author: JANVIER, Judge.

text:
    COCI et al. v. JOHNESS, Inc.
    No. 18771.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.

      Sidney C, Schoenberger, of New Orleans, for plaintiffs and appellees.
    Kelleher, Hurley & Kohlmeyer, of New Orleans, for defendant and appellant.
   JANVIER, Judge.

This litigation grows out of a written contract entered into on March 13, 1940, under which the plaintiffs, William S. Coci and Emanuel D’Antoni, agreed to buy, and defendant, Johness, Inc., agreed to sell, five lots of ground in what is known as the Bridgedale Subdivision in the Parish of Jefferson.

Plaintiffs allege that the defendant corporation breached the contract and failed, though put in default, to deliver the property in accordance with the contract, and they pray for judgment condemning the defendant to pay over to them double the amount of the deposit which was made when the agreement was entered into. They also pray for a reasonable attorney’s fee, which is provided for in the contract in the event that either party should find it necessary to employ an attorney to enforce compliance.

Defendant corporation, admitting that the agreement was entered into, denies that it was in default, and avers that the plaintiffs themselves failed -to take title to the property and should be held to have forfeited the deposit which was made when the contract was signed.

From a judgment in favor of plaintiffs for $1120, which is double the amount of the deposit, and for an attorney’s fee of $200, defendant, Johness, Inc., has appealed.

The facts are more or less complex. On March 13, 1940, the written contract was entered into. Under it, Coci and D’Antoni agreed to buy, and Johness, Inc., agreed to sell, for $5600, “property located in Jefferson Parish, State of Louisiana, east bank of Mississippi River, situated in Section 'B’, Square SI, Bridgedale Subdivision; same being all of lots 2, 3 and lots 1, 19, 20 except that part of said lots 1, 19, 20 which were sold to the Louisiana Highway Commission by Johness Investments, Inc., on Oct. 14, 1937, by act passed before Wm. J. Guste, N.P., in C.O.B. 138, folio 233, in records of Jefferson Parish or as per title, ‡ ‡ S' ’>

With the exception of the words “or as per title,” which are printed in the form, all of the other words of the description arc typewritten.

The contract provided that the act of sale would be passed on or prior to April 10, 1940, before Sidney C. Schoenberger, notary public. Schoenberger is not only the notary named in the agreement, but he is ■the attorney for plaintiffs in this suit. It was also stipulated that a deposit of $560 would be made and that in the event that the vendees should fail to comply with the agreement, the vendor should have the right either to declare the deposit forfeited or to demand specific performance, and that in the event the vendor should not comply with the agreement, then the vendees should have the right to demand the return of double the deposit, or to insist upon specific performance.

In addition to the conditions and stipulations appearing on the printed and signed side of the contract, it was provided that other terms and conditions appeared “on reverse hereof.” Among the terms and conditions which appear on the face or on the reverse, we note the following; that the unpaid balance would be secured by vendor’s lien and mortgage and would be paid in monthly installments of $100 each; that as additional security, Johness, Inc., would be given a collateral note in the sum of $1,000, secured by first mortgage on certain other designated property and that the said note would be payable in one year with six per cent interest. It was provided that should this collateral note be paid on or before its maturity, “proceeds thereof shall be applied to the last maturing installments of said balance.”

It was also stipulated that should the vendees, Coci and D’Antoni, decide within six months to borrow from a building and loan association a sum not to exceed $5,000 for the purpose of erecting a building on the property and doing certain landscaping, Johness, Inc., would agree to subordinate its mortgage to such mortgage as might be executed in favor of the building and loan association, and that in that event the monthly installments would be reduced by such monthly sum as it might be necessary for Coci and D’Antoni to pay to the building and loan association.

There is an additional stipulation relative to acceleration of payments of the monthly installments required on the main obligation. This provision reads as follows:

“It is also understood that we shall have the right to make additional payments in excess of the monthly installment of $100.-00 provided herein, such additional payments are to be applied to the last maturing installments. In other words, these payments are to be applied in inverse order.”

The final stipulation provides that title to all of the property, both that to be purchased by plaintiffs and that to be collaterally mortgaged to secure the balance, would be “subject to approval of the Lawyers’ Title Guaranty Company” at the expense of Coci and D’Antoni.

It is very clear that although the agreement provides that the act of sale would be executed on or before April 10, 1940, neither the vendor nor the vendees really made any effort to carry out this provision of the contract. We say this because, although counsel for the vendees maintains that the record shows that the vendor was notified that the vendees would be ready to take title on the date specified, April 10, 1940, there is no dispute over the fact that the vendees did not even request the title company to examine the title until April 15, 1940, which was five days after the last day fixed in the contract for transfer of title. So much for any effort of the vendees to take title within the time specified.

As to the vendor, there is no contention that any effort was made to force the vendees to accept title within the time limit set in the contract. We, therefore, disregard entirely the assertion that on that day, April 10, 1940, the vendees were ready, willing and able to accept title and that, therefore, the vendor on that day was in default and should be considered as having defaulted on the contract. We mention at this time an interesting fact which, however, we consider of no importance in view of the ultimate conclusions to which we have come and that fact is, that on July 13, 1940, the lots which were to be collaterally mortgaged as additional security up to the sum of $1,000 were sold by one of the vendees who was the real though not the record owner of such lots and that, therefore, after that time it was no longer possible for those lots to be mortgaged as collateral security for the principal obligation.

When the Title Company completed its examination, it reported on April 24, 1940, that “the depths of lots 1 and 2 do not check with the plan.” This is conceded to mean that those two lots contained a depth of 35 feet less than they should have contained according to the plans which all parties had in mind when the sale was made. When this came to light, there was apparently a discussion as to what should be done, and the attorney for the vendees agreed that he would undertake the necessary curative work and bring the necessary proceedings to obtain a judgment correcting the description of those two lots so as to have them include this additional 35 feet of depth and that he would make no charge for his services if the vendor would pay the court costs of that proceeding. This offer was accepted and the vendor paid the costs shortly after July 13, 1940, which was the day on which counsel for vendees advised the vendor as to what those costs had been.

However, when the 35 foot strip which formed the rear portion of those two lots was included in the title and the necessary certificates were obtained, it then appeared that against that strip there was recorded a mortgage in favor of the Reconstruction Finance Corporation, and of course, the vendees were still unwilling to accept title until that encumbrance could be erased from the records. Accordingly, it was agreed between counsel that if counsel for the vendees would prepare the release which he desired the Reconstruction Finance Corporation to execute, counsel for vendor would undertake to have the release executed and to have the recordation of the encumbrance erased. On July 24, 1940, counsel for the vendees wrote a letter to Johness, Inc., the vendor, in which he enclosed “a draft of release” which he desired Johness, Inc., to obtain from the Reconstruction Finance Corporation. In that letter he stated that he understood that “this whole matter will have to be forwarded to Washington for approval, then returned to New Orleans and be signed by an agent for the corporation.” Five days after writing that letter, counsel for the vendees, plaintiffs in this litigation, wrote another letter dated July 29, 1940, to Johness, Inc., and in that letter sought to put Johness, Inc., in default and demanded that Johness, Inc., pay over to the vendees, double the amount of the deposit. We do not find that letter nor a copy thereof in the record, but counsel agree as to its date and contents.

Nothing was done as a result of that letter for, as a matter of fact, the necessary release from Reconstruction Finance Corporation was not obtained until nearly eight months later. When the release was obtained from Reconstruction Finance Corporation in March, 1941, counsel for the vendor, Johness, Inc., on March 27, 1941, addressed a letter to the attorney for the vendees stating that the release had been obtained, that the title was now cleared, and that unless the vendees “signify their willingness to take title to the property within three days from the date of this letter, we should be constrained to consider them in default and accordingly the deposit made on account of the purchase price concurrently with the execution of the agreement of purchase, will be forfeited.” This suit followed, though it was not filed until June 6, 1942.

As we have already stated, it is very evident that the vendor was not put in default on April 10, 1940, for on that day the vendees were entirely unwilling to accept title and, in truth, several days later entered into a verbal agreement for the purpose of curing defects in the title. Surely their action in making this agreement prevents their now contending that there was a default on April 10th as a result of which they are entitled to the return of double the amount of the deposit. Nor can they point to the letter of July 29, 1940, as having had the effect of putting the vendor in default, because only five days before they had agreed to wait until the necessary release could be obtained from the Reconstruction Finance Corporation, and had shown that they realized that the matter must be subjected to the delays which always occur where governmental red tape is involved, for they had said that they knew that it must be forwarded to Washington and then returned to New Orleans. They cannot be heard to contend that only five days after they ■had asked that the release be sent to Washington for execution they were justified in changing their position and in contending that they could, on that day, July 29, 1940, put the vendor in default, and that as a result they may now demand that they be paid double the amount of their deposit.

We do not find it necessary to determine whether or not the vendees could have been required to wait indefinitely for the clearing of the title. When it was found that the title was defective, first because the description was obviously faulty, possibly they could then have rejected the title and put the vendor in default. They did not do so. After the correction in description had been made and it was found that a mortgage bore against part of the property, it may be that they could have refused to accept the title and possibly they could then, by putting the vendor in default, have claimed double the amount of the deposit. But again they did not choose to do this and instead agreed that the additional curative work which was necessary would be undertaken. They could not then immediately change their attitude and claim a default until after the lapse of a reasonable time. But thereafter they made no effort to put the vendor in default and cannot now be heard to claim that there was a default on April 10, 1940, or that there was default on July 29, 1940.

While no authorities on this point have been submitted and probably none are necessary, we find that in several cases it has been held that where, after the •expiration of the time limit set in a contract to sell real estate, the parties have voluntarily agreed expressly or by implication that the time limit will be extended in order that title curative work may be done, or for some other reason, or where it is obvious that such a delay has been acquiesced in, no longer may there be claimed a default based on the failure to take title within the time limit originally fixed.

In Lamar v. Young, 211 La. 837, 30 So.2d 853, the Supreme Court considered such a situation. There, after the expiration of the time set in the contract for .the taking of title, there were conversations between the parties and their respective brokers concerning the necessity for obtaining a survey and also concerning title .to the property. The Court held that .these conversations indicated that the parties did not intend to rely upon the original time limit set in the contract.

In Johnson v. Shreveport Properties, Inc., et al., 213 La. 485, 35 So.2d 25, 26, the Supreme Court held that where parties indicate, by their actions, that a time limit set in a contract is not to be insisted upon there is a waiver of the right to demand compliance within that time limit. The court said:

“If time were of the essence of the contract under consideration the argument thus made might be effective. But the pleadings, which are being assailed, together with the annexed documents, do not show that to be true. In fact, incidentally, on the trial of the case it was clearly and definitely disclosed that the fifteen day period stipulated for the consummation of the sale was of no importance and further that it had been waived by the parties.” ■

In Bonfield v. Tichenor, La.App., 189 So. 635, 637, we quoted from Abeles & Co. v. Robinson-Slagle Lumber Co., 6 La.App. 447, as follows:

“If the promissor has made default in performance, with respect to the time thereof, and the promisee subsequently permits or urges him to continue performance, or accepts performance thereafter, or accepts payments made in performance, or otherwise treats such contract as still in force, such breach is waived.”

See, also, Dewenter v. Mott, La.App., 27 So.2d 444.

Plaintiffs then are obviously not entitled to the return of double the amount of the deposit.

We come then to the question of whether or not the defendant was within its right in attempting to put the plaintiffs in default and whether it, the defendant, is justified in retaining the deposit. This right is claimed on three grounds: First, the vendor contends that the vendees had no right to object to the fact that a portion of the property which they intended to buy was not included in the description, for the reason that in the contract, although the property sold was referred to as certain numbered lots, the description, such as it was, contained the additional printed words, “or as per title”; second, defendant asserts that there was no necessity that the vendees be put in default for the reason that they made it impossible to carry out the contract when the two lots of ground which, under the contract, were to be mortgaged to secure the collateral note for $1,000 were sold; and third, defendant declares that the vendees were formally put in default by the letter which, on March 27, 1941, its attorney wrote to the attorney for the vendees.

As to the first contention of the vendor that the vendees had no right to object to the fact that a substantial portion of the property, which all parties intended should be included in the sale, was not included in the description, cannot be taken seriously by us. The words, “or as per title,” were printed in the form, and under no circumstances could we permit them to be used to deprive the vendees of a very large portion of the property which obviously was intended to be sold. Furthermore, the record shows that as soon as this discrepancy was called to the attention of the vendor, it readily agreed ■that the title should be corrected so as to include this additional property.

In connection with the second contention, it will be remembered that under the terms of the contract, the vendees agreed that as collateral security, they would give to the vendor a note for $1,000 which would be secured by the mortgage of two lots of ground which were not in any way involved in this sale and which were located elsewhere. Those two lots were sold to third persons on July 13, 1940, and it is argued on behalf of the vendor that when they were sold it was no longer possible for them to be mortgaged to secure the collateral note for $1,000 and that, therefore, since the vendees made it impossible that they carry out the terms of the contract, they were automatically in default and there was no necessity that they be put formally in mora. The answer to this contention is clear. The record leaves it beyond question that that mortgage was to be given merely because the vendees could not at that time obtain sufficient cash to make the cash payment which the vendees really wanted, and that it was only agreed that the cash payment would be only $560 because the collateral mortgage could be given on the other property. Under these circumstances, it is very evident that the purpose which was sought to be accomplished by that stipulation could have been fully accomplished by the payment by the vendees of $1,000 out of the sale price of those two lots, as well as by the giving of the collateral mortgage. In other words, had the vendor actually sought to force the vendees to take title and had the vendees then instead of giving the collateral mortgage for $1,000 tendered cash for that amount, the vendor could not have refused to accept this tender. It is argued that the vendor’s special reason for wanting the mortgage instead of the actual cash was a desire that, for income tax or capital gains tax purposes, it should not receive more than ,a certain percentage of the purchase price in that one year. However, the stipulation itself shows that the vendees were given the right to pay this $1,000 at any time prior to or on the date of its maturity and, in fact, were given the right to pay the entire balance of the purchase price of the five lots at any time on or before the day on which the final installment would mature, and it is evident that had the vendees desired to do so, they might have paid the entire purchase price in cash. Having agreed to this, defendant cannot now contend that it insisted on delayed payment in order to make certain that in that one year it would not receive more than a certain percentage of the purchase price.

That the vendees might substitute cash for the collateral note is made evident by the fact that in the contract it was provided that the note might be paid on or before its maturity. If so, then surely there was no need for its actual execution at all. Cash might have been substituted.

As to the acceleration of the installment payments on the principal obligation, we find a stipulation that the vendees would have the right to make “additional payments in excess of the monthly installment of $100.00 provided herein, such additional payments are to be applied to the last maturing installments. In other words, these payments are to be applied in inverse order.” There is no limit placed on the right of the vendees to make such additional payments. Consequently, they might have executed the vendor’s lien note and immediately paid it in full. If so, surely they could have said that instead of executing the note at all, they would pay the entire balance in cash. For these reasons we find no logic whatever in tlie contention that the vendees were automatically in default when, by the sale of the two lots, they made it impossible to execute a collateral note secured by mortgage on those two lots.

Nor do we feel that as a result of the letter of March 27, 1941, the vendor may claim that the vendees were put in default and that therefore the deposit may be retained by the vendor. That letter did not attempt to actually put the vendees formally in default. It merely expressed a warning that they might be put in default if they did not, within three days, signify their willingness to take title. Not only do we not consider that it did not put the vendees in default, but in addition,, we are of the opinion that at that time the vendor had no right to put the vendees in default. There had been an unconscionably long delay in the perfecting of the title, and eight months before that letter was written, on March 27, 1941, the attorney for the vendees had written to the attorney for the vendor asking that the final encumbrance be erased. After that letter was written, the vendees were obligated to wait a reasonable time, but by no stretch of the imagination could they be required to wait so long a time as eight months.

Our conclusion is that neither party had the right under the circumstances shown here to put the other in default, and all parties should be left in the position in which they were before the contract was entered into. Accordingly, the deposit should be returned to the plaintiffs.

The judgment appealed from is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiffs, William S. Coci and Emanuel D’Ant-oni, and against the defendant, Johness, Inc., in the full sum of $560, with interest from judicial demand, each party to pay their or its own costs.

Amended and affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DAUPHINE v. HERBERT et al.
    No. 18999.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.

      Prowell & Viosca and Arthur C. Reuter, all of New Orleans, for plaintiff and appellant.
    Nicholas G. Carbajal, of New Orleans, for defendants and appellees.
   JANVIER, Judge.

Plaintiff claims of defendants damages in the sum of $285, alleging that, with malice and without probable cause, -they reported to the coroner of the Parish of Orleans that plaintiff was insane and should be committed to an institution, and that one of them signed the “commitment book” in the coroner’s office and thus instituted the proceeding, as a result of which plaintiff was “arrested, imprisoned, battered, assaulted, defamed, embarrassed, humiliated,” and because of which plaintiff also sustained “loss of wages, time, face, prestige, and health.” Plaintiff also alleges that she was taken from her home by police and was imprisoned in the City Hospital for Mental Diseases from 9:30 A.M. on January 2, 1948, until 2:45 P.M. on January 7, 1948; that during that time “she was stuck with needles, had her hair clipped and was confined to the premises.”

Defendant filed answer which we construe to be a general denial, but in answer to the special charge that their actions had resulted from malice and that they had no probable cause for having her committed, defendants averred that those allegations were irrelevant and immaterial.

The case was tried in the First City Court of the City of New Orleans and there was judgment dismissing plaintiff’s suit. The matter is now before us on 'appeal.

The facts surrounding the initiation of the commitment proceeding are not seriously in dispute or are overwhelmingly shown by the evidence.

Plaintiff is a Negro woman forty years of age and is an aunt of the defendant, Arnold Herbert. Alice Herbert, the other defendant, is the wife of Arnold Herbert. For reasons which we shall hereafter discuss, defendants reported to the coroner that in their opinion plaintiff was of unsound mind, was hearing voices, was beating on the walls of her dwelling, and commiting other unusual acts which indicated that she should be committed to an institution. The coroner explained that someone had to sign the “commitment book” as his authority for having plaintiff brought in, committed and confined for examination. Thereupon Arnold Herbert signed the book, and as a result, plaintiff was arrested by police and committed for examination as alleged.

During the five days she spent in confinement, she was subjected to various experiences, no doubt necessary in the examination, but which were undoubtedly painful and humiliating to any person of sound mind. After the completion of the examination, the coroner reported that plaintiff was not insane and she was discharged from custody. This suit has resulted.

We have no doubt that no liability results where a person, especially a relative, in good faith, that is to say, without malice and with probable cause, reports to the coroner or other proper officer that it appears that someone is of unsound mind and if left at large will be a menace to him or herself or to others.

We have also no doubt, on the other hand, that where there is no probable cause to believe that such a course is necessary and the action results from malice, the person making the report is responsible for the commitment, the humiliation and the embarrassment, and that there may be recovery from such person.

We have found no cases in Louisiana in which a claim for damages has been based on a malicious commitment for insanity or mental examination, but it seems to be well settled elsewhere that even though a proceeding on which a suit for damages is based is, by nature, civil rather than criminal, nevertheless a suit for damages may be based thereon.

In Vol. 54, Corpus Juris Secundum, Malicious Prosecution, § 11, subsec. c, page 962, it is stated that

“civil proceedings * * * may be the basis of an action for malicious prosecution.”

Note the following:

“ * * * The rule has been applied also to contempt proceedings; to inquisitions of lunacy; * *

In Pickles v. Anton, 49 N.D. 47, 189 N.W. 684, the Supreme Court of North Dakota, according to the syllabus held:

“An action will lie in this state for the malicious prosecution, without probable cause, of a proceeding the object of which is to have a person adjudged insane and committed to the state insane asylum.”

In Brandt v. Brandt, 297 Ill.App. 306, 17 N.E.2d 535, 537, the Appellate Court of Illinois, First District, held that:

“Maliciously filing a complaint charging a person with being of unsound mind, upon which such person is arrested and restrained of his liberty constitutes an action for malicious prosecution.”

The Court in that case cited Pickles v. Anton, supra, and Lindsay v. Woods, Tex. Civ.App., 27 S.W.2d 263.

In Straka v. Voyles, 69 Utah 123, 252 P. 677, damages were awarded for malicious prosecution where lunacy proceedings were instituted against the plaintiff without probable cause.

While, as we have already said, no Louisiana case based on a proceeding of this kind has been cited -by counsel or discovered by us, we feel certain that if, as a result of any such proceeding, whether it be criminal or civil, a person is deprived of liberty and is subjected to embarrassment and humiliation, a suit for damages may be based thereon.

We conclude that the only question to be considered is whether or not the defendants here were justified in initiating the proceedings which resulted in the commitment of plaintiff and in the suffering, humiliation and embarrassment which ensued, and we have no doubt that the burden rests upon the plaintiff to prove that defendants acted without probable cause and with malice.

The rule concerning the burden of proof in such cases is stated as follows by the Supreme Court in Eumont v. Railway Express Agency, 213 La. 1040, 36 So.2d 30, 31.

“ * * * The jurisprudence in these cases is firmly established and it has been many times stated and reiterated that an action for malicious prosecution will not lie unless there is a concurrence of the presence of malice and the absence of probable cause. In the recent case of Eusant v. Unify Industrial Life Ins., etc., Ass’n, 195 La. 347, 196 So. 554, 556, we said: 'This court in the early case of Barton v. Kavanaugh, 12 La.Ann. 332, held that the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution. Both must concur. This rule of law has never been deviated from, the latest expression to that effect being found in the case of Urbanek v. Moore, 179 La. 300, 154 So. 4. See, also, Womack v. Fudikar, 47 La.Ann. 33, 16 So. 645; Mosley v. Yearwood, 48 La.Ann. 334, 19 So. 274; Lang v. De Luca, 108 La. 304, 32 So. 329; Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572; Graham v. Interstate Electric Co., 170 La. 392, 127 So. 879.’
“Probable cause does not depend upon the actual state of the case in point of fact, ‘but upon the honest and reasonable belief of the party prosecuting’, Sandoz v. Veazie, 106 La. 202, 30 So. 767, 773, and the burden is on plaintiff to prove want of probable cause for the prosecution. Graham v. Interstate Electric Co., supra.”

It seems to us that the judge a quo labored under a' misunderstanding of some kind as to 'the issue which was presented. At several points in the record it appears that he interrupted the taking of testimony to remark that all the parties are related to one another and that they are all colored, and after it appeared that they were all related and were all colored, he said:

“ * * * these are colored people, and it’s a question of whether it belongs in this court or not.”

The evidence leaves us without the slightest doubt that the defendants acted with malice and that they had no real reason to believe that the plaintiff should be committed.

The record shows that the plaintiff and the defendants lived in a double house, which they rented from a white landladjq and that thi9 landlady had been attempting to eject the defendants 'because of constant nuisances and disturbances resulting from troubles between the defendants and plaintiff. One of these ejectment proceedings was docketed for trial in this court and was to be heard on appeal “de novo” shortly after these commitment proceedings were commenced, and the record leaves us with the belief that the purpose of defendants in commencing these proceedings was to make certain that the plaintiff could not testify in that case. These and other facts, which appear in the record, leave us with the conclusion already announced that defendants acted with malice and had no probable cause for believing that plaintiff should be committed.

In a case of this kind it is most difficult to place a money value upon the loss, suffering, humiliation and embarrassment sustained by a plaintiff. We must take into consideration the social status of the parties who are involved. With a full appreciation of the provision in our Declaration of Independence that “all men are created equal,” we say this because there can be no doubt that what may cause tremendous embarrassment and humiliation in one case may be almost entirely overlooked in another.

We have given consideration to several cases in which awards have been made for humiliation and embarrassment caused by malicious prosecution or false imprisonment. In Sargent v. Polar Bar Ice Cream Co., Inc., La.App. 196 So. 541, we allowed only $150, but there the plaintiff was arrested without any unusual noise or disturbance, and there was no crowd congregated. In fact, plaintiff was permitted to complete the sales which he was negotiating with two customers. He was put into a cell for an hour and a half and then transferred to another precinct station where he was not put info a cell, and where he remained only about fifteen or twenty minutes before making bond and being released.

In Barrios v. Yoars, La.App., 184 So. 212, there were no aggravating circumstances and no actual incarceration, and $200 was allowed. In Buchert v. Schumacher, 166 La. 111, 116 So. 718, $200 was allowed, but there was never any actual arrest. In Campbell v. Deville, 163 La. 575, 112 So. 491, only $100 was allowed, but there was only a constructive arrest. The plaintiff was never taken into custody. In Hunter v. Laurent, 158 La. 874, 104 So. 747, only $200 was allowed, but it was shown that the plaintiff was not arrested by police. He heard that a warrant had been issued for his arrest and he voluntarily surrendered and remained in custody from eight to ten hours when he was released on bond.

Taking these awards into consideration and bearing in mind that here plaintiff was confined in the hospital for five days and was required to submit to more or less painful operations which were necessary in the examination, we think that the amount asked by plaintiff ($285) is not excessive.

The judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of plaintiff and against defendants solidarily in the full sum of $285, with legal interest from judicial demand, and for all costs.

Reversed.


author: PER CURIAM.

text:
    ERIE v. PRIMOS.
    No. 19172.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.

      J. L. Warren Woodville, of New Orleans, for plaintiff-appellee.
    George Sladovich, Jr., of New Orleans, for defendant-appellant.
   PER CURIAM.

Appellee moves to dismiss this appeal for the reason that the judgment was signed after the appeal was applied for and granted. In support of the motion for dismissal counsel cites a number of authorities (and there are many others) holding that no appeal lies from an unsigned judgment, for in such case the judgment is inchoate and the appeal would be premature.

The judgment was rendered on November 12, 1948, and on November IS appellant moved for and obtained a suspensive appeal returnable to this court on November 25. The judgment, which is included in the transcript, was not signed until November 18.

In the cases cited by appellee, no signed judgment was contained in the record at the time of its lodgment in the appellate court. If an unsigned judgment* appeared in the instant record, we would be constrained to follow these cases and dismiss the appeal, for the absence of the signed judgment would be fatal to the appeal.

However, an appeal from a judgment which is not signed until after the appeal is taken, but which is signed before the transcript is returnable to the appellate court, and which actually appears in the transcript, is not subject to dismissal because of the appellant’s premature action in appealing from the unsigned judgment. The fact that the judgment was signed, plus the fact that it appears in the record before us as a final decree, has the effect of curing the prematurity of the application for and the order of appeal, and the most that can be said is that by applying for the appeal before the judgment was signed, appellant abandoned the right accorded him by law to apply for a new trial. See Mossier Acceptance Co. v. Moliere, La.App., 181 So. 228, and authorities therein cited.

The motion to dismiss is denied.

Motion denied.


author: PONDER, Justice.

text:
    214 La. 374
    STATE v. THOMAS.
    No. 38996.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    C. A. Byrne, of New Orleans, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Herve Raci-vitch, Dist. Atty., and Girard J. Fernandez, Asst. Dist. Atty., both of New Orleans, for appellee.
   PONDER, Justice.

The defendant was convicted of the crime of simple burglary and sentenced to serve a term of two years in the Penitentiary. He has appealed from the conviction and sentence.

The defendant was charged in a bill of information with, having “committed simple burglary of the building and structure No. 2425 Louisiana Avenue belonging to the Flint Goodrich Hospital of Dillard University, etc.”

When the case was called for trial and after the first witness had testified in part, the trial court permitted the State to amend the bill of information to read, “committed simple burglary of the building and structure being the nurses’ home of the Flint Goodrich Hospital of Dillard University at 2425 Louisiana Avenue, etc.” Counsel for the defendant objected to the amendment of the bill of information and moved the trial court to discharge the jury and continue the trial. The objection was overruled and a bill of exception reserved. Counsel for the defendant reurges the objection to the amendment of the bill of information and the forcing of the defendant to trial in a motion for a new trial.

Counsel takes the position that the amendment was made to the substance of the bill of information and that it was the mandatory duty of the trial court to grant a continuance under the provisions of Article 253 of the Criminal Code of Procedure. He contends that the accused was not informed of the nature and cause of the accusation set forth in the amended bill of information before trial in violation of Article 1, Section 10 of the Constitution of this State. The contention is based on the ground that the nurses’ home of the hospital is a separate and distinct building from the - main building of the hospital located at 2425 Louisiana Avenue.

The evidence taken in connection with the bill of exception shows that the nurses’ home is located behind the main hospital building on the same plot of ground and separated from it by a walk. The original bill of information charged the defendant with the burglary of the building and structure No. 2425 Louisiana Avenue belonging to the hospital. The amendment to the bill of information merely sets forth with more particularity the building burglarized.

Describing the building more particularly does not change the substance of the bill of information. Under the provisions of Articles 253 and 364 of the Code of Criminal Procedure, a defendant is not entitled to a discharge of the jury and a continuance unless a review of the entire proceedings disclosed that the defendant had been mislead or prejudiced in his defense. The defendant could not in' this case have been mislead or prejudiced by an amendment more fully describing the building burglarized.

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


text:
    214 La. 377
    Succession of BROWN. Opposition of DAVIDSON et al.
    No. 38652.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Claude L. Johnson, of New Orleans, for appellant.
    Ellender & Wright, of Houma, for ap-pellee.
   PONDER, Justice.

Mrs. Eva Brown, widow of Albion F. Davidson died intestate on February 26, 1947 at Houma in the Parish of Terre-bonne. She was survived by five children and seven grandchildren, issue of two predeceased children. Mrs. Ethelwyn Davidson Johnson, wife of Claude L. Johnson, applied to the district court to be appointed administratrix of her mother’s succession, alleging that she was a beneficiary heir, and asked for an inventory and appraisement of the estate. Co-heirs, representing 5/7 interest in the estate, opposed her appointment as administratrix and petitioned the court to appoint Norman L. Davidson, a son of the decedent, administrator. On trial the lower court sustainéd the opposition rejecting Mrs. Johnson’s application to be appointed administratrix and appointed Norman L. Davidson administrator of the estate. Mrs. Johnson has appealed. After the appeal was lodged in this Court, counsel for the appellant interposed exceptions of no cause and no right of action leveled at the opposition and petition for the appointment of Norman L. Davidson as administrator.

Counsel for the appellant contends that the appointment of an administrator for the succession is governed by the articles of the Revised Civil Code dealing with the appointment of a curator for a vacant succession and that the opposition and petition for the appointment of Norman L. Davidson as administrator, having been predicated on the articles of the Civil Code governing the appointment of a beneficiary heir as administrator, does not set forth a cause or right of action.

Counsel takes the position that the appellant having presented the first application the judge was required under Article 1124, Revised Civil Code to appoint her admin-istratrix of the succession. He cites several decisions of this Court dealing with the application of creditors, in a class having equal rights, to be appointed curators of vacant successions and contends that these authorities are applicable in the present case because the heirs have not accepted the succession simply or with benefit of inventory.

We are not presented with a vacant succession in this case or one where the heirs are absent and not represented in the State. Consequently Article 1113, R. C.C. does not apply. A vacant succession is a succession which no one claims or one where the heirs are unknown or one where the known heirs have renounced it. Article 1095, Revised Civil Code. In the present case most of the heirs reside in the State and the absent heirs are represented by counsel.

Under the provisions of Articles 940 and 941, Revised Civil Code forced heirs acquire a succession by operation of law at the death of the person they succeed. Their rights are held in suspension until they accept or reject the succession. Article 946, Revised Civil Code. The acceptance with benefit of inventory is governed by Article 1032, Revised Civil Code. The appointment of an administrator for the succession is governed by Article 1033, Revised Civil Code, which requires the judge to select one or two of the beneficiary heirs that he shall consider most solid for the administration of the succession because there are more than two beneficiary heirs of age who are present in the State. The term “beneficiary heir” applies to those who may accept the succession as well as those who have accepted. The term embraces not only the heir who has accepted with benefit of inventory but those who may accept with benefit of inventory. Succession of Sloane, 12 La.Ann. 610; Succession of Gusman, 36 La,Ann, 299.

Counsel for the appellant contends that the lower 'court erred in appointing the administrator after it had been proved that he owed various debts which had not been paid and a debt to one of the heirs that might prevent a proper accounting from such heir for the manner in which he handled the decedent’s estate for many years prior to her death. There is testimony that the administrator is an experienced business man and his appointment is favored by most of the heirs. The appellant admits that she is a housewife and has had very little business experience. She lives out of the State and would have to rely to a great extent on her husband to attend to the affairs of administration.

The appointment of administrators ■as between beneficiary heirs to a succession rests largely in the discretion of the trial judge and his selection of an administrator will not be disturbed except where there is an abuse of discretion in making the selection. Article 1043, Revised Civil Code; Succession of Guate, 161 La. 981, 109 So. 784; Succession of Kneipp, 172 La. 411, 134 So. 376.

Under the circumstances in this case, we are in no position to state that the trial judge has abused his discretion in the selection of the administrator.

For the reasons assigned, the exceptions are overruled and the judgment is affirmed at appellant’s costs.


author: HAWTHORNE, Justice.

text:
    214 La. 383
    KEMPER et al. v. ATCHAFALAYA BASIN LEVEE DIST.
    No. 38644.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rene H. Plimel, of Franklin, for plaintiffs and appellants.
    Ferd C. Claiborne, Dist. Atty., of New Roads, and Charles IT. Dameron, Asst. Dist. Atty., of Baton Rouge, for appellee.
   HAWTHORNE, Justice.

This suit is for the purpose of having adjudicated by the court title to the SWj4 of Section 6, Township 15 South, Range 12 East, situated in St. Martin Parish, Louisiana, containing 160 acres more or less, this action being known as one to establish title to real estate under Act 38 of 1908.

Judgment was rendered in the district court in favor of defendant, the Atchafal-aya Basin Levee District, recognizing it to be the owner of the land, the title to which is in controversy, and dismissing plaintiffs’ suit at their costs. Plaintiffs have appealed.

The pertinent facts, which are not disputed, disclose that the property, title to which is here in controversy, was selected by the State of Louisiana under the Swamp Land Act, 43 U.S.C.A. § 982 et seq., which selection was approved by the Federal government, as disclosed by List No. 76. The State of Louisiana' then conveyed the property to Thomas Vining under date of September 7, 1858, and in due course issued its patent to this vendee. Vining transferred the property by authentic act dated December 16, 1859, to James Todd. The property was adjudicated to the State of Louisiana on May 28, 1910, in the name of Thomas Vining for delinquent taxes for the year 1909. On November 11, 1911, the property was formally transferred by the State of Louisiana to the Atchafalaya Basin Levee District. The Register of the State Land Office on May 16, 1936, issued a certificate of redemption of the property which had been adjudicated to the State for the 1909 taxes in the name of Thomas Vining, this certificate being purportedly issued under the authority of Act 161 of 1934, as amended by Act 14 of the Fourth Extra Session of 1935. All of these conveyances were duly filed and recorded in the conveyance records of the Parish of St. Martin.

Plaintiffs-appellants, asserting themselves to be the sole heirs, legatees, and assigns of James Todd, claim title by virtue of the certificate of redemption dated May 16, 1936, as specifically ratified, validated, and confirmed by Act 256 of 1940. The defendant-appellee, Atchafalaya Basin Levee District, claims title by virtue of the adjudication to the State of Louisiana in the name of Thomas Vining for the unpaid taxes for the year 1909 and the transfer from the State to it on November 11, 1911, under the provisions of Act 97 of 1890, the act creating the Atchafalaya Basin Levee District.

The validity of the tax adjudication to the State and of its subsequent conveyance to the appellee herein is not raised in this suit, nor is the legality of either conveyance at issue herein, the sole question for our decision being the legal effect of Act 256 of 1940 as applied to the facts in the case.

The pertinent part of Act 256 of 194Ó is as follows:

“ * * * That all certificates of redemption of property issued by the State Land Office under Acts 161 of 1934, 14 of the Fourth Extra Session of 1935, 183 of 1936, and 47 of 1938, and the cancellation of taxes made by authority thereof, are hereby ratified, validated and confirmed unless attacked within six months from the passage of this Act. * * * ”

This court in State ex rel. Hodge et al. v. Grace et al., 191 La. 15, 184 So. 527, held that property adjudicated to the State and by it subsequently transferred by act duly recorded to the Pontchartrain Levee District was not subject to redemption under Act 161 of 1934, as amended, the same act under which the certificate of redemption in the present case was purportedly issued. Appellants concede, as they must, that under the holding of the Grace case they had no right of redemption of these lands under the provisions of Act 161 of 1934, and that their certificate was invalid when issued. They contend, however, that the decision of this court in the Grace case brought about the enactment o.f Act 256 of 1940, and that the 1940 act had the effect ■of specifically ratifying, validating, and confirming their certificate of redemption.

Regardless of the fact that, at the time the certificate of redemption was issued, title had been vested in the levee district for approximately 25 years under the transfer to it by the State, appellants argue and contend that Act 256 of 1940 vested title in them and legalized and validated the invalid issuance by the Register of the State Land Office to them of the certificate of redemption, and that the 1940 statute perfected and clarified a possible defect in their title since, the certificate had not been attacked within six months from the passage of the act.

The property was conveyed to the Atchafalaya Basin Levee District on November 11, 1911, under the authority of Act 97 of 1890, by act of conveyance, the validity of which is not under attack here, and which was proper and legal in form, signed by the Register of the State Land Office and the State Auditor and duly recorded in the records of the Parish of St. Martin on November 17, 1911, many years prior to the act of redemption under which appellants claim as the heirs, legatees, and assigns of James Todd.- It therefore follows that the levee -board has a superior title to that of plaintiffs unless the plaintiffs’ contention is correct that it was the intention of the Legislature in Act 256 of 1940 to divest the title of the levee board previously obtained and to vest title in plaintiffs herein; for the plaintiffs must show conclusively that title is in , them, since this is an action to establish title to real estate under the authority of Act 38 of 1908. Even if we concede that the lands intended to be conveyed by the statute creating the levee district remained under the control of the Legislature, and that that body retained the power to set aside and revoke such conveyances, the question here presented then remains the same — that is, whether it was the intention of the Legislature by enacting Act 256 of 1940 to divest the levee board of its title and to vest title in these appellants.

As has been observed by this court, our jurisprudence shows that both the judicial and the legislative branches of our government have stressed the importance of carefully dealing with the lands granted by the State to the levee boards under the provisions of the various acts making such grants, so that they were not lightly to be considered as revoked or repealed by the Legislature. See State ex rel. Hodge et al. v. Grace et al., supra.

With this admonition in mind, it is only proper for this court to examine carefully the provisions of Act 256 of 1940 in order to ascertain whether it was .the clear intention of the Legislature to divest the levee board of title under the facts of the instant case, and, in the absence of such intention clearly expressed or evidenced therein, this court should find that the Legislature had no such intention.

A reading of the act itself, which had for its purpose the validation, ratification, and confirmation of certificates of redemption of property issued by the State Land Office under the authority of the acts of the Legislature permitting such certificates, shows conclusively that it was not the Legislature’s intention by adopting the act to divest the levee board of its absolutely vested title to the .property in question, granted to it by an act of the Legislature and subsequently conveyed to it by the State by proper, recorded instruments of conveyance, signed by the Register of the State Land Office and the State Auditor and duly recorded in the conveyance records of the parish in which the lands lie. If such 'had been the intention, it would have been a very simple matter for the Legislature to have used appropriate language showing such intention.

For reversal of the judgment of the lower court, counsel for appellants relies principally on the case of Atchafalaya Land Co. v. F. B. Williams Cypress Co. et al. (Board of Com'rs of Atchafalaya Basin Levee Dist. et al., Interveners), 146 La. 1047, 84 So. 351, and contends that it is decisive of the issue presented here.

Act 97 of 1890 creating the Atchafal-aya Basin Levee District provided that all lands then belonging or that might thereafter belong to the State within the limits of the district were thereby granted to the board of commissioners of the district. The act also provided that all former owners of land which had been forfeited to the State for non-payment of taxes might redeem their land at any time within six months after the passage of the act by paying taxes, interest, costs, etc., but that after the expiration of six months it was the duty of .the State Auditor and the Register of the State Land Office to convey in the name of the State to the levee board by proper instruments of conveyance the lands granted or intended to be granted by the act, whenever from time to time the auditor and the register of the land office, or either of them, should he requested to do so by the board of commissioners or the president thereof.

The act was approved July 8, 1890, and within six months thereafter the State patented certain land in the district to the partnership of Pharr & Williams. The levee board never made any request for an instrument of conveyance respecting that property, as provided by the act, and no such instrument was ever issued.

In 1912 the Legislature adopted Act 62 of that year, which provided, among other things, that all suits to annul patents previously issued should be brought within six years from the passage of the act.

In the Williams case the suit to annul the land .patents to Pharr & Williams was instituted six years and nearly 10 months after the passage of this statute, which was pleaded by the defendants in defense of plaintiff’s action. This court came to the conclusion that defendants’ plea of prescription was well founded and consequently sustained it.

In the case of Atchafalaya Land Co., Ltd., v. Dibert, Stark & Brown Cypress Co., Ltd., et al., 157 La. 689, 102 So. 871, the same issues were presented to this court which had been previously disposed of in the Williams case. The Dibert case, like the Williams case, was an action for the purpose of annulling certain .patents to state lands, and in that case, as in the Williams case, no instrument of conveyance of the lands in contest was ever issued to the levee board. A plea of prescription of six years, based upon Act 62 of 1912, was presented, and, due to the magnitude of interests involved, this court reviewed the decision previously rendered in the Williams case, and concluded that that case had been correctly decided.

In the course of our opinion in the Dibert case this court had this to say [157 La. 689, 102 So. 873] :

“We have therefore no hesitation in holding that, unless Act No. 97 of 1890, p. 107, was an absolute grant of the lands, in praesenti to the levee board, the action of that board to annul a grant thereof to-another is prescribed under the aforesaid Act 62 of 1912.
******
“ The very fact that the register of the land office thought he had a right to sell the lands and issue patents therefor to purchasers acting in good faith, is a very strong reason why some statute of repose should be passed on that subject; and the fact that the levee boards and their assigns should deem it necessary to bring such actions, and that this court should seriously pass upon them, is very eloquent of the fact that some rights adverse to the levee boards and their assigns might result from the issuance of such patents. The Act of 1912 seems to have been passed for the express purpose of fixing the time within which such rights (whatever they might be) should be contested.
“The question therefore ultimately resolves itself into this, was the grant to the levee boards under Act 97 of 1890 a grant of the lands in praesenti or a mere grant óf the right to acquire the lands by a conveyance from the proper state officers.”

The court, after reviewing the jurisprudence, pointed out that the grant to the levee board under Act 97 of 1890 was not one in praesenti; that title to the lands did not vest in the levee board until a conveyance had been executed by the proper state officers and duly recorded in the parish records, and that for this reason the statute of repose, Act 62 of 1912, was applicable.

In the instant case, the lands in controversy not only were granted to the levee district under the provisions of Act 97 of 1890 but were thereafter formally conveyed to the levee district by the State. For this reason, if for no other, the case relied on by appellants is not controlling here.

We conclude, therefore, that by the certificate of redemption issued in 1936 covering the lands here in controversy appellants acquired no title to the lands described in such certificate for the reason that the title to the lands had already passed out of the State and was vested at that time in the levee board, -and that the act of 1940 did not operate under the facts of this case to divest the levee board of title.

The final decision in the case of State ex rel. Hodge et al. v. Grace et al., supra, was rendered by this court on October 31, 1938, and the Legislature at its next regular session, being that 'of 1940, adopted Act 256 of that year. Appellants argue that the Legislature in adopting this act made its intention clear that the purpose of the act was to ratify and validate all such certificates of redemption without restriction or exception whatsoever. Even if true, we do not think that this by any means is conclusive of the fact that it was also the intention of the Legislature to divest the levee board of its legal title and to vest title in appellants, in the absence of clear and express language showing this intention.

For the reasons assigned, the judgment appealed from is affirmed; appellants to pay all costs.

O’NIELL, C. J., dissents.

HAMITER, J., does not take part.


text:
    214 La. 394
    STIER v. PRICE.
    No. 38712.
    Supreme Court of Louisiana.
    Nov. 8, 1948.

      Walter B. Plamlin and Edward A. Gen-erelly, both of New Orleans, for plaintiff and appellant.
    Oliver P. Schulingkamp, of New Orleans, curator ad hoc, for defendant and appellee.
   HAWTHORNE, Justice.

Plaintiff, Madeleine Stier, instituted this suit praying that her marriage to defendant, 'Charles E. Price, be decreed null, void, and of no effect. To her petition the attorney at law appointed curator ad hoc for the defendant husband filed an exception of no cause or right of action. The exception was sustained, and plaintiff’s suit dismissed. From this judgment she has appealed to this court.

In her petition plaintiff alleges that she was married to defendant, Charles E. Price, on November 12, 1935, on which date she was wholly unaware that any impediment existed to her being united in lawful wedlock with the defendant; that her consent to the marriage was not free for the reason that she never would have consented to the marriage had she known that her husband was at the time insane and incapable of managing his own affairs and suffering from dementia praecox, simple type; further, that her huiband was, due to his mental condition, incapable of giving his free consent to the contract of marriage.

She further alleges that her husband has been suffering from dementia praecox, simple type, and incapable of managing his own affairs since October, 1929; that he was on four -occasions admitted to the East Louisiana State Hospital at Jackson, Louisiana, for the first time on October 28, 1929, and also on three occasions after this date (two of which were during the marriage) ; that on each occasion his disability was diagnosed by the medical staff of that institution as dementia praecox, simple type, and that at the time this suit was instituted he was an inmate of that institution although he has never been'formally and legally interdicted.

Plaintiff instituted this suit for the annulment of her marriage on May 8, 1947, almost 12 years after its celebration. The petition does not contain any allegation showing when plaintiff first ascertained the mental condition of her husband, nor does it allege that she has not freely and without constraint lived and cohabited with her husband after discovering his mental condition.

Plaintiff contends (1) that her consent to the marriage was not free for the reason that she would never have consented to it had she known that defendant was, at the time of the marriage, insane and incapable of managing his own affairs and suffering from dementia praecox, simple type, and (2) that her husband was incapable of giving free consent to the contract of marriage. She cites some authorities from our sister states which her counsel argue support her contention, but has not cited to us, nor have we been able to find, any case in our jurisprudence decisive of the question.

In Title IV, Chapter 4, of our Civil Code we find enumerated the specific grounds for the nullity of marriages, and plaintiff must bring herself within the strict provisions thereof in order to prevail in these proceedings.

Article 110 of this chapter provides that marriages celebrated without the free consent of the married persons, or of one of them, can be annulled only upon the application of both parties or of that one whose consent was not free; that, when there has been a mistake in the person, the party laboring' under the mistake can alone impeach the marriage. In Article 111 it is provided that in the cases embraced by the preceding article (110) the application to obtain a sentence annulling the marriage is inadmissible if the married persons have freely and without constraint cohabited together after recovering then-liberty or discovering the mistake.

Appellant contends that she comes within the provisions of Article 110 because her consent was not free since, at the time she contracted her marriage with the defendant, she did not know of his alleged insanity, and, had she known, she would not have consented to the marriage.

For the meaning of “free consent” as expressed in Article 110, we must look to Article 91 of the Civil Code, which provides that no marriage is valid to which the parties have not freely consented. This article further provides that consent is not free:

“1. When given to a ravisher, unless it has been given by the party ravished, after she has been restored to the enjoyment of liberty;
“2. When it is extorted by violence;
“3. When there is a mistake respecting the person whom one of the parties intended to marry.”

Accepting the allegations of plaintiff's petition as true, as we must for the purpose of considering the exception urged herein, we think that she is not entitled to have the marriage annulled because she does not bring herself in this proceeding under any of the grounds or reasons set forth in our Code for the nullity of marriages.

Although she states that her consent was not free for the reason that she would not have consented to the marriage had she known that her husband was at that time insane, nevertheless she willingly and of her own free will and accord consented to the marriage at the time of its celebration, and the “lack of consent” which she now urges is not the “lack of consent” contemplated by the Code.

In the case of Delpit et al. v. Young, 51 La.Ann. 923, 25 So. 547, 550, plaintiff sought to have his marriage annulled on several grounds, one of which was that, in consenting to the marriage, he was deceived and imposed upon and was in error- as to the person whom he was marrying, in that she represented herself, and he believed her, to be a virtuous woman, whereas, as he was informed after the marriage, she had previously had illicit connections with divers persons. We think that what was said in that case is applicable here:

“ * * * we think that, if the general assembly had intended that marriages should be annulled when the one party mistakes the character, the social standing, the pedigree, the acquirements, the pecuniary means, the habits, the temperament, or the religion of the other, or when the one party, after the marriage, discovers ‘redhibi-tory’ vices in the other, some language, beyond the words ‘mistake respecting the person,’ would have been found to express that intention. If the marriage of a woman is to be annulled because she was unchaste before marriage, what is to be done in the case of a man? If the courts are to determine whether the mistake is sufficiently serious, how are they to deal with people who, having united themselves together ‘for better, for worse, in sickness and in health,’ etc., present a case where the one develops hereditary disease, such as consumption or insanity, of the possibility of which the other was ignorant, or becomes confirmed in a pre-existing alcohol or opium habit, of which the other had no knowledge? No such doctrine as that propounded by the learned counsel for the appellant has as yet found a place in our jurisprudence, and the language of our Code interpreted according to familiar canons of construction, does not justify its introduction.”

As to plaintiff’s contention in regard to the lack of consent on the part of the husband, if he did not consent to the marriage due to his mental condition, under the provisions of Article 110 he or his legal representatives are the only persons who can be heard to complain.

We have concluded that the exception of no cause or right of action was well taken and that the judgment of the lower court maintaining it and dismissing plaintiff’s suit was correct on the issues as presented herein — that is, the want of consent on the part of the parties to the marriage.

For the reasons assigned, the judgment appealed from is affirmed; plaintiff-appellant to pay all costs.

MOISE, J., recused.


text:
    214 La. 401
    BIRDWELL v. BIRDWELL.
    No. 39023.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   PONDER, Justice.

The defendant appealed from a judgment granting the plaintiff, his wife, a divorce on the ground that the spouses had lived separate and apart for more than two years.

The plaintiff, appellee, moves to dismiss the appeal alleging that the transcript lodged in this Court, prepared at the instruction of the appellant, is incomplete.

On submission of the motion to dismiss the appeal, we were not favored with briefs from either of the parties. The appellee does not point out in his motion that the omission of part of the record will result in injury to her and does not request this Court to order the appellant to file a supplemental transcript containing the omitted portion of the record.

Under the provisions of Act 229 of 1910, as amended by Act 265 of 1918, the appellant may, on taking appeal, or within three days thereafter, file a written list of the portions of the record with the clerk of court to constitute the transcript of appeal. The appellee has five days after notice to designate other portions of the record he deems necessary. The clerk of court must prepare the transcript as directed and, when so prepared, the appeal cannot be dismissed on the grounds of a defective transcript, but the parties and the court have the right to have the omitted portion of the record brought up in a supplemental transcript.

The appellee does not seek to supplement the transcript but asks for the dismissal of the appeal. Where the transcript has been made under the provision of the aforementioned act, as amended, the remedy of the appellee, if he has reason to complain of a defective transcript, is to cause the omitted part of the record to be filed as a supplemental transcript or point out the necessity of the omitted portion of the record to this Court in order that this Court may direct the appellant to file a supplemental transcript containing the necessary omitted portions of the record. Quaker Realty Company v. Posey, 130 La. 941, 58 So. 822; Brown v. Staples, 138 La. 602, 70 So. 529; Hayne v. Assessor, 143 La. 697, 79 So. 280.

For the reasons assigned, the motion is denied.


author: PONDER, Justice. HAWTHORNE, 'Justice FOURNET, Justice.

text:
    214 La. 404
    MARTIN et al. v. FULLER et al.
    No. 38493.
    Supreme Court of Louisiana.
    March 22, 1948.
    On Rehearing Nov. 8, 1948.

      McHenry, Lamkin & Snellings, of Monroe, for plaintiffs-appellants.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for defendants-appellees.
   PONDER, Justice.

Jack Allen leased his monument business in the City of Monroe to Nona E. Martin and Emma Lee Short for a period of one year, beginning January 1st and ending December 31st, 1942, at a monthly rental of $75. The property leased consisted of Lot 9 and the west ten feet of Lot 8 in Square. 76 of Breard’s Addition to the city, with improvements, appurtenances and certain movable property located thereon. The lease was executed on November 24, 1941 and contained an agreement giving the lessees the option to purchase the leased property together with Lot 4 in the same square for a consideration of $8,000 at the end of any month within the term of the lease. It is set out in the contract that a deed to the property was contemporaneously executed to the lessees in pursuance to the agreement which was to be placed in escrow with the trust officer of the Canal Savings Bank and Trust Company, to be delivered to the lessees upon their compliance with the optional agreement. The deed was. executed in compliance with the agreement and placed in escrow with the trust officer.

On May 18, 1921, a 13 foot strip of land running through Square 76, between Lots 4 and 9, was dedicated as an alleyway. This dedication was revoked by an ordinance of the city, adopted October 30, 1941. The revocation of the dedication was not filed in the conveyance records until March 9, 1942. It was not of record at the time that Allen leased the property to Martin and Short and the option to buy the lots was given.

On June 11, 1942, Jack Allen sold to Louis Milner and J. R. Fuller Lots 4 and 9 and the west 10 feet of Lot 8, being the same lots he had previously contracted to sell to Martin and Short. In this deed that portion of the 13 foot alleyway lying between the lots was particularly described and conveyed to Milner and Fuller. The vendor also assigned in this deed all of his rights and interest in his contract with Martin and Short. The consideration for the sale was $6,185, cash.

Some time thereafter, Martin and Short exercised their option to purchase the property by paying the consideration to Milner and Fuller, who had acquired all of Allen’s right - in the contract, and secured the deed that had been previously placed in escrow, which they filed in the Conveyance Records of Ouachita Parish.

The plaintiffs herein, Martin and Short, brought the present proceedings against the defendants, Fuller and Milner, seeking to remove the cloud from their title, the purported transfer of the portion of the alleyway abutting their lots. The suit was converted into a petitory action and upon trial the lower court gave judgment recognizing the plaintiffs to be the owners of the lots and the defendants to be the owners of the portion of the alleyway lying between the lots. The plaintiffs have appealed.

The sole dispute is over the ownership of that portion of the alleyway lying between the aforementioned lots. The appellants take the position that the deed executed by Allen, conveying the lots to them, impliedly transferred to them whatever interest that Allen had in the alleyway. While, on the other hand, the appellees take the position that the appellants acquired the lots only and that they should be decreed the owners of the portion of the alleyway lying between the lots because it was specifically transferred to them by Allen. They -contend that when they acquired the portion of the alleyway it was the property of Allan and not that of the plaintiffs.

We have been cited a number of common law authorities that render us no aid because the dedication and its revocation are governed by statutes. The dedication was made in pursuance to the provisions of Act 134 of 1896 and the revocation is governed by Section 2 of Act 151 of 1910 and Section 2 of Act 382 of 1938. Under these latter statutes, the soil embraced in an alleyway u'p to the center line reverts to the then present owners of the contiguous lands when a dedication is revoked.

When Allen contracted to sell the lots to the plaintiffs, the revocation of the dedication had not been recorded in the conveyance records. The plaintiffs had a right to rely on the records as they stood at the time the contract was entered into. Ever since the opinion was handed down in the case of McDuffie v. Walker, 125 La. 152, 51 So. 100, this Court has consistently held that a person acquiring real estate has a right to rely upon the conveyance records and that any notice or knowledge dehors these records is not equivalent to registry.

At the time that Allen contracted to sell the property to the plaintiffs the conveyance records reflected that an alleyway existed between these lots. Streets and alleyways are indispensable to the enjoyment of urban property. The conveyance of property abutting streets and alleyways carries with it the indispensable use and enjoyment of the streets and alleyways. The transfer of the lots abutting the alleyway impliedly gave whatever was necessary to the enjoyment of the lots. In the case of Richard v. City of New Orleans, 195 La. 898, 197 So. 594, 595, we made the following pronouncement: “A sale of land abutting on a street conveys a moiety of the street, unless a contrary intention is clearly indicated.” The appellees challenge this pronouncement and contend that it is purely argumentative and based on a theory. A careful consideration reveals that the pronouncement is sound and founded on law and reason. The reason the statutes provide that the soil embraced in an alleyway up to the center line, upon revocation of the dedication, reverts to the then present owners of the land contiguous thereto is because this portion of the alleyway is indispensable to the full enjoyment of the contiguous property. When the plaintiffs contracted to purchase the property they had a right to rely on the conveyance records, as they then stood, showing the lots were abutting on an alleyway whose benefits they would receive. They had a right to rely on the fact that the alleyway afforded them access from one piece of the property to the other. In transferring the lots, the grantor impliedly transferred all that was necessary for the full enjoyment of the property, unless a contrary intention was indicated.

When the defendants acquired the property, subject to the plaintiffs’ contract, and all the interest that Allen had in the contract, they not only knew that the revocation was not of record at the time plaintiffs’ contract was executed, but they assumed all the obligations flowing from that contract.

As a general rule, parol or extrinsic evidence cannot be resorted to in interpreting a deed where there is no ambiguity in the description of the property. But these rules do not apply where the transactions are so interwoven and tied together as in the present case. All of the provisions in these transactions may be considered in arriving at the true intention of the parties and what property Allen actually conveyed to the plaintiffs. It is apparent that Allen intended to transfer to the plaintiffs all the property he owned in Square 76. In his contract with the plaintiffs he transferred the monument business to the plaintiffs and agreed not to engage in competition with them. It is equally apparent that the plaintiffs were acquiring the business with all the property and rights that Allen had that were necessary to the use and full enjoyment of the business.

The appellees lay stress on the fact that the plaintiffs, having knowledge that the defendants had a deed purporting to convey them the portion of the alleyway, did not complain at the failure of the deed, they received when they exercised their option, to contain a specific conveyance of this portion of the alleyway. If the deed had been executed at the time the option was exercised, the plaintiffs’ right to the portion of the alleyway may have been subject to some question, but the deed was executed, prior to the time the revocation was placed of record, and placed in escrow long before the appellees acquired any interest from Allen. The plaintiffs had contracted for the delivery of the deed, upon their compliance with the option, as previously executed.

For the reasons assigned, the judgment of the lower court is amended by decreeing the portion of the alleyway in dispute to be the property of the plaintiffs. As thus amended, the judgment is affirmed. All costs to be paid by the appellees.

McCALEB, J., concurs.

HAWTHORNE, J., dissents and assigns written reasons.

HAWTHORNE, 'Justice

(dissenting).

This suit involves the title to a parcel of land which formerly was a 13-foot alleyway belonging to the City of Monroe. The alley ran east and west through Square 76 of D. A. Breard, Sr.’s Addition to the City of Monroe, Louisiana, and had been dedicated as such by plat filed May 18, 1921.

Jack Allen, the owner of Lots 4 and 9 and the western 10 feet of Lot 8 of Square 76, which lots were divided by the alleyway, Lots 9 and 8 being north thereof and Lot 4 south, petitioned the city in writing to revoke and set aside the dedication of this alleyway. The city, pursuant to the authority given by Act 382 of 1938, granted the petition by adopting an ordinance, which, after publication, went into effect on November 10, 1941. (See Act 207 of 1912, Section 18 [Dart’s Revised Statutes, Section 5469].) As soon as this ordinance became effective, on November 10, 1941, Jack Allen became the owner of the property here in dispute, under the plain terms of Section 2 of Act 382 of 1938, which provides that, upon the revocation of a dedication of any street, alley, etc., all the soil covered by, and embraced in, such street, alley, etc., up to the center line thereof shall revert to the then present owner or owners of the land contiguous thereto.

After title to the parcel or tract of land which had formerly been an alleyway became vested in Allen, he executed a lease in favor of plaintiffs on November 24, 1941, covering Lot 9 and the west 10 feet of Lot 8, in which lease contract there was an option to purchase the premises described therein' and Lot 4 for $8,000 at any time during the life of the lease. Contemporaneously with this contract a deed was executed from Allen to plaintiffs covering the property, in which it was described as “Lots 4 and 9, and the west 10 feet of Lot 8 of Square 76 of D. A. Breard, Sr.’s Addition to the City of Monroe, as per plat * * This deed, which contained no-description of the property in dispute, was placed in escrow in a bank, to be removed upon compliance by plaintiffs with the terms of the option.

On June 11, 1942, Jack Allen conveyed' to the defendants in this case all of the above described lots, including all of vendor’s right, title, and interest in and to the lease and option contract previously granted to plaintiffs. In addition to specifically describing the lots by number and the square in which they were situated, this deed accurately and fully described the property lying between the two lots, which was formerly an alleyway, and to which Jack Allen had title by virtue of the revocation by the city of the dedication.

On December 30, 1942, plaintiffs exercised their option and withdrew from the bank the deed from Jack Allen to them.

Plaintiffs claim title to the land here in dispute by virtue of the deed to them dated November 24, 1941, which they removed from the bank on December 30, 1942, when they exercised their option to purchase, even though it did not specifically describe the property in dispute. Defendants herein claim title by virtue of their deed dated June 11, 1942, which did specifically describe the property in question.

The ordinance revoking the dedication was not placed of record until March 9, 1942, after the execution of the lease containing the option which granted to plaintiffs the right to purchase the lots abutting the alley.

In my opinion, on November 10, 1941, the date on which the ordinance revoking the dedication went into effect, Jack Allen, the then owner of the lots, became vested with title to the property in controversy by operation of law (Act 382 of 1938), and his subsequent sale in which this property was not specifically described did not convey title to the plaintiffs, named as vendees therein; for, under the plain provisions of Articles 2275 and 2440 of the Revised Civil Code of this state, all sales of immovable property must be in writing.

In his subsequent sale on June 11, 1942, the property was accurately and completely described, and for this reason, if for no other, I am of the opinion that title to the alleyway passed to the defendants, the vendees named in this act of sale.

The majority opinion lays great stress on the fact that the revocation of the dedication was not recorded until after the date of plaintiffs’ contract, and concludes that for this reason plaintiffs had the right to rely on the records as they stood at the time they entered into the contract. If the law of registry is applicable, I think that its application in this case would be favorable to the cause of defendants rather than to that of plaintiffs, for the reason that after the revocation defendants, too, had the right to rely on the faith of the public records, which failed to disclose that the property formerly comprising the alleyway was included in plaintiffs’ contract, and defendants had every right to take title to this property by having the description .thereof incorporated in their deed.

The effect of the ¡majority opinion is to hold that, upon the revocation of the dedication of an alley, the property which comprised the alley becomes and forms parts of the abutting lots. In other words, under this holding, an act of sale in which only Lot 8, for instance, is described conveys title not only to all the property comprising Lot 8 as shown by plat but also to the land formerly comprising the alleyway up to the center line thereof. There is no authority for this conclusion within the act itself. It does not provide that the soil formerly comprising an alleyway becomes, upon revocation of a dedication, parts of the contiguous lots. The only portion of the act which is concerned with title to dedicated streets and public ways, the dedication of which has been revoked, provides only that the soil covered by, and embraced in, such street or alley up to the center line thereof, upon such revocation, shall revert to the then present owner or owners of the land contiguous thereto.

I respectfully dissent.

On Rehearing.

FOURNET, Justice.

The plaintiffs, Nona E. Martin and Emma Lee Short, claiming that certain property acquired by them from Jack Allen, hereafter described, was being slandered by the defendants, Joseph R. Fuller, Mrs. Mary Andrews Milner and Louis Milner, Jr. (the latter two being the surviving widow and sole heir of Louis Milner), instituted proceedings against them for the purpose of having this cloud on their title removed. The defendants, admitting in their answer that the plaintiffs own the property described in their deed from Allen, asserted their ownership of a 13-foot strip traversing the same that had been formerly dedicated as an alleyway. As to this portion of the property, they converted the suit into a petitory action. The lower court, in its judgment, in addition to recognizing the plaintiffs to be the owners of the property admittedly owned by them, decreed the defendants to be the owners of this alleyway. The plaintiffs are appealing.

The record shows that the plaintiffs, on November 24, 1941. entered into a contract with Jack Allen wherein they leased for one year, beginning on January 1, 1942, the monument business that had been conducted by Allen on Lots 4 and 9 and the West 10 feet of Lot 8 in Square 76 of the D. A. Breard, Sr. Addition to the City of Monore, such property being described in the lease to be “as per plat of record in the Clerk’s Office, Ouachita Parish, Louisiana.” The lease was duly recorded the following day. Therein the plaintiffs agreed to pay Allen a monthly rental of $75 and were granted the option, at the end of any lease month during its life, of purchasing the business and the property outright for the sum of $8,000. Contemporaneously, a deed to the realty, “together with the improvements and appurtenances thereunto belonging,” was executed by Allen in favor of the lessees and was placed in escrow with the trust officer of the Central Savings Bank & Trust Company of Monroe, to be delivered to the lessees upon their compliance with the provisions of the option agreement.

Reference to the plat mentioned in both the lease and the deed, which is recorded in Plat Book No. 2 at page 44, discloses that the alleyway in dispute was dedicated to the public on May 18, 1921, along with other streets and roadways in the addition created by D. A. Breard, Sr., the then owner; that it is thirteen feet wide and runs through the square between lots 4 and 9. It appears that the City of Monroe, by ordinance adopted on October 30, 1941, but not recorded until March 9, 1942, officially revoked the dedication of this alleyway on the ground that it was not used by the public at large and had, as an alley, become abandoned.

Under a contract executed by Allen on June 11, 1942, the same property previously sold to the plaintiffs was conveyed to Joseph Fuller and Louis Milner, together with all of Allen’s “rights, title and interest in, under and to” the contract executed by him in favor of the plaintiffs on November 24, 1941, including his right to collect the monthly rentals from the plaintiffs and to receive the purchase price of $8,000 in the event they sought to exercise the option agreement. This agreement was subject to the contract previously executed and with full recognition of the rights of the plaintiffs thereunder. In this deed, Lots 4 and 9 and the West 10 feet of Lot 8 are conveyed under the identical description used in conveying the property to the plaintiffs on November 24, 1941, with the addition that the 13-foot strip is in this contract particularly and specifically described. The consideration Fuller and Mil-ner paid Allen for this deed was $6,185.

On or about December 30 following, the plaintiffs exercised their option agreement and purchased the property, paying the consideration there'for to the defendants. They continued to operate the business on the property, using all of the land indiscriminately, until, in 1946, objection was made to their title by a prospective purchaser. Upon the failure of the defendants to execute a quitclaim deed, they instituted this suit.

Unlike the rule at common law, it is the public policy of this state that in order to affect third parties, all transactions touching upon or affecting title to real or immovable property must be recorded. As stated in the case of Baker v. Atkins, 107 La. 490, 32 So. 69, 70, “there can be no actual owner of immovable property, so far as third persons are concerned, other than the owner of record”. See, also, McDuffie v. Walker, 125 La. 152, 51 So. 100; Soniat v. Whitmer, 141 La. 235, 74 So. 916; Loranger v. Citizens’ Nat. Bank of Hammond, 162 La. 1054, 111 So. 418; Dalbey v. Continental Supply Co., 165 La. 636, 115 So. 807; State ex rel. Hebert v. Recorder of Mortgages, 175 La. 94, 143 So. 15.

Referring to the decision in the case of McDuffie v. Walker, this court, in the Soniat case, [141 La. 235, 74 So. 917] observed that since that time, “the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative — let us hope forever.”

It is the contention of the plaintiffs that under this doctrine the revocation of the dedication of this alleyway could not affect their rights since such revocation only became effective as to them on the date of its recordation, March 9, 1942; in the alternative, that if we hold this revocation did become effective upon its adoption on October 30, 1941, then that they acquired title to it by virtue of their acquisition of the propert3>- abutting thereon from Allen, since there is nothing that would indicate otherwise in their deed.

On the other hand, it is the contention of the defendants that under the express provisions of Act 382 of 1938, when the* municipal authorities of Monroe revoked the dedication of the alleyway in question “all of the soil covered by and embraced in 'such roads, streets or alleyways up to the center line thereof” reverted to the present owner of the land contiguous thereto, and that such revocation became effective immediately as to all parties since the law of registry does not apply to municipal ordinances, it being their argument that the only instruments that need be recorded to affect third persons are those specifically enumerated in the statutes of this state. Consequently, that when they acquired the strip of land formerly embraced in this alleyway by particular description, they were entitled to rely on the public records and these failed to show Allen had divested himself of this property.

The legislature, by its adoption of Act 382 of 1938 (as well as the prior act, Act 151 of 1910), vesting the police juries and the municipal corporations of this state with the power to, in their discretion, “revoke and set aside the dedication of all roads, streets and alleyways laid out and dedicated to public use within their respective limits, when such roads, streets and alleyways have been abandoned or are no longer needed for public purposes” (Section 1), and providing that “all of the soil covered by and embraced in such roads, streets or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto” (Section 2), did not intend to, and did not thereby, abrogate the law of this state with respect to registry.

The above quoted language of Section 2 cannot be said to be free from ambiguity. Clearly the property in question here could not revert to the owner of the land contiguous thereto at the time of the revocation (Jack Allen) since he was not a former owner and had no reversionary right thereto. We must, therefore, determine just what the legislature intended in providing that title to such publicly dedicated passageways shall, when revoked, “revert to the then present owner or owners of the land contiguous thereto.”

It is our opinion that the lawmakers intended such property should again become part and parcel of the property from which it had been originally carved and that the ownership thereof would then become vested in accordance with the ownership of the property contiguous thereto at the time ■of the revocation.

D. A. Breard, Sr., by recording in the official records of Ouachita Parish the plat of the sub-division o'f the property owned by him showing the roads, streets, and alleyways he was dedicating to the public not only divested himself of his title to these roads, streets, and alleyways, but, in effect, conveyed them to the City of Monroe for the use and benefit of the public. It is true the recordation of this plat is neither a sale nor a contract with respect to the property in the true sense of the word; nor is the revocation of the dedication a sale or contract. Nevertheless, both of these transactions just as effectively transfer title to the property as if the same had been conveyed by a contract of sale, whether executed by a notarial act or an act under private signature.

It is our opinion that until the revocation of the dedication of these roads, streets, and alleyways under the provisions of Acts 151 of 1910 and 382 of 1938 is duly recorded as required by law, it cannot affect the rights of third parties. Clearly, therefore, when the plaintiffs purchased the lots described in their deed in accordance with the plat therein referred to showing that the property was traversed by the alleyway in question, they had the right to assume that until the contrary appeared on the public records, this alleyway was still dedicated to public use.

We therefore conclude that title to this alleyway vested in the plaintiffs on March 9, 1942, when the dedication was officially recorded, since they were the owners of record of the property contiguous thereto at that time.

For the reasons assigned, our original decree is reinstated and, accordingly, the judgment of the lower court is amended by decreeing the portion of the alleyway in dispute to be the property of the plaintiffs and, as thus amended, the judgment is affirmed. All costs are to be paid by the appellees.

HAWTHORNE, J., adheres to his previous dissenting opinion.

O’NIELL, C. J., does not take part.


author: REGAN, Judge.

text:
    OLYMPIA ROOFING CO. v. PIANCKO.
    No. 18997.
    Court of Appeal of Louisiana. Orleans.
    Dec. 13, 1948.
    Benjamin Y. Wolf, of New Orleans, for appellant.
    H. L. Midlo, of New Orleans for ap-pellee.
   REGAN, Judge.

Charles D. Augustin, the plaintiff herein, doing business under the trade name of Olympia Roofing Company, filed suit against Sam Piancko, defendant, for the sum of $141.00, alleging that this amount was due him for repairing the roof of the premises located in 342-344 S. Rampart Street.

Defendant denied that he was indebted to the plaintiff in any sum whatsoever and reconvened claiming the sum of $485.00, averring that to place the said roof in the condition originally agreed upon by plaintiff would cost the aforementioned sum.

From a judgment dismissing both the principal and 'the reconventional demand, plaintiff appeals. Defendant answered the appeal praying for judgment in recon-vention.

The record, although conflicting, reveals that during .the “early part of 1946”, defendant employed plaintiff to repair the roof of 342-344 S. Rampart Street, without any agreement as to. the -cost thereof. It appears that plaintiff had, on other occasions, done work for defendant without determining the cost in advance of the work. Upon the completion of the repairs to the roof .plaintiff sent defendant a bill in the amount of $437.21. The record is vague as to .the date of this first bill. However, the record does show an invoice dated September 30, 1946, sent by plaintiff to defendant. Thereafter, defendant or his employees '.complained to plaintiff that the roof continued to leak, and plaintiff, from time to time, in response to complaints, examined the roof. Plaintiff denied that the roof leaked. Defendant, on the other hand, maintained that it did. Finally, during the Month of December, 1946, plaintiff reexamined the roof and ascertained that there was a leak emanating from the adjoining ¡property. There .is a dispute between the parties as to whether there was to be an additional charge of $141.00 for repairing this leak. Plaintiff contends that he repaired some metal work and the parapet wall on the property adjacent to that owned by the defendant, and which he claims was causing the roof of defendant’s property to leak. Defendant denies that he had agreed to pay any additional charge for this work and that it was included in the original employment of plaintiff. In any event this work was completed between December 17th and 23d of 1946. On January 3, 1947, defendant paid plaintiff the sum of $437.21. On January 23, 1947, plaintiff sent defendant an invoice in the amount of $141.00, which is the object of ■this suit.

A careful analysis of the record reveals that defendant employed plaintiff to repair the roof of his property which was leaking, and that defendant was not concerned with the problem of where the leak or leaks emanated. Plaintiff was given, to express ourselves colloquially, ‘‘carte blanche” to repair the roof in question.

We are of the opinion that plaintiff failed to repair defendant’s roof properly in -the first instance and that the work performed in December was obviously intended to be included in the initial employment of plaintiff by defendant. We, therefore, believe that the trial court was correct in dismissing the main demand.

With respect to the reconventional demand, it is our opinion that -the record contains no evidence to sustain this action. Defendant placed on the stand a roofing ■salesman and estimator, who -testified in substance -that he was requested by defendant to examine the roof, but in the final analysis, he did not know whether he was estimating the cost of a new roof, or the cost of repairing leaks allegedly overlooked by the plaintiff. The following testimony was elicited from this witness which conclusively establishes in our minds that the trial court was correct in dismissing the reconventional demand.

“Q. Tell us what you know about this matter? A. Well, Mr. Piancko called us up for an estimate and one day the superintendent and myself goes down to Mr. Piancko’s business and I walked in the front door and asked Mr. Piancko where the roof was leaking. That is the general custom to see if we need a new roof or not. Mr. Piancko points to the ceiling like this (indicating) and there is no other answer to it. We go on top of the roof, and, of course, when we figure a new roof or figure repairing leaks or put a new roof you have to see the leaks, and I had an understanding that the roof was leaking all over, and—

******

“By the Court: Don’t say what your understanding was, just tell us what you did. A. Well, we went -up and measured the roof for a new roof.

“Q. Well, did this roof need this work done or not? A. Well, I couldn’t tell you offhand.

“Q. You mean you gave an estimate without knowing the work to be done? A. Well, the man called up for an estimate and if I could have seen the leaks I would have gave him an estimate on repairing them, but the thing was he wanted a new roof.

* * * * * *

“Q. Did Mr. Piancko say he wanted a new roof ? A. He called for an estimate, whether for a new roof or repairs he didn’t state.

ijc ifi % % ije

“Q. Did you make any examination of the roof at all? A. Not a thorough examination.

“Q. Did you know whether there were any leaks at all in the roof? A. No, sir.”

This is manifestly a case which involves the well known doctrine that the findings of a (trial court will not be disturbed or reversed where only questions ■of fact are involved, unless that finding is obviously erroneous, consequently, and

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.