author: Dlnkelaniel. J

text:
    Mrs Katherane Alfortish VS Elias Pailet
    No 7850
    Court of Appeal Parish of Orleans
    macelsplel. J
   Dlnkelaniel. J

The substantial fasts In this case, briefly stated., are to the following effect.

Plaintiff bought from defendant a certain lot of ground for the sum of $600.- $10. cash and the balance on the installment plan of $1.35. per week. During a period of about six years plaintiff paid to defendant $341. when defendant sold the lot to another purchaser, claiming a forfieture of $341. under the terms of his contract.

Svera Defendant sdsckta, that since plaintiff had defaulted, as herein above alleged, he felt himself free to sell said lot to another person.

Plaintiff alleged in her petition, that by the terms of said oontraot, that the purchase price , as stipulated , should be paid in weekly installments of $1,35.¡ and it was further stipulated, that if she should not make any weekly payments for eight weeks, then, without default, the contract became null and void, and the payments made forfeited.

The defendant relies, in his answer, on his right of forfeiture, and admits the allegations contained in plaintiff's petition.

The record shows that this case was regularly fixed for trial from time to time anft for many weeks in the District Court. Beyond filing the contract of sale, on terms as stipulated by plaintiff, nothing else was done. On the final trial of the case, in the absence of defendant's Counsel, there was before the Court the document (failed an agreement to sell together with the testimony of plaintiff.and the receipts that she paid from time to time both to defendant and at times to his Attorney, the full 'amount claimed by her to which there was no denial.

It appears that the la3t payments made by plaintiff was made on November, 14th. 1916, and ifiPWigdfe# 533PWpSS subsequently on August, ál7, she was notified by the Attorney of defendant she must increase the weekly payments to §3. per week or else forfeit all she had paid, giving her four weeks in which to comply with the terms in the letter.

Defendant claimed in his answer, and as set out in his brief and in argument, that plaintiff is not entitled to the return of the money paid by her under her contract, because she had collected certain revenues, thfe amount of which has never been set out much less proven, and because there remained an unpaid balance , under the contract, which had not been paid.

He gather from t^e Skj55tXSK*»**i brief and also the argument of Counsel for defendant, that he complains against the action of plaintiff's Counsel for hav-ing prosecuted this ca3e to final judgment without Counsel being present at the time, and he asks this Court, for that reason, to remand the case back to the lower Court in Order that he might have an opportunity to properly present his evidence in that Court, in view of the faot that judgment was rendered against -his olient without his having an opportunity of presenting defendant 13 r i ght s.

It has been frequently held, that in the Civil District Court for the Parish of Orleans, oases, are regularly called and fixed for trial after answer filed. These fixings are posted, and it is a well established faot that Lawyers must, in order to protect their clients interests, see to these postings, prepare their cases and be ready for trial whenever same are called. T/.is was followed in this case. Pc3ting3 were had at regul -ar intervals, the cáse Wae fixed for trial several times, at times defendant's Counsel was present, but what-ier the oase ñas reached or aot this récord does not stow. But finally it was reacted in due course, and whether or not plaintiff's Counsel did or did not show -shat courtesy which the latter insists upon, is not a Eatter of defence only hut could he urged before the tribunal which had the case in charge. It is admitted, in oral argument, that this was not done and no application was made to the Judge for a nevT trial until after the judgment had been signed and became final, and then this appeal was taken.

In so far as courtesies are concemd, it is not for us to determine what same should he. We only have the law and the evidence to look after and to decide in accordance therewith. There was no violation in any respect of the law, and we are stisfied it Would not have been permitted by the Judge^if. there had been any. In faot, there is no complaint so far as the Judge is concerned. The only complaint being one of want of courtesy on the part of plaintiff's Counsel. With that matter we have no concern, and we donot decide for the reason there is nothing to decide.

An examination of the contract entered into between the parties convinces us, that no matter under what name it may he termed, it pose.eee all the elements of a sale as set out in our Civil Code, ahd id a sale in fact and is covered by dll the laws regulating sales/

The Supreme Court of this State has had occasion to ‘ pass upon contracts of this character, and has held same to be sales, no matter whether the parties so intended oonsiderred or not and even though they may not be contracts of sale. State Ex. Rel. Buckley vs. Whited & Wheless, 104 La. 125. Girault vs. Feucht, 117 La. 384. Rev. C. C. Art. 3439. Article 3561 of the Code also provides; "When the buyer does not pay the prioe, the seller may sue for a dissolution thereof. This course does not seem to have osen adopted in this case, however, tne seller without having taken any proceedings whatsoever soldy í5iSá88Se wSch was -che subject of this contract to a third party, and it is only when the other party to the contract, the plaintiff in this case, has been dispossessed of her property through her vendor-and sues to recover what sne paid on account thereof, that he comes into Court and claims non-fulfillment of her obligation, under that contract, and seeks to recover for these breaches*

we have been unable to find any authorities giving defendant any such rights, nor has any been supplied us by him* Those supplied in the supplemental brief, in our opinion, have no application to this case, nor are we of opinion, that under the law governing sales of this character, one could take back the thing sold and at the same time withold what has been paid on account thereof *

Defendant also complains, that while plaintiff sue3 for the return of/ the amount of money which had been paid on account of this contracyfrhen she had rever tendered to him the amount of balance due on same, the interest thereon, or even the amount of taxes paid on the property by him, Concesding this to be true, it is equally true, that defendant ha3 his remedy and could have asked for that relief, but he has failed to do sc. The pleadings show no reconventional demand having been mads by him for any of the things he new complains of, the first time in this Court, and not having prayed for that relief in the Court below, it is impossible for us, at this time, to grant this request.

The judgment of the District Court was in favor of plaintiff for the amount claimed by her. In our opinion said judgment is correct and is now affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be, and tns same is hereby affirmed. Defendant to pay cost3 of both Courts.

—Judgment .A if irme d-

MRS. ALFORTISH VS ELIAS PAILET

No. 7850

CHARLES P. CLAIBORNE, JUDGE.

I concur in the opinion and decree herein upon the ¶' additional ground that plaintiff has received no considerable: for the money she has paid the defendant. If the defendant herein, after agreeing to sell the land to the plaintiff had refused to deliver it, or if^for any reason^delivery had become impossible, there is no question that «could not have demanded the price of sale, because the consideration of the sale would have been wanting. I cannot see the difference between that cpndition of affairs and the condition existing here when the vendor^who has received several payments thereafter^ sells to another, the land he had sold to the plaintiff, and thus made the performance of the contract impossible ón his part. The same reason for Yfhich the vendor cannot demand the price of sale in the first case, prevents him from keeping the portion of the price he has received: want of consideration. It would be manifestly unconscionableJdrJjhn to retain both the thing sold and the price paid. % La,, 360: 15 La,, 390 But it is said that such is the letter of the feesd. That may b -C A be, but' the law'will not permit the execution of such a bond, and strikes it with nullity for two reasons.

I. -Article 0., C., 1893 says:

"An obligation without a cause can have no effect". Article 1896:
"By the cause of the contract in this section is meant the consideration or motive for making it &c". The majority of common law authorities recognize the

validity of the forfeiture clause in the contract under co: ler cop- . JQC.?7sf.. sideration. 9 "A»&-fr-EmcU Jinn.- Lhiwf 71-1; 35 rp&,704; M's 138^^2)«—

Státes not have any statute similar to this Article 1893 C. 0.

17 Baudry-Lac p 492 6 660; 24 Laurent p 342Í353; 43 Dalloz Inr. Gen. No. 1373, on the authority of a case from a Court of Appeal in Orleans, Mandeville vs Pays, decided in August 14, 1845 and reported in Dalloz-Jnris Gen., 1846, part 2, p 72, tell us that such a clause is valid. But tlMj reason-,,3 in that case, is not convincing.

It. But the claim of the defendant to appropriate the amount paid by plaintiff is usurious. The price due by plaintiff was $600; the amount paid by him from February 8, 1912 to • November 14, 1916, a term of four years and nine months, was $341.00* , The highest conventional interest allowed .by law upon would have been^at 8$f$228.00. The balance is usury* But we must not lose sight of the fact that at no time did the plaintiff owe the defendant $600.00. On February 8th, 1912, the defendant received $10 on acount^and in -1912, $60; in 1913, $101 ; in 1914, $85; in 1915, $60; ahd in 1916, $35.

Conventional -interest cannot exceed wight pe» cent . 0. C., 2924 (2895).

"If any person shall pay on any contract a higher rate of interest than the above as discount or otherwise, the same may be sued for and recovered within 12 months from the time of such payment", id
"The stipulation of usurious interest forfeits the whole interest". 34 A., 893 (897); 11 A., 511.

The defendant's argument is that the ampunt paid by plaintiff represented the damages agreed upon for a violation of the contract. The only contract violated by plaintiff Was her failure to pay $600 on the different dates mentioned in the contract. The law on this subject is correctly laid down in Griffin vs His Crs. in 6 Rob., 220 as follows:

"If, then, any penalty or damages were agreed on, it must necessarily have been entirely for the purchaser’s default or delay to pay the money. There is, in our law, a marked diffenence between the damages which may be stipulated for the breach of an obligation to pay money, and an obligation to give a thing or perform an act. iShere the object of a contract is anything but the payment of money, the parties may determine the sum that shall he paid as damages for its breach, and Courts of Justice will not interfere with such agreements; hut, on the contrary, will lend their aid to carry them into effect. C. C., 1928 (1901) (1895); 1934 (1928) *5. But it is otherwise , when the contract is to pay a sum of money. The law has provided, that no damages exceeding ten per cent on' the amount that was to be paid, can be stipulated. Article 1929 (1935) of the Civil Code declares, that "the damages due for delay in,the performance of an obligation to pay money, are called interest. The creditor íb entitled to these damages without proving any loss; and whatever loss he may have suffered, he can recover no more". Article 2895 (2924) of the same Code, provides, that "interest is legal or conventional; if conventional, it cannot exceed ten per cent". Any contract, or.agreement, therefore, into whatever shape it may be thrown, which stipulates for more than Z7/ & tne present instance, the penalty was enforced, the purchaser would be made to pay, for the three ^ears elapsed, thirty per cent over and above the interest of ten per cent, which has been running from the date of the protest. This penalty, or these damages, (the name is unimportant) would clearly be awarded for the inexecution of an obligation to pay money. As the law forbids that such damages shall exceed ten per ' cent per annum; on the amojmt of money which the debtor has bound himself to pay, the inferior Judge acted correctly, in our opinion, in refusing to carry such a stipulation into effect, and in allowing only legal interest, pursuant to Article 1933 of the Civil Code, (now 25S3 (2531)".
"By no device or shift the wit of man can invent, can more interest be taken, or profit made than that which the law permits, on a loan of money". 9 R., 125; 3 Lav, 393; 4 H., 498; 6 R., 216; 12 R., 178;;1 A., 62; 6 A., 615; 11 A,, 511, 638; 12 A., 20— / eS&ifafzéáf &<****&+
"There is r.o distinction as to whether interest he usurious or r.ot, between the interest stipulated upon the price for which property is sold*%and the interest which may he stipulated for the locr. of money". D A,, 615.

The penalty for usurious interest shall be the forfeiture of the entire interest. 34 A., 893 (897); 11 A., 638.

Tor these reasons, I think the forfeiture clause of the contract is illegal and of no effect.


source: Caselaw Access Project

author: CHARLES F.CLAIBORNE, JUDGE.

license: Public Domain

text:
    Charlee F. Claiborne,, .Judge.
    POSTAL TELEGRAPH CABLE CO. vs. H. ABRAHAM & CO.
    No. 7851.
    October 25th, 1920.
   POSTAL TELEGRAPH CABLE CO. vs. H.ABRAHAM & CO.

No. 7851.

Appeal from Civil District Court, Kpn.Hugh C. Cage. Judge.

CHARLES F.CLAIBORNE, JUDGE.

This is a suit for the cost of messages and cables (sent by the plaintiff at the request of the defendants.

The defendants admit the debt, but plead in 'reconvention. They ayer that the plaintiff is indebted .tp them for the following reasons; That in January, 1904, through the plaintiff, they sent the following code message,

■P. F. E R D H A 1! Married 2000"; that the said message meant
"Sell June/July 2000 Bales of cotton"; that the plaintiff erroneously transmitted the following message:
"Married 300";

that by reason of said error defendants lost $577.15;

That in January, 1905, they sent another message through the plaintiff reading;

"Sell two hundred American Locomotive at forty-two open";

that this message was delivered with the last four words omitted; that by reason of said error defendants lost $100; making a total of $677.15 which they claim in reconvention.

There was judgment in favor of plaintiff as prayed for, and against the defendants rejecting their reconventional demand.

The defendants have appealed. They admit their liability for the amount of the judgment in favor of the plaintiff, but claim that there is error in the judgment rejecting their reconventional demand.

The defense to the reconventional demand is based upon tbe clauses of the two blanks upon which the defendants wrote their two applications for the messages, and which the telegraph company asserts formed the contract between itself and the defendants. This blank contains the following printed clausesi

"The Postal Telegraph-Cable Company transmits and delivers this cablegram subject to the terms and conditions printed on the back of this blank".

The clauses upon the back of the blank applicable to this case are the following:

"To guard against mistakes or delays, the sender of a message should write it legibly and order it repeated; that is, telegraphed back to the sending station for comparison. For such repeating,an additional charge of one quarter rate will be made. It is agreed between the sender of the message on the face hereof and this company, that said company shall not be liable for mistakes or delays in transmission or delivery, or for non-delivery, or misdelivery, of any unrepeated message beyond the amount of that portion of the charge which may or shall accrue to this company out of the amount received from the sender of this;

The Telegraph Company contends that these clauses relieve it from ary liability beyond the amount paid to it. by the defendants for sending the messages.

In the case of Tujague vs Western Union Telegraph Co., 11 Ct. Appeals 267, year 1914, this Court, following Primrose vs Same Co., 154 U. S. 1, said:

"A stipulation between a telegraph Company and the sender of the message, that the Company shall not be liable for mistakes in the transmission of a message beyond the sum received for sending it, unless the sender orders it to be repeated by being telegraphed back to the originating office for comparison and pays half that sum in addition, is reasonable- and valid". See also 251 U. S., 27.

'ie see no reason to change our opinion.

But the defendants urge two reasons why the Tujague case should be differentiated from this one.

They say that there is no evidence that the messages' in this case were unrepeated messages. If we admit, as we must, that the defendantShad no cause of action against the Telegraph Company unless they alleged and proved that they had ordered the messages repeated, then the burden of proof was upon them to establish the fact that the messages upon which they sued were repeated messages.

In 139 La., 10, Lurie vs Titcomb, the Supreme Court said:

"’.Whatever facts must be proven to maintain a suit on' its merits must be alleged to set forth a cause of action, even'though the allegations would be of a negative character. 143 La., 843; 509 (524); 120 La., 700.

But the defendants have overlooked-the fact that the application blanks on which they base their suit contain the following language:

"Send the following message, (send the following cablegram), without repeating, subject to the terms and conditions printed on the back hereof, which «re hereby agreed to».

The defendants also argue that while the clause limiting the liability of the' Telegraph Company is the recognized jurisprudence since the year 1910 when Congress passed the Act of June 18th.making the provisions of the Interstate Comnerce Act apply to Telegraph Companies, such was not the law in the years 1904 and 1905 when they send-the messages upon which they sue herein. In this they are mistaken, for the Primrose case in the 154 U. S., 1 was decided in the October term of the year 1893.

They argue, in addition, that the jurisprudence and public polipy of Louisiana in the year 1904 was opposed to the doctrine of the Primrose case. The only case to which our attention has been called which decides the exact point at issue in this case is Macheca Bros. vs Postal Telegraph Co., No. 1591 of this Court, reported in Opinion Book 12 p

That case was decided ip 1896- It is true that that dase was similar to this one under consideration as to the points involved, and that it was therein decided that the Telegraph Company was liable for an error in transmitting a message notwithstanding a clause similar to the one contained in the two blanks we are considering. But it does not appear in that case that the attention of the court was called to the Primrose case. At any rate, we do not consider ¡that a decision from this Court, nor from any court of this state from which an appeal lies, is sufficient to establish the jurisprudence or the public policy of the State.

This view of the case dispenses us from examining whether there is any difference in the liability of a telegraph company between a message in ordinary plain language, and one in a code or cipher language presenting neither doubt nor ambiguity.

Judgment affirmed,

October 25th, 1920.


author: Dlnkslaplel. J.

text:
    Grover C. Mouras. -vs- A. J. Fabacher.
    No. 7853.
    Court of Appeal. Parish of Orleans.
    Dinkelspiel. J.
   Dlnkslaplel. J.

Plaintiff claims substantially as was claimed in this Court No.7854, from defendant, under tbe following oircumstances. That Sa Friere stole from him, at the residence of his brother and sister, in the case above referred to, one diamond ring of the value, as plaoed thereon by him, of $300.00., and basis that claim on the evidence adduced in the suit No. 7854, already passed on by us, both of which were tried under an agreement as related in the case just referred to.

This plaintiff has less rights than his broth'er-in law and sister, Ur. and Mrs. Sidney Be Leon. He was instrumental in bringing this thief, Sa Friere, into the home of his family; he was the main instigator in having this fugatlve from justice boarding and lodging at the family residence where he, plaintiff also boarded and lived. He was the most intimate of any of the rest of the family with this man in question, and outside of the acknowledgement of the theft that he had stolen the property in question there is not a partióle of evidence to show that this defendant ever saw this ring or much less purchased it. Hence, it is our opinion, that under the authorities oited and under the facts proved, this plaintiff has failed absolutely to make any case whatsoever against the defendant.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the Court a quo be reversed, and judgment is now rendered in favor of defendant, dismissing plaintiffs suit. Plaintiff to pay costs of both Courts.

-Judgment Reversed-


author: Binkelsplel. J.

text:
    Mr. & Mrs. Sidney De Leon. -vs- A. J. Fabacher.
    No. 7854.
    Court of Appeal. Parish of Orleans.
    Dinkelspiel. J.
   Binkelsplel. J.

Plaintiffs, husband, and wif®, bring this suit against defendant alleging that one Tiburtio Sa Freire a non resident, cams to this City during the year 1918, meeting Crover C. Mouras, brother of one of plaintiffs, residing with them at their home íío. 2637 ht. Philipp ■Street.

That Se Freire falsely represented himself to líourds and to plaintiff.? as a man of good character and habits ds well as of means and social standing. That beleiving the representations made by the stranger, plaintiffs permitted him to ingreoihte himself with them, their family and friend3, and he boarded and lodged with them begining Kay 2nd. 1918.

That on or a’.out January 30th. 1S19, 3aid Ss Freire, as ne Was then known to plaintiffs, suddenly.departed from plaintiffs home being indebted to them for about '•ílSS.OO. board and lodging, and tnen and there, feloaio iously, did take, steal and carry away with him from plaintiffs home, embezzle and appropriate to his own benefit, valuable jewelery belonging to plaintiffs, namely two ladies solitaire diamond rings, taking them frote plaintiffs armoir, the Value of tx.e rings being $575.00., and then follows a description of the rings.

That immeadiately after the discovery of the di 3apg eat-inc of said stranger, that the rings, and also the ring of Kauras were found missing.

Plaintiffs instituted a search and notified the police with no results until they received information leading to the location of the fugitive in the otate- of California .'.here they wrote to him ?.nd received an answer making a confession of his theft and admitting x_.ax he nad disposed cf xi e articles , the rings, witn one A. J. Fabo.* O-'i-or, defendant, a keeper of a negro bar room at 10.35 ■braviar 'ornar of Rampart Ftreet. "..at t:.e> 'promptly pave ti.ia information to the polios and t-3 fi3trict íttornay, and aoout ti.e 17t'u. of April, ISIS, visitinj defendant, taay allege lie confessed receiving and oelnp in 0079333-ipn of tee jeweiery rsiej-yed to, cat claiming to „av3 bougnt team from "a Frsire.

Plaintiffs ter. aver t..at t..e, ?.re t..e sole owners of the rinps-in question wi.ici. were in tie unlawful possession of defendant, 9toler. by •'e Freire, ar.d by i.im disposed of to defendant, and who, althoup:-. fully informed of rlaintiff3 ownership, ha3 failed and refused to surrender -nd deliver tr.e two rir.pt to tnem, and ti.at i.is refusal and failure , aforesaid, is .vitneut lawful cause or ripp.t, and ..is possession of aur.e if not totally criminal, wa3 in cad faith under moat suspicious circumstances, out of his usual line of easiness and bears ti.e ear marks of fraud and colusión in order to defeat the rijntful owner3 of tr.e property in que91id,n. snd without detailing unnecessarily tie ct..er steps taker. i)y plaintiffs ir. t..is case to apprsu-und t..e fupaiive on account of ti.e coot to brir.p him hack freo, 'alifornia to foul siena, ti.ey ask for judjn int for ti.e unour-t of tneir claim and topetner .vit- tneir petition t..ey prayed for a writ of sequestration, pave bond and made t..e necessary affidavit, under the law, and ti.e writ vas issued.

refendar.t, first, in aroerinp to a rule for contempt for dlaobeyinj t.ie ordai-3 of "ourt in tie writ of sequestration by not producán•; t..e property, denied ail t..e allegations in t..e writ, but admitted t..at he did pure.-nse two certain dj.ai.ond rinps it pood imt,. ..avir.p no r.r.o.vleap t..at same were stolen, further t..at -e doe3 not t.-ink ti.at ti.e same cere stolen, but denies c..at 1.= ever attempt to conceal said furo..ass, ti.at ..e was in pood fait::, t..at paid a legitimate price for 3aid rings. Further answering defendant denies that same were stolen, on the contrary, the rings, as he believed then and now was the property of Sa Freire.

A rule taken to dissolve the sequestration was taken and the writ was dissolved. Subsequently the answer admits, after a general denial, the purchase of the two rings in question. He denies that plaintiffs were the owners or that they were stolen from them; denying further chat he never dii conceal the purchase, that they were bought in g good faith for a valid consideration being the full value, and prays for dismissal of the suit.

An agreement to try this case and the one No. 7853, of Mauras against the same defendant was made in the following terms:- " It is agreed that the testimony now being taken shall apply to both cases, they being against the same defendant."

Defendant, Fabacher, was placed on the 3tand under cross examination by plaintiffs and among other statements testified, that Sa-Fewire visited his bar room for about a week or ten days prior to his departure from th3 City of New Orleans; " that he looked like a negrc. to me; that he spoke english, and he offered to sell on one day one of the rings claimed by plaintiffs", which ring defendant took a pawn broker in this City and finding from him the value and adding to it the sum of -515.063. so that he could make §15.00. on the transaction he bought and paid for the ring in question. The next day the 3ame man came back to his saloon and went through the same thing with the other ring, and ascertaining the price from the dealer he made ^15.00. on this ring; in other words, he paid the man for the two rings $345.00. and sold them to .the -pawn broker for f-275.00. thus making a total of $30. on both transactions; denying that he ever bought a third ring belonging to Mouras, or that he ever 3aw more than the two rings in question.

The testimony of feúras, Vrs. Hary Kouras, Hr. and 'irs. Pidney re Leon together with Pa Friere's letter forming & ¿art of the testimony proves, Pa Friere had been a hoarder in the house of plaintiffs and a roomer there for a’oout a year or more; that he became intimate with each and every member of the family; that he frequented with them places of amusement, and that ha had absolute access and ■ the right, with the consent of plaintiffs, both husband and wife, also the mother and a brother, to go into any room of the establishment whenever it suited him, to do whatever he choose, that he had always behaved himself as a gentleman, that he Was more or less an intelligent man, speaking several lmguages, claiming to he a Brazilian from some family there of note with large means, having no occupation, in other words, a man of the world, * nothing to do and plenty to do it with"; and until he became a fugatlve from justice and under his own confession a thief, these people, plaintiffs and brother; in fact, the entire family , trusted in him implicitly , had every confidence in him and gave him entree, not only to their own house but introduced him to relatives»** and friends.

The defendant, on the other hand, only knew tnis man for a short period. He noticed when he entered his bar room that he wore several diamond rings on his fingers, and when eventually one of these rings wa3 offered to him on one occasion, not being a diamond merchant, he went to a man whose business was.to deal in diamonds and who understood their value,who fixed a price which he subsequently paid after the purchase by defendant from Ha Friere, so that defendant bad such right, in our opinion, to " this transaction as he did as plaintiffs and the rest of the family had in leaving their doors wide open and their armoirs unlocked and give this theif an opportunity 7,-í ich Us finally took in stealing these rings iron; plaintiffs .

"e, wit» this snort history of ti.s transaction tnere is ore question for our solution, that is, could defendant purchase from this thief property which he the t_isf had. stolen from plaintiffs'? And v;e answer that question in the negative, and «e are supported tap in thiB by the articles of the Civil Code,

Art. 33-50. Title of Depositor. Things Stolen.- "Re cannot require his. who made the deposit to prove that he was the owner of t,.e thing. Yet if he discovers ti-at the thing was stolen and who the owner of it i3, he must give him notice of tl.o deposit, requiring him tc claim within due time.

If the owner, having received due notice, neglects to claim the deposit, the despository is fully exonerated upon returning it tc the person from t/hom he received it", unduly Art. 5313. 11 A thing -JCKKKI received must be restored in

Art. 3w:53. ""'ale of a thing belonging to another is null,"

In 5 Court of Acpeal. p. 165. Hiddleston Kenner vs. Hasquale Corannuzza, the syllabus read: " The sale of a thing belonging to another is null and the thing cannot bo alienated pending the action so as to prejudice the right of the claimant."

Cyc. Vcl, 55. p. 361. G. "Property procured by wrongful or felonious acts.

IKSbSii " bona fide purchaser is not protected as against tne claim of the true owner where the eeller has obtained possession cf property by wrongful acts, if without any delivery by or consent on the part .of tne owner as where wsnee the goods obtained by ^trespass. The rule / has also been laid down that a bona fide purchaser is’ not protected where the vendor obtained the goods by means of a felony". Citing numerous authorities.

In this Court plaintiffs have prayed for an amendment of the judgment of the lower Court claimirng §575.00. as the walue of the property stolen. We cannot allow them this sum, but we must amend the judgment by allowing plaintiffs the same amount that defendant received from the pawn broker for the two rings in question which is the sum of §375.

It is therefore, ordered, adjudged and deoreed, that the judgment of the lower Court be amended, and that plaintiffs do now have judgment against defendant in the full sum of §375.00-, with interest from judicial demand. Defendant to pay costs of both Courts. .And as thus amended the judgment is affirmed.

-Judgment amended and Affirmed-


text:
    COURT OF APPEAL PARISH OF ORLEANS
    GERMAIN HOUNTHA and JOSEPH RIZZO vs. NEW ORLEANS RY. & LT. CO. et al.
    No. 7857
    February 1921.
   OH JOINT HOT ION of Hall, Monroe & Remann, and V/. J. Sutton, attorneys for Hew Orleans Ry. & It. Co., appellant, and B. V,'. Hernán, attorney for National Surety Co., appellant, and Conrad Meyer, Jr., attorney for Oermain Hountha and Joseph Rizzo, appellees,

IT IS ORDERED that the appeals herein taken from the judgments herein rendered he discontinued.

New Orleans, la.


author: By his Honor John St. Paul.

text:
    NO. 7857.
    JOSEPH RIZZO, ET AL. VS N. O. RAILWAY & LIGHT CO, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0PI1II0H,

By his Honor John St. Paul.

\ Joseph Rizzo and Oermain Hountha, Members of the Pire Department, were injured whilst responding to a fire alarm by reason of the apparatus on which they were riding having collided with a street car. Hountha was bruised about the right hand and body, and was detained at home eleven days; Rizzo suffered oontusions of his right foot, left elbow and baoh, and was detained at home eighteen days. The trial judge allowed the former $126 and the latter $200; and defendant's have appealed.

The faots of the oase appear to us to be as follows; About three o'clock in the mornlap a water tower, i..•■».#!! oy three horses abreast and keeping to the right, rushed up the street with headlights burning brightly and gong olanging loudly. Arrived at a cross street, the tower turned out to the left and in doing so swung aoross the path of an approaching oar. Before the tower cleared the track it was strpek by the onoomlng car and.partly demolished.

The evidenoe la conclusive that the on rushing tower was visible and audible more than a bloah a wary (say 300 feet or more); that the oroBs street is more than 90 feet wide; that the tower started to make the turn abput 30 or 40 feet below the oross street, the oar being then from 50 to 100 feet above the street and approaching at full speed; that the oollision ooourrad atout the middle of the cross street; and that the motorman made no effort to get his car under control at least until the tower started to turn.

There is some conflict of testimony as to when (if at all) the motorman started to check his oar, hut that may he disposed of hy accepting his own testimony that although he saw the approaching vehicle he did not recognize it as an apparatus belonging to the fire" department until the moment when it started to turn, whereupon he then attempted to check the oar but could not do so in time.

But there was no excuse for the motorman's alleged failure to recognize the apparatus; with its three horses £t abreast and loud jarring gong.^coúld be nothing else; and it was the motorman's duty to recognize it at once. Thereupon he had but one thing to do, i. e. "stop his car immediately", as he himself says.

The truth is that he could not have kept a proper lookout, for even on the trial Of the case he did not know that the apparatus with whloh he collided was drawn by three horses but thought there were only two.

In Boylan vs Railway Co, 109 La 185 (190) it was held that it was the duty of a motorman to inform himself of the location of fire engine houses along and even near the line on will ah his car is operated.

November 8th, 1920.

A fortiori therefore he 3hould know and recognize the apparatus of the fire department when he sees it. And we have no hesitation in holding that it is the duty of any one undertaking to drive a vehicle upon the public streets to know and recognize at once the apparatus of the fire department and be ready to yield the right of way as soon as it appears.

And so when the apparatus of the fire department appears upon the streets responding to an alarm all other vehicles should draw out of the way¿ and street cars {which can not leave their track) should at once come to a standstill, ¿O' or at least^brought under full control. See Dole vs Railway Co, 121 La 945.

We therefore think that defendants are liable; and that the damages allowed are very conservativa.

The judgments appealed from are therefore affirmed.

Judgment Affirmed.

Raw Orleans, la,


author: CHARLES F.CLAIB0RN3, JUDG3.

text:
    Charles Claiborne; Judge.
    LA. BUILDING & CONTRACTING CO. VS JOSEPH BENINATI.
    No. 7859
    November 22d, 1920.
   LA. BUILDING & CONTRACTING CO. VS JOSEPH BENINATI

No. 7859.

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

CHARLES F.CLAIB0RN3, JUDG3.

This is suit for rent. The plaintiff alleged that it had leased from the New Orleans Terminal Company the premises Nos. 227 and 229 N. Rampart Street; that it had .subleased verbally by the month beginning February 1st, 1917, to the de - fendant, Joe Beninati, the same premises for the monthly rent of one hundred and ten dollars payable in advance; that it made demand for the month of February, which the defendant refused to pay; making the affidavit required by lawt the plaintiff issued a provisional seizure, and prayed for judgment for $110.00 with lessor's privilege and costs. This suit was filed February 6th, 1917.

The defendant denied that he had made a lease with the plaintiff, and averred that he had no knowledge that plaintiff held said property under lease from the Terminal Company other than plaintiff's averment; he further averred that he had been a. tenant of the Terminal Cpgipany fpr abou^ five yearsat $45.00 per mdrAh^br the same premises; tha*he was in possession of them when he was informed on February 1st, 1917 by the plaintiff herein^the Louisiana Building and Contracting Co.ythat it had secured the lease on said premises; that he asked to see the lease, which plaintiff failed to exhibit; that plaintiff's agent then stated to him that, if he desired to remain in said premises, he would have to pay $110.00 per month, which he refused to pay, or even $45.00 until the end of the month; that the amount demanded of him was not the amoünt due, and he did. not know plaintiff>as his landlord; that he still believed that the Terminal Company was his lessor, as he had never been notified by said company to the contrary; he denied that he intended to remove the property out of the premises; and he prayed that the suit be dismissed. He swore to the truth of his ans i©r.

There was judgnent in favor of plaintiff, and defendant has appealed.

The case turns entirely upon, q,question of fact. As /¿í*' there is no written evidence^ it depends upon the appreciation of the testimony. Defendant admits that he occupied said premises as the leasee of the Terminal Company at ,$45.00 per month payable at the expiration of each month. When the plaintiff acquired possession of said premises as lessee of the Terminal Company, it succSeded as subrogee to said company, as lessor of the defendant upon the same tenas and conditions, unless the plaintiff and the defendant agreed to different terms. 8 N. S., 560; 44 A., 256; 117 La., 534. The only question of fact therefore is, did the plaintiff and the defendant rol?e and agree upon new and different terms of lease? The burden of proof rested of course upon the plaintiff, because when a condition of things is shown to exist the presumption is that it continues until a change is proven. 38 A., 53; 15 A., 715; 4 A., 557; 7 R., 238; 16 Cyc, 1052 § 3 Vo. Evidence; 22 A. & E.E. Law p 1238 5.

The only eivdence -upon the question, on the part of the plaintiff, is the testimony of James J. Gazin, the manager of the plaintiff company. He testifies:

Q. Mr. Gazin, you represent the Louisiana Building & Contracting Co.?
A. Yes, sir.
Q. Did your Company lease from the Terminal Co. the property 227 and 229 N. Rampart Street?
A. Yes, sir, we leased all that property.
Q. I show you this lease, which is already offered in evidence, and ask you if that is the lease?
A. That is the lease; that is my signature on there.

^Tbis lease is dated December 22d, 1916.^)

Q. Mr. Gazin, after the signing of this lease, did you call on Ur. Beninati with reference to the rent?
A. I bad better explain that. A couple of days after I signed up that lease, we started repairing, which the contract said we had'to spend so much money on repairing these buildings. We had to do all the repairs and put them in good condition. 'He had to apend $1800.00 to,put them in condition, so we could get some rent out of. them, and Kr. Beninati came over and asked me if we had taken hold of them, that he heard from Kr. Bender, of the Terminal C'o,, that we had taken them over, and wanted to know if I would let him stay in the building. I told him I would let hiu stay there provided he paid the rent we asked.
Q. 'Then did you have this conversation?
A. That was somewhere right after New Year, right after the signing of the lease. 7/e started to work on there right after the ^irst of the year.
Q. Hoy/, just after New Year, you had that conversation with him?
A. Yes, and then I told him the rent would be $125.00 for the two buildings, and he figured it with me it would not justify kirn to keep these buildings at $125.0(1 a3 he was getting them previously cheaper, and I figured with him where his tenants were paying him amounting to $140.00 a month, and his rent was free for his pressing— sliop and stuff and places where he kep£s the automobiles was free. He said:. "'Jell, I would have to think it over"; and a few days after that, he cane back at me with a proposition, and asked rr.e to givo him the building.
Q. ’.Then was that?
A. A couolc of days afterwards, and I told him I would take it up with my Company, ar.d about a 'week afterwards, v/e started the repairs, and I went to him and told him I had token it up with my Company, and the very best we could do with him was to let him have those buildings at one hundred and ten dollars rent, paid in advance, in accordance with t! e Torminal Co:.oary's lease, as we hod to pay then o;rs in advance. Then ho «aid: “'Jell, I would like to stay there", :.r.d le wished he ’would keep the buildings, th’-t he spoke to the tenants, on,’., r at f.at tine, Hrv.Kyar. all tl.o tenants c.r: e over to see r.e and a Vice-.’. ■ .e if I should pay it. x x x I told them if hr. beninati wanted the prop-rty, 1 would iTive him the preference, which ,-y Company agreed to re~t to l.ii: at 0110 per month for tie two build:we, rlich he agreed to take Ac" x x x
Q. And I understand you to say, Hr.Gazin, after a discussion as to the rental of t!;sse two buildings, an agree-i.er.t was finally concluded?
A. Yes, at or.e hundred ard ten dollars.a month.
Q. And you had that agreement with hr. Joseph Benir.ati in person?
A. In person, x x x

On cross examination, the witness repeats this testimony and says that the agreement was made between the 14th and 16 of January, that Beninati never told him what rent he v’cs paying; that when he called for the rent on the first of February, Benir.ati refused to pay without giving ar.y reasons.

Joseph Beninati testified that he had occupied the two properties 227 and 229 Korth Rambert Street as the tenert of the Terminal Station Co. for nearly five years at $45.00 a month; that he ¡¿new no one else as landlord until February first when Yr. Gas in came to him and asked him to pay tile rent to him, $110.00 for the two houses.

Q. Fow, stats the conversation that you had with Hr. Gazin, what he told you, and what you told him?
A. He told me he is the representative of the landlord' now, and if I want to stay and keep that two houses, I have to pay him $110.00.
Q. Whet did you tell him?
A. I tell him I don't know he is the landlord; I know the landlord is the Terminal Station Co., and -I pay the T.-n.'.ir-al Station $45.00 a north when the month is up,, r.ot in advance, either, and if he represents the landlord, and he show me any paper after the month is up, I will be satisfied to pay $45.00.
Q. Did, you and Hr. Gazin enter into any agreement?
A. No, sir, we have no agreement.
Q. Did. you ever agree to pay him $110.00 in advance?
A. No, sir.
Q. Did you agree to anything with him?
A. No, sir, nothing at all. x x On the same day, on the first of February, in the evening, about six or seven o'clock two other gentlemen came along down there, and they told me they was the representative, the collector for the Louisiana C-'tfntracting and Building Co,, and they want to collect-$110.00 from me. 1 say: "How do I know who you are? I pay my rent to the Terminal Station Co,, and I pay $45.00 for that two house". They say: "So you absolutely refuse to pay". I say: "Certainly, I refuse to pay, because I pay to nobody outside of the Terminal Co." and they walked off; I invite them to come in, and they walk out and never . say nothing, x x x

In the presence of this conflict, we must apply the rule of law that witnesses must be- weighed not counted. If both witnesses, one practically the plaintiff, and the other the defendant, appeared before us equally as credible, plaintiff could not recover. But if the credibility of one of tjiem has been impeached, then the scales of justice must incline towards the other. Nothing to which the plaintiff's manager, Gazin, has testified has been contradicted except by the defendant. Not so with the defendant.

I. He averred and reiterated, in his sworn answer, that he was not aware, prior to the first of February, that his lessor, the Terminal Co,, had leased the premises to the plaintiff herein, the Louisiana Building and Construction Company; he testified to that fact repeatedly, and gave it as one of the reasors why he would not pay plaintiff when it called upon him for the rent on February 1st.

His testimony on that point is contradicted by the testimony of two disinterested witnesses, as follows:

Mr. W. S. Bender says:
Q. Mr.Bender, in whose employ are you?
A. I am now employed as Chief Clerk to the Vice-President of the N.O. and North-Eastern and the New Orleans Terminal Co., and the Executive General Agent of the Southern Railway.
Q. And in that capacity, you take cognizance of the general business of the Company, the leasing of buildings and so on?
A. Yes, sir, we will do that. It might be well to state that my position now is different from what I occupied formerly, especially at the time that the leasing of the property under consideration in this case was taken up. At that time, I was Secretary of the N. 0. Terminal Co., and served as Chief Clerk to the General Manager of the Terminal Co. , who had direct charge of the leasing of all of these properties along Rampart Street, and, as his Chief Clerk, I personally prepared and handled all of the conditions respecting the leasing of these properties to the Louisiana Building and Contracting Company."
Q, Now,Mr. Bender, after this lease was entered into, did you have any conversation with Mr. Beninati regarding the leasing of this property by the Louisiana Building & Contracting Co.?
A. Yes.
Q. Will you please state the nature of that conversation?
A. The occasibn of my talking at all to Mr. Beninati Was by reason of the fact thfet Mr.Kelly hanpened to be out of the office one afternoon; I am not certain about the • date, but I think it was early in January, shortly after this lease was drawn. All of my dealings with the Louisiana Building and Contracting Co., all of Mr.Beni-, nati's dealings in connection with the ratproofing work and the subsequent prospective lease of this property had been handled by him with Mr. Kelly. It happened that early in January, I think, or the latter part of December, he called at the office in company with some gentleman to ask about the ratproofing of these properties. I explained to him that Hr. Kelly ms not in, and, in the course of the conversation, he inquired as to this ratproofing work, and I told him that a contract had been let with the Louisiana Building and Contracting'Co. for that work. Hither he or the gentleman who accompanied him asked something about the lease of this property, and I said to him: "We have leased these properties to the Louisiana Building and Contracting Co.". The gentleman who was with Mr.Beninati siuply threw up his hands about in that fashion (Indicating): "fell, we are losing our time here talking about this proposition; it is closed up". There was nothing else I could tall the gentleman, because this contract had been signed absolutely with the Louisiana Building & Contracting Co. in December, the 22d of December, the contract shows”, x x x I make that statement to show how little attention we paid to the propriety of this gentleman being notified, but he was notified by me, as-a positive fact".
Q, You gave him to understand that this lease would go into effect from the first of February on?
A. Yes, sir. x x x

Although Beninati admitted that conversation with Mr. Bender, he again denied that the latter had informed him that the property had been leased to the plaintiff. , But he failed to produce the gentleman who had accompanied him as a witness to Mr. Bender's office, to corroborate his.own testimony and contradict that of Mr. Bender^ nor does he account for his absence.

John S. Poweil is next examined. He says:

Q. Hr. Powell, in whose employ are you at present?
A. N. 0. Terminal Company, for the last 16 years. I am Auditor for the Company.
Q. Did you have any conversation.with Mr.Beninati relative to a lease of certain properties from the W. 0. Terminal Company to the Louisiana Building & Contracting Co?
A. I advised him personally in my office that the building were tented'to the Louisiana Building & Demolishing Co, due to the contract that was let by Kr. E. A. Kelly.
Q. And you told him when the new landlord would take possession?
A. Yes, sir.
Q. When did that conversation occur?
A. I think that was some time in the lattes part of ■December.

There is no specific denial by Beninati of the testimony of this witness, nor of the fact that he received notice from him.

There is no doubt that the preponderance of the testimony upon this question of notice is with the plaintiff, and that this Court must come to the conclusion that Beninati did not testify truthfully upon this poipt. 10 15., 677.

In Singer'vs Carondelet Canal Co., 39 A., 484 the Court said:

"On the 23d of August, 1884, the defendant Company gave Otto Touche written notice that the privilege granted him to run a flat across the Bayou was Withdrawn. He denies having received the letter, but a witness swears positively that he handed it to him, and we are inclined to believe his statement, as he is without interest in the suit." 33 A., 1349.

Where the testimony of plaintiff is contradicted by that of defendant,judgment will be given in favor of the party having the preponderance of evidence. 23 A., 501; 125 La., 619 (638).

The testimony of a witness which is successfully contradicted as to one fact in the case, will not be sufficient to establish another fact in the some case. 26 A., 591 (592).

The maxim "Ealsus in uno, falsus in otmibus" is another element destroying the credit of this witness. 2 Evans Pothier p 185..; 30 !.& S.2. L.p 1072; 107 La,, 298 ; 40 Cyc, p 2586; 7 Wheaton, 334 (335).

II. Beninati also testified that be owed only one month’s rent, December 1916. The Auditor of the Terminal Comuany swore he owed four months anterior to February. 1st, 1917. Beninati promised to produce the receipts to corroborate his testimony; no receipt is in the record for December 1916. There is a receipt dated November 20th, ISIS for $20.00 for the house 227 N. Rsjnoart Street for the month of Auirust 1916; the next receipt is dated December 4th, 1916 and-is for $100.00 for rent of "houses on K. Rampart Street"; out besides 227 and °29 Rampart, Beninati also rented from the Terminal Company Dos. 367, 343, and 345 N.Rampart Street.

hr. Powell testifies:

.A. "He (Beninati) was not accustomed to payin'; any'recular time. 'He were always after Beninati to nay that rent, and that is the reason he was bad:, and we contemplated filing suit against Beninati for that back rent".

In an ina,uiry concerning the veracity of a witness his Character for honesty may be examined. 45 A., 508.

Besides the conclusions of law to which we have just referred^ this case dependa upon the veracity of witnesses. The Judge of the Trial Court saw and heard Beninati testify; he decided against him, and we see nothing in this record that would justify us in reversing his judgment, but on the contrary much to confirm it. 109 La., 520 (524).

In Ball, Lyons & Co. vs Lignoski, 24 A., 484, the Court said:

"In the first place it must be remembered that the Judge saw and heard the witnesses, and so far as there may be any conflict his decision nmst have groat weight, snd ought not to be reversed unless manifestly erroneous".

6 M., 421; 47 A., 1446.

In Laford vs Weber, 73 A., 253, the plaintiff sought to make the defendant, a sheriff, liable for failure to return an execution within the delay reo.uired by law. There was judgment for defendant; ' The Court said:

"In this case the Sheriff alleged, and offered evidence to establish, a legal excuse, that he acted under the advice and direction of the attorney of the oarty in whose favor the writ was issued. The Sheriff and the Attorney (for-plaintiff) alone have testified in this case. The former states positively that the attorney authorized and instructed him to retain the writ in his hands, while the attorney denies it as positively. The question to be decided being one of fact, the opinion of the judge a quo before whom the witnesses testified is entitled to great weight. Quoting 5 La., 31; 13 La., 412; 3 A., 163; 21 A., 169.

The judgment in favor of the defendant aa affirmed.

Tor these reasons tho jud.-ar.ent in favor of plaintiff is affirmed.

November 22d, 1920.


author: By hie Honor John 8t. Paul.

text:
    NO. 7860
    JOHN MIHALJEVICH VS MATO PARUN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opibiob.

By hie Honor John 8t. Paul.

Plaintiff olain¡a $1180 for haring "lodged ana boarded x x defendant from Uaroh 14th 1918 to June 23rd 1916, at an agreed charge of ‡30 por month"; upon whioh defendant haa paid nothing "although often oalled upon to do bo and repeatedly promising to Battle." Defendant donles the claim and alleges that plaintiff "never did demand payment of any board from him; but on the contrary, on Uaroh 16th 1916 an aooount waa Bottled between plaintiff and defendant, that pluintiff waa largely indebted unto defendant and that plaintiff thereupon exeouted and delivered to defendant his note for $678.41 payable ten months from date"; and that when said note matured, towit, January 16th 1917, defendant sued for the amount thereof, whioh plaintiff then paid.

Ihe prosont suit was filed flovembor 16th 1916, that la to say just two months before the aforesaid note matured.

I.

Defendant also pleads the preeorlptlon of one year under C. C. 8634; but the plea is not well founded. Under the Juris prudenoe the preeorlptlon of one year does not apply to claims for board and lodging furnished by private peraone, but only to the olaims of "innkeepers and suoh other persona", that Id to say, of suoh as make a buslneea of keeping lima and lodging houses. plaintiff in this oaaa waa not engaged in suoh business. See succ of Nitch, 22 An 316; Succ of Newton, 22 An 621.

IX.

1. Plaintiff testifies that defendant boarded and lodged with hini during the time claimed and under a diBtinot agreement with him to pay one dollar a day; that defendant fulled to pay him only because he olaimed to have nothing with which to do so until he should withdraw some money from a oertain homestead; and that defendant denied the debt for the first time only on June 25rd 1316, when he oeaaed to board and lodge with him.

2. A woman who aooied for plaintiff testifies that she heard defendant as't plaintiff to "let him Btay there and board, and íc x sc x he was willing to pay one dollar a day", to which plaintiff had agreed; that defendant boarded and lodged with plaintiff regularly during the period alaimOd.

Defendant udmits that he boardod with plaintiff, but denies that he was there by the iftonth, towit, "sometimes I did not eat five times in the month". He denies that he lodged with plaintiff except for a few days in the beginning; afterwards he lodged In his own house. He admits that a three dollar a day was reasonable for iM meals a day when he he topic them, but denies that there was any agreement about tha price. That on the oontrary, ha was willing an4 haft expressed hia willingness to pay whatever plaintiff should think fair; but that plaintiff and tha partner whoa he had at the beginning had refused to accept any compensation other than the remission of interest on some $3000 whioh the partners owed him as the purohaae prioe of a general store whioh he had sold them; with whioh remission of interest and the services he rendered in and about the store, they declared themselves fully oompensated for his board. Shat he and tho two partners had settlements together at intervals, at whioh their aooounts were adjusted, a balanoe struck, and the notes of the partners renewed for whatever they then owod. Shat he had protested that he was paying too little, but thoy had expressed themselves satisfied that on one occasion he had voluntarily given them an extra $60 saying that ho had oooasionally brought friends to dine with him; whioh $60 the partner^ had refused to take but had turned over to plaintiff, who (after aomo hesitation) finals aooepted it.

4. She testimony of the partner corroborates that of defendant in every particular; hiu testimony being aleo that tha arrangements about the board were a oonoern of the partnership, and not of plaintiff Individually as the plaintiff olaims.

III.

Jirón tho foregoing a a va ral things are to he noted, viz

1. Shat plaintiff sues on a contrast for $30 a month, hut has offered evidenoe only of a contract for $1 a day. These may seem to he the some, hut they are not; one being a contract by the month tho other by the day. under the former defendant would owe $30 for each month oven if he haa taken hut a single meal in that month; under the latter he would only owe for as many days as he had taken meals (as to which there is no proof whatever)

2. That plaintiff sues upon, and has offered evidenoe of, an alleged oonuraot with himself individually, and for a fixed price, entered into at the time the store was sold; and that the witnesses are two to £## two that no such oontruct was entered, into.

2. That long after the partnership v/ae dissolved and some nine months after defendant had Ceased to board with him, plaintiff again renewed hio note for the bule.noo which he owed defendant; although defendant had. denied the board debt at the time ho left. That plaintiff again waited eight months more (or 17 months in all) to bring this suit; that is to say until within two months of the maturity of the note given by him.

IT.

Se are therefore of opinion that plaintiff's olaim should have been rejected, and for these reasons;

1. Praetermitting the teohnioal point that one cannot recover at all upon a contract different from that sued upon, it is none the less clear that plaintiff could recover at moat only one dollar for each day on which defendant aotually toot his meals; and thero is no proof whatever on that point.

2. Whilst the number of witnesses i3 the same on both sides as to whether or not the alleged contract war. ever entered into; nevertheless they are two to one that plaintiff made no olaim under it hoforo the partnership was dissolved, and it is certain that he took no steps to enforce it judicially until nearly five years after its inception, and nearly 13 months after its termination; nor yet until within two months of the time when his nota would become due. These circumstanoes we tí ink sufficient to throw the preponderance of evidence toward the negative.

2. The fact that nearly a year after defendant had oeased to board with plaintiff, the latter executed his note in favor of defendant with interest and attorney's fees, is evidence persuasive of a final adjustment of aooounts between them; which adjustment should not ho disturbed exoept upon the most oonvinoing evidence of fraud or error, "A nota, due 1)111 or aooeptanoe may sufficiently show the admission of a balsnoo to oonstitute an aocount stated", I Oyó 37Z, note 99. And "while an aooouttt does not operate na an eatopnei, it is nevertheless the Ve/ rule that, a settled or stated aocount is oonclusi«B in the absence of frond, mistake or error; and the burden to impeach it by olear and convinoing testimony rests upon him rho on such (.'rounds would escape its binding force". I Cyc 455 note 89. See also Southern Pacific Co vs McMillan Co, 8 Orleans App 14, *'/a^ "«?{"■?>)

November 22nd, 1920.

(i'ho judgment appealed from is therefore reversed, and it io now ordered that plaintiffs demand bo rejected at hie oost. in both oourts.

New Orleans la,


author: CHAHL'SS F. CLAIB0RN3, JUDG'3.

text:
    Charles F. Claiborne, Judge.
    XETER REALTY LIMITED VS JOSEPH F. MARTINEZ, Appellant.
    No. 7861
    December 6th, 1920.
   XETER REALTY LIMITED VS JOSEPH F. MARTINEZ, Appellant.

No. 7861

Anneal from Civil District Court, Hon. H. C. Cago, Judge.

CHAHL'SS F. CLAIB0RN3, JUDG'3.

This is an "action to establish title", under Act 38 1908, to the following described real estate, viz:

Two lots of ground, situated in the City of Hew Orleans, _ in the Souare Ho. 1031, bounded by Hew Orleans, Grant, (late Genius), N. Johnson (l'-te Celestino) and Allen (late St. Bernard), Streets, designated as lots !'os.26 nncl 27 on a nlan of Grioux and Castaing, dated July 5th, 1852, deposited in the office of P.^.Lsresche, late Notary; lot 26 measures 32' front on Allen Street, 116' 8'' 3"' deen on the rear line on an oblioue lino, by about 136' deen on the line of lot 27, and 213' 4'' 3’’* deen and front on Genius Street: Lot 27 measures 63 ' front on Allen Street, 136'deeJ) on the line of lot 26, and 115' 8M 4'1* deep on the line of the hypothenuse, said lot forming a rectangular triangle. According to a plan found in the record the location of these two lots is as follows:

The plaintiff averred that it had acquired these two lots by act dated August 4th, 1905, registered in the Conveyance Office on January 25th, 1906, from the Auditor by virtue of Acts 80 of 1888 and 126 of 1896-; $hat theBe two lots had been adjudicated to the State for the taxes of 1882 and 1883, assessed in the name of Mrs. C. Auguste, according to two acts of A.A.Ker, late hotary, dated February 14th, 1885.

Plaintiff further averred that said two lots are now and have always been vacant; that Joseph P. Martinez is claiiiiisag said two lots by virtue of a sale made to him on March 12th,1906 by the State Auditor under same Act 80 of 1888 and 126 of 1896.

Plaintiff prayed for judgment in its favor recognizing it as the owner of said two lots.

The defendant pleaded the prescription of three, ten, and thirty years based on continuous ohysioal possession during those years. The plea was referred to the merits.

For answor, the defendant denied that the plaintiff was owner of the two lots, and denied that they had always been vacant. He averred

"that on May 31st, 1886, he acquired tha said oroperty at a tax sale made by -the State in his favor as will more fully apoear from the certificate and deed of that date made part of this petition (answer) and marked for identification "D 1"; that immediately upon said acquisition he took possession of 3aid lots and ha3 occupied them ever since. That again on March 12th, 1906, he acquired the same from the State for State Taxes for the year lOoS^as appears by act annexed marked "D 2"; that from 1886 to 1905 he has naid all taxes due the State for the years 1876 to 1905 as atrasars by suit Ho. 25,488 of the First City Court; and that from 1906 he has paid all City and State taxes on said lots'; and he prayed for judgment in his favor recognizing him as the o-mer of said two lots." There was judgment for plaintiff as prayed for.

After a refusal for a new trial, the defendant has appealed.

The first question presented Í3 the prescription pleaded by defendant, i/e find no document marked D 1, referred to in the answer. All we find is a receipt, not identified by any mark or number, dated Kay 3l3t, 1836 from the tax collector to J. P. Martinez for one.dollar as the price of adjudication of a lot of ground in Square No.1031,measuring 63 feet froAt on St. Bernard Street by 136 feet deep,for State taxes of 1878 and prior years, assessed in the name of lirs. H. Cheval. Conceding that this receipt can be the basis of a title under Act 8?, of 1884, it cannot be a perfect title unless it is shown that Martinez paid all taxes due on the property from 1880 to 1886. 42 A., 677, Martinez vs Tax Collector; 47 A., 914; 48 A., 52; 49 A., 855; 117 La,, 331, 354; 43 A., 989.

This has not been shown. On the contrary, the State tax certificate dated December 17th, 1917 shows that the State taxes for the years 1885 and 1836 are still "due", and an affidavit in the record, subscribed by Martinez asserts

"that, he has paid all taxes thereon, City and State from 1886 to date".

Besides^the tax sale for taxes of 1882 relied’ on by the defendant makes proof that he had not paid the taxes of 1832 at the time of the sale to him in 1906.

Neither do we find in the record Document marked ¶ 2". We find a document marked "Deft 8" which is an Act of sale dated March 12th, 1906 by the State Auditor to Jose P. Martinez of certain lots in Square 1031 measuring 62 feet front on St. Bernard Street by 136 feet deep - for unpaid State taxes of 1882, on the property of "Mrs. A. F. Cheval". This suit was filed on June 28th, 1917 and the defendant was cited on the next day - more than ten years after he had acquired title. Therefore the only prescription defendant can plead is that of ten years, if he took possession on the date of his title of 1906.

It is well to notice here that the property claimed by defendant and described in title set up by him measures 63 x 136, and corresponds in description with the lot No. 27 claimed by the plaintiff. Therefore defendant does not set up title to lot 26 for which plaintiff is entitled to judgment as far as defendant is concerned.

On the question of nossession the first witness examined on behalf of the defendant is Anthony Tegar. He says he is acquainted with lots 26 and 27 of Josenh Martinez; he examined the lots about two or three years; they were fenced in by Josenh P. Martinez; he was requested by Martinez to sell those lots; at the time he was in New Orleans, the lots were vacant.

The defendant J. P. Martinez testifies that after he bought the property in 1886 he had it fenced in, and nut un signs for rent or for sale; he has paid taxes on the nronerty; he has been in possession ever since and no one has disturbed him since he bought it.

The defendant is blind, and has been for many years previously.

Mrs. J. P. Martinez, wife of defendant, testifies that the nronerty was fenced in by a man named Denis Mitchell, and Martinez rented it for a oasture to Bambeau and to Perez and they had to keep the fences in order; her husband has been in nossession since 1886 when he bought and has never been disturbed; the only tine she has ever seen the nronerty is when there was a circus there, about 20 years ago. neither the party who built the fence, nor the lessees have been oroduced.

J. P. Martinez, Jr., son of defendant, knows the lots well, was taken there by his father when a boy 11 years old; in 1913 there was a good fence around the nronerty and a sign for sale; M. P. Arnoult, real estate agent, had charge of selling the property; ever since he knows himself there has been a fence around that property; peonía would take the fences and burn them up or steal them.

In rebuttal plaintiff offered three -'itnesses:

Josenh W. Lennox, a building contractor, director of Interstate Trust & Banking Co., says: In 1916 there were no fences around the square or the lot; he examined the nronerty to make a renort on the nhysical condition of the nronerty and its value.

Armstrong Donaldson is a real estate agent; knows the two lots 26 and 27; first saw them in 1911; had then in charge to 3ell then for account of the Xeter Realty Co; there were no fences whatever around the two lots, nor anywhere in the souare, open snuare, virgin soil; he out uo the fences there in 1917 at the request of the Xeter Realty Co.; there were no fences aount the square at all; it was vacant; the first fence out uo around those lots was in Kay 1917 by one Cousins to whom he gave ten cents a running foot for doing it; at that tine be out up three fences around three lots in that square.

Joseph H. übert is a real estate agent, knows the two lots because he owns prooerty in the neighborhood; they Were fenced in about two years ago; for eight or nine years orior they were vacant; there were no fences in the square; he used to go across it uoon a oath nearly every Sunday.

The Judge below gave no reasong^for judgment nor did he, in his judgment, refer to the oíase of nrsscrrotion.But it is evident that he overruled it. As his opinion was based upon the credibility of witnesses who testified in his nresence, it is entitled to r.iuch -weight. See the case of La.Building Co. Ko. 7869 decided by this Court lately. Besides, the testimony of Jos. p. Kartiriaz, and of his wife, and of his son, is all interested, and may be considered as one. 34 A1., 332. Vle are accordingly bound to decide that the defendant never took nhy-sical possession of the lots. 139 la., 358.

The prescription of three years cannot avail as this is not an attack upon a tabc title under Art.233 of the Constitution. The contention of plaintiff Í3 that in 1S05 the State sold to it the two lots it claims, and therefore, could not sell then to the defendant in 1906.

As we have seen the defendant bought lot 27 in 1906 for the taxes of 1882. Did the nlaintiff buy the same lot in 1905 for the sarce taxes of 1882?

By an act dated August 4th, 1905, Reg. C.O. January 25th, 1906 in Bk.2Q4, $ 378, the State Auditor sold to the Xeter Realty Co.

" A lot in square 1031, bounded by St. Bernard, Mew 0rlean#> Celestine, and Genius Streets, measuring 98 feet front on St. Bernard Street By one hundred and thirty-six feet in depth" for taxes of 1882 assessed against Mrs. C. Auguste".

This description evidently embraces the frontage of both lots on St .Bernard Avenue, 32 feet f»r lot 26 and 63 feet for lot ^’making 95 feet, and overlapping lot 27 claimed by the defendant. But because it does, has plaintiff acquired a title to it? It shows clearly a dual assessment? the comer lot which measured 26 feet, 98 x 136 in the name of Mrs. C. Auguste, and the ad.ioing lot 63 x 136 in the name of Mrs.A. F.Cheval.

The chain of title of those two lots is as follows:

By act of P. E. Laresche dated February 17th, 1857, Mrs. Fouche sold to Francois Escoffier the two lots 26 and 27 by the same description as that given in the beginning of this opinion, with the exception that instead of Allen Street, the Street is said to be yet;.' unnamed.

Escoffier died; his Succession was opened under No. 28,845 of the late Second District Court.

By act of Abel Dreyfous. of June 2nd, 1862, Hermogene Cheval acknowledged having been put in possession of the undivided half of the .same two lots bequeathed to him and Isis Ferrand by Escoffier.

By act of Abel Dreyfous dated November 9th, 1869, Miss Isis Ferrand acknowledged having been put in possession of the undivided half of same two lots.

By act of P. Coudrain dated November 13th, 18S9, Kiss Isis Ferrand sold to Mrs. Constance Auguste, wife of Hermogene Francois Cheval, her undivided half of salrae two lots.

So that subsequent to November 13th, 1869, these two lots belonged in the proportion of one undivided half each to Hermogene Francois Cheval and to his wife Constance Auguste.

In the year 1882, the tax assessment of the square was as follows:

By act dated August 4th, 1905, registered in the Conveyance Office on January 25th, 1906, the State Auditor sold to the Xeter Realty: A lot of ground in the above square meaa-uring 98 feet front on St. Bernard by 136 feet deep,assessed in the name of Mrs. C. Auguste.

It is evident that this sale embraces in its description, as far as its frontage is concerned, both lots 26 and 27, and, in its depth, the lot 27, to which alone defendant lays claim.

The assessment and sale were not of the undivided half, of the two lots but of the whole of the lots, and.therefore. conferred a title by the State to the Xeter Realty Co.of the entirety of the two lots. Having done so, the State could riot subsequently sell the same two lots or any part thereof to another person for the taxes of the same year. 30 A., 432: 51 A., 251; 119 La., 245.

The registry of the act to the Xeter Company took precedence over the sale to the defendant ih 1906. 142 La., 611.

The assessment of the two lots in the name of Mrs. C. Auguste was sufficient to convey title. 28 A., 677.

But if there was any irregularity in the assessment of the two lots in the name of Mrs. 0.Auguste, omitting her’married name, and also the name of her husband, Hermogene Franr cois Cheval, her eo-proorietor, this was cured by the prescription of three years under Article 233 of the Constitution, as we have seen that no one was in possession of those lots from 1905 to the time of filing this suit. 107 La. , 77; 109 La., 77, 642; 115 La. , 349, 1070; 117 La,, 353, 354.; 119 La., 1056; 138 La., 508, 525; 141 La., 247; 114 La., 282; 145 La., 350.

It ia well settled, that the prescription of three years runs in favor of the State holding muter a tax title, and inures to the benefit of a purchaser from the State. 43 A., 873; 138 La., 508 (524).

Only the owner who has paid the tax under one assessment can take advantage of a dual assessment. 115 La., 351.

The defendant sets up title by virtue of a sale made to him by the Auditor on March 12th, 1906 of certain lots measuring front jjn St^3gjrpard Street by 136 feet deep assessed^rn the.páme of Mrs. K.f. Cheval. Admitting the validity of this assessment it is evident that it was intended to embrace lot 27 which formed a part of the portion of ground assessed as measuring 98 x 115 - 136 previously sold to the Xeter Co., plaintiff herein. The District Judge was of that opinion and so are vie, and,therefore, it was not in the^nower of the Auditor to sell the lot 27 to the defendant after had sold it to the plaintiff.

Judgment affirmed.

December 6th, 1920.


author: Plnkelsnlel. J.

text:
    Mrs. Widow John Patannie- -vs- N. O. Railway & Light Co. and National Surety Co.
    No. 7867.
    Court of Appeal. Parish of Orleans.
    rinkalsnlol. J.
   Plnkelsnlel. J.

Plaintiff olalms damages in tie sum of two thous-aad dollars for personal Injuries sustained lay her, on Maroh 12 th. 1919, kascd upon tke negligent operation of a oar belonging to defendant oompany, operating on tke Broad street line.

_ TÍ)e okarge of negligence being tkst the oar wae suddenly started while plaintiff was alighting therefrom at the Corner of Eroad and r'Abadle Sts., causing her to fall and thereby sustaining severe injuries to her body.

To this petition, both defendants, tbs Mew Orleans Railway and Eight Company and the National Bursty Company, adopt tke same answer, claiming that plain tiff, whilst on the oar, and kefore it kad ooms to a nttsn stop at the proper crossing, following a passenger, stepped from the slowing moving oar when it was about five feet from its regular stopping piaos; the oar did not jolt nor did the Conduotor signal the oar to be started whilst plaintiff was getting out.

On the ons hand, it is contended, that belelving that the bell had been rung for the oar to stop, following a passenger who had gotten off the moving oar, she, plaintiff, with hsr foot on the steps, on the eve of alighting, hearing the hell ring, tke oar started jolting ksr violently, oauelng Injuries to ksr entire system, from whiok ske suffered for several weshe and up to tke time of the trial was still not a well woman; that she was advanced in age, 57 years of age, and in every respsot was without* fault, and that the oompany alone, and it's surety, wae wholly at fault, absolutely negligent, kenos liable for the sufferings for whioh aha prays she be awarded the sum of Two thousand dollars.

To this dafendante answer denying all tho allegations contained In the petition, assorting that if plaintiff was injured it was through har own fault entirely and not through* any negligence or fault of defendants.

In all character of eases of this olaae the evidence is conflicting, hut in this case wa are confronted with hut one witness the plaintiff herself, Shs asserts the foot of her injury, and as stated hy her amongst other allegations in her petition the fact that she in nowise oontrlbuto^to the oauae of her injury, hut on tho oontrary, beleiving the car had come to a stop, she was on the ere of alighting on tho bottom atop with har foot firmly fixed and her hands on the hanlo of the step of the oar when suddenly the car swerved and jolted which caused her to loose her balance, falling on the pavement, and hurt particularly her bach, spine and other portions of har body, and oausad her to be laid up for weeks; whilst testifying to that, comparatively looking well, she could do no work of any kind or character which she formally did about har houee or otherwise.

Except for the fast that har daughter who happened to bo riding in tho same car, but who had gotten out a block ahoad of her mother, /, therefore did not see the accident, but heard of it afterwarde, visited her mother, found her in bed and knew that she had been severely injured, from which Injuries she was still suffering whilst this case was being tried. The husband of the daughter also testified subetan-É&EíSyaSbaítoai&sJaryíxbmtxknawxHntfiiRjpt&fcsutxíiiahxaani-tlally to tho Injury, but knew nothing at all about th®. accident one way or the other.

The Doctor who attended plaintiff was not called ae a witness. On tho other hand defendant company had several witnesses. Of oourse, most of them were employees of defendant, particularly the c*&c¿uc%jí-, and they testified, in every reepeot, contrary to plaintiff, that is what she swore to, and on the other hand, oontradloted her in every materail statement gieon hy her. The ni-vtnrmnn --ultlml" swears taat he only rang the hell for the one stop, and that a * passenger alighted whilst the car was in very slow motion as is frequently done hy male passengers and sometimes hy female passengers, even children as we know, and he saw plaintiff, whilst the car was in motion imaeadlately behind a passsnge* who Jumped off and tne aooident or incident, whichever it might he termed, Happened in the way *a describes. In this r.e is horn out hy a witness not* in the defendants employ, whose statement of faot not. being present in Court was aoospted by both parties, and he firmly establishes just what the swore to.

Wallst it is true the authorities presented By plaintiff's Counsel are absolutely relevant and in point in so far as they go, hut unfortunately for plaintiff, the facts do not hear tnem out in our opinio*. On tae contrary we are decidedly and firmly of the opinio* that plaintiff has failed absolutely to make out a case as against the defendants, and we agree with a is Konorx the Judge a quo wao found for defendants. ^_

For the re-,sons assigned, it is ordered, adjudged and deoxeed, that tae Judgment of the lower Court be, and the 3ame is hereby affirmed with costs of both Courts to bo paid by plaintiff.

-Judgment Affirmed-


author: Dlnkelaplel. J.

text:
    No. 7869.
    Court of Appeal-Parish of Orleans.
    Charles Walker--vs--Young Mens St. Michael Benevolent Mutual Aid Association.
    Dlnkelsnlel. J.
   Dlnkelaplel. J.

Tita plaintiff, in bis capacity as tutor of his minor grand chi1dr*n, instituted suit in the Civil Eistriot Court for the Pariah of Orleans against the defendant corporation, alleging that they were indebted to the minora in the full sum of $350.00., with 5$ interest per annum from July 10th. 1914 until paid for this, to-wit}

That their father, Leon Dejan, vas a member in good standing of defendant corporation during his life and oontinueing as suoh up to the time of his death; that he conformed to all the rules and by-laws of said assoolation; paid all of the dues and assessments levied against him and therefore was entitled to all of the benefits paid by said association to the heirs or benefiolaries of it's deceased, members after their da death.

That Dejan died in this City on 14th. July, 1914, while a member of defendant assoolation in good standing leaving Leona, Hasel and ffilfred Dejan, his minor ohildren, as his sole and only heirs at law.

That ho is informed and beleives, that among the benefits paid by the said assoolation to the heirs of it's deceased members is the sum of $60.00., whioh it allows and pays for the funeral of euoh member, and in the event that the funeral is not paid for by the assoolation, it, under it's by-laws paye over the amount thereof to the heira of the deceased member.

That the aforesaid association did not pay for the funeral of the deceased. Dejan, and therefore the aforesaid minors are entitled to recover $60.00., the amount of said funeral.

Plaintiff further alleges, that in addition to the funeral benefit, said aasooiatlon allows to the heirs or benefioiarlea designated by it's deceased mender, the d sum of fifty oonta for eaoh member of said aasooiatlon in good standing at the time of his death, and that plaintiff is informed and beleivss that at tkima time of said Dejan1s death there were 385 members in good standing, and that an assessment of fifty cents was levied against eaoh of said members and oolleoted by said aasooiatlon, and whioh plaintiff id entitled to recover.

Plaintiff further alleges, that said Dejan designated no benefioiarywith said association to whom the death benefit should be paid, so far as plaintiff knows, and that in the event it should oocur that ons has been designated, then plaintiff shows that the said designation of benafiolary is null, void and of no legal effect, beoause suoh designation has been made in violation of the public policy of the State, and secondly, because the person so designated was the oonoubine of the deoeaaed to the knowledge of defendant's officers and members, and is incapable as auoh to reoeive any suoh benefit, because plaintiff is entitled to recover same for the benefit of the minors. Plaintiff prays for judgment accordingly.

An exception of no oause of aotion was filed, referr ed to the merits and subsequently an answer whioh alleges; admitting all the allegations of fact in the petition oontained except the allegation that the minors, Leona. Hazel and Wilfred Dejan, are the children ami sole and only heirs of Leon Dejan, whioh allegation is denied by defendant for want of suffiolent information and baleif.

Anauorin^, ^..ra^r-vn 4 of tno petition, du*oruiu-üt denies all the allegations therein contained and avers, that funeral benefits of deceased D.embers are boverned by Article 16, Section 33 , of iVs by-laws, whioh reads

"The sum of fifty-five dollars v/ith five dollars additional for the wake, viill be allotted by the secretary for funeral expenses. Tfhenever the family of a deoeaBcd member shall have supervision of the funeral, the president of the releif committee will imraeadiately after the death of said member inform then that the allowance for funeral expenses will be paid at it's earliest convenience".

Defendant alleges, that they have been informed and beleive, that tne funeral of the deceased v/aa not held under the supervision of the tutor of auia minors, nor under the supervision of the minors, but on the contrary \u.s neld uad^r the supervision uX »a-.ry Benjamin at her own home; that the said tutor and said minors have incurred no expense whatever on account of said funeral; that if defendant is indebted to anyone in the amount of said funeral benefit and wake, it is to Uary Benjamin, who has nade a cldin on defendant for the pay? ent of sane as tlu? beneficiary designated by the deceased, as well as by virtue of the fact t:-at the funeral was held under her supervision.

Defendant, further sufcotnntailly answering, quoting Section '¿4 of Article 16, * that it .¡mat be paid to the beneficiary of the deceased, and if a member fails to designate any person the association will not be responsible for the payment of said contribution". And again, defendant claims that said minors wore never designated bj the deceased with the association as the persone to whom his death contribution should be paid, and that under Article 16- 3eotion 34 of defendants by-laws, the minors have no rights whatever to any doath contribution on the death of the deoeased, but aver that the deceased, Dejan, designated Mary Benjamin, witn defendant association, as the person to whoir. t'ne death benefit of the deceased should be paid.

Aa to the allegation in said paragraph of the petition, that Mary Benjamin was the concubine of the deoeased, defendant denies same for want of sufficient information upon which to form a beleif. Hence prays for judgment in it's favor.

Without attempting to quote lltteraliy the testimony of the various witnesses in this oase for it will accomplish no use or purpose, it is sufficient to say that it ha3 been proven to our satisfaction beyond poslbility of a doubt, that the deceased Dejan was the father of the minors and that plaintiff was their tutor; that the wife of Dejan died prior to his own death; that for years ho lived with Mary Benjamin whom he introduced as hia wife never having married her and she wae, according to the record, his oonoubine, and the evidence satisfies us of this beyond a reasonable doubt.

The attempt of the association to screen Mary Benjamin, .the oonoubine, is beyond it's power. The faot remains that she was the mistress of the deoeased for years, had llvad with him in open adultry and had been Introduced to friends and acquaintances as his wife. Even the children of the deoeased 'were at times admitted to the home of the deoeased whloh was occupied by him and his oonoubine; that they oooupied the same room and the same bed and lived together pretending to be what they were not.

Thia question has bean frequently decided by our Supreme Court and by this Court. The law is plain and there oan be no questioning of it.

In the oaae of Urs. Odile Middleton vs. Metropolitan Life Inauranoe Co., to be found in the 7 court of Appeal Reports at page 133, the syllabus readi-

" A sian may not insure his life in favor of his oonoubine. If he do so it will be regarded as a donation and reduced to one tenth the amount of his estate. The balance remaining will be distributed as part of his succession.
" A1J Courts have authority to safeguard the Interest of minors when the same áre in jeopardy and * the minors are unrepresented.» Succession of Johnson, 115 La. 30. Life Insuranoo Co. vs. Hail, 114 La. 653.

In 14 Court of Appeal, 683. Urs. Jena Thomas Vs. Young Hens Magnolia Benevolent Association, the Syllabus reads:-

»’Jher.' the by-laws of a Mutual Benefit Soolety provide a death benefit for the wife of the deoeased menber, ehe aoquires a right thereto by k virtue of the by-lawsj and where a member registers his oonou-bine as his wife, it is froud upon the association which cannot benefit the oonoubine or prejudice the lawful wife.”

And the Supreme Court of our State in the case of Hew York Life Ineuranoe Co., vs. Neil et. al,. an/ * Could the assured divest himself of iHo amount, as he did, to invest it for the benefit of the payee named in the polioy, is the question for our determination.

"Ho evidence proves that there was any oontraotual obligation between those parties, nor does it appsá* by testimony that she nursed or took oare of the insured, or t,:at he was indebted to her. V.'e do not oonalder that indebtedness by the assured to the aesor-tod beneficiary.is in this case, ao it ie not 3tatea in the pleading that aha had any claim against him, nor made to appear by testimony.

"On the face of the papers, the insurance ?;as gratuitous, are not ■-arr'-'nted in concluding that the insurance had any tiling about it in the nature of an onorous donation. It was a donation pure and simple, made under the form of insurance.

"Those who have lived together in open etaisisidii oonoubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one tenth part of the whole value of their estate."

"Thoso who afterwards marry are esoepted from t-.is rule." C. C. Art. 1481.

At page G5S the Court goce on to say:

" ~e are then to view the contract as covering a gift. The article of the Cods oitad supra prohibits such gifts for the 'sake of public order or good morals’ Civ. Code, Art. 11. And whatever is done in oontruvention of anoh a prohibitory law is void."

'In the oase of Eselia Richardson Tidow of Le Bray vs. Bistriot Grand Lodge No. 31¿í, Grand United Order of Odd Fellows, this Court hold: "The measure of power vested in the Board of Directors of defendant company is determined by Its charter and by-laws, and the Board's uotion in oxoess tnoreof is not binding upon the corporation." 8 La. 361. 3 Rob. 307. 3 Ann. 314. 8 Ann. 380. 83 Ann. 1833. 39 Cyc. 108, in relation to mutual benefit insurance; "Uhorc the classes of persons to whom benefits may be paid prescribed by statute or by the society's charter of incorporation, neither the society, nor a member, nor the two combined, can divert the funds from the class ea prescribed; the eooiety had not power to issue a certificate payable to a person not belonging to one of those clashes, and the designation of a person thus inellgable ae a beneficiary is nugatory.

■Independently of the artloles of the constitution of the order it has been deolded that where a beneflolary is outside of the olasses ellgablo as beneficiaries, the members who are within suoh olasses are entitled to the insurance.* Citing a great many authorities.

We are therefore of the opinion, that both in law and morals, the tutor, the plaintiff in this Üfabu</c/u£¿i***-case in behalf of his minors^ is entitled to the full amount of his claim aa prayed for, and that the defendant association is compelled to pay him in full the sum Of $350.00. with 5$ interest from taya 10th. July 1914 until paid and all costs of both Courts.

Judgment of the lower Court is reversed and judgment rendered aooordlngly.

-Judgment Reversed-