text:
    Lewis BUSBY, d/b/a Natchez Finance Company, Plaintiff-Appellee, v. Charlie WALKER, Defendant-Appellant.
    No. 8397.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.

      Nathan M. Calhoun, Vidalia, for appellant.
    Lloyd F. Love, Ferriday, for appellee.
   AYRES, Judge.

This is an action on a promissory note. From a judgment in plaintiff’s favor for $258.45, with 8 percent per annum interest thereon from December 4, 1953, together with 25 percent of said amounts as attorney’s fees, and for all costs, defendant prosecutes this appeal.

The defendant purchased from H & J Used Car Company on October 4, 1952, a used automobile. For the credit portion of the purchase price he executed his promissory note payable in 18 consecutive monthly installments of $51.69, the first payment being due on November 4, 1952. This note was negotiated to plaintiff. On alleging there was a principal balance due of $258.-45, plaintiff instituted this action February 5, 1954, to recover judgment therefor, plus interest and attorney’s fees.

In answer to plaintiff’s demands, defendant alleged that prior to June 6, 1953, he paid $514.79 on said note to the H & J Used Car Company, which he allegedly believed to be the duly authorized agent of plaintiff for the collection of said note; that plaintiff had full knowledge of the fact that respondent was paying said installments to the said H & J Used Car Company, notwithstanding which knowledge plaintiff made no protest as to the manner of said payments but tacitly consented and approved the same without in any way indicating a desire that payments be made direct to plaintiff; and that upon plaintiff notifying defendant on June 6, 1953, that future payments were to be made to plaintiff, defendant paid plaintiff installments aggregating $277.02 on or prior to November 3, 1953, leaving a balance due of $138-51, which had been erroneously calculated to be $155.07. This amount defendant offered and tendered to plaintiff in full settlement on December 1, 1953. With his answer defendant tendered $138.51 as the balance due on the note.

The defense is one of payment of the note sued upon. Defendant contends that the H & J Used Car Company was the duly authorized agent of plaintiff for the collection of said note, and, in the alternative, averred that plaintiff ratified and profited by the payments made by defendant to the H & J Used Car Company and is, therefore, estopped to deny its agency. The controversy arises as to payments of February 4 and March 7, 1953, aggregating $119.94, paid by defendant to the said H & J Used Car Company, which amount was not remitted to plaintiff. All other sums so collected were in due course and properly remitted to plaintiff.

The question presented is whether or not the payment of these two installments was to a person authorized to receive it for the creditor, or, if not, whether the creditor had ratified it or profited by it so as to discharge the defendant under the provisions of LSA-C.C. art. 2140 and LSA-R.S. 7:119. The latter statute provides:

“A negotiable instrument is discharged :
“(1) By payment in due course by or on behalf of the principal debtor;
******
“(4) By any other act which will discharge a simple contract for the payment of money”.
The Codal provision states:
“The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a court, or by law, to receive it for him.
“Payment made to a person, not having power to receive it for the creditor, is valid,’if the creditor has ratified it, or has profited by it.”

We are led, therefore, to a discussion of the question of agency to determine if such a relationship existed between plaintiff and the H & J Used Car Company. The H & J Used Car Company in connection with its business acquired installment notes representing the credit portion of car sales made by it. These notes were negotiated to plaintiff. Mr. J. T. Jacobs, Jr., one of the former partners in the H & J Used Car Company, testified that, as a working arrangement and as a matter of practice, his Company collected the installments payable on at least half of the obligations negotiated by it to plaintiff; however, plaintiff was unwilling to admit that the Car Company collected installments on all the notes negotiated to it but did admit that such was done in a substantial number of cases and on a substantial percentage of the notes acquired by it from said concern. In the instant case nine of the installments of defendant’s note, covering a period of nine months, were handled in that manner. Collections from seven of these installments were duly remitted to plaintiff. The record leaves no doubt but that plaintiff had full knowledge of the manner in which these installments were collected, which was no different from the manner in which installments on various other notes were collected by H & J Used Car Company. The manner of defendant’s payment and the general practice of the H & J Used Car Company collecting notes negotiated to plaintiff, as well as the authority of said concern to make collection of the notes, were never questioned. No objection was made or conveyed to the makers of any of the notes that the H & J Used Car Company was not authorized to make the collections for plaintiff. While plaintiff was unable to testify that any notice of his ownership of defendant’s note or any instruction as to the payment of the installments was given defendant, defendant was positive that no such notice was received by him. It was only after the H & J Used Car Company ceased operation in May, 1953, that plaintiff instructed defendant under date of June 6, 1953, to make the monthly payments on his note to plaintiff’s office in Natchez, Mississippi. After such notice defendant complied with the instructions given.

The evidence further discloses that after one of the partners of the H & J Used Car Company absconded with the partnership funds, the other partner, J. T. Jacobs, Jr., on his voluntary petition, was adjudged a bankrupt. On his application for a discharge plaintiff made opposition on several grounds, among which was that defendant as a partner in said concern received funds, such as the collections on these notes for plaintiff, in a fiduciary relationship and failed to remit same.

The facts and circumstances as established in the record show a relationship of principal and agent between plaintiff and the H & J Used Car Company. As between principal and agent, an agency is created and authority is actually conferred very much in the manner as a contract is made to the extent that the creation results from the agreement between them that such a relation shall exist. The consent to the establishment of such agency may be either expressed or implied. An agency created expressly may result from an oral or written agreement of the parties. This would be termed an actual agency. However, an implied agency is also an actual agency. It is a fact which is to be proved by deductions or conclusions from other facts and circumstances. Such an agency is often established from the words and conduct of the parties and the circumstances of the particular case. It may be implied from prior habits or from a course of dealings of a similar nature between the parties where the agent has repeatedly been permitted to perform similar acts in the past. With respect to third persons, an agency may arise from acts and appearances which lead others to believe that such a relationship has been created, that is, by estoppel, and with respect to such third parties who deal with the agent, the agency may be apparent only and exist because of the estoppel of the principal or agent to deny the existence of such relationship, if the third party has relied on such appearance so that he would be prejudiced if the fact were shown to be otherwise. 2 Am. Jur. 23-26, Agency, Sec. 20 et seq.; 2 C.J.S., Agency, subd. III, Creation and Existence of Relation, § 16 et seq., p. 1041; Cason v. Cecil, (Aymond, Intervenor and Third Opponent) 194 La. 41, 193 So. 362; Hughes Lumber Co. v. Madisonville Saw & Planing Mill, 4 La.App. 662.

An agency may exist in fact and in law regardless of the effect contemplated by the parties. Whether an agency has been established is a question of law to be determined by the relations of the parties as they may in fact exist under their agreements or acts. The creation of this relationship does not depend upon the principal’s conscious intention to confer upon another authority as an agent. If a principal intentionally does certain acts of which the legal effect is the creation of authority of an agent in another that authority will exist regardless of the motives of the parties. Hughes Lumber Co. v. Madisonville Saw & Planing Mill, supra; Downs v. Delco-Appliance Corporation, La.App., 138 So. 525.

From a review of the facts of this case and particularly the conduct of the parties, the conclusion is inescapable that the H & J Used Car Company was constituted an agent of plaintiff for the purpose of collecting defendant’s note. It was held by the Orleans Court of Appeal in Rea v. Caire, 14 Orleans App. 331, that when the transferee of a note keeps himself in the background so as to remain unknown to the maker of the note and receives partial payments made to the former owner, the fact of the matter is that he wishes the maker to continue in the belief that such former owner is still the holder of the note; and this constitutes such former owner as agent for the purpose of collecting upon the note until he gives the maker notice to the contrary.

The plaintiff as the transferee of the note cannot stand by and see the maker make partial payments to a former owner who remits to the plaintiff and receives the benefits from and profits by such payments and afterwards repudiate such payments as have been made to the transferor and not remitted to him. Moreover, under the facts and circumstances of this case, an estoppel precludes plaintiff from questioning the agency of.-the H & J Used Car Company and its authority to receive and collect the installments in contest on defendant’s note.

It was held by this court in Arkansas Fuel Oil Co. v. Shreveport Packing Co., La.App., 15 So.2d 546, 547, where all transactions relative to defendant’s purchase of gasoline from a dealer were had with the dealer only, although plaintiff supplied the dealer with gasoline, took assignments of dealer’s account against defendant after each delivery and sent monthly statements to defendant, and payments for all deliveries made by defendant were made to the dealer without objection from plaintiff, plaintiff was estopped to contend that payment to the dealer was not payment for the gasoline. In^other words, it was held that even though the account was assigned by the dealer to'the oil company and the customer received statements and notices apprising him of such assignment, his payments to the dealer were binding upon the oil company as the assignee of said accounts. In commenting upon plaintiff’s acts, this court stated:

“The silence of plaintiff in regard to defendant paying Holly Bros, monthly for many months caused defendant to pursue the course it did, and since it has now paid Holly Bros, for all the gasoline it purchased, plaintiff is estop-ped from claiming defendant paid the wrong persons.”

Inasmuch as prior to the institution of this suit and prior to the date from which the plaintiff claims interest, the defendant offered to pay plaintiff an amount in excess of the actual amount due upon said note and has again, in filing his answer, admitted and tendered to plaintiff the correct amount due, it follows that plaintiff should recover judgment for said principal amount but that his demands for interest, attorney’s fees and costs should be rejected. The judgment appealed will be accordingly amended.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed be amended by reducing the amount to $138.51, without interest and attorney’s fees. The costs in both courts are assessed to plaintiff-appellee. ‘

Amended and affirmed.


source: Caselaw Access Project

author: DICKINSON, Associate Justice.

license: Public Domain

text:
    C. P. DICKSON, Appellant, v. GRAHAM-JONES PAPER COMPANY, a Florida Corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.

    Rehearing Denied Jan. 17, 1956.
    Robert G. McNulty of McNulty & Mc-Nulty, St. Petersburg, for appellant.
    R. W. Shackleford of Shackleford, Far-rior, Shannon & Stallings, Tampa, for ap-pellee.
   DICKINSON, Associate Justice.

' Plaintiff below, appellant here, sued defendant below, appellee here, for negligence, alleging that the manager of defendant’s branch in Tampa, Florida, had owned a “fighting cock” which had vicious tendencies and which he, the manager, had permitted to be kept in defendant’s branch, which fighting cock had attacked plaintiff, causing him injury, while he, plaintiff, was a business invitee of defendant corporation. No knowledge of such keeping was alleged to have been known to defendant corporation, nor was there any allegation that said keeping was within the scope of the manager’s authority or in the furtherance of defendant’s business. Thus the question ’involved is whether the defendant corporation is liable for the act of its manager in keeping such an animal in its Tampa branch.

A motion to dismiss a second amended complaint was sustained and the cause dismissed below.

The theory of plaintiff’s case is that there was a duty on the part of the defendant to exercise reasonable and prudent care in guarding against injuries to business invitees.

There is á wealth of authority on the question of keeping vicious dogs and other ferocious animals, the owner being held liable therefor, but a corporation is only responsible for the acts of its agents or employees while acting within the scope of their authority or while in the furtherance of its business. It is inconceivable to this Court how keeping a “fighting cock” is in the furtherance of the corporation business of a paper concern, nor is there any such allegation in the complaint. Certainly the corporation did not own the cock, nor was it engaged in such a business as promoting “fighting cocks”. Knowledge of such keeping and knowledge of the viciousness of such animal are both necessary elements to be alleged in order to hold a corporation for the acts of its agents, servants, or employees.

In Fletcher Cyclopedia of Corporations, Permanent Edition, Vol. 3, Art. 793, Pages 30-32, we find: “The general rule is that knowledge acquired or possessed by an officer or agent of a corporation otherwise than in the course of his employment, or in relation to a matter which is not within the scope of his authority, is not notice to the corporation. So according to the weight of authority the knowledge of an officer of a corporation which comes to him through his private transactions outside of the range of his official» duties is not imputable to the corporation itself so as to charge the corporation with constructive notice of the information received by the officer, * * *. The rule that notice to an officer or agent is notice to the corporation applies only where the matter with reference to which notice is given or acquired is within the scope of his authority and has some direct connection with his agency and the notice or knowledge comes to or is possessed by him in his official or representative capacity and where the officer or agent in the line of his duty ought and could be reasonably expected to act or communicate the knowledge to the corporation and this must be alleged in the pleadings and proven at the trial.”

Knowledge of the owner of the viciousness of an animal is not imputable to anyone else, especially his employer, unless the employer directed the employee to d-o the specific act of keeping the animal, or unless it was reasonably foreseeable as a result of his authority as the agent. To hold otherwise would be to make every corporation an insurer of the actions of its employees. This has nothing to do with the liability of the owner of the cock for damages since the matter is not at issue here.

Accordingly, the judgment of the lower court is affirmed.

DREW, C. J., and TERRELL and THORNAL, JTJT., concur.


author: PER CURIAM.

text:
    Jacob MINDLIN and Fannie Mindlin, his wife, and Alexander Geronemus, and Helen Geronemus, his wife, Appellants, v. William E. SHARPE and Bertha B. Sharpe, his wife, Appellees.
    Supreme Court of Florida. Special Division A.
    Dec. 7, 1955.
    Rehearing Denied Jan. 20, 1956.
    Anderson & Nadeau and Leo M. Alpert, Miami, for appellants.
    Charles H. Snowden, Miami, for appel-lees.
   PER CURIAM.

The decree appealed from should be affirmed on authority of Sumter County State Bank v. Hays, 68 Fla. 473, 67 So. 109, as limited by Robertson v. Northern Motor Securities Co., 105 Fla. 644, 142 So. 226; B. L. E. Realty Corporation v. Shepard, 107 Fla. 380, 144 So. 880. See also First & Lumbermen’s Nat. Bank of Chippewa Falls v. Buchholz, 220 Minn. 97, 18 N.W.2d 771; Cooke v. Real Estate Trust Co., 180 Md. 133, 22 A.2d 554; Williams v. Kessler, Mo.App., 295 S.W. 482; and Beutel’s Brauman, N.I.L., 6th ed., p. 581 et seq.; Rich v. Hunter, 147 Fla. 724, 3 So.2d 393.

It is so ordered.

DREW, C. J., and TERRELL, HOB-SON and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    Dorothy B. BROWN, now Dorothy B. Bock, Appellant, v. Ernest C. BROWN, Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.
    Rehearing Denied Jan. 19, 1956.
    S. L. Holland, Jr., Bartow, for appellant.
    M. H. Edwards, Bartow, for appellee.
   THORNAL, Justice.

Appellant, who was defendant below, seeks reversal of an order of the Chancellor modifying the provisions* of a divorce decree with reference to a maintenance allowance for the minor son of the parties.

By decree of divorce entered August 4, 1947, appellee Brown was granted a divorce from appellant Bock with a provision in the decree directing Brown to pay to Mrs. Bock, then Mrs. Brown, the sum of $400 per month as permanent alimony and for the maintenance of the minor son of the parties. In July, 1949, the former Mrs. Brown remarried and became Mrs. Bock. By agreement between the parties, alimony and child maintenance payments were reduced to $300 per month. There were various subsequent reductions, either by agreement or by appellee Brown on his own initiative, until October, 1953, when he filed a petition to modify the original decree alleging the remarriage of his former wife as the sole ground for modification.

After hearing the testimony, the Chancellor decided that the decree should be modified and he eliminated the alimony-provisions and required that Brown pay to his former wife the sum of $100 per month for the maintenance of their 13-year old son. Mrs. Bock appeals contending that she needs $300 per month to take care of the child, and that the amount allowed by the Chancellor is not sufficient in view of the fact that the child’s father has an approximate income before taxes estimated to be $17,000 to $20,000 per year. The record in no place contains an itemization of the needs of the child.

Appellant seeks reversal primarily, if not entirely, on the proposition that the father can afford to pay more than the Court allowed for the maintenance of the boy and that he should, therefore, be required to do so. We do not feel that this is the sole element to be considered in fixing the amount that a father should pay to a divorced wife for the support of a minor child in the custody of the mother. While the father’s financial ability is undoubtedly a substantial factor, there are other elements, such as, the actual needs of the child, the advisability of spending more than a certain amount in the maintenance of the Child, the general living conditions available to the child and his station in life.

When all of the related factors are considered on the basis of the record now before us, we cannot conclude that the Chancellor abused the discretion accorded to him in entering the order from which the appeal was taken. If it should develop that the amount allowed by the Chancellor when properly handled by the mother is inadequate to support the minor in a fashion to which he has been accustomed in the light of his father’s ability to make provision for him, then a showing can be made accordingly and the Chancellor, after hearing the facts to be presented, may modify his decree in a fashion that will recognize the welfare and best interest of the minor.

The decree appealed from is affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


text:
    Harry W. LEHMAN, as the sole general partner of Lehman Lumber Company, Limited, a limited partnership under the laws of the State of Florida, Appellant, v. Stewart SNYDER and Joan Mae Snyder, his wife, Appellees.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.
    Rehearing Denied Jan. 19, 1956.

      Miller & Podell, Miami Beach, for appellant.
    Padgett & Teasley, Miami, for appellees.
   THORNAL, Justice.

Appellant Lehman seeks reversal of a final decree against him in a proceeding which he brought to enforce a material-man’s lien.

Appellees Snyders, as owners, entered into a contract with one Hines, as contractor, whereby the latter agreed to build a house for the former. Periodical payments were to be made to the contractor through the agency of Coral Gables Federal Savings and Loan Association, herein called “the bank”, where the Snyders had arranged a construction loan. Hines bought the lumber for the house from Lehman who, within the time allowed by F.S. Section 84.04(1), F.S.A., served upon the owners a so-called “cautionary notice” of an intention to claim a lien for the materials furnished by him. The owners undertook to require from the contractor a bond authorized by F.S. Section 84.05(11) (a), F.S.A., but appellant contends that the bond was insufficient to meet the requirements of the law and that it was tantamount to no bond at all with the result that the owners were obligated to comply with those provisions of the last cited statute which are applicable to situations where a bond is neither required nor furnished.

We find it unnecessary to pass upon the sufficiency of the bond for the reason that it appears from the record that in actuality the owners have met the requirements of the cited statute where no bond is required and that the failure of the materialman to receive payment for the lumber furnished by him resulted from his own doings.

When the building was completed and the time arrived for final settlement with the contractor, the owner properly required the contractor’s statement under oath as necessitated by F.S. Section 84.04(3), F.S. A. The statement listed certain unpaid materialmen but the list did not include appellant Lehman. However, upon the furnishing of the statement under oath, the contractor likewise delivered to the owners Lehman’s bill for lumber which was marked “paid”, together with a complete release of lien also executed by Lehman. It so happened that the contractor had obtained the receipted bill and the release of lien by delivering to Lehman his check for payment in full which check was subsequently returned to Lehman because of insufficient funds of Hines in the bank on which it was drawn. It therefore appeared to the owners when they made final settlement that the appellant had been paid in full, that he no longer claimed any lien and that the only unpaid lienors were those listed in the contractor’s statement under oath. The bank, at the request of the owners, thereupon paid the contractor the balance due him after apparently liquidating the claims of the lienors listed in the statement under oath. Neither the owners nor their bank had any knowledge of the “bad check” before making final settlement with the contractor.

After this transaction was closed and the contractor’s check was returned for insufficiency, Lehman filed a “claim of lien” against the property involved, claiming nonpayment of its lumber bill and alleging failure of the owner to comply with the requirements of F.S. Section 84.05(11) (a), F.S.A., in that he contends that periodical payments were made by the bank without retaining twenty percent of each payment as required by the statute. The provision relied upon by appellant is as follows:

“ * * * If for any reason the contractor fails to furnish the bond * * * the owner shall withhold twenty percent of each payment when it becomes due under the direct contract.”

This same section, however, continues as follows, to-wit:

“And in no event shall the owner pay more than eighty percent of the contract price if the bond is not furnished until the contract has been fully performed and final payment is due and the contractor has furnished the owner statement under oath required by § 84.-04(3). If the statement recites any outstanding bills for labor, services or materials, or if the owner has knowledge of any, the owner shall pay such bills in full direct to the person or firm to whom they are due, if the balance due on the contract is sufficient, and deduct the amounts so paid from the balance due the contractor. If the balance due on the contract is not sufficient to pay all bills in full, the owner shall pay no money to anyone until such time as the contractor has furnished him with the difference. In the event the contractor fails to furnish the difference the owner shall determine the amount due each laborer, lienor, materialman, or subcontractor and shall disburse to them the amounts due by him on the contract in accordance with the order of liens established in § 84.05. * * *

The exhibits filed by appellant reveal that, out of a total commitment of $8,126.43 to cover the cost of construction, the bank had a balance available in the amount of $1,904.06 when final settlement was made by the owners with the contractor through the bank. While it is true that the bank made three disbursements on the account to the contractor without apparently retaining twenty percent of each, the fact remains that when the job was completed and the time for final payment arrived the owner through its agent, the bank, had actually withheld more than twenty percent of the contract price and would have been in a position to meet the demand of appellant, at least pro tanto but for the receipted bill and release of the lien executed by appellant himself.

Eliminating the claim of the plaintiff this retained amount was adequate to liquidate the balance due the several subcontractors listed in the contractor’s statement under oath. The owners and the bank had a right to rely upon the release of lien executed by Lehman in making the final disbursements. They did so rely in absolute good faith and in doing so, they closed out the account with the contractor^ and apparently paid off the remaining lienholders. So far as the owners and the bank were informed, Lehman had been paid in full and had cancelled the lien with the result that the effect given to the “cautionary notice” by the statute was eliminated. The appel-lees Snyders rely on various equitable maxims to support the decree of the Chancellor. However, they all add up to the conclusion that having executed the release and the receipted bill and having led the owners and the bank into making the final settlement in reliance upon the release, the ma-terialman Lehman cannot now be heard to disclaim the effect of the release and assert a lien for the unpaid amount due for the materials furnished. The Chancellor so ruled and he was correct in so doing.

The decree appealed from is affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


author: HOBSON, Justice.

text:
    Harold Harlan WARNER, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    June 15, 1955.

      Carr & O’Quin, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.
   HOBSON, Justice.

Appellant was indicted for first-degree murder, and pleaded not guilty by reason of temporary insanity. The jury brought in a verdict of guilty of manslaughter, and later made a voluntary recommendation of extreme leniency. Appellant does not deny firing the shots which resulted six days later in his wife’s death, but testified that he could not remember the immediate circumstances surrounding the commission of the act charged.

The court appointed two' disinterested psychiatrists, Doctors Jarrett and Kells, to examine the appellant, and both testified at the trial. The following excerpts from the record in this case will illustrate the problems presented here. Doctor Jarrett testified in part as follows:

“My impression was that this man was, at the time in question on the evening of May 9, 1953, in a state of moderate alcoholism, moderate depression, and some emotional turbulence involving remorse and probably some resentment relative to his wife having left him with whereabouts unknown to him. In my opinion, the act in question was an impulsive outburst without previous formulation. However, in my opinion, he knew it was wrong to commit such an act and knew the nature and consequence of such behavior. The act itself was, in my opinion, obscured by an hysterical amnesia.
******
“Q. Then would I he correct in saying that in this particular case it is entirely possible that this man knew what was going on at the time he did it, but that afterwards thinking about it was so horrible to his mind that he developed this hysterical amnesia? A. From the information I have I would say that is probably what has happened.
“Q. Yes, sir. Now, I believe you stated that in your opinion at the time of this offense which is charged that he had sufficient use of his reason to understand the nature and consequence of the act? A. Yes.
“Q. And that he understood it was wrong for him to do the act? A. Yes.
“Q. He knew the difference between right and wrong at that time? A. Yes.
******
“It is my opinion that during the time this man made the appointment with his wife, went to see her, when he was riding in the car with her, there was no intimation that he had had any formulated opinion or premeditated concept that he was going to shoot her.
******
“My opinion was that he had an hysterical amnesia obscuring that, and by that I mean no conscious inability to recall the facts. In other words, the term itself implies that there is no deliberate effort to conceal information. * * *»

Doctor Kells testified in part as follows:

“Then you come to the question as to whether he knew right from wrong at the time or would know the consequences of his act. In a way that is unimportant, because his judgment was blunted by the emotions and he would not bother about thinking about the effects of his acts or right or wrong. In other words, he did not have a discerning mind or a deliberative mind. There was no deliberation present.
******
“Q. Doctor, did you say that at the time this happening took place that Mr. Warner had sufficient use of his reason to understand the nature and consequences of the act with which he is charged ? A. I don’t think that he did. I mention in my report that if somebody had been there to make him count up to 100, he could have, but he was blunted by this emotion and he did not take himself in hand and say, ‘Stop and see here,’ but he went blindly ahead.
“Q. I believe you state in your report, do you not, that at the time this thing took place that Mr. Warner was in contact with reality, was not insane in the loosely used and popular sense of the word; is that right? A. Yes, sir.
“Q. Now, wouldn’t you say that is similar to knowing the nature and consequences of his acts at that time? A. I think he knew what he was doing, I think he knew the environment, I think he knew who hé was dealing with. I have not heard the testimony and I don’t know if he had a gun or not, but if he did have a gun I would say I believe he knew he had it, but to him the consequences were somewhat immaterial because his vision was so narrowed by this emotional blunting that the rest of it was all immaterial.
“Q. Do you think he understood it was wrong for him to do it? A. I don’t think he gave that a thought. * * * ”

A careful reading of the testimony quoted above will show that while both witnesses concurred in the belief that appellant might have known what was happening at the time of the shooting, they took different views of the appellant’s interpretation of his own part in such events. While Doctor Kells testified in effect that appellant was insensible to right and wrong at the time of the shooting, Doctor Jarrett was of the clear and unequivocal opinion that appellant then knew the difference between right and wrong and understood that it was wrong to do the act. The, jury was charged fully, correctly, and with meticulous care in this case. No denial of a request to charge is depended upon by appellant here. Under authority of Brock v. State, Fla., 69 So.2d 344; Acree v. State, 153 Fla. 561, 15 So.2d 262; Crews v. State, 143 Fla. 263, 196 So. 590; and Davis v. State, 44 Fla. 32, 32 So. 822, the jury, as reasonable men, could have believed the testimony of Doctor Jarrett exclusively, insofar as it was inconsistent with that of Doctor Kells, and could lawfully have brought in the verdict which was rendered.

Appellant relies upon Britts v. State, 158 Fla. 839, 30 So.2d 363; Blocker v. State, 87 Fla. 128, 99 So. 250; Thomson v. State, 78 Fla. 400, 83 So. 291; and Armstrong v. State, 30 Fla. 170, 11 So. 618, 17 L.R.A. 484, in support of his contention that if the evidence is sufficient to raise, in the minds of the jury, a reasonable doubt as to the sanity of the accused, the presumption of sanity is overcome and the accused should be acquitted. This rule is supported by the authorities cited. It was included in the jury charge herein, and we do not question it. But the jury, acting under its instructions, apparently entertained no reasonable doubt.

While the jury’s recommendation of extreme leniency might have some bearing upon the jury’s view of the case, it cannot be translated into an expression of doubt. To apply appellant’s theory to this case, we would have to hold that the expert testimony should as a matter of law have caused the jury to entertain a reasonable doubt. This we cannot do, with due regard to the clear testimony of Doctor Jarrett that appellant knew right from wrong at the critical time, and knew it was wrong to commit the act. A study of the cases appellant cites will demonstrate that in all of them the facts showing insanity were stronger than in the instant case, and the testimony pointed unerringly in one direction.

Affirmed.

DREW, C. J., and THOMAS and THORNAL, JJ., concur.


text:
    Mildred C. FOGLE, Appellant, v. A. D. FOGLE, Sr., Appellee.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    Rehearing Denied Jan. 20, 1956.
    Joseph Pardo, Miami, for appellant.
    Miller, Pearson & Miller, Miami, and Armand J. Brissette, Jr., New York City, for appellee.
   PER CURIAM.

The record and the briefs in this cause have been examined and judgment appealed from is affirmed on authority of Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409; Osgood v. Osgood, 78 Mich. 290, 44 N.W. 325; Craven v. Hartley, 102 Fla. 282, 135 So. 899; Oates v. Prudential Ins. Co. of America, 107 Fla. 224, 144 So. 418, and Boynton v. Williams, 108 Fla. 368, 146 So. 663.

Affirmed.

DREW, C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.


author: PER CURIAM. BARNS, Justice.

text:
    John Cecil REDDITT, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    July 22, 1955.
    On Rehearing Dec. 14, 1955.

      Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for appellant.
    Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed.

On Rehearing Granted

BARNS, Justice.

In the review by appeal we are confronted with the issues of law as raised by the assignment of errors and argued in appellant’s brief. In this case there are 104 assignments of error, and none are quoted in appellant’s brief. Appellant’s first question is stated to be upon the third assignment of error, but a reference to the designated assignment shows that the argument is not addressed to that assignment. We now find the argument to be within the scope of the first assignment which we discover may be found on page 558 of the record.

The remainder of the brief is addressed to other matters which are not shown to be within or without an assignment of error, hut it appears from the points argued that it may be supported in point of fact by the record and may relate to some of the assignments. We believe that it would be more satisfactory if counsel for appellant would withdraw his'brief and file another in conformity with the principles hereinafter stated. Counsel for appellant is allowed 30 days to file a substituted brief and .appellee is allowed 30 days after service of a copy thereof in which to file its brief. The case will proceed without further oral argument.

Assignment by Error

Necessity of. After the entry of •an appeal, the assignments of error are indispensable at all stages, and the life of the appeal is dependent upon the assignment being true in fact as to some specified judicial act; and also dependent upon the specified judicial act being erroneous in point of law, and harmfully so. Furthermore, the assignment of error must be supported in point of fact by the record on appeal.

Function of. An assignment of •error is the ground or point relied on for reversal on appeal. The assignment of error performs the same function in the appellate court as the complaint or declaration in the court of original jurisdiction. Streeter v. State, 89 Fla. 400, 104 So. 858; Red Top Cab & Baggage Co. for Use and Benefit of Fontaine v. Dorner, 159 Fla. 538, 32 So.2d 321; Star Fruit Co. v. Eagle Lake Growers, 160 Fla. 130, 33 So.2d 858. It is an enumeration by the plaintiff in error •of the errors alleged to have been committed by the court below for which a reversal of the judgment or decree is sought. Without a complaint in the trial court there will be no trial, and the action will be dismissed; •and without an assignment of error the apr pellate 'court will not review, and the appeal will be dismissed. If a declaration •contains numerous counts the plaintiff in the trial court will be permitted to recover •only on the counts established as true in point of fact! If there are numerous assignments of errors, the review in the appellate court will extend only to those assignments sufficiently stated, argued and established as true in point of fact. The function of an assignment of error is to point the specific error claimed to have been committed by the court below, in order that the reviewing, court and opposing counsel may see on what point the appellant seeks reversal and to limit argument and review to such point. Streeter v. State, 89 Fla. 400, 104 So. 858.

Form of: An assignment of error need follow no particular form but they should be stated according to the facts and circumstances as they occurred. It is the substance of the assignment that is material and not the form.

Appellant’s Brief and Assignment of Errors

The appellant’s brief should, insofar as practical, be so prepared that all points presented by the assignment of error can be determined by an examination of the briefs without it being necessary to look to the record for the facts and occurrences which gave rise to the points. 3 Am.Jur. 332-333, Appeal and Error, pars. 770, 772.

The new Rule of this Court in Rule 36(9), 30 F.S.A., has re-stated a well established rule of law of appellate review as follows: “Such assignments of error as are not argued in the briefs will be deemed abandoned * * The assignment of errors constitute the basis for reversal and appellant’s brief serves the purpose of pointing out specific errors or points within the scope of some specific assignment of error. Except for fundamental errors, an appellate court'will not reverse except for some well founded assignment of error that has been argued in the brief, and no point made in the brief will be considered unless it is found to be within the scope of an assignment of error.

When the argument of the brief is not addressed to an assigned error, which has been stated or revised and re-stated according to the facts and circumstances of the cases as they occurred as shown by the record, with appropriate reference to the record, it may lead to a memorandum decision of “affirmed,” when otherwise, an explanatory opinion might have been rendered and possibly to the contrary. Our failure to enforce the rule or appellant’s failure to comply with the rule may lead to a failure to present for the Court’s review errors which may lurk in record, but which remain unrevealed * * *.

When we confine our decisions to mere statements contained in the briefs as points which are in nowise correlated to issues of law as raised by an assignment of errors we are likely to pass on moot propositions. City of Coral Gables v. State ex. rel. Hassenteufel, Fla.1948, 38 So.2d 467; Lynn v. City of Ft. Lauderdale, Fla.1955, 81 So.2d 511. Assignments must relate to judicial acts; hence, in the review by appeal we should usually affirm when no assignment of error is stated and argued, or when we fail to find the act assigned and argued to have been prejudicially erroneous. And we should reverse for some specific erroneous judicial act which has been assigned and argued and which we find to have been prejudicial tp the party complaining of it.

Appeals come to this court with a presumption that the proceedings below were free of error. When the errors are not assigned, or if assigned, are not argued, then the parties in interest have not been adequately served by the attorneys or by this Court. Such conditions tend to lead to the needless expenditure of time of the Justices in searching for some judicial act giving rise to the argument presented for reversal, when such time might better have been used in giving consideration to the decision of the merits of the matter sought to have reviewed.

It is essential that appellant address the argument of his brief to an assignment of error or a point contained in an assignment of error, and to do so the assignment should be copied into the brief at the place of the argument addressed to it. No point is complete without an assignment of error. If appellant conceives any assignment might have been stated more specifically or with greater clarity, then he may revise and re-state it in his brief. A point stated as being raised by assignment identified by a certain number is insufficient unless the assignment is quoted in the brief. When an assignment of error is stated or re-stated in the brief, appropriate page references to the subject matter of the assignment should be added.

When an assignment relates to the admission or exclusion of evidence, or the giving or refusing to give specific charges to the jury then the assignment in order to be complete should identify the evidence objected to and admitted, or the proffer of evidence refused; or the charge erroneously given or refused. If the assignment is incomplete then the brief should quote the evidence, or a sufficient portion thereof, or the instruction, together with the objections and the rulings of the court with appropriate page references to the record to all such matters. If the assignment is incomplete, it should be revised and restated in the brief so as to make it complete in substance, but in briefing a mere substantial restatement by counsel of the subject matter of an erroneous admission or exclusion of evidence is not sufficient; the appellate court wants to be advised of the error vel non as it actually occurred.

Points. A point made that is not based on, or shown by the brief to be within the scope of some quoted assignment is futile and will be considered as moot; and an assignment of error not argued will be treated as abandoned. When the assignment of error is sufficient within itself to state the point relied on for reversal, a further statement of it is not required. Of course one assignment may give rise to several points, and the assignment itself may be sufficient to state the point. Repetitious statements of the same assignment of error, or the same points, are not essential and are not favored. To state them once in the brief where argued is sufficient as well as essential.

What are Points? For a discussion of “points” in appellate practice see 4 C.J.S., Appeal and Error, § 1324. But for a concise statement of “points” those stated by the Justices of Supreme Courts in their opinions might be taken as a guide — some of which are listed in the footnote. .

The petition for rehearing is granted accordingly.

DREW, C. J., and TERRELL and ROBERTS, JJ., concur.

      . Point: “The point for determination is whether or not the trial court committed error in dismissing the cause for failure of plaintiff or his counsel to attend the pre-trial conference.” (Terrell, J.) Beasley v. Girten, Fla., 61 So.2d 179, 180.
      Point: “The point for determination is whether or not the City of Miami is authorized to issue its general obligation bonds for payment of only a portion of the cost of a sewage disposal system, the balance of said cost to be paid from the proceeds of Sewer Revenue Bonds (Series of 1953).” (Terrell, J.) State v. City of Miami, Fla., 62 So.2d 405, 406.
      Point: “The sole point for determination is whether or not the tax liens of the United States are prior in right to the mechanic’s lien of the plaintiff.” (Terrell, J.) United States v. Griffin Moore Lumber Co., Fla., 62 So.2d 589.
      Point: “Is an owner of property who has accepted labor, services and material for the improvement of his property to be permitted to defeat or impair the enforcement of the statuwy lien merely because no ‘notice’ of such items has been filed as allowed by section 84. 15 F.S.A.?” (Barns, J.) Maule Industries Inc., v. Trugman, Fla., 59 So.2d 27, 32.
      Point: “Only one question is presented: Has the Assistant State Attorney for the Ninth Judicial Circuit the power and authority to sign an indictment returned by the Grand Jury?” (Mathews, J.) Owens v. State, Fla., 61 So.2d 412, 413.
      Point: “A decision in this case must turn upon the answer to a single question: May the wife of a man injured, but not killed, by the negligent act of a third person maintain an action against the tort-feasor for her damages flowing from the loss of the consortium of the husband?” (Taylor, J.) Ripley v. Ewell, Fla., 61 So.2d 420, 421.
      Point: “* * * (1) Under 30 F.S.A. Common Law Rule 41 is it necessary that a motion for a new trial in a common law action be actually presented personally to, and filed with, • the trial judge, or is the filing of such a motion with the Clerk of the Court sufficient compliance with new Common Law Rule 41? * * * ”
      (Hobson, J.) Mead v. Bentley, Fla., 61 So.2d 428, 429.
      Point: “The issue is whether a United States District Court has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States.” (Clark, J.) Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 252, 253, 97 L.Ed. 252.
      Point: “The questions here are: (1) whether the Interstate Commerce Commission, in prescribing intrastate freight rates for railroads under § 13(4) of the Interstate Commerce Act [49 U.S.C.A. § 13(4)], may give weight to deficits in passenger revenue; and (2) whether the findings of the Commission which are involved in this proceeding are sufficient to sustain the rates it has prescribed. Our answer to each question is in the affirmative.” (Burton, J.) King v. United States, 344 U.S. 254, 73 S.Ct. 259, 260, 97 L.Ed. 301.


author: TERRELL, Justice.

text:
    H. T. PARKER, Appellant, v. A. E. BRYCE, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    Rehearing Denied Jan. 20, 1956.
    Ragland, Kurz, Layton & Maness, Jacksonville, for appellant.
    Coffee & Coffee, Jacksonville, for ap-pellee.
   TERRELL, Justice.

Appellant instituted this suit against ap-pellee to recover principal and interest on seven promissory notes aggregating $37,-500. Each note was payable 90 days from date; three of them bore interest after maturity at the rate of 10% per annum and four of them bore interest after maturity at 8% per annum. Defendant answered the complaint interposing the defense of usury in that the interest exacted exceeded 25% per annum. Defendant also proffered a counterclaim in which he sought to recover the sum of $72,710.64 in principal and usurious interest paid above the rate of 25% per annum. Defendant moved for summary judgment which was resisted by plaintiff on the ground that the pleadings and affidavits revealed a question of fact that should be tried by a jury.

The trial court found (1) that on January 15, 1951, plaintiff and defendant entered into a contract wherein it was agreed that plaintiff would advance to defendant as requested sums not exceeding $40,000; that defendant was required to pay plaintiff, in addition to interest and cost of stamps to the notes 3j/j>% interest monthly on the sums loaned; after the 3i/¿% amounts to $7,200, it should be reduced to 2% on any other sums advanced; (2) that the $7,200, if received, would be credited on a timber contract between the parties for cutting timber on a tract in St. Johns County, known as “Montgomery Sisters Tract”; (3) that during the years 1951 and 1952 plaintiff loaned defendant various amounts on which there remained unpaid the sum of $37,500, evidenced by notes executed in 1952,-some of which were renewal*; (4) that defendant paid the plaintiff the $7,200 mentioned in the contract of January 15, 1951, before any of the notes executed in 1952 being sued on, were executed. The gist of the trial court’s findings are embraced in paragraphs 5 and 6 as follows:

“5. That the terms, meaning and intent of said written contract of January 15, 1951, at least so far as applicable to loans made after said $7,200.00 was paid, are clear, plain and unambiguous and are not subject to be changed, varied or contradicted by parole [sic] as Plaintiff seeks to do: that said contract is and was a contrivance or device by which Plaintiff was to charge and exact from Defendant interest on said notes made and dated in 1952 pursuant to said contract at the usurious rate of more than 25% per annum, to-wit: at the rate of 6% per annum plus 2% per month: that Plaintiff pursuant to said contract did wilfully and knowingly charge and exact from the Defendant on each of said notes made and dated in 1952 and aggregating the sum of $37,500.00 interest at the usurious rate of more than 25% per annum, to-wit: at the rate of 30% per annum; and that because of said usurious interest charged, exacted and paid each and all of said notes are void and unenforceable, both as to principal and as to interest.
“6. That there is no genuine issue in this case between the parties to this suit as to any material fact above found by the Court and that the Defendant on his motion is entitled to the summary judgment herein made and entered as a matter of law.”

From this order and finding the plaintiff appealed.

The point for determination is whether or not the appellee was obligated to appellant in any manner when he (appellant) on January 15, 1951, agreed to loan ap-pellee not in excess of $40,000, as result of their previous contract concerning the “Montgomery Sisters Tract.”

It is not clear that the record discloses a “contrivance or device” to evade the usury law. In all other respects the judgment appealed from finds ample support in the record, but on this point there may have been a material issue of fact. If this be true, then it was error to grant summary judgment. The letter of January 15, 1951, was admitted in evidence. There is no doubt that the loans to appellee were made pursuant to agreement stated therein. Appellee carried the 3i/£% monthly “interest” on his books as such but labeled it “Montgomery Sisters Tract,” so he would know when he had paid $7,200 as the “interest” rate thereon reduced itself to 2% monthly, plus 6% per annum. Ap-pellee’s bookkeeper testified that he carried it on his books as “Montgomery Sisters Tract Loss,” but later the auditor required him to change it to an expense item, “interest.”

Appellee carried a capital account on his books known as “Montgomery Sisters Tract.” It is not clear as to what manner this account referred to any obligation of appellee. It is clear that the parties had some kind of an agreement about this land. The record indicates that appellant had title to it and when appellee removed and paid for a certain portion of the timber (approximately $72,000), appellee was to have one-half interest in it. The contract concerning “Montgomery Sisters Tract” was introduced in evidence but it does not appear in the record. It must have been dated in the year 1945 but before appellee got title to one-half of the -property, the contract was cancelled. To what extent it was cancelled may determine the issue of fact in controversy.

Appellant contends that he cancelled only that part of the agreement relating to the one-half interest in the land but that the liability of appellee for cutting the timber continued. Page 40 of appellant’s deposition supports this contention but when the timber and the land contracts are read together, it appears that if Bryce cut and removed timber to the amount of $72,000 and paid for it, he would be entitled to one-half interest in the land and in the remaining timber. The view of appellee as to existence of any liability under the timber contract as shown by his deposition at page 33, is different.

From the evidence referred to in the preceding paragraph Parker says Bryce is still obligated under the old timber contract while Bryce flatly disputes any such obligation. It necessarily follows that if the 31/2 % monthly interest were in payment of any obligation that Bryce may have made, certainly Parker was not guilty of violating the usury law. If an obligation between the parties existed, it may have been no more than an installment device for paying the obligation. Inspection of the summary final judgment does not disclose that the trial court considered and ruled on the point as to continuation of the obligation. It was not enough to conclude that it was a scheme to avoid the usury laws. It is certain that the “Montgomery Sisters Tract,” referred to in the letter of January 15, 1951, was a subject the trial court should have inquired into. If there was a bona fide dispute as to liability under said agreement it would be such a material fact as would preclude the entry of summary judgment.

If the trial court has in fact considered this aspect of the case, reversal for new trial might not affect the result since he had the contract before him and we do not. He may have found that there was no obligation on the part of appellee under “Montgomery Sisters” contract but from the language of the summary judgment it is not clear that he followed the course pointed out here. Appellant contends that there was a genuine issue of material fact for determination of a jury. While it is contended that he never requested’ a jury trial, whether that is true or not, he is entitled to a determination of this issue.

The judgment appealed from is accordingly reversed and a new trial awarded.

DREW, C. J., and HOBSON and O’CON-NELL, TT., concur.


text:
    6701 REALTY, Inc., a Florida corporation, Appellant, v. DEAUVILLE ENTERPRISES, Inc., a Florida Corporation, and Deauville Realty Co., Inc., a Delaware corporation, Appellees.
    Supreme Court of Florida. Special Division B.
    Dec. 20, 1955.
    Rehearing Denied Jan. 23, 1956.

      Sibley & Davis, Marion E. Sibley and Milton E. Grusmark, Miami Beach, for appellant.
    Williams, Solomon & Katz, Miami, for appellees.
   THORNAL, Justice.

Appellant, defendant below, appeals from a decree appointing a receiver and terminating a lease pursuant to a complaint filed by the appellees. Appellees, as lessors, executed to appellant, as lessee, a ten-year lease which included the following provisions :

“The Lessee upon the execution of this lease will forthwith deposit with the Lessor $115,000.00 in cash, certified or cashier’s check, which the Lessor will hold as security for the performance by the Lessee of'its covenants and agreements hereunder, as well as for the payment of rent, and unless paid to Deauville Realty as part payment of the purchase price upon the exercise of the option to purchase hereinafter recited or to remedy any prior default of the Lessee prior to the end of the term, the Lessor will apply said $115,-000.00 or any unapplied portion thereof to the payment of the rent for the last year of the term. The Lessor will pay to the Lessee interest at the rate of two per cent (2%) per annum from the date of said deposit by the Lessee on the unapplied portion of said deposit annually. The payment of said interest and the proper application of the said $115,000.00 deposit shall be secured by a mortgage of the leasehold of Deauville Enterprises, Inc. under a lease dated June 14, 1935, by and' between Thomas Manor, Inc. as Lessor, and Garden Suburbs Golf & Country Club, Inc., as Lessee, now assigned to Deauville Enterprises, Inc., and a second mortgage in the sum of at least $115,000.00 of the fee of Deau-ville Realty in the premises hereunder demised unless the title of Deauville Realty is divested, both of which mortgages shall be given to a nominee satisfactory to the Lessor and Lessee, subject only to the existing first mortgage covering the fee and the said leasehold.
******
“XXIX. Forfeiture. If the Lessee shall neglect or fail to perform or observe any of the covenants contained herein and on the Lessee’s part to be performed or observed, or if the Lessee’s estate created by this lease is taken by execution, or by any other process of law, then the Lessor lawfully may, immediately or at any time thereafter, if said defaults are not remedied within the grace period heretofore allowed, give the Lessee notice terminating said lease, or without demand or notice, enter into and upon the demised premises or any part thereof, and repossess the same and expel the Lessee and those claiming through or under it, and remove their efforts, forcibly if necessary, without being guilty of any manner of trespass and without any prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon such entry, this lease shall determine; in case of such termination the Lessee will, at the election of the Lessor, either (a) pay to the Lessor the rent and other payments provided in the same installments equal to the difference between the rent and other payments provided in this lease, and the sums actually received by the Lessor as liquidated damages for the unexpired term; or (b) pay to the lessor as liquidated damages, a .sum which at the time of such termination, represents the difference between the rental value of the demised premises and the rent and other payments provided in this lease for the residue of the terms or (c) indemnify the said Lessor against loss of rent and other payments provided in this lease from the time of such termination during the residue of the term.”

On May 8, 1953, appellees filed a complaint alleging default in payment of certain monthly deposits to cover anticipated taxes, the failure to pay insurance premiums in substantial amounts, default of rent payment due April 1, 1953, and further alleging waste, failure to repair as required by the lease, internal strife within the corporation and depletion of assets by the stockholders in favor of themselves personally. On May 20, 1953, the Court appointed a receiver on the basis of the sworn complaint, the defendant agreeing that the matter be heard on the complaint without testimony, and without an answer or motion attacking the sufficiency of the complaint. Subsequently an answer and motion to dismiss were filed and testimony was taken. On October 19, 1953, an order was entered dismissing the complaint on the ground that it was a bill for declaratory decree and merely sought legal advice from the Chancellor as to which of several courses of action might be available to the plaintiffs under the lease. Leave was granted to amend the complaint but the receiver was not disturbed.

On November 18, 1953, the appellees notified appellant that they were electing to terminate the lease under the provision above quoted and on November 23, 1953, amended complaint was filed seeking termination of the lease for the various defaults described in the original complaint. Thereupon the receiver was re-appointed and after an answer to the amended complaint was filed, more testimony was heard by the Chancellor and the final decree was entered, cancelling the lease and awarding possession to the lessor.

Appellant seeks reversal on the grounds that the notice of termination was not sufficient to end the tenancy because there was no re-entry by the lessor pursuant to the notice. Further, that the security fund described above should have been applied to the early defaults and thereby prevent an ouster prior to exhausting the entire deposit. Appellant further contends that the amended complaint constituted a departure from the original complaint and thus stated a new cause of action and, therefore, the motion to dismiss the amended bill of complaint should have been granted.

On cross assignment appellee seeks a ruling on the correctness of the order sustaining the motion to dismiss the original complaint.

On the contention o£, the appellant that there was no termination of the lease without a re-entry, we must refer to the provisions of the lease itself. Under paragraph XXIX, quoted above, it should be noted that the lessor is authorized to bring the tenancy to a close by giving “the Lessee notice terminating said lease * * * ” This phrase is followed by, and separated from the remainder of the clause by, the disjunctive “or”, and it was, therefore, an alternative method of terminating the lease. In the instant case by the notice of November IS, 1953, the lessor gave to the lessee the required notice and thereby established a termination of the tenancy. While it is true that the lessor did not actually obtain physical possession until the entry of the final decree, nevertheless, the decree merely sustained and confirmed the ending of the tenancy brought about by the service of the notice.

A lease may be terminated either by statutory landlord and tenant proceedings or by compliance with stipulations incorporated in the written lease by the parties themselves. In this instance the lessor followed the latter procedure and was entitled to do so.

Appellant further contends that the “security deposit” described in the lease should have been applied pro tanto as defaults occurred and that, therefore, there could not have been any default until the security deposit was exhausted.

We -do not understand this to be the nature of the deposit described in the lease before us. An. examination of the provisions of the lease reveal that it was in the nature of a deposit of money to save the lessor against loss to the extent of the amount of the deposit upon the proper termination of the lease on the occurrence of a default. See Hyman v. Cohen, Fla. 1954, 73 So.2d 393. Under any different interpretation the security deposit could be of little value for the reason that the tenant could merely permit defaults to occur to the extent of the amount of the deposit and then remain on the premises and leave the landlord without the security of the deposit obviously intended by the lease.

Finally, appellant . contends that there was a departure from the original complaint by the amended complaint and that on this ground the amended complaint should have been dismissed. The original complaint sought a declaration of the rights of the lessor under the lease, the enforcement of such rights once declared and immediate appointment of a receiver. The amended complaint sought a termination of the lease, the appointment of a receiver and the adjudication of amounts due the lessor for the accrued defaults and damages for breach of the lease in accordance with its provisions.

Under rules previously announced by this Court, we do not consider that there was a fatal departure or such difference in the essential elements of the two complaints as to justify a dismissal of the amended complaint on the ground alleged. In Lopez v. Avery, Fla.1953, 66 So.2d 689, 691, we held: ^

“The law is plain that where an amended pleading asserts rights or claims arising out of the same transaction, act, agreement or obligation on which the original pleading is founded, and the parties in interest and the essential elements of the controversy remain the same, the amendment will not be regarded as a new cause of action, and the amended pleading should not be dismissed on the ground that it constitutes a departure. Gibbs v. McCoy, 70 Fla. 245, 70 So. 86; Merchants & Bankers Guaranty Co. v. Downs, 128 Fla. 767, 175 So. 704; Atlantic Coast Line Railroad Co. v. Edenfield, Fla., 45 So.2d 204.”

The record before us reveals that the testimony taken on the original complaint was used' to support the amended complaint, supplemented by the ’ notice to terminate. Actually, while in the nature of a bill for declaratory decree, the original complaint was aimed at the same ultimate objective set forth in the amended complaint and granted by the final decree. We see no fatal departure.

On the cross assignment seeking a ruling on the correctness of the order sustaining the motion to dismiss the original complaint we find that the only purpose to be served by a ruling would be to -approve the allowance to the landlord of rents during the receivership prior to the November 18, 1953, notice of termination. Although the order sustaining the motion to dismiss the original complaint probably should -not have been, granted for the reason that the complaint did contain sufficient equity to support the appointment of the receiver, nevertheless, the landlord-appellee, by the ultimate final decree, has received the same relief as if the original complaint had not been dismissed and, therefore, no harmful error has occurred.

Finding no error, the decree of the lower Court is affirmed.

DREW, C. J., and THOMAS and HOB-SON, JJ., concur.


text:
    Charles DROZEWSKI, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    Rehearing Denied Jan. 23, 1956.

      Martin P. Shachat, Miami, and George L. Jackman, Miami Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and Moie J. L. Tendrich, Asst. Atty. Gen., for appel-lee.
   DICKINSON, Associate Justice.

This is an appeal from a conviction of defendant for manslaughter on a charge and trial for murder in the first degree.

The facts are very sordid. They resulted from a drinking spree which ended in the death of one of the parties thereto by drowning. The record is very lengthy and the case patiently tried in the Court below.

Four main assignments of error are urged, 1) insufficiency of the indictment, 2) that the Court improperly allowed introduction of certain evidence or witnesses after ordering its availability to defendant, 3) that the conviction was contrary to law and evidence, and 4) that the sentence was excessive. These will be answered in the order named.

The information charges that defendant did unlawfully and from a premeditated design to effect the death of one Barney Ras, kill and murder him, etc., by “drowning him” etc., and in a second count that the defendant did unlawfully and from a premeditated design kill and murder the said Barney Ras by “striking him with his hands, kicking him with his feet, and drowning him” etc. It is difficult to see how the information could have been more explicit or detailed. The objection seems to be that drowning is a natural act and not one as a basis for homicide. The word “drown” as used in this instance is a verb meaning to cause water to be taken into the lungs, thus causing death. In other instances “drown” may be an adjective or a noun, but as a verb it can only mean one thing. It is descriptive of the method of effectuating the death. It is not necessary to say that defendant pushed decedent under the water and held him there until all his lungs were filled with water and he died. The defendant was advised of the offense for which he was charged and the only purpose of an indictment is to fairly apprise the defendant of the charge. Any further particulars should have been elicited by way of motion for more definite statement and the like, not motion to quash.

The second question is answered by the case of Perez v. State, Fla., 81 So.2d 201. Prior to trial the defendant requested a list of all witnesses and statements, which request the Court granted. Thereafter defendant did not request the information from the States Attorney nor follow up this order. Certainly the States Attorney is not required to deliver them to defendant counsel when he did not follow up the advantage given him of this order. It is as much his duty to be diligent as it is of the States Attorney to comply. No request nor refusal is shown in the record, hence no error occurred in proceeding to trial, especially the one whose testimony the introduction of which was complained of was one of the drinking companions of both defendant and deceased at the time of the offense who had left the state after the death and who was known to defendant and his counsel a few days before the trial.

As to the third question, suffice it to say that the evidence is sufficient for a jury to have concluded that the defendant was guilty of manslaughter if not of a higher degree of homicide.

As to the fourth question, a sentence of ten years for manslaughter when the maximum statutory penalty therefor is twenty years cannot be said to be excessive, especially in view of the evidence in this case including the previous record of the defendant as to prior various fracases with the law.

Accordingly, the judgment of the lower court is hereby affirmed.

DREW, C. J., and TERRELL and THORNAL, JJ., concur.


text:
    Rose G. KLEINMAN, Appellant, v. Samuel B. KLEINMAN, Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 7, 1955.
    Rehearing Denied Jan. 13, 1956.
   PER CURIAM.

Affirmed.


text:
    L. B. SOUTHERLAND, Appellant, v. Alfred GOTTESMAN, Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 20, 1955.
   PER CURIAM.

Affirmed.


text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, a New York Corporation; and J. Y. Gooch Company, Inc., a Florida corporation, Appellants, v. J. T. CLAY and Vivien J. Clay, his wife, Appellees. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, a New York Corporation; and J. Y. Gooch Company, Inc., a Florida corporation, Appellants, v. Russell STONE and Lillian Stone, his wife, Appellees.
    Supreme Court of Florida. Division A.
    Dec. 20, 1955.
   PER CURIAM.

Affirmed.


author: HAWTHORNE, Justice.

text:
    228 La. 846
    Don ORLANDO v. Mrs. Anna POLITO, Wife of Don Orlando.
    No. 41758.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Richard Dowling, New Orleans, for appellant.
    Piazza & Gulotta, New Orleans, for ap-pellee.
   HAWTHORNE, Justice.

On September 25, 1953, Don Orlando filed suit for a divorce on the ground that he and his wife, Mrs. Anna Polito Orlando, had been living separate and apart for more than two years. The wife in her answer denied the separation as alleged, and averred specifically that on or about April 29, 1953, approximately five months before the suit was filed, her husband returned home seeking a reconciliation, that bn this occasion he spent the night in their home, and that they had sexual relations.

On the issue as thus made up the case went to trial on the merits. After hearing the testimony of the witnesses the trial judge dismissed plaintiff’s suit and also overruled his motion for a new trial. Plaintiff has appealed.

The wife and a daughter testified that the reconciliation took place as alleged, and that plaintiff spent the night of April 29, 19S3, at home with his wife. This testimony was flatly contradicted by plaintiff. Consequently we have here a case involving the credibility of the witnesses. The trial judge tells us that he had an opportunity to observe the witnesses on the stand, that he did not believe plaintiff was telling the truth, but that on the contrary he accepted the testimony of the wife and the daughter, which completely discredited the testimony given by the plaintiff.

It is well settled that the trial judge’s findings on question of fact, and particularly on questions involving the credibility of witnesses who testified before him, are entitled to great weight on appeal and will not be disturbed unless clearly erroneous. Williams v. Louisiana Ry. & Nav. Co., 121 La. 438, 46 So. 528; Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Plunkett v. United Elec. Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437. We find no manifest error here.

After judgment had been rendered dismissing plaintiff’s suit, he filed a motion for a new trial on the ground that he had stayed in a hotel in Hammond on the night of April 29, 1953, the night which his wife and daughter had testified he spent at home in New Orleans, and that a new trial should be granted so that evidence of this fact could be adduced.

The wife filed her answer to Orlando’s suit for divorce on November 9, 1953, specifically alleging that a reconciliation took place on or about April 29, 1953, and the case was not tried on its merits until about three months after answer was filed. Plaintiff therefore had sufficient opportunity to produce his evidence at the time of the trial had he chosen to do so, and if any such evidence existed he could with due diligence have obtained it before the trial. For this reason we do not think that the trial judge has abused his discretion in overruling plaintiff’s motion for a new trial. For a new trial to be granted on the ground of newly discovered evidence, the party praying for it must show clearly that he discovered this evidence after the trial, and that he used every effort and all diligence in his power to timely procure the necessary evidence, and, if his vigilance is in doubt, his application must fail. See Art. 560, La.Code Pr.; Berger v. Spalding, 13 La.Ann. 580.

The judgment is affirmed at appellant’s costs.


author: MOISE, Justice.

text:
    228 La. 850
    Joe H. GREEN, Jr. v. Shelly H. BRAWLEY.
    No. 42577.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Ralph L. Roy, Baton Rouge, for relator.
    Richard O. Rush, A. Leon Hebert, Edward S. Robertson, Baton Rouge, of counsel, for respondent.
   MOISE, Justice.

Remedial writs were granted in this case to review a judgment of the trial court dissolving a temporary restraining order, sustaining an exception of no cause or right of action and awarding to Shelly H. Brawley $150 as attorney’s fees.

Since the proceedings in this case are rather detailed and complicated, we shall set them forth in chronological order for a proper understanding of the case. v

On January 12, 1955, the City National Bank of Baton Rouge filed suit on a promissory note, dated July 6, 1954, for $1,100, against Joe H. Green, Jr., maker, and Shelly H. Brawley, endorser, alleging that they were liable in solido. On March 8, 1955, a preliminary default was confirmed against Joe H. Green, Jr. No further action was taken against Shelly H. Brawley, who later purchased the judgment from the Bank and secured the issuance of a fi. fa. from the Nineteenth Judicial District Court, directed to the Sheriff of the Parish of West Baton Rouge, ordering him to seize Green’s property known as the Airline Truck Stop.

Green then brought injunction proceedings to restrain the Sheriff and Brawley from executing on the fi. fa., alleging that he and Brawley were partners and that one partner could not sue the other without a dissolution of the partnership and an accounting. Alternatively, Green alleged that the transaction had the effect of confusion, in that a partner purchased a partnership obligation. Specifically, Green alleged:

“That the transaction between the City National Bank, judgment-assign- or, and Shelly H. Brawley, defendant herein and judgment-assignee, whereby defendant Brawley purchased a judgment evidencing a partnership obligation has extinguished the right to execute upon said judgment by defendant Brawley, against another partner, plaintiff herein, prior to and without a formal liquidation and accounting of said partnership affairs.”

Following the issuance of a temporary restraining order on July 28, 1955, Brawley filed a motion to dissolve the order and an exception of no cause or right of action, and prayed for damages for the alleged wrongful issuance of the temporary restraining order.

On August 4, 1955, the trial court rendered the judgment presently under review, and on August 8, 1955, Brawley assigned all of his interest in the matter to Donald M. Melancon for a consideration of $1,250.

In his application for writs, relator alleged that the trial judge made the following errors:

“1. In sustaining the exception of no cause of action on the theory that the use of the term in article 6 of plaintiff’s petition in suit no. 53,982, ‘partnership obligation’ is a mere conclusion, and not susceptible of being a foundation for offering of proof thereunder; in dissolving the said writ of temporary restraining order on such an exception without allowing plaintiff a hearing on the merits of the case; all being contrary to the modern trend of liberality of pleading. See West v. Ray, 210 La. 25, 26 So.2d 221.
“2. In, over objection of counsel for plaintiff, Joe H. Green, Jr., considering and fixing damages for the illegal issuance of the temporary restraining order. See Cryer v. Cryer, La.App., 44 So.2d 517.
“3. In dismissing plaintiff’s, Joe H. Green, Jr., suit on the merits altogether, since the matter was up for hearing only on a motion to dissolve the temporary restraining order. See [LSA-] R.S. 13:4062 through [LSA-] R.S. 13:4071.”

We think that the term “partnership •obligation” is merely a'statement of fact in terms sufficient to offer proof thereunder; In injunction proceedings, plaintiff, Joe H. Green, Jr.,, alleged that a commercial partnership existed between him and Shelly H. Brawley and that it had never been formally dissolved. He further alleged that the note sued on by the City National Bank was given for a partnership obligation. These were certainly allegations of fact which he- was entitled to prove. Defendant Brawley was likewise notified by the petition what he would have to disprove. In the Succession of Giordano, 194 La. 648, 194 So. 577, 578, we stated:

“ * * * The purpose of the pleading act is to advise parties litigant of ,the issues in order that they might have .an opportunity to present evidence ■supporting their contentions. It also prevents a party litigant from springing surprises and catching an opponent at a disadvantage. * * * ”

In West v. Ray, 210 La. 25, 26 So.2d 221, 223, we expressed the view that:

“Technical objections and harsh rules of pleading which would dispose ■of litigants’ cases without a hearing on the merits have never been favored under Louisiana law. The modern federal rule and general tendency in all States is to be reasonable and even liberal in construing or interpreting pleadings with a view of a prompt disposition of the case on its merits, after full hearing by both parties, and where the petition fairly informs the defendant of the nature of plaintiff’s claim, the modern court will not favor dismissal and the delays incident thereto because additional information has been included which may, granting that additional facts are true, be expanded into a defense against the cause of action set forth by the petition. * * * ” See also, Florida Molasses Co. v. Berger, 220 La. 31, 55 So.2d 771.

We see nothing vague nor indefinite about plaintiff’s petition. The trial judge should have admitted evidence to prove whether or not a partnership existed in fact.

•Again in West v. Ray, supra, we stated:

“We conclude therefore that an affirmative defense, presented through exceptions or motions tried or triable only on the face of the petition, should not be sustained unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based.”

We do not believe that the allegations of plaintiff’s petition exclude every reasonable hypothesis other than that advanced by defendant in the injunction proceeding which is that the allegation, “partnership obligation,” is a mere conclusion of law. See, Columbia Fire Ins. Co. v. Black, La.App., 61 So.2d 534; Achord v. Great American Indemnity Co., La.App., 68 So.2d 643.

There was no inconsistency in plaintiff’s allegation that there had been a previous suit filed by the City National Bank against him and Brawley, and that- judgment had been rendered against plaintiff alone. In his petition, plaintiff alleged that the Bank’s petition was evidence of the fact that a partnership existed. These were all matters susceptible, of proof.

Therefore, we hold that the trial judge was in error in refusing to have a trial on the issues joined by the pleadings.

LSA-Revised Statute 13:4066 grants the trial court the right to dissolve or modify a restraining order. This is a matter which lies within the discretion of the trial judge. However, before action was taken in the instant matter, proof should have been admitted in conformity with LSA-R.S. 13:4067.

For the reasons assigned, the writs are made peremptory; the judgmént of the trial court is reversed and set aside; the case is remanded to the 19th Judicial District Court for trial on the merits in conformity with the views herein expressed; all proceedings on the writ of fieri facias to be stayed until such time as the trial court renders judgment on the issues poised.


text:
    228 La. 857
    Henry GRIFFIN and Elry Griffin v. BANK OF ABBEVILLE & TRUST COMPANY.
    No. 41704.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    . J. Minos Simon, Lafayette, for plain'tiffs-appellants.
    .Davidson, Meaux, Onebane & Nehrbass, Lafayette, for defendant-appellee.
   HAWTHORNE, Justice.

. In this suit plaintiffs seek to recover $1,994.61, alleged to be one-fifth of the proceeds of the sale of a quantity of rice, which had been collected by the defendant Bank of Abbeville & Trust Company , and applied to an indebtedness of the plaintiffs. In addition to- this amount they also ask for $1,000 in damages which they allege' they suffered on account of harassment and inconvenience, and $765.00 as attorney’s fees. From an adverse judgment plaintiffs appealed to the Court of Appeal, First Circuit. The appeal was transferred to this court by the Court of Appeal because that court was of the opinion that the amount in dispute exceeded $2,000 and hence that appellate jurisdiction was vested in the Supreme Court. See 69 So.2d 153.

Plaintiffs do not base their claim for attorney’s fees on any contract or statute or on the theory that the fees are damages for the dissolution of a conservatory writ. Consequently, as we pointed out in Brantley v. Tugwell, 223 La. 763, 66 So.2d 800, the claim for attorney’s fees in this cáse falls in the same category as an inflated claim for damages, and is one on which plaintiffs cannot expect to recover anything.

In their petition plaintiffs allege that “as a result of this tortious conduct on the part of defendants herein, they have been made to suffer harassment and inconvenience for which they claim damages in the sum of ($1,000.00) Dollars”. Plaintiffs amended their petition in an effort to show in what manner they suffered harassment and inconvenience, but we do not think that the amendment added anything to the original allegation. Plaintiffs could not have seriously expected to obtain recovery of any sum whatever as damages for harassment aiid inconvenience as such a claim has no basis in Louisiana law in a suit to recover money allegedly due, and this claim also falls within the same category as an inflated claim for damages and cannot be regarded as part of the amount in controversy so far as our appellate jurisdiction is concerned. See Brantley v. Tugwell, supra.

Consequently the only amount actually in dispute in this case is $1,994.61, which is below our minimum jurisdictional amount.

Accordingly, this case is ordered transferred to the Court of Appeal, First Circuit, provided that the record is filed m that court within 30 days from the date on which this decree becomes final; otherwise the appeal will be dismissed. All costs are to await final determination of the case.

      . Apparently realizing this fact, counsel fc in the Court of Appeal. • plaintiffs attempted to waive this claim


text:
    228 La. 861
    SCHWARTZ SUPPLY COMPANY, Inc., et al. v. Charles ZIMMERMAN.
    No. 42086.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Carl A. Conrad, Robert J. Conrad, Milling, Saal, Saunders, Benson and Woodward, James J. Morrison, Harold J. Neu-bauer, Gerald S. Quinlan, Rudolph R. Schoemann, Edward F. Wegmann, Wisdom, Stone, Pigmann & Benjamin, New Orleans, for plaintiffs-appellants.
    Cahn, Provensal & Faris, Robert R. Ramos, Leon A. Pradel, New Orleans, for intervenors and appellants.
    Porteous & Johnson; Parnell J. Hyland, New Orleans, for defendant-appellee.
   MOISE, Justice.

The plaintiffs and appellants have taken an appeal to this Court from a judgment of the district court declaring that they had not timely recorded their alleged liens and privileges on the residence owned by Charles Zimmerman, located in the City of New Orleans. A mere reading of -the chronological listing of facts makes manifest the correctness of the ruling of the trial judge.

On June 3, 1953, a building contract was entered into between Charles Zimmerman and Robert Ryan, contractor. The object of the contract was the construction of a home. This contract was recorded two days thereafter in the Mortgage Office for the Parish of Orleans on June 5, 1953.

The contractor gave no surety bond, and it was not until the home building had advanced to the last stages that Zimm'erman was apprised of this fact. Ryan, in carrying out the contractual obligation which he had undertaken, contracted with the plaintiffs appellants for the purchase of necessary building materials and the furnishing of labor. A contract existed between the material men and Ryan, but no contract was entered into between the furnishers of material and labormen and the owner of the building.

, The construction progressed for three or four months and, — according to the preponderance of the record evidence shown with a reasonable certainty — was ready for occupancy and was accepted in fact on September 28, 1953.

On September 29, 1953, the acceptance was duly recorded in the Mortgage Office for the Parish of Orleans. Between September 29, 1953 and November 2, 1953 — a period of more than thirty days — no liens or privileges were recorded against the construction. On November 3, 1953, the owner and contractor had the cancellation of the building contract recorded in the Mortgage Office. During November and December, 1953, plaintiffs recorded liens and privileges against the property for unpaid labor and materials furnished. The contractor had become a fugitive from justice.

Appellants urge that the acceptance of the building contract was premature. They contend that LSA-Revised Statutes 9:4812, which allows 60 days for the recordation of liens from the last delivery of materials or performance of services, is applicable to the present controversy.

Thé record, beyond a peradventure of a doubt, shows that when Mr. Zimmerman accepted his residence the building was complete, there being only some minor services to be performed after occupancy. These services included turning on the heating system, gas and stove connections, a shower rod installation and a floor re-sanding under the guarantee of the contract. None of these services had anything to do with the basic construction of the residence. Hortman-Salmen Co., Inc., v. White, 168 La. 1067, 123 So. 715.

Proof certain is made by the testimony of Mr. I. H. Bateman, president of the Investors Homestead, to the effect that when he inspected the building for the purpose of a $6,000 loan on September 27, 1953, it was complete. Mr. Irwin Gautier, appraiser for the Central Appraisal Bureau, testified that the house was complete on September 28, 1953. The contractor’s foremen testified that the house was complete for the time of public inspection, even though there were last minutes jobs to be done. The defendant, his son and his brother-in-law all testified that the house was complete when the Zimmerman family moved in on September 28th and 29th, 1953.

LSA-Revised Statute 9:4812, on which plaintiffs rely, reads in part:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon the said property or the last performance of all services or labor upon the same, by the said furnisher of material or the said laborer, shall create a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work or improvement, as his interest may appear. * * *” (Italics ours.)

The very language of the above statute is proof certain that it does not apply in the instant case. Here, at the expense of repetition, we again say that the defendant had a written recorded contract and an acceptance of September 28, 1953, which acceptance was recorded on September 29, 1953. There was a compliance with the exactions of the law.

LSA-Revised Statute 9:4801 provides:

“Every contractor, sub-contractor * * * or furnisher of material, machinery, or fixtures, who performs work or furnishes material for the erection, construction, * * * of immovable property, * * * with the consent or at the request of the owner thereof, or his authorized agent or representative, or of any person with whom the owner has contracted for such work, has a privilege upon the land and improvements on which the work or labor has been done, or the materials, machinery or fixtures furnished, for the payment in principal and interest of the work or labor performed, or materials, machinery or fixtures furnished, and for the cost of recording such privilege.”

LSA-Revised Statute 9:4802 reads:

“Every contract hereafter entered into for the repair, * * * construction, * * * by any undertaker, general contractor, * * * or other person undertaking such general contract with the owner * * * shall be reduced to writing, signed by the parties thereto by an authentic act, or under private signature, and shall be recorded in the office of the clerk of court or the recorder of mortgages of the parish wherein said work is to be executed, before the date fixed on which the ivork is to commence and not more than thirty days after the date of the said contract. Such re-cordation shall preserve the privileges on the building or other work of improvement, and on the land on which it is situated, in favor of every undertaker, architect, * * * and all subcontractors, * * * as their interest may arise. The owner of such work shall require of such undertaker, contractor, * * *, a bond with surety * * *. Every person having a claim against the undertaker, general contractor, sub-contractor, * * * shall serve upon the owner a sworn detailed statement of his claim, which service shall be effected by registered mail * * * and shall record a sworn .statement showing the total amount of his claim in the office of the clerk of court or recorder of mortgages for the parish in which the said work has been done, which service and recordation shall be made not later than thirty days after registry in the office of the clerk of court or recorder of mortgages of said parish of notice of acceptance by the owner of the said work, or notice by the owner of the default of the said undertaker, contractor, * * *. The delay within which to file privileges and claims shall not begin to run until the date of stick registry of acceptance by the said owner, or registry of notice of default. If, at the expiration of the said period of thirty days, there are no such claims recorded, the clerk of court or recorder of mortgages, shall, upon the written demand of the owner or other party interested therein, cancel and erase from the books of his office the inscription of said contract, except as to" the contractor or other person undertaking the work at the request of the owner or his authorized agent or representatives, and all liability of the said owner for labor and material employed in the said work shall cease, and his property shall not thereafter be subject to privileges growing out of claims arising under the said building contract, except that of the contractor or other person undertaking the work, as hereinafter set forth.” (Italics ours.)

LSA-Revised Statute 9:4803 sets forth the obligations of the surety.

It is provided in LSA-Revised Statute ■9:4806:

“If the bond is found to be insufficient in amount or not to hart a proper and solvent surety, or if no bond has been furnished or recorded within the time hereinbefore provided, but the contract has been timely recorded, the owner shall be personally liable to subcontractors, * * * workmen, laborers, mechanics, furnishers of material, or any other persons furnishing labor, skill, or material on the said work who recorded and served-their claims as provided in R.S. 9:4803, to the same extent as is the contractor, and the said personal liability as well as the privilege hereinabove provided for, shall remain in full force and effect for one year from the date of filing of such claim, as provided in R.S. 9:4802 unless interrupted by judicial proceedings.” (Italics ours.)

The rule provided by Article 17 of the LSA-Civil Code is: That all “Laws in pari materia * * * must be construed with reference to each other.” Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237; City of New Orleans v. Leeco, 226 La. 335, 76 So.2d 387; LSA-Civil Code, Article 18. The Private Works Act, LSA-R.S. 9:4801 et seq., is plain when we construe its sections in the relation of one to the other. See Glassell, Taylor & Robinson v. John W. Harris Associates, Inc., 209 La. 957, 26 So.2d 1.

We do not have to delve along the shelves of antiquity to find authority for the ruling of the trial judge. ‘ He has correctly stated the following in his reasons for judgment:

“ * * -* the claims of none of the plaintiffs were timely recorded under the applicable provisions of the law ([LSA-]R.S. 9:4802 and [LSA-] R.S. 9:4806), and * * * consequently none of the claimants has either a lien on the building or a personal claim against the owner thereof, being of the further opinion that the provisions of [LSA-] R.S. 9:4812 have no application whatever to his case, and being of the further opinion that nothing heard on the merits serves to enlarge the pleadings to the extent necessary to remove the bar of the Exception of No Cause of Action, * *

We fail to see any error on facts or any error on the trial judge’s conclusions of law. Plaintiffs did not record their claims within thirty days after the acceptance of the building was filed in the Office of the Recorder of Mortgages for the Parish of Orleans. LSA-R.S. 9:4802. Therefore, the judgment must be affirmed.

Judgment affirmed.