author: CHARLES F. CLAIBORNE, JUDffi.

text:
    Charlea F. Claiborne, Judge.
    STATE ASSURANCE CO & al vs E. F. BROWN, Appellant.
    No. 8303
    March 27th, 1922.

   STATS ASSURANCE CO. & al ¶3 E. F. BACON, Appellant.

No. 8303

CHARLES F. CLAIBORNE, JUDffi.

Plaintiff sued the defendnat for damages for running into his automobile and damaging it to the extent of $281.20.

_ Defendant denied all the alle^itions of the petition except the collision.

Plaintiff annex® to his petitionjmjpepiz®_acjgunt of the damage done, according to a biHf jiaid by the plaintiff to an automobile repairer. On the trial of the case the plaintiff offered this bill in evidence. To which offer the defendant objected

"unless the itarns stated thereon are proven by competent witnesses".

The Court ruled that the objection should go to the "effect" and not to the "admissibility" of the bill.

The only other Evidence concerning the damage to the car is the testimony of the plaintiff himself who says:

Q. "I present you with a bill; do you know sufficient about an automobile to testify as to repairs to an automobile?
A. Yes, sir.
Q. I hand you a bill of Jordan-Ladner Co. which specifies certain repairs, and as an automobile man I ask you if the charges on this bill are correct?
Mr. Hamlin (attorney fpr defendant) I object, until it is testified to by the man who did the repairs. The Court. You will have to bring the man here who made the repairs. This is secondary evidence. The objection is sustained. •

The hill sued on is composed of some dozen items, commencing with rgpaint car $65.

The only evidence that defendant injured plaintiff's car is the following:

Q. What was the position of the two cars at the time or just after the collision?
A. Mr. Bacon's oar turned over after he struck my car, and after it hit my car it turned over & c x x I asked him why did he run into me, and he said he must have gone to sleep, his glasses fell off*.

There is absolutely no other evidence that defendant, run into the plaintiff, or that he caused any damage to his automobile, unless we assume that the bill represents the amount and value of the damage done. Of course, we cannot do spanless there is, some pro of .¿to that effect.

áféhdant would be entitledtoji^dismissal of the suit as in case of nonsuit. But as the edns of justice would not be subserved by such a ruling we prefer to exercise the discretion vested in us by Article C. P. 906 and to remand the case.l fi. D. p 94 (c); 138 La. 829j 123 La. 515; 108 La. 285; 107 La. 416; 104 La. 114; 52 A. 1719; 42 A. 860; 43 A. 874; 51 A. 618; 548 (561); 49 A. 1345; 4 Ct. App. 309. Underjthe strict rules of •practice th<

It is therefore ordered that the judgnent herein be set aside and reversed; and that this case be remanded for a new trial; costs of appeal to be paid by plaintiff and appellee and costs of the District Court to await the final judgnent herein.

March 27th, 1922.


source: Caselaw Access Project

author: BY; '.iflEDIili A. B3DD, JUBC-R:

license: Public Domain

text:
    ROBERT J. NOLAN versus PELICAN COLD STORAGE & WAREHOUSING CO., LTD.
    NO. 8307
    COURT OF APPEAL PARISH OF ORLEANS
    -WIIBIAMA. BEBB, JUDGE-
    June 19th, 1922.

   BY; '.iflEDIili A. B3DD, JUBC-R:

plaintiff sues defendant for the value of a certain quantity of egg yolks alleged to have teen deposited /with defendant, doing business in this Oity as a cold storage and v/arehouse company. Ehe petition sets forth that under a verbal agreement the eggs were deposited with the defendant during the months of ITovember and December of 1919, by Swift & Company, for account of plaintiff; that on the dates of deposit the eggs ware in good condition and frozen; that between Eovember 11th, 1919, and December 20th, 1919, plaintiff withdrew on different dates twenty-seven cases of frozen egg yolks, all of which wore in good condition and frozen, and had been properly kept by defendant; that on January 15th, 1920, plaintiff started to withdraw the remainder of the deposit, cut that same was ir> bad condition, unfrozen, unfit for use, and absolutely worthless, all due to the fault of defendant in not keeping them properly. Claiming the value of the spoiled eggs to be ?':801.90 at the time of deposit,-the petition concludes with prayer for judgment in said amount, and legal interest from judicial demand.

Defendant answers that plaintiff is without rifht of action, and in the same pleading resp/onds to .the merits by denying its liability, though admitting that the deposits as alleged, were made, not verbally, 'out under a written contract specially pleaded and made part of the answer, and further responding, it denies that the eggs vere frozen on the dates of deposit, inasmuch as there was no examination Dade of the eggs at'the time of delivery or deposit with defendant. It is also denied by respondent that at the time of the withdrawals that the eggs were in good condition and frozen, respondent again 3tating that it was not apprized of the oondition of the eggs at the time of their said withdrawal,-but it specifically alleges ’that all of the deposit while same existed, was properly kept by defendant. It is then specially denied that the bad condition of the withdrawals and their worthlessness was caused by its fault b0i_not keeping them properly.

Appeal has been taken to this court from a judgment of non-suit dismissing plaintiff's demand.

There has been very little evidence offered m this case, and all of the testimony taken at the trial in the lower court was that offered by plaintiff himself and by a witness whom he called and who was in the employ of svdft & Company, plaintiff's agent of deposit. Plaintiff'3 testimony is to the effect that he himself did not make the deposit in question, that it Tías made through Swift & Company as agent, and that he was not present at the time of the deposit, and could not, of his own knowledge, testify as to the condition of the egg yolks at that time. He does swear, however, that on the -occasion of all the withdrawals except the last, between the dates aforementioned, that the eggs were all in good condition and frozen, but that on lebruary 2nd, 1921, the date of the last withdrawal, that said eggs were thawed out and in bad condition.

He admits having discovered this condition upon visiting the oold storage room where the eggs were kept, but he does not testify, nor does anyone else, as to the temperature of the warehouse, either at the time of the deliveries or of the withdrawals.

It appears from his testimony that the eggs in question were bought by Swift & Company, who were directed by plaintiff to store same with the defendant company, and that when they were bought from Swift & Company that plaintiff did not examine them, nor did Swift & Company, his agent. At the time of the examination of the eggs claimed in this suit to have been spoiled, it appears that there was present with plaintiff a young boy in the employ of the defendant company, who plaintiff .has not seen fit to summon, or to shov/ that this young man, the only witness present at the time of the examination of the re-jeoted eggs, knew either the condition of the eggs or the temperature of the warehouse. Upon cross-examination plaintiff admits that he rejected other eggs on or about the time that the eggs in question were rejected, and that these other eggs were subsequently taken by the firm of J.l. Beer & Company, and plaintiff admits that these eggs taken by Beer & Company and stored in defendant's warehouse by Goodman & Beer, though rejected by plaintiff,were not so rejected because of the same not being frozen, but on the contrary, that they were frozen, he refusing to take them because the whites of the eggs were no good. He admits, however, that tnese same rejected eggs were in fact accepted by Goodman & Beer, and that they were undoubtedly frozen. He also admits that he never did business with any other house than the defendant company, and that in all previous transactions the'eggs deposited were always kept in pood condition.

Correspondence between the defendant company and plaintiff has been offered and received in evidence, and consists of two letters, bearing date long subsequent to the institution of this suit. This proceeding was filed on ICovca-ber 26th, 1920, and on the respective dates of Karoh 7th, 1921, and February 24th, 1921, the defendant wrote letters quite similar in their wording, and both to the effect that the eggs in storage for plaintiff's account, and which had been there for some time, had deteriorated, and the defendant feared that if kept there any longer they would have a bad effect on other articles in the warehouse, and that therefore, it was absolutely necessary that plaintiff should advise the company at once as to the disposition he wished to have made of them, as same would have to be removed from storage.

However, there is not a scintilla of evidence in the record to show that the condition of the eggs at the time of their attempted withdrawal and final rejection by plaintiff, was spoiled cláo^o any fault of the cold storage warehouse company, or that the said defendant had in any manner failed to oomply with any of the conditions of what the record shows was not a verbal, bat in fact, a 7/ritten agreement, or cold storage warehouse contract, there being no proof in the record that between the.times of the several deliveries for storage and the several withdrawals and final rejection, that defendant was ever-at fault in his contract, or that the eggs as deposited were in good condition at the tine of the deposits, or- in bad condition at the time of any of the withdrawals or of the rejection, and these facts, if possible of proof, being a burden which the law imposes Specifically upon the plaintiff, it follows that plaintiff has not made out a case against the defendant, and that he was properly non-suited.

Had the evidence established at the outset that the eggs at tho time of delivery were all in good condition, and that the total delivery, or any part thereof, at time of withdrawal, were in bad condition through some fault of the defendant , the burden would have shifted to the defendant,under the law/to overcome the presumption that it was at any time at fault under its oontraot.

Plaintiff's suit predicated upon allegations of a verbal oontraot, shown never to have existed, could have been dismissed upon the exceptions herein filed, but, defendant electing to set-up in its answer a written oontraot, has forced the plaintiff to reoord-admission of said written agreement, under this situation plaintiff made unsuccessful objections to the offer of the written document, urging, a® he has again done before this court in argument and brief, that the instrument in question is null and void, Che document, that is clause ”3” thereof, olaimed by plaintiff to.be a nullity under the law^ and jurisprudence of Louisiana, reads as follows:

"11 IS EURIHER AGREED that this Company-does not in any manner guarantee the preservation of property stored or the maintenance of temperature where stored, unless a special contract in writing be made'identified with this receipt and noted hereon, in which case goods will be inspected and examined at the cost of the atorer, and the goods then stored at contract temperattoe and preservation guaranteed, provided that in case of accidents or fortuitous events, as stated in paragraph 2, that said Company shall have like right to terminate the contract, and all claims or reclamations for damages or otherwise, shall be made by said storer within 24 hours after the repossession of goods.
And the Company further reserves the right to refuse to enter into such special contracts, either for goods stored or otherwise."

Seo. 3 - part X of Act 221 of 1908 provides:

"Porm of Receipts - What Terms Kay Be Inserted: A warehouseman may insert ' in a receipt issued by him any other terms and conditions, provided that such terns and conditions shall not -
(a) Be contrary to the provisions of this Act;
(b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own."

It is argued by counsel for plaintiff that the above provision of the law governing warehouse receipts, defining warehousemen and fixing their qualifications and duties, etc., is an express prohiDition against the insertion of such a clause as clause "3" above quoted. In support of this contention, we are referred particularly to the case of llarx at al v. Hew Orleans Cold storage Company, 107 la. 172.

Before discussing the cited authority which we have had repeated occasion to examine, we would observe that v/9 find nothing in the language of clause "3" of the contract which could be said to fall within the prohibitions of Sec. 3 of Act 221 of 1908, This Section of the Act should be read and construed with 3ec. 21 of the same Act which provides:

PART II.

OBLIGATIONS AHP RIGHTS 0? hARBHOJSEKBIT UPON TEKCR RECEIPTS.

3eotloa 21. - liability for Care of Goods.

"A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exeroise such care in regard to them as a reasonably careful owner of similar goods would exeroise, bui, he shall not be liable, in the absence of an agreement to the contrary/for any loss or injury to the goods which could not have been avoided by the exercise of such care."

Most careful analysis of the opinion in M&rx et al v. H.O. Gold Storage Company does not bring us in aocoru with plaintiff's contention that the Supreme Court has he.'" that such olauses as either Clause "3" nor/ under consideration, or the somewhat similar clause "or heading"-found in the contract then under the court's review, are contractual provisions, oontra boryjfmores, and therefore prohibitory. We have no such understanding of either the statute or Jurisprudence. She above decision of the. Supreme Court though rendered long prior to Act 221 of 1908, naa not. in our opinion, been qualified by the provisions of the later statute. The opinion of the Court was based not upon conclusions of law that the contract in question was unlawful, and therefore null and void, but upon the facts found by the Court that the defendant, the H.O. Cold Storage Company, haá received, to its own knowledge, a greater quantity of peas than it could safely admit at one time into its cold storage. On this point the Court said;

"We can explain the deterioration of the peas in no other way than by assuming that the superintendent was not cautious enough and did "endanger" the temperature of his cold storage by letting in the peas too fast, or in too great quantities."

It was al30 noted by the Court that the defendant in that case had been sued on its general liability as a cold storer and had answered by a general denial not pleading, as in the case now before us, any special contract, proceeding then to a discussion of the limited liability clause found in the defendant's printed warehouse receipt and which plaintiff in the instant case claims to be similar to the contract now before us, the oourt ventured the opinion that if such a clause liad been specially pleaded it viould not have relieved the cold storer from its obligations to preserve the goods in the condition in which they were received. It cannot be said that beoause of the court's declaration that it is the duty of a cold storer "to poreserve the goods in the condition in winch they were received" that tin clause then under consideration was null and void and not enforceable betveen the parties. Upon re-hearing, the Oourt in its opinion adhered to its former ruling, except as to certain allowances for storage fees, and poroeeeded to say:

"Our decision found that the heaps of peas were too large, ahd that the defendant did not sufficiently look after the ventilation of the cold air it controls. After a re-examination, we are not satisfied that an error has been committed. Defendant places great reliance upon the receipt it gave for the peas and the limited liability clause printed therein. He understand that the defendant can limit its liability, and that those who sign the limited clause will be bound by its terras. But in this case oversight and negligence have been found, which are not covered by the limited liability clause of the receipat, and-from which v*e do not understand from the testimony, that it ever w;a3 the intention to relieve the defendant. Certainly the language usod leads to such inference.
One may stipulate waiver-as extensive as he pleases, provided it does not contravene rules and laws enacted on grounds of publio policy» Ihe waiver must express the full extent intended."

In the ease before us clause "1" of the contract reads as follov/s:

"1 - It is agreed between the parties hereto that said. Company has not incpjected nor examined the condition of tbs goods below described,is not bound by the contents marked, nor for damages already sustained."

plaintiff in this cause has failed to assume the burden of proof which is entirely his, by not showing conclusively that the egg yolks when deposited were in good condition, or that the defendant failed by insufficient temperature or other wise to preserve the goods in the condition in vhieh they were received.

It is therefore ordered, adjudged and decrees., that the judgment appealed from be and tte same hereby is affirmed at plainxi'ff's cost in both courts.

JÜD&iaag ¿fffflRIEh.

June 19th, 1922


author: Dinkalspiel; J.

text:
    NO. 8311
    COURT OF APPEAL PARISH OF ORLEANS
    ANTHONY HOOK versus JACOB CUSIMANO

   Dinkalspiel; J.

.The issues presented in this ease., which was transferred to this Court by the Supreme Court of the State, art* as made in the following statement of the Supreme Court:

"Plaintiff sued defendant, his employer, on a oon-trsot of employment, for the sum of $3598,99, being commissions on net profits of the business of his employer during r.*e year 1914. Defendant answefed denying all liability. There was judgment in favor of plaintifi for $974.93 with intereetj and defendett has appealed.

Before the trial or the oa.se, defendant applied to the Court for the appointment of an expert accountant to examine his books end make report thereon, which report was duly filed. Plaintiff did not take the witness stand on his own behalf; and, after having examined the expert as his witness, he submitted the oa.oe by announcing that he "offers in evldenoe the oontract of empxoyment; the report of the special auditor appointed by the oourt; and the articulations of plaintiff's petition; and rests". And the report showed the amount due plaintiff was $974.93. He did not offer any further eviaenoe; and the district oourt wa.s without authority to render a judgment for a sum in ex-oess of that amutmo.

Subsequently, plaintiff wt3 put on the witness stand and examin-id as if under cross-examination, and he willingly admitted that wha.t the expert had said about the books kept by him as defnndant's book-keeper we.e absolutely oorreot. And defendant, during the trial of the cause, said: ".I offer in evidence the report of iir. George St. Paul, as ohenged and emended by him, ¡.larch 36, 1918, Showing the amount of $974.93 as being the amount due plaintiff herein," And there we judgment as before Bta'ted for that emeunt in favor of pit intlff.

lilis oase 'present voluminous statements from the testimony of the experts, George St. Paul and Guy V. W. Lyman, both of whom are expert aooountants and who testified in so far as the amount found by both Messrs. St. Paul s.nd Lyman, thrt same was oorreot, as the amount due ky plaintiff if anything under hiB contract with defendant, so mat to go over the testimony of these two witnesses would be useless end would tend to no goud purpose, sa.ve ana except as reaching the oonolusion, tnese gen-exhaustive tlemen reached as experts in e.n/gs&gxxxKSKX examination of the books of the defendant, and we shell not rurther allude to their testimony, but ascertain from the evidenoe of the other witnesses whether the amount claimed by plaintiff in this case found to be due by the experts named is or not oorreot.

it is contended by the defendant that in connection with the salaries paid his sons, Ben and Jacob Cusima.no, together with the salaries paid to others in the employ of defendant, there was or was not bonuses given by the defendant to his son and other employees, which if psid would detract from the amount due plaintiff in this os.se.

An examination of the wttnasxs witness James Cusimano shows th-’t he is one of the sons of the defendant tnd th>t in the report made to the Court by Mbs St. Psul hsxix there is b statement entitled "James Cusimeno $1800.00.

A. Will you state whct that w»s for? A. Yes, sir, that was .compensation to me for my services to the firm.
BY TEE COURT: Q. You mean th"t was ycur sel'-ry or wt s o. gratuity?
A. Ho, Salery.
Q. Your regular salary? A. Yes sir.

On croes examination.

Q. How were you paid this extra compensation of $1800.00 in cash or by check?. A. I w-s paid this in cash.
Q. At one one time' and in a lump sum? A. Ho sir, I w c paid that-that is, at one time I got-borrowed fifteen hundred dollars from my father when I me married,
Q. ííhen were you married? A. In March 1914.
Q. You borrowed Fifteen Hundred Doll' rs from yc-ur father?
A. Yes, sir.
0, How did he give It to you by check or by oesh? A, Cash.
Q. Prom what bunks did he drew It? A. I don't know.
O. Vihet bank did he deposit in at that time? Whet date was thftj and before you cnswer that .yuestion, when were you married? A. Llaroh 19th, 1914.
0. And your father gave you fifteen hundred doliere in cash on whet day? A. A couple of days before getting msrried.
Q. You don't know from wh‘t bank he drew that money? A. Ho, air. He just gave me the cash.
0. Who w*"? the book-keeper • t that time for your father?
A. Hr. Hook.
0. Wh*t you do "With the fifteen hundred dollars your father g- ve you? A, Well X hod to buy furniture and different things vahen I got married,
Q,. How did you get the other three hundred dollars? A. The other three hundred dollars.
q. Yes? A, I didn't get no other, three hundred dollsrs?
Q. Vfnat v/? s your extra compensation for that year?
A. Oh, nineteen hundred, daitacst yes.
Q. Whet v/-s your compensation for that year? A, 'You mean all together.
q. Yet for the year you got married? A. Sineteen hundred dollars.
Q. Then, you got fifteen hundred dollars from your father as a- marriage present? 'A. Ho, he loaned me the fifteen hundred dollars.
Q. Did you ever pay it back to him? A. Yes sir.
Q.. WhenX A. He drew that against my compensation.
Q. He drew th=t against your account? A. Yes, sir.
0. How wksk when had that year's work begun for which you were to receive this extra eeJ compensation? A. The beginning of 1914.
end Q. At the beginning of 1914,flie gave yoxi fifteen hundred dollars in Í.I>. rch 1914? A. He loaned me that in 1914.
Q. Did you pey him b'-ck? A. He. drew three checks against my account, one in June, July and September.
o. How muoh were er-ch of these ohecks? A. Five hundred dollars.
Q. How did you receive the other three hundred dollars from him? A, In oash.
Q. What was that for? A. Well, I needed it,
Q. When did you reoeive' it from him? A. I don't remember exactly when I got it from him.
Q. Well approximately what part of the year? A. I couldn't remember exactly.
Q. Do you know what you did with the three hundred doliere? a. Oh, I had to live, I had to buy clothes for myself and my wife.
Q. And you don't know at what particular time it was that you got it? A. I don't remember what time it was, no sir. This witnesses goes on to say that his father besides himself employed in the office, Hr. Hook, end Hr. Filiberto, and that ecch one of these clerks besides getting solarles were receiving additional compensation, Mr. Filiberto, fifteen hundred dollars, he was getting eighteen hundred dollars and his brother twenty four hundred dollars; plaintiff, Hook received besides his salary of twenty five dollars a week, fifteen per cent of the profits; does not know the approximate amount that his father had Aggregated the figures would amount to.
Q. That's whe.t I want to get at, In other words, yxExfxkkxx your father gave you as a clerk twenty-five hundred dollars a year? A. Yes sir.
Q.'And he gave your brother twenty nine hundred dollars a year? A. Yes, sir.
Q. He gave Mr. Filiberto twenty five hundred dollars a year and he kept his bookkeeper at twenty-five dollars a week
A. And fifteen per oent of the profits.
Q. And you say he didn't think that would amount to anything?
A. I say, I think he didnlt' know what the profits would be. No one oould tell what the profits would be at the end of the year.
Q. How, how did you seoure your compensation for 1913 from your fatherj A. I am telling you.
Q.. No, you' are not*
A, I am telling you, If he loaned me that compensation and then takes- I mean, If he loaned me the fifteen hundred dollars In March, 1914} then, instead of paying me my compensation of 1914, he kept that against what I owed him.
Q.' For 1914? A, No lop 1913.
Q. Then what were you paid for 1914? A. I only drew nine hundred dollars against my oredit for 1914.
Q. How did you receive the balance of that oredit? A, I didn't reoelve it, it is to my credit yet.
(J. It is still to your oredit? A. The hálanos of eighteen hundred dollars.
Q. How much of the balance? A. Nine hundred dollars.
Q. Thats for 1914? A. Yes.
Q. And how much was your compensation for 1915? A. I didn't get any, my salary was increased in 1915.
Q. To.howmuoh? A. Thirty Five Dollars.
Q. What did you get in 1916 in the shape of extra compensation?
A. Hone.
Q. What did you get in 1917? A, MonJE,
Q. Whet we.s your salary in 1917? A. Well, our place burned down in 1917.
Q. Whet was your salary in 1916? A. My salary was brought down to thirty doliere.
Q. Is the business still running nay? A. Yes sir.
Q. What is your salary now? A. Forty dollars.
It went up to forty dollars? A. Yes, sir.
Q. Hov,r much have you got to your oredit with Cusimano & Company?
A. I have nothing to my oredit.
Q. You have nothing, I thought you said you xii still have nine hundred dollars? A. Oh, -well -chats the old business, against my compensation you mean.
Q. How much is to your credit with Cusimano & Company?
A. Nine hundred dollars.
Q. And you have never drawn against that? A,. Not yet.
Q. Why not? A. Because I don't need the money*
q, Then you heve gone along during the last three years on thirty five dollars a week, thirty dollars a week, and now forty doliera a week? A. Yes sir,
q. And the nine hundred dollars is still there untouohed by you?
A. Yes sir.

Ben Cusimano after giving his neme, stating that he is vb=s e, xsbsxs£:c&b£ son of defendant, that he worked at his place," worked ;.s foreman upstairs, and that he was thirty years old, •further testified:

q. Your neae appears in the report of Mr. St. Paul herein as being entitled, in addition to your weekly s-'lei-y, to compensator. in lump sum of $1800. Did you receive all.or any part of that $1800? A. I received all of it, and' not he.ving e. bank account, I turned it over to my father and took it as 1 wanted it.
Q. You actually received all of that eighteen hundred dollars??
A. Yes, sir.
q. How was that $1800 paid to you? A. All at once.
0,. In what way, by check or cash? A. By check.
Q. Wh"t did you do with the oheok? A. Turned it over to my father,
q. How did you get the oash then? A. Well 1 took it out as I wanted 'it in cash money, any time I needed it I asked him for it and he turned it over to me when I needed it.
q. Hot/ many times did he make payment to you of this $1800?
A. Well, one of five hundred dollars#
q. What did you do with the five hundred dollars. A. What did I do with it? q. Yes — don’t repeat my questions. What did you do with it? A. I spent it.
Q. How? A. Foolish,
q. What Send do. you cell foolish? Exnlein thst. A, Well, X spent the •first $500 foolish .and the rest I invested and lost,
q. In whrt did you invest it? A. I don’t remember whs-t X Invested the lost.
q. How did he pay you the $500? A. In oheok.
q. What did you do with that oheok, go to a bank and cash it?
A. Yes sir.
Q. Vihat bank? A. The Commercial Germrnia Bank,
Q. You endorsed the check and presented it? A. Yes.
q, T/hat other sums did -you receive from your fsther?
A. A thoussnd dollars was the other cheok? q. How did you cash it? A. By check.
Q. You went to the benk xH&sscshEX and cashed it and ■ drew a thousand dollars? A. Yes.
Q. What did you do with the thousand dollars? A. What did X do with the thous-nd dollars? q. What did you do with it? jffiounsel for defendant interposed and this occurred.
Mr. Mkrinoni: What thousand dollars do you refer to?
By Hr. O'Connor: The thousand dollars he says his f-ther gave him/
By the Court!’
q. Can't yon answer the question? A. Yes.
q, Well answer, it and we will save time? A. Well, I loaned most of.it out.
Q. To whom? A. friends.
q. Heme the friends? A. One 'of them is Joe Iieonie of Hew York City.
q. Do you know his s,ddress? A. Ho, X haven't received a letter fn six months-.
q. How much of the thousand dollars did you loan to Joe Leonie of Hew York City, whose address you don't know? A. Five hundred dollars.
Q. Did he ever pay you back?.A. Ho.
Q. Did you get e. none from him on that? A. Ho.
q,. You just loaned it to him? A. Yes sir»
q. What did you do with the other five hundred dollars?

By the Court!

The v/itness is an intelligent witness. If you don't know-whet you did with it, say so.

Then asked by his counsel, Mr. Ms-rinoni:

Q. Are you married? A. Ho.

By the Court:

Q,. You can't answer th’-t question? Do you know wh-'t you did with the othsr five hundred dollars?
A. (No answer).
Q. If you don11 remember,say so? A. I don't remember that.
Q, And you swear the additional compensation was §1800.00.
A. (noanswer)

By the Court:

Answer the question.

A. Mr. Marinoni made a mistake when he s''id §1800.
Q. How muoh was your additional compensation? A. Twenty-four hundred dollars.
Q. Then, you have accounted for eighteen hundred dollars. How did you receive the additional six hundred dollars? A. The same way.
Q. Ihst do you cell the same way, by check or cash? A. By oheok.
Q. What did you do with the additional six hundred dollars?
A. V/hy, I spent most of the money.
Q. In whst way? A. Buying things.

Rudolph J. Derbes, a witness says substantially that he was- first employed e.bout December 1913 by Mr. Cus imano; he is an expert aooountant and licensed public accountant.

Q. Did Mr. Cusimano give you any instructions in reference to any entries to be made in the accounts of 1913? A— Yes, sir.
Q. Now state whot Shat was?
A. Well, one particular instruction was either directly or through Mr. Hook, to make entries for two salaries, yearly salaries, ?.s far ss I oar. remember, '§1500 each for his two sons. Now, I knew s.t the time thr-t they h*'d drawn their weekly salary, and I got the impression th»t it was only put on the bouks in order to reduce the profits, to reduce the inoome tax.

Objection w-s made as to witness's Impressions and the objection was sustained.

Q. Now, st»te why you believed th"t; st-. te the facts.
A. Because the salaries having been drawn weekly and the profits appeering surprisingly large, they were, rs f-r as I can remember, reduced by tho~e tV' entries. Now, I di'-oussed th*t at the time, and T «• id: »lf you ..re £.cflmg to„_
Q. You discussed it with whom? Á. Mr. Cusimeno and Hook.
Q. Did you disouss it With Mr. Cusimano himself? A. Yes.
Q..How, go ahead and state what you discussed.
A. I said: "If you are going to put those se lo ries on the boolcs, you have to pay them; you oan't put any fictitious .entries on the books"; and six months after I met Mr. Hook '¿nd asked him if they were paid- — ,.
Q, Do you' know .whether they were paid or not?
./A. tfel-1, subsequently, X don't know.
'Q. Did you"work for defendant in 1914? A. X worked in .about Maroir, I think.
Hi How whs there anything said then about bonuses?
A, Ho, at the time of making the entry I made that remark, that if they were put on the books, they would have to be paid.
Q. What was the character of the conversation that led to ■ that? What did Mr. Cusimano say to you? What did you say to' him? A. He transmitted the instructions to me to put it on the books/ I think, through Hr. H6ok, because he never would talk to me. But he was present, he would not speak 'to me beoause I was deaf.
£}. How, then state to the Court what was the object of the conversation, whet was the subjeot of the conversation. What were you all driving at? What were you trying to aooomplish?
A. I remarked: "Itf you are going to put salarles on the books, after salaries have been paid weekly, it appears to me as though it is not a-bona fide salary; you have got to pay them, and, if you want to put them on the books, you better p^y them".

By the Court:

Q. What did he say to that?
A. Well, Mr. Cusimano didn't answer, but he Just simply led me to believe it would be paid. Be made no answer to my statement at all.
Q. You were instructed to meke entries? A. Yes.
Q. Why were you instructed to make them? A. To oloee the books for the year 1913. The income tax was discussed at the time. I don't remember whet we s said, but discussing the inoome tax and the closing of the hooks, I wee instructed to put two salaries on the hooks, which, I think, e-re $1500; I don't remember if it was íHtooi twelve or fifteen hundred, but something like that. X said "Thets oil right, so for os it goes, but you hove to pay them; I em going to put these salaries cn the.books, but, if I do, you hove to pay them; I don't w"nt any ftaitiax fiotitious entry"; and no ons"-er- was mode that I remember now to thst statement of mine.
Q. What X wanted to know from you at the time you were so instructed to make those entries, wh»t wee the dleou-sion?
A. The disoussion was to reduce the profits for the income.
Q, The discussion you sey wes to reduce the profits for the inoome tax? A. Yes, but now who brought the subject up, I can't sey positively, but Mr. Hook spoke about it and I spoke about it and Mr. Ouasims.no spoke about it and it seems as though that entry wc.s a result of th»t discussion. After stating the facts at the time, I have comp-le-ely forgot all about it. In other words, I didn't went to be putting en-gríes on the books th't would be fictitious, ?nd I so stated.

The testimony of the defendant, together with thst of the plaintiff would throw no further light upon this intricate subjeot. From the testimony of the two sons, employees of the defendant, together with str tenants of conversation had between plaintiff, defendant end Mr. D»rbes, we are convinced thst the bonuses or addition? 1 s,:l»ries sworn to by the defend'nt and his sons, giving credit to the testimony of these perties interest in this o.-se as far as it is possible sc to do, th-t if the amounts paid to the sons by the father were oorreot, it must h‘ ve been in the nature of f. gratuity or otherwise, and net es oempenss tion in siddition oc the sel'. ries received by them, snd therefore, we conclude SfcxX oennot be ohurged to che jileintiff in this cEse, in order to reiduce the .profits of the business •-■s shown by the kxjsüexíxíxxk experts in this a> se.

Hia honor, the Judge of the lower Court h»d these witnesses ell before him end r-fter a orreful investigation of the whole matter ot issue, came to the conclusion th- t the amount ss fixed by the experts due .->1= intiff we s the correct sum. He w s in s. better

position to see from their actions^ their conduct, together with their testimony, to decide the issues : resented here, thf-n we are, end we conclude th^t all the circumstances surrounding this ca.se, th-'t hie decisions was correct.

For the reasons assigned, it is ordered, adjudged end decreed th»t the judgment of the Court t quo be and the seme is hereby affirmed at the cost of defendint in both .f-Courts.

-Judgment affirmed»


author: CHARLES F. CLAI30RNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    SHERER-GILLETT CO. VS WM. J. BENNETT, Appellant.
    No. 8314.
    June 30th, 1922.

   SHEHER-GILLETT CO VS m. J. BENHETT, Appellant.

ilo. 8314

CHARLES F. CLAI30RNE, JUDGE.

This is a suit to enforce a money penalty for failure to comply with an obligation to pay money.

The suit is based upon the following- document printed in such attenuated type, as if intended for the lynx-eyed alone to read» and eleven lines to the inch, winch reads in part as follows:

" April 1st, 1920
To Sherer-Gillett Company,
Chicago, Illinois.
Please ship to me at the following address, as soon as convenient, F. 0. B. Shipping Point, x x x 1 Ho. 66 Sherer Patented Display Counter x x x which I hereby léase from you for the term of 18 months, and promise to pay therefor, as rent, the sum of 330 Dollars in installments, the first installment of $12 to be paid upon the execution of this agreement, the second installment in a like amount to be paid upon the arrival of the leased property, and the balance of said installments to be paid as evidenced by the note hereto attached, presentation of which note before bringing any suit is hereby waived. I also agree upon the expiration of said tern to surrender to you said leased property in good condition, ordinary wear and tear excepted. It is an express condition of this lease, provided said leased property has been duly surrendered to you, that I shall have the privilege, for thirty days after the expiration of the same, of purchasing said counter for the price of $10, to be paid at the time such privilege is exercised, provided further I shall have fully and duly performed my part of this lease. And it is further agreed that in case I shall fail to pay any installment of hire when due, or shall fail to perform any of my covenants herein contained, and you shall not avail yourselves of the right to retake possession of the said property before the expiration of the term aforesaid, such right on your part to retake said goods immediately upon the breach of any covenant on my part, without notice or previous demand, being hereby expressly acknowledged, then and in such case, the whole hire for the whole of saiii term shall become due and payable, and I hereby authorize and empower any attorney of any Court of record of Louisiana or elsewhere to appear for and enter judgment a^inst me for the whole amount of the hire unpaid, with costs of suit and attorney's fees of ten per cent and release of all errors, and without stay of execution; and 1 inquisition and extension upon any levy on real estate is hereby waived and condemnation agreed to; and the exemption of any property from levy and sale on any execution' hereon is also hereby expressly waived, and no benefit of exemption is to be claimed under and by virtue of any exemption law now in force, or which may be hereafter passed*.
"It is expressly agreed that if. default be made in the payment of the rept, or any part thereof reserved herein promptly at the time herein specified or in case I shall dispose of or remove said leased property from the premises where^tJf^Jusiness is now located without •your written consent or if said property shall be or about to be seized by virtue of any Court proceeding or otherwise, it shall be lawful for you or your representative at any time thereafter, at your election and without any notice, to declare this lease ended and to thereupon retake possession of said leased property either with or without process of law using such force as may be necessary in so 'doing, I hereby expressly waiving and releasing any and. ail damages to my person and property caused thereby".
"I also empower any attorney to confess a judgment against me in a sum equal to forty per cent of the total rent covenanted to be paid with costs of suit, and attorney's fees of ten per cent as your liquidated damages, or in case I should wrongfully refuse to accept delivery of said counter; such power being in all things coextensive, with the power herein before granted".
"I hereby agree that, the bringing of any suit or the taking of any judgment for the rent, or any portion thereof, herein agreed to be paid, shall in no case operate to transfer the title to said rented property to me".
xxxxxxxxxxxxxxxxxxxxxxx
"Signed" W. J. Bennett
Accepted: Slierer-G-illett Company
by J. B. Stelfflug

The^follows the note in these words:

$306 - La. New Orleans 4-1^1920
For value received I promise to pay td the order of Sherer-Gillett Company Three Hundred Dollars payable ' in funds current at par in Chicago on the following dates:
June 1- 1920 $17
July 1 - 1920 $17
(and monthly thereafter until Nov. 1st, 1921).
"Signed" W. J. Bennett.

The petition in this aase alleged: lo that on April 1st, 1920, said defendant entered into a written contract with petitioner for the purchase of One Ho. 66 Sherer Patented Display Counter containing 31 drawers, for the sum and price of'$340, as will more fully appear from the said contract, duplicate original of which is hereto annexed as a part hereof; ILo that in said contract the said defendant agreed to pay to petitioner as liquidated damages in t&e event he should wrongfully refuse to accept delivery of said counter a sum equal to forty per cent of the said purchase price, together with costs of suit and ten per cent attorney's fees; IHo that shortly after si^ingsaid contract said defendant notified petitioner he v;ould not accept tie roid counter; that r.otvi tLsirnd-ing repeated efforts on petitioner's part to induce ncid defendant to accept said counter, he has refused to ’o so, plthcugh netitioner has always been ready and able to comply with its agreement; that defendant's action constitutes a wrongful refusal to accept said counter; IVo that by reason of defendant'a said wron-fii refusal to accept the said counter in accordance with his contract, petitioner is entitled to recover from bin as liauidated dr,/a ns a sum equal to 4Cfió of the ourchaoe nrice thereof, which was frViO or $136 together with 10fó attorney's fees thereon p„s provided in said contract.

To this petition the defendant uleaded that it disclosed no cause of action.

The exception .vas overruled and defendant filed an elaborate answer.

There was judgment for plaintiff and defendant isas annealed. It is femat erial whether the contract sued 'on is a loare or a sale as plaintiff calls it. Under both names the nlainti'T is suing for dono :es for non-paynent by defendant of 3ums of -money which he obligated himself to pay to the plaintiff.

Under a section of the Civil Code- entitled:

"Of the damages resulting from the inexecution of obligations ",

Article 1930 (1924) provides:

"The obligations of contracts extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of 3:is obligations, to the payment of the damages, which the other ->arty • as sustained by his default".

Article 1934 (1923):

"Where the object of the contract is-anything but the payment of money, the dama-es due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the followin'! exceptions a~d modifications".

■ C. C. 1935 (1929):

•The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more".

C. (¡. 2924 ( 2895):

•Interest is either legal or conventional, x x x The amount of the conventional interest cannot exceed eight per cent &c fisc".

R. S. 1864:

•Article 2895 of the Civil Code shall be so amended that the amount of conventional interest shall in no case exceed eight per cent under pain of forfeiture of the entire interest so,contracted*.

The argument of the plaintiff is that the amount claimed by it represents the fixed stipulated liquidated damages agreed upon for a violation of their contract. The answer is found in Griffin vs His Creditors 6 R. 220 in the following words:

"If, then* any penalty or damages were agreed on, it must necessarily have been entirely for the purchaser's default or delay to pay the money. There is, in our law, a marked difference between the damages which may be-stipulated for the breach of an obligation to pay money, and an obligation to give a thing or perform an act. ’.Vher^tte object of a contract is anything but the payment of money, the parties may determine the sum that shall be paid as damages for its breach, and Courts of Justice will not interiore-with such agreements; but, on the contrary, will lend their aid to carry them into effect. C. C. 1928 (1901) (1895); 1934 (1928) 6 5. But it is otherwise when the contract is to pay a sum of money. The law has provided, that no damages exceeding ten per cent on the amount that was to be paid,, can be stipulated. Article 1929 (1935) of the Civil Code delcares, that "the damages due for delay in the performance of an obligation to pay money are called interest. The creditor Í3 entitled to these damages without proving any loss; and whatever loss he may have suffered, he can recover no more". Article 2895 (2924) of the same Code, provides, that "interest is legal or conventional; if conventional, it cannot ejceeed ten per cent".

"Any contract, or agreement, therefore, into whatever shape it may be thrown, which stipulates for more than ten per cent damages, or interest, for the daley to pay money, is illegal. 6 Toullier p 271

264. If, in the present instance, the penalty was enforced, the purchaser would be made to pay, for the three years slapped, thirty per cent over and above the interest of ten pep cent, which has been running from the date of the protest. This penalty, or these damages, (the name is unimportant) would clearly be awarded for the iaexecution of an obligation to pay money. As the law forbids that such damages shall exceed ten per cent per annum, on the amount of money which the debtor has bound himself to pay, the inferior Judge acted correctly, in our opinion, in refusing to carry such a stipulation into effect, and in allowing only legal interest, pttrsuanfc to Article 1933 of the Civil Code now 2533 (2531). See also 74 Demol p 607 &643.

^3y no device or shift the -wit of .¡ian can invent, can more interest be taken, or profit made, than that which the law permits, on a loan of money". 9 R. 125; 3 La. 394, 4 R. 498; 6 R. 216; 12 R. 178; 1 A. 62; 5 A. 615; 11 A. 511; 638, 639; 12 A. 20;:1 Sedg-wick on Damages p 490 &233.

"We may remark in the first place, that it is well settled that no damages for the mere non-payment of money can ever be so liquidated between the parties as to evade the provisions of lav; which fix the rate of interest".

2 id p 216*400.

"Usury consists in paying a greater rate of interest than the law allows". 1 11. 7

The stipulation of usurious interest forfeits the whole interest. 6 La. 708; 2 Rob. 178; 4 Rob. 493; 1 A. 265; 2 A, 363; 5 A. 505; 13A. 365;13 A. 389, 537; 16 A. 240; 34 A. 897; 37 A.766, 767.

i If the value of the' services of a slave given for line use Íof money exceeds the legal rate of interest it is usury. 4 N. S. 167; 2 La. 114; 4 La. 319; 14 La. 214; 235: 13 A. 364; 5 M; 202; ^11 A. 511.

Interest, whether stipulated as interest or damages, cannot exceed ten per cent. 5S La. 192.

"There is no distinction as to whether interest be usurious or not, between the interest stipulated upon the price for which property is sold, and the, interest which may be stipulated for the loan of money". 5 A. 615*

Winn subscribed the following note;

"On the 1st of March 1861 I promise to pay to John S. Tarver or order the sum of $2669.48 for his services as overseer on my Winn Forest Plantation. In case I should fail to comply with the above, on the 1st of March, I hereby bind myself to pav to said Jno. S. Tarver or order, on the 1st of March 1861 the sum of $2936.42 for his services rendered on my Winn Forest Plantation."

T&e District Jud/ce rendered judgment for $2669.48. The plaintiff siopoaled. The Supreme Court said:

"It is apparent that in the note sued on, greater damages or interest are stipulated for delay of its payment than interest at a rate of eight per centum per annum; and the law has declared that such a stipulation causes the forfeiture of the entire interest contrasted for, unlews- it he capitalized and placed in the amount for which the note was given". 18 A. 557.

^ When it appears iron the petition itself, or from the evi-(Sapce, that usurious interest has been charged, the Court must novice it ‘without plea, as the law refuses an action to enforce such a contract. 7 La. 208.

We therefore conclude that so much of the contract sued on winch empowers any attorney to confess judgment against the def endant

"in a sum equal to forty por cent of the total rent covenanted to be uaid"

is usurious and illegal and cannot be enforced.

It is'therefore ordered.that the judgnent herein be reversed and.!set aside, ana t/t is now ordered that there be judg-nent in favor of defendant rejecting plaintiff's demand at his cost in both Courts.

Judgnent reversed - judgnent for defendant.

June '30th, 1922.


author: Dinkelapiel; J

text:
    NO. 8315
    COURT OF APPEAL PARISH OF ORLEANS
    AUTOMOBILE FINANCE & SECURITIES COMPANY VERSUS JAVIER FIGUEROA M. AND ALLEN SALES COMPANY.

   Dinkelapiel; J

Plaintiff institutes this suit against the defendants alleging that the Allen Sales Company is a legal copartnership oomposed of Theodore Grsnk and F. J. Weinberger, and that they are indebted to plaintiff in the full sum of Fifteen Hundred end Twenty Five and 04/100 (§1525.04) Dollars, with interest at the rate of eight per cent from maturity until paid, together with attorney's fees of fifteen per cent on said principal and interest; and alleging further that plaintiff is the holder and owner for a valuable consideration and bofore maturity of eleven promisory notos meds and subscribed by Javier Figueroa M. and endorsed by the Allen Sales Company; describing said notes, under sn aot of ohattel mortgage, paraphed "He Varietur"; mortgage passed before Betrand I. Cehn, a notary Public for the Parish of Orleans on September 11th, 1919, mortgaging to pie intiff a oertain Seven passenger Cole touring oar-Ho, 50740, to secure the sum of $1663.69, money loaned and advanced by plaintiff to defendant in partial representation of whioh said indebtedness the aforesaid eleven notes were given plaintiff by defendant; the notes and oopy of the aot of mortgage are annexed to .the petition. They further allege . that an the notes in suit are past due and unpaid and under the aot of mortgage and oonfession of judgment, the property described may be seized and .sold by execu-tory process for oash and without appraisement, and in' case of suit the'defendants promised.to pay the fees of the attorney employed for thet purpose, whioh fees were fixed at fifteen per cent. Plaintiff further evefs' that all said promisory notes- are endorsed by the Allen Sales ■ Company, oomposed of Theodore Brank'and F, J. Weinberger, who are indebted in solido- for the full amount, of this olaim, prinoipal, Interest and attorney's fees and pray for judgment for the amount olaimed to' be . due in thtir petition.

The defendant, Javier Figueroa, U. did not answer cr inr-ke eny t-ppee-ra-nce in this oase, but the Allen Sales Company end the individual members cf st-id firm, Theodore Frank-and F. J..Weinberger, snsiv'ered, admitting th- -t they v/ere the same copartners composing the &3c2:khxxS1x Allen Seles Comptny, they executed the note in question, but deny they ere indebted to jli-intiff in th1- sum cf $1525.04 or sny other sum wh'tsoever on the note sued on; rdii.it further that ..-li-intiff is the holder and owner before maturity end for & vsluoble consideration cf the notes in question, end thrt arid not^s ere identified with the oho.ttel mort-g ,a,e herein granted on ’-- Cols Touring Car, heroin described. Further f-n'wering defend'nts -admit the en .cr icment on the toteó herein sued cn but deny th t th-y or cither cf them ■ re in < ny my indebted to pit intiff, bee use plf intiff’e corccr-ticn w s eng- ged i-t the time of their acquisition of the notes herein =ued on, in the business of di:-oount-ing mcl handling, buying >'nd telling notas -.nd ether com-r/.'.rci'l ptpors s-'cnr?d by Chattel mortr> ges cn automobiles; ¡-nd averring- further that iJla-intiff oorpor-tion advertised end solicited the business of v> ricus .-.uta-nobile dealers fer the h-ndling or discounting of their ohi.trel mortgage not»s '-nd th-'t the busineaw; of def'-nd-nts vr-• -solicited, both by letter md in person by the pi intiff oerpero-tion through its respective officers '-nd • g&nts, And ".verring th'-t in connection with its efforts to secure end obtain business as ' fort.-a id, th'* e--id pi-'intiff printed nd cir-cuí1 ted for ■ the inform-- tion ---nal use of the ,ublic xi-ad.-aits certain '-dvertising m-.tter ni «ohedule of ch-rgss. Th-t they oh- rg d d-'fend-ntc with the _;r--...i- -ms of incur1 uc? acrid thus giving to dofen-.\ nt a. b :olute a- -curity in c! "--e of ny losa. And further í ns-1 ring -. vtr th- t th- ■ ut'.mc jila ■crib -i m ,h- -tit'en ■ n-d th? -.ob of mart,, ge h-d b:--n -ar-ng ’.CPy oanv rt. by J vi r Flg.-.t rot '.l,, the purch. ser -n.l a l:--r of tí- net ■ nd th- mert-p gcr cf lh.- s-id c r; in-., tb- se c<-n ■=■ a.ef u.bntf. jji-p ¡i.vised of the e-id wrongful' act of conversion they imi.-.edif tely notified plaintiff end plaintiff through its agent end represent'tive accepted no-ticie and informed jlefen dents they were protected by re;-sen of the insur*. noe,end subsequently for r>- sons unknown to defsn-i»nts demand w”s m**de upon them for payment of these notes, which de-!i;;. nd .v- o nfused • nd pi*, intiff denied there w! a any inaur-noe on e.a id c* r covering said wrongful conversion, /.nd further • nav/er-ing allege th-1 they paid to dsfxKáx pi* intiff, the yrsmitu.. charge by it for wrongful conversion insur'noe on •-.*. id car, .-.nd vh-t the policy covering sí id ocr ir> or should be in the pc csession and under th? control of plí intiff, is oil other policies on s-id car issued -1 the time and paid for in the same way end at the same time by defendant. Th-t plrintiff ie legally indebted to end can or should heve -ism'.nded c fecc-very fro», the Insurance Company the amount of the policy collectible uniar the wrongful conversion policy, and if it h- s fc*iled or negletted so to do, it was solely at f'-ult end its lechas feas relieved ind re-lersed defend-nts herein from any responsibility on the s**id ftotes.afxikxxx Hence pr*-ys for ¿Hágum judgment in their f**vor, defendants

Subsequently/xixiniiff avers in a supplemental and answer amended/psfcfcfcioa: that the notes sued on were, materially ; i_ tered without the oonsent of defend*nte herein, without their . knowledge or *uthorlty, end that they have never assented thereto, and that sa-id material alteration w?e made subsequent to the endorsement thereof by defend-nts, and after delivery of the said notes herein sued on, end therefore for that reason defendants are not responsible. Copies of the notes are annexed to the petition and are offered in evidence, together with certified copy of ohe.ttel mortgage executed before Bet-trsnd I. Cshn, on September 11th, 1919, and after offering the notes and mortgage, plaintiff rested their ease.

The first ’witness offered by the defendant in this oase is G. Owen Vinoent, and he was called.on cross-examination, and after stating that he had been President of Plaintiff corporation since its organization and aotually in charge cf its affairs, then followed:

Q. The oompany issued a p'rospaotúB and other printed matter in oonneotion with its campaign for the sale of its stook and for the obtaining of businessT
A. Yes, sir.

At this stage of the proceedings, oounsel for plaintiff made the following objeotlon:

"X went to make this objection at the outset, so that . it osn apply throughout. We object to any testimony for the purpose of varying the written oontra.ot of endorsement; and we would like to have the same objeotlon apply to all testimony," By the Court:
"X will let the objeotlon go to the effeot, with the reservation of the objeotlon."

We are convinced th*t the ruling of the Judge was an error.

ttodBr the Negotiable Instrument Act of the Legislature of 1904, being Aot No-. 64; Seo. 63:

"A person who indorsed a note in blank before its delivery to the aiqzsxsc payee is bound as endorser and parole evidence is not admissible to prove that he signed the note' e-s surety."

In the c?ee of Neosho' Hilling Co. vs. Termers Co-op. Warehouse Stick Co. et *1, found in the 130 Le. Rep. at page 050, the o^se in question was one where the Court of Appeiil asked for the interprete-tion of the Negotiable Instrument Law in reference to whether or not a person placing his signature upon an instrument otherwise than as maker, drawer or aooeptcr, is -deemed to be on endorser, unless he olearly indicates by appropriate words his intention to be bound in some other capacity.

The Court of Appeal propounded this question to the Supreme Court:

"Does the sot just referred to establish a conclusive presumption tint e- person not a msker, driwer, or ao-oeptcr, who places his signature on z note or bill, is an endorser unless he olesrly indicates by appropriate words his intention to be bound in some other capacity? Or does it'-merely establish a presumption to that effect, which may ' be rebutted by the evidence of the oonsent.and intention of . the person to be bound in another oppaoity?"

The Supreme Court goes on to answer .the question as follows:

"The law deems suoh a person to be an endorser, unless by appropriate words he indicates an intention to be bound in some other oape.oity. If no suoh -words appear between the four oorners of the instrument,suoh a person is deemed to bo an endorser. In other words, the lawmaker's intent is that the question of the oppaoity of s. person, whose signature appears in s. .bill or note, is to be determined by the words of the. instrument. The aot of 1904 settled in this state a number of questions, on which there was s greet conflict of judicial opinion throughout the states of the Union, and, among them, the status of irregular, or anomalous, endorsers of oommeroi'-l paper. A person,- not a party to the paper, a.s maker, payee, or holder, who placed his name on the baok of the note at its inception, had been variously held to be sn endorser, maker., surety, or guarantor. 7 Cyo. 664 et seci. In a Hew York suoh person was held »s en endorser; in Massachusetts, as maker; in Louisiana, as surety for the maker; and in some other states, as a joint maker to the payee. Id. The Aot of .1904 followed the Hew York rule, and the oerteinty, so desirable in the matter of mmmpss commercial paper, wiuld.be destroyed if the capacities of the parties as they appear on the instrument oould be ohangsd by parol evidence. The rule as lsid down in the Act of 1904 is very plain and simple, and where the lew mekes no exception the-court can make none.
ÜÍS therefore answer the first question in the affirmative, and the second in the negative."

In Corpus Juris, Ho. ,8, Seo, 133, /ssegSgKStjik 75:

A person piecing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he dearly indio=t«s by appropriate words Ms intention to be bound in some other caps city.

Citing numerous authorities under Sections A end. B th'-.'t same pore.graph.

So thatt we hold under the -Negotiable Instrument Aot and under the decisions referred to, if defendants »t the time of-signing their names to the note had then made any exceptions by reason of'the signatures, the evidence might under ouch circumstances have been available to the def*nd'.nts in this oí ce, but not having done this, under the law -.nd the decisions, this testimony is untensble.

Therefore, the objection to all the testimony m-de should have been maintained,

other ’..-here The only/ question far determination is/xhxthxs the has piece of payment of o note is left bl;-nlo/ the holder the right to fill in a convenient pi see7. We answer this in the affirmative.

The Negotiable Instrument Lew expressly pr ¡vides ■that "where the inetr’.uaent is wonting in any material p¡-r-ticul»r, the person in possession thereof h< s prim' f' oie authority to complete it by filling up the bl* nice therein." Also see Corpus Juris, Bills ■ nd Motes, Par-- gr* ph 313, p' go 133, and ptjr.grvph 315, pi.ge 185.

For the reasons assigned it is ordered, adjudged ond decreed th>t the judgment of the lower Court in thie case be and the -reme is hereby annulled, rev-, reed ¡.nd .-..voided, ■ nd tho.t there may now be judgment in ft vor of the Automobile Finance fcoSeouritles Company against the Alien Sr.les Company, a legal firm composed of Theodore Ersnk end F. J. Weinberger, individuo-lly and in solido, in the full sum of §1535.04, with Interest &t the rate of eight per oant from maturity of the obligation until paid, together v/ith attorney's fees of fif- and teen per cent on prinoipel,/interest,end for costs of both oourts,

-Judgment reversed "nd render»!-


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    MRS. THERESA FINK, wife of JOS. REED vs J. L. LANCASTER & al, RECEIVERS T. & P. RY., Appellant.
    No. 8318
    April 10th, 1922.

   MBS. THERESA FINK, wife of JOS. REED vs J. L. LANCASTER & 0. L. WALLACE, RECEIVERS T. & P. EC., Appellant.

No.8318

CHARLES F. CLAIBORNE, JUDGE.

This is a damage suit for personal injuries suffered •while alighting from a railroad train.

Petitioner averred that in April 1S20 she purchased a ticket at Mo Call, Louisiana, to he carried on the train of the Texas & Pacific Railroad to Gretna, in the Parish of Jefferson; that she hoarded the train and arrived in Gretna at about three o'clock P. M.; that she proceeded upon the platform of the car upon which she was riding and down the steps of the car, and thence she put her foot upon a stool placed near said steps hy the employees of the railroad for the purpose of assisting passengers in alighting from the car; that the stool immediately tilted over and slid from under her; that she was thrown violently to the ground; that she weighed over two hundred pounds, and that the fall caused her painful injuries which entitle her to recover from the defendant $1800 as compensation for her sufferings and humiliation.

The defendants pleaded a general denial, and averred that if plaintiff was injured it was not through the fault of defendant, hut it was the result of her own fault.

By a judgaent, accompanied hy written reasons, the defendants were condemned to pay the plaintiff $1400. They have appealed.

The testimony establishes beyond a doubt that when the plaintiff put her foot upon the stool it tilted and she fell and injured herself. The defendants admit that fact.

The stool or stepping box in question was offered in evidence and was exhibited in the argument of the case in this Court. It measures in inches 9-1/4 by 14-1/4 on tip, 12-3/4 by 16-1/4 on the bottom, and Is^high; it has a slot on the top piece of 3/4 by 3 to allow the insertion of the fingers to move it. It is a solid piece of work and is in good condition. It is the ordinary stool used by railroads to assist passengers in alighting from the steps of the cars.

The law of the case is as follows:

It is the duty of the carrier to exercise a high degree of care and skill to carry a passenger and to set him down safely at his place of destination. This duty applies to approaches and to all means of ingress and egress. 5 La. 431; 27 A. 377; 34 A. 145; 37 A. 705, 648, 694; 38 A. Ill; 39 A. 649; 40 A. 417; 44 A. 1059; 47 A. 1107; 50 A. 864; 107 La. 355, 376; 110 La. 399; 143 La. 87.

If he should fail in this duty and the passenger should suffer injury, thecarrier is liable in damages, unless he proves that the damage was not his fault and was the result of the passenger's own conduct or fault. 27 A. 378; 50 A. 864; 118 La. 4» 811; 121 La. 604; 126 La. 512; 144 La. 198.

A degree of attention beyond that given to an oridnary passenger should be bestowed on one known to be affected by a disability by which the hazards of travel are increased. 35 A. 204; 48 A. 831; 51 A. 1599.

The carrier should stop the train at the usual platform for discharging passengers at the place of destination; x x x if passengers are required to alight at any other point and injury should result therefrom the carrier is liable. llBDLa.399.

A passenger is bound to use only ordinary care and prudence to preserve himself from injury. 107 La. 376.

The burden of proving contributory negligence lies with him who alleges it. 145 La. 338, 87.

"Railroad companies will be held to accountability for misconduct of their servants and for defective appliances used in operating their trains. Their business subjects them to the risks of accidents, and they should make ample provisions against their happening. It is an implied condition on their part with each passenger that the latter shall not be put in jeopardy of life or limb by any fault, even the highest (slightest) of the servants of the company. This responsibility will be found the greatest safeguard agsinst abuses & c". 145 La. 328. 10 C. J. Vo. Carriers 41229, 1263, 1269, 1294, 1338, 1340, 1360.

The circumstances of the accident are thus related by the plaintiff.'

The conductor or the brakeman got her by the aim to assist he r^ and when she flfcst,'fci^put her foot on the stool it slipped from under her or broke, and she fell and became unconscious5 at that time she weighed two hundred and ten pounds; she put her foot in the centre of the box/

The defendants thus explain the accident.

John A. Landry testifies that he was the conductor at the time of the accident; when the train stow^jA^e^^tlg^^ steps of the coach in which the plaintiff wás'wer^six or eight feet west of the brick platform; when the plaintiff

"stepped on the box, she stepped on the eige, and it tilted towards me and she fell from it";

he held her by the am as she stepped from the steps to the stepping box; there was nothing the matter with the stepping box; passengers had to step in the street and then go on the platform; the stepping box was not on the platform, but on the ground on the street, six or eight feet from the platform. Under instructions from the Court the witness attempted to tilt the stool by stepping upon it, but failed. He could not tell the cause of plaintiff's falling.

Vernon C. Fagan is passenger agent for defendant; Ms testimony is practically the same as that of Landry; he too tried to tilt the box and was unsuccessful; the ground upon wMch the stool was placed vas level'.

George Willingham was porter on the train; the stool tilted when the plaintiff put her foot upon it; tMs witness tilted over the box by great effort two or three times, by putting Ms foot with about half of the sole of Ms shoe on the edge of the box, with the sole of Ms foot about one half inch from the corner.

Herbert Fink, a brother of the plaintiff, testifies that the ground on the west side of the platform, where the stool was placed, had been low and muddy, and that gravel had been put upon it lately,- but that it was still uneven.

The theory of the plaintiff is that the stool was placed upon uneven ground, adjoining the platform, and for that reason tilted when plaintiff put her heavy weight upon it. The theory of the defnndant is that the plaintiff carelessly put her foot upon the edge of the stool, and in that manner tilted it. Either hypothesis is fatal to the defendant. Of course, if it put the stool upon unsecure ground, too soft to resist the weight of plaintiff's body, it is liable. In directing passengers to land at a place outside of the regular platform, the defendant assumed liability for any injury arising therefrom. We believe plaintiff's theory is the correct one, as it is shown that neither the conductor nor the agent could tilt the stool upon a level surface. The trial judge adopted it.

Defendant's theory cannot help it. It was its duty to supply the passengers with such a stepping stool as would not tilt with ordinary use of it, whether the passenger put Ms foot upon the middle or upon th6 edge of it. Passengers cannot be held to study the exact spot upon wMch they must put their foot upon the stool, under the penalty of being found guilty of negligence. When from a coach, they are usually in a bur-numerous passengers ry, jostled on all sides, and embarrassed with baggage of all kind. Especially is this the case with female passengers. Under these circumstances, passengers cannot be held to mathematical precision in stepping upon a stool. But plaintiff is not proven to have put her foot upon the edge of the stool. Only one witness testified that she did, and he was an employee of the defendant. The plaintiff testified that she put her foot in the .middle of the stool. But even if she had put her foot upon the edge, that would not have caused the stool to tilt, for both the conductor and agent were unable to tilt the stool by stepping upon it, on the middle or on the edges. The plaintiff is not shown to have used the stool in an unusual way.

The case of Nicholls vs T. & P. RRd. 144 La. 197 quoted by defendant is not in point. In that case the Court did not find that the stool had slipped or tilted under plaintiff's foot. It found, on the contrary, that

"plaintiff's foot rested on the edge of the footstep and slipped off, and that the footstepdid not move", p 198.

We think however that the damages allowed are excessive. physicians who examined plaintiff testify to bruises and contusions^ painful but not serious. She says she kept her bed for two or three weeks and remained in the house two or three otíawr months; but her testimony is wakened by that of the physicians.

Upon the trial of the case defendant objected to any testimony in support of damages on the ground that no specific injury, is alleged nor any specific damage, and the claim in globo is vague and indefinite. They rely on 42 A. 890; 105 La. 401; 35 A. 465; 51 A. 1023; 1 Ct. App. 47.

The trial judge overruled the objections quoting C. P. 343, 344; 10 A. 528; 37 A. 800; 50 A. 765.

Vagueness, want of precision, <pr generalities in the averments of a petition should be urged by exception filed ip limine. C. P.332, 333; 37 A. 800; 50 A. 767 and authorities there quoted. 1 H. D. 1155; 52 A. 1442; 36 A. 553.

It is therefore ordered that the judgment herein be reduced from one thousand, four hundred dollars to one thousand dollars and as thus amended that it be affirmed, costs of appeal to be paid by plaintiff and costs of the District Court to be paid by defendant.

Judgment amended and affirmed.

April 10, 1922.


author: Dlnkelspiel; J.

text:
    NO. 8320
    COURT OF APPEAL PARISH OF ORLEANS
    EUNICE ICE & POWER COMPANY In Liquidation versus A. MARX & SONS.

   Dlnkelspiel; J.

This suit brought by plaintiff, averring that defendants bought oertain lot of mixed scrap at various times at an ■agreed prioe of $17.50 per ton, the oopper sorap at sixteen bents per pound and the brass sorap at thirteen oents per pound; there were shipped to defendants three oars of mixed sorap and four barrels of mixed brass and oopper sorap. The allegations of the petition go on ta assert that defendants paid for two of the oars of mixed sorap but never paid for the balanoe, hence they prayed for Judgment in the full sum of $444.76.

The- answer and-'reoonventional demand of the defendants admit that they bought a oertain lot of mixed sorap from plaintiff, but deny that the amdunt in question olaimed by plaintiff was owing by them, but assert the faot to be that on or before February 18th, 1920, they purchased from plaintiff a oertain lot of mixed sorap material whioh was looated at Eunloe, Louisiana, for the prioe and sum of $17.50 per ton¡ that under said oontraot plaintiff shipped them some of the sorap material, for whioh they paid, and alleging further that plaintiff contrary to their obligations under the said oontraot and in violation of its duty thereunder, separated from the said lot of sorap material, the sorap oast, whioh was the most valuable part of the lot, and sold same for $33.00 per ton, refusing to mete any further shipments from the said lot to them. That defendants were entitled to an accounting showing the proceeds of sale of the sorap oast made by plaintiff, and all othl er material comprised in the said lot of mixed sorap or otherwise disposed of by plaintiff in violation and breach of their oontraot with defendant, and therefore defendant is entitled to recover from plaintiff the difference between the proceeds of such sales and the oonvraot prioe of #17.50 per ton. Finally they pray that plaintiffs suit be dismissed at their costs and that plaintiff be ordered to account herein to defendants for the proceeds of the afile of seid scrap cast end all other materiel amas? comprised in the seid lot of mixed scrap wrongfully converted end sold or otherwise disposed of by plaintiff, and defendants deducting the amount alleged to ha due plaintiff, whioh they state to be §343.79, in reconvention pray for a judgment for b*lance due them by plaintiff of §943.31.

An examination of this record gees to show th'-'t in the esrly part of February, 1930, the plant of the Eunice Ice and Power Company burned and thair aff-iirs wer^ taken ov--r by three liquid--tors, who are the plaintiff? and appellee:? herein. The-fire evidently destroyed the property end it became neces- ? ry to dispose of ¡test of it as scrap, and in this oenn- onion letter.- p'. sed betw-'-.n pi-inciffs and defenis-nt, vhioh .substantially l?-n tc this controversy; ana after several *.rep: rt-tory letters betw-en plaintiff? liquid: tors end defend-r.te, finally termin--te i in letter addressed to pli intiff -.is ted February 18th, 193U, wherein the defend-nt wrote:

"ilixed scrap sxaxtiKixx excluding galvanized iron,butted sheet iron pipe or boilers would be worth §17.50 per ton delivered here. Ship heavy scrap copper sixteen oentB per pound, mixed brass thirteen cents per pound." Going on in this letter they add; "Now relative to the machinery we of oourse cannot take your price on this, nor would we oare to oomeout and look at it unless we had inventory from you astiis stating exactly what you had to offer, its condition and very lowest price you will take for seme. If you will furnish this information promptly we will get one of cur men to come cut on S-turfy night to go over this property on Sunday, if you h:.ve no objection, and try to make a trade with you."

It appears th't subs- .¿uently .,1; intiff shipped bar-ril? of scrap in oars to defendant and the belenes olaimed by pi tin tiff liras the sum now sued for.

The testimony of J£r. L. B. Showers, on9 of ths liquidators, is positive th; t plaintiff and defend nt had no contract an reference. to thee* .treneaotione," ,Hr. Showers testifies that he mot I and told the defendant- that the oompany he represented had a lot, of miscellaneous sorap for sale, asked for k price; that the prioe was given him and thst he agreed to ship at the price named.

Witness was asked this question:

(J. In the answer of the defendant It is set forth that you separated from the sorap that you had contracted to sell to them, certain oast sorap and sold it to someone else. Did you contract to sell to Marx the sorap oast to whioh they refer?
A. I did'nt separate any oast or any other material from the sorap tbet X sold them.
Q. What kind of sorap did you contrsot to sell to Marx?
A. Just e lot of miscellaneous sorap, mostly pipe and a little oast.
Q. What other material did you have after the sale to Marx?
A. Nothing hut a lot of maohinery that X had not then deoided to scrap,
Q. Did you agree to sell this maohinery to Marx?
A. I asked them for an offer on it.
Q. Did they make you any offer?
A, They told me they were not interested in it.
Q. Did you have anything available for sale besides the scrap which you aotually delivered, end the machinery they told you they were not interested in?
A. No sir. Wa had some boilers and things like that we offered to sell to them s,nd they told me they were not interested in them.
Q. I mean sorap iron oast?
A. We hs.d some brass and copper pipe whioh I sold to them and shipped out to them.
Q. Was that pert of the material sold as scrap or was that separate?
A. Well, it was all scrap.
Q, Was that paid for?
A. Not ell of it, No sir.
Q. Does the sorap brass and. copper represent pert of this olaimt
A. Wall, they paid according to my recolleotion'up to a oertain day end at that time they 3ent their check they had net checked in the rest of the stuff and they were delaying the settlement •for thst.

OJhe witness goes on to testify that he had two letters from Mr. Marx before he shipped any scrap and he of.lied upon -them personally; he never agreed to ship them s.ny stuff, had inquiries from several dealers in this materiel end their prices were in line with all the others on this miscellaneous sorap. On the advice of his oo-liquide.tor, Mr. Smith, he went over end hid e talk with 2ir. iferx speaking to him about this miscellaneous scrap snd asked again for a price, and referring.to his files, Hr. Marx made him the same price that he had made in his letter. He then ssked Mr. íferá about the machinery, if he was interested in it and he said no; on account of the machinery having been through a fire he was not interested in it .without first having seen it, and asked if I would make a price on o piece of machinery separately he would go and look at it end ifxhxxx after he examined it would let me know whether he was interested in itor not; he also asked me whether I would be interested in some ice .machinery that he was interested in, and I answered him no, all that we wanted was to get rid of' what we had and I told him 1 would ship a bt-r or two of miscellaneous sorap which-I had, and would sse further about the heavy maohinery, which X oould not be positive I ooüld sorap; I vfented to sell it as heavy mechineryif X could, he never did make a prioe of any kind on the heavy stuffjat the time of that meeting he asked me particularly whether there was jsny good pipe in this lot of miscellaneous sorap and after I hs-d told him that the best of it would be pipes I told him I did npt think there would be much good pipe, that it was mostly burned, warped end bent from the fire, and he ••remarked that that did not make any difference as long as it would stay in the oar, and they would out it up, ,as long as there was no sheet iron or galvanized material or badly rusted light iron in it it was all right. Xhats about all there was to the conversa-tüon and I told him I would ship what there w=s and also the oopper end brass, which was done. He testifies further that the price of the oopper was sixteen cents a pound and thirteen cents for the brass, and that the bulk of the shipment me.de Wes oopper and brass.

Q. How. how were you to knew what was due for those vslves?
A. They were examined, weighed snd remitted for accordingly, I billed , and/titoKibsbSi at/the blanket prioe, fifteen cents, simpiy to weight of the goods ^-meke a record of thVgcoodexaoat'giM; and the shipment,
q. The Harx end Son were to demand wh?t was due on thos vflvss?
A. They were nxighstt simply to weigh the oopper and brass separately and pay for it, sixteen oents for the oopper, thirteen cents for the brass, I had no soales to weigh eaoh separately.
Q. What e-re rne items that you are charging defendants with not paying for?
A. As -far as l sm concerned there is a ba-lanoe due on account, it is the amount in the rough, I don't Know because they would never furnish me with the exaot weight of the bra-ss and oopper separately, snd ihere was sn item of two of weight whioh they never furnished me with.
Q. You stated there wss some six carloads of material that you deoided to ship. Wnen did you decide to scrap this material?
A. I tried at various times to get a better figure by selling it es useful machinery, but when X oould not do nhat, as I only had the offer from John M. -iurphy Company of thirty dollars a ton, X ascided to sell it to them end sk did sors.p end ship it to them. Hobody else mxdKot made me an offer on it.
0. In exactly what condition was this metersal before it was scrapped?
A. With s. very few exceptions it w»s very good machinery.

And he goes on to testify the t he oould not get any better offer as it stood snd they only way that he oould sell it w*s to scrap it, and he hs.d offered it tc the defendant ber by fore it was sorepped but/correspondente :-nd verbally they refused to buy it.

The Court then asked the “fitness the folio >ing questions:

Q. Did those six ovrs of osst oome from th: t scrz-pped n-chinery exclusively?.
A. Yes. The machinery \ys really not scrapped ~-a lo-'d?:1. up, but i-s it w°s it w-s sold on the basis of thirty doll* i"> ? ton. I keep referring to it ss scrip although the nr-chinery '-to nor broken up.
Q. As soon ss you determined to sell it by xxjc weight it become for tne purpose of commerce, scrapvr.nd sold by weight?
A. Yes.
Q. Is Shut the ¡.¡-chinerv tt- t is referred to in on? of the let tero shewn to veu and th.t you »eked $450.00 for?
A. Yes.
CJ. The machinery 3 in that bunch?
A. Yes.

Witness further testifies that the first c-r went to John H. Murphy ft Company and was shipped il-rch 23nd "nd the firsc oar shieped to Uerx its a Siaroh 37th.

H. 5. Smith »lso one of the liquidators of ohe plaintiff company testinee ?3 fo?lov/s:

Q. Did you have nything to do with the making of the contract .stxXtaitxxJfaxxx between Msrx ®nd the Eunice Ice end Power Company?
A. There v/f.s no oontrect m?de th; t I knew of.
Q. Did you send to Marx end Sons all of the meteriiil which you ht-d determined w.s scrap on the day the contract with H-rx w»s mude?
A. We had; in fact we sent him more than v/3 hod intended he was to get.
Q.. Hev/ long after closing the dv 1 with Msrx was is th*t y;u closed the de.r-1 v/ith Murphy?
A. Y;s h.d the i?“-l v/ith Mur'hy before we had she d->l with Marx. Murphy offered thirty dollars a ton for any machinery we had in ease we decided to abandon the plant, decided not to use it again, end we could not find any other better offer.
q. What did he designate in his offer of thirty dollars a ton?
A. Any asst me chi neryi
Q. His offer was then, thirty dollars a ton for oasting3, he did not want anything but oasti-ngs?
A. Tes.
q. At the time you received the letter from Marx and Sons dated February 14th did you have Murphy's offer of thirty dollars a ton for the oast under consideration?
A. We did.
f}, And you dosed with Murphy Bfter you dosed with Marx?
A. We.shipped to Murphy before we shipped to Marx.

The testimony of Isaac Msxkx Marx, after stating that he was a member of the defendant firm, had been engaged in business for twenty years, and giving his definition of mixed scrap as a general mixture of scrap out of the destroyed plant, wes «shed:

Q. In quoting $17.50 s ton F. 0. Sr. Hew Orleans for mixed scrap upon what did you base your offer?
A, When 7/e quote on mixed scrap coming from any sort of a- plant, scrap from the debris, we know from our experience that we are supposed to get a certain amount of different grades of scrap, end the amount of cast usua-lly figures S3 l/3 per cent end we could not ps.y $17.50 a ton delivered in Hev/ Orleans for e lot of skin stuff suoh as that shipped, tv/isted pipe, etc., because we have to recondition thst scrap here and reship it to some other dealer and the freight rates -.re five or six dollars a tpn, at that the scrap pipe itself was quoted twenty one dollars or twenty two dollars s ton delivered in the oonsuming market so that on the face .of it, it showed that we exx^ected to get a better grade of scrap then just pipe.
4. Whs.t you might have expected to get would have no bearing on the oontraot between you. TOie.t I vent to knoYi is sinrply on whet did you bees your figure of $17.50 a ton?
A. On past experience.

Referring to the st- tórnente annexed to the defendants answer he seys they were all correct: and pertlcuirrly referring to the de .'end-nt1 e statement marked D 7 which ie an itemized account between plaintiff and defendant showing that balE-nce due plaintiff after deducting ohsrges, to be $343.70.

In testifying to the convers-tion had with one of the liquidators, Mr. Smith, witness stated; "I asked what became of the east iron >"nd he says: "Why ycu did not expect to get cast iron for $17.50, we sold it for $33.00 r. ton? either that or thirty dpw--gTT-Hrl»Trir*y-->rirVtrT«- dollars, witness did not remember; end in his testimony ne further 3eye in the ea.me connection: "the oast iron which they had gotten out of the aeons should have come to ua for $17.50, because we could not pay that price for goods or .stuff they shipped to us.

On cross e i'iminstion:

Q. You mode the statement that your experience tells you th*-t when you buy scra-p from a burned plsnt, you e-cpect to get thirty three and one-third per cent o^’st scrap?
A. Yes.
,if Q. You h!i.V” he-^.rd the testimony --.nd don't you know th-.t-'you had received the t.vo o;rs th’ t ycu cl: imed to h- vo, yea would h. ve gotten eighty p*r oentl
A. Ho, the testimony here ie th- t they ship, id the O'-ct to Murphy U-roh 37th end 31st, end. Apri... ,3£nd, they shipped us the lost p<--rt, th-t only -,-.1-ghed thirty thcusrnd pounue which is v¡>xy evident th»t they mu3t hrve taken 30ms of our oast iron to fill out the o:r for Murphy.
Q. When you ’purchased * lot or two of mixed scrip from the Eunice loe & Power Company, ycu in n»li.ty purchased with the full knowledge that you were puroheiing exclusively of the mvofcinery, is not that true?
A. Exclusive of the maohinerj that is maohinery not good to us, as'I tell you our experience teaohes us that when we buy mixed sorap in any oharaoter of plant suoh as this, a power or light plant, there is bound to be a lot of maohinery that is broken in the fire that is oast sorap, past experience shows us that it will go 33 l/3 per cent oast sorap with mixed sorap.'
Q, Bi4 She Marx & Sons settled for the two oars shipped did they not?
A. Yes.
Q. Did you question the quality of the material shipped then?
A. X have a reoollecticn we did, that we had th»t up verbally with Mr. Showers or with Mr. Smith, I don't remember oorreotly, we have a letter on file after we made the settlement, from wkioh it is evident we must heve questioned Mr. Showers.
some I}. Didn't Mr. Showers tell you that there was/sa*X usable maohinery in the sorap whioh they sold to you?
A. They told us that they were selling us with the usual amount of oast iron in the scrap,_ whether maohinery or otherwise.I din't oare, I was buying sorap, no maohinery,
Q. Did you take his word for that?
A. Yes, we didn't make an inspeotion of the plant.

On re-examination:

Q. Does the term mixed sorap include that pipe?
A. Yes.
Q. After you had agreed to buy mixed sorap from the Eunioe Xoe Company, did you make any offer on the pipe?
A. Yes, they offered to sell us s lot of salvaged pipe Whioh they evidently collected out cf the same debris.
Q. Whet did they ask for this pipe?
K. My reoolleotion is about fifty dollars a ton, and we were entitled to it at @17.50 a ton, it c&r.e in our original purchase.

The next witness is J. E. Wiegand, and he testifies that he is the superintendent of the yard for A. Marx and Sons, that he had a record of these oars. He goes on to describe them, give íhe numbers of the oars, together with the pounds of matter received.

0. Was there any cast sorcp confined in either of those c re?
A. Very little, if any; that is why I notified the office of the condition of the scrap, because X was expected to get v/h-.-t we usually get in & mixed carload of scrap r-nd in the absence of thl6 mixture, I reshipped the entire contents of those c:.rs to --nether iron works in Indians,,. where X think the stuff wf-.s finally rejected

The other portion of testimony of this witness relates to the different cars reoeived by him for the defendants, their wieghts, and the charscter of goods as heretofore described by him.

It is evident to our minds that the defendants receiver from these liquidators, the oh-'-racter of goods ..urohesed by them, they refused to accept and would not purohtse the heavy m:chinery rtnd so that wvs sold to other parties for >■ much greater prioe beoe.use it had greater value. The entire record, taking it as s either or orally ■whole, convinces us that there was no oontraot^in -writing/and thet the several shipments prior to the lust one, handled by the defend-ancs, ware paid for .tk by them, and after the list shipment had been reoeived, they then apted that the shipments did not come up to their expectations, their testimony being based on past experiences; whilst on th« other h-nd the testimony of the liquid» tor-, in this o&se is hxjraná convincingly to the effect that the goods sent to defendants ware undeniably the same to vrhioh there were no objec-.i- ns by the defendant a-t th? time of the inspección, and.us seated heretofore until finel payment there '(■;-•£ no objection "t C11 m-de by defendants. However, defendants in our .opinion justly claim the difference as shown by their exhibit D 7 between the -.mount cl--imed by plaintiff tnd the amount .-ctuully due by defendants to pli-.xucj.ii, *nd from the facts' testified to and ths reoorci, -re •■■re convinced that defendvnts' statement of the - mount due is correct, or the sura of #343.79.

For the re-sons issignad, it is ordered, .-¿judgs-i end decreed,' that the judgment ef the Court «.quo in unis onas, which V,-.-s for §444.76, he reduced to the sum of §542.79, i^nd for this latter amount, xxxix rl?intiffs, ths Eunice loe, & Power Company, in liquid'iicn, h vs judgment : gt Inst def-vnd-nt =, A. il. rx & Sons in with leg*l interest thereon from judicial her,¡and until paid,

. nd th.-t the rrooventionel dsm^nd of defendants, otherwise be dismissed, the oestr. of the ,v.pp--l to be paid by plaintiffs, the Eunice lea & Power Company in liquid-tion, ■ nd th- cost3 of the lower Court b-‘ psid by the definiente, A. M-rx S Sons, end 1 e ?m=nied, judgment be affirmed.

-Jui-rment amended -mi sffirmsd-