author: JANVIER, Judge.

text:
    FRIED et al. v. EDMISTON et al.
    No. 19265.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Rehearing Denied June 13, 1949.
    Delvaille H. Theard, New Orleans, for plaintiffs and appellees.
    Salvador Ro-cc-aforte, New Orleans, curator ad 'hoc -for defendant and appellant.
    Mose R. Simo-neaux, New Orleans, ami-cus curiae. ’
   JANVIER, Judge.

This is an .-action to quiet title to two certain pieces of real estate which plaintiffs allege that one of them (Mrs. Una Claire Durel Fried) bought -from the State of Louisiana on May 27th, 1944, .and which they also allege 'bad been previously -adjudicated to the State of Louisiana for unpaid taxes. One of the said parcels, numbered 43, with which we -are not concerned, had previously been owned by Liberty Realty and Securities, Inc., and the other parcel, numbered 44, had -previously been owned by and assessed in the name of S. V. Edmi-s-ton. This p-ar-cel o-f land is described as follows: “A -certain portion of ground -and improvements thereon in the Third District of the City -of New Orleans, in Square bounded -by -Crete, Rear Line, Gerson Avenue and Henry Streets, designated as lot' No. 44 in Square No. 4 (P.H.) ; said lot No. 44 measures 32 feet front on Henry Street by depths of 100 feet; said property adjudicated to the State on November 7, 1931, -for unpaid taxes of 1930, in the name -of Liberty R. & S. -Co-.”

The allegation w-as made that -Edmiston was an absentee and unrepresented and that no curator had been appointed to represent him -and that, therefore, it was-necessary that a curator ad hoc be appointed. A curator ad hoc was appointed.

The suit was originally filed as a proceeding authorized by Act 106 of 1934, but while it was pending in the Civil District Court for the Parish of Orleans, the Supreme Court of Louisiana, in Doll v. Meyer, 214 La. 444, 38 So.2d 69, held that the statute may not Ibe availed of to quiet title to real estate which, having been adjudicated to the State, has been sold by the State to a private owner.

When that decision was rendered plaintiffs, by supplemental petition, alleged that the proceeding was authorized by an-d that they desired to proceed under authority of Act 38 of 1908. They also alleged that a curator ad hoc had already been appointed in accordance with the original petition, and they prayed that the supplemental petition be served on the said curator ad hoc. Mr. S. Roccaforte' was appointed curator ad hoc, and he filed answer commendably raising every possible controvertible issue.

All of these issues have been thoroughly discussed in a written opinion of the Honorable Louis H. Yarrut, Judge of Division “C” of the Civil District Court for the Parish of Orleans, who rendered judgment in favor of plaintiffs, confirming the title of Mrs. Una Claire Durel Fried to the property in question. From this judgment the curator ad hoc has appealed.

We are so thoroughly convinced of the soundness of the views which the district judge has set forth that we have decided to adopt them as our own. We could not add to them and any attempt to do so might detract from them. These reasons now follow.

“This is a proceeding in rem and not in personam. A proceeding to quiet a tax title is one in personam against the former proprietors who have been cited, but where they are unknown and are represented by a curator ad hoc, as is the case here, a judgment can have no legal effect beyond the confirmation of the tax sale so made. Roussel et al. v. Railways Realty Co. et al., 132 La. 379 [61 So. 409, 833], When first filed, this was a proceeding to confirm a tax title under Act 106 of 1934.

“Under the provisions of Act 237 ’of 1924 (as amended), Mrs. Fried, on May 27, 1944, bought from the State a portion of ground made up of two adjoining parcels (previously acquired by the State for delinquent taxes), namely, Parcel Pt. 43 and Lot No. 44, in Square No. 4, Park Heights Subdivision, New Orleans. Parcel Pt. 43 measures fourteen feet front on Henry Street and was adjudicated to the State in the name of Samuel V. Edmiston for the 1929 taxes; Lot No. 44 has been adjudicated to the State for the 1930 taxes in the name of Liberty Realty and Securities Company.
“The two former owners were cited as defendants, the Liberty Realty and Securities Company by service on its Vice-President, W. H. Talbot; and Samuel V. Edmiston, an absentee, through Salvador Roccaforte, an attorney at law, appointed by the Court.
“Judgment recognizing Mrs. Fried as owner of Lot No. 44 went by default against the Liberty Realty and Securities Company.
“While the matter was pending against the absentee, Edmiston, the Supreme Court, on November 8, 1948 (Doll v. Meyer [214 La. 444], 38 So.2d 69), decided that Act 106 of 1934 was inoperative for the confirmation of a tax title emanating from the State.
“In view of the above decision of our Supreme Court, a supplemental and amended petition was filed, in which plaintiff enlarged the averments of her original petition, -by setting forth that the property in question (Parcel Pt. 43) was vacant and that defendant, Edmiston, is an absentee, and that the validity of her title should be established under Act 38 of 1908 as against any claims or pretensions of the absentee former owner Edmiston, represented by a curator ad hoc. The curator ad hoc filed an exception of no right or cause of action, and with full reservation of said exceptions, filed an answer denying all allegations.
“The issues presented to the Court are:
“(1) Is defendant Edmiston properly represented by the curator ad hoc;
“(2) Is plaintiff entitled to a judgment recognizing her as owner, if the allegations of her original and supplemental petitions are proved?
“I hold that the defendant, Edmiston, is an absentee, since no one has been appointed to administer his affairs, and he has no agent in this State to represent him. The Sheriff’s return shows that he cannot be found.
“An action to establish a tax title to real estate, under Act 38 of 1908, is not new in our jurisprudence. Davidson v. McDonald, 131 La. 1047, 60 So. 679, is a case in point; incidentally it involved the validity of a tax title. See also Settoon v. Sharp [La.App.], 19 So.2d 342; Saucier v. [E.] Sondheimer Co., 212 La. 490, 32 So.2d 900; Veltin v. Haas, 207 La. 650, 21 So.2d 862; Wooley et al. v. Louisiana Central Lumber Co. et al., 204 La. 801, 16 So.2d 360. The pertinent part of Act 38 of 1908 reads: 1 * * * in all cases where two or more persons lay claim to land by recorded title and where neither of said claimants are in the actual possession of the land so claimed; either of the claimants may bring suit against one or all the adverse claimants, and for that purpose may join one or more adverse claimants in the same suit as defendants, to have the titles to the land adjudicated upon by the court having jurisdiction of the property, * * * and this action shall be known as the action to establish title to real estate, and the judge shall decide which of the claimants are the owners of the land in dispute, * * *.’
“Mrs. Fried claims and proves ownership of parcel Pt. 43, based on a patent from the State. The defendant, Edmiston, as alleged and proved, has a recorded title to said parcel, having purchased said property in 1926, which was sold to the State for taxes. Further, it is alleged and proved that neither the plaintiff, Mrs. Fried, nor the absentee defendant, Edmis-ton, is in possession of said parcel Pt. 43. ‘The plaintiff’s petition clearly discloses that this is a suit to try title to property under the provisions of Act No. 38 of 1908 and under the provisions of this act, in order to state a cause of action, it must be alleged that the plaintiff and defendant, neither of whom is in possession of the land, both claim the land -by record title. The very object of the suit is to determine which of these titles is superior. * * * ’ City of New Orleans v. Westwego Canal & Terminal Co., 206 La. 450, 19 So.2d 201, 202.

“Act 38 of 1908 applies to all titles without regard to their origin, tax titles or not. I hold this proceeding is properly brought under Act 38 of 1908.

“The next question is whether, in such a suit, the defendant, an absentee, whose whereabouts and existence are unknown, can be validly represented by a curator ad hoc.
“The general rule with reference to suing absentee defendants through service oil a curator ad hoc appointed by the Judge is stated in Art. 116, Code of Practice as amended: ‘If the minor against whom one intends to institute a suit has no tutor, the plaintiff must demand that an attorney at law be appointed to defend the suit. The same course shall be pursued if the person intended to be sued be absent and not represented in the State * * * or, in * * * any other suits in which an absentee may be represented by an attorney at law appointed to defend the suit, if it be made to appear by affidavit that the residence of the defendant is out of the State or unknown to plaintiff. * * * ’ See, also, Code of Practice Arts. 963 and 964, referred to later in these Reasons for Judgment.
“The averments of plaintiff’s petition to show the absence of the defendant, Edmis-ton, were carefully made (Art. 12) : ‘It is notorious in the City of New Orleans, that Samuel V. Edmiston disappeared many years ago, has never since that time been heard from, and that his whereabouts, if he be alive, are unknown. Likewise, that his heirs and their residence, if said Samuel V. Edmiston be dead, are unknown. That petitioner, despite diligent search, investigation and inquiry, has been unable to locate said former owner or any of his heirs or their residence.’
“In her supplemental petition, Paragraphs 2 and 3, plaintiff further avers:
“ ‘The residence, domicile and whereabouts of Samuel V. Edmiston are unknown to petitioners.’
“ ‘No curator of absentees (under the Civil Code) has ever been appointed for the administration of any property or estate of said absentee, and he has no known agent to take care of his property, or to represent him, in this State, and no agent to defend for his account or in his name any suits which may be brought against him.’

“These averments meet squarely the requirements of our law for .the im-pleading an absentee defendant by the appointment of a curator ad hoc. Not only do they present a case under the general provisions of the Code of Practice, but they conform to the requirements of the Civil Code (R.C.C. Art. 56), that an absentee to whom no general curator has been appointed for the administration of the absentee’s affairs and property (R.C.C. Arts. 47 to 79), shall be represented, in the defense of any suit instituted against him, by a curator ad hoc (R.C.C. Art. 56).

“Revised Civil Code, Art. 47 reads: ‘When a person possessed of either movable or immovable property within this State, shall be absent, or shall reside out of the State, * * * then and in that case, the judge of the place where that estate is situated, shall appoint a curator to administer the same.’
“Revised Civil Code Art. 51 reads: ‘So long as this curatorship continues, all suits in which the absentee is interested, shall be prosecuted by or 'against the curator.’
“Revised Civil Code, Art. 56 reads: ‘If a suit be instituted against an absentee who has no known agent in the State, or for the administration of whose property no curator has been appointed, the judge, before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit.’
“The Code of Practice also provides for the appointment of general curators to absentees (Art. 963), but when no general curator has been appointed, any person having a claim against the absentee can ask, as has been done in the present case, for the appointment of a curator ad hoc (Art. 964).
“Code of Practice Art. 963 reads: ‘Curators must be appointed to represent persons absent from the State, who have property in the State, and are unrepresented therein. Such appointment shall be made by the judge of probate of the place where the property lies. * * * ’
“Code of Practice Art. 964 reads: ‘The above provisions (for the appointment of a general curator) shall not be so construed as to prevent persons having claims against * * * a person absent, pursuing the same previous to * * * a curator having been appointed as above prescribed; but in such cases, the person claiming must in his petition, pray the court to which it is addressed to appoint a * * * curator “ad hoc” to defend the * * * absent person in the action.’ (Writer’s brackets.)
“In Inter City Express Lines v. Guarisco, Court of Appeals, First Circuit, 165 So, 727, [731], the Court referring to Derepas v. Shallus, 15 La. 371, 373 said: ‘ * * * A curator ad hoc was appointed to the defendant, under article 57 (now art. 56) of the Louisiana Code, which provides for such an appointment when the person to be sued has no agent or representative in the state; service of citation has been regularly made on this curator. It has more than once been held tnat, under our laws, such a proceeding is binding on the absentee. Louisiana Code article 57 (now 56); Code of Practice, article 116; Zacharie v. Blandin, 4 La. 154; George v. Fitzgerald, 12 La. (604) 606.’
“See also Jackson et al. v. Brewster et al., Court of Appeal, First Circuit, 169 So. 166.
“Butler v. Washington, 45 La.Ann. 279 [12 So. 356, 357, 19 L.R.A. 814]:
“ ‘ “If the absentee leaves his property without an administrator or agent; * * * in furtherance of justice, the law authorizes a curator to be appointed to represent him. There is something on which the jurisdiction of the court is based, and the judgment rendered would be within the recognized and ordinary prerogatives of the judicial power.”
# * * * # it,
“ ‘ “If, indeed, a nonresident can not be brought into a court of this state in such a case, such a cause of complaint as that propounded by the plaintiff, though well grounded in our law, would be practically remediless.”
“The likelihood that the absentee defendant may be deceased at this time so that the proceeding's are, in effect, prosecuted against his successors or heirs, presents no problem. Our Codes do not specially provide that the heirs of an absentee defendant, who is in fact deceased, will be brought into Court through the curator ad hoc who represents said absentee. In Butler v. Washington, 45 La.Ann. 279 [12 So. 356, 357, 19 L.R.A. 814], it was held: * * * such a cause of complaint as that propounded by the plaintiff, though well grounded in our law, would be practically remediless,” * * * ’ if the heirs of the absentee were not found. For, if it was necessary to prove the existence or continued life of an absentee not heard of for many years and whose whereabouts are unknown, the process of the Courts would be frustrated and justice thwarted in numerous instances.
“See Citizens’ Bank v. Marr, 111 La. 601, 35 So. 780; Siegel v. Helis, 186 La. 506, 172 So. 768.

“In Tell v. Senac, 122 La. 1040, 48 So. 448, a judgment was rendered in a partition suit involving several heirs, one of whom was a Mrs. Klein, an absentee, alleged to reside in Galveston, Texas. She was represented in the action by a curator ad hoc. But, as it subsequently developed, Mrs. Klein had died before the partition suit was filed. A year after the partition auction sale, Mrs. Klein’s daughter and sole heir filed suit to annul the partition judgment. The Supreme Court, in' denying and dismissing this suit, said:

“ ‘An absentee who is a joint owner of real property may be made a party in partition of the property by substituted service.
“ ‘The curator ad hoc represented the absentee. * * *
“ ‘Plaintiff seeks to treat the judgment .and the sale in these partition proceedings .as absolute nullities on the ground that the absentee was dead at the date that the judgment was rendered and the sale made.
“ ‘Partition proceedings are in rem. Laughlin v. [Louisiana and N. O.] Ice Company, 35 La.Ann. 1184; Wunstel v. Landry, 39 La.Ann. 312, 1 So. 893.
******
“ ‘The curator represents the absentee as relates to die real estate as fully as if he •were a general curator.
“ ‘In the first article of the Code of Practice on the subject, provision is made for the appointment of a general curator, and in the article following a special curator is intrusted with similar functions to the extent that he is a special curator. Code Prac. Arts. 963, 964.
“ ‘The Civil Code contains similar provisions to the end that the absentee be represented on his return or on his claiming the property, or, in the event of his never returning, because of his death or for any other cause. Rev.Civ.Code, art. 47.
******
“ ‘The curators may bring an action in their own names without having to mention the names of the heirs they represent because it is often uncertain whether such heirs exist and their names are generally unknown.
“ ‘The word “absentee” has a broad meaning. One of the meanings is, according to 1 Toullier, p. 247, No. 381: “Those of whom little or nothing may be known. They may be dead.”
“ ‘The special curator, having the same authority as the general curator under the articles cited, represents the absentee’s interest in property, although his principal, the absentee, is dead.’

“The point is well stated in the syllabus in the above case (Tell v. Senac, 122 La. 1040, 48 So. 448). This syllabus, prepared by the Court is as follows: ‘In partition proceedings, the curator ad hoc has the authority of a general curator. He represents the absentee if alive, and represents the interest of the absentee in the property if he has departed this life.’

“In Lotz v. Iberville Bank & Trust Co., 176 La. 579, 146 So. 155 [158], it was held, in a foreclosure of mortgage, that the proceeding prosecuted against the absentee mortgagor represented by a curator ad hoc, was valid, although at the time of the action, the mortgagor was dead. The court said: ‘It was never intended that the creditor should, before proceeding, ascertain whether the mortgagor be still living for this he might never be able to do. Under the Code when the debtor is absent or cannot be found, the creditor is authorized to proceed as though his debtor were alive, and if he complies with the codal provisions, the foreclosure is valid even though it subsequently develops that the mortgagor is dead. The attorney appointed under article 737 of the Code of Practice represents the absent mortgagor if living and his heirs if he be dead. If this were not true, such securities would be less attractive and ■less valuable, * * * and the stability of titles made under foreclosure proceedings would be destroyed.’
“And the Supreme Court in this Lotz-Iberville Bank case (176 La. 579, 146 So. 155), affirming Tell v. Senac (122 La. 1040, 48 So. 448) held that ‘ * * * the curator ad hoc represents the absentee if alive, and represents the interest of the absentee in the property if he has departed this life.’
“Prior to the Supreme Court’s ruling in Doll v. Meyer, supra, I would say that tax titles could be quieted in any one of the following ways, even those emanating from the State:
“(a) Under Act 106 of 1934.
“(b) Under Act 38 of 1908.
“(c) Monition proceedings (Dart’s Code of Practice, 725.42 et seq.)
“In quieting tax sales emanating from the State and made in pursuance of Act 237 of 1924, we must eliminate Act 106 of 1934 as an available procedure by virtue of Doll v. Meyer.
“Beginning with the Constitution of 1898 thru 1921, the Legislature was mandated to provide, ‘The manner of notice and form of proceeding to quiet tax titles.’
“Until Doll v. Meyer, I am sure that title examiners generally accepted the statutes above cited as the Legislature’s response to the Constitutional mandate.
“Since Act 106 of 1934 is no longer available, proceedings to quiet tax titles emanating from the State must be brought under other provisions of law, otherwise the Legislature, these many years, must be held not to have complied with the mandate of the Constitution; and those who purchase tax titles from the State are without remedy to quiet their titles where the former owner and tax debtor is an absentee.
“Let us see where this leads: One who purchases a tax title under Art. 10, Section 11, of the Constitution of 1921 and who pays only taxes due with interest and penalties even though for less than the entire property, may have access to the courts for all purposes even to the appointment of a curator ad hoc to represent the absentee tax debtor and former owner. On the other hand, one who purchases from the State in open competition with the world at a public sale and who pays the fair market price for it, is denied access to our courts if the tax debtor and former owner is an absentee, and for whom no curator ad hoc may be appointed.
“Act 73 of 1914 authorizes suit against the State to set aside invalid sales made to the State for unpaid taxes. The tax debtor and former owner (absent defendant) or his heirs could have availed themselves of this proceeding and urged its invalidity for the cause set out in Constitutional Art. 10, Section 11.
“To say that one has a right without a remedy would be equivalent to blotting out Section 6 of Art. 1 of our State Constitution which guarantees: ‘All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.’
“I doubt that the Legislature could enact a law specifically prohibiting the appointment of a curator ad hoc in this or any appropriate case without doing violence to the foregoing constitutional guarantee. A fortiori, when it is only contended that the Legislature has done nothing.
“To hold that a curator ad hoc cannot be appointed in a case like this would militate against the State disposing of property adjudicated to it for delinquent taxes and would necessarily endanger the public fisc.
“Accordingly, I must hold that this suit was properly brought under Act 38 of 1908, and that the absentee defendant is properly represented herein by a curator ad hoc.
“Let judgment be entered for plaintiff.”

The record shows that the taxes for the year for which the property was adjudicated to the State were not paid and that plaintiffs have paid to the State the amount for which it has now been transferred by the State to Mrs. Fried. Because of these facts and, for the reasons given, the judgment appealed from is affirmed.

Affirmed


source: Caselaw Access Project

license: Public Domain

text:
    WOODALL v. SOUTHERN SCRAP MATERIAL CO. et al.
    No. 19205.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Rehearing Denied June 13, 1949.
    Clarence Dowling, New Orleans, for plaintiff-appellant.
    Gordon Boswell, Stanley E. Loeb, New Orleans, for defendants-appellees.
   JANVIER, Judge.

At about 6:30 o’clock on the evening of October 22d, 1946, Clinton Richard Hathaway was killed when the large motor vehicle operated by him crashed into the rear end of a somewhat similar vehicle on the highway ahead. Hathaway had been divorced from his wife, who is now Mrs. Walter G. Woodall, and she, as tutrix of the minor son of herself and Hathaway, brought this action for damages against Southern Scrap Material Company, the owner of the vehicle which was run into, and the American Automobile Insurance Company,, the liability insurance carrier of the Southern Scrap Material Company.

Hathaway was driving a large tractor or motor vehicle which was pulling a tremendous trailer, both of which pieces of equipment belonged to Huff Truck Lines, Inc. Plaintiff alleges that Hathaway was on his way to New Orleans on what is known as the Airline Highway and that he was driving on the right-hand side of the road at a moderate speed when he saw on the road ahead of him another truck which was proceeding at a slower speed; that he “blinked” the lights of his tractor to indicate to the driver ahead that he intended to pass it, and that then he pulled to the left and was about to pass that truck when he noticed the headlights of still another vehicle going in the opposite direction and on the other side of the road. Plaintiff alleges that therefore Hathaway dimmed his headlights and that the driver of the oncoming vehicle dimmed his also, but that as Hathaway turned to the right to resume his proper position on the right-hand side of the road ahead of the truck he had just passed, he crashed into the rear end of a large trailer and tractor belonging to Southern Scrap Material Company. Plaintiff also alleges that the said vehicle of the Southern Scrap Material Company was “either stopped or moving at a very, very slow rate of speed,” and that it “failed to exhibit any lights, signs or reflectors on the rear or sides thereof to warn any motorist of the presence of said vehicle upon the roadway and in violation of the statutes of the State of Louisiana.” Plaintiff also alleges that “Hathaway was driving his truck at a speed not exceeding 40 miles per hour; that he was suddenly confronted with the truck and trailer of defendant which was either stopped or moving at a very, very slow rate of speed * * and that Plathaway “did everything in his power, when confronted with this emergency, to avoid the consequences thereof.”

Negligence is charged against the Southern Scrap Material Company and its agents and employees in the following particulars: In stopping the vehicle on the highway at night without rear or clearance lights or in operating it at a slow rate of speed without rear or clearance lights; ■ in failing to take precautions to make the presence of the said vehicle obvious to operators of other vehicles; in loading the trailer with heavy iron and other material in excess of the statutory limit, which made it difficult for it to proceed at a normal rate of speed.

Defendants answered, denying all of the allegations of negligence and specially pleading, in the alternative, that contributory negligence of Hathaway himself was the proximate cause of the accident. In the answer appear the following charges of negligence which are made against Hathaway : That he operated his vehicle at an excessive rate of speed, which was so great that he could not stop within the range of vision afforded by his headlights; that he failed to see, or failed to heed the presence of the tractor and trailer ahead of him, although they were equipped with a tail light and with clearance lights; that he drove his vehicle into the rear end of the trailer ahead, which was traveling on the highway; that he failed to maintain a proper lookout; that he failed to pass the trailer on its left notwithstanding the fact that there was no traffic on that side of the road and that he failed to keep his vehicle under control.

When the case was called for trial in the Civil District Court for the Parish of Orleans, counsel for defendants objected to the introduction of any evidence on the ground that the petition of plaintiff “does not show either right or cause of action against either defendant.” After arguments on this objection, the district judge made the following ruling:

“After analysing the petition, while it is open to the construction that plaintiff was guilty of contributory negligence, it is also open to the possible construction that he might not, due to exceptional circumstances. The Supreme Court, in the later cases, has said that the rule is that you must be able to stop within the range of your lights, each case must be decided on its own facts. I don’t believe I can say that this petition conclusively shows that the petitioner was guilty of contributory negligence.
“Under these conditions, I’ll let the objection go to the effect and it is understood that your objection applies throughout, without the necessity of repetition; that your rights are reserved; and that you offer evidence subject to the objection.”

After a trial on the merits there was judgment dismissing plaintiff’s suit and she has appealed.

Ordinarily, in considering traffic accident cases and, in fact, all actions “ex delicto”, is customary to first look into the question of whether or not there was primary negligence in the defendant and then, if it is found that there was such negligence, to investigate the question of whether there was contributory negligence. However, it sometimes happens that evidence tending to show contributory negligence seems to stand out predominantly, and in such cases it may be better to consider that evidence first because, if it appears that the true cause of the accident was the negligence or contributory negligence of the person injured or killed, then there can be no recovery regardless of whether there was or was not primary negligence chargeable to the defendant.

In Lehon v. New Orleans Public Service, Inc., 10 La.App. 715, 123 So. 172, 174, we said: “Since we are of the opinion that the proximate cause of the accident was the negligence of the driver of plaintiff’s car, it will serve no good purpose to discuss the question of whether or not there was negligence on the part of the defendant, as the law is well settled that, where an accident is caused by the contributing negligence of a person injured, he cannot recover, notwithstanding the fact that the other party may also have been at fault. Gibbens v. New Orleans Terminal Co., 159 La. 347, 105 So. 367; Townsend v. Missouri Pacific R. Co., 6 La.App. 303; Brown v. Texas & P. Railroad Co., 42 La.Ann. 350, 7 So. 682, 21 Am.St.Rep. 374.”

In Smith v. Illinois Central R. Co., 10 La.App. 342, 120 So. 405, we followed this course, saying: “Before discussing the actions of defendant’s employees, it seems to us advisable to determine whether Smith himself was free from fault, because, whatever may have been the negligence of defendant’s employees, plaintiff cannot recover if Smith was guilty of any negligence which contributed proximately to the accident.”

A reading of the record in the case at bar convinces us that it is unnecessary to determine whether the defendant, Southern Scrap Material Company, was at fault, because if it was guilty of everything charged in the petition, we are thoroughly convinced that the true cause of the accident was the carelessness of Hathaway himself in driving his vehicle at night at high speed into the rear of the moving trailer which, under the circumstances, he should have seen.

The highway at the point at which the accident occurred has four traffic lanes. It is a double highway having a neutral ground in the middle. The two double driveways are paved with concrete, each about 20 feet wide, and the highway is straight for several miles in each direction.

According to plaintiff’s witnesses, Hathaway was operating the very heavy equipment of the Huff Truck Lines, Inc., at a speed which admittedly was as high as 35 or 40 miles an hour when the accident occurred. One of the plaintiff’s witnesses says that it was “a pretty fast speed * * *. I’d say around 35 or 40 miles per hour, at the least.”

The photographs which are introduced in evidence show that the crash must have been terrific. The entire cab of the tractor which Hathaway was driving was completely demolished and the very heavy trailer into which he crashed was turned over on its side. When we remember that the trailer into which Hathaway crashed was moving and the evidence shows beyond any question that it was moving, though slowly, it becomes apparent that the speed at which Hathaway was driving his vehicle was excessive, because it must have been much greater than was the speed of the overtaken vehicle or it could not have done the tremendous damage which it did do.

Plaintiff placed on the stand Julius R. Addison who said that he was operating the truck around which Hathaway’s vehicle passed just before it crashed into the rear of the trailer of the Southern Scrap Material Company. Addison said that he saw the trailer which was ahead of him and that immediately before the accident he was “about 200 yards back of the truck.” A little later he said that he was about 150 yards back of that truck when he discovered it; that he was traveling at about 30 miles an hour and that the equipment driven by Plathaway passed him and immediately afterward crashed into the rear of the trailer. If this is true, then we see no reason why Hathaway should not have seen the trailer which Addison saw when it was 150 yards ahead of him, unless it be that Hathaway was blinded by the headlights of the other vehicle, and we shall discuss that question a little later.

As a matter of fact, there is grave doubt concerning the presence of Addison at the time of the accident. The Highway Police officer, who went to investigate the accident and arrived very shortly afterward, knew nothing whatever of the presence of Addison though he would have been the first person at the scene if his statement is true. If he was immediately behind the truck driven by Hathaway when it crashed into the trailer which was ahead of it, Addison himself would have had difficulty in avoiding crashing into those vehicles, and necessarily he would have been the first one to arrive on the scene. Yet no other witness except Mr. Huff, who reached the scene sometime later, knew anything about the presence of Addison. As a matter of fact, Mr. Bullock, another witness for plaintiff, who was driving the car which was going in the other direction, says that he arrived at the scene first, and he did not know any-tiling about the truck which Addison was supposed to have driven nor of the presence of Addison.

Mr. Bullock says that he was driving his car in the opposite direction and that he saw Hathaway dim his headlights and therefore dimmed his in response. He says that Hathaway did not drive around any .other vehicle as Addison says he did. Before Bullock reached the point at which the accident occurred, Hathaway’s tractor had crashed into the rear of the moving trailer and when this crash occurred Bullock had not yet reached that point. He says that after the crash occurred, he reached the point opposite the two- vehicles and stopped his car, but that in the meantime he had dimmed his lights so that obviously they were no longer blinding to Hathaway if, in fact, they had ever had that effect on him. We do not think they were ever blinding because they were on the other side of the very wide four-lane highway. Hathaway was on the right-hand side of his side of the highway and the Bullock car was on the other side and on the far side of the neutral ground, so there was not presented the situation which is sometimes found when two vehicles with blinding headlights meet on an ordinary two-lane highway.

It is firmly established that it is the duty of one who drives a motor vehicle at night to so operate it as to be able to stop it within the range of vision afforded by its headlights. Odom v. Long, La.App., 26 So.2d 709; Tatum Bros. v. Herrin Transportation Co., La.App., 29 So.2d 799; Radial v. Balthazar et al., La.App., 32 So.2d 483; Lynch v. Fisher et al., La.App., 34 So.2d 513; Ledoux v. Beyt et al., La.App., 35 So.2d 472.

It is also settled that there may be exceptional circumstances which will serve to exculpate a driver who, because of those exceptional circumstances and in spite of due diligence, fails to discover some obstruction or some other vehicle on the road ahead of him. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A.1917F, 253; Moncrief v. Ober, 3 La.App. 660; Kirk v. United Gas Public Service, 185 La. 580, 170 So. 1; Hemel v. United States Fidelity & Guaranty Co., La.App., 31 So.2d 38.

And we know, too, that no fixed rule may be laid down by which it may be determined just what will constitute such exceptional circumstances. Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377. See, also, Louisiana Power & Light Co. v. Saia, La.App., 173 So. 537; Woodley & Collins v. Schusters’ Wholesale Produce Co., 170 La. 527, 128 So. 469.

In Hemel v. United States Fidelity and Guaranty Company, supra, we said [31 So. 2d 39] : “While in innumerable cases it has been held that, regardless of the primary negligence of the person who has left the other vehicle or obstruction in the road, the failure of the operator of a motor vehicle to stop his car before running into a stationary vehicle or other obstruction in the road ahead of him constitutes such contributory negligence as will prevent recovery for injuries to him or for damage sustained by the vehicle driven by him, it has also been definitely established in our jurisprudence that this result should be reached in each case only after taking into consideration all of the circumstances and facts surrounding the particular occurrence.”

The well established rules to which we have referred have not been changed by the decision of the Supreme Court in Dodge v. Bituminous Casualty Corporation, rendered on February 14th, 1949. 39 So.2d 720. That opinion, with the “per curiam” by which a rehearing was refused, indicates to us that the Supreme Court is still of the opinion that the driver of a vehicle is under the primary duty of operating it so that he will not run into any obstruction or vehicle ahead of him, but that there may be exceptional circumstances which will excuse his failure to see such obstruction or other vehicle in time to avoid it.

Counsel for plaintiff, in addition to contending that the Dodge case, supra, nullifies the other jurisprudence to which we have referred, feels that Carter v. Le Blanc Lumber Co., La.App. 37 So.2d 471, and Rea v. Dow Motor Company, La.App., 36 So.2d 750, are authority for the view taken by him and are contrary to the views which we have just expressed.

We see several distinctions between the facts of this case and those presented in Rea v. Dow Motor Co. In the first place, in that case the car which was run into was standing still and was only partially on the highway. In fact, it was stopped at an angle with its left rear corner only a few feet over the edge of the highway, and it was painted an olive drab color for the purpose of camouflaging it, and in the rain which was falling it could not be noticed. Furthermore, the car which was approaching in the other direction in the Rea case did not dim its headlights as Bullock did in the case at bar.

The Carter case is not so easily distinguishable for there the vehicle which was run into from the rear was moving as was the trailer in this case, but we find nothing in the record to indicate that the highway had four lanes as did the highway in the case at bar, and the vehicle which was approaching in the other direction did not dim its lights as did' Bullock. Neither of those cases can be considered as varying from the established jurisprudence on the subj ect.

Bearing in mind the above settled jurisprudence, we cannot avoid the conclusion that there can be no recovery by plaintiff for the reason that Hathaway should have seen the moving trailer on the road ahead of him. Addison, the driver of the intervening truck, if there was any such truck, plainly saw the trailer when it was 150 yards ahead of him.

The headlights on the tractor which Hathaway was driving were in perfect condition according to Mr. Huff, an official of the company which owned that tractor. If there was no intervening truck then there was nothing which interfered with the view of Hathaway.

Counsel for plaintiff argues that the intervening vehicle driven by Addison prevented Hathaway from seeing the other trailer and that this was an additional exceptional circumstance which can be pointed to as exculpating Hathaway. If there was any such intervening truck it cannot be considered as justifying Hathaway’s failure to see the trailer into which he crashed, for the reason that if he found it necessary to go around such an intervening truck and to dim his headlights as he did, it was his duty to take extraordinary precautions, and he should not have dashed around the other vehicle and back to the right hand side of the road without making certain that it was safe for him to do so. If he found it necessary to dim his lights, he should have substantially reduced his speed in accordance with the reduction of his range of vision.

Though written reasons were not given, that was obviously the conclusion reached by the district court. And obviously, too, it was the conclusion reached by the Judge of the Twenty-fourth Judicial District Court in another case which arose out of this same accident. In the other case, Huff Truck Lines, Inc., brought suit against Southern Scrap Material Company and its liability insurance carrier for the damages sustained by the Huff truck which Hathaway was driving and, in that case, the same issues as are presented here were presented to that court and, by agreement of counsel, that case was submitted on a transcript of the evidence which was adduced in this case. In that case the district judge rendered a written opinion and dismissed the suit. We quote from his opinion:

“The Court is of the opinion that an examination of the testimony of the witnesses produced by the plaintiff on the question of negligence, some of which has been corroborated by the defendant’s witnesses, leads the Court to believe that the sole negligence was on the part of the driver of plaintiff’s truck in not observing the truck of the Southern Scrap Material Company, Ltd., immediately in front of his truck whether the said Southern Scrap Material Company, Ltd., truck exhibited lights or not said truck should have been within the full range of the lights of the plaintiff company’s truck. And further, the testimony reveals that the truck of the defendant, Southern Scrap Material Company, Ltd., was being driven on the extreme right hand side of the road, thus leaving an entire lane open between the Southern Scrap Material Company, Ltd., truck and the neutral ground which route, if pursued by the driver of the plaintiff’s truck, would have avoided said accident.
“The Court is of the opinion that the sole cause of said accident was due to the excessive speed of the plaintiff’s truck and failure to keep a proper lookout by the driver of said plaintiff’s truck.”

The accident was caused by the negligence of Hathaway. It is immaterial that there may also have been fault in Southern Scrap Material Company.

Judgment affirmed.

Affirmed.


author: HARDY, Judge. PER CURIAM.

text:
    JOHNSON v. GRAHAM et al.
    No. 7293.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied April 29, 1949.
    Irion & Switzer, Harry A. Johnson, Jr. and C C. Burton, Jr., all of Shreveport, for appellant.
    Morgan, Baker & Skeels, of Shreveport, for appellees.
   HARDY, Judge.

This is a suit in which plaintiff seeks judgment in solido against the defendants, Graham, a real estate broker; the Central Surety & Insurance Corporation, his bondsman, and J. H. Vise, in the sum of $1,000, the amount deposited by defendant, Vise, with defendant, Graham, as earnest money on an agreement to purchase certain residential property in the City of Shreveport owned by defendant.

This matter came before this Court on appeal from judgments sustaining exceptions of no cause or right of action, and was remanded from trial on the merits. The facts at issue are set forth in our opinion. See Johnson v. Graham, La.App., 35 So.2d 278.

After trial on the merits there was judgment in favor of defendant rejecting plaintiff's demands, from which judgment plaintiff brings this appeal. The question here relied upon by counsel for plaintiff is plainly stated in briefs of said counsel before this Court, as follows: “Can defendants prove, by parol evidence, a suspensive condition which, if proven, would destroy a contract to sell real estate?”

We agree with learned counsel in the conclusion that the answer to the above stated question determines the issue presented.

Reference to the written agreement between the parties, plaintiff as seller and Vise as purchaser, which agreement was prepared by the defendant, Graham, as plaintiff’s agent and broker in the transaction, discloses certain essential obligations of the purchaser, Vise, in the following words: “For the above described property I offer to pay the total consideration of Eleven Thousand, One Hundred and No/100 Dollars ($11,100.00) all cash, subject to my ability to secure a loan on the above described property in the amount of Seven Thousand, One 'Hundred and No/100 Dollars ($7,100.00).” (Emphasis by the Court.)

The above quotation constitutes the sus-pensive condition which is the crux of the case.

The purchaser, Vise, deposited the sum of $1,000 as earnest money with the broker, Graham.

The pertinent facts as adduced on trial of this case show that almost immediately after the execution of the agreement on November 18, 1946, Vise made application for an F.H.A. loan in the sum of $7,100. In response to the application a commitment was made by a proper F.H.A. lending agency of a maximum loan of $6,000. Vise, unable or unwilling, it matters not which, to put up more than $4,000 in cash, being unable to procure an F.H.A. loan commitment of more than $6,000, considered the agreement terminated, demanded the return of the sum of $1,000 deposited as earnest money and received the return thereof from the broker, Graham, on or about the 8th day of January, 1947. These incidents, that is, the notification as to the amount of the loan, the demand for and the return of the earnest money, took place within a brief period of time between January 3rd and January 8th, 1947. Plaintiff, upon receiving information as to the above matters, together with suggestions as to counter propositions made by her broker, Graham, which, however, are not established as having been authorized by the purchaser, Vise, requested the intervention and assistance of a friend, Mr. W. S. Cochran, who in her behalf contacted Graham once or twice, the first time being on January 9, 1947. Finally, by registered letter of January 21, 1947, plaintiff, through her attorney, made demand upon Vise to comply with the contract of November 18th, by appearing in the office of her attorney in Shreveport at a time designated on January 24th, for the purpose of completing the sale by payment of $4,000 cash and a loan of $7,100 to be made by plaintiff, the terms, interest, payments, etc., to be in accordance with Vise’s application to the F.H.A. Vise failed to respond to the demand and this suit was instituted.

We readily concede the contention advanced on behalf of plaintiff that a written agreement regarding the sale of real estate cannot be “altered, varied, contradicted, enlarged, diminished or changed in any way by parol evidence”.

We further concede, as is further contended, that the contract itself does not designate any specific lending agency from which the parties required the loan to be procured.

Despite these concessions it appears clear to us, by reference to the contract itself, that at the time of the execution thereof it was not in the contemplation of the parties that the consideration of $11,100 was to be paid $4,000 cash and $7,100 in a vendor’s lien note. The contract definitely provided that the consideration was to be paid “all caish”. Accordingly, in the light of this provision, we think the conclusion is inescapable that neither of the parties at the time had any intention whatsoever of carrying out the financing of the agreement wholly between seller and purchaser.

It logically follows that as the parties contemplated the procuring of a loan by the purchaser from a source other than the seller, parol evidence would be admissible on this point, not in any sense for the purpose of altering or varying the contract, but solely for the purpose of explaining and amplifying the understanding of the parties themselves. In this sense the parol evidence offered and received was clearly admissible. Gulf Refining Company v. Garrett, 209 La. 674, 25 So.2d 329, on rehearing, 25 So.2d at pag-e 339 and authorities there cited.

Without some clarification and explanation of the suspensive condition incorporated in the agreement there would be no means nor method for an interpretation of the contract.

Continuing with a discussion of the implications in the question presented we observe that the plaintiff’s objection to parol evidence is ¡based upon the ground that the proving by this means of a suspensive condition would destroy the contract to sell real estate. We do not think that such a conclusion is tenable. It was not the parol evidence which served to desti'oy the contract but rather it was the inability of one of the parties to meet and fulfill the sus-pensive condition which was made, by consent and agreement, an integral part of the contract itself. The purpose of the parol evidence admitted in this case gives pointed illustration to the vast distinction between the rules of evidence, one of which prohibits the introduction of parol evidence to destroy, among other purposes, a contract, and the other which permits the introduction of parol evidence for the purpose of explaining an ambiguity.

Further substantiation of the justification of the admission of parol evidence in the instant case is found in the fact that testimony on the point clearly establishes a meeting of the minds of the parties to the agreement to the effect that both of them contemplated the negotiation of an F.H.A. loan by the purchaser. While it is true that Mrs. Johnson testified that it was only after the formal execution of the agreement that she was informed as to the fact that Vise intended the use of the term “loan” to mean an F.H.A. loan, there is no' question as to the fact, implicit in the testimony of plaintiff herself, that she proceeded in accordance with such an understanding. This conclusion is further borne out in the final written demand of plaintiff upon the defendant, Vise, in which, for the first time, she offered to take care of the loan in the amount of $7,100 “in accordance with your application to the F.H.A.”

In our opinion there is no showing" of any breach of contract in the instant case. The agreement was terminated, in' accordance with the conditions thereof, as- and when the defendant, Vise, failed to procure an F.H.A. loan in the sum of $7,-100. The only manner in which plaintiff could have combatted and overcome this circumstance, which effectively terminated the contract, would have been by showing that such a loan could have been secured. No effort was made along this line and it is to be presumed that such a showing could not be made.

Further pursuing this point it is worthy of comment to note that plaintiff did not show nor did she attempt to show that the purchaser could have procured from any source a loan of $7,100 on the property in question. The fact that she eventually offered to make such a loan as a last resort some time after the agreement had been terminated and the earnest money refunded, is beside the point since it is clearly outside of and beyond the provisions and obligations of the contract.

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

On Motion for Rehearing.

PER CURIAM.

Counsel for appellant in application for rehearing and brief has emphasized the point that the opinion and decree of this Court on consideration of the appeal from judgment sustaining the exceptions is inconsistent with and contrary to the opinion and decree of this Court on consideration of the appeal after trial on the merits.

We think it necessary to point out the fact that the decree of a Court and the reasons therefor, as expressed in a supporting opinion with respect to a consideration of exceptions, is predicated upon the rule that well pleaded allegations must he taken as true. It does not follow that a Court is bound by a pronouncement in •consideration of exceptions when, as in this case, the vital allegations which indicated the overruling of the exceptions were not substantiated by the weight of the evidence presented on trial of the merits.

The application for rehearing is denied.


author: HARDY, Judge.

text:
    CITIZENS LOAN CORPORATION v. ROBBINS.
    No. 7307.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Love & Bailey, of Shreveport, for appellant.
    Wellborn Jack and Ashley J. Gold, both of Shreveport, for appellee.
   HARDY, Judge.

Plaintiff, alleging that it is the good faith holder and owner for value, brought this suit on a promissory note secured by chattel mortgage on a 1935 Oldsmobile Fordor automobile. There was judgment in favor of defendant, from which plaintiff has appealed.

The facts show that one H. F. Hunter, a mechanic’s helper, who was a fellow employee of the defendant, Robbins, was indebted to plaintiff, which indebtedness was secured by a chattel mortgage on the automobile involved in this suit. Hunter proposed the sale of the car to the defendant, Robbins; an agreement was reached and the two repaired to plaintiff’s office where one of plaintiff’s officials procured the preparation of the necessary instruments in connection with the transaction. Plaintiff released Hunter from his indebtedness, and, on standard printed forms, prepared -a bill of sale, transferring the automobile from Hunter to the defendant, Robbins, drew a chattel mortgage, which was executed by Robbins, and supplied a printed promissory note which was made payable to Hunter, signed by Robbins, and on the reverse side endorsed by Hunter to plaintiff. The defendant paid the plaintiff corporation $10 for the services rendered.

On the second day after the transaction above related, while defendant wa-s driving the automobile, the vehicle went out of control, left the road and was practically demolished. On the following morning defendant notified plaintiff of the accident and offered to return the car, which offer was refused.

The defense to plaintiff’s demands in this suit is based upon the denial that plaintiff is a holder in due course and, as a consequence, that it is answerable for the alleged redhibitory vices and defects of the automobile purchased by defendant. In the determination of this cause it is therefore necessary to resolve two points; first, whether the plaintiff is the holder in due course of the note sued upon and thereby freed from equitable defenses, and, second, if the first proposition be answered in the negative, whether defendant has established the existence of redhibitory vices and defects to a degree which relieves him of liability on the note given in consideration of the purchase of the vehicle.

We think it is clearly established by the jurisprudence of this State that the transferee of a negotiable note who has actually directed the transaction between vendor and purchaser is precluded from claiming the protection accorded a holder in due course. C. I. T. Corporation v. Emmons, La.App., 197 So. 662; International Harvester Co. v. Carruth, La.App., 23 So.2d 473; General Motors Acceptance Corporation v. Swain, La.App., 176 So. 636.

The evidence in the instant case conclusively establishes the fact that plaintiff was so directly interested and involved in the transaction of purchase that he cannot escape the legal imputation that he stands in the shoes of the vendor.

Proceeding to a consideration of the second point, we find the defendant has established, by a preponderance of the evidence, the fact that the destruction of the vehicle resulted from the failure of a defective coupling rod which in the course of operation of the car gave way, thereby rendering proper steering and consequent control by the driver impossible. The defect manifested itself within three days immediately following the sale, thus establishing the presumption of its existence before the sale, in accordance with the provisions of Article 2530 of the Civil Code.

But it is contended on behalf of plaintiff that the defect was one which might have been discovered upon simple inspection, and therefore did not constitute a redhibitory vice under Article 2521 of the Civil Code.

We think it is plain by reference to the wording of the article in question that the defect complained of in this case did not come within the meaning of “apparent defects” discoverable by “simple inspection”, which are the terms used in the Article. The testimony of the witnesses preponderates on the point that the defect existing in the tie rod was not apparent nor was it susceptible of discovery without a thorough inspection.

It is further urged on behalf of plaintiff that the defendant, being an automobile mechanic, was possessed of the means and skill of finding the defects in the vehicle purchased and, failing to exercise them, he cannot now be heard to complain of alleged misrepresentations, citing Great Eastern Oil & Refining Company v. Bullock, 151 La. 209, 91 So. 680; G. J. Deville Lumber Company v. Jaubert, 19 La.App. 48, 139 So. 502.

The facts reflected in the cited cases remove them from any analogy to the present case. We know of no principle which would require an expert mechanic to make a minute examination of the automobile in order to determine the existence vel non of vices and defects.

Finally, we note plaintiff’s argument to the effect that defendant could not expect much of a 1935 model automobile. We assume that defendant recognized, by reason of the age of the vehicle, that he would likely be subjected to annoyance, inconvenience and difficulty in maintaining the car in operation, but none of this, in our opinion, would justify the conclusion that he expected the automobile, suddenly and without warning, to leave the road upon which it was traveling and destroy itself on the roadside, subjecting him, incidentally, to serious bodily injury. Such an assumption would be entirely contrary to any standard of human behavior.

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


author: TALIAFERRO, Judge.

text:
    PEAVY v. MANSFIELD HARDWOOD LUMBER CO. et al.
    No. 7318.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Harry Fuller, of Winnfield, for appellants.
    Watson & Williams, of Natchitoches, Gravel & Downs, of Alexandria, and Arthur C. Watson, of Natchitoches, for ap-pellee.
   TALIAFERRO, Judge.

Alleging permanent total disability to do work of any reasonable character, as the effect of an accident experienced by him on September 11, 1945, while performing the duties of a contract of hiring with W. B. Nelson, independent contractor of the Mansfield Hardwood Lumber Company, plaintiff sued both parties to recover compensation at the rate of $20 per week for four hundred weeks,- less four payments of $10.50 each. By an amended petition he alleged payments of compensation had been made to him to November 2, 1945.

The facts of the accident are not disputed. Plaintiff when injured was thirty-four years old and was engaged in arranging logs that had been deposited upon a stationary truck. To do this he was using what is commonly known and referred to as a cant hook. Considerable physical effort is necessary, with the use of this implement, to move a log from one place to another. The hook, in one instance, failed to catch sufficiently deep into a log to withstand the physical force plaintiff applied to it, and it slipped from its hold. He lost balance and fell upon the ground, a distance of some eight or ten feet. He landed on his head and left side. A slight concussion rendered him unconscious for a brief time. He alleged that from the fall he sustained serious and permanent injuries to his back, spine, head and nerves, the ultimate and composite result of which is that he, at the time of and prior to filing suit, was and is now afflicted with psychoneurosis of such serious character as to produce the disability alleged upon.

Defendants, in limine, filed a plea of prescription of one year which does not appear to have been ruled upon. It is not now urged and presumably has been abandoned.

Answering, the defendants plead that the injuries received by plaintiff when he fell from the truck were not serious; that on October 19, 1945, he had fully recovered therefrom, and has been paid more compensation than was justly due him; that at the present time he is not disabled to do the work he was engaged in when hurt. This position is based upon the premise that on October 24, 1945, plaintiff, at defendants’ instance, was examined by competent physicians in the City of Shreveport, Louisiana, who were not able to find any injury or traumatic disorder of his nervous system.

There was judgment for plaintiff as by him prayed. The defendants appealed.

Whfen the accident occurred, Nelson was not far away (in the woods) loading another truck. Loading of plaintiff’s truck was completed and evidently thinking it was not safe to allow him in his injured condition, to make the tedious drive to the highway, some two miles away, Nelson did this for him. From that point plaintiff drove the loaded truck to a mill where the logs were unloaded.

Plaintiff did not report for duty the morning following the accident. Nelson came to his home and finding him unable to resume work and complaining of serious pain and other symptoms, had Mrs. Nelson drive him to Alexandria to consult Dr. Hardy, the company’s employed physician. Dr. Hardy physically examined plaintiff and had X-rays made of those portions of his body from which pain emanated. He found no objective symptoms and the X-ray pictures were negative as to bone pathology. Plaintiff was at the time complaining of severe pain in the left side of his chest, neck and left shoulder. The doctor prescribed sedatives for the relief of the pain, rest, and hot applications for the chest, neck and shoulder. Plaintiff returned to him for observation and examination three or four times. It was Dr. Hardy’s opinion that plaintiff’s injuries were rather trivial and he advised him to return to work. He did not think plaintiff was suffering from psychoneurosis and expressed serious doubt that such an ailment can be the result of trauma. All the other doctors who testified in the case disagree with him in this opinion. However, Dr. Hardy makes no special claim to ability to judge cases of this character.

Plaintiff returned to work for Nelson on October 17th, worked that day and the two following days. He testified that because of physical weakness he was unable to do the lifting and straining necessary to the performance of the work assigned to him. He also stated that Nelson discharged him at this time. Plaintiff’s testimony in these respects is not contradicted by any one; not even by Nelson, as he did not take the witness stand.

The above related action by plaintiff and his constant assertions of pain and inability to carry on his usual work, evidently impressed defendants as they immediately arranged to have him examined and his condition diagnosed by Drs. M. S. LeDoux and D. H. Duncan, of Shreveport, Louisiana, the latter being an outstanding specialist in neurology and psychiatry. Each of these doctors examined him on October 24, 1945, and again on April 29, 1947. Neither found plaintiff to be suffering from traumatic organic disorder, nor did they find any objective evidence of traumatism. X-ray pictures revealed no bone injury. Of course, such pictures do not disclose muscular or tissue injury.

When first examined by Dr. LeDoux, plaintiff complained of pain, numbness, drawing from his waist up and abnormal sensations in the head. Being unable to confirm the existence of cause for these complaints, Dr. LeDoux referred the patient to Dr. Duncan for neurological examination in the hope of clarifying the situation. Dr. LeDoux found plaintiff to be thin, apparently undernourished and nervous. He thought he could do some hinds of work but was certain he was not able to load and unload logs as he had previously done. The most significant opinion rendered by Dr. LeDoux is reflected from the following excerpt from his testimony, to wit: “I could not find any objective signs of disturbance that would keep him from working, assuming that his neurological examination did not reveal signs of nerve injury, or things of that kind.”

Dr. Duncan engaged in a very lengthy and enlightening discussion of psychoneurosis, its causes, effects and duration, but candidly confessed that he had not had adequate time and opportunity to definitely determine the cause of the psychoneurosis he found to beset plaintiff. He was of the opinion that plaintiff’s general condition had not improved any between the times he examined him, but, on the contrary, he had lost ground. The following extract from Dr. Duncan’s testimony throws light upon this rather delusive illness, to wit: “The difficulties which an individual encounters obviously play their part in precipitating the illness. In certain individuals it is an injury, or fear of incapacity, or loss of occupation, financial need, conscious or unconscious hope of money, the fear of not being taken care of in a physical disability —all of these things may play their part in varying degrees in different people in developing psychoneurotic conditions, and certainly, in my mind, it would take more than just a couple'of periods of examination to definitely pin down anyone cause psychiatrically for this particular man’s disability. We know, from these reports, that the symptoms and complaints which he gave have not been found to be related to organic disease.”

Dr. Duncan’s interpretation of plaintiff’s physical and mental condition warranted the opinion, as by him expessed, that he could not perform laborious work. The doctor stated that relief from the anxiety and uncertainty of the outcome of this suit would go far toward improving plaintiff’s mental condition. However, he made it clear that he did not believe plaintiff was intentionally malingering, and was clear in the opinion that his present mental and physical condition could be the result of worry and anxiety following developments superinduced by the effects of the accident.

After being examined in Shreveport the first time and realizing that his condition was not improving, plaintiff consulted Dr. J. J. Young of the City of Natchitoches, Louisiana, who prescribed and treated him until the early part of January, 1946. To that time1 he had lost over twenty pounds in weight, part of which was regained while under Dr. Young’s treatment. His financial inability to pay Dr. Young for his services and the cost of medicine prompted the doctor to advise him to go to the Charity Hospital in New Orleans for further treatment. He did not do this but did consult Dr. M. L. Magruder of Alexandria, Louisiana, who began treating him on January 8, 1946, and continued to do so until the date of trial, a period of nearly two years. Plaintiff’s weight was one hundred thirty pounds when he first consulted Dr. Magruder. His normal weight is from one hundred forty pounds to one hundred’forty-five pounds.

Dr. Magruder has not specialized in neurotics nor psychiatry, but has had considerable practical experience in treating persons afflicted with such maladies. He is, however, in a better position to diagnose and interpret plaintiff’s case than was any other physician who examined him. He diagnosed the case as being post traumatic neurosis, a direct result of the accident, and was certain that since he began treating plaintiff he has not been physically able to do hard work of any character.

He gave the following as some of the symptoms present in plaintiff’s case, to wit: “Extreme anxiety, appreciable depression, worry, some mental confusion, headaches, nightmares, fatigue, loss of appetite, emotional upset, loss of sexual emotions, some irritability, some tremulous difficulties.”

He further stated that these symptoms marked the neurotic. Dr. Magruder is of the opinion that plaintiff will never fully recover from his present illness.

At the request of plaintiff’s counsel, on March 14, 1946, Drs. Texada and Miller of the City of Alexandria, Louisiana, made physical examination of him. These doctors found plaintiff to possess an apathetic expression, nervousness, and an agitated mental state which could easily have been precipitated by the accident, the worry and anxiety that ensued, and which has relentlessly beset him all along. These physicians diagnosed the case- as being psychoneurosis.

All of the several doctors who,examined plaintiff, after he tried to resume work in October following the date of the accident, were positive in the opinion that he was not intentionally malingering and all of these doctors gave the opinion that he was disabled to do heavy work, especially the kind he was following when hurt. All agree that his condition reflected many symptoms that were not, in whole or part, usually seen in a normal person, and all agree that it does not necessarily require a serious and permanent physical injury to bring about a psychoneurotic condition in the individual. In like manner they concur in the opinion that the accident in this case was ample in its shock and severity to account for the conditions that are manifest in plaintiff.

An array of plaintiff’s friends testified in his behalf. All of them knew him to be an active man, a good workman, and of a jovial, cheerful disposition up to the time of the accident, but since then, they all agree, he has become morose, depressed and no longer evinces interest in things that formerly attracted his interest and attention. They are to one accord in saying that his body, once erect, is now stooped; that he was formerly able to perform heavy manual labor, but cannot now do so; that he has not engaged in gainful work since being injured.

Plaintiff and his wife testified that beginning immediately after the accident and to the time of trial, he had been unable to sleep at night except from the effect of sedatives; and that he suffered bodily pain and was highly restless.

The rule in a case of this character is well expressed in Schneider’s Workmen’s Compensation Law, Volume 1, § 204(a), page 609, as follows: “Even though an accident may not produce an anatomical pathology, nevertheless if the workman does in fact become disabled as a result of that accident, the injury is com-pensable, although such disability may be the result of hysteria — and may be traceable to a mental condition and not a physical disorder.”

The issues involved in the present case are not new in the jurisprudence of this state. The recent cases of Vaughn v. Solvay Process Company, La.App., 176 So. 241; Porter v. W. Horace Williams Company, et al., La.App., 9 So.2d 60, and Lala v. American Sugar Refining Company, La.App., 38 So.2d 415, are very much in point. In each case the plaintiff succeeded. The first case involving said issues, so far as our research reveals, is that of Wilkinson v. Dubach Mill Company, Inc., 2 La.App. 249.

The present case tenders solely questions of fact. They are: Is plaintiff disabled to do heavy manual labor, and, if so, is such disability the result of the accident, and has it direct causal connection therewith? The lower court answered both of these questions in the affirmative. A diligent study of the testimony has not led us to- different conclusions.

It is admitted that payments of compensation were made to plaintiff until November 2, 1945. The judgment does not give credit for these payments. It fixed September 11, 1945, as the date for the commencement of weekly payments thereunder, and to continue during- disability, not to exceed four hundred weeks. It will have to be amended so as to allow said credits.

For the reasons herein assigned, the judgment from which appealed is amended by crediting defendants with payments of compensation to November 2, 1945, and, as thus amended, the judgment from which appealed is affirmed. Plaintiff is cast for cost of appeal. Other costs shall be paid by the defendants.


text:
    THARPE v. TRACY.
    No. 7323.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Stephens & Allen, of Shreveport, for appellant.
    Garrett & Pleasant, of Shreveport, for appellee.
   HARDY, Judge.

Plaintiff, a real estate broker, brought this action to recover a commission alleged to be due by defendant. The suit was dismissed upon an exception of no cause or right of action filed by defendant, from which judgment plaintiff has appealed.

The material allegations of fact set forth in plaintiff’s petition, which must be taken as true in the consideration of defendant’s exception, show that defendant entered into a contract with plaintiff on date of August 20, 1948, by reason of which plaintiff was accorded the right of exclusive listing of certain property of the defendant to be sold for a consideration of $9,850. The term of the exclusive listing was fixed at a period of 40 days, and the agreement provided for a 5% commission to the broker. The contract contained the following provision: “Should this property be sold by me, by you or by any other agent during the existence of this contract, or should it be sold within six months after the expiration of this contract to anyone to whom this property has been exhibited or offered for sale by you for the price above set out or for any other price, I agree to pay you the above stipulated commission as a consideration for your previous efforts to sell the property.”

Proceeding under the authority of the contract plaintiff advertised the property for sale, and, on date of August 30, 1948, exhibited the property to one Charles Cox. who made an offer of $9,250, which was duly transmitted to defendant and declined by him.

On September 11, 1948, plaintiff directed a letter to the defendant, the body of which reads as follows :

“Dear Mr. Tracy:
“By mutual agreement between yourself and this company we hereby acknowledge the termination of our exclusive listing contract on your property, the South 132 ft. of Lot 36 of the Nichols Subdivision of Caddo Parish, La.
“We are sorry we were unable to be of service to you at this time.”

On September 27, 1948, defendant executed a deed conveying the property described to Charles S. Cox and wife for a total consideration of $9,250.

On the basis of the above alleged facts plaintiff claims a commission, based upon 5% of the sales price of the property, in the amount of $462.50.

Defendant’s exception rests upon the contention that plaintiff’s letter of September 11th effected a complete rescission of the contract between the parties as the result of which plaintiff has no right to maintain an action based upon the provisions of the original contractual agreement.

On behalf of plaintiff it is urged, in effect, that the termination of the contract did not serve to annul and avoid the rights which had accrued to plaintiff prior thereto.

It is obvious that the only circumstance under which this question could possibly have arisen resulted from defendant’s action in accepting the offer that had been made by the very person who was first interested in the purchase of the property as the direct result of plaintiff’s efforts.

It is further obvious that the determination of the question here presented must rest upon a definition and the legal effect of the word “termination”.

We find no cases directly in point. Plaintiff strongly relies upon the holding in Ruiz v. Treadaway, La.App., 17 So.2d 378, but in our opinion the facts of the cited case are distinguishable from the one at hand to such extent as to render the principle inapplicable although the ultimate result may be the same.

Distinguished counsel for defendant makes the following observation in brief before this Court: “The law is clear that the parties to a commutative contract may abrogate, cancel or terminate their agreement. This is exactly what has been done in this case.”

The soundness of the principle set forth in the sentence first above quoted cannot be gainsaid, but the statement that “this is exactly what has been done in this case” is somewhat ambiguous. The gist of counsel’s argument is that the terms “abrogate”, “cancel”, “rescind” and “terminate” should be considered as synonomous. It is urged that the use of the word “termination” in the letter of September 11th must be construed as having effected a complete rescission of the original contract of August 20th, and that it served, not simply to put an end to the duration of the agreement, but also to wipe out any rights acquired or any obligations incurred. We are unable to concur in this interpretation.

There is no question as to the right of parties to an unexecuted commutative contract to abrogate or revoke such contract by mutual consent, and this proposition is well substantiated in this State. Article 1901 of the Civil Code declares that legal agreements can be revoked “by mutual consent of the parties”; Article 1945, dealing with the interpretation of agreements, confirms the right of the parties to “abrogate or modify” such agreements; and Article 2130, in enumerating the methods of extinguishing obligations, includes “recission”.

We cannot subscribe to tbe interpretation sought to be enforced by defendant that “termination” comprehends the same effect as would be implied by the terms “revocation”, “abrogation”, or “rescission”. Black on Rescission and Cancellation, Second Edition, Volume 1, Section 1, Page 1, points the distinction as follows: “To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning; that is, not merely to release the parties from further obligation to each other in respect to the subject of the contract, but to annul the contract and restore the parties to the relative positions which they would have occupied if no such contract had ever been made.” (Emphasis by the Court)

We find a similar (definition by the Supreme Court of Oklahoma in F. & M. Drilling Company v. M. & T. Oil Company, 192 Old. 372, 137 P.2d 575, 577, as follows: “ 'Termination’ or ‘cancellation’ of a conditional contract means to abrogate so much of it as remains unperformed, doing away with an existing agreement upon the terms and with the consequences mentioned in the writing, and different from ‘rescission,’ which means to restore the parties to their former position.”

It is our view that the mutual consent of the parties as evidenced by plaintiff’s letter of September 11th must be construed as a modification rather than an abrogation of the original contract.

Reverting to the provisions of Article 1945 of the Civil Code with respect to interpretation, we find that the fourth paragraph of the Article provides: “That it is the common intent of the parties' — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.”

While the above rule of interpretation deals with the construction of contracts, we are convinced that it is equally applicable to the construction of agreements abrogating or modifying contracts. Viewed in this light there is no question as to the conclusion that the parties to this litigation were actuated by obvious differences of intent. The plaintiff by this suit has evidenced his construction of the agreement of “termination” in a manner entirely at variance with that of defendant, who proceeded to conclude this transaction within a period of little more than two weeks after the “termination” with the very party on the very terms that had been procured by plaintiff.

With further reference to a consideration of the intention of the parties the following principle is noted in 17 C.J.S., Contracts, § 412, page 899: “Rights acquired under a contract may be abandoned or relinquished by agreement, conduct, or by a contract clearly indicating such purpose. To constitute an abandonment of rights, an actual intent to abandon must exist.” (Emphasis by the Court.)

We can only conclude that in this instance there has been no rescission of the contract of August 20th by mutual consent, and, consequently, the termination cannot be construed as having deprived plaintiff of those rights which had accrued to him prior to September 11th.

It is additionally urged on the part of defendant that plaintiff failed to reserve the rights or benefits under the contract which had accrued to him, and, as a consequence, has lost the same. In support of this contention reference is made to 17 C.J.S., Contracts, § 392, page 884, and cases there cited, to the point that no claim or action for breach can be maintained nor are parties bound by a contract subsequent to a rescission by mutual consent. We find no fault with this statement, but we continue to maintain that this interpretation would be appropriate only in the event the terms “rescission” and “termination” could be used interchangeably.

There is. nothing in the allegations of plaintiff’s petition which can be construed as an intention to abandon. On the contrary the allegations refute such an intent.

For the reasons assigned the judgment appealed from, maintaining the exceptions of no cause and no right of action and dismissing plaintiff’s suit, is reversed and set aside and this cause is remanded to the Honorable The First Judicial District Court in and for Caddo Parish, Louisiana, for further proceedings consonant with the opinions expressed herein. Costs of this appeal are to be borne by defendant-ap-pellee and all other costs shall await final determination hereof.


author: KENNON, Judge.

text:
    MALL TOOL CO. v. POULAN.
    No. 7314.
    Court of Appeal of Louisiana. Second Circuit.
    March 30, 1949.
    Rehearing Denied April 29, 1949.
    Certiorari Denied May 31, 1949.
    Tooke & Tooke, of Shreveport, for appellant.
    Tucker, Bronson & Martin, of Shreveport, for appellee.
   KENNON, Judge.

Plaintiff, alleging that it had delivered to defendant on or about February 13, 1947 five of its Mall Gas Chain Saws for an agreed price of $2092.50, and that defendant was entitled to two credits, one for $276.08, paid on March 10, 1947, and another on April 30, 1947, for “returned parts” amounting to $97.57, filed suit for an alleged balance due of $1727.85.

Attached to plaintiff’s petition were a photostatic copy of the invoice listing the five chain saws and also twelve interrogatories on facts and articles addressed to the defendant.

Defendant in answer admitted the delivery by plaintiff in February, 1947 of the five chain saws, covered by plaintiff’s invoice number 95675 as alleged, but set forth that the March 10th payment mentioned in plaintiff’s petition in the sum of $267.08 constituted a payment in satisfaction of the balance due and in support of his contention attached to his answer an original check for this sum, payable to plaintiff, and on the face of which was contained the following writing in ink:

“Inv. 95675 • 2092.50
Parts returned for credit 1825.42
267.08”

and in print: This check is in full settlement of account as shown hereon. Acceptance by endorsement constitutes receipt in full.”

The answer further set forth that defendant had been an equipment dealer for the plaintiff company for several years prior to the delivery of the merchandise sued on; that plaintiff, in the early part of 1947, through its agent, Frank I. Fisher, and with the cooperation of defendant, had transferred this dealership; that in the course of the discussion in which defendant and the prospective dealers participated, plaintiff’s agent Fisher advised defendant that he might return certain parts which he had in stock and which would not be taken over by the new dealers, to ‘plaintiff company for credit; that Fisher, plaintiff’s agent, advised defendant to make a detailed list of the parts and forward same prepaid to plaintiff’s factory in Chicago, and that pursuant to this authorization, and in accordance with the customary dealings with the plaintiff, he had forwarded to plaintiff at Chicago parts of a value of $1825.42, which with the $267.08 remitted in March, 1947, constituted a full settlement of the account sued upon.

After the answer was filed, the District Court overruled a motion by the plaintiff for judgment on the pleadings and likewise denied plaintiff’s motion for a rehearing on this ruling. After trial, judgment was rendered in favor of plaintiff as prayed for. Defendant, after the denial of his motion for a rehearing, asked for and perfected the present appeal.

Defendant urges.the contention set forth in his answer, namely, that plaintiff had authorized him as a dealer, and particularly in the Alexandria conference resulting in the transfer of the Mall gas saw dealership, to return for credit the parts which were not purchased by the incoming dealers. The defendant was a dealer for plaintiff’s gasoline chain saw and for several years prior to February, 1947 had sold the equipment manufactured by plaintiff over a territory extending across North Louisiana and East Texas. Defendant maintained a sizable inventory (over $10,000 at time of giving up dealership) of spare parts and plaintiff had, on one or more occasions, issued defendant a credit memorandum for parts returned by him to its Chicago factory. The evidence further shows that at one time during his dealership, defendant had contacted plaintiff’s Chicago office by telephone, requesting that plaintiff write a letter to a bank (from which defendant expected to borrow money based on his stock of parts, etc.), stating that defendant was entitled to return parts at will for credit. Defendant made this request — apparently 'from the bank — in a telephone conversation with Mr. Sanders, an authorized official of the plaintiff company in its Chicago office. Mr. Sanders told defendant that plaintiff would not permit such a practice and declined to write the requested letter. We therefore find that the record does not support defendant’s contention that, as a Mall dealer, he had blanket authority to return parts to the Chicago plant for credit.

We next consider defendant’s contention that plaintiff’s agent Fisher, in a conference at Alexandria with defendant and the incoming dealers, had authorized defendant to return all parts which he had in stock and which were not purchased by one of the incoming dealers. Mr. Fisher did tell defendant and the prospective dealers that parts might be returned to the Mall Company’s Chicago office, provided same were sent prepaid and a detailed list furnished. Mr. Fisher admitted stating that parts could be returned under the conditions above named, but testified that he also told plaintiff and the prospective dealers that it was necessary to secure authorization in advance from the Chicago office. We conclude that, while Mr. Fisher was— salesman like — enthusiastic and overoptimistic as to the ease with which dealers might return parts for credit, the record does not establish that his statements amounted to an authorization to defendant to return such portions of his parts stock as were not taken over by the incoming dealers.

We next consider the merit of defendant’s reliance upon the doctrine of accord and satisfaction and his contention that, under the circumstances shown by the record, plaintiff’s acceptance and cashing of the $267.08 check, with notations as above set forth, constituted an estoppel against its pressing the claim sued upon.

The elements necessary for the invocation of the doctrine are set forth in the opinion of Judge McCaleb — now Justice McCaleb — in the case of Davis-Wood Lumber Company, Inc. v. Farnsworth & Co., Inc., et al, La.App., 171 So. 622, 627, in the following language: “It is apparent to us that there are present in this case the three concurring elements necessary for the invocation of the doctrine of accord and satisfaction. First, there was a disputed claim between the parties to the contracts; second, a tender was made in full settlement of the claim; and, third, the tender was accepted by the plaintiff. Under these circumstances, we are bound, under the jurisprudence of this state, to sustain the plea of estoppel.”

In the case before us, there is little doubt but that the second and third of the above requirements were fulfilled, and the case turns principally upon whether or not there existed, at the time plaintiff cashed the check, a dispute between the parties.

The evidence shows that the two incoming dealers each purchased from the defendant parts worth about $4300, consequently, the $1825.42 worth of parts returned by defendant constituted approximately 20% of his stock and the return of a portion of the stock was not necessarily inconsistent with the statement by Mr. Sanders (the company’s Chicago representative) in the telephone conversation with the defendant at his bank, that the company would not give blanket or unlimited authority for the return of his entire stock of spare parts.

The plaintiff company knew, at the time it received the check from defendant, that his dealership had been terminated, or was in the process of termination. Defendant attached to his answer and introduced in evidence the check payable to plaintiff and bearing on its face notations that should have put plaintiff on notice that defendant expected full credit for $1825.42 in spare parts and that the check was tendered conditionally, and, if accepted, would constitute a settlement of defendant’s remaining liability under plaintiff’s invoice number 95675.

The fact that plaintiff had accepted small sums of parts and given credit to defendant in prior years afforded some basis for defendant’s contention that prior authorization from Chicago was not necessary for the return of parts for credit. The fact that defendant attached to his check a copy of the invoice for which the check was tendered in settlement and that defendant wrote on the face of that invoice the notation that the $267.08 constituted a settlement of the balance due after credit of the $1825.42 in parts returned, further served to put plaintiff on notice that the defendant expected this credit for returned parts, and to justify our conclusion that plaintiff, at the time the check was deposited for collection, knew that the defendant was making claim against the Mall Company for the $1825.42 credit in ■spare parts.

The check was dated March 6, 1947. The cancelling date, cut in the face of the check, was March 13, 1947. On March 14th plaintiff wrote and mailed to defendant a letter as follows:

■“Poulan Saw Company
“201 East Avenue
“Marshall, Texas
“Attention: Mr. Claude Poulan
“Dear Claude:
“We are in receipt of a list from you of chain saw parts that we assume you are returning to us for full credit. The total amount of the parts listed is $1,825.42.
“Frankly, Claude, we did not authorize you to return these parts for credit, therefore, we have instructed our Receiving Department to ship them back to you upon their arrival here at the factory. We believe that once before our Mr. Sanders informed you on the telephone that you cannot return perfectly good parts to us for credit. When you relinquished your saw business to your brother and brother-in-law it was our impression that they intended to purchase all of your assets. By the time all of these parts would be checked and inspected and replaced back in our stock departments, all of our profit on them would be gone.
“We are certain that you can see our reason in not wanting them returned to Chicago. If there are any further questions regarding the return of parts, please contact us by return mail.
“Yours very truly,
“Mall Tool Company “/s/ H. B. Constant “H. B. Constant”

Plaintiff’s statement in the first paragraph of the above quoted letter that “we assume that you are returning (the parts) to us for full credit,” was mailed to defendant only one day after plaintiff’s bank had effected collection of defendant’s check containing the notation that the check was sent in settlement of its invoice number 95675 and containing a further memorandum that the check was in full settlement of the account shown and that acceptance by endorsement constituted a receipt in full. While we found that the evidence did not sustain defendant’s contention that he was authorized by plaintiff’s agents either in Chicago or by Mr. Fisher at the Alexandria conference to return parts in unlimited number for full credit, the statements of Fisher at Alexandria were such as to encourage defendant in the belief that his residue stock of parts might be accepted in Chicago. Likewise, the fact that defendant had been issued credit on one or more previous occasions for parts returned to Chicago' — without prior authorization — laid some basis for defendant’s considering the question an open one and a proper one for the making of the conditional tender.

These circumstances, and the other evidence in the record, indicate that plaintiff knew that defendant was making claim for full credit for the parts returned and that there was a “disputed claim between the parties” at the time the check was received and cashed.

The fact that defendant’s check was for an amount admitted to be due does not prevent its acceptance — when tendered with the stipulation that the payment constituted a full settlement — from constituting an accord and satisfaction. Meyers v. Acme Homestead Ass’n, 18 La.App. 697, 138 So. 443, 445. In that case the homestead association sent a check to plaintiff for an amount admittedly due, upon which was endorsed “Full settlement of account.” The Court, notwithstanding that the check did not include any amount in settlement of the portion of the claim in controversy, hdld that plaintiff, by accepting the check, was estopped from asserting a further claim, quoting from Corpus Juris, Volume 1, page 555, as illustrative of the preferred rule, the following: * * Where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained' as an extinguishment of the whole.’ ”

In the case of Berger v. Quintero, 170 La. 37, 127 So. 356, 357, the defendant had sent check to plaintiff for an amount admittedly due, along with a statement that it was sent in full settlement. Defendant later sued for the balance claimed and the Supreme Court in maintaining the plea of estoppel used the following language: “The plea of estoppel, in our view, is well founded. The claim was a disputed one. If plaintiff was not satisfied with the settlement tendered, he should not have retained the check, and cau'sed it to be certified by the bank upon which it was drawn, but should have returned it, in the absence of a waiver of the condition attached to the- remittance. By retaining the check, and causing it to be certifiedj he is now precluded from rejecting it, and suing defendant upon the entire claim. Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275, 112 P. 770, 33 L.R.A.,N.S., 852; Seeds Grain & Hay Co. v. Conger, 83 Ohio, St. 169, 93 N.E. 892, 32 L.R.A.,N.S., 380; Scheffenacker v. Hoopes, 113 Md. 111, 77 A. 130, 29 L.R.A.,N.S., 205; Drewry-Hughes Co. v. Davis, 151 N.C. 295, 66 S.E. 139; St. Regis Paper Co. v. Tonawanda Board & Paper Co., 186 N.Y. 563, 79 N. E. 1115.”

Plaintiff’s contention that the notation on the check that same constituted a full settlement and its receipt and endorsement constituted a receipt in full was printed instead of being in the handwriting of defendant or one of his employees, is similar to the contention which was unsuccessfully made in the Davis-Wood Lumber Company case, supra. In passing upon this point, the Orleans Court of Appeal used the following language: “Moreover, the point made that the notation on the check ‘endorsed and accepted in full payment of within account’ was printed instead of being in the handwriting of one of the defendant’s officials is manifestly unsound, inasmuch as the notation is a part of the instrument and sets forth in unmistakable. language the condition under which the payment was made.”

The facts in the case before us are different from those in the Supreme Court case of Selber Bros., Inc. v. Newstadt’s Shoe Stores et al., 203 La. 316, 14 So.2d 10, 13, as the Supreme Court found as a fact that the part payments there made were not tendered upon a condition that the indebtedness would be fully satisfied if they were accepted.

In that case, as noted by the extract quoted below, the Court approved the above cited Meyers and Berger cases and indicated that its holding would have been different had the Newstadt’s Shoe Stores check contained the declarations included in the case before us.

“But defendant urges, under the discussed special plea, that the acceptance of the minimum amounts resulted in what is termed an accord and satisfaction and that plaintiff is now estopped to collect the excess rental. In support of that position it cites and relies on Meyers v. Acme Homestead Association, 18 La.App. 697, 138 So. 443, and Berger v. Quintero, 170 La. 37, 38, 127 So. 356. In each of those cases, as we appreciate the facts thereof, there accompanied the delivered check a written declaration of the obligor that the payment constituted full settlement of the balance of the indebtedness, thus implying that its acceptance would entirely discharge -the obligation; and the court held that by accepting the check the creditor was estopped to recover more.
“In the controversy now before us, it does not appear that the payments were tendered upon a condition, expressed or implied, that the indebtedness would be fully satisfied if they were accepted. There was nothing in writing, either on the checks or otherwise, to indicate the existence of a condition of that kind; neither does the evidence show that the parties understood or intended that the discharge of all liabilities would result from the acceptance.”

Plaintiff has cited the case of Coco v. Moss Company, 4 La.App. 645. In -that case, the Court of Appeal of the First Circuit denied a plea of estoppel. In that case it appears that defendant sent a check to plaintiff for a portion of the account accompanied by a statement that the check was remitted to cover the balance due. The opinion does not indicate whether or not the check or statement contained the further stipulation — as is true in the present case and in the above cited Louisiana cases — that acceptance of the check constituted a receipt in full or a settlement of the account, and may be distinguishable on this point from the case before us and from the Louisiana cases above cited. As stated by Justice Hamiter in the Selber Bros, case, supra, quoting from [American Forwarding & Mercantile Co. v. Lindsay Chair Co.,], 129 Ill.App. 548: “‘It is one tiling to inform a creditor when sending a check that the debtor will not pay any more and a very different thing to advise him that the check is sent upon condition that if he accepts it, he will do so in full settlement of the account.’ ”

Having found the three concurring elements set forth in the Davis-Wood Lumber Company opinion, supra, as necessary for the invocation of the doctrine of accord and satisfaction, we conclude that the District Court erred in not maintaining the plea of estoppel.

The judgment appealed from is reversed and judgment is now rendered dismissing plaintiff’s suit, with costs.