author: TALIAFERRO, Judge. PER CURIAM.

text:
    INTERNATIONAL PAPER CO. v. RIVERS.
    No. 7172.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1948.
    Rehearing Denied May 31, 1948.
    J. S. Pickett, of Many, for appellant.
    Watson & Williams, of Natchitoches, and Madison, Madison, Files & Shell, of Bas-trop for appellee.
   TALIAFERRO, Judge.

Plaintiff and defendant signed a written contract on May 6, 1946, wherein the former gave and granted to the latter the right to cut and remove pine timber suitable for poles, of fixed dimensions and at fixed prices, from certain lands owned by it in the Parish of Sabine. Under the terms of the contract the trees to be cut and removed, prior thereto, were to be designated and marked by plaintiff's representative. The contract, in detail, provides the method of operation thereunder, including the checking and measuring of the poles in order to determine the price of each. It was also provided that invoices should be made by plaintiff after each batch of poles was inspected, etc., a copy of which was to be, and, in fact, was delivered to defendant, and upon which he was to make payments. Defendant completed the cutting and removing of all poles designated by plaintiff, in keeping with the contract, in the latter part of June, 1946. At that time he was due to plaintiff on account, reflected from four different invoices, $2,286.53, against which there was a credit of $850 paid by some one who had bought poles from him. This left a balance due to plaintiff of $1,436.53.

On July 2, 1946, defendant gave to plaintiff, in payment of poles described in invoices Nos. 408 and 421, a check for the sum of $1,080.26. This check, however, was dishonored by the bank on which drawn, on July 22nd, for insufficiency of funds to defendant’s credit.

About the time defendant had completed work under said contract, he and plaintiff entered into negotiations looking to the formation of another contract of the same tenor-and terms that would include other lands of plaintiff in Sabine Parish. They reached common ground, it was thought, on the subject, and in keeping with their agreement, a written instrument, embodying the terms and conditions agreed upon, was drafted by the plaintiff and was handed or forwarded to defendant for his signature. He signed it on July 16th, and returned it to plaintiff with a letter in which he objected to the scale of prices set up therein and, concluding the letter, he said: “I am signing the contract with the understanding that page two thereof will carry the new unit prices.”

However, in anticipation of the completion of the proposed contract, plaintiff’s representative went upon the land described therein, designated some trees for cutting thereunder and defendant actually cut thereon and removed forty-six of them. About this time knowledge that the check had been dishonored reached plaintiff’s office in Winnfield, Louisiana, through its office in Mobile, Alabama, to whom the check had been sent for collection, and plaintiff’s representative promptly told defendant to cut no more poles from the land described in the proposed contract, and in addition, in effect, he was informed that the proposed contract was at end. Following this defendant was asked to pay the check above mentioned. He declined and stated he would not do so until and unless plaintiff signed the proposed contract with the change of prices outlined in the mentioned letter, and allowed him to proceed thereunder. Of course, this was not done.

This suit to recover the balance due for trees cut under the executed contract and for the price of the forty-six trees cut thereafter, above mentioned, amounting in all to $1,623.12, was filed on August 16, 1946. In conjunction with the suit a writ of sequestration was sued out under which several piles of poles were seized by the sheriff. Defendant denied liability in any amount to the plaintiff, reconvened and sued for a large amount of damages allegedly sustained by him because of the issuance and levy of the writ, and plaintiff’s refusal to sign and go forward with the execution of the mentioned proposed contract.

There was judgment for plaintiff as by it prayed. No mention therein whatever is made of the writ of sequestration. It is not referred to in brief of either side. Presumably, it has passed from the case. Defendant appealed devolutively.

There existed at least two valid reasons in law for plaintiff’s refusal to go forward with the proposed contract with defendant, to wit:

1. Defendant’s acceptance and signing of the contract were made expressly on condition that the price schedule therein be revised upward. For this reason, unless and until plaintiff concurred in defendant’s position in this respect, the contract, even as to defendant', would not be binding. R. C.C. Articles Nos. 1805 and 1806.

2. Having failed to pay a large amount of the stumpage price for poles cut and removed under the first contract, plaintiff had the unquestioned right to withhold its signature from the second contract until defendant’s obligation under the executed one had been fully discharged. This is the primary reason assigned by plaintiff for not proceeding with the proposed contract.

It appears that after stopping defendant from cutting under the proposed second contract, plaintiff’s representative at Winn-field refused to further discuss with him the proposed contract until he had paid in full the balance due on the stumpage price under the executed contract. Defendant was advised of this position by letter. This was certainly a sound business position to take and was clearly justified under the existing facts. Defendant declined to meet this reasonable demand. It would be unthinkable to require or expect a person to continue business relations with another when that other had so signally violated his obligations under a pre-existing contract of the same tenor and character as that sought to be enforced. To require such action on plaintiff’s part would be tantamount to exposing it to the chances of sustaining additional losses. There is on the sheriff’s return on the writ a notation that warrants the inference that defendant had sold and delivered to another party the poles prior to levy of the seizure thereon; hence, the impotency of seizure. By such sale, plaintiff lost its lien and privilege on the poles.

In brief, defendant’s counsel says: “It is significant that at no time did the defendant refuse to pay the check which was returned some two or three weeks after it was issued. No effort was made by plaintiff to send the check through for collection a second time. On the other hand the defendant at all times held himself out as ready to carry out the contract in every particular. He said that if permitted to proceed with his cutting operations he was ready and willing to pay the check.”

The record does not support this statement. At no time after the check was dishonored was there to defendant’s credit in the bank on which it was drawn, a sufficient amount to pay it. This fact is clearly shown from the bank’s ledger sheet introduced in evidence by defendant • himself. The best evidence of the refusal of the drawer of a check to pay it, lies in the fact that his bank account continuously is inadequate to pay it, and his refusal to otherwise honor same after notice of dishonor. Defendant did this. He also, before this suit was tried, closed his account in the bank on which the check was drawn.

It is true, as argued, that defendant, all along, tried to use the dishonored check and his liability to plaintiff as a pry to induce it to sign the proposed contract. This position was as unreasonable as it was unfair.

A check is an unconditional order on the bank to pay to the payee, or his order, the amount written therein. It is an honor obligation, and should always be treated as such. Conditions, we know, do occasionally arise between the time of issuing a check and the time of its presentment for payment, that warrant the drawer in having it dishonored by the bank, but, in this case, no such conditions intervened. To the contrary, defendant actually enriched himself from the issuance of the check. Plaintiff accepted it, of course, as good for its face amount, and did not hurry to present it. This delay, coupled with plaintiff’s reliance upon the check, enabled defendant to dispose of the poles to a third person, collect the price and evade payment of the stumpage price due plaintiff.

The judgment appealed from is obviously correct, and, for the reasons herein given, it is affirmed with costs.

On Application for Rehearing

PER CURIAM.

For the first time, according to the pleadings, defendant points to a clerical error on the part of the trial judge, which, because our attention was not called to it heretofore, was continued here. Plaintiff sued for $1,623.12 and judgment therefor was rendered in his favor below, and affirmed in our original opinion and decree. It appears from documentary evidence in the record that according to an audit of the account between the parties, made in the month of September, some thirty days after the suit was filed, that the balance due by the defendant to plaintiff was $2,406.63, against which there was an admitted credit of $850, leaving the balance due on account $1,556.63 instead of $1,623.12, a difference of $66.49. We are urged by defendant in brief to allow this credit. It may be done without granting a rehearing as it is purely clerical. Code Prac. art. '547.

For the reasons above stated, the principal amount of the judgment appealed from and affirmed by this court, is reduced to $1,556.63. The application for rehearing is denied.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    213 La. 785
    JEANERETTE LUMBER & SHINGLE CO., LTD. v. KEMPER.
    No. 38521.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Chas. F. Bailey, of Lafayette, and J. Blanc Monroe, Malcolm L. Monroe and Jack A. Bornemann, of New Orleans (De-■baillon, Bailey & Mouton, of Lafayette, and Monroe & Lemann, of New Orleans, of counsel), for plaintiff-appellant.
    Rene H. Himel, of Franklin, for defendant-appellee.
   PONDER, Justice.

Thi-s is an action in jactitation wherein, the plaintiff claims the defendant has slandered its title to the Nj^ of the NW% of' Section 6, T. IS S., R. 12 E., in the Parish-of St. Martin. After the trial court had. disposed of the preliminary pleadings, the-case was tried on its merits. The lower-court dismissed the plaintiff’s suit on the-ground that the plaintiff did riot have possession of the property. The plaintiff has. appealed.

In order for the plaintiff to maintain an action in jactitation it must have-actual possession of the property. Allison v. Maroun, 193 La. 286, 190 So. 4081 The lower court stated in its reasons for judgment that the proof of possession showed that the plaintiff and the defendant had conducted almost the same activities: on the property. The plaintiff and the defendant could not both have actual possession of the property. It is true that the character of the land must be considered! in order to determine what acts of dominion amount to possession, but, where the-opposing parties rely on practically the same acts of dominion to establish possession, neither could be considered as having possession of the property to the exclusion of the other.

The land involved in this suit is located in the Atchafalaya Basin and subject to periodic overflow. It is accessible only by boat. There has never been much timber on the land and it -has no value for trapping.

The plaintiff has been engaged for a. number of years in -the production of lumber and has acquired some 50,000 acres of land in this basin in connection with its. operations, from which it has taken timber for its sawmills. No timber has ever been, cut from the land involved in -this suit by the plaintiff. The evidence indicates that the plaintiff did not consider that it owned this land until sometime in 1940. When it executed a lease on October 12, 1934, to the-Shell Oil Company covering all its lands, the land involved in this suit was not included.

The plaintiff employed the defendant, a. civil engineer, to check on the titles of its lands during 1921 and 1922. The defendant testified that he informed the plaintiff shortly thereafter that Section 6, a portion of which is involved in this suit, was not assessed to it and the plaintiff could take possession of this section and perfect its title. The record discloses that the plaintiff did not claim title to this property until 1940. Prior to that time, the land involved in this suit had practically no commercial value, but during 1940 a sudden interest was taken in the mineral development of the lands lying in the .basin. The plaintiff did not have the land assessed to it until 1940 or pay any taxes on it prior to that time. Since that date, the plaintiff has been paying taxes on this property.

The defendant began acquiring an interest in the lands in controversy sometime in the year, 1936. In 1939 the defendant and his co-owners granted a mineral lease on this property. One of the parties from whom he acquired an interest in a portion of- this property had once actually lived on the property and exercised dominion over that portion of it. The defendant, during the year, 1936, executed a timber contract and timber was taken from some portions of this land. The defendant and his co-owners have been paying taxes on the property for approximately the same period of time that the taxes were paid by the plaintiff.

The plaintiff relies on the activities of its agents to establish its possession. The activities of the agents consisted of running and blazing lines around the property in the year, 1941. They painted the trees along the line with yellow paint and placed signs, measuring about ten inches by fourteen inches, upon which was written the name of the plaintiff and a warning to trespassers, about every 300 feet along the lines. These employees did not return to the property until 1943 to look after the signs. They returned again in 1944 and in in 1945. These activities, plus the payment of taxes for the year, 1940 and subsequent years, constitute the proof relied on by the plaintiff to establish its possession.

The defendant testified that he had run lines on two sides of the property prior to 1940 and had instructed persons who were living in a camp on the property to look after the land and prevent trespassing thereon. The record shows that prior to 1940 the defendant and his co-owners had; granted a mineral lease on this property and that the defendant sold timber from' the lands. The defendant and his co-owners have paid taxes on the property since 1940.

The proof of the acts of dominion on behalf of the plaintiff and the defendant to establish possession are of a similar nature and character, and this Court would not be warranted in' disturbing the judgment of the lower court on a question of fact where the evidence does not show any manifest error in its findings. The plaintiff is not without a remedy for the reason it can institute suit to establish its title, where niether of the parties is in the actual possession of the property, under the provisions of Act No. 38 of 1908.

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

O’NIELL, C. J., and . FOURNET, J., absent.


author: HAMITER, Justice.

text:
    213 La. 790
    In re HIBERNIA BANK & TRUST CO.
    No. 38900.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Harry W. Belfor, in pro. per.
    Dufour, St. Paul & Levy and Montgomery, Fenner & Brown, all of New Orleans, for appellee.
   HAMITER, Justice.

The devolutive appeal in this cause and also the devolutive appeals in 35 So.2d 736, 35 So.2d 736, and 35 So.2d 736, were taken by Harry W. Belfor from judgments decreeing him to be without interest to oppose certain items in the liquidation proceedings' of the Plibemia Bank & Trust Company of New Orleans.

The State Bank Commissioner and the Liquidator have filed motions to dismiss the appeals in all four cases, they assigning various grounds for the dismissal. No brief in opposition to the motions has been submitted by appellant.

The order of appeal in this cause (No. 38,900) was entered on May 23, 1947, and the court at that time designated July 21, 1947, as the return date. On four separate occasions thereafter the appellant applied to this court for orders, and they were granted, extending the .time for filing the transcript of appeal, the last application having been filed on January 21, 1948. Pursuant to it an extension was permitted until February 21, 1948. The several applications were supported by affidavits of the Clerk of the Civil District Court 'in which he stated in substance that his failure to timely complete the transcript was due to the voluminous record in the liquidation proceedings and the congestion of work in the transcript department of his office.

The appeals in the other three cases were •ordered on October 9, 1947, and made returnable on December 4, 1947. In connection with each of these appellant obtained two extensions of- time for filing the transcript (the last ending February 19, 1948), his applications therefor having been supported by affidavits, similar to those above described, of the Clerk óf the Civil District Court. • ' '

The power and authority of this court to grant an extension for the filing of a transcript of appeal is governed and controlled by the provisions of Article 883 of the . Code of Practice. This' article' provides : “If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the - record from the court below, and was prevented from doing so by any event not under his control, he may either in person or by attorney apply to the court before the expiration' of three days, * * * and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction; s|s Sis * >1

The extensions with reference to the four appeals in question were ordered on appellant’s showing (the submitted affidavits) of an event apparently not under his control which was that the clerk of court was unable to timely prepare the transcripts on account of the voluminous record in the proceedings, it consisting of 24 volumes and approximately 2,000 documents. In their motions to dismiss the appeals, however, appellees maintain that this court was misled by appellant, in his applications for the extensions, as to the real reason for the delay and for the clerk’s inability to prepare the transcripts in time. They charge, among other things, that the only cau'se therefor was appellant’s neglect in not informing the clerk as to the particular documents from the voluminous record required to be incorporated in the transcripts. And in Substantiation of the charge they direct attention to an affidavit of the clerk of court, dated February 20, 1948, and furnished with the motions to dismiss, and also to another affidavit of that official, dated February 6, 1948, and submitted in connection with- appellees’ .previously filed motions. to rescind and recall an order ex-tending the return date.

These affidavits disclose that the clerk of court at numerous times, prior to and after October 9, 1947, requested appellant to designate which of the documents comprising the liquidation proceedings record were to be incorporated in the transcript of appeal, and he was promised on each occasion that the information would be furnished “within a few days.” But despite the promise it was not forthcoming until January 30, 1948, after appellant had requested the execution of an additional affidavit, to permit the securing of a further extension, and affiant had declined to give it. Three days later, or on February 2, 1948, preparation of the four transcripts was commenced, and all were completed, and delivered to appellant, within a period of 18 days thereafter.

That only a comparatively short period of time was needed for the preparation is also evidenced by the transcripts themselves. To provide the four of them the clerk was required to make a total of only 134 double spaced typewritten pages; and all pages are not full, some containing three or four lines.

Under these circumstances we must and do hold that some, if not all, of the orders granting extensions of time to appellant in connection with each appeal were improvidently issued, and, hence, the four appeals should be dismissed. Had appellant promptly notified the clerk of court as to the documents needed, as was frequently requested of him, obviously the transcripts would have been completed and filed at least within the periods covered by the first extensions of the respective return days, if not prior to the dates on which the appeals were made returnable originally. This being true some of appellant’s repeated assertions — that he was prevented from filing the transcripts in this court by an event not under his control — were inaccurate, incorrect and improper. And without such assertions the extensions would not have been granted.

Our holding herein is in keeping with the decision of this court in Rex Realty Company, Inc., v. Howard’s D. G. S., Inc., 186 La. 867, 173 So. 513. Therein the defendant was granted orders of appeal on July 8, 1936, the appeal being returnable on September 4, 1936. On August 25, 1936, i-t filed a devolutive appeal bond, and two days later-applied for an extension of the -return, date until November 4, 1936. The extension was granted on the.strength of a certificate of the clerk of the district court stating that the work in his office Was congested. Thereafter plaintiff moved to dismiss the appeal and attached to its motion an affidavit of the district court clerk to the effect that the transcript would have been completed by the original return date if the appellant had filed the bond within a reasonable time after the appeal was ordered. In sustaining the motion we cited numerous decisions of this court and commented: “From the foregoing facts, it appears clear to us that it was entirely the fault of defendant and appellant that the transcript was not prepared and ¡filed in this cour-t on September 4, 1936, the original return day. The unusual delay of seven weeks in filing the devolutive appeal bond by the defendant and appellant made it impossible for the clerk’s, office to prepare the transcript between August 25 and September 4, 1936. Therefore, the necessity for asking for an 'extension of time was due entirely to the procrastination of the defendant and appellant. Under such circumstances, the appeal should be dismissed. * * * ”

For the reasons assigned the 'motion to dismiss the appeal - is sustained, and the appeal is'dismissed at appellant’s costs.


text:
    213 La. 797
    In re Liquidation of HIBERNIA BANK & TRUST CO. on Opposition of Harry W. Belfor.
    No. 38901.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Harry W. Belfor, in pro. per.
    Dufour, St. Paul & Levy and Montgomery, Fenner & Brown, all of New Orleans, for appellee.
   HAMITER, Justice.

For the reasons assigned in, 35 So.2d 733, the motion to dismiss the appeal is sustained, and the appeal is dismissed at appellant’s costs.


text:
    213 La. 797
    In re Liquidation of HIBERNIA BANK & TRUST CO., on Opposition of Harry W. Belfor.
    No. 38902.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Harry W. Belfor, in pro. per.
    Ellis, Ellis & Lancaster, Milling, God-chaux, Saal & Milling, and M. Truman Woodward, Jr., all of New Orleans, amici curiae.
    Montgomery, Fenner & Brown, Dufour, St. Paul & Levy and John St. Paul, Jr., all of New Orleans, for defendants-ap-pellees.
   HAMITER, Justice.

For the reasons assigned in. 35 So.2d 733, the motion to dismiss the appeal is sustained, and the appeal is dismissed at appellant’s costs.


text:
    213 La. 798
    In re Liquidation of HIBERNIA BANK & TRUST CO. on Opposition of Harry W. Belfor.
    No. 38903.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Harry W. Belfor, in pro. per.
    Ellis, Ellis & Lancaster, Milling, God-chaux, Saal & Milling, and M. Truman Woodward, Jr., all of New Orleans, amici curiae.
    Montgomery, Fenner, & Brown, Dufour, St. Paul & Levy and John St. Paul, Jr., all of New Orleans, for defendants-appel-lees.
   HAMITER, Justice.

For the reasons assigned in, 35 So.2d 733, the motion to dismiss the appeal is sustained, and the appeal is dismissed at appellant’s costs.


text:
    213 La. 799
    SHEFFIELD v. JEFFERSON PARISH DEVELOPERS, Inc. WATTS v. SAME.
    No. 38350.
    Supreme Court of Louisiana.
    April 26, 1948.
    Chaffe, McCall, Toler & Phillips and Leon Sarpy, all of New Orleans, for plaintiffs-appellants.
    Leslie P. Beard, of New Orleans, for defendant-appellee.
   PONDER, Justice.

Hubert S. Sheffield, individually and under a power of attorney for ten others, brought suit against Jefferson Parish Developers, Inc., alleging that the defendant had overcharged the eleven plaintiffs for rents during the period beginning September 10, 1942 and ending October 31, 1944 in amounts ranging from $83.60 to $250, each, making a total overcharged to all the plaintiffs, combined, of $1,736.60. They seek to recover treble this amount as damages under the Emergency Price Control Act of Congress of January 30, 1942, 56 Stat. 23, '50 U.S.Code § 901 et seq., 50 U.S.C.A.Appendix, § 901 et seq.

, Shelton W. Watts brought suit against the same defendant for $330, representing treble the amount of the overcharge that he alleges the defendant collected from him during the same period of time. The suits were consolidated for trial. Upon trial, the lower court rej ected all the demands and the plaintiffs have appealed.

We informed counsel representing the opposing parties, on the hearing of this appeal, that we entertained serious doubt of our having jurisdiction to entertain the appeal. Counsel for the defendant at that time conceded that the jurisdiction of the appeal did not lie in this Court. Since that time, counsel for the plaintiffs has moved for the transfer of the cases to the Court of Appeal for the Parish of Orleans. He states in his motion that he is of the opinion that the jurisdiction of the appeal lies in the Court of Appeal for the Parish of Orleans.

We find, from an examination of the record, that the amount sought to be recovered by each of the plaintiffs is not sufficient to vest jurisdiction of the appeal in this Court and it is only by the consolidation or cumu-lation of all the claims that the jurisdictional amount of this Court is reached.

Under the provisions of Article 92 of the Code of Practice, jurisdiction cannot be created by consent of the parties. The plaintiffs do not come under Act No. 47 of 1928 because their claims do not arise out of a common transaction. Each of the plaintiffs leased different premises from the defendant under separate contracts and they have no community of interest. There was no assignment of their claims for a valuable consideration to Sheffield. The articles of the Code of Practice, Article 148, et seq., are not applicable because different plaintiffs are involved whose rights of recovery are based under different contracts. We would not have jurisdiction to entertain an appeal from a judgment based on either of the separate claims and our jurisdiction cannot be extended by lumping the claims together by consent of the parties when there is no community of interest.

For the reasons assigned, it is ordered that these consolidated cases be transferred-to the Court of Appeal for the Parish of Orleans pursuant to the provisions of Act No. 19 of 1912, provided that the appellants shall file the record in that court within thirty days from the date that this decree becomes final, otherwise the appeal shall stand as dismissed.

O’NIELL, C. J., did not take part.


text:
    213 La. 803
    FOUCHAUX v. BOARD OF COM’RS OF PORT OF NEW ORLEANS.
    No. 38464.
    Supreme Court of Louisiana.
    April 26, 1948.
    Porteous & Johnson and Parnell J. Hy-land, all of New Orleans, for plaintiff-appellant.
    Eldon S. Lazarus and Emero S. Stieg-man, both of New Orleans, for defendant-appellee.
   PONDER, Justice.

The plaintiff brought suit against the defendant, a state agency, seeking to recover damages in the amount of $15,000.00' for personal injuries which he received while in the employment of a sub-lessee of the defendant. The suit is brought under authority granted to the plaintiff by Act No. 365 of 1946. The constitutionality of the act was attacked and the lower court decreed it to be unconstitutional for the reason that the effect of the judgment that might be rendered was not provided for, in violation of Article 3, Section 35 of the Constitution, and dismissed the plaintiffs suit. The plaintiff has appealed to this Court. The defendant moves to dismiss the appeal on the ground that this Court is without jurisdiction to entertain the appeal.

The defendant takes the position that, this being a suit for personal injuries, the exclusive jurisdiction of the appeal is vested in the Court of Appeal for the Parish of Orleans. The defendant contends that Act No. 365 of 1946 is not a law within the purview of Article 7, Section 10 of the Constitution which gives this Court exclusive jurisdiction when a law of the State has been declared unconstitutional. The defendant relies on the holding in the cases of Durbridge v. State, 117 La. 841, 42 So. 337; Lewis v. State, 196 La. 814, 200 So. 265; Hebert v. Miller, 205 La. 105, 17 So. 2d 1; and Lewis v. State, 207 La. 194, 20 So.2d 917. The cases cited are authority to the effect that acts of the Legislature authorizing suits against the State are not special or local laws within the purview of Article 4, Section 6 of the Constitution in the sense that notice would have to he given before their enactment. The later Lewis case and the case of Jefferson Lake Sulphur Company v. State of Louisiana, La.Sup., 34 So.2d 331, which was handed down on December 15, 1947, are authority that the Legislature may authorize suit against the State by resolution.

In a number of cases this Court has referred to acts of the Legislature granting authority to sue the State as special acts. It is of no particular moment whether the authority is granted by a special act or by a resolution of the Legislature. In either instance it would be a solemn expression of legislative will and have the binding effect of law. Law is defined by Article 1 of the Revised Civil Code as being a solemn expression of legislative will. When the authority is granted by the Legislature it is as binding on the courts of this State and the parties affected thereby as any law that might be enacted by the Legislature. The framers of the Constitution undoubtedly contemplated that the authorization to sue the State should have the binding effect of law for the reason that the law-making body only has been vested with the power to authorize such suits and the Constitution has placed a restriction on this power by requiring the Legislature to provide the method of procedure and the effect of the judgments. This Court has consistently entertained jurisdiction in all cases where acts of the Legislature granting authority to sue the State have been declared unconstitutional by the lower courts, irrespective of where the appeal would otherwise lie, and in the two aforementioned cases where the grant of authority to sue the State were considered as resolutions of the Legislature. We see no reason to depart from our prior jurisprudence at this late date. It might be suggested that this question has not been previously raised, but this would not change the situation because this Court must take cognizance of its own jurisdiction. Whether the authority is granted by special act or by resolution of the Legislature it must be considered a law within the contemplation of Article 7, Section 10 of the Constitution which gives this Court exclusive jurisdiction when a law of this State has been declared unconstitutional.

For the reasons assigned, the motion to dismiss is denied.

O’NIELL, C. J., concurs in the decree.


author: FOURNET, Justice.

text:
    213 La. 807
    HOUEYE v. ST. HELENA PARISH SCHOOL BOARD.
    No. 38469.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.

      Bolivar E. Kemp, Dist. Atty. and Duncan S. Kemp, Asst. Dist. Atty., both of Amite, and Reid & Reid, of Hammond, for defendant-appellant.
    Ponder & Ponder, of Amite, for relator-appellee.
   FOURNET, Justice.

Emmett Erwin Houeye, who was discharged as the principal of the Woodland High School by the St. Helena Parish School Board under resolution adopted on April 10, 1946, instituted mandamus proceedings in the district court of that parish to compel the board to rescind its resolution and reinstate him at the salary of $215 a month from the date of his discharge. The school board is appealing from a judgment of the district court annulling the resolution and ordering the plaintiff reinstated.

In the lower court, before answering, the school board excepted to the procedure being employed by the plaintiff, contending that his pleading disclosed neither a cause nor a right of action for the reason that his remedy under the Teacher’s Tenure Act, Act No. 250 of 1944, was by appeal to the court, which must be by ordinary proceedings. In this court the board is re-urging these exceptions.

The writ of mandamus is defined in the Code of Practice to be “an order issued in the name of the State by a tribunal of competent jurisdiction, and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty or quality with which it is clothed.” Article 829. It only lies to compel the performance of duties that are purely ministerial in nature, and when they are so clear and specific that no element of discretion is left, in their performance. When the acts or duties are such that they necessarily call for the exercise of judgment and discretion by the officer or body at whose hands their performance is required, this remedy will not lie. State ex rel Daboval v. Police Jury, 39 La.Ann. 759, 2 So. 305; Badger v. New Orleans, 49 La. Ann. 804, 21 So. 870, 37 L.R.A. 540. And it is the well settled jurisprudence of this court that the right to resort to summary proceedings (as the plaintiff did in this case) cannot be extended beyond the cases expressly authorized by law. Article 754 of the Code of Practice; Baker v. Doane, 3 La.Ann. 434; Sumner v. Dunbar, 12 La. Ann. 182; Succession of Jamison, 108 La. 279, 32 So. 381; Calcasieu Building & Loan Ass’n. v. Goudeau, 182 La. 247, 161 So. 599; and Succession of Esteves, 182 La. 604, 162 So. 194.

A mere reference to the act under which these proceedings were instituted, Act No. 250 of 1944, will show that neither mandamus nor summary proceedings are authorized. After detailing the procedure to be followed in removing or disciplining a permanent teacher, the act provides that the teacher so removed or disciplined “may, not more than one year from the date of said finding by the said school board, petition a court of competent jurisdiction for a full hearing to review the action of the said school board, and the said court shall have jurisdiction to affirm or reverse the action of the said school board in the said matter.” Section 1, amending Section 48 of Act No. 100 of 1922. Clearly, therefore, the trial judge erroneously overruled the exception filed by the defendant.

For the reasons assigned, the judgment of the lower court is annulled and set aside and it is now ordered, adjudged, and decreed that plaintiff’s suit be dismissed, at his cost.

PONDER, J., recused.


text:
    213 La. 811
    STATE v. POWELL.
    No. 38855.
    Supreme Court of Louisiana.
    April 26, 1948.
    Campbell & Padgett, of Bossier City, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and A. M. Wallace, Dist. Atty., of Benton, for appellee.
   PONDER, Justice.

The defendant was tried for the crime of manslaughter and convicted of negligent homicide. He was sentenced to serve three years in the State Penitentiary. He has appealed.

During the course of the trial the defendant reserved two bills of exceptions, leveled at a question propounded by the district attorney while cross-examining the defendant’s character witness.

The defendant put his character at issue by placing a witness on the stand who testified to his good reputation. In cross-examining the witness the district attorney asked the following question, viz.: “Hadn’t you heard that this defendant had been arrested, charged and indicted by the Grand Jury with being the father of the child of his minor sister-in-law ?” After the witness had answered the question in the affirmative, the defendant’s counsel moved for a mistrial. The lower court overruled the motion, instructed the jury to disregard the question and answer, and ordered the trial to be proceeded with. It is from this ruling of the court that he now complains.

He contends that the refusal of the trial court to order a mistrial was prejudicial error. He has not presented us any authority to support his contention. He concedes that the district attorney has the right to cross-examine a character witness regarding specific instances where he might have heard the character of the accused discussed, but contends that the scope of cross-examination is not unlimited. He takes the position that the district attorney does not have the authority to inquire into a charge of a different nature than that for which the accused is being tried.

When the defendant puts his character at issue the State has the right to rebut it with proof of his bad reputation for violence, passion and vindictiveness. This right is more evident when the inquiry is instituted upon cross-examination of the defendant’s witness. State v. Farrer, 35 La. Ann. 315.

A witness testifying to the good character of an accused may properly be examined regarding particular facts in order to test the soundness of his opinion and the data upon which it is founded. State v. Thornhill, 188 La. 762, 178 So. 343.

A character witness for an accused may be questioned as to previous arrests for the purpose of testing the witness’s knowledge of the accused’s reputation. State v. Jacobs, 195 La. 281, 196 So. 347.

For the reasons assigned, the conviction and sentence are affirmed.

O’NEILL, C. J., dissents.


text:
    213 La. 814
    SAMPOGNARO v. SAMPOGNARO.
    No. 38699.
    Supreme Court of Louisiana.
    April 26, 1948.
    Joseph C. Brocato, of Shreveport, for plaintiff-appellant.
    Dhu Thompson, of Monroe, for defendant-appellee.
   PONDER, Justice.

The plaintiff, Mrs. Sarah Cordaro Sam-pognaro, brought suit against her husband, Russell Sampognaro, for separation from bed and board on the ground of abandonment. Upon trial, the lower court rejected her demands and the plaintiff has appealed.

After the judgment was rendered in the lower court and while the appeal was pending in 'this Court, the husband brought suit against his wife for divorce on the ground of their having lived separate and apart for more than two years. On trial of this subsequent suit and during the pendency of this appeal, the lower court gave judgment granting the husband an absolute divorce. The community of acquets and gains was dissolved, the custody of the two minor children, born of the marriage, was awarded" to the husband, the wife was awarded alimony in the sum of $25.00 per month, and her attorney was awarded a fee of $50.00, to be paid out of the assets of the community. The judgment also provided that the wife would have the right to see the minor children at all reasonable times and places.

Russell Sampognaro moves to dismiss the appeal on the ground that the suit for separation from bed and board went out of legal existence when he was granted an absolute divorce. He has attached to his motion a certified copy of the judgment of the lower court granting him an absolute divorce.

The same question presented by the motion to dismiss the appeal was considered by this Court in the case of Cotton v. Wright, 193 La. 520, 190 So. 665, and it was held that a suit for separation from bed and board had no legal existence after a divorce was granted. Therein, it wa-s stated in effect that the bonds of matrimony were completely severed by a judgment of divorce and the wife could proceed no further with a suit for separation from bed and board because the defendant was no longer her husband.

For the reasons assigned, the appeal is dismissed at defendant’s, appellant, cost.


text:
    213 La. 817
    COGSWELL v. BOARD OF LEVEE COM’RS OF ORLEANS LEVEE DIST. et al.
    No. 38387.
    Supreme Court of Louisiana.
    April 26, 1948.
    Benjamin M. Goodman, of New Orleans, for plaintiff and appellant.
    Chaffe, McCall, Toler & Phillips and Harry McCall, Jr., all of New Orleans, for defendant-appellee.
   PONDER, Justice.

The plaintiff is appealing from the judgment of the lower court sustaining a plea of res adjudicata and dismissing her suit insofar as the defendant Railroad Company is concerned.

The plaintiff instituted this suit against the Board of Levee Commissioners of the Orleans Levee District, the Texas an¿ New Orleans Railroad Company and the City of New Orleans, seeking to recover an alleged loss of rentals of $33,600.00 and to compel the defendants to restore North Peters Street to its former condition.

The plea of res adjudicata on the part of the Railroad Company was sustained by the lower court based on a suit instituted by the plaintiff against the Railroad Company on April 13, 1939, in the Civil District Court of Orleans Parish. We entertained this suit on appeal and handed down an opinion on May 25, 1942, to the effect that the Railroad Company was not responsible to the plaintiff for any damages that she may have sustained by the obstruction of the street and refused to give the plaintiff the relief prayed for. Cogswell v. Texas & New Orleans Railroad Company, 200 La. 696, 8 So.2d 645. In this prior suit the plaintiff sought to recover the damages in the following amounts, viz.: $15,400 for depreciation in the value of her property and $9,600 for loss of revenue and rentals from the property, a total amount of $25,-000.00. She also prayed for an injunction against the Railroad Company to prohibit them from using the rail tracks situated on the slope of the levee and directing the removal of the tracks and the repaving and reconditioning of the street to its former condition. She asked for an alternative relief, which it is not necessary, for the purpose of this decision, to recite.

It appears from the record in the prior suit and the record in the present suit that the plaintiff is the owner of unimproved real property in the City of New Orleans fronting on North Peters Street. The front of the property abuts the levee which is maintained by the Board of Levee Commissioners, upon which levee there are several switch tracks owned and maintained by a number of railroad companies operating under franchises from the City and State. The two switch tracks nearest to the plaintiff’s property belong to the defendant Railroad Company.

North Peters Street was a paved thoroughfare prior to the year, 1926. At that time the levee occupied no part of the street and extended upward from the riverside of this roadway. At that time there were a number of railroad tracks located on the slope of the levee, including the tracks of the defendant’s predecessor, Morgan’s Louisiana and Texas Railroad and Steamship Company. However, the Board of Levee Commissioners, being of the opinion that the levee, as it then stood, was unsafe and it was necessary to strengthen it in order to afford greater flood protection to the populace of the City, decided to rebuild it and let a contract for the reconstruction work. The railroad tracks were removed and placed on the levee after it had been rebuilt. This new levee, which was erected in 1926, completely covered the roadbed of North Peters Street. The switch tracks were installed in their present location with the permission of the Levee Board and the City.

We pointed out in the prior suit that the switch tracks of the defendant company are not located in the street in a manner to interfere with the plaintiff’s use and enjoyment of her property and, as the tracks are situated on the slope of the levee, it is the levee and not the tracks which occupies the street. We further pointed out that since the Levee Board expropriated the street that the defendant Railroad Company was not responsible for any damages that the plaintiff might have sustained.

On this appeal the plaintiff contends that the cause of action in this suit is different from that set forth in her prior suit against the Railroad Company. She contends that in the former suit she asked for a mandatory injunction requiring defendant to remove its tracks, whereas in the instant case she seeks to compel all of the defendants to restore North Peters Street to its former condition. In her prior suit, she asked for an order directing the removal of the tracks and for the repaving and reconditioning of the street to its good former condition. In other words, she asked for the restoration of North Peters Street to its former condition in both suits.

The appellant takes the position that the plaintiff asked for damages in the prior suit, whereas she is seeking to recover for the loss of rentals in the present suit. One of the items of damages sought to be recovered in the prior suit, as reflected by her amended petition therein, was $9,600.-00 for loss of revenue and rentals from the property. So it is apparent that she has sought to recover loss of rentals in both suits.

The appellant takes the position that the cause of action in the prior suit was the obstruction by the Railroad Company of North Peters Street, whereas in the present suit her cause of action is the conspiracy of the defendants.

A conspiracy does not of itself give rise to a right of action. The action is for damages caused by acts committed pursuant to a conspiracy rather than by the conspiracy itself and, unless something is done which results in damage, there could be no civil action. Louisiana v. McIlhenny, 201 La. 78, 9 So.2d 467.

The appellant takes the position that the plea of res adjudicata is not applicable because the suits are against different defendants. We see no merit in this contention. The mere joining of the Levee Board and the City as defendants does not change the nature of the suits insofar as the Railroad Company is concerned. In both -suits, insofar as the Railroad Company is concerned, the demands are the same, the parties are the same and the demands are founded on the same cause of action. Such being the case, all of the essential requisites prescribed by Article 2286 of the Revised Civil Code exist and the plea of res adjudicata is well founded.

The case of Hope v. Madison, 194 La. 337, 193 So. 666, is not applicable because separate causes of action were involved therein. The same is true in the case of Lloveras v. Reichert, 197 La. 49, 200 So. 817. In the case of Bullis v. Town of Jackson, 203 La. 289, 14 So.2d 1, the suits were against different defendants and for that reason it is not applicable.

For the reasons assigned, the judgement is affirmed at appellant’s cost.


text:
    213 La. 823
    SAVOIE v. SNELL. In re SNELL.
    No. 38550.
    Supreme Court of Louisiana.
    April 26, 1948.
    McLoughlin & West, of New Orleans, for defendant and appellant.
    Carroll Montet, of New Orleans, for plaintiff and appellee.
   PONDER, Justice.

We granted a review in this case because we had serious doubts as to the authority of the Court of Appeal to grant the plaintiff both the rescission of the sale and damages under the Emergency Price Control Act of Congress, 50 U.S.C.A.Appendix, § 901 et seq.

The defendant sold the plaintiff an automobile for $581.75 with warranty for the maximum ceiling price for the automobile if it were in good running condition. It appears that the block of the engine was cracked at the time it was sold to the plaintiff, which defect was not known to the seller at the time it was sold. The ceiling price for the automobile in its actual condition at that time was, as is, or nonwarranted, $461.00 or, in other words, $115.00 less than the amount paid for it by the purchaser.

The articles of the Revised Civil Code pertinent to a disposition of this case are as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” Article 2520.
“A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.” Article 2529.
“The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.” Article 2531.

The judgment of the Court of Appeal insofar as it ordered a rescission of ‘the sale is entirely correct for the reason that the seller warrants the thing sold, unless the warranty is expressly waived, to be fit for the purpose intended. An automobile, whether second-handed or not, is not fit for the purpose intended if it is not in running condition. Crawford v. Abbott Automobile Company, 157 La. 59, 101 So. 871.

An action for nullity or rescission of a contract lies only for an alleged vice in the contract itself, tainting it ab initio. George v. Lewis, 11 La.Ann. 654. The red-hibitory action as defined by Article 2520 of the Revised Civil Code is one of rescission. It destroys the very existence of contract from the beginning. From a mere reading of the aforementioned articles of the Revised Civil Code and especially Article 2531, the liabilities of the seller is fixed and the seller is only bound to restore the price, reimburse the expenses occasioned by the sale, and reimburse the expenses incurred for the preservation of the thing.

As we take it, the overcharge of this automobile was brought about by the seller’s good faith, believing the automobile to be in good running condition. In fact, the seller warranted it to that effect. It was only after the sale that the defect or vice was ascertained and the automobile was found to be practically worthless. In order for the defendant to recover under the Emergency Price Control Act, it would have to be under the contract. Since the sale has been rescinded there could be no damages awarded under the contract for the reason that the contract is avoided.

We have examined the Emergency Price Control Act and find nothing that would conflict with our findings and no authority has been pointed out to the contrary.

Article 2531 of the Revised Civil Code -fixes the liability of a seller in good faith, and no other or additional relief could be granted. To grant additional relief would violate the spirit and text of the codal article which is designed to place the parties, as near as practical, in the same position they were before the sale was consummated. The judgment of the Court of Appeal, insofar as it awards the defendant $115.00 damages for the overcharge, and $50.00 attorney’s fees under the Emergency Price Control Act of Congress, must be set aside.

For the reasons assigned, the judgment of the Court of Appeal for the Parish of Orleans is amended so as to reject the award of $115.00 and $50.00, for overcharge and attorney’s fees; and as thus amended, the judgment is affirmed. The costs of the proceedings in this Court are to be paid by the plaintiff, appellee.


text:
    213 La. 829
    STATE v. CARTER.
    No. 38856.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    Philo Coco, of Marksville, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Earl Edwards, Dist. Atty., of Marksville, for plaintiff-appellee.
   HAMITER, Justice.

The defendant, Calvin Wilson Carter, was tried under a bill of information charging the offense of carnal knowledge of a juvenile, she being thirteen years of age and he being above the age of eighteen years. During the course of the proceedings, over defendant’s objection, the court instructed the jury that if it found that defendant did not commit carnal knowledge of the prosecutrix it could find, if warranted by the evidence, that he 'attempted to commit that crime. The verdict rendered was: “We the jury find the accused guilty of attempt to commit carnal knowledge of a juvenile.”

Following the denying of motions for a new trial and in arrest of judgment, the court sentenced the defendant to serve eighteen months in the State Penitentiary. Pie is appealing from the conviction and sentence.

Defendant’s three bills of exceptions, reserved respectively to the overruling of hiis objection to the mentioned instruction and to .the denying of his motions for a new trial and in arrest of judgment, present for our consideration the single question of whether the judge correctly instructed the jury that a verdict of guilty of attempt to commit carnal knowledge of a juvenile would be responsive to the offense charged.

“Whenever the indictment sets out an offense including other offenses of less magnitude or grade, the judge shall charge the jury the law applicable to all offenses •of which the accused could be found guilty under the indictment * * Article 386, Louisiana Code of Criminal Procedure. “The verdict must be responsive to the indictment, that is to say, no one can be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged * * Article 405, Louisiana Code of Criminal Procedure. ■“When the crime charged includes another of lesser grade, a verdict of guilty of the lesser crime is responsive to the indictment, and it is of no moment that the greater offense is a felony and the lesser a misdemeanor.” Article 406, Louisiana Code of Criminal Procedure. “An offender who commits an offense which includes all of the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses. In such case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the lesser and included offenses.” Article 5 of the Louisiana Criminal Code (Aot 43 of 1942).

From these legal principles it must be concluded that the judge’s instruction to the jury, of which complaint is here made, was proper provided that the crime of carnal ■knowledge of a juvenile necessarily includes all of the elements of the offense of Attempting to commit carnal knowledge of a juvenile.

Carnal knowledge of a juvenile is committed when any one over the age of seventeen has sexual intercourse, with her consent, with any unmarried female person of the age of twelve years or over, but under the age of seventeen years. Article 80, Louisiana Criminal Code.

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is .guilty of an attempt to commit the offense intended. The attempt is a separate but lesser grade of the intended crime. Mere •preparation to commit a crime, however, is not sufficient to constitute an attempt. Article 27, Louisiana Criminal Code. Thus, -the essential elements of an attempt (the lesser offense) are an actual specific intent to commit the particular crime (greater or basic offense) and an overt act (not a mere preparation) directed toward that end.

Both of these elements are necessarily contained in the crime (charged to defendant) of carnal knowledge of a juvenile, as its definition above given will disclose; hence, we hold that the offense of attempting to commit carnal knowledge of a juvenile is responsive to such basic crime and -that the trial judge acted correctly in so instructing the jury.

Defense counsel argues in this court that in as much as the basic offense presupposes the consent and willingness of both the male and female whatever the accused might have done previous to an actual commission of sexual intercourse amounted at most to a mere preparation which is not sufficient to constitute an attempt. The matter of consent or willingness of the accused and the prosecutrix, which is an element common to both the greater and lesser offenses under consideration herein, is important to the extent that it serves to distinguish between the crimes of carnal knowledge and rape. See Article 41, Louisiana Criminal Code. Whether the liberties taken by the accused with the prosecutrix amounted to a mere preparation or constituted an overt aot directed toward the accomplishment of the basic offense was a question for determination by the jury.

Further, defense counsel argues: “Any conduct on the part of defendant and the prosecutrix which could be considered as approaching or preparing for the crime of carnal knowledge is specifically covered by the Criminal Code under Article 740-81 * * This article, which denounces and defines indecent behavior with juveniles, may be applicable to certain conduct of the kind mentioned. But we do not understand it to exclude from the Louisiana Criminal Code the denounced attempt to commit carnal knowledge of a juvenile. It does not so provide.

For the reasons assigned the conviction and sentence are affirmed.

O’NIELL, C. J., does not take part.


text:
    213 La. 834
    AMERICAN CREOSOTE WORKS v. BOLAND MACHINE & MFG. CO.
    No. 38451.
    Supreme Court of Louisiana.
    April 26, 1948.
    Rehearing Denied June 1, 1948.
    James G. Schillin, of New Orleans, for applicant.
    Chaffe, McCall, Toler & Phillips and Leon Sarpy, all of New Orleans, for plaintiff and appellee.
   FOURNET, Justice.

The plaintiff instituted this suit to recover the sum of $1,924.81, the price of certain creosoted fir pilings allegedly sold and delivered to the defendant, and the matter is now before us for a review of the judgment of the Court of Appeal for the Parish of Orleans affirming the judgment of the district court in favor of the plaintiff, as prayed for. (28 So.2d 342.)

On August 4, 1943, the plaintiff, the American Creosote Works, entered into a contract with the defendant, Boland Machine & Manufacturing Company, a co-partnership. This contract is incorporated in one of the plaintiff’s order forms. According to its terms the plaintiff agreed to supply the defendant with 24 creosoted fir pilings treated by what is known as the Full Cell Bethel Process and conforming to Navy specifications No. 39P14a (meaning 13 inches in diameter 3 feet from the butt or bottom end of the tree) in four lots of six units each, i. e., six 75' long, six 80' long, six 85' long, and six 90' long, at a price of 950 per lineal foot, f. o. b. the plaintiff’s plant at Southport in New Orleans, at which place they were to be loaded on the defendant’s truck, subject to inspection and acceptance by the defendant. Subsequently, according to a letter of August 17 confirming a telephone conversation had with the defendant, the contract was amended to provide for the loading of these pilings on the defendant’s barge at the plaintiff’s Southport plant wharf on Saturday, August 21, 1943. An extra charge of $25 was to be included in the purchase price under this new agreement for the barge loading.

Since the .plaintiff did not have these fir pilings in stock, they had to be specially ordered for treatment according to the detailed specifications and after they were processed the plaintiff, on August 20, under the provision in the contract calling for one day advance notice, notified the defendant by telephone to have a barge at its wharf so that loading might begin at seven the next morning, for delivery around noon. Accordingly, the defendant, on Friday afternoon, ordered a barge from the Bisso Coal and Towboat Company and it was tied up at the wharf ready for loading at the specified time. The actual loading was completed about eleven. The defendant, upon advice from the plaintiff, likewise asked the Bisso people to have a tug pick the barge up about noon, but before that time a fire started on the wharf of the 'plaintiff company and spread to the barge. When the tug did approach the wharf as instructed, the barge had been cut away from the wharf in an effort to save it and was drifting down the river enveloped in flames.

The defendant denied liability, contending that under the contract title did not pass to them until the property was loaded on the barge and tendered to them or their agent for inspection and acceptance.

The plaintiff, relying on Articles 1909, 2456, 2458, 2467, and 2468 of the Revised Civil Code, contends that title to these pilings passed to the defendant the moment they were treated arid removed from the processing shed; in any event, that title passed when the pilings were measured, counted, and loaded on the barge.

In passing on these issues, the Court of Appeal found that neither these codal articles nor the cases relied on by the defendant were applicable under the facts of this case, but concluded that title to the pilings had passed to the defendant prior to the fire inasmuch as they were, at that time, loaded on the barge furnished by the defendant in accordance with the court’s construction of the contract, the fact that the defendant was not to take possession of them until a later time, i. e., around noon, being immaterial.

We think the court’s conclusion with respect to the inapplicability of the codal articles is correct. A mere reference to these articles will show their general tenor to' be that the sale of an object is perfect and complete and the article is at the risk of the buyer as soon as there exists an agreement as to the object and price, although actual delivery has not been made and the price has not been paid, and that once the sale is perfected and completed, the only responsibility then resting on the seller is that of guarding the goods as a faithful administrator. But this rule applies only “if the contract is one of those that purport a transfer.” Article 1909. The contract in this case does not purport to be a transfer of the pilings to the defendant. On the contrary, its terms show very plainly that the pilings are to be transferred to the defendant only after they have been tendered for inspection and have actually been accepted. (Italics ours.)

Under this contract the plaintiff agreed to furnish the defendant with goods that had to meet certain specifications, that is, the pilings had to be of definite lengths and size and they had to be treated with creosote under a special process. While on the reverse side of this contract there is to be found, along with other printed provisions, the general stipulation that the “Buyer agrees to receive material when and as delivered on cars at Seller’s plant. It is specifically agreed that there shall be no claims of any kind after material is delivered as above,” this general stipulation is not controlling in this case for it has been abrogated by the very positive provision on the face of the contract, where all of the detailed specifications and Conditions are clearly set out, that the pilings were to be subject to final inspection and acceptance by the defendant at the plaintiff’s plant.

The intention of the parties as to when the pilings would be transferred to the defendant is not only thus clearly shown on the face of the contract itself, but is further demonstrated by the oral and documentary evidence in the record unmistakably showing the property belonged to the plaintiff until delivery was completed and that delivery could not be completed until the defendant, who was given the right to inspect and check it, had actually inspected it and accepted it, such acceptance being evidenced by the defendant’s signature on the delivery slip prepared for that purpose which constituted the defendant’s acknowledgment that the goods had been received in good condition and accepted.

We think our conclusion that the plaintiff did not consider ownership of the property passed to the defendant until after delivery had been completed is evidenced by its own construction of the contract as expressed in its letter to the defendant on August 27, 1943, a few days after the fire, wherein it is said: “Under the terms of our insurance policies our liability ends with completed delivery, and both the insurance adjustors and our attorneys have advised me that our policies will not cover this damage. After delivery is completed, it is customary for the then owner of the pilings to have them insured * * And the plaintiff’s understanding of the time when the delivery could be considered as completed is emphasized by the testimony of Mr. Theester A. Hamby, the plaintiff’s secretary-comptroller, to the effect that it was not necessary for the defendant to have the pilings insured until “the time he (defendant) takes possession of them, or when they come under his control — when they leave our control.” (Italics and brackets ours.)

And there can be no' question but that the defendant had the right to check and inspect the pilings before accepting them, as stipulated in the contract and also in accordance with the custom of the plant. According to the testimony of the plaintiff’s employees, the pilings ordered were stored in a pile on the yard after they had been creosoted, pending delivery. After the barge ordered by the defendant was tied up to the wharf the office furnished the yard checker with a card containing pertinent information relative to the specifications of the order being supplied the defendant. The checker measured and counted the pilings against this card to see that they met specifications before they were loaded on flat cars that took them from the yard, across the levee, and down to the wharf where they were turned over to another checker. This checker was also furnished with a card containing the specifications covering the order and he rechecked the pilings as they were loaded on the barge. After the last piling was loaded, this checker went back to the office and there filled out a slip listing the material that had been loaded under his supervision. This slip was left with the office force to be presented to the defendant customer or representative for signature at the time they were taken possession of, signifying the defendant’s acceptance and receipt of the goods in good condition.

We therefore conclude that delivery was never completed under the terms of this contract and under the facts of this case and that title had not passed to the defendant at the time the pilings were destroyed by fire; consequently, their loss was at the risk of the plaintiff and not that of the defendant.

For the reasons assigned, the judgment of the district court in favor of the American Creosote Works, as prayed for, and that of the Court of Appeal for the Parish of Orleans affirming the same, are reversed, and it is now ordered, adjudged, and decreed that the plaintiff’s suit be dismissed at its cost.

McCALEB, J., recused.