood is usually piled along a fence and not against it. This is what the defendants say they did. There is not sufficient evidence to contradict them. Such a practice was not calculated to rot a fence. But i£ it was, it was such a use of the property as was well known to plaintiff for several years, and such as was contemplated and intended by the lease.

Besides the proximity of the wood to the fence was only transient, as the wood came into, and went out of^ the yard as the wood was bought and sold. The same remarks apply to the weatherboards on the side of the house. Nor is there satisfactory evidence that coal was heaped against any particullr part of the fence, and that it was rotted by reason thereof. The defendants testify that the large lumps of coal were put back of the pile so as to form a bulwark to support the coal and leave a space between it and the fence.

There is no evidence concerning the condition of the fences when defendants first leased the property; but the proof is that the improvements are 25 or 30 years old, and the presumption that the fences date back to that period has not been rebutted,

The only items established to our satisfaction are the following:

It is therefore ordered that the judgment of the District Court in favor ~ undred the balance of his claim be rejected; that defendants pay the costs of the District Court and the plaintiff pay the costs of Appeal. and twenty-five Dollars that

April 1st. 1918


text:
      By Judge St. Paul:
    Mrs. Patsy Dyer vs Grand United Order of Odd Fellows.
    No. 7259.
    Court of Appeal, Parish of Orleans.
   o..É,m i o,».

This is a Claim upon a policy of life Insurance. The defense Set' yp is. thaw-va»-snsitSM'of'hie death (Hay 22nd, 1916) the assured was no Itsngeí a member.of the defendant institution, having been dropped from member» Ship.' ly hie subordinate lodge .to April 25th."

The- faots of the matter- are these. In the month of Paroh the deoVaeed had padd all his indebtness in full to the end of that month. The testimony of two witnesses who are unimpeaohed, and who are corroborated by Ah: undoubtedly genuine and- contemporaneous entry (h. #3, p, 95) shows however thq^' at * meeting-held on April' 25th the deceased was declared indebted to the IfdgA i>S the sum of d-i.OO, being, dues 50/, endowment 50/, a'funeral, assessment of íl.OO, and a fins for failure to attend a funeral $2,00.

This' Indebtedness -had' of course- all been incurred during, that ¡eame month of April.

After' ah'effort to rotify the assured through his henifioiaiy {which.¡.the trial judge. thought, insufficient) and the,'amount not having been the assured wa's considered as though ha had been dropped; but. no fomnal aot-J-QU-was ever'taken by the lodge- in that respect.

The-situation Was therefore this -As ;showh by the by-law»offered.in evidence,'the defendant; institution consists, of 1.- A Grand !¿4¿e;. 2*v-.An- Endowment-Bureau of -che Grand Lodge; and 8,* Subordinate Lodgeh,' under' ■Iht-jurisdiótloA of ¡.'the, Grand Lodge.-,.. The-Endowment Bureau has exoluaiye.'ao»- ' tro¡l.¿f¡¿aattera rel¿-tiág;,to'Life Insurance* the Subordinate1 LodgeS havf’ exclusive' jurisdiction over-sick ’and’ fiméral benefits,, and oysr the’ conduct -ojf-thsl!) /Both¡ti^-'Bhrsau; and the'Lodgeil make.-their own-regulations'and aseses, ¡theirqwn lute;.but the Lodges oClleot- the- dues for. the • Bureau. ■'

Fróm thei by-laws of the, subordináis lodge, we -find -lst- fhav the-asiwibiArise» only.authority for depriving a member-of his "claims to the .ifiriltge* of the order”, is'-his neglecting- to'pay arrears,for twelve months, ¿rtví.lb, -Sec. 8; 2nüt- lhat ¿'member in arrears for three months dues ia not WWi.t.liid, to physiaian or'drugs,.Art, 13 Seo.' 1; and 3rd- That if a member be In erreers to the Endowment Fund. f«r two months dues the beneficiary will not-•be patdthe amount of-the-policy, Art,, .18 Sec, 1,

Erom.the regulations of Grand Lodge for the government of the fctoíto ^.Endowment w* find, 1st» That' the monthly dues are 50/ per member to feo do coileoted. by the vSúar&tf&wtfc* tod&r Arajl 'fGjpwarded at once to the Bureau, without being used for any other purpos*^Art. 1 Cec, 4; 2nd- Chat the beneficiary Kill not be paid the endowment if tne assured owes the Bureau two months due»--o'r more. Article 2, Sec. 4; Pointers No. 3, p. 34.

We see therefore, 1st- Chat the assured, vho was not twelve months in arrears, could not be deprived of the. "privileges of the order" and hence was still a member thereof; 2nd- Chat the dues to the Lodge and the du^s to the Bureau were distinct and could not be mingled; 3rd- Chat the assured could be denied the benefits furnished by the Lodge itself, if he owed the Lodge three months dues (or its equivalent); 4th- Chat his endowment could not be suspended unless he owed the Bureau of Sndownent two months dues, no natter hov: much he might owe his Looge; and 5th- Chat the assured owed the Bureau only the dues for the month of April, the i!ay dues not being payable at the time of his death.

It is clear therefore that the policy was still in force at the time the assured died.

77e note that Article 2, Sec. 4', and Pointer No. 3 seem to conflict with the fonn of notice provided by Article 1, Sec. 6, of the Bureau Piales (p, 6), but this conflict must be resolved in favor of the assured who is not 'responsible for the conflict and has all along paid his premiums.

Che judgment appealed from is correct.

Nudnne nt Affin.od.


author: St. Paul, Judge.

text:
    NO. 7264
    STATE, EX REL, SIMON J. LEVY VS HON. E. K. SKINNER, JUDGE.
    STATE LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION,

St. Paul, Judge.

Relator sued for &150 of oast due rent. He alleged that there was also due him under th° lease the further sum of $b59 in nine monthlyinstalments of $50 each, not yet matured; and he made the necessary-allegations for a writ of provisional seizure.

' • He asked for judgment presently for $150, and in substance, for further judgment for the amount of each note as it matured. He also asked that the provisional seizure be maintained and that the property seized be sold to satisfy his matured claim at once, and his unmatured claims as they would become due.

Hie writ issued, but the judge released the seizure on a bond for '■250, of which relator now complains as not being sufficient.

Admittedly the lease contains no clause by which the failure to pay one or more installments. And because of this the respondent judge thought the relator's "claim" amounted to only $150, to wit, the amount actually matured; so that he released the property seized on a bond sufficient only to cover' that amount. C. P. 287.

We think this was error. The amount of relator's "claim" in the suit, is the total amount which he seeks to recover therein.

And since Art 287 C. p. expressly authorizes a seizure for rent not yet matured, and the law abhors a multiplicity of suits when the object sought may be attained in single suit, it follows that the landlord must be entitled to judgment for his rent as it matures in the same suit in which flm provisional seizure issued.

Ihe Sheriff, however, should not at any one time sell more of the seized property than will suffice to pay the amount then matured; the rest he should hold until satisfaction of the claim in full as it matures.

Under the circumstances a bond for *250 was not sufficient. It should be for an amount sufficient to protect plaintiff's whole claim, to wit, $600.

New Orleans, la, December 20 1917.

It is therefore ordered, that the WrK^of prohibition herein issue be made perpetual; that the order of the court below releasing the seized property on a bond for $£50 be annulled.; and that the sheriff again take into his possession the released property and hold same subject to the further orders of the court*


text:
    NO/ 7277.
    GREATER NEW ORLEANS HOMESTEAD ASS'N VS JAMES P. HOFFMAN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      New Orleans, La, March 1918.
   O P I H I 0 H.

St. Paul, Judge.

This Is a oonteat over a fund In the hands of the sheriff, being the balance of the prooeeds of oertaln real estate sold to satisfy a vendors /len. One party claims under a mortgage, prior in time: the other, under a builder's lien later in date but superior in rank## if reoorded in time.

The work involved less than $500 and was. done under a verbal agreement. A nrioe of $585, for part of the work, had at one time been fixed, but nothing was then done. Some months later the work first oontemplated together with considerable other work, was done under sn agreement that the price would be reasonable and would not exoeed, approximately $450.

. When the work was finished $438 was asked and consented to, and $85 was paid on aooount. A lien for the balanoe was reoorded within seven days after the work had been opmpleted. This waB in time. Brashear vs Cooperage Co, 50 An. 687: Allen Wadley Co vs Huddleston, 183 La. 585.

Judgment affirmed.


text:
    WARREN JOHNSON, APPELLANT VS BISSO TOW-BOAT CO., & AL
    NO. 7279
    April 8th. 1918.

      CHARLES F. CLAIBORNE, JUDGE.
   Plaintiff claims of defendants William A. Bisso and the Bisso Tow Boat Company a commission of $1250.00 for procuring the sale of a barge.

Plaintiff averred in his petition that he was a mechanical engineer and that he had a client desirous of purchasing boats and ships; that he called upon William A. Bisso, the President of the Bisso Tow Boat Company and stated to him that he could sell Sunni for him, or for the company owning it, the barge or hull "B. W. Winchell", for a commission of five per cent; that thereupon the said Bisso acting for himself and for the Bisso Tow Boat Company, the owner of said barge as he believed signed the following letter:

March 26th. 1916.
Mr. Warren Johnson,
Dear Sir:-
Ref erring to hull about 300 ft.x40 ft.xl2 ft .'deep which we have on hand and on which we gave you a ten day option from March 22nd. at $23,750.00, beg to stat.e, in accordance with our conversation to-day that if you are able througfct-your efforts to make a ax sale of this hull at $25,000.00 we hereby agree to pay you a commission of 5$, amounting to $Í250.00. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Very truly yours,
"Signed" W. A. Bisso.

That in pursuance of said letter petitioner procured the sale of said hull or barge "B. L. Winchell" to the Gulf Refining Company through G. N. Bliss, for the stipulated price of $25,000.00 and thereby earned his commission of $1250.00, which the defendants refused to pay to him.

The defendant, William A. Bisso, denied any indebtedness to the plaintiff; he denied that in the above transactions he' had acted individually or for the Bisso Towboat Company, or that said Company was the owner of the barge at that time; that he wrote the above letter acting for and on behalf of the New Orleans Coal Company, the owner of the barge at that time; that the barge was sold by the New Orleans Coal Company to the Bisso Towboat Company^and by said Company sold for ¡p(25,000.00 without agreement to pay to the plaintiff any sum whatever, plaintiff's only interest in the sale at the time being to secure from the purchaser a lucrative contract for work on said barge.

The Bisso Towboat Company denied any indebtedness to plaintiff; denied that Bisso had acted as the President or on behalf of the Company in his transactions with the plaintiff, and denied that it was the owner of the barge Winchell at that time; it averred that subsequent to the date of the above letter it acquired the ownership of the barge from the New Orleans Coal Company, in which deal the plaintiff was in no way concerned; that thereafter it sold the barge for |25,000.00, without any. agreement to pay the plaintiff any commission; that plaintiff was very much interested in securing a remunerative contract from the purchaser in case of a sale, and did secure said contract after the sale.

Plaintiff's demand was dismissed as in ease of non-suit and he has appealed.

There are no written reasons for judgment in the record. Three questions present themselves for solution:

1st. Was the barge Winchell sold for $25,000.00?

2nd. Was the plaintiff instrumental in procuring the purchaser?

3rd. Who is liable for the commission promised him, William R. Bisso or the Bisso Tow Boat Company?

1st. The answers of both defendants admit that the barge was sold by the Bisso .Towboat Company for $2^000.00 and the evidence shows that the company got the money.

2nd. Defendant William A. Bisso admits^ and the evidence shows beyond a doubt that the barge was sold to the Gulf Refinlng Company represented by 0. N. Bliss. The evidence also establishes that the plaintiff was alone instrumental in procuring the purchaser. As early as February 25th. 1916 the plaintiff wrote to G. N. Bliss of Port Arthur, Texas, the Marine Manager of the Oulf Refining Co.;

"Dear Sir:- I have located an old transfer steel hull 350 ft. x 40 ft. x 12 ft. with round knuckles and model ends with rudder at each end. Excepting for a few dents along the knuckles, she is in an excellent state of preservation snd would make a splendid ?lver barge. A 3-16 deck, longitudinal wooden blkd, deck hatches with ladders and a wooden fender along side could be Installed at a cost of about $28,000.00 and she can be bought for about $27,000.00 capacity would be something ■V&. over 21,000 Mm. on 10'3" draft. Are you interested?"

Receipt of this letter was ckx acknowledged from the office of the Oulf Refining Company, with the information that Mr. Bliss was out of town, but that the letter would be placed before him upon his return.

Following this correspondence was .the letter of Wm. A. BISao of March 26th. reproduced above. Upon the same date the plaintiff again wrote:

"Mr. G. N. Bliss,
Port Arthur, Texas,
Dear Sir:-
Would you be interested in one or two 11000 bbl. seagoing oil barges which could be converted in about six months. The cost of these barges complete would be about $90,000.00 each and, if you would care to have me do so, I would gladly go into the matter carefully and accurately so as to submit exact tag figures."
Again on March 29th. plaintiff wrote to Mr. Bliss:
"Regarding the convertible barge about which $h£afe.

I wrote you wish to say that this hull is in New Orleans and can be seen at any time. My subsequent letter which crossed yours on its way here contemplated cutting this large barge into two lengths and adding a Modeled bow at each end, making two barges. This barge is in excellent condition, and I believe would make two splendid sea going barges, far better than we Choctaw. Am fairly well through a rough, but more or less accurate^ estimate on the cost of conversion^ and hope to have it completed within a couple of days. "

To this letter Bliss wired the following answer to plaintiff:

April 10th. 1916
Warren Johnson
c/o Johnson Iron Workd
Can you so arrange matters that we can have absolute option on barge you propose to make two barges out of for ten days or until you can furnish us definite cost of converting both barges. Proposition you have outlined looks good to us. Answer."

In answer to this wire plaintiff wrote to Bliss on April 11th.

"Beg to acknowledge receipt of your wire asking that I obtain option on the Bisso barge. Have seen Bisso and he states that he has a party interested whom he expects to see this afternoon at 2 P. M. &c &c."

On April 22nd. plaintiff wired to Bliss:

"Better arrive Monday meet you nine o'clock St. Charles Hotel."

To which Bliss replied:

"V/ill arrive New Orleans Monday morning."

On Monday April 24th. Bliss arrived in New Orleans when the following document, was signed:

"New Orleans April 24th. 1916.
Memorandum .of agreement entered into this date between the Bisso Towboat Company of New Orleans and the Gulf Refining Company of Port Arthur, Texas.

First: In consideration of the sum of Two Hundred dollars, receipt of which is hereby acknowledged, the Bisso Towboat Company, give an option on the Barge L. Winehell" for a period of fifteen days, to the Gulf Refining Company.

Second: Before or at the expiration of this option, if the Gulf Refifling Company concludes to purchase this barge, they agree to pay the Bisso Towboat Company the sum of Twenty-five thousand dollars cash. In the event the Gulf Refining Co., does not purchase this barge, they forfeit the option money, two htmdeadddollars, to the BIsbo Towboat Company.

Third: If the Gulf Refining Con®any decide to purchase this barge, as above mentioned, the Bisso Towboat Company agree to put this barge in the dock at their expense for inspection."

"Signed" Bisso Towboat Company W. A. Bisso, President Gulf Refining Co.
Marine Dept.
G. N. Bliss, Agent
Witness:
J. R. Quaid
Warren Johnson

On the same day the Gulf Refining Co., gave their check for $200.00 to the Bisso Towboat Co.

In order to take advantage of this option the Gulf Refining Company brought from New York their chief Engineer Mr. James Kennedy.

The barge was docked and Mr. Kennedy, Mr. Bliss, and the plaintiff examined it.

The sale was consummated by the delivery of a draft of the Gulf Refining Co. to the order of the Bisso Towboat Co., for $24,800.00 dated May 9th. 1916. ■

The plaintiff testifies that no one else had anything to do with making this sale to the Gulf Refining Co., and his testimony is fully corroborated by G. N. Bliss.

There is no suggestion on the part of the defendants that any one else procured, or assisted In procuring the Gulf Refining Co., as a purchaser. The only defense is that the authorization to sell contained in the letter of March 26th. was to last only ten days, and that it had expired by limitation on April 24th. when the final agreement of sale was made. We do not construe the letter of March 26th. as limiting the time during which the plaintiff was authorized to procure a purchaser and earn a commission.

The words of the letter upon which the defendants rely are as follows: "Referring to hull about 500 ft. x 40 ft. x 12 ft. deep which we have on hand and ca which we gave you a ten day option from March 22nd. beg to state &c." We believe with the plaintiff that these words wer^merely entended to identify the particular barge upon which they had a previous option and which they were by that letter, authorized to sell on commission; but that it did not mean, nor was it intended, to limit the time of the authorization. Plaintiff testifies that, as a matter of fact, on March 22nd. he had a ten days option to buy the barge for $23,750.00. But an option to buy or a power to sell are two distinct contracts.

But whether our interpretation of this letter is correct or not is immaterial. The fáettremains that within the ten days succeeding March 26th. and subsequent thereto and up to May 9th. 1916 the plaintiff, with the knowledge and acquiescence of Wm. A. Bisso, was actively engaged in procuring a purchaser; that he procured the purchaser; that the purchaser was accepted, and the price agreed upon, $25,000, was paid by him to the owner. In the case of Barker vs Jung No. 6611 of this Court we said:

"Real estate agents selling property for the owenr with his consent acquire a right to the customary commission when they have procured a buyer, although the sale be not completed by them, but Is consummated by the owner within a short time with the agent's buyer". Quoting 1A5-3A671-110 La 500 See also 4 Am & Eng Enc Law p 977 979 (b) 3 R 201.

Newman vs Longshoremen 11 Ct App 38

There is no doubt that adopting the limitation of the life of the authorization contended for by the defendants, If the plaintiff had procured a purchaser after the ten days, they would not have been bound to have accepted a purchaser procured by the plaintiff; but It Is equally true that when they accept the purchaser procured after the ten days, the vendors must pay the commission. Having accepted the continuous services, they must pay their value.

There is nothing to shggeat that at any time Bisso put an end to the relations existing between him and plaintiff by virtue of the letter, or that plaintiff ceased to believe that he was exerting himself to earn this commission promised him by that letter. The argument that plaintiff was striving to effect a sale in his own interests only, so as to earn the benefits of what contracts he might make with the Gulf Refining Company might have had some force in the absence of the letter of March 26th. But it imposes no tax on our credulity to believe that plaintiff was actuated by two interested motives, the promise of the commission and the hope of future contrácts with the purchaser. Indeed he testifies that he charged only. $500.00 for the specifications for alterations to the barge, because of his expectations of $1250.00 commission.

We have therefore come to the conclusion that the plaintiff is entitled to his commission.

3rd. But who is to pay it, Wm. A. Bisso or the Bisso Towboat Company?

The defense is pitched upon two propositions first that Wm. A. Bisso is not liable because he was not the owner of the barge.Winchell^and that he was acting for the owner of the barge which was the New Orleans Coal Company on March 26tlij and second^that the Bisso Towboat Company is not liable because on that date it was not the owner of the barge. Both propositions are devoid of force.

It was perfectly immaterial whether Bisso was owner of the barge or not. He had a right to employ some one to find a purchaser for the barge; and he was bound to pay the commission when the purchaser was found by the person employed by him. The letter is signed by him individually and there is no evidence that he informed the plaintiff that he was acting as agent or that plaintiff was aware of it otherwise. /

There is no doubt in ewa minds that William A. Bisso wa3 originally Individually liable, because he signed the letter or agreement in his.individual.capacity. In the case of Harvey vs Hoyle No. 6858,of this Court we said:

"When a party makes a contract with another the presumption is that he is acting for himself and he will be liable personally.
If he is not acting for himself, he must, in order to overcome this presumption, make it clear to the other party that he Is acting in a representative capacity.''

Quoting many authorities, to which we desire to add.

6 Ct. App. 400-48A 209-4 Pothier p 252 $88-Troplong Mandat $ 519 p 492- 4 Fuzier Hermann p 677 $ 12- 2 C. J. p 929 $ 681 p 840-$ 522 — 4 La 62 #Story Agency $ 266-446.

But when one discovers that the party with whom he has dealt has acted as agent he may seek out the principal and hold him liable. 7 N. S. 22-4La 50-234-14 La 491-3A401-5 A 15 2 C. J. p 840 ¡i 522 p 841 note 71 (b) 71 (a) p 818 $ 491 Smith Merc Law p 174.

It is not established with the clearness of which the subject was susceptible who was the owner of the barge Winchell on March 26th. 1916.

It was not Wm. A. Bisso.

It was either the New Orleans Goal Company or the Bisso Towboat Company. The fault of this uncertainty lies with the defendants. One of the reasons is that the offices of William A. Bisso, and of the New Orleans Coal Company, and* of the Bisso Towboat Company, „are all three in the same room! and that William A. Bisso is the President and Manager of both companies* and that the books of both companies are kept by- the same Clerk,and the Minutes of neither Company make mention of these transactions. It would appear, however, by the testimony of Wm. A. Bisso, that the New Orleans Coal Company acquired the barge on July 5th. 1915 for $7625.00. This is not shown however by thebooks of either company, nor from any act of sale, nor does it appear from whom it was purchased.

A pencil memorandum upon a letter head of the New Orleans Coal Company dated 4-30-1916 (April 30th. 1916), six days after the promise of sale by the Bisso Towboat Company to the Gulf Refining Company la offered as evidence of the sale by the New Orleans Coal Company to the Bisso Towboat Company.

It reads as follows:

"Bisso Towboat Co., Profit & Loss Barge finche11
10130.72
127.00
9630.72
373.00
Bark oomet
10130.72
Starred approved for payment
tf. A. B.
President"

The entry upon the books of the Bisso Towboat Co., concerning this transaction appears to have been made as of date. Hay 26th. Wm. A. Bisso does not know what figure of this pencil bill represents the price of sale whether it was $10130.00 or $9630.00jnor are the books of either company produced to make that clear, nor any check or voucher, nor any Act of Sale,

24th. and May 9th. the Bisso Towboat Company acted as owner of the barge and sold it to the Gulf Refining Company. Wm. A. Bisso was President of the Bisso Towboat Company. His knowledge was the knowledge of the Company. The Company therefore must be held to have' known that its President had engaged the services of the plaintifr to sell the barge and had promised to pay him a commisslonjfor so doing. Be that as it may^the fact appears that on April

They never repudiated the action of the President, but on the contrary acted upon it, and reaped the advantages of it, and thus satisfied it. If testimony can be relied on, the Bisso Company through the efforts of the plaintiff, got $25,000.00 for what they paid, at most, $10,130.72. The Company cannot profit by a contract made by its President and at the same time repudiate its obligations. Having reaped its benefits it must bear its burdens

charge to the Jury to the following effect^: "Though by the death of one' of the defendants and the marriage of another, any special power of attorney to spragne, as a manager of the plantation, would be revoked, yet if he continued to act as such, for the benefit of all the eo-proprietors, without any disavowal of his authority, or if recognized, either tacitly or expressly, as such In the 3 Rob 201 the Supreme Court maintained a by the defendants, that they would be bound by his acts."

In 2A 324 it was said:

"A principal who avails himself of a purchase made by an agent by selling the property, will be bound to comply with stipulations made by the agent with the owner at the time of the purchase."

However, by seeking to hold the Bisso Tow-Boat Co., liable to. him as an undisclosed principal, the plaintiff must release William A. Bisso. 2 C. J. p 841 $ 522, p 843 $ 526 24A 341 _ 4 La 234.

It is therefore ordered that the judgment herein appealed from- be reversed and set aside; and it is now ordered adjudged, and decreed that the Bisso Tow-Boat Company be condemned to pay to plaintiff herein Warren Johnson the sum of One Thousand two hundred and fifty Dollars with five per cent per annum interest from June 1st. 1916 till paid and all costs of suit.

It is further ordered that plaintiff's demand against William A. Bisso be rejected at his cost.

April 8th. 1918.


text:
    NO. 7282.
    SUCESSION OF ROBERT HUXEN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I H I O H,

St. Paul, Judge.

08 MOTION TO DISMISS.

This Is an appeal hy an administratrix from a judgment on an opposition to an alleged final aooount. The opponent, appellee here, moves to dismiss the appeal for want of jurladlotion In this court*

The .aooount shows oash assets amounting to Issb than $2000, but the inventory shows total assets exoeeding that amount, to wit, Beal /State $3000 and personal property $1678*98.

On the faoe of the aooount the liabilities of the succession exceed ita assets, but not the amount of the Inventory.

The opposition not only prays for the recognition of plaintiffs olalm (not allowed in the aooount) with a privilege, and that certain other oíalos be disallowed, but it further charges that the account "does not Bhow all the assets of the estate" and prays that it be "emended so as to increase the assets by adding to it such assets as may appear x x x to have been omitted from the aooount.

1.

As it is perfectly clear that the administratrix must finally aooount for every item oontained in the inventory, it folllows that the Inventory sonetltutes ordinarily and primarily the fund to be distributed, and forms the basis of appellate jurisdiction. Success! of Johnson, 141 Da 842. And this inventory continues to be the basis Of appellate jurisdiction until the amount of the assets has by successive diatrlbut ioniboen finally reduced below the lower limit of the oourt first vested with jurisdiction. In re Petit & Boh, 128 Da 148, and authorities there cited.

11.

Counsel for the administratrix, appellant here, states from the bar that the reason why the real estate does not appear on the aao is that in point of fact the said real estate does not belong to the Suooassion.snd never stood in the name of the deceased; that the only interest of the deoeased'in said real estate was an option therl upon whioh the deceased had made a deposit, whioh is acoounted for hy an item on the account reading; "Cash interest on deposit $116*"

But the record contains not a scintilla of proof to that effect, and counsel for the opponent states from the bar that he does not concede this as a fact.

Now, as the opponent may suoceed in establishing his olaim and yet fall to have his privilege recognized or to have stricken from the account those items whioh he opposes, it is clear that he has an Interest in having the assets of the suooession lnoreasid# so as to satisfy his olaim.

Hence it follows that there is a real controversy over the status of this real estate with the certainty that the administratrix must ultimately account for this property in some way, and the possibility that she may De condemned for its value. In the latter event the assets of the succession would be increased above the lower limit of the jurisdiction of the Supreme Court and that court has jurisdiction over such controversies.

She precise point was raised and passed upon in Suooession of Scott, 41 An 669. Shore the administratrix filed an account showing assets for distribution amounting to less than $8000, to whioh an opposition was filed praying that other assets be added to the acoount, whioh if allowed would raise the amount to be distributed above $2000; and the Supreme Court held that it had jurisdiction of the appeal whether taken by the administratrix or by the opponent.

Incidentally it may be said that this same ¿ase is authority for the proposition that when it is conceded on all sides that the items appearing on the inventory do not in fact belong to the succession and form no part of its assets, they are not to be considered in determining appellate jurisdiction. But, as we have said, there is no such concession^ here.

111.

She appellee insists that we should not transfer this oaBe to the Supreme Court but should dismiss it absolutely; and for that he relies upon Vidrine vs Dupre, 136 la 880, as holding in effect' that aot 19 of 1912 (authorizing the transfer of appeals from one appellate court to another, where the appeal has been taken to the wrong oourt) contains an unconstitutional grant of power.

New Orleans La, April 8 1918

We find nothing in that case on whioh to found such a doctrine. There the Supreme Court held simply this and no more; that in a oase in whioh the .Court of Appeal had jurisdiction, and had exercised that jurisdiction by rendering final Judgment in the cause, the application for a Writ of Review under Article 101 of the Constitution must be made to the Supreme Court itself, whioh (within certain delays) had full discretion to grant or deny such writ; and that the Legislature was without power- to authorize parties to make such application to the Court of Appeal, or direct the granting thereof by such Oourt of Appeal and the hearing thereof by Supreme Court as

But this has nothing to do with a case in whloh one appellate oourt has no jurisdiction, and in whloh it purposes to exercise none because it finds that some other appellate oourt is alone vested with jurisdiction. In suoh circumstances the question of transferring from the one oourt to the other involves only the manner and time of lodging an appeal in 'the proper oourt, matters whioh (differently from a writ of review) are not regulated by the Constitution, and over whioh the Legislature has, and from time immemorial has exerolsed, the fullest and most complete control.

The fact is that the purpose and effeot of Aot 19 of 1912 is simply this; that whenever an appellate court shall refuse to entertain an appeal because it finds that Jurisdiction thereof properly belongs to some other appellate oourt the appellant shall not on that j account lose his appeal but may simply take the transcript to the proper oourt and there proceed with his appeal as though it had been I lodged from the first in the oourt where it belonged. I

It is therefore ordered that this appeal be now transferred to I the Supreme Court of Louisiana in the salte maimer as if said appeal I had originally been taken to said Court. I