author:
CHAHLES E. CLAIBOHNB, JUDGE.
      Wynne S.Bogara»

text:
    Charles F* Claiborne, ^
    LAFAYETTE THEATRE COMPANY VS JUNIUS HART PIANO HOUSE LTD. & al, Appellant.
    No. 8165
    January 2d, 1922.

   LAFAYETTE THEATRE CO. VS JUNIUS HART PIANO HOUSE, LTD. & al., Appellant.

No. 8165

CHAHLES E. CLAIBOHNB, JUDGE.

This is a damage suit for failure to return an organ in he same good condition in which it was delivered.

The plaintiff alleged that some years prior it purchased from the Junius Hart Piano Co.,oneof the defendants herein, a pipe organ and installed it in the Lafayette Theatre; that in February 1913 it delivered said organ to the defendant for the purpose of selling the same, and that defendant stored the same in its Canal Street store for the purpose of effecting said sale; that failing to sell the same the defendant, in May 1914, delivered said organ to the other defendant, William Gallagher, who stored it in his warehouse; that in June 1916 petitioner received said organ from Gallagher; that shortly after receiving said organ petitioner had the same

"examined and found that the said organ had been badly damaged, that many small parts were missing and would have to be replaced; that the lead tubinfe. would have to be replaced, as every tube was broken and beyond repair, that the "metal speaking tubes" had become unsoldered and a number of the said tubes or pipes would hallé to be replaced, that the wooden speaking tubes were damaged and needed repair, that the bellows leather had become ungLued and pulled apart and that to properly repair and restore the organ to the condition in which it was when the said Junius Hart Piano House Ltd. had received it, it would require an expenditure amounting to the sum of $400.00";

that said organ was in good condition when it was delivered to the Junius Hart Piano House Lite, and that the damages trere caused by the gross carelessness of both defendants in oaring for and handling thereof. Petitioner prayed for judgment for $400.00, against the Junius Hart Piano Co. and against Gallagher.

Gallagher excepted that the petitibn disclosed no cause of action, that it set forth separate causes of action against i/T-the defendants without any pri&eity between them, and that the allegation of solidary liability of the defendants was only a conclusion and not a matter of law. These exceptions were referred to the merits.

The defendant Gallagher then answered denying any indebtedness, denying that it knew anything about the contract of 1915 between the plaintiff and the Piano Company; he admitted that on Hay 14th, 1914 the Piano Company deposited with him the separate parts end portions of an organ for which he gave the Piano Co. a receipt, and that he had no knowledge that plaintiff had an interest therein until ¡.larch 25th, 1916 when the Piano Company gave the plaintiff an order on him for the delivery of the organ to the plaintiff; that on April 6th, 1916 he delivered to the plaintiff the several pieces of the organ on the list thereof made at the time of the deposit made with him on Hay 14, 1914, without a single piece missing; that at the time he received the organ it was not boxed; that the storage was paid to him by the Piano Company from the time he received the organ, Kay 14, 1914, to Larch 14, 1916, when he received the order to deliver the organ to the plaintiff. He prayed that the plaintiff's demand against him be dismissed.

The Junius Hart Piano Company denied any indebtedness to plaintiff; it averred that on February 15th, 1913, it v/as employed by plaintiff to take down and remove to its premises plaintiff' organ, which it did, and for which it charged $45';it admitted that the organ remained in its store as alleged, but it denies that it was under any obligations to sell it; that on Kay 14, 1914, it- informed the plaintiff that it could no longer store the organ, and asked the plaintiff to remove it, and that unless this was done,

"your respondent would be compelled to take it down and remove it to somewarehouse and there store it for account of plaintiff and at its expense";

and that when plaintiff failed to comply with its request it took down the organ, and after giving plaintiff notice, stored the organ in Gallagher's warehouse, and on March 27, 1916, gave plaintiff an order upon Gallagher for the delivery to it of said organ; it denied that the organ was in good condition when delivered to it, or that it caused any damage to it; it further averred

"that the said pipe organ was delivered by it to the said Vim. Gallagher & Co. in .rood order and condition",

and it prayed for the dismissal of the suit.

Preceded by a written opinion thg trial judge rendered a judgment against the Piano Company and dismissed the suit against Gallagher. From this judgment both the plaintiff and the Piano Co. have appealed.

In this Court the Piano House filed a plea of prescription of one and three years.

The conclusion at which we have arrived upon the merits makes it unnecessary for us to consider the exceptions of mis-joinder or prescription.

On behalf of Plaintiff, Joseph Jemevine, a drayman, testified that he received the organ from Gallagher and delivered it to the Crescent Theatre; the woodwork and pipes were all broken; he knows nothing about organs.

Abe Seligman testified that he bought the organ from the Hart Piano Co.; that he kept it on the stage for a long time, and then asked Hr. Simmons, Manager of defendant Company, to sell it; Simmons told him he would store it in the third floor of Hart's place and keep it in good order; the organ was "in first class order" when it left the theatre; it went from there to Hart's.

Edward Dennecomp testified that he was employed by the Tulane and Crescent Theatres; he received the organ at the Crescent Theatre; he noticed the tubes were all washed up as if somebody had been walking on them, and some parts of the organ were missing and. broken off; after it sir, unloaded he covered it with a cloth: it was left there

"some little time afterwards when they needed the stage, and it was put in the loft with the rigging";

he received the organ about four years ago, he cannot remember the date; when he received the organ it was not boxed up; it came all-in different pieces on the v/agon, plenty of pieces.

On behalf of Gallagher, W. H. Watson testified that he examined the organ at Hart's store before it was moved to make an estimate on the storage, it was at that time dismantled or taken down; the organ was afterwards sent to Gallagher's; a warehouse receipt was issued and mailed to the Hart Company, he never saw the organ afterwards.

Sam Longo was warehouseman for Gallagher in 191 when the organ vías brought in; he is no longer in his employ; he received the organ; it was delivered in a Junius Hart wagon, and taken into the warehouse by the Juniu3 Hart men; he showed then where to place the parts of the organ; it took two loads on separate days, ¥ay 13th. and 14th, 1914; he made the check lists, one for each load; he checked each piece as it came in; some parts were broken, some bent and others scratched; the organ remainded in the same place in the warehouse rrhere it had been put until ¿Jay 16th, 1916 when it was delivered to the Theatre Company; he was in charge of the warehouse from 1914 to 1916; when the stuff -.vas first brought there, it looked as if it was going to pieces; he nade out triplicate receipts, one for the driver of the wagon, one for the office, and a third for the warehouse record; all alike; he handed one of those receipts to the driver of Hart'" wa.'on; George Jenni-vin's wagon novad the organ for the Lafayette people; at the tine the organ was delivered to Gallagher the lead pipes were bent, that was the only injury to the body of the organ; he does not know how ’.'.any were injflred nor how many there wore in the ornar; about six were injured; some of the veneer on the organ was chipoed off; the Hart men handled the stuff carefully; he did not o.ci.p.'1 any bellows on the organ; nono of uhe stuff vías in-jurod... inGsllagher warehouse. 1 .

':!• K|... (Slatson identifies the, via rehouse receipt, a cony of ■y'-.ich he 'ordered .Tailed to the'iiart Corroanv: when the Lafa-yetwo Theatre Co. called for the organ, he refused to deliver1 it without the produoiion of the receipt he had issued; the Junius Hart people claimed they misplaced it, so they delivered it on a -letter from than; Gallagher did not know that the Lafayette Theatre Co. had any interest in that organ, until they-called for it, and Junius Hart instructed,him to deliver it to them.

London Hall testified that the Junius Hart men who hauled the organ to Gallagher's delivered it into the warehouse; it was put in a comer of the warehouse where noting could disturb it, no one touchéd it until it was delivered to the theatre; at the time it was delivered at Gallagher's there were several pipes bent and others flat; one snail wooden one was broken; the organ was covered with naner:

On behalf of the Junius Hart Piano House, George A. Stocker testified: He is General Manager of the Piano House; the organ was removed from his store to Gallagher's in May 1914 in good condition; while in his store the organ was set up in a condition to play; they had it taken down and moved to Gallagher's; he gave the Lafayette Theatre notice that he intended to move it; his own wagon delivered it; it was not boxed; the different parts were put upon the wagon and delivered to Gallagher in that way; the driver "Of the wagon was George Wycoff who is still driving a truck for them; it was all delivered in one day; the hook-keeper may have received a receipt from Galla^ier's ; he does not know.

Win. Worth testified that he was in the Piano and Organ line;, that the organ was in the Hart Store all set up and intact ready to be shown to a prospective buyer; he was employed by Hart in May 1914; he took the organ down; it was in good condition, no defects; all the pieces were put on a Hart wagon and sent to a warehouse; he superintended the loading himself, the organ was not boxed; they do not box those instruments; he did not actually see every part loaded into the wagon; he was not on the sidewalk, he was in the building on the second floor; he was told as they left the place; he is no longSf employed by Hart; he has a place of his own; he believed the organ was sent to Hart's to be sold there; Hart wanted the room and had witness to take it down and send it to Gallagher's the same day.

Win. Worth, recalled, said that all the pipes of an organ have to be bent, even in their proper position; the factory makes them that way.

George A. Stocker, recalled, says he never saw the receipt the Gallagher witnesses say they sent him; so far as he knows such a document was not received.

It is not enough for a plaintiff to make his case probable; he must make it reasonably certain. We think the plaintiff has failed to establish this essentail requirement both as to the proof of damage by the defendants, and as to the amount of the damages.

William Worth is engaged in the Piano and Organ business; had been with the Junius Hart people for thirteen years, and, at the time he testified, had a place of his own where he did general repair work. He testifies that at the time he took it dorm and apart to send it to Gallagher, in May 1914, it was in "good condition, no defects". This testimony is uncontradicted and must be taken as true, coming as it does from a witness tffiio is disinterested and competent to testify from his practical knowledge of organs. His testimony besides is corroborated by that of George A. Stocker, general manager of the Piano House.

There is no testimony to show that any parts of the organ were damaged at Gallagher's, nor is there any contention on the part of the plaintiff that they were injured while there. Plaintiff is therefore driven to the argument that the different parts of the organ were injured in their transit from the Hart House to Gallagher.'s in March 1914. This is too improbable to believe without some proof of the fact, and there is none to that effect. The Piano House was on Canal Street, and the Gallas^ier warehouse was on Jackson Stfeet, a distance of less than two miles. The organ was taken down by the Piano House enployees, under th iperintendente of William Worth, they were carried directly fyr the Piano House wagon driven by an enployessof the Piano House; the several parts were taken out of the wagpn by Piano House employees, and by them placed in the space allotted to them in the Gallagher warehouse. All these employees were experienced in their business, and, as testified by Sam Longo, warehouseman for Gallagher, "they handled it carefully". The evidence to prove that the parts of the organ were damaged tóien r from conclusive. The substance assistant is that some pipes were bent. To quote his own language:

Q. "In other words, you noticed some parts of the veneer was chippéd off, and six pieces of lead pipe were bent out a little more than the ri^it angle elbow?
A. Yes.
Q. And that is what you made that report on?
A. Yes; that's all I remember".
What is that report?

On one we read:

"7 pos. Pipe - Two pees all bent". "Organ bench - all scratched and rubbed". "The lead pipes are more or less bent". "All in bad condition".

On the other receipt we read;

"22 pcs. pipe - All these pipes are rubbed or scratched". "1 lot lead pipe - one pee wood broken and one pipe broken". All this orgpn look to be in bad condition".

There is no evidence that the organ bench and pipes were not "rubbed" or scratched when they were sent by the plaintiff to the defendant in 1913. There is no evidence that this damage was done by the Piano House. The gist of all the testimony is to the effect that the pipes were "bent". The testimony of William Worth is as follows:

"Well, those pipes, they all have to be bent, even in their proper position when they come out of the key board section, they are bent arid come up to meet the proper connection. They are always bent, the factory makes them that way".

We are bound to believe Worth in his particular braichof business, in which he speaks as an expert, rather than the testimony of two warehousemen who are not shown to know anything about organs and who speak merely from appearances. Every one must be believed in his own particular art.

The testimony of Henry Hecaud is no basis upon which to establish either a case of damage or of the amount thereof. He examined the different parts of the organ on June 1916, three months after plaintiff received them. He says:

"I found the organ to have some parts missing, the lead tubing damaged, and the bellows seemdd to be damaged also".

At that time the organ had been in the possession of the olain-tiff since ?£arch 1916; in the language of Edward Dennecamp

"it was put in the loft with the rising".

There is no proof that at the time the several parts of the organ were sent by the Hart Piano House to Galiaglier, and by Gallagher to the plaintiff, any parts were missing, except the testimony of this witness who is not whown to know anything about organs and who did not put it up. The damages that Hecaud points out might have occurred while the parts were in plaintiff's loft. There is no evidence that the damage occurred elsewhere. There is no evidence that the damage to the bellows was other than the natural wear and tear of an article stored in a warehouse and in a loft for a period of over two years As to the lead pipes Worth testifies:

"I never found them injured ao they could not be put up again".

While Hecaud made his reoort in June 1916 it was not until Karch 1917 that plaintiff filed this suit.

It is therefore ordered that the judgment of the District Court in so far as it is in favor of William Gallagher be affirmed; that the judgment of the District Court in favor of the plaintiff apd against the Junius Hart Piano House Ltd. be reversed and annulled, and that plaintiff's demand be rejected at its cost in both Courts.

January 2nd, 1922.

Wynne S.Bogara»

judge of Div."S." of the Sivil District Oourt. Perish of Orleans,acting,by order of the Oourt of Appeal,la the place of Judge Max Link» 1 spiel, recused.

Lafayette Theatre Sempany, V* Junius Hart Plano Houee, Ltd. & al., Appellant.

HO.8166.

OH HEHBAB1H0.

The judgment of the Sourt a qua was in favor of plaintiff against defendant, Junius Hart Piano Houae Ltd., as pravdd for, and in favor of defendant.William Sallagher, dismissing plaintiff! Suit as to him.

This Oourt, on appeal, reversed and annulled the judgment against the Hart Plano House and affirmed the judgment in favor of William Sallagher. A re-examination of this case satisfies us the oorreotness of our former opinion and deoree.

The evidence falls to establish any demage whatever to the organ during the time it was on deposit with Sallagher. This defendant is,therefore, olearly without fault. Hor is the evidence any more convincing to fasten liability on the Hart Piano House.

While in the custody of the Hart Piano House, in its store and during its removal to the Sallagher Warehouse, the organ was oare-fully handled by men experienced in the business.

The evidence relied on by plaintiff to show damage to the instrument during the transportation nf thereof from the store of the Hart Piano Houee to the Sallagher Warehouse is in the nature of general statements, the burden of whioh merely establishes the general bad condition of the organ. This is a condition whioh would be expeot-ed to be found in a second-hand instrument, whioh this organ was.

The testimony of Heoaud, the expert called on behalf of plaintiff, was based on an examination made some three months after plaintiff had,resumed control of the organ. It is worthless as throwing arty light on the issues involved herein. The organ had been removed by plaintiff, its employees not being shown to have been exper-ienoed in that line of business, from the Gallagher Warehouse to the Cresoent Theatre, where it was first deposited on the stage;and,thereafter, being found to be in the way, was placed "in the loft with the rigging"; where, presumably, as it is not shown otherwise, the examina tion of Mr. He«and was made.

Shore is no mere reason to hold that the damage found by Mr* Heoend occurred during the time of the removal of the organ from the Hart Piano House,by experienced men, to the Gallagher Warehouse, than that it occurred while the Instrument was undergoing its several removals by plaintiff's inexperienced employees from the Warehouse to the stage of the Crescent Theatre and then to the "loft with the rigging." If we were dealing in probabilities, the latter one would commend lteelf to our reason and judgment.

But however that may he, plaintiff has no/eatab listed, with that degree of eertainty required by law, either that the damage te the organ was due to the hegligence of the Hart Plano House or its employees, or the amount of the alleged damage.

for the reasons assigned, our former opinion and decree is re-instated and made the final judgment of this Court.


source: Caselaw Access Project

author: Charles P.Oloibome Jud^o

license: Public Domain

text:
    WM. BREWER AND AL VS N.O.LAND CO. APPELLANT
    No. 8166

    October 16th 1923

   Wa .Brewer «a«i Al fg now Orleans Land Co* Appellant.

Ko.8188

Charles P.Oloibome Jud^o

the plaintiffs sue for the return of tha purchase price they the defendant on the ground that tha defendant had no valid title to tha land it sold to plaintiff.Upon the original hearing of this cc.oetwe oonoludad that the Supremo Court hod decided that the defendant had no title to the land it sold,that we w*r* hound by that decision,and that therefore the plointiffa wore entitled to a return of the purchase money paid by thsra.Frora our decision both parties applied for a rehearing Whloh we fWonted.When this ease was sailed for argonaut on tohearing counsel for tha defendant exhibited to the Court an aot passed subsequent to our decision by wholh it appears that the defendant had acquired the outstanding title recognised by the supreme Court as valid,and said counsel thereupon ached that this ease be remanded to the District Court in order that ho might malee proof of that fact and thus have the former Judgments of the District Court and of this Court reversed.

Plaintiff opposed this motion on the ground that it was too late to offer any evidence in the ease,and that the ease ohould be tried and decided upon the record oo it etood.Shls br'nge up two questions for our consideration.

First i Would the aot exhibited by defendant entitle it tow a Judgment,and la it not itself too late to change the righto of plaintiffs } and Second t can this Court consider the aot and remand thlo ease to permit the introduction of the aot in evidence in the District Courts.

The law ia well settled that a purchaser of property cannot refuse toaoeept title on account of an outstanding title or wortsc'-.ce In u third person when that third parson is ready and willing to satisfy the nortga.se or ratify, the sals 7 La.800» (5 R So0-7 A 477-31 A 106 — SO A J89-21 A SOS Quooesslon of Labosterle 13 Ct.App.31P— 4 hallos tb Hypotheques P.141 -f> IV Mo Ho.0-3 Bolleux 032-16 Buronton a 179 Hltf'baurant C 118-120.

or nay demand a return of lt.-ohon there Is a cloud upon his billot hut the non-ant that cloud is racove La oause of action falls.

An outstanding title oubsequenMicquired hy tho vendor Ingres to the benefit of hio purohaasr-QuualJ.ab vs ! Jinglo Ro.75Srt ht.Ann. and nanercue authorities quotod-18 ;i 189-8258-063 0 La ©fl-lil La 170 10 La 06-3R 233-SSÍ 633-18 A 178 10 A 888-30 A 870-113 La IOC1-11 Row 297-382-320-18 How 88-86-130 0,3.122-280 U.S.842-Par tldas t, 61 BK t 111 law 60-1 Greono EV.S 22-24 C.0.24SC (2427 ) C.iT.lSOO-O.O.

The only question that can arise Is,at what time should tho v-wider acquire the tltleyle it neoesoary that ha should aoq’.lre it before the action of resoAoeion la filed^or is-it sufficient that ho .ihould acquire it at any tine before final judgment is rendered rescinding the sale t

v.e believe that under the following authorities vie are authorized to adopt the second proposition,and that the cause of action of the purchfsW falls,if at any tlne,boforo final Judgment,the vendor’s titlo.snd consequently Msjbaoonas valid.

0,8,804? (S'*4C }* In all eassn the dissolution of the contract ray be deeiandad by suit or by eaceetionjand when tho roaolutif^r condition is an event not depending on tho will of either pupty.iho controot is dissolved of right ¡but in other oases, it ::,.y “'.o cued for, and the party in default may,according to olreunetanooc,havo a further tine allowed for performance of tho eondlti'-no *

In Bouln vo Kyoealino 12 j;,£88 tho Court soldi

But if,before the contract ns annul lad by oóropetent authority,the asilar should acquire tne thing which ho had delivered,

it is the dplnion of ths author that the purchaser would then not have power to cause the sals to be annulledjbeoause every obligation on the part of the vendor would be fulfilled) the purchaser acquires tho property In the thing sold ao well as the ^ontraot^ptands^ fully executed;0

oaso of '.ifatsdn 13(/La 378 was • a suit to rescind a sale oí' real estate for non-payment of tho purohasa price. X^X X Defendant failing to answer,plaintiff caused a default to bo entered; and then the defendant nade to plaintiff a tender of payment In full, including costs of Oourt.Plaintiff refused to aooept,assigning as hlo reason that an offer of performance comeo too late after a putting in dofault*.

The Court said on ¡-'.408 i

• That where the resoluticjpcondition has been expressly stipulated and tatas place of right,the purohaoor has until official demand in which to payjbut vhejje 1$, is only implied and tatas Rjaoe only to payP-PlaiHWff *0 /\ suit was accordingly dismissed.See also 119 La 80-31 A 184 (189) 34 A 989 <99l)-2 11.8.808.

Via see much analogy between the Watson oaso and this one.If the vendee has until final judgment in which to pay in, order to ovoid resol oslen of ths sale for aon-paynent of the prioe,it would eeem that tho vendor would enjoy anual time to pay or to perform his obligation to secure to the vendee a valid titlo/iuch is ths opinion of rasny.French commentators on artlole O.P.1S90

In 8 Bollaux on Art»G.H,1699 P.632 we roadi* What should nevertheless bo decided If ths ratification had taken plaoe only after the suit in nullitytOn one hand it may bo said that tho sale la void ahstnitioj that it ought not be in the power of the vendor,as it may be agreeable to him or not,to set aside or to allow the nullity to subsist by making arrangements with tho real owner,that there arose a vested right In the» purobaser from the nemant iua fensuXated HI* aamand-Artialo# H84-1B5B and 1081 ««<** to us t© present paranptory «rgwants against that system}in faot there rstviX.:' from timo aítiole*,tbat if tha rsaolaalon of a sale la demanded tec? failure to pay tha prioe,and that before tha Judgment,the defowlr.itó fulfil la hla obligations,the Judge la net hound to admit Me fisaasiSo «fay then afaould ha prora himself aera aerara towards the render,!? 1 he faaa brought about tha oaaaatlon of the eausa of aotlontWhy &mr¿W a oontraot ha annulled the rloa of wMoh has haan purgad by poeto?,its* elretsoataaoes which aaeura lta sfflosojrfifo must before all adhero to tha spirit of tha law,*

7 Dements P,«l B 88 81a XVII.

In oritioialng a deoieion of tha Court of lyona wfaloh had hold th&ft tha ratlfloatlon rust ha of data anterior to tha suit Delrinoeurt in Vol 3 P.13S aayst*It aaama therefore from this that tha dooirfKC established by the desleían under consideration la contrary to the spirit of tha code*» and to good faith,which Should he the soul o? all contrasts} and I think that In all eases whsi-o the danger of ^eviction Ms oaasad,either haosusa tha render ho* bsoeme the hais? of the owner,or haoauaa ha has adjusted Ms rights with him or beeause tha purchaser faaa proscribed,the> nullity of tha sale can no longer ha pronounsod,on aooount of tha want of interest of the purohaeer*

"She nullity of the sale would ha equally oorerad,lf the Bubesquant to tha sale,should beooma the owner of the thing sold, either by buying It from the real owrsor,or by ouooeaeion (donation or logaoy.* 4 Dallos Codea. Dolt os Hep Lag.lC7 Ho.S21-idem BUpp Vol.la P.888 S £44^3 Baudry ?.S% «6 BcileSX F.6S8 18 Duronton P ,106-10 Id.P.480-8 Karcade P.B17-1 Trop Vente P.34S_y / z. S$¿/¿ 6 Tcull S '158^'the certainty that he la «eposed hereaf^OT to no trouble either boa cause the party stipulating has become the owner or because the real owner of the thing has scoeded to the oontraot by ratifying It,or by renouncing to avail himself of Ms rights* . All fear of eviction ceasing,the rescission of ths oontraot oeaeos to be a useful remody.zt is hereafter without intereat.V'o oven think that the third party is always in time to ratify,and tho party promising to become incontrovertible owner before the nullity of the oontraot ie de finitively pronounoed were it even after tho first suits.Because roeoleoion and it ie in truth one,lo pronounoed only la the abeenoe of executlon;henoe at the moment when it would be pronounoed,the execution of the oontraot would bo assured,supposing that all things in other raspeóte ware wholo.lt would be from that moment without objeot,except the question of coats spent in the suit.

Some authors nevertheless,require,but with more rigor than justlos,that the ratification of the third party and the ownership of the promisor should be (Ulterior to ■ tho demand-®

84 Laurent S ISO P.124»

■ The real difficulty 1* this!tho purohaeer files hie suit and during the pendency the owner rutlfle«|we suppose that there ie no other oause of eviotloniwill the action of nullity be suspended by the confirmation of the ownerT
There la a controversy;in our opinion the notion falls as soons ae the owner ratifies;in truth,from tiy< moment,all danger® of eviction osases and that ie the reason for deoiding.The objections that are made are not serious,®

1 Duvergler P.268 f

* M.Delvinoourt has demonstrated that the action la nullity cannot be entertained,even when it la posterior to the time when it was filed that the property was aoqulred by the vendor-"

We ore therefore of the opinion that if the defendant has aoqulred a valid title to the land it sold to plaintiffs at any time prior to this day that the title so aoqulred Inured to the benefit of the plaintiffs atad that their oaune of notion has oeased to exist.

She relative position of the plaintiffs baa not changed,and there is nothing this day which would wake it more onerous for them $• accept the title now than At the time of their original purchase^, nor tea the delay in perfecting: the title caused than any damage* XX the Law end the Juriapcu&enoe make it the duty of the Court to remand a paso when the ends of Justice require It*

o.p.soe *But if the Court shall third: it not possible to pronounce definitively on the osuna,in the state in whioh it is,either because the parties have failed to produce the nscoseary testimony» or because the parties have failed to adduce the necessary testimony or because the inferior Court refuse to raoeive it or otherwise,It may,according to qlrounetoncos remand the cause to the lever Court vlth instroutiona os to the testimony which it shall raoeive,to the // end that it may deoide aeoor&lng to lav.

In the ease of Melanoon’s Heirs vs Duhamel.

7 l.a.200 the Court Bald I*

"The execution of a oentraot according to its tensa,and the In* tantion of the parties,is doto consonant to Justice,lav and equity than the rescission of it,and a condemnation in* damages,provided the contraot or matter 1b still entire and there has bam no ohang® in the situation of the parties,®

It has been held that a oa.se will be remanded when a party to the suit through oversight or otherwise^ has omitted to introduce and file necessary avldenoe In his possession.! 1m Dig,S437-71S»?20 specially 130 ha 736-136 l.a a29.

■v.hen the record/ of a suit disoloses enough to satisfy the Court that the whole story of the oaso la not told^that essential foots have not been given in ervidenoo,and important documents have been omitted,and that substantial justice cannot be done between the parties in the state of the record as filed hero,the court will in its dlsoretion,ln the interest of Justice,remand the «^use»®. ,. Idem P,639 e 729.

This prinoij¿$ applies with mors foros whan the object in to offer material evidence which has developed einoo the Judgment of the District Court,

In the oase of Schneider va Etna Life Ins co.30 A 1196 the plaintiff obtained a Judgnent for $3000,00 representing the amount of a policy on the life of her husband who^she alleged^had died.

lile defendant appealed.In the Supreme Court,after the filing of tho transcript,it produced affidavits and other evidenoe establishing the existence of the husband.The Court admitted the evidence and re* landed the case for hearing the question of existence or death of the husband.

In the case of St.Charles St.ilUD vs Hoard of assessors 61 A 469 the Supreme Court admitted evidenoe of payment of tho money demand by the plaintiff.

The application of the defendant in this case to prove that it has acquired a title to the land sold by it to the plaintiffs is equivalent to a plea of payment.Payment does not nean^n Civil law, only a satisfaction of a money olaim.lt has a more extended meaning C.0,3131(8127 )- 0 By payment is meant,not only the delivery of a sum of money,when suoh is the obligation of the contract,but the performance of that which the parties respectively undertook,whether it he to give or to do.* 2 A 24 Pothler on 0blig.P.2.'9 fi 494 . " iayment is the performance of an obligation to give or to do."

Vie are therefore of opinion that the defendant is entitled to have tho oase remanded for the purpose of admitting the proof of its lately acquired title and examining the effeot thereof upon the claims of plaintiffs herein.

It is therefore ordered adjudged,and decreed that our former Judgment herein be set aside,that the Judgment of the District Court bo reversed and avoided,and that thlB case be remanded to said Court solely to receive proof of the acquisition of title by the defendant to the lands in controversy and to render Judgment upon the testimony and evidenoe In the present record and upon suoh further testimony and evidenoe to be produced by the defendant on the new trial herein ordered,the Costs of the District Court and of the Court of Appeal, up to this date to be paid by the defendant and appellant.

October 16th 1922


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge,
    WM. BREWER ET AL VS N. O. LAND CO., Appellant.
    No. 8166
    may 22d, 1922.

   W. BREWER ET AL VS N. 0. LAUD C0.; TO UU., Appellant.

Ho. 8166.

CHARLES F. CLAIBORNE, JUDGE.

AJ. This is a suit by three purchasers against their vendor for reimbursement of the price paid, on the ground that the vendor had no title to the lots sold..

By three acta dated November 6th, 1914 the defendant Company sold to the three plaintiffs herein lots 11, 12, 13, 14, 15 and 16 of Square 286 on the map of defendant Company, measuring each 25* front on Conti Boulevard by 122' deep, in the square bofinded by Vicksburg, French, and Germain Streets. According to said three acts, the price of sale to each one of the three plaintiffs was Five Hundred Dollars cash or Fifteen Hundred Dollars for the three. Subsequent to said sales, the Supreme Court of this State, in the cases of the Leader Realty Co. vs Lake View Land Co. and same vs New Orleans Land Co., 133 La. 646, 142 La. 169 and 248 U. S. 550, decided that these lots were the property of Leader Realty Co. Hence this suit,. See also the cases of Leader Realty Co. vs Lake View and N. O. Land Co. No. 19456, Supreme Courts 133 La. 646; and Leader Realty Co. vs same,No. 20818 Supreme Court, 142 La. 169.

There was ju’ it for plaintiffs in this suit condemning the defendant to pay^each of the plaintiffs the sum of $680.75. This jud^nent, save as to amount, was correct. 27 A. 489, No. 7132 Ct. Appeal, Puyoulet vs Gehrke; No. 7133, Ct. Appeal, Talbot vs N. O. Land Co. O. B. 53; 143 La. 263; Bouvillain vs Bodenheimer, 117 La. 793; 18 A. 324.

But it is contended by the defendant that the lots in question are included within the lines of the Terascon Grant according to a plan made by S. E. Calongne, Civil Engineer, and that the validity of said Grant has been recognized by decisions of the Supreme Court of this State in the cases of State vs N.O. Land Co., 143 La. 872, and Brott vs H. O. Land Co. decided February 27d, 1922. It may be so, but the fact remains that the decision in the Leader Realty Co. covers the lots herein. The lands claimed in the Leader Realty case were, among others, lots 7 of Section 17 in Township 12 S. range 11 E. Mr..Calongne was asked

"whether or not the lots in question, according to United States Government survey (Zulokowski nap) are not located in lot 7 of Section 17 Township 12 South Bangs 11 East",

and he answered:

"they are".

This is sufficient. The plaintiffs in this case cannot be required to engage the Leader Company in another litigation concerning the title to these lots. It is sufficient for them to show that there is a judgnent declaring that the title of their vendor has been divested by a judgnent.

But the plaintiffs cannot recover more than the erice which appears to have been actually paid by them to the defendant, according to the various acts of sale to them. This is $500 cash paid by each of the three plaintiffs. This is a suit by the vendees against the vendor; no third person is a party to this suit. As between them

"neither shall parol evidence be admitted'against or beyond that is contained in the acts, nor on what may have been said before, or at the time, of making them, or since". C. C. 2276 (2256) "The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery". C. C. 2236^(2233).

In the case of Clark vs Farrar, 3 N. 247 (251) the Court held that parol testimony that sundry expenses made by the sellers were to be reimbursed to them

"over and above the purchase money"

was not admissible. Anything in the testimony of A and B

"which has the tendency of adding to, or altering the written conditions of the contract of sale, is viewed, by this Court, as if it had never been received".

An oral agreement by which the purchaser was to reimburse to the vendor the surplus price for which he might sell the property is not admissible;

"it makes no part of the written contract between the parties, and parol evidence^in its support". Hart vs Clark, 5 M. 614.

In Berthole vs Lace, 5 M. 576 (592) the Court refused to admit parol testimony that a sale purporting to have been made for $1000 had in reality been made for $100.

"He (defendant) attempts to show by parol evidence that another note of $1000, of a date anterior to the deed v/as given as part of the purchase money. This cannot be done &c". Harrison vs Laverty, 8 M. 213 (217); Goodloe vs Hart, 2 La. 446:
"A purchaser of slaves who has given his note in payment cannot prove (by parole), a condition different from that expressed in the deed of conveyance".

The plaintiff who sold her property to the defendant for $100 cannot establish by her testimony alone that there was

"another and further consideration, to-wit: her services, which, she alleges, are worth $500". Girod vs Vines, 23 A. 588.

The precise facts presented in this case existed in the case of Formento vs Robert, 27 A. 489. In that case a purchaser annulled a contract of sale for fraud, and attempted to fecover $3300 the price paid by him. The Court said:

"The parol evidence adduced by plaintiff to prove that the price paid by him was $3300 instead of $2300, as stated in the authentic act of sale was properly excepted to by the defendant. 0. C. 2236, 2276".

The act of sale expressly reciting the consideration to be $3782.36 the purchaser could not show by parol that the real consideration of the sale was a number of taxes exceeding in amount the price stipulated in the deed of sale. Chaffe vs Ludeling, 34 A. 967.

Parol is not admitted to prove that a mortgage note of $.,. _was given not for money loaned but for delay and supplies. 37 A. 203.

Written evidence alone can be admitted to show that the consideration was different from that stated in the act of sale. 116 La. 666.

In a promise to sell real property the price could not be changed on the verbal testimony of the promisor. 116 La. 141.

Although the parties to a sale could not prove'by parol that the terms of sale were different from those mentioned in the act, a third party could. Bank vs White, 145 La. 54.

In Evans'Pothier on Obligations, Yol. 2 p 159 he quotes:

"So it has been held that no evidence could be allowed, that an agreement for a lease was to include more premises; or that a greater rent was to be paid than was actually expressed. 3 Wils 275; 2 Bl. Hep. 1249 and 1 Yes. 211".
"The statemént in a contract of sale as to the price paid or to be paid by the purchaser is an essential part of the contract and hence it cannot be varied or contradicted by parol". 22 C. J. p 1118 & 1476.
C. N. 1341; 19 Laurent 1 472; 33 Dallos Eep. p 10054 4715, 4719.
"La preuve testimoníale est irrecevable-, conformement a notre article, lorsqu'il est allegne que le prix d'une vente on d'un tail eat superieur ou inferieur a eelui qui eat fixe dans l'aote". 5 Laroiabiere Art. 1341^27 p 26; 13 jSaudry-Lác p 856 , § 2566.

The objection of the defendant to the introduction of parol to prove that the sale was in reality for $606.67, and for interest paid by them $34.85, and for taxes $17.63, making a total in excess of $500 of $159.15, should have been sustained. As each plaintiff recovered judgment for a similar amount, the judgment must be reduced $159.15 each.

It is therefore ordered that the judgment in favor of vrach plaintiff herein be reduced from Six Hundred and eighty 75/100 dollars to Five Hundred and twenty-one 60A00 dollars, with five per cent per annum interest from November 6th, 1914 till paid and all costs of the District Court, and that the costs of appeal be paid by the plaintiff and appellees-; that after payment of this judgment by the defendant, the three sales dated Nobember 6th, 1914 made by the defendant to the plaintiffs herein William Brewer, Thomas E. Ryan, and Jas. G-. Sullivan of the six lots Nos. 11, 12, 13, 14, 15 and 16 of square 286 on the map of defendant company, measuring each 25' front on Conti Boulevard by 122' deep in the square bounded by Vicksburg, French,and Ger-main Streets, be rescinded and annulled and the registry thereof in the Conveyance Office be cancelled.


author: Honor John 3t. Eaul.

text:
    NO. 8166.
    WM. Brewer, et al. Vs New Orleans Land Co.
    State of Louisiana Court of Appeal Parish of Orleans.

   OEXHIOB.

By Mb

Honor John 3t. Eaul.

After examining the record we have no douht whatever as to our having jurisdiction; and accordingly wo must decline to certify that question to the Supreme Court.

I.

The case la simply this; Throe a. -oral plaintiffs entered into what they tena a joint agreement, hut whftoh the documenta annexed to the petition (and others on fils) show to have been three several agreements, hy which defendant sold to said plaintiffs severally three several portions of land; each paying severally the prioe of his own portion. To whioh portions of land (it is alleged) defendant had no title; whereupon the three purchasers, instead of filing three seperata suits (as they had the right to do) filed one joint suit, each claiming the return of the price paid hy himself; towit, each claiming less than $2000, hut the aggregate of their claims exceeding that sum.

II.

Consent oannot give jurisdiction rations materias; henos, several plaintiffs, each with a olaim helow the jurisdiction of a court, hut hr ring no necessary oonneetion with sack otilar and no common causo of action, cannot by joining thair demands create a caso within that jurisdiction; nor can one plaintiff do so, by joining in one action separata claims, each below the jurisdiction of the court but against several def .'.sdants without necessary connection between them.

Boulden vs Hughes, 8 Martin N. S. 285.

State vs Judge, 105 La 333

Tague vs Insurance Companies, 38 An 456

The fact is that plaintiffs have, in effect, simply consolidated (by suing jointly) three suits whioh might, or even should, have been filed separately. And, "The consolidation of suits, aaoh of which is below the minimum amount for appeal, does not confer appellate jurisdiction, oven though the aggregate of the demands exceeds the amount necessary for appeal." See la. Digest, Vol 1 p. 286 (verbo, Appeal; Section 58), and authorities there cited.

A certificate is therefore denied.


author: Dinkelspisl; J.

text:
    NO. 8773

      COURT OF APPEAL PARISH OF ORLEANS.
    JACOB FALLO, INCORPORATED versus CHARLES DURR.

   Dinkelspisl; J.

Plaintiff suss for s commission ae re-: 1 cst-.-ss agenta ^xl1 amongst other allegations, allege th-.t on or about June 15zh, 1330, defendant granted » written ¿uthcrizetion in f^-vor of Fallo & Short, ths latter transferring all right in said contract to plaintiff end that plaintiff had the sole right to sell defendant's property at 1543 Exposition 2oulev..rd, in the City of ITew Orleans, for ths prioe and sur.1 of Seventeen Thousand Dollar.^tjid going on to allege further that the authority so to sell was in full force and effect for a period of twenty days from June lSth^ and thereafter unless ssid agreement is revoked by thirty days written notice giving an exclusive right to 3ell the property in question,or if said property is sold by anyone else, nevertheless they would receive their commission of fare's per cent and further alleging Shit ixxxx their predecessors Fallo & Short advertised s..id property, interest sever...! parties, emongst them being a hrs. Elizabeth 0. Pegand, who finally purchased the property;further that their authorization was in full force and effect but thxtxx that defendant in violation of said agreement and knowing full well th-.t the purchaser secured by him was the s<use whom plaintiff had seoured, sold ths property to the lady, lira. Pegr.nd within the time of the contract end therefore plaintiff was en-tltltsd to their comission in the sum of Four Hundred Fifty Dollars, with interest and costs^ end prayed for general relief.

To this petitioner there wes filed ths exception, fir3t that the petition is too vague, general and indefinite to permit respondent to safely answer thereto^ e,nd second, exceptor further pleads the exception of no right of action^and of no cause of aofion.

On the trial of this oase, the exception of no cause of action wa3 maintained and from this judgment there is this appeal. The questions presented are neither new nor novel; the x^atition oon’;5ini3 sufficient allegations, if true, and for the purposes of e■ suit they are taken for true, to entitle plaintiff to he hecrd on th = merits of rhie o-se and we do no 5 think that this oo.se should go off on E.n exception. It nay he possible that on the tri:l of this cess, plaintiff will not be able to substantiate fp.ots alleged, but to hold that on an exception sane should bs thrown out of Court without further trial or hearing, we are satisfied ie not ptr.rissE.ble.

In a esse recently deoiled by this Court, the very statements end allegations in the petition, on similar exception, was Jeci led sxaxaiy' adversely to the defendant and it was there heldl

"An exception of no o:.U3S of action 3hculd never be sustained unless it be cert-in tint the plaintiff can recover nothing on his claim; if che ol. i.a be only doubtful the exception should be overruled and the c:..3e heard on the merits."
Jacobs Candy Co. vs. Dennis Sheen Transfer Co. No. 8150, Court of Appeal.
And there cited, 9th Orleans Aopeals; 119 Lc-. 106; 133 La.. 831.
"An exception of no oause of action should not bs sustained when a judgment of some kind, however small oould bs legally rendered on the allegations supported by evidence."

Davis vs. Arkansas Southern R. R. Co., 117 La. 320.

For the reasons assigned it is ordered, adjudged end decreed that the judgment appealed from be reversed and the exception of no cause of action overruled and the ca.se remanded for trial on the merits, according to law; defendant to pay the oost of this appeal and the other costs to awe.it final judgment.

Judgment reversed and oase remanded.


author: CHARLES F. CLAIBORNE, JUD®.

text:
    Charles F. Claiborne, Judge.
    GEORGE BAKER, Appellant vs WESTERN UNION TEL. CO.
    No. 8174.
    January 2nd, 1922.

   GEORGE BAKER, Appellant yg V®STERN UNION' TEL. CO.

No. 8174:.

CHARLES F. CLAIBORNE, JUD®.

This is a suit by an addressee for failure of the Telegraph, Company to deliver a telegram to him.

The plaintiff alleges that a telegram was sent from the office of the defendant Company at Biloxi, Mississippi, addressed to him at his home in the City of New Orleans, in the following words:

"Mother very si ok, oome at once";

that said telegram was not delivered to his home; that he was informed only on the next day by telephone of his mother's illness; that he left the City by the first possible train, but arrived in Biloxi after his mother had died; that if he had received the telegram in time he would have been able to reach Biloxi before his mother's death; that in consequence thereof he suffered poignant grief and sorrow for which the defendant owes him $2000.

The defendant excepted that the-plaintiff's petition disclosed no ri^it or cause of action.

The-exception was maintained, plaintiff's suit dismissed, and he has appealed.

Plaintiff's cause of action is designated in law as "mental anguish". Under the jurisprudence of Louisiana it is recognised. 109 La. 1030; 112 La. 1085 (1091); 118 La. 447;(452); 119 La. 72; (82); 120 La. 1010 (1025); 144 La. 724 (730); 116 La. 1020; and specially Graham vs Western UniSn Telegraph Co. which is identical with this case.

But the common law and the Federal Courts recognize no. right of recovery for mental pain, anxiety, anguish or suffering, or injury to feelings alone, - when unaccompanied, by injury to person or property, health or refutation. 144 La. 730. Southern Bxpress Co. vs Byers 240 U. S. 615; 44 Fed. Rep,. 554; 126 Fed. 295; So. Law Quarterly, April 1917 p 158; 31 Cye 1712^- / J

By Act approved June 18th, 1910, Congress amended Section 1 of the Interstate Commerce Act of 1887 as follows:

Section 1: "The provisions of this Act shall apply to xxx telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one state to any other state, territory, or district of the United States or to any foreign country, which shall be considered and held to be common carriers within the meaning x x x of this act".

In Western Union Telegraph Co. vs Pendleton 122 U. S. 347, the Supreme Court said that a statute of Indiana regulating the delivery of messages by telegraph companies was in conflict with that clause of the Constitution vesting in Congress the power to regulate commerce.

In Western Union Telegraph Company vs Commercial Killing Co. 218 U. S. 406, the same Court said:

"Intercourse between the States by telegraph is interstate commerce",

and affirmed the Pendleton case. This decision was rendered in 1910.

In that case the Court quoted from 169 U. S. 133 the following language:

"So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and are a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits", p 418.

In Western Union Telegraph Co. vs Brown, 234 U. S. 542, a message was delivered, to the defendant in Carolina addressed to the plaintiff in Washington, purporting to inform him that his sister had died that morning. The message was never-delivered. Th'e plaintiff sued for mental anguish under a -statute of Carolina. The Court held that the statute was objectionable as an attempt to regulate commerce among the States, citing the Pendleton and Commercial Milling Co. cases.

The Postal Telegraph Co. vs Warren 251 U. S. 27 involved the validity of a law of Mississippi denying the right of a telegraph Company to limit its liability unless the message was repeated. The Court said:

"But we need pursue the subject no further, since, if not technically authoritative™- controlled, it is in reason persuasively settled by the decision of the Interstate Commerce Commission in dealing in the case above cited (Clay County Produce Co. vs Western Union Telegraph Co. 44 I. C. C. 670) with thewery question here under consideration as the result of the power conferred by the act of Congress of 1910; by the careful opinion of the Circuit Court of Appeals of the Eighth Circuit dealing with the same subject (Gardner vs Western U. T. Co. 231 Fed. Rep. 405); and by the numerous and conclusive opinions of State Courts of last resort which in considering the Act of 1910 from various points of view reached the conclusion that that Act was an exertion by Congress of its authority to bring under federal control the interstate business of telegraph companies and therefore was an occupation of the field by Congress which excluded State action". Quoting numerous authorities.

In addition to the cases quoted by that Court, the counsel for the defendant has quoted 174 S. W. 552; 192 S. W. 70; 93 S. E. 465; and 96 S. E. 248.

In Western Onion Telegraph Co. vs Speight advance sheets of the United States Supreme Court reports volume 254 No. 1 p 17, the plaintiff sued

"for mental suffering caused by a mistake in delivering a telegraphic message"

reading:

"Father died this morning; funeral to-morrow 10.10 A.M.".

The message was transmitted through Carolina and Virginia.

The Company defended

"on the ground that the message was sent in interstate commerce, and that therefore a suit could not be maintained for mental suffering alone. Southern Express Co. vs Byers 240 U. S. 612".

The trial judge ordered a non-suit, which was affirmed by the Supreme Court of the United States.

IN Western Union Telegraph Co. vs Holden, 174 S. W. 552, the Court said that statutes permitting recovery for mental suffering for delay in delivery messages were void as attempts by the State to regulate interstate commerce.

In Western Union Telegraph Co. vs Lee 192 S. W., the Court rejected plaintiff's demand for damages for mental anguish for failure to deliver death message, the Act of June, 1910 not permitting such recovery.

In Norris vs Western Union Telegraph Co. 93 S. E. 465, the syllabus reads:

"The addressefof an interstate message cannot recover damages for mental anguish as resulting from the defendants' negligence in failing to deliver the message, since Congress has taken over the regulation of interstate commerce, and the Federal Courts having held that such damages are not recoverable, the Courts of Carolina must follow such holding".

In Berg vs Western Union Telegraph Co. 96 S. E. 248, the Court said:

"The federal law does not rec,ogaize mental anguish as an element of damages in actions against the telegraph companies for failure to deliver messages".

'Je therefore come to the conclusion that inasmuch as claims for mental anguish are not recognized by Federal Courts, and inasmuch as the obligations of telegraph companies are determined by the jurisprudence of Federal Courts, plaintiff's petition disclosed no cause of action, and was properl-y dismissed by the judgment of the district Court, which is therefore affirmed.

January 2d, 1922.


author: Honor John st. Paul.

text:
    NO. 8175
    MRS ABRAHAM MINIS VS CONSTANT GRECO.
    STATE LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   OPIHIOH,

By his

Honor John st. Paul.

She defendant leased certain premises for use as a "bar-room", and when the national war time prohibition went into effect he closed his establishment, surrendered the premises, and refused to pay any more rent. Wherefore this suit followed.

1.

A Bar-Room is a place where intoxicating liquors are sold to be drunk on the spot (7 Corpus Juris 930). And since the law itself forbade the sale of intoxicating liquors thereafter, it follows tfcfct defendant, through no fault of his and solely by aot of the law, was deprived of the use of the premises for the very purpose for which he had leased them. And if the law be, that where the tenant is deprived of the use of the premises for the purpose for which he leased them, he has the right to demand the cancellation of the lease; then it is no answer to his demand for cancellation that he might have used the premises for some other purpose.

II.

How the rule of the Civil Law is this; that, if during the lease and without fault on the part of the loasaa, the thing laasad he destroyed in whole or in part. or oaasa totally or partially to he fit for the purpose contemplated; or if hy events unforeseen, or irrestible force, or act of the law^the lessee be deprived in whole or in part of the. use and enjoyment or profits of the leased premises; he may, according to oiroumstanoes demand either the dissolution of the lease or a proportionate reduction in the rent; unless the contrary has been expressly and clearly agreed upon. 0. 0. 18S9, 2695, 2697, 2699, 2745; C. H. 1722, 1785; Bomat, louage, Sec 5 par. 3.

On the other hand, the old common law made no allowance for unforeseen events or even irrestible force. Paradyne vs Jayne, Aleyn 26 (82 English Reprint 897); Pollard vs Shaffer, 1 Dallas 210; 24 Cyc 1156-1167. (Now modified somewhat; for which see 92 U. S. 111; 101 U. S. 612; 110 U. S. 646; 120 U. S. 707) But even that system always admitted that an intervening act of the law Itself would excuse performance of a contract. Dermott vs Jones, 2 Wallace 1. page 7. So that it will avail but little to seek light from common law sources when considering a Louisiana ffiease.

Is to Atadle vs Burses, 41 An 281, we oan say tut this; that whatever we may think of the law therein to te ## found, it is certainly in oonfliot with Campbell vs Sallo, 142 Xa 1082, a late/toase; which latter we follow not only on *8hat account tut also because in our opinion the conclusions therein reached are oorreot according to the facts shown*

(the judgment appealed from is therefore affirmed.


author: WILLIAM A. BERR, JUDGE:

text:
    MRS. ABRAHAM MINIS versus CONSTANT GRECO
    NO. 8175
    COURT OF APPEAL PARISH OF ORLEANS
    March 13, 1922.

   WILLIAM A. BERR, JUDGE:

ORDER

After further consideration of the lav:, and the evidence -in- this case upon re-hearing, v:e find no grounds for departing from our former ruling. It is therefore ordered that the judgment of this Court be, and the same is hereby reinstated, and made final.


author: Dinkolspiel, Judge.

text:
    NO. 8176
    BRANTLEY & DOBY VS WILLIAM COMERFORD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   opiwion.

Dinkolspiel, Judge.

ffihe praotically indisputad faots of this case fnow that the evidence has head heard) are; That defendant Wm t formal contract with tho jock Board to do certain construction work, and an informal sub-oontraot with plaintiffs to furnish some of the materials ha needad; that the materials furnished by plaintiff was rejected by the Engineer of the Board, whose opinion was to be final as plaintiff had been Informed; that defendant had to obtain other material at a higher oost; and that plaintiffs material was then sold with thhir consent and for their account.

X.

Plaintiffs now sue for the value of their material, say ¿242.41, lass freight paid, say :j¡80.19; leaving a balance of ¿162.22 claimed in the petition. Against this claim defendant offsets his damages amounting to ¿157.77, being the amount paid for new material, say ¿226.77, lass proceeds of rejected material, say '169. Deducting the 1157.77 of damages, to which defendant is clearly entitled, from the $162.22 due plaintiff, leaves a balance of .¿4.45 in favor of plaintiff.

How this last amount is the moat to which plaintiffs could he entitled under the most favorable aspects of their claim. But the defendant set up in reoonvention a further claim of |Z00 (of v;hioh more hereafter), which the distriot judge allowed and thus gave a net judgment in fayor of defendant for $295.5b.

II.

Ihe re conventional demand for ¿¡¡000 arises out of the fact that defendant was charged with that amount as liquidated damages, being for twelve days delay at $25 per toy, as fixed in his oontraot with the board; which delay he attributes solely to the fault of plaintiffs.

As we said before, the oontraot between defendant and the board was a formal one, in whloh ¡iquiáated damages for delays ware stipulated; whilst the oontraot between defendant and plaintiffs was ##&### wholly informal; simply the purchase of an artiole whioh was to borne up to certain requirements.

Now there is no charge or pretense of bad faith on the part of plaintiffs; and the measure of damages for breach of oontraot without bad faith, is such damages as were oontemplated, or may reasonably be supposed to have been contemplated, at the time the oontraot was made; that is to say, suoh damages as were or might hare been foreseen. C. C. 1934 No. 1; 0. C. 1943.

But penalties, and stipulated or liquidated damages, are neoessarily special damages, since they may always be arbitrarily fixed; and henoe for defendant to recover these MiééM demurrage charges, it must be shown not only that plaintiffs were informed that defendant himself was under a general liability for demurrage charges, but also that plaintiffs were made aware that they in turn would be looked to for reimbursement in case of their own default. See 13 Ore pages 31 to 36, and especially Note 89- Also 17 Corpus Juris page 747 notes 1 and Z.

But there i3 no suoh evidence in this case. Defendant swears merely that he sent copies of the speofications to plaintiffs. Plaintiffs swear that the only copies of the specifications received byre extracts thereof relating to the stone material they were to furnish and not the full speeffioations containing the demurrage olauses; and they point out circumstances tending to corroborate their statement.

Suoh a oonfliot alona would auffioa to dispose of defendants olaim, since the burden was upon him to make his case certain. But indeed we find no oonfliot, sinoe defendant does not eren olaim to hare sent the full 3peoifioationa. Throughout his oorrespondsnoe and his testimony we find no suoh statement. On the contrary he testifies later that the oopies of specifications he sent, were the Yery extracts testified to hy plaintiffs, and adds hy way of explanation; "I was only interested in that portion of the contract relating to stone."

III.

We think plaintiffs olaim unfounded beyond the trifling sum of |4.45, as above stated; and henoe will charge them with the oosts incurred in the trial court, their olaim being virtually rejected. But as defendant’s reconventional demand is wholly untenable we will charge him with the oosts of this appeal made neoessary by his urging thereof (lot of 1910).

The judgment appealed from is therefore reversed, and it i3 now ordered that plaintiffs, Brantly !-. Boby, have judgment against defendant, William J. Comerford, for téjHHf Pour 45/100 BollarB with legal interest from judicial demand. Plaintiffs to pay the oosts of the court below, and defendant to pay the oosts of this appeal.


author: CHARLES P. CLAIBORNE, JUD®.

text:
    Charles F. Claiborne, Judge.
    ISAAC M. WEISS VS SUCC'N. of A. MONTELEONE, Appellant.
    No. 8182
    January 16th, 1922.

   ISAAC M. WEISS VS. SUCC'N. of A. MONTELEONE, Appellant.

Mo. 8182.

CHARLES P. CLAIBORNE, JUD®.

Plaintiff sued the defendant, keeper of a hotel, for -$230.00 which he alleged had been stolen from the room he occupied in the hotel. He alleged that on April Sth. and 7th, 1919, he was a guest in defendant's hotel and was assigned a room; that he was not.furnished with any key, although he repeatedly asked for one; that on retiring at night he "had in his right hand pant's pocket the sum of $230" which he counted; that when he awoke the next morning he found that his money had been stolen during the night; that he is a traveling salesman covering the territory of the Southern and Middle Western States from Washington to Texas and from Oklahoma to Pittsburg, for the Empire State Ladies' Underwear Corporation of New York, and that the said sum of $230 was not an unreasonable amount of pocket-money for him to carry about his person to defray his current expenses of traveling; and he prayed for judgment for $230.00.

The defendant pleaded a general denial and further averred;

"that respondent's hotel was provided with.an iron chest and vault or safe deposit for valuable articles, including money, belonging to its guests and customers, and that it has always kept posted, particularly before, on, and since April 6, 1919, upon its doors and other public places id said Hotel Konteleone, printed notices to all of its guests and customers, that they must leave their; valuables with respondent, its agents, or clerks, for safe keeping, in order that respondent may make safe deposit of the same in said iron chest and other safe deposit vault provided for that purpose; that said printed notice was conspicuously posted upon said doors and other places in respondent's-hotel, and notwithstanding said notices, the plaintiff failed to leave with respondent or its clerk or agents, for deposit, any moneys or other articles of value, at any time whilst he was a guest at said hotel; that respondent has complied with all the requirements of the law in the premises,and for which it is not responsible to the plaintiff for any loss that he may have sustained -; respondent further avers that it had posted, as above specified, in a conspicuous manner in the room occupied by the plaintiff herein, before, on, and since the month of April 1919 a notice requiring plaintiff to deposit his money, jewels, and ornaments in the office safe and to bolt his door, or on leaving to lock his ddor and leave the key in the office, bureas on whereof your respondent is not liable, x x x Further answering respondent says that Article 2971 of the Revised Civil Code of 1870 as amended and reenacted by Act 231 p 519 of the General Assembly of Louisiana of 1912,was conspicuously posted in the guest rooms of said hotel, and particularly in the guest room occupied by the plaintiff, before, on, and since the month of April 1919 in the following words and figures, to-wit: "Article 2971. No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests*' or Party of guests, by theft or otherwise, in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for".Provided that no ©jest shall be held bound by the limitation of value established in this Article unless this Article is conspicuously posted in the gaest room".

There was judgment in favor of the plaintiff for one hundred dollars, and the defendant has appealed.

It is not disputed that the Aot of 1912 copied herein-above limits the liability of the innkeeper to $100, and that no judgment can be rendered herein in excess of said sum.

But the defendant relies upon Articles 2968 and 2969 of the Civil Code which are a reproduction of Act No. 5 of 1860 p 7, entitled1'an act for the protection of Hotel Keepers" and read as follows:

C. C. 2968: "Every landlord or keeper of a public inn or hotel, shall be required to provide with an iron chest or other safe deposit for valuable articles belonging to his guests or customers, and each landlord or hotel keeper shall keep posted upon his doors and other public places in his house of entertainment, written or printed notices to his guests and customers that they must leave their valuables with the landlord, his agent, or dark, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose".
C. C. 2969: "Every landlord, hotel, or inn keeper who shall comply with the requirements of the preceding articles, shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, JU or of ra^e and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such public inn or hotel, if the same shall not b*i■laf t-,W)LtÍi¡¿ the landlord, his clerk, or agent, for deposit,: «mies» such loss shall occur through the fraud or negliger-s&• wf the landlord, or some clerk or servant employed by;bbfc' in such inn or hotel; provided, however, that the.pravi-sions of this Article shall not apply to a wigring wAelt or such other articles of jewelry as ars ordinarily na» about the person".

We have found no interpretation of these Articles by thi. Supreme Court, But in 18 A. 156 (157), the Supreme Court, said?

"Defendants mi$it have easily avoided the responsibility imposed upon them by the Articles of the Code referred to, (2965, 2967, 2970) by giving the notice authorized in an Act of the Legislature passed on the 16th. of uary, 1860 for the protection of hotel keepers".

The evidence establishes that the defendant complied with the Articles 2968 and 2969, and it is not disputed. Having' complied, tn the language of the law, he is not liable for any money that may be abstracted from his hotel-, unless the loss occurred through the negligence of the hotel keeper.

The only negligence charged to the defendant is his failure to provide the plaintiff with a key with which he might have locked the door of his room when he retired at night. That might have raised a serious question if the unlocked door had been the immediate cause of the loss. But we consider that it was the remote cause, and that it was plaintiff's fault which was the immediate cause of his loss. He was negligent in not depositing his money with the hotel felerk. He left it in the pocket of his trousers upon the chair, the very place wheie a thief would be likely to look for it on entering his room. The door of his room was not locked. If subsequent, to the negLigenoe of the defendant, plaintiff, by the exercise of due diligence, could have avoided the effect of such negligence, but failed to do ao, he will not be able to -recover. 38 S. E. 82; 140 Mass. 123; 2 N. E. 934.

In the 14 A. 526, 528, it was said that a traveler who contributes to his loss cannot recover. 14 A. 526, 528. Leaving a watch and chain and other valuables upon the dresser in his room instead of concealing them "under the mattress or in some part of the room" was negligence. 14 A. 528. One of the witnesses in this case has said "sometimes I put it in my shoe, sometimes tie it aroung my ankle". -See also 7 A. 361.

Counsel, in his brief, urges the argument,

"that, under the law, Mr. Weiss was entitled to have upon hia person a reasonable amount of money for his expenses x x and that for a traveling salesman to have $230 on his person is not an excessive or unreasonable amount of money".

We apprehend that such was the view taken by the District Judge. He would have been right prior to the Amendment of 1860 under Article 2971 of the Civil Code as interpreted in 18 A. 156, 5 Ct. App. 61, 14 A. 326 and 527.

"According to the circumstances of the fact and the condition of the parties".

But Article C. C. 2969 says that the hotel keeper"shall not be liable for any money", without any qualification; the Court has no right to create any to suit its own views upon the subject.

In Hyatt vs Taylor, 51 Barbour 632 (New York Supreme Court) under a statute similar in may respects to out Articles of the Bivil Code, the trial judge charged the jury

"that they (the hotel keepers) were not protected as to money sufficient for traveling expenses of the plaintiff".

The Supreme Court said;

"there is no exception in the Act of any portion of the guest's money. Hot a word that indicates an intention-.. to except money necessary for traveling expenses. On the contrary, every word used in the Act denotes an intention to relieve them from liability, as to all money, jewels, and ornaments in the possession of the guests. The language i's so plain that 1 think & c".
See also 44 N. Y. 172; 9 Ohio Dec. 372; 24 Wisc. 241; Stewart vs Parsons.

In 42 N. Y. 258 (Court of Appeals) same Hyatt vs Taylor, the Court said:

"An innkeeper who provides a safe for the reception of money, jeweis, or ornaments, and posts up in the room of his guest a notice that they may be deposited in the safp pursuant to a statute declaring that he shall not be liable for any loss thereof in case the guest negLects to so deposit them, is not liable for the loss of any money, jewels, or ornaments not deposited in a safe. The protection to innkeepers given by the statute is not limited to money or valuables in excess of whit the gpest may reasonably require for his traveling expenses or personal convenience, but embraces all money, jewels, or ornaments which the guest brings with him without reference to the amount or value". Affirmed in 43 N. Y. 539.

Any other construction would absolutely abrogate the Articles 2968 and 2969 of the Civil Code and reinstate Article 2965 (2936) prior to its Amendment by the Act of 1860 as interpreted in 18 A. 156 and prior decisions. But it must be remembered that the title of the act of 1860 is "An Act for the protection of Hotel Keepers", and that it was intended to extend to them a protection which they had not enjoyed heretofore. Under the law as it existed prior to 1860 they were responsible for 3uch money as was necessary to meet traveling expenses; under the new law they were not liable for any money, ¿g travelers usually carry only such an amount of money as they will need, and as those needs always exceed $100, the success of plaintiff's argument would mean, that'hotel keepers would be liable in all cases, safe deposit or no safe, notice or no notice, and thus the Act of 1860 would be repealed by judicial interpretation and become a dead letter. The title of the Act indicates that it was passed for the benefit of the hotel keepers and not to assist travelers.

It is now ordered that the judgnent of the District Court be reversed and set aside and that there be judgnent in favor of the defendant rejecting plaintiff's demand at his cost in both Courts.

January 16th, 1922.


author: Dinkelsplel; J.

text:
    NO. 8185
    COURT OF APPEAL PARISH OF ORLEANS.
    ARMSTRONG DONALDSON VS. WIDOW BERTHA ROSAN.

   Dinkelsplel; J.

Plaintiff Institutes this suit averring that defendant was indebted to him in the sum of $180.00, beoause of the faot that he was employed by her attorney, Ur. B. J. Daly, to sell her property on Gentllly Road, agreeing to pay him the sum of two per oent of the amount of the sale, and further plaintiff prays in the alternative, that in the event the Court should hold that Daly was not authorized to enter into an agreement with plaintiff, then in that oase, avers that sinos July 1918, he had been endeavoring to effeot the sale of the property for aooount of defendant, had made an appraisement thereof, with her authority, had lnspeoted the premises, in her presence, and at her request and made a detailed valuation of the buildings, ground, barns, peoan trees on said property, with the knowledge and oonsent and under the employment of the defendant, and wherefore he pray* for Judgment.

There were several exceptions filed in this oase prior to the answer? 1st, that plaintiff's claim consisted of two inconsistent demands, which exception being overruled there were exoeptions subsequently filed, one of vagueness and one of no oause of action, whloh were also overruled; and then answer defendant denies that she is indebted to plaintiff in any amount, denies Daly, who was. her attorney, was authorized to oontraot or employ plaintiff to sell her property, denies that she agreed to pay plaintiff two per oent of the amount of sale, denies speoifioally that she ever authorized Daly to make a oontraot for her and that if said Daly did make a oontraot for her, he exoeeded his authority and made the oontraot without her knowledge or oonsent, denies that plaintiff sold her said property for the sum of #9000,00 or any other sum, denies speoifioally that sthere were any services rendered by plaintiff for her aooount and prays for Judgment in her favor.

There were a number of witnesses examined for bo$h asserting of these parties; plaintiff/ his oíala, and without entering Into any particular part of his testimony, gives an aooount of the Interview with defendant, where Mr. Daly was present and where he was authorized to make and did make an Inventory and description of the property of the defendant, with orders to present to the .Sook Board, for the purpose of securing sale of the property in question.

Aooording to his testimony he went several times to examine the building, to put a valuation on same, together with the ground and the crop; he fixed the prioe and ■ submitted the offer to Mr. Tessler, who at that time, had oharge of the property in question.

All of this more or less is denied by the defendant, who positively swears that she had no dealings with plaintiff of any kind or oharaoter, that she never saw him, she did not get his reports, that he made no endeavors to sell her property and that he had no authority whatever to do so.

The testimony of Mr. Daly, the attorney in tht? ease, is in our opinion, the moat important factor in referenoe to the employment of plaintiff and the knowledge that defendant had about same; and, amongst other portions of this witnesses testimony he goes on to relate his employment with defendant, that a oertaln a-aount had been offered for the property which was not satisfactory and he brought down to the plaoe, expert photographers to view the property; that plaintiff at that time was representing several parties and that he engaged him and went with him to defendant’s plaoe and that plaintiff mad® an inspection, returned his estimates in writing and that estimate was then in possession of the defendant; he positively swears that plaintiff and he visited the house together, that he introduced plaintiff to the defendant and told her what they were there for, that measurements of the plaoe, inspection of several buildings, describing them, and that he explained to the defendant the objeot of the visit, that he was introducing plaintiff as an expert for hex benefit. At page twenty five of his testimony he reiterates that defendant was fully aware of what plaintiff was doing, adding, "make no mistake about that".

Q. That is your opinion*
A. Sot my opinion, it is a fact.

It is evident from the oonflioting testimony of witnesses in this oase, for plaintiff and defendant, the one asserting emloyment and the value of servloes rendered and the other denying in toto that she ever net plaintiff, ever knew him, that he had ever visited her plaoe, ever had any oontraot with her for the sale of this property, is in our opinion, oontradloted, by Ur. Daly, her attorney, who was energetically progressing in an Attempt to sell thi# property at the very best prloe possible, and failing to get the prloe demanded, he with the oonsent and knowledge of defendant, employed plaintiff to make reports as an expert, of this property, whloh were satiefaotory; although denied by defendant a oopy of the report so made by phalntiff was in her possession and that she did know of Hr. Daly's employment of plaintiff and knew further that plaintiff was aoting for her in endeavoring to get a much larger prloo for the property in question. The original offer of the Dook Board, through Hr. Tassier, was #7500.00} this was subsequently inoreased to #9000*00, for wbioh the property was sold.

Under the olroumstanoes as stated and the evidenoe as given, the Judge of the Court aqua, who had all the witnesses before him, and who, having seen and heard these witnesses, had a better opportunity to Judge of the value of the teetimony adduoed, than we have, and after hearing these parties, he deolded that plaintiff was entitled to the amount olaimed or the sum of Í180.00 for sefvloes rendered.

It has been frequently held that under oiroum-stanoes euoh as appears in this reoord, that this Court will not disturb the judgment of the Court aqua, unless manifestly erroneous, on questions of faot.

Frank vs. Mateu, 13 Court of Appeal, 473.

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

-Judgment affirmed*


text:
    BERNADO CINQUIMANI v. THE CONCORDIA FIRE INSURANCE CO.
    No. 8186
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A . BESS, JUDGE:

   Plaintiff Bernardo Cinquimani seeks recovery for losa under a fire insurance polioy No. 70,22V issued in his favor by the Concordia Fire Insurance Company, defendant herein, upon a certain frame one story/building situated in Mandeville, la., and totally destroyed by fire on Jíecember 19th, 1917. The premium, on said polioy was paid and the property in question was covered by said policy at date of the fire. Proof of loss was duly presented by claimant and liability denied by the Coiqpany. There is no dispute as to these faots but it i3 contended by defendant that plaintiff cannot recover because he was not at any time owner in fee simple of the property destroyed and that he failed, when taking out the insurance in question, to disclose his true interest if any in the property covered by the- polioy. The lines or clauses of the polioy upon which these contentions are pleaded, read as follows:

"•This entire policy shall be void if the insuretasc has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured be not truly stated wierein."
"This entire polioy, unless otherwise provided by agreement endorsed hereon or added .hereto, shall be void - if the interest of the insured be other than unconditional or sole ownership; of if the subject of this insurance be a building on ground not owned by insured in fee simple."

The evidence is conclusive that from the date of the policy, November 16th, 1917, to the date of the fire, Deoember 19th, 1917, plaintiff was not in possession of any publio notarial title, nor was there any publio registration in his name of such a title, as owner oí qualified owner of the property covered by the polioy. However, plaintiff’s title or muniment of title to the property in question is shown by an original document described as exhibit "P 2" and reading as follows:

Hew Orleans, Ba., May 14, 1917,q I herrty agree to purchase through V. B. Bancaster for $660.00 lot and store on Sirod street, Mandeville, Louisiana, in square 17. Said lot measured forty feet (40'J front by one hundred and ninety feet (£90") deep,, between equal and parallel lines, pay$h$e $60.00 cash, balance $8.00 per month with four per cent (4$) interest.
witS!s6®sáMiiH ”b: cinquimani
E• J•1 BAGUE

Ernest J. Bagur, witness for defendant on direot examination, testified in relation to the above document as follows:

Q. Mr. Bagur, are you the same Ernest J. Bagur who purchased from Armand D. Lancaster, property described in this dooument market DM ?
A. fes, Sir.
Q. Are you the same Ernest J. Bagur who acted through W. B. Lancaster in executing the agreement. Marked
P. £ between Bernado Cinquimani and yourself as owner of the property?
A. Yes*
Q. And thi3 is your signature on the document P 2?
A. Yes.

It is further disclosed by the record that shortly after plaintiff acquired possession of the property he insured it with the defendant company and that from the date of the above document to the date of the fire, plaintiff had nxfc lived upon and was in full possession of the property and had striotly complied with all terms of payment as stipulated in the said contraot to the extent of One Hundred and Six Dollars (|106/00). In other words, possession, coupled with the three essentials of sale , to wit: the thing sold, the price, and the consent, have been clearly established in this oase. (0. 0. Article 2439). The attack herein made by the defendant company against the validity of the sale is not sound in law under the evidence adduoed, for the reason that the exowptions stated in Articles 2275 and 2440 of the Civil Code, to prescribed and customary methods of transfer of Mrueww'able property, are unmistakably present.

It must be noted also that the vendor, as witness ifflr the Company on direct examination relating to the sale has "confessed it when interrogated under oath" and after"actual delivery" has been made of the property sold.

Counsel for defendant Company placeB much rillanee in the oases of PERRIN V. STUYVESANT INS. CO., 140 la. 812, and CARRANO V. THE CONCORDIA PIBE INSURANCE CO. No^ 7613 of the dooket of this Court. These authorities are specially cited in support of the contentions that unconditional ownership by plaintiff of the property covered by the polioy was wholly lacking. We have given careful consideration to those authorities and find them inapplicable to the instant case,for the reason that in each of these eited oases the ruling of the Coart was predioated upon the speoifie finding that at the time of the issuance of the pul-ióles and for some time afterwards and at the moment of the fire which destroyed the property, title to the property in question stood in the State of Xouisiana and not in the insured hy Tirtue of unredeemed tax sales, thus making the"interest of the insured other than that of unconditional and sole ownership". We find in the case before us,facts quite contrary to those above noted, and that Cinquimani's title to the Mandeville property was clearly that of unconditional and sole ownership, made certain by possession- in the vendee as well as by compliance on his part, in every respect with the written terms of sale, to which both vendor and vendee were parties. The clauses of the policy heroin pleaded in avoidance of liability are not available as a de-fence to this suit. At the time of the issuance of the policy we find that there was no concealment or misrepresentation and that ownership in the insured was complete in law and in fact.

It is further contew4*[_by defendant that the trial oourt erred in excluding,upon plaintiffs objection,certain oral testimony offered by defendant for the purpose of explaining the conditions on vihieh the written terms of sale were exeouted, and of showing the circumstances under which plaintiff's actual possession of the property arose. We find no error in the courts ruling.

The Company's counsel in supplemental brief stresses other authorities,among them the case of THOMPSON vs.SHERIFF ET ALS., 40 La. Ann. 712. like analysis of this case shows there was a suspensive condition or agreement t* the contract to sell, inasmuch as the promisor agreeds"to make a title to Thompson when he shall call for same". We think the Court correctly held that the instrument,was because of this dtipulation,only a promise to sell to Thompson, who, it may be also noted,had not, as in the case before us, signed the document.

A> written promise to purchase without a proviso of suspen-sive condition that formal title shall he executed, amounts to a sale between the parties , especially where both parties .sign the Instrument which sets forth the f*mt ox sale and description of property conveyed, and where the purchaser takes possesssion. 11 S. 349; C.C. Arts. 8439, S44«, 8468.

Plaintiff and appellee herein has filed in this Court on date Of Deoember Slst, 19E1, an asnwer to the appeal taken by defendant and appellant, wherein it is prayed that the Judgment of the trial Court be amended so as to award to plaintiff oer~ tad , tain penalties aadr attorneys fees under Act/ 168 of 1908, The transcript of appeal herein taken wa$ duly filed in this Court on March 12th, 1921, Plaintiff's answer to appeal oomes too late for consideration and relief therein prayed for is denied.

The Judgment of the lower Court is hereby affirmed.

January 30th, 1922,


author: CHARLES F . CLAIBORNE, JUD®.

text:
    LOLA V. SCHOTT VS ALBERT de ST. AUBIN
    No. 8188.
    January 16th, 1922.
   LOU 7. SCHOTT 7S ALBERT de ST. AUBIN. Appellant.

No. 8188

CHARLES F . CLAIBORNE, JUD®.

This isa suit for board and money loaned.

Plaintiff alleged that she boarded the defendant from February 1st, 1916 to February 1st. 1917, for which he agreed to pay her $25 a month; that on January 2d, 1916 she loaned the defendant $20; and on August 9th, 1916, she loaned him $200, ife/hich, at various times, he promised to pay back, but has failed to do.

The defendant^»* April 11th, 1918^admitted the allegations relating to the board, but denied all the allegations concerning the loan. The answer was signed and attested by his attorney at law.

On January 31st, 1919, the plaintiff thereupon took the following rule upon the defendant:

"On motion of Miss Lola 7. Schott and on suggesting that the defendant in his answer, had admitted that he is indebted unto the plaintiff in the sum of $300.00, and on further suggesting that plaintiff should have judgnent for that amount as prayed for, It is ordered that the defendant herein Albert de St. Aubin, do show cause on the 7th. day of February 1919 why there should not be judgnent rendered therein for $300 with interest from judicial demand in favor of Miss Lola 7. Schott and against Albert de St. Aubin".

This rule was served upon the defendant in person, and, prayed for, on February 7th, 1919. On October 21st, 1920, a different counsel was retained by the defendant and made attorney of record. On November 19th, 1920, he filed an answer in which he repudiated the former answer, 'rüjd. filed by his former attorney^

"for the reason that same is contrary to the facts as explained by defenfant and the instructions given by him to his attorney x xx and that said answer was evidently filed through error or misunderstanding";

he admitted that he had boarded with the plaintiff, but denied that he was indebted to her in any amount; he admitted

"that he agreed to pay the sum of $25 monthly; he denied that plaintiff had loaned him either $20 or $200, or that he had promised to pay it; he denied amicable demand, and prayed that plaintiff's demand be rejected"» This answer cas attested by the defendant.

There was judgment in favor of the plaintiff for $220 as prayed for - and the defendant has appealed.

There were only two witnesses in this case; they testified in open Court. The plaintiff swore that the check dated January 2d, 1916 for $20 signed by her to the order of bearer and endorsed by defendant, represented money borrowed from her by defendant;' that she never owed him'a nichfel in her life; that he had no money to lend; she produced another check for $200 dated August 9th, 1916 drawn by her to her own order and by her endorsed^ and she said that she drew that amount from the Hibernia Bank, and loaned it to the defendant; that the transaction took place at the St. Charles Hotel near the elevator.

The defendant testified that hebowed the plaintiff nothing whatever; that he did not borrow from her $20 nor $200, noi/ a cent; that the check of $20 was given to him "in payment of some money he had let her have"; he does not remember borrowing from the plaintiff $200 on Augist 9th, 1916; never saw that check before; he boarded with Hiss Schott's mother in 1916 for "approximately a year".

In this conflict of testimony the preponderance seems to be with the plaintiff. It is not likely that the first attorney 7iho filed an answer in his name would have filed an admission that the defendant owed twelve month's board at $25 per month, unless he had been authorized by the defendant so to do; the presumption is that the attorney filed an answer in accord with instructions given him. When a rule was taken, based upon this answer, for a judgment against defendant, he was served personally,and made no defense to the rule; if the allegations of the rule had been untrue, he would have denied them, and resisted a Judgment. Yet, nearly two years aftenwards he admits having ""arded with plaintiff for about a year, and although he aays he owes nothing for board, he fails to allege or prove that he has paid any board at all. Under the $300 judgment, his bank account was garnisheed, and he failed to enjoin the execution of the judgment.

He said that the $20 check represanted reimbursement of money he had loaned the plaintiff. He states neither time, nor circumstances, nor amount, of this loan; and if it is true that he owed for board, he does not appear to have been in a condition to "let her have" any money.

The judge who saw and heard him and the plaintiff believed the plaintiff, and we are not certain that he srred. The defendant is suffering the consequences of his own contradictory course in this case.

Judgment affirmed.

January 16th, 1922.


author: Dinkelspiel; J,

text:
    No. 8189
    COURT OF APPEAL PARISH OF ORLEANS.
    A. P. PERRIN versus AUGUST SCHABEL.

   Dinkelspiel; J,

This controversy arises under the following 3tated facts:

Plaintiff claims of defendant, the sum of $300.05; that at various times from July 10th, 191® until August 1st, 1917, he had sold and delivered to defendant, various heads of oattls as per itemized hill attached thaxata hereto, and that there had heen paid to him hy the defendant from time to time, all but the sum of $300.25, for which he prays Judgment.

The defendant in answering plaintiff’s petition denied all and singular the allegations therein contained and purtiou» larly denied that at the time stated in the petition he was indebted to plaintiff at all, and denies further any indebtedness to plaintiff.

He then avers amongst other things that he had a contract with the Government and that he submitted said oontrp.ot and specifications to the plaintiff, who agreed to furnish the iA defendant with all the meat required under said contract and further that aoting in good faith, upon the instructions and representations of said plaintiff he, the defendant, bid on said oontraot, was awarded same, and turned over all the orders from time to time, to plaintiff, and alleging further in the answer that plsx he had nothing to do with the furnishing of the meat, but same was turned over to plaintiff and having made a loss in this transaction, through the fault of plaintiff, claims the entire sum as damages and that he had notified plaintiff of his loss, who paid no attention to same, and that he sent him a alt oheck for $773.56, which he claims was the total balance due on the aooount rendered by plaintiff to him and this oheok was received by plaintiff in payment of said aooount in full and reoognized same as an offset. Wherefore he prays that plaintiff's suit be dismissed at his cost.

are met with At the outset of this suit we/ the fact that compensation is plead when the'demand has not been liquidated.

Civil Code Art. 3309 reads:

"Compensation íak=3 piaos only between two debta, hav'ing equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demendable."

The Code of Practice, Art. 366 reads:

"Compensation, or setoff, is a mode of extinguishing debts, which takes place when it happens that both plaintiff and defendant ere indebted to each other; each retaining, in payment of the sum due to him, the amount which he owes to the other."

There are numerous deolsione by both this Court and the Supreme Court, whioh maintain both the Civil Code and the Code of Preotice, and in the ca9e of Hope vs. Howard, 19 Ann. p. 465; where the Court held:

"Plaintiff filed a bill of exception to the admission of the evidence, and the objections in the bill are, that his olaim was a liquidated one, having been liquidated by the acknowledgment of the defendant, in his answer, and that an unli-quidated olaim, as was defendant's for the sale of the wcod to plaintiff, oould not be pleeded in compensation against it, nor could defendant1s claim be pleaded in reoonventlon, because it was not connected with his, plaintiff's olaim for rent, and because both parties were residents of the same parish."

Gardner vs. Hattier, 9th Court of Appeal, 18:

"It is of the essence of the plea in compensation that it admits the debt' sued on." jJ

In Maillet vs. Martin, 7th Ann. 635:

"Proof of compensation oannot be reoeived where the defendant's plea of compensation is vague and indefinite. Such a p'lqa should state the nature and amounts of the claims, with suoh precision as to prevent the plaintiff's being surprised."

We therefore hold that under the pleadings presented exceptions 6 by the defendant in this case, proper/a»$i¿eíáx®e having been made to tie receiving of evidence attempted to show damages to the extent of amount of plaintiff's claim and denying his obligation, cannot be maintained under the laws of this State and therefore the objection to taking t93timony should have been maintained and plaintiff having proven the entire amount of balanoe due and sued for, is entitled to judgment therefor, together with interest as prayed for by him.

For the reasons assigned, it is ordered,- adjudged and deoreed that the judgment o-f the Court aqua be and the seme is affirmed,, with costs of both Courts to be taxed against defendant.

-Judgment affirmed.