author: St,. Paul. Judge.

text:
    NO. 7287
    F. J. LEWIS MANUFACTURING CO VS MORGANS LA. & TEXAS R. R. & S. S. CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O Í I » I O i

St,. Paul. Judge.

Míe defendant oarrier furnished to plaintiff a defective tank oar from which a quantity of creosote 411 leaked^and was lost.

She defense is in effeot that the oil was lost.wholly through plaintiff's own negligence.

Prank Keshner foreman for plaintiff at that time and for three years afterwards, but not now in its employ,.testified that the oar was delivered at plaintiff's plant on a Sunday morning and loaded late that evening: that he discovered the leak about six o'clock next momia that he notified plaintiff's general manager by telephone; that the oar oould not be toloaded where it stood, and oould not be moved to the unloading plaoe because of other loaded cars between it and the plaoe for unloading; that he at once procured a wash tub from his home nearbj and put two men with buckets to carry off the oil; that a latee quanti' of oil was thus saved; that about nine o'clock next morning the switch: orew arrived and pulled the car to where it oould be unloaded; that thi oontents of the car were then gauged by the manager and unloaded; that ho oould not say how much oil was saved by tjie men with buckets. j

R. M. lynch, the general manager for plaintiff, and now conneote| with it, testified that Keshner the foreman notified him of the leak monday morning by telephone; that he at once notified defendant's I representative, (Mr. Comstock, who died since then; but# the witness not know it); that the latter askeS him to have the car unloaded as sc| as possible; that he telephoned the connecting oarrier on whose line plant is situated for a switch engine and orew to plaoe the car wherj it^be unloaded; that when he reaohed the plant the car was not at thel unloading plaoe, but about nine o'clock a switch engine arrived and p| the car where it oould be unloaded; that he thereupon at once guaged oontents and had them pumped into plaintiffs tanks; and the oar^remov

Por the defendant, three members of a switching crew of the con oarrier, testified that the oar was placed at the plant on Sunday moil that they called for it about four o'clock the same evening: that thj ir was then loaded• that they saw the leak, which was large and plainly Lsible, and called the attention of plaintiffs foreman thereto; that ley moved the car at once to where it could be unloaded, and then left; at they called in regular oourse about nine o'clock next morning, and und the oar unloaded, and removed it.

A clerk also ######### in the employ of the connecting carrier, stifled that he received no telephone call for an engine on the Monday rning; but his testimony is of no value, for he testified only "from 9 record", independently of whioh he had no recollection; and the :ord was not produced.

The defendant also offered to prove by this last witness that four iths after the occurence in question, the witness Keshner admitted to i that the leak had been discovered before noon on Sunday. It also 'ered to prove by smother witness that on three several occasions, fom . e and six months after the occurrence Keshner made the same admission him. But the trial judge exoluded this evidence.

1.

In addition to the faot that the trial judge, who saw and heard the nesses, did not accept the version given by those for the defendant, e are oertain points about their testimony which make it also impossible us to do so.

1. The first and third witnesses had, before testifying, refreshed |ir memories from records and made by themselves; one of them not even hining the original record, but relying upon a letter from the party bosed to have kept the record; the other "had to go to the record to pore positive."

2. The second witness, when asked whether any oil had been saved, lered, "I did see two barrels of oreosote oil alongside of the fenoe;" Ih, if it has any meaning, either renders superfluous, and therefore |kely, the giving of notice to Keshner, or corrobprates the latter* nony.

3. It is inconceivable that the car was at the unloading place its contents could have been unloaded in a moment, and that Keshner, la "home" tp provide for, should have been so reckless of holding his position as to let several hundred dollars worth of oil leak out right where his employer must perceive it the first thing, and see at once the gross stupidity or wanton indifferenoe of his hired man.

4. It is even more inconceivable that Lynch, supposedly oapable of holding a manager's position in a large business, should have retained for an hour, not to say fot three years, an wmployee as incompetent or unfaithful as defendant's witness would §####### make out Keshner to be.

11.

The trial judge erred technically in excluding the testimony as to alleged admissions made by Keshner after the ooourrenoe. These were doubtless admissible for the purpose for which they were offered, to wit, to impeaoh him as a witness by showing alleged contradictory statements.

But we will no more believe that Keshner would, wholly gratuitously, jeopardise his position on four different occasions than that he did so on only one occasion. Such testimony would therefore oarry no weight with us, and sinoe it would not change the result it woyld serve no purpose to remand the case in order to have it heard.

"A cause will not be remandad for the admission of evidence even though improperly exoluded, when the evidence is such that, even if admitted the result would not be changed." Miller vs lafontaine, 8 Court of Appeal 162. Rhea vs Thompson Motor Co, Bo. 7144 flately deolded).

111.

Defendant is clearly entitled to credit for the oil saved by means of the wash tub and buckets. As plaintiff can not fix the amount we must allow for the most that oould have been saved in the time when these were in use. The car was loaded late Sunday evening, say six o'clock, and was Monday unloaded late IHUtétíIfMti# morning: this was fifteen hours. The leak was discovered at six o'clock Monday morning? or three hours before it was unloaded. One fifth of the leakage must have oooured in that timSj and it is possible that this one fifth was saved. The judgment must therefore be reduced accordingly.

New Orleans, La, March 1918.

It if therefore ordered that the judgment appealed from be reduced from Í889.3T to |S03.5Q (five hundred and three 60/100 Dollars) and as thus amended the judgment la affirmed: plaintiff'to pay costs of this court and defendant tha costs of the oourt below.


source: Caselaw Access Project

author: •CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    SOUTHERN COFFEE MILLS VS DENNIS SHEEN TRANSFER
    NO. 7288
    CHARLES F. CLAIBORNE, JUDGE.
    April 1st. 1918.
   •CHARLES F. CLAIBORNE, JUDGE.

/This is a suit for the value of a mule. Plaintiff was the owner of the mule. Defendant, among other pursuits, conducted a pasturage business for hire; in other words, was an agister of cattle. Plaintiff placed his mule on defendant's pasture at the price of #3.00 per month. When plaintiff called for his mule, defendant failed to produce it. Hence this suit. Plaintiff claims #200.00 as the value of the mule.

The defendant excepted that the petition disclosed no cause of action on the ground that it failed to aver that the loss of- 01-injury of the mule was due to the want of care of the defendant.

The District Judge overruled the exception and correctly so. There was no allegation in the petition that the mule had been lost or injured. For all the plaintiff knew the mule might have been in the possession of defendant or of some one else safe and sound. It was for the defendant in their answer to give some legal reason why they did not return the mule. Answering, defendant averred that some time after the plaintiff had placed his mule on defendant's pasture, charbon broke out among the animals in the pasture; that as soon as the defendant became aware of this,he notified all the owners of all the animals in his pasture including plaintiff, requesting their removal; but that plaintiff negligently left his mule in the pasture, where it shortly after contracted charbon and died, without any fault of defendant.

There was judgment for plaintiff and defendant has appealed.

The question as to the degree of care an agister of cattle must exercise towards the animals in his custody and the extent of his liability for injury or loss, about which jurisconsults differ, does not arise in this case. But all will agree that the agister's duty is to return the animal to the owner; or, failing in this, to give some excuse recognized by law. The learned counsel for the defense have tacitly admitted this principle and have held out aa a shield against the demand herein the defense that the mule contracted charbon on the pasture and died.

The burden was upon the defendant to establish thi3 defense. Have they done so?

It would serve no useful purpose to reproduce here all the testimony upon which we rely to announce our conclusion that they have not done so.

There is no witness who testifies that he saw the plaintiff's mule afflicted with charbon or any other disease, or that he recognized its dead body.

The defense is based on presumptions exclusively, too weak to support a judgment in their favor.

Their theory is that charbon prevailed among the cattlle in their pasture; that seven animals died of it; that inasmuch as plaintiff's mule was not found among the living, ergo it must have been among the dead. If that was the only possible solution of the situation, there would be much force in the syllogism. But the defense and the evidence are that charbon is a death-dealing and contagious disease; that as soon as it was discovered on the pasture, the defendants caused all the seventeen owners of cattle to be notified, and that all the owners who had been notified, and the defendants themselves, removed their cattle^amounting to 47, the same day or thh next day. It might be possible that in this scramble some of the owners might have been more particular in securing an animal than in making sure that the animal secured was the one they owned.

Some weight may be attached to this possible action by the testimony of four witnesses, stablemen and drivers and horseshoers, who all swear most positively that they were well acquainted with plaintiffs mule and that they recognized it among the mules in defendant's stables. On the other hand two witnesses stablemen and drivers, and two defendants, swear with equal assurance that the mule pointed out by plaintiff’s witnesses was the property of the defendants for the /&st three yearsi^We do not refer to this episode, as defendants qualify it, with any Intention of determining the issue between these two sets of witnesses, but only to demonstrate the uncertainty of the defense that the mule claimed had died. 32A 251.

The manner In which cattle were delivered to those who called for them is thus described by the Keeper of the pasture^ when plaintiffs went for their mulei

A. "Well, I told them I didn't know his mules; to go back and see what was his own mules, to take them; I didn't know which was his mules."

There' is also the testimony of two witnesses to the effect that they were told by the Keeper that a previous Keeper had been in the habit of renting out mules; and the Keeper herself and the defendant corroborate this testimony.

One of the officers of the defendant company was asked:

ft. Have you any other Information as to what befame of the animal herein sued on, of your own knowledge?
To which he answered:
"I do not sir."
The Keeper of the pasture made the same answer.
The same witness was aksed:
Q. What became of Mr. Hoffman's mule?
A. Mr. Hoffman’8 mule died of charbon. ft. Did you see him?
A. I did not.
ft. How do you know he died of charbon?
A. Because he must have been in the back of the oasture that we.burned up and hauled out of there.
ft. Do you know personally . hether Hoffman's mule ever had charbon?
A. Well, I would be lying if I stated 1 did. Ko, I dont. Indeed it would have been difficult for him to testify that he knew plaintiff's mule was dead, since there is no evidence that he had ever seen the mule while it was alive, i.or is there any evidence that any b:-dy had told him that the mule was sick or had died. It was all an Inference and a surmise. The defendants did not at any time notify the plaintiffs that their ...ule was sick or dead. The presumption is not certain enough to entitle defendant to a judgment. Plaintiff testified that he paid for the mule $325.00 in 1911, and that it was in first class condition at the time it was sent to pasture. There is no testimony in conflict.

We consider it fair to assume that the mule was worth at least |200.00 at the time of this suit.

Judgment affirmed.

April 1st. 1918.


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    HENRY BOURGEOIS & AL VS LUTCHER & MOORE CYPRESS LUMBER CO.,
    NO. 7291
    CHARLES F. CLAIBORNE, JUDGE.
    April 8th. 1918.
   CHARLES P. CLAIBORNE, JUDGE.

The objeot of this suit is to have the defendant remove its railroad track from the lands plaintiffs allege they own.

The plaintiffs, fifteen in number, .allege that Edmond Bourgeois Sr. in the year 1876, purchased a certain tract of land in the Parish of St. James fully described in their petition} that he died in the year 1912 leaving petitioners as his only heirs} that the defendant, did, without right and as a mere trespasser and with full knowledge thereof, erect tracks for hauling lumber on a part of their said property, as appears by a survey annexed to the petition abd marked "B"; that the defendant has run its oars over said tracks continually for the last ten years and is still doing so, and has refused to pay ror the use of said land or to remove its tracks therefrom. Plaintiffs therefore claim $500.00 for rental value of said lands, $500.00 for the illegal trespass, for an injunction prohibiting the defendants from running its cars on said lands, and ordering the defendant to remove its tracks therefrom.

Defendant denied that it had erected tracks on plaintiff's lands and averred that its railroad tracks were erected where they now stood, more than twelve years ago to the knowledge of Edmond Bourgeois Sr. and his heirs, and that it had been in the actual possession of said right of way during all of said period; that it had erected said tracks under the belief that the lands xaut used were its property and it still believes so; that plaintiffs and their author stood by and permitted defendant to erect its tracks without objection and acquiesced in the same, and that they are estopped now from objecting in the event it be shown upon the trial that the traoks are erected upon their lands; that the lands upon which the tracks are erected are in the swamps and valueless, and ths compensation for their use should be only ndminal. The defendant also pleaded the prescription of one, two, three, L> five.^tem,ajsástawkve years.

There was judgment recognizing plaintiffs as owners of the lands described in their petition, enjoining the defendant running from entering said lands or XBxaxiñg its cars upon them, and condemning it to pay twenty-five dollars to plaintiffs as

In its reasons for judgment, the Court said; "But under the fourth paragraph of Article 508a.C.C. plaintiffs'*-are not entitled to demand the demolition of the railroad."

Prom this judgment the plaintiffs alone have appealed.

The defendant has neither appealed nor asked for an amendment of the judgment, but on the contrary havi asked that it be affirmed.

It will thu, be seen that there is no question of title involved here. The defendant does not contest plaintiffs' title, and it admits that its tracks are upon plaintiffs' lands.

The sole question involved is how much of defendant's tracks are upon plaintiffs' lands. To answer this question of fact two surveys and sketches have been made, one by Henry Landry, C.E. at the request of John E. Bourgeois, sometime in August 1914, and the other by D.P.Woods, C.E. signed by Prank T. Payne, dated December 14 1914 filed by the defendant and marked"D-A". According to the skefch of Henry Landry defendant's tracks cover, as alleged in plaintiff's petition, fifty-three one hundredths(55/100j acres; according to Payne's sketch, adopted by the Judge of the District Court "defendant's railroad track crosses a small corner of plaintiffs' land occupying about Eight one thounsandths(8/l000) of an acre." , or 336-9/10 square feet.

Examined as a witness Woods swears that his survey is taken from Government notes and that it is correct,

Landry, as a witness, is asked concerning his own survey, q. Please state which of the two. surveys is the correct one'i A. Mr.Payne's survey appears, from the way he’ has located his corners and checked up with the old grate bars on the eighty arpent line, to be-correct. Ás Í did.not find any of the >- corners, I could not say that my survey is correct, xx I signed the survey in question because 1 assumed that the north west corner at the old grate bar was correct. I did not allow Mr. Bourgeois, the plaintiff herein, to sue without giving him to understand that there-was a possible chance of that comer where the old grate bar is ( northwest corner of Section 81) as being the wrong eorner. I went over Mr.Payne's survey with Mr. Charles Prey, another engineer employed by Mr. Bourgeois, and X suppose he advised them of our deoision."

In a letter dated October 16th.1914 by H.E.Landry to Henry Bourgeois he writes that the acreage of the Lutoher aid Moore Railroad right of way is 53/100 acres.

In his testimony, he is asked to say whether that is correct. He says: "No. It should be 53/l000ds of an acre instead of 53/l00ds."

With the judge of the District Court we are bound to decide in favor of the correctness of the survey made by E.F.Woods.

The evidence was closed on November 19. On the same day, plaintiff«moved the Court to appoint a third engineer to survey the lands. The Court refused to open the case or postpone the trial for that purpose. We do not see that the Court abused its discretionigx

The defendant introduced in evidence a contract dated May 5 1906 signed by Edmond Bourgeois by which he sold to Leon Weil and others the timber upon 81 acres of land adjoining the swamp lands of Lutoher & Moore Co. giving them two years time to get it out. At the end of the contract are the ii — words: "Right of way-of R.R. accepted." This document was in. troduced for the object of showing « that the track had been ouilt with the consent and approval of Adam (Edmond) Bourgeois the author of plaintiffs.* Upon objection, the document was admitted on the question ofi damages only. To this ruling no objection was made. It is evident that upon the date of that contract the railroad track had already been constructed. It cannot therefore prove whether the track was originally constructed in good or bad faith. There is no- proof that any one of the other plaintiffs w»c aware that the tracks were laid upon the lands owned by them until the date of Landry's survey in August 1914. In view of the fact that the land occupied by defendant's tracks is very small in area, and of very little rental value, and lies in the swamps, and is not susceptible of being rented, we think that the judgment in favor of plaintiffs for twenty-five dollars has done justice to the plaintiffs.

The learned judge of the District Court found that the ¡pcCe*' defendant had acted in good faith and^_only in error in laying its tracks^and that therefore under ¿ 4 of Article 508 of'the Civil Code it could not be ordered to remove.its tracks. But assuming that Article 508 applies to the issues of this case, the Supreme Court has decided that a party in a position similar to the defendant was in constructive legal bad faith and was not entitled to the rights of a possessor in good faith. In Vaccaro v. Pignolo 130 La. 162 the Court decided that a party who takes possession of lands beyond the limits of his title is "As a matter of law a possessor in bad faith."

A plaintiff may require a possessor in bad faith to remove works and constructions he' may have put upon the land. 109 La. 638, 115 La.928; 131 La.662 (666); 33A.752.

It Is therefore ordered that the judgment herein appealed from be amended by decreeing that the defendant the LutcherMoore Cypress Lumber Company be ordered to remove its tracks from the property of plaintiffs described In the petition herein in so far as the said tracks appear to be constructed upon plaintiffs' lands by the survey made by E.P.Woods, C.E. dated December 14 191* signed by Frank T. Payne'-and -filed herein as document "D-A'y Said removal to be made within three months from the time this judgment becomes final; and that upon the failure of the defendant so to remove said tracks, that a writ issue from the District Court commanding the Sheriff so to do at the cost of the defendant.

It is further ordered that, as thus amended, the Judgment appealed from be affirmed, at the cost of the defendant in both courts.

April 8 1918


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    CONSERVATIVE HOMESTEAD ASSOCIATION VS JAS C. TOURNE & AL
    NO. 7296
    CHARLES P. CLAIBORNE, JUDGE.
    April 22nd. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

This is a consursus proceeding, arising from a building ntraot. It was filed July 26th. 1917,

The plaintiff alleged that it employed the defendant, Teffcme, to erect a building for the price of $4094.00; that TouJPne furnished the National Surety Company as bondsman for a like amount; that the following parties have recorded claims and privileges against petitioner and the.building, viz:

0. Murphy $ 333.27

Conservative Homestead Association $ 150.00

Andrew H, Luchman $ 12.50

Falvy Wilson Company, Ltd. $ 197.40

$ £55717

That the building has been erected and accepted since March 31st. 1917; that under the contract the Contractor and •tlje Surety Company owe the attorney's fees Incident to the enforcement of the contract, worth $50.00, and the costs of the same; that a clause .of said contract provided that the contract- or was to deliver the work before March 1st. 1917, and on his failure to do so the association was authorized to keep out of any sum due him $5.00 a day for each day the work should remain. incomplete; that the building was completed only on March Slst.^so that the contractor owes petitioner $150.00 liquidated damages; that the contractor boundlhimself to deliver the buildMffei free from-any recorded privileges. The Company prayed for: .aconoursus,' for citation of all persons Interested; for judgment against the Conti «¡tor and the Surety Company for $50.00 and |16.O,0Qf And that aU claims end privileges be cancelled.

The plaintiff made no admission of any indebtedness to the contractor,, nor did it deposit any amount of money on filing itapetltlony

The only parties cited were Cornelius Murphy and the Surety Company.

Murphy admitted all the allegations of the petition, and filed a detailed statement of his claim for labor and mater ialífurnished to the building substantially as follows:

Wages of four laborers from November 27th. to December 30th. 1916, sundry time $ 87.75

UL-

Various prices of lumber of various sizes $206.52

Rent of concrete mixer for 20 days t $2.00 $ 40.00

Making a total of $334.27

The Surety Company admitted -^he "contract and Its signature, but denied any liability.

As to the claim of Murphy it averred 1st. That he agreed to allow Tourne^free of charge^the services of four laborers on the concrete work in exchange for wiring to be done by Tourne; 2nd. That only 1800 feet of lumber was used by Tourne dn the building; 5rd. That it was agreed that not more than $1.50 a day should be charged for the use of the mixer.

It alleged-that the delay in delivering the building was due entirely to plaintiff's fault in ordering extra work. That it did not owe the claim of Buchman. That the claim of Falvy-Wilson was for material bought by Murphy for his own account and not included in the specifications .and contract.

That It was not liable for attorney's fees. It averred that plaintiff owed the last installment of $684.00 with legal interest from April 15th. 1917, which it failed to deposit.

Buchman admitted all the allegations of the petition.

He averred that he prepared the building contract and bond for the erection of the building; that his services therefor arc worth $8.00, and that he recorded the contract at a cost to him of $4.00, and recorded his claim therefor at an expense of $1.50; that under the contract Tourne was to pay for those expenses, and that the plaintiff and the defendant are equally liable to him^and that he has a privilege on the building for his claim.

On October 30th. 1917 the plaintiff deposited $684.00 in the depository of the Court.

On motion of plaintiff and under Act 52 of 1912 p 61 the Court appointed Meyer S. Dreifus, Attorney-at-law, special commissioner to report upon the law and the facts of the case.

The Commissioner recommended the following distribution of the fund.

1st. Each party to be reimbursed his costs.

2nd. Meyer S. Dreifus $ 150.00

3rd. Hon. J. A. Breaux $ 50.00

4th. Conservative Homestead Association $ 150.00

5th. Andrew M. Buchman $ 12.50

6th. Falvy-Wilson Co., Ltd. $ 37.50

7th. Cornelius Murphy # 40.50

Balance to defendant company.

There was judgment homologating the report of the Commissioner and the Company has appealed. In this Court Murphy has asked in increase of judgment to the amount prayed for by him.

We shall take up the claims in the order presented in the judgment.

2nd. Meyer S. Dreifus ‡ 150.00

Section 9 of the Act of 1912 provides^ "that the compensation to be allowed the special commissioner under this act for his services shall be fixed by the Court in its discretion having regard to all the circumstances thereof, and the compensation shall be charged upon ahd borne by the party oast, or the mass in the discretion of the Court."

AS we have shown the-.amount deposited was $684.00. According to the record the sittings were three in number before 11 and after 3:15 P. M., and we are informed by the argument, lasted each time two or three hours; nine witnesses were examined; their testimony covered 96 pages , the report of the pxgn commissioner is four pages long; the determination of the issues presented mainly questions of fact and no law was involved requiring much erudition or thought. Under the circumstances we think a fee of $75.00 Dollars is sufficient.

3rd. Honorable J. A. Breaux attorney for the plaintiff $50.00. It is conceded that if the fee is due at all, it is reasonable in amount. The plaintiff alleges in its petition that the Contractor and the Surety Company owe the fee to the attorney employed by itj and it prays for judgment against them. Hut it claims no privilege upon the fund. We are therefore relieved of the necessity of deciding whether it is a privilege upon the fund under the law. All we are called on to decide is whether- the Surety Company has bound itself to pay it under the contract.

Section 9 of the contract reads as follows: ”In the event of any controversy arising under this contract, either between the Association and the contractor, or between the Association and a furnisher of materials, sub-contractor, or other workmen, the foes of the attorr.ey-at-law who may he employed to represent the Association in said controversy shall be paid by the con.rect- or and shall constitute a charge against the contractor and the Surety."

This contract is signed by the National Surety Company and fixes its liability for the feeji claimed here.

4th. Conservative Homestead. Association $150.00

This sum is claimed for demurrage or delay in completing and delivering the building within the time specified in the contract.

The second paragraph of the third section of the contract reads as follows:

"It is agreed that should said contractor fail to finish the work at or before the time agreed upon, he shall pay to or- allow said corporation to keep out of any 3um due or- to become due in this contract, by way of liquidated damages, the sum of five dollars per diem, for each and every day thereafter the sail work shall remain incomplete."

Section three of the contract provided that the contractor should deliver the building completed on or before the first day of '-'arch, 1917. The building was delivered only on Varch 51st. Hence the claim for the penalty of five dollars a day for thirty days or one hundred and fifty dollars.

This delay was a passive violation of the contract. Article 1931 (1925) of the Civil Code provides: " A contract may be violated, either actiVely(by doing something inconsistent with the obligation it has proposed^ or^ passively^by not doing what was covenanted to be done-, or nit -doing it at the time, or in the manner stipulated, or implied from the nature of the contract." See also C.C. 1932 (1926)

The law and the jurisprudence have fixed the rule that when a contract has been violated by failure to perform within the time specified it is a passive violation and a default is an essential prerequisite to the recovery of future damages. C.C. 1912 (1906) 6 N. S. 229 (234); 5 La. 415; 14 La 80; 2A 306; 3A 444; 11A 300; 38A 781; 117La 1023; 119 La 795; 832; 835. C. N. 1146; 4 Aubry & Rau p 95; 24 Demol. $ 514— 11 Bandy 468

Plaintiff has not alleged the putting in default which was essential to permit its proof. 6 N. S. 230; 13La 229; 2 R 498- 10R 524- 38A 782.

But even if it has alleged it, it has not proved it.

But plaintiff answers that defendant cannot take advantage of the want of default, because he has not pleaded it, and that such a defense must he specially pleaded, in the case of Livingston vs Scully 38A 781 the Court ^after reviewing the jurisprudence on the question said: "The failure of the plaintiff to put defendant in defauit does not oblige inmoto specially deny that fact. It is the duty of the plaintiff- to allege and prove it, else he cannot recover." See also 2 Ct. App.215-389.

The plaintiff therefore is not. entitled to recover dam- . ages for delay.

5th. Andrew M. Buchman $ 12.50.

We cannot agree with the claimant in this case that, the law gives him a privilege upon the. contract price or upon .thé ■ building for the services rendered by him.

-Section 1 of Act 262 of 1916 .provides: .xxx and such reoorWakiani^af the building contract) shall create a lian and ;privi:l*g© on the building and. 'pumfo'o* other" work so ropalrod> constructed, erected, or constructed, in favor of tbs said undertaker, contractor, master-mechanic, engineer, sub-contract- or, workman, laborer, mechanic (upon the building) or furnisher of materials^as their interest may appear."

To the same effect is Article 3249 (3216) of the Civil Code. But nowhere do we see a privilege accorded in favor of the Notary for preparing the building contract or recording it. None of claimant’s labors have been applied to the building. Privileges can be claimed only for those debts to which it is expressly granted by law. C. C. 3185 (3152)

Neither has ’'Our attention been called to any clause in the contract imposing upon the surety or any one else the obligation of paying these costs. But if we assume that it was the duty of the contractor to pay for these costs^as stated in the specifications^ it does not follow that, on ^lihis default, they should be paid by the Surety/ any more than the Surety could be called on to pajh for the' insurance on the building as it -j£isr •wví»»*progressed, which -fcfc had obligated ttaelf' to take out at own expense under the 5th. clause of the contract. Suretyship must "be restrained within the limits intended by the contract." C. C. 3039 (3008)

6th. Falvy-Wilson & Co., $ 37.50

The only item included in the contract and furnished by this claimant is a mantel worth |37.40. The other items are for wall and electric light fixtures not provided for. They cannot be allowed.

7th. Cornelius Murphy $ 40.50

The item of $87.75 for wages of four laborers is not established with any degree of certainty. Murphy alone swears to it. None of the laborers who earned the wages have been examined as witnesses. This leaves the claim uncertain. 37A 492 (495) Besides, there is in the record a letter by Murphy to the contractor, Tourne, agreeing to furnish at his expense, a number of "laborers on the concrete work to offset the cost of extra wiring", and that,at his request,the concrete foundations were increased. f /

l&q Commissioner refected it and we ouuttti e»y tout he has «Sred.. Murphy was expected to buy the property from the Homestead and suggested and made alterations and Improvements ío the plans which were acoepted.

His claim tor lumber was reduced by the Commissioner from #806.52 tó $40,50 representing Í5Ó0 feet of ¿heating $25^ and 600 feet of framing lumber $15. Murphy alone testified as to the oorrectness of his claim. Tourne, the original contract- or had. defaulted and went out of the City and August Prank was employed by the Surety Company to complete the building. According to him there were only 600 feet of board measure sill's and 1600 feet of sheeting of Murphy's lumber in the building.

A foreman and Prank testify that Murphy told them to tillé any of 4hm lumber on the place to make the concrete molds, "they did so use them, and afterwards, the forms were broken Up ánd'the lumber .piled up and left on the place. Murphy admitd that the sum of $40.50 represents the value of the lumber used in the building. But he also claims #166.02 value of lumber used in making the concrete forms. The commissioner rejected this claim and we think correctly.

In regard to the concrete mixer the answer of the Surety Company is that It was agreed that only $1.50 a day mould be charged for it. The evidence shows that such is the rental .value of it. We shall therefore allow the claim, but reduce it to $30,00.

The claim of the Surety Company for interest «upon Kttfe amount of $684 due by the Homestead Company and not deposited by it at the time it filed this concursus proceeding xfr}et' be recognized.

In the. case of Freyhan vs. Berry 49 A. 305 the Court .‘decided that there was no concursus unless the Owner actually .■deposited in Court the amount admitted, to be due by him. See kltO Morris v. Cain 39 A.712 (733).

In Willey vs. St. Charles Hotel 52A.1581 (1601) the Court said that interest .was due upon the amount due from the ■d#te of the tender up to the date of the deposit. See also

This ruling cannot apply to the costs he.cause .all costs are paid by thé plaintiff in cohcursUs up to the date of his suit. He does not owe further costs unless judgment in rendered against him..

The plaintiff and the recorded privileged creditors having each recovered judgment in their favor are entitled to recover costs against the Surety Company. The plaintiff having lost its claim for demurrage, might have been charged with the costs incident thereto. But the defendant did not object to any testimony in support of that claim, as it might have done, On the [failure of the plaintiff to allege default. Having-allowed the 'testimony it must pay for it.

It is therefore ordered that the judgment appealed fromJbe affirmed in so far as it decrees that each party shall be his costs out of the fund deposited, and in so far as it is in favor of Hon. Joseph A, Breaux for $50,00, and in favor ‘Of Falvy-Wilson Co., Ltd. for $37.50.

It is further ordered that the item in favor of Meyer IS. Dreifus, Commissioner be reduced from $150.00 to $ j ’that the items in favor of the Conservative Homestead Association for $150.00 and in favor of Andrew M-. Buchman for $12.50 Sbe rejected and stricken out; that the item in favor of Cornelius KMuTphy be increased from $40.$0 to $70.50; thát thé plaintiff be condemned to pay, in addition to the sum of $684.00 vSafeposited by it, five per cent per annum interest on said sum ¡from July 26th. 1917 to October 30th. 1917.

And as thus amended that the judgment appealed from be affirmed.

The costs of this appeal to be paid by Meyer S. Dreifus, the Conservative Homestead Association, and Andrew M. Buchman, ih solido.


author: St. Paul, Judge.

text:
    NO 7297.
    MICHAEL J. KELLY VS ALBERT WORMAN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH-

St. Paul, Judge.

Shis is an action upon a promissory note for $700 executed by defendant on October 20th, 1914, and payable in six months. Plaintiff acquired it on January 7th, 1916 from the first holder, who had obtained it from defendant without consideration and by false pretenses.

She defense set up is the aforesaid defective title of the first-holder and a denial "that plaintiff is the holder and owner, for value* before before maturity, of said note." Bu$ this defense was broadened by the admission of a line of evidenoe intended to show that plalntlffaequired wider oiroumstanoes suffioiently unusual to warrant the belief that he had knowledge of some defect in his author’s title,

She alleged unusual oiroumstanoes are as follows;

1, That plaintiff took the note from a oomparttire stranger, and without ever before having seen defendant’s signature.

2, that the note was represented as having been-given for the purohase prlee of certain stock whieh upon Inquiry wouia have been found to be worthless.

3, That plaintiff did not pay a fair price for the note.

Sow, of course, any one of these oiroumstanoes alone would not suffice to invalidate plaintiffs title to the note; but together they make out suoh a prima facie case of knowledge on plaintiffs part, that the burden of proof is entirely upon him to rehut it; and this has not been done.

The evidenoe shows that plaintiff had never at any time seen defendants signature; that he had seen the party from whom he purchased the note only a few times before, and knew nothing whatever about him.

It further shows that the corporation whose stook was supposed to have been purchased, had ceased to do business more than two years before the date of the note; and the stook certificate,supposed to have been pledged with the note, shows on its face that the purported thansfer thereof to plaintiff took place only on Hovember 2nd, 1914, or nearly two# weeks after the note had been given. And again it shows that plaintiff trap informad that, th* ‡700 pote did not represent the .whole - alleged pripe of the stoek, but that another note for #200, part of •aid prioe, was hold by a ploae relative of his; yet he did not 'jtijlOP'iá enquire of that party how the whole security a ame to be ;ft.taohed’.to' the. |700 note; In faet he made no Inquiry Whatever into the/mattar.

New Orleans La, April 22 1918.

lastly plaintiff, olaims to have paid ‡600 for the note; but he .produces only a ebook for |1C0, and says that the other ‡400 were phid in.. (HMh* Of oourae as to this last statement he oannot be contra* dloted, sad the question resolves itself into this; whether me are ready to.-believe, bis unoorroborated and interested statement, that he paid sat:-this; sswunt,of .money under the oiroumstanoee above mentioned.

She.' trial judge evidently did not believe that plaintiff had paid far the. mote as mueh ae he claimed, or that plaintiff was wholly Without knowledge of the defeot in hie authors title; and after reading the. testimony end weighing all the oiroumstanoee we oannot reaoh the aonolusian that he erred. We must therefore affirm the ; judgment.

Judgment Affirmed.


text:
    LAMBERT BROS. VS PHILIP THROUNK
    NO. 7302
    CHARLES P. CLAIBORNE, JUDGE.
    April 22nd. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

This is a claim for the price of installing water and sewerage on defendant's property.

In April 1908 the defendant Throunk, purchased of one Woodruff two lots on Annunciation Street with the buildings thereon No. 6226 for the price e£d$500.00, with a right of redemption for five years. Woodruff continued to occupy the property as a residence with his wife. The improvements at the time of the sale, consisted of three rooms and a shed and stable to which Woodruff afterwards added a bathroom and a kitchen.

In 1915 the Board of Health ordered Woodruff to connect the improvements with the Water and Sewerage System. Woodruff made a contract with tbeeplalptiff Lambert for the necessary connections. Lambert put them in. They consisted of a toilet, a bath-tub, a kitchen sink and regulation stable trap drain^required by-'the Board of Health.

He charged $161.00, of which Woodruff paid $30.00,, leaving a balance due of $131.00 for which Woodruff gave his note for a like amount with 8$ interest and 20$ attorney’s fees, for which plaintiff asks judgment against defendant.

The defendant admits that he is the owner of the property, that Woodruff continued to reside on the property, but denies all the other allegations of the petition.

There was Judgment for plaintiff 'and defendant has appealed.

.The facts of the case are that Woodruff and Throunk were friends of 40 or 50 years standing. The latter was a man of some means; the former was not so fortunate. Woodruff had’ bought the above property through the homestead., .had put improvements on it, but had defaulted in the payment' of the price* Throunk' explains how the tranaac.tión“came’ ab'ouC* t^t:s'«ylftgfi

"Well, I'll tell you:
I met him (Woodruff) in Mr. Kronenberge'a office one day and he came to me and asked me, he says: "Mr. Throunk, will you let me have some money? "I said;"Well, yes, if it is not too much." I said: "how much do you want?" He says: I-want about $500.00; I owe the homestead $50.00 and I am out of work and I can't pay it, and I want to pay it." So I thought the matter over and I said; "Woodruff, I can't lend you any $500.00 on your property, but I'll tell you what I will do to help you out. I will bu^ the property from.you. You sell me the property outright for $500.00 and I will .let you redeem It. I will give you 1, 2, 3, 4, or 5 years, if you want, to redeem lt/and pay me 8% interest for my money when you redeem it; and all the money that I spend on it." He said: "That's all right", and I gave him the $500.00 and Mr. Krohenberger wrote up a title with that redemption clause on it."

The evidence shows .that the $500.00 was applied in the manner following:

Cost of certificates &e
Examination of title $ 10.30
Act of Sale and registry $ 26.00
State tax 1907 $ 2.15
City tax 1906 $ 7.70
City tax 1907 * 7.05
Union Homestead 8 73.44
Check to Woodruff $ 373.36
'$ 506,00

Woodruff gives his understanding of the transaction as follows:

"I owed $50.00 on it (the property)^and I had-to borrow $500.00, and get the $50,00 to a, put me out of the homestead, and get along with, so I borrowed $500.00 and bought a honse and wagon xxx I thought I was (the owner of the property)'; I think I am yet, I gave a mortgage on the place; I did'nt sell it. I did'nt have any earthly thought that I was selling it. They did'nt hxxa tell me that. I asked for a mortgage, I did'nt. ask for a sale."

Woodruff was allowed to remain in possession of the premises rent free and was still in possession at the time of this suit. He made whatever alterations or additions to them that he pleased. Throunk visited the premises only once from the time he 'purchased it and never speril any money upon it. He paid all, the taxes, but did not Insure. The improvements are worth about $700.00.

Lambert sued Woodruff for the bill and obtained a Judgment against him. It was only some time after that- he dis-coveredthat Throunk was the owner and then brought this suit against him. The conduct of defendant Justified Woodruff in believing that he was authorized to administer that property in the interests of himself and of the owner.

The installation of sewerage was not only an -act Of wise administration, but was a compulsory duty imposed by the law concerning which there was no option and which could not be avoided. Woodruff had not Intended to-impose the burden Of its cost upon Throunk, but had assumed it himself by paying a portion, and giving his note for the balance.

In the aspect that this work was required by law, it differentiates this case- from the line of authorities quoted ¿r<Uj by the defendant which^tnat "the lessee, to recover for repairs he has made, must show that xxx they were such as the lessor was bound to make, xxx owners of houses would soon be ruined if' tenants xx could make repairs as their fancy or caprice might dictate." 1 H.D. 799 No. 10-4R 376. The owner was- bound to make this work, nor was it an object of fancy on the part of Woodruff.

But even if controlled- by the spirit of these decisions, a distinction must be drawn between those repairs and Improvements which become a part of the building and cannot be separated from it, and which the owner is unavoidably compelled to retain, and those which form no part of the building or which may be (Jot^tched from it.

When the owner retains the former he may not be liable for their value, because it is not in his power to. separate them and to restore them. But as to the latter, he may restore them and ^release himslef from liability. But if he does not restore them, but retains them^he must pay for them. So an evicted possessor in bad faith cannot recover for improvements inseparable from the soli, such as ditches, wells &c. //®

The owner is not bound to pay fbr other separable improvements; but if he retains them he must pay for them. 123La 24.

.Neither is the lessor bound to pay for the additions which the lessee has put to the thing let; but if he retains them, he must pay for them. C. C. 2726 (2697).

These general principles are embodied in the Articles 1816 (1810) and 1965 (1960) of the Civil Code.

Art 1816: "Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value &c &c."

Art 1965: "The equity intended by this rule is founded in the xxx moral maxim Of the law that no one ought to enrich himself at the expense of another &c Sec."

Conceding that Woodruff was originally without authority to make the contract with Lambert so as to bind Throunk, yet Throunk must be held to have ratified it. As soon as he was informed of this claim against him, it was not enough for him to repudiate it. He should have notified Lambert at once,22A 496\(; 24A 462^and offered to restore to Lambeth such of the articles as were susceptible of restoration. This he did not .do. We are informed during the argument that Woodruff has surrendered possession of the property to Throuhk.

Throunk could not keep those articles, use them, and yet refuse to pay for them. By keeping them, he has ratified Woodruff's contract. Under the circumstances of this case ratification should be liberally construed 7 N.S. 145.

A principal cannot deny the right of an cgnsfc agent to issue a note for the price of an article and refuse to pay it, and yet have and possess the article. Slocomb vs Cage 22A 165; See also 2 C.J. 493;496;501 _

Throunk had a right to elect within a reasonable time whether he would repudiate the contract made bynWoodruff and restore the articles furnished by Lambert, or whether he would adopt it by retaining the articles. He has elected to keep the articles and he must pay for them. His ratification of part of the contract binds him for the whole. 2A 275;26A 26; 46A 315 (320) 105 La 768.

But we do not think that the defendant can be condemned to pay the interest nor the attorney's fees stipulated on Woodruff's note. He never agreed to this nor ratified it, nor was he benefited by it.

It is therefore ordered that the judgment of the District Court be affirmed in so far as it condemns the defendant to pay to the plaintiff the sum of One Hundred and thirty-one dollars with five per cent per annum interest from August 1st. 1915 till paid with privilege on the property Ho. 6226 Annunciation Street, and that in all other respects said judgment be reversed and set aside.

It is further ordered that the defendant pay the costs of the District Court, and that, the plaintiff pay the costs of appeal.

April 22nd. 1918.


text:
    LA. BUILDING & CONTRACTING CO., VS MR. & MRS. ADRIAN HAVA
    NO. 7303.
    CHARLES F. CLAIBORNE, JUDGE.
    May 6th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

'This is a suit’against husband, and. wife to recover against them, in solido,- the value of labor and materials furhished by-plaintiff in-erecting a-building ana making repairs upon the property of the wife under a contract with the husband.

The detens'e Is the oontraot. was made with the husband ■alone and that the building was erected without the consent, of t.hn wife.as owner.

the; plaintiff alleged that it made a verbal agreement with Adrian ;,H*va ,and his wife Ernestine Chavigny to do certain repairs -and''-alterations.'-to the property No. 1459 Annunciation Street, owned in common by both defendants, for the actual price of tha work and a commission, upon' the price thereof; that in accordance with said oontraot it furnished' labor and materials to.the valúe of $1657.89^on which a commission of eleven per cent or $171.36 ■ was due .to him; that he has received $1156.14 in part payment, -Reaving:a balance due to- him-of $573.11 for which he claims judgment.In solido against both defendants with builder's privilege, on the property.

The defendant Adrian Hava filed no defense. A default -was-entered against him.

' Mrs. Hava filed a general denial. She specially averred • that the property -No..1459 was ..her paraphernal property in Which Hr. Hava h*d no Interest; and she specially denied having .made the agreement alleged in the petition, or that plaintiff had.a privilege on her property; and she averred that if her husband had made any.agreement with the plaintiff that she could not--be made liable for- the same.

In a supplemental answer she averred that plaintiff had . maliciously recorded, an affidavit to create a. privilege on her property to ttflAWi nc nna uwo gubAbic^wj i'gnowu wi "^avu ***» claimed $500.00 in damages.

/* / The District Judge rejected plaintiff's demand against ” both, defendants. His Judgment in favor of Mr. Hava was evidently an oversight.

His reason? for judgment were as follows:

plaintiff to erect a three story brick building on the rear end of the property which was the separate property of the wife and in which she resided. There is'serious-doubt in my mind whether this building was erected with the consent of the wife; but there is no doubt, for the sole use. and benefit of the husband .and for his purposes; He incurred the débt and now awaits a judgment whereby his wife’s interest .may be divested-by saje or otherwise. "It appears that the defendant'(Mr. Hava) engaged the
The wife could not have made herself liable for his debts by any prooéss surreptitiously by borrowing the money after swearing that it was -not for the usé of the husband. This, she certainly has not done, and I know -that no law .which-permits her private estate to be .held liable without authorization by the Court and a false statement by her to the Judge authorizing either a mortgage or the .creation of a lien. Things cannot be done indirectly when the obligation must arise from tisa. following the forms at the very least. The plaintiff may be entitled to a lien and privilege on the building; but nob On the ground belonging to the wife of his debtor. Suit dismissed1'.

It is thus evident that there were three' reasons upon which the Judge rested his conclusions: First, a suspicion that the defendant husband Hava, incurred this debt with a view of shifting the burden of paying it upon his wife, and - eventually of bringing on against- her a judgment which she would not be able to pay and by which her property would be sold and her interest therein divested. He evidently had in his mind the suit of Altringer vs Hava & wife. 11 Ct. App. 229, in which a creditor of Dr. Hava for $132.32 seized the same property No. 1459 Con-, stance Street as his property when the same District Judge and this Court decided that Mrs. Hava was the owner of the property. Be that as it may the plaintiff must not be made the viotim of any proceedings to which he was not-a party, «¿d there is neither allegation!) nor proof that he was in collusion with the Doctor to defraud his wife.

Second, that the building was erected "for. the sole use and benefit of the husband and for his purposes".

VTe' do not think that the principle evoked and contained in Article 2398.(2412) of the Civil. Code applies here. It reads as follows:

"The wife whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband nor conjointly with him, for debts contracted by him before or during the marriage."

This article has been interpreted to apply to cases where the debt inured to the benefit of the husband and not^Uie wife. /- It cannot be said that improvements upon the separate property of the wife did not inure to her benefit, even though the improvements were erected for the benefit of the husband or of the family. Thus a wife, owner of a lot in her own right, would be bound to pay for a house built upon it for a residence for herself and husband, or to rent for the benefit of the community. In that case the immediate benefit would be to the wife anu only the indirect benefit would injure to the husband or the community.

.The law upon this subject is contained in the following decisions.

In Patterson vs Frazer & wife 8A 512 the facts were as follows: Mrs. Frazer owned a plantation; her husband cultivated it; he procured money-advances from plaintiffs for the purchase of building materials which were used in erecting a sugar-house and other permanent improvements upon the plantation of the wife; the correspondence, purchase^.and shipments were all with and for the husband; the plaintiffs contracted with him-alone. The Court said:

"In Dickerman vs Reagan 2A 440 this Court decided that "the separate property of a married woman is liable for debts contracted during marriage for her individual use, or for the improvement of her separate property, or for marriage charges, whlfth she is bound by law to bear, though the debt was created while her paraphernal property «as under the administration of her husband and during the existence of the community of acquets and .gains". eA-A married woman cannot, by surrend^ng to her husband the partial or entire administration of her paraphernal property exonerate herself from liability for debts incurred for her individual use, or for the-purpose of rendering that property productive/^

in Dailey vs Pierson & wife 6A 125 this Court held the . same doctrine» We still .'.adhere to these opinions."

Judgment was accordingly rendered against the wife.

In the Succession of Penny 14A 194 the. casé is- thus stated by the court!

"Knapp furnished a sugar-mill, saw-mill and steam engine and Bowman & Gair erected the buildings to o.ontain the same.This work was dene f“. the request of Albert G. Penny, and during the existence of the community between himself -and the deoeased Sarah Ann Penny, but upon a tract of land which was the separate prop-erty of Mrs, Penny, ni The administrators of Mrs, Penny's Succession resist the payment of these claims on the ground that they are debts of the community. The oppoaers maintained that Mrs, Penny's estate is liable, because her separate property was enhanced In value by the sugar-mill and saw-mill erected upon the same» x x X
^ But the qases of Dlckerman vs Reagan 2A 440 D&iley vs ■pearson 5a 125 and Patterson vs Frazer 8A 512 have gone further and are understood to establish the doctrine that the wife is liable for all debts incurred for the improvement of her separate estate, advances made for the payment of such debts and supplies of necessaries for a plantation which is the paraphernal property of the wifej Whether the wife retained in her own hands the administration of her paraphernal estate or entrusted it to her husband according to these latter authorities the appellants Knapp and Bowman A# Gair are entitled to recover of Mrs, penny's estate," Affirmed in 61A 1069 (1075) Also 28A 898,

It was decided in Jordan vs Anderson 89A 749 that a brick building erected upon a lot of ground belonging to the wife is an improvement which Inures to her benefit,

It must be noticed that in the above cases, it does not appear that either Mrs.'Frazer or Mrs. Penlck resided upon the plantation upon which the Improvements were erected^or that they were aware that .the Improvemei. » were going up, or that they consented to them. The cases were decided upon the fact that 'the plantations belonged to the wives and were administrated by their husband^and the'presumption that the wives consented to the improvements as they were going up, and that they kepttihem and were benefited by them. The decisions might have bedn in favor of the wives had it been established that the wives had objected to the buildingsprior to and during their construction. It has been held that one who intrudes his services upon another against his will and in the face of his protest cannot recover, although his services have been benefioial to that other. Pirón v3 Bach 10A 13 (15)-26A 504, Milligan vs Kenny 34A 50.

This case therefore turns upon the third point in the District'Judge’s mind^whether Mrs. Hava was aware that her husband had contracted for the erection of the building, and whether by her silence she acquiesoed In the erection of it, or on the contrary, whether she was unwilling to have the building erected and so expressed herself to the plaintiff and ordered him to desist.

It is admitted that the defendants, husband and wife, both lived upon,the premises Ho. 1459 Annunciation Street, prior to and during the time the plaintiff was putting up the building^ and that the wife was aware from start to finish that the building was going up.'We think that the evidence establishes that plaintiff contracted with defendant Doctor Hava! alone.

Mrs. Hava testified that in the place occupied by the new building there was a new two story frame building erected some two' years before which she. did not want touched; that she forbade Gazin, plaintiff's manager/to put up anything^.that her husband .wanted the frame building torn down so that'hé might erect a brick building for his own .work; that Gazin would not charge him anything, as the Doctor was his physician, treatingGazin;'.that she objected, because .the frame building,was- ne.w. and» the new building would "take the sun out of the yard and it would take money Out too"; that she tried to put Gazin and the workmen out of the yard and they gave her some impertinent answer; that both Dr. Hava and Mr. Gazin knew that she was opposed to putting up the building; that Dr. Hava left her about October 1915 and went to live in Waveland; she had gone to live with her people about two years before.

It would have been in the power of Mrs. Hava to have made her testimony more certain and reliable, had she written to Gazin or called in witnesses to hear her protests and corroborate her ^ In some other manner. We'think under the circumstances that the burden of proof was upon her. if she can avoid liability by her single testimony that she protested, then indeed is the and plaintiff ¿/any other contractor under like circumstances, at the mercy of the wife. And yet it Is the experience of us all that, in most cases, it is ,the husband living with his wife in her property who generally makes the contracts for repairs and improvements to it. The presence and silence of the wife are presumed to ratify the husband's acts; and If she objects, the burden of proof is upon her to establish that she communicated her objections to the contractor.

Mr. Ga*in testifies that he made the contract originally with Dr. Hava; there was, no price fixed, it was to be determined upon the amount of the work done and eleveh per cent for his

commission; the work done amounted to $ 1557.89 and his commission to $ 171.56 Making a total of $ 1729.25 Upon which Dr. Hava paid him # 1156.13 Leaving a balance due of $ 573.11

He says the work on the building was begun dn May 3rd.

1913 and completed on August 1st. 1913; the plastering and gallery of the front house were also repaired and old wooden front steps replaced by granite steps at a cost of about $135.00 included in the charge of $1557.89; Mrs. Hava was present during the early discussions concerning the laying off of the building and es^^lishlng the line of division from the neighbor; also whether the building should be two or three stories high; during the process of the work she made suggestions and gave orders; it was under her instructions that two fire-places were huilt in the upper stories, as the Doctor needed only one for his work; she gave directions concerning the steps and the plastering/ the frame house which was demolished was an old carriage house with rotten studs and weather boards, no sllls^nor floors,and leaning over on the neighbor's line about two feet; most of the old lumber wag cut up and burned by Mrs. Hava; Mrs. Hava said sne was glad the old shack was coming down; she never told him, nor any of his laborers not to come in the yard, nor ordered him off, and never had any disagreement with IwSTduring the progress of the work; he owed Dr. Hava nothing for medical treatment.

Dr. Hava substantially corroborates the testimony of Gazin. He says he administered the property from the date of purchase, paid the taxes upon it, when they were paid, and also the insurance; when the property was first bought it was rented and he collected the rents; his wife agreed to the erection of the building; she had the ground surveyed.

The weight of evidence is clearly with the plaintiff, Hor is there any reason to suspect any collusion between'Dr, Hava and Gazin.

5be building and repairs were completed since August 1913; they cost $1557,89 of which the Decotr paid $1158,14, the last payment being made in August 1915; the plaintiff recorded his claim only in February 1917 and filed this suit only in January 1916, If this building had been erected by Poeotr Hava with a view ef leading up to a judgment and execution against his wife, it seems that he would not have made such a large payments himself nor waited so long to consummate his scheme,

Mrs, Hava protests that a Judgment against her would make her a victim,

This is only possible, but not probable, as, by paying $575,11 she will get a building that -cost $1657,89, But a Judgment against Gazin would surely make a victim of him, Between the two, we have come to the conclusion that the law and the evidence incline the scales Of Justice towards the plaintiff and that it is entitled to b judgment in solido against both defendants. 29A 751 (753)

But plaintiff is not entitled to a privilege, because the work he undertook exceeded in value $500.00, and his contract was not reduced to writing. Article 2775 (2746) of the Civil Code provides: "No agreement or undertaking for work exceeding $500.00, which has not been reduced to writing, and registered with the recorder of mortgages, shall enjoy the privilege above granted."

This Article has been interpreted, and applied by our Supreme Court from 1822 to 1913 in the sens6 that the "writing" is of the "very essence" of the privilege.

See 11 M 437; 6 N. S. 169;473; 2 La.. 03. s La 94j 15Ls-384; 16 La. 292; 10R 158; 2A 174; 175; 549; 4A 122; 5A 334; 432; 6A 63; 64; 480; 481; 10A 429;, ISA 183; 227; 228; 521; 15A 51; 16A 305; 3Q6; 19A 446; 20A 485;. 24A 610; 28A 290; 305; 33A 973; 48A 760; 133 La. 697.

But the fact that the plaintiff recorded an attested account of his claim against the defendants does not entitle them to damages against the plaintiff in the absence of jxroof' that they suffered any. 16A 151; 21A 185; 51A 1023; 107 La 587.

It is-therefore ordered that the judgment appealed from be reversed and set aside and it is now ordered that there be judgment in favor of the plaintiff the Louisiana Building and Contracting Company and against the defendants Ernestine Chavigny wife of Adrian Hava and Adrian Hava, in solido, for the sum of Five Hundred and seventy-three ll/lOO Dollars with five per cent per annum interest from September 4th. 1914 till paid and all costs of suit.

May 6th. 1918.

Wenr»lvf).fl.Qe.,nn damageo a a nene» aro-chowo.


author: SI. Paul Judge,

text:
    NO/ 7308
    STANDARD BREWING COMPANY VS STOCK & CO. LIMITED.
    STATE OF LOUISIANA, COURT OF APPEAL PARISH OF ORLEANS.
   ararían.

SI. Paul Judge,

Plaintiff sues for the prioe of a heer oooler .sold to defendant,

She sale formed part of an agreement by which plaintiff loaned defendant; $2600, and furnished the beer oooler, on oondition that defendant should buy beer exclusively of plaintiff. That oondition being observed the loan might be repaid at the rate of $100 per month, .without interest, and the prioe of the oooler withheld until the expiration of the 25#$ ’ months..Should defendant wease to buy beer of plaintiff, both the loan and the prioe of the oooler were to heoome exigible at once.

Defendant oeaaed buying beer of plaintiff, and henoe this suit; to whioh defendant filed exceptions of no oauae of action and of prematurity.

1$

Ihe xeoeption of no cause of action is based upon grounds heretofore urged when plaintiff sued for the return of the loan, and whioh we disposed on in the matter Bo. 7010 of our docket. We find no reason to change the conclusions then reaohed. Ihe xeoeption is not well founded.

11.

. fuus Ihe plea of^maturity is based upon an alleged compromise entered into between defendant and plaintiff's attorney, under whioh plaintiff received $100 in oash and 28 notes of $85 eaoh, payable weekly, and containing a olause by whioh, "It is understood and agreed that if the above described notes are punctually paid, the Brewing Company will not, during the time they are running, demand payment of any other obligations due by it; but Stook & oo promise, if business permits to take up one or more of the JlOC notes outstanding.#

O* &A*¡rs In supplemental petition plaintiff sets up that this last agreement had reference Solely to past due indebtedness, to wit, a past due indebtedness of $800 on opem account (now settled in cash and by notes) and sundry past due instalments of the $2600 loan; of all of whioh said attorney had knowledge, and as to whioh he had authority to aot. But that said attorney neither knew of, nor had any authority with reference to, that olause of the original oontraot whioh manured other obligations of defendant upon the lattera' failure to buy beer of plaintiff:

New Orleans, La, May 1918

This allegation was borne out by the uncontradioted testimony of the attorney and of another representative of plaintiff.

But all the evidenoe was objeoted to on the ground that it tended to vary the terms of the written compromise as above quoted, viz, that as long as the series of |2B notes was running and the notes being punctually paid, plaintiff wpuld not demand payment of "any of the other obligations held by it."

The objection is not well founded* Under the Civil Code a compromise must be reduced to writing (C. C. 3071), but since a compromise, even though winded in general terms, uovers only those matters about which the parties had differences (C. C. 3073), it follows that parol evidenoe S is necessarily admisible to show that those matters were, if the aot of compromise be silent or vague on that score.

On the merits there is no defense other than the aforesaid exceptions set forth in another form.

The judgment appealed from is correct. .

Judgment Affirmed,


text:
    SUCCESSION OF W. D. WATLINGTON
    NO. 7310
    CHARLES F. CLAIBORNE, JUDGE.
    May 20th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

The question in this case is whether the widow's and minor's homestead under Article 3252 (3219) of the Civil Code primes the chattel mortgage creditor under Act 151 of 1916.

Taking advantage of this Act of 1916 the deceased^ W. D. Watllngton, on June 30th. 1917^borrowed from the Employees Company $300.00 payable ninety days after date with eight per cent interest, and, to secure the reimbursement of this awn, granted a mortgage on his automobile.

Watllngton died on July 25th. 1917, and his Succession was opened.

His widow was appointed administratrix. He left nothing but movables, including the automobile mortgaged to the property left by him was ordered sold to pay debts, and was sold. The automobile sold for $400.00; the entire proceeds of sale were $714.00. The administratrix filed an account. The privileged claims consisted of costs of court,‘costs of sale, expenses of last lllness^and attorney's fees. The widow was placed as a privileged creditor for the balance, $516.98, as widow in necessitous circumstances. The Employee's Company was placed upon the account as an ordinary creditor, with no prospect of being paid any part of its claim and as a "memorandum only". It opposed th'account to the extent of asserting its superior rank as a creditor over the widow upon the proceeds of sale of the automobile and asked to he paid the full amount of its loan, say $300.00, by preference to the widow.

There was judgment in favor of the Employee's Company and the widow has appealed.

Act 151 of 1916 p 371 is entitled: An Act, to grant the right to mortgage the following property: x x x all kinds of vehicles, and the equipment, accessories, and parts thereunto belonging x x x; to provide for the regulation, effect and enforcement of such right of mortgage, x x x"

Section 4 "Be it further enacted, etc: That every mortgage shall be a lien on the property mortgaged from the time same is recorded, which recordation shall be notice to all parties of the existence of such mortgage^ ahd said lien shall be superior in rank to any privilege or lien arising subsequently thereto".

Section 11. Be it further enacted, etc: "That all laws or parts of laws in conflict herewith are hereby repealed &o".

Í 7 of Article 3252 (3219) of the Civil Code, prior to the amendment of 1917^was an exact reproduction of ftct 255 of 1852 p 171 and readías follows:

"Whenever the widow or minor children of a deceased person shall be left in necessitous circumstances and not possess in their own right property to the amount of one thousand dollars, the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of the deceased husband or father, a sum which added to the amount of ikK property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, and which amount shall be paid in preference to all other debts, except those for the. vendor's privilege and expenses incurred in selling the property. &c &e".

There can be no doubt that the letter of the li chattel mortgage act confers a right which shall be superior in rank to any privilege or lien arising subsequently thereto."

There can be no doubt either, that the widow's homestead arose "subsequently thereto", that is, only at the death of the nusband. It did not arise prior thereto; for if the Employee's Company had foreclosed, prior to the death of the husband, there would have been no widow, hence no widow's homestead. It arose at the moment of the husband.** death. 10A 451; 13A 352; 18A 39; 24A 491; 27A 99; 29A 703; 30A 670; 32A 18, 459; 34A 820; 1068.

In order to grant a superiority to the widow's homestead it would be necessary for the Court to add a few words to the Act of 1916, so as to make it confer a right "superior in rank to any privilege or lien arising subsequently thereto except the widow’s homestead." But the legislator has made no such exception, neither can we.

But the learned counsel for the widow argues that the legislator evidently meant to give the chattel mortgage priority only over subsequent privileges arising from conventional obligations and not over privileges created by law exclusively. But to sustain his contention we would have to interpose this word "conventional" which does not exist in the law. The power of Courts to add words or phrases to the -law must be exercised sparingly and only to carry out the evident intention of the law. We do not believe that this law justifies the exercise of this power.

If the ¡legislature had in mind "conventional" privileges only, it would have said so; if it intended to except the widow's homestead it would have mentioned it. We have no more right to except the widow's homestead, than we would have to except any other privilege created by law and arising subsequent to the chattel mortgage act.

If it had been the intention of the Legislature to make the privilege created by the mortgage superior only to subsequent "conventional" privileges, it would have been unnecessary to so state, as it would have been a natural consequence. When the act stated in so many words, that the mortgage should be superior to any subsequently arising privilege we must- presume that the legislators meant to give the word some force.

But we believe that the legislature did intend to do exactly what it said, that is, to give chattel mortgages "superiority in rank over any privilege or lien arising subsequently thereto". The chattel mortgage act was passed with a-view of "Enabling certain persona of small means, owning movable property of comparatively little value to borrow money and to seoure the reimbursement of it by a mortgage upon their movable property. The only security was the movable property..If that did not satisfy the debt, the creditor had no other recourse. It was therefore necessary to make the mortgage as perfect a security as possible. The first security was a privilege "superior in rank to any privilege arising subsequently thereto", section 5 of the act prohibited the mortgagor from moving the property from the parish where the mortgage was given without the written consent of the mortgagee; and it was unlawful for a resident of any parish t° purohase movables from a non-resident without an affidavit that there was nothing due on the property. Section B branded a violation of the provisions of the act as a misdemeanor and punished the same by a fine not exceeding ftsoo.oo and Imprisonment not exceeding twelve months, or both, at the discretion of the court. It was also made an offense for any one to injure, destroy, or conceal any mortgaged property, or to execute a release or satisfaction of the mortgage without being the owner of it, or to give a mortgage without disclosing the existence of a previous mortgage, It is Impossible to conceive that the legislature had intended to give only a second place to a mortgage which it had otherwise surrounded by such pabsl sanctions, (po construe the act in such a manner as to make the privilege conferred by it take a rank inferior to privileges created by law alone suoh as the widow’s homestead would deprive the act of its .efficacy as ah absolute security and deter snail loans based upon movables of small value, and thus, in a .measure, destroy one of the objects .of the law,

fhe homestead law of 1852 must be strictly construed, 11A 67; 29A 65; 31A 36,

But it is contended On behalf of the widow that the Article 3362 of the Civil Code has been amended by Act 17■ of 1917 adopted July 25th. 1917 and promulgated July 30th, 1917; and that by tnls amendment U t widow's homestead "shall be paid in preference to all other debt3, except those secured by the vendor's privilege, conventional mortgages, and expenses incurred in selling the property;, provided that any such conventional mortgage or mortgages shall represent money actually loaned for not-less than one year on the property described therein at not exceeding six per cent per annum for interest, discount, and charges", and that inasmuch as the Employee's Company's loan was payable from with per cent per annum interest, it was not superior to the widow's homestead.

This amendatory law cannot have a retroactive effect so as to control a mortgage granted June 30th. 1917 prior to its passage. C. C. 8. It has been decided that the original homestead act of 1852 did not affect mortgages executed prior to its passage. 10A 509; 11A 674; 12A 538, 553; 20A 244. I

It is therefore ordered that the judgment appealed from be affirmed.

May 20th. 1918.


author: CHARLES E» CLAIBORNE, JUDGE.

text:
    HORTON AND MOSELEY VS PRESCOTT JORDAN & AL
    NO. 7311
    CHARLES F. CLAIBORNE, JUDGE.
    April 8th. 1918.
   CHARLES E» CLAIBORNE, JUDGE.

On motion to Dismiss.

A motion is made to dismiss the appeal herein on nd of want of jurisdiction of th^s Court, v ,

rPlaintiffs alleged that Xhey were the holders¿of five promissory notes drawn by the defendants dated December 10th. 1912 for the following respective amounts:

2nd. One for $400.00, subject to a credit of $37.50 due January 10th. 1916

$ 362.60

3rd. Another for $400.00 subject to a credit of $37,50 due January loth. 1916

| 362.60

4th, A third for $750,00 subject to a credit of $37.50 due January 10th, 1917

| 716,50

Amount of^lhstailments due:

|1437,60

5th* A fourth for $750.00 subject to a credit Of $37,50 due January 10th, 1918

$ 712,50

6th, A fifth for #800,00 subject to a credit of $87.50 due January 10th, 1919

$ 712,60

Amount Of the whole of the debt in capital

12862,50

That all of said notes are secured by mortgage and vendor's.privilege upon the lands described in said act according to an Act of Sale by the Plaquemines Land Oo,, to defendants herein passed before a Notary,

The plaintiff prayed for Executory Process and "that the hereinabove described property be seised and sold, x x x X for the payment of the whole of the debt represented by the five notes hereinabove described, together with Interest aocrued on the whole, and ten per cent on the total amount Of principal and interest of all of said five notes, as attorney's fees, the purchase price to be paid in the following manner, to-wit:-"

Then follow terms of cash and credit corresponding with the matured and unmatuij^ed notes intended to conform to the terms prescribed by Article 686 of the Code of Practice.

The order for Executory Process was signed as prayed for.

From this order the defendants have appealed to this Court.

The plaintiffs and appellees have moved this Court to dismiss this appeal upon the ground "that the amount or matter, in controversy herein, exclusive of the interest, is in excess of $2000.00, is not within the appellate jurisdiction of this Honorable Court and is within the appellate jurisdiction of the Supreme Court of this State; and that this appeal should be dismissed, or should be transferred to the Supreme Court of this State in the manner provided by law at the cost of the appellant."

The appellees advance the theory that the amount in dispute is not only the sum of the three matured notes, say $1437.50, but is in reality the total sum of all the five notes, both matured and unmatured, say $2862.50, for the payment ofi which the property was ordered to be sold.

In support of that proposition they cite La Land Co., vs Murf 139 La 808.

The issue presented in that case was not the same as the one discussed here. However, in that case the Executory Process issued to enforce payment of a note of $3472.47 being one of two other concurrent notes, the three amounting to $10417.41.

jp , There was no doubt therefore that the Supreme Court ^procedded further and allowed attorney’s fee3, not only upon the note sued on of $3472.47, but upon the total sum of the three notes amounting to $10417.41.

The Court held that the action was for the whole amount of the three notes, and the whole property mortgaged u was sold upon the terms of cash for such part of the debt as was due, and, for the balance of the debt that was not due, upon terms of credit corresponding to the credit granted to the debtor iii the original contract. Citing Grünewald vs Commercial Many 49A 489.

In the course of its opinion the Court said on p 818: "the injunction, whether properly or improperly, restrained the execution of a ,writ issued to enforce payment of a claim exceeding ¡JjilOpOO.OO". And ón page 820Í

"Plaintiff in executory process, being the holder of all the notes, matured and unmatured, and having sued on all of them &c".

The cases cited by the Appellants are not in conflict with the Loúsiana Land Co., case. In Bank vs Muller 52A 553 the Court held that the only amount in dispute was the sum of $1800.00 in the Sheriff's hands over which the intérvénor claimed a privilege^and that therefore the Supreme Court had no jurisdiction.

The case of Wolf vs WeAtherlll 22A 25 merely holds that interest accrued upon the debt at the time of the appeal cannot be added to the capital to give the Supreme Court jurisdiction. Citing among other cases Klady vs McGuire 1R25-26..

V/e interpret the decision ih the La Land Company as meaning that the amount involved in thé demand herein is beyond the limit of our jurisdiction.

In view of the request of the appellees and appellant and by Virtue of Act 19 of 1912 page 25 we hereby transfer this case to the Supreme Court of this State.


text:
    No. 7313.
    State, ex rel, Mrs. Santa Coltraro. Vs City of New Orleans.
    State of Louisiana. Court of Appeal Parish of Orleans.
   Opinion.

St. Paul, Judge.

This is an application for a Mandamus to compel defendant to receive the City taxes on certain real estate which the relator does not dispute^ but which the City refuses to accept unless relator pay at the same time a certain paving claim assessed against the same prop! erty which relator does dispute.

The City answers that mandamus will not lie, contending that it is not the plain ministerial duty of the city to seperate the two taxes and accept the one without the other, but on the contrary the city must collect the two at the same time; and for this it relies on Section A9, par. C. of Act 159 of 1912, as amended by Act fi9 of 1916, reading as follows;

"Upon completion of said work the Commissioner of Pnblio Property shall issue a bill against each property owner for his portion of the cost of said work, which shall be due in cash within ten days after presentation of said bill. Should any bill not be paid within said delay x x x x the Commissioner of Public finances shall add the amount of said bill, plus interest at four and one half per cent per annum, to of the next tax bill^said delinquent and property# owner."

Sranting that this section means exactly what defendant claims, j to wit, that paving claims unless paid at once, shall become collectible and shall be collected at the same time and in the same manner as other city taxes, the same however is equally true of taxes levied upon the same property but for different purposes, the only difference being that in the former case the tax is specific and in the latter ad valorem and hence whatever law 1b applicable in the one case is equally applioab in the other. ' ■

The city must therefore.do in the one case exactly what it must do in the other; that is to say, its plain ministerial duty is the same in both cases.

New Orleans La. May 1918.

But it is the plain ministerial duty of the city to receive that Part of a tax which is undisputed and not insist upon the rest if the tax payer disputes it.

For the collection of municipal taxes is governed in all respects by the laws applicable to the collection of State taxes (Act n9 of 1882 p. 167).

And the laws governing the collection of State taxes expressly provide that, "Ho injunction restraining the collection of any tax x x x shall issue except to enjoin the collection of that portion of the tax which may be in contest; and no injunction shall issue against that portion in contest until tha tax payer shall have produced and filed the tax collectors receipt showing that the tax payer has paid that portion of the tax which is not in contest, and: which the tax payer acknowledges to be due". Act 170 of 1898, p. 374.

Unless therefore we assume that the law meant to deny tb# the property owner the right to contest any claim, or alleged claim, for paving which the Commissioner of Finance may think proper to add to his tax bill (which of oourse is altogether inadmissible) we are bound to conclude that the oity must receive,, and receipt for, the unoontested tax, thus leaving to the tax payer his remedy for stopping the collection of that which is disputed.

The Judgment appealed from is thefefiore affirmed.

Judgment Affirmed.


text:
    LEO H. RAPIER VS SUBURBAN BUILDING AND LOAN ASSN.
    NO. 7314
    CHARLES P. CLAIBORNE, JUDGE
    June 4th, 1918.
   CHARLES F. CLAIBORNE, JUDGE.

This is a euit to recover the price of erecting a building. The building was destroyed by a hurricane. The question presented is who is to bear the loss, the contractor

or the owner; and that depends upon the determination of the fact whether the building was delivered and accepted before its destruction by the hurricane.

The plaintiff, Rapier, alleged that in 1915 he made a contract to erect a residence for the defendant for the price of $3,178.00 payable in five equal installments, that he completely erected said building and on April 1st. 1916 ¡delivered the same to the defendant who accepted the same on said date, and took possession thereof; that.defendant has refused to pay hi,m the last three installments amounting to $1906.80, for which plaintiff now claims judgment.

The defendant answered that the building was never completed, was never.tendered^and was never accepted/ but that on the contrary, defendant, refused to accept the building until it was completed; it admitted that the last three payments amounting to $1906.80 remained unpaid because the plaintiff Rapier, had stopped work before anyone of them became due; that subsequently Rapier's bondsman, the United States Fidelity A Guaranty Co., employed Fromherc & Dpennan to complete the work; that according to his contract Rapier had bound himself to complete and deliver the building on November 9th, 1915 under a penalty of three dollars a day as damages; that on April 7th. 1916 the building, incomplete and unaccepted, was damaged by a storm; that the Surety Company refused to assume the responsibility for the damage cuased by the storm and to repair it and otherwise complete the building; that the completion of said building would cost $1500.00 for which Rapier and his bondsman are liable; that in addition to said $1500.00, Rapier and his Surety must pay demurrage from November 9th. 1915 to the completion of the building; that the Surety Company is a necessary party^and it called it in warranty. The defendant prayed for judgment in its favor rejecting plaintiff's demand; and that it be authorized to retain the sum of $1906.80 to pay 'the cost of rebuilding and completing the building, and' to satisfy pro tanto the claim for demurrage.

The Surety Company answered that the building had been completed and delivered before the storm of April 7th.yit denied that it had undertaken to rebuild it and alleged that defendant had permitted Fromher? and Brennan to complete the building and had thus discharged the Surety Company.

The defendant filed a supplemental answer in which it averred that at an expense of $1376.00 it had completed the building which had been delivered 6n June 23rd. 1916, or 225 days after the date agreed on by Rapier, equal to a demurrage of $675.00 for which it claimed judgment.

There was Judgment in favor of plaintiff for $1906.80 subject to a credit of $426.00 for demurrage^ and dismissing the call in warranty.

The defendant has appealed. The plaintiff has not appealed from the judgment condemning him to pay $426.00 demurrage, so that question's not before us.

The building contract with plaintiff stipulates: 5th. payment of $635.60^thirty days after the said building and works are all completed and accepted by said party of the first part, and the acceptance filed in the Mortgage Office. "Provided that in each case of said payments, a certificate shall bw obtained from said expert (Henry W. Rolfs) x x x to the effect that the work done is in accordance with the drawings and specifications, and that the payments are properly due",

Section V provides: "It being understood that the building shall be at the risk of the said party of the second part (Rapier) until accepted by said party of the first part (Building Association) as a whole".

The law upon the subject is as follows:

C. C. 2758 (2729) "When the undertaker furnishes the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not receiving it, though duly-notified to do so".

As argued by counsel, the burden is upon the plaintiff to prove that the building was completed and delivered. But the "completion" means a "substantial completion". In Dugue vs Levy 114 La. 21 the Supreme Court said: "A substantial performance the contraot is all that the law requires, and the employer will not be permitted to avail payment because the strict letter of the -agreement has not been, carried out.Slight deviations, or technical, unimportant, or inadvertent omissions or defects will not bar recovery". Quoting 29A A. & E. Enc. Law (1st. Ed) p 891. See also 30A & E. Enc. Law (2nd. Ed) p. 1221.

"Small and unimportant portions of the work remaining undone are not sufficient to render it not substantially performed so as to preclude the right of a builder to a payment whioh is not a final payment, if the work can readily be done thereafter and it does not appear that it would not be done if the payment was made*. 9 C. J. p 759 $ 78-79 note C, See also Hinrichs vs Edmond Realty Co. No. 7254 Ct. App.

Joseph Fromhers testified that he thought he had completed the building some two months before the cyclone that destroyed, it, but that Mr. Qondron for whom the Building Association was putting up the house, furnished him a list of items he wanted done, and he finished them; that Mr. Rolfs and MT. Qondron came together to the work, and Mr. Rolfs said there were some little items to add and he finished those items, and finally about ten days before the cyclone, he met Mr. Rolfs and Mp. Qondron at the building; they asked for nothing more and he turned the key km of the front door of the house to them; all the other keys were in the locks; he heard nothing i»re of them; he could not say whether he gave the key to Mr. Rolfs or to Mr. Gondron but he gave it to one or the other; Mr. ■ Gondron «as killed some time after that,' he never got any writing from Mr. Rolfs accepting the building; he never asked for any, nor for any certificate for payment because he understood the whole matter was in the hands of the attorneys.

Mr. C. W. Cryer represented the United States Fidelity & Guaranty Company; he says that Mr. suthon, the attorney for the defendant company the day before the cyclone of April 7th. 1916, told him he was going to have a meeting in his office in the morning to take over the building, to accept it, to close it out, to have a final settlement of the job; and asked him to be there; he went to Mr. Suthon's office in the morning^ and there met Mr. Ray, attorney for the plaintiff; Mr. Rolfs, defendant's expert, walked in with a newspaper in his hand, which gave the information that the house had been damaged by the,. eyc~ ‘ ourned.

Mr. Ray testifies that aa day/Sr two before the cyclone Mr. Suthon informed him that the Building Company was ready to settle the Rapier matter, and aksed him to meet him at his . office; on several occasions prior thereto Mr. Suthon had made claims for demurrage; he expected the whole matter to be settled then and there including demurrage and to receive payment for the two payments due; he understood that the building was completed and had been accepted; he went to the meeting when Hr. Rolfs produced the paper announcing the damage to the building by the storm; and Mr. Suthon asked to defer the matter to some later date.

On the other hand Henry W. Rolfs, who is the building inspector for the defendant Company^testifies that it is his custom, whenever he Is notified by the builder that be has completed the job and he finds that everything la finished, to issue a certificate for the fourth payment which means an acceptance; he waB not called on to issue any certificate, and never issued a certificate of acceptance. Being asked: "Did Mr. Fromherz ever complete the building? "he answered:" Ho sir with the exception of a few things about to' complete it". He says further; "I went out there and met Mr. Fromher*, and he was, he wanted, at least, to get rid of the Job, that is how he'spoke. I said: "I am awfully glad to hear you sáy that, because I am very tired of coming out here, and up to now everything is acceptable, with the exception of a few little things he had to do".

They were a little outlet on the gallery, a common screen to tack on the porch and a little wire which had to be removed, a little paint work in the kitchen to do, a guarantee for the roof which he had stripped twice, and for the window sills which were not exactly constructed according to plans but which were acceptable with a guarantee; Fromherz never tendered him the keys; does not know whether they were tendered to any one else; he never accepted the building from Mr. Fromherz; Qendron was present at the time of the last interview; he was not notified'to attend any meeting at the office of Mr. Suthon just before the storm; he heard about the meeting later on; he did not attend the meeting; the last time he was at the meeting was a few days before the storm; Hr. Fromherz's foreman gave Mr. Gendron a key for the back door, so that they could get in.

0. M. Lind is Secretary of the defendant company; the evidence of acceptance of a building by the company is the issuance of a certificate for’the fourth payment by the expert representing the ’association showing that the building is completed; the company knew that Mr. Rapier's affairs were in the hand3 of his attorneys and the company had referred these matters to its attorney, Mr. Suthon.

Hugh S. Suthon, attorney for defendant, gave bis testimony. It is practically the same as that of Hr. Ray. The only difference between them, as tersely stated by Mr. Suthon, is that Mr, Ray was under the impression that the meeting was for the purpose of getting his money, while Mr. Suthon did not go that far, but admitted that the object of the meeting was to define and establish if possible the relative positions antf rights of all parties to this tangled situation with a vipw of effecting a final settlement. Mr. Suthon says: "1 was aware and everybody knew at the time that the building was all but complete, that there was very little in dispute and that the only thing to be done was to have that final meeting and smooth out the last difficulties and finally accept the build- // ing.

We have come to the conclusion,with the District Judge y that this testimonyfas a whole(establishes that the building was "substantially" completed on the occasion of the last meeting of Fromherz, Rolfs, and Gandron; that Fromherz arranged this meeting for the purpose of delivering the building as complete: that he tendered it,and that Rolfs indicated only ' trifling omissions and imperfections In the work, the cost of. which was amply covered by the prospective fifth payment due only thirty days thereafter, and the existence of which did not justify the refusal to' accept the building. In the langunge of the Code, the proprietor was in default for not raceiving the work, though duly notified to do so. If we believe \iat Rolfs did not, in so many words, accept the work he did not state that he refused to accept it unless the defects* pointed out by him were remedied.

Fromherz did not ask for a certificate perhaps because he knew that the matter was in the hands of attorneys and that there were demurrage counter-claims to be adjusted by them.

It seems that these claims were really the only matters left undone, which the meeting called by Mr. Suthon was Intend ed finally to settle. The building having been tendered became at the risk of the owner, for the reason that the tender was refused without just cause.

But the learned Counsel for the defendant argues that ii n the acceptance to be binding on the company must be in writing We do not so read any language in the building contract from which we have quoted above.' The "acceptance" mentioned in the contract is to fix the date of the maturity of the fifth payment, and is the one which the statute requires the owner to file in the mortgage office to establish an initial period of prescription against recording privileges upon his property

The "certificate" of the expert is for the purpose of obtaining the several payments.

But assuming that the contract does require a written acceptance of the work, an owner cannot arbitrarily refuse to accept a.completed Job, and thus hold off the contractor at his will, any more than he could indefinitely postpone the date of the fifth payment by refusing to record the'acceptance* required by the contract and the law.

Judgment affirmed

June 4th. 1918.