author: Honor John at. Paul.

text:
    No. 8134.
    JOSEPH SCHILKOFFSKY VS WIDOW EDWARD MARMILLON.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.

   opinion.

By his

Honor John at. Paul.

On April 23rd 1920 plaintiff sued out Executory Process on a promissory note dated January 14th 1914 and payable January 14th 1915. Defendant enjoined the seizure on the — ground that plaintiff had been placed in charge of the for the purpose of collecting the rents and paying himself; and that he had collected sufficient rents to discharge the note with interest fcc. The judgment below .was for defendant.

I.

In this court defendant filed a plea of prescription of five years, which of course is not well fiundedj since in fact, and according to her own allegations and evidence, plaintiff was put in charge of the property for the purpose of paying hitaolf; and this was a continious acknowledgment of the debt which interrupted prescription.

II.

The evidence shows that plaintiff was in exclusive charge of the property from January 1st 1914 to December 51st 1916, and had joint charge thereof with a Homestead Association from January 1st 1917 to June 30th 1918; that during the time he was in charge, he rendered defendant only a partial, slovenly ana inoorraot statement of her account; partial because it runs only through 19U5; slovenly because it no details as to -the source from which rents were actually A collected, and assigns no reasons for failure to collect rents due, hut not paid: incorrect, because it does not ite&lge the lump sums put a own as charges, in which lurap sums are included the interest on the notes for four successive years, which 8ame Interest he is now suing for.

On the whole- it is not such an account as an agent should render his principal; and therefore, whilst vve are not prepared to say that plaintiff has been paid in full (because we decline to mahe up that account) yet we think 'that defendant's injunction should Taz, perpetuated unless and until plaintiff shall have rendered her a full and correct account of his administration, and shall have established clearly the balance^if any, duo hy her on the note heroin sued upon. This can he done hy affirming the judgment of the trial court and reserving plaintiffs right to sue via ordinaria for 1Ae balance due-Aém-, if any. --- a, i aftac accounting to the defendant. 3ut we charge him with the cists. (,*ct of 1910)

December 12th, 1921.

!£he judgment appealed from Is therefore affirmed; reserving however, to the plaintiff the right to sue via ordinaria for suoh hálanos as may bo due him on the note herein sued upon after he shall have accounted ful|y and fairly to the defendant for the rents which ha has collected, or should have eolleoted, from her property. ' to pay oosts of both courts. '

Hew Orleans la*


source: Caselaw Access Project

author: Dinkelspiel; J.

license: Public Domain

text:
    NO. 8136
    COURT OF APPEAL PARISH OF ORLEANS.
    MRS. JAMES WITTENBERG versus CHARLES A. WALSDORF.

   Dinkelspiel; J.

This suit is based on t'ne following oontraot:

" New Orleans, April 8th,19191
Mrs. Janes Wittenberg, Real Estate Agent, City.
Dear Hadan:
I hereby appoint you as my agent and exclusively authorize Jou to sell the follov/ing described property: Ho. 1138 So. Carrollton Avenue, the store, oontents, building in rear, eto. for the price and sum of Twenty Two Thousand Dollars oash. Should you find a buyer or prove instrumental in finding one or should the above mentioned property be sold by me or any other person during the term of this authorization I will nervertheless pay you three per cent, commission on the purohase prioe for your services rendered. The commission being payable when agreement to purohase is signed. I require a oash deposit of ten per oent to bind the sale and therefore authorize you to oolleot same. This agreement may be cancelled bv giving slx-by days written notioe.
(Signed) Charles A. Walsdorf. Address 1132 So. Carrollton Ave. Phone Gal. 1111."

Alleging further that the olause said contract containing the special agreement "Should you find a buyer or prove instrumental in finding one or should the above property be sold by me or any other person during the time of it* this authorization, I will nevertheless pay you three per cent commission on the pur-ohase price for your services rendered.

That said contract or agreement has never been canoelleft and is still in foros and effeot and further alleging that under the terms of said oontraot petitioner is entitled to receive three per cent on the purohase price, the property having been sold for Thirty Thousand Dollars, the olaim is for Nine Hundred Dollars, for whioh judgment is prayed.

The answer of the defendant admits his signature to the oontraot in question but denies that plaintiff sold his property as she had agreed to do but on the contrary the property was sole through the instrumentality of Mr. Onorato, he was paid his oom-mlssion and rnerefore defendant is not hound hy the oontraot in question because he had oalled same off both through a phone message and through a letter written to plaintiff and whioh tas ao-oepted by her.

The defendant was oalled xxm as a witness for cross examination under the act and in his testimony admits the oontraot in question and arrangement to meet several purohasere, Mr. Kaufman and Mr. Dayries, at the office of plaintiff, who plaintiff ha<> seoured as prospective purchasers; that subsequent to the conversation whioh produced no effects defendant testifies that he phoned to plaintiff and amongst other things things said that Mr. Kaufman had told plaintiff that he defendant wanted entirely too much and then added "I-:m glad to know that I think my price is too low;"fcxac he admits further that he wrote a letter under whioh Mrs. Wittenberg's contract in question was signed and axm under whioh Mrs. Wittenberg acted;subsequently the defendant testifies that in the conversation hevlng revoked the contrs.ct through phone he was told to write a letter and he did write the letter and mailed it, oalling the oontraot off, he further testifies that nothing coming out of this oontraot in the shape of a sale and not having heard from Mrs. Wittenberg, exoept as testified to by him, he subsequently employed another real estate agent, Mr. Onorato, who pold this property to Mr. Dayries, for the prioe and 3um of Thirty Thousand Dollars and he paid Mr. Onorato his commission of Fifteen Hundred Dollars.

The plaintiff, Mrs. Wittenberg in her own behalf testifies first to the fact that she received a letter from defendant about the sale of drug store and plaoe of business and aot-lng upon this she oalled to see the defendant who signed the oon-traot in question, she testifies further that soon after she had the contrsot she heard that Mr. Dayries and Mr. Kaufman had purchased the site at the oorner of Broadway and St. Charles, she Immediately went to see Mr. Kaufman, offered him the drug store in -question and advanoed arguments to try and induoe him to purchase it, Mr. Kaufman told her "my partner Mr. Dayries is hunting for a drug store at Napoleon Avenue and St. Charles" and"I want you to meet my partner and give him partioulars of the drug store" she further testified substantially that she met Mr. Dayries and endeavored at the time and subsequently to sell him this establishment and introduoed these gentlemen to the defendant and got them to visit the drug store in reference to the purohase, these gentlemen then made an offer to rent the store and by the stook dollar for dollar, which offer defendant rejected, she further testifies that she saw 8M Mr. Freund, personally onoe and that she had a number of conversation with him over the phone, that he was a druggist,and she had no authority to advertise this property, he said he wanted everything done quietly and she positively testifies that she neither reoeived a phone message nor the letter sworn to by the defendant that he had mailed, calling her contract off; she is supported in this so far as the letter is oonoerned by her husband who is her agent and the only authority in opening her mails, she also substantially testifies that she used every endeavor subsequent to what is heretofore testified to to sell and she finally learned that defendant had sold and therefore she warned him that she would Claim her commission*

We have thus gone into the main testimony for plaintiff and defendant in this case and the contention of plaintiff is first that there is nothing in this record to sustain the defendant except the statement of defendant that he telephoned plaintiff to cancel the contract, to which she consent and subsequently wrote her a letter to the same effect.

It was held recently by o$tr Supreme Court in the case of MoWillisms vs. Reifch, which will be found in the So. Rep. pages 1913-1914, supplemental sheets, and in that case the Court laid down the doctrine:

"The lady clerk In defendant's offloe testified to the letter hairing been mailed, properly addressed, but as she says nothing of the postage having been prepaid, no presumption arises of the letter having been received. 33 C.J, 99j 33 A. & E. Eng. of L. 1355. Moreover plaintiff testifies that he opens hiB mail himself and the letter was not received. "

And those faots as stated by the Court in that oase are applicable in the oase quoted and are in the main applicable here.

The next contention argued and submitted by brief ixx by defendant's able counsel is that plaintiff Is not entitled to any commission beoause there is no provision in the contract as to the term of its duration and the law fixes this duration at a feasonable time and ten months is oertain more than a reasonably time, unless during that period the agent was making continuous offers and active efforts to affeot a sale and the burden of prooij is upon plaintiff to show what if any effort she made during that period and they site the oase of Lewis vs. Manson, 133 La. as enforcing that principle.

We have read that case very carefully and we are not in aooord with the views expressed by counsel.

A verbal agreement not carried out as in that oase the Court held under the circumstances there stated could not be enforced on the other one.

Our own Court in quite a number of oases has held the reverse of the proposition suggested and argued by counsel. In the oase of Freeman vs. Diboll, 11 Court of Appeals p. 199, where the Court held;

"The fact is conceded and in any event is established that the sale of the property was actually affeoted during the term /iiwi of the contraot of employment, but defendant contends that this sale was consummated without plaintiff's intervention or as-i 8lstanoe end that since he was not the proouring oause thereof, he is not entitled to the commission.
If, however, as plaintiff urges, the procuration conferred upon him the exclusive right or agenoy to sell the property during its term, this defense oennot avail, since in that event plaintiff would he entitled to hie commission, whether the sale was procured by himself., by the defendant or through another broker."

In the oaee of Stanley A. Hervey vs. Harry Hirsch, No. 7518, Court of Appeal, the syllabus reads:

"A contract by whioh an owner places his property for sale in the hands of a real estate agent end promises to pay a commission aocepted by the agent who receives the contract and aots upon it, ie not void as a nudum pactum.
A contract by vrtiich an owner binds himself to pay hie agent a commission on the sale of the property, even if the sale be effected by the owner himself, is not null and void for want of consideration."

The learned Judge of the Court aqua heard and saw these witnesses and he had muoh better opportunities from their appearance and from their testimony to Judge the merits of this oase, thei we have; he, in his Judgment decided this case in favor of plaintiff and we see no reason to change that decree.

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

«■Judgment Affirmed*


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge,
    SCHWARTZ & FERRY VS JOS. FERRAN, Appellant.
    No. 8137.
    November 28th, 1921.
   SCHWARTZ & FERRY VS JOS. FERRAN, Appellant.

No. 8137,

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit by^jgvendor against a purchaser for failure to accept delivery of^hing sold. The suit is based upon the following instrument marked Exhibit A:

Schwartz & Ferry,
High Grade Bakery Machinery - N. 0. U. S. A.
Order No.._date 7/5/1920
Sold to J. Ferran
P. 0. R. F. D. No. 2
Shipping Point - Jefferson Parish
Ship Via
'.Then - Terms: Draft B. L. Attached
100/100 Sax \7heat Bran 3.025 per hundred
Mail Delivery Ticket
Sigped Jos. Ferran
xxxxxxxxxxxxxxxxx
Subject Confirmation
E. S. Salesman".

The plaintiff averred that in pursuance of said instrument they delivered to the Louisiana Railway one hundred sacks of wheat bran for delivery to J. Ferran; that Ferran refused to accept said wheat bran, whereupon plaintiff sold it at a loss of $107.50 which they claim from the defendant, together with $10.50 storage.

The defendant admitted

"that he did sign an order for the purchase of 1001b. sacks of wheat bran, but that it was agreed and understood that said order could be filled for any part or portion thereof".

Upon the argument of the case, however, the defense was that the order which defendant signed was "Subject Confirmation"., and that before it was confirmed or accepted by the plaintiffs, defendant changed his mind on the subject and cancelled the order.

There was judgnent for the plaintiffs and defendant has appealed.

The case comes up on a statement of facts signed by the Judge which reads as follows:

"On or about July 5th, 1920 __Perry, a salesman for Schwartz & Perry, a copartnership composed of. Michel Schwartz and George L. Perry, grain dealers, residing and doing business in the City of New Orleans, called upon the defendant J. Perran at his dairy in Jefferson Parish, and solicited from him an order for 100-100 lbs. sacks of wheat bran at the price of $5,025 per 100 lbs. Joseph Perran signed the order calling for the above mentioned amount of bran « "Exhibit A". At the time this order was taken, Mr. Perran and a Mr. Heaton who was present during the entire transaction testifies that Mr. Perry told him that he could take under this order twenty sacks, forty sacks, or any number of sacks that he desired; that Schwartz & Perry would protect him in the event of a decline in the market. Mr. Ferry denied that he made any such statements. On or about the 18th. or 19th. of July 1920, Mr. Perry again called on Mr. Perran at which time Mr. Perran notified him that he would not need the bran and ordered cancelled the order of same x x x (illegible). Up to this time no.confirmation of said order was communicated to J. Perran nor was any evidence offered that same was confirmed nor any evidence that such was necessary. Mr. Perry comnunicated this cancellation to his com-peny who wrote s. letter to Mr. Ferran on July 20th, advising Mr. Ferran, that they, (Schwartz & Ferry) could not accent cancellation of the order and requested defendant to take delivery. (Exhibit "B"); On August 2d, 102(1 Schwartz & Ferry again wrote Ferran insisting he take delivery and make payment therefor. (Exhibit "0"); On August 12th, 1920, Schwartz & Ferry wrote Jos. Ferran insisting that he take the 100 sacks of bran and demanding payment of $302.50 (Exhibit "D”). To all of these letters Joseph Ferran made no reply. On September 2Sth, Schwartz & Ferry addressed a letter by registered mail notifying him that George L. Ferry would be oresent, with two witnesses at the Louisiana Kailway sheds, Cypress & Liberty Streets, there to offer and tender to the defendant the 100 sacks of wheat bran and therefore notified your'defendant Joseph Ferran that upon his failure to accept delivery of said bran, it would be sold to his account and that he would be liable for the loss sustained in said transaction. (Exhibit E. 1 - E. 2 - E.3). That on October 5th, George L. Ferry waited for Joseph Ferran to comply with tne notice, and upon defendant's failure to accept delivery of said wheat bran on that date, Schwartz & Ferry sold and delivered 50 sacks of wheat bran to Charles W_ at the price of $1.95 per 100 lb3. snd 50 sacks to Bruno Bros, at $1.95 per 100 lbs. (Exhibit F.& G)". That the difference in the sales price to Josenh Ferran and the sales price on October 5th. amounted to the sum of $107.50. Kr. Ferry testifying that he acted only in the capacity of salesman of Schwartz & Ferry; that he was not a member of that firm; that at the time he took the order for the said bran, he did not know vihether Schwartz & Ferry had 50 sacks, 100 sacks, or how many sacks of bran they had; that so far as he knew, there had never been any specific 100- sacks of bran designated as sold Joseph Ferran. Ho proof waa offered on trial as to the $10.50 storage alleged in plaintiff's petition to have been paid Louisiana Railway. Joseph ierran denied that the bran was sold for his account or that he was ever the owner of same". The letter marked Exhibit C is in the following words:
"Aug. 2d, 1920.
l*r. J. B. ierran
Dear Sir: We again invite your attention to your contract for Bran referred to in ours of the 20th. ult. We mailed you our order Ho. 898 for 100 sks. on July 5th according to sale note. The Railroad Company informs that you have not taken delivery and that the storage is accruing on these 100 sks. It is important that you take delivery at once, and send us remittance to cover, statement which we endose".

In the note of evidence' prepared by the Clerk we read the following:

J. ierran, defendant, being duly sworn by the Deputy Clerk of Court, on cross-examination as a witness called by the plaintiff, testified as follows:

"I am the defendant in this case. Being shown the order marked Exhibit A, and the return receipt card attached to the registered letter, he admits the signatures thereto.
I received the letters marked Exhibit B, C» D, and E. I did not present myself to the Railroad shed in compliance tiith the letter of September 29th".

Eugene Schwartz being sworn as a witness for the plaintiff, testified as follows:

"I ahí a salesman for Schwartz & Ferry. I sold to Kr. Ferrari the goods in controversy; at the time that he signed the order, there was no agreement that he could take any part of the one hundred sacks and it wa3 agreed at the time he signed the order that he was to take the hundred sacks of wheat bran. This is his sigiature. Some days after the giving of the order he requested the cancellation thereof, and I told him that I would see the house about it, but they refused to cancel*.

It is evident that the defense set up in the answer cannot avail the defendant as no parole testimony is admissible to contradict a written contract; and if it was,7is denied by Schwartz.

As to the defense made in argument, the pivotal question is, was the order of Ferran cancelled by him before it had been accepted by the plaintiff? C. 0. 1800, 1801. It appears to us that it was not. It was a matter of defense and the burden of proof was upon defendant to show it. In the first place he made no such defense in his pleadings, and in that manner, did not call upon plaintiffs to contradict his pleadings. When he received a letter advising him that the plaintiff had maileddiohim on July 5th, an order for .100 sacks of bran, he failed'T.a^deny that he had received the order,' although the plaintiffs allegad in their petition that they had delivered to the Louisiana Bailrny the 100 sacks to be delivered to him, he denied that allegation in his answer, but he did not swear to his answer; and when on the stand, as a witness, he admits having received all, the numerous letters. addressed to him by the plaintiffs^ the presumption is irresis.-tible that he also received the order for the 100 sacks on July 5th. In cases where the plaintiff has sent out drummers to solicit orders, he is practically the parties, proposing; the presumption is that he will accept the orders procured, and but slight evidence is required to prove that he has,, in fact,' accepted them/^Baudry Lac p 7/ % —-

We think with the District Judge that the defendant has failed to establish his defense, and that the plaintiff is entitled to a judgment.

But there is no evidence supporting the claim for storage $10.50. The judgment must therefore be reduced by that much. .But this item was not called to the attention of the District Judge.

It is therefore ordered that the judgment herein be reduced from One Hundred and Ei^iteen Dollars to One hundred and Seven 50-100 Dollars, and as thus amended that it be affirmed at the cost of defendant in both Courts.

Judgnent amended and affirmed. November 28th, 1921.


author: Dinkelspiel; J

text:
    NO. 8138
    COURT OF APPEAL PARISH OF ORLEANS
    ADA PLUMMER BAKER versus GRAND LODGE, KNIGHTS OF PYTHIAS.

   Dinkelspiel; J

The faots in this oase are substantially as follows:

Plaintiff, the widow of Henry Baker, sues the defendant, alleging that her husband was a member in good stunit-ing, of the Grand Lodge of the BMghts of Pythias, and that at his death she was entitled to the sum of Five Hundred Dollars, on acoount of the benefit - certificate issued to her husband by the defendant, in whioh at the death the amount stipulated was to be . paid her.

The answer of the defendant admits all the allegations of plaintiff's petition but asserts that she is not entitled under the certificate issued by the defendant to the sum of Five Hundred Dollars but avers that said benefit oertifloate is subjeot to the laws made end to be made by defendant institution and that under the amendment to the endowment clause of defendant's constitution, adopted on the 33rd day of April, 1919, the beneficiary under said benefit certificate is only entitled to the sum of Three Hundred Dollars, whioh sum was tendered plai plaintiff and whioh amount she refused to aooept.

And the issue, narrowed down, is simply: Did or not the defendant lodge under its authority, have the right to make the change which they did make, reducing the endowment from Five Hundred Dollars to Three Hundred Dollars?

There was introduced in evidence in this oase the constitution and by-laws of defendant order and at page 65 we find:

"It is stipulated that the certificate, the constitution and laws of the Grand Lodge, aforesaid, the application for membership, and medical examination signed by the applicant, snail constitute a contract between the Grand Lodge, aforesaid, and the member, and copies .of same, certified by the Grand Keeper of Reoorde and Seal of the Grand Lodge, aforesaid, or corresponding officer, shall be received In evidence o£ the terms and oondltions of the contract; and any changes, additions, amendments to the oharter or articles of the Grand Lodge, aforesaid, constitutions or laws duly made or enacted subsequent to the issuance of the. benefit certificate shall bind the member and! his beneficiaries, and shall govern and oontrol the contract in all respects the same as though such charges, additions and sda amendments had been made prior to, and were in force at the time of the application for membership. Provided, however, that the constitution and laws of the Grand Lodge, aforesaid, shall never be amended or in any way altered except in a regular or special meeting called for the purpose, which call shall be by proclamation issued from the offioe of the Grand Chancellor.”

We find on further examination of the consti-tuion and regulations of the Order that the Grand Chanoellor on Maroh 3rd, 1919 issued a proclamation in reference to sundry matters to be brought before the Grand Lodge, but nowhere does it 'appear from any resolution or any proclamation that there was to have been any action in reference to a ohange in the endowment. On the contrary, the proclamation is absolutely silent and the resolution subsequently e.dopted by the Grand Lodge wherein a ohangs reduoing the endowment from Five Hundred to Three Hundred Dollars, in our opinion was not legally established beoause no effort had been made and no order issued to show the intentions of the Grand Lodge to aot in this matter and to take away benefits and rights which they and doubtless other members had, was not justified by the resolution and aotions of the Grand Lodge in this matter.

It has been held time snd again that the law of an association constitutes an a contract between it and its members.

Butts vs. Society of the Young Men of Vidalia 6th Ct. of App. p. 127.

"A benefit certificate issued by a mutual aid association to one of its members is a oontraot which ca,n be ohanged only by the consent of both parties.

A olause in such a certificate, by which ths# the person tp whom it is issued agrees to comply with all the by-jaws of the association now existing or hereafter adopted, canpot be construed as authorizing the association to reduoe the amount stipulated in the certificate to be paid."

Russ et al vs. Supreme Council American Legion of Honor. 110 La. p. 587.

The deceased had been a member of defendant Lodge for more than five years and under its constitution at the end of the five years, if death ensued his heirs were entitled to the sum of Five Hundred Dollars. There is no dispute about that.

How without notice to the deceased the attempt made by proclamation of the Grand Chancellor and subsequent acts of the Grand Lodge itself, without specially notifying members of the order of the contemplated actions of changing and amending the endowment payments, was illegal, void and therefore of no effect.

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

«Judgment affirmed*


author: CHARLES F. CLAIBORNE, JUDGE,

text:
    Charles F. Claiborne, Judge.
    PETER V. YOUNG VS LA. CANNING CO.
    No. 8140
    December 12th, 1921.

   PETER Y. YOUNG YS. LA. CANNING CO.

Mo. 8140

CHARLES F. CLAIBORNE, JUDGE,

This ia a auit for drayage

The plaintiff alleged that five years ago he made a verbal contract for drayage aervicea with Iaadore Hechinger the agent of the defendant; that the rate of charges was to be five cents per 100 pounds with a minimum charge of one dollar a load for a single wagon, and of two dollars a load for a double wagon; that hS was to pay all ferryage charges and add them to the chargs for drayage services; that about July 10th, 1917, he agreed verbally with the defendants that the charge per hundred pounds should be increased to six cents, with a minimum charge of $1.20 for a singLe wagon loan and $2.40 for a double wagon load; that he has rendered drayage services and has received payments orl account in accordance with

•the itemized statements annexed to the petition which are a chronological compilation of charges entered by him from time to time in his day-book against the defendant for drayage services rendered at the rates and under the conditions mutually agreed upon, as above set forth, together with a statement of the sums paid from time to time by the defendant on account, which sums are duly credited*;

that said services are well worth the amount charged therefor; ani that there remains due the plaintff a balance of $1127.87 which the defendant refuses to pay.

The bills annexed consist of entries made day by day from March 2nd, 1917,tp August 24th, 1918, and monthly statements for all drayage and for tarty charges, .amounting to $2049.82, and a statement of all paymentawiliimthly. on account, from July 16th, 1917 to July 25th, 1918 amounting altogether to $921.95, leaving a balance dus of $1,127.87,

The defendants denied owing plaintiff anything; they denied the verbal contract alleged by the plaintiff, and averred that plaintiff having alleged a contract could not recover under a quantum meruit; they averred that they never agreed to the charges set forth in the bills, but accepted them and paid them, believing in error that they were correcti they admit that the ferry charges were properly charged to them, according to custom, but that the plaintiff charged thém with the full ferry rates, while he received a discount which he should have allowed, and

"through said erroneous charges respondent has overpaid the correct charges due by it to plaintiff based on a qnamtum meruit of more than any amount now possibly due by it. It shows that in each ferryage the plaintiff actually paid for a singLe team round trip 30 and 10-33 cents, while he charged 40 Cents and for a double team he paid for each round trip 40 cents, while he charged 80 cents. It shows that this difference, thus overpaid the plaintiff on its bills since it commenced to do dray-age for respondent more than exceeds any amount that could possibly be due him under a quantum meruit for the services rendered".

There was judgment for defendants as in case of nonsuit, and plaintiff has appealed.

It will thus be seen that the defendants do not deny the correctness of the amount of drayage charged to them by the plaintiff in his several bills; nor do they deny the correctness of the part payments allowed by the plaintiff. The issue is narrowed down to the correctness of the price charged by the plaintiff, M to the correctness of the ferryage charges.

On motion of the defendants the plaintiff tos ordered to produce in court all his

"commercial books and papers showing the amount of hauling done by him for the defendant, and the charges paid for ferryage on same from February 1914 up to and inclusive of the time when plaintiff ceased to haul for defendant".

Opon the production of these books in Court the defendants asked

"that Mr. Peres, a public accountant, be permitted to investigate these books and make a report to the Court of the amount of ferry charges which have been paid out by plaintiff and also to separate the double from the singLe team charges, to report the result back to the Court, the fees for the labor to be taxed as costs to be paid by the losing party".

Whereupon

"the Court appointed Mr. E. S. Peres, public accountant, as expert to examine thsae books and make a report to the Court".

According to the Auditor's report, the books of the plaintiff show that the defendants are indebted to him in the sum of $1120.11. But these books show that the plaintiff charged for ferryage the full price of 40 cents for single teams and 80 cents for double teams.

The Secretary of the Canal Street Ferry Company testified that the cash fare for a singLe team during the years 1914 to 1918 was as follows:

"Cash fare 20 cents each way. We had ferry tickets,^two sets and what was $1, and the other set 33 for $5. That makes it 16 and 2-3 for each dollars set, and 15.33 for the five dollar set.- Charges during that period for double teams were 40 cents each way; there was no rebate for double teams; tickets or no tickets, it made no difference, it was 40 cents each way".

The accountant reports:

"The total number of singLe dray loads amounted to 843 loads, representing a saving of .06-2/3 a load or $56.20 if ferry tickets had been purchased".

The plaintiff testified that he had a verbal contract with the defendants to do their hauling at the rates charged by him; that he made the contract in 1914 with Mr. Bentz, representing the defendants; when Mr. Hessinger got in with the defendants they took the hauling away from him and turned it over to the Diamond Transfer Company; then they came back to him and Mr. Hessinger and Mr. Bentz came to him at his office and made a verbal agreement with him; Mr. Bentz has since died; the contract for the increased price was nade oyer the phonej

Mr. He s singarais/the General Manager of defendant Company; he succeeded Mr. Bent* who died three years ago; he never made any contract with the plaintiff; during the time Mr. Bentz had charge he paid no attention to that part of the business; he never had any phone conversation with the plaintiff ; at various times he made payments to the plaintiff for hauling; the payments were made to the plaintiff on the basis of the bills 'rendered; generally the bills were paid as presented.

It is evident that Mr. Hessinger did not mean the full import of his testimony, for he certainly had a contract with the plaintiff to do the hauling for the Company. Every time the defendants requested the plaintiff to do some hauling for them, and plaintifi agreed to do it, there was a contract of hauling between them. All Mr. Hessinger could mean was that he had made no contract or agreement for the "price" of the hauling. He may be correct; and yet there mi^it be a contract made by Bent*, at one time manager for the defendants, as wwom to by the plaintiff. Thus there is no conflict between the testimony of these two witnesses.

Plaintiff's testimony is corroborated by all the transactions between the plaintiff and the defendants. The defendants received monthly bills from the plaintiff and made payments in accordance therewith. The Court will not presume that the defendants made monthly payments of detailed bills for five consecutive years without knowing at what rate the hauling was being done; when knowledge of the rate charge once reached them, the continuance of that rate for all future hauling constituted an implied contract between the parties; at any rate it corroborated the testimony of the plaintiff as to the rate originally agreed upon. Nor can we presume that when the defendants originally employed the plaintiff, they did not agree upon a rate. We conclude that the amount of hauling and the contract for the price thereof have been established, and that there is a balance due the plaintiff of $1120.11. 37 A. 871; 123 La. ]

But the plaintiff must allow the rebates which he re- / ceived or should have received from the Perry Company in the shape of tickets, fixed by the accountant at $56.20. 16 A. 239; 18 La. 99; C. C. 3005 144 La. 818. Story Agency 192, 207, 214.

It is therefore ordered, adjudge, and decreed that the judgement appealed from be reversed ans set aside and theLouisiana Canning Company be condemned to pay to the plaintiff the sum of One thousand and sixty three 91/100 dollars with five per cent per annum interest from November 29th, 1918 till paid and all costs of suit.

Décember 12th, 1921


author: Honor John St. Paul.

text:
    NO. 8143.
    JOHN FLORES, ET ALS VS STEEG PRINTING & PUB CO.
    STATE Of LOUISIANA. COURT Of APPEAL PARISH OF ORLEANS.

   OPIHIQH.

By his

Honor John St. Paul.

In December 1915 plaintiff's minor son was killed whilst in defendant's employ and in discharge of his duties. Thereupon plaintiffs brought their action as if for damages arising ex delicto. The "Smployers1 laibility Act” (Ho £0 of 1914) was ignored fcu bbth sides, as well as by the court, and the case was tried and disposed of as an action based on a tort. The trial judge gave judgment for defendant, and •n appeal this was affirmed. (142 La 1068)

Thereafter plaintiffs, moaning to bring this suit under the Employers Liability Aot, aforesaid, attempted to do so by a so-called "supplemental" petition filed in the same proceedings. Whereupon defendant moved to "strike from the record" the alleged supplemental petition on the ground "Causa eat finita".

How it is quite immaterial what names the parties give to their pleadings; these are, and alwayB will be, Just what their nature shows them to be, and that may be determined only by observing the purpose intended by the pleader»

Hence it is olear that the so-called "supplemental" petition is in fact and in law an original '.on, since plaintiffs are now asking a new and different relief and upon a different oauae of action; towlt, compensation of damages, arising ex contracta and not ex delioto.

December 12th, 1921.

In like manner the motion to "Strike out* was simply an exception to the manner and place of proceeding; which exception the trial judge properly sustained "without prejudice to any of the rights of defendants in rule (plaintiffs in suit) tonproooed in another action in accordance with law."

The judgment appealed from is therefore affirmed.

Hew Orleans La,


author: Honor John St, Paul.

text:
    NO. 8150
    JACOBS CANDY CO VS DENNIS SHEEN TRANSFER CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS

   ossgxov*

By his

Honor John St, Paul.

Shis ease oomaa before os on appeal from a Judgment maintaining an exception of no cause of action. She petition is lengthy, hut recites in substance that defendant, as "Toyman for plaintiff, hauled oertain barrels of shelled nuts, but refused to deliver them unless plaintiff would gire"»noloa*" receipt for them; which plaintiff refused to do, because one of said barrels had troten open and some.of its contents had been damaged, fh&t notwithstanding repeated demands, and warnings that said nuts would deteriorate if not delivered at onoe, said defendants delayed nine days before attempting to mate delivery anew. Ihat thereupon plaintiff found the nuts alrapdy badly deteriorated, and insisted on the presence of some one in authority from defendant to assist in the examination; and whan this oould hot be obtained, plaintiff, plaintiff refused to aooept the shipment. It is not alleged that defendant then insisted on a olea* reoeipt, nor is the contrary alliggd or clearly to be inferred. Ihat defendant waited again 20 days before onoe more tendering delivery, and this time sent its duly authorised representative, in whose presence the whole shipment was then examined and found unfit for use. Share are some allegations, about a demand on the part of plaintiff that defendant should agree to pay the oost of separating the good from the had out of the shipment; but this is not made clear.

On the whole, however, we do not think that this case should go off on an exception. Certainly defendant was originally in the wrong, and it is equally certain that some damage occurred in the nine days between the first and second attempt at delivery. It may be that, after that plaintiff was insistent upon things on whioh it had no right to insist, and this contributed to the further damages suffered thereafter; but we oannot determine whether those demands were or were not reasonable until we have heard the evidence. And whether or not it will be possible to seperate the damage whioh oqcurrod before plaintiff came to be at fault (if it so oarae) oan again be determined only after looting into the evidence.

It is therefore by no means certain that plaintiff oan recover nothing at all; and such being the cash the Exception of IIo Cause of Action must be overruled, for an exception of no causa of action should not be sustained unless it is clear that plaintiff can recover nothing under Ilia olaira; it the olaim, ha -only doubtful the 910 apt Ion should he overrule'! and the oaae heard on the marlta., Orleans Appeals; 119 la 106; 122 la 831-835.

December 12th, 1921.

The judgment appealed from is therefore reversed; and the exception of no oausa of action is overruled and the case remanded for trial on the merits aocording to law; defendant to pay the oosts of this appeal and the other oosts to await final Judgment.

Hew Orleans la,


author: CHARLES E. CLAIBORNE, JUDGE.

text:
    Charlo? I?. Claiborne, Judge.
    UNIOLA REAL ESTATE CO. VS LEVY LATTRESS CO., INC.
    No. 8151
    May 22d 1922.
   UNIOLA REAL ESTATE'CO. VS LEVY KATTHESS CO., INC

Ho. 8151

CHARLES E. CLAIBORNE, JUDGE.

Plaintiff seeks to recover from the defendant, his lessee, the amount of an increased premium of fire insurance which he had to pay owing to the business carried on by the defendant in the lease premises.

The plaintiff alleged that he leaned to the defendant the premises No. S18r22 St. Louis Street for the erice of $75 per month according to a written lease annexed; that without petitioner's consent the defendant put certain materials in said premises which have increased the rate of insurance; that the building had been rated when used for the manufacture df cork mattresses by fomer occupants at $1.35 per thousand, and that the rate was raised by the Insurance Company to $2.431 per thousand by reason of the materials put into the premises by the defendant, making a difference of $101.58 which petitioner paid; that the act of the defendant in bringing into the building such materials was a violation of the lease, causing petitioner damage to the amount of $101.58 which is justly due by defendant.

The defendant denied any indebtedness. It averred that at the time the lease was made it was conducting a mattress factory at No. 1117 Poeyfarre Street, as was well known by plaintiff's agent, and that it leased the building i!o.918-22 St. Louis Street to

"conduct therein a mattress factory similar to the one which it was conducting on Poeyfarre Street; that the obligation assumed by it not to put anything in the leased premises which would increase the rate of insurance clearly meant not to put anything therein other than those things which are necessary for use in a well conducted mattress factory which would increase the rate of insurance, and that it has not at any time placed in said building anything of any kind, nature or description whatsoever other than is used by mattress manufacturers in the conduct of their business";

it further averred that it had

"not used the building at any time for any other,than that for which it was leased".
There was judgment for defendant, and plaintiff has appealed. The parts of the lease necessary to the decision of this

case are as follows:

"Emilien Perrin Agt. Unióla Heal Estate Co. of New Orleans, La., hereby leases to "Levy Uatttess Company, Inc." the premises known as No. 918-22 St. Louis Street x x x The lessee is further obligated and bound x x x x to put noticing therein which would forfeit the insurance or increase the rate thereof; x x x not use the premises for any other purpose than herein contemplated x x x should leasee in any way violate any condition of this lease, lessor hereby expressly reserves the right of cancelling said lease without putting lessee in default x x x . Lessee is granted the privilege of using the said building from August 1st, 1918 to September 30th, 1918 free of rent, anl in return will allow lessor the use of lessee's present building 1117 Poeyfarre Street for the period named provided the owner will give nerruission to sublease the same; any rental received for lessee's premises 1117 Poeyfarre Street to be the property of lessor, it being understood that pcmission for sublease is obtained from the owner of said building".

The testimony establishes the following facts:

Prior to the date of the lease involved in this case the defendant had been engaged in the manufacture of mattresses at Ho.1117 Poeyfarre Street to the knowledge of the plaintiff; Leon Jacobs, real estate agent, procured the defendant as the lessee for the plaintiff; the nature of the business carried on by defendant was fully known to him; Emeline Perrin, the President of the plaintiff company called on Iir. Levy with Mr. Jacobs at Ho. 1117 Poey-farre Street on the day they agreed to close the lease, but hd did not inspect the premises or the factory; he thought it was felt; he had no idea it was felt or moss.

Hr. Jacobs says;

"The remark came up by Hr. Sam Levy as to the amount of mattresses they were making; we were both surprised at the amount, and Ur. Sam Levy offered to take us through, but we were stopped by the fact that they were just about to clean up and this was about their clesing time in the evening; it must have been about 5 o'clock".

After the lease, the defendant carried on, at 918 St.Louis Street, exactly the same business that he liad conducted on Poey-farre Street-; no changes at all were made.

Mr. Perrin and Mr. Jacobs both testify that they leasedtifae St. Louis property to the defendant for the ourpose of maintaining a mattress manufactory; but Perrin was not aware of the material employed to make the mattresses.

The building on St. Louis Street had previously been oocupied by the "Crescent Cork Works*; they subleased ft for the manufacture of cork mattresses from the shavings of corks. It never.occured to Mr. Perrin at any time that the Levy Mattress Co. was going to operate a cork works; he

"knew better than that".

There is no evidence that the defendant was aware of the business which had been carried on in the building on St.Louis Street previous to their occupancy of it.

It thus appears conclusively by the testimony of the president of defendant company, and of their agent who procured the defendant as tenant, that they leased the St. Louis property to be used as a "mattress factory"; not restricted to mattresses made of cork exclusively, but for all kind's of mattresses made of all kinds of materials genurally of which mattress are made without any restriction as to material, whether that material was cork, corn shucks, wool, cotton, hair, felt, excelsior, or any other material. If the lessor had intended to restrict the lessee to the manufacture of mattresses to be made of cork, he should have so stated. Although it might be that the plaintiff knew that some mattresses were made of cork from the faot that his former tenant had manufactured such mattresses, there is no testimony that defendant had that knowledge or Irad ever made mattresses of cork shavings. Q -

The lessor, like the vendor, must explain himself clearly respecting the extent of his obligations; any obsoutre or ambiguous clause is construed against him. C. C. 2474 (2449) Rosenthal vs Prustman, No. 8392 Ct. App.

"There is a familiar oanon of construction that all oontraots, including leases of every description, shall be most strongly construed against the grantor, and that if there be any doubt or uncertainty as to the meaning of any such lease it shall be construed most strongly in favor of the grantee". 24 Cyc 915 (c); C. C. 1957 (1952). 0. 0, 1858 (1953) "But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted whether he be obligor or obligee".

Any obsoure or ambiguous clause is construed against the lessor. Rosenthal vs Prutsman, No. 8392 Ct. App.

"Forfeiture of contracts or leases are not encouraged, by the Courts, and will be enforced only when the right thereto is clear beyond a doubt both of fact and of law". Scibetta vs Marciante, No. 7974 Ct. App.

In the case of Lic Neil vs Dr. J. H. Knapp, 18 A. 701, there was nothing in the lease which indicated that the property leased was to be used for any purpose, certainly not for a millinery store; on the contrary, the defendant vías a dentist and the presumption would have been that, the property was to be used for his professional purposes. But the"dentist" sublet a part of the property to ilrs. Babett who moved into the house a stock of millinery goods. It was not in the contemplation of the oarties that 3uch U36 was to be made of the property, and inasmuch as such use caused the cancellation of the fire insurance policy, it constituted a violation of the lease.

But the decision v/ould have been otherwise had the plaintiff leased a store to the "Babett Millinery Co." with the knowledge that at the moment of signing the lease the Babett liillinery Co. was then engaged in running a millinery store, in another building.

Article C. C. 2711 (2681) is of assistance in deciding this case. It reads as follows:

"If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease".

But we have come to the conclusion that the defendant committed no violation of the lease by making mattresses with excelsior, and that therefore the plaintiff is without cause of action on that ground. The burden of proof was upon the plaintiff to show a olear case of violation of the lease. The plaintiff places his whole relíanos upon the case of King vs Murphy Varnish Co. 74 N. E. 290 (188 Mass. 66). The lease in that case provided that

"No aot or thing shall he done upon the said premises which may make void or voidable any insurance of said premises or building against fire, or may render any increased or extra premium payable for such insurance".

The plaintiff sued the defendant in damages because while

"engaged in the varnish business, it put into the premises certain tanks for the storage of varnish by reason of which the insurance rates aere increased. There was judgment for plaintiff.

But in that case the opinion shows that the lessor was ignorant of the uses to winch the property was to be put, as is evidenced the the following languages The Court said:

"But it is to be observed, if material, that though the plaintiff knew that the defendant was engaged in the vanish business, there is nothing to show that either he or his son, through whom the negotiations for the lease were oarried on, knew the extent of the defendant's business, or how it was conducted, or that the defendant stored varnish in large tanks on the premises occupied by it. To give the covenant therefore, the construction contended for by the defendant, would be going beyond what the lessor could be held to lave reasonably contemplated. But we think that the covenant cannot properly be construed, as the defendant contends. There is no provision in the lease, express or implied, as to the nature of the business to be oarried on upon the premises."

As a confirmation of our interpretation of that opinion, we reproduce a case quoted in that very ease decided by the same Court a few years before. In Brown vs Miles, 43 N. E. 90 (Mass.) the plaintiff sought to enjoin the defendant from causing a nui-sanee on the leased premises. The Court said:

"Assuming further in favor of the plaintiff, that the nuisance is due, not to the effects of the tide, but to the effects of the business carried on by the defendants, we are of opinion that the plaintiffs are not entitled to have the defendants enjoined from permitting or continuing a nuisance upon the premises. The plaintiffs made the lease with full knowledge of the defendant's business, which was then being carried on in the same premises,and with full knowledge of the uses to which the premises would continue to be put, and the actual use of the premises is found to be no worse than is necessarily incident to the business which was contemplated and expected when the lease was made x x x There is a covenant that they will not make, nor allow to be made, any unlawful, improper, or offensive use thereof. But this ought not to entitle the plaintiffs to stop the use of the building for the very business in which both parties expected it to be used when the lease was i.ade".

This opinion is in accord with our views of the lav; governing the case under consideration.

But the plaintiff contends that independently of the ques tion of violation of the- lease, he &s entitled to recover the increased amount of the premium by virtue of the olause trhich provides that the lessee shall

"put nothing therein (in the leased premises) which would forfeit the insurance or increase the rate thereof".

But we think that this clause does not amount to an assumption of payment by the defendant of tho increased premium of insurance resulting from the presence in,the building of the material used by the defendant in making mattresses. It means that the lessee shall not put into the building any other thing or material than that v/hioh was necessary for the uses for which the property was leased, within the contemjSation of both parties; and that if he did so, he would have to pay the increased premium. Any other construction would obligate a lessee to pay, not only the rent for which he bound himself, but also the increased premium of insurance which his use of the premises called for, but which he did not assume in express terms. There is no eiidBnce that the defendant put into the building any other material than those U3ed by mattress manufacturers.

"He who claims the execution of an obligation must prove it". C. C. 2232 (2229).

In the absence of an express proraise to pay the increased premium defendant cannot be held tt^a^Jt.

It is therefore ordered the judament annealed from be ■ A- ' affirmed at the costs of plaintiff in both Courts.

Judgment affirmed.

May 22d 1922.


text:
    NO. 8154
    COURT OF APPEAL PARISH OF ORLEANS.
    SUCCESSION OF MRS. MARIE BRAUGHE

   Dinkelspiel; J.

This is a ruis by un adjudicates of property for the return of rent oolleoted by the former owners.

The fscts are as follows:

Preparty w.-.s v.ivsriieed for sale in this Suooession under the following terms ¿ni conditions fixed by the ¡judgment of Court:

"One third or more cash; belanos, if sony, in squv.l installments at one or two yeers, or st one, two end thr-.-e years, all at purohasars option; tho credit portion, if any, to be represented by notes of tho puroh'.ser, bearing interest payable annually at the rate of seven per cent per annum from date of adjudication until final payment; said notes to be secured by vendor's lien and privilege and special mortgage on the property soldi, and the 6.013 of sals to oonuain all the usual security clauses; the purchasers to pay over end hoove the amount of-adjudication the taxes of 1S30 and the costs of sale, including revenue stamps and oertificates; purchasers tv be entitled to rents only from the final signing of the aot3 of sale."

The auction sale took plaoe on August 5th, 19.30; Mrs. Esther Gordon became the adjudicates of e. certain property; on November G3nd, 19S0, she filed the follcviin'g rule:

"On motion of A. D. Danaiger, Attorney for Mrs. Esther Gordon, and on suggesting to the Court, that at the publlo sale herein aiade on August 5th, 1930 mover became the adjudi catee of the property at the corner of Dryr-dss and Clio Streets; that on August 36th, 1930j mover's counsel reported to the representatives of this Suooession the approval of the title eubjeot to oertain requirements; that it took the representatives of the within suo-oession until November 15th, 1930 to oomply with the requirements and to tender an aot of sale to your mover, and that mover promptly passed the aot of sale on that date; on further showing to the Court that under the terms of sale, the deferred portion of, the purchase prioe wad to bear interest from the date of adjudication and the puroha-ser was only to be entitled to -the rents thereof from the date of passing the act of sale, and that the said act of sale was passed without prejudice to the rights of any of the parties hereto with reference to Mis controversy presented by thi3 rule; 'that mover has mole application for either s refund of the interest from August 36th, 1930, to Kovembsr 15th, 1330, or for the rents derived from said property during that period for the reason tU. t the said mover had announced her willingness since Aurmot 26th to pas- the a.ct of sale and that the delay in perfecting the title of the vendors should not be charged to mover in rule v/ho should not be mads to pay therefor, It is ordered by the Court that Mrs. Marguerite B. Clapp, Administratrix of said Succession do show C0.U3S on Friday, November 36th, 1920, at eleven o'clock A, M. why inter-.vt in the said deferred payment amounting to §16,636.65, should not be refunded to mover from August 36th, 1830 to aovembor 15th, 1930, or in the alterne ti ve, why the rents derived from the said property during that period should not be paid to mover in rule.11

To thi3 rule the following return vns made:

"And now into thi3 Honorable Court through undersigned counsel comes Mrs. 11. 3. Clapp, and the other heirs of the deceased as 3j,-.own by proceedings herein s,ni excepts tc chs rule of lire. Esther Gordon on the following grounds:
"Thst Mrs. Esther Gordon w»s not an c.ljudicatee of any of this property herein sold to effect a pfrtition, .but eub'eo-quentily escame the transferee of one of the adjudicatses, ?jnd this transfer was not made until November 35th, when the act of sale was signed and it wee not until that moment C. t Mrs. Gordon vn..s in a position to take title tc the property;

And s .-ooarers further except on the grounl that said rule discloses r.o cause cf action;

And with full reservation of said exceptions for «a-e.or thereto soy:

That under the terms of the judgment of partition, the advertisement of 3&le, and the adjudications as shown by the pro-ces verbal of sale herein on file, all notes given by the purchasers bore interest from the date of the adjudications, and the purchasers were not entitled to rents until the passing of the aots of se-le, and these two requirements were part of the oonsideratior; of the purchase and the Court is without power to change the judgment or terms of sale, even if plaintiff in rule is in a positior to make suoh olaija whioh is denied as set forth in exception No.l herein;

"That at no time previous to the passing of the sale did plaintiff in rule announce that she was the adjudioatee or that she was rcsdy so take the property, and these aupearers and the auctioneer who signed the act of sale never heard of her until the time came to pass the act of sale.
Wherefore ss±d respondents pray that said rule may be discharged with oosts, and for general relief."

This rule came on for trial on January 14th, 1931, when the following proceedings took plaoe:

Hr. D&nzigsr: I offer in evidence a letter written by Hr. Hart, addressed to me, of date November 13th, 1230.
ur. Hart: I objeot on the ground that the rule discloses no cause of aoticn, and no evidence is admissible.
The Court: (after argument by counsel) The objection is sustained on the ground that tne pleadings set forth no oause of action.
Hr. Denziger: To whioh ruling of the Court, counsel for plaintiff in rule exoepts, and reserves this-note in lieu of a formal bill of exceptions, requesting permission of the Court to attach to 3aid bill the letter in question. I would cl30 ask youfc 'honor to he..-r me in connection with my bill of exceptions, as to the circumstances under whioh this aot pas passed.
Ths Court! X will permit you to reserve your bill of ex-o.e.jtlone and will permit you to attaoh to it the dooument in question as ?. part thereof, but X will not hear any testimony."

Thereupon the following judgment was rendered!

"When after hearing pleadings, end arguments of oounsel on exoeptions to said rule filed by defendants on November 30th, 1920, and the Court, for reasons orally assigned, being of the opinion that said exoeptions to said rule is well founded, It is ordered that 3aid exoeptions be maintained and said rule dismisssai at mover's oosts."

After an ineffectual application for a new trial, the plaintiff Mrs. Gordon, has taken this appeal.

The plaintiff in rule bases her right to relief upon the following Artiole of the Civil Code;

Art-. 3610 (358?) If the objeot adjudged is an immovable for whioh the law requires that the aot of sale shall be passed in writing, ths purchaser may retain the prioe, and the seller the possession of the thing, until the aot be passed. This aot Ought to be passed within twenty four hours after the adjudication if one of the parties require itj he who oooasaions a further delay is responsible to the other feu in damages."

We are of the opinion that the plaintiff's rule did disclose a oause of aotion, under the Artiole quoted. If the sale took plaoe on August 5th, and the aot was passed on November 15th 1930, a period exo-.eding three months, it is evident that the purohaser suffered a damage represented by the rent due for that period, provided that the delay was oaused by the fault of the Succession representatives, and that it oould have been avoided by reasonable dlligenoe on their part,- and was not oaused by the ordinary and necessary oerclfioatea, dooumant3 and proofs preoesding aots of sals, nor by the requirements of the purohaser. For that purpose evidence should have been heard to show that the vendors were not at fault or that the purohaser Vías at fault, or, in the language of the Artiole, to establish who it was who oooassioned the further and avoidable delay in order to make him i3sp bear the demages oaused by the delay. When the condition of sale provides that the purohaser shall be entitled to rents only from and after the signing of the aot of sale, the conditions means that the purohaser shall not be entitled to rents during the ordinary delays neoessary and inoidental to the passage and signing of the aot of sale; the Courts oannot be ashed to interpret suoh a olaim as meaning that the vendors have the right at their pleasure to procrastinate unnecessarily the passing of the aot, and to appropriate the rents, to the injury of the pur-ohaser.

It is therefore ordered, that the judgment herein be reversed and set aside, that the exceptions of no cause of aotioi be dismissed, and that this rule be reinstated to be tried and determined upon any other issues and in aaoordanoe with the views hereinabove expressed, the oosts of this appeal to be paid by the heirs of Mrs. Braughn end the oosts of the Distriot Oo.urt to await the final judgment herein.

-Exception overruled and oa3e remanded.-


author: Dinkelspiel; J,

text:
      No. 8155
    COURT OF APPEAL PARISH OF ORLEANS.
    MRS. FANNIE FLEMMING et als versus MRS. JOSEPHINE JONES, et als.
   Dinkelspiel; J,

This litigation arises'on the following facts:

The petition of Mrs. Fannie Jones, wife of David Flemming, James Dodds, Susan MoLane, wife of Charles Mlllian and Mrs. Fs.nnie MoLane wife of Wilson Davids, shows that your petitioners are the 3ole and only saxtxtsg surviving heirs of the Ms.ry Blakeley, wife of late/Ms.rshall Williams, who died in this oity on or about April 37th, 1910, intestate, and alleging further that Mery Blakeley, wife of Marshall Williams, left oertain property hereinafter described and whloh was acquired during and belcn&dd to the flommuni. ty of acquets and gains existing between said deoedant and her husband Marshe-11 Williams, who died September 19th, 1917, and whose succession has b?en opened on the docket of this Honorable Court, end alleging further that at the death cf the said Mary Blakeley, vife of Ms.rhsS.ll Williams, her community interest in said property was inherited by your petitioners in the proportion of one-quarter of the one-half, to each, and then follows desorlp,. tlon of the property.

And further alleging that said Marshall Williams oh August 17th, 1917, by aot before Robert O'Connor, atempted to sell and transfer with the right of redemption within one year, from the date thereof, to one Arthur Ruiz, the property described and that your petitioners are the owners of one undivided half of said property in indivisión with Mrs. Josephine Brunet, wife of Thomas Jones end was sent into possession of the estate of said Marshall Williams and that petitioners no longer desire to with remain in indivisión/ ¡heir oo-owners Of said property and that a sale thereof is necessary to affeot a partition between them and the prayer is that they be reoognized as the sole heirs deolared of the said Mary Blakeley and be/ to be the owners in indivisión of one-half of the real estate hereinabove mentioned and there be a judgment directing a partition thereof by licitad tion and the said property be ordered sold at public auotion for oasli and finally that there be judgment in favor of your petitioners and for all general and equitable relief.

The answer, after sundry exceptions filed were properly overruled, denies all and singular the allegations the petition contained and the parties named are the heirs of the property claimed, beoause their ¡ucxsnisx aneestors were not married under the laws of the State of Louisiana and therefore these parties are without rights in the premises and prays that petition be dismissed.

We have carefully examined the reoord in this oase, together with the testimony adduoed.

¿11 the witnesses, Susan MoLane, Haggar Connors, Osoar Pllman, Mary Jones, James Dodds and Fannie Davis, together with the testimony of Mrs. Fannie Flemming, established the marp riage of the ancestors of the parties in question beyond a question of a doubt in so far a3 it is possible to do so in oases of this oharaoter, where the parties in question were at the time of the marriage, slaves, blit in our opinion from the testimony ■ and all surrounding oiroumstanoes we sxcosfcjqtí&at are satisfied the marriage between the parties named, their cohabitation and living together for years, their acknowledgment of the marriage all profe that fact. •

. rt would be useless to oopy Jin this reoord and totally unnecessary, all the evidence in this case, but it establishes without doubt the faots above stated.

Our Supreme Court in many proceedings has de-oided this question, commencing with the 6th La. Rep.- p 470, where it was held:

■Marriage, is -regarded in no- other light than a civil oontraot highly favored.

Marriage may be proved by any speoiei ofevl-djihoe not prohibited by law, whioh does not pre-suppose a high-» '** *5,diM °f- o-tidenoe in, the power of parties; oohabitation as

And in the 13th la. Hep. p. 109, Hosea's widow and heirs vs. Miles. ;

"Heirship, may he established by'parole evidenoe.," 44 Ann. 63. Sucoession of Llula.
"Cohabitation and the reputation of being man and wife, birth of children, giving the -name of the father, creates a presumption of previous marriage."

51st Ann. p. 1597, Succession at Fortier.

"It has been repeatedly declared that the law does not deolare null, marriages, in which the law relating to forms and ce.-emonies have not been observed) that marriage may be proved by any speoies of evidenoe not prohibited by law, whioll does not pre-suppose a higher speoies of evidenoe within the pow-t er of the party."

' All tend to establish, the' faot that cohabitation and living together of parties dor years as married people, and recognized as suoh by their friends and neighbors determines than question.

The only argument attempted to be advanced oontrary to this both orally and by brief of parties defendant and .hearsay is that the evidenoe adduoed is/biased/and therefore -inadmissible.

The Judge of the Court aqua who heard and' eaw these witnesses, all of them, was of the oontrary opinion, and. eo are wé.

.For the reasons- assigned it. is ordered, adjudged and decreed, that the judgment' of the Court aqua. be and 'the; same .is hereby affirmed.

-Judgjnent affirmed.


text:
    NO. 8156
    COURT OF APPEAL PARISH OF ORLEANS.
    S. P. TURNBULL versus AUTOMOBILE SERVICE COMPANY.

   Dinkelspiel; J,

Plaintiff sues the defendant company, alleging that they were indebted to him, first in the eum of $435.00, the value of one Ford Automobile, eeoond in the sum of $107.00, being for amount of repairs paid defendant and finally for the sum of $30.09 per month for the loas of the use of said maohlne from August 9th, 1917 until suoh time as he receives the said touring oar. Alleging further that defendants, «ho had for a consideration, full charge of the machine in question, whloh icxhongk through their neglect «as stolen from their premises, praying judgment for the amounts in question.

The defendant first filed an exception that the petition «as too vague and indefinite and that it disclosed no oause or right of aotion, which exception was Deferred to the merits and answering, after denying indebtedness in any way to plaintiff, allege particularly that they refused to deliver said oar, liability and admit that admit the theft of the oar but deny/they offered $107.00 in oash which plaintiff refused to aooept, but'this offer was made under a mlsappreheneion and they did not understand iksk their legal rights, they allege further that they oould not be called upon to return the money paid for repairs, deny the value of the oar as alleged by plaintiff, $435.00, admit that plaintiff's oar was reoelved by them Jbr repairs Hay 37th, 1917, and allege that they completed their oontraot June 6th, 1917, notifying plaintiff, but that he failed to take the oar away from their establishment and that thpy exerolsed every reasonable oare and precaution and were not guilty of negllgenoe and that said oar was stolen from the street in front of respondent's garage without their knowledge and they did everything to reoover the oar in question, reporting to the Police Department and otherwise used every exertion but without avail, henoe pray for judgment.

We gather from the reoord the following substantial faots:

On the 15th of June, 1917 in a letter by the defendant en Its letterhead wrote to plaintiff, and we quote same as followd
"We beg to advise that your Ford oar under license No. 31793 Is oomplete and ready for delivery; storage oharges at twenty five (.35) per day will aoorue on June 15th."

Plaintiff In this oase substantially testifies that he owned a Ford touring oar, whloh he bought sometime In May, 1917, and meeting with an aooldent he delivered the oar In question for repairs, to Ur. Dlokerson of defendant company; that he went to their establishment while still in bad shape, oaused by the ao-oldent In question and that Ur. Dlokerson informed him that they would put the oar In proper shape and olaiming that they had done so plaintiff went there to defendant's business place about the 9th of August and was presented with a bill for $107.00.

Q. What did Ur. Dlokerson tell you at the time when you paid that bill of $107.007
A, Well, I went In and looked around for my oar and I didn't see It anywhere, Ur. Dlokerson was engaged talking to a lady and I didn't dUccfczx disturb him, so I went and looked in the baok part of the building without seeing my oar, and finally said to Mr. Dlokerson, "Well Dlokerson lets oaeh up for that automobile; he said alright 1 am always willing to take money, presented the bill for $107.00 and I, said to him I owe you another bill and he says, yes for the storage of that oar, 1 was to pay twenty five oents a day for the storage and Ur. Dlokerson oontinued, we won't settle that now beoauee that bill will be brought down considerably, made lose, so I simply paid him for the repairs.
Q. What did he tell you he was going to ao with the oari
A. I said, Where is the oar, he eaid Its- In the warehouse, I said X would like to get it and he replied, I am going to tell you, X will have the oar out, it is a little dsucdty dirty and dusty and X am going to olean the oar up, X informed him then that X had to go to Kenner that evening and asked him If he would ha have the oar at my house at three o'olook, and his reply was, yes indeed, X Will sure have it there, and X thought It was alright.

This witness oontinuee in tal's testimony: the time ap-proaohing and the oar not ooming, I rang up on the telephone and spoke to Ur. Diokerson and he said "Oh i I have been trying to ks oatoh you ever sinoe you left my office this monring, look herd ¡fcsnHBüdcHg sometime ago there was a oar stolen from my place and we have just found out it was your oar, I replied thats queer, so after a further conversation, the witness called upon Mr. Dickerson who offered to return to him the amount he had paid for repairs $107.00, Diokerson told him that the oar was tie stolen about the third of July and this conversation was on August 9th and he also informed me that he had notified the polioe and had endeavored to traoe the oar without suooess; he then goes on to testify that he had paid $430.00 for the oar in question but in a oolllssion with another auto the oar had been badly damaged and he goes on to describe the damages whloh were repaired by the defendant oompany.

In his testimony on rebuttal this same witness testified that in the aooident referred to he had three ribs broken, extracted collar bone was bruised, he had to have his teeth /jeasferató* all of them, and he was in a bad shape and that was the reason he was not able to go for his oar prior to the time testified to; he was oompelled to hire another oar to take his wife out riding, who was also injured in the aooident; he testifies to reoeiving the letter, charging twenty five oents per day for storage and to this ask extent presents for consideration his case.

One of the defendants, Mr. Diokerson in his testimony says:

Q. Mr. Diokerson, you are being sued here for the value of a Ford oar which it is alleged was stolen from your place of bus-flhere iness, we admit the theft of the oar. /Sun was the oar when it was stolen?
A. It was within-as near as I can tell, about twenty five feet pf the front door of our garage, parked against the ourbstone on Howard Avenue, that was our place of husmees.
The oar was stolen daring the daytime on the 13th, 5 o'clock In the afternoon, broad day light*
Q. lExxxc ilhy was that oar out In the street!
A, Because we simply didn't have room to keep It inside any more, our work was hanging, we had lots of work to do and we needed floor splaoe to aotually work on other jobs.

Witness testifies that his firm did a general servíoe business but nothing else and further testifies that the oar was brought Into the garage every night and never left out, that the oar was in the possession of defendant about two months; that he had notified plaintiff to take this oar away, Wfrfcrtra* he further testifies that there were eighteen or twenty oars out there in front until night time and they were all parked against the ourb-stone, he admits that he aooepted the prloe of the repairs íes knowing the oar had been stolen and that he expeoted through the polloe to get the oar baok, henoe made the statement that he woulki return It to plaintiff, that he endeavored to do that but without avail, that he had notified the polloe department about the 4th of July and that was the time he knew the oar In question had been missing.

Question by the Court as to whether or not they had reoeived any reply to the letter sent by his firm to plaintiff, he said no.

In referenoe to the value of the oar in question, Osoar UoOoy, an automobile salesman for four years and who was oars familiar with the value of / after desoribing it, puts the value at ♦335.00.

X. J. Eehlor was employed as salesman and stook man by the Universal Kotor Company and had been in the business for six or seven years, is familiar with the value and prloe of oare and he plaoes the value of this oar at ♦950.00 to 1970.00.

Eugene Stanley, who was Assistant Distrlot Attorney at the time in question, It was admitted, would have testified that Ur. Olokerson oalled on him end stated that he was willing to reimburse plaintiff In the value of the oar.

The Civil Code under the heading of the obligations of the depositary.

Art. 3937. “The depositary is bound to use the same diligenoe in preserving the deposit that he uses in preserving his own property.*

Art. 3938, "The provision in the preoeding artiole is to be rigorously enforced."

Section 4 of .art. 3938 reads: "If it has been expressly agreed that the depositary should be answerable for all negleote.”

Tho oase relied on mainly possibly by the defendant is that of Levy vs. Pike,Brothers & Co. 25 Ann. p. 630, and it was there held:

"Where the deposit was r. gratuitous one, and where the abstraction of the thing deposited seems to have been one of those bold and adroit aots which are carried out suooessfully in defínanos of ordinary prudenoe and diligenoe, and the possibility of whloh is seen only after its aooomplishment, the depositary is not liable, as he would be if the loss arose from gross or lnexousable negllgenoe on his part."

And this same oase on rehearing the Court finds that "this was a gratuitous deposit and deolded under the oiroumatqnoes the defendant not liable and not to be held to that rigid accountability he would have been had the oontraot been one of hiring, or had the deposit been made at the request of the depositary, or solely for his advantage, or had it been expressly agreed that he should be answerable for all negleots. 0. 0. 3938. Hone of these conditions appear to have entered into the agreement of the parties in this oase."®

Taking into oonsideratlon all the faots of this oase we hold the defendant liable mainly for the reason that they admit that from ten to at times possibly twenty oars are left on the publio streets without any watchman or oare of any kind or oharaoter, that no one in defendant's employ paid the sllgh. test attention to this automobile and it was left with others on the publio street without any one in oharge and it was placed with defendant by plaintiff for storage, the rate fixed being twenty five cents per day and had been taken away from :.a open plaoe sometime in the month of July 1917 and had never been returned to plaintiff, in fact had never been found, and, aa far as this record goes, is still missing, and not bein;. a gratuitous deposit we are of the opinion that defendant is liable and responsible for the value of the ear

But we do not consider that they are liable for the value of a new oar and they oan only be held for the value of a second hand car, which value, testified to by witnesses, would be for a second hand oar, from $336.00 to possibly #375.00.

We are therefore of the opinion that the amount allowed by the District Court in this oase is entirely too high and therefore the judgment in this case must be reduced.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower Court be amended, and thdt there now be judgment in favor of S. P. Turnbull and against the Automobile Service Company, W. H. Post and 7, A. Dickerson, in solido, for the full sum of #335.00, plaintiff to pay the costs of this Court and the defendants to pay the oosts of the District Court, and as thus amended, judgment be affirmed,

-Judgment amended and affirmed*

Claiborne, J, not having heard the argument takes no part.


text:
    Charles F. Claiborne, Jud^e•
    L. G. BERNIN VS. PETER J. GUARINO
    No. 8157
    December 12th, 1921.

   K. Cr. BEffllN VS. PETER J. GUARINO

No. 8157

CHARLES F. CLAIBORNE, JUDGE.

This is a suit upon the following promissory note:

$500.00 Mew Orleans, Nov. 25th, 1919 For value received ninety days after date I jointly and severally promise to pay to the order of K. G. Bernin Five Hundred Dollars a.t the Canal-Commercial Trust and Savings Bank, New Orleans, with interest at the rate of 8 per cent, por annum from da,te until paid. The makefs, endorsers, guarantors, end sureties hereby severally waive presentment for pay,lent, demand, protest, and notice of protest and non-payment x x x

P. J. Guarino

The defendant denied any indebtedness to the plaintiff; he admitted signing the note sued on, but averred that it was given without value or consideration;

further ensvfering defendant specially averred that said note sued upon was given as part payment of a certain Graham-Bemstein truck; that said truck was guaranteed to your defendant but that immediately after the purcbrse of said truck sane proved to be unsatisfactory and defective; that this fact was brought to the attention of plaintiff in this suit and notwithstanding repeated demands by your defendant upon said plaintiff to remedy said defects or furnish him with a new truck, said plaintiff failed to carry out his guarantee under his contract of sale; that the value of said, track in the condition in which it was reeeived by your defendant, is not $1500, although your defendant agreed to pay the regular price of $2300.00 for a truck in first class condition; that said truck, as set out above, was not in the condition as represented".

There was judgment for plaintiff and the defendant has appealed.

The facts of the case are that the defendant sold to the plaintiff a truck for the price of $2365, in part consideratiSn and payment of which the defendant furnished his promissory note for $500, which is the note sued on described above, and for the balance the defendant furnished twelve other notes amounting together to $1865. But in order to suit the convenience of the partios and to preserve the mortgage on movables as provided by Act 198 of 1918 the sale was made by authentic act, and the declaration wa3 therein made, contrary to the fact, that $500 had been paid cash. The truth was that $500 had not been paid cash, but that the above note of $500 had been furnished by the defendant as a part consideration of said sale.

The act of sale recites!

"Be it known, that on this 22d day of November 1919, Before me, Edward B. Ellis, Notary Publio, duly commissioned and qualified, in and for the Parish of Orleans, State of Louisiana, Personally Came and Appeared: Maurice G. Bernin, of legal age, residing in New Orleans, La., who hereby sells, transfers, and convoys unto Peter J. Guarino, of legal age, residing 1240 Columbus St., Hew Orleans, La., here present, accepting, and purchasing for himself, his heirs, and assigis, and acknowledging due delivery and possession thereof one new Gramm-Bein-stein, 1 and 1/2 ton truck 15 Chassis. This sale is made for the sum of $2365 dollars, of whioh the purchaser has paid in cash $500 to the vendor, who hereby acknowledges receipt thereof; and for the balance of said purchase to-Y/it; the sum of $1865 the said purchaser has furnished twelve promissory notes - ten for the sum of $140 each, and two for the sum of $232.50 each &o x x x x No agreement except what is embodied herein shall be binding upon the parties hereto; this sale containing all the agreements or warranties relative to the said of said property", xxxxxxxxxxxxxxx

Upon the trial of the case the defendant, as a witness was asked:

"At the time you purchased the truck from Mr. Berrin, was there any guarantee, verbal guarantee?"

To which question the plaintiff objected on the ground that any guarantee should be contained in the act of sale, and that the act spoke for itself. Upon which the learned Judge of the District Court ruled as follows:

"In the chattel mortgage there is a clause that states that no agreement except what is embodied herein shall be binding on the parties thereto. This will contain all the agreements and warranties relative to the Halé of the property. I understand that the defendant on the stand signed this act; oral testimony of what (went) before or after the signing of that act is totally inadmissible, and the objection of plaintiff is maintained".

This ruling of the Judge in so far as it excluded oarole evidence concerning what may have been said about guarantee or warranty beyond what is contained in the act of sale before it was passed is according to law, 0. C. 2276 (2256), and is maintained.

Upon further examination the witness was asked:

Q. Mr. Guarino, when you purchased this truck from Mr. Bemin, was that a new truck?
A. He said that it was.
Q. Did you have occasion to use that truck in your business?
To which question the counsel for plaintiff objected "si} wholly immaterial to the issue in this case".

Which was maintained without any reason. The following questions were also objected to and excluded:

Q. "Did you have occasion to bring this truck back to Mr. Bemin? After repeated complaints to Mr. Bemin about the condition of this truck, is it not a fact, Mr. Bemin offered you $700 for the truck? Did Mr. Bemin ever attempt to remedy the defects in this truck? Can you tell me the name of the driver who had been driving this Gremm-Bemstein truck? The truck that you were driving, what was the condition of that truck? Did you have occasion to bring that truck to Mr. Bernin's place many times?"

The objection to these questions was maintained, as we were led to believe by the argument, on the ground that the- clause in the act of sale provided that

"this sale containing all the agreements or warranties Relative to the sale of said property"

and inasmuch as there was no special warranty stipulated in the act, it amounted to a sale without warranty. We believe this to be an error. In the absence of any warranty clause in an act of sale, the law inserts one. The law presumes warranty in every case, without stipulation concerning it. In order to deprive a purchaser of the benefit of the presumption of warranty it is essential that a clause of no warranty be specially included in the act. The object of the testimony evidently was to establish the defense that the truck sold was defective. It was error to exclude it.

There are things which are of the essence of a contract, such as price in a sale; others Yfhioh belong to its nature, as warranty in a sale; and lastly bhings yfhioh are accidents, depending on the Trill of the parties, such as an agreement of no warranty:

C. C. 1764 (1757)

§2 "Things which although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting then, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which nay be modified or renounced, without changing the character of the contract or destroying its effect".

C. C. 2475 (2450)

"The seller is bound to two principal obligations: that of delivering, and that of warranting the thing which he sells".

C. C. 2476 (2451)

"The warranty respecting the seller has two objects: the first is the buyer's peaceable possession of'the thing sold, and the second is the hidden defects of the thing sold oi? its redhibitory vices".

C. C. 2504 (2480)

"Although it be agreed that the seller is not subject to warranty, he is, however, accountable for what results iron his personal act; and any contrary agreement is void".

C. C. 2520 (2496)

"Redhibition is the avoidance of a sale on account of some (hidden) vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice".

C. C. 2541 (2519)

"Whether the defect in the thing sold be such as to render it useless and altogether unsftited to its purpose, or whether it he such as Merely to diminish the value, the buyer may limit his demand to the reduction of the price".
’'There is in all sales an implied warranty against redhibitory vices anti defects". 121 La. 72 (75); 13 A. 229; 7 A. 243; 6 A. 442; 5 A. 35; 9 R. 352; 5 R. 217; 17 La. 101; 7 La. 519; 3 La. 330; 1 La. 309; 1 N. S. 316; 8 H. 704; 6 ¿I. 697. /¿ 3 ¿ ^ '

The purchaser of machinery who ha3 furnished notes may resist their payment on alleging that the machine was defective. 123 La. 1093.

Unless warranty is waived the vendor warrants the thing sold as fit for the purpose intended. 52 A. 1957; 45 A. 722.

By no stretch of the imagination can the clause relied on g> to the extent of excluding warranty. Warranty is the rule; exclu-wion of warranty, the exception; in order to succeed, the exception must be made clear and without doubt. 2 N. S. 468; 6 1!. 698; 1 Ji. 150.

It is therefore ordered that the judgment herein be reversed and that this case be remanded for the purpose of affording the defendant an opportunity of establishing by evidence the defense by him set up that there were hidden defects in the truck by him purchased which entitled him to relief under Articles2520 to 2544 of the Civil Code. Costs of appeal to be paid by the plaintiff and costs of District Court to await the final judgment herein.

December 12th, 1921.


text:
    No. 8161
    MRS. MYRTLE S. FEITEL vs HAMPTON REYNOLDS.
    COURT OF APPEAL STATE OF LOUISIANA PARISH OF ORLEANS

   0PX3I01Í.

3y his

Honor John St. Paul.

Ihis is an action ax dallcto. Plaintiff sues for damages to har automobile and for hurt to herself. Ilia defense is want of negligence on the partAof plaintiff. Ihe material facts are practically undisputed and the case presents only questions of law.

I.

Defendant is a road oontraotor, ana at the time of the accident was constructing a suburban highway which leads north from the thicicly inhabited parts of the city of Dew Orleans, through the moro sparsely settled portions thereof, and beyond; but all within the corporate limits of said oity, and much traveled. Ha had completed the work from the city proper up to the point where the accident ooourrad, and was at work at that point and hayond, Ihe road was some 26 feet wide from ditoh to ditoh, and when oonplated was to consist of a graveled strip 16 feet wide having on each aide a strip of packed and sodded soil about 5 feet wide, level- with the gravel where it meets tlie> same and1 sloping slightly to the ditoh on either side.

Iho method of construction was to gat the linas and levels from the highway engineers, and then to set up guide hoards' 12 inches high and 16 feet apart and pour gravll between the Bame; whioh, on being spruad out evenly and rolled, paotad or "sat11 on a level or nearly on a level with the top of the aforesaid guide boards the earth from the dltohes was to be thrown up to form the "shoulders'1 or sloping strips whioh we have mentioned. When finished the guide boards were to be taken up and the road was then to consist^ CUS C^erfUí0^cÍJ) of a level roadway having a graveled strip in the oentar 16 feet wide and two strips of packed and sodded soil, each about 5 feet wide and sloping gently towards the drainage ditches on either side.

On the night of the aooldent, for it ooourred at night, the road had bean completed from the oity to the point of accident; and along the completed portion presented the appearance Just mentioned; but' Just at this point the guide boards vie re still standing and protruding some inohes above the level of the gravel within and of the shoulders without.

It is not made olear by the evidence whether the graved had yet sat, or had settled; or whether the shoulders had yet been thrown up to their proper level or had become soft on account of rtins. But all this is quits immaterial for it is an (indisputad fact that the guide hoards still stood in place and that these guide hoards caused the accident whan plaintiff ran partly off the gravel with one wheal sinking in the f#### unfinished shoulder and the rT other sinking in the loose^sunken gravel.

The evidence shows that plaintiff had no knowledge that the work was going on at that point, and also that neither harrier nor red light had been placed hy defendant to warn travelers that suoh work was going on and that at this point an obstruction stood in the roadway which narrowed it down from a clear patch of 26 feat to one of only 16 feet. In other words there was nothing to warn travelers that, from this point on, they must confine thesiBielves strictly within the lines of the graveled portion of the road. And this failure to warn traveler», especially hy night, of the changed and dangerous condition of the road thence forward, was In our opinion legal naglegenoa. Our Jurisprudence le overwhelmingly that way. Jacobs vs Jacobs, 141 La. 273, Citing; 134 La 455, 128 La 182, 126 La 594, 120 La 831, 118 La 77, 104 La 412, 50 An 284. See also Allen vs Mindan, 127 La 403, Citigg; 121 La 910, 41 An 1031. Also, Aucoin vs City, 106 La 271; Smith vs Telephone Co. 7 Orleans Appeals 371; Gas Co.vs Patterson , 12 Orleans Appeals 410.

XX.

So much on tha subjecji of defendants negligence; and now as to the alleged contributory negligence of plaintiff.

The aooident occurred in this wise. Plaintiff was coning from the oity, going at a moderate rate of speed <15 or 18 miles) and overtook another automobile proceeding at a still slower rote, just at tha point where the guide boards still stood. Ihe other driver did not yield sufficient roadway to pass him by on the graveled portion of the road, and plaintiff turned asl&a slightly for that purpose. In so doing her loft wheels oame off the gravel and onto the shoulder, thus bringing her automobile directly over the upstanding guide board , by whioh her auto was oaught and almost wrecked and she herself thrown forward and hurt.

It is charged that it was contributory negligence on her part to leave the graveled1 atrip and turn partly upon the unsurfaoed part of the road; and some authorities are cited, as upholding that contention; but we do not think they do.

At moat they hold this; Shat it ia not the duty of municipal and oounty authorities to maintain in thoroughly good order, the whole width of a street or highway, hut only a reasonable portion thereof sufficient for the purpose of travel; and that a traveller who leaves the ordinary path "without soma aufflolent reason for doing so ", MAY he guilty of oontrihutory negllgenoe under the particular # oiroumstañaos surrounding the ooourenoe. Goelz vs Ashland, 75 Wis 642; Carey vs Hubbardston, 172 Mass 521- (Burke vs Tricalli, 124 La 774; and Tatje vs Frawley, 52 An 884, are Illustrative of such circumstances.)

But the general rule is thus laid down by Cyo, Vol 28 p 1400, whioh is both reasonable and supported by ample authority, to wit; There is no rule of law requiring a traveler to keep in the usually traveled portion of a public way; and the mere fact that a person is off the traveled portion of tli" roadway at the time he was injured, does not per se constitute oontrihutory neglegenoe.

And again; A traveler at night, in the basence of knowledge to the oontrary, has the right to aot on the assumption that the street or way is in a reasonably safe oondition for travel by night as well as by day; and is not bound to antloipate that he will encounter excavations (or other obstructions) without having some notioe thereof by$ lights or other precautions taken for his proteotion» 28 Oye 1452.

December 12th, 1921.

We find no contributory neglegenoe In plaintiff»

III.

As to the ijuantuu of damages; It Is not disputed that plaintiff paid ‡380 for the repair of her automobile and that this amount was reasonable. As to the personal injuries suffered by herself, it is shown that she wap thrown violently forward, had her knee lacerated and her arm bruised, and received suoh a severe shook to her nervous system that she was detained at home for three weeks, under the daily core of her physlean for the firpt week, and afterwards every other day; that she suffered and still suffers from severe headaches brought on by her nervous state; and on the whole we think she should be allowed^ say^ $#00 for her persona! injuries.

She judgment appealed from is therefore reversed; and It is now ordered that plaintiff, Mrs. Myrtle S. Feital, have judgment against defendant, Hampton Reynolds, for the full sum of Bight hundred and eighty dollars (j380]^ with legal interest from jr.dioial demand until paid and the costs of both courts.

Hetr Orleans la,


author: Dinkelspiei;. J, Dinkelspiel; J.

text:
    NO. 8162
    COURT OF APPEAL PARISH OF ORLEANS
    MR. AND MRS. ERNEST RUFFO versus H. E. MARCOTTE.

   Dinkelspiei;. J,

This suit grows out of the same controversy decided, in this 06urt between these same parties, being record No. 7777 of this Court and it- is contended that the plaintiffs in this case had instituted an aotion against the defendant olalming the sum of One Hundred end Twenty Five Dollars for rent when he had in the same aotion brought suit for possession and therefore the only question presented before us, is whether or not pending suit for possession an aotion for such rent for the said premises oan be brought at the same time.

The same question was presented by the defendants and deoided adversely to them by this Court and a oopy off that opinion presents the issues and decides the question so that there is nothing left for further deoision in this oase.

"Mr. and Mrs. Earnest Euffo vs. H. E. Marcotte.

No. 7777

Since the filing of the transcript of acpee-1 in this oase, the plaintiff has instituted an aotion in the District Court against the defendant in which he claims judgment for One Hundred Dollars for rent for the months of August, September, October and November lest and for ell such additional rents as may fall due from month to month pending the prodeedings and that the lease for the remainder of the term be cancelled and annulled and that he be out inpossession of the leased premises.

The defendant and appellant thereupon brought the above petition to Che attention of this oourt, and construing said petition ss an abandonment of the original suit for possession and incompatible therewith, moved this oourt to remand this oese to the District Court for the purpose of inquiring into the efieot of that suit for rent ucch this suit for possession.

We think it unnecessary to take such action, as the Supreme Court has already settled th'e question. In the oases of Dubois vs. Exiquee 14 A. 437, Fox vs. HoKee 31 A, 67 and Doullut vs. Rush 143.La-. 443 (451) the Supreme Court said that there was no inoonsistenoy in the demand for the dissolution of I a lease end for the rent during the oooupanoy of Bwxi the les- i see up to the time he surrenders possession of the leased preaisea In the case of Delmar vs. Alharstadt 10 Ct. App, 148 this oount decided that s notice to vacate and a suit for possession are not v/e.ived by a receipt, during the pendenoy of the suit, ccf rent past due.

The case of Deslcnde Vs. O'Hern 33 A. 14 relied upon by ' appellant is not in conflict with these opinions. In that .oseé iel the Court maintained en injunction against the exeoution of a v»rit of eviction for the reason that, after the judgment of evioSion, the lesser as a compromise, had "agreed not tc exeoute this judgment and to permit the le33ee to remain bn the premises if he (the lessee) would pay costs and the entire rent." The faots in this case are different. The lessor hss only sued for the rent accrued ”nd to accrue during the actual occupancy of the premises by the lessee. Surely the leasee cannot occupy the premises free of rent, nor does the ls-w me.kg the lessor forfeit his right to the rent as a penclty for suing for eviction for non-payment of rent, nor lose his right to a suit for eviction as a penalty for suing for rent due for occupancy.

The motion to remand is therefore denied, and as the petition for a rehearing has not oonviirsa.d us of an error in our original coinion, the reh-sring is also denied.

January 13th. 1930.

ñs.Fíul, J: ócncurs in the refusal to remand, but dissents as refusal tc gr=nt t. rshisrlhg." .

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court anjua be and the same is hereby affirmed, oosts of both dourts being peid by the defendant.

-Judgment affirmed»

NO. 8162.

COURT OP APPEAL PARISH OP ORLEANS.

MR. AND MRS. ERNEST RUFFO versus H. E. MARCOTTE.

On rehearing.

Rehearing refused.

Dinkelspiel; J.

for We are oonvinoed that our reasoi/ x£ judgment Jin thia oase was oorreot and therefore the original Judgment rendered bp us in this oase is reinstated and now made the Judgment of this Court.

Por the reasons assigned the judgment herein rendered is affirmed with ooets in both Churts against the defendant.

-Judgment affirmed-