author: FOURNET, Chief Justice. McCALEB, Justice

text:
    232 La. 951
    John F. ARMS v. Edward P. RODRIGUEZ.
    No. 43163.
    Supreme Court of Louisiana.
    May 6, 1957.
    Amos L. Ponder, New Orleans, for defendant-appellant.
    Clarisse P. DeReyna, Arthur L. Ballin, New Orleans, for plaintiff-appellee,
   FOURNET, Chief Justice.

The defendant, Edward P, Rodriguez, is appealing from a judgment condemning him to vacate, without delay, the premises designated 2010-2012 St. Charles Avenue in New Orleans, and to deliver possession thereof to plaintiff, John F. Arms.

According to the record, on August 26, 1955, the defendant, who had been operating a business known as Butter Krisp Restaurant at the above address as owner of that property, executed a deed of sale of the said property to the plaintiff; and at the same time the parties entered into a lease covering the premises, the term thereof being 20 years, at a stated monthly rental of $465.93 for the first five years and $725 for the remaining fifteen. In the lease is found the stipulation that “Lessee agrees and binds itself [himself] : (a) To pay punctually all City, State and' Federal Taxes, or any other taxes, except Income and Inheritance Taxes, which may be levied or assessed against the property, and to deliver to Lessor all tax receipts for same * * and another stipulation providing that “Should the Lessee at any time violate any of the conditions of this lease; or fail to pay the rent, water bill (or other expenses assumed under this lease), punctually at maturity, as stipulated; * * and should such violation continue for a period of ten days after written notice has been given to the Lessee, then the rent for the whole unexpired term of this lease shall, without putting Lessee in default, at once become due and exigible; and in such event, Lessor shall have the option either at once to demand the entire rent for the whole term, or to immediately cancel this lease, without putting Lessee in default, * *

The factual basis for this action is that the defendant failed to pay, when due, the real estate taxes assessed by the City of New Orleans for the year 1956 and on March 21, 1956, the plaintiff sent to defendant, by certified mail, a letter in which, after calling attention to the provision of the lease requiring him to pay punctually all State and City taxes levied against the property, and to deliver to lessor all tax receipts, requested him to surrender “the 1956 City tax receipt for the taxes which are now past due.” An additional paragraph requested “that the current month’s rent be paid promptly on its due date, March 26, 1956.” The record shows that the said rent, covering the month of April, was paid by check dated “3-29-56” and was accepted by plaintiff; it also shows that the rent for the following month, May, was paid by check bearing the date “4-28-56” and was cashed by the plaintiff. However, the rent for the month of June, which became due on .May 26, tendered by check dated “5-28-56,” was refused, and on May 30, 1956, the plaintiff sent a letter to defendant advising that he, the defendant, had been formally notified on March 21, 1956, that the 1956 taxes had not been paid and that more than ten days had elapsed since that notification but the taxes still remained unpaid; that the plaintiff was therefore exercising the option contained in the lease to cancel, and accordingly he was formally notifying him, the defendant, to vacate the premises within five days. The defendant having failed to do so, this rule for possession was filed on June 19, 1956.

The defendant contends that the action of the plaintiff in accepting rental payments for the months of April and May subsequent to the notice of violation alleged to have been given by letter of March 21st constituted a waiver of the notice, and as a consequence this action was premature, citing Canal Realty & Improvement Co., Inc., v. Pailet, 217 La. 376, 46 So.2d 303.

In the cited case it appears that the lessor on numerous occasions had notified the lessee, both verbally and in writing, of alleged violations of certain provisions of the lease and had called upon him to comply with his agreement; that on the 19th of May, 1949, it again addressed him by letter, advising that it, the lessor, was exercising its rights under the lease by declaring the lease cancelled, and notifying him to vacate on May 31st—which was ignored by the lessee; and on the 27th of June the lessor instituted proceedings to evict, despite the fact that on the 10th of that month it had accepted payment of the rent due for the month ' of June. This Court, with Mr. Justice Hamiter as its organ, held "that the acceptance * * * constituted a waiver of that notice and a forgiveness as to any and all previously committed infractions, and it served to reinstate the lease as of that time.” (217 La. at pages 384-385, 46 So.2d at page 306) (Emphasis supplied.)

Counsel for the plaintiff, however, argue here that the holding in that case is not controlling for the reason that there the rent was accepted after the notice of cancellation had been given, whereas here no money for rent was accepted after the notice of eviction was served—the tender made of rent for the month of June having been specifically refused.

There is no substance to this argument for, according to their contract of lease, which is the law between the parties, if the violation complained of continued for a period of ten days after written notice thereof had been given to the lessee, "then the rent for the zvhole unexpired term of this lease shall * * * at once become due and exigible * * The acceptance by the plaintiff of the two rent installments for the months of April and May constituted a waiver of the above provisions of the lease, placed there for his benefit and protection; and, as stated in the Canal Realty case, supra, constituted a forgiveness of all previously committed infractions and served to reinstate the lease as of that time. In other words, the lessor did not choose to take advantage of the contractual right that flowed to his benefit to have the rent for the whole unexpired term of this lease at once become due and exigible—in which event the lessor had the option to demand the entire amount at once or to immediately cancel the lease —but instead preferred to accept the rent in accordance with the lease, thereby forgiving the previous infractions.

Plaintiff’s argument that the additional provision in the lease—“The receiving by Lessor, or Lessor’s representative of any rent in arrears, or after notice or institution of any suit for possession, or for cancellation of this lease, will not be considered as a waiver of such notice or suit, or of any of the rights of Lessor”— is controlling, does not impress us, for this clause clearly has no application to the facts under consideration here.

In any event, on the trial of the rule on the merits the plaintiff failed to prove that the defendant had received in writing, as provided by the lease, the required notice of the violation forming the basis of this suit—the defendant having denied receiving such a letter. The only proof adduced to support the allegation was a carbon copy of a letter dated March 21, 1956, addressed to the defendant at his place of business, sent by certified mail, with a return receipt indicating delivery. There was also introduced a copy of another letter to the defendant, of similar import and sent to the same address by the same method of delivery, bearing date April 25, 1956; and while the name “Mr. Edward P. Rodriguez” was written on the top line of the return receipts, they were signed respectively by “Myrtie Smith” and “Mrs. D. Butler,” the defendant explaining that Myrtie Smith was the name of a waitress-employee but he knew of no employee named D. Butler, knew only a Negro named Clarence Butler who was his chef. The plaintiff failed to avail himself of a subpoena to prove that these persons did in fact, if they did, turn the letters over to the defendant; consequently the plaintiff was without right to evict the defendant.

For the reasons assigned the judgment appealed from is annulled and set aside, and plaintiff’s suit is dismissed at his cost.

PONDER, J., recused.

McCALEB, Justice

(concurring).

I take no issue with the factual finding of the court that plaintiff has failed to prove that the defendant had received in writing, as provided by the lease, the required notice of. the violation forming the basis of this suit and it is for this reason alone that I concur in the decree.

It appears to me that this resolution of fact should end the case and that the other ruling of the court, that the lessor waived the right to insist on cancellation of the lease by accepting rent for the months of April and May after he had notified lessee of his failure to comply with the provisions of the lease in not paying the taxes, is superfluous. However, since this finding appears to be the principal ground on which the decision is pitched, I feel that it is appropriate for me to express my inability to subscribe thereto.

It is my opinion that, after notice of violation of the provisions of the lease had been given, it was perfectly proper for the lessor to accept monthly rental without waiving his right to insist upon cancellation of the lease. Surely, it cannot rightly be deduced that the acceptance of current monthly rent operated as a waiver of the lessee’s obligation to punctually pay the city and state taxes due by him. Nor do I believe that such acceptance constituted a waiver of the option given lessor to cancel the lease at any time after the expiration of the ten day period given in lessor’s notice, as provided by the contract.

I realize that the holding herein finds substantial support in the decision of Canal Realty & Improvement Co., Inc., v. Pailet, 217 La. 376, 46 So.2d 303. However, since I am presently convinced that the holding in that case is not correct, I must respectfully disagree with the similar ruling in this matter.

I concur in the decree.

      . The consideration was $85,000, the defendant reserving an option to repurchase the said property for the price of $110,-000 cash at any time during the ten years following date of sale; but said option was to become null and void in event the lease was cancelled pursuant to' any of its provisions.

      . Under the City’s plan of payment, such taxes became due on January 1, 1956; they could be paid in two installments, half in January and half in July, but failure to pay the first installment before January 31, 1956, caused the entire bill to become due as of that date, and delinquent thereafter.

      . On May 31, 1956, the plaintiff had paid the City taxes and the interest assessed because of delinquency; on June 1 the defendant paid the same taxes and interest, and caused plaintiff to be notified of the dual payment. In due course the plaintiff’s money was refunded by the Department of Finance.

      .The letters were dated October 22, 1948, November 15, 1948, January 27, 1949, February 2, 1949, February 9, 1949, February 22, 1949, and March 2, 1949.


source: Caselaw Access Project

author: FOURNET, Chief Justice. McCALEB, Justice HAMITER, Justice HAWTHORNE, Justice

license: Public Domain

text:
    232 La. 961
    STATE of Louisiana v. Edwin H. SBISA.
    No. 43365.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Byrnes & Wallace, Bernard J. Fonseca, New Orleans, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Malcolm V. O’Hara, First Asst. Dist. Atty., Louis Fenner Claiborne, Asst. Dist. Atty., New Orleans, for ap-pellee.
   FOURNET, Chief Justice.

The defendant, Edwin H. Sbisa, was charged in an indictment returned by the grand jury on March 1, 1956, with malfeasance in office, as denounced by R.S. 14:134, the accusation being, in substance, that from the twentieth of May, 1953, to the first day of February, 1954, the defendant, then Captain of the Third District Police Station in the City of New Orleans, intentionally refused and failed to arrest members of the New Orleans Police Department under his authority and command, knowing that such police officers and other persons were committing public bribery, and permitted the said police officers to intentionally fail in their lawfully imposed duty to refrain from committing public bribery and taking no action to prevent or hinder such commission of public bribery. Prescription was expressly negated.

The indictment was quashed by the trial judge, Section A of the Criminal District Court for the Parish of Orleans, on motion of defendant based on the prescription of one year provided by R.S. 15:8, but on appeal to Appellate Division No. 2 of the Criminal District Court the judgment of the trial court was reversed and the case went to trial on the merits in Section E. The defendant was convicted and sentenced to the maximum penalty provided by law in such cases, i. e., to pay a fine of $500 and serve six months in jail, and he prosecutes this appeal, assigning as error the action of the court in (a) denying the motion to quash on the ground of prescription, (b) denying the portions of "defendant’s motion for a bill of particulars in which he sought names of persons who conveyed knowledge to defendant of the public bribery said to exist or particulars as to the manner in which defendant received the knowledge with which he was charged; (c) allowing evidence of the existence of a system of graft in the Third District prior to the time defendant was assigned there and prior to the time charged in the indictment; (d) refusing the request of the defendant for production of a statement made by the main prosecuting witness to Assistant Superintendent of Police Guy Bannister in order that the witness might refresh his memory with respect to the contents thereof touching on a material aspect of the offense charged; and (e) denying the defendant’s motion for a new trial, since there was neither circumstantial nor direct evidence to show that the defendant had knowledge of activity which would require the exercise of his official function. In the aforesaid relative order, Bills of Exception numbered 1 through 5 were reserved.

It would appear that there is merit in Bill of Exception No. 4, found under “(d)” in the above assignment of errors. The main prosecuting witness, Sergeant John Edward Bray, while under cross examination, admitted making a statement to Guy Bannister, Assistant Superintendent of Police, in connection with the investigation which culminated in the indictment under which defendant is being prosecuted, which statement was re-duced to writing; -and after having first testified that he did not recall telling Bannister that he had a conversation with the defendant relative to the system of graft existing in the Third District nor whether in that statement he had in fact told Bannister that there were no such discussions between him and the defendant, and having stated that he had not been presented with a copy, he was asked whether a copy would refresh his memory and he said it certainly would, whereupon the defendant called for production of the statement; however, the Court maintained the objection raised by the District Attorney, who invoked decisions of this Court in the cases of State v. Vallery, 214 La. 495, 38 So.2d 148; State v. Williams, 215 La. 419, 43 So.2d 780, and State v. Labat, 226 La. 201, 75 So.2d 333, and to that ruling of the court the Bill was reserved. As pointed out by this Court in the case of State v. Weston, 232 La. 766, 95 So.2d 305, “ * * * the pronouncements in the Val-lery, Williams and Labat cases that the defense is not entitled to production of any written statement of a witness in the hands of the district attorney, appear to be too broad * * It would seem that the interests of justice would be better served by having allowed this witness to refresh his memory with respect to a matter very material to a successful prosecution. This is particularly so because the State was relying solely on the testimony of the witness Bray to show knowledge by the defendant of the alleged graft being engaged in by his subordinates. Cf. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447.

However, we prefer not to rest our decision on that Bill of Exception. Because of the first and fifth assignments of error, forming the.subject matter of Bills of Exception Nos. 1 and 5, all of the evidence adduced on trial of the cause, both on motion to quash and on trial on the merits, had to be read, and we are in full accord with the judgment of the Appellate Division of the Criminal District Court reversing the judgment of the trial judge quashing the indictment, for, as was aptly stated by the Presiding Judge in his written reasons, “There is neither in the report of the Special Citizens Committee nor in the testimony of the witnesses in these proceedings a single reference, suggestion, or suspicion that Captain Edwin IT. Sbisa had knozvledge that public bribery was being committed by police officers and other persons within the jurisdiction of the Third District Police Station, * * * nor does the record contain anything even suggesting that Captain Sbisa had committed malfeasance in office so as to put the District Attorney or the Grand Juries on inquiry.’’ (the foregoing italics and others in this opinion are supplied), and on the merits, we are constrained to hold that there is no evidence of any probative value from which a conclusion can be drawn that the defendant had knowledge of the alleged public bribery that was being committed in his district by his subordinates and other persons.

Unquestionably, in the trial of a misdemeanor the trial judge is the sole judge of the facts of the case, as to which this Court has no appellate jurisdiction (La.Constitution of 1921, Article 7, Section 10); however, under the jurisprudence of this Court, when there is a total lack of evidence to support a fact essential to a valid conviction, then a question of law arises and it is the duty of this Court to reverse the conviction.

As pointed out by the trial judge in his Per Curiam to Bill of Exception No. 5, the defendant was not charged with the crime of having accepted bribes, but with the crime of malfeasance as defined by R.S. 14:134, which makes it a crime for “any public officer or employee to intentionally refuse or fail to perform any duty lawfully required of him or for any public officer or public employee to knowingly permit any other public officer or public employee under his authority to intentionally refuse or fail to perform any duty lawfully required of him, etc.” It necessarily follows that to be guilty of the offense of malfeasance it was necessary for the evidence to show that Captain Sbisa had knowledge that Bray and others were accepting bribes from gambling establishments in the Third District — for it is obvious that if he had no such knowledge he could not intentionally fail to arrest them for doing so, or intentionally permit them to fail in their duty to refrain from accepting bribes.

During the course of the trial the State called eleven witnesses to the stand; of this number, nine testified that they had committed public bribery while members of the police department — seven being still on the payroll with the same rank held at the time of the offense, and one of those seven, Sgt. Fritcher, having stated he was promised security of his job if he testified. Of the nine who admitted to the commission of the offense, five were under the supervision of the defendant at one time or another during the time he served as Captain of one of the platoons of the Third District Police Station, i. e., between the dates of May 20, 1953, and February 1, 1954. Not a single witness, however testified that he had ever convoyad to the defendant the knowledge that there was a system of collecting money from gambling and lottery operations for “protection,” or saw defendant receive a part; in fact, most of those admitting participation testified that the distribution was never handled openly, even among the men, and that as to the defendant especially, the matter was carried on in concealment; the witnesses denied having ever received any instructions not to make arrests in cases of law violation. On the contrary, the testimony shows that defendant instructed his subordinates to make arrests on all gambling places.

According to the record, the full control of the system of bribery that existed in the Third District until the spring of 1955 was in Sgt. John Edward Bray, the main prosecuting witness; it was he who directed collections, set the amounts to be paid, divided the proceeds and handled the distribution, having undertaken the project in 1951 upon the death of a man named Lacalie. Under Bray’s direction Sgt. Fritcher, on his day off and dressed in civilian clothing, would call at locations to which he had been directed by Bray and would collect various amounts previously agreed to between Bray and the operator of the establishment, which cash money Fritcher would take to Bray’s home. According to his testimony, Bray would divide the amount into three equal parts, would place a third in a large white envelope on which he wrote “Captains,” would divide a third among the ranks, including the sergeants and lieutenants, and place the amount for each in a brown coin envelope marked with his name, and would enclose a third in a paper or a large white envelope marked for the First, Second or Third Platoon. The envelope marked “Captains” was placed in the general mail basket on the desk in the office used by the captains —but also used as an interrogating room and generally available to any one for use of the telephone, interviews, etc. The small brown envelopes were handed to the individuals by Bray or left in a drawer of the desk sergeant’s desk, each platoon having a separate drawer for its use, or sometimes were placed in the hall mail box located outside the sergeant’s office, which was also the place where the lump sum for each platoon was left, to be divided by the men equally among themselves according to number. When officers, patrolmen or sergeants were assigned to the Third District they were not immediately included in the division but a period would pass until Bray felt they could be trusted. For his services Fritcher was given $5 a week; Bray kept $10.

During the period of defendant’s assignment to the Third District it was under the jurisdiction of three captains per working day: Aaron Harris, William Clark, and the defendant. An average of about 65 men assigned to duty in the Third District during that time were divided into three platoons operating in eight hour shifts, each under the jurisdiction of a separate captain and with a lieutenant for each shift. Bray stated that he never placed the envelope in the captain’s office while any captain was present nor did he ever see a captain take the envelope; and on direct examination denied ever having discussed the matter with any of the the captains. At this point the District Attorney pleaded surprise, claiming that the witness had testified differently before the grand jury; the Judge then remarked to the witness, “You had better search you memory. You may face a prosecution for perjury." After a recess Bray was asked again on direct examination whether or not he had ever put any of this money on the captains’ desk while they were in the office, to which he answered “Not to my recollection,” and whether he had had any kind of discussion or conversation with any captains regarding this money, to which he answered, “I don’t recall;” whereupon the District Attorney read a series of questions and answers thereto given by Bray before the grand jury, and with this to refresh his memory the witness admitted talking to the captains; and in answer to the question “What is your best recollection of talking to every captain?” answered, “To the best of my recollection is that when a captain would come in he’d say 'Carry on like you have been doing.’ ” On cross examination,, however, he admitted never having had any conversation with the defendant other than the fact that the defendant had said “Carry-on like you have been doing,” stating “I heard that at roll call, and if [when] a new captain would come in he’d introduce himself and say carry on like you have been doing and if there is any changes I will notify you by order.” In answer to the question, “You’re talking about what any captain would do; I am speaking about Captain Sbisa specifically, do you recall?”' he replied, “Can’t definitely positively say-so.” It was then stipulated that this witness, was under another captain and in another platoon from the time defendant was assigned to the station (May 20, 1953) to. December 31, 1953, was never in the platoon of which Captain Sbisa had charge-until the first of January, 1954, when he,, the defendant, changed over; that he did not, while in another platoon, take any orders or instructions from Captain Sbisa,. nor was he present at roll call of defendant’s platoon; and on cross examination* he again flatly denied placing the envelope in the office while a captain was there, or having ever talked about the matter to the defendant.

The trial judge nevertheless concluded that the testimony as a whole established the guilt of the defendant of the crime charged in the indictment. He pointed out: “As is provided by Section 16 of Act 301 of 1946, a member of the police department of the City of New Orleans is charged with the obligation ‘to preserve the public peace, to prevent crimes, detect and arrest offenders (and) * * * enforce and prevent the violation of all laws and ordinances in force in said City/ etc.,” and observing “As a commander of a district, he [Captain Sbisa] had the means and authority to enforce disciplinary measures upon his subordinates to prevent the commission of said crime or to have detected its commission as it was his duty to do,” reasoned that “In view of the evidence adduced by the State, to say that Captain Sbisa had no knowledge of the commission of the crime of public bribery by his subordinates, or that he was without the means of acquiring such knowledge, as would have prevented or detected its commission, is incompatible with the facts of life as they are lived by a ranking police officer of some thirty years’ experience within the department.”

Unfortunately, we are not informed of the “facts of life as they are lived by a ranking police officer with some thirty years’ experience within the department,” nor are we informed by the trial judge what his knowledge thereof comprises, since it is not based on any evidence in the record; and while it is elementary that it is within the province of the trial judge to use any process consonant with reason and logic in evaluating evidence upon the trial of the case, we know of no law that authorizes him to inject his own knowledge of facts dehors the record when there is a total lack of evidence. To carry to its logical conclusion the reasoning of our learned brother below, the entire higher echelon of the Police Department, including the Mayor, under whose jurisdiction the Department operates, could well be charged with the offense of which he, the the trial judge, convicted this defendant, for surely they are all possessed with the means and authority to enforce disciplinary measures upon their subordinates as well as to detect and prevent the commission of crime.

For the reasons assigned, the judgment appealed from is annulled and set aside and the defendant is ordered discharged.

McCALEB, J., concurs in part and dissents in part with written reasons.

HAMITER and HAWTHORNE, JJ., dissent with written reasons.

McCALEB, Justice

(concurring in part and dissenting in part).

Assuming that the proper foundation was laid (see State v. Weston, 232 La. 766, 95 So.2d 305), appellant would, in my opinion, be entitled to a new trial on his Bill of Exceptions No. 4, which was taken to the ruling of the court in refusing to require the State to produce the statement which had been given by the main prosecuting witness, Sergeant John Edward Bray, to Guy Bannister, Assistant Superintendent of Police.

On the other hand, I cannot subscribe to the ruling of the Court discharging appellant on the theory that no evidence whatever was adduced at the trial below to sustain the charge of malfeasance in office, in that appellant intentionally refused and failed to arrest members of the Police Department under his authority and command, knowing that such officers were committing public bribery and knowingly permitted them to fail to perform their duty to refrain from committing public bribery.

Since the record is replete with evidence that a system of public bribery was being conducted at the third precinct station of New Orleans during appellant’s service there as one of the Captains, it is manifest that the only question which the judge was called upon to decide was whether appellant knew of the system and intentionally failed in his duty to enforce the law. This involved a determination of a pure question of fact as our law plainly provides that intent or guilty knowledge * * * need not be proven as a fact, it may be inferred from the circumstances of the transaction”. See Article 445 of the Code of Criminal Procedure (R.S. 15 :445) and State v. Leonard, 162 La. 357, 110 So. 557.

By concluding in the instant case that the trial judge was without right to infer that, in view of all the circumstances disclosed by the evidence, appellant must have been aware of the graft system being literally conducted under his nose, I respectfully suggest that the majority is reversing the lower court on a question of fact and thus is assuming appellate jurisdiction which does not reside in this Court by the specific provisions of Section 10 of Article 7 of the Constitution.

In addition, I feel impelled to note again, as I did in my dissenting opinion in State v. Harrell, 232 La. 35, 93 So.2d 684, that, although the contention that there is no evidence to sustain the verdict is presented by way of a bill of exceptions taken to the overruling of a motion for a new trial (to which is attached all of the evidence adduced below), the appellant is ordered discharged when, under his own plea, the best he should obtain is a new trial. Since the court persists in this practice, it seems to me that a new procedural method, such as a demurrer to the evidence, should be devised so that the pleadings in these cases will conform to the orders rendered.

HAMITER, Justice

(dissenting).

The bill of exceptions found by the majority to have merit, and as a result of which they have decreed a reversal of the conviction and sentence, presents, in my opinion, purely a question of the sufficiency of the evidence. Of such a question we have no jurisdiction.

Therefore, I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

I do not think that there is any merit in Bill of Exception No. 4. In my view, the defendant in a criminal case is not entitled to the production of a prior written statement of a State’s witness in the hands of a police officer or the district attorney simply because on cross-examination by the defense the witness answers in the affirmative the question of “whether a copy would refresh his memory”.

In State v. Weston, 232 La. 766, 95 So.2d 305, to which the majority opinion in the instant case refers, this court in discussing Bill of Exception No. 6 reserved there made it clear that the defense is entitled to the production of a prior written statement of a State’s witness in the hands of the district attorney or the police only where a proper foundation for the impeachment of the witness has been laid by a showing that the statement sought is contrary to the sworn testimony of the witness, and that when such a foundation is laid, production of the document can be had for the purpose of impeachment.

In the instant case, however, the majority opinion does not say that a foundation was laid to impeach the witness by a showing that the witness had made prior inconsistent statements.

I dissent also from the holding of the majority on Bills of Exception Nos. 1 and 5. The reasons for disagreeing with the majority given by Justice McCALEB in his concurring opinion are correct, and I fully agree with his views on these bills.

      . “Malfeasance in office is committed when any public officer or public employee shall:
      “(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or “(2) Intentionally perform any such duty in an unlawful manner; or
      “(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner. * * * ” R.S. 14:134.

      . In so far as here pertinent, R.S. 15:8 declares that, except in the case of certain named crimes (not including malfeasance in office), “No person shall be prosecuted, tried or punished for any offense * * * unless the indictment, information, or affidavit for the same be found or filed within one year after the offense shall have been made known to the judge, district attorney or grand jury having jurisdiction; * *

      . Appellate Division No. 2 was composed of three members, Judges Prank T. Eche-zabal, J. Bernard Cocke, and Niels E. Hertz, all of whom filed carefully considered written reasons in support of their conclusions; Judge Hertz was in disagreement with the majority view and expressed the opinion that the judgment of the trial court should be affirmed.

      . Defendant’s application to this Court for writs was denied. See No. 43010 on the Docket of this Court.

      . The defendant, in an effort to discharge the burden which was his (see State v. Oliver, 196 La. 659, 199 So. 793) to show that the alleged offense had been “made known” to a proper officer or the grand jury more than one year before the indictment was returned, relied entirely on the contents of a report delivered to the Hartson grand jury in April, 1954— available since that time to successive grand juries as well as to the present District Attorney who took office on May 4, 1954. The said report, covering investigation of the New Orleans Police Department by the Special Citizens Investigating Committee of the Commission Council of New Orleans, known as the SCIC or “Kohn” Report, is assembled according to subject matter into six volumes and contains allegations of police bribery in connection with the conduct of various illicit pursuits said to flourish without police molestation in the different police districts of the City, including the Third. Evidence on the motion to quash was composed of this report, excerpts from which were relied on as substantiating the defendant’s claim, and the testimony of certain witnesses, among them two district attorneys and foremen of grand juries, to the effect, that the report had received most careful study and there had been exhaustive-hearings in an effort to trace every lead contained therein.

      . See State v. Thomas, 224 La. 431, 69 So.2d 738; State v. Mattio, 212 La. 284, 31 So.2d 801, certiorari denied 332 U.S. 818, 68 S.Ct. 145, 92 L.Ed. 395; State v. Davis, 208 La. 954, 23 So.2d 801; State v. Nomey, 204 La. 667, 16 So.2d. 226; State v. Dow, 203 La. 707, 14 So.2d 610; State v. Martinez, 201 La. 949, 10 So.2d 712; State v. Wilson, 196 La. 156, 198 So. 889; State v. Russell, 161 La. 167, 108 So. 324; State v. Dunnington, 157 La. 369, 102 So. 478; State v. Giangosso, 157 La. 360, 102 So. 429;, State v. Gani, 157 La. 231, 102 So. 318; State ex rel. Fernandez v. Perez, 151 La. 526, 92 So. 45.

      . Those who testified to having committed public bribery were Sgt. John Edward Bray, Sgt. Philip P. Fritcher, Lt. Louis L. Dumaine, Sgt. Harlan H. McGee, Jo.seph C. Parker (no longer employed by the Police Department), Oifieer Edward G. Kennedy, Thomas A. Clavin (dismissed in March, 1953), Lt. Clifford LeBlane, and Officer John Zarinski.

      . The questions and answers were the following:
      “Q. - You take the opposite from this that each captain over you that you had a discussion with? A. - Yes sir.
      “Q. - Can you name some of them to me? A. - That would be each one.
      “Q. - You told us at that time the captain was in the office? A. — Yes sir.
      “Q. - Can you remember what captains wore in the office at the time you put it in the tray at different times, you understand? A. - No, I don’t know what ones were there.
      “Q. - First, understand, going back to what you mentioned a while ago, would you give a positive statement you have discussed the matter of gro.ft with all the captains? A. - Sometimes, with one or the other.
      “Q. - You make the positive statement that you have discussed the matter of the distribution of graft with all the captains? A. - That is right, sir, but before I didn’t want to divulge to you all of that.
      “Q. - There is no qualifications? A.
      - No sir, there is no qualifications.
      “Q. - You talked about it with all the captains? A. - At some time or the-other.
      “Q. - At some time or the other with every captain while you were collecting?A. - Yes sir, correct sir.
      “Q. - As far as you are concerned you -believe that they know exactly what: kind of money it was? A. — Yes sir.
      “Q. - They knew the system? A. - Yes sir.
      “Q. - Your testimony now is that you did talk to every captain? A. - To the best of my recollection as they come in.”’


author: HAMLIN, Justice ad hoc.

text:
    232 La. 981
    POLICE JURY, PARISH OF JEFFERSON, v. NOBLE DRILLING CORPORATION, Jack C. Lockett (Made Defendant on Call in Warranty).
    No. 41156.
    Supreme Court of Louisiana.
    May 6, 1957.
    Louis H. Marrero, III, Marrero, for appellant.
    Frank H. Langridge, Gretna, for plaintiff-appellee.
   HAMLIN, Justice ad hoc.

By petitory action the Police Jury of the Parish of Jefferson sought to be declared the owner of and have delivered the possession of a tract of land, known as “Glisson Park”, located at Crown Point in the Parish of Jefferson. It based its claim on two plans of survey on file in the public records, contending that they constituted a dedication of the property to the public and that the property was used as a public park until exclusive possession was taken by the Noble Drilling Corporation.

Noble Drilling Corporation called in warranty its lessor, Jack C. Lockett, and filed an application for discharge. Articles 2703 and 2704, LSA-Civil Code; Article 43, Code of Practice.

After discharge of the Noble Drilling Company as a party-defendant, with reservation of its rights by the trial court, the defendant, Jack C. Lockett, filed an answer. He averred that he had legal title to the property through a number of mesne conveyances and a resolution of November 12, 1947, passed by the Police Jury, Parish of Jefferson, renouncing any rights which it might have to the property.

An intervention filed by Thomas V. Sharp, who joined with the plaintiff, was dismissed after hearing.

The trial court overruled various exceptions filed by the defendant, Jack C. Lockett, and after trial on the merits rendered judgment in favor of the plaintiff. The defendant, Jack C. Lockett, has appealed.

The record discloses that the property was originally a part of Ida Plantation. On June 14, 1909, Dominique Harang entered into a sale of Ida Plantation to J. E. Glisson, for a consideration of $16,100. A plan of survey, being a subdivision of Ida Plantation into plots and including a park area known as “Glisson Park”, was signed by George Robert, Surveyor, on August 18, 1909. Robert certified that he surveyed the tract of land and that the accompanying plat was a correct scaled map, the lines thereon being correct. This survey was filed in the public records on December 2, 1909, with the following superscription:

“In pursuance of the power vested in me by a meeting of the Board of Directors of the Southern Garden and Town-site Company held at the office of the company, 432 Carondelet Street, New ■Orleans, La. on 2nd day of Dec. 1909 I hereby dedicate to public use the streets, alleys, parks and ways at Crown Point, Louisiana as per this plan of survey also a strip 34' wide on the South Side of Plots 13 and 14 and extending from Bayou des Families to a point 120' west of Oak Row which said dedication makes Orleans Way from Bayou des Families to this point 50' wide.
“Witness my hand at New Orleans, La., on this 2nd day of Dec. 1909.
“Witness
H. C. Osborne “J. E. Glisson, President P. J. Pearson Southern Garden and Townsite Company.”

On November 26, 1909, J. E. Glisson had transferred his interest in Ida Plantation to Southern Garden and Townsite Company for stock of the company.

A map of Ida Plantation, property of Southern Garden and Townsite Company, in the form of a survey by J. W. T. Stevens, Civil Engineer, was filed in the public records of Jefferson Parish on November 1, 1910. This survey contained an area known as “Glisson Park”, identically located as in the Robert survey.

On March 4, 1911, Dominique Harang sold his interest in Ida Plantation to Southern Garden and Townsite Company.

During this period, Dominique Harang and Southern Garden and Townsite Company executed a number of deeds of sale of lots, referring therein to the survey of George Robert.

On February 19, 1912, Barataría Selling Association acquired from Southern Garden and Townsite Company, a large portion of the property formerly known as “Ida Plantation”. Lomas O. Stevenson in turn acquired this portion from Barataría Selling Association, and on March 24, 1916, he sold it to Isaac B. Rennyson. “Glisson Park” was in the confines of the Rennyson purchase.

Between 1916 and 1945, there were several sales and resales and a Sheriff’s Sale of the Rennyson purchase between I. B. Rennyson and the Columbia Building and Loan Association. Defendant avers that “Glisson Park” was not included in these transactions.

On June 25, 1945, I. B. Rennyson sold his interest in the property to the defendant, Jack C. Lockett. This sale contained an omnibus clause, which transferred all interest which Rennyson might have in the land formerly known as “Ida Plantation”.

On November 12, 1947, the Police Jury, Parish of Jefferson, passed the following resolution:

“Resolved, That ‘Glisson Park’, in the Town of Crown Point, Parish of Jefferson, State of Louisiana, bounded on the south and east by Bayou Bara-taría, on the southwest by Plot Eleven (11) and Lots One (1) and Two (2) of the Square fronting on Oak Row, on the northwest side by Squares One (1) Four (4) and Five (5) of the Town of Crown Point, and by Oak Row, Hauser Street, and Ouida Street, which Park was dedicated for public use by the then owner. The Southern Garden and Townsite Co., by the filing of a plan of survey by J. W. T. Stephens, C. E., dated November 1, 1910, in the Office of the Clerk of Court in and for the Parish of Jefferson, State of Louisiana, which dedication has never been accepted by the Police Jury of the Parish of Jefferson, be and the same is hereby declared subject to private ownership; and this Police Jury does hereby quit-claim, renounce and forever disclaim any right, title or interest in and to said Park, in favor of the present owner and claimant of said property, the said Jack C. Lockett.
“Resolved further, That this renunciation shall not in any manner affect the streets, boulevards, highways or lanes heretofore dedicated through said property, but that, on the contrary, this resolution is adopted with a full reservation of the rights of the public in and to said dedicated streets, avenues, boulevards or public passageways.
“Resolved further, That this Police Jury does hereby reiterate the fact that it never accepted the dedication of said Park, has never used the same for public park purposes, did not go into possession thereof, and has always treated the same as though it has never been dedicated.”

On February 28, 1949, Jack C. Lockett leased the property herein involved (Glisson Park) to Noble Drilling Corporation for a term of five years. The lease was filed for public record on May 23, 1949. The record shows that Noble Drilling Corporation fenced in a part of the property and went into possession of it.

On May 11, 1949, the Police Jury, Parish of Jefferson, rescinded its resolution of November 12, 1947, stating that it was legally without right to transfer or quitclaim its right to the premises.

The present action was filed on December 21, 1951.

The defendant contends that to be the successful litigant the plaintiff must stand on the strength of its own title — not on the weakness of defendant’s title — and that it has failed to bear this burden. Louisiana Code of Practice, Article 44. Defendant argues that the dedication of December 2, 1909 (survey of George Robert) did not comply with Act 134 of 1896, LSA-R.S. 33 :- 5051, and was not a valid statutory dedication; in the alternative, it contends that if the dedication was valid, it was a “common law dedication” and constituted a servitude only (upon the property), which was lost by the non-user of more than ten years.

Act 134 of 1896 provides:

Section 1. “ * * * whenever the owner or owners of any real estate situated in this State shall desire to lay off the same into squares or lots with streets or alleys between such squares or lots and with the intention of selling or offering for sale any of said squares or lots it shall be the duty of such owner or owners of such real estate, before selling any square or lot or any portion of same, to cause to be made and filed in the office of the Keeper of Notarial Records of the parish wherein such property is situated and copied into the Conveyance Record book of such parish, a correct map of the real estate so divided, which said map shall contain the following:
“7. A formal dedication made by the owner or owners of the property of their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to- public use."

Defendant argues that the above act provides that a dedication must be made by the owner of the property dedicated, and that at the time Southern Garden & Townsite Company attempted to dedicate “Glisson Park” it was not the owner of the property — the act of sale being passed on March 4, 1911. It is true that Dominique Harang transferred his interest in Ida Plantation to Southern Garden & Townsite Company on March 4, 1911; however, in the act of sale we find the following:

“And here the said J. E. Glisson acting in his personal behalf specifies and confirms this sale to the Southern Garden & Townsite Company, transferring and relinquishing to it any and all rights, title and interest which he has or might have under and by virtue of the agreement to sell the said property to him made by Dominique Harang dated January 29th., 1909, and June 14., 1909; and confirming the sale under private signature which he made to the said Southern Garden and Town-site Company, under private signature, acknowledged before J. F. Meunier, N. P., dated November 26th., 1909; registered in C.O.B. 29, fo. 68.”

We believe that the act of sale, dated March 4, 1911, was merely a formalization of prior transactions.

The act entered into on June 14, 1909, between Harang and Glisson, constituted a sale. Its very terms evidenced such intent, and it contained no conditions except payment of the price. The contract was complete as to both the vendor and vendee, and only default of payment of the price as stipulated would have been cause for annulling the contract.

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” LSA-C.C. Art. 2456.
“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing so far amounts to a sale, as to give either party the right to enforce specific performance of same.” LSA-C.C. Art. 2462.

In the very early case of Stephens v. Chamberlin, 5 La.Ann. 656, this Court had under consideration a contract similar to the one in the instant case, and it stated:

“The contract on which the suit is instituted is in terms a sale, and not an agreement to sell; but if considered, as in the argument, a mere agreement to sell, our Civil Code declares that the ‘sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and the price thereof.’ Art. 2431. And that even ‘a promise to sell amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price thereof.’ Art. 2437. In this case, the agreement was clothed with the formality required by article 2415 [LSA-C.C. art. 2440], for the sale of real property. The Supreme Court has often held that such an agreement as was reduced to writing and signed in the present case, is a sale, and constitutes a complete title to the vendee. Joseph v. Moreno, 2 La. 460. Barrett v. His Creditors, 12 Rob. 478. Crocker v. Neely [Nuley], 3 Mart.,N.S., 583. Pignati[e]1 v. Drouet, 6 Mart.,N.S., 432.” See also, Teal v. McKnight, 110 La. 256, 34 So. 434.

Having found that the act of June 14, 1909, between Dominique Harang and J. E. Glisson, constituted a sale, it follows that the transfer of November 26, 1909, by J. E. Glisson of his interest in “Ida Plantation” to Southern Garden and Townsite Company for stock of the company, was, likewise, a valid sale.

In the act of November 26, 1909, Southern Garden and Townsite Company assumed the unpaid installments, and the act also referred to the survey by George Robert. Therefore, the dedication of Glis-son Park provided for in the survey by George Robert in 1909 and the dedication of Glisson Park provided for in the survey by J. W. T. Stevens on November 1, 1910, were valid statutory dedications made by the then owner of the property. In any case, there was a substantial compliance with Act 134 of 1896. Metairie Park, Inc., v. Currie, 168 La. 588, 122 So. 859. Therefore, there was no necessity for a formal acceptance by the then public authorities of Jefferson Parish.

“While in a common-law dedication there must be an acceptance by use or otherwise on the part of the public, this is not necessarily so in the case of a statutory dedication. 18 C.J. sec. 68, p. 73. The effect of a statutory dedication is generally indicated by the statute itself.
“We are of the opinion in view of the language contained in Act 134 of ■1896, the dedication under review was complete without a formal acceptance by the public authorities. We are also of the opinion that the irrevocable character of the dedication was not affected by the fact that the property dedicated was not at once subjected to the uses designed. This view is sustained by the case of Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111, and the authorities therein cited.” Arkansas-Louisiana Gas Co. v. Parker Oil Co., Inc, 190 La. 957, 183 So. 229, 240. See, also, Richardson & Bass v. Board of Levee Commissioners, 231 La. 299, 91 So.2d 353, 372, 373.

The testimony of record discloses that the property was subjected to the uses designed by the Southern Garden & Town-site Company- — namely, a park. There was also a manifest intention on the part of Southern Garden & Townsite Company to dedicate the area herein involved as a park, since the original survey named the area “Glisson Park”. Mecobon, Inc, v. Police Jury of Jefferson Parish, 224 La. 793, 70 So.2d 687. In fact, the transfers to defendant’s ancestors in title mentioned the park as a boundary.

Under Act 134 of 1896, Glisson Pai'k was properly dedicated to the Parish of Jefferson as a public park. The Police Jury was, therefore, devoid of any legal right to renounce and disclaim its title to the park. Article IV, sec. 12, Louisiana Constitution of 1921, LSA. Its action in 1949, rescinding the resolution of 1947, did not constitute an impairment of the obligation of contracts.

For the reasons assigned, the judgment of the trial court is affirmed, and it is ordered, adjudged and decreed that the Police Jury, Parish of Jefferson, be, and it is hereby recognized as the sole owner of the following described property, to-wit:

“A certain piece or portion of ground, situated, lying and being in the Parish of Jefferson, State of Louisiana, in the District of Barataría, Town of Crown Point, designated as-‘Glisson Park’ on plan of Ida Plantation made by J. W. T. Stevens, C. E., dated November 1, 1910, a copy of which plan is attached to an act of sale before C. C. Friedrichs, Notary Public of Orleans Parish, dated April 27, 1920; and according to said plan said piece or portion of ground is-bounded on the South and East by Bayou Barataría, on the Southwest by Plot 11 and Lots 1 and 2 of Square fronting on Oak Row, on the Northwest side by Square 1, 4 and 5 of the Town of Crown Point, and by Oak Row, Hauser and Ouida Streets.”

All costs to be paid by the appellant, Jack C. Lockett.

FOURNET, C. J., absent.

McCALEB, J., concurs in the decree.

      . “That, I, D. Harang, for and in consideration of the price and sum of Sixteen Thousand One Hundred ($16,100.00) Dollars, payable as follows, to-wit: One Hundred ($100.00) Dollars cash, receipt of which is acknowledged, One Thousand ($1,000.00) Dollars on or before the 15th. day of July 1909, and Two Thousand ($2,000.00). Dollars, every three months thereafter until the full sum of Sixteen Thousand ($16,000.00) Dollars, has been paid. Deferred payments to bear interest at the rate of 8 per cent per annum. Do by these presents agree to sell J. E. Glisson, his heirs or assigns my plantation situated in Jefferson Parish Da. known as the “Ida Plantation” containing 626 arpents, bounded on the East by Bayou des Eamille, on the South by Bayou Barataría, on the West by “Inez Plantation and on the North by Browns Christmas Plantation. Being the same property acquired by me from Henry Veering and others * * * Together with all the improvements and appurtenances thereto belonging, including the live stock, and growing crop. And I agree that after One Thousand ($1,000.-00) Dollars has been paid as above stipulated to release my vendor’s lien and privilege on any portion or subdivision of said land on the said Glisson paying ($50.00) per acre for same and allow him to sell the stock and present growing crop. The amount thus received to be retained by me, D. Harang, and after I have deducted the actual expense of cultivation and works of Improvement since March 9th, 1908. I will apply the remaining proceeds of said sales to the payment on the land and to the installments as they fall due as stipulated above. Said land to remain in possession of D. Harang until Six Thousand1 ($6,000.00) has been paid.
      “I reserve the right to annul this contract on failure of said Glisson to make the payments as above stipulated and the said Glisson agrees that such failure will render this contract null and of no. effect.”

      . “It is understood and agreed between James H. Stephens and Harvey Chamber-lin, as follows: J. H. Stephens sells to said Chamberlin certain lands, (describing them) containing in all 70S-83-100 acres more or less, and to make title to him, or in the name of such person as he may designate; for which said Cham-berlin is to pay him two thousand and seven hundred dollars. Nine hundred dollars of which is to be paid by an accepted draft, on or before the 15th of February next; nine hundred dollars by note payable the 15th of February, 1850; and like sum on the 15th February, 1851, with eight per cent interest from date until paid. For said notes, the land is to remain mortgaged. * * * ”


author: HAMITER, Justice.

text:
    232 La. 996
    Leon John EVERHARDT v. Richard SIGHINOLFI.
    No. 43130.
    Supreme Court of Louisiana.
    May 6, 1957.

      Joseph Rosenberg, New Orleans, for appellant.
    Charles E. de la Vergne, New Orleans, for defendant-appellee.
   HAMITER, Justice.

Specific performance of a contract to sell real estate is demanded herein. The suit was dismissed on exceptions of no right and no cause of action, and plaintiff is appealing from the judgment.

For the purpose of passing on the exceptions the well pleaded allegations of fact of the petition, as well as the contents of the annexed document, are to be accepted as true. These reveal that on November 7,1955 plaintiff and defendant consummated a written contract wherein the former agreed to purchase and the latter to sell the premises known as Nos. 1718-20 ‘North Rampart Street, in the City of New Orleans, for $18,500 cash, it being stipulated that the act of sale was to be passed before purchaser’s notary on or prior to March 1, 1956. At the time 10% of the purchase price was deposited with the real estate agent. Thereafter, plaintiff caused the title to be examined and made other necessary arrangements to effect the purchase.

On or about December 1, 1955, when seeking to contact defendant, plaintiff was informed by defendant’s wife that he had left the United States and would not return until about February 1, 1956. Prior to the latter date (and thereafter) plaintiff was ready, willing, able, and eager to take title; and, in the absence of the defendant from the country, he communicated this information to the defendant’s wife, telling her that February 1, 1956 at 2:00 P.M. o’clock was the time set for passage of the act of sale. He was then informed that defendant would not return until sometime in April, 1956. On February 1 plaintiff again contacted such wife and learned that defendant had not given anyone a power of attorney for the passing of title. Nothing further was done within the time (on or prior to March 1, 1956) fixed in the written agreement for executing the act of sale.

Defendant did not return to the United States until April 12, 1956. Immediately thereafter plaintiff notified him to appear in the notary’s office on April 20, 1956, at 3:30 P.M. o’clock, to transfer title. Plaintiff was there at the designated time ready, willing and able to comply with the terms of the contract; but the defendant did not appear, he having informed plaintiff that he would not complete the sale.

This suit was filed four days later pursuant to the following provision contained in the annexed written contract: “In the event the seller does not comply with this agreement within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option.” (Emphasis ours.)

The petition, in our opinion, states both a right and a cause of action. As above pointed out it shows that within the specified time plaintiff was fully prepared and eager to accept title, and he so informed defendant’s wife; whereas the defendant prevented the timely passage of the sale by his having absented himself from the United States throughout the mentioned period without leaving a power of attorney. And according to an express provision of the contract (above quoted) plaintiff had the right to demand specific performance such as he now seeks, on defendant’s failure to comply with the agreement.

Under the sustained exceptions of no right and no cause of action the defendant takes the position that, for the success of this suit, plaintiff was required to formally place him in default prior to the last date for performance, and that such was not done. Seemingly, an act of that kind would have been premature for defendant had almost until the last moment of the designated date to tender title (Revised Civil Code Article 2057). Be that as it may the absence of defendant rendered impossible his compliance with the agreement; and any formal demand made on him to comply would have been vain and useless.

The cases cited by defendant in support of his position are inappropriate because of dissimilar factual situations. In Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868, and Hoth v. Schmidt, 220 La. 249, 56 So.2d 412, primarily relied on by him, the involved contracts of sale contained a provision (not found in the instant agreement) reciting as follows: “In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default * * *; or the vendor may demand specific performance. * * * ” By reason of this provision, together with a failure of tender on the part of the purchasers, the demands of plaintiffs were denied (for specific performance in the Di Cristina case and for double the amount of the deposit in the Hoth case). In each the court held that the above italicized language of the contract automatically placed the purchaser in default on his failure to tender performance within the time specified (according to Revised Civil Code Article 1911(1) a party is deemed to be in default by the mere act of failure to comply if and when the contract specially so provides); and having been in legal default the plaintiff purchaser could not succeed in his demand. (Emphasis ours.)

In Davis v. McCain, 171 La. 1011, 132 So. 758, Lamar v. Young, 211 La. 837, 30 So.2d 853 and Harrell v. Stumberg, 220 La. 811, 57 So.2d 692, also cited by this defendant, the demands of the respective purchasers were rejected for the reason that they (unlike this plaintiff) were not ready, willing and able to take title within the time fixed in the contracts.

Differing radically from the above quoted contractual language involved in the Di Cristina and Hoth cases, the provision contained in the instant agreement respecting the purchaser reads: “In the event purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso facto, forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.” This language clearly negatives the idea of the purchaser’s being in automatic default for mere failure to perform, it requiring that before the deposit is forfeited the vendor must tender title. And it follows that, since the defendant herein did not tender a title, this plaintiff (unlike the purchaser plaintiffs in the Di Cristina and Hoth cases) was not in legal default. Accordingly, he could place defendant in default and demand specific performance. This course is contemplated by Revised Civil Code Article 1911(2) reciting: “The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:

******

“2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing * * (Italics ours.)

In J. F. Auderer Laboratories, Inc., v. Deas, 223 La. 923, 67 So.2d 179, 183, 45 A.L.R.2d 1026, which was a specific performance action to enforce an executory contract to sell, this court applied such codal provision and said: “ * * * counsel contends that, in any event, defendants have been guilty only of a passive breach of the contract and that it was therefore an indispensable prerequisite to the cause of action that it be shown that they have been placed in default.

“The short answer to this point is that the bringing of this suit was a sufficient putting in default under Article 1911 of the LSA-Civil Code. This is a suit for specific performance; it is not an action for damages for the violation of a contract — it has for its obj ect the enforcement of the agreement. In such instances, the bringing of the suit is a putting in mora. Davis v. Spurlock, 3 La.Ann. 208 and Healy v. Southern States Alcohol Mfg. Co., 136 La. 1080, 68 So. 132.”

For the reasons assigned the judgment appealed from is reversed and set aside, the exceptions of no right and no cause of action are overruled, and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. Appellee shall pay the costs of this appeal, and all other costs shall await the final determination of the litigation.


text:
    232 La. 1004
    Mrs. Viola Womack RABUN v. John L. RABUN.
    No. 43116.
    Supreme Court of Louisiana.
    May 6, 1957.

      Hynes, Mathews & Lane, Baton Rouge, for plaintiff-appellant.
    George S. Womack, Baton Rouge, for defendant-appellant.
   HAMITER, Justice.

Presented here is the single question of whether the divorced wife is entitled to alimony for her support under Revised Civil Code Article 160.

On February 4, 1955 Mrs. Viola Womack Rabun obtained a judgment of separation from her husband, John L. Rabun, on the ground of abandonment. In the proceeding she had sought from him alimony of $300 per month for herself and for their minor son, then approximately thirteen years of age, it being (according to the allegations of her petition) “a sum proportionate to his revenue.” The husband, in answering, had averred his willingness to pay the alimony demanded; and an award therefor was-included in the separation judgment.

More than a year and sixty days elapsed' without the wife’s taking any further action,, and on April 5, 1956 the husband instituted' proceedings for a final divorce which was-granted. In the initial divorce judgment alimony for the support of the wife and', the child was fixed at $300 per month.

The husband filed an application for a rehearing. Therein, he resisted payment of alimony for his divorced wife but did not dispute his obligation of support for the-child. A rehearing was granted. Thereafter, the award was reduced to $250 per month, and the alimony was specifically allocated at $150 for the child and $100 for Mrs. Rabun.

Both parties appealed from the judgment-rendered on the rehearing. The husband' complains only of the allocation for the wife. Directing attention to the record, he insists that presently she has sufficient means-for her maintenance and is therefore without right to any alimony. The wife, om her appeal, seeks to have the award increased to $300 per month, as in the initial judgment, allocated at $150 for herself and $150 for the support of the minor child.

The question of what is to be considered in awarding alimony under Revised Civil Code Article 160 (after a divorce has been granted) is no longer open to serious debate. In numerous cases it has been resolved, particularly in the recent ones of Smith v. Smith, 217 La. 646, 47 So.2d 32, Brown v. Harris, 225 La. 320, 72 So.2d 746 and Stabler v. Stabler, 226 La. 70, 75 So.2d 12.

In the Brown case [225 La. 320, 72 So.2d 747] we summarized the jurisprudence on the subject as follows: “In defending her judgment for alimony, the wife relies on-Article 160 of the Civil Code, which allows a divorced wife alimony when she ‘has not sufficient means for her maintenance’. The alimony provided for in Article 160 is, under the jurisprudence of this state, in the nature of a pension accorded by law to the wife. This alimony or pension is nothing more than a pure gratuity which the court may allow and fix in its discretion at an amount not to exceed one-third of the husband’s income, and is revocable when it becomes unnecessary. [Numerous cases are cited here.]

“In Fortier v. Gelpi, supra (195 La. 449, 197 So. [138] 140), this court said:

“ ‘ * * * The test by which the court must be guided in such cases in fixing the amount of the alimony or pension is not what it takes to support the divorced wife in the manner in which she has been accustomed to live, but what will provide her with “sufficient means for her maintenance.” In arriving at this amount, necessarily the husband’s ability to pay must be taken into consideration. * * * ’ [Numerous cases are cited here.]

“In Smith v. Smith, supra, this court had occasion to consider the meaning of the phrase ‘sufficient means for her maintenance’ in Article 160, and concluded that ‘maintenance’ as this word is used in the article includes primarily food, shelter, and clothing. The amount necessary for maintenance is to be determined by the facts and circumstances of each particular case, within the sound discretion of the trial judge, but, inasmuch as there is no longer an obligation under Article 120 for the husband to support the wife and the alimony is nothing more than a pension or gratuity, the trial judge in fixing the amount is not bound by the manner in which the wife has been accustomed to live.”

In the instant controversy we find from the record that Mrs. Rabun, at the time of the trial, was employed at a net salary of approximately $125 per month. Additionally, she owned (as a result of a community property settlement) the following: cash on deposit $3,705.47; a home valued at $13,000, but subject to a mortgage indebtedness of $8,123.23 which she assumed; household furniture and fixtures; a 1951 Studebaker automobile; and a $2,500 promissory note executed by Mr. Rabun, it bearing interest and being payable within three years in annual installments. Omitting the household furnishings and the automobile, Mrs. Rabun had net assets valued at about $11,-000.

In view of these net assets, of the mentioned monthly salary, and of our settled jurisprudence on the subject in question, we are forced to conclude that Mrs. Rabun has sufficient means for her maintenance and, therefore, is not entitled to any alimony for herself. She is approximately as “well off” as the divorced wife in each of the above referred to three recent cases wherein it was held that sufficient means existed.

In Smith v. Smith, supra, the divorced wife’s assets (as shown by the record in the case) consisted of bonds worth about $5,-000, cash of approximately $3,000, and unsecured notes of the husband in the principal amount of $12,000. However, her only income was from the capital assets, she having been unemployed. In Brown v. Harris, supra, the wife was employed at a salary of $150 per month, but had assets of only $6,-600 which consisted of building and loan stock that earned dividends of $16.50 per month. In Stabler v. Stabler, supra, the wife owned real estate valued at $25,000 on which there was a mortgage indebtedness of some $3,800. Her entire income was a net $120 per month received from rentals produced by the property; apparently she was physically unable to work.

It is appropriate to say here that the $150 per month award for the support of the minor son, of whom Mrs. Rabun has custody, is subject to a change, adjustment or modification at any time that circumstances justify it. (Incidentally, we notice from the record that in addition to paying that monthly alimony Mr. Rabun has been

sending to the son, voluntarily, the sum of $12 per week for his music lessons, school lunches, entertainment, etc.)

For the reasons assigned the judgment appealed from is reversed and set aside insofar as it awards alimony for the support of Mrs. Rabun, and her demand therefor is rejected. In all other respects the judgment is affirmed. Costs of this appeal shall he paid by Mrs. Rabun.

FOURNET, C. J., absent.


text:
      232 La. 1011
    Rufus W. FONTENOT, Collector of Revenue, State of Louisiana, v. S. E. W. OIL CORPORATION.
    No. 42913.
    Supreme Court of Louisiana.
    May 6, 1957.
    Robert L. Roland, Levi A. Himes and Chapman L. Sanford, Baton Rouge, for appellant.
    Wilkinson, Lewis, Wilkinson & Madison, Shreveport, for appellee.
   HAMITER, Justice.

On this appeal the Collector of Revenue for the State of Louisiana seeks to have set aside the ruling of the State Board of Tax Appeals, as well as the judgment of the district court affirming it, which disapproved an assessment of a “use” tax levied (under LRS 47:301 et seq., entitled Sales Tax) against the defendant corporation on an oil drilling rig brought into this state from Texas.

The controversy was tried on a stipulation of facts reflecting that in 1953 the S. E. W. Oil Corporation was the owner of the drilling rig which it had been using for sometime in the State of Texas. In May of that year it moved the used rig into Louisiana for the purpose of drilling on a lease that it owned; and on June 22, 1954 the Collector caused the mentioned assessment of $6,422.85 to issue against the corporation, this being composed of a “use” tax of $4,902.95, penalty of $1,225.73, and interest to June 20, 1954 of $294.17. The amount of the tax was computed at 2% of $245,147.50, the purchase or cost price of the drilling rig when new. The corporation denied owing that amount, but it offered to pay a 2% tax based on the original cost less depreciation, stipulated to be $164,413.85.

Subsequent negotiations between the parties failed to produce an agreement, and the corporation filed a petition with the State Board of Tax Appeals wherein the above recited facts were set out. It prayed that “the total amount of the assessment should be reduced to two (2%) percent of the value of the property at the time it was moved into Louisiana, being $164,413.85, or $3288.28.”

The Board ruled in favor of the corporation, holding that the 2% tax was payable only on the value of the property when it was brought into Louisiana, not on its original cost or purchase price. As indicated above, the district court (in a proceeding instituted there) affirmed that ruling; and from the judgment the Collector is prosecuting this appeal.

The defendant corporation does not dispute the applicability here of the provisions of LRS 47:301 et seq. (entitled Sales Tax). It concedes that a “use” tax is due on the drilling rig, and it questions only the base employed by the Collector for computing the tax. Therefore, the sole issue presented for our determination is whether (assuming the applicability of the statute) the tax should be computed on the original purchase or cost price of the property or on its value at the time it was brought into Louisiana.

In support of his contention that the 2% “use” tax is to be computed on the original purchase or cost price of the drilling rig, regardless of the value of that article when imported into Louisiana, the Collector invokes the following provisions of the statute in question:

“§ 302. Imposition of tax

“A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:

* * *

“(2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.

“§ 301. Definitions

“As used in this Chapter, the following words, terms'and phrases have the meaning ascribed to them in this Section, except when the context clearly indicates a different meaning:

* * *

“(3) ‘Cost price’ means the actual cost of the articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor or service cost, transportation charges or any other expenses whatsoever.”

The Collector insists that the Board of Tax Appeals and the district court erred when interpreting these provisions (in the interpretation they were aided by other language of the statute) to mean that “ * * * upon importation into Louisiana for use, the cost to be considered for purposes of assessment would be the cost less depreciation,, i. e., the value of the tangible personal property computed as of the time of entry thereof into Louisiana, * * *.” He argues-that such provisions are plain and unambiguous and that, therefore, no interpretation of them is permitted, citing 50 American Jurisprudence verbo Statutes, Section. 225 which states: “A statute is not open to' construction as a matter of course. It is-open to construction only where the language used in the statute requires interpretation, that is, where the statute is ambiguous, or will bear two or more constructions, or is of such doubtful or obscure-meaning, that reasonable minds might be-uncertain or disagree as to its meaning. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation, and the court has no right to look for or impose another meaning. * * * ”

In our opinion the words “cost price” as used in the above quoted provisions are of doubtful or obscure meaning. To apply them literally, as the Collector contends should be done, would tend to make the statute unjust, unreasonable, absurd, and contrary to the public interest — a result which clearly the lawmakers did not intend. For example, this defendant brought to Louisiana a used drilling rig purchased sometime previously, and it was assessed with a “use” tax based on the original purchase price; whereas, had a competitor at the same time purchased a similar rig in like used condition and had imported it to this state the assessment, for a much smaller tax, would have been predicated on its then cost price or value. Moreover, it is possible that a “use” tax based on the original cost of an article could exceed the actual value of that article at the time of importation, in which event it would be practically confiscatory. Consequently, such provisions are open for construction, and this should be accomplished by a consideration of the purpose of the statute and of other language contained therein.

In Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11, this court quoted approvingly a declaration of the United States Supreme Court to the effect that a “use” tax is an integrated part of a sales tax, its purpose being to remove the buyers’ temptation to place their orders in other states in the effort to escape payment of the tax on local sales. In view of this declaration it would seem that the “use” tax provided for in LRS 47:301 et seq. was primarily intended to affect items purchased out of this state for immediate importation to and use in this state — a tax in lieu of the sales tax. Also supporting this conclusion are provisions of the state that exempt property on which an equivalent tax has been paid in the state where purchased (Section 305); that prohibit the duplication of a use and sales tax (Sections 302 and 303) ; and that direct dealers located in other states to collect the prescribed tax on property sold by them (collections to be made at the time of sale) for use or consumption in this state (Section 304).

In addition to the foregoing recitations the statute provides :

“§ 303. Collection from dealer

“The tax imposed under R.S. 47:302 shall be collectible from all persons, as hereinafter defined, engaged as dealers, as hereinafter defined.

“On all tangible personal property imported, or caused to be imported, from other states or foreign country, and used by him, the ‘dealer’, as hereinafter defined, shall pay the tax imposed by this Chapter on all articles of tangible personal property so imported and used, the same as if the said articles had been sold at retail for use or consumption in this state. For the purpose of this Chapter, the use, or consumption, or distribution, or storage to be used or consumed in this state of tangible personal property, shall each be equivalent to a sale at retail, and the tax shall thereupon immediately levy and be collected in the manner provided herein, provided there shall be no duplication of the tax in any event.” (Emphasis ours.)

According to this section the person importing an article for use in this state must pay the “use” tax the same as if it had been sold at retail, and such use shall be considered equivalent to a sale at retail as of the time of importation. These provisions, along with the others above mentioned, clearly indicate that the “use” tax is to be computed on the retail price the property would have brought when imported — that is, its then value or worth.

From all of which we conclude, just as the Board of Tax Appeals and the district judge concluded, that the instant “use” tax assessment against the defendant corporation can be no greater than 2% of $164,413.-SS, the true value of its drilling rig when imported to this state.

For the reasons assigned the judgment appealed from is affirmed.


text:
    232 La. 1019
    STATE of Louisiana v. Charlie COSTON.
    No. 43387.
    Supreme Court of Louisiana.
    May 6, 1957.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for relator.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Sam L. Wells, Dist. Atty., Colfax, for respondent.
   HAMITER, Justice.

In a bill of information the defendant, Charlie Coston, was charged with having killed, on or about December 30, 1956, a female wild deer in violation of LRS 56:124.

Prior to arraignment an exception was filed in which the accused pleaded: “The provisions of R.S. 56:131 have not been complied with, in that, among other things,' the defendant was not taken before a justice of the peace prior to the filing of criminal charges against him.

“Under the laws of the State of Louisiana, no criminal charge can he entertained unless the defendant is taken before a justice of the peace and has had made upon him an oral demand for the amount of the penalty provided by R.S. 56:128.

“If an oral demand for the appropriate penalty is made before the justice of the peace and then and there paid by defendant no criminal charges can thereafter be prosecuted.”

On a hearing of the exception the district attorney and defense counsel stipulated “ * * * that after the defendant, Charlie Coston, was arrested he was not taken before a justice of the peace and there had made upon him an oral demand as is provided by R.S. 56:131. The defendant was arrested and criminal charges were filed immediately. Nothing was done by the arresting officers or any other law enforcement officers to comply with the provisions of R.S. 56:131.”

The district court overruled the exception ; and, after a trial, it adjudged the accused guilty of the charge. The sentence imposed was imprisonment in the parish jail for fifteen days and a fine of $50.

The cause was brought here, on the application of the defendant, under our supervisory powers.

Conservation and protection generally of wild birds and game are provided for in Louisiana Revised Statutes Part IV, Sub-part A, Title 56, Sections 101 to 140, both inclusive. Section 124 prohibits the taking of “any doe (a female wild deer), at any time”, and it denounces other acts inimical to conservation. Section 139 sets forth the general criminal penalty to be imposed for a violation of the recited protective measures.

Also contained in the mentioned Sub-part A, however, are sections providing for the imposition of a civil penalty respecting a violation. The provisions thereof which are pertinent here read as follows:

“§ 128. * * * The state has a civil right of action for a penalty of twenty-five dollars, which shall be entered, without suspension, as a civil judgment against any defendant adjudged to have violated this Sub-part ; for a second offense the civil penalty shall be one hundred dollars; for a third offense two hundred dollars with revocation of license; all without right of suspension.

2{í ‡ >}í i}C jfc *

“§131. * * * In cases of arrests for violation of the provisions of this Sub-part, the arresting officer, before making applicable criminal charges, shall bring the alleged defendant before any justice of the peace in the parish where the offense was committed without regard to the domicile or residence of the offender, and make oral demand for the amount of penalty allowed to be sued for in the case, not exceeding one hundred dollars. * * * After such civil demand for the penalty has been made and docketed by the justice, the defendant may, at his discretion for purposes of compromise, and without prejudice, propose to pay one half of the minimum penalty for which judgment could be rendered against him after trial; and such amount may then and there be paid in cash to the justice, plus one dollar and fifty cents as costs to be paid to the justice. The judgment shall be entered accordingly as a compromise judgment and marked satisfied on the records of the court when so paid. If the offense charged as causing the penalty claimed, in the opinion of the arresting officer be accompanied by acts indicating contempt for the law violated, or other evidence repelling the grant of mercy or consideration, then the officer may enter his objection to compromise and compromise shall not be entered, and the case shall come to trial as hereinbefore provided. In any case, regardless of the consent of the arresting officer, a compromise judgment may be entered at any time in an amount not less than double the minimum penalty, if judgment and costs be paid then and there.

“§ 132. * * * In any case where a civil judgment has been satisfied, the department shall not prosecute any criminal charge which may have been made for the same offense.” (Italics ours)

In the instant cause defendant’s exception, we think, should have been sustained. According to the plain provisions of Section 131 the arresting officers were required to bring a civil proceeding against the accused (in a justice of the peace court of the parish where the offense was committed) “before making applicable criminal charges.” Institution of a civil action against him, in other words, was a condition precedent or a prerequisite to his being charged criminally. And the above quoted stipulation discloses that such was not done.

Whatever be the purpose of the civil proceeding thus provided for we do not know with certainty. Apparently, it was primarily designed to permit, through a compromise judgment, the avoidance of criminal prosecution by a person who commits a violation of the game laws unwittingly or in whose favor there are mitigating circumstances. This is suggested by those provisions of Section 131 which authorize a compromise by the payment of one-half of the civil penalty demanded (plus costs), unless in the opinion of the arresting officer there were “acts indicating contempt for the law violated, or other evidence repelling the grant of mercy or consideration.”

The state, in the briei of its counsel, argues: “If we assume that R.S. 56:131 et sequor must be followed—then there can be no enforcement of the fish and game laws by the criminal courts. Only a $25 penalty can be inflicted against a person who is apprehended for willfully killing a doe deer. Certainly this small ‘civil’ penalty will not deter willful game violators and our deer population will soon be decimated. * * * ” Whether the prescribed civil proceeding with its attendant penalty militates against adequate wild life protection is not for the court’s determination. The question is one of policy which the lawmakers must resolve.

That the provisions of LRS 56:101 et seq. require the institution of a civil proceeding against a game law violator before criminal charges are filed is not seriously disputed by the state. Its brief is almost entirely directed to the contention that such provisions are unconstitutional in that they attempt to confer criminal jurisdiction on justices of the peace in violation of Article VII, Section 48 of the Louisiana Constitution. However, the question of constitutionality cannot now be considered by us inasmuch as it was not properly raised in the district court. See State v. Quinn, 155 La. 287, 99 So. 222.

For the reasons assigned the writs heretofore issued are made peremptory, the conviction and sentence are set aside, and the defendant is discharged.