author: Dinkelspiel; J,

text:
    NO. 8346
    COURT OF APPEAL PARISH OF ORLEANS
    ROBERT E. LEE versus TOYE BROS. AUTO & TAXICAB COMPANY INC.

   Dinkelspiel; J,

Plaintiff institutes this suit against the defendant, olaiming the sum of $1900.00, damages, asserting that on January 33nd, 1821, he employed defendant oompany, whioh is in the business of hiring taxicabs for public conveyance and contracted with them to beoome a passenger in one of their oonveyanoes, going from Melpomene & Howard Streets to St. Peter & Fillmore Streets and that whilst being driven at a high rate of speed, the chauffeur ran into an obstruction, a tree, which oould have been avoided hao. he been careful instead of negligent and in oonse-quence of ss,id accident and the jolt whioh he received when thrown from hie seat, the glass frame work whioh separates the chau:'feur1 s sed: from the body of the taxicab, the car jolted and his head end neck received a deep gash on the right side of the face and head, the face and neck being severely cut by the glass and as a result he bears scars on his face and neck and will like-these ly bear/soars for life. He further alleges that he was attended to by his physician who bandaged his faoe and head; that he suffered severe pains for more than five weeks and that he still bears scars Sxsk as the result of outs received from said aooi-dent and that the accident was due to the negligence, want of oare and caution of the chauffeur who was the employee of defendant and that plaintiff in no wise contributed to said accident. Wherefore he prays for judgment.

To this petition there was filed an exception of no cause of action and subsequently the answer which substantially claims, admitting the accident, that the bruises received were not such calculated to do greet bodily harm or cause serious injury; that plaintiff was not so seriously injured that it would him to cause/kiisxksxa lose his position as fireman or in any wise affect him personan, save and except that possibly the scars on his neck might remain for a while and then become as other parts of his body, also claiming that plaintiff was intoxioated and that the glass was cracked, but otherwise there was no serious injury.

It has oewtassiaC¡jac¡ic been established beyond doubt that the allegations of plaintiff's petition, through his testimony and that of his sister-in-law and other members of his family, together with his physician, that the injuries caused by the accident as above stated oould have been avoided by the defendant's employee by oareful driving; that it was at the time of the evening, just before six o'clock, when the stump in the rosd oould have been seen and should have been skhí seen, bút recklessly and carelessly as we think, and this testimony justifies us in this opinion, this chauffeur drove plaintiff in a manner to cause the injuries claimed by him and whilst we believe do not /oonsBaxaec that possibly they were serious, as serious as to oause injury for life, yet they were amply illustrated by plaintiff's appearance in several months after this trial in the Court aquo when he still gs.ve evidence of what his testimony has proven.

There is no justification whatever on the part of the defendant company nor do we believe that plaintiff was drunk or in any wise affected on this particular oooassion; he denies it end so do members of his family and the only witness who pretends to anything of this sort in is the chauffeur himself.

The Civil Code provides, Art. 3315."Every aot whatever of man that causes damage to another, obligates him by 'whose fault it happens to repair it. "

A oareful examination of this record convinces us that plaintiff has told the plain, unvarnished truth of the unfortuante accident and the injuries that he received; his testimony is complete, full and to our minds entirely satisfactory; besides this he was before the District Judge who saw and heard him, together with the witnesses on both sides of the case end under the circumstances his opinion in this matter, being entirely a question of fact, having the witnesses before him, seeing them, hearing them testify, has been held ever to be an important faotor in the decision of oases,

. ' - and under these circumstances, appreciating these facts and that his Honor the Judge of the Lower Court heard and saw the witnesses and rendered an opinion in this case which in our opinion does justice to the parties, we wee no reason to disturb it.

For the reasons assigned it is ordered, adjudged and deoreed, that the judgment of the Court aquo in this case be and it is hereby affirmed, with oosts against defendants in both Courts.

-JUDGMENT AFFIRMED-


source: Caselaw Access Project

license: Public Domain

text:
    NO. 8348
    COURT OF APPEAL PARISH OF ORLEANS
    F. RIVERS RICHARDSON versus Mrs. MARY FLUKER BRADFORD.

   Dinkelspiel; J,

Plaintiff institutes this suit on the following agreement:

"Hew Orleans, La. August 21, 1918.
Mr. F. Rivers Rich' rdson, Oity.
Dear Sir:
You ore hereby accorded, the exclusive au* thoritv to sell the following described lands, owned by me, located in Ascension Perish, this stote, at the price of twenty five doliere per acre on terms
of cash or part c?sh ?nd the balance. to be properly secured. 3tax& Your compensation for mating tnie sale shell be five per cent of the selling price, payable when transfer is ms.de."

Then follows a description of the land. The contract specifies that some is to remain in force for one year from its dste end plaintiff is to receive a commission of five per cent of the selling price of said property.

It s further averred that the defendant is the widow in community of the late James L. Bradford, and-also his universal- legates and under the contract in question, as suoh universal legatee and widow in community, she is indebted unto plaintiff- for services rendered in the full sum of §1991.76, 'with legal interest onereon.

To this petition there was filed sn exception of no o«use or night of action, end subsequently an enswer, reserving the benefit of the exception and further averring: "Further answering, your respondent says that after the. appointment by the late James L. Bradford, of the petitioner herein, as his agent, for the sale of the property set forth in exhibit "A", and before the sale was effeoted by petitioner herein, and before the date of the offer of Bozell Mcffil-lismis, August 15th, 1919, the said James L. Bradford deported this life, as appears by the suooession proceedings of James L. Bradford, Ho. 135923 of the Docket of this Court; thet upon tiis death of the soid James L, Bradford, the agency aocordsd to the plaintiff herein as cessed, 'nd expired and plaintiff had no right or equity under the aforesaid authorization m-. rked exhibit "A", and that the 3«id iuthcrizi-tion to said Richerdson was that of agency. 9cftfee^xa3iax^tdixSs*x»iW»y And further averring thet the plaintiff hexsin in submitting the offer of Hr. Rozell McWilliams, eubraitted an offer whioh vne net bona fide and in good feith, that same was not in accord with the verms f the authorization whioh James L. Bradford hod given to plaintiff end th?.t said Rozell McWilliams wos not ready, willing or able to carry out the’offer as’ set out in v/ritten document dated August 15th, 1919, end addressed to your respondent, That at the time of making said offer, petitioner v/es nxoiad nsither the agent of the late James L. Bradford or of his'estate -or of respondent."

T/herefore defendant prsyed th=t plaintiff's suit be dismissed at his cost.

We are therefore presented with the question, whether or not under the laws of this state the deith of Jame? L. Br-d-ford did or did not terminate this contr* ct.

The Civil Cods, Article 3016. Brokers. The broke-r or intermediary is he who is employed, to negcti.'te a matter between two parties and who for that res son is considered is the mends.-tory of both."

Civil Code Art. 3985. Mandate. A mandate, pro ourotion, or letter of attorney is an aot by whioh one p.-rty gives power to ¿mother to transfer for him and in his ñaue, on® of several affairs.

"The true definition of ? brck;r seems to bs thet he is an agent employed to make bargains between other persons in matters of trsde, commerce, or navigation, for s- compensation, commonly op-lled brokerage. Or a broker is one who mokes s- h'-r-ge.in for smother *nd receives a oommissicn for so doing. (Story on Agency, par. 38. ffiLso see Mesohea on Agemoy, -j^r. 74).

Civil Code, Art. 3037 provides: The procuration expires:

5y the d--;th, seclusion, interdiction or failure of the agent or principal."

It h-e been held in the e- rliest cases reported, Copell-r, curator vs. Dalton, 4th Mrrtin's Reports, JT. S., P. 133, jixgsxia# the court goes on to say:

It is manifest that the power of ths --gent had ce>- sed by the de> th of hie constituent long before the Bale s u,' de to the appellant, and that this occurrence was known to the attorney in fact; the defendant could, therefore obtain no title through him in th t oapaoity as representing Whiting, lr vrh.ua resided the legel title.

In the case of Holmes V3. Murdoch, 135 Ann. 916, the Court there decides:

The de'th of the defendant put an end to the agenoy and precluded a r^oov^ry by the plaintiff for unearned salary.

Citing authorities.

In the owse of Auguste Tete vs. D. Lanaux, Executor, 45Jrh Ann. 1343 the same doctrine "that the dea-th of the defendant put an end to the agenoy and precluded a reoovKty by pl•■■intlff for unearned sal?ry,"w?s maintained.

In the ossa of Emily L. Shiff, Tytrix vs. the Succession of Alexander Lesseps, to be found in the 23nd Ann. 185, the syllabus reads:

"A oontraot between a planter and a factor or commission merchant, whereby the latter binds himself to furnish the necessary supplies for the working of the plantation, not to exceed a specified amount, and to receive and sell the products of the place for the benefit of the planter, le a oontraot of agenoy on the part of the merchant, which terminates et the deeth of the agent. By the death of the agent, in such a oase, the planter is absolved from all obligations to (continue the contract, and the heirs of the agent are not bound -on the oontraot. Such sn agreement is. personal, and not heritable.-"

It h"3 been Reid: "A cower' of attorney coupled with > n intir-:-t la nut revoked by the d-,'th or b-nkruptcy cf che princi.;'1.'' J: oqu-. s vs. Ría creditors, 23 Ann. 'JCo.

The difference between a ol;rk ; nd f. broker i3 that the former hire hie services exclusively to che p’.rscn while the l? tt?r is empl- yod to make b- rg- 'n-? snd ecntrocts Tilth oth'-r percvns in mott-re of trr-io, com-erce '.ni nrVig- ticn,

For s-'rvices of the fcrra-r there Is s .fiks -',sT:-ted salary, while for the?:- of the l'-tt-r - compans-tlon oo. aonly called broker--.ce is 'llo"sd. Story's Agency, Seo, 3S.

Und-r the 'uthcritie-:. >s quoted --nd under the .rticl.s cf th'-.- Ci-'il Code, we ere s-.-tisfied thet the agency of plaintiff ceased at the d?»th of his principal, and while there are many contriry opinions based on -different gropasitions cf both l<->« and facts, we believe the better principals of law stated in this opinion must prevail, and ths-t the exception of no cause or right of action should be ne.ints.ined.

For the re-Sons assigned, it is ordered, adjudged nd decreed that the judgment cf the Court ‘-quo be and the sane is annul led, xx ¿-nd reve -sed snd there now be judgment in favor of the defendant, dismissing plaintiffs suit at his cost, in both courts.

-Judgment reversed,, and suit dismissed-


author: By WILLIAM A. BELL, JUDGE.

text:
    MRS. MARIE ROSE GREGORY VS ALPHONSE HAINEBACK
    NO. 8349
    COURT OF APPEAR PARISH OF ORLEANS
    WILLIAM A, BELL, JUDGE.
    APRIL 2, 1923

   By WILLIAM A. BELL, JUDGE.

This is a suit Brought By plaintiff as lessor and ov/ner of premises Ho. 1005 Annunciation Street. She petition sets forth a claim for two months rent,for damages arising from the failure of plaintiff to rent her premises after same had Been vacated By the defendant for the reason of the filthy and delapidated condition in which the defendant is alleged to have left the premises. There is also an additional claim for estimated repairs necessary to place the Building in proper condition and to restore it to the condition in which it is alleged to have Been at the time plaintiff first leased the property to defendant, l'he prayer of the petition is for the recovery of the total sum of {457.50, But plaintiff's counsel in argument and Brief Before this court admits to cBrtain corrections in the amount originally claimed and now sets forth said amount to Be as folldns:

"Two months of the unexpired second year of the lease, January and ReBruary, of 1019, at_ {20.00 per month, amounting to, ------- -{40.00
"Rrom March 1, 1919, to December 1,
1919, nine months of the second year of the lease, at {20.00 per month, --------- -100.00
"Total cost of estimated repairs - - - -177.50
"Total of appellant's claim, ----- {397.50."

The original contract of lease out of which all this controversy has arisen is filed in the record and reads as follows:

"Rev/ Orleans, Louisiana,, Maroh 7, 1917. "Mrs. 'A. R. Gregory hereby leases to A. Haine-Back, of iiew Orleans, the premises ITo, 1003 and So. 1005 Armuneiation Street of this City of Hew Orleans, for use as a Bag place, for the term of one year, from March Í, 1917, to March 1, 1918, at a monthly rental of twenty (#20) dollars, payable in advance, with tfcc-privilege granted to Mr. MaineBach By lessor to renew this lease at the sa.ie j'ental and conditions for another year.
"Mr. haineBaok is not to out a hatchway in the Building, and partition on Bottom floor, if removed, to Be rut Back By Mr. Kair.oBack at his expense at the end of the lease.
"Thus signed this 7th day of Karon, 1917. "(signed) A. RaineBack.
"(¡Signed) Mrs. U.R. Gregory. "(Signed) 3. Oileie."

Defendant answers this suit with exceptions of no cause of action, whioh were overruled by the trial court, and answering on the merits denies that there was any renewal of the original lease for another year, denies that he violated in any way the original contract of lease as to the removal of any partition or other property forming part of the leased premises, and finally denies that because of the defendant's removing from the premises there was any loss to the plaintiff in opportunity of re-leasing the property in question, or that the condition of the said property a3 left by the defendant when vacatingjWas such as to render the same uninhabitable or undesirable for leasing purposes. Defendant admits leasing the premises under the original contraot, but avers that the renewal for a second year was never made either verbally or in writing, but that there was-a verbal understanding between the plaintiff and defendant for a leasing of the premises at the same rental by the month only, and that under this verbal lease from month to month,he occupied said premises until the end or nearly the end of the month of December, 1918. He sets up a claim against the plaintiff under a so-called set off,conditional upon the finding by the trial court of any liability by him to the plaintiff. This latter claim may not be considered by us, the same having been disregarded by the trial court and no appeal having been tahen by defendant from the judgment below.

There was judgment for defendant dismissing plaintiff’s suit at her costs, from which judgment plaintiff appeals.

There are only issues of fact in this case, as we appreciate the evidence found in the record, and our conclusions as to these faots are as follows:

He find that the written contract of lease, as above quoted, and whioh contained a stipulation for renewal of the lease for another year, was not oarried out by either party to the original contract. There is no doubt that defendant remained on the premises after the expiration of the first term of the lease, and the evidence is positive on the part of the defendant and his agent that defendant renewed the lease verbally and only from month to month by conversation had between the plaintiff and defendant's agent, Hr. Sanoheze. This fact is not contradicted by the plaintiff and when ashed if the defendant had ever renewed the lease for a year under the provisions of the original written oontraot, replied in the following uncertain manner:

"ft.-Row in this oontraot you had given the privilege of renewal for one year?
"A.-Yes, sir.
"Q.-Was there any agreement between you two as to a change concerning that-
"A.-No, sir, he moved orit, and the year was not up; March had not come yet to renew — to make a new lease."

It is plain that the plaintiff's testimony as above quoted is erroneous, for it is shown by all other testimony in the reoord that the defendant did not vacate the premises until December, 1918, while in fact the original lease expired in Maroh of 1918. On this point we are satisfied with the testimony of both the defendant and his agent, Mr. Sanoheze, that the lease was not renewed between the parties by the year, but was verbally carried on on a basis of a month-t#-month verbal lease. We further find that the defendant made, extensive ohanges in the premises by erecting a roof over the entire back yard reaching from the ground to the second story of the building and that this was done shortly after moving in under the original lease and with the knowledge and approval of the plaintiff. It is a faot, as shown in plaintiff's petition, that the wall or partition in the building itself was demolished by the defendant during the term of the written lease, but it subsequently .appears that defendant offered, to restore the wooden partition and the brick foundation thereto, but that plaintiff stated to him that he need not do this, and that this understanding was had between the parties shortly after defendant had vacated the premises in December of 1918. It is further shown that at this time defendant returned the keys to the plaintiff; that plaintiff's agent a few days afterwards, in January of 1919, put rent signs on the building, and that because of defendant's agreement to remove some trash which had accumulated in the building, the said keys were returned to defendant for this purpose, the trash promptly removed and the keys left by him with a certain party designated by plaintiff's agent. There is no evidenoe whatsoever that defendant endeavored to exercise any right of occupancy over the building after leaving it in December, 1918. It is also true that while the defendant changed the physical conditions of the premises rented by him under the original lease, inasmuch as he erected the shed aforementioned, that he also subsequently offered to demolish the shed as he had done concerning the partition in the building, and that plaintiff advised defendant's agent to let the shed remain as it was. All of this testimony, given on behalf of the defendant, has not been contradicted either by the plaintiff herself or her real estate agent, acting on her behalf and testifying in this case as a witness for the plaintiff. Considerable testimony has been taken concerning the damages which plaintiff suffered due to the operation of defendant's business in the rented premises, but we find that she was fully advised of the nature of defendant's business, which was dealing in second-hand burlap bags, a business more or less attended with dirt and dust, not of a nature, however, to cause permanent injury to the building. iVe find that every effort was made by the defendant to clean up the premises after vacating it, and that no complaint was made to him after making this effort, nor was any demand made upon him to restore the partition or remove the shed or in any other manner to change the conditions of the building as found when first occupied by defendant. There is slight evidence given by the plaintiff's agent that she was unable to rent the bulling from January, 1919, to October, 1919, because of the condition in which the building was left by the outgoing tenant, the defendant herein, tfhen questioned as to the parties who applied or might have applied to plaintiff or her agent as prospective tenants, the said agent vías nnahle to give any names or to designate any specific occasions under which the plaintiff had lost opportunity to re-rent her building, ',/e have carefully reviewed the entire record in this case and are unable to conclude that the findings of the trial judge are in'any manner erroneous.

II IS, IHEHEi’OHB, ORDERED, ADJUDGED AMD DECREED that the judgment herein appealed from be and the same is hereby affirmed, at plaintiff's costs in both oourts.

JUDGTSM! AEFIRIiSD.

AI-RID 2, 1923.


author: diaries F.Claiborne,Judge.

text:
    Cicero A. Ramsay vs W.T. Ames, Appellant
    No. 8351
    Charles F.Claiborne,Judge.
    April 16th 1923 .

   Cicero A.Ramsey vs W.T.Amos,Appellant.

Ho.8351

diaries F.Claiborne,Judge.

Plaintiff is a real estate agent;he sues for a -Commission.

His suit is based upon the following offer made on November 22nd 1919 ;

"I hereby offer you $4350 for the double cottage 6119-21 Patton Street xxx Terms and conditions!Cash subject to loan,Bldg and Loan Ass’n. of not less than $3100.00 It' is understood and agreed that this offer will hold good until Monday November 24th 3 P.M. 1919.If above offer is accepted,I obligate myself to deposit with Cicerp A.Ramsey 10 per cent of amount offered to bind the sale.In case I fail to comply with the above offer^if accepted,I agree to pay to Cicero A.Ramsey a commission of 3 per cent.
"Signed" W.T.Ames .

Under the above offer the owner signed the following acceptance!

New Orleans November 24th 1919
I,the owner of the above property,agree to the-afeeve pell the same as per above offer,agreeing to pay you a commission of 3 per cent.
"Signed" John E.King.

The petition -sets forth the above offer and acceptance and further alleged that Ames stopped the payment of said check,by reason whereof plaintiff was entitled to his commission,and to $2.50 for protest fees of the check.

The defendant filed exceptions of no cause of action.

They were referred to the merits.

It does not appear that any judgment was rendered upon themjnor has defendant insisted upon them in this Court.

The defendant admitted the above offer made to him, and the giving of a checkjhe averred that no homestead loan had ever been sought or obtained by any party and that therefore one of the conditions of tho contract had not been complied with.He denied all the other allegations of the petition.

There was judgment for the plaintiff,ai'd defendant has appealed.

The defense is hazy.

The grounds are that there is no evidence that a loan of $3100.00 had been secured from any Homestead.lt does not appear with any certainty that it was plaintiff's obligation to procure it.But why should he have done a vain thing? on Tuesday November 22nd the defendant made the offer;on Thursday the 24-th the owner accepted it; on Saturday the 26th the defendant"put up” his check;on ifonday the 28th he told the plaintiff; ” I told him that I didn't care to negotiate further for the property,and I didn't care to put up the appraisement fee,and didn't care to go into the transaction.”

As a furhiier evidence of his determination not to comply with his offer he stopped the payment of his chock, which was protested.

Under such a state of affairs the lav; is that the debtor of an obligation need not be put in default.No.7964 Ct.App.10 Ct.App.237 •

The defendant also pleaded that the plaintiff was not privy to the contract.

The answer to that is the language of the offer addressed to Ramsey,agent and signed by Ames;

” In case .1 fail to comply with the above offor,if accepted,I agree to pay to Cicero A.Ramsey a commission of 3 per cent”Ramsey accepted this offer and acted upon it and is therefore entitled to its benefits.

The Judgment of the District Court was in favor of the plaintiff ,V/e see no error in it,and it is therefore affirmed.

Judgment affirmed.

April 16th 1923.


author: By WILLIAM A. BELL, Judge.

text:
    WILLIAM FRANTZ & CO., INC., VS P.L. FOURCHY

      NO. 8352

    COURT OF APPEAL PARISH OF ORLEANS
    WIRLIAlt A. BBIiI<, JOB®.
    APRIL 16, 1923.

   By WILLIAM A. BELL, Judge.

This is a suit upon an «pan aooount to vhioh defendant filad exceptions of want of authority in the plaintiff to Bring tho rShtion, of vagueness to the petition ana of no cause of aotien. These (exceptions, were properly overruled and defendant filed answer of general denial. The amount claimed is for $825.30, a Balance on an open aooount originating January 8, 1916, and running to December 30, 1917. The aooount shows a total of $1180.66, upon which cash payments were mads in various amounts Between Maroh 17, 1917, and June 6, 1920, aggregating $355.36. At the trial of the case ample proof By two witnesses was made of the purchase and delivery of the goods sold and of the correctness of all other items on said ao-oount, inoluding various interest payments on certain notes, eto.

The defendant appeared in propria persona But offered no evidence whatever in his own Behalf.' There was Judgment for plaintiff in the amount prayed for and- defendant has appealed. In this Court defendant filed a plea of prescription of three years to each and every item on the said Bills sued upon. As already stated, the record shows that numerous cash payments were made on thejaocount, the last one Being under date of June 5, 1920. From this fact it is evident that the plea of prescription is not tenable and the same should, therefore, Be dismissed. From the reoord of this oase it is evident that the appeal taken to this Court is frivolous and appellee having answered the appeal with prayer for damages for frivolous appeal, it is plain to us that such relief should Be granted and that plaintiff should Be awarded five per cent, damages on the amount of the judgment appealed from.

IT IS, THEREFORE, ORDERED, ADJUDGED AMD DECREED that the judgment herein appealed from Be and the same is hereby affirmed at defendant's costs in Both courts.

ilaintif; IT IS RIMESE ORDERED, ADJUDGED ADD D3CREED that thp P and appellee herein he and he is hereby awarded dlr'iages oe five per cent, on £825.00 or the sum of £41.26.

judg^eut arriei,ird.

A2RII 16, 1920.


text:
    MARYLAND MOTOR CAR INSURANCE COMPANY VS JOSEPH A. DANNA
    NO. 8356
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    JUNE 25, 1923.

   By WILLIAM A. BELL, Judge.

She Judgment appealed from was for defendant, dismissing plaintiff's surrogated olaim for damages arising from a ool-"lision of automobiles. Issues of fact are alone involved herein, and for this reason the findings of the trial Judge should ha "given great weight, hut a careful examination of the evidence oonvinoes us that the defendant was wholly at fault and that the Judgment should he reversed.

She plaintiff company is subrogee of one, Chapman, owner of the ear which was injured by plaintiff and damaged by defendant. ihere is no contention as to the nature or extent of the damages herein claimed to the amount of $263.83. Chapman, for plaintiff, and defendant, Banna, on his own behalf, are the only two witnesses testifying as to the causes and circumstances of the accident.

We find that about noon of Sunday, February 1, 1920, William M. Chapman, the owner of the damaged automobile, had parked his car in front of his store on the river side of Camp Street about sixty feet from the upper, river corner of Camp and Poydras Streets. At this point Chapman got into his oar, and with the intention of going up Camp Street on the lake or wood side of Camp Street, he first took the direction down Camp Street, towards Poydras Street, and turning at a slow rate of speed, slightly into Poydras Street towards the river, he held out his hand to signal to a long line of slowly moving automobiles, which were on the down track of Camp Street, thus notifying them that he intended to turn into Poydras Street, to his left and toser da the lake side of Camp Street. While pursuing this direction, he had crossed the down-going line of automobiles and had reached the middle of Poydras and Camp Streets, and was Just about to turn up Camp Street, an the up-going oar track, when he saw defendant's oar bearing down upon him from the lake side of Camp Street, at a distance, he says, of about thirty to forty feet away from him. In attempting to avoid defendant's car, he abandoned his intended direction and tried to go out Poydras Street towards the lake, when the collision occurred, defendant's car hitting lis oar on the rear right fender and driving it soma fifteen feet from the point of collision and turning it in an up-town direction.

Both Chapman and the defendant,testify that after the collision defendant's car continued to move until it was stopped on the river-side curbing of Camp Street some distance below Poydras — Chapman says^some one hundred feet from the point of collision. It is true that defendant's car was a much heavier car than Chapman's, but this fact convinces us that defendant's car must have been going at more than fifteen miles an hour, and, therefore, in excess of the speed limit. These two witnesses testify concerning the speed of Chapman's car as follows:

CHAHIAIJ: "It was going pretty fast. It hit my car hard enough to almost drive the. top out; he knocked the bumper .off his car; he didn't stop for at least 100 feet after he hit me."
DR. DAlffiA: (Direct Examination). I am sure I was within the speed limits. I am sure I was not going over twenty miles per hour.
* * * *
X. Q. — "You said you were going twenty miles an hour.
X. A. — "No, I said less than twenty.
X. 4. — "How much less, Doctor.
X. A. — "I suppose 15 to 18 miles. I remember I slowed up at the corner, and in order to look in both directions to see if any other oar was coming, as that is usually a very busy corner, and this was Sunday.”

The traffic ordinance offered in evidence and covering the area in which the accident occurred, provides that no vehicle within said area should under any circumstances be driven at a greater speed than fifteen miles per hour. It is to be noted that if defendant "slowed up" because of the very busy corner he was approaching, and under such conditions/was then going from fifteen to eighteen miles per hour, he must have been sxceed-ing the speed limit at all times both "before end after the accident. The ear after the accident was not stopped within less than one hundred feet, and only after a collision of such severe impact as to strip defendant's humper and extensively damage Chapman's oar.

Defendant admits that his ear was among the many down-going automobiles on the river-side car tract: of Camp Street and that because those in front of him viere not moving fast enough for him, he turned out of traffic somewhere about the lower part of Lafayette Square, a distance of at least 125 feet from Poy-dras and Camp Streets, taking the up-going oar track. Ee also admits that Camp Street was perfectly clear on that side of the street. From his shifted position to the lake side of Camp Street, he dould, therefore, have seen any vehicle going out Poydras Street or turning at the intersection of Camp and Poydras Streets and should have had ample time to slow down and to blow his horn. Hone of these precautions he seems to have taken. The accident, in our opinion, was entirely due to the negligence of the defendant and there should be judgment for plaintiff'.

IT IS, TEHR3E0RE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same hereby is reversed.

IT IS HOW ORDERED, ADJUDGED AED DECREED that there be judgment for plaintiff, Maryland Motor Car Insurance Co., and against defendant, Joseph A. Danna, in the sum of Tto Hundred and Sixty Three and 83t>100 Dollars ($263.83), with legal interest thereon from judicial demand until paid, and for costs in both courts.

JUDGMENT REVERSED.

JUME 25, 1923.


author: Dinkelspiel; J.

text:
    NO. 8359
    COURT OF APPEAL PARISH OF ORLEANS
    FRIEDRICHS & DUPAS versus HIBERNIA BANK & TRUST CO. ET AL.

   Dinkelspiel; J.

In order to properly determine the questions in-Ived in this litigation, we give a portion of the plaintiff's petition, which asserts!

"That on Ootober 1, 1930, KKiixpaxtiurtkly plaintiff leased the'premises 335 Carondelet Street and 804 Union Street; oomprising a portion of the lower floor of the building, forming the oorner of Carondelet and Union Streets, in the square bounded by Carondelet, Union, inti» Perdido and. Beronne Streets,
That said premises, 804 Union Street, were leased by said partnership for the purpose of sub-leasing the same, and that5'said partnership could have obtained tenants therefor at a-monthly rental of $150.00 a month, but for the faot that th.e Hi- ’’ bernia Bank.& Trust Company was having constructed by the George A. Fuller Company, a corporation doing business in this City, a 30-story building direotly aorose Union Street from.said prem- ' ■lses, 804 Union'Street, and, in connection with said work, erect-. ■ ed in front of and above said premises, á structure, and also' ' erected bins and/'oontinually piled building matoneas on said ' . 1 sidewalk, thereby rendering said premises uninhabitable or unsuited, for oarryong on-any business therein; that on or about January 11, C 1931, the said George A. -Fuller.. Company, .contractors .of the' Hibernal la Bank A Trust Company,- as aforesaid, removed said structure fro*..'J; Union - Street add plaoed. immediately in front of said premise* -a ohut$/ leading to the upper story of the hew Hibernia Bank A.-Trust Com- • ■ ,;->N pany building, whioh ohute was used to carry all the deferís ,fr«s:; -sj said 30-story building to the street.surf.aos and rendered it.impost - eible to use said premises for any purpose -whatever, and at /or: about that time, said George A, Fuller Company boarded up the.' glass doors of said premises, in order, to prevent the debris frws'j said building across the street breaking the glass thereof»-/; ''

That by the aots hereinfeefore. rbolted of the-said; ■ ‘. •Hibernia Bank A Trust Company, and the /George A» Fuller. Company: petitioner has been deprived of the vise of the said premises, 804 Union Street, since Ootob,er 1, 1920, and is still unable to use the same.

That the construction Of said new Hihernia Bank & Trust Company building aoross the street caused the ground to rise under the floors of said premises, 804 Union Street, and make them buokle up in such a way as to make it impossible to use said premises for any purpose whatsoever, even if the said chute and the purposes for which it is used did not prevent the use thereof.

That petitioner is entitled to a judgment, in solido, against said Hibernia Bank & Trust Company and said George A. Fuller Company, for the rental value of said premises, 804 Union Street, at the nte of $150,00 a month from October 1, 1930, to such time eta said premises are repaired, restored and put in suoh condition that they can be used by tenants, and the said ohute is removed from the street in front of the said premises.

To this petition the Hibernia Bank & Trust Company filed an exception ofi the ground that the petition discloses no right or cauae of aotion. . On the trial of this exception came wrs maintained and the suit dismissed. Hence this appeal.

In support of the exception filed by...the lrsrned counsel for the defendant in this case, they refer us to the case of Heine et al, vs. Herrick st.als, tc be found in the 41st Ann. at from page 195 to 309, wherein the question mainly of party walls end the rights of the owners were fully discussed and the question there was as to the right of the contiguous owners claiming damages. Under the olrcumstences end articles of the Civil Code applicable to same the owners dh03e property had been invaded had not a right to sue in deniegas for such invasion, and it was held:

"In'demolishing the old and building the new p;rty wall, under the conditions fully proved in this case, plaintiffs exero ised an absolute right oonf erred, upon them by the law. Under the maxim neminem laedit q.ui jure suo utitur, they were not bound to indemnify their neighbor for any inconvenience or injury neoee-sarily occassioned by the exeroise of th6 right. Such a work must of necessity incominode the neighbor. It cannot be proseouted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of tenants. It may. give ground •for the annulment of his lease or for a diminution of rents. It may prevent the renting of his property» It may injure him in many ways. But so long and in so far as these Injuries are in-eeppar&ble from the exefcise Of the right, the neighbor is bound tc-submit to them and oan claim no indemnity therefor."

The Court gdes on,on page 207 to define the rights of the proprietor:

"But, on the other handj plaintiffs are responsible for every exaggeration of these ne.cessary 'damages, which, by any diligence, they could hvve prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occassioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the ex-eroise of their right; and to hasten, by all practical means, the completion of the wall and the restoration of the neighbor to.the full enjoyment of his property.

They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which he occupied in the beginning, and to furnish ■ him a wall fit and.adequate to support hi3 buildings without injury.®

In the case of Levy vs. Fenner and others, 48 Ann. p. 1390, the same questions more or less wore involved. The Court a quo -in tb"t case rsserved the right of the plaintiff to claim for injury to the plastering and papering on the walls and inconvenience oausr-i by the rubbish and debris left- on his premises by defendants snd the expense of the removal of same, as well as for rents lost by the unnecessary protraction of the work — an of his claims icr these items being dismissed-as of non-suit.

The pray in that case was for the recover of $2770.00, ■ for damages incurred as already stated, and there'defendant excepted on the ground:

"That they were not answerable for the damages claimed, because .they had the legal right to build the larger and heavier building whioh they constructed on their property as alleged in the petition, and to’ tear down the old party wall separating said new building from the building of the plaintiff, and to build a new party wall of greater width,.height and thickness than the old one, necessary to support said new and heavier building; and that plaintiff was bound to submit to the loss and inconvenienoe resulting from the proper exeoution of said work.
That, in the exercise of said legal rights,they entered into a oontraot with a competent and trustworthy builder, to construct said new building, including the. demolition and reconstruction hf said party wall, .snd the restoration of the plaintiffs building, all of Whioh he hound himself to do in ^ proper end workmanlike manner; and that they yielded up to said contractor and builder the entire possession and control of said premises and work^. reserving to themselves no direction or oontrol as to the manner-of doing, the work, or ae to the persone whom he should employ therein."

In a Very elaborate opinion in that osee, the .Court finally deo'ided, that notwithetanding absolute right of the owner to do the work required in that oase, yet, if it cannot be proseouted without an- entering upon and partial occupation of the premises, it XXtKBU* may give ground for damages in annulment of leases'-or for diminution of rents, and it may prevent the renting of. his property; but on the other hand plaintiff are .responsible for any exaggeration of these neoessary damages, which, by any diligence, they could have prevented. They were hound, by every means in their power, to reducé to á minimum the' injury and inconvenienoe oooassioned ' to their belghbor; to occupy his property to the least extent and for. the shortest time consistent with the exefoise of their right; and to hasten, by all-praotioal means the completion of 'the wall and the. restoration of the neighbor to the full enjoy- - mént of his property*

They were.moreover, bounds at their .peril, to replace . the neighbor, at the end of the work, in a position equal in every respeot to that which he ocoupied in.the beginning, and ’to furnish him a wail fit and adequate;to support his buildings without injury,"

In the oe.se of Higgins Oil & Fuel Company vs. Ouaranty .defining ■ Oil Co. .145 La. p, 235, the Court la/toMBMig article 491-505 in reference to praxis*»» perfect ownership of the soil, at page 238, quoting from Pothier: "Ownership may be defined to be the right to dispose of a thing as one pleases, provided the rights of others are not thereby infringed, or some law violated."

And-on page 243»’ "When a neighbor has legitimate.' grounds of complaint against' the acts of. another owner, what is the result of the suit he brings? There can be no doubt that the •courts oan allow damages to the extent of the prejudice that has--been caused. The indemnity'must first make good the damage euf-. fered in the past, and not alone that suffered since the'putting in ' default. Article 1146 (1926 La. Code).has np application to mat--ters of offense and quasi offenses. The Courts osn, moreover, award damages in reparation of the prejudice Which will occur in the fu- ' ture, if things- remain in the same condition. So long as the injurious fact -subsists, the prejudice continues to be oertain,' and the - courts may take into consideration-the future oonsequences of this. known fact in order to save the parties from the too frequent renewal of the same suit; the judgment, it is true, in so far as relating- to the future, will-have a conditional character. The oondem- -■ ..nation will be subordinated to the continuance of the aotual pre- ", judioe, which will allow the parties to ask at any time its modi-ficaticn, accordingly as the prejudice may increase or diminish, or cease altogether."

April 30, 1923

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from, is therefore set aside, the exception of no cause of action overruled, and the case is remanded for trial,

-Judgment reversed and remanded-


author: By WILLIAM: A. BELL, Judge.

text:
    MRS. ALFERETTA O'FARRELL, WIFE OF DR. J. A. AUBREY, VS MRS. WIDOW CARMELITE SCOTT

      NO. 8365
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDCS.
    APRIL 30, 1923.

   By WILLIAM: A. BELL, Judge.

'-this is an action for Blander in which plaintiff prays for damages suffered to her peace of mind in the sum of §100.00 and to !her reputation in the sum of §400.00. The case was heard without f _/ jury and the judge a quo found for the plaintiff in the Sum of 4k' — - §100.00. From this judgme2jt defendant has appealed and plaintiff has answered the appeal hy praying for an increase of the award to §500.00, the total amount prayed for in her petition.

The petition charges that on January 23, 1921, at a meeting of a certain colored society, in which both litigants are members, the plaintiff being then its presiding officer, defendant maliciously and without probable cause, slandered plaintiff by stat■ing to her , in the presence of numerous people, and with a loud and angry vo±4e: "You are a dirty woman, you are no lady, you are no good."

The testimony of the plaintiff and three other members of the society summoned on her behalf^is to the effect that defendant uttered the above-quoted words, addressed to plaintiff, with the additional words, "they don't come any dirtier than you do." There is considerable testimony in the record concerning the conduct of the meeting of the Society before which meeting the slanderous words are supposed to have been uttered. We do not propose to discuss this evidence beyond the necessity for determining whether or not the words charged were uttered by the defendant. The defendant herself admits that because of what she considered was plaintiff's unfair conduct of the meeting while in the chair, she did say to her: "Any woman who tafees personal affairs and brings then to the society to revenge on members, was a ditty Woman," and further: "YoU would not have done that if you had not been angry with the girl," (meaning her daughter). Another witness for defendant testifies that she heard defendant call plaintiff a "no good lady." Defendant denies that she-uttered the words charged hy plaintiff or that she intend.ed in any way to reflect upon plaintiff's character. A third witness for defendant testifies that defendant, speaEing to plaintiff, said: "You are all dirty to do that," (meaning to conduct the meeting as it was being carried on hy the plaintiff as presiding officer). There is, therefore, undoubted evidence in the record that plaintiff ivas abuseIfeaiaCif not all, of the- slanderous words above quoted; but there is no testimony whatever to show that her good reputation among her friends or in the community in which she lived was in any manner injured. The judge a. quo . in awarding $100.00 to plaintiff, the sum claimed by her for injury suffered to her peace of mind, was evidently of the opinion that no other injury was sustained.- The words uttered are undoubtedly actionable in our opinion and we see np error in the judgment of the lower court. There are numerous authorities cited by appellee in support of her prayer made in this court for an amendment of the judgment so as to allow her the full amount prayed for. We have considered these authorities, but ere not inclined to increase the judgment of the lower court, believing that full justice has been done.

IT IS, TEBHEE'OHE, OBDERED, ADJUDGED AKD DECREED that the judgment appealed from be and the same is -hereby affirmed at defendant's costs in both courts.

JUDGMENT AFFIRMED. APRIL 30, 1923.


author: Charles P.Claiborne,Judge.

text:
    Paul A. Fourtier vs Liberty Manufg’ Co. Appellant
    No. 8367
    Charles F.Claiborne,Judge.
    April 30th 1923

   Paul A.Fourtier vs Liberty Manfg.Co.,Appellant.

No. 8067

Charles P.Claiborne,Judge.

This is a damage suit for failure to execute a oontraot within the time specified.

The plaintiff alleges that on April 25th 1918 he made a contract with the defendant by which said defendant was to manufacture 10,000 bicycle stands invented by the plaintiff and to deliver 1,000 of said stands within three months from the date of the contract and the remainder on stated dates, during two years;in case of violation of the contract by either party " it will become null and void and the party injured by such violation shall have the right to recover from the other all such damages as he may have suffered.In case of the violation of this agreement by the party of the second part because of acts beyond his control,it shall be entitled to such delay as the circumstances may warrant."The defendants did not perform their contract with-in the time specified;whereupon the plaintiff / on August 3"1918,nine days after the time specified for the first delivery,wrote a letter to the defendants making demand for 1,000 stands.

To which letter the defendant replied by saying that they were doing everything in their power to make delivery on time,"but due to the abnormal conditions existing,in the way of securing skilled labor such as wa3 required for the manufacturing of this product which conditions they were not responsible for,they would be compelled to ask them to have a little more patience,as they were rushing the work all they could,and would deliver the stands at as early a date as possible; the plaintiff then addressed another letter to the defendant giving l&v<them twn days to make delivery in accordance with the terms of contract.On August 22nd following,when defendant still was in default,the plaintiff notified the defendants in writing that their contract was " cancelled and annulled by the failure on their part to make deliveries as agreed" and that he would sue for the annulment of the contract and for damages.On December 9th 1918 the plaintiff filed this suit for the annulment of the contraot and for damages.

The defense was a repetition of defendants' letters quoted above,and the assertions of the continuing existence of the contraot and willingness to execute it.

There was judgment for plaintiff as prayed for and defendant has appealed.

At the time this contract was made this Country was at war,with foreign nations.But there is no positive evidence that the restrictions on trade upon whioh defendant relies were in fence on April 26th 1918 .

W.P.Conery,Manager of the defendant Company being asked why he could not oomply with the contract said!

"He was unable to get the necessary material or to hire the class of mechanics able to turn out the kind of work required to execute the contraot;he applied to the Machinists' Union,he advertised,he caused his employees to inquire,he applied to the other shops and even asked the plaintiff to procure mechanlos;he paid higher prices than shop prices.He tried to procure the necessary material through the usual channels,St. Louis,Chicago and from local jobbers;he did not have the material on hand at the time he made the contraot;sometime in June or July he got a letter from the ?t.Louis screw Company telling him that there was no chance of getting any material;he kept the plaintiff posted as the situation of labor and material; he could not get the men and materials owing to the war and war conditions; the defendant Company took the usaal pledge required by the government to obtain material ahd sent it to Washington;the bicycle stand was not looked upon as a war essential by the goverbment officials when he took it up with them;there was no other manufacturer» who could have.secured the steel to make those stands unless they misrepresented things to the government • or gave some fictitions goverbment order that it was to be usei on; whenever they wanted to buy material they had to give either a wad contract number or a priority number which was furnished by the priority board if they considered tt essential Luxuries to the welfare of the nation during wasf time;but for %he feaeénaaa they would not issue those orders;he would not have been permitted to use the steel in his own establishment without permission from the board.

J.O.Markstein,engaged in selling railway and mill supplies for the St.Louis Screw Company of St.Louis testified that he received an order from the defendant Oompany between they refused to accept it"beoause the Liberty Manufacturing Co. could not give them either a priority certificate from the War Iries Board or a goverbment order;they received those orders on July 3rd 1918 ; prior to that time they had to be informed that jobbers had signed the pledge with the War Industries Board;the pledge was that any material bought from them would be sold only to those doing essential work. All this testimony stands uncontradicted.

The law of the case is contained in the contract itself in these words; " In case of the violation of this agreement by the party of the second part beoause of acts beyond his control,it shall be entitled to such delay as the cireumstances may warrant." We consider this language as covering the unforeseen emergencies whioh might arise by reason of war conditions then prevailing and which did arise.lt was broad enough to cover all conditions beyond the defendant*^ control.

But Independently of this clause the law exempts the defendants from the performance of their contract within the time specified under the circumstances.

C.C.1933 (1927) S2I

l'Tíhere,by a fortuitous event or irresestihle force, the debtor is hindered from giving or doing what he had contracted to give or do or is from the same causes compelled to do what the contract bound him not to do,no damages can be recovered for the inexecution of the contract.”

C.0.2120- 0.0.3500 S lo :

" Fortuitous event is that which happens by a cause which we cannot resist." 115 La 6

The evidence shows that defendant's failure to execute his contract was owing to his inability to obtain men and material.This constituted a " for tuitous event and irresistible force."

The conditions existing during the war were matters of public notoriety.If it is said that the defendant should have known those conditions and should have acted accordingly, the answer is that the plaintiff also should be held to a knowledge of those same conditionsland that it would be Une-quitable and illegal to perSttit him to take advantage of them9 to the loss of the defendant. A contract must be construed as a whole and in the light of the conditions and cirsumstanoes existing at the time 9 R 308-151 La 696-

The plaintiff must have known that the defendant was not holding in stock material for 10,000 stands and that it 1C would have been necessary for him to obtain thsa from some other source.

Ih the case of Drummond vs Steamer Castro the Court said:

"To enable a defendant to recover damages for the non-completion of a job of repairing a steam boiler within the tlie time specified in the contract,it must be shown by defendant that the fault was with the plaintiff.If the evidence shows that the delay was unavoidable and that the plaintiff made the defendant acquainted with the causes of the delay,no damages can be receovered on account thereof."

We have therefore come to the conclusion that the plaintiff is entitled to a judgment annulling the contract sued on for the reason that the defendant could not execute the same and that it has expired by limitation,but that he is not entitled to the damages prayed for.

It is therefore ordered that so much of the judgment of the District Court as condemns the defendant,the Liberty Manufacturing Company Inc.to pay to the plaintiff,Paul L. Fourtier the sum of Eighteen Hundred and thirty two dollars with legal interest from judicial demand,until paid be reversed and set aside,and that in all other respects the said judgment be affirmed,the defendant and appellant to pay all costs of both Courts.

Judgment amended and affirmed.

April 30th 1983 .


author: Dinkelspiel; ,J.

text:
    NO. 8372
    COURT OF APPEAL PARISH OF ORLEANS
    HIBERNIA BANK & TRUST COMPANY VERSUS J. NORMAN MITCHELL.

   Dinkelspiel; ,J.

The sole .question presented in this case is the value of the fee of Bernard Titohe,. Esquire, who was appointed to rep-xasent the' absent defendant in this oase. The amount allowed him by the Judge of the Court a quo was the sum of $350,00,. and in order' to determine whether this fee was reasonable or not, we refer to the record in this oase, whioh shows that plaintiff sued the'defendant on various bills of exchange, all amounting to the sum of $53,468,68. That defendant was a non-resident of the State of Louisiana, having property therein, and plaintiff prayed that an- attorney to represent him be appointed, whioh order was issued and Hr. Titohe was appointed as suoh attorney.

The servioes rendered by this -gentleman are best described by his testimony in this case and we quote it in its entirety.

*X desire to testify that immediately after my appointment', this suit being on bills of exchange dated SanDiago, Cuba, I addressed a letter to the defendant in San Diago, Cuba, informing him fully of the oase and at the ssme time I applied to the plaintiff's attorney to get the exact address of the plaintiff-, and learning from them that he was domioiled in Brooklyn, Hew Tork, I dddressed a second oommvmioation to him there, and in answer I received a letter and a telegram from him acknowledging the reoelpt, X sent him a telegrsm also acknowledging receipt Of .my telegram and told him bf the limited time he had to' reply. A few days after he oame to my offioe and told me that he'had settled the matter with the Hibernia Bank; the claim was $55,000.00 and they realized.$5500.00, and I have asked to have my fee taxed at $350.00, whioh I think is reasonable."

The reoord shows in addition to this, that Hr. Waiter Gleason, a practicing lawyer at the bar, after hearing the statement of Mr.' titohe testified that he considered $350.00 charge a very, reasonable one.

We have already stded what -the judgmdnt of the Court was..

Counsel oite3 two oase.e in his brief. One Bowie vs. Davis, 33 An. p. 345, wherein the Court allowed the sum of 11500.00 for attorney's, fees, the reoord shows that Mr. Farrar, who was the attorney in that oase, had been the attorney of the party in question for a long .time, had ha.ndled a great deal of litigation for it, had received a fee of $3000.00 for work outside, and not included in the matter in controversy.

The other case, Watts vs. Williams, 107 Da. 506, ’oonstrues revised statutes, Act 108 cf 1857, deoided as the statute reads, 'it was in the discretion of the Court to allow the fee in question but does not give in the decision-the amount of the fee.

We find that the only service rendered by the able counsel in this case, was receiving the oitation, writing of two letters to the defendant, a visit by the defendant to his offioe, simply stating that he had received the letters and that he had settled itjhe matter for $5500.00.

tinder these circumstances as dsssx disclosed by this record, we think a fee of $100.00 will compensate the attorney for the services rendered.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court aquo be end the same is hereby’amended,and reducing the fee of Mr. Titohe from $350.00

-Judgment amended and affirmed-


author: Charles F.Claiborne,Judge.

text:
    Abraham Gerson vs James Benson and Al. Appellants.
    No. 8373
    Charles F.Claiborne,Judge.

   Abraham Gerson vs James Benson and Al.

Mo.8373

Charles F.Claiborne,Judge.

This is a suit based on the violation of an agreement of sale.

Plaintiff averred that by a written contract dated April 6th 1919 James Benson agreed to sell to h-lm all of his interest aB well as the interest of his co-owners ina a certain property on Lopez Street for the price of §1400 cash,act of sale to he passed within Sixty days; which contract plaintiff caused to he registered in the conveyance offioe on July 19th 1919 ; that defendant never tendered title to plaintiff;that notwithstanding said contract defendant sold all his interest in said property to Antonio and Salvatore Papa,on Ootoher 10th 1919 for the price of §700 .He prays

For judgment decreeing the nullity of the sale made hy Benson to the two Papas of his interest; 1 st

That Benson he ordered to transfer all his interest in said property to plaintiff for §700 or tha*- the whole property for .§1400,and 2nd

§250 Attorney's fees for damages;and in the alternative for judgment for §850 being the difference between the price at which Benson agreed to sell the property and $ts fair value to-day,and §250 Attorney's fees' . 3rd

Defendant Benson admitted the contract of sale and the prloe and time of sale,and the registry in the conveyance offioe,and the sale to A and S.Papa .

Further answering he avers that he and his oo-owners were always ready to comply with the agreement of sale; Rut that "the plaintiff failed to perforin and comply with the tenns,conditions and stipulations of said agreement and the áaid plaintiff and through his counsel Felix J.Dreyfous,with the sixty day limitation for the passing of the act of sale embodied in said agreement and thereafter refused and declined to approve the title to said property and refused to accept the said title to said property,claiming that title was defective; defendant denies that he was ever tendered the purchase price by plaintiff;that plaintiff having failed to tender the purchase price or to pass the act of sale within sixty days according to agreement,the defendant considered the agreement at an end,and in good faith sold the property to A.and S.Papa; that the plaintiff caused the agreement of sale to he registered long after the expiration of the sixty days and should be ordered to cancel same.He prays that plaintiff's suit be dismissed and that he be ordered to cancel the inscription.

The answer of the other two defendants is practically the same and they call Benson in Warranty.

There was judgment for defendants on the main demand and also on the reconventional demand.

The plaintiff has appealed.

There is no allegation in the petition that the plaintiff ever tonderedto the defendant the price of sale;on the contrary the evidence is categorical that no tender was ever made.Before the plaintiff could demand of the defendant a compliance with his promise to sell,or claim damages for his refusal so to do,it was his duty to tender to the defendant the price of the sale.

0.C.1912 (1906 )

^The effects of being put in default are not only that,in contracts to give,the thing which is the object of the stipulation,is at the risk of the person in defau.it;but in the cases hereinafter provided for it is a prerequisite to the recovery of damages and of profits and fruits,or to the rescission of the contract."
0.0.1913(1907) - In commutative contracts,where the reciprocal obligation are to be performed at the same rime,or the one immediately after the other,the party who wishes to put the other indefault,must,at the time and place expressed in,or implied by the agreement,offer or perform,as the contract requires that which on his part was to be performed,otherwise the opposite party will not be legally put in default."
" He who seeks equity must do equity.Thus where the legal title is in the defendant and the equitable in plaintiff,the latter must' pay the price before he can compel a conveyance " 1 H.D.p.1020 No.19-

One,whose right to recover depends on-an act to be done by him,must show an actual tender and refusal,or that he has done all he could to give effect to the contract.So,an agreement tc sell cannot be enforced without a tender of the price stipulated. 1 H.D.1020 Ho.14 -14 La 234-15 La 282-4 R 161 5 R 83-14 A 234-2 A 306-11 A 300-15 A 675-19 A 130-121 La 265 .

The case of Horn vs Graffagnino 121 La 263 is identically the same as the one before us.The syllabus reads:

" A party purchaser seeking to compel the specific performance of an aiJege-asd-grev® alleged contract of sale must allege and prove,or at the least,tender,exact compliance with what he was called on to perform undor the contract,(i.e.payment of price)
U A purchaser who would rescind a sale on the ground that the vendor failed to comply with his obligations must fi&rfet offer to comply with his obligations and put the vendor in // default.Bonura vs Davidson Jr.7630 Ct.App.

The defendant sold the property as a whole,and the plaintiff bought it as such.The defendant did not propose to sell nor the plaintiff to buy,an undivided portion of the property.This is evidenced by the contract of sale,and reepeatedly asserted in the testimony.The plaintiff had rejected the title on the ground that some of the vendors were minors and that the proceedings to divest them were irregular,and that there were mortgages recorded against some of the other owners.The plaintiff had required that proper legal proceedings should he made and that clear mortgage certificates should he prooured before they passed the act of sale.In order to obtain their end they registered 'the contract of sale and then rested.lt was no doubt defendant's^duty to have done so,if they had required the plaintiff to pass the act of sale.11 A 741-IÍO.77P0 CT.App.- But plaintiff had no right to compel that defendants so to do.They had no right to exact of the defendant a specific performance of their obligation;their only recourse was one in damages. Specific performance of a contract connot be demanded as an yL. absolute right;it will not be grafted when the plaintiff can be adequately compensated ina suit for damages.City of New Orleans vs N.O.N.E.RRD.Co.44 A 64

The case of Mirandona is Burg 49 A 656 ivas one to compel a vendor to execute a promise of sale. The Court said: " The specific performance of a contract will not be orderdd when compensation can be made in damages.Hor will it be decreed when the contract requires the doing of an act BOlely within the violation of the obligor,such as the signing of a lease,or the appointing of an arbitrator,or the exercising of the option to purchase property." Also Laroussini vs Werlein 48 A 13 .

In Caperton vs Forrey 49 A 872 the Court said:

* As a general rule,when the wrong to be redressed admits of compensation in inoney,
,the law confines the relief to an action of damages. C.C.1054-1955-3927- 1 Story Equity Juris p.714-46 A 712 "- .
" Under our law damages and not specific performance, at least in ordinary circumstances,is the reliof for breach of a contract for the payment of money." 46 A 712 .
"It is more the exception than the rule when specific performance of contracts can be enforced." 121 La 855

It will thus appear that the plaintiff is not entitled either to damages or to specific performance.

Judgment affirmed.

April 50th 1925 .


author: By Charlea í1. Claiborne, JudgB,

text:
    Charlea F. Claiborne, Judge.
    HENRY L. HEYMAN VS H. CROCHERON
    No. 8374
    January 9th, 1922.

   HENRY L. HEYMAN VS H. CROCHERON

No. 8374

By Charlea í1. Claiborne, JudgB,

with ooncurrenoe cf Judge»* at'. Paul and Dinkelapiel.

The defendant is a member of the Fire Department of the City of New^Orl^M^ Plaintiff having garnisheed hi a salary, he pleads that they aro exempt from seizure, both as a "publie officer" and as a "laborer".

I. Admitting that a fireman's wages are "money due for the salary of an officer" under Act 79 of 1876 p 123, or under Article 1992 (1987) of the Civil Code, or "salaries of office" under Article 647 of the Code of Practice, they are liable to seizure. Among the exemptions mentioned in the Act of 1876 was "money due for the salary of an office". In amending and reenacting this act, the Act 184 of 1918 p 347 omitted this phrase, and repealed "all laws or parts of laws conflicting with or contrary to the provisions of this act". The omission from said Act of 1918 of this particular exemption evidenced cldarly the intention of repealing it. There are now, under Articles C. C. 1992 and C. P. 644 - 647, no other exemptions than those specifically mentioned in the Act of 1918. 8 Ct. App. 286, 228, 231; 106 La. 248; 6 La. 134; 12 A. 431; 13 A. 486; 116 La. 1090.

In State vs White, 49 A. 129, the Court said:

"It was only when the codifier had omitted some part of the old statute, that a repeal was to be admitted, and then only, as to the omitted provision".

In State vs. Brewer, 22 A. 275, the Court said:

"In the case of Levois vs Gerke, 12 A. 832, Mr. Justice Spofford, who concurred in the opinion which finally prevailed on rehearing; said: "In the case of Holmes vs Waltz (11 A. 439) we held that the repealing clause (of the revisory legislation of 1855) only swept away such anterior legislation upon the matter specifically treated of in the new legislation as was not retained in the latter. In Stafford vs His Creditors, the new law treated specifically of the penalty for a fradulent bankruptcy, and we held that so much of the old law concerning this penalty as was not retained in the new was repealed". Also 117 La. 307.

I'he license Act of 1886 mentioned "saw mills" as the subject of a license. The Act of 1890 on the same subject omitted the word "sawmills"-; held; sawmills were exempt. Barnard vs Gall, 43 A. 959; 126 La. 489.

In Succession of Duprd, 116 La. 1093, the Court said;

"The rule is that Where a statute purports to cover the whole subject matter, it supersedes former laws on the same subject matter"

quoting 134 U. S. 207; 36 Cyc 1083; 118 La. 248; 120 La. 535 (542); 126 La. 396; 133 La. 306.

"In case a statute is reenacted and some of the nrovisions of the old law are omitted from the new, thi3 constitutes a repeal of the omitted provisions".

26 Am. & Eng. Enc. Law 735; 126 La. 392; 143 La. 39 (42); 142 La. 228; 11 Wall 493; 20 Wall 590.

An amendment "so as to read as follows" repeals "so much of the (former) act as is omitted (in the last act)". 36 Cyc 1083.

II. A member of the Fire department of the City of New Orleans is not a laborer, and his salary is not exempt from seizure. His duties to sweep and mop the engine house, to wash glasses, to put hose out to dry, to shine up the engine and brass pipes, are only incidents or accidents of his employment, and not' the purpose of his engagement. The recompense he received is rather a "salary" than "wages".

A laborer is one who performs manual labor, menial or physical exertion, labor or toil, not requiring special accuracy, knowledge, skill or training, end hence distinguished from an artisan, professional man, or skilled workman; one who perfoms with his hands the contract he makes with his employer; one who subsists by physical toil in distinction from one who lives by professional skill; one who works with his hands rather than with his head, a workman- 144, La. 917. Thus the fireman on a Locomotive is a "laborer", but not the Engineer". 108 La. 812; 8 Ct. App. 227; 113 La. 778.

It is therefore ordered that the .judgment herein maintained the seizure of defendant's wages is hereby affirmed.

January 9th, 1922.


author: By WTTJ.TAM A. BEBI, Judge.

text:
    THOMAS SUMMONS ET ALS. VS JOSEPH L. LANDRY
    NO. 8377
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    MAY 28, 1923

   By WTTJ.TAM A. BEBI, Judge.

As we appreciate this ease, after a careful consideration of the reo.ord, hriefs and. arguments presented, the issue involved is mainly one of law, the- facts not being seriously disputed on appeal. It is contended, by defendant and appellant that the controversy is an aotion in boundary and not a petitory action, as claimed by plaintiffs and as found in the opinion of the trial aourt. The land to which plaintiffs claim Joint ownership — and about the entire upper half of which is involved in this suit — is described as follows:

"A certain tract' or portion of land, situated in the parish of Saint James, on the left bank of the Mississippi River, at about sisty-twp miles above the City of Hew Orleans, measuring One eight of an arpent front by Forty arpents in depth, olosing more or less "in the rear., bounded above by the property of WMki Joseph Dugas,' Cleo-phas -Dugas and Sosthene Blanchard, and below by those of Evariste Part."

The learned trial judge has so clearly recited the material facts ‘as appear from the record of this case, that we adopt his findings as follows:

"The..-Evidence ■ shows that these plaintiffs acquired this'property by inheritance from their father, who had died more than 30 years before, and who had purchased from the author' in'title in 1871. .Their father'had lived on it from thS time of hiB acquisition up to his death, and they (his children) have always occupied it since'.,.'The 'prop-.-orty had a width'of twenty-four feet (lji8'.of an arpent as.the deed calls for) and the land on the lower side between this- property and that' of Bart has.always been recognized as the true and oorreet boundary line. The line oh-the.upper side, the one In.dispute, has always been recognized also by defendants authors in title as eorreot, until the • year 1912, when the. defendant, Dandty.,' -'employed the' services of a surveyor, who surveyed'Landfy'a property and arbitrarily placed the lower lint thereof; that is, the line between Dandry's property and that of plaintiffs',‘some 11; or'12 feet farther than.it.was,"thus enoroaohing on plain-' tiffs’' property to that extent’ * . . The teeti- ' mony-of Waties leaves no' doubt, in '.my mind7 that ’'the lower line -of plaintiffs, the. Part boundary, "is -a;, well- established and defined line'on which he fqtihd corners, marks-an'd posts, and that'the'width"given,7 in plaintiffs’, deed, 2d feet7, would -oarry aüd io-" cate'.plaintiffs' , upper linó betwe.en ll and 12 feet; ■beyond, the line placed by the engineer who surveyed Landry's property. Besides, he testifies to having seen indications of old fences, etc., on the line between plaintiffs and defendant, in the front. Waties' testimony is corroborated by that of another surveyor, D. Í. '«foods, who went on the property in'1917, and also saw evidences of the old line referred to. Besides the testimony of these two surveyors, I find an abundance of positive testimony, not only by the plaintiffs themselves, but by other parties, one, the adjoining owner, Bart, another, a man who cultivated both properties, that of plaintiffs and that of Landry, at the time it was owned by Blanchard, to the effect that there was a well established, fixed and determined line which had- ex-isted there for more than thirty years, up to which line plaintiffs themselves, or tenants for them, had always cultivated the property."

In the light of the above facts, we have carefully considered the case of Andrews v. Knox, 10 Ann., 604, cited by counsel for defendant„ who urges the similarity of that case with the instant oase as^a*«s3 for the fixing of boundaries between contiguous tracts of land. It is contended that the court held there, and that we should now hold, that plaintiffs Í» prayed to be adjudged owner of any portion of the lapd within the boundary, aUsttgíAvthe character of the action^froiNone of boundary .to one of petitory action. In the cited ease, we do not find, as is admitted in the present case, that the defendant had fixed the limits between him and his adjoining neighbor without giving the latter notice to be presentían against the provisions of Article 838 R.C.o) but, on the contrary,'that the plaintiff in the cited case averred'"that the defendant, although requests ¿¿fed have the boundary dividing the tract fixed in accordance with their respective titles, refused to do so." Shis allegation clearly admitted the non-existence of boundariew and clearly showed the desire to establish same in accordance with law. In the cited case no damages were prayed for though encroachment was averred, and no damages were due because the action was clearly one of boundary. In the instant case, not only does the plaintiff set up his ownership for over thirty years, praying for Judgment recognizing same and restoring him to possession of that portion from which he has been evicted, but he also prays for damages which could, not he due in an ordinary action for boundary.

'He agree with the trial judge that the petition and 'prayer in these proceedings, though coupled with a prayer for survey, "to re-establish the boundary effaced by defendant," is clearly a petitory action supported by abundance of proof of ownership for more than thirty years. (Bernstein v. Leeper, 118 La., 1098; Opelousas Bank v. Penodin, 121 La., 581).

In Blanc v. Duplessis, 13 La., 334, the plaintiff brought what the court found to be a petitory action, in which it was alleged that the defendant, an adjoining proprietor, had encroached upon plaintiff's land. The plaintiff there prayed that the land encroached upon be decreed to belong to him, and in the • same proceedings he also prayed that the boundary between his and defendant's lands be fixed and established. In that case as fn the one before us, parole evidence objected to was properly admitted to prove certain ancient marks and boundary lines connected with the actual possession-of the parties. This case was most similar to the one now under consideration, both as to the form of pleadings and the -rule of evidence adopted on the trial. Our learned brother of the district court cited the above case and we think he has correctly based his upinion upon the law therein enunciated.

Appellees have answered the appeal herein taken by praying for amendment of that part of the judgment which has allowed them only $50.00 damages and they now pray for $1,000.00 damages for deprivation of their property at the rate of $100.00 per year from 1913 to 1922. The judge of the lower court found difficulty in estimating the damages which 3hould be justly allowed. According to the testimony of one of the expert surveyors, it appeared that the quantity of land from which defendant had evicted plaintiff was estimated at 1.43 acres. Taking the evidence of another witness that corn land in that neighborhood had rented at $5.00 per aore per year, the court allowed plaintiffs $50.00^ based on that valuation. We find', however, that plaintiffs did not use .the land'for raising corn only but largely for the cultivation of melons and other vegetables, and that the whole of plaintiffs' land (not only the half from which they were evicted), when so cultivated, should have yielded profit from about' ninety to one hundred dollars per year. Three witnesses, two pf whom are the plaintiffs, so testified. Their evidence is not rebutted. We think: full Justice will be done in this case, by increasing the amSunt of damages from $50.00 to $500.00, and that the’Judgment, as thus amended, should be affirmed;

IT IS, THEREFORE, ORDERED:, ADJUDGED AND DECREED that the Judgment herein appealed from be and the same hereby is amended, sp as to increase the damages allowed plaintiffs from $50.00 ■to $300-.00.

IT IS FURTHER ORDERED, ADJUDGED ADD DECREED .that in all other respects the Judgment appealed from be and the same hereby is affirmed, defendant to pay all ooats in both courts.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

MAY 28, 1923.


author: By WILLIAM A.. BEER, Judge.

text:
    ARCHIBALD T. HIGGINS AND FREDERICK A. MIDDLETON VS GAETANO UCHELLO, ET AL.
    NO. 8378
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    MAY 14, 1923.

   By WILLIAM A.. BEER, Judge.

This is a suit by plaintiffs' to recover of‘defendants in solido the sum of $1500.00 for professional service's alleged to have been rendered under a verbal agreement or contract of employment, in which plaintiffs claim to have oeen retained by each and all of the defendants, to advise and defend some of the defendants who had been arrested by Federal authorities under a charge of having conspired to commit a crime in violation of a Federal statute. Defendants answer by admitting the arrest, but deny that they are in any manner indebted to plaintiffs or that they employed them or agreed to pay them the sum claimed. In the latter part of Paragraph "4" of the answer, it is further alleged by respondents that petitioners were notified that their servioes.were' not required by defendants or by the accused as named in the petition. There was judgment in solido against all defendants and in favor of plaintiffs in the sum of $B00.89, and plaintiffs have answered the appeal herein taitón by defendants, praying for an increase of the judgment to the full amount prayed for in the petition.

The evidence is most conflicting as to whether the contract alleged was definitely made between the parties to this suit, but we find from the record of this oase., from the notification above referred to in defendants' answer and from admissions mads by all defendants (the accused as well as their relatives.) that plaintiffs were undoubtedly employed or retained by each .'of the defendants for the purposes above mentioned, and that on the date subsequent to their negotiations, that plaintiffs were peremptorily dismissed after having rendered diligent and valuable services as far as it was'possible for them to do so.

It Is urged by counsel for defendants that pla inti fittest imony as to the verbal oontraot of employment, so far as-it referred to their engagement by relatives of the accused, should have been excluded on objections interposed, for the reason that the. offer of suoh evidenoe was an attempt to prove hy parole a promise to pay the debt of a third person. He find no merit in this contention. The employment in question was in relation to services not necessarily to he rendered to,'though for the bene-/A ■ fit of, the accused, who may not have seen fit to employ any counsel in the matter, hut to the relatlve^who ■ were..doubtlessly greatly concerned -in securing the liberty and acquittal of the aooused. It Is true, however, that both the relatives and the accused employed the plaintiffs, thereby rendering themselves liable to plaintiffs, not in solido but jointly and severally, for ' suoh services as may have been rendered. There is nothing in the record to show that there was any obligation intended to bind .defendants in solido. Suoh an obligation must be expressly stipulated, not presumed. Art. 2093.rf-C-C.

This oourt has frequently held that a contract- of employment with an attorney is in the nature of a mandate, .revocable at the will of the principal upon the payment of the value of the servioes rendered up to the date- of the discharge.(Gosserand v. Crespo and others , 7829 Orleans Appeal; DOuque v. Dejan, 8 Orleans Appeal, 430).

. The evidenoe is to the effect that plaintiffs were to be paid the sum of $600.00 oash, and we are convinced, as was evidently, the learned judge of the trial oourt, that services .435J' this value were undoubtedly rendered up to the time- of their His-, charge. We will not disturb the Judgment in this respect, (Ehil-llps v. Stewart, 24 Da., 162; Succession of Demien, 8987 Orleans Appeal), but will; however., amend so as to find defendants liable therefor unly jointly and not in solido.

IT IS, IHEHE20BE, OBDEBED, ADJUDGED ADD-DECREED that the judgment- herein appealed from be amended so that the defendants herein he and they hereby- are declared liable jointly and not in solido. : As. tlmif, «mandad, the Judgment is affairmed plaintiffs and-'appellees to pay oósts of appeal.

JDDGKEOT, AS AMENDED, AEEIHMED

MAX 14, 1923.


author: Dintelspiel; J

text:
    NO. 8384
    COURT OF APPEAL PARISH OF ORLEANS
    DOCTOR JAMES I. RICHARD versus J. F. PEYRONNIN.

   Dintelspiel; J

This suit was instituted by plaintiff against the de- ' fendant on a provisory note for the sum of $180.00; the note ds dáted Hay 20th, 1919, payable on demand, to the order of _the defendant, signed and endorsed by him in blank and bearing interest at the rate of eight per cent per annum from date until paid.

Citation issued and served on the defendo,nt in person; default was taken and the legal delays in which an answer should have been filed, having expired, judgment was rendered i: favor of plaintiff, on July 39th, 1931, after due proof of claim. Ho pleadings were filed by the defendant of any kind or oharaoter and subsequently and in due oourse, an appeal was taken to this Court, and plaintiff claims damages for a frivolous appeal. Ho defends was made to the demand of plaintiff or was there any attaok as to the good faith of the holder or question his title as owner for consideration.

The Aot of the Legislature of 1904, Sections 34, 35, provide that when sufficient proof has been made that one is the holder ofxkhi for ifiSK value of táw note and owner thereof, is entitled Jo judgment if not paid in due oourse.

Every negotiable Instrument is deemed prima facie to hs.ve been Issued for a valuable consideration; and every person whose signature appears thereon to have beoowe a party thereto for value.

Also see Section 36 of the same Aot.

Article 360 of the Court of Praotioe.

When the defendant suffers judgment by default to be taken against him, the issue is joined tacitly; because áuoh defendant is presumed by his silence to have confessed ■bile justice of his adversary's demand; therefore the plaintiff is allowed to prooeed with his proofs, in order to have the judgment confirmed.

A note endorsed in blanb by the payee, «axi&s delivered by him fulfills the requirements neoessary to vest title in plaintiff as holder.

Aot. 64 of 1904, Seotion 34.

The prayer filed in this Court, for damages for granted frivolous appeal will be/!at3dffi**S and the sum of ten per cent damages is herewith allowed.

Far the reasons assigned, it is ordered, adjudged and deoreed, that the judgment of the Court aquo be and the same is hereby affirmed, with ten per oent drmages for mfrivólous appeal; costs of both Courts to be paid by defendant.

-Judgment affirmed-


author: BTj fHEtAH A. mt, judge

text:
    WILLIAM BURDON, ET AL. versus WEST NEW ORLEANS LIGHT & TRACTION CO. and SOUTHERN COTTON OIL CO.
    NO. 8386
    COURT OF APPEAL PARISH OF ORLEANS.
    WI1IIAM A. BELIi, JUDGE:

   BTj fHEtAH A. mt, judge

This is a. suit in damages brought by plaintiff ^and wife against the Test Hew Orleans light & Traotion Company, /-and the Southern Cotton Oil Company, made co-defendants, for Vloss of their son, who was killed while a passenger on the eleetrio oar. of the Traotion Company. Plaintiffs herein are ppeHants, from a Judgment rendered by the 28th Judicial Dls-.triot Court far the Parish of Jefferson, whereby the .Court maintained exceptions, of res adjudicate, and pleas of estop-pel filed by eaoh of said defendants, the suit being dismissed at plaintiffs' cost.- -Prom-the record it appears that this proceeding was filed on June 8, 1921;' that the Traotion Company filed exceptions of no cause or right of action on June 18, 1921, and that the Oil Company filed similar exceptions on' June 20, 1921; these exceptions were fixed by order of court to-be tried on July 8, 1921, on which day it appears that both defendants filed additional pleas of estoppel and res adjudicate as aboye mentioned, and the District Court, on the'same day, maintained these latter pleas without passing in any manner upon the exceptions of no cause or right of aotion, which-had been specifically-set for trial. The appeal is solely from the Judgment-maintaining the pleas of estoppel and res adjudi- - cata, and it follows therefore, that the sole question before this .Court is whether said, pleas of estoppel and res adjudicate ' had. been rightly maintained,.

We are of the opinion that the judgment of. the lower Court was erroneous, for reasons hereinafter discussed, and inasmuch as the exceptions of no cause.or right of action - wer¿^passed upon by the lower Court, this Court will not con* aider same.

It is the uniform Jurisprudence in this state that Appellate Courts will not pass on exceptions whioh have not been considered by the Trial Court. In the case of Cordon vs. Business Ken's Racing Association - 140 la. 674 - exceptions .of’ no cause or right of action and of estoppel were filed, . After the trial of these exceptions, the trial judge sustained the exceptions of no oause or right of action, and refrained from passing upon the plea, of estoppel, under ..these conditions, the Court said: ' "This last exception, not having been passed on below, cannot be considered by this Court." Also in the case of Cunningham vs. The Penn Bridge Company and the City of Haw Orleans r 131 ha. 196 - a like ruling was made, the Court also holding that .the negligence of two persons or corporations may o.onour to produoe an injury, in which event both maybe held liable in solido.. 1 - Thompson on "Hegligenoe," Par. 177, p,176. It was finally ruled in this case that the question of liability as between the two, not having been determined by the Trial Court,, the Appellate Court would not, under its jurisprudence, undertake to determine this question, lie pass now to the cone slderation of the sole question before us.

In support of their pleas of estoppel and res adjudicate, both defendants have offered and filed in evidence record Ho. 3213 of the docket of the Trial Court, from whioh it appears that the same plaintiffs, alleging the same unfortunate accident, first filed a suit in damages only against the Traotion Company, who, in effect, denied all the allegations, of the petition, and defended on the ground that the aocident was not due to any fault of the Traotion Coiqpany, but solely to the acts of third persons; that these third persons (their names not being dlsolosed) had, a short time before the aocident, trespassed upon the Traotion Company’s road-bed, without .the Company's knowledge or oonsent, and by digging a concrete culvert under the Company's traoks, and through its road-bed, had undermined the road-bed, causing same to soften, and causing the railway track to become unsafe for traffic; that this trespass, with all of its resulting circumstances, was the proximate cause of the derailment of the ear upon which plaintiffs' son was a passenger, The Traction Company made no other defense to this suit, and the issues as between plaintiffs and this Company were thus finally established. It further appears from the record that plaintiffs, after the fraction Company's answer had been filed, made the Oil Company and the Traction Company co-defendants by supplemental petition, and prayed for judgment in solido against both defendants; that the Oil Company defended by exceptions to plaintiffs' petition and supplemental petition, alleging that same failed to show any cause or right of action against it. It does not appear from the record of this first suit that any judgment whatsoever was ever rendered upon the issues joined by the Traction Company's answer, or upon the exceptions pleaded by the Oil Company, A close examination and scrutiny of every document in the record fails to disclose any further judgment or decree, save that appearing to have been entered and signed by the Judge of the Trial Court, on June 7, 1921, which order resulted, on motion of counsel for plaintiffs, in the entire dismissal and discontinuance of .the suit. However, it is alleged by the Oil Company in the recora of the" cause now under consideration, and which bears the number 8386 of the docket of this Court (Ho. 3395 of the docket of the 28th Judicial Court of the Parish of Jefferson) that on April 21, 1921, there was judgment rendered in the aforesaid suit, Ho, 3213, maintaining the Oil Company's exceptions of no cause or right of action therein urged, resulting in a dismissal of the first suit as against the Oil Company. It 3s upon these facts - not denied by counsel for plaintiffs in either brief or argument that the Oil Company now predicates it3 preaent pleas of estoppel and r.es ad judicata, and in vrhich the Traction Company, by like pleas, have joined the Oil Company in similar defense. In considering the question now before us for adjudication, this Court will assume, though there is no record proof of the fact, that the Judgment cí April 21, 1921 was in fact rendered in the first suit in the manner alleged by the Oil Company, It will also be assumed that no written reasons for the aforesaid Judgment- ‘ n by the Court, this fact also appearing' to be £aeu> y all parties in their briefs.

It is a fair presumption,' Justified by the record" pleadings in the first suit, and fortified by well established Jurisprudence of the Supreme Court of this state, that exceptions of no cause of action suoh as were filed in the first suit, were directed against insufficient declarations of essential facts, rather than against want of declarations, the lack of-which, upon the merits of the .suit, would impel its dismissal, and bar recovery. In the absenoe of record proof to the contrary, it should be assumed that.the -Trial Court maintained the Oil Company’s first exceptions of no cause of action in the first suit for some suoh reason as .would have . Justified the Court in reserving to plaintiffs the right to amend, rather than to peremptorily bar plaintiffs' right to' " recovery against the Qil Company,

We are not in accord with contention of counsel for the Oil Company that failure to appeal from the judgment maintaining its exoeption of no oause of action was fatal to plaintiffs’ right,'while dismissing first suit, to again proceed, in. a new and seoond action based on the same demands.

Under definite Jurisprudence of this state, plaintiffs were Justified in dismissing the first suit, under the confidence that a new action could be brought against both parties made defendants in the oause now before us, -In the case of the Succession of Herber, 119 Xa. 1063, the.Supreme Court distinctly held;

"In many eases where an exception of no cause of action is filed, and the same is sustained, and the suit is dismissed, it cannot be ascertained' on • the face of the papers what the precise ground was on which the court's action was based. In such cases the party against whom the exception i3 urged is permitted to establish that fact by evidence de-hors the record, xxxxxxxxxxx xxxxxx
An insufficient statement by .an attorney of the grounds upon which the rights of his client are predicated does not carry with it under the law as a penalty that the actually existing legal rights of the client should be absolutely cut -off, At -the furthest, it throws the- clients out of court, but - under the right of renewing the attach under allegations sufficient, if proved, to warrant and Justify a Judgment. A Judgment throwing plaintiff out of court solely for want of certain allegation» in his petition can certainly .not be held to prevent his invoking the aid of the courts in his behalf when he subsequently files a petition containing all the allegations needed to sustain a cause of action."

In the case Just quoted from, the court went on to say that in affinning the lower court's Judgment dismissing the suit on a previbus appeal, under exceptions of no cause of action, that it did not consider there was any necessity for a reservation of the plaintiff's right to bring a new suit with proper allegations. It also quotes with affirmative approval Hart & Oo. v. Bowie - 34 Ea« Ann,.326 - reading:

"In that case we said:
'We note the suggestion of plaintiffs that the Judgment be amended so as to make it one of non-suit. The. Judgment, being one of dismissal on exception, adjudicates nothing on the merits, and does not debar plaintiff of the right of filing another action for the same relief.*"
See also: Gould vt- Railroad, ?1 tr.S. 626. , Tie 11s on Res Adjudieata and Stare Decisis, Sects., 13,1.8; Id,-p. 370, et seq, Soots. 446,447,

The same ruling was nade, in Banahan v. svarva, 146 Xa. 906, where the court said;

"If, then, the first petition would have disclosed a cause of action if it had alleged- that Svarva was not an innocent purchaser, it is clear that,'as -the second petition meets that requirement, it disclosed a cause of action, and that neither the exception of res Judicata, filed in the second suit, and based upon the maintenance, in the first suit, of the exception of no cause of action, nor the exception of no cause of action,filed in the second suit, was well founded,"

Counsel for the fraction Company contend that plaintiffs' dismissal .of the suit Ho. 0213 constituted an abandonment of the claim against the said Traction Company, and that plaintiffs' acquiescence in the decree discharging the Oil Company by whose fault the accident happened, operates as estoppel in favor of the Traction Company, even if it were Otherwise legally bound. We see no merit in this contention. Plaintiffs' supplemental petitions in the first suit in no manner allege that the Oil Company's actions were the 30le or proximate oause of the accident, nor do any of plaintiffs' allegations in that suit show intention expressed or implied to release the Traction Company from liability. It cannot follow therefore that this dismissal of the petition as against the Oil Company could have in any manner carried with it a dismissal of plaintiffs' action against the Traction Company. The ruling in oase of Muntz vs, Algiers.Ry. Company, et al., 116 la. 238, oannot govern here. In the cited case it was held that the judgment in favor of the lessee company (a co-defendant) on the merits and upon grounds not personal to that company was a bar in a subsequent suit on this same oause of action against the lessor company. There are no such facts in the instant case.

We are of the opinion that the maintenance of the Oil Company's exception of no oause of action, and the dismissal or withdrawal of the whole suit in the first case was in no manner a bar to the institution of the second suit now before us. This Court in the case of Illinois Central R.R. Co., v. H.O. Terminal Company, 14 Ct. of App., p. 310, has held as follows:

"Maintaining an exception of no cause of action, based merely on defective pleadings, and not going to the merits of the controversy, does not form the basis of res adJudicata, Hence it is proper under such exception to simply non-suit the plaintiff; or the case may be remanded to allow plaintiff an opportunity to amend." - (Affirmed, 143 la. 407).

April 10, 1922.

We are of the opinion that the judgment of the l'rial Court maintaining the pleas of estoppel and res

adjudicata and dismissing plaintiffs'suit, is erroneous, and should be reversed.

It is therefore, ordered, adjudged, and decreed that the judgment herein appealed from, be, and the same hereby is reversed, at appellees' costs, and that this cause be, and it hereby is remanded to the District Court, and reinstated on its docket to be there proceeded with according to law.

REVERSED and REWARDED.