author: PONDER, Justice. HAMITER, Justice MOISE, Justice. HAWTHORNE, Justice,

text:
    214 La. 472
    STATE v. EVANS et al.
    No. 38630.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    On Rehearing Nov. 8, 1948.
    Further Rehearing Denied Dec. 13, 1948.

      Fred S. LeBlanc, Afty. Gen.; M. E. Culligan, Asst. Atty. Gen., J. Vernon Sims, Dist. Atty., of Oak Grove, Harry N. An-ders, Asst. Dist. Atty., of Winnsboro, and Warren Hunt and John C. Morris, Jr., both of Rayville, for plaintiff-appellee.
    H. C. Walker, Jr., of Shreveport, W. D. Cotton,-of Rayville, W. H. Thompson^ of Monroe, and George Conger, of Shreveport, for defendants-appellants.
   PONDER, Justice.

The defendants were convicted under an indictment charging them with unlawfully prospecting for oil, gas and other minerals by means of a mechanical device or otherwise on the private lands and property of George B. Franklin, without the consent of the owner, in violation of Act 212 of 1934. Each of the defendants were sentenced to pay a fine of $1,000 and cost and, in default of payment of the fine, that the defendants, except the Arkansas Fuel Oil Company, serve twelve months in the parish jail. The defendants have appealed from the conviction and sentence.

The defendants seek to set aside the conviction and sentence on various grounds. The grounds relied on were properly raised in the lower court by bills of exceptions and motions. In order to avoid repetition, the issues will be discussed without referring to the manner in which they were raised because there is no dispute in that respect.

It is contended that Act 212 of 1934 is violative of Section 16 of Article 3 of the Constitution in that its title is not indicative of its object and that it embraces more than one object.

The title of the act reads as follows: “Making it a misdemeanor to prospect for oil, gas or other minerals, or for other purposes, on the public lands and highways of the State without its consent, or upon private property without the consent of the owner, and providing a penalty for the violation of this Act.”

The only difference in the title and the body of the act is that it is provided in the body of the act that it shall be unlawful to prospect by means of torsion balance, seismograph explosions, any mechanical device, or otherwise, for oil, gas or other minerals, and provided that the consent of the State may be given by certain designated officials. The provisions in the act with reference to the means of prospecting are germane to the object expressed in the title. The title of an act does not -have to be a synopsis or index of its contents. It is sufficient if the title indicates the general purpose of the law. State v. Fuller, 209 La. 523, 25 So.2d 83.

The ac't has only one object. Its object is to prevent prospecting on lands without the -consent of the owner.

The defendants contend that the act is unconstitutional because it does not fix any standard of guilt and does not define the phrases “to prospect” and “mechanical devices”. They take the position that under the act it is left to the discretion of the judges, district attorneys and grand jurors to determine - what constitutes the crime. They claim that this violates Section 10 of Article 1, Section 1 of Article 3 arid Sections 1 and 2 of. Article 2 of the Constitution.

We have on numerous occasions pointed out that a statute should be construed according to the.fair import of its words, taken in their usual sense in connection with the context. This method of construction was recently referred to in the case of State v. Truby et al., 211 La. 178, 29 So.2d 758.

The word “prospect” has a well , defined and a common accepted meaning. If we were to define that word by pointing out that it means “to explore, examine, search for,, or make tests”, the words defining it would not have a more common or accepted meaning. The same may be said of “mechanical devices”. It would be folly for the Legislature to define words in an act that have a common accepted meaning. Prospecting for oil has been extensive in this State for a number of years and it is .'generally known that mechanical devices are used for that purpose. The records of this. Court, as well as the records of many other courts of this State, reflect that mechanical devices arp generally used in making geological and geophysical surveys in the search of, or in prospecting for, oil or other minerals. The ordinary man. has no difficulty in understanding what prospecting for oil with mechanical devices means, especially when these phrases are used in connection with the oil industry. It is not necessary to state any and every mechanical device that might be used in the discovery of minerals in the statute any more so than words used in denouncing other offenses, as “shop” under the old' breaking and entering statute, “confidence game” under'that statute, or “the various means by which death may be caused” in the crime of murder. The offense of prospecting for oil, as denounced under this statute, is confined to mechanical operations, thus restricting its orbit and apprais-. ing the public of its nature and the means through which it may be committed. This, in our opinion, firmly establishes what constitutes the offense and nothing is left to the discretion of the judiciary to determine.

The defendants contend that the indictment does not charge an offense known to or denounced by any law of this State. They say that the indictment contains nothing but conclusions of law and that no facts are alleged as to any acts of the defendants showing a violation of the law. They take the position that the indictment violates Section 10 of Article 1 of the Constitution in that they were not informed of the nature and cause of the accusation. The defendants concede that an indictment, following the language of a statute or alleging an offense in words equivalent to those used in the statute or of the same import, is sufficient if it fully informs the accused of the offense charged and the court is enabled to determine on what statute the charge is founded. There is no dispute that the general rule does not apply when the words of a statute do not in themselves fully set forth all the elements and ingredients necessary to* constitute the offense intended to be punished. They claim that the indictment does not allege the facts and circumstances upon which the offense is based and, under the exception to the general rule, it is not a valid indictment. Their counsel have cited many authorities which they claim support their position. We have examined these authorities and find that none are in point. They involve statutes where the crime is denounced in general language which' requires the allegation of the essential facts. The indictment sets forth all the elements and ingredients necessary to constitute the offense and fully apprises the defendants of the nature and cause of the accusation. What could he more clear and free from uncertainty and ambiguity than “did unlawfully prospect for oil with a mechanical device” on the lands of a named person withour his consent?

The defendants contend that Act 212 of 1934 has been superseded or repealed by Act 77 of 1940. Their contention is based on the ground that the subsequent act impliedly repeals the former act.

Act 212 of 1934 is designed to prevent prospecting on public and private property without the owner's consent. Act 77 of 1940 has for its purpose the protection and preservation of minerals under lands owned by the State. It gives the Conservation Commissioner authority to grant permits for the conduction of geophysical and geological surveys, subject to the rules and regulations of the state mineral board. All of its provisions deal strictly with public lands and have no application to private owned lands. It is not necessary for the purpose of this decision for us to determine whether the subsequent act impliedly repeals the prior act insofar as public lands are concerned, for the reason that this cáse presents no such issue. However, insofar as private lands are concerned, there are no provisions in the subsequent act that are irreconcilable with the prior act. There is nothing in the subsequent act to indicate any intention on the part of the Legislature to repeal the prior act in respect to private lands. Repeals by implications are not favored and they must be based on a legislative intent to supersede the prior law or the provisions of the two acts must be irreconcilable. These rules of law are so well imbedded in the jurisprudence of this State that it is unnecessary to cite authorities supporting them.

The defendants contend that the State produced no evidence whatever to the effect that the defendants prospected on the private lands of George B. Franklin. They concede that this Court cannot review the facts affecting their innocence or guilt and reverse the findings of the lower court upon insufficiency of evidence of guilt but claim that there is no evidence on an essential element of the crime charged, viz.: showing they prospected on the private lands of George B. Franklin. The evidence shows that George B. Franklin owned a large tract of land traversed by many roads. Most of the roads running through this property were parish roads that had never been formally dedicated, but rights of way or servitudes were obtained by prescription. The defendants made tests on these roads with a gravity meter machine and the readings from this machine reflected information obtained not only from under the road beds but from the other lands of Franklin. It is not necessary for the purpose of this decision to determine whether tests made of the Franklin land from a point where a machine was located on another’s land is a violation of the act, because Franklin owned the road bed upon which the machine rested when the tests were made. The basis of the defendants’ contention is that public highways are not and cannot be private lands within the meaning of Act 212 of 1934 and Act 77 of 1940, even though an individual owns the soil and the mineral rights beneath the highways or rights of way. In other words, that prospecting on these road beds is not prospecting on private property..

It is well recognized that the right to prospect by geophysical and geological surveys is a valuable right. This right belongs to the owner of the soil if it has not been disposed of. In the case of Goree v. Midstates Oil Corporation et al., 205 La. 988, 18 So.2d 591, it was held that a' right of way obtained by prescription was nothing more than a servitude and did not divest the owner of the fee title to the road bed. The decision was based on the articles of the Civil Code dealing with serv-itudes. From a mere reading of the opinion in that case it is readily seen that the public’s right in the property is. merely one of passage or a limited right of use. When the Legislature refers to roads and rights of way, in the acts relied on, as public property, it contemplated those where the State owned the fee title. This is clearly demonstrated in Act 77 of 1940 in Section 1(a) where public lands are defined as lands belonging to the State or the -title to which is in the public, including rights of way, road beds, etc. The State could not lease these road beds or dispose of them. Franklin, the owner of the soil, alone has this right. It is true that Franklin could not disturb the usé of the rights of way, but the road beds could be developed for oil by directional drilling. ' If we were to construe the statutes, as contended for by the defendants, it would render them unconstitutional.

The defendants contend that the conviction should be set aside insofar as the corporation is concerned.

The corporation was charged in the in.dictment as being represented by H. C. Walker, Jr., as its executive officer and in charge of its operations. Walker was also charged in the indictment individually. The district attorney dismissed the charge insofar as Walker was concerned prior to the trial. On the trial the evidence showed that the other defendants did the alleged prospecting for the corporation. No objection was urged to this evidence. After all the evidence had been adduced, counsel for the corporation urged the following complaint by way of special charge, viz.: that-, the corporation should be acquitted because the evidence failed to show that Walker was the executive officer in charge of the operations and failed to show that the corporation prospected on the lands, acting through Walker. The defendants have cited no authorities to support tlieir con- • tention and we know of no reason why the conviction should be set aside under the circumstances, because the charge was directed at the corporation and it was proven that the other defendants were acting for the corporation when they prospected on-the lands. The answer to defendants’ request for a bill of particulars states that' the other defendants made the survey for' the corporation. No objection was made to the evidence that the other defendants did the prospecting fbr the corporation. Taking these facts into consideration with the further fact that the charge had been dismissed in respect to Walker before the trial began, there could be no good reason to set the conviction of the corporation aside.

For the reasons assigned, the convictions and sentences are affirmed at appellants’ cost.

O’NIELL, C. J., absent.

HAMITER, J., dissents and assigns written reasons.

HAMITER, Justice

(dissenting).

In the indictment, as presented by the Grand Jury, it was originally charged that the defendants herein, on May 1, 1946, in the Parish of Richland, “did then and there unlawfully prospect by means of mechanical devices and otherwise for oil, gas and other minerals on the private lands and property of one George B. Franklin without the consent of him, the said George B. Franklin, the owner of said lands and property, and did then and there unlawfully prospect by means of mechanical devices and otherwise for oil, gas and other minerals on public highways regularly maintained by the Louisiana Highway Commission and on public highways not maintained by the Louisiana Highway Commission which run through, over, across and upon the lands and property of the said George B. Franklin, without proper permit, consent and authority so to do, contrary to and in violation of the provisions of Act No. 212 of the Legislature of Louisiana of 1934, and' all acts amendatory thereto.” Subsequently this charge was amended by the District Attorney, pursuant to an order of the court, so as to delete therefrom all that part which made reference to prospecting on public highways. And, following the amendment, defendants were prosecuted and tried for the single offense of having prospected on the private lands and property of George B. Franklin without his consent.

As stated in the majority opinion the evidence adduced on the trial disclosed that the tests conducted by the defendants were on parish roads that traverse the lands owned by Mr. Franklin. Although such roads have never been formally dedicated, and the soil. and mineral rights beneath them belong to the named owner, nevertheless they are servitudes of way — public roads or highways — by virtue of prescription. From which there arises the question : Did the testing conducted by defendants on those parish or public roads constitute a prospecting on the private lands of George B. Franklin, as charged in the amended indictment, within the meaning and contemplation of Act 212 of 1934? My opinion is that it did not.

Act 212 of 1934, in the disjunctive, sets forth three separate and distinct ways by which the prospecting for oil and gas with a mechanical device results in the commission of a misdemeanor. These are when the prospecting is done, to quote from such statute, “ * * * on the public lands of the State without the consent of the Register of the State Land Office, or on the public highways of the State without the consent of the Louisiana Highway Commission, or on private property, without the-consent of the owner; * * Continuing, the statute recites: “Provided, that on such public highways as are not regularly maintained by the Louisiana Highway Commission, it shall be sufficient to procure ,the consent of the Police Jury of the Parish in which such public highway is located.”

These provisions unquestionably distin-' guish between prospecting on “private lands” and prospecting on “public' highways.” This being true, and considering that the statute in question ;s penal in nature and must be strictly construed, it-cannot be correctly said that when the defendants were conducting their operations on public roads — public highways maintained by the parish — they were committing the offense of prospecting on the private lands of George B. Franklin within, the intendment of Act 212 of 1934.

I respectfully dissent.

On Rehearing.

MOISE, Justice.

The ' defendants are appealing from a-, judgment of conviction for the alleged. violation of Act 212 of 1934. The issues before the Court, on rehearing’, are (1) the interpretation of this statute; and (2) the admissibility as distinguished from the sufficiency of the evidence.

An analysis of the Act shows that it denounces three offenses:

1. To prospect by means of mechanical devices for oil and minerals on public lands without the consent of the State Land Office;

2. To prospect for oil with mechanical devices on public highways without the consent of the State Highway Department; and

3. To prospect for oil and minerals with mechanical devices on private property without the consent of the owner.

The statute also contains a conditional clause: “Provided, that on such public highways as are not regularly maintained by the Louisiana Highway Commission, it shall be sufficient to procure the consent of the Police Jury of the Parish in which such public highway is located.”

' The origin'al indictment discloses that the defendants were charged with “prospecting with mechanical devices on the private lands and property of George B. Franklin, without his consent, and with prospecting with mechanical devices on public highways maintained by the Staté and on public highways not maintained by the State which run through, over, across and upon the lands of said Franklin, without permit * * This indictment was subsequently amended, pursuant to an order of court, and .there was deleted therefrom all that part of the charge which referred to prospecting on the - public highways. There remained only the charge that the defendants had prospected on the private lands and property of George B. Franklin, without his consent. It was for this offense they were tried and convicted. Proper and timely objections were made to all of the rulings of the trial court and formal bills of exception were reserved by the defendants.

The defendants herein had a permit from the Highway Department to prospect for oil and gas with mechanical devices on the public highways. The proof offered on the trial, as was noted in both the original and the dissenting opinions, shows that the tests conducted by the defendants were on parish roads that traversed the lands owned by Mr. Franklin. Although these roads were not formally dedicated, they are servitudes of way — public roads or highways — by virtue of prescription.

The transcript reveals the fact that during the trial,’ the objections made by the defendants were both general and specific. It is of particular note that these defendants did strenuously object and did reserve bills of exception, which were properly confected and signed, to any evidence that tended to enlarge the issue over and beyond that set out in the amended indictment. Nevertheless, over these objections, the trial court did allow the State to introduce evidence of operations which proved an allegation previously deleted from the indictment.

There is considerable difference of law and fact in the making of a survey and the actual use of a gravity meter machine on the surveyed location. The statute itself makes the distinction. To. be a completed crime in the instant case (a) the prospecting for oil or minerals must be made, (b) a mechanical device must be used, (c) on private property, without the consent of the owner. All three of these ingredients must be proved beyond a reasonable doubt.

The record before us clearly shows that the defendants were convicted on proof offered for prospecting for oil on a public highway, without the consent of the person who owned the soil and mineral rights under the right of way. This is not the charge of the indictment. Therefore, this variance between the allegations of the indictment and the' proof is fatal. The manifest error is the admitted evidence. /

The statute — Act 212 of 1934— is penal and must be strictly construed. The Legislature prescribes the definition of a crime; the court cannot supply one. The Legislature, in this act fixed the consent of the Highway Department as excluding a conviction for prospecting on a highway maintained by the State, and the consent of the Police Jury of the parish as being sufficient to exclude a conviction for prospecting on public highways maintained by the police jury. The act prescribes one rule for private property and another for public highways. Therefore, if the court were to sustain the convictions of -the defendants herein, the effect would be that of writing into this statute that cóns'ent be obtained from another class— the owner of the bed of the public highway. The granting of a privilege is one thing— defining a crime is another. It is clear that the Legislature in adopting this statute could not have meant to include within the term private property any public highway of the State, even though a private citizen might own the soil and mineral rights •thereunder. The presumption in a criminal case is pne of innocence. A rule of statutory construction is affirmatio unius ex-clusio est alterius — the affirmance of one thing is the exclusicp of the other.

It is therefore ordered, adjudged, and decreed that the verdicts and the sentences appealed from are annulled and set aside, and this case is ordered remanded to the lower court to be proceeded with according to law. The State’s right to apply for a rehearing is reserved.

HAWTHORNE, Justice (dissenting), written reasons.

PONDER, J., dissents.

HAWTHORNE, Justice,

(dissenting).

As I understand the majority opinion, the verdict and sentence of the lower court were reversed because of the “variance between the allegations of the indictment and the proof * * The majority opinion stated that the evidence clearly shows that the defendants were convicted on proof offered for prospecting for oil on a public highway without the consent of the person who owned the soil and the mineral rights under the right of way, and that it was manifest error to admit this evidence.

If the majority of this court means by the above that the evidence was insufficient to prove the charge, this court is without jurisdiction, and has no right to review the evidence because this presents only a question of fact, and this court has jurisdiction only of questions of law in criminal cases. La.Const. of 1921, art. 7, Sec. 10; State v. Green, 111 La. 89, 35 So. 396; State v. Nolan, 129 La. 935, 57 So. 274; State v. Davis, 158 La. 21, 103 So. 391; State v. Kilshaw, 158 La. 203, 103 So. 740; State v. Bonner, 193 La. 387, 190 So. 621. If the majority opinion means that there was no evidence in this case on some essential element of the crime charged, in my opinion the record shows that there is some evidence, no matter how little, that these defendants prospected for oil and gas by means of a mechanical device, a gravity meter machine, on the private property of George B. Franklin without his consent. It is only where there -is no evidence at all upon some essential element of the crime charged that the Supreme Court may set aside a verdict. State v. Hollingsworth, 137 La. 478, 68 So. 834; State v. Holder, 159 La. 82, 105 So. 232; State v. McDonell, 208 La. 602, 23 So.2d 230.

The evidence shows that most of the markers,' indicating reading stations, were placed by the defendants during the survey on the right of way, but that some of them were on the private property of George B. Franklin; that the gravity meter crew worked all of the stations, except two or three, and those worked included stations indicated by markers on the private prop--erty of George B. Franklin; that the purpose of the survey was to survey the property of George B. Franklin. The evidence also shows that the gravity meter crew-never took their truck off the highway or rights of way through George B. Franklin’s ■property. In my opinion all of this evi-. dence was admissible to prove the crime-charged. As to the truth or falsity of any-of this evidence, or its sufficiency, we are-not vested with authority to decide, but in my opinion it contains some evidence-that the prospecting operations were on the-private -property of George B. Franklin..

The essential elements of the crime-charged agains-t these defendants, as I read the statute, are, first, to prospect for oil or gas or other minerals; second, by means of any mechanical device, and, third, on private property without the consent of the owner. No issue is made of -the fact-that the defendants were prospecting for oil and gas by means of a mechanical device and without the consent of George B. Franklin; therefore, the sole issue in regard to the proof of the elements of the crime is whether this prospecting was done on the private, property of George B. Franklin.

I submit that fo,r there to be some evidence’ on this element of the crime it was not absolutely necessary for the State to show that the mechanical device itself was physically on the private property. The showing that -the defendants actually established reading stations On the private property while prospecting, as indicated by the markers and streamers thereon, that they worked the survey with a gravity meter machine, and that the purpose of the survey was to survey the property of George B. Franklin, is, in my opinion, some evidence of this element of the crime. This court, therefore, .is without jurisdiction to reverse the verdict and sentence upon a consideration of the evidence in this case.

I respectfully dissent.


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    214 La. 495
    STATE v. VALLERY.
    No. 39122.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Edwin I. Mahoney, of New Orleans, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Herve Raci-vitch, Dist. Atty. and Robt. E. Le Corgne, Jr., both of New Orleans, for appellee.
   MOISE, Justice.

The accused, Oliver Vallery, was charged with the crime of armed robbery. He was tried and found guilty as charged and sentenced to serve a term of nine years in the State Penitentiary, at hard labor. From this conviction and sentence he has appealed.

The record discloses that in his motion for a new trial the defendant reiterates the bills of exception reserved during the trial, and in addition thereto filed an assignment of errors based on the insufficiency of the evidence. The entire evidence is annexed to the motion for a new trial to show that the guilt of the accused of the crime charged was not established beyond a reasonable doubt.

It is solely within the province of the jury as exclusive judges of the facts in criminal cases to pass upon the credibility of the witnesses and the weight and sufficiency of the evidence. These are matters that we can not review under our appellate jurisdiction, which is restricted to •questions of law alone in criminal cases. Const. 1921, Art. VII, Sec. 10; Art. XIX, Sec. 9. Under our jurisprudence this court ■can not pass upon the sufficiency of the •evidence on an appeal in a criminal case where there is some evidence, no- matter how. little, upon which a verdict of guilty can be predicated, since that is a matter with which the trial judge and the jury are exclusively concerned. State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Davis, 208 La. 954, 23 So.2d 801 and State v. Valentine, 203 La. 1057, 14 So.2d 851.

The grounds set out in the motion for a new trial and designated as Bill of Exception No. 1 would show that while the prosecuting witness was on the stand on cross-examination, it was developed that he had made a signed statement at the police station on the night of the robbery. The defendañt asked for oyer of the statement in possession of the district attorney and it was refused. The court sustained the objection made by the State to the production of the document and the defendant reserved a bill of exception. The significant matter here is that the State did not offer this- document in evidence. The prosecuting witness was present in court, he gave his testimony and submitted himself for cross-examination. It is contended by the defendant that such a record is public. This- is opposed to the finding of this Court in the following cases: State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Dallao, 187 La. 392, 175 So. 4; State v. Lee, 173 La. 966; 139 So. 302.

Act No. 195 of 1940 and Act No. 242 of 1912, as amended by Act No. 255 of 1920, deal with the subject of public records. The provisions of Sec. 5 of Act No. 242 of 1912, as amended, are similar to those of Sec. 3 of Act No. 195 of 1940. This Sec. 3 of the latter act reads: “The provisions of this Act shall not apply to public records, as defined herein, when the same are held by any sheriff, district attorney, police officer, * * * as evidence in the investigation for or prosecution of a criminal charge, until after such public records have been used in open court or the criminal charge has been finally disposed of; * * This Act is positive in its term's; the language used is clear and free from ambiguity, and the court is duty bound to give full effect to the enactment. (Italics ours.)

We find no prejudicial error in the record.

For the reasons assigned, the v.erdict and sentence appealed from are affirmed.


author: • PONDER, Justice.

text:
    214 La. 499
    STATE v. THOMAS.
    No. 38977.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      J. W. Jones, Jr., of Natchitoches, for appellant. ■
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst, Atty. Gen., J. Reuel Boone, Dist. Atty., of Many, and J. R. Ferguson, Asst. Dist. Atty., of Leesville, for appellee.
   • PONDER, Justice.

The defendant was convicted of possessing intoxicating liquors for sale in a parish where the sale of intoxicating liquors is prohibited, and sentenced to pay a fine of $400.00 and costs and, in default of payment of fine and costs, to be imprisoned in the parish jail for a period of five months. He has appealed.

During the course of the trial, a bill of exception was taken to the overruling of a motion for a continuance. The defendant’s counsel did not appear at the hearing of this appeal or file a brief in support of it. •

The motion for continuance was based on two grounds, viz.: first, that the fixing of the trial by the trial court on a date other than during a regular criminal term of court was illegal; and second, that the defendant’s counsel did not have sufficient time to prepare the defense.

Under the provisions of Section 42 of Article 7 of the Constitution of 1921 a district judge has authority to try a misdemeanor at any time. State v. Rogers, 157 La. 318, 102 So. 414.

The granting or refusal of a continuance rests in the sound discretion of the trial judge and will not be disturbed except where the discretion has been arbitrarily or unreasonably abused. Article 320, Louisiana Code of Criminal Procedure.

The defendant was arraigned orr March 1st, and his case was set for' trial for March 5th. The trial of the case was; postponed to March 6th to enable the defendant’s counsel to be present at the trial-There is nothing in the record to show that, the defendant was deprived of the attendance or testimony of any specific witness-Under the circumstances, the refusal of the continuance was not arbitrary or unreasonable.

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


author: McCALEB, Justice.

text:
    214 La. 501
    STATE v. ELKINS.
    No. 39069.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Harvey G. Fields, of Farmerville, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E.. Culligan, Asst. Atty. Gen., and Truett L. Scarborough, Dist. Atty., of Ruston, for appellee.
   McCALEB, Justice.

Defendant has appealed from a conviction and sentence for unlawfully engaging, in the business of handling and storing intoxicating liquor for the purpose of sale. Eleven bills of exception were reserved by him during the trial. One of the bills is admittedly well founded. Hence, it is unnecessary to notice the rest as defendant is entitled to a new trial.

The bill was taken to the judge’s action in permitting the arresting officer to state, ■over timely objection, “We had a tip on Roy Elkins selling on that road * * This declaration was clearly hearsay and ■should have been excluded under our rulings in State v. Kimble, 214 La. 58, 36 So. 2d 637 and State v. Lowery, La.Sup., 38 So.2d 77. Albeit, the state confesses the ■error and concedes that defendant should have a new trial.

The conviction and sentence appealed from are reversed and set aside and the case is remanded to the district court for .a new trial.


author: MOISE, Justice. McCALEB, Justice

text:
    214 La. 503
    OSBORNE v. MOSSLER ACCEPTANCE CO. et al.
    No. 38748.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    J. S. Pickett, of Many, for plaintiff-relator.
    Simms & Jackson, of Leesville, for defendant-respondent.
   MOISE, Justice.

We granted a writ of certiorari in this • case so that a review could be had on the judgment of the Court of Appeal, First Circuit, awarding to plaintiff the sum of $257.50, representing $132.50 as damages, and $125 as attorney’s fees, this amount to apply as an off-set of the judgment on the reconventional demand for $1,363.50, plus interest and attorney’s fees, granted in favor of the defendant. 31 So.2d 452.

The plaintiff is seeking damages against the Mossier Acceptance Company because of the unlawful seizure of his house trailer by executory process, the Court of Appeal ■having dismissed the suit and declared the executory process improperly issued, as the Texas chattel mortgage under which the seizure was made was not an authentic act (La.App., 14 So.2d 492); and, since this suit was instituted because of the illegal seizure, it is necessary to briefly summarize the facts of the entire litigation.

The record shows that on September 18, 1942, at Karnack, Texas, plaintiff purchased a house trailer and executed as part payment, his promissory note for $1,363.50, bearing 10% interest from maturity and payable to the order of George F. Stephens, in monthly installments as therein specified, at the office of the Mossier Acceptance Company, Houston, Texas. An endorsement appears on the back of the note whereby Stephens transferred it to the Mossier Company on the same date. In connection with this transaction, plaintiff executed a chattel mortgage on the trailer, to secure the note. This instrument contained the stipulation that the property was not to be moved -from the county or out of the State of Texas without the mort--' gagee’s written consent. The contract of sale, the note, and the chattel mortgage were made and executed in the State of Texas by and between Texas citizens. Since payments were not made as specified by the note, the Mossier Company caused an order of executory process to issue against plaintiff and seized the trailer which was then in plaintiff’s possession and located in Hornback, Louisiana. The Court of Appeal declared the writ of seizure to have been illegal, since' the chattel mortgage was not by authentic act, and dismissed the writ of seizüre' and sale. 14 So.2d 492. Thereupon, two separate suits were filed against the Mossier Company, one on behalf of plaintiffs wife for damages for alleged humiliation, etc., and the other, by the plaintiff (the proceeding now before us) for damages claimed to have been suffered because of the illegal seizure. In answer to these suits, the Mossier Company filed a reconventional demand for the amount of the note given by plaintiff to George F. Stephens and assigned to defendant in the amount of $1,363.50, plus 10%. interest and 15% attorney’s fees. Judgment was rendered in the district court in plaintiff’s favor for damages of $410.75;, and there was judgment also in favor of the Mossier Company against the plaintiff on the reconventional demand for $1,363.50,. with 10% interest and 15% attorney’s fees,, recognizing the lien and privilege of the defendant on the trailer, the' amount of the judgment in favor of the plaintiff to-be allowed as an off-set against, the judgment in favor of the defendant on the re-conventional demand. The wife’s suit was-dismissed for want of sufficient evidence., Appeals were taken on both suits to the-Court of Appeal. That court affirmed the dismissal of the wife’s suit and reduced* the judgment of award for damages in Osborne’s favor from $410.75 to $257.50.. The judgment in favor of defendant in the-sum of $1,363.50, plus interest, etc., on the reconventional demand was affirmed. 31 So.2d 452. A rehearing was denied and we granted a writ of certiorari and now only plaintiff Osborne’s suit is before us. for review.

It is plaintiff’s contention that the note and mortgage were altered as to the payments after he signed it; however, he admits he signed the note and mortgage and has failed to prove that the present holder had knowledge of any defects or irregularities in the note and mortgage. The evidence shows that before September 25, 1942, and prior to the due date of the first instalment of the note, plaintiff was informed by the defendant, Mossier Company,, that it held his note, secured by the chattel mortgage. It has also been shown that plaintiff had received at that time a schedule of payments in accordance with the note. It is -clear, therefore, that the defendant acquired the note before maturity and for a valuable consideration.

The contract was made in the State of Texas, to be performed in that State; and the note was to bear interest at the rate of 10% from maturity. There is no proof in the record of the legal rate of interest in the State of Texas. In the absence of such proof of the foreign law, the law of Louisiana must be applied. Barlow v. Fife, 172 La. 176, 133 So. 436. The amount of interest to be allowed herein must, therefore, be determined under our law.

Article 2924 of the Revised Civil Code reads:

“Interest is either legal or conventional. Legal interest is fixed at the following rates, to-wit:
“At five per cent "on all sums which are' the object of a judicial demand. Whence this is called judicial interest;
“And on sums discounted at banks at the rate established by their charters.
“The amount of the conventional interest can not exceed eight per cent. The same must be fixed in writing; testimonial proof of it is not admitted in any case.
“Except in the cases herein provided, if any person shall pay on any contract a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within two years from the time of such payment.
“The owner or discounter of any note or bond or other written evidence of debt for the payment of money, payable to order or bearer or by assignment, shall have the right to claim and recover the full amount of such note, bond or other written evidence of debt, and all interest not beyond eight per cent per annum interest that may accrue thereon, notwithstanding that the rate of interest or discount at which the same may be or may have been discounted has been beyond the rate of eight per cent per annum interest or discount; but this provision shall not apply to the banking institutions of this State in operation under existing laws.
“The owner of any promissory note, bond or other zvritten evidence of debt for the payment of money to order or bearer or transferable by assignment shall have the right to collect the whole amount of such promissory note, bond or, other written evidence of debt for the payment of money, notwithstanding such promissory note, bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight per cent per annum; provided, such obligation shall not bear more than eight per cent per annum after maturity until paid.
“Provided, however, where usury is a defense to a suit on a promissory note or other contract of similar character, that it is permissible for the defendants to show said usury whether same was given by way of discount or otherwise, by any competent evidence.” (Italics ours.)

Usury was not urged as a defense to this suit in the district court nor in the Court of Appeal. However, during the oral argument, this Court questioned counsel for defendant as to whether or not the promissory note involved provided for usurious interest. An examination of the Louisiana statutes reveals that under the provisions of Act No. 291 of 1855, if a contract was usurious, the penalty was that of forfeiture of the entire interest. The Court of Appeal, on rehearing, in Clark v. Harvey, 1912, 9 Orleans App. 277, 278 stated:

“Act No. 291 of 1855, amending Article 2924, R.C.C. provides that the amount of the conventional interest should not exceed eight per cent under pain of forfeiture of the entire interest.
“But Act No. 68 of 1908, amending the same article and practically redrafting it, omitted the penalty of the Act of 1855, and contains a repeal of all conflicting legislation.
“This amendment took the place of the pre-existing article, which thereupon ceased to exist and became suspended by the amendment. * * *
“We think the rate of interest properly reducible to the highest rate allowed for conventional interest by our statute.”

From a reading of the codal article, and particularly by reason of the facts herein stated, the rate of interest of 10% should be reduced to 8%, the highest rate of conventional interest allowable under Louisiana law.

Under the finding of facts and the law, the question of damages due plaintiff will now be considered. The seizure and sale were illegal because the foreclosure was by executory process, contrary to Louisiana law in the absence of an authentic act.

The contract signed by the plaintiff imposed the 'following conditions and covenants: (a) That there should be no default in the installment payments; (b) that the trailer must not be moved from the State or county wherein the mortgage was given, without the 'consent of the vendor; (c) that if either of these contingencies happen, the vendor has a right to declare the entire debt due, and make demand; and (d) the debtor agreed to surrender the trailer voluntarily to the vendor. This chattel mortgagor, plaintiff, failed to make the proper installment payments and also moved the property out of the State of Texas, without the permission of the mortgagee defendant. While he was able to take advantage of a technicality of Louisiana law, the defendant, nevertheless, was attempting to collect on a valid contract and was acting in good faith. Plaintiff asks for damages for the humiliation, pain and embarrassment occasioned by defendant’s wrong act, in addition to actual pecuniary loss alleged to have been sustained. Defendant urges that plaintiff has failed to prove his claims and his suit for damages should be dismissed. The writ of review in this case was issued at the instance of the plaintiff only. The defendant did not apply for a writ of review or join in the application to review the judgment of the Court of Appeal. It is well settled that in reviewing a judgment of the Court of Appeal, at the instance of one of the parties to the suit, we will not amend the judgment to his prejudice and to the advantage of the party who has not complained. Therefore, the judgment of this court will be confined to the complaints of the plaintiff at whose instance the review was granted. Washington v. Holmes & Barnes, Ltd., et al., 200 La. 787, 9 So.2d 35.

In support of his argument for damages, counsel for the plaintiff cites the case of Saia v. Phœnix Building and Homestead Association, 182 La. 844, 162 So. 640. We are unable to find the analogy claimed by plaintiff’s counsel. In the cited case, the defendant in executory or executory process, who became the plaintiff in the damage suit which followed, was not the debtor of the seizing creditor, the homestead. The award of $750 in damages was pitched on an unwarranted and unlawful seizure of her property when she was at no time the debtor of the homestead association. In the case before us the plaintiff is a debtor of the Mossier Company on his signed promissory note, secured by the chattel mortgage, which he also signed, in the full sum of $1,363.50, plus interest at 10% from date of maturity and 15% attorney’s fees. The debt was due and the creditor sought to collect by executory process, thus making the plaintiff in this suit the defendant in execution.

In Oxford v. Colvin, 134 La. 1094, 64 So. 919, the sheriff seized property claimed to be a homestead and did so by executory process. The debtor therein 'engaged the services of an attorney and sued out an injunction on the ground that the property was exempt. The injunction was sustained, the seizure released, the Supreme Court holding:

“As relates to attorneys’ fees and damages claimed by plaintiff in injunction, we do not think that in this case the plaintiff in injunction is entitled to either.” 134 La. at page 1098, 64 So. at page 921.

In Fallin v. J. J. Stovall & Sons (On Rehearing) 141 La. 220, 234, 74 So. 911, 915, 916, there was a seizure and execution which was enjoined by defendant debtor. In the matter of damages, the court held:

“As to the damages for attorney’s fees, such are not allowed when the plaintiff in injunction is the defendant in execution.”,

See, also, Chappuis v. Preston, 28 La.Ann. 729; Townsend v. Fontenot, 42 La.Ann. 890, 8 So. 616; and Jackson v. Bouanchaud, 178 La. 26, 150 So. 567.

In the case now before us, there was no injunction by which the seizure was released but merely an appeal from the seizure. The same result could have been accomplished by obtaining an injunction' against the sale of the property by the sheriff under the writ of seizure and sale.

Under the circumstances of this case and in the light of the foregoing authorities, the award for attorney’s fees and damages made by the Court of Appeal will not be disturbed.

For the reasons assigned, the judgment of the Court of Appeal, First Circuit, in favor of the plaintiff is affirmed; and the judgment in favor of the defendant on the reconventional demand is hereby amended and modified to award eight per cent. (8%) interest from date of maturity, and in all other respects the judgment is affirmed; plaintiff to pay all costs.

O’NIELL, C. J., concurs in the reducing of the interest to 8% but otherwise dissents.

McCALEB, Justice

(dissenting in part).

I concur in the ruling which reduces the interest recoverable on the reconventional demand to '&% but I am in utter disagreement with the other conclusions of the majority.

The principal question presented in this ■case is whether a plaintiff, whose property has been seized under an admittedly illegal writ of executory process, may recover damages for the mental anguish, humiliation and inconvenience suffered by him as a consequence of the unlawful act.

The Court of Appeal approved plaintiff’s recovery for attorney’s fees and monetary losses resulting from the illegal seizure of the house trailer but, paradoxically, refused to allow redress for the vexation, humiliation and embarrassment sustained by him. The reason given by the Court for the denial was that such damages will not be allowed where plaintiff is the defendant’s debtor and defendant has proceeded (though illegally) in good faith. See 31 So.2d 452, 455. The writ of review was granted on plaintiff’s application for the purpose of determining the correctness ■of that conclusion of the Court of Appeal as well as to consider whether defendant was entitled to recover 10% interest on its claim in reconvention.

The majority opinion, as I read it, fully sustains the resolution of the Court. of Appeal that damages for humiliation, inconvenience, etc. are not recoverable in actions' ex delicto for illegal seizure of property where it appears that the seizing creditor was in good faith and that the debt for which the process issued was due and owing. Indeed, the opinion goes a step farther and holds in effect that plaintiff is wholly remediless and authorities are cited which are said to support this view.

The cases cited by the majority are not apposite and the reasoning upon which the conclusion is predicated is of questionable validity. But, above all, the opinion ignores the prior jurisprudence to the contrary and, thus, overrules that jurisprudence by indirection.

Initially, it is pertinent to consider whether there is any sound basis for the majority ruling. Is there any logic in saying that a plaintiff should be denied damages for the illegal seizure of his property at defendants instance because defendant was not actuated by malice and plaintiff is a debtor? I confess my inability to find a fitting reason — for, surely, a- tort has been committed and neither plaintiff’s indebtedness nor defendant’s lack of malice has any legal significance as an excuse for the wrong, although it might affect the extent of the damage.

This court has never heretofore approved of such a proposition. Conversely, the decision in the case at hand effectively overrules the case of Haas v. Buck, 182 La. 556, 162 So. 181, 183, which is much weaker from plaintiff’s standpoint than the instant case.

The salient facts of Haas v. Buck were that Buck, as trustee of certain insurance companies, brought a suit against Haas on a promissory note. The latter answered and, after a trial on the merits, judgment was rendered in Buck’s favor. After rendition of the judgment but before the expiration of three days, Buck caused execution to issue prematurely and seized property belonging to Haas. Within the three day period from rendition, Haas applied for a new trial. The application was overruled and Haas did not appeal from the judgment or enjoin the seizure. Later, the property was sold to satisfy the judgment. During the interim, however, Haas brought a suit sounding in damages for the premature seizure of his property under the judgment. Buck filed an exception of no right or cause of action which was sustained in the lower court. On appeal, this court reversed the judgment and remanded the case for trial on its merits, holding that:

“There can be no doubt that an action for damages arises from the wrongful seizure of property. Civ.Code, art. 2315; Durbridge v. Wentzel, 17 La.Ann. 20. Such an action accrues at the moment of the levy, and is not postponed until a final determination of the litigation involving its validity. Duperron v. Van Wickle, 4 Rob. 39, 39 Am.Dec. 509.
“At the time this suit was instituted, plaintiff had already suffered some damages from the violation of his rights, if from nothing more. Plaintiff’s failure to enjoin the seizure or to appeal suspensively from the judgment under which it was levied, cannot destroy his cause of action.”

The court did not say in the Haas case (nor has it ever said before) that Buck’s good faith or the fact that Haas owed the debt affected the cause of action. And yet, there, the issuance of the fi. fa. was merely premature as Haas’ motion for a new trial was overruled, the seizure sustained and the property sold to satisfy the judgment.

The decisions cited in the main opinion do not sustain the view that damages are not recoverable for illegal seizure where plaintiff is the debtor of the seizing creditor and the latter acts in good faith. Those cases are Oxford v. Colvin, 134 La. 1094, 64 So. 919; Fallin v. J. J. Stovall & Sons (on rehearing), 141 La. 220, 234, 74 So. 911, 915; Chappuis v. Preston, 28 La.Ann. 729; Townsend v. Fontenot, 42 La.Ann. 890, 8 So. 616 and Jackson v. Bouanchaud, 178 La. 26, 150 So. 567 and are authority only for the proposition that attorney’s fees are not a recoverable item of damage for securing an injunction against an illegal seizure if the seizing creditor is in good faith and the plaintiff in the injuncton is the defendant in execution. This rule is now well established — although, as pointed out in Jackson v. Bouanchaud, supra (where most of the prior jurisprudence is cited and discussed), there has been considerable conflict in the decisions. However, the underlying reason why attorney’s fees are ordinarily not recoverable stems from the general rule that these items are not legally considered to' be elements of damage, in the absence of statute, and not because the seizing creditor is in good faith or because the plaintiff owes the debt.

To buttress its holding in this case, the majority relies heavily on Oxford v. Colvin, supra, and quotes the following statement from that case:

“As relates to attorneys’ fees and damages claimed by plaintiff in injunction, we do not think that in this case the plaintiff in injunction is entitled to either(Emphasis mine.)

A reading of the opinion in Oxford v. Colvin will readily exhibit that the damages to which the court was referring were not actual damages (as claimed by plaintiff herein) but punitory damages which are not allowable under our law. See McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, 85 A.L.R. 1147.

I respectfully dissent.

       The opinion recognizes that, since the defendant did not apply for a writ of certiorari, this court cannot reverse the allowance to plaintiff for attorney’s fees and monetary losses. In view of the conclusion that a damage suit cannot be maintained under the circumstances appearing here, it is evident that, if defendant had applied for a writ, the entire award of the Court of Appeal would have been disallowed.

       The Court of Appeal erred in permitting recovery of attorney fees in the instant matter.

       See 134 La. at page 1097, 64 So. at page 920, where it is stated: “Plaintiff claimed the fee of attorney and punitory damages; * * * ”.


text:
    214 La. 520
    W. HORACE WILLIAMS CO., Inc. v. COCREHAM.
    No. 38353.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rehearing Denied Dec. 13, 1948.

      Deutsch, Kerrigan &.Stiles, of New Orleans, for plaintiff-appellant.
    F. O. Rousset, of New Orleans, for the Collector.
    John B. Smuílin, Chief Counsel and Stephen B. Rodi, Atty., both of Baton Rouge, and Albert S. Rose, Atty., Dept, of Rev., State of La., of New Orleans, for defendant-appellee.
   McCALEB, Justice.

W. Horace Williams Company, Inc., in Liquidation, has appealed from a judgment of the Civil District Court which affirmed a decision of the State Board of Tax Appeals disallowing the deduction of certain taxes by appellant on its state income tax returns for the years 1936 through 1940 and refusing a refund of taxes paid (allegedly through error) by appellant for the year 1941. The controversy arises'out of the following state of admitted facts.

In 1931, Gulf Crushing Company, Inc., a subsidiary of appellant, sold all of its assets to Oyster Shell Products Corporation, Inc., for the sum of $500,000.00, payable over a period of years in first mortgage gold bonds issued by the purchaser. The book value of the property sold amounted to $42,682.54, so that the gross profit to be realized by Gulf Crushing Co., Inc., would be $457,317.46, when all of the bonds given in payment were collected. Availing itself of the provisions of the Federal income tax law relative to sales on an installment basis, see 53 Stat. 24, Section 44(b) of Title 26 U.S.C.A., Gulf Crushing Company elected to pay the tax on the capital gain (or income derived from the sale) during the years in which the bonds became due and exigible.

In 1932, Gulf Crushing Company was liquidated and appellant acquired its assets. Thereafter, appellant, in computing its net income in its returns to the State, deducted the Federal income tax paid by it on the proceeds of the bonds of Oyster Shell Products Corporation, as they matured. These deductions were taken during the years 1936 through 1940. In 1941, the deduction was not taken but appellant subsequently made claim for a refund on the ground that the tax was erroneously paid because of an oversight in not claiming the deduction. An investigation was made by the Collector which resulted in his disallowance of the deductions for the previous years and the filing of deficiency claims against appellant. This litigation followed.

The question of law presented for determination involves an interpretation of Sections 9(c) and 10(a) (5) of the State Income Tax Law, Act No. 21 of 1934, as amended, Dart’s Statutes, Sections 8587.9 and 8587.10, which read as follows:

‘•‘Section 9. Deductions from Gross Income. — In computing net income there shall be allowed as deductions:
“(c) Taxes generally. — Taxes paid within the taxable year * * *
“Section 10. Items Not Deductible.—
“(a) In, computing net income no deduction shall in any case be allowed in respect of—
“(5) Any amount otherwise allowable as a deduction which is allocable to income wholly exempt to the taxpayer from, taxes imposed by this act * *

The Collector of Revenue relies on Section 10(a) (5) of the act, which he maintains modifies the broad provisions of Section 9(c). Accordingly, he contends that,since the income represented by the proceeds of the bonds was hot taxable (being earned in 1931, prior to the enactment of the law), no deduction of Federal taxes paid on such income is permissible.

The position of appellant is three-fold. Initially, it is said that to deny a deduction of all or any Federal taxes paid by appellant during the taxable years would be to allow the Legislature to tax something other than net income and thus render the state income tax law invalid as Section 1 of Article X of the Constitution provides that “Equal and uniform taxes may be lev-, ied upon net incomes * * * In other words, the contention is that, if the law be construed to deny deduction for taxes in computing net income, the provision would be inimical to-the Constitution permitting the levy of taxes on net incomes inasmuch as net income, as ordinarily understood, means gross income less deduction of the usual and ordinary expenses of doing business or of earning income, including taxes.

We see no merit whatever in this proposition. The constitutional provision authorizing the levy of taxes upon net incomes plainly contemplates that the Legislature will have some discretion in defining net income by providing for deductions from gross income which will constitute such income. As long as reasonable and ordinary expenses are allowed as deductions in computing net income,, the Legislature does not violate ¡the ■ constitutional provision.

The next contention of appellant is that Section 10(a) (5) of the Act is inapplicable because the provision disallowing deductions of amounts otherwise permissible refers only to deductions allocable to income wholly exempt from taxes imposed by the act and that the taxes sought to be deducted here are allocable to capital of the taxpayer and not to income. This argument seems to be predicated on the theory that, since-the income was earned in 1931, the proceeds received from the bonds of Oyster Shell Products Corporation in subsequent years was capital and that, hence, the Federal income tax paid on the installments was allocable to capital and not income.

The point does not impress us. It is plain that the taxes claimed by appellant as deductions were Federal income taxes which were paid on the capital gain or income made by Gulf Crushing Company in 1931 and which, but for the latitude accorded by the Federal income tax law (permitting taxpayers to make returns on an installment basis), would have had to be paid during 1931. Hence, the circumstances that the tax was paid in installments after 1931 does not alter the fact that it was paid on income and was allocable thereto.

The third and final contention of appellant is that Section 10(a) (5) of the Act is inapplicable because the income to which the deduction is allocable is not exempt from the tax imposed by the State income tax law. This proposition is founded on a restricted meaning of. the word “exempt” as used in the statute. It is said that the word “exempt” refers to income specifically excluded from the computation of gross income by Section 8 of the statute and that the. income of Gulf Crushing Company was not exempt — rather, it was nót subject to taxation because it was earned prior to the enactment of the law.

We cannot accord to the word/‘exempt” such a narrow and unseemly meaning for to do so would utterly destroy the intention manifested by the Legislature which was to deny deductions for any amount expended (or liability incurred) by the taxpayer allocable to income free from state taxes.

The foregoing view is fully sustained by the Federal courts in their interpretation of similar provisions of the Federal income tax law. Those decisions, under well-settled rules of construction, are pertinent to a consideration of our income tax law as the Louisiana statute was patterned on the Federal law. See Standard Oil Co. of New Jersey v. Collector of Revenue, 210 La. 428, 27 So.2d 268. In truth, the language of Section 10(a) (S) of the act is practically identical with Section 24(a) (5) of the Federal act, which provides that, in computing net income, no deduction shall be allowed in respect of “any amount otherwise allowable as a deduction which is al-locable to one or more classes of income * * * wholly exempt from the taxes imposed by this chapter.” See 26 U.S.C.A. § 24. This section has been interpreted by the Tax Court of the United States on several occasions (see National Engraving Co. v. Commissioner, 3 T.C. 178; Curtis v. Commissioner, 3 T.C. 648 and Heffelfinger v. Commissioner, 5 T.C. 985) and, prior to its enactment, the United States Circuit Court of Appeals for the Third Circuit, in Lewis v. Commissioner of Internal Revenue, 47 F.2d 32, held that, in construing the Revenue Acts of 1918 and 1921 (40 Stats. 1065 and 42 Stats. 237), a taxpayer was not entitled to deduct expenses incurred in earning nontaxable income even though there was no specific provision excepting such expenses from the deductions allowed by those laws.

The matter of Curtis v. Commissioner, supra, decided by the Tax Court in 1944, presented the same' question raised in the case at bar. There, petitioner, a Notary of the State of New York, sought to deduct from his Federal income tax return the expenses allocable to income earned in his official capacity, which was not subject to the Federal tax. In resolving that the expenses were not deductible, in view of Section 24(a) (5) of the Federal Act, the Court said:

“Petitioner’s contention apparently is advanced on the assumption that the phrase ‘income wholly exempt from the taxes’ is used in section 24(a) (5) solely to denominate a special type income specifically ex-cludable from the general definition of ‘gross income’ by statute or on constitutional grounds. However, the phrase is not to be so limited. Income tax laws are to be given a sensible interpretation. Rhodes v. Commissioner [6 Cir.], 100 F.2d 966; Margaret R. Phipps, 42 B.T.A. 329; affirmed, 124 F.2d 288, and one which will effectuate the legislative intention. Brons Hotels, Inc., 34 B.T.A. 376. The language of section 24(a) (5), including therein the phrase in question, is susceptible of only one sensible interpretation, namely, that a taxpayer is allowed no deduction for expenditures which are allocable to income, that is nontaxable for whatever reason. Moreover, this interpretation is in accord with the purpose of the provision and, hence, the legislative intent as indicated by the discussion thereof in the House of Representatives, wherein it was stated: ‘ * * * This particular amendment has reference to the question of deductions from gross income. It makes very certain the text of the bill disallowing deduction of expenses incurred in the production of non-taxable income. (Cong.Rec.Vol. 78, p. 3000.)’

“Nor does this interpretation do violence to the wording of the section. The language of a revenue act, generally speaking, is to be given its ordinary and natural meaning. Helvering v. [William] Flaccus Oak Leather Co., 313 U.S. 247 [61 S.Ct. 878, 85 L.Ed. 1310]; Helvering v. San Joaquin Fruit & Investment Co., 297 U.S. 496 [56 S.Ct. 569, 80 L.Ed. 824]. The nub of petitioner’s contention here concerns the meaning of the word ‘exempt’. This is not a technical term. It is of common usage and is defined by Webster as meaning ‘free or released from some liability’. Thusj when read in the usual sense, section 24(a) (5) simply says, in short, that no deduction shall in any case be allowed in respect of any amount allocable to income free or released of taxes. It can not be gainsaid that petitioner’s income from notarial fees was released from taxes. We reject petitioner’s contention that Section 24(a) (5) is inapplicable.”

The judgment appealed from is affirmed.

       State Income Tax Law, Act No. 21 of 1934, did not become effective until the year 1935.

       Tax statutes are to be given a reasonable construction with a view to carrying out the legislative purpose and intent. 51 Am.Jur. Section 309, page 361; Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 85 L.Ed. 1310. It is only where the legislative intent is doubtful that tax statutes are to be interpreted liberally in favor of the taxpayer. State v. Standard Oil Co., 188 La. 978, 178 So. 601, and eases there cited.


text:
    214 La. 531
    WALTERS v. CHILDERS.
    No. 38190.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      M. C. Redmond, of Monroe, for plaintiff.
    J. B. Thornhill, of Monroe, for defendant-appellee.
   McCALEB, Justice.

This is a devolutive appeal from a judgment denying a preliminary injunction to restrain the sale of certain mortgaged property under executory process. The controversy arises out of th'c following state of facts.

On January 12th 1946, appellee, alleging that he was the holder and owner of a mortgage note executed by J. H. Childers and Mary L. Childers (his mother and father), obtained an order of executory process against the real estate securing the note. The property was seized by the sheriff under the writ and he advertised it for sale in accordance with law. Prior to the date of the sale, plaintiff-appellant filed this suit claiming that appellee (her brother) was not the owner of the mortgage note; that he had obtained it through fraud; that, inasmuch as she owned an undivided one-third interest in the property, an injunction should issue prohibiting the sheriff from proceeding further under the writ of executory process and -that, finally, she have judgment in her favor can-celling and annulling the mortgage note and declaring that appellee is not the owner thereof. Upon her allegations and prayer, she obtained a rule for appellee to show cause why a preliminary injunction should not issue restraining further proceedings under the writ. After a hearing, the judge denied the preliminary injunction and plaintiff prosecuted this devolu-tive appeal from the adverse decision. In the meantime, the sheriff proceeded with the advertisement and the property was sold under the writ of seizure on February 23rd, 1946.

It is apparent, at the outset, that the issue presented by this appeal is moot. The appeal is from a judgment on a rule nisi refusing the issuance of a prelitninary injunction to restrain the sale of the property. Since the sale is an accomplished fact, there is no order or judgment this court could render to grant appellant the relief she seeks or undo that which has already been done.

This case is a counterpart of Unity Industrial Life Company v. Dejoie, 197 La. 38, 200 So. 813, where defendants petitioned for an injunction in the foreclosure proceedings, alleging that there was no consideration for the giving of the mortgage note and that plaintiff perpetrated a fraud in connection with its issuance. After a trial on a rule nisi, the judge refused a preliminary injunction and defendants appealed devolutively. During the pend-ency of the appeal the property was sold under the writ and the appellee moved to dismiss on the ground that the case was moot. In sustaining the motion, the court quoted with approval from Bank of La Fourche v. Barrios et al., 167 La. 215, 118 So. 893, 894, wherein it is stated:

“Since any decree this court could render would not have the effect of annulling the sale of the mortgaged property after its adjudication to plaintiff bank, the issues here tendered by defendant present merely moot questions, which we decline to decide.”

It was suggested during the oral argument that the entire case not moot inasmuch as appellant has the right to' have the validity of the mortgage note determined. This may be true, but that question can be decided on a trial of the case on its merits. It cannot be disposed of .on this devolutive appeal concerning the sole issue of whether the trial judge properly refused the preliminary injunction, which issue has become moot “due to the fact that the''property has already been sold.” See Unity Industrial Life Ins. Co. v. Dejoie, supra [197 La. 38, 200 So. 814].

The appeal is dismissed.

       To the same effect see Citizens’ Bank v. Bellamy Lumber Co., 140 La. 407, 73 So. 308; King v. Hardwood Mfg. Co., 140 La. 753, 73 So. 853 ; Gouaux v. Lockport Central Sugar Refining Co., 156 La. 889, 101 So. 255; Ouachita National Bank v. Shell Beach Construction Co., 154 La. 709, 98 So. 160 and State v. Mutual Investment Company, Inc., 214 La. 356, 37 So.2d 817.


text:
    214 La. 535
    STATE v. JOHNSON.
    No. 39115.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Campbell & Padgett, of Bossier City, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and A. M. Wallace, Dist. Atty., of Benton, for ap-pellee.
   McCALEB, Justice.

Earl Johnson was indicted, tried and convicted for attempted manslaughter. Prior to sentence, he filed a motion in arrest of judgment based on the ground that he had not been charged with a crime in the manner provided by law. The judge overruled the motion and sentenced him to three years at hard labor in the penitentiary. He has appealed.

The only question presented for consideration is whether the indictment is fatally defective. It charges, in substance, that appellant “attempted unlawfully to kill S„ M. Morgan Jr.” Counsel for appellant asserts that, in order for the crime of attempted manslaughter to be charged in the form permitted by Article 235 of the Code of Criminal Procedlure, the indictment should have alleged that appellant “attempted to unlawfully kill S. M. Morgan, Jr.” This contention is founded upon the premise that, since Article 235 sets forth that the short form for manslaughter is “A. B. unlawfully killed C. D.”, the offense of attempted manslaughter should be charged “A. B. attempted to unlawfrtlly kill C. D.” in order to comply with the form indicated for attempts.

We agree with the trial judge that there is no substantial difference between the averment that appellant “attempted unlawfully to kill” and that he “attempted to unlawfully kill” as it is clear that, in either case, he is fully advised of the nature and cause of the accusation against him. If the indictment be defective (which we doubt), it is merely a formal defect which cannot be considered on a motion in arrest of judgment, see Articles 517 and 518 of the Code of Criminal Procedure, objection thereto should have been raised by demurrer or motion to quash in advance of trial.

Article 252 of the Code of Criminal Procedure declares:

“No indictment shall be quashed, set aside or dismissed for any one or more of the following defects: * * * (Third) That any uncertainty exists therein. * * * If the court be of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to cure such defect.”

Article 253 provides, in part:

“No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form •or substance of the indictment, unless the objection to such indictment, specifically •stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court in its discretion permit. * * * ”

The conviction and sentence are affirmed.


author: TALIAFERRO, Judge.

text:
    DENTON v. ACME TIRE & RUBBER CO., Inc., et al.
    No. 7234.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellants.
    J. M. Henagan, of Jena, for appellee.
   TALIAFERRO, Judge.

Defendants,-Acme Tire and Rubber Company, Inc., and its insurer, The Travelers Indemnity Company, appealed from judgment that condemned them in solido to pay plaintiff the amount of damages done his truck in a collision between it and the pickup Dodge truck of the first named defendant, which occurred on May 20, 1946, in the day time on Highway No. 84, a few miles east of Winnfield, Louisiana. Plaintiff’s truck with attached trailer heavily loaded with saw logs was traveling westerly. The other truck was going easterly. The collision occurred approximately forty feet west of a bridge of width the same as the black topped portion of the road, or eighteen feet.

Plaintiff alleged and contends that his truck, then driven by his agent, O. D. Powell, was going at a reasonable rate of speed and maintained its side of the road while on the bridge and thereafter; and that the driver of the Dodge truck carelessly and negligently veered from his proper side of the road, rammed plaintiff’s truck on the front portion of its left end, from the impact of which the suit for damages arose.

Defendant alleged that plaintiff’s truck, going at excessive speed under the prevailing conditions and circumstances, left its side of the highway and sideswiped the Dodge truck; that plaintiff’s driver, Powell, did not have his véhicle under proper control. In the alternative, defendants specially plead contributory negligence of plaintiff’s driver and base the plea upon the acts of negligence accredited to him in the answer.

In addition to the damages to his truck, plaintiff prayed for judgment for an amount covering the loss of its use between the time of accident to date the vehicle was restored to running condition. The lower court rejected this latter claim.

Plaintiff, in this court, has not prayed for any amendment of the judgment, but, on the contrary, asks for its affirmance.

The answer of the defendants, together with the allegations of the petition, tenders the primary question of the exact location of the two trucks with respect to the center of the road when the contact between them occurred.

The Dodge truck was being driven by a Negro employee named Cicero Hatten. He was accompanied by O. H. Naylor, then president of the Acme Tire and Rubber Company, Inc., but who has since disposed of his stock therein and is not now connected therewith. As a witness, Naylor testified that the surface of the road was slippery from light rain then falling; that the other truck was observed by him when about one thousand feet away; that the Negro driver, in view of the narrow bridge ahead of them, gradually reduced his speed to about five miles per hour to allow the heavily loaded truck coming, at a speed of thirty miles per hour, to first pass over it; that the right wheels of the Dodge truck were eight inches north of the medial line of the black top surfacing when the collision occurred, and that if plaintiff’s truck had held to its side of the road or had been driven upon the shoulder, as contended, the collision would not have happened. However, he admits he did not inspect the locus immediately after the accident nor since, to ascertain if plaintiff’s truck, after crossing the bridge, to any extent left the road just prior to the collision.

Hatten, the Negro driver, at time of trial, was, from sudden illness, not physically able to attend court. It was stipulated that if he were present and testified, his version of the facts of the case would substantially agree with that.given by Naylor.

• There were no other eyewitnesses to the accident save plaintiff’s driver. He testified that as his vehicle entered upon the bridge he pulled it to its “extreme right” side, reduced its speed to twenty or twenty-five miles per hour, and when its front end was some forty feet from the bridge the Dodge car, coming at about the same speed, partially on its wrong side of the road, ran into plaintiff’s truck. This driver says that as he cleared the bridge he “neared the shoulder”. He did not testify that in an effort to avoid the collision he pulled the left portion of his vehicle off of the black topping, but as we shall hereinafter discuss, he evidently -did this. His truck and trailer, from the force of the impact, veered to their left, quit the road, and the front end of the truck finally rested in a deep barrow pit full of water. The Dodge truck stopped at the locus of the impact with its front end practically above the road’s center and with its rear end pointing northerly.

Eddie Hobbs, an employee of plaintiff, and driver of one of his log trucks, arrived with a load of logs on the scene of the accident not over ten minutes after it happened. He found an unbroken line of tracks from near the west end of the bridge to the rear end of the trailer after it rested. A state trooper who viewed the scene five days subsequent to the accident, found the same tracks about which Hobbs testified. Other witnesses observed the location and route of these tracks and corroborated the testimony of the trooper and Hobbs with respect thereto. As the logs on the trailer weighed approximately fifteen thousand pounds and the shoulder being then wet from rain, we would expect to see very definite tracks of the truck and trailer on the road’s shoulder and adjoining ground not' only immediately after the accident but for some time thereafter.

It is extremely difficult to understand why this accident happened. Each driver saw the other when one thousand feet apart. It was day time. Both vehicles were going at a reasonable rate of speed and it is not shown nor intimated in the testimony that from said speed either driver lost control of his vehicle.

The testimony of the two drivers is wholly irreconcilable. The trial judge evidently reached the conclusion that defendant’s truck encroached upon plaintiff’s -side of the road just as he was endeavoring to go upon the bridge and in doing this he must have attached considerable importance to the testimony concerning the location and the route of the tracks accredited to plaintiff’s vehicle. This physical evidence, he doubtless thought, was sufficient to bring about a preponderance in the evidence for plaintiff; and, in this conclusion, we are not prepared to disagree. Truly, it may appropriately be said that no manifest error appears in the judgment from which defendants appeal. For the reasons herein assigned, the judgment is affirmed with costs.


author: HARDY, Judge.

text:
    FRENCH v. DETROIT FIRE & MARINE INS. CO.
    No. 7236.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1948.
    Oglesby & Oglesby, of Winnfield, for appellant.
    Cas. D. Moss, of Winnfield, for appellee.
   HARDY, Judge.

This is an action in which plaintiff, insured, seeks to recover from the defendant, insurer, an amount representing the actual cash value of plaintiff’s automobile, which was totally destroyed by fire, under the terms and provisions of an insurance policy issued by the defendant. Plaintiff further asks for statutory penalties to the extent of 25% of the total amount of the loss, attorney’s fees, etc. After trial there was judgment in favor of plaintiff in the full sum of $1,462.50, representing the amount of the adjusted loss and 25% penalty, and further judgment for the sum of $250 as attorney’s fees. From this judgment defendant has appealed.

Plaintiff’s claim for 25% of the adjusted amount of the loss sustained was based upon the familiar provisions of Act No. 59 of 1921, Ex.Sess. Defendant, in resisting plaintiff’s demands, while admitting the loss and its adjustment to the extent of $1,170, pleads payment of said sum, alleging that said payment was made by delivery of check to the loss payee, the General Finance Company of Winnfield, Louisiana, said check being payable jointly to plaintiff and the finance company. Defendant further averred that the terms of the policy provided that loss thereunder be paid jointly to plaintiff and the loss payee.

It is important in setting forth the salient facts involved herein that the chronological order of events in connection with this matter be specifically stated.

On September 12, 1947, when a policy of insurance issued by defendant in favor of insurer was in full force and effect, plaintiff’s automobile, covered by the policy, was totally destroyed by fire. 'On November 17, 1948, the attorney, who was on or about that date employed by plaintiff, directed q letter to defendant’s adjuster, informing it of the loss by fire of the automobile, covered by the policy described in said letter, on September 12th, demanding payment of the amount of the loss.

On November 22, 1947, the adjuster replied to the letter of plaintiff’s attorney, advising that they had twice before written the defendant company, insurer, requesting instructions regarding the handling of the claim, but had received no reply, and that they were, as of the same date, again writing the company.

On November 29, 1947, a letter was directed to plaintiff, who was employed in Texas City, Texas, by his attorney, enclosing proofs of loss, copies of bill of sale covering the wrecked automobile, which was being disposed of to the insurance company for its salvage'value, and-advising that the adjuster had proposed payment of the full value of the car in the amount of $1,170. This letter further requested the return of the enclosed papers in order that settlement might be effected. Plaintiff executed and returned the papers to his attorney, who thereupon forwarded the same to defendant’s adjuster under date of December 4, 1947. On or about December 10, 1947, defendant transmitted a check or draft in the amount of $1,170, made payable jointly to plaintiff and the General Finance Company, to one Alvin S. Hahn, who was the local agent of the defendant insurer in the town of Winnfield, Louisiana. It is pertinent to note further that Hahn was the mortgagee of the destroyed automobile, operating his finance business under the name of General Finance Company. Hahn held the check in his possession from and after its receipt and did not even notify plaintiff that the check had been received until January 24, 1948, when he directed a letter to plaintiff at Texas City,.Texas, advising him that the settlement by the insurance company was on hand but further demanding settlement by plaintiff of certain accounts due.

On January 28, 1948, plaintiff’s attorney wrote defendant’s adjuster advising that proofs of loss and bill of sale had been forwarded on December 4th, in accordance with the agreed settlement. Counsel further advised that Alvin S. Hahn was withholding delivery of check in settlement of the claim to plaintiff, insisting that plaintiff pay certain items of indebtedness to Hahn’s finance company. Counsel further advised that unless settlement of the claim was fully and finally made on or before February 4th, which would mark the expiration of the sixty-day period since forwarding of proofs of loss, he would insist upon payment of the statutory penalty. In response to this letter defendant’s adjuster wrote counsel that the company had fulfilled its obligation by forwarding draft payable to plaintiff and the General Finance Company in the amount of $1,170, representing the agreed loss; that the draft had been forwarded “to the agent” (Hahn); that the company had no further interest in the matter and that any further details should be taken up direct with Hahn. It is further established that plaintiff’s attorney contacted Hahn, who refused to negotiate with him.

This suit was filed on February 9, 1948, and on February 11, 1948, Hahn advised plaintiff, who was in Hahn’s office on that date, that he was ready to settle with him. It is significant that this offer of settlement was not made until after the accounts, which, with the exception of the mortgage debt, were due by parties other than plaintiff, had been paid.

On the basis of the above facts it is apparent that defendant is not in a position to sustain its plea of payment. It is elementary that payment presupposes a delivery to the proper person. In this instance there was never any delivery nor unconditional tender of delivery to plaintiff, who was unquestionably the proper person under the policy of insurance to receive same. The only “payment” consisted of the forwarding of a draft, which, of course, would not have constituted payment under any conditions until the proceeds had been received, to defendant’s local agent at Winnfield. Unfortunately, the agent chose to receive and hold the draft, not solely in his capacity as agent, but, as is obvious from the facts reflected in the record, primarily as a creditor of plaintiff. It is indisputable that defendant’s agent, Hahn, never made any tender of delivery of the draft, much less a payment to plaintiff, but attempted to use his possession of the draft, into which he had entered as defendant’s agent, for the purpose of effecting payment not only of the amount of his mortgage but of other accounts. It is more or less beside the point, but simply adds additional weight to the established facts, to note that these accounts were contracted by parties other than plaintiff.

It is also conclusively established that defendant was informed as to the existing conditions; fully realized that there was a conflict of interest as between the insured and its own agent, and chose to do nothing about discharging its contractual obligations to plaintiff.

Counsel for defendant urges that a tender is not necessary when the party to whom made indicates his unwillingness to accept the tender. Conceding this to be a sound legal principle, it has no application under the facts of this case for no tender was ever made to plaintiff.

Clearly the defendant insurer is convicted of not only an unseemly delay in negotiating a settlement of its obligations, •but further of a woeful disinterest and lack of regard for the rights of its insured. Courts are always loath to impose statutory penalties and consistently refrain from so doing where there is evidence of complete good faith and substantial effort of a party to perform its obligations in an expeditious, proper and equitable manner.

In the instant case we are unfavorably impressed with the conduct of the defendant insurer. It is true that the defendant has alleged payment jointly to plaintiff and the loss payee under the terms of the policy, but neither the policy nor plaintiff’s proofs of loss, nor any other pertinent documents, nor any testimony in substantiation of this allegation were introduced on trial of the case.

In this case defendant has elected to rest upon a technical and strained defense. Knowing that a dispute existed as to the delivery of the proceeds due under the adjustment, defendant, in order to protect itself from a penalty, could and should have deposited the proceeds of the policy and cited the contesting claimants to assert their respective claims thereto. Benedict v. Grand Lodge, K. P., La.App., 148 So. 280. Failing this precautionary procedure defendant cannot at this late date avoid the infliction of the penalty imposed by statute.

With respect to the quantum, no issue has been made by defendant as to the principal amount. The penalty of 25% is mandatory under the statute and defendant has not contested the amount of $250 which was awarded as attorney’s fees.

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


author: KENNON, Judge.

text:
    HOWELL v. THOMPSON.
    No. 7253.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Vincent Hazleton, of Alexandria, for appellant.
    K. Hundley, of Alexandria, for appellee.
   KENNON, Judge.

This case is before us on an appeal by the defendant, Ira L. Thompson, Jr., from a judgment condemning him to pay a real estate broker’s commission of $650.

Plaintiff, a licensed real estate broker in the City of Alexandria, Louisiana, alleged that the sale of defendant’s property to a .Mr. William D. Farmer came as the result of efforts of Mr. S. R. Cummins, one of plaintiff’s real estate salesmen.

Defendant in his answer admitted that his property at one time 'had been listed with plaintiff, but that this listing had expired long before the negotiations were begun with Mr. Farmer. Defendant in his answer admitted that he went with plain-, tiff’s agent to see Mr. Farmer concerning a sale of his property for a price of $13,000 net to defendant; that Mr. Farmer refused to accept the property at the agent’s price of $13,650 ($13,000 net plus $650 real estate commission), and that when the joint efforts of defendant and plaintiff’s agent were fruitless, defendant suggested that plaintiff’s agent cut his commission and that after his refusal to agree to cut his commission, defendant advised plaintiff’s agent that the deal was off; that later in the same day, the prospective purchaser called the defendant direct and that' the sale was consummated without further assistance from plaintiff’s agent and that consequently, neither plaintiff nor his agent is entitled to the commission sued for.

The sale upon which plaintiff’s claim for a commission is based was consummated June 27, 1947. The record shows that defendant made a one month listing of his property with plaintiff on May 18, 1946; that no sale was effected by plaintiff during this period and that on July 25, 1946, defendant on his own initiative sold the property to one James W. Thompson; that on September 4, 1946, this purchaser deeded the property back to defendant; that subsequently, defendant verbally continued negotiations with plaintiff’s agent Cummins, who showed defendant’s property to prospects in March and April of 1947. One of these prospects, Dr. Bowden, was interested ■in the property provided an exchange agreement could be worked. out. The record shows that defendant went with Cummins to look at the property which was involved in the proposed deal with Dr. Bowden.

On Friday, June 20, 1947, Cummins, plaintiff’s agent took Mr. Farmer over to see defendant’s property. Defendant was away from home but his father and mother showed Mr. Cummins and his prospect over the premises. Defendant returned home on Sunday, June 22nd and contacted Cummins to inquire about the prospective purchaser. Defendant went to Cummins’ home in Pineville; the two of them drove to Mr. Farmer’s home. Some thirty minutes to an hour was spent in discussing the proposed sale but no agreement was reached between the parties as Mr. Farmer was unwilling to pay the $13,650 quotation, which included $13,000 net to Mr. Thompson .and $650 commission. Defendant drove Mr. Cummins back to his house and on the way asked him if he would cut his commission. This- Mr. Cummins declined to do and defendant returned to his home.

About an hour later there was a telephone conversation between defendant and the prospective purchaser. The two arranged to meet at Wainwright’s Station in Pineville, where an agreement to sell was entered into. Mr. Farmer paid defendant $500 as evidenced by a “binder” in which defendant agreed to hold the property “off the market” until July 1, 1947.

After this Sunday noon agreement was signed, defendant requested the purchaser to go see his attorney who was familiar with the property and- on the following Friday, June 27th, the sale was consummated at a price of $13,000, $3,000 cash and the assumption of a mortgage in ¿he amount of $10,000.

The following paragraph from defendant’s -brief gives a concise statement of defendant’s contention before this Court: “Defendant’s position is that there was no contract between himself and the plaintiff for the payment of any commission; that plaintiff’s salesman was acting as a free agent in the hope of consummating a sale in. excess of a net price quoted by defendant; that plaintiff’s real estate salesman did not consummate a sale and refused to cut his commission in order to effect a deal; that he failed to bring the parties together on common terms and had withdrawn from the negotiations after he had exhausted his efforts to make a sale and that defendant resumed negotiations with the prospective purchaser, and. since the sale was ma.de after the parties became deadlocked on a matter of price and the real estate salesman refused to make any concessions regarding the price, that no payment of a real estate commission was due to plaintiff.”

We find from the record that the defendant did engage the services of plaintiff’s real estate firm in the sale of his home at a price which would bring to defendant $13,000 net; that plaintiff and his agent beginning in March and up to the time of sale, made a serious effort to find a purchaser for defendant’s property; that defendant cooperated and went with plaintiff’s agent to look over the property which one of the prospective purchasers had offered in an exchange arrangement; that the purchaser Farmer became interested in defendant’s property through the efforts oi plaintiff’s agent; that plaintiff’s agent carried Farmer to see defendant’s property on Friday; that defendant sought out plaintiff’s agent on the Sunday that the sale agreement was made; that he acquiesced in the offer of his property by plaintiff’s agent to the prospective purchaser at a price of $13,650, which included plaintiff’s commission of $650. We further find that plaintiff’s agent did not withdraw from the negotiations at the time defendant drove the agent home after the Sunday morning visit with the prospective purchaser. We conclude that the Sunday negotiations remained very much alive and that when the defendant resumed negotiations within an hour after leaving plaintiff’s agent, and concluded a written purchase agreement a few minutes later, there had been no deadlock or break-off of negotiations.

The authorities cited in the cases of Jeter & Monroe v. Daniels, La.App., 25 So.2d 911 and White v. Havard et ux., La.App., 25 So.2d 108, justify the District Court’s judgment for plaintiff. Plaintiff produced, in the person of Farmer, a party who was interested in the purchase of. defendant’s property, and his failure to actually perform his final work of closing the sale is plainly attributable to the refusal of defendant to continue to deal with plaintiff’s agent and to defendant’s action in dealing with the purchaser directly.

The fact that the defendant reduced the price in order to effect the sale does not release defendant from his liability to pay plaintiff a commission on the sale price. Grace Realty Co. v. Peytavin Planting Co., Inc., et al., 156 La. 93, 100 So. 62, 43 A.L.R. 1096.

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