author: By his Honor John St. Paul.

text:
    NO. 8424
    FRED FRANZ. VS A. LEVITAN FURNITURE CO.
    COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

By his Honor John St. Paul.

This is a suit to oust a tenant; and the judgment below being against the latter, he thereupon obtained a suspensive appeal returnable to this court on November 2nd next, («hereupon the lessor at once brought up the transcript, and on the same day obtained an arder assigning the case for trial on October 21st.

Appellants complain that this court should not have fixed the case for trial before the return day, as was done.

Precisely the same point was made in Perro vs Bouche decided by us December 17th 1917 (Opinion Book 64, Docket Humber 7250), which was also a suit to oust a tenant, wherein the judgment below was also against the latter.

In that case the appeal had been made returnable on December 10th; but the appellee had brought up the transcript on November 30th, and on the same day had obtained an order assigning the case for trial on December 7th. Whereupon the appellant asked the court to set aside the order fixing the case for trial on December 7th, on the ground that the appellee had no right to bring up the transcript, and that the case could not legally be fixed for trial before the return day.

As to the right of the appellee to bring up the transcript; we oited the Code of Practice, Articles 59o and 884; also Barbarin vs. Armstrong, 2 La 508, and State ex rel Duffel vs Marks, 30 An 70; and then added: "In Wheeler vs Britton, 137 La 975, the Court recognized the right of the appellee to file the transcript of appeal before the return day; also to. have the ease put ea tho preference docket, if entitled to be there, and to hare it fixed on a special day as a preference case,"

la the case last cited the order placing it on the preference docket issued 17 days before the return day; and the fact that the case actually came up for trial only on the fourth day after the return day, appears to have been a mere coincidence having no bearing upon the real question before the court, towit; the right of the appellee to bring up the transcript before the return day and have the case disposed of as speedily as the nature thereof would permit.

Hence we did not think in the Perro ease, and we do not think now, that it makes the slightest difference whether the day actually fixed for the trial happens to be before or;after - the return day. Otherwise the consquena would be this; that the trial Judge would have it in his power to regulate the trial of cases in the appealate court by simply fixing the return day earlier or later, as he might see fit; which of course is altogether inadmissible.

New Orleans Da; October 31st. 1921.

On the merits the ease is simply this; defendants sot up as a special defense that they had an agreement with plaintiff, their lessor, to the effect that they might reidiiiii In the premises some 15 ór 20 days bej^dAd the term of their lease, if they could máke satisfactory arrangements with his now tenants-; and that they did h&lce such arrangements. lo all of which they swears Whilst da the othér hand* the lesSor and the hew teriáñtS SWSár positively that they had no undorotaüding and made no arrangement whatever With the defendants. And the trial Judge,whb saw and heard the Witnesses) resolved this conflict of evidence against the defendants, on Whom rested the burden bf proof.

After reading the evidence WS cSii not Say that the trial Judge manifestly erred; aiid herice,

The judgment appealed from is therefore Affirmed.


source: Caselaw Access Project

author: Dinkelspiel; J.

license: Public Domain

text:
    NO. 8432
    COURT OF APPEAL PARISH OF ORLEANS.
    MARY A. DUMAS versus E. B. VASQUES
   Dinkelspiel; J.

Plaintiff moves to dismiss this appeal relying mainly upon the fact "was a motion for a new trial filed within the time allowed by law so as to suspend the time in which defendant must apply for a suspensive appeal?" And relies on the decision &sn sic by this Court in Lemann et ais vs. Herrero, 13 Orleans Appeals p. 74, where the Court held "the delay for a new trial runs from the rendition of the judgment and not from the date when the judgment is notified. The requirement as to notioe has to do solely with the execution of the judgment and the delays for appeal.

That is undoubtedly true in so far, as judgment as in this case ooming from the District Court-, but in Justices' Courts or appeals from the First City court, the law is different and we quote from the Aot of the Legislature Ho. 314 of 1914, wherein it states:

"Tha.t no appeal from the judgment before a Justice of the Peaoe shall stay execution unless the said appeal be taken within ten days after the judgment, if it has been pronounced in the presence of the parties or when the party oast was present or represented by counsel at the trial or within ten days after the notification of it if it has been rendered on default of one of the parties provided■that no notification shall be necessary if personal service was had on the defendant a.nd in oase of appeal the appellant shall execute hie bond, eto. etc."

Revised Statutes 3088; C. P. 1139.

Subsequently by Aot Ho. 97 of the Legislature of 1918 virtually the same provisions were reenacted and further the ■doctrine of appeals from Justices of the Peaoe is decided in the 139 La. p. 633, Meyer vs. Tasques, et als, wherein the syllabus reals:

"The delay of ten days in which a suspensive appeal may be taken from the judgment of a Justice of the Peace or from a judgment of a City Court in New Orleans, when the party oast was present or represented by oouneel at the trial, begins to run from the day of the rendition of such judgment and that notwithstanding that the judgment may hays been rendered in the absenoe of suoh party and that due notioe thereof ¡qay have been served on him.

State ex rel Thomas Henderson vs. John McCrea, 40 Ann. page 20, the above dootrine was reaffirmed and it was there held:

"It is only when a judgment has been rendered by a Justice of the Peace in the presence of the parties that notification pf it oan be dispensed with. And defendant is always in time to appeal for a new trial when the judgment was not rendered in his presence and he was not notified,"

"liben a case is tried March 16th and the judgment rendered on March 19th, out of the presence of the parties, the delay for appeal commences only from the date the notioe of judgment is served.

Por the reasons assigned the motion to dismiss denied,

Motion to dismiss denied.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    THERESA ABADIE Vs ORLEANS-KENNER TRACTION CO.
    No. 8436
    May 8th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff laid her hands upon wires charged with electricity and was injured; hence this suit. She alleged that in October 1920 she was a visitor at the home of Peter Meisberg, which is situated near the right' of way of the Orleans-Kenner Traction Co.; that while at said home she went to the back fence and caught hold of it for the purpose of looking over the same; that said fence is made of chicken wire; that she then and there received a severe shock of electricity which burned both of her hands severely and necessitated her being taken to the hospital for treatment; that said wire fence became charged with electricity in the following manner; a guidewire of defendant company attached to a telegraph pole crosses the property of Peter Meisberg and holds the main feed wire; that owing to faulty construction said guidewire became loosened from the main feed wire and dropped upon the fence of Peter Meisberg; at another point said guidewire touched the live wire which operates the signal system of defendant company; that the wire fence thus became charged with electricity thus causing the injury to petitioner; that it was negligence, to construct wires over private property of Peter Heisbergt- that petitioner suffered severe pains during a period of two weeks; that she went to the hospital three times a week for treatment; and that scars remain upon her hands; that -she was unable for a period of one month to perform her regular work and lost her salary amounting to $64, and that by reason of her physical and mental anguish she is entitled to $936 more.

The defendant pleaded a general denial, and alleged

"that if plaintiff was injured it was due to her own contributory negligence",

and further alleged that it

"is not responsible for anything that might have happened due to an act of God or conditions beyond its control".

Accompanied by written reasons, the trial judge rendered judgment in favor of plaintiff for $500. Prom this judgnent the defendant has appealed.

The plaintiff, by sufficient testimony, has supported the allegations of her petition.

The cause of the accident is thus given by an employee of the company:

"The wife shook when the car came around the curve, and it broke loose and pulled away from the trolley-wire". A lineman of the company thus expains the cause:
"Well, the shaking of the wire caused the -clamp to let gp, and the wire fell x x the trolley fits' on the wire With a clamp".

A clanrp or Clasp is any instrument or contrivance used td hold two things together.

The company's argument is that all the wires and materials at this curve had been renewed within the last two months, and that if any of them proved defective it was not their fault., but an act of Bod beyond their control. It has been held that if latent defects exist in materials Used by carriers, not discoverable by plose inspection, that the carrier is not liable if they break. 114 La. 981 (995); 42 A. 673; 10 C. J. 955; 29 Cyc 473.— 3s C*-' *? 3

The law was thus stated in Jackson vs Natchez Ry. 114 La. 995:

"The defendant will have to be held liable in connection with said bridge, unless it can show that the bridge as originally constructed was as safe as the highest degree of practical care and skill could make a bridge of that class, and that, to the fullest extent that the highest degree of care and foresight could suggest, it was inspected for discovering and remedying any defects that might have developed in it from the operation of the road or other causes, and in case the defect was latent in the material, then that the material was tested before being put in position".

In the case before us, there was no latent defect in the materials. But the clamp was deficient or insufficient or had been adjusted in an awkward manner, and the defect had

"developed in it from the operation of the road".

This was a clear case of negLigence,

"The general rule seems to be that negLigence win be presumed from the sagging or breaking of electric wires". 29 Cyc 594 (C). ~3 12-/-.

In the case of Moren vs N. O. Railway and Lt. Co. 125 La. 944, the Supreme Court said on p 959:

"The duty which every one owes to so use his own as not to injure another;and where that which one uses is an agency of an extraordinarily dangerous character,, the law throws upon the user the burden of the greater care". 21 Am. & 2. E. L. p 466; 20 C. J. p 360; 116 La. 1033.

The plea of contributory negligence is not sustained. The burden of proof was upon the defendant. 145 La. 334,(338); 112 La. 599; 29 Cyc 601 (b); 20 C. J. 383. The plea is based upon the testimony of an employee of the defendant Company who testifies that he saw the dangLing wire, and that when the plaintiff approached the fence he halloed to her:

"Don’t touch nothing around here because it is hot"; she didn't pay any attention; she grabbed hold of the wire fence and she got a shock. The plaintiff says that this employee, who is sixteen years old, was inside of the house at the time she jumped on the fence, arid that -» „
"he did not say anything to her".

At any fate this employee's words were not sufficiently explicit to warn her of the danger, otherwise we cannot presume that the plaintiff would, have knowingly exposed herself to the danger.

"The Courts generally hold that the presumption is that the person injured was in the exercise of due care, basing the presumption on the natural instinct of preservation". 29 Cyc 596.

The amount of damage is the only remaining question. Although^as is customary in such cases, the plaintiff exaggerates the extent of her sufferings, the fact is that- she did suffer, and that there are scars on her fingers which the trial judge Saw. There was no witness to contradict the plaintiff's testimony. Both of her hands were bandaged for one week, and she was kept from her work for four weeks.

The amount allowed by the trial judge is not .shown to us to be excessive, and under repeated decisions, we leave the responsibility with him. 116 La. 1033; 123 La. 615.

Judgment affirmed.

May 8th, 1922.


text:
    NO. 8441
    COURT OF APPEAL PARISH OF ORLEANS
    TROY WAGON WORKS COMPANY versus HAMPTON REYNOLDS.
   Dinkelspiel; J.

Plaintiff alleges that under a contract had with the defendant for the purchases of four reversible wagons, at the price and sum of $335.00 each, making a total amount claimed of $1300.00.

Defendant admite that he gave an order to one N. J. Dowd, who was the agent of plaintixi .company, and agreed and contracted to deliver to defendant, these trailers with holler bearing axels; when the trailers arrived in Franklin, Louisiana, where they were to be used, it wae ascertained for the first time that they were not the type as ordered and notification was mads to the agent of that faot, and the further statement made that the oontraot hed been violated and it was neoessary to haul the gravel in the oharaoter of trailers ordered by him in building a road. And on these Issues, whether or not the agent of plaintiff company had or not promised to deliver to defendant, spindle axles hut roller hearing axles as ordered. It is oohtended by defendant further that the agent admitted that the goods in question were not as orders! and were not that type; it was further agreed between the parties, that is the agent and ths defendant, that the goods in question were to be used temporarily until the proper order as given was oomplled. with. It is shown that Dowd was a competitor amongst other agents in trying td dispose of to defendant, who. had a-large oontraot in St. Mary Parish, for the building of fifty miles of gravel road, and which oontraot had to he completed with eight months, the trailers in question, and suooeeded in so doing by his representations as to the ohraoter required. He, Dowd was fully aware of the oontraot in question, and knowing this had sold .to the defendant, the goode required; when the goods arrived at Franklin, they oame f. o. b. and as they, oould not .he delivered, without the payment of freight, whioh defendant- olalM¿ they did not owe, hut had bought at the. prioa stated. iaoluiUn* freight, but were compelled to pay 5325.35, in order to get delivery of the goods in question.

For the purposes of this cese, Dowd was the unqualified agent of plaintiff, he had sold the trailers which oould be used by the defendant, necessarily equipped with roller bearing axels, Dowd agreed and sold this particular trailers and knowing thnt it ws.s the only kind of vehicle that could be used in building the road, and doing t^e work properly, he was so informed, and he advised defendant that he gave orders to this effect to the plaintiff; whether he did or did not, was a matter entirely immaterial to the defendant. Defendant had a right to rely on this agent's statement, because for all purposes in this cese he was not only the sales agent but he ■vas the only party with whom defendant had the slightest knowledge of, and the only party that defendant could deal with.

The Judge of the lower Court in reddering judgment in favor of the defendant in an able written opinion gave written reasons Sax both for dismissing of plaintiff's suit and also the dismissal of the reconvent ional demand made by the defendant which reasons we herewith embody and adopt as our own.

"The eivdnnce shows me, that the defendant, Hampton-Reynolds, a contractor in this city, had a very large contract in St. Mary Parish for the building of fifty miles of gravel road, which had to be completed in eight months. That this obligstion rendered it necessary for Mr. Reynolds to procure hauling apparatus to move the gravel with which he was.to build the road, end that what he needed Jtfcxa was Xxtrailers, that he oould use with trucks with going at a comparatively high rate of speed — six miles and ovír per hour, snd it is in eivdence that trucks with spindle axles axe not fitted for hauling at a rate of speed exceeding four miles per hour — but the proper rate for trailers of that type is about four miles per hour. It is shown that Mr. Reynolds was in the market for these trailers, and all of the persons having them for sale undertook to get the order. Among them being Mr. N. J. Dowd., representing himself to be the agent oí the plaintiff. There ié tib doubt in my mind, from the evldenoe here; th'-t he was the agent of the plaintiff, and that he had 9úthÓ"íty to contrabt for the sale of these trailers, and consequently he had authority to ms,ke representations concerning ame. There is no shadow of doubt left in my mind that one of the essential requirements of Mr. Reynolds in purchasing these trailers was that they should be roller bearing, in order that he might use them with fast trucks, going at six miles an hour or more.

This man, Dowd, for the .purpose Of the sale; was the ■ gent of the plaintiff, and made representations that the trailers he proposed to sell were roller bearing. There is no doubt in my mind about that, and he stated that it was the Hyatt system of roller hearings Tilth which they were equipped. Previous to making that statement he had taken it up to ascertain thst feet. This ws3 an absolute misrepresentation to Mr. Reynolds. When the trailers arrived in Franklin, where they were needed imperatively; after they were taken from the railroad oompany, the foreman discovered that they were not roller bearing, but plain spindle axles, and Mr. Reynoldp, through his engineer, Mr. Garsaud, immediately got in contact with Ur. Dowd, who, for the purposes of this transaction and everything connected with it, was the agent of the plaintiff, informing him of the fact that the trailers were plain spindle and not roller bearing axles, and that the exigencies of the case Wkcx were such that he proposed as a method of minimising the damagga that the trailers be used temporarily until they could be replaced with roller bearing axles.

Dowd agreed to that. This fact was made known to plaintiff, and the plaintiff did not do anything s.o far as the correspondence shows, except to argue that he was mistaken in thinking that he needed roller bearing axles, and that the The trailers were spindle trailers would answer es well, under this agreement or understanding h- d -with the agent of the plaintiff, who,for all purposes of this sale, was the agent, because agency to do a certs in things c'-rries with it the incidental power to do everything necessary, proper or right in the premises, and this sale h'-ving been made under s, false representation, the agent down here with whom Mr. Reynolds had contracted, who had made the sale and knew the use of the property, could go into another end subsequent arranged nt or contract by which the damages would he minimized. They were sold on absolute misrepresentation. Reynolds owes nothing for them.

¿3 to the reoonventional demand the evidence shows thet Dowd informed Reynolds th!-t he could not sell the goods f. o. b. Franklin, th*t the freight would h've to he paid from the point of origin, Troy, Ohio, to Franklin, by Reynolds, and th»t he, Dowd, bound himself, bv -ep>-r?te agreement between him-elf and Reynolds, thet he, the asent, Dowd, would pay that. Under the circumstances t'-e freight hrving bren paid, and us? having been of the trailers under thet agreement, I d.-n’t think th'.t Reynolds should recover anything.

There will be judgment dismissing the plaintiff's demand and dismissing the defendant's reoonventional demand."

It has been held that the agent who in a, oeae of this chracter deals directly with the other contra -ting party, the principal is bound for his acts.

"The responsibility of the principal to third persons is not oonfined to parties where the contract has been made upon his express or implied authority. It extends further and binds the principal in all esses -where the agent is acting within the scope of his usual employment or h'-s held out to the public or to the other party es having complete authority, although in fact he has in the pertioulsr instance exceeded or violated his instructions, and aoted without authority. "

Story on Agencies, 9th Addition, p. 505, Sec. 443.

”Whatevar an agent does within the scope of his authority is in legal effect the act of his principal end is entitled to its advantages, and is also subject to its liabilities."
Liquidation of Prudential Savings & Homestead Society vs. Richard J. Gondolf, No. 7696 Ct. of Appeal.
"The principal is bound by all the sets of his agent within the soope of his authority, which he held it out to the world he possessed.”

Henderson vs. Railroad, 11 Ct. of Appeal 43.

For the reasons assigned, it is ordered, adjudged and defireed, thst the judgment of the Court a quo be end the same is hereby affirmed, costs of both Courts to be paid by plaintiff

-Judgment affirmed-


author: Charles F.Claiborne,Judge.

text:
    Rozell Mc Williams vs Mrs Anna Shaw,wife of A.N.Lewis.
    No.8446
    Charles F.Claiborne,Judge.
    June 26th 1923.

      Appeal from Civil District Court,Hon.Columbus Reid,Judge.
   Charles F.Claiborne,Judge.

This is a suit for a broker’s oommission.lt is based upon the following contract:

New Orleans La.Oct.7th 1919
To R.Mc Williams,
Real Estate Agent,City.
Dear Sir,
I hereby ofi'dr,through you, to purchase the following property,to-wit:(description) for the sum of $7,500 on terms of oash xxx possession to be given on October 11th 1919 .
Signed" Marie E.Hopkins
per Edw.J.Hopkins
I hereby accept the offer and terms made and will pay R.Mc Williams a commission of three (3ft) per cent for making sale.I will give possession in 15 days.
" Signed " Anna S.Lewis .
I accept the above.
"Signed" Marie E.Hopkins
Per.Edward J.Hopkins .

Plaintiff is a real estate agent.He alleged that the proposed purchase was "ready,able and willing to complete the said sale of the said property^but that Mrs Lewis refused to carry out the contract of sale;that by reason thereof she owes him the commission which she agreed to pay.

The defendant admitted that the plaintiff had obtained an offer from Mrs Hopkins to purchase her property,but she denied that she had accepted the offer of Mrs Hopkins;that the offer made by Mrs Hopkins provided that possession of the property was to be given to her on October 12t3l 1919 "; that defendant declined to accept this proposition unless the date of the giving possession was fixed on October 22nd ; that lire HopíciriS callad on her and told her that her offer to purchase the property WeiS rdade on the express condition that the property would be delivered on October 11th and that if it could not be delivered on that day she did not want the property at all and that the transaction was off,and that she would call on the real estate agent to demand the return of her deposit;that defendant telephoned to plaintiff's office and informed them of what iirs Hopkins had said,and she was answered that Mrs Hopkins had a right to declare the transaction at an end and to take back her deposit as there had never been any agreement between them as to the date of delivery of possession,to which defendant replied"all right'J-that shortly thereafter a representative of plaintiff called upon defendant's husband to know if defendant would not pay for the storage of Mrs Hopkins furniture until October 22nd,to which he replied that Mrs Hopkins had declared the transaction at an end to which his wife had agreed,which put an end to the matter;that inasmuch as plaintiff did not procure a purchaser willing to purchase on her terms,he was not entitled to a commission.

There was judgment for plaintiff and defendant has appealed.

The defendant Mrs Lewis,testified that when the ofSer of Mrs Hopkins was brought to her for her signature she noticed the clause that she "agreed to give the house in two daysT;she told the real estate man that she"could not possibly get out of the house in two days and that she would have to have two weeks; she said she would sign if he would "insert a clause to that effect,which he did.Then she signed the contract."Mrs Hopkins came to see her one or two days after that,and they had a conversation together;Hrs Hopkins did not accept the fifteen days clausejshe "said she could not possibly take the house under those conditions; Said she must have it in two dayskxxx The lady asked, me if she might use the telephone and X said certainly.She went and callid up her son and told him not to pay the earnest money that was to be paid that morning,not to do it,that they were not going to take the house,that they could not get it in two days}she said She would not have it under those conditions whatever not at ail,that the sale would be óff}and defendant oommunicated that to plaintiff's offloe}a few days afterwards plaintiff's office told her that the fifteen days clause would be acceptable if she would pay storage on her furniture for two weeks and drayage to and from}they told her at Mr Me Willaims office that the contract was void.

Arthur M.Lewis husband of defendant,testified that some three or four days afterwards,while he was eating lunch at a restaurant,Mr Epps, of lie Williams' of fice, who had made the deal with them, originally,tolfl him,"Mrs HOpkins will agree to your terms provided you pay drayage both going and coming and storage",the witness said"}NCthing doing".

These conversations between Mrs Lewis and Mrs Hopkins and between Mr Lewis and Epps,of plaintiff’s office,are not contradicted.Heither Mrs Hopkins not Mr Epps was examined as a witness.The testimony of Mrs Lewis is only a part of what She might have testified if permitted.lt rand the gauntlet of objections over objection sustained to defeat the efforts of defendant to prove that Mrs Hopkins had refused -to accept the delay of fifteen days and had recalled her offer,and that the defendant had notified the plaintiff of that fact.Of Course,that was the meat of the case and what testimony to that effect was given was properly admitted}it was error tó have excluded what was not admitted.

Edward Hopkihs.who signed for his mother,testified that he accepted the fifteen days clause”right afterwards, the same day".

The testimony of Mr Hopkins must yield before that of Mr and Mrs Lewis and the silence of Mrs Hopkins and of Mr Epps.The absence of these two parties raises the presumption that their testimony would have been against the plaintiff.But if it is true that the minds of Mrs Lewis and of Mrs Hopkins had met and agreed upon the a sale,would it not have appeared that Mrs Hopkins had taken some Bteps to have the title of the property examined and an act passed.Nothing of the sort appears. On the contrary,Mr H.O.Barnett,a lawyer,testifies that he has "represented Mrs Hopkins' a'll along sinos the death of Mr Hopkins for many years"xx that he knows nothing personally about this fifteen days clause;that his connection with it came about after they failed to get possession of the property.

From all these facts we must conclude that the minds of the parties never met,and that they parted definitely on the question of possession.

In the case of Be Santos vs Tansy 13 A 151 the plaintiff sued for broker's commission.He had been employed by defendant to sell three nouses.Avegno made an offer or $15,500 cash,which the defendant accepted in wrlting.At the moment of signing the act at the Notary's office,a discussion arose between the vendor and the purchaser about the payment of taxes for tne current year,concerning which they could pot agreee.They then agreed to cancel the agreement of sale.The. Court refused to grant the broker his commission on the dual grounds that the parties had not agreed upon the question of taxes and had " released each other from their reciprocal engagements""So in this case,Mrs Hopkins and Mrs Lewis concluding that they could not agree upon the question.of possession agreed to call the transaction off.

It is therefore ordered that the judgment herein be reversed and set aside and that there now he judgment in favor of defendant rejecting plaintiff's demand, at his cost in both Courts.

Judgment reversed and judgment for defendant, June 25th 19M


author: BY: WILLIAM A. BELL, JUDGE.

text:
    R. D. PITARD HARDWARD CO., INC. versus JOSEPH LEE RHODES
    NO. 8,450
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
   BY: WILLIAM A. BELL, JUDGE.

Plaintiff brings this suit against defendant, claiming the sum of $274.82 for goods and merchandise sold and delivered defendant from March 31, 1920, to April 30, 1920, all as per the itemized account which is annexed to the petition. An attested account was duly served on defendant and on December 16, 1920, same was duly recorded in the Mortgage Office in B. 1249, E. 399, for the purpose of preserving the lied and privilege of plaintiff on buildings bearing the municipal Nos. 4615-19 S. Claiborne Street, in Square Cadiz, Valence (or Upperline) and Derbigny Streets.

There are two defenses found in the answer filed herein. The first is to the effect that defendant is not the owner of the above property and improvements against which the material man's lien has been duly recorded. This contention is not borne out by the evidence in the record, and seems to have been abandoned in both argument and brief for defendant.

The second defense is one of payment in full, of the amount sued upon, and is in fact, the sole plea upon which defendant relies. As to this, the burden of proof lies wholly upon defendant, who admits the purchase, delivery and price of the goods or materials set forth in the attested account made part of plaintiff's petition.

It is contended that the obligation has been extinguished by imputations of payments as provided by Civil Code, Art. 2166; that said payments, several in amounts and largely exceeding the sum sued upon should have been credited or inputed to the items involved in plaintiff's olaim, all of which are alleged as debts which have been longest due and therefore ones which the defendant by his several payments had most interest in discharging.

The testimony of both plaintiff and defendant as found in the record as well as the documentary evidence carefully considered by us, does not support the plea of.payment by imputation. It clearly appears that between March 31, 1920, (even prior thereto) and April 30, 1920, the last sale-date of the attested account, defendant was engaged in building for other owners, (among them Peter Jung) various houses looated in other parts of Hew Orleans than the house owned by defendant and to which were delivered the goods as per items sued upon. All purchases made by defendant were charged to him in one general account. Though never troubled as to the credits to which defendant was entitled in the account presently sued upon, and which related to his own property, 4615-19 S. Claiborne Street, it was agreed, however, that certain other payments, aggregating $3450.03, should, under a written agreement between plaintiff and defendant, as shown by copy of affidavit filed in this record, be imputed entirely to what was known as the "peter Jung" Job.

The balance due on the general account amounted, on March 31, 1920, to $327.47, and thereafter all of the materials shown, on the loose-ledger sheet, to have been delivered at various dates to the Claiborne Street property up to April 30, 1920, aggregate. $274.82, the amount herein olaimed. There are innumerable other items of goods appearing on the above sheet which were purchased by defendant between the dates Juot stated, but there is no evidence or testimony that they were delivered for acoóunt of the Claiborne Street' Job.

We now pass to the consideration or examination of the several credit payments appearing on the ledger sheet, between the af or elates, as well as of several payments made by defendant subsequent to October 8, 1920, and before December 16, 1920, the date of recordation of the attested account sued upon.

Though specially challenged at the trial of this case as to whether it had been specially agreed between these litigants that all purchases after October 8, 1920 were to receive weekly settlement as contracted, defendant was forced, though reluctantly, to admit this fact. The evidence is conclusive that the payments or credits shown on the ledger account, as well as on the special accounts appearing in the record, were either in relation to other property than the Claiborne Street property, or were payments made in conformity witj^jtto aforesaid agreement, whioh agreement precluded all possiDility of imputation herein contended for by the defendant. There is no error whatever in the findings of the trial court.

February 13, 1922.

Judgment Affirmed.


text:
    No. 8453
    COURT OF APPEAL PARISH OF ORLEANS
    WINFIELD GAUCHE versus GEORGE K. FORCE.
   Dinkelspiel; J.

Plaintiff institutes this suit against the defendant alleging that on July 8th, 1931, defendant rented from plaintiff by verbal lease, the premises known as apartment No. 3 of the Prytanis Apartments, at' the rate of One Hundred and Twenty Five Dollars per month, payable in advance, for two months, beginning August 1st, 1921, and that notwithstanding amicable demand that rent for the two months had not been paid; prayed for judgment for the sn* of Two Hundred and. Fifty Dollars with legal interest from judióla! demand until paid.

It is admitted that there was an error in the petition and that the amount due the plaintiff was $300.00 instead of $260.00 as claimed by him in his petition.

The answer after pleading, the general issue admits that there was a verbal dlsousslon as to the leasing o of the premises named, hut avers that the lease was conditioned on plaintiff's securing the consent of hie prior lessee and when such oonsent was had the lease was to be «reduced to writing and signed, and no written contract having been presented defendant denies that any contract of lease was entered into either verbally or in writing, henee prays for dismissal of this suit and for judgment in hie favor.

The evidence of plaintiff is positive. Quoting from his testimony: "I had advertised the apartment for rent as the people who were occupying it were to leave for Texas, they and ¡Í asked me to advertise it for rent. Sr. Foroe answered the advertisement and visited the apartment, the janitor showed him the apartment;the next day his wife visited the apartment and.' she left, telling the janitor she would phone to me her answer the next day; on the third day she and said she would take the apartment.* ■

He testifies substantially that prior to this he had rented the place to Hr. Joeey for the sum of 0ns Hundred and Twenty Five Dollars a month; that Josey had left the apartment and permitted plaintiff to advertise the apartment for rent, subsequently paying to the landlord, the difference, twenty five dollars, between the amount of his oontraot of lease and the amount defendant was to pay, in other words he was to receive one hundred dollars a. month from the defendant, the former tenant having paid him the difference; he psoitively states in his testimony that haxxxxxic there was to be no written lease and that the wife of the defendant accepted the premises after visiting it with her husband and notified the Janitor and the maid they that they were perfectly satisfied with the apartment and would take same as agreed on, on the first of August.

The janitor, Scott Simmons testifies that defendant and his wife called at the apartment and both liked it; subsequently the wife who had the entire say in this transaction visited the apartment, was delighted with it and asked this witness whether or not he could have the apartment ready for use on the first of August; on his affirmative assurance of that fact he swears that the apartment was rented, to the defendant; he further says in his testimony that the apartment was ready on the day stated, that he notified plaintiff of this fact and the defendant not occupying it at the time specified he again notified plaintiff of that fact.

The witness, Elizabeth Mason, who is the housekeeper for plaintiff substantially testifies that she got this apartment ready as requested by defendant's wife, on the first day of August, just as the lady had requested her to- do and that defendants, who from her testimony were delighted with the apartment did not come to occupy same at the time stated.

This substantially is the testimony of plaintiff.

The testimony of defendant and his wife acknowledge that they visited the apartment in question, perfectly satisfied with them end defendant referred plaintiff to his wife, transaction who had entire charge of th e (yfewrté**** so far as he was concerned.

The testimony of 'Mrs. Force:

Q. What-did Mr. Gauche ask when he ’phoned at the house?
A. He said he had talked with Mr. Force and wanted to know if we wanted the apartment, and Mr. Foroe told him that we would take it if it was all right to me.
Q. What did you say?
A, I told him all right.
Q. What did Mr. Gauche eay in reply to that?
A. He said he would bring the oontraot. to the office for Mr. Foroe to sign.

Testifying further in referenoe to the prior lease, she ixjck testifies that plaintiff said that he had talked or communicated with the man that had leased the apartment and that he said that the man did not know anything about it, referred him that he had/rented to his wife.

Subsequently in her testimony after the conversation with plaintiff through the phone and after August 1st, plaintiff oalled up wanting to know-whether defendant would take the apartment or not and she answered that they had XKXtsat written him a letter, and he said that he had net'received any letter.

Q. Would you have taken the apartment had Mr. Gauche produced his contract for signature as he promised to do and advised you he had the consent of the present tenant?
A. Yes sir.
Q. What happened, Mrs. Force, on your visit to the premises about the rhird day okxjc after you and Mr. Force had first gone there? kraut I understood you to say you went to tim see the apartmeht.
A. I did.
Q. Who was present that day?
A. Mr. Gauche, the janitor and the housekeeper.
Q. Did you like the apartment?
A, Tee air.
Q, Did you make any statement to the janitor, Mr. Gauche or to anyone about being ready to move in the ppartment?
A. Ta No sir.
Q. None at all?
A. No sir, I had already told Mr. Gauche over the phone that we were going to take the apartment.

The question presented for our decision is whether or not there was a verbal oontraot of lease for the premises in question, for the months of August and September 1931, at the rate of One Hundred Dollars per month, or whether there was to be a written lease, and further whether or not plaintiff had the oonsent of his prior tenant to let these premises . The matters are all questions of fact and from the testimony of plaintiff and the defendant we are convinced that the oontraot in question to lease the premises for the months stated at the prioe stated, was aooepted by the defendant's wife, under the authority given her by the defendant. We are satisfied further from reading this reoord that there was no intention for having a written lease for these two months; it may have been defendant's idea, but the testimony convinces us that they were in error in this particular respeot. In addition to this there is a further reason in our opinion why plaintiff's position must be horreot,beoause he had a tenant who was paying him at the rate of One Hundred and Twenty Five Dollars a month and who had left the premises, giving the plaintiff in this case the right to zmX re-lease as best hé oould for the months of August and September. Doubtless on this request he advertised this property for rent, defendant and his wife in answer doubtless to the advertisement in question called on plaintiff, visited the apartment, were both satisfied with it and were to have occupied it and gave orders to the janitor and the maid to have it ready on the first of August; we are satisfied that the minds of ell parties° interwt^^ on this verbal contract, and plaintiff having received from his the difference former tenant/in full settlement under the lease which still had two months or so to run, and believing that the defendants would occupy the apartment at the time stated, gave up his former tenant and his contract of lease and rented to the defendants, the apartment in question at the prioe stated.

Oivil Code Art. 1811 provides: That Contraots and acceptance thereof either may be expressed or implied; implied when it is manifested by aotions, even by silenoe or by inaction, in oases in which they can from olroumstanoee be supposed to mean, or by legal presumption are directed to be considered as evidenoe of an assent.

For the reasons assigned, it is ordered, adjudged and deoreedl that the judgment of the Court aquo be and the seme is hereby affirmed, defendant to pay oosts of both Courts.

-Judgment affirmed-


text:
    NO. 8454
    COURT OF APPEAL PARISH OF ORLEANS
    STATE OF LOUISIANA versus ABBOTT AUTO CO. LTD.
   Dinkelspiel; J.

The guest ionapresented in this oaee are:

The State of Louie lana, filed a rule against the olaiming that the defendant company prior to March 1st, 1931, prsented to the State Tax Oolleotor, its affidavit, alleging that the gross reoeipts from its retail business for the year 1930 were more than the sum of $300,000*00, and leae than the eum of $400,000*00, and by virtue of said affidavit paid to the State Tax Oolleotor, who reoeived the same, the eum of $360*00, said affidavit bringing it under the eleventh olasa of Seation. 9 of dot 331 of 1930, end the lioense hwixg based on this affidavit issued under Sea. 33 of said lot.

The answer of the defendant company admits that it is engaged in the business of retail dealer in the oity Of New Orleans; denies that it has not paid the State of Louisiana, a proper lioense tax, for the year 1931; admits having paid as a lioense tax the sum of $360*00, based tm the affidavit of gross receipts in exoess of $300,000.00, and lees than $400,000*00, which defendant claims is the proper lioense tax; denies that the gross reoeipts for the operation of said business will be for the year 1931, more than the sum of One Million Dollars; denies that there is due to the State of Xouisiana, the sum of $840.00; admits that it is neoessary to present to the Oourt for inspection, its hooks, written entree, memorandums, sto., so that It* lioense due by It be duly shown. The answer further alleges that it made application for the lioense for the year 1931 on the basis of gross sales of $300,000*00 or more and less than $400^000*00, and that said lioense being of the eleventh oláss of 8eotion9 of Act 333 of 1930; alleges that their gross sales for the year 1931 will be as much as $500,000.00, but will not exceed $600,000*00 and under that section, and under the provisions oiaimed, they deposit in the. registry of the oourt the «un «X $390.'00 being the difference between the amount of $360,00 already paid and the amount due. Wherefore they pray for judgment.

Under Sect ion 33 of the Revenue Act of 1930 s

■That the annual reoelpts, capital, aalea, premiums, commissions and earnings in this "Aot referred to as a basis of license, are those for the year for whioh the lioense is granted; the standard for their estimation shall be prima facie of the preceding year if the business has been oonduoted previously by the same party or parties to whom they olalm to be successors. If the firm or company be new, the amount of gross sales for the first two months shall be considered the basis, and six times that .amount shall be estimated as the annual rsa oelpts of such business; provided, that any person commencing business after the first of July, shall pay one-half of the above rates."

This clause means that the receipts of the preceding year shall be the lowest standard upon whioh the lioense shall be estimated, prima faoie, and which the State shall have an absolute right to demand. But that if the reoelpts during the year for whioh the lioense has been granted prove to be State shall have the larger, the/rlght to olaim an amount of license based upon such increased receipts, To make oertaln that this statute is ths one the State is to be guided by is made olear by the provision of Section 33, whioh provides for the oolleotion of the lloen-' ses of the previous year and reads as. follows:

Section 33. That the business of the previous year, as also the aotual condition and results of bdsiness of the ' ourrent year, for new firms, associations or corporations,' for the purpose of oaloulating licenses, shall be ascertained by the ta tax collector in the sworn statement of the person' or persons in interest, his or their duly authorised agent or officer, made before the tax collector or his deputy; pro-' vided that if the tax collector bó not satisfied with the said sworn statement, he shall traverse the same by a rule taken in proper court, whioh rule shall be tried summarily, whether an answer be thereto filed or not. On the trial of said rule, the books and written entries and memoranda of said person or persons, firms, oompanles, oorporations or parties, shall be brought into oourt, and subjeoted to the inspection and examination of the oourt, the offioer who took khxx the rule, and such experts as he may employ or the oourt may appoint; provided, that this ±x¡c«« inspection shall not be construed as entitling the defendant to introduce in evidence said books and documents any more than he would have been without suoh tajcssakian inspection; provided, also that the license shall issue in aooordance with the said wworn statement; notwithstanding the prospeot or pendency of the rule, and the final ratification shall be made as ordered by the court.

It is evident from the seotlons of. the Statute quoted, particularly Seotion 33, that it means that the method of aseertaining the basis for adjustment or regulation of the license shall be aooepted on its faoe. The neoessity in writing this seotion was to meet the situation.prsented. It is further evident that the affidavit of the defendant company was only prima fade and not conclusive, and the State had a perfeot right to traverse. Of oourse in order to issue the license the State was compelled to take the affidavit as presented, but Seotion 33 fives the right to the State to traverse, as was done in this oase, and the isfftxtfcxixikx words prima facie whioh appear in Seotion 33, in no manner conflict, but strengthens in our opinion Seotion 33 of the Aot.

We are informed that the provisions of this Act and the intentions of same have not been passed upon by our Supreme Court and our own efforts to ascertain whether they have been adjudicated upon have been unsuccessful. We are compelled, therefore, to hold that in the many years prior to the present Act the State based its revenues from this source just as it did in the years 1930 and 31; any other rule to be now applied would be an innovation and we cannot see that the mare words of the aot differ in any respect from preceding acts on the same question.

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

-Judgment affirmed-


author: WILLIAM A. BELL, JUDGE.

text:
    STATE OF LOUISIANA VS ABBOTT AUTOMOBILE COMPANY, LTD.
    NO. 8454
    COURT OF APPEAL PARISH OF ORLEANS
   DISSENTING OPINION BY

WILLIAM A. BELL, JUDGE.

I find that the facts in this case, correctly and clearly stated in the defendant's Brief, are as follows:

"This appeal arises out of a suit By the plaintiff against the defendant for the sum of eight hundred and forty ($840) dollars additional license for the year 1921, with two.per cent per'oonth interest thoreon from March 1, 1921, and ten-'per oent attorney’s . fees on the whole amount of principal and interest.' The plaintiff alleged in its rule that the defendant-had paid as a license tax for the year 1921, the'sum of three hundred and sixty dollars ($360), based on.the affidavit of gross receipts in excess of $3Q0,000 and less than $400,000, and further alleged that the gross receipts for the operation of plaintiff's B#ainess would he for the year 1921 more than the sum of one million dollars and le3S than the sum of one million five hundred thousand dollars. That the license for said volume of business is the sum of $1,200.
"In its answer, the defendant admitted haying paid as a license tax for the year 1921 the sum of $360, Based on the affidavit as claimed, hut defendant denied that the gross receipts for the operation of said Busi-' ness, would Be for the year 1921 more than the 3um of one. million dollars, and defendant denied that there was due to the ótate of Louisiana $840, as claimed. Defendant further alleged that in applying for retail lioense t'o do. Business for the year 192l;~it made application on the basis of gross sales of $300,.000'or more and uádBr $400,000, the lioense Being $360, as provided for'in .the 11th class of Section 9 of Act 233 of 1920, and defendant further alleged that at the time of suit it hhd determined that its gross'sales for the year 1921 would Be. as much as $500,000, but would not exceed $600,000, and that, therefore, they should have applied for a license in the 9th class of the said ¿Section of the said Act, the said license for this class being the amount of $650, and defendant thereupon deposited in the registry of the Civil District Court the difference between the amount of $650, whioh was correctly due, and the amount of $060, which was incorrectly paid, to-wit, the sum of $290. This deposit in the registry of the Court leaves in dispute only the sum of $550, being the difference between the total amount already paid and that claimed by the plaintiff."

I respectfully dissent to the majority opinion herein rendered, believing an- erroneous interpretation and effect has been given to the law, as found in Act 235 of 1920, particularly Section 32 thereof, -providing as follows:

"Section 32. Be it enacted' by the Ceneral Assembly of the. State of Louisiana that the annual receipts, oapital, sales, premiums, commissions and earnings in this Act referred to as a basis of lioense, are those for the year for which the lioense is granted; the standard for their estimation shali be prima facie of the preceding year if the business has been- conducted previously by the same, party or parties to whom they olaim to be suood'asors.' If the firm or com- • pany be new, the amount of gross sales for the first two months shall be considered the basis, find six times that amount shall be estimated as the annual receipts of such business; .provided, that any person commencing business.after the first of July,'peddlers, hawkers and traveling shows, excepted, shall pay one-half of the above rates."

The plain and unambiguous language! used in the foregoing section of the law clearly provides that the license tax shall be based on the annual receipts, etc., for the year for which the license is granted. These receipts shall be "gross" receipts, as provided by Section 43 of the same Act. They are gross receipts for the particular year in which the license is granted, and for no other year.

It is to be noted that there is no contention by either litigant herein, that the basis of license payment is other than the gross receipts of the year's business in which the license is granted. That both plaintiff and defendant arc in accord on this point is plainly manifested iirthe first instance by the plaintiff's averments essential to it's cause of action, viz:

"That the gross receipts for the operation of said (defendant's) business will be for the year 1931 more than the sum of one million dollars," etc.

A like view of the matter, as taken by the defendant, is shown from it's officer's sworn statement submitted upon the original application for license to do business in 1931, where he avered as follows:

"That the said Abbott Automobile Company, limited, will, to the best of his knowledge and-belief, do business as a retailer in the year 1931 amounting to #300, 000 and under $400,000."

It follows, therefore, that the controversy in Question has not arisen out of any conflict of opinion as to the provisions of the first clause of Section 32, which provides:

"that the annual receipts, etc., referred to as a basis of license are those for the year from which the license is granted;"

but,, rather, is the whole litigation predicated upon the construction to be given the language in Section 33, immediately following the above clause, and which provides that:

"the standard for their (said'réceipts') estimación shall be prima facie of the preceding year."

It is contended for the State that under Section 33 of the Act, whenever the license tax-pollector sees fit to challenge by rule the license tax-payer's estimation of what the latter’s receipts will be for that year in which he- pays his license, the said tax collector by simply offering — as evidence Justifying his challenge — the tax-payer's previous estimation of his previous year's business — is not to be bound by the said offer, which as to the átate is merely prima facie evidence, subject by it only and never by the tax-payer, to rebuttal. Ih other words, it'is urged that the tax-payer's previous year's estimate, however damaging or unfair to the tax-payer, must be taken (according to long established custom now approved by the majority opinion herein) as a basis of estimation for the succeeding or current yoar's license, and if so taken and offered in rule to traverse, it cannot be rebutted by the defendant tax-payer. I can see no merit in this contention, and to my mind the words "prima facie"' employed by the lawmaker mean just what was plainly intended by the legislature, that is,.that evidence offered in a rule to challenge is subject to rebuttal by either party. The words "prima facie" cannot be given such a distorted and unusual construction. Prima facie evidence or proof is "that evidence which if unexplained or unoontradioted would establish the fact alleged." (Standard Dictionary of the English language). The word "evidence" in legal acceptation, "Includes all the means by which any alleged matter or fact; the truth of which is submitted to investigation, is established or'disproved." (Greenleaf, Vol. 1).

If the contention herein made be sound, the State's mere offer in summary proceedings of a tax-payer's sworn return of his previous year's business, would justify an ex parte judgment for the State upon it's mere averment that the tax-payer's returns for the current year were fraudulent or erroneous. Courts will npu seal with'approval a practice dearly erroneous, nor substitute it, of however long-standing, for the plain provisions of a statute whioh justly secures to each party litigant the fundamental rignt of disclosing all facts pertinent to the issues involved and not 'only such facts as are only favorable to one of the litigants.

I respectfully disagree with the views expressed in the majority opinion, herein which holds, in respect to that clause in Section 32 which provides that the standard for estimation shall be prima facie of the preceding year, that said clause:

"means that the receipts Of the preceding year shall be the lowest standard upon-which t.he license shall be estimated prima facie, and which- the State shall have an absolute - right to deniand."

It is obvious that in the present case the State is contending that the receipts of the previous year (1920) should be taken as the highest, not.the lowest, standard for estimating the amount of license to be paid in 1921. The word "standard" found in Section 32 is not preceded by any qualifying adjective nor should any be supplied by judicial interpretation.

May 1923.

She testimony of the defendant's bookkeeper and cashier is to 'the effect that gross Receipts of sales of automobiles in its retail department amounted-, in the year 19£0, to the sum of $1,106,500.35, but upon cross-examination this same witness swore by way of rebuttal that it was absolutely impossible, in his opinion, based upon experience.after twelve year's employment with the defendant company for said company's gross retail receipts to gave reached the sum of one million dollars during the current year of 1921.

In defendant's brief it has been stated as á fact, not denied by counsel for the state in either brief or argument, that in two recent suits against this same defendant — one by bhc ótate brought in the First CityCourt of Hew Orleans (No. 5814), and the other brought by the City in the Civil District Court for the Parish of Orleans (Ifo. 142,004) — the precise question involved in the case here on appeal was, by judgments in each case, resolved in favor of defendant. It is significant that these "sleeping dogs" have been allowed by both the City and the ótate to lie quiescent until the sovereign tax power has been forced in this case to assume the role of appellee, and here to present what seems to be a most unreasonable and distorted interpretation of the plain language of the statute.

Whatever the tax collector's practice has been in settling his difficulties with the tax-payers and however long the public, as merchants, have seen fit to accept the State's view of this matter, it is plain, in my opinion, that the language of the statute is so simple that there need be hardly any necessity for judicial interpretation thereof.

For these reasons, I respectfully dissent to the majority -opinion herein rendered.

Respectfully submitted.


text:
    Rozell Mc Williams vs George W.Soule
    No.8455
    Charles F.Claiborne,Judge.
    June 25th 1923.
   Charles F.Claiborne,Judge.

Plaintiff claims compensation for services rendered He bases his suit upon the following contract!

___ "For and in consideration of the sum of $1000 receipt of which is hereby acknowledged,I¿G.W.Soule a .resident of Camp Walton^Fla.hereby grant to Chester W.Brown,Winfield W.Gauche, H.J.Ledoux,I.B.Rennyaon and R.Mc Williams,the exclusive privilege of purchasing the property known as the old .Jockey Club property,situated on Esplanade Ave adjoining the St;Louis Cemetery Ho.3 with following outside measurements,to-wit; (then follows the description) together with all rights,ways privileges,improvements^ or advantages of said property,measurements being more or less,for the sums and price of $65,000 oash to me,provided that on or before April 15th 1218 ,the parties named shall make a deposit of $6600 to bind the sale,in whloh event they will be allowed until April 28th 1912 to have, titlq examined and to take title to the property.! will pay(R.Mc Williams a commission of 8 l/2 $ for effecting-sale,when act of sale is passed.In the event that sale is effected the $1000 named herein shall be considered as part of the purchase price of the property,but,if the sale is not effected this amount is forfeited to me without claim 6n the part of any one."
Signed March 12th 19^2.
This suit was filed April 26th 1916
The plaintiff alleged:
" That by mutual agreement entered into between the proposed purchasers,one of theirs number,to-wit I.B.Rennyson, took title to the said property in his name,the said transfer being made him by the said Soule on the 9th day of May 1912 at the price as stipulated in said agreement,at which time 'the commission of 2 l/2 f due petitioner under said agreement was :due and payable,hut which said commission-the'.Said Soule, failed and-refused and still refuses to apy petitioner,notwithstanding amioable demand;
"That the said Soule is,as stated^f Mississipi^ add has been absent from the State 'ever since the passing of said act of sale by him. to the said Rennyson,and petitioner,not desiring to submit his cause of action to the Courts of Mississipi, has refrained from filing said suit until the said Soule should •; be found within the Jurisdiction of this Court".

The plaintiff claims $1625 with legal interest from May 9th 1912 .

The defendant filed an exception of non cause of action.

Thereupon the plaintiff filed a .supplemental petition averring"that the transfer oi the said property was- m&de'. ■■ to the saiij^l .Rennyson on the 9th day of May 1912 by act- of,; sale passed before Felix J.Puig N.P.on that day,duly registered;C.O'i': B.247 folio 445,the said Soule thereby agreeing-by reason-of the'’-I,'.,;-; transfer so made by him to the said-Rennyson,that the said' - transfer should be made to the said Rennyson,one of the Signéisof the offer to purchase said property,instead of ■«*& to- all -.ó?'. .50 those who had agreed to byy same, they-all having agreed. ''tS^retb,-'4^|' and the said property being transferred, to the said Rennyson fp)?'A¿''.',{ the price agreed upon,but the said Soule consenting,as' is show^.'-ÍV.r .. ' . . ' • . ' ' - Aíí j by said act', that the same should be sold him upon different terms of credit".' A.

Answering the original and supplemental petiticn.thé’' defendant admitted that the plaintiff was',a real estáte ’ágeáSbi s-tii ; ' -V %<•.:' he admitted that he had . signed tile contract'.'sued ón,bBt.'.4^^^|:|fi' that the conditions of. said contract'.were .cdmplie¿,w^tSf.bis^^i.S% part of the other parties thereto,or • that, tie .'.sái’e'fáoiMi^^ by said contract was ever made^he further averred that the property v;as transferred to Rennyson on Hay 9th 1912 after the contract sued on liad ceased to be in force,by the failure of the other parties to comply with its conditions,and by the expiration of the time limit stipulated in said contarct;that the transfer to Rennyson ivas an ontirely different transaction from that contemplated in the contract sued on-being on terms entirely different from those stipulated in said contarct,and was effected without any assistance from the plaintiff herein;that the plain* tiff made no claim for a commission a Jr the time of the transí er to Rennyson or during the several days defenda2it remained in the City after the transfer to Rennyson;that the only reason defendant consented to allow plaintiff a commission was the cash consideration of the sale;that the only cash received in the transfer to Rennyson was Six Hundred dollars and the balance in notes payable at one,two,and three years, the whole of which were never paid,and a large portion of the property was retransferred to him.

The exception of no cause of action was overruled in hay 1919 and judgment rendered for defendant on November 3rd 1921.

The plaintiff has appealed.

It was admitted 04 the trial that the sale by Soule to Rennyson on.Kay 9th 1912 was for $600 cash and the balance in notes payable in one,two,and three years.

Plaintiff testified that the five purchaser^ named in the contract assigned their interest in it to Rennyson,and that he Vías active in getting the deal through'.

Mr Rennyson testifielT'that four gentlemen came to his office and offered to let him in on a syndicate to DUrchase. the property;he consented and put up $200;the plans of the syndicate did not materialize; the other members of the syndicate, -«¿signed their interest to him;subsequently Mr Longshore induced him to tahe the property over on a contract which he made with Mr Soule to purchase the property for a given amount and to divide the profits5that was after the first deal had fallen through;it was a separate transaction with'which Mr He Williams had nothing to do;the second transaction was conducted by Soule Longshore and himself;he himself negotiated with Mr Soule .

Frank A.Longshore is a son in law of the defendant; the two deals had no connection with one another;he went to Rennyson's to get him to take over the property because the fiwe members of the original syndicate could not comply with-the contract and di not;Hc Williams rendered no assistance in effecting the sale by Soule to Rennyson.

The Solution of this case rests in the answer to the question;was the sale to Rennyson ah execution of the combo tract Sued on? If it was^plaintiff is entitled to the commission promised by the contract;it it was not,then he.is not entitled to a commission.

Under the evidence it is certain that the contract sued on vías never consummated and that the sale to Rennyson was a separate and distinct transaction for two reasons.

/ — A compliance with that contract depended upon making a deposit of $5500 before April 15th 1912,and the title v/as to be passed on April 28th 1912 .Neither Vías done;the contract expired by limitation.

C.C.2045 (2040) " The dissolving condition is that Which,(when accomplished^operated the revocation of the obligation, placing matters in' the same state as through the obligation had not existed",

0,0.2046(2041) A resolutory condition is implied in all commutative contracts,to take effect in case either of the parties fio not comply with bhe his engagements and etc.

0,0.2047 (2042) xx when the resolutory condition is an event,hot depending on the Will of either party,the contract is dissolved by right" and etc.

This contract was a promise of sale in the nature of an option.In the case of- Jennings vs Houssiere 119 La 793 the Supreme Court said,on p.852 :"If he merely secured an option^ then,by failing to make the fourth quarterly payment within the time fixed for the exercise-of the option,he or his assigns, forfeited all rights under the contract,and there is an end of the matter 22 A 280 ,It is clear that if I aeree- to be bound on the condition,or provided,you do a certain thing within a cerr tain time^for example,if I agree that you shall have the exclusive right to exploit my lands for minerals,provided you begin operations within six.months,or pay me in advance of the expiration of the six months |50 for a prolongation of the terms, and you fail to do the thing thus stipulated to be done,I am’not bound xxx.It would seem to be a plain proposition that if I agree to lease you my uouse on condition that you pay me'^the rent in advance,and you fail to do so,I am.under no obligations to you.An option must be exercised within the time limit,on the right will be lost".quoting numerous authorities.

When a broker fails to make a sale within the time specified in hid contract,his rights come to an end,and he is not entitled to any commission. 9 C.J.587 No.13 19 CYC 240.

II The plaintiff and three of his associates had abandoned the contract and had transferred all their rights thereunder to Rennyson.Rennyson afterwards entered into new negotiations wSfth Soule and purchased the property from him tinder new terms 'of sale far less advantageous to Soule,§600 cash in a price of §65,000,taking the chances of payment which was not made infull.The sale vías not made on the terms stipulatedvin the.-oontraot sued on,nor to the same\parties,in other words it x/lvi nil In Ill'll' I )"•*- •-“-**"**W "*** ' * .Tn-y was not made bgrplaintlff and he is therefore riot^eHtritdedHse-jj£Q commission stipulated in the contract.

A broker is not entitled to a commission when the owner effects a sale with a purchaser originally procured by the broker- after the negotiations with the broker have come to an end.In Ford vs Shaffer 143 La 635 the Supreme Court said on p.636:

"She theory of the plaintiff's suit seems to oe that he had vested interest in any sale that might be made to the man whom he introduced as a prospectiife púrchaser.The doctrine wh'iohthe Court has recognized to the contrary is that a broke who has failed in an attempt to effect a sale is not entitled to a broker’s commission on a sale made afterwards by the principal to the person to whom the broker tried and failed to sell the property.132 La 817-134 La 847.

" If a broker attempts unsuccessfully yo effect a sale-of lands,and his proposed purchaser abandons the iijléa of -buying,but he is afterwards induced to do so 43ae by the principal or by another person,without being in any way influenced by the broker.the latter is not entitled to any commission'. Lewis vs Manson 132 La 817- Sec 9 C.J.p.602 S-89- See also 4 Ruling Case Law 305 -21 L.R.A.N.S.328.

Judgment affirmed.

June 25th 1923.


author: By WILLIAM A. BELL, Judge.

text:
    JOHN PUJOL VS MUEL MINTZ
    NO. 8456
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    MAY 28, 1923.
   By WILLIAM A. BELL, Judge.

This is a suit for damages alleged to have Been sustained By the plaintiff Because of rejection of title to property owned By him and sold under his written authority at public auction to defendant. The petition shows that upon refusal of defendant to take title upon the terms and conditions under which the original sale was made to him, plaintiff put defendant in default By a formal act of tender of title, and then upon refusal of defendant to finally comply with the adjudication made to him, plaintiff resorted to the-remedies provided for in Article 2611 R.C.C., By having the said property advertised and sold at public auction under a sale a la folie enchere. It is further alleged that at this second sale the property vías adjudicated for ¿75.00 less than the price for which it vías originally adjudicated to defendant; that the amount paid By the owner to the auctioneer at the second sale was $83.56; that attorney's fees incurred By plaintiff in prosecuting this action is $50.00, and that the disbursements for certificates and notary's fees, etc., was $19.30, making a total amount of damages alleged to have Been suffered because of defendant's rejection of title in the sum of $227.86.

Defendant filed an exception of no legal right or cause of action, which exception vías overruled By the trial court. The defense on the merits, as well as on the exception filed, is particularly directed against the fact that plaintiff has failed to allege or prove that the written authority given By him to the auctioneer for the original sale of this property as adjudicated to defendant, failed to contain the seller's written stipulation as to the conditions upon which the sale was to Be made, that is, whether the auctioneer was to sell for cash or on terms. There are four other grounds of exception urged in deiendant's brief now before us, none of which we think are well founded.

The written mithority given by plaintiff to the auctioneer for-the sale of this property reads as follows:

"Hew Orleans, la., February 20, 1919.
"I hereby authorize you to sell for me at public auction my property, 3336-3038 Calhouij, corner of York Street.
"Size of lot, 52'x 91' 7" 6"'.
"Description of improvements; Retired double cottage, three rooms, city water each side.
"Rent for $_ per'month, same to be sold for not less than thirteen hundred seventy-five ($1375) dollars.
"Terms and conditions: .........................
"I agree to pay thirty-five ($35) dollars commissions, etc.
(Signed) J. Pujol."

The Articles of the Revised Civil Code upon which the main defense to this suit is predicated read as follows:

"Article 2604. The sale by auction, whether made at the will of the seller or by direction of the law, is subjected to the rules hereinafter mentioned."
"Article 2065. It cannot be made directly by the seller himself, but must be made through the ministry of a public officer appointed for that purpose."
"Article 2606. This officer, after having received in writing from the seller the conditions' of the sale, must proclaim them in a loud and audible voice and afterwards propose that a bid shall be made for the property thus offered."

It is urged by counsel for defendant that he cannot be obligated to accept title to the above-described property for the reason that the last above-quoted Article of the Code has not been complied with, inasmuch as the written authority above quoted does not contain any conditions of sale showing whether the property shall, be sold for cash or otherwise, and that the auctioneer in advertising and adjudicating the said property for one-third cash and balance on terms of credit, exceeded the authority given him by the owner, with the result that' neither the owner nor himself is bound by said adjudication. Defendant particularly relies on the authority of Reinach v. Jung, 123 La., 610. In that oase suit was brought by plaintiff to oompel defendant.to, accept title to- a certain square of. ground in the City of New Orleans, which had been sold at public auotion to the defendant who thereafter refused to comply with the terms of the sale or to accept the property adjudicated to him. The action was one for specific performance, to which an exception of no cause of action was filed, followed by an answer of general denial..from a judgment for' plaintiff, defendant appealed, and the Supreme Court reversed the judgment for the reason that there had-been no authority whatever of the owner given in writing to the auctioneer, a fact which the. court held was fatal to plaintiff's right to enforce the adjudication. There was effort in that case to prove the authorization by oral testimony, which the court rightly held could not be done. It i3 trie that in that case the court said that authority in writing had not been given the auctioneer nor had he been furnished with any written conditions for the sale. We cannot see that the faots of that oase are apt plicahle to the instant case, for the plaintiff here undoubtedly gave written authority to the- auctioneer to sell, as shown hy the above document, from whioh we have quoted, failure to stipulate the terms or conditions for the sale in the' above written authority wa3 in effeet a simple authority to sell for-cash, and defendant, although purchasing on terms of cash andoredit, could have enforced his right to purchase the property for oaáh only, It is' true that plaintiff could not have compelled defendant .to purchase the -property on terms, rather than--for cash. ,OnldsiS ;'4er*\ fendánt c,ould have shown some damage resulting to him .in; ábospi^^ the property for cash rather than on-terms of or adit, > h»can|lpt" be justified in advancing this trivial .excuse'' tie "or refusal to take the property at. the ;priée. '€ adjudicated. We have carefully examined the authorities of Campbell v. Lambert, 36 An., 35, and Landeche v. Sarpy, 37 An., 836, and find no application whatever of the law therein enunciated to the instant case.

It is further contended by the defendant that plaintiff was not authorized and could not under the law sell at a sale a la folie enchere the property originally adjudicated tq him without first giving him notice of his intention so to do. This contention is made because a letter in the record snows that after defendant's default, plaintiff tnreatened him with suit for specific performance, but did not follow this oourse„ae shown by the final steps taken in this suit. Vie know of no authority, nor has any been cited to us by counsel for defendsnti that would justify this defense or argument. On the contrary, the provisions of Article 2611 R.G.C. are quite against any such-construction of the law for the- reason that in said Article it is specially provided that after the adjudication made at a sale a. la folie enchere the adjudicatee at first sale becomes a debtor-to the v.odor for deficiencies and for all expenses incurred subsequent to the first sale and protects the owner-of the property to that.-extent, but gives no advantage to the first purchaser should the amount of the second adjudication exceed that of the first. This clearly indicates that the law considers the' first' purchaser to have abandoned all rights which he could.have.nad in the premises by virtue of the first adjudication. Shis same Article provides that the sale a la folie enchere shall not be made until "customary notices" of intended'sale shall have been given, but this can mean nothing more than that due advertisement of the' property shall be made before the second sale can be legally consummated. There is no merit to the argument that the- deso.rlpti.qn of the - property 3et forth in the petition or in" the advertisement, at either sale or in the act of tender to bind the defendant is£; this case, or that the fiancf purchaser as well as the public abound have been notified that the property advertised on the second occasion was to be sold a la folie enohere,

He are quite in accord with the views taken of this case in the written reasons given by the judge of the trial aourt for refusal of a new trial where he said as follows:

"The record in this case does not disclose a valid reason for defendant's refusal to accept the title tendered to him after the auction sale. The record does show that -the auctioneer had ample and legal authority to sell the property. The advertisements•gave ample description- and location of lots sold and the title tendered included all essentials of a true description. In fact I do not see that the defendant has shown the slightest legal reason for refusing to comply with his bid at' the- sale. A new trial is denied.
"New Orleans, Oct. 25, 1921.
"(Signed) Percy Saint,
Judge."

We find no error in the judgment appealed from.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be. and the-same hereby is affirmed at' defendant's costs in both courts.

JUDGMENT AFFIRMED

MAY 28, 1925.


text:
    JOHN P. DUPONT VS HARRIS ICE CREAM CO. INC.
    NO. 8457
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    JUNE 25, 1923.
   By WILLIAM A. BELL, Judge.

This matter® originally on appeal before the Supreme Court, has been transferred by it,for want of jurisdiction ratione ¡materias, to this Court. (149 La., 729).

The appeal herein taken is from an ex parte order of the district court for the Parish of Orleans, dissolving on bond a previous order of the district court granting an injunction in favor of plaintiff and appellant, John P. Dupont, and against defendant, the Harris Ice Cream Co., Ino. The latter was enjoined from using certain commercial property in the City of Hew Orleans, for any other purposes than those stipulated in a certain written lease between the parties.

The petition for injunction was filed on July 26, 1921, plaintiff setting up the written lease, particularly the clauses thereof which prohibited, without consent of the lessor, the use of the property for any other purpose than that contemplated by the terms of the lease. Plaintiff further alleged in his petition for appeal that he was aggrieved by said order and that he would suffer irreparable injury thereby.

Defendant has moved to dismiss the appeal upon the ground that the petition for injunction does not allege irreparable injury and that, therefore, an interlocutory order to bond the injunction was not appealable prior to trial on the merits.

The jurisprudence of this State is well established to the effect that, except in very rare cases^not such as the one now before us^ an injunction cannot be dissolved on bond, as provided by Article 007, C.P., without notice to plaintiff. This court in the case of Mrs. T. L. Moses v. Joseph Traverse, 11 Orleans Appeal, 244 (decided May 4, 1914 — writ denied by Supreme Court October 26, 1914) has cited the innumerable decisions of our Supreme Qourt on. this point. All questions of law and procedure now urged in the instant case were discussed and decided by this court in that case. Oar decision therein has not been cited or noted by counsel for either of the present litigants. We find a later ruling in the case of Department of Conservation v. Louisiana Gas and Fuel Co., 144 La., 962, where the Supreme Court again reviewdt-as we had done in the oase of Moses v. Traverse — its prior jurisprudence, and again reiterateJL this same doctrine in a brief syllabus by the court itself, reading as follows:

"An injunction, once issued, should not, as a rule, be dissolved ex parte, and the same rule applies whether the dissolution be effected by motion to dissolve or by a counter injunction."

See also Van Halen v. Monroe, 50 La., 642.

The effect of dissolving on bond the Injunction previously issued herein, was clearly to reverse or-set aside the original order for injunction and to deny the.original relief granted to plaintiff, to which he was at least temporarily entitled on the face of his petition. The averment of irreparable injury in the petition for injunction was not necessary to support a cause of action by whioh plaintiff was seeking to prevent the unlawful or injurious use of his own property which was leased to another. The truth of such averment, if made, could only be ultimately determined on the trial on the merits, and dissolution on bond of the injunction as granted without notice to plaintiff, was equivalent to denial of his right to be heard contradictorily with defendant on the main issue.

The order dissolving on bond, had, under the facts of this case, the effect of a counter injunction such as was issued in 144 La., 962, and against which the Supreme Court has set its disapproval.

There can be no doubt that an appeal lies to this court from an ex parte order dissolving on bond a previous order for injunction. Article 566 of the Code of Practice allows an appeal in all oases where .an interlocutory order may work an irreparable injury. (Barrow v. Duplantis, 148 La., 149).

There is no more necessity, such as argued by counsel for defendant, that plaintiff in his petition for appeal should set forth in detail the manner in which he will be "irreparably injured" by the order from which he has appealed, than for plaintiff to set forth in detail the manner in which he is "aggrieved" by the order.

Defendant's motion is simply one to dissolve and does not set forth any ground, upon which he was entitled to such relief. It neither alleges that itfe use of plaintiff's property for purposes other than those originally agreed upon would not cause plaintiff irreparable injury,nor that the injury if suffered was one i|®/eould be compensated in money. The furnishing of bond in a motion to dissolve,carries no such implication, and even though, under Article 007 of thfe Code of Practice,such averments as above suggested had been properly made in justification of the relief prayed for, the order should not have been issued ex parte,without opportunity given plaintiff to be heard.

IT IS,THEREFORE, ORDERED:

That the motion to dismiss the appeal be denied; that the ex parte order dissolving the injunction be set aside and annulled and that this case be remanded for further proceedings in accordance with the views herein expressed. The appellee to pay all costs of appeal.

JUNE 25, 1923.


text:
    Charles F. Claiborne, Judge.
    ELLIOTT FINKELSTEIN VS THRASOS VOURVOULIES
    No. 8460
    January 2d, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

On motion to dismiss.

Plaintiff sues for rent, for cancellation of lease, and for possession of leased premises for non-payment of rent.

This suit was filed October 21st, 1921.

Plaintiff averred that the author of his title had leaned to defendant the property No. 749 S. Fampart Street for a term of two years commencing November 15th, 1920 and ending November 14th, 1922 at a yearly rental of $1860.00 payable in monthly installments of $155.00^for which the defendant furnished his twenty-four notes, and that the defendant has failed to pay the note due October 14th, 1921. He prays for judgnent for

"155.00 with 10 per cent, attorney's fees upon one amount herein sued for, plus such additional sum as may be due for rent until petitioner obtains possession of the leased premises; x x x that the aforesaid lease be cancelled as of date November 14th, 1921; that the said Vourvoulies be cited summarily by rule to show cause why judgment should not be rendered, condemning the defendant to vacate the premises 749 and 748-750 S. Bampart Street and to deliver possession of same to petitioner; and decreeing that upon his.failure to comply with the said judgment within twenty-four hours after its rendition, a writ of ejectment issue herein commanding the Civil Sheriff for the Parish oi Orleans tó eject the defendant from the aforesaid premises and put petitioner in possession thereof".

There was judgment for defendant dismissing plaintiff's rule for possession and the plaintiff has appealed.

In this Court.the defendant and appellee has moved to dismiss the appeal

"on the ground that this Honorable Court is without jurisdiction of this cause EfttiOne materias".

.The plaintiff and appellant filed a written answer to this motion in which he says:

"That the lease sued upon is a lease-for. two years at the rate of $155 per month, or at a yearly rental of $1860.00, or total rental for the two years of $3720.00, that the jurisdiction of the Court in this case is fixed on the yearly rental which being but.$1860 brings this.cause well within the jurisdiction of this Honorable Court".

He relies upon Sec. 2156 of the Revised Statutes which reads as follows:

"UShenever the monthly or yearly rent paid by the tenant, or the lease which he shall allege to hold, shall exceed the sum of One Hundred Dollars, then the summary proceedings allowed by .the preceding section for the possession of leased property shall be instituted and carried on before any parish or district Court 'having competent jurisdiction, in the'manner provided in the preceding section, and the cases shall at all times'be tried by preference, after three days notice".

We are of the opinion that this section detemines the jurisdiction of the Court before which an ejectment suit is originally filed whether it shall be before the Justice of the Peace, now the City Court in the City of new Orleans, or before the District Court.

It has nothing whatever to do with the jurisdiction of either of the Appellate Courts.

The plaintiff in Support of his contention that this Court is vested with jurisdiction quotes a sentence in the case of Langa vs Baradat, 127 La. 542 to this effect:

"In ejectment suits, the amount of the monthly or yearly rental detemines the jurisdiction of the Courts". R. S. 2156.

But the Court proceeds to say:

"The alleged lease from Langa to Baradat was for one year at $15 a month. Hence the suit was properly brought in the District Court, and was properly appealed to the Court of Appeal. The present suit being one to. annul a judgment rendered on a matter in dispute which the statute values at $180, -it is evident that the Supreme Court is without jurisdiction rations materias. The Court of Appeal has the same jurisdiction to annul as it had to affirm the judgment".

The Supreme Court evidently meant that this section "determined the jurisdiction of the Courts" before which the suits were originally brought, in accordance with the Constitution and laws, limiting the jurisdiction in ejectment suits of Justices of the Peace Courts to cases where the lease was for less than $100 and of District Courts to leases-which stipulated a rental exceeding $100.

Section 2156 did not purport on its face to fix the jurisdiction of either of the Appellate Courts, for it could not do so. The jurisdiction of those Courts was fixed by the Constitution. The Supreme Court does not mean that a lessee, bolding under a lease for ten years, at a "yearly rent" of $1500, could appeal only to the Court of Appeal from a judgment of ejectment, after he had occupied the leased property only oné'year^for the matter in dispute was the value of the l'eáse for the remaining nine years.

The case of Dreyfous vs Proces Oil Can, 140 La. 50, was an ejectment suit. The defendant occupied property on a moathly lease of three years at the rate of $65 a month. After the expiration of the lease the plaintiff filed suit in the City Court. Defendant excepted to the jurisdiction of the Court, rati one materiae. on the ground that the lease in controversy was for three years, and of a value of more than $2000. The Court said:.

"The only question involved is whether the City Court has jurisdiction of the demand of the plaintiff".

The Court decided that both under Sec. 2156 and Article 126 of the Constitution of 1913 the City Court was without jurisdiction. Nothing was said about the jurisdiction of either Appellate Courts.

We are of opinion that the jurisdiction of the Appellate Courts is determined by the amount in dispute.

Section 29 of the Constitution of 1921 p 46, provides that the Court of Appeal shall have jurisdiction of all cases of which the Supreme Court has not jurisdiction.

The Supreme Court hafs^jurisdicti on where the amount in dispute exceeds $2000. cS ^ yÁ' ^ ^

The amount in dispute in this case is the right of possession of property under a lease, the unexpired term whereof represents jl vplue exceeding $2000, at the date of the filing of the suit^ake the amount of the l.ease itself, it is for 24'months at $65 per month, or $3720.00. If we telce as a standard the value of the unexpired or unpaid term of the lease at the time of the filing of this suit it is fourteen months or $2170.00. In other words, the plaintiff seeks to dispossess "the defendant of a possession the value of which has been fixed by both parties at $2170, and the defendant seeks to retain it. We are of the opinion that the Constitution gives this Court no jurisdiction of a controversy of that amount, but vests it in the Supreme. Court.

But we wili^dismiss the appeal taken to this Court, in good faith; the ends of justice would not be subserved by such action. Under the discretionary powers vested in us by Act 56 of 1904 p 135, we will transfer this case to the Supreme Court.

It is therefore ordered that this cause be transferred to the Supreme Court of this State; provided, that before said transfer is made, the appellant, or his attorney of record, shall make oath that his appeal was not made for the puipose of delay; and provided further, that said appellant shall file m said Supreme Court^a transcript of this cause including his affidavit andji^cogy of the opinion and decree herein on or before January 9th, 1922; the costs of the appeal in this Court to be paid by the plaintiff and appeallant.

January 2d, 1922.


text:
    Tony Graffagnino vs P.E.Voorhies,Appellant.
    No. 8461
    Charles F.Claiborne,Judge.
    October 1st 1923.
   Charles F.Claiborne,Judge.

This is a suit for the price of pecans sold and delivered.

The plaintiff resxa.es in- Opelousas' and the defendant in Hew Orleans.The plaintiff alleged that in December 1919 he sold to the defendant pecans in the quantity and for the prioe mentioned in the annexed itemised statement,Viz:

Dec 1st-21 bags 1549 lbs. at 18 ¢ $278.82
" " -11 " 706 " " 20¢ 153.20
" 2nd- 2 " 162 " " 20¢ 32.40
" " 12 " 1030 " " 18 ¢ 185.40
" tt 1 " 129 " "
" 5 " 428 "
557 " " 20 ¢ 111.40
Total $761.22
Credits
December 24th 1919 Cash $100.00
300.00 400.00
Balance Due $361.22

For which plaintiff demands judgment.

Plaintiff swears to the oorreotneBS of his aooount

The defendant exoepted that the petition was vague, general,and indefinite and.dlsolosed no legal right or oause of aotlonBThe exceptions were overruled.

The defendant then answered with a general denial. He further awerred that although he resided in Hew Orleans he was * a Citizen and voter of the State of Mississipi " and his home was at Bay St.Louis.

He denied that he was indebted to plaintiff as allegad in plaintiff's petitionjhe denied-all the allegations oonoeming the sale of the pecans to Mm, as set forth in the itemised statementjhe denied the payments oh account and thebalanoe due;and. denied amioable demand.

The defendant did not swear to his answer;Die left it to hiB attorney,who under the pleading act,verified it from "information and belief" .

Upon the trial of the case the question of oommoranoy was not raised.The answer was completely Ignored.The defense was that the defendant had purchased only a few sacks of peoans while the plaintiff sent him 40 odd in a few days;.that the price agreed upon was 13 oents per pound and not 20 oents; and that the peoans purchased by him were exhibited to him and were sound while the peoans delivered were bad;and that he paid $300 on account on the condition that plaintiff would deduot 800 pounds for the bad peoans.

Evidence in support of those defenses was admitted over plaintiff's objection.

I There is nothing in the contention that plaintiff shipped more peoaas than defendant Mad purohaaed.Defendant received and kept them and must pay for them, 0.0.1816 (1810) Actions without words,either written or spoken, are presumptive evidence of a contract,when they are done under oirsumetanoes that naturally imply a consent to suoh 'contract* To receive goods from a merchant without anv express promise and to use them,implies a contract to pay the value."

M II The price claimed hy plaintiff seems to be established Plaintiff testifies that the shipment of peoans was accompanied by an invoioe.This seems true.Por in a letter dated Deoember 24tb defendant writes to plaintiff:

"Out your prices- Small 14¢
Medium 18¢
Large 22¢
Mixed 18¢

When plaintiff's attorney made ah amioable written demand prior to filing milt,defendant did not answer and in hie anewér,he saya net a word about an overcharge.

But as earning that defendant Is right, bite difference between the two prices Is but two senta a pound.Plaintiff efiárgeí defendant with 1436 paundsat twenty Centa,an eioess ef #29.70 •ver eight«tn cents.Defendant J$as never offered to pay the priee at 18oeniBtnor at any other price.

III The pesans were pnrohaaed and 'shipped.'and delivered and received in Deoember.it does not appear that any fault was found with the peoens until February 6th 1920' when plaintiff met defendant at the railroad depot and asked Sim' for Ike money. Defendant went'inside the-depot and wrote a cheok for #800 to the orfivr of plaintiff,and upon the fade of the o&eok .wrote these--words: n .Subject to bad peoahs, to be .retumed.Plalntlff swears he told defendant»/to ship Sim baste whatever bad peoans áe Mad.The defendant testified that Me told the plaintiff that he would not 'p&y.hi® • "unless he dedusted 800. pounds at. is eents a -pound." That would make' #144 Y''deducted from #*61.26 would leave a .balante 'ef #217.86 wfcdoh the defendant, admits In Mis- testimony'&# ewes the plaintiff .Tet hé never returned any pecans^ nor made any effer ’ ■to/.pay, thoir.price jnor any admission,in his answer, that Be owed any part or it.On the contrary,his attorney,from information /received from him,'we’must presumo^, stated^ nadar oath’^that Mé owed . V «othingiftte'testlmQny ef á defendant under suofi otraumatanoe»,. ■■ "•jew., j¡úli *a»**ña -liteelf «tó-,*#* dwi.;;;

The Judgpaent ef:. the.!Dlatrlot^pctU‘t was la f aver-of . ' /plaintiff. and we-'.*eT*m'''e*l,lÍi*átm>t.í>d nod, ..we believe .lt ’ iB.. eórreot» We'liare «sw/given 'this ease mtt»8 attention because it ..va»' thkett" Yp/and: ¿ubdittea; on brief»' in. t$e, absence of defendant * s counsel . ■w^o/waa '«sg§d^t_'lia/Motley Ceu»t.put'.$e Pas'h'ot.;ffá.vó.y«d us'with a brief.

'.-swoh-.a- -penalty^

Judgment affirmed. October 1st 1923.