text:
    230 La. 221
    Joseph D. BREAUX v. Martin L. LAIRD, Jr., et al.
    No. 42149.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Gravel & Downs, Alexandria, Clint L. Pierson, John L. Avant, Watson, Blanche, Fridge, Wilson, Posner & Thibaut, Baton Rouge, for defendants-appellants.
    Jimmie R. Major, Baton Rouge, for Baton Rouge Tin Shop, Henry C. Viccinelli, Henry V. Viccinelli and Albert J. Hebert, partners, called in warranty by Mid-states Const. Co.
    J. Burton LeBlanc, Jr., Ashton L. Stewart, Baton Rouge, for plaintiffs-appellees.
    Harry J. Korn, Jr., Baton Rouge, for consolidated Roofing Co. called in warranty.
   SIMON, Justice.

Plaintiff instituted this suit against the defendants, Belfair Homes, Inc., Mid-States Construction Company, its partners, Martin L. Laird, Jr., and Thomas O. Wells, and its insurer, American Motorists Insurance Company, for damages, in solido, on alleged noncompliance with building plans and specifications and resultant defects in the construction of a dwelling purchased by him from Belfair Homes, Inc.

By supplemental and amended petition plaintiff itemized the defects and noncompliance with the plans and specifications alleged. Exceptions of no cause or right of action were filed by all defendants, which were overruled insofar as Belfair Homes, Inc., and Mid-States Construction Company were concerned, but sustained as to American Motorists Insurance Company. On appeal we reversed the trial court’s ruling and remanded the case to the district court for hearing on its merits as against all defendants. Whereupon, plaintiff having filed a second supplemental petition against Bel-fair and Mid-States, filed a similar pleading against American Motorists Insurance Company, both pleadings adding two complaints, paragraph 40 (A), subparagraphs (d) and (j), which on objections filed by defendant were stricken from the record.

Upon trial on the merits the district court rendered judgment in favor of plaintiffs and against all defendants, in solido, in the sum of $1,485, together with legal interest from date of judicial demand until paid; and in favor of Mid-States Construction Company on its call in warranty against Baton Rouge Tin Shop, an ordinary partnership composed of Albert J. Hebert, Henry V. Viccinelli and Henry C. Viccinelli, in the sum of $230.

Defendants and warrantor have appealed from said judgment; and plaintiff has answered said appeal praying that the lower court’s judgment be amended by increasing the amount awarded to him from $1,485 to $5,931.50, and further that the judgment be reversed insofar as his claims set forth in paragraph 40 (A), subparagraphs (d) and (j) of his second supplemental and amended petition were stricken, and that the cause be remanded for trial of the claims presented therein.

Defendants-appellants have filed a motion to strike said answer, contending that the appeal lodged in this court is only from the final judgment rendered against them and that no appeal has been taken from the judgment of the district court striking the said subparagraphs from plaintiif’s second supplemental and amended petition, and that, therefore, plaintiff’s prayer for a reversal of the judgment striking said subparagraphs should be dismissed, relying on the case of Howard v. Toye Bros. Yellow Cab Co., 226 La. 346, 76 So.2d 391.

In the Howard case the suit against defendant Ernest Guillory, relator therein, was dismissed on an exception of no right or cause of action. After a trial on the merits judgment was rendered in favor of the plaintiff and against Mrs. Shirley Guillory in the amount sued for, and the other defendants were absolved from liability. Plaintiff and defendant Mrs. Shirley Guil-lory obtained separate orders of appeal to the Orleans Parish Court of Appeal, which court in due time reversed the judgment of the lower court only insofar as it had dismissed plaintiff’s suit as against exceptor, Ernest Guillory, and condemned him in solido with Mrs. Shirley Guillory. On review before us, we concluded that, no appeal having been taken from that part of the judgment dismissing plaintiff’s suit as against Ernest Guillory on exception of no cause or right of action, the Court of Appeal was in error in reviewing same. We held that an appellate court will not review a judgment sustaining exceptions thereby dismissing part of the demand when the appeal is taken by the defendant merely from the judgment rendered on the merits, citing Stansel v. Roberts, 35 La.Ann. 885.

The principles announced in the Howard and Stansel cases, supra, are sound law. The basis for the principle announced in the Stansel case was that the plaintiff-appellee had simply prayed for the affirmance of the judgment rendered below.

In the case at bar the defendants appealed, from the judgment rendered by the trial court on the merits, and plaintiff has answered this appeal and seeks more than an affirmance of the judgment appealed from. He prays that the said judgment be amended by increasing the amount awarded to him to the amount originally prayed for; and further, that it be reversed insofar as his claims set forth in his second supplemental and amended petition were stricken and that the cause be remanded for hearing on said claims presented therein.

The record discloses that the two items ordered stricken were; (1) plaintiff’s claim for an air conditioning system called for in the plans and specifications; and (2) the complaint of installation of screen doors of an inferior quality to those specified in the plans and specifications. Having stricken said allegations, the trial court refused to permit proof thereof at the trial on the merits.

It is well settled in our jurisprudence that amendments to pleadings should be permitted where they tend to further justice, cause no injury and are without prejudice to the right of the other party. Should the other party plead surprise, he may obtain time to prepare adequate defense. Our modern-day tendency is to relax the technical rules of pleading in order to arrive at the truth, afford a litigant his day in court and avoid a miscarriage of justice. This court has consistently recognized the right of the plaintiff to amend his petition with the leave of court, after issue joined, provided the amendment did not assert a demand different from the relief first sought or change the substance of the demand. Code of Practice Article 419; Coleman v. Continental Bank & Trust Co., 139 La. 1078, 72 So. 742; Ruiz v. American Trading Co. of New Orleans, 167 La. 28, 118 So. 597; Seale v. Stephens, 210 La. 1068, 29 So.2d 65; Messersmith v. Messersmith, La., 86 So.2d 169.

The trial court correctly permitted plaintiff to file the supplemental petition. However, we feel it committed error in striking from the pleadings, upon objection by the defendants, the two items set forth in paragraph 40 (A), subparagraphs (d) and (j) of the supplemental petition.

Defendants contend that the second supplemental and amended petition filed herein changes the issue, injecting new and different matters. We are constrained to hold that the nature of the demand has not been changed from that originally asserted, either in substance or in law. The original demand is for damages, having as its cause of action the noncompliance with building plans and specifications as originally alleged. The defects alleged in the two subpara-graphs are merely complaints which are incidents of and not inconsistent with or exclusive of the cause of action originally asserted. Though the ultimate moneyed demand has been increased, the cause of action and the very substance and nature thereof which give rise to this litigation has not been changed. This second supplemental petition was filed prior to a hearing on the merits, and in view of our modern-day tendency to relax the rules of pleading we find no possible prejudice occasioned these defendants in that respect.

Defendants also contend that the deviations and defects alleged in the said paragraph 40 (A), subparagraphs (d) and (j), are of such a nature as plaintiff would have had knowledge thereof at the time of filing his first supplemental and amended petition, under court order, and that his failure to have included them therein constitutes a waiver and abandonment thereof. This contention was also raised by defendants before the lower court in their motion to strike.

Though there are various definitions of the term “waiver”, it can be comprehensively defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed. It is recognized that the terms “waiver” and “estoppel in pais” are closely related, the line of demarcation between them being slight, both partaking of the same elements and essentially the same relief.

The doctrine of waiver or estoppel contravenes the legal rights of the person sought to be estopped, and in some instances stays the operation of the usual proceedings in the adjustment of rights of individuals and for that reason should, in every instance, be applied with great care and caution. Our courts and other jurisdictions universally hold that this doctrine should be applied only in exceptional cases where its application is necessary to effectuate justice or prevent injustice, and should not be applied where it will serve as an instrument of, or operate as, a fraud, be against good conscience, work injustice or accomplish a wrong. Gonsoulin v. Equitable Life Assurance Society of the United States, 152 La. 865, 94 So. 424; C.J. Sec., Vol. 31, p. 242 et seq.; 42 C.J.S. p. 380.

The promotion and enforcement of fair dealing and the prevention of undue advantage are equally involved in the application of the equitable doctrine of waiver or estoppel, and pleas of this doctrine can be of no avail to the party urging same unless he has been clearly misled to his detriment or injury by the actions or conduct of the party against whom the plea is urged. In re Clover Ridge Planting & Mfg. Co., Inc., 178 La. 302, 151 So. 212.

In the case at bar the record fails to disclose any act or conduct on the part of the plaintiff which would warrant the application of this doctrine as urged by defendants.

Defendants also contend that the judgment of the lower court striking from the record said two subparagraphs of the second supplemental and amended petition was not appealed from by plaintiffs and is therefore not reviewable by this court.

In the case of Three Way Finance Co. v. McDonald, 213 La. 504, 35 So.2d 31, we announced that the rule that an appeal is not allowed from an interlocutory decree unless it is one which may cause irreparable injury is based on the fact that the law does not favor the interrupting of judicial proceedings by appealing from such decrees. Code of Practice Article 566. Also, see Feitel v. Feitel, 169 La. 384, 125 So. 280; Painten v. Pilie, 198 La. 713, 4 So.2d 804; Reeves v. Barbe, 200 La. 1073, 9 So.2d 426; In re Canal Bank & Trust Co., 216 La. 410, 43 So.2d 777; Succession of Willis v. Willis, 229 La. 293, 85 So.2d 520.

In the instant case the judgment striking the two subparagraphs was and is an interlocutory judgment which the record shows caused no irreparable injury to plaintiff and therefore was not appealable.

Our law provides that where an appeal has been duly returned the appellee must appear within the delay prescribed and file his answer seeking an affirmance of the judgment of the inferior court, Code of Practice Article 591, but that “Nevertheless, if the appellee complain of some parts of the judgment of the inferior court, he may, without appealing from the same, pray it to be set aside in those points in which he believes that he is aggrieved.” Code of Practice Article 592.

In the case of Lange v. Baranco, 32 La. Ann. 697, at page 699, in answer to plaintiff’s objection to the trial of the case in this court as regards the reconventional demand, on the ground that the defendant did not appeal from the judgment dismissing that demand, we said:

“It was unnecessary that she should do so. A judgment is the solemn adjudication of a court, established by law, made in a suit upon the relative claims of parties thereto, as disclosed by the record, and which passes on the matters so presented for determination. When it decides the issues submitted, it is an entirety, and, strictly, is indivisible; not so, however, as to compel a party who is only partly benefited to appeal from the judgment in his behalf. It may be rendered partly in favor of or against a litigant, and partly in favor of or against others. The party who appeals, whoever he be, theoretically brings up the entire judgment for revision to the appellate court; absolutely, as far as it aggrieves him, and conditionally as it affects others who are the appellees, and who can ask that the judgment, as to them, be re-examined and reformed. The Code of Practice, art. 888, recognizes undoubtedly this theory, by permitting expressly the appellee, in his answer, when seasonably filed, to ask a reversal in part and a confirmation in part, as he may choose to do.

“The whole judgment is therefore before us for review.” (Italics ours.)

In Alengi v. Hartford Accident & Indemnity Co., 183 La. 847, 165 So. 8, 10, we said:

“ * * * It is difficult to understand how the appellant, by limiting his appeal, can deprive the appellee of the rights, granted him by articles 592 and 888 of the Code of Practice, to have the judgment reviewed in the respects complained of in the answer to the appeal, without appealing. A mere reading of those two articles clearly shows that it was never contemplated that the appel-lee’s right to have the judgment reviewed, by answering the appeal, could be taken away from him by the appellant appealing only for an express and specific, or limited purpose.”

Accordingly, in view of the foregoing, we shall review the entire record.

The record discloses that by a recorded written contract dated November 22, 1946, and bonded by defendant American Motorists Insurance Company, Mid-States Construction Company agreed to construct for Belfair Homes, Inc., 53 reinforced concrete type dwelling units in accord with plans and specifications prepared by Carl Kellogg, architect.

On December 2, 1946, Belfair agreed to sell Lot No. 95, with improvements thereon, to plaintiff, and accordingly undertook to have a dwelling constructed thereon in accord with the said plans and specifica-tións referred to in said agreement as No. 155 P, Elevation Q, prepared by Carl Kellogg, and exhibited to plaintiff. In consideration of the payment of $8,500 cash, Belfair sold and transferred said lot and improvements thereon to plaintiff by a duly recorded authentic act of sale dated December 3, 1947.

Plaintiff began occupancy of said home in October, 1947, prior to its completion, with the understanding that its construction would be completed by the vendor. At the time of the sale, December 3, 1947, plaintiff was again assured that the construction work would be completed.

On August 10, 1949, plaintiff filed suit against his vendor, the vendor’s contractor and the contractor’s surety for damages, alleging noncompliance with and deviations from plans and specifications in the construction of the premises purchased by him.

Defendants strenuously denied liability, contending that the plans and specifications submitted and considered by the court in the light of plaintiff’s complaint were not the ones used in the construction of plaintiff’s dwelling, but that original drawings of said plans had been changed and amended by oral mutual consent of the owner and the contractor (Belfair and Mid-States), and, further, that the house purchased by the plaintiff from Belfair Homes, Inc., was constructed in substantial compliance with the contract and the plans and specifications as so changed and amended. Defendants have failed, however, to procure and produce the plans and specifications they allege to have been used, despite orders of subpoenas duces tecum against them to produce same. Every effort and means available by judicial process was exerted by plaintiff to force defendants to produce the specifications in their possession or in the possession of their agents, without avail. We note with regret the comment of the trial judge during the course of the trial that “The court gets a very definite impression that the defendants in this case could produce plans and specifications, * * * and they have been called upon to do so, and it is just not the cooperation that I have been taught to believe should exist in the trial of lawsuits.”

The best evidence rule requires that the highest degree of proof of which a case from its nature is susceptible must, if accessible, be produced. If the best evidence cannot be produced, then secondary evidence becomes admissible. The primary evidence of the plans and specifications as changed and amended, as alleged by defendant, in the instant case was not accessible; therefore the secondary evidence rule became applicable. Moreover, the primary evidence was or should have been in defendants’ possession, and their failure to produce it was the occasion and created a necessity for resorting to secondary evidence. Under such circumstances defendant cannot be heard to complain of the character of such evidence, the quality and weight of which rests with the trial judge. Merritt v. Wright, Williams & Co., 19 La. Ann. 91; Hotard v. Texas & Pacific Ry. Co., 36 La. Ann. 450; Franklin v. First African Baptist Church, 2 La.App. 698.

Plaintiff produced and offered in evidence the plans and specifications in his possession as well as in the possession of others considered to be pertinent to the issues in the case, and he was under no duty to produce the records of which the defendants were, or should have been, the custodians. Thus the trial court correctly received in evidence the plans and specifications tendered by plaintiff as copies of those referred to in the construction contract between Belfair and Mid-States.

Defendants also contend that there had been an acceptance of the building contract by Belfair, and therefore all rights to recover for failure of the contractor to perform according to the terms of the contract had been waived. They contend that plaintiff’s house was constructed under the personal direction of Belfair Homes, Inc., supervised by the Federal Housing Administration, both of whom had approved and accepted the work prior to the sale to plaintiff ; that, therefore, should any part of it have been defective either in workmanship or materials, or should there have been any substantial deviation from the building contract, plans and specifications, Belfair, as owner, had or should have had full knowledge thereof at the time of its acceptance of the work. The building contract between Belfair and Mid-States was accepted in writing by Belfair on August 11, 1948, and recorded, whereas, Belfair had by act of sale on December 2, 1947, transferred its right, title and interest in and to said property to plaintiff and was, therefore, not owner of said property to make effective any purported acceptance on that date. We are not impressed with defendants’ contention that there had been an oral acceptance prior to the sale to plaintiff.

Defendants’ contention that by taking possession and moving into the house plaintiff thereby accepted the building contract and waived all rights to institute this suit is equally without merit.

The record discloses that plaintiff sold a home in which he had been living and surrendered possession thereof to the purchaser. He and his wife resided with relatives awaiting the completion of the dwelling herein involved. They began occupancy thereof prior to its completion to supply their urgent need for a home and for the further reason that the payment of the purchase price would afford defendant with the means with which to complete the construction. Under the circumstances it cannot be said that plaintiff voluntarily and intentionally waived or abandoned his known existing legal rights, benefits or claims. In fact, it was agreed that the vendor would complete the construction of the home. Plaintiff had no knowledge of the extent of the inferiority of the material and workmanship as complained of herein. He did not accept such inferior work by mere occupancy under the circumstances stated. The very essence of waiver which can result only from the intentional relinquishment of a known right is not present.

The case of Michel v. Efferson, 223 La. 136, 65 So.2d 115, 119, involved a suit to recover from a building contractor and his bondsmen the amount required to remedy faulty construction. The defendants therein contended that the plaintiff had waived whatever claims she had for the defective construction at the time she accepted the building. On rehearing we held that plaintiff was entitled to recover, saying:

“It appears that the plaintiff observed some defects in the construction of the building a few days before she accepted it and that a meeting was held at her instance with the contractor and his bondsmen, wherein certain defects in the construction of the building were discussed and that a list of the defects was drawn up by the agent of the bondsmen. This list was turned over to the contractor with the understanding that the defects would be corrected. This list was not presented in evidence and the testimony is very indefinite as to the defects enumerated therein and whether or not they have been corrected. If these defects were corrected, the ones now complained of were not included therein. If, on the other hand, they were not corrected, the contractor has not fulfilled his obligations. In any event, the contract has not been complied with. Much stress, has been made over the fact that the plaintiff had knowledge that the plaster was defective in the downstairs portion of the house when she accepted the building and stated that she guessed she would have to ‘swallow the plaster.’ While the plaintiff knew there were some defects in the plaster in the downstairs portion of the house, yet we do not believe she would have accepted the ■building had she known the extent of the defects which were later ascertained by the independent contractors. She could not have known at the time she accepted the building about the defective plaster in the upstairs portion of the building because her testimony, that she did not go upstairs on account of her illness, is not contradicted. It is not shown that she had knowledge at that time that certain materials were omitted or that inferior materials had been substituted for those called for in the specifications.
* * * iH ‡ *
“The defense of waiver is a special one and the burden of proof is on the defendants to show that the plaintiff had knowledge of the defects in construction and that she intentionally-waived same.
“The' courts of this state have held that an owner is not estopped from claiming damages for the breach of a building contract by taking possession and moving into the building. The failure of the contractor to construct the building in accordance with the plans and specifications was a violation of the contract and the taking of possession of the premises by the plaintiff can not be considered as a discharge of the defendants’ liability. Lobdell v. Parker, 3 La. 328, 331; Morton v. Pollard, 9 La. 174; Overton v. Simon, 10 La.Ann. 685; Miller v. Stewart, 12 La. Ann. 170; Nicholson v. Desobry, 14 La.Ann. 81; Conery v. Noyes, 17 La. Ann. 201; Gordy v. Veazey, 25 La. Ann. 518; Levy v. Schwartz, 34 La. Ann. 209; Borrosky v. Hill, Harris & Co., Inc., 1 La.App. 431; Payne & Jou-bert v. Amos Kent Brick & Lumber Co., 110 La. 750, 34 So. 763; Police Jury [of Parish of Vernon] v. Johnson, 111 La. 279, 35 So. 550; Di Franco v. Ascani, 13 La.App. 2, 127 So. 76. * * *"

Plaintiff’s complaint of incomplete and defective work was itemized in paragraph 40 (A) of his second supplemental and amended petition, and the lower court in its analysis of the evidence adduced presented its conclusion as to each item therein complained of. The able and learned trial judge saw and heard the witnesses as well as personally visited and inspected plaintiff’s premises and has given us the benefit of his superior opportunity for observation as disclosed in his written reasons for judgment wherein his' analysis of the facts from a voluminous record has been of material help to us. We find no manifest error therein.

Warrantor-appellant does not sustain its contention, in law or in fact, that the judgment of the lower court in favor of defendant Mid-States and against Baton Rouge Tin Shop and its individual partners should be reversed.

In reurging the contention that plaintiff does not have a cause of action against his vendor for breach of warranty and against the vendor’s contractor and its surety in solido, defendant cites the case of Cipriano v. Superior Realty & Construction Corporation, 228 La. 1065, 84 So.2d 822. This case is not applicable to the case at bar, being based on fundamentally different factual situations. In the Cipriano case plaintiff sued for a breach of warranty under a contract of sale between him and Superior; whereas, in the instant case plaintiff sues to enforce a contract made for the improvement of property by Belfair, from whom he acquired said property. LSA-Civil Code Article 2011; Breaux v. Laird, supra. Plaintiff’s suit is also to enforce an agreement by the terms of which Belfair agreed to have a dwelling constructed on Lot No. 95, in accord with the plans and specifications referred to in said agreement and exhibited to plaintiff, being the same plans and specifications referred to in the building contract.

Accordingly, for the reasons assigned, the judgment appealed from is amended so as to include damages claimed in subpara-graphs (d) and (j) of paragraph 40(A) of plaintiff’s second supplemental petition, and for determination of said damages this case is remanded for trial by the district court in accordance with law; and in all other respects the judgment of the district court is affirmed; all costs to be paid by defendants.

      . A Louisiana Corporation whose 1,000 shares of stock are owned by Martin L. Laird, Jr., T. O. Wells and Carl Kellogg, in proportions of 499 shares, 500 shares and 1 share, respectively.

      . Breaux v. Laird, 223 La. 446, 65 So.2d 907.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alcide YOUNG, Ind. et al. v. Mr. & Mrs. Hy. RAYBURN.
    No. 4224.
    Court of Appeal of Louisiana. First Circuit.
    May 17, 1956.
    Blanchard & Blanchard, Donaldsonville, for appellant.
    Perry J. Smith, Gonzales, for appellee.
   PER CURIAM.

On joint oral motion of counsel for appellant and appellee this case is remanded to the District Court for the completion of the record.


author: TATE, Judge.

text:
    Bert T. WAIT et al., Plaintiffs-Appellants, v. Mrs. Nettie Lowe PEARSON et al., Defendants-Appellees.
    No. 4218.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.

      Stone & Toomer, Lake Charles, for appellants.
    Jones, Kimball, Harper, Tete & Wether-ill, Lake Charles, for appellees.
   TATE, Judge.

This is an action in boundary. Plaintiffs appeal from judgment which fixed the eastern boundary of their land, not on the governmental quarter-section line per their record title, but as along an ancient fence about 200 feet west thereof (i. e., 200' within their land per record title).

The question herein is whether an ancient fence lying within land sold by a seller can constitute as against the immediate purchaser a visible boundary separating the contiguous estates created by the sale, when such fence fails to accord with the ideal boundary line of the tract the seller warranted to deliver to the purchaser.

To be considered in this determination is the effect of a vendor’s retention of possession of part of the land expressly sold by him, with regard to application as against his immediate purchaser of the 30-year prescriptions of Article 852, LSA-C.C. (boundary actions) and Articles 3475, 3499 (acquiring ownership of immovables by adverse possession).

The diagram below shows the land involved in this controversy, being the two 40-acre tracts described by governmental survey as the NW^4 and the NE14 (together forming the NJ^), of the NW%, S.29, T 9 S, R 2 E, lying in Calcasieu Parish:

Plaintiffs hold record title to the entire 40-acres of the NPFJ4 by purchase from Eugene C. Wilcox on March 5, 1949, and urge that the District Court erred in fixing their western boundary along the ancient fence (CD, in diagram) rather than by the quarter-section line (AB) according to the governmental survey and their record title. This had the effect of depriving plaintiffs of 6.65 acres of land that their record title called for.

Defendants are the heirs of Walter J. Lowe, who died in November, 1949, and own the NE(4- On February 4, 1919, Lowe had sold to Eugene C. Wilcox land described as follows:

“Northwest quarter of the Northwest quarter (NW)4 of NWJ4) of Section Twenty-nine (29), Township nine (9) South, Range six (6) West, Louisiana Meridian.”

Wilcox lived on said land until he sold it to present plaintiffs by this same description by governmental survey on August 17, 1949.

In 1918 Lowe had purchased from Arthur T. Jones both the NW “forty” (sold later to Wilcox) and the NE “forty” (retained by him up until his death) shown above by diagram. At the time Lowe acquired the land, a “cross fence” (CD above) was situated thereon. This fence had been erected approximately in 1905 by Jones to separate his “mule lot” from his lower-lying “rice land” east thereof.

It is undisputed that the present fence is identically situated with the old “cross fence”, and that it has been continuously maintained at that place since-1905. Supported by a preponderance of the evidence are the District Court's further findings that from February 4, 1919, until August 17, 1949 (when plaintiffs purchased from Wilcox), “Lowe remained in open, physical possession of the property located immediately East of that fence; that Wilcox exercised actual physical possession during that period over the property located immediately West of such fence; that neither of said owners interfered with the possession of the other; and that Lowe did not acknowledge during that period that Wilcox owned any property located East of that visible boundary.”

Plaintiffs ably sought to show that certain pasturage rights and rice straw given by Lowe to Wilcox from the eastern “forty” were in the nature of rent for the use of Wilcox’ land east of the fence, which Lowe cultivated with his other lands; however, we like the District Court believe the evidence preponderantly indicates such perquisites were given in return for Wilcox’ aid to Lowe in harvesting the latter’s crops. The record reflects that during the entire period of time Lowe planted his rice crops right up to the fence within Wilcox’ record title, with Wilcox’ knowledge and without any objection or contrary claim by Wilcox.

Although Wilcox denied under oath in written interrogatories that the fence had ever been recognized as the boundary line between these two estates, the effect of this testimony is lessened by a letter he wrote by his own hand to the husband of one of defendants on October 27, 1953, immediately prior to suit, stating in part “ * * * I never had the land surveyed and I always considered the fence on the line.” (Tr-42.) In view of the other surrounding circumstances,- as well as this prior clearly contradictory statement, the District Court’s refusal to accept Wilcox’ testimony was not manifestly erroneous.

The District Court then held that the fence constituted and was recognized as a visible boundary between the two estates for a period of time in excess of thirty years; that therefore under the provisions of Article 852, LSA-Civil Code, defendants were entitled to judgment fixing the boundary along this ancient fence, since “where a tract of land has been possessed under visible bounds for 30 years, such visible bounds should prevail over the ideal bounds called for in the titles.” Opdenwyer v. Brown, 155 La. 617, at pages 624-625, 99 So. 482, 484.

In this leading case, the Supreme Court further stated, 155 La. 617, at page 626, 99 So. 482, at page 485:

“It is our firm conviction that the public interest requires that boundaries established for more than 30 years should not be disturbed; and we think the law so provides.”

See also Duplantis v. Locascio, La.App., 1 Cir., 67 So.2d 125; Tate v. Cutrer, La.App., 1 Cir., 53 So.2d 285; Crow v. Braley, La.App., 47 So.2d 357; Picou v. Curole, La.App., 1 Cir., 44 So.2d 354; Henly v. Kask, La.App., 11 So.2d 230; Latiolais v. Robert, La.App., 1 Cir., 8 So.2d 347; De Bakey v. Prater, La.App., 1 Cir., 147 So. 734.

However, admitting that the 1905 fence was so situated past 1949, plaintiffs nevertheless urge reversal since “In the determination of boundaries we think the intention of the parties is an essential requirement.” Plester v. Smith, La.App., 72 So.2d 549, at page 551, holding:

“Irrespective of the existence of evidence of remains and vestiges of an old fence, even conceding that these are evidences of the 1902 fence, in the absence of an agreement or understanding evidencing the intent of the parties to accept this line as a boundary, the contention must fail.” 72 So.2d 552. (Italics ours.)

See also Arabie v. Terrebonne, La.App., 1 Cir., 69 So.2d 516.

The party who alleges that the claimed visible boundary is to be preferred to the ideal bounds called for by the titles, has the burden of proving that “the fence has been in existence and recognized as the boundary for the stated period of time.” Broussard v. Winn, La.App., 1 Cir., 41 So. 2d 486, 490.

Of course, if no boundaries between the contiguous estates have ever been fixed either judicially or extrajudi-cially, then the action is imprescriptible, Article 825, LSA-C.C.; the prescriptive periods, including that of 30 years under Article 852, LSA-C.C., only apply where the boundaries have been fixed incorrectly, Opdenwyer v. Brown, 155 La. 617, 620, 99 So. 482, see Note, “Action of Boundary”, 17 Tulane Law Review 303.

“When the two estates have never been separated, the boundaries must be fixed according to the respective titles. R.C.C. art. 845.” Opdenwyer v. Brown, 155 La. 617, 620, 99 So. 482, 483.

The evidence does not reflect any express agreement or understanding between the original vendor, Lowe, and the original purchaser, Wilcox, that the pre-existing “cross fence.” jointly maintained by them was to be the boundary between the land purchased by the latter and the land retained by the former. On the other hand, the vendor, Lowe, continued to cultivate and occupy the land up to the fence, even though it was included within the sale to Wilcox, without contrary claim (such as for a portion of the crops or other recompense) or without opposition by Wilcox, the purchaser. From this circumstance, continued over so long a period of time, arises at least a practical deduction that both purchaser and vendor regarded this fence as the boundary line between their contiguous estates.

But the serious and troubling question raised in the mind of this Court was whether, as between vendor and purchaser, the incorrectly placed visible bound can have the same effect as it does between persons who do not occupy this legal relationship.

It should be noted that in none of the above-cited cases does it appear that the court was concerned with whether within the 30-years’ possession the visible boundary incorrectly fixed per title could serve as the basis for a prescriptive boundary as between the original vendor and purchaser whose sale created the contiguous estates.

In the present instance, from 1919 at least up until 1939, the original purchaser and the original vendor owned the contiguous tracts. In a sense, it seems contradictory to hold that the vendor intended to possess as owner the portion of the NW “forty” he had expressly sold and warranted to deliver to the purchaser.

In Frost Lumber Industries, Inc., v. Harrison, 215 La. 767, 41 So.2d 674, at pages 675-676, our Supreme Court stated in its latest pronouncement on the subject:

“It is, of course, ordinarily true that one in possession of property is presumed to hold as owner. But this presumption does not obtain where it appears that the possessor has sold the property and has remained in possession by the sufference of his vendee. * * * And while it is also well recognized in our jurisprudence that there is no legal obstacle which prevents a vendor from re-acquiring a prescriptive title to the property he has sold, Roe v. Bundy’s Heirs [45 La. Ann. 398, 12 So. 759] and Succession of Zebriska [119 La. 1076, 44 So. 893], supra (relied on by the Court of Appeal), are cogent authority for the proposition that such a vendor, who has continued in possession following the sale, must establish as a fact that he possessed as owner — for, in the absence of any evidence other than his retention of physical possession, he will be regarded as a precarious possessor for his vendee." (Italics ours.)

“Where the vendor remains in possession of the property he has sold, he, like the co-owner, is not estopped from starting prescription running in his favor if he exercises on the property such control that the vendee cannot fail to notice that his vendor is holding the property with the intention of possessing as owner and not for the vendee,” Comments, “Elementary Considerations in the Commencement of Prescription on Immovable Property”, 12 Tulane Law Review 608 at 620-621.

Excellent discussions of this subject, with citations of the French authorities (who are in conflict), are set forth in Roe v. Bundy’s Heirs, 45 La.Ann. 398, 12 So. 759, and in the original opinion in Arnold v. Sun Oil Company, 218 La. 50, 48 So.2d 369, at pages 383-387. In this latter opinion (set aside on other grounds on rehearing) it is stated, 48 So.2d 387:

“We hold to the view that, when the continued possession of the vendor is unexplained, as to third persons there is a presumption of simulation, Civil Code, Article 2480, and as between the parties the unexplained continued possession of the vendor is presumed to be for the benefit of the vendee, Civil Code, Articles 3433 and 3489.”

See also 2 C.J.S., Adverse Possession, § 123, p. 677, 1 Am.Jur. 818-819, Verbo “Adverse Possession”, Sections 47 and 48; Annotation, “Grantor’s possession as adverse possession against grantee”, 39 A.L. R.2d 353, esp. at 374, 375, 380, and 382.

In Roe v. Bundy’s Heirs, cited above, the Court held that since Article 2475, LSA-C.C., imposed upon the seller the obligation of delivery and Article 2468 obliged him to safeguard the thing until delivery, therefore during the interval between sale and delivery, the vendor’s continued possession was that of the vendee and the vendor’s title therefore was precarious and not adverse and that of owner. To like effect held Roberts v. Phillips, 6 La.App. 394, which at page 398 stated: “A vendor who remains in possession cannot acquire the property by prescription as against his vendee unless he does some act or in some way makes known to the vendee his intention to possess adversely to him.” (Italics ours.)

Cases apparently holding that the trial court’s determination as a factual matter was not manifestly erroneous that the vendor’s continued possession was adverse to and not for the benefit of his purchaser, include First National Bank of Atlanta, Tex., v. Thomas, 172 La. 772, 135 So. 235, earlier opinion (setting forth law of case) 168 La. 481, 122 So. 589; Succession of Zebriska, 119 La. 1076, 44 So. 893; Louisiana Highway Commission v. Raxsdale, La. App., 12 So.2d 631. See also Chronos Land Co., Inc., v. Crichton, 150 La. 963, 91 So. 408.

This jurisprudence admittedly deals with the acquisitive prescription of 30-years under Articles 3475, 3499, LSA-C.C., rather than the prescription applicable to boundaries actions under Article 852, LSA-C.C., as to which there is some difference, see Opdenwyer v. Brown, 155 La. 617, at pages 622-625, 99 So. 482. (For instance, the latter being favored, a possessor may be permitted to tack possessions for purposes of the boundary prescription, although not for the former.)

None of the Louisiana jurisprudence above-cited conclusively indicates whether the continued possession and occupancy of the vendor up to the fence line, including his cultivation of the crops, is actually adverse to the purchaser of the land sold, see e. g. Williams v. Bernstein, 51 La.Ann. 115, at page 124, 25 So. 411, quoted with approval in Collett v. Otis, La.App., 1 Cir., 80 So.2d 117, Beene v. Pardue, La.App., 79 So.2d 356.

But it may be noted that all of these cases with one exception (noted below) concern the situation where the vendor, despite the recorded sale to the purchaser, remains in physical possession of the entire tract of land sold. In such instances, such unexplained continued physical retention of the property sold gives rise (as the cases cited indicate) to a presumption that the continued possession by the vendor is for the benefit of the purchaser. This legal presumption might be explained in terms of the probabilities of human nature. It would be extremely unusual behaviour for a purchaser who has bought and paid for some property to permit without protest his seller to retain possession thereof under a claim adverse to the purchaser’s.

However, in the present instance, as in Louisiana Highway Commission v. Raxs-dale, La.App., 12 So.2d 631, the purchaser went into possession of part of the property sold and the vendor retained possession of another part. In this cited case, without discussion, the Court held that the continued possession per se by the vendor was adverse to the purchaser.

After serious reflection, we think that under the circumstances of the Raxs-dale and the instant cases, where the purchaser goes into possession of only part of the contiguous property purchased, then a presumption does not arise that, the unexplained continued possession by the vendor of the other part of the property is for the benefit of the purchaser and is not adverse thereto.

For it would be unusual behaviour for a purchaser to take possession of only part of the contiguous property purchased. In the absence of explanation, it may be presumed that the purchaser took possession of all the property he thought he had purchased, and that the seller retained possession of property he thought he had not sold. The seller therefore possesses as owner, and such adverse possession for the requisite period of time would confer ownership by prescriptive title, even against his own purchaser; See Roe v. Bundy’s Heirs, 45 La.Ann. 398, at page 404, 12 So. 759, at page 761, quoted in footnote 4 above.

Further, under such circumstances, the retention of possession by the vendor up to a visible boundary such as a fence line, may constitute an acquiescence by both parties in such fence as a boundary, so as to be governed by the line of jurisprudence comprehensively discussed by our brothers of the Second Circuit, Judge Ayres the organ of the court, in Beene v. Pardue, 79 So.2d 356, and summarized therein at 79 So.2d 362:

“Where the record definitely supports the conclusion that the boundary between two estates has been established and has existed by visible marks for a period of more than thirty years prior to the institution of a suit, the jurisprudence is well settled that such an existing boundary will not be altered despite its failure to accord with the ideal or perfect boundary.”

We think therefore' the District Court properly held that the acquiescence for more than 30 years in the old fence as boundary line between the two estates by the owners thereof requires the acceptance of said fence as the boundary to be fixed between the said estates, despite its failure to be situated according to the boundary reflected by the record titles and despite the circumstance that for a long portion of this time these owners occupied the relationship of vendor and purchaser in the sale creating these contiguous estates.

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

Affirmed.

      , By this same description, he had donated it to his brother, Walter S. Wilcox, on November 7, 1939, who also lived on it until his death on March 5, 1949, when Eugene Wilcox reacquired it by inheritance.

      . Sharpless v. Adkins, La.App., 22 So.2d 692, 694, accepted a road as a visible bound and .included for part of the prescriptive period the adverse possession of the original vendor and purchaser; however, the original sale was of “Twenty-four acres (24), more or less * * * East of public road”, thus in effect affording basis for the holding that the boundary fixed was correctly fixed according to the record title.

      . In this case, the vendor was held not to have possessed the land sold as an owner, because she enjoyed the usufruct over an undivided interest therein and possessed therefore partly in that capacity. See to same effect, Hill v. Dees, 188 La. 708, 178 So. 250.

      . Cf. Roe v. Bundy’s Heirs, 45 La.Ann. 398, at page 404, 12 So. 759, at page 761:
      “Coming to the consideration of - the question as to whether the vendor of the property is absolutely precluded from acquiring' title to the property convoyed by him to his vendee, adversely to that ven-dee, by the prescription of 80 years, we find that the weight of authority, both under the civil and common law, is decidedly in favor of the proposition that he is not estopped from doing so, and that the differences among commentators and courts on this subject have been principally as to the time, circumstances, and conditions under which such acquisition can be made and claimed, and under what evidence it can be proven.”


author: LOUIS H. YARRUT, Judge ad hoc.

text:
    SIMPLEX MANUFACTURING CORPORATION v. COOK TRUCK LINES, Inc.
    No. 20068.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.
    Rehearing Denied June 27, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      John E. Jackson, Baldwin J. Allen and John E. Jackson, Jr., 'New Orleans, for plaintiff-appellant.
    Porteous & Johnson, Curtis R. Boisfon-taine, New Orleans, for defendant-appel-lee.
   LOUIS H. YARRUT, Judge ad hoc.

Plaintiff-appellant, hereinafter referred to as shipper, prosecutes this appeal from an adverse judgment in favor of defendant-appellee, hereinafter referred to as carrier.

Shipper sues to recover $372, plus interest and costs, the value of a shipment of merchandise delivered to carrier in New Orleans on June 21, 1949, for shipment to a consignee at Coeur D’A Lene, Idaho, on a through 'bill-of-lading, sight-draft attached, to shipper’s order, notify consignee. Shipper agreed to pay all freight and transportation charges.

Upon arrival at Coeur D’A Lene consignee refused the shipment and carrier so notified shipper. On September 19, 1949, shipper wrote carrier, enclosing new bills-of-lading in favor of a new consignee and changed the destination to Spokane, Washington. This change of destination and consignee is evidenced by letter from shipper to carrier reading as follows:

“We enclose herewith original B/L covering shipment two crated Servi-Cycles forwarded by us on June 22nd to Jensen & Gaasch, 245 Northwest Boulevard, Coeur D’A Lene, Idaho, rounted Consolidated Freightways at Chicago. We also enclose new set of Order Notify Ladings and request that these machines be reshipped to:
Columbia Cycle Company
1412 N. Monroe Street
Spokane, Washington
“Please make reshipment on prepaid basis, billing the Simplex Manufacturing Corporation for additional freight charges involved, plus whatever storage charges which may have accumulated while the consignment remained undelivered in Coeur D’A Lene.
“Kindly have the original B/L on the reshipment of this machine furnished us duly receipted as quickly as possible in order that we may issue draft and present to bank for collection.”

Without any protest or reservation, carrier accepted the proposal of the shipper as set forth in the above letter and, in turn, sent the new bills-of-lading to the original terminal carrier at Coeur D’A Lene, with instructions to reconsign to the new consignee at Spokane. While the new shipping documents were lost, the consignment arrived in Spokane, Washington, but was never delivered to the new consignee because of the loss of the shipping documents. After correspondence between the carrier, the shipper and the intervening carriers, and a lapse of 18 months, the terminal carrier at Spokane advised carrier that it was still holding the shipment; that the shipment would hardly bring $100 on the market (or a depreciation in value of nearly 75%) subject to a $60 storage charge.

As a result, shipper made claim against carrier for the loss of the shipment, which carrier denied.

Carrier resists the claim on two grounds: (1) That when it accepted the reconsignment order for the change of destination and consignee, it was not acting in the capacity of carrier, but gratuitously for the accommodation of the shipper; and (2) That shipper could have obtained the release of the shipment at Spokane under National Motor Freight Classification rules, Rule 7, Section 4, permitting the bonding for double the amount of the value of the shipment to secure delivery in advance of the surrender of the bill-of-lading.

During the argument in open court, counsel for carrier admitted that if we find defendant, by virtue of the letter of September 19, 1949, remained the initial carrier, then defendant would be responsible for the loss. Such a concession is legally sound, because the- law makes no distinction between liability for physical loss or damage, and liability for depreciated market value resulting from unusual delay in delivery, caused by the unexplained loss of shipping documents controlling the shipment.

It is unnecessary to discuss here whether or not the carrier’s liability terminated upon the tender of the shipment, and its refusal by the original consignee in Coeur D’A Lene, the original terminus. Whatever the shipper may have done under the Carmack amendment to relieve itself of liability as an initial carrier is of no moment. Carrier accepted the instructions of shipper without protest or reservation, so must be held to have amended the original contract of carriage to the extent of the accepted change. Carrier did not protest, nor make any exception or reservation under the change order, as to the new consignee and destination. The letter of change, quoted above, is too clear and explicit for doubt.

This was an interstate shipment controlled by federal statute, which makes the initial carrier liable to the shipper for any loss, damage or injury to shipments transported on a through bill-of-lading issued by it. In this case the loss or damage did not occur during the transportation on the original bill-of-lading, but during a further transit after a reconsignment by the shipper under an amended lading. The order of reconsignment was transmitted by carrier apparently without delay, fault or negligence on its part. This undertaking by the carrier under the original Carmack amendment, prior to its amendment of July 3, 1926, would not have imposed liability for loss, damage or injury to the shipment, after reconsignment and while in transit beyond the destination stated in the original bill of lading. Chase & Co. v. Florida East Coast Ry. Co., 94 Fla. 1143, 115 So. 825; Clark v. Louisville & N. R. Co., 216 Ala. 637, 114 So. 295; Parker-Bell L. Co. v. Great N. R. Co., 69 Wash. 123, 124 P. 389, 41 L.R.A.,N.S., 1064; Pere Marquette R. Co. v. J. F. French & Company, 254 U.S. 538, 41 S.Ct. 195, 65 L.Ed. 391; Roberts Federal Liability, 2d Ed., Vol. 1, Sec. 346, p. 683.

However, as a result of the amendment of July 3, 1926, to the original Carmack amendment, the federal statute now provides that the liability imposed upon the initial carrier of interstate shipments “shall also apply in the case of property reconsigned or diverted”. 49 U.S.C.A. 20(11), Gentile Bros. Co. v. Atlanta Coast Line Co., 96 Fla. 228, 117 So. 890.

As this shipment originated after the last amendment to the Carmack amendment, the carrier here, as the initial carrier, accepting the order for re-consignment, without protest or reservation, became liable for loss or damage occurring anywhere between point of shipment and ultimate destination. Wilson & Co. v. Werner Transp. Co., 330 Ill.App. 25, 69 N.E.2d 713; Deer Park Baking Co. v. Cleveland & Chicago Motor Express Co., Ohio App., 68 N.E.2d 824; Keystone Motor Freight Lines v. Brannon-Signaigo Cigar Co., 5 Cir., 115 F.2d 736; Warley Fruit & Produce Co. v. Louisville & N. R. Co., 17 Ala.App. 263, 84 So. 311.

Therefore, the defense that the carrier here was not acting in the capacity of carrier, but was a gratuitous bailee or warehouseman, is not well founded under the facts and the law.

With reference to the failure of shipper to effect a release of the shipment upon giving bond for twice its value under the National Motor Freight Classification rules, referred to above, it is incumbent upon the carrier to retrieve and minimize the shipment; not the shipper. The shipper could not be expected to involve itself in an additional loss of 200% of the value of the original shipment after the original shipment had depreciated in value to 25%, and that amount practically wiped out by storage and other charges.

Under the circumstances, shipper is entitled to recover from the carrier the full value of the shipment, $372, with legal interest from June 21, 1951, until paid, and all taxable costs in both courts.

Accordingly, the judgment appealed from is annulled, avoided and reversed, and it is now ordered that there be judgment in favor of plaintiff, Simplex Manufacturing Corporation, and against defendant, Cook Truck Lines, Inc., for the full sum of $372, with legal interest from June 21, 1951, until paid, together with all costs.

Reversed.

JANVIER, J., absent, takes no part.


author: McBRIDE, Judge.

text:
    In re PARKING SERVICE, Incorporated, Administration of Abandoned Automobiles.
    No. 20653.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Rehearing Denied June 25, 1956.
    Writ of Certiorari Granted Sept. 28, 1956.

      John N. McKay, New Orleans, for Augustus G. Williams, appellant.
    Philip P. Spencer, New Orleans, for Public Administrator, Parish of Orleans, appellee.
    Clay, Coleman & Dutrey, New Orleans, for Parking Service, Inc., appellee.
   McBRIDE, Judge.

On May 16, 1954, Richard Monroe Smith was arrested by officers of the Federal Bureau of Investigation (hereinafter called FBI) in connection with an alleged violation of certain laws of the United States and was incarcerated in the. Parish Prison at New Orleans. On the day of his arrest and while in the Parish Prison, Smith transferred title to two certain automobiles by written assignments to Augustus G. Williams, who is an attorney at law practicing at this bar. These vehicles are a 1952 Ford and a 1954 Oldsmobile.

On the same day agents of the FBI seized the said automobiles as evidence in the case against Richard Monroe Smith. Whether this seizure was made before or after Smith transferred ownership to Williams is not shown. Plowever, the cars were taken by an agent of the FBI to the garage of Parking Service, Inc., and a contract was made with the corporation for the storage of the two cars in question. The evidence shows that Parking Service, Inc., was engaged in the business of parking automobiles “day to day” or “in and out service” and did not undertake keeping vehicles as “dead storage.” The latter term, as we understand it, means that the automobile is to remain for an extended period of time without being made use of during the storage. The charges usually made in connection with “dead storage” are considerably less than for “day to day” service. The terms of the contract were that Parking Service, Inc., would store each automobile at the rate of $1.50 per day (24 hours), which is the same charge it makes for “day to day” or “in and out” service.

On March 29, 1955, some nine and one-half months after the cars had been placed in its garage, Parking Service, Inc., sent a letter to the Public Administrator for the Parish of Orleans making formal demand upon him to take and administer as abandoned automobiles three certain described automobiles (two being the cars Williams had acquired from Smith) pursuant to the provisions of LSA-R.S. 32:521-32:524. Parking Service, Inc., also demanded that the Public Administrator recognize the amount due it for storage and its ware-housemen’s lien on the cars. Acting upon such request, the Public Administrator petitioned for appointment as administrator of the three automobiles “as abandoned property by their owners in storage for over six months.” On May 4, 1955, W. S. Benedict, the Public Administrator, qualified as administrator of the automobiles, and he immediately petitioned the court for a public sale which was ordered to be held on May 25, 1955, by a local auctioneer under the direction of the Public Administrator.

A few hours before the sale, Augustus G. Williams filed an intervention in the proceedings claiming to be the owner of the 1952 Ford and the 1954 Oldsmobile, his allegation being that he had acquired title to these vehicles from Richard Monroe Smith. Williams alleged, among other things, that he had notified Parking Service, Inc., of his ownership of the automobiles and had at all times protested, but to no avail, that the detention of the automobiles by Parking Service, Inc., was effectuated without his consent and against his will, and that he is not in any wise indebted for any storage charges, and further that the automobiles were never abandoned by him and the Public Administrator has no right to administer or sell the vehicles. He prayed for a temporary restraining order enjoining the public sale of the two automobiles; that the auctioneer, Parking Service, Inc., and the Public Administrator be ordered to show cause why a preliminary injunction should not issue enjoining them from undertaking to enforce any “storage lien” against petitioner’s automobiles until the further orders of the court and from offering the automobiles for sale in an attempt to enforce such lien; he further prayed that there be citation on said three defendants and that ultimately there be judgment in his favor decreeing that thé automobiles described in the petition are free from any storage charges or liens therefor and that said automobiles be delivered forthwith to him; that the preliminary injunction be made permanent.

Parking Service, Inc., answered Williams’ intervention claiming garage charges in the amount of $1,114.40, plus $500 attorney’s fees for defending the intervention. Its prayer is that the intervention be dismissed and that it have judgment for $1,614.40 with recognition of its lien on the automobiles.

After a hearing, there was judgment rendered recognizing Augustus G. Williams to be the owner of the two automobiles; the judgment further recognized that there was due the Public Administrator the statutory amount of his commission and costs; Parking Service, Inc., was recognized as having a lien on the automobiles for storage charges to the extent of $635.96; the automobiles were ordered to be sold at public auction by the Civil Sheriff for the Parish of Orleans, and that out of the proceeds of the sale the charges of the Public Administrator be first paid and then the lien of Parking Service, Inc., be satisfied, and that whatever balance was left be paid over to Augustus G. Williams after deducting all costs of court in the proceedings. Williams appealed from the judgment except insofar as it recognized his ownership of the two vehicles.

Parking Service, Inc., answered the appeal praying that the amount of its lien be increased to $1,614.40, plus whatever storage charges may accrue during the pendency of this case.

All parties to the suit have seen fit to consider the judgment rendered below as a definitive judgment, and we shall so consider it.

Parking Service, Inc., assails Williams’ ownership of the two automobiles, but the question of ownership of the cars is no longer an issue in the case. The judgment recognized Williams as the rightful owner, and as Parking Service, Inc., in its answer to the appeal makes no complaint of that portion of the judgment, to that extent the judgment is final.

The record indicates that up to the present time Richard Monroe Smith has never been brought to trial in the United States District Court. But for some reason or other, about February 10, 1955, the United States Attorney saw fit to authorize the release of the automobiles.

We cannot understand under what theory of law Parking Service, Inc., claims to have a garagemen’s lien on the two vehicles. On the day after they had been taken in charge by the FBI and placed in the garage, the attorney for Williams made demand on Parking Service, Inc., for release of the automobiles, which was refused on the ground that they were held for the account of the FBI. Parking Service, Inc., only agreed to surrender the automobiles to Williams about February 10, 1955, when the United States Attorney authorized the release, and then only upon the condition that Williams would satisfy the bill for accrued storage charges which he refused to pay.

The owner of the cars neither placed them in the garage nor consented to their storage, and as there was no privity of contract whatever as between Williams and Parking Service, Inc., he is not liable for the garage expenses. Parking Service, Inc., has no lien for storage charges on the basis of the contract with the FBI against which Williams always made protest. See Pollard v. Borneman, 47 S.D. 622, 201 N.W. 525, 36 A.L.R. 954; Brown v. Ace Motor Co., 30 Ala.App. 479, 8 So.2d 585.

In support of its claim for a privilege on the vehicles, the garage owner specifically relies on Arts. 3224, 3225 and 3226, LSA-C.C., which read as follows:

“Art. 3224. He who, having in his possession the property of another, whether in deposit or on loan or otherwise, has been obliged to incur any expense for its preservation, acquires on this property two species of rights.
“Art. 3225. Against the owner of the thing, his right is in the nature of that of pledge, by virtue of which he may retain the thing until the expenses, -which he has incurred, are repaid.
“He possesses this qualified right of pledge, even against the creditors of the owner, if they seek to have the thing sold. He may refuse to restore it, unless they either refund his advance, or give him security that the thing shall fetch a sufficient price for that purpose.
“Art. 3226. Finally, he who has incurred these expenses has a privilege against these same creditors, by virtue of which he has preference over them out of the price of the thing sold, for the amount of such necessary charges as he shall have incurred for its preservation. This is the privilege in question in the present paragraph.”

We do not think that these codal articles have any application in the case. We hive not been cited to any provision of the law, and we know of none, which authorized the agents of the FBI to store the two cars taken by them as evidence at the expense of the owner without his consent thereto. The cited articles of the Code are based on the principle of the preservation of the thing, but this does not mean that an unauthorized person may make a contract with another for the storage of property at a higher than usual rate, not only without the owner’s consent, but over his vehement protests, under the guise of “preserving” the property.

Under the circumstances, it necessarily follows that the Public Administrator has not the legal right to “administer” the 1952 Ford and the 1954 Oldsmobile “as vacant estates and as estates of unknown owners” under the provisions of LSA-R.S. 32:521-32:524.

It is therefore ordered, adjudged and decreed that the judgment appealed from, except insofar as it recognizes Augustus G. Williams as the sole and only owner of the two automobiles in question, be and the same is hereby avoided and reversed, and the judgment is now amended so as to provide that the said automobiles be delivered to Augustus G. Williams free and clear of any storage charges or liens, and as thus amended it is affirmed.

Parking Service, Inc., is cast for its own costs and the costs expended by Augustus G. Williams, including the costs of this appeal.

Reversed in part; amended and affirmed in part.


text:
    C. T. STREET, Inc. v. Peter B. BRELAND.
    No. 20735.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.
    Morphy & Freeman, New Orleans, for plaintiff and appellant.
    J. Barnwell Phelps, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff sues for $241.20, the balance due on a conditional sales contract covering the sale of a seven-year-old automobile-truck. Defendant admits purchasing the truck and signing the conditional contract, but he makes the defense that the truck possessed redhibitory vices which rendered it absolutely useless for the purposes for which he had purchased it. In a reconven-tional demand he seeks to have the sale rescinded and recover judgment for $456.-46, representing payments which he had made on the contract, the cost of repairs to the truck, and for the amount of damages he was forced to pay by reason of the truck having collided with an automobile. After a trial on the merits, there was judgment in favor of plaintiff for $139.74, together with IS per cent attorney’s fees. The demand in reconvention was dismissed. Plaintiff has appealed.

Briefly stated, the facts are that the sale was made at Laurel, Mississippi, on June 7, 1954, defendant paying $175 on account of the purchase price and signing the conditional sales contract for $421.20 in evidence of the deferred portion of the price. On the day of the sale defendant drove the truck to New Orleans, and his testimony is that on this trip he learned that the truck consumed an excessive quantity of motor oil. He further testified that the lighting system was defective and that subsequently the whole ignition system ceased to function. It- is said, also, that on August 4, 1954, the brake system failed which caused the truck to run into and damage an automobile.

While under LSA-C.C. art. 2520 a sale may be avoided because of some vice or defect in the thing sold, which renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice, the jurisprudence of the State is to the effect that the purchaser by his actions might be held to have accepted the defective goods, thus waiving his right to claim the benefit of redhibition. The evidence convinces us that notwithstanding the truck may have been as defective as alleged, the defendant continued to make use of it and that he therefore has waived his right to have the sale rescinded.

The defendant says he purchased the truck for use in his brother’s business. On the journey to New Orleans the same day, the circumstance that the truck consumed an excessive amount of motor oil should have been sufficient to have apprised him of the fact that he had purchased a defective vehicle. He did not see fit to notify the vendor of his dissatisfaction with the truck, but continued using it, and it was about two or three weeks later that the lighting system proved to be defective and the entire ignition system ceased to function. Instead of complaining to the vendor, defendant took it upon himself to have certain repairs made and continued making use of the truck. The incident of the failure of the brakes and the collision with the other car took place on August 4 and still no complaints were made by defendant. The evidence shows clearly he continued to operate the automobile in connection with his brother’s business for at least four months after the purchase.

The record shows that defendant not only continued to use the truck, but he also made certain payments on the conditional sales contract which aggregated $180. He paid three installments of $35 each, or $105, in October, and on January 10, 1955, he remitted the amount of $75. All this is sufficient to destroy whatever right he had to raise the question of redhibition.

When a purchaser uses the thing which he has purchased for a considerable period of time with knowledge of its defects and makes part payments on the purchase price thereof without protest, he cannot, when sued for the balance due, repudiate the contract on the ground of redhibition. Moreau v. McGehee, La.App., 44 So. 2d 833; Murphy v. Ethridge-Atkins Corporation, La.App., 185 So. 487; Cleaners Equipment Corporation v. Weil Cleaners, Inc., La.App., 178 So. 771; G. J. Deville Lumber Co., Inc. v. Jaubert, 19 La.App. 48, 139 So. 502; Goode-Cage Drug Co. v. Ives, 16 La.App. 383, 133 So. 813; Ft. Wayne Engineering & Mfg. Co. v. Baker Fuel Oil Burner Co., 15 La.App. 275, 131 So. 470; Hooper v. Dry Hand Mop Co., Inc., 1 La.App. 621.

In addition to what has been said, we are not satisfied that defendant ever tendered the return of the defective truck to the vendor. Defendant’s brother states that he offered to return the vehicle to Mr. Freeman and Mr. Ascona. The Mr. As-cona referred to has not been identified but the Mr. Freeman spoken of is one of the attorneys for plaintiff. This attorney was not employed to enforce payment of the balance due on the contract until some time after the January 1955 payment of $75 had been made by defendant, and if it is true that an offer to return the truck was made to Mr. Freeman, such offer was only made some months subsequent to the date of the sale and it was therefore ineffective. One wishing to rescind a contract of purchase on the grounds of redhibition must tender the property to the seller within a reasonable time after discovery of the vices or he loses his right of rescission. Barnidge v. Cappel Motor Co., 12 La.App. 216, 125 So. 778.

For the reasons assigned, the amount of the judgment in plaintiff’s favor is increased to the sum of $241.20, and as thus amended and in all other respects the judgment is affirmed.

Amended and affirmed.


author: JANVIER, Judge.

text:
    Robert J. GUZMAN v. Dr. Lawrence R. ROLLING, Executor Succession of Alfred B. Rolling.
    No. 20597.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Rehearing Denied June 25, 1956.
    Roos & Roos, New Orleans, for defendant-appellant.
    Jesse S. Guillot, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Plaintiff is a general contractor.

Prior to his death Alfred B. Rolling was a lessee under a long-term lease of a dwelling at Chef Menteur, a small fishing and hunting settlement about twenty miles from the central business section of New Orleans.

Desiring to make certain additions and alterations Rolling entered into a verbal agreement with plaintiff, Robert J. Guzman, for the labor and material required. Rolling died on April 1, 1952, and Dr. Lawrence R. Rolling was duly qualified as executor of his estate.

On April 27, 1954, plaintiff filed this suit against the estate of Alfred B. Rolling, alleging that he had furnished all the labor and materials contemplated in the original agreement and had also done other work as requested from time to time by decedent, and “that the decedent and his succession were unjustly enriched at the expense of your petitioner,” and that there was a balance due him of $912.20, and he prayed for judgment against the succession of Alfred B. Rolling for that amount.

After a lengthy trial there was judgment in favor of plaintiff as prayed for and Dr. Rolling, as executor of the estate, has appealed.

In this Court the executor filed what he terms a plea of prescription of one year, basing it on the fact that the suit was not filed until more than two years after the death of Alfred B. Rolling, calling attention to the fact that the claim of plaintiff is supported only by oral testimony and directing attention to Act 11 of 1926, LSA-R.S. 13:3721, which provides that:

“Parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought more than twelve months after the death of the deceased.”

Except for the various statements showing the quantities of material and hours of labor which were prepared by plaintiff and identified by him there is nothing in the record showing any amounts due him except his oral testimony.

Counsel for plaintiff, in answer to the plea of the executor which directs our attention to the quoted statute, maintains that that statute can have no effect since the oral evidence was introduced without objection, and he argues that since it was introduced without objection, it is competent to prove the debt even though the suit was not filed within the year following the death of the decedent.

The contentions made on behalf of plaintiff find their answer in the decision of the Supreme Court in Succession of Coreil, 177 La. 568, 148 So. 711, 713. There the administrator of the Succession of Madame Coreil sought to place himself on an account for various amounts which he claimed he paid with his own funds for account of the decedent prior to her death. The account on which he placed himself was not filed until more than one year after the death of the decedent, and, in attempting to prove that the amounts were due him, he offered only oral testimony. No objection was made to this oral testimony.

In the Supreme Court, in opposition to his claim it was argued that, since he had not presented it until after the expiration of the year following the death of the decedent, his oral testimony was “incompetent and inadmissible”, because of the effect of Act 11 of 1926, the statute which is relied on, which provides, as already shown, that in such cases oral testimony is incompetent and inadmissible.

On behalf of the claimant it was argued that since the oral evidence had been admitted without objection, the provisions of the statute had been waived. The Supreme Court said:

“* * * Objections having reference to the competency or effect or sufficiency of evidence are not waived by a failure to object when the evidence is tendered. Only such objections as relate to the relevancy of the evidence, or to some matter of form, or irregularity, in obtaining the evidence, are waived if they are not argued when the evidence is tendered.”

As we read that decision it is a clear, unequivocal holding that, whether objected to or not, such oral evidence is not only inadmissible, but is “incompetent” to prove such a debt.

In Turk & Campbell Plumbing Co. v. Vaselo, La.App., 66 So.2d 406, the Court of Appeal for the Second Circuit considered an identical situation and, following the decision of the Supreme Court in Succession of Coreil, held such evidence to be absolutely incompetent.

In Longino v. Longino, La.App., 169 So. 186, 187, the Court of Appeal for the Second Circuit again found itself confronted with this identical question, and finding that “the only proof to be found tending to establish the asserted indebtedness is that given orally by plaintiff", held that, although no objection had been made to the oral testimony, the evidence was incompetent and could not be availed of to support such a claim.

There is in the record before us only oral evidence. Since that evidence is incompetent we must hold, in accordance with the decisions cited, that there is no competent evidence and that the debt sued on has not been proven.

Accordingly, the judgment appealed from is annulled, avoided and reversed, and plaintiff’s suit is dismissed at his cost.

Reversed.


author: REGAN, Judge.

text:
    Mr. and Mrs. Roland DRUILHET v. Reed L. LABICHE, d/b/a L. & S. Electric Company, et al.
    No. 20643.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.
    Rehearing Deneid June 27, 1956.
    Charles Kohlmeyer, Jr., Lemle & Kel-leher, New Orleans, for defendants-appellants.

      Clarence Dowling, New Orleans, for plaintiffs-appellees.
   REGAN, Judge.

Plaintiffs, Mr. and Mrs. Roland Druilhet, instituted this suit against the defendants, Reed L. Labiche, the owner of a Ford Panel Truck, and his liability insurer, Indemnity Insurance Company of North America, endeavoring to recover the sum of $50,000 representing damages for the personal injuries suffered by Mrs. Druilhet and $2,-602.38, for property damage, medical and other expenses incurred by Roland Druilhet as the ultimate result of an accident which occurred in the intersection of Dryades and Sixth Streets in the City of New Orleans, on June 22, 1954, at about '8:15 a. m., when Mrs. Druilhet, who was operating the family car, was struck by Labiche’s truck which was being driven by his employee, Jerry Boudreaux.

Defendants answered and denied that Boudreaux was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of Mrs. Druilhet.

From a judgment in favor of Mrs. Druilhet in the amount of $4,000 for personal injuries and in favor of her husband for property damage, medical and other expenses in the sum of $2,102.38, defendants have prosecuted this appeal. Plaintiffs have answered the appeal and requested an increase in the amount of the judgment in favor of Mrs. Druilhet from $4,000 to $15,-000 and in favor of Roland Druilhet from $2,102.38 to $2,602.38, or an additional $500 for future medical expenses.

In order to circumvent repetitious designation of parties plaintiff and defendant, we shall hereinafter apply the appellation plaintiff to Mrs. Druilhet and defendant to Boudreaux, the operator of the truck.

The record, as usual, reveals relatively simple but controversial facts always present in an intersectional collision. Plaintiff related that on June 22, 1954, at about 8:15 a. m., she was operating her Chevrolet automobile, at a speed of approximately twenty miles per hour, in Dryades Street in the general direction of Canal Street. When she reached the intersection of Sixth Street, she decelerated to about fifteen miles per hour, glanced to her left and noticed a truck approaching a “safe distance away.” She then looked to her right before entering the intersection. She had traversed the center thereof when her attention was attracted by “the screeching of brakes”, which caused her to turn her head in time to see the right front fender of defendant’s truck collide with the left front portion of her car.

Jerry Boudreaux, age twenty-four, asserted that moments before the accident he was operating his vehicle to the left of center in the roadway of Sixth Street, moving towards the river at a speed of approximately twenty miles per hour and as he neared the intersection, he decelerated to twelve or thirteen miles per hour. A large tree and a building was located on the corner of the intersection to the defendant’s right, which obstructed his vision into Dryades Street and which placed that corner in the category of what has been designated in our jurisprudence as a “blind corner.” He then more pertinently explained “I had my foot riding the brake going to the corner, I was slowing down. When I got to the building, I couldn’t see too good. I had to get almost out into the intersection before I could see anything. I kept holding my foot on the brake. The tree — I had to get a little farther. By the time I was in the intersection * * * and I was looking around * * * I saw Mrs. Druilhet’s car coming at me. That is when I jammed my brake * * *. She was on me already hitting me from the side. * * * It was a heavy blow, it swung my truck completely around. * * * facing straight down Dryades.” Pie fixed the location of the collision “a little to the left of the center of Sixth Street and about in the center of Dryadeshe then endeavored to explain that when he first noticed plaintiff’s car it was approximately twenty-five to thirty feet from Sixth Street and that his truck, at that moment, was three or four feet removed from the point of impact. In response to interrogation he laboriously asserted that he could not explain nor account for the fact that he had testified that his truck travelled only three or four feet while plaintiff’s vehicle travelled twenty-five or thirty feet to the point of impact, when it was conceded that “skid marks” impressed by the tires of defendant’s truck upon the surface of the roadway of Sixth Street measured twenty-eight feet, therefore, he was at least that far from the point of impact when he first noticed the plaintiff’s car.

There was only one disinterested eyewitness to the accident, Clinton Fuller, who resided in Dryades near the corner of Sixth Street. He testified, on that morning, he was standing near the corner and observed the approach of both vehicles before the accident occurred. He explained that the plaintiff entered the intersection first at a speed of about fifteen or twenty miles per hour, and had traversed two-thirds thereof when defendant’s truck, moving at a speed of between twenty-five and thirty-five miles per hour, suddenly applied the brakes thereof, causing it to “skid” into plaintiff’s automobile; both vehicles stopped on a forty-five degree angle facing into Dryades Street.

Walter J. Vollenweider, brake inspector employed by the New Orleans Police Department, testified that he, together with Officers Wilson and Gustafson, arrived at the scene of the accident fifteen minutes after its occurrence and predicated upon the “skidmarks” of twenty-eight feet impressed by the tires of defendant’s truck upon 1he roadway of Sixth Street, he calculated its speed to be twenty-five or thirty miles per hour; however, he carefully pointed out that the “skidmarks” would have been in excess of twenty-eight feet if the collision had not stopped the forward movement of the truck and, therefore, any addition to the above length of the skid-marks would indicate that defendant’s vehicle was moving at a greater rate of speed than twenty-five or thirty miles per hour.

Plaintiff contends that she was operating her car in a careful manner and insists that the sole cause of the collision was the negligence of defendant in operating the truck at an excessive, unlawful rate of speed; his failure to maintain a proper lookout and to accord the vehicle approaching the intersection from his right the right-of-way.

Defendant, in his endeavor to resist the foregoing assertions, maintains, in substance, that the plaintiff was negligent in driving her car at an excessive rate of speed and in failing to maintain both a proper lookout and control of her vehicle.

We have carefully analyzed the actions of the plaintiff and are of the opinion, as was the trial judge, that she was entirely free of negligence. The only evidence appearing in the record relating to the speed of plaintiff’s vehicle, fixes it between fifteen and twenty miles per hour, obviously plaintiff was not operating her vehicle at an excessive rate of speed as defendant maintained. The record likewise reveals that the plaintiff was carefully driving in the most favored street and only entered the intersection, from defendant’s right, after observing his truck “a safe distance away.” At one point in plaintiff’s testimony, under cross-examination, she was confronted with a sketch of the intersection and, in response to interrogation by defendant’s counsel, asserted that she was moving fifteen miles per hour when she arrived at a point marked “x” on the sketch and that the defendant’s truck was more than one half block removed from the intersection at that moment. A fair evaluation of this isolated testimony convinces us that the plaintiff was not thoroughly oriented to the sketch when she was interrogated as to the relative position of the vehicles a split second before the accident occurred and, for that reason, we are not impressed thereby. On direct and cross examination she said three times that when she reached the intersection she noticed the truck approaching “a safe distance away.”

Therefore, the only question posed for our consideration is one of fact and that is whether defendant’s negligence was the proximate cause of the accident?

The trial judge, in his written reasons for judgment, resolved the answer to this question in the affirmative and our careful examination of this evidence fails to disclose any reversible error in his conclusion.

The whole tenor of the record reflects the very evident fact that the defendant drove into this heavily trafficked intersection at an excessive rate of speed without ever having observed, from his right, the entrance therein of plaintiff’s vehicle until it was too late for him, by virtue of a sudden application of the brakes, to avoid the collision. Therefore, defendant’s negligence, in this respect, was the proximate cause of the accident.

We believe that the award by the trial judge of $2,102.38 to Roland Druilhet covering the doctor and hospital bills, Mrs. Druilhet’s loss of earnings and property damage incurred by the family automobile is eminently correct. He properly disallowed a claim of $500 for future medical treatment since the plaintiffs failed to offer sufficient proof to substantiate the validity thereof.

With respect to the personal injuries incurred by the plaintiff as a result of the collision, the record reveals that she was severely injured. Prior to the accident she was a normal, healthy person, in good phy-

sical condition commensurate with her age. The record further reflects that following the collision she was unable to move and was carried from her automobile to an ambulance and then removed to the Touro Infirmary. Upon arrival there a sedative was administered to allay her pain. She was hospitalized for twenty-three days and the pain was so excruciating that she was under sedation most of the time. When she returned home she was confined to bed for two weeks and continued to suffer and was unable to sleep without sedatives.

In consequence of her injuries she was unable to resume her employment from June 22, 1954 until March 15, 1955, when she was able to work only for short periods and then earned less than one-half of her former wages. It is now painful for her to perform any housework and she reiterated that she has never been free of pain since the accident.

The attending physician, Dr. James T. McQuitty, testified that when he first visited Mrs. Druilhet, she was complaining of severe pain associated with her chest, abdomen, pelvic region and muscles. An examination by him and of the X-rays which had been taken of plaintiff’s injuries revealed that she suffered fractures of the 3rd, 4th and 5th ribs of the posterior axillary line; fractures of the 3rd, 4th, 5th and 6th ribs in the mid axillary line, together with a fracture of the sacrum just below the iliac joint; a fracture of the superior margin of the pubis; multiple bruises, abrasions and contusions of the back, side, lower extremities, the left foot and shock.

Dr. McQuitty stated that fractures of the ribs are very painful because they cannot be immobilized since they are essential structures in respiration and the ribs necessarily move during the course of breathing. He also asserted because of the injury to the sacrum and pubic bone that she will suffer pain while walking or moving generally and in her marital relations.

She possessed a mild arthritic complaint prior to the accident and as a result of the trauma that condition is now aggravated which causes her to suffer continuous pain. On the day of the trial plaintiff had not as yet been discharged from treatment by her physician.

In consideration of the foregoing injuries we are of the opinion that the $4,-000 awarded Mrs. Druilhet by the court below is inadequate and that the quantum should be increased to the sum of $7,500 which we believe to be adequate only insofar as money may make it so.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded Mrs. Druilhet from the sum of $4,000 to $7,500. In all other respects the judgment appealed from is affirmed.

Amended and affirmed.

      . He conducted his business under the trade name of L. & S. Electric Company.

      . A one-way paved street.

      . A two-way black topped street.

      .Plaintiff disputes this speed and insists that defendant’s truck was moving between thirty-five and fifty-five miles per hour.

      . Dryades Street entrance to intersection.

      .LSA-R.S. 32:237 provides that when “two vehicles approach or enter an interaction at approximately the same time, T^e driver approaching from the right shall have the right of way.”

      . She was 52 years of age at the time of the accident.

      . $80 per month. She had formerly earned $170 per month.

      . The fractures of throe of the ribs were multiple;


text:
    Harold F. ROBINSON, Howard Sparks and William England v. Herbert ALLEN.
    No. 20616.
    Court of Appeal of Louisiana. Orleans.
    May 14, 1956.
    Rehearing Denied June 25, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      Frederick G. Veith, New Orleans, for defendant-appellant.
    Polack & Rosenberg, New Orleans, for plaintiffs-appellees.
   McBRIDE, Judge.

Plaintiffs, three in number, are the owners of certain lots with improvements fronting on Colapissa Street in Square 447 of the Seventh District of New Orleans. They brought this suit for the purpose of having a judicial fixing of the boundary line between their property and Lot “K” of said square which fronts on Holly Grove Street. Their petition alleges that Herbert Allen owns said Lot “K” and he is named as the defendant in the suit. The matter proceeded to trial as though Herbert Allen did own Lot “K” and was the proper defendant, and ultimately there was judgment which, among other things, established the boundary line in accordance with the report and plan submitted by the surveyor who had been appointed by the judge to inspect the premises involved and to make a survey thereof. Herbert Allen has appealed from that judgment.

On Herbert Allen’s behalf there was filed in this court an exception of no cause or right of action which sets forth that Herbert Allen does not now own nor did he ever own the property described as Lot “K” in Square 447 of the Seventh District. There is some contention made as to whether we are privileged to consider this exception which was filed Only on appeal, but in view of our conclusions as to what the law is with reference to an appellate court’s right to notice whether the proper parties are before it, we will make no further reference to the exception. If Herbert Allen is not the owner of Lot “K” of said square, he is not the proper defendant and we cannot overlook that fact. It is a well-settled principle of law that where the absence of necessary parties is apparent, the court may take notice of' that circumstance on its own motion and refuse to proceed further with the case. De Hart v. Continental Land & Fur Co., Inc., 196 La. 701, 200 So. 9; Bologna Bros. v. Stephens, 206 La. 112, 18 So.2d 914.

Plaintiffs instituted the suit against Herbert Allen on the theory that whereas Lot “K” was acquired by Herbert Allen’s wife by purchase during the existence of the marriage between them, there is a legal presumption that the property is an asset of the matrimonial community and that Herbert Allen as its head and master is the proper person who is to be named as the defendant.

But the presumption that the property belongs to the community is rebutted by the record. According to copies of notarial acts in evidence, on December 19, 1925, Mrs. Elliot Lewis, divorced wife by first marriage of Leon Nathan and now wife of Herbert Allen, duly authorized, obtained a loan of $3,400 from Phoenix Building and Homestead Association, with said Lot “K,” measuring 30'6"0"' front on Holly Grove Street by a depth of 152', as security^ and to complete the transaction she executed the usual sale and resale of said property. The notarial acts contain the recitals that the property was sold, reacquired and mortgaged as the property of Mrs. Elliot Lewis, divorced wife by first marriage of Leon Nathan and now wife of Herbert Allen, duly authorized.

From an examination of the act of sale whereby Elliot Lewis Nathan Allen sold the property to the homestead association it appears that said Lot “K” was originally:

“Acquired by Mrs. Elliot Nathan, divorced wife of Leon Nathan, (as per judgment rendered on December 20, 1922, in the proceedings No. 144,635 of the Civil District Court for the Parish of Orleans) by purchase from John J. Thomas, by act passed before Frank P. Krieger, Notary, on May 25th., 1923, Reg. C.O.B. 362, folio 409.”

This recital of the original acquisition of the property shows beyond question of doubt that the borrower was the divorced wife of Leon Nathan, as per a judgment rendered on December 20, 1922, in the proceedings No. 144,635 of the Civil District Court for the Parish of Orleans when she purchased the property from John J. Thomas on May 25, 1923. Having acquired the property before her marriage to Herbert Allen, it was her own separate and para-phernal property and when she brought said property into the marriage with Herbert Allen, it did not lose its character of separate property. LSA-C.C. art. 2334. Nor did the sale by Elliot Lewis Nathan Allen to the Phoenix Building and Plome-stead Association and the resale to her by that association change the status of the property, which was the subject of the loan transaction, from paraphernal to community property. Mayre v. Pierson, 171 La. 1077, 133 So. 163.

It is true that in Mayre v. Pierson the deeds executed by the wife contained recitals that the property was sold, reacquired and mortgaged as the separate and para-phernal property of the wife under her separate administration and control, while the deeds before us in the instant case contain no such recital as to the property remaining the paraphernal property of the wife or that it was under her separate administration and control. But we do not believe that the absence of such recitals in the deeds we are considering makes any difference whatever, and our opinion is that notwithstanding that Mrs. Elliot Lewis Nathan Allen sold her property to the homestead and then reacquired it for the purpose of borrowing $3,400 with the property as security, this did not change the character of the property from paraphernal to community or common property.

Were we to hold that the property became an asset of the community of ac-quets and gains because of the omission of any stipulation that it was intended by the borrower that the property was to retain its paraphernal character, such a holding would be tantamount to saying that a wife could by an act of sale make a transfer of her paraphernal property unto her husband. In this state such sale, except in the cases and for the consideration as provided for in LSA-C.C. art. 2446, is illegal. See Rush v. Landers, 107 La. 549, 32 So. 95, 57 L.R.A. 353. And as one spouse is forbidden to acquire the property of the other spouse by direct sale, he cannot do it indirectly through a third person interposed. Vicknair v. Trosclair, 45 La.Ann. 373, 12 So. 486; Parnell v. Petrovic, 14 La.Ann. 601.

Thus being satisfied that Lot “K” in Square 447 of the Seventh District of New Orleans is the separate and paraphernal property of Mrs. Elliot Lewis, divorced wife by first marriage of Leon Nathan, and now the wife of Herbert Allen, we can only say that the plaintiffs were in error in impleading Herbert Allen, the husband, as the defendant and no adjudication by us on the record in its present shape could affect the property. While the owner of an estate has the right to compel a fixation of boundaries between his estate and contiguous property, the law contemplates that the action to fix the limits shall be brought against the owner of the other estate. See LSA-C.C. art. 823 et seq.

At one stage of our jurisprudence it was fatal to implead the wrong defendant and the penalty was the dismissal of the action. See Siragusa v. Illinois Cent. R. Co., 152 La. 745, 94 So. 376; Succession of Todd, 165 La. 453, 115 So. 653. However, the modem trend of liberality in upholding substantive rights instead of subtle technicalities is to allow amendments to pleadings that fail to state a cause of action due to insufficient allegations. The Supreme Court has remanded cases to the lower court in order that necessary parties may be impleaded, even where no exception of non-joinder was interposed, in order to render substantive justice and to avoid a multiplicity of suits. See De Hart v. Continental Land & Fur Co., Inc., supra; Bologna Bros. v. Stephens, supra; Douglas v. Haro, 214 La. 1099, 39 So.2d 744.

Therefore, we believe that this case should be remanded to the lower court for the purpose of making the proper party defendant and for retrial, and we shall model our decree in accordance with the decrees of the Supreme Court in the three cases last mentioned above.

For the reasons assigned, the judgment appealed from is reversed and set aside, and the case is remanded to the civil district court for further proceedings consistent with the views herein expressed and in accordance with law. The right is reserved to all parties at interest to file whatever pleadings they may deem appropriate. Costs of this appeal shall be paid by the plaintiffs; all others are to await the final determination of the case.

Reversed and remanded.