author: St. Paul, Judge-.

text:
    NO. 7921.
    MRS JOS. FREDERICO. VS J. S. SCHEINKRAUT.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOK.

St. Paul, Judge-.

This Is a proceeding to eject a tenant after due notice to vacate.

Plaintiff alleges that defendant "failed-to pay the rent note x x x x due March 1st hut paid said rent note only on March 4th, and thus violated the terms of the lease".

Defendant excepted that the petition showed "no cause of action", and then set up as a special defense that plaintiff had waived prompt payment of the rent hy heretofore receiving the same at slightly delayed periods.

I.

The proceedings being hy rule the exception was not heard separately from the merits. On the trial it was shown that plaintiff had notified defendant prior to March 1st that she would thereafter "exnect him to comply strictly with the conditions of his lease", and that the rent notes had been deposited for collection In a certain hank.

The rent notes however were not made payable- at said hank nor at any other particular place, and it is neither alleged nor shown that any demand for the rent was made upon defendant .personally or at his place of residence.

Under the circumstances defendant was not in default since "in the absence of a stipulation in the lease to the contrary the rent is payable at the dwelling of the lessee", Lafayette Realty Co vs Puglia, 10 Orleans App 105; or at least the rent note should have Jjeen presented to defendant personally, Bonnabel vs Metaire Cypress Co, 129 La 928; AajUoy)<S**U.H«£. syie, z?3. Ufar does the fact that defendant had on previous occasions taken up his notes <ic the hank where they had been deposited create any obligation on his part to do so again, Hazard vs Lambeth. 3 Rob 378;

As to the provisions of the lease reserving to the lessor the right to dissolve the lease without putting the lessee in default should the latter violate any of-the conditions thereof, these of course can have no possible application tp payment of rent, since such a thing as payment of money without the presence at the place of payment of the creditor or his representative to receive it is an actuad as well as a legal impossibility C. C. 2140.

II.

He have said that it is neither alleged nor proved that any demand for payment was mad- upon the lessee personally or at his dwelling, and hence he "was not in default. It is urged however that this court can on this appeal consider only the sueojal defense because of the provisions of Revised Statutes Section 2157.

But this is not sound.- It is true that a lessee has no right to a suspensive appeal unless he has filed a special defense; but his right to appeal devolutively on the whole o ase ia wholly independfchí' of any special defense, Iiauga vs §é Baradat, 7 Orleans ApbjAAÍ.k And this is. so tme that if ■ the lessor execute the judgment and' it is afterwards reversed, he will he answerable in damages, Mengelle vs Abadie, 48 An 669.

Hence the whole case is before us in one shape or another; and having the whole,case before us there is no reason why it should not be disposed of by one judgment. For it wojtld be manifestly absurd for us to divide our decree and say oh the one hand that the special defense is not good and hencce plaintiff may execute the judgment at her peril, and on the other hand that for other reasons the judgment is erroneous and cannot be executed at all. Even had the two appeals reached us seperately we would as a matter of course hare directed their consolidation. In re Land Development Co 10 Orleans App 180.

The judgment appealed from is therefore reversed and it is now ordered that plaintiff's demand be rejected at her cost in both courts.

New Orleans La, Oct 25th, 1920.


source: Caselaw Access Project

author: CHARLES F. CLAIBORIB, JUBOS.

license: Public Domain

text:
    Charle* 7. Claiborne, Judge.
    WM. MAYER VS MRS. M. MELANCON
    No. 7950
    June 28th, 1920.
   CHARLES F. CLAIBORIB, JUBOS.

Thiele a eult for poeaeeelon of leaeed prealeee under Aot 49 of 1918 p 71.

The plaintiff alleged that on January 25th, 1919 he leased to the defendant, Mrs. M. Melanoon, the premises So. 217 3. Roman Street for a period of 24 months, commencing February 1st, 1919 and ending January Slot, 1921; that the defendant refused to pay the rent for the month of Haroh 1920; that the plaintiff thereupon notified her to vacate, which she hae refused to do; and he prayed for judgment

"condemning her to vaoAte the said premises So. 217 South Roman Street and to deliver possession of the same to petitioner íce".

The defendant admitted the lease, but alleged

•that the property for which rent was sought by plaintiff to be collected was sold at tax sale on Hovember 1919 for the State Taxes of 1918 to the Commercial Security Company, and that the said sale was registered in the Conveyance Office Book 312, folio 192, and that under the provisions of Act 170 of 1898 p 377, the rent was due to, and collectable by, the said Commercial Security Co., and the said Commercial Security Company, through its representative, L. B. Konrad, made a demand for the payment of said rent^and that your defendant did not know to whom to pay said rent and requested that she be given a few days to secure legal advloe upon the matter, and that accordingly she consulted counsel, but in the meantime a notipe to vacate was served upon her as alleged In Article III; Defendant further alleged that she, under the circumstances, did not know, and she does not know now, to Idiom this rent should be paid, ^ and ahe has deposited In the registry of the Court not only the rent far the month IT Meroh, hut in advance for the month of April, vie: Sixty Dollars, subject to the orders of the Court and dealrea that both the plaintiff and the Commarolal Security Company he oited to appear and litigate their reepeotivo right* to the aaid fund representing aaid rent*;

defendant admitted that she refuaed to vacate the premlaea for the reasons above state^and she prayed that the plaintiff and the Commarolal Security Company be ordered to litigate their claims to the rent and to the money deposited In Court, and that a copy of her answer he served on the Security Company.

The Commercial Security Company appeared and alleged:

*that at a sale held In Hovembdr 1919 hy the State of Louisiana selling for the State Taxes of 1918, your appearer purchased the property which was the subjeot of the lease between the plaintiff and defendant, all as will appear by tha act of sale passed before John P. Sullivan, Votary, and registered C. O. B. 312, fo. 192; that accordingly your appearer beoame entitled to all of the rents and revenuea of the property from the date of aaid sale until its legal redemption; that neither tha owner nor any one else has redeemed the said property from the said tax sale; that your appearer, through Its representative, I>! B. Konrad, made demand on Mrs. U. Helancon for the rents of the said property to which appearer was legally entitled; and it prayed for judgment against the plaintiff and In its favor decreeing it entitled to the $60 deposited hy the plaintiff in Court.*

Upon the trial of the oase all three parties supported the allegations of their petition by sufficient evidence. The Security Company offered in evidence its tax title. The plaintiff objected to the appearance and demand of the Security Company; but if we find that the plaintiff had no right to the rent demanded by him of the defendant, nor to the money deposited, then it is no concern of his who gets the money.

*■ The only question presentad Is, was the plaintiff entitled to the rent he demanded of defendant; If he eras not, then the defendant was not at fault for refusing to pay it to him, ^ and plaintiff had no right to notify her to vaoAte because she refused to pay it to him.

The Dlsttlot Judge deolded in favor of the defendant rejecting plaintiffs demand, and he has appealed.

This judgment la correct. The dafandantg^ai^bound to give full faith and oredlt to the tax title immeiiitiiil te bn by the Security Company, just as muoh as if It had exhibited to her a Sheriff deed or an act of sale by the lessor himself, •jyf

| Article 233 of the Constitution of 18B8 provides that u\all tax-deeds shall be prima facie valid. This Is only a repe- ? tition of a similar provision In Artiole 118 of the Constitution ^ of 1868 and of Artiole 210 of the Constitution of 18^9, and of \ Act 68 of 1870 p 126 Sec. 69 p 141,and Act 47 of 1873 p 98 8ee.4.

f In 35 A., 893 It was held '{hat a mortgage creditor was {found to give consideration to a tax sale of the mortgaged pro-party, and could not prooeed against It until he had set aside ¡ffie tax sale; quoting 25 A., 237; 29 A., 113; 30 A. 1235; 31 A., 62 and 33 A., 441.

In 44 A., 650 (655) It was deolded that It was the duty 1 an assessor to assess property In the name of a purchaser at tax sale.

The defendant in this oase had no right to Ignore the ^■^ax sale of the property she occupied after being notified V^\hereof by the tqx purchaser, and if she had done so she might /^heve been compelled to pay the tax purchaser after paylag Her V^essor.

v- There Is no doubt that the purchaser of property far ¡[the registry of the tax deed In the Conveyance Office. 'taxes Is entitled to the rents of the property from the date of

Section 67 of Aot 170 of 1898 p 346 (377) reads a* follows:

"That from the date of reoordlng eald tax deed, all the rents and revenues of the property therein osnveyed shall belong to the purchaser, and shall he paid to him *e*.

this la a repetition ef Station M of Aet 85 of 1888 p U1 (154)'and of Station 47 of Aet «8 of 1888 p 133 (154), nnA of Station 54 of Att M of 1888 p 110 (138) and Act 47 ef 1873 Sao. 4 p 108.

Although It It not necessary to "light oandlot ah on tho tun ahlnaa" a referenoe to authorities will confina tht olear expression of tht lav.

In eemmentlng upon an adjudication for tancas nado under tht Act of 1888 the Court said in Moore vs Beagin, 111 La., 490 (493):

"Beagln, tht mortgagee, (purabasar at tax tala) had a complete legal titlt, and it gava him tht right to go In 'possession aa ho did a short tima (a few days) after tha adjudication at tax tala. Ha was lawfully in pos-aaasion of the proparty*.

In Pate vs Burnside, 129 La., 104, tha Court said:

"A tax daad la prisa fado svidenoo ef the validity of the tale, and upon presentation of tht sama to any judge of eospstant jursldletlon tha adjudieataa therein named la entitled to a writ of possession". Sea also 43 A.,789.

lor art tha provisions of Sections 86 and 67 of Aot 170 of 1898, entitling the purchaser at tax sale to immediate possession ana to rants, in conflict with Article 233 of the Constitution' of 1898 which provides that property sold for taxes

"shall he redeemable at any time for the apace of one year* Zn tha oase ef Geddes vs Cunningham, 104 La., 306, the Court said, on p 311?

"ZZX "Zt Is said that inasmuch as the Constitution «f 5Í879 ’provided that the property shoull be sold fpr taxes without appraisement, and "should ba redeemable at any time for the space of one year, by paying tha price given, .with twenty par cent and costs added", it was incompetent for the Legislature to Increase the penalty thus Imposed upon the delinquent tax payer, but that the provisions of Aet 85 of 1888 (Sections 65-66) authorising the adjudioatee of property sold for taxes to take possession before tha expiration of the year within whioh, under the Constitution, the property could he redeemed, hare that effect, and henoe, are in conflict with the Constitution, and are rold, We are unable to oonour with this Tlew. The constitutional provisions require a sale of the property; and a sale, whether with, or without right of redemption, entitles the vendee to the possession of the thing sold. Xt was therefore competent, if not obligatory, upon the General Assembly, in adopting legislation to carry those provisions into effect, to authorize the adjudicates to go into possession at once*.

The defendant has ashed for damages for a frivolous appeal. These cannot be granted. The appellant has not been condemned to pay money; it is ohly in such oases that he can be condemned to pay damages for a frivolous appeal. C. P. 908; 28 A., 626; 19 A., 327; 13 A., 465; 14 A., 229.

The Judgment ic affirmed at oost of appellant in both courts.

June 88th, 1980.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles 3?. Claiborne* Judge*,
    HIBERNIA BANK & TRUST CO. vs RICHARD G. FITZGERALD
    No. 7956
    June 28th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit to compel a purchaser to accept title to certain lots of ground sold to him hy the plaintiff. The defense is misdescription in the vendor's title and «ant of title. From a judgment against him the defendant appeal*.

The facts are that plaintiff offered to sell, and defendant agreed to huy, five lots of ground situated in Square 172, hounded hy General Ogden (late Jackson), Plum, Protection (late Upper Line) and Poplar (late Fifth), Street*, adjoining each other and measuring each 30* front on General Ogden street hy 120' deep, Lot No. 1 forming the corner of General Ogden and Plum Streets as appears by the following

Plaintiff1» chain of title ia ae follow»:

By an act dated October 31, 1870, the State Tax Oolleotor aold tc tho State the following property assessed in the name of Estate of Adam Heene, viz:

"Rive lots of ground in Square 172, bounded by Plum, Jackson, Fifth and Upperlin» Streets, fronting on Jackson Street, and being lots Nos. 1 to 5, measuring each 30* front by 1201 deep, Nó. 1 forms the corner of Plum and Jackson Streets".

By act datedJSeptember 24th, 1877, the State Auditor sold.to John Mehlho^five lots withe the following description:

x x "and fronting on Plum and Jackson Streets, lots- 1 to 5 measuring each 301 by 1201, Lot No. 1 forming the corner of Plum and Jackson Streets".

By that description it does not appear upon what particular street these five lots front, as it is evident they oannot all front upon both Plum and Jackson Streets.

By act before E. Commagere, Notary, dated July 15th, 1886, the heirs of Adam Heene ratified the two sales above mentioned by 'the State Tax Collector, and by the Auditor to Hehlhop of the five lots, with the faulty description contained in the Auditor's deed.

By act before Fred. Deibel, Notary, dated February 19th 1913,’ the heirs of Mehlhop sold to the Osier Bros, the same five lots 1 to 5 in same square described as follows:

"said lots adjoin each other and measure each 301 front on Plum Street by 120' deep, lot No. 1 forming the corner of Plum and General Ogden Streets.
Being the same property which was acquired by John D. Hehlhop from the State of La. assessed in the name of Adam Heene per Auditor's deed of date September 21st, 1877; Reg. C.O.Bk. 109, p. 237, and which said deed was ratified by the heirs of Adam Heene by act of E. Commagere, late Notary, dated July 15th, 1886; Reg. C.O.Bk. 124 p. 308".

In the suit of the New Orleans National Bank vs Geier Broa., the five lots of ground with the same description above given^ere seized and advertised for sale, and sold to the Hibernia Bank & Trust Company by act dated September 17th, 1919,

This is the title tendered by plaintiff to defendant.

The defense is that

"the said description ( in the above sale) is an error, as the five lots adjoin each other and measure each 30r front on General Ogden Street ( or 150*) by 120' in depth (on Plum St.) and consequently, that under the said sale and adjudication the said bank acquired, of the said five lots in question, (only) 120' on General Ogden Street by 120* (150!) on Plum Street; that this would leave out lot Ho. 5 which has 30! front on General Ogden by 120f in depth, and that the title to said lot, as an undivided part of said area* makes the title unmerchantable and suggestive of future litigation and is not such a title as this respondent should be compelled to accept*'.

It is true that according to the act of Deibel of February 19th, 1913, the heirs of Mehlhop sold to Geier Bros.,according to the description contained in the act, five lots adjoining each other and measuring each 30* front on Plum Street, or 150feet, by 120’ deep, lot Ho. 1 forming the corner of Plum and General Ogden Streets., By thi^description the vendors sold one lot more than they owned on Plum Street, 150 feet instead of 120 feet, and they left out lot 5 on General Ogden Street,* for in order to include lot 5^a depth of 150! on General Ogden Street was necessary. Of course, it might be argued that it was evidently the intention of the heirs of Mehl iop to sell the five lots on General Ogden Street by 120* deep and front on Plum Street, because the act of sale declares that it was the "same property which was acquired by John D. Mehlhop from the State of Louisiana &c". But it does not state that it was the "whole property" so acquired, and the ambiguous description of these lots made to front on both Plum and General Ogden makes it uncertain what was sold.

But be that as it may, the Sheriff's sale to the plaintiff, the title acciuired by^ and tendered bji^it to the defendant, calls for 150 feet on Plum Street by only ISO feet front on General Ogden Street, without any addition, explanation, quali-fioation, or reference to any other act or prior Acquisition or derivation of any hind. In order that the plaintiff, under such a title, and description^should he able to set up a oifdm of ownership to lot 5 fronting upon General Ogden Street^which is not included within its measurement^ some evidence dehors the Sheriff's deed would he necessary, and perhaps some judicial proceedings^the outcome of which remains in douht.At host, the title of plaintiff to lot 5 is not clear upon its face. The defendant is entitled to a clear title, free from douht, or the apprehension of litigation. If it is necessary to go to expense or trouble to perfect the title, the burden is upon the vendor and not upon the purchaser.

In the case of Ker vs Evershed, 41 A., 15, where the plaintiff contended that the defendant had not acquired all the land his title called for through an error of description in the act of mortgage and in the Sheriff's deed, the Court said on p 20»

"It is vain to say that Mrs. Evershed supposed she was buying a different property from that whioh was sold. Titles under judicial sales are not to be regulated by the mistakes or errors of purchasers unless such errors were induced by some defect in the proceedings themselves, or by some fraud or misrepresentation. The purchaser takes what is sold and what he buyB, no more and no less. Suppose the error had been on the other side, and the Sheriff had seized and sold a less estate, could Mrs. Evershed, on alleging that she supposed it was a larger one, olaim,title to.more than was
"When the vendor sell* property at puplio without title to even a small part of it, the vendee to ’ whom the adjudication is made cannot be required to oomplete the sale and accept delivery". Pontchartrain vs. Durel, 6 La., 481.

We do not find it necessary to decide, nor do we decide, that the plaintiff had no title to lot 5., All we decide is that plianttff's title to said lot is not, upon its face, olear and free from doubt, and such a title -wul-jr which defendant can be compelled to accept. It is not necessary that a purchaser shmld show that the title tendered to him by his vendor is bad; it is sufficient for him to show that he has reasonable grounds to apprehend litigation. The purchase^ is entitled to a good title; this

"means a title which is not, at the time, incumbered or involved in, or threatened with litigation". Talbot vs. N. O. land Co., 143 La., 263 (268).
"A party is not compelled to accept title which threatens litigation". 49 A., 360; 48 A., 1573.
"The vendor should tnnder to the adjudicates a title free from risks and not one subject to attack". 49 A., 39; 47 A., 121; 41 A., 1104; 40 A., 845; 35 A., 570; 377; 108 La., 143.

It is therefore ordered that the judgment herein be reversed and set aside and that there now be judgment in favor of defendant rejecting plaintiff's demand in both courts, and that plaintiff be condemned to pay costs in both courts.

Judgment reversed.


author: "'baríes V. Cln iborre, Jua-;s.

text:
    Charles E. Claiborne, Judee
    ELLA ALEXANDER Appellant vs Tharp-Bultman-Southeimer Company
    No. 7373
    January 10th, 1921.
   "'baríes V. Cln iborre, Jua-;s.

ELI ALEXANDER vs THARP-BULTMAN-SOUTHEIMER COMPANY

No. 7373.

Appeal from Civil District r'curt, Hon. Geo. K. Theard, Jud.;e.

CHARLA ^.CLAIBORHS, JUDM.

This is a suit under the Y,rork,.,en's Compensation Act No. ?.0 of 1914 and Do. 243 of 1914.

The plaintiff alleges that she is "of lawful age", meaning thereby, according to the sense in vihich those words are used by attornovs at lav/ ir. their petitions, that she is above the age of twenty-one years; that she is the daughter of the late Harrison Alexander; that on January 13th, 1917, her father was employed by the defendants as carriage-driver; that said employment was a hazardous occupation under the Workmen's Companaation Acts; that on said date, while her father was in the performance of his duty of driving a carriage for his employers, he was run into by an automobile and thrown to the ground, and so severely injured that he died as a consequence of his injuries three days afterwards, on January 21st, 1917; that the wife of Harrison Alexander, who was the mother of petitibner is dead, and that petitioner is his sole heir; that at the time of the death of her father petitioner was living with hiu, and was wholly dependent upon him for support and maintenahee; that at the tiue of his injuries he was earning $12 a week; that she is entitled to recover from the defendants compensation amounting to $6 a week for 300 weeks commencing January 31st, 1917 until the sum of $1800 is paid to her.

The defendants excepted on the ground that the petition disclosed no cause of actibn for the following three reasons:

lo That neither Act Ko. 20 of 1914 nor Set 243 of 1916 denominates oarraige-driving as a "hazardous" occupation;

2o That plaintiff being of full age, and neither mentally nor physically incapacitated from earning a living, is not entitled, to.any of the benefits said .acts;

3o Plaintiff did not allege that the defendants had ¡r«■e,frivSd notice or had, knowledge of the accident."

The defendantsalso riled an answer, unaer t'hé practice of the Courts, at the sane time that they filed their except ion..

There was judgment maintaining the exception of no cause of action and rejecting plaintiff's demand. Plaintiff has appealed, hut has not assisted us with any brief.

It It must be concedéd that unless the occupation of Alexari-der was enumerated or classed by the Statute as a "hazardous" occupation he could have no standing in Court to recover compensation under its provisions. Some compensation acts extend their protection to all employments of whatever kind, excepting some only;- other acts limit their protection to specific occupations specially enumerated or mentioned as "hazardous".

"Where the statute is confined to hazardous employments, no employment can be treated as such, unless it is, by a fair construction of the act, declared so ¿to be". C.J. Pamphlet p 41, 42.

The express mention of a number of occupations as "hazardous" necessarily excludes those not mentioned. 146 Pac., 608; 156 N. Y., Supp. 905; 167 App. Div. 617; 153 N.Y., Supp. 162; 72 N. Y., Supp. 91; 111 N. Y., Supp. 833; 1 Honnald on Workmen's Compensation 329.

In the long list of "hazardous" occupations enumerated in 6 2 of Sec. 1 of the Act of 1914, we fail to find that of driver of carriages or vehicles, or any other occupation which, by a reasonable or liberal interpretation, could be assimilated to that of carriage-driver; nor has the plaintiff pointed out to us under what denomination he claims to be included. The learned judge of the District Court was of that opinion.

This question has already received our attention in the case of Dejan vs Ujffy, 14 Ct.App., 230. In that case we decided that the driver of a freight and delivery -agon drawn by a mule employed by a wholesale dealer in fruits did not come within the occupation designated as hazardous in the Statute of 1914. ^

Neither can the plaintiff fir.:1 relief ir.fe 3 or é 4 of Section 1 of the Act which reads as follows:

"3 If there be or arise any hazardous trade, business, or occupation or work other than these hereinabove enunier-erated, it shall come under the provisions of this Act.
The question of whether or not a trade, business, or occution. not named herein is hazardous may be determined by agreement between the employer and employee, or by submission at the instance of either employer or employee to the Judge of the Court which shall have jurisdiction over the employer in a civil case. The decision of the Court shall not toer retroactive in its effect".
4 "An employer and any employee in a trade, business, cr occupation not specified in paragraph 2 of this Section, and any one engaged in a trade, business, or occupation that may not be determined to be hazardous under the operation of paragraph 3 of this Section, may, prior to the accident, voluntarily contract in writing to come under the benefit and protection of the provisions of this act with the same force and effect as though they ^ had been specifically included instead of omitted".

The plaintiff did not allege that, under § 3, he had agreed with the defendants, or that either he or his employer had submitted, a.t any time, to any competent judge, the question of whether Or not his occupation was hazardous. The'leferned judge of the District Court was of opinion that this agreement and this submission must fake place prior to the accident. He said:

"That the agreement must be effected prior to the accident or injury for which compensation is sought is plahly required by Section 3. And that the submission to the Court must also precede the accident results clearly from the provision that the decision of the Court shall not be retroactive. This means that the Court's judgicant as to whether or not the contract comes within the provisions of the act affects the relations of the parties in the future, and does not determine what their relations were in the past". ^

This point was also decided in the same sense by us in the case,already quoted of Dejan vs Ujffy, and a writ of review denied.

I'or doe3 the plaintiff allege that at. any time he liad contracted, with his employer "to come under .the benefit and prpr tection" of the Act of 1914.

II. But if our interpretation of this Statute is wpong; then the defendants arex'entiteled to have their exception maintained on their second ground, that plaintiff being of lawful' age or over twenty-one years of age, and neither mentally nor physically incapacitated from earning a living, cannot recover under the Act.

§c of Section 2 of the Act p 52 says:

"The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: sxxxxxxxxx b xxxxxxxxxxx c. A child or children under the age of eighteen years (or over said age, if physically or mentally incapacitated-from earning) upon the parent with whom he is, or they are, living at the time of the injury of such parent".

The allegation of the plaintiff that she is of lawful age precludes her recovery: and the absence of allegation that she is mentally or physically incapacitated from earning a living, makes her petition disclose no cause of action.

III. Section 11 of the Act of'1914 provides:

"That no proceedings under this act fdr compensation shall be maintained unless a notice of the injury shall have been given to the employer within fifteen days after the accidert, or in case of death within thirty days and unless «SthBrr-a claim for compensation.with respect to such injury or any payment under Section 8 of this Act shall have been made within six months after the date of the injury or death. Such notice may be given or made by any person claiming to be entitled to compensation or by some one on his behalf".

No notice of any kind is alleged to have been given to the defendants.

The judgment is correct, and it is affirmed.

January 10th, 1921.


author: By his Honor John St. Baúl.

text:
    NO. 7555
    SWEET & ORR CO., Inc. VS GEO R. SWEENEY, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OEIMIOH,

By his Honor John St. Baúl.

George R. Sweeney entered plaintiff’s employ as a salesman on commission. He furnished a Bond with Hell Sweeney and Adam KirBer as sureties thereon, for the faithful performance of his duties, including the return of merchandise not accounted for and the repayment of monies drawn in excess of his commissions.

There was judgment Below against all defendants in solido for .f721.1V; Being $664.53 for money overdrawn, and $66.64 as the value of samples not returned. The sureties appeal.

The evidence of Ernest J. Carruthers, plaintiff’s assistant office manager and Bookkeeper, testifying from personal knowledge and unoontradicted, shows conclusively that at the time Geo. E. Sweeney severed his connection with plaintiffs, he had -overdrawn his aooount to the extant of $664.53, and that he had repeatedly Bean furnished with statements showing his-overdraftj which he had never disputed. This witness is oorroBorated (if such corrohoratior Be necessary) By the positive statement of oounsel for plaintiff that Swweney acknowledged to him the existence and amount of this overdraft; which statement the trial judge Believed, and so do we.

June 13th, 1921.

Aa to ths samples, we do not think tha evidence ¿•(►sufficient. Counsel admits that Sweeney, whilst acknowledging tha overdraft, yet flatly denied any liability whatever for tha samples; and that whan ha wrote to plaintifffor Info rotation regarding tha sama they answered that they oould not give it, "as they had nona at thalr command."

fha Judgment appealed from la therefore amended so as to reduce the amount allowed against Neil Sweeney and Adam Eftrber (in solido) to Six Hundred and Sixty-four Dollars, and fifty-three oants ($664.60), with legal Interest from judloial demand and the costs of tha court below. And as thus amended said judgment la affirmed; plaintiff to pay oosts of appeal.

Hew Orleans la,


text:
    Charles F.Claiborne, Judge.
    B. & H. BLUM VS WM. EDENBORN.
    No. 7693.
    December 20th, 1920.
   B. & H. BLUM VS WM. EDENBORN

No. 7693

Appeal from Civil District Court, Hon. Geo. H. Th'eard, Judge.

CHARLES F. CLAIBORNE, JUDGE.

This is a suit for the return of money paid by plaintiff to defendant on account of a promise of sale. It rosifiled November 20th, 1916.

The suit is brought upon the following contract:

$276.00 Shreveport, La., Mar.23d, 1916
For value received I or either of us, promise to pay to the order of William Edenborn at the office of his duly authorized agent L. M.Mc Farlin, in the L.R. and N. Building, Shreveport, La., (full consderation) Two Hundred and seventy-five Dollars for Lot No. Two in Block No. Three "Lenzburg" Red River Pariái, La., on the following terms: $25.00'Cash paid to Agent making sale, receipt hereby acknowledged, and the balance $250.00 at the rate of $25.00 per month without interest, and when purchase price has been so paid, William Eden-born agrees to convey to the purchaser,his heirs or assigns, said described lot by deed. Purchaser declares that he intends and hereby agrees to improve the lot by erecting thereon a building within three months from date hereof, which agreement is part of the consideration of this purchase; and it is understood that time is of the essence of this contract, and should purchaser fail to improve the property as, and in the time stated, or be in arrears on his monthly payments a longer period than 30 days, William Edenborn will have the right to forfeit all moneys paid as liquidated damages, ard said purchase shall forfeit all right whatever hereunder", xxxxxxxxxxxxxxxxxxxxxxxxxxx
"Signed" William Edenborn
L. K. Me Farlin,
sales agent.
"Dtnvn Bros."

Petitioners averred that by the above contract Edenborn agreed to sell to them the lot of ground therein described for the price therein stated; that at the moment of signing said contract they paid to the defendant $25, and that they also paid to him $25 during each of the following nine months of April, May, June,

July, August, September), October, November, ■ and December 1915, making in all ten payments aggregating the sum of $250; that they tendered to the defendant the last nayment of $25 for which they demanded titles to said lot, which defendant failed to give to them; that whilo said lot was in the possession of the defendant and at his risk said lot was washed away into the river, and therefore the consideration of the contract failed, and tSaey are entitled to a return of the portion of the price raid by them to the defendant. They pray for judgnent for $250.

The defendant admitted the contract sued on but averred that the plaintiffs had failed to allege that they had complied with that part of the contract requiring them to construct improvements upon the lot, and until they did so, they showed no cause of action; he admits that a part of the lot was waáied away prior to the last tender., but denies that the lot was in his possession or at his risk: he avers on the contrary that the lot was at the risk of the plaintiffs; that the washing away of said lot was occasioned by an act of God over which he had no control, and that plaintiffs can only demand delivery of the lot on the condition on which it was on the payment.of the last installment of $25.

There was judgment for plaintiffs, and defendant has appealed.

Harry Blum testified that Edenborn had possession of the lot all the time and paid the taxes thereon; the defendant never called upon them to erect any buildings on the lot; since the lot has washed away it has no value; in its. present dondition the lot is of no use to them; defendant never made any complaint of the time or manner of making the several payments, nor did he at any time advise them to take possession of the lot; at the time he offered the last payment, Kc Earland refused to ee Oept

it because he was unable to give a deed to the lot

"as he stated it was in the river".

Re íb a civil engineer for the Louisiana Railway & Navigation Co,; ho is familiar with the village of Lenzhurg and with Lot 2 of Square 3, he examined said lot in connection with the sub-división and the survey of the river on a great many occasions; he made a survey in October 1915; the last examination made by him wa3 on January 4th, 1919 a3 shown by the map att&ohed; all of .it has Washed away; caving has been intermittent during the high water season 3inoe March 1918; on March 23d, 1915 the bank was more than 200 feet away, ano. on December 21st, 1916 was approximately 200 feet away; on March 23d, 1915 and on Beaember 21st, 1915 none of the lots in block 3 had been reached by the river; at the present time all of them are washed away.

lo There is no force in defendant's plea that plaintiffs' petition discloses no cause of action because they have failed to allege a compliance with their obligation to erect a building upon the lot. It is true that, in commutative contracts, the party who would oall upon the other to perform his oontraot must show that he has offered or performed that whioh on his part he was obligated to perform. C. C., 1913 (1907), 1914 (1908)

Default is also a prerequisite to an action for a rescission of'a contract. 0. C., 1912 (1908) .

But it has been decided under all three articles, that a tender or default is not essential when it appears that the obligor is unable to perform the contract. 8 La., 522; 8 R., 161; 9 R., 377; 2 A., 957; 4 A., 24; 19 A., 573, 574; 20 A., 384; 22 A., 283, 234; 29 A., 329, 668; 36 A., 425; 37 A., 472, 493; 39 A., 586; 42 A., 233; 47 A., 1232; 108 La., 8; 119 La., 40; 120 La., 1055.

It would have been an Impossible task for the plaintiff to have attempted to build upon a lot which had been washed aWay and equally 83 impossible for the defendant to have delivered the lot. Lex nemlnem oogit ad vana.

20 The document sued upon Í3 a promise of sale only, and not a complete aale. A promise of 3ale Í3 not translative of property; it does not change the ownership, nor put the thing sold at the risk of the person to whom the promise is made. Such was our opinion in Carre vs Mutual Bldg. Ass'n. So. 7315 delivered June 4th, 1918, resting upon the following deoislons. 17 La., 449: 10 A., 160; 13 A., 361; 14 A., 606; 15 A., 483; 29 A., 663; 34 A., 617; 40 A., 712; 41 A., 1107; 45 A., 108; 121 La., 167; 143 La., 509.

It follows that the rule of law "Res perit domino" must prevail, and that when the lot was washed away it was the loss of the defendant and not of the plaintiff.

The obligation of the seller is to deliver the thing sold. C. C., 2475 (2450).

If the seller fails to make delivery, the buyer will be at liberty to demand a cancelling of the sale. C.C.,2485 (2461)*

In all oases where the buyer has a right to recede from the oontraot, the seller Í3 bound to make him restitution of the price. G. C., 2497 (2473); If th* buyer be evicted, he has a right to olaim restitution of the price. C. C., 2506 (2482).

In Page vs Loeffler, 146 La., 890, the Court said:

"An agreement for the sale and purchase of real estate does not operate a change of title and place the property at the risk of the prospective purchaser, the more especially when entered into subjeot to suspensive oonditions specified or well understood. Hence, where the property i3 destroyed by an aot of Providence, pending the fulfillment of the oonditions, the loss falls upon the seller, and he has no right of aotion, either for specifio performance or damages".

In Talbot vs N. O. Land Co., 143 La., 263, the plaintiff had made a number of partial payments on account of a "Bond for Deed", -an promise of sale. Before the last installment had been paid by plaintiff, the future purchaser, a third party filed a petitory aotion against the proposed vendor and obtained judgment against him. The plaintiff sued for the reimbursement of the payments made by him, and obtained judgment.

judgment affirmed,

December 20th, 1920.


author: Dinkel q.l. Ij

text:
    NO. 7776
    COURT OF APPEAL PARISH OF ORLEANS.
    JULIUS G. MEYERS versus FRANK ROUSEO.
    Di: ecí Jl; J,
   Dinkel q.l. Ij

Alikin; -Iso th. t the acciient v; g cuuj nd e..tirsly through the fault, ns.'ligence .ni gross c-. rcleesness of the oUfendcnt in permitting a vicious and uncontrollable horse to ho upon the public thoroughfare and in no i..a nor vas contribute.! x by pi. in-i'ff but that he was absolutely unable tc ovoid s', id accident.

That as a result Of said e.ooident plaintiff s is Sained injuries to his left arm and body and from v/hioh he claimed he had suffered up to the filing of this suit. He alleges further th- t he had incurred expenses for doctor and medicines in the sum cf §£5.00 and for pi-in and suffering he w.--s entitled to the sum of $350.00 ...nd he prayed for judgment for both amounts.

The answer of the defendant denied the accident was caused entirely through the fault and negligence of himself by permitting a vicious and unócnircllable horse on the street, claiming that the horbe in question v/as Same and gentle and had been th- t way for a period of four years prior So the filing of the present suit and never should any trace of vioiGUsness.

The defsnáont1 s pr-yer is finally for o. dismissal of this action.

The first witness examined in this case on behalf of plaintiff was one A. V. Dusand.

He testifies that he was the Traffio Policeman stationed on the Ksix lleutral Ground, Intersection of Canal, Chartres and Camp Streets; he saw the horse strike a float and the buggy go to pieces; that plaintiff was crossing Chartres Street as the horse kept coming, plaintiff being knooked down; he was taken into a drug store at the oorner of Canal & Chartres Street where temporarily hi3 wounds were dressed; he did not make any attempt to check the horse because the animal w.-s pretty fiery; he frequently when on his beat let this horse cross over the street because he would not stand; knows the horse well and knows that the horse was always fiery and being the one who turned the semiphore he always gave the horse the right of way because he did not want to see anyone hurt; he has had quite a good deal of eiqjerienoe running horse, driving a float, bres-king in animals and driving a wagon.

The next witness was one S. Mandella.

He was standing at the oorner of Canal and Chartres Streets at the time of this aooident. "Going into May's old Drug Store at the oorner of Chartres and Canal and coming down to the oorner I saw plaintiff on the opposite side of the street; everybody was looking towards Chartres Street and as I got to the oorner I saw this horse running.away and the buggy ran up against a float; the horse continued running up Canal Street and went up Camp Street; the' officer in charge tried to stop him but he could not; knows plaintiff very well, lives across the street from hiB house, saw the horse knock plaintiff down and several people pioked him up and brought him in-

0. ¶. Miller another wintess for plaintiff.

He did not see the aooident but subsequently going into drug store saw plaintiff sitting in one of the arm ohairs; found him very weak and nervous and he looked to be hurt inwardly; worked in the same offioe that plaintiff worked.

Plaintiff himself was the next witness and substantially his statement is to the following effeot:

"I was leaving the offioe to go home about five o'olook in the evening, crossing Chartres Street, X was very careful, crossed over and took the best pavement to get to the Prytania Car; X saw a young man;I didn't know who he was and from his actions and his looks I beoame satisfied that there was something wrong and I tried to get over to the Godohaux side of the Street; I didn't know what was coming and I oould not avoid it and this horse was ooming along; I heard his hoofs and he threw me down and injured me, my leg was blaok and blue, my arm was all bruised and I was in a very nervous state; in the drug store they gave me something to quiet my nerves; afterwards was taken home and attended to there." In speaking of his injuries, plaintiff says "I suffered quite a long while and I still have not got the use of my left arm as I had it before this accident and I suffered possibly for two months afterwards, I could not get out my ledger, being a bookkeeper, and hsd to be assisted in having the book hxEgk brought to me and it took several months before I oould help myself and even today I havn't got the power I formerly had.

On cross examination of this witness an attempt was made to prove a compromise had been offered by plaintiff; that he had. agreed to aocept the sum of $40.00 in full settlement of his oalimj the plaintiff absolutely denied making any such offer and if he had it not being in writing, oould not be used in this. case.

For defendant the witness first to testify was Mr. Felix Rouseo,

When asked these' questions:

Q. Hie are investigating an aocident that occurred on September 18th, 1917 about five o'oloolc in the evening when Mr. Meyers the plaintiff claims to have been injured by a horse owned by Mr. Frank Rouseo, whioh ran away; will you relate in your own way wh&t you know about that sac aocident?
A. Yes sir; that animal got soared on Chartres between Canal & Customhouse from a mo.toroyole.
Q. Were you driving that horse?
A, Yes sir.
0,. Tell the Court what happened?
A. He go soared by a motoroyole on Chartres between Customhouse and Canal and he made two or three springs end hit the float,
0. Were you thrown from the buggy at the time of the oollission with the float?
A. Yes sir.
o. You were knocked unconoious?
A. yos sir.
o. You know nothing ehout the accident to the . laintiff in this os.se?
A. He sir.
Q. V.'-. a ;h..t hor3e vicious animal?
A. Ho sir? he is a pie' 3ing sninnl, I hove driven him for tv/c years.

On cross examination this -witness persisted that this w s i- gentle xkx horse uid the accident occurred through fr:. ht from the motorcycle.

F. E. Dole, the next witness for the defendant did not see this aooident; knows the horse in question. is a fine driving horse and sorrel; has known that horse for six or seven years, he was a tsne and gentle animal; had driven him fifty or sixty times all over the oity, over parades and everywhere else, never heard of that horse running away before.

The next witness, Joseph Sarro, knows kx nothing of the aooident in question; knew the horse for a long while; he is a very pretty shrrel horse, a fanoy horse, gentle, easily guided, any lady oan drive him; never knew or heard of his having run away prior to this time.

We have thus substantially given the main portions of the testimony of all witnesses who testified in this oase, pro and oon. It is very evident from the testimony particularly that of the offioer who knew the animal for a long time, had oooassion on his beat to watoh him very olosely; he was a very fiery horse and on evejy oooassion that it was possible to turn the semiphore to give the horse the right of way he did so in order that no one would be injured; he has no interest in this oase whatsoever and has thoroughly explained to our satisfaction his knowledge of animals girsx prior to his beooming a policeman and we are satisfied that his statements are true in every partioulcr; he saw thief aooident, oould not prevent it beoause he was afraid of the animal in question, knew his oharooter, that if he attemped to oheok him he would either be seriously injured himself or killed outright.

The other tesxti witnesses' testimony from which we have quoted satisfies us that the. plaintiff in this suit was injured just as testified to by him and that from the injuries after being attended to at the drug store subsequently employed a physioian, bought medicines and for quite a while, although going to his business the very next day, he became a hkxxxkk nervous man and besides being a bookkeeper oould not handle his ledger but was compelled to have others do it for him.

The son of the defendant who we.s driving the animal claims that the accident occurred because a motoroycle ran into him, the horse run away and collided with a float knocking the buggy to pieces and throwing him therefrom knocking him unconcious so th'.'.t he h d to be telcen to the Chsrity Hoccital for, at tsntion.

It is a strange coincidence that no one heard or saw the motoroycle in cuestión save end except un this witnejs*. If is/fortunate, if it be true, that there were no other witnesso: present to testify to the same fc.ot, if it w: s a fact. Being uncon-oicus he was unable t.nd did not see plaintiff in this case at the time of the accident nor afterw-rds; beyond his te-timony the testimony of the other witnesses on behalf Of the defendant do no impress us very favorably; they all testify as to this being a gentle horse,never vicious, ooul.i be driven by a Iddy and ther testimony to like effect. We áre inolir.ed to the believe tlr. t this is not true; the character of this horse ia established by the e-trolman in thi3 o< se who he,d seen this horse time and again, had watohed his movements, knew he vr. 3 ¿, vicious ;ni..al and not . ishing tc see ..r.ycne hurt always gave 'chis horse the right of way.

For Sunt, t.-ly for the defe.. 1'nt in this oase, I-, intiff was not seriously hurt but t. stroks of this oh -renter, irrespective of the bodily injuries i3 sufficient to justify a reescni'tle judgment such t.s rendered by the lev-rnel Jud e in this evse.

We have onrefully examined this record; vie have read every line of the testimony, pro and oon, and we are convinoed plaintiff has maintained his aotion Just as the Court aquo decided he had.

Issues of fact mainly involved.

"The owner of an enimel is responsible for the damage he h.s caued and the burden is on the owner to prove that he was without fault, and did all that Was possible to prevent the aooident.

An owner, knowing the oharaoter of the horse, uses him in frequented places, does so at his own ris k; it is only where the happening oould not reasonably be anticipated by him, that the risk may be said to be assumed by the public."

Aymani vs. Frank Russo, 6th Court of Appeal, p. 169.

For the Seasons assigned it is ordered, adjudged and deoreed that the Judgment of the Lower Court be and it is hereby affirmed, with oosts of both courts to be paid by the defendant.

-Judgment Affirmed-


author: -Elnkelenlel- _J,

text:
    Court of Appeal Parish of Orleans
    No. 7823
    J. D. HALL PLAINTIFF AND APPELLEE VERSUS ZION TRAVELER'S SECOND BAPTIST CHURCH OF SIXTH DISTRICT OF NEW ORLEANS DEFENDANT AND APPELLANT
   -Elnkelenlel- _J,

In ord|rtjjj32£>p3rly understand the issues in this ease No. 115.504, Division 'A', filed A February, 21st. 1916. This being on the identical note filed in this case, but the plaintiff in that case, a transferee, was one Isidore Singer and the suit was on an obligation for SS29.45, as the assignee, and holder, and owner of the note in question which was dated potober, 18th. 1915, payable on demand, at sixty days after its date to the order of Rev. J. D. Hall, Pastor, and bearing interest at the rate of sight per cent per annum from date until paid.

To thii petition Jjhere was filed a plea; that defendant bbing an inoorporated society, under laws and by-laws, pleaded, that the signors of the obligation, being the same as in the present suit, had no authority from the defendant to execute same. That plea -was sustained by His Honor, Judge Cage.

Subsequently the present litigation in the name of the present plaintiff as holder and owner was instituted» and in addition to the allegation added the following;

" If for any reason the Court should hold that said note is not binding upon said defendant, then petitioner avere that said note wae given to represent an indebtedness by said Church to petitioner for services rendered and that said servioes were well worth the sum ñamad."

Ths defendant filed various pleas amongst them one of res adjudioata, nnK&hhtaaHpagswt', another prescription , and finally the answdr which denied in to to all claims of plaintiff. The Judge a quo decided to Overrule all pleas, to let the evidence go in, and on that evidence and the pleas this case was finally determined.

The plaintiff in his own behalf teetified substantially; that he was engaged as Pastor for defendant Church at $50. per month, during and within the time specified; that there was a balance due him to the amount stated and there were two credits on the obligation in question, one November 15th, that of $40. and one January 5th. of $13., and there remained a balanoe due him as claimed. His was the only testimony as to these payments.

The other witnesses, three of them, signors of the obligation endevored to prove payment for the entire amount, but in our opinion, absolutely failed so to do. Payment as such was pot specially pleaded, but his Honoe» the Judge who tried this case in order to do justice, in our opinion, HjtlMMtittaBMBM and let the evidence go im to the effect, to which there was exception, but the whole case was tried upon it's merits finally and adjudicated in favor of plaintiff.

He are satisfied froma. a careful investigation of this reoord that the Judge gave defendants every opportunity to prove if they oould payments; every door was opened in order to substantiate each and every claim asserted but without avail.

So far as the law of the oase is concerned our Supreme Court having frequently decided the question of res adju-dioata; that where a suit was pending, another subsequently filed interruption of prescription was clearly had. See, Robinson Reports Vol. 1. p. 393. Bell vs. Mix, and authori -xies therein cited.

Our own Court in the case of Maurer vs. Vizard, 6 Court of Appeal, P.78, -Syllabus- "Where the claim sued upon in * both suits are identical, neither error as to form of aotion nor the final rejection of the demand in the first suit will avoid interruption of prescription, which reoom--mences to run only from the cessation 0f interruption". C. 0. '3518, 3090, 3090. " Jt. is Wb judicial demand whioh interrupts prescription and it suffices if plaintiff lias any color of right for himself and others." 116 La. 650, affirming 17 La. 315 and 41st. Ann.373.

A careful examination of both the faots and tlie law in this case satisfies us that the judgment rendered by the Judge a duo who saw and heard the witnesses was oorreot.

For the reasons herein assigned the judgment of the lower Court appealed from is hereby affirmed.

Judgment affirmed.


author: Dlnkelsntel- J

text:
    Salvadore E. Constanza- -vs- N. O. Railway & Light Co.
    No. 7824.
    Court of Appeal. Parish of Orleans.
    Dlnkelsplel. J.
   Dlnkelsntel- J

This action is 'Brought by plaintiff against defendant based on the following facts as we gather them from the record:

That on or about 13th. September, 1916, at about the hour of 8 o'clock in the morning, plaintiff had his mule and wagon standing on the gutter edge of Tumain Street, between recatur and Chartres streets, where it had a right to be, the wheels of the wagon being chained to prevent it's movement until plaintiff was ready to drive off; that while the mule and wagon was so stationed at this point, Tohoupitoulas car Sfo. 89, owned, used and operated by defendant, came out Dumaine Street from recatur street going towards the woods and as it neared .the mule and wagon tne motorman of the oar caused the fender, in front of the cay to suddenly and violently drop, wiich sudden, unusual ’and unreasonable action , did freighten and. scare the mule, causing the mule to jump ir. front of the oar inflicting damage upon plaintiff's property as hereinafter described.

flair-tiff further alleges, that he left the mule and wagon in charge of two men, and he had observed and taken all proper caution and oare, therefore he was not guilty of negligence.

That the accident was caused solely by the abrupt, careless and sudden manner in which the mctorman of the oar negligently dropped the fender by lifting and elevating it on account of obstructions and repairs being done, at tne time, on Decatur Street, and upon which Street the car had been running just before turning into Tumaine Street, that said fender should have keen lowered by the motorman In a careful manner and not In the suden, abrupt, violent, unreasonable and unnatural manner in which it was done thereby avoiding the injury and damage.

That plaintiff suffered damages, itemizing his claim as follows,- Loss of MuIbb, $300.00. Doctors services $17.00. Damage to wagon, $16.65. Loss, being with out a mule and wagon, $73.50. Eamage to harness, $5.00. Total, $412.15. for which amount he prayes for judgment.

The answer denies indebtedness to plaintiff; also the truth of the flacts alleged in the 4th. 5th. 6th. 7th. 8th. and 9th. articles of the petition, and then goes on to assert; that on 12th. “September, 1916, about 8.30 o’clock, in the morning, plaintiff's mule was attached to a wagon standing on Eumaine street, near Deoatur Street, and as one of defendant's oars was about to pass the team, the mule suddenly shied on to the trac# in front of the car, at a time when it was impossible for the motorman to stop the car oweing to the brief time and the short distance within whiok to act.

Further answering, defendant avers, that the mule had been left on' the street with no one in charge, which oonduot is contrary to City Ordinances in such case made and provided, and that the owner thereof was guilty of negligence in so leaving the team with — out a driver Or anyone to guard same against accident. Hence, defendant prays for dismissal of the suit. The testimony, in this case, consists of that of plaintiff, Dr. Vincent Leroca, J. F. Bollwinkle, Vincent Randazzo, Henry Smith, Hrs. William Fisher, Edward Larrieu, Edward Raffo and Charles F. Fuppert, and they contradict one another on material and immaterial statements., and we 3es no good r¿asen way any should be quoted.

Ti.e plaintiff and l.is witnesses, asserted and ts3tiii led to tie facta 3et up in i.is petition, ti.ey swore ti:at tie mule and wagon together with the harness was injured just ae claimed, through ti.e lifting ox the fender, without any cause, violently striking the u.iile in vital parte, causing ti.e injury as claimed. There is no dispute as the amount of the value of the mule, wagon and harness etc., the itemized claim is complete and satisfactorily accounted for. Or. tue other hand, several witnesses and the motorman, on behalf of defendant company, wnilst not ae positive in their testimony, 'oy any means, as those of plaintiff and his witnesses, nevertheless assert contrary.

The $Si»l Judg», after seeing and hearing tne wit-neeees, in an able written opinion decided in favor of plaintiff, and we adopy that opinion as our opinion, which is as follows;-

"This is a suit for damages resulting from the collision of a street car and plaintiff's mule and wagon.
The evidence is very conflicting. The plaintiff and his witnesses swere that the mule ivas facing the river; that tne mule received a blow from a broken wagon shaft which resulted in the death of the animal; that the damage to the wagon and harness was substantial.
The motorman and two witnesses,swore that the multe was facing the rear of town, which must be untrue for the reason, that a blow inflicted, both vehicles pointing in that sireo'tion, would simply shove the animal and vehicle aside, with-serious damas®. These witnesses testified that the wagcn was not broken, that no damage was done it or the harness. I beleive this incorrect; that tne witnesses who so testified were non-ohservant, in other words, I feel, that the accident occurred practically as stated in the petition and that defendant is liable for loss of the mule and for damage to wagon and harness Judgment for plaintiff. Rule ¿300. Cootor fees, ¿17, Wagon, ¿16.65. Harness, ¿5. — ¿336.65, *
For the reasons assigned by the Judge a quo, in the written opinion here quoted, it is ordered, adjudged and decreed, that the judgment of the lower Court, be and the same is hereby affirmed Fefendant to pay costs of both Courts.

-Judgment Affirmed-


text:
    Charles F. Claiborne Judge.
    CHARLES BAKER VS BELLE-CHASSE LAND CO.
    No. 7832
    November 8th, 1920.
   CHARLES BAKER VS BELLE-CHASSE LAND CO.

No. 7832

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

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit for an alleged conversion of property. The facts are as follows:

On June 28th, 1917, the defendant company sold to Goldstein a lot of scrap iron or junk lying on its plantation in Plaquemine Parish, for the price of $200 cash. On July 23d, 1917-, Goldstein sold the same to Richmond for a price apparently of $195, Richmond sold 18 tons of this junk a short time after for $19 a ton, and on September 18th, 1917, he testified he sold the remainder to Baker for $350. On December 27th, 191$, the defendant sold the same junk for $105 to one Willcom, who in turn sold to Glaser for $22j3^^>^_

The plajintiff^filed this kuit in February 1918; he alleged that the defendant had no right to sell this junk to Willcom: that it was his property,'having previously purchased the same from Richmond, as defendant wall knew? that the junk consisted of cut boilers and drums, sugar tanks, smoke stacks, one fly wheel, cog wheels and one steel shaft, wéighing in all seventy tons; "that at the time of said purchase he had an opportunity to sell said property at a sale price of $24.50 per ton"; and he prayed for judgnent for 70 times $24.50/or $1715.00.

Defendantidenied snv indebtedness to plaintiff; denied that the junk¡consistéd of,the items enumferated above, or that ■it weighed seventy tons, denied that it had the value placed upon it by the plaintiff; and denied that they knew that he had purchased from Richmond. Further answering defendant .averred».

"That on June 28th, 1917, it sold' to Max Richmond and M,Goldstein the scattered scrap iron on its planea-tion in Plaquemines Parish for the sous of $200500» with ure understanding and on the condition that same should be removed within sixty days and that after the exoiration of sixty days said vendee viould have no right, title, or interest therein; and that a few days before the expiration of said term defendant agreed to an extension of the term for removal, for sixty days additional; that within the said extended tern of renoval and- about forty days before the expiration thereof ssid l.'.ax Richmond cane to defendant's secretary and represented that he had an opportunity to sell the scrap iron, but could not do so without a written statement showing sane had been paid for; that in order to accomodate said Richmond defendant's secretary gave him the statement referred to in Article V of plaintiff's oetition, vjhich reads as follows:
"September 18tb, 1917.
To vihom it may concern:
This is to certify that we have received from I.;ax Richmond full payment for scrap iron sold to M. Goldstein and Kax Richmond".
"Signed" Belle-Ohasse Land, Co., Ltd.
B.S. Braswell, Secy-Treas."
"that about the same time, Plaintiff came to defendant's office and represented to its secretary that he ■.vas contemplating the purchase of said scrap iron and asked for verification of the representations of said Richmond that 'he had the right to sell same, and inquired about the aforesaid conditions of removal, that defendant explained to plaintiff the contract with said Richmond, the conditions v/ith reference to removal, and the extension of the tena, and discussed with plaintiff the approaching expiration of the extended tena for removal; and that if plaintiff accuired from said Richmond any interest in said scrap iron in good faith, which is denied, he accuired such interest with full knowledge of the limitation of Richmond's rights, and especially with full knowlSdge of the approaching expiration of the extended tern for renoval, and that, he accuired no greater rights than said Richmond had; that plaintiff nade no effort to remove the scrap iron within the term of renoval; that defendant never heard anything further from him, and never knew whether be had bought the scran iron or not, and that in order to get the scrap iron off of the place and out of the way, defendant, on the 27th day of December, sold the scrap iron to another party under the same conditions for $165, and granted a term of thirty days for its removal; that within the term of thirty days_ said last narty removed part of the iron, abandoning his right to the remainder which is still on the dace, and in the way and interfering Tfith defendant's efforts to clean it un".

There was judgment for nlaiitiff for $715.

In its reasons for judgment the Court said that Richmond had purchased from the defendant; that he had afterwards sold to plaintiff; that plaintiff acted upon the faith of the letter of the defendant dated September 18th, 1917 copied hereinabove; that the defendant had no right to sell to Wilkom without notice to Baker; that there were no less than 65 tons of junk; that Wilkon sold a part of the junk at $11 a ton, which fixed its value for the whole at $715.

Rr ora this judgnent the defendant has appealed.

On behalf of the defendant, B. S. Braswell, its Secretary-Treasurer, testified that the scrap iron on Belle-Chasse was sold to Richmond and Goldstein for $200,

"giving them 60 days within which to remove it , and if not removed to revert to the Company. Before those 60 days had exoired Mr.Richmond came to me and he said that he wanted more time; that he had trouble in getting laboir, he wanted more time Within which to remove it from the place, and we granted him 60 days more time, x x Before those 60 days had expired Mr. Richmond told me that he had been drafted into the array, and that he wanted to sell this iron to somebody else, and asked us if we would give him a receipt showing that 'he had paid for it, that he might show to anybody interested in the purchase, of it.
1 gave him this receint showing that he had paid for it. After that Ur. Baker came in and asked me about the scrap iron, if Richmond owned it. I told him that he did and that he had about 40 days within which to remove it; if he bought it that he would have to remove it within that time or it would revert to the Company. x x x He (Baker) said that he wanted to buy it, and we discussed the tine that he had. I told Ur. Baker at the tine that there was about 40 days in which to get it off of the property. x x '.?e sold the property a second time after we had sold it to Piclmond and Goldstein, because their time had expired over 60 days and the property belonged to us".

The capital of the Company is $200,000 and witness owns $2,000 of the stock. Ben Boudreaux, also for the defendant, testified that be v/as employed by the Belle Chasse Land Company as agent; that he 7/as the salesman of the junk; that Goldstein came in one day and offered $150 for the junk, and they finally agreed to sell it for $200; that hé had a memorandum of the sale which he had wade with Ur.Braswell; (the Court then told him he could not use it); that

"it was distinctly understood that be wa3 to remove it within 60 days";

L;r.Braswell

"it was old scran iron and he wanted to get rid of it, and that be wanted it removed within 60 days, that is as far as he remembered; Goldstein gave him $50, and he agreed to remove it in 60 days; and "if he didn't remove it, it would revert back to Ur.Braswell, the Belle-Chasse Land Company".

J. D.Barksdale is the President of the defendant Company; he was asked if kr.Braswell had ever consulted him about an extension on a sale of scrap iron; on objection to the question it- was ruled out; be said their purpose was to sell the scrap iron-'in order to clean up tre land and offer it for sale in connection with a campaign they were getting up; a man representing himself as Lr.' Richmond same into their office and asked for an extension, and witness talked it over with I'r.Braswell; six months later he directed the sale of the scrap iron because neither Goldstein nor Richmond had removed it.

Mr. Boudreaux testified that it is customary to allow 30 days for removal of scrap iron; that he had handled considerable transactions of that kind

"both up and down the riveer and on both sides".
Joseph Kelan, a junk dealter, was asked:
"Víhat is the custom as to the removal of scrap iron that you have bought"?

On objection,the question vías ruled out.

On behalf of the plaintiff Max Richmond tefetified as follows:

Q. '.fas any time limit placed by you on the removal of that stuff from the place?
A. No, no time limit at all.
Q. Never specified?
A. Never.
Q. ’¡fas anything said to Baker in your presence by Bras-well about the time limit in which the stuff was to be removed,
A. Mr. Baker and this gentleman-here was speaking together at that time, what they said amongst them I don't know, xxx
Q. Do you remember if this man Braswell said to Baker that this iron must be removed within sixty days?
A. No, I don't see how he could have told Baker that when he never told me and Goldstein that".

It does not appear what occupation Richmond pursued, or whether he had any occupation at all.

The plaintiff, Baker, is an itinerant junk-dealer for the last ten years, he describes himself as follows:

"I am a local buyer, I don't have any place. I just buy and sell".

He continued:

"Finally v/ent to the Belle Chasse Company office and the manager gave me a clear receipt. He said everything is O.K. I asked him if he is got any limit and how long he had to keep the scrap iron there. He said, there is not limit at all, you can keep it as long as you want". XXX
C. "',7as anything said to you at that time as to when the iron should be reroved?
A. he give we that lettyr when I told him 1 wanted him
to out down ir that letter there is no limit when I remove the iron. I told him I could not re. ove it so ruick.
He said, "you don’t need, you pro ahead and remove the
iron any time you want".
Q. 7/ere you notified at the time that letter wa3 delivered to you, that there was a tir.e limit in rhich this scrao iron was to be removed?
A. No, sir."

The recital of this testimony shows conclusively that the preponderance Í3 with the defendant. It wight be said that it is immaterial whether any tim.e limit entered into the contract between Richmond and the Company, as it could not affect Baker. That nifcht be; but at the same time, it might serve to corroborate the testimony that there was r.Í30 a tim.e linit^tA tie Baker ««s-issct. Richmond stands alone in sayin.'-: that he was not limited as to time. He is contradicted by Braswell, Boudreaux, ard Barks-dale. Therefore, we must assume that there was a limit as to Richmond.

Baker also stands alone in his testimony. For while he states that lie asked Braswell whether there was a tim.e limit and that the subject wa3 discussed in the conversation with him, Richmond swears he heard nothing of the kind. If a time limit was spoken of and Richmond did not hear it, then it is possible that Braswell did limit the time notwithstanding what Richmond says.

So that the testimony of Baker is pitted against, that of Braswell apd Boudreaux and of Richmond. Perhaps, if it had beer, admitted in evidence , tho memorándum of the sale which Boudreaux ar.rt Braswell had made together, would have settled the controversy.

We are,therefore,constrained to come to the conclusion that there was a time limit as to both Richmond and Baker and that,.at the time the plaintiff vifited the defendant’s office, he was informed that the iron had to be removed within forty days.

'íe feel safe in corning to this conclusion by the additional feet that there is nothing certain ir. nlair.tiff's case excent the sale to Goldstein for $?.00; the rent is shrouded in doubt.

Richmond does r.ot remember how much he Os id to Gold-stein. Yet it anpears by a recéint offered in evidence by him, but not ir. the record, that he naid $195.77.

The transaction between Richmond ard Bp.ker is not established with certainty.

Baker testified first, and he said:
Q. Row much cash did you nay for the scran iron that you bought from l'.s.x Richmond?
A. I don't remember how much.
Q. Row much in a check did you nay him?
A. I don't remember, I naid bin some ir. check ard some cash.
Q. On what bank vías the check?
A. Citizens.
Q. Trill you nroduce that cancelled check that you naid to him.
A. Ho, I can't.
Q. Why?
A. I don't keep track of those checks, I destroy those checks,
Q. When did you destroy them?
A. Always, as soon as I get them from the Bank.
The Court. As soon as you have your book balanced?
A. Yes.
Richmond followed:

As stated by defendant in ar ‘uwent and in his brief, and not denied, before recess he testified as follows:

After the conversation 'with Braswell, Baker "come outside and gave me a check for the iron".
After recess his testimony was as follows:
Q. How were you paid by Baker?
A. It v/as some in cash and some in a check.
-Q. I thought you said by a check?
A. I remember, I did aBk hi» for cash, and he oaid me what he did have in cash and the balance in a check.
Q. How much in cash?
A. I don't remember.
Q. On what bank was the check?
A. I can't remember.
Q. That did you do with the check?
A. I cashed it.
Q. ’.There?
A. I don't remember where I cashed it.

It is not explained where, and when, Baker wrote that check, whether before or after leaving Braswell's office.

The cuantity of 3cran iron on the Plantation at the time of the sale by the defendant to Goldstein anoéars nowhere. Richmond being examined 3ays:

Q. Do you know how many tons of scran iron there was down there ’when you bought it?
A. I can about tell you about how many boilers were there. On the nlace was four. Two in a ditch vrhere they cu' the sides out so the water could drain through’it; two of the same kind of boilers as long as from where I am sitting to that first seat.
Q. Do you know how many tons a boiler weight?
A. Goldstein an old exnerienced man said they weighed 5 tons each/.
0;. hr. Richmond did you see any sugar tanks the^e?
A. Yes.
Q. Do you know how many sugor tanks were there?
A. To tell you exactly now, I can't say exactly, but I know there ivas about five and six sugar tan'-s, I believ»
Q. Hot less than five nor more than six?
A. Ko, I don't think.
Q. There was a large fly wheel,groove wheels, what they call a balancing wheel?
A. They had so much junk scattered around there that I just can't remember".
Q. Row much did you move off the nlace?
A. That v;as before I ever made the deal with Ur.Baker.
Q. Hoví much did you move off before you made the deal with Hr. Baker?
A. Sightsen tons.
Plaintiff testified:
"Mr. Richmond told me he was drafted to go to the army, he has some scran iron and wants to sell it, and 1 went with him to Belle Chasse. We estimated the scran from 65 to 75 tons.
Q. In what condition was the iron wheh you saw it?
A. There was a lot of the scrap that was cut, oLrriéd off and broken un in small nieces, I think two boilers was left".
The Court:
Was the boilers cut into small nieces?
A. One or two boilers was not cut up.

Joseph lielan testified on behalf of defendant. He livéd on Belle Chasse for three years and left there only three months ago; lived there in 1917 and 1S18; has been a junk dealer for tan years; thinks there were about 2.0 tons of junk on t-he olaee; was never employed by the Company.

Boudreaux and Braswell testified, and it is hot contradicted^ that the defendant, on December 27th, 1S18, sold the junk to Wilkom with 30 days to remove it; that Wilkom on same day dold to Glazer, in the sciao iron business, who removed 4?.,900 pounds or 21 tons and a half according to railroad weight tickets, and abandoned the balance on the plantation. Leían testified that he told Baker that the junk had been removed.

Upon reoeint of this information Baker testified as to what be did , as follows:

Q. And so that person told you that some of the iron had been removed?
A. He said, all had been removed.
Q. Of your own knowledge you don't know whether any of it had been removed?
A. Yes, I went and looked for myself.
Q. You don't know then how much of the scrap iron that you saw when you uurehased it that is still on the land; to you?
A. I saw nothing but a smoke stack. Some pieces lying around. I didn't nay any attention. If there ms any thing laying around it is not valuable.
Q. Very poor?
A. Yes, sir.

This evidence establishes beyond question, that according to actual weights, and not by guess-work, the junk removed by Glazer contained only 21 tons and a half tons.and not 65 to f 75 tons, a.nd that the balance remaining jes. "not valuable" and •Vary poor", so much so, that Glazer abandoned it, and that it is still there. There is no suggestion and no evidence that between the time Baker says he bought of Richmond, on Seotember 18yto the time Glazer/on December 27th ámaásd^any one had removed a oar-ticle of that junk.

After having multiplied the quantity of junk it was natural for the plaintiff to inflate its value to $17/5. The first sale by the defendant to Goldstein was for $200; the second sale by Goldstein to Richmond was for $195, and that consisted <Sf the 18 tons removed by Richmond and of the quantity remaining; the third sale from Richmond to Baker, assuming that it was a sale, was for $350; the fourth sale by the defendant to filkom was for $165, and the fifth sale by Y/ilkom to Glazer was for $225, or about $10 a tort: and lielan offered $85 for it.

In the face of this testimony it is hardly worth noticing the'testimony of nlatntiff'3 witness, in the junk and bottle business, that he had ourchased this junk from Baker in February 1918 to be delivered f. o.b. cars in Aoril for $24 a ton. He had never seen the junk and according to his own testimony, the value of scrap iron deoends uoon its kind. It is also remarkable that while plaintiff alleges that he ourchased this junk in Seotember, he nevSr exercised any act of ownership, and never oretended to have found a buyer for it, until he was informed that the defendant had sold it.

The plaintiff never notified the defendant that he had purchased the junk; it was only after he had been told that it had been removed that he called on the defendant. He says:

Q. "What did you do when you found that some of the iron had been removed?
A. I went to the Belle Chasse office and asked then about it.
Q. 'Sho did you see?
A. That gentelman right here, Hr. Braswell.
Q. What did he tell you?
A. They have to sell that olace and have to have room there.
lielan testifies!
"I am the man that brought Baker to the office.
Q. Who did you introduce him to?
A. Kr.Braswell. 1 told him there is the gentleman.
Q. What did Ur. Baker say to Hr.Braswell?
A. He sayo, ‘Shy Hr. Braswell, why you sell my iron? He says., your iron? Baker says: Yes'. Braswell 3ays: I don't know anything about it. Baker says: I am going to sue you.
Q. That was the whole conversation that took dace between Baker and Braswell?.
A. Yes.

It could not have b'en the duty of defendant under any circumstances to have called upon Baker, or to have notified him to remove the ,iunk or they would sell it, because Baker never informed them that he had acquired the yank on l they did not know it. Bven if they hnd known it, Baker had no claco of business, and they did not know where to find him. As far as they knew, Richmond was the owner of the junk, and they knew that he had removed a car load of it. They knew that lie r.ad 60 days to remove whet he wanted, and What be did not remove within that time, they had reason to believe he had abandoned as not -worth talán-: away. They sold to Richmond on June 28th, 1917; they waited until December ’7th, 1917, a eeriod of seven months before they sold to Viilkon; mleuer '.ertly of any time limit they could mt have been exneoted to -. — .it ? :-i; and considering the time-limit, they were more than indulgent. They had no other remedy than to sell to sane one else, and thus have the junk removed.

But ’.7e are not convinced that the defendants nade it clear to Richmond or to Baker that if they failed to remove the junk that they would not only forfeit their right to the junk, but also' to the orice which they had paid. That the defendants liad a ririrt to rescind the contract if it -was not executed -within the time specified, is clear to us. But it does not follow that they would^a have the right to retain the junk and the :rice too. Vie decided \ on October 2jth last in a case against Pailet that it was universal law that where a vendor rescinded a sale if --as his duty to .reimburse the consideration he had received. It is also the duty,¶ XjTÍJtT3*7-of the ven.ee to account for phe revenues of the thing sold^ In' ' the present case the defendants were paid $200 by Goldstein. ^ But Richmond, his transferee, sold eighteen tons at $19 a ton, \ less $1 a ton for preparing it, leavir: hi:.: nt 0324, or $124 more Than he had paid; therefore the defendants owe him nothin-.;, and nothing to hi3 transferee Baker.

C. C., 1501 (1895):

eernent3 legally entered into have the effect of laws on those who have formed them". C.C., 1945 : 24 A., 21,235.
"Whenever the vendee refuses to comply with the sti-^ ■oulation to be performed by him the vendor is obliged t-wait no longer, but my at once demand a dissolution of the contract". 14 A, 341. ^.
"Vhen movables have been sold with an express reso-lutory clause, it is not necessary for the vendor to make a summons upon the purchaser; the resolution takes place ioso facto at the expiration' of the delay agreed uoon". 43 Dalloz Inr. Gen. Vente p 306, 1269; 3 Troo Vente 667; 1 Duvergier p 562 &461; 24 Lifurent 377, 397.

The assignee of a vendee can only acc-uire such rights as he had and takes the property cm_onc_rei 28 A., 598 ; 23 A., 757.

"The debtor (vendee) could only cede the rights he had, and in the condition they were at the time, What was conditional and defeasible.in his hands, did not become absolute and indefeasible in the hands 0? his creditors". 8 La., 83.

Stevenson vs Brown, 32 A., 461, waa a suit against a ven-dee and his vendee for the resolution of a sale for non payment of or ice. The defense of the second vendee was -'ant of recordation of the vendor's privilege as notice to third party.

The Court said on p 463:

"The fact that the vendor has lost, or not preserved, his vnndoris lien, or mortgage, presents no sort of obstacle to the exercise of, this right of resolution.When such an action is brought by the vendor, he does not «se to annul the contract made with his vendee, but to enfiorce it. The case does not differ'in principle from that where any other event is made a condition of resolution.. Thus , if I sell you ray house for $10,000 and stipulate in the act that if a certain ship returns from the Indies the property shall return to me, and the sale be without effect, a suit by me alleging the return of the ship and the consequent avoidance of the contract, will be a suit to enforce one of the stipulations of the contract. Where-ever a right or title is by contract express or implied, made to depend upon a condition, thfit right or title is defeasible. Its holder can confer no greater right then he has himself, and, consequently, all alienations and encumbrances grafted by him vanish when the conditions happens. The vendors action is one in revendication cf the thing. One purchasing property must look to his titles. For the present case that title informed Wade that his vendor Brown had agreed that in the event of failure to pay the notes given for the price, the propasty was to revert to Stevenson. It informed him that Brown's title was defeasible, and dependent for its continuance upon the happening of a condition. One who acquires a title with such stipulations in it, takes it subject thereto". See also 31 A., 627 (634, 635); 12 A., 699 (702); 43 Dalloz Vente § 1365.

Where it appears that the vendee is indebted to the vendor for rents and revenues to an amount greaten than the price paid by him for the property, no tender of the price on the part of the vendor is required before the institution of the suit". 14 A., 598 (599); 43 A., 534; 114 La., 62 (69); 119 La., 795 (360).

The judgment of the lower Court is therefore reversed and set aside, and it is now ordered that there be judgment in favor of the defendants rejecting nlaintiff's demand at his cost.

November 8th, 1920.


text:
    Charles F. Claiborne, Judge.
    EDMUND O. BARNES vs REV. FRANCOIS ROUGE
    No. 7837
    October 18, 1920.
   EDMUND O. BARNES vs. REV. FRANCOIS ROUGE.

COURT OF APPEAL

No. 7837.

Appeal from Civil District Court, Hon. Geo. H. Theard, Judge.

CHARLES F. CLAIBORNE, JUDGE.

On December 8th, 1S15, plaintiffythrough Lyle Saxon, ■Attorney, filed suit against the defendant for $7,000 and ob-■’flined judgment against him on February 1916. He issued execution, and seized certain notes owned by the defendant.

On Hatch 3d, 1916, they were advertised for sale, and on Hatch 14th, 1916, they were adjudicated to the plaintiff E. 0. Barnes. In his return, the Sheriff states that Barnes, as plaintiff, retained the amount in hia hands on account of his claim and judgment, "charges as detailed on the reverse hereof still due by plaintiff herein". These charges amounted to $155.90.

In November ISIS, a second execution issued, core nroperty was seized and sold on February 7f,h, 1917. The costs of this second execution amounted to $38.07. They seen to remain unpaid also.

On November 24th, 1919, more than three years and six months after the costs of the first sale became due and exigi-ble, but less than that time after the costs of the second execution became exigible, the Sheriff, Louis Knop, took a rule against the plaintiff and against A. H. Johness for judgment against them for the above sum of $197,97.

They pleaded the Proscription of three years.

For answer they averred:

lo that they employed Lyle Saxon, an attorney at law to represent them in their suit against the defendsxt Rouge; that Saxon had ar. open account with the Sheriff, and that the Sheriff had elected to hold said Saxon as the oerson liable for these costs, and that the costs were charged to the onen account of Saxon; that the Sheriff made recocted demands on Saxon to pay the same, and that it was not until nine months after Saxon had moved alvay from this City and twenty-two months after the bills were incurred that the Sheriff nade a demand on Johness for payment of the sainé;

2o that the agreement between Johness and Saxon was that Johness was to pay Saxpn $700 for his services and all costs of court, and that Saxon made an assignment of his claim of $700 to A. S. White which defar-dart Johness paid to White before any demand was made uoon him by the Sheriff;

3o that they have paid Saxon al] they owed him; that on ¡.'arch 22d, 1916, they paid him $212.68; that he owes defendant Johness $100 for money loaned.

There was judgment dismissing the rule, for reasons orally assigned. Upon the argument of the case, it did not .appear what we the res sor.s^.The Sheriff appealed.

Prescription.

Article 3538 (3503) of the Civil Code reads as follows:

"The following actions are prescribed by three years: xxx That of x x Sheriff x x for their fees and emoluments".

Act 136 of 1830 p 187 (195) provides for Sheriff’s flees. Section 24 p 196, says:

"That the fees of the Sheriff shall be advance^or paid by the party requiring the service to be performed, and such party shall be entitled to recover the same from the other party on the final termination of the cause, if costs should he decreed in his favor &c Sec. 26:
"That all fees proper of the Sheriff shall be due and collectible every six months from the institution of the suit".

As regards Barnes the plea of prescription seems to be well made a3 far as the bill of $159.90 is cdncerned. It was incurred at the latest on Krach 14th, 1916; it became collectible "six months from the institution of the suit”. Suit was filed December 8th, 1915, therefore the hill became collectible on June 8th, 1915; the rule for costs was filed November 24th, 1919, more than three years after June 8th, 1916; the costs were therefore prescribed as against Barnes. But the second hill of $38u07 was incurred only on February -7th, 191^ and is therefore not prescribed even as agiinst Barnes,

But the prescription of three years applicable to Barnes, the plaintiff in the case and the party primarily liable under the law, does not shield Johness.

Johness assumed the payment of those costs, and as to him the prescription of ten years, and not three years applies.

In a letter dated February 9th, 1918, Johness writes to W. 0. Hart, attorney for the Sheriff:

"Acknowledging your letter of the 8th, I ant-willing to admit the liability for Hr. 3. 0. Barnes, if there be any on my part".

This was an assumption of any liability of Barnes to the Sheriff. The fact Of this assumption's corroborated by the circumstance^ that Johness had an interest in the Barnes suit, and that he conducted all the correspondence between himself and W .0. Fart, attorney for the Sheriff, and Sol Weiss, attorney for Saxon, concerning the collection of this bill of costs.

In Ludeling vs Felton, 29 A,, 719, it was decided that as against the widow who had accepted the community, and thus assumed payment of its debts, the orescription of claims against her deceased husband was ten years. See also 7 A., 553.

In Scionneaux vs Waguespack, 32 A, , 288, it v/as held that the prescription of promissory notes was ten years, as a personal obligation, as against a person who had assumed their payment.

The same ruling was made in Levy vs. Desposito, 133 La., 126.

In the case of Nienaber vs Paine, 9 Ct. App., 64, the Court, said:

"’.There a purchaser, not a party to a mortgage note, assumes its payment as cart of the purchase price, such assumption is a stinulation pour autrui, which creates a personal obligation to pay the price of sole, and which is subject to the prescription of ten years".

Herits.

lo The novel proposition is advanced hy the defendants that by giving credit to tyle Saxon, the attorney for Barnes, the Sheriff discharged Barnes from liability to him and could look only to Saxon for payment of his fees. There Ls authoriiy . and no precedent for such contention. The testimony of^tfee •Sheriff is ^fnat there is no case on record in which an attorney y/rs considered or held liable for costs incurred by him as attorney. He states the relations of the attorney towards th^Sljeri f f, and such is our experience after long years of practic'

Q. You looked to Mr. Saxon to get the money?
A. No; we looked to the plaintiff for the money. It is just that we take the standing of the lawyers as to whether we should give credit to him for his client, to see that he would see that we get paid. We don’t look to the lawya: We never made a lawyer pay a bill yet".

The plaintiff in this case was liable to the Sheriff for the costs incurred by him; in order to hold Saxon liable it was necessary for him to have a written assumption from Saxon, which he does not pretend he ever had.

llo It is next contended that the agreement between Johness and Saxon was that Johness was to pay Saxon $700 for his services ar.d all costs of court, and that Saxon made an assignment of his claim of $700 to A. S. White which Johness paid to White before any demand was made upon him by the Sheriff.

The only evidence of this agreement is the testimony of Johness himself. He says:

"It is my recollection that Hr. Saxon was to be paid $700.00, and assume all costs in that litigation".

This testimony is weak and lacks certainty and conviction.

Besides, it is ameijdable to two legal objections; lo being a "contract for the payment of money x x above $500" it "must be proved at least by one credible witness, and other corroborating circumstances", C.C. 2277 (2257)

and

2o being a "promise to pay the debt of a third person"

parole evidence cannot be received to prove it. ''lore the Sheriff to atteir.pt to hold Saxon on the evidence of the ara-eement a3 sfet forth by Johness, he could not recover. But even if we actait the existence of the agree!:,ent set uo by Johness, how eould that agreement affect the Sheriff who was r.ot a party to it, and who knew nothing of it? The Sheriff alono could release Barnes or Johness.

Kor doe3 it make any difference that at the time Johness paid White, that the Sheriff had made no demand uoor, him . Of course, if Saxon had not assumed to pay the cost3, then Johness was liable for them at all times; if Saxon had assumed to pay the costs, it was Johness' duty to have er.nuired if he had paid them, before oaying ’.Thite, because he cannot he heard to say that he did not know that costs hsd been incurred in the Barnes suit.

lllo The third defense is that he has oaid Saxor. all he owes him, and that Saxon is indebted to him for money loaned. It is immaterial how much money defendant paid Saxon or loaned hie; if Saxon has not paid the Sheriff, Johness is still liable; the Sheriff certainly car.r.ot be made to suffer for a failure of Saxon to perform his suty towards Johness.

It is therefore ordered, adjudged, and decreed that the judgment herein rendered be reversed and avoided; and it is now ordered that the rule herein taken by the Sheriff on November 24th, 1919 be made absoluto and accordingly that Edmund 0. Barnes be condemned to pay Louis Knop the sum of $38.07 ar.d all the costs of this rule;

Jt is further ordered that Allen H. Johness be condemned to pay Louis Knop the sun of One Hundred and ninety-sever. 97/100 Dollars and all the costs of th.is rule.

October 18th, 1920.


author: By his Honor John St.Paul.

text:
    NO. 7845.
    ALBERT LEDUFF VS A. S. DEMORUELLE, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   Opinion

By his Honor John St.Paul.

The appellee moves to dismiss this appeal for alleged Niefeot in the oitation, to wit, in summoning him to answer an appeal from the Civil District Court for the Parish of Orleans before the "Court of Appeal", instead of before the Court of Appeal for the Parish of Orleans", as the court is technically designated in the Constitution fArt 181)

In support of the motion appellee relies on Gagneaux vs Desonler, 109 La 462. There the court had once already, because of a defect in the oitation of appeal, reminded the case for a new' oitation. This time it dismissed the appeal as altogether because the new oitation was again^dofactive as the first; and the court added; "But this is not all. The oitation of appeal does not conform to the requirements of the law. It does not name the court into which the appellee is cited. It should have done this. Code of Practice, Arts 583, 179 Par 3."

But in New Iberia Telephone Ex. vs Cumberland Telephone Co. 51 An 1023, the court (although animadverting "to the looseness thereof) maintained an appeal made returnable merely to "the proper court," because from the other documents it was clear that the court intended was the Supreme Court.

This was in accord with the action of their predecessors in Friend vs Graham, 10 La 440, where an appeal was maintained though not made returnable to the Supreme Court or any other court, hut merely "according to law," since it was impossible to mistake the court which was intended, "as an appeal could be made to no other."

Anfl along the same lines, the court has also held (in State vs Cucullu, 110 La 1087) that a statute was valid and binding in this state, if passed in fact by the "General Assembly” thereof, even though the enacting clause omitted the words "of the State of Xouisiana" as required by Art 131 Const, of 1898; because it was impossible to conclude that the words "General Assembly" in official documents of the State of Xouisiana could mean anything else than the General Assembly of the State of Xouisiana/ in other words THE General Assembly having territorial jurisdiction. And finding that the statute complied with the "substance" of the Constitutional requirement^ the court refused to sacrifice substance to "mere form."

It is clear therefore that in the matter of appeals from the District Courts within the territorial jurisdiction of this court, THE Court of Appeal means this court and no other; since this court is the only Court of Appeal sitting within those territorial limits and no appeal could be taken from such district courts to any other Court of Appeal.

The motion to dismiss is not well founded.


author: By his Honor John St. Paul.

text:
    NO. 7845.
    ALBERT LEDUFF VS NATIONAL SURETY CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opimos.

By his Honor John St. Paul.

This suit grows out of a. buildinp contract, plaintiff is a journeyman under A. S. Demoruelle, who in turn was a subcontractor under Hood & Co, the main contractors; and the surety on the main

Demoruelle failed to pay DeDuff, and the only question presented is whether under Act IS4 of 1906, a laborer having a claim against a subcontractor has a recourse upon the bond furnished by the main contractor.

Act 1S4 of 1906 provides that an owner,about to build, "shall require of the undertaker, contractor, master mechanic or engineer, a bpnd with good and solvent surety, x x x x the condition of which bond shall be the true and faithful performance of the contract, and the payment of all subcontractors, workmen, laborers,### mechanics and furnishers of materials b£ the undertaker, contractor, master mechanic or engineer.'

The act then provides a remedy upon said bond in favor of "livery person having a claim against the undertaker, contractor master mechanic or engineer x x x."

and it further declares that its purpose is "to require owners to secure bond with solvent surety from the undertaker,

contractor, master mechanic or engineer, for the protection of all persons interested in the contract as their interests may appear, which said surety is to stand in the nlace and stead of a defaulting undertaker, contractor, master mechanic or engineer.”

Prom the foregoing it is clear that the bond to he required of the undertaker, contractor Ac, is conditioned that he, shall apy his subcontractors, laborers &c, and "every person having a claim agai nst him", and not those having claims against subcontractors and others; that the surety is to stand in the place of the defaulting contractor himself, and not of defaulting subcontractors and others*

If the lav/ had meant otherwise it would have said so, as it did in act 262 of 1916, for instance by inserting the word "subcontractor", as in the clause beginning "Pvery person having a claim against the undertaker, etc".

In Kette Ingham vs Eureka Homestead, 140 La 176, the Supreme Court, interpreting Act 221 of 1914 fv;hich is in the same terms as that of 1906) held that statute ivas not to be extended so as to include claims against subcontractors, because such claims were not mentioned in the act; and the act being in derogation of common rights, could not be extended beyond its terns.

It is true that in several cases prior to the last named, such claims were allowed; but the point was not made, and moreover the last case must govern.

?he judgment, appealed from was in favor of defendant, and is therefore correct.

Judgment Affirmed.