author: CHARLES F. CLAIBORNE. JUDGE.

text:
    CHARLES F. CLAIBORNE, JUDGE.
    MAUREPAS MILLING CO. vs OPDENWEYER - GEORGE LUMBER CO. Appellants.
    No. 7406.
    December 23rd. 1918.
   CHARLES F. CLAIBORNE. JUDGE.

This is a suit for the value of lumber alleged to -have bean appropriated by the defendant without authority.

The netition alleged that during the year 1913 and during January 1914 the nlaintiff delivered into the possession of the defendants, for their mutual convenience, at the lumber landing of the defendants, on the New Basiii Canal, 22871 feet of lumber which the defendants refuse to return or to account for; that the value of said limber is thirty dollars per thousand feet or a total of $677.13; the plaintiffs claim judgment for a return of said limber or in default thereof for its value. ^ ^

Defendants were cited October - 122K& - They pleaded the prescription of one year, and for answer denied all the allegations of the petition.

The exception was overruled and there was judgment in favor of the plaintiffs for $677.13 with legal interest from judicial 4emand.

Defendants have appealed. They have not favored us with any authority on their exception of prescription, nor have the plaintiffs. We presume the defendants rely upon Article 3536 (3501) of the Civil Code which reads as follows:

"The following actions are also orescribed by one year: x x x that for damages x x resulting from offenses or quasi-offenses".

In the case of the Liquidators of the Prudential Savings and Homestead Society No. 7169 of this Court we said:

■Where the unlairful act of one porson si»-ply damages another without resulting benefit to the wrongdoer there ie a simple tort, and the action for reparation is prescribed by one year.
Where the unlawful act of one person not only damages another but also enriches the wrongdoer, there arises an action both ax delicto and quasi tx con-tractu. and the action to recover the unlawful gain is barred only by the prescription of ten years*.

The Court cited many authorities in support of its opinions. The following seem to apply to this case. 11 A., 277; 19 A., 491; 23 A., 142; 32 A., 1091.

In Heirs of Burney, 47 A., 92, the Supreme Court said:

"Therefore in the action to annul, coupled with a demand for the price of the thing alienated, we do not think that the restitution demanded has any element of damages in it, and is not covered by the prescription of one year, x x x The obligation of defendants to restore the thing, the fruits and the revenues, or the price, in case they have alienated it, results not from an offence or quaai-offenSe but from a quasi-contract*.

There is no inconsistency.in claiming the thing or its value. 15 A., 293; 124 La., 680.

The case of Morgan's La. & T. R. Rd., 119 La., 392, was one by attachment to recover money fraudulently obtained, from the plaintiff. The defense was that no attachment could issue from obligations arising gjj delicto. The Court said the cause Of action was not one arising ex delicto. Said the Court, p. 404: "Thus, if a thief steals a watch or other article of property, he subjects himself to arrest, trial and punishment in the enforcement of the criminal laws of the State, but he likewise opens to the owner of the watch the right to have recourse to a civil action for its recovery, and that action ie not one ex delicto, x x x p. 408: If plaintiffs' money was unduly taken iron him as alleged by him, he had the choice of two remedies - pne ex delioto for dsemges, and one under the law authoriaing him to recover the money itself which had been taken from him. x x x Tha plaintiff in this euit is not seeking damages from the defendant. It is suing for the recovery of the precise amount of money belonging to it which it alleges was unduly received by tha defendant, xx The tendency of the Courta is to construe tha action as one on an implied contract when necessary to support the remedy*.

We are therefore of the opinion that the action in this case is not one arising from an "offense or quasi-offense", and that the prescription of one year does not apply.

The first question that presents itself upon the merits is. was the lumber claimed by plaintiff ever delivered into the possession of the defendants?

The established and uncontradicted facts of. the case are that f. J. Comerford had a contract to put up some revetments at Test End; the lumber to do the work was sold to him by the Maurepas Milling Company; it was to be del ivered to him on the landing of the defendants serving their yard; the defendants were under contract with Comerford to haul the lumber thus delivered upon their landing to the mill of the Reiman Manufacturing Company, where it was to be dove-tailed, and the defendants were then to haul the lumber to West End, to be there put in position; for all of which the defendants were to be paid by Comerford $2.00 per thousand.

Plaintiffs made three shipments and deliveries upon defendant's landing; the first two shipments were received by Comerford and hauled away, but he paid only for the first one; therefore the plaintiffs notified the defendants not to allow the removal of the third shipment until it had been paid for; and defendants notified Comerford who thereafter removed none of the lumber» It is also satisfactorily proven that the defendants sold all the dumber delivered Pn»- nof a part of it at the rate of $30.00 a thousand for $173.52.

Independently pf this proof, we held in the case of Underwood Typewriting Co. vs Vatter No. 7067 that where it ia proven that property, of plaintiff was at one time in the poaseaaion of the defendant, the burden was upon him to show what had become of it; thia^_defendanta have failed to 8how.

But we are not of the opinion that the plaintiffe can claim as ownera of the lumber. They had aold and delivered it to Comerford, and the defendant^ were in poaaeasian of it for his account. Plaintiffs had no right to ignore the sale and to resume ownership on the ground of non payment of the price» by merely notifying defendants of that fact and stopping further removal of the lumber. A sale is not rescinded of right by the mere failure to pay the price, in the absence of agreement of the parties, and this is not shown here.

C. C., 2046 (3041) "A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance".

Article 2561 (2539): "If the buyer does not pay the price, the seller may sue .for the dissolution of the sale". C. N. 1654.

A sale is not dissolved of right by the failure of pay the price; a suit and judicial action are necessary. 4 Fuzier - Hermann p 156 No. 121 - 43 Dalloz Rep. Leg No. 1258 1259, 1264 - 24 Laurent 341 - 2 Trop Vente No. 665 - 3 Baudry - Lac p 362 575, 38 Cyc 2021 35 Cyc 506

Howeve^the plaintiffs had a vendor's privilege upon the lumber sold by them for the price due to them, and to the extent of that price they have a cause of action against the defendants.

In the case of Roger vs Milliken No. 6805 we decided that where factors receive and sell sugar upon which an overseer has a privilege for salary superior to theirs, and appropriate the price to themselves, that they will be liable to pay the overseer the salary due to him up to the amount of the price received by them. 48 A., 686; 85 U. S., 644.

In Seelig vs Dumas, 48 A., 1494, the plaintiff had leased to Theresa Hamilton a lot of furniture; the defendant removed the furniture to his store, sold it and appropriated the proceeds. The Court said, p 1498:

"Granting that they evidenced an absolute sale as he declared them to have been, he (the defendant) knew that a large portion of the price which had been fixed between Theresa Hamilton and the plaintiff was still unpaid and stood secured as to payment by vendor's privilege, and he deliberately and intentionally with a view of benefitting himself and cutting off plaintiff's orivilege, purchased the furniture, and withdrew it from plaintiff's pursuit". Quoting 10 La., 121; 8 R., 428; 12 R., 20 - See also 6 A., 478; 3 A., 133; 13 A., 443; 22 A., 438; 52 A., 2147. 38 Cyc 2028

In Weil vs Lapeyre and Mechanics & Traders Insurance Co., 38 A., 306, 310, the Supreme Court recognized the right of á mortgage creditor to recover from a third person the value of mules removed from the plantation mortgaged by such third person who "sold them and pocketed their proceeds".

In the case of Hyman vs Hibernia Bank, 139 La., 411 the Supreme Court held that parties who had removed the contents of leased premises, sold them and anoronriated the oroceeds were liable to the payment of the lessor's nrivileged claim for rent on such contents, quoting a long line of authorities.

The cases in 3 A., 133 and 48 A., 686 were affirmed in 52 A., 2147, 2148 and in 107 La., 322. See also 47 A., 742; 117 La., 163; 131 La., 379.

In quoting the case of Hyman vs Hibernia Bank and others , we must not be understood to intimate that there was any conspiracy with any one or intentional wrong committed by the defendants, but only to confirm the principle we advanced that persons who sail the property of another or unon which another has a privilege must account for the price. 38 Cyc 2026 no 3-

The plaintiffs had sold the lumber to Comerford at $30 a thousand. That is the extent of their claim. We are satisfied that defendants sold it for as much, if not for more.

It is therefore ordered that the judgment herein in favor of the plaintiffs be reduced from Six Hundred and seventy-seven 13-100 dollars to Four Hundred and fifty one 42-100 dollars, and as thus amended, that it be affirmed, costs of appeal to be paid by plaintiffs.

December 23rd. 1918.


source: Caselaw Access Project

author: By his Honor, John St. Paul.

license: Public Domain

text:
    NO. 7407
    MAISON BLANCHE COMPANY VS MRS. R. H. GREEN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   0 I I í I O H.

By his Honor, John St. Paul.

Plaintiffs are merchants and defendant is a customer of theirs with a good credit.

of plaintiffs stock: three sets of bedroom furniture which was- delivered at her home. She directed that two sets he charged to herself and the third to one A. H. Page, who (she said) had -commissioned her to purchase it for her mother. On a certain day defendant selected out . _ _ urt*V

Two sets were charged to her and in due course paid for. As to the third set, the salesman referred the matter to the "Credit man", who approved the sale and authorized it3 being charged to Page. This was done and the hill was 3ent to Page.

A few weeks thereafter Page died without having paid the hill, and shortly afterwards plaintiffs, disregarding Page and his succession, claimed the amount from defendant and are now suing for it, in the theory that the set was sold to her.

The suit is not brought is the theory that plaintiff was not authorized by Page to make the purchase; and her evidence is that 3he had his authority. We believe that she had, and doubtless so do plaintiffs, who had ample opportunit ascertain the facts before delivering the furniture. The qut pre be one, 13 whether defendant i3 liable because she a._, . „d received the good3.

As it is clear that defendant was simply Page's agent and had disclosed that fact and that she did not pledge her 07m eredity she is therefore not personally liable. C. C. 2013. Whitney Vs Wyman 101 U. S. 348.

Nor does it make the slightest difference that defendant selected the furniture and that it was delivered to her;, for even if it had been for her own use, she would still not have owed for it. In Standard Distilling Co vs Aronson, (10 Court of Appeal 15, 9 Court of Appeal 328) the goods were selected and delivered to Aronson, and part of them had actually been used by himself, but he haa directed that they he charged to his son ana the charge haa been made accordingly. We hela that Aronson was not liable.

December 23rd, 1918.

Watson vs Jones 125 La 249, has no application. There the court said (p.251) that though the goods haa been charged to Jones, nevertheless Pierson might still be liable if the goods were "sold" to him. As the learned Chief Justice has emphasized the word sold ii is clear he meant something more thsi- rare selection by and delivery to Pierson. He meant if Pierson had engaged his personal credit.

The judgment appealed from is correct.

Judgment Affirmed.

Hew Orleans, la,


author: Max Dinhelsplel. Judge.

text:
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS Court of Appeal
    SCHWARTZ & FERRY, Appellees, vs. FRANK MANFRE, Appellant
    No. 7411.
   ü P I B I OH

Max Dinhelsplel. Judge.

TMb controversy arises under the following state of facts;

Plaintiffs, a commercial firm, sue the defendant on a promissory ited Hew Orleans, Ta., September 21, 1917, for the sum of $2424.80, note payable thirty days after date, made to the order of plaintiffs and payable at the Whitney-Central national Bank of the City of Hew Orleans; said note bearing eight per cent, interest from maturity until paid, together with ten per cent, attorneys' fees owing thereon^w)£)t placed in the hands of attorneys.

Plaintiffs show that defendant paid them on account of said note on October 17, 1917, the sum of $293.75, and on Hovember 27, 1917, a further credit en said note of $176.26; and that on January 16, 1918, plaintiffs placed said note in the hands of their attorneys for collection, and claim that under the terms of said note there became due, on the principal and interest from said date, ten per cent, attorneys' fees.

Plaintiffs further represent that on February 4, 1918, they reoeived and credited on account of said debt the further sum of $1414.00, and they ask for a judgment asrainst the defendant for the face of the note and the difference between/ the amounts eredited, together with ten per cent, attorneys' fees en the principal and interest due on said >ete from January 16, 1918, for costs and general relief.

■ The defendant answers, admitting his signature to the obligation sued on, the credits given him by plaintiffs, and goes en to state, substantially, that he entered into an agreement with the plaintiffs for the purchase of 205 barrels of flour to be delivered to him en or before the 30th day of August, 1917, and he would pay-for said flour the sum of $11.75 per barrel, or the total amount of $2408.75; that en the 21st day of September 1917 the plaintiffs tendered to respondent the said 205 barrels of flour purchased by him, but, as it was not eonvenlent for him to pay the sum aforesaid, toeing the purchase price of said flour, a new agreement and contract was entered Into between plaintiffs and himself to the effect that said SOE barrels of flour was to toe placed in the Importers Warehouse in the name of said plaintiffs and he, the defendant, would toe allowed the privilege and right, during a period of thirty days, to take said flour in lots of 26 barrels at a timo and to pay cash for same upon delivery; that under this understanding and agreement he did execute the note in question for the amount stated, payable at the time indicated, and that said flour was stored in the Importers Bonded Warehouse, and each payment made toy him for flour delivered to him out of said lot of 206 barrels was to toe credited on said note, and further, Vtlkt he was to pay Interest and storage charges on said flour; further, that in accordance with this contract and agreement defendant ordered delivered to him toy plaintiffs26 barrels out of the said lot of 205 barrels belonging-to him in the said warehouse, and upon receipt of said 25 barrels he paid plaintiffs the sum of $293.76, which was placed to his credit on said note; that subsequently defendant called upon the piaintiffS/to deliver to him another lot of 26 barrels of the 206 barrels stored in said warehouse, tout that plaintiffs delivered to him only 16 barrels of flour, which defendant received and paid for at the same rate, $11.75 per barrel, amounting to the further sum of $176.26, which was s’1 sc credited on said note.. He further states that after he had received the said 16 barrels of flour he repeatedly and at intervals requested plaintiffs to deliver to him the balance of said 205 barrels of flour in the warehouse, but that plaintiffs refueed, neglected and failed to do so, and respondent, after making every effort to get the remainder-qf said 206 barrels of flour without success, was obliged to procure the flour he needed elsewhere. He alleges further that he is informed and believes that said plaintiffs, after delivering to him the two lots out of the 206 barrels of flour, amounting in toto to 40 barrels, sold the remaining 165 barrels, or otherwise disposed of them, to their advantage, and therefore they were not able to deliver any more of the said flour to him after the 16 barrels, and' plaintiffs were unable to comply with his request to dellref to him the remainder of said £06 barrels of flour; that the proceeds of the said 166 barrels of flour sold by the said plaintiffs, or otherwise disposed of by them, should have been oredited on the said promissory note, and he believes and has every reason to suppose that the said 166 barrels of flour were sold by plaintiffs at a price equal to the balance due on said note and plaintiffs received from the sale or other disposition of said 166 barrels of flour a sum sufficient to pay the balance due on his note held by them, and therefore plaintiffs should have cancelled said note and returned same to respondent, and that plain» tiffs have been repeatedly requested to inform respondent what dispe» sition they made of said 166 barrels of flour remaining out of the invoice of 206 barrels after the delivery to him of 40 barrels, anil, if plaintiffs sold or otherwise disposed of same, what was the amount received as the proceeds of said sale, but plaintiffs wilfully and deliberately refused to give him any information regarding the said 166 barrels of flour or what disposition ever was made of same; that he executed and delivered the note sued on to plaintiffs to represent the purchase price of a certain invoice of flour consisting of £C6 barrels, stored for the account of defendant in the Importers Bonded 7,'arehouse; that he never received more than 40 ierre! a of the said invoice, and the said plaintiffs havlr failed and refused to deliver to him the balance, amounting to 166 barrels, cannot demand payment of said note until they have accounted to him for the said 166 barrels of flour. He further alleges and believes that plaintiffs sold the said 165 barrels of flour and received as the purchase price thereof an amount in excess of the amount remaining after crediting him on said note the amounts paid by him as the price of the 40 barrels delivered; that he is entitled to a credit on the note sued on for the proceeds of sale of said 166 barrels of flour disposed of by plaintiffs, and- said credit, together with the credit of $470.00 paid by respondent for the 40 barrels received, wou’d equal the sum in said promissory note herein sued on; that had plaintiffs tendered respondent the 166 barrels of flour on the 21st. day of October 1917, the date when the note sued on was due and payablo, and had he refused en that day to take said 165 barrels of flour and pay said note, then and In that event plaintiffs could have easily sold said flour upon the open market at a price equal if not In excess of the price defendant had agreed to pay for same, namely, $11.75 per barrel, and the same being placed to his account would have fully discharged any indebtedness to plaintiffs and cancel led his obligation on said note; that subsequently, and particularly after the 21st. day of October 1917, the market price of flour in Sew Orleans began to decline, and that any sale after the said date would have to be at a price less than $11.75. He therefore prays for judgment in his favor and against plaintiffs, rejecting their demand, dismissing their suit at their cost, for all costs and for general relief.

To which answer the attorney affixed his affidavit, stating that the facts and allegations of said answer were true and correct, to the best of his knowledge, information and belief.

The only witnesses appearing before the lower court were one of the plaintiffs, Mr. Ferry, and the defendant himself.

Mr. Ferry’s testimony, without quoting it in the main, satisfies us that the documents appended to the transcript filed heroin show that the draft for the full amount of the 205 barrels of flour in question, at the price named, $11.76 per barrel, was sent, with bill of lading attached, for account of the defendant; that the defendant, unable to pay the cash required, finally induced plaintiffs to extend him credit for the full amount duo them as represented by the note sued on; that desiring to relieve defendant of paying the large amount for the entire Invoice, as he had agreed to do, they gave him. the opportunity of taking 25 ¡barrels of this ■ flour out of the lot of 206 barrels, at the/¡rice stipulated, about which there is no dispute, and to do so lathis thirty days; that on one occasion defendant paid for the first 25 barrels, and subsequently, when the other 25 barrels were ready for delivery, net having the ready money to pay for same, he accepted 15 barrels under the same terms and far the same amount; and those things proceeded Until the 26th. of January 1918, when plaintiffs addressed the defendant demanding payment for the balance of the flour, 166 barrels, which defendant did not comply with.

On the 26th ef January 1918, the defandant addressed this letter to plaintiffs;

"Hew Orleans, la., January 26, 1918
"Messrs. Schwarts & Ferry, Hew Orleans, la.
"Gent!emen:
"Enclosed please find check amounting to $290.75, covering your invoice of December 22, -which balances my account with you.
"Yours very truly,
(Signed) "Frank Manfre."

Subsequently, plaintiffs answered to the following effect;

"Mr. Frank Manfre, 2401 Palmyra Street, j Hew Orleans, la.
"Dear Sir:
"Please take notice that on Tuesday, January 22, 1918, at the hour of 1 O’clock, X, representing the firm of Schwartz & Ferry, of Hew Orleans, louisiana, in the presence of two witnesses, shall be at H.0.& H.E. RE., shed H, corner of St. T.ouis and Yillere Streets in this city, there to offer and tender to you the' 280 sacks of Silver Plume Flour which the said firm of Schwartz & Ferry holds for your account, the delivery to be made to you upon your paying the full amount due en your note which we hold, which note was given to represent the purchase price of said flour.
(Signed)"George I. Ferry,
"Representing Schwartz & Ferry.

We have carefully read an the testimony in this cause and we are convinced that plaintiffs have carried out fully their contract with the defendant, and that the fault of non-delivery was that of the defendant, solely and wholly. The indulgences granted defendant and the opportunity given him to pay the amount due plaintiffs were abundant, often extended, and re-extended for defendant's benefit. The truth of the matter, in our opinion, is that he never was able to pay in cash the amount represented by his note, and that when he gave the order for the 205 barrels of flour in question he knew, or ought to have known, this fact. Further than that, we aré convinced that after various promises from the defendant to the plaintiffs to accept the balance of this flour, to-wit, 165 barrels, from timé to time, he was unable, although pretending otherwise, to carry this into effect; so that when finally it became necessary to protect themselves plaintiffs got the very highest price that the market then afforded, to-wit, 310.1 C per barrel, - the market quotation at the time was $10.00 per barrel, - gave the defendant the benefit of whatever they received, and credited his note not only with the cash payments he made but for the value they sold the flour for.

The burden of proof falls upon the defendant, when he alleges the want or failure of consideration of the note sued upon.

Irving v. Edrington, et al., 41 A., 671;
Yowel1 & Williams v. Walker, 118 La., 28;
Scovell v. Gill, 30 A., 1207.
"The party who asserts a change or modification in the contract after it is made has the burden of establishing his assertion."
9th Cyc., Contracts, - page 761;
Romero & Co., 113 La., 111.
"Where, in a contract to deliver a certain thing, no time for the delivery is fixed, the ’egal implication is that it sha!1 be delivered within a reasonable time; from the date of the contract".
Bartley v. City, 30 A., 264.
"A letter may accomplish all the purposes of a default." Woodstock Iron Works v. Co., 115 La., 833.
"The burden of proof was upon the defendant to establish his allegation, as the note carries with it the presumption of consideration. It may be that plaintiff is indebted to defendant, as he swears; but plaintiff denies it under oath, and his denial destroys defendant's testimony."
Christen v. Keiffer, 23 A., 501.
"The judgment of the lower court on questions of fact is presumed to be correct and will, be affirmed on appeal unless it is shown to fee manifestly erroneous."
O'Neil v. Morris, 13 Ct. of Appeal, p. 68.

We have carefully noted the authorities cited us by the attorneys of the defendant in their brief. The first case, of VaM^r* Tounne, which they quote to be founds in 13 A., p. 225, is an error; the same 1b found in the. 13 A., and, in our opinion, has no application to the present case. The same can be said of the case quoted by counsel in the 45th Annual, p. 1289, - Andris Jeachams v. Richard M. Ong: instead of being authority which aide defendant, it is, on the contrary, the law of the case, and is again referred to and approved in the 116th Annual, p. 830, in the oase of Woodstock Iron Works v. Standard Pulley Manufacturing Company; and, so far as applicable to the present oause, is more favor» able to plaintiffs, and of little.help to the defendant.

1919.

For these reasons, the Judgment rehdered by the court a quo is affirmed.

Hew Orleans, January ______


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    By CHARLES F. CLALBORHE, Judge.
    DELIA COLEMAN, WIFE OF STEPHEN HAMILTON vs. BUREAU OF ENDOWMENT OF DISTRICT GRAND LODGE NO. 21 G. U. O. OF O. F., APPELLANTS.
    No. 7415.
    December 9th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

On May 10th. 1918,plaintiff ootained judgment against the defendant for “Four Hundred Dollars with legal interest thereon from Novemher 1st. 1915 until paid and all costs".

From this judgment defendant obtained an order for a suspensive appeal upon furnishing bond "according to law".

The defendant furnished bond in the sum of Six Hundred and fifty dollars.

In this Court, the plaintiff and appellee moves to dismiss the appeal on the following ground:

"That the appeal herein taken should be dismissed because the appeal bond required by law has not been furnished herein. The judgment and interest thereon amounted, at time of motion of appeal to the sum of $450.56 ( i. e. $400.00 judgment and 2 yrs. 6 mos. and 10 days interest thereon at 5¡í ). Therefore the appeal Dond should have been furnished for one and one half times said amount, or $675.84. That the appeal bond that was furnished and filed herein in the court below, as shown by the transcript, was for only $650.00, an insufficient amount".

Article 575 of the Code of Practice requires a bond "for a sun exceeding by one half the amount for which the judgment was given, if the same be for a specific sum".

In applying this article the Supreme Court in 1852 said, in Ross vs Pargout, that the bond must be for a sum exceeding by one half the amount of the judgment in capital and "the interest due at the rendition of the judgment".

"There cannot he any douht that Interest given hy a judgment is part of the Judgment,- and ought to he secured on an appeal as well as the principal sum". 2 La. 85.

This opinion has heen followed ever since. 9 A., 310; 15 A., 333; 22 A., 626; 29 A., 776; 42 A., 290; 51 A., 1058; 112 La., 564; 122 La., 49; 138 La., 1082. In Reynolds vs. Egan 122 La., 49 the court said: "That la firmly fixed in our jurisprudence" .

Our own calculations^and the admissions of appellant^ establish that the amount of the judgment in capital and interest, on the day on which it was rendered, was for

the sum of $ 450.56
one half of which is 225.28
The hond should have heen for ‡ 675.84
But it was for only 650.00
It was therefore short $ 25.84

Nor was the hond good for a devolutive appeal, because the order of appeal fixed no amount for the hond. A hond to he valid must be for the amount required hy law or for that fixed by the order of the Judge. 1 H. D., p 51 No. 6; 2 La., 86; 15 A., 333; 19 A., 507; 22 A., 626; 25 A., 424; 51 A., 1059; 112 La., 564 (567); 116 La., 962.

It follows therefore that if the law had not been changed since those decisions have heen rendered that appellant's appeal must have heen dismissed.

It is also settled that the motion to dismiss an appeal on the ground that the hond is not sufficient in amount as required by law may be made either in the trial court or in the Appellate Court. 22 A., 35; 45 A., 1427; 51 A., 1059; 122 La., 49, 53.

But since the above decisions were rendered Act 112 of 1916 p. 241 was passed. It is entitled; An Act, To regulate the form and effect of bonds furnished in judicial proceedings and to provide for the correction of errors, inaccuracies and omissions in such bonds, etc"..

Section 2 of said act provides. "Shat whenever any litigant in this State shall have furnished in connection with any judicial proceeding a hond and surety, and the said hond is insufficient in amount or incorrect hy reason of errors or omissions therein, such litigant shall have the right to correct such insufficiency, error, or omission in the Court of original jurisdiction, and to furnish new or additional hond and surety conditioned according to law etc.".

Section 3 reads as follows: "That the right to furnish such new or such supplemental or additional hond shall he exercised as follows: x x x if the adverse party, or any other party in interest, shall cause to he served upon hlm^ through the proper officer for service, a notice that such adverse party, or the party in interest, claims that a hond furnished in the proceeding to which he is a party or in which he has an interest, is insufficient either as to form or substance or of the solvency, or because of the pecumiary insufficiency of the surety or sureties thereon, the said party who has furnished such hond shall have thd. right within two days, exclusive of Sundays, legal holidays and half holidays, to furnish the new hond, or supplemental hond, or additional hond above referred to etc.".

Section 8 provides: "That the foregoing provisions shall apply to bonds in cases of appeal, etc.".

Section 9: "That no appeal shall he dismissed, nor shall any writ, or other process he set aside on account of any error in the amount of the hond, or for any Inaccuracy or omission in the hond or for the insufficiency of any surety or sureties, on said hond until the party furnishing such hond shall have failed to correct the error, inaccuracy, or omission, or to have furnished, supplemental or additional hond, or surety or sureties as hereinabove provided".

Section 10: "Tha/t_no suspensive appeal shall bd allowed from any judgment, or order of Court, allowing the filing of any new, supplemental, or additional surety or sureties to a hond, already furnished".

It follows from the provisions of that act that "no appeal shall he dismissed x x on account of any error in the amount of the hond" and that any "litigant shall have the right to correct such insufficiency in amount in the court of original jurisdiction^ "if the adverse party shall cause to he served upon him "through the proper officer for service" a notice that such adverse party claims that the hond furnished, in the proceeding is Insufficient'.1..

^ It has heen held in White vs Maison Blanche, 142 La., 265 that an appeal will not he dismissed on the ground that the appeal hond is not sworn to as required hy Sec. 4 of Act 112 of 1916, when it is not alleged that the "appellant was given any notice hy appellee of the insufficiency of the hond".

We are of opinion that the notice mentioned in the act means a legal notice in the form of a judicial document, and that it must emanate from the Court of original jurisdiction, and must he served hy a serving officer of that Court. The trial Court is divested of jurisdiction over a case, and the appellate court is invested, of jurisdiction over it, only after the appellant has filed the hond required hy law. Therefore the jurisprudence has heen that it is the province of the trial court to inquire vhether such a hond had heen furnished. 7 C. C. App. 490.

In Dumas vs Mary 29 A., 808 the Court said; "The solvency and sufficiency of the surety on an appeal hond is peculiarly within the province of thé Court of original ¡jurisdiction". 122 La., 55; 27 A., 684.

In State ex rel. Gill vs Tissot 34 A., 90 the Court Ssaid "The jurisprudence appears to he now firmly settled lthat it is only after a suspensive appeal has heen obtained fend perfected that the lower court ceases to have further ^jurisdiction over the case".

Authorities :

See also 142 La., 460; 32 A., 1170.

Any other construction would lead to confusion and uncertainty, and involve the appellate court into the examination of facts properly cognizable by the trial court.

Appellee charges however that Act 112 of 1916 is viola-tive of Articled! and 32 of the Constitution and therefore unconstitutional in that the object of the law is not expressed in its title, and the law as amended is not published at length.

The title of the Act is "To regulate the form and effect of bonds furnished in judicial proceedings, and to provide for the correction of errors, inaccuracies and omissions in such bonds, and for the supplemental of such bonds, and to provide for the addition or substitution of sureties on the original bonds and supplemental bonds, and to provide the procedure in each of such cases".

It seems to us that the whole object of the law is fully set forth in the title. The act provides that no litigant shall take advantage of any defect of any kind in any bond furnished in a judicial proceeding before giving notice of the defect to the party furnishing the bond and giving him an opportunity to correct the defect, and provides for the procedures to be followed in each case, 142 La., 265 - and that object is fully set forth in the title.

In State vs Hincy, 130 La., 620 it was said: "It is not necessary that the title of an act should be a complete index to every section of the act; and it is only necessary that it shall, in general terms, direct attention to the purposes of the law and point to one object; and if it has done this, there is no good ground for declaring the act unconstitutional". 48 A., 1094; 119 La., 290; 106 La., 345; 28 A., 199; 140 La., 511; 4 La. Digest p. 604, 609.

Act 112 of 1916 has not for its object to revise or amend any particular law by reference to its title. It is an entirely new act modifying and repealing former laws and jurisprudence on the same subject. 9 A., 350; 11 A., 145; 14 A., 486.

The motion to dismiss is therefore denied.

December 9th. 1918.


author: By hia Honor John St. Paul.

text:
    NO 7415
    MRS DELIA HAMILTON VS THE ORDER OF ODD FELLOWS.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O í 1 II O B.

By hia Honor John St. Paul.

4- — J The defendant la a fraternal organisation having a death benefit feature under the jurisdiction of the Endowment Bureau of its Grand Bodge.

In 1902 Thomas lake, member of a subordinate lodge, took out a death benefit in favor of plaintiff whpm he had raised from childhood and whom he oalled his daughter.

At the time of his death he was in good standing, having paid all his dues to his subordinate lodge to whom under the by laws of the order he was obliged to pay them.

1.

The subordinate lodge failed to ao:ount to the Endowment Bureau and was duly suspended on September 10th, 1915. lake died on October 7th, and the defendant refuses to pay the beneficiary on the ground that suspension of the lodge carried with it suspension of the members.

As we read the by laws, this contention is not well founded. By the first paragraph of Seotion 1. Article 2, suspension of a lodge does ÉW indeed oarry with it suspension of its members; but the seoond paragraph of the same seotion provides that under such MiMittiéi oirsumstanoes the Bureau of Endowment "will protect said members in their benefits when prompt application is made by him to the Bureau as provided by Article 1 Seotion 8 of the by laws."

The last mentioned seotion provides that a member in good standing of a suspended lodge shall have SO days from the suspension of the lodge to enroll himself with the Bureau itself, to the end that he may keep in good standing until the lodge itself be reinstated, or he himself be transferred to a new lodge. And Section 9 provides that hsi failure thus to enroll himself within the time specified shall deprive him of his good standing and thereby forfeit his right to indemnity.

January 1919.

It seems therefore clear that the members of a suspended lodge are protected for full thirty days after such suspension, and forfeit protection thereafter only upon their own failure to enroll themselves as aforesaid.

As lake died during the 30 days within which he was protected, it follows that the defense above mentioned is not well founded.

11.

As a further defense it is said that plaintiff has not shown that she is a daughter of the deceased; and accordingly it is urged that she is not within the class of beneficiaries permitted to fraternal insurance associations by the existing laws of this State; and again that the charter of the defendant limits its death benefits tc the ### widows and orphans of its members.

As to the existing laws of this S&&te, they were passed subsequent to the issuance of the policy herein sued upon and therefore cannot affect its provisions; and as to the charter of defendant, it is not in evidence, whilst the by laws, which are in evidence, contain no such limitations.

111.

Moreover, in the absence of any conflicting claims and of all evidence to the contrary, the fact that plaintiff was treated as his child by the deceased and called such by him, is sufficient proof of his paternity. C. C. -195^'£^^ ^ / /^>6S

The judgment appealed from is correct.

Judgment Affirmed.

Hew Orleans, la,


author: CHARLES P. CLAIBORNE, JUDGES.

text:
    By CHARLES F. CLAIBORNE, Judge.
    HARRIET PROCTOR vs UNITED STEVEDORING CO.
    No. 7416.
    December 9th. 1918.
   CHARLES P. CLAIBORNE, JUDGES.

This is a suit for compensation under the employer's ' liability acts by the mother of the injured employee,

Emile Prootor.

The plaintiff alleged that her son, Emile Prootor, was in the employ of the defendant company, loading lumber in a vessel; that while bo employed, her son was accidentally killed on ship board; she prayed for judgment, under the statutes, for $4.50 per week for 300 weeks.

The defense is that Emile Proctor was not killed, but that he died of "Endocarditis" or "heart disease*.

There was judgnent as prayed for, and the defendant has appealed, - after a vain effort for a new trial.

The facts not disputed are that Emile Proctor was a laborer; that on the day of the accident, he was employed as an extra man to go on the ship to assist in loading lumber; that he was a"green man" in that kind of work, and not accustomed to do it; that he went down into the hold of the ship to engage in the work; that he had been at work but a short time, when he was seen to stagger; before he fell, a fellow-workman went to his assistance, received him in his arms, and laid him down, when he passed away at •once; the lumber is held together with a wire rope hooked around the lumber; it is then suspended, and lowered through the hatch into the hold of the vessel; while going down it swings around, until caught by the laborers and stowed away; it was at the place where the lumbar is caught, and while he was stowing the lumber that Proctor fell and died -; his body was taken to the morgue.

L. Burns, a fellow-workman, was standings about ten ¿L'jfvC/ feet from Proctor when he staggered^ he received him in his arms and laid Him down; a load of lumber was hanging near him on the fall at that tiime; he saw a bruise on the side of Proctor's face, by his temple; he was bleeding.

Proctor's partner at work was Paul Edwards, who is now dead also.

Marcel Me. Manus had known Proctor for over fifteen years; he was always healthy; he saw Proctor after the accident; he had a scar about an inch and a half long on the right eye; he out his blue jumoer over his face and blood stained it; he saw him afterwards at the morgue; his face was covered with a white sheet through which blood was coming.

Aline Parrish is Proctor's sister; after his death, he had a bruise on the right side of his face; he never complained of illness and was a hard working man.

Fred Rainey was a fellow-workman of Proctor's on the ship at the time of the accident; he saw Burns go to Proctor's assistance; Proctor's forehead was bleeding, and there was blood on the lumber; he had a little gash "some way around the temple", "above his eyes".

Plaintiff testifies that her son never complained of any illness; never had any disease or spell; he was always well and hearty, and was a hard-working man; after his death she saw a bruise over her son's right eye, on his right temple, as if something had struck him.

The defendant introduced in evidence the certificate of death of Emile Proctor issued by the Board of Health which reads as follows:

"Cause of Death: Chronic Endo-Carditis, Certificate of Dr. C. Iff. Groetsch, Coroner".

Dr. Edward F. Bacon, in the employ of the Insurance Company, testifies that he helped to carry Proctor's body from the patrol wagon to the morgue-table; together with the morgue-keeper, Mr. Roche, they stripped the body and examined it, inch by inch, to find any injury, and they found none; hence, he concludes death ms caused by endo-carditis; he performed no autopsy; found no bruise over the right temple; there was no evidence of any chronic disease, .or of wasting of the body,

¶. J.. Shanahan, a fellow-workman, said that he saw Proctor when ho fell; he did not see anything strike him, he had a "skin" on his eyes, or. the right side; his load of lumber was there ar.d he wa3 lying right along-sidé of it.

R. liaxwell, also a fellow-workman, said nothing worthy of reostitioji,

Archie Kir.i.sy, also a fellow-workman, did not-see anything hit Proctor; only after he fell "he had a scar on the side of his face; it vías fresh and bleeding a little bit.

Hebert 3. F.oche is morgue-clerk; ho assisted Drs. Paeon end Oroeisch in caking an examination of Proctor's body; he saw ro evidence of injury of any kind on any part of the body, nor of any bruise or cut over the eyes;"Dr. Oroetsch gave the diagnosis as cardiac endo-carditis"; no autopsy was held.

It is true that no witness testifies that fo'*'/ saw anything strike Proctor; but the bruise or out over his eye and the blood, while silent, speak more relit.oly than witnesses. ’■% are bound to assume, as án oxtablished fact, ibat Proctor had a wound over his eye after his death. Seven witnesses, fiye for the claintiff and two for the defendant, testify to that.

Orly two witnesses say they saw no bruises, Ur. Bsoon and Kr. Roche. Fot only the number of witnesses oredomirntes over them, but the character ulso of the testimony: it is affirmative, while theirs is negative. 2 A., 1007; 12 A., 129; 33 A., 799. 800; 38 A., 955; 39 A., 352; 36 A., 84; 40 A., 741; 45 A., 331; 46 A., 570; 47 A., 383; 37 A., 258; 107 La. 402; 30 Am. & Eng. Enc. Law 1071; 2 Evans Pothier on Oblig p. 453; "On the one side it is certain that negative witnesses ought never to be compared with positive. Two nositive witnesses, say all the writers, ought to outweigh a thous- and negative ones".

One of two things is certain: either Proctor 'died of a blow or he died of heart disease. The fact that he died of a blow is supoorted by the probabilities of his employment at the moment of his death, by the witnesses, and by the testimony that he always enjoyed good health and never complained of any illness.

The certificate of death of Dr. Groetsch and the testimony of Dr. Bacon, on the other hand, are only suppositions. Proctor died suddenly; they could find no outward cause for his death, ergo, he died of heart disease. Such a conclusion, without further facts and without a post mortem examination, does not reach us with sufficient authority to overcome the testimony and other circumstantial evidence of the case.

In Stackhouse vs Lendal 7 A., 670 the Supreme Court said that a plaintiff could not recover upon the conjectural opinions of physicians as to the cause of death. See also 13 Ct. App. 165 and authorities there quoted.

The judgment is therefore affirmed.

December 9th. 1918.


text:
    Charles F. Claiborne, Judge.
    LUCY HARRIS BREWER vs L. EDWARD CLARK and LOUIS R. HOOVER.
    No. 7418.
    January 16th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This suit is upon the following note:

$75C. New Orleans, La., November 28th., 1916. One year after date I promise to pay to the order of myself at my office in New Orleans, La., Seven Hundred and fifty dollars, for value received, with interest at the rate of eight per cent per annum from date until paid.
"Signed" L. R. Hoover.
Endorsed.; L. R. Hoover.
" L. Edward Clark.

The facts of the case are as follows.

The defendant Hoover was an attorney-at-law and Notary Public rendering services as such to J. W. Gillman and L. Edward Clark engaged in the sale of oil lots under the name of the "Old Lake Petroleum Company"; it was agreed that all the services rendered by Hoover were to be paid to him by the transfer to him of oil lots; in accordance with this agreement, the said Clark and Gillman, by a document dated November 28th, 1916, acknowledged that they had sold to Hoover 34 oil lots situated 17 in Llississipni and 17 in Caddo Parish for the price of $1020 according to a certain warranty deed; that although the deed showed that the price had been paid, it was however understood that Hoover was to pay the vendors $270 eventually in notarial services to bo rendered, and was to execute a mortgage for $750 cm the 34 lots above mentioned, payable one year after date with eight per cent interest, the payment of which was al30 to be made by notarial services to be rendered by Hoover to Clark and Gillman, an account of which was to be kept and to be applied first to the payment of the note and then to the $270; that in the event the services rendered by Hoover should not be sufficient in amount to pay the mortgage note of $750 "that then in that event the narties of the first part (Gillman &, Clark) hereby agree and bind themselves to obtain extension of said mortgage note, or to pay the same and to collect from party of the second part (Hoover) through notarial services to be rendered them".

Accordingly, on the same day, by act of P. C. Karx, Notary, Hoover made the note of $750 described hereinabove and secured the payment of the 3ame by a mortgage in favor of L. Sdward Clark upon the 34 lots above mentioned. By that act,-all certificates required by law were dispensed with.

By á letter dated December 18th, 1916, Clark authorized Joseph H. 3rewor, an attorney at law, to sell the ebove mentioned'note of $750 for the sum of $600 cash, out of which Brewer was to receive $50 for hie services leaving a net amount of $550 for Clark. Brewer sold the note to his mother, the plaintiff herein, and in payment gave his own check for $550 to the order of I. Sdward Clark. The check was ondorsed by Clark and; paid through the; Cleaning house. 'The receipt . for this check of $550, typewritten on a letter-head of Joseph H. Brewer and signed by Clark reads as follows:

"By purchase price of mortgage note of $750 dated November 28th, 1916, payable one year after date, drawn by L. R. Hoover, payable to his own-order and endorsed by himself & L. Sdward Clark sold this day $600.00".

By a contract dated February 28th, 1917,the partnership of Clark and Gillman was dissolved; Gillman sold out to Clark who took over the assets and assumed the obligations of the partnership.

Plaintiff prayed for judgment in solido against Hoover and Clark, with recognition of mortgage.

Hoover admitted all the allegation? of the petition, and under the document dated November 2.8th, 1916 by which Clerk and G-iliman assumed to pay the note, called Clark in wat rant y.

Clark denied any liability as indorser or otherwise; he averred that being the owner of the note of $750 he sold the same to the plaintiff at a discount of $?,50 ©.50) besides a brokerage of $50 "and merely indorsed the said note in order to transfer respondent's (his) title therein and for no other purpose, and the said plaintiff purchased said note aforesaid dn the faith of the security of said mortgage and the signature of L. H. Hoover; tbe.t' it was distinctly understood and agreed that the purchase aforesaid, and the discount aforesaid, and the indorsement for transfer aforesaid relieved respondent from any liability on said note so transferred"; that the plaintiffshould be restricted to the mortgage, and under no circumstances can he be made liable until the plaintiff has discussed it.

Upon the trial of the case, the defendant Clark was put upon the stand as a witness and asked for what purpose he had put his signature upon the back of the note. To this question plaintiff objected upon the ground that "parol evidence could not be admitted to explain what the note was given for". The objection wgs^st^aine&andf^rk^serve^a bill.

There was judgment agáSnet Hoover ameTClark in solido as prayed for, and in favor of Hoover against Clark.

Clark alone has appealed.

The main question in the case is whether Clark can, by parol, sustain his defense; in other words whether he can show, by parole, that he indorsedrthe note merely to transfer it as a vendor and not as an indorser, and that it was agreed that he was relieved from any liability on the note.-

We are aware of the many conflicting opinions upon this question, hut we prefer to adhere to those which have applied the long recognized principle of the common law and of our own Civil Code as well as of the commercial law relative to promissory notes which forbid, the admission of parol' testimony to contradict or vary written documents except in exceptional cases.

In the 112. the Court said: "Better hy far to rest upon broad orineiples capable of being comorehended by the humblest capacity and esoecially where they have proved so beneficent in their results, than to be forever frittering them away by nice and attenuated distinctions which elude even the most subtle".

In 2 Kent § 556, it is stated to be "an inflexible rule, that parol evidence is not admissible to supply or contradict, enlarge or vary, the words of a contract in writing. That would be the substitution of parol to written evidence under the hand of the party, and it would lead to uncertainty, error and fraud. 1 Greene on Ev § 275, 281.

In 2 Parsons on Notes and Bills, p 601, we read: x x x it is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, or add to, or substract from, the absolute terms of the written contract". 1 Daniel § 717.

"One species of defence, sometimes attempted upon a bill or note, is, that there was some bargain, when the bill or note was given or transferred, for a renewal or indulgence, or for exempting particular parties from being sued. But, it is a settled rule that no such defence can be sunported by oral evidence, where it is inconsistent with the tenor of the bill or note, x x x So in an action against the endorser of a note, evidence cannot be received of a parol agreement by the plaintiff with the defendant, that he should not be held as endorser". Bayley on Bills p 521, 523: Smith Merc.Law p 327; 4 Am.& Eng. En. Law p 146.

17 Cyc p 589; "The general rule is that bills, notes, and ether instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence". 8 C.J. 737.

Thus it has been held in the following cases that carol testimony was inadmissible to prove that the indorsement on the note was placed there merely for the purpose of transfer, or with the understanding that the indorser would not be liable. 6 Peters, 57; 4 Ga., 106; 93 Ills., 101; 37 Ind., 107; 20 Kansas, 230 and numerous authorities there <juoted, -38 Conn., 15; 23 Me., 392(399); 71 Mich., 675 (679) and cases there cited - 72 Mo., 174; 42 Wisc., 56, 487; 27 Barborn 489; 8 Ala., 247; 1 Daniel Neg. Ins. § 719; Abbot Trial Ev. p 415; Bayley on Bills p 521, 523; 2 Parsons on Notes p 23, 521.

In Lee vs Pile, 37 Ind., 107, the Court said:

"The agreement by parpl that the plaintiff should take the note without recourse on the endorser as part of the contract made at the time the notes were indorsed and delivered, could neither be alleged nor proved for the reason that it would be in contradiction of the legal effect of the in-dorsement". 104 U. S. 35

In 17 Cyc p 592 note 30 the following case is cited:

"Where a husband and wife have executed a joint note and a mortgage on her lands to secure it, the husband cannot escape personal liability on the note by setting up a contemporaneous agreement to the effect that he was to incur no personal liability but was to sign the note simply as evidence of his consent to the note and mortgage by her". Jackson vs Jackson, 12 Ky. L. Rep., 388.

Daniel on Neg. Ins. p 704 § 723 says:

"It would be useless to attempt to reconcile the authorities on the subject; but the true line of distinction which should be observed is this: when it appears that the indorsement was accompanied by a transfer for value, and is unimpeached by fraud, it imports a distinct liability,which cannot be varied; but when several indorse for accommodation, or the indorsement was made for any of the peculiar purposes which we have already described, extrinsic evidence is admissible to show them"; in other words to show that the indorsement was without legal consideration.

Sec. 63 of Act 64 of 1904 p 157 provides:

"A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words hiis intention to be bound in some other capacity".

Sec. 67:

"Where a person places his endorsement on an instrument negotiable by delivery he incurs all the liabilities of an endorser".

To permit testimony to prove that Clark was only a transferor and not an indorser would be to contradict the note and vary his legal position which he cannot be permitted to do by parol.

The note was payable to the order of the maker and endorsed by him in blank. This was equivalent to a note payable to bearer. Such a note was negotiable by delivery and did not need the signature of Clark to transfer it. Sec. 9 ® 5 and Sec. 34 of Act 64 of 1904; Daniel § 693, 729.

If Clark had intended to restrict his liability he might have done so by writing above his signature the words without recourse. Sec. 38 Neg. Inst. Act

The fact that the land mortgaged may have been worth the full amount of the note is no argument.to support the defense that the plaintiff agreed not to look to the indorsement of Clark; it might also be an argument to prove that Clark was willing to indorse the note which was so well secured.

Our own examination of the authorities lead us to conclude that a party to a note may show by parol that he affixed his signature to a note under circumstances which carry with them no liability for the payment of it to certain parties such as an indorsement for accommodation, for collection, 8 La.,472, for receipt, 29 A., 551; but where his signature imports a liability under the law at the time it was affixed, he cannot,, by parol/^prove any different character nor any agreement to be relieved from the legal effect of the indorsement, as that would be an attempt to contradict and vary the note.

This conclusion is also in exact keeping with the Civil Law. In the case of Boner vs Mahle, 3 A., 600, the plaint-tiff had sold some slaves on credit, and in order to secure the notes liable gr anted a mortgage upon certain lots of ground -; no vendor's privilege was reserved in the act. The note was not paid and the vendor sued claiming the privilege upon the slaves. The purchaser contended that it had been the intention of Boner and the agreement of the parties to waive the privilege and rely exclusively upon the mortgage. He offered the testimony of the Notary to make that proof. This wad objected to and the objection was sustained. The Court said: p 606:

"It is obvious that the attempt here is to contradict the authentic written evidence of the parties, to give parol evidence against the act. The written contract, by its legal effect, confers the vendor's privilege; by the testimony, the plaintiff seeks to show that the parties intended that no such privilege should exist - to substitute another contract for that which they have in a solemn writing expressed - to establish that they meant one thing but signed another. Let it be observed that the act is not in itself unintelligible. What is written in the act is unambiguous, and the legal effect of what is written is also clear". See also 11 La. 135

The smallness of the nrice paid, if small, cannot defeat plaintiff’s right to recovery. In 27 A., 96 - Scott vs Seelye, it was held that $100 was a valuable consideration for a note of $2600. Brannan's Neg. Ins. p 66.

The defendant Clark was not entitled to notice of nonpayment. Hoover was clearly an accommodation maker and Clark received the consideration of the note. Besides, Clark had no right of action against Hoover as he had bound himself towards Hoover, at least, to pay the note at maturity, The object of notice is to preserve the rights of the indorser against the maker; if he has no rights against him he is not entitled to notice. Sec. 115 of Act 64 of 1904 p 163 s 3.

"Vihen the money raised upon a note is received by an indorser, and he is the person ultimately to pay, notice to him of non-payment by the maker is perhaps not necessary". Jaadey on Rills p 316.

Clark^hav^hg bound himself towards Hoover to pay the note, was properly called in warranty. C. P. 378.

Nor can Clark avail himself of the plea of discussion. A debtor in solido is not entitled to the plea, 3 R., 160, C. 3045, and there is no law which conpelsa creditor to resort to the property of one of two debtors in solido mortgaged for the payment of the debt before calling upon the other debtor.N.O. Canal Co. vs Escoffier 2 A., 830-5m 3 33 Dalloz Rep Leg 308 § 1397-

Judgment Judgment affirmed.

January 16th, 1919


author: By Mb Honor John St. Rani.

text:
    NO. 7420
    OTTO T. HIRSIUS VS CAPITAL CITY AUTO CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By Mb Honor John St. Rani.

Plaintiff alleges that he purchased an automobile from defendant, that he made two attempts to make the car run, hut was unable to do 30; whereupon he returned the car to defendant, and he now sti03 for the dissolution of the sale and the return of the price.

.Defendant set up an excerption of no cause of action, urging in substance that plaintiff has not alleged that the defects in the automobile were non apparent i. e. that they could not have been discovered by simple inspection.

Ihe exception is not well founded, For unless warranty be expressly waived, the vendor warrants the thing sold as fit for the purpose intended. Fee vs Sentell, 52 An 1957. And an auto-'cbi. r in which ^is notprunning condition is manifestly not fit for -he osmose Intended.

It is not incumbent upon the buyer in such case to seek cut, allege and prove jtftijf the particular and underlying cause of the defects which makes the thing sold unfit for the purpose intended; particularly when that thing is a complicated peiee of machinery; it is sufficient if he alleges ana afterwards proves that as a fact such 'defects exists.

On the contrary it is for the vendor in such cases to show that the defects were such as the buyer knew or might have discovered by simple inspection. Otherwise we should have the quaint result that the buyer must give the thing an elaborate and thorough examination in order to show that the defect was not discoverable by a simple inspection; or start an expert investigation into the condition of the machine in order to establish the self evident faot that it did not run.

11.

On the merits ét the oaee involves only a question of faot. She evidence abundantly shows that ths plaintiff was in need of the machine and desirous of- having It, and that in good faith hs made at least two attempts to get It to run; tut although quite competent himself to run it, and also assisted by experts, he was unable to obtain results*

January 23, 1919.

There was no# attempt whatever on the part of defendants te- Who* the nature of the defects in the automobile, and we thevcferw ggr»e with the district judge that the sale should be resulted.

Judgment Affirmed.

New Orleans La,


author: Bji his Honor John st. Paul.

text:
    No. 7421-7516.
    SAVINGS & HOMESTEAD ASS'N VS AUGUST FRANK ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

Bji his Honor John st. Paul.

Shis is a proceeding in ooftourao arising out of a building oontraot. Sha details seem complicated, hut onoe analysed they appear alapl* enough.

On Sept 2nd 1916 August Prank, a builder, contracted, with Sr. Shas H. Gibbons, as owner, to oonstruot a building for $6020, payable in five eqpal instalments. She owner, however, was to furnish all the lumber except the oak floors and the mill work.

Share was extra work done amounting to $162, and the owner was allowed a oredit of $220. for a slate roof omitted; thus leaving a total gross oontraot prioe of $2962.

During the first part of the work Dr. Gibbons paid for' advanced) to the oontraotor in oash $600. to carry on the work. On December 6rd, the contractor received $9D8. through Martin Hanlon, a Kotary Public, and on July 6rd 1916 a further sum of $604. through the same Notary. These were all the payments ever received by the contractor, aggregating a total of $1812, leaving Gibbons still indebted to him for a balance amounting to $1140.

But as there has been deposited^ sum of $940, which as between chemaelves we think belongs to Gibbons rather than to the contractor, we believe that if Gibbons be made to pay an additional $200, the oontraotor will have been paid all that possibly oan be due him. In, fact the thing is self evident; $1812 plus $94Q. plus equals $2962, being the full oontraot price as above stated*

In addition to this Gibbons has not paid for the lumber which he bound himself to furnish. This amounts to $699.44; being rough lumber furnished by the W. W. Carre Co. amounting to $616,44, and- sningles famished by Geo. W. Erechter amounting to $66.60.

On the above mentioned oontract the National Surety Co became surety for the oontraotor.

11

On November 5th, 1915, when the building was about half finished» Gibbons found a purohaser, one Brand, who dealt through the plaintiff to Homestead Association which was finance# the deal for him.

for oonvenienoe the contractor entered that day into a new contract with tho Homestead by which he wasxto construct the building for $4700. payable in five equal instalments, and he was to furnish all the materials including' the rough lumber.

On. this contract Gibbons beoame surety for the contractor. But by a collateral agreement between the contractor and Gibbons it was understood that they were to prooeed under the first contract, and that as before Gibbons was to furnish the rough lumber; and the increase in price($1$80) was to go to Gibbons in consideration of the work'and materials to be furnished by him. Accordingly On November 10th 1915, Gibbons assigned the first, contract to the Homestead, to which the National Surety Co, as surety thereon, consented.

The Homestead made four payments of $940 each, or $3760 in all, through their Notary, Martin Manion; out of which the latter paid the contractor $908 plus $604, equal to $1512, and returned to Gibbons the $300 which he had advanced to the contractor during the work. Shat is to say the contractor received in this way the $1812 of which we have already spoken. The balance of these four payments went to Gibbons or was paid out for his account. .

The fifth payment of $940 was■deposited in court by the Homestead, thus completing the $4700 of the second Contract. This is the $940 of which we spoke before and which we said belonged rather to Gibbons than to. the contractor, since it is ¡clear that as between them the second contract was ### intended for Gibbons benefit and not for that of the Contractor, But this is not worth elaborating, since all that the contractor is entitled to receive is $2952, of which' $1812 was paid him in oash, $940 has been deposited in court, and Gibbons must pay $200 more to make up the amount.

in.

If Gibbons pays the contractor in full hy abandoning the $940 deposited in court by the Homestead and paying an additional $200 to complete the balance due {in all $1140) thu3 reducing by that sun the claims outstanding against the contractor, and in addition thereto carries out his obligation to furnish the rough lumber, by paying the Carre and Prechter bills, aggregating §599.04, then we fail to perceive on what principle of reason or equity the national Surety Co can hope to be released from liability for the further defaults of the contractor; since Gibbons on doing all this will have complied with' his obligation in full, and will himself be entitled to immunity from all further claims by virtue of the obligation undertaken'toward him by the national Surety Co. iJor can the latter complain, since'there is nothing in any act of his {if he comply with his obligations aforesaid) which can in the degree prejudice any right which the Surety Co has or might have had.

IV*.

The court below allowed fourteen claims admittedly due (Tr.p.83), being items 1. !5. 5. 7. 9. 10. 11. 12. IE. 14. 15. 16. X7 and 13 of the -judgment; in addition to irhich it allowed the claims of the Claiborne Avenue Sash Factory for §467.70 {Item 20) and G. Pitarter Sons for §26.20 {Item 2) both of which are no longer contested. It also allowed the claim of C. S. Hartwell Co for §50 (Item 18) and Tinited. Hardware Co for §77.51 {Item 8) which though 3till contested here, appear to us as being clearly due.

For all of these eighteen claims aggregating §2105.87 {interest and costs to be added, as per Stem 27} the court helow gave judgment in solido against the contractor, the Rational Surety Co {surety on the M^eeínd contract ■(?

So far this was correct; but the court failed to adjust the relations between the surety Co and Gibbons. This should havei# been done and we will do it later on.

V,

Mis till of VI. VI. Carre Co for rough lumber, amounting to ¿615«4* (Item 4) was allowed in sólido against the contractor, the national Surety-Co, and C. H. Gibbons. As the Contractor was not to fumlah the rough lumber under the first contract, it is clear that the national Surety Co, surety on that oontrapt alone, is not liable for this bills írank has nót appealed and we cannot concern ourselvep with his liability therefor. But as to Gibbons, we think he is liable.

It is true that the bill was charged and billed to one Globe Backing Co, now insolvent; but it was bought by Brant in consultation with Gibbons, and under some sort of agreement between them which is not made clear. Gibbons claims to have settled with Brand for the veins thereof, but Brand claims that though there was to have been a settlement between them at some time to determine which one owed the other, yet no such settlement was ever had. At any rate neither Brand nor Gibbons ever paid Carre or the Globe Backing Co.

Again- Gibbons was to furnish this lumber under both contracts*; ■ i<l4 . and although the setlmated Cost thereof was approximately only |800, he was allowed'by the contractor the whole difference between the ¿2020 due under the first contract and the ¿4700 paid by the Homestead under the second contract. In other words there was to accrue to him a profit of some ¿900 or more, even after paying the full price of the rough lumber. Of this profit however^ the contractor, the Homestead and Brand were all well aware, so that we have nothing to say thereon; that except that it is a oiroumstanee which tends to show^there must have been some understanding between' Gibbons and Brand, and -this-to corroborate the latter's statement that there were matters requiring adjustment between them, and as to which there has been as' yet no - settlement between them. .

And again in the second contract, Gibbons in his contract of suretyship, very distinctly bound himself "for the payment of all materials and labor already used and to be •■*. re after usefl on said building x x x by the said frank or any o'- er contractor .at workman engaged in the construction thereof", which terms are broad enough to cover the cost of any materials used in eai?. building hy whomsoever purchased, if not paid for by him.

And finally, both 'oy the order given by Frank to the Homs titead on January 12th, 1916 (Ir p. 70) and by Gibbons judicial admission in paragraph 8 of his supplemental answer, it i3 made olear that the difference of $1680 between the two contracts was to be paid over to Gibbons for the- express purpose of paying for the materials which he was to purchase.

Under the circumstances we think that Gibbons Bhould pay this bill; and we do not think that he has ehwon suoh settlement with Brand as would call fdr relief on grounds of Equity, to wit,that he would be paying it twicer.

in.

The Preohter claim for -J-6S.60 (item 5) is in-exactly the same category as the foregoing.

VII.

The judgment below (Item 2E) condemns the contractor, Gibbons, and the Surety Co for &50, attorneys fees, in favor of the Homestead Co. The- Surety-Co is not liable because no such fees are provided for anywhere in the first contract. Gibbons however is liable therefor because by the terms of his contract of suretyship, annexed to the second contract, he expressly agreed to pay them. (Frank, the contractor, has not appealed).

VIII.

The judgment belww (Item) 24) discharges the Homestead and cancels all the inscriptions and liens. This seems correct, since the Homestead has paid all that it owes; and moreover no materialmen have appealed, the only appellants herein being the Rational Surety Company and Dr. Chas li. Gibbons.

IZ.

We think the costs of these proceedings should be borne in equal portions by the Surety Co and Dr, C. I-I. Gibbons since this judgment is largely an adjustment of the> claims between these two parties, and sines each of them is also condemned severally for certain claims In favor of defferent parties.

X.

So recapitulate; we think all the materialmen should recover the amount of their claims from-one or the other of these two §ttt§§ appellants, and our decree is intended to have that result; that is to say;

Sr. Gibbons should pay the Carre claim #515.44; and the Srechter claim, #83.60. He should also pay the Homestead #60, attorneys fees; and besides this he should pay the further sum of $200 with legal interest from July 11th 1916, being the balance due by him to the contractor, he should also pay half the costa of these proceedings.

The Hntional Surety Co should pay the other eighteen claims aggregating #2196.87, and upon doing so (and paying all costs) should be allowed to withdraw from the registry of the court the #940 deposited by the Homestead and should further recover the sum of #200 from Gibbons to complete the amount due by him to the-contractor, and it should pay half the costs.

so Our decree will be framed as in substance and effect to accomplish just that result.

DECEBE.

*£■— It is- therefore ordered adjudged and decreed, that^the judgment appealed from, the paragraphs and items 1. 2. 3. 6. X. 8. 9. 10. 'll. 12. 13. 14. 16. 16. 17. 18. 19. and 20 be affirmed; with the added provision however, that if execution thereon or on any of them issue herein against C. ii. Gibbons, the said C. U. Gibbons shall thereupon be subrogated to the right of the claimant against the Eational Syrsty Co, and may in turn have execution issue for like emount against the said Eational Surety Co, with liberty to proceed by motion and rule herein to that effect.

It is further Ordered that paragraphs and items 4. 5. and 25 be amended by reversing, annulling and striking pit# therefrom any and all liability for said items on the part of the Eational Surety Co .and leaving the 3aid items and paragraphs as liabilities and judgments SGlel eolely against August Prank and OHas H3 Gibbons in solido; and as thus «mondod the said paragraphs -and Items are affirmed.

March 1919.

It .is further ordered that upon payment of the eighteen items mentioned in the first paragraph of this deoree, go nit, items one to twenty, both inclusive (exeppting items Pour and five) together with all the'costs of these proceedings, by the Rational Surety Co, the said Surety Company shall thereupon (and not before) be allowed to withdraw from the registry of the court the sum of $940, deposited therein by the plaintiff herein; and shall thereupon also have judgment against the said hr. C. K. Gibbons for the full sum of $200 ifwo hundred hollars) v/ith legal interest from July llth 1916 and one half of all oosts by it paid herein; save and except oosts of appeal; and leave to proceed herein by motion and rule for such judgment and for execution thereon against said Chas If. Gibbons.

It is further ordered that paragraph and item 22 be so amended that in calculating the limit of liability, of the national Surety Co (fixed at $1600) the oosts of these proceedings shall not be included, and that said limit of $1600 shall be taken to mean $1600 over and above the $940 to be withdrawn from the registry of the court and the $200 to he revovered from C. Is. Gibbons; and as thus amended the paragraph end item is affirmed.

^^It is further ordered that as to all other items, to wit, paragraphs 21. 23. 24. 26. and 27, the judgment is affirmed.

It is further ordered that the appellants herein each bear his own.costs of appeal, and that no account be taken thereof in the adjustment of costs between them.

Hew Orleans,' la


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    Charlea F. Claiborne, Judge.
    BEAUREGARD FURNITURE CO. vs HARRY KATZ & al.
    No. 7423.
   CHARLES P. CLAIBORNE, JUDGE.

This is a damage suit. The petition alleges that the plaintiff sold and delivered to Joseph J. Carbo sundry-articles of furniture for the price of $382, in part payment of which the said Carbo paid $185, leaving a balahce due of $197; that thereafter the said Carbo sold and delivered to Harry Katz "in bulk and out of the usual course of traded the entire contents of his premises 1225 Delachaise Street including all of the property and the merchandise purchased by the said Joseph J. Carbo from petitioner, for less than the sum of $80; that the said Harry Katz in purchasing said goods, wares, and merchandise did not exact any sworn statement from the vendor as to the amount due for said effects, and wholly failed to comply with the laws ■ of Louisiana relative to the purchase in bulk out of the usual course of trade, as was done in this purchase, With the full knowledge that the Baid goods so purchased by him from the said Joseph J. Carbo Were unpaid for, and that he therefore becomes liable to petitioner for the said amount; that the said Joseph J. Carbo purchased the said goods, wares, and merchandise so sold to the said Harry Katz on credit, and that he disposed of same out of the usual course of business with the intent to cheat and defraud petitioner, and petitioner is informed and so alleges that the said Harry Katz had full knowledge of Same"; petitioner further alleged that he had a vendor's privilege on said furniture, and he prayed for judgnent against said Harry Katz for $197.

The defendant filed an exception of no cause of action which was maintained, and the plaintiff has appealed.

V» are of opinion that the petition dieclosea a double oauee of action, one under Article 2324 (2304) of the Civil Code, and another under Act 114 of 1912 p 133.

Article 2324 reads as follow»:

. "He who causes another person to do an unlawful sot, or assists, or encourages in the ccnmission of it, is answerable, in solido, with that person, for the damage caused by such act".

Accordingly it has been held that where the master of a steamer fraudulently assists a debtor in removing bis property out of the reach of a oreditor, with a knowledge of the rights of the creditor, ha will be liable to the oreditor for the amount of his debt. 8 R., 428; 12 R. 20.

It has also been held that where a purchaser of the contenta of leased premises, with a. knowledge that rent is due, removes the contenta,he makes himself liable for the payment of the rent. 2 A., 14. Affirmed in 30 A., 202; 139 La., 411; 47 A., 754; 43 A., 1082; 1 A., 80; 24 Cyc. 1267; 18 A & E. E. of Law p 350.

But the oaae of Seelig vs Dumas, 48 A., 1494, ia identical with the present case. The Court said, p 1498»

"Granting that they (thh contracta) evidenced án abao* lute sale as he (defendant), deolared them to have been, he knew (upon that hypothesis) that a large portion of the price which had been fixed between Theresa Hamilton and the plaintiff was still unpaid and stood secured as to payment by vendor's privilege, and. he deliberately and intentionally, with a view of benefiting himself and cutting off plaintiff's privilege, purchased the furniture, and withdrew it from plaintiff's pursuit xxx he purchased for $1180 and took possession of furniture on which there existed, to his knowledge, at the time of his purchase, a vendor's privilege in.favor of the plaintiff".

Act 114 of 1912 p 135 ia entitled: ^An Act to define «"4 punish certain misdemeanors in trade and commerce, and xxx also to make it a crime for anyone tp purchase goods, wares. or mercfcattiiae on credit and sell» hypothecate, or diepo8e of sene oat of the usual course of business, with intent to cheat or de&amd the vendor or seller; and also &c.".

See*' 2 of the act reads as follows: ‘That whosoever shall purchase goods, wares, or merchandise on credit and shall sell, hypothecate, pledge, or otherwise dispose of same out of the usual course of business and with the intent to cheat or defraud the seller or vendor, shall he guilty of a misdemeanor, and on conviction thereof shall- suffer fine in the discretion of the Court and imprisonment not less than Biz, nor more than twelve months". Saa

By that section it is made an unlawful act for any to purchase goods on credit and to sell the same out of the usual course of business and with the intent to cheat or' defraud the seller; and by Article 2324 of the Code any one who assists another to do an unlawful act is answerable for the damage caused by that act. Carbo certainly committed the ¿I'unlawful act denounced by the Section 2»yif the allegationSof the petition are true, and Katz assisted him. He is therefore answerable in solido with Carbo.

Section 4 of the Act may be. confined, as contended by the defendant, to sales in bulk made by retail merchants. Bub such limitation is intended by Section 2. It establishes a misdemeanor "in trade and commerce" and applies to all wham-soever who shall purchase goods on credit and sell than out of the usual course of business with intent to defraud. The interpretation contended for by defendant would permit a person engaged in retail business to buy movable property on credit, an!* then sell it and defraud the vendor with impunity; in other words, what would ho criminal in one in the retail bueiness, would'be innocent in One 'not in that business. But what the law intended to punish is the nature e£>he orine mare than the quality of the individual aha-in guilt^ 22

The case of Dreyfous vs Cade, 138 La., 297, applies to a sale Jn the regilar course of business and devoid of the charge v of fraud*

It -is therefore ordered tbat-thc judgment be reversed,and that the exception of no cause of action he overruled - ¿^defendant to pay costs of appeal.


author: By his Honor John St. Haul. 3y/ his Honor John St. Paul.

text:
    NO 7425.
    CHARLES BRUNING VS NICHOLAS J. CLESI
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor John St. Haul.

The only question Involved in this csss is whether defendant has earned the commission agreed upon between plaintiff and himself, by procuring a promise of sale accompanied by earnest money, the purchaser having abandoned his deposit and refused to complete the sale, and plaintiff having claimed the forfeit.

She agreement as to commissions was as follows; " I Accept the above offer and agree to pay you for services rendered, SjS". Following this, the words "same being earned and payable when agreement to purchase is signed and offer accepted,* in the prlhted form, were stricken out ex industria.

As the leaving of this clause Unimpaired would have made it clear that the commission was earned in any event, it follows that the striking out of this clause was intended to avoid that very meaning.

Hence we are bound to conclude that the parties meant to oontxaot to aooording^the general principles prevailip^ .in such oases, vis, that the broker has not earned the agreed oopaission unless the sale goes through (provided however tb^f-^hé vendor be not at fault).

De Santos vs Taney, 13 An 151, Jordy vs Salmon Co, 121 La 457,

Loyacano vs Thompson, 4 Ct of App. 345,

Mc Williams vs Lyons, 5 Ct of App. 231,

Sonneman vs Cutter, 10 Ct of App 157,

Haight vs Marrero, 12 Ct of App 37o.

We are therefore of opinion that as far as the contract stipulation of three per cent on the purchase price is concerned, the defendant cannot recover.

At the same time v;e do not read those oases as meaning that in cases suph as this the broker is entitled to no compensation whatever and that^vondor is free to pocket the profits of the contraot resulting from the forfeiture of the earnest money, without paying the broker the value of hVls services,' whatever they may be.

Jany 1919.

On the contrary, the laborer la worthy, of his hire, ana In such cases we think the broker is entitled on "quantum meruit" to a portion of. the commission, having some correspondence to the profit inuring to the vendor.

If such compensation was not allowed in those cases, it was not because the court thought that nothing whatever was due, but beoause the claim was not made, and the court could not make ún allowance on quantum meruit when the party claimed on contract; but it is celar that the parties still had their action on quantum meruit, if they chose to persue it.

The case is the same here; defendant's reconventional demand is based on contract and he must fall; but in rejecting that claim we do not mean to deny him his right of action on a claim for quantum meruit, nnd we affirm the the judgment with that understanding,

Judgment Affirmed.

hew Orleans, La,

On Rehearing.

3y/ his Honor John St. Paul.

A rehearing was granted herein principally for the purpose of correcting an error in the Decree. In a moment of inadvertence we overlooked the fact that the trial judge had allowed the reconventonal demand, whilst our reasons for judgment show that it was our intention to disallow it.

Eut having-heard the case reargued we stil-l adhere to the conclusions heretofore reached. Our decree must however le recast to aocord with the views expressed.

The judgment on the main demand is therefore affirmed; the judgment on the reco.nventional demandáis rejected, reserving however to the defendant whatever claim he may have against plaintiff on quantum meruit for services rendered; the defendant to pay costs of hoth courts.

New Orleans La, April 1919.