author: Dinkelepiel; J. Dinkelspiel; J,

text:
    NO. 8190
    COURT OF APPEAL PARISH OF ORLEANS.
    OSCAR P. MOHR vs. FOUR BROTHERS ICE CREAM COMPANY.

   Dinkelepiel; J.

The plaintiff, an architect in the city of JTew Orlssns sues the defendant for the 3um of §300.00, being for plans, spe-cificetione and extra work, balance due plaintiff on alleged con-* tract to erect a two story building for defendant costing the sum of about §7500.00; th't defendant had frequently promised after paying $300*. 00 on the original bill, which wfs for §450.00 to pay the remainder, filling to do so, henos this suit.

pleading The defendants, for answer,/ first a general denial, admit th?t plaintiff did present them certain drawings end specifications, but denied that same were drawn under any oontract made between parties or that plaintiff obtained estimates and bids for seme, they admit that plaintiff presented them with a bill for §450.00, §300.00 of which 'was paid by them through error, they deny that they had ever in any way ordered the plans o.nd specifications as drawn up by plaintiff, thet he did sc without their consent or agreement and oontrary to their expre-sed orders and they allege that they wanted plans for a building on the rear of their property, 310'So. Rampart Street, in this City, which was to cost not exoeeding §3000.00, that plaintiff understood their orders, but contrary tc same presented a plan for building entirely unnecessary for their business, absolutely beyond their means for payment, of which ft.ct pie in tiff was notified and to v/hich he did not pay the slightest attention and that if they were able to have read the English language, to which they were foreigners,and had understood the plans and specifications presented to them, they would have never paid §300.00, Which they paid under alleged false representations by plaintiff and for which they ask, in reconvention, a judgment and the dismisse.1 of plaintiff's suit.

Without entering into a full disoussion of all the testimony in this case, together with the plans and bids for work and specifications presented hy plaintiff in his testimony and annexed to this record r-cora, plaintiff swesrs most posi-tivaly- that before drawing up these plans at his office in this city, under an appointment with one of the defendants who called to see hi®, Mr. Niok Kleanennaks, on or about the 19th of October 1919, stating that he had been referred to him by Gerber Brothers who were landlords of the defendants and for whom plaintiff had remodeled building oocupled by them and he testifies that defendants told him that they wanted to build a bakery on the rear of the property 610 So. Hampar.t Street and they disoussed the building and everything in reference thereto and that he wanted to build a modern up to date building which would cost between Seven and Eight thousand dollars, and would be a very modern, sanitary and absolutely up to the last building oode, and that he was authorized to prepare the plans and specifications in accordance with that wish and whioh he did and this conversation took place between the parties mentioned at plaintiff's offioe.

He further testified that he prepared the plans dis-oussed and agreed upon between him and the defendant and on the 6th of November, following, presented a bill for services rendered for 1450.00; that was the usual terms for architects work; the • building was completed he was to get ten per oent of the amount it would oost; if not, he was to get three fifths of that amount for plans and specifications.

He goes on at great length in his testimony to state what he did, that he had the place surveyed by a surveyor, for which the defendant paid the bill and says that when he presented the bill that he was told by Kleanennaks that they were a little pressed for money but that he would pay him two hundred dollars cash and pay the balance within a month; he was desirous then of building a much cheaper building, the -whole not to ex-oeed three thousand dollars; he further testified substantially that there was a contractor by the name of McGovern who subsequently ereo-csd the building for defendants ~t much less cost and that he, plaintiff oould have nothing furth-r to do with the matter, be -alaims the additional fifty doliera''*0 compensation for endeavoring to get lower estimates for the building, hut the best he oould do was to get a two story building, doubtless complete in every way,- but muoh more expensive than the defends ants wish to pay, he details many oonyersation all in the English language, whioh he had, particularly with the defendant named and that when he foutd that he oould not ereot the building as desire by the defendants he had no further oonneotion with them and refused to have any; he admits that these parties all spoke broken English but he did not know that they oould neither read nor write.

In behalf of the defendants, there were four witnesses. The first, Hr. Q. Gerber, who had known both plaintiff and defendants for many years, the defendants being for years, his ten-ents in the building referred to and they were neighbors; he testified that Mr. Eleanennaks informed him- that he was going to build a single story bakery, that he had an old double house that he wanted to tear down and this witness told him that if he wanted work of this oharaoter that he better get an architect and he suggested the employment of the plaintiff in this oe.se, he frequently saw plaintiff and defendant together in defendants' place of business and he knows that plaintiff want to the defendants' shop, examined everything and told this Witness "those fellows want to make a single story and I want to make a two story, you can talk him into doing that, a two story would look better", I asked him how muoh it would cost and he told me about seven thousand dollars, when I informed defendants of this in the conversation he replied "I don't want a two story building, I oannot pay for it" and plaintiff subsequently told this witness that if they did not want a two story building they had better let the whole matter alone, he testifies substantial]v that defendants frequently told him that they oould not afford-to put up any -such a building as the arohiteot wanted them to do, they did not -.’ant a two story huilding f-nd that the pls.lntlff then being told this by this witness again expressed himself th?t he had better leave the whole matter alone and let them do it themselves, if he oould not make a nice looking building better leave it alone.

This witness further goes on to testify thet defendants never wanted to spend more than three thousand dollars •and when the plaintiff told them seven thousand they insisted they oould not afford it, did not have that muoh money, they were not willing to do it, that they were hard working men and that they did not need a haddscme two 3tory building for their purposes, the sum and substance substantially of the further testimony of this witness who is a business men but not muoh of an educated man, was to the same effect and the entire conversations were either at his place of buslne.se ants or at defend'.-nts and it was thoroughly understood between plaintiff and defendant that this defendant oould not spend more then three thousand dollars and they onljr wanted an ordinary building in whioh to bake bread and thats what they finally put up and he knows too that Niok Klesn-ennaks neither reads nor writes, he can about sign his name, when ever he wants anything done that requires reading or writing he calls in witness's olerk to aid and help him.

One of the defendants, Hick KLee,ne&* nake testifies that he is a member of defendants' firm, he had entire oharge of dealings with plaintiff, that he is illiterate neither reads nor wixk writes and he signs his name the best he oe.n, he is somewhat acquainted with figures, he remembers the first time plaintiff oalled at his piaos, he never 'went to plaintiff's offioe, he did not know where it was, and all the conversations had with plaintiff were in their shop> plaintiff was reooommended by his neighbor and former landlord, Hr. Gerber and when plaintiff oalled at his place, he explained to him ae best he oould |ust what building he wanted, and amongst other things said to him "X want a one story building, flat roof, plaintiff answered "no, it will not be right", he then testifies "I don't .vent tc spend a whole lot of money for this" and pi'intiff told him "I v/ill see what X can do"; amongst other iht matters testified to by this witness he says th=-t plaintiff ¡•shed him ho-.v muoh he proposed to spend on this building and Ms answer was ¡..bout three thousand dollars, no more then that and he says that plaintiff said alright I will see what I oan do for you he subsequently returned with plans, lid not mention the price until he presented a bill and not being able to read or write when asked to pay a oertain amount of money he did pay two hund-' red dollars but made no promises of paying anything more, believing that he had paid the prioe in acoordanoe to the building he oontemplated putting up; after reoeiving the two hundred dollars plaintiff said to him, you owe me two hundred and fifty dollars more and hie reply wss "are you going to charge me that muoh? And plaintiff said "yes", the plan costs

$7500.00", he immedie.tely made protest end told him he did not wont that kind of a plan and ple.lntiff says that he made that plan for him and it would not fit anybody else's house and walked away from the establishment. Subsequently after he had left, not being able to understand the plans I took them next door to '.lx. Gerber, showing them to a Hr. Hart one of the clerks there, who had frequently translated writing to me before, who read it for me and th'-t was the first time th1. t I understood anything at all about the plans which plaintiff says he drew up and presented to me, I never understood it until it was explained to ms by Hr. Hart, I did not tell plaintiff to go ahead to get additional bide or ever agree to pry him fifty dollars for th‘-t, I told him expressly as X had always done before th..t I oould not afford and would not be willing tc pay $7500.00 or $8000.00 for a building and I did not v/.-.nt a building of thrt kind. He further testifies that he employed Hr. IScGowan and he put up the building X wanted just a three builUn^ of briok th*t building oc3t r.ie $3850*00, that he did not give "the plane or specifications left by plaintiff to Mr. MoOowan and the building was ereoted by him for the price and sum aft stated and that was the oharaoter of building he wanted and no other, that plaintiff presented him denies with a bill,/chat he agreed and promised that he would pay the differenoe or $350,00 at the end of the month, denies that he wanted a two story building, that he only wanted a one story building built out of brick and to be used for a bakery to make bread, not a plaoe to sell bread, because he had a place in front( used as a confectionery, where he sold bread,oakes and other tk$ things, but in this particular plaoe he only wanted to bake the bread and that is what he testifies he positively told plaintiff to make plans for and nothing else. This witness on oross examination, considering he is an uneduoated man did not waiver materially in any of the testimony given by him in ohief, he details that he had been in this Country sinoe 1908, hard working man, was a member of defendants' firm and tha.t he had oharga of the building in question and was the only one that knew anything muoh about it, one way or the other.

Arthur Kleanennaks, one of the defendants and a broths^ of the witness who had testified in this oase neither reads nor writes, oannot sign his name, knew the plaintiff, had saw him oome into the shop the first time to have a conversation with his brother Hiok and the substantialparts of his testimony confirms what Hiok had testified to, that he wanted plans to build a plaoe and told him the kind of plaoe he wanted to build and when Mr. Mohr spoke of $7600,00 during the course of the oonver-. sation he was emphatically told by his brother that it was entirely beyond his means, that they could not pay over three thousand dollars; never saw Mr. Mohr but onoe.

Benjamin Hart, a witness for the defendant, who knew them very well, worked in October and Bovember 1919 for Gerber Brothers and he says that he was present on one occassion at a conversation between plaintiff and the defendant in reference ■bo the.proposed, building of a bakery for the defendants; that cSSii versatlon was in 193.9, about the latter end of the year and substantially KStipBasKSijc testifies that plaintiff was speaking to Mr. Gerber in order to get him to induce the Greeks next door, so plaintiff called them, to erect a two story structure and that Mr. Gerber told plaintiff, "you know what they told you from the beginning and what they want, they want a'one story structure, the oost not to sxoeed Three thousand Dollars"; Mr. Gerber further told him . "I reoommended you and I would like to see you get that work."

Witness is not positive but he thinks this conversation between these parties was before plaintiff was employed; subsequently Mr. Hick Kleanennaks came over with the documents heretofore testified to, he asked me to read the bill for him as he could not read, which I did. In a general way this witness testifies that this these people were absolutely illiterate, could not read nor write and that he, witness, explained as best he oould, the matters testified to.

Ws have thus endeavored to state substantially the evidence as presented'by the testimony/the witnesses in this case on both sides.

We are of the opinion that on acoount of the inability particularly of Wiok Kleanennaks to express himself in any sort of English to be understood,that plaintiff fell into an error in disobeying the instructions given him by the defendant and att tempting to drew plans and specifications for a building which would oost almost Ism three times the amount of money which defendants were willing to pay, and the best proof, in our opinion, of this, is the employment of another oontraotor by the defendants, who built the structure they wanted and which they expected plaintiff to draw plans and specifications for, costing the sum of $32§0.00. It is unfortunate that plaintiff, with a great deal of labor and skill endeavored to mske and did make plans and speoifioations contrary to defendants' orders and against their objections. We are satisfied that plaintiff did 'exert iSSmeli and try-í.to persuade: the defendants to accept pleat, and speoifioations "as presented to them by htm, which they had always refused, cut we think that haring paid him the two hundred dollars, that he Is entitled to that amount, but no more.

We are further of the opinion' that notwithstanding the oounter claim made by defendants in reoonvention for the money thus paid, that plaintiff was entitled to same and said claim should and is therefore dismissed.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the Court aqua in favor of plaintiff be and the seme is hereby reversed, annulled and avoided, and that the reoonventional demand of the defendants be rejected and that there now be judgment in favor of defendant rejecting plaintiffs olaim with oosts of both Courts.

Judgment reversed.

NO. 8190

COURT OF APPEAL PARISH OF ORLEANS.

OSCAR P. MOHR vs. FOUR BROTHERS ICE CREAM CO.

Dinkelspiel; J,

On rehearing.

-— Wa have oarefully reexamined this ease and wo find that whilst we ware in error in stating that plaintiff was to furnish opooifioatioas and plane for a one story building, that we in tho original opinion rendered in this ease, stated that he was to furnish plans for a two fitosy building, hut we did not de-cido thio ease for that pastleular season. On the contrary tho question presented wao entirely one of faet; tho burden of pso(3f wao on the plaintiff? wo were satisfied he had not and did net sustain thio burdoa, hut on the contrary the evidence preponderates i» favos of defendant and for that reason we deaidod the case ao wo did.

5?©r the saasons assigned it is orderod, adjudged and etoossod that our former opinion rendered in this oase he maintained and that the Judgment there will not be disturbed and th® Judgment of tho lower Court whloh was in favor of plaintiff bo sovorsod, aaullsd and avoided, the reconventione.l demand of tho dofandante bo sejootad end that there be a Judgment now in favor of defendants, rejecting plaintiff's claim with sosts in both oousuoo

-Judgment reversed-


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    Charles F. Claiborne, Judge.
    FREY WHOLESALE GROCERY CO. VS COCINO & SONS, Appellant.
    No. 8191.
    January 16th, 1922.

   FREY -fflOLESALE GROCERY CO. yg COCINO & SONS. Appellant.

No. 8191.

CHARLES F. CLAIBORNE, JUDGE.

Plaintiff and defendants claim damages from each other resulting from a collision of their automobiles.

As is usual in such cases there Í3 conflict in the testimony, each placing the fault on the other. The undisputed facts however are that the plaintiff was driving his car on the right side of Dumaine Street going towards the River; that on Dumaine Street there is a street car track. The defendant v/as driving a truck down Dorgenois Street going towards Esplanade Avenue. Tnen the plaintiff reached the comer of Dumaine and Dorgenois Street, he saw the truck coming down Dorgenois Street. It was too late for him to stop, and in order to avoid the collision, a3 he thought, he veered to the left. The truck did not stop, but continued on its course; when it was struck by the automobile.

The plaintiff says it v/as struck on the car track; the defendant says that it was only after he had reached the lower side of Dumaine Street. It is evident that if it v/as the duty of neither the one nor the other to yield the right of way to the other, it was a case of mutual fault or negligence for which neither could recover. But if it was the duty of one to yield to the other, and he did not do so, then he violated his duty, he committed a fault, for which he must suffer the conseouences. The City of New Orleans has adopted 3ince August 7th, 1918, Ordinance Mo. 5181 known as the "traffic ordinance"

"regulating the manner of usd on the public streets and thoroughfares of the City of New Orleans of carts, drays, wagons, omnibuses, automobiles, motorcycles, and every description of carriages kept for hire or livery purposes, or soliciting or transacting business thereon, or kept; for private use &c".

Section 8 of Article I of said ordinance provides:

"Biaht of wav: Vehicles traveling on the following streets have the right of way over vehicles approaching on intersecting streets, namely: (then follow the names of certain streets) and also all other streets with street car tracks. Vehicles approaching above streets and avenues from intersecting streets shall, before crossing or turning into sane, cone to a full stop".

In view of the great and increasing number of automobiles, and of one danger of injury to person and property resulting from collisions, it is the evident duty of courts to enforce the ordinance as the inflexible rule of conduct for drivers of such vehicles, to secure protection to person and property. Bach driver of an automobile has a right to drive his machine in accordance with the rules laid down in the traffic ordinance, and has also the right to presume that the driver of another machine will obey the ordinance and drive in accordance t} ere-with. .Then the plaintiff on Dumaine Street, 3aw the truck coming down Dorgenois Street, he had a right to presuras that the truck, in the language of the ordinance, would "come to a full stop", and thur; give him the right of way. But the defendant did not do so; he only diminished his soeed, and not much at that, for he ran across Dumaine Stredt.a distance of at least fifty feet, after he saw, or should have seen, the plaintiff. But it seems that the defendants ’were intent upon watching the possible approach of a street car on their right in the direction ox the River, rather than anticipating any vehicle on their left. It was not plaintiff's duty to 3top. Taken by surprise, he swerved to the left in the hope of averting a collision. There is no certainty thnt if he had continued a straight course along uumaine Street that he would have avoided the truck, - as defendant contends. 145 La. 334; 50 A. 441; 113 La. 653; 139 La. 253; 539 ; 25 A. 235.

The judge of the trial court was of the opinion that the defendants had violated the traffic ordinanae and neld them liable for the damages, and we agree with him.

Judgment affirmed.

January 16th, 1922.


author: BY: WILLIAM i. BELL, JUDGE.

text:
    FRANK J. NOLAN versus OWEN W. BROWN, et al.
    NO. 8200
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:

   BY: WILLIAM i. BELL, JUDGE.

Louis M. White, appellant herein, is one of two defendants-against whom Judgment of the Court below was rendered ^.n favor of plaintiff, holder and owner of nine certain promissory notes described in plaintiff's petition. There is no dispute as to the facts of this ease, which are briefly, a3 follows:

The notes sued upon, and of which the plaintiff, Frank J. Holán is holder and owner for value, were all dated at Hew Orleans, June 18, 1919, each for the sum of $131.83, with 8% interest thereon from maturity until paid. The said notes being made by Owen W. Brown, to his own order and by himself indorsed, all of said.notes being also indorsed by Louis M. White, the said notes maturing respectively October IB, Hovember 15, December 15, 1919, and January 15, February 15, April 15, May 15, and June 15, 1920.

To the suit herein filed on these notes. White pleads discharge from his obligations on the grounds that he had no notice of dishonor. It appears that Holán originally held another series of nine notes each for $40.00, also given by Brown, the maker, and endorsed by White as surety. All of this series of notes having fallen due and being about to become prescribed in the order of their maturity, were placed in the hands of Holán, attorney for collection on or about October 13, 1919. The attorney wrote to the maker and endorser informing both of them that the notes were nearing prescription, and unless settlement was made would be sued upon. This demand brought Brown and White to the attorney's office on the second or third day after written notice had been received by them, and both of these parties to the old series then and there signed and endorsed an entirely new series of notes as above described and upon which this suit is predicated. Attorney Wolff's testimony shows that both Brovin and White handed him the said notes for account of Holán, and at the same time handed Wolff a memorandum slip in the handwriting of Holán, whom they had Just seen, reading as follows:

"Hiñe note3 - $40.00 each dated June 19, 1914.(360) Interest on $360.00 from June 19, 1915 to June 19, 1920 - 5 years at 4% per annum. Principal-'an3 Interest cash to~~be paid. Balance due to be settled by 12 new notes of"lf31.83 each dated June 19/19 payable monthly."

As Wolff explains in his testimony, his client had figured that the old nine notes at $40.00 each amounted to |360.00 with interest due up to a certain period, making a total of 1382.00, and that he divided the total of $382.00 into twelve notes, the series now sued upon which was signed and endorsed in his presence, he, Wolff, then giving all of the old notes, nine in number, to Brown and Rolan. Wolff further testifies that three or four of the present series of notes sued upon were already past due at the time they were given by Brown and White to Wolff, and that these parties agreed to take up said notes within the next few days. This agreement not being kept, Wolff wrote to both Brown and White on December 22, 1919, insisting that the terms of the compromise resulting in the issuance of these new series of notes should be complied with and that all of said notes of the series then due should be immediately paid. Receiving no reply from either party two other letters of demand were made by Wolff on January 21, 1920 and on October 8, 1920. The memorandum slip and five copies of letters written by Wolff to Louis M. White appear from the evidence to have been offered at the trial but not being in the transcript brought to thi3 Court, and Wolff having died since the appeal herein taken, on motion of counsel now representing the plaintiff and appellee and on consent stated in open court by counsel for White, appellant, these documents have been filed and made part of the transcript by order of this Court.

It does not appear from the evidence that the series of notes sued upon were ever protested or notice of dishonor thereof given to the endorser, White. It i3 not denied that White, endorsed all of the nine notes sued upon, nor that he was a party to the agreement made in Wolff's office when the original series was substituted by the new series of notes referred to.

The facts of this case being clear, the only question involved in one of law, that is, whether or not the endorser, Louis M. White, is liable in solido with the mater. To the original petition there was an exception of no cause of aotion filed by White, which was at first maintained by the Court.

Plaintiff applied for rehearing which was granted, and he was also allowed to file an amended and supplemental petition. To both the petition and supplemental petition, the defendant, White, again urged the same exception of no cause of aotion, which exception seems to have been referred to the merits of the case and on final hearing both exceptions were overruled, and judgment for plaintiff as prayed for was rendered. Defendant pleads a discharge from liability upon the ground that no notice of dishonor was served upon him, as required,under Sec. 70 and 89 of the Negotiable Instruments law, Act NO. 64 of 1904. The following sections of the Negotiable Instruments Act should be noted, to wit:

"Sec. 109. Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or IMPLIED.
"Sec. 114. Notice of dishonor is not required to be given to an indorser in either of the following cases:-
1. Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument;
2. Where the indorser is the person to whom the instrument is presented for payment;
3. WHERE THE INSTRUMENT WAS MADE OR ACCEPTED FOR HIS ACCOMMODATION."

The learned judge of the Lower Court has, in our opinion, taken a correct view of the law applicable to this case and nothing need be added to his opinion forming part of this record. There can be no doubt that the second series of notes given herein were intended to avoid a threatened lawsuit upon a former or original series of notes, and that both the maker and the endorser were in this respect peculiarly accommodated by Rolan. The holder of tin notes here sued upon was in no-manner obligated to notify White, the endorser, of the dishonor of said notes, for the reason that the memorandum slip offered in evidence, as well as the aotivd, personal participation of the endorser in the compromise plan agreed to by him in the office of Rolan’s attorney, show plainly that whatever might have been the endorser's liability under the original series- of notes, the circumstances of his subsequent liability was clearly fixed upon the second series of notes, wherein he accepted the special accommodation granted him by the holder of both series of notes, and whereby the much desired avoidance of litigation against both parties to the notes was clearly solicited and obtained by them to their advantage. It is al30 clearly to be noted, as heretofore stated, that every inference Justifies the lower Court’s conclusion that the endorser obtained accommodation on the second series of notes, as drawn,from the fact that the record shows that when the second series of notes were endorsed by White in the attorney'8 office, several of them were then past due and already dishonored when he endorsed them. It is not to be presumed that he intended any different conclusion to be drawn from his actions in regard to one or more notes in the series sued upon than upon all other notes in the series. Had White merely endorsed the second series of notes at Brown's solicitation without knowledge that Rolan had threatened suit on the first series, the situation would have been quite different, and there can be no doubt from White's own testimony and from all other evidence in the case, as well as from the copies of the attorney’s letters personally addressed to him, that he knew all of the circumstances which induced Rolan to take the second series in lieu of the first series of notes, and that he, White, personally participated in all of the transactions which enabled him as endorser to avoid the threatened litigation on the first series.

February 13, 1922.

It ia urged in defendant's brief that it was error of l'aw for the Trial Court to allow the filing of a supplemental petition after judgment rendered on the main petition. There might be some merit in this oontention except for the fact that the record shows that after a re-hearing granted, counsel for defendant accepted service to the amended and supplemented petition four days before same was presented to the Court, and leave granted by the Court for the filing thereof, thus showing acquiescence in the proposed method of procedure.

We find no error in the ruling of the lower Court.

Judgment affirmed.


author: BY: WILLIAM A. BELL, 'JUDGE:

text:
    CHARLES O. ROOME, JR., versus FRANK M. CALLAHAN
    NO. 8201
    COURT OF APPEAL PARISH OF ORLEANS
    7,'IIiIAl.; A. BEI,I, JUDOS:
    May 1st, 1922.

   BY: WILLIAM A. BELL, 'JUDGE:

Elia ia a suit for -damages resulting from a oolliaion of two automobiles. The appeal 13 from a Judgment in 1 favor of plaintiff for the amount prayed for, to wit: $333.75, ■^rejecting defendant's demand in reoonvention, for $219.04.

The judge, a quo, has given no written opinion in support of the judgment, but from a careful examination of the testimony, which is of a most conflicting nature, we are convinced that the Judgment is correct, and should be affirmed.

There is no dispute as to the extent of the damages suffered by plaintiff, whom we find not to have been at fault, and who could not have avoided the accident caused entirely by the negligence of the defendant.

The accident occurred on the Algiers road at mid-night of January 10, 1920, about five miles below Algiers. We find that plaintiff, with three other men, was driving his car up the river towards Algiers, and had just cut into, and straightened up the public road, having come out of the yard, or drive-way of a friend's home, where they had dined and spent the evening. All of them are in absolute aocord as to the moderate speed at which plaintiff's oar was being run, and particularly as to the location of plaintiff's oar just before and after the accident. There can be no doubt that plaintiff at all times kep'-well to the right of the road, and as near to the gutter's-edge on the levee side, going towards Algiers^as he could safely do, and that just before the collision, had brought his car almost, if not entirely, to a full stop in his effort to avoid the accident. The nearness of plaintiff's car to the levee-side of the road,- after the accident, (showing its similar and most probable position just before the accident) is made plain, not only by these four witnesses, but by the one of defendant's only two witnesses, who testifies, in effect, as follows:

"At tifiie of the collision, defendant's oar wa3 on right side of road, about eight inches from gutter: Car ran into us from the side, the back of plaintiff's car'was towards the gutter after the wreck, and front end almost underneath our car."

Two of plaintiff's witnesses corroborate the above fact as to the position of plaintiff's car, by saying that when they got out of the car, after the collision, each of them stepped into the gutter, thus showing how very close plaintiff's car was to the levee-side of the road.

All four of plaintiff's witnesses swear that defendant was going at an exoessive rate of speed, and that his car was first seen about 300 feet away, coming rapidly upon them in the middle of the road, where it still remained at the time of the accident.

Defendant's theory, or explanation of the cause of the accident is found in his testimony, as follows:

"In his (plaintiff's) attempt to drive safely past me, he guided his car towards the center of the road a bit too far, and he nosed into my machine'Just about at the front door, hitting the running board at the rear of the front fender,"

Prom the position of plaintiff's oar after the accident, we cannot accept as true, under conflicting evidence, the defendant's statement as above quoted. It is incredible, as well as contrary to all rules of the road, to assume that plaintiff, in his attempt to safely pass defendant's down-going car,(which four witnesses declare was in the center of’the road), would have steered in the direction of defendant's ear rather than to the far right of -the road, and away from defendant, as required by the traffic ordinance.

The most conflicting part of the evidence is found in the testimony'of each litigant, who swears that he was hugging the gutter's edge of his side of the road. Both parties cannot be right in this statement, else the accident could not have occurred. He are therefore forced to the conclusion, from the evidence above discussed, that plaintiff's car must have been on the extreme right of the road, close -to the levee, and that defendant's car, on the other hand, must have been, where all of plaintiff's witnesses say it was, that is, viell in the middle of the twenty-tvio foot road-way with considerable over-hang into the right-half of the levee-side of the road.

While thus situated, defendant's attempt to return under high speed to his proper side of the road, resulted in his heavy car taking a sudden angular, instead of forward, direction, and brought the middle and left rear portion of his car into collision with the left front and entire left side of plaintiff's car.

Befendant's own witness further testifies that defendant's oar had such headlights as did not conform with the traffic ordinance, in that they were not frosted, sand-blasted or painted, but only chalk-washed. .Plain, clear glass would have been sufficient, it is true, provided the reflectors behind such lights were permanently so fixed in place as to deflect the beam of lights as provided in the ordinance. There is no evidence to show that this requirement was observed, and all of plaintiff’s witnesses have testified that the light from defendant's car was blinding. While the evidence is not convincing that this was another cause contributing to the accident, there ean be no doubt that in this respect defendant also failed to observe the traffic regulations.

Plaintiff has made full proof of the extent of the damage sustained, and has indeed shown that some of the expenses of repairs were secured by him at a lower rate than is ordinarily charged. We are satisfied that the preponderance of evidence is with plaintiff, and that defendant was solely at fault.

JUBGMSBT AEflRMEB

AT BEEBHBAHT'3 COSTS IH BOTH COURTS.

May 1st, 1922.


text:
    CharleB E. Claiborne, “*■•
    LOUISIANA ABSTRACT AND TITLE GUARANTEE CO. vs ROBERT WERK
    No. 8202
    March 13th, 1922.

   LOUISIANA ABSTRACT AND TITLE GUARANTEE CO. VS ROBERT VffiRK, ' Appellant.

No. 6202

CHARLES F. CLAIBORNE, JUDGE.

This isa suit to recover an amount which the defendant promised to pay to the plaintiff fftr issuing a title guarantee bond on his property.

The plaintiff alleged that by a written proposition dated November 10th, 1916, it offered to enter into a contract with the defendant, represented by R. E. E. De ttontzulin, acting as his agent, to issue a title guarantee bond on a tract of land known as the Leland University Tract, belonging to the de- ' fendant subject to certain conditions precedent and requirements fully set forth in said proposition - for the price of $500.00. That on November 13th, 1916, by an additional writing the price was -reduced to $400; that, as thus amended, the proposition was accepted by the defendant in the following words written by him on the bottom of the offer:

"I hereby accept the above proposal.
Signed Robt Wei;k";

petitioner further averred

"that it discharged all of its obligations under the contract made between the plaintiff and the defendant; that the guarantee was in due course issued by petitioner to the defendant, who is in possession thereof but who now refuses to pay petitioner's bill". The défBnse is

lo that the plaintiff had obligated' itself to nay De Uontzulin, defendant's asent, a certain comission ^f’the price to be paid by the defendant for plaintiff's guarantee, which plaintiff cannot recover, as any rebate promised by plaintiff must inure to the benefit of defendant^' *"

2.o That after accepting the proposition on November 13th, 1916 he

"heard nothing more about the matter; no sale was ever made by the said De Montzulin, and he considered the agreement at an end until he received from the plaintiff an alleged Bond or guarantee of title, though dated Hay 2d, 1917, but not delivered to him until November 19th, 1918^ nearly two years after thb agreement was made; that said Bond is now of no use to him as he notified the plaintiff and returned the bond to the plaintiff, and the plaintiff•• having returned it again to him, he herewith files it and tenders it back to the plaintiff". There was judgment for plaintiff and the defendant

has appealed.

Io The evidence is that the plaintiff allowed all real estate dealers a percentage or commission on the business procured by them. But this.is no concern of the defendant. He quotes the elementary Ttule that the agent must credit the principal with whatever profits he receive* in the execution of his mandate. 108 Ills. 39; Succn. of Cordeville, 24 A. 321; Sucon. of Ibos, 144 la. 818: . See also Story in Agency6 207; 2 C. J. 697; l'Domat p 364 5 8; C. u. 1993; 3uch is also the law of Louisiana; C. C. 3005 (2974); 128 La. 399; 22 A. 599; 16 A. 241; 1 A. & E. Enc. Law 1072'. ■

But in all the cases quoted by the defendant the agents were claiming from their principal^ suns of money which they ^ had not paid out, in full, and in which they neglected to credit their principals with rebates■or other reductions allowed to them. If De Montzulin had paid the Guarantee Co. $300 and he.was claiming $400 from the defendant, these authorities would apply, but not otherwise.

Ho It is not denied, that plaintiff fulfilled all its obligations under the contract. The only defense is, that although the bond is dated Kay 2d, 1917 it was tendered to defendant only on November 19th, 1918, eighteen months later. The fact remains that from Kay 1917 the plaintiff had guaranteed defendant's title. If he failed to avail himself of the Bond, or to demand it from the plaintiff, it was his fault and not the plaintiff's.

During the trial of the case and in his brief, the defendant strenusualy urged tliat the plaintiff could not claim from him more than the regular rates for such bonds which, in this case would be $262.50, and that it could not charge for attorney's fees for services rendered in connection with the bond.

The first answer to this contention is that the defendant obligated himself in writing to pay $400. The nest answer.¿is that the regular rates are for the examination of the title and furnishing the bond. But in-tM s-cjise there were many other services rendered to the defendani^and performed by the plaintiff. They consisted in preparing a plan for a new subdivision of the property to be bonded, drafting and securing the passage and adoption by the City Council of Ordinances closing certain streets and dedicating others, drawing up and signing acts of exchange of properties between„thg?City^and the,defendant; in other -words, -preparing titles,translatiy<5 of property

To do these things, plaintiff was put to additional expense of attorney's fees and there is no reason why it could not contract with the defendant to recover then. In doing this^ it did not undertake the "practice of law", as contended by defendant; nor ivere the attorneys employed by it, acting as the attorneys of defendant; they -were the attorneys of the plaintiff employee and paid by it, sm. this extra cost v/as a legitimate addition to nlaintiff'o tariff-rates for sieniin bonds.

Judgment affimed.

I:arch loth, 1922.


author:
      Dinicelspiel; J.
      Willi AK A. BEIL, JUDGE:

text:
      NO. 8205

    COURT OF APPEAL PARISH OF ORLEANS.
    V. S. DANTONI & CO. versus FRANCISCO BERTOLLI & CO.

   Dinicelspiel; J.

This litigation arises under the following facts:

Plaintiff alleges the failure by the defendant to deliver to him according to telegraphic} orders, two hundred gallons of olive oil whioh he purchased at $4.30 a gallon and for which he hod sent e. telegraphic money order as demanded by defendants, for One Hundred Dollars, on account of purchase prioe ánd that on January 31st, 1919, plaintiffs wired defendants! "Please wire lowest price and terms, two hijndred gallons olive oil, .five gallon cans"; and thft on the same day the defendant's wired in response to the telegram:

"Lowest prioe, two hundred gallons olive oil, five gallon cans $4.30 per gallon, f.. o. b. Hew York, payment advanoe one hundred dollars,balance sight dfcaft against bill of lading; wire immediately".

Plaintiffs further 'allege that 'in response to the latter telegram, on January 33nd, the next day, he remitted the one hundred dollars and in a telegraphic message "ship me through Morgan Line, t\jo hundred gallons olive oil; this one hundred dollars confirms your request".

Subsequently on the next day, January 33rd, defendants "»oknowledged receipt of the One Hundred Dollars, account payment of the two hundred gallons cf olive oil ordered by you received, will ship by Morgan Line".

Plaintiffs allege further that relying on the agreement thus oonveyedj he had mads a sale of the oil in .question at $5.50 a gallon, semejo be delivered to purchasers on arrival in Hew Orleans, on January 37th, 1919, as expected under the agreement; thus making profit of $340.00.

And alleging that defendants instead of complying with this agreement, failed so to do.and d^d not ship Vfte order at onoe by the Morgan Line whioh they should and could 'nave don*, delaying shipment of oil to such an extent that the prioe of oil dropped One Dollars a. gallon after the expected time of arrived, of «ata a'óns'igttíüéat Jtó'HaTf Orleans, and they therefore were deprived of an additional profit,because the sale oould not be made at the agreed prioe and lost a dollar a gallon or an additional two hundred dollars.

That the sales made for two hundred gallons of oil were oanoelled by the purchasers on aocount of failure to deliver in time stated and alleging that defendants were not residents of Hew Orleans, but resided in the City of Hew York and having, no property within the jurisdiction of this Court beyond that shipment of oil in question, prayed for a writ of attachment and sequestration, seized under said writs, the property in question and also prayed for a judgment for 1540.00 with interest.

The writs issued, the property in question was seized and subsequently by an agreement between the parties was sold for account of whom it may oonoern, the funds deposited in the hands of the Sheriff, where they are at this time, the defendants filing a prayer for oyer which was oomplied with and subsequently filed an exception of no cause of action, which was by the Cáiurt after hearing, referred to the merits.

Then answering, defendants denied the allegations generally and averred that defendants ore a legal copartnership, domioiled in Hew York City and that plaintiffs were justly and truly indebted unto them in the sum of §760.00, balance, due- for merchandise involved in this esse, admitting they had received the one hundred dollars through telegraphic advices.

They admit the telegraphic request nf plaintiff to sell two hundred gallons of olive oil to them at §4.30 per gallon; they admit they accepted said offer on date set forth January 23nd, 1919.

They allege thst they shipped said two hundred gallons of oil on January 37th and to do so were oompelled to pack the oil in cans and cases in order to put same in deliverable condition; they admit that in accordance with She terms of the oontr^ct -*nd written instructions received from plaintiff they sent b. sight dr'-ft attached to the hill of lading for the price of said oil to the Canal Bank & Trust Company of the City of Hew Orleans and that in due course that draft with hill of lading attached was presented to plaintiffs who refused without cause to pay said draft and therefore wrongfully causing the writs of attachment and sequestration to he issued and subsequently sold hy consent of oew-sel of hoth parties, without pro-judiot, for account of whom it may oonoernj and alleging finally that defendant had faithfully performed all its obligations under said contract and is entitled to judgment for $760.00,. balance due.

We have carefully examined the record in this case, to-gjthsr with all the documents, telegrams, connected with same and we find that plaintiffs did, on Janaury 21st, 1919., wire defendants, asking for their lowest prioe and terms, two hundred g.-lions olive oil, five gallon cans; and on that same day defendants quoted the prioe at $4.30 per gallon f. o. b. Few York, together with a payment of one hundred dollars in advance, balance sight draft against bill of lading.

To this acceptance, also by wire, plaintiffs ordered defendants to ship immediately via Morgan Line, two hundred gallons olive oil and remitted through telegram, one hundred dollars requedted by defendants, pnd in reply to this telegram defendants acknowledged by wire, the reoeipt of one hundred dollars end agreed to ship the oil via Morgan Line.

We find that instead of complying -with plaintiff's request and shipping via Morgen Line, that defendants contended th”t on account of e. strike On that line thit they had shipped via the Pensylv&nia Railroad .and this caused the delay for several weeks in the delivery of the oil, and in the meantime the oil h”d declined sufficiently to cause s, cancellation of the seles made in contemplation of delivery, which could have been made if defendants had carried out the orders reoeived for shipment and shipped in accordance with contract.

The ¿vider.es of th» s-iss cf ths oil in question,and therefor ot-noellr Sion cf the orders/ ' is supported by the testimony of D'r.tcni, Joseph Greco and Joseph S. .!■■. , who were the uur-ch- sers of the oil ^if delivery wr.a made to then -within the ten d'.ys under their respective oontr-'-ots.

The Record presents else the evidence of the Agent cf the Morgen Steamship Lines, giving the d- tes of the 3' iling of the vessels at the time in question, shoving th---t if the shipment had be^n promptly made in acioritnes with orders received, they would h*ve arrived hers in smple time to hove mede the deliveries to the purohassrs end to hove yielded the profit cl-imsd by pleintiff in this cese; and we find further the testimony of this agent proves thet there was no strike of the Morgan Line at the time in question.

In the case Bright vs. The Produce Company, recently decided by this Court, Ho. 8.095. we held:

"Where a vendor fails to deliver the thing he has sold he owes to the purchasers as damages, the difference between the contract price and the market price of the thing on the day delivery should have been made."

And there cited numerous authorities in support of that dootrins.

In the 138th La. p. 138, Robinson vs. Barton, it was held:

"Thera was unquestioned delay in the delivery of seme of the lumber and damages may be recovered from the vendors by the vendee for delay in delivery of the thing sold, according to she circumstances in the case."

As to that -portion of plaintiff's claim for damages depending on what we consider to be spec-air.tive, this portion of the claim must be denied.

C. C. 1934; 137 La. 348; 35 Ann. 533; 47th Ann 648; 11th Ann. 300.

.that by We find in the record/agreement between counsel th-it the merchandise in question was sold at public auction by the Civil Sheriff vho hs-.s in his possession for account of whom it u.c-y oonosrn, the sum of §463.13.

Ths evidence convínoos us th:-t ths Siles male by Canton!, which were subsequently o-uoellecl, «culi heve yielded e. net profit tc him in the sum of §240.00 end in addition thereto the one hundred dollars p"id by plaintiff tc defendí nt prior to the shipment of ths oil, in accor lance with contract, waking the sum of §340.00, v.'hich plaintiffo sfccfat from this record in our.opinion t.re entitled, to recover. The ..refits claimed by pi intiff other /ise arc so soul' tivo and therefore under ths í-uthorities quoted gl-.iniiff o nnot reoovsr.

Fair the r-^sons as.oigned it is ordered, adjudged and ¿screed that there be judgment in £•. Vor of pi: intiff 3, V. S. D.ntoni & Cocpr ny <.iid c,j--inst ths defendant, Francisco Bertclli t. Company,, in the full sum of §340.00, with lisn <nd privilege on the property sequestered c-nd attached in this o. se, costs of c.ppa. 1 to bo p-id by pi..intiffs, costs of lover Court to be p id by the defendants.

-Judgment amended and affirmed-

V.S. DMTOHI & CO versus HiAMCESCO BBRTOLLI & COMPAEY

HO. 8205

COURT OP APPEAL PARISH OP'OKLRAKS

OK REr-HEARIKG

WILLIAM A. BEDI, JUDGE:

Willi AK A. BEIL, JUDGE:

On the 16th of January, 1932; there was judgment rendered herein by this oourt, resulting in a reduction of the ;'uci£rilen^ 0:f tlie court from §640 to §340, interest, etc., in favor of plaintiff, and as thus amended, said judgment was affirmed

Upon re-hearing and after re-examination of the record herein, v.e are of the opinion that our former judgment was erroneous and should be set aside.

This is a suit for damages alleged to have been suffered by plaintiff because of delayed shipment and delivery of 200 gallons of olive oil purchased by plaintiff from defendant in the latter part of January, 1919.

The contract of sale is shov.n by telegrams and letters filed in the record. It appears that on January 21, 1919, V. 3. Bantoni 8■ Company, plaintiff herein, of Hew Orleans, large dealers in olive oils and similar products, wired Eraneesoo Bertolli & Company, of Rev: York City, for lowest prices and terms on two hundred gallons of olive oil in five gallon cans. On the same day, immediate reply was 'made by Bertolli 8: Co., defendants herein, stating- the price for such goods in five gallon cans would be §4.30 per gallon, f.o.b. Hew York, and that advanced payment for §100 should be made and balance paid by sight-draft against bill of lading.

On next day, January 22, 1919, plaintiffs remitted, by 'V'ojtcrn Union Telegraph Company, the one hundred dollars with following telegram:

"Ship immediately via Jlorgan line, tvo hundred gallons olive oil this one hundred doll: rs confirms your request."

Defendant wired plaintiff next day, January 23, 1911, as follows:

"¡Telegraphic remittance of one hundred dollars account payment £00 gallons olive oil ordered by you redeived we will ship by Morgan Sine."

She shipment was made by defendants on January 27, 1919, by rail, and not by water, as stipulated and agreed in the telegrams just quoted. On the day of the shipment the following letter from plaintiffs was received by defendants:

New Orleans, la., Jan. 22, 1919.
F. Bertolli & Co., 15 West Houston St., New York, N.Y.
gentlemen:
Your night letter received. Vfe wired you 100.00 as per your request.
In making us the shipment of 200 gallons olive oil in five gallon cans, please mail draft to Canal Bank & frhst Co. You may ship via Southern Pacific Steamship Company, which is also known as the ¡{organ ¡Line .
Hoping you will make immediate shipment, we are,
Yours truly,
V.8. Bant oni & Co.,
by V. S. Bantoni.

On January 29, 1919, plaintiffs wired defendants :

"please wire if you made shipment and when.”
To v.-hioh, on same day, defendants replied:
"V.'e made shipment Monday, twenty-seventh instant, as per yesterday's letter."

We find that the offer and aooeptanoe of sale was definitely closed on January 22, 1919, with no subsequent alterations or conditions, rime was not of the essence of this contract, no fixed period for delivery being stipulated, and the vendees only stating, in their letter of January 22, (above quoted) that they hoped vendors would make immediate shipment, and also saying, "You may ship" via Southern Tacific, or Morgan line. The testimony of one of the members of the defendant firm explains the natural, and what seems to us, were the usual and necessary delays in withdrawing the oil from cold storage, thawing, canning, packing, and shipping same. There was no negligent or improper delays whatever on the part of defendants, who started the order on its way five days after consummation of the contract, and two days before any inquiry or apparent attempt to put them in default, as shown by plaintiffs' wire of January 29, 1919.

It is true that both plaintiff and defendant agreed on the method of routing the shipment, but defendants' non-compliance with this part of the agreement is not shown to have resulted in any serious damage to the plaintiff nor to have been coupled with any fraud or bad faith on the part of defendants. The rail shipment seems, from the evidence, to have been resorted to by defendants upon mis-iriformation given them by one of their employees as to a strike on Morgan Steamship line, and this information seems to have been the only reason for defendants routing over the railway line on the very same day and on the earliest day upon which the order could have possibly been shipped.

There is nothing before us to show/ that it the date of purchase plaintiffs, in any manner, advised defendants that the order in question was to serve the purpose of re-sales at higher prices to contemplated or established customers, or to fill specific orders previously .seoured. But even had such conditions surrounded this transaction, and had the rail shipment caused delays, tending to the loss or cancellation of the re-sale orders, it would be necessary to plaintiffs' recovery of alleged loss of profits to show that there was no available market to which they could have resorted a3 another and different means of supplying the re-sale orders on terms as favorable as those anticipated at the hands of defendants. If it be shown that the buyer, upon default of the seller to deliver as agreed, or after reasonable delay, could have bought even in a higher market, and failed to do so, he cannot claim damages for loss of profits, especially if the original transaction was not predicated upon contemplated re-sales, and of which the seller was not previously notified before accepting the order.

We find, on more careful re-examination of the record, that plaintiffs had ample opportunity at the point where the order was to be delivered, and at the earliest time upon which it could have reasonably, been delivered, to wit, . Hew Orleans, January 28, 1919, to have purchased olive oil, in' guantity and quality equal to that under the original order.

In-fact, it is'dearly shown from plaintiffs’ own testimony, that such purchases were made by them prior to ..the alleged cancellation of the re-sale orders. We further find that the market was freely opened and that''plaintiffs freely availed themselve's of purchases at $1.00 per gallon less than those made of defendant, and with which they could have easily and immediately met the re-sales shown to‘have been secured at $1,20 advance over the defendants’ price.' In other words, it is plainly shown by the testimony hereinafter quoted, that had plaintiffs never reckoned with defendants it would-still have been possible between January 28th and February 3, the time or period still 'opened to plaintiffs for their alleged re-sale orders, to have profited at the rate of $2.20 per gallon, the market then being at $3.& per gallon as against $5.50 per gallon, the re-sale eontraet price. The testimony of V.S. Dantoni is conclusive upon this point) and is now, upon our reexamination of the record, the impelling fact which influences us to a reversal of our former judgment. On p. 15 of the testimony this witness, a member of the plaintiffs' firm, testifies on cross-examination, as follows:

"Qi- Did you make any effort to buy Olive Oil on the declining market?
A:- Well., you mean previous to this purchase or after?
Q:- On January 28th, when you found out that the market was declining, did you go out and try to buy any after that?
A:- Yes, sir.
Q:- Did you buy any?
A:- $3P30 per gallon.
Q:- How many gallons?
A:- 218 Gallons.
Q:- Did you use any of that in the fulfillment of your contracts?
As- Ifo, sir.
0:- Could you have bought more at that price at the time?
A:- Yes, sir.

We have given careful attention to argument and brief of counsel for plaintiff, as submitted upon the re-hearing of this case,but the above quoted testimony, which we especially noted at the re-hearing, and the effect of which is now stressed, has not been satisfactorily reconciled with plaintiffs' claim for damages sustained, or profits lost.

TJnder the faots of this oase, as well as the law applicable to all similar oommercial transactions, the only damage, following a breach of oontraot, whioh oan be recovered, is that whioh both of the parties to the oontraot, in the absence of fraud or bad faith oould have reasonably oon. templated at the time of the oontraot. Rev. Civ. Code. Art. 1930 - 1934.

Plaintiffs' refusal to accept the shipment upon its arrival in Hew Orleans, on February 11, 1919, or to honor the draft with bill of lading attached, was not justified, when the faots are shown to have been such as plaintiffs' own testimony has here disclosed. The defendant corporation being an absentee, without an agent in the State, the oil in question was seized, upon the filing of plaintiffs' petition, February 21, 1921, writs of attachment and sequestration having been issued. By agreement of counsel for both parties to this suit, the oil was sold by the Civil Sheriff, and the proceeds derived therefrom, in the sum of $469.13 was deposited in the Sheriff's hands to await the final determination of this proceeding.

We find that if any fault existed in this matter, it was that of the plaintiffs, in not availing themselves of the opportunity to protect themselves against any loss due to the delays in the delivery of these goods. Concerning damages recoverable in contracts of sales, we find the above lav/ to be no different from the jurisprudence of our State. In Elliott, on Contracts - Sales. Par. 5108 - Measure of Damages - Difference between contract price and market value, the text reads:

"Where there is an available market, the measure of damages, ordinarily and in the absence of special oiroumstanoes, is the difference between the contract price and the market or current price of the goods at. the time or times that they ought to have been delivered', or if no time was fixed, then at the time of refusal to deliver."

Foot-note:

"As stated in a recent case applying the rule to a contract for sale of grain, the measure or damages for breach by a seller, of a contract for sale of grain to be delivered at a certain place, is the difference betv.-een the contract price and the market price of the same quality of grain at the place of delivery, at the time of the breach, if there was a market price at such time and place, where the buyer purchased same in a reasonable and diligent manner.” Gaunt vs. Ralston, Purina Company, 198 Fed. 60, (U.S.C.C. 8th Circuit.)

In the instant case, the only damages that could have been suffered by the plaintiffs are those which must have arisen at the time that the delivery of the oil was refused. V/e find, from the evidence, that at that titiie, to wit, February 11, 1919, the market price, £3.30, was still very much below the contract price of $4,30 per gallon. Had the defendants been at fault, with the result that the goods failed to reach their destination within a reasonable time, (no time for delivery having been -definitely stipulated), the only damage which could have been sustained would have been the difference between the contract price of $4.30, some other higher market price. Such facts are not shown to have existed in the case before us. - Sutherland on Damages, Vol. £, 4th Ed. Par. 651, p. ££77:

’’Where no time is fixed for delivery, and the delay has not been unreasonable, damages are computed as to the time delivery was refused.”

Par. 653, p. 2897:

”fhe defaulting vendor cannot be charged with more than that price (the market T.tf'ice) because the vendee had a contract for re-sale at a higher price.”

P. ££99:

"Y/here the market price is less than the contract price at the date when the contract requires delivery, the vendee can suffer no actual injury.”

The recovery of that sum of money which measures the difference between the market value of the property at time and place of delivery, and the original contract price of the property/is such a sum as would be recoverable here,had defendants been at fault in failing to deliver at a specified time or in a reasonable time, and had the market price been higher than the contract price, None of these facts have been proven in the instant caco, It is plain that there hu- been no damage suffered and that plaintiffs have no justification in fact or at lav/, in repudiating the contract.

Counsel for plaintiffs stresses in his brief the authorities cite: by the judge of the trial court, and reported in 146 La. 296, Uaroy Lumber Co. vs. Luie-Hodgo Lumber Co., also 146 La. 511, Penick ¿L JPord vs. Lugardc. But those casos are not aplicable to the ease under consi doral j on, for the reason that in the cited cases definite time v.us slipiCvateu for the performance of tie contract, and ior the further reason t) at the parties undertoking to sell and deliver were advised '-o tc the purpose for the goods in cuestión - to be funJshed Tor manufad ure and sale by the purchasers in a manufacturer’s market. In these cases tine was of the essence of the contract, and the vendors in both cases defaulted. In the case before us no definite date of delivery was specified, nor has it been shown in the evidence that time wa3 of the essence such as to justify a rejection of the contract without putting in default. There can be no doubt that plaintiffs at no time specifically placed defendants in default, unless the letter of plaintiffs, written defendants under date of January 22, could be construed as an active placing in default. This letter, in fact, did not reach the defendants until January 27, and was not, in its language, such a letter as could be intended for the purpose of putting in default, nor was it, at the time of its issuance, a time upon v hi oh putting in default would have been justified. It is also a fact that on the day of the receipt of this letter, the shipment went forward. If, by any possibility, it might be argued that there was a passive violation of the contract in that defendants failed to ship by sea as directed, there can be no doubt that in a provision of our Civil Code this passive violation could not have availed the plaintiffs without an active placing in default. R.C.C. 1952 - 1933.

Defendants have pleaded in re-convention, wherein they pray for a judgment representing the balance of the contract price of the goods sold by them to pláintiff, to wit, the sum of {760, one hundred dollars of the original purchase price having been paid by wire as a cash consideration on the day the contract was entered into.

It is contended by counsel for plaintiffs that, notwithstanding the claim jMehSamages sustained, or for profits lost, they are entitled in addition thereto, to a refund of the hundred dollars originally deposited. Such contention would be sound if the contract in question could have been rightly repudiated. Otherwise, recovery of this amount is not possible. It follows that the judgment of the trial court should be reversed, and that the writs of attachment and of sequestration should be dissolved. We find that the demand in re-convention is well founded, and must be recognized.

It is therefore ordered and adjudged and decreed that the previous judgment of this court be set aside; that the original judgment of the trial court be, and the same is hereby reversen and annulled, and that the writs of sequestration and attachment be, and the same are hereby dissolved^

It is farther ordered, adjudged and decreed that the demand in re-convention, of Francesco Bartelli & Co. vs. V. S. Dantoni & Co., in the sum of $760 with the judicial interest from July 1, 1919, be and the same is hereby maintained, and that the Civil Sheriff of the Pariph ofOíjleans be, and he is hereby directed to pay unto theytféíáaZsK^inLn re-convention, the sum of $469.13, the proceeds of the goods herein seized and sold, a gnedjt for said amount to be given to V. S. Dantoni & Co.,<5¿/L-'in re-convention, as against the judgment for which they are hereby cast, in the sum of $760.00 with interest as stipulated.

It is further ordered, adjudged and decreed, that V.S. Dantoni & Co. pay all costs of both courts.

JUDGMENT RE73RSED,MD DEMAND IN HE-C0N7ENTION MAINTAINED. March 13 1992.


text:
    Charles F. Claiborne, Judge.
    BOWIE LUMBER CO., LTD. VS WALTER D. HINES, DIRECTOR GENERAL.
    No. 8206.
    January 16th, 1922.

   BOWIE LUMBER CO., LTD. VS VALTER D. HIKES, DIRECTOR GENERAL

Ho. 8206.

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit against a railroad for having carried a lot of cattle from a tick-free country to a tick-infected spot.

The plaintiffe alleged that in the year 1919 they shipped from Bowie, La., Lafourche Parish, consigned to B. F. Howell, live stock commission merchant, at Hew Orleans, two car-loads of cattle, on the Morgan's La. & T. BRi. & S. Co.; that said cattle were shipped to said Howell who had an immediate sale for said cattle; that the shipment was accompanied by a certificate of the dipping vat inspector that said cattle had been dipped; nevertheless said cattle were unloaded at Algiers and placed in infected pens, necessitating their being retained therein and being dipped and otherwi-ee cared for, before they could be placed upon the market or sold for account of petitioner by said Howell; that by reason thereof

"petitioner has suffered damage in loss of weight of cattle, feeding charges, double dipping charges, and death of one cow, in the sum of $751.53 as follows:
First car:
Loss of weight 2810 lbs. at 9 $ 252.90
Excess - one days feed 103.50
Double dip 8.25
$ 364.65
By credit for excess of price they would have brought on first day 52.67
$ 311.98
, Second car: 439,55
$ 751.53

For answer the defendant admitted the shipment, but denied that the cattle had been shipped from a tick»f.ree country or were accompanied by a proper certificate, or that the cattle weré tick-free.

There was judgment for plaintiff and defendant has appealed.

The case turns upon the question whether the cattle shipped were tick-free, and whether the defendant knew or should have known that they were. The defendant admits that they were delivered into a tick-infected country.

Act 25 of 1917 p 34, provides for the eradication of cattle ticks and the manner of shipping cattle. The interpretation put upon that Act by the authorities charged with its enforcement will be accepted as correct unless clearly shovm to be contrary to law.

Under date of March 28th, 1918, from the "Louisiana State Live Stock Sanitary Board at Baton Rouge, "the following letter of instruction was issued:

"Tick Eradication letter Mo. 4
To all railroads, steamboats, other common carriers, stock yeard officials, and all concerned:
Dear Sir:
"Under provisions of Act 25 of General Assembly of 1917 State-widw tick eradication becomes effective April 1st, 1918 and this regulation, governing the move' ment of cattle within the State, is for your instruction and guidance:
"After April 1st, 1918, cattle may be accepted, when offered for shipment, from the Parishes of East Carroll, Madison, and Tensas without certificates, Movement of cattle within the State from all other Parishes must be accompanied, before they can be permití ed to move, an official form permit blank properly signed by an inspector engaged in tick eradication throughout such parishes in the State showing that such cattle have been regularly dipped twice five to fourteen days apart under supervision of such inspector signing certificates. All cattle offered for shipment after proper certification of two regular dippings, must be loaded in clean and disinfected cars", x x x This regulation to become effective April 1st, 1918.
(Signed) "La. State Live Stock Sanitary Board S. Pegraa Flower Secretary or Executive officer

Section 10 of the Act of 1917 specifically maintains in full force and effect Act 18 of 1916 p 48. We have examined said act and Act 274 of 1908, and we find nothing in the above letter of instructions contrary to them.

We find in the record the following certificate is — sued in connection with the two shipments in this case:

"Louisiana State Live Stock Sanitary Board".
Permit to move animals within the State of Louisiana in accordance with regulations to prevent spread of Splenetic or tick fever".
Permission is hereby granted to Bowie Lumber Co. P.0. Bowie, La., to move the following described animals. 33 Steers and 33 Cows for Beef - 65 heads total - from Bowie, La. to New Orleans - dipped at Bowie, vat, August 12th, 1919.
"Signed" Mersell Pome
Dipping Vat Inspector".

We consider this certificate a substantial compliance with the letter of instructions, and sufficient to inform the defendant that the cattle were tick-free. A witness for the plaintiff testifies that the date of dipping on the certificate represents the time of the last dipping. The cattle were delivered across the river, in the railroad pens, which were ticky l""- or quarantine pens; they should have been delivered to B. F. Howell in the stock yards company, his place of'business, which - are tick-free,-4^ a result of this delivery, the cattle had to undergo the process of dipping a second time, to put them in the same condition they were in when received by the defendant. The defendant is liable for all the' damages caused by this fault.

The first ^element of damage is a shrinkage of 4985 pounds on each.animals, The evidence of the shrinkage, as a fact, is at best uncertain and unsatisfactory. But there is no evidence that it was the necessary natural cause of the delay or of the second dipping. It might have been caused by the difference in scales in Bowie and in New Orleans; or by the conditions of the animals in the pens, pending their sale. There is no evidence of how much the animals weisáied when they arrived in New Orleans.

The next item is the death of one cow estimated at 600 pounds. There is no evidence that it died of tick fever. There is evidence that "some of these cows showed terrible bruises"; which might have been caused by the unavoidable dangers transportation.

The third item is the cost of feed from the day the cattle were received to the day they were sold:

For the 33 Steers $ 103.50
» “ 34 " 133.00
and double dipping of 67 animals ® 25/ 16.75
Total $ 253.25

V/e think the plaintiffs are entitled to them.

It is therefore ordered that the judgment herein be amended and reduced from Seven Hundred and Fifty-one 53/100 Dollars to Two Hundred and Fifty-three 25/100 Dollars, and as thus amended that it be affirmed, the costs of appeal to be paid by the plaintiffs and the costs of the District Court to be paid by the defendants.

Judgment amended and reduced and affirmed.

January 16th, 1922.

April 10, 1922.

BOWIE LUBBER 00., LTD., versus WALKER D.HIRES, DIRECTOR GEH'L

HO. 8,206

COURT OP APPEAL PARISH OP ORLEAHS

OH REHEARIHS

The application of defendant herein for re-hearing having been granted, and the Court after argument on re-hearing, having found no reasons for departing from its former judgment:

It is ordered that the judgment of thi3 Court herein rendered on the 16th day of January, 1922, be, and the same hereby is reinstated as the final judgment of the Court.


author: Dlnkelapiel} J.

text:
    NO. 8211
    COURT OF APPEAL PARISH OF ORLEANS.
    LOUIS J. BRIGHT versus MUTUAL COFFEE COMPANY.

   Dlnkelapiel} J.

This suit Is an action for damages for breach of contract, claiming damages in the sum of $358,31,

Quoting from plaintiff’s brief, page 3: "Plaintiff claims the amount in question for a loss upon a resale of two hundred bags of ooffee which plaintiff contracted to sell to defendant. It appears that prior to the shipment of this ooffee from Hew Orleans to Montgomery, the defendant undertook to canoel this contract and the plaintiff after notifying the defendant that he refused to acquiesce in this cancellation, resold the ooffee for defendant's account and aooordingly suffered the loss claimed by this suit.

The contract speoifisd shipment of October 1st (1919) but the ooffee was Just about to be shipped on Ootober 13th, when defendant undertook to oanoel the contract.8

The answer, quoting from defendant's brief at page 5, "admitted the making of a contract but averred that on October 2nd, 1919, one Taylor McClellan, of O. P. Holland & Company, the brokers, who had made the sales oalled on it for shipping instructions and that defendant requested shipments made on the following Tuesday, Ootober 7th. It admitted that Instead of shipping the ooffee purchased by it In accordance with the contraot, plaintiff delayed shipment until Ootober 8th, but denied this delay was in accordance with its request. Defendant admitted that on Ootober 13th, 1919, it wrote plaintiff oanoelllng the contract but darofec denies that said cancellation was made without any notice or demand to ship ooffee, averring that said notice had been given to plaintiff through said brokers! admitted that thereafter plaintiff oalled on to oomply with the contract, refused to do so. Admitted that plaintiff notified it that he would proceed to sell said ooffee but denied that plaintiff was entitled to sell said ooffee for its account. Defendant further averred that when Mr. MoClallan oalled on Ootober 3nd, 1919 and asked for shipping instructions, it requested that the ooffee be shipped on the following Tuesday, October 7th, Tte.-fc aot hearing ízoa either plaintiff or Holland * Company, Brokers, by tho lltb of Ootober» and not knowing whether plaintiff intended to ship acid coffee, if wa» forced to order coffee elesohoro and oa tho 13th, still not hearing fron either plaintiff or oaid brokers, it oanoclled the contract, *>

Wa have ttoao quoted from both plaintiff*9 and defondfiat’o brief» in order that there can be' no difiér-enos oo-far as the faots are concerned in reference to the final decision of this oase on ita merits.

We haws ear.-r’ ".lly araalnad and oonaidered all tho evidence, together with telegrams, letters and exhibits filed in this reoord and tho question to be determined from the feote ie whether or not defendant violated its oontraet and whether under the eiraumatanees it waa necessary to piaos plaintiff In default,

Tho Judge aqua who hao given hie opinion of the faots in this case in extenso and In writing has found the following facts, in which, in every particular we concur!

’The contract is for a shipment of two hundred bago of coffee on October 1st, It was tho duty of the seller to have delivered this coffee to the common carrier, having the most direct and cheapest route to Montgomery, Alabama, Tho evidence shows, however, that it is n usual and customary, I Imagine as a matter of courtesy to the purchaser, to inqnlre from him within a reasonable time, if he has any preferenoe for any route or common carrier, and to aooede to his desires in that respect. It is plain from the evidence that at the time of making the contract, and thereafter, tho purchaser had no ohoice of ronte and relied on his oontraotor, believing that he would receive the coffee in due oourse by oomaon carrier, after the first of October, The seller delayed oommunioating as to choioe of routes, until September 30th, on which day he wrote to the broker, who had negotiated the sale, asking the broker, who no longer had any oonneotion with the transantion, to wire him shipping instructions. This oommunioatlon should have been sent two or three days previous to September 30th, to say the least, and should have been addressed to the purchaser. Holland & Company, through one of its employees or members of the firm, Taylor McClellan, went to the purchaser on October 3nd, and informed the purchaser that Holland & Company had reoelved a letter from the seller asking for shipping instructions. The evidence convinces ms that this was the first that the purchaser knew of the faot that the goods had not been shipped on October 1st, the due date tinder the contract. The purchaser then and there had the right to cancel, but Instead of cancel-ling, he informed McClellan that if the goods had not already been shipped, that immediate shipment thereof would be Inconvenient then, giving the reasons why it would be lnoonvenient, and stating if the ooffee had not been shipped on the first, then, that it would be better, end they would prefer that it be not shipped until the 6th or 3th, According to the testimony of ■hitfield, the further statement was made that it must be shipped by that time, otherwise he would be out of ooffee and have no supply on hand for his customers. McClellan undertook to oonvey thlw message to Holland A Coop oar and either garbled it, or Holland & Company misunderstood the message correctly delivered, for Holland & Company wrote the seller that the purchaser had no ohoioe of route but desired the goods to be shipped after the 8th. Ae It was the duty of the seller to oonmunicate directly with the buyer, but he saw fit, instead of so doing, to aommunioate with a third person, who had lost all oonneetion with the transaction, and thereby made thie third person his agent both to oon-rsny the message and bring book the reply. If the goode had been shipped on the 9th, even under the erroneous letter, they would hare reached the purohaeer In time, but/ftitextt ware not shipped, and on the 13th had not reached the purchaser, in Montgomery, and they were then, according to instructions, the seller had given, from seven to eight days behind time, and the purchaser oancelled. In the meantime, the prloe cf coffee had gone down and the loss had then accrued, and had to be borne either by the seller, or by the purchaser. The seller Ind iM it within his power, by being vigilant, to carry out hie contract oooordlng to its tenor, and to h-ve thrown this loss on the purchaser. ®He was not vigilant. He did not Bhip the goods at the time he had the right to ship them, and as he slept on his rights, he gave, in my opinion, legal cause for the purchaser to cancel the order. The purchaser availed himself of this rifht, and threw the loss upon the seller. In my opinion, he was acting within his right. The goods not being shipped either on the 6th or 7th, whioh was an extension granted after default originally, the seller must stand the consequence.

There will be judgment in favor of the defendant.®

Under the facts the next question is What law is appllo&ble, particularly as we oonsider that the only pint point really at issue in the case is whether or not there was 3uoh a waiver of the delay in shipment as would bar the defendant from oanoelling the contract, as he did, without first putting plaintiff in default.

It has been held by our Supreme Court:

"The Code it la true says that putting in default is a prerequisite to the recovery of damages, and of profits and faults or to the reoiasion of the oontraotJ C. 0, 1906; hut this rule ia modified by the provisions of a subsequent Article, in oases of active violation of oon-traot. The oreditor is under no obligation to put th« debtor in default, in order to entitle him to his aotion. C. C. 1926.*
Hillard vs. Farley, 15 Ann. p, 519,
Also see 119 ta. p. 793 et seq. Hennings-Heywood Oil Syndicate vs. Houssiere-tatreille Oil Co.
«C. 0. Art. 1913, asaking, putting in default» jiiaopi prerequisite to reoission of tne contract, applies only to contrasts whereof time is not of the essence.*

Putting in default before reoission of the oontraot as required by Civil Oode Art. 1913 is not necessary in suits for reoission or for fraud or error or for lesion beyond moiety., or for any other cause of nullity.»

139th La. 378, Watson vs. Feibel.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgnent of the Gourt aqua be and the same is hereby affirmed, ooats of both Courts to be paid by plaintiff.

-Judgment afflrmed-

Olaibeene; J. not haying heard the argument takes no nnrt.


author: BY: WI1SIAM A.. BERB, JUDCE:

text:
    WILL WASHINGTON versus J. D. O'KEEFE, RECEIVER OF N.O. RY. & LIGHT CO., ET AL.
    NO. 8213 - 8242
    COURT OF APPEAL PARISH OF ORLEANS CONSOLIDATED
    YÍILLIAH A. BELL, JUDGE:

   BY: WI1SIAM A.. BERB, JUDCE:

51» plaintiff herein -sues -the Receiver of the Hew Orleans Railway &¡ light Company, and Mr. H. Jdokson, as •oo-defendants* praying for judgment in solido in the sum of $1,625.00, as damages alleged to. have been suffered from an aooldent to plaintiff on October 31, 1919,. about 7:30 a.m., while he was a passenger on a Dauphins Street oar operated by the Company. The aooldent ooourred at the first down-going intersection or curve of Horth Rampart Street and Jordan Ave. At this point an auto-truck belonging to M.H., Jaokson, and the Company's oar collided,-causing the plaintiff-, (a oolored man) to be suddenly thrown against the comptroller box on the conductor's platform, and breaking one of his left ribs near its juncture with the backbone - contributory negligence on the part of both defendants is oharged. There was judgment without jury - for $1,250 only, against M, H. Jaokson, and dismissing plaintiff's claim against the Company. Jaokson appeals under record No. 8213 and plaintiff appeals, praying for Judgment in solido against both' defendants, under reoord Ho. 8242 of this Court, Both appeals on motion, have been consolidated.

There is considerable conflict of evidence as to the circumstances of the aooldent ana as whether one or both of the defendants were at fault. Neither defendant charges the plaintiff with negligence, but Jaokson defends on the ground that the Company was wholly liable for the accident. Plaintiff argues before this Court that the Company is specially liable and has contributed to the proximate cause of the accident because of its failure to observe the duty imposed upon it, at law, to furnish plaintiff with a seat in the car upon which he was a passenger at the time of the accident,' The evidence is conclusive that the oar was over-orowded with laborers and other passengers, some on the front, and many on the rear platforms, and all seats both for oolored and white passengers, occupied. Ilaintiff was most probably standing on the only space he could find on the oar. It therefore remains for this court to determine, not only whether one or both of the defendants are liable for the aooident, but whether the Company, irrespective of any other faults, was specially negligent under the law in failing to furnish this passenger with a seat, which under the circumstances would have enabled plaintiff to escape injury, none of the seated passengers having been hurt.

Considering first the law question just stated, we find from the jurisprudence of this and other states, that plaintiff's contention is not supported by authority. In city railway traffic, especially, there is no reasoning which justifies the doctrine contended for by plaintiff. It is a fact of which all courts will take cognizance that rapid and efficient transportation in modern-day, city traffio involves almost necessary and unusual crowding of passenger oars at "peak-hours." It is a condition to which both the public service corporation as well as its patrons, lends common, consent, and in the ab3enoe of franchise or legal prohibition, one who accepts the condition oannot be heard, when injured, to urge it as a contributory act of negligence on the part of the company. The only exceptions which would justify the non-application of this estoppel - if it may be so called - would be the added protff that incompetent service or defective equipment, chargeable to the Corporation, rendered the accepted crowded condition one whish a prudent, and even indulgent passenger, could not be expected to assume. We approve of this doctrine which has been frequently annunciated by the Supreme Court of this State, but which is particularly well expressed by the highest court of Tennessee, as follows:

"Street oars are run for the accommodation of the public, as well as profit to the company, and the Courts oannot say that the fact that the Company permits .a large number of passengers to occupy the car, sufficient to load it heavily, is an act of negligence. To so hold would work very great inconvenience to the travelling public and impair the efficiency of the oar sefvice.
"One of ti» renulrenents of modern pity life is rapid transit; and the public has demanded that-the street oars, at certain hours of the day, be loaded to their utmost capacity. It is doubtful if the company could refuse to receive a passenger upon its oar as long as there was room in the car for him. A tender to the company of the requisite fare and the ability of the passenger to find a place of safety upon the car would impose an obligation upon the company to receive and transport the passenger.”
De Glopper v. Nashville Railway & Light Co. 33 L.R.A. (N.S.) 917. See also:
Viator v. New Orleans Railway & Light Co. 139 La. 439; Landix v. New Orleans Railway & Light Co. 140 La. 529; Olivier v. L.& N.Rd.Co., 43 La. An. 804.

Counsel for.plaintiff oites with oonfidenoe the ruling made in Basey et als vs. La. Ry. C. N. Co., 137 La. 457, also Thompson vs. New Orleans Railway & Light Company, 145 La.806.

The judgment in the Basey case was for defendant, reversing the ruling of the lower court. The most oareful reading of this authority cannot lead us to the plaintiff's conclusions taken from the excerpt of this opinion, as cited in his brief. The facts in that case show the plaintiff to have been a passenger on a crowded railroad train, heavily loaded with passengers, who were induc.ed- to ride upon a particular train extensively advertised by the company for a special excursion or gala occasion, thus creating oondltions which should have been previously and carefully provided for by ample accommodations . The oar in which Basey was injured could not/under any conditions have been deemed safe, being a gondola car, not used under even ordinary or usual customary travel, and the jolting of the oar which was the direct cause of the injury was one over whioh the oonqpany was found to have had no control. The theory of the company's possible liability for crowded oars, as discussed by the court in that case, is shown to have been at best, nought but obiter, and oannot be applied to the case now under consideration.

The Thompson case resulted in recovery, for the plaintiff, but under conditions in no manner similar to the facts before us. By a divided court, two justices dissenting, it was Reid that the unknown oauses of a Jolt, resulting in injury to a passenger was to be presumed the fault of the company, although the physical condition of the plaintiff, prior and subsequent to the accident, (like the plaintiff's condition in the Basey case) could have easily been considered as the direot cause of death.

February 13, 1922

In the case before us there is no room for the application of the doctrine of the last clear chance, unless it be applied to the defendant, Jackson, who attempts here, to apply it in turn, to the Company. We think the evidence shows clearly that at the moment of the collision of the truck with ,*A-the car that the operator of the truck had all, as well^the latest,clearest chance to avoid the accident. Ihere is nothing to disprove the statement of the motorman, corroborated by a disinterested passenger, also on the front platform - that the frofct of the car was taking its parallel with the Jordan Ave. track and was moving slowly in the curve (thus tending at every second to better conditions) when the truck, whose driver could have better seen the end of the oar, continued to move up Jordan Ave. nearer to the danger point.

While some of the witnesses are at variance as to the speed, the positions and possibilities of control concerning both the truck and the car, we can see no patent error in the findings of the trial Judge, who heard and saw the witnesses , and who doubtlessly has given most careful weight to all the evidenoe adduced.

JUDGMEfTT AFFIRMED.