author: Binkelsplel; J,

text:
    NO. 8731
    COURT OF APPEAL PARISH OF ORLEANS.
    A. R. JOHNSON versus LONGSHOREMEN'S PROTECTIVE UNION BENEVOLENT ASSOCIATION, et al.

   Binkelsplel; J,

original The allegations of plaintiff's/petition, filed May 1st, 1923, avers substantially that plaintiff was a candidate for the offioe of President of the Longshoremen’s Protective Union Benevolent Association, and that an eleotion held on the day and date mentioned, having received a majority of the votes cast, was entitled to the office of President, to which he had been elected; further avers that the commissioners of eleotion, judges and clerks, who were shleoted to oarry on said eleotion did not do their duty in honestly oarrying on said election but were committing a fraud in counting the votes oast and not entering on the tally sheets the true number of votes cast and tkatax that unless the tickets and ballots cast in sai said eleotion and the list of the persons who voted is ase judicially sequestered and held by the Sheriff until the final determination of this case, same will be destroyed and the evidence showing that he was legally elected will also be destroyed, and therefore he was entitled to a writ quo warranto, directed to Albert Workman, President, and the Association, to show cause why and by what authority Workman olaims to be President, and that the Civil Sheriff be ordered to judicially sesquestei and take into his possession all the tickets and ballots oast in said eleotion and hold seme until this suit is finally deoided, and prayed further that he be deolared elected President of said Association. The writ prayed for was issued and the Civil Sheriff took possession of the boxes containing the tickets and the tally sheets.

Subsequently a supplemental and amended petition was filed, averring that the eleotion is so tainted with fraud and malpractice on the part of the defendants as to require, in the interest of justioe, a new election under the supervision and authority of the Court, and in the event it should appear that the boxes herein seized show a majority of the votes in favor of Albert Workman, that a new election be ordered as required by law; and further averring that the President, Workman, and the other officers Oharged with the conducting of the election are the appointees of the President, and as such the result would be of ten a fraudulent connivance in appointing men .who will due his bidding and/will be in their power to falsify the returns of the election, on account of- the illiterate members, and therefore if a majority of the votes found in the box held by the Sheriff favor Albert Workman, a new eleotion should be ordered on the ground of fraud.

To this petition exceptions were filed that alleging inconsistent and contradictory allegations of the original petition and the supplemental petition. The supplemental petition sets forth an entirely different cause of action, henoe praying for a different, sepárete and distinct relief; and subsequently alleging that the original petition discloses no cause or right of action, because there is no relief which the Court can grant on the allegations, and further that the defendants' reconventional demand^agabírága tost relator and the surety on his bond should be allowed for ttes the wrongful issuance of the writ.

To the supplemental and amended petition filed by plaintiff in this case, the defendants filed si exception of no cause or right of action, and without in any way waiving said exception, and only in case same should be overruled, denied the allegations of all the articles in plaintiff's petition except that the present President held over until the vote in this election be decided; denied that the election was unfairly and dishonestly conducted, denied that there was any fraud in counting the votes and not aver entering the true number of votes cast, and/axthax that the allegations of the petition caused damage to defendants in the matter of loss of time, sad injury to its ns reputation and the fees of attorneys employed by respondent in seeking to have the said order set aside,claiming the sum of $250.00}further praying that the suit of plaintiff be dismissed and the writs of quo warranto issued be recalled and vacated, and that the order issued on the 3rd of May 1932, be set aside and the Sheriff be ordered and directed to restore to your jsttiiasKXKy respondents, the ballot box, ballots, tickets of election and the other paraphernalia held by the Court, and that there be judgment in fav- or of defendants, txgxihsxxisiilixilisxssxxix for $250.00 for the improper issuance of said writ and for general relief.

On these issues the parties went to trial, and after a full discussion of both the original and supplemental petitions, and on motion of the defendants, through oounsel, alleging that the writ of judicial sequestration could only be furnished upon plaintiff furnishing bond in tire amount fixed bv the Court, hence the writ of sequestration issued herein should be recalled, annulled and vaoated, and dissolved. The Court decided: "After full hearing' of counsel for plaintiff and defendants, the court is of opinion that the writ of sequestration herein issued is a writ of sequestration eo nominee, was ultra vires, the Court, ax and is a nulr lity. The Court is. further of opinion that, this-matter presents a 'oase where on the face of the papers there is a substantive right for which the law has provided no specific remedy, and that under the equity powers of the Court it is the duty of the Court to provide a remedy. Therefore considering so to do.

It is ordered that the writ of sequestration herein is sued be revoked, cancelled and annulled, together with the or-' der. Therefore, it is further ordered that the Civil Sheriff seize, take into his possession, until the further orders of. this ;Court, 'the ballot boxes and other paraphernalia desoribed in the -petition}' it is further ordered that the plaintiff file in this Court -within twenty four hours from date hereof, a bond with' solvent surety in the sum of |350.00 in favor of the Clerk of tb.ls..Court, conditioned.that the plaintiff will pay such damages. as may te caused to defendants'by the issuance of this order, if it be deoided that this order was wrongfully issued, in default of furnishing said bond as above required, then this order be annulled and the property seized be restored to the defendants. "

Subsequently this record shows, plaintiff furnished the bond,j:equired.

Then on the trial had, of both the original and the supplemental petitions, the Court held, and rendered the following judgment:

"The-Court being of opinion that the allegations of the supplemental and amended petition are totally inconsistent and contradictory of the allegations of the original petition, and in truth and in fact set forth an entirely different cause of action, and ask for entirely separate and distinct relief, and is plainly inadmissable,

it is therefore, ordered, adjudged and decreed, that the order permitting the filing of the supplemental petition be recalled and vacated, and that the supplemental petition be ordered stricken from the record."

On the exception to the original petition:
"The Court is of the opinion that the petition shows that the relator, Johnson, wss a candidate at the election being held on the 1st day of May, 1922; that the petition shows that the election was never finished, that by a writ of sequestration election issued out of this Court, the/aiksgafcisac was stopped. Therefore, Johnson, the relator on the face of his c.vn petition has never been elected President of this Association; the fact thet he apprehends that he is going to be counted out does not give him any right to have this Court deolare him President; if the election is permitted to be finished and he was in truth and in fact elected and was counted out he can then bring proceedings to- have the truth declared by the Court, or in the alternative, if his election is so tainted with fraud as tc be invalid and the Court so Judicially declare, set it. aside, and order a new election, but his present petition sets forth nc cause of action for which this Court is Justified in giving him any of the relief prayed for. The exception is maintained and relator's suit dismissed. The re-oonventional demand of the Longshoremen's Protective Union Be.nevolent Association is dismissed as in case of non suit, with full reservation to the Association to proceed for any such damages as it may have suffered by reason of the original writ of sequestration herein, and the eo nominee writ issued by this Court.
It is further ordered, adjudged and decreed that at the finality of this Judgment the Civil Sheriff for the Parish of Orleans return the ballot boxes with its contents , seized in this proceeding, to said Association.
It is further ordered, adjudged and decreed, that the relator, Johnson, pay all C03ts of this proceeding."

We have thus detailed the proceedings had in this case, and giver,/this fullboth on the original and supplemental petitions, the reasons of the Judge aquo, why the Judge zUnx mice dissolved the writ and dismissed the plaintiff's suit. We ■are satisfied that he was correct in his contentions that the original petition, claiming that Johnson had been elected as President of the organization was contradictory to the supplemental petition because of the fsct that the votes in the ballot boxes in possession and under the control of the Court had not been counted, and therefore no returns had been madej hence, it was impossible to ascertain under these facts whether he wax elected President of the organization or not. His supplemental and amended petition so prayed for ascertainment of this fact and was a direct and distinct denial of what his allegations in the original petition viere, and the reasons given by the Judge $quo in this ease so clearly set this forth that further comment thereon is unnecessary.

On the question of damages, the Judge'in.-his opinion gate to the defendants a night In a separate and -distinct ;suit’ to set forth any ol&im for damages that they might have suffered,and dismissed the reconventional demand made- in this oase; «mu. in tnxe we concur with him.

For the reasons assigned, it is ordered, adjudged.’ and decreed, that the Judgment of the. Court aquo he and the same is hereby affirmed, plaintlff¿-A. R, Johnson, to pay all costs of both Courts,

=Judgment affirmed-


source: Caselaw Access Project

author: Charles F.Claiborne,Judge.

license: Public Domain

text:
    Dr Hazel G.Price vs Constantine Pelias
    No.8734
    Charles F.Claiborne,Judge
    February 5th 1923

   Dr Hazel G.Price vs Constantine Pelias

No.8734

Charles F.Claiborne,Judge.

This is a damage suit resulting from the collision of ■ automobiles.

The facts are that the plaintiff was: driving her oar down Lapeyrouse Street towards the woods.The defendant was driving his car down Dorgenois Street.

Each reached the corner of Lapeyrouse and Dorgenois Streets about the same time;Their oars collided and the plaintiff'! oar v;as damaged.Hence this suit.Judged independently of the general duty of each one to the other to stop and yield the right of way to the other in order to avoid the collision it might be considered a case of mutual negligence denying to each a remedy.But in order to avoid accidents of that kind,which destroy property and endanger life and limbs,a City ordinance is in ezistense which wisely regulates the aetiéen actions of chauffeurs.

We have repeatedly decided that we shall be governed by that ordinance.The plaintiff has testified that ghe_knew the law of the road to be- that when^each other'em intersecting streets, neither of whioh íb a right of way street,the car from the right has the right of way.But her youthful^has not offered in evidence the traffic ordinance which is material, and we cannot consider it unless it is in evidence.He says it was an oversight on his part and we believe him. approaching #

Under the circumstanoes we will remand the ease to .afford him an opportunity to offer the traffic ordinance in evidence. C.P.906-1 H.D. P.94 No.1-1 La Dig.S720 vs Appeal - 21 A 324 22 A 246-42 A 816-52 A 1719-104 La 114-123 La 888(894) -130 La 765-138 La 829 (834)-185 ( 196) 4 Ot.App.348-5 Ot.App.62 -6 Ct. App.333-9 Ct.Ap.110-317-321-10 Ot.App.33-12 Ot.App.202

It is therefore ordered, that the Judgment appealed from be reversed and set, aside,and that this case be remanded for the purpose of allowing the plaintiff to introduce in evidence the traffic ordinance of the City of New Orleans in force at the date of this accident,and for a new trial upon the testimony and evidence ae-the already on file,and such further evidence as the parties may deem proper and the law allows.Plaintiff to pay the costs of this appeal and the question of liability for the costs Y of the City Court to await the final judgment herein.

Judgment reversed and cause remanded for furllier evidence and new trial.

February 5th 1923


author: Bf: WILLIAM A. BELL, JUDGE.

text:
    MRS. MARY VITRANO,WIFE OF JOSEPH RAVINIER, versus ISAAC LEVY.
    #8735,
    COURT OF APPEAL - PARISH OF ORLEANS, NEW ORLEANS,LA.
    WILLIAM A. BELL, JUDGE.
    October 16th, 1922.

   Bf: WILLIAM A. BELL, JUDGE.

Blaintiff files suit against defendant, olaim-ing Pour Hundred and Hive Dollars and Horty-Five Cents ($406.45) the value of certain.described furniture and. house-hold effects, and in addition to said claim, the sum of Hive Thousand Dollars ($5,000.00) damages for physioal pain and suffering and mental anguish.

Petitioner alleges that the furniture, etc., was her own separate property, and that the defendant conspired with plaintiff's husband, to defraud plaintiff out of'said furniture by purchasing same from her husband and by removing the same from the house she and her husband were living in, though she was temporarily at the home of her mother, sick.in bed.

It is alleged that petitioner was the mother of a very young baby, and was weak and enfeebled, and was obliged to reside in the rear of her brother's plumbing shop where she did not have the necessary conveniences for herself and her baby, and that she was compelled to sleep on a cot and suffer great physioal and mental pain and anguish, all of which was due to the illegal and tortious acts of said defendant in talcing possession, of her furniture against her will and against her oonsent, through the illegal and pretended sale by her husband.

A trial was had before a Jury, and from verdict,and judgment in plaintiff's favor for $1,000.00, the defendant appealed to the Supreme Court of Bouisiana, but the case was remanded by the Supreme Court to this Appellate Court by judgment rendered Hay 22, 1922, which judgment reads in part as follows:

"It is quite clear, we think, that no amount which plaintiff could recover, would even approximate the law limit of our jurisdiction. **********************************
In the case of Edward Wagner v. H.O. Railway & Light Co., 91 South, 817, we reaffirmed the rule laid down in Wolf v. Stewart, 48 La. Ann. 1451, and Tieman v. Johnston, 114 La. 112:
'In an aotion for damages when it i's apparent that the greatest possible amount that may be recovered is muoh less than $2,000.00, the Supreme Court is without jurisdiction rations materias, even though damages in a stun .exceeding that amount are asked in the petition.' *********
It is ordered that this appeal he transferred to the Court of Appeal for the Parish of Orleans, provided that the same he lodged with that Court within fifteen days after this decree becomes final; the plaintiff to pay the costs of this Court and all other costs to- abide the final result."

The charges upon which this suit is predicated are, first, that the property sold by plaintiff’s husband to the defendant, was not his property, but hers, and therefore, under the articles of the Revised Civil Code of Louisiana, the said sale was null and void; but the petition further charges a conspiracy between rhe defendant and plaintiff's husband, resulting in the transfer of what she claimed to be all her paraphernal property, consisting of furniture and household effects, etc., to her prejudice, and for a price much less than their real value.

The defense to this suit is a denial that the property conveyed is the separate property of the wife, and the declaration that defendant had no reason to know that the husband had sold the furniture without the full knowledge and consent of the wife. Respondent avers that he purchased the property for $135.00, and the evidence shows, that $10.00 was given on account, in cash, and that- the balance of the consideration for the sale was paid by oheok, in the sum of $125.00. Defendant futthér denies that there was any conspiracy between him and plaintiff's husband, and that when plaintiff called to see him in protest against his purchase of the furniture, that the same was already on his premises, and that he informed plaintiff that he had already paid for the furniture. He farther avers that hie check was issued in payment for the furniture several hours before plaintiff had called upon him.

We find, from the evidence in this oase, that most of the property in question was purchased from furniture "houses or stores in this Oity, and that at the time of its removal from plaintiff's home, the same had only been partially paid for; that the purchases were made by plaintiff's mother, and that the furniture in question was given by the said mother to plaintiff as a present. Other items as listed in the petition, are shown to have been given to the plaintiff as wedding presents.

It Is further proven that the plaintiff and her husband were married on the 26th day of Jamary, 1916, and were living together in their borne on Dupre Street until a few days before the allegedtsale to defendant, which occurred on February 4, 1917, and that since that date up to the time of the suit .herein brought, plaintiff was unadvised of the whereabouts of her husband.

It further appears that the defendant, who has been in the second-hand furniture business for many years in this City, has known the plaintiff since her.childhood, and knew that they lived around the comer from his place of business. It appears that the husband, on the Saturday previous to the sale and delivery of the property in question, negotiated for said sale with the defendant, telling defendant that he and his wife were going to live in hew York City-

There can be no doubt that the delivery of the furniture took place•on the following Monday between seven and eight b1clock in the morning, as many witnesses testify consistently on this point. It is also true that on Monday morning after the defendant had removed the furniture from plaintiff's home, that she immediately called on him, before banking hours, and notified him that the furniture which he had removed, and which was still on his wagon, as yet' unloaded, 'Was her' property, and not that of her husband, and that the plaintin protested against his attempt to purchase the same or remove it from her oustody.

It further appears that defendant was notified by her that hear husband had attempted to sell the property without her consent, and that she demanded a return of all of the.furniture and household effects, then on the wagon in front of, but not yet removed to defendantis store.

She evidence is also conclusive that the check for $125.00, given by defendant to plaintiff's husband, was dated February 6, 1917, one whole day after the property had been removed from plaintiff's residence, and no satisfactory explanation appears in the record which would refute the natural conclusion that plaintiff's husband was not paid for this furniture until the day upon which the checfc is dated, in other words, that defendant had full opportunity to protect himself as to the value of the furniture, and to restore the furniture itself to plaintiff after she had oome to his place of business and given him due notice that the same was not the property of the community or of her husband.

Without further review of the evidence, it must be presumed by this Court that the facts just recited were those found by the jury and approved by the Judge of the Trial Court.

The law of this case appears to us to present two important questions: First, whether the presumption of law arising from Art. 2085 R.C.C. is overcome by the facts of this case, and secondly, whether the conspiracy herein charged involves a tortious act for which damages, under Art. 2315 of thé Revised Civil Code, could be recovered.

Art. 2385 provides:
"Paraphernal property which is not administered by the wife separately and alone, is considered to be under the management of the husband."

The above provision of the law carries a presumption which of course may be overcome by evidence to the contrary. Defendant relies particularly on the decision of this Court rendered in the case of Mrs. 3va Crone v. Thomas R. Ruge, #4517 Orl.Ct.App. In that case, however, this Court, on rehearing, reversed its former decree, and set aside the judgment of the lower Court, on the ground that it was shown, on rehearing, that no evidence in the record of that case was produced to rebut the presumption of law under Art. 2385 R.C.C. that the husband has the administration of the paraphernal property of his wife, and for this lack of evidence,the burden of which was upon the plaintiff, the Court refused to find the defendant liable for the value of a diamond ring belonging to the wife and sold to the defendant by the husband.

In the case before us, however, there is positive evidsnoe to the'effect that-the defendant, before concluding the transaction with: plaintiffs husband, and. before finally paying for, or receiving in his store the furniture in question, he was duly notified by the plaintiff that her husband had no title to the property, and no right to administer the same, and that notwithstanding this fact, he proceeded to consummate the transaction, to plaintiff's prejudice. Por this reason, we do lot consider the authority above quoted as applicable to the case now under consideration.

Our consideration of the whole evidence in this case would not, in our opinion, justify a conclusion that the defendant conspired with the husband to in any manner defraud or injure the plaintiff. Notwithstanding this fact, if the transaction complained of can be shown to have resulted in damages suffered by the plaintiff, she is. under the law, entitled to recover thesame, when said damages are properly established by the evidence.

We are convinced that the action of the defendant' in this case was dub to his fault in falling to protect the plaintiff when given by her due notice of the faots of this case. Having failed to restore her property, when the opportunity offered itself, and having persisted, as the evidence shows, in consummating the transaction with the husband, we are of the opinion that the defendant, as found by the judgment of the lower Court, committed a tortious act, for which he must respond in damages.

.The verdict told judgment rendered in the Trial Court was for One Thousand Dollars ($1,00Q.00). It is not shown how the jury arrived at the amount thus awarded. Plaintiff has not clearly established to our satisfaction that she suffered damages to the extent awarded by the jury. When ashed, "You allege in your petition that you suffered hardship by the sale of this furniture. State what that hardship consisted of," plaintiff answered: ."I do not remember; I had to sleep on a cot, as they had no room for me-, and I had to take care of my young baby."

We ere of the opinion that the damages allowed are excessive, and should he reduced to the sum of Rive Hundred Dollars, ($500.00).

It is therefore ordered, adjudged and decreed, that the judgment herein appealed from he, and the same hereby is amended, to the extent of reducing said judgment from the sum of One Thousand Dollars ($1,000.00) to the sum of Five hundred Dollars ($500.00), and that there he judgment in favor of plaintiff, Mrs. Mary Yitrano, wife of Joseph Ravinier, and against the defendant, Isaac Levy, in the full sum of Rive Hundred Dollars ($500.00) with legal interest thereon from date of judgment herein until paid, defendant to pay all costs save those incurred on the appeal to the supreme Court of Douisiana, which latter costs have already been taxed hy the said Court on the plaintiff.

JPPSMEITT ¿MEEDED. ¿HD AS ¿MBHDED AFFIRMED.

October 16, 1922.


author: BY: WIllIAAI A. B3BI, JUBSE:

text:
    MISS LOTTIE GRACE DAUDELIN, versus FRANK D. COSTLEY
    No. 8740
    COURT OF APPEAL, PARISH OF ORLEANS
    "ÍIRRIAM A. BEIR, JUDGE;
    January 2, 1923.

   BY: WIllIAAI A. B3BI, JUBSE:

Shis Is a suit By direct action for damages to plaintiff's automobile, and By reeonventional action, for damages to defendant's automobile, Both, of which were damaged By collision in AuduBon Part in the City of Hew Orleans.

EaoB of the litigants oharges the other with gross negligence, and each claims the other to have Been additionally liable under the doctrine of last clear chance..

The material allegations of the pleadings herein filed need not Be noted to any extent, the suit'Being predicated largely upon issues of fact, to Be determined from the testimony adduced at the trial in the lower court.

Defendant, and plaintiff in reoonvention, has answered the main suit Bjr pleading an exception of no cause of action, and answering the merits -By pleading particularly the violation on the part of the plaintiff of the general laws of the road, and the City ordinances of the City of Hew Orleans. The ordinances pleaded were made part of defendant’s answer, and offered in evidence at the trial of the cause,

•There was judgment in favor of plaintiff in the Pirst City Court of Hew Orleans, for the sum of $68.64, the defendant's claim in reconvention, for the sum of $189.40 Being dismissed. Prom this Judgment defendant, and plaintiff in recon-vention, has appealed. The only two eye-witnesses to the .accident were plaintiff and the son of defendant. The respective amounts claimed By the litigants constitute actual damages to each ¡OÍ thé automobiles, and the Bills for repairs of eaoh offered An evicttnee are not disputed.

We find that the accident occurred on January IS, 1988, at about four o'clock P.M., in AuduBon Park, atriwr near what is known-as the exit leading from the Park to Magazine St. Plaintiff was driving her car through the upper side of AuduBon Park from- St, Charles Ave. and around the curve in the Paris: towards the Magazine St. exit. This roadway upon which i^flaintiff was travelling is a public thoroughfare running through the Pari;, and is used, or intended, only for vehicle traffic. J?or more than a city block’s length, this roadway runs from the upper side of Audubon Park to a point .known as the 'Pea House in said Park, and to this extent the road is parallel to Magazine St. <le find that while plaintiff was driving her i'ord car down the Park roadway parallel to Magazine St., and within a short distance of the exit to Magazine St., she noticed the. defendant's car coming, or about to come, out of the inner roadway loop which runs in front of the Audubon Pea House, end takes a returning direction to the Magazine St. exit.

Shere were two plans, or sketches, and two photographs, offered in evidence. One of the sketches was offered by plaintiff and the other, together with the- two photographs, was offered by .defendant. There is considerable variance between the sketch of plaintiff and that of defendant, and we find, upon examination of the testimony, that the sketch offered by defendant is a more correct plan of the locus in q.uo. The photographs, marked "Defendant I. and II." respectively, as well as th§ sketches, show that part of the park at the intersection of the exit and that of the driveway, where there is an eleotrio light pole. The pole is midway between the extreme sides of the exit, but does not in any maimer stand in, or obstruct, the driveway in the Park, ffrom the point of the eleotrio light pole to the exit point of the loop, we find the driveway to be a two-way thoroughfare; and that the balance of the driveway, as well as the entire loop, running from the lea Room back again into the driveway, is a one-way thoroughfare, running from the direction of Magazine St. towards St. Charles and back again in loop towards Magazine St.

It is contended by the plaintiff that the stretch of roadway upon which she was driving, from the electric light pole to the exit point of the loop, -is a one-way drive, and that this distanoe is about 30 ft. On the other hand, defendant contends that this same distanoe is 110 ft., and that the driveway here is not a one-way, but a two-way traffic thoroughfare.

Vie find that the defendant's contention is the right one, and we further find that the width of this two-way thoroughfare from the point of.the aoeideht to the Magazine St, side of the thoroughfare, is. some SO odd feet. The width just mentioned gives-to. vehicles.-going towards the Tea House into the loop, or out of the loop'into the thoroughfare in the direction of Magazine St. ample room to pass each other, and that vehicles going towards the Tea Room ar into the loop should, under the general law of .the ro'ad, as well as the traffic ordinances of the City of Hew Orleans,- keep to the right of said road, that is, towards the side nearest Magazine St,t and that those vehicles should coming out'of .the loop, and -for the space of 110 fU/also keep to the right, going in the -direction parallel to Magazine St., and until turning to the left for purposes of exit, from the fark.

The sketches Of both plaintiff and defendant show that the point of the accident was in the grass directly off of the loop, and at the point of intersection-of the main thoroughfare with the exit point of the loop.- The. evidence 'establishes conclusively that the primary cause'of the accident was the plaintiff' s failure to keep.well id the right while, going, as she testifies she intended, to'go, tovterds the Tea.Souse,- She .testifies, however, that before reaching the electric light pole, in gestión, she saw the defendant's oar-well to the left of the exit from the loop, apd that noticing the approach-'of defendant's oar, she turned well .to her left., and checked the speed of her oar until she found that defendant's oar Vías dangerously near her, at which moment, she aeeelerated the speed of her oar, at the same time turning her 'ear Still further to the left. We find, that she was undoubtedly confused, as .she herself testifies, and that her failure- to pursue .her' course well to the right was the sole cause of the accident.

Vie further 'find that the driver of the defendant's car at all times observed the rules of the road and the Sity ordinance a, by keeping to his right, although by so .doing, the inevitable, accident .occurred. We .also find that' the do otrine of last dear chenoe cen only he applied against plaintiff for the reason that she admits having increased her speed, and also having continued to pursue her unlawful direction to the left, when she could and should have turned to the right at the last moment before the cars came into collision.

Had plaintiff at all times kept to the right of the road, and had she particularly done so even after believing that defendant's oar was dangerously near her, the accident would not have occurred, failing e^cthis observance of the rule of the road, as well as the ordinances, she, and not defendant, must be found at fault. The driver of neither car was exceeding the speed limit allowed under the law, and hencg the aocident can only be attributed to the fact that plaintiff failed to keep to the right while in the 110 ft. of two-traffic roadway upon which she was travelling.

The City ordinance which is rightly invoked by defendant provides in Section I. thereof, that the provisions and regulations of the ordinance shall govern the manner of use on the public streets and thoroughfares of the City of Hew Orleans, of automobiles, etc. There was some attempt .in the trial of the case to prove that the driveways in Audubon Park and the traffic thereon, were governed by rules and regulations of the. Audubon Park Commission, but in this respect the testimony offered was, in our opinion, properly rejected. The witness introduced for this purpose by plaintiff, showed clearly that he had no official knowledge of the rules of the Commission.

There being no evidence before the Court of the power of the Audubon Park Commission ro make any rules or ordinances different from those enacted by the City Commission Council, and the ordinances of the Council not differentiating in any way the traffic rules applicable to the public streets as distinguished from driveways in public parks, we find it proper to hold that the thoroughfares or public driveways in the public parks in the City of Hew Orleans, are to be governed by the ordinances relative to traffic throughout the City.

Prom our appreciation of.the facts of this case, and from their application to the. City ordinances which we consider the law of thé oase-, we -are of the opinion: that the' Judgment of- the trial chart Is erroneous, and that there, -fthauli he judgment, for defendant in the sum prayed for in reconvention..

It is therefore ordered, adjudged grid dsóreed, that the judgment herein appealed from in favor of plaintiff Shjtt. .against defendant in the sum of .$.68.64, and rejecting the demand of plaintiff in reconvéntion, should he, and the; same.-is: hereby •reversed, and it is now ordered,- adjudged and decreed that there he judgment in favor of Frank D, Costley and .against .'lottie. grace Daudelln, in the sum of $12?.40. With legal interest thereon from date of judgment until paid, and for all aostg- in hpth courts.

JODSMSHf KBYBBSSB.

January 2, 1923.


author: WHiIIiM. A. HEEL, Judge.

text:
    J. V. ROCA LUMBER & HARDWARE COMPANY INCORPORATED VS. C.H.FRICK & R.B.CHAMBERS, IN SOLIDO
    NO. 8741
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    VGEET4M A. EBEL, JUDGE
    FEBRUARY 5, 1923.

   Opinion by

WHiIIiM. A. HEEL, Judge.

This Bait by plaintiff, a furnisher of materials' used, in repair of a certain building, is brought against the owner of the building and. against the contractor, the latter defendant, as contractor, having purchased from plaintiff certain lumber unpaid for and valued at f£61.60, the amount herein claimed. There was judgment by default agpinst the contract- or, who has not appealed* but plea of prescription filed by the defendant owner was maintained, and plaintiff's suit as against the owner was, accordingly, dismissed. Rrom the Judgment maintaining the exception of prescription plaintiff has appealed. The exception is predicated upon the allegation that the plaintiff failed to serve upon the owner attetailed attested aooount or to record the same in support of its lien until almost a year after the owner had paid the contractor in full and had accepted the work: done under the contract.

There is no dispute as to the facts. The record shows the work to have been done under a verbal contract, for the sum of $£,000.00. There was no bond given or recorded. The work was begun in January, 19£1, completed about two months later, and the last installment payment made in full discharge of the above contraot price, on March £1, 19£1. The owner testifies that he knew nothing of the contractor's failure to pay the plaintiff for the material furnished until about February -9, 19££, the date upon vhieh this suit was filed and upon which the attested aooount was served and reoorded.

It is contended by appellwt that under Act ££9 of 1916, no written acceptance of the work by him as owner nor recordation of the same by him in the Mortgage Office was neo-es nary in order that the forty-fire days provided in Aot 229 ahould begin to ran in his favor against any unpaid material men seeking to assert and enforce any oxaim or privilege against him or his property, and that the attested claim, now sued upon, never having been recorded until almost a year after nls acceptance of the work, as Shown by his fall payment therefor, plaintiff's action has accordingly prescribed^

On the other hand, Counsel *r fffiranffent says that Act 262 of 1916, not aot 229 of 1916. must govern and preserve his right of action herein saed upon. It is argaed that Aot 229, not providing how.the acceptance mast be evidenced, it follows that recordation of acceptance in writing, as required by Aot 262, mast apply; far them or#, that Aot 229 applies only to oases vtoere the agreement to furnish supplies ia made dir eotly with the owner, and not with the contractor, as in this oass; and, lastly, that Aot 262 of 1916, being the last Act on the subject, superoedes Aot 229 of the sama year insofar as said Acta may be in oonfliot.

Which of the two aforesaid Acts is to be applied to the instant oase is the initial question for determination, and whether plaintiff has oomplied with the law so as to acquire the right of action pleaded by him, is the remaining question.

We find no merit in plaintiff's first contention, whioh, as we understand it, would impel the Oourt to adopt or apply that one, of two statutes similar in their legislative purposes, wmon would prove most favorable to one of the litir gante, irrespective of the applioation of either statute to the facts under consideration. Ssamination of the case of Com roy Oil Oo., 143 la., 881, does not lead ua to the oonolu-•ion that the Oourt intended to hold that Aot £29 in its entirety was applicable solely to oases in.whioh the eostraet was nade with the owner rather than with the contractor, dealing in turn with sab-contractors for-materiel and labor famished in bailding, etc., belonging to the owner. The prorisions of Seotion 3 of Aot 229 giving to any unpaid sab-contractor a privilege on any funds in the hands of the owner which may still be due the contractor, precludes any belief that the Supreme Court could have intended to hold, in the' cited'case, that Act 229 was enacted only for the protection of such material men or others «bo had contracted directly with the owner, or, on the other hand, for the protection of only such owners as nao. procure A labor, and material directly from the contractor. The last contortion of plaintiff is plainly without force as shown by the last repealing clause of Aot 229, which provides as follows:

«4 * * that this Aot shall not he construed to repeal or effect the operations of Act 167 of 1912, as amended hy an Aot adopted at this session of the General Assembly,”

meaning, of course, Aot 262.

In the present case we have already noted that no written contract existed between defendants herein with themselves, nor between uae plaintiff herein with either of the defee5.s«íí»; that n»- bonds were given or recorded, and that thongs the amount of the verbal contract was over $600.00, no written acceptance of the war Jc was given or recorded by'the owner. These facts are, in many respects, shown to he similar to the facts- existing in the ease of Musey v. Prater at al., 147 La., P. 71, where the Court on re-hearing said:

”We era of the dplnion that Act 229 refers to all buildings contracts, regardless of amount, whether verbal or in writing, where ho bond, or A defective bond, is giveá by. the contractor, and the contract and .bond are not '-recorded-in the manner provided far in Act 262.”

Sha reo or 4 proof la the ornea before as to the effest that the eatlra contract price of ‡2.000,00 was paid by the owner to the contractor leads ns to the eonelnslon that the work was formally accepted by the. owner an*, that the fallare, on the part of appellant to record his lien Within forty-fire days after, sneh acceptance mnst be fatal to his recovery.

We are of the opinion that the proviéione of Ant 289 and not those of Act 262 is the law applicable to the oase now before us, and that inasmuch as Act 229 does not proyids for the reeordatión of a written acceptance by the owner of the work contrasted fap/ as. evidence of his acceptance, proof in this case of full payment on Bareh 21, 1921, •mseiiehea sufficient evidence of aooeptanoe within the forty-five days. We think the exception of prescription has been properly maintained.

II IS, EHEHEPOBB* OKDEHBh, AKTDBGBB ABB EKJRBBB that the judgment appealed from be ana we. same hereby . is affirmed,• appellant to pay all costs as against appslles in both courts.

JBBBTJART 5 > 1923.

JDB9HBTO AJJlHMSB.


author: .Dinkelspiel; J. WILLIAMS A. BELL, JUDGE

text:
    NO. 8742
    COURT OF APPEAL PARISH OF ORLEANS.
    P. J. Leaman versus Silas Putnam.

   .Dinkelspiel; J.

This suit ie based.on tbs'- following contract:

"I hereby offer and agree to purchase through you, p. J. teaman, for the.price of. $7000.00 (then follows- a ***x oxi description of the xgt property) $1300.00 cash, taxes for h;e year 1933 .to be prorated;-.if this offer ie accepted'I Will deposit with £ou immediately in cash ten p»r cent of the amount.thereof,on account of the purchase price, not interest bearing; this deposit not to be considered as earnest money, the parties hereto'agreeing to the right to demand'specific performs.,: e, should they fail to. comply with the terms or con-dititlone of this offer if same is accepted, I obligate myself to pay on demand your commission on this'sale and any attorney's fees and costs of Court' that you may incur-'in enforcing collection of your claim; this offer remain's binding until purchaser's signature.

(Signed) S. Putnam.

And beneath this dooument which was' dated- Hew Orleans, ha., April- 11th, 1933, we' find the following:

P. J. Leaman, Agent. i accept the .aboye offer, aleo terms add conditions and agree to .pay you for services rendered, $310.00 same being 'earned and payable when agreement to purohase . is 'signed and the offer is accepted.

The defendant admits i* his signature to the contract in question, .denies any indebtedness to plaintiff whatsoever, alleges.-the offer -in .question was dtsaiiamdxKnix -declined and was further denies all' the allegations of plaintiff's petition, except thst .he admits, he refused to make any further offer for said purohase after the offer which' he had made was declined and.-particularly denies that there was any contractual obligation on his part to-accept title to said;property after said-offer had been declined, admits the offer which he had signed before same was declined, and called off "by him, it provided for the payment of commissions as set out in said article, which however was not binding on respondent after said offer was declined, and withdrawn; admits that the offer which he made for the sum as set forth in said article, and the commission would have been due as set forth in said article, had said offer been aooepted before same was withdrawn by him, but having been withdrawn, the contract sued upon was set aside and was null, void and of no' effeot and not binding upon respondent. Wherefore he prays that plaintiff's suit be dismissed;

On these issues the parties- went to trial.

'Plaintiff testifies that' he secured the signatures on the document and identifies both,and the signatures were obtained on the day, April 11th, 19£a, for the sum of 17000.00, and that his commission was three per dent; he further testl-•fies that defendant did not accept the title.

Q. What time did ,you go to see Mr. Putnam? A. I phoned his wife that day telling her that the offer had been aooepted.
Q. You are positive, you told her that? A. Yes sir.
Q. You did not tell her the offer would be accepted provided an additional amount would be paid? A, Iia> sir.
Q. You didn't tell her you had both good and. bad news for her?
■A. Wo sir.
0.. 0o ahead? A. That night I went to Mr. Putnam to get the ten per oent deposit; when I got up there he raised an objection that he did not want the property; his contention was the roomB were too email, the ceilings were too low.
Q, Did you not tell this, defendant -that his offer would be accepted provided he paid an additional amount?' A, .Wo air.
Q. And didn't you -tell him. that the additional amount, would aiw. so cover your commiesion? A, Wo air.
Q. (By the Court). And did he not tell you "not only X will not pay an additional amount, but I will withdraw my offer? A. There was no discussion about any sum at all, except that he refused- to take the property on account of the property haying a low ceiling.
Q. Mr. Leama.n, Answer my question, yes of no. Did he not tell you. after you made him a counter proposition.that riot only he would aot. give the additional- amount, but that the contract was off? A. I don't remember anything like that.
Q. Did you have the .contract with you when you went there and show it to him? A. Yes sir,
Q. You mean signed? A. Yes sir.
Q. Did you not tell him that you would go baok and see if the vendor would oome down t.o the seven thousand dollars, and he told you it was off it was no use? A. fío sir, I don't remetabér any conversation of that kind, along those lines.,
Q. Did you-not say to him that under the círoumstandee-you would lose your commission if necessary, in order to make the sale®
A. No sir.
Q. And you did all you oould to get him to consent to give tha additional amount or you would lose your commission? A. No sir<
Q. You didn't speak of that at .all to him? A. No sir.
Q. You didn't tell, his wife that you had good and bad news' over the phone? A. No sir.
Q. And you told her the good news was that, this party would sell, but he Wanted something additional, and that was the bad part? Ax
A. No sir.
Q. What did you tell her? A. That the offer had been accepted arid I had no- recourse whatever.
Q, Were you the agent- for the vendor? A. 'Yes sir.
Q. I understand, Mr. Deaman, that there was not. a word said about -any additional price, you simply went to Mr. Putnam and told him bis offer was accepted? A-. Yea sir; the purpose of my going, there' was to get the ten per cent deposit.
Q. And thats all you told his wife? A, Yes sir,- over the telephone.

The witness Reamen, being recalled to the stand, testified that the ¿light ltt question he went to his office about 9JJ.5 and found his stenographer there together with another employee, and tha.t he addressed the letters in this record and mailed the letter the same night, h'e addressed the letter to 5130- Coliseum Street, but Mr. Putnam's address was Constance Street. The letter a confirmation that the offer had been accepted.

Q., X notice in your letter of April 12th, you don't mention writing him a, letter of April 11; did you notice that? A. X don-2t see why I should.
Q. You don't refer to it si all? A. Let me take a look at my letter of.April 12 and I will tell you. (Reads the letter) Ho, 'ihere is no mention there.
Q. You hed written that letter of April 11th, though, when you wrote this? A. My stenographer wrote both letters, I dictated them.

Fred Hesse, the next witness being shown the documents in question, purporting to be a contract between him and the defendant, relative 'to the property in question, and asked whether or not it was hie signature on the contract, answers .yes.

Q. Are you the owner o.f the property 3638 Roberts Street? A-. Yes'.
Q. H&ve you ever rejected such offer? A. Mr. Le&man brought the Offer and X aighe.d it and acoepted it for $7000.00.
Q. Had you -ever rejected the offer? A. to sir.
When did you accept the offer? A'. On the Aa,y it -is dated, at that timé,
Q. What time of de'y was it? A'. About eleven o'clock in, the. day*
Q. Whan was this oantraot first presented to you? A.. Mr. Leaman rang me up ®.nd asked me if I would accept seven thousand dollars, that he could get this party to give it; he said "I will come up with a oontraot, will you sign it" and I said “yes"; that vrss over the telephone.
Q. Wh*>t time was that? A. Ah^ut nine o'clock in the morning.
Q. What time did you see him after that? A. About eleven o'clock when he cume with the contract.

By the Court. Q. Is it not a fact that you signed this contract after Mr. Lenman came back to see you that night? A. No sir, I signed it when he came about eleven o'clook and he showed me the signature at this time, that it was accepted if I would accept seven thousand dollars, £ said alright, and I signed it.

The letters annexed speak for themselves , and as they are not material, except as to the date, they need not be described in this opinion.

The first- witness introduced in behalf of the defendant is his wife, and quoting only as much of her testimony as we consider necessary for a deoision in this case, she testifies that it is her custom to answer telephone messages reoeived for her husband, she says she answered the telephone oall of Mr. Leaman on April 11th, and she spoke to him.

Q. What did he say to you? A. He asked me if-Mr. Putmam was home and I told him yes; he said tell him I will be up there in a little while, I have got good and bad news for him.
Q, You are positive of that? A. Yes sir.

The defendant himself testifies that he signed-the contract in question, Mr. Leaman came to see him on April 11th* 'h'e oame in the morning to look at the house, he came "again about "h'even.'tSirty or a quarter of eight.

ij'i What did’he say to you? A, He said, I have .good and bad news for. you, would you be willing to pay One Hundred Dollars more. " said, no,' the deal is off, he ten said I will have to lose a pert of my -commission and I will sell your property and get it back. •
Q. What did you tell him? A. Ho sir, the deal is off.
Q. Did he tell you anything at that time that this contract was signed s.nd show it to you? A. Ho sir.
Q. When did you hear it was signed? A. Three days afterwards* when I got a notice from him.
Q. Did he say anything to you about getting ten per cent deposit thst evening? A. Hr six.
Q. Who was there when you told him what you say here? A. My eon,- he was sitting between us on the-front porch,.he said when he was leaving think it 'over tonight and Sx let me know in the morning what you will do, I said possibly X will get up to see you in the morning; when X got down to my work in the morning I found I was not able to leave and phoned him, he says to me "are you going through with it" and I says "I told . you last night it was off, and he said "you will have to pay-pe my oommission", I said we will see s,bout that.

Replying to the question, whether or not this witness reoeived a letter dated April 11th or not, and after the letter was read he says no sir I never reoeived it, I gave all the letters that I reoeived to my counsel, Mr. Divaudaisl- He goes on to testify that two.or three days afterwards he reoeived a letter dated on the 13th or 13th of April and does not know whether he reoeived a letter dated the 11th of April,

Q. Did you Advise Mr. Deaman, when he wrote you on April 13th> the letter jrou admit, having reoeived? A. i advised him on the morning . of April 12th, I told him the night before I was not going to'oarr ry it out*
Q. Then'when you testified a while hack that you did not know'^hat this document'was signed until three days afterwards you.were^s-taken in your former testimony? A. I heve to withdrew that.
Q. -The contrect being rejected by Hesse you revoked your offer?
A. When Mr. Leaman s,sked me if I would be willing to pay one hundred dollars more I told him no the contract was off, then he came beok at me and says, Oh ! X will have to lose part of my commission end X will sell your house end catch it back; naturally I- understood the contract was rejected.
Q. Is it not a, -.-'set that you told your attorney Mr. Livaudáis that Mr. Hesse had rejected the contract? A. I did not tell him that, no.

the next witness, G. J. Putnam, a son of defendant in , thi's ca.se, recalls the conversation bety/sen his lather and plaintiff in reference to the purohase of the property in question; he was present and the conversation was on the front porch, he heard what both were talking about and this question woe propounded in so far as plaintiff was concerned:

Q. What did he say? A, Shsckx He said,, Mr, Putnam, I have good and b?d news for you, should you be willing to pay one hundred dollars, more, my father told him he would.not and called the desl off, he remained there for a little whilé and he ss.id, I will have to lose part of my commission and I will sell yopr house and oatch it baok.
Q.» What, did your father se.y to him? A, He said, nothing-doing; you saciixK can call the deal off.
Q, Did he say anything about the ocntractNbeing signed by Mr. Hesse? A. Hot e- word.
Q. You are positive of that? A. Positive of that, he never mentioned contract at all.

The question for determination msinly involved in this litigation' is whether or not a contract -of the oharcoter in question can or not be revoked.

The Civil Code Art. 1800, reads:

The contract, consisting of a proposition and the consent to it, the agreement is Incomplete until the acceptance of the person to whom it is proposed, If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.

Art. 1801. The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he no not signify the ohsnge of his intention.

Art. 1813. Express consent must be given in a language understood by the party who accepts, and the words by which .it is conveyed must be in themselves unequivocal; if they may mean different things, they give rise to error, which, as is hereinafter provided, destroys the effect of a contract.

A proposition does not beoome an agreement until the party to whom it ws,s made accepts it.

Cavelier vs. Germain 6 La, 215.

When one party submits a proposal for a contract to anoth-. er, and the latter's acceptance of the proposal inoludeB a. material modification of the proposal, no contreot will result until the modification has been acquiesced in by the perty making the proposal'»

Connell vs. Hill, 30 Ann. 351.

Where, after a person had made a written offer, he received no actual notioe of sn acceptance until after ha had made a contract involving the subject matter with another -the acceptance came too late tc bind him, he having already signified his change of intention within Rev. Civ. Code, art. 1801, providing that a party proposing shall be presumed to continue in the intention which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposal is made, he does not signify the/dhlaitfiw^his intention.

Union Sawmill Co. vs. Mitchell, 132 La. 900.

The evidence in this o&se satisfies us that plaintiff phoned to the residence of the defendant inquiring for him, and that defendant's wife who usually answers the phone for her husband, after plaintiff had given his name, «scidxiat was' told by plaintiff that he wanted to speak to her husband to tell him that he hs.d good and bad news for him. That shortly thereafter plaintiff went and oalled on defendant in person and in the presence of defendant's son said to him, "I heve got good and bad news for jtKskjcxkliMSxk* you, there is one hundred dollars difference between the price that X am offered and that which you want, .but I can nataag*.arrange this by getting a purchaser for this place subsequently and you will get the benefit thereof'', or words to that effect, to whioh proposition defendant replied, "nothing doing, the deal is offj' -and notwithstanding plaintiff’s-'efforts, stating what he could and could not do, defendant insisted that the deal was off. Added to this is the testimony of defendant's son fahich oonfirms this conversation and denies as stated.in the testimony given by the plaintiff in this case denying any such conversation and testifying that he, plaintiff went to his office that night about nine o'clock and there found his Stenographer and made an immediate demand on the defendant stating that' his proposition had-been aooepted. This testimony, with the sksc affirmative statement of defendant, his wife and son dsosig is true and 'the testimony given by the defendant -and other parties heretofore mentioned is correct that defendant refused to consent to the proposition but absolutely and unqualifiedly oalled the sale off. The letters written by plaintiff were for his own benefit and in our opinion an afterthought in order to hold defendant for his commission.

Plaintiff in our opinion his utterly failed to make his case certain end that is required by our law. Xt requires no-citation o.f authorities to prove this f&ot.

For the reasons assigned, it, is 'ordered, adjudged and decreed, that the judgment of the Court ;aquo in this ease. la. favor of plaintiff ie annulled, avoided and reversed and that there now be judgment in favor of. defendant, diemlasing- hi* plaintiff^ suit at his costs in both Courts.,

-Judgment reversed and judgment rendered in favor of defendant?-

P. J. LEAMAN VS SILAS PUTNAM

NO. 8742

COURT OF APPEAL

PARISH OF ORLEANS

APPEAR PROM THE PIRST CITY COURT POR HEW ORIEAHS, SEC. "0," HOH. HY. JUDGE. THE CITY OP HEHSHAW.

DISSENTING OPINION OF

WILLIAMS A. BELL, JUDGE

I respectfully dissent to the majority opinion rendered this day hy the Court in the above entitled matter, for the following reasons:

This is a suit hy a real estate agent for the recovery of hiB commissions alleged to he due him under a contract signed hy the defendant, the material parts of which, for purposes of this case, read as follows:

"I hereby offer and agree to purchase through you, P. J. Reaman, for the sum and price of $7,000.00, the following described property * * *
"If this offer is accepted, I will deposit with you immediately in cash 10 per cent, of the amount thereof on account of the purchase price, non interest hearing, this deposit not to he considered as earnest money, the parties hereby reserving the right to demand specific performance.
"Should I fail to comply with the terms or conditions of this offer after same is accepted, I obligate myself to pay on demand your commissions on this sale, and any attorneys fees and costs of court that you may incur in enforcing collection of your claim. This offer remainB binding and irrevocable until _.
(Purchaser's signature) (Sighed) 3. Putnam
Address _.
Hew Orleans, la., 4-11-1922.
”P. J. Leaman, agent.
"I accept the above offer, also terms and conditions, and agree to pay you for services rendered $210.00, same being earned and payable when agreement to purchase is signed’and offer is accepted.
(Signed) Fred Hesse."

TJpon the. above contract plaintiff sued defendant, who refused to comply with the conditions of offer to purchase and hence it is claimed that the $210.00 (3% of $7,000.00, the total purchase price) is due by the proposed purchaser unto the plaintiff herein. There is judgment in plaintiff's favor for the amount prayed for, with attorney's fees and interest.

I see no error in the judgment and believe it should be affirmed. A careful review of the evidence and of the pleadings dlsdoses the fact that the defendant, in the early business hours of the morning of April 11, 1922, signed the above offer to purchase and that shortly thereafter, not later than 11 o'clock of the same day, the offer to purchase was accepted without any qualifications whatsoever. The testimony of both plaintiff and defendant verier these facts, but it is contended as a matter of defense and alleged in defendant's answer that - the written offer was declined and after the declination the., original offer to purphase was withdrawn by defendant. . Further in his answer it is alleged as an admission that the offer which respondent had signed before same was declined end called' off by responden^ did provide, for the.payment of commissions as set forth in the. written contract, but that same was. not binding on respondent after said offer was declined’' and withdrawn. It la far that alleged.-In defendant1 a answer that said commissions would have been due had defendant's offer to purchase been accepted before same was subsequently withdrawn, but that defendant's offer to purohase having been declined and subsequently withdrawn, that the contract sued upon was hence set aside and absolutely,null and void. This defense is not borne out by the testimony, because of the facts Just noted, to the truth of which both litigants have testified.

In direct examination plaintiff swears that he presented the written offer to .purchase to the defendant early in the morning, that he signed same and that at 11 o'clock the vendor of the property accepted the said offer to puroJiaBe; that he, plaintiff, then phoned the.wife of the defendant stating that the transaction had been closed and that the owner of the property had accepted defendant's offer to purchase; that he subsequently called at defendant's residence, about same day, to advise him in person of .the accepted offer to purchase and to collect, if possible, the ten per.cent, deposit agreed upon; that defendant thereupon refused to comply with the terms of the contract to purchase, giving as his reason therefor that the rooms of the house were too small and the ceilings too. low; that he had with him the written contract of sale and exhibited same to the defendant, showing him that, the owner of the property had also.made written acceptance of the offer to purchase. There are two letters in the record which show that, within a reasonable time, defendant was oalled upon to comply with the terms of thfc eontraot and that his lawyer, in repxy to these demands, wrote á letter giving as the only exouse for failure to-comply with the contract the fact that defendant’s offer to purchase had been rejected. The testimony of the owner of the prop-arty is direct and positive that there was no .qualification. ah¿t-;' ever of his aooeptanoe of defendant's' offer-to purchase and. that said acceptance was signed hy him about 11 o'clock of the-saae day in whioh the offer to purchase was made, to-wit:-. April 11, 1922.

notwithstanding these positive statements made hy' plaintiff and the owner of the property, the defendant took thi stand and never at any time attempted to deny or refute the tear, timony given hy the plaintiff to the effect that the reason” for-' rejecting the property was that the rooms were’too small and the. ceilings too low. There is not a word from him in the record'as., to why hi* original offer to purchase was withdrawn, and the fact cannot he denied that his attempt to rejeot the offer to purchase, was made subsequent to the written aooeptanoe by the owner.

This -brings us to the only controversy in the’-whole'.' proceedings and involves the credibility or not of certain testi?-mony given hy the defendant, ms wife and son.' Their uniform; story is that the plaintiff phoned defendant's wife during tne day of April 11, 1922, and stated that he had "good and bad-news,1! about the proposed sale of the property and that- he would call-, at defendant's house at once to see him aoout the matter'. The defendant and- his son claim to have been present when plaintiff called, and both of them state that this remark was repeated to the defendant with the added statement "Would you be willing to pay$100.00 more for the property?" Ho other witnesses than those who are clearly interested witnesses are shown to have heard' such a conversation and the plaintiff vigorously denies that he ever-made such a statement either over the phone to the wife' or subsequently to the defendant and his son, and follows up his vigorous denial with the statement that he showed the written aooeptanoe to the defendant and that defendant's only response to the information that the property had been sold was that he would not take it because the ceilings were too low and the rooms too small and that he was not getting a "good buy."

Nothing that has happened in the whole history of the •transaction would justify the Appellate Court in believing these three interested and related witnesses when the trial, court, who saw and heard all the witnesses, doubtlessly disregarded defendant’s story or its attempted corroboration by his wife and son.

I am particularly unable to concur with the view of my colleagues in this matter beoáue hat I believe to be the controlling law of the case,, irrespective of the evidence. Even though plaintiff might have been guilty of an attempt to raise the price of the purchase for good or bad motives, it is evident that the offer to purchase was in such language as gave to the owner of the property the absolute power to accept and, by accepting,^bind the purchaser without further negotiations. There was nothing further necessary to bind the purchaser under the law applicable to the contract or offer to purchase, after the owner had signed the document above quoted.

Article 1802 Revised Civil Code reads:

"He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made under terms, which evince a design to give the other party the right of concluding the contraot by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow."

The language of the Article just quoted is peculiarly applicable to the facts of this case and it was not necessary, in order that the purchaser or defendant in this case should be bound, that either Reaman, the agent for both parties, or the owner should have noti-fled the defendant of the acceptance of defendant's offer to purchase. In other words, the contraot.in which is involved an offer and an acceptance, was fully completed and the minds of the parties in relation to same had fully met at the moment of the acceptance hy the owner of defendant's offer to purchase, that is, about noon of the sans day, to-wit:. April 11, 19S2, in which the entire proceedings over which this suit has arisen occurred.

In the case of union Saw Mill Co. v. Mitchell et al., 122 La., 900, the Court in discussing a case in which a contract to purchase certain timber lands had not been signed by the ven-dees or purchasers, clearly shows what ruling must be given under R. C. C. 1802, where the contract has been signed by all parties, particularly those who propose to purchase. In the latter case, as in the case now before us, if the proposition to purchase is made in such terms as show the intention of the purchaser to give the other party the right to bind the sale by assenting thereto, such assent is all that is necessary to conclude the transaction and bind those who aire involved.

In my opinion, both the law and the evidence is conclusive that the owner of the property herein involved could absolutely bind the defendant in this case to purchase the property in question. This faot when applied to the law of the case makes the plaintiff!s contract for commissions absolutely due and owing.

.Ror these reasons, I respectfully dissent to the majority opinion herein rendered .and believe that the judgment of the trial oourt^as appealed from^sliould be affirmed.


author: BY: WIBDIAM'A. BEIL, JUDGE.

text:
    JOHN D. NIX, JR., versus ALEXANDER MADISON
    NO. 8, 745
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    October 16, 1922.

   BY: WIBDIAM'A. BEIL, JUDGE.

By verdict and judgment rendered, in the trial of this cause in the Civil District Court for the Parish of Orleans the plaintiff, John D. Hix. Jr., now appellant Before this Court, was recognized as entitled to a vendor's lien and special mortgage in the sum of $295 hearing on certain real estate formerly Belonging to the defendant, Alexander Madison, now deceased. This same property at date of and for sometime prior to the above judgment, had passed to Joseph Petrie & Co., ltd. (subsequently in liquidation) By constable's sale in suit #67672, First City Court of Hew Orleans, which suit was Brought By said Company to enforce a lien for labor and material furnished upon the aforesaid property when owned By Madison.

By judgment of this Court in the case of John T. Nix, Jr., v. Joseph Petrie & Co., Ltd., #7900 Orl. App., title in the above property was declared to have passed from Madison to Petrie & Co., Ltd., on April 19, 1915, By virtue of the constable's proces-verbal of that date.

By judgment of this court in the case of John T. Nix, Jr., v. Joseph Petrie & Co., Ltd., #8242 Orl. App., it was definitely decreed that -Petrie & Co.'s title, acquired By the City Court Constable's sale, was subject to and Burdened with Hix's aforementioned superior vendor's lien and mortgage, reduced to judgment on Maroh 9, 1915, in the cause #111,202, Civil Distriot Court for the Parish of Orleans, Being the original suit of John T. Hix, Jr., v. Alexander Madison, the identical case in which the afores-said verdict and judgment now under review were rendered.

By judgment of this Court in the consolidated appeals Hos. 8289 and 8419, the oase now again on appeal was remanded to the District Court for the Parish of Orleans, the judgment of the said lower court Being reversed ana une cause Being remanded for the purpose of compelling the plaintiff and appellee, Hix, to render full and complete, account of the rents and revenues of the property in litigation during the time that Eix had been in posession thereof hy virtue of a sheriff's deed declared in this Court under appeal #7900 to have been null and void, and providing that the taxes and insurance and other expenses incurred hy Eix should he credited to him as against his indebtedness for such rents and revenues, all in accordance with such evidence as might he adduced on the trial to he had for which the case was remanded.

It was further ordered hy this Court that in this new trial the question as to whether Eix's lien Tías superior to Petrie's claim for labor and material should he determined, and it was also further ordered that Eix should he permitted to proceed with his executioh if his claim, on second trial, was found to he superior to that of Petrie's, conditioned upon there being a balance in favor of Eix.

The result of the trial of this cause under the decree remanding same to the District Court, was' that -the jury rendered the aforesaid verdict in favor of Eix, for the sum of $095, dissolving the injunction without damages and without interest on said amount, and recognizing Eix's vendor's lien to he superior to the claim for labor and material asserted hy the ■liquidators of Petrie & Co., ltd., and allowing Hix to proceed with the execution of his claim filed in the said proceeding, via ordinaria.

Prom this judgment Eix has taken the appeal now under consideration, on the ground that the judgment of the jury was insufficient, and that there should have been a balance in favor of Eix in the sum of $562.42, with 8% interest on $299.28 of said amount from January 1, 1922 until paid. The judgment in this matter, which was rendered hy the Court a qua, in support of the verdict of the jury, reads as follows:

"Considering the verdict of the jury, the law and the evidence being in favor of defendant in injunction, John D. Eix, Jr., as rendered herein, it is ordered, adjudged and decreed that there he judgment in favor of defendant in injunction, John D. Eix, Jr., and. against plaintiff in injunction, Joseph Petrie, louis E. Reiser, and John J. Modénbaoh, as liquidators of Joseph Petrie & Company, limited, and Joseph Petrie and Company, recognizing the special mortgage and vendor's lien of John D. Eix, Jr., upon the property herein foreclosed upon to’be $395.00 lThree hundred and ninety five dollars), after giving due credit for all the rents and revenues collected ty him (John D. Eix, Jr.,) from said property and for the disbursements made thereon by him.
It is further ordered, adjudged and decreed that the special mortgage and vendor's lien of John D. Eix, Jr., is superior to the Plumbing claim of Joseph Petrie and Company and Joseph Petrie and Company, limited.
It is further ordered, adjudged and decreed that the injunction herein sued out by the liquidators of Joseph Petrie and Company, limited, be dissolved, without damages against them and their surety.
It is further ordered, adjudged and decreed that all other'costs herein incurred be borne by Joseph Petrie and Company and Joseph Petrie Company, limited.
Judgment read and rendé red in -open Court, Thursday, May 4th, 1922.
Judgment read and signed in open Court, Tuesday, May 16th, 1922."
(Signed) Columbus Reid, Judge.

The appellant herein moved for a new trial, but same was denied by the Court with reasons as follows:

"This ease was a difficult one to submit to a jury, as the issues involved were technical and intricate, questions of law, as well as acoounting, and the jury may not, and could hardly be expected to thoroughly understand the issues. I feel that the balance due on’the mortgage notes of John D. Eix, Jr., should be paid by preference over the judgment of Petrie & Co. The jury has evidently subordinated Eix's' claim to that of Petrie & Co. by deducing the amount of his claim by the amount of Petrie & Company's. However,, the matter oan better be determined by the Court on appeal rather than by submission to another Jury, and the motion for a new trial, will, therefore, be refused."
E.O., la., May 8, 1922.
(Signed) Columbus Reid, Judge...

An examination of ^the exhibits and’ testimony' herein filed is conclusive that the total amount due ,Hlx on;th,e items of expenses such as taxes in the sum of $55.92.and- t«paii|iii in the sum of $150, and of the total mortgage interest, attorney's fees and costs of $728, should he allowed, bringing the total amount due Nix, including 8$ of $299.28 on the principal debt, to the sum of $933.92. Against this amount, the evidence shows that Nix collected rents while in the aotual, but illegal posession. of the property, to the extent of $371.50, whioh amount, when deducted from the above total of $933.92, leaves a balance due Nix on the above items of $562.42. We are of the opinion that the Judgment of the lower Court' should therefore be amended, increasing the allowance to Nix from $395 to $662.42.

On the appeal herein taken, Nix urges here, as he did in the trial of the ease as remanded, that he should also be allowed 20$ damages on $562.42, or the sum of $112.48, for the illegal issuance of the injunction taken out in this pro* seeding by the plaintiff in injunction to Petrie & Co., now in liquidation. This latter claim, in our opinion, is not well founded, for the reason shown by the unusual and protracted litigation in this case, and which establishes a Justification of the injunction proceedings recognized by this Court in the decree rendered on Ootober 31, 1921, in the consolidated cases Nos. 8389 and 8419, Orl. App.

While it is true that the final trial before Jury Justifies the Judgment setting aside the injunction, the original granting of the same was, in our opinion, Justified, and therefore cannot carry with it at this time the statutory damages herein claimed on appeal.

The liquidators of Petrie & Co., ltd., ap-pellees herein, have answered the appeal, and it is contended by them that they are entitled to 5fa interest on rents collected by Mr. Nix, but this must be denied, for the reason that the record discloses that all rents collected during each year were added at the end of the year and deducted from Mr. Nix's claim, thereby reducing his claim by the amount of the rents, and stopping interest whioh would otherwise have been due on said amount of rents.

The further contention of appellees herein that Nix is only entitled to 6$ interest on his claim from the time of the adjudication of the property to Petrie & Co. rather than 8tfo contractual interest under the mortgage, is, in our opinion, not sound in law nor justified hy the facts of this case, and the authority cited in support of said contention - the case of Morris v. Cain, 39 Am. 713 - is not applicable to the facts of this case, Nix's suit under his non-alienation pact via ordinaria being against Madison, his debtor, and not against the original adjudicates, Petrie & Co,

Our exhaustive consideration of the most unusual and protracted litigation which has existed in the several suits involved in this case, running for over five years, and in which no less than five appeals have been taken to this Court, results in our conviction that the verdict and judgment herein appealed from is correct in every respect except as to the insufficient amount for which Nix's vendor's lien has been .recognized. We have already noted above the proper increase which should be given to the monied judgment .in favor of Nix. In all other respects, the judgment should be affirmed.

It Is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is amended, so as to allow John D. Nix, Jr., plaintiff herein, the sum of $562.42, with &fo interest on $299.£8 of said amount, from January 1, 1922, until paid. It is further ordered, adjudged and decreed that the injunction herein sued out by the liquidators of Joseph Petrie & Co., ltd,, be, and the same hereby is dissolved, without damages against them and their surety. It is further ordered, adjudged and deoreed, that all oosts of this appeal and the costs of the lower court herein incurred, shall be borne in solido by the liquidators of Joseph Petrie & Oo.,ltd., successors of Joseph Petrie & Co.'.and the surety on the injunction bond.

JP1SMENT AMENDED. ANN AS AMENDED. AEPIBMBD.

October 16th, 1922,


text:
    Mary A.Ferguson,Appellant vs B.A.Murphy
    No.8750
    Charles F.Olalbome,Judge.
    March 19 th 1923.

   Mary A.Ferguson,Appellant. vs B.A.Murphy.

No.8750

Charles F.Claiborne,Judge.

This is a damage suit.

The plaintiff alleged that the defendant is the owner and operator of a oarousel,or " flying-horse " located in the City Park for the amusement of men,women,and children,and especially the latter,charging a fare,for the use thereof;that the carousel consists of a circular platform upon which are wooden horses and other animals upon the backs of which the patrons sit while the platform itself revolves;that the horses are about four feet from the floor of the platform making it tfiffioult for small children to mount upon them without assistance;that at the expiration of three minutes of circular motion of the platform it is stopped to permit patrons who have ridden thereon to alight,and to allow others to get upon the platform to ride; and when no more persons desire to ride the platform is- again put in motion;and while in motion,an agent of the carousel moves around the platform and collects fares from the patrons thereon; that the .platform is about six inches above the floor of the Carousel;that on June 88th 1980 petitioner entered the carousel with her two grand nephews Joseph V.Ferguson,aged nine years and William Ferguson,aged three years;that petitioner boarded the platform of said carousel with William Ferguson to help him to a seat upon the back of one of the horses;that after placing her aforesaid grand-nephew,William Ferguson^on said platform’,and before the said platform had begun to revolve,proceeded to alight therefrom;and that as she placed her right foot upon the floor of the building-housing Said carousel,and before she could remove her left foot from the circular platform,the agent and employee of defendant suddenly and without warning of any kind whatsoever started the same in motion with the result that petitioner's left foot being pulled suddenly forward, caused petieses? petitioner to be thrown violently to the floor of the building injuring petitioner as hereinafter set forth.xxx that without making any effort whatsoever to observe petitioner,and the side on which petitioner was standing,and utterly without giving petitioner any warning that he was about to start the platform in motion again,and without affording petitioner an opportunity to safely alight therefrom, thé said agent and employee of the defendant^, recklessly and negligently started the said platform again in motion throwing petitioner to the floor as aforesaid;xxx that at the time petitioner got aboard of said circular platform it Vías stopped,and petioner boarded same for the reasons aforesaid,and then proceeded to alight before it had resumed its motloniixx " ; that after the accident petitioner was taken to the Touro Infirmary where an examination disclosed that her right thigh was- broken; that she remained in bed for about two months and up to this day is unable to walk without pain and is compelled to use crutches.

She'claims $817.70 for actual expenses,and $5,000 for suffering and for disability.

The defendant admitted ownership of the carousel, admitted that an agent went around and collected fares after the commencement of the ride,admitted that the platform is about six inches from the floor of the building;and admitted that the platform was put in motion after it became evident that no more persons desired to step upon it."The defendant denied all the other allegations of the petition,and further answering averred!
" That in operating the carousel he uses every care and precaution and that a bell or gong is usually sounded before the carousel begins to move and every one receives warning thereby not to get on or off of the said carousel after said bell or gong is sounded;that if the said plaintiff had'paid attention to this warning she may not have been -injured,if she waB injured at all to the extent stated in her petition;that the said oarousil started off very slowly and does not get in full operation until it has made three» or four rounds,and it does s.eem ompossihle that the said plaintiff had been so injured as stated in her petition,unless she deliberately Jumped off the said machine while in full motion,and if she had used every proper precaution and oare and not acted in a oarelss and negligent manner she would not have been injured as she so alleges in her petition. Respondent further alleges that he has been operating the said carousel in the City Parle for more than ten years,and the same is being operated with every oare and precaution and proper warning given to all patrons and that he has no knowledge of any such accident having occurred to the extent mentioned in plaintiff'& petition and if such did occur it was really due to the fault and carelessness and negligenoe of the other party and through no fault of his."

There was Judgment for defendant and plaintiff has appealed.

Plaintiff has supported most of her allegations by her testimony.She has been corroborated .in the main by the testimony of her grand-nephew living with her,a child nine years old at the time of the accident,and eleven years old on the day he testified.

In commenting upon the value of the testimony of children the Supreme Court of our State in Hubener vs RED.23 A U ft 493,quotas Ram on Facts who says:

"When a child is a witness it will be natural to receive its evidence with proper caution.xxx and there is danger lest a child should borrow something from its imagination,or from what it has heard other people say,and so amplify facts A/ beyond their Just measure and etc. 142 La 652 .

The two questions for determination ares

1 st Whether the defendant was guilty of negligenoe,for negligence i& the basis of this action; and 2nd Whether the plaintiff did not contribute,by tier negligence^ to bring about the injury upon herself Í

The evidence is that parents and nurses with ohildren get aboard the platform to put the children upon the horses, and then,either stay upon the platform themselves or get off.

The defendant testifies that he has been living in this City for the last twenty two years,during which time he has been operating flying horses in this City;that he has been in the business for thirty five years;that he operates three carousels in this City;one in the City Park,a second at Audubon Park,and the third at Spanish Port;he erected the one at the City Park where the accident occurred;he builds carousels from the ground up,platforms,horses and all;they are moved by electricity;they, start slowly and very gradually; it takes two or three turns to get them at full speed;if they did not start slowly,but with a jerk,there would be nothing left of the machine,it would all be upon the ground;it is a physical impossibility for any one to get hurt,if they should fall off while the machine is merely starting;he has never heard of an accident like the one to plaintiff.

The operator of the machine testifies that he has been so employed on the defendant's oarousel for nine years, and that he always sounds a gong before he starts and when he stops,and that he sounded the gong on this occasion.

This testimony establishes in a conclusi#» manner that the defendant manages his oarousel in a prudent and careful manner,and that an experience, of nine years in the City Park and of more then twenty years in this City has been free no of any accident under sueh management.There isAevidenoe that the carousel on this occasion was managed in a different way; nor is there any act of negligence signalized on the part of the defendant.The only charge is that while the carousel was stationary,the plaintiff proceeded to get off of it,and while she had the right foot upon the floor of the building and the left foot still upon the platform,the carousel started to turn. Assuming that- testimony to he correct it constituted no negligence on the part of the defendant for four reasonssThe first was that a hell was rung to give notice that the carousel was about to start;the second was,that oven if no hell was rung, or,being rung,was not heard by the patron,he incurred no risk of injury if he got off the platform without delay;the third was,that grown persons getting on .the platform to assist children often remained upon it with them,and the operator could aot guess their intention to get off;and the fourth was,that from an experience of many years no patron alighting from the platform at a short interval of time after it had started,Had ever got hurt,and therefore, the defendant was not put upon his gueard as to the possibility of such aa accident as that which happened to plaintiff.

" As a general rule when an appliance,or machine, m structure,not obviously dangerous',has been In daily use for years and has unifomly proved adequate,safe,and convenient, its use may be continued without the imputation of culpable imprudenoe or oarelessness." 106 N.T. 196 (141) .

II. But while the-plaintiff testifies that she was.in the aot of getting off,and that the carousel started before her left foot had left, the .platform of the carousel,three witnesses testify that she jumped from the platform after the the oarousel had revolved several, times and while it was In motion,.

They are the operator of the oarousel and two disinterested witnesses who happened to be inside of the oarousel at the moment of the accident,and who say they saw it all,and picked up the plaintiff after she had fallen.The veracity of these witnesses has not been impeached.We are bound to beliewe them.A* any rate theri testimony throws so much doubt upon the facts alleged by plaintiff as to defeat her right of recovery. Plaintiff must establish her olaim with reasonable certainty.

It is therefore ordered that the judgment herein be affirmed.

Judgment affirmed.

March 19th 1923 .


text:
    Jos W.Foster and Al. Appellants. vs Sylvester Peet and Al.
    No.8752
    Charles F. Olalhome .Judge.
    January 9th 1923.

   Jos W.Foster and Al.Appellants. vs Sylvester Peet and Al.

No.8752

Charles F.Claiborne,Judge.

This is a suit to annuli pretended amendments to a constitution.The petition is in the name of eight members of an association of the Orleans Freight Handler's Union,Local Ho.489 .They allege that the association had been operating under a constitution adopted in 1906 and ^mended in 1918. That the defendants pretend that the association adopted certain amendments to said constitution on February 26th 1921^ and that,they propose to hold an election under said pretended amended constitution;they allege that said amendments were never legally adopted,and th*t an election under them would be null and void.They prey that the defendants,who are the President and Vice-President,and Treasurer^and Secretary be enjoined from holding said election or from imposing'the so called amended Constitution and By -Laws upon the members of the association.

We find it necessary to pass only on one point. Section / of article 3 of the constitution of 1918 provides:

" Regular meetings of the association shall be on the second and fourth Saturday nights of each month,The hours of meetings shall be : from April to September inclusive, 8 O'clock ,P.M. to 11.30 P.M.,and from October to March inclusive 8 O'clock P.M. to 11 P.M. ."

Section 1 of article 2 of the By-Laws of 1918 read as follows:

" At all meetings the President shall take the chair at the appointed hour,and a quorum being present the association shall proceed to business,and he shall close the meeting precisely at. 11 O'clock,as no business dene after this hour will be legal.

An extract from the minutes of the association of February 26th reads as follows :

"Repor/t of speoial committee,appointed to revise the constitution and By-laws,the secretary of the speoial committee^ A.W.Kellyjread the revision of the constitution and by-laws, from the preamble,article by article and section by section-. The oommittee dn the revision is as follows} On motion of Brither Albert MaBon,seconded by Brother A,Williams,the revision of the constitution just read be received and promulgated immediately,carried and adopted.Just above this minute which I have read,the minute book shows the following entry:the meeting a joined at 11 O'ocloc]c,and osaoaAed to finish reading the revision of the constitution and by-laws"

It is evident that the constitution of 1921,and the amendments of the constitution of 1918 were adoptedfin whole or in part^after 11 0 ' clock.and that,in the language of the Constitution of 1918^the hours of business were from 8 to 11 P.l£. ,and in the language of the By-laws,no business done after that hour would be legal.lt follows that the amended Constitution adopted February 26th 1921 was not legally adopted and cannot be the basis for an election of officers or for any action of the association.

It is therefore ordered that the judgment herein be reversed and annulled,and that the defendants herein Sylvester Feet,Thomas Adams,George W.Ray,and Albert Simpson,be enjoined fpom holding an election for officers under the amended Constitution and By-laws of the Orleans Freight Handler's Union Local Ho.489 purporting to have been adopted on February 21st 1921 and from putting the same into execution ; reserving to said Sylvester Peet and others the right to vo>e upon said proposed amended Constitution and By-laws in accordance with che Constitution and By-laws of 1918 after such notice,and at a general or speoial meeting and within such hours as therein provided »

The costs of this suit to be paid by the defendants.


author: BIT: WIHIAti A. BSLIi, JUDGE:

text:
    JOSEPH W. FOSTER. ET AL. versus SYLVESTER PEETE. ET AL.
    NO. 8752.
    COURT OF APPEAL PARISH OF ORLEANS
    November 13th, 1922.

   BIT: WIHIAti A. BSLIi, JUDGE:

Defendants and appellees have filed a motion to dismiss the appeal now before this Court, on two grounds:

first, because the appeal was not filed in time; second, because the plaintiffs are no longer members of the Orleans freight Handlers Union, local, Ho. 489, the principal defendant and appellee, and are therefore no longer interested in the said matter under litigation.

from a judgment in the Trial Court dismissing an injunction applied for by Joseph W. foster and fifteen other plaintiffs, an appeal was taken to the Supreme Court, where the said appeal was dismissed for reasons tersely set forth in the syllabus of the said Court, reading as follows:

"Where the allegation made by appellants, for purposes of appellate jurisdiction, that the amount involved exceeds $2,000 (the lower limit of this Court), is a mere conclusion, and unwarranted by the faots and circumstances of the case, the appeal will be transferred to the Appellate Court having jurisdiction."

The decree of the Supreme Court dismissing the appeal before it, ordered that the appeal be transferred to the Court of Appeal for the Parish of Orleans, provided the same should be lodged in this Court before the expiration of fifteen days after finality of the Supreme Court's decree.

The Supreme Court refused a re-hearing in this matter on June 5, 1922, and it appears from the record that the transcript was filed in this Court on June 17, 1922, well within the fifteen days given for the transfer of appeal.. It is apparent, therefore; that the first ground for dismissal of the appeal in thi.s Court is’ not well founded. There is Bo merit in the further contention that the Supreme .Court , is without jurisdiction to transfer an appeal to this Court,j La. Constitution 1981, Seo. 10, provides.* among other matters goyemihg the jurisdiction Of the Supreme.-Court :foii'o.wa.í

JURISDICTION.
"Section. 10. The Supreme Court shall have control of, and general supervision over all inferior courts and shall have further jurisdiction as follows: ****
It shall also have original jurisdiction for the determination of questions of fact affecting its own appellate jurisdiction in any case pending before it; and to that end may make such orders and decrees as it may deem proper in the premises."

Defendants and appellees seek 'to establish their second ground for dismissal of this appeal by affidavits filed herein on June 20, 1922, whereby it is attempted to be proven that Joseph W. Poster and other -plaintiffs and appellants have no longer any interest in the subject matter appealed from, there being an affidavit and certain certificates attached to the motion for appeal as proof in support of this second contention.

On the other hand, Joseph V/. Poster, himself, and certain other co-plaintiffs in the original suit, have submitted affidavits contradictory of the facts sought to be proven in the motion to dismiss. On the face of the record of appeal, and from documents and affidavits now before us, it is most apparent that the issues arising in this cause are not in e££k fact mooted questions, but are such as should be determined for or against the parties litigant, who still appear to have an interest in the subject matter in controversy.

We are therefore of the opinion that the seoorfi. ground for dismissal of this appeal is also unfounded.

MOTION TO DISMISS ¿PP3AD IS DENIED.

November 13, 1922.