text:
    213 La. 519
    EASTERLING v. BROOKS.
    No. 38433.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied April 26, 1948.

      W. F. Pipes, of Monroe, for interverter and third opponent.
    Deutsch, Kerrigan & Stiles, of New Orleans, amicus curiae.
    McHenry, Lamkin & Snellings of Monroe, for Easterling.
   FOURNET, Justice.

The relator O. A. Walling, as the holder in due course of a $965 note executed by John Young Brooks and secured by a chattel mortgage on a Ford truck, intervened in the proceedings under which Mrs. Marguerite Lamkin Easterling as the lessor of Brooks provisionally seized the truck along with other movable property affected by her lessor’s lien in satisfaction of rent due her by Brooks under three separate leases — two of which were executed subsequent to the ■ recordation of intervenor’s chattel mortgage — seeking to have the truck separately appraised and sold and the proceeds derived therefrom applied to the payment of his note. Upon the affirmance by the Court of Appeal for the Second Circuit of the judgment of the lower court — with an amendment that did not affect the results reached by the lower court — ordering the sheriff of Ouachita Parish to pay over to Mrs. Easterling the amount derived from the sale of the truck in preference and priority over all persons, the intervenor applied for and was granted this writ of certiorari for the review of the judgment. 28 So.2d 523.

The record shows that on December 1, 1943, Mrs. Easterling leased to Brooks for a period of two years 20 acres of land, together with a portion of the improvements thereon, near Monroe, Louisiana, for $1,400, this rent being payable every 90 days in the amounts fixed in the lease. Of this amount Brooks paid the $200 due on April 1, 1944, and the $300 due on July 1, 1944. Remaining unpaid at the time the suit was instituted were the $200 due on November 30, 1944, the $200 due on April 1, 1945, the $300 due on July 1, 1945, and the $200 due on November 30, 1945, or a total of $900. On March 3, 1944, subsequent to the execution of ■ this lease, Brooks mortgaged to O. A. Walling, the intervenor and third opponent, his Ford truck, to secure the $965 note given Walling. Walling recorded this chattel mortgage on April 8, 1944, at a time when there was nothing due Mrs. Easterling under the lease entered into with Brooks on December 1, 1943, since the rent due' on April 1, 1944, had been paid. Almost a year later, on January 13, 1945, Mrs. Easterling leased to Brooks on a month to month basis, for $60 a month, the main dwelling and appurtenant structures on the property that had been excluded from the first lease because occupied at the1 time by other tenants, and he moved his family from Monroe to the dwelling where they thereafter resided,- he having previously commuted between his Monroe residence- and the farm. The rent under this second lease was paid to September 1, 1945. On or about November 1, 1945, with the rent under the first lease not having been paid for a year and the rent under the second lease not having been paid for two months,. Mrs. Easterling again leased to the defendant, this time for a period of one year, beginning on November 30, 1945, the date on which the first lease expired, the 20 acres covered by the first lease. The consideration for this lease was $700, payable in fixed monthly arrtounts in advance. No part of this amount was ever paid.

On March 30, ,1946, Mrs. Easterling instituted suit against Brooks to recover the $900 due under the first lease, the $420 due under the second lease covering the main dwelling and out buildings, and $233.33, the proportionate amount due under the third lease at the time the suit was filed, or a total of $1,533.33 (she also cumulated in her suit a claim for $2,670 due her for money loaned the defendant, which has no bearing on the issues now before us), with interest and attorney fees, provisionally seizing all of the personal property of Brooks found on the leased premises, including the truck mortgaged to Walling. The defendant’s answer amounting to nothing more than.a confession of judgment, the trial judge rendered judgment for the plaintiff as prayed for, recognizing her lessor’s lien and privilege and ordering the property seized sold in satisfaction of the judgment. "íhe sheriff thereupon advertised the property for sale., Prior to the date set for the sale, however, Walling intervened in the suit, claiming his chattel mortgage on the truck primed the lessor’s lien and praying that it be separately appraised and sold. This was done and the $600 derived from the sale thereof were, under the court’s order, retained by the sheriff pending the outcome of Walling’s intervention. The other property was sold for $1,235.

In his answer to the intervention Brooks admitted all of the allegations and submitted the issues to the court, praying for all general and equitable relief, but Mrs. Easterling, praying, that her lessor’s lien and privilege be recognized and maintained as superior to all claims of Walling and that the sheriff be ordered to pay to her the $600 realized from the sale of the mortgaged truck, averred, first, that Brooks borrowed money from a finance service in September of 1945 with which he paid the Walling note; in the alternative, that her lien and privilege primed the chattel mortgage since it was not executed and recorded until after the truck was taken onto the leased premises and had thus become affected by her superior claim.

Mrs. Easterling’s effort to prove Walling’s mqrtgage had been extinguished by payment was unsuccessful, but the lower court, pointing out that Brooks had taken the truck onto the leased premises (although he did not then live there) prior to the time the mortgage was executed, concluded Mrs. Easterling’s lien and privilege outranked the chattel mortgage and he rendered judgment recognizing its superiority and ordered the sheriff to turn over to the lessor the $600 derived from the sale of the truck. In the intervention and third opposition he rendered judgment in favor of Walling and against Brooks in the full amount of the note, with interest and attorney fees.

Walling thereupon appealed to the Court of Appeal for the Second Circuit, pointing out that this judgment, in effect, held the entirety of the indebtedness due the plaintiff under all three leases was secured by her lessor’s lien and that this lien primed the chattel mortgage. He contended that even conceding, for argumentative purposes, the chattel mortgage was primed by the lien and privilege arising under the first lease, it was error to impute the amounts derived from the property sold other than the truck to the satisfaction of the debt due under the second and third leases, thus leaving the amount due under the first lease to be satisfied out of the funds derived from the sale of the truck. In other words, that since Mrs. Easterling realized more than sufficient funds from the sale of the property other than the truck to pay her claim under her first lien, which primes the chattel mortgage, this amount must be applied toward the 'liquidation of this obligation; and that since the chattel mortgage primes the liens arising under the second and third leases, this money cannot be used in satisfaction of these debts.

Although agreeing with Walling that his chattel mortgage primed the lessor’s claim under the last two leases, and amended the judgment of the lower court accordingly, the Court of Appeal concluded this did' not alter the results reached by the lower court since Mrs. Easterling acquired a fixed and vested right against the truck when it became subject to and'affected by her lessor’s lien and privilege under the first lease “to secure payment, in whole or part, of all the indebtedness- due her,” she not being required, under the law, “to impute payment in such a way and manner as to impair her rights to the extent that loss would fall upon her.” '

We think the Court of Appeal erred in this holding for under the law and jurisprudence of this state, in the absence of express agreement to the contrary, it was the duty of the creditor to impute the proceeds derived from the sale of the movables to the debt that was secured, but if of equal rank and dignity, then to the one longest due. Article 2166 of the Revised Civil Code. See, also Madison Lumber Co. v. Helm, 202 La. 1061, 13 So.2d 349, and In re Liquidation of Hibernia Bank & Trust Company, 205 La. 890, 18 So.2d 330. Consequently, these proceeds should have been imputed to the rent due under the first lease and which was past due at the time the second lease was executed on January 13, 1945. And since the amount derived from the movables other than the truck was more than sufficient to satisfy the claim under the first lease, which was the only one that primed the intervenor’s chattel mortgage, he is entitled to have the $600 realized from the sale of the truck applied to the satisfaction of the note held by him in preference and priority over the lessor’s subsequently acquired rights under the last two leases.

For the reasons assigned the judgment of the Court of Appeal for the Second Circuit, in so far as it orders the sheriff, of Ouachita Parish to pay over the $600 realized from the sale of the truck to the less- or and casts the intervenor for the costs of the intervention and third opposition, is annulled and set aside and it is now ordered, adjudged, and decreed that there be judgment in favor of the intervenor and third opponent, O. A. Walling, and against 'the lessor, Mrs. Marguerite Lam-kin Easterling, ordering the sheriff of Ouachita Parish to pay over to the inter-venor the proceeds of the sale of the truck, to be applied toward the payment and satisfaction of the- judgment rendered in his favor in preference and priority over all other claims, and particularly those of Mrs.' Marguerite 'Lamkin- Easterling; in all other respects the judgment is affirmed. All costs of the intervention and third opposition and- of the proceedings in this court are to be paid-by Mrs. Marguerite Lamkin Easterling.

O’NIELL, C. J., absent


source: Caselaw Access Project

author: O’NIELL, Chief Justice. HAWTHORNE, Justice

license: Public Domain

text:
    213 La. 528
    STATE v. CHEVALLIER.
    No. 38531.
    Supreme Court of Louisiana.
    March 22, 1948.

    Dissenting Opinion March 23, 1948.

      John R. Hunter & Son, of Alexandria, and Arthur Taliaferro, of Harrisonburg, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Jesse C. McGee, Dist. Atty., of Harrisonburg, and S. R. Thomas, of Natchitoches, for appellee.
   O’NIELL, Chief Justice.

The appellant, Ben Chevallier, was prosecuted for the murder of one Ernest Prit-chard, was convicted of manslaughter and sentenced to imprisonment in the penitentiary for ten years. He reserved six bills of exception during the trial but has abandoned four of them.

One of the two bills that have not been abandoned has reference to a ruling of the .judge sustaining an objection made by the prosecuting attorney to a question propounded by the attorney for the defendant to a witness for the state,- on cross-examination. The witness, Mrs. Geneva Prit-chard, a sister-in-law of the deceased, was present during the fatal difficulty. It occurred just outside the door of a barroom, in which the parties had been drinking. Ernest Pritchard was very drunk and quarrelsome, and his father, John Pritchard, was escorting him out of the barroom trying to quiet him. The objection to the question propounded to Mrs. Pritchard arose when the defendant’s attorney attempted to prove by her what John Pritchard said to his son, Ernest, while escorting him out of the barroom. The reason for the objection was not stated at the time when it was made, but the record discloses that the objection was that the statement of John Pritchard to his son was not a part of the res gestae. The statement was, as subsequently related by John Pritchard in his testimony: “Go on and be quiet.”

. There are two reasons why the judge’s ruling was not harmful to the defendant. The first of these reasons is that, although Mrs. Pritchard testified that she heard John Pritchard say something to his son Ernest immediately before the shooting, she testified also that there were so many of them talking at the time that she could not' remember what any of them said.

The second reason why the judge’s ruling, sustaining the objection to the question propounded by the defendant’s attorney to the 'witness, Mrs. Pritchard, was not harmful to the defendant is that John Pritchard himself, afterwards, on cross-examination, related what he had said to his son Ernest at the time when he escorted him out of the barroom. He testified that Ernest was drunk and quarrelsome and that he, the father, told Ernest: “Go on and be quiet.” The purpose and the importance of proving that John Pritchard made that statement to his son immediately before the shooting was that it tended to prove that Ernest Pritchard was in a belligerent mood and was provoking the difficulty. The defendant received the benefit of the evidence directly from the witness, John Pritchard. It would not have added anything to the evidence if Mrs. Geneva Pritchard, as a witness in the case, had remembered and had testified that she heard John Pritchard tell Ernest: “Go on and be quiet.” There is no merit in this bill of exceptions.

The other one of the two bills of exception which have not been abandoned was reserved to the overruling of an objection made by counsel for the defendant to certain testimony given by the state’s witness, John Pritchard. Pie is the one who made the charge which resulted in the indictment of Ben Chevallier for the murder of Ernest Pritchard. John Pritchard, having been present during the fatal difficulty, was an important witness for the state. He testified over the defendant’s objection, on redirect examination, that he did not want to file a charge against Ben Chevallier, or to have a warrant issued for his arrest, until he, the witness, could make an investigation of the matter and “find out the whole story”; and that he made the investigation and, “after finding out the whole story,” filed the charge on which Ben Chevallier was indicted. The' objection to the testimony was that the witness, John Pritchard, was allowed to státe to the jury his opinion — founded, not upon the information which he had gained as a witness to the fatal difficulty, but upon that which he gained afterwards from other persons in his investigation of the case- — that Ben Chevallier was guilty of murder.

The attorneys for the appellant rely upon the decision rendered in State v. Borde, 209 La. 905, 25 So.2d 736, 739, which supports their bill of exceptions exactly. In the case cited, Borde w;as prosecuted for a capital offense and was found guilty without capital punishment. We set aside the verdict on two grounds, one of which was that a deputy sheriff, as a witness for the state, was allowed to testify, over the defendant’s objection, that as a result of an investigation made by him, the deputy sheriff, after the defendant was arrested, he was not released from custody. In sustaining the objection, the author of the opinion stated:

“Such testimony is immaterial and irrelevant to the issues of the case and could have no other effect than-to convey to the jury the witness’ belief that the defendant was the guilty- party, contrary to our jurisprudence that a witness is never allowed to express- an opinion or suspicion as to the guilt or innocence of an accused. State v. Robertson, 111 La. 35, 35 So. 375; State v. Bessa, 115 La. 259, 38 So. 985; State v. Vinzant, 200 La. 301, 7 So.2d 917; 2 Wharton’s Criminal Evidence 1658, Sections 944 and 945; Underhill’s Criminal Evidence 429, Section 230; and 20 Am.Jur. 633, Section 763.”

In the instant case the prosecuting attorney, in questioning the witness, John Prit-chard, in such a way as to show that Prit-chard’s opinion of the guilt of Ben Chev-allier was founded upon facts which the witness had obtained from other persons in the investigation which he made subsequent to the killing, assumed that the witness had testified already that he did not want to have a warrant issued for the arrest of Ben Chev-allier until he, the witness, would make an investigation and “find out the whole story.” But the prosecuting attorney was mistaken in assuming that the witness had so testified. The prosecuting attorney prefaced his ques-. tioning of the witness, John Pritchard, on re-direct examination, thus:

“Q. In response to questioning you said you didn’t want to have a warrant issued until after you found out the whole story- - what was the whole story? A. I found out all about it later.
“Q. What was it?”

Here counsel for the defendant objected to the witness’ relating what he had found out in his investigation of the.case, and the judge sustained the objection. But immediately thereafter the prosecuting attorney propounded the question which showed that the -opinion which the witness had formed was founded upon the investigation which he had made subsequent to the homicide— thus:

“Q. You didn’t [needn’t] say what you found out, but after finding it out, after your investigation, did yo'u file charges ? ”

Here the defendant’s . counsel objected; the objection was overruled; and the witness answered: “Yes.”

All of the testimony given by the witness, John Pritchard, was taken down steno-graphi'cally and is áttached to the bill .of exceptions. It leaves no doubt that' the prosecuting attorney was mistaken in assuming, when he began his re-direct examination of the witness, that he had testified already — presumably on cross-examination — that he didn’t want to have a warrant issued for the arrest of Ben Cheval-lier until he, the witness, could make- án investigation, and find out “the whole story.” Except in. his answer to the question propounded by the prosecuting attorney on redirect examination of the witness, the latter did not at any time say that he did not want to have a warrant issued for the arrest of Ben Chevallier without first making an investigation and finding out the whole story.

The judge, in his per curiam, attached to* this bill of exception, reveals that he misunderstood the objection. His understanding, as shown by his per curiam, was that counsel for the defendant objected merely to the allowing of the witness to testify to the fact that he filed the charge against Ben Chevallier. Under that belief, the: judge overruled tlie objection for the reason that it could cause no harm to the defendant for the witness merely to verify the fact, which the record itself showed, that the witness was the one who had filed the charge against Ben Chevallier. The per curiam reads as follows:

“It should be observed that the witness was permitted to testify only to the fact that he filed charges. While it is true the record itself would be the best evidence of this fact, a verification thereof by the signer of the affidavit himself could in no way injure the cause of the accused.”

The objection to the testimony was, not that it showed who filed the charge •against the defendant, but that it showed that the party who filed the charge based his conclusion as to the defendant’s guilt, not upon facts which he learned as a witness to the fatal difficulty, but upon facts which he learned from other persons in the investigation which he, the witness, made subsequent to the killing. Our conclusion is that this bill of exception is sustained by the ruling in State v. Borde, 209 La. 905, 25 So.2d 736.

The verdict and sentence are annulled and the case is ordered remanded to the district court for a.new trial.

HAMITER and HAWTHORNE, JJ., dissent.

HAWTHORNE, Justice

(dissenting).

I cannot agree with the ruling of the majority that the bill of exception on which the conviction and sentence were reversed has merit.

The testimony of the witness Pritchard on redirect examination by the State, taken down by a stenographer and made a part of the bill, reads as follows :

“By Mr. Thomas:
“Q. In response to questioning you said you didn’t want to have a warrant issued until after you found out the whole story — ■ what was the whole story? A. I found out all about it later.
“Q. What was it?
“Mr. Plunter, Jr.: Objected to.
“Court: Objection sustained.
“Q. You didn’t say what you found, out, but after finding it out, after your investigation, did you file charges ?
“Mr. Hunter, Jr.: Objected to.
“Court: Objection overruled.
“A. Yes.”

The per curiam of the trial judge, incorporated in the bill, reads thus:

“It should be observed that the witness was permitted to testify only to the fact that he filed charges. While it is true the record itself would be the best evidence of this fact, a verification thereof by the signer of the affidavit himself could in no way injure the cause of the accused.” (Italics mine.)

It is to be observed from the bill of exception and the testimony of the witness made a part thereof that the attorney for the defendant objected to the question but stated no ground whatsoever as a basis for his objection. This is one reason which leads me to conclude that the bill is without merit, for I understand the law to be well settled that a bill of exception must contain the question objected to and the grounds of objection. State v. Green, 36 La.Ann. 185; State v. Carroll, 160 La. 199, 106 So. 782; State v. Keife, 165 La. 47, 115 So. 363; State v. Antoine, 189 La. 619, 180 So. 465; 2 Marr, Criminal Jurisprudence (2d ed.), Sec. 730.

In State v. Keife, supra [165 La. 47, 115 So. 365], this court said:

“It is elementary that an objection to testimony must state the specific grounds upon which it is based, in order that the court may be given an opportunity to rule intej-ligently as to its admissibility.”

In State v. Carroll, supra, an objection was made that the testimony incorporated in two bills of exception was not admissible, counsel giving no specific ground for its inadmissibility. In disposing of these two bills, we stated [160 La. 199, 106 So. 783]:

“ * * * We are not advised what objection defendant had to the proffered testimony, and we are not required to explore the wide field of evidence to discover some possible ground on which the evidence might or should have been excluded. * * ”

In the recent case of State v. Antoine, supra, this rule is expressed as follows [189 La. 619, 180 So. 466] :

“During the trial of his case, defendant reserved a bill of exception to the ruling of the court overruling his objection to certain questions asked a defense witness under cross-examination. A mere reading of the testimony objected to conclusively shows that the bill of exception is without merit. Moreover, the defendant in urging his objection and reserving his bill of exception did not show ‘the grounds for the objection and the error complained of, so as to give the trial judge an opportunity to correct his error,’ and, therefore, could not take advantage of the exception on appeal. State v. Lanning, 134 La. 209, 63 So. 878. See, also, State v. Ricks, 170 La. 507, 128 So. 293.”

This rule is set forth in State v. Ricks, cited in the quotation -from the Antoine case, in language even stronger than that used in the Antoine case [170 La. 507, 128 So. 296]:

“It is well settled that a bill of exceptions must state the grounds of objection and point out specifically the errors complained of, in order than an opportunity may be given the trial judge to correct them; if not sufficiently specific, it will not afterwards avail the party raising it. * * *
“Counsel for defendant states in his brief these objections to the charge specifically, but the useful time and place for stating them was before the trial judge before the verdict.”

The majority opinion, in effect, overrules all these cases and others without specifically naming them.

Counsel in the instant case having failed to state the specific grounds on which the objection was based, the judge of the lower court certainly did not have an opportunity to rule intelligently thereon or to correct his error, if any. Furthermore, the fact that the judge did not understand on what specific grounds the objection was made is clearly shown in the majority opinion itself, from which I quote:

“ * * * His [the trial judge’s] understanding, as shown by his per curiam, was that counsel for the defendant objected merely to the allowing of the witness to testify to the fact that he filed the charge against Ben Chevallier. Under that belief, the judge overruled the objection for the reason that it could cause no harm to the defendant for the witness merely to verify the fact, which the record itself showed, that the witness was the one who had filed the charge against Ben Chevallier, * * ” (Italics mine.)

Moreover, although I recognize and approve the general principle, of law that in a criminal case testimony of a witness expressing an opinion as to the guilt or innocence of the accused is not admissible, I cannot agree with the majority’s conclusion that the testimony of the witness PriL chard, quoted hereinabove, was inadmissible for this reason. In the instant case, the'witness merely answered “Yes” to the question of whether he filed charges after an investigation from which he found out certain information (not given in testimony), and did not in any way express an opinion as to the guilt or innocence of the accused. For this reason, in my opinion, the general rule of criminal law applied in the majority opinion is not applicable in this case.

As I interpret the testimony, the witness was not expressing an opinion; he ■ was testifying merely to the existence of facts, that is, that he made an investigation, ’ and that he filed charges.

For reversal under this bill, defendant relies on the case of State v. Borde, 209 La. 905, 25 So.2d 736, an extract from the opinion in which is quoted with approval in the majority opinion in this case. There is grave doubt in my mind that the admission of the testimony objected to and forming the basis of defendant’s bill in that case constituted reversible error. As I see it, the witness was testifying in that case, as in the instant case, only to facts within his knowledge and was not giving opinion evidence.

I respectfully dissent.


author: HARDY, Judge.

text:
    MARTIN v. BROWN PAPER MILL CO., Inc.
    No. 7080.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Joseph S. Guerriero, of Monroe, for appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   HARDY, Judge.

This is an action for compensation in which the claims of plaintiff were met by exceptions of no right and no cause of action, which exceptions were sustained and plaintiff’s suit dismissed by judgment of the District Court. From this judgment plaintiff has appealed.

The pertinent allegations of plaintiff’s petition represent that plaintiff entered the employ of defendant on or about the 15th day of June, 1944; that his employment consisted of working in the caustic alkali liquid room, in which room he was required to test the said liquid and, in the course of which, he dipped the caustic from one vat and transferred it to another, in which operation the steam from the fluid blew into his face and over his body; that in handling the liquid his face, hands, arms and other exposed parts of his body were subjected to contact therewith; that during the latter part of April, 1946, plaintiff was affected by a rash on his body, hands, arms and face, which caused a severe itching with attendant discomfort, and which was accompanied by stomach pains; that the rash became a permanent source of irritation and infection ; that he had never been troubled with any skin irritation prior to the time set forth; that on or about the 12th day of April, 1946, plaintiff learned for the first time that his condition was incurable and that he would suffer for the remainder of his life; and that, by reason of the alleged accident on April 12, 1946, plaintiff is entitled to compensation.

The grounds upon which defendant’s exceptions are based are that plaintiff’s petition does not set up the occurrence of an accident, nor does it allege any injuries as the result of an accident. Resolving these contentions into another form it is obvious that defendant resists plaintiff’s demands on the ground that plaintiff is suffering from the effects of an occupational disease and not from injuries resulting from an “accident” within the meaning and under the intent and purpose of the Workmen’s Compensation Statute. Act No. 20 of 1914, as amended.

Plaintiff’s earnest counsel emphasizes the doctrine of liberal construction of the Workmen’s Compensation Act and contends for the application of such a definition and interpretation of the term “accident” as would sustain plaintiff’s action. In support of this argument counsel has particularly cited cases involving cement poisoning; cement and ivy poisoning; injury from working in dust; injuries from Caisson disease; heat prostration; injury from continuous climbing of -telephone poles with the assistance of spurs; injury from glare, etc. We have carefully examined cases involving these points, among which we specifically note McClin-ton v. Moore Bros., Inc., 19 La.App. 54, 139 So. 568; Woodward v. Kansas City Bridge Co., La.App., 3 So.2d 221; Glover v. Fidelity & Casualty Co. et al., La.App., 10 So.2d 255; Haden v. Maryland Casualty Co. et al., La.App., 18 So.2d 238, together with numerous other authorities along the same line, and find that without exception all of these cases are readily and easily distinguishable, on the facts, from the instant case.

Diligent counsel for plaintiff particularly emphasizes the case of Cannella v. Gulf Refining Company, La.App., 154 So. 406, and what he denominates as the reaffirmance of the principles enunciated therein in Custer v. Higgins Industries, Inc., La.App., 24 So.2d 511. We eliminate the Higgins case from any consideration or discussion on the ground that it is in no sense analogous to and has no bearing upon the case at hand since it involved a hernia injury which was shown to have been sustained as the direct result of an established accident.

The Cannella case is worthy of particular notice only because the injury complained of resulted from the contraction of a disease, i. e., lead poisoning, which is somewhat comparable to the disease which is asserted by plaintiff herein. Notwithstanding this fact, we find no difficulty whatsoever in distinguishing the Cannella case and rejecting its holding as having any weight in the determination of the matter before us. The plaintiff in the Cannella case had been regularly employed for several years in the same character of work which he was doing on July 15, 1931, when the “accident” was established as having occurred. The Court found as a fact that the lead poisoning which Cannella sustained was acute and therefore it was an accidental injury which was compensable. Particular attention was called by the Court to the medical testimony to the effect that in cases of acute lead poisoning “the patient is normal and healthy and within a few hours or several days * * * the usual symptoms characteristic of lead poisoning evidence themselves and the patient is deathly sick and disabled” [154 So. 409],

The opinion in the Cannella case in itself is sufficient authority upon which to base a disposition of the case at bar by reason of the fact that it makes a careful analysis of the distinction between accidental injury and occupational' disease, as defined by the well considered opinions of the courts of other jurisdictions, exhaustive citations and extracts therefrom being included in the opinion. In the course of the opinion the Court made the following pertinent observation :

“It appears to be well settled that where the lead poisoning is gradual and cumulative over a long period of time that it is not an accidental injury or disability within the meaning of the compensation statute.”

Following the chronological sequence of the material facts set forth in plaintiff’s petition, it is observed that plaintiff began work on or about the 15th day of June, 1944; that on August 15, 1945, after being subjected to contact with the caustic alkali liquid in the course of his employment for a period of more than a year, he suffered a reaction which manifested itself in a rash or eczema affecting his body and hands; that it was not until the 12th day of April, 1946, that plaintiff learned that his injuries were permanent.

Under- the allegations of plaintiff’s petition there is no ground for any conclusion save that plaintiff had been engaged for a period of well more than a year before any evidence of disease resulting from the nature of his employment began to manifest itself, and that he had been so engaged for a period of almost two years before the disease reached a stage of such severity as to cause disability. These facts meet every requirement that has been fixed by the Courts of Louisiana and the majority of other jurisdictions with respect to the definition of an occupational disease.

The facts in this case are more nearly comparable with the facts in the case of Mitchell v. Department of Highways et al., La.App., 27 So. 2d 647, than any other which we have examined. In the cited case this Court denied recovery on the ground that the facts sustained a finding to the effect that the plaintiff was suffering from an occupational disease. In the course of the opinion reference was made to the clear definition of the term “occupational disease” as set forth in Glover v. Fidelity & Casualty Co., La.App., 10 So.2d 255.

To our minds the allegations of plaintiff’s petition are amply sufficient in themselves to characterize plaintiff’s disease as being occupational in character, by reason of the fact that it developed gradually over a long period of time. There is not the slightest indication in the petition of any acute development of disease which would permit the classification of the resulting injuries under the head of accidental, nor are there any allegations which would serve to provide a basis for a finding of the occurrence of an accident, even under the most liberal interpretation of the statute.

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


text:
    VOSS v. ROACH.
    No. 7163.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Truett L. Scarborough, of Ruston, for ■appellant.
    McBride & Goff, of Ruston, for appellee.
   HARDY, Judge.

This is a suit for the recovery of the sum of $350.00 paid by plaintiff to defendant as consideration for the purchase of certain timber on the property then owned by defendant. Subsequent to the sale of the timber defendant sold the property to a third party, neglecting to except the timber in the act of conveyance.

The facts, which are undisputed, are that plaintiff, J. P. Voss, doing business under the name of J. P. Voss Lumber Company, by written instrument dated .March 2, 1943, purchased all the standing and growing timber eight inches in diameter and up on a certain eighty-acre tract of land in Union Parish, Louisiana, owned by defendant, Mrs. Clay Roach. The consideration set forth in the agreement was the sum of $350.00 in cash, receipt of which was acknowledged. By an act of conveyance dated October 2, 1943, the defendant, Mrs. Clay Roach, sold, conveyed and delivered the same tract of land to one W. L. Sones. This conveyance contained no-reference to the previous sale of the timber on the tract of land conveyed. Under the terms of the timber deed plaintiff was given a period of one and one-half years within which to remove the timber purchased. The timber deed was not recorded nor did plaintiff make any attempt to cut and remove the timber until after the execution and re-cordation of the deed from defendant to Sones, at which time Sones refused to permit plaintiff to cut and remove the timber, and claimed ownership of the same by reason of his purchase of the property from defendant. Upon the development of this contingency plaintiff was compelled to repurchase the timber from Sones,' in the course of which transaction he paid the sum. of $350.00 cash in consideration thereof. This action was instigated for the purpose of recovering the sum of $350.00, representing the amount paid out by plaintiff for the timber purchased from defendant, and an additional sum of $100.00 as attorney’s fees.

Defendant filed an exception of no right or cause of action based upon plaintiff’s failure to affirmatively allege a demand on defendant for delivery of the timber, that is, the failure to place defendant in default. The exception was overruled and after trial on the merits there was judgment in favor of plaintiff in the amount of $350.00, with interest and costs, from which judgment defendant has appealed. Plaintiff has answered the appeal in this Court praying the amendment of the judgment to the extent of awarding an additional amount of $100.00 claimed as attorney’s fees.

On appeal defendant re-urges the contention that plaintiff’s demand for recovery is barred by reason of his failure to put the defendant in default, citing Civil Code, Article 1912, and numerous cases in support of this contention.

We find no merit in this claim. The law does not require a putting in default when such action would be a vain, futile and useless gesture; Robinson v. Clark, 20 La.Ann. 384; New Iberia Sugar Co. v. Lagarde, 130 La. 387, 58 So. 16. Under the facts in this case defendant had actively breached her contract and agreement with plaintiff, and had placed it beyond her power to carry out the said contract. It is therefore obvious that by her own action she put herself in default to such extent and degree that any demand on the part of plaintiff would have been a waste of time and effort. The facts in the case of Hart v. Adler, 19 La.Ann. 301, which case is cited in support of defendant’s contention, are clearly at variance with the facts in the instant case, and the' holding of the Court therefore is not applicable.

The only other issue made by defendant is that plaintiff’s loss is due to his own negligence in failing to record the timber deed given by defendant. It is well established that the negligence, carelessness and laches of a party in failing to seasonably record an instrument cannot be interposed as a defense by the vendor of property who, by his own act, has been guilty of depriving such party of title. Clark v. O’Neal, 13 La.Ann. 381; Boyer v. Amet, 41 La.Ann. 721, 6 So. 734; Whitten v. Monkhouse, La.App., 29 So.2d 800.

The only remaining question before us concerns the right of plaintiff to the allowance of attorney’s fees as urged in the answer to the appeal herein. Counsel for plaintiff rely upon the authority of that part of Article 2506 of the Civil Code which provides for the recovery of “all the costs occasioned, either by the suit in warranty .on the part of the buyep, or by that brought by the original plaintiff”, and cites the case of Boyer v. Amet, supra.

We find no reference in the cited case to an allowance of. attorney’s fees* nor do we interpret the codal provision, as above quoted, as authorizing the recognition of attorney’s fees as an element of damages. To the regretful knowledge of attorneys there is abundant authority to the effect that fees are not allowable as an element of damages except in those rare instances in which they are specifically granted by law.

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


author: KENNON, Judge.

text:
    BOYKIN v. NICHOLS MOTOR CO. et al.
    No. 7126.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    C. Elliott Thompson, of Monroe, for appellants.
    James H. Trousdale, Jr., of Monroe, for appellee.
   KENNON, Judge.

Plaintiff filed this suit under the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix, § 901 'et seq., for the return of $447.00 excess over the maximum legal price paid to defendants for a 1940 Ford automobile. He also prayed for triple penalties and for $200.00 attorney’s fees.

The answer admitted the sale of the 1940 Ford automobile and set forth that the price was the legal maximum of $796.00, represented by $100.00 cash and a'trade-in allowance of $866.00 on a 1940 Chrysler automobile, $700.00 of this $866.00 being used to pay a note held by the finance company and the balance of $166.00 being applied on the purchase price of the Ford; the remaining $530.00 of the purchase price being financed by plaintiff with a finance company.

The answer further set forth that a few days before the sale of the Ford automobile they had sold this Chrysler automobile to plaintiff; had received in part payment the check for $613.00 which was not paid when presented to the bank upon which it was drawn and that subsequent to the presentation of this check, plaintiff issued a new check for the same amount and that this new check and the amount it represented “pertained to and was the result of the sale of the 1940 Chrysler automobile and formed no part of the consideration involved for the Ford sale; that each were distinct, independent and separate transactions.”

The District Court rendered judgment in favor of the plaintiff for the $447.00 alleged to have been overpaid and for $75.00 attorney’s fees.

The defendants filed a motion for a new trial on the ground that the judgment was contrary to the law and evidence. ■ The plaintiff filéd a motion for a rehearing on the ground that he was entitled to the penalties as provided by law. Both motions were overruled. Defendants appealed. Plaintiff answered, asking that the judgment of $447.00 be tripled and that the amount allowed for attorney’s fees be increased from $75.00 to $250.00.

The record establishes the following facts. On March 29, 1946, plaintiff purchased from the Nichols Motor Company a 1940 Chrysler for $1313.00 (including $13.00 sales tax). He gave them his check for $613.00 and financed $700.00 through fifteen monthly payments. After- experiencing continued mechanical difficulties with the car, he and a friend, Thomas Pierce, drove down from their home in Bastrop, Louisiana, to Monroe for the purpose'of returning the Chrysler to Nichols Motor Company. It was necessary to drive the Chrysler from Bastrop to Monroe in low gear and the Nichols Motor Company requested thát the car be left at the Olcott-Stone garage.

Plaintiff had stopped payment on the $613.00 check given as the cash portion of the purchase price and defendants agreed to -the recission of the sale provided he. would pay whatever charges the Commercial Securities Company, Inc., demanded for a cancellation of the installment contract. Settlement with the Commercial Securities Company was effected by plaintiff’s payment to them of $25.00 as shown by a receipt in the record, and defendants’ return of the $700.00 they had received -for plain-tiff’s note.

After the settlement had been made by the Commercial Securities Company, plaintiff’s companion, Thomas Pierce, went to the bus station and purchased two tickets to take plaintiff and himself back to Bastrop.

Plaintiff returned to the Nichols Motor Company to secure the return of his check for $613.00 upon which he had instructed his bank to stop payment. It happened that the defendant, Curtis Nichols, was away from his place of business and while waiting for Nichols’ return, plaintiff noticed a lady drive a 1940 Ford automobile onto defendants’ secondhand lot and made inquiry concerning its sale. He was informed that they had allowed- $1250.00 for the Ford on a trade-in. Plaintiff, after trying the Ford out, agreed to purchase it for $1243.00, represented by a new check for $613.00, a postdated check in the sum of $75.00, $25.00 in cash and a credit balance of $530.00 financed through the Commercial Securities Company.

The bill of sale on the Ford automobile is dated April 10, 1946, and shows a “previous deposit” of $796.00, cash $100.00, equity on 1940 Chrysler $166.00, and a balance of $530.00 payable in fifteen monthly payments, Apparently in an effort to dissociate the Ford sale in time from the return of the Chrysler, the defendants typed out the $613.00 check for plaintiff to siguí showing a date of April 16, 1946, instead of April' 10th, the day on which the sale was made. However, all of the facts and circumstances support the District Court’s findiiig that, the actual consideration for the Ford automobile was the $613.00 check, the $75.00 check, $25.00 in cash and $530.00 financed through the Commercial Securities Company. We therefore conclude that plaintiff paid' $1243.00 for the 1940 Ford automobile, $447.00'of which was over and above the maximum price fixed by regulations under the Emergency Price Control Act of 1942.

The learned District Judge declined to allow double or triple penalties for the reason that plaintiff was aware of what was being done in the whole transaction. There is no provision in the Act freeing a used car dealer from liability when the overcharge is known to the purchaser and where the overcharge has been established, this Court has uniformly assessed the penalties provided in the Act. McKellar v. Sapaugh Motor Co. et al., La.App., 31 So. 2d 233. Foster v. Tony Maniscalco, La.App., 34 So.2d 672.

For the reasons assigned, the judgment appealed from is amended by increasing the award of $447.00 to $1341.00 and by increasing the award for attorney’s fees to $200.00, and, as amended, it is affirmed, with costs.


author: TALIAFERRO, Judge.

text:
    JAMES v. THOMPSON.
    No. 7073.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    McIntosh, Sims & Hester, of Oak Grove, for appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellee.
   TALIAFERRO, Judge.

Plaintiff was knocked down and injured when struck by a coal car, at the time being backed by defendant’s locomotive, as he was in the act of crossing defendant’s house track close to its depot in the Town of Oak Grove, Louisiana. He instituted this suit against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover damages because of his injuries, which he accredits to the gross negligence and carelessness of defendant’s agents and employees.

The material facts of the case are not in serious dispute. At about the hour of 1:30 P.M. November 2, 1945, plaintiff left his home, some distance west of the depot and house track, and proceeded easterly with the intention of transacting some business in the Town of Oak Grove. He quit the street that leads southerly across the street that traverses the main business area of the town, and entered upon a well beaten' pathway that led easterly from said street across the railroad property, south £>f the depot. At this time, the coal car, then detached, was across the path and blocked direct travel beyond it. Plaintiff turned south along the side of the car, the southerly and of which, we are convinced, although there is some dispute over the question, extended a few feet below the north end of a cotton platform five or six feet high, parallel to and west of the house track. The-space between the side of the car and the platform was not over 16 inches. , This clearance was reduced by some three inches by braces and a ladder attached to the side of the car. It was quite difficult for a man of plaintiffs size to pass through the space; in fact, he could only do so sidewise. As plaintiff cleared the corner of the car and was in .the act of stepping upon a cross-tie,' preparatory to Crossing the track, a train of cars backed from the north, coupled with the coal car and shoved it slowly forward about one-half its length. It struck the left side of plaintiff’s body and knocked him a few feet forward and under the platform.

At the time of the accident there were assembled on the railroad yard, south of the locus of the accident, many people and vehicles of various kinds in which had been hauled potatoes to be loaded into box cars then being switched over the main and house tracks and spotted at convenient places.

Plaintiff charges that the coal,car was violently contacted and pushed forward by the train without any signal or warning of the intention to do so; that the locomotive, at the north end of the train, consisting of twelve box cars, was not visible to plaintiff and due to a curve in the house track easterly, above the depot, his presence was not known to the operatives of the train; that the movement of said car and train was effected without there being on the west side thereof any trainmen to apprise plaintiff or any other person desiring to travel over said path, of the purpose so to do; that the omission to protect the situation then and there, and the sudden and violent pushing forward of the said detached coal car, in the manner and under the then existed circumstances, was negligence and the proximate cause of the accident ; that because of the presence 'of so many people and vehicles engaged in po-tatoe- loading, the duty -devolved upon defendant and its servants to exercise the utmost care and prudence in switching its cars at that time.

Defendant denies that plaintiff was injured from the' negligence of its agents and employees, but, on the contrary, affirms that the operation of its train at the time and place of the accident was proper, careful and efficient; that plaintiff, who was then aged seventy-seven and afflicted with infirmities of sight, hearing and judgment, without defendant’s knowledge, permission or consent, chose to walk between the cotton platform and defendant’s house track, in disregard of his own safety, while there were available to him other and safe routes to his destination, one of which was over defendant’s property; that defendant’s agents and representatives had no reason to think that any one would endeavor to cross its premises by the unsafe and hazardous route adopted by the plaintiff, and therefore, no duty rested upon them to guard or protect said route.

In the alternative, employing the above related acts and actions of the plaintiff as a predicate therefor, defendant pleads contributory negligence on his part in bar of recovery by him.

Plaintiff appealed from judgment that rejected his demand and dismissed his suit.

In 1941 plaintiff suffered a cerebral hemorrhage which resulted in permanent disability to enunciate words. For this reason he did not testify in his own behalf. He was seventy-seven years old when injured.

The path that was blocked t by the coal car was freely used by pedestrians as a short cut to the business section of Oak Grove. Although it traversed defendant’s property from west to east, crossing both the main and house tracks, the record is barren of evidence indicating that any objection or protest had been registered by defendant’s officers and/or agents against this practice.

In going upon and across defendant’s premises, plaintiff was acting solely for his own Convenience and in his own interest. The railroad company was to no extent concerned with his mission, although he had the implied permission of the defendant to cross its premises at that place. It would seem clear, in view of the above related facts, that plaintiff’s status was not that of a trespasser while traveling the well beaten pathway, but we are not certain' this status was not acquired after he left the pathway and chose to follow the unsafe and hazardous route between the car and the platform. Surely, by so doing, he exceeded the tacit permission of which he was availing himself. 38 Am.Juris. p. 767, § 104. Defendant contends that if not a trespasser while on its premises, plaintiff surely was a gratuitous licensee. He was not an invitee. So far as concerns plaintiff’s chance of recovery, it is immaterial whether his status was that of trespasser or licensee. We shall accept his status as that of a licensee, discuss and dispose of the case on that premise. However, there is very small distinction between the two as regards the duty of the owner toward them.

44 Am.Juris. page 642, § 425, defines a licensee as: “a person who for his own convenience, pleasure, or benefit, enters upon the property of another pursuant to the license or implied permission of the owner.”

In discussing further such status, it says :

“Accordingly, it is held that persons having no invitation to go upon railway tracks, but who walk thereon for their own convenience, are mere licensees, taking existing conditions as they find them, and cannot require the railroad company to protect them from dangers which are as apparent and open to their own observation as to the company.
* * * * * *
“Against a bare licensee, a railroad company has a right to run its trains in the usual way, without special precautions, if the circumstances do not of themselves give warning of his probable presence, and he is hot seen until it is too late.
* =¡= * * * *
“The only duty of the railroad company toward him is not covertly to alter the property so as to create a peril which is not obvious to or to be expected by the user, and to take reasonable care, where award of his presence, to prevent injury to him after knowledge of impending danger, and not to inflict wilful or wanton injury.”

The record unquestionably establishes that plaintiff was not injured from any wilful or wanton, act of defendant’s agents and representatives.

One of the brakemen who had been protecting the crossing south of the depot was signalled to proceed up the house track and attend to the coupling of the train with the detached coal car. On his way up he observed conditions ab,out the south end of the coal car and did not see plaintiff or any other person thereabout. Naturally, he concluded that it was safe to push the coal car down the track. In so doing and in giving no further attention to conditions about the south end of this car, he acted within his rights as an employee of the railroad company. No reasonable person would have for a moment thought that any adult would endeavor to pass from east to west by squeezing through the narrow space between the car and the platform. The principle applicable to this state of facts is clearly stated in § 453, p. 6.81, 44 Am.Juris, as follows: “Trains Moving Backward or on Wrong or Unusual Track. * * * If, in view of the place and time of the accident, the railroad company is under no duty to anticipate the presence of persons on its tracks, the circumstance that the engine or train is run backward and without a lookout does not constitute negligence.”

Plaintiff’s presence was unknown to defendant’s agents. They were at their posts of duty on the east side of the train and below, giving and receiving signals needful to efficient switching. He approached from the west, covering the 35 feet from the street to the coal car and then the additional 20 feet or about, to the point where injured, without any of defendant’s servants .having seen him. Surely, it would be unreasonable to contend that defendant at the time should have maintained two lines of operatives for the protection of licensees and trespassers on the premises, who would not, for their own safety and welfare, employ ordinary care.

We are unable to perceive wherein the defendant was negligent or careless to any degree in the operation of its train.

But, should it be granted arguendo that we are in error in this respect, certainly plaintiff’s own contributory negligence precludes recovery by him.

There was open to plaintiff at his left, a safe route across defendant’s ground. By turning to his left and going 25 feet around the north end of the coal car, then to his right for the same distance, he would have again found himself upon the pathway.

Plaintiff was, of course, well acquainted with the physical surroundings about the depot. He must be held to have known that switching operations were then in progress and that cars would be spotted on the house track into which the large quantities of potatoes then on the ground would be loaded. As he turned'south from the path the' referred to crowds and vehicles were in plain view of him, and had he looked to his left before turning south he would have seen not far away a train of box cars, many hundred feet in length to which was attached a locomotive. All of this should have impressed him with the danger and hazard to which he would expose himself in proceeding as he did. He should have known, and doubtless did know, that the detached car would soon be moved. He acted at his own risk and peril. It is shown that throughout switching operations the bell of the locomotive constantly rang, although, being some distance away, several witnesses did not hear it.

The syllabus in Archey Settoon et al. v. Texas & Pacific Railway Company, 48 La.Ann. 807, 19 So. 759, correctly reflects the law that perfectly fits this case. It reads:

“Where one goes on premises by implied permission, he does so at his own risk, assuming the responsibility of all risks incident to the place.
“Where there are two avenues of travel, and the more dangerous one is selected, the party injured cannot recover, if the injury inflicted was due to the risk incident to the route selected. The traveler assumes all risks in such cases.”

Many more cases upholding this principle could be cited. Plaintiff cites and relies upon the following cases: Williams v. Missouri Pacific Railroad Company, 155 La. 349, 99 So. 286; Ryan v. Louisiana Railway & Navigation Company, 146 La. 40, 83 So. 371; Lampkin v. McCormick, 105 La. 418, 29 So. 952, 83 Am.St.Rep. 245; Downing v. Morgan’s Louisiana & Texas Railway & Steamship Company, 104 La. 508, 29 So. 207; Maher v. Louisiana Railway & Navigation Company, 145 La. 733, 82 So. 872.

The accidents involved in the Ryan, Lampkin and Maher cases occurred at street crossings in cities, where pedestrians had a perfect right to be. The accident in the Downing case occurred in the Village of Berwick, Louisiana, in the nighttime. The deceased was run over and killed by the defendant’s backing train while he was attempting to cross the track at a public crossing. There was no light on the rear end of the train and no trainman was stationed at the crossing to warn pedestrians of the train’s approach. In the Williams case a seven year old girl was struck while crossing the track on a path used by the public generally, to the knowledge of the defendant. The train had been motionless near the crossing and was suddenly moved forward without a signal of any sort and without the crossing being protected by the railroad company.

All of these cases are easily differentiated in their facts from the case at bar.

Lastly, plaintiff invokes the doctrine of the last clear chance in its effort to fix responsibility for the accident and its results upon the defendant. The facts preclude application of this principle of law. Defendant’s agents and employees did not see the plaintiff in a position of peril, and -we have held that they violated no duty to him in not seeing him before he was injured.

Plaintiff’s counsel emphasize the fact that defendant’s train was being operated in the midst of a populous area, the town of Oak Grove. This is true, but it cannot be overlooked that at the same time the switching operations, except when crossing the street south of the depot, were exclusively upon defendant’s own yards and property and the accident occurred thereon.

For the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., concurs in the decree.


text:
    MAYES v. BLACK.
    No. 7141.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    George Wear, of Columbia, for appellant.
    L. L. LaCroix, of Columbia, for appel-lee.
   KENNON, Judge.

Plaintiff in an original and supplemental petition alleged that he, on February 8, 1946, sold defendant a water pump at a price of $200.00, on which defendant paid on July 9,'1946, the sum of $50.00 and that defendant was further indebted to him for shop work amounting to $50.50; that this amount of $200.50 was subject to a credit of $22.51 for lumber delivered by defendant, leaving a net balance due plaintiff of $177.99.

Defendant in his answer admitted the delivery of the pump, but alleged that the price of $200.00 was to be paid “after view and trial;” that the pump, after installation, did not serve its purpose and hence the contract of sale was never completed.

Becoming plaintiff in reconvention, he alleged that plaintiff had borrowed $50.00 from him in July, 1946; that he had delivered to plaintiff lumber worth $30.90 and that plaintiff had borrowed and kept in his possession a saw-switch, a 32" mill saw, and saw mantle, of a total value of $128.85, which he had refused to return despite repeated amicable demand; that as a result of plaintiff’s action in keeping defendant’s property, he had lost four days time in the operation of his mill, which he valued at $20.00 per day.

Defendant set up as a further item of damages the wages of his employees in installing the allegedly defective pump and other expenses connected with its attempted use. Defendant’s counsel in brief has abandoned his claim for these; items and they need not he further discussed.

After trial, the District Court rendered judgment in favor of plaintiff and against defendant for $40.75. From this judgment, defendant prosecutes this appeal.

No written reasons for the judgment are in the record. Counsel for defendant filed a brief in which the following information is contained:

'“Judgment was rendered in favor of appellee in the sum of $40.-75. The judgment was -detailed by the trial judge in his ■oral opinion as follows, to-wit:
Credits for plaintiff-appellee
Sale price of pump $200.00
Charges for repair work 50.50
Total $250.50
Credits for defendant-appellant Loan to appellee $ 50.00
Lumber sold and delivered to ap-pellee 40.90
Property of appellant converted to his use by appellee 128.85
Total ' $209.75”

Counsel for plaintiff has filed no brief in this Court, although certificate of counsel for defendant shows that he made timely and personal delivery of his brief to ■opposing counsel.

The record discloses that plaintiff .and defendant had been long time friends, neighbors and associates. The plaintiff ■operates a repair and machine shop near •Columbia, Louisiana. Defendant is the •owner and operator of a small sawmill at Grayson, Louisiana, less than three miles distant. The record is clear that arrangements were made between the parties for the installation of a pump, which plaintiff had used in a water well drilling operation .and for which he had paid $200.00, at defendant’s mill for the purpose of washing mud from logs prior to their manufacture into lumber. It is also clear from the :record that the pump never did operate successfully nor perform any service of value to the defendant. .Plaintiff’s explanation of the trouble was that defendant used a two inch- pipe- to connect the water to the pump instead of a three or 'four inch connecting link and that he failed to install a foot valve, which would have cost four to six dollars. The record also shows that plaintiff received $50.00 from defend-ant several months after the pump was installed. Defendant testified that this was a' loan made to plaintiff at his request. Plaintiff testified that the $50.00 was paid on the purchase price of the pump. Defendant admitted a separate item of $2.00 on the total of $50.50 claimed for repairs. Plaintiff’s testimony -supporting the remainder was rather general and indefinite. However, the record supports the finding of the District Court that the pump was purchased and the repair work doné, and also defendant’s contention that the lumber was delivered to plaintiff as set forth in the answer. ■

We find that plaintiff held defendant’s equipment in the total value of $128.-85 and refused to return same “until he had a settlement” with defendant. The plaintiff had a right to retain possession of the equipment until his legitimate charges for repair work were paid. However, he was without right in refusing to deliver possession of defendant’s sawmill equipment until he received a settlement on the water pump. Defendant claims a total of $80.00 for loss of time in the operation of his mill due to this unjustified withholding of his equipment by plaintiff. We have concluded that $60.00 would be a fair allowance for this damage.

Since, according to the information contained in defendant’s brief, no allowance was made to defendant for this item of damage, the effect of its allowance would be to change the account between the parties from the sum of $40.75 due plaintiff to the amount of $19.25 due to defendant.

The judgment appealed from is set aside and judgment is now rendered in favor of the defendant, as plaintiff in re-convention, and against plaintiff, defendant in reconvention, in the sum of $19.25. All costs to be borne by plaintiff.


author: McBRIDE, Judge.

text:
    POREA v. MOSES.
    No. 18809.
    Court of Appeal of Louisiana. Orleans.
    April 26, 1948.
    Rehearing Denied May 10, 1948.
    Writ of Certiorari Denied. June 15, 1948.
    William J. Daly, of New Orleans, for plaintiff and appellant.
    Arthur Landry, of New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Involved here is an appeal from a judgment of the First City Court of New Orleans, rendered in an ejectment proceeding brought by a landlord against- his tenant. The matter was tried de novo in this court before the writer of this opinion, and a statement of the case and the facts are as follows:

“Plaintiff, James C. Porea, the owner of the lower apartment at 3909 Thalia Street, which had been leased to defendant, Edward Moses, under á month to month verbal arrangement at a rental of $16.00 per month; brought this rule in the lower court on August 11, 1947, against Moses seeking possession of the leased premises upon the ground that plaintiff, in good faith, desired to recover possession, for his immediate and personal use and occupancy as housing accommodations, and for the further reason that a- substantial amount of repairs and remodeling are necessary to protect and conserve the property, which work could not practically be done while the defendant occupied the premises. As a predicate for his rule, on July 16, 1947, plaintiff had served upon defendant a notice directing him to vacate at the end of the then current month, August 7, 1947, and the grounds upon which plaintiff’s rule for possession is based were specifically set forth in the notice. The notice was given in accordance with R.S. § 2155, as amended (Dart’s § 6597), which requires that the landlord desiring possession of the leased premises in a situation such as this, shall give to the tenant a- written notice to vacate, ten days before the expiration of the month.
“The usual rule to show cause was issued and served upon defendant, and at the trial thereof defendant’s sole defense was that plaintiff was not in good faith, in bringing the possession suit. After a trial in the court below there was judgment in defendant’s favor dismissing the rule, from which judgment the present appeal has been prosecuted by plaintiff.
“The matter was first heard in this court on October 13, 1947, and the judgment appealed from was affirmed. However, upon proper application made by plaintiff-appellant, a rehearing was granted, and the matter came on for trial on rehearing on April 22, 1948.
“Plaintiff testified to the following facts at the trial on rehearing, and his testimony is uncontradicted:
“The premises 3909 Thalia Street is a duplex dwelling containing an upper and a lower apartment. . The defendant occupies the lower apartment. Plaintiff and his 'wife, together with their daughter, her husband and their child, occupy the upper apartment, which consists of four rooms and a kitchen. Plaintiff’s wife is afflicted with rheumatism and encounters difficulty in negotiating the stairs when going to or leaving the upper apartment. Plaintiff claims that the physical condition of his wife makes it absolutely necessary, in the interest of her comfort, that they occupy the lower apartment. It is intended that when he is able to get possession of the lower apartment, he and his wife will use the same, and that their daughter, her husband and their child will continue to occupy the upper apartment. He stated further that the upper apartment, • with the five persons now living in it, is crowded and uncomfortable.
“Plaintiff purchased the property in about 1943. He is a bricklaying subcontractor, and has had much experience with buildings and construction. He stated that the premises 3909 Thalia Street are badly in need of repairs. He particularized the repairs and remodeling necessary, and to state a few of them: the roof n.eeds replacement; the foundations in the front part of the house have sunk about nine inches; the chimneys must be taken down; about one-third of the interior plastering must be removed and replaced; the brick columns supporting the front pqrch are weak and dangerous, and the foundations of the house are out of line. He attributes the condition of the house to ‘settling’ and testified that the repairs could not be conveniently made while the lower apartment was occupied. He estimates that a contractor would charge about $1,600.00 for the work, and he contemplates doing it himself, as soon as the lower. apartment is vacated, and after the completion of the job it is his intention to take over' possession of the lower apartment.
“The only defense witness was the defendant himself, and he stated that it was his opinion that plaintiff lacked good faith, and that the extensive repairs and remodeling are not actually necessary.
“Were it not for the hereinafter mentioned legal point raised by counsel for defendant, I would have reversed the judgment appealed from and granted to plaintiff the relief which he seeks, as I am convinced of his good faith and believe that the premises are in a bad physical state, and that the repairs, alterations and remodeling are necessary and could not be safely or conveniently made so long as Moses continues in the lower apartment.
“The legal point made by defendant upon the trial on rehearing, which I have above referred to, is that plaintiff cannot be successful in his eviction suit because defendant had never been served with a sixty-day notice to vacate the premises before the suit was filed.
“Counsel concedes that the notice to vacate, upon which this suit is predicated, was in accordance with the provisions of the Housing and Rent Act of 1947 (50 U.S.C.A.Appendix, § 1881 et seq.), which was in force at the time the proceedings were instituted, and though conceding that the notice was proper under said act, he contends that the Housing and Rent Act of of 1948 (Pub.Law 464, 80th Congress, 2d Sess.), which became effective on April 1, 1948, and which amended the former act, contains the proviso, that a sixty-day notice to vacate is necessary to support any action (including pending actions) brought by a landlord seeking possession of controlled hous.ing accommodations. In other words, it is counsel’s contention that the 1948 amendment to the act contemplated that a sixty-day notice to vacate must precede the filing of a possession suit, and that the act is retrospective and affects this present suit which had been filed in the lower court on August 11, 1947.
“Since the matter in dispute involves an action by a landlord to eject his tenant, a verbal month to month lease at a monthly rental of less that $100.00 being involved, when this appeal was lodged in this court the matter was assigned for trial de novó before only one member of the court. When it came before me on a rehearing, and the legal question respecting the sixty-day notice was advanced by defendant, I realized that this question was of great general interest and importance, and is also involved in many cases of similar nature now pending in the First City Court of New Orleans, and perhaps also in some cases which have been appealed to and lodged in this court. Accordingly I have referred the matter to the entire court, having made a statement of the case and given my finding of facts upon which the court might premise its opinion on the question of law involved.”

The dwelling of which possession is sought is a controlled housing accommodation and is governed by the Federal statutes pertaining to evictions. Section 209 (a) of the 1947 act, 50 U.S.C.A.Appendix, § 1899(a), provides that no action or proceeding to recover possession of any controlled housing accommodations shall be maintainable by any landlord against any tenant in any court, so long as the tenant continues to pay the rent to which the landlord is entitled, unless:

“ * * * (2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations;
* * * * * *
“(4) the landlord ’ seeks in good faith to recover possession of such housing accommodations for the immediate purpose of substantially altering, remodeling, or demolishing them and 'replacing them with new construction, and the altering or remodeling is reasonably necessary to protect and conserve the housing accommodation's and cannot practically be done with the tenant in occupancy, and the landlord has obtained such approval as may be required by Federal, State, or local law for the alterations, remodeling, or any construction planned; * *

It is to be noted that plaintiff claims-possession of the premises upon the above two grounds. The 1947 Housing and Rent Act makes no provision for the type of notice to vacate to be served upon the tenant, and the matter of the notice is left to the regulations and laws of the various states. The notice in this case, at the time it was served, met all the requirements of the 1947 act, having been in conformity with R.S. § 2155, as amended.

The 1948 amendment to the Housing and Rent Act likewise permits a landlord to obtain possession of leased housing accommodations on the two grounds above mentioned. But the amendment, in Section 209(c), contains the following provision:

“No tenant shall be obliged to surrender possession of any housing accommodations * * * until the expiration of at least sixty days after written notice from the landlord that he desires to recover possession of such housing accommodations ^ ^ .

The quoted provision of the 1948 act, counsel for defendant contends, contemplates that a notice to vacate, allowing the tenant sixty, days within which to do so,, must be served, and that the sixty-day period must have elapsed before the proceeding for eviction can be instituted, and that whereas such notification had not been given to the tenant in this case, plaintiff is not entitled to maintain his action. Counsel has not favored us with argument,, either verbal or in brief, supporting his-contention as to his construction of the 1948 amendment.

A- careful reading of the above quoted ■ proviso of the act indicates that counsel endeavers to place a construction on the language used therein not contemplated ■ by the Congress. If it was the lawmakers’ intention to require that a. sixty-'day notice must be served upon the tenant, and that an ej ectment suit. cannot be brought until the sixty-day period had expired, unequivocal language to that effect would undoubtedly have been employed. The section in question states that “no tenant shall be obliged to surrender possession * * * until the expiration of at least sixty days after written notice * * (Italics ours.) It seems clear to us that the word “obliged” as used is a synonym of the words “compelled” “forced” and “required.” The plain and reasonable meaning is that no tenant can be evicted until sixty days have expired counting from the date of the written notice, and that in any suit the judgment of eviction will not and cannot become operative or executory until sixty days after the notice to vacate had been served. There is nothing in the section which prohibits a landlord from bringing his proceeding against a tenant, after the notice required by local law, and all that the section intends is that under no circumstances can the tenant be ejected until sixty days after the vacate notice was served.

We have been favored by .the New Orleans Area Rent Attorney with a copy of an opinion rendered by the Office of the Housing Expediter, Office of Rent' Control, at Dallas, Texas, dated April 8, 1948, and it is interesting to note-that his construction of Section 209(c) is identical with ours. We quote from the opinion that part thereof which is pertinent here:

“We have discussed the general question of the meaning of .Section 209(c) of the amended Rent Act insofar as the sixty-day notice period is concerned, and it appears from our telephone conversation with the National Office that our position on this question is that a tenant is entitled to hold posséssion of premises for a period of at least sixty days after the tenant has received written notice to move from the landlord, irrespective of whether or not a judgment was in existence on April 1, 1948. It appears that the new Regulations will not provide that a copy of the written notice to the tenant from the landlord must be filed with the area office. As a matter of fact, it appears that the new Regulations will not contain an eviction section.
“It appears that insofar as the Housing and Rent Act is concerned it is only necessary that the tenant receive at least sixty days' written notice prior to the time when he will be obliged to surrender possession of a housing accommodations. This notice could be given prior to April 1, 1948, and the Federal law will not be violated if the tenant is not obliged to deliver possession until the expiration of sixty days after the tenant has received written notice. Suppose written notice was received by a tenant on January 1, 1948, that the landlord wished possession of a housing accommodations for one o-f the purposes specified in the 1948 Act. The sixty-day period would begin to run after January 1, 1948, and the tenant could be immediately evicted after April 1, 1948, insofar as the Federal Law is concerned.
“It is to be noted that under the above set out interpretation a judgment in a state court could not under the Federal Law force a tenant to deliver possession of a housing accommodations until after the expiration of the sixty-day notice provided in the Act. Therefore, a state judgment evicting a tenant could not be enforced on or after April 1, 1948, unless sixty days had passed since written notice was given to the tenant. * * * ”

The Housing Expediter is charged with the administration and enforcement of the Housing and Rent Act. It is well settled that a contemporaneous construction placed upon a statute by executive or administrative officials is entitled to great weight. Of course, courts are not bound by their interpretations, but such opinions are very persuasive and are often called upon by courts when the construction of a statute is at issue.

In the instant case, Moses whs notified to vacate on July 16, 1947, and thé rule was instituted on August 11, 1947. More than nine months have elapsed since the notification to vacate, and we fail to see that any provision of the 1948 amendment to the Housing and Rent Act requires that a further delay be afforded to defendant. It would be unreasonable to say that it was the intention of Congress to annihilate all pending ejectment suits by requiring landlords to proceed all over again, commencing with the giving of a sixty-day notice to vacate. There can be no doubt that it was the intention of the lawmakers to grant a little more grace to defendants in possession suits by making certain in all cases, including pending actions, that no tenant would be dispossessed before sixty days had elapsed after the written notice to vacate.

For the reasons assigned, the original decree of this court is recalled, and the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that plaintiff’s rule be made absolute, and the defendant is ordered to deliver plaintiff possession of the leased premises within the time prescribed by law; defendant-appellee is to pay costs of both courts.

Original decree recalled; judgment of trial court reversed.


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    PAPPAS v. ROBERTS.
    No. 7075.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Fink & Fink, of Monroe, for appellant.
    W. T. Holloway and William L. Bell, both of Jonesboro, for appellee.
   HARDY, Judge.

Plaintiff instituted this suit for the collection of the sum of $175.00 represented by a check given to plaintiff by defendant in consideration of an exchange of automobiles between the parties, plaintiff and defendant.

In answer to plaintiff’s petition defendant denied the allegations thereof, and, assuming the position of plaintiff in recon-vention, made demand for the recovery of $500.00, consisting of cancellation of the amount of $175.00 represented by the check sued on and the further sum of $325.00 as reduction of the purchase price of an automobile warranted by plaintiff, which warranty had been breached.

After trial there was judgment rejecting the demands of plaintiff and further judgment in favor of defendant cancelling the obligation represented by the check sued on and awarding defendant the sum of $325.00, together with interest and costs. From this judgment plaintiff has appealed.

The facts, except with reference to a few details, are not seriously in dispute. Plaintiff was the owner of a 1946 model Ford Club Coupe which he had purchased new and which had been driven some 4,600 miles, but with which he was dissatisfied for the reason that a larger car would better suit his needs in carrying employees to and from a sawmill which he operated in the vicinity of Chatham, Jackson Parish, Louisiana. On or about November 30, 1946, defendant noticed an advertisement of new cars for sale at the Pappas Motor Company, a business operated by plaintiff in West Monroe, which advertisement was published in a daily newspaper at Monroe. In response to the representations of the advertisement defendant stopped by plaintiff’s place of business and examined a 1946 Two-Door Ford Super DeLuxe automobile, fully equipped with radio, heater and seat covers. Defendant entered into negotiations with plaintiff for the purpose of effecting an exchange of automobiles and, after some negotiations, it was agreed that plaintiff and defendant would exchange the automobiles described, and, as additional consideration, defendant gave his check in the sum of $175.00.

Almost immediately after the completion of the transaction defendant’s suspicions were aroused, by reason of the revelation of certain defects in the vehicle, that in fact it was not a new car as defendant claims was represented by plaintiff. Upon close examination by defendant and by other parties, which examination appeared to confirm defendant’s suspicions, payment on the check which had been given . to plaintiff was ordered stopped. Defendant made known his complaints, with respect to the deficiencies in the automobile, to plaintiff and some slight attempts were made to remedy some of the defects, but it is definitely established that these efforts on the part of plaintiff were somewhat half-hearted and did not serve to put defendant’s car into proper condition.

The principal conflict in the evidence, as reflected by the record in this case, bears upon the representations made by plaintiff with reference to the car which he traded to this defendant. Defendant avers and positively testified that the car was represented as being new and that it was warranted as a new car by the plaintiff. Plaintiff as insistently - denies such representations and contends that he specifically limited his warranty to the' motor and that he did not represent the car as being new.

With regard to the defects and deficiencies in the automobile which defendant acquired, it is shown by a definite preponderance of the evidence that the speedometer was diconnected, parts -of the heater were missing, the motor consumed an excessive amount of oil, the tires had been changed, and there were other numerous and serious evidences of wear and tear. We are satisfied from an examination of the record that the car had been driven a considerable number of miles, and we think that the estimate of mileage in the neighborhood . of 20,000 would be approximately acceptable. And, despite plaintiff’s denials, we think the evidence definitely preponderates to the effect that he represented the car as “new”, at least to the extent of having been driven only a few hundred miles en route to his establishment in West Monroe. Nor have we experienced any difficulty in arriving at the conclusion that plaintiff did not limit his warranty solely to the condition of the motor. The following extract from plaintiff’s testimony is most revealing: “He (defendant) wanted to know about the motor, what kind of guarantee he would get on - it. I told him I would s^and behind every car I do sell. I told him this was a new car to me, that I got it at Magnolia.”

Despite plaintiff’s efforts in his testimony to restrict his warranty, we find that the record abundantly supports defendant’s contention that he made the exchange under the representation and in the belief that he was receiving a new automobile. We further -agree with the finding that plaintiff knew or should have known the condition of the car, and that he advertised and represented the vehicle as being new, upon which representations defendant relied, to his detriment.

In our opinion defendant’s right to recovery on his reconventional demand is amply justified under the provisions of Articles 2541-2545, inclusive, of the. Civil Code and cases cited in connection therewith.

Inasmuch as plaintiff disposed of the automobile, which he received from defendant in effecting the exchange, rescission of the transaction and the placing of the parties in status quo is impossible and, accordingly, the demands of defendant for the reduction of the price were properly asserted.

For the reasons set forth, we find no error in the judgment of the lower Court, and, accordingly, the same is affirmed at appellant’s cost.


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    WILSON v. GRANT.
    No. 7183.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    George Wear, of Columbia, for appellant.
    Leslie L. LaCroix, of Columbia, for ap-pellee.
   TALIAFERRO, Judge.

Trial of this case in the District Court resulted in judgment for the plaintiff. Defendant, litigating in forma pauperis, appealed devolutively to this court.. Thereafter, through appropriate proceedings in the lower court, its order authorizing defendant to litigate in this manner was set aside and annulled. A copy of the court’s order to this effect has been filed in this court. Defendant made no effort to thereafter effectuate his appeal, but, on the contrary, there is now documentary evidence in the record that makes it clear he has abandoned the appeal. Therefore, for said reasons, the appeal taken herein by defendant is hereby dismissed as having been abandoned, and he is cast for all costs.


text:
    PERDUE et al. v. JOHNSON et al.
    No. 7151.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.

      George W. Lester, of Monroe, for appellants.
    Oliver & Digby, of Monroe, for ap-pellees.
   KENNON, Judge.

This is a suit for the return of $250.00 which plaintiffs allege they paid to defendants, through their duly authorized agents, as a down payment on a lot in the City of Monroe, Louisiana, owned by defendants. The petition alleges that plaintiff, Mrs. Emma Peters Perdue, agreed to purchase a lot of ground pointed out to her by the real estate agent and paid $250.00 towards the purchase of this property; that when a survey was made, it was disclosed that defendants did not have title to the identical frontage pointed out to plaintiff by the real estate agent, and that the lot as surveyed did not include a beautiful tree on the part of the property pointed out to plaintiff as being for sale, and that there had been no agreement to purchase the property marked out after survey and described in the deed tendered to plaintiffs by the defendants.

After an exception of no’ cause and no right of action was overruled, defendants in answer admitted that the defendant, Tom Johnson, verbally requested Mr. R. B. Blanks (since ’deceased) to sell the west 122 feet of a certain lot on Jackson Street and Morris Avenue in the City' of Monroe, Louisiana, and set forth that plaintiffs agreed to purchase the lot for a total consideration of $2750.00 and paid $250.00 as part of the purchase price, and that, subsequently, plaintiff, Mrs. Perdue, refused to accept the deed and pay the balance of the1 purchase price. Defendants in answer reiterated their willingness to deliver the deed upon payment of the balance of the purchase price and in the absence of acceptance of the deed- by plaintiffs, claimed the $250.00 paid ■ had been forfeited by plaintiffs as earnest money in accordance with Articles 2462-and 2463 of the Civil Code.

The Judge of the City Court of Monroe rendered judgment in favor of plaintiffs for $250.00 against the defendant, Tom Johnson, and dismissed the suit against Mrs. Johnson.

The case is before us on appeal by the defendant who was cast.

In brief defendant’s counsel reurged exception of no cause or right of action, predicating same upon plaintiffs’ failure to allege that the contract of agency between defendant and the real estate agent was in writing, and that since a contract to purchase real estate not in writing is unenforceable, it' must follow that parol evidence is inadmissible to prove the existence of a contract' of agency between a real estate broker and an owner of real estate.

The petition sets forth that “ * * * defendants, acting through their duly authorized agents * * * entered upon the negotiation to sell * *

The above alleges the agency as a fact and is a sufficient basis to support proof of agency by competent, testimony. As far as the petition discloses, the contract may have been either oral or written. The admissibility of whatever testimony defendants may anticipate to establish this well alleged fact is not at issue on exception of no cause of action. Hence, the .exception was properly overruled.

Defendants on the trial, re-urged their objections to oral testimony to prove the agency of the real estate agent. The trial judge properly overruled that objection. The cause of action set forth in the petition was not predicated upon the enforcement of an oral sale of immovable property. The demand was essentially one for the return of money paid upon a contract in which there was - discovered a serious mistake as to the substance of the subject of the contract. There is no rule of evidence which prohibits oral testimony to prove the payment of money and to establish one’s right to the return of same because there was an error in; substance of that which was the subject of the contract whether same be personal property or immovable property.

In the answer it was admitted that the defendant, Tom Johnson, authorized the real estate agent to enter into negotiations for the sale of his lot and that plaintiffs paid $250.00 to the agent as a part of the purchase price. The answer further admitted that the defendants received $76.20 of this amount, stating, “the rest of said amount having been expended by Mr. Blanks (the real estate agent) for a survey, mortgage certificate, preparation of deed and commission to Mr. Blanks.”

In the record is a written opinion from the learned Judge of the City Court in which he found as a fact that the lot pointed out to the plaintiff and represented to her as being the lot she was to purchase contained three shade trees; that when the lot was surveyed, it was discovered that there was a wide variance between the lot pointed out to plaintiff by the real estate agent and the lot actually contained within the surveyed boundaries. The surveyed lot being considerably smaller, situated some sixty feet nearer a public restaurant, which was considered by plaintiffs as objectionable, and not containing the three shade trees — the objects which the prospective purchasers considered as the most attractive feature of the property.

The testimony establishes with more than the preponderance required that there was no meeting of minds between plaintiffs a.nd the agent of defendant as to the lot which the defendant owned and the, lot which the plaintiff, Mrs. Perdue, agreed to purchase. In the sale of a city lot, the location of the property is an important factor in determining its value. In a lot suitable for home construction, the existence of shade trees is a substantial quality. After careful examination of the testimony, we agree with the triál judge that the lot shown to plaintiffs differed from the lot found on survey by a distance of approximately sixty-five feet as to location on the street and was a considerable footage short in depth, and that the survey excluded from the lot the shade trees which were included on the property as shown to plaintiffs.

There was error both as to the substance and substantial quality of the property. Error in substance in that the surveyed lot was of less depth and error in the substantial quality in that the location was nearer to the objectionable business site and the desirable shade trees, though included in the lot as displayed, were excluded from the. lot as surveyed. Hence, the contract was invalid under Articles 1841-1845 of the Civil Code and plaintiffs are entitled to the return of the m.oney paid.

The judgment is affirmed, with costs.