author: By his Honor John St. Paul.

text:
    NO. 7887.
    SUCCESSION OF JOSEPHINE PORTER.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   opimos.

By his Honor John St. Paul.

The issue here presented is the extent to which the prooeeds of life Insurance policies are exempt from liability for debt in this state.

The deceased held two policies upon her own life, payable to her estate; and she was the beneficiary under two other policies upon the life of another person, who died a few days before her.

The proceeds of all four policies were collected by her executor after her death constituting the only assets in his hands; and oertain creditors claim the right to participate in the distribution thereof in preference to the universal legatee.

I.

Act 189 of 1914 and Act 88 of 1916 exempt the proceeds of all life insurance policies from all liability for any debt not secured by pledge or assignment of the policy.

And although ’’life insurance made payable to the executors, administrators or assigns of the assured, forms part of his estate at his death," nevertheless "the exemption of the proceeds or avails of all life insurance from liability for any debt (except a debt secured by pledge or assignment of the policy) by act 189 of 1914, is not merely a personal exemption in favor of the assured, but inures to the benefit of his heirs at law, and exempts the proceeds or avails of life insurance made payable to the executors or assigns of the assured from liability for his debts or the debts of his succession at his death."

Succession of Le Blanc, 142 La 27.

The several policies in that case were on the life of the deceased and payable "to his wife, if living; if not, then to his executors, administrators or assigns", subject to the right of the assured to change the beneficiary After the death of his wife the assured changes^the beneficiary as to some of the policies and made them payable directly to "his estate"; others he left unchanged. But the exemption was applied equally to all the policies.

The doctrine of this case was approved in Succession of Clement, 146 La 385.

II.

So much for the policies upon the life of the deceased herself and nade payable to her estate, .is to the other policies, upon the life of a third person with herself as beneficiary, it is clear that bar heir, or universal legatee, acquired exsetly the same rights therein as she herself had.

Ir.t in that respect the statute seems quite clear. The proceeds of a policy of life insurance payable otherwise than to the estate of the assured, have never formed part of that estate and hence have never been held liable for his debts. It follows therefore that no statute was necessary to exempt the proceeds of such policies from liability for the debts of the succession. Accordingly as to such policies the statute must have meant to exempt them .from liability for the debts of the beneficiary, as being the only debts for which they ever were liable.

•The proceeds of a life insurance policy are therefore exempt from liability for the debts of the beneficiary, at least whilst they are kept apart and distinguishable from the rest of his property; and of course the heir of the beneficiary may set up that exemption as he himself might have done.

III.

As to the proposition that because the executor proposes to pay some of the debts of the deceased out of these life insurance funds, and the universal legatee has not objected, therefore they are estopped from, denying that the fund is liable generally for all the debts of the deceased; it is without merit. See, Succession of Fontana, No. 7404 of our docket; Succ of Mulledy, 47 An 1580. If the fund belonged to the heir and not to the estate, then the heir may do with it as he pleases, and it lies not in the mouth of any creditor of the estate to complain.

January 10th, 1921.

The judgment appealed from appears correct, and should he affirmed.

Judgment Affirmed.

New Orleans la,


source: Caselaw Access Project

author: By hi3 Honor John St. Paul;

license: Public Domain

text:
    NO. 7888.
    MAURICE C. WOGAN VS EDWARD GRAU.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

By hi3 Honor John St. Paul;

This suit originated 4a a petitory action. But as the defendant disclaims title and has now surrendered possession, the only remaining issue is whether plaintiff is entitled to recover for the occupancy in the meanwhile.

The defense is that the defendant occupied the premises under a lease from plaintiff's agent and that, the rent was paid accordingly to the terms thereof; that is to say in notes payable to the agent.

As it is an undisputed fact that defendant did lease the premises from an alleged agent and did pay the rent according to the terms of the lease, the only question is, whether the alleged agent bad authority to lease, and whether the forms of the lease were within the apparent scope of the agent's authority.

I.

The authority of the agent to find a tenant for the premises is simply not even denied by plaintiff when testifying in his own behalf; indeed he complains only that the agent had Tess^d the property in his (the agent's) own name, and had raede the rent payable to himself fthe agent), afterwards assigning tho same to a third person to whom defendant paid it; whereby plaintiff received nothing for the occupancy of the premisos.

And as it is also an undisputed fact that plaintiff protested ns soon as he learned that the rent had been made payable to the agent himself, (who had assigned it se aforesaid) there is no basis on which to claim a ratification quoad that feature.

II.

After careful consideration we have reached the conclusion that it is not within the apparent scope of his authority for an agent, employed to lease real estate, to mahe the rent payable to anyone but his principal; his authority extending only to the finding of the tenant, and not to the collection of the rent, unless such authority be expressly given (See 2 Corpus Juris p. 648) And above all it extends not to the collection in advance of the rent for the whole term of a long lease, or (what amounts to the same thing) to the talcing of negotiable notos, or notes payable to himself. If such were the ease, the owner of real estate having once put his property in the hands of an agent with authority simply to find a tenant, would in effect be parting with all the profit to be derived from, and hence with the whole useful dominion ovor, the property. Ror if the agent has implied authority to collect one year’s rent in advance, he has liice authority to collect in advance for ten or even thirty years rent

Hor pan such agent extena the apope of his authority by failing to disclose his principal or by noting in his own name. Suoh is the rule even as to personal property (Curl vs Bond, 52 La An 1062; Murphy vs Barnard, 167 Mass 72; 44 Am. State Rep 541) How much more then must it be the rule as to real estate where the matter of ownership is ons of reeora and qvery one is bound to take notice.

III.

It is said that '(die agent in this ease has certain equities in the leased premises whioh- entitled him to lease it for his own account; but we do not find it so. It is true that plaintiff had promised him one half oí the profits, if any, that might be derived from a sale; but orae half the possible prifits from one source is quite a different thing from the whole of the actual profits due from another source. Ihe agent also claims at one time that he had an equity of same $1500 in the property; but this is contradicted by his own correspondence whioh shows that he expected at most a mere trifle out of the sale of the property, and this too under the erroneous belief that plaintiff hod ou Id much leas for the property than it had actually cost Mm.

January 10th, 1921.

I/.

Of course re are not concerned whether (as between the defendant, the agont, and the assignee of the ageat) defendant was hound on the notes which uR <?nve. ;'.i 1 ti'ai, We hare decide is that defendant owns plaintiff f'-r ■'-he occupancy of the premiaos from July !.th 1913 to September 30th 1919, at the rato of idf. per month

The jtidgraont appealed f -orn i:: tUorobore reversed and it is now ordered that plaintiff, Raurioe C. .Vogan, have judgment against defendant, JOdward Grau, for the full sum of Six hundred and Sixty-seven & Co dollars (.$667.50) with legal interest from September 30th 1919 until paid, and costs of hoth courts.

Hew Orleans on,

No-7888

WOGAN VS GRAU

I concur in the decree heroin-I agree with the organ of the Court that Harrison was authorized to lease the premises.But I be] that the rents of the property belonged to its owner^V/ogan^and not to Harrison.There is no proof that Harrison was authorized by Y/ogan expressly or impliedly,to collect the rents,nor to make the rent notes payable to himself * 2 C.J.648-42 N.Y.S879 84 N.Y.S 497-25 b.W.595- - . - / 2.3 á> Z. /-3/— / 3 2. —.0 3. If we conclude however, that Harrison was clothed with apparent authority to do so,Gran would have been protected as long as ho honestly bolioved it and was not imformred to the contrary. But the instant that he was notified that V.'ogar. denied the authority of Harrison to have made the rent noten payable to himself,or tc collect then or dispose of them arc! claimed the rent as his property,Gran ceased to be protected by the presumption of authority in Karri sen,a^d thenceforth paid the holder of the noten at his peril.As the not-a were i.oc negotiable ard as Harriccn was rot the own^r of them,he could confer no title to the Park, and Gran mu a I p?y tv-c owner of the notes the plaintiff Tin this case.


author: CHARL3S F. CLAI30RH3, JUDG3.

text:
    Charlea F.Claiborne, Judge.
    BOSTON INSURANCE CO. VS HOWARD N. MOODY, Appellant.
    No. 7891.
    December 20th, 1920.
   BOSTON INSURANCE CO. VS HOWARD F. MOODY, Appellant.

No.7891.

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

CHARL3S F. CLAI30RH3, JUDG3.

This is a damage suit resulting from the oollision of two automobiles.

The plaintiff avers that on Larch 6th, 1S17 Fred S.Weiss —■-and ilrs. Friend, his sister, were owners of a seven na3ser.ger Cadillac automobile of the cost price of 82250 in first class condition ar.d as good as new; that the said Weiss and his sister had insured their auto with nlair.tiff comonny; that on s-id date, said auto was run into by an auto belonging to the defendant, E. E. Foody,. end driven by him, and was da.age’’ to an amount of $1490.70that oetitior.er was obii yr.ed to naj^rr.’. did nay^ said amount to 'Weiss and to bis sister, an'1 '.vas by them subro.grted to all their rights against the said moody. That the collision happened in the manner following: ",'eiss1 auto was driven by a careful chauffeur between 9 and 10 o'clock in the morning along the down town side of Louisiana Avenue, running slowly from the River towards the lake, when, on crossing the river side of St. Charles Avenue, it was run into by the auto of defendant driven by hiwself; that defendant was driving his auto down St.Charles Avenue towards Canal Street at an. excessive rate of sneed; R at plaintiff's auto was hurled against an electric li d;t cole on the neutral grouna at the corner of Louisiana and St. Charles A Avenues; that the collision was due solely to the fault*'of the defendant^while V.'eiss’ chauffeur was not guilty of any negligence^ and did every thing in his power to avert R.e accident.

Defendant admitted the collision but denied that it occurred through any fault of his an', alleged or. the contrary that it was due entirely to the negligence of 'leiss' chauffeur in that h-e attempted to for3 his way across the street in front of defendant's auto at a reckless rate of soeed; that he did. all in his power to avoid a collision by aoolying the brakes on his auto; he admits that '.Teiss' auto struck an electric light pole on the neuttal ground as alleged; but that this was the result of the excessive rate of speed at which the ’7eiss car was travelling, and he denies that the car '.vas hurled against the pole as alleged; he further alleges that his own auto was damaged to the extent of $395 for the recovery of which he reserves his rights against Weiss.

There was judgment for plaintiff, and defendant has appealed.

There were only five witnesses examined regarding the accident. They were: for the plaintiff, Charles Thornton, a bystander, and Arthur T. Rudkin, Weiss' chauffeur; for the defendant, H. N. Moody, jand Smith and Jongs, both his emoloyees.

Thornton testifies: He lives in Lake Charles; is a chauffeur since 1902; saw the accident; was standing on the down town river corner of Louisiana Avenue and St. Charles right up against the fence; be first saw Weiss1 car going out Louisiana Avenue; it had a little silk flag stacked-up in front worn to a frazzle; then he saw ,him coming back; just then he saw defendant's car coming, along in front of Dr. Newman's house, on the river side corner of St. Charles and Delachaise;

"he was coming in at an awful speed and his front wheels were just shaking"

and he was blowing his horn; he heard the noise of the machine __-j--- ^^4^* before he heard the horns; when Weiss' rolled up to the corner and almost came to a stop before he attempted to cross; he started to cross, and

"this fellow looked like he hugged the car track, and he crushed into and drived him into the cost, a telegraph post, and throwed the chauffeur out; x x x "

he was right over there after they got them out and picked the men up, and l’.oody said he thought he was nutting the brake on, and be was accelerating; the Moody car did not slow un before the accident; it must have been going at the rate of 35 to 40 miles an hour; the '.Veiss car crossed St. Charles at a rate of 8 or 10 miles an hour; the accident occurred on the wood side of St. Charles Avenue; be drove the car right into the telephone post which kept it from tundir: over; the i'oody car struck the tail end of the ’Teiss car; the two hind wheels on the left hand side; there was room behind the .7eiss car, for the Koody car to pass, room for two cars; there ’.vas nothing to prevent the I'oody car from seeing the V/eiss car; he was standing on the sidewalk facing the wood, waiting for “in. 3ddy Greever"; facing uptown wood corner; he heard the Koody car before he heard the horns; the Koody car began to sound its horn when it got near Solari's at the pressing shop; the ¡..oody oar was hugging the neutral gound; Weiss' oar was a left hand/^rive; the chauffeur was on the side on which Lioody was coning; V/eiss' chauffeur is careful; he has known him for five years; he

"never knew him to bend a fender in his life".

V/eiss chauffeur is white; and thirty-five years old; witness is colored; there is room on St. Charles Avenue for three cars abreast - probably four; under City Ordinances cars running on streets north and south have the right of way over cars running east and west; a Cadillac car is a heavy car; defendant's car, a Dodge, is a light car; V/eiss' chauffeur was knocked out on the wood side of the post; the accident happened at about nine o'clock in the morning; there was not much traffic; there was nothing to prevent the Weiss chauffeur from seeing the lioody high rate of speed; when the lioody car reached Solari, it crossed to the river side of the street and then came down across the Louisiana Avenue tracks on a 45 degree angle towards the neutral ground; that is how he hit the V/eiss car; there was no reason to hit the 7/eiss car; it was iust by reckless driving.

Arthur T. Rudkin testifies that he was V/eiss' chauffeur; had been for ten years; before that had been five years chauffeur for iirs. Isidore Eewraan; never had any accident before; his car .vas in first class condition, practically a nev/ car; when be approached St. Charles Avenue he looked up and saw nothing; when fce got to the centre of the street he noticed Koody's car coming down very fast; he then changed from second to third speed, that is, to a higher speed to avoid being struck by the car; but his accelerator did not take; the front wheel of his car was already on the track to make the turn uptown when he was struck on his rear wheels about three feet from the oost; he was ía,.£.¡ed aaninst the oost; the oost was broken in half; all that held it the wires; the lights of the 1-oody ¡.'achine were starred on his oar, and also the Dodge emblem; the blow knocked hiu* comoletely out of the car; the whole rear car wa3 nraoti-cally knocked out, the rear wheel and "transmission"; when he got to the corner of St. Charles Avenue, he saw the Moody car almost behind Solari's wagons coming at a terrific rate of speed; as re accelerated his speed, instead of the caí speeding up, it leg red; it had a defect; had the oar sreeded up, Moody's car would not have caught him; he would have been out 9f his way.

H. N. Moody, the defendant, says: He is a contracting engineer; he was driving his car himself on the morning of the accident at a speed of 18 and 20 miles an hour; on reaching Solari's he encountered ¡mny wagons backed up against the curb; he looked over the top of the wagons and not seeing any car, he slowed down and accroached Louisiana Avenue and when he reached about the middle of the lower rails of the car tracks h.e saw z¿ the 7/eiss car coming from behind two covered wagons trailing each other coming from the River going towards the woods;

"realizing that the street was wet I attempted to put my brakes on, but realizing it was futile I immediately apnlied my accelerator to try and get by the Weiss oar as there did not seem to be much chance of him stopp ing at the rate of speed at which he was traveling; he looked to me to be travelling in about the sane speed as I was"; '

he was then twenty-seven feet from the place where the accident happened; the 'Weiss oar was also at the same distance; he took the measurement of all those distances within a, half an hour of the accident; the wagons were going in the sane direction along Louisiana Avenue as the Weiss car; they were upon his left next to the neutral ground, and he passed them on the lower side; Louisiana Avenue had been scrinkled; we both accelerated and collided about the saa.;e time; in his car with him were Mr. Copp, Mr. Smith, and Mr.Jones; they all catapulted or were shot out of their oars, Rudkin also, Ur. Jones through the top^and others out at the side, and all were injured; one was knocked senseless, and another badly hurt; he first put on the brakes,and then accelerated; the roadway of both Louisiana and St. Charles Avenues is about twenty-four feet wide; he hit the Weiss car about the middle of the road-way; he hit the Weiss car; when the two cars collided, they were going at a greater speed than twenty miles an hour because they both accelerated; when the two cars became visible to each other, the Weiss car could have turned down St. Charles Avenue if he had been going slowly; but at the rate of speed at which he was going he had nothing to do but try to get by; he could have stopoed and slowed down before coming to St. Charles Avenue.

J. C. Smith, one of the occupants of the car, says it was going at about twenty miles an hour;- he first saw the Weiss car when he was crossing the Louisiana Avenue car track about thirty-five or forty feet away; there 'were wagons on Louisiana Avenue; did not hear any horn from either automobile; the impact of the car assisted the post to break.

J. C. Jones testifies that Moody was driving at about twenty miles an hour; he works for Moody, so does Smith; Moody blew his horn before he got to the car-track; he went through the top of the car to the pavement.

Ordinance 1392 Commission Council Series adopted Aoril 15, 1914 controls the traffic in the City of New Orleans.

Section 2 (a) provides:

"A vehicle, except when passing a uehicle ahead, shall keep as near the right hand curb as possible".

Section 4 (b):

"Subject to Section 2 of this ordinance, everything being equal, all vehicles and street cars going in a northerly or southerly direction shall have the right of way over all vehicles and street cars going in an easterly or westerly direction".

Section 5 (b):

"No vehicle shall cross any street or avenue running north and south or make any turn at a sneed rate exceeding one-half its legal speed limit".

Section 14 (a);

"The terms North and South" as used in this ordinance are used to indicate directions narallel to the Mississippi River, North being in the direction of the St.Bernard Parish line and South being in the direction of Jefferson Parish line".

(b);

"The terms East and West as used in this ordinance ¿re used to indicate directions at right angles with the Mississippi River, East being in the direction towards the Mississippi River, and West being in the direction of the Lake".

Ordinance 3027 adopted January 5th, 1916 Section 1:

"That the speed of automobiles and motorcycles in the City of New Orleans in the district bounded by Howard Avenue, St.Louis Street, the River and Basin Street shall be ten miles per hour, and on other streets and roads of the City twenty miles per hour".

Our conclusions from the testimony o^uoted above and from other parts which it would be too long to reproduce are as follows:

Weiss' car was running along the lower side of Louisiana Avenue, which has a neutral ground in the centre; it was.running in the direction of the lake, or from East to West; when it got near St. Char les Avenuej it passed a^vngon having -¿SEF-tsw another wagon; instead of passing the wagons on the left, as it should have done, undertlie ordinance, it passed them on the right, thus placing the wagons between it and the neutral grounds in that position, it could r.ot see the machines coi ir.g down the avenue, nor could they see it; a result which it v/as evidently the object of the ordinance to irev-T.t. It thus hamened that Moody did not see Weiss' car, nor Bid the chauffeur in Weiss' car see Moody; they saw each other only after the Weiss oar emerged from behind the wagons on Louisiana Avenue and rolled into the middle of St.Charles Avenue; both then saw the danger of the situation; it ms too late to check up, and speed was their only salvation; VIeiss attempted to accelerate, to get out of i'ioody's way, bpt his machine was out of order, and -would not respond; lioody accelerated also, with the hope of passing ahead of Weiss; in this attempt he instinctively swerved his car to the left, and instead of getting out of the way of Weiss' who vías also forging ahe¡MlgJce, TO|s^too late and ran into him with much violenae,a«i ;¡aii..ed him against the post/But in all this,

Weiss' chauffeur was at fault. Be was guilty of two violahbns of the City Ordinances governing the running of autos, lo When he passed the two wagons going in the sane o’irection he was, he should, aceoring to the ordinance, have oassed them on their left. Had he done so, he would have been in a better position to see lloody, and lloody would certainly have seen him ea.rlier, and the accident would not have haooened. Plaintiff's witnesses do not deny the presence of these two wagons.

2o Koody going down St.Charles Averue was travelling, accord- ^ ing to City Ordinances, in a northerly direction. He had the j right of \;ay, He was only bound to use ordinary care in avoiding'' oars crossing his path from either side^ ¿is it was not expected n that any would do so ./it was l/eiss' duty, on the other hand, to stop when he reached St. Charles Avenue, or at any rate to so slacken inis nace as to have his oar under -oerfect control and to look in order to avoid a collision with a car running down St. Charles Avenue. This he did not do. He did .not even hear the oar which,according to Thornton,was blowing its horn oontinuous- / " t i ly. He says be checked up almost to a stop, and looked un the street and saw no car coming. Iiis statement does not bring conviction. If be had checked up, he would have had 1'is c;r under control; and if he had looked up^be could not have helped seeing the lloody oar v/i ich must have been very close to I ii.v, since it caught up with him before he had time to cross the street. The street was only twenty-four feet wide, and if re was going at a speed of ten i.:ile3, as Thornton says, and lloody at twenty miles, lloody, could.not. havf been more than forty-eight feet from him. On a*nr ight ¡rorwifig of the r.onth. of larch, between ten and eleven, it would have been easy to see the car coring at twice that distance, and n.erhaos four tinas. Thornton, who was standing uo against the fence, at least nine feet from the street curbing, saw and heard, it nearly three hundred feet up the streets If he did not see the car it was because he did not use proper diligence to see it. When he says he saw it, it was.too late to stop; he was in the path of the oncoming car of Moody; all he could do was to speed up; his machinery would not respond, ardhe remained in Moody's road; Moody dashed into him and damaged him; but we think that he brought his troubles upon himself for which he cannot hold the defendant liable.

It it therefore ordered that the judgment be reversed and that there be judgment in favor of defendant rejecting nlaintiff's der.mnd at his cost.

Judgment reversed.

December 20th, 1920.


author: Dlnksleplel. J.

text:
    Eli Baccarat. -vs- Pierre J. M. Soulagnet.
    No. 7895.
    Court of Appeal. Parish of Orleans.
    Dlnkelanlel. J.
   Dlnksleplel. J.

Plaintiff, holder end owner of a promissory note, signed by defendant, for the eum of $101.81, with Interest at the rate of 6$ per annum, from 11th. of February, 1919 until paid together with 10 # on the amount to be oolleot -ed ae Attorney'• fees, brought thle suit and prayed for judgment aooordlngly.

Defendant substantially admits the allegations of the petition, bpt avers, that plaintiff, a Life Insurance Solloltor, oalled upon him for the purpose of selling him life Insurance In the Pan Amerioan Life Insurance Oompany, representing to defendant that he oould sell him a $3,900.00. polloy In said oompany for a yearly premium of $101.61, and that said policy would have attach -ed to It dividend ooupons payable yearly beglnlng one year from the date of said policy ; further represented, that If defendant pay said premiums oontlnously for fifteen years and allowed the Insurance Company to retain all of said dividends for that period of time at the expiration of twenty years from the date of the polloy, the oompany would pay $ 3.000.00. In oash, and If defendant withdrew said dividends he, defendant, would have to pay the same yearly dtxAdendx premiums for five years longer, say for twenty years, but at the end of twenty years, he defendant would collect $3,000.00. In oash, and plaintiff further represented to defendant that before the expiration of said fifteen or twenty years the full amount of $3,000.00. would be paid to his wife, the benefiolary of the polloy. In oase of death.

Defendant averlng further, that being a frenchman, and not very familiar with the engllsh language, the repres -entatlons made to him by plaintiff were in the frenoh language, and defendant being satisfied to purohase Ilfs insurance under the above terms and conditions signed an application for said insurance, annexing a photograhio copy of both the application and the polioy to his answer. That, thereupon, defendant gave plaintiff the note now sued on as the first year premium on said life insurance before said polioy was delivered to him, and that he was given a receipt therefor, also annexing the receipt to his answer.

That plaintiff delivered the polioy to defendant in latter part of February or the begining of March, 1919, whioh had been issued by the Pan American Life Insurance Company, and that defendant not being familiar with the english language and relying on the representations whioh had been made to him by plaintiff took said polioy without reading it placing it among his papers.

That before the maturity of the note now sued on, defendant had occasion to tell a Life Insurance Solicitor for another company that he had a policy of insurance in the Pan American Life Insurance Company. That said Solloitor seeing the polioy and examining same then ascertained that he would have to pay said premium of $101.61. for thirty-seven years, and to allow alldivi-dends and ooupons to aooumulate with the insurance company for that period of time before he would be paid the $3.000.00., and that at the expiration of that time and under these conditions defendant would be paid.

That the polioy whioh had been delivered to him by plaintiff was not the polioy whioh plaintiff had sold to him, nor would he have purchased the polioy in question whioh had been delivered to him.

That when plaintiff called upon him, defendant, for the payment of said note, shortly after its maturity, defendant told him that he had not delivered the polioy of insurance whidh plaintiff sold him and which he had bought from plaintiff, and defendant still insisting that defendant would receive $3,000.00. in oash, at the end of twenty years under the policy which had been delivered to him, that defendant told plaintiff at that time, that he did not want said polioy because it was not what he had bought, and offered to return said policy to plaintiff upon the return of his note, but that plaintiff refused this offer.

Defendant specially pleads a release and discharge of all obligation or liability upon the note herein sued upon, because of plaintiff's failure to deliver to defendant the Insurance policy which he had sold him. Henoe defendant prays for judgment.

The polioy of the Pan American Life Insurance Company in question. Bo. 44507, was made apyable to the wife of the applicant and is marked on the outside, " Twenty payment life. Optional Premium Reductions. Hon Participating"., and containing on the inside and part of the polioy, plainly in large print, the exact conditions under which the polioy was issued and attached to it are various coupons and a table in dollars and cents showing from year to year what the beneficiary if alive would receive and what he was entitled to in case of non collection, and in every clause of the polioy in question absolute good faith of its terms and conditions are plainly set forth so that he who runs may read.

The main contention, after all, is misrepresentation. That the policy in question for whioh the note was given was not such as represented and therefore a fraud had been committed on defendant.

The able and learned Judge of the lower Court before whom this case was tried, in an able, short concise and logical opinion, after patiently listening to the evidence in this case has presented us with his written views, which we adopt, and are as follows ;-

"- This is a suit on a Hote given in payment of the premium on an insurance policy. It appears that plintiff solicited the policy of defendant, and when it was issued took the note at three months for the amount and himself paid the insurance company the premium, presumably less hie commissions as agent.
This is the suit on the note and a defence of want of consideration and a deception.
It appears that both parties are in absolute good faith. In fact, I see no reasons from the testimony of plaintiff and defendant and his wife, to doubt that they firmly believe their own statements, but at that it shows that defendant did not understand exactly what contract he entered into. In the meantime he has received the benefit of an entire years life insurance, while the contract in his possession shows that he was under an erroneous impression. It seems to me that he has not been defrauded, but was neglegent in repudiating the contract, before he received it's benefits and can not now make suoh olaim. This, added to the further fact, that I am impressed by the appearant good faith and honesty of plaintiff, convinces me that he is entitled to judgment.n

We are convinced that there is utter lack of proving ought of the misrepresentations alleged to have been made falsely by plaintiff to defendant. It is a strange coincident that both the wi£ e, the benefioiary in this oase, and the husband who gay they do not speak engllsh testified in that language, and from their testimony we are convinced that they thoroughly understood all the olauses in the policy in question delivered to them by this agent and plaintiff in this oase. That there was no deception of any kind or character, on the contrary, the polioy proves that the statements made by this agent were in every respect truthful, honorable and worthy of belief in any Court of Justice and so did the Judljfe of the lower Court decide, and so we hold.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be, and the same is hereby affirmed with costs of both Court to be paid by defendant.

•Judgment Affirmed*


text:
    Charles F. Claiborne. Judge.
    MRS. JULIA COMPAGNO Praying for a concursus.
    No. 7897
    February 7th, 1921.
   MRS. JULIA COMPAGNO Praying for a Concursue

Ko.

CHARLES E. CLAIBOHHE, JUDGE.

This case was already Before us under the Ko. 7443.

On the rehearing, we reversed and set aside the judg-nent of the District Court and our own original decree, and remanded the case to he tried and decided in accordance with the legal views expressed in our original opinion.

The case has Been tried anew in pursuance of said decree and a judgment rendered on February 20th, 1920.

As in the original decree^the claim of George H. Hain-dell was recognized for $215.00, subject to a credit of $90.00 paid to him By the contractor, Edwin L. Margal, thus reducing the amount allowed him to $125.00.

The opposition of the Carolina Portland Cement Company was dismissed - aw it had Been in the original judgment.

These two creditors have appealed.

The. contention of the surety made defendant herein, the United States Fidelity and Guarantee Company, is as follows: during the time these appellants were furnishing materials to Markel, the contractor, he had several Building contracts on hand, for which the appellants were furnishing materials; that in none of these contracts had Markel given security, except in the contract under consideration with Campagno; that Markel had made several payments^on account^during that time to these mater-ialmen, and that all those payments should have Been credited to the Compagno contract as it was the only one accompanied with a surety, and that instead of doing that, Haindell had credited the Mumfrey Job which wa.s unsecured. This argument would have Been in accordance with our opinion if the facts contended for were correct. But it appears that the contract with Compagno sab made on March 8th, 1917, and that the Security Company signed the Dond on March 12th, 1917. But the contract and the Bond were recorded in the Mortgage Office only on June 30th, 1917, while the Building was completed and accepted on May 18th, 1917. There is nothing to show that Haindell was aware, otherwise than toy ttoe recordation of the Bond, that the Compagno contract was secured; end if we could hold that legal 'knowledge of that fact ivas given him toy the recordation of the Bond, then, at that time, he had already credited the account of Kumfrey, corner of First and Magazine, which was older in date to the 'Compagno joto, Haindell could not have toeen held to credit a secured account, the existence of which he did not know. The Imputation to the detot "which has toesi the longest due" was in accordance with law, C, C« 2163,

The same rule applies to the claim of the Carolina Portland Cement Company. According to the hill filed toy it it appears that it claims the price of thirteen doors #40.75, which were furnished on May 3d. Up to that date the Company had sup.plied materials to Markel on'sundry jotos to the amount of #367.62. The total amount paid to them toy Markel, toefore and after that date, was #346.15. These payments must toe imputed to the oldest detot, leaving a toalance due .-to the Company of #21.47.

It is therefore ordered, that the judgment of the District C'ourt, in so far as the appellants herein are- concerned, toe reversed and set aside, and it is now ordered that the opposition of George H. Haindell toe maintained, and that he have judgment against the United States Fidelity and Guaranty Company for Two Hundred and fifteen dollars with five per cent per annum interest from June 7th, '1917 till paid with #2.50 costs of affidavit; and recordation, and all costs of court. 11 Ct. App., 165.

It is further ordered that the opposition of the Carolina Portland Cement Company toe maintained and that it have judgment against the United States Fidelity and Guaranty Company for Twenty-one 47/100 dollars with five per cent per annum interest from May 3d, 1917 till paid and all costs of suit.

February 7th, 1921.


author: CHARLES E CLAIBORHE, JUDGE.

text:
    Charles P. Claiborne,Judge.
    John D. Nix, Jr. vs Jos. Petrie & Co., Ltd.
    No. 7900
    February 21st, 1921.
   John D. Nix, Jr. vs Jos. Petrie & Co., Ltd.

No. 7900.

Appeal from Civil District-Court, Hon. Porter Parker, Judge.

CHARLES E CLAIBORHE, JUDGE.

Plaintiff sues to annuljí a constable's sale to defendant for want of payment of the price.

He alleged that he was the owner in possession of a property on Seventh, now Hickory, Street, Ho. 8705; that the defendants claim to he the owner's of said property by virtue of a proces-verbal of a pretended sale made by the Constable of the Eirst City Court of Hew Orleans which the defendants herein have caused to be registered in the Conveyance Office in Book 281 page 238; that said proces-verbal is in the following words:

"Be it remembered that on the 19th day of April in the year of Our Lord 1915, and of the Independence of the United States of America, 139th year, by virtue-of a writ of Eieri Eacias to me directed by the Honorable the Eirst City Court for the Parish of Orleans, on the 10th day of March 1915, in the matter of Joseph Petrie & Co. vs Alexander Madison, Ho. 67,672 of the docket of said Court, and the publications and advertisements required by law having been duly made in the following manner, viz: in the Times-Picayune in English, and in the H. 0. Bee in Erench, on the 19, 25, and 31 March, and 6, 12, 19 April 1915, I, James J. Egan, Deputy Constable of the Eirst City Court of Hew Orleans, did at the hour of 11 o'clock A. I£. repair to the main door of the Hew Court House Building on Royal Street between Conti and St. Louis Streets in the Second District of this City, and then and there, after having first announced in a loud and audible voice the teims and conditions hereinafter expressed and specified, I did expose for public sale, by auction, the following described property, which was adjudicated to the highest and last ■bidder, te-wit: Joseph Petrie & Co„, plaintiff in said suit, for the price and sum of $685.00,
"then follows the description of the property"

Terms: Cash; the purchaser to make a deposit of ten per cent at the moment of adjudication.

Thus done and closed the present proces-verbal of sale, amounting to $555.00 on which the purchaser has paid the sum of $55.50 at the moment of adjudication".

"Signed" J. J. Egan
Deputy Constable
Witnesses:
Jno. O'Leary - J. Albright Registered October 11th, 1915.
The plaintiff averred lo that
"there has been nothing registered showing an absolute transfer of the above property to Petrie & Co.",

or 2o

"that the defendants made any further payments on account of the purchase price of said property, other than the original deposit of $55.50

and he prayed for judgment ordering the cancellation of the inscription and for damages for slander of title.

The defendants denied that the plaintiff was the owner of the property but averred, on the contrary, that they were the owners of it, by virtue of the adjudication and sale described in the above proces-verbal; and that they complied with the adjudication by depositing ten percent of the adjudication or the sum of $55.50; that the plaintiff herein, John D. Hix, Jr., was present at said sale and intervened to claim the proceeds of sale; that the said John D. Hix, Jr. illegally opened the Sun-cession of Alexander liadison on September 21st, 1916 and provoked the appointment of an Administrator who

"stated under oath that said property was worth $400"; that said Succession proceedings are void for the reason that liadison was not the owner of the property, that the property was worth more than $400, and that the proceedings were in violation of law.

There was-judgment in favor of plaintiff and defendants have appealed.

The plaintiff testified that his possession of the property began on October 15th, 1915, the day on which he bought it; that he exercised all rights of ownership over it, leased it, collected the rents, paid taxes, and water bills, and made repairs; that the property had been rented four and five dollars, but was now rented for seven dollars per month since he put a new roof upon it and made repairs about a year ago; that while he paid $400 for it, he had an offer of $850.00 to $900.00 from I£r. Huber which would have been accepted had it not been for the inscription of the proces-verbal; he had a vendor's privilege on the property for some $400.00.

Mr.Huber testifies that he offered $800.00 to Ur. Hix.

It was admitted that the record in the suit of Joseph Petrie & Co. vs Alexander Madison was withdrawn by the attorney for the plaintiff on the day the present suit was filed and that it has been lost or mislaid; that the suit of Joseph Petrie & Co. was for a claim of $63.00 secured by privilege for plumbing done on the property; that the judgment was correctly rendered for the amount claimed with privilege on the property; that a Fi.Fa. issued; that the property was seized, advertised for sale and adjudicated to defendant, for $535.00 cash, all according to law, and that defendant paid the Constable ten per cent of the adjudication; that the plaintiff herein was present at the adjudication and bid on the property; that on April 19th, 1915, he filed a rule in said suit claiming the proceeds of sale by virtue of his vendor’s privilege superior to that of Petrie; and that the rule was dismissed on an exception to the citation.

The plaintiff offered in evidence the record in the Succession of Alexander Jiadison; it was admitted that the opening of the Succession and all proceedings therein leading to the sale were done at the suggestion of the plaintiff Hix. This record shows: that Alexander Hadison, colored, died May 16th, 1915 on the property involved in this suit; that his Succession was opened by the Public Administration on September 21st, 1915 under Act 153 of 1900 on the allegation that the property left by the deceased did not amount to over $500.00, and the property Ho. 8705 Hickory was appraised at $400.00. The Act 153 provides that an Administrator shall he appointed after one publication and posting on the door of the Court House and a delay of seven days; that the immovable property shall he sold after two weekly advertisements, all the costs up to and including the advertisements not to exceed $10.00. The Administrator was appointed on October 4th, 1915; on October 6th, without any statement of debts, the Administrator obtained an order of sale of the property of the Succession by the Sheriff, for cash, in order to pay debts; the property was advertised on October 7, 8, and 14th, and was adjudicated on that last daté to the plaintiff herein for $400.00, cash, which he paid to the Sheriff, who paid .the taxes and costs of sale, and the balance $355.37 to the Public Administrator.

On Hovember 19th,the Administrator filed an account. After paying costs amounting to $74.93, he proposed to pay to the plaintiff herein, as "holder of first mortgage note" all the balance amounting to $280.44; and h'e classed as ."ordinary creditors, Joseph Petrie & Co., as per statement furnished by the Constable, $154.51". This account was homologated, without opposition, on December 2d, 1915. On October 18th, the Sheriff delivered to the plaintiff an act of sale. According to the mortgage certificate, copied in this act of sale, the following inscriptions were recorded: January 6th, 1914: The one Alexander Madison granted in favor of his vendor 1. T. Kirn to secure $400 by act Deibel, M. P., dated January 3d, 1914; January 11th, 1915. The lien and privilege in favor of Joseph Petrie & Co. up to $63.00 by act T. Cotonio, H.P., dated March 4th, 1914; March 12th,1915: the writ of Fieri Facias in favor of Joseph Petrie & Co. against Alexander Madison up to $63.00 & c. And according to the Conveyance Certificate recited in the same act there Tías the following inscription:

"Proces-verbal of Constable l3t City Couri dated April 19th, 1915 to Joseph Petrie & Co. for $535.00 Bk. 281 folio 238 Registered October 11th, 1915".

It will thus be seen that this property was adjudicated to the defendant on April 19th, 1915, and a procfes-verbal o.f sale made to Mm of same date, and registered- in the Conveyance Office on October 11th, 1915. On the other hand, the adjudication in the Succession of Madison was made to the plaintiff on October 14th, 1915, three days after the registry of defendant's proces-verbal.

It is contended, however, that this proces-verbal was not an "absolute transfer of the above property to Petrie & Co." Ibis contention is not supported by law or authority. Article 690 of the Code of Practice reads as follows:

"The adjudication thus made has, of itself alone, the effect of transferring to the purchaser all the rights tad claims which the party in whose hands it was seized might have had to the thing adjudged".

C. C., 2608 (2586)

"This adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale". Article 691 prescribes that the Sheriff shall pass an act of sale to the purchaser.

Articles 692 and 695 state what the act of sale shall contain.

Article 6ts4e directs the Sheriff to sell to the purchaser all the rights of the debtor to the thing sold.

Artible 695 concludes:

"This act of sale adds nothing to the force and effect of the adjudication, but is only intended to afford the proof of it. Consequently, if the Sheriff has omitted any of the formalities above prescribed, the adjudication shall not be void on that account, if it otherwise appear that it was made by virtue of a legal authority, and with all the forms requisite for its validity".

The Proces-verbal to the defendant contains all the requirements of the above articles of the Code; and if it did not, it would still be Valid as affording the proof of an adjudication "made by virtue of a legal authority, and with all the forms requisite for its validity".

Such was thé view taken of the force and effect of a "Proces-Verbal" in the case of Strauss vs Soye, 29 A., 270.

She Court said:

"JTo evidence was offered hy the defendant, and he relies on a supposed incompleteness of the Sheriff's conveyance to plaintiff alleging that there must he a deed from the Sheriff supplemental to the Proces-Verbal. The Proces-Verbal of the Sheriff in evidence fulfills all the requirements of the Code of Practice (Articles 692-693) and is of itself a deed. It contains all the necessary recitals, and is signed hy the Sheriff and the purchaser, -táiose signatures are attasted hy two witnesses*.

In the case of Bienvenu vs Insurance Co., 33 A., 216, the Court said:

"Appellant further urges that plaintiff has failed to produce the Sheriff's deed to him. x x x We find in the record the Sheriff's return on the writ of fi. fa., showing his adjudication to plaintiff, and that is sufficient. 29 A., 270."

The delivery of an act of sale hy the Sheriff is a clerical duty; the want of it will not annuli the sale. 27 A., 281.

The second contention of plaintiff is equally untenable, viz:

"that there is nothing to show that the defendants have made any further payments on account of the purdhase price of said property, otheri^than the original deposit of$63.50, and that, inasmuch as the term» of sale were "cash", the defendants had no title until they had paid the constable the entire price of adjudication."

Such is not the law or jurisprudence.

The Code or Practice, Articles 679, 683, 706, and 718 provides, that when there exist special mortgages or provileges in favor of other persons superior to the judgment creditor, the purchaser shall retain in his hands an amount sufficient to satisfy them. The same rule applies to special concurrent mortgagee; and Article 707 of the Code of Practice makes it the duty of the pur chaser, after paying the seizing cfeditor, to apply the surplus in his hands to the payment of inferior mortgages. The jurisprudence is constant that the seizing creditor, purchasing at a Sheriff's sale is no.t bound to pay any part of theJ; price to the Sheriff. He has a right to keep the portion of (the price due to himself and he is bound to retain in his hands'^ jp^the amount belonging to special mortgage or privileged credi- r Labors. The jurisprudence is ttajaaáwnrfc that the purchaser has a yv Vtóright to pay to the Sheriff, and the Sheriff has a right to re-o¡ \fOceive, only the amount of the writ in his hands. So it is im-1 ^material in this case, whether the plaintiff's claim was super-^ f\or or not to the defendant's upon the property seized. Petrie Co.,as seizing creditors, had no part of the adjudication to SI'■^ay; and they were bound to retain in their hands, as the Sher- i ^Lff had no right to receive it, the amount accruing to special CQnortgage creditors superior, concurrent, or inferior* ^

rnv*_J.__ .. J 4 . . 41 .1 A ~41 A. T> A ~ -V, The property was adjudicated to Petrie on April’ 19th, \^Jl915; Madison died on May 16th, 1915; they could not pay to jí^jhim; and there is no evidence that the plaintiff called upon ^^.them to pay, after their unsuccessful fule.

Plaintiff, as seizing creditor with mortgage or privi-has a right to withhold the price of adjudication up to ^the amount of his claim. 34 A., 1032 (1037); 25 A., 144; 1 A., 144.

I A purchaser at Sheriff's sale to satisfy a writ has no ^Aright to pay to the Sheriff and the Sheriff has no right to re-‘, ¿ceive an amount exceeding his writ. 34 A., 663; 107 La., 313; 5 A., 313; 2 R., 214; 39 A., 735.

If the purchaser pays the Sheriff more than the amount Vof his writ he does so at his peril and the Sheriff's security ^^r/ill not be liable. 34 A., 663; 107 La., 313; 31 A., 87; 15 A., 2 R., 214; 16 La., 163.

Although the sale is made for cash, the seller must retain an amount of the price sufficient to pay special prior ^mortgages. C. P., 706; 107 La., 313; 34 A., 662; 31 A., 87; 15 A., 289; 14 A., 149; 9 A., 175; 58; 2 R., 215; 39 A., 735; 10 R., 110, 65; L R.,305; 1 N. S., 603.

"The adjudication shall he for cash. This does not preclude the purchaser from retaining the surplus of the purchase price, if any there he, to pay the mortgage second in rank". 44 A., 336, 337.

The Sheriff has no right to receive the amount accruing to an inferior mortgage creditor. 18 A., 67; C. P., 707; 15 A., 289; 5 A., 313; 16 La., 170; 3 La., 212.

The purchaser must also retain in his hands the amount of concurrent mortgages. 107 La., 311; 24 A., 381; 34 A., 663; 39 A., 1056, 1057, 735; 21 A., 499; 14 A., 149; 5 A., 313.

Prior and concurrent mortgages are governed hy the same law. 14 A., 654.

There is nothing in the record to show that Petrie & Co. were aware that the Succession of Madison had been opened, or that their property was advertised for sale, or had heen purchased by the plaintiff, or that he was in possession of it, or had repaired or improved it.

Vie have therefore come to the conclusion that the Proces-Verbal to the defendants conferred upon .them a complete title to the property adjudicated to them; that from that date the ■ property ceased to belong to Madison, and that the sale of it in his Succession was "the sale of a thing belonging to ano.ther" and therefore null. C. C., 2452 (2427).

It is therefore ordered, adjudged, and decreed, that the judgment appealed from be reversed and annulled, and that plaintiff's demand be rejected at his cost in both Courts.

Judgment reversed.

Pebruary 21st, 1921.


author: Dlnkclsplel. J

text:
    Rozel Mc. Williams- -vs- Frank R. Reith, Jr.-
    No. 7901.
    Court of Appeal, Parish of Orleans.
    Dlnkelsnlel. J.
   Dlnkclsplel. J

This suit is based on the following agreementj- * I hereby irrevockably appoint R. Mo. Williams, his heirs or successors, my agent, and authorize my agent to sell my property known as No. 3837-39 Berlin Street, with all the ground and Improvements appertaining or belonging thereto, including the gas and electrio fixtures and plumbing fixtures now attached to the building, said ground measuring 40 ft. front by a depth of 130 ft., for the price and sum of 87.000.00. or anyother amount which may hereafter be agreed upon. I give my agent sole oontroll of same for 180 days from date, and further agree not to interfere in the sale of the property during the term of this contract.

I also bind myBelf to refer all applicants for the purchase of said property to my agent. At the expiration of said 180 days, X will, within five days, notify my agent in writing, whether or not I desire this contract discontinued, and my failure to do so, shall operate as a renewal of this oontract for a term of an additional 180 days.

When this property is sold, I agree and bind myself to pay my agent, a commission of three per cent, no matter by whom the property has been sold. In the event of not sale being effected during the existance of this contract,no charges will be made for commission, provided, however, that if a sale is made after the expiration of this oontraot, to a party with whom negotiations had been opened by R. He. Williams, that the commission named herein above will be paid to R. Mo. Williams. It is understood and agreed, that my agent's labor ceases when a deposit is put up, and the sZ commission is exned, and will be paid by me whether the title to said property is accepted or rejected by purchaser. My agent is authorized to accept a deposit of ten per cent of the purchase price, and in case of suit to recover any part of the commission due, twenty-fi^'would be added A for attorneys fees." Signed- Frank Reith, Jr."

It appears from pit the petition of plaintiff, substantially, that the foregoing oontraot had been entirely annulled by defendant who had disposed of this property Irrespective and independant of plaintiff, and that plaintiff's contract of employment expressly provides, that if said property was sold during the existance of the contract, that a brokers charge of three per cent of the selling price should be paid to plaintiff; he avers that during the existence of said contract the property was sold by defendant, and that therefore the commission of three per cent , together with attorneys fees, the property having been sold for |6.390.00, and the attorneys fees of twenty-five per cent, making the amount claimed $191.00. for which he prays for judgment.

Defendant in his answer, admits Article 1, denies Article 3, to Article 3, he admits, that if the property was sold during the existance of the contract a brokerage charge of three per cent should have been paid plaintiff, but denies specially that the property was sold during the existence of the contract, and further denies that any compensation is due plaintiff.

In answer to Article 5, defendant avers, that on April, 5th. 1917, defendant notified plaintiff, in writing, that the contract had expired, and that he did not need plaintiff's services any longer, which terminated the contract, and annexed hereto, his answer, and makes part thereof, a 'Idressed to plaintiff by defendant. Defendant $*#9® for judgment dismissing the suit

The letter referred to reads as follows

" April, 5th. 1917.
Mr. R. Me. Williams. -810 Common St.
City;-
"Dear Sir;-
" This is to notify you that I have taken down " your signs at 3837-39 Berlin Street, as my " contract with you has expired and wont need " your services any longer, so far I have had n no applicants. As I am living in the place, " will attend to it myself, thanking you for " your attention, I remain,
Yours Respectfully,
Frank Reith. "

The testimony of plaintiff endevoring to prove an attempt to sell the property in question goese on to state, that he listed, advertised and reported in the usual method of selling property.

Q- Bhat about carding it?

A- I am not sure whether I had it carded or not, but I Judge it must have been. Tes, I see the cards shows a sign waB ordered.

Q- It is set forth in the answer, Mr. Me. Williams, that Mr. Reith, on April 5th. 1917, gave you a notice in writing, withdrawing this property from your hands. Did you ever receive such notice?

A- Did'nt receive it.

Carbon copy of letter shown witness.

Q- In answer to that letter did Mr. Reith call upon you?

A- He did.

That letter íb dated August 33nd, 1^17, and I ask leave to read it into this record instead of copying it. And the letter was read.

Q- That was signed by you?

A- Yes.

Q- Did Mr. Reith call upon you?

A- He did.

Q- What did he say in reference to that?

A- He expressed suprise at receiving a bill, he said he had overlooked the fact that 1 had agency for the property.

Q- Did he, at that time, claim or say anything to you of having revoked the agency? -A- He did not.

Q- What eff^ort, if any, did he make to settle the hill?

A- Make no effort.

On cross examination, this witness, being asked in what manner he offered the property, whether he had advertised, whether he had carded it, substantially testifiedj-

* I generally advertise in the Times-Picayune, generally in fact, always in fact. "

Q~ Do you keep records in your office, Mr. Me. Williams, of advertisements of property? -A- I do not.

Q- Do you remember submitting this property to anybody?

A- Ho, Sir!). I have no distinct recollection of submitting it to anybody.

That closed plaintiffs case.

In behalf of defendant, he himself, swears that the carbon copy of the letter offered in this case, and filed in evidence, was written by him in the original and addressed to plaintiff) mailed to plaintiff by a Miss Carrie Osborn, a young lady working for him at his place of business. He did not mail it himself but the lady in question did.

Q- Did you tell plaintiff about this letter? -A- Tes.

Q- But plaintiff denied that he received the letter?

A- He did'nt say anything about it.

Miss Osborn, worked for defendant on April, 5th. 1917, she was^4kedj

Q- Did you mail the original of this letter to Mr. Mo. Williams?- at the time? -A- Yes, Sir,

Q- To whom did you deliverMjjha^t^etter? —A- To the mail man. Q- You had worked for Mr. fcsMih prior to this? -A- Yes.

Mr. Mo. Williams, recalled under oroes examination and examined "by Counsel for defendant, testified;-

Q- Mr. Me. Williams,was your correct address 810 Common Street? -A- Yes.

<J- On April 5th. 1917? -A- Yes.

Q- Who opened the mail as it is received?

A- I always open my mail.

Q- Ho one else opens the mail? -A- No.

Q- Did you receive any suoh letter from Mr. Reith?

AO Ho.

This is not a novel question. It has frequently been passed upon hy this Court and the Supreme Court of Louisiana. Counsel for plaint!» relies mainly upon the case of Freeman vs. Dlbol^f. Ill 'Court Appeal. 199, in that case the oontract read as follows;-

"I hereby appoint David Freeman my agent, and authorize him to sell my property for the price. I agree^ not to interfere in the sale of the property during the term of this contract. I also agree to refer all applicants for the purohase of the property to my agent. When this property is sold I agree to pay him, my agent, a commission of two per cent".

There wasjan^ active violation of Freeman's rights as decided in tkis-jes» case in the interference and sale by Dfboli^ without any legal right.

Following this we find in 13 Court of Appeal. 385. Kostmeyer vs. Gandry, where the court decides in a contract of the character of the one inquestion, where without cause defendant interferes with plaintiff's agency and without notification, judgment will be in favor of plaintiff, as the contract was for oalue and not a nudjrum pactum."

And, in Ho. 7518, Harvey vs, Hirsch, not yet reported, this Court, through his Honor, Judge Claiborne, quoting with approval the opinion of the lower Court, " that a/ plaintiff spent a great deal of time in endeAvoring to interest prospective purchasers, and while the said oontract was in full force and effect, never having received any notice that defendant desired same discontinued, Hirsoh sold the property to Karl Adler for |3.500.00., and refused to pay plaintiff the three per cent stipulated in said contract as above detailed". The Court goes on further;- "Plaintiff, as a witness, testified, that he advertised the property several times and submitted it to prospective purchasers, and was «HisveriBg advertising the property, at the time it was sa sold by Hirsch". For these and sundry reasons this cause was decided in favor of plaintiff.

The latest expression of opinion of this Court is the case of Harvey vs, Garcia. No. 7797, not yet reported; the syllabus citing Arts.3038 & 3030. R. C. C. and Taylor et. al. vs. Martin, 149 La. 143., in that case as in this case, an attempt was made to hold defendant liable for brokerage and attorneys fees and denial made of receipt of letter revoking power to sell. i'The only difference between that case and this, was that in thiB case it is claimed that not having sent the revocation within five days after the first 180 days expired that forever ended the defendants right to revoke. The author ities are abundant and to the oontrav effect.

It is evidence and it has been proven to our satisfact-A ion, that the letter quoted, carbon copy in the record, written by defendant and addressed to plaintiff, at his place of business on Common Street, one of the principle thoroughfares in the City of New Orleans, and handed to the mail carrier by an employee of defendant, must, in our opinion notwithstanding the denial of plaintiff, have been received by him. It is impossible at this late date to believe otherwise. Every precaution was taken by defen-ripl/frilL itd&Ufcv dant in mailing this letter, given to the posteas», and when received, it was an absolute and final notice that plaintiff had no fmthe^^qn^rol over this property; that his mandate of sale eseaeed.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be and 4 is hereby affirmed with costs of both CourtSagainst plaint-tiff.

(Judgment Affirmed)


text:
    NO. 7905.
    SUCCESSION OF REINHARDT COOK.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By his Honor John St. Paul.

This appeal,as it stands, presents the single question whether a certain pension check payable to the deceased ,belongs to his widow or forms part of his estate. The check was drawn to the order of the deceased on the day of his death and mailed to his address, where it was afterwards received.

The Act of Congress of March 2nd 1896 is entitled "An Act to provide for the payment of accrued pensions in certain cases"; and it provides that pensions merely accrued shall form no part of the estate of the deceased pensioner or be liable for any of his debts, but shall intoe to the sole and exclusive benefit of his widow or children; but that "the mailing of a check drawn by a pension## agent in payment of a pension due, shall constitute payment in the event of the death of a pensioner subsequent to the execution of the voucher therefor".

As a pension is a mere gratuity, it follows that the grantor aay attach thereto what conditions he pleases. Nevertheless payment being once made to the beneficiary the money received then belongs absolutely to such beneficiary and forms part of his general estate in the same way as any other property over whioh he has dominion and control.

December 20th, 1920?

The question might therefore arise whether or not the giving of a check in payment would have the same effect as a payment In cash money. Hor Instance, as In Succession of Turgeau, 180 la 650, where the question was whether the manual gift of a check was the same as if cash had been given; and the court held that it was.

Apparently Congress thought it well to settle the question by legislation; and accordingly has provided, as above said, that the jailing of a check after execution of the voucher shall constitute payment even though the pensioner be then dead.

The pension department- of the government holds that under such circumstances the check "becomes an asset of the estate of the deceased" (See Circular of March 15th 1905); and whilst this holding is not binding upon^ usy we think that it is correct.

The judgment appealed from is therefore reversed and it is now ordered that the widow's opposition to the administrator's account be dismissed at her cost in both courts.

Hew Orleans la,


author: By Ms Honor J»hn St. Paul.

text:
    NO. 7910
    THE CABLE COMPANY VS PERCY D. MITCHELL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

By Ms Honor J»hn St. Paul.

Plaintiff sues for the unpaid balance of the purchase "price of o certain player pim». The judgment be’ow was 3s prayed for, and defendant appealed devolutively. lending the appeal, defendant died and his representatives were duly made parties.

X.

Apoell''nts complain ths,t the .judgment below was based upon a "note", which plaintiff failed to produce. But the only note which figurdd in the transaction was th? written eontraot of purchase containing the nromise to pay for the piano in fixed monthly instalments; and that was made part of the petition.

II.

.Appellants also complain that the judgment recognises a vendor's lien upon the piano although plaintiff is •nly assignee of the cinj.m, the sale of the piano having t.ahen place in this state, but the claim having been assigned outside of the state (bo it is said). But aside from the fact that plaintiff's domicile is at Chicago, there is no evidence in the record to show that the assignment woo oo,rr'''eted elswhere th-ui within the state.

Be th*-'■ o" as it may; ..our law is that "the sale or transfer 0f a credit includes everything which ia an accessory to the same, as suretyship, urivileges ana mortgages". 0. C. 2466. And the common law rule is the same; for "Ho principle is tetter settled than this, th«t the assignment of a debt earries with it an assignment of a judgment (lien) or mortgage by which it is secured”, Batesville Institute vs Kaufman, 18 Wallace 151 (154)

February 7th, 1921.

The principle that at common law, no vendor's privilege results from tho sale of movables, has no application here; since the sale of the piano took plaoe in this state, and gave rise to a vendor's lien; which lien followed the debt when assigned. (18 Wallace 154)

III.

It is claimed that the piano was not in working condition when dulive-ed and has never since been so. But this is contradicted; and the fact that for five years after the delivery, piyJrhfciff continued to make payments thereon (though very irregularly) impresses us, as it did the trif" judge, that tMs claim is only an after thought.

The judgment appealed from appears to us correct, and accordingly

Judgment Affirmed.

New Orleans La,


author: CHAHL3S 7. CLAIB0RF7, JUDO’S.

text:
    Charles F. Claiborne Judea.
    H. T. Cottam & Co., Appellant vs Abraham Moises
    No. 7912
    January 10th, 1921.
   H. T. Cottam & Co., Appellant vs Abraham Moises

To. 791?.

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

CHAHL3S 7. CLAIB0RF7, JUDO’S.

Plaintiffs 30ld defendant a lot of merchandise; defen-isnt refused to accept delivery of them; plaintiffs sold then at a price less than the price for which they sold to defendant, cr.d r.ow sue defendant to recover the difference.

Plaintiffs alleged that between Isay 3d and June 25th, 1919, they sold to the defendant certain merchandise and incurred certain charcos detailed in the itemized statement annexed for -«Rich a charge of $13 30.78 was made; that the merchandise sold vas put on board a steamship at Few Orleans consigned to the defendant at La. Ceiba, Honduras; that without any legal cause the defendant refused to accent delivery of the merchandise when it arrived at Honduras; that the plaintiffs notified' the defendant that unless he received said nerchandiso they would dispose of the same and hold him liable for any loss; that defendant still persisted in refusing to receive said merchandise; whereupon they were compelled to have it delivered to C.J. Warren Í. Co. at La Ceiba, at a loss of $275.60 as follows;

Discounts and rebates $202.11

Loss on perishables 73.49

Total $275.60

that in addition to said loss plaintiffs are entitled to $300 damages for breach of contract. Plaintiffs prayed for judgment for $575.60.

The defendant answered admitting that he had ordered the merchandise, but denying any indebtedness, and for defense averred:

lo That no price had been agreed on;

2o Great delay in shipping the merchandise;

3o That the price put upon the ¡merchandise was excessive;

4o That all the merchandise ordered v;as not shipped, but only a part thereof;

5o That the plaintiffs instructed him to turn over the merchandise to Warren & Co. in order that they might sell the same for the account of the plaintiffs' - which was done and the proceeds remitted to plaintiffs.

There v;as judgment for defendant, and plaintiffs have annealed.

'"e shall examine each ground of defense separately.

10 It is immaterial that no price was agreed unon. Then goods are ordered from a merchant without any stimulation as to price, he has a right to recover their market value. 12 A., 124 (125); 21 A., 411; 114 La., 823; Smith's Mercantile Law p 613.

The testimony on behalf of plaintiffs is that the prices charged were based on "market values at the time of the shipment".

11 It cannot be said that there was any delay in shipping the goods, inasmuch as the orders for the same did not specify any time for shipment, nor on what boat. But as a matter of fact, some delay was caused in acquiring knowledge of defendant's credit, and by the difficulty of obtaining some of the goods ordered, and the impossibility of procuring others. When no time is specified for delivery of goods, a reasonable time is understood!. 6 A., 381; 19 A., 131; 30 A., 264; 7 Caldwell (Tenn) 401. The goods were ordered at- tho-ond -of-'May and shinned at the end of June. No reason is given why this time should be considered unreasonable.

Ill The testimony of plaintiffs is that the prices were based upon market values. There is no testimony to the contrary.

I? All the merchandise was not shinned for two reasons. The first one was that some could not be found upon the maiket, and the second, that the vessel refused to take that which was not shipped because it had no more space. The plaintiffs were not instructed to ship all or none, and the merchandise had no connection with or relation to each other.

V The rule of law is that when a vendee refuses to accept delivery of the goods and pay the price, the vendor, after reasonable notice to vendee, may sell the goods to best advantage, at auction or at privats sale, and hold the vendoe for the difference in price. C. C., 2555 (2533), 2565 (2543); 3 N., 402 (418) 4 N. S., 473; 9 R., 495 (501); 1 A., 216; 2 A., 640; 6 A., 381; 30, 442; 8 A., 48 (50); 7 A., 243; 14 A., 352; 30 A., 254; 35 Cyc, 519 D 592; 17 L. R. A.(N. S.), 807; 2 Kent p 653 No. 495, p 677; No.504; 1 Sedgwick Dam.p 593 § 231.

It is immaterial that the plaintiffs ordered the goods sold for their account instead of for the account of the defendant. In Bartley vs City, 30 A., 267 the Court said:

"As the City would not take the timber, he (plaintiff) had a right to sell it for hi3 own account, and claim from the City as damages the losses sustained".

As the sale of the goods is only a method of determining the amount of damages, it is immaterial for'whose account the sale is made. But it is more rational that it be rade for account of the vendor as he remains the owner of the goods and the price is to be naid to him. It would be a contradiction to say that the goods are 3old for account of the purchaser who has not paid the erice, and who therefore.wa3 not the owner of the goods, and who was not to get the oroceeds of the sale.

The loss in the sale of the goods is proved to be 8275.60.

We know of no law or precedent for claiming any other damages.

It is therefore ordered that the judgment of the District Court be reveised and avoided; and it is now ordered that the plaintiffs H. T. Cottam & Co., Inc.do have and recover judrsnent against the defendant Abraham or Abran lioises for the sum of Two Hundred and Seventy-five 60/100 Dollars with five odr cent ner annum from September 24th, 1919 till paid, and all costs of suit.

Judgment reversed.

January 10th, 1921.


author: Dlnkelspiel. J.

text:
    Irma Davis. -vs- Grand Lodge Knights of Pythias State of Louisiana.
    No. 7914.
    Court of Appeal--Parish of Orleans. -
    Dlnkelniel. J.
   Dlnkelspiel. J.

This suit was brought by Irma Davis, widow of Nathan-iai Davis, who represents that the Grand Lodge of the Knights of Pythias, of the State of Louisiana, under the jurisdiction of the Supreme Lodge of the Knights of )Pythias of North America, South Amerioa, Europe, Asi», Africa and Australia, organized in the State of Louisiana, and doing business within the jurisdiction of this Court is indebted to her, plaintiff, in the sum of $500. with interest from June 30th. 1918, for the reasons;First; that she was married to the deceased, Davis, on S9th. Maroh, 1911.

Second; that her husband died in Maroh, 1918.

Third; that at the time of her husbands death, he was a member in good standing of defendants lodge which was in the jurisdiction of the Supreme Lodge, and being a member of subordinate lodge known as Sassd District Lodge No. 41; that upon the death of her husband she was entitled, as widow, to the sum of $500. from the defendant; that under the charter of the Supreme Lodge she was entitled to the endowment in the sum named to be paid her by the Grand Lodge, Knights of Pythias, of this State; that the Grand Lodge was under the jurisdiction of the Supreme Lodge and as such bound by its rules and regulations; that under said rules and regulations only widows and orphans are entitled to said endowment, and that there were no orphans left uy ner nusoanu at his death, as there was no*4 issue of the marraige be-ween th»m. That proof of death had been made to the defenadant; and, that she was unable to defray the expenses of this suit, and prayed to be allowed to file same under the provisions of Aot 156 of 1913. That at the time of the death of her husband he was the owner of an Insurance Polioy in the Endowment Bureau, of the Grand Lodge of the Knights of Pythias of this State, which would entitle her to the sum of $500» for which she prays Judgment.

The answer of defendant denies everything save and except that it is a body organized under the laws of the State of Louisiana, and under the Jurisdiction of the Supreme Lodge Knights of Pythias; that the beneficiary ox said deceaóea af firct was tne widow, but under the law, he, in his life time ohanged the beneficiary and made it payable to his mother, Mrs. Viola Soott, and that she was the proper person to whom this sum was due, and the sum of $500. was paid to her, as such beneficiary, on Deoember, 10th. 1918, in accordance with the laws, rules and regulations df defendant institution.

Further answering the petition, defendant averB, that in matters of endowment the defendant, Lodge, has exclusive Jurisdiction granted to it by the laws of said Supreme Lodge, and that the Supreme Lodge has no control over the endowment of the local Lodge, and that the only beneficiary at the time of the death was the mother of the deceased member, as above related, and that they had paid the mother. Hence, defendant prays for judgment in its favor.

On the trial of this cause admissions were made and signed by both Counsel in open Court, as follows;-

"This agreement of facts entered into this day between Prowell & Prowell, Attorneys for Irma Davis, and Frank B. Smith, Attorney for the Grand Lodge K. 0. P. of the State of Louisiana, under the jurisdiction of the Supieme Lodge of K. 0. P. of North America, South America, Europe, Asia, Afrloa and Australia.
* It is admitted, that Irma Davis, plaintiff herein, id the wife of Nathanial Davis.
That Nathanial Davis was a member in good standing of the Grand Lodge, K. 0. P.of the State of Louisiana, being a member of a subordinate Lodge, taud District Lodge No. 41, K. 0. P.
That Nathanial Davis held an endowment polioy of $500. in the aforesaid order at the time of his death.
It is admitted, that Irma Davis, wife of Nathanial Davis, was the original benefio-iary under his endowment polioy to the extent of three fifths.
It is admitted, that Nathanial Davis ohanged the beneficiary from his wife to Viola Soott, his mother without his wife's oonsent.
It is admitted, that defendant has paid over $500. to said Viola Soott.
It is admitted, that the Grand Lodge, K. 0. P. State of Louisiana, defendant herein, is under the jurisdiction of, and subject to the authority of the Supreme Lodge, K. 0. P.
It is admitted, that under the aot of incorporation of the Grand Lodge, K. 0. P., State of Louisiana, of which defendant was a member, contained the followtng;-
1 First;- The name and title of this corporation shall be the Grand Lodge, K. 0. P., of the State of Louisiana, under the $uxisS4i jurisdiction of the Supreme Lodge.
It Is admitted, that the original act of Incorporation of the Grand Lodge of K. 0. P. of the State of Louisiana, contained the following; Article, 3, page 16. 1 The objects and purposes for which this corporation is formed are to give aid and assistanoe to its members In case of sickness and provide for their burial In case of death; also to provide relief for the widows and orphans of its deceased members in aocordanoe with the distipline and usage of said Supreme Lodge, K. 0. P.
It is admitted, that the first four lines of Article 1, of the amended act of incorporation of the Grand Lodge, K. 0. P., State of Louisia -na, is as follows;- ' The name, style and title of this corporation shall be the Grand Lodge of Knights of Phthlas of the State of Louisiana, under the jurisdiction of the Supreme Lodge.
It is admitted, that Article 3, of the original aot of incorporation, was amended as follows The objects and purposes of whioh this corporation is formed are to give aid and assistance to its members in case of sickness, and to provide for their burial in case of death, also to provide relief for the widows, and orphans or other relatives, of those dependant upon its deceased members, in accordance with the discipline and usage of the Supreme Lodge E. 0. P. of Noith America, South America, Europe,
Asia, Africa and Australia.
It is agreed, that wanting nothing submitted in this agreement of facts shall prevent eith Counsel herein from producing such other evidence or documents which may be found necessary in this oase."

We have oarefully examined the various articles quoted in reference to the matters submitted, and we find Article 13, Section 3, pages 37 and 38, Supreme Lodge Constitution; "Authority of the Supreme Lodge is hereby given to the following jurisdictions to oonduot their endowment departments"; and amongst these comes Louisiana.

Article 34, Seotion 5, page 38 of the Supreme Lodge Constitution; quoting a part necessary for a decision in this case only; -"A member of the order of Knights of Pythias may change the name of the beneficiary on his policy in accordance with the laws of the State of Louisiana without obtaining the consent of the beneficiary named on the polioy previously issued."

And, Article 3, Section 5, page 58, Constitution of defendant; "Within the above restrictions each member shall have the rignt to designate nin beneficiary, and, from time to time have the same changed in accordance with the laws, rules and regulations of the Sooiety, and no beneficiary shall have or obtain any vested interest in*» said benefit until the same has become due and payable upon the death of said member."

Section 6, Act No. 356, General Assembly of Louisiana of 1913;** " A clause j*£é» the policy, making it subject

to suoh modifications made and to be made, form a part of the contract and authorize the amendment; that even the wife as the original beneficiary was bound by it, and could not recover after the change, although she still held the original policy".

This identical question was presented to this Court, s and will be found in 11. C. P. p. 117. Mrs. Hattie Marshall vs, Knights of Pythias. In that case, plaintiff claimed of the Lodge the sum of $500., and avered, that she was married to her husband, Victor Marshall, in 1900; that he became a member of defendant corporation which issued to him in 1904, an endowment polioy, of which she was the beneficiary; that he died in 1913, and that defendant refused to pay.

The defence was that the polioy mentioned in the petition of plaintiff had ceased to exist since June, 16th. 1911; that Marshall changed his beneficiary, and another certificate or nolicy was issed in favor of Viotoria Rankin, his daughter, and that said change was made in aooordanoe with the laws, rules and regulations of tae defendant corporation.

To this the plaintiff replied that neither Marshall nor the corporation had any right to change the benefioi -ary, beoause at the date of the original policy, in her favor, there was nothing in it, or in the laws of the order providing for a change of benefioieries.. The original polioy in plaintiff's favor promised to pay her "in accordance with the endowment laws Mntsxixgx governing this Grand Lodge, and subject to such modifications made and to be made by the Grand Lodge K. 0. P." eto.

It was admitted there, at the date of said polioy, that there was nothing in the laws governing the Knights of Pythias oonfering upon any member the right to change the beneficiary." The Court goes on oiting authorities; 48 A. 1203. 13 Pacf. 1125. Alba vs, Insurance Co. 118 La. 1031. and further; " It is immaterialthat the original beneficiary held the certificate". Quoting , Thompson vs. Amos Lodge, 4 C. P. 317.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the Judgment of the lovrer Court be, and the same is hereby affirmed with cots of both Courts.

(Judgment Affirmed.)


author: Dinkelspiel. J.

text:
    Leopold J. Martin- -vs- Robert E. Pool-
    No. 7916.
    Court of Appeal Parish of Orleans.
    Dlnkelanlel. J.
   Dinkelspiel. J.

Plaintiff institutes this suit against defendant substantially, for this, to-wit;

That on or about June, 3nd. 1914, the Washington Cypress Lumber Co., a corporation existing under and by virtue of the lavis of the State of Louisiana, domiciled in the City of New Orleans, was the owner of a large tract of land, in the County of Washington, State of Mississippi, which it desired to sell; that prior te said date it had engaged the services of plaintiff to find a purchaser for the timber on said land comprising about forty million feet of timber; that pursuant to plaintiffs understanding, he plaintiff v/as proceeding to negotiate a sale of said timber, according to his contract of employment, and would have succeeded in affecting a sale and have earned a commission of 5$ of the price to be obtained. That whilst"plaintiff was so engaged in negotiating for a sale of said timber, the defendant herein learning that the said Cypress Company desired to sell said timber, and believes that he would have been able to find a purchaser and earned a commission, about the date aforesaid, proposed to said Company, that he would undertake to find a purchaser for said timber, if allowed certain time to do so, for a commission of 5$ on the purchase price to be paid, but the company having already secured the services of plaintiff, as aforesaid, would only consent to enter into an agreement as proposed by defendant, provided he would agree and bind himself, in writing, to make equitable adjustment of the commission with plaintiff, and thereupon, defendant executed and delivered to said Company an undertaking, in writing, for the use of plaintiff, and in order to secure said contract, in the words and figures, following, to-wit;

Washington,Cypress Lumber Co.
"New Orleans, June, 3nd. 1914.
"Hr. Eugene Martin, President,
"Washington Cypress Lumber Co.
"New Orleans, La.
"Daer Sir;-
" In consideration of one dollar cash in hand n paid, and of your Company accepting the pro- " position of the Belzoni Hardwood Lumber Com- " pany, through me, instead of accepting either*»» " of the propositions of the parties dealing " through L. J. Martin, I will agree to divide " the five per cent commission to be allowed " me as follows; two and three quarter, (3tj) " per cent to be allowed me, as follows " two and three quarter (3f) per cent to be " allowed to me, and two and-one quarter (3&) " per cent to be allowed to L.J. Martin.
"Yours Very Truly,
"R. E. Pool."

A copy of this agreement is annexed to and made a part of the petition.

That having thus secured the proposed agreement from the Cypress Company, -plai^iiff proceeded to find a purchaser for said timber and he procured an offer from a corporation 3tyled Belzoni Hardwood Lumber Company, for the purchase of said timber at prices agreegating more than $300.000.00., which was satisfactory to the Cypress Company, and it was ready and willing to close the sale accordingly, but was prevented from doing so by reason of the fact that there was a large outstanding mortgage on said property and the assent of the holders of said mortgage, that is to say, of the bonds secured by said mortgage, was a pre-requisite of the sale and could not be obtained*

That plaintiff, claiming that he had done all that he undertook to do, and that it was not his fault that the sale was not made, made demand on the Cypress Company for the commission he claimed to have earned, amounting to §13.000.00. or thereabouts, and afterwards brought suit against Mrs. Anna F. C. Martin, and the Cypress Company, in the Civil District Court, alleging that Mrs. Martin was the owner of said property and organized the company for the purpose of selling same; that he had made the contract herein above cited} had found a purchaser for said timber; that the sale was not made solely because the seller could not make title, and therefor demanded his commission according to said contract. Said suit is Ho.111.071, of the docket of the oiv-il District Court, and is made part hereof.

That said suit did not proceed to judgment for the reason that a compromise was agreed upon between defendant, Pool and the Cypress Company, or Mrs. Martin, aocording to which the sum of $1.500.00^waa paid to him in full satisfaction of his deman; said suit was dismissed, and plaintiff is advised that in equity and in good conscience he is entitled to 9/30 of the amount so received by defendant by virtue of said agreement so made by him, but for said agreement he would have been in no position to claim anything in the premises.

Plaintiff supposes, that defendant was obliged to pay some reasonable compensation to counsel employed by him to bring suit so compromised, but not knowing the amount paid, he is willing, however, to allow as a credit upon the demand herein made 9/SO tha. of said reasonable stm as the defendant shall prove that he had paid to his Counsel for bringing said suit and affecting said compromise. And finally prays for judgment for §675.00. less any credit as herein stated.

To this petition exceptions were filedj 1st— same was too vague and indefinate to permit a safe answer.

2nd- and non-joinder of parties defendant}

3rd;- petition sets forth no legal right or cause of action. These exceptions were overruled and referred to the merits.

The answer of defendant denies Artioles one and two, and in reference to article 3, says; that he had no knowle dge of plaintiff being engaged, but believes that the Cypress Company plaoed the timber lands in the hands of a number of agents for sale on commission; that it was only after defendant had secured the Belzoni Hardwood Lumber Company as prospective buyer of the land, that he, defendant, agreed to permit his commission of 5$ to be reduoed to 2-Jfí commission on the sale to be secured by defendants efforts, in order to enable the Cypress Co. to pay a commission of 3¿ $ to plaintiff who is a brother of Eugene Martin, president of the Cypress Company.

Defendant has no knowledge of plaintiff abandoning having abandoned any negotiations for the' sale of the lands, and for lack of information denies this allegation.

He denies, that after having agreed to accept a smaller commission, he then proceeded to find a purchaser, but avers that he had already secured his purchaser when he entered into the agreement. He admits that the sale brought about through hiB efforts fell through, because the owner of the timber lands, who was the wife of the president of tiie company, could not deliver an unincum-bered title to the property; that there after he brought suit as alleged against the owner and her selling agent of the company.

In answer to article 5, admits that he compromised his claiipa against lire. A. F. C. Martin and the company, but denies that plaintiff is entitled to any part of the sum . of money received by him in the compromise.

To Article 6, he admits having compensated his Counsel for their service in prosecuting his claims, and in answer to Article 7, says, that he has always refused to pay plaintiff any sum of money on his pretended claim, believing that he owes him nothing.

Defendant prays for dismissal of plaintiffs suit at his costs and for general anda, equitable relief.

At page 9 of the transcript;-

" This agreement made and entered into the _ day of April, A. D. 1916, by and between Robert E. Pool party of the first part, and the Washington Cypress Lumber Company and Mrs. Anna F. C. Martin, parties of the second part, withnesseth;
That whereas the said party of the first part had brought suit in the Civil District Coyrt for the Parish of Orleans, State of Louisiana, , against said parties of the second part, seeking to recover a sum of money claimed by him for alleged services rendered under a certe-in .contract exhibited with his petition in said suit in procuring a purchaser for the property therein mentioned; and whereas, he is willing to compromise his claim under said contract, to dismiss said salt, cancel the said contract and all further claim against the parties of the second part or either of them, upon being paid, the Bum of fifteen hundred dollars in cash; and, whereas, the parties of the second part are willing to mate such compromise accordingly; now therefore, in consideration of the premises and the payment to him of the sum of Fifteen hundred dollars in cash, the receipt whereof is hereby acknowledged, he, the said party of the ftfrst part, doth hereby renounce all further claim against the parties of the s econd part or either of them under or on account of the said contract, doth agree to dismiss said suit and cancel said contract and all further claim agai -nst the parties of the second part or either of them thereunder.
" As witness the signatures of the said parties, this the day and the year first herein above written.
" Signed- Robert E. Pool-
Witnesses;- George B. Smart.
George Montgomery."

It would serve no useful purpose to quote the testimony in this case of the witnesses, the defendant, Eugene Martin, Jr. Francis C. Martin, for the reason, that substantially, the suit in Civil District Court upon which this suit is brought, No. 111.071, Division, 'B', R. E. Pool vs. Washington Cypress Lumber Company, which suit was for five per cent commission against said company et, als, filed January, 18th., 1915, and which claim of Mrs.- Anna F. C. Blake, wife of Eugene Kartin and Eugene Martin, Sr, gener-ally and in solido, for the sum of |l3.000.00.for commission of 5 $ on the sale of timber lands, made by plaintiff, aa claimed, to the Belzoni Hardwood Lumber Co., property sold for §340.000.00, commission 5 $, §13.000.00. And aa herein heretofore shown, this suit was compromised by defendant in this case for the sum of §1.500.00., less moneys paid for counsell fees and sundry other charges bringing the amount of the compromise received by defendant, ir¡ actual cash , to the sum of §1.075.00., and the suit just referred to dismissed.

At the outset it has been shown that this commission of §13.000.00, under an agreement between Pool and the Lumber Company, was to have been divided, one portion to Mr. Margin, plaintiff in this suit and the balance to Mr. Pool.

A complete and thorough examination of this record convinces us that this agreement has not been carried out by defendant in this case, on the contrary, every evasive issue that could be presented to the Court, either through exceptions, answers and testimony , has been used by defendant without results and it could not have been otherwise. The Contract is legal and under article 1890 of Civil Code; " A person may also, in his own name/make some advantage for a third person the condition or consideration of the commutative oontract^or onorous donation, and if such third person consents to avail himself of the advantage stipulatedi in his favor, the contract cannot be revoked".

His Honor, Judge Skinner, of the lower Court, in an able written opinion in this cause, after a careful consideration of the law and the facts, came to the conclusion that this was a stipulation pouí£ autrui, and rendered judgment in favor of plaintiff and against defendant in the sum of $483.75, which we find correct.

It it therefore, ordered, adjudged and decreed, $hat there novf be judgment in favor of plaintiff and against defendant in the sum of $483.75. with legal interest from 16th. May. until paid., and for costs of both Courts.

('Judgment Affirmed.)