author: HAWTHORNE, Justice.

text:
    229 La. 901
    ZENITH CONSTRUCTION CO., Inc. v. SOUTHERN CONSTRUCTION CORPORATION et al.
    No. 42307.
    Supreme Court of Louisiana.
    March 26, 1956.

      Patín & Patín, Lake Charles, McDonald & Buchler, Metairie, for defendant-appellant.
    Miazza & Drury, New Orleans, for plaintiff-appellee.
   HAWTHORNE, Justice.

Zenith Construction Co., Inc., instituted this suit against Southern Construction Cor-portion to recover $6,703.40, the amount allegedly expended by Zenith in repairing a break in a sewer linq in the Parish of Jefferson. After trial on the merits there was judgment in favor of plaintiff in the amount prayed for, and from this judgment the defendant appealed.

On Atigust 28, 1951, the Board of Supervisors of Sewerage District No. 2, Parish of Jefferson, State of Louisiana, entered into a written contract with .Southern Construction Corporation for the laying, according to specifications furnished by the board’s engineers, of a sanitary sewer system in that sewerage district, to consist of approximately 34 miles of lateral sewers, manholes, etc. Southern executed a bond with Houston Fire & Casualty Insurance Company as surety in the sum of $1,087,116 for the faithful performance of the contract and for the payment of all persons performing labor and furnishing materials, etc. According to the. specifications the amount of the surety bond had to be equal to 100 per cent of the contract price. Southern began work on the sewer system pursuant to this contract, but after only a small amount of the work had been done Southern assigned to Zenith Construction Co., Inc., all of its “rights, obligations and duties” under the sewer contract, warranting to Zenith “the validity and good standing of said contract”. Under this assignment Southern was to retain all sums which had been paid to it by the sewerage district for work performed under the contract, and also was to receive payment for certain additional work completed for which it had not been paid, minus 10 per cent which was withheld by the board. For the faithful performance of this contract of assignment and for the payment of laborers, materials, etc., Southern gave its bond to Zenith with the Houston Fire & Casualty Insurance Company as surety in the sum of $72,064.49, which evidently represented the sum paid to Southern by the board for the work which Southern had completed under the contract.

After this assignment was approved by the board of supervisors of the sewerage district in January, 1952, Zenith stepped into Southern’s shoes and completed the construction of the sewer system. However, about May 1, 1953, before the work had been finally accepted by the sewerage district, a break occurred in 18 feet of sewer pipe which had been laid by Southern prior to the assignment. The consulting engineer for the board of supervisors of the sewerage district immediately directed Zenith to repair this break, and Zenith in turn called upon Southern to do this work. Upon Southern’s denial of responsibility Zenith made the repairs itself. This suit is to recover the alleged cost of these repairs.

To Zenith’s petition in these proceedings Southern filed an exception of no cause of action, which was overruled by the trial judge. In this court Southern urges its exception of no cause of action on the ground that there was no warranty of the work already done in its assignment of the sewer contract to Zenith, either express or implied, and that lacking warranty Zenith has no possible grounds for this suit.

We note that the act of assignment does not mention any monetary consideration to be paid to Southern for the assignment of the sewer contract. Apparently Southern in making this assignment desired to be relieved of all its duties under the contract, and Zenith was willing to assume these obligations in the expectation of making a profit on the work, of which, as we have said before, very little had at that' time been done. Under these circumstances the exception filed by Southern may be valid. However, it is unnecessary for us to pass upon this exception since we have Concluded that on the merits Zenith has not proven its case and is not entitled to recover in this suit.

For the purpose of making the necessary repairs the concrete sewer pipe which had been laid by Southern approximately 11 or 12 feet below the surface of the ground was excavated. According to plaintiff’s testimony the pipe had been broken by pressure from a piece of timber which lay across it. This piece of timber was a four-by-four approximately three feet lon^, and apparently was one of the pieces of wood which had been used in shoring the trench while the pipe was being laid. According to the testimony this four-by-four had probably worked itself down through loose dirt and sand until it rested on top of the pipe and exerted the pressure which plaintiff’s witnesses say caused the pipe to collapse. According to the specifications furnished by the board, the timber used in shoring should have been removed prior to filling the trench, and the trench should have been backfilled with suitable earth free from any timber or other deleterious matter.

As stated above, the 18 feet of concrete pipe having a diameter of eight inches in which the break occurred had been laid by. Southern in a trench 12 feet deep. The trench was then handfilled by Southern for some three or four feet with clam shells and sand. This work was done under the supervision of the board’s engineers. At the time the assignment of this construction contract was executed and Zenith took over the job, however, the remaining seven or eight feet above the 18 feet of pipe were unfilled. Zenith removed the shoring and backfilled this remaining depth of the' trench with earth which it got from “all over”.

After considering the entire record, we are of the opinion that the cause of the break in the sewer pipe has not been established by Zenith, as it is impossible to tell how the four-by-four which Zenith contends broke the pipe got into the trench— whether it was left there by Southern when it handfilled for three feet over the pipe before the assignment, whether it was left there by Zenith lat.er, or whether perhaps it was dumped into the trench by Zenith during the final backfilling process.

If we assume that this piece of timber actually caused the break in the pipe as contended by Zenith, the burden was on Zenith to establish by a preponderance of the evidence that the four-by-four was left in the open trench, or placed there, by Southern prior to the assignment. Zenith has completely failed to discharge this burden, nor has it proved with any certainty that the break in the pipe was caused by defective workmanship on the part of Southern. Under these circumstances plaintiff’s suit will be dismissed.

The judgment is reversed, and plaintiff’s suit is dismissed at its costs.

      . Joined as defendant in this case was the Houston Fire & Casualty Insurance Company, Southern Construction Corporation’s surety, but the suit against the surety was dismissed on exception of no cause of action, and from this dismissal no appeal was taken. ’


source: Caselaw Access Project

author: FOURNET, Chief Justice.

license: Public Domain

text:
    229 La. 907
    LeRoy ORTEGO et al. v. E. A. CALDWELL.
    No. 42275.
    Supreme Court of Louisiana.
    March 26, 1956.

      Fusilier & Vidrine, R. J. Vidrine, Ville Platte, for plaintiffs-applicants.
    Dubuisson & Dubuisson, Opelousas, for defendant-respondent.
   FOURNET, Chief Justice.

We granted certiorari to review the judgment of the Court of Appeal, First Circuit, reversing the district court’s judgment and dismissing the suit of plaintiffs Laurent R. Lafleur and LeRoy Ortego to recover for damage to their crops and to the land belonging to the former by water which flooded the property because of the alleged failure of defendant to construct a levee on plaintiff’s property in accordance with his contract with the Louisiana Highway Commission to rebuild a public road bordering the said property. See La.App., 77 So.2d 151.

The record discloses that plaintiff La-fleur’s property, situated in Evangeline Parish, abuts La. Highway 119, formerly a narrow gravel road with a levee - along side, the said levee having been in existence for some sixty years and having served to prevent the water in ditches along side the highway from flooding plaintiff’s fields — presently used for the growing of cotton, potatoes, etc., with the plaintiff Ortego as a tenant on a share crop basis. A project, to be undertaken in 1952, was the blacktopping of the highway, and in order to broaden the existing road it was necessary to take in that portion of the land adjoining the highway on which the levee stood. The contract for the road construction was awarded by the Department of Highways to the defendant, E. A. Caldwell; it provided for replacement of the levee by another, to be constructed within Lafleur’s fence, and contained a special provision that the owner was to be satisfied. The levee was constructed between January 2 and January 20, 1952, and with the spring rains many breaks developed. Repairs were made by the defendant but other soft spots gave way, water broke through the levee and spread over the fields with resulting crop loss and damage to top soil — the most serious damage having taken place in May, 1952; this suit followed.

The trial judge, in a well considered opinion, observing that while there were no specifications covering the construction of the levee on plaintiff’s property other than that the old levee was to be replaced by a single line rice levee parallel to the road but inside the landowner’s fence, he found after hearing all the evidence in the case that there was a provision in the contract that the levee was to be of the same efficiency and strength as the old levee and to the satisfaction of the landowner, and concluded that it was very obvious that the new levee did not meet those requirements. The loose dirt used to construct the levee had simply been graded, without being packed or staked or otherwise made sufficiently firm and strong to withstand the pressure of water from the highway ditches; and that consequently the contractor was liable for the resulting damages, which he found to be $283.32 and $266.68, respectively, for Lafleur and Ortego, with legal intérest from judicial demand.

The Court of Appeal, in reversing the judgment of the District Court, did not seriously consider plaintiffs’ contention that the contract contained a stipulation pour autrui, it being the court’s opinion that, assuming such a contention to be valid, under the holding of the Court of Appeal, Parish of Orleans, in Schott v. Ingargolia, La.App., 180 So. 462, 463, inasmuch as the construction of the levee had been completed and accepted by the Department of Highways on January 20, 1952, for which work defendant had been paid in full, he, the defendant contractor, was absolved of liability for faulty construction not only as to the department but as to any third persons who would have benefited under the stipulations of the contract. In so holding the court maintained the contention of counsel for the defendant, which had been considered and rejected by the trial judge whose opinion it was that the rule governing the Schott case is inapplicable to the factual situation here presented.

We agree with the trial judge that the rule applied in Schott v. Ingargolia, under the facts of this case, is inapplicable. The Court of Appeal fell into the error of concluding that the levee work had been accepted and paid for on the 20th of January, 1952, because of the fact that on that date a payment was made to the defendant contractor, and the levee work had been performed during the previous 18 days, which were covered by the payment; but the Court failed to take into consideration that on the 20th of each month during the progress of the work, the contractor was paid a sum, representing partial payment of his rough estimate of the cost of work done during the 30 day period, with retention by the Department of Highways of 10% of such estimate for use, if necessary, in correctional work. The levee was constructed in the very beginning of the work on the project, when workmen were just starting the dirt work for the highway, after the fences had been moved, and necessarily it cannot be said that Caldwell’s work was approved until the final acceptance of the project covered by the contract — which could not have taken place before November of 1952 because construction of the highway, according to the record, was not completed until that time. Although the defendant contractor denies that there was any complaint made to him about the unsatisfactory construction of the levee by the landowner Lafleur or by anyone on his behalf, it is nevertheless clear that Lafleur’s acceptance or approval of the work was never sought and it is equally clear that after each break occurring during this period of construction repairs were undertaken by the defendant contractor but the levee never served its purpose until it was repaired and properly packed by the landowner.

A perusal of the record reveals that the Department of Highways, in order to obtain the necessary width required to reconstruct Highway No. 119, had to acquire property from abutting owners, including the plaintiff Lafleur — who agreed to relinquish a strip along the highway and in exchange received the promise that the levee would be rebuilt to protect crops and his land from highway drainage; and in the contract for the construction of the highway, it was stipulated between the Department of Highways and the defendant Caldwell that the latter would replace the old levee to the satisfaction of the owner. Not only was such an agreement binding on the defendant Caldwell, but it could not have been revoked once Lafleur availed himself of the advantages stipulated iii his favor, LSA-Civil Code, Article Í.890; and consequently Lafleur and his tenant, for whose benefit the stipulation in the contract was made, have an equitable action against the defendant-obligor for the damages suffered as a result of his faulty performance of his obligation, LSA-Civil Code, Articles 1930 and 2769.

For the reasons assigned the judgment of the Court of Appeal is annulled and set aside and the judgment of the District Court is affirmed, defendant to pay all costs.

      . Such a levee, according to testimony in the record, is of a standard form, with a two foot crown and a slope of one and one-half to one — there being no requirement as to height, which of necessity depends on the width of the base.

      .. The case followed the general rule, as stated in 14 Ruling Case Law, See. 42, from which the quotation is taken that “ ‘ * * * an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work, and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor’s failure to properly carry out his contract.’ ”

      . “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not ' be revoked.” See, also, Article 1902, LSA-Civil Code.

      . La.Code of Practice, Article 35, declares: “An equitable action is that which does not immediately arise from a contract, but from equity, in favor of a third person, not a party to it, and for whose benefit certain stipulations have been made; * * *.”

      .“The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party, who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.” Art. 1930.
      “If an undertaker fails to do the work he has contracted to do, or if he does not . execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.” Art. 2769.


author: SIMON, Justice.

text:
    229 La. 915
    David P. SNODGRASS v. Ike CENTANNI et al.
    No. 42306.
    Supreme Court of Louisiana.
    March 26, 1956.

      ■Solomon S. Goldman, New Orleans, for plaintiff-relator.
    Dufour, St. Paul, Levy & Marx, Leonard B. Levy, William M. Lucas, Jr., New Orleans, for defendants-respondents.
   SIMON, Justice.

Plaintiff filed this suit against' Ike Cen-tanni (also known as M. S. Centanni) and his insurer, Employers Casualty Company of Dallas, Texas, for personal injuries and property damage incurred when a huge liveoak tree, being felled by defendant Centanni,, .crashed down on plaintiff’s automobile. The defendants denied liability, contending that the accident and'damages complained of were hot caused by any negligence on the part of defendant Centanni but were caused solely by the negligence of the plaintiff.

After trial on the merits, the district court concluded that the accident was • caused by the carelessness of Centanni’s employees and through no negligence on the -part of plaintiff herein and rendered judgment, in his-favor in the sum of $2,-222.69. .

On appeal, the Orleans Circuit Court of Appeal reversed the judgment of the lower court, holding, that though Centanni’s agents and servants were guilty of negligence, pláintiff’s contributory negligence defeated his right of recovery ’ and, accordingly, dismissed his- suit at his cost. Whereupon, plaintiff applied to' this court for and obtained writs to review this holding, thus presenting to us for determination the existence of contributory negligence, if any, under the facts of this case.

The record discloses that at the time of ■the accident defendant and his employees were engaged in felling a -huge liveoak tree ori a lot bounded on three sides by Metairie Road, Codifer Boulevard’ and Homestead Street in New Orleans. The Centanni workmen were endeavoring' to cause the tree to fall toward Homestead Street by using a winch truck placed at the corner of Homestead Street with a cable attached to the trunk of the tree, so that as the tree fell the winch truck would pull the cable and the tree toward the truck. A bulldozer was used at the base of the tree to assist its falling in the direction toward Homestead Street. But to the surprise of defendant’s agents and employees, and in spite of the precautions aforestated, the tree fell into and across Codifer Boulevard, trapping plaintiff’s automobile under its branches and requiring them to be cut away to extricate plaintiff from his automobile.

At about 6:00 p. m. on the day of the accident, while returning to his home from his work, plaintiff entered Codifer Boulevard, which was open, unbarricaded and unguarded. In an instant he saw a workman running across the lot, waving his arms, apparently trying to halt traffic on the boulevard due to the tree falling in a direction contrary to defendant’s preparations. Plaintiff then glanced up and noticed the tree falling toward him on Codi-fer Boulevard. He then also saw cars preceding him, travelling in the same direction at accelerated speed, presumably to get out of the path of and escape injury under the falling tree. To escape from his position of danger he had to decide in this fleeting moment whether to turn left or right and climb the neutral ground or sidewalk curbing, or to stop his car where it was without any assurance that he would escape the imminent danger, or because of his position and speed to go forward at an accelerated speed as the other cars had done. Being placed in impending jeopardy of his life and safety, he obeyed the natural impulse of self-preservation by rushing forward to escape the danger, without avail.

Defendants contend that inasmuch as the danger of the falling tree was apparent and obvious to plaintiff when he first entered Codifer Boulevard, a distance of about 100 feet from the falling tree, if he had his car under proper control and was driving at the stated speed of between 20 and 25 m. p. h., he should have been able to bring his car to a stop far short of the path of the falling tree. They contend that plaintiff having needlessly and wil-fully exposed himself to known danger is barred from recovery for injuries and property damag-e sustained by him; that his act was an assumption of risk and contributory negligence and not sudden emergency.

Defendants cite the case of Johnson v. New Orleans Terminal Co., 154 La. 515, 97 So. 795, in which the plaintiff was held to have contributed to his injury by his own negligence when he was struck by the chains of a derrick. We held that under the circumstances disclosed by the testimony of all witnesses, the danger resulting from the operation of the derrick and the swinging chains was obvious to anyone at the scene and doubly so to plaintiff, who was an experienced longshoreman and who had previously observed the operations of the derrick, with its attending dangers. The danger being thus known, visible and obvious to him, his failure to anticipate or to avoid it or to reasonably attempt to do so was such contributory negligence as would bar recovery.

The Johnson case, being based on a fundamentally different factual situation than that presented in the instant case, is clearly inapplicable.

It must be conceded that Codifer Boulevard being open to traffic with no notice or warning of any then impending danger being given, motorists had the right to assume and expect that it was practicable to travel thereon in all safety.

It is a well-established rule that persons using a public street which is in constant use and when their attention has not been called to any obstructions or perils thereon, have a right to presume and to act on the presumption that the way is reasonably safe for ordinary traffic. They are not called upon to anticipate danger, nor must they be constantly on the lookout for unknown -or latent dangers when there is nothing to put them on guard.

From our appreciation of the record in the instant case, plaintiff was confronted with an emergency caused by the defendant. Until he saw the falling tree and surrounding circumstances above stated, he was unaware of the activity of defendant and his employees. The distance of travel between the entrance of Codifer Boulevard and the site of the falling tree was measurably short, and plaintiff was afforded no opportunity to appraise the situation until he had reached the zone made dangerous by defendant, an area well known to plaintiff as an open thoroughfare often travelled daily by him in safety.

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Under such circumstances, our law does not require a driver to exercise such control or the same degree of care and caution as is required of a person who has ample opportunity for the full exercise of judgment and reason. Commercial Standard Ins. Co. v. Johnson, 228 La. 273, 82 So.2d 8.

In the case of Hudson v. Louisiana Electric Co., 7 La.App. 78, plaintiff’s husband was killed by a falling telegraph pole when he drove his automobile on an unguarded street past a place where a telegraph pole was being erected; and in holding him free from contributory negligence the court said:

“A danger is not obvious until it is seen and understood. A risk is not assumed until it is known and realized. * * * The open unguarded approach was a tacit proclamation that the pole was safely held up by the pikes.”

The rule is well stated in Corpus Juris Secundum that when a person exercises the care and caution in an emergency which an ordinarily prudent person would have used under the same or similar circumstances, he is not negligent merely because he fails to exercise the best judgment, or does not take the safest course, or does not-take every precaution which from a careful review of the circumstances it appears he mig-ht have taken, or, in attempting to escape the danger under such circumstances, puts himself in a more dangerous position. So also, where by the negligence of another, one is compelled to choose instantly between two hazards, he will not be guilty of contributory negligence although the one he selects results in injury and he might have 'escaped had he chosen the other or had he done nothing at all. Ordinary care does not require one meeting an emergency to act at all events, where he has no time to decide what to do or to think of anything to do. 65 C.J.S., Negligence, § 123.

The law does not require a choice unerring in the light of after events; it requires such a choice as, under all the known or obvious circumstances, a reasonably prudent man might make. A person is by no means held to the same judgment and activity under all circumstances. The opportunity to think and act must be taken into consideration in determining whether due care was exercised in making a choice between methods or courses of conduct. As hereinafter appears, the fact that one acts in the stress of an emergency or sudden peril not due to his own act or omission justifies conduct that would otherwise be regarded as negligent. 38 Am.Juris., sec. 193, verbo “Negligence”.

The circumstances under which a person is required to choose between methods are material in determining whether he was negligent in his choice. Usually the safest course to take when one is handling a vehicle in traffic is to stop when danger presents itself, but there is no requirement of law which will render one negligent if he fails to stop, where, in a sudden emergency, another course of conduct is consistent with ordinary prudence. The law does ■ not - expect one to exercise the same degree of judgment in an emergency wherein his personal safety is threatened, as in a situation where he is not subject to the fear of sudden disaster. The law recognizes the fact that a prudent man,, when brought face to face with an unexpected danger, may fail to use the best judgment, may omit some precaution he might have taken, and may not choose the best available method of meeting the dangers of the situation. It does not charge him with contributory negligence for the fact alone that he makes a mistake in the method adopted to escape a peril which exists not through his fault, but through the negligence of another. 38 Am.Juris., sec. 194, verbo “Negligence”.

The district court awarded plaintiff actual damages for hospital and other expenses in the sum of $328.54, for repairs to his automobile in the sum of $394.-15, and for past and future pain, suffering and inconvenience the sum of $1,500, or .a total of $2,222.69. Plaintiff prays that the judgment be amended so as to increase the award for pain and suffering. He originally prayed for $6,000 for past and future pain and suffering.

From the time of the accident, May 5, 1952, until the date of trial during March, 1954, plaintiff suffered from pain in his back as the result of the accident. X-ray studies of the lumbosacral spine revealed normal findings. Nevertheless, because of persistent pain and discomfort plaintiff was forced to wear a corset. As of the time of trial he still suffered pain when he remained inactive for a while, as well as on any physical exertion by twisting, or' turning, or lifting. Plaintiff is a trained accountant, and therefore his. daily work is sedentary; and he complains that toward the afternoon the pain in his back increases so that he is unable to sit still at his work. ’The pain increases from the activity of driving his car. Pain disturbed his rest while trying to sleep on the night of the date of trial — almost two years after the accident. We feel under the circumstances that the award by the trial court for physical injury was inadequate and should be increased to $3,000.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal is reversed, annulled and set aside, and the judgment of the trial court is amended so as to increase the total award of damages to plaintiff to $3,722.69; and as thus amended it is reinstated and made the judgment of this court.

      . Where .tlie Court of Appeal has reversed the-judgment of the district cpurt, necessarily there is no occasion for it to pass upon the quantum of damages. Upon a reversal of the judgment of the Court- of , Appeal' by this court, it has been our . practice to remand the case to said court for consideration and determination of the quantum of damages to which plaintiff may be entitled. (See Jackson v. Jones, 224 La. 403, 69 So.2d 729 and cases therein .cited, and Thomas v. Checker Cab Co. of New Orleans, Inc., 229 La. 1079, 87 So.2d 605.) However, in the instant case the quantum of damages to be fixed involves the simple and single' question of the extent of plaintiff’s personal injuries; and a casual reading of the evidence clearly establishes the quantum awarded by the decree of this court, thereby expediting á definitive adjudication in this particular case.


text:
    229 La. 929
    STATE of Louisiana v. Donald ELIAS.
    No. 42697.
    Supreme Court of Louisiana.
    March 26, 1956.

      J. Minos Simon, Lafayette, for defendant.
    Fred S. LeBIa'nc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Bertrand De Blanc, Dist. Atty., Lafayette, J. Nolan Sandoz, Asst. Dist. Atty., Abbeville, for the State.
   FOURNET, Chief Justice.

The defendant, Donald Elias, having been convicted of selling and delivering 20 marijuana cigarettes in violation of the provisions of LSA-Revised Statutes of 1950, Title 40, Section 962, as amended, and sentenced to be incarcerated in the State penitentiary for a period of 12 years, prosecutes this appeal, relying on numerous alleged errors committed during the course of the trial, properly presented'for'.review; by bills of exception.

There is no merit to the alleged error complained of in the first Bill of: Exception, reserved when the trial judge refused to grant the defendant -a continuance. It appears that the case had been fixed for trial for June 13, 1955, together with six other cases involving similar offenses, the accused persons in those cases being, all represented by the same attorney, defense counsel here, who claims that, realizing all seven could not be tried on the same day, he asked the district attorney which case would be tried first; and having been informed that another case, State v. Robert Dartez, was to be tried first, he came to court prepared to try that case only. The district attorney denies having so informed' counsel. In any event, there is nothing in the record to indicate, and in fact counsel does not even contend he was told, that the case against this defendant would not be tried on that day as fixed; nor does it appear that when the case was called for trial later in the day, the accused was not ready to go to trial — except for the absence of Dr. Kapsinow, whom he attempted to subpoena on that day but who was reported out of town; however, it was shown during the trial that the doctor’s’testimony would have been immaterial and irrelevant.

The following eighteen bills of exception, Nos. 1-A through 18, involve questions propounded to the chief prosecuting witnesses designed to attack their credibility by showing bias or prejudice and interest in the case or that-they had been corrupted;-’ and while it may appear that among the questions asked these witnesses, .and not allowed by the trial judge upon objection of the State, there may be some not relevant- or pertinent, or which are somewhat remote, and some, though proper, yet if considered alone might not be sufficient to warrant a reversal, we think there are several, particularly those covered by Bills of Exception Nos. 8, 9, 10 and 19, where the questions were propounded to prosecuting witness LeBlanc, were proper, and to deny the defendant the right to ask the questions was to deny him the right, granted him under the law, to test the witness’ credibility by cross examination, and to impeach his testimony by showing bias and prejudice, interest, or that he has been corrupted.

The contention of counsel for the State that the questions posed in said Bills of Exception Nos. 8, 9, 10 and 19 were “too remote in relationship,” but that if he is incorrect in that, their exclusion by the court was not reversible error, is untenable. One of the fundamental rights of an accused is to be confronted with the witnesses against him, Article 1, Section 9, La.Constitution of 1921-LSA; LSA-R.S. 15:365, those witnesses being subject to the right of the accused to cross-examine them, LSA-R.S. 15:376, as well as the right to impeach the testimony of every witness sworn against him, LSA-R.S. 15:486. “When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct”, LSA-R.S. 15:491, but “When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.” LSA-R.S. 15:492.

For the reasons assigned, the conviction and sentence are annulled and set aside and the case is remanded for a new trial.

      . For example, counsel for the defendant, in cross-examining Henry LeBlanc, one of the chief prosecuting witnesses who had testified he first met Trooper Otwell on March 4th, asked: “Now, the question is, isn’t it a fact that you now change your testimony because of the fact that you subsequently discovered that you have charged and you have given information and [been] called as a witness to testify that you are supposed to have purchased marijuana from Robert Elias on March 4th, 1955, and that because of that reason you are now changing your testimony at this time?” (Bill of Exception No. 14) To the same witness: “Isn’t it a fact that you were convicted twice, once in January, the last time in February, for drunk driving, and the last time for driving without a license, and Colonel Grevenberg’s department reinstated your license'in spite of both convictions?” (Bill of Exception No. 15) And again: “Having admitted that you were convicted in Lake Charles, Louisiana, and what did you say that was?” “Drunk, disturbing the peace.” “What were you doing in Lake Charles at that time?” (Bill of Exception No. 16)

      . “Have you ever had any difficulty with the father of Donald Elias?” (Bill of Exception No. 8) “Have you ever heard or been told previous to the filing of the charges by you against the accused that the accused and his father have said that you are a pimp and dopehead and not wanted around the Elias family?” (Bill of Exception No. 9) “Isn’t it a fact that during the month of February, 1955, that you were thrown out of the place of business of Wilfred Elias, father of the accused, because you were not wanted around; that he accused you of being a dopehead and a pimp?” (Bill of Exception No. 10) “Isn’t it a fact that on the night of March 23rd that the State Troopers picked up Mr. Wilfred Elias, that he was brought to the temporary headquarters of the State Police here in Lafayette and that you were in the same room with him, and didn’t you then and there ask Mr. Elias if he remembered you and he told you that he didn’t know and that you, in turn, asked, ‘You remember me. I am the guy that you said was a dopehead, and I am the guy that you threw out of your place of business,’ and Mr. Elias said, ‘Yes, I recall you.’ And didn’t you say T am going to show you what I can do to you Elias’ at that time, or words to that effect? Did you make that statement?” (Bill of Exception No. 19)


author: TATE, Judge.

text:
    Ben R. MAYER et al., Plaintiffs and Appellants, v. David B. OZENNE et al., Defendants and Appellees.
    No. 4202.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Landry, Watkins, Cousin & Landry, New Iberia, for appellants.
    E. L. Guidry, Jr., Alex Rouley, St. Mar-tinville, for appellees.
   TATE, Judge.

This is an action to annul a tax title. Plaintiffs appeal from adverse judgment.

The legal issue concerns whether payment of taxes on a tract wholly assessed in one parish invalidates the tax sale by the neighboring parish of that portion of the. tract actually situated in the latter parish.

The facts are stipulated.

Defendants’ predecessor in title purchased at tax sale in St. Martin Parish the 89.11 acres involved in this controversy. This tract lay south of the Bayou Portage, the undisputed boundary line between St. Landry and St. Martin Parishes. It is unquestioned that the land was actually situated in St. Martin Parish, although described as being in St. Landry Parish both by the original patent from. the State,, as well as by all the subsequent mesne conveyances through which plaintiffs acquired record title thereto from the original pat-entee. The original patent and these subsequent deeds conveyed title to a-201.06 acre tract of land located in Sections 26 and 35, T7S, R6E; most of which acreage was north of the Bayou Portage and correctly designated as in St. Landry Parish.

. The entire tract, correctly described by governmental section numbers, was assessed in St. Landry Parish up through 1951. Taxes thereupon were paid by plaintiffs and their predecessors in title. Prior to the tax sale giving rise to this contro,--versy, all record title to the property — including the 89.11 acres involved within the larger tract, always described as entirely located in St. Landry Parish — was solely recorded in St. Landry Parish.

In 1943, for the, first time, the 89.11 acre tract was assessed in St. Martin Parish. Properly described by governmental section number, it was assessed to “unknown owner’s” on St. Martin Parish’s supplemental tax roll for 1942 taxes; see LSA-R.S. 47:1-964, 1966. Later that year, D. B. Ozenne purchased the acreage at St. Martin Parish tax sale for unpaid 1942 taxes due in the amount of $26.83. All defendants claim title through Ozenne’s acquisition at tax sale.

It is stipulated that plaintiffs, record owners of the land, had no actual notice or knowledge that'the land acquired‘by them as located entirely in St. Landry Parish, was actually partly situated in St. Martin Parish until immediately prior to institution in 1952 of this suit to annul the tax sale through which defendants claim.

Both parties rely on Article 10, Section 11, LSA-Constitution of the State of Louisiana, which provides in part:

■ “No sale of property for taxes shall be set aside for any cause, except on proof .of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted * * within five years from the date of the recordation of the tax deed, if no notice is given.” (Italics ours.)

Defendants of course urge that this suit is barred by the’ constitutional peremption of five years.

rPlaintiffs, on .the contrary, urge that their payment of 1942 taxes in St. Landry Parish constitutes a prior payment of the taxes for which the property was sold. It is, of course, well settled that a tax sale of property upon which the taxes have previously been paid is an absolute nullity, 'not curable by the prescriptive period provided by the Constitution, Third District Land Co. v. Lassere, 204 La. 451, 15 So.2d 850, La Caze v. Boycher, La.App. 1 Cir., 80 So.2d 583.

Rlaintiffs-appellants rely particularly on Booksh v. A. Wilbert Sons Lumber & Shingle Company, 115 La. 351, 39 So. 9, and Kernan v. Young, 119 La. 238, 44 So. 1, 43 So. 1018. In these cases, the tax sale by an adjacent parish of the portion of the land actually situated therein, was held invalidated by the prior good faith payment by the record owners of the taxes in the parish where the record title to the land (included in a larger tract) was recorded and where the property was assessed.

However, the Kernan case is. distinguished among other reasons by the fact that the tax debtor had continuously been in corporeal possession o'f the land, which our jurisprudence has uniformly held prevents the running of the constitutional per-emptive period, Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818, see Fordham and Hunter, “Some Observations on the Louisiana Property Tax Collection System,” 7 La. Law Review 459 at 464-466.

Likewise, the Booksh case can clearly be distinguished from the present. Therein, the parish boundary line was in dispute. The land actually lay in West Baton Rouge Parish. It was the common understanding that the property in dispute was situated in Iberville Parish, wherein record title was recorded and in which parish the taxes on the property had been continuously assessed and paid through the year 1885. In that year, the adjacent parish, West Baton Rouge, also. assessed the property as being situated therein. The tax adjudication by West Baton Rouge Parish in 1886 was held, invalid as against the true owners. The substance of the holding of this case is as follows, 115 La. 356, 39 So. 9:

“This improper, assessment was -the result of a common error, which * * * cannot prejudice the acquired rights of the citizens. * * * We are of the opinion that the assessment of 1885, made in the parish of Iberville, under these circumstances, was valid and enforceable, and that the taxes were properly paid to the tax collector of said parish, who had apparent authority to collect.”

In the present case, of course, the parish boundary line was not in dispute. There was no “common error”. .

In Albritton v. Childers, 225 La. 900, 74 So.2d 156, our Supreme Court specifically held invalid the assessment and tax sale by East Baton Rouge Parish of the portion of the tract actually situated in East-Feliciana Parish. Although the original deed described the property as located in East Baton Rouge Parish and was recorded therein, the situation was specifically distinguished from that in the Booksh case: for there could be no “common error”, the East Baton Rouge-East Feliciana parish boundary being well established by survey long prior to the assessment and tax sale.

The following statutory provision, which was not in effect at the time of the Booksh assessment and tax sale, now governs the assessment of tracts partly situated in two parishes:

LSA-R.S. 47:1952: "* * * When a line between two parishes divides a tract of land, or plantation, each portion shall be assessed in the parish in which it lies * * *. When the lines of parishes are in dispute as to their real location, the lines as shown by ‘Hardee’s Map’ of 1895, shall be the lines for assessment purposes and the parish or parishes affected thereby shall be governed by such lines unless a court having competent jurisdiction shall decree otherwise.” Section 11, Act 170 of 1898, is source' of this provision.

In a case where the ground location of the boundary line between Grant and Rapi-des Parishes was indefinite and uncertain, “it was the duty of the assessor of Grant Parish under the law to be guided by Har-dee’s Map .of 1895 and assess the property for taxation in that parish. The object and purpose of the statute in providing'that Hardee’s Map of 1895 should govern for the purposes of assessment where parish lines are in dispute as to their real location was to make certain that the same property would not be assessed in two parishes”, Roy O. Martin Lumber Co. v. Baird, 225 La. 14, 71 So.2d 865, at page 868. In this case, a tax' sale made under assessment by Grant Parish was held valid, although the owner of record claimed the greater portion of the tract was actually situated in Rapides Parish per War Department surveys. (His title deed described the property as ‘“situated in Grant Parish and/or Rapides Parish, Louisiana’ ”.)

As appellants urge, these two cases may somewhat be distinguished factually from the present. However, we feel they support a holding that not' only invalid are tax sales based upon assessments of property actually situated in another parish, made in violation of LSA-R.S. 47 :- 1952, above-quoted: the illegal' assessments themselves are invalid. Such invalid assessments are ineffective not only for purposes of acquisition of tax sale title based thereupon, but also for purposes of satisfying (by payment in accordance therewith) any tax liability on the land thus invalidly assessed. Contrariwise, tax sales of property assessed in compliance with the provisions of LSA-R.S..47:1952 above set forth will be upheld..

In the present instance, the invalid assessment in St. Landry- Parish of land actually in St. Martin Parish could be basis neither of a valid tax sale of said land, nor of valid satisfaction of the tax liability thereupon. Contrariwise, .from the valid assessment of these lands in St. Martin Parish arose the usual legal consequences, including valid tax sale for non-payment of taxes per such valid asses'sment.

Plaintiffs-appellants likewise urge that the St. Martin Parish tax sale is invalid because “sales for "taxes, partly legal and partly illegal, are invalid”, Booksh v. A. Wilbert Sons Lumber & Shingle Co., 115 La. 351, at page 357, 39 So. 9, at page 11. The basis of this argument is that the payment in St. Landry Parish included full payment of State and drainage' district taxes upon said land, for non-payment of which taxes "(along with non-payment of St. Martin Parish taxes) the land was sold in St. Martin Parish. “It is well settled that a sale made for taxes a part of which were previously paid, no matter by whom, is absolutely.null and is not protected by the prescription of three years [cases cited]”, Mecom v. Graves, 148 La. 369, at page 372, 86 So. 917, at page 918.

We will pretermit a discussion of whether at least some of the cases upon which this doctrine was based were constitutionally overruled by various additional protections afforded tax sales by the Constitutions of 1898, Section 233, 1913, Section 233, and 1921, Article 10, Section 11. For, as previously indicated, we cannot accept appellants’ premise that the taxes paid in St. Landry Parish in accordance with the invalid assessment could satisfy any part of the tax liability for the land in ¡St. Martin Parish, whether for State or for parish taxes.

Counsel for plaintiffs-appellants in most eloquent and able brief and oral argument finally urge that it is most inequitable that the record owners should lose their land when they paid the taxes thereupon in good, faith in the parish of its location according to record title and assessment. We are indeed cognizant that inequities must sometimes result when owners lose their property through inadvertent .nonpayment of taxes, see Drey£ous, "The Per-emption Trap”, 3 La.Bar Journal, No. 2, page 81.

But the People of Louisiana, by the constitutional provisions earlier cited herein, have attempted to provide the State’s governmental units with adequate revenues and tax collecting machinery by affording greater security in titles derived from tax sales, see Fordham and Hunter, “Some Observations on the Louisiana Property Tax Collection System,” 7 Louisiana Law Review 459.

In the present case, for instance, is one relying on a purchase at tax sale to be required to check the assessment rolls of other parishes to see whether by some mischance the land was incorrectly assessed and taxes paid therein? Or, rather, should the duty be upon the landowner to see that his land is properly assessed in the parish where actually situated, and to pay the taxes thereupon in said parish ?

The guiding principle to be derived from the jurisprudence cited seems to be that neither owner-taxpayer nor the purchaser at tax sale may rely upon an assessment invalid as being in a parish other than that in which the property is actually situated under LSA-R.S. 47:1952; and that such statutory provision governs whether or not an assessment can be the basis either of a valid tax satisfaction or of a valid tax title.

.For the above and foregoing reasons, the judgment of the District Court herein is affirmed.

Affirmed.


author: ELLIS, Judge.

text:
    Richard BANKS v. KENT PILING CO., Inc.
    No. 4167.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Wagner & Jarreau, New Orleans, Iddo Pittman, Jr., Hammond, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

The plaintiff has filed this suit against Kent Piling Co., Inc., alleging that on June 20, 1952, while employed by defendant to do strenuous, heavy work consisting of sawing and cutting logs, operating a “logger’s dream” and while removing stumps, he attempted to disengage a part of the “logger’s dream” referred to as the “heel,” the catch of which had been broken, that his left forearm and hand were caught in the- machine causing severe injuries and fractures. Pie prayed for compensation in the amount of $26.33 not to exceed 400 weeks for total and permanent disability with interest at the rate of 5% on each past due payment from its due date until paid, subject to a credit for any compensation that may have been previously paid.

The main defense offered by answer and in the District Court was a denial that the plaintiff was employed by the defendant company on the date of the accident but, in truth and in fact, was employed by the K & H Stock Farm, a partnership composed of Charles R. Kent and his brothei-in-law, Thomas J. Hood.

The case was tried and the District Judge with written reasons dismissed plaintiff’s suit on the ground that the latter had failed to prove that he was an employee of the defendant Kent Piling Company, Inc., and from this judgment plaintiff has appealed.

. Plaintiff contends on appeal, ¡first, that the judgment .of the District Court was manifestly erroneous in that the record shows that plaintiff on the date of his injury was employed by Kent Piling Company, Inc., and, in the alternative, if, in truth and in fact, plaintiff was not performing service for the defendant at the time of the accident, then under the facts in this particular case he falls in the category of a-borrowed employee, under the principle set forth in Malone’s Louisiana Workmen’s Compensation Law and Practice, under Section 57 dealing with borrowed employees wherein it is stated:

“A lending arrangement is in effect a three party agreement. This means that not only must there be an understanding between lender and borrower, hut the employee, as well, must have consented to the change of masters. For example, a construction laborer was ordered by the company employing him to perform work on the private property - of one of the company’s officers under an arrangement whereby the company continued to be responsible for his wages, but was to be reimbursed by the officer. This was ■without the knowledge of the employee, who reasonably believed that he was doing company work subject to its orders. Under these circumstances the company was not allowed to deny that the claimant, who was injured during this assignment, was its employee.”

It is shown that plaintiff was injured on June 20, -1952 as alleged in his petition; that at the time Charles R. Kent was operating the “logger’s dream” on the property belonging to himself and his brother-in-law, Tom Hood, and as the plaintiff attempted to disengage the “heel” on the “logger’s dream” his arm and hand were caught and apparently crushed so as to fracture bones in both. On the date the accident happened Mr. Hood was also present. Plaintiff was taken to the Charity Hospital at Independence where he remained approximately three months and then to Charity Hospital in New Orleans for an additional three months. He was paid $39 every two weeks by Kent Piling Company, Inc., until July 14, 1953. This suit was filed on July 14, 1954. Answer was filed on September 4, 1954 and on September 14, 1954 on motion of plaintiff’s counsel the payroll records of Kent Piling Company, Inc., for April, May and June, 1952, were secured as well as the social security and income tax withholding records of the plaintiff for March 15, 29, April 12, and 26. Counsel for plaintiff had asked for these records for April, May and June, however, the defendant produced the records as above described, denying any employment of the plaintiff during May and June. In fact, the defendants deny any employment of the plaintiff after April 19, 1952.

Counsel for plaintiff also on ¡September 14, 1954 under LSA-R.S. 13:3781 propounded interrogatories in which he asked if the plaintiff was not employed by Kent Piling Company, Inc., during April, May and June of 1952, then who were his employers during those months and particularly June 20, 1952, the date of the accident. On September 21st the interrogatories were answered and therein it was stated that the plaintiff was employed by Chas. R. Kent and Thomas J. Hood on their cattle ranch in June 1952, and that he was paid by them out of funds owned by them on deposit with Kent Piling .'Company, Inc.

On the trial of the case it was shown that Charles R. Kent on the date of the accident was also the woods superintendent for the Kent Piling Company, Inc., as well as secretary of Kent Mercantile Company. The latter two companies, while composed of some members of the Kent family, were separate and distinct corporations.

Plaintiff stated that he had been working for Kent Piling Company, Inc., off and on for about six years; that Charles R. Kent was his boss and that he worked interchangeably for the defendant company and on the K & H Stock Farm -according to instructions from Charles Kent, that on June 20," 1952, Charles Kent had sent him to the farm and he was engaged in moving some stumps, apparently with the “logger’s dream” when he was hurt as above .described.. He further stated that he had been working on this farm about three days and that prior to that time he had been working in the woods at his regular job of sawing logs for Kent Piling Company. It was his positive testimony that he was moved back and forth from sawing logs in the woods to the K & H Stock Farm, but that all this time he received the same rate of pay from the Kent Piling Company and that as far as he knew and believed he was always working for the defendant company. It is definitely proven that the Kent Piling Company, Inc., paid its employees every two weeks in' cash which had been placed in an envelope, although the record shows the various witnesses, including the President of Kent Piling Company, Mr. Tom Kent, referred to the payment of wages by check.

Plaintiff testified that he was unable to do any other work than trying to help his mother with her pulp wood truck. He stated that he could only drive the truck, that he could not pick up any pulp wood nor saw any logs.

By consent a report of an examination by Dr. Irvin Cahen of New Orleans was placed in the record and it was his opinion that plaintiff’s hand was useless for excessive physical activity, and that his condition was permanent in type.

Under cross-examination plaintiff admitted that he was “tonging” the “logger’s dream” while Charles R. Kent operated it, and that they were clearing up the stumps on the K & H Stock Farm. According to plaintiff’s testimony he continually worked for the Kent Piling Company up to the date of his injury. Plaintiff states, however, that at times during his employment with the defendant company Charles R. Kent would take him to work on the K & H Stock Farm but that he considered he !was still ■ workihg for the company, mainly because' Charles Kent was the woods superintendent for the company and he testified that there "was no difference in his pay for the days he worked at the farm in that he was paid by Kent Piling Company in cash every two weeks.

Plaintiff offered the testimony of Wash Qiandler, Monroe Brumfield, , Monroe Booty, all fellow employees, who testified that on June 20,, 1952 they were employed by Kent Piling Company, Inc., that they had worked with Richard Banks in the woods and on the farm; and they all stated that on the day of Bank’s accident he was working on the farm whereas they were in the woods; they further testified that they at times worked on the farm for two or three .days and then back to the woods; they got such orders from Charles Kent, foreman of Kent Piling Company, Inc. These witnesses stated that they were paid every two weeks and, there was no difference in the way they were paid whether they worked in the woods or on the farm; that it came through the Kent Piling 1 Company office. Chandler testified that Banks had worked in the woods with the other employees within a week prior to the accident. Monroe Booty testified also that Banks had worked in the woods with him not more than four days prior to his injury. This witness testified that he had helped cut the timber for the Kent Piling Company off the land of the K & H Stock Farm, and that he had gone back once in a while to burn stumps and brush. This witness positively stated1 that Banks had worked in the woods for Kent Piling Company sawing logs for ten days before he was injured; that he knew it because he rode with him on the labor truck every morning. It was also stipulated that John Fultz, Charles Dillon, Ike Downing and Willie Taylor would testify substantially the same as Chandler, Booty and Brumfield.

The defendant company offered Mr. T. W. Kent, its President, as a witness. When he attempted to testify as to the pay roll sheets filed in response to plaintiff’s request, an objection was made on the ground that such testimony was inadmissible unless he could testify as to his own personal knowledge or unless he prepared the records. He stated that the office manager made the records but that he saw them every day and they were under his control, whereupon his testimony was admitted. Counsel made further objection to the introduction of these records when they were offered at the end of the trial, however, the witnesses were examined and cross-examined with regard to these records without any reservation and, in addition, there is testimony independent of these records to prove the same thing shown by the records. In other words, the records show that plaintiff, Richard Banks, did not work for the Kent Piling Company, Inc., after April 19, 1952. This fact was also independently testified to by T. W. Kent and Charles Kent. T. W. Kent and his son, Charles Kent, both testified that the plaintiff laid off or quit after being paid on Saturday, April 19, 1952. T. W. Kent testified with regard to the main part of the transaction as follows:

“Q. Did the Kent Piling Company ever pay Richard Banks after his injury and in what capacity did the Kent Piling Company pay him? A. They never did pay him anything. They didn’t pay him anything for the Kent Piling Company, they paid him for the K & H Stock Farm.
“Q. Will you explain that? A. Well, the — when Banks got hurt he was working on the K & H Stock Farm and Mr. Charlie Kent, who is looking after it or has charge of it, he and Mr. Tom Hood got together and said they would go ahead and pay him the same wages until he got to where he could go back to work, they asked us to advance as usual, the same thing he was making until he was able to go back to work.
“Q. The Stock Farm has an account with the Kent Piling Company, is that correct? A. That’s correct, and they generally give us timber or calves. They have a stock farm and we take beef and handle it through the market and give them credit for it to pay the items we pay for them.
“Q. You paid those payments out of the K & H Stock Farm income ? A. Yes.
“Q. And paid it in checks to Richard Banks? A. Yes, in checks each two weeks.
“Q. It is your testimony that it was not in anyway connected with the Kent Piling Company payroll? A. Not in any way, shape or form.”
Ji<****♦
“Q. Then why was he paid — explain why he was paid by Kent Piling Company checks after his injury? A. I guess to — as we had been paying all of their payroll items. Kent Piling Company finances the operation. They write a note to the office, they reimburse us by the sale of these things from the farm, stock and cattle.
“Q. Then why was this amount paid out to Richard Banks after his injury? A. On their request. They figured he would need it to live on. He was going to the hospital and that he would need it to live on while taking these trips, they asked us to pay the $3.25 a day and we paid him every two weeks $39.00, six days a week. We gave him the check. I didn’t know at the time that they were going to pay him as long as they did, but they asked me to do that.
“Q. You paid him the full amount that had been paid him before he got injured? A. Yes, his wages went on.
“Q. At the instruction of K & H Stock Farm? A. Yes, the checks were charged to their account.”

T. W. Kent’s testimony is also corroborated by the record of payments of Social Security.

If this record is not correct it would have been a very simple matter for counsel to have checked it. Hood and Charles Kent both stated that they had no farm records other than the record of the orders that they would give their employees to the Kent Mercantile Company or the records of the Kent Piling Company showing what money had been paid for their account. Charles Kent also testified that the employees who testified for the plaintiff had worked on the farm property when they cut timber for Kent Piling Company, Inc., and also that on some Saturdays and Sundays he had as many as five or six working on the farm, and that on some days when there was no work to be done for Kent Piling Company some of the employees worked for the farm.

Charles Kent testified that the plaintiff had been working for the K & H Stock Farm for approximately three weeks prior to his injury and he had paid him every Saturday by a written order to the store, meaning the Kent Mercantile Store. In other words, he gave plaintiff an order for his wages which he would take to the Kent Mercantile Store and they would pay him in cash and charge it to the K & H Stock Farm. In corroboration of this testimony there was introduced a debit slip of the R. A. Kent Mercantile Co. Inc., dated June 7, 19S2 charging to the account of K & H Stock Farm for Richard Banks, $30, which shows an “O.K.” by Charles Kent. On June 14, 1952, we find another charge to the account of K & H Stock Farm by R. A. Kent Mercantile, Co. Inc., for Richard Banks, in the sum of $30, and one for Clarence McKay in the strm of $22, on which Richard Banks apparently made his mark and Clarence McKay signed. This debit account was given by phone by “Fanny Lou K.” who is the wife of Charles Kent. On June 23, 1952, or three days subsequent to the date of plaintiff’s accident, we find another debit account to the K & H Stock Farm made by R. A. Kent Mercantile Co. Inc. with the name “Richard Banks” in the amount of $20, and underneath that is the name “Ruth Lean Banks.” The testimony shows that the latter is the wife of Richard Banks who got his money after he was hurt.

It would appear that the District Judge was not manifestly erroneous when he found that Richard Banks was not employed by Kent Piling Company, Inc., on the date of the accident and injury, nor had he been so employed since April 19, 1952. It must be remembered that Banks testified that he was always paid by Kent Piling Company in the same manner, whether he worked on the farm or in the woods. The testimony of Charles Kent and these debit slips as well as the testimony of the manager of the R. A. Kent Mercantile Co. Inc., who identified the slips, flatly contradicts the payment of wages to Richard Banks from June 7, 1952 through June 20, 1952. also, the payment of June 7, 1952 was made for a week’s work prior to the pay day. As found by the District Judge and with which we find no manifest error, Richard Banks did not work for Kent Piling Company subsequent to April 19, 1952 and he was definitely, according to the testimony, employed by K & H Stock Farm beginning the first week in June and paid by the Stock Farm in the manner heretofore shown. Under these facts he was neither an employee of Kent Piling Company nor a “borrowed employee” as contended in the alternative by counsel for plaintiff. Whereas the record may not be entirely satisfactory as to why Kent Piling Co. paid the plaintiff $39 every two weeks subsequent to his accident and injury in that no account was offered showing a credit for timber and beef sold to Kent Piling Company and the Kent Mercantile Company, nor any account showing the charge to the Stock Farm of the $39 paid to the plaintiff every two weeks after his injury until June 14, 1953, it is also true that the explanation given by T. W. Kent and Charles R. Kent as well as their testimony on the subject is uncontradicted. While this record as presently made up apparently shows a serious injury and disability to the plaintiff, the latter has failed to prove that the defendant, Kent Piling Company, Inc., was his employer on the date of the accident and injury.

Counsel for plaintiff in his brief presents another argument based upon estoppel, viz.:

“There is one other argument plaintiff desires to urge. If this Honorable Court finds that in truth and in fact there had been a change of employment and that at the time of The accident plaintiff was the employee of the K & H Stock Farm and not of the defendant, it is respectfully, urged that because of the peculiar circumstances of this case, defendant is estopped from denying that it was the employer of the plaintiff in this suit.”
sfc :}« ^
“Plaintiff respectfully urges the Court to find that upon considering the case in the light, most favorable to the defendant, there must be judgment rendered herein in favor of plaintiff as prayed for and that defendant should be estopped from denying that it was the employer; because of its action it led petitioner to believe that there was no question but that it was his employer, and that it was reasonable for petitioner to assume under the circumstances that defendant was his employer, which in truth and in fact he did believe.”

There is no question but that the plaintiff was an employee of the defendant company for a number of years, that his name was carried on its payroll records, and according to a preponderance of the testimony of fellow employees as well as that of plaintiff himself, the defendant company’s employees, including plaintiff, had been used on the K & H Stock Farm project prior to the termination of plaintiff’s employment with the defendant company and his reemployment by the E & FI Stock Farm. Also, plaintiff was working under the supervision and instruction of Mr. Charles Kent, who was his boss while employed by the defendant company, and who was also a partner in the K & H Stock Farm, the other member of this partnership being T. J. Hood, a brother-in-law of Charles Kent and a son-in-law of the President of the defendant company,' and following the accident plaintiff was paid compensation in the amount of $39 every two’weeks by the defendant company under an arrangement or agreement, of which the plaintiff had no knowledge, between the defendant company and the K & H Stock Farm. The defendant company attempted to deny that these payments made each two weeks were compensation, however, the written debit slips of the Kent Mercantile Company offered on behalf of the defendant company show that the plaintiff was paid $30 per week under orders of Charles Kent on behalf of K & H Stock Farm and was receiving this amount at the date of his injury, and 65% of $30 would be $19.50 per' week or $39 every two weeks. There is some testimony on behalf of the defendant company that the $39 was wages at the rate of $3.25 per day for six days, but this testimony cannot be accepted in the face of the positive testimony introduced on behalf of the defend-aiit company that the plaintiff was receiving $30 per week from the K & H Stock' Farm, payable on the latter’s order by the Kent Mercantile Company. In other words, instead of the plaintiff making $3.-25 a day with the K & H Stock Farm he was being paid $5 per day for a six day week. In addition, there is no question but that this man was totally disabled during the time that he was being paid the $39 every two weeks and was performing no labor or services whatsoever for the defendant company or the K & H Stock Farm, and under the jurisprudence such payments would be considered as compensation.

Thus, under the facts in the case the actions of the defendant company might be construed as an equitable estoppel in the event the plaintiff has lost, his rights against the K & FI Stock Farm. One who by words or actions intentionally or carelessly induces another to do or admit an act to his detriment which he would not otherwise have done or admitted, is bound by the apparent state of facts which he held out. Marsh v. Smith, 5 Rob. 518; Brian v. Bonvillain, 111 La. 441, 35 So. 632; Bradford-Kennedy Co. v. Brown, 152 La. 29, 92 So. 723; E. C. Taylor Co. v. New York & Cuba Mail S. S. Co., 159 La. 381, 105 So. 379; United States Fidelity & Guaranty Co. v. Putfark, 180 La. 893, 158 So. 9; Swain v. Louisiana Light & Power Co., 13 La.App. 515, 128 So. 538; French Market Ice Mfg. Co. of New Orleans v. Dalton, 15 La.App. 115, 130 So. 122; Tyler v. Walt, 184 La. 659, 167 So. 182; State ex rel. Porterie v. Gulf, Mobile & N. R. Co., 191 La. 163, 184 So. 711; Brock v. Black, Rogers & Co., 201 La. 1017, 10 So.2d 790; Taylor v. Turner, La.App., 45 So.2d 107.

While it is true that ordinarily es-toppel must be specially pleaded before it can be considered, it is well settled that a plaintiff does not have to plead estoppel where the defendant’s contention was first raised in their answer. Our . Supreme Court in Sanders De Hart v. Continental Land & Fur Co., 205 La. 569, 17 So.2d 827, 833, in considering an estoppel as applicable to the defendants stated:

“The defendants cannot now change their position to the detriment of the other DeHart heirs by claiming the other DeHart heirs have not accepted the successions. They are now es-topped from advancing this contention. Estoppel was not pleaded by the plain-tiffs, but there was no need for the plaintiffs to interpose such a plea for the reason that the defendants’ contention was first raised in their answer. The answer of the defendants was open to every objection of law or fact as if specially pleaded, as replication is not allowed under our law. Keystone Life Ins. Co. of Louisville v. Von Schlemmer, 122 La. 280, 47 So. 606; City of Shreveport v. Chatwin, 139 La. 531, 71 So. 791; Town of Thibodaux v. Stark, 142 La. 375, 76 So. 806.”

Also see Hartsfield v. Green, La.App., 62 So.2d 180.

Thus, in the present case it was not necessary for plaintiff to plead estoppel as-the defendant’s contention (that no employer-employee relationship existed) was first raised in its answer and the latter was open to every objection of law or fact, meaning that the defendant’s answer in this case was open to a plea of equitable estoppel without the necessity of having specially pleaded same.

As above stated, if the plaintiff has been deprived of his right of action against the K & H Stock Farm under the special facts in this case, his objection to a dismissal of the suit against the defendant company on the ground that the latter is equitably estopped might be valid. We can not express an' opinion as the K & H Stock Farm is not a party to this suit. Presumably, 'had or should the K & H Stock Farm been sued, the members of same would plead prescription which would be governed by the principles enunciated in Callender v. Marks, 185 La. 948, 171 So. 86; Harris v. Traders & General Ins. Co., 200 La. 445, 8 So.2d 289; Jackson v. American Employers Ins. Co., 202 La. 23, 11 So.2d 225; Lunkin v. Triangle Farms, 208 La. 538, 23 So.2d 209; Davis v. Lewis & Lewis, 226 La. 1059, 78 So.2d 173.

Were: this not a compensation suit, a failure to have sought1 relief in the alternative against the K & H Stock Farm would result in a dismissal with prejudice of plaintiff’s suit, however, as this is a compensation suit and there is no question of the plaintiff’s accident, injury and disability (although we expressly reserve opinion as to their extent and duration) it is clear that if plaintiff is entitled to recover additional compensation it must come from his true employer, K & H Stock .Farm, unless the latter have been relieved of liability by virtue of prescription flowing directly from plaintiff’s having filed suit against the defendant company instead of the K & H Stock Farm, in which event plaintiff’s contention that the defendant company is equitably estopped from denying the relationship of employer-employee would and should be decided.

The next question that arises is wheth-er this Court should dismiss the plaintiff’s suit without prejudice to its plea of equitable estoppel' in the event his rights have been lost against the K & H Stock Farm by virtue of prescription directly the re-suit of having’ filed suit against the defendant company by virtue of the special facts which plaintiff claims led him to believe that the defendant company was his employer rather than the K & H Stock Farm, as a result of which suit was filed against the defendant company, or whether judgment should be rendered ordering the case remanded to the District Court for the purpose of making as parties to this suit in the alternative the K & H Stock Farm partnership composed of Charles Kent and T. J. Hood, in order that the plaintiff in this compensation suit might not be deprived of his rights under the law governing the theory of equitable estoppel advanced by his counsel and which cannot be decided unless and until this court can decide that the K & H Stock Farm is relieved of liability by virtue of plaintiff having been misled by the acts of the defendant company into believing the latter was his real employer. If the K & H Stock farm can still be held to respond to a suit by plaintiff and judgment could be rendered against the K & H Stock Farm should the facts justify it, then plaintiff could not obtain a judgment against the defendant company upon the theory of equitable estop-pel. In view of the fact that this is a compensation suit in which the court shall not be bound by technical rules of evidence or procedure, LSA-R.S. 23:1317; Wallace v. Remington Rand, La., 86 So.2d 522, we have decided to remand the case to the District Court for the purpose of alternatively making parties to this suit the members of the partnership composing the K & H Stock Farm, rather than to dismiss plaintiff’s suit without prejudice to his plea of equitable estoppel.

It is therefore ordered, adjudged and decreed that this case be remanded to the District Court and that within thirty days from the finality of this judgment the plaintiff alternatively institute suit and make parties thereto the partnership known as K & H Stock Farm, and it is further ordered that plaintiff’s rights under the plea of equitable estoppel as against the defendant company be reserved and to await the outcome of his suit against the K & H Stock Farm. It is further ordered, adjudged and decreed that upon plaintiff’s failure to file suit within thirty days from the finality of this decree his suit against the defendant company herein is to be dismissed at his cost.


text:
    Wanda Lee RABORN, Plaintiff-Appellant, v. J. Hadley HEARD, Administrator of the Division of Employment Security, Department of Labor, State of Louisiana.
    No. 4153.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Rolfe H. McCollister, Ralph Brewer, Baton Rouge, for appellant.
    Lewis D. Dunbar, Baton Rouge, for ap-pellee.
   TATE, Judge.

This suit is for judicial review of an administrative agency’s denial of unemployment compensation. Plaintiff appeals from district court judgment affirming such denial by the Board of Review, Division of Employment Security.

Defendant agency determined that claimant was not “available for work”, which is a statutory requirement to entitle an unemployed worker to receive unemployment compensation, LSA-R.S. 23:1600. The claimant disputes this determination.

Petitioner-claimant seeks judicial review of the findings of the Board of Review of defendant agency under LSA-R.S. 23:1634, which provides pertinently in part:

“ * * * In any proceeding under this Section the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court,

Thus “the court therefore is only concerned with the question whether or not the finding of fact of the Board of Review is supported by evidence, which we take to mean legal, competent and sufficient proof”, Richardson v. Administrator, Division of Unemployment Security, La.App. 1 Cir., 28 So.2d 88, at page 90 (affirming a Board of Review’s refusal to allow unemployment compensation upheld by the District Court). See also Stroy v. Heard, La.App., 85 So.2d 275.

Generally, “the jurisdiction of the reviewing court is limited to questions of law. The findings of the administrative body are ordinarily conclusive on the courts if. supported by substantial evidence. But the courts will not sustain a determination where the decision is supported by no substantial evidence and to sustain it will ignore the plain provisions of the act. So also, a question of law is presented for review if the administrative tribunal misapplied the law to the facts as found by it,” 48 Am.Jur. 547-8, Verbo “Social Security, Unemployment Insurance, and Retirement Funds”, Section 49, “Judicial Review— Scope and Extent of Review.”

We have reached the conclusion that there is no evidence in the record that the claimant was not “available for work” within the meaning of the Louisiana Compensation Law, LSA-R.S. 23:1471 et seq.

The facts are stipulated.

Claimant became unemployed on October 26, 1954, having previously worked for the Mclnnis & Gray Blind Company of Baton Rouge. She filed her claim for unemployment compensation and drew eight weekly benefits, or $160 in all, through the compen-sable week ending January 2, 1955. On January 10, 1955, the administrator discontinued her unemployment compensation for the alleged reason: “You have not shown that you are available for work by making a reasonable effort to find employment.”

This action was apparently based upon the claimant’s statement on January 10, 1955, that, “Since I filed my claim (11-9-54) I have contacted my former employer, Mc-lnnis & Gray Blind Company. No openings. Hebert Blind Company in Port Allen. They said I may be called in March or April. I have made no other contacts. I’ve never done any other kind of work.” On January 13, 1955, claimant appealed alleging: “I feel I have made a reasonable effort to try to find work. This is the slow season.”

The Administrator’s finding thus was that the claimant was no longer entitled to unemployment compensation as lacking this statutory qualification: “He is able to work, and is available for work”, LSA-R.S. 23 :- 1600(3). (Italics ours.)

Plowever, the sections of the unemployment act should be construed together in arriving at the legislative intent within the framework of the language used, Canada Dry Bottling Co. of Utah v. Board of Review, etc., Utah, 223 P.2d 586, 22 A.L.R. 2d 664.

This statutory provision must be read in conjunction with LSA-R.S. 23:1601, “Disqualification for benefits”, which provides in part that “An individual shall be disqualified for benefits:

* * * (3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, * * *.
“(a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, Ms experience and prior earnings, Ms length of unemployment and prospects for securing local work in Ms customary occupation, and the distance of the available work from his residence. .* * * ” (Italics ours.)

Thus a claimant is “available for work” within the meaning of the statutory-enactment if he restricts his availability to-“suitable " work” as defined by-the statute. See 4 Words & Phrases (1956 Pocket Part) 177, Verbo “Available for work” ; Annotation, “Circumstances of leaving employment, availability for work, or nature of excuse for refusing re-employment, as affecting right to social security or unemployment compensation,” 158 A.L.R. 396, supplemented by Annotation, 165 A.L.R. 1382, which is supplemented in part "by Annotations at 13 A.L.R.2d 874 and 14 A.L.R.2d 1308. See Annotation, “Seasonal employees as entitled to unemployment compensation,” 24 A.L.R.2d 1400. Of course, for purposes of drawing -unemployment compensation employees cannot arbitrarily remove themselves from availability for work by restricting their willingness to work to certain' hours, types of work, or conditions, not usual or customary in the occupation, trade, or industry, Unemployment Compensation Commission v. Tomko, 192 Va. 463, 65 S.E. 2d 524, 25 A.L.R.2d 1071, annotated as to subject, 25 A.L.R.2d 1077.

The Administrator introduced no evidence whatsoever that claimant was not available for suitable work, within the meaning of the statute. On the contrary, the record shows that claimant sought employment with the blind companies in the Baton Rouge area, for which work she was suited by “prior training” and which was her “customary occupation.” It .was a slow season, and she was then unable to obtain such suitable employment, although she had prospects to be recalled to work in a month or so. (We are informed in brief of counsel that shortly after suit was filed in March, 1955, she was re-employed by Mc-Innis & Gray Blind Company; which stipulation does not seem to have been included in the record.) The claimant is thus entitled to receive unemployment compensation for each week following January 2, 1955, terminating with her re-employment, within the statutory limits, as we find that she was available for work.

As was stated recently by Judge Hardy for the Second Circuit in Walsworth v. Heard, La.App., 84 So.2d 254, at page 256: “A court, under these proceedings for judicial review, is with out, authority to pronounce a money judgment and is limited to the pronouncement of a judgment ordering the Board of Review to grant relief in accordance with the terms of such mandate 'as the court might decree.” (See LSA-R.S. 23:1634: “* * * Upon the final termination of a judicial proceeding, the board of review shall enter an order in accordance with the mandate of the court.” ) Apparently attorney’s fees for representing the claimant must be fixed by the Administrator rather than the court, see LSA-R.S. 23:1692.

For the reasons assigned, the judgment appealed from is annulled and set aside, and the case is remanded to the Board of Review, Division of Employment Security, Department of Labor, State of Louisiana, for further proceedings in accordance with our decision herein.

Reversed and remanded.


author: LOTTINGER, Judge.

text:
    Isaac DES ORMEAUX v. L. P. DUFOUR.
    No. 4206.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Mestayer & Mestayer, New Iberia, for appellant.
    Mouton, Champagne & Colomb, Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellee.
   LOTTINGER, Judge.

This is a suit instituted by Isaac Des Ormeaux against L. P. Dufour for damages for the alleged conversion by the latter of two cows sold by him to the plaintiff. The petition alleges that on or about the last day of June, 1950, the parties entered into an agreement whereby the plaintiff bought from the defendant fifty head of cattle, which were composed of twenty-five head of Holstein cows and twenty-five head of Jersey cows. The allegation is made that at about the same time, the defendant delivered the cattle, which were accepted by petitioner, but that on or about the first day of July, the defendant unlawfully removed two of the Holstein cows and replaced same with two inferior Jersey cows. The petition then goes on to allege that the petitioner protested this switch and that as a result thereof, the defendant agreed to bring two Holstein cows which would be acceptable to petitioner in the month of October. Various allegations are made regarding the damages sustained by petitioner as the result of the loss of the cattle, the loss of milk which they would have produced and the loss of calves to be born to them and the petition concludes with a prayer for damages in the sum of $2,100.

The defendant first filed exceptions of no right or cause of action and vagueness. The former were overruled and an amended petition was filed in response to the latter. Subsequently, the defendant answered admitting the sale of fifty head of cattle to petitioner but generally denying the remaining articles of the petition. The affirmative allegation is made that the petitioner accepted and purchased twenty-three head of Holstein and twenty-seven head of Jersey rather than twenty-five head of each as alleged in his petition. It is alleged in the answer, however, that subsequent to the sale, and during the early part of July, 1950, the parties entered into a verbal agreement whereby the petitioner was to give to the defendant two Jersey cattle in exchange for two Holstein cattle which exchange was to be consummated in the month of October of that year. The defendant averred that he had tendered the Holsteins and was at all times willing to comply with the terms of the agreement; that he was prevented from so doing by the refusal of the plaintiff to comply with same. Alternatively, it is set forth that as a result of the failure of the plaintiff to comply with the exchange contract, the defendant lost the value of two calves which were born to the two Jersey cows, milk which was produced by them as well as certain sums for mental anguish, annoyance, etc. The prayer of the reconventional demand is for damages in the sum of $2,320.

The matter was duly tried on the merits in the court below following which judgment was rendered rejecting each party’s demands against the other and ordering that plaintiff pay all costs of the proceedings. Subsequently, the plaintiff appealed to the Supreme Court, which found that the plaintiff’s claims were inflated, and, having no jurisdiction, transferred the appeal to us. See Ormeaux v. Dufour, 229 La. 287, 85 So.2d 518.

Counsel for the plaintiff first called the defendant on cross-examination and the latter testified that the agreement to sell the cattle was made during the latter part of May, 1950. At that time the defendant’s herd was located on property belonging to a Dr. Comeaux, which was under lease to the defendant and at the time of trial, was under lease to the plaintiff. This witness testified that the agreement was made whereby he was to sell to the plaintiff twenty-five head of Holstein cattle and twenty-five head of Jersey cattle for an average price of $240 per head or a total of $12,000. He stated that while the particular cattle involved in the sale were not pointed out, it was understood that twenty-five head of each breed were to be delivered and that he in fact received a check in the amount of $12,000 in payment for the cattle. According to the defendant, he had 100 head of cattle on the place, 'which consisted of seventy-three head of Jersey cows and heifers and twenty-five head of Holstein cows and two head of Holstein heifers. He stated that he delivered to the plaintiff only twenty-three Holsteins, the reason therefor being that the two cows had been removed from the premises by mistake.

He stated that he so informed the plaintiff on June 28th and agreed to return the two Holsteins in exchange for the two Jerseys in the month of November, 1950, and, while he admitted that he had never delivered the cattle, he stated that he was still willing to’ abide by the agreement.

On direct examination, the defendant reiterated that the agreement had been made to interchange the Jerseys for the Holsteins and stated further that a Mr. Mor-vant had offered to go and get the Holsteins for the plaintiff. He further stated that he offered to show the cows to the plaintiff but that the latter refused to view same and likewise refused to keep an appointment at an attorney’s office during the month of November relative to clarifying the matter. He reiterated that the Holsteins were removed by mistake and that he was never successful in carrying out the exchange agreement because of the failure of the plaintiff to come to his place and pick out the Holsteins that he wanted. On cross-examination, he recited further that he had both Holstein cows and heifers and that plaintiff could have had his choice. The cross-examination was concluded by the defendant stating that he had never returned the Holsteins to the plaintiff nor had he ever sent for the Jerseys which belonged to him.

The plaintiff testified that he knew that the two Holsteins were taken out of the herd leaving only twenty-three of that breed and that while the defendant did offer him two Holsteins subsequently, the offer was only of two little Holsteins rather than the two large ones which he had taken. This offer, he stated, was made not only at that time, but once or twice afterwards. On cross-examination, the plaintiff testified that the two Jerseys which defendant had left had died, one of them during the year 1951 and the other one later. Plaintiff further stated that he did not feed the two Jersey cows left with him. He testified that while the defendant offered him two “little bitty” Holsteins, which were not worth the Jerseys which had been left with him, he never saw them nor attempted to see them. He stated further that he did not deliver to the defendant the Jerseys and that the defendant did not deliver to him the Holsteins.

Mr. Willis Morvant, a representative -of the Opelousas Production Credit Association, testified on behalf of the plaintiff. It appears that this gentleman had inspected the' cattle which were the subject of the sale, had approved the application of the plaintiff for a loan and disbursed the funds. He testified that the sale was to be of twenty-five head of each breed, as set out previously, and that the defendant actually pointed out to him the fifty cows which-were to be the basis of the sale. Accord-' ingly, a check from his company was issued in the amount of $12,000, payable to both' plaintiff and defendant. What happened subsequently was explained by this witness as follows:

“Q. Was that check endorsed and payment received and by whom? A. Mr. Des Ormeaux to Mr. Dufour.
"Qj‘ As full payment of the contract for 25 head of Holstein and 25 head of Jerseys ? ■ A. Yes, sir. ■
“Q. What happened just about the time the check was cashed? A. Well, I think it was around the end of.the month; I can’t tell you exactly what date it was, Mr. Des Ormeaux and Mr. Dufour came to my house. I live, in the country. Then, they had the check, Mr. D.cs Ormeaux had the check, and I -think they had Mr. — Mr.¡Des Ormeaux said they had two Holsteins that wasn’t there, had 23 Holsteins, wanted to return the check to Mr. Dufour, I understand. He asked me what I thought about it iso I told him the loan was made for 25 Holstein and 25 Jerseys, so . Mr. Dufour- said the other two Holsteins were — I think they were taken from Mr. Des Ormeaux’s dairy and brought to Pineyland, but I think they were taken by mistake; I think they had — if I am not mistaken — taken them, taken by some colored man. Mr. . Dufour had more cows than'that, taken the cows out and leaving Mr. Dufour’s they took two and Mr. Des Ormeaux couldn’t release the check until the cows were all there.
' “Q. Did Mr. Des Ormeaux release the check by endorsing his name and under what conditions ? A. Under the ’ condition that the two Holsteins were at Pineyland and they would be returned.
“Q. Was your company interested in the return of those two Holsteins for the completion of that contract? A: Naturally I took it upon myself to accept that. ■
“Q. Was that understanding made before you? A. Yes, sir.
“Q. By Mr. Dufour? A. Yes, sir.
“Q. That the two Holsteins that ■ had been taken from the herd would be returned? A. Yes, sir.”

At first this witness testified that- no agreement was made relative to the Jerseys which had been left in the plaintiff’s pasture. Subsequently, however, he testified that the defendant told the plaintiff to go ahead and use the Jerseys, if he cared to, and while they-were not to take the place of the Holsteins,- he did not know whether the plaintiff accepted the defendant’s offer or whether the plaintiff offered to return, the Jerseys to the defendant.

From the above and.'foregoing,, we think it clear that while the'original sale-contemplated the delivery of 25 head of' Holsteins and 25 head of Jerseys, that the delivery of 23 and 27 head, respectively, was made through an honest mistake. We think further that subsequent to the-discovery of this mistake by the parties, an agreement was made whereby the mistake was to¡ be corrected by the substitution of two Holsteins for the two extra Jerseys left upon the place, this exchange to take place some time during the fall, either in the month of October or during the month of November. Just why this exchange agreement was never carried out is not clear. According to the plaintiff, the defendant would only deliver heifers, rather than cows, °and, according to the defendant, the plaintiff cóuld have had his choice and refused to ever inspect the cattle. Whatever may have been the reason for the failure of the parties to carry out the agreement, we are of the opinion that the plaintiff acted arbitrarily in refusing to inspect the proffered cattle; likewise, we might add, that the agreement may have well come to fruition had more cooperation been exhibited on the part of the defendant. The matter, as we see it, merely presents a case of two hard-headed business men, neither of whom would give in to the slightest extent and both of whom were principally content to rest upon what they considered their legal rights. Their proposed agreement was not fulfilled due to the lack of cooperation on the part of both and we think the trial judge wisely left them in the position in which they had placed themselves.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.