author: CHARGES F. CLAIBORME JUDGE.

text:
    MRS. E. LEE ROWE VS CITY OF NEW ORLEANS & THE SEWERAGE & WATER BOARD.
    NO. 7375
    CHARLES P. CLAIBORHE, JUDGE.
    May 20th. 1918.
   CHARGES F. CLAIBORME JUDGE.

Plaintiff "unwittingly walked into" one of the several open canals of this City; hence thla^suit in damages. From a gment rejecting her demand plaintiff appeals.

The accident ooourred at the corner of Dublin and Belfast, in the rear of the City, in a locality lately developed, sparsely settled, and which may be described as follows;

Dublin Street or Avenue in one block above Carrollton Avenue and runs parallel with it, from the River to the woods; it is 100 feet wide. That section of the country was annexed to the City of Hew Orleans only in 1874. Some years before, a drainage canal had been dug alona the lower side of this street. The loser bank of the canal is adjacent to the property line, and runs S3 feet In a gentle slope of about 36 aegreea bafore it reaches the canal proper which is 14 feet wide. The bottom of tbe canal, at its lowest depth, is a little over ten feet from the surface of the street; the oanal is 60 feet wide from top of bank to bank.

Belfast Street mna at right angles with Dublin Street and bisects it 26 blocks from the river in the direction of tbe woods. It runa up from Carrollton Avenue to Dublin Street then» across and beyond it. It is SO feet wide from property line to property line. The sidewalk upon each side is About nine feet wide. The sidewalk, on the river side, is paved for * dlstmnoe of only 150 feet, leaving the remainder unpavea.

At the end of this sidewalk there is a foot-bridge crossing the Dublin Street canal. The Street proper is not paved. Along ths centre of the sidewalk on the wood side or on the right hand side going up towards Dublin Street there is a cement pavement from Carrollton Avenue extending to 10 feet from ine comer of Dublin street, or fax fron the point where the bank of the Canal begins. Proa the and of this pavement the ground continues covered with grass, and extends 19 feet until it reaches the bank of the Canal; there was no barrier of any sort at the end of this walk to warn anyone of the presence of the Canal; a little beyond this paved walk there stood a Chinaball tree. At or near ths end of this pavement, on the left is a two-plank walk running diagonally aoroas Belfast Street frost ths wood nido banquet to the river side banquet until it reaches the head of the footbridge crossing Dublin Canal. There is an electric light at the corner of Carrollton Avenue and Belfast* 286 feat* another at the corner of Dublin and Apple, 326 fast, end s third at the corner of Dublin and Aprleot 325 feat distan There are very few houses on the upper side of Dublin Street.

The plaintiff describes tbs manner in which she fell as follows*

She was 72 years old, weighing about 165 pounds, suffering from no inflrmlty^as stated by her Counsel che"had been an unusually healthy and active woman;' and of an active temperament; her eyes sere good, and she used glasses only to sew or read; she had lived in this City since October 1893, but sot in the neighborhood of the accident; she had gone there but onoe before in the month of Nay, «han she walked up Apple Street, one block nearer the river than Belfast, crossed the Dublin Street Canal and walked to Cambronne Street, to soo a friend, whither she was again going at the time of this aeeldent

On August 16th. 1916 she strived from Indiana on the Illinois Central Railroad; She reached Hew Orleans at 8;30 P.M., abe expected this friend to meet her there, hut the friend did not show up; the object of having this friend eome to Met her wss simply because she was going to her house; she had not ths leaa^Boubt about her ability to find her nay at night because she had- lived in this city for 25 years; she did not think she would have any trouble in finding any place in this City. hoarded the St. Charles Belt Cara and asked the m conductor to let her off at the 2500 brook on Carrollton Ave; the oar stopped at- the -2600 blook and She got off, as she thought, on Apple Street, but in reality on Belfast Street^one block further than Apple Street, but she did not know it. She walked up Belfast Street about half a block, and then to use her own language t

"I happened to see some persons on a gallery and I asked them how far X had to go to get to cambronne Street; they told me it was two blocks from the- corner of Dublin; the gentleman came and talked to me a little while, and said this is a very dark street, I said I am not afraid, because I am used to going wnereever I want to go; he went back, I 7<ent on, and in two minutes X felt as if I stepped on a schellinger walk, but the idea was at the moment that it was the street with a damp place; but still I had the feeling I was hot afraid, so I walked along and without any warning I was■down.
X didn’t know where I was. I din’t know that I had fallen into anything, but I could not get up."

It is evident that the people to whom she talked on the gallery were the residents of the last house on the blook adjoining the oanal, as shown on the plan in evidence^and that the "damp ground" which she felt under her slippered feet was the ground beyond the paved sidewalk 19 feet long up to the bank of the Canal. This gallery is IS feet fromtt'ne sidewalk.

She adds that tnere was a growth of weeds there; that sue did not see the little plankwalk on the left crossing the street diagonally and leading to the head of the bridge across the canal; it was too dark to see anything; she aid not kno\ whether the night was dark or not, but it was a. very dark at tnat particular spot; she was in a hurry to get to her destination. Since her fall a fence na3 been erected some feet from the canal, and tne undergrowth has been cut away. She was a dressmaker for many years, then gave massage treatment, and in that occupation, often went out at night at 9 and 10 o'clock, and went home alone witnout the jeast fear; after this accident sice was not able to run a sewing machine because her eyes were affected and she could not see any; she had no trouble with her eyes before this accident; she wore glasses then only to read and sew; but up to the time of the accident she.supported herself by sewing.

Dr. J. D. Six says the plaintiff was "far above the average of her ago In activity."

A witness who resided on Belfast Street, at a distance of 90 feet from the Corner of Dublin, testifies that on the night of the accident the two lights on Dublin Street, corner of Apple and corner of Apricot were burning, and gave sufficient light for him to go across the canal.

The three elements of negligence and fault charged against the defendante are 1st. That they maintained no light at the oorner of Dublin and Belfast Street as It was their duty to do under the City Charter of 1912; 2nd. That they should have had a bridge at the end of the cement walk, In order to prevent accidents auoh as the one which happened to her," and 3rd. In default of a bridge they should have put up harriers to prevent people from falling where plaintiff fell.

Me do n>'t find It necessary to examine those allegations, as we have Come to the conclusion that plaintiff brought her troubles upon herself by her owjfwsht of oare ead-negH-getteo and that sne cannot therefore reoover; she oannot take advantage of her fault.

f Me find the law clearly set forth in the following authority: 28 Cyc. p. 1418: "As a general rule, where a person Injured by reason of a defect or obstruction In a street or other public way, Is himself guilty of some act of omission amounting to a want of-ordinary care which concurring or oooperating with the negligence of defendant materially contributes to or is the proximate cause of the Injury complained of, has he is- guilty of contributory negligence precluding a recovery, notwithstanding negligence on the part of defendant In causing or permitting such defect or obstruction, and notwithstanding a charter or statutory provision imposing a liability upon the municipality for Injuries arising on account of the condition of any street or public ground^

Thu* if, by the exercise of ordinary care and alllgenos the person injured could have avoided the injury, and he falls to exercise such care and diligence, he cannot recover for injuries arising from a nuisance erected and maintained in a public street, or by reason of defendant's failure to properly safeguard excavations'1.

In the case of Sauer vs Union Oil Co., 43A 699 the Court said! "An employee in a oil mill, who is directed by a superior to go to a distant point, with no direction as to th* route to take, if he is ignorant of the route, should inquire, and If, failing to inquire and without the direction or knowledge of the superior, he seleots an improper and dangerous route through and amongst machinery, and passing over and under running wheels and belts, when there were other proper and safe routes, he iB at fault and assumes the risk of resulting Injury."

In the case of Tatje vs Frawley 52A 884 the Court denied relief on the ground of contributory negligence, to a pedestrian who, while running for a car, at night, along Grevier Street, fell into a side gutter, the existence of which he knew, or should have known, from his acquaintance with the topography of the City.

In the case before us, the broad canal stretched its gloomy length and breadth in apparent and conspicuous warning; the paved walk on which plaintiff traveled ended 19 feet before it reached tne canal; the distance from the end of the walk to the bank of tne canal was unpaved, unused, trackless, covered with weeds and damp; that, of itself, was sufficient to act as a red light and to put a pedestrian upon notioe that there ^as danger ahead and to call upon him for extra caution. The plaintiff had crossed the canal once before at Dublin Street and knew, or should have known, that its course ran in her path; if she did not remember it, she cannot shift the consequences of her want of memory upon the defendants. While there was no electric light at that particular corner, there were three lights in different directions within 325 feet of the spot; we must presume that they gave enough light to inform one of the presence of a canal. The night was not so dark, as plaintiff herself testifies that she saw persons upon a gallery IS feet from the sidewalk.

Jf she did not know her way, she should have inquired of them. With reasonable care plaintiff could have avoided the accident.

Judgment affirmed

May 20th. 1918.


source: Caselaw Access Project

author: St. Paul Judge.

license: Public Domain

text:
    NO. 7376
    MRS. NANCY G. WEST VS JOSEPH H. COOK.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      May 20 1918
   OPINION.

St. Paul Judge.

This Is an action for damages for an alleged assault and battery, and also for detaining under a lessor's claim certain property not liable to seizure for rent.

not The alleged assault and battery are not only proved, but on the ntrary, the plaintiff was the aggressor, and the only aggressor, defendant simply disarming her when she sought to strike him.

Two judges heard the witnesses, the judge a qua and a judge of the criminal oourt, and both reached the conclusion above stated, in which we concur.

But the evidence does nhtw that defendant refused to -surrender some of plaintiff's property, not liable to seizure for rent, inoluding a bed and bedding. This is shown by the testimony of two members of the bar, who made demand for it; and is admitted by- defendant.

Defendant did not refuse to surrender plaintiff's personal olothing, but he did refuse to surrender her other effects, including her bed and bedding; and plaintiff was obliged to resort to a writ of sequestration in order to obtain them.

Plaintiff is therefore entitled to some damages, but these are merely nominal and we fix them at what would be a reasonable attorney's fee for suing out the writ, putting same at the sum of thirty dollars.

We allow nothing for alleged injury to feelings,etc, for it is quite olear from this record that# ulaintlff herself by her own 'improper oonduot, brought about a situation whioh, if it did not justify defendant in detaining her bed and bedding when demamderi by her attorneys, yet made his aot in so doing somewhat excusable under the oiroumstanoeB.

The judgment appealed from is therefore reversed, and it is now ordered that plaintiff Mrs. Hanoy 8. West have judgment against defen 4ant^for the full sum of twenty dollars with legal interest from judioi» demand until paid and oosts of both courts.


author: St. Paul, Judge.

text:
      NO. 7377

    J. M. COUGET VS STEVE DASARO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   olimos,

St. Paul, Judge.

Appellee moved to dismiss this, appeal on the ground that the transcript does not contain the evidence upon which the case was tried, hut

This however wasAa mere suggestion, unsupported hy affidavit or evidence, whilst the certificate of the clerk recites that the transoript "includes all the pleadings, evidence and documents in the matter."

Thus stood the matter when the motion to dismiss was filed and we might well allow it to take the oourse pointed out in Chopin Vs Wilson, 27 An 444, wherein it was held that the appellant might rely upon the clerk’s certificate, taking his chances upon the sufficiency of the transcript for his own purposes, as if for instance he relied solely upon a point of law (See Succ of Pilcher, 39 An 362); and if the appl&lee deemed the transcript insufficient for his purpose it behooved him to direct the attention of the court to sjioh fact, not for the purpose of dismissing the appeal, but in order to have the transcript completed.

Such is now the law of this State, and made so by statute (Act 229 of 1910; Quaker Realty Co vs Posey, 130 La 942) although no such statute was needed for that particular purpose. See 27 An 444; Childress vs Allen, 15 La 500; Trudeau vs R. R. Co, 15 An 717; Baltimore vs Parlange, 25 An 335; Borde vs Erskine, 29 An 822.

The last two cases hold that it is not even necessary to resort to the roundabout method of a certiorari, but it suffices for either party, upon discovering a lapse in the transcript, to bring up the necessary portions of the record and have them filed with the transcript, even after the submission if the lapse be not noticed until then.

In the case before us the appellant has. since the motion to dismiss was made, produced and filed with us the missing evidence.

It is true that the Supreme Court has again and again held that the dismissal of on appeal might be the consequence of bringing up an incomplete transcript; but if we look closely we will find that in general a dismissal for such cause has followed only when after an examination of the case the court was satisfied that th e appeal was without merit, and any other course would amount to a denial of juetloe. But there it seamed that the appeal had some appearance of merit, but the case could not be decided because of defects in the transcript, the appellant has almost always.been allowed.to supplement the transcript; or when that could not be done, the court in order to prevent a miscarriage of justice, has even reversed tne judgment and remanded the oaac for a new trial In order that the appellant might seoure a proper reoord and bring up a perfect transcript.

New Orleans La, May 20th, 1918.

She fact of the matter is that the law favors appeals, and courts will not deny a right so important unless there be clearly no other course left.

Motion Denied,


text:
    NO. 7377
    J. M. Couget vs Steve Dasaro.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIMIQH

St. Paul, Judge.

The Heirs of Romaguera leased certain property to one Leonard, # who furnished his notes for the rent.

Leonard in turn leased to Couget,.the consideration being that the latter should pay the aforesaid rent notes to the acquittance and discharge of Leonard.

Couget then leased to Lasaro, the consideration again being that Lasaro should pay the aforesaid rent notes in the plaoe and stead of Couget.

All.three leases bore that failure to pay any one note should mature- them all, and stipulated for 10$ attorneys fees in oase of suit.

Lasaro failed to pay; and thereupon Couget sded for the whole amount of the rent and took out this provisional seizure.

As plaintiff failed to allege (or even to prove on the trial) that at the time this suit was ttüt brought, he (plaintiff) was the holder_of the aforesaid rent notes, or that he had paid them, defendant filed a defense based partly, and an exception of no cause of action based wholly^ on these grounds.

In as much as defendant might indeed assert, with some show of reason, that if he paid the rent to Couget he might be oalled upon to pay it a second time to the holder of the notes, we are not prepared to hold such a plea, or even an appeal pursuant thereof, to be frivolous, nevertheless, for reasons which we sill . presently point out, the defended# and plea are not well founded.

But first of all let us observe that the Heirs of Romaguera, who appear to have been the holders of said, notes at the time this suit was filed, have appeared in answer to defendant's appeal and have asked bjr their answer in this court that the judgment in favor of plaintiff be affirmed.

As this turn of affairs has completely eliminatsd any possibility of defendant being called upon to pay the claim a seoond time, we might (as to that phase of the matter) stop right here, if it did not raise the question whether defendant should be condemned for the costs of all these proceedings. On that head it behooves us to show that plaintiff had a right to institute this suit even in face of such a possibility.

11.

Row in the last analysis, Leonard merely assigned his lease to Couget, and, in.turn_C.ouget assigned to Darsaro». aü-'Wte-'frioe, # ^obtairied their-own release from liability upon the rent notes, it is clear- that neither would had any interest in this suit or in the subject matter thereof.

But as they did not obtain such release the consequence was that, as between Leonard and Couget, the latter became the principal debtor and the former remained of necessity a surity for Couget, oa*it is the same as to Couget and Dasaro; as between themselves Dasaro, who occupied the premises and agreed to pay for the», is , the principal debtor and Couget is only his surity.

Of course as to Romaguera they were all liable in solido; but/^ 1 in the very nature of things two persons cannot, as between them- r selves, be both liable as principals for the whole of one and the same debt. If the debt concerns them both (i.e. if it be for their joint benifit) they are, between themselves, jointly liable, C. C‘ 2103; and if the debt concern only one of them ( i. e. if one of them has received the whole benefit) that one is the principal ■e debtor and the other is only his suiHty, C. C. 2106. /

In plain words, Couget has no interest in this suit merely because he leased to Darsaro and Parsaro has not paid Romaguera. His Interest arises solely because of his own liability towards Romaguera and PararOi’s promise to discharge that liability in his stead. That is to say his interest is that of a surhfy and not that of a landlord.

Wow the güila — >§-*a—e-aamo-fea." fc-sy »U^» ......;-.hj oy )»-= — fina»»' ti: 0l*> Sia^?¿C ejj <3-o¿¿jyy^ ya -.4r-“ " n*tir>q against the principal debter unless and until he has first paid the debt (32 Cyc 244-245, and note 13).

But under the regime of our,Code the surity, even without having pAid the debt, has a right of action against the principal debtor to be indemnified by the latter, as.soon as the debt matures, Dickey vs Rogers, 7 N. S. 588.

Thompson vs Wilson, 13 La 108.

Mudd vs Rogers, 10 An 648.

Edwards vs Prather, 22 An 371.

Plaintiff had therefore the right•to institute this suit when he did even though he may not have paid the notes at the time.

111.

Defendant alleged and attempted to prove that he suffered certain damages by reasons of leaks in the roof which Romaguers had promised but failed to repair.

She trial judge refused to hear evidence on that issue, and properly so. Whatever we may think of the soundness of the proposité ion in itself, it is nevertheless the well.settled jurisprudence of this State, that when the'lessor fails, neglects or refuses to make the repairs,due by him, the lessee.must make them himself and deduct . the amount from the rent; and failing to do so he has no claim against his lessor for the ensuing damages.

Lewis vs Pepin, 33 An 1417.

Welham vs Lingham, 28 An 903.

Winn vs. Spearing, 26 An 384.

Diggs vs Maury, 23 An 59.

Pesant vs Heart, 22 An 292.

Westermeier vs Street, 21 An 714.

Scudder vs Paulding, 4 Rob. 428.

And besides, hs was.said in lewis vs Pepin, the undertaking of defendant (in the lease between plaintiff and himself) to keep the premises in good #### repair relelvedthe plaintiff from the-obligation which the law would otherwise have imposed on him of making repairs to the roof.

New Orleans, La, June 28 1918.

# as to- Hornaguera, and his promise, the judgment reserves defendant's rights if any he has for damages.

IT.

The appellee asks damages for a frivolous appeal. As we have said, we do not consider the appeal frivolous, though the judgmental oorreot.

Judgment Affirmed.


author: St. Paul. Judge.

text:
    NO. 7379.
    ROBERT J. TANEY & WIFE VS MRS TILLIE HIRSCH.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I H I O H.

St. Paul. Judge.

This action is brought by the nominal plaintiffs on behalf of their minor son. It is a claim for damages growing out of the alleged negligenoe of defendant's ohauffeur, and the charge is, 1. That the ohauffeur stopped the automobile without signaling to those behind him, and,

2. That when the ohauffeur had stopped and plaintiff's son, who had followed behind on a bioyole, had also stopped, the ohauffeur baoked his oar without warning of any kind, striking and running over the bioyole, throwing down and injuring their son.

Just why the allegation is made that the ohauffeur stopped Without signaling, when admittedly nothing whatever came of this particular pleoe of alleged negligenoe, does not appear; but as to the alleged negligent# baoking of the oar, plaintiff's son (aged 14) testifies that he kept about six feet behind the automobile an* it oame along and when it stopped he- also stopped and stood with his feet on the #### ground and the bioyole between his legs, a foot or two (perhaps three) behind the automobile and directly baok. (l.e. to the middle) of the automobile. That he oould not..see the chauffeur "from his bioyole", but- oould see him when he got off, that is, when standing with the bioyole between his legs; but is positive that the ohauffeur signaled neither when about to stop nor when about to baok. The oar stopped "not more than a minute" before it began to baok. When the automobile stopped he had reached his own destination, but in order to get there he had to cross the street, and "before he oould get aoross he Was in the baok of the Automobile".

A boy friend (aged 16) testifies that he saw the boy baok of the automobile "sitting on the frame of his bike". The automobile had ## already stopped and the boy was two or three feet behind. He was not holding on the automobile but had his hands on the handlebars of his bike. "He did not stop (start?) to get off his bioyole before the automobile started backing", but B.1ust when he was about to start Walter (the boy) tried to jump off and before he had time, the automobile hit him”. The oar hade been stopped about "two or three minutes;" and later,it started to baok "right away". He did not see the chauffeur look to see if any one was behind him.

New Orleans La. May 20th 1918.

On the other hand the chauffeur testified that he signaled and looked out before attempting to baok, and saw no one* He backed very carefully and did not know the boy was behind him until he cried out.

Apart from the fact that the boy's testimony was wholly in response to leading questions, and is contradicted on some points in other parts of his testimony, the trial judge who saw and heard the witnesses, believed the ohauffeur and did not believe the boy.

And his conclusions seem to us quite correct; for it is evident that the boy had ample time to get from behind the automobile before it started tih back; which he should have done since he had reached his destination; and whioh, from his own testimony, he was in the very act of doing.

And the fact is simply this; when the automobile stepped the boy was on the off sidá and started to oross behind it; he did not think the automiblle might baok and was not on the lookout so that he did not see the chauffeur's,signal. On the other hand the chauffeur oould not see the boy behind the oar, and could not suspect that someone was about to oross behind his oar at a plaoe whioh was not a in crossing and direotly in front of traffic headed the opposite direction*

The judgment appealed from seems to us correot, and should be affirmed.

Judgment Affirmed.


text:
    NO. 7388
    DOMINIC NATAL, Jr. ET AL VS IRENE NATAL, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I H I O H

St. Paul, Judge.

This controversy involves only the distribution of a fond arising from a sale to effect a partition between the widow and six ohildren of Dominio Ratal, Senior.

It would serve no useful purpose to rehearse a long and complicated litigation over the status of the property, whioh preceded the partition, but which oulminated in a judgment on June 27th 1917 reoognizing the widow as owner of one half of the property subject to a mortgage granted by her in favor of Mrs. Lillian Clarke for more than its value, and the children as owners of the other half subjewt to the payment of a judgment in favor of the same Mrs. Lillian Clarke for the sum of $419.44 advanced by her to pay succession debts.

The property brought $1490 and there were $338.46 of general charges, leaving a balance of $1361.34 to be divided between the widow and six ohildren. The widows share was subject to spsoial charges amounting to $84. These general and special charges are not objeoted to, and this makes the widows net share $641.77 and the childrens net shhre $635.77

1.

Mrs Lillian Clarke claims the whole of the widows share under her mortgage. The ohildren also olaim it under a special mortgage of $661.14 granted by their mother as the prioe of their share in the community property when same wasjhdjudicated to her.

The olaim of the ohildren is without merit. The aforesaid judgment of June 87th, 1917 restores them their interest in the property and hence they have no olaim for the price. This is so olear that they themselves had their own mortgage oanoelled by a judgment obtained by themselves on January 4th 1918. Moreover this was all done as a matter of compromise duly and formally entered into for the express purpose of ending this litigation.

Mrs. Clarke is therefore entitled to the whole of the widows net share, say $541.77.

11.

The childrens net share of $685.77 is declared by the judgment of June 27th 1917 to be subjeot to Mirs Clarke's olalm for $419.44 advanced to pay succession debts. This must be read in the light of that claim. The ohildreh were by law liable for only their share of those debts, and presumably the judgment meant to follow the law; henoe we interpret this clause of the judgment as meaning that they must reimburse Mrs Clarke only one half of the amount or $809.78, leaving the childrens' share at $416.05.

111.

Mr. J. B. Rosser, attorney, is entitled by oontraot to 40$ of the ohildrens share, say $166.45, leaving for division between the si* children the sum of $249.60, or $41.60 for each.

17.

The Share of Dominic Ratal, Jr, is subjeot to a judgment against him in favor of the Mehle live Stock and Commission Co exceeding the amount thereof, and must therefore be paid to it.

7.

In order to make things olear we will recast the account in accordance with the above; and in our discretion we will cast each party for his own costs, partly to avoid entering into very small items, and also because most of the shares are already absorbed by the oalims against them regardless of these costs.

It is therefore ordered that the judgment appealed from be amended so as to order the distribution of the proceeds of sale as follows;

1. General charges, as fixed by notary $838.46

2. Special charges » i, '• " 84.

3. To Mrs. Lillian Clarke (tfidows share) 541.77

4. To Mrs. Lillian Clarke (on Childrens share) 209.78

5. To Jas B. Rosser (40$ bf childrens share) 156.45

6. To Kehle Live Stock and Commission Co, ) the share of Dominio Natal, junior. ) 41.60

New Orleans, La, June 17th, 1918.

7- To Other fte*. children of Dominio. ) ^ ) Ratal, Senior, #41.60 eaoh )

#208.

fotal proceeds distributed

#1490.00

It Is further ordered that as thus amended the judgment appealed from be affirmed, eaoh party to bear his own costs.

New Orleans, La. July 5th, 1918.

JUDGMENT

Considering the agreement of counsel on file herein it is ordered, adjudged and decreed that the Judgment heretofore rendered in these proceedings by this Court on June 17th 1918 be and the same is hereby set aside, and it now ordered, adjudged and decreed that the funds be distributed in accordance with said written agreement as follows:-1. General shares, as fixed by Notary, $238.4-6

2* Special charges " " " " 84.00

3. To Mrs. Lillian Clarke ( Widow's Charge) 541.77

4. To Mrs. Lillian Clarke( on children's Shares) 419-64

5. To Jas. B. Rosser, 40% of children’s share) 166.45

6. To Mehle Live Stock and Commission Co., the share of Dominic Natal, Jr. 6.65

7. To the ^ther five children- of Dominic Natal, Sr.,

33.23

Total proceeds divided,

$349'0.'0,01

And it if further ordered that each party Khali-bear his own cost.


text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL.
    GERVAIS J. KING, (Globe Indemnity Company, Subgrogee.) versus CHARLES L. TOMB, Testimony Executor of Samuel M. Dayton, deceased.
    No. 6772.
   O P I N I O N

Plaintiff ba daíandant for -tho ana of f BOO.00 loa un mortgage nóte?, with 8jí por annum lataraat aa $300. OQ fren duly Z, 1914; Oft iLuam inter»»* om iJPD. 00 fraa September 8, 1914; and tjí lataraat on tha ana of $200.00 Trees Wivnsahai g 1914, until paid; together with 6% oa Mid amount as attornaja* too», and with raoognition of plaintiff a apodal aortgaga to aoeoro aald aaouat on tha proparty daaorlhad in tho petition,and xaaordad la tho Clark's «filos of tha Parish of Plaquemines an April IB, 1914, In Uortgaga Offloa Book Ho. 6, Pollo 4£9; and that Mid proparty ahould ba sold to pay said amount, and for ooats.

Ha dselaras that ha «as tha last holdsr of tha ahora das* oribad notaa nada by tho dsfandant, and that said notas wars giran to him as rsprssantlng tha unpaid purehasa prloa of a esrtaln lot of morablaa and moring piotura show sltuatad at tha oomar of Hagadns and Savanth Straats In this oity, known as tho "SSsjestio Theatre"; that'dsfandant mortgagod and specially hypothecated to your petitioner, or any futuro holdar of said notaa, tha prop-arty daaorlbsd In tha patltlon and agreed, In tha arant that tha hotaa wera not paid punctually at maturity, tha proparty ooald ha Sold and salzad undsr jttdlelal procesa Issusd by a competout court. Ha aliagas that said mortgage was proparly reoordad In \ha, Clark 'a Office of tha Parish of Plaquemines, and demand for payment - being mads was refused, and he prays for judgment aa hereinbefore sat forth In hia petition.

There was. first filed a plea of want of jurisdiction, a peremptory exception, which was overruled - properly so, by the Judge a- £uo, and subsequently, on tha 8th of March, 1916, defendant filed substantially the following answer: He denies that plaintiff is the owner in good faith and for a valuable contid* eratloa *f th* n*t*» is question; edjaits th* *x*outIon of th* notes **t eat la plaintiff's petition, hut A*nl*a *njr liability to plaintiff therefor; adaits that th* aet*a wera given aa part of th* purehaa* prla* of a certain Moving plotur* buslnesa eon* Anotad la th* Ka]*atlo theatre la thla oity, hut 4*nl*a any 11a* tlllty thereunder. B* allege* tha* oa or about th* BOth of March, 1914, h* bought froa plaintiff th* pi«tur* ahow looatad aa plain* tiff d*aorlh*d, and callad th* "Kajcatio theatre"; that piala* tiff aotlvaly *ollelt*4 and pr*aa*d defendant to purehaa* aald theatre, and aft*r frequent negotiation*, relying on th* represent at ion* and warranties rede by plaintiff, he did purchase th* aald moving plotur* bualneaa for the sun of #1800.00, on* thous- and dollars of whloh he paid In eaah, and the balance with the notea aued on. Be avara, aaongat other things, that th* plaintiff represented that th* bualneaa was a luorativ* on* and that th* net profits averaged over #80.00 per week; that plaintiff further alleged thet on account of the lllneaa of his wife ha was oom-pelled to take her to dew York to have a serious operation performed upon her, whloh oould not be don* In dew Orlaana, and. In order to Induce this defendant to purchase his moving picture business, deliberately misrepresented th* facts In regard to tha receipts taken In by said theatre, and that he (plaintiff) falsely and fraudulently, and with the deliberate Intention to deceive and mislead defendant and to lnduco him to purchase the said moving picture ahow business, represented the profits from said moving picture show axoeeded $50.00 per week, net, and that it was on the faith ol the statements and warranties made by plaintiff as to the receipts of sa'.a theatre, and the net proceeds made thereupon, that defendant was Induced to purchase aald moving picture business and to execute th* notes herein sued On.

Answering further, In reconvention, he says that plaintiff' , felled and neglected to comply with the terms of th* contract sale, whloh, amongst other things, provided that th* leas* between the lessor and defendant of tha Hajastlo Sheatre was to hava baen transferred, with tha consent of tha landlord, to him, which was never dona; further, that plaintiff had agreed and solemnly promteed not to antar or engage in tha moving plctura hualnaae within a distance of one-half ml3e of the Kajeotio Ihaataa for a period of five yaara from tha data of aald contract, and furthermore bowud himself in the sum of $1000.00 liquidated damages should he violate his ow-taatlon not to enter Into the moving plctura business within the area and tha time described. Than, assuming the position of plaintiff in reoon-vontlon, defendant avara that plaintiff woe justly and truly Indebted unto him In the full sum of $1000.00, and for the rescission of sala entered Into by and between plaintiff and defendant on April 2, 1914, and for the cancellation of the notes given on the date of said contract, aggregating $800.00; claiming further, in re cor.'; on ti on. thnt he was entitled to tha rescission of ss.id eontrnct of salo, return cf tha roneys paid, end cancellation of '• '•’o notes herein sued on, by reason of the breach of contract through the failure of defendant in recon-vention to turn over the unextiirea lease of the liiajestlc Hall as provided; and again, in Article 20 of the roconventionnl demand, he. allegoa that plaintiff in reconvention avers that as a matter of fact the said moving pioture business was not a paying business; that instead of paying a net profit of $50.00 per week, as alleged and warranted by defendant in reconvention, that said moving picture business showed a loss for each and every weak it was operated by plaintiff in raconventlon; that the business had not been profitable to plaintiff, cn represented by him; that said repiesentation induced plaintiff in reeonvention to purchase said business, and had it not bean for tha said false representation nade by plaintiff he would not have entered into the oontrect of purchase for said business.

i’inOly, ha prays for lodgment in re convention, cancellation of his notes, return oí the $1000.00, and all costs, and for general re] ief.

Much testigoay v.-is token, ana a era at ¿oal ol time «as consumed by the- court je quo in cue trial of the ouse, and doubtless the judge beir.ro •■.’ion It was triad, the lato Judge- T. 0. .'.'.bilis, one of the most careful and painstaking memcors oí the bench for many meny years prior to his- death, in the city of Hen Orleans, carefully weighed the testimony in olio oa-30 and considered it, doubtless, from every angle, admitting much testimony going to f’o offset, ev the judge ruled, which, in our opinion, has encumbered this record beyond mensure, but which he - in order, in his opinion, to do eostlulo justicecetwecn the parties - did admit, and which wo, too, h;-ve carefully considered in ee'uncetion with this, ci U3e, and we love core to lie absolute conclusion that, insofar us misrepresentation iu concerned, the contract entered into la bay snd to sell tie picture .-hew in question, made on the 2nd day of April, IF] 4, substantially gave to the defendant, in detail, the riTht of occupancy and all the fictnres in said theatre, ncming them, including the electric wiring, and every little detail tha'-’ it was possible to enumerate was there-stated, and beyond the fact- that- there was eteted that there should be a transfer to the purchaser of the lease, with the consent of the landlord, which was not done, the tenant, however, remaining without objection until he failed to pay the rent - thus doubtless with the consent of the loudlord - and alleging that plaintiff was not to go for five years ir.tc- the Game business within e distance or radius of one-half mile of the hejesti* Iheatre, — beyond that, the contract in no wise, in our opinion, had at all affected the sale.

The testimony ir reference to the illness cf the wife as one of the main causes, if not the main reason, fer the sale of this property, as stated by the defendant, whether .true or false, was outside of and beyond the contract; anc if it was to have been included in it the able counsel of the purchaser, who was present at many of the conversations between plaintiff and defendant at the time of the salo, would douhtloaa have inserted it. He did not do bo; therefore we regard the oral evidence made at the time of the sale, as heretofore recited, or any other oral testimony outside of the written contract between the parties, when fresh in the minds of all, as beyond the rights of the defendant; and whatever may have been said Should have been written, and there could have teen no dispute and would have been none.

Article 1819 R.C.C. provides:

"Facts Vitiating Consent. Consent being the concur-re nee of intentionin two or more persons, with regard tc a mettcr anderstood by all, reciprocally cornmii-catcd, and resulting in each party from a free and de-libérete exercise of the will, it follows that there is no consent, not only where the intent has not been mutually comriunicatod or implied, a.-: is provided in the preceding paragraph, hut also where it has been produced by -
Error;
Fraud;
Violence;
Threats."

Article 1824 reads:

"The.Reality of the Cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there he no such cause where one was supposed to exist, or if it he falsely represented, there can he no valid consent."

In the notes under the samp article, we find:

"She plea of error of law and fraud and want of consideration will not avail to aefeat the enforcement of a written end honorable obligation unless clearly ahown.” (Citing numerous authorities).

Again:

"An allegation that one signed a contract without reading will net avail." (Authorities).

Article 1825 provides:

"Error Must Relate to Principal Cause, or Motive. She error in the cause of a contract io have the effeot of invalidating it, must be on the principal cause, when there are several; this principal cause 1b called the motive, and means that const dorar, ion without whioh the oontrect would not have been made." (And authorities there cited).

1919.

The oontract Is unambiguous. She defendant was la the cigar trasloase ea a manufacturer, in tha City of law Orleans. Ha concluded - evidently hatlaving that tha ploture show bnalnaas would raj hatter, and possibly for othar raasona known to Massif, - to buy th* plotura show In question, under a written contract heretofore alluded to, and ha did buy. He paid #1000.00 in cash, when the contrast was signed by both parties; he gave the notes without amour; and after failing In a business which ha knew nothing about, and which ha freely undertook to engage In, he fell a viotim to his own folly. His Honor, the late judge of whom we have already spoken, and whom we all highly regarded and respected, after many days devotedly and wholly given to the trial of this cause, hearing the testimony and seeing the witnesses, became convinced that there was nothing In the re£onventlonal demand worthy of attention, dismissed it,end gave judgment for what was claimed by plaintiff In this petition. And we absolutely oononr In his opinion.

Hew Orleans, _


author: By his Honor John St. Paul.

text:
    NO. 7330
    SAMUEL BOHART. VS THOMAS CUSACK CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      November 11th, 1918.
   o J ii 11> p.

By his Honor John St. Paul.

Defondant leased from the agent of the landlord certain advertising. Bpacé on the outer vail of the leased premises and "took possession. Plaintiff afterwards leased the same space from the .tenant, and in these proceedings seeks to oust defendant and Obtain possession for hijtsel#.

When we first heard the case and had not read the evidence ve thought the question might be presented whether a landlord' or a tenant had the greater right to use the outer walls of a leased building far advertising purposes.

But after reading the evidence we are now satisfied that the question does not arise in this case¿

Por the testimony whows that defendant first applied to the tenant and that the latter referred him to the landlords agent, with whom he then dealt.

Whilst it is possible that the tenant meant differently, nevertheless defendant understood, and was led to believe that the agent was the one. authorized to grant the lease defendant sought; and acting on that belief defendant paid its money and took possession,.

Under the circumstances the tenant himself would be estopped from questioning the validity of the lease thus•obtained by defendant; and since we are dealing here with simple property rights and not with negotiable instruments, the tenant could not thereafter convey to plaintiff any. greater right than he himself had.

The judgment appealed from is correot.

Judgment Affirmed.

Hew Orleans, Da,


text:
    NO. 7345
    BARBER ASPHALT PAVING CO VS F. RIVERS RICHARDSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    November 11th, 1918.
   By his Honor John St. Paul.

For the reasons assigned in Grasser Contracting Co Vs F. Rivers Richardson, No. 7351, decided this day.

The judgment appealed from is reversed and it is now ordered that there he judgment in favor of plaintiff Barher Asphalt Company, and against defendant ff. Hivers Richardson in the full sum of Two hundred and four 25/100 Hollars with fiye -per cent interest from Hay 28th 1914 and the costs of hoth curorts, including $1.50 cost, of recording, with lienvand privilege.on defendant's property fronting 120 feet on lowerllne Street in the.square hounded by Zimple. Elm and Pine Streets.

This judgment to he executory- only against the property ,' j <«•* subject' to the lien and no further; JUm property more fully describe! in the petition.

Hew Orleans, la,


author: Bp His Honor John St. Paul.

text:
    NO. 7346
    BARBER ASPHALT PAVING CO VS F. RIVERS RICHARDSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    November 11th, 1918.
   Bp His Honor John St. Paul.

Bor the reasons assigned in Grasser Contracting Co vs F. Rivers Richardson, No. 7351, decided this dap,

She judgment appealed from is reversed and it Is now ordered chat there he judgment in favor of plaintiff Barber Asphalt Paving Co, and against defendant p. Rivers Richardson, for the full sum of Rive hundred and ten 53/100 Dollars with five per cent interest from Bap 38th 1914 and costs in both oourts including $1.50 cost of recording, with lien and privilege on defendants property fronting 300 feet on lowerline Street in the square hounded hy Simple, Oak and Cherokee Streets. Shis judgment to he executory only against the property subject to the lien and no further; said property being more fully .described in the petition.

Sew Orleans; La,


author: 3y Ilia Honor John St. Paul.

text:
    NO. 7351.
    GRASSER CONTRACTING CO. VS F. RIVERS RICHARDSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I N I O N.

3y Ilia Honor John St. Paul.

Appeal from tho Civil District Court, Divisor ”3" Ko. 110S10.

HRs existing charter oí tbs City of ITS / 0; Is mo. is Act 159 of 191.3. .

Soction 42 of that -act provides tí.it v'henever 52 pe; cent of the abutting property ovni oro shall petition the city jouueil to pave or repaftt. any street or banquette, sett inf forth the character of laving desired, the council shall publish r ».l" petition for four woeke, uni if thara he no objection shall or far the raving cr repaUing petitioned for.

!Che a consent, the paving m.y hr. flora entirely Kt their expense; if they do not all consent then they shall hoar only a certain portion of the cost and the City shall hear the rest, it also provides that if nothing he said as to the térros of payment then the share of the property holders shall ho payable cash, hut tho property holders Kay in their petition fix the terns of payment at one fifth cash and the balance in four equal annual inst.KLi'.onts. urae section provides thrr li the property Y. To 'Id ore all

fho rest of the section prescribes the method of collecting the portion due by the property holders rice the itens of work which shall he included in paving and reps Wing.

Section 47 and 48 of said act provide That the City Council may in its disco stion order the pavin'} or repaWiny of any street or banquette and nay levy upon abutting property holders a certain portion of the cost, which is the some as fixed by section 42 when all the property holders do not consent to bear the whole cost; that the items of work included in paving and repaving and the method of collecting from property holders shall be the same as in section 42.

Section 49 provides that in such ease notice of intention to pave shall he published for four weeks and a majority of the property holders may thereupon select the quality of pavement to be laid, and on their failure to do so the oounoil nay itself select; that the portion due by the property holders shall then be payable áne fifth cash and the balance in four equal annual installments.

Some time prior to .June 24th Ifü 1913 the City aouncll was presented with a petition purporting to be signed by 52 per cent of the property holders, asking that lowerline Street between St. Charles ard Jeanette be paved, designating the kind of pavement, and fixing the terms of payment at one fifth cash and the balance in four equal- annual installments.

fhis petition was duly published -and on June 24th the council was officially notified of the publication. Ho objection having bean made by anyone, the council on September lóth ordered the pavement, designated the kind of pavement as petitioned for, assessed against the property holders that portion of the cost allowed when all do not consent to bear the whole oost, and fixed the terms of payment at one fifth cash and the balance in four equal annual installments.

thereupon the work was advertised and on December 3rd the contract was let to plaintiff and others, who began the work early in February 1914 and. later on completed it.

2his is & suit to collect from defendant his share of the cost.

The first personal notice which defendant appears to have had that, the street was to ha paved,was about February 9th when the work had just begun; and a day ob two afterwards he filed with the city his protest against the pavement based upon the ploa that the petition for paving had not been signed by a majority of the property owners, and this seoms to be a fact.

hut it can avail defendant nothing.

As we have seen the council needs no petition of property holders to order the paving or pepaving of any street or banquette; Euoh a petition only makes it compulsory on the council to do so.

And since in according the petition such as it was, the council levied only that assessment and fixed only those terms whieh the lair allowed when proceeding without a petition^the petition may he wholly disregarded. Jpor the council simply acted "in its discretion.”

JL. One who may "in its discretion" do this or that, nay do it simply because he thinks it should he aone though no one asks it, or because he is asked to do it and still thinks it should be done; the fact being that tlie right to use one's discretion is the right to act for reasons deemed satisfactory by one’s Belf, to act without assigning any reasons whatever, to act without having one’s reasons investigated or reviewed by any other authority.

It might he said perhaps that the counoil exercised- none of its discretion since apparently it acted under the supposition that the petition was binding upon it and therefore, as it were, under compulsion.

But it is shown hy the record that the council had written evidence before it showing that a majority of the property holders had not signed the petition, and moreover it could have ascertained from the public records with the same facility as defendant did, that the petition did not represent a majority of the property holders. So that it is olear that the.council was not averse to paving the street, but on the contrary quite willing to do so, since it accorded the petition without further inquiry and doubtless because it thought the street should be paved.

Row it is true the lav/.requires that when the council designs to paws a street without being petitioned by the property holders, it shall publish notice of it's intention to do'so; but-the law requires no special form of notice, and certainly no clearer notice of intention to pave o street -can he.-given than hy publishing what purports to he a petition by a majority of the property holders asking for such paving, and seemingly compulsory on the' council to order it.'

November 11th, 1918.

She fact of the matter is, in view of the clear right of the council to order paving in its discretion and assess part of the cost to the property holders, that the proceeding by petition tías, intended for no other purpose than to give property holders a right to compel the council to pave, and if need he, a'llcrr them to assume the whole cost of paving when for want of funds to pav the city's share there might ff§ lack bidders for the work.

And the council ordered the paving unon the petition of a A large proportion of the property holders, even though it might he less than a majority, and when there appeared to he no opposition whatever, would seem to he a very conservative use of very sound discretion, and not at all an abuse of it.

She judgment appealed from is therefore reversed and it is now ordered that there he judgment in favor of plaintiff Crasser Contracting Co and against defendant 7. ‘Rivers Richardson, for the full sum Righty eight 77/lOJ hollars, with lien and privilege on defendant's property fronting 120 feet on Rowerline Street in the square bounded bySLnple, Rim and Pine Streets; and for the further sum of Cwo .hundred and twenty-one 92/RJO hollars with lien and privilege on defendants property fronting 51 i fo.-t on Rowerline Street in the sou a’e bounded by limpie, '¿Cc and ChCrwhec streets; all with five per cent interest, from April 28th 1914 <m.’ the costs both, eoa-ts, including v„. cost of re.-ordir.-r, -and with 11» for eo>:ts o;. both pr--pc: lies.

1 hi v jm'gv.ont to bn o recutory only eg -.inst the property subject to the lie;, i.nf no f'li'thor; said property being r.ore fully described in the petition.

Rev Orleans, Re,


author: John St.Paul, Judge.

text:
    CHARLES F. CLAIBOHBB. Judge.
    GRASSER CONTRACTING CO. vs F. RIVERS RICHARDSON.
    No. 7351.
    December 1918.
   ON REHEARING .

In deciding this case, «e cas» to the conclusion that the City Council, in the exercise of its discretion, under Sections 47 and 48 of the City Charter of 1912 had passed an ordinance ordering the pavement to be done, des» ignated the kind of pavement, and assessed against the property holders their proportion of the cost; that the action of the council was legal, and that, accordingly , the property of the defendant was liable for its proportion of the cost of paving under the ordinance.

The defendant has applied for a rehearing and has called our attention to the fact that it results from our decision that the claim against him for the paving ordered by the Council, in its discretion, is a "tax*, within the meaning of Article 85 of the Constitution conferring jurisdiction upon the Supreme Court whatever may be the amount thereof, and that the Court of Appeal has no jurisdiction of the case, inasmuch as the defendant, by his answer, has contested the legality of. ths paving claim or tax imposed by the municipal corporation. We had anticipated this suggestion.

In Town of Minden vs Stewart 142 La., 467 the Supreme Court said:

"Where a local assessment for street improvements is made or levied by compulsion of law, without regard to the assent or dissent of the abutting proprietors, it presents the case of a "tax" in the sense in which the word is used in the Article of the Constitution conferring jurisdiction upon this Court".

Affirming the leading case of the City of Shreveport, 51 A., 1895.

See Also: 104 La., 719, 718; 108 La., 66; 109 La. 439; 112 La. 1008; 132 La., 927.

In State ex Rel Hill, 46 A., 1292, it was said that assessments to build levees were "taxes" within the purview of Aft. 81 of the Constitution conferring jurisdiction upon the Supreme Court in all cases involving the legality, of any tax whatever. Also 47 A., 706.

Even if we have been in error in determining that the paving was not done in pursuance of a petition of the property owners, but was done under an ordinance adopted by the Council, "in its discretion", this very question upon which this case turns may be one to be investigated and determined by the Supreme Court. State vs Rosenstream 52 A., 2126.

We have therefore reached the conclusion that we have no jurisdiction in the case and under Act No. 19 of 1912 we transfer it to the Supreme Court.

It is therefore ordered that this cause be transferred to the Supreme Court of this State; provided, that before said transfer is made, the appellant, or his attorney of record, shall make oath that his appeal was not made for the purpose of delay; and provided that said appellant shall file in said Supreme Court a transcript of this cause including his affidavit and a copy of the two opinions and decrees herein on or ■3/ before January dñth. 1919; the costs of appeal in this Court to be paid by appellant.

Decenher 23rd. 1918.

OH SECOND REHEARING

John St.Paul, Judge.

Our decree on rehearing transferring this ease to the Supreme Court, and the decree of that court remanding it to us (144 La 933) sufficiently show why it is now before us for the third time.

As to the facts and issues involved, they are stated fully in our original opinion,- except in one particular. We said-that the petition for paving had not been signed by a majority (bZfj) of the property owners; but we did not go into the details, which are as follows;

The official certificate affixed to the paving petition, shows that the total property frontage (both sides) aggregated 5380 feet, 52>í of which would be 2798 feet. The petition purports to be signed by the owners of 2921 front feet, and .hence on its face represents the required 52>. But of the 2921 foet represented by the petitioners, 1240 feet (532 plus 808) admittedly changed owners before the petition was acted upon by the council; so that when the paving was actually ordered the signers ■thea represented only 1681 front feet, or lass than

This however males? no difference at this time, for two reasons, vis;

I.

The City charter (Act 169 of 1918) provider, that whenever 62;J of the property 'o-,nar:-; shall petition for paving, the council shall publish tho petition for four weeks; and ii' at tho end. thereof none of the signers withdraw,, and a majority of the property owners do not o'ojeot in writing-, the council shall order the paving (Section 42, par. I).

líviguago cannot he made clearer and more peremptory. The object of the 1-.W is unmistakable; it was to notify all persons interested, and oblige them to come forward then and there with any objections which they might have to said paving. Railing in this, they were not thereafter to be heard complaining. (Egan Bros vs Richardson, 10 Orleans App. 194).

And 3ection 50 makes the purpose of the l."\» still clearer, if possible, That section provides that the Commissioner of Public Property shall notify in writing, each individual property holder of any proposed paving irdinanco. Nevertheless hlr> failure to do so shall result not in invalidating t1 <- r.rdiJf-rce, but subjecting himself to removal from office.

II.

In our original opinion we hela that as to the pavirig involved jLn this case, it made no difiérenos whether the opunoil had proceeded with or withe * a petition of prooerty holders, since the council had done no more than it had a right to do on its own initiative and without having been petitioned at all.

We have now re-examined that opinion and feel satisfied that the conclusion then readied is correct.

It is therefore ordered that the decree herein first handed down be now re-instated and made the final judgment of the court.

New Orleans La, March 8, 1920.


author: CHARLES ?. CLAIBORNE, JUDGE.

text:
    By CHARLES P. CLAIBORNE. Judge.
    ROSENTHAL & GROSZ, Appellants. vs. W. T. JAY, Appellee.
    No. 7352.
    Nov. 11th, 1918.
   CHARLES ?. CLAIBORNE, JUDGE.

Plaintiffs cíala compensation as architects for ser» Tioes rendered the defendant. They allege that they «are engaged hy the defendant V. I. Jay to draw up plana and specifications for certain additions and alterations to premises owned hy said Jay which he desired to convert from homes to apartment houses; that they drew up plana and specifications which sere accepted hy the said V. T. Jay; that under the instructions of Jay they submitted said plans and specifications to several contractors for hide; that the lowest hid received was 915790.80; that Jay rejected all the bids; that the usual charge of architects for making aueh plans and specifications Is five per cent of the .lowest hid; that petitioners are therefore entitled to tho sum of 9787.40 as compensation for their services which Jay refuses to pay.

The defendant. Jay, answered that he had consulted the plaintiffs with a view of making certain additions and alterations to premises owned hy him, and authorized the plaintiffs to make plans and specifications therefor, with the distinct understanding that they were not to cost mors than 98000.00; that the plaintiffs prepared said plana and specifications and called for hids; that, as alleged by petitioners, the lowest hid was for 915750.00 which the defendant refused to accept.

There was judgment for defendant end plaintiffs have appealed.

The plaintiff, Grosz, and the defondant Jay agree upon the following facts? Jay was owner of two two story double houses; he desired to convert them into an eight apartment building; be prepared a rough sketch embodying his idea of what he wanted; he brought this sketch to the plaintiffs, and asked them to make a sketch embracing the alterations and additions he contemplated; the plaintiffs proceeded to the two houses to be altered and took measures and descriptions of the interior and exterior distributions; they then prepared a sketch and submitted it to the defendant; the defendant was not satisfied with this sketch, and drew himself another sketch different from the first one; on the bottom of this sketch he wrote the words: "Something on this style should be done around five thousand. Porch 30 x 38-1140 sq. ft. - new Bldg, and the porches". Signed Y. T. J. She plaintiffs drafted a sew. sketch to meet the exigencies of -foe.defendant's last sketch. They submitted to him still another sketch which did not satisfy him* . The defendant then drew and sent ihe plaintiffs aagÑtfcsr sketch drafted by himself. They then drew asemr sketch to meet the "suggestions" contained in defendant's sketch. In the language of the defendant: "there were a lot of these sketches from time to time, to try and arrive at some final decision". At lait the plaintiffs drew a sketch which met with defendant's approval. But this sketch had drifted away from the modest proportions of the original sketches, and all the parties knew that the /tost pf making the work contemplated by each exceed #5^)00.00.

At this point the testimony of the plaintiffs and of the defendant ceases to agree. The defendant testifies that. Just then, he told the plaintiffsJ"if you can do this work for #7000.00, you can go ahead, if you are willing to risk your time on that figure; you can go ahead and complete the planed And they said they were willing to do it, and went ahead, and got out the blue print we had here x x x When these were finished, the questions of an automatic heater oame up, and I said " I will tell you what I will do: I did not Intend to spend more then #7000.00 but I am willing to go now and give you a chanco to put the deal through for $8000,00, and not a oent more, and that must Include your commission''

James J. fazln testifies: "The limit. Including architect's fee, was $8000.00". But he does not specify when that limit was put, whether it was at this stage or afterwards.

After the last sketch had been accepted by the defendant, the plaintiffs proceeded to make the blue prints, and the plans and specifications for the work to be done. They testify that it was only then that the defendant informed them that he would not pay more than $8000.00.

Assuming for the purposes of the decision of this case the truth of the testimony of the defendant that he did not authorize the plaintiffs to make plans and specifications unless they could do the work for $8000.00, the fact remains that .defendant employed the plaintiffs to make sketches for him for the contemplated alterations; that the plaintiffs madeja series of sketches, and had a-number of consultations with the defendant; that if we concede that $5000.00 was the limit Of oost which he first put upon the work, at his own suggestion, improvements and additions were put upon the successive sketches made for him, which he was well aware were to Increase the oost which he spontaneously raised to $7000.00. He was asked "Then you' knew, when you consulted these different plans, and consulted with the architects, that jour original estimate was abolished, and it would cost mote than $5000.00 in the end". Ho answered: "Yes, sir, and-I raised it on that aaoount".

The defendant therefore unquestionably owes the plaintiffs the value of their services up to the completion and acceptance of the last sketch.

We shall take as the basis of compensation the sum of $8000.00 as the price of the work authorized by the Aefen-dant. According to the testimony of the plaintiffs, -tefrs work, including the plans and specifications, calculated upon that amount would have been worth #400.00. We value the eervlcee rendered by the plaintiffs, up to the making of the blue prints, plans and specifloatione, even «¿though the sketches were not used, in the absence of agreement to the contrary,-106 La. 601 - at one half or Two Hundred dollars.

It is therefore ordered, that the judgment of the District Court be reversed and annulled: and it is now ordered that there be Judgment in favor of the plaintiffs Rosenthal It Grosz and against the defendant W, T. Jay for the sum of Two Hundred dollars with five per cent per annum interest from October 18th, 1916 till paid and all costs of suit.

Judgment reversed.

November 11th, 1918.


author: 3y his Honor John St. Paul.

text:
    NO. 7355.
    ASCHENBACH & MILLER INC. VS JEFFERSON DISTILLING CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I H I O H.

3y his Honor John St. Paul.

Appeal from the Civi}. Pistriot District Court, Division "B" Ho. 118651*

which Plaintiff bought of defendant five barrels of denatured alcohol defendant agreed to ship on September 2nd.

Ihe petition alleges in substance that because the aloohol was not so shipped, plaintiff was obliged to pur-chase,at a much higher cost, •«»<»* other aloohol not denatured* and this suit is for the loss thus sustained. ít is further alleged that the reason plaintiff could not purchase denatured alcohol was that such alcohol could be obtained only on production of its special federal permit, which was then in defendantS’possession.

Annexed to the petition is plaintiff’s letter dated September 9th, from which we quote as follows; "Jo wired again this morning x x x and received your reply that you have not yet shipped but will ship >n the 12th. "his negligence on your part at the present moment appears as' if it would cost us over ,.1000 of business, x x x. In your previous letters you expressed a desire that our business relations would continue.^

¡íell wo are afrdad they are discontinued now, and they positively will bo if we have the loss."

Henoe plaintiff Anew on Sei’tember 9th that the aloohol had not yet been shipped, but would be shipped on the 12th; but instead of cancelling the sale, as it had the right to do, and demanding the immediate return of its permit so that it might purchase elsewhere, holding defendant for the difference if any, it remained content to warn defendant that a loss of business might result tod and that, if sO, their business relations would oease. Its letter contained not the slightest intimation that the contract was to be discelled, or that plaintiff meant to look elsewhere for the aloohol; on the contrary it is pregnant with the direction to go ahead -with the contract, even though it might be the last between them.

November 11th, 1918.

UMor tina oiroanetanoea we think plaintiff has no right of aotion. JCha remedy, the only remedy, for defendant’s remlesnesa in performing ‘its part of the contrast was as we have stated. But of this ########## plaintiff did not ehoose to avail itself. On the oontrary it delioeratoly waived it hy apbetantially directing defendant to •hip when it did. In other words plaintiff had the right to take the aleohol from defendant when it could get it, or it might refuse that aloohol and replsoe it elsewhere at defendant’s cost, hut it oould not do both, and' having exercised its choice it cannot nojr be heard to complain. So hold otherwise would be in effect to force the seller to make a second sale at the same price as the first, even though the goods might in the meanwhile have enhanoed in value, or tne first sale Itself have been a losing contract for the seller.

She Judgment appealed from is correct.

Judgment Affirmed.

Hew Orleans, la,


text:
    NO. 7358

    E. G. CARBAJAL VS LEOPOLD WEIL BLDG & IMPT CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

   OPIHIOH

By his Honor John St. Paul.

Thla ault hagan In Hovember 1912 aa a ault to try title to four certain aguarea of gr*und designated aa Hoe 1660-1661. 2- S.

Defendant olaina title through means conveyances from Jon C. Bagla. It alleged that aald aquarea of ground «ere In Seotlon 28 (Township 12 South; Range 12 East) and declared that plaintiff'a authora had originally fkought nnd^upqn a oertaln plan drawn by one Journot, according to which they olelaed only 26 lota in the South part of the aald four squares.

Defendant adnltted that aald 26 lota belonged to plaintiff, but olained ownership of all the rest of aald four aquarea (being the lorthexn portion thereof) and aet up that the dividing line between the property of plaintiff and Its own waa "the extreme neer liwlt of the aecond ooneeaalon to Solomon Prevost aaflndlcated on said plan of Journot."

Defendant further averred that It waa by error that the whole of anld four squares, instead of only the 26 lota aforesaid, were inventoried and sold In the Succession of Achilla Chlapella (through which plaintiff claims)

II.

The oase was continued from time to time until March 8th 1916, when defendant filed a motion asking for a survey. It alleged, that there wae no conflict of title between the parties; that plaintiff claimed lands In Section 69 (Township 12 South; Range 12 East) and defendant claimed title in the adjourning Section Ho. 28; that both parties claimed through the United States, and "the only matter in dispute herein is the boundary line between aald Seotlons 28 and 69;" that aald line had never been eatabllahed. To thla motion defendant annexed a certified alcetoh of Sections 28 and 69 taken from the official government reoords.

Shis motion vas acquiesced In by plaintiff. A surveyor was appointed; hut having failed Jto report, another was appointed In his stead Ootober 25th 1915.

Shis second surveyor (Ur Eustis) reported on February 21st 1916. He fixed the line according to the Jouxnot plan (for whioh defendant contended) and rejected a survey made by Ur Shsard, a surveyor, for the Succession of Ghiapella (for whioh plaintiff contended).

III.

Plaintiff opposed this report and contended that the Sheard survey should have been followed. On April 4th 1916 this opposition was maintained and the surveyor was ordered "to proceed anew to establish the boundry lines between the properties in dispute in strict accordance with the field notes of Geo H. Grandjean. Surveyor, filed in the record."

IT.

On April 16th 1917 the surveyor reported that he had gone upon the ground and had surveyed and marked out the boundary line between sections 28 and 69 in accordance with the field notes of the official United States Survey (said field notes being those of the aforesaid George H. Grandjean, Surveyor)

On Uay 7th 1917 plaintiff moved to approve the report, and on June 1st defendant opposed on the ground that it was not sufficiently definite in locating said line with reference to the squares in controversy and that the Surveyor "did not follow the field notes sb required by the order of court."

V.

On June 21st 1917 the warrantor filed an answer to the petition and the call in warranty, in which he set up substantially the same defense as had originally been set up by the defendant, to wit, that Jouraot had made plans of tHi both sections 28 and 69. which had been acquiesced in by the authors of both plaintiff and defendant, and were therefore binding on all parties.

VI.

On the trial before the court the defendant and the warrantor attempted to introduce evidence bearing upon their respective titles; but the district judge excluded any evidenoe exoept auch as tended to show the true location of the boundary line between Sections 28 and 69, on the grougd that the parties had volun-tar Unchanged the character of the action and converted it into an action of boundary.

It is of this ruling that appellant (defendant) complains.

VII.

From all the foregoing it is olear that the defendant after first joining issue on the question of title #dl non, thereafter of its own motion repudiated that Issue and declared that there was no conflict of title between the parties; that the only remaining controversy between the parties was the correct location of the boundary line between Sections 28 and 69; that there were two surveys# outstanding, one by Journot and one by Theard; that these surveys did not agree; that both parties looked to the official Government survey by Gasndjean, and meant to rely upon it.

VIII.

Under the circumstanoes we think the trial judge properly held the parties bound by their later pleadings and to the new Issues thus deliberately tendered by one side and acquiesced in by the other.

Where one party tenders a new issue, which the other accepts, neither party oan complain of the change of issues thus brought about by his own pleadings. Peterson vs Moock, 8 Ct of App. 254.

May 1919.

a.

For the rest it la not seriously oontandad that the boundary line as marked and laid down by the surveyor ¿oes not correspond with the official government survey; and as thus surveyed It bears out the contention of plaintiff giving him the whole of the four squares in controversy.

And sinoe the plaintiff owns the squares in controversy the trial judge eery properly directed that defendant's title thereto be expunged from the conveyance reoords where its presence could Berve no other ptrpoae but to oast a cloud upon that of plaintiff.

The trial judge also very properly dismissed the oall in warranty as not permissible in a boundary suit. Moreover as the warrantor did not join in the change of issues he oannot be bound thereby.

The judgment appealed from is therefore affirmed.

Hew Orleans la,


text:
    NO. 7364.
    GALVESTON HARRISBURG & SAN ANTONIO RY CO. VS SOUTHERN MINERAL & LAND IMPROVEMENT CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      November 25th, 1918.
   o p x a x o d .

By his Honor John St. Paul.

This is a olalM for a balemos of frdight .and ohargoo upon a oarloM of crushed rook shipped by defendant and eonslgnod to the shipper’* , order, with Instructions to notify Averill oravel Oo, for ebon the j erushed rook was intended, on arrival and lnspeotlon tho gravel Co refused 1'to aooept the shipment which was thereupon sold in due course and for less than tho amount of charges.

It is well settled that the consignor is primarily liable for all freight and oharges, although under exceptional elraumataaces the carrier may lose the claim against him (See Morgan La. & Tex Ry Co vs Woodward & Wight Co. No. 7115 of our docket). And needless tossy those oirouaetanoew cannot include a oaae whore the consignee refuses to aooept the goods ansi the oause of such refusal is not traceable to any fault of tho carrier.

Henee the defense Is now made that the caridad of rook belonged to the ATerill Company who alone should be liable for the freight and oharges upon it; the foot being that the Avsrlll Company paid defendant for its rook after shipment though before hrrlTal.

But even where the consignee is the owner at tho time of shipment, the shipper is still ths apparent oonsignor and liable- for all charges, unloss the fact of such ownership, and^the shipper was acting only as the consignor's agent, was made clear to the oarrier (See Miller & Vidor Lumber Co vs Atchison, Top. & S. F. Ry Co. 192 S. W. Rep 354).

In the case at# bar we have not even that mush; when the shipment was made the defendant was, and meant to continue, owner thereof until payment of the draft which it drew upon the Averill Company and attached to the Bill of Lading taken in defendant's own name.

The judgment appe from ¿s correct.

Judgment Affirmed.

Hew Orleans, La.


author: CHARLES P. CLAIBORNE, JUDGE. Ber Curiam;

text:
    By CHARLES' Í, CLAIBORHB, Judge.
    Mrs. LOUIS WALKER, Appellant, vs. G. CLAASSEN et al.
    No. 7367.
    November 11th. 1918.
   CHARLES P. CLAIBORNE, JUDGE.

_ This la a oonoursue proceeding by an owner against the contractor, his surety, and materialmen.

Plaintiff Mrs. Walker, the owner, made a contract with the defendant, Claassen, by which he was to erect two certain buildings for the price of $3850.00, payable in five installments of $770.00 each, the last payable thirty days after cbmpletlon and acceptance of the buildings. The contractor furnished, as surety, the United States Fidelity and Guarantee Company, also made defendant herein, which signed a bond for only $1685.00, being less by $300.00 than one half of the amount of the building contract, as required by law. The contractor proceeded with the execution of the contract and received payment for four installments. The buildings were completed and accepted on May 9th. 1916. On June 7th, before the expiration of the thirty days after the acceptance of the buildings, and before the payment of the fifth and last installment of $770.00, J. V. Roca, furnisher of materials, filed with the owner and recorded a sworn statement of the amount due. him for lumber and materials furnsihed to the contractor and used in the.buildings - amounting to $583.50. After the expiration of the thirty days, but prior to the payment of the last installment, four other furnishers of materials filed with the owner and recorded their claims for materials furnished the contractor and used in the buildings, as follows:

1. Gulf Glass & Paint Co.,.$ 78.38
8. Joseph Petrie & Co.,. 330.00
3. Carolina Portland Cement Co., , . 831.89
4. Albert Brandin Slate Co.,.865.69
Making a total of . $1489.46

The owner then filed this proceeding against the contractor and his surety and the five aaterialmen above mentioned, and deposited in court the sum of (770.00, amount-of the last payment due by her, and asked to be relieved of further liability.

The contractor filed no answer and a default was taken against him.

J. V. Roca answered denying the privilege of the other claimants. He opposed the release of the owner from further liability on the ground "that the bond furnished by her was for less than one half of the contract price". He prayed for Judgment for (583.50 with interest from June 7th 1916, for (1.50 for recording his privilege, in ■olido, against the owner, the contractor and his surety. He claimed a preference upon the fund deposited for having filed and recorded his claim within thirty days.

The Gulf Glass Co., Joseph Petrie & Co., the Carolina Portland Cement Co., and Albdrt Srandin also ask judgment against the owner,- and contractor and his surety.

The Panama Sash and Door Co. intervened and prayed for judgment against the same parties for (205.20 with privilege.

The Surety Company admitted the execution of the bond, but denied all the other allegations of the petition, and prayed to be relieved of any liability. It joined Roca in his right of preference over the fund deposited.

Upon plaintiffs' motion^, under act 52 of 1912, the Court appointed a special commissioner in the case.

After hearing before the commissioner and a report by him, the Court rendered judgment in favor of the Panama Sash & Poor Company for (205.20, and in favor of all the other furnishers of materials mentioned in the petition for the respective amounts by them claimed, with the exception of Roca, whose claim of (583.50 was reduced by (149.00, and allowed for (434.50 - making a total of $1545.66. There was al3o judgment against the plaintiff for $325.00 and "for the balance of the funds necessary". She $325.00 was for tho value of extra work found by the Commissioner to have been done by the contractor. Lastly the Surety Company was condemned to pay $615.66. This amount was reached by charging the deposit of $770.00 with $150.00 commissioner's fee and

$15.00 stenographer's costs, leaving a balance of $ 605.00
Adding to this sum .......... 325.00
And ................. 615.66
Hakes a total of... $1545.66

From this judgment the following parties have appealed: The plaintiff, the Roca Lumber Company, and the Surety Company.

in this Court the appellees have answered the appeal and prayed for judgment in solido against the owner and the Surety Company, and that all the costs of these proceedings be taxed as costs against the owner and the surety and not out of the fund deposited in Court.

1. The first error that we notice in the judgment is the part which deducts the commissioner's fee and the stenographer's costs, $165.00, from' the mass for distribution. The statute reads: Sec. 9 of Act Ho. 52 of 1912 p 62: xxx the compensation^ (of the commissioner) shall be charged upon and borne by the party cast, or the mass, in the discretion of the Court". The discretion of the Court is not exercised in a legal manner, when, as in this case,judgment is rendered in favor of the materialmen, and the fund for distribution among them is charged with costs of any kind. They should be charged against the party cast.

2. There .is no dispute as to the claims of any of the parties recognized as creditors by the judgment^ except Roca. He complains of the reduction of $149.00 effected against his claim. We think the Court erred in making this reduction. Roca had made three bids, for supplying lumber to as many builings; one for a double house for $418.00, another for a single house for $258.00, and a third

third for an addition to the single house for #149.30. All three bids were accepted in writing by the contractor Claassen. Xhe addition to the single house was abandoned, and across the bid Claassen wrote in pencil "Null and Void". Roca'a claim does not include the $149.00, amount of his bid for materials to be furnished for the addition to the single house. He is suing for materials furnished to the "double house" and to the "single house", in addition to those mentioned in the two lumber lists furnished to him by Claassen, and upon which his original two bids were made. These additional materials amount to $157.50. Concerning these, Claassen says, in answer to the question "What about the other items on this bill?"

A. "They are all-right", p 2.

Besides, the correctness of these items is sworn to by J. V. Roca and Neon Roca. The three items together $418.00, $258.00, and $157.50 make a total of $833.50. On account of this sum Claassen paid $250.00, leaving a balance of $583.50, which is the amount of Roca's claim herein. The error of (Alaassen consists in believing that he is charged with the items comprising the third bid of $149.30. We have shown that he is mistaken. The pencil memorandum signed by Roca, dated February 8th. 1916, shows upon its face that it has no reference to the materials furnished to the two buildings involved herein. It was for a different job, as Roca testifies. While the two houses herein are one story each, the pencil memorandum reads as follows: "Job: One single "two" story house; One double frame house; lumber price in two jobs $660.00 total". Besides, the figures $660.00 show plain signs of -the- erasures and overcharge, and do not constitute that sextain evidence sufficient to onwteel the Court. We therefore come to the conclusion that Roca is entitled to the $583.50 claimed -by him.

3. We do not think that the defendants have established that any extra work was done. It is admitted that the only sum for extra work to which Claassen testifies amounts to $18&»67^and not to $325.00, and he is the only witness who testifies even to these. Walker, plaintiff's husband arid superintendent of the work, denies any extra work, Claasen's testimony is contradicted hy the record. The first item of extras mentioned hy him is as follows: "The slop sinks put in hy Petrie & Co. which cost $42.50. That was not called for hy the plans and specifications? Ho". As a matter of fact the hid made by Petrie, annexed to his answer, specifies ‘"Three 16 x 24 enamel sinks and backs, cypress drain hoards, nickel plated bibbs and brass P traps". His bid was for $330.00. His claim is for $330.00, and he swears he received no payments on account. This proves he put in no extra materials. The only extra work that appears plausible are the shed and the paved walks. We cannot rely upon the testimony of Claassen alone to condemn the plaintiff. Neither the plans nor the specifications are in evidence to corroborate him. This claim for extra work seems to have been a surprise to all parties and was not given a fair trial. We shall reject the claim, reserving the rights of all the defendants to institute suit for it in another proceeding.

4. Nor is the owner liable, in this case, to the materialmen for having failed to procure a surety for the full amount required by law. The provisions of the law directed the owner to require of the contractor a surety "for not less than one half the amount of the contract". Upon his failure so to do, "the owner shall be in default and shall be liable to the same extent as the surety would have been". Act 221 of 1914 p 419, 420. If the owner requires no surety, he is liable to the materialmen for the same amount for which he should have secured a surety; if he furnishes a surety for an amount less than the one required by law, he is liable as surety to an amount equal to the difference between the amount of the oond required by law and the amount of the bond furnished by him. In this case the owner could have been made liable for only $300.00 because that was the amount for which the contractor's bond was short. BÚt the owner hae deposited #770.00 in Court; which amount, added to the amount of the bond herein #1625.00, makes a total far in excess of the sum of all materials furnished, say #1694.66; the materialmen and the surety suffer no injury, and therefore have no ground of complaint against the -owner. 142 La 273 . 126 La 555.

5. Roca is not entitled to he paid by preference out of the amount of #770.00 deposited by the owner(on the ground that he served his attested account in the hands of the owner before the fifth and last payment was due, at a time when no other account had been served upon the owner. In the case of French Market Homestead vs. Dexheimer 11 Ct. App. 277 we decided that as long as the contract price remained in the hands of the owner any furnsiher had a right to file his account and to participate 'Squally in the common fund.

6. The surety cannot plead the prescription of thirty days to protect itself from individual liability j on the ground that no sworn statement of the claims of the' materialmen had been filed with the owner and recorded within that delay. We held the contrary in the Fredch Market cáse above. . But we were overruled by the Supreme Court in the case of Shreveport Building Asn'n. vs. Whittington 141 La. 41. "The surety is limited to such defenses only as the principal on the bond can make". See also Brandin vs. U. S. Co. No. 7125 of this Court.

7. The building contract provided that Mrs. Walker bound herself to pay the contractor on certificates to be furnished by her supervising architect or any other person chosen by her. The Surety Company argues that her selection of her husband, who was her alter ego, for that position was a violation of the contract which released the surety. In the case of Meyer vs. Bichow 133 La. 975 the Supreme Court said:

"Where a building contract provides that the own-era of the building shall have the rigit to employ an architect to auperrise the construction of the building, this is a right personal to them, and if they do not choose to exercise it, the surety on the bond furnished bp the contractor oannot claim exemption from liability under the bond by pleading that the owners have changed the terms of the oontract. She surety is limited to the same defenses as the principal oould have set up, and surely the contractor, who was the principal in the bond, could not have set up as a defense the failure of the owners to exercise a right which was purely personal to them*.

8. She surety also pleads that none of the material-men can demand a judgment against it, in excess of the fund deposited in Court, because they have not- caused the surety to be served with a citation and a copy of their answer. We interpret the decision in Equitable Real Estate Co. vs National Surety Co. 133 La. 471 as opposed to that contention. See also Dr. Jos. Conn vs. U. S. F. & G. Co. No. 6479 of this Court. / £> &> J¿6&~

9. She materialmen charge that there is error in the judgment in allowing interest upon their claims only from judicial demand Instead of from maturity. This’ was in accordance with the commissioner's report. No exceptions to this item was taken to the report, therefore it cannot be considered by this court. Seo.10 of act 52 of 1912 p 63. 134 La. 913.

It is therefore ordered,adjudged, and decreed that the judgment appealed from be reversed, annulled, and avoided; and it is now ordered that there be judgment herein in favor of the following named furnishers of materials recognizing them as creditors entitled to be paid the following amounts with legal interest from October 19th. 1916 till paid, ngraely:

1. Gulf Glass & Paint Company, .......$ 78.38
2. Joseph Petrie & Co., Ltd., . 330.00
3. Carolina Portland Cement Company, .... 231.89
4. J. V. Roca Lumber & Hardware Co., .... 583.50
5. Albert Brandin Slate & Roofing Co., Inc., 265.69
6. The Panama Sash & Door Co., . .. 205.20
Making a total of.. $1694.66

It is further ordered that there he judgment in favor of the fumsihere of materials above named and against the United States Fidelity and Guarantee Company for the 3um of Nine Hundred and twenty four 66-100 dollars^Kjand commanding the said Company to deposit said sum with the Clerk of the District Court to he distributed, with the sum of Seven Hundred and seventy dollars already deposited with him, among the furnish-ers of materials above mentioned;

It is further ordered that the said United States Fidelity and Guaranty Company be condemned to 'apy/all/ costs herein, including one hundred and fifty dollars as the compensation of Special Commissioner, and Fifteen dollars Stenographer's costs, and the cost of recording and cancelling the sworn statements nf tije-gjirnishers of materials hereinabove mentioned;

It is further ordered that there be judgment in favor of petitioner herein Ellen Byrne wife of Louis Walker and against all the parties above named, and ordering the Recorder of Mortgages for this Parish to cancel from his books the privilege in favor of Gerhard Claassen for $3850.00 recorded in Book 1196 p 48^ and all the privileges in favor of the fur-nishers of materials hereinabove mentioned^and releasing her from further liability undee the oontract here!

It is further ordered that ■ reserved to claim from petitioner herein the value of extra work, if any, done by the contractor on said two buildings. he'rights 1 parties A.

Judgment rendered November 11th. 1918.

ON REHEARING.

Ber Curiam;

It is ordered that our original decree he amended so as to further credit the judgment herein rendered against the U. S. Fidelity and Gaurantee Co hy whatever amount of interest### has heen earned hy the sum of $770 deposited hy the plaintiff herein thus - in the registry of the Court and that as amended the judgment stand and a rehearing refused.

New Orleans, La, December 23rd, 1919.