author: St. Paul, Judge.

text:
    NO. 7671.
    Mrs. NELLIE HOGAN GORMAN VS GULF MILL & LUMBER CO (Inc)
    COURT OF APPEAL STATE OF LOUISIANA PARISH OF ORLEANS
   OPINION.

St. Paul, Judge.

This is an action under the Workmen's Compensation statute, purely and simply; there is no pretense to any other cause of action. Plaintiff, whilst in defendant's employ, had "two phalanges of the fourth finger of his right hand out off." (sio)

As the physical faots sat up in the petition are admitted in the answer and no evidsnoe was taken thereon, we do not know exactly at what point the flngerB were ampdtutated; and henoe cannot Judge the exact extent of plaintiff's injuries, not haying seen her. Por the words of the statute, and of the petition, towit "I.OSS of a thumb xxx finger xxx first phalange of the thumb x x two phalanges of any finger xxx more than one phalange of the thumb xxx mors than two phalanges of any finger or toe xxx the entire member xxx more than one finger x x a hand x x x a foot, oto, etc," are somewhat ambiguous and may perhaps be understood differently by counsel and by ourselves; of which however we shall say more only when the issue presents itself. In this case we take for the faots what is written.

II.

With the faots as thus stated, and admitted, the statute fixes the compensation to which plaintiff is entitled for the "two phalanges" of the index finger of her right hand; the loss of "two phalanges" *f any finger being considered (by the statute) equal to the loss of tkv one half of.member, and the compensation being fixed at that one half ### specified for theloas of suoh member. She faot that it was plaintiff's "right" hand is irrevelant, sinos fmirabile dlotu) the statute does not distinguish between the right hand and the left. The compensation for this injury is therefore 66jC of the weekly wege for 16 weeks•

III.

Am to the loss of'one phalanx of the fourth finger", there la no compensation fixed by the statute; but "the oourt" may allow auoh compensation "as is reasonable in proportion to the compensation specifically provided in the oases of specific disabilities, not to exceed &o."

It ns therefore within the sound discretion of the District Judge to fix the compensation for this injury; and as he saw the plaintiff and could form an exact idea of the who extent of her injury, we have not seen her and do not know exactly what was meant by the loss of "one phalanx", are in no position to review that discretion; the full facts not being before us. He fixed that compensation at 50$ of wage hew weekly^for five weeks, and we will not interfere.

IT.

It is claimed however that "by reason of said aocident and the loss of the two phalanges and one phalanx aforesaid, the usefulness of her right hand is seriously and permanthtly impaired; that she has lost the strength of said hand; that said hand is of little, if any, service to her". Wherefore she claims additional compensation for 100 weeks funder clause ¿ of the first subdivision of section 8, act 58 of 1918, p. 54)

This claim cannot be allowed. The evidence shows that by reason of the injuries precisely stated in the petition, as and admitted, plaintiff's hand will never beAuseful to her aa it was before; that as yet she has but a very imperfect use of her maimed hand; that her hand is still weak. That is to say, the evidence shows (in effect) simply this, that she has not yet acquired control over her heretofore little-used middle finger, or been able to make it do the work of the lost index finger; that her hand, by non-usage for some weeks, has become weakened for the time being. But all of this will undoubtedly be remedied in time, and is but the natural conaequanoes of the very injuries she received, and for which the law fixes a specific compensation intended to cover that injury and all its natural oonsoquanoes. The oourt therefore can allow no more.

The oaae of Rodriquez vs Gul^--Woodworking Co (#6801) has therefore no application to the oaae before us. Where we Hté found as a fact that the injurias received amounted to more than thesmere loss of the amputated fingers; that the hand was so permanently and completely disabled as to be "loaf to the plaintiff, even though not actually amputated. The oasa here is quite different; we find neither permanent nor oomplete disability of the hand.

y.

What we have Bald just above applies equally to plaintiffs claim for "loss of time"; that was the necessary consequence^ of her injuries, and therefore was included in the statutory compensation.

The judgment appealed from seems oorrect, and it would not be disturbed; except tha1' by oversight the trial Judge fixed the compensation (for 20 weeks) at 50fe of the weekly wage (the petition inadvertently praying for that much only); whilst the statute of 1918 fixes the compensation at 5fi$, and defendant consents to an amendment accordingly, if it be not taxed with the costs of appeal.

The judgment appealed from Is therefore amended by increasing the weekly allowanoe from Pour dollars and five cents ($4.05) to Pour dollars and forty five cents ('‡4.46), and as thus amended it is affirmed; costa of appeal to be borne by plaintiff.

Haw Orleans, La, January 192C


source: Caselaw Access Project

author: CHARLES P, CLAI30RWE, JUDGE.

license: Public Domain

text:
      WM. A. CHANDLER VS. NEW ORLEANS HOMESITE CO.
    No. 7677.
    January 26th, 1920.
   CHARLES P, CLAI30RWE, JUDGE.

The contract sued upon in this-case and the pleadings and evidence are the same as in the casa of Werctley vs. W.O Homesite Co. this day decided and involve the same questions of fact and of law. Por the reasons given in said case the judgment herein rendered 'oy the District Judge is affirmed.

Judgment affirmed.


text:
    No. 7679.
    Court of Appeal----Parish of Orleans.
    Maurice Stich. -vs-Wm. G. Mc. Adoo, Director General of Railroads and of the Louisville & Nashville Railroad Company. Walter D. Hines, Subrogated.
    By Dlnkelaoiel. J.
   Plaintiff avaro, that on April 18th. 1918, at about 1.30 o'clock, p. m., he was driving his Hupmobilo Automobile from the Louisville and Nashville Fruit Shed to the annex of fcfc»- the Southern Pacific Railro-ad at Julia and Front Streets, and when he approached the Julia Street crossing of said Louisville and Nashville Railroad Company there was an engine with several cabooses belonging to the said Louisville & Nashville Railroad Company on the aide track whioh more than half obstructed his view of the crossing. - That upon entering the orpssing the railroad flagman, employed by defendant company, signalled to plaintiff to stop whioh he promptly did; that after a reasonable time had elapsed the flagman walked away and plaintiff assumed, ae he had a reasonable right to do, that the departure of the flagman indicated that the engine with the cabooses was to remain at a standstill; he proceeded to cross the tracks and had crossed the first track of the crossing when the machine was hit by a string of care belonging to defendant, and whioh cars had been out and kicked by the engine belonging to defendant. That this aooident took place in tne presence of switchmen o£ defendant company who were unable to stop the cars before biting the automobile of plaintiff. There was no locomotive attached to the cars.

Plaintiff further alleges, that as a result the Automobile was badly damaged-to the extent of §335.00.; thAt he made amicable demand upon defendant, and in default of defendant acting properly,he was compelled to have the repairs made at a cost of §335.00^ and annexes the bill of O'Connor & Co.;that same was done at_a fair and reasonable amount.

Plaintiff olaims further, that the oauae of the aooident was the negligence and neglect of duty on the part of the flagman employed by defendant in walking away from the tracks and failing to request plaintiff not to make the orossing, and that the foreman employed by defendant was not properly attending to his duties being quite a distance away from the orossing, and therefore plaintiff believes that said flagman acted improperly and without attending properly to hie duties as such flagman, and that the accident was due to a violation of the ordinary care in the kioking or backing up of oars on a public orossing in this City. He alleges further, that he was exeroising due oare and dellgence and did not in no way contribute to the accident; that said orossing is frequently used by vehicles and pedestrains, and that defendants gross neglect oaused plaintiff the damge as above setforth. Wherefore, he prays for judgment.

The answer substantially admits the aocident in question, the damge to the oar; alleges that the traok was olear at the time of the aocident and that plaintiff oould have seen just where to drive his automobile; that the flagman was in no wise responsible for the Injury, neither was the w switchman nor any of Its employees, that at the point where the accident ooourred, Julia Street, is intersected by ten railroad traoks. It is therefore the duty of anyone approaching the said orossing to exsroise a high degree of oare. That plaintiff approaohed the said crossing towards the woods. A out of eight oars were being switched or kloked along the traok in an uptown direction, and said oars were approaching Julia Street at a moderate rate of speed, and defendant's flagman al pal lad -plalptlff to atop which he did. at a safe dlstanoe from said track. Answering further’, the flagman did not walk away there after, hut hearing a wagon approaching from the other side the flagman turned hie baok on plaintiff to signal said wagon to ooms to a atop;, that plaintiff started the automobile forward and attempted to cross just In time to have ■ the automobile struck by the on coming up out of care. Defendant claims further, that the flagman in question did all that was possible and proper in the premises, and that the accident was caused solely by plaintiff's disregarding the warning given by said flagman; denies that the flagman was guilty of any negligence or duty in the premises; denies that said flagman walked away from the tracks as alleged; denies that the flagman failed to request plaintiff not to make the crossing; denies that said flagman was in any way guilty of negligence, denies that the foreman was not attending properly to his duties, that he was away six hundred feet from the orossing or that he was in uqmUi anywise guilty of negligence in the d/

Defendant avers that it exercise all oare and deligenoe under the circumstances and did nothing to contribute to the accident; admits that the crossing is frequently used by vehicles and pedestralns, and prays for a judgment in its favor.

it A careful examination of the evidence convinces us that the accident which oaused the damg'e was in nowise attributable to plaintiff and that he did everything that a careful and prudent man should have done under the circumstances.

tPlaintiff testified, that he had crossed these particular tracks two or three times a day* for the pact twenty years, and he acted no differently on tris occasion than hr had on similar previous occasions, and that his interpretation of the flagmans attitude on the day of tnis accident from his previous experience at tne crossing lead him to believe that there was no danger to be apprehended from crossing the tracks at that particular time.(See Transcript,page 8, plaintiff's testimony.) His testimony convinces us that the action of the flagman which is supported by two witnesses who were in the automobile at the time of the accident, that plaintiff, when the flag was put down by the flagman, had the right to do just as he attempted to ao, that is,cross, and that he was stopped .unen the flagman turned his back looking for the approach of a wggon and therefore left the place he had in charge in order to perform other duties and left free to plaintiff to orpss at the time that he did; were it not for this, we are convinced from the testimony, that plaintiff would not have attempted to have crossed and the accident, therefore, could not and would not have occur--rod.

Tnilst it is true that the flagman, Smith, swore that he did his duty in flaglng plaintiff's automobile in order to prevent him from crossing the tracks at the time of the accident, and while it is true that some of defendant's witnesses also testified t.'.at tney saw Smith flag, the automobile,none of them deny that his back was turned when plaintiff started to cross tne tracks, but on the contrary, from all t,.,c evidence in this case, we are convinced that the flagman absolutely and utterly failed in performing the duties required of him.

His Honor, the Judge of the lower Court a sur and heard the testimony and was of the opinion that the aooident was due solely to the negligence of defendant, (Trans, p. 17.)and under the Jurisprudence of this State we are not disposed to say that he erred.

Harrison -vs- Goldburg, 133. La. p. 389.- Schwartzburger -vs- Schwartzburger, 138 La. p. 924.

"It is a general rule that a person who by his fault causes damage to another either by his act or by his neg--llgenoe, imprudence or want of skill, is obliged to repair same.* Wells -vs- Johnson. 53 La. p. 733. Lang -vs- Illinois Central R. R. Co. 115 La. p. 887.

Judgment Affirmed.


author: CHARLES P. CLAIBORHE, JUDGE.

text:
    Charles 3P« Claiborne, Judge.
    WIDOW A. M. E. CRANE VS. GEORGE SLADOVICH
    No. 7680
    January 26, 1920.
   CHARLES P. CLAIBORHE, JUDGE.

This is a suit to recover from the defendant an unexpended balance of money deposited in his hands for expenses of suit.

The plaintiff alleges that oy a written contract dated December 1915 she employed the defendant George A. Sladovich and Jose A. Morales, attorneys at law, for the purpose of recovering certain lands described in the contract; and for this purposd she agreed "to cover the first expenses not to exceed $300"; that accordingly, on December 18th, 1916, she oaid to Sladovich and Morales $150, and thereafter they obtained from her further money; that the suras advanced by her to them amount in all to $370.75; that xne said Sladovich and .Morales filed in her name in the Civil District Court a suit which was dismissed on an exception of no)C cause of action; that all the costs oaid by the defendant amount to $36.05* and he owes the petitioner the balance of $334.70; that for reasons of her own she discharged the said Sla.dovich and Morales, and caused their names to be stricken from the docket as her attorneys; that ¿¿orales has accounted to her for aoney received by him and she has released him from further liaoility to her*-; and she prays for judgment fdr $334.70 against Sladovich.

The defendant admitted the contract sued on, but specifically denied all the allegations contained in the several paragraphs of plaintiff*s petition; he further alleged that he had been dismisnei "for no^ good cause or reason'whatever^.

There wad judgment in favor of plaintiff for the full amount claimed, and the defendant has apoealed.

The plaintiff had the right to discharge the defendant as her attorney at any time. In the case of Gurley vs. City of New Orleans, 41 A., 75, the Court said:

"A contract for the services of members of the legal profession is not a hiring of labor, but a mandate. A principal has the right to revoke powers of agency given oy him for an indefinite period x x x such power to revolee a.id such contingent forfeiture are implied in such a case”. But if this is not the law of the case, Sladovich was dis-

missed with hi* own consent, for, in a letter dated March 29th, 1917 addressed oy him to the plaintiff, he says to her:

"Whatever you will suggest or decide at will he fully satisfactory to me; T will fully abide "with wishes of you all, even if you would decide to select another attorney, if not satisfied with me",

''•Ve h?,ve nothin.; to do with the question of compensation which -night or night not be due these attorneys, as that issue has not oten raised iu this case. The only questions are how much nas the plaintiff paid the defendants, how much have they spent, and what j.s the balance due by the defendant to the plaintiff.

Com lercial partners are such as are forced for the purpose of buying and selling personal property and for carrying personal property for hire in *hips oth*r vessels. C.C. 2325 (2796).

Ordinary partnerships are all such as are not commercial. C.C. 2826 (2797) .

"A law partnership is an ordinary, and not a commercial one. The partners are bound jointly and not in solido". Dyer vs Drew, 14 A., 657.

Therefore, Sladovich can be made liable only for one half of what has been received by him and Morale* jointly, and for the whole of what he has received individually.

The plaintiff has established oy checks drawn by her to the order of "Geo, Seldomioh and J, A. Morales"^and by them indorsed individually, that she paid to then the following sums:

December 18th, 1916 ^ Í 150.00

" 30th, " 50.00

leaking a total of $ 200.00

And that she paid George Sladovich by checks drawn by her to his own ord-r and by him endorsed the following amounts!

January 8th, 1917 Í 50.00

» 22nd, " 36.00

March 6 th, " 50. 00.

//3¿7°* And that at the request of Sladovich, she paid !De Poincy 15.00 Total $ 150.0Ó

Making a total' of ^¡350*1*1 all*

In a letter dated, Mar&&v29th*-1917 addressed by Sladovich to th« plaintiff he says;> - *

"As you haveftalrtsii. already $300* I will have to spend now my share, or better to say, #i« same amount of §300 and deposit my money of $600 with the Court".

Again, in his testimony, Sladovich says that he and Morales received from Sirs. Crane $300, and that she paid about $70 to other parties.

The plaintiff has therefore established with certainty that she advanced Sladovich and Morales jointly $200.00

and Sladovich individually $135.00

and De Poincy $ 15.00

Making a total of: $350.00

or $50 more than she agreed to advance. Plaintiff does not testify to any other item of payment made by her.

Of this item of $200, Sladovich and Morales are entitled to the following credits: They say they paid IToolt for researches préceding the filing of the suit $50; Ubolt says it was $75 or $100; we shall fix it at *75. They are also entitled to a credit of $35 paid to J. A. de Poincy. for investigations', leaving a balance due oy them, on that item, of $90. But they owe the plaintiff $50 for money paid by plaintiff in excess of the amount she agreed to advance - making *140 or §70 each.

- They are not entitled to any credit for the costs of Court of $36.05, because Morales testifies that he paid them out of his share of the money advanced by Mrs. Crane. Saidovich claims other credits, but his testimony is vague, uncertain, and in some instances incorrect, and in the main in contradiction of his sworn answer. This fixes the oalance due by Sladovich at $135 plus $70 or $205.00.

It is therefore ordered that the judgment herein be reduced from Thres Hundred and thirty-four 70-100 Dollars to Two Hundred and Pive dollars, and as thus amended that it be affirmed. Costs of appeal to be paid by plaintiff.

January 25th, 1920.


author: CHAHEES F. CLAIBOBHE, JUDGE.

text:
    CHARLES F. CLAIBORNE, Judge.
    JOSEPH V. FERGUSON VS FRANK ROUSEO
    No. 7681.
    February 9th, 1920.
   CHAHEES F. CLAIBOBHE, JUDGE.

This is a suit for the price of hay sold and delivered to the defendant, and a reconventional demand for injury done to animals fed upon the hay hy reason of its had quality. The bill sued on is composed of several items dating from August 21st, to Kovemoer 17th, 1919, amounting in all to $680.37. The last item is for $26.06 and is the cause of this litigation.

Defendant denied that he was indebted to the plaintiff; and^assuming the character of plaintiff in reconvention,he averred; that he was engaged in the livery business and sale of horses at auction; that on October 11th, 1916 he purchased two car-loads of good quality hay from the plaintiff, one car at the price of $11.50 per ton^ and the other at $12.50 per ton; that he purchased the hay fox the purpose of feeding his horses; that he hauled the first load of hay from the railroad to his stable and used it; that on October 23 he hauled a part of the second car-load of hay to his stable, and, in the usual course of Dusiness, fed said hay to his horses on the evening of said day; that on the morning of October 24th, he found his animals sick and lying on the ground; that he immediately called in a veterinary surgeon who pronounced that the horees were rendered sick frora'having eaten that hay which contained forage poisoning; that^as a result of said poison^six horses died and fifty remained sick from October 22d, 1916 to October 30th, 1916; that the six horses had cost him $924.00; that the remaining fifty-nine horses in his stable remained sick for nine days; that it cost him $318.60 to feed those horses during those nine days; that in commissions as auctioneer and loss of profit on the sale of those horses he lost $600; and paid the veterinary surgeon $10.75; making a total loss of $1853.35 which he claims against the plaintiff.

The District Court rendered judgment in favor of plaintiff for the amount claimed oy him less 426.06^the price of the hay used by defendant which had generated the forage poison, and rejected the reconventional demand.

The defendant has appealed.

The facts of the case are as follows:

The plaintiff- is a whdlesale dealer in hay aid grain; the defendant's occupation is 3et forth in his answer; he has been in the business about 20 years; he had been dealing with the plaintiff for more than two years; he always bought a lo* quality of hay; about the middle of October the plaintiff received some hay from the Texas Pacific Railroad; it was in bales, and was unloaded from the cars and put under the railroad sheds; all hay is sold from that place; the defendant sent up to the sheds where the entire car was unloaded, and hauled to his stable the hay he had bought^being a car-load of Les-pedeza hay, at 412.50 a ton; it was a lot OJ^ ordinary cheap Hay of the low grade usually bought by the defendant; sjtch hay was then worth 417 or 418 a ton; a car-load is about six and a half tons, divided into bales of 65 or 70 pounds each; or 30 bales to the ton; the defendant hauled away about four loads or 100 bales; there was no evidence from the outside appearance of the hay, while in bales, that it was in any way damaged^and defendant did not see any:

"the first opportunity that any one could hare of discoverjmt whether the hay in the interior of the bale contains mould or not is when the bale is broken open for the purpose of being fed to the stock";

the defendant does not raise hay, nor does he bale it; he buys the hay from growers or dealers already baled; he did not know that the Dales he sold to defendant were damaged; the plaintiff knows good feed when he sees it; he has been feeding horses for 20 years; on the same day on which the plaintiff hauled the hay to his stable, a stable-boy in his employ and under hie instructions and in his presence, - opened up some of the bales and put the hay in the rqcks-; the boy died prior to the trial of the case; the next morning the plaintiff found some of the horses down and others sick, and sent for a veterinarian; he found the hay mouldy or spoiled, produced possibly by dampness; the hay had made the horses sick; the feeding of such hay to animals might bring on death within two or three doyB; this condition of mouldy hay ie apparent to the naked eye after the hale is opened, and may ha detected hy a person of ordinary experience and does not require an expert; that mouldy condition may happen in the best quality of hay; it may not he apparent, on the outside and yet may exist in the interior of the hale; hay at $12 a ton was of the cheapest kind and should not he fed without inspection; mould in hay will produce ptomaines or f orage poison or cerehro-spinal meningitis in animals, or gastro-intestinal enteritis, or an inflammation of the stomach and intestinal•canal; blind staggers or stomach staggers is one and the same thing with forage poisoning; there are several forms of mould and the majority of them are harmless; mouldy hay may oe fed without oad results on several occasions, and the last may cause any amount of trouole; the person feeding tne mouldy hay takes the chances.

The evidence satisfies us that the onles of hay were, on the outside, as far as theqre could see, in apparent good condition, and that the mould existed in the interior of the bale^and could he detected only after the hale had been cut open and the hay shaken out. Plaintiff, therefore, can get no protection from Article C. C., 2b21 (2497) which reads as follows:

"Apparent defects, that is, such as the buyer might haw* discovered by simple inspection, are not among the number of redhioitory vices"•

Defects which can only he discovered by_ opening boxes or barrels, or packages, or oags, of wmi1 swing gorfds are latent. 9 La., 134; 4 R., 382; 3 A., 4, 379; 7 A., 242; 132 La., 328; or oolts of textile faeries or cotton bales. 44 Dalloz Rep. Leg. p. 61 c> 85.

Therefore these defects were sufficient to entitle the defendant to demand a rescission of the Bale of the hay. But thie relief he has already obtained. The plaintiff has taken back all the hay he had sold to the defendant and which was not used by him and has given him credit for it; and the judge of the Distriot Court has rejected plaintiff's demand for üie price of the hay used ey the defendant, - and plaintiff has abided by that judgment.

The defendant is not entitled to reoover upon his reoon-ventional demand for two reasons. The, hay he bought was of an inferior quality and, according to the testimony, he tools: his chances in feeding it to his horses, without a previous inspection* If the damage in the hay was not apparent as long as the hay was in hales, it became apparent the moment the bales were nut open and the hay was shaken to oe put into the' racks. The defendant was present when the rack were filled; but if he was not, he is bound by the negligence of his stable b<nr. 33 A.. 136£. By the exercise of reasonable care the plaintiff^could have discovered that the hay was mouldy and unfit for feed.

It was negligence on the part of the defendant to have fed the damaged hay to his horses for which he alone must suffer; it would be contrary to every princip^^f law to hold the plaintiff responsible for the defendants fault.

But tire have seen that there was nothing in the appearance of the bales to indicate any defect in the hay, and that the plaintiff was not aware of any defect in it, and that the opportunities of the defendant to inspect the bales and the hay were the same as those of plaintiff^* Under this state of facts the law is clearly laid down in our Code and in the decisionjof the Supreme Court*

C. C. 2531 (2509):

•The seller who knew not the vices of the thing, ie only botfcnd to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits which the purchaser has drawn from it, be sufficient to satisfy those expenses"* C, N,, 1644, 1646.

C. C., 2545 (2523):

"The seller who knows the vice of the thing he sella and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages"* C. Ef., 1645*

In the following cases these articles were interpreted as meaning that the purchaser who is disappointed in the article he has bought has no other remedy than the action in redhibition or for diminution of the price; he hae no action in damages against the vendor unless he charges him with knowledge, expressmor implied of the vice of the thing sold* 1 A., 389; 3 A., 655; 114 La., 498; 44 Dalloz Rep. Gen. p. 77 & 151; 153, 154; 17 Baudry-Lac 373.

As early as 3 La., 331 (1832) the Supreme Court said:

"This article (2531 - 2509) would have been applicable to the present case if the purchasers had stood to each other in the simple relation of seller and purchaser, as if the appellee had been a merchant selling an imported mill.
The parties would then be presumed to have had equal opportunities of viewing the thing sold and to become acquainted with its good and bad qualities, and neither of them wouldi have been bound to be better acquainted therewith",
7 La., 261.

In 9 R., 351, the Court said:

"The good faith of the vendor may exempt him from damages, but not from the obligation to return the price".

And in 1 A., 28:

"When the seller is ignorant of the vices of the thing sold, he is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing. C.C., 2509. The costs of suit, fees of counsel, and funeral expenses, are not included among the charges to which the seller is, in such cases, subjected. It i-s only where he knows the vice, and omits to declare it, that he is. answerable in damages. C. C. 2523. In the present-instance no such previous knowledge is alleged in the pleadings, and we think none was proved on the trial". Affirmed in 2 A., 748; 7 A., 243.

In 7 La., 261, the Court said: A merchant who sells a sugar mill is not responsible for defects in it, unless he knew of their existence. 19 A., 421.

In 33 A., 1368 the Court said:

"A careful analysis of the testimony aoundantly proves that defendants, who were not the manufacturers of the goods thus sold by them, were perfectly and honestly ignorant of the defects of such goods, of which they had no more occasion, or better means of judging than plaintiff or his oroker; &c " .

In the case of Doyle vs. Fuerst & Kraemer, 8 Ct. App., 408; 129 La., 383 - quoted "by defendant, the defendants were the manufacturers of the poisoned calces which had made the plaintiff siclc. In such cases the manufacturers are charged with,implied knowledge of the vices of the things manufactured and sold ty them. 114 La., 498; 44 Dalloz Rep. Gen. 79 & 160; 2 Benjamin Sales, p. 650 & 872 A ; 24 Laurents 295.

See also 2 Benjamin on Sales p. 653 & 877, 883; 'jtory on Sales & 366; 35 Cyc., 406.

It is therefore ordered that the judgment herein he affirmed.


author: St Paul J:

text:
    By Ht» PauiJ;
    No. 7684
    Planter's Cotton Oil Co. vs W. F. Klumpp
   St Paul J:

IIiIb is a ulaim for damages for alleged breach of contract Defendant oougnt of plaintiff for future delivery, £00 bales of ^"mill-run cotton linters, made from clean, iound seed, and free r from country damage -- subject to inspection and acceptance by buyer’s representative."

When the time for delivery arrived, defendant sent an experienced inspector to examine the Winters as tendered, and this one inspected and sampled them in the usual way, and in the presence of plaintiff’s representative. He pronounced them not up to grade, i.e. not clean "on account of paving sweepings in the bales and Doing nappy and moty;" and ne therefore rejected them.

I

(There was evidence introduced Dy plaintiff, over defen-uants oojeetioiijtnat "parol evidence was inadmissible to vary or .contradict the written contract,” tending to show that the linters were fully up to grade, and even above; and incidentally that the market price of lintera had declined between the purchase and the tender.

II

If the purpose of this evidence was simply to show that tne iinters were up to grade, and therefore should not or could not have oeen rejected under tne contract, tnen tn« oojection was (substantially) well founaed; since it was wholly irrelevant to the ' only issue involved, as .vili hereafter be shown. ffor the oojection must of course oe rts^a in-the light of tne ana ver; to wit, that defen dant, "having purchased subject to inspection add acceptance", ana having actually inspected and rejected (in good faith) could not t • be compelled to receive the Iinters '/mien, in his Judgment (honeatiy ,Zeroised) "were not of the grade stipulated', and wnich in that reaped at least, did not meet "the requirements of-the contracts

In seeking the meaning, and weighing the merits, of an objection to evidenoe, oourts should not hang upon the bare words used, and- by narrowly adhering to them miss the true and evident meaning of the pleader. As. with other pleadings, it suffices if the words used "enable the oourt to see the meaning"(4ljdyu p Vo, ana notes 2S5&94)

If on the other hand, 'the purpose was to show that defendah rejected the Iinters arbitrarl^fgn.>iwe the market had declined, ^then we can only say that such evidenoe, standing alone (as it does) will not suffice to establish what, in effect,, amounts' to a - charge of bad faith on the part of defendant; for fraud and Dad faith are not to be presumed lightly. We are satisfied that in this case there was only an honest difference of opinion.

Ill

The contract herein sued on is subject to one £©=-three interpretations:

Is By attaoning slight importance to that clause of the contract r eading, "suoject to inspection and acceptance oy Duyer's c.v representative”; that is to say, by disregarding^ expunging these A words, we might reach the very obvious conclusion tnat tne contract called simply for "Jei£l~run cotton linters, ¿mac' from clean, sound seed, ana free from country aamageVj/

Z: Or, by aahereing grossly to tne naxea words, "subject to inspection and acceptance by Duyer's representative,” we might give the contract the very harsh construction that defendant might arbitrarily dissolve nis own obligation: and tn-at though plaintiff nad meant to oind itself in good faith, yet defendant nad not meant ot oind himself at all, and hAD *10T ])0i£3 oO.

Z: Or, oy retaining tne .70rds "subject to inspection and inspection and acceptance, oy npyer's representative,” and giving tna an^ interpretation consistent witn law ai*d equity, ana custom and «- common sense, w« mignt reaeh .vnat ve oelieve to have oeen the true intention of th* nnrtias.

IV

We uannot expunge from a contract words deliberately put into it oy the parties thereto, and therefore presumably intended to have some effect, when the words themselves are capable of receiving a meaning not destructive of the contract itself, aafcd tending but to mollify the obligation thereof. To expunge them would be to mags a contract not to interpret one; and hence would oe beyond the judicial power, whose functions extencjao\ further than to interpret and enforce the obligations whicn tne parties tneinselves have stipulated for on one side and undertaken on the other. This is too elemintary to permit bringing forward of authority.

V

We cannot give to tne contract tnat harsn construction wnio. would give the defendant tne the right to withdrew from it aroitrnily, tnat is, by the sole exercise of nis will. ifor tne parties evident ly meant to eriíer into some find of binding agreement; aud to iive their agreement tnat Construction^would oe to strangle it at its Very Dirth.

Our own law on the subject is statutory. ¿very obligation •is null, la/hioh naa been contracted upon a condition dependent for ife napperiing \ solely on the exercise of the obligors will C. 0. L0o4,

And tne general l'>w is quite co the same effect, viz, A promise whicn is made conditional upon the will of the promissor is of no value; for one who promisees to uo a thin,? only if it pleased him to do it, is of course not oound to perform itA (90yo. 1. ¿16,& notes ¿--4; Verbo; contracts)

It is therefore the manifest and imperative duty of this ■ court to see* some interpretation,wwhich wnilat it leaves intac^ and gives eifect to, the very words used oy the parties, yet at the same time respecta tneir evident ana expressed purpose to give some ¿ind of binding force to the agreement itself. £hus, wnere an agreement is ousceptiole of two meanings, one of which^uphold and render it «/alia as a contract, and the otner will destroy and render it invaiid^ceagposit ,^ut res maj is valeat auam pereat". Oyyc. p 5b6, and note o4; Verbo, contracts. also Steppach vs Norms, 7 Orleans App. 214).

VI

And tnia agreement is capable of receiving an interpretation which will both give effect to the 7orus used and at tne oame time save tno binding fo-rce thereof intended by the parties. ü'or j^conclua aion reached in good-iaith uy tne e^rdse of one's judgment on a particular matter, is not dependent solely on one’s will or pleasure.^ hence a contract with a condition which depends on a bona fide exercise oi judgment oy one of the parties about some of tne particulars, is not open to the objection tnav it depends on an event -which rt is within the (lavful) power of that party to prevent; Sheppach vs Norms, 7 Orleans App. 214.

Accordingly in contracts in which the promiasor agrees to pay for goods , or laoor, "providea^/ie is satisfied," the obligation is binding. But there ia auaolute unanimity of judicial opinion tnat the promissee is "nrautially deoarred from questioning tne decision of tne promiasor, or investigating it3 propriety." For the courts refuse to say that ne can oe compelleu to pay on that someone ilse is satisfied; since they recognize that in matters Sf taste or judgment there is no absolute standard. (S^yc. das, ano notes 6-16 Verbo, contracts).

■Hence in a oomewnat similar case our Supreme Court nas decided tnat '/mere the juagment of an architect in the emplo^kf one one of tne parties, was to govern in interpreting tne specifications, 'i.e. in determining wnat material and workmanship would be satisfaota^'^ and acceptable, etc., nis opinion “^based on knowledge-of the situation and honestly given" is oonoiusive (that ia to say,in tne aD3ence of fdUhd or groa3 and palpaole error) Carre vstfeijp, loo la. Co, to, W.ábaUi (U-Aw-életUíorv, /Jór2S<d.

7 It

It ia ur^ea tnat in Jochams vs Ong, 45 An 1289, our ¿uproiuc court tooic a uifferent view of a. sonewnat similar contrast* '.V« do not|thinn: so. In the first placa tnat case ninfea entirely upon unotner point, to .vil, .vnetner defendant was or was not justified in refusing to accept a delivery; which in turn ninged upon the question whitner sucn a delivery was or -was not to invest him with the right to sell. But the question in this case 414 not, an4 ooul4 not arise in that. Thus the' 4efen4ant hai bought’, oertain cement on oón4ition that he would be "satisfied by a test" that it was of a oertain strength. He himself, then sent samples to a person of hi3 own selection and competent make the test; and that expert (his own chosen representative) found the samples fully up th the requirements of tne contract. So.that that feature of the recitals given by the court, was iither striotly narrative or purely "a propos de bottes," for it weighed not a feather's wéight in the decision of the case, and was not even involved.

VIII

Of course tnis contract, having oeen entered into in tne State of Texas, must be interpreted oy the laws of that oommonjwealth; but in the absence'of some statute or particular jurisprudence from that jurisdiction we are bound to assume that the law there is tía tne same as in our own, or at least, that it does not differ from tne general jurisprudence prevailing here and elsewhere.

Two decisions of the Texas courts are called to our attention, which are said to establish a different rule. But to us tnis does not appear. Thus, in Taussig vs Tobacco Growers' Ass'N, 128 S. N. Rep 444, no more was decided than that where goods were sold .simply of a certain grade, the purchaser could not require sometning additional to satisfy nimself; the rigat to reject after inspection because unsatisfactory to himseli/was not given in the cont» raot# ¿0 that ,no. application whatever#

Aaron vs Smith Co, 100S. W. Rep 347,, involved a sale of sugar Cor future delivery* 1‘he seller was to furnish samples and if these pi'cvod unsatisfactory to the buyer, sa.:.e should be submitted to arbitrators. Thereafter (it was claimed) the ter«.3 of the contract ■•/ore changed, whereby the seller was simpj.„ oo guarantee that tne sugar should be of tne quality called for by the contract. The court held that the change (if made) dispensed with tne naeoessity of submitting samples, add^ihenoe) if the si-g r wo up to grade it was breach of contract to refuse to receive it. And the issues submitted to the jury .vero therefore, t\ .Vhether sucn a change was actually made, and 2: 'Vhether the sugnr tendered was up to grade. 3ut tile cour.t did say, "If thiá change in the contract was made-we think that necessarily it would require the sugar to be received without such samples. If samples-were to be sent to the purchaser and examined by him, and in case of disapproval by him (re-examined) by the arbitrators, there would nave been no necessity for the guaranty. " tíee p. Í54H, Oodjs, in fine. u'rom which we conclude that the Court of civil Appeals conceived the law of Texas to be no different from the general doctrine above stated (.Section "S3)

IX

Hitherto we have not made mention of Article 2400C. reading as follows: "Tilings of which the buyer reserves to himself the view and trial, although the price be agreed upon, are not sold. until the buyer be satisfied vvitn the trial, which is a kind of suspensive condition of the sale."

Indeed we were loath to interpret a Texas contract by any statute (perhaps a purely arbitrary on») of another state, on the theory (and the only justifiable one) that the statute had entered into the contract from its inception; for we are dealing not with a remedy but with a substantial ri^ht acquired by contract. nence we preferred to proceed upon principles universally accepted.

But lest it be thought that we adopt the contention (or suggestion) of defendant, that until acceptance, i.e. approval, of of the thing sold ( iiat^the contract) by the buyer "no obligation exists and the contract is without effect," we take occasion to say that our statute is not to be so interpreted. For whilst it declares that the thing is not sold until the buyer be satisfied, it very distinctly indicates that this satisfaction vel non must resuljr from a trial "which (satisfaction wel non after trial) is a kind of suspensive condition of the sale."

Now the authors of.our cA&e knew full weil the difference between the potestative condition, which depends on the sole will of a party and emasculates the agreement ^(J. C. 2024, 2034, 2035^) and the suspensive condition, which merely’holds it in abeyance (S.C. 2043) : and therefore when they made use of the latter term in declar ir„g the tiling not sold, they meant simply that the effect of such a sale should be regulated, riot by articles 2456 and 246^0.0., but by article 2044^/.,. ; to wit, that tne thing thus sold does net become at onc^ the property of the ouyer so as to remain in the meanwhile at the buyers risk; but that on th* contrary the sale is not yet üompleí¿p* and perfect, and thus the thing continues 3till the property of the - - \ r * ' • feller and remains at his (thejeot however to his obligation to deliver it if the buyer oe satisfied with the trial. See also C.Ü. 2453, 2459. . Of course' if tne seller refuses to allow the trial, or the ouyei refuses Lo mame it, there is then a breach of contract, which at once* gives rise to a claim for damages'. Rightor vs Aleman, 4 Rob 45; Steppech vs Worms, 7 Orleans App2l4 .)

¿o that a purchase made subject to trial and approval is not a mere nudum pactum, but does engender between the parties a binding obligation (though not perfect sale) for the breach of which oy either side courts will afford a remedy. In other words, Article 2460 C.C, is nothing but the announcement in statutory form of the principle of general law set forth in Section JTI^oC^.this opinion and carried-into our head-notes as Nos.' 4and 5. -See Dalloz, C.N. Art. 1588; Baudry - Lacantinerie, Vol, 17 Nos. 154, 157, and 164, to 171.

X

Holding these views, we tninic the judgment of plaintiff's represe .tative (whose compehenoy^there is no reason to dou'ot) must A-prevail; that by the terms of the contract plaintiff cannot^com- . pelled to accept the opiüjion of others, no matter hov competent or how disinterested they he.

The judgment appealed from is therefore reversed, arid it is now ordered the plaintiff's defiand he rejected at its costs in botn / ' courts.


text:
    STATE EX REL CHAS L. HOLMES VS ARMSTRONG DONALDSON, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   0 P I II O I,

St. Paul, Judge.

The relator accepted an offer by (one of) the respondents to purchase certain real estate. The respondents registered their offer and the acceptance thereof, as they had ^ right to do. Barfield vs Saunders, 116 La 136; Lehman vs Rice, 118 La 975.

Thereafter the relator agreed to sell the same property to a third person, who likewise registered HIS promise of sals. Respondents then called upon the Relator to oomplete the sale by the execution and delivery of a clear and unincumbered deed to the property, or in default thereof to return double the amount of the deposit which he (relator) had received; the one or the other of which relator wa3 legally bound to do.

C. C. 2462, 2463.

the But relator failed, neglected, refused or was unable to do either the one or the other; and instead thereof, sued out this Mandamus to compel the Register of Conveyances to cancel thconscription of Respondents, offer to purchase, as "being withour any legal force and effect, and not authorized by law." The petition makes no mention whatever of the acceptance of said offer, counsel being then unaware of such aooeptanoe, which though of record ha el escaped his attention.

II

The Relator having thus repudiated his obligation to make title to respondents, the latter thereupon brought suit against him ior damages jEor breach of contract; to wit, for double the amount of the earnest money he had received,. as they had a right to do. Legier vs Braughn, 123 La 463. And the record of the last mentioned suit having been introduced in evidence on the trial of this mandamus, it is now argued that this enlarged the pleadings; and that since respondent has elected to olaim damages instead of demanding speolflo performance, the whole matter now resolves itself into a simple olaim for money, and the promise of sale has no longer any place on the conveyance records.

III.

As we have said, the promise of sale was properly registered. And if respondents had a right to register the contract at all, then necessarily the registry thereof must stand until the obligation thereof be extinguished, sinee the purpose of registry is precisely to render effective that very obligation.

But if a promise of sale be binding at all, it primarily binds the promisor to complete the sale (0. 0. 2462), from which he may recede only by returning double the earnest money received by him (0. C. 2463). Hence the obligation to sell fif It ever existed) cannot be extinguished except by performance, or by return of double the earnest; mo^J; and until that obligation be extinguished the registry must stand.

We have been careful to 3ay only that relator is apparently bound by his promise of sale.'This is because we are speaking only of what appears on the face of the paper itself. Of course we know nothing of the merits of respondent’s claim", which neither does nor can arise in this case. State ex rel Drew vs Myatt, 122 La 974; Willis vs Wassey, 41 An 694; Raymond vs Villere, 42 An 488.

The judgment appealed from is therefore affirmed.

New Orleans La, February 1920.


text:
    No. 7687.
    Court of Appeal -- Parish of Orleans.
    Max Rau -vs- Mrs. A. O'Herda
    Ey Dinkelapiel. J.
   Plaintiff instituted this suit, claiming that he had sold and delivered to the defendant merchandise representing a total -mount of (500.00, on which he had received ¡¡500. Gv, leaving a balance aue by defendant of -5300.00 which she failed to pay, notwithstanding frequent amicable demand; and averring further that he feared that defendant would either send the property in dispute out of the jurisdiction of this Court or conceal, part with or dispose of said property during the pendency of this suit, and having a vendor's lien and privilege upon the articles named, a writ of sequestration was necessary to protect his rights in the premises.

ile grayed that, considering his affidavit and bond to be fixed by the Court, a writ1of sequestration is&ue, commanding the Civil Sheriff of this Parish to sequester and take into his possession The articles enumerated in his petition, and that after due proceedings had there be judgment for his claim of ('200.00: that the writ of sequestration be maintained with recognition of his lien and privilege as vendor upon the property thus sequestered. He annexes his affidwit, together with the bond fixed by the Juu&e ar.d an order of sequestration in due course was issued and the property claimed seized under said writ.

Subsequently the defendant filed a rale to uismiss the sequestration and the »uit based u^on the ground, "■chat the affidavit on which the sequestration issued was false and untrue".

A íule to show causo".<h% said writ should not be dissolved, with (25.00 attorney's fee*, with reservation to sue for any damages she may have suffered”.

l.Tuoh testimony vías taken on the trial of this motion, which under the circumstances and- the law of this case, in our opinion, was absolutely and totally irrelevant and unnecessary, being contrary to the Code of Praotioe Art. 275, as amended by Act ISO of 1912, wherein it is provided, "The fact that it lies within the power of the defendant to conceal, part with or dispose of the movable in his possession, during the pendency of the suit, shall be deemed sufficient to justify an affidavit by the plaintiff, for the purpose of obtaining the writ of sequestration, that the defendant will so conceal, part with or dispose of the property in question." 10 Ct. of Appeal, Philip Werlein, Ltd. vs. Michael Lofas, p. 280.

The law and the authorities now in existence are that in oases of sequestration the party is not bound to swear to or to prove any other grounds of fear than the simple fact that he has a privilege and that it lies in the power of defendant to aefeat or destroy it by doing some of the acts which he swears that he fears he may do.

'.'.■here a debt is not due, possibly considerations £:i_ht arise. In our opinion, it is sufficient for plaintiff in this suit to prove the existence of the debt and iiis privilege or vendor's lien on the property which was subject of same, which evidence in connection with his affidavit that it lie in the power of the defendant to conce-l, ¿...rt i.ith or aispuse of the movable in her possession during the pendency of this suit; hence, plaintiff's sequestration should have boon maintained. Revised Code cf Praotice Art. 375, Seo. 8, as amended by Act 180 of 1913.

This allegation having been abundantly proved by plaintiff in suit, the Judge of the court a quo erred in making the rule absolute, dissolving the sequestration which should have been granted to this plaintiff. Ordinarily jfe would- have gone no further into this matter after finding that the sequestration should have been maintained the.usual course being for us to have remanded this suit to JfS" further proceeded with in accordance with our decree Put the Judge of the District Court having admitted at the trial of the rule to dissolve testimony which actually resulted in a trial of this cause to its merits, ■«e deem it our duty to take judicial notice of that testimony as contained in this record and no good cause could be served by remanding this case, which would simply result in the same testimony being adduced, putting both plaintiff and defendant to additional and unnecessary expanses.

An ex-mination of this evidence convinces us that tnete viere two separate contracts of sale entered into between plaintiff and defendant; the first by written contract commencing August 13, 1S18, by which defendant purchased furniture of plaintiff to the value of Í300.00 under terms as sot out in the contract filed in this cause. The second «as a verbal contract executed about October 8, 1918, under which she purchased additional furniture to the value cf 5300.00. As to terms of payment, witnesses differ. But we are convinced that the first contract had been completed and all payments made thereunder by the defendant, and that the furniture, which v/as the subjeot thereof, was her property at the time the sequestration v/as taken out, and, therefore, that this particular lot of furniture was wrongfully sequestered and seized by plaintiff, and said sequestration and seizure insofar as this particular lot of, furniture is concerned must be( «Q008SNM&. But insofar as the furniture sequestered under the second contract is concerned, we are of opinion that plaintiff has made out his case and that he is entitled under the provisions of the Code of Practice as interpreted by this Court, heretofore referred to, that the writ of sequestration should be maintained.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment of the loy/er court be annulled, avoided and reversed, insofar as it sMy s***'#' absolute the rule, dismissing the writ of sequestration obtained by plaintiff herein, Uax Bau, and that there be now judgment in favor of said plaintiff, Max Rau, and against the defendant, •■Irs. A. O'Herda, in the full sum of §200.00, with legal interest thereon from judicial demand until paid, together with recognition of plaintiff's lien and vendor's privilege, Dut only and solely upon the lot of furniture which was the subject of the said second contract, and which furniture is now held by plaintiff under hi3 writ of sequestration.

It is further ordered, adjudged and decreed that there be judgment in favor of Mrs. A. O'Herda and against Max Rau, plaintiff, recognizing her as the owner of the furniture sequestered and seized by the said Max Rau, and which furniture is now in his possession, and whioh v/as paid for in full to the value of §300.00, and was the subject of the first contraot referred to, and that said plaintiff, Max Rau, is hereby ordered to return to said Mrs. O'Herda, defendant herein, the said furniture wrongfully and illegally sequestered and seised by him, reserving the right of defendant for such damages, if any she may have suffered through the wrongful sequestration and seizure of the property described, the ownership of which was and is in Mrs. O'Herda, the defendant.

It is further ordered, adjudged and deoreed that the costs be borne equally by plaintiff, Max Rau, and defendant, Mrs. A. O'Herda, in both courts.

Judgment Reversed.


author: CHARLES 3#\ CLAIPOm*!, JUDGE.

text:
    CHARLES E. CLAIBORNE, Judge.
    TEXAS OIL CO. VS CITY OF NEW ORLEANS
    No. 7689
    February 9th., 1920.
   CHARLES 3#\ CLAIPOm*!, JUDGE.

This is a suit for the reimbursement of a. tax paid error.

This suit vies filed on "day 26th., 1917. The plaintiff alleges that oy an act dated April 28th., 1916 it purchased of Philip G. Veith, two certain lots of ground, and assumed the payment of taxes thereon for the year 1916; that the assessment of said two lots had a]ready been completed in the name of its vendor the said Philip G. Veith; that when the City taxes for 1936 oecame due, in August 1916, petitioner’s agent paid said taxes, not only upon the two lots purchased by it from Veith, end assessed at ¿¿2,000, out also oy error upon 17 other'properties assessed »t ¿'--55,2.00.00 in the name of V.eith and deccrioed on the tax-hi 1.1 in h j s name; chat the tax on the £55,200.00 amounted to the sun of £1,221.00; that the said payment v/as made in error; that petitioner -’»s not pound either civilly or naturally to pay Sc id amount of -caxes r**d ¡nerefore the City of New Orleans is legally oound to reimburse the amount to it, and it prays for judgment accordingly.

Tne defendant ad nit led the payment of (¿1,221*. 00 alleged in plaintiff’s petition, out avvered that the error in the payment was due entirely to the negligence of the plaintiff; that the error ras patent and could have teen discovered by slight attention; that the defendant refused to reimburse the amount for the f ollOY'ing reasons

1st. That suuseijuent to l^e payment of said taxes and prior to the filing of t) is sjit defendant issued to Philip G. Veith a duplicate tax receipt cy which the defendant may oe bound as regards third persons.

2nd. That plaintiff’s error ’-as due entirely to his own negligence, and that with little care it could have avoided the error.

3rd. That the phyment of said taxes wag entirely voluntary.on the part of the plaintiff, and was not the result of demand or compulsion on the part of the defendant.

4th. That the amount of taxes paid by plaintiff had gone into the City Treasury and had been disbursed for public purposes before demand for reimourseraent was made.

There was judgment for the defendant, and the plaintiff ..has appealed. All the facts are admitted.

The plaintiff pitches its case upon the following article of the Civil Code.

Art. £133 .(2199 ). E^ery payment presupposes a debt; what has been paid wi. out having oeen due, is suoject to be reclaimed. That cannot be reclaimed that has been voluntarily giv-/t en in discharge of a natural pbligation. C. N. 1235.

Art. 2301 (2279) "He who has oaid through mistake, believing himself a. debtor may reclaim what he has paid." C. If, 1377

Art. 2303 (2281) "To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural ocligation to pay will be sufficient to prevent the recovery."

C. P. IS " He who pays through error what he does not owe, has an action for the repetition of what he has thus paid, unless there was a natural pbligation to make such payment; but he must prove that he paid through error, otherwise it shall oe presumed that he intended to give."

Hut it has be*\specific&lly held by the Supreme Court of this State that these articles have no application to taxes. In the case of Lisso vs. Police Jury 127 La. 283 the court said ¿n page 285:-

"The learned counsel for plaintiffs predicate- their asserted rigi'.t of recovery upon the articles of the Civil Code 2301 2302 rnd 2303 reguiatim the rights of parlies "-ith respect to payments made and received in error; ?nd in so doing they lose sight of the fact that laws regula tin., th*3 collection of to^Les are sui generis, and constitute a system to whichthe general provisions of the Civil Code have ordinarily or no application". A Quoting 37A. 735 -39 A. 121.

This decision was affirmed in Simpson vs. City, 133 La. 384 (389).

In Tactors and Traders Ins. Co. vs. City 25A. 454 (457) Justice Howell questioned whether Art. 2303 of the Civil Code was,"applicable to the subject of taxation."

Hut even under the Code the plaintiff would not oe entitled to relief. Article 2310 (2288) provides:-"He who through mistake has paid the deot of another to whom he oelieved himself indented, has a claim to restitution from the creditor. This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; out the recourse still remains to the person paying against the true debtor."

The City on''Hew Orleans flakes an annual oudget of the ■j amounts of money required to pay its oonded debt, its contracts, and other municipal expenditures set forth in said budget. In ov-der to pay those appropriations, it levies annual licenses and taxes. There is no item of appropriation for the purpose of paying an amount such as plaintiff claims. To provide for it, it would be necessary for the city either to levy an additional tax, which it has no right to do, or to divert other funds from other municipal purposes or creditors^, t!o the detriment of the latter, which plaintiff cannot demand - 38 A. 119 (123).

He cannot, for his individual oenefit throw tne finances of the parish into inextricable confusion". 107La. 221 (231). - 112 La. 525 (531).

In the same case of Lisso vs. Police Jury 127 La. the court said on page 292:-

" It may be remarked in conclusion, that the assessments here involved were mainly for the years 1900 - 1901 - 1902. They constituted the oasis upon which the Police Jury of the Parish of lmtchitoches prepared its budget and regulated its expenses for each succeeding year; the money collected has Ion*, since beer, spent; and the claim of the plaintiffs, through whose voluntary acts the present condition of affairs has been brought about, that it should now oe refunded to them, tnereoy^eruaps, involving the necessity of imposing a special tax for their benefit, appears to us to be entirely without merit, either in law or equity.

And continuing on page 293 the court said:-

lf It may be that the particular amount claimed by the plaintiffs now before the court can be paid by the Parish of Natchitoches without embarrassment; but the granting of their demands involves an acquiescence in the proposition that every one who chooses to speculate in tax titles and to assume the quality of owner with respect to property which he does not own, which he may readily inform himself that he does not own, but which he may hope thereby to make his own, may do so at the risk of the State or Parish and not at his own risk, A proposition which,in view of the laws regulating tax sales and the collection and expenditure, for government purposes, of money paid for taxes, we are unable to entertain."

In Simpson vs. City 133 La. 384 the syllabus reads "An amount of money, which has been voluntarily and without threat or coercion paid to a municipal corporation as for a license tax legally due, and which has gone into the public fisc and oeen disbursed for public purposes cannot be recovered upon the ground that it was paid in ignorance and error of the law even though the tax was illegally imposed, and // the law under which it was imposed was unconstitutional.

In thus denying plaintiff a right of action against the defendant no injustice seems to be done to it as the law seems to reserve to it recourse against Veith the debtor of the tax.

In the present case the City has issued its receipt for those taxes to the plaintiff herein, and a duplicate receipt to Veith, and the fact of the payment has been entered upon all the books of the city. If Veith has used his receipt in conferring rights upon his properties to third persons, the City^in case it refunded the money received by it, would be estopped from denying the payment of 'those taxes^ at*least as far as such third persons would be concerned.

In the following cases it was held that the party who has made the payment in error cannot recover the amount paid, when the creditor, dtn the faith of the payment, has relinquished snd lost any of his rights. C. C. 2310 . 3 A. 409 (414) 52 A. 965 (967). 110 La. 481 -482. 117 La. 336 - 33 Dalloz Rep. Leg. p. 1211 5551_ 3 ¿4^1- t&J'f $ ^^7

It is therefore ordered' that the judgment he affirmed.

February 9th., 1920.


author:
CHARLES I. CLAIBORNE, JUDOS.
      CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles I. Claiborne, Judge.
    JOHN E. MANION VS MANION & CO.
    No. 7690
   CHARLES I. CLAIBORNE, JUDOS.

When one pays the note of a third party, the presumption is that he owed attempts to recover from such third party the amount of the note paid by him, the burden of proof is on him to show that it was not his debt but the debt of the third party.

Plaintiff's action in such a case is not based on Art. C. C. 2302 but rather on Art. C. C. 2310.

Judgment affirmed.

March 8th, 1920.

CHARLES F. CLAIBORNE, JUDGE.

Plaintiff, a stockholder of defendant company, sues Cí’?"' —- i defendant^ hut they plead in reoonvention a claim of $956.09, representing a note of like amount which def endantipaid in error debt, while in reality the note was drawn believing it to be and due by the plaintiff, John X. Manion, individually.

There was judgment in favor of the plaintiff, John X. Manion^and against the defendants, Manion & Co., for $829.50 as prayed for; and in favor of John X. Manion add against Manion & Co. rejecting their reconventional demand, reserving their rights to the proceeds of the policy deposited by consent.

This is not an action against the creditor for the return of a payment not due, and is not based on Art. C. C. 2302. It is against a defendant who has not received the money, but who has been benefited by a payment made by plaintiff. It is based upon the theory that plaintiff, who did not owe the note, has paid it to the discharge of the defendant, the real debtor, and has thus acted as the agent or negotiorum gestor of the plaintiff; and that the latter must reimburse the def endants^ as he cannot enrich himself at their expense. 31 Demol & 327 p 272; 20 Laurent & 364; 5 Larombiere 648 & 11.

C. C. 2299 (2278):

"Equity obliges the owner, whose business has been well managed,to comply with the engagements contracted by the manager, in his name; to indemnify the manager in all the personal engagements he had contracted; and to reimburse him all useful and necessary eiipenses".
C. N., 1875; 20 Laurent & 329.

C. C. 3022 (2991):

"The principal ought to reimburse the expenses and charges which the agent has incurred in the execution of the mandate, &c".

This action is derived rather from Article 0. C. 2310 (2288) which reads as follows;

"He who, through mistake has paid the debt of another to whom he believed himself-indebted, has a Claim to reimbursement from the creditor. This right ceases if, in consequence of the payment, the creditor has destroyed or parted with his title; but the recourse still remains to the person paying against the true debtor".
C. M. 1377.

In so far as the right of action of Manion & Co. against the InsuranceCiis concerned, its error in believing itself the debt- or of the note was essential; 20 Laurent & 368 p 390, but in so far as its recourse against Manion is concerned, the first question to consider is whether the note was due by John E. Manion, and not by Manion & Co.; because if the note was due by Manion & Co., they would have no recourse against John E. Manion.

Have Manion & Co. proved that they did not owe this note? The burden of proving that they did not owe it lies with them. The presumption that they owed the note results from their paying it; the burden of overcoming this presumption rests on them. 31 Demol. & 284 p 238 & 286; 20 Laurent & 367 p 388.

But let us suppose,for the sake of argument, that the note was not the debt of Manion & Co. but appeared to be due by John X. Manion to the Insurance Company. By paying it, Manion & Co. could only acquire the rights which the Insurance Company had against John E. Manion; and if the Insurance Company could not enforce payment of the note from John E. Manion, neither can Manion & Co.

John E. Manion was manager for Manion & Co.; his life was insured in the Equitable Life Assurance Society for $50,000.; the policy was payable one half to his heirs and the other half t.0 Manion & Co.; John E. Manion issued his three promissory notes for 1963.35 each, payable at one, two, and three years, representing one hall of the premium of each year; this note was signed in concurrence with an agreement concerning the policy. This afireement was made between T. P. Thompson, representing the Insurance Company, and John X. Manion. No one else knew what that agreement was. John X. Manion testified that he furnished these three notes as President and Manager of Manion & Co.; that the notes were signed by him individually at the request of Thompson to correspond with the policy; that they represented one half of the amount of the premium due by Manion & Company for their interest in the policy; that he was not to pay any premiums at all for his share; that his share of the premiums was to be paid from the dividends accruing after the third year; that it was the consideration he was receiving for insuring his life in favor of Manion & Company.

J. P. Thompson testified that he paid to the Company the share of the premiums due b>j John X. Manion, which the latter owes him now; "that the policy would have earned the money after the third year, with which to liquidate the unpaid premium", and that his "idea was Manion & Company was going to pay the amount of $917.50".

One fact stands out conspicuous in the whole transaction, which is, that John X. Manion and Manion & Co., each owed one half of the yearly premium of $917.50; and that Manion & C*. paid one premium of $917.50. Their attempt now is to show that the half premium which they paid and vhich they now claim was the one due by John X. Manion and not by themselves. They have failed to satisfy us on that point. In the first place, the fact that they paid the note raises the very strong presumption that they considered it their debt; business men seldom pay what they do not owe; the burden of proof was upon them to show error in the payment. Besides, Thompson testifies that he paid John X. Manion's share of the premium; therefore, it must be their own debt which Manion & Co. paid.

At a meeting of the stockholders and Board of Directors of Manion & Co. on Tebraary 10th, 1915, it was

"Resolved that Manion & Company shall pay an annual premium of $917.50 the differnce between this said premium of $917.50 and the actual premium of $1835» áfter deducting annual dividends, is to be paid by J. S. Manion".

In a latter dated March 5th, 1915 X. P. Thompson writes to John X, Hanlon:

"Xollowing our conversation in the matter of settlement, I eiielose three notes of ‡917.50. x x x During these three years we will retain the dividends and the reserve, with your assignment, and will collect only the net amount with interest of 5% for the accommodation".

We are satisfied that in making the payment, the plaintiff paid its own debt; therefore, the judgment is affirmed.

May 17th, 1920.


author: CHARITS F. CIAI3CKIE» JUDGE»

text:
    Char1es P. C1aiborne, Judge.
    SUCCESSION OF WM. W. TERRIFF VS. P. J. McMAHON & AL., APPELLANT.
    No. 7691
    April 5th, 1920.
   CHARITS F. CIAI3CKIE» JUDGE»

(pjia plaintiff did business under the name of "THS Y/0L7ERI11E SOAP CaUrJJTT^of Portland, Michigan. This suit is brought against Jfca Samuels, principal, and P. J, KoKahon, and S. Samuels, Suretj.es, on the following bonds

«COlTmCT Y/ITH SAITSUST»
This agreement made this Fifth day of December 1907 between «TEF V/OLVBRIHB SOAP CGMPANI”, of Portland, Michigan, N. S. A. hereinafter called the Company, and Kr. Ike Samuels of New Orleans, La., hereinafter oalled Salesman, v/itnassethj That the said Company hereby appoints the above named person to be salesman for its soaps, perfumes, and other products, x x x The Company further agrees to furnish to the salesman said medicines, soaps, perfumas, and other products on board cars at Portland, Michigan, at such times and in such reasonable quantities as the said salesman may order during the life of this contract, reserving the right,, however, to regulate or limit the amount of goods to be furnished, and agrees to charge such goods to hip. at rsgtflar wholesale prices to salesmen set forth in the printed confidential price list, or price lists, of the Company, y. y. x The salesman agrees to Pay for all goods furnishes him by said Company, as follows, namely 5 by remitting to the Company each week one-half of the cash produced by his business, unless otherwise directed b¿- said Company, until his account shall be balanced, x x x Che said salesman for his part further promises to per form faithfully, each and all of the agreements printed in the back of this oóntraot, {che clause pertinent to tí.is case printed, upon the back is as follov/s: "Co maíce regular and satisfactory weekly reports xo sh. Company1»)#
In witness whereof the said parties ¡.ave hereunto set their hands the day and year first above -..ritten#
"Sigilad** che ,/olVcrina Soap Co0
°J ft... Cerriff, president.
Tin StirdUftlB, Sfclasnan»
In consideration .of the appointment of the above named person as salesman, we hereby guarantee, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree t’na/t any extension of time, change of territory, or reasonable modification of said contract shall not release us rom liability'hereon. ity 'harson.
"Signed" E. Sa,muels JE?
fi T in TiTillimi Sureties are entitled upon request, at any time, oo full statement from our Report Register, showing condition of salesman's business".

Ufa. W. Terriff died July 7'Mi 1913; his succession was opened in this Parish and an Executor appointed. In his petition the Executor alleges that, in accordance with the above contract, the plaintiff sold and delivered to Ike Samuels certain merchandise] that on June 21st, 1913 the said Samuels made a written report admitting an indebtedness to plaintiff of $1076.76; that on Juno 23d, 1913 he ordered more merchandise which was delivered to him to the amount of $170.98; that on June 21st, 1913 he remitted to plaintiff $25, thus leaving due to plaintiff #1222.74; that Ike Samuels died in Mew Orleans on July 8th, 1913; that his succession was opened, but was insolvent; that plaintiff received from it, on account, $133.91, leaving a balance duo of $1008.83, for which he claims judgment against S. Samuels and P. J. McMahon, Sureties.

E. Samuels failed to answer, and judgment by default was taken against him.

McMahon filed a general denial, but admitted that ho had signed the bond sued on; further answering, he averred: lo that at no time did the plaintiff ever advise him of tne sale, of the goods by plaintiff to Samuels, and at no time did pla.intiff ever render any statement to him for any sums or money due by Samuels for merchandise sold to said Samuols; 2o that pla.intiff was notified at one time that said Samuels was sick and weak and mentally unbalanced, a.nd that plaintiff should not trade with the said Samuels, and that said Samuels wa.s, to the knowledge of plaintiff, a. for considerable time, confined in the sanitarium. Despite that, plaintiff, so defendant is informed and believes, continued to -trade with sejW, Samuels,,but at no time notified or called "plaintiff1 a attention to the condition of Samuels' mind nor made any claim of any kind against defendants herein with respect thereto."

There was judgment for plaintiff as prayed for, and defendant, McMahon, alone has appealed.

lo The first defense is based upon the case of Lachman & Jacobi vs Block, 47 A., 505; McMahon urges that plaintiff had never notified him that they accepted his offer to become a surety, or that, upon the faith of it, they had shipped or would ship goods to Samuelsp¿(ikére is no article of the Civil Code that makes it the duty of the creditor to give notice of the acceptance of suretyship, or to give notice of credit extended, Unless such duty is clearly established by the jurisprudence of our State we cannot impose it.

In the Lachman case 'the defendant Lazard, of New Orleans, had written to the plaintiffs in San Francisco as follows:

“I agree to become surety to you for $10,000 for Block Brothers",

with no intercourse whatever between the plaintiff and the surely either before or after the letter. The Court held that the letter of Lazard wqs merely an offer or pollicitation to become ^surety, and was not binding upon the security until he had been advised by the creditor that his offer had been accepted. Such were the facts in 7 A., 385 (389). But in the present case the document signed by^sureties was not a mere offer or pollicitation, but an absolute bond creating immediately and absolutely the obligation of a surety. The distinction is clearly established in La. & W. R. Rd. vs Dillard, 51 A., 1484 (1490) wherein it was said:

"Hence, the true doctrine is that a guaranty of a future act, which is subject to a condition, must bo formally accepted, and notice of such acceptance given by the guarantees; but it has no application to a contract absolute in terms, as the one sued upon is." See also Heitman vs Ry. Co., 136 La., 828, 829; 20 Cyc 1407; 106 La., 429; 140 La., 969 (975); 16 A., 19; 5 Ct. App. 169; 2 H. Dep. 1534, 1535; 11 La., 235; 7 Dalloz Rep., 524 & 23.

2o The notice of the mental condition affecting Iks Samuels, alleged by McMahon, is set forth as follows: A letter of his father to the plaintiff dated April 17th, 1907, in which he writes:

"I regret to inform you that the nerrous condition of my son Ike is such that if he continues as he is doing at present he will be worse than he was last year, i x x Ike is sanbitious and don't want to commence at the foot of the ladder, but he wants to get soap by the oar load and hare this City to be the distributing center; but he is physically unable to do it; he oould get the financial backing providing his nervous conditions was in shape; if you desire any further details I will give it. Therefore I suggest that you would not encourage him to extend the business for the present, but restrict him say 10 or 20 boxes weekly; of course you want to be protected. I refer you to Teutonia Bank concerning ■iiyse'it”,

The plaintiff^by letter dated April 21, acknowledged the flither' s letter of the 17th, and saj^i that they felt friendly to the son and would do nothing to iraoair his health; that they would not encourage him to extend his business;"fteither would they ship him any more goods, if they thought it would be a damage to his health"; but they thou$vt he would do better if he was given a chance than if he met with opposition.

On April 25 the father answered the plaintiff:

"I thanic you for yours of the 20th ult. of course I understand that you will continue to ship to ray son soap on a small scale; as I have stated i-n my last I will see that you are protected, but I don't think this is required on ray part judging from the oast business experienee you had with my son. If fortunately his nervous conditions improves I will immediately advise you. Thanking you for the interest you have taken in this matter &c“.

On Aoril 27 the plaintifft again write to the father assuring him that they will see that the son does business only on a small scale until they are informed of a change for the better in his physical condition.

The evidence shows that Ike Samuels did only a small ■business. Proa June 5th, 1907 to June 27th, 1913, the plaintiff»

shipped to him merchandise of the value of ill,045.10

On part payment of which he remitted 9.822,40

leaving a balance due of $ 1,222.70

McMahon testified that he knew nothing of Samuels' mental or physical condition; if he had known that there ms anything the matter with him he would not have signed the bond; that Ike Samuels asked him to sign the bond and not the plaintiff.

Maurice Peitel is an uncle of Ike Samuels; he knows that Ike Samuels was in a sanitarium for quite -a while but he does not remember in what year; thinks he was there more than once; he wrote to the plaintiffs that Ike Samuels was not in his good sound mind and that they should not send him any more soap because he was not capable of attending to his business; that ho was in a sanitarium and he thought it advisable for them not to ship him any more goods; he took a press copy of the letter, but his books were left in charge of a colored man who allowed goats to eat them up; so he could not find the copy; no one opposed the sort of business Ike Samuels was in; at different timed Samuels used to come to him when there was soap at tile depot, where he had to pay; it always came bill of lading eifdvt draft attached, and a dozen times he came to him and got a check to take the soap out, so that he could go out and sell it.

The following letter, we presume, answers the information transmitted by Feitel to the plaintiff:

New Orleans, Juneml3th, 1907,
Mr. M. Peitel, City.
Dear Uncle, I have decided to let the matter drop in re-fard to letter written by jtou to the Wolverine Soap Co., defaming ray character, and "Por reasons best known to myself" I will not take action against you. Now, beieve me, I am writing this letter without consulting any one, as I have now gone over my various routes and have vindicated myself with almost every one of my customers as to my sanity, vfoicji you know has handicapped me greatly, as I could bring you to hundreds of people who wili testify that parties you have in your employ have spread this stigna around this City, that I was sent to an Insane Asylum, when, God Knows, I was"aufferirg from a nervous and melancholia disease* caused from dissipation and and worrlment over capital to'handle a business oí which I have cada a wonderful success* as my boots will prove* Now, unde, I will be very thankful to you if you will send me an itemized aocount of what I owe you, as x wish to pay my debts* I do not want my people to go around saying I owe you money* Trusting you will send me my bill by return mail, I an
Your- nephew
«•Signed» Use Samuels»

B* Samuels, a co-surety with Me Kahon, and a brother of Its Samuels, swears that Bee Samuela was in a sanitarium prior to 1907 and afterwards; and that he died in the City Mental hospital in 1909: he was over in Biloxi in Dr. Totes* Hospital for nervous people? he «would not lite to see Mr* Mo Mahon stuot for something'he is innocent of»; in that way he has an Interest in the suit*

The plaintiff toot thé testimony of C. E* lie Car thy, a ootton broker* He testified that he had lived in New Orleans from August 1904 to 1913; that he knew Ike Samuels very well; that he, witness, boarded at 6030 Garfield Streep that from 1911 until 1913, Ike Samuels lived with them; he did not think ha was mentally unbalanced; he was peculiar, but not mentally unbalanced; ha died July 6th, 1913yabout two weeks before his death, he had a sunstroke; It; was very hot, and jumping in and out of his wagón, he was overoome with the heat and after that he acted very peculiarly*

The plaintiff also introduced in evidence an itemized statement &A oharges and credits in the aocount of the v/olverine soap Co* with Ike Samuels from JUne 5th, 1907 to June 27th, 1913 showing from month to month, and someticas from week to week, the value of goods shipped to Samuels, and the sums remitted by him to plaintiffs, also from month to month, and sometimes from week to week, amounting,as previously stated, to $11,045*10 charged and $9,622*40 remitted»

They also offered in evidenoe an order for goods dated June 23d 1913, in the handwriting of Ike Samuels and signed by him*

They also offered in evidence a report of Ike Samuels to the plaintiff» dated JUne 21st 1913, in his handwriting, and signed by him, aoousing an indebtedness of $1222*70*

In the presence of this testimony, we must conclude that the defense of mental unsoundness has not been established. While Feitel writes to the plaintiff that lies Samuels v/as not in his right sound mind* Samuels* father» at the same period of time» writes to the plaintiff that he hopes they will continue to ship to his son soap on a small scale; and Feitel himself advances Samuels money and encourages him to trade with the plaintiffs. E,53amuels tes» tifies that his brother was in a sanitarium, and yet he signs his bond v/ith Mo Mahon; we cannot believe that he then considered his brother inoapaoitated from:, doing businesses that would be accusing him of assisting his brother in bringing possible loss upon the plaintiffs and upon MO Mahon. Besides, ha was anxious that Mo Mahon should not he "stuck'1, even lf^by releasing Mm, the plaintiffs were "stuck"*

Sor is it possible, if Samuels was of unsound mind, that he could have carried on Ms business during six consecutive years, receiving goods» distributing them along Ms routes, sending orders, making returns and remittances, without an interruption or an error at any time.

But bt that as it may, there is no oharge and no evidence, that the balance due by Ike Samuels was caused by reason of Ms unsound mind, and that the loss would not have occurred had he been of sound mind*

So It was also urged in argument that the contract between the plaintiffs and ike Samuels was void for want of mutuality, in that the plaintiffs bound themselves to ship goods to him, while he did not bind himself to take any -, and the oase of Campbell vs. Lambert, 36 A., 35 is quoted as authority* That oawe is quite different from the one under consideration. The Lambert Case was an attempt to recover damages for a violation of the oontract; in this case the contract has been executed; ike Sannals has received the goods and he must pay for them* Also 120 La., 966; 11 L. R. A. N. S. 717.

4o It was also urged in argument that Me Mahon was not bound because the plaintiffs failed to notify him that at the time he signed as surety Ike Samuels was already indebted to them in the sum of ^250 which was a concealment of a material circumstance, calculated to increase the risk of the surety, and that he was thereby discharged*

There are authorities to that affect* 32 Cyc 62; Stearns on Suretyship 15.154; 17 C. B. (N.S) 482; 2 K. B. (1912) 72; 10 Cl. 5 Fin , 934; H. of L. BK 8; 1 Dow 272. 292; Spenoer on Suretyship 67 & 51; 8 Ch. Div. 475.

But we prefer to rest our conclusions upon what is said in Cyo on p* 63 (C) j

"The creditor or obligee is not under a duty to disclose former trivial defaults of the princljjal, such as that he had failed to aocount or to remit promptly, or that ha had intermingled hia funds ■with those of his employer, nor in the absence of inquiry is the creditor or obligee obliged to divulge the indebtedness of hia principal, or that a judgment has been obtained against him, or that ha is insol— vant».

m this oase tin plaintiffs had sold goods to B» Samuels; ha was to pay for them "by remitting to the Company each week one half of the oash pro.-drced by his business»# Samuels failed to do this on some occasions, but there was no active fraud in the omission; it was merely the passive neglect of a duty. It would be difficult to draw the line if this court should decida tlat in order to hold a surety the creditor must have informed him of every circumstance which might increase his risk, or of the reason which moved him to demand surety "tba very fact that security is called for should malee the surety alert"• p 64.

So (Che last defense urged is that the plaintiffs failed to notify the surety that Ha Samuels had failed to mala weekly remittances to the plaintiffs as he was bound to do under his contract. The defendant relies upon the following cases: 68 N. W., 33; 71 N. W., 709; 113 Ill., 390; 81 Ky., 540; 35 Nova Scotia, 94.

But the tendency of our Supreme Court has been to hold sureties liable unless clearly discharged by some provision of the law,

in Dougherty vs Peters, 2 R., 534, a-suit against a defaulting sheriff, the defendant contended he was discharged because the "plaintiff had not given the sureties due notice of the default". The court disregarded tbs defensa

In the case of the La. State Bank vs Ledoux, 3 A., 675, the surety of a defaulting clerk resisted payment upon the ground that the officers of the Bank had failed to perform the duties imposed upon them by the.By-laws of the Bank in the following particulars: lo they required the cashier daily to examine the settlement of the oash accounts of the Bank; So that the Directors should visit monthly the vault in which the oash was deposited and to make an inventory of the same; axti 3o that the books of the Bank should be balanced semi-annually; all of which had not been done. The surety argued that if the of íioe: s had performed their duty, the defalcations would not have been possible. The supreme Court answered, that the By-laws were directory to the offioers of the Bank and formed no part of the contract with the surety; that the surety had guaranteed that the Clerk would perform his duty and it was not a coition of the hond that the offioers of the BaWc woula tnm üalNi «ostiasU|llt Anos en tgqtrMtw O. nptlU >•

la O* tu of xedoaz rm Ladoux vs. Jona, 20 A., 520, the m« rojee tod the defease of o surety on • lHM <J»t HM lessor never notified him of the etenderaant of tía irenlses* by the lessee.

In tía onot of Mayor vs Redmond, 28 A., 276. a «nlt against a defaulting ta*-oollsotcr, the Conrt saldi

ttasuedag ao defendants contend, that plaintiffs non guilty ef lodos In not requiring tho oollootor to ñau monthly roper to ao ha naa In duty hound hy on ordlaanoo ef tho council, lt vonld not discharge tho sureties*.

m Board no »*■*■ , 33 A., 363 the Conrt said on p. 3861

"Defendant argos tho t the fallar» to require regalar aooosmta froa tho Trooonror and regalar oottlenonts oí thsao aoconnta, operated ao a discharge of the sureties. m o an find no oarlt In this defense". c5<2£- t. 3b

In 2 A.. 188 and 18 A.. 652. tho surety nas hold liable for so TO ral months* rent, althongh the lessor had aliened the nnt to eoorn» without notifying tba surety. See Also 29 A., 841.

In Union Bank vs Beattie, 10 A., 378, 41a supremo conrt adopted the opinion of Sroplong and oald>

"In the absence of any previous aomnmloatlon hetoson the orsdltor and the surety, the creditor hinds himself to nothing.*

JUdgnent affirmed.

April 5th, 1920.

May 31st, 1920.

ON REHEARING.

The bond sued on is dated December 5th, 1907; the balance due by the defendant, according to the detailed account, is $1822.70; it extends from June 5th, 1907 to June 27th, 1913. According to this account, it appears that up to December 2nd,1907 the plaintiffs had sold to the defendant, Samuels, goods amounting to $552.18, on account of which the defendant had remitted x to the plaintiffs $321.55, leaving a balance due by the defendant to the plaintiffs, on December 2nd, 1907 of $230.63. This amount of $230.63 is included in the balance of $1222.70 claimed by plaintiffs from defendant. In his application for a rehearing, the defendant surety, McMahon, calls our attention to the error in the judgment holding him liable for sales made to Samuels at a time anterior to the date of his signing the bond. We think he is right, and that our judgment in that particular is erroneous. There is nothing in the bond from which it could be inferred that it was intended to cover past indebtedness by Samuels to the plaintiffs. The presumption therefore is that it was to apply only to future sales by plaintiff to Samuel. C. C., 3039 (3008) :

"Suretyship cannot be presumed; it ought to be expressed, and is to be restrained within the limits intanded by the contract1'
"One who seeks to make another liable for the debt of a third person, m\ist prove such liability beyond all doubt or he cannot recover". 2 H. D., 1530, No. 1.
"The surety in a sequestration bond cannot be made responsible for any injury to the property sequestered prior to the date of the band". 7 R., 13.

Suretyship is of strict law and cannot inure or extend from one thing to another thing, from one person to another person, nor from one time to another time. 3 A., 255, 256.

"Tile rule is well settled that the contract of suretyship is not to be eictended to any other subject, to any other person, or to any other period of time, than is expressed or necessarily included in it".
9 A., 403.

Sureties for the fidelity of an officer appointed for a limited term are not liable for his defaults beyond the term of the apooint-nent or comqission under which the bond was furnished. 40 A., 241; 48 A., 251; Trolong Caution §> 155.

"But the contract of a surety is not retroactive and no liability attaches for defaults occurring before it is entered into, unless an intent to.be so liable is . indicated". 32 Oye p 74.- /
"Nor does an undertaking that ttts principal will pay for goods to be furnished cover goods already on hand”. id p 110.
"Usually an undertaking as to future indebtedness does not cover indebtedness already existing”, id p 118*
"The contract of guaranty and suretyship is not retroactive and the guarantor or surety cannot be held liable for anything occurring prior to the delivery of his contract unless the contract so stipulates”. 5 Elliott on Contracts p 19 ^ 3944.

It is evident, therefore, that the defendant is not liable for this amount of $230.63 as surety.

It is therefore ordered that the judgment herein previously rendered^aa far P. J. McMahon is concerned h# reduced from One Thousand, Two Hundred and Twenty-two 70/100 Dollars, to Nine Hundred and Ninety-two 7/100 Dollars, and as thus amended tha.t it be affirmed, the plaintiff, appellee, to pay the costs of appeal.

May 31st, 1920*