author: MOISE, Justice. FOURNET, Chief Justice

text:
    232 La. 386
    August DUFRENE et al. v. James J. TRACY et al.
    No. 42699.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Dissenting Opinion Feb. 26, 1957.
    Rehearing Denied April 1, 1957.

      Coe, Nowalsky & Lambert, Edward R. Schowalter, New Orleans, for defendants-appellants.
    Pertuit, Gemeinhardt, Johannesen & Roberts, by W. F. Gemeinhardt, New Orleans, for plaintiffs-appellees.
   MOISE, Justice.

The defendants appeal from a judgment of the district court, which set aside a power-of-attorney, coupled with an interest. The power provided that the defendants vindicate title to property. The contract contained a suspensive condition, and at the time of its execution there was neither ownership nor possession of the immovable. Plaintiffs’ suit is predicated on alleged failure of performance.

The defense and reconventional demand aver the following:

(1) That there was no failure to perform
(2) That defendants were hindered from performing
(3) That there was, no putting in default before the termination of the power-of-attorney
(4) That the power-of-attorney is coupled with an interest
(5) Plaintiffs’ cause of action has prescribed by the passage of five and ten years. This plea was filed in our Court for consideration on this appeal.

Our learned brother below found in his reasons for judgment, the following:

“In June, 1941, Tracy & Neuhauser, a law firm, examined the public records in St. Charles Parish and discovered that plaintiffs might have an interest in 293 acres of trapping land. Tracy located plaintiffs, advised them of their potential interest, and obtained the power-of-attorney to recover the land, for which they were given a half interest in the land for ‘legal services rendered and to be rendered.’ August Dufrene, one of the plaintiffs, was 55 years of age and was in the hospital, where his signature was obtained by making his mark; Mrs. Josephine Du-frene Ardoyne, another plaintiff, is a woman with little or no education; and John Candies, Jr., a nephew, a young man, a recent graduate of St. John High School, left for the military service shortly after the execution of the power and returned in 1944. Defendants had not previously known or represented the plaintiffs.
“Shortly after the execution of the power Tracy wrote to the law firm of Milling, Godchaux, Saal & Milling (represented by Mr. Benson) stating that Tracy’s firm represented plaintiffs and he would like to discuss an adverse suit that Benson’s firm had pending involving the property. The Milling firm heard no further from Tracy.
“Mr. Edward B. Ellis, another prominent attorney, likewise had a suit pending in connection with the property, which was dismissed in 1945 for want of prosecution. Mr. Ellis testified that the only contact he had with Tracy was about eight months before the present suit was filed (in 1955) when Tracy called on him to get a history of the litigation. Tracy testified that he spoke to Mr. Ellis on occasions long prior thereto.
“Following the execution of the power in 1941, Tracy said he made efforts to locate plaintiffs’ family tree or gene-ology, but plaintiffs did not cooperate with him. Tracy employed the services of one Schouest, an ice cream peddler and electrician, who lived in the section where the Dufrenes came from, and who was generally familiar with the Dufrene families. Plaintiffs denied that they refused to cooperate with Tracy, contending they never heard from him. In the meantime, Tracy obtained an executive position with one of the agencies of the United States Government, after which he maintained no office of his own, though he testified he had office space with a prominent law firm; but no telephone was listed in his name in the telephone directory. Other than the testimony of Tracy that he tried to get information shortly after the contract was entered into in 1941, Tracy did nothing further until March or April, 1955, when, following a written notice to him by plaintiffs’ new attorneys that his power-of-attorney was cancelled, he sought the assistance of the law firm of Coe, Nowalski & Lambert, which resulted in the filing of a petitory action by Tracy for the recovery of the land.
“Tracy testified that he practiced law on weekends even while employed by the federal agency, and that the public records involving plaintiffs’ land were so confused he didn’t know what to do for plaintiffs.
“It is apparent from the evidence that, after he obtained the contract in 1941, Tracy did practically nothing. Neuhauser died and Tracy obtained his interest in the power. It was only in 1954, when oil was discovered and Tracy was notified of the termination of his power and the employment of other counsel, that Tracy bestirred himself and obtained assistance in April, 1955 from the law firm presently representing him here.”

With all humility we say that in any court of justice where the rights of litigants are at stake we cannot deal with mere legal abstractions or facts that are supposed. We know of no rule for construing the extent of powers other than that given by the language of the instrument which confers them, taken in conjunction with the purposes for which they were conferred. LSA-C.C. Article 1901. A pertinent part of the power-of-attorney herein involved reads:

“ * * * And the said constituents further declare that sale and transfer of Fee Simple interests and mineral rights, title and interests, is made in consideration of the professional services already rendered by the said Attorneys-in-fact herein and hereunder, receipt of which is hereby duly acknowledged by said constituents, and in further consideration of the professional services to be rendered by said Attorneys-in-fact, in bringing whatever action or actions they may see fit or proper, in order to secure judgment in favor of said constituents, against any and all adverse claimants of or to said property and its mineral resources, and in vindication of the rights of said constituents, and in further consideration of said attorneys-in-fact paying any and all court or other costs that may be necessary in said suit or suits, claim or claims.
* * * * * *
“And generally to do and perform all and every other act, matter and thing whatsoever, as shall or may be requisite and necessary, touching or concerning the affairs, business and concerns of the said constituents as fully, amply and effectually, and to all intents and purposes with the same validity, as if all and every such act, matter or thing, were or had been particularly stated, expressed, and especially provided for, or as they the said constituents could or might do if personally present; also with full power of substitution and revocation; and the said constituents hereby agree to and do ratify and confirm all and whatsoever the said attorneys shall lawfully do or cause to be done by virtue of this act of procuration.”

The trial judge’s reaction to the facts is manifested in the following statement taken from his reasons for judgment:

“The evidence convinces me that the services rendered by defendants prior to the execution of the power-of-attorney in 1941 were services rendered solely in their own interest, even before they knew or represented plaintiffs, solely to determine whether or not it was worth their while to undertake the employment and advance the costs necessary to accomplish the redemption of the land for the clients. Thereafter, no service of any consequence was performed until after the termination of the power-of-attorney in 1954.”

The above findings were made after the reception of parol evidence. The trial judge was correct in admitting parol evidence to show what services were rendered prior to the confection of the instrument, since the instrument was ambiguous to the extent it left the parties in doubt as to what was intended. An exception to Article 2276 of the LSA-Civil Code was apparent. Holloway Gravel Co., Inc., v. McKowen, 200 La. 917, 9 So.2d 228; Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363; Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367; Plaquemines Oil & Development Co. v. State, 208 La. 425, 23 So.2d 171; Mire v. Haas, La.App., 174 So. 374. See also LSA-C.C. Article 1956.

The contract in this case lives and breathes the fact that the obligations therein imposed are conditional. The right is merely a litigious one, which, under Article 3556, Section 18, of the LSA-Civil Code, cannot be performed without suit. In the so-called transfer made in the power-of-attorney there was neither the possession nor the ownership in the property involved, because transferee had neither. The obligation being conditional, Article 2021 of the LSA-Civil Code applies. Conditional obligations are made.to depend upon an uncertain event. If the obligation is not to take effect until the event happens it is a sus-pensive condition. Article 2043 of the LSA-Civil Code provides the obligation contracted on a suspensive condition is that which depends on a future and uncertain event. The obligation cannot be executed until after the event.

The event in the present controversy was for the recovery of an immovable for the client, which event did not ripen into existence although fourteen years elapsed. Defendants are now attempting to acquire rights to property on negligent circumstances which were caused through their own fault and omission to do what they obligated themselves to do.

On the subject of suspensive conditions the United States Supreme Court speaks with authority in the case of City of New Orleans v. Texas & Pacific Railway Co., 171 U.S. 312, 18 S.Ct. 875, 883, 43 L.Ed. 178, as follows:

“The suspensive condition under the Louisiana Code is the equivalent of the condition precedent at common law.
“ * * * Where the undertaking on one side is in terms a condition to the stipulation of the other, — that is, where the contract provides for the performance of some act, or the happening of some event, and the obligations of the contract are made to depend on such performance or happening, — the conditions are conditions precedent. * * * The nonperformance on one side must go to the entire substance of the contract and to the whole consideration, so that it may safely be inferred as the intent and just construction of the contract that, if the act to be performed on the one side is not done, there is not consideration for the stipulations on the other side. See Cutter v. Powell, 2 Smith, Lead.Cas. [7th Am.Ed.] 17, and notes.” See also Cornell & Wife v. Hope Insurance Co., 3 Mart., N.S., 223, wherein it is stated with respect to sus-pensive conditions:
“ * * * They are recognized and provided for by our system of jurisprudence, and by every other that has in view the ordinary transactions of men. The obligation is conditional, when it depends on a future or uncertain event, says our code. The event then must be shewn, to make the obligation binding on the party against whom it is presented. For until it takes place, he is not bound to perform what he has promised. C.Code, 272, Art. 68. “There is an exception to this rule in regard to the dissolving condition. But in relation to all others it is true, and it is a matter of no moment whether we say the obligation is suspended until the condition is performed —or that the performance of the condi1 tion must precede the execution of the obligation.- C.Code 274, Art. 81 & 3. Toullier, droit civil Francais. liv. 3, tit. 3, chap. 4, no. 472. Pothier, traite des ob. no. 202.”

In Article 1897 of the LSA-Civil Code we find the following expression of law applicable to this case:

“The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. * * * ”

The contract did not express a time limit, but all reason dictates that defendants were expected to perform within a reasonable time. Fox v. Doll, 221 La. 427, 59 So.2d 443.

“In any event, when no time for performance of a contract is stipulated, a reasonable time is implied, to be determined by the circumstances of the particular case. See LSA-Civil Code, Article 2050; Lindsey v. Police Jury of Parish of Point Coupee, 16 La.Ann. 389; Bartley v. City of New Orleans, 30 La.Ann. 264; H. T. Cottam & Co. v. Moises, 149 La. 305, 88 So. 916. Moreover, the subject agreement, if serious, by its very terms necessarily implied that it was to be promptly consummated. * * * ” Guzzo v. Liggio, 224 La. 313, 69 So.2d 357, 358.

The present subject matter is serious, and the defendants, being officers of the Court, should have promptly consummated their contract.

“The attorney in fact is bound to discharge the functions of the procuration, as long as he continues to hold it, and is responsible to his principal for the damages that may result from the non-performance of his duty.” Article 3002, LSA-C.C.
“ * * * An agent must devote himself to the interest of his principal and act for him with the same care that an ordinary man bestows upon his own affairs. The duty is of such a nature that it is not easily brought within the strict definition of a rule.” Cuggy v. Zeller, 132 La. 222, 61 So. 209, 211.

It follows, therefore, that when defendants did not perform within a reasonable time — it is beyond any man’s comprehension to say that fourteen years is a reasonable time — the suspensive condition was unfilled, and the contract was without a cause and could have no effect. It is stated in Article 1893 of the LSA-Civil Code:

“An obligation without a cause, or with a false or unlawful cause, can have no effect.”

Defendants contend that before plaintiffs were entitled to institute this proceeding they should have placed defendants in default under Article 1912 of the LSA-Civil Code.

Deliberate action on the part of the defendant Tracy, such as not being listed in the New Orleans City Telephone Directory, and accepting work with the Veterans Administration from 1944 to 1949, constituted an active disregard of the power-of-attorney relationship into which he had entered in 1941. Article 1932 of the LSA-Civil Code reads:

“When there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.”

The trial judge’s following statement is appropriate:

“Tracy contends it was the duty of plaintiffs to locate him, yet he had no office, no . telephone, and had practically abandoned the practice of law or did it as a side-line to his government position. It was not incumbent upon plaintiffs to play detective and ferret Tracy out, notwithstanding Tracy was listed in the City Directory and was still listed by the State Bar as authorized to practice. These are matters with which laymen are not expected to be familiar. To the contrary, it was Tracy’s duty to energetically and aggressively prosecute and fulfill his obligations and seek out and inform plaintiffs. Plaintiffs could have been located by Tracy with little effort.”

Defendants filed a plea of prescription based on Articles 3542 and 2221 of the LSA-Civil Code in this Court. They argue that plaintiffs are precluded from bringing this action to rescind the contract of mandate by the prescription of five and ten years.

The judicial sense supporting the common sense of the State is against defendants’ contention. The case of Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598, 600, is apposite, although the facts are different. The following statement is concordant :

“For the negative it is said that the rule, ‘Contra non valentem agere no currit prescriptio,’ is not recognized in this state; and the case of Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175, is cited. In that case the court recognized that this rule did apply to certain cases exceptional in their features. A further exception must be recognized, we think, in a case like the present, where the inability of the plaintiff to act was brought about by the practices of the defendants. Otherwise the defendants would be profiting by their own wrong — a thing inadmissible in law. * * *”

In this case, we have an officer of the Court dealing with clients ignorant of legal procedure. He owed a most solemn duty to them, and after allowing fourteen years to elapse without making any attempt to perform his obligation, he cannot now claim the benefit of his own wrong. See, Landry v. L’Eglise, 3 La. 219. The plea of prescription is, therefore, without merit.

The solution of this case demanded a careful analysis of the facts and the law. A judge faced with a determination of a controversy, such as the instant matter, gives a penitent prayer of old, which reads :

“God give me the patience to accept that which cannot be changed, give me the courage to change that which can and should be changed, and, above all, give me the wisdom to know which is which.”

For the reasons assigned, the judgment of the district court is affirmed at defendants’ costs.

FOURNET, C. J., and PONDER and SIMON, JJ., dissent.

FOURNET, Chief Justice

(dissenting).

This is a suit to have declared null and void, for failure of consideration, an instrument by notarial act executed by plaintiffs on June 3, 1941, wherein they named and appointed as their attorneys in fact the law firm of Tracy & Neuhauser, giving them broad and discretionary powers, and also to have this act, as well as all assignments thereunder, cancelled from the public record. In this instrument the plaintiffs did “sell, assign, transfer * * * and deliver/’ to these attorneys "an undivided One-Half (14) Fee Simple Interest in and to" certain property located in St. Charles Parish for the recited consideration “of the professional services already rendered * * * and * * * to be rendered by said Attorneys-in-fact * * (Emphasis supplied.)

According to the record, the real motive for the execution of the contract by the plaintiffs was the vindication of the title to the property, and inasmuch as these attorneys appointed by them for that purpose actually failed to carry out the duties under the mandate, the cause for the execution failed (Article 1823 et seq. of the Revised Civil Code), and is therefore subject to the resolutory condition (Article 2035 et seq. of the Revised Civil Code), which is prescribed under the provisions of Article 2221 declaring that “In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by (a) particular law, that action may be brought within ten years.”

“Thus it may be seen that the lawmakers in their wisdom have deemed it to the interest of society to interpose a statute of repose by fixing a time limit (10 years), after which the parties at interest, by their silence and inaction, are conclusively presumed to have acquiesced in and ratified the act, and to have renounced such right as they may have had to attack it.” Fried v. Bradley, 219 La. 59, 52 So.2d 247, 254. See, also, Pitre v. Peltier, 227 La. 478, 79 So.2d 746.

In the Bradley case we also pointed out that “Under the jurisprudence of this State the applicability of these two articles [2221 and 3542] has been restricted to those nullities that are not in derogation of public order and good morals. In considering them this Court has differentiated between nullities of that type and those established in the interest of individuals, and has narrowed the applicability of the articles to the latter class of nullities.” See Article 2031 of the Revised Civil Code.

Since such procurations as are involved in this case are lawful, they cannot be said to be contra bonus mores, that is, repugnant to good morals, in themselves unless this court were to declare it against public policy to permit an attorney to take advantage of his own failure to perform an obligation to his client. And inasmuch as there has been no pronouncement by this court to that effect, I must respectfully dissent.

      . The record discloses that the defendants themselves opened the doors for the admissibility of parol evidence when their own attorney propounded the following question to witness for the defendants: “Q. Do you know whether he did any work before June 3, 1941?”

      . The property thus sold and transferred was an undivided half of the undivided half interest then owned by plaintiffs in the S/2 of Sec. 18, T. 15 S. R. 21 E., Southeastern Land District, containing about 295.36 acres, more or less

      . • Article 1899 provides that if the obligations to be performed are either expressly or impliedly promised to be given at future periods and they fail, then the obligation depending on them will cease also.

      . Article 2047 provides that “In all cases the dissolution of a contract may be demanded by suit or by exception * * It is only when the resolutory condition is an event depending on the will of either party that the contract is dissolved of right.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    Wilhelm MIILLER v. Captain Peter VOGT et al.
    No. 20844.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.

      Fred S. Bowes, Gretna, for plaintiff and appellee.
    Elmer D. Flanders, New Orleans, for defendants and appellants.
   McBRIDE, Judge.

This suit is for damages for an alleged assault and battery committed by defendant whose defense is that plaintiff provoked the difficulty by calling him a vile epithet. Plaintiff recovered judgment for $1,300; defendant has appealed.

The scene was the Port Ship Service Building, which is situated on the riverside of the levee at Arabi, St. Bernard Parish. The time was about 6:10 a.m., January 11, 1955, when plaintiff, who is a boatman for Port Ship Service, was reporting for work. Seated in the building were defendant, Peter (or Stanton) Vogt, and two other river pilots, Henry R. Vogt and William A. Post. Also present were Lawrence Serpas, an employee of the Ship Service, and Harold Olsen, a coast guardsman. Other persons may have been present in the building.

The above-named persons heard several knocks, whereupon Capt. Peter Vogt, the defendant, arose and went to the door, and after glancing through the glass window thereof resumed his seat. The person on the outside who proved to be plaintiff, then began uttering a volume of choice waterfront profanity. Whereupon Serpas, nicknamed “Finke,” opened the door and admitted plaintiff who said to Serpas: “Why the hell you don’t open the door?” There is a sharp dispute as to what else was said in the room, but, at any rate, defendant walked over from eight feet away and with his clenched fist struck plaintiff a most violent blow in the face. As defendant put it: “I nailed him with my right hand.”

Plaintiff banged on the door several times and began indulging in the profanity when the door was not promptly opened. He admits he used one of the vilest of expressions, but explains that he had reference to the door and that what he said was: “Open the — door.” Defendant maintains that the plaintiff was not referring to the door at all but that he said: “Open the door you — .” The remark, whatever it was, led to the attack on plaintiff.

Plaintiff maintains he entered the room with hands tucked in his pockets and said to Serpas “Why the hell you don’t open the door?” to which Serpas replied “Dutch, I didn’t know you were out there,” and then defendant struck him and his glasses fell to the floor. According to plaintiff he was rendered momentarily stunned, but he states upon regaining his senses he asked defendant “Why did you do that?” and that defendant answered: “That is for you calling me a — .”

Defendant says he did not open the door because he did not recognize the party on the outside. It was then Müller began the profanity, and he thought Miiller’s vile remark was aimed at him because he had looked through the glass in the door. Capt. Vogt claims he asked Müller upon the latter’s entry into the room whether the words “Open the door you — ” referred to him and that Müller replied “Yes, I mean you” motioning with his finger. Defendant admits letting go with the blow to plaintiff’s face.

The other persons named above, except Olsen, appeared in court as witnesses. The testimony of Olsen, who was about to leave for Coast Guard duty in Texas, was taken by agreement before a notary public and his depositions fully corroborate plaintiff. His statement is that plaintiff addressed the obscene remark to the door and did not refer to defendant or any other individual in the room.

There is also substantiation for defendant’s evidence. Capt. Henry R. Vogt and Capt. Post insist the blow was truck after defendant had inquired if plaintiff intended the remark for him and plaintiff had replied in the affirmative.

Serpas was called to the witness stand by plaintiff. The witness’ sense of hearing is to some extent impaired. However, Serpas said he heard the banging on the door and saw Capt. Vogt arise and look through the glass and then return to his seat. He admits he opened the door and that Müller entered, but when asked “Then what happened?” answered: “Well I didn’t see anything; I don’t know what happened.” He denied that he saw defendant punch Müller. At this point plaintiff’s counsel stated: “Mr. Serpas, I warn you that I intend to contradict your testimony.” Serpas frankly admitted he “didn’t want to get mixed up in this case,” and there is no doubt the witness could have been helpful but was not so inclined. What little testimony he gave is unimportant, except it might be mentioned that at one point Serpas said he heard Capt. Vogt ask plaintiff “Are you referring that to me?” but that he “couldn’t make out the rest.” The trial court in his reasons for judgment ■said Serpas’ “demeanor and testimony were such that he was not entitled to any credibility” and we agree.

The record indicates that some bad feeling previously existed between Capt. Vogt and Müller. On two prior occasions the men engaged in argument, once when Mül-ler complained of Capt. Vogt’s boat causing large swells and again when Müller refused Capt. Vogt the use of a telephone. Whether any ill feeling as existed between the two as a result was one of the factors contributing to the attack is not shown, but we suspect that it may have had something to do with the affair.

It is argued on behalf of plaintiff that under the jurisprudence of the State the mere use of abusive words, however insulting and irritating, will not justify an assault and battery, and in an action for damages such provocation as may have been caused by the use of the words is to be considered only in mitigation of the damages.

On the other hand, it is contended on behalf of defendant that the jurisprudence is to the effect the plaintiff must be free from fault in order to recover damages for assault and battery, and the argument is advanced that the words the plaintiff used were extremely abusive and constituted sufficient provocation for the assault, and accordingly he is not entitled to a recovery.

No resort to the jurisprudence upon which each party relies need be made. Suffice it to say our opinion is that there was no justification for defendant’s attack and ■he is liable for such damages as may have been the result. There were only two disinterested witnesses, namely, Serpas and Olsen. Plaintiff and his witnesses are brother pilots and in addition to this defendant and Capt. Henry Vogt are brothers in the flesh. Serpas gave no testimony which could possibly assist the court in resolving the factual question presented and his statement that defendant asked plaintiff “Are you referring that to me” does not carry the ring of truth. It is strange that he heard nothing else. If the question had been asked if plaintiff had replied to defendant’s question and an answer given thereto, it seems certain Ser-pas would have also heard the answer.

Olsen, the coast guardsman, appears to have been entirely disinterested. He had no possible connection with either the pilots or the employees of the Port Ship Service, and we agree with the trial judge that his testimony, although it was not given in court, is entitled to considerable weight. Olsen is now stationed at Port Isabel, Texas. What he said fully corroborates plaintiff and bears out that there was no excuse for the wanton attack made on Müller. Thus plaintiff’s version of the altercation is borne out by what seems to be the best evidence which emanated from the only disinterested witness.

By the record it is shown that plaintiff is a man 52 years of age, stands in height and weighs about 178 pounds; defendant’s age and physical condition are not shown, but is was conceded by counsel that he is in his forties and is of a well-proportioned physique. Under these circumstances, it is hard for us to believe that if Capt. Vogt had first accosted Müller about the remark that Müller would have pointed his finger at Capt. Vogt and answered “Yes, I mean you.”

In addition, a river pilot is held in high esteem and is treated with respect by a boat operator as in a military establishment. Pilots outrank the boat operators. Both plaintiff and defendant so agree. With this in mind we wonder if a boat operator would dare address a captain with the obscene words attributed to Müller.

Assuming for argument’s sake that Mül-ler, who was ouside, had called Capt. Vogt, who was inside behind the locked door, the vile name, we do not believe that it would be logical to hold that this would absolve Capt. Vogt from liability for the attack when plaintiff entered the room. But, at any rate, we feel reasonably certain that Müller did not direct the words at Capt. Vogt and that nothing was said or done by Müller after entering that would have been in justification of Capt. Vogt’s aggression.

Midler’s nose bled profusely. Capt. Henry Vogt was solicitous and said to plaintiff: “You need a doctor’s attention * * Both he and the defendant conveyed Müller to the Southern Baptist Hospital where he remained several hours. Dr. E. G. Walls saw him in the Emergency Room on the morning of the attack and his X-rays showed a fracture of the nasal1 bone and nasal septum, with dislocation of the nasal septum and Dr. Walls reduced the deformity under local anesthesia. He treated plaintiff on eleven different occasions thereafter or until February 25. Dr. Walls states he prescribed a nose guard and that some time during the period between January 14 and January 19 plaintiff,, while at work, neglected to protect himself with the nose guard and the septum was, again dislocated as the result of a bump, on the nose. The defendant’s present condition requires an operation, the cost of which is estimated at $250 or $300.

Dr. Walls when asked whether he could say that all of his treatment from January 11 up to the last time he saw Müller was for the first and original injury or whether it was for the injury caused by the subse--quent accident answered:

“It would be hard to separate the-two, since I was still treating him for the first injury when that came along.”

The defendant has already paid plaintiff’s, medical bills. No allowance should have been made for the cost of the future operation because we are not all sure that the operation is not required because of the subsequent accident rather than to Capt. Vogt’s blow. This would also be true ■ with respect to the headaches from which, plaintiff claims to now suffer.

Our conclusion is that an award-.' of $1,000 to Müller would be adequate and-1 fair remuneration for his humiliation, injuries and pain and suffering, and the-judgment appealed from should be accordingly reduced.

For the reasons assigned, the amount of the judgment appealed from is reduced to $1,000 and affirmed. Plaintiff-appellee is to pay the costs of this appeal.

Amended and affirmed.


text:
    Arthur J. LANDRY v. John R. HILL.
    No. 20812.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Lawrence Hennessey, Jr., New Orleans, for plaintiff and appellant.
    Byrnes & Wallace, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

On the evening of September 26, 1955, a special meeting of the membership of Carpenters Union, Local 1846, was held at the Union Hall located at 315 South Broad Street, New Orleans. The atmosphere prevailing was tense, for the record shows that the business agent of Local 1846 had been advised by telephone that trouble could be expected at the meeting which prompted the placing of a police detail of two officers outside the hall. Members of other locals, besides Local 1846, were present, as the matters discussed pertained to the Carpenters’ Council and involved not only the Carpenters’ Local but several other locals as well.

During the course of the meeting defendant, Hill, struck Landry, the plaintiff, a blow in the face with his right hand which rendered Landry unconscious.

By this suit Landry seeks to recover from Hill more than $25,000 as damages; the petition alleges that the assault was violent and unprovoked. Hill denies this and sets up in his answer that while at the meeting, he was approached by Landry and was informed that Landry’s presence there was for the purpose of acting as bodyguard and to see to it that Hill kept his mouth shut. Hill further averred that on previous occasions Landry had made threats against him, and during the meeting the plaintiff placed his hand in his pocket in such a manner so as to cause Hill to feel that the plaintiff was reaching for a weapon. The answer further alleges that as a result of abusive language, which the plaintiff used on this and previous occasions, and as a result of the menacing gesture on the part of the plaintiff, Hill struck the plaintiff and that his act of striking was the result of provocation by the plaintiff and the action of plaintiff in reaching to his pocket causing the defendant to feel he was armed.

Defendant assumed the position of plaintiff in reconvention praying for a judgment against Landry for $750 for the mental anguish caused him by Landry having placed him in fear of what appeared to be an imminent attack.

On these pleadings and contentions the matter was tried by a jury which returned a verdict dismissing both the main and the reconventional demands. A poll showed the jury voted 10 to 2.

In accordance with the verdict a judgment was rendered dismissing both demands and plaintiff only has taken this appeal.

Shortly before the meeting took place, Landry was in a barroom located approximately one block from the meeting place in company with Schexnayder and Rybiski drinking beer. Rybiski did not appear as a witness, but Schexnayder took the stand on behalf of defendant, and he states that Landry used “dirty names” in speaking of Hill, and further he said that Hill was not fit to hold office in the union. Schexnayder also attributed to Landry the remark that Landry was going to the hall and “stop some of that stuff.” Landry then left and Schex-nayder says the next thing he knew the fight had happened at the hall.

The record bears out that Landry was of a turbulent disposition when it came to union affairs. Breaud states that at an election of officers Landry stated that “Anybody on the Hill and Gravois ticket is a bunch of * * to which Breaud answered “I ain’t one of those guys,” whereupon Landry “swung on me.” Baye, appearing for defendant, stated that one evening previous to the night on which the meeting had been held, he was present in a store with Eilers and that Landry appeared in the store and the three had a conversation regarding Hill. Baye testified that Landry stated:

“ * * * Hill was a no-good, so and so, and he was causing a lot of trouble in the local union, and agitating things, and the best thing we could do was to get his card, take his card away from him, and run him out of town, and I said, ‘Landry, if you have any grievance with Mr. Hill, you ought to take it up with Mr. Hill.’ * * * ”

Hill states that he learned of these reports:

“ * * * it was told to me by Mr. Schexnayder, and it was likewise told to me by Mr. Baye that they were going to endeavor to take my card away from me if I didn’t keep my damned mouth shut, and if it was the last act of their lives, they were going to take my card, and I told them they were going to get an opportunity to take my card.”

Hill also states that he received reports that if “they weren’t able to take my card away, that they were going to run me out of town.”

Luttrell says he saw Hill punch Landry and that the former said: “I did my part.” Zinglersen states that he saw “Brother Hill drawing back to uncork one, to hit Landry.” Several other witnesses saw Landry falling as a result of Hill’s punch and others saw Landry lying on the floor in a pool of blood.

Hill reached the Union Hall first and was seated when Landry entered and proceeded up the aisle. Although sufficient seats for everyone were available and the rules of order used at the meetings require that each member should be seated, Landry chose to stand leaning against the wall a short distance removed from where Hill had taken his seat. Laborde states there was no argument before the blow was struck while Luttrell and Zinglersen heard loud voices; Marx said he heard some mumbling.

Covello was seated about four feet from Hill and he stated there was an argument between the two and he heard Landry say to Hill: “I am here as a bodyguard to keep your mouth closed.” When this remark passed, Covello says Hill arose from his seat and went up to Landry and told him “he wasn’t playing second fiddle to nobody, and to defend himself” whereupon Landry dropped his right hand to his pocket “and kind of raised up his left hand about waist high, and that’s when he was hit on the left side of the face, in the jaw.” Marx stated that Hill, before the altercation, had been seated with a notebook in his hand into which he made entries from time to time, and that after he heard the mumbling Hill got up and told Landry to defend himself and that Landry’s right hand went to his pocket and then Hill punched Landry.

Landry states that without cause or reason Hill arose, walked toward him and said “Are you a bodyguard here?” to which question Landry states he answered “Hell, no” and then turned toward the front of the hall and that all he remembers is “I was struck.”

Hill maintains he struck Landry in self defense. He declares that he met Landry on the stairs and he appeared as though he had been drinking and was calling another member of the union a “no good — .” Defendant says he admonished Landry to “quit passing remarks that had got back to me, and he had passed on several jobs, and I was ‘crooked’ and ‘no good.’ ” Hill insists he thereupon walked away from Landry, went into the hall, and found a seat, and about some ten minutes later Landry came into the building and “deliberately stayed right there” near him. He claims Landry informed him that he was a bodyguard “and he was there particularly to take care of me.” Hill states that after that remark he arose and went to Landry asking him who he was bodyguard for and that Landry answered: “I am pretty well able to take care of you.” It was at this juncture, according to Hill, Landry put his left foot forward and dropped his right hand to his pocket and fearing that he would be subjected to injury from a weapon that Landry might have carried, he struck Landry the one blow in the face.

Landry denied that he ever cursed or made abusive remarks regarding Hill or that he did anything at the meeting which could be construed as provocative or that he carried or reached for a weapon.

The welter of testimony in the case is indeed confusing, but the weight of it is sufficient to lead us to believe that there had been a pre-existing bad feeling between the two men which reached its climax at the union meeting on the night in question. It is hard for us to believe that Hill, without any cause at all, would have arisen from his seat, walked over to where Landry stood, and then without further ado struck Landry in the face and knocked him unconscious.

The jury heard the testimony of the plaintiff and the defendant and all of their witnesses and observed their demeanor while testifying, and if we were to- reverse the judgment it would entail our completely ignoring all testimony adduced on behalf of defendant and substituting in its place and accepting as true what Landry and his set of witnesses had to say. We do not believe that we should do this as there appears no manifest error whatever in the judgment. The jury having resolved all questions of veracity and factual situations adversely to plaintiff, we can only allow the judgment to stand.

The findings of juries on questions •of fact are accorded great weight and in a case where there is conflicting evidence .and a conclusion is to depend on the revolving of questions of fact, the burden is .on the appellant to show the reviewing •court, as a basis for reversal, that the judgment appealed from is manifestly erroneous. This principle is so well settled that it does mot require the citation of any authority in support thereof.

The jurisprudence is well settled -to the effect that there is no right of recovery for an assault'by one who is himself ■in the wrong, and in this case the evidence -the jury believe preponderates to the effect dhat the plaintiff was bellicose and looked for trouble, and this unquestionably led the defendant to believe that when Landry put his foot forward and reached into his pocket .that he was endeavoring to draw therefrom .a weapon with which to assault Hill. We believe Hill feared danger of an assault .and that this caused the retaliatory blow to be struck. Several of the witnesses from both sides say that one or both of Landry’s hands was still in a pocket or pockets as he lay on the floor unconscious.

Therefore, the judgment appealed from is .affirmed.

Affirmed.


author: JANVIER, Judge.

text:
    Vernile J. REEHLMAN v. Paul W. CALAMARI.
    No. 20818.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.

      Philip S. Finn, Jr., New Orleans, for plaintiff-appellant.
    G. Harrison Scott, New Orleans, for defendant-appellee.
   JANVIER, Judge.

This matter comes before us on appeal by plaintiff from a judgment dismissing his suit on a plea of prescription of one year.

Vernile J. Reehlman, the plaintiff, alleges that he loaned to defendant, Paul W. Calamari, without charge, his 19S0 Chevrolet automobile with the understanding that it was to be used by Calamari to attend “to some personal matters,” and that Calamari “promised return of the automobile the same night.” Plaintiff then alleges that, while driving the car “at a high rate of speed,” Calamari overturned and wrecked it and that, by reason of “defendant’s negligence and improper conduct, Petitioner has suffered loss and been damaged” in the sum of $866, representing the cost of repairing the automobile and loss of profits because of not being able to use the car while being repaired.

The damage is alleged to have been sustained on October 23, 19S4. The suit was filed on November 3, 1955. Defendant filed a plea of prescription of one year, contending that the suit is one in tort and that consequently the prescriptive period which is applicable is that which is provided by Article 3536 of our LSA-Civil Code. Plaintiff maintains, on the other hand, that the action is one for breach of contract and that consequently the prescription which is applicable is ten years as provided by LSA-Civil Code, Article 3544 for personal actions.

There is no doubt at all in our minds that the agreement of plaintiff to lend the car to defendant and defendant’s acceptance of the car to be used for his personal affairs constituted a contract such as is contemplated by Article 2893 of our LSA-Civil Code, i. e., a loan for use. That such a loan constitutes a contract is recognized in Article 1884 of our LSA-Civil Code which provides that:

“The mere use, or the mere possession of a thing, may be * * * the object of a contract.”

Where there is such a contract, the obligation of the user or borrower under Article 2898 of our Code is “to keep and preserve, in the best possible order, the thing lent.”

The obligation of a borrower is identical with the obligation of the depositary, and we note that, under Article 2937, the “depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.” And we note, too, that, as a result of Article 2938, the obligation of the depositary is “rigorously” enforced where the deposit has been made “by the request of the depositary,” or where it is made “solely for his advantage.”

In passing, we note that there is considerable opinion to the effect that before the word “rigorously” as we have quoted it, the word “more” should be inserted — in •other words, that the liability of the borrower or gratuitous depositary is to use in preserving the deposit the same diligence that he should use in preserving his own property and that where the deposit is made for his benefit, this obligation should be “more rigorously” enforced.

Counsel for defendant falls into error in believing that, because it is alleged that the automobile was damaged by negligence of the defendant, the action is one in tort. The action is obviously based on breach of contract. The allegation that there was negligence is not the allegation on which the suit is based. The allegation of negligence, as a matter of fact, is mere sur-plusage. All that the plaintiff was required to allege was that he had loaned the automobile to defendant and that defendant had returned it in a damaged condition. That would have put on defendant the burden of showing that the damage was sustained without fault on his part. This is recognized by Blashfield, Cyclopedia of Automobile Law and Practice. Vol. 7, sec. 4673, p. 661. Note the following statement:

“ * * * The return of the automobile by the bailee in a damaged condition raises a presumption of negligence, and makes a prima facie case, and puts the burden on the bailee, or justifies an inference of negligence when the damage is such as does not ordinarily occur without negligence * * * )i

The error of counsel for defendant in feeling that it has been decided that in such situation the action is one in tort results from an incorrect interpretation of the decision of the Court of Appeal for the First Circuit in Texas Mutual Insurance Co. v. Stutes, 84 So.2d 621, wherein the Court said that it was not necessary to determine whether the contract was a loan for use or a bailment because, in either event, the borrower or bailee would be liable for damage caused by his “neglect.” The Court did not say that the action was one in tort, merely that negligence in any event would render the borrower liable.

We ourselves discussed the question of what prescription would be applicable in such a situation in Carey v. Cooney, La. App., 163 So. 674. There we found that the contract was a “loan” and that the article loaned was a dragline bucket which was damaged by the borrower. We held that the applicable prescription was ten years and not one year as contended by defendant. We say the same thing here. If the allegations of plaintiff’s petition are true, and, at this stage of the matter, in considering this plea of prescription we must accept them as true, then defendant borrowed plaintiff’s automobile and was bound to afford to it such protection as an ordinarily prudent person would afford to his own similar article. It is alleged that he did not do so and that damage resulted. If this is true, then he is liable for the damage sustained.

The judgment appealed from is annulled, avoided and reversed and the matter is remanded to the First City Court of New Orleans for further proceedings consistent with the views herein expressed and according to law.

Reversed and remanded.

REGAN, J., absent, took no part.


text:
    Gladys Kathleen BARDWELL v. AMERICAN NATIONAL INSURANCE CO.
    No. 20764.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.

      Solomon S. Goldman, New Orleans, for defendant-appellant.
    Richard M. Mathews, New Orleans, for plaintiff-appellee.
   McBRIDE, Judge.

The plaintiff, as named beneficiary in a; policy of insurance issued by the defendant on the life of her husband, Roddie P. Bard-well, who died December 25, 1954, brings this suit against the insurer for a judgment “against the defendant, American National-Insurance Company, declaring petitioner’s right to receive the sum of $2,000.00 in cash or in four weekly payments of $500.00 each, plus 218 consecutive monthly payments of $30.00 each and a final payment of $2,000.-00 cash due at the end of said period on, February 1, 1973, together with six per cent (6%) penalties and legal interest from date of judicial demand.” However, during the course of the trial it was stipulated1 by counsel for the parties “that while this, suit originally started as a suit for a declaratory judgment, the prayer is amended so as to ask for a money judgment in the alternative.” The policy was produced by plaintiff on defendant’s prayer for oyer, whereupon defendant filed an exception of no cause of action. The exception was. overruled. The insurer’s contention is that plaintiff has misconstrued the meaning of the policy provision, and it maintains that its only liability thereunder is to pay the beneficiary the monthly payments of $30 each for a period of 218 months, with the first due as of December 25, 1954 (the date of the insured’s death) and a final payment of $2,000 due on February 1, 1973.

After a hearing on the merits of the case, at which considerable testimonial evidence was adduced, there was judgment in plaintiff’s favor and against the insurer:

* * * jn amount of Two Thousand ($2,000.00) Dollars, payable at once, with legal interest thereon from March 4, 1955, until paid, without prejudice to any rights the plaintiff may have to installments of Thirty ($30.00) Dollars per month as provided for in the policy under consideration herein;
“It is further ordered, adjudged and decreed that this Court retain jurisdiction of this matter in the event the installments payable under the said policy are not paid.”

Defendant appeals. Plaintiff has answered the appeal praying that the judgment:

“ * * * be amended by increasing the amount thereof from $2,000.00 to $4,000.00, of which $2,000.00 is to be payable at once with legal interest from date of judicial demand (March 4, 1955) with declaration of right to receive 218 consecutive monthly payments of $30.00 each, first payment commencing as of December 25, 1954 plus $2,000.00 lump sum final payment immediately at the termination of the installment period, or, alternatively a money judgment for same, * *

This is not a suit for reformation of contract. Plaintiff has pitched her suit on the policy as it is written and the sole and only issue before the court is this: Does the policy provide for payment of $2,000 in one lump sum at insured’s death?

The late Roddie P. Bardwell when 40 years of age applied in writing for a policy of life insurance in January 1953. The policy was issued February 1, 1953, and delivered to the insured who died on December 25, 1954, almost two years after receipt of the policy. The defendant has paid the widow, the primary beneficiary, $30 each month commencing as of the date of the insured’s death and has placed a written endorsement on the policy reciting the insurer’s obligation to continue such monthly payments to February 1, 1973, on which date there is due a final payment of $2,000.

Plaintiff’s petition contains no allegations of fraud, concealment, or deception having been practiced by the insurer, nor that there was any misunderstanding of the policy provisions. The petition simply alleges the plaintiff’s conception of what the language means.

Notwithstanding this, certain evidence was heard and plaintiff’s position is that the testimony of defendant’s former agent, Famiglio, who “sold” the policy to the insured, was received without objection and that this had the effect of enlarging the pleadings, thus injecting the issue of fraud, deception, misunderstanding and concealment into the case. Counsel is in error in stating that no objection was made to the admissibility of Famiglio’s evidence. When plaintiff’s counsel first sought to elicit from the witness testimony to the effect that the insured’s application was for a different type of policy than that issued, defendant’s attorney stated:

“If Your Honor please, I want to interpose an objection, which I assume the Court will make general. There is no charge of misrepresentation, no charge of fraud or deception here. This is merely a case of interpreting the policy that has been issued.”

The court thereupon stated:

“I understand. I will reserve your rights and refer your objection to the effect, without the necessity of repetition.”

The objection should have been sustained. In the absence of any such allegations in the petition the evidence should not have been received and we shall disregard it.

The case should and must be adjudicated on the exception of no cause of action which the defendant reurges before us.

The contract is an ordinary whole life insurance policy modified by certain typewritten language and by the attachment thereto of a printed and typewritten “Family Income Rider” in the following words and figures:

The face of the policy provides:

“In consideration of the application for this policy and of the payment of the premiums herein specified, immediately upon receipt of due proof of the death of the insured will pay Double The Sum Insured if the Insured’s death occurs prior to the policy anniversary nearest his sixty-fifth birthday, or the Sum Insured if the Insured’s death occurs on or after such anniversary, subject to the provisions contained on this and the following pages. See Form FI herein.
“This policy together with the application, a copy of which is attached hereto and made a part hereof, constitute the entire Contract. All statements made in the application, in the absence of fraud, shall be deemed representations and not warranties, and no such statement shall void the policy unless it is contained in the written application and a copy of such application is attached to the policy when issued.
“Schedule
“Policy Number M17426S5; Sum Insured One Thousand Dollars $1000.-00; Insured Roddie P. Bardwell; Date of Issue February 1, 1953; Age at Issue 40 years; Monthly Premium $7.28.
“Beneficiary the wife of the insured, Gladys Kathleen Bardwell, if she survives the insured, otherwise to Phyllis Bardwell, Daughter of the insured.”

The insured died before attaining the age of 65 years. Therefore, the sum insured was $2,000. Were the policy not modified by the attachment thereto of the Family Income Rider, the insurer would have been bound to pay that sum to the beneficiary under the provisions contained on the face of the policy.

But the insuring provisions appearing on the face of the contract are modified by the rider, for there is to be found at the end of the first paragraph quoted above the typewritten words “See Form FI herein.” Also at the foot of the first page appears this typewritten stipulation: “Additional term insurance for twenty years (see Form FI herein).”

Turning then to Form FI, already quoted in full, we find the second paragraph thereto reads as follows:

“In event this Family Income provision becomes operative, the Sum Insured shall not be paid at the time stated on the face of the policy but shall be paid at the end of the Family Income Period. This payment shall be equal to the Sum Insured and shall be known as the Final Payment.* ”

The asterisk after the words “Final Payment” refers to a footnote appearing reading: “* Final payment due at end of Family Income Period shall be $2000.00.”

The pertinent provisions of the policy, including those found within the Family Income Rider, are perfectly clear and unambiguous and convey the import that the sum insured, i. e., $2,000, shall not be paid at the time stated on the face of the policy (on decedent’s death) but shall be paid at the end of the family income period (February 1, 1973) and this final payment shall be $2,000. In the interim between the time of death and the end of the family income period the insurance company agreed to pay the monthly income in payments of $30.

There are no provisions which could possibly be given a construction that the sum insured, $2,000, would be paid twice, firstly, upon death, and then again at the end of the family income period.

The courts are bound to give legal effect to all contracts, including insurance policies, according to the true intent of the parties and the intent is to be determined by the words of the contract when they are clear and explicit and lead to no absurd consequences. Hardin v. Mutual Life Ins. Co. of New York, La.App., 12 So.2d 488; Monroe Air Park No. 1, Inc., v. American Aviation & General Ins. Co., La.App., 41 So.2d 795; Taormina v. National Hospital Service Ass’n, La.App., 43 So.2d 31.

Plaintiff makes some contention that the insured was charged two monthly premiums for the policy, one being the $7.28 stated on the face of the policy, and also one for $3.50, as stipulated in the Family Income Rider. This is not so. The insured only paid one monthly premium of $7.28, that first above-mentioned; regarding the premium for the family income benefits the rider provides:

“These benefits are granted in consideration of the payment of the premiums shown in the Table below which are included in the premiums set out on the face of the policy.”

There is no substance to the construction plaintiff seeks to have given to the policy provisions. Nor is there any basis upon which the judgment can find support. Our brother below was dearly in error in his appreciation of defendant’s liability.

The exception of no cause of action is sustained.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that plaintiff’s suit be dismissed at her cpst in both courts.

Reversed.


text:
    Succession of Frances SCHRADER, Wife of Charles A. BROWN.
    No. 20855.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.

      Edward J. Randle, New Orleans, for Charles A. Brown, appellant.
    Vincent C. Rodriguez, New Orleans, for Inheritance Tax Collector, appellee.
   McBRIDE, Judge.

Mrs. Frances Schrader, wife of Charles A. Brown, died in this city on October 23, 1955, leaving her husband in community and two children, issue of the marriage, namely, Mrs. Helen Brown Cook and Mrs. Jeanne Brown Loftin. She left a last will and testament giving and bequeathing to her husband:

“ * * * all of the disposable portion of my estate * * * together with the usufruct of our home which is located at 841 Exposition Blvd., in the City of New Orleans.”

The mentioned property belonged to the community of acquets and gains which existed between decedent and Charles A. Brown. Decedent left no separate property.

On a rule brought for the purpose the court below rendered a judgment fixing the amount of inheritance taxes due under LSA-R.S. 47:2401 et seq. The amount due by Charles A. Brown was fixed at $735.36, and he has appealed. He makes the contention that the correct amount for which he is liable is $275.68.

The sole and only question the appeal presents is whether the usufruct which the surviving husband has over the children’s share of the property (their legitime) is subject to inheritance taxes. Appellant maintains that it is not. His position is that the usufruct mentioned in the will is no more than a confirmation of the legal usufruct on the undisposed of portion of the decedent’s estate as established by LSA-C.C. art. 916. .We are cited to Succession of Marsal, 118 La. 212, 42 So. 778, and In re Stelly’s Estate, La.App., 185 So. 637, which are authority for the proposition that the legal usufruct arising under LSA-C.C. art. 916 is not taxable.

On the other hand, the Tax Collector maintains we are dealing not with the legal usufruct under said codal article but rather with a testamentary usufruct which is fully taxable.

The Supreme Court had occasion to squarely pass on the identical controversy in Succession of Baker, 129 La. 74, 55 So. 714, 720, and resolved the matter adversely to the Tax Collector’s contention. There the testator left a widow in community and one child, the issue of his marriage with her. By his will the decedent bequeathed to his widow the disposable portion of his estate, which included both separate and community property and the usufruct of the balance. A contest arose over the amount due by the widow as taxes on her inheritance and the Court held that the widow was liable for an inheritance tax:

“ * * * But she is liable for the same only on that part of the estate which comes to her by inheritance, to wit, two thirds of the separate property and the usufruct of the other third, and two thirds of the share of the deceased in the community property. The usufruct of the remaining one-third (of one-half) of the community property does not come to her by inheritance. Succession of Marsal, 118 La. 212, 42 So. 778. As to that portion, the will merely confirmed. It did not give. Succession of Moore, 40 La. Ann. [531] 535, 4 So. 460.”

In Succession of Moore, cited in Succession of Baker, the Court said that the testator could not encumber the portion for which his children are forced heirs, and that he had not done so because the will which left his widow the usufruct thereon was merely a confirmation of the legal usufruct which the law imposed upon the property. The Court observed [40 La.Ann. 531, 4 So. 463]:

“ * * * It [the usufruct] would have existed without the confirmation, which is practically a superfluity.”

Therefore, the appellant would owe no inheritance tax on the usufruct as it came to him by the operation of law and the correct amount of the taxes due is, as he contends, the sum of $275.68.

Thottgh unsuccessful in this proceeding, the Inheritance Tax Collector is not liable for the costs thereof. Neither the state, nor a state board, nor a state governmental agency, nor a public officer representing the state in his official capacity owes any costs. LSA-R.S. 13:4521; Natalbany Lumber Co., Limited v. Louisiana Tax Commission, 175 La. 110, 143 So. 20.

For the reasons assigned, the judgment appealed from is amended so as to reduce the amount of inheritance taxes due by appellant to the sum of $275.68, and as thus amended the judgment is affirmed.

Amended and affirmed.

REGAN, J., takes no part.


author: ROBERTS, Justice. HOBSON, Justice

text:
    Morris J. GREENBLATT, and Anna B. Greenblatt, his wife, and Lavinia Waldbaum, a widow, Petitioners, v. Richard GOLDIN, d/b/a Metro Tile Co., Respondent.
    Supreme Court of Florida, En Banc.
    April 10, 1957.
    Feibelman & Friedman, Miami, for petitioners.
    Leo M. Alpert, Miami, for respondent.
    Bucklew & Ramsey, Tampa, Wm. A. Mc-Rae, Jr., William O. E. Henry, and Holland, Bevis, McRae & Smith, Bartow, as amici curiae.
   On Rehearing Granted.

ROBERTS, Justice.

We are here concerned with Chapter 28243, Laws of Florida, Acts of 1953 — its meaning and its validity. This Act amended Sec. 84.05(11), Fla.Stat.1951, of the Mechanics’ Lien Law, by adding a subsection (a) thereto and now appears as Sec. 84.05(11) (a), Fla.Stat.1955, F.S.A. It is applicable to building contracts of $3,000 or more and was described in its title as “provid [ing] for surety bond or alternative method of payment for performance under a contract for the protection of owner, laborer, lienor, subcontractor, materialman and contractor; and properly made payments.” It provides in part as follows:

“(a) In the event a direct contract calls for the expenditure of three thousand dollars or more, the owner may require and in such event the contractor shall furnish the owner a surety bond * * * payable to the owner in at least the amount of the original contract price, conditioned to pay all laborers, subcontractors and materialmen. If for any reason the contractor fails to furnish the bond and notwithstanding the provisions of any other section of this chapter, the owner shall not pay any money on account of the direct contract prior to the visible commencement of operations and any amounts so paid shall be held' improperly paid, and the owner shall withhold twenty percent of each payment when it becomes due under the direct contract. And in no event shall the owner pay more than eighty percent of the contract price if the bond is not furnished until the contract has been fully performed and final payment is due and the contractor has furnished the owner statement under oath required by § 84.04(3). * * * If for any reason the owner fails to comply with the requirements of this section, he shall be liable for, and the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services, or materials furnished for such improvement regardless of the time elements set forth in this chapter.”

The petitioners, as owners, entered into a written contract with a general contractor for the construction of a residence on their premises. The contract did not require a surety bond and authorized the owner to pay to the contractor 90 percent of the contract price prior to the time when final payment was due. After the owners had paid this amount, the contractor abandoned the contract. The owners then discovered that the contractor had falsified receipted bills in order to obtain progress payments from them and that there were many outstanding bills for materials and services supplied to the contractor for the job. The instant suit was filed by the owners against the contractor and all subcontractors and materialmen claiming a lien against the property, to obtain a decree declaratory of their rights under Sec. 84.05(11)(a), supra, (sometimes referred to as “the Act” hereafter) .

The owners contended in the lower court and argue here that the Act should be interpreted as requiring the withholding of 20 percent of the progress payments and contract price only if an owner actually incorporates a bond requirement in his direct contract, and that, in the absence of such a bond requirement, its provisions are not activated. They also attacked the validity of the Act. The lower court held that the Act is applicable to the direct contract here involved and that it is constitutional. A summary decree was entered in favor of one of the lienors, who is the respondent here, for the full amount of his lien “irrespective of the amounts of other liens and irrespective of the amounts of such sums as the Plaintiffs may have paid to the 'General Contractor.” We here review this decree on petition for certiorari filed by the owners.

As to the applicability of Sec. 84.05(11) (a) to the contract here involved, we agree with the lower court that the Act was intended to apply to a contract of $3,000 or more even though no bond requirement was incorporated therein. When read in the light of the purpose expressed in its title, quoted above, it is clear that the Legislature must have intended to give the owner the alternative of (1) seeing to it that his building contract was covered by a performance bond or (2) withholding from his contractor 20 percent of the progress payments and contract price. If the Legislature had intended to require compliance by the owner with the “alternative method of payment” prescribed in the Act only if the owner required and the contractor refused to give a performance bond, as here contended, it would have been a simple matter to add a provision to that effect. The Legislature did not do so and we find nothing in the language of the Act that requires this court to read into it such a provision. Accordingly, we find no error in the lower court’s ruling as to the applicability of the Act to the contract here involved.

We now come to the question of the validity of Sec. 84.05(11) (a). As has been noted, the Act provides that “[i]f for any reason the owner fails to comply with the requirements of this section, he shall be liable for, and the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services, or materials furnished for such improvement regardless of the time elements set forth in this chapter.” While some ambiguity is generated by the punctuation, all parties interpret this provision as providing for personal liability on the part of the owner and for a lien on the improved property in the full amount of the outstanding bills for labor or materials, limited only by whatever statutory limitations period would be applicable to such actions. It is the contention of the owners that a statute that compels them to secure a performance bond or in the alternative to withhold 20 percent of the payments as they become due under the contract, and that subjects them to the personal and property liability noted above if they fail to do either, impairs their liberty of contract and subjects them to a penalty that is so unreasonable and unconscionable as to deprive them of their property without due process of law. This contention must be sustained.

Mechanics’ lien laws “find sanction in the dictates of natural justice” and in the equitable principle that “every one who, by his labor or materials, has contributed to the preservation or enhancement of the property of another, thereby acquires a right to compensation.” Jones v. Great Southern Fireproof Hotel Co., 6 Cir., 1898, 86 F. 370, 385. By the application of this equitable principle, it has become settled law that “[mjaterialmen and laborers may be secured by mechanics’ liens upon land improved or affected by their material or labor, and this without reference to technical and ancient concepts of privity of contract. * * * For like reasons they may be secured as against the owner by a lien upon any moneys due to the contractor, and secured as against the contractor by a lien upon any moneys collected from the owner * * Hartford Accident & Indemnity Co. v. N. O. Nelson Mfg. Co., 1934, 291 U.S. 352, 54 S.Ct. 392, 395, 78 L.Ed. 840. It has been said, however, that if such legislation “is the mere arbitrary exercise of the powers of government, unauthorized by the established principles of private right, and not having the sanction of natural justice, it is not the law of the land.” Jones v. Great Southern Fireproof Hotel Co., supra, 86 F. 370.

Thus, in Gibbs v. Talley, 1901, 133 Cal. 373, 65 P. 970, 971, 60 L.R.A. 815, the court held unconstitutional a statute, Code Civ. Proc. § 1203, requiring a building contract to be accompanied by bond in an amount of at least 25 percent of the contract price, giving laborers and materialmen a right to recover upon the bond for the value of labor and materials supplied by them, and making the owner and contractor “jointly and severally liable in damages to any and all material men, laborers, and subcontractors entitled to liens upon property affected by said contract” upon failure to comply with the bond requirement. The practical effect of this statute was to make the owner personally liable for an additional 25 percent above the contract price if no performance bond was provided. The court said: “It is perfectly manifest that this section if valid, places an unreasonable restraint upon the owner of property in regard to the use thereof. It compels him to become responsible for liabilities he has not incurred, and which were not created for his benefit. * * * To impose this burden upon an owner is to some extent to deprive him of his property, for the value of property consists in the right to use it.”

See also Hess v. Denman Lumber Co., Tex.Civ.App.1920, 218 S.W. 162, 164, where the statute, Vernon’s Ann.Civ.St. art. 5453 and note, required a contractor’s performance bond and a materialman sued the owner, in tort, for damages in the full amount of his claim, basing his cause of action on the owner’s negligent breach of his statutory duty to procure the bond. The court held the statutory provision requiring the bond unconstitutional as an “interference with the law of the liberty of contract.”

We have found only one decision upholding a statute that requires a contractor’s performance bond and makes the owner personally liable for the claims of subcontractors and materialmen if no such bond is provided. In Rio Grande Lumber Co. v. Darke, 1917, 50 Utah 114, 167 P. 241, L.R.A. 1918A, 1193, the provision of the statute, Laws 1915, c. 91, requiring a bond was attacked as an unconstitutional restraint of the liberty of contract and was upheld by the Utah Supreme Court against such attack, under the authority of Roystone Co. v. Darling, 1915, 171 Cal. 526, 154 P. 15. The Utah court did not, however, discuss the question of whether the penalty of personal liability imposed upon the owner for his failure to secure the bond was valid.

Roystone Co. v. Darling, supra, 154 P. 15, 19, was concerned with a statute, Code Civ.Proc. § 1183, as amended by St.1911, p. 1313, providing that if the owner required the contractor to furnish a bond in not less than 50 percent of the’contract price and the bond was filed with the contract in the recorder’s office, then the court in its discretion could limit the recovery of subcontractors’ and materialmen’s liens to the amount of the contract price; and that if the bond was not provided, then the liens of the subcontractors and materialmen should be “direct and independent of any account of indebtedness between the owner and contractor * * The court said it was “unable to perceive any constitutional objection to the expedient of providing that by the execution and filing of such bond the owner may be protected against the delinquencies of his contractor while, at the .same time, lien claimants are afforded a security for the payment of their claims.” This statute, in effect, established two types of mechanics’ liens: a statutory bond lien, and a direct lien against the improvement. Both types of lien claimants are required to perfect their liens in accordance with the provisions of the Mechanics’ Lien Law, Hubbard v. Jurian, 1918, 35 Cal.App. 757, 170 P. 1093; and the owner is not subjected to personal liability if he elects not to require a bond, “ * * * the only penalty for not doing so being that liens may be perfected for the reasonable value of the work or material furnished without limitation to contract price.” Thode v. McAmis, 1950, 96 Cal.App.2d 833, 216 P.2d 548, 551.

It can be seen that the Act here in question goes far beyond the California statute upheld in the Roystone case, supra, under the liberal provision of Sec. 15, Art. XX, of the California Constitution. It makes no attempt to establish the “direct . lien” theory of mechanics’ liens, which was the avowed purpose of the California statute; it imposes a personal and property liability independently of and without regard to the other provisions of the Mechanics’ Lien Law, for the full amount of all outstanding bills, as a penalty against the unwary or negligent owner who fails to comply with the other requirements of the Act. Manifestly, such a penalty cannot be justified under the mandate of Sec. 22 of Art. XVI of the Florida Constitution, F.S. A., that “The Legislature shall provide for giving to mechanics and laborers an adequate lien on the subject matter of their labor.” In our opinion, it is “the mere arbitrary exercise of the powers of government, unauthorized by the established principles of private right, and not having the sanction of natural justice * * Jones v. Great Southern Fireproof Hotel Co., supra, 86 F. 370.

In a petition for rehearing filed by the respondent-lienor and in briefs filed with the court’s permission on behalf of amici curiae, it is suggested that the question of whether the Legislature may validly impose a personal liability and a lien against the improved property “regardless of the time elements” set forth in the Mechanics’ Lien Law (referred to hereafter as the “personal liability” and “time element” clauses), as a penalty against the owner, is not before this court, since no personal liability was claimed and the respondent’s lien was perfected in accordance with the provisions of the Mechanics’ Lien Law. It is also argued that the personal liability and time element clauses, if invalid, may be stricken from the sentence of the Act in question and leave a valid provision imposing upon the owner’s property “a lien in the full amount of any and all outstanding bills for labor, services, or materials furnished for such improvement”, if the owner fails to comply with the other requirements of the Act. It is not necessary to decide whether this would be a valid provision, since we do not think the sentence is sev-erable under the rule adopted by this court in State v. Calhoun County, 126 Fla. 376, 170 So. 883, 886. It was there said that the court may eliminate invalid clauses “where it appears that the elimination of such clauses would not destroy the main and essential features of the act and the portion left is a completed and workable statute and where it cannot be said that the Legislature would not have enacted the remaining portions of the act without the invalid clause which is stricken.”

It may well be that, if it had known that the personal liability and time element clauses would be held invalid, the Legislature would have provided that subcontractors and materialmen could perfect a lien under the Mechanics’ Lien Law against the owner’s property in the full amount of their outstanding bills, if the owner failed to comply with the other provisions of the Act. But it did not do so. It intended to and did provide for a personal and property liability against the owner entirely outside the scope of the Mechanics’ Lien Law. These provisions are void, and the legislative purpose has failed for the reasons before stated. When the personal liability and time element clauses fail, the entire sentence of which they are an integral part must also fail because the part remaining is not a valid expression of the Legislative will. Cf. Ex parte Smith, 100 Fla. 1, 128 So. 864, holding an entire ordinance invalid because the objectionable clause was an integral part of the ordinance and could not be separated from it without doing violence to the intention of the council.

Accordingly, we hold unconstitutional and void the following provision of Sec. 84.05(11) (a): “If for any reason the owner fails to comply with the requirements of this section, he shall be liable for, and the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services, or materials furnished for such improvement regardless of the time elements set forth in this chapter.”

The deletion of the penalty clause carries with it the remainder of Sec. 84.05(11) (a), under the rule of State v. Calhoun County, supra, quoted above. This is so because the portion left is not a “completed and workable statute” unless we assume that the Legislature intended that the other and previously existing provisions of the Mechanics’ Lien Law respecting “properly paid” payments by the owner should be applied in determining the rights of lien-holders against the owner on account of improper payments made under the Act, should the penalty provision therein prescribed be held invalid. This would be pure conjecture on our part, since there is nothing in the Act to evince such an intention. Moreover, the existing provisions do not provide a clear answer to some of the questions that might arise under the remainder of the Act. For example, if the owner failed to withhold 20 percent of a progress payment, would he be answerable to the lienholders for the full amount so paid or only 20 percent thereof? The existing provisions were not intended to and do not provide an answer to that question.

For the reasons stated, we hold that Chapter 28243, Laws of Florida, Acts of 1953, appearing as Section 84.05(11) (a), Fla.Stat.1955, F.S.A., is void and of no effect. Accordingly, certiorari is granted, the order here reviewed is quashed, and the cause remanded for further proceedings in accordance with the opinions herein expressed.

It is so ordered.

TERRELL, C. J., and O’CONNELL, J., and GILLIS, Associate Justice, concur.

THOMAS and HOBSON, JJ., concur in part and dissent in part.

HOBSON, Justice

(concurring in part and dissenting in part).

I agree that the provision of Sec. 84.05(11), F.S.1955, F.S.A., which apparently creates personal liability on the part of the owner for “all outstanding bills * * * regardless of the time elements set forth in this chapter” is invalid in that it transcends the constitutional mandate that “the Legislature shall provide for giving to mechanics and laborers an adequate lien on the subject matter of their labor.” Consequently, I am of the opinion that the following words appearing in the last sentence of Sec. 84.05(11) (a), F.S.1955, F.S.A., to-wit: “shall be liable for, and * * * regardless of the time elements set forth in this chapter” should be held void and of no effect.

In my opinion that portion of Sec. 84.05 (11) (a) providing that “if for any reason the owner fails to comply with the requirements of this section, he shall be liable for, and the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services, or materials furnished for such improvement regardless of the time elements set forth in this chapter” should not be held invalid in toto.

I hold the view that the provision for a lien in the “full amount” of any and all outstanding bills is not so harsh and oppressive as to warrant a determination by this court of invalidity, because the act provides a method whereby the owner may avoid the penalty set forth in the law by requiring the contractor to furnish the owner a surety bond payable to the owner in at least the amount of the original contract price, conditioned to pay all laborers, sub-contractors and materialmen, or in the alternative follow the requirements for withholding 20% of each payment due under the contract, taking precaution that such payments are “properly paid” as defined in Sec. 84.05.

In my judgment this act is invalid only insofar as it provides for personal liability against the owner for any and all outstanding bills regardless of the time elements set forth in F.S. Ch. 84, F.S.A.

The owner is entitled to the protection afforded by the “time element” which requires a lienor to file his claim within three months after the final performance of labor or service or the furnishing of materials, F.S. Sec. 84.16, F.S.A., and the further requirement that no lien shall continue for a longer period than one year after the claim is filed, unless an action to enforce it is commenced within that time, F.S. Sec. 84.21, F.S.A. Clearly these provisions do not contravene the mandate of the constitution that mechanics and laborers shall have adequate liens on the subject matter of their labor. An owner has the right to know within three months after all work is completed on his property that he can deliver title to it, free and clear of mechanics’ liens, instead of being relegated to the protection of a general statute of limitations. To hold otherwise would, in my opinion, play havoc with the sale of property and would be unduly harsh, oppressive and unreasonable.

I would grant the petition for certiorari and declare invalid only those portions of the act detailed above. By so doing the last sentence of Sec. 84.05(11) (a) would read as follows: “If for any reason the owner fails to comply with the requirements of this section the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services or materials furnished for such improvement.” This proviso together with the remaining portions of the legislative act would, in my judgment, constitute a “completed and workable statute”.

I deem it appropriate to restate the observation which was made by this court in the case of Allstate Pipe Supply Co. v. McNair, 89 So.2d 774, 775, when, in speaking through Mr. Justice O’Connell, we said:

“There is nothing to be gained in condemning or applauding the Mechanics’ Lien Law for it is the law of this State. Admittedly it is harsh in many respects, as applied to an owner, and no one improving property can ignore its provisions without coming to grief.”

THOMAS, J., concurs.

       Prior opinion vacated and withdrawn.


author: PER CURIAM. PER CURIAM.

text:
    Martin G. STAUF, Appellant, v. Allen HOLDEN and Daniel J. Harkins, Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 13, 1957.
    On Rehearing April 3, 1957.
    Further Rehearing Denied May 2, 1957.
    E. F. P. Brigham and Brigham, Black, Niles & Wright, Miami, for appellant.
    Reece & Murray, Miami, for appellee Allen Holden.
    Royal Flagg Jonas, Miami Beach, for appellee Daniel J. Harkins.
   PER CURIAM.

Affirmed.

HOBSON, ROBERTS,-DREW, THOR-NAL and O’CONNELL, JJ., concur.

TERRELL, C. J., and THOMAS, J., dissent.

On Rehearing Granted

PER CURIAM.

On rehearing granted we have reconsidered appellant’s assignment of error directed to charge number 23 which was requested by the appellee Plolden. and given by the trial'court in this cause, which was a suit by a patient against his physicians for malpractice. ■ The questioned charge is as follows:

“In a case against a physician for malpractice, the professional character and reputation of the physician is the most important matter at stake, and hence he should not be condemned by evidence that does not point to his negligence.”

When we first considered this assignment it was the view of a majority of the court that when considered in the light of all the charges given, it could not be said that it misled the jury and resulted in reversible ' error. On reconsideration, however, we must recede from that view.

As a fundamental proposition, had the lower court allowed the introduction of testimony by the physicians or others qualified to testify that an adverse verdict and judgment in a case against a physician involving malpractice would result in great injury to the professional character and reputation of a physician, such would have clearly required a reversal. We see little difference in allowing the introduction of testimony of that nature and the giving of the questioned charge. If anything, the extent of the error would have been greater in the latter case for the charge was a statement of the trial court to the jury that, in the consideration of their verdict, even should they conclude that the physicians had been negligent and that such negligence proximately contributed to the plaintiff’s injuries, they were entitled to weigh against that the effect that their findings and verdict would have upon the professional character and reputation of the defendants. It is obvious that the court erred when he gave the instruction and on reconsideration we must conclude that the remaining charges of the court could not have erased this charge from the minds of the jury nor have rendered it harmless.

The questioned charge was obviously taken from the eighth headnote in the case of Foster v. Thornton, 125 Fla. 699, 170 So. 459. We do not believe that the headnote reports the effect of the observation of the Justice writing the opinion relating, as an abstract proposition, to the issues in malpractice suits. Moreover, such observations were not necessary nor material to the decision in that case and were clearly obiter dicta.

We must, therefore, and hereby do recede from the former judgment of af-firmance in this case. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

TERRELL, C. J., and THOMAS, HOB- ; SON, ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.


author: ROBERTS, Justice.

text:
    Sophronia I. ESTES, Appellant, v. E. B. MOYLAN, Jr., Appellee.
    Supreme Court of Florida, En Banc.
    Feb. 6, 1957.
    Rehearing Denied May 2, 1957.

      R. P. Terry, Miami, for appellant.
    Anderson & Nadeau, Miami, for ap-pellee.
   ROBERTS, Justice.

This is an appeal by defendant from a summary judgment entered in favor of plaintiff, a real estate broker, in his suit to recover a broker’s commission from defendant.

The cause of action stated by plaintiff was, in substance, that “the defendant employed the plaintiff to find a purchaser for certain property then belonging to her, and at said time agreed to pay the plaintiff, a commission for finding a purchaser for said property;” that as a result of plaintiff’s efforts the defendant did, on August 30, 1954, enter into a contract with one Shuey for the purchase and sale of a 580-acre tract and “in said contract, and in ratification of the plaintiff’s employment, the defendant agreed to pay the plaintiff $34,800.00 as a commission for finding a purchaser for the property described in said agreement * * * ”; and that “thereafter, the defendant concluded the transaction by executing and delivering a deed * * * for a portion of the acreage described in the said contract,” for which plaintiff claimed a commission of some $24,900, representing 10 percent of the purchase price of the smaller acreage actually sold by defendant.

Both parties moved for summary judgment, supported by affidavits; and, after answer filed by defendant, the trial judge entered a summary judgment for plaintiff. Defendant has appealed.

The facts of the transaction, as shown by the affidavits in the record, are that the plaintiff Moylan approached the defendant, Mrs. Estes, stating that he had a customer for certain property owned by her. The customer was purported to be one Shuey. Negotiations between Shuey and Mrs. Estes, transmitted through Moylan, culminated in the contract of August 30, 1954, referred to in the complaint. This contract provided for the purchase and sale of a 580-acre tract (designated Parcel No. 1) at a price of $600 per acre, and for an option to purchase another parcel, not here involved. The transaction was to be closed on October 11, 1954, and a part of the purchase price paid at that time, the balance to be covered by a mortgage payable over a four-year period. In this contract, Mrs. Estes agreed to pay Moylan “as commission for finding a purchaser for the above-described property the sum of $34,800.00 if the sale ■of Parcel No. 1 is concluded * * But it was also stipulated therein that ■“The broker’s commission shall be paid as the principal is received by Estes. No^ commission shall be payable therefor if either transaction fails of consummation for a cause not attributable to Estes or because of title defects.”

Shuey was actually acting as the agent of Maulé Industries, Inc., in purchasing the property, a fact disclosed to Mrs. Estes at the time the August 30th contract was executed. Some three weeks later, on September 24, 1954, upon the insistence of and through negotiations with two other agents of Maulé (Hough and Weiss), Mrs. Estes entered into a new contract for the sale to Maulé of only a portion (385 acres) of the tract covered by the old (August 30th) contract but at a higher price ($650) per acre. Moylan did not participate in the negotiation of the new contract, and Mrs Estes said that she saw him only one time after the execution of the old contract, and then only to “pass the time of day.” It is conceded that it was at Maule’s insistence and request that the old contract was superseded by the new contract, and not because of any default on the part of Mrs. Estes.

There is a dispute as to whether Maule’s agents definitely terminated the old contract, for reasons of their own not necessary here to relate. Hough stated that he did not and that he always intended to consummate the old contract if Mrs. Estes was unwilling to accept the new proposal. Mrs. Estes and her son stated positively that Shuey told them that Maulé would not go through with the old contract, and Shuey did not controvert their statements. There is also some dispute as to the inferences to be drawn from Mrs. Estes’ attendance at a zoning board meeting at which the tract was re-zoned to a use that would permit quarrying operations, which was Maule’s purpose in buying the property.

These disputes are not important in the view we take of the matter, and the trial judge must also have considered them immaterial, since he entered summary judgment in favor of the plaintiff. His action in this respect (judging by the argument of Moylan here) was apparently based on the rule, as stated in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 878, that “If the broker has brought the parties together and a sale is effected as a result of continuous negotiations inaugurated by him, he will not be defeated in his effort to recover compensation simply because of a variation between the original terms stated by the owner and those finally accepted. Dancy et al. v. Baker, 206 Ala. 236, 89 So. 590.” Accord: Katz v. Bear, Fla.1951, 52 So.2d 903, 904; Parrish v. Tyre, Fla.1952, 59 So.2d 250. And see Shuler v. Allen, Fla.1955, 76 So. 2d 879, 883, for a precise definition of “continuous negotiations” within the meaning of the rule.

We are of the opinion that the rule of Taylor v. Dorsey, supra, is not applicable under the facts shown by this record.

The rule, by its very terms, applies to a situation where the owner of property, as principal, has employed a broker to find a purchaser for property at a stipulated price. It was developed as a qualification of the legal principle that, ordinarily, under such a brokerage agreement, the broker does not earn his commission if he fails to produce a purchaser who is able, ready and willing to buy at the stipulated price; and it finds its justification in the fact that “Courts are not disposed to allow a broker’s undertaking, in process of accomplishment, to be defeated by any fraud or inequitable conduct on the part of his principal, whereby the principal would profit by the broker’s service and at the same time evade a just liability to make due compensation.” Dancy v. Baker, 206 Ala. 236, 89 So. 590, 591, cited in Taylor v. Dorsey, supra, as authority for the rule therein adopted. It is usually applied in two types of situations to support a recovery by the broker of his commission: (1) where the owner interrupts incomplete and continuing negotiations between the broker and his customer and effects a sale directly to the customer at a price lower than that which the broker was authorized to negotiate for; and (2) where the broker procures a person who is unwilling to pay the stipulated price, but makes a counter offer which is accepted by the owner. Recovery is allowed on the theory that the owner, by his interruption of the broker’s negotiations or by acceptance of the counter offer, has deprived the broker of the opportunity to bring his customer up to the authorized price, and hence that he has waived the price requirement stipulated in his contract with the broker. Dancy v. Baker, supra, 89 So. 590.

Here, although the cause of action stated by Moylan was on an express contract of employment by Mrs. Estes to find a purchaser for her property, the record is devoid of any showing of such an express contract of employment. The only express contract shown by the record was that contained in the old contract, referred to above, which was not sued upon — and understandably so. Mrs. Estes stated in her affidavit that the old contract “expressed the only contract of any nature ever had with the said Moylan relative to any lands of affiant.” Moylan does not controvert this statement; in fact, Moylan’s affidavit shows nothing more than that he was the middleman between Mrs. Estes and his customer, Shuey, in negotiating the old contract. He performed services in this respect, for which Mrs. Estes agreed to compensate him if the contract was consummated. The contract was not consummated, so her liability under it never matured. He took no part in the execution of the new contract. It goes without saying that, as in the case of any other employment contract, a broker cannot recover for his services unless they were performed at the express or implied request of the alleged employer. This is true even though the owner of property finds a purchaser for that property through information furnished to him by the broker. City Builders Finance Co. v. Stahl, 1925, 90 Fla. 357, 106 So. 77. “There must be a meeting of the minds of the parties; the principal must intend that the broker act for him and the broker must intend to accept the authority to act and that intention may be expressed in words or by the conduct of the parties.” 5 Fla.Jur., Brokers, Sec. 15, p. 35. Whether the circumstances here would support a suit on an implied contract to recover the reasonable value of Moylan’s services need not be decided, since no such issue was made by the pleadings. Cf. Foley-Carter Ins. Co., Inc., v. Commonwealth Life Ins. Co., 5 Cir., 1942, 128 F.2d 718.

In the absence, then, of any showing of a contract of employment between Mrs. Estes and Moylan, the rule of Taylor v. Dorsey, supra, is not applicable; and no other basis for recovery under the facts shown by the record in support of the cause of action stated, has been suggested. We hold, therefore, that it was error to enter summary judgment in favor of Moylan.

This makes it unnecessary to decide whether the summary judgment was improperly entered, in view of the issue made by Mrs. Estes’ answer (and not met by the affidavits) to the effect that Moylan forfeited any right to a commission by failing to disclose to her that Maulé would have purchased the entire tract in accordance with the terms of the old contract (which Mrs. Estes stated she desired to do) if she had refused to enter into the new agreement.

It is also unnecessary to decide whether the rule of Taylor v. Dorsey, even if otherwise applicable, would apply to a situation where the counter offer accepted by the owner covered only a portion of the contract which the broker was employed to find a purchaser for. Cf. 8 Am.Jur., Brokers, Sec. 178, p. 1094; Varn v. Pelot, 55 Fla. 357, 45 So. 1015.

There being no genuine issue of any material fact on the question of Mrs. Estes’ liability on the cause of action stated ■ by Moylan, she was entitled to have, a summary judgment entered in her favor.

The judgment appealed from is reversed, with directions to enter summary judgment in favor of Mrs. Estes, but without prejudice to the right of Moylan to sue on an implied contract, if he deems such action advisable.

Reversed with directions.

TERRELL, C. J., and HOBSON, DREW, THORNAL and O’CONNELL, JJ., concur.

THOMAS, J., dissents.