author: binkelsplel, J,

text:
    No. 8008.

    Mrs. Minnie Sharp, Wife of James A. Cardinas- -versus- Cornelius R. Buchanan, Sr.
    - Court of Appeal - Parish of Orleans.
    -Dlnkclsplel. J.
   binkelsplel, J,

This quit is based on two rent notes each for the sum of ¡$150.00. for rent of premises No. 843 St. Charles Street, for the months of November and December 1919; said notes were exeou - ted by plaintiff, and under an act of lease filed in this cause together with the notes in question, it was agreed that the lessee after paying the notes should collect same from defendant who had rented the premises in question, and had bought the furniture and other things in the premises for the purposes stated in the act of sale, also filed in this proceeding.

The petition prayed for the amount of said notes and for a writ of provisional seizure in accordance with law.

The writ was duly issued and served, and part of tho property in the premises mentioned was seized by the Sheriff of the Parish of Orleans.

The defendant first prayed for oyer, and that being furnished under order of Court, subsequently filed an exception of no couse or right of aotion, which in due course was overrruled. Subsequently defendant filed his answer to the merits, admitting the execution of the notes for thea amount stated by plaintiff, and the assumption by defendant of payment, who acknowledged ps^snni posesslon of the premises without payment , for reasons, that defendant had assumed these notes ; beoause the act of A¿ril 11th. 1919, was null and void, for fraud and misrepresentation practiced upon him prior to and at the time of signing of said act, as a result of which he was laboring under error when ho executed said aot, and from the brief of defendant we quote special defences enumerated in the asmwer, as follows —*•/ 1- Plaintiff knowing defendant wanted to lease the place of not less than thirty rooms, falsely represented to defendant that the owner of the premises, 843 St. Charles Street, was about to construct a buildinjj in the rear of the lot which would contain a number of rooms, and which, added to those already there, would made the required number.

3-Plaintiff falsely represented that eight lagge and expensive mirrors in the house were her property, and would he, and were included in the sale of the property, the furniture, to the defendant.

3- Plaintiff falsely represented to defendant, that she had a right to suh-lease or transfer the property, the lease, of the entire premises to defendant.

4- Plaintiff falsely represented that she had an agreement «Utah with her land lord to lease the addition in the rear,when completed, as long as she might desire to do so, at $100.00. a month, and that she would likewise transfer this lease to defendant.

5- Plaintiff falsely represented to defendant that the lawn on the side of the house was covered by her lease, and this lawn would likewise go in the transfer of lease to defendant»

6- Plaintiff fraudulently concealed from defendant the fact that her lease contained a olause by which her land lord had retained the right to ooncel the lease upla thirty days notioe.

We are convinced that the reoonventional demand is not related to the ¡palm demand, the main demand is a suit for rent and the reoonventional demand is based on a prayer for annulment of an act of sale with reference to furniture and effects on acoount of fraud.

There is in this record, offered in evidence, a suit pending before Division, 'O’, involving the same subject matter as is involved in the reoonventional demand herein. Thel law, in our opinion,- is aumhlgaaonaxiuuuBglgaBSa unambiguous, and we refer to the authorities, Phelps vs. Stone. 3 L. 617. Pi. vs. Tidal. 5 L. 303.

A demand cannot be considered as reoonventional when both parties reside within the jurisdiction of the Court, and the two claims are disconnected, and when no judgment in reoonven-tion is prayed for. Weill vs. Bernard. 4 C. A. 63.

Where the litigants reside in the same Parish, reoOnventlon cannot be pleaded, unless ghe incidental demand is neoessarily connected with the main one. Gardner Cooperage Co, vs. Gilbert Hattier Co. 9 C. A. 18.

Where a defendant, muloted for ooate In a suit against him by a contiguous owner for Injury to the latters party wall and building, in whioh suit defendant’s building contractors were oalled in and discharged from warranty, said defendant, when subsequently sued by these contractors for work dons and completed, cannot set up in reconvertios the costs by him incurred in said former suit. Carey vs. Pratt. 1. C. A. 198. D'Armond vs. Pullen. 13. L. 138. Harris vs. Railroad Co. 16. L. 140.

For the reasons assigned, it is ordered adjudged and decreed that the judgment of the lower Court, dismissing as of non suit plaintiff olaim for judgment for rant for 5300., together with 8$ An and 10# Attorneys fees with lessors lien and prlvelege on property seized be reversed; and, it 1s now, ordered that plaintiff have judgment for the full amount of her olaim against defendant, to-wit; 5300. with 8$ interest from judioial demand, and 10# Attorneys fees, with lessors lien and prlvelege on property seized, and it is further ordered, that the judgment of non-suit on the reoonventional demand be, and the same la hereby affirmed. The oosts to be borne equally by plaintiff and defendant.

-Judgment affirmed in part and reversed in part-


source: Caselaw Access Project

license: Public Domain

text:
    COURT OF APPEAL FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
    No. 8010
    CHARLES AND SEYMOUR ROUFF, Plaintiffs and Appellees, vs UNITED SHOE MACHINERY CO., Defendant and Appellant.
   OH JOINT MOTIOH of UNITED SHOE MACHINERY CO., defendant and appellant, through, its attorneys, Narrar, Goldberg & Dufour, and Charles and Seymour Rouff, plaintiffs and appellees, through their attorneys, Milling, Godohaux, Saal & Milling; and

ON SUGGESTING to the Court that movers desire to discontinue this suit, same having been settled and compromised,

IT IS ORDERED that this suit be and the same is hereby discounted at defendant and appellant's cost.


author: Bt his Honor John St.Paul.

text:
    NO. 8019.
    JOHN B. VERGNES VS ELIAS JOHNSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

Bt his Honor John St.Paul.

This Is a suit for possession of allege! leased premises Because failure to pay the "rent" promptly. The defense Is 1. That no legal and sufficient demand for payment was ever made upon defendant, and That the alleged lease was in fact no lease at all hut an aotual sale of the -premises on the instalment plan.

On May 1st 1912 plaintiff leased the premises to the defendant fo: three years at a rental of $26 per month payable in advance, and the leasee to pay the taxes and insurance. The lessee was to have, at any time during the lease, the privilege of buying the property for *2000, subjeot to a credit for all the rent paid after deducting therefrom interest at ifo on the purohase price from the date of the lease to the date of the sale "the same as if the sale had taken place at this date"; the adjustment of interest to be# made from year to year.

How a simple oaloulation will show that if this were indeed a sale, the purchaser would have reduced his indebtedness at the end of to exactly $662.47; and at the end of nine years he would /V A have paid the whole purohase prioe less only $62.2b.

The defendant paid promptly during the first three years; for at-the expiration thereof the lease was renewed for another three years on the same terms; but the purohase price was now reduced (as it should have been) tp precisely $1486.62.

Again the defendant paid promptly during these next three years; for at the expiration thereof the "lease" was again nenewed for another three years on the same terms; hut the purchase prioe was now still further redticed (as it should have been) to precisely $853.47. This was on April 1st 1919.

After this defendant again paid promptly for a while, and sometimes even in advance. But by reason of illness he fell behind about February 1920; for the February payment was made in April and the March payment on May 31st.

On May 31st; the notes for April and May being then a due and unpaid, plaintiff served notice to vacate, and then brought these proceedings.

3#-

The writer hereof is clearly of opinion that the alleged lease herein involved evidences a sale of the property on the instalment plan; that the fact of defendant's having finally bound himself for the whole purchase price (less a mere trifle of $85 out of $2000) distinguishes this case from Doullet Vs Rush, 142 La 443, and brings it within Barber Asphalt Oo vb St Louis Cypress Co, 121 La 152; and accordingly he thinks that plaintiff is neither lessor nor owner of the property, and has no other rights therein or thereon but to recover the balance of t|ie purchase price and interest; that having ; i-*-/— already received nearly two thirds of the purchase price^he cannot both keep that anié alao take hack the property.

November 8th, 1920.

But as his eollagues think it unnecessary to oonsider that phase of the oaee he will not elaborate thereon.

II.

But we are all of opinion that no proper ana sufficient demand for payment was ever made upon defendant. The notes given by him appear perhaps to have been made payable st the premises, but even if not so made payable it was there that defendant has his domicile and there that the notes should have been presented and payment demanded; and this was not done. The faot that defendant was then away from the city makes no difference; it was there that plaintiff served his notice to vacate, there that he had the citation served, all in defendants absence; and it was there that he should have made his demand for payment, even in defendant's absence: Frederico vs Scheinkraut, #7921; Lafayette Realty Co vs Puglia, 10 Orleans App. 105; Bonnabel vs Metairie Cypress Co. 129 La 928; Dalloz, Code Nap. Art 1728, No. 273.

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

Hew Orleans La,


author: By his Honor John St. Paul.

text:
    NO. 8024.
    LUFROID LE BLANC VS GODCHAUX CO, INCORPORATED.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIHION.

By his Honor John St. Paul.

Plaintiff, a cane-grower, sold certain sugar cane to defendant, a sugar manufacturer, at a price to he fixed hy "the weekly average price of Prime Yellow Clarified Sugar as sold on the Hew Orleans sugar market during the week of delivery; said weekly average price to he established hy the Seoretary of the Douisiana Sugar and rice Exchange•"

Defendant paid on a basis of $8.30 per hundred pounds; hut p'laintiff claims the basis of settlement should have been $8.60 per hundred pounds. And the controversy grows out of a eertain"allowanee" of twenty points (equal to 20 cents per hundred pounds) made to certain "distributors." If these twenty points were allowed, and lawfully allowed, to the actual purchaser of the sugar, then plaintiff’s claim is unfounded; hut if the twenty points viere allowed to brokers for procuring sales, or were unlawfully allowed to the purchasers, then plaintiff should recover.

I.

The Secretary aforesaid certified, hy circular letter distributed generally, that the average price during the week was $8.50; but added a note a3 follows;

"Rots; To effect salea x x x an allowance from the above prices of an average of twenty points has been made this week to distributors, in accordance with section 2, dircular 11, Louisiana Sugar Committee."

The section referred to is found in the rules established by the "Louisiana Sugar Committee, of the U. S. Food Administration," and reads as follows;

"Rule 2; Any producer may secure the services of a sugar dealer or broker to sell or distribute his sugar under the rules and regulations of the Federal Food Administration, and may pay therefor any reasonable compensation not to exceed 25 cents per hundred pounds - Any broker or sugar dealer employed by the producer to dispose of his sugar shall not be permitted to divide his compensation or brokerage with, or pay any part of same, to the purchaser to whom he sells."

IX.

The authority of the Louisiana Sugar Committee is derived from a certain agreement between Herbert Hoover, United States Food Administrator, and the sugar manufacturers^) who are therein styled "the producer",; the declared purpose of said agreement being"to prevent unjust, unreasonable, unfair and wasteful commissions, profits and practices," qnd to regjrlate the sale and distribution of sugar througtt a committee styled the "Louisiana Sugar Committee," having authority to "superintend the distribution of Louisiana sugar."

III.

The agreement itself provides, in substance;

L. That the producer shall "observe, respect and be governed by, any and all orders and regulations" prescribed by said Sugar Committee.

2. That the basic price of sugar shall be that price "which is then determined by the U. S. Food Administrator x x x as the maximum price which may be charged by refiners x x."

3. That unless the Sjtgar Committee permits the sale at a lower price by reason of deterioration, or sets a lower price for any or all goods "the producer will sell direct consumption sugar x x x at not more than such price as is found to be just and fair by the U. S. Pood Administrator, hereafter called the maximum price." and the Pood Administrator thereupon agrees not to fix the price lower than a certain point, not material to the issue herein.

4. That the producer agrees that the Sugar Committee may fix a price not greater than the maximum price by the D. S. Pood Administrator, and thereafter the producer will sell his sugar "at the price named, until changed."

5. The other provisions of the contract have no hearing on this controversy.

IV,

In thia agreement (of which the foregoing la aa fair an analysis aa we know how to make) we aae nothing hut a simple agreement that the Rood Administrator, in order to prevent "unjust, unreasonable, unfair and wasteful commissions, profits and practices," might fix a maximum price for sugar; at which price, as a maximum, the producer agreed to sell; unless the maximum he lowered, whereupon the producer agreed to accept such lower price, also as a maximum.

But we see nothing therein which forbids the producer to sell for a price below the maximum. The manifest purpose of the oontract was to prevent profiteering in sugar; there is no indication that its purpose was to uphold the price.

Hence we conclude that there was nothing in this oontaatt which made it unlawful for a producer to sell for a price below the maximum (At that time fixed by the Committee at 8.50).

V.

As to the certificate of the Secretary of the Exchange, the defendant claims that it plainly shows that the "twenty points allowed from the price" to distributors, went to the purchaser, or jobber, called a distributor; and moreover adduoed proof that auoh was the actual faot.

On the other hand plaintiff claims that the certificate olearly shows that the "twenty points allowed the distributor," went to the broker employed by the seller "to sell or distribute his sugur"; and hence objected to any evidence tending to show that the facts were otherwise.

The trial judge thought also that the certificate needed no explanation, and hence excluded oral evidence as to the faots. But he aooepted defendant's understanding thereof, rendering judgment accordingly; and my oollegue Judge Dinkelspiel (Judge Claiborne being absent) agrees wholly with the District Judge.

Por myself I think that if I must interpret the certificate without recourse to oral testimony as to the ## actual faots, then I cannot but agree that the interpretatim ‘given it by the trial judge and by my collegue is most likely oorrect. Por X know generally that wholesalers or jobbers, purchasing an artiole directly f-om the manufacturer for resale, are known in commercial circles as "distributors" of that artiole; but if brokers are ever so termed, X do not know it. Again a broker's compensation is usually called a commission or brokerage, and is not generally spoken of as "points allowed", which points, in the language of the exchanges, mean simply differences in pries, measured in certain established units. And finally. if the pointcallowed had been merely commissions paid, they would not have been mentioned in a circular intended only to show prices.

But I inoline much to the view that testimony might have been admitted to show the actual facts, and such testimony, being injr the record, does show that the twenty points "allowed from the price", went to the purchasers of sugar, and not to the brokers; whose commissions were paid to them directly by the sellers and cut no figure whatever in fixing the price.

Inoidently, it may be observed that the contract between plaintiff and defendant does not require that the average weekly price shall be established by the Secretary Hi WRITIiJG; and hence it is not strictly correct ■to say that oral evidence as to the price (his own, for instando) was not admissible under the contract.

Of course just why the Secretary worded hi-; certificate as he did, and Just why sugar was sold for a certain price less so many points, instead of for a fixed flat price, may oontlnue matter for conjecture; but this does not alter the one main fact, that defendant paid plaintiff on the basis of prices actually and lawfully then prevailing on the exchange.

May 2nd, 1921.

The judgment appealed from seems to us oorrect, and accordingly;

Judgment Affirmed.

Rev/ Orleans, la,


author: Dinkelsnlel. J.

text:
    Succession of Georgiana Bourgeois.
    No. 8027.
    -Court of Appeal-Parish of Orleans.
    Dlnkelsplel. J.
   Dinkelsnlel. J.

The opposition in this succession to the provisional account filed by the administrator of the Succession, is on a claim of Mrs. Tinnie Knight, who claims that she is a creditor of the said succession in the full sum of $350. with legal interest for hoard and lodging and from the 10th. of January, 1918 until paid,/for services rendered during the illness of deceased until the date of her death which opponent estimates conservatively at $350., and «that she has not been placed on said account for the amount of her claim.

The answer is a general denial, and further, that when a demand was made by opponent she claimed a note of $405. dated 35th. April, 1915, signed by Henry Bergeron to the order of Mrs. Georgiana Bourgeois, held by her the said opponent, and claimed to have been transferred to her by the deceased for the services whioh she now sets up in her opposition, and respondent further shows, that opponent cannot claim the note whioh she has kept and also payment for services set up in her opposition, and therefore prays that the claim be dismissed and for judgment in favor of the succession.

The trial Judge saw and heard the opponent, and made the oppos -itlon absolute in these words

" Mrs. Tinnie Knight placed on the final account of the administrator of the Succession of Mrs. Georgiana Eourgeois for the sum of $350. which she olairas for board, lodging and servioes rendered during the nines of deceased and previous to her death. 'The answer claims that the opponent holds a note for the sum of $435., dated 35th. April, 1915, signed by Mr. Henry Bergeron to the order of Mrs. Georgiana Bourgeois, and held by Mrs. Deris, claiming that the said note was transferred to her by Mrs. Bourgeois for the full services which she now sets up in her opposition, and for whioh she claims the sum of §350.
* There is no proof to off set her olaim in any way shape or form. The only question involved is whether or not she holds the note for $435 which was given her in settlement for the very services fpr which she now claims the sum of $350.
" My opinion is, that the testimony given by the opponent herself, that the note was held, by her, from her testimony she does r.ott claim title to the note. The question, whether or not the, the Rote belongs to her will be properly settled in a seperate proceeding, and for that reason, the law and the evidence being in favor of the opponent and against the administrator."

Kis Honor saw and heard the witness in this case; there was no testimony contrary to hers, and he decided the o-a case correctly, in our opinion.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be, and is hereby affirmed, with costs of bo1;h Court against the succession.

-Judgment Affirmed-


text:
    NO. 8030
    W. W. WITTSCHEN VS GEORGE ZIMMER.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   ORI HI OH*

By his Honor John St. Paul.

This is a controversy ovar the ownership of an automobile, and involves only a question of fact.

Defendant had a second hand automobile for which ha had paid $315; and he ran it into a canal, where it lay for one week. During that time it was stripped of four ■ new tires; by a person who was honest enough to restore them to defendant, who afterwards sold them.

Plaintiff, who is an automobile mechanio, was sent for to get it out, and did so; taking it to his place of business, where it stood on blocks for some days, practioally a=woak.

According to plaintiff's testimony, and the testimony of one other witness, plaintiff offerred to purchase it as it stood for $50, which defendant accepted; and $25 was then and there paid on account, the balance to be paid when demanded. Another witness came up as the $25 was paid; and though he did not hear the bargain made, he was informed of it a moment afterwards. And plaintiff then repaired and renovated it, at a cost of $200 or more in material and labor.

Defendant testified that he left the automobile with plaintiff to be sold as it stood for $000 if possible, but not tíéé for less than $200 in any case; that ha forbade any repairs to be made thereon at his (defendant's) expense; and permitted suoh repairs as were made, only on plaintiffs assurance that he would lose nothing by it.

May 16th, 192L.

The trial judge believed the plaintiff and his witnesses. He did not believe the defendant. Moreover, the fact that defendant sold the new tires seperately instead of having them put back on the automobile, and did not even send back the four old tires which he still had at home, indioate presuasively that in his opinion the automobile had reached that state where it was simply junk and not saleable except as such; so that it is simply incredible that he expected to get $300 or even $200 for it.

Thus the record presents a clear preponderance of evidence in favor of plaintiff, corroborated by the circumstances, and by the finding of the trial judge. And accordingly,

The judgment appealed from is therefore affirmed.

Hew Orleans ña,


text:
    No 8040
    Court of Appeal Parish of Orleans
    New Orleans Association of Commerce vs Edward W. Pierson, doing business as 4000 Tire Service Company
   On Motion to dismiss Appeals.

Article XI33 of our Code of Praotloe provides that: "no appeal shall be allowed from any judgment renderred by a justloe of the peace in the parish of Orleans,after the expiration of ten judloial days from the signing of the judgment and its notification to the party oast." and this reoordxshB±*gx showing that defendent and appellant had allowed more than ten days to elapse beforefi filing his motion of appeal,it is inoumbent upon this Court to dismiss both the Suspensive and Devolutive Appeals filed herein.

It is therefore orderred adjudged and decredd that the Suspensive and Devolutive Appeals taken by Edward W.Plerson, dping business as the 4000 Tire servios company,defendent and appellant herein be dismissed,at his costs.


author: CHAr’I'?S F. CUIBOR'J'S, JUDOE.

text:
    Charles F. Claiborne, Judge.
    MRS. H. M. STAUFFER & al vs MRS. C. E. HARTZ, Appellant.
    No. 8043
    December 6th, 1920.
   Mrs. K. L. Stauffer & al vs Mrs. S. E. Hartz, Appellant.

Ho. 8043

Appeal from Civil District Court, Hon. 3. K. Skinner, Jutee.

CHAr’I'?S F. CUIBOR'J'S, JUDOE.

Thi3 is an ejectment suit.

Petitioners aver that their iiiother, Mrs.Maury, leased to defendant, 7/idow C. E. Hartz,the preraises Ho.1312 First Street for a terra of twelve months, commencing on October 1st, 1919 and ending on September 30th, 1920; that their mother died July 6th, 1920 leaving petitioners as her only heirs; that they gave to Mrs. Hartz legal notice to vacfete said premises at the expiration of her lease, which she has failed to do; they pray for judgment condemning the said Mrs. Hartz to vacate said premises and to deliver possession of the same to them.

For answer, defendant admitted the lease and the notice to vacate; she averred that she„did not vacate in accordance with said notice because she has a valid lease to September 30th, 1921, and that she is entitled to remain in said premises up to that date; she further averred that

"on or about August 12th, 1919, she rented the premises 1312 First Street from October 1st, 1919 to September 30th, 1920, through Leo Fellman, agent of lirs. J.H.Iiaury, for $85 a month; that about July 7th, 1920 she received notice from said Fellman that the rent for a new lease had been fixed at $100 a month, said Fellman, agent, at the same time, requesting her to remain as tenant; that she accepted the terms proposed to her, and on or about July 8th, 1920 signed leases in duplicate, renting said property from October 1st, 1920 to September 30th, 1921; that she signed and executed rent notes in accordance with said leases, all as prepared by said Fellman, so acting as requested ; that this was done at the office of said Fellman, and said leases and notes were delivered to him and received by him as agent, it being agreed that he would promptly sign said leases and deliver one to defendant; that, thereupon, the agreement and contract between said Fell-man, agent, and this defendant was and became closed, and defendant left the office of said Fellman; that after defendant had signed said leases and notes and the same had been left with and accented by said Fellman, as agent, the latter was notified that said Mrs. J. H. Maury had departed this life and that the property in question was not to be leased; that said Fellman notified this defendant of said facts, but retained said leases and all of said rent notes which had been signed by this defendant; that in all said matters both said Fellman, as agent, and this defendant acted and were in good faith; that said contract of lease is and'was a valid contract and is binding upon the succession and heirs of said Mrs. E. H. Maury; that defendant files herewith, as part of this answer and return, a copy of said lease, marked "A B", and that defendant is entitled, under the law and under said lease, to hold and retain said premises, as tenant, until September 30th, 1921, subject to the terms and conditions thereof. "

Defendant also denied that plaintiffs were entitled to proceed' by summary process, and she prayed for judgment in her favor.

There was judgment for plaintiff, and defendant has appealed.

There is no dispute as to the facts; the only question is, do they establish a fenewal of the lease after September 30th, 1920Í

The documentary evidence establishes a .-lease to defendant by Leo Fellman, agent for Mrs. J. H. Maury, signed by Mrs. Helen D. Maury, ending September 30th, 1920; a notice to vacate addressed to Mrs.C. E. Harts, dated September 18th, 1920, and delivered September 20th, 1920.

The defendant offered in evidence a letter dated July 6th, 1920 signed Leo Fellman by Louis P. Eaves, addressed to lira. 0. E. Hartz, reminding her that her lease would expire on the last day of September, and that their client had fixed the rental at $100 per month under a new lease; expressing the hop9 that she would remain, and requesting an immediate answer.

Second; A lease dated July 8th, 1920 by Leo Reliman, agent for Mrs. J. H. Maury, to Mrs.Widow C. E. Hartz for the premises 1312 First Street for twelve months commencing October 1st, 1920 and ending September 30th, 1921 at $100 per month signed by Mrs.C. E. Hartz.

Third: A letter dated July 8th, 1920 addressed to Leo Fellmaaih the following words:

"Owing to the death of Mrs. James J. Maury, owner of the property Ho. 1312 First Street, rented through her daughters, Mrs. Randolph Lj^ons and Mrs. I. H. Stauffer, have decided not to renew the lease of this property, I, therefore, wish to notify you that they will withdraw this property from your hands for rental and sale temporarily. Kindly consider this as a formal notice of withdrawal.
Yours truly,
"Signed" I. H. Stauffer "

A fourth letter dated July 9th, 1920 addressed to Ur. I. H. Stauffer as follows:

"We hasten to acknowledge receipt of your favor of the 8th inst., and to say that a few days ago, pursuant to instructions received from Mrs. Randolph Lyons, We agreed to renew lease of the premises Ko. 1312 First Street at the additional rental of $100.00 per month, ccordingly leases were drawn by this office and have been signed by the tenant".
Yours very truly,
"Signed" Leo Fellman
by L. P. Eaves "

Mrs. Hartz testified that she had been occupying the premises 1312 since October 1918,' she leased them from Kr. Fellman through Mr. Eaves; she did not deal with Mrs. Maury; she dealth always with Mr. Eaves; on receipt of the letter of July 6th, she called on Mr. Eaves on July 8th. and signed two leases and twelve notes;, the next day she was notified by phone by Mr. Eellman that he had bad news and that he did not think he could close and send her the lease; this was the third lease Eaves had signed for her, for that property.

Louis P. Eaves ttestified that he was connected with Leo Eellman; he made the lease to Mrs. Hartz in 1919; he wrote the letter dated July 6th, 1920; in answer to the lbtter Mrs. Hartz phoned to him that she would call the next day; she called and signed the lease and the twelve notes; he did not sijpi the lease on account of the letter of I. H. Stauffer, husband of one of the plaintiffs, dated July 8th; but he answered the letter on receipt of it on July 9th; he had been notified by Mrs. Randolph Lyons to rent the property at $100 a month; Mrs. Lyons had not been acting for her mother prior to that.; he did not have written authority from Mrs. Maury or from either of the plaintiffs to sign a lease for them; he never signs a leas; without such authority; the usual form of authorization he requires is'.in these words printed at the top of the lease:

"I hereby authorize and empower my agent, Leo Eellman, with full power of substitution to enter into and sign, or if already signed, hereby ratify and confirm, lease reading as follows, bearing on property described herein, which property I own";

then follows, on the same page, the lease made by b@o Eellman; no such authority was given him to make the lease in suit to Mrs. Hartz from 1920 to 1921; at the tine he wrote the letter of July 6th, 'it was contemolated by him that a lease should be signed by Mrs. Maury.

At this moment Mrs. Hartz is recalled as a witness and she swears that Mr. Eaves did not tell her that he contemplated having the lease signed by Mrs. Maury.

Louis P. Eaves reealled continues: Mrs,Lyons‘phoned to him about July 1st, stating that her mother was quite ill; that they just returned from Mobile; and that she wanted to talk to him about the new lease for 1312 First Street; he advised, a new lease at $100 a month; she said 'she thought $100 fair, and that he

"shoíild clase the lease with the tenant for another year, that is all;"

he has had charge of the orooerty for the oast five or six years and has gone through the same procedure each year, pre-oaring the lease, and having the notes signed, and sending out the lease authorization and have it signed and conolete the lease; he does not sign any lease without a written authorization; he never received any written authorization in this case.

Mrs. Lyons testified that her mother, l,Irs. Maury, died July 6th, 1920; for about six months prior to her death she had been out of her mind; she had no authority to act for her mother; she nhoned to Mr. Eaves to find out if Mrs. Hartz was willing to pay $100 rental instead of $85; Mr.Eaves had a different impression of that conversation than she has; her idea was simply for him to find out if Mrs. Hartz would pay $100; she did not intend that a lease should be drawn up as she had no authority to lease, and her mother was not in a mental condition to do so; Mrs. Hartz paid her notes for the 1919 - 1920 lease in the '.Vhitney Bank, and the Bank turned the money over to them; Mr. Stauffer wrote that letter after full consultation with all of them, including her sister, Mrs. Stauffer.

Br. Randolph Lyons says that Mrs. Maury has been mentally ill since January 1920, and not in a condition to transact business; during that time her family had to manage her affairs and attend to her business.

I. H. Stauffer testified that the daughters of Mrs. Maury withdrew the tent money from the 'Vhitney Bank, and he sent it to Mobile to defray the exonnses of Mrs. Maury.

In denial of defendant's claim to a lease plaintiff gives two reasons: lo That Heilman was not authorized to make a lease, and 2o that inasmuch as it was contemolated that there should be a written lease there was no contract until the lease was written and signed by both oarties.

lo The evidence satisfies us that Heilman had authority to make the lease. He was a real estate agent; his business was that of renting property; the property had been nut in his charge for rent for several years; he had,leased it to the defendant the year previous; he was clothed, with aunarent authority to lease the property:

C. C. 3000(2969):

"Powe s granted to persons who exercise a nrofession, or fulfill certain functions, of doing any business in the ordinary course of affairs to which t.h»y are devoted, need not be specified,' but are inferred froi.: the functions which these mandatories exercise".
"The orineipal is bound by all the acts of his ageit within the scope of the authority which he hald him out to the world to possess". Henderson vs RRd., 3 Ct.App.,43.
"Where an owner has entrusted his oroperty to a general agent as a factor or consignee in the habit of selling such prooerty, he Í3 estoooed from claiming the oro-perty in the hands of ah innocent ourchnser". Moore vs Lambath, 5 A., 66.

See also 13 A., 453; 21 C.J.,1172, 1176.

But we think the testimony of Haves establishes that he was authorized to lease this property by Krs. Lyons, and that Mrs. Lyons acted with the knowledge of Hrs. Stauffer. A lease •need not be in writing.

C.C., 2683 (2653):

Leases may be made wither by written or verbal contract". The authority to make leases may therefore be verbal as well as written. Nor is it necessary to be an owner of orooerty to lease it. Any one in possession of property may assume the obligations of lessor by leasing property. C. C.,2681 (2651); C.C., 2682 (2652); 8 R., 211; 5 A., 36. The. olaintiffs, whfcther owners or not, having authorized the lease of the oronerty, cannot repudiate their action. Any title acruired by a vendor inures to the benefit of his vendee; so of a lessor.

The letter of I.H.Stauffer is an affin.iance of Fellman's authority to lease. It was written after consultation with all the owners, and with their knowledge and approval. He notifies 1’ellman th"t he withdraws the nrooerty from hifkhapds for rental because they have decided not to renew the lease. '.Te,therefore, conclude that Heilman was authorized to lease t; is property and that he did lease it, unless the si,'mature of himself or of the owners wa3 necessary to complete the contract.

2o In the early history of our Courts the jurisprudence was that a contract which was to be redueed to writing wa3 not complete until written and signed. 1 N.S., 420; 4 La., 80; 2 H. D., 1001; 2 L.D., 470; No.4; 28 A., 31; 30 A., 119; 115 La. , 810; 142 La., 569; 12 Ct.App., 366; 13 Corpus Juris 370 & 249; 116 La., 337.

But later cases have modified the stringency of the rule, and in them, the determinative question arose, was the verbal contract comolete before writing and signing? 24 A.,433.

If it was, the verbal contract was binding without the writing. 30 A., 50 quoting Zacharic 2 to 466 note; 30 A., 117; Carlin vs Harding, 10 La., 225; 52 A., 424; 116 La.,338.

If it was not, then there was no contract until the minds of the parties met in a writing signed by both. 28 A., 33; 30 A., 321; 2 Tropling Louage No.106; 1 Duvergier No.167; 45 A., 530; 52 A., 424; 106 La., 309; 51 A., 1729.

In the Woodville case, 115 La., 810, the Court said on p 814s

"the point is that something wore is to be done before the contemplated contract is to be considered completed".

After a careful examination of the authorities, this Court in De Soto Building Co. vs Kohnstarn No. 7627 wrote this syllabus:

"A verbal agreement between t>artie3 where their minds have met upon all essential details constitutes a contract between their; and binds them at once, although they may have agreed that they would thereafter execute a formal instrument containing the terms of their present agreement unless it appears that it was"the will of the parties that they should be bound only if and when the formal instrument was executed".

This opinion was in line with Laroussini vs Werlein, 52 A., 424, end other cases cited above.

In the De Soto Building case only the temp of the lease had been agreed on; but no lease had bee^sianed. In the case under consideration, the lease had been simed by th^, defendant (!W-/ 2-sfl*rÓ¿¡- ,* - - upon a blank form supplied by Leo Fellnan^.It contained all *A save the signature of the lessor. The contract was not de-pendant upon that for its comoletion, and constituted therefore a perfect lease without the written and signed lease.

The judgment is therefore reversed and it is now ordered that there be judgment in favor of defendant rejecting plaintiff's demand at their cost.

Judgment r§versed.

December 6th, 1920.


author: DIHKBLSPIEL. J

text:
    LINDEN E. DOMINIQUE. -VS- EDWARD J. CONNELL.
    NO. 8051.
    COURT OF APPEAL. PARISH OF ORLEANS.
    PinkelBpiel. J.
   DIHKBLSPIEL. J

This suit is tasad, on a lease whioh was entered into tetween plaintiff's deceased father and defendant on July 31st. 1919. for a period of 34 months, at $55.00., per month, beglning October, 1st. 1919, and ending September, 19th. 1931.

There was a stipulation in said lease that no part of the leased premises should be used for oooking purposes, except the kitohen. that the tenant has sub-leased part of the property, and had also allowed oooking to be done in other rooms than the kitchen.

On the trial of the case evidenoe was introduced to the effeot that oooking had been done in other rooms than the kitohen, but there was no evidenoe showing any sub-leasing, therefore, the only issue before the lower Court was as to the merits of the oasp whether there was any violation of the written lease as to allow oooking in other rooms than the kitohen.

During the trial of the case oral evidenoe was attempted to be introduced hpsaiMBfc«M«WHae¡ attempting to prove, that the written notice had been waived and that plaintiff consented verbally to a modification of the lease, to the effeot, that oooking oould be done in other parts of the premises in question. This was denied by the lower Court for the reasons stated, by his Honor, the Judge of said Court, to the effect:- "The objection to the testimony is sustained. The object of that question is to prove by the original lessor verbal permission for the violation alleged in the rule and admitted in the answer. The reason for the requirement of the lease that the things therein indicated shall not be done unless written consent be first obtained is clearly for the specifio purpose oí avoiding contentions as to vernal permission, as the rule oí law whioh requites titles to seal estate to be in writing, or the permission to sell a píeos oí real estate to be in writing. Contraots legally entered into have, as between the parties, all the loros and eifeot of law. This oontraot between Dominique and his tenant and between the tenant and Dominique and his suooessors, has all the loroe and effeot of the legislative aot, and where the oontraot whioh is the law between the parties, states that those things shall not be done unless consent thereto be given in writing, it prevents the Court from hearing verbal testimony. I have no more right in this oase, to permit parole testimony than 1 would have to hear it in a oase Involving title to real estate, to permit parole testimony to be offered to prove title."

We are satisfied that the learned Judge erred in his ruling, and the law of this oase has not been oorriotly stated by him.

" A written oontraot made in the absenoe of statutory provisions requiring a writing oan be modified by a subsequent oral agreement"

" The requirements of a written oonsent of the leesor is for his proteotlon alone; he might gibe aoquiesoe the lessee verbal oonsent or merely aeqwiv in the sub-letting of the premises." Trichell vs. Donovan. 138. L. 988.

* A stipulation against sub-leasing is for the exclusive benefit of the lessor and no one else oan enforce it." Montecon vs. Faures. 3. L. 43.

"It has uniformly been held that the mere aoquiescenae ’of the lessor will suffioe althouh the lease requires his written oonsent." Baudry—Lacantinerle. Louage. Wo. 1117. ( vol. 18. p. 589). And sinos a mars implied consent suffioes, it follows that express consent, orally given, suffices even more. 138 L. 988; 35 Laurent 426, sec. 219. 30 Dalloz Rep. 406 sec. 475; Dalloz Code Annote, Art. 1717, So. 190; 13 Corp. Jur. 593-594, Secs. 609-611. 51 N. Y. Sup. 1; 70 N. Y. Sup. 211; 99 Atlantic 622; 169 Pacific 201.

For the reasons herein assigned, it is ordered, adjudged and decreed that this cause be remanded, the judgment appealed from be revered, and the case to be proceeded with in the lower Oourt in aooor-danoe with the views herein expressed and aooording to law. Plaintiff and appellee to pay the costs of this appeal and all other oosts to await final judgment herein.

Judgment Reversed-Case Remanded-


text:
    NO. 8055.
    RICHARD TUSSON VS CHAS D. YOUNG, TAX COLLECTOR.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIlilOIÍ.

By his Honor John St. Paul.

Plaintiff seeks hy mandamus to compel defendant to execute and deliver to hi'! a deed to certain property which

plaintiff bought (and paid for) at a tax sale made hy defendant.

The defendant pleads that plaintiff is without interest in tho suit, having purchased theproperty for another who was his undisclosed principal; such principal being again merely the representative of still another, who for some reason, oould not acquire a valid title through said tax sale.

Plaintiff objected to any testimony along the line of such defense; and we think the objection should have been sustained.

I.

It is clear that he in whose name stands the written title to real estate, is to all intents and purposes the oener thereof; and parol evidence is not admissible to the contrary. Stierle Vs Kaiser, 45 An 580; Hackenburg vs Gartskamp, 30 An 898; Perrault vs Perrault, 32 An 635.

II.

Acoordittg to Section 60 of Aot 170 of 1898, the tax collector "shall execute and sign in person or by deputy X Z X a deed of sale to the purchaser of any real estaté sold for taxes." And that duty is a purpijr ministerial one. Ciles Vs Veith, 14 Orleans Appeals 223.

It is sala however, quoting from 37 Cyc 1423, "But if •the purchaser was disqualified from bidding at the tax sale, or as where he was under a legal^moral obligation to pay the taxes, or stood in such relation to the owner of the property that it would be a fraud for him to acquire the tax title, he is not entitled to a deed and will not be assisted to procure it."

lie have examined the authorities on which the text purports to be based, and in our opinion they do not support thetext. They hold no more than this; that where a tax deed has bean issued to such a purchaser, the tax debtor may set up the invalidity of the deed when opposed to him. Indeed Mills vs Tukey, 22 Cal 873, holds rather to the contrary, to wit, that the deed must first be given effect, and the tax debtor must attack it by direct action.

The only one of those oases at all in point is State ex rel Roe vs Williston, Clerk, 20 Wis 228, which was a case in which the purchaser at tax sale sought to mandamus the tax collector to execute a deed. The mandamus was denied because it appeared that in addition to the utter nullity of the very tax sale itself, the tax debtor had in the meanwhile actually redeemed the property; and the court held that it would not do the vain and useless act of ordering a title made out which it would have to set asidd at once.

III.

But the real defense in this case, and the only one in which the tax collector has any interest whatever, involves the question how much is he entitled to charge •plaintiff for the tax deed?

Plaintiff asked for a Jfotarial deed, to he passed before a notary of plaintiff's own choosing. The tax collector insisted on naming the Rotary. Then plaintiff demanded a tar collectors deed (prooess verbal, 0. 0? 2254), for which defendant asked ,j>6 (or #5) ns was customary, but which plaintiff declined to pay as not authorized by law.

The only law on the subject seems to be Section 58 of Act 170 of 1898, amendec. by Act 515 of 1910, reading as follows; "XX Por seizures, sales and tax deeds, made by a Tax Collector or Sheriff, he may be allowed the sdme costs which'are allowed by law to Sheriffs for seizures, sales and sheriff's deeds in judicial proceedings."

And Seotion 1 of Act 205 of 1898, fixing a Sheriff's fees as follows " x x x Por making an actual seizure and sale of property under execution x x x and making sale, return and proces-verbal, One dollar and fifty cents, $1.50".

Act 82 of 3884 has no application.

The trial judge could find no other law on the subject; nor can we. He fixed the defendants fee at .#1.50, which seems to us correct.

The judgment appealed from is theferore Affirmed.


text:
    NO. 8056.
    NEW ORLEANS & NORTH EASTERN R. R. CO VS JONATHAN K. LEWIS.
    COURT OF APPEAL STATE OF LOUISIANA PARISH OF ORLEANS
   OPIJÍIOIÍ.

By his Honor John St. Paul.

Plaintiff Brought this suit Upon a causa of action arising in the yeae 1917, as shown hy the exhibits annexed to and made part of the petition; that is to say before the Federal Government had assumed control of the nation’s railroads as a war measure.

Phis petition however was filed only in 1919 and whilst plaintiff's physical property was in the control of the Federal Authorities, where it had been since Deo. 31st 1917; and contained some irrelevant allegations about Federal Control, as we11 as certain clerical errors showing dates in 1918. By reason whereof, it would seem that court and counsel must $### all have been misled into the belief that the cause of action arose during Federal control. For the defendant promptly filed and the judge promptly sustained an exception that the cause of action belonged not to plaintiff but to the Federal Director General of Rail Roads; whilst the latter, acting by the same oounsel, promptly filed a new-suit upon the same cause of action. Thereafter plaintiff perceived the mistake and took this appeal.

I.

It is said that oounsel for plaintiff admitted below in open court that the judgment was correct fas well and hence plaintiff cannot appeal. But this court cannot tate oognizance of alleged occurrences in the oourt Below which do not appear in the record, By which alone an appellate court is guided. 0. P. 601; 894. What is not in the record we cannot consider. De non apparentlBus et non exlstentlBus eadem est ratio.

Moreover mere verbal approval of a judgment, unless followed By "voluntary execution" ( i.e. some affirmative action) is not suoh acquiescence therein as to preclude a right of appeal. C. P. 567. Dor can a mere verbal approval of a judgment after rendition amount to a ### confession of judgment, which of course should Be in writing, and generally should precede the judgment and be the Basis thereof.

Again it is clearly no part of counsel's duty to approve or disapprove of judgments for or against a client; and hence any admission By counsel that a judgment is correct is only an individual expression of opinion which does not Bind the client or preclude Jiis right of appeal. Nor can counsel directly or indirectly waive a client's right of appeal unless specially authorized to do so. See Smith vs DurBridge, 28 Da Ann, not reported; cited in Douque’s Digest p. 69. And finally the right of appeal is absoluta on complying with, the requisites of law and does not aepena on the inoorreotness of the ¿Judgment nor on the opinion entertained thereof hy the court or counsel. Security Bank vs Hibernia Bank, 13 Orleans Appeals 423; State vs Recorder, 45 An 1209; Lee vs Foley, 113 La 663.

May 30th, 1921.

Hor can the fact that the Director General thereafter filed suit on the same cause of action, even by the same counsel, amount to a voluntary execution of the judgment by plaintiff. Ihat was wholly the act of a third person and not the aot of plaintiff, and cannot prejudice plaintiff. Res inter alios acta alteri nocere non debet.

XI.

As to the main issue, there is no pretense now that the judgment appealed from is correct; and hence that judgment must be reversed and the oase remanded for trial; but we think that the error in the judgment below was due to the fault of plaintiff, and So we will tax plaintiff with the oosts of this appeal. Act 229 of 1910.

Ihe judgment appealed from is therefore reversed and it is now ordered that defendant's exceptions be overruled and the aase remanded to the court a qua for tbial in due course; plaintiff to pay the oosts of this appeal, and all# other costs to await final Judgment.

Hew Orleans la,


author: CHARI3S F. CLAIB0HH3', JUDG3.

text:
    Charles 5*. Claiborne, Judge.
    State ex Rel John Segreto vs Judge Civil District Court, Div. "D".
    No. 8058
    December 20th, 1920.
   State ex rel John Segreto vs Judge Civil District Court, Div. "D"

No. 8053.

CHARI3S F. CLAIB0HH3', JUDG3.

This is an application for a Mandamus to couuand the Judge of the District Court to revoke ar. ^-der setting aside h default and to proceed with the trial of the case.

‘ On March 2d, 1920, the plaintiff brought suit against oseph Gaeta in the Civil District Court under No. 130,678; he alleged that he had leased to the defendant the premises Fo. 1936 Poydras Street at $50 a month; that the defendant owed him $150 for the months ending respectively on the 15th of each of the months of December 1919 and January and February, 1920 and that he would owe him $100 for rent to become due on March 15 and April 15, 1920, or $250 in all; that he had the lessor's lien and privilege on the property contained in the leased premises, and that he had good reason to fear that the defendant lessee would remove the property contained in the said premises. He prslyed for a provisional seizure, for citation on defendant, and for judgment against him for $250 with recognition of his lessor's lien and privilege, upon the property contained in the leased premises, and for the sale of said property and for payment of his claim out of the proceeds.

The order for provisional seizure was signed on March 2d, 1920.

In execution of said writ, the Sheriff seized and took possession of a stock of groceries and an automobile truck.

On March 3rd, the day after the filing of the suit, by-motion, the plaintiff represented to the Court

"that the property herein seized by the Civil Sheriff for the Parish of Orleans is perishable in its nature, consisting of a stock of groceries etc., and it will be to the intere.st and advantage of all parties if same is sold without delay, which will 3ave cost and expenses incidental to keeping same. It is ordered by the Court that the Civil Sheriff for the Parish of Orleans be and he is hereby directed to sell for cash the property seized herein and after advertising same twice within three dayst that a sale be made on the premises where the property now is, without appraisement".

In accordance with said order the contents of the leased premises were sold by the Sheriff op Ma&h 6th. for $366.25.

On March 11th, 1920, a petition for involuntary bankruptcy was filed against Joseph Gaeta, and on the same day A. Ji. Pilsburg was appointed Receiver.

On March 12th, the Sheriff returned that he had not been able to serve Gaeta with a citation, and that he had been informed that Gaeta had left the State.

On March 18th, the Receiver took a rule on Segretto, the plaintiff, to show cause why the Sheriff should not pay to him all the proceeds of sale in excess of the claim of said Segretto for the purpose of being administered by him.

On March 20th, service of citation was accepted by "George J. Gulotta, Atty. for Jos. Saeta".

On March 31st, Pilsburg, Receiver, filed what he termed an "intervention and answer" in which he denied all the allegations of plaintiff's petition herein; further answering he averred that on March 19th, the plaintiff took possession of said premises; and he prayed that plaintiff's demand for rent beyond March 19th be denied.

On April 26th, the plaintiff filed a supplemental petition op which he averred that the defendant had abandoned the leased premises; that he had left them in a filthy condition with locks and glasses broken and other damage and he claimed $25.70 for hardware and labor, and $6110 for paint and painters.

On May 11th, the plaintiff took a default against the defendant. This is the subject of controversy here.

On May 12th, Pilsburg, Receiver, filed what he again termed "an intervention and answer" to the above supplemental petition in which he denied all the allegations therein contained, and he prayed for judgment rejecting the demand.

On May 13th, the Recteiver took a rule against Segretto in which he alleged that notwithstanding the intervention and answer which he had previously filed on March 31st, the plaintiff had, on May 11th, taken a default against Gaeta.the defendant; that said default was illegal, and he prayed that the default he set aside and that the case be put upon the call docket to be regularly fixed and tried upon plaintiff's petition and the answer filed thereto by movér^rule.

The rule was made absolute on June 18th, 1920.

On June 15th the Receiver, under authority and direction of the Bankruptcy Court, filed an additional answer to both the original and supplemental petitions.

Of the action of the District Court setting aside the default and ordering the case to be called and fixed, the plaintiff complains to this Court and prays for Certiorari aid. Mandamus commanding the Judge of the District Court to revoke his order setting aside the default and commanding him to proceed with the case and permit delator to confirm the preliminary default by him taken against the defendant. His allegations are;

lo That no intervention was ever served upon him and no citation prayed for;

2o That there is no such thing in law or in ¡ 'Code of Practice, or in the Practice of the Courts which permits the filing of an intervening answers

3o That the Receiver cannot champion the rights of defendant, and if any creditor of Gaeta has any claims he must assert them against the property seized by intervention as provided by the Code of Practice, and that the Receiver must proceed in the same manner;

4o That the Receiver cannot interfere in a seizure made prior to his appointment arising from a privilege inherent to the nature of the claim itself, and that he can only claim the surplus after paying the plaintiff.

The Judge of the District Court exce.pted ón the grotind that relator had a remedy by appeal and that therefore he was not entitled to Mandamus and Certiorari; that under the law and / jurisprudence regulating the practice in matters of bankruptcy, Receivers were entitled to appear and defend suits against the bankrupt; that the appearance made by the Receiver, though styled an "intervention and answer" was in reality an answer; that the Receiver was not attempting to interfere with the jurisdiction of the State Court; that he was only calling on the plaintiff to make proof of his claim; that the answer of the Receiver legally prevented a default, and that the case must be regularly fixed and tried.

The numerous authorities quoted by respondent apply to cases where the writ of Certiorari was asked to issue in cases where the validity of the proceedings was attacked, and the inferior Court was asked to desist from further proceedings. i Such is the object of the writ of Certiorari.

C. P. 856:

"This mandate concludes by enjoining upon the inferior judge to proceed no further in the case -until .judgment shall be pronounced on the regularity of his proceedings".

The authorities quoted by respondent would have been . applicable ¿^notwithstanding the Receiver's answer, the Court had entertained an application of the plaintiff'to confirm his default. Then the defendant could have applied for,a. rtiorari.

.^^d^njihe^naiant case ,the relief prayed fcr "'y relator is^to command the trial court to permit him to confirm his default, and incidently only to Revoke the order setting aside the default; in other v/ords to cornoel the Judge to do his duty, O.P. 837:

"It (Mandamus) may bo directed more particularly to judges of inferior courts, commanding them to render justice and to perform the. other duties of their office conformally to law". -

If relator was entitled to the relief prayed fa; his proceeding would be the proper remedy under the above article. 4 R., 227; 17 A., 252; 20 A., 521; 25 A., 136, 227; 34 A., 1177; 35 A., 1101; 36 A., 210; 41 A., 41; 47 A., 1482; 50 A., 552; 106 La., 425, and more especially 30 A., 156.

lo - 2o The first and second points made by the plaintiff against the "intervention and answer" of the Receiver may be treated together. It is inmaterial what "name" the Receiver gave to his appearance in the case. Its name will be determined by its averments and object. The relator takes excention to the name of "intervention" given to it. Granted that he is right, the name of "answer" remains, and it is a question of law whether the Receiver had the right to file an answer in the case. If he had, then his answer prevented the plaintiff from taking a default.

3o Sec, 70 of the Bankrupt Act of 1898 vests the property of the bankrupt act in the trustee. Whatever may be the right of a defendant t,o allow a suit pending against him to proceed after his bankruptcy and his right to defend it, the statute specially confers upon the trustee the right to intervene and defend the suit in the interest of the creditors.

Sec. 11 <S b says:

"The Court may order the trustee to enter his appearance and defend any pending suit against the bankrupt".

Where at the time of an adjudication in bankruptcy property of the bankrupt is in the hands of a receiver appointed by a State Court, the trustee should intervene in such suit for the protection of the interests of the creditors of the estate. In re Klein, 97 Fed. 31.

Congress might have provided that all pending aits, with or without seizure, should abate by the bankruptcy of the defendant. It has not done so; but it has wisely conferred upon the Court the right to order the trustee to defend such suits.

It certainly meant that the trustee should take the place of the defendant and plead instead of him. How otherwise' would the object of the law be attained? If plaintiff could take a default and confirm it in this case, his execution would reach the money in the Sheriff's hands. How could the Receiver protect the creditors after the prooerty of their debtor Bad gone into plaintiff's hands. After a trial against the Receiver plaintiff's claim might prove unfounded. But it would then be too late to benefit the creditors. Bankruptcy proceedings are in the nature of a concurso, and persons asserting claims against the bankrupt must make proof of their claims contradictorily with the representatives of the creditors, in order to protect-them against fictitious demands. -In Scnall vs Kinsella, 117 la., 695, the Court said:

"The trustee having made himself a party to the suit and contested plaintiff's demand, became a defendant in the case for the carrying on of the same to termination".

We conclude, therefore, Y/ith the Judge of the District Court, that the apoearance of the Receiver, by intervention and answer, had the same force as an answer by the defendant himself and had the effect of preventing the plaintiff from taking a default against the defendant, and that the case must be regularly called and fixed for trial upon the issues raised by the Receiver.

4o The relator is correct in his proposition thatthe Receiver cannot claim the property of the bankrupt to the prejudice of the previous seizure made to satisfy a contractual privilege. 117 La., 687; 123 La., 319; 132 La., 235; 16 Wall (83 U.S.), 551; 225 U. S., 639.

But the pleadings of the Receiver dislaim any such inr tention.

It is therefore ordered that the rule nisi be recalled and that the Certiorari and Mandamus be denied.

Mandamus denied.

December 20th,1920.


author: By his Honor John 3t.Pawl-

text:
    NO 8059.
    FRANK CASTAGNA VS G. W. GONNET
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0PIHI03,

By his Honor John 3t.Pawl-

Plaintiff anal for poasaasion of leased premises and ^ad judgment- Within 24 honra the defendant applied for a new trial, whioh was granted. Sixty days thereafter the judge recalled hia order allowing a new trial; and thereupon exeoutlon issued, whioh we are now asked to arrest.

She single question presented la whether or not a tenant oondemned to deliver leased, premises may suspend exeoutlon of the Judgment hy applying for (and eren being allowed) a new trial.

lot 49 of 1918 provides that "if the tenant does not comply with the Judgment (of evlotion) within 24 hours after its rendition", the judge shall order the immediate exeoutlon thereof.

This statute is in the same terms as Aota SIS of 1908 and 52 of 1900-Interpreting these two statutes the supreme Oourt has said that suoh judgments beoame executory 24 hours after they are "orally announced", Mallie vs Judge, 128 La 914 (918); provided that the tenant has not "suspensively appealed within the time", Hotel Co vs Brauning, 119 La 1070 (1075).

December 1920.

And in substance that oourt has held that the whole matter of obtaining relief from judgments ousting tenants, la regulated by speoial enactments and not by general laws (119 La 1076).

We therefore oonoluds, in view of the peremptory language of the statute and literal application thereof by ' the Supreme Oourt, that a judgment ousting a tenant becomes final and executory 24 hours after it is "orally announced", unless the tenant exercises the right of appeal giren him by the Constitution (and by Statute); and that suoh Judgment oannot be suspended by the granting of a new trial.

The writs herein issued are therefore recalled and this proceeding dismissed at relator's cost.

Hew Orleans la,


author: By Dinkelspiel; J'

text:
    No. 8060.
    COURT OF APPEAL. Parish of Orleans.
    J. P. HUDSON SONS COMPANY, Plaintiff and Appellee, versus MORGAN’S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY, Defendant and Appellant.
    By Dinkslspiel; J.
   By Dinkelspiel; J'

Plaintiff brings this action February 34th, 1916, against the defendant Company, alleging that on January 4th, 1915, plaintiff shipped from national Stock Yards at East St. Louie, Illinois, to Itself at Thibodeaux, Louisiana, twenty two mules which moved from point of origin to Hew Orleans via the Louisville & Nashville Railroad Company and thenoe to destination over defends ant's line, alleging further that the mules were all delivered to -the defendant at New Orleans in good condition, but that on arrival at Thibodeaux, one of the mules, worth Two Hundred Twenty Seven and 41/100 Dollars was dead "due to the rough handling of the oar by defendant company or ire employees.11 Wherefore they prayed for judgémtn against defendant for Two Hundred Twenty Seven and 4l/l00 Dollars, with legal interest from January 13th, 1915, until paid.

The answer of defendant admits the shipment of mules and that one of them was dead on arrival at Thib-odeaux; further admits that the mules were in apparent good condition when received by defendant at Hew Orleans, but does not know their real condition after their long journey from East St. Louis; denies that the death of the mule was due to rough handling by defendant or its alleges employees and/ttetafrat the conditions of the bill of lading attached to plaintiff's petition, the feature of which was that the shipper released the carriers from liability for damages from certain enumerated causes and from every other cause which did not result from the negligence, of the agents or servants of the company and if there was damage it was limited to the sum of One Hundred Dollars¡further alleges that the death of the mule occurred at Schrever, Louisiana, during the night of January 8th to 9th, while the car was stationary.

There were a number of witnesses examined-

Bourgeois, who is the defendant'3 Agent at Thib-odeaux, testified that the oar was in perfect condition and the other twenty one mules in like good condition.

Drexler, the veterinarian, testified as to the position and appearance of the dead mule and stated that it had died of a broken neok.

Alonzo, another witness, testified that he was the freight conductor who handled the car to Schriever from Hew Orleans and there was no rough handling, the car was set out at Schriever shortly before n.iinirht, January 8th, 1915; apparently the mules were in good condition; he' looked with the aid of a hand lamp through the boards in the side of the car rnd saw nothing wrong.

Tucker, hight clerk at Schriever, testified that, the car was sent out at eleven fifty five P. R. January Sth, he checked the seals and noticed nothing wrong with the mules.

Daigle, the day clerk at Schriever, testified that he lt§s& went on duty the following morning at six thirty A. M. and he found a deed mule in the center of the oar which apparently had been dead for sometime.

An examination of this testimony fails to convince us that the defendant company has carried out its contract with the plaintiff. The reference to the last case quoted by defendant Company, in its brief, HcHenry Horse Exhhange Co. vs. Illinois Central E, E. Co. et al, does not in our opinion come within the purview of this particular case for the reeSGn the.t there the railroad company was sued for a mare which was lost or wrongly carried in transit and never had been delivered to petitioner notwithstanding amicable demand. In that case it was shown to the satisfaction of the Court that the railroad company diligently guarded the car in which this mare was being shipped; they had a proper car for the transportation of horses; the horses were unloaded at Jackson, Mississippi, fed and watered and found to be in good condition. Three hours later the train stoppec at Crystal Springs, Mississippi, the horses were again examined and all viere standing; when the tr^in stopped at McCom’o, a station fifty three miles from Crystal Springs on the same day, tho oar containing the hourees was again examined and one was found dee.d; the remaining twenty one in the car were all standing and apparently in a sound and healthy condition and uninjured; the oar which carried t}ie horses from Jackson to Crystal Springs and from Crystal Springs to McComb received no rough handling and was in no accident, hence the SEmgany Court goes on in its opinion to say "there was no evidence showing negligence on the part of the defendant".

The Civil Code, Art. 3574 provides that "Carriers are liable for loss or damage for things entrusted to their care unless they can prove that such loss or damage has been occassioned by accident and uncontrollable events".

"The carrier must prove the precise cause of loss. It will not suffice to prove merely due diligence but the carrier must prove more than the accident was occassioned by fortutious event or by any irresistable force or by a defect'of the thing itself or by the fault of the shipper". 115 Ls. page 1.

In the National Rice Milling Co. vs. the N. O. & N. E., 132 La. 615, "According to law and jurisprudence of this State, to be relieved from liability the carrier must prove that the loss or damage has been occassioned by accident or uncontrollable event and thi3 involved the proposition that the carrier must prove that it was free from fault".

Truxilo vs, T. & P. R. R. Co. and L. & N. R. R. Co., 7 Court of Appeals, page 18.

"Presumptions of fact,''.vixen justified, are entitled to as much weight as any species of evidence. Facts established by fair presumptions are as well proved as if testified to by witnesses."

"Even where the shipper assumes all ri3ks, but the negligence of the oarrier, the burden of proof is- ■ still on she carrier to show that the damages occurred through no negligence of his."

Vie are therefore of opinion that the evidence 103 3 accounts satisfactorily for the/j5S»SX3S sustained by plaintiff in this case and that for' these damages the defendant is liable.

For the reasons assigned, it i3 ordered, adjudged and decreed, that the judgment of the Court xquo be and the same is hereby affirmed, the costs of both Courts to be paid by appellant.

-Judgment affirmed-


text:
    NO. 8061.
    CLARENCE L. BOUGERE VS MARCELIN JONES, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIHIOH.

By his Honor John St. Paul.

On April 24th 1911, plaintiff brought suit against Maroelin Jones for $1492.3,0 due him since January 9th 1910, J(rr- and obtained judgment thereof on April 8th 1912. Whereupon he took out -a writ of Piri Paoias under which the sheriff seized and offered for sale a half interest in certain lands; which half interest was appraised at $100, and was duly adjudioated and sold to plaintiff dn August 12th 1914 for $425.

On Sept- 1915, plaintiff filed this suit to have oanoelled (as being simulated and fraudulent) two oertain mortgages, one for $125 dated April 22nd 1913, and one for $600 dated April 24th 1911; both nominally in favor of Toussaint Jones, a brother of said Maroelin Jonas. To which suit the widow and heirs of Joseph Jones, a deceased son of Maroelin Jona3, have been made patties as claiming ownership of the aforesaid $600 mortgage. As to the $125 mortgage, the evidence shows that it has been paid and thus vanishes from the oase; so that it need be mentioned no further.

I.

I. The sheriff's sale to plaintiff is now attacked, but only indirectly, that is, it is suggested in argument that it is not valid. But even so/the defendants have in raoonvehtlon asked (not in the alternative only, hut absolutely) that they be given Judgment against plaintiff for the amount of said mortgage, as having been assumed by him as part of the purchase pritre at sheriffs sale; and they close their brief in this court with a like prayer.

Accordingly defendants are estopped from questioning the validity of the sheriffs sale, since one who receives or claims the price of a sale or any part thereof neoess-arily cannot be heard to deny the sale itself, on the validity of whioh he must depend in order to claim the price. Massie vs Brady, 41 An 553; Dowling vs Gally, 30 An 328; Williams vs Springfield, 15 An 535; Sittig vs Morgan, 5 An 574; Headen vs Oubre, 3 An 142.

3. Moreover the validity or invalidity of the sheriff's sale is quite immaterial for the purposes of this case, wherein the judgment merely "annuls the mortgage and orders the cancellation of the inscription thereof", See the Petition of Appeal, Paragraph I.

Por it cannot be denied that plaintiff is at least a judgment creditor of Marcelin Jones; and hence, even as such, has the Undoubted right to attack any oontract made by his debtor in fraud of his rights. C. C. 1970, 1972, 1973.

XI.

II.

The only remaining question of law herein is whether plaintiff assumed payment of the aforesaid mortgage as part of his hid at sheriffs sale.

But there is a difference between assuming payment of a mortgage as part of the price of a sale, and merely buying for a fixed price property that is actually or apparently subject to a mortgage, but without assuming the payment of such mortgage. In the first case there arises a "stipulation pour autrui,” a new and independent contract, standing or falling by itself and giving rise to consequences wholly beyond the original obligation. Scionneaux vs Waguespack, 32 An 283, 287, 288. Hence the party is bound personally and absolutely bjt his new undertaking. In the second, "a purchaser of property subject to mortgage x x x acquires it subject only to mortgages actually existing therson; x x x he may oppose all defenses which the mortgagor Mé&tié Would have opposed, x x x and the mortgagor cannot deprive him of these hy waiver or otherwise." State vs Citizens Bank, 33 An 705, 708.

How sheriffs sales may be made either in the one way or in the other; Balfour vs Chew, 4 Martin N. S. 154. If A the purchaser is required to assume the payment of prior mortgages he is for should be) personally and absolutely bound by his undertaking to do so; and then he can not sat up any supposed invalidity in the mortgage, since it is part of the price which he promised to pay: Trudeau vs McVicar, 1 An 427. If on the other hand he simply purchased subject to prior mortgages, then he is not personally bound and may show that such prior mortgages are nullities; Peets vs Wilson; 19 La 478, 481.

This much also is clear, that if a bid at sheriff's sale must in all cases exceed the sum total of all the fradulent and simulated mortgages with which a debtor may see fit to load his property, then a sheriff's sale becomes an impossibility; for the debtor has it always in his power to make it so, by placing upon his property simulated mortgages in excess of its value. But that is not the law; 19 La 478.

III.

In this ease v/e have the sheriffs proces verbal before us. It shows that the sheriff simply read the mortgage ■certificate as required by law, and then called for bids; whereupon plaintiff bid .'¡>425 for the property (appraised at $100), for which sum# it was adjudicated to him. Plaintiff did not assume the payment of this or any other mortgage whatever, and hence merely took the property subject to such mortgages as might validly exist thereon. If such mortgages as appeared against the property were null, or had been extinguished , he has the right to show this if he can.

On the question of faot, the trial juaga thought, and so do we, that the mortgage was a pure simulation. It was executed on the very day plaintiff brought his first suit; and from that day to this fcertainly until June 26th 1919) nothing whatever has been either paid or demanded at any time on account of either principal or interest, although the supposed owners thereof are in needy circumstances. And the Rotary before whom the mortgage was passed testified that the mortgagor came to him with the nominal mortgagee, his brother, declaring that he wished to place a mortgage upon the property in order to protect it against the alleged unfounded claim of some oountry storekeeper (plaintiff); that the mortgagor himself retained the mortgage note and left the office with it in his possession; that the mortgagor's deceased son, Joseph Jones, heard his father's statement and signed the act of mortgage as a witness (as the aot itself shows).

Opposed to this is the testimony of the Mortgagor that ha owed his son money for w.ofk done some years before, at $1,50 a day, none of which had ever been paid; that his son was olamorous for his money beoause he needed it, and hating no money he gave his son this mortgage (which the son signed as witness); that he told the Rotary what he wanted to do, and the notary gave the note to his son. That the amount of §600 was not figured out hut just guessed at; "I said: He worked long enough for me to pay him §600. I will make a mortgage for $600."

May 16th, 1921.

Also the testimony of the son's widow: That she once, saw the note in the possession of her husband, and that after his death it was handed to her by the mortgagor himself (who claims to have recovered it after his sons' death from a woman with whom her son boarded).

Even apart from the testimony of the notary we believe this mortgage to be simulated; and with that testimony we fee'l quite oertain that such is the o ase.

The judgment appealed from is therefore affirmed.

Judgment Affirmed.

Hew Orleans la,


author: CHARLES P. .CLAIBOREE, JUDGE.

text:
    Charles Í. Claiborne, Judge,
    WILLIE WASHINGTON, Appellant vs T. SMITH & SON
    No. 8062.
    January 10th, 1921.
   WILLIE WASHINGTON, Appellant vs T, SMITH & SOH

Ho. 8062

Appeal from Civil District Court, Hon. Porter Parker, Judge.

CHARLES P. .CLAIBOREE, JUDGE.

This is a suit under the Employer's Liability Aot Ho. 20 of 1914 as amended by Act 243 of 1916 and Act 38 of 1918.

The plaintiff alleged that on March 31st, 1920, he was employed by the defendant^!. Smith & Son, as a longshoreman; that he was engaged in loading a steamship under the direction of the defendant^that while so engaged and while upon the wharf he attempted to cross a thoroughfate for vehicles when he was struck by a truck owned and operated by the Cresoent- Porwarding Company and thrown upon the ’floor of the said wharf and severely bruised about the body and back and side, and cut in his left hand; that he was confined to the Charity Hospital up to April 6th, 1920, and^on that day removed to his home where he was confined to his bed for two weeks; that up to the present time he is totally disabled from performing any work, and will continue' to be so for another four months) that he was earning $40 a week previous to the accident; that he now elects to receive the oompeneation due to him by his employer under the Employer's Liability Act of 1914 as amended by the Acts of 1916 and 1918. He prays for compensation at the rate of $16 per week from Earch 31st, 1920 until he is again able to resume work, and for $25 expended by him for medicine and medical attention.

The defendants admitted that plaintiff was working for them as a longshoreman on March 31st, 1920, that he was struck by a truok as alleged,and injured, but not as seriously as alleged; they deny all the other allegations of the petition and specially aver:

"that the injuries that plaintiff received were due to a third person; that the plaintiff, under the provisions of Aot 20 of 1914 and all laws amendatory thereof,' had the option of either receiving compensation or proceeding against the third person who caused the injuries; that on April 12th, 1920, plaintiff informed defendant herein in lilting that he had selected to proceed against the third person and that he did not desire any compensation, and in coriseciuence of which, as the plaintiff has elected not to receive any compensation, he is not entitled to a Judgment in this case, hut must proceed against the third party"J

they further aver, that the plaintiff is not entitled to medicine and medical attention for the reason that he elected not to take compensation, and that the defendant ovjfled none tmless he accept-» ed the physicians of the defendant.

The plaintiff had also cited as defendant the Union Indemnity Company. The exception of the Company that it was not liable unless the employer becomes insolvent, was sustained and the suit against it dismissed. The plaintiff admits that the judgment in this respect in favor Of the Insurance Company is oorreot.

There ms judgment in favor of the defendants, T. Smith & Son, and against the plaintiff Washington, and he has appealed.

Upon the trial of the case the following admission was made:

"It is admitted that on the 12th of April 1920 plaintiff in this case, when he was offered compensation by T. Smith & Son, defendant, stated that he did not want oompensation and desired to prooeed against the third person, and signed the following document:
Mew Orleans, La., April 12th,1920.
"This is to certify that I do not wish to accept oompensation from my employer, but wish to make claim against the owner of the truck that injured me on Jferch 31st, 1920.
"Signed* W. Washington
his X mark.
V/itneoses:
U. I. Forrest II. Braaill
The statute upon the subjeot is Seation 7 of Aot 20 of 1914 p 49 amended by the Act of 1918 p 52 which reads as follows: Section 7."lo Lc it further enacted, etc! That when an injury for which compensation is payable under this aot shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee or hi3 dependent may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having beoome liable therefor, shall be aubrogatod to the rights of the injured employee or his dependent to recover against that person, and may compromise the claim therefor in his discretion; &o"

She language of the aot sufficiently indicates that the law did not intend to seoure to the employee a dual concurrent remedy, one against his employer for compensation under the aot, and another for damages under the general law against the third person causing the injury. But the intention of the legislature clearly appears to restrict the aotion of the employee against one of two parties, either the employer or the third person. The statute distinctly says:

"the injured employee may, at his option, either claim oompansation under this aot or obtain damages from or proceed at law against such other person to reoover damages &cn.

He must elect one or the other for a defendant, and one or the other of the remedies; but he oannot reoover both compensation and damages. Any other oonstruotion would lead to the following consequence, that a workman could sue both hilo employer and the third person and obtain judgment against both, and thus re-oover a double indemnity for a single injury; and after the employer had paid the employee, he could, under the statute, sue the third person, and reoover from him what he liad paid, thus inflicting a double penalty upon the third person. Such a condition of affairs might lead to speculation, collusion, apd oppression, whioh we are bound to presume the legislature did not intend. Such was tlie construction of the statute in other jurisdictions. Workman's Compansation Acts C. J, Pamphlet p 140 > 168.

Ihe question arises, how is this election to ha shown, and does the document quoted above evidence such an election?

Agreements and releases by employees, total or partial, for an inadequate consideration, have always been looked upon vri V suspicion. C, J, Pamphlet p 65 § 47,

Tlie employee may show they were abtained by fraud. xa p 141 § 168.

In the case of Boikens vs R Rd , 48 A., 831, the plaintiff had affixed her mark to a reoeipt for §10 as a "donation", pud had acknowledged that the defendant was not at fault and that the aooident had oocured through her own carelessness. .Che Court said.

" "We cannot attach conclusive importance, under the circumstances, to the mark affixed to the reoeipt by this ignorant old woman. It was a donation, or at any rate, the word ."Donation" is written in the instrument signed. In this instrument she declares that she was not accustomed to the City cars, while, in reality, tí¡ a were employees present who 'ware aware of the oon-irury; that aha was a frequent passenger, a patron of the road since many years. Suoh a reoeipt, signed by any one of ordinary intelligence, would be binding and

Share is not a word of pleading or testimony in this cace i.iiir.sg.-.i.dg the validity of the election made by the plaintiff. She document is sufficient to constitute a binding eleo-t on. It is not necessary that the eleotion be evidenced by a ;■ .it.

In the case of Mc Garvey vs Independent Oil Co., 146 N. W., 895, the Court said:

"In case of an employee, in the course of his employment being injured by the actionable negligence of a third person, a statutory remedy aocrues to him for compensation against his employer and a common law remedy against such third person, though he cannot have hut one satisfaction. If he elects to pursue the common law remedy he waives the statutory right, and if he eleots to pursue the statutory remedy, the employer hy succession - ipso facto and eo instantl - becomes the owner of the right against the wrongdoer and may enforce the same in his own name*. Workmen's Pamphlet P 141.

In Cripp's case, 104 N. E., 565, Workmen*s Pamphlet p 140 (b) the Court said:

"She employee by his election to take ’damages, even if received without suit, and under the condition that the' pause of action must he released would exercise the option given by the statute. It would be toe teohnieal and refined a construction to treat the wording of the act as referring solely to an aotlon for personal injuries, and, if the employee had asked for compensation, the settlement with the Company, if not set aside would have barred the claim".

Considering that the election was made a matter of special defense that there is nothing upon the face of it that indicates error or fraud, and that it was not attacked upon the trial of the case by testimony, we feel bound to decide that the defendant had a right to rely upon it as "binding and conclusive" upon the plaintiff.

If the plaintiff is not entitled to compensation under the act, he oan claim none of its benefits. Ee cannot claim medicine and medical attention provided hy the act, because they form part of the items of damage to be paid by the employer or third person. But apart from this view, é 4 of Seo. 8 p B1V of the Aot of 1916 provides!

"The employer shall in every oase furnish the employee reasonable medioal, surgical, and hospital sarvioe and medidnos net to exceed $150 in value, unless the employee refuses to allow them to be furnished by the employer" .

We construe that language to mean that it is only after the employer baa refused to furnish that relief, that the workman can himself provide them. She reason is obvious; it is in order that no fraudulent or exaggerated claim should bs built up against the employer. In this case the plaintiff engaged his own physician without consulting the defendant. Workman's Compensation Pamphlet p 100 % 9?,

Judgment affirmed,

January 10th, 1921,


author: By Dinkelspiel} J.

text:
    NO. 8067
    COURT OF APPEAL PARISH OF ORLEANS.
    KARL HANSEN versus NATIONAL SURETY COMPANY.
    By Dlnkelsplel; J.
   By Dinkelspiel} J.

In order to oorreotly decide this oase we refer to the record Ho. 121069 of the Civil District Court, the suit of Conservative Homestead Association versus James C. Tourney.

In that suit, to which this is-the outgrowth, the plaintiff there sued the defendant beoause he had entered into a written contract to ereot a certain building in the City of Hew Orleans, for the sum of $4094.00, and to which oontraot the defendant in the present suit was the surety of the defendant in that oase and alleging that Tourney had defaulted after the first payment which was on January 19th, 1916, plaintiff in that suit called upon the surety for defendant to jskjc proteot the plaintiff in that case, under its bond.-

A judgment was rendered condemning the surety oompany to pay the various privileged oreditors the amounts due them and the Surety Company, defendant in this oase was ordered to finish the building.

In accordance with judgment rendered, the defendant Surety Company employed the present plaintiff to finish the building for Seven Hundred Dollars} plaintiff was to furnish the labor only end the defendant was to furnish the material. Plaintiff proceeded tm. with the work, when his oontraot was cancelled and a new contract made with a Hr. Frank to finish the building and furnish everything, plaintiff being notified to get off the building and work, which he refused to do until he was paid for his labor and profit and for his labor he claimed $113.00 and for his profit and damages the sum of $350.00.

Defendant filed exceptions which we re all overruled and referred to the Merits* He answered 'that he had discharged the plaintiff for good and legal cause and had ordered him to quit work and that the only money that plaintiff was entitled to was the ao-incuxrsd tual expense/and labor furnished prior to January 19th, but was entitled to no damages.

On the trial of this oause evidenoe pro and oon which at time3 exhibited more or less of ill feelings between the parties, but which finally resulted in a judgment for plaintiff in the sum claimed.

A resume'Of the evidence introduced together with the admissions made hy the defendant in thi3 case satisfies ub that the plaintiff endeavored to execute' his oontraot v/ith the defendant; he started the work under the supervision of a Mr. 3enson, an expertj and consulted an architect as to his duty, who examined the premises in question, advised plaintiff of what he should do and on whioh cdvice he, plaintiff, acted; he has established that he expended the amount of money he claims in this case and that he was prevented from finishing the work through the acts of the defendant; he has sworn that the damage v/as §350.00, the amount of profit he would have realized had he completed the work and both the Code and the Authorities concur in allowing him this and we ere satisfied that he is entitled to the full a-inount of his claim.

Art. 3735. C. C. Cancellation of Oontraot by Owner. "The proprietor ha3 a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and lab- or already incurred, and suoh damages as the nature of the oase may require."

"A substantial performance of the oontraot is all that the law requires, and the employer will not be permitted to a-vold payment beoauee the strlot letter of the agreement has not been oarfied out. Slight deviations, or technical, unimportant, or Inadvertent omissions or defects, will not bar reoovery.n Dugue vs. Levy, 114 La. p. 21; also see McCord vs. Railroad 5th Ann. 220.

"Where the proprietor has oanoelled a contract made with an undertaker for the ereotlon of a building, the Court will not award the undertaker the full amount he was to reoelve for the entire servloes necessary to oomplete the building, but will award the amount of profit whioh he would make on the oontraot, if completed.". Moore vs. Howard, 18 Ann. p. 635.

For the reasons assigned it is ordered, adjudged and decreed that the Judgment of the Court aquo be and the same is hereby affirmed, with oosts of both Courts to bs paid by the defendant.

-Judgment Affirmed-