text:
    215 La. 94
    STATE v. HARRINGTON.
    No. 39230.
    Supreme Court of Louisiana.
    March 21, 1949.
    Cawthorn & Golsan, of Mansfield, and Cecil C. Cutrer, of Lake Charles, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., of Many, Jack L. Simms, Asst. Dist. Atty., of Leesville, R. C. Gamble, Sp. Counsel, of Mansfield, for appellee.
   HAWTHORNE, Justice.

It was charged in a bill of indictment that the defendant, E. R. Harrington, did on or about the 23rd day of June, 1948, willfully and unlawfully sell intoxicating liquor for beverage purposes in DeSoto Parish, where the sale of intoxicating liquor is prohibited by law. Defendant was placed on trial under this charge, adjudged guilty, and sentenced to pay a fine of $400 and costs and in default of payment of fine and costs to serve five months in the parish jail. From this conviction and sentence he has appealed to this court.

The trial judge in his per curiams informs us that the defendant, a physician, occupied a small office in Kolb’s Drug Store in the Town of Logansport in DeSoto Parish, which is “dry territory” by virtue of a local option election; that he had no surgical instruments or library, and that there was no evidence that he was practicing his profession other than that he was signing prescriptions for the sale of intoxicating liquors on printed forms for a fee of 10f! per prescription.

According to the per curiams, on the date charged in the indictment the defendant wrote prescriptions for whiskey for two deputy sheriffs at their request, and after writing the prescriptions he filled them himself, that .is, he actually made the sales and delivery to the deputy sheriffs from a stock of whiskey in the drug store.

During the trial in the lower court, the district:attorney propounded to the sheriff, a witness for the State, the following question : “Mr. Sheriff, as a result of a search warrant issued, did you or did you not seize the prescriptions and other equipment or paraphernalia from Kolb’s Drug Store in Logansport on or about the eleventh day of October of this year [1948]?”

Over objection the sheriff testified that he made such seizure, and identified a box as one seized in the store on that date, as well as various articles included therein. He had examined some 2,000 of these, and stated that they were prescriptions for whiskey, all written by Dr. Harrington during June, July, August, September, and October. For example, there were 411 prescriptions dated October 9, and 436 or 437 October 2.

The trial judge further informs us that none of these prescriptions was actually offered in evidence except the two written on June 23 for the deputy sheriffs, under which the whiskey was actually sold and delivered by the defendant.

Three bills of exception were reserved during the course of the trial, but in this court defendant relies for reversal of the conviction only on Bill of Exception No. 1. This bill was ■ taken to the overruling of defendant’s objection to the admission of the testimony of the sheriff, set out above. Counsel for defendant .objected to this testimony for the reason that it was remote, irrelevant, and immaterial; that it tended to show other sales of intoxicating liquors by the defendant, that such offerings by the State constituted an attempt to prove the commission of crimes other than that charged, and that none of such sales was shown or charged to be illegal.

Defendant in support of his objection relies on the general rule of law that evidence to prove an offense other than the one charged is inadmissible. He recognizes that one of the exceptions to this rule is that evidence is admissible of similar acts, independent of the act charged as the crime in the indictment, in order to show intent, but argues that this exception has no application to subsequent offenses, and cites decisions of this court in support thereof.

The testimony with reference to the prescriptions did not prove or establish a subsequent offense, for, as far as we have been able to ascertain, the mere act of writing a prescription in itself, not followed by a sale of intoxicating liquor, is not a violation of the law of this state. For this reason the rule of law and the authorities cited by defendant have no application. The only question remaining is whether the testimony was relevant and material to the issues in the case.

The sale of intoxicating liquors in dry territory on the prescription of a licensed physician as a medicine .is not a violation of law, and is a defense to a prosecution for a sale of intoxicating liquor for beverage purposes where such prescription and sale are made in good faith and in case of sickness. Where such defense is urged, it is for the court to decide whether the prescription and sale were made in good faith and in case of sickness, or as a mere subterfuge with intent to evade the provisions of the law. In the instant case defendant is urging such a defense, and the question of whether the prescription and sale were made in. good faith is a question of fact to be determined by the trial judge, and the testimony elicited from the sheriff was relevant and material to the issue of good faith and was properly admitted by the lower court as rebuttal to the defense urged.

The trial judge further states: “In view of the fact that the prescriptions were not filed [in evidence] and the Court did not consider them in this case and relied on other testimony of the actual sales on the date shown in the bill of indictment, there could be no objection to the evidence herein.” Since the court in adjudging the defendant guilty did not rely on the testimony of the sheriff with reference to the other prescriptions written by the defendant, even if we consider this testimony to be irrelevant and inadmissible, the defendant was not prejudiced by its admission and has no cause for complaint.

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

O’NIELL, C. J., 'takes no part


source: Caselaw Access Project

author: HAMITER, Justice.

license: Public Domain

text:
    215 La. 100
    STOVALL v. EMPIRE STATE INS. CO.
    No. 38624.
    Supreme Court of Louisiana.
    March 21, 1949.
    Wilson, Abramson & Maroun, of Sheve-port, for plaintiff-appellee.
    Morgan, Baker & Skeels, of Shreveport, for defendant-app.ellant.
   HAMITER, Justice.

For a cause of action herein plaintiff, Clifton S. Stovall, . alleged . that his one-story building, known as the North Hangar and situated at the Stoval Airport near Shreveport, was insured by the defendant, Empire State Insurance Company, and two other insurance companies for the total amount of $5000, each of whom became liable for, one-third thereof in case of loss, or destruction by fire; that he.erected it during the year 1943 at a total cost of $6000; that the building was completely destroyed by fire of unknown origin on March 4, 1946; and that defendant has refused .to' pay its proportionate part of the insurance notwithstanding proof of loss having been submitted and a period of more than 60 days thereafter having elapsed.

Plaintiff prayed for judgment against this defendant in the sum of $1666.66, with legal interest thereon from judicial demand, plus a 12% penalty and attorney’s fees of $750.

In its answer defendant admitted the issuance- of the policy alleged on, it being for a term of one year from April 5, 1945. Then it pleaded affirmatively that (1) plaintiff was without an insurable interest in the property insured and (2) the “policy was null and void from its inception due to the designed and intentional withholding of facts material to the risk which Clifton S. Stovall, in honesty and good faith, ought to have communicated to your respondent and that had respondent known of said facts the said policy would not have been issued.”

After trial there was judgment in favor of plaintiff for the sum demanded, together with legal interest thereon from judicial demand, plus a penalty of 12% and attorney’s fees of $300.

Defendant obtained and perfected a sus-pensive appeal, and in this court plaintiff answered it praying that the award of attorney’s fees be increased.

For a proper consideration of the several defenses pleaded and urged herein it is necessary to have in mind certain circumstances relating to plaintiff’s claim to ownership of the North Hangar, insured under defendant’s policy for one year from April S, 1945, and which was destroyed by fire on March 4, 1946. As disclosed by the record, George W. McMurray and the Howell Land & Improvement Company, as owners, leased in writing unto one Kirby S. Shaw on November 4, 1941, the land on which the building was later constructed. The lease was for a term of five years, and the instrument evidencing it recited, among other things, that the property was to be used exclusively for the construction and operation of an airfield or aviation school. Subsequently, there was written on the back of the instrument, in long hand, the following notation:

’“The lease on this document is herewith transferred to Stovall Field, Inc., releasing assignor of all liability. Shreveport, La. Apr. 18, 1942.
“Accepted: Stovall Field, Inc.
“By Clifton S. Stovall, Pres.
“Kirby S. Shaw.”

On that same date (April 18, 1942), articles of incorporation for Stovall Field, Inc., were signed, and two days later they were filed for record with the Clerk of Court of Caddo Parish. The incorpora-tors, with the shares of stock subscribed by each, were Clifton S. Stovall, 49 shares, Norman K. Michel, 50 shares, and Mrs. Lillian Stovall, 1 share.

During the latter part of 1942 and the early part of 1943 the North Hangar, insured under the policy in question, was erected.

Ralph Brandon, in May, 1943, acquired by purchase the land affected by the lease and on which the North Hangar was built, and he still owned it at the time of the institution of the instant suit.

On March 20, 1945, under an agreement in compromise of a claim against him, Clifton S. Stovall granted unto one M. C. Thompson a lease on the North Hangar, it to endure until November 4, 1946, the date stipulated for the expiration of the mentioned land lease.

Under the plea that Stovall was without any insurable interest in the destroyed building, defendant first takes the position that Stovall Field, Inc. (not Sto-vall individually) owned the lease, together with all improvements on the leased land, and in support thereof it directs attention to the chartering of that corporation and to Shaw’s assignment of the lease to it. The record conclusively shows, however, that Stovall Field, Inc., although duly chartered, did not function at all, carried on no business whatsoever, and its shares of stock were never issued to the subscribers. Furthermore, it appears that Stovall personally built the hangar at a cost to him in excess of $5000, that he did not transfer it to the corporation, and that he at all times was treated as the owner of the lease by those who dealt with him, including Brandon (the landowner) and the agent who solicited the insurance and wrote it in Stovall’s individual name.

Next, in further support of the plea of lack of insurable interest, defendant shows that on the occurrence of the fire Stovall was in arrears with his landlord respecting payment of rent and certain taxes, and it urges that by reason of the nonpayment of that indebtedness when due the building became the property of the lessor under the following provision of the lease:

“It Is • Understood that said property is to be used exclusively for the construction and operation of an airport or aviation school and it is contemplated that lessee will build on said premises such improvements and structures as may be deemed advisable for said purpose, and said buildings and improvements shall be and remain the property of lessee so long as there is no default hereunder * *

We do not construe the provision, relied on as effecting a transfer of ownership of the improvements immediately upon a failure to timely pay rent and taxes. It does not specifically so declare, and when read with other provisions of the lease clearly that effect was not so intended. Thus, the lease further recites:

“ * * * and lessee shall have the right upon termination of this lease, for a period of ninety (90) days, to go on said property and remove said improvements, provided all amounts due lessor hereunder have been fully paid, but if lessee fails or refuses to remove said improvements within said period, they shall become the property of lessor and lessee agrees upon removal of the improvements to level the property and place it in the same condition as when received.
* * * * * *
“That in case of default in any of the covenants herein, Lessor may enforce the performance of this lease in any modes provided by law, and this lease may be forfeited at Lessor’s discretion if such default continue for a period of ten days after Lessor notifies said Lessee of such default and his intention to declare the lease forfeited * *

Under these provisions Stovall would continue to be the owner of the improvements for a period of at least 90 days after the lease’s termination, whether the termination result from the expiration of its term or from a forfeiture based on a default and declared only after the stipulated notice to the lessee had been given.

In this connection it is appropriate to point out that on March 6, 1946, -or two days after the fire, the lessor demanded in writing from Stovall payment of rent and taxes, and further stated in the letter that unless the sum due “is paid within ten days from the date on which you receive this letter, I shall declare the aforesaid lease forfeited in accordance with the right so to do given the lessor in the said lease.” This, unquestionably i was a recognition on the part of the lessor that the lease previously had not been terminated.

The fact that one M. C. Thompson was using the North Hangar at the time of the fire in no manner affected the insurable interest of Stovall. The latter was still the recognized owner thereof, and the former, under a lease arrangement supported by a valid consideration, merely occupied the building as a tenant.

The defense that Stovall intentionally and designedly withheld material facts from the agent who wrote the insurance, thereby rendering the policy null and void from its inception, is likewise without merit. Counsel for defendant, to quote from their brief, argue:

“When all of the facts and circumstances are considered, in connection with the risk at the time of the issuance of the policy and when it is considered that none of these facts were disclosed to the agent of the company, it is submitted that the insured in this case was guilty of fraud. He did not advise the agent that the building was on leased property; he did not reveal to the agent that he had granted the free use of the building to Thompson in settlement of a law suit; he did not reveal to the agent that the rent had not been paid and that he was having trouble with his landlord. All of these facts were material to the risk and were very important. No disclosure whatever was made to the agent in this case.”

Perhaps the agent did not have some of these facts when the policy was written, but it does not appear that Stovall fraudulently withheld or prevented his obtaining them. The agent, according to his own testimony, solicited the insurance from Stovall, knowing at the time that Brandon owned the land. With this knowledge he could have -acquired the mentioned information very easily if it were material. Besides, the agent, só he testified, learned of the dispute over rental payments between Brandon and Stovall in October, 1945, long prior to the occurrence of the fire, at which timé the insurance might have been cancelled if defendant had desired.

Also urged'here, but not pleaded in the answer, is the alternative defense that the destroyed building was worth much less than the amount for which it was insured. This defense is not supported by the record. As we appreciate the evidence the North'Hangar, as it stood immediately before its destruction, had a value of at least $5000, the amount of the total insurance. It is argued by defense counsel, however, that since Stovall, under his agreement with the lessor, would have to remove the structure at the- termination of the lease and this by means of dismantling because of the type of its construction, the 'building must be valued as if in a demolished condition. We seriously doubt that such a test is appropriate in determining the value; it is grounded on conjecture. There is-no conclusive showing that some satisfactory disposition of the standing building could not and would not have been made by Stovall at the lease’s termination had there been no fire.

This leaves for consideration only the question of attorney’s fees, appellee having requested in his answer to the appeal that the award of $300 be increased. We shall not disturb the award. In view of' the amount of plaintiff’s claim herein and the fact that the judgment also imposes a statutory penalty -on defendant, it seems adequate.

For the reasons assigned the judgment is affirmed.

O’NIELL, C. J., takes no part.


author: O’NIELL, Chief Justice.

text:
    215 La. 109
    NASH v. CURETTE et al.
    No. 39313.
    Supreme Court of Louisiana.
    March 21, 1949.

      Vincent Moseley, of Opelousas, for appellant.
    Seth Lewis, of Opelousas, for appellees.
   O’NIELL, Chief Justice.

The plaintiff is appealing from a judgment dismissing his suit after trial of the case on its merits. The defendants have moved to dismiss -the appeal, urging five grounds, namely: (1) That in the motion for the -appeal the appellant asked to have the appeal made returnable to the court of appeal, and that in the order granting the appeal the judge made the appeal returnable accordingly, and that the clerk of the district court without -authority from -the judge afterwards changed the order 'by striking out the words “court of appeal for the Parish of St. Landry, Louisiana”, and substituting therefor the words “Hon. Supreme Court of the State of Louisiana”; (2) That the motion for the appeal was made, not in open court, but at chambers and that the order of appeal was granted at chambers and that the appellant did not ask for a citation and neither of the ap-pellees was cited or waived citation to answer the appeal; (3) That the value or amount in contest is not sufficient to bring the case within the appellate jurisdiction of the supreme court; (4) That the appeal bond was not properly • signed; an'd (5) That the amount of the bond was not fixed in the order granting the" appeal nor is it fixed bj- law.

The defendants, appellees, have -attached to their motion to dismiss the appeal a photostatic copy of the original typewritten motion and order of appeal, which photostatic copy is certified by. the clerk and shows that the motion and order of appeal originally made the appeal returnable to the court of appeal, and that after the order was signed by the judge the clerk of the district court changed the order so as to make the appeal returnable to the supreme court instead of the court of appeal. The clerk of the district court furnished to the appellees in this case -a certificate which they have attached to their motion to dismiss the appeal, in which certificate the clerk certifies that he made the corrections in the o-rder of appeal at the request of the attorneys for the- appellant.

As far as the first ground on which the appellees move to dismiss the appeal is concerned, it will be necessary to remand the case to the district court to receive evidence to allow the appellant to correct his error. Our main reason for giving the appellant this opportunity . to correct the error made in naming the court to which the appeal has been made returnable, is that the appeal is only a devolutive appeal, after all; and the taking of -the appeal is well within the year allowed for a devolutive appeal- When the plaintiff in a case appeals- from a final judgment dismissing a suit in which he has not been granted any relief, the appeal is not -a sus-pensive appeal because there is no execution for the appeal to suspend. In such case the appeal is only a devolutive appeal, no matter what the appellant sees fit to call it. See Thompson v. Jones, 200 La. 437, 8 So.2d 286.

Adverting now to the second ground for the motion to dismiss, the clerk of court furnished the appellees a certificate saying that the motion and order for the appeal were granted at chambers, but he after-wards furnished the appellant an affidavit declaring that his reason for having certified to the appellees that the motion and order of appeal were made at chambers was that he had not found a minute entry of either the motion or the order of appeal. iT'he clerk further declared in his affidavit that the motion for the appeal was a written motion and that it was not the custom in his court to make a minute entry when the motion and order of appeal were made in writing. The clerk therefore declared, finally, in his affidavit that from his subsequent investigation he found that he was not justified in certifying that the motion and order of appeal were made at chambers, or not in open court.

Inasmuch as the case will have to be remanded to the district court for proof of the facts and circumstances concerning the taking of this appeal, the appellant will have an opportunity to show whether the appellees were entitled to have service made of a citation of appeal.

Referring now to the appellees’ motion to dismiss the appeal for want of appellate jurisdiction, we would be obliged not to dismiss the appeal for that cause; but to transfer the case to the court of appeal if the cause were well founded. So far as the allegations of the plaintiff’s petition go, the amount in contest appears to be far above the minimum amount of our appellate jurisdiction. If, after hearing the case on its merits, we have a doubt as to whether the amount in dispute is exaggerated, we will decide then whether the case should be transferred to the court of appeal or should be decided finally by this court. Meanwhile the case will be remanded to the district court to determine which court will have appellate jurisdiction.

There is no merit in the appellees’ complaint that the appeal bond was not properly signed. It was signed by the plaintiff as principal and by his attorney as surety.

As we stated at the outset, the fifth and last complaint in the motion to dismiss the appeal is that the amount of the bond is not fixed in the order of the judge granting the appeal and is not determined by any statute or formula prescribed by law. As we pointed out in our discussion of the first ground urged for dismissing the appeal, this is only a devolutive appeal and according to the provisions of article 578, of the Code of Practice, the trial judge should have fixed the appeal bond at an estimate of the costs of court. But the amount of the appeal bond furnished by the appellant which is above any possible estimate of the costs of court is $4,474.31. This case is therefore controlled by the decision rendered in Redon v. Armstrong, 211 La. 165, 29 So.2d 708. In that case the appellant furnished an appeal bond in the amount of $5,000, in accordance with the order granting the suspensive appeal. The appellee questioned the solvency of the surety and the trial judge found the surety to be solvent only to the extent of $2,000. No additional security was furnished and the appellee moved to dismiss the appeal The court held that the appellant was not entitled to a suspensive appeal, but sustained the appeal as a devolutive appeal because the surety furnished was obviously sufficient to secure the payment of all of the costs of court.

Since this opinion was written, or just at this stage of it, the appellant has filed in this court a motion labeled “A Motion to Remand Transcript for Completion.” In view of the disposition which we have made of the motion to dismiss the appeal, we do not find it necessary to take further action upon the so-called motion to remand the transcript for completion.

The case is ordered remanded to the district court for further proceedings consistent with the views expressed in this opinion.


author: McCALEB, Justice.'

text:
    215 La. 117
    LINGLE v. WAINWRIGHT.
    No. 38815.
    Supreme Court of Louisiana.
    March 21, 1949.
    Sidney G. Roos, of New Orleans, for defendant-appellant.
    Claude W. Duke and Leon F. Davison, both of New Orleans, for plaintiff-ap-pellee.
   McCALEB, Justice.'

Plaintiff, as owner of the premises 'No. 1225-27 St. Charles Avenue in the city of New Orleans, seeks the eviction of the defendant, who claims possession under a recorded lease from plaintiff’s predecessor in title. Plaintiff, while admitting the lease, avers that it" expired on May 15, 1946r and that, since that time, ' defendant has. been occupying the premises on a month to month basis.

Defendant contends that the lease has been renewed for four years by his timely exercise of an option contained in the contract and further maintains, in the alternative, that plaintiff’s conduct in relation to the renewal has estopped him from claiming a forfeiture.

Plaintiff prevailed in the lower court and defendant has appealed.

The facts of the case, so far as necessary for our consideration, are not disputed. On May 15, 1945, plaintiff’s predecessor leased the premises to defendant by written contract for a primary term of one year at a monthly rental of $250. There were two separate provisions in the lease concerning a renewal. The first one appears in the printed portion thereof, and reads:

“The Lessee agrees to notify the Lessor or His Agent in writing on or before the first day of March 1946 whether or not he wishes to retain the premises for one or more years from the expiration of this Lease. "The Lessor reserves the privilege to reject all offers to renew Lease.”

The other provision, which is typewritten, is found in the concluding portion of the lease. It declares:

“Lessee is to have an option to release the said property for a term in addition to this lease for Four Years at the expiration of this lease, with all conditions as herein stated, EXCEPT, the monthly rental shall be the sum of Six Hundred and Fifty ($650.00) Dollars per Month.”

Preliminarily, defendant maintains that the above quoted renewal stipulations are discordant and, this being so, the second typewritten provision prevails over the printed matter under familiar rules of interpretation.

This contention is not well founded. An examination of the clauses will readily reveal.that the only portion in the first provision in conflict with the second is the last sentence, pertaining- to lessor’s right to reject all offers to renew the lease. In all other respects, the stipulations can stand together and, when thus united, they effectively declare that lessee has the privilege of renewal for four additional years under the same conditions, except as to the increased monthly rental, provided he notifies the lessor in writing on or before March 1, 1946.

The evidence is in conflict as to whether notice of renewal was given prior to March 1, 1946, and the District Judge resolved this question in plaintiff’s favor. Be this as it may, defendant wrote to plaintiff on April 22, 1946, as follows:

“I was granted an option to renew my lease of the property 1225-27 St. Charles Avenue, consisting of the Audubon Hotel, for four years additionally, under all the terms and conditions of the lease, under date May 15, 1945, which was registered C.O.B. 539, folio 153.
“This will advise you that I accept the option and I desire to renew my lease with you accordingly, for four years additionally, at its expiration, under all the terms and conditions as stated in the lease, except that the monthly rental shall be $650.-00 per month.
“Rent will be sent you when due at the customary place and in the customary manner unless you advise method and place which may be more convenient for you.”

It is conceded by plaintiff that this notice was duly received. He did not protest or inform defendant that the renewal would not be granted because the notice had not been given on or before March 1st 1946. Instead, he remained silent and, thereafter from May 15, 1946 through March 1947, accepted from defendant the increased rental of $650 per month provided for in the renewal clause of the lease'. Albeit, it was nearly a year later (March 28, 1947) that plaintiff made his initial complaint in the form of a ten day notice for defendant to vacate the premises.

We think it clear that the actions of plaintiff constitute a waiver of his right to insist that notice of renewal be given on or before March 1, 1946. While it is generally held that an option to renew a lease, provided notice is given at or before a specified time of the intention to exercise the privilege, is a condition precedent which must be complied with within the stipulated time (see Annotation, 27 A. L.R. 981 and cases there cited), it is equally well settled that such a provision is for the benefit of the lessor “and therefore the notice itself, or any other matter going to the sufficiency thereof, may be waived.” 51 C.J.S,, Landlord & Tenant, § 62, page 611, citing Polizzotto v. D’Agostino, 170 La. 932, 129 So. 534, 536, where the court said:

“And, further, that, having accepted and acted on said notice as being sufficient, the defendant thereafter cannot be heard to raise the question of the technical informality of the notice, or complete want of notice.”

- See also 32 American Jurisprudence, Sec. 980, page 823.

In arguing that a waiver has not occurred, counsel for plaintiff rely on Le Blanc v. Barielle, La.App., 25 So.2d 638, and Standard Oil Co. of New Jersey v. Edwards, La.App., 32 So.2d 102, certiorari denied by this court on February 16th 1948.

The cited cases are not appropriate. They merely hold that, in the absence of lessee’s exercise of an option to renew prior to the expiration of the primary term of the lease, a reconduction on a month to month basis occurs, despite Article 1817 of Civil Code, which declares that silence and inaction are, under certain circumstances, the means of showing an assent that creates an obligation. In the instant case, the option to renew was exercised prior to the expiration of the lease and the plaintiff accepted the increased rent under the terms of the new lease.

The judgment appealed from is reversed and plaintiff’s suit is dismissed at his cost.

O’NIELL, 'C. J., takes no part


text:
    215 La. 123
    STATE v. DE LAVALLADE et al.
    No. 38575.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Bolivar E. Kemp, Jr., Atty. G^n., Carroll Buck, Asst. Atty. Gen., M. E. Culligan, Asst. Gen. and William A. Porteous, Jr., Second Asst. Atty. Gen., for appellant.
    John H. McSween and Isaac Wahlder, both of Alexandria, for defehdants-appel-lees.
   O’NIELL, Chief Justice.

John B. Lafargue died intestate on May 27, 1943. His succession was opened a few days later and in due course of administration all of the property of .the estate, with the exception of some household furniture appraised at $200, and a city lot in Alexandria appraised at $7,000, was reduced to cash. After deduction of all debts and charges a balance of $1,095.27 was distributed among six persons claiming to be the heirs at law, namely, Emma DeLavallade, Modjeska Hithe, Leon Beize, Percy Castrón, Velanise Mary Metoyer and Jules Joseph Castrón, Jr. They presented a petition to the court on September 15, 1943, alleging that they, Emma DeLaval-lade, Modjeska Hithe, Leon Beize and Jules Castrón, Sr., deceased, represented by his three children, Jules Joseph Castrón, Jr., Percy Castrón and Velanise Mary Metoyer, were the natural brothers and sisters of the decedent and were his only heirs. They alleged that the succession had been Completely administered, and they prayed that they should be recognized as the legal heirs of the decedent and be sent into possession of his estate unconditionally as owners. They prayed further that the administratrices, Emma DeLaval-iade and Modjeska Hithe, should be discharged and their bond cancelled. An ex parte judgment was rendered accordingly on that day.

On August 22, 1946, the State of Louisiana instituted this suit against the parties claiming to be the heirs of John B. La-fargue, to have the judgment recognizing them as his heirs and sending them into possession of his estate annulled. The state prayed also for a judgment in solido against the administratrices and the surety on their bond, the Fidelity and Deposit Company of Maryland, for the $1,095.27, which had been distributed among the parties claiming to be the heirs of La-fargue in.the succession proceedings. The surety was cited as a defendant. The state alleged that Lafargue was the child of an illicit union between a negro woman and a white man and was conceived and born at a time when intermarriage between the races was prohibited by law. The state alleged also that Lafargue was never legally acknowledged and in fact was legally incapable of being acknowledged, and that the defendants, who had themselves formally recognized as the heirs of Lafargue had perpetrated a fraud upon the court by representing that they were the natural brothers and sisters of La-fargue, or were their representatives, when they well knew the facts and circumstances concerning Lafargue’s parents. The State averred therefore that the succession was a vacant succession and hence that the property had escheated to the State.

The defendants filed an exception of no cause or right of action, a plea of estoppel, and a plea of prescription of one year. The Fidelity and Deposit Company of Maryland filed also a plea of prescription of two years. The -exceptions and pleas were by consent tried together, on January 11, 1947. The judge maintained the exception of no cause or right of action and therefore found it unnecessary to rule on the other exceptions. The state is appealing from the decision.

The exceptions were tried on a stipulation of facts, as follows: John B. La-fargue’s mother, Mary Lafargue, was a negress and was unmarried when he was conceived and born. His father was an unmarried white man. Lafargue was born in 1864. lie was baptized in that year in a Roman Catholic church at Mansura, Louisiana, as the child of Mary Lafargue. His father’s name is not given in the baptismal certificate.

Whether the petition does or does not state a cause and right of action depends primarily upon the question whether John B. Lafargue could have been acknowledged legally between 1864, the time of his birth, and 1870, or the time when the Revised Civil Code was adopted with its prohibition against acknowledgment of an illegitimate child by parents who were incapable of intermarriage when the child was conceived. The defendants contend that he was a natural, or legally acknowledged child, and that they are therefore his heirs under the provisions of article 923 of the revision of the Civil Code of 1870. The state contends that since the capacity of an heir is determined as of the time when the succession is opened, and since under the law as it existed then John B. Lafargue could not be legally acknowledged he could not be, in law, a natural child,, or one from whom his illegitimate brothers- and sisters could inherit. The objection t-o that argument is that it gives to article 204 of the Civil Code of 1870, a retroactive effect; that is, the effect of bastardizing a child who had been validly acknowledged before article 204 was adopted. It is declared in article 8 of the Civil Code that the laws should not be given a retroactive effect. That policy of the law could not be more timely invoked than in a case where, as here, to hold otherwise would' result in bastardizing a child after he or she has been raised to the status of a natural child by being duly acknowledged. It is therefore our opinion that, if John B.. Lafargue was validly acknowledged prior to the adoption of article 204 of the Civil Code of 1870, he was a natural child, within the meaning of article 923 of the Civil. Code.

It is argued for the state that even under the provisions of the Code of 1825 John> B. Lafargue was incapable of being acknowledged legally. Our jurisprudence is-the other way. Lange v. Richoux, 6 La. 560; Compton v. Prescott, 12 Rob. 56; Casanave v. Bingamen, 21 La.Ann. 435; Succession of Hebert, 33 La.Ann. 1099. It is true that when John B. Lafargue was conceived, his parents could not have contracted marriage legally because of article 95 of the Civil Code of 1825. But article 222 of the Civil Code of 1825 did not prohibit the acknowledgment of an illegitimate child by parents who were incapable of intermarriage when the child was conceived, as does article 204, the corresponding article of the revision of the Code of 1870. Article 222 of the Civil Code of 1825 prohibited acknowledgment only in cases of adulterous or incestuous connections.

The state relies upon certain expressions in Succession of Gravier, 125 La. 733, 51 So. 704, which suggest that the Compton Case was decided erroneously because the court overlooked Act No. 37 of 1831. What the court overlooked in the Succession of Gravier was th.e distinction between legitimation and acknowledgment. Act No. 37 of 1831 refers only to legitimation, not acknowledgment.

The state also relies upon article 914 of the Code of 1825, which is article 920 in the Code of 1870. The article declares:

“Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned, the law allowing them nothing more than a mere alimony.”

Apparently the reasoning is that in distinguishing between bastard children on the one hand, and adulterous or incestuous children on the other hand, the article assumes that there is a disability which arises from some other cause than the fact that the child was conceived of an adulterous or incestuous connection. But we must observe that the English text of the article is not an exact translation of the French, which controls the Code of 1825. Without speculating upon the support which th.e state might have derived from the article if it had been translated accurately, it is sufficient to say that the French text, “Les batards adulterins ou incestueux ne jouis-sent pas du droit” etc., should be translated thus: “Adulterous or incestuous bastards shall not enjoy the right” etc.

There is no doubt that John B, Lafargue was acknowledged by his mother, generally though informally, to be her son. The stipulation on which this case was submitted, contained a baptismal certificate stating that John B. Lafargue was the son of Mary Lafargue. That, however, is not conclusive proof, for there is no proof that Mary Lafargue was a party to the baptis-ing or was even aware of the contents of the baptismal certificate. But in the stipulation of facts there is incorporated the record of the succession proceedings, as evidence for the trial of the exceptions. And in that record are the affidavits of four individuals swearing that Mary La-fargue always treated John B. Lafargue as her son, and that he was generally known to be her son. The question which would be most serious if it were now a new one is the one which is presented by the State’s contention that an informal acknowledgment by the mother of a bastard as her child is not sufficient to elevate the child to the status of a natural child, in the light of articles 202 and 203 of the Civil Code. But the question is not a new one. It was decided, after a very thorough consideration and discussion of the subject, in Taylor v. Allen, 151 La. 82, 91 So. 635, that such an informal acknowledgment by the mother of a bastard child was sufficient to lift the status of the child to that of á natural child, provided of course the child was neither an incestuous nor an adulterous child. The writer of this opinion in the instant case handed down a dissenting opinion in Taylor v. Allen, but the prevailing opinion in that case has been cited with approval at least twice by this court. See Murdock v. Potter, 155 La. 145, 99 So. 18; Succession of Tyson, 186 La. 516, 172 So. 772. We have concluded therefore that these decisions should be considered as having settled the question finally.

The judgment is affirmed.

PONDER, J., does not take part.


text:
    215 La. 132
    WILLIAMS v. ROBINSON.
    No. 38940.
    Supreme Court of Louisiana.
    March 21, 1949.
    James W. Hopkins, of New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie, of New Orleans, for defendant-appellee.
   HAMITER, Justice.

Plaintiff, Granville H. Williams, sued to recover the sum of $71,273.50, allegedly due him for conducting under contract logging and hauling operations respecting timber owned by defendant, Robert G. Robinson, in Nicaragua. Answering, defendant recognized the claim to the extent of $39,373.90, pleaded that the obligation had been compensated as a result of advances made by him to plaintiff, and in re-convention he demanded judgment for excess advances totaling $3264.81.

After the joining of issue the case was referred, under the provisions of Act No. 119 of 1934, to the Commissioner of the Civil District Court for the Parish of Orleans (then Honorable Luther E. Hall) before whom a protracted trial was held. In a lengthy written report that official recomended that there be judgment in favor of plaintiff in the sum of $30.59, together with legal interest and costs. The recommendation was based on a finding that plaintiff is entitled to credits totaling $39,993.90, but that he should be charged with $39,963.31, which is due and owing to defendant.

Exceptions to the report were filed by plaintiff. The district court, however, overruled these exceptions and rendered judgment in accordance with the recommendation. From the judgment plaintiff appealed. Defendant neither appealed nor answered plaintiff’s appeal.

The record discloses that in 1939 the defendant owned the pine timber on approximately 13,832 acres of land in the Republic of Nicaragua, and was desirous of converting it into salable lumber. To this end he arranged with one Frank E. Nolen for the establishing and operating there of a saw mill to manufacture the lumber, and contracted also with this plaintiff for conducting the necessary logging and hauling operations. The agreement with Nolen was wholly verbal; that with plaintiff was partly in writing and partly verbal.

Under the terms of a written contract dated April 20, 1939, plaintiff agreed to place at the logging site certain described trucks, tractors and other equipment and to deliver to the saw mill not less than one million feet of logs per month. For cutting and hauling the timber he would receive $10 per thousand feet.

Other pertinent provisions of the written contract between plaintiff (party of the first part) and defendant (party of the second part) were the following:

“It is mutually agreed and understood that party of the second part will pay the freight charges and passenger fares for returning the equipment and employees of party of the first part in case that for any reason the party of the second part should decide to discontinue the operation of the sawmill in Nicaragua. * * *
“It is understood that this logging contract will cover only such sizes of timber as are suitable for cutting into 30 cubic average sawn timbers, or into 9 x 9 30 lineal average and better, or into 6 x 6 30 lineal average or better, the latter two sizes are to be cut at the option of the party of the second part.
“In order for the party of the first part to clear up all indebtedness on his equipment and place i‘t in first class repair, and in order that he should buy approximately $1000.00 worth of spare parts to carry with him to Nicaragua, the party of the second part agrees to furnish party of the first part with funds necessary to- defray these expenses in an amount not exceeding $3000.-00, said money to be furnished to party of the first part 'when and as needed. Party of the second part also agrees to advance to party of the first part all freight charges on his equipment from New Orleans to Nicaragua, and consular and duties, i'f any, and passenger fares for his employees, said advances to be made as needed. Party of the first part agrees to repay party of the second part for such monies so advanced at the rate of $2.00 per thousand on quantity cut each day of settlement until the full amount so advanced has been completely liquidated.
“Party of the second part agrees to furnish to party of the first part all truck and tractor parts, gasoline, oil, and other supplies that party of the first .part might decide to order through party of the second part at cost and without profit.”

After the confection of this written contract, the record discloses,' it became apparent that defendant would have to finance both Nolen and plaintiff in the conducting of their respective operations in Nicaragua. Accordingly, the three agreed verbally that defendant would send supplies and funds to Nolen who in turn would furnish plaintiff, at his request, those needed by him.

The logging and hauling operations began in May, 1939, and were discontinued about April IS, 1940, at which time all of the 30 cubic average timber had been cut. During . that period plaintiff logged and hauled under the contract 3,937,390 feet of timber for which, at $10 per thousand feet, admittedly he was entitled to receive $39,-373.90.

As stated in the brief of his counsel, plaintiff has acquiesced in the Commissioner’s disallowance (maintained by the district court) of many of the items of the claim alleged on in his action. He urges here, however, that he should recover, under the written contract, return fares for his employees in the sum of $500 and return freight on his equipment of $2051.87. Further, plaintiff contends that charges claimed by defendant against him totaling $22,435.36 (referred to hereafter’ as the Nicaraguan account) should have been disallowed on two grounds: (1) These charges were not itemized in defendant’s answer and reconventional demand, and defendant did not allege with any definiteness his purported arrangement with No7 len; and (2) any indebtedness of plaintiff for these charges was to Nolen and not to defendant.

That part of plaintiff’s claim covering return fares for his employees and return freight on the equipment is grounded on a provision of the written contract stipulating for payment thereof by defendant “in case that for any reason the party of the second part should decide to discontinue the operation of the saw mill in Nicaragua.” Respecting these items the Commissioner, in his report, observed:

“I find that the operation of the sawmill was discontinued by the defendant, Robinson, on or about April IS, 1940.' All witnesses agree that by this time all of the 30 cubic average timber had been cut although there were 4 or S million feet of smaller size timbers left on the tract. I find it undisputed that Robinson discontinued operation of the sawmill for the reason that there were no more 30 cubic average timbers left to cut and that he did not desire the smaller sizes to be logged.
“It will be remembered that the contract provided ‘that this logging contract will cover only such sizes of timber as are suitable for cutting into 30 cubic average sawn timbers, or into 9 x 9 30 lineal average or better, or into 6 x 6 30 lineal average or better, the latter two sizes are to be cut at the option of (Robinson)’.
“Plaintiff does not challenge defendant’s right to discontinue the sawmill. What he asks is payment for the return freight and passenger fares under the first quoted paragraph of the contract.
“It is clear to me that this paragraph has reference only to a discontinuance of the operation of the sawmill for any reason prior to the completion of the contract. It has, in my opinion, no relevancy to a discontinuance of the sawmill’s operation upon completion of the contract.
“The contract here was completed and terminated when all the 30 cubic average timbers had been cut and upon Robinson’s exercising his option not to cut the smaller sizes.
“I am therefore of the opinion that plaintiff’s claim for return passenger fares and return freight should be disallowed.”

We find no error in the Commissioner’s finding, reasoning and conclusion. Counsel for plaintiff concedes that defendant’s obligation with reference to the size of timber to be logged was wholly fulfilled. This being true, obviously, there was no discontinuance of the operation of the saw mill within the contemplation and in-tendment of the written contract.

In pleading compensation and in urging his reconventional demand respecting the Nicaraguan account defendant was required, as plaintiff’s counsel insists, to itemize the charges claimed and to allege with definiteness the basis therefor. But he, in our opinion, has sufficiently complied with this requisite. Attached to his answer is a statement of the account which covers five full pages. In most instances the items are listed in detail; in the others the charges are described in a manner permitting identification by plaintiff. And in the answer defendant sets forth satisfactorily the arrangement by which plaintiff received advances from defendant through Nolen.

The correctness of the amount of the Nicaraguan account, it will be noticed, is not challenged. Plaintiff’s position is that he owes the indebtedness to Nolen, not to defendant. Thus, his counsel, to quote from his brief, states: “It is to be understood that subject to objection of inadmissibility, plaintiff acquiesces in the Commissioner’s holding as to plaintiff owing for items on the Nicaraguan account. But to whom? Plaintiff’s complaint is mainly that the Commissioner found plaintiff indebted therefor to- defendant when the evidence is conclusive that this indebtedness was to Nolen and not to defendant. Naturally, plaintiff strenuously protests against double liability and having to pay defendant after Nolen’s claim and proceeding against plaintiff.”

The basis for this position, as the reference made to “Nolen’s claim and proceeding against plaintiff” indicates, seems to be a seizure in Nicaragua at the instance of Nolen of some of plaintiff’s equipment. The circumstances surrounding this seizure, as well as the exact, indebtedness for payment of which it issued, áre not clearly shown by the record. It does appear that Nolen personally claims from plaintiff some amount in the neighborhood of $3200. With reference to this claim, however, Nolen testified: “Q. Mr. Nolen, Mr. Williams has stated that there are a number of these items, that.he admits are due, but doesn’t know whether they are due to Mr. Robinson or you, and he does not want to be in position of paying those items twice. What do you say to that ? A. He will not have to pay any item twice. ' The only thing I am looking for is any amount over what Mr. Robinson is to pay him — any amount over that. That’s the only thing.”

And, during the course of the trial, defense counsel stated: “Well, we are willing to forego the reconventional demand. We are perfectly willing not to ask for any judgment in reconvention. All we want is to offset to the extent of plaintiff’s claim monies advanced by Robinson.”

The quoted testimony and statement, which in effect are waivers on the parts of Nolen and defendant respectively, should provide protection for plaintiff to the extent of the charges pléaded in compensation by defendant.

But irrespective of the waivers, it can only be concluded from the evidence that the discussed Nicaraguan account was plaintiff’s indebtedness to defendant, not to Nolen. Defendant, the evidence discloses, financed both plaintiff and Nolen; and No-len, in delivering the supplies and funds to plaintiff, served as defendant’s agent. Each month Nolen prepared three copies of a detailed statement showing what plaintiff had received during the preceding month. Two copies went to plaintiff’s representative in Nicaragua who in turn forwarded one to plaintiff in New Orleans; the third was sent to defendant. The latter, on receipt of each statement, entered the charges on his books at his New Orleans office. Almost weekly during the operations plaintiff went to that office and checked the entered charges, and at no time did he claim that they were due and owing to Nolen. Plaintiffs own testimony indicates, in fact, that throughout such period he understood that his indebtedness was with defendant; he disputed defendant’s right to set off the charges against his claim only after Nolen subsequently had resorted to the seizure of his equipment.

For the reasons assigned the judgment is affirmed.

O’NIELL, C. J., takes no part.

MOISE, J., recused.


author: REGAN, Judge.

text:
    KARNO’S v. SCHNEIDER.
    No. 19234.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    Herman L. Midlo, of New Orleans, for appellant.

      Beryl E. Wolfson, of N.ew Orleans, for appellee.
   REGAN, Judge.

Karno’s, the plaintiff herein, filed suit against defendant, Morris Schneider, for $169.94, which plaintiff alleges is due by virtue of the fact that the commissions earned by defendant were less than the amount advanced to him by plaintiff through the medium of a “drawing account”.

.The defendant admits that he was advanced, or drew from his “drawing account ”, $169.94 in excess of the commissions which he earned while employed by plaintiff, but maintains that he is not a debtor to his employer for the deficiency of his commissions, and the “drawing account” is only to be offset against commissions actually earned by him.

From a judgment in favor of defendant dismissing plaintiff’s suit, plaintiff prosecutes this appeal.

The record reflects that the defendant was employed by the plaintiff, as a salesman, in the year of 1944, at which time he was given a “drawing account” of $216.70 per month, payable semi-monthly, which sum was to be charged against and deducted from defendant’s .commissions, which ranged from four to six per cent, on the cash and credit sales which he actually consummated. A balance was struck semi-monthly indicating whether the defendant had drawn more than he had earned in commissions. If his account was debited, it was carried over to the succeeding month, in anticipation that excess earned commissions would eventually balance the account. Defendant voluntarily terminated his employment on September 15th, 1948, and admits that advances from his drawing account exceeded his earned commissions by the sum of $169.94. The record is devoid of any express agreement by the employee to repay the excess of advances received from the drawing account over earned commissions.

A fortiori, there is posed only the question of whether the nature of the employment can be construed as raising an implied promise on the part of the employee to the employer for the repayment of moneys drawn in excess of commissions earned.

We think not. The reason in support of the law applicable to the determination of the issue herein involved is set forth with clarity in American Furniture Company, Inc., v. Snell et al., La.App., 164 So. 478. In this case the contract of the salesman employed on a commission basis provided that sums advanced by employer could be deducted from whatever amount might be due the employee, and that if the deduction exceeded the amount due the employee, the employee would then execute a note for the unpaid portion thereof. The Court was of the opinion that the employer could not recover from the deceased salesman’s widow advances in excess of earned commissions at time of salesman’s death. See also Southern Molasses Company, Inc., v. Boutcher, 172 La., 691, 135 So. 27; Lawton v. Scott, La.App., 29 So.2d 614.

Counsel for plaintiff maintains that the Snell case is distinguished from the case which we are presently considering, in that the salesman in the Snell case died while in the employ of the employer, thus an Act of God intervened and made it impossible for him to liquidate .his account, while in this case the employee voluntarily left the employ of Karno’s and, therefore, he alone was responsible for the resulting debit in his account. We are not impressed by this rationalization. It is a distinction without a difference created in the ultimate result.

In our opinion the rule is concisely written in 57 A.L.R. 33, in the following language :—

“The rule to be deduced from the authorities is that where the contract of employment provides for advances to the employee, which are to be charged to and deducted from the commissions agreed by the employer to be paid to the employee, as the same may accrue, the employer cannot, in the absence of either an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.


author: McBRIDE, Judge.

text:
    WALTER E. CANULETTE & SON v. CLESI.
    No. 19223.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    Weiss & Weiss, of New Orleans (Harold Marx, Jr., of New Orleans, of counsel),'for plaintiff-appellant.
    Peter J. Compagno and Guy L. Deano, Jr., both of New Orleans, for defendant-appellee.
   McBRIDE, Judge.

Walter E. Canulette, the owner of a shipyard located on the New Ba.sin Canal in New Orleans, which he conducts under the name of “Walter E. Canulette & Son,” alleges that he made certain repairs to the motor-powered boat Ora owned by defendant, amounting to $159.32, which the defendant has failed to pay, notwithstanding amicable demand.

. The defense is that whatever work was dpne by plaintiff was defectively performed and was so worthless that defendant received no benefit.whatever therefrom. Defendant also claims in reconvention the sum of $160.00, representing $75.00 which he alleges he paid to a mechanic for repairing the boat’s motor, and $85.00 which he paid for recaulking and painting the hull.

The court below dismissed both the main and reconventional demands as of nonsuit, and plaintiff alone appealed from the judgment. Defendant answered the appeal praying that he' be allowed to recover on the reconventional demand.

Plaintiff contends that the demand in re-convention is not before us, for the reason that defendant did not appeal from that part of the judgment which dismissed the demand. In other words, it is plaintiff’s contention that the answer to the appeal does not suffice to bring before us the re-conventional demand for review.

There is no merit to this contention. It is now thoroughly settled that an answer to the appeal is sufficient to bring up for review a reconventional demand which was dismissed; it is not necessary that the re-convenor take an appeal from the judgment. Alengi v. Hartford Accident & Indemnity Co., 183 La. 847, 165 So. 8; City of Shreveport v. Kahn, 194 La. 55, 69, 193 So. 461.

About February, 1946, Clesi brought the boat, which was in a leaky condition, under its own power to plaintiff’s shipyard. He testified that plaintiff and plaintiffs son were present, and that the latter showed him where to moor it. This is denied by Canulette, who claims the boat was brought in during the night when no one representing the shipyard was there to receive it, and that his first knowledge of its presence was- when he found it the next morning half full of water.

Plaintiff stated that after piilling the boat out of the water and placing it on the ways, he informed Clesi that there was water in the base of the motor, and that the boat and its motor were in bad condition. There is no dispute that Clesi did not want the motor repaired and that Canu-lette did no work on it. The record reveals that Clesi planned to take the boat to Delacroix Island to be used for a short time in trawling, and that he only wanted all leaks caulked.

Plaintiff claims that -his workmen put four new planks in the bottom, caulked this new work, checked all leaks found, and applied two coats of copper paint to the bottom. He admits, however, that he did not caulk the entire hull.

It seems that the boat remained at the shipyard for several months, during which time, so Canulette testified, rain water entered the 'boat and it had to be bailed several times. On the other hand, Clesi claims that Canulette did not work on the boat until long after its delivery, and that Canulette’s son (who did not testify) constantly made excuses, and gave as the reason for the delay in starting the work that the shipyard workers were extremely busy. Clesi says he called on plaintiff several times importuning him to do the job.

At any rate, Clesi eventually received the Ora, but he claims that its motor failed to function and it was necessary to engage the services of a mechanic. This mechanic testified as to the work done on the motor, which he said took sixteen hours to complete, and for which he charged $75.00.

After the motor repairs, Clesi left for Delacroix Island in the boat. He and Mo-linary, one of the two men who accompanied him on the trip, testified that shortly after leaving the shipyard the boat commenced to leak badly, and that in crossing Lake Borgne the three of them constantly had to bail out water, otherwise the boat would have foundered.

Clesi and Molinary stated that it was necessary to tie up at Shell Beach because of the leaks. Temporary repairs were made there, and the next day the boat was taken to' Delacroix Island by two persons who were to use the Ora to trawl shrimp. At the island, the boat was taken to the shipyard of Manuel Montalonie, where it was caulked and the bottom coated with copper paint, at a cost of $85.00.

Plaintiff’s opinion was that if the boat leaked on the trip the water came in through the stuffing box, which, as he had warned Clesi previously, was in bad condition. Clesi insisted that the seams leaked badly, and that the water poured in through-the seams.

The testimony of Clesi and Molinary is. uncontradicted. They are emphatic that the trip to Shell Beach was hazardous because of the large number of leaks, and! that they feared at times that the boat would be swamped. The two men at Shell' Beach who took over the boat from Clesi also testified that it leaked water on the.way to Delacroix Island.

Plaintiff’s counsel contend that even if it be accepted as a fact that the boat did leak, Canulette nevertheless is entitled to-the price of his work, although it was defective or unfinished, and that defendant’s, only remedy is for a reduction of the prica-to the extent of the damages sustained by. reason of the defective performance of tha contract. In support of this argument,, counsel cite several cases, among which are: Reimann Construction Co., Inc., v. Upton, La.App., 178 So. 528; Merrill v. Harang, La.App., 198 So. 386; and Brandin Slate Co. v. Bannister, La.App., 30. So.2d 877.

Under-the cited cases, a contractor - may recover the value of his work, even though it be unfinished or defective, and. the remedy of the owner is to have the price reduced to an amount necessary to perfect or complete the work. However, that rule applies only where the contractor has substantially complied with his undertaking, as that is all the law seems to require. Davidson v. McGrath, 5 La.App. 125. In other words, upon delivery of the work by the contractor, it must be in such state of completion and perfection that the owner was to some extent benefitted thereby.

But, as we view the testimony of Clesi, Molinary, and the two residents of Shell Beach, which is uncontradicted, it is obvious that whatever work was done by Canulette was so defectively and imperfectly performed as to be worthless to Clesi and absolutely of no benefit to him. There was no substantial compliance with the contract, and the rule announced in the cases cited by appellant cannot here apply.

The testimony of plaintiff and two of his workmen was that four new bottom planks were installed. The two residents of Shell Beach, who had the boat pulled onto the ways at Delacroix Island, testified positively that there were no new boards in the boat’s bottom, and that there was no evidence that the bottom had been coated with copper paint as claimed by plaintiff. It was necessary to have the bottom painted at Delacroix Island.

This leaves for consideration the reconventional demand. The first item is for the $75.00 which Clesi paid to the mechanic for motor repairs. Defendant’s contention is that Canulette allowed the boat to sink and to remain submerged for some time, which caused a freezing and corrosion of the motor, inhibiting it from functioning, and necessitating the repairs. There is no evidence indicating that the motor was under water for any considerable period of time. Canulette said that he found the boat submerged the morning after it was delivered by Clesi, and immediately bailed it out and placed it upon the ways. Clesi admits that the Ora leaked badly when he brought it to -Canulette’s place, and if the boat sank overnight, it certainly cannot be said that this is attributable to negligence on the part of plaintiff, and we do not think that defendant is entitled t.o a reimbursement for the cost of the mechanical work done on the motor.

We fail to see how the other item of the reconventional demand, i. e., the $85.00 paid at Delacroix Island for caulking and painting, can possibly be a proper one for allowance. Defendant disavowed plaintiff’s demand, and we have disallowed it, and certainly defendant has no legal basis for claiming the price which he may have paid someone else to caulk and paint the bottom of the boat.

This case involves solely and only a question of fact, and the lower court, who saw and heard the witnesses and appraised their veracity, dismissed the demands of both parties. The findings of fact of the judge a quo are persuasive, and there appearing no error patent in the record or in the judgment, we think it should be affirmed.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., takes no part.


text:
    MONTELBANO v. SHEPHERD CAB OWNERS ASS’N et al.
    No. 19050.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    Rehearing Denied May 9, 1949.

      Charles G. Thomas and Henry A. Gabb, both of New Orleans, for plaintiff-appellant.
    R. A. Dowling and John J. Jackson, both of New Orleans, for defendants-appellees.
   McBRIDE, Judge.

.This appeal, which involves an accident that happened a few feet from the intersection of Tchoupitoulas and Jena Streets in the City of New Orleans, in the early morning of June 14, 1946, presents only a question of fact.

Tchoupitoulas Street is a paved two-way street and runs in an uptown-downtown direction; Jena meets Tchoupitoulas at a right angle, but does not cross it for the reason that buildings of the Lane Cotton Mill occupy what would be the continuation of Jena Street on the river side of Tchoupitoulas.

Plaintiff, a pedestrian, attempted to cross from the woods. side to the river side of Tchoupitoulas Street, and was run into by a taxicab travelling towards downtown on Tchoupitoulas Street in its proper traffic lane. She sues Samuel Burns, Jr., owner of the taxicab; the driver, Herman J. Smith; and the liability insurer, Shepherd Cab Owners Association, all jointly and in solido, for a large sum for her personal injuries, loss of earnings, and medical expenses. Plaintiff charges that the accident resulted solely from the fault of the driver of the taxicab, in driving it at an excessive rate of speed and in failing •to have‘it under control. Defendants admitted the accident, but they deny that it was caused through the fault of the driver. In the alternative, defendants pleaded that plaintiff was contributorily negligent. After hearing the case on its merits, the lower court dismissed plaintiff’s suit, and she has prosecuted this appeal from the judgment.

Plaintiff and her sister, a Mrs. Philli-pello, worked at the Lane Cotton Mill. At about 6:55 a. m. on the date of the accident, they entered a store on the uptown-woods corner of Jena and Tchoupitoulas Streets for the purpose of buying their lunches for the day. The order of Mrs. Phillipello was filled first, and she left the store and crossed Tchoupitoulas Street. When plaintiff’s order was filled, she made her exit from the store at some distance behind her sister. Two large trucks were parked in front of the store; one, it seems, completely blocked the lane which a- pedestrian would normally use in crossing Tchoupitoulas Street. The other truck was about two or three feet in front of the one above mentioned.

Thus, finding the usual pedestrian passageway blocked, plaintiff says she walked between the two trucks, looked in both directions, and saw no traffic except an automobile at about Cadiz Street, one block away towards uptown, but she was. unable to determine whether it was in motion. She then proceeded onward and had nearly crossed Tchoupitoulas Street, when she was run into. After having observed the automobile at Cadiz Street, plaintiff paid -no further attention to- it until it was. upon her.

It is not disputed that the right front fender of the- taxicab struck plaintiff, and that she was thrown sideways partly beneath an automobile which was parked on. the river side of Tchoupitoulas Street. The cab travelled only a■ short distance-after the accident. The point of impact was about ten feet above Jena Street, as. is attested to by the location of broken, glass from the right headlight, of the cah, which was shattered, and also by the point at which plaintiff was lying.

Plaintiff’s sister did not see the accident, and the only. material part of her testimony is reposed in her statement that plaintiff was lying about ten feet- above Jena Street partly under the parked automobile.

Mrs.- Bongard, also an employee of the cotton mill, who was on the river-side sidewalk of Tchoupitoulas Street, testified on direct examination that she noticed Miss Montelbano walking in/ the middle of the street and that the cab was •approaching at a “good rate of speed” ■fifty or sixty feet away, 'but she paid no further attention to it and did not see the accident.

However, at another point in her direct •examination, this witness testified:

“Q. When you saw Miss Montelbano in the middle of the street, where 'was this taxicab? A. Well, it was between Cadiz and the middle of the block from Jena.”

John Lopez, the brake inspector for the Police Department, made an examination of the taxicab after the accident, and found that the brakes were “fair.” The steering apparatus of the cab, however, was in poor condition, and an almost complete turn of the steering wheel could be made without causing the wheels to respond. He deemed the! taxicab unsafe, and ordered that it be towed to a repair shop.

It will thus be seen that the only plaintiff eyewitness to the accident was Miss Mon-telbano herself, and she knows nothing except that she was struck when nearly across the street.

Herman J. Smith, the driver, and his brother, who was riding in the taxicab, gave their versions. The cab had discharged a passenger at Cadiz Street and was then driven down Tchoupitoulas Street. Cars belonging to workers at the mill were parked on both sides of the street, but a narrow, though sufficient roadway remained to accommodate vehicles travelling in both directions on Tchoupitoulas Street.

The cab driver made some statements which are conflicting. He first said that plaintiff came out of the side exit of the store, emerged from between the parked •trucks, and then ran directly into his path. Upon being questioned by -the court, he denied that he saw plaintiff leave the store, and insisted that he did not see her until she was .right in front of the .cab. ■ Later he stated that plaintiff Was three feet from the trucks when he first saw her from a distance of ten feet. According to the witness, he immediately applied his brakes, but could not avert hitting her, and the cab travelled only a short distance after the accident.

.The driver was confronted with a statement which he made to the investigating police officers about two hours after ' the accident, in which he stated that the cab was about “a-quarter of the block before hitting Jena Street,” when he saw plaintiff run out from between the trucks.

Hugh Smith, who was riding in the cab; testified that plaintiff, who was running, darted out from between the trucks, as though she was trying to catch up with some one. This witness, at another point in his testimony, stated that he first saw plaintiff when she was directly in front of the cab, running across the street at an angle towards Cadiz Street. He explained his first statement 'by saying he judged that she had passed between the parked trucks, because after the accident he noticed their positions at the corner.

Counsel for plaintiff argue that in view of the contradictions the testimony, of the Smiths is unworthy of belief, and that the written statement of Herman J. Smith given to the police officers shortly after the accident impeaches all of his testimony, and is entitled to greater credence. Counsel say that the written statement proves conclusively that the cab was a quarter of a block away when Miss Montelbano came into Tchoupitoulas Street.

Plaintiff also points out that Mrs. Bon-gard testified that when Miss Montelbano reached the middle of Tchoupitoulas Street the cab was fifty or sixty feet away. Mrs. Bongard’s testimony, -however, does not impress us. If plaintiff had been in the middle of the street when the cab was fifty or sixty feet away, it seefns to us that she Could have crossed the street without incident. The record does not show that the taxicab was exceeding the speed limit; Mrs. Bongard said it was going at a “good rate,” while the only other witness who testified as to its speed, Hugh Smith, said it was travelling at about fifteen or twenty miles an hour. Then, too, there is an inconsistency in Mrs. Bongard’s statements; she also said the cab was about one-half of a block from Jena Street when Miss Montelbano was in the middle of Tchoupitoulas Street.

Regardless of the apparent conflict in the testimony of the cab driver and his 'brother as to some details, they seem to have given the more correct version as to what happened, and we gather, after an analysis of the entire record, that Miss Montelbano entered Tchoupitoulas Street, without paying heed to oncoming traffic, directly into the path of the cab. It is inconceivable that the cab was at Cadiz Street, one block away, when she entered the street. Both Smiths insist that plaintiff ran from between the trucks, and Hugh Smith stated that it appeared as if she was trying to catch up with some one. We cannot overlook the fact that Miss Montelbano and her sister left their home together on the morning of the accident and entered the store together to buy their lunches for the day. The sister, Mrs. PhillipelJo, left the store first and was ahead of Miss Montelbano, and it is not unlikely that Miss Montelbano did walk fast, or was running as the Smiths said, in an effort to catch up with Mrs. Phillipello. The entrance to the mill is at Cadiz and Tchoupitoulas Streets. The record shows also that employees of the cotton mill are scheduled to be at their posts by 7 a. m. The two sisters entered the store at 6:55 a. m., which allowed them but five minutes to make their purchases and get into the mill. Miss Montelbano worked on a loom on the second floor at the Jena Street end of the building. She had but little time to reach her post before 7 a. m., and this circumstance, too, leads us to the belief that she did not walk into the street at a normal gait, 'but rather was making haste-so as not to report late at her job.

We are cognizant of the testimony of the brake inspector that the taxicab was in poor condition. He testified, however, that its brakes were “fair,” and made no: complaint about this part of the mechanism. The defective steering wheel had' nothing whatever to do with the accident. Smith applied the brakes immediately upon seeing plaintiff, and the evidence abundantly shows that the taxicab was brought to a stop within a very short distance. We find ourselves unable to convict the-taxicab driver of negligence.

Counsel strenuously argue that the driver of the cab had the last clear chance-of avoiding the accident. They contendí that he could not properly maneuver the cab because of the defective steering apparatus. Our study of the evidence does-not show that Smith could have done more than to apply his brakes. When Miss Montelbano emerged from between the-parked trucks, we believe, the taxicab was. immediately upon her, and the driver had insufficient time and space within which to avoid running into her. The doctrine of the last clear chance is inapplicable to this, case.

As we said at the outset, only a question of fact is involved in this case-,, which was resolved by the judge a qao adversely to plaintiff’s contentions. Finding no manifest error in the judgment, we should not disturb it.

The judgment appealed from is affirmed.

Affirmed.


author: MOISE, Justice.

text:
    215 La. 143
    BURK v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 38505.
    Supreme Court of Louisiania.
    March 21, 1949.
    Phelps & Gibson, of Ponchatoula, for ■plaintiff-appellant.
    Joseph A. Sims, Dist. Atty., of Hammond, and Erlo J. Durbin, Asst. Dist. Atty., of Denham Spring, for defendant-appel-lee.
   MOISE, Justice.

Plaintiff brought this action to recover from the Livingston Parish School Board the sum of $5,987.47, alleged to be due “under a verbal agreement and by a resolution passed by the unanimous vote of all members of the Board present * * On the filing of this suit and by reason of the above allegation, made in Article 4 of the petition, the Board obtained an order of court for oyer of the purported resolution. The plaintiff’s return was that he had never had a copy of the resolution in his possession and from information and belief, he was of the opinion that the resolution was a verbal one. The School Board filed an exception of no cause or right of action. The plaintiff then pleaded estoppel. The court below sustained the exception of defendant and dismissed the suit. On the appeal then taken to this court, the plea of estoppel was maintained, the judgment of the district court was reversed and the case remanded. 190 La. 504, 182 So. 656.

On the remand of the case, the defendant filed an answer in which it admitted that plaintiff was employed as an architect to prepare plans and obtain necessary data in connection with certain school projects in Livingston Parish, pursuant to a written resolution of the School Board dated December 18, 1933, a copy of which was attached to and made a part of the answer. This answer also contained a reconventional demand for an alleged overpayment of $1,985.98. Upon the trial on the merits, the district court rejected the demand of plaintiff and dismissed the suit at his costs and rendered judgment in favor of defendant on the reconventional demand -in the sum of $1,856. The plaintiff is now appealing from this judgment.

The foregoing resolution was urged by the School Board as a defense to the main demand and this resolution is the basis upon which the reconventional demand of $1,985.98 is made. There was no formal written contract signed by the proper officer of the School Board and the plaintiff. There is, therefore, now a dispute between the parties as to just what the contract is and a determination of the truth is the foundation upon which must rest the judgment.

The resolution provides for the employment of plaintiff in preparing plans, in getting all the data for the work, in filing applications before the Civil Works Administration, and in representing the Livingston Parish, School Board until the termination or completion of the work. The compensation to be paid plaintiff was fixed at 8% of the cost of the work done and was to be paid as the work progressed and, in the event the work was suspended by the Civil Works Administration and finally abandoned, “the Livingston Parish School Board shall not be liable for any fee in excess of 8 per cent of the cost of labor performed and the cost of material actually used on the building”. The work was never completed. The reconventional demand is based upon the last quoted provision of the School Board’s resolution. The School Board contends that the plaintiff was erroneously overpaid for the work performed and the cost of material actually used on the building.

The plaintiff contends that, since there was no written contract signed by the parties and since the defendant does not deny that an agreement was made, the terms and conditions of the agreement should be gone into, to amplify and explain through parol evidence the actual intent and agreement of the parties; and that the trial judge’s exclusion of the evidence on this Subject was therefore highly prejudicial. Plaintiff also argues that the district court was in error in excluding testimony sought to be offered by him to show that the minutes of the School Board were inaccurate, and in refusing the eliciting of evidence on the subject of the numerous pages missing from the official minutes of the Board. We feel that because there is no replication under our law and because of the manner in which the aforesaid resolution was pleaded, in order to determine with exactness the meeting of minds of the parties, that parol evidence is admissible to show the necessary facts, as well as the terms and conditions thereof, so that the court can predicate its judgment thereon and do substantial justice to the interested parties. It is true that parol evidence cannot be admitted to vary, explain and contradict a written contract, but here we do not have a written contract. The question to be decided is whether parol or extrinsic evidence is admissible to contradict or vary the terms of a written instrument such as the official record of School Board proceedings.

The above question was considered by this Court in State ex rel. McClendon v. Simmons, 40 La.Ann. 758, 5 So. 29. In that case both McClendon and Simmons claimed to have been elected by the police jury to the office of Treasurer of Claiborne Parish. The official minutes of the police jury showed that McClendon was elected. The district court held that this fact unquestionably made a prima facie case in favor of McClendon. The defendant sought to show by parol evidence (the testimony of the secretary of the board) that on the first ballot Simmons had received a majority of the votes but that the president had arbitrarily refused to declare his election. The defendant also proposed to require the witness, secretary, to correct the minutes by supplying the omitted facts. The Court held that the views expressed in the case of Gaither v. Green, Tax Collector, et al., 40 La.Ann. 362, 4 So. 210, squarely covered the point and were controlling, and then quoted with approval the following language from the Gaither case:

“ ‘The official minutes of the proceedings of the board of levee commissioners-show that they levied the tax in question at a meeting duly convened and held at Delta, La., on the 22d of January, 1886.
“ ‘Plaintiff’s -counsel sought to impeach this record by parol evidence, but the introduction of it was successfully resisted by defendants, on the grounds, viz.:
“‘(1) That the official minutes of the board constitute a public record which imports absolute verity on its face, and the same cannot be contradicted by parol, nor attacked in collateral proceedings to which said -commissioners are not made parties. ^ ^
“ ‘In our view of this question it cannot be examined and decided in this collateral way, and in a suit to which the commissioners who levied the tax are not made parties.’ ” [40 La.Ann. 758, 5 So. 30.]

There can be no fault found with the decision, from the agreed statement of fact, when we apply the law. But, this decision is not applicable to the instant case because of the factual situation. In the Mc-Clendon case, the Court held that proceedings of the public board could not be attacked or contradicted in a collateral action to which the board was not a party, but, in this suit, the School Board is a party defendant. The action is against it and it has pleaded its own resolution both as a defense to defeat the main action and as plaintiff in a reconventiónal demand, to recover a sum of money from the plaintiff. The School Board itself is made a party through the action of the plaintiff and by virtue of the pleadings, which they have filed.

Article 2276 of the Revised Civil Code has been quoted by plaintiff in support of his contention that the defendant School Board confirmed and ratified the execution of the agreement by accepting its performance and having paid a part of the compensation therefor and having received benefits therefrom. This Article has no application here because it concerns the admissibility of parol evidence with reference to a written contract. In the instant case, the resolution of the School Board does not indicate the acceptance of the plaintiff and, therefore, it cannot be considered to be the agreement of the parties.

In 20 American Jurisprudence, Evidence, Sec. 1106, we find the following language:

“There may be writings relating to the contract between the parties which do not embody the contract itself. In such a case, where the contract rests upon an oral agreement, parol evidence is admissible as to the terms of the contract notwithstandr ing the writings.
“Before the rule that no parol evidence can be received to vary the stipulations of a writing alleged to be a contract between the parties to a cause on trial can apply, the writing must be shown to be their contract. An unaccepted written statement by one party to an oral contract, stating his version of the agreement, does not reduce the contract to writing in favor of the other person so as to preclude the writer from giving oral evidence of the terms of the contract.”

We find that the jurisprudence of other states is to the effect that the verity of a resolution or the minutes of a public board are as strong as truth of Holy Writ and that the usual, but not exclusive, way to obtain a correction is a direct attack such as a mandamus, making the public board a party to the. proceeding, as held by our own Court, but here we are bound to givé a ' practical common sense construction. The School Board is the defendant in this, action. Since there is no replication under Louisiana procedure, the law does not exact of its suitors the doing of a vain or useless thing. When a party pleads a resolution as a defense to an action and then relies on the resolution for recovery as a plaintiff in reconvention, there not being the sanctity of a written contract, the plaintiff has the right to impeach or discredit the defense made and this is a wise-construction, to meet the ends of justice- and not create a multiplicity of suits. Parol evidence should be admitted.

For the reasons assigned, the judgment appealed from is reversed and set aside,, and the case is remanded to the district court for further preceedings according to law and consistent with the views herein expressed. Costs of this appeal shall be-paid by. defendant; all other costs to await the final determination of this litigation.

O’NIELL, C. J., takes no part.