author: CHARLES E. CLAI30R3E, JUDGE.

text:
    CnARuxbo I*'; CLAIBORhbj.
    ANDREA BONURA VS JNO. F. DAVIDSON, Jr. et als.
    No. 7630
    November 10th, 1919.
   CHARLES E. CLAI30R3E, JUDGE.

The only question in this case is whether the broker •who brought about a contract of sale between the plaintiff and the defendant herein is entitled to a commission. The pleadings are a.s follows:

Plaintiff Bonura alleged that in accordance with a Tiritten- document annexed to his petition he agreed to buy from the defendant, Davidson, a certain lot of ground for the price of §2100; that he deposited ten per cent of this price, say.. §210 with If. J, hiesi, the broker who effected the sale; that he, the plaintiff, refused to consummate the sale and to take the property for the following reasons:

A. "Petitioner had had no opportunity to^examine the improvements on said-property before the time when said agreement to purchase was signed, and, upon examination, found that the improvements were not ae represented; that the buildings on ’said property had not' been erected in a proper and workmanlike manner; that the said buildings and other constructions on the grounds covered by the said agreement, had not been completed";
B. "That notwithstanding the obligation of defendant, John P. Davidson, Jr,, to sell and deliver-a property free from incumbrances, the said property was not free from encumbrances, but was instead subject to a convnetional mortgage and to a judicial mortgage recorded against the said John P. Davidson, Jr. x x x x That defendant, John E. Davidson, has called upon petitioner to take said property end has threatened to forfeit the ten per cent de^pdsit made by petitioner as aforesaid, but that at the time when Davidson agreed to sell said property no valid title could be made thereto, and that, notwithstanding the I-ur* delay during which petltieaer lias waited since t} at time, the said John Davidson’s title to seicl property is still encuno-i-red ?,nd faulty as aforesaid".

Plaintiff therefore prayed for judgment against John ?. Davidson for double t?ie amount deposited by him, or ¿420, and against Clesi for ¿210.

The document a ( lexed to the petition is in the following

"hew Orleans, 4 - 1 - 1916.
hr. 1.'. J. Clesi.
I '-'erccy agree to purchase tl rough you the following ^escribed r{■»/*! estate: 2500-02 Prieur - double cottage - 4 rooms each side - ground Pleasures 33 x 80 - T’-'c price to je Tv/enfy-onc Hundred Dollars - Terms of pJLl cash .< x x If this offer is accepted, I bind, myseli to deposit rn th you, i rj.vedintely, ten per cent in cash of the purchase price, also to take the property upon above terns, if a good and valid title cr-n be given. In the event of ay failure to comply -ith the terns of this offer, I ouligate myself to pay on demand your cor-ifiission of three per cent on the purchase price and any attorney’s fees and costs of court \f,uieh you mityit incur in enforcing collection of your claim, x x x
“Si/neó" And red D onura
”1 accept the above offer, also tenas and conditions, ij;d agree to pay you for services rendered 150.00 wfi'ié being earned und payable 'he-i /r-.reement to parchaoe ie signed :\.*.d t ’.o offer accepted.
”Signed” John F. D;'**id:-.on
by A. L. De Jun¿" .

The Oefendmt Clesi admitted t u deposit of ¿210 and for defense aVJe^ed:

He admitted i .at t evo "'as aviur;†. sc iú property a judicial a .id conventional art out tr? I said mort^a^eo to^ct'er i .ou.ic.ed to far less thai. t.¡e agreed párchese price of the property; that far from rjl^i-vtiff being entitled to fc.:e clotide of the aiiotu L deposited by hi*”, ho has in fact forfeited the deposit of $210 and ocsides lias .is.de himself liable to Clesi for three per cent of the amount of the purchase price together with £50 attorney’s fees, v-iiich he claimed in reconvention.

Davidson admitted that "Lie plaintiff '•’ad refused to take the title, on account of the existence of th‘e judicial and conventional mortgage *-'hich he admitted; but he averred that they were less in amount than the price of sale agreed upon, and tnet, in the usual course of ousiness, they would have been can-celled at tie time of signing tne act of sale; he admitted that he had called upon the plaintiff to take the property and tutit upon his rhilure so to do /is deposit would be forfeited; he aslced that the plaintiff’s petition be dismissed and for judgment in reconvention for $.°50.

There v:as judgment for the plaintiff as prayed for, and rejecting the reconventional demands of the defendants.

Prora this judgment Clesi alone has appealed.

The allegations of the petition and of the answer are borne out oy the evidence.

Delvaille K. Theard, attorney for the plaintiff,testified that he represented the oleiutiff *?hen he purchased the property; that Joseph Lautensc/.l:-..er represented the defendant; he notified ~r. Lauucnschlae0er that refused to take t.ie title for the reasons stated in the petition and oecause the property was subject to a jadg-ient Mid to a aortgage €w,ainst Davidson; on April 21st, 1915, i.r. Lf»uteiischlafc¿er "'rote to his office a letter in ... joh he stated that if Bonura did not the property he was going to put Jim in default; he did nol answer Lautenschlawger in -tí ting; but he* told M*n tn put Sonura in default end thrt he refused t .e oitle oecnase t”?n .uort ;«ges on tne property; L'-atensc""!?e..er never put hi ft in default; he cet him several tim&ti on the street and ar.Jced hi.-) to put Donara in default; finally in Sovencer 191c, while tne judgment n.:l tne iort„..c.»je •■ere .still recorded against t ie property, .-<e ..rougnt tnis suit-for f e reason that t.:e jad... luí ;.na the lortj.r.e still rested on the property and .Tor t-o other reason «-írte.d in the petition.

The convelí neo certificate •. ows that Davidson sold this property on July 7t i, 1916.

Davidson swears Ve col’ it for 7T1TK-. The defendsuit Clesi testifies: “we can deliver the property at this time at the price that Bonura purchased it for",

The plaintiff has abandoned his first ground of action»

The plaintiff.’s obligation reads as follows:

“In the event of my failure to comply with the terms of this offer, X obligate myself to pay on demand your ((^lesi’s) -commission of 3 per cent on the purchase price and any attorney’s fees &c“.

^ Of course that meant a failure to comply sithout any valid cause on the part of Bonura. We thinh Bonura was without valid cause for two reasons: First: the existence of a mortgage upon property offered for sale is not sufficient ground to reject the title or to refuse to pass tne act of sale, unless it is shown that it is riot in the power of the prospective vendor to release trie mortgage or that he refuses to do so. To hold otherwise v/ould put it out of the pwwer of an owner of property encumbered with a ■‘tortgoge to sell it, and would place the property out of commerce. The point was nade and decided in Grinshaw vs Hart, 6 Rob., 265. The facts are as follows: Defendants contracted to purchase a. piece of land but refused to execute the contract on the ground that the property was encumbered with mortgages. iEn an action for a specific performance, held^that the existence of the mortgages authorized the defendants to retain the price until the mortgages were released or security ¿ivea? out did not absolve them from the obligations of completing the purchase.

It is true the.o in that case it appears that the rotary, in preparing tne act of sc.le, had included a clause for the intervention of the mortgagees and their release of the mortgage on payment of their claims out of the price to be paid by the purchaser; rnd that the mortgagees v-ere ready and willing to grant a release on receiving payment of their claims; and that this evidence does not apoear in this case. But the case did not turn upon that point. Whether the act provided for tne intervention of the creditors or not, whether t*.e creditors were willing or not to grant a ro3 ease, all the purchaser had a right to do, was to retain, out of tne purchase price, the amount of tr.e mortgages. But he the last proposition sound or not, we entertain no doubt that if the nortgage creditors are billing to release their mortgage at the time that the £>urchaser parses toe act of aale and pays the price, that he ca\not refuse to accept title to a property on the oare ground that there ere nortgages recorded against; it. See 7 L., 290; 7 A., 477; 36 A., 989; Dalloz Codes Ann. Art 1599 ifo. 109 p. 89.

II. The ¿urden iras upon the plaintiff, as purchaser, put the defendant Davidson, as vendor, in default, if he ed to cancel the sale. Davidson*s inaction a passive tt violation ?nc did not authorize the plaintiff to demand a rescission of the sale without puttin„ Davidson in default. In the ct’pe of Sewell vs Wilcox, 5 R., 83, the plaintiff, purchaser, brought suit to cancel the sale of certain Ioós of ground nn the /,round that they were encumbered with .nort^o^es which the vendor 'Wilcox had pronised, out failed, to cancel, not-vithst* nding a '^^etfer had been addressed to Wilcox notifying him that =uit •ould be broue-ht to a*u;ul t¿ e sale. The C:uvt said on p. 87:

"It does not very clearly appear whether this letter .ms received by Wilcox; out, admitting th.-t itieached him, it contained no offer on tue part of Sewell to perform his part of the contract, vn.icn was to pay the purchase money then due. x x x the putting in default of the vendor, Wilcox, was an indispensible prerequisite to the rescission of tT^.e contract, on the ground of his failure to comply -with his obligation to cancel them. C. C. 1906; 6 N. S., 229; 3 La., 382; 6 La., 151". 4 R., 162; 1 Ct. App. 34.

In Charpaux vs Bellocq, 31 A., 165, tne Court said:

(Syllabus) 11 Hie failure of the vendor to perform a condition of the sale is a passive breach of contract, and before an action to annul oecause of such breach can be .ft&iiYintined, tve vendee must be put in default. An offer to annul made oy the vendor does not amount to a default".

In Harm vs Graffagnino, 121 La., 263 plaintiff aad. agreed to soy property from the defendant; out the property was encunjered ’it'-, a .inor's aort^nge; plaintiff (vendee) called upon dependent (vendor) to erase the mortgage; t? e vendor refused; plaintiff sued for specific performance - >>eld:

plaintiff never paid nor tendered pny.ie.at of the price; suit dismissed. 14 A., 606, 234.

Davidt.cn sold the property only long after Bonura had refused to accept the title. As between them, Davidson perhaps had no right to .-flake the salcf* but the fact regains that not only Bonura failed to comply with the terms of his Offer, but positively refused bo to do, and thu3 gave life to Cle*i’s claim against him.

Considering that the services of Clesi’s attorney have boon rendered in the presence of the Court^are apparent on the record, we feel authorized to fix his fees for collecting this comiission. 5 N. S., 399 (401); 15 La., 394 (399); 25 A., 647; 27 A., 467; 49 A., 1074, 1115; 51 A., 590 (604); 9 Ct. App., 305.

V/e shall therefore fix the fee at twenty-five dollars.

It is therefore Ordered that the judgment herein, in favor of Andrea Bonura against 17. J. Clesi be reduced from Two Hundred and ten dollars to One Hundred and twenty-tv/o dollars, that the plaintiff pay the costs of nppeal^and Clesi the costs of the lower court, and as thus amended that the judgment be affirraed.

November 10th, 1919.


source: Caselaw Access Project

license: Public Domain

text:
    No. 7631
    Court of Appeal — Parish of Orleans.
    The Texas Bank & Trust Company versus Jack Bokenfohr.
    Blnkelsplel - J.
   The issues presented, in this case are substantially as follows: Plaintiff in petition filed, a corporation established under the laws of the State of Texas, domiciled in Beaumont in said State, represents that Jack Bokenfohr, who resides in this Oity and Parish is indebted to petitioner in the full sum of $1655.34 with interest and attorney's fees, as more fully shown.

That petitioner was holder and owner of a certain promissory note made by Bokenfohr and Monahan, formerly a corporation established under the laws of the State of Texas, domiciled in Beaumont in said State, on,the SOth of May, 1915, payable to petitioner sixty days after date for the sum of $1950.00, with interest at the rate of 10 per cent per annum after maturity until paid, and in case said note is placed with an attorney for collection, an additional sum of 10 per cent on the aggregate of principal and interest as attorney's fees, and on which note was paid June 19, 1915, $50.00, July 32, 1915, $50.00, August 3, 1915, $68,00 and August 4, 1915, $135.00 and the interest on said note up to the 32nd of August, 1915, leaving due the sum of $1655.34, with interest and attorney's fees as heretofore reoited.

Petitioner further shows that the said corporation of Bokenfohr. and Monahan was adjudicated a bankrupt on the 4th of August, 1915, in the Beaumont Division of the United States District Court for the Southern Dis$riot of Texas and that said bankruptcy proceedings is there pending, no dividend as yet has been received, and small dividends expected.

to noi.tsro7ííP»tÍftisDn!erl;ffu»*jMlfr rapárasSrofcs'rcthiufct*6. the 4 th of Deo ember, 1911, the said Jack Bokenfohr gave to petitioner a guarantee readingas follows: "This is to state that we personally guarantee a loan of oredit of $3500.00 with you for Bokenfohr and Monahan in such amounts and made payable at such ti#es as suits their oonvenienoe, and this-is intended to take oare of renewals from time to time, overdrafts, and in fact any and everything appertaining to said firm's indebtedness with your bank." ííhioh said guarantee was signed by Bokenfohr and Monahan per W. F. Monahan and also by said Bokenfohr.

Petitioners allege further that they loaned to said Bokenfohr and Monahan .the sum of $1950.00 represented by the note hereinbefore described and annexed to this petition on the faith of said guarantee, also annexed hereto and made part hereof.

Petitioner shows further that on the 6th of July, 1914, the corporation of Bokenfohr and Monahan gave petitioner an additional guarantee reading as follows: "Texas Bank & Trust Company,

Beaumont, Texas.

"Gentlemen:

This is to state that we personally guarantee a loan with of oredit of f2500.00 it you for Bokenfohr and Monahan in such amounts and made payable as such time as suit their oonvenienoe. This is intended to take oare of renewals from time to time, overdrafts, and in fact any and everything pertaining to said firm's indebtedness with your bank."

"Yours truly,

(Signed) Bokenfohr & Monahan,

By W. F. Monahan, President.

V. F. Monahan,

Jack Bokenfohr."

Patitloner a alleging further, show that all of thee* transactions were had in the State of Texas and are governed by the laws of said State, under which principals and co-guarantors are liable jointly and severally and that 10 per oent interest oan he legally stipulated. Further represent that eaoh of said guarantees were given petitioners in response to a demand by petitioners made upon the said Jack Bokenfohr and that neither of them were offered by said Bokenfohr for petitioner to accept or reject, and that under the law of Texas, where a guarantee is given in compliance with a demand, therefore no acceptance thereof or notice of acoeptanoe of the guarantor is necessary to make the contract binding.

Also alleges amicable demand upon said Bokenfohr for the payment of §1655.34, with interest as aforesaid, his refusal to pay, and also the note had been plaoed in the hands of an attorney for oolleotion. Wherefore, they pray for citation s,nd judgment as above recited.

To this petition an exception was filed by the defendant asserting that plaintiff's demand is based upon two inconsistent demands. A demand upon an alleged contract dated December 4, 1911, and another alleged contract on the 6th of July, 1914; that said oontracts cannot both he maintained at the same time and that if either one is valid, the other is invalid and Inoperative, and plaintiff should be oompelled to eleot upon whiob of the said two causes of action it intends to rely and proceed, and until it has so ohosen defendant should be dispensed from further pleading. Aleo pleads that plaintiff's demand was premature and non-joinder of necessary parties defendant. Further that the petition discloses no cause of action.

The exceptions being overruled, defendant answered reserving the benefit of the exception, calling for striot proof of plaintiff's status. Denies the indebtedness, but does not deny signature,

Further answering, admits that Bokenfohr & Monahan wer e adjudicated bankrupts and were still in that position at the time the answer was filed. That said guarantee lapsed, expired, was canoelled and became null and void on the execution of the subsequent instrument which was filed by plaintiff with his aforesaid petition.

Also denies that plaintiff loaned to defendant $1,950.00 or any sum represented by the note described, or otherwise, on the faith of the so-called guarantee. That the instrument referred to was executed by Bokenfohr & Monahan, W, F. Monahan, and denies "that it was an additional guarantee stipulated or to be added to the so-called first guarantee executed on Deoember 4, 1911, which guarantee v/as cancelled and held for naught on the execution of the guarantee of the 6th of July, 1914, which guarantee wae given to secure a loan of future credit from the said plaintiff to Bokenfohr & Monahan, and that the bank violated its agreement, and to refuse after the execution of said guarantee to make the advances contracted for, to the great injury and damage of both Botoenfohr and Monahan, after Claiming further that Xt the execution of the guarantee of July 6, 1914, the said bank stopped the oredit of Bokenfohr & Monahan and appropriated all their deposita to the payment of the d#bt guaranteed by this contract though seme was not due, and choreby destroyed the oredit of Bokenfohr and Monahan and damaged them to the extent of §3600.00. Denies further al1 responsibility under the guarantee and prays finally tin/, plaintiff's suit be dismissed and for a judgment in his favor of §3500.00

A oareful reading of all the testimony in this case, together with letters from the bank to the defendant; the depositions of J. L. Cunningham, F. D. Minor, Jr,, E. P. Bennett, Caithier of the plaintiff corporation, and the correspondence annexed to the said depositions between the parties plaintiff and defendant, convlnoes us that defendant time and again admitted and acknowledged his indebtedness under the guarantee, and under no state of facts, as we view them, can he be discharged therefrom.

We have also read the testimony presented by the defendants Monahan and Bokenfohr, and after statement made and their acknowledgments time and again of the guarantee that existed and given by them, it is utterly impossible to aooept the testimony and the statements therein c ontalned as a release from the guarantee given.

An attempt has been made by oounsel to show another prinoipal, among other things, a contract of guarantee will not be binding without a oonslderation. Again a past transaction or existed consideration will not s support a contraot of guarantee. A benefit to the prinoipal debtor is a sufficient consideration. The obligation guarantee of a contract of guarantee must each have a legal consideration claiming that they were distinct contracts.

This Is not a now question. Under our jurisprudence our Supreme Court in the oase of Hibernia Bank & Trust Company to. Suooeesion of Canoienne, to be found in the 14kfl,La. syllabue at page 970. "When an instrument of guaranty has been signed by the guarantor at the request of the guarantee and delivered by the guarantor to the guarantee or to the prinoipal debtor to be by him delivered to the guarantee, the oontract of guaranty is completed by the guarantees acting upon it by advancing or loaning money to the prinoipal debtor on the faith of the guaranty, and the guarantor is not entitled to notice of acceptance of the guaranty from the guarantee."

"A continuing guaranty, whereby the guarantor binds himself for the payment of such debts as the party named in the instrument may incur from time to time, continues in force until it is revoked. The guarantor, under a .continuing guaranty, is not released from his liability by the.faot that the debt contracted on the faith of the guaranty was discharged and revived during the term of the guaranty."

And again: "Although the amount of the liability of the guarantor be limited, if the time be not expressly limited, the instrument is a continuing guaranty, to the amount for. which the liability of the guarantor is limited, if the language of the instrument shows that the purpose was to give a standing credit to the principal debtor to be used from time to time.

The contention, among other things, of the defendant is virtually the defense of novation, and Civil Code Art. 3190 provides: "Hot Presumed. Novation can be made only by persons oapable if contrae ting; it is not presumed; the intention to make it must dearly result from the terms of the agreement, or by a full discharge of the original debt,", and authoriities cited.

On this same question the case of the Farmers National Bank of Lebanon, Ky. vs. Bell Alliance Company, Ltd., is in.point, and the Court at page 531 of the 143nd La. goes on to say: "Executing a new note in renewal of an old one does not novate the original debt or destroy the privilege securing the same.", citing authorities.

The Century Dictionary in defining the word ."guaranty" amongst other definitions: "In law, to hind oneself, that aX the obligation of another shall be performed, or tha$ some tiling affecting the rights cf the person in whose favor the guaranty is made shall be done or shall occur. To guaranty a contract oran undertaking by another as to bind oneself that it shall he performed or carried out." Again; "Specifically in the law a separate independent contract by which a guarantor undertakes in writing for a valuable consideration to be answerable on the payment of some particular debt or future debts, or the performance cf come duty of another person primarily liable to pay cr -perform."

The contention, that nc credit was exteno'ed or forbearance ^ranted after the execution of the guaranty of 1814 is an error. There were renewals of loans numerous times. The note upon which this suit is based is dated «ay 30, 1S15, long after the date of the second guaranty, hence we conejee that a renewal of the note or ti.e extension of an obligation constitutes consideration under tne authorities and tne law cited.

Hie Honor the judge of the lower court in a well considered written opinion, after carefully going into the law and the evidence, ¡fame to the conclusion that it wh3 a valid legal obligation and we are of the same opinion.

Judgment affirmed.


author: John at. Sutil.,

text:
    NO. 7633.
    DANZIGER & TESSIER, IN LIQUIDATION VS CRABITES COMPANY, LIMITED.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   cm.mo's,

By his Honor

John at. Sutil.,

j/f / This is a olaim for teotewago for allegad negotiating of a ^V^ease. Plaintiffs aver that they were employed by defendant to lease r*e premises Ho. 1032 Canal Street in the City of Haw Orleans, and did lease the same for a period extending from March 1st 1914 to "February 28th 1919 fat $6000 per annum net): that there is due them by defendant, as compensation, $900 (being the customary commission of 3% on the net amount of the lease).

The answer "denies that plaintiffs were employed to lease said premises; denies that plaintiff did lease the said premises; and denies that there is due and owing to plaintiffs the sum of $900, or any sum Whatever."

XI.

The defense, as thus generally summed up in defendant’s brief, is particularized in the testimony (in fine) of Ur.Baldwin, defendants Secretary, as follows;

Question: Bid you know that the transaction of'making the lease was aotually handled by Danziger t Tessier with Josiah Pearoe * Sons, as testified to by Hr. Pearce?
Answer: Ho; I did not so understand the situation. My understanding was that Judge Crabltes had arranged the lease with Mr. Pearoe, and thattha subsequent drawing up of the lease was simply OLBRICAXi WORK, to put into shape the agreement entered into by Judge Crahitea and Mr. Pearoe, and which the Crabltes Company had authorized by a resolution passed on the 7th of August 1913.
X X X X
Question: Did you■ know that Josiah Pearoe Is Sons had signed this agreement for renewal of the lease?
Answer: Ho, I did not.
Question: In fact you did not Snow of the existence of the documentuntil it was produced in court; did you?
Answer: I dont think I did. (All underscoring ours)

III.

The defense ia still further particularized, and even amplified (without objection) by the testimony in Chief of Judge Crabltes (here paragraphed and slightly abbreviated) as follows;

X reaohei Maw Orisana luring the early layB of Juna 1913, Intending to sell my holdings (1= e. the holdings of the Crahitas Company). The Brand Theatre, about which the present litigation has arisen, was under lease to Josiah Pearoe # Sons for a term of years expiring in February 1914.
Previous to my arrival I had understood that Mr Pearoe desired to tats up the question of renewal. I gtt in touoh with Pearoe, and learned from him that he was willing to trade with me but desired a RKDITCTIO” in rent. Knowing from this that I oould have him .for a tenant, if and when I desired, provided we oould agree on terms, I felt very muph reassured.
Returning (now) to the date of my arrival: I had learned that Danzlger & Tassier had been commissioned by the Wolf Estate to take up negotiations with me looking towards the purchase of my holdings.
My relations with all the members of that firm were, and are still, of a pleasant character; (and) when I learned that Mr. Danzlger oould do nothing with the Wolfs (as their representative) X put this property in the hands of Danzlger It Tessler to find a purohaser for me.
The best means of selling the property presented a series of diffloult'problems!.I was not ..desirous of leasing to Pearoe, because I was fearful'that a long lease to him might hamper me in getting a sale. On the othep hand I did not want to have Pearoe get away from me; and I spoke freely and unreservedly to Mr. Danzlger, the only member of the firm with whom I had these general relations.
¿s time drifted along, somewhere in the middle of July, or August, Pearoe grew restless; he wanteT"to oome 'to terms. I held him off as long as I oould, telling him there was no real hurry. Finally he asked me several times to bring the matter to a head, and .1 then told Mr. Danzlger that this lease to Pearoe would have to oome to a head in some form or antther. (MOTS; The data of the final offer by Pearoe, August 1st; its acceptance by Danzlger & Tessier on August 6th; and the defendant's approval thereof on August 7th; show that JURY not August, was the oorreot date.)
It was (then) agreed between Mr. Danzlger and me. in order to faoilitate the sale of the property, $o have (put)-fú»~ in control of the property, (where) his relations with Pearoe would be auohthathe oould keep the Pearoe matter in abeyance. wlthoutTSeinSporoed to givo Pearoe a definite OYla tit A W» _ ^
Finally, Mr. Danzlger advised me sometime in the latter part of September (August?) that the PQgDRMY ESTATE had' ripened into a genuine, bona fide prospeotjj-^ofbrfliing ike property to them.(MOTE; the reporter has actually written September, but that is manifestly an error. The month meant was i-UMi ATJBUST for on August 26th the POkorny deal fell through.)
He told me that the Pokornys wanted the property exclusively for investment purposes; that therefore it would be wise to ODOSE with Pearoe, in order that he (Danzlger) oould offer Pokorny a bona fide investment upoanoase's of the rental. Dater on he told me that Meyer Elsemann, representing the Pokornys, had aotually agreed to buy at #126,000 (for all the property).
With the matter In that shape, and in order to oinoh the PokorriyTrade, w|»TSh Danziger (Aoting upon infomation received from Sisemannlconaldered closed, I told him to go ahead and olose thla deal with Pearoe.
The Pokorny deal fell through, for reasons foreign to the present litigation; hut this lease having "been signed (cloaedT) upon the hypothesis that the Pokomy trade would go through, we were hound to Pearoe, although the motive for our being hound (the Pokomy trade) had fallen.
Ihe property wasaotually sold only six months later, through another real estate agent, to whom we paid his commission in full for the sale.
In other words, I considered, and I AH SATISFIED that Hr. niiti Darnsiger considered, that thTs-Tease was part and parcel of the sale of the property; that the lease was neees8ary to make the sale; and that otherwise I (having had all the preliminary conversations with Hr. Pearoe) would have signed the lease myself, hut allowed Danilger to OOHPIiBTS it (only) as being part and parcel of the sale.
Question: Was there any agreement between you and Hr. Danziger as to his being paid a commission for negotiating this lease!
Answer: There was no specific arrangement of any kind. It was along these-Tinea: (he said) "Let mé~ha¿aie' Pearoe; I am leasing him some other property, and we are in daily touoh; I will have no trouble in avoiding a definite answer." And it was mj understanding that as Hr. Danziger's commission on the saTe, if it went through, would be around (above ) $3000, his work on the lease would not be charged against the Crabltes Company.
Quastlon:That was in the event he made a sale, there would be no commission charged for the lease? (Sic, as punctuated by the reporter.)
Answer: Understand me. Hr. Danziger did not say (so) to me in ee many words. (Mr. Danziger not being present, and not apt to testify in thiB case, it is necessary that I should be perfectly fair to him.) He at no time said to me; "I will make you no charge for this lease", but it was mj unde rs tandlng and the whole basis of our conversation was, that the whole thing would go in globo, the. commission on the sale being compensation for the whole thing; Danziger knowing that I oould have closed , with Pearoe if I wanted to. And Danzlger, kngwjjTg bIbo, /érIW that I kndw that the production of the"yMjcMd" i3 one (yu< main stocks in trade of a real estate man; and that I had produced the prospective tenant and waB in a position to olose with him if -I wanted. (All underscoring ours)

XV.

These ocourences took place in the summer of 1913; and Judge Crabltes gave his testimony in September 1916.

His oroBs-exaiflnation was long. It wrought no change in the substance of that given in chief; but from that souroe we gather the following additional facts, which we think pertinent:

Question; Have you the original lease?
Answer- Personally I have not. Since I left New Orleans, Mr. Baldwin has been my alter ego: I have none of my own papers on any matter: I have no papers at all.
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Question; You are quite positivo that you aid not prior to that date fthe data of the formal lease. August 80th) instruct Mr. Danziger to go ahead and mate the lease with Pierce?
Answer; Undoubtedly prior to that date; for the reason that he (Danziger) told me, "The Pokornys want to buy, and our only chance of selling with them, is on an investment basis; X had been reluctant 'to close with Pearce, whom I had under my control to the extent that my (our) personal relations were good; and there was also the desire on my part of making the lease for a larger figure than the actual amount 5iF~was to pay.~ giving htr. Pearce a oasF'reSate ■' But Danziger advised that the Pokornys were interested in the dash consideration for the lease, and nothing else; and that the lease should be made for the ectual consideration (to be) paid, and no more. And the trade was THRU whipped into shape and CIOSED, Danziger believing, añJ so advising m®, that it was neoessary to cinch the Pokorny transaction.
mmim
Question; You authorized Mr. Danziger to make the lease with Pearce for this period of time, and it was (is) .just simply that you don't think you owe him any commission?
Answer; That is it; My understanding was (that) Mr. Danziger was to consTder himself compensated by the $3600 or $3600, fee in putting through this sale; $3600 fees, particularly at that time of the year, were not things to be sneezed at.
Question: But you said you didn't make the assertion that Danziger ever so understood?
Answer; lío, I don't say that. I mean Mr Danziger had never specifically told mo that there would be no charge made. But he said "let me handle this thing; this goes in one; this is part and paroel of handling the trade. I will handle the trade for you, and there will be no trouble about the lease*" But he nover, in so many words, told me that he would not charge a commission. But that was my understanding, and I BELIEVE. if ha wars present, it would he his; or had he not see'n the trade made hy tuiother real estate man, and the loss of his entire commission. I DOH'T THIMK there would ever~have teen a demand on as for this present sum of $900.
irirxririr
Question: Were you aware of the faot that Josiah Pearoe it Sons, #### under date of July 29th 1913, made a proposition to rent these premises through Danziger h Tessier at $6000 a year; and did you ever see the card which I now show you, signed hy Josiah Pearoe & Sons?
Answer: I knew the faot that Jo'siah Pearoe k Sons, a$ (put in touch with Danziger hy me, for reasons heretofore given), had made an offer upon the property ééi of $5000 per annum; and I also knew that Danziger was told not to olose with the*, and not to refuse; hut to hold the matter in eheyanoe, for tha Seasons I have pointed out. x x x x x The date of this document, July 29th, and the subsequent date of the lease (August 30th ), show that the matter was not pressed.
Question: Did you not have presented to you hy Mr. Danziger this proposition, dated July 29th, shortly after its exeoution?
Answer: I had knowledge of the issuance of that dooument practically contemporaneously with ltB issuance; hut I donSt recall having actually read it, But I knew from Danziger that Pearoe had made an offer of $5000. As a matter of faot, I had reported to Danziger that, whereas the property was leaaed at $7500, and I was fearful that Pearoe might not offer me more than #4000. I had seen enough of Pearoe, in my interviews with him to know that I could trade with him ARCUHD FIVE THOUSAND, if I wanted to.
Question: Did you not forthwith instruct Danziger to SScp'iWthe $5000 Proposition?
Answer: X forthwith instructed Danziger to do absolutely nothing whioh would bring things to a heaJ;Tut to use his own judgment as to the best way of keeping Pearoe on tha string, without binding us one way or the other.
Question; Then why did Pearoe & Sons two days later, on August 1st, again submit a proposition; and this time for $6000, as shown from the baok of this letter (card)?
Answer: £ know nothing of thedetails between Mr. Danziger and Mr.- Pearoe: my mandate to lianziger having-Faon to keep in touch with Pearce; not to let him get away, hut not to olose with him on any proposition.
Question: Did you not under date of, or prior to, August 6th iál¡5, instruct Danziger to aooept the Pearce proposition?
Answer: I HAVE HO RECOLLECTIQH of ever Instructing Danziger at any-iate to aoquaint Mr. Pearoe with any decision on my part. (MOTE; Baldwin's testimony above quoted, shows that on August 7th the defendant formally authorized a lease to Pearoe on the same terms as those accepted hy Danziger & Tessier on August 6th, as follows:)
Question: I show you the reverse of this document, and ask you if there is not a lead penoil offer there, from Josiah Pearoe & Bons, of $6000; and if that is not dated August 1st; and if there is not an acoeptanoe
thereof hy Danziger & Tessier, dated August 6th.
Answefs^Thare is auoh a condition of affairs tlfere.
Question; How do you reoonoile that with your statement that you were for a policy of delay, and did not want Mr. Pearce to he told one thing or the other?
Answer; X am HO® IH A POSITIOH TO ACCOUST TOR THIS TEIHS beyond what I toll-you. liy sole-cTesire in ike premises' was at all times to hold Pearoe in shape. MS BIB HOT ✓ KNOW how the Pearoe lease was to be drawn up. T¿3¡. QuibTIOH ATOOSE ajase whether Pearce was not to make out the lease for a BARBER AMOUHI and rece Its a rebate in cash from ua, to increase the purchasing power (selling value?) of the property. You see the BATE of the (formal) lease was actually considerably later than that. (HOTS; As heretofore said, the lease had been formally authorised by defendant as far back as August ?th, 1. a. the day after its acceptance by Banziger k Tessiar.)
fuestlon! Was not the lease finally eraoutaa on August Oth, under your written instructions of August 28th, for the same conslderatioh as mentioned in this document (on the reverse) of $6000 per annum?
Answer: (Yes,) SIX THDÜBAHB per annuo; that is the figure mentioned here.
Question: How did not Banziger k Tessler^fpj.Baniiger-whoever was handling this proposition-geOfnaYTTo agree to spend not less than $8000 in ImorovemantBon the premise» during the term ofthe leas??
Answer: Such an agreement is incorporated in the lea»». 'I 4on't know the exact amount; but it is around that.
xxxxxxxxxx
Question; You have nothing outside of your recollection, to substantiate your idea that the firm of Banziger k Tessier should do the work in oonnection with thfjleaae for nothing beyond the mere hope of earning the. commission on the sale?
Answer: I have stated all the facts to you; (but) I have (also) this one fact, (You opened theídoor-); That Walter Banziger was desperately anxious to make money; that hi» subsequent career shows that a contingent fee of $3600, and more, meant a great deal to him. And he knew perfectly well that I could never bind myself for a fee of $900, whan (as he knew) my tenure of the property waa going to oease, as the result of my general financial oonditlon, before theifc then existing lease expired. Mr. Banziger knew that .1 had absolutely no intereat as a landlord in that property after the 1st of February-T9T4” that my sole desire was to put that property in suoh shape, during my stay in Hew Orleans, as would facilitate a sale thereof. (All underscoring ours) —

V.

From the re-dlreot examination of the wltne»» we extraot the following, also pertinent we think, to wit;

Question; Prior to these negotiations for a renewal of this lease, had you had business dealings with Pearoe?
Answer; Yes, Pearoe had been my tenant for aix year», x x x When I reached Hew Orleans Pearoe oalled upon me, and it was clear from our interview that he was willing to trade. I should add that I was surprised that he waa willing to trade upon AS IIBERAh A BASIS aa what his preliminary conversation with ms developed, x x x I was (therefore) very much «no our aged. and did not aotnally turn hi* over in any form whatever to Danziger until none months or ao later, when the developments assumed a fora where I thought It was fair for Danziger to handle the lease se that he might not he hampered In his negotiations (for a sale). z x z z In this matter the Crahltes Company found the tenant; and Danziger fc Tasaler, with all due respeot to them, their roll was to dangle him along and send him up when the Crahltes Company wanted him.
zxzxxzzzxz

On Saturday July 19th, Judge Crahltes wrote Danziger fts follows, •Wie-the letter being on Club stationery, all in his own handwriting (and of course reserving no copy), to wit;

My dear Walter; I am going out of town to-morrow (Sunday) for the day, and may get baok too late to see you Monday morning.
I have given our conversation of this evening considerable thought, and I am confident we can afford to risk a guarantee of five years at $7500 net, provided we get the prioe.
On a 6 l/2 “0 basis it means $115000, and on a 7fj basis $107000, both will above what we can get with our March expiration soaring off nurohasera.
I am prepared to TAKE MY CHANCES ON THE RENEWAL, and can afford to pooket a loss' and stiiTw'in.
Besides, if we can get an offer based on a long lease, it means a batter prioe, and this better price will force THE R0SENTHA1S to trade; as far as they are concerned we may decide to stand pat as to expiration. Ho injustice ia done the purchaser, because etc (the rest being irrelevant).
P. 3. Why not write your CHICAGO IJSr3'HTCTI0H at once, laying the facts before it and asking a reply by wire if interested.

The "Chicago Institution" above mentioned had referenos to "some trust funds belonging to a University; the University people having stated, so Danziger told me (Crabites), that they would be interested in Mew Orleans real estate on a 6$ basis. This matter never developed at all."

The "Rosenthals” or may not, have been the same aa the "Wolf Estate" mentioned in the testimony of Judge Crabites; but it is sure they are not(at lease there Is no evidence to show, or even suggest, that they are) in any way oonneoted with the "Pokorny Estate." De non apparentibus at non exlstantlbus sadem est ratio. (All underscoring ours)

HI.

On "Monday" Judge Crabites wrote Danziger as follows, the note being oh a sheet of blank paper apparently detaohed from a soratoh pad, and suoh as one person calling on another and finding him out, would dash off hurriedly on any handy Borap of paper and leave upon his desk, to wit;

Walter; While you are figuring with Pearoe. (who by the way is in town) what do you think of the advisability of wiring CHICAGO a night letter enquiring as to whether or not they are interested.

This note bears no other date than "Monday"; whioh oould not have been later than August 4th, since the negotiations with Pearoe were finally olosed on Wednesday August 6th; nor earlier than July 21st, the Monday mentioned in the letter of July 19th; whioh latter was probably the actual data, judging by the tenor of the of the note Itself.

VIII.

On Tuesday July £9th, Pearoe addressed to Dansiger * Tessler an offer to lease the property five years at $6000 nst per {Sit and expand "over $8000 in improvements" during the leass.

On Prlday August 1st, Pearoe lacrea»ad his offer to ‡6000 per year, leee an allowance of one aonth'a rent wjiile the improvements were helog made»

On Wednesday August 6th, Danziger A Tessler aooepted the offer laet mentioned.

On Thursday August 7th, the Crahites Company formally authorised a lease to Pearce upon the same terms as those secured hy Danziger A Tessler.

XX.

On Tuesday August 26th, Meyer Eiaemann (mentioned in the testimony of Judge Crahites) wrote Danziger, then at Hot Springs, Tirginia, as follows fand part of the res gestae.):

"I received your telegram this A. M. in response to the one from Crahites. Unfortunately, the deal has gone to pieces. Mr Crahites refused to give Pokomy until Monday September 1st, in which to close the deal; and result was that it was# imposeihle to bring them to a compromise, although 1 made strenuous effortB to have the date fixed for Wednesday August 27th ( The rest is irrelevant)"

On Thursday August 28th, Judge Crahites wrote Danziger fat Hot Springs) as follows;

"The Pokomy trade has fallen thorugh for reasons outlined > in the telegram sent you. x x x I have instructed your office . ' N / to draw up the Pearce lease, and generally gete matters into y Ütté proper shape for a continuance of our campaign fthe rest < ie irrlevant)

X.

On Saturday August 50th, the formal lease between Pearoe and the Crahites Company, and the rent notes to accompany the same, were duly drawn up and signed.

On the sami day, Danziger & Tessier entered on their books a charge against the Crabites Company for the compensation herein claimed.

On Deoemher 6th, a deal for the sale of the property to ona Sr800 (an outsider) was closed through another real estate agent.

On Daoember 6th, Danziger & Tessier sent their bill for services as herein olaimed.

On Deoember 22, the Crabites Company acknowledged receipt of the bill, with a statement that it had been forwarded, for information, to Judge Crabites then at Cairo, Egypt.

On Daoember 23rd, Walter Danziger^aboeonded; ana has not been heard from sinoe.

XI.

Prom the testimony of Mr. Baldwin, Secretary of the defendant company, we further extract the following;

"x x x x About the month of Ootober 1913, I discussed with Mr. Danziger the plan of leaving him out of the proposition, so as to give another real estate man, who had approaohed me, an opportunity to see if a sale could be made. To this Mr. Danziger agreed; and after the other real estate man (Mr. Perrin) had failed to make a sale of the property, I then took up again with Mr. Danziger the question of selling the property. He failed to produoe a buyer; and in November 1912, Mr. ######## Onorato took up with me the question of selling it; and I then made the agreement with Mr. Danziger that in case of a sale by Onorato, he (Danziger) would not participate in the commission. Mr. Onorato made the sale about the 5tK of December lll3; that is, the tíéé deal was closed at that time, but the act of sale was not passed until about the 14th of January 1914. x x x."

XII.

We mention the faot that a oharge was entered on the books of Danziger & Tassier when the formal lease was signed (August 30TH) only because it so appears from the testimony; and the oharge was doubtless made in due course of business. But plaintiffs can take nothing from this as showing the then state of mind of Danziger; sinoe at that time Danziger was not in the City, but at Hoi Springs, Virginia.

We likewise attach little weight to the statements of Mr. Tessier and. his son, that they had no knowledge of any agreement to make no charge for the lease; sinoe such an agreement might have been made and they not khow It;- and Danziger, as h~ad of the firm had ample authority to make auoh a oontraot (under the oirounstanoes) if in fact he did so.

Nor do we attach any weight to the opinion of Mr. Tesaier, that it would not have teen "ethical" to make no charge for the lease. We have lately heard much of the Bthlos of some new-horn professions, the burden whereof being always (as it reaches usl that it would be "unethical" not to charge for this or that, or to charge less than so much or s- much, ffihtftschol v*" .tVJcs does not appeal to us, making a somewhat-too-lit/eral application of the aphorisÜR, "Virtue brings its own reward"

We mention the fact that a bill for services was rendered the defendant in December 6th (the day after the closing of the deal put through by Onarato) merely to negative any too-rapidly drawn conclusion that Danziger intended at no time to make such a charge under any circumstances. Por Danziger was in the city at that time, and must have had (did have) knowledge that the bill was sent.

And we mention Judge Crabites1 reference to Danziger's financial embarresment, not because it in legal evidence (the witness' own "you opened that door", being expressive of his own realization of that fact), but because it shows that the witness was himself sub-oonsoiously influenced by subsequent events in his then appreciation of Danaiger's intentions.

■XIII.

Now it needs but a caaaal glance over the evidence we have transcribed, to satisfy one that the connection of Danziger with the lease to Pearce, was not merely OLBKICAD.

But the evidence goes farther; it shows thet the roll of to Danziger was not merely^ COMPUSTB what Judge Crabites had already agreed upon with Pearce.

Thus, When Judge Crabites reached New Orleans he found Pearoe, who then paid $7600 net per annum, willing to renew but desirous of a PJkDUOTION in rent. He anticipated a claim for reduction to $4000; and was agreeably surprised to find that he could close at any tima with Poaroa "on aa libara! a basis" aa ABOUND MTS TH0U3AHD.

Juaga Orabitaa then "retired from the aoana" putting Danxiger forward to do the "backing end filling" with pearoe; and thua matter» stood until July £9th, on whioh day Pearce maa» an offer of $5000 rent, ADD "over $8000 to be expanded in Improvements."

Judge Orabitaa "knew nothing of the detalla between Mr. Damsiger and Mr. Pearoe," but on August 1st Pearoe inoreaaed hia offer to $6000 rent (and $8000 improvements) lesa however OHB MOUTH'S HKHI ($500) whilst the Improvements were being made. Whioh offer, on the ve: faae, shows all the ear-marks of a proposition submitted aa the result of serious negotiation#.

Deduot $600 from $8000, leaving $7600; and divide by five. We then have, in improvements, the equivalent of $1500 per year added to the tenant's oharge; and $6000 plus $1500 make $7500 per year, being the same amount as he was than paying. So that Pearoe did not secure a REDUCTION in rent under the new lease. On contrary/ aa the remH&tur# of rent was to be "whilst the improvements were being uade,'' it is oler" that the expenditure of $8000 was to be made in a lump sum; and as the tenant doubtless wished to enjoy those improvements, it is equally clear that this expenditure would he made at or before the commencement of the new lease; so that, interest on the advanoe considered, Pearoe would aotually pay, direotly and indireotly, K0R3 RBHn? under his new lease than under the existing one.

It is true however, that tha^Het Cash to the landlord was $1500 loss than under the existing lease; but nevertheless It was $1000 more than the "liberal basis” on whioh Judge Crabites could have closed "if he wanted to". And the landlord, whose property the improvements were to become, certainly derived sows benefit from them; otherwise why stipulate for themT

It is also true that Judge Crabites oould himself have oonduo-ted the negotiations wtth Pearce, had he chosen to do so; but then "Pearce would have ####fforoad me (Orabitaa), an owner, to to answer:" that is to say " somewhere in the middle of July", when Pearoe beoamo insistent, and whan "Itold Danaiger that this lease to Pearoe would have to o ox to a head In some form or another"! and probably on "as liberal a hula" as, ABOUHB PITS TH0Ü3UD. at whloh "I oould trade with him If I wanted to".

Be that aa It may, the fact remains that Judge Crabltea chose not to oonduot the negotiations himself, hut to use Banzlger; and render valuable servloe, not only by standing the brunt of the "backing and filling", but alBO by negotiating a lease aotually more favorable to the landlord than the latter had any reason to expeot, or even hoped for.

ZI7.

As we have stated, the formal defense was, that Banzlger had not been employed and had rendered no real servloe; but this was amplified by testimony received without objection; so that the defense now Is (substantially), that even If Banzlger did render some servloe, it was only in connection with, and as part of, his met ix* efforts to effect a sale; and that all servloes were to be compensated only by the commission on the sale, should a sale be effected by him, and not otherwise*

This is In effect a special defense, and the burden of proof is on defendant. In a very similar case (Barker vs Jung, 10 Orleans Appeals 280) we held that one who claims that a broker has waived his commission for services rendered, must prove it. In that case a broker, named Preret, had been employed by the defendant to sell certain lots of ground, Preret in turn employed plaintiff; and between them they interested one Cotton, but oould not effeot a sale at once. Shortly afterwards the defendant himself sold the lots to Cotton, and then refused to pay a commission to plaintiff, who claimed the whole of it with the consent of Preret. We said inter alia (p. 283)

"It is contended by Jung that Preret renounced his right to a commission, and that therefore the plaintiff is not entitled to any. So one is presumed to give. The burden of ptoof was upon defendant, and he has not met it (C. C. 2202). A fair interpretation of Preret's testimony is, that he agreed to waive any commission Massif In order to protect Barker in Mb right to a ooamission. As Ereret disclaims any right to the commission Barker is entitled to it."

And if we were to take the testimony of Judge CraMtes, as defendant would have us do, to mean that Danziger, whatever the nature of his services in effecting the lease, agreed finíthe hope of effecting a sale) to make no charge therefor under any circumstances : the#,however unimpeachable the witness himself, yet his testimony is not of a nature to make proof of any such claim. For the witness swears to no such faot; he swears (at most) that such was his (the witness') understanding, and to his own belief, and being satslfled. that it was also Danziger's; but he states categorically that Danziger made no suoh statement as to his (Danziger's) understanding of the matter. And there are also many things the witness cannot recollect, cannot recall, is not clear about, and cannot account for; so that on the whole, his testimony lacks that oertalnty required in the proofs of one who parries the burden of proof.

But we believe it a fair deduction from Judge CraMtes testimony to say that the understanding appears to have extended no further (on the part of Danziger, at least) than, that there should be no additional oharge for negotiating the lease, should Danziger effeot a sale of the property: and that the commission on the sale (if effected by him) should be full compensation for all his services; and hence "there never would have been a demand on ua (the defendant)" for a ooamission on the lease, had not Dansiger seen the sale made by another broker and the consequent loss of that commission to him.

That appears to have been the deduotlon drawn from the testimony in chief of Judge Crabltes by the counsel who represented the defendant when his testimony was taken; who, after hearing that testimony, and before the oross examination, put to the witness a question (heretofore quoted) _in the form of an assertion that "in the event he (Danziger) made a sale, there would be ne commission charged for the lease."

And auoh also appears to have toen the daduotIon drawn from that testimony by the counsel who cross-examined him, as shown "by his weoowi. question (as quoted atore). To which Judge Crabltes himself at ones lent his assent, with this addition, that the sale to Pokorny appeared to hare ACTUALLY BRFJf MAPS when his understand lug with Banziger was reached; an‡ error of faot on his part, as we will presently show.

Zt Is true that on his 15th, cross question (as quoted), the last but one of the cross examination, the laBt counsel attributes to Judge Crabltes "an Idea that Banziger k Teaaier should do this work for nothing beyond the mere hbne of earning the nnmm-i anion on the sale." But to this the judge answered only, "X hare stated all the facts to you, " and then adds the remar’: about PanzIgor's "anxiety to make money"; a perfeotly oorreot and oonolentlous reply, but meaning only, that the counsel might draw his own eonoluslon, and that the witness then had (partly in the light of subsequent exenta) some suoh Idea. But this is very far from an assertion that Banziger had exactly that same Idea; an assertion whioh Judge Crabltes had repeatedly refused to make.

ZT.

This oase, however, does not rest entirely on the mere lack of any positive assertion by Judge Erabitas that there was an understanding such as defendant now contends for. The Judge's evident (and expressed) wish to be perfeotly fair to the absent Banziger, may perhaps have led him unoonsoionsly into the opposite sxtrsms of being somewhatAwWalr to his own interests; and we would fool that wejcourselvos were not doing him full justice, were wo not to point out What ws believe to be the CRUX of the whole matter; and to whioh, under other oiroumstanoes, we would simply have pplnted at onoe, and gone no farther.

It is of course unnecessary to express the high esteem in whioh we (as well as all who know him) hold the distinguished gentleman. We aooept without reserve, the testimony of Judge Crabltes as being the truth, as he saw and felt it to be when he gavs his testimony. But the most truthful witness (in faot the enlv truthful withe aaj is he whose testimony pictures faithfully the state of his mind as it then la: and the frailty of human Memory does therefore often lead the most sincere of witnesses into error.

Judge Orabites testified more than three years after the oocurenaes themselves, ana without papers of any kinit^in his possession or copies of his own hastily written letters; letters of whioh the defendant itself had no copies, or even knowledge. It was but natural therefore that he should have mistaken the aotual course of events; whioh was as follows;

As early as July 19th, Judge Orabites (as his letter of that date shows) had determined to close the lease with Pearce; as late fat least) as July Slat fas show by the letter of July 19th and note dated Monday) he had in mind but two possible purchasers* the Rosenthals and the Ohjoago Institution: on August 6th the deal with Pearce was closed; Danziger MltiiStt advised him "some time in the latter uart of September," meaning August, that the Pokorny Estate had developed into a genuine prospect; the Pokorny deal fell through on Monday August 25th; and the formal lease to t^Saroe was signed on Saturday August 00th.

So that the lease to Pearce was oertainly determined upon, even and probably^oloaad, #########befpre the Pokornys had even appeared on the scene; and Judge Orabites has simply confused, with the matter of negotiating with Pearce. his own discussions with Danziger fpending the negotiations with Pokorny) relative to, whether the formal lease should,## or should not, be made out for a larger nominal rent than the aotual cash rental to be paid by the lessee; ais is shown by his answers to the 3rd and 12th oroas-questiona fas quoted above).

Accordingly weíthinfc the able and learned Distriot Judge has, in on this ocoaalon, errad tíé- his appreciation of the evidence; «naihenco we are constrained to disagree with his conclusions.

The Judgment appealed from is therefore reversed; and it is now ordered that there be Judgment in favor of the plaintiff, Danziger * leaalsr, In liquidation, and against tit* defendant, Crabitea '■> Company, limited, for the full sum of Hina hundred Dollars ($900.), with legal interest from judicial demand and all costs of both suits.

New Orleans La, January 1920


author: CHARLES T. CLAIBORNE, JUDGa.

text:
    Charlea E. Claiborne, Judge.
    WALTER S. LEWIS VS. MRS. MARY WILLARD.
    No. 7634.
    January 12th, 1920.
   CHARLES T. CLAIBORNE, JUDGa.

This is a suit for attorney's fees. Petitioner is an >attorney-at-law. He alleges that the defendant called at his ^7^ office and engaged his services for opening the Succession of --her late husband and probating his will; that he opened the succession and probated the will of her said husband, Charles 3?. Willard, and had her appointed Executrix thereunder and caused an inventory to be taken, including the examination of papers found in the oank-box of the-deceased with the view of ascertaining what had become of certain bonds claimed by defendant aggregating $6,000 in value; that the inventory showed that the deceased had left very little property; that, at the request of defendant, petitioner examined, during several days^several trunks of papers to ascertain whether any of them were of any value; that the deceased left three policies of insurance upbn his life in favor of the defendant as beneficiary; one for $1000 in the Royal Arcanum^and two for $5000 each in the- Security Mutual Life Insurance Company of Hew York; that at the request of defendant petitioner corresponded with both insurance companies with the result that two of the policies were found to be of no value, and that the Security Company admitted its liability upon one of the policies which it paid, after deducting a loan of $800, and after petitioner had prepared and forwarded proofs of death; that the deceased, Charles H. Tillard,met his death by falling from a tramway; that he was carried^in an unconscious condition^to the Touro Infirmary which refused to receive him; and that petitioner was requested by the defendant to examine into the circumstances of the accident in order to ascertain whether she had a claim in damages againstthe railway company or the Infirmary, and that he advised her that she had no claim against either; -cthat the defendant' consulted many times and at length with petitioner concerning the above matters, and that petitioner spent much time entertaining the creditors of the estate^and explaining to them that the succession was without funds; that in the safe of the deceased were found certain mortgage notes drawn hy one Saranflo aggregating #8,000, which deceased's hook-keeper said did not belong to deceased, and which petitioner discovered were the property of the Department of Banks in Ohio represented hy a New Orleans lawyer, and petitioner, advised the defendant to have the claimant file a rule so as to retain a record of their disposition; that about this time petitioner broached the subject of compensation, when the defendant informed him that he could not expect to be paid since the succession had no funds, although on a prior occasion defendant had told petitioner not to forget to send his bill to her; that petitioner had made no stipulation with the defendant for a fee; that his services are well worth #160 which the defendant is well able to pay as she has received $9200 on two life insurance policies^and owns two lots and a large residence worth $3000 after paying» the mortgage upon them.

The defendant, for answer, admitted that she had called at plaintiff's office with her deceased husband's will, in which she was appointed executrix, and told him that she did not think that it was necessary to open her husband's succession as he had left but little property; but that plaintiff advised her to have the will probated and to have herself appointed executrix; that she then engaged the services of plaintiff after he had explained to her that there was no personal liability, but that all costs and attorney's fees would be an obligation of the succession; she admits the services performed by plaintiff, but avers that they were rendered to the succession and not to her personally; that the whole service rendered by plaintiff concerning the policies of insurance’, consisted in writing to the Royal Arcanum one letter and receiving a reply that the policy was no longer an obligation of the company; that the services of the plaintiff were not necessary with reference to the two policies in the Security Company; that the resident agents of the company had obtained the necessarybblanks for the proofs of death, and that the only service rendered by plaintiff in relation thereto wm to procure the signature of the physician at the Charity Hospital which plaintiff volunteered to get; she denied that ehe employed the plaintiff to fix any liability upon the Touro Infirmary or upon the Street Railway Company; ohe alleges that she called at plaintiff'w office only when requested by him so to do, and then consulted only concerning the affairs of the succession; she avers that she referred the creditors of the succession to the plaintiff as attorney of the succession under his instructions, and that the Saranflo notes were surrendered under an order of court as a part of the proceedings of the succession; she further averred that at the request of plaintiff, she called at his office bringing with her her personal check-book, and that plaintiff then and there informed her of the total amount due to him for all services rendered to her personally to that date, for which he in his own handwriting made out a check to his own order, which he stated wap a payment in full for all amounts due to him on whatever account; and that plaintiff then told her that she was under no personal liability to him on account of the succession of Charles HLWillard

There was judgment for the plaintiff for $13. Prom this judgment he has appealed.

The record of the Succession of Charles H. Willard shows that the plaintiff, acting as the attorney of the defendant, filed a petition praying for the probate of the will and the appointment of the defendant as executrix and for an Inventory; that the appraisement of the property left by the deceased amounted to $194.28, consisting, for the greater ’part, of office furniture; that the contents of the bank-box of the deceased were scrutinized by him, and mentioned in the Inventory; that he obtained an order for the sale of the movables to pay debts; that in conjunction with another attorney he defended a rule taken by the owners of the Sarebflo notes. After this he withdrew from the case as counsel. Á few days thereafter, the defendant filed an account as executrix. The assets amounted to $215.72. The funeral charges amounted to $156.49, and the-law charges to $89.65, among '.vhich figured the following item"; "Attorney's fees, Walter S. Lewis $35"; the proportion coming to him was -''16.10. The account was homologated without opposition, but the . plaintiff was never paid the $16.10.

There were only two witnesses examined: the plaintiff and the defendant.

The plaintiff makes no claim for services rendered to the Succession proper; his demands are for services he alleges he rendered to the defendant individually. We consider that all his effotts in connection with the probate of the will and appointment of the executrix, and with the Inventory, such as thé- examination of the contents of the bank-box and of the papers in the office of the deceased, and the procuring of the order of saiet and his defense of the rule for the Sarenflo notes, and his several consultations with the defendant and conferences with the creditors are all part and parcel of the succession proceedings and properly chargeable to the succession. For these he has been put upon the account of the Executrix for $35, and that account has been homo-logated without opposition.

Article C. C. 1106 (1098) provides that an inventory shall include an exact and particular description of all the titlep books, credits and other important papers found in the succession and a description and enumeration of the different bundles in which-the other papers have been put up by the officer, such as letters and others.

The Civil Code Article 1682 (1675) says:

"The expenses incurred by the executor for affixing the seals, for the inventory, for the accounts, and the other charges relative to his functions,shall be defrayed out of the Succession".

Under Article 3197 (3164) and 3252 (3219), these same expenses are secured by a privilege upon the property, movable and immovable, of the succession.

The Supreme Court has held in numerous cases that attorney^ fees were included in those expenses. 24 A. 162; 22 A.366; 1 R. 98; 13 A. 110; 1 A. 224; 29 A. 745; 11 A. 298; 14 A. 399; 33 A. 1377; 45 A. 1065; 49 A. 83, 1115; 36 A. 304; Succession of Heffner 49 A. 407; Fenner vs. Succession of Mc Cann 49 A. 600, 1176; Mc Ceely vs Same 50 A. 824 (838); 123 La. 498 (510); 138 La. 553;

In the Succession of Aiken, 144 La. 65, the Supreme Court said that the executor was not liable individually for attorney’s fees, and in the Succession of Baxter, 45 A. 1065, where the liquidator filed an account merely to have the amount of his fee adjudged, the Court held that his attorney's fees were a just charge against the succession.

Such oeing the law and the jurisprudence, the presump_ tion is, that when an executor engages the services of an attorney-at-lav; to settle a succession he does so in his official capacity and that the succession alone is liable for the payment of the fees of the attorney. In order to hold the Executor personally liable, the attorney must show one of two things: either that the Executor expressly bound himself to pay the attorneyyor that the services rendered had no connection with the Succession. The plaintiff does not allege any express agreement, and the services enumerated above are, as we have said, part of proceedings necessary in the settlement of allmsuccessions, But the plaintiff alleges that the principal object of opening the succession was to locate certain bonds which the defendant claimed as her property, and to subserve other inteeest of hers, and therefore she should pay the costs. But even so, it is established by an ancient and long line of decisions that however valuable the services of an attorney may have been to a party from a suit in which he represented other parties having similar interests, he cannot recover a fee from those whom he does not represent, and who did not employ him. 5 A. 165; 8 A. 51; 11 A. 596; 27 A. 411; 49 A. 890; 105 La. 593, 599; 1 La. Dig. p 774&54.

By a parity of reasoning an attorney employed by one in a representative capacity cannot hold his client individually liable because the services may have inured to his benefit personally. It is generally the case tnat the services rendered by an attorney in settling a succession do inure to the personal benefit of the Executor or Administrator. The law provides 'that in the selection of an Administrator to a succession, the Court should appoint parties in interest in the proportion of their interest; thus: the surviving partner in preference to the heir, the heir in preference to the surviving husband or wife, the surviving husband or wife in preference to the creditor, and the creditor in preference to one who is not. C. C. 1042 to 1046, 1121. It follows^therefore^that the law contemplates and favors the circumstance that parties provoking the opening and settlement of a succession, are interested^and do so with the ulterior motive of subserving their own interests, and that they employ attorneys with that objedt in view. Yet the law does not hoik them personally 1ia hie for the costs of settling the Sue cession, and no case has heen quoted, and we know of none, where they hare been so, held. The law is^that the succession alone is liable, and in order to hold the Executor personally liable an express agreement must be proven.

The other services of the plaintiff, independent of the succession proceedings,were few. His investigations into the causes of the death..of the deceased, and in the question of the liability of the Railway Company and of the Touro Infirmar^ might have been considered in that class. But for these he testifies he makes no charge. He valued all his services in connection with the policies of insurance at $13, and for this sum there was judgment in his favor. For all his services in the succession of Ezra Willard he was paid as he admits. We perceive no other services for which the plaintiff can claim from the defendant.

The judgment is therefore affirmed.

Judgment affirmed.

January 12th. 1920.


author: CAGE, J.

text:
    No. 7636
    COURT OF APPEAL PARISH OF ORLEANS.
    JOSEPH ASHER VS. ANTHONY J. ROSSI et al.
   CAGE, J.

O’ hay lóth 1887, the 'laintiff purchased a lot of ground frcnxiag on purgundy Street, in this city, in the Square bounuea by tnat Street, Flood, Daupnine ana Aljary Streets.

Unaer tne pavi..j lavo in force in 1510 the City orders.» Burgundy Street paved. The paving was done by Incitas Egí^n, con-traoior. Tne forced conxiouti^n due by the plaintiif aincu.ited to $70.33 ana the certificate thersior vine iasuea to "Thomas EgC^n, ?#hllney=Cenxral Trust and Savings Bank, AOoi^nee". T..a bank caused the certificate to be recorder in the ..Jo rt gage office, and under the paving laws, the plaintiff owed the amount, and the payment was secured by first lien and privilege on his property. 3y partid! .payments to tne Bank, he reduced the cldim to Col.33. Failing to make further payments the Ban:: brought suit ir. the First City Court of Hew Orleans, under the Ho. 75133 of its docket, and obtained Judgment, for the amount due, by default.

It issued a writ of fieri facias under which tne constable seised tne lot of ground, advertised it for sale, and adjudicated it to t-.e defendant, Rossi, for ti.e sum and price of $50.00.

ITo notice was given .Asher to appoint an appraiser. I'o appraiser was appointed by'tne Ban.-: or the Constable, and the sale was made without any appraisement -whatsoever,

The property is assie'Sd for ..'YCO.OO, Rossi's witness, Donaldson, swears the property is worth $450. U). Asner swears that he refused an offer of $1000.00 and that the value is $1100.00. We believe ¿añar1 a estimate is nearer ths-valuB than'-tnat of Donaldson, and that $900.00 is prolpably aoout what the property is woirth. Under a proper appraisement thereofre, the Constable could not have adjudicated it for lwss taan $600.00. Without any ap-praisement he adjudicated it to Rossi for $50.00.

This result loudly proclaims the wisdom of our law, which strifes with nullity such sales as this, and wnich directs the Courts to declare the nullity at the demand of any party in interest.

Asner brought this suit to have the nullity of the sale pornounced. The defense ls:

"That the plaintiff is estopped from bringing 3aid suit or from questioning in any way defendants title to »aid‘property for the reason, suosequent to the auqusition by the defendant of said property, the relation of landlord and tenant existed between defendant and plaintiff; that plaintiff acquefeced in the adjudication to defendant and recognized defendant as th's owner or the rests, property, upon which the title now questioned,/ and entered into a lease and rental of said property from defendant .

The judgment ir. the Instant court, w_3 ir. favor of plaintiff, Asher., and from it this appeal is prosecuted.

The evidence fails to convimee us that Aaher ever leased the property from Rossi. Ee is an uttely illiterate and simple minded old negro, a pensioner of the Civil y;ar, over Seventy-five years of age. Some one told him that Rossi had purchased his home. Ee understood that it had something to lo -with the paving claim, on which he had been making, partial payments, a.-.i we ire satisfied that all he was attempting to uo was to arrange with Eosbí ,for a continúanos of the indulgence the Ban.: had extended to him. The ^ldence, to our minds, wholly negatives an acquiescence, on his part, m the loss of Rio property, or any understanding of tie aefect in the sale, ana (^n intention, notwithstanding, to condona the defect, and ratify the relative nullity.

The facts do not bear out the defense,

But even^if we had found that, in ignorance of nia le_ai rights, the olu negro had leasea the property fren. Rossi, cur conclusion woula have beer, the same, as -.ve totally disagree with RoSsi on the law.

The textual provision of tr.e law bearing ci. this c ee is found ir. Art. 3441 of tne Civil Code, reading:-

"Those who possess, not for themselves, but in the hams of another, as farmers, depositories and others who acknowledge an owner, cannot acquire the legal possession, because, at the commence - msnt of their possession they had not the intention of possession for themselves, but for another."

The reason, the.justice and tho equity of the provision of the law is so clear and, oovious, that it requires no explanation The same rule runs thorugh all systems of law, and obtains in all the nations of which we have knowledge.

But it is not founded upon the doctrine of estoppel, nor is it founded upon a recognition of, and an acquiescence in, the title of the landlord, depositor etc, etc, beyond the time that the relation of landlord and tenant, depositor and depository, eto.. exists.

To extend it further, would bo to outrage our sense of justice and of right and wrong.

To illustrate our meaning let us take two supposition, oaeas.

A. finds in the secret darawer of an old desk wmoh he bought from a second-hand dealer a Swiss Watoh woth $3000.00, which was the property of the father of B. The father dies and B. as his sole heirs becomes the owner of the watoh. A deposits tha watoh with B, for safe kseping. After the watoh Is returned to A. B. discovers that the watoh belongs to him as heir of his father, and demands 'vs return.

To hoid that he could not recover the watch, because he ha* once been tfce depository thereof, would be to distort the plain text of Artí.3441 C. C. and would do violence to all our instinctive sense of morality and Justice,

But had he made the discovery while holding the watch as deposlxorv. and had he refused to return it. to. JLu a case would have been presented for the application of Art. 3441, ana the reason and philosophy underlying this Article.

Another supposition case.

B. looming for a locatiop for his grocery store, finds a suitaoie property in the possession of A. Ke leans* it for one year and moves in with his stock. Yihile arranging hie shelves, he finds behind a shelf the will of A's father, in which the property was bequeathed to him (B).

If he shodld seek to recover the property by petitory ac tion, during the existence of his years lease. he would be properly met by pleading tne provisions of Art. '_3-i4i.

But if he should wait until the expiration of his lease. should move out ands surrender the ísjs to A. and then bring his petitory action, there is nothing, in good morals, equity, Justice ot the provisions of Arti 3441 which would bar his recovery.

Rossi relies on the case of Joutt vb liortimsr, 29 Ann. 213, to support h-is defense.

A. reading of that authority shows that the «ations of Joust in resisting tne foreclosure of his creditor, !!rs. -ortlmer, were so baadless, gouadless, and immoral, as to excite tne indignation of tne Court, and it held that his offer to lease the premises, after the foreclosure sale, constituted a ratification of the sale.

Perhaps the disgust tha-fc Joust'* conduct excited in the breasts of the Court carried them ratr.er f<ur, Be this 'as it may, ÍM we find 11.atj^aubssquant oases the Court stated tne la.v of ratixi-oat ion, in consonance with our vie.va, and in language deed's iva'. of this C&S3.

In Breaux vs Silvia 3S An. 346, the Supreme Court said:-

"As si the character of the fact or act invoiced as a confirmation or ratification, the Jurisprudence of this State, ¿athered from the following authorities, it to the same effect, namely: that the acta from uhion'the ratification is sou¿nt to be deduced, ...ust evinfis suoh intention clearly and uneqi^ivocally,, none will be inferred where thfitCnct a can be otherwise explained.
( long list of authoritiea)"

'Is have seen that the mere fact of acceptir.j a lease doesTfcot es-top the leasee from asssrtinj title after his possession., as lessee has terminated. We have also seen that it oan operate as a bar, only when the circumstances under 'which the lease was made maxes the act of leasing amount to a ratification and confimmatioa <■ f the lessor's title.

It is axiomatic' that in order to ratify an invalid oontract or title , the person against whom ratification is pleaded must have had lcaowledge of the defect, and must have had the intention to ratify; and it is plain from the evidence that at the time Bfiehi claims that Asher leased, he (Asher) had no Lr-ov/led^e of the fatal flaw in Roesi’e title, c.nd could., therefore have had no intention to ratify it.

Without intent, there can be no crime committed and without intent there can be no oontract confected.

Other decisions of the Supreme Court foftify us in the conclusions vie have rsacned.

In Succession Of Iroxler 46 Ann. 748, the Court said:

"As between the parties to transáehions wh.se legality is fairly debatable, the doctrine of ratification should hot be too rigidly applied."

And ir. Succession of Eascum, 43 Ann. 1345.

"An act fro... which ratification is sought to be deoucea must evince such intention clearly and■ ttnqeui»*-ocaliy. Braeux vs Servie 39 246, 1 South 614. llor will ratification toe inferred where the, act can. toe otfcoisMi*» explained, and in Case of (teuton tfr* "PTMSty against whom the act is opposed must hatfe the benefit of the doubt. See also Suc. at Troxler 46 Ann 738, 15 South South. 153 xxx ^stopples are not faTOrtd. by the law."

In our opinion., both or. the facts and on the law, the Judgment ap-peialed froi„- is correct, and accoádingly it is AFFIRMED.

Defendants to pay costs in both Courts


text:
    NO. 7636.
    JOSEPH ASHER VS ANTHONY J. ROSSI, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   ORDER.

In this matter Juagas Claiborne ana Dlnlcelsplel hold themselves rsensad, ana It 1b orasred hy Judge St. Paul that Juagas Shinner ana Caga of tha CiTil Dletrlot Court for the Parish of Orleans he requested to assist in the hearing and datermination of this cause. It la further ordered that the Motion to Dismiss and the Merita he fixed at one tine at the next term of oourt.


author: CHAIMS 3*. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    N. O. TEXAS & MEXICO RAILWAY CO. Vs. LEHMAN, STERN & CO., LTD.
    No. 7638.
    January 12th, 1920.
   CHAIMS 3*. CLAIBORNE, JUDGE.

This is an appeal from a judgment confirming a default.

The suit was filed on Septemoer 26th, 1916 and citation was served on the 3ame day.

The plaintiff, the H. 0. Texas & Mexico "Railway11 Co., "alleged that on ¡¿arch 23th. 1912, there arrived in Hew Orleans, over the line of the New Orleans, Texas, & Mexico "Railroad" Company, consigned to S. Gumbel & Co., sixty-three bales of cotton marked L. A. R. K, and seventy-two bales marked D. U. IT; that a writ of attachment issued in the case of Lehman, Stern & Co. vs. E. Martin & Co. under which the above "Railroad" Company and the New Orleans Teiminal Company were made garnishees and in consequence of which said Railroad Companies held said cotton from March 28th. 1912 to April 22d. 1913; that, during said period, -storage charges accumulated on said cotton in favor of the N, 0. Texas & Mexico "Railroad" Company which, according to the tariff of said railroad conpanies, anounted to $531.90; thctt the attachment issued on the petition of Lehman, Stern Sc Co. was dissolved by the Supreme Court of tnis State, at their cost; that they have refused to pay the charges herein claimed; that the said Hew Orleans, Texas, and Mexico "Railroad" Company was placed in the hands of a Reoeiver in the suit entitled New York Trust Company vs. N. 0. Texas, and Mexico "Railroad" Company No. 14,706 of the United States District Court, and that in said proceedings the plaintiff herein, the New Orleans, Texas, and Mexico "Railway" Co., acquired all t£e assets and rights of the said "railroad" Co., including the claim iherein; and the N. 0. Texas and Mexico "Railway" Company prayed for judgment against Lehman, Stern &. Co. for $531.90.

Annexed to this petition are one set of bills for storage from March 28th. 1912 to April 24th. 1913 in favor for the "il. 0. T. & MH and against "S. Gumbel & Co.", one for

63 bales fbr 245.70

and the other for 72 bales for 280.80

$ 526.50

Another set is for same storage, for same time, against same S. Gumbel & Co., but in favor of "II. 0. T. & M. R. R.", and reads as follows:

$ 245.70 As paid

$ 248.22 Should be

& 2.52 Balance due

As paid $ 280.80

Should be $ 283.68

Balance due $ 2.88

These three amounts $526.50, plus $2.52, plus $2.88 make up the sum of plaintiff's claim $531.90.

The defendantSfailed to answer; default was taken against them on January 28th. 1918, and confirmed on April 22d, 1918. Defendants took a devolutive appeal.

In this Court the defendants have filed the plea of prescription of two and three years.

They have not pressed the prescription of two years^and they rely entirely upon that of three, years according to Article C. C. 3538 (3503). This article reads as follows:

"The following actions are prescribed by three years: xxx that on the accounts of merchants, whether selling for wholesale or retail; that on the accounts of retallen of provisions, and that of retailers of liquors who do no1 sell ardent spirits in less quantities than a quart. That on all other accounts".

We do not think that a claim for "storage arises from an "account". All the "accounts" which have been held oarred by the prescription of three years, as far as our investigation has gone, hadytheir origin in sales of movables or in advances by faotoriT^ Storage prises from a contract of deposit. "A deposit", says C. C. 2926 (2897) "in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind".

In th« 205 3?,ed. Rep.- 998, it -was held that a claim for "freight" was not an account and not prescribed by thrss years,

0.,C, 2929 (2900)
"The deposit is essentially gratuitous. If the person ■•vith whom the deposit is made receive a compensation, it is no longer a deposit, but a hiring (of services)". C.N. 1917; 4 Pothier p. 154 9; 15 Dalloz Rep. p 451 s 13.
C. C. 2675 (2645)
"To let out labor or industry is a contract by which one of the parties binds himself to do something for the other, in consideration of a certain price agreed on by them both".

There is no period specifically fixed by law for prescription as to a claim for compensation for deposit or storage. The wages of' workmen, laborers, and servants are prescribed by one year ( C. C. 3534 (3499)^and the salaries of overseers, clerks, secretaries, and others are prescribed by three years. C. C. 3538 (3503). Storage charges are not mentioned by either article. Those who rely upon prescription must point out the particular statute which specifically provides for prescription. It is not sufficient to plead prescription generally; the particular term of prescription must be pleaded. 21 A. 395, 669 (671); 30 A. 246; 15 La. 550, Prescription cannot be extended by analogy. In the case of Knoop vs. Blaffer 39 A. 23 (29), the Court said:

"Prescription is stricti .juris, and cannot be eked out by inference, nor extended from one cause to another by analogy" . / 3

Thus, Article C. C. 3534 (3499) prescribes by one year the actions of "innkeepers and such others, on account of lodging and board which they furnish". The Court held that the Article applied only to those who made it a ousiness of lodging and ooarding and not to those who, by exception, lodged and ooarded some person. Succession Nitch 22 A. 316; 33 A. 621; 11 Ct. App. 249.

Again, Article C. C. 3*536' (3501) prescribes by one year the action "for the delivery of merchandise, or other effects, shipped on board any kind of vessels” -, and Article C. C. 5540 (3505) prescribes by five years ’’actions on bills of exchange, notes payable *to order or bearer, exeept bank notes, those on all effects negotiable or transferable by indorsement or delivery”. Yet the Supreme Court held that the Article 3534 did not apply to “railroads” which were not "any kind of vessel", nor did Article 3540 apply to "marine bills of lading” which were not within the meaning of commercial credits intended oy the Article.

C. C. 3470 (3433)
"There are no other prescriptions than those essaolished by this Code and the statutes of this State now in force” See also State ex rel Szabary vs. Recorder 13 Ct. App. 292.

\7e conclude therefore that the preseription of three years does not apply to the claim sued on.

OR THE MERITS.

The defendants advance several defenses, one of which being sufficient, obviates the necessity and labor of examining the others. They maintain that the evidence introduced upon the confirmation of the default fails to make the plaintiff’s case reasonably certain and is not therefore sufficient to entitle them to a judgment.

The note of evidence on the confirmation of the default consists of the record in the suit of Lehman, Stern & Co. vs. Martin and the testimony of W. £. Fagot. In 1912, 1913, and 1914 he was Cotton 'Clerk for the New Orleans Terminal Company; the storage bills attached to the petition represent storage on cotton that -^as held "by us at the railroad"; he thinks S. Gumbel & Co. presented the bills of lading for the cotton when it was finally delivered; the cotton was held for the period stated in the bills and' they are correct.

According to the testimony of this witness, the cotton was held "by us", meaning his employer, the New Orleans Terminal Company; according to the bills for storage annexed to the petition, the cotton was held by the New Orleans Texas and Mexico Railroad; according to the petition, said cotton was held by both railroad companies; it is impossible to say with certainty who held the cotton and to whom the storage belongs. V/hichever end of this triple dilemma we adopt leaves the main tjuestion in doubt as to which company the storage was due. If we assume that it was earned by the IT, 0. Terminal Company, as stated by the witness, and by it and the N. 0, Texas and Mexico Railroad Company, as stated in the petition, then there is neither allegation nor proof that the N. 0. Terminal Company ever parted with its rights; if we assume that the bills are correct, and that the storage was due to the IT. 0. Texas and Mexico Bail-road alone, then two obstacles stand in plaintiffs way which it has not overcome. In the first place, there is no evidence that the latter railroad ever parted with its rights, or that plaintiffs acquired them; and, in the second place, it appears on the face of both of these oills that they have oeen paid in part, and that there remains due upon one only $2,52 and upon the other $2,88.

The ourden of proof was upon the plaintiffs to establish that they had acquired those bills. If they had not alleged it, their petition would have disclosed no cause of action. If it was essential for them to allege it, it was essential them to prove it. or they failed to make out their case. 1 A.117. Plaintiffs argue that they need not prove their capacity to sue, unless it is specially denied. This rule applies in cases where a general denial is filed, and where plaintiff sues in representative capacity conferred by law, and not where the capacity results from contract or involves the right of action itself. 2 H. D. 1152 s 5; 5 La. 405; 7 A. 621; 12 A. 735; 16 A. 247.

It has not application to the facts or the pleadings of tnis case. We are dealing with a judgment by default where every allegation of the petition is considered denied and must be proved, and with a title or right of action acquired by contract.

C. P. 312;
11 If two days, exclusive of Sundays and legal holidays, after the first judgment has been rendered, the defendant neither appear nor file his answer, definitive judgment will then be given for the plaintiff, provided he prove his demand. This proof is required in all cases, and when the demand is for a sum due on an open account then an affidavit of correctness thereof, before any competent officer, shall be prima facie proof".

The case of Collins vs. lio Donald 14 A. 735 was a suit against the maker of a note payable to the order of -Campbell; judgment was rendered by default; but plaintiff failed to prove the signature of Campbell, "through whose endorsement plaintiff claims ownership of the note"; held;

"Plaintiff has not proven his demand in this case until he has shown that he has acquired title to the note, which he has not done" .

See also 24 A/ 118; 9 A. 95; 12 R. 518; 15 La. 231;

8 R. 119; 6 R/ 4; 5 A. 642; 16 A. 247.

Plaintiff would be bound to make that proof under a general denial. 5 M. 361; 15 A. 257; 3 M. 647; 10 A. 460; 13 A. 457.

The facts in the case of Skipwith & Osborne vs Lea 16 A. 247 were as follows: The firm of Skipwith, Hazard & Co. became creditors of Lea for $3867; Hazard died, causing a dissolution of the firm; Skipwith & Osborne succeeded to the firm of Skipwith & Hazard, and sued Lea for the $3867; he filed a general denial; there was judgment for the plaintiffs from which Lea appealed. His contention was that "plaintiffs* were bound to prove under the general denial, that they had acquired by purchase or otherwise from the legal representatives of Hazard his interest in the partnership assets, or at least his interest in the debt claimed in this suit x x, on the death of Hazafd, tyis interest in the assets of the firm of Skipwith, Hazard & Co. descended to, and became vested in his heirs at law, and the plaintiffs, as surviving partners, could only have acquired that interest by transfer or assignment from the heirs, and thereby have acquired a right to sue for the debt in their own name, And whether they have succeeded to the interest of Hazard in the firm,is not a question of capacity to sue, but a question of title or right to the debt; and the general denial pleaded by the defendant imposed upon them the burden of proving the title or right to the debt, as alleged in their petition". There was judgment for defendant as in case of nonsuit.

We are therefore of opinion that the plaintiff-s have failed to prove their ownership of these claims or to establish their right of action. But inasmuch as the deficiency of evidence may have been the result of overconfidence or of press of business, and that the ends of justice would not be sub-served by a non-suit, we will remand the case, as we are authorized to do by C. P. 906. Also 1 H. D. 94 (c); 15 La. 231; 1 R. 17; 12 R. 518; 9 A. 95; 10 A. 270; 20 A. 106.

It is therefore ordered that the judgment herein be reversed and set aside and that this case be remanded for further trial according to law, the plaintiffe to pay the costs of appeal.

January 12th, 1920.