text:
    NO. 8286
    COURT OF APPEAL PARISH OF ORLEANS
    R. F. GRACE PRINTING & MANUFACTURING COMPANY VERSUS JACKSON BREWING COMPANY.

   Dinkelspiel; J.

Plaintiff institutes this suit sgsinst the defendant, alleging that on or about.the 1st day of January, 1920, it sold to the agent snd representative of defendant Company, 6132 triangular shape ten-ply card-board bottle holders, at s.n agreed price of $33.33 l/3 per thousand, total of sale amounting to $204.50, and. the goods sold were to be supplied snd furnished per sample furnished by plaintiff to the defendant company. That in due course of time the said order was filled snd the goods in number as bargained for were delivered to defendant oomp&ny by plaintiff and repeated demand having been made for payment, which was refused, hence this suit.

Defendant answering denies that the goods delivered was as per sample furnished them by plaintiff, and but on the contrary it avers that the goods delivered were of a lighter and inferior card-board than the sample and would not answer the purpose for whioh they were designed and intended.

The testimony in this os.se, of William D. Grace, who testified that he is in ths printing end box manufacturing business in this city, snd Secretary and Treasurer of the plaintiff oompeny; further that he gave €,.sample to Hr. Fe.be.oher with marks on it with .pen snd ink; ten ply board; received it snd delivered the geode.

Q. You supplied the goods to him?
A, Yes, sir; ten ply go&rd, same es ssmplo X g=vs him.

On cross examination he identified the board offered in evidence.

Q, Do you recognize this card marked defendant 1?
A. Yes, that is the board I gar' him; th't is the sample I gave him.
Q. Do you recognize this triangular board which I had you, marked defendant 3?
A. Yes sir, this is tee job that we completed for him.
Q, That Is one of the oards you furnished?
A. That is the semple and the oards furnished the ls-rge size.

The two oards in question 1 and 3 together with the .other six cards of similar oharaoter were offered in evidenoe in this case by the defendant.

The next witness for plaintiff was if. W. Graessle.

Q. What is your oooupation?
A. I am the manager of Diem & Wing Paper Company,
Q. You are not connected as a psrtner or owner with Mr. Grsoe'e establishment?
A. Ho sir.
Q. How long have you been in the paper business?
A. All my life; twenty years possibly.
Q. What are your duties in connection with the company with whom you work?
A. I have the overseeing of their business in general, buying and selling and everything else.
Q. Are you familiar with different grades of paper and cardboard?
A. To the extent that I am able to hold my present position, yes sir.
Q. And does that necessitate your knowing the different grades of cardboard?
A. Yes sir.
Q. Are you familiar with the rules governing different grades of paper end how to test them?

Objjeotion was made »s to the revelency; the oojection was overruled and the answer to the question was "yes sir".

Q. Do you know wh'-t ten-ply card board is?
A, Yes sir.
Q. How is the ply of card board determined?
A. By points, for instance thirty six points would be a ten ply board.
Q. And how do you arrive at the number of points in the board?
A. By guages of different kinds.
Q. Is there any ste.nde.rd gusge used by the paper business?
A. Hot that I know of, we use several different guages in our business.
0. Heve you- eny instrument in Court for testing or determining the grade of card board?
A. I might test it with this (indicating)!
0. Wh-it is thst!
A. This is a micrometer.
Q. Is thst used es v standard for testing card board!
A. Yes sir,
Q. Are you femili®r with the use of & micrometer?
A. Yes sir.
Q. I «¡¡iycu. the two pieces of cprd board whioh hove been introduced in e.videnoe end ask you to determine by that micrometer the ply of thst c?rd board?

Objections because it had not been shown that the micrometer w-s the standard guege. Objections overruled.

Q. Tsist the two pieces of cord board hended you?
A. (the witness makes a test with the micrometer end says)

This board here, mefcked defendant two is easily as thick as the small sa-mple marked defendant 1.

Q. What ply are both of those boards?
A. They are ten ply board.

On cross examination.

Q. Would you say c-s an expert in the piper and card board business thst a delivery of oard board such as defendant two whioh is the trisnguler board w=s up to & contract under whioh a oard such as defendant one was to be delivered?
A. Yes sir,
Q. Is the board defendant two as good quality as the board defendant 1!
A, In my opinion it is,
Q. Why is it -that board defendant two the triangular board is not as stiff as the one marked -defendant one?
A. Well one res son is thst you may- take a boa-rdj-ita paper has grain the seme as wood so you may take a piece of paper end fold it wi-th the grain end it will fold easily, fold it opposite the grain and it will fold herd, you oan take s. piece out like this and if the grain runs this way it will fold easily and will seem’ to be weak, if you fold it opposite the grain it will a to be a stiff piece of paper; it is a question of the way you fftlfiL it end bow the grain runs; new reslly to tell just how it would test by the "feel" th*t is so for as strength is concerned would be to put a piece like this like defendant one—

This witness being asked to meke several tests of Humber 1 and number 3 does, sc and the question is then propounded to him:

Q,. is it not s ftot that defendant 1 tests only thirty seven and the other thirty nine or nearly forty?
A. Ho, that would prefe that defendant two is a heavier paper than

Witness being asked the name of the instrument with ■which he tested the small one end the other EfxiSKx exhibits answers thet the instrument is e. miorometer.

Q, How is it not a. fact with regard to ten ply board that there are msny qualities of better
A. Yes sir.
one Q, Then/ten ply board would not necessarily be as good as another ten ply board would it?

On reexamination:

Q. Are the boards marked D. 1 end D, 3 of the same quality?
A. Yes pratioally, in my opinion it is the sene quality.

With the exoeption of marking and offering in evidenoe, the oard boards annexed to the petition, both plaintiff end defendant rested their case.

Webster's International Dio.tionery defines the word "micrometer" as follows^

A oallper or guage with a miorometer sorew for measuring dimensions with great aoouraoy.

And other stated authorities appear substantially to give the seme definition.

Under this standard and having reviewed the testimony in full of the expert in this case; who was in no. manner financially or otherwise connected- with plaintiff company, who used the machine in question in order to a?oertdn the ply of the,\. oard hoard, all in the presence-ojf .the Judge below., we are .bound ■U believe- from.' this testimony, that '• theqgoods furnished "" defendant were of tile same cnaxaover as ordered by them and were delivered e.s suoh.

Trreepeotive and independent of this fact, we have the Distriot Judge, who sew the witnesses and who heard all and the testimony in this oase, fiaat saw the machine and how it vis.s used, wid he rendered judgment in favor of plaintiff as and/there seems to be no manifest error in his opinion, his judgment must be affirmed.

For the reasons assigned, it is ordered, adjudged and deoreed, tlu-t the judgment of the Court aquo be and the same is hereby affirmed, costs of both courts to be paid by the defendant.

-judgment affirmed-


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    Charles Í. Claiborne, Judge.
    WM. CLARK, Appellant vs LOUIS MANNING, Administrator.
    No. 8287
    June 19th, 1922.

   M. CLARK, Appellant vs LOUIS MANNING, Administrator &c

No. 8287

CHARLES F. CLAIBORNE, JUDGE.

Petitioner seeks to recover from the Succession of his "wife $1720.84 on the ground that he paid a like amount for re-fpairs, and improvements, and taxes, and paving upon the separate ''property of his wife during their marriage, with money earned by him during marriage.

He bases his suit upon the following Article of the Civil Code alone, as there is no other Article that gives a husband a money claim against his wife for this cause of actioa viz:

C.C. 2408 (2377) "TOien the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common, labor, expenses, or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade".

Plaintiff testified that he had spent the sum claimed by him in repairs, improvements, taxes, and paving, and produced vouchers in support of his claim. But not a word is said in his petition, or in the testimony adduced by him, as to the enhanced value of the wife's property resulting from those expenditures. The exception of no cause of action filed by defendant, should have been maintained, and the judgment of nonsuit upon the merits must be affirmed, unless plaintiff shows that the, ex- - penses which he claims create, of themselves, oroof or presump-ti on of enhanced, value.

The interpretation of the above Article by the Supreme Court has been: that the surviving spouse has no claim for the sum of money expended for repairs or improvements, but only for the amount that such improvements have enhanced the value of the property at the time of the dissolution of the community.

In 33 A. 540 the Court said:

"It is settled that the recompense due by the separate estate of the wife for improvements placed thereon, during marriage, at the expense of the eormunity, is the enhanced value resulting to her separate estate, from the improvements at the date -of the dissolution of the community". 4 i S. 22.1; 4 R. 278 (2865; 6 R* 508; 8 R. 182 (187); 12 R. 385 (389); 6 A. 635; 14 A. 194, 763; 23 A. 736; 27 A. 591; 28 A. 431; 35 A. 94; 50 A. 974; 129 La. 1015; C. H. 1437; 3 Dalloz Codes Ann.p 947 No. 129.
“ "The. separate estate cannot be charged with the cost of improvements, but only with the amount that such improvements enhanced the value of the property".

2 A. 43; 28 A. 431; 36 A. 509; 50 A. 974; 129 La.1015.

As early as the 10 R. 373 (382) the Supreme Court said:

"We could not, with any sense of justice, or viith any propriety, recognize any right in the plaintiff to be compensated for the one half of the value of the increase or ameliorations, by subjecting the defendant to the payment of the one half of the estimation of the separate improvements, or of the cost thereof, for, as we said in our first decision (4 R. 278) thi3 would often be unjust, as the relative increase of the property might, in many instances, be very far from being adequate to the cost and expense which the ameliorations originally occasioned".

This reasoning is peculiarly applicable to this case, where the amount claimed for improvements perhaps exceeds the value of the property.

As the community ms presumptively the usufructuary of the paraphernal property of the wife, it ras hound to hear, without compensation, the expense of repairs and taxes. C. 0. 2385; 2386, 570, 572, 573, 578, 579 , 594.

Judgment affirmed.

June 19th, 1922.


author: : V/IILIAM A. 3311, JUDGE..

text:
    MARCEL B. DELLANDE, versus JOSEPH D. PASCAL
    NO. 8288
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL,- JUDGE:
    June 19th, 1922.

   : V/IILIAM A. 3311, JUDGE..

Defendant herein appeals from the Judgment ren-dored against him in the sum of $771.33, an amount for which the Judge of the trial court found him liable to plaintiff, who has-claimed clamagos in the sum of $1,571.33. plaintiff and appellee herein has not answered the appeal to this Court, nor prayed in any way for the amendment of the Judgment as rendered in his favor. The trial was without Jury.

Plaintiff's petition alleges that on the 14th day of September, 1920, at about 2:25 A.II., while driving and operating his Pord automobile down Burgundy Street in this City, and while going- in the direction from Canal street, that at a short distance past the intersection of St. Ann Street his automobile collided with, and ran into a one-horse spring wagon standing some thirty or forty feet from the corner of St. Ann and Burgundy Streets, on the river side of Burgundy and heading down torn, and that as a result of said collision his automobile was damaged to the extent of $66.33, and that plaintiff himself sustained damage, including doctor's bill, for $5.00, to the total sum of $1,605.00, making a total amount claimed in the petition of $1,571.33.

It is charged in the Tetition that in violation of the city ordinances and of all other laws of the road, that defendant's wagon was unlawfully placed in the roadway so that traffic was obstructed, and that no lights were on the wagon to give proper notice to the public of its location, even though unlawfully parked on the street at that time; that petitioner's physical damages resulted in a severe laoerttion of the ear and ohin; that in the hope of avoiding permanent soars he was compelled to submit to a second operation, all of which resulted in great pain and suffering, and that notwithstanding the said operation, he will be permanently soarred and, disfigured.

We find from the evidence that defendant's wagon was undoubtedly located on the river side of Burgundy Street about thirty or more feet from the corner of St. Ann, the rear part of the wagon being towards St. Ann Street. On the wood side of Burgundy street, and almost directly opposite the wagon, there was a pile of sand and gravel being used at the time for the purpose of repairing Burgundy Street, and that this sand or gravel pile, together with tool box and cement bags,the latter situated on the wide-walk, were properly lighted by red lights.

There is some confusion about the locality of the sand pile, two of defendant's witnesses and one of plaintiff's witnesses saying that the sand pile was on the ri.-ht side of the street in front of the wagon. The preponderance of evidence, however, is that the sand pile was located as we have found it, that is, opposite the wagon in question.

It appears from the evidence that plaintiff had been out riding with some friends about mid-night, and after returning from the road to West End with three other men, all of whom had left him, he proceeded down Burgundy Street towards his home, and when reaching the corner of st. Ann Street he observed the sand pile and red lights to the left of his machine , and in his efforts to avoid the same, turned his oar to the right, with the result that he ran into the wagon, which he claims not to have 3een, and which he swears had no lights of any sort upon it.

The evidence is convincing that at this corner the street was well lighted by electric lights, but there is no evidence to show that at the moment that plaintiff's oar came down the street that there was sufficient light for him to see the wagon parked some distance from the comer. He states that vías while driving, one of the wheel3 of his machine ran on the oar traok and the other on the wood side, and that when he v;as next to the sand pile he oould not go any other way, and that he hit the wagon, whose right wheel was over the oar traok; that the sand pila attracted his attention, and in trying to avoid it, ho came into oollision with the wagon.

There were no "ye witnesses to tho accident except the plaintiff himselfi^ho swears that the wagon at the time of tho collision was in a slanting position, that the shafts were on the^sfide-walk and the hack wheel was on the track.

The evidence is conflicting as to whether there ras a light of any sort on tho wagon at the time of the collision. The first witness called for the defendant swears that he saw a light on the wagon at about 10:30 o'clock, while passing that corner, but this witness' testimony was entirely discredited by the Judge a quo, who said that he did not believe a word stated by him.

Another witness on behalf of defendant, when asked about the light on the waron said that he had not observed this fact. Throe of the witnesses lor j. lain!iff, that is, himself and two others, give positive testimony to the effect that there was no li. ht ■. iatsoever on tho wagon.

Tho defense offered to this suit is that the plaintiff was guilty of contributory negligence because he ivas driving « motor vehicle at c rapid speed, and that it vas his duty to be on the constant outlook for obstructions in the hijhvty, and that defendant's waron was at a com. lets stand-still, and had a red light on the rear thereof. It is'further contended that the corner net.r which the accident occurred was well lighted by olocrie ligr.ts , and that if plaintiff had been vigilant, and had used proper care and caution, he could, or should have men defendant's wagon. It is also charged that plaintiff ins intoxicated and incompetent lo o.rive sn automobile, and that jt. Ann street being at the time torn up and under repair, do fondant '.as justified, and in foot compelled to park Ills wagon on Burgundy street, for the reason that re could not get ingress or egress to Lis stable, which waa situated on St. Ann between Burgundy'and Dauphins. Defendant finally pleads that there were piles of sand, gravel and rook adjacent to defendant's wagon, which piles were provided with red lights to warn passersby of obstructions in the street.

Observing these several defenses-, we are inclined, from the evidence before us, to agree with the judge of the trial court, that they have not been supported by the evidence adduced at this trial. There is some- evidence in the record to the effect that plaintiff was intoxicated, but all those who are especially disinterested, particularly the two policemen who came to the scene of the aooident, testify to the contrary.

There is nothing in the evidence to show that the plaintiff in any way contributed to the adoident , or that he could, or should have seen the obstructing wagon which was entirely devoid of lights or danger signals, and defendant's own contention that the street was under- repair, a thing well known to him and not at all, so far as the evidenoe shows, known to the plaintiff, imposed on him the particular duty of seeing that the roadway was not, through any act of his, additionally obstructed, especially by his wagon placed just at the point where he admits in his own defense, other obstructions were given to that part of the road by those charged with its -repair.

The attempt to impeach the good character of . the plaintiff herein has, in our opinion, wholly failed, and has not favorably impressed this Court as to the strength, if any, which defendant has in his side of the case. .The first and important'point of law in the case, and whioh, no doubt, largely influenced the judgment of the trial court, is the traffic o®&' dinano.e relative to the lights which vehicles should have afteif the hours of daylight traffic. Art .IT.,Sec. 4 of-the ordinance' oovering the street traffic in the City of Hew Orleans .particularly ■the last clause thereof, reads as follows:

"All vehicles not motor propelled are required between one half hour after sunset and'one half hour before sun rise, to have on the left side a light which will show white 300 feet to' the front, and red 300 feet to the rear. In addition to'1,this, all spring vehicles must carry a reár end light."

■ ' In the case before us these requirements have been wholly unobserved, and .the liability of defendant cannot be avoided by pleading negligence on the part of plaintiff, such as has been urged by him in this case.

We find that though the street where the accident happened was under repair and was somewhat obstructed on the wood-side by the sand and gravel pile, the evidence is convincing that the river side of the thoroughfare was .well- open to traffic but for the unlawful and negligent aots of the defendant in obstructing same, and but for his added and gross negligence in failing to place upon the unlawful obstruction the lights and danger signals required by the traffic ordinance hereinabove quoted, ¡there is no evidence before us that plaintiff vías driving at a high rate of speed as alleged, but not proven, by defendant, or that plaintiff was in any other manner violating any traffic laws. We are convinced that the proximate cause of the accident wa3 the wagon obstruction to the right of the road and that side of the road where the plaintiff had a right to be, and that defendant's failure to even light the obstruction as' the law requires, deprived plaintiff even of his last clear chance to avoid the ao-cident, had he also been in any manner negligent.

It may be properly presumed that had. the wagon contained a red light in the rear that plaintiff would have seen it as he did the other red light on the sand-pile just a few feet directly oppssite the wagon, and would thus.have been notified of the double obstruction existing on either side' of the road.

We have carefully examined the several authorities of our Supreme Court as cited in defendant's brief and supplemental brief, bui find them not applicable to the facts before us, for the particular reason that defendant has violated the law in two respects most conclusively against him that of using the public street under any conditions as an over-night parking place, and in failing to take even the most ordinary care to notify the public by lighting the obstruction unlawfully placed in the highway,

l’he trial judge has undoubtedly given most careful consideration to the extent or evidence of physical damage sustained by the plaintiff, and the amount allowed by him, to wit, ’§700 does not seem to us as excessive, fko amount of other damages allowed, as necessary repairs to the automobile and the small bill of plaintiff's doctor, does not soem to be in dispute.

s ',ve find no error in tho judgment appealed from, and same is therefore affirmed.

JTOGMBHE AEFIRIuKD .

June 19th, 19B2.


author: BT; WIDDIAM A. BEIL, JUDGE: JUDGE CLAIBORNE,

text:
    ROZELL McWILLIAMS versus MRS. JOSEPHINE DAWES
    NO. 8,290
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE!
    June 30th, 1922.

   BT; WIDDIAM A. BEIL, JUDGE:

This is a suit to recover brokerage fees in the sum of One Hundred and Eighty Dollars ($180.00) and the additional 25$ of said amount as attorney's fees, all of which is claimed under a certain contract entered into between plaintiff and defendant on April 00, 1918, whereby plaintiff was given the exclusive employment as agent, to sell certain real estate in this city, belonging to defendant.

It is alleged in the petition that the said written contract of employment stipulated that plaintiff should be continuously employed as defendant's agent, and should remain such until defendant should oancel plaintiff's employment by written revocation.

It is further alleged that the contract stipulated also that in case the property was sold during the existence of the contract, that no matter by whom the said property was sold, the commission of 5$ should be due to plaintiff together with 26$ additional as attorney's fees, if suit was brought to enforce the contract.

It is then alleged that plaintiff advertised the property for sale, showed it to numerous prospective buyers, and did all in hi3 power to effect a sale of the property, all at his own expense, and that while the said contract of employment was in force, the property of petitioner was sold by her for the sum of Six Thousand Dollars ($6,000.00) on August 26, 1919, and that petitioner never having revoked the contract made with plaintiff, there beoa<|)kCdue to plaintiff under the stipulations aforementioned, a commission of 3$ on the said $6,000.00, or the sum of One Hundred and Eighty Dollars (§180.00), together with an additional 26$ of said amount, attorney's fees, which petitioner would have to pay for the employment of counsel in bringing this suit.

The petition eonoludes with the averment that amicable demand was made in vain upon defendant for the payment of the oonmission as herein sued upon. The prayer is for judgment in the amounts above stated with legal interest on the whole amount claimed from August 26, 1919 until paid. The contract in Question was annexed to and made part of the petition

Defendant admits the contract ana all of the recitals therein set forth, and that plaintiff was employed by her under said contraot, but denied that the contract was never revoked or modified, and also denies that it remained in full force and effect on August 26th, 1919, without modification or revocation.

It is further admitted that the property was sold on the date just mentioned for the price of §6,000.00. ■Further answering, defendant alleges that on or about August 10th, 1918, while accompanied by a friend, she called at plaintiff's office and finding him absent therefrom, told his representative that she desired to revoke or modify the contract existing between her and the plaintiff, in that she no longer would oonsent to plaintiff's having the exclusive right to sell her property, but that if he procured a purchaser for her, or made a sale of it, she would pay a commission to him as she would to anyone else who might effect a sale, and that this instruction given to plaintiff's clerk was accepted by the clerk, who said that the matter would be fixed, and that report of defendant's wishes would accordingly be made by her to plaintiff.

Further answering, defendant says that acting under the belief that she had succeeded in revoking or modifying the oontraot, she placed the property in the hands of another agent, who subsequently sold it, and to whom she paid the brokerage. It is also alleged by defendant that not hearing, from plaintiff until after the sale by the second agent had been consummated, nearly one and a half years since the signing of the oontract herein sued upon, and fully one year after its revocation, that she had every.reason to believe that plaintiff had acquiesced in the modification or revocation of the contract. The answer concludes with the averment that plaintiff did not effect the sale of her property, nor did he procure a purchaser.

At the trial of this suit in the lower court, testimony was admitted over plaintiff’s objection to the effect in substance of what was alleged in defendant's answer, tlst is, to the verbal revocation of the written contract. The objection as made being overruled, plaintiff reserved a bill of exception, and the matter being before this court, we are of the opinion that the verbal evidence offered by defendant in an attempt to vary or contradict the written contract herein sued upon, was erroneously admitted.

The rule of evidence which properly excludes the testimony admitted in this dase is found in the Revised Civil Code, Art, 2276:

"neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them,or since."

This article has been upheld by a long line of decisions^ and is further noted under the general rule of evidence in 22 Corpus Juris Verbo:

VERBAL EVIDHilOE.
Par. 1459.
Contracts: (1) General Rule: "The most usual application of the parol evidence rule is with respect to contracts, a3 to which it is established that in the absence of fraud or mistake parol or intrinsic evidence is not admissible to vary, add to, modify, or contradict the terms or provisions of the written instrument by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements it to writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of their engagement, all previous negotiations and agreements with reference to the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing.
The rule, however, goes evqn farther than this, and it has been established that where the instrument is free from ambiguity and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing." La. - McGuigin v. Boyle, 1 La. A. (Orleans) 164. La. - Weinberger v. Merchants' Ins. Co., 41 La. Ann. 31, 5 3 738. La. - Robinson v. Britton, 137 La. 863, 69 S. 282; Block's Succ., 137 La. 303, 68 S 618; Egan v. Hotel Grunewald Co., 134 La. 740, 64 S. 698; Hafner Mfg. Co. v. Lieber Lumber etc. Co., 127 La., 348, 53 S 646; Wells v. Blackman, 181 La. 394, 46 S 437; Murphy v. Hussey, 117 La. 390, 41 S 693; Hebert v. Dupaty, 43 La. Ann. 343, 7 S 580; Porter v. Sandidge, 32 La. Ann. 449; McWilliams v. Reith, 149 La. 298; Ware v. Allen, 128 U.S. 595. (2) Wharton, Evidence 1014.

In the case of Freeman v. Diboll, 11 Orl. App. 199, under conditions quite similar to those now under consideration, this court decided "that the provisions of the contract being clear and unambiguous, parol testimony varying its terms was properly rejeotéd." In this same case the court ruled that additional evidence offered for the purpose of establishing by whose effort the sale of the property had been consummated, was also properly rejected, for the reason that the agency of the plaintiff or real estate broker being shown to be exclusive under the terms of the contract, any other evidence as to other parties having consummated the sale was immaterial. The court ruled in the ease just cited as follows:

"Where the oontraot of a real estate broker confers on him the exclusive agency to sell the property, and negatives the right of the owner to sell or negotiate for its sale, the broker is. entitled to his commission if, during the term of the contraot, a sale is effected by the owner or by another broker, on the • latter's behalf."

A similar ruling was made by this court in the case of Kostmeyer v, Landry, 12 Orl. App. p. 385, and again in the more recent case of Harvey v. Hirsh (unreported) No. 7518 of the docket of this court.

In the last case Just cited, the contraot sued upon was in part as follows:

"I will notify my agent in writing, and give him ninety days' notice if I desire this contraot discontinued - - - when this property is sold, I agree to bind myself to pay my agentSall over ‡4,500 for their commission, no matter by whom the property has been sold."

Interpreting the oontraot just above quoted, which is in many respects almost identical with the one herein sued upon, we have held that the great weight of authority supports the rule that a stipulation in a real estate broker's oontraot promising him a compensation, even though a sale of the property be made by the owner himself during the life of the contract, is valid and enforceable, where the broker has used ordinary diligence in endeavoring to make the sale of the property. 9 C.J. p. 575, Par. 74, Note 30 - 31; Futrel v. Reeves, 166 Ky. 282, 176 S.W. 1151.

Further conclusions of this oourt in. the case of Harvey v. Hirsh are as follows:

"It is true that the general jurisprudence is, and this court has itself decided, that in order to entitle a broker to a commission, he must be the procuring oause of the sale. But this rule applies in the absence of a oontrary agreement; there is no law that makes a nudum pactum a oontraot by whioh the agent shall be entitled to a o omission in the case a sale is made through himself or through the owner or through anyone else. Suoh stipulation is made precisely for the purpose of avoiding the necessity of-a law suit to determine through whose agency the sale was consummated."

Ihe law is concisely stated in Corpus Juris as follows:

"As a general rule, a real estate broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof, made by the principal, either independently, or through the efforts of another broker, within the time specified within the contract of employment, although the exclusive agent's efforts did not contribute towards the sale, when the principal himself sells the property without the broker's aid." 9 C.J. p. 622, par. 101.

We think, as above stated, that the testimony admitted in this case going to show that a verbal revocation of the contract sued upon had been effected, was an erroneous admission, but even though consideration be given to such evidence, there is positive and other evidence in the record to the effect that the plaintiff made frequent efforts to sell the property of defendant, and had several interviews with her and telephone conversations regarding it, subsequent to the alleged sals by the other broker, to whom the defendant, in violation of her contract, delegated additional authority to sell her property.

It further appears that after the plaintiff had testified to these facts just mentioned, that defendant was recalled to the witness stand, and when asked to affirm or deny plaintiff's testimony concerning his transactions with her subsequent to her attempted revocation of the contract, she could not in any manner be positive as to whether or not such conversations or interviews had ever ooeurred, contenting herself with the statement that she did not remember ever hearing from plaintiff at all, but admitting that she- had learned from neighbors that the property had been shown to various prospective purchasers.

We have considered the authorities oited by counsel for defendant, and find them Inapplicable to the facts of this case, for the reason that in those oited eases parties to the written contract had entered into a new agreement as to some part of the original contract, and it was rightly ruled that parol evidence could under such conditions be introduced to prove the new agreement.

The facts of the case now under consideration are ijuite to the contrary, in that the parol evidence offered was for the purpose of proving a revocation of, and not a change in the original contract, and was particularly offered in substantiation of the averments of defendant's answer to the effect that she had attempted a verbal revocation in direct disregard of the specific provision in the original contract that the said contract could uot be at any time revoked except by a written notice.

plaintiff and appellee, in answering the appeal herein taken, prays that the judgment appealed from be affirmed, and that damages for frivolous appeal be allowed herein. ,iu find from the record of this case no ground for damages as herein additionally prayed for, and same is therefore denied.

Ihe judgment herein appealed from is, in our opinion correct, and the same is hereby affirmed, at defendant's oost in both courts.

JPBGMBira AgEIBMSD.

June 30th, 1922

ROZELL McWILLIAMS VSMrs. J033PHIN3 BASES, WIB. CALVIN HTA7Í

No. 8290

JUDGE CLAIBORNE,

dissenting*

Tbs defendant testified that she called at plaintiff's officé in July or August 1918, and told a young lady occupying a desk in that office and apparently a clerk representing the plaintiff, that she came there to cancel the contract, and that she did not want plaintiff to sell her property except without a contract* and that the clerk answered it «aa all right. The defendant is corroborated in this testimony by a lady who accompanied the defendant and who heard both the defendant and the clerk.

In her answer to the petition in this case the defendant alleged:

"that an or about the 10th. day of August 1918* accompanied by a friend she called at plaintiff*s office, but not finding him at bis office, told his representative that she desired either to revoke or modify the contract into which she had entered with the plaintiff; that she wished to revoke the contract or modify it bo that he would not have the exclusive right to sell her property; that if he however* procured a purchaser for her or made a sale of it 3he would pay him a commission as she would to any ons else who might effect the sale; that the person to whom she spake, a clerk of the plaintiff, said it was all right and that she would fix it and report to Mr. Me Williams, what she had said*.

Notwithstanding this answer, entering upon more details than is usual and -putting plaintiff fully upon his guard and notu withstanding the testimony of the defendant and of her friend, the plaintiff did not produce his clerk as a witness to deny either the allegations of the answer or the testimony of these witnesses. We must therefore presume that plaintiff did not produce his clerk for the reason that she would not have contradicted the testimony of these twoMies. 33 A. 1057, 1073; 144 379; 106 La. 591 and authorities; 41 A. 866* 39 A. 426; 38 A. 823k 777 (779)* 36 A. 688. 434.

71» presumption also is that his cleric caraiimicated to tho plaintiff tbs message she had received from the defendant, tho plaintiff however denies it. Be also saya he never was notified by Mrs* Hyatt of any revocation. Of this, however, there is no claim subsequent to the date when defendant alleges she revoked her procuration, plaintiff testifies he thinks he had one interview with the defendant and several telephone conversations. The defendant denies this.

In ootanenting upon the testimony of parties in. their owi behalf, the organ of the Court, in Cola vs Colo. 39 A. 880, cfiotes tho langiage of the immortal Scottish bard as follows!

*1 no say men are villians all.
The real, hardened, wicked.
She has nae fear but human law
Aro te tbs few restricted;
But ah! mankind are unce week
And little to be trusted,
then self the wavering balance shakes,
"Tie rarely right adjusted".

But it ie net necessary that knowledge of the revocation should have been coununicatsd by his clerk to the plaintiff, nor sea it necessary that tho defendant should have notified the plaintiff himself. Hética to the cleric or agent sea notice tO> the principal, sad the negli gsnoe of the dork mist bo visited upon his employer.

It is net necessary to say that while Article C. C. 2376 (2366) prohibits parol evidence against er beyond vfaat ie contained in written acts, or on duct may have bean said before, or at the time of unking then, or ainoe, with a view of enforcing or resisting the execution of the original contract, tho jurispru-dent» has always admitted parol testimony to show a subsequent amendment, modification, or abrogation or execution of a written contract, which the law does not require to be in writing. 5 H.8. I» writing.

It mu ¿voided forthe first tin* in Page vs Nicholson 27 A. 116 tint «torn the contract provided that no extra would bo •lloved uniese exeeatod under written authority» no parol m ad* ni* si ble in aid of a claim for extra*.

The rigidity of the rale «as relaxed in the Monarch ceso 49 ki 991 «boro the syllabna» after affirming the principle of the Rige east, concludes!

"it not baring been atom that the proprietor agreed is the change"»

In Wilma re Smith 114 la* 238 the Court enforcing a con» tract in shich a similar darme me insertad said on p 231 j

"In the ease cited (monarch) the testimony did not prove that the ownar knew anything about the extra wort. It folian that he had net assented to it. Here the wort «as dono». The owner me fragrantly about the building and saw the improvements as they were mads. It is not Shewn that the least objection was over mads, nor that they bars not received fell consideration*.

Story vs Insurance Co. 37 A. 254 ms a suit on a policy which provided that nothing should bo construed as a salver of any printed condition of tbs policy unless it was endorsed on the policy, fund testimony was admitted to prove declarations and ads of the Company amounting to a waiver of the policy» the Court admitted the testimony, and aaidt

•The reason of this ruling docs not antagonise the general principia which excludes parol evidence to con» tradict.or alter a written instrument. The offset of the testimony is not to deny the existence, or contradict tbs true meaning of the written instrument, but Binroly to stow acts of tto party to he benefited thereby, manifesting has intention to abandon or waive such benefit*.

In 3t. Landry vs Teutonia Ins. Co* 113 La. 1057 the Court aaidt

"Objection was made to the admiaaion of parol evidence to.prove waiver at proofa of loss, on the ground that the policy pravidsd that all waiver» of any of its condition» or stipulations mat bo in writing. In Story V» Insurance Co. 37 A. 294. it was hold that ouch & clausa did not apply to salvara by subsequent agreements. acta* or comtict".

It will this be seen that according to our own Supreme Court knowledge of the extra work and failure to object, are construed as an assent to it. and a waiter of the notice in writing.

Such is the great weight of authority in other States. 9 C. J. 251. 253: 43 Am. Rep. 382. 390; 67 N. Y. Supp. 177; 37 N. Y. S. 562; 141 N. Y. S. 222; 63 N. W. 479 reason of rule; 74 A. 763; 166 £U«. A. 20; 17 N. Y. S. 351. leases; 76 S. E. 895; 48 L. R. A. N. S. 579, 564; 39 N. W. 76; Bishop on Contracts 7066; 56 N. E. 335 (339); 53 Atl. 36; 2 L. R. A. 625; 69 Pac. 784; 3 Elliett on Contracts p 6 1861; 76 S. E. (W. Va.) 895 (1912); Simpson vs Mann, 48 L. R. A. N. S. 579.

*Yhe written contract, not under seal, provided "that no alterations or additions shall be allowed or paid for unless the same and the cost be agreed to in writing in advance ani.no change or Modification of this contract shell bo rocogiiaod unless evidenced by an agreement in writing9.

Oral evidence was given for the purpose of showing that change in the character of the work was ordered in behalf of !&nn, and that ha agreed to pay for it additional compensation. A brief in the case states that the clause just cpoted from the contract constitutes the reason wig- the Court took the case from the jury. We do not think that the clause justifies that mling. I quote from Page on Contracts* 1349;

"If the written contract contains an express provision that no change or modification thereof can he made except by writing to be. signed by one or both carries, the partios to such contract may, nevertheless modify or abrogate it by subsequent oral agreement, since the oral agreement rill operate as a waiver of the terms of the contract inconsistent therewith, including that term which requires taibseejssnt that the policy provided that all waivers of any of its conditions or stipulations mat be in writing. In Story vs Insurance Co. 37 A. 254. it was held that such a clause did not apply to waivers by subsequent agreements, acts, or conduct*'.

It will thus be 3een that according to our own Custom Court knowledge of the extra work and failure to object, aro construed ae an assent to it, and a waiver of the notice in writing.

Such is the great weight of ;authority in other 3tates. 9 C. J. 251, 253; 43 Am. Rep. 382, 390; 67 N. Y. Supp. 177; 37 N. Y. S. 562; 141 N. Y. S. 222; 63 N. W. 479 nmon of rule; 74 A. 763; 166 Ill. A. 20; 17 N. Y. S. 351, leases; 76 S. E. 895; 48 L. R. A. N. S. 579, 564; 39 N. W. 76; Bishop on Contracts 7066; 58 M. E. 335 (339); 53 Atl. 36; 2 L. R. A. 625; 69 Pac. 784; 3 Elliott on Contracts p 6 1861; 76 S. E. (V. Va.) 895 (1912); Simpson vs Mann. 48 L. R. A. N. S. 579.

The written contract, not under seal, provided "that no alterations or additions shall be allowed or paid for unless the same and the cost be agreed to in wrlticg in advanes and no change or modification of thi s contract shall be rooogtf sed unless evidenced by an agreement in writing".

Oral evidence was giren fer the purpose of shewing that change in the character of the work was ordered in behalf of Uam, and that he agreed to pay for it additional compensation. A brief in the com states that the clause just qistod from the contrast constitutes the reason why the Court took the case froai the jury. ¶* de not think that the clause justifies that ruling. I epote fren Atge on Contracts# 1349»

"If tbs written oontract contains an express provision that ns change or modification thereof can be made except by writing to be signed by one or boto parties, the parties to such coni met may, nevertheless modify or abrogate it by subsequent oral agreement, since the oral agreement will operate as a waiver of the term e? the contract incsesie* tent therewith, including that term wM«3j respires —^irfumt modification to be in writing. Question» of this sort are often presented in building contracts, where it is provided that Modifications of contracts for extra work Bunt be in writing and subsequent oral agreements for extra work or modifications are held valid*.

Bishops on Contracts • 7066 asserts this proposition broadly.

"Sham ha has agreed that he will only contract in writing in a certain nay, ha does not thereby «reelude himself from Baking a parol contract to change it. Thera can be no mora force in an agreement in writing fcbt to agree by parol than in a parol agreement not to agree in writing, and every such agreement is ended by the new one which contradicts it". 69 Tex. 353; 6 S. W. 605; 5 Am. St. 63; 3 W. Va. 46. A written contract is of no higher dignity, except under the Statute of frauds, than an oral contract and the «arty cannot tie his handB from its modification by prohibiting.it unless in writing. Everywhere we find the law to be that a new or changed contract will take the piece of, or modify, c former written contract not under seal. Clark on Contracts 610; 9 Cyc 597".
"But the parties to a written contract of the chamotor of the one under review (providing that no change shall be made except upon a written order) aro as free to alter it after it lias been made as they were to make It, and all attempts on their part by its terns to tie up their freedom of dealing with each other will be futile. 58 Conn. 39; 148 Mass. 394. To this end parol agreements will be as effective as written ones*. 74 Atl. 763 (765).
"It does not stand with reason that parties can by contract preclude themselves from contracting in any particular way; that such a contract, once entered into, becomes an iron bond, which the will of the parties is impotent to annul or modify". 53 Atl. 37.
"A contractin: party cannot so tie his own hands, so restrict his own legal capacity for futuro action, to Mad or obligato hlasclf by Mo further action or agreement eentrery to the ton» of tha written contract (which liptnl written oonsent to chango it}* 331'ich. 143*. .33 ®i’vW* (liiw*).VV.
^Attempts of partios to tie tip by contract their froedmaef dealing with saeh other era futile. The contract is a fast te be taima into account in interpreting the anbwecuent conduct of the plaintiff and defendant, no doubt, lut it sennet be assumed, as a miter of Is* that the contract governed all that web done until it was renounced in so many words, because the parties had a right to renounce it in any way» and by any node of ess* preseiott, they saw fit. They could aubetitut# a new oral contract by oen&tat and intimation, as well as by expresa words”. 2 L. R. A. 625,
"It has frequently beta bold in this State that res-fcrioiiv» eltnaee similar to» though not identical with, this ene, (that contract Mil not be altered except by writing}# «an be waived expressly» or by the acts and conduct of tiie parties. The oaaaon prevision in building contracts that no payments Mil be mads without the usual architect’» certificate is one? the very cesasen provision in leases that the tenant shall not sublet without the written permission of the lessor is another* 73 N. Y. 567; 102 N. Y. 87; 5 N. E. 791". 17 N. Y. 3upp. 351.

A written notion of 30 days provided IS a loase is sup* plied by evidenoo by an oral consent showing a waivor of the written notice. 70 N. Y. Sup. 210.

The prohibition in a lease to sublet the premisas for a different parpase without the written consent of the lessor nay be «hotel to have boon waived by parol consent of the lessor. 55 N. Y. Supp. 1; 4 Barb. 604; 7 Jones & 3. 200; 102 N. Y. 92; 73 N. Y. 567; 67 S. W. (Me.) 967.

"The consent (to «sublease) is sometimes required by the terms of tbs loose to be expressed in writing*.
"Written consent my be v.’sivsd by parol*. 24 Cyc 964 <©)»
"An open policy of insurance Kay bo Modified by safe*»* quent pawl agreement althers# the policy provided ths& Ho condition should ha waived excerpt by specific Indorse* moist on the policy®* 88 Mo. 325 (57 Am. Rep. 416); 39 N. W. Minn. 76; 37 A. 254.
libera a building contract psevides that
“®a extra work ia to be paid fee except by contrast ia writing0

the parties may verbally* expressly or isapliodly, or tacitly mila. this provision and agree to alterations by parol. 1 Creel. (16 Ed) 304; 18 Cal. 180 (165); 47 N. W. 473 (Neb.); 36 N. W. 510; 69 Pac. 784; 58 N. E. (ill.) 335; 76 S. E. 895 (W. Va.); 74 Atl. 764; 36 Atl. 36; 166 Ills. App. Cy. 20 ( 23); 54 N. W. 937; 6 So. 834; 2 L. R. A. 625 (Mass.); 43 L. R. A. N. S. 564 (568) and suthosi-tias there quoted? 48 L. R. A. N. S. 579; 17 N. Y. Supp. 351; 9 N. Y. St. 570; 24 N. E. 1096; 19 N. E. (Mass.) 549; 141 N.Y.S. 222.

"The casa seeroa to settle down to the simple question whether a parson who has agreed'that to will only contract by writing in a certain way. precludes himself from making a parol bargain to change it. The answer is aatáifeat. A written bargain ia of no higher 1-egnl degree Warn s paral one. Either may vary or discharge the otter, and there can be m mare force- in an agreement in writing rot to «gres by mrol than in a parol agreement not to agree in writing. Every such agreement is ended by the new on® which contradicts it". 33 Michigan 143 (153); 53 Atl. 37.
"A witten contract may be modified by a verbal agreement. thou# the contract recites that no modification «hall be made except in «radting*. 27 S. W. 504 (Texas); 11 Century Digest Tfo. Contracta p 13428 1123.
"A written contract may be modified by the parties thereto in any manner tbsy eteogs. notwithstanding agreements prohibiting its alteration axaept ia a particular mama?» So it is generally held that a contract stipulating that any modification must b® ia writing may novertheless he modified verbally". 13 C. J. 594.S611.
9 Cyo g 557 ill)
"A simple contraefe. Whether written or oral, my bo discharged, according to the weight of enthority, by a sáfese» tjuant written or oral contract, unless thers is a statutory provisión to thscontrary. Nor ia it material that the aritten contradi provides that no modification shall be nade except in \nritin& for this provision itself may be changed by word of mouth".

Sheas authorities are in accord with eessaantators of the Code H&pcleon. and -sith the decisions of the Court, of Cassation and Courts of Appeal of France in the interpretation of the right of the lessee to sublease, and for the grane reason. 18 Brajdry-Locantinerie sayas * 110? p E64s

"As we shall say further the verbal or tacit consent of the lessor suffices, even shan the contract of lease requires his consent in writing".
* 1117 p 588s
"The tacit consent msífíeea* oven when it has bean ¡said that the consent in writing of the lessor shall bo necessary. The necessity of a writing has bean stipulated only to facilitate the proof: the parties did not intend to subordinate the validity of tbs sub-lease to a writing. Sven had they so intended, the verbal or tacit consent would still be sufficient, because the lessor could not bind hi a hands and condemn M ras elf not to bo able to consent without a writing; therefore if he gives hia consent without writing, e new agreement is formed by virtue of which the @»MLease is admitted by the lesser. Hence, the Court ox Cassation does not ga far eno«gfc,,a¡ocoriling to us ia deciding that it belongs to the judges to decide finally if the writing has been or not, according to the wishes of the parties, a substantial element of the consent". C. N. 1341, 1717; 30 Dallo; Rep. p 406 S 475; 4 Dalles Codes Ann. p 325 No. 189 et seq; 1 Trolong Lounge No. 141; 25 Laurent £ 232.; 1 Guillouard Louage 327; 4 Fuzier-Herman on Art 171.7 p 254,48, 49, 50.

Assuming there foro that the verbal notice san given, assuming 'hr.t it reached plaintiff or his agent, which Í3 equally binding, assuming that the plaintiff made no objection to the parol notice, I have come to the conclusion that tlie parol notice inven in this case was sufficient, and that defendant had lOwlly revoked her procuration to the plaintiff in July or August 1918, and that plaintiff's claim is therefore not founded, end that there ought tc he judgment in favor of defendant rejecting hi3 demand.

June 30th, 1922.


author: Dinkelapiol} J*

text:
    NO. 8292
    COURT OF APPEAL PARISH OF ORLEANS
    LOUIS D. ROUYER versus PAUL L. FOURSCHY

   Dinkelapiol} J*

Pls.intiff sues, averring that he -was employed by the defendant to do oertein vrork and furnish material on property jr,sd by defendant on Esplanade Avenue and Burgundy Street, and also to do work and furnish material on property owned by de<*•'*"fend'-nt on Governor Hioholls and Marais Streets;and averring that ssid work was done, and materials furnished, that s^me v.'t-s dene properly and in accordance with verbal agreements and oontraote between plaintiff and defendant. He preys for judgment in the sum of $493.05, together with interest from August 3rd, 1918, and also for recognition of the lien and privilege on the property belonging to the defendant. An itemized account, is annexed to the petition and made part thereof.

Defendant filed exceptions, that petition was too vague,-- general and indefinite, and petition disclosed no legal cauee or right ox action. Subsequently defendant filed virtually a general denjral, denying each and every allegations in plaintiff's petition, but admits having ma.de r.av;noee to plaintiff by fer in excess of $325.00, but denies thst same were payments on acoount of the alleged ■ bill for vrork end materials furnished and denies hv’lng mf.de any payment on account of the pretended el"im ts set forth in plaintiff's petition.

Wherefore he preyed for judgment in his favor.

The evidence of plaintiff, together with that of Paul A. Vernsuille ’-nd Octave Honbognet, the two latter being vorkmsn employed by plaintiff in making repairs on defendant's property, after careful exemin-tion, satisfies us th‘b plaintiff and defendant con-rioted together t the times st* ted .--nd th--t pi. intiff dons work for the defend;nt ,'r;.m time to time in the presence meet of the time of de..'end'-nt himself who p..id on account of this vrork sums fgreed on, vni .hilst, as w.e uoubtlsis the opinion c-f the Judge below, th”t some of the v/orl-, w;s not properly done, we are satisfied tin-1 on tie whole the amounts allowed by the Court aquo was correct; he evidently gave oredit to the defendant for all work improperly done and mnterifls not in accordance with agreement, and therefore reduced plaintiff'e claim from §493,05, to §170,00, KHdxwxx and we are satisfied that this is substantially a correct and valid judgment. The Judge had the opportunity of seeing and hearing the witnesses, noting their demeaner End in every w6.y w-.s thus better qualified to judge of the truth of their statements ehk then we are and mainly questions of fact being involved we deem it he unnecessary to further enter into the contradictory testimony in this case. But the-Judge in his judgment also gave this judgment together with a lien and privilege on the property cf the defendant, which under the lew, we do not think should be allowed.

Civil Code, Art. 3373, referring to Contractors, Workmen end Msterial Men. "Architects, undertakers, bricklayers, painters, master builders, contractors, subcontractors, journeymen, It borers, sxrjasekk CEi’tmsn, masons and other workmen employed in constructing, rebuilding or repairing houses, buildings, or unking oth^r works; those v/ho have supplied the owner cr other person employed by the: owner or his agent or subcontractor 'with materials of any kind for the construction or repair of his buildings or other works; those who have contracted, in the manner provided by the police regulations, to m; ke or put in repair the levees, bridges, oti.nc.ls and rcs-ds of a proprietor, presei-ve their privileges, only in eo far as they have recorded, with the recorder of mcrtg’-ges in the parish where the property is situated, the act containing the bargains they have msde, or n detailed 3t-tement of the amount due, attested under the octh of the party doing or having the work done, or acknowledgment of what is due to them by the debtor."

Under the plain provisions of the Artiole above quoted, the oontraot in- question not having been recorded as the .law requires, the lien and privilege as rendered under the Judgment must be annulled.

For the reasons assigned, it is ordered, adjudged and deoteed, that the Judgment of the Court aquo be Bnd the same is hereby affirmed in so far as rendered in favor of plaintiff Louis D. Rouyer and against the defendant, Paul L. Foursohy, for the sun. of $170.00 with legal interest from August 3rd, 1918; and

It is further ordered, adjudged and decreed, that the judgment rendered which gives lien ahd privilege on the property desoribed, be annulled and set aside end in that respect that portion of-the judgment is reversed; oosts of both Courts to be paid by defendant;

And as thus amended, judgment i3 affirmed.

-Judgment amended and affirmed-


author: Dinkelapiel; J«

text:
    NO. 8296
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. WIDOW HENRY H. TOELKE VERSUS JOHN M. TOELKE
   Dinkelapiel; J«

The facta in this oase are substantially as follows:

Miss Hartara Toelke and Mrs. Margaret Simpson, the Exeoutrixes of the last will end testament of their mother, die late Mrs. Henry Toelke, obtained a judgment against the defendant, John M; Toelke, in the full sum of Five Thousand Four Hundred and Seventy Six and 38/100 Dollars ($5476.38) with legal Interest and oosts.

On this judgment a ftia fi fa was issued and garnishment direoted to the Canal Commercial Trust & Savings Bank.

The answer of the bank admits that on February 38th, 1931, at four P. M. it was served with a- notice of seizure in the above entitled cause; that at the time there was on deposit with said bank to the credit of John M. Toelke, the sum of One Thousand Hine Hundred and Thirty Dollars and Thirty Eight Cents ($1930.38); that at the time of said servioe there was then outstanding in the Clearing House of this City, oheoko drawn on said balance to the following parties to wit: Cheok dated February 36th, 1931 in favor of Paul Eugene for $50,00.

Cheok dated February 38th, 1931 in favor of the Delta Lumber ■^Company for $405.37.

Check dated February 38th', 1931 in favor of P. J. McMahon & Sons Undertaking Company for $7.00.

'Cheok dated February 38th, 1931, in favor of Stauffer EsheSman & Company for $53.40.

Cheok dated February 35th, 1931 in favor of the Estate of R. J. Holzer for $345.00,

Cheok dated February 38th, 1931 in' fa.vor of the Louisiana Glass & Mirror Works for $19.55.

Further answering aver that said cheoks were charged against respondent in the Clearing House on the morning of March 1st, 1931, e.t eight o'clock A. M. and that on account of servioe of the notice aforesaid, respondent has noted the said oheoks as drawn against said acoount and charged to respondent but has refused to pay same until the rights of 8.11 parties shell be decided herein.

Further shows that at eleven fifteen A, M. on Maroh 1st ?.ft“r the action of the Cleaning House aforesaid, that there wee served on respondent a petition and no'tioe of seizure thereunder. Further answering shows that said sum on deposit was subject to e. debt of Five Hundred Dollars due respondent by said Toelke, and respondent had the right to offset the defendant the said debt against the sai</ and in preference to •said seizure.

Further answering finally praye that the above answer may be deemed sufficient and that the several parties mentioned hereinabove may be notified of these proceedings; that the rights of all psrties, including respondent's olaim, as creditor against said fund may be determined end for judgment distributing the same accordingly and for all general and equits-ble relief.

This answer was sworn to and filed,

■ Subsequently on Maroh 14th, 1931, plaintiff through her attorney, alleged that the bank had filed answers admitting a deposit of One Thousand Mine Hundred and Thirty and 38/100 Dollars, by John H. Toelke and that the defense in behalf of sundry parties named by the hank together with the bank itself, should show cause on a day fixed, why the sum admitted to he due should not be.turned over to plaintiffs and the funds placed in the hands of the Civil sheriff to await the further orders of Court.

Subsequently there was filed the petition of intervention and Third opposition by the firm composed of John M. Toelke snd George Eitrnin, who averred that they oomposed a firm or partnership trading under the neme of John U. T&elke; that sold partnership was sgreed to and entered into in the month of February 1919 and has been in existanoe oontinuously sinoe that date and is now in existanoe; further that all of the business of sld firm was conducted under the name of John M. Toelke, including the hank aocount of the funds of the said firm, hills of account end the like, hut that notwithstanding that the said accounts, were carried on in the name of said John M. Toelke, they were the property of said firm.

4 TRat lindar the judgment rendered in ahora numbered and entitled oause against the eald John M. Toelke Individually, in ho manner oonneoted the said firm therewith nor did it grow out of the busiriees- of -said partnership, and that plaintiff has- undertaken to seize by garnishment process, certain funds aggregating the sum of One Thousand Nine Hundred,and Thirty and 38/100 Bollara, belonging to said partnership, deposited in its partnership or trade name in the Oanal Commercial Bank & Trust Company, and the said plaintiff is threatening to oolleot and take possession of said funds -in payment of said judgment and further that the said plaintiff will take possession of said funds and keep same uni unless prohibited from doing so by this Honorable Court; that the plaintiff is not entitled to oolleot any portion of the said funds because the se.id sum' does not belong to the said Toelke but belongs to the partnership existing between the said John JI. Toelke and George Eitmin, trading under the name of John M. Toelke as hereinabove set forth and reiterating that all of said funds are liable for and belong to the partnership, that prior to the attempt of the plaintiff to seize said funds, the said partnership had drawn and issued the following mentioned oheoks, against Said deposit, to the several parties named thereunt» der and they are identically the same names snd amounts as given in answer to the garnishment proceedings of the bank and henoe need not be repeated here.

They further in the 6th article of their intervention state that the firm had borrowed the sum of Five Hundred Dollars from said bank, whloh sum was credited to the said partnership acoount for the partnership business and the sum thus stated should be paid out of said funds.

The praver is that they be permitted to file this petition of intervention and third opposition s.nd that there finally be a judgment decreeing the amount on deposit to be paid to the various parties in the different amounts as sts-ted due them together with the sum of Five Hundred Dollars to the bank, end that the seizure of said funds by plaintiff be annulled and eet aside and deo^ared to be of no validity or effeot.

To this petition for intervention and opposition, ■plaintiff exoepted on- the ground that.said petition die- . olosed no right or oauee of notion.

And in the event this exception.is overruled, answer, that they have nothing on whioh to base a belief to paragraph one of petition for intervention; also that -they have nothing on whioh 'to bese a belief to paragraph two. of-petition for intervention; admitted though to paragraph three, the seizure alleged therein, admitted in paragraph four,- that they will take into their possession the funds seized if súooess'ful in said seizure.

Hot having sufficient information on whioh to base a belief the allegations of paragraphs five and paragraph six were denied.

Then respondents speoially plead estoppel based on the averments contained in said petition and failure’ to reoord names of said agreed partnership.

Finally pray that their exceptions be maintained, petition of intervention and third opposition be dismissed at intervendré1 cost, but in the event said exceptions are overruled then that said answer be deemed a good and sufficient answer and that intervenors1 petition be dismissed s.t their oosts and for general relief.

We áre confronted at the outset on the trial of this oase when witnesses for third opponents were introduced in evldenoe, with the objection of oounself for plaintiff, to the following effeot:

“I object to any testimony in support of the.allegations of the intervention and third opposition herein filed setting up-a partnership, on the ground that verbal testimony cannot be deduoed to prove a partnership, and on the further ground that there is no allegation of the recordation of any artioles of partnership as required by Article 3834 of the Revised Civil Code, by Artioles’ 3836 to 3838 of the Revised Civil Code,; by Aot 64 of I9i8 and by Act 248 of 1918."

The ruling of the judge was "Let ihashiastiist the objeotion go to the effedt."

And throughout the entire testimony as found in this record, end to eroh end every witness offered by third opponents the seme objeotion wes made end the seme ruling had, and we ere satisfied that the Court erred and the objeotion should have been maintained.

Article 2837. Firm Name. The business of this partnership must be conducted in the name of e,ll the persons concerned, unless a firm is adopted by the artioles of partnership reduced to writing and recorded in the manner directed by th“ last article.

Article 2838. Names in Firm Name. If the artioles be recorded, the parties may themselves adopt a firm which shall be composed of the name of one or more of the partners, but no other name than those of the concerned shall enter in suoh firm.

Act No. 64 of the Legislature of 1918, provides!

"That no person or persons shall hereafter carry on or oonduot or transact any business in this State under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless suoh person or persons shall first file in the offloe of the Register of Conveyances, in the City of New Orleans, or the Clerk of Court, as the case may be, of the parish or parishes in whloh suoh person or persons oonduot or transact or intend to oonduot or transact suoh business, a oertlfioate setting forth the name under which said business is, or is to be ponduoted or transaoted, and the true or real full name or names of the persons or persons owning, conducting or transacting the same, with post offloe address or addresses of said -person or persons. Said oertlfioate shall be executed adil&tty.p^ acknowledged before a notary publlo by the p8r»oa'ioí^ííór-'"'í.b sons so oonduoting or intending to. oonduot eiUd lnftSKMWS
And Section 3 provides: "That any person or persons now conducting suoh business under an assumed name or under any suoh designation referred to in Section 1 of this Aot, shall file suoh certificate as hereinbefore prescribed, within sixty days after this Aot shall take affect, and persons hereafter oonduoting or transacting business as aforesaid, shall, before commencing suoh business, file suoh oertifioate in the manner hereinbefore prescribed."

It is contended that under Section four of the Act of the legislature, Just — quoted, whioh reeds: "That this Aot shall in no way affect or apply to any corporation duly organized under the laws of this State, or any corporation organized under the laws of any other State and lawfully doing business in this State, nor shall this Act be deemed or construed to prevent the lawful use of a partnership name or designation, provided, that such partnership name or designation, shall inolude the true real name of et least one of suoh persons transacting ssid business." that this partnership in the name of John II. Toelke was in every vrt.y a compliance with the law. Vie do not so oonstrue the law, but on the contrary, -JHSíano recordation of this partnership h'-ving been filed in the office of the Register of Conveyances of the City of Hew OrleenSjand the real names of the partners composing the partnership and who were conducting the business together not with their designation was/a com.-li''nce with the statutesj and Toelke having held himself out to the world under the lew as the sole owner of whatever business may hove boen conducted, having deposited the funds in the bank to his individual credit, we consider this under the low hie property and his funds, and subject to the seizure in this oeee.

In so far :-s the bank is ooncsrned ¡md its ol-tim of Five Hundred Dollr-rs, under the plain provisions of the oopy of the note offered in evidence, the note not being due at the time these proceedings were instituted, the defendant, T'elke not having .become a bankrupt, no involuntary proceedings filed against him, and not having fsiled -In business, the bank had no legal right or lien and privilege : on the prooeeds in their hands.

For the reasons assigned, it is therefore ordered, adjudged and deoreed that the judgment toendered by the Court aquo in this pase be and the same is hereby reversed, set aside and annulled, and that there now be judgment in favor of plaintiff, Mrs. Widow Henry H. Toelke, represented by her Exeoutrlxee, Mrs Barbara Toelke and Mrs. Margaret Simpson, deoreeing that the money seized in the garnishment proceedings in this oase, amounting to the sum of One Thousand Nine Hundred and Thirty Dollars and Thirty Eight Cents ($1930.38) be paid to plaintiff in this oase, i

-judgment reversed and judgment rendered in favor of olalntiff-


author: CHARLES F. CLAIBOBNE, JUD®.

text:
    Charles''1?-. Claiborne, Judge.
    EDWIN P. CUNDIFF, Appellant VS SAM IMBRIGULIA
    No. 8297
    June 19th, 1922.

   EDWIN P. CUNDIPF, Appellant vs SAM IHBBIGOLIA

No. 8297

CHARLES F. CLAIBOBNE, JUD®.

This isa darnagp suit, resulting from a collision between truck and an automobile.

The accident happened on js^e^Mv^r side of a triangular portion of ground occupied by the^fruit martet, and covered with buildings and stands, bounded ait the base s^St. Philip Street, on the- Lake side by Decatur Street, and on the Hi ver side by Peters Street. At the apex of the triangle, Decatur Street and Peters Street merge into each other and leave an open space. A short distance above the apex, towards Canal Street» Dumaine Street runs into Decatur or Peters Street. Along the Hi ver side of the triangle, in the center of Peters Street, there are two street railroad car tracks. The rail of the track nearest the Lake is twenty feet from the curbing or banquette of the market and the street is fifty feet wide. The time was about llsl5 of a Sunday in the month of May; the weather was rainy.

A recital of the testimony of the several witnesses for the plaintiff and for the defendant would serve no useful purpose; it is sufficient for us to state the facts as we find them, and such as they are practically admitted by both sides.

The defendant was the owner of a heavy truck; he employed a chauffeur to drive it’. This chauffeur was driving the truck up Decatur Street, ana when he gpt to the extremity of this triangle he turned to Ms left and proceeded to cross Peters Street with a view of turning to his left towards Eáplanade Avenue. The ironb wheels of Ms truck had reached the first track towards the lake, when plaintiff's oar struck the front of his truck hitting the bumper and the front wheel. The driver of the truck did not stop before attempting to cross the tracks; nor did the collision cause it to stop; the truck continued until it struck the curb on. the other side of the street. 'When the impact occurred the driver says he was knocked off of his truck, and fell on the left side of the truck, although he was driving, on the right; but two witnesses say he jumped off of the truck on the right. The plaintiff says that neither he nor the lady in his ear with him was shaken or received a scratch. Defendant's driver says he

"blew his horn";

three witnesses swear they did not hear it.

The evidence is that plaintiff was driving'up Peters Street in his automobile on the right side of the street over the tracks of the street cars going uptown; that when he reached near the point where Decatur and Peters Street meet) the truck swung around the point and struck his right fender. One of plaintiff's witnesses, utterly disinterested, thus states it:

"Imbrigulia's truck turned around there at the point' of the market and ran right into his automobile"".

Another witness for plaintiff 'says:

"I gave the man my card and told Mm if he needed a witness to call on me".

Both the truck and the car were damaged. Plaintiff claims $1200 and defendant prays in reconvention $209.75.

There was judgment rejacting both demands. The plaintiff has appealed, and defendant joins in the appeal.

TMs evidence satisfies us that the defendant's truck was carelessly thrown in the way of plaintiff's car, and was the immediate cause of the accident. In doing so the driver violated all laws of prudence. He must have known that in crossing that much frequented thoroughfare and two car tracks he would more than probably be in the way in somS" veMole going uptown. It was raining and. many cprtains of the market stands aloné and fronting Peters Street, and more especially of. the stands near the apex of the triangLe, were down- and obstructed the view .between Decatur and Peters Streets. Besides he flagrantly violated two Sections of the City traffic ordinances which commanded him to come' to a full stop, to look, and listen, oh'approaching car tracks with a view of crossing them.

Section 8 of Article I of Ordinance 5181 adopted August 6th, 19Í8 ordains:

"Bight of Way: "Vehicles graveling on the following streets have'the right of'way over vehicles approaching on intersecting streets namely: St. Charles Street &c i x x, and. also all' other streets with street car tracks. Vehicls'e approaching above streets and avenues from intersecting streets shall, before crossing or turning into same, come to a full stop".

Thdre is no pretense that defendant's driver came to a Stop. If he had looked he could not have helped seeing the car winch wap in such close -proximity to him.

B£t defendant contends that this ordinance does not apply because Decatur Street is not an

"inteiaeting street".

The letter and spirit of the law is that vehicles travel^ ing on streets upon which there are car tracks, shall have the right of. way, and that this right of wg,y shall prevail over thosp. attempting tp cross them.

' Tnera^was a time, not suipi<±>us,when defendant's counsel agreed with us. For in the answer filed in this case, sworn to by him, he says:

"Your respondent's truck was slowly crossing the uptown track on North Peters Street at_the intersection of saM street with Decatur Street, going in the direction of the Biver &c".

But if we.are wrong in our interpretation of this section, then another section of this same ordinance condenas tiie defendant. Section 3 of Article II provides as follows:

"3- Intersections and crossings - No motor vehicle shall turn into or cross any right of way stfceet, as filed in Article One, Section 8,without first coming to a ful? stop to*.

The defendant also argues that the requirement as to stopping applies only to the particular streets and avenues specifically named in the ordinance, and does not affect

"all other- streets with street car tracks*.

We cannot agree with counsel, as the reason of the rule is the same.

Counsel- again agraes that the ordinance does not apply for the further reason that the failure of the driver of the track to-stop was not the proximate cause of the accident. We think, on the contrary, that the failure of the driver to stop was in the very teeth of the law and defeated its plain purposes, which were évidently-to give the driver of the crossing motor a deliberate opportunity of seeing an auto running on the right of way street, and to afford the car on the right of way street' an equal opportunity. We are convinced that if the track had stopped when it reached, the line of Peters Street, or within ten'.feet of the railroad car track, that it would have seen or heard the oar coning up Peters Street. Defendant's witnesses- swear they could see dovm to Drsulines Street a di stance of more than a block, and that plaintiff's car was making as much noise as an aeroplane.

Qf course, defendant's negLiggnce and violation of a City Ordinance would not alone justify a judgment against him, if the plaintiff himself had been guilty of negligence, or if by the exercise of dike care, he could have avoided the collision.

The defendant's only charge of negligence against the plaintiff is that he was speeding. Two witnesses testify to that: Rosit Grasso and B. Mutti. Both of those witnesses were on the banquet OÍ the fruit stand. In front of Mrs. Grasso the curtains viere dovm and only a small opening was left to allow people to pass. B. Mtitti says that there were no curtains in front of his stand. But there were in front of other stands. His testimony is fraught with exaggeration. He testifies that from his position, he could see dovm to Ursulines Street, which is the second street beyond the market; that the plaintiff's car was running at the rate of 40 or 50 miles an hour, and that, in running past him, it splashed the the water all over the sidewalk which was 20 feet distant from the rail. On the other hand the plaintiff and one of his witnesses swear that the plaintiff

"was going at a moderate rate".

We cannot conclude from this conflict that plaintiff's speed was in violation of the law or of reason.

This case is in line with several decisions rendered by us wherein we said that drivers of automobiles who by their violation of traffic ordinances bring about a collision must pay for the damage. See Joseph vs Orleans Ice Co. No. 8232 and Maxwell vs N. O. Ry. & Lt. Co. No. 8595; Boston Ins. Co. vs Mohdy No. 7891; Frey vs Cocino No. 8191.

In the case of Jones vs N. 0. By. & Lt. Co. 123 La. 1060, the Court said:

"His (the motonaan's) duty was to conform to the ordinance not to- reason about it. He had no discretion in the premises. It is the duty of the Court to see that an ordinance which was enactSd under the police power for the public safety should be rigidly enforced in aid of the remedy for the mischief sought to be guarded against".

We may add that it is public policy that such ordinances should be eniorced in order that chauffeurs of automobiles,^sr^h^angejyus^ instruments in the hands of the unskilled and imprudejj^ should be taught to exercise great care^jmd caution, and thus that the pro-party and the life of the citizen should be protected.

The only question that remains for solution is the amount of the damage.

The plaintiff testifies that the materials would cost the $ 583.88 sum of a witness testifies that the labor of replacing these parts wourd amount to 254.00 Making a total of $ 828.88

Judgment reversed.

June 19th, 1922.


author: BX: VíUiLIMI A. BEED, JUDGE:

text:
    MRS. LAWRENCE V. MOUTON versus NEW YORK INSURANCE COMPANY
    NO. 8301
    COURT OF APPEAL PARISH OF ORLEANS
    WHiilAH A. BEII, JUDGE:
    December 11, 1922.

   BX: VíUiLIMI A. BEED, JUDGE:

The plaintiff as Beneficiary under an insurance policy issued on the life of her deoeased husband, for' the sum of -$2,000, sues defendant for said amount. Erom an adverse judgment, plaintiff appeals.

There is no contention as to the material faots mainly disclosed by documentary evidence. Testimony'by de-' positions taken on behalf of the defendant, is found upon examination to be of little value save to establish the dates upon which certain premium payments were made by George Clinton Mbutoji, the insured.

The policy in question is an ordiAary life insurance and investment policy in effect as of January 15, 1906, upon which date the first annual premium of $106.82 was paid. The insured also made two other premium payments, of iike amounts, one on January 15, 1907, and another on January 15, 1908. On the due ’ date of the fourth annual premium, to wit: January 15, 1909, same was not paid. Under the terms of the policy it íb provided that one insured at age "62,years" (Houton's age) having paid premiums for three years, as did he, and having defaulted in payment of premium for the fourth.year, the insurance would be extended one year and four months from date of default.

These faots all having arisen in the 'instant aA case, it follows^an indisputable fact that the policy; under term insurance, was extended automatically to May 15) 1910. It also appears from the provisions of the policy that had the insured paid the fourth annual premium on January 15, 1909, and defaulted in payment on the fifth annual payment, to wit: January 16, .1910, that Vhe'policy would have been extended automatically as term Insurance, one year and eleven months from date of the default ón the fifth premium payment, or, in other words, that the policy would not have terminated except by ad interim death of the.insured,until Hovember 15, 1911.

There is no authentic proof in the record of the insured's death, but plaintiff, by supplemental petition, alleges the same to have occurred on October 24, 1911. It is oon-olusively proven that no other premium payments were ever made, save the three heretofore stated, and that the insured defaulted in his payments on the fourth, fifth and sixth annual premiums falling due respeotively on January 16, 1909, January 16, 1910, and January 16, 1911.

It is contended, however, and,the plaintiff so alleges, that the fourth premium payment was paid on its due date, to wit:- January 16, 1909, in cash, ¡$S6.82, and hy oertain note of the insured for $79.00. Upon this allegation - not home out hy the faots as we find them - it is argued that though no other premiums were subsequently paid, the automatic term insurance as stipulated in the policy extended the life of the policy to November 16, 1911 - a period bdyond the death of the insured.

The sole issue for determination is whether the transaction above referred to, 'and which occurred between the insured and the defendant, on January 16, 1909, in any manner effected the contract of insurance herein sued upon. Defendant admits that the policy was dated January 16, 1906 (not January 16, 1907, nor February 16, 1907, as alleged in plaintiff's petition and supplemental petition) but denies that premiums were paid for four years. It further alleges that three premiums were paid carrying the policy to January 15, 1909, the due date of the fourth premium payment, but denies that any part of the fourth premium was ever paid by cash or note, though in fact, it did, on January 16, .1909, reoeive from George Clinton Mouton, the insured, $26.82 in cash, under and in accordance 'with a certain written contraot or agreement known as a "blue note," reading as follows:

"Bol.No.2266228 Rayne.Ia., 1/16,1909.
ON OR BEFORE July 16, 1909, after- date, without grace, and without demand or notice, I promise to pay to the order of the NBW-YOBE LIFE INSURANCE COMPANY, SEVENTY-NINE Dollars at Tihitney-Central National Bank, New Orleans, Da., value received, with'interest at the rate of five per cent per annum. This note is aocepted by said Company at the request of the maker, together with $26.82 Dollars in cash, on the following express agreement:
That although no-part óf the premium due on the 15th day of Jan., 1909, under Polioy No. 2256913 issued by said Company on the life.of G.C. Mouton has been paid, the insurance thereunder shall be continued in force until midnight of the due date of said note; That if this note is paid on or before the date it becomes due, such payment, together with Said cash, -will then be accepted by-said Company as peyment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; That if this note is not paid on or before the day it becomes due.it shall thereupon automatically cease to be a claim against' the maker, and said Company shall retain said cash as part compensation for the rights and privileges hereby granted, and all rights under said policy shall be the same as if said cash had not been paid nor this agreement made; That said Company has duly given every notice required by its rules or by the laws of eny State in respect to said premium, and in further compensation for the rights and privileges hereby granted the maker hereof has agreed to waive, and does hereby waive every other notice in respect to said premium or this note, it being well understood by said maker that said Company would not have accepted this agreement if any notice of any kind vie re required as a condition to the full enforcement of all its terms.
Name.(Name) C, Clinton Mouton, Address.(Address) Rayne, la."
#79.00

The defendant cashier at New Orleans, la, upon receiving the above cash and not», gave the insured a written duplicate receipt therefor, reading as follows:

"NEW YORK HI'S INSURANCE COMPANY 3*6 and 348 Broadway, N.Y.
Received from G. CIINTOH MOUTON, #26.82, in cash and a note for #79.00 dated the 15th day of January, 1909, due on or before July 15th, 1909, after its date, with interest at the rate of five per cent per annum, without'grace, and without demand o'r notice, payable at Whitney-Central National Bank in the City of Hew Orleans,-la. in the State of louisiana.
Said note is received by the NEW YORK 1IE3 INSURANCE COMPANY at the request of the maker and is held by said Company together with said cash on the following express agreement, whióh forms a part of said note:
’That although no part of ’the premium due on the 15th day of ’January, 1909, under Policy No. ’2255923, issued by said Company ’on the life of G. Clinton Mouton ’has been paid, the insurance there’under .shall continue in force until ’midnight of the due date of said ’note; That if this note is paid ’on or before the date it béoomes due ’such payment, together with said cash, 'will then be accepted by said Company ’as payment of said premium, and all ’rights under said policy shall there’upon be the same as if said premium 'Rad Reen paid when due; That if 'this note is not paid on or Re-'fore the day it heoomes due, it 'shall thereupon automatically cease' 'to Re a claim against the maker, 'and said Company shall retain said 'cash as part compensation for the 'rights and privileges hereby granted, 'and all rights under said policy shall 'Re the same as if said cash had not 'Reen paid nor this agreement made; 'That said Company has duly given every 'notice required Ry its rules or Ry the 'lav/s of any State in respect to said 'premium, and in further compensation 'for the rights and privileges hereby 'granted the maker hereof has agreed 'to waive, and does hereby waive evérjr 'other notice in respect to said pre'mium or this note, it being well un'derstood Ry said maker that said Com'pany Would not have accepted this '.agreement if any notice of any kind 'were required as a condition to the 'full enforcement of all its terms.
H3W YORK LIES BTSURAKCE 00., '
By 3.0. Toombs, Cashier."

There being no dispute that the signature attached to the original note, as above described, is that of the insured, the admission or declaration therein made to the effect "that no part of the premium due on January 15, 1909 has Reen paid," is conclusive of this all important fact,', and in the absence of allegations ana proof of fraud or error, same cannot Re questioned by one claiming under the policy. It follows, therefore, that there could not have Reen any automatic term insurance extending the policy to Bovemb'er 15, 1911, or until death of the insured on October 15, 1911, unless - despite the declarations contained in the note - it can Re held that the payment of the cash and the giving -of the ' note was'a payment in full of the fourth premium due January 16,190,9.

Suoh construction would Re abhorrent to the law of the contract as stipulated in the' policy which specifically provides that the insurance will automatically continue "if there is no indebtedness to the Company." a fact definitely declared to the contrary in the note itself

The contention of plaintiff by 'Which recovery is sought, can only he predicated upon the theory of novation under Revised Civil Code, Art, 2185, whereby an existing obligation is substituted by a new one in its place, but this can occur only where the old debt is extinguished by the new, and the intention so to do clearly results from the terms of the agreement, fully discharging the original debt. Such intention cannot be presumed. Rev. P.C. Arts. 2187,2189,2190. As just observed, there was not only no express intention to novate the obligation due for the fourth premium of insurance, but special declarations in the "blue note" and the reoeipt therefor clearly pronounoe against such intention.

Counsel for plaintiff cites with confidence the decision of Lawrence v. Penn Mutual Life Insurance, 113 La. 87, as authority against an insurance company's accepting a note in payment of a first premium, and subsequently forfeiting the policy or treating it as null without notifying xhe insured that such has been done because of his failure to meet the note at maturity. She facts in the cited case are clearly not applicable to conditions which have arisen in the instant case, particularly for the reason that in the "blue note" signed by Mouton, it is provided in most positive and unambiguous language as follows:

"Shat said Company has duly given every notice required by its rules or by the laws of any State in respect to said premium, and in further compensation for the rights and privileges hereby granted, the maker hereof has agreed to waive, and does hereby waive every other notice in 'respect to said premium or this note, it being well understood by said maker that said Company would not have accepted this agreement if any notice of any kind were required as a condition to the full enforcement of all its terms."

In Lawrence v. Penn Mutual Life Insurance Co., it is plainly indicated what the ruling would have been had the facts there been similar to those now before us, for the Court said even in that ease, the following, viz:

"If the company takes it as its own and approves his act, it is to be viewed in the light of having possession of a note which it accepted in payment of premium due on the policy. Unless it be stipulated in the policy, or in some way in the contract of insurance, that forfeiture is to be immediate in event the note is not paid, no such result can follow its. non-payment. She power to forfeit or cancel must he 'nominated in the hond.' Here no such consequence was stipulated."

She judgment of the trial court dismissing plaintiff's petition is justified hy abundant authority found in the jurisprudence of the highest courts of other states, where similar notes under like conditions have been construed as in no manner qualifying the terms or conditions of the original contract of insurance stipulated in the policy. - White v. N.Y.Life Insurance Co., 200 Mass. 512; Holly v. Metropolitan Ins. Co. 105 N.Y. 437; Baker v. Union Insurance Co., 43 N.Y. 283; Bank of Commerce v. New York Insurance Co., 125 Ga. 522; Slocum v. New York Life Insurance Co., 228 U.S. 364.

It is therefore ordered, adjudged, and decreed, that the judgment herein appealed from be, and the same hereby is affirmed, at plaintiff's cost.

JUUGIIEKT ARPIPISU.

Becember 11th, ‘1922.


author: Dinkelspiel; J,

text:
    No. 8302
    Court of Appeal for the PARISH OF ORLEANS.
    P. J. FLANAGAN, ADMINISTRATOR versus LAND DEVELOPEMENT COMPANY OF LA. LTD.

    Dinkelspiel; J.
   Dinkelspiel; J,

Defendant? files in this court, various grounds _to dismiss this appeal:

1.

That the transcript of appeal was filed too late, the return day for the appeal having been fixed by the Lower Court for June 2nd, 1931, and the transcript was not filed until June 6th, 1931.

II.

^ That this Court is without jurisdiction rations materias.

III.

That the matters and things complained of grow out of a judgment rendered by the Supreme Court of Louisiana and relate to the execution thereof, from which no appeal lies.

IV.

That if an appeal did lie, the appeal should be taken to the Court whose judgment is sought to be executed.

V.

That if this Court oould oonsider the appeal, then the appeal must be dismissed on the further ground that the appellant has not filed a full transcript of the reoord and all prooeedings had; that the transcript begins with an entry, of date January 36th, 1930, "Returned to fifa".

VI.

That there is nothing to show what took place prior to that date or prior to the return of said fifa.

VII.

That according to the petition of appeal the judgment or orders complained of are one rendered July 19th, 1930 and one rendered June 35th, 1939, neither of which judgments have been signed and no appeal can he taken from an unsigned judgment.

VIII.

That it further appears from said judgments or orders'that neither of them or appealable, one of said judgments relating to the annullment of an order transferring the case to another division of the Distriot Court and no appeal lies from suoh a judgment; the other is from a judgment maintaining exceptions to a rule to set aside a fifa issued in accordance with a final judgment of Court.

We have oopied verbatim the motion to dismiss substantially this appeal for the reason that it appertains/to the same subject matter decided by this Court at its last term and will be found under the No. 8383 in the Sucoession of Emma Williams, widow of Johness V. Martin, and on application for a rehearing, this Court issued the following order:

"Let this application for a rehearing be filed; let the rehearing stand refused for the present without prejudice however, to the right of appellee to urge his motion again when the oase is argued on the merits."

The Land Developement Company obtained a judgment against the Sucoession of Emma Williams, widow of Johness V. Martin.

there was In the exeoution of said judgment/tksxtsnst issued a fifa against the said Company on which it realized an amount insufficient to pay its judgment. In the meantime the Sucoession of Martin filed suit against the Company for a oertain amount. The Sucoession of Martin had been opened in Division "E".

In order to satisfy the balance due upon this there was Issued judgment/tiKkjjjfiuaxtickbaoauBS an alias fiji& against the Suo-oession of Martin under which writ it seized the claim in the suit of Flanagan, Administrator, versus the Land Developement Company, which is the suit presently before us.

Proceedings were carried on .in both Divisions "A" and "E" and orders rendered in both divisions and finally Division "A" ordered that no ííjía. oould be issued against the Succession of Martin and the Succession has appealed and also appealed from the order of transfer and asked that the writs of fi(fa be quashed.

At the time the Succession of Martin appealed neither of the above judgments, either in Division "A" or "E<! were signed, before the toansorlpt haa been fixed, but before the motion to dismiss was made the judge nuno pro tunc signed the judgment, refusing to quash the fifa.

The Succession has appealed from both judgments.

This motion presents question to dismiss this appeal upon the grounds -«hat the judgment was not signed cftxfc at the time this appeal had been taken.

As to the judgment quashing tne fjjfa, we consider that it was a final definitive judgment inflicting an irreparable injury upon the Succession and that it allowed the assets of the Succession to be sold and that judgment must be signed.

Hanohey vs. St. Louis, I. M. & S. Ry. Co. 135 La. p, 351, where in its syllabus, oiting authorities says:

"This Court has no appellate jurisdiction of a oase until a final judgment is signed in the oourt below. Therefore, when theattention of the oourt is called to the fact that the judgment of the district oourt was not signed before the transoript of appeal was filed in this court, the appeal must be dismissed."

State ex rel. Stewart, Dis't. Att'y. vs. Reid, Vol. 115 La. p. 595.

For the reasons assigned it is ordered, adjudged and decreed that the motion to dismiss this appeal must be sustained.