text:
    No. 250.
    Simon Levy, Jr., vs. Joseph C. Beasley.
    The principal controversy in tina oas» is one, of fact-.
    Where suit is brought on an open account, secured by a collateral act of mortgage, and notes thereto attached, winch were discounted and the proceeds thereof placed to the credit of the maker, and demand is made for the, recognition and enforcement of the mortgage, the plaintiff is entitled to recover from the defendant, the additional sum of five pci cent on the amount of the mortgage notes; as attorney’s fees, when same is stipulated in-the act.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Land Land for Plaintiff and Appellee :
    1. A factor who has complied with his contract is entitled 1 o commissions on all cotton promised to he shipped to him. 24 Ann. 159 ; 30 Ann. 503.
    2. Attorney fees stipulated in an act of mortgage are due when the, mortgagor is bound to employ counsel to collect Ms claim. 30 Aim. 65 ; 39 Ann. 397.
    3. No separate verdict or judgment was necessary on defendant's claim for damages for an alleged violation of the contract sued on and for the alleged wrongful suing out of the sequestration in this suit, and it was defendant’s duty to ask for a special Uncling before the verdict was recorded. 4L.40; 17Tj.92: 6 Ann. 222; 10 Ann. 53: 20 Ann. 455; 38 Ann. 570.
    4. If the re,conventional demand was overlooked, the Supreme Court will corred the. oversight, without- remanding the case. 10 Ann. 494.

      Alexander & Blanchard for Defendant and Appellant:
    A charge of interest exceeding eight per cent is usurious, and under the Revised Statutes, Section 1884, the entire infcorest is forfeited, and not simply that in on cos 8 of the legal rate. 15 Ann. 537: 10 Ann. 239; 23 Ann. 249 ; 34 Ann. 893.
   The opinion of the Court was delivered by

Watkins, J.

This is a suit upon an account current for plantation supplies furnished the defendant by the plaintiff during the year 1888, and amounting- to something more than $10,000; and for the recognition and enforcement of a contract of pledge on defendant’s crop, and a mortgage which had been executed and delivered to the plaintiff as collateral security for said account.

Tlie plaintiff further avers that the defendant failed and refused to deliver his cotton as he had contracted to do, notwithstanding lie was formally put in default by a timely demand of him so to do, and that, for that reason, he is entitled to recover of him commission of $1 per bale on the total number of four hundred bales which defendant produced, or $4db. He also demands judgment for amount of live percent on $8000, as- attorneys’ fees, which are stipulated in to the act of mortgage.

On appropriate averments plaintiff obtained the sequestration of defendant’s crops.

The defendant’s answer is a general denial coupled with the averment that, contrary to a special agreement made with the plaintiff, and adverse to his legal l-ig-hts, the plaintiff charged him prices far in excess of the market value of the articles purchased, and that these overcharges aggregate $1600.

That-, notwithstanding the exorbitant discount charged and deducted from the amount of the proceeds of the notes which were placed to his credit, the plaintiff demanded and deducted an additional ten per cent, as interest, and t-liat said overcharge aggregates $1060. Hcclaims credit for these sums amounting to $2660.

He further claims that he failed and refused to advance to him money to enable him to cultivate a portion of his land, of about ninety acres, which he had planted, and that on that account he was compelled to abandon its cultivation, and a loss was entailed upon him of $200 thereby.

Finally, he sets up a proffered settlement and'an adjustment of the differences existing between himself and plaintiff, and its declination by the plaintiff, and the subsequent wanton, useless and illegal seizure of his property. He specially avers that the act of the plaintiff in suing out the writ of sequestration was malicious, and wantonly and wilfully done, in order to injure him and break down Ms credit, and thereby he has been damaged and injured in the sum of $2000. The aggregate amount of Ms demands is $6660.

The case was tried by a jury and they found a verdict in favor of the plaintiff for the entire amount of Ms account, and the farther sum of $150 on account of commissions on the sale of cotton not delivered according to contract. They deducted the sum of $259 88 on the score of excessive interest, and $45 as the amount of excessive, or overcharges on sales of merchandize. The net amount for which there was verdict and judgment is $10,134 90, with legal interest from judicial demand, on $2429 84, and eight per cent interest on $8000, in pursuance of the terms of the act of mortgage; audit also recognizes the*mortgage and privilege as claimed.

From a judgment based on this verdict the plaintiff prosecutes a devolutive appeal, without having previously applied for a new trial, and in this court has assigned no error on which he relies; but in the brief of his counsel, reliance is placed upon the proof of* most all of his demands, and he claims an increase of credit.

We have examined the evidence and noted the points of objection urged by defendant’s counsel. There may have been some honest differences between the plaintiff and defendant, as to the exact nature of their rights, but in the light of the record, all of them seem to have entirely disappeared; for the verdict of the jury appears to conform to the facts proven on the trial, and evinces a clear understanding of the case. t

In this court, plaintiff’s counsel filed an answer to the appeal and demands an increase of the judgment in his favor. Tlie only item deserving of our attention is that of five per cent on the amount of $8000 collateral mortgage, amounting to $400.

There is a stipulation in the act of mortgage that the mortgagor shall pay five per cent attorney’s fees “an the event of suit for the collection of said notes” for $6500 and $1500. This is a suit on the account, which is secured by the pledge of these notes as collateral security, and the recognition and enforcement of the mortgage is demanded and the verdict and judgment awards his demand.

In Mullen vs. His Creditors, 39 Ann. 398, we said, “ this court has decided that attorney’s fees in similar cases form part of the capital. So that, when the face amount of the note only is paid, it cannot be said that the claim is satisfied. The fees of the attorney remaining unpaid have to be satisfied out of the proceeds.” Zimmerman vs. Langles, 36 Ann. 65.

We think plaintiff is entitled to recover tli% amount of five per cent on $8000, as the amount of attorney’s fees stipulated in the mortgage. It is, therefore, ordered and decreed that the amount of judgment be increased by the sum of $400, and as thus amended the same be affirmed with all costs taxed defendant and appellant.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 248.
    Henrietta Steinhardt vs. E. J. Leman.
    The voluntary abandonment of an attachment renders the attaching creditor and surety responsible for damages for the wrongful sueing out ot the suit. But only such damages can be recovered as have been actually sustained when the attaching creditor acted without malice and upon proabable cause based upon reasonable grounds.
    The intent to defraud can only be shown by the acts of the debtor upon which the creditor must base his belief. The creditor may be mistaken in his belief, but if the acts of the debtor are such as#to justify that belief, the debtor, and not tlie creditor, is in default.
    Any other construction of the law would open the door for the writ of attachment to be used as a means of profitable speculation'and the extinguishment of a debt in damages.
    APPEAL from tlie First District Court, Parish of Caddo. Hieles, J.

      Land & Land and Wise & Herndon for Plaintiff and Appellant:
    1. If a plaintiff in attachment voluntarily abandons it, he renders himself and his surety responsible in damages; and if it be set aside by order of court, it is prima fade evidence that it was wrongfully issued, and that damage to some extent has been sustained. The probability and justice of the demand may he pleaded and given in evidence in mitigation or justification of a claim for vindictive damages. 3 L. 103, 291; 2 R. 313; 11 Ann. 302.
    2. It is the disposal of his property by the debtor with the intent to defraud, that gives a right to the writ of attachment, and that intent must be clearly proved. 24 Ann. 69; 35 Ann. 339, 624.
    3. "Where an attachment is dissolved by judgment, in a snit for damages for the illegal suing out of the same, the fact of the dissolution of the attachment is a finality. 34 Ann. 341. The same rule governs where the plaintiff voluntarily abandons his attachment, which is a voluntary dissolution of tlie same.
    4. On the dissolution of an attachment issued on the ground that the debtor was about to dispose of his property with intent to defraud his creditors, when the attaching creditor acted without malice and solely under the advice of an experienced attorney, the defendant shall recover the damages actually sustained, and no more. Damages actually sustained comprise not only pecuniary loss and actual expense incurred, such as costs and counsel fees, but also the mortification, annoyance and vexation caused to defendant by attachment. 33 Ann. 6; 34 Ann. 341; 38 Ann. 351.
    5. Plaintiff’s purpose and motives in selling her property were thoroughly honest: her action was open and above board j communicated to all interested and to the defendant himself. The attachment was sued out on the ground of fraud and voluntarily abandoned. After-wards, plaintiff sold out her property, paid nearly all her debts, including that of defendant. Plaintiff is thoroughly solvent. Under these circumstances the action of defendant in suing out the attachment was insulting and aggravating in the extreme, and well calculated to wound and incense her, and to cast imputations upon her character as an honest woman. 38 Ann. 351.
    6. Street rumors of the bad character and financial reputation of the agent, are inadmissible in a suit by his principal for damages for an illegal attachment. Besides it is hearsay. 6 5T. S. 591. ^
    7. "Where the Supreme Court entertains no doubt upon the evidence, which is sufficient to do justice between tlie parties, the case will not be remanded, but be decided in direct opposition to the verdict of the jury. 1 H. D.} p. 92, Eo. 3; otherwise the case will be remanded. Ib. Eb. 4.

      Alexander & Blanchard and Bell & Randolph for Defendant and Appellee:
    1. In the assessment of damages for a wrongful attachment, the rule is that the plaintiff is entitled to recover only the actual damages sustained and no more, unless in a case where the attachment was utterly unfounded and malicious. 13 Ann. 22; 15 Ann. 16; 33 Ann. 6 : 34 Ann. 341; 35 Ann. 348, 518; 39 Ann. 132; 17 Ann. 182, 479.
    2. The question of jmobable cause depends upon the party’s honest belief, based upon reasonable grounds.
    In this case the plaintiff was without credit; owed large debts; was losing money in the hotel business; had "been sued in the justice court upon small bills, including a gas bill; was confessedly unable to pay indebtedness without selling furnitnie, ihe only property owned by her; was negotiating the sale of it and did sell*it and leave the State immediately thereafter. The attaching creditor had repeatedly demanded payment of a small bill of $59, and had been put off from time to time by promises which were never fulfilled. Finally the debtor agreed to return some wine in payment of the bill and refused to deliver when called on for it, telling the creditor’s clerk that she was about to sell out and that it was none of his business how he could got his money. The creditor then attached two barrels of wine, but within a few minutes thereafter voluntarily released it and dismissed the attachment at his costs.
    Eo malice is shown, and the evidence establishes abundant probable cause and reasonable grounds for suing out the attachment.
    3. Even if the lower judge charged improperly, yet if the evidence would not have authorized a different verdict, it will be upheld and the case will not be remanded. 5 Ann. 43 ; 7 Ann. 678; 10 Ann. 150: 21 Ann. 330.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff, by her agent, S. Cohn, leased the Phoenix Hotel in the City of Shreveport. The power of attorney from Mrs. Steinliardt to Cohn is a general mandate to do and perform all things of a business nature in her name and behalf and for her benefit. The acts of Cohn in almost every conceivable business relation were her acts under the mandate. He managed the Phoenix Hotel.

The defendant, a creditor of the plaintiff for the sum of $59 92, sued out a writ of attachment against plaintiff’s property, alleging as the reason therefor that she lias disposed of or is about to dispose of her property rights and credits, or .some part thereof, with intent to defraud her creditors or give ail unfair preference to some of them.”

Dii der the writ the constable seized at the Phoenix Hotel two casks of wine. When the property seized was taken to the magistrate’s office lie was informed that the attachment had been dismissed. The attaching creditor thus voluntarily abandoned the attachment.

The plaintiff in this suit brought this action against the defendant, Leman, for the wrongful suing out of the writ of attachment; claims damages in the amount of $5000 for the illegal, malicious and wrongful attachment of her property; $1000 damages to her business reputation ; $1000 damages for the mortification, annoyance and vexation the attach ment of her property caused her, and $3000 as punitive damages.

Defendant, iu his answer, admits the siring out of the writ of attachment and its voluntary abandonment. Ho also avers that plaintiff was indebted to him in the amount sued for in the attachment suit; that repeated demands had been made for its payment; that plaintiff had promised to deliver some wine to pay said amount, and afterwards refused to do so, and that sire was about to sell her lease of the Phoenix Hotel and the property contained therein, which constituted all the property she possessed or owned in Caddo parish.

The case was tried before a jury and there was a verdict in favor of the defendant, and a judgment rendered thereon, from which the plaintiff has appealed.

Two of the witnesses stated that they had heard reports about the time of the attachment, that there was a cloud upon the character and reputation of jdaintiff’s agent before he came to Shreveport.

Ojectiou was made, and overruled, to the introduction of this evidence on the ground that it was hearsay and inadmissible. The objection should have been sustained and the evidence rejected. But as the record contains sufficient evidence of the facts upon which the attachment issued, it will be unnecessary to remand the case.

Plaintiff’s counsel also excepted to the following charge of the court

1. “And if you find from the evidence that the plaintiff in attachment voluntarily dismissed it without any explanation, that is sufficient evidence that it was wrongfully sued' out, but if the act of dismissal has been explained, or reasons given for its dismissal, yon will determine from all the facts whether it was dismissed because wrongfully obtained or for reasons consistent with the legality of its issue.”

2. “ Mere belief of the fact without inquiry and grounds of belief do not amount to probable cause, but belief grounded on investigation and fact do amount to provable causo, whatever may he the truth.”

3. “Now if yon find that the attachment was sued out maliciously and without probable cause, you will give compensation to the plaintiff for her wounded feelings, vexation and harassment and injuries to her reputation.”

We do not thiulc there is any legal objection to tire charge. Taken in its entirety it is impartial. There was nothing in it to influence the jury in favor of the defendant. The evidence would not have authorized a different verdict.

The attaching creditor, Leman, voluntarily abandoned the attachment, and tiras rendered himself and surety responsible for damages for the wrongful suing out of the writ. 3 L. 103: 2 R. 318.

The defendant in the attachment suit, however, can only recover such damages as have been actually sustained, when the attaching creditor acted without malice and upon probable cause based upon reasonable grounds. 13 Ann. 22; 33 Ann. 6; 15 Ann. 16.

The record establishes the following facts: The Phoenix Hotel, as managed by the plaintiff, sustained losses. Plaintiff, or, which is the same thing, S. Cohn, her manager and agent, had no financial standing or credit in the City of Shreveport. It was difficult for the plaintiff to procure the necessary supplies for the hotel. The hotel owed some $3000, without means to pay this amount. It is evident that his financial standing and credit wore not affected by the attachment. Creditors who had trusted him before still continued to do so. The witnesses, with practical unanimity, state that his credit was not affected by the attachment. It was not good before the attachment, and it remained in the same condition thereafter. She is, therefore, not entitled to damages for injury to her business reputation and credit.

The attached property was only in the custody of the office for a short time. No furniture was removed from the house, and there does seem to have been any harshness in the service of the writ. The two casks of wine were quietly seized, and quietly, as requested by Cohn, the agent, taken out the hack way purposely to prevent notice and to avoid vexation.

It is difficult to estimate damage for the wounding of one’s feelings, and there is not sufficient evidence in the record upon which to make an estimate of the mortification caused by the attachment to the plaintiff, and, therefore, the claim of $1000 for this is rejected.

The plaintiff is entitled to relief if the writ was sued out maliciously and without probable cause.

The lease of the Phoenix Hotel was offered for sale with the furniture contained therein.

There is no doubt but some of the creditors of the hotel had been told by Colin that he intended to sell for the purpose of paying debts contracted in Shreveport. The hotel lease was sold, and these debts, with the exception of a small amount, paid. Leman, the attaching creditor, was paid. At the time of the attachment, negotiations were in progress for the sale of the lease and furniture. It does not appear that Leman had been informed of the intended sale for the purpose of paying plaintiff’s debts in the City of Shreveport. On the contrary, plaintiff’s conduct, by her agent aud manager, towards Leman, the attaching creditor, was such as to lead him to believe that his debt would not be paid.

Leman’s bill had repeatedly been presented for payment, and as often postponed. On the 18th of May, 1889, when last presented, Cohn, the agent, promised he would give him some wine in payment of the bill. It was agreed to take the claret, but when called for on the same day its deliveiy was refused; aud the clerk of Leman, who presented the bill, was told by Cohn that he was about to sell out, and that Leman could not- get the wine. He was thén asked, What about the money?” and answered, “'It is none of your business.”

The intent to defraud can only be shown by the acts of the debtor, upon which the creditor must base Ms belief. The intent is secret, and it is only to be ascertained by the outward acts of the debtor.

The creditor may be mistaken in Ms belief, but if the acts of the debtor are such as to justify that belief, the debtor, and not the creditor, is at fault.

Any other construction of the law would open the door for the writ of attachment to be used as a means of profitable speculation and the ex-tinguishment of a debt in damages.

Leman had not been informed that the property of plaintiff was to be sold to pay his debts. His debt had been refused, and the party whom lie had sent to collect it rudely repulsed, the agreement to settle it by giving property for it ignored, and the clerk of Leman, when he asked for the money, told it Avas none of his business.

What other remedy had the creditor but to resort to a compulsory Avrit ?

The attachment not having been sued out maliciously, aud the defendant having good grounds upon AAdiicli to base his belief for the reasons alleged in the suit, the plaintiff is not entitled to punitive damages.

Judgment affirmed.


author: Poché, J.

text:
    No. 258.
    R. T. Cole, Executor, et al. vs. The City of Shreveport.
    A contract (Inly authorized hy law, made hy an incorporated town or city for useful improvements, and duly executed hy the contractor, will he enforced against the city as a debt for which it is liable, if the means of payment provided in the contract should fail through subsequent events, not due to the laches or fault of the contractor,

      APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexander <(' Blanchard for Plaintiffs and Appellees:
    1. If tli© ad of I860, which imposed on front proprietors one-third of tin* cost of street paving*, was repealed, which is conceded, then the city was liable for the whole amount,
    • It is no ground of complaint on its part that, by the contract, it was relieved of one-third of the cost of paving, when it should have paid the whole.
    2. The provision made for tlio payment of the debt, at the time it was contracted, was entirely adequate and in intended conformity to law. That it should subsequently have, failed, through the common error of both parties, does not cancel the debt itself.
    " Debts contracted, when provided for, become, to the extent of such provision, not only claims against the provided fund, but actual and valid debts of the corporation.” 88 Ann. 300.
    8. The charter of 3871, authorized the council to issue forty-year bonds. The power thus conferred was discretionary and mandatory. It was not conferred for the benefit of third persons, and the language of the act clearly indicates an intent on the part of the Legislature to confer a discretionary power. Dillon on Municipal Corporations, Sec. 62.
    4. Under Act 309 of 1869, tlio city was bound for two-thirds of the cost of paving, because one side of the street was in front of its property, the river banks and batture. 13 Ann. 319.
    5. When a city contracts with a paver that lie shall he paid a portion of the price by the proprietors of property fronting on the street, and these proprietors refuse or neglect to pay, tlio city is bound for the amount. 5 Ann. 298, 587.
    6. Because the contract only provided for the payment out of the wharfage dues, and such dues can no longer be collected, the city is not absolved from all other means of payment. Even if the contractors had expressly agreed not to look to any other fund for payment, the city would still bo bound to pay them. 12 Ann. 225.
    7. The city had aright to contract for the paving of its streets. Such a contract was made with plaintiffs. Under it they have furnished material, expended large sums of money, and done the work. The city lias received and now enjoys the benefit of tlieir labor, material and money. Because tlio city can no longer enforce the collection of a wharfage tax, out ol‘ which, under the contract, plaintiffs were to be paid, she is not thereby relieved from payment of tlio debt altogether. 96 IT. S. 311.

      A. 1). Laiul for Defendant and Appellant:
    1. The contract sued on was made on Maj* 4, 1871, pursuant to provisions of Act 109 of 1869. a special local assessment law, which was repealed by adoption of city charter on the 27th of April, 1873. 27 Ann. 636. *
    2. Said contract was violative of said charter, which x>vohibited credit contracts for street improvements, and the pledge or alienation of wharfage dues to any particular creditor.
    3. No adequate imovision by taxation was made lor debt sued for as required by Sec. 2448 of Revised Statutes of 3870, lienee contract- is not valid. If the provision actually made was lawful but insufficient, contract is valid only to extent of such provision. 33 Aim. 3179.
    4. A pledge of wharfage dues, or the setting apart of a certain sum from general receipts, is not a compliance with the law. 29 Ann. 673.
    5. Plaintiffs who sue on a contract eapnot recover on a quantum meruit. Loqne’s Digest, p. 338, Uo.11.

      6. Tlie necessary or useful nature of tlie expenditure could not dispense from the duty of providing according to law. 31 Ann. 181.
   The opinion of tlie Court was delivered by

Poché, J.

Plaintiffs seek to recover judgment against the City of Shreveport in the sum of $47,(1(16 31, as tho unpaid balance on a. contract between them and the city for grading and macadamizing a portion of one of the principal streets of the city.

Prom a judgment in 4avor of the plaintiffs the present appeal haij been taken by defendant.

The record discloses the following facts and proceedings, which are not contested or disputed:

The contraer was executed between plaintiffs and the compe,tent city authorities on the 4th of March, 1871, and it purported to provide for payment thereof with reference to Act 109 of 1869, which required that in such contracts the proprietors of real estate fronting on the street to be paved should pa^ two-thirds of the entire cost of the improvement contracted for, and that the city should pay one-third of the same.

Por the payment of the proportion duo by the city, the contract stipulated that plaintiffs should receive all wharfage dues collected by the city from steamboats and other craft landing in front of that street, .which was used as a wharf or landing during high water, up to the amount necessary to extinguish the city’s share of the indebtedness thus contracted for.

Tlie work was in due course completed by the contractors, at a cost of $98,192 49, which amount, by collections made from the abutting proprietors and from wharfage dues and other sources, has been reduced to tlie.balance herein sued tor.

It happened that, pending the negotiations for the contract, a new charter was enacted by the Legislature for the City of Shreveport, the act being signed by the tí-overnor on April 27, 1871.

Contending that the provisions ■ of Act LOÜ of 1879, • under which the owners of abutting lots were lield for two-thirds of the cost price of such improvements, had been abrogated by the provisions of the charter of 1871, which had taken effect, at the date of the execution of the contract, on the 4th of May, 1871, two of tlie abutting proprietors resisted the claim made for tlieir respective shares in the payment of the work, and a litigation ensued, which resulted in their favor in this court in the case of Shreveport vs. Maples & Stabbs, 27 Ann. 636. It was therein decided that the provisions of the Act of I860, hereinabove referred to, liad become inoperative when the contract was entered into, and the two owners in question were released from any obligation thereunder.

The contributions exacted from all the other proprietors were paid, and the proceeds paid over to the contractors.

It happened later on that the owners of steamboats lauding- in front of tire city also resisted the latter’s claims for wharfage, and by a decision of this court, rendered in the case of Shreveport vs. Coast Line, 37 Ann. 562, which had been preceded in the same sense by a decision of the Federal Court, tlioir contention wife maintained, an din consequence no wharfage dues have been collected since December, 1878.

It thus happens that under the effect of judicial ihterx>retation, the two sources of revenue from which plaintiffs’ claim was to be liquidated have been paralyzed and destroyed, hence their contention that the city is liable, under the contract, for the remaining and unpaid balance.

The defence is substantially as follows :

1. The contract was made under the provisions of Act 109 of 1869, which had been repealed by the oluirtewof 1871, in force at the date of the contract.

2. The ordinance which authorized the contract did not provide the means of paying for it, and was a nullity under Section 2448 Revised Statutes of 1870.

3. The application of the proceeds of wharfage dues to the payment of the city’s share in the cost of the work, was forbidden by the charter of 1871 then in force.

r.

It is error to say that the only authority for the contract was Act 109 of 1869.

The corporate powers of the city under the existing charter were the only legitimate source of authority in the .premises.

The mode of payment was the only feature of the contract which rested on the authority of Act 109 Of 1869, and only in so far as the liability of abutting proprietors was concerned.

And it is on that only feature of the contract that the decision of the case in the 27th Annual did, or could have, any bearing or effect.

It is not only conceded but earnestly contended that the legality of the contract must be tested under the charter of 1871. Indeed the city must have existed and operated either under its previous, or under the new born charter.

Now Section 10 of that charter fully empowers the council to pass all necessary ordinances “to regulate and make improvements to the streets,” etc.

And Section 17 provides: “That the city council may, whenever it shall deem it to the public interest, by ordinance, provide for the paving, opening or widening of any street or streets or any part thereof s + * the cost of Which shall be paid by the city.” •* *

We may here state that it was under the provisions of this section that the two owners refered to above obtained their release from liability under the Act of 1869, the provisions of which were held to have been abrogated by those of Section 17 of the charter of 1871.

The proof in the record''is conclusive that in providing the mode of payment contemplated by the Act of 1869, all parties to the contract, and the property holders, were all iu good faith of the opinion that the act was yet in force, and all but two proprietors voluntarily acted under its provisions. In what respect has the city been injured by that honest error of judgment? It is surely not by the fact that the contract as thus understood, was vastly more beneficial to her than the contract which the new charter authorized, and under which she alone could bind herself for the entire cost of the needed and indispensable improvements which were the subject of the contract. No one is now seeking any relief under the stipulations of the contract which were nullified by the abrogation of the provisions of the Act of 1869, and we conclude that the legality of the contract is not affected by that feature of the controversy.

II.

The statement of facts in the beginning of the opinion shows that the ordinance authorizing plaintiffs’ contract did provide means for the payment of the principal of the indebtedness to be incurred thereby, as required by the provisions of Section 2448, Kevised Statutes, which was the only restriction to the full power to contract in the premises, on the part of the city, under the now charter. No interest was stipulated in the contract, and, of course, none was provided for.

But it is contended that section 17 of the charter regulated the oidy legal provision which could be made, and that the- pledge of the wharf dues was not the mode directed by law.

That portion of the section reads: ■“ Provided, that whenever the anuifiut or cost of paving said streets * exceeds the amount of funds in the city treasury, then the common council are hereby authorized and empowered to issue bonds of the city, running forty years * the proceeds of which shall be tised solely for the purpose for which they were issued.”

A casual glance at the language is sufficient to an impartial mind to see that the mode indicated is not exclusive or imperative, or, in other words, the proviso is not a limitation, but intended to be, and is> in effect, an extension of the powers conferred in the first part of the section.

The provision thus made was of slow and tardy executioil, and under the most favorable circumstances, it must have been clear to the contracting parties that many years would elapse before payment could be effected in full, but the provision was nevertheless made, and the city, of all others, could not complain of the disadvantage resulting therefrom to the contractors.

It appears to us too plain to justify us to spend time in argument, for the purpose of showing that a city council which is authorized and empowered to issue bonds for a certain purpose, is not thereby compelled to issue such bonds, and that it may meet the exigencies of the case by some other mode, or by the use of some other available resource, provided that such course be not prohibited by some other legislative restriction or limitation.

I IT.

The conclusions which we have just announced practically answer the city’s tlurd ground of defense, for we know of no law, and have been referred to none, which inhibited the city from appropriating wharf-age dues to meet the cost of an improvement which was intended at the time to answer all the purposes of a wharf.

As it has been shown that the contract was legal, and that the means provided for by the city to pay for the costs of the same have partially failed, through no laches or fault of the contractors — the question now presented is whether the city can in consequence be held directly liable for the contract.

The contention on that point is that the contractors having accepted the proffered wharfage dues, in satisfaction of tlieir work, they must be satisfied with the pound of flesh as “ denominated in the bond,” and that they have no recourse against the city outside of that particular source of revenué.

That question has been the subject of judicial investigation in several courts of this country, including our own State, and it has been served against the views pressed in this case by the' city attorney. The rule lias been applied to cases in which the contract expressly and in terms stipulated that the contractor agreed to restrict his right of payment to the resources or revenues provided for in the contract.

But that difficulty is not presented in the ease now under discussion. The contract contains the following significant clause:

“ Further it is agreed and understood that the true intent and meaning of the above promise is that said cffy in good faith guarantees and warrants the payment of the whole and entire sum due to said contractors for all the work done in accordance with this agreement.” * * *

Jurisprudence has settled that notwithstanding a stipulation specially excluding any recourse on the city, a contractor who had done useful works, and whose payment failed by reason of subsequent events which had diverted the revenues applied to his claim, could recover against the city with which he had contracted.

That was the treatment applied by the Supreme Court of the United States in the case of Hitchcock vs. Galveston, 96 U. S. 341.

The principle which underlies our conclusions in this controversy, is so well and clearly expounded by that exalted tribunal, that wé are induced to make the following extracts from their decision:

“ They, plaintiffs, are not sueing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city had power to enter into a contract for the improvement of the sidewalks; that such a contract was made -with them; that under it they had proceeded to furnish materials and do work, as well as assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these tilings the city promised to pay; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot he made in bonds because their issue is ultra rires, it would he sanctioning rank injustice to hold that payment need not he made at all. Such is not the law'. The contract between the parties is in force, so far as it is lawful.”

■ In another part of the opinion the following language depicts wdth precision the attitude of the defendant in the present case : .

“ But the present is not a case in which the issue of bonds was prohibited by any statute. At most the issue was unauthorized. At most there "was a defect of power. The promise to give bonds to plaintiff's in payment of what tlioy undertook to do was, therefore, at farthest, only ultra vires-, and in such a case, though specific performance of an. engagement to do a thing, transgressive of its corporate power may not he enforced, the corporation can he held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform.”

Tlic principle has been sanctioned by this court in the following cases : Cronan vs. Municipality, 5 Ann. 537; Semel vs. Gould, 12 Ann. 225.

In the latter case the contracting corporation had stipulated that the, contractor could have no recourse against it in case of the failure of the mode of payment as agreed upon, but the court enforced liability against it under a call in warranty.

The court as at present composed had to consider the principle under discussion in the case of Oubre vs. Donaldsonville, 33 Ann. 390. Tt was there said:

“Debts contracted, when provided for, become, to the extent of such provision, not only claims against the provided fund, but actual and valid debts of the corporation."
* * * * * * * * * *
“Were wo now to decide that the corporate authorities and the creditors were mistaken in their honest belief that the particular provision made was constitutional, we would not, on that account, feel justified in holding that the debt of the town, contracted in good faith, and, to the extent of the provision, in intended conformity with law, was stricken with nullity. Justice would require that an honest error, shared by both parties, should not operate to the advantage of one and the destruction of the other. We should hold that the corporation was bound to supply the equivalent of the provision made and to substitute a constitutional tar, for the one supposed to be, but discovered not to be constitutional."

The foregoing considerations lead us to the conclusions reached by the district judge, announced in an elaborate and very clear and able opinion, which has been of valuable assistance in our study of this case.

Judgment affirmed.


author: Fenner, J.

text:
    No. 255.
    The State ex Rel. Woodruff et al. vs. E. S. Dortch, President Police Jury of Bossier Parish et al.
    1. In the absence of special statutory authorization, courts are without jurisdiction ratione materia} to entertain cases of contested election.
    2. The foregoing rule applies as well to elections held to determine the location of a parish seat as to elections of officers.
    3. TTo statute invests the courts of this State with jurisdiction over contested elections to determine ihe parish soat.

      APPEAL from tlie Second District Court, Parish of Dossier. Boone, J.

      Alexander $ Blanehard, Land c£* Land and Joannes Hmlth for Plaintiffs and Appellants:
    1. Plaintiffs having a direct pecuniary interest in the result of the election held November 23,1888, relative to removal of parish seat of Bossier parish, have a right of action. O. P. Art. 35.
    2. Article 11 of the Constitution of 1879 guarantees adequate remedy in the courts for all legal rights. The right to vote and to have elections held according to law is too precious to he estimated in dollars and cents, and such right- entitles the citizen to a remedy in the courts of the State. 35 Ann. 637.
    3. While none hut a candidate cau contest the right to an office, and while, perhaps, courts will not entertain a contest for office unless provided for hy statute, these rules do not apply to local elections on matters of local concern, involving no title to office, such as a local assessment or the question of removal of a courthouse. 32 Ann. 841; 32 Ann. 3013; Paine on Elections, Sec. 949.
    4. Allegations that in a certain precinct there were 450 legal votes and there was actually cast, counted and returned 2820 ballots, are sufficiently speciffc to throw out the whole poll; McCrary on Elections, Sec. 548.
    5. Time for filing suit contesting an election extended to thirty days after .the official promulgation of the result. Act Rb. 24, 1877.

      Watkins & Watkins and Young & Thatcher for Defendants and Appellees:
    Tlie Supreme Court is without jurisdiction o-aiione mater ice where the petit-ion sets forth no * actual pecuniary interest in plaintiffs, of over £2000 in the matter in dispute. Const. Amend.. Art. SI. 26 Ann. 673; 32 Ann. 1135; 33 Aim. 330 ; 21 Ann. 743; 34 Ann. 834; 28 Ann. 342.
    The mere allegation that plaintiffs are taxpayers and citizens, is not sufficient to show an appealable interest in the suit. 27 Ann. 446; 1 Wood, U. S. Circuit Reports, 124.
    Act 24 of 1877, purporting to amend and re-enact Section 1421 R. S., does not repeal tlie section in toto, hut the prescription of ten days continued in the oiiginal section remains applicable to all contests of election not changed to thirty days by the amendment. 12 Ann. 432, C. C.
    In the absence of statutory authorization, the courts are without jurisdiction ratione materiato entertain the case of a contested election. 33 Ann. 89 ; 25 Ann. 263: 25 Ann. 267; 28 Ann. 698; 31 Ann. 122; 10 Ann. 670.
   Tlie opinion of the Court was delivered by

Fenner, J.

Under Section 5 of Act 33 of 1888 (which act lias been fully analyzed and interpreted in. onr opinion rendered at this term in the case of Mobley et al. vs. Police Jury) an election was held, on November 23, 1888, to determine whether the town of Haughton or the town of Benton should become the parish seat of Bossier parish. Section 6 of the act provided that the commissioners, to hold such election, should be appointed by the police jury, and should make their returns to said jury, and it was made the duty of the said jury to proclaim the result of the election within five days after holding the same, and it was also made the duty of the president of the police jury to declare the place, so found to have received a majority of votes, to be the parish seat of Bossier parish.

The election has been held; the commissioners have made their returns to the police jury, and other proceedings have been had, culminating in a declaration by the president of the police jury that the town of Haughton has received a majority of votes and is the parish seat.

The present action is brought l>y a number of citizens and taxpayers residing in and near the town of Benton, who aver that each of them holds property which will he increased in value to an amount exceeding $2000 in case the parish seat be established at said town. They allege that Benton received a large majority of the votes cast at the election; that the commissioners of elections at certain polling places stuffed the ballot, boxes and made false and fraudulent returns; and that, upon a proper purging of said fraudulent votes and returns, the town of Benton will he found to have been legally chosen as the parish seat and entitled to he so declared.

Their action is brought against the town of Haughton and the president and members of the police jury, and they pray for “judgment decreeing that the town of Benton received a majority of the legal votes cast at said election on November 23, 1888, and in the parish seat of Bossier parish, and farther decreeing" that said police jury proclaim the result of said election, and said president declare the town of Benton to be the parish seat of Bossier parish, pursuant to said judgment; and they further pray that the court examine the facts and decide them according to the law and equity of the case; and for general relief, etc.”

We have quoted this prayer in extenso for the purpose of exhibiting "unmistakably the scope and character of the relief sought, which requires the court to go behind the returns of the commissioners of election ; to recount the votes; to hear evidence , and cast out such votes as it finds to he illegal or to exclude entirely returns which it finds to be false; to tabulate the returns as expurgated by the court.; t :> ascertain and declare the return of the election; and to compel the police jury and its president to make proclamation in accordance with the judgment.

Several exceptions were filed by defendants, of which one lies at the threshohl of the proceeding and must be primarily determined.

This is the exception that the issue presented is not one of judicial cognizance, and that, in the absence of statutory authorization, courts are without jurisdiction ratione materias to entertain a contest of an election.

It is admitted that there is no statutory authority authorizing the courts of this State to entertain jurisdiction of a contest of such an election as the one here concerned. The Legislature has provided for judicial security of elections in certain cases, and the provisions are found in the Revised Statutes, Sections 1417 to 1435. A reference to them will show that they refer exclusively to elections for office and for certain designated offices. They contain nothing which, by any stretch of construction, could be held to cover an election of the character here involved.

As long ago as 1858, this court emphatically laid down the doctrine on this subject in the following language :

The contesting of votes is not a judicial function, only so far as made such by special statutes. Indeed, some have gone so far as to question whether this is not wholly a matter of administration which cannot with propriety be referred to the judicial tribunals at all. At any rate, it is clear that such tribunals cannot usurp any greater control over this business than is specially imposed on them by law. In the absence of a statutory authorization, they are without jurisdiction of the matter ratione materias. The consent of parties cannot give jurisdiction, and all courts, before whom such an unauthorized controversy is brought, must decline, ex officio, to render any order which would recog nize a right to sustain the case.” State vs. Judge, 13 Ann. 89.

During the lapse of more than thirty years since that decision was rendered there has never been a judicial utterance from this court controverting its correctness.

It was expressly affirmed in several cases during the Returning Board régime, the decisions in which operated great injustice and excited severe criticism; but it is significant that, the opposition to those decisions was based on no contradiction of the doctrine of the 13th Annual case. A reference to the able dissenting opinion of Judge Wylie will show that his dissent was based on the ground that the intrusion into office act, under which those suits were brought, did supply express statutory authority for the jurisdiction invoked. Bonner vs. Lynch, 25 Ann. 267; State ex rel. Moncure vs. Dubuclet, 28 Ann. 698.

The present suit is not, and could not have been, brought under the intrusion into office act.

Courts of common law undoubtedly claim an inherent right to entertain jurisdiction over contested elections under proceedings in the nature of a quo warranto; but referring to the provisions of our Code of Practice on that writ, it will be seen that they confine that remedy to “ disputes between parties in relation to offices in corporations,” and expressly declare that “ with regard to offices of a public nature, that is, which are conferred in the name of the State by the Governor, or by election, the usurpations of them are prevented and punished by special laws.” C. P. Art. 868.

This common law jurisdiction is, therefore, expressly excluded by our statute.

It seems well settled that, in absence of express statutory authority, courts of equity will not exercise such jurisdiction.

We feel bound, therefore, to adhere to the jurisprudence of the State maintaining the doctrine of the 13 th Annual case. It is ancient; and it has been, at all times, within the power of the Legislature to extenddo the courts the jurisdiction which they had declined. The fact that the Legislature has not done so, or has extended only a jurisdiction defined and limited, clearly conveys the intention of that department to exclude the courts from any jurisdiction in such matters beyond that expressly granted. Indeed, the assumption of such jurisdiction, in absence of any legislative regulations of method, time and order of procedure, would be fraught with serious consequences.

Reference to the statutes regulating judicial contests of elections, will show the care'with which the Legislature has regulated the time and method of proceeding, securing the utmost promptness and rapidity of action and determination. But if such jurisdiction can be exercised in cases not covered by these statutes, these regulations would have no application. The suits would be governed only by the principles of the general law. There seems no reason why the dissatisfied elector might not bring his action at any time within the term of prescription, and why he might not lie quiet until the parish government had been fully established at the new seat, and even a courthouse built, and then spring his action to upset the election.

It is vain to quote Article 11 of the Constitution of 1879, which guarantees “adequate remedy by due process of law” for all legal rights. A like article existed in the Constitution prevailing when this jurisprudence was established.

Equally vain is the reliance placed on the language of Article 250, requiring that changes of parish seats shall “ be adopted by a majority of votes cast at said election.” A like requirement is clearly implied in every election ordained .by the Constitution, viz: That the officer shall be chosen by a majority of votes over any other candidate; and if this does not authorize judicial inquiry into the question of majority vel non, without statutory authority, in the case of an officer, why should it in the case of the parish seat 9

There is no possible reason or consideration for applying a different rule to elections for parish seats from that applied to elections for officers. Both are matters of purely governmental concern, involving only public and popular rights and conferring no private rights which are susceptible of becoming vested.

The Legislature was charged with the function of ordering this election and regulating the mode in which the votes should be cast and returned and the result ascertained and proclaimed. It has exercised this function and it has not seen fit to authorize any appeal to the courts. If the criminal acts chargéd in this petition have been committed, and the voice of the people has been falsified, it lies in the power of the Legislature, at its very next session, to pass an act removing the parish seat to Benton, and submit such act to the voters of the parish, and no private rights would be legally injured.

We, by no means, disclaim control over officers, charged with specific duties of a ministerial character in connection with elections, to compel them to discharge such duties. This jurisdiction we have claimed and exercised. State ex rel. Patton vs. Judge, 40 Ann. 393; State ex rel. Mayor vs. Judge, 35 Ann. 639.

In the first quoted case we referred to and approved the doctrine of the 13th Annual, saying: “ It is true it has been held by this court that, in the absence of special statutory authorization, courts are without jurisdiction, ratione materia, to entertain cases of contested election. This is a rule widely recognized and generally prevalent, and resting on peculiar principles; but it has never been extended so far as to exempt officers charged with the conduct of elections and with the ascertainment and promulgation of the results thereof from'judicial control to require them to perform the specific duties imposed irpon them by law.”

The court is not asked in this case to compel officers to discharge ministerial duties; it was asked to take from them duties involving discretion, to discharge those duties itself, and to compel them to make formal declaration of its edict.

The judge a quo did not err in declining such jurisdiction.

Judgment affirmed.


author: Watkins, J.

text:
    No. 256.
    J. U. Payne et al. vs. Charles C. Nowell et als.
    1. "When a sale is rescinded, or annulled, for non-payment of the purchase price, by agreement between tlie original parties, whatever its validity may be as to them, the retrocession does not, necessarily, affect third persons.
    2. When the vohmtary retrocession is made to one who is not the original vendor, but merely the transferee of the rights of the vendor, and a more creditor for the unpaid balance of the purchase price, and not subrogated to the right of the vendor to demand the resolution of the sale on account of tlie non-payment of the price, it does not aifeot the rights of other mortgage creditors of the debtor.
    3. Under similar circumstances the transferee of the vendor’s note for the purchase price lias no right of action against the original vendee to compel the retrocession of the land.

      APEAL from the Second District Court, Parish of Bossier. Boone, J.

      ,T. 77. Keyser and J. A. IF. Lowry for Plaintiffs and Appellants.

      Snider c6 Smith for Defendants and Appellees.
   The opinion of tlie Court was delivered by

Watkins, J.

On tlie 20th of March, 1878, one E. F. Connell conveyed a large tract of land situated in the parish of Bossier, to one C. C. Nowell, for the price of $4070, on a credit, and for which sum the purchaser executed one note, due and payable to the order of his vendor, on the 1st of November thereafter.

The act of sale was duly recorded in the proper book of oonvojmhces and mortgages, on the day after its execution.

This note was subsequently negotiated to Payne, Kennedy & Co., of New Orleans, and, it having only been partially paid, they brought an ordinary action for the purpose of obtaining a personal judgment against Nowell, and tlie foreclosure of their vendor’s lion and mortgage on the land.

During the pendency of this suit, the debtor, Nowell, on the 10th of December, 1881, executed to, and in favor of the plaintiffs, an act of dation enpaiement in fall and complete satisfaction of the note, interest, and cost; and the plaintiffs surrendered to Nowell the note.

On the lltli of February, 1887, Payne, Kennedy & Co. conveyed the same land to the State National Bank of New Orleans; and on the 80th of December following, the bank made a reconveyance of the land to Payne, Kennedy & Co., simply reinstating their title, as it was at the date it was executed to the bank.

Oil tlie 2nd of February, 1888, this suit was instituted, and has for object the rescission -and avoidance of the elation on peviemenb from Nowell to plaintiffs, on the ground that the latter had breached his contract of full warranty against all mortgages encumbering the land sold. This breach of warranty is alleged to be, that, without petitioners’ knowledge, Win. E. Hamilton and Wm. B. Hamilton caused to be inscribed on tlie mortgage records of Bossier parish, on the 24th of September, 1878, the copy of a judgment in their favor and against said Nowell, for the sum of $2102 67; and-that said mortgage was inscribed at the time of the execution of said elation to them. That, recently, said Hamiltous instituted an bypotliecary action against the State National Bank — whilst it was owner of the property — for the recognition and enforcement of their judicial mortgage against the property in its hands; and that, notwithstanding the resistance of tlie bank thereto, a final judgment and decree of this court, affirmed tlie bindiug force and effect of said judicial mortgage against the land in its possession, and decreed same to be surrendered by the bank for sale, or that it should pay tlie Hamilton judgment.

In this position of affairs the bank executed its re-conveyauce of the land to the plaintiffs, and therefor they .make this demand of Nowell.

Tt is further alleged that the Hamiltous are about to. execute their judgment against the property, and, upon appropriate averments, plaintiffs obtained an injunction against it. The prayer of tlieir petition is, that the seizure and sale qf the land be restrained; that the conveyance of the land from Nowell to them be rescinded, the property declared to be that of Nowell, their note of $4070 revived, and their vendor’s lien and privilege recognized as still bearing upon, and attaching to the property.

Disencumbered of the verbiage of statement, plaintiffs’ theory and claim are that, on account of Nowell’s alleged violation of his contract of warranty with them, in failing to disclose the existence of the Hamilton mortgage on Ms land, at the time of sale, they, as the transferees of his purchase note to Connell, the original vendor, are entitled to have Nowell’s conveyance to them rescinded and the property restored to him, and their note revived, and the vendor’s lien securing it recognized as attaching to the land.

The effect of such a decree, if rendered, would be to restore them to the same' condition they occupied on the 10th of December, 1881, when their suit against Nowell was compromised and their note surrendered.

The Hamiltous, in their answer, aver the existence, registry and reiuseription of their judicial mortgage, as taking effect oil the 24th of September, 1878, and as still existing thereon. They aver that tli° plaintiffs have no mortgage, or lien on said property, and no debt against Nowell, and their injunction against their sale was unlawfully and improvidently obtained, and that they are entitled to statutory _ and special damages against them and the security on their injunction bond.

The defendant, Nowell, avers that the purchase note and mortgage described and asserted by the plaintiffs were fully and absolutely novated, and extinguised by the dation en paienieiht to them of December 10, 1881, and said note was delivered to him and canceled. He further avers the existence of the Hamilton mortgage, and plaintiffs’, as well as his own, full knowledge of it at the time of the sale. All the defendants unite in pleading the prescription of five years against the note to Connell, and the peremption of the mortgage and vendor’s lien, by reason of the lapse of more than ten years, without any reinscription thereof, in the same manner in which the inscription was first made. They also plead against the action itself, the prescription of one, five and ten years. Upon these issues there was judgment in the court a qua in favor of the defendants, and the plaintiffs liave appealed. In this court the appellees have filed an answer to the appeal and requested an increase in the judgment for damages.

This historical sketch of the facts of this complicated transaction was deemed the best method of convoying a clear and concise idea of the issues involved, and, for convenience, we have interwoven therewith the pleadings and pleas of the parties.

In our opinion in the case of Hamilton vs. State National Bank, 39 Ann. 932, many of the questions and transactions agitated here, were examined; and the decree therein rendered, affected the title to the land, while in the ownership and possession of the bank, which was, at the time, plaintiffs’ vendee, and subsequently their vendor; and, hence, they are likewise, necessarily affected thereby.

The court say:

“ The question presented simply is, whether the mortgage resulting from the registry of plaintiffs’ judgment against Nowell has continued to attach to the land, notwithstanding the transfer of it by Nowell to Payne?”

They say that “it is clear that had not Connell transfered the note, and had he not been paid the same, he could have brought a suit to annul the sale, and that the property would have returned to him free from the judicial mortgage in favor of the plaintiffs. * * * But the fact is, that Connell did not, at the same time, confer on Payne the right to demand tlie nullity of the sale in ease of non-payment of the price. The transfer of the property by Nowell to Payne must not, therefore, be received as though made to Connell. 38 Ann. 582.

“ It consequently follows that the proi>erty has not passed free from, the judicial mortgage, but that it was conveyed cum onere. It has been held — and properly, too — that, even where a sale is annulled by agreement between the original parties, whatever its validity may be as' to them, the retrocession does not, necessarily, affect third persons. * *

“Under the circumstances of this case, it is manifest that, a fortiori, the voluntary transfer does not affect su'cli third persons, as it was made not to the orginal vendor, but to one who was only a creditor for the unpaid price of sale, and who had not been subrogated to the right of the vendor to demand the nullity of the sale on account of the non-payment of the price; and the less so as, in this instance, suit had been brought pending which the debtor transfered the land in consideration, of the return of the note. In Castle vs. Floyd, 38 Ann. 583, this court held that the. right to have the sale rescinded owing to the non-payment of the notes representing the purchase price did not pass with the note without special agreement to that effect.”

For these reasons the court concluded that the Hamilton mortgage still lived and attached to the property.

Following these reasons and conclusions to their legitimate end — and they are strictly applicable to the plaintiffs, still — they would seem to answer their demands against Nowell and Hamilton in this sirit, as well.

For, if, at the time, and under the circumstances given by the court in that case, the Hamilton mortgage was recognized as having full force and effect against the property, because Nowell, the debtor, and plaintiffs as transferees of the vendor’s note, could not, by their own convention, and without resorting to judicial proceedings, make a conveyance which would defeat its effect, do they not now occupy the same situation in respect to Nowell, as they did then in respect to the Hamiltons ?

We take that to be perfectly clear. Fretermitting any expression of opinion as to the right of a vendee to sue for the resolution, or rescission of a sale — which is more than doubtful — it is perfectly clear that, under the facts detailed, the plaintiffs cannot recover against the defendants in this action. In this view of the law, it is unnecessary to pass upon'the various pleas of prescription which have been urged.

The plaintiffs’ injunction was correctly dissolved by the judge a quo, and the Ilamiltons must he allowed to proceed with the execution of their judgment, unless the plaintiffs elect to discharge it.

The demands of the defendants for an amendment of tlie judgment in their favor, so as to allow them 10 and 20 per cent, statutory damages on tlie amount of the judgment enjoined cannot he granted, because plaintiffs are not the judgment debtors of the Ilamiltons, hut third persons. In such case the defendants must he relegated to an action on the plaintiffs’ injunction bonds.

Judgment affirmed.

Mr. Justice Fenner recuses himself on account of relationship to one of the plaintiffs.


author: McEnery, J. Poché, J.

text:
    No. 253.
    James N. Platt vs. R. E. Wyche, Sheriff, et als.

      A tutor of a minor qualified in 1877, and tiled his account in 1889, showing an indebteduoss to the minor; the account was homologated and judgment rendered thereon. Execution issued on the judgment, which was enjoined by the tutor, who claimed a homestead exemption under Act 33 of 18G5. Held that the law governing the case was the homestead law provided for in the Constitution of 387!).
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.

      J. A. Sneider for Plaintiff and Appellee:
    On Motion to Dismiss.
    A surety on an injunction bond is. on the trial, a party plaintiff to the suit. O. Ik 304.
    Tlie surety on an injunction bond is a necessary party to an appeal, and when tbe appeal is taken by petition lie must be oiled. Avogno vs. Jolmson, 22 Ann. 400.
    Wlien the appeal is taken by petition and there is no prayer for citation on the surety on injunction bond, the fault is attributable solely to appellant. Jlov. fttat., Sec. 3G ; Gerodias vs. Handy, 31 Ann. 334.
    On this Merits.
    In an injunction suit there are two demands — the principal demand and the conservatory process of injunction, and the latter may he dismissed without carrying with it the former. Knox vs. Coroner et al., 13 Ann. 88.
    If the injunction bond should be sufficiently identified with the petition and order of the judge in the case, an error in name of the payee will not be fatal. C. O. 1702.
    An injunction bond payable to the (dork oj tlie court and his assigns, is sufficient to make th e surety thereon liable to real parties in interest. V. fe. and Texas It. It. vs. Barkesdales. 15 Ann. 465.
    In an injunction suit a supplemental petition maybe allowed for the* promotion of justice. Maillot vs. Martin, 15 Ann. 40.
    Injunctions will not be dissolved if there be good cause for one on the facie of the record. Ward vs. Douglass, 22 Ann. 464, Bank vs. Crooks & Maristany, 21 Ann. 324 ; Lewis & Gist vs. Daniels, sheriff, 23 Aun. 171; Dupre vs. Swafford, 25 Ann. 222; Chamhlis vs. Atchiusou, 2 Ann 491.
    An injunction will not be dismissed if the record shows that plaintiff would be entitled immediately to same remedy. Lafleur vs. Monten, 8 Ann. 489; Woodward vs. Dashiel, 15 La. 181; Woolfork vs. Woolfork. 22 Ann. 207; Chamhlis vs. Atchinson, 2 Ann. 493; Exnecios vs. Weiss, 3 hT. S. 610.
    Additional security may be permitted to be given in an injunction suit. Woolfork vs. Woolforlc. 22 Ann. 207.
    The legal obligation of a tutor is evinced by his bond as such.
    Rights to homestead or exemptions existing prior to Constitution of 1879 are not impaired, repealed or affected by any provision of tliat instrument. Const., Art. 220; Gilmer vs. O'hieal, 32 Ann. 982: Pool vs. Cook et als., 34 Ann. 332; Thomas vs. Guilbeau, 35 Ann. 929; Gamier vs. ¡Sheriff otal., 39 Ann. 886.
    The exception as to fiduciaries is not numbered among those in Act 33 of 1865, extra session.
    If tlie right asserted be legal and the sole defect in the injunction bond is manifestly an oversight or mistake, there can be no malice or want of probable cause in obtaining the writ, and defendant’s claim for damages will be rejected. Slaughterhouse Co. vs. Howell, 37 Ann. 284; Maroott vs. Messick; Maunmg’s U. C., 88-42; Carroll vs. Reidheimer, 35 Ann. 375: Davis vs. Millaudon, 14 Ann. 809; Eorbes vs. Geddes, 6 Ann. 402; Moraucy vs. Clarke et al.. 6 Aim. 178.
    Plaintiff in a suit enjoining the sale of his homestead may recover such damages as ho has suffered. White vs. Givens, 29 Ann. 571.

      J. A. Lowry, John K. Phipps and John Young for Defendant and Appellant:
    3.The law regards the interest of minors with parental solicitude; and its provisions for their protection will he strictly enforced. Bernard vs. Yigneaud, 1 iST. S. 62; 31 Aim. 31, Succession of Elliott.
    2. A party cannot make his own turpitude the basis of a claim in a court of justice. ‘‘A# turpi cama, non oritur actio ”

    A party should not be hoard with favor in any court of justice, who invokes the aid of the law to relieve himself from the consequences of his voluntary and criminal violation of its provisions. 2 Hen., 1007 A., 1ST. 1.
    3. Homestead exemption laws being in derogation of com.non right must be strictly construed and the party asserting a homestead must bring himself clearly within the purview of the law granting it. Tilton vs. Yigers. 33 Ann. 240 ; 28 Ann. 067; 21 Aim. 680 ; Gallager vs. Payne, 34 Ann. 1057; Bossier vs. Sheriff, 37 Ann. 203 ; Kerr vs. Sheriff et al., 38 Ann. 713.
    4. A dative tutor, charged l>y order of the court with the administration of the minor’s property, is to all intents and purposes, the agent of his ward, and as such is governed by the laws which regulate the relation of agent and principal. Story on Agency, Section 3, and also Sections 9 and 10, Wharton's Commentaries on Agency, Section 10.
    5. The relation of principal and agent does not create the relation of creditor and debtor. So long as the agency continues, the property or funds in the hands of the agent belongs to the principal, the agent being a mere trustee. 10 R. 401; 6 Ann. 40.
    6. The relation of a tutor to libs minor is one of confidence and trust, and lilco all other agentcíes is fiduciary in its nature. And the fiduciary character is the legitimate and necessary result of the relation of principal and agent existing between the minor and tulor, and can derive its origin and existence from no other source.

      I. The debt on which the execution, enjoined, issued, did not accrue until October 31, 1888, after the account of J. N. Platt, tutor to Mary R. Platt, had been filed and the amount still in the hands of her tutor had been fixed, by tbo judgment homologating the account, and plaintiff’s refusal or neglect to deliver over to his ward the funds in his hands belonging to her.” 37 Ann. 410; 6 Ann. 40; 10 R., 481.
    8. The homestead exemption provided in the Constitution of 1879, Articles 219 and 220, docs not apply to a judgment rendered against a party for money misappropriated by an agent, Bridwell vs. Iiolliday, 37 Aim. 410.
    9. Jib homestead exemptions for a debt accruing since the promulgation of Act No. 14 of 3880, entitled an Act to carry into effect Articles 219 and 220 of the Constitution of 1879, can ho maintained, unless the homestead claim relied on has been previously set apart and registered in conformity to the provisions of Act 14 of 3880. Kinder vs. Sheriff et al., 38 Ann. 713.
    10. A party entitled to a homestead exeniption, under the homestead exemption legislation of 1865, who voluntarily accepts an appointment from judicial authority and for the faithful discharge of which he executes a judicial bond in compliance with law, and to which the law, as he well knows, attaches a legal mortgage on all libs immovable property as a securi ty against any future and contingent liability which may result from a misappropriation of effects committed to bis care, thereby voluntarily waives and renounces hi? homestead exemption as to any amount which a final settlement shows are still in his hands and which he refuses to deliver over.
    II. A party who abuses the equitable remedy by injunction to arrest the execution of a monied judgment should be mulcted in damages. Lambeth vs. .Stuart, 38 Ann. 693 ; C. L\ 304; Bridwell vs. Iíalliday, 37 Ann. 410.
   On Motion to Dismiss.

The opinion of the Court was delivered by

McEnery, J.

Plaintiff has filed a motion to dismiss the appeal on the ground that the sureties on the injunction bond have not been made parties to the appeal.

The case was taken up, evidenced, adduced and arguments made.

The sureties were properly'before the court.

The following agreement was entered into by counsel, as appears by the minutes of the court:

“Judgment to be rendered in Chambers by consent and appealed therefrom, as in open court-”

In pursuance of this agreement defendants applied for and obtained an order of appeal. On the order thus granted the following acknowledgment and waiver of citation of appeal was made: “ Service of citation in above acknowledged and all copies waived ” — and signed by the attorney for plaintiff and appellees.

The formal agreement entered upon' the minutes of the court and the legal waiver of citation by the attorney for plaintiff rendered the, service of citation upon the sureties unnecessary.

The motion to dismiss the appeal is, therefore, overruled.

On the Merits.

Jamos V. Platt, in 1877, qualified as tutor of his sister, Mary R. Platt.

She married Rufus E. Taylor, and, on August 14, 1838, filed a rule on her tutor, James H. Platt, to compel him to filei an account of his tutorship.

He acknowledged, in the account which he filed under the order of court, an indebtedness to her of $3,781 10.

On October 31, 1883, in open court, Mary R. Platt, wife of R. F. Taylor, filed a written consent to the homologation of the account, and judgment was rendered accordingly.

Under this judgment an execution issued, and all the property of the tutor, Platt, was seized and sold, except sixty-seven acres of land, the sale of which he enjoined and claimed as a homestead under the provisions of the homestead Act of 1865.

It is conceded that the land seized is rural and is occupied and cultivated as a farm by the plaintiff who has a wife and minor children depending upon him for support, and who are without any means of their own.

It will be unneessary to notice the several exceptions as to the two suits, which wore filed and the consolidation of which were refused, and the filing of the suit last filed as a supplementary answer, which was allowed, and the alleged irregularities in the injunction bonds, as those matters appear to be waived by the defendants.

Defendants moved to dissolve the injunction on the ground of the alleged defects in the injunction bond, and because the petition disclosed no cause of action, and prayed for judgment for 10 per cent interest on the amount of the judgment enjoined, and for $150 special damages as attorney’s fees and 20 per cent general damages, and for judgment in solido against the surety on the injunction bond for $150.

The question to be determined in this case is whether the Act 33 of 1865, or the homestead exemption provided'in the Constitution of 1879, by Art. 220, governs the'exemption claimed.

The plaintiff’s contention is that whatever debt the tutor owes his ward originated in 1877, when he qualified as tutor, and furnished the required bond in 1877, and again on the death of the surety, in 1879; that the sum due by plaintiff was contracted prior to the Constitutional provision of 1879, but the amount was determined in the filing of his account, in 1888; that the legal obligation is in the bonds executed by him.

There can be no contract between a tutor and his ward. The relaUm of tutor and ward is one of confidence and trust, independent of the minor, ancl the obligation is created by law. The tutor, in a certain sense, is a public officer, an official of the court, and his obligation is to faithfully perform his duties as specified by law, until there is a judicial termination of his trust. The oath which he tabes acts upon his conscience, 1ns moral sense and the bond is given to indemnify against any abuse of his trust. Both obligations were through the entire period of his trust, and at no time is there created between him and the minor the ordinary relations of debtor and creditor. His fiduciary character is the result of the law, and he is the custodian of the fund and property of the minor until ordered to deliver them to the minor when emancipated or when he has attained his majority.

There is no debt due the minor until the expiration of the tutorship, as it is only at this time that the tutor can be compelled to pay over the amounts due the minor which ho has in his possession.

In the instant case the amount due the defendant was only ascertained and fixed in 1888, when the plaintiff filed his account showing what amount was due the minor. The obligation to pay the amount only, then existed, as the tutor had never filed any previous account.

The indebtedness to the minor, while it may have existed prior to 1879, did not spring from any contract with the minor, but from an obligation which was imposed by law which required the tutor to faithfully administer his property.

There was no contract, either express or implied made by the tutor with the minor to pay this indebtedness to him. It was an obligation, the result of the law which required the tutor to pay over the amount in his hands to the minor at the expiration of the tutorship. His obligation did not spring into existence until October 31, 1888, when a judgment was rendered against him.

It is admitted that the homestead claimed had not been previously set apart and registered in conformity to Act 14 of 1830, enacted to carry into effect Articles 219, 220 of the Constitution of 1879, and as the debt was incurred in a fiduciary capacity, we are of the opinion that the homestead exemption created by the Constitution of 187S) does not apply to this case.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and set aside, and that there be judgment in favor of the defendant, Mary R. Platt, -wife of Rufus F. Taylor, dissolving the injunction herein issued, rejecting Plaintiff Platt’s claim of homestead and dismissing his action at his cost in both courts.

And it is further ordered, adjudged and decreed that said Janies N. Platt and the surety on the injunction bond herein be condemned jointly and in solido to pay interests of 10 per cent per annum on the amount of the judgment enjoined and in the further sum of $50, as special damages for attorney’s fees.

On Application por Rehearing.

Poché, J.

In this application, and for the first time, plaintiff and his s-rety on the injunction bond make the point, that damages are not contemplated in the Code of Practice as applicable to in injunction which restricts the execution of the judgment only in so far as certain specified property claimed as a homestead, is concerned, and by which the integrity or legal effect of the judgment is not involved.

They also make the point that the writ of injunction was not abused.

Under the peculiar circumstances of this case, in which a novel question touching the application of the homestead law of 1865, as affected by subsequent constitutional provisions, was presented for solution, we are impressed with the force of the complaint. In allowing the statutory damages prayed for^ by plaintiff in execution we bad followed a judicial precedent, but on inspection wo find tliat in the case referred to the question now submitted had not been raised. Bridewell vs. Halliday, 37 Ann. —

We shall, therefore, amend our previous decree in this particular, and relegate plaintiff in execution to a separate action on the injunction "bond.

It is, therefore, ordered that our previous decree herein rendered be amended so as to strike therefrom the statutory damages therein allowed, reserving the right of plaintiff in execution to institute a separate action on the injunction, and it is further ordered that our decree as thus amended remain undisturbed.

Roheiiriug refused.


text:
    No. 265.
    J. Bailey Peyton vs. Texas and Pacific Railway Company.
    It is negligence on the part of a railroad company, in miming* accommodation trains through a c-ity to a fair grounds in the suburbs, where large numbers of people congregate around the station, to nse an inferior locomotive, run by a fireman instead of a skilled engineer, and to run its trains at a dangerous speed in approaching the station.
    It is not contributory negligence in a person to risk 1ns life or place himself in a position of great danger, in an effort to save the life of another or to rescue another from a sudden peril or great bodily harm.
    “ The law has so great a regard for human life that it will not impute negligence to an effort to proserve it, unless mado under such circumstances as to constitute rashness in the judgment of prudent persons.”
    The allowance of excessive damages by juries for personal injuries must be discountenanced.

      APPEAL from the First District Court, Parish of Caddo. moles, J.
    , M. 8. Jones, M. O. fflstner and Hell and Randolph for Plaintiff and Appellee:
    1. The law lias so great a regard for human life that it will not impute negligence to an effort to preserve it, if the effort'is made with a reasonable regal’d for the rescuer's own safety. Eckert vs. Dong’ Island R. Co.. 3 Am. 721; Donahue vs. Wabash and St. L. Pac. R. Oí)., 53 Ann. 594; Beach on Contributory Nogligonce, p. 45, sec. 35; Thompson on Negligence, vol. 2, p. 1174, Sec. 21; Pierce on Railroads, p. 328 ; Rorer on Railroads, p. 3Ü29.
    2. Where negligence on the part of defendant is shown, the negligence of the person in danger cannot bo imputed to tlio rescuer. ¡See authorities above.
    3. when wilful negligence on the pari of defendant is established, the quostion of contributory negligence cannot arise?. Tlie defendant is liable absolutely. Rorer on Railroads, p. 872; 17 Am. 12; 13attisliill vs. Humphreys 38 N. W., 581-586; Barksdull vs. N. O. N. O. & O. Iiy. Co., 23 Ann. 180-382; Paren vs. Kellers & Oo.,v39 Ann. 3031.
    4. Where the verdict of the jury is not manifestly erroneous, it will not be disturbed. Iu the assessment of damages the parties are entitled to the judgment of the jury, and not of the court. Thompson on Negligence, Vol. 2. p. 12(56 : 37 Ann. 92, 94, 219, 226, 230 ; 37 Aim. 655.
    5. Courts will not sot aside verdict on the ground that damages are excessive or inadequate unless it is apparent that the jury acted under some bias, prejudice, or improper influence ; mere difference of judgment is not sufficient.
    (5. Where the verdict is expressly approved by the trial judge, it carries great weight an should not bo disturbed. 39 Ann. 929.

      Wise de-Hem don for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

Plaintiff claims damages in the sum of $40,000 for personal injuries inflicted on him by one of the defendant’s trains, through the alleged carelessness and fault of the railroad employes.

The defense is a general denial, coupled with the plea of contributory negligence.

Defendant appeals from a verdict and judgment- in the sum of $25,000.

The evidence is conflicting on all the pertinent and material facts involved in the controversy.

After a thorough study of the record we find, from the preponderance of the testimony, the following substantial facts as bearing- on the issues of negligence on the part of the company, and of contributory negligence on the part of plaintiff:

The accident occurred in November, 1888, at or near the Fair Grounds situated on the outskirts of the City of Shreveport, while a fair was being lield there. During the week of the fair, the company ran accommodation trains from its depot in. the city to tlie grounds and back on a schedule of fifteen minutes each way.

While plaintiff and a large number of other visitors at the fair were standing on a temporary platform erected near the grounds, awaiting an outgoing train on which they intended to return to the city, he noticed on the track, and in dangerous proximity to the approaching train, a. person, who was a friend of liis, and who was in an inebriate condition, standing with his back to the train, and apparently unconscious of threatened peril. He at once resolved to save his friend, and running to him he succeeded in pushing him off the track, but was himself struck by the pilot beam of the locomotive to which the train was attached; and received injuries from which he suffered great pains, was disabled for several months, and from which ho was not yet relieved at tlie time the case was tried below, at the end of the past month.

We are satisfied from the preponderance of the testimony, which is very conflicting on this point, that in approaching that platform, full of people of all ages, which was the regular fair grounds station for the defendant’s accommodation trains, situated at the intersection of a public thoroughfare, the train was driven with unusual speed and at a dangerous, rate, without which the accident would not have occurred. It is also in proof that the locomotive used on the occasion was a switch engine, not such as should be used to carry great numbers of passengers, and that it was in the charge of a fireman, not a regular or competent engineer, who was at that moment performing tlie tlie functions of the regular engineer, the latter having absented himself in order to go to his evening' meal.

All these circumstances combine together to make a clear case of negligence against the company.

Tlie question of contributory negligence must now be met.

The argument on that point is that plaintiff brought on the accident himself by his reckless attempt to jump on a railroad track immediately in front of an approaching train, at a close and dangerous distance from it.

Plaintiff testifies, and lie is corroborated by several unimpeaclied eyewitness, that without his, or other prompt assistance, the intoxicated man on the track would have been run over and probably killed.

Plaintiff, who was a strong and vigorous man of more than ordinary strength, states that from tlie appearance of tilings, lie believed that lie could save the man and avoid injury liimself.

Similar positions and circumstances have several times been presented to judicial investigation, as involving tlie question of negligence, and have been variously construed. But the opinion which commends itself to our approbation, as resting on sound principles of humanity, is to the eifect that they do not constitute, contributory negligence on the part of the person who is injured in the attempt. Text writers on railroad law and kindred subjects have formulated the rule thus :

“When one risks his life or places himself in a position of great-danger, in an effort to save the life of another, or to protect another who is exposed to a sudden peril, or in danger of great bodily harm, it is held that such exposure and risk for such a purpose is not negligent. 'Phe law lias so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.”

The principle was culled from a well considered opinion of the Court of Appeals of New York in the ease of Eckert vs. Long Island R. R. Co., reported in 43 N. Y. 503; Beach on Contributory Negligence, p. 45; Thompson on Negligence, vol. 2, p. 1174; Pierce on Railroads, p. 328; Rorer on Railroads, p. 1209.

The ruling has received subsequent judicial sanction, and appreciating it as rational and as tending to foster a proper spirit of generous impulses towards persons who are in danger, we add our indorsement to that of other courts of last resort in other States of the American Union.

The evidence is satisfactory on the point that the attempt of plaintiff to save the life of a human being, or at least to rescue him from imminent peril, can not he characterized as rash or reckless in the judgment of prudent men, and that his venture would have been successful and harmless if the train had not approached the station with reprehensible speed.

We now approach tlie question of the quantum of damages which plaintiff should recover in the ease. In view of the finding of the jury, which met with the approval of the district judge in his refusal of a new trial, the solution of that question, to our satisfaction, under our desire and our duty to do even-handed justice to both litigants, has not been free of difficulty, and lienee it has cost us much thought and study.

As we have had occasion to say in several cases: “ While we do not pretend to lay down any exact arithmetical rule of proportion in the estimate of damages, yet they must hear some kind of reasonable relation to each other in different cases — with the reserve, however, that damages should always he substantial!” Towns vs. R. R., 37 Ann. 636.

A review of our reports in similar eases points to only two occasions on which this court has allowed damages in excess of $10,0(10 for personal injuries, and these were for very grievous a'nd permanent results: Barksdale’s case, 23 Ann. 180; Chapin’s case, 17 Ann. 19.

Among other cases we find an allowance of $7000 for an accident resulting in the death of the head of a large family, to whom he was the only support; another allowance of $5000 for the death of a man similarly situated, and, in another case, a judgment of $3000 for a like result. Curley’s case, 40 Ann. 810; Feran vs. Sellers, 39 Ann. 1011; Clairain vs. Telegraph Co., 40 Ann. 178.

And in as far as our observation lias gone, we find that tlie courts of other States of the Union have not reached as high figures as this court lias allowed.

Substantial damages must be awarded in proper cases, but by all means speculative litigation must be discouraged and possibly checked.

Now, in tlie present case, we have no hesitation in saying that tho verdict is largely excessive, and beyond,all measure and all precedents.

That tho plaintiff was seriously injured, that he suffered great pain; was exposed to loss of time, loss of business and to large expenses for medical assistance caimot be denied, and evidence to that effect is uncontradicted; but it is equally true that lie lias rapidly improved under medical treatment; that for months he has-been able to walk, go about and attend to business, without the use of crutches, and without the need of assistance; and above all that he is yet alive, fully able to earn bis livelihood and well disposed to enjoy life.

His most serious injury, and tlie most irritating cause of liis sufferings is the inflammation in bis hip-joint. But competent physicians, some of whom have rendered him professional services, and others, who have critically examined him, all testify that with proper treatment, prudent care and attention he can be radically cured.

Great reliance is placed by bis counsel, as a fruitful source of damages, on the fact that he is how afflicted with Hernia, characterized by symptoms of threatening strangulation, which they confidently attribute to the railroad accident. Plaintiff himself testifies that it is a result of the blow which he then and there received. But of course his testimony is not that of an expert, and none of tlie physicians who were examined testify directly in the same sense. One of them says: It (Hernia) is frequently the result of direct violence, but I can’t say as to this.” True plaintiff says that one of the physicians who attended to him at his home for several days saw Ills hernia and pronounced it very serious mid perhaps dangerous. But this is merely hearsay, and a strange co-incidence must be noted in this connection: the failure of plaintiff to take the testimony of' that physician and of another physician of his neighborhood, who rendered the first medical aid which he received after the accident.

Nothing in the nature of this case or in the surrounding circumstances can legally screen this party from the effect of the rule which jurisprudence applies to litigants who fail to produce important testimony easily within their reach, and presumably under their control. Ketchum vs. R. R., 38 Ann. 779; Day vs. R. R., 35 Ann. 694.

We arc constrained to notice another circumstance which goes a great way to negative the assertion that hernia was one of the results of the accident. Nearly three weeks after he had been injured, plaintiff was placed, on the recommendation of bis home physicians, under the treatment of Dr. M. M. Bannerman, of Grand Cane, La., as a surgeon of superior ability, who then took him and had him under his charge for more than a month, including three weeks during which he was under the doctor’s own roof, receiving his daily and almost constant attentions of the most intimate character. And yet in his testimony Dr. Banner-man does not make a single reference to hernia in connection with his patient. Par from it, his testimony contains the following very significant statement: “ Plaintiff, during my treatment, complained of no other injury resulting from the railroad accident, except that in his hip-joint.”

It is in proof, and plaintiff himself testifies that many years ago he was ruptured on the right side, and it is shown that he is now ruptured on both sides, but tbe evidence entirely fails to trace tlie second rupture to the railroad accident.

That element of damages must therefore be eliminated from the case.

And we therefore conclude that an allowance of $5000 is amply sufficient to compensate plaintiff for all the pains that he has suffered, the loss of business and of time that he has incurred, to meet the expenses of past medical attendance, and to secure the future treatment and attention needed to fully restore him from the effects of the injuries which, he received. To allow more, would be enriching one litigant at the expense of the other.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended bj reducing tlie amount of damages to be recovered by plaintiff from twenty-five to five thousand dollars, and that, as thus amended, said judgment he affirmed, and that costs of appeal be taxed to plaintiff.