author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charlee 3P. Claiborne, Judge.
    WARREN REFINING AND CHEMICAL CO. VS MILLER PLUMBING CO.
    No. 7918
    January 24th, 1921.
   WARREN REFINING AND CHEMICAL CO. VS MILLER PLUMBING CO.

Ho. 7918.

Appeal from Civil District Court, Hon. E. K. Skinner, Judge.

CHARLES F. CLAIBORNE, JUDGE.

This is a suit for the price of oil, the plaintiff alleges it sold to the defendant. The defendant denies he bought the oil, and avers that he received it on storage only.

The plaintiff alleged that during May JL917 it shipped to Iff. S. Auto Shop of Hew Orleans three and one-half barrels of Motor Eze Oil, of the value of about $77.65, about 55 pounds of grease of the value of about $28.50, and about two gallons of Shingle Stain Green of the value of $1.30, making a total value of $107.45; that the Auto Shop failed to accept said shipment; that, thereupon, John F. Muller, doing business under the name of the Muller Plumbing Company, agreed to take the shipment at the same price at which it had been sold to the Auto Shop, and therefore the shipment v/as delivered to^and accepted by,

John F. Muller; but that the said Muller has refused to pay for said shipment.

The defendant denied all the allegations of plaintiff's petition and averred:

"That one J. J. Lawler stated to defendant that he had on hand a rejected shipment of goods and asked defendant as a favor to permit him to store said goods in his gafage; that defendant consented to his temporarily using defendant's garage, and that thereupon the said Lawler placed three barrels of oil in a leaky condition, some boxes of grease and a box of stain in defendant's garage, and same has remained there to this date without being called for or claimed by said Lawler; that defendant at no time agreed to purchase said goods from said Lawler or any one else".

Defendant further averred thit the said Lawler borrowed from him $16.19 tq- pay the freight upon the shipment, which he promised to return hut never did; and he prays for Judgment in reconvention for $16.19.

There was judgment for defendant. The reasons of the Judge were as follows:

"Suit for $107.45 as substitute purchaser of certain goods consigned to W. S. Auto Shop. It appears that the ¶. S. Auto Shop for some reason refused the, shipment, whereupon the agent of the shipper entered into an arrangement whereby Muller advanced money to pay the freight and took in storage (see letter) the goods in question, the shipper(s agent engaging in their sale as he wished, xxxxxxxxxxxxxxxxxxxx I do not think the plaintiff has established a sale to defendant,but the agent had the inherent right to stop demurrage charges against his principal and to borrow to make the deal; The goods stored were lost by leakage while stored with defendant. He was a gratuitous bailee, a warehouseman, and not as such liable. Suit dismissed. Judgment in favor oil reconvenor for cash advanced $16.19".

The defendant had also reconvened claiming $200 damages for the alleged violation of a contract of sale of an automobile, which, as we have seen, was denied by the judgment.

The plaintiff alone has appealed. The defendant has not asked for an amendment of the judgment.

The burden was upon the plaintiff to prove the sale to defendant alleged by it.

This suit was filed November 25th, 1918 - eighteen months after the alleged sale.

In a letter dated April 24th, 1917, the plaintiffs inform the defendant that they have been advised by their agent Lawler that there has been a shortage of several gallons in three barrels of oil sold to him, and they authorize him to deduct the shortage from the invoice when making the payment. This letter shows a pr.evious business relation between the plaintiffs and the defendant, and that the defendant had a supply of oil for which he paid, as there is no claim for it here.

It further ajjpears, and it is not contested, that the plaintiffs had consigned the oil and grease mentioned in the plaintiffs' petition to the Auto Service Company which had refused to receive it. It is further admitted that this oil and grease were sent to defendant's premises and put in his garage. The plaintiff avers that they went there by virtue of a sale to the defendant; while the defendant contends that he received them only on storage. The Judge of the District Court was of that opinion, and we believe he did not err. It is made possible that the defendant did agree to take the merchandise off of plaintiffs' hands by the fact that he sent his team to the Railroad Station to take delivery of the oil. But on account of some endorsement lacking in the bill of lading the Railroad Company refused to deliver the goods to him. The defendant then virote the following letter to the plaintiffswhieh he caused to be delivered to them of special delivery and which they admit having received:

"New Orleans, May 20th, 1917.
Mr, J. Lawler, City
Dear Sir,
We have to-day sent to T. C. R. R. to get shipment consigned to f. S. Auto Shop aid they have refused to let us have same on the bill of lading as it is. There should have been the proper authorization made before goods can be received. We do not care to go to any further expense or trouble to handle this shipment, and if you care to get the oil and have it delivered here for storage, you can do so, and we will use what part of it we can.
Yours very truly,
"Signed" Muller Plumbing Co."

Lawler testifies that he received this letter; that he hurried to Muller's, who gave him the money to pay the freight;, he paid the freight, and hired a man to haul the oil to Muller's, and paid the man #2 .DO, and Muller got the oil.

It ie not possible t-o construe such a transaction as a sale. It is evident that Lawler .acquiesced in Muller's letter and on the conditions under which Muller would receive the oil, that is "for storage". It is not conceivable that if the plaintiff had sold the oil to the defendant that he should have sent no bill for it and should have remained from May 1917, date on which Muller received the oil, until some short time before November 1918, date when this suit was filed, before making a demand for the payment of the price of the oil. Defendant had a supply of oil on hand and did not need any more. But if he had use for oil, there is no contention that he needed the grease or the shingle stain.Lawler testifies:

"He (Muller) said he couldn't use the paint and he had enough grease on hand; x x x he agreed to take the shipment except the paint and the grease".

Met the petition alleges that defendant bought those also.

There is no evidence that he used any of the oil, or of the grease, or paint. The packages are now where they were in May 1917. Plaintiff, prayed for a specific remedy to which he is not entitled.

Judgment affirmed.

January 24th, 1921.


source: Caselaw Access Project

author: By his Honor John St. Paul.

license: Public Domain

text:
    NO. 7928
    FELIX J. DREYFUS VS CHARLES CANGELOSI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   opimo».

By his Honor John St. Paul.

Plaintiff issued executory process against Widow Papalia, ;ho thereupon enjoined the execution of the writ, defendant Becoming surety on the injunotion Bond. The injunction was 'dissolved, Widow Papalia appealed, and the Supreme Court affirmed the Judgment (143 la 530). Thereupon plaintiff presented a certified oopy of the deoree to the clerk of the District Court, who endorsed thereon "Reoeived May 29th 1918? Jos Doyle, Dy Clerk1'» and placed it in the fili or record of the case. Plaintiff then proceeded with his -writ»

Plaintiff now sues for attorney’s fees and loss of interest during the time he was kept put of his money, the property having eventually been sold for much less than the amount of his calim.

The defendant sets up fin effect) that the action is premature, heoause Widow Papila has filed suit to annul the proceedings out of which this action grown; urging ^ that'the trial of this case should await final Judment in that.'

The plea Is without merit. That suit was actually filed after this; hut even had it been filed before, that would have made no difference, since the plaintiff oannoj# be made to await the result of a suit whioh Mrs. Papila has so entirely under her control that she may discontinue and renew the same when and as often as she pleases. Moreover the matters set up in that suit are oprn to defendant here, who has In fact set them up as part of his defense.

II.

It is urged that the proceedings in execution of plaintit'iff *s ^ are all null and void; for this, that the decree of the " , j ” /iejlsyeLut-Supreme Court was never "rooeived" in the court below, thus leaving the injunction still in force, by reason of the suspensive appeal tafeen and still undisposed of aupad the District Court.

Article 619 C. Í. rdquires that before the judgment of an appellate court be executed it shall be recorded in the inferior court. In Amet vs Boyer, 42 An 801, it was held that this did not require that such judgment be entered on the minutes of the inferior court, and it sufficed that it be recorded in the boofe provided by Secs. 20 and 24 of Act 66 of 1866 (now Seotlona 474 and 475 of Rev. Stat.) commonly called the Judioial Record. But as that statute allows the clerfe six months in whioh to do the physical aot ' of transcribing such judgment (together with the pleadings, etc), and the presumption is that the clerk has done, or will do, his duty in the premises (120 la 511) it follows that the judgment must be considered "reoorded'.' from the time it is received by the clerk, and put into the file or record of the case. ^ 3 3 0^ y bsf

Ill

The point is made that as plaintiff was only the holder, and no¡5 the ownsr, of the mortgage notea sued on, the damages fif any are due) belong to his prihoipal and are recoverable only by the latter. This is not well founded. The notes aere nogotiable, and plaintiff as holder was for all purposes the owner of them. Who was the true owner was immaterial, except to meet one alleged ground for the injunction, to wit, that in the original mortgage plaintiff was both Rotary and mofcbgagee. Rut the fact is that plaintiff himself incurred the attorney's feds, and was himself entitled to collect the mortgage notes some thirty months before the injunction allowed him to do so. Ror these damages the defend: nt must answer, and it is n» concern of his that plaintiff will or may account to some other person having an equitable interest therein.

IT.

The objection that the principal on the injunction bond was not made a party to this suit, is without merit; defendant being a Judicial surety (G. 2. EW5)

V •

The object of an injunction bond is "to secure the payment of such damages as may have been sustained by the defendant in case it should be decided that the injunction had bean wrongfully obtained". 0. r. FOd. Hence when the injunction is finally sat aside the defendant is olearlji entitled to damages (4 La 524). And attorneys fees form part of those damages (2 La 102; 5 La 246

January 10th, 192L.

We tjsink the attorneys fees in that case were well worth at least $250; and 1c¡o for two and one half years on oyer $5000 due plaintiff, make some £>850 more. But the hond was for only $750 and the judgment was for that amount, which we think is correct.

She judgment appealed from is therefore affirmed.

Judgment Affirmed.

Hew Orleans la,


text:
    NO. 7933.
    EUREKA HOMESTEAD SOCIETY VS NATIONAL SURETY COMPANY.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIHIOH,

By his Honor John St. Paul.

This is a suit hy an ovmar against the surety on a 'ilding oontraotor's Bond. The oontraotor agreed to Build a house for $4100, payable in five instalments of $820-each as the work progressed. After the first instalment had beooae due and Been paid, "a heavy windstorm Blew down the skeleton, frame superstructure which was the only completed work at the time." Thereupon the oontraotor at first promised to reoommenoe the work, But nevertheless did not do so; and the work was then done By the owner at (substantially) the price agreed upon, that is to say for #3900; exclusive however of the #820 already paid. Whereupon the owner now seeks the return of the aforesaid #820 paid to the alleged defaulting oontraotor.

I.

In Industrial Homestead vs Junker, No. 7402 of our docket, and in Levy vs Paquette, 144 La 244, it was held that where the /dork was paid for as it progressed and a part of the work (completed and paid for) was destroyed By aooident Before the oompletion Of the whole, the loss must fall upon the owner.

The dootrine in those oases is not questioned. But it is contended that in this case the oontraot Between the parties provided otherwise ; to wit, that the work should he at the risk of the contractor until accepted as a whole, 'Phe clause relied upon reads as follows;

"I (the contractor) also agree to take out Insurance x x x on said works and to keep the same fully insured, at my expense, ur to the final delivery of said works and their acceptance by you: and at the time when the above payments are made to me I will transfer an amount of said insurance corresponding with the amount of the payment then made, to indemnify you (the owner) from loss in the event of fire before delivery to you of the works complete; it being understood that the works shall be at my risk until accepted by you as a whole.”

How it is clear that if the works had been destroyod by fire instead of by storm (or if there had been storm insurance on the works) the above clause wpuld have needed no interpretation. For the insurance having been transferred uro tanto as the payments were made, it’ is clear that the contractor was no longer protected, having been divested of his interest in the policy; and it is equally clear that the owner was not protected for want of insurable interest, unless the works were at his ###£ (the owners) risk: Ror it cannot Re pretended that the owner was entitled both to oolleot insurance money and also to demand replacement by the contractor. Hence follows one of two things; either the insurance was for the benefit of the contractor who alone oould suffer loss, or else it was for the benefit of the owner because the work stood at his risk. To this it is said, that the transfer of insurance was only "additional security"; but the contract says the contrary, viz, "to indemnify you (the owner) from loss by fire." Moreover it is difficult to see wherein the security could consist, if the contractor were entitled to the insurance when collected by the owner.

The fact is that there is simply a conflict between the first part of the clause, which clearly contemplates that the completed parts shall be at the risk of the owner and protected by insurance in his (the owner's) name, and the second part of the clause saying that the work shall be at the contractor's risk until completed.

TJnder the circumstances the conflict must be resolved against the plaintiff; for although in form the contract purports to emanate from the contractor, nevertheless it shows on its face that it was wholly prepared and confected by plaintiff. 0. C. 1968.

The simple truth is that the parties did not think of, and provide for, storm insurance. Henoe the loss must fall where both law and nature place it, that is to say upon him to whom the property belongs unless it he clearly shown that it mUBt fall on another; and we find no such showing here.

IX.

Apart from this our reading of the record convinces us that the plans and specifications under which the house was actually built were so materially altered, without the consent of the surety, as to discharge him in any event. Blaintiff's own inspector testifies that roof, foundation, and structure generally, were all changed materially, the building being constructed under "revised", plans; so much so that "it wasn’t the same house."

It is claimed that the changes were simply "extra work", oovered by the original contract; but the doctrine that slight changes in a building contract, which do not increase the surety's risk or liability, do not discharge the surety, can not apply "where the change# in the contract was so important as to constitute a new and independent contract". Ketteringham vs Eureka Homestead 140 la 176 (179)

The judgment appealed from is therefore reversed and it is now ordered that plaintiff's demand be rejected at its dost in both courts.


author: CHARLES E. CLAIBORKE, JUDGE.

text:
    Charles P. Claiborne, Judge.
    WESTERN ELECTRIC CO. VS A. MARX & SONS
    No. 7935
    January 24th, 1921.
   WESTERN ELECTRIC CO. VS A. MARX & SONS, Appellant.

ITo. 7935

Appeal from Civil District Court, Hon. H. C. Cage, Judge.

CHARLES E. CLAIBORKE, JUDGE.

Plaintiff claims $480.91 as the Balance due on the price of 20,000 IBs. of cable core sold By it to the defendants, according to the following Bid:

"Hew Orleans, la., 6-19-17. Western Electric Co.
Attention lír. H. 3?. Bethea
Gentlemen:
As per your request, we herewith Beg to submit you the following prices, for acceptance on the 20th inst, covering lot of Scrap Metals and Scrap Iron, on hand at V/arehouse Cumberland Telephone & Telegraph Company, this City, to Be handled subject to usual terms and conditions.
Approximately 60,000 lbs. of Clean Telephone Cable Lead, price $11.73 per one hundred pounds;
Approximately 13,000 lbs. of Telephone Cable, with Copper filler, price $13.73 per 100 lbs.;
Approximately 7,000 lbs. of Clean Heavy Copper wire, price $29.73 per 100 lbs.;
Approximately 20,000 lbs. of "Cable Core" (Copper filler with paper insulation) price $23.78 per 100 lbs.;
Insulated Copper VTire - one half the price of Clean Copper vjire
xxxxxxxxxxxxxx
Yours very truly,
"Signed" A. Marx & S6ns "

The defendant admitted having purchased scrap metal from the plaintiff, but denied any indebtedness. Its defense is contained in the following averment:

(4) "In answer to fourth paragraph of the petition, your defendant admits that certain scrap material, etc., was delivered to it, "but denies that the same was of the kind and quality which was agreed to have been delivered hy plaintiff to defendant. Further answering said fourth paragraph, defendant avers that it purchased from plaintiff material aggregating approximately #18,000; that it paid approximately #12,000 of said amount at one time, and after discussion as to balance due, and adjustment of differences, paid to the plaintiff, the entire balance due".

To make the defense clearer, it seems that each individual wire making part of the "Cable Core" was covered with paper to secure insulation; while the aggregate of the individual wires composing together the cable as a \diole was surrounded or bound or held together with cotton cord as a binder. A segment of the cable offered in evidence shows that fact. The defendants contended that they were entitled to a deduction of on account of the weight of this cotton cord, and to 1for the labor of removing or burning it off; amounting to #254.93. In other words bought the copper net weight and not gross weight. Whether the defendants are entitled to this deduction of is the first question presented in this case. The second question is whether the payments made by the defendants were in full, or aniimii.inui'l. ¿t**-

There was judgment for plaintiff as Sprayed for, and the defendants have appealed.

H. F. Bethea, traveling salesman in South Carolina for the plaintiff company, testifies;

On June 19th, 1917, he was located in Hew Orleanw and had charge of plaintiff's warehouse and office; they had on hand seven car loads of various kind of scrap metal; they called for bids on the same; they received from the defendant the bid mentioned above dated June 19th, 1917; upon receiving this bid they wrote to defendants the following letter:

" June 21st, 1917
A. Marx & Sons m-
Gentlemjtn,, Confirming telephone conversation to-day relative to quotation submitted for certain junk at 929 Howard Avenue on June 19th, we accept your prices for this junk material as follows: Lead, 11.73 ewt.; cable, 13.73; copper,. 29.73; cable core, 23.78; insulated copper wire, 14.865 & c .
^ In your quotation you make reference to clean telephone cable and heavy copper. We áre disregarding this specification, but assune that you accepted it and made your bid just as the material appears in our warehouse".
XXXXXXXXXXXXXX
This material will be sold under the above conditions with further provision that it be weighed over the pub- // lie certified scales & c.
This letter the defendants answered as follows:
"Hew Orleans 6-22-17
Western Electric Co.
Gentlemen: We have yours of the 21st inst. accepting our offers on Junk, for which we beg to thank you. However, please understand that the price on the scrap iron is $17.75 per ton, and not per 100 lbs. We have no objection to weighing the material over the I. C. Public Scales & c".

The witness knows by hearsay that Marx inspected this junk before he put in any bid; after witness had delivered the Junk, he sent the bill to be collected; he was informed that the defendants would not pay it; he immediately went down to see Marx who told him f

"that we had delivered cable core to him with cloth wrapper between and that he had bought - he told me that we had delivered a cloth insulated cable core with cloth insulation instead of cable with paper insulation, and that he would make such deduction on account of not having gotten what he bought";

the dispute arose over that part of.'the bid reading:

"approximately 20,000 of cable core "(copper filler with paper insulation) price $23.78 per 100 lbs.";

the defendants got

// "cable core with coppep filler, with paper insulation, good cotton binding twine holding it in position to get the lead sheath on it";

Mr. Marx took the position that that cotton hinder holding that copper core and paper insulation together was not a copper cable core with paper insulation, and that he did not buy that material & c; the witness and Mr. Gleason, an agent of the plaintiff company, called at the office of Marx; after much conversation, they received a check from Mr. Marx' for the entire amount less $480.91 which Mr.- Marx claimed was the amount that was to be adjusted or in question;

"Mr. Gleason drew over to Marx' desk and took our bill for the entire amount - the b.ill which we had presented to Mr. Marx and with pen and ink, receipted the bill as partial payment of the total face value of the bill; there was a conversation of some several minutes as to whether it should be written in that way";

there was much conversation following as to whether the $480 was justified or not; they left Marx' office at about twelve o'clock, Mr. Gleason informing Mr. Marx that he would come back that evening and ask him to reconsider the matter as he was anxious to clpae it; when they called back in the afternoon there was nothing accomplished; Mr. Marx offered to compromise; Mr. Gleason offered Marx $25 which he refused to take; the partial receipt of the bill was the only condition on which Mr. Gleason accepted the check; even admitting Mr. Marx'contn£ti one: the difference was only $254.93 and not $480.91; he undertook to deduct^in addition^the drop in the price of the copper from the day of sale to the day on which he gave the check.

H. B. Wathal is a telephone engineer; has handled a great many shipments of wires and copper fillers which were to be sold as junk; is familiar with cables and cable cores; a man who had agreed to buy cable core, copper filler' with paper insulation would get what he had bargained for if he was tendered the cable core in this case; there are three classes of cable cores; the first like the one in suit; the second with a thin strip of paper around it as a binder with a few wrappings of twine; and the latest type, a considerable piece of paper and no twine; mass for mass, the paper hinder is heavier than the twine hinder; the filling and isolation is not generally sold stripped of all binding because it makes no difference in the value of it.

G. W. Swanton was employed by plaintiff in 1917; there Vías no cable core insulated with anything else but paper delivered to Mr. Marx; the cable core in suit is copper wire with paper insulation.

Edwin Marx sworn for the defendants says that he has been in the junk business since 1895;

"the material that he bid on was cable core with paper insulation and what was delivered to him was cable core laid in paper-cord binder, and also coppeir core with paper insulation, with paper and cord binder";

when they buy materials they make a record of just what they wili, weigh after the foreign material is removed; in the case of cable core with paper insulation they figure a loss of one-half of one per cent by burning off the paper; he calculated a loss of 2£# by taking off the paper and cord binder in this case or a loss of 522 pounds; the charge of 1is usually made for cleaning the copper free of the paper and cord binder; there is also a charge of 3/4 of a cent a pound for depreciation in value from ‘the time the goods viere received by them and the time the plaintiffs accepted their check; by copper filler with paper insulation is understood in the trade to mean absolutely without any paper or cord binder; he offered to pay the plaintiffb bill less $480.91; thenrefused to accept it; he offered to submit the matter to arbitration which they refused; Mr. Bethea and Mr.Gleason came to his office and after severl hours wrangling he told them that they owed him the entire bill or nothing, and that unless they were willing to take the check he offered, which was the amount of their bill less $480.91, he would return the cable.

"He (Gleason) got very excited and picked üp the statement he had made and the check and walked out of the office and the next thing he heard about it, he had the check certified and had used it. He considered that this closed the transaction, until about two weeks later

he had a letter from him reopening the matter & o; he has bought the same class of materials from the plaintiff on previous occasions and made the same deductions claimed by him, but cannot remember any particular instance; after the cable was delivered to them the price of copper went down; they did not inspect the cable before bidding on it; they bid on material so often that they do not find it necessary to inspect the goods; there never was any bill received; he v/ould not have accepted a receipted bill, unless it had been receipted in fill, and he is sure from the way Mr. Gleason talked and acted that he would not have receipted it in full.

She first contention of the defendants in their answer that the material delivered to them was not of "the kind and quality" which they purchased, is refuted by the segment of the "cable core" introduced in evidence, and by the testimony of the witnesses váio swear that the segment correspnnds with the description contained in defendants' bid of "cable core", copper filler with paper insulation"; we have examined the segment and find that each wire is insulated with paper and that the whole is held together with a binding of cotton cord. But the insulation of the several wires, and the binding of the aggregate of the wires to form a cable, are different propositions. The defendants say that they understood that the binding was to be of paper, But it does not appear that there was anything said about the material of the binding, eo nomine. But what the plaintiffs intended to sell to the defendants vías made unmistakable to them by the correspondence that followed the bid. When defendants specified in their bid for "clean telephone cable", jihey were quickly informed by plaintiff by letter that "they disregarded this specification" and assumed that the defendants made their bid "just as the material appears in our warehouse" and that the material would "be sold under the above condition". These remarks covered every part of the bid. If, therefore, after receipt of this letter, the defendants persisted in their bid, they have only themselves to blame if the cable delivered to them did not meet their expectations. C. 0., 2521 (2497).

But are the defendants entitled to a deduction on account of the extra weight of the cotton cord as a hinder? They do not contend that they would he entitled to a deduction if the hinder had been of paper. There Is no reason that they should, because the hinder was of cotton. They had seen, or should have seen the "cable core" before closing the bargain. Besides, the testimony is that paper binding is sometimes heavier then cord binding.

But the defendants seem to have provided for the weight of the binding; for while they bid $39.73 for "clean heavy copper wire", they bid only $33.78 for the next item of "cable core" with paper insulation.

Having found that the defendants are not entitled to a deduction on the price of cable core bound with cotton cord, we are bound to conclude that they cannot claim a deduction for the greater labor, if any, of removing the cotton cord.

Bor the same reason they are not entitled to any indemnity for depreciation in the value of copper. Frcm the time the copper passed the scales and whs delivered to the defendants they became the owners of it, and were bound to stand any loss that might happen to it.

The defendants carried the burden of proving that the plaintiff accepted their check in full payment. 0. 0., 3333 / (2329) 1^23 A., 106; 2 H. D., 1150, 4, Ho. 6. The testimony of d

one of the defendants is the only evidence on that point. Even if we assumed that it was true, we could not conclude, as a question of law, that it established a payment in full, or es-topped the plaintiff from claiming the amount in controversy here. But that testimony is contradicted by the testimony of Bethea who Says that the plaintiff gave the defendants a receipt V' on account.'*'-It is not necessary- for us to decide who testified the truth on this point; but Bethea's testimony suffices to cast a doubt on Marx' testimony, and to destroy its probative force. Marx.has not then met the burden of proof nor made his defense certain.

The judgment of the District Court is therefore affirmed.

January 24th, 1921.


author: By his Honor John St. Paul

text:
    NO. 7939.
    EL RENO MILL & ELEVATOR CO VS H. H. DANIELS & CO, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPXMIOH.

By his Honor John St. Paul

2his is an action for damages for alleged Breach of l;v;o several contracts. The judgment Below allowed damages contract substantially as prayei for, but gave only nominal damages on the second. Defendants appealed; and plaintiffs answered, praying that they be allowed substantial damages as wall on the second as on the first contract.

I

As to the first contract: Defendants, in September 1910, bogght of plaintiffs three carloads of flour for October delivery; of which they accepted two carloads, and paid for them. As to the third carload they put off calling for it until the beginning of December; and when it reached hero, paid no further attention to it. So that at the end of January the Railroad Company notified the shipper (plaintiff) that the flour wsn still on hand. Whereupon plaintiffs, by letter and telegram, urged defendants to receive the flour and pay for it. lo a¡¡ 1 of which, defendants again paid no attention whatever; not even Answering.

IJ.aroupon plaintiff sent a representative to look after tl.r shipient; who testified, with his written contemporaneous report before him (dated ¡.ley ICthi, that defendants "gave him their word" that they would take out the flour and pay for it on "Tuesday of next week (May 23rd)J" But defendants did not take out the flour and pay for it either on that day or any other day.

And so,after waiting until June 17th, plaintiffs again v<ired defendants to state their intention; to which telegram defendants again paid no attention. iVhich telegram was confirmed by letter of the same date, v.-herein plaintiffs said, "Wo desire to know at once whether or not you.intend to take up this draft, so that we will know how to govern ourselves. Please let us hear from you". To which letter defendants answered by letter on June 20th, "we will take up your dra^iPby June 25th as promised your Mr. Humphreys when he was here, and which was agreed to by him". But this answer never reached plaintiffs.

On June 26th (Monday) defendants wrote again, "lour letter of June 22nd received. ¡íe note that you have made other arrangements regarding the oar now here. We sent to the Bank last Friday (June 2Crd) to pay your draft, and were told by the note clerk that you had ordered it turned over to some one else, n'e also note you have cancelled our order for the 500 barrels duo us (second contract); we are surprised at your actions as they are not in accordance with the agreement made with your Mr. Humphreys whilst ho was here x x x. As per our letter of June 20th, we are ready, able and willing to take the 500 barrels due us." In which vie observe not a word of, protest against turning over the oarload of flour on hand, beyond a very mild expression of surprise.

Be this as it may; defendants swear that Hunphreys gave them until June 25th to take up the draft. But oh observing tte#' June 25th was a Sunday, they explain that no date was fixed, but that the delay given was 30 days, which extended to that day; Mr Humphreys being here "about May 20th.”

But the fact# is that the contemporaneous report of Islr. Humphreys, which forms p.'.rt of the res gestae, shows that he was in this city on May 16th, on his way to Havana; that he reported (to his father) that Mia interview with defendants had taken place that day, and he had granted them only until the following Tuesday; that ho requested to be informed by Cable at Havana in case defendants defaulted, as lie could "arrange to oomo back this way if necessary." Ail of which is far more conclusive than any testimony given nearly tan years after the ooourenoe. And moreover note this; that 20 days from Hay 10th (about which there can be no doubt whatever! extend to June 15th and not to June 25th.

We hove therefore no more doubt than had the diatrlot judge, that defendants were not given until June 25th, to take up the draft; and that when plaintiffs turned over the flour to a broker on June 19th, they had indulged defendants beyond any possible time agreed upon.

As to the quantum of loss upon the flour, the testimony shows that it was turned over to a highly reputable broker to be disposed of to the best advantage; that he had the flour examined and found it in bad oondition; that he sold it on July 3rd for the best price he oould obtain after trying (say two weeks from June 19th).

A great deal of testimony was -taken to show that flour improves in quality whilst it lies in storage, and that the presence of weevils does not damage it or lessen its value. But the district, judge was not favorably impressed by this line of testimony, and neither are we. Still all this matters not; for the fact remains that a reputable broker, endeavoring to do the best he oould for his clients, oould get no better price for the flour than he did, And that one fact carries much more weight with us that we are at all disposed to attach to the speculative opinions of witnesses testifying ten years after the event,

The loss on this contract was #1 a barrel on 191 barrels (082 sacks); plus $66.86 of charges; a total of #267.86.

XX

The second contract was entered into in January for February delivery; and suffice it to say, without going into details, that defendants acted about this contract much in the same manner as they did about the first. Sothat plaintiffs cancelled it on June 22nd, saying; "The flour is now worth delivered in Mew Orleans, We will expect you to stand the difference (50 cents a barrel on 500 barrels)".

To establish this claim plaintiffs rely exclusively an the testimony of Humphreys, as follows; " x x x The contract was breached by Daniils & Oo, by reason of which we suffered damage of 50 cents per barrel, or $260 in the aggregate, baoause of the fall in the market price of flour xxx (and again) Said flour was not sold to any other person as a separate parcel of flour, but was disposed of in the usual course of trade".

It will be observed that the witness does not say that the flour was sold for less than the price which defendants had agreed to pay. And the proposition is therefore simply this; that because the market price of flour dropped 50 cents a barrel in Mew Orleans, therefore an Oklahoma miller (with all these broad United States, and the whole world besides', as a market) thereby lost 50 cents a barrel on each barrel of flour (even though still in his own mill) which any Hew Orleans merchant had agreed to buy, but did not buy; and whether or not the flour could he sold (or even had. been sold) in ilew York or San Francisco,or london or Hong Kong, or El Heno, for a price sufficient to net the miller as muoh, or even more than the not price agreed upon with the Hew Orleans Merchant.

June 13th, 1921.

Upon which, as a proposition of law, we v/ill not elaborate; for it suffioes for this oasey to say that the evidence shows the "market price" of flour in Hew Orleans had not fallen atitall, and that actual sales took place at a price even higher.

As to this contract the trial judge allowed only nominal damages |»2); and this we think correct.

The judgment appealed from is therefore affirmed.

Hew Orleans la,


author: By his Honor John St. Haul.

text:
    NO. 7940.
    MRS ELIZABETH STEWART VS BULTMAN SONS & CO, ET AL
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OBIHIOff,

By his Honor John St. Haul.

This is an action -under the Workman's Compensation tatute, Brought hy a dependent mother for the death of her son. The latter was killed in the course of his employment and in the performance of his duties; towit, whilst operating a motor-driven vehicle, or automobile, used hy defendants in the conduct of their business.

It has been decided (since the judgment herein rendered below) that operating a motor-driven vehicle for business purposes, constitutes "operating an engine or other machinery", within the meaning of the Workman’s Compensation Statute. Haddad vs Commercial Motor Truck Co, 146 La 898. Hence the only question now involved herein is the amount of the compensation due.

The basis of compensation under the statute is the employee's "average weekly wage"; which the statute itself defines as being "the annual earnings of the injured employee divided by, fifty-two"; except where the employment has been for less than a year, or the rule is otherwise impracticable (Acts of 1914 p. 53)

In the case before us the deceased had been employed steadily for a full year, and the application of the rule offers no difficulty whatever. During the 52 last full


author: By his Honor John St. PAul.

text:
    NO. 7942.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    LEO FELLMAN VS MRS. M. A. SPORL, ET AL.

   opinion.

By his Honor John St. PAul.

Plaintiff appeals from a judgment sustaining an xception of Ho Right or Cause of Action to a petition claiming a oommission on the sale of certain real estate;

which ha sets forth fin substance), that he was employed for a period of ninety days to sell said real estate; tti&t after the expiration of said ninety days, he nevertheless continued his efforts to sell said property by advertising and submitting the same to prospective purchasers "with the knowledge and consent of defendant"; and did thereby succeed in interesting a purchaser, with whom (however) defendant dealt directly and to whom she sold the property "without further reference to petitioner and for the purpose of avoiding the payment of a oommission on said sale".

I.

If "with the knowledge and consent of defendant", as alleged, plaintiff continued to make bona fide efforts to sell the property, and did suooeed in finding a purchaser, with whom defendant dealt and to whom she sold the property as the direct result of plaintiff's efforts, we have no doubt that plaintiff is ehtitled to his compensation both ex aequo et bono, and because in a general way the principle of tacit reoonduotion applies to a oontraot of hiring af) well ag to a lease of property. Newman vs Longshoremen’s Ass'n, 11 Orleans Appeals 38; National Automatic Alarm Co vs N. O. N. E. R. R. Co, 115 La 633. Of course the question whether or not the sale of the property was the direct result of plaintiff's efforts is one of fact, to he determined when the merits are heard.

IX.

It is urged that the alleged knowledge and oonsent of defendant can he proved only bp parol evidence; that since the matter relates to real estate, parol evidence is inadmissible; hence the plaintiff can offer no evidence to sustain his claim; wherefore his petition shows no right of action, since a right of action which cannot he proved t* and a right of action whioh doAnot exist, are one and the same (Be non apparentihus et non existentihus eadem est lex).

But parol evidence iia admissible to establish a contract to pay compensation for securing a purchaser of I* real estate. Houston vs Boagni, Mc Gloin 164. And the reason A is that the subject matter of such contract is personalty (money compensation for services); parol evidence being inadmissible as to real estate "only where the offer of the evidence is for the purpose of affecting the title to such real estate" Bernheim vs Pessou, 143 La 609 (613); Bellocq vs Gibert 36 An 565 (568).

January 24th, 1921.

As to the written instrument figuring herein, it is clearly a mere contract of employment, and not a power of attorney.

She judgment appealed from is therefore reversed, and it is now ordered that the exception of no right or cause of action he overruled and the case remanded for further trial according to law; costa of this appeal to he home hy defendant, and all other oosts to await the final determination of the ease.

¡Jew Orleans la,


author: CHARLES p. CLAIBORITE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    John Metcalf & al vs John Barbier
    No. 7943
    February 7th, 1921.
   John Metcalf & al vs John Barbier, Appellant.

lío. 7943.

Appeal from the 29th Judicial District Court for the Parish of Plaqueminejí Hon. Leander H. Perez, Judge.

CHARLES p. CLAIBORITE, JUDGE.

This is a damage suit for the value of property of the plaintiff appropriated by the defendant and for trespass.

The plaintiff alleged that they were the owners in possession of a tract of land situated at Empire in the Pariah of PlaquemineSon the west bank of the Mississippi River .measuring two and three quarters acres front on the Mississippi River by forty arpents deep that their title is derived from John lie Donogh who acquired the said property by patent from the State of Louisiana; that the rear portion of said land extends into a part of a body of water known as "Bay Adam", where petitioners have cultivated oysters for many years past; that said Bay Adam is a shallow body of water subject to drainage; that the defendant John Barbier has trespassed on petitioners' said property and taken therefrom at least 200 barrels of oysters worth $2.00 per barrel. Plaintiffs pray for $400.00 as the value of the oysters, and for $1000.00 exemplary damages, and for an injunction restraining the said John Barbier from removing any more oysters from plaintiffs' property.

The defendants filed an exception of no cause of action which was overruled.

Por answer^ the defendants denied that the plaintiffs had any title to the area upon which it id alleged the trespass was committed; they averred "that Bay Adam" and the part thereof claimed by the plaintiffs are parts of the sea and navigable waters and as-such belong to the public, neither the waters nor bottoms thereof being susceptible of private ownership, the same belonging to the State of Louisiana by virtue of its sovereignty, and being under the jurisdiction and authority of the Department of Conservation of saicl State"; he further avers that in all that he did he was aoting in good faith under a lease from the Department of Conservation having authority in the premises; and he admits having removed oysters from the area claimed hy plaintiffs by virtue of said lease.

The case was submitted without argument.

In a careful and well considered opinion the Judge of the District Court rendered judgment in favor of plaintiffs as prayed for.

The validity of plaintiffs' title derived originally from a patent from the State of Louisiana is not questioned. The contention of the defendant, however, is that plaintiffs' title does not extend beyond the land or shore line, and does not embrace a.ny part of Be.y Adam which is a navigable body of water. It is admitted that defendant did appropriate oysters which he fished from the bed of the Bay within the area covered by the lines of plaintiffs' patent extending over upon the waters of the Bay. It is also proven that the oysters so fished had been planted there by the plaintiffs.

It is also proven that the defendant acted by virtue of a lease of water bottoms for oyster purposes from the Conservation Commission of Louisiana by virtue of Act 54 of 1914 p 126; Sec. 1 of said Act places the bed of all bodies of water connecting with the Gulf of Mexico under the exclusive control of said Commission.

The sole question for determination therefore remains, did plaintiffs acquire any right of ownership of any kind to any part of the land included within the measurement of his title, extending beyond the shore of Bay Adam and covered by its waters, which the defendants were bound to respect?

Bay Adam is a body of water surrounded by land; it lies near the mouth of, and on the west of the Mississippi in the Parish of PlaquemineS^it is connected with that River by the Doullut Canal provided with looks; this canal is about fifteen or twenty acres long; at the mouth of the Canal on the River is Empire City; plaintiffs' lands are about six acres above; the Canal carries boats from the River to the Say, and from the Bay to the River; the Bay is about one mile vdde by six miles long; the water is subject to the ebb and flow of the tide; it is salty or brackish sometimes, and its depth varies from twelve inches near the shore to six feet in the centre; a bayou in the north connects it with Bayou Chicot; another on the wfet with Half lloon Bay and Bayou Cook; two others on the south with Bayou Eerrand and Bay Cheri, on the Bast is Bayou Eontenelle. All these BayOus flow into Bastian Bay which empties into the Gulf of Mexico. This country is the seat of the great fish and oyster industry of Louisiana, which is carried on in small boats, luggers or gasoline, drawing from "fifteen inches to three and a half feet of water"; these boats all direct their outgoing course from the River into Doullut Canal, thence over and across Bay Adam into the several bayous and bays, and the Gulf of Mexico and return by the same route; some boats have to follow a certain channel which is «ti across plaintiffs' oyster beds,and sometimes get stranded and have to await the rise of the tide to clear off. At a distance of about 2500 or 3000feet from the shore is an island inside of the limits of plaintiffs' title; they planted oysters there some thirty years ago, and have continued doing so; the depth of water there is from one to two feet; it is there that the defendant committed the trespass and removed the oysters.

The plaintiffs rely upon the case of Chauvin vs Louisiana Oyster Commission and others. 12 La., 10. That case is a complete parallel to the case before us. The facts were that the plaintiffs were the owners of Section 42 of Township 21 in the Parish of Terrebonne by a regular chain of title derived from the State of Louisiana; that Section 42 embraced within its lines a part of the water and bed of Bay Crocodile; that it was a salt water Bay, connecting through Bayou East and Bayou West, Bayou Welch, and Cat Island Lake with the Gulf of Mexico; that the water varied in depth from one to five feet, and was subject to the regular ebb and flow of the tide; that the Bay was about two and one-half miles long and three quarters of a mile wide. The defendant oyster commission, which had been created by Act 52 of 1904, leased certain parts of that section th the other defendants for the oyster industry. The plaintiffs prayed for a judgment enjoining the defendants from carrying out the lease or from trespassing over any part of the property covered by their patent. The answer of the defendants, the Louisiana Oyster Commission and others, was:

"That the said Bay is a pe.rt of the waters of the State of Louisiana, which belong to her by virtue of her sovereignty, and not by any grant from the United States; that no power has ever been given by the State to any of her officers to alienate such water bottoms; that the portion of the Bay aforesaid claimed by the plaintiffs is a part of the waters of the State, to which she had title from the date of her admission into the Union; and that plaintiffs have no right, title, or 'ownership therein".

The Supreme Court disregarded the defense and said that

" the defendant commission, a mere agency of the State, could not collaterally attack the title derived by the plaintiffs from the State, which as grantor was estopp-ed to assert that at the time of the conveyance it had no title, or that none passed by the deed";

that the title of the defendants, apparently valid, could not be attacked by collateral proceedings, and had to be annulled by direct action; that what the Commission could not do, the other defendants, claiming as lessees from the Commission, could not do. The case is quoted in 130 La., 619/ and 125 La., 748 and not overruled*

_ The reasoning in that case applies with equal force to the case before us. It is reinforced by the legislation of the State and by prior jurisprudence, which have recognized the exclusive right of individuals to the use of bottoms of navigable streams, situated within the State.

Section 1 of Act 106 of 1886, being an act to regulate the oyster industry,, provides:

"That all the beds of the rivers, bayous, creeks, lakes, coves, inlets, and sea marshes bordering on the Gulf of Mexico, within the jurisdiction of this State, and not heretofore sold or conveyed by special grants or hy sale by this State, or by the United States to any private party or-parties,shall xontinue and remain the property of the State of Louisiana & o Section 2:
"That i# any river, bay, lake, bayou, cove, inlet, or pass, makes into or runs through the land of any person, and is comprised within the limits of his lawful survey, such person or other lawful occupant shall have exclusive right to use said body or bodies of water for planting oysters and other shell-fish & c",

The validity of this Statute was recognized in the case of Morgan vs Hagodish, 40 A.,- 246, when the plaintiff was declared to have the exclusive right to the use of the bed of Baycu Cook, a navigable stream, to which we have referred heretofore in describing Bay Adam. Bayou Cook is one mile long, two acres wide, and twenty feet deep. The Court said:

"The remaining question to be considered is whether or not the bayou, creek, cove or lake, denominated Bayou Cook, is an arm of the Gulf of Mexico, and a part of the sea-shore, and, as such, common property, and not susceptible of private ownership? x x x TOiether we take the criterion established by our Code or that by Justinian, and apply to either the evidence in this case, we must conclude that Bayou Cook is not an arm of the Gulf of Mexico, and that' its banks form no part of the seashore. xxx The District Judge was of the dpinion that Bayou Cook was not an arm of the Gulf of Mexico, and that its banks formed no part of the seashore - hence the land in question was not common property, but was susceptible of private ownership, and we are of the same opinion".

If Bayou Cook was not an arm of the sea, much less was Bay Adam, which is further removed from the Gulf of Mexico.

Other Acts of the Legislature also recognized the right of ownership in water beds within the State.

Act 258 of 1910 p 438 re@¡ds as follows: Sec, 1

"That tile waters of and in all bayous, lagoons, lakes and bays, and the beds thereof, within the borders of the State, not at present under the direct ownership of any person, firm or corporation, are hereby declared to be the property of the State, x x x "

Sec. 2:

" x x x Provided this Act i^ not intended to interfere with the acquisition in good faith of any waters or the beds thereof transferred by the State olfT-ts agencies prior to the passage of this Act & c x x x"

In State vs Bayou Johnson Oyster Co., 130 La., 604, the Court says on page 618:

"It may be, and probably is, true that there is no legal impediment in the way of the State's alienating such property in favor of particular individuals or corporations, save in so far as such alienations might conflict with the power vested in Congress to regulate interstate and foreign commerce & c". /sy-O' 3S '? —> - N

Prior to Act 106 of 1886 there was no statute of the State declaring that the beds of bodies of water were the property of the State and prohibiting the Register of the State Land Office from selling them. This declaration and prohibition were continued in successive acts. Act 110 of 1892 Sec. 1 p 142; Act 121 of 1896 p 170, Sec. 1; Act 189 of 1910 p 302, Sec. 1; Act 52 of 1904 p 113, Sec. 1. If the Register of the Land Office had been without right to sell such beds prior to the passage of those laws there would have been no occasion to pass them.

But we are impressed ourselves with the correctness of the Chauvin decision. The official documents of the State are entitled to full faith and credit, and to the respect of its officials and citizens. It would be an intolerable condition if the officers and citizens of the State could disregard patent issued by the State_ and paid for, an^ treat it, ■ JJloouou WJ uuo u^cvvc cum j. - _ , - --a

^"aa whatever”• // absolute nullity, worthy of no'consideration

In the first case the plaintiff claimed title to a portion of land projeoting into the Mississippi Sound and the Gulf of Mexico, and attempted to prevent the defendants from trespassing upon the same. The Supreme Court held that

"there can he no such thing in this State as private ownership of the hed of a navigable river, and a fortiori can there he no such thing as private ownership of the hed of the sea or of an arm of the sea"

and maintained an exception of no cause of action on that ground, and dismissed the suit. The distinction was thus clearly drawn between an inland body of water and a part of the sea.

The ease of State vs Capdevielle was a proceeding by mandamus to compel the Auditor and Register of the State Land Office to exeoute in favor of the plaintiffs deeds to the beds of Lake Rond and others which they contended had been granted to .them by the State under Section 11 of Act 97 of 1890 p 107.

The Supreme Court decided that it had never been the intention of the law to transfer those lakes to the Levee Board, and that therefore they were not entitled to deeds for the same. The opinion in that case oan have no influence in deciding the case before us.

The evidence establishes to our satisfaction that the defendant appropriated seventy barrels of plaintiffs' oysters of the value of $2.00 a barrel; the defendant did not testify; he admitted in his answer having removed the oysters; the only question was the quantity and halue.

The Judgment is erroneous in allowing the plaintiffs 51000.00 punitive damages. Under our jurisprudence they are no longer allowed in civil oases. 140 La., 1038; 144 La., 167; 585; 146 La., 678.

It is therefore ordered that so .much of the judgment here in in favor of the plaintiffs and against the defendant for the sum of one thousand dollars punitive damages be reversed and annulled, and ae thus amended that the judgment be affirmed, the plaintiff and appellee to pay1 the costs of appeal.

gphruary 7th, 1921.


author: Dlnkelanlel. J

text:
    A. La Nasa. -vs- Ed. T. Colton et. al.
    No. 7944.
    Court of Appeal Parish of Orleans.
    Elnkelsnlel. J.
   Dlnkelanlel. J

Plaintiff institutes this suit against defandante allaging tha ownership of a promissory nota for tha aun of | 339.40», with Interest at the rate of 7# par annua from 14th. April, 1919, until paid, oosts of protost amount to $ 3.00., Attorneys fees on amount '"sued for, ten percent, and for all oosts of Court.

_y The answer of defendants, aworn to hy them, substantially sets up the dafenoe that plaintiff was not the owner of the notes that Ulohael J. Rooney, one of the defendante, endorsed said note, but same was dona without consideration therefor) that no oonsidaratlon was given for the lssuanos of said obligation, and that same was given for an Illegal and unenforcable debt, and that no reoovery oan be had thereon. Henoe, they pray for Us-ada sabia misal of the suit.

In due oourse tha oase was oalled for trial in the lower Court, defendants absent and not represented.

Tha Kota sued on was offered In evidence and It was proved by the testimony of plaintiff

4- As plaintiff In this oase you are suelng the defendant Colton on a Note made by him and endorsed by 11. J. Rooney for $ 339.40. Does that Note belong to you?
A- Tea; I loaned Ur. Colton the money, he had no monay to get out of town) he ashed me to loan the monay on his Note and that Mihe Rooney would endorse, payable in sixty days, and It has never been paid.

Plaintiff then offered in evldenoe, the petition, citation served on both defendants, the Sheriffs return, the Note sued on, the notice of protest and return thereon, and the minute entry of default of date 36th. Uaroh, 1930.

On this evidence judgment fias rendered o y tne lower Court as prayed for.

Subsequently, a new trial was applied for, amonst other things, it was alleged that when tais cause was called for trial on the 36tn. of April, 1930, it was the seventh case on tne docket, and tnat Edward T. Colton, one* of the defendants was out of tne City in Lexington. Ky. The Attorne, wnc makes the affidavit was compelled to he in the Criminal ristrict Court at 10.30, that morning, notified Counsel on the other side, Hr. Marinoii, and advised him of that fact, tout Kr. Marinoni insited upon a trial and judgment, hence this appeal, new trial having teen denied.

It is a strange ooincidentA^hat almost the identical plea of the Attorney in this case made before tne lower Court was made in this Court^ when the case was called. Ke not toeing nresent and sending word through a friend of hie, another Attorney, that he was engaged in the Criminal District Court, and requested a continuance. But under the rule of this Court not having filed a brief, hence, was not entitle to a continuance and the case was tried. t

Since then Counsel had filed his brief wliioh has received careful and considerate attention at our fcands, and it is simply no more nor less than the averments contained in the ansvzer, and asking this Court that we remand the case in order that testimony can he taken to prove the avererr.ents of the answer.

If there is any such practice t8sd3aer\«*ast»sass!« lATt' are not aware of it, uCD. Mlwul a nor have^lseen sssiwd. to any autJprlty. bSsytohSese*. The law &f the case is plain. The mere statement is sufficient. In plaintiffs brief we find illustrations cited for the purpose required for decision 6£ this case without further controversy. " Credit given to the mater of a note is consideration sufficient to hind an accomedation endorser". Schaffter vs. Irwin. 139 L. 92.

Again, to the same effect in Weill vs. Trosclair, 42. A. 171. " The maker and endorser of a note are hound in solido for the full amount of the note". Newman vs. Pelerine. 138. L. 450. Also see Negotiable Law, Sec. 63.

For the reasons herein assigned, it is ordered, adjudged and decreed, that tne judgment of the lower Court he, and the same is now affirmed with coBts against the defendants in both Courts.

(Judgment Affirmed)


author: .by IU3 Huilux _ : 11

text:
    NO. 7945.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    SUCCESSION OF A. HILL ANNAN VS ARMAND J. CASTAING.
   OPINlOfl

.by IU3 Huilux _ : 11

This is a claim for ■balance alleged to be due by defendant on open account to tbe late firm of ¿unan 1 liainey; whose ou.tatar.ding accounts plaintiff has tbe sole right to collect.

The items of cobit are not disputed, except as to a small overcharge, to be Mentioned later <jn; and. tve defensa is that the claim 'is been paid in full, and even overpaid; for ’"btej. overpayment defendant asks judgment in reconvention.

I.

xhe firm of Annan & Rainey was -formed January 1st 1913 and dissolved January Pth 1915, being succeeded by the firm of^unan & Davidson. Defendant v>sid purchased'goods on open account from Annan i,- xiainey from the very formation of the partnership almost until its dissolution; that is to say, from January ls + 1913 to November 27th 1913. Dut he lever bought anything from the firm of ..'man i Davidson.

II.

The account sued upon is as follows;

Debits

Ill-

Upon the books of Annan *¡ Rainey defendants account stands as follows;

17.

Corresponding with the total debit of the account sued upon; and subject to credits of $4653.85 as aforesaid; thus leaving a balance of $1257.15, as herein sued for.

T.

The additional credits which defendant claims are thirteen payments as follows;

1. Seven checks in favor of Annan & Rainey dated Jany 12th 1915 to June 21st 1915, aggregating $2125.

2. One check in favor of Mr Annan, Jañy 17/16 for $200; and three checks in favor of Amad « Davidson, one Teby 2l/l6 for $175, one LIch 14/16 for '$200, one April 5/16 for $200; these four checks aggr"gating $775.

0. One check in favor of Annan 1. Rainey, dated -Au-ly $7/15, for $200.

4. One check in frvor of Annan A Rsiney, dated Ii'ott 15/15, for $000.

71.

I. The evidence conclusive ly that all during the years 1913, 1914 and 1915 defendant was constantly at plaintiff's place of business and regularly received nront’-ly statements of Mr coconut; to which he offered no objection except as to the overcharges abo^e mentioned. Jhere js th"refore not t’’P slightest doubt that he knew the balance against bin according to the books of üimsn & Rainey on December Elat 1914 was $£272.75, ana knew that this balance was correct.

Accordingly it was both proper and strictly according to law (0. C. 2166) that the seven payments to Annan & Sainar made between Jany 18th 1915 and June £lst 1915, aggregating $2125, should be imputed to this old balance instead of Á' to the new purchases now sued upon. These $2125 with $6 for cartage (say $2131.) reduced the amount of that balanoo to $141.75; thus wiping out all purchases except those of Dec 7th. 16th and 24th 1914, with which the account begins. Defendant has therefore reoeit'ed proper credit 'for these seven payments.

2. The four raynents aggregating $775, made between Jany 17/16 and Aprid 5/l6 (after the dissolution of the firm of Annan & Rainey) were credited to him on the books of Annan \ Davidson, of whom he had bought nothing. Of course he was entitled to credit for this amount; but full credit was duly given him by the Journal credit of Uarch 21st 1917.

As a matter of book keeping that was the proper way the to show credit; but be that as it may, it is clear that defendant is not entitled to double credit, which he v/ould certainly receive were he allowed both journal credit and in addition thereto the Cash oredit also. Defendant has therefore also received due oredit for these four payments.

0. She checfc of July 17/15, for $200, was duly and properly credited in the hooks on the day of its receipt. By é§ a clerical error this credit appears on the account as of July 27th, on whioh day defendant had no credit on the hooks. The credit of July 27th appearing on the aooount, is the same as that of July 17th appearing on the hooks,

4. The check of November 15th 1915, for $300, was credited in the cash hook on the day it was reoeived; hut was erroneously posted into the ledger as of November 10th, on whioh day defendant had made no payment. The oaredit of November 10th is therefore the same as that now claimed.

711.

Defendant claimed; and the Judge below allowed, certain overcharges (of whioh defendant testified to $84.10), Plaintiff in answer to the appeal, prays that this delaaiitm he not allowed; hut we see no reason for this. Defendants testimony is uncontradicted, not unreasonable, and sufficiently convincing to have satisfied the trirl judge who heard him. Vie will therefore not disturb his finding except to oorrect a clerical error in the amount. He allowed $96.75; we find only $84.10. Otherwise the judgment appealed from is correct.

February 7th, 1921.

It is therefore ordered that the credit allowed defendant against the1 main demand be now reduced from ¿96»75 to ¿84.10; and as thus snKBdSd the judgment appealed from is affirmed at defendant's cost.

Hew Orleans la,


text:
    - Alexander Locasio- -vs- -Nick Manale-
    No. 7947.
    Court of Appeal. Parish of Orleans.
    Dlnkelsplel. J.
   Dlnkelspiel._J.

Plaintiff sues defendant fox a balance of $331.85, olairaing, that from January 16th. 1914 up to July. 15th. 1916, he was engaged generally with defendant in conducting a butcher shop and a vegatable stand at No. 3801 Baronne Street, Corner of Penniston St., in the City.

That at the time of the withdrawl of plaintiff from said business, defendant retained in his possession a horse and wagon, which was used in connection with said business, a meat board and fan, and took over the open accounts which were due plaintiff aggregating the sum of $615.95., as per itemized statement annex-ed to the petition.

That plaintiff having given to defendant credits for all the monies received from him, there still remains a balance due plaintiff amounting to $331.85, for which judgment is prayed.

Annexed to the petition is an itemized statement of various and sundry customers, of said business, in various amounts due said business totaling the sum of $686.95.

To this petition defendant excepted;

First;- That the petition discloses no right or cause of action.

Second:- That in the event this exception is over-ruled, defendant excepts further, that the petition is too vague and indefinate for defendant to safely answer thereto, and prays for judgment dismissing the suit of plaintiff.

Judgment was rendered on the exception on November, 33nd. 1918, reads:- n Exceptions no cause of action overruled. That of vagueness maintained. Tendays given to answer."

A supplemental and amended petition was filed by-plaintiff on December, 9th. 1918, and amongst other statements, plaintiff reiterates and rsavere all and singular the allegations oontained in his original petition. He goes on, without enumerating, to make the same claim made in the original petition, alleging the same facts, and refers to the original Itemized account of various debtors, and prays for judgment as prayed for in the original petition.

To this supplemental and amended petition, on the 30th. Deoember, 1918, there was filed other exceptions, amongst them, that the petition is inoonsietant with the allegations oontained in the original petition, changes the oause of action set up in the original petition, and prays that this exception be maintained and plaintiff's suit be dismissed.

Subsequently, another supplemental and amended petition was filed, February, 4th. 1919, by plaintiff, in obediance to the order of Court heretofore rendered‡ claiming; 1st. Plaintiff reiterates and reavers all and singular the allegations in his original and first supplemental and amended petition. 3nd. That defendant should be required to render a full and complete accounting of all matters and things setforth in plaintiff's original and first supplemental petition; and prays, after citation, that there be judgment in favor of plaintiff for such an amount as may be found to be due by defendant to plaintiff together with interest and oosts; and in the alternative, should defendant refuse to render suoh an accounting, that there be judgment herein in favor of plaintiff and against defendant as prayed for in plaintiff's original and first supplemental and amended petition with oosts anu for general relief.

On the SlBt. of February, 1919, defendant comes into Court, reserving the benefits of all exceptions heretofore filed and objecting to same being overruled, and only in compliance with the orders of Court, denies that plaintiff was ever the owner of the various articles claimed by him, and prayB for a dismissal of plain tiff's suit and for general relief* and costs.

On the trial, neither defendant nor his Counsel were present.

Plaintiff testified;-

Q- You filed this suit against Hick Manale?

A- Yes.

Q- I show you an itemized statement of aooount filed in this suit on October, 30th. 1917, and ask you in whose handwriting it is?

A- Mine.

Q- What does it state?

A- All that the customers owed at the time we seperated.

Q- The items on this aooount Mr. Manale undertood to oolleot for you?

A- Yes.

Q- They aggregate §686.95. is that correct?

A— Yes.

Q- And a wagon §115.00. and meat board §8.00. and fan §6.00. making a total of §815.95?

A- Yes.

Q- You are not mistaken as to the items on the account*?

A- Mo, Sir.

CJ- You have given him credit for how much?

A- §394.10.

Q- That is money he gave you?

A- Yes; that he collected.

Q- These are debts that were paid?

Q- Vihat is this $300.00. ?

A- Cash money he had loaned me; he took that at the time.

Q- Then you gave credit for $594.10, which leaves a halanoe of $331.85, which the amount justly and truly due you by Mr. Manale?

A- Yes.

This is the testimony in full of plaintiff when on the witness stand.

The next and only witness is a Mrs. Elenore Graham, and she swears, without quoting her testimony whioh is entirely unnecessary, that she had an account with the firm; that she dealt exclusively with Mr. Manale from 1916 until July 1918, when she paid him for everything that she owed him, and she owed him $39.10., and she paid him that amount.

This disposes of all the testimony there is in this record.

Under this testiomy and the pleadings, the Judge of the lower Court, no written reasons in the record, rendered judgment in favor of plaintiff for the full amount of his claim. We think, both on the law and facts, the Judge erred.

In this State it has been frequently held and often decided, that a suit by one partner against his co-part -ner, for a specific sum of money claimed to be due totally/ was absolutely and unauthorized as the only right of action was one for partition. R. C. C. 2890. 15 A. 576. 31 A. 592.

The meaning of Art. 3861, C. C. is, that the rules of partition among heirs, apply to partition amongst partners; ndt that the rules governing action of partition among heirs, apply to all actions which may be exercised by one partner against another.

Lelong vs. Jones & Husband. 14 A. 714.

" iihen the action is for partition of property, and the liquidation of partnership affairs, settlement of the accounts being an incident of the partition, prescription a£ only of thirty years applies."

The exoeption of no oaue of action was sound and should have been maintained by the lower Court.

For the reasons herein assiged, it is ordered, adjudged and decreed, that the judgment of the Xxnx lower Court be, and the same is hereby reversed, annulled and set aside, and this cause dismissed at plaintiff's costs in both Courts.

-Judgment revered and Annulled-


text:
    In re, Land Developement Co. of Louisiana, Limited,- Praying for possession.
    No. 7949

    Court of Appeal, Parish of Orleans.
    Dlnkelanlal. J.
   On motions to dlsmess. ■

Plaintiff, appellee, has moved to dismiss two appelas under one number.

First; that this Court is without jurisdiction rations materia to hear the two appeals.

Seoond; that defendant having confessed judgment and admitted his want of interest in the subjeot matter in dispute, is without right to prosecute an appeal; and finally that the judgment for costs, in this oase, against plaintiff and his surety, Purnel M. Milner, for | 55.35. being below the jurisdictional value of this Court we have no jurisdiction, hence, praying the appeal be dismissed.

Originally this suit involved property valued at over $3.000.. This question came up on its merits before the Honorable, the Supreme Court of this State, and is found in the 145 La. Reports at page 1, and was there disposed of adversely to the appellants.

The Aoji of the Legislature being Act No. 19 of 1913, 1104 and whioh re-enats Aot No. 56 of the Acts of^gglS., entitled: "An Act relative to the jurisdiction of the Supreme Court and Courts of Appeal, and to authorize either Court to transfer to the other the record in any oase where the appeal waB brought up through mistake in the jurisdiction, insead of dismissing the appeal, by authorizing the Supreme Court- to transfer to the Court of Appeal in oases that may be erroneously transferred to the Supreme Court by the Court of Appeal, to be proceeded with as if it had never been transferred to the Supreme Court."

In the oase of Emile L. Schleider vs. J. Vic Leclero, Vol. 7 Court of Appeal, page 33, the syllabus reads; "Not only the principal of the mortgage note but also the demand for attorneys fees stipulated therein must be oonsidsred whether or not the appeal lies to this Court". And the ji ' 1 Ion to dismiss was a transfer of that case to^ttefiw 'Court, and citing amongst other decisions, Meyer vs. Stahr, 35 Ann. p. 57.

Subsequently in the 8 Court of Appeal Reports, p. 97, Dorothea f»sa Jaco and Josephine Jaco Baptiste vs. Abraham Jaco, the Syllabus reads:-" The test of appellate jurisdiction in partition proceedings id the value of the property to be partitioned; and where such value exoeeds $2.000., the appeal should be taken to the Supreme Court". It wab so ordered.

In*the 14th. Court of Appeal at page 375, Blix Blatz Antich vs. John Milhaljevich, the syllabus reads; "Where the assets to be administered upon by a receiver or liquidator extends $3.000., in value, an appeal from a judgment appointing suoh receiver or liquidator will lie to the Supreme Court and not to the Court of Appeal." Citing further Perkins vs. Crystal Ice Co. 119 La. p. 519. A rule to tax costs and judgment thereon are interlocatory and form part of the original proceedings. Iron Works vs. Reuss, 40 La. Ann. 114. Cunnungham vs. Lazarus, 40 Ann. 856. Cooke & Laurie Co. vs. Denis, 126 La. 413. in any The jurisdiction of this Court axsx ±ha controversy over the administration of a fund is determined by the amount of the fund to be administered. State ex. rel. Bellamore vs. Rambotis, 120 La. p. 152. Succession of Welp, 120 La. p. 64.. In this case, the amount was $3.000., simple motion to dismiss was denied, but the principle heretofore announced vías affirmed.

This Court, is therefore dearly without jurisdiction over this appeal whioh should be taken to the Supreme Court.

It is therefore, ordered, adjudged and decreed, that this appeal be transferred to the Supreme Court of Louisana, upon appellant or his attorney making and filing his affid’' -Tit* that the appeal «as net taken fox dela^and lodging a transcript of ths reo judgment beooues final. transcript of the record in ths Supreme Courtgutter this

«•Appeal Transfer red-


author: By hia Honor John St. Paul.

text:
    NO. 7951.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
    JEFFERSON D. NEELY VS WILSON & COMPANY.
   OPIHIOH.

By hia Honor John St. Paul.

Plaintiff sued out an attachment against Wilson & Co of Hew Jersey, a corporation; and Wilson & Co of ^Louisiana, also a corporation, was made garnishee. The assistant secretary of the garnishee answered the interrogatories from Chicago, Illinois, that to the best of his knowledge and belief the garnishee owed nothing to the defendant.

Plaintiff sought to traverse the answers of the garnishee; and showed by the hooks of the garnishee that the latter was indebted to a certain "Wilson & Co" located and doing business in Chicago, Illinois,

I.

It was shown that Wilson & Co of Hew Jersey had a branch# at Mobile, Alabama, and that said branch was financed entirely by the Wilson & Co located at Chicago; that is to say, Wilson & Co located at Chicago collected and paid all acoounts due to or by the Mobile branch of Wilson & Co of Hew Jersey.

It was further shown that Wilson & Co, located at Chicago have extensive dealings with other Wilson & Co looated at Kansas City, at Oklahoma City, and elswhere; which business is handled in the same way as business with the Mobile branch.

It was further shown that Wilson & Co of Louisiana also does business with the Chioago Wilson & Co In the same way as all other Wilson & Co; that Its looal employees report to "the Chioago office",; that they do not know In whose employ their own superior officers are, nor whether Wilson & Co of Chioago he a Hew Jersey or Hew fork oorporat)4n or corporation at all; that the account with the Chicago office stands upon the looal hooks as "Wilson & Co, Personal", being so kept under Instructions from Chioago, hut for reasons unknown to the looal employees.

II.

It was shown by the Secretary of £ftate of Alabama that the only Wilson & Co authorized to do business In that state Is a Hew Jersey corporation (the defendant), whioh had designated Chioago, Illinois, as its prlnoipal offloa outside the State of Alabama.

It was shown by the Seoretaiy of State of Illinois that the only Wilson & Co authorized to do business in that state is a Hew York corporation, located at Chioago.

III.

It was shown that the last indebtedness by the Louisiana corporation directly to the Mobile branch arose in February 1919 and was paid to the Chicago offioe on

Maroh 4th 1919; that is to aay, before this attachment Issued (March 28th 1919).

IT.

from the foregoing ve oonolude;

1. That there Is a close business oonneotlon between Wilson & Co located at Chloago and other Wilson & Co located at various points.

2. That there are at least three asperate corporations bearing the name of Wilson & Co ( Row York, flew Jersey, Louisiana).

2. That the garnishee was not directly indebted to the Mobile branch of the New Jersey company when the attachment issued; whioh (had it been the fact) might have led to a different result.

T.

As the declaration of Wilson & Co of New Jersey, made to the Secretary of State of Alabama, that its prinoipal office was looated at Chloago, cannot prejudice, or deprive of oorporate existence, the New York corporation actually and alone doing business in Illinois, we oan no more hold that the New York and the New Jersey corporations are one and the same than we oould hold that these two are one with the Louisiana corporation.

The fact is that they are simply distinct corporations. each holding its existence by oreatlon of a separate aovreignity. That they hear the same or similar names, and are olosely related as to their "business, matters not at all. And without elaborating thereon we may say that seperate incorporations in several states is often highly convenient, and sometimes even obligatory by law (See, for instance, La. Const, of 1898, Art 274),

December 20th, 1920.

TI.

To sum up the whole matter; The Louisiana and New Jersey corporations, which seem to be mere subsidiaries of the New York company, are however seperate corporate entities, which may become indebted to each other by reason ^''oNañy indebtednesf^the oentral or parent corporation.

We therefore oonolude that Wilson ft Co of New York: may or may not be indebted to Wilson ft Co of New Jersey by reason of holding the funde of the latter; but that Wilson ft Co of Louisiana held no funds of Wilson & Co of Now Jersey when this garnishment issued.

The judgment appealed from is therefore affirmed.

New Orleans La,


author: DlnkolBulel. J.

text:
    POER & SEIXAS. -VS- CATHERINE ZAGAMINE.
    NO. 7954.
    Court of Appeal. PARISH OF ORLEANS.
    Dlnkelaalol. ,T.
   DlnkolBulel. J.

This litigation arises out of tho following facts; plaintiff, a real estate ordinary oo-partnership, allege, that defendant ia indebted to them in tho full sum of J575.OU, with intaraat and Attorneys foes, for tule, to-witj-

Thut on June 19th. 1S17, they entered into a written oontraot with defendant, whereby she engaged their aorvioes, as real estate agenta, for tho sale of a oextain tract of land, described in the petition, and tint for 'he services they wore to receive the sum of throo per oent aomalaaicn, and taut they had an exclusive agonoy for the sals for a poriod of one year from the date of the agreement.

That on ¡Jay, 18tu. 1918, the defendant sold the property in question for the aura of §19.000.

T.iat in addition to tho foe of three per oent, fox the servioca rendered, they were aleo entitled to 30p Attorneys fees in the event of tiio non-payment of said ooiri.r.ission. That thore claim v/aa plaoed in the liando of an Attorney for oolloction, therefore, they olaira judgment for Attorneys feos in tho sum of §114.00, and for ooim.iission on tho 3ale of tho property in tho urn of §570.00., making a total sum due x>laintiff of §684.00.

Allowing amicable demand in vain thoy prayed for judgment aooordingly.

Annexed to, and made part of the jíotltion ia a oontraot signed by defendant with her mark, and par--tioular attention is oallod to said oontraot in tho provisions printed and partly erased, to-v;it;~

" Yon are autnoriaed to accept a dogosit of not loso than ICp of contract price to bind the salo and deposit same to your uooount until sale ia aonauraatad and in oase sala oannot be completad, you are authorized to return aald deposit*.

Again;- * I agreed to give you the same and exclusive agency for the term ofnix «4»- 13 months from date h.reof, to offer and sell said property".

" ily failure to notify you in writing during the terra of thia contract to discontinue same, shall operate as a renewal thereof, and extend said oontrdot to an additional six- 13 months on the same terras and conditions.*

Defendant, in her answer, admits that she entered into the oontraot referred to, but the term of said employment was for six months from the date thereof. Further admits, plaintiffs employment, and as now appears from said oontraot annexed, for the terra of 13 months, but avers, that at the time, the oontraot was made and consented to it was for a terra of six months, and as she at the time understood was so written in the said contract; that she signed her X mark with the full understanding and belelf Uiat the term of plaintiffs employment, as written in the dooument, was limited to six months, and it now appears that the word six written in tho oontraot had been blurrod up, thereby leaving the twelve as printed standing as the terra of the oontraot.

That id if the oontraot was at the tiras as now stated in the petition, she made her mark to it in error, and with the full understanding and beleif that the term of plaintiffs employment stated therein was six and not twelve months as alleged.

That she is illiterate, unable to read, writo, or sign hor nomo} that sha Is quita old and feeble, and that oho made hor X mart for signoturo to the oontrsiot for plaintiffs employment for a terra of six months only! that the flrat agreed to employ them for three months, but through the porslstanoy of said pin lntl i'f 3, she was lnduoed to consent to a term of oix months for their employment, and that oho signed said a on t mot undor the firm belief end convlatlon that the oontraot so rooited, and that ahe never consented or agreed to their employment for a term of twelve months as alleged by plaintiffs.

She admits further the sale of said property by hor on Hay 19, 1918, long after the term of alx months given end presented by her to plaintiffs had expired.

That a few days before December 19, 1917, the expiration of the six months given plaintiffs to find a puroh-"i3er for her undfer her agreement^ pi-.lntlffe applied to her for extension of the term of the oontraot to lnolude the ensuing six months, whloh she refused to do, for the re1 son th'-t plaintiff had shown no activo o’fort or diligence to find any prospeottve purohnsor of the property and further that plslntlffs had apparently done nothing to find a purchaser} that they did not even visit the property or oall upon her In refor-enoa to any sale until they applied to hor just prior to Deoomber 19, 1917, to extend the torn of s."ld oontraot.

Th t ahe, after request of plaintiffs for extension employed J. L, Onorato, another real estate agent for alx months agreeing to pay him a ooirjr.lsslon of five per oant on the amount of the price for the sale to a purchaser to be prooured by him. That said Onorato soon after December, 1917, proayrod a purahaser, arranged for the sale to Mr. A. D. DensIgor end that she paid the five per cent oommlsslon to Mr. Onorato for his servíaos and that after the 19 of Deoember, 1917, the expiration of the six months ten of their oontraot as oonaented to by her plaintiffs did not take any stepe whatever to find a purOh&scr nor did they to her knowledge ever elalm that they were employed by her during that period to find purohasers for the property in question.

rfh«t she had no Idea or knowledge that plaint If fa claimed after Deoember 19, 1917, the duid oontraot to be enforced with her; that they nevor called on her after that date about said oontraot nor did they ever make any offer to secure a purohaaer for her but on the oontrary remained dormant and Inaotlve In referenoe to the sole of her property from and after Deoember 19, 1917, whloh w&s the expiration of their employment as agent by her and that she was in total ignóranos that plaintiffs claimed any employment by her.

She denies further that ahs was to havs paid twsnty per cent attorney's fee# and finally prays for Judgment in her favor.

One of the plaintiffs. Hr. Poor, snore that the oontraot was In his own handwriting nnd made on the promises of the defendant and that thslx thore were eeveral witnesses preeent who ae suoh witnesses signed in the presence of both plaintiffs and defendant. He further testifies that the entire document, ae It now appears, was filled out at the same time, on the premises, with pen end Ink furnished witnesses by the owner of the property and that the entire oontraot was read aloud and the only question that arose was the one of commissions to be paid witness' firm, the said firm demanding five per oent and finally agreeing to three per oent and that there was sons dlsousslon to the term of the oontraot but that he lnsleted on the twelve months time because the property wee lend lying In the outskirts of the City and It woe finally agreed upon and put in the oontraot as there stated and that he made the usual efforts to sell this property offering It in the usual and ouetomary way.

C. Ii. Solx»* testified substantially that he was a member of plaintiffs firm, that he was acquainted with the defendant, that he was present when the oontraot was made and signed, that he witnessed the signatures to the oontraot, that the oontraot was for twelve months and that he refused to have anything to do with the property exoept If he oould get the signature for twelye months, he heard the oontraot read and it was read loudly and dlotlnotlyj dtseyieg he denies that there was anything said by the defendant fixing the time at three months and finally agreeing to sign at six months, that hie firm would not undertake to attempt to sell this prop» erty se agents for the owner unless they got twelve months time to do so in.

Mr». Tallo, witness for the defendant, testified substantially that ehe well knew plaintiffs' firm and ehe remembered that at about June 10, 1917 when witness vs living on Tulas# Avenue and Carrollton Avenue and defendant lived downtown, one of the plaintiffs Ur.

8elxae opportune! witness to indues the defendant to grant a oontraot to plaintiffs' oompuny for the sale of defendant's property and she Introduced Ur. Soixas to her aunt, the defendant, and"he offered to give me a present of one hundred dollars to buy a dress if 1 oould lnduoe my aunt to sign a oontraot employing plain» tiffs' firm to sell her property. Uy aunt positively declined giving plaintiffs' firm an agenoy to sell the property In question longer than throe months and she lnduoed her aunt to give plaintiffs six months time to get a sale for the property and that her aunt positively and emphatically declined to extend the the time to twelve months, although frequently proniv-d to do no." She further testified that in Deoeraber» 1917, Ur. Sextas came to see her"in trying to get my aunt to extend the oontraot an! he then subsequently made me an additional offer of a present of one hundred dollars if I oould get my aunt to sign the oontraot for twelve montha, whiah I refused to aooept or to bob my aunt at all on the subject.*

Walter Smell testified substantially that *Hr. Solxs.3 spoko to me over the phone and asked me to speak to Mrs. Fallo, .ihloh I did and I hoard Mrs. Fallo tell Ur. Soixna that her aunt would not extend the oontraot one singla doy over the six months whioh hod then expired.*

Mr. Peter 0. Maurer also testified oubst ntially that *Mr. Selxae repeatedly requested of Mrs. Fallo to got the defendant, her aunt, to extend the terra of the oontraot from six to twelve montha whioh was refused moot positively by Mrs. Fallo.*

The next witness, A. F. Zimmerman testified that ■he woo pre 'ent when tho oontraot was entered into and signed and he hoard all the negotiations between plaintiffs and the defendant and positively swears that the first term of tho oontraot was for throe months and subsequently the defendant oonsented to the six months term, but positively assured them that under no olrourautanoeo would she give plaintiffs any longer time to dispose of her property, than six months and ho never heard twelve montha mentioned at all] that he heard the oontraot read and listened to it and it was read for *6* months and he repeated /denleeuiluc* the *6* months to the defendant, because she oould not read or write and taking in his hand whilst on the witness stand he demonstrated, 'you see right here is the *6*4 He never heard twelve and oould not ha mistaken! he wanted to get a oopy of the oontraot and plaintiffs told him It was not necessary that they never furnish OOpleB."

Mies Catharine Za.trama swesrs positively that *she Is the defendant In this oaee end th.'-t Mr. Seixas together with her nleoe, Mrs. Fallo, oame to see her In referenoe to getting a oontraot to sell her piece of property and that she wanted to give them the oontraot but for only throe months and finally through persuasion(at page 34 of her testimony) /(I give it for 0 months'.

Q. Did you give It to them for twelve months?

A. Ho sir¡ no air,

Q. What did you say about twelve months.

A. Ho alr| Mr. Zimmerman who was present told me that the oontraot read for six months and they read it loudly, for six months,

She further testified that she never agreed to extend the time; that the oontraot expired the 19th day of Beoombor, 1917 and she subsequently gave the oontraot to Mr. Onorato and after the expiration of the plaintiffs oontraot, they oalled upon her In December begging for furthor time and *1 told them that the 1 had gave ray property for sole to Mr. Onorato.' 1 put my mark as I oan nails neither read nor write firmly under the belief that the oontraot was for only, six months. *

Mrs. A, F. Zimmerman was present when the oontraot was read end signed;*1 heard It read aloud, the term was read as six months! the oontraot was read by Mr. Peer.*

The testimony of defendant gives the entire olroum-stanoes of this transaction, oloarly, foroeably, and In our opinion truthfully, and It is as she alleges m her answer, to the effeot, that desiring to sell the property in question she employed plaintiffs aa her agent#

All of the testimony in this ease without referring to the testimony of eaoh witness apeoifioally prove# beyond the shadow of a doubt that the defendant, Kütilx wanting to sell her property was persuaded through the efforts of her nieoe and others possibly to piaos same in the hand# of plaintiff for «ale.

At first it was her earnest determination not to permit any agent to have her property in charge for more than three months but was finally oonvinoed that that was not time enough and under the oirouostanoee she extended the tin# from three to six months but from the witnesses' information the defendant positively refused to extend the time to twelve months and that when she signed the oontraot whioh wae read in a loud voice it was read to her "for 6 months" and under tito firm belief that this was the duration of the oontraot with the plaintiffs she made her mark for she could neither read nor writs and this testimony of hers is oonflrms* kiss by every witness produced exoept plaintiffs themselves,

Under these oiroumetanoei there MX oan be no doubt that the termination of the oontraot had long sinoe expired before she gave another oontraot to Ur. Onoro.tr who finally sold the property for Slneteen Thousand Dollars to Ur. Danslger and for whioh sho paid Ur. Onorato his commissions, five per oent of the sale.

The Judge of the Court segsmxMxmxaKM aquo heard end saw all the witnesses in this oaee and he has given us his written reasons for his judgment and which we now adopt me our own In addition to that wo have heretofore written.

•the defendant an Illiterate and aaed peraon agreed to give the plalntlffe an exoluatve agency for elx monthe to Mil a certain piece of property belonging to her. there la no doubt In ay alnd that thle waa the epeolflo agrément between all the partlea and that defendant apeóla!, ly eo understood, then thle agency was established by proper written authority there was no ohange of Intention to Ilia. It the agency to a period of six months, but the written authority to sell contained a written stipulation, that the period would be extended a further period of six months unless the defendant by written notloe to plaintiffs Informed plaintiffs to the contrary.*

•this was not the contract contemplated, and looks peculiar in view of the foot that defendant was illiterate, unable to write and unable to read the document.*

■During this letter period of six months, the defendant herself wlth^the said aid or sgenoy of plaintiffs sold the property In question, and this suit Is to rsoover the fee of plaintiffs as real estate agente based on the unknown (to her) pretended stipulations.*

•This is an error, and looks like a trlok to entrap by a written contract different from that whloh woe consented to.*

•She le not liable beyond her ooneent. Suit dismissed.*

for tho reaeona herein assigned, It Is ordersd, adjudged sad deoreed, that the judgment of the lower Court, he and the sane le hereby affirmed with ooete of both Courts,

Judgment Affirmed.