text:
    KILPATRICK v. BEARDEN et al.
    No. 7271.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Application for Rehearing Dismissed Jan. 6, 1949.
    Burt W. Sperry and Thomas M. Hayes, Jr., both of Monroe, for appellant.
    Fink & Fink, of Monroe, and Armand Rabun, of Farmerville, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $1,400 representing damages alleged to 'have been suffered by reason of breach of contract on the part of defendants, S. J. Bearden and his daughter, Morean Bearden Russell. Plaintiff appeals from judgment of the district court in favor of defendants.

The pertinent facts in connection with the subject matter of the litigation are as follows:

On September 5, 1946, Morean Bearden, who was at the time unmarried and has since beeen married to Sam C. Russell, executed an oil, gas and mineral lease covering a tract of land of some 140 acres located in Union Parish, Louisiana, to and in favor of Armour K. Kilpatrick, plaintiff herein. The negotiations prior to the execution of the lease appear to have been conducted by one W. B. Taylor, acting as agent for plaintiff, and S. J. Bearden, father of Morean Bearden Russell, as agent for his said daughter. The lease, to which was attached a draft on plaintiff, was deposited in the Farmerville Bank, Farmer-ville, Louisiana. The consideration recited in the lease, and reflected by the amount of the draft, was the sum of $2,800, and there was noted upon the face of the draft the words “upon approval of title.” On or -about September 20th, plaintiff’s attorneys, Messrs. S'hotwell and Brown, rendered an opinion based upon a chain of title which disclosed an outstanding one-half interest in the minerals in and under the tract described to be vested in Armand F. Rabun. On September 20, 1946, the defendant, Morean Bearden Russell, executed a deed of conveyance covering the property involved to and in favor of her father, S. J. Bearden. There is considerable testimony in the record with respect to the transfer of the property from Bearden to his daughter and the retransfer which would indicate that the transactions were simulated, but we find it unnecessary to rule on this point. By instrument dated October 10, 1946, S. J. Bearden, executed an oil, gas and mineral least on the property described to and in favor of the Sun Oil Company, for a recited consideration of $4,000. By instrument dated October 11, 1946, Armand F. Rabun ratified and confirmed the said lease. By letter dated October 16, 1946, addressed to Mr. and Mrs. Sam C. Russell, the plaintiff, Kilpatrick, communicated a purported acceptance of the lease agreement of September 5th, the body of which letter we quote in full, as follows:

“Title to the above captioned property has been approved in you to my satisfaction as of September 5, 1946. I am, therefore, ready and willing to go through with our agreement of that date with reference to the acceptance of the lease agreement entered into between us.
‘‘It has come to my attention, however, that subsequent 'to our agreement, you have transferred subject property to a third party, who, has in turn, encumbered same with a lease, thereby making our agreement insusceptible of performance on your part.
“This is to request that you either reacquire subject property and cancel the lease placed thereon by your vendee and go through with our agreement, or reimburse me in damages for your breach thereof in the amount of $1,400.00, which sum represents the amount of profit I can presently realize on said lease if you comply with your obligations per our agreement. You are also called upon, in the event you refuse to comply with our agreement, to reimburse me for expenses incurred for abstract and title examination of subject property.”

Plaintiff's action was based primarily upon the contention that he had a bona fide offer of $30 per acre on the leased property which would have netted him a profit of $1,400, the amount which he seeks to recover in this suit. Evidence of the purported offer, in addition to certain oral testimony by witnesses on trial of the case, is found in a letter of date September 14, 1946, written to plaintiff by one C. E. Petty, which letter reads as follows:

“Dear Mr. Kilpatrick:
“I was disoussipg with you this morning a certain lease described as follows:
“Sy2 of NWy4, and the NE% of NWy4. and W% of NWj4 of NE34, Section 3, Township 19, Range 1 East, Union Parish, containing 140 acres more or less.
“You were buying the .above described lease from Mrs. Sam Russell. On the Ownership Map that I was shown -by you, it shows in the name of S. J. Bearden, father of Mrs. Russell.
“This is to confirm my offer to you of $30.00 per acre for this lease to be paid immediately upon opinion of -title rendered by Shotwell and Brown, Attorneys, Monroe, La.
“Please execute and deliver this as soon as possible, and furnish me a possession affidavit.
“Respectfully submitted,
“C. E. Petty
“C. E. Petty”

Plaintiff predicates his claim primarily upon the contention that the defendant, Morean Bearden Russell, breached her contractual obligations by transferring the property covered by the lease to the defendant, S. J. Bearden, and, on the basis of these facts and conclusions deduced therefrom, plaintiff claims that his damages, have been the result of a conspiracy between the two defendants, for which they are solidarily liable; alternatively, that the defendant, Morean Bearden Russell, is personally liable for breach of contract evidenced by her transfer of the property subject to the lease thereby rendering the lease contract insusceptible of performance on her part; again, alternatively, plaintiff asserted his claim against defendant, S. J. Bearden, on the ground that the damages resulted from said Bearden’s lack of authority as agent, or from the fact that he exceeded his powers as agent.

There is a vast amount of testimony in the record with respect to oral agreements and understandings between the parties, and their respective interpretations thereof, much of which is disputed and conflicting. We deem it unnecessary to indulge in any lengthy discussion of these phases of the matter by reason of the fact that, in our opinion, it may be adjudicated on the basis of one fact which appears to us to have been conclusively established.

The chain of title procured by Taylor as plaintiff’s agent and submitted to Shotwell and Brown, attorneys, disclosed that the defendant, Morean Bearden, joined by her father, the defendant S. J. Bearden, by instrument dated March 17, 1938, -sold and conveyed to Armand F. Rabun an undivided one-half interest in and to all -the oil, gas and other minerals on and under the tract of land involved in this suit, and that the -said Rabun was the record owner of the minerals described on September S, 1946, the date of the purported lease to plaintiff. It is clear that the payment of the consideration agreed upon between the parties, namely, $2,800, was subject to approval of title, and it i-s also clearly established, by reason of the facts above set out, that the title was not approved. Reference to the offer made by Petty to plaintiff, which is the basis of plaintiff’s claim for damages, further shows that said offer was contingent upon approval of title by the same attorneys, Messrs. Shotwell and Brown. The record is devoid of any evidence whatsoever to the effect that title <was approved by Messrs. Shotwell and. Brown, and it is noted that plaintiff’s purported acceptance on date of October 16, 1946, which was almost four weeks after the conveyance from Mrs. Morean Bearden Russell to S. J. Bearden and some six days after the execution of the lease from Bear-den to the Sun Oil Company, contains the somewhat cryptic statement:

“Title to the above captioned property has been approved in you to my satisfaction as of September 5, 1946.”

The above statement is absolutely unsubstantiated by any other evidence or testimony in the record. There was no change in the status of title between September 5th, the date of the lease to plaintiff, and his alleged acceptance on date of October 16th. If the title was satisfactory to plaintiff on October 16th, retroactively to September 5th, there is no explanation as to why he had not communicated his acceptance long prior to October 16th, which fact appears to be materially relevant in view of the offer for the purchase of the lease at a profit to plaintiff made by Mr. Petty on September 14th. Nor did plaintiff introduce any testimony which would justify the conclusion that the title,- which he claimed was satisfactory to him, was satisfactory to his proposed assignee. Upon this fact would depend plaintiff’s right and claim to damages, and, only by an affirmative showing, could he sustain such claim.

Our learned brother of the district court was obviously influenced by this same consideration and, in a most commendable spirit of fairness, he incorporated in his written opinion the following statement:

“If I am in error in reaching the conclusion that Messrs. Shotwell and Brown, plaintiff’s attorneys, never approved the title to the leased property, upon plaintiff’s attorney calling the Court’s attention to that fact I will grant a rehearing in the case and permit his counsel to file said attorney’s opinion in the record and will then give the case further study in the light of the information contained in said opinion.”

• The record does not reflect any effort on the part of plaintiff or his counsel to take advantage of the offer made by the trial judge, and we can only conclude that, for obvious reasons, the information was not available.

In our opinion the agreement between plaintiff and defendants was clearly conditional. It is urged on behalf of plaintiff that he was entitled to a reasonable time for the clearing of the objections to the title. Without venturing any conclusion as to the merit of this argument, we are constrained to hold, under the facts of the instant case, that plaintiff has utterly failed to show by any degree approaching a preponderance of the evidence, any effort either to clear the title himself or to have it cleared by defendants. It would appear that if the matter was of the importance and value claimed, plaintiff would have exercised himself more vigorously and promptly in bringing it to a conclusion. His failure to do so must be construed against his contentions. This, coupled with the fact that his only definite manifestation of an intention to accept was made known only after the passage of an appreciable period of time subsequent to the conveyance and lease of the property to other parties, leads to the inescapable conclusion that plaintiff, by his own actions, forfeited any rights which he might have timely asserted.

Despite the difference on the point of an agreement as to a definite time, the facts of the case before us are decidedly analogous to those involved in Flournoy v. Miller, 114 La. 1028, 38 So. 818, 819. We believe that the pronouncements in the cited case are appropriate to a determination of the issue herein, particularly the principle which was stated by the court as follows:

“The contract was not a promise to sell or a promise to buy, pure and simple. One party offered to sell provided the title was approved as before mentioned; the other promised to buy on the same condition. The latter could not insist upon the sale, for the attorneys did not succeed in finding a clear title within time stipulated.”

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    KANSAS v. SUN INDEMNITY CO. OF NEW YORK.
    No. 19013.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Rehearing Denied Jan. 10, 1949.
    Thomas M. Brahney, Jr., of New Orleans, for plaintiff-appellee.
    Lemle, Moreno & Lemle, of New Orleans (Pat F. Bass, of New Orleans, of counsel), for defendant-appellant.
   McBRIDE, Judge.

This appeal involves the suit of an assured, Fisher Kansas, against his workmen’s compensation insurer; Sun Indemnity Company of New York, in which he seeks to recover $750 attorneys’ fees which were incurred in defending himself in a workmen’s compensation action brought by a widow who claimed that her husband, while employed by Kansas, was killed.accidentally during the scope and course of the employment.

The compensation suit was brought by Edna Harris against Fisher Kansas, the Sun Indemnity Company of New York, his insurer, and Nick Christiana; the plaintiff sought to recover from the named defendants, under the workmen’s compensation laws of the State of Louisiana, for the 'death of Lonnie Harris, who, she alleged, was the employee of both Fisher Kansas and Nick Christiana. The petition charged in substance that Fisher Kansas and Nick Christiana were conducting poultry businesses in the City of New Orleans; that in the course of his employment by Christiana the deceased undertook a trip to Gainesville, Georgia, as the driver of one of Christiana’s trucks, for the purpose of securing poultry; that while laying over in Gainesville Lonnie Plarris was employed by Fisher Kansas, acting through 'his brother and agent Izzy Kansas, to drive a Kansas poultry truck back to New Orleans; that said employment was accepted by Harris, who proceeded to drive the said truck in the direction of New Orleans, and that between Atlanta and West Point, Georgia, the Kansas truck was involved in a highway accident wherein Harris met his death. In the alternative, plaintiff alleged that should the case not be controlled by the law of Louisiana, then the law of Georgia would apply, and she prayed, also in the alternative, for judgment under the compensation laws of the latter state.

Christiana answered the compensation suit denying that the decedent wa's in his employ. The Sun Indemnity Company of New York, through its ’attorneys, filed a joint answer on behalf of itself and Kansas disclaiming liability upon the ground that Harris was not the employee of Kansas. The indemnity company admitted that it had issued a standard workmen’s compensation insurance policy to Kansas, and that the policy was in force and effect on the date involved.

On the date on which the case was originally fixed for trial, the trial attorney for the indemnity company concluded that plaintiff’s claim was not covered by the compensation policy issued to Fisher Kansas, and upon ascertaining that Kansas was not represented by counsel the attorney for the indemnity company moved for a continuance, in order that Kansas might secure counsel. A continuance was granted, and subsequently counsel for the Sun Indemnity Company of New York moved for permission to withdraw as attorneys for Fisher Kansas, which motion was granted by the court below.

The Harris suit was ultimately tried on its merits; at the trial Kansas was represented by counsel separately retained by him. The suit was dismissed as against Christiana, but plaintiff recovered judgment against Kansas and Sun Indemnity Company of New York, in solido, for compensation under the Louisiana statute.

Kansas and the Sun Indemnity Company of New York, both acting through their separate counsel, perfected and prosecuted appeals. The matter was tried before us (see Harris v. Sun Indem. Co., La.App., 28 So.2d 403) and we concluded that only a question of fact was involved, and held that at the time of the accident which caused the death of Harris he was in no sense an employee of Fisher Kansas. We reversed the judgment of the lower court and dismissed plaintiff’s suit.

In the instant case, Kansas seeks reimbursement for the amount paid the attorneys who represented him in the Harris suit, on the theory that, under the provisions of the workmen’s compensation policy, the indemnity company should have defended him in the suit. The indemnity company, in answer, pleads that it is not liable for the attorneys’ fee, for the reason that it owed no duty to Kansas to defend the Harris suit in his behalf, because (1) Kansas had failed and refused to cooperate and assist in the defense, and (2) that the action did not arise under the workmen’s compensation law of Louisiana, and, therefore, the claim was excluded from protection under the policy. The lower court awarded Kansas judgment against the indemnity company for $500, and the latter has appealed. The amount of the judgment is not disputed.

By the provisions of the policy contract, liability of the insurer is restricted to claims arising under Act No. 20 of 1914 as amended, and, according to item three of the “Declarations,” to such injuries as are sustained by reason of the business of the employer at 1413-15 Dryades Street, New Orleans, and elsewhere in the State of Louisiana.

The first ground of defense, i. e., the insured’s lack of cooperation and assistance in the defense of the Harris suit, seems to have been abandoned, as this point was not touched upon by counsel for defendant either orally or in brief.

It is contended by defendant that the allegations of the petition in the compensation case, on their face, when considered along with the policy provisions, excluded the claim from policy coverage, and that the insurer owed no obligation whatever to Kansas to defend him in the suit. Counsel point to Lonnie Harris’ employment in Georgia and his resulting death there as foreclosing any thought that the Louisiana statute could possibly have any application under those alleged facts. They argue that in order for a workman’s injuries or death to be compensable under the local statute, the workman must have been employed under a contract entered into in Louisiana. Counsel say that they have been unable to find any case which holds that the Lousiana workmen’s compensation act applies to any but Louisiana contracts of hiring.

Defendant cites a number of authorities, all, however, from other jurisdictions, which hold that if the compensation claim is not within the coverage of the policy, the insurer owes no duty to the insured to defend him. Our concern, however, is not whether as a general proposition an insurer owes the duty of making defense when there is-no policy coverage, but whether the Sun Indemnity Company of New York rightly refused to defend its insured against Edna Harris’ suit, merely because it entertained the belief and formulated the opinion that the Louisiana statute did not control the claim.

On the other hand the attorney for Kansas argues that the alleged contract of employment, though made in Georgia, contemplated that Lonnie Harris would perform labor in Louisiana in driving the truck from Gainseville to New Orleans, and that it must necessarily 'have been the intention of the parties that compensation claims emanating from the employment would be controlled by the Louisiana act.

A number of authorities are cited by both parties as supporting their respective positions, but our examination of them discloses that none are similar to the Harris case from a factual standpoint. McKane v. New Amsterdam Casualty Company, La.App., 199 So. 175, 182, cited by plaintiff, which was decided by this court, is interesting, as appears from the following language used therein: “We think, however, that, with relation to the applicability of the Workmen’s Compensation Law, the better rule is that the intention of the parties to the contract should be the determining factor. And, before resolving whether an employment contract is to be governed by the law of the place where it is made or by the law of the place where it is to be performed, the court should examine all of the facts and circumstances of the case with reference to the nature of the work to be done, the place of performance, the domicile of the parties, etc.' — -all with a view of discovering the true intent of the parties. If, after investigation, it appears that the parties have indicated, either expressly or tacitly, that their rights and obligations should be governed by the laws of the place of performance, then the court should not hesitate to apply that law to the case.”

As stated before, on the Harris appeal we reversed the judgment of the lower court and dismissed plaintiff’s demands, because we found that Lonnie Harris was not an employee of Kansas, but was merely a volunteer when driving the truck. Although the proposition whether Act No. 20 of 1914 covered the action was thoroughly argued, we declined to resolve that point because of our conclusion that the matter should be adjudged upon the other ground.

We cannot say, because we did not decide, whether in view of the allegations of the Harris petition the aot would have been controlling in the suit. The question of the applicability of Act No. 20 of 1914 was a serious and debatable legal one because of the circumstances surrounding the parties, such as, Edna and Lonnie Harris and Kansas all being domiciled in New Orleans; Harris being transiently in Georgia and allegedly employed to drive the truck both in Georgia and Louisiana.

Under the policy contract, the indemnity company bound itself not merely to indemnify the insured and hold him harmless from liability, but to defend Kansas in compensation suits brought by his employees, even though such suits be groundless, false, or fraudulent. The pertinent provision of the contract is stated thus: “To defend, in the name and on behalf of this Employer, 'any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.”

When the claim was presented against Kansas, the obligation of the indemnity company, by the terms of its policy, was to defend the suit. The petition alleged that the suit arose under the Louisiana statute, and if that claim was not valid it was the duty of the insurer to defend the insured and demonstrate that fact to the court. The insurer should not have avoided such duty by determining upon its own that the alleged ground of liability was without the policy coverage.

An insurer’s failure to defend a suit as contemplated by the policy makes it responsible to the insured for whatever actual expenses he was compelled to undergo in making his own defense. Shehee-Ford Wagon & Harness Co. v. Continental Casualty Co., La.App., 170 So. 249; Lang v. Jersey Gold Creameries, La.App., 172 So. 389; Sears v. Interurban Transportation Co., 14 La.App. 343, 125 So. 748; Bordelon v. Ludeau's Lumber Yard, La. App., 177 So. 436; Zagst & Co. v. Southern Surety Co., 148 La. 328, 86 So. 828.

The judgment appealed from is affirmed.

Affirmed.


author: McCALEB, Justice.

text:
    214 La. 283
    STATE ex rel. DOWLING v. CANAL BANK & TRUST CO. et al.
    No. 39133.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Clarence Dowling, Charles A. Danna and Dorothy Dowling, all of New Orleans, for relator.
    J. Blanc Monroe, John L. Toler, L. H. Yarrut, and James G. Schillin, all of New Orleans, for respondents.
    Clem H. Sehrt, of New Orleans, for in-tervenor, J. S, Brock.
   McCALEB, Justice.

An alternative writ of mandamus was issued herein, ordering the judge of Division “E” of the Civil District Court for the Parish of Orleans to grant suspensive and devolutive appeals petitioned for by relatrix on August Sth, 1948 or show cause to the contrary. Inasmuch as the judge has granted the appeals, the question presented on the rule is moot except for the claim of relatrix that the judge be condemned to pay the costs.

In the recent case of Tucker v. Edwards, 212 La. 457, 32 So.2d 845, where a similar contention was made, we said that we knew of no rule of law authorizing the taxing of costs against a trial judge in matters where remedial writs are granted to review his rulings. That decision governs this case.

Accordingly, the rule issued herein is discharged. The costs incurred in this court in connection with the securing of the writ are to be taxed against the party cast after final determination of the suit on its merits.


text:
    214 La. 285
    CURRIE v. CONTINENTAL AMERICAN BANK & TRUST CO.
    No. 38643.
    Supreme Court of Louisiana.
    Nov. 8, 1948.

      Chandler & Edwards, of Shreveport, for plaintiff-appellant.
    Cook, Clark & Egan, of Shreveport, for de f endaht-app elle e.
   McCALEB, Justice.

Plaintiff has appealed from a judgment dismissing his suit on an exception of no right or cause of action. He claims that he is entitled to be recognized as owner of an undivided one-third interest in the minerals in and under the fractional Section 19, Township 19 N., Range 16 W. Caddo Parish, Louisiana, which is registered in the name of the defendant bank.

The pertinent allegations of the petition are that the defendant bank acquired fee title to the real estate involved; that, more than five years after its acquisition, it sold the land to one Platt, reserving to itself in the deed one-third of the minerals; that, in 1941, plaintiff acquired the fee title to the property (subject to the reservation) from a subvendee of Platt and that, inasmuch as the law, Section 3 of Act No. 179 of 1902, as amended, prohibits a state bank from holding real estate (other than that acquired for the transaction of its business) for a period longer than five years, the title to one-third of the minerals reserved by the bank in the sale of the property to Platt has inured or escheated to plaintiff. Judgment is prayed for accordingly.

We experience no difficulty whatever in resolving that the petition states neither a right nor a cause of action. Primarily, plaintiff is devoid of right to question the title of the bank as it is well settled that the authority or power of a corporation to acquire or hold property may be examined only in a suit by the sovereign. In 19 C.J.S., Corporations, § 1112, page 686, it is declared:

“The general rule is that the state alone can question as ultar vires the acquiring and holding of real or personal property by a corporation, and that a conveyance to a corporation incompetent to take title is not void, but only voidable, at the suit of the sovereign alone, in the absence of a clear expression of legislative intention to the contrary. So, the capacity of the corporation to take and hold property cannot be disputed by a remote grantor * * *. Conversely, the title of the cor-, poration cannot be questioned by its grantee, its lessee, or those claiming undér them, nor by its contractual grantee, nor its assignee for creditors; * * * nor can it be questioned by a trespasser or an adverse claimant.”

The above stated doctrine has been expressly approved by this court in Southern Lumber Co. v. Holt, 129 La. 273, 274, 55 So. 986 and Nelson v. Texas & P. R. Co., 152 La. 117, 92 So. 754, 756.

Furthermore, plaintiff is without a cause of action for the reason that, even if the bank’s reservation of one-third of the minerals in its deed to Platt'be regarded as an absolute nullity, the mineral interest would not inure to plaintiff’s benefit by any method of sound reasoning. In such circumstances, it could not be said that the one-third mineral interest was transferred by the bank to Platt as Platt did not purchase it.

The judgment appealed from is affirmed.

       Act No. 179 of 1902, as amended, which is relied on by plaintiff, provides that banking corporations shall not have the power to hold any real estate other than that acquired for the transaction of their business for a longer period than five years. It does not contain a forfeiture clause and is practically identical with the provision contained in the acts of Congress relative to National banks, see 12 U.S.C.A. § 29, par. 4» The Supreme Court of the United States has repeatedly held that the provisions of the National Banking Act, prohibiting certain acts by banks or other officers, can be questioned only by the United States and not by private parties. See Thompson v. St. Nicholas Nat. Bank, 146 U.S. 240, 13 S.Ct. 66, 36 L.Ed. 936.

       The rule in Louisiana also accords a right of action to "a person directly interested in the corporation”.


author: O’NIELL, Chief Justice.

text:
    214 La. 289
    STATE ex rel. BROOKSHIRE v. BROOKSHIRE.
    No. 38612.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Severn T. Darden and Siegfried B. Christensen, both of New Orleans, for respondent-appellant.
    Louise L. Burton and R. H. Burton, both of New Orleans, for relator-appellee.
   O’NIELL, Chief Justice.

This is a contest between the parents for the care and custody of an illegitimate child, a boy 5% years of age. He was born on March 29, 1943. The trial judge decided that the child should be left with the mother. The father is appealing from the decision. He was married to another woman when the child was conceived and born; hence the child is an adufterous bastard.

The father and mother began living together in concubinage in or about 1941 or 1942, when she was only 19 year of age, and he was about 31, and was married to the other woman. On April 17, 1944, he obtained a divorce, and on May 22, 1944, he married the woman who is the plaintiff in this suit, the mother of his illegitimate child. Meanwhile the parents of the child lived together until January 9, 1947, when she left her husband and sued him for a divorce on the ground that they had been living separate and apart continuously for two years.

The child lived with his maternal grandparents On a farm near Ponchatoula, Louisiana, until March 1947, except for a period of two months, in the spring of 1944, when the child lived with his parents in New Orleans. On March 20, 1947, the father went to the home of the maternal grandparents of the child, near Ponchatoula, and without their knowledge or consent took possession of the child and brought him to the home of his paternal grandparents in New Orleans. Whereupon the mother brought this proceeding by habeas corpus and was awarded the care and custody of the child.

In her petition for the writ of habeas corpus the plaintiff alleged the facts which disclosed that the child was an adulterous bastard. And it is because of that disclosure that the defendant contends that the plaintiff is unworthy of having the care or custody of her child. The plaintiff’s answer to the contention is that she was obliged to make the necessary allegations of fact in order to bring her case within the provisions of articles 238 and 245 of the Civil Code, and within the doctrine of the decision in Acosta v. Robin, 7 Mart., N.S., 387. These articles of the Civil Code leave the inference that the care and custody of illegitimate children belong exclusively to the mother, as a matter of right.

Article 238 declares: “Illegitimate children, generally speaking, belong to no family, and have no relations; accordingly they are not submitted to the paternal authority, even when they have been legally acknowledged.”

Article 245 declares: “Alimony is due to bastards, though they be adulterous and incestuous, by the mother and her ascendants.”

The implication in these articles of the Civil Code, or rather in the corresponding articles, 254 and 262, in the Code of 1825, was recognized in the case of Acosta v. Robin, decided in 1829; but the decision in that case, awarding the custody of an acknowledged illegitimate child to the mother, in a contest between her and the father of the child, was founded as much upon the finding by the court that the decision was for the best interest of the child as upon articles 254 and 262 of*the Code of 1825.

In the present case there is no showing that it is not for the best interest of the child that he should be left in the care and custody of his mother, or of her parents, on the farm near Ponchatoula. There is no evidence of immoral conduct on the part of the child’s mother. On the contrary all of the testimony on that subject is favorable to her. The two principal complaints made by the defendant in that respect are, first, that the mother of the child signed a false affidavit to her petition for a divorce, when she swore that she had been living separate and apart from her husband continuously for two years, and, second, that she committed a great wrong to the child when she divulged, in her petition in the present suit, the facts which disclosed that the child is an adulterous bastard. Her answer to the first complaint is that it was on the suggestion and at the request of her husband that she made the affidavit, on her petition for a divorce, that she had been living separate and apart from her husband continuously for two years. The answer to the husband’s second complaint is that the plaintiff, or her attorney, deemed it necessary to allege in her petition in the present suit the facts which divulged that her child was an adulterous bastard, in order to avail herself of articles 238 and 245 of the Civil Code, and of the decision rendered in Acosta v. Robin, 7 Mart., N.S., 387. We find nothing in either of the complaints made by the defendant here that should disqualify the plaintiff in her demand for the care and custody of her child, without regard for articles 238 and 245 of the Civil Code.

The judgment is affirmed.


text:
    214 La. 293
    WALKER et al. v. FITZGERALD et al.
    No. 38134.
    Supreme Court of Louisiana.
    Nov. 8, 1948.

      James H. Williams, of Colfax, for plaintiffs-appellees.
    Stafford & Pitts, of Alexandria, for defendants-appellants.
   McCALEB, Justice.

This controversy arises out of a contract executed by plaintiffs in 1939, styled as a “mineral lease”, wherein they conveyed to one Kerlin all of the sand and gravel in and under a certain tract of land in Grant Parish for a consideration of $25, plus payment of 4^ per cubic yard for all gravel mined and removed from the property. The contract was subsequently assigned by Kerlin to the defendant, Fritz-gerald, who thereafter (between 1940 and 1944) removed a large quantity of sand and gravel from the land making payment of 4fS per cubic yard for all gravel withdrawn in accordance with the terms of the agreement. Although plaintiffs accepted these payments, they were dissatisfied with the arrangement (contending, apparently, that the amounts received by them were insufficient) and consulted an attorney for the purpose of having the contract can-celled. After certain negotiations and demands, which arc unimportant to our consideration of the case, suit was filed by plaintiffs in the Eighth Judicial District Court, wherein they sought, primarily, the annulment of the agreement on the ground that it contained a potestative condition and, alternatively, a money judgment for the sum of $1,250, $1,000 of which was for timber allegedly removed or damaged by the defendant in his operation of the sand and gravel pit.

Defendant resisted by denying the existence of the alleged potestative condition and asserted that, even if it be potesta-tive, plaintiffs were estopped from demanding an annulment of the contract as they had accepted the benefits of his operations. He further denied the charges respecting plaintiffs’ alternative demand for damages.

The case was tried on these issues but, after the hearing and while the matter was under submission, plaintiffs moved for and obtained a voluntary non-suit. Shortly thereafter, they filed the present suit in the same court in which they sought an annulment of the contract on the same ground (potestative condition) and alternatively alleged that defendant had removed 35,402 cubic yards of sand from the premises between March 1942 and September 1943; that, since March 1943, he had removed an additional number of cubic yards of sand; that the exact number of yards were unknown to them, being a matter within the peculiar knowledge of the defendant; that, therefore, they were compelled to estimate, on info»mation and belief, that at least 30,000 cubic yards of sand had been so removed and that, consequently, defendant was indebted to them in the sum of per cubic yard on 75,-402 (should be 65,402) cubic yards of sand,, or in the full sum of $3,016.00.

In due course, the defendant answered and asserted the same defense on the main demand which had been made to the previous suit. With respect to the alternative demand, defendant denied any liability for sand removed on the ground that the contract did not provide for payment of any sum for sand removed but for gravel only. He, however, declared that, during the entire period he 'had been in possession, he had removed 42,000 cubic yards-of sand.

Subsequently, the parties entered into a stipulation to submit the cause to the court for decision upon the pleadings filed in the case and the proof adduced in the prior action which had been dismissed as of non-suit. They also stipulated that the value of the property involved was more than $100 but that it did not exceed $2,000. As thus submitted, the judge of the district court entered a decree rejecting plaintiffs’ main demand for an annulment of the contract but gave them a judgment for the sand removed by defendant in the sum of $1,680, which represented 40 per cubic yard on the 42,000 cubic yards admittedly withdrawn from the premises.

Thereafter, defendant appealed to the Court of Appeal and plaintiffs answered the appeal asking that the judgment of the district court be reversed insofar as it denied an annulment of the contract. The Court of Appeal, after hearing the matter, decided that it was without appellate jurisdiction and transferred the case, on its own motion, to this court. 24 So.2d 263.

At the outset, we direct our attention to the question of jurisdiction of this appeal. Under Section 10 of Article VII of the Constitution, the appellate jurisdiction of this court in civil suits is confined to cases “ * * * where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed two thousand dollars exclusive of interest, * * * ’’,

In the instant case, plaintiffs’ main demand is for the annulment of a contract granting defendant the right to extract sand and gravel from a strip of land situated on a tract owned by them in Grant Parish. Therefore, since the demand is not for the recovery of money, it is the value of the right plaintiffs seek to enforce which determines appellate jurisdiction and not necessarily the value of the property involved in the suit, which is admittedly worth less than $2,000.

The Court of Appeal reasons in its opinion that, despite the fact that there is nothing contained in the pleadings or in the evidence which affirmatively shows that the value of the annulment prayed for by plaintiffs exceeds $2,000, this right is greatly in excess of that amount because, between 1940 and 1944, defendant had mined and sold 42,000 cubic yards of sand, approximately 68,000 yards of washed gravel and 33,000 yards of sand clay.

We cannot perceive that the fact that many thousand cubic yards of sand and gravel had been removed from the property during a four year period justifies the conclusion that the right presently sought to be enforced by plaintiffs exceeds $2,000. It would be more plausible, we think, to measure the value of plaintiffs’ right by using as a basis the value of the sand and gravel which they would recover in the event of success, for that method, while not conclusively establishing the value of plaintiffs’ right, would exhibit the value of the thing secured by the judgment — i.e., sand and gravel worth less than $2,000. Perhaps plaintiffs’ right to have this property restored to them exceeds that amount but there is nothing in either the pleadings or the record affirmatively showing that this is the case. It is well settled that, in the absence of such showing, this court is without jurisdiction. See Green v. George, 213 La. 739, 35 So.2d 595 and cases there cited.

Nor do we think that we have appellate jurisdiction because plaintiff requested, in the alternative demand, recovery of $3,016, or 40 per cubic yard on approximately 75,000 cubic yards of sand. This demand, by plaintiffs’ tacit concession, was reduced to $1,680, or per cubic yard on 42,000 cubic yards, prior to the time the case was submitted to the judge for his decision. It is the well-settled jurisprudence that appellate jurisdiction in a given case is to be tested by the amount in dispute at the time the judgment is rendered in the court of original jurisdiction. Hence, a payment made or a remit-titur entered “or an admission of a part of the debt sued for, before the case is submitted to the court of original jurisdiction for decision, has the same effect upon the question of appellate jurisdiction as if the amount paid or remitted, or the amount of the debt admitted, had never been sued for.” See State v. Cook, 197 La. 1027, 3 So.2d 114, 117 and the numerous cases therein cited.

Applying the foregoing law to the case at bar, it becomes clear that the matter in contest on the alternative demand at the time the case was submitted to the judge for decision was whether plaintiffs were entitled to judgment for per yard cm 42,000 cubic yards of sand ($1,680) and not whether they were entitled to judgment for $3,016, as originally claimed in their petition. The allegation contained in the petition that defendant had extracted 75,000 cubic yards of sand was confessedly speculative as this allegation was preceded by the averment that the number of yards of sand removed by the defendant was unknown to plaintiffs “ * * * such being within the peculiar knowledge of the defendant * * * Obviously, then, when the defendant admitted in his answer that he had removed 42,000 cubic yards of sand (for which he denied liability to plaintiffs for royalties under the contract) and plaintiffs stipulated to submit the matter on the pleadings, they accepted, tacitly at least, that amount as the basis for their recovery and must be held to have abandoned any idea of recovering a sum in excess thereof. Accordingly, the sum originally claimed was reduced to $1,680, or to an amount not within our appellate jurisdiction — for, as was said by the court in State v. Cook, supra:

“ * * * if any issue or contest which is essential to give the Supreme Court appellate jurisdiction over the case in which the issue or contest was presented is eliminated before the case is submitted to the court of original jurisdiction for decision, the Supreme' Court will not have appellate jurisdiction over the case.”

For the reasons given, the case is ordered transferred to the Court of Appeal, Second Circuit, provided that the record is filed in that court within thirty days from the date on which this decree shall become final; otherwise, the appeal shall be dismissed. The taxing of any and all costs incurred by appellant in lodging the appeal in this court in compliance with the judgment of the Court of Appeal and the costs incurred by appellant in having the case transferred to the Court of Appeal, as herein ordered, is to await final decision of the case on its merits, after which these costs are to be assessed against the party cast.

       There are certain other civil eases specially provided for in Section 10 of Article VII of the Constitution, wherein this court is given appellate jurisdiction, irrespective of the amount in dispute. The case at bar, however, does not fall within any of these exceptions and, therefore, we do not have appellate jurisdiction unless the amount in controversy exceeds $2,000.

       In such case, the Court of Appeal has appellate jurisdiction under Section 29 of Article VII of the Constitution, providing that its jurisdiction shall extend to all cases “ * * * of which the Supreme Court is not given jurisdiction, * * * »

       For other cases involving admissions which had the effect of reducing the amount in controversy to a sum not within the jurisdiction of this court, see Chickasaw Wood Products Co. v. Vail-Donaldson Co., 173 La. 59, 136 So. 87 and H. A. Bauman, Inc., v. Tilly, 188 La. 631, 177 So. 657.


author: FOURNET, Justice.

text:
    214 La. 303
    CARRERE et al. v. ORLEANS CLUB et al.
    No. 38383.
    Supreme Court of Louisiana.
    July 2, 1948.
    Rehearing Denied Nov. 8, 1948.

      Leander Perez and Ernest A. Carrere, Jr., both of New Orleans, for plaintiffs and appellees.
    Henry G. McCall, City Atty. and Henry B. Curtis, Asst. City Atty., both of New Orleans, for City of New Orleans, defendant and appellant.
    Jones, Flanders, Waechter & Walker, Bert Flanders, Jr., J. Mort Walker, Jr., Wm. B. Drcux and Elmer D. Flanders, all of New Orleans, for Orleans Club, defendant and appellant.
   FOURNET, Justice.

The City of New Orleans and the Orleans Club are appealing from a judgment enjoining the erection of a brick addition to the club’s existing building under a permit issued by the city’s engineer and also prohibiting the city from issuing any permit whatever to the club authorizing the erection of a building, addition to, or structural alteration of the club’s present facilities unless such permit is specifically authorized by the Commission Council in its discretion upon the application of not less than 70% of the property owners within 300 feet of the club premises.

The building and premises that are owned and operated by the Orleans Club are located in what is termed a “C” Apartment District in the Comprehensive Zone Law adopted by the City of New Orleans as Ordinance No. 11,302 C. C. S. on June 1, 1929, the pertinent part of which reads as follows:

“ * * * -jji the ‘C’ and ‘D’ Apartment Districts no building or premises shall be used and no1 building shall be hereafter erected or structurally altered, unless otherwise provided in this ordinance except for one or more of the following uses:
“1. Any use permitted in the ‘B’ Residence District.
“2. Multiple Dwellings.
“3. Apartment Hotels.
“4. Private Clubs and Lodges, excepting those the chief activity of which is a •service customarily carried on as a business, provided, however, that the Commission Council may in its discretion, permit private clubs and lodges, excepting those the chief activity of which is a service customarily carried on as a business, within the ‘C’ and ‘D’ apartment districts, upon the application of not less than seventy (70%) percent of the property owners within 300 feet of any and all portions of the premises to be so used.”

The city engineer, who is charged with the enforcement of this zoning law, pursuant to a ruling obtained from the office of the city attorney that he should issue permits for alterations and additions to private clubs under sub-section 4 of Section 5 of this ordinance without councilmanic action if the chief activity of the club is not one customarily carried on as a business, issued, on February 25, 1946, permit No. 24,888 authorizing the construction of a “lecture hall” as an addition to the present Orleans Club building, in accordance with the plans and specifications submitted with the club’s application. The plaintiffs, Ernest A. Carrere, Mrs. Elsie Jennie Wehrman, Mrs. Elizabeth Staplecamp, and Theodore A. Gugert, property owners residing within 300' of the club’s premises, learning of the issuance of this permit through the newspapers, instituted these proceedings on April 11, 1946, for the purpose of halting the construction of this addition and of preventing the future issuance of any such permits unless they were authorized by the Commission Council upon the application of not less than 70% of the property •owners. Pending a hearing on the application for a preliminary injunction (which was later granted and finally made peremptory), they secured a temporary restraining ■order to this effect.

The issues raised by the plaintiffs in their pleadings máy be fairly stated to be as follows:

(1) The chief activity of the Orleans Club is a service customarily carried on as a business in that the club’s rooms are rented for dances, weddings, receptions, cocktail parties, and other social gatherings, while its bedrooms are rented to nonmembers and its beauty parlor and. rental library are operated for profit. (2) In the alternative, that if the club does not fall into this category, then that sub-section 4 of Section 5 prohibits the use of the premises as a private club without a permit issued by the Commission Council upon the application of not less than 70% of the property owners, it being their contention that the present club was only allowed to continue • its operations because it was already established at the time the zoning ordinance went into effect, consequently, that as a non-conforming establishment in this district the club can only expand under the conditions set out in sub-section (b) of Section 10 of the ordinance. (3) In the further alternative, that the rental of the club facilities for these various social functions constitutes a nuisance in that the users of the facilities bring innumerable automobiles into the area causing traffic congestion and blocking entrances to the homes; are loud and noisy in the early morning hours while lingering about after parties; and bring chauffeurs who, while awaiting their employers, trespass upon the lawns of the plaintiffs and engage in unsavory activities.

The defendants, on the other hand, contend that the proviso in Section 5 relative to councilmanic action predicated upon a percentage of property owner approval does not apply to a private club whose chief activity is not a service customarily carried on as a business; in the alternative, that if it does, then that such provision is unconstitutional for the following reasons: (1) It unlawfully delegates legislative police power to private citizens; (2) denies the club of due process since it is deprived of the use of its property upon the whim or caprice of other property owners without recourse or appeal; (3) deprives the club of equal protection by vesting in the Commission Council the arbitrary power of giving or withholding a permit to a private club; and (4) deprives the club of its property for reasons that are not based on substantial and reasonable regard for public health, safety, morals, or general welfare.

In order that the issues raised in this case may be understood and properly disposed of, it is necessary that a brief statement be given of the origin and activities of the Orleans Club in relation to the events leading up to the institution of this suit, as they are reflected by the record.

In 1925, four years prior to the adoption of the Comprehensive Zoning Law, a group of women from various organizations who felt the need for a clubhouse wherein might be housed all of the various activities in which women are interested, banded together to form what is now known as the Orleans Club, a non-profit corporation operating under a charter and by-laws. The purpose of this club, as expressed in its charter, is to associate into closer bonds of unity all women who are interested in art, music, and literature, as well as in the social, civic, philanthropic, professional, and financial affairs of the community so that the dignity, honor, and character of all that pertains to the interest and activities of women might be promoted. To this end they purchased in an exclusive uptown section a large and imposing residence facing on St. Charles Avenue that had theretofore been maintained as a home from the time of its construction in 1868. They paid $62,500 for this building, the down payment being made with a part of the funds derived from the sale of stock in the new organization. They spent $10,000 renovating the building so that it might conform to their club needs and later the sums of $6,200 for a port-cochere and driveway, and $2,500 for interior decoration. This building is three stories high. The first floor consists of the parlor, drawing room, library, dining room, and kitchen facilities, in addition to the entrance hallway and stairway. The executive offices and committee room are on the second floor, as are also three bedrooms that are available to the friends of the members and to members for a stipulated rental and other rooms that may be used for bridge and as dressing rooms for wedding parties. On the third floor, in addition to other bedrooms, the club installed in 1927 a beauty parlor that is run for the convenience and exclusive use of the members by one operator.

Beginning with a charter membership of 300 and an associate membership of 300 in 1925, the club has continued to grow. A junior membership was added the following year. Today the membership is over 800. The club has also prospered financially. By 1935, despite the depression and large amounts expended on upkeep and improvement, the club was entirely free of debt.

An analysis'of the club’s operation for. the year ending March 31, 1946, as made up by certified public accountants shows the principal revenue of the club is derived from dues paid by members ($20,381.25) ‘ and from meals ($17,313.66, over $15,000 of this amount coming from members exclusively). The remaining revenue of the club, derived from the rental of club rooms, bedrooms, teas, beauty parlor, donations, and miscellaneous sources, amounted to approximately $13,000.

It appears that the club, with the idea of expanding, applied for permission to construct an assembly room on the premises in 1937 but that such application was later withdrawn because of the protest of a number of property owners and residents in the vicinity. In 1941 the club approached the city engineer with the idea of securing permission to enlarge its dining room facilities on the downtown or Robert street side by the construction of a one story glass enclosed extension overlooking the patio that would accommodate 300. The property owners again objected and the city engineer requested a ruling from the city attorney before issuing such permit. Upon being advised that as a club engaging in various social functions as its chief activity, the rental of its club rooms not constituting its chief activity, the permit for alterations and additions should be granted without councilmanic action provided all regulations relative to set backs and-rear yard area provisions were complied with, the city engineer issued the desired permit and the floor area of the dining room was enlarged by an extension of forty-three feet. The plaintiffs instituted these proceedings when they were apprised through the press that the city engineer had granted the club another permit on February 25, 1946, for the construction of an auditorium abutting the uptown side of the building.

The record unmistakably shows that the Orleans Club is being operated as a private club and that its chief activity is not a service customarily carried on as a business. The uncontroverted testimony of appellants’ witnesses is to the effect that the club is chiefly engaged in serving teas, luncheons, and dinners that are attended almost exclusively by members and their occasional guests, and in presenting book reviews, lectures, and addresses by prominent persons to the membership and their occasional guests. The club facilities may not be rented for weddings, dances, and other parties by the public at large. The person or organization desiring to rent these facilities must make formal application under the sponsorship of three members of the club who are held responsible not only from a financial standpoint but also for the actions of 'the applicants while they are on the premises. The rental library and the beauty parlor are operated for the exclusive use and convenience of the membership and the bedrooms in the building are only rented to members or their guests. Meals are not served to the public and not even to members unless, on the day previous, adequate arrangements have been made.

After a careful and thorough investigation of the affairs of the Orleans Club, its purpose and organization, its status as a non-profit private organization was recognized' by the Treasury Department of the United States and a club was exempt from income and capital stock taxation under Section 101(9) of the Internal Revenue Code, 26 U.S.C.A. § 101(9), which provides that clubs organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder, are exempt from taxation.

Having concluded that the chief activity of this club is not a service customarily carried on as a business, we pass to the alternative contention of the plaintiffs that in “C” and “D” Apartment Districts private clubs and lodges the chief activity of which is a service customarily carried on as a business are unqualifiedly prohibited by sub-section 4 of Section 5 of the Comprehensive Zone Law, but that if the chief activity of such club is not a service customarily carried on as a business, the Commission Council may, in its discretion, permit these within the district upon the application of not less than 70% of the property owners within 300' of the premises to be so used and that since such a permit was not obtained from the Commission Council for the operation of the Orleans Club the use to which this property is presently being put is non-conforming and the club’s right to expand is limited to such rights as it may have under sub-section (b) of Section 10 of the zoning law.

We are unable to eke out from the language used in this sub-section the interpretation sought to be placed thereon by the plaintiffs. After a careful study and analysis of sub-section 4, when it is read in connection with the object of the ordinance and the other provisions thereof, we are compelled to conclude that it was the intention of the Commission Council adopting this ordinance to permit the use of all property within “C” and “D” Apartment Districts for clubs and lodges when their chief activity is not a service customarily carried on as a business, and to even permit those whose chief activity is carried on as business in the discretion of the council when such discretion is predicated upon the application of 70% of the property owners in the immediate vicinity.

The only portion of this subrsection that is confusing is to be found in the proviso declaring “however, * -* * the Commission Council may in its discretion, permit private clubs and lodges, excepting those the chief activity of which is a service customarily carried on as a business, within the ‘C’ and ‘D’ apartment districts, upon the application of not less than seventy (70%) percent of the property owners within 300 feet of any and all portions of the premises to be so used.” Obviously, the lawmakers intended that the underscored word “excepting” should be “including,” otherwise this latter clause would be contradictory with the one immediately preceding it which .specifically permits the use of the property in this district for clubs when the chief activity thereof is not a business without any councilmanic action predicated upon property owner approval.

This interpretation is in accord with the well settled rule of law that a zoning ordinance, being in derogation of the rights of private ownership and curtailing and limiting the use of property, must be strictly construed in favor of the property owner and where exemptions appear in favor of the property owner they should be liberally construed in his favor. 440 East 102nd Street Corporation v. Murdock, 285 N.Y. 298, 34 N.E.2d 329; City of Little Rode v. Williams, 206 Ark. 861, 177 S.W.2d 924; Corcoran v. S. S. Kresge Co., 313 Mass. 299, 47 N.E.2d 257; People ex rel. Ortenberg v. Bales, 224 App.Div. 87, 229 N.Y.S. 550; Chamberlain v. Roberts, 81 Colo. 23, 253 P. 27; Monument Garage Corporation v. Levy, 266 N.Y. 339, 194 N.E. 848; Welch v. City of Niagara Falls, 210 App.Div. 170, 205 N.Y.S. 454; In re W. P. Rose Builders' Supply Co., 202 N. C. 496, 163 S.E. 462; and Town of Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155.

This is also 'in accord with the interpretation placed on this sub-section by the municipal authorities themselves and which, under our jurisprudence, is. given great weight. State ex rel. Szodomka v. Gruber, 201 La. 1068, 10 So.2d 899.

' Besides, we think it is consonant with logic and reason when we consider that under this same section property may be used for activities that are comparable in many respects to those of private clubs. For example, some of the uses to which property in this district may expressly and unqualifiedly be put are (1) public libraries and community centers owned and operated by governmental agencies; (2) fraternity and sorority houses; and (3) boarding and lodging houses.

Counsel have apparently abandoned the next alternative plea, that is, that the activities of the club as presently carried on constitute a nuisance, for this phase of the case is not covered in brief. In any event, the evidence fails to support this contention. The features that are termed objectionable in the pleadings constitute, at most, a private nuisance.

For the reasons assigned, the judgment of the lower court is annulled arid set aside and the plaintiffs’ suit is dismissed, at their cost.

O’NIELL, C. J., concurs.

HAMITER, J., does not take part.


author: JANVIER, Judge.

text:
    RUIZ v. KIEHM'S PHARMACY et al.
    No. 18983.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Rehearing Denied Jan. 24, 1949.

      A. Lester Sarpy, of New Orleans, for plaintiff and appellee.
    Samuel J. Tennant, Jr., and Frank C. Gipson, both of New Orleans, for defendants and appellants.
   JANVIER, Judge.

This is a suit by a real estate agent for a commission alleged to be due as the result of a sale by the defendant partnership of a “drugstore” formerly owned and operated by it and which had been listed for sale with the plaintiff real estate agent. Plaintiff also claims attorney’s fees as stipulated in the contract.

Defendants excepted to the petition on the ground that the contract with the agent was not signed in the name of the partnership but by one of the individual members in his own name. When this exception and another exception of vagueness were overruled, defendants answered, admitting that a contract had been entered into between one of the members of the partnership and plaintiff and also that the “drugstore” had been sold, but averring that the sale was effected after the expiration of the contract and that the purchaser was some one with whom the agent had not been negotiating during the term of the contract.

It was conceded that the price received was $13,132.86, and that the contract with plaintiff stipulated for an attorney’s fee of twenty-five per cent in the event it became necessary to employ counsel.

There was judgment in favor of plaintiff, against defendants, solidarily, for $1641.61, which included the attorney’s fees. Defendants have appealed.

Before considering the merits of the case, we shall investigate the effect of the fact that the contract on which the suit is based was signed only by W. J. Kiehm and not in the name of the partnership.

It is obvious that the partnership is a commercial one. Article 2825 of the Civil Code provides in paragraphs 1 and 2 as follows:

“Commercial partnerships are such as are formed:
“1. For the purchase of any personal property and the sale thereof, either in the same state or changed by manufacture.
“2. For buying or selling any personal property whatever, as factors or brokers.”
The second paragraph of Article 2872 provides that:
“Commercial partners are bound in solido for -the debts of the partnership.”

There is no controversy over these questions, but defendants say that since the partnership had nothing to do with the signing of the contract, the partnership is not liable and the other individual partners are not liable.

However, the drugstore was owned and operated by the partnership, the con-' tract for its sale was made on behalf of the partnership, and later when it was sold, it was sold by the partnership. Therefore, we conclude that when W. J. Kiehm signed the contract with plaintiff, he did so on behalf of the partnership.

In Hynes v. Kirkman, 4 La. 47, appears the following:

“Hence, it follows, that as the copartner of the defendant in a mercantile firm, who owned the boat, or as joint owner of a boat, engaged in carrying goods on freight, the defendant was bound in solido with J. Kirkman, for the acts of the latter in relation to the boat. The circumstance of the defendant having engaged the plaintiff as master of the boat, in his, the defendant’s, sole name, and not in that of the firm, while the boat was owned by and navigated for the firm, does not prevent the contract being that of the firm, binding both partners, in the same manner as if it had been clothed with the signature of the firm; and susceptible of being affected in its consequences, by the acts of either partner. Kimbal v. Blanc, 8 Mart.,N.S., 386, 390.”

In Penn v. Kearny, Blois & Co., 21 La. Ann. 21, the Supreme Court said:

“In Reynolds v. Swain, 13 La. 193, 197, it was held by this court that where one of the defendants, sued as commercial partners, hired the premises in his individual name, but that the store was occupied until abandonment by the partnership, the latter circumstance showed that the contract was made for the affairs of the partnership, and the firm was therefore bound by the act of the partner, lessee, though made in his individual name.”

See, also, Roth v. Moore, 19 La.Ann. 86.

That this principle is recognized in common law jurisdictions is shown by the following quotation from American Jurisprudence, Vol. 40, sec. 152, pp. 237, 238:

“Within the limits allowed by the articles of a general or commercial partnership, and during its continuance, each member has a right to bind his copartners to the performance of every contract he may make-in the name of the partnership. A partner cannot, however, bind his copart-ners beyond such limits. It is not necessary in order to bind a partnership that the contract be signed by all of the partners; a contract signed by one partner having authority, with intent to bind the firm, if so accepted, is binding on the firm.
“To render the partnership liable in case of an ordinary written contract, it is not essential that the name of the firm or partnership be mentioned in the writing. The fact that a contract signed by one partner was a partnership matter may be established by the testimony of the signers. Thus, it may be shown that an obligation under seal executed by all the members of a firm, in and for its business, and for its benefit, binds the firm, although the firm name is not mentioned, and although it appears on its face to be simply the obligation of the partners contracted in their individual names.”

The principle is also stated in Corpus Juris, Vol. 47, sec. 304, p. 841, as follows:

“A contract or transaction connected with the firm business and within the apparent scope of such business, in the name of an individual partner, is binding on the firm and all the partners where such individual name has been adopted as the firm name, or where the partners have consented to, or acquiesced in, the use of the individual partner’s name in firm transactions. Even where the firm name is different from that of a member, if the contract is intended to be a partnership contract, a partner may bind the firm and other partners by executing the contract in his individual name, * * * ”

The drugstore or pharmacy in question was owned by the partnership and was known as Kiehm’s Pharmacy. The partnership was composed of Walter J. Kiehm, Norman L. Kiehm and Mrs. A'nnie Norman, and it was operated by Walter J. Kiehm. The partnership did not own the building or the land on which it was located.

The contract on which the suit is based was signed on March 28th, 1947, and under it the plaintiff, John E. Ruiz, was employed “to find a buyer for the property”. It was stipulated that the price would be $25,000.00 cash, or “for any other price, or term hereafter agreed upon * * It was also stipulated that if sold the vendor would pay “a commission at the regular rate of 10% on the gross amount” of the sale and that in the event of the necessity of employment of counsel to enforce the contract the vendor would pay twenty-five per cent additional as attorney’s fees.

It was provided that the contract should remain effective for thirty days and that during that time it would be exclusive, and it was further stipulated that the commission would be earned by the real estate agent should any contract of sale be made by the owners “within forty-five days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract.” It is admitted that the original thirty-day term of the contract with plaintiff had expired on May 23rd, 1947, when the contract for the sale of the property was made by defendants. The sale was actually consummated by the passage of a notarial act on June 4th, 1947, so that it appears that when the sale on which this suit is based was completed the thirty day exclusive period had expired, but the second term of forty-five days had not expired.

As we view the matter, the only question then is whether or not the record shows that the purchaser was someone to whom the property had been “quoted” by the plaintiff or his employee during the exclusive thirty-day term of the contract.

The purchaser was a partnership known as Community Drugstore, the partnership being composed of William J. Montgomery and Robert L. Morris. Morris is a wealthy man who had nothing to do with the actual operation of drugstores, but is shown to have produced most of the funds with which the purchase was made. It appears, too, that he was interested because he desired to secure a place in the building in which his son-in-law, Dr. Johnson, a physician, might conduct his medical practice.

Montgomery formerly operated ’another drugstore in the same general neighborhood, and the store .in question was purchased so that Montgomery, whose lease on his store was about to expire, might operate the newly purchased one.

The contract -for the sale of the property, which was entered into on May 23rd, 1947,. was made between the Kiehm partnership, and Dr. P. J. Johnson, the son-in-law of Morris, and Johnson transferred any rights, he might .have under that agreement to Montgomery who then, on June 4th, bought the property directly from the Kiehm partnership.

The -record shows 'that neither the plaintiff nor hi-s employee had anything whatever to do with making the contract between the Kiehm partnership • and Dr.. Johnson. However, it is contended that, since the sale to Johnson was not -consummated and the sale which was consummated was made directly to Montgomery- and Morris, the commission is due, since,, according t-o the contention o-f plaintiff, -his -employee, Profumo, had at least “quoted” the property to Montgomery during the thirty day exclusive term of the contract. Ruiz does not claim that he himself negotiated with Montgomery, saying only that his employee, Profumo, who had secured the listing contract, was given -authority to negotiate with all prospects. Ruiz, however, did make the following statement concerning negotiations with Montgomery:

“I know very definitely that Mr. Pro-f-um-o. had contacted Mr. William L. Montgomery in connection with the purchase of thi-s property, this pharmacy, o-n several occasions a-nd there was a bartering as to price. Mr. Montgomery was very desirous of owning or purchasing this property, this pharmacy.”

T-he f-orce of this .statement i-s somewhat lessened by the subsequent statement of Ruiz that he was not present when Pro-fumo “contacted” Montgomery. However, Ruiz further said that on one occasion he did actually see Profumo in Montgomery’s drugstore talking to him, and still later he says that he saw him in conversation with Montgomery on several occasions. Again he said:

“Mr. Montgomery called my office one day in connection with this matter, and I referred him to Mr. Profumo. In fact, he called and endeavored to engage me in conversation pertaining to the sale price and I told him I wasn’t familiar with the details and it was customary to have the salesman or my representative that listed the property for sale to- handle all details in connection with the sale, and I told him he could call Mr. Profumo or I would have Mr. Profumo call him.”

And he s-ays that he gave Mr. Profumo this message.

Profumo says that during the thirty day exclusive .term of the contract, he was in almost continuous negotiation with Montgomery, that he quoted him a price of $25,000.00 and on objection that this was too high, he secured a lower one, and that finally he was able to quote a price of “$7500.00 stock and inventory,” and that he submitted this to Montgomery. He added that the stock and inventory amounted to about $6,000.00 so that the total price quoted to Montgomery would have been about $13,500.00. The sale, when finally made, was for $13,132.86.

Montgomery vehemently denies that Profumo at any time quoted the property to him. He says that he was not interested in buying the drugstore, but that since he owned a drugstore himself he was interested i-n¡ knowing the value of other similar stores and that when he asked Profumo what was being asked for the Kiehm Pharmacy, he did so merely to find out what his own might be worth.

Thus it appears from the testimony of Montgomery himself that during the exclusive t'hir.tyAlay term of the contract he did discuss with Profumo the purchase price which was being asked for the Kiehm drugstore. It is clear also that at that time •he, was giving thought to building or buying •another store 'and, as a matter of fact, with Morris 'later bought this very store.

There are other facts about the various ■conversations between Profumo and Montgomery which lead us to believe that .the purchase of the Kiehm Pharmacy was discussed several times between them. Montgomery admits that Profumo was in his store frequently, but he insists that he came in only as a customer and yet he admits that on the first occasion on which Profumo entered his store, he, Profumo, handed him his card. W'e presume that this moans his business card, and we cannot understand why a prospective purchaser who enters a drugstore to make a purchase should hand his business card to the proprietor of the drugstore. Furthermore, he admits that on one occasion he and Profumo and a third person sat and talked over drugstore business for ten or fifteen minutes, but he says that this conversation was limited to prescriptions and matters of that kind.

Under all these circumstances it is asking too much to expect us to believe that his conversations with Profumo were limited to a request for the .price that was being asked for the other store so that -he might see what stares similar to his were worth.

There is considerable evidence- concerning the question of whether or not the names of prospective purchasers or of persons who had been contacted were given by Ruiz to Kiehm at the termination of the thirty-day exculsive period, and it seems to be conceded that the name of Montgomery was not given to Kiehm, but this is explained by the statement that it is not customary for real estate agents to disclose the names of persons with whom they are in contact.

It is interesting ¡to note that before selling the property to Montgomery and Morris, Montgomery was required to sign an affidavit to the effect that it had not been quoted to him by Ruiz or his agent, and it is contended that this shows that Montgomery had not been approached and, furthermore, shows good faith on the part of the vendors. We are somewhat doubtful concerning the effect of this affidavit and we think it just a little suspicious that no affidavit was required from Morris or Johnson --that the property had not been quoted to them, and that it was only Montgomery who was asked to make such an affidavit, he, as a matter of fact, being the only one who, according to the evidence, had been approached 'by Profumo, the agent of plaintiff. It appears to us that this affidavit evidences a desire to protest a little too much.

We conclude that during the thirty-day exclusive term of the contract, there is no question whatever that Profumo quoted the Kiehm Pharmacy to Montgomery and, in fact, we conclude that he was in active negotiation with him during that period.

Even if it was merely quoted to him by Profumo, we think that under the terms of the contract there would be liability in plaintiff as a result of the ultimate sale to Montgomery. Counsel for defendants contend that there must be more than an actual quoting of the property if there is to be liability; that there must be active negotiation and they cite several cases in each of which it was held that the real estate agent was not entitled to ihis commission, since his services did not actually procure the purchaser.

But in each of those cases the contract was not an exclusive one. It is unnecessary that we discuss them for the reason already stated that the contract in each of them was not exclusive, and for the further reason that the effect of an exclusive contract during the original term of that contract is of no importance here. The important question here is the effect of that provision of the contract which was effective after the termination of the exclusive period. All counsel realized this and counsel for defendants point with confidence to the decision of our Supreme Court in Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621. There the contract with 'the agent contained the following stipulation:

* * * If we should sell said property, or any part thereof, after the expiration of this agreement, to a buyer with whom you had been negotiating prior to the expiration of -this agreement, we will see that you are paid a commission of five per cent, of the sale price.’ ”

After the expiration of the exclusive term of the contract, th'e property was sold to a buyer with whom the agent claimed that he had been negotiating. The Supreme Court held that the agent was not entitled to the commission. But we note at once two important distinctions between tha-t case and this. In the first place, in that case in order that the agent be pro^ tected it was necessary that the ultimate buyer should be some one with whom he had been “negotiating”, which, obviously means more than merely quoting a price. And -in the second place, in that contract there was no limit of time set upon the second phase of contract. The Court said that if the contract should be interpreted as the agent would interpret it, it would “forever” debar the owner from selling property to anyone to whom th'e agent had so much as offered it during the original term of .the contract, without paying the agent a commission.

Here there is a definite reasonable time limit set upon the second phase of the contract, and here, too, it was not required that there be, during the first phase, anything more than a mere quoting of the property. To quote property surely means nothing more than to offer it and to state the price asked.' To negotiate, according to the Supreme Court in Bullis & Thomas v. Calvert, supra, means to succeed

“in so far interesting some person in the property, that a-t the expiration of the contract he might be considered a likely buyer”.

We repeat that the record convinces us not only that Profumo had quoted the property to Montgomery but that he had so far interested him that he might be considered a likely buyer.

Under these circumstances, the owners could not sell it to Montgomery or to the partnership in which he was aotively interested without rendering themselves liable under the terms of the contract with plaintiff.

We are not prepared to say what might 'have been the effect had the sale been made in good faith to Dr. Johnson and had he •then also in good faith transferred or re-sold the drugstore to Montgomery and Morris. Suffice it to say that that was not done and th'e sale was made direct from the partnership to another partnership of which Montgomery was a member.

The amount of .the -sale .is not in dispute, nor is the amount of the attorney’s fees.

We regret that we again find it necessary to comment upon the fact that some members of the Bar seem to 'believe that it is -necessary or advisable to direct our attention to certain statements in transcripts by multilating or defacing the records by underlining certain statements or by drawing pictures of hands pointing to other statements. We consider this practice reprehensible, and we hope that it will be discontinued. We repeat what we said in Mundy v. Ornsby, 14 La.App. 4, 129 So. 177, 178:

“We cannot refrain from commenting on the mutilated condition of the record in this matter resulting from the attempt of one of the attorneys to forcibly call to our attention certain statements in the record. In the judgment of the writer, the underlining of statements specially attractive to one counsel or the other and the making of marks on the margin is 'highly reprehensible and should be discontinued.”

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.


author: REGAN, Judge.

text:
    DEUTSCH v. FABACHER et al.
    No. 19029.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Rehearing Granted Jan. 10, 1949.
    Samuel J. Tennant, Jr., of New Orleans, for appellants.
    Deutsch, Kerrigan & Stiles, of New Orleans, for appellee.
   REGAN, Judge.

The plaintiff, Eberhard P. Deutsch, brought this suit against the defendants, Edward B. Fabacher, an auctioneer, and his surety, Joseph R. Lawton, claiming the sum of $297.50, as the value of certain articles alleged to have been delivered to, and received by the auctioneer for sale at auction, and for which plaintiff has never received an accounting.

Defendants filed an answer denying that they were indebted to plaintiff in any sum whatsoever; that the plaintiff had consigned his merchandise to the Southern Auction Galleries, Inc.; that defendant Fabacher merely acted as the auctioneer for the Southern Auction Galleries, Inc.; that most of the merchandise was sold at auction and that the Southern Auction Galleries, Inc., had unsuccessfully attempted to effect a settlement with the plaintiff for the merchandise sold.

There was judgment below in plaintiff’s favor as prayed for. From this judgment defendants have appealed.

The record shows that on October 13th, 1947, plaintiff’s wife telephoned defendant Fabacher at his place of business, 1607 Prytania Street, and told him that she had some articles that she wished to dispose of, and that she wished to see him personally. On October 14th, 1947, plaintiff’s wife called at 1607 Prytania Street, met Mr. Fabacher, who in turn introduced her to a Mr. Robert O. Barnes, as his (Fabacher’s) assistant. There is a dispute between plaintiff and Fabacher as to whether the words “my assistant” were used in conjunction with the introduction. On the occasion of this visit, arrangements were made between plaintiff’s wife and Barnes, for him to remove the articles that plaintiff’s wife desired to sell from the attic of her home in '# 9 Richmond Place. It also appears that on this same day, plaintiff’s wife returned to Fabacher’s place of business and left there to be sold a “silver plated loving cup cocktail shaker”, for which she was given a receipt.

On October 17th, 1947, Barnes went to plaintiff’s home and received from plaintiff’s wife the remaining portion of the merchandise which she wanted to sell. During the trial of the case the plaintiff offered in evidence a list prepared by his wife showing the articles and the respective values thereof which she had delivered to

Barnes. This list is as follows:

“1 golf bag and set of clubs $ 5.00
1coffee cup and dripper comb. 1.50
1 flower light 1.50
1 pair book-ends (bronze) 2.50
1 safe box 1.00
1 pipe holder and pipes (Dunhill) 3.00
1 bed tray 1.50
1 small rug 2.50
5 pair boys and mens shoes 10.00
3 zipper satchels 3.00
1 Elizabeth Arden Beauty Box 20.00
1 punch bowl 10.00
3 cut glass pieces 7.00
1 silver plated cocktail shaker 25.00
1 purple crystal fruit stand 20.00
2 cut glass bowls 10.00
3 bridge tables 1.50
1 set Voltaire works 125.00
1 set Boy Allies 7.50
6 sets of other books 20.00
2 cut glass lamp bases 20.00”

It appears that plaintiff’s wife requested a receipt at this time from Barnes and he told her that as soon as the merchandise was delivered to 1607 Prytania Street, defendant’s place of business, a receipt would be issued. The record indicates that no receipt, other than the one referred to here-inabove, was ever issued, despite frequent requests for such a receipt on the part of plaintiff’s wife. At the time one of these requests for a receipt was made by plaintiff’s wife, she was advised that some of the articles had been sold, and then she attempted to secure an accounting and was equally unsuccessful. Amicable demand was made by plaintiff for the value of the merchandise delivered to Fabacher, and that demand being ignored the present proceedings were instituted.

Defendants contend that plaintiff consigned his merchandise to Southern Auction Galleries, Inc., and that Fabacher merely acted as an auctioneer for that company, and that most of the articles had been sold at auction and that Southern Auction Galleries, Inc., had attempted to make settlement with plaintiff for the articles sold, but without avail.

On the other hand, plaintiff contends that he, through his wife, dealt only with Fabacher as auctioneer and that none of the articles were sold for the small amounts which Fabacher claims they brought.

Considering first the contention of the defendants that plaintiff consigned his merchandise to Southern Auction Galleries, Inc., and that Fabacher merely acted as an auctioneer for that company, a summary of the evidence indicates that plaintiff, through his wife, intended to and did actually deal with Fabacher as an auctioneer and not with the Southern Auction Gal- leñes, Inc., and that, therefore, plaintiff consigned his merchandise to Fabacher who, in turn, may have placed it in the possession of Southern Auction Galleries, Inc., as his agent. Fabacher testified ’by deposition that he is an auctioneer and President of Southern Auction Galleries, Inc., 80% of whose stock he owns. Mrs. Deutsch testified that she had spoken to Fabacher by telephone and that on calling at his place of business, he had introduced himself and Mr. Barnes to her; that when Fabacher testified by deposition in counsel for defendants’ office and she hea'rd him swear that he was Edward B. Fabacher, an auctioneer, she recognized him as the same man she had seen on October 14th, 1947, at 1607 Prytania Street.

Dart’s Louisiana General Statutes, Section 470, Rev.St. § 139, provides:

“Any citizen of the State may -become an auctioneer for the parish in which he is a qualified voter, and be authorized to sell any real or personal property at public auction, upon giving bond and security, according to law, and taking the -oath prescribed by law.”

Section 144 of the Revised Statutes, as amended by Act No. 134 of 1914 provides that “no other person than a duly qualified, bonded and licensed auctioneer * * * shall exercise the trade or -business of an auctioneer by selling or offering for sale at auction any property, real or personal, within the state, under a penalty of' a fine of not less than twenty-five dollars nor more than five hundred dollars, or imprisonment in the parish jail for not less than five days nor more than sixty days, or both said fine and imprisonment for each offense.”

It is, of course, always presumed that transactions are executed in a legal rather than in an illegal manner. . Woodward v. Johnson, 178 La. 501, 152 So. 65. Therefore, the presumption here is that Fabacher, himself, dealt with plaintiff rather than the corporation, which could not legally have done so, and the facts bear out this presumption. It will be noted particularly from the provisions of Dart’s Louisiana General Statutes, Sec. 470, supra, that only a citizen of the State, who is a qualified voter and takes the prescribed oath, can -become an auctioneer. Obviously a corporation cannot meet these qualifications and, therefore, cannot legally, under any circumstances, act as an auctioneer.

In Kuhn v. Abat, 2 Mart., N.S., 168, which involved an action against an auctioneer and his surety for the value of merchandise placed with the firm to be sold at auction was defended on the ground that “the business seems to have been done by” the firm. In this case the court held:

“None but persons licensed for that purpose, can lawfully sell at auction; therefore, if they were properly sold, it must be considered as the act of Dutillet, who alone had authority to make the sale; and the obligation which he and his sureties contracted, in consequence of the privilege granted to him by the government, ought not to be impaired by the circumstances of his having conducted the affairs of his office with the aid of a partner in the profits, any more than they would be, if he had acted by the assistance of a hired clerk. His situation, in relation to his partner, did not concern the public who applied to him as an auctioneer.”

In a certification, dated April 29th, 1948, the State Auditor, Mr. L. B. Baynard, stated that “no license has been issued to the Southern Auction Galleries, Inc., and that the said Southern Auction Galleries, Inc., is not authorized to engage in business a-s an auctioneer in the State of Louisiana.”

We must, therefore, conclude that plaintiff dealt with the auctioneer Fabacher and not with the Southern Auction Galleries, Inc.

We now pass on to the next point of evaluating the merchandise sued for -by the plaintiff. It will be recalled that plaintiff sued for $297.50, the alleged value of the merchandise delivered by his wife to Fab-acher to be sold at auction. There was no written agreement between plaintiff and Fabacher as to what minimum prices these articles should be .sold for at auction, and, in fact, plaintiff alleges that his wife never even received a receipt for them with the exception of the one given her for the silver plated loving cup cocktail shaker.

Defendants, on the other hand, contend that a receipt was issued to Mrs. Deutsch for every article delivered to them. The record shows that an auction was conducted by the defendant Fabacher, with not less than thirty people in attendance, and that most of plaintiffs articles were sold at this time. The articles are described and the prices obtained therefor, are listed as follows

“Golf Bag and Clubs (On Hand)
Glass Dish 2.50
Coffee Brewer .75
Punch Bowl 8.00
Flower Light .50
Pipes and Safe Box 2.00
Book Ends .75
Pipe Holder 6 Pr. Shoes & Shoe Trees J 7.00
Leather Bag 3.50
Lot Books "I Lot French Books V Box & Contents J 1.00
Bed Table Tray Small Rug .50
Plated Cocktail Shaker 7.00
Make Up Kit 1.00
Electric Reducing Roller 2.50”

The plaintiff contends that the articles sold at auction were not sold for the small amounts which Fabacher claims they brought, however, plaintiff has offered no evidence to prove or substantiate this contention. We are, therefore, of the opinion, that plaintiff should recover only the amount for which Fabacher sold the merchandise, which amounted to the sum of $37.00, less a commission of $5.50, less x/%% hospital fee of $.19, less drayage of $3.00 or a net amount of $28.26. Plaintiffs right to sue for the return or the value of the unsold articles retained in the possession of the defendant is reserved.

For the reasons assigned the judgment appealed from is amended by reducing the amount thereof from $297.50 to the sum of $28.26 and plaintiffs right to sue for the return of the unsold articles or the value thereof is reserved to him. Costs to be borne by defendants.

Amended and affirmed.