author: Dlnkels-plel. J.

text:
    Leo Fellman. -vs- Mrs. Isabel Smith.
    No. 8068.
    Court of Appeal. Parish of Orleans.
    Binkelsplel. J.
   Dlnkels-plel. J.

Plaintiff claims that defendant is indebted to him for commissions earned under a contract made with her for the sale 04 property belonging to a Mrs. A. Baldwin in the sum of §570.00, together with legal interset from judicial demand, ten peroent Attorneys fees and all costs of Court.

That on June, 11th, and for sometime prior thereto, plaintiffs real estate agency had listed with it for sale the residence No, 3634 Prytania Street, the prpperty of Mrs. A. Baldwin.

That on June 11th. 1930 a representative of plaintiff's office visited defendant and procured from her a signed offer to buy the said property at a price of |19.000. which offer was written and signed on one of the blanks usually used by plaintiff, and whioh said offer stipulated that it should remain good and irrevocable until 15th. June 1930.

Plaintiff alleges further, that immediately upon the submission of said offer to Mrs. Baldwin, the owner of the property in question who accepted same on June 14th. 1930, prior to the experiatio» of said offer, and prior to any off orts on the part of said defendant to revoke same, said acceptance being endorsed upon said offer in writing, sig ned by Mrs. Baldwin, containing an agreement signed by her to pay plaintiffs commission of three per cent on the purchase price..

Plaintiff notified defendant of the acceptance of said offer by Mrs. Baldwin and called upon her to deposit the sum of §1.900. being ten peroent of the purchase price, in accrodance with the terms of said offer. That defendant expressed thereupon her^jííílingnass to comply with the terms of said agreement which had rippened into a oontraot through it's aforesaid ax acceptance by Mrs. Balwin, and requested Mrs. Baldwin to release her thereunder, and Mrs. Baldwin although entitled under the law to enforce her oontraot with defendant elected not to do so releasing defendant from her obligation under nai& said oontraot to purchase the residence aforesaid.

That the offer signed by defendant and accepted, upon the usual form used by plaintiff in connection with his real estate offioe, oontains the following stipulation; " Should X fail to comply with the terms of this offer if accepted, I obligate myself to pay the commission and damages". That by virtue of the terms of said stipulation, the defendant on aooount of her failure to comply with the terms of her accepted offer, became obligated to pay palin-tiff his commission and damages, this commission being three per cent upon the purchase price $19.000,, or $570. according to the termd of Mrs. Baldwins acceptance of the said offer, and according to the custom and practice prevailing among real estate agents and brokers in the City of New Orleans.

That demand was made upon defendant for the payment of this commission to plaintiff, and that as a result of said demand, the defendant shortly thereafter called at plaintiff's -office for the ostensible purpose of discussing with one Charles Rosenberg, a member of plaintiff's offioe force, the claim made against her for this commission. That whilst defendant was discussing thiB matter with said Rosenberg, she suddenly, violently and unexpectedly, seized the written and signed offer and acceptance, described in the petition, which had been handed to her for inspection, and which was then lying upon the said Rosenberg's desk, tore same into pieces, before she could be inteffred with or in any way restrained, xnnsd rushed out of the office before she could be stopped, carrying away the written and signed offer and acceptance with her torn into pieces.

That on account of the fact that defendant , ±hax has abstr -acted the aforsaid signed written offer and acceptance from the office of plaintiff, without the consent of plaintiff, and had torn same into pieces, and carried same away with her, torn into pieces, plaintiff is not able to annex the original to this petition, hut in lieu thereof annexes a copy.

And finally claims th^t he had made amicable demand for the payment of the commission due him by the defendant in vain; that being obliged to sue and employ attorneys to recover his commission is entitled to recover a reasonable amount qt attorneys fees, ten per cent, upon the amount sued for,under the stipulation in the said offer signed by defendant, obligating herselfl. to pay the commission and damages if she failed to comply with her offer of its acceptance.

Plaintiff prays for ¡Judgment in the full amount of the claim, as stated, together with Interest, attorneys fees at ten per cent and all costs.

To this petition defendant filed exceptions; first, that the petition is too vague, general and indefinate to enable defendant to safely answer; and, second, that the petition discloses no cause of action. Hence she prays that the suit be dismissed, and for Judgment in her favor.

The contract in question is annexed to and made a part of the petition, and reads as follows " Leo Pellman.

Hew Orleans, La.

Hew Orleans, June 11th, 1930.

Dear Sir:-

X offer to buy the residence 3634 Prytania St. on ground measuring about 135 by 136, more or less, subject to Homestead loan $15,000. or as per title, for the sum of Nineteen Thousand oo/l00 Collars-, on terms of all cash, balance subject to terms above....years credit as per Vendors lien notes.f> interest per annum, payable. secured by all usual and customary clauses. Mantles aiid chandeliers downstairs not inoluded in sale, but present owner will furnish mantels and chandliers and install in place of those removed. Taxes 1930 to be prorated.

Act of sale to be passed before purchasers.. ....Esq. H. P. within 45 days at expense of purchaser. Possession to be given subject to the present lease.

If this offer is acoepted, I will deposit 10 immediately with you as part of the purchase prioe, which deposit is to be non-interest bearing and is not to be ernest money; either principal hereto reserving the right to demand speoific performance.

In the event the title is not valid, this contract shall be null and void without prejudice however, to the commission which is erned upon acceptance of offer. Should either fail to comply with the térmi of this offer if accepted, I obligate myself to pay the commission and damages.

This offer is to remain good and irrevocable until June, 15th. 1930.

Signed- Mrs. I.Smith .

1817 Hapoleon Ave.

Mrs. A. Baldwin,

Y/e submit the above.

Signed- Leo Fellman.

by C. A. Rosenberg.

Hew Orleans, June, 14th. 1930.

Leo Fellman.

I accept the above offer and agree to pay you 3 fí commission on purchase price.

Signed- Mrs. A. Baldwin.

Tie have quoted the full' tenor contained in plaintiff's petition, and we have copied in this opinion the entire contract alleged to have been made in this cause with the signatures of all parties attached thereto, and we fall to find a single allegation in the petition which embrases, in our opinion, substantially part of the oontraot to which Mrs. Smith, defendant, is oited to he answerable, for the reason, that in the oontraot, "Subject to homestead loan 115.000.". There is nothing in the petition whioh avers that defendant failed in any way to oomply with the conditions of the oontraot, or that she made an endevor to do so. The allegations of the entire petition fail to state this fact, and to our minds, this fatal to plaintiff's cause.

A provision, as in this case, was a proviso, reading; as stated, "subject to Homestead loan $15,000.". Without it evidently the defendant could not, and never intended to have purchased this property, and without that there could be no liability on her part to plaintiff.

The Civil Code provides, Art. 3016.- "The broker or inter-mediatory is he who is employed to negotiate between two parties, and who for that reason is considered the mandatory of both.

Kird vs. New Orleans. 105 L. 226. " It is a familar rule of practice that an exception of no cause of action is held to admit for the purpose of trial thereof, the truth of the averments of the petition.

Conoeeding the matters of faot alleged, this plea tenders the issue on the faoe of the pspozc petition, that no case is presented entitling the plaintiff in law to recover."

Bouligny vs. Geary. 21 L. 642.- A peremptory exception that the petition discloses no cause of aotion, admits for the purpose of the trial of the exception that all the allegations in the petition are true, and no amount of evidence can have any influence in determining the question raised by the exception.

To the same effect is, Adams vs. Mouton, 1 Mc. Gloin Rep. Court of Appeal 310.

For the reason herein assigned, it is ordered adjudged and deoreed, that the Judgment of the lowere Court he, and the same Is hereby affirmed. Costs of both Courts to he paid by •plaintiff.

-Judgment Affirmed^


source: Caselaw Access Project

author: By his Honor John St. Paul.

license: Public Domain

text:
    NO. 8069.
    AUGUSTA MOORE VS GRAND LODGE, KNIGHTS OF PYTHIAS (COLORED) (LUCY MOORE, INTERVENOR )
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor John St. Paul.

The defendant is an incorporated Fraternal Association, the object and purpose^ of which are declared to be, "to give aid and assistance to its members in oase of sickness, and to provide for their burial in case of death; also to provide relief for their widows and orphans, or other relatives, or those dependent upon its deceased members xxx." rfhieh relief, according -to its by-laws, "shall be paid to the beneficiary or beneficiaries named in the - policy."

Defendant admits that it owes $400 as a death benefit under a polioy issued upon the life of one James Moore, in favor of "Lucy Mbore, his wife". I3hioh benefit, however, is claimed by both Augusta Moore, the plaintiff, and luoy Moore, the Intervenor; each claiming to be the lawful wife of the deceased.

The issues presented are these; The intervenor fber-fieiary named) denies'that the-deceased, whom she married, was the same man who married plaintiff; and avers that in any event she knew nothing of the prior marriage. Plaintiff claims that the deceased was her husband and that, the intervenor knew this when she married him.

I.

Many \vitnes3aa were examined as to the identity of the deceased, their evid'nce hoing apparently conflicting, hut not really so, for it can readily he reconciled; and the facts are simply these; The deceased was evidently named James^Moore, and was originally from this city, where he was generally known hy the name of James Moore, living hy hard manual labor, he worked where work could he had;.and thus at times found himself in different places. In the year 1890 he was working in Jefferson County, Alabama; and there in that year he vías married to Augusta Stone, the plaintiff, under the name of Monroe Moore. In 1898 he returned to this city, his wife following him some years later; they lived together for a while and then seperatod. In 1908 he was married in this oity to Lucy Carter, the intervenor, under the name of James Moore. Henoe this law suit.

In that connection the trial judge says, "The evidence in paft corroborates the idea that Monroe Moore and James Moore were the same person." But to our mind the evidence is conclusive; for some six or eight disinterested, and apparently reputable, witnesses affirm that the deceased, at Various times, presented plaintiff to them as his wife; and there was one who was present at the marriage in Alabama and cama hera with him in 1898. Whilst the other wltneSas aimply say that they knew him here long before. that, and that here he was generally known by the name of James; but vney do not pretend to say with certainty that he was -not away from here between 1890 and 1898.

XI.

As to the other point, towlt, whether luoy Barter know of the first marriage, the trial Judge says, "Augusta Iioore, swears that she informed Luoy iioore, but this is denied by the latter"; and there is not another word of testimony on the subject. Ihe trial judge evidently believed that luoy was in good faith, for, he sayB, "it (the evidence) further shows that luoy Iioore was at the very worst a putative wife ". ÚLxí in addition to the presumption of good faith, we find some oorroboration of this in the testimony of one Harrison, a witness for the plaintiff herself, who testifies that in 1918 plaintiff rented from him under the name of "lira. Blokham", and lived within a-hlook of where the dooeased was then living with luoy iioore as his wife; and yet plaintiff said nothing to him.

We therefore agree with the trial judge that luoy iioore was in good faith; and henoe under the provisions of C. 0. 117, 118, she is entitled to all the rights of a lawful wife. And the policy being in her favor she has the same rights thereunder as Augusta lioore would hare had if the policy had heen taken out in her own favor.

June 13th, 1921.

Ihe authorities oited hy plaintiff have therefore no application, towit, that a policy in favor of a man's conoubine oattnot be enforced to the prejudice of his lawful wife and children.

The judgment appealed from is therefore affirmed.

Hew Orleans la,


text:
    NO. 8070
    FRANK LOPEZ. VS ALCIDE CHARLES.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIRIQH,

By his Honor John St. Paul.

Defendant's automobile truck driven rapidly, or slpwly (as you please), ran into plaintiff's oarriage on a oountry Joad. The night was very dark; the trüiok admittedly had no lights, and the only question is whether or no the oarriage had lights.

plaintiff and his wife swear that the oarriage had lights; Mr. and Mrs. Oashman, who were with plaintiff, also swear that the oarriage had lights.

The driver of the truck and one Downey who passed the oarriage on the ;road, swear that It had no lights. Defendant swears that when plaintiff stopped at his grocery before the accident, the oarriage then had no lights, and plaintiff tried to borrow one (which plaintiff denies). Walter Fisher swears that after the accident Mrs. cashman told him the # Carriage had no lights; and billy Smith swears that after the accident Mrs. Dopez told her the oarriage had no lights.

That is the sum and substance of the testimony on that head; and the District Judge, who saw and heard all the witnesses, believed those for plaintiff and did not belielre the others.

His appreciation of the testimony is entitled to great weight; and we do not see that he-erred.

May 30th, 1921.

XI.

Thar* was soma testimony to show a compromise, hut in our opinion it shows nothing more than an endeavor to reach a settlement, whioh however was never completed. Moreover it was not reduoed to writing and hence could not he considered in any event. 0. C. 3071.

III.

The trial judge allowed plaintiff $35, the value of his ruined harness; and $100, the amount which a blacksmith charged to repair the carriage (not yet paid because plaintiff has not the money, and for which the blacksmith still holds the oarriage). Be also allowed $20 for one weeks loss of wages, and $50 for pain and suffering; in all $205. The amount allowed appears to us neither excessive nor insufficient, but quite proper; and we shall therefore not disturb it.

The judgment appealed from is therefore affirmed.

Hew Orleans, Xa,


text:
    NO. 8074.
    STATE OF LOUISIANA. EX REL ROBERT E. COURTIN VS DR. A. O. BROWN. MRS A. O. BROWN AND MEMBERS OF THEIR FAMILY.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    Claiborne & Dinicelopiol, Judges.

      December, 1920.
   i o I * t Ü

let writs of habata aorpuc issue ha rain as prayed for and aaeardtgg to i*w directed ta Dr. A.O. Brome and Urs. A.O. Broma and the taenhara at thair household residing at #38 Rountoinobleou .Thrive in the City of Hew Orleans eanannding then and a&tih of tiara ta bring and producá the relator Marguerite lunilla Browne Courtin hedawe the Court of Appeal for the »nri«h of Orleans, and to thore and then «how (muse dC relator is detained and why relator should net he at ones released and turned, over to the care and custody of Robert R Courti^hei^ne tujal tutor, and lot said write he sude returnable on tha^mtvuty day of at y-olccv ^ 'f*>

Hew Orleans, Za,


author: Elnkelspiel. J

text:
    Dejans Transfer. Inc. -versus- Schmidt & Zeigler.
    No. 8075.
    Court of Appeal. Parish of Orleans.
    Dinhelspiel. J.
   Elnkelspiel. J

Plaintiff institues' this suit against defendant claiming an indebtedness of $497.,50, arising from the fact alleged, that on the 13th. September, 1919, plaintiffs team consisting of a spring wagon with one mule was driven by one of the empoyess of plaintiff, on Water Street, in the City of Hew Orleans, near the Louisville & Hashville Railraod Sheds, between Julia and Girod Streets, and that while said team of plaintiff was proceeding in the direction of Girord Street from Julia Street, on Water Street,or river front roadway, and when at a point near the middle of said block, plaintiff's driver saw an auto truck approaching from the opposite direction at a rapid rate of speed, that said driver in order to give defendants driver room to pass, brought his team to a stand still; defendants truck was about fifty feet from where plaintiff's mule and wagon Stood. That defendant's driver did not slacken his speed and passed plaintiff's mule and wagon on the right side of said mule and wagon, and in so passing plaintiff's mule and wagon, said truok struck the right shaft of plaintiff's .wagon with such force as to knock plaintiff's mule doen and break plaintiff's wagon.

That there was room for defendants driver to have pftssed plaintiff's mule and wagon with savety, but said driver was guilty of reoklessness and want of care in striking palin-tiff's mule and wagon, and said accident happened entirely through the fault, recklessness and negligence of defendant's driver and through no fault or want of case and caution on the part of plaintiff's driver.§. and as a result of the mule being knocked down and injured it was necessary to place him in the oare of a Veterinary Surgeon for treatment where he remained eighteen days, subsequently going into pasture, and after being there for a while removed to plaintiff's stable where he was properly attended to, fed and oared for, itemizing the amount of money expended for the Veterinary, for the killing of the mule, which subsequently died, for the pasture of the mule and for other necessary expendes' in all amounting to the claim as specified and set out by plaintiff, and for which demand Judgment is prayed for.

The defendant denies that it's truck was travelling at an unlawful and reckless rate of speed, and avers, that plain tiff's driver drove his mule and wagon in such close proximity t4 the truck of defendant that it was impossible to avoid strikeing it; that said accident was duly etirely to fault and negligenoe of plaintiff's driver; that defendant's driver did everything in his power to avoid the accident, and the injury to plaintiff's mule was not the fault or negligence on the part of defendant's driver.

Denying further, damages claimed, particularly for the loss of the mule and repair of the wagon, and therefore parys for a dismissal of this cause, and judgment accordingly.

The testimony in this case is confined mainly to the driver of plaintiff's wagon, and he, in may respects oontradicts himself as to the position of his w?,gon and the position of defendant's truck.

He says: " I left the railroad and pulled on the side. There was box oar on the side of my wagon; the defendant's truck was oomdng about fifty feet from me when I stopped my wagon so he ran into me, and hit the shaft and threw my mule down".

In answer to a question by the Court, this witness goes on to oa#:- The truck struck him in front, " and he went about 80 feet from me before he stopped; it hit into the shaft’’. Again; - Q- Was there any room on your right side for him to pass without hitting your wagon? -A- Yes.

Or Was there room enough? -A- There was enough room.

The Court:- Q- What street was that on? -A- Water Street.

Q- That Is the front street out there on the levee? -A- Yes.

Q- That Is where all those trucho are? -A- Yes, Sir.

Q- Is that street paved out there with those heavy blocks?

A- Yes, It has the rook, as you have on Chartres St. Belgin blook.

He goes on, and testified; that the wagon stopped in the middle of the block from Lafayette Street, and the driver of defendant truck turned from Lafayette in to W*6Br Street.

<1- You oould not pull further on the left?

A- No, Sir; beoause I was up against the box oar.

Q- But that was not the right side for you to be on, the left?

A- I don't know about the right side or the left side there; there was a switch engine coming behind me; I oould not get on the right side beoause of some box cars.

Q- If you had given him room to pass you on the right, youx would have been on the right hand side of the roadway?

A- I oould1 nt go to the right on account of the railraod, there was whole lot of wagons unloaded.

Q- How did you expect him to pass on your- right side?

A- He oould have passed beoause he was coming up.

Q- Well, the space was exactly the same whether you .went up or down?

A- On aooount of another box car, I oan't say exactly the distance, if I had gone in there I would have blocked the road and a freight train would have caught me on the track» the train coming behind me.

§- But if you had gone on the right he could have continued on your left? -A- I could'nt because I had Just pulled away from the railroad.

Q- Why did you pull over there? -A- I had got a couple of packages from the railroad and had to put my wagon out of the way.

The next and only witness for defendant was Charles Mutin, who at the .time was the driver of defendant's truck. He goes on to say, that the accident oocuxred by the L. & H. Railroad, on Front Street, and when he came out Lafayette to Front, he slowed up and turn on Front Street in the direction of uptown, and when came up Front Street he drove to the right side of the street, and that was the only wa$ to drive. He first saw this wagon on Front St. about 50 or more yards from where he stood, and it was on the right side.

Q- When plaintiff's driver stopped what did you dot

A- I continued when he stopped. I swung to pass him, but the street being wet, the back part of the truok hit the mule and broke the shaft; it had been raining that day.

Q- Did you try to pull out of the way as soon as you saw the driver of plaintiff's wagon stopt -A- Yes.

Q- Did you use every means at your command to get out of the wayT.AXbe -A- Yes, Sir.

And he also testified, that he was going at the usual speed, 15 miles an hour, and he was pulling out of the tracks in order to try and didge plaintiff's wagon.

Q- If plaintiff's driver haa been on the left side of the road would you have passed him without striking him? -A- Yes.

We have thus given the main portions of the testimony Of both drivers, in order to show, from their statements, the situation at the .time this aooident occurred.

It is evidence to our minds, that if plaintiff's driver had turned, at the time he first saw defendant's truok, to would the left, as he should have done, this accideno wsul never have occurred.

It is further satisfactorily proven, that defendant's this driver did everything in his power to avoid *h«aooident, that he was where he should have been with his truck, and that he was under the belief, as he sould have been and as he had a right to be, that plaintiff's driver would move his mule and wagon, as he sould have done, and thus an accident would have been impossible, but we believe that the driver of plaintiff fearing the the engine with the steam oar might strike him and do possibly a severe injury, he backed up against the box car, as described by him in his testimony, when he should have driven to get out of the way of not only this truok but others in similar position. If there was any negligence, and there was not in our opinion, it was the negligence of plaintiff's driver and not of defendants driver.

For the reason herein assigned, it is ordered, adjudged ahd decreed, that judgment of lower Court, be and the same is now affirmed. Costs of both Courts to be paid by plaintiff.

-Judgment Affirmed-


text:
    William A. White. -vs- A. F. Johnson.
    No. 8084.
    Court of Appeal. Parish of Orleans.
    Iinkel3fiel. J.
   This litigation substantially presents for decision aithe following facts;

Plaintiff alleges that he is tne owner and landlord of the premises Fo. 3515 Lilian Street, in this City. That he fented said premises to defendant under a written lease, dated /.ugust 14th. 1919. That the lease commenced to run September 15tn. 1919 and expired on September, 30th. 1938-'; tnat before the expiration,of said lease plaintiff notified defendant to deliver the said premises to him on September, 30th. 1S30, and also, previous to the expiration of said lease served # required notice upon which to base ejectment proceedings; but defendant failed and refused to vacate said premises, still occupying same, claiming that he had leased the premises for the year ending September 30th., 1931, at a monthly rental of ¿43.50. making a total of ¿510.00.

of the possession Plaintiff further avers, that the value/of eaid premises now, is $ 150.00. per month, for each and every month that defendant continues to occupy tne said premises exclusive of tne damages oaused plainti ff by the failure of said defendant to deliver said premises formally at sue expiration of said lease September, 30th. 1930, and therefore, he is entitled to the summary prooeeding provided by law for tne ejectment of a tenant by a landlord, and finally prays that defendant be cited and ordered to appear and answer this petition on a day tc be fixed by the Court, according to the summary process fi,xsd by law, that after due proceeding had tnsre be judgment in favor of plaintiff, and against defendant ejecting him ircm the aforesaid premises, and for costs and general relief.

The petition is sworn to and an order was rendered a.8 follows

" Let -Sis defendant be citad to appear summarily on Friday, Ootober, 37th. 1920, at 11 o'clock, A. I£. and than to show cause why the relief sought in. the foregoing petition should not he granted^" Signed, fcrtcr Ps.rker, Judge.

Kb answer sworn to oy defendant admits tne signing of the lease as alleged by plaintiff, and alleges further, that the petition of plaintiff which charged that Cicero A. Ramsey, his agent, servad on him, defendant, a ter. days notice to vacate the premises, hut denies that the notioe so served was a lsgal notice, within the meaning and contemplation of the law. Hut, avers, that on August, lith. 1919, he leased the premises Sc. 2515 iiilan Street, from the agent cf plaintiff, Cicero A. Ramsey, the said lease 'cegining September 15th. 1919, ending September, 30th. 1920, at a rental of ? 32.5C. per month, payable monthly in rent notes; that before the expiration of said lease, Cicero A. Ramsey, t_en and at all times prior thereto and since, acting as t..s agent for said plaintiff, communicated with defendant to ascertain if defendant desired to renew his lease, and upon being assured by defendant in ths affirmative, said Ramsey, under date of July Sth. 1920, offered to defendant is renew in writing to renew said lease fer another year commencing Ootober, 1st. 1930, at a rental of ," 42.50 per month, payable monthly; that in response thereto, defendant accepted in writing, under date cf July, 14th. 1930, the offer of renewal made to him as aforesaid, and latter transmitted to said Ramsey, as ths agent of plaintiff, twelve rant Jiotes, each for - 43.50., being the monthly rental •l0r ear unaer *i:e lease, whioJ defendant had renewed as aforesaid; that said Ramsey, acting as such agent, arbitrarily refused to accept said rent notes, pretending that he had the right to withdraw -is previous offer, to the disregard of defendant's rights, resulting from his timely renewal of the exist -ing.lease for another year from and after it's expiration. Avering further, that he owes no rent, is not otherwise in default, is in lawful possession of the premises now sued for. therefore, he asks for judgment.

The evidence in this case in so far as it concerns both plaintiff and defendant is contradictory and unsatisfactory, and were it not for the written evidence of facts as presented in the record it would be very difficult to arrive at a fair and equitable decision, but with the^testi-itiony we find little or no difficulty in ooming to a conclusion. anything like t-t

As stated in the petition and which is confirmed by the answer it is undeniable, that at the expiration of the ’written lease an offer by the agent of plaintiff was made at an increased rental of ten dollars per month to defendant,for a renewal of the lease for one year. In reply to that offer, defendant wrote a letter to, Hr. C. A. Ramsey, dated, SSe.w Orleans, La. July, 14th. 1930, reading;-

" In confirmation of my conversation of this morning, with your office, I wish to state that in view of the condition of premises 2515 Hilan, I think tnat the present rental of £32.50, is sufficient, and that an increase of ten dollars or 30/77 f- is positively extortionate. iiixsiyxsxiBXiisnaiEX However, as stated, I appreciate the fact that S'r. Landlord and lit. Real juBExatsxixsxiaai Estate Agent are now having their unrestricted turn at gougung the public purse and as there is no alternative, except that of living in a tent, which ,T have no desire to do, I hereby accept ¿rental of §42.50.
- I will take up personally with xrs. white the matter of repairs which I shall expect to be made." Signed by defendant.

It appears that at several interview between defendant and Rameey, the agent of plaintiff, pending negotiations and prior to the letter in question, a^ove referred to, that for some reason unexplain -ed after the receipt of the letter, receipt of which was denied by Ramsey, out a oopy of the letter was ■brought to his office, left there, and within a day at most two days thereafter, the letter here quoted accepting the terms sst Sir iansnagí in possibly not the language Mr. Ramsey, Agent, enjoyed, he, Ramsey undertook after receiving the twelve rent notes in question, to place rent signs on the premises, and in a subsequent interview with defendant alleged , that this house in question, which defendant had leased, h-had been leased to another tenant, Mr. Lamarie, during the progress of the various conversations and immead-iately after receipt of the letter accepting the terms of the lease enclosing twelve rent notes .complying with the obligation, and yet forsooth, notwithstanding this, which we are as certain of as anything which we could be, Mr. Ramsey undertakes to lease to another party, without consulting defendant, in violation of the arrangement made with defendant, positive in its terms, beyond controversy, so much so, that if defendant had for any reason sought to evade the responsibilities of this lease legally he could have been and would have been held for the entire rent. Under these circumstances it is utterly impossible to conceive how the Agent, Ramsey, oould have attempted to end the lease with defendant. There is no doubt in the world that Ramsey was the authorized agent of plaintiff; he had authority to make the lease, he was a real estate agent and his business was that of renting property. The property had been placed in his hands for rent for prior years; he had leased it to defendant the year previous; he was clothed with appearant authority to lease the property. C. C. 3000.

" Powers granted to persons who exercise a proffess4 ion, or fulfill certain functions, of doing any business i» the ordinary -course of affairs to which they are devoted, need not .he specified, hut are Inferred from the functions which these mandatories exercise.

" The principal is hound hy all tns acta of hie agent within the scope of the authority which he held him out to the world to posess." Henderson -vs-E. E. 3 Court of Appeal. -±3.

" Where the owner has entrusted his property to a general agent as a factor or consignee in the hope of selling such property, he is estopped from olaimimg the property in the hand of an innocent purchaser." Meyer vs. Lambeth, 5 A. 66. 13 A. 453. C. C. 2683. " Leases may he made either hy written of verbal contract."

n The authority to make leases may tnerefore he verbal as well as written."

* The verbal contract is binding without writing". 30 A. 50. same authority at page 117, Corbin vs. Harding. 10 La. 225. 52 A. 424. 116 La. 338. , and the unreported case of Mc. Williams vs. Reith, Jr. Ho. 7901, Court of Appeal. We there held, as we do here; that it has seen proved to our entire satisfaction, that the letter quoted and a copy of w,.ich was left with the agent, Ramsey, in this case, addres sed hy defendant to Ramsey, at his place of business in this City, and in one of the principal thorough-fares of the City, properly posted, stamped and mailed, was received hy Ramsey notwithstanding his expressed denial.

For the reasons herein assigned, in is ordered, adjudged and decreed, that the judgment of the lower Court be affirmed with cots against olaintiff in both Courts.

( Judgment Affirmed)


author: Dü-Jc-iopij.; j.

text:
    NO. 8085
    COURT OF APPEAL PARISH OF ORLEANS.
    WILSON & COMPANY OF LOUISIANA versus ERNEST W. LAPORTE
    Dinkelspiel; J.
   Dü-Jc-iopij.; j.

This suit insti fated by plaintiff against the defend nt, alleging th t cha letter is indebted, to the former in :hc full sum of $116.17, for goods, wares and roer-ch ndies soli ■ nd delivered to defendant in the month of if reh, lS/,0 .nd a detailed .'¡worn Itemized ¿'¡m tokens is «.nnrxei to pluintiff1 s petition.

Refer, van S was duly cited to appear and . nsi.er this petition, and fnilinp to do so, ¡judgment by default ...,e r.nderad ¡gainst him. In due course ..¡nd ait„r ls-2-1 lel.-ys defend ,nt h vin; iin.de no r pet ronce, default -t b..d ..r.d no new r or ot’n.-.r proceedings being filed by die defendant, the i. f-u.lt was confirmed -..id judgment signed for the aiuount .s prc-yed for -p..ins 1 che deísudont.

From chic judgment there is this appeal.

Cole of Pr-decioc, Arciole 310. "If the defendant do not a. pe-r either in person or by his =...vuc..Ce after the delay provided-by l.~v; the plaintiff ;.n y t.hs judgment by default ugalnct him."

The deísná-.-nt neither appeared in cor con or by counsel in the Court aquo nor in this Court.

Ve find that plaintiff had done everything that the l=v required entitling him to judgment ns prayed for.

Therefore judgment is correct.

For the reasons assigned, it is ordered, adjudged end decreed that the judgment of the Court aquo be and the seme is hereby affirmed, tho costs of both Courts to be paid by defendant.

-Judgne: firmed—


author: By his Honor John at. Paul.

text:
    NO. 8086.
    W. H. FISHER, ET AL VS DOCK LOADERS & UNLOADERS (INC).
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

By his Honor John at. Paul.

She defendant is an incorporated association or workingmen, and forma a "looal Union" in a wider association known as the "International longshoremen's Association."

Plaintiffs claim that they were illegally expelled from said looal Union; that they appealed tn due course to the higher authorities in said International Association, hy whom it ivas ordired that they he re-instated. That nevertheless the local Union refused to obey such mandate and to re-instate them; whereby they have been unable to find work. That the financial affairs of defendant have been grossly mismanaged by its offioers. 'wherefore they pray for reinstatement as members, for damagrs, and for the appointment of a reoeiver.

The defendant filed an exception of no cause of action, which the trial Judge sustained.

IYe think the judgment appealed from is erroneous. Of course plaintiffs ere without interest in the appointment of a reoeiver for defendant unless and until they be reinstated as members; and they are not entitled to be heard on that issue at this time. But a member illegally suspended or expelled from an association has a double oause of action against it, one for reinstatement and another for tho damages he may have sustained.

June 27th, 1921.

Schneider vs Local Union, 116 La 270 Johnson vs Grand Lodge, 13 Orleans 311 Morrison vs Grand Lodge, Our Locket No. 7060

The other exceptions aro por'ups not before us, hut they seem to have little r.erit in then; except that plaintiffs should specify the amount claimed by each of them, and not lump theAr olaJmn together#

'fho Judgment app3i.lort f *om iá therefore reversed, and it is nov/ ordered that this case he remanded for trial in due course according to law and the views hereinabove expressed# Defendant to pay the costs of this appeal, and the other costs to await the final judgment,

New Orleans La,


author: Dinkelspiel, J.

text:
    Rosia Murray, Widow of John Joseph. -vs- U. S. Industrial Alcohol Company.
    No. 8096.
    Court of Appeal. Parish of Orleans.
    3IMKELSPIEL. J.
   Dinkelspiel, J.

This litigation present* mitt one single and solitary question) whothar or not, dofsndant* wara or wars not tha smployoas of dtosased, husband of plaintiff.

Plaintiff, Roola Hurray, widow of John Jooaph, ha dying In this City, on tha Slat, of Harsh, 1918. That at tha tins of hie daath and prior thereto, has husband, was in the employ of defendant oompany, the U. S; Industrial Aleohol Company, That ha was a ¡aployad aa a porter at defendant*a offloa, at Fardinand and Pina Streets, In the City of Haw Orleans, at tha time of hie death, and wae earnins the sum of #18.36. per week.

Plaintiff la informed, believes, and avert that in addition to hie duties ae portar, it had been tha ouetoa of her husband, getting the' orders and directions of officials and persona in authority and oon-trol of defendant oompany to return after hours for the purpose of going out with other workman in tha river to assist in tying up ships,- carrying oargos of molassea consigned to defendant oompany. That for euoh services, her huaband, working overtime resolved 60 per hour, averaging the sum of #3.30. per week. That her husband, ac porter both for work done in that capacity and for overtime work earned in assisting to tie up molasses Ships consigned to defendant oompany, an average of $31.70. psr weak. That on ths evening of Haroh, 31*t, ISIS, at about 8 o'clock,. her huaband together with two fallow workmen, noting under the orders and directions of ths supsrintendant. of defsndant oompany returned to said oompany for work,) that tha Steamship Cubad1st, loadsd with molassee, consigned to defendant company, had bean Informad and aba 30 avara, that har huaband and hie fallow workmen ware ordered to report book In order that when the whip arrived to go out in a oklff In the rivar, tla the ahip to the piling at the head of Ferdinand street, there being no wharf or pier at aald point.

That her hueband and hie fellow vorKmen following the ordara of the Superintendent of oaid company, a? had been the oustosi for eevsral yearn In the past, and receiving for aald extra work bOf par houT from until/ the time of reporting hie return to work-, the in-oomlmg ship had been moored to the piling at the head of Ferdinand Street and deoeaaed, her huaband, and his fellow workmen returned to the ehore.

Further alleging, that about 10.30. at night, on the aforesaid date, the steamship Cubadist arrived, and that plaintiff a husband and hla two follow workmen In the skiff had tied the headline to piling in front of doiendant oompany, and the deoe' ied and his fellow workmen had returned to the ship, in the skiff,to seoura the forward breastllns, with a heavy ooil of rope or haweer eo tnrown from the ship to the ekiff, landing on the skiff, causing same to bs capsized and her hueband and his companions to be thrown Into the river; that notwithstanding her husbands struggles In the water for sometime he finally s> sunk and was drowned. That all thie was dons under the orders and instructions of his superior officers and deceased In nowise contributed to hie own injuries and death.

That under the compensation law, plaintiff as a dependant upon her hueband, is entitled to recover from defendant company, compensation for the death of her husband, at the rate of §3.<12. per weak for 300 waste, and there is now post due her, plaintiff, ifca aa oomwen«ation from Viaroh, 313». 1919 to February, 30th. 1930, 43 Seeks, 8360.16.

She also allaged that aha le in neoeaoitoua oixoum-ataneao, unable to pay ooats of this suit in advance or an they aooi-ug or give bond, that she be permitted to file thia ault under the terms of Act No. 15Q of .against 1913, and finally prayed for Judgment/ag defendant company in the 3urn of 3260.16 past due aa compensation from 31at. March 1919 to 30th. February, 1939, with legal interest from date of Judioial demand, and the further sum of fl.365,84. in weekly installments of Í5.43, par week from February, 20th. 1920, from weak to week for 332 weeks, for general and equitable relief.

The answer of defendant virtually denies all the allegation of plaintiff a petition, except ae hereinafter admitted, aa follows,¿ Admite that deceased, John Joeaph, wae employed by defendant ooapany by the day, and wae paid at the end of the weak for the number of day's labor which he performed during the week at 3Q(í per hour.; that at the time of his death having oheoked out from his day's at 4.30. p. m. on Mnroh, Slat., and there after being employed and engaged with other laborers by the Master or Captain of the steamship Cubndiat, to moore and make fast said steamer to the pier, during which time and in oonneot-wii -ion with which employment said Joseph oaae to his death.

Admits, that deceased, Joseph, waa employed by defendant company by the day, but danise that he averaged ',18.20., but aver3 that us av ora gad usually El hcuro pur weak, Tor which he '.-.aft paid 30? por hour or £lb.30., the cmployi.'tnl being by tee day, and deceased being paid for the number of hours of work aotuaily performed par day.

Denies, fixits; further, that fleoaueed returned to work to receive overtime,,out avara the faot to ha that after he cheeked out after hie' days work, aas no longer in the employ of defendant, but accepted separate and distinct employment from the Captain of the steamer Cubadlst, for work wuicn the Captain desired him and others to perform, and that be •?as not paid for auoh work b-f defendant at the end of the week as overtime.

Further, denies, that deceased received directlcne ar.d crdsra from defendant's superintending denies he did not return to defendant for work in connection with his employment, ae said employment had ceased; that deceased had f requehtly earned money by tyin-; or mooring steamships which ware delivering merchandise to defendant company, but that employment was in nowise oonnectsd with tns employment of deceased with defendant.

Defendant admits tnat too deceased while working; for the Captain of the Steamer Cubadist, oame to uis death by drowning, in attempting to moora or tie up said steamship to the piling.

Defendant denies tnat at the tims of the aooldent that deceased was in the employ of defendant, or that his injurien or death occurred while deceased was per -forciimg gorvi398 si chav arising out oí inoiden--tal to ills omployuiont ‘by defendant company, hanc® prays for judgment and dismissal of plaintiffp suit.

On the trial of the case besides the testimony of plaintiff, who absolutely knew nothing safe and except that her husband was dead, ha worked as porter for defendant company, there was introduced several colored witnesses, Parkins, Lockaurn A Orozlar, and after these witnesses had tee tifiad, and after ths trial of the cane,-by oonoenb, two other oyiorad who vritnsasea, Brówn and David Joseph,/testified, and the substanoa of their testimony as we read it substantially confirms what defendant’s plea really la, to the effect that all theee men more or iesa, from tima to tiij.e, had'f/orked for the defendant company on various and different engagemante; that the deceased was a poner in the employ of the oompany,xafl and that on the night in question he was ordered by the Engineer of the Oubadlet* to go out in a skiff- in the river in order to tie up to the landing the Steamship Cubadiat, 90 that her cargo, which was entirely molasses, oould be pumped into defendant's warehouse, and that was the entire employment made by the steamship company and not by defendant company, and this was the universal custom , not only In this particular oase and for this particular steamship, but in all similar oases of a like character.

Wilfred Gasser, was the Engineer of defendant company; had been in their employ for twenty years; knew deoeaaed, John Joseph, who was the porter in the employ of defen'iant company, and in speaking of how defendant got it's molasses for the manufacture of Alcohol from the tank steamers he goes on to say; the steamer comes up under her own 3team, and three man In a skiff tie h»r \ip, they get ten dollars for that work and thay were paid by the Captain of the Steamship; never were employed for that purpose by defendant company; that defendant company never kno* when a Steamship cosie.s in for the purpose of tying to the wharf and unloading it’s product, but when they hear of it they employ men to'do simply the tying and nothing moro in order that the product can be pumped into the ship, but they have no connection whatever with the employment of getting these men and these men are paid by the Steamship making an independant fee and are ever seeking this employment for an extra compensation that they receive. That deceased, Joseph, received 30Í per hour for the work that ha did for defendant oomoany, and at the time when he mot his death the company paid him a full days 'extra wages in order to make the molasses connection, and in addition to that hs got ten doliere from the Captain of the Ship for tying and untying'the vessel, and deceased and all other workmen fully knew and understood the arrangement.

Q- If they are not there do you put a stranger in itT
A- T would have to have men to dp the work,
Q- There do the lines come from that ties the boat?
A- This boat?
Q- Yqb,
A- Trow the Cubad1st.
Q- Tho throws the lines?
A- The Mate attends to the handling of the lines and glues the orders.
Q- The lines are thrown from the vessel or chip, under orders of the Mate?
A- Yes.
Q~ And the Hats instructs these man where and hoar to tie? -A- Yes, Sir.
Q- Have Jou anything to do with it at all?
A- Ho, Sir; I oan't gibe them any order a.
Q- You have to wait until the Slip la tied up before you can make connection? -A- Yes, Sir.
0.- Could you jet the molasses without making connection with the tan inch hose? -A- Ho, Sir.
Q- You connect with t±m , what?
A- Hith the ships pipe, 1 have to pump it in the hose.

He goes on further to say that the Steamship Cuba-dist was lost and never heard from and this was admitted by Counsel for plaintiff.

Q- How, Mr, Gasser, the only extra time you .pay these men is the extra day? -A- Yee; for each connection.
Q- Is the payment by the Captain of tan dollars for tying up oharged to the defendant company?
A- Ho, Sir.
Q- In any way? -A- Ho, Sir.
Q- They have nothing to do with it?
A- No, Sir; they have nothing to do with it after i bring them baok, if the ship loft at 3 o'clock, for instance, and the men have to ooms baok, tiiay Just coma baok, tnoy don' t punch the card, they come baok for the purpose of getting ti.eir tan dollars-.
Q- How long is ú snip detained at the wharf to to unload the molasses?
A- It is between 36 and 38 hours.
¡i- So, the arrangement of deceased, Joseph, with the Captain of the Cubadle 6 the night h lost his life, and with the Captains of v prior to his death, so that ho would got ten dollars from the Oaptain for tying and untying ths vaaselt - A — Tea, Sir,

An oxaula&tlon of this rooord fully find "he!3y satisfies ua that this witness, Oauter, told the .m-rorniahad and atoolut-i truths thr.t Jnooc3al nor x.-.y of h) a oo-3.'’■borní-a «i-re at the time of th-> niV.ri'tin; of till* vessel lo fh-i .ai'.ioy cf 3. fend list oca,; <0;/, net or!7 in tbl.: orvoa, but in o.3 3 :ilmil -r c-i-:-s ard It lo i. grnyient osourroaoe, hone, the coro-rn ,-i.tlon «.ot hoa no affect lo thin oi.rUculor ce at:, because the dícersi-d ncr 3:i ■ fallo.. ”:orV".cn '.Tore ¡-cl er.ii>3 oyod by def endr.ns ooKoany v.t the timo síhen thl a unf or tunóte -,u~ cidor.t happened.

Ihn autSiorltlea oitad b7 plaintiff 4U, A. 4 Ü. An, Odiaos. 1294 - 131,073. ha-'o no applioption. It In the irr.'Hrl and net the oonir-ot'.wl 3.1..bill, ty o’ tusar ¡1 33 we31 an t.rpif in!.•?.! por ion i .i.hloh la troctal of In Che oiuptjr of the Ocla entitled, *0:'fc(is.o.¡ v.ni /I olf-m.’--t(S*, end it 13 founded on fv.ilt, ri<)"lic-r.o,.,1 i-'p-.u-lcnoc r.nd pent of ,s\t11, npl penstikutat, , r. act 1.1 >¿.'¿1, mi the ;h3lyst-ion cf the nnrilcir'snt ay 3.ltjry.

*A port:,' cllcfin:; .r.c! c? tr ::l¡,¿r;cc- i;a«.S prop9 the í-cne. fo t’ino’ sl’7 V "3:opal m the cl.'.pic '3i ip - cf a y'ii-S'.’CJc cv rt ?f -.'’.'.lit, jri~ o, ;y ■ :: ...c 1 . ,lu..i >*, ccflf’c

for the reasons heroin ar¡oU,T;cd, It It. mf" adjudged end decreed, th >t the judgment the lc;.or Ciurt ho and the 3-?r.-.c is harsby '> 1 rs.nJ .11tf -l.-; ■ ’Ir t . l-aa-tlfi In both Courts.

Jul;!i.c.c-it Affiriiad.


author: CHARMS F.CLAIBORNE, JUDGE.

text:
    Charlea F. Claiborne, Judge.
    G. Peraino, Appellant vs Octave C. Plauche
    No. 8098
    February 7th, 1921.
   G. Peraino, Appellant vs Octave C. Plauche

No. 8093

Appeal from Civil District Court, Hon. Fred D. King, Judge.

CHARMS F.CLAIBORNE, JUDGE.

This is a suit for possession by a landlord against a tenant. The 3uit was filed November 17th, 1920.

The plaintiff alleges that by an aet under private signature he leased to th§ defendant a certain store for the term of twenty-four months beginning November 1st, 1918 and ending October 31st, 1920; that by the terms of said lease the lessor granted to the lessee the privilege of renewing said lease for a period of two years, provided the lessee notified the lessor in writing before October 1st, 1920 of his intention to renew said lease; that said lessee has never notified the lessor of his intention to renew; that the lease has expired, and plaintiff is entitled to the possession of his premises.

The defendant admits the lease, and his privilege of renewing the same, and his obligation to notify the plaintiff of his intention to renew the same; but he denies that he failed to give said notice; he avers, on the contrary,- that on September 5th, 1920 he gave the plaintiff a written notice of his intention to renew the lease. He prayed for judgnent dismissing plaintiff's suit, recognizing his rights under the lease, and compelling plaintiff to execute in his favor a lease in accordance with his contract.

The Judge of the District Court found that the notice had been given and the lease renewed, and dismissed the suit. The plaintiff has appealed.

The clauses in the lease pertinent to the questions presented are as follows:

"The lessee agrees to notify the lessor or his agent in writing on or before the first day of October 1920 whether or not he wishes to retain the premises for one or more years from the expiration of this lease. The lessor hereby ¡grants to the lessee the orivilege of renewing this lease at its exoiration for a Period, of two years under the same conditions, stipulations, and rental as are herein stated".

The lease is signed "Joseph Peraino by Philip Peraino”, in the hand of one with little knowledge dr habit of writing.

The defendant testified that when plaintiff's son, Peter, came to collect the rent, he (defendant) handed him a sealed envelope addressed to the plaintiff, and containing the following notice:

"New Orleans, La., Sent. 4th,1920.
Jos. Perino, Esq.
Dear Sir, This is to notify you that my Lease on store and Residence No.523-525 St. líaurice Ave. Expires on October 31st, 1920 which allows hie the Privelidge of Two more years which I wish to be renewed on same terms & conditions you will kindly have Papers ready to be signed at your Eerliest conveniance";
Yours Resp
"Si'pied" Chas.Pluche"

Just after' he had given it, the son Peter went hone and came back in ten minutes and threw the notice on the show case and told him that his father said that he did not want this¡that there was plenty of tine to act on this; he (defendant) told him it was a notice to his father that he wanted to renew the lease; the plaintiff resided next d>or to the defendant.

Two disinterested witnesses corroborate the defendant's testimony. One of the witnesses remembers the date, September 6th, because it was "Labor Day"; the other read the notice returned by Peter.

The plaintiff denies having received any letter or notice; but he can neither read nor ''/rite, nor sneak English.

Peter Peraino, twenty-four years old, son of plaintiff, collected his father's rent for September and October; defendant called him over to get it; be docs not know how to read or write, and does not know the months; the defendant did not ¿rive him any papers, or letter, or envelope, and he did not bring back any to him; nor did he bring back any message to him from his father; when the defendant paid him the rent, he brought it to his father.

Josephine Peraino, sixteen years old, a daughter of plaintiff testifies that she knows how to read; if her father received a letter she would read it; 3he got no letters to her father to read; she never saw this notice before.

John Peraino, nineteen years old, a son of plaintiff; when a letter is received by his father either he or his sister reads it; he never saw this notice before.

The testimony of the defendant and his two disinterested witnesses that the notice was sent must prevail over that of the defendant and of his son, Peter. According to a long estab* lished rule, the trial judge saw the witnesses and heard their testimony. His long experience carries great weight with his judgment. This Court will take judicial cognizance, besides, that, on or about September and October 1920, rents had increased in price very much, and that it was in the interest of lessors to terminate leases. But the jurisprudence is with the Judge. In the case of Widow de St. Romes vs Carondelet Canal, 24 A., 331, the negative testimony of the olaintiff and of her two sons vías considered insufficient to destroy the affirmative testimony as to the service of a citation.

In the case of Singer vs Carondelet Canal, 39 A., 484, the Court said:

"He (defendant) denies having received the letter, but a witness swears positively that he handed -'it to him, and we are inclined to believe his statement, as he is without interest in the suit".

See also 13 La,, 412; 51 A., 1048; 141 La., 132; 34 A., 8; 23 A., 501.

Plaintiff argues however that the njtice, even if given, was without effect, because it was served on September 6th, a legal holiday under Act 121 of 1920 p 173. There is no article the Civil Code, nor in the Revised Statutes, nor any law which makes it illegal for any party to notify another that he accepts an offer to wake a contract, or to make the contract .itself, on any legal holiday. Article 207 of the Code of Practice applies to judicial proceedings exclusively. It says:

"Mo citation can issue, no denund can be made, no proceeding had, nor suits instituted on Sundays &c When the question of the validity of judicial adver-

tisements of sales on Sundays was raised in Schenck vs Schenck, 52 A., 2105, the Supreme Court said:

"To make such advertisement on Sunday unlawful the law must expressly so declare. It has not done so".

We have an expression of opinion upon that subject from our Supreme Court in the case of Keller vs Mc Calop, 12. R. 642. The Court said:

"In support of the objection that the will was executed on a Sunday, Art. 207 of the Code of Practice, has been relied on. It provides that, on that day, and certain others therein named, no citation can issue, no demand ern be made, no proceeding can be had, nor suit instituted &c".•

* This enactment relates, in our opinion, only to judicial proceedings; but it does not we apprehend, prevent a citizen from 1 SS marrying, or making any other contract on those day3.

In support of his objection plaintiff refers to the cases in 71 S. E., 678; 200 Mass., 514. As was said in Schenck vs Schenck, 52 A., 2105:

"Certain cases in other jurisdictions have been cited as sustaining a contrary view to that taken herein. But they are found to rest upon the terns and construction of local statutes'*"^

prohibiting certain acts on Sundays.

As the notice given in this c.ase does not partake of the character of a "judicial proceeding" we are bound to hold that the service of it on a legal holiday was valid.

The plaintiff is correct in his position that this Court cannot compel him to execute and sign a lease to the defendant. C. C., 1926 (1920), 1927 (1921); 114 La., 365; 134 La., 708; 49 A., 872; 45 A., 905; 124 La., 869; 122 La., 851; 48 A., 1414; 46 A., 712; 55 A., 1126.

In the case of Citizens Bank vs Jones, 26 La,, 264, the defendant had promised to buy iron the plaintiff a certain plantation upon payment of o. certain amount cash and tie balance in the stock note of the defendant. The plaintiff prayed for judgment for a specific amount ~rd that defendant be condemned to accept the sale of the property rr.to furnish his stock note. The Court held that the defend: r:t could r.ot bo forced to a specific performance of those obligations; th"t J he remedy was ir. dimuges.

In 43 A., 13, Laroussini vs Worlein, the Court held that plaintiff, lessor, '’oulf. not ask that the defendant, lessee, be compelled to si r. a. contract of le^se end :i>tes; th.-.t :e could ask only for damages.

In Mimrandona vs Burg, 49 A., 353, the defendant had screed to sell to the plaintiff the contento of a yoeery store, at a price to be fixed by. two appraisers to be selected by the parties; the defendant to lease the property to the Plaintil for five years, with the a'ivilege of buying it at an anorr.ised value. Plaintiff sued for specific performance. The Court held that it could not compel the physical performance of those acts by the defendant, and dismissed the suit.

But the relief asked by defendant in the case under consideration is not one for specific performance. The defendant avers thet he hn.d the privilege of renewing a contract of lease already consummated; that he exercised that privilege; and that plaintiff was attemptin': to violate the contract by this suit to evict him. This Court lias the undoubted right to protect the defendant in his rights and to prevent the plaintiff from violating them. C. P., 296. '.Yhile this Court nay not compel tl.e plaintiff to execute and sign a contract of lease, it may decree that a lease does exist between him and the defendant by virtue of which plaintiff has no right to evict him from the leased premises.

■ The, contention of plaintiff that defendant's notiee expressed only a "wish” to renew,and not a positive "assent" to renew, does not deserve serious consideration. If it meant anything it was io exercise this privilege of.renewal under the lease.


author: By hi3 Honor John St. Paul.

text:
    NO. 8104.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    WILLIAM WALLACE VS LEON IRWIN.
   opinion.

By hi3 Honor John St. Paul.

Befendants sister-in-law lost a diamond pin; and ^d^fendant advertised a reward for its return, which appeared —ia three newspapers = In two of them no amount v/as named; the third named ¿500 jin figures only). Plaintiff found the pin and olui'raod the reward; of which ho v/as paid $50, and now soelcs to reoovor an addition® 1 .piilO.

Villon plaintiff came with the pin to got the Toward, defendant at once claimed that the figure .$500 v/as an error, and that he intended to offer only $50; that the pin itself was not worth $500. This is the testimony of defendant, and of his chief oler’c called in his behalf; and also of defendant's stenograj/hor called i.-l hohalf of plaintiff.

As a witness, defendant testified that the pin -.'/as not v/orth even ¿150. He donied that he hod said at the time, that it was v/orth ISOQO oi^JiOO; and in this he is oorrobornted hy the sano two witnesses.

The judgment below, which was against plaintiff, was rendered herein three years after thin testimony v/as givon; and thereupon plaintiff uKb i®3 ~or a nsv? 011 the ground of newly discovered ovidcnco; to wit, a witness who would swear HOT that the pin was worth 42000, hut that defendant had said so at the time when plaintiff came to olaim the reward. Which new trial, we think, was properly refused.

June 1921.

Defendant testifies positively that ha directed the offer of -Jh0 only. His stenographer testified that he ■dlaootgd the amount of the reward, and she wrote it as dictated; towit, J500 (in figures only, as was her custom). But she admits that she cannot explain why her carbon copy does not show by whom the advertisement was dictated, and that she had a rubber stamp fao-simile of defendant's signature with which she sometimes signed his correspondence,

fl * It is the law of this state that the public offer of a reward for the recovery of lost or stolen property creates an obligation which may be enforced by the person through whom the property was restored. Deslondes vs Wilson, 5 La 397. But when the offer is in writing, then, as in the case of all written instruments for thepayment of money, proof must be made that the instrument was actually intended to be for the sum therein expressed, C. C. 2243.

And considering all the circumstances as above set forth, we find no such proof in this ease.

fhe judgment Appealed from is therefore affirmed.

Judgment Affirmed.

Ííew Orleans la,


author: CHARLES i. CLAIBOBHE, JUDGE.

text:
    Schwartz and Ferry vs J. Ferran
    No. 8137
    March 6th, 1921 .
   CHARLES i. CLAIBOBHE, JUDGE.

On Motion to dismiss.

There was judgment herein against the defendant for One Hundred and Eighteen Dollars with legal interest from judicial demand (Hovember 19th, 1920) till paid. Defendant took a suspensive appeal. He furnished a hond for $200. Plaintiff moved in this Court to dismiss the appeal on the ground

"that the hond of appeal furnished is insufficient and illegal as to substance and form".

Article 0. P. 575 requires a hond

"for a sum exceeding by one-half the amount for which the judgment was given, if the same he for a specific sum".

^The bond furnished seems to meet the requirements of the law as to amount. Plaintiff has not favored us with a brief or an argument, and we fail to perceive in what particular the bond is illegal as to substance and form.

The motion to dismiss is denied.


author: ót. Raul, Judge.

text:
    NO. 8164.
    STATE, EX RELL KARL HANSEN VS E. W. ULLRICH GLASS CO, INC.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIüIOH.

ót. Raul, Judge.

Relator sued oat a n&udanus to compel respondent to issue to hi i a certificate of stock of tho alloged. value of vl30» and had judgment accordingly; iron vhich judgment respondent too’: a ¡ruspensive appeal on a ho.id for ¿100.

Relator moved to dismiss, on the ground that the amount in controversy does not encaed -ilCO. './hereupon # appellant i.ndortoo3; to show by affidavit that tho value of the stool: exceeded tlUO; to which the appellee responded hy counter-affidavit denying that the atoe]: was worth more than its par value.

file appeal must he dismissed. She action and judgment therein, whatever their form, were essentially on action, for tho recovery of movable property and a judgment for the delivery thoreof.

But by the plain terns of 0. I'. 576, appellant in order to suspend sueh a judgment should have furnishod security for one and one half times the value of tho property; and presumably this is what appellant meant to do when it sought and obtained a suspensive appoa.l on a bond for only ¿100, thus fixing; the value of the stock at less than that amount.

April 4th, 1921.

Accordingly appellant cannot now shift its ground so as to cldim that the value actually exceeds the amount of that bond, especially in the face of the counter affidavit of the appellee. The amount of the bond is corroborative of the countor-affidavit*

The appeal is therefore dismissed.,

Hew Orleans, La,


author: Dlnkelsnlel. J.

text:
    Vincent Vila. -vs- Automobile Service Co. Inc.
    Court of Appel. Parish of Orleans.
    No. 8180.
    Dlnkalsplel. J.
   Dlnkelsnlel. J.

Plaintiff sues to recover §3.000. the value of Ms automobile, which he alleges, was destroyed by fire on 1st. August, 1819, through the negligence of a servant of defendant oompany.

Plaintiff, alleges, that his automobile having beoome disabled on a country road, at a late hour of the night, he engaged the servioes of defendant oompany to tow the automobile to defendants garage.

That on locating said automobile on the road, the said defendant's employee, Gus. Romero, with a view of examining same, struck a matoh near and in the rear of the automobile, with the result that gasoline from the gas tank of the automobile was ignited and exploded.

To this petition, defendant filed various exceptions;exception of no cause of aotion whloh was referred to the merits; a further exception; that having filed a rule on plaintiff to furnish a bond for costs, as required by Section, 4 of Act 136 of 1880. plaintiff failed to do so, but under an agreement between counsel in writing, which was against the law, which letters are in evidenoe to show, that oounsel for plaintiff, under written oonsent by defendant's oounsel, agreed that if a bond was required, he, oounsel for plaintiff would stand on the bond, which was aooepted by defendant's oounsel.

The third exception filed by defendant was for a dismissal of suit as to §1.600., paid plaintiff by the Insurance Company, therefore payment to plaintiff was divested to that extent of his olaim, if he had any against defendant, and finally, not rejecting plaintiff's olaim entirely because of his sot failure to sustain the burden of proof on trial.

The three exceptions referred to were all referred to •tRe merits, and the answer, reserving the benefit <Sf the exceptions, claimed there was no liability on the part of defendant; that the accident was oaused through lnadvertenoe, and without fault or negligence on the part of defendant.

On the question of negllgenoe, and the allegations being wrc* insufficient, as olaimed by defendant, the authorities are abundant the other way.

Cyc. V. 29. Sec. 569., “While it is customary to allege that an aot was done negligently, yet where the pleader states faots from which the law will demand a duty, and shows an omission of the duty and resulting injury, an averment that the stKiis aot was negligent is unnecessary/"

On the question whether or not oomplieanoe with the law to give bond for oosts can or oannot be waived we are satisfied the law was enaoted only for special purposes which at all times oan be waived in writing and agreements between counsel in writing as in this case has been done will be sustained by the Courts.

On the question of whether or not plaintiff oan stand in judgment after the Insurance Company has paid a certain amount of loss claim by him from defendant, The case of Hampton vs. N. O. Ry. Co. 124 L. 562, is absolutely convincing.

Quoting from the syllabus; "Where the owner of property which has been destroyed by fire through owners negligence has been paid part of his loss by an in- ^ surer, and thereby beoomes subrogated to the remedies of the assured, an action to recover from the wrongdoer the value of the property destroyed is properly brought in the name of the assured and the insurer is nota neo-essary party such aotion".

"The wrongful aot is indivisable, and gives rise to but one cause of aotion".

And, in the 27 A. 713, Wm. Mc. Cubbin vs. Samuel Hastings. Qyoting again from the syllabus; "If the allegations were sufficient to imply fault on the part of defendant, the use of the very word itself was not necessary to fix the responsibility on defendant. If he could have prevented the aot, as alleged, and did not, he was neoes-sarily in fault".

Reaching the facts in this oase, without aa commenting unnecessarily, but simply quoting the portions of testimony substantially what we deem essential in connection with an admission in the answer to the following effeot; "That upon locating plaintiff's automobile upon the road, the said defendant employed, Gus. Romero, who, with a view bf examining same, struck a matoh near and under the rear of plaintiff's automobile, with the result that gasoline from the gas tank of plaintiff&s automobile was ignited and exploded by said matoh." And, to this article, "Defendant, respondent, denies that plaintiff states fully the facts properly in the fifth article of the petition. While respondents employee did strike a matoh to ascertain where planks might be placed for the purpose of raising and moving the automobile, same was not done near and under the rear of plaintiff'd automobile as alleged, but some distanoe therefrom,"

T&e two witnesses, both disinterested, one a Mr. Keiffer and the other a Mr. Romero, an employee of defendant Company, in order to bring plaintiff's machine into defendant's garage testified virtually, under the answer, in our opinion, almost identical, as to the manner they proceeded to get to the maohine, and only differed, when they reaohed the maohine, in one material point. Keiffer contended that Romero when he reached near the maohine which was in a ditch, with a matoh lit a oigarette and got under the oar, and in a few minutes thereafter a fire took place whioh destroyed the maohine. Romero, on the other hand, said, that he was on the side of the maohine, and whilst admitting lighting the match in question, he did not light i* under the machine-but on the side, the top part of the matoh exploding, oause unknown to him, and that taking fire oaussd in hie opinion the explosion, and that the heat of the matoh caused the grass where the machine was to ignite, and that grass caused the machine to burn accidentally. It is always customary to oarry lamps so that matohes are not required in works of this character.

It has been testified to by various witnesses engaged in the business of repairing automobiles, that a matoh near or mrtiw anywhere xa where gasoline or explosive matters either aha through negligence or otherwise, oome in oontact with gasoline, danger is iminent. This was known to Romero, and if not known to him it should have been known by him, and his aots are the aots of defendant.

It has been proven further, that so far as the value of this maohlne is oonoerned, that plaintiff had sold it baok to it's original owners, and had purchased another maohlne for which he was to have paid quite a large amount in oash difference the moment the maohlne in question could have been delivered. He collected from the sale of the wreok of the maohlne the sum of #300. and gave credit for that amount to defendant. The evidence satisfies us, that the transaction had been fairly and honestly ooncluded, and there was no deception of any kind practiced in any way by plaintiff on defendant. The aot committed by the agent was the aot of the defendant.

The Judge of the lower Court saw and heard the witnesses. He was satisfied with their statements, and rendered judgment fot the amount of plaintiff's claim less $300.00 admitted to have been oolleoted by plaintiff.

For the reasons herein assigned, it is ordered, adjudged and deoreed, that the judgment of the lower Court be and the same is hereby affirmed, with costs of both Courts.

Judgment affirmed.


text:
    MRS. MAMIE SHARP, wife of JAMES A. CARDENAS VERSUS C. R. BUCHANAN, SR.
    No. 8,008.
    COURT OF APPEAL.
   Confirming the verbal agreement had between counsel for the Plaintiff and for the Defendant herein it is now set forth that at the time of the argument in the above entitled and numbered cause , t^Le Court was also authorized to take up and consider and dispose of the appeal in the matter No. 8194, Mrs. James A. Cardenas versus Cornelius R. Buchanan, fi] ed in this’Honorable Court March 21, 1921, as the two appeals involve exactly the same subject matter, the Pirst appeal, in the above entitled and numbered cause, having been taken by the Defendant, and the Appeal No. 8194 having been taken by the Plaintiff.


author: Par Curiam.

text:
    NO. 8217
    J. F. EBERT, AGENT VS LEROY J. DONNELS
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    PER CURIAM:

      May 2nd 1921.
   Par Curiam.

OPINION.

The City Judge refased defendant a suspensive appeal from a judgment evioting him from leased premiBsa, Rasing his _refusal on the provisions of R. S. 3157, towit; "No appeal from any suoh judgment shall suspend execution unless the defendant has filed a special defense, supported by his oath, .that all the faots contained in his answer are true & o.'

The answer of the defendant herein was indeed sworn to, but was simply a general denial coupled with an allegation that "he has a special defense to make, which will bo made and shown at the trial of the cause•”

We think the appeal was properly refused. The statute is clear; in order to entitle him to a suspensive appeal the defendant should have set up a special defense and sworn to the faots on which it was based. In other words, he should have "set up relevant faots, susceptible of proof, which if proved would entitle defendant to retain possession."

Douffut vs Rush, 143 La 443 (454)

The writ herein issued is therefore recalled, and relator's demand is now rejected at his cost.

New Orleans, La, éjs###


author: By hia Honor-John 3t. Paul,

text:
    NO. 8244.
    JOSEPH E. MASERA VS A. BALDWIN & CO, LIMITED.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opimos.

By hia Honor-John 3t. Paul,

Phis is a claim for damages arising out of a collision Between a passenger automobile Belonging to and driven By plaintiff, and an automobile truck Belonging 'to defendant and driven By one of its employees. The collision occurred at the intersection of OlaiBorne and Orleans Avenues, two wide thoroughfares crossing each other at right angles, each having a douBle roadway and parjciiay or "neutral ground" Between; whereupon the municipal ordinances require that vehicles shall travel upon that roadway which has the curB to the right and the parkway to the left when looking in the direction of travel.

At the time of the collision plaintiff was In Orleans Avenue (complying fully with the traffic lavra) intending to turn into OlaiBorne Avenue, and had stopped a moment to allow some half dozen vehicles to pass him all going in the right direction. As the last of these passed him he turned in to follow it, and in doing so either ran into, or was run down by, defendant's truckfeoming from the opposite and wrong direction.

Owing to the great width of these two avenues, and the open space formed By the crossing of the two parkways, there is at this intersection an unobstructed view for at least 100 feat in all directions; so that there is no doubt that plaintiff could have seen, and also have been seen by, defendant's truck driver, had either of then looked; which of course neither of them did, as evidenced by the result. As to which, plaintiff's explanation is readily understood, to wit, that he was looking out for traffic from the other and proper direction.

X.

Of course the mere fact that a party has violated some law or ordinance does not make of him an outlaw entitled to no rights; so that to fix responsibility upon him the connection between the fault and the damage# must be direct and natural, Loyacano vs Jurgens, 50 An 541; Central Glass Co vs Heiderich, 6 Orleans Appeals 326.

But here the connection between the fault and the d damage is direct and natural; for the collision would not have occurred had defendant's truck been where it should have been, to wit, on the other roadway.Hence the only possible defense to this action is that plaintiff contributed thereto by his own negligence in not looking out for the truck; which duty it is sought to impose upon him because, it is so said, tha traffic laws are constantly violated at and around this point, and plaintiff know it.

Por it ia olear that no one is obliged to anticipate that another will violate the rules of the road; and hence a person entitled to expect travel from one direction only is not obliged to look out for vehicles travelling unlawfully in the opposite direction. Schick vs Jennerein, 145 La 336; Trout Auto Co vs Peoples Gas Co, 168 Illinois Appeals 56; See also Shea vs Reams, 56 La Ann 966 (969; Crawford vs Hines, $7979 Our Docket; Scariano vs R. R. Co, 14 Orleans 16; Laing vs R. R. Co, 10 Orleans 96; Bensburg vs Terminal Co, 11 Orleans 1.

II.

Por the rest the evidence shows no more than this; that because of insufficient police supervision, and by } reason of one roadway being better than the other, the traffic law are often violated at this point; but that plaintiff ¡mows very little about this particular place, although he does know that there are always and everywhere some people who will violate the road laws, and thut anyone who would be quite safe upon the streets must at all times he on the witch out for all such; which is quite another matter.

The judgment appealed from is therefore reversed; and it is now ordered that plaintiff, Joseph 3. Masera, have judgment against defendant, A. Baldwin & Co, Limited, for the full sum of Sis hundred and forty-two Dollars and Seventy four cents (#642.74) with legal interest from judicial demand and the oosts of both courts.

May 30th, 1921.

Judgment Reversed.

Hew Orleans la,


text:
    STATE OF LOUISIANA, PARISH OF ORLEANS. COURT OF APPEAL.
    Mrs. Ada Calvin vs. Mrs. Amy Wread, et al.
    No. 8266.

   On motion of Mrs. Amy wread, defendant, appellant, through Mark M. Boatner, her attorney,

It is ordered that mover's appeal he and it is hereby dism\¡.sged.

Service acknowledged, 9 no objection.


author: Dinkelspiel; J.

text:
    NO. 8269
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. ADELINE JOHNSON, wife of ROBERT JOHNSON versus VICTOR HURWITZ, conducting business under the name and style of V. HURWITZ & COMPANY.
    Dinkelspielj J.
   Dinkelspiel; J.

This suit is brought by the plaintiff who resides in the Parish of Terrebonne, stating that her son, Robert Johnson, Jr., and upon whom she was actually dependent for support was in the employ of defendant on Qctober 15th, 1913 and had been in said employ as a laborer for several years prior to this time, his wages being twelve dollars per week.

On the day mentioned and at the store of the defendant víhióh is on RoyallStreet in the City of Kew Orleans, whilst working in a freight elevator, which w.-'S unenolosed, he precipitated and fell from said elevator, which in its transit had reached a point between the second.and third floors, to the ground floor of said building and as the result of said fall austs.ined a depressed fracture of the skull, a compound fracture of the right radius or forearm and ulu.a and a fracture of the right femur or hip and from the effeots of which injuries, died.in the Charity Hospital in Rev; Orleans on the seme day.

That the cause of the fall from the elevator wee that a piece of furniture then being carried on said elevator, which had no sides and no gate or be,r-rier of *>ny kind either on the front or rear thereof, came in contact with the descending lifting weight thereof, causing the e.'-id saa piece of furniture to fall striking petitioner's son, knocking him out of said elevator and finally causing his death.

That said injuries were sustained by plaintiff's sen on account of his em -loyment, which employment and the duties incident thereto were of a hazardous nature and that said injuries 'which resulted in and caused the death of plaintiff's eon were suffered and sustained while in the course of his employment by defendant.

And further alleging that at the time of said injuries, plaintiff's son was making two dollars per day or twelve dollars per week and that under the provisions of Seotion 8, paragraph 3, subject paragraph G, of Act 20 of the General Assembly of this State, for the year 1914, as amended by Aot 343 of 1916, as amended by Act 38 of the Acts of the General Assembly of 1918, plaintiff's son leaving surviving him, neither a widow nor children, plaintiff is entitled to reoeive twenty five per cent of the wages of her deoeased son for a period of three hundred weeks, beginning Ootober 15th, 1919, and whloh should be paid in regular form and according to law.

That defendant had full knowledge of said injury ies and did from the time that it happened and although notified lay of the death of plaintiff's son, refused to pay the compensation to which plaintiff vías entitled by law.

TOierefore she prayed for judgment against defendant in the full sum of $900.00, in regular payments as the law provides and for general relief.

Defendant excepted to plaintiff's petition, that because being a married woman and her husband and father of her deceased son was living, she had not been authorized under the law to institute and prosecute this suit. That petition discloses no lege.l or valid cause of aotion.

Answering to the petition, requires striot proof that the decee.sed was the legitimate issue of the marriage between Robert Johnson, the husband, and that plaintiff was actually dependent upon the deceased for support.

Claims that defendant had no knowledge as to how deoeased met his death but admits the death; admits also that the deoeased was earning two dollars per day or twelve dollars per week at the time of the employment; admits that he has refused to pay the compensation claimed but avers that he has paid one hundred dollars for funeral exxoenses of the deceased, for which he is entitled to credit,if liable in any event.

Wherefore he prays that the exceptions be maintained, and if overruled that after the trial on the merits, plaintiff's suit be dismissed and for gener-.l relief.

And examination of this record convinces us that plaintiff was the wife of Robert Johnson and they had been living apart for twenty years prior to institution of this suit; it further satisfies us that the deoeased was the main support of plaintiff and he remitted to her regularly from his wages, from five to seven dollars per week during the entire time of his services with the defendant; it further satisfied us from the testimony that the deoeased was a labor in defendant's employ at the time and for several years prior to the time of this unfortunate accident and was reoeiving wages at the rate of twelve dollars per week. It oonvinoes us further that the acoident occurred just as described in plaintiff's petition, that in the course of his employment, whilst in the discharge of his duties, he was knocked off of the elevator to the floor, sustaining injuries which finally resulted,the same day, in his death at the Charity Hospital in the City of Hew Orleans.

The fact of the employment admitted, give plaintiff a right to compensation to the extent of twenty five per cent of her deoeased son's wages for a period of three hundred weeks, and under lots of 1914, 1916 we and 1918, and under the testimony in this oase/x«B are satisfied that plaintiff is entitled to the amount she olaims.

There is nothing in our opinion for defendant to fear that if he pays this judgment that the husband of plaintiff would have been entitled to make the same oleim against him; in fact the pre3cri .tion of one year has set in since these proosed-ings began.

In the argument before us in this case, our attention has been called to the further alleged fact that the amount involved is below our jurisdictional amount, because the amount of funerrl expenses, attempted to be deduoted by the dependent in thi3 case being ninety eight dollars, would not entitle us to determine this oase. We do not concur in this view for on the oontrary this case under the Act ?bove quoted and under the laws of this State w.is for the sum of $900.00, to be paid in due course as provided by law and vie only consider one question to be de-oided, that being the one of deducting funeral expenses as prayed for by defendant.

The law is plain and reads:

Aot 38 of the Legislature of 1918, Section o, at page 56.

The employer shall in every oase furnish the employee reasonable medioal, surgical end hosjital servios and medicines not to exceed or.e hundred and fifty dollars in velue, unless the employee refuses to allow them to be furnished by the employer, and in every oase of death, the employer shall pry or oause to be paid the re5 sonable expenses of the burial of the employee, not exceeding one hundred dollars.

It leaves no room ax for doubt th; t in addition to the compensation required to be paid there also must be furnished to the injured party, medioir.es • nd other medioal aid to the extent of c-ne hundred fifty dollars and oonsequently in oase of de., th funeral expenses not to exoeed one hundred dollars.

Therefore the olaim of defendant that the amount of ninety eight doll-, rs for funeral ex..enees paid by him be allowed to him as a deduo tier. fr.,.-.. the -aaount that he owes under che ...ust be deni

For the rei eor.3 aligned, it is ordered, adjudged and decreed, that the judgment of she Court a quo should be xattx amended and it ie now ordered, adjudged and deoreed, ch. t some should be rendered in favor of lire. A leline Johnson wife of Robert Johnson, affirming judgment in plaintiff's f„voi for the full amount of her clr.ii. against defendant, that ie for $900.00, payable in weekly installments of three dollars per week for three, hundred vreeks end that judgment in favor of defendant deducting from said amount the sum of ITinety Eight Dollars for funere.1 expenses, be reversed; s.n..e disallowed, and as thus amended, judgment is affirmed, cost3 of both courts to be paid by the defendant.

Judgment,amended; partly affirmed; partly reversed.


author: Dinkei ; J.

text:
    No. 8277
    COURT OF APPEAL PARISH OF ORLEANS.
    LIBERTY BANK & TRUST COMPANY versus JOS. E. JOHNSON.
    Dinkelspi-l; J.
   Dinkei ; J.

PI. inbifí .rued clef ¿nd.-nt for the sum of One Thousand Roll-. r,, te-": ti..-r . i ;h intsr-.'rt at the rate of eight per cent per ■..r.aum frcm "oTa,j t 3rd, 19.90 .,nd re--3or.---.ble attorney's fees; a}.-,1 Aging tint pi. intiff is the holder End owner, for value, before .... t\ ri by, of ... cert: in provisory note subscribe! by defendant end by hiM endorj.. 1, filing the note for the amount claimed with pe-tibian, ..-nd s.-id obllg-tion not being paid at maturity, demands iu'.gmcnt .-.gainst the defendant reserving plaintiff1 s right to «. prco-.-;d ..g.inst rhe Inbornationi1 Puncture Cure, Inc. and E. G. Gould, the endorsers on said note.

To this petition defendant admits his signature to the oblig-.tion in i.uestion but alleges that said obligation was issued without consideration and without any value reoeived from pit.intiff, and. averring substantially thai. the transaction be-tv/o .n the InGorn-.-.tiom 1 Puncture Cure, Inc., E, G, Gould and ■pit-intiff, vívs o new and distinct consryct of loan, separate anteceded from -,.ny other contract which mo.y huve/fcftft&xsEiEfeS; the transaction and mi.de without reference to any preceding contract but >vas and is a nsw and distinct and separata contract by v/hich the Puncture Cure, Inc. end E, C. Gould borrowed money from pli intiff on said noto and endorsed same, which said endorsement constituted a new contri ct.

Alleging further th-'o plaintiff did not purohase said note outright but merely discounted seme and the discount wt-s made upon the faith of the endorsement and not upon the note and being v. distinct cent rao t between plaintiff and the tndorjors, defendant h;.d right to discuss this matter before plaintiff could proceed against him, which plaintiff has not done.

Alleging else that pi..-Intiff had knowledge that the other parties to the note, Gould and the International Puncture Cure, Inc. were amply able to pay said note and primarily responsible thereon; charges plaintiff, by the action mentioned are protecting or attempting to protect thsse parties end to the detriment of defendant and fur-tlnr Alleging th-'t the obligation w-.a given by her=nhunt to the p-rtiss na-mocl, Gould ¡.1.11G others, for the bula-noe of-a subscription to ate ok of sdJ. Punoture Curs Inc. end said obligation V/-.S ¡¡k.ds .nd isousd in error of the true fusts regarding scid Coerpi-.ny and because of Misinterpretation sit.de by the pi rbios to wit: the Punoture Cure Ino. end Gould, all of which facts are set out in suit ’’o. 134570 of the docket of the Honor;/,Hie tho Civil District Court, Division "D".

Tho prc.yer concludes preying for judgment that praying plaintiff1 s suit bs -di ami-sod .'.nd furthsr/Kkxjaxxiig th't the Intern-tional Punoture Cure Ino. through Edg.-r G. Gould, its Pre.’icbnt t.nd Edgar G. Could individually, bo called in warranty herein . n-1 oitsi to .-p.-,e r • nd astir It.intiff1 s petition and this 0.-.11 in -.v>'rr nty .-.nd th.-.t c£ter tri- 1 there be judgment in -def nAr-nt'c f-.vor . nd ..gv.inot the other parties mention;- her; before, r rving the further right z'. sue fer h-.p-.i,, ,-tO. ;tC.

To this i.no.rer nd c 11 in v/ or. nty an order W...3 obS.ined pen..i tting o ho tc bt fil...l ,.nl ch- t the .v-rti-s in •.,ue.,tion bo c.-Hod in m r.-i;ty. Doth roi=s oollod in ive-r-i- n ;y fil-,d plots c-f c-v..-s of ..coion ;.na the further plea 0* - 2..-J _

Cn th: -1 th cf ...roh, 1CH1, pl-intiff asked th.-t this o.-.;»-; bo fix-:-! by prsf.renoe on ths auum ry docket of the Civil District Court, rtiich w. ; dono c o-.inst the objections of th : defend; nt.

On the tri. 1 cf this cose ths presiding Judge :.vs the following re-sons for judgment cn exception tc cell in vi.rr. r.ty f.r.d no cause cf action.

"Under Article 373 C. P., the endorser hit the right to call ir. the inker in warranty but the m-. k;r h-.s no right tc o.11 the endorser in warranty. The a ker is primarily 11:ble end Lust defend his own suit without c.lling ;.ny-cnc in w;.rr,..nty.."

Tutonia Bank vs. Brunett, 3 Court of Appeal, p.86. Wesson vs. Garrison, 8 Ann. 136 Bank vs. Stevens, 11 Ann. 190.

"A 'controversy Between the maker and endorser oan be settled in a suit amongst themselves and the records of this Court show that there is pending in DivisionME", suoh a suit.

The exception to the call in warranty is maintained and the call is dismissed."

Fiom this judgment defendant has taken an appeal to this Court.

During the trial of this oase, the same character of argument for i continuance of the case made there was made here end the Court goes on in its opinion overruling, to use the following language;

"The argument of counsel is very ingenous; the oases cited by him are not applicable to this ca.se, whioh is a civil suit on a promisory note against the maker. The maker calls the endorser in warranty; the Sourt rendered judgment dismissing the call in warranty; the Court deolines to stop the trial of the case and counsel insists. The oase is ordered to be proceeded with."

We oonour in the views thus expressed, and the authorities quoted by the able Judge of the Court aquo are absolutely correct and as far as they go, applicable and we adopt same as part of the reason for the judgment to be rendered in this case.

In the case of Anchor Sawmill Co. vs. Acme Lumber Co., to be found in the 7th Court of Appeal at gsgsx&SUc page 468, the Syllabus reads as follows:

"The right to issue a call in personal warranty oan e,rise only when there is but one debt, due to plaintiff by defendant, but which a third person is obligated to pay for account of defendant. The fact that a third person is indebted to defendant in a. like sum and growing out of the seme trrnsaotion does not entitle defendant to call him in warranty; the obligation of the vre.rrantor must be to pay the very debt for whioh defendant is sued,"

Cn p- 471 of She s.jne volume in the seme mutter being plic Sion for .vrisi of Certiorari and Prohibition, this Court -..mcnget r bhjr thirus go so on "As'between defendant and the alleged warrantors, the question of the right to call them in warranty w .s ^resented by the exception. But as between plaintiff and defendant that question arose only when plaintiff sought to proceed without the presence of the alleged warrantors. And plaintiff was entitled to raise the issue regardless of whether Corey & Bro. hod or had not themselves raised the issue. It involved a substantial right on their part, the right to proceed regardless of the presence of Carey C. 3ro.

The books are full of instances in which the right of a defend: nt to issue a, call in warranty has arisen exclusively between a plaintiff and a defendant, and it has always arisen in just that way, viz: over the right vel non of the defendant to demand a continuance for the purpose of having the alleged Wi-.rr.-.ntors present as a party during the proceedings.

Whatever controversy exists between the defendant, the ¿:.ksr of this not? and the endorsers, can be tried in another ^rooeeding o-nd thi.t is now pending in the Civil District also Court, but tk. t/c:.unot interfere nor delay this trial and did not in the Court below and equally so is it the case here.

The Judgment of the Lower Court was in favor of plaintiff, together with allowing judgment in favor of the attorney of plaintiff for ten per cent as attorney's fees in this case.

And amendment has-been filed asking for an increase of this amount, which we think should be granted.

It is therefore ordered, adjudged and decreed, that the judgment of the Court aquo be and the seme is hereby affirmed but amending said judgment, fiving Lazarus, Uiohel & Lazarus end Herbert S. Weil, Attorneys in this os.se, fifteen per cent instead of ten per oent, as attorney's fees, and as thus amended judgment affirmed.

-Judgment amended and Affirmed..


author: Dinkelepiel; J

text:
    NO. 8281.
    COURT OF APPEAL PARISH OF ORLEANS.
    DIXIE SECURITIES CORPORATION versus ESTOPINAL MOTOR CO. INC.
    Dinkelspiel; J.
   Dinkelepiel; J

The question presented on the motion to dis-ise is founded on the ground th; fc th:. .'...Mount ir.v/lved is leso then the sum of One Hundred Dola-rs rn;. therefore not wit _in the appelate jurisdiction of this Court.

It a-.pear 3 that the suit originally ./ ; .cíbsure 'ey plaintiff eg. lust the Seto .i:'.-. 1 he ccr Co. Ino. fa of a ohattel mortp-. ;s • 'mounting bo Twelve hundred Dollars and being upon thrs: :ile3.

The S. Guii.oel Be 1 by and Chcuri ois3 Cc„.....ny fr.o. intervened in th..oo proceeding;,, b i..g the 1. r.dlcrd of the premises occupies by defendant clai...iuj ri/ilege sup -.-rior to the mortgage of che plaintiff, u. ci. one cf the automobiles involved in this lieij. ¡ion. TI.„utc-mobils in quaeticr. soli by th- Civil Sheriff unier v/rit of seizure and -pie for th; sum of 040.00 . nd the Oouee Wes thereafter tried bet-.: the pi; ir.tiff ; nd the intervenor upon the issue cf './bother thu pi. intiff or the intervenor h- d a prior cl'im tc this (-40.00. There './as judgment in favor of the inter-encr, directing Sir t the lessor’e privilege cutronkfi :: ohattel mert.. s tc the autcuobilin question ..ni tho ju'.gmjr.t specific.lly awarded the (¡40.00, the pur oh- as rico cf this sutcr-cbile to the intervenor on account of i.-s cl im ,r.fr,;« this judgment plaintiff take3 the present c.. _a.il,

from the for-, going statement of facts it is clearly ?E±Kizá proven that the amount Involved in the .-reoO.vt appeal is lese then One hundred Eoll. rs . nd without the minimum jsjcBKi appelate jurisdiction of this Court.

"The test of jurisdiction on ... s.-.l is the amount involved when the appeal is taken."

Burdeaux v. Darcy, 7th Court of Appeal 304.

Gauche vs. Trautman, 7th Ann. p.18.

Garmani Savings Bank vs. Kutler, 52 Ann. 550.

"The sale of the property at $1800 placed in the hands of the Sheriff for distribution, although the claim of plaintiff and the intervsnor each exceeded two thousand dollars, upon an appeal by the intervonor from the judgment dismission his intervention the Supreme Court held that.it was without jurisdiction, the '•mount involved being issxx less than Two Thousand Dollars."

Eor the re sens a signed the motion to dismiss must prevail.

It is ordered, adjudged end decreed thefc the apjeal in this case be dismissed.

Hotion to dismiss maintained and appeal dismissed.