text:
    No. 13,325
    Orleans
    FOSSIER v. KNIGHT MOTORS CO., INC.
    (March 24, 1930. Opinion and Decree.)
    McGiehan, Strauch & Gardiner, of New Orleans, attorneys for plaintiff, appellee.
    Monroe & Lemann, and Nicholas Callan, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

The principal issue involved here is one of fact: Was a written contract of employment subsequently modified by oral agreement of the parties?

Together with this issue of fact, we find that we are again asked to consider a well-settled question of law: May parties introduce evidence for the purpose of showing a subsequent verbal abrogation or modification of a written contract?

This latter question, we thought, had been definitely answered, and we are therefore somewhat surprised to see it again seriously submitted for determination.

So far as the question of law is concerned, we are unable to add anything to what we said in Harvey vs. Mouncou, 3 La. App. 231, in the syllabus of which we find the following:

“Parol evidence cannot be admitted to vary the terms of a written contract, but a subsequent oral agreement altering, waiving, discharging or otherwise novating a prior transaction cannot be excluded because of the prior transaction having been reduced to writing.”

To the end that the authorities on which the decision in that case was based may again be brought to the attention of those members of the bar who are interested, we will once more list them.

In Wigmore, vol. 5, verbo “Parole Evidence Rule,” p. 330, is found:

“In particular any subsequent agreement waiving, discharging or otherwise novating a prior transaction is not excluded by reason of the prior transaction having been reduced to writing.”

In this state the rule has been firmly established as a result of the following decisions: Page vs. Nicholson & Co., 27 La. Ann. 116; Monarch vs. Board of Commissioners of McDonogh School Fund of City of N. O., 49 La. Ann. 991, 22 So. 259; Crook vs. Tensas Basin Levee District, 51 La. Ann. 286, 25 So. 88; Brink vs. Bartlett, 105 La. 336, 29 So. 958; Wellman vs. Smith, 114 La. 230, 38 So. 151; Selby vs. City of New Orleans, 119 La. 900, 44 So. 722; Queensborough Land Co. vs. Cazeaux, 136 La. 724, 67 So. 641, L. R. A. 1916B, 1201, Ann. Cas. 1916D, 1248; O’Leary vs. Board of Port Commissioners, Port of N. O., 150 La. 649, 91 So. 139.

That the doctrine is well recognized in the federal courts and in the courts of the other states of the Union becomes apparent from a perusal of the decisions of those courts. As illustrative, we cite those decisions from which, in Harvey vs. Mouncou, we quoted: James Reilly Repair & Supply Co. vs. Smith (C. C. A.) 177 F. 168; Theis vs. Svoboda, 166 Ill. App. 20; McGowan vs. Gate City Malt Co., 89 Neb. 10, 130 N. W. 965; Derrico vs. Muller (Sup.) 142 N. Y. S. 479; Pierce vs. Powers, 180 Ill. App. 687; Becker vs. Becker, 250 Ill. 117, 95 N. E. 70, Ann. Cas. 1912B, 275.

Since oral evidence is admissible to show subsequent oral modification or abrogation of a written contract, the question we are now called on to determine is whether or not, in the case before us, the preponderance of the evidence sustains the claim of defendant that there was such an oral modification.

Knight Motors Company, Inc., was a corporation owned entirely by John Stewart, Sr., hut managed for Stewart by W. D. Rollins, Jr., as president and general manager. Rollins’ authority was limited, and he testified that he had no right to bind the company without the full authority of Stewart. Theodore Fossier, Jr., plaintiff, a man of considerable experience in the sale of automobiles, was engaged by Knight Motors Company, Inc., under a written contract reading as follows:

“New Orleans, La., Sept. 30, 1927.
“Agreement entered into between Knight Motors Company, Inc., hereinafter designated as the party of the first part, and Theo. Fossier, Jr., hereinafter designated as the party of the second part, whereby the party of the first part agrees to pay to the party of the second part a salary of $350.00 (Three Hundred Fifty Dollars) a month, payable $175.00 on the fifteenth and $175.00 on the first of each month, and a flat commission of 3 (three) per cent on the net volume of sales; this net volume to be computed at the end of each month. In consideration whereof, the party of the second part agrees to devote his time and efforts exclusively to the sale of the automobiles merchandised by the party of the first part, and to furnish his own transportation in the prosecution of this sales work.
“This agreement becomes operative on October 3, 1927, and is to be binding and effective for a period of 180 (one hundred eighty) days from said date of October 3, 1927.
“Intention on the part of either of the parties to this agreement not to renew same after date of expiration, as above set forth, shall be stated in writing at least 10 (ten) days before expiration date.”
Signed: “Knight Motors Company, Inc., by W. D. Rollins, Jr., President and General Manager. Theo. Fossier, Jr. Witness: R. P. Bernard.”

During the original term of the contract, the specified salary was regularly paid and, at the end of each month, Fossier, in addition to his salary, called for and received the amounts due him as commissions on sales consummated by him. In fairness to plaintiff, it is proper to state that he at no time claimed that he was entitled to commissions on all sales made by the company, but conceded that the intention of the parties in this regard was that he should receive commissions on such sales only as were effected by him.

After the expiration of the original term of the contract, and during the subsequent reconductions thereof, Fossier continued to draw his regular monthly amount, to-wit, $350, one-half on the first of the month and one-half on the fifteenth, but did not continue to call for, nor to receive, any amounts representing commissions on sales.

This condition continued until some time near the end of January, 1929, at which time Fossier was notified, first orally and then in writing, that his services were no longer required.

Thereupon Fossier brought this suit, which has for its object the collection of salary from the time of his discharge, on January 21, 1929, to March 26, 1929, and of the commissions to which he claims he is entitled at 3 per cent on the sales, and which commissions, it is conceded, he has not been paid.

Defendant contends that the original contract was modified by mutual consent as of March 30, 1928, or thereabout, and that from the time of the modification it was understood that Fossier would no longer 'receive commissions on sales, nor a salary of $350 each month, but, instead, would be entitled to' 20 per cent of the net profits of the concern and would be allowed a drawing account of $350 each month, and that the amounts drawn on this account should be charged against his share of the profits.

Conceding for the moment that the evidence supports defendant’s contention that the written contract was modified, we do not find any claim that the modification included a right in defendant to cancel the contract at any time other than as specified in the original written document. In other words, as we view defendant’s contention, it amounts to no more than a claim that the agreement to pay 3 per cent commission on sales was withdrawn.

That it owed plaintiff salary, or that it owed him the right to draw for the last half of January, is conceded, and that amount, to-wit, $175, has been paid, and we find nothing in either the written contract or in the defendant’s interpretation of the oral modification thereof with reference to the right to terminate the contract at will. Since, then, the contract would not have terminated until March 26, 1929, salary, or drawing account, or-whatever it may be called, was due until that time. It is true that the oral modification contended for contained a stipulation that the drawing account should be charged against the 20 per cent of the net profit to which plaintiff was entitled, and it is equally true that the record convinces us that at no time was there any profit, but it is very evident that the defendant interpreted even the oral contract to mean that plaintiff was to receive the amount of his drawing account in all events, and the interpretation which it itself placed upon its own contract will be accepted as the correct one, where that interpretation was contrary to its interests. We thus feel that, although, for the reasons we will heieafter assign, the contract was orally modified, nevertheless that modification consisted of no more than a stipulation that the 3 per cent commission should no longer be paid, and that, if there were profits, plaintiff should be entitled to 20 per cent thereof, but that, in all events, he should draw $350 per month.

Our conclusion, that there was an agreement to modify the original contract, results from our view that the failure of plaintiff to ask for, or to cause to be entered on the books, the commissions which he now claims, is very strong evidence of the fact that he himself knew that he was no longer entitled to those commissions. For the first six months he regularly demanded and regularly received payments oil account of the sales made by him. For the next nine months he at no time demanded commissions and he admits that he did not know whether any commissions had been credited to him on the books, and this in spite of the fact that he had ready access to those books and to some extent seems to have assisted in making other entries therein.

His denial that any agreement of modification was entered into is at least counterbalanced by the testimony of Stewart, Jr., Stewart, Sr., having died in the meantime, and of the other witnesses. But, without the very significant failure to demand the commissions, we do not feel that the evidence would preponderate either way. However, considering the facts to which we have referred, we can reach. no other conclusion.

It is said that plaintiff would have been most unwise to accept an agreement to share in the profits in view of the fact that there had never been any profits, and that probably there never would be any. It should be borne in mind, however, that Stewart could have dispensed entirely with the services of Fossier and Fossier may have thought it best to accept employment on the basis Stewart was willing to offer, rather than to give up the position altogether.

The district court rendered judgment for salary amounting to $645.31 and for commissions amounting to $731.95, a total of $1,377.60. We believe that the commissions are not due and the judgment should, therefore, be reduced to $645.31, with interest as allowed by the district court.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount thereof to $645.31, and, as thus amended, affirmed. Costs of this court to be paid by appellee.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3073
    Second Circuit
    TRIANGLE MACHINE CO., INC., v. DUTTON & ADAMS ET AL.
    (March 24, 1930. Opinion and Decree.)

      Roberts & Naff, of Shreveport, attorneys for plaintiff, appellee.
    Murff & Perkins, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

This suit is brought to recover $133.30 for labor and material furnished by plaintiff, Triangle Machine Company, Inc., which owns and operates a machine shop in the city of Shreveport, La. The suit is brought against Dutton & Adams, alleged to be a commercial partnership, and its individual members, George M. Adams and George E. Dutton. No service was made on Adams. Answer was filed only by George E. Dutton, who denied the existence of the (partnership, and, for lack of information, denied the correctness of the account.

The lower court rendered judgment in favor of the plaintiff and against the defendant George E. Dutton for the amount of $64, holding that the said Dutton was liable under the doctrine of ostensible partnership, and that notice had not been given by him to plaintiff until after that amount of indebtedness had been incurred.

Defendant George E. Dutton appealed from this judgment, and plaintiff has answered the appeal, praying that the judgment be increased to the amount originally prayed for.

Some time in the year 1925, the defendants Dutton and Adams entered into an agreement whereby Dutton was to finance the construction of a bridge in Bossier parish, La., for which Adams had entered into a contract with the police jury of Bossier parish. Adams was to give his entire time to the undertaking, and, in lieu of wages, was to receive one-half of the profits arising out of the contract. In furtherance of the work done under the contract, it became necessary to procure certain work to be done by some machine shop, and this work was intrusted by Adams to the plaintiff, which was instructed to render a bill therefor to Dutton & Adams at the office of the defendant Dutton. Plaintiff did the work as ordered over a period of several months, and sent invoices therefor to Dutton & Adams, and opened an account in that name. All invoices and bills were headed “Dutton & Adams,” and were mailed or delivered in person to defendant Dutton’s office, and he paid the bills with his personal check.

The.last work performed by plaintiff for defendant on the Bossier bridge job was in May, 1926, and all bills for work done on that job were paid by Dutton.

In September, 1926, about four months later, the same Adams came back to plaintiff’s place of business and had other work done of the same nature and kind, and had the work charged to Dutton & Adams, as had been done in the past, and the invoices therefor were mailed to Dutton & Adams, as had been done in the past, addressed to Mr. Dutton’s office in the city of Shreveport. The bills were not paid, and this suit was filed.

The question of an actual partnership is eliminated from the case, as the evidence clearly shows that there was no partnership between Adams and Dutton at the time the work, the price of which is sued for here, was performed, if there had ever been a partnership. The question for us to decide is: Did Dutton, with knowledge, allow Adams to hold him out as a partner to such an extent as-to bind him for the debts made by Adams to plaintiff? We think he did. He received the bills and invoices for work done in the name of Dutton & Adams and paid them with his personal check, and during that time he did not notify plaintiff that he was not a partner of Adams.

“One who acts in such a manner as to induce others to believe that he is a member of a certain partnership, makes himself liable to them as a (partner.” Dodd, Brown & Co. vs. John Bishop Co., 30 La. Ann. 1178; Borden-Aicklen Auto Supply Co. vs. Folse Service Station, 6 La. App. 1; Grieff & Byrnes vs. Boudousquie & Fortier, 18 La. Ann. 631, 89 Am. Dec. 698.
“A person knowing that he is held out as a partner should do all that a reasonable man would do under similar circumstances to assert and show that he is not a partner, thereby preventing innocent persons from being misled.” 20 R.C.L. p. 1070.
“If one knows that his name is used as a partner, though without his consent, his acquiescence may be inferred, if he does not publicly disclaim the connection.” 20 R.C.L. p. 1071.
“Persons who are not actually partners, may, nevertheless, become subject to the liabilities of the partners, either by holding themselves out as such to the public and the world generally, or to particular individuals; or by knowingly or negligently permitting another person to do so.” 20 R.C.L. p. 1067.

This rule of law is predicated on the doctrine of estoppel, and is founded in the enlarged principles of natural law and justice. 20 R.C.L. p. 1068; Grieff & Byrnes vs. Boudousquie, supra.

The defendant Dutton does not contend that he notified plaintiff that he was no longer responsible for the debts being contracted in his name by Adams until after he had received invoice or bill for the work that had been performed.

J. W. Pord, president of plaintiff company, testified that he received from Mr.. Dutton notice in the form of writing on a bill that had been sent to Dutton, wherein Dutton stated that he was not a partner of Adams and not responsible for the bill, and that this, was some time after all work had been completed. Mr. Dutton claims that he notified plaintiff by writing on an invoice and returning it to plaintiff, and by calling up a lady employee of plaintiff and telling her. Mr. Dutton’s testimony is not clear as to when he notified plaintiff that he was not responsible for the bill, while plaintiff’s testimony is positive. Any notice given the clerk or other employee of plaintiff would not be binding on plaintiff, unless it was shown to have been communicated to an officer of plaintiff.

The burden of proving notice was on the defendant, Dutton. 30 Cyc. 674; Grinnan vs. Baton Rouge Mills, 7 La. Ann. 638.

The plaintiff was entitled to special notice by Dutton before it performed the work for Adams, in order for Dutton to be relieved from liability. Skannel vs. Taylor, 12 La. Ann. 773; Shorten vs. Davis Bros., 21. La. Ann. 173.

We think the defendant Dutton has failed to prove that he gave notice to plaintiff with that certainty or preponderance of evidence that is required of those upon whom the burden of proof rests, and that he is liable as a partner for the debt contracted by Adams in the name of Dutton & Adams.

There is no proof that the partnership of Dutton & Adams was held out as a commercial partnership but only as an ordinary partnership, and he is liable for only one-half the debt.

Solidarity is never presumed, and must be proved. In the case of Bank vs. Mayer, 42 La. Ann. 1031, 8 So. 260, 261, the court said:

“The signature is that of a firm; but it may be that such firm is one, the partners of ‘which are ordinary partners, not bound severally but jointly.”

: It is therefore ordered, adjudged and decreed that the judgment of the lower court in favor of. the Triangle Machine Company, Inc., and against George E. Dutton be amended by increasing the amount of the judgment from $64 to $66.65, being one-half the amount of the debt sued for, and, as so amended, that the judgment of the iower court be affirmed; cost of appeal to be paid by ' defendant, appellant. _


author: WEBB, J.

text:
    No. 2688
    Second Circuit
    SMITH v. DWYER
    (April 10, 1930. Opinion and Decree.)
    M. L. Dismukes, of Natchitoches, attorney for plaintiff, appellee.
    J. W. Jones, Jr., of Natchitoches, attorney for defendant, appellant.
   WEBB, J.

In this action plaintiff, G. P. Smith, obtained a writ of injunction restraining defendant from trespassing on certain lands alleged to have been owned and in possession of plaintiff, and defendant appeals from a judgment rendered against him perpetuating the injunction at his cost.

The land on which the defendant is alleged to have trespassed was involved in the suit of J. T. Dwyer vs. G. P. Smith, decided on April 5, 1929, 10 La. App. 506, 121 So. 341, and counsel representing the parties concede that under the ruling in the case cited, the land on which defendant is alleged to have trespassed belonged to defendant, and that the judgment rendered in the present case is erroneous, and counsel join in a motion and prayer that the judgment rendered be reversed, the injunction dissolved, and plaintiff’s suit dismissed at his cost.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that defendant, J. T. Dwyer, have and recover judgment against plaintiff, G. P. Smith, dissolving the writ of injunction and rejecting plaintiff’s demands; plaintiff to pay all costs of suit.


author: ODOM, J.

text:
    No. 2880
    Second Circuit.
    BROWNLEE-WELLS MOTORS, INC., v. HOLLINGSWORTH
    (April 10, 1930. Opinion and Decree.)
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff sued defendant in the city court of Shreveport as indorser on a promissory note. Service was made on October 23, 1926. So far as the record discloses, defendant made no appearance. On November 5th, more than ten days after service was made on defendant, judgment was rendered for plaintiff as prayed for. On November 9th, defendant, through counsel, filed a motion to reopen the case, and for a new trial on the grounds that:

“* * * Mover did appear in person at the Court house, but, being unable to get the matter tried, left, and the matter seems to have been taken up and closed in his absence, although he had informed the officers of the Court that he would appear and make defense to the action.
“That mover has a good and valid defense to said action and shows further that he does not owe the debt at all and has other good and valid defenses, such as failure of consideration, etc., which he could and' would have urged had he been apprised that the case was coming to trial yesterday.
“That mover has just employed counsel today and intended for him to file an answer to the suit, when, upon an investigation by said counsel, it was ascertained that a pretended judgment by default was rendered, read and signed in said cause yesterday.”

The motion to reopen the case is without merit. According to defendant’s own allegations, he knew that his case was scheduled to come up on November 5th and he went to the courthouse, but left before the case was called. He alleges that he told “officers of the Court” that he would appear and make defense. That was not sufficient. He should have filed answer or remained in court until the case was called. If he had desired a continuance in order to secure counsel, no doubt the judge would have granted it.

No defect or irregularity appears on the face of the record. The judgment was rendered in an orderly and legal manner. The judgment recites that the case came on regularly for trial, that evidence was adduced, and “the law and the evidence being in favor thereof, it is ordered, adjudged and decreed' that there be judgment, etc.” The note sued on and the citation, together with the returns thereon, were offered and filed in evidence, and are in the record.

The judgment was rendered without previous default. Counsel for appellant says in brief that the rule practiced in the city court of granting judgment without previous default is a harsh and unreasonable one. This practice, however, is permissible in city courts. Section 4, Act 28 of 1921, which act pertains exclusively to the city court of Shreveport, reads as follows:

“That prior defaults shall not be necessary to final judgment in any cases.”

See, also, Act 151 of 1928; section 51, art. 7, Constitution of 1921.

It is alleged in the motion to reopen the case that defendant had valid defenses which he could and would have urged. In the case of Stout vs. Henderson, 157 La. 169, 102 So. 193, the court quoted approvingly the following from the case of Rhapiel vs. La. Ry. & Nav. Co., 155 La. 590, 99 So. 459, 461:

“No court may legally’ set aside and avoid a judgment by default, confirmed in strict conformity with all the requirements of law, in order to afford defendant an opportunity to offer a defense solely on the alleged ground that such action would be in furtherance of justice.”

The same applies to judgments rendered in the city court of Shreveport in strict conformity with Act 28 of 1921, which _ puts into effect section 51 of article 7 of the Constitution of 1921, and regulates the practice in the city court of Shreveport.

The judgment appealed from is affirmed, with costs.


author: HIGGINS, J.

text:
    No. 13,295
    Orleans
    MR. and MRS. WELSCH v. LAUNDRY
    (April 21, 1930. Opinion and Decree.)
    Marion G. Seeber, of New Orleans, attorney for plaintiffs, appellees.
    • Edward Rightor and Wm. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiffs, Mr. and Mrs. Lou Welsch, sued defendant for damages for personal injuries and property damage resulting from a collision between the plaintiff’s automobile and defendant’s truck at the intersection of Octavia and Willow streets in the city of New Orleans on June 14, 1929, at 9:30 o’clock a. m. Plaintiffs claim $148 damages for repairing the automobile and $100 for personal injuries sustained by Mrs. Welseh.

Defendant filed a general denial, and in reconvention claimed $21 for damages to his truck, averring that plaintiffs were solely at fault in causing the accident.

There was judgment in favor of plaintiffs for $148 damages to the automobile, but the claim for personal injuries was disallowed and the reconventional demand of defendant denied. Defendant has appealed and the plaintiffs have not answered the appeal.

The record shows. that Octavia street is a one-way street running from the river to the lake. Willow street is a two-way street running from uptown to downtown. The two streets intersect each other at right angles. Mrs. Welseh was driving her five-passenger Buick sedan towards the lake on Octavia street, and defendant was driving his Chevrolet laundry truck toward Carrollton avenue, or uptown, on Willow street. When Mrs. Welseh reached the intersection she stopped her Buick car, blew the horn, and proceeded across. The Buick ear had almost traversed the intersection, and therefore pre-empted the crossing, when the right front spring and side of defendant’s truck struck the right rear wheel, fender, and body of plaintiff’s car, driving it into a post on the lake, uptown corner of the intersection, and causing the damage in question. The defendant admits that he saw Mrs. Welseh stop her car and blow the horn and proceed across, but his explanation as to why he did not permit her to proceed is most unsatisfactory. He claims that he was running about twenty miles an hour; that when he approached the intersection he slowed down and sounded his horn, and that he made no effort to stop his truck because he was too close to the Buick car to avoid the collision. His brakes, he further testifies, were very good. His testimony also show that he was fifteen feet or more from the intersection at the time he saw plaintiff’s car. He also admits that the right front spring of his car struck the right rear wheel of the Buick car and it is therefore apparent that, if he had made any attempt to apply his brakes, the Buick car would have passed before him in safety.

It further appears that he could easily have passed to the rear of the Buick car, but when asked why he did not do so, his explanation was that another automobile was coming down Willow street at the same time. His testimony on this point is flatly contradicted by one of his witnesses, Robert Peere, who said there was no other car coming down Willow street at the time. Defendant’s negligence was, therefore, the proximate cause of the accident.

“Whatever may have been the negligence of the party injured the defendant is liable if he might have avoided the accident by the exercise of ordinary caution.” Da Ponte vs. Uzzo, 5 La. App. 105.
“Where two automobiles approach an intersection at a right angle, and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right of way.
“The right of way established by municipal ordinance in favor of vehicles using certain streets is not an exclusive privilege, and it must be exercised with due regard to the right of other vehicles to use the intersecting streets.” Vance vs. Poree, 5 La. App. 109.'

See, also, Marshall vs. Freeman, 10 La. App. 12, 120 So. 414; Brevard vs. N. O. Transfer Co., Inc., 10 La. App. 772, 123 So. 187; Griffin vs. Chalmette Laundry & Dry Cleaning Co., Ltd., 8 La. App. 146; Smyth vs. Hill Stores, Inc., 8 La. App., 246.

As to the quantum, the evidence clearly shows that the damages were the result of the accident, and that the charges for repairing the Buick car are reasonable.

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


text:
    No. 2722
    Second Circuit
    ELECTRIC WATER STERILIZER & OZONE CO. v. KIDD
    (April 10, 1930. Opinion and Decree.)
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Edward Barnett, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff conditionally agreed to sell to A. L. Joffe, of Dallas, Tex., one No. 3 electric water sterilizer, with cylinder, box fittings, etc., for a balance of $1,342.75. According to agreement, it was shipped to the order of plaintiff. Bill of lading and draft attached was sent to the Chase National Bank of New York. The said Joffe did not pay the draft, and the machinery described remained in the possession of the railroad company for several months. The machinery was shipped by an order bill of lading with notation to notify B. P. Kidd.

B. P. Kidd, an officer of the Electrified Water Company, Inc., wired to plaintiff asking to be advised where the draft was. Plaintiff having had no dealing with Electrified Water Company, Inc., or B. P. Kidd, referred them to A. L. Joffe, who had agreed with plaintiff to purchase the machinery.

There was considerable wiring and correspondence between Electrified Water Company, Inc., B. P. Kidd, A. L. Joffe, and plaintiff, but, as Joffe did not pay the draft, the machinery was never released by plaintiff. After several months had elapsed, the Electrified Water Company, Inc., and B. P. Kidd went into court and secured a judgment against the railroad company for the release of the property to them. Plaintiff was not a party to the suit, and had no knowledge of same.

Either before or after defendants had acquired possession of the machinery, they executed notes and a chattel mortgage in payment of the machinery. The record shows that defendants knew a draft was attached to the bill of lading, and that the reason the machinery was not delivered was because the draft had not been paid. While the machinery was in the possession of the railroad company, and after Joffe had failed to pay the draft, plaintiff quoted the defendants a price on the machinery.

Plaintiff sued the defendants Electrified Water Company, Inc., and B. P. Kidd for the price of the machinery. In the original suit it only sued B. P. Kidd, and later, by supplemental petition, it set out that through error of its attorneys it omitted the Electrified Water Company, Inc., and set out the relation of B. P. Kidd to the Electrified Water Company, Inc., and asked for judgment in solido against both.

Defendants excepted to the supplemental petition, which exception was overruled, and it is not urged in this court. The defendants then filed an exception of no cause of action in connection with an answer. The exception of no cause of action was overruled by the lower court, and it has not been urged here by argument or brief and we presume it is abandoned. It is nowhere pointed out what it is based on.

Defendants averred that they purchased the machinery in question from the Electrified Water & Machine Company, of Dallas, Tex., and delivered cash and notes to it in full settlement, and that the Dallas concern was the sales-agent of the plaintiff.

There is no proof in the record that the Electrified Water & Machine Company, of Dallas, Tex., or A. L. Joffe, had any connection with the plaintiff other than to agree to purchase the said machinery and pay for it before delivery, which they failed to do.

The plaintiff’s attorney’s have filed a short concise brief, which thoroughly covers the case, and we quote to a great extent from it.

Plaintiff was the owner of the machinery in question, and it has never been divested of title thereto. Defendant acquired possession of the property in bad faith, and this is a suit for the value of the property, $1,350.

Defendants show bad faith by their own exhibit, where they wrote the plaintiff, on March' 18, 1925, and recognized the fact that plaintiff had shipped the machinery to its own order, with draft attached to bill of lading. After this, they attempted to purchase it from a third party. They did so at their own peril.

The purported sale of this machinery by the Electrified Water & Machine Company, Inc., of Dallas, Tex., to the defendants, was a nullity under the articles of the Civil Code of Louisiana, which provide that the sale of a thing belonging to another is void. Article 2452 of Revised Civil Code.

Counsel for defendants cite the case of Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 So. 193, 196. The case before us is not similar. The cited case refers to a conditional sale, wherein a steam-shovel was sold for $1,200, payable one-fourth down and' the balance in three different installments, and the vendor attempted to keep the title in himself until all the price was paid. Such conditional sales are not allowed under the law of this state. In the case before us, there was no sale until the draft was paid, and it was never paid. There was no delivery. The sale was never consummated. There was no attempt to vest a conditional title, or to consummate a conditional sale. Plaintiff agreed to sell to Joffe the machinery, provided the entire purchase price was paid before delivery, and the price was not paid and the machinery was never delivered.

In Barber Asphalt Paving Co. vs. St. Louis Cypress Co., cited supra, the court said:

“The essentials of a sale are: A thing, the property “in which is transferred from the seller to the buyer; and a price in money paid or promised.”

Neither of the two above conditions exists in this case.

Defendants attempted to purchase the property from a party who did not own it, and defendants knew that plaintiff did own it.

Plaintiff has been divested of its property by the acts of defendants, and is entitled to the value of said property. The lower court found for plaintiff in the amount sued for, and we think that judgment is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3688
    Second Circuit
    POWELL v. THE OHIO OIL COMPANY
    (March 24, 1930. Opinion and Decree.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Roy L. Benoit, of Shreveport, attorney for. defendant, appellee.
   WEBB, J.

This action was instituted to recover compensation under the provisions of the Employers’ Liability Act (Act No. 20 of 1914, as amended). Plaintiff alleged that, on May 12, 1928, while in the employment of defendant, a ladder on which he was standing gave way, and that he fell on his hips on a concrete block, resulting in injury to various members of his body, especially his spine and hips; that he was immediately disabled by the fall, but, after treatment for several days, he returned to his employment, although the pain caused by the fall had not ceased, and that he had been given lighter work, which he performed until about February 9, 1929, when, while in the course of his work, he sprained his back, greatly aggravating the previous injury, totally disabling him to do work of any reasonable character, and he prayed for judgment accordingly.

Defendant answered admitting that plaintiff had been employed by it and admitting the accident of date May 12, 1928, but denied that plaintiff had sustained any injury at that time which had disabled him, or that he had sustained any accidental injury on February 9, 1929, or that he was disabled.

Trial was had on June 9, 1929, and plaintiff appeals from a judgment rejecting his demands.

The evidence established that in February, 1929, there was a bony growth on three of the lower vertebrae of plaintiff’s spine, which condition, it is conceded, indicates arthritis, a disease of the joints which physicians, called by the parties, agree is caused by focal infection and may be expected when the subject has diseased teeth, gums, and tonsils, as it is conceded was the case in the present instance. But the experts agree that when there is a focus of infection, an injury may localize the infection and cause the development of the disease in the injured tissue. And, as we gather, the theory of plaintiff’s case is that he sustained an injury of his spine at the time of the accident on May 12, 1928, which had caused the development of the disease in that tissue, and that, on February 9, 1929, he sustained another accidental injury of the spine which aggravated the condition then existing and rendered him totally unable . to do work of any reasonable character.

There was evidence introduced which, we are of the opinion, established that plaintiff had subsequent to the time he filed suit (March 16, 1929), done work of a very similar nature to that he did when employed by defendant, but, as stated, the evidence shows that the disease, arthritis, which is said to be an advanced stage of rheumatism, existed in February, 1929, and we assume it will be conceded that at that time there was some disability, and we consider whether or not the evidence establishes that the disability resulted from the accidental injuries sustained by plaintiff while at work for defendant.

The evidence established that there was not any indication of wounds, traumatic lesions, or fractured bones, at tbe time of the trial, or in February, 1929, and, as stated, the disease had developed at the time of the alleged accident on February 9, 1929, and we assume that the evidence as to that incident was not introduced to show that the disease was aroused, but to show that there had been at that time an accidental injui-y of the physical structure of the body, or, more specifically, of the spine.

With relation to the incident, plaintiff said that some time in February, 1929, while he was lifting some object, his back hurt, and that he quit work, and had not been able to work since, while the evidence established that he worked through February, and until March 7, 1929.

Considering that plaintiff had -an advanced case of rheumatism in February, 1929, the evidence at most merely shows he experienced a pain symptomatic of the disease, but does not show he sustained an accidental injury of the physical structure of the body or of the spine, and we do not think the evidence established that any injury was sustained by plaintiff in February, 1929, for which compensation could be allowed (see Hicks vs. Meridian Lumber Co., 152 La. 975, 94 So. 903; Young vs. Melrose Granite Co., 152 Minn. 512, 189 N.W. 426, 29 A.L.R. 506); and, passing the alleged injury of February, 1929, it is only necessary to consider whether the evidence established that the condition or disease existing in February, 1929, was the result of the alleged accidental injury of May 12, 1928.

Relative to that accident and its results; plaintiff said that he was immediately disabled, while the evidence conclusively established that he worked the day following the accident, May 13th, and until he called on a physician, on the 16th of May, who, plaintiff says, treated him for injuries sustained at the time of -the accident, but the physician stated that he had not treated plaintiff for any injuries resulting from the accident, that plaintiff informed him of the accident, but that he did not find any evidence of injury, and that he treated plaintiff for an abscess which was not caused by trauma, and that during the period he treated plaintiff there was not any complaint of pain symptomatic of traumatic injury.

Plaintiff further stated that he had not entirely recovered from the pain caused by the fall, when he returned to work on May 24th, and that he had been given lighter work; but the evidence conclusively establishes that he was given the same employment as prior to the accident, and that he did not make any complaint of disability or pain until more than seven months after the accident.

The evidence does not present a case where the injured workman was disabled by the accident and continuity of such disability, or where the disease causing disability developed during the. period of disability resulting from the accident, and we do not think that, conceding the fall, as related by plaintiff, was of sufficient violence to have injured the spine, and that, if the spine was injured, the disease may have been localized or developed in that tissue as the result of the injury (which is the hypothesis of the physicians called by plaintiff) the evidence establishes any basis for the hypothesis.

The fact that plaintiff worked three days after the accident, that he did not complain to the physician who treated him of any pain symptomatic of an injury of the spine, and that he worked seven months in the oil field after the accident without any complaint of pain symptomatic of such an injury, does not indicate that he sustained such injury. Antley vs. Louisiana Central Lumber Company, 11 La. App. 14, 122 So. 78. And it being shown that plaintiff’s teeth, gums and tonsils were diseased, which condition is admitted to have been of itself sufficient to have accounted for the disease arthritis, without regard to the accident, we are of the opinion the evidence failed to establish any connection between the accident of date May 12, 1928, and the disease with which plaintiff was afflicted on February 12, 1929.

The judgment is therefore affirmed.


text:
    No. 3667
    Second Circuit
    BRISOLARA v. CADDO-TRANSFER & WAREHOUSE CO.
    (April 24, 1930. Opinion and Decree.)

      Pugh, Grimmett & Boatner and F. Simon, of Shreveport, attorneys for plaintiff, appellee.
    John G. Gibbs, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The defendant is a corporation organized under the laws of this state and operates motórbuses in which passengers are carried over the highways for hire. Plaintiff took passage on one of defendant’s buses at Minden to go to Homer, and paid the usual fare. On the way, the casing on the right front wheel blew out, causing the bus to turn over and go off the road into a ditch, and plaintiff was injured. Plaintiff was a traveling salesman, selling shoes on commission. He brought this suit to recover damages for his personal injuries and for tjie loss of commissions which, he alleges, he could and would have earned during the time he was disabled on account of the accident and resulting injuries.

Defendant admits that plaintiff was a passenger for hire on one of its buses and, as we understand, its counsel concedes that insofar as the issues here involved are concerned, it is a common carrier of passengers and that its duties and obligations toward its passengers and its liability for such injury 'as may befall them while being transported are the same as those pertaining to carriers of passengers for hire generally.

As a defense, it is contended that if it be true that a casing on its bus did blow out causing a wreck in which plaintiff was injured, it is not liable because such blow-out was due to no fault on its part; and, second, that plaintiff’s injuries, if he received any, were trivial and not sufficient to warrant a recovery for damages, and the claim for loss of commissions is conjectural and cannot be made the basis of a judgment for damages.

1. The relationship which existed between plaintiff and defendant was that of passenger and carrier and was contractual. Plaintiff paid the required fare for passage on the bus; by receiving the fare for passage and accepting him as a passenger, defendant impliedly obligated itself to furnish him with safe passage and to set him down without injury. Plaintiff was injured while a passenger, and it is not suggested that his injuries were- due to any fault of his own. Defendant therefore breached its contract with plaintiff for safe passage.

To escape liability, defendant set up the plea that the blow-out which caused the wreck was due to an “unavoidable accident” and that it had used due care.

The rule stated by all text-writers and the settled jurisprudence of this and other states is that a carrier of passengers for hire owes to them the duty of exercising the highest degree of care for their safe transport that is consistent with the conduct of such business; and, further, that where a passenger is injured by an accident due to a “defect in any of those things which the carrier is bound to supply or is the result of a failure in any respect of the carrier’s means of transportation, or the conduct of its servants, a presumption of negligence arises against the carrier in an action by the passenger for the injuries thus caused,” and that the burden of proof is upon the carrier to show why the contract of carriage was not fulfilled.

In the case of Brannon vs. Yazoo & M. V. R. Co., 129 La. 916, 57 So. 172, the Court said:

“As the answer admitted the contract of carriage and a violation of the contract on the part of the defendant, the only question before the court was the quantum of damages to be awarded to the plaintiff for the breach of the contract. The burden is on the defendant to show that the inexecution of the contract on his part was occasioned ‘by a fortuitous event or irresistible force.’ C. C. art. 1933, No. 2. ‘Those accidents are said to be caused by superior force, which human prudence can neither foresee nor prevent.’ C. C. art. 3556, No. 14. ‘Fortuitous event is that which happens by a cause which we cannot resist.’ Id. No. 15.” Garrow vs. Seattle Taxicab Co., 135 Wash. 630, 238 P. 623, 45 A.L.R. 297-306; 5 R.C.L. 74-77; LeBlanc & Wife vs. Sweet et al., 107 La. 355, 368, 31 So. 766, 90 Am. St. Rep. 303; Spurlock & Wife vs. Shreveport Trac. Co., 118 La. 1, 42 So. 575; Hopkins vs. N. O. Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362.

In its efforts to discharge the burden which rested upon it, defendant called one witness, Mr. King, the bus driver. He was asked two questions about the tires:

By Mr. Gibbs (counsel for defendant) :

“Q. The tires on these buses are inspected every morning before they leave, are they not?
“A. Yes.
“Q. They were inspected on that occasion?
“A. Yes, sir.”

He was not asked to state, and did not state, what the inspection showed. There is nothing to show whether the casing was new and heavy enough to carry the load, or whether light or old and worn. So far as we know, the casing may have been thin and too light for the load, or old, worn, and otherwise defective. Defendant left the court totally in the dark as to the condition of its equipment. It follows necessarily that we must hold defendant liable.

2. Defendant urges the point that plaintiff’s injuries were trivial and not sufficient to warrant a judgment for damages and he cites the ease of Bianchi vs. Del Valle, 117 La. 587, 42 So. 148. Plaintiff’s demands were rejected in that ease, but not upon the ground that her injuries were trivial. Of course, if plaintiff received no injury which damaged him, he cannot recover. He was injured to some extent and suffered some damage. The bus turned over and he was badly shaken up and excited. He received a slight wound on the head and apprehended, it seems, that his skull was fractured. He was carried to Homer within a short time and consulted Dr. Campbell, who says that he found practically nothing the' matter with him, although he admits that his examination was casual. Plaintiff rode to Shreveport in defendant’s bus and from there went to New Orleans by rail. He testified that he was confined to his bed for three days, during which time he suffered considerably from pains in his head. He was confined to his room, it seems, for five additional days, after which he was able to leave his room and go upon the streets. He testified that he was kept from work for two weeks in all. Plaintiff was visited in New Orleans by Dr. Roequet, who testified as follows concerning the injuries:

“Suffering from extensive contusions and abrasions of both legs and a very severe contusion of the head. * * * Well, the contusion of the right leg extended from the knee to the ankle, and, on the left leg, about half way from the knee to the ankle, and the contusions of the head were on the top of his head and the forehead.”

Dr. Rocquet’s testimony was taken nearly a year after he visited plaintiff, and lie says that his recollection of the case is somewhat indefinite. It is clear that plaintiff had no broken bones and no permanent injuries or scars. His injuries, we think, were slight. However, he suffered some pain and inconvenience and probably some loss of commissions. His physician charged him $6.

The district judge awarded him $506; he probably took into consideration plaintiffs small loss in commissions, which was allowable in a case like this. Wilkins vs. Featherstone Transfer Co., 156 La. 601, 100 So. 732.

We think the judgment does substantial justice to all parties, and it is accordingly affirmed, with costs in both courts.


text:
    No. 3181
    Second Circuit
    VICTORIA LUMBER CO., LTD., v. WOODSON TOM GREEN, Garnishee
    (March 24, 1930. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.
    W. H. Scheen, of Shreveport, attorney for garnishee, appellant.
   ODOM, J.

The plaintiff obtained judgment against defendant, procured the issuance of a writ of fi. fa., and by supplemental petition in which it was alleged that Tom Green, a resident of the city of Shreveport, was indebted unto defendant, asked that Green be made a party garnishee and directed to answer categorically and in writing under oath the annexed interrogatories. The order was granted as prayed for on July 25, 1927. Personal service of citation and • the interrogatories was made on Green on July 29th. He was given ten days in which to answer. :

We here copy the minutes of the court, certified as correct by the clerk, as they appear:

“Tuesday, August 9th, 1927.
“Court opened Tuesday, August 9th, 1927, by N. P. Tanner, Marshal, with Judge David B. Samuel presiding and clerks, H. C. Griggs and R. D. Hendrick in attendance.
“Following proceedings had:
“Minutes of Monday, August 8th, 1927, read and approved.
“Victoria Lumber Company, Ltd., No. R-1766, vs. John Woodson.
“Answer of Garnishee filed. Judgment against the Garnishee. Judgment read, signed and filed.
“Court adjourned.”

The judgment read, signed, and filed as of that date, so far as it need be quoted reads as follows:

“In the above entitled and numbered cause, Tom Green, having been duly cited Garnishee therein, and having failed to answer the interrogatories within the delay given by law, the law and the evidence being in favor of the plaintiff, Victoria Lumber Company, and against the Garnishee, Tom Green; it is therefore ordered, adjudged and decreed:
“That there be judgment pro confesso in favor of the plaintiff, Victoria Lumber Company, and against the Garnishee, Tom Green. * * * ”

The garnishee’s answers to the interrogatories are in the transcript and are endorsed as follows:

“Filed, August 9th, 1927, R. D. Hendrick, Clerk.”

In the garnishee’s answers to the interrogatories, he denied that he was then indebted to defendant in any sum, that he had any property in his possession or under his control belonging to defendant, or that he had, since the service of notice upon him, made any payment to said defendant or given him any note or other obligation, or received from him any receipt or acceptance.

As soon as the garnishee learned, incidentally it seems, that judgment pro confesso had been rendered against him, he moved to have the judgment set aside on the ground that his answers had been filed in time and were before the court when judgment was rendered, and that inasmuch as he had specifically denied that he was indebted to defendant, no judgment could be rendered against him.

The motion to set the judgment pro confesso aside was tried before a judge ad hoc who denied it. The garnishee appealed to this court.

OPINION

Service on the garnishee was made on July 29th. Not counting the day on which service was made, the garnishee, having ten full days in which to answer and the last day not being a legal holiday, it will be seen that his delay for answering expired at the close of August 8th.

Article 263 of the Code of Practice provides that:

“If the garnishee, to whom interrogatories have been put, refuse or neglect to answer the same under oath in the delay of the law, such refusal or neglect shall be considered as a confession of his having in his hands property belonging to the debtor, sufficient to satisfy the demand made against such debtor, and judgment shall be rendered against him for the amount claimed by the defendant, with interest and costs.”

It is contended by counsel for appellee that under the above-quoted article of the Code, the garnishee must file his answers to the interrogatories on or before the tenth or last 'day given him and not later; that his failure to answer on or before the tenth day is a confession of indebtedness which cuts him off and closes, locks and bars the door against him. That such was the opinion and holding of both the trial judge and the judge ad hoc, who refused to set the judgment aside, is made clear, we think, by the record.

The judgment against the garnishee recites in part that: “Tom Green, having been duly cited Garnishee therein, and having failed to answer the interrogatories within the delay given by law, the law and the evidence being in favor of the plaintiff, * * * it is therefore ordered, adjudged and decreed: that there be judgment pro confesso in favor of the plaintiff.”

The judge ad hoc, in his written reasons for refusing to set the judgment aside, said:

“Service on the garnishee was made personal on July 9th (29th) 1927, and judgment signed on August 9th, 1927. In Tessier v. Jacobs, 164 La. 239, 113 So. 833, the Supreme Court decided a situation exactly similar to this and declared that the ten (10) days had expired. * * *”

That the trial judge was of the opinion that the garnishee was cut off entirely by his failure to answer by the end of the tenth day is further evidenced by the fact that, according to the minutes, the answers of the garnishee were filed and were before the court before and at the time judgment pro confesso was granted, which answers clearly and emphatically deny any indebtedness to defendant. If the judge had thought he was permitted under the law to consider the garnishee’s answers, he would not have rendered judgment pro confesso, for it is settled jurisprudence that when the answer of the garnishee denies any indebtedness to defendant, no judgment can be rendered against him without a rule or other proceeding to traverse his answers. Coleman vs. Fennimore, 16 La. Ann. 253; Marks vs. Reinberg, 16 La. Ann. 348; Taylor vs. McGee, 19 La. Ann. 374; Flash vs. Norris, 27 La. Ann. 93; Maduel vs. Mousseau, 28 La. Ann. 691; Estill vs. Goodloe, 6 La. Ann. 122; Auge vs. Variol, 31 La. Ann. 865; Roth vs. Hotard, 32 La. An. 280; Edwards vs. Fairbanks (1883) Man. Unrep. Cas. 53; David vs. Rode (1883) 35 La. Ann. 961; Germania Sav. Bank vs. Peuser, 40 La. Ann. 796, 5 So. 75.

We hold as a fact that the garnishee’s answers were filed on August 9th, before the judgment pro confesso- was entered. Our holding is based on the minute entries as we find them in the transcript. They are as follows:

1. “Answer of Garnishee filed.”
2. “Judgment against the Garnishee.”
3. “Judgment read, signed and filed.”

We take it that these minute entries correctly show chronologically the proceedings had before the court on August 9th. If they were not correct, it was plaintiff’s privilege to have them corrected.

Now as a' matter of law, we hold that even though the garnishee’s answers were not filed by the end of the tenth day, they should have been considered by the court, having been filed on the eleventh day, before plaintiff moved for judgment pro confesso.

In garnishment proceedings, the failure of the garnishee to answer by the end of the prescribed period is in the nature of and is equivalent to a default in ordinary proceedings. Patrick Henry vs. Mrs. E. M. Bryce, Wells & Wife, Garnishees, 11 La. Ann. 691. But such default is not final and can be made so only upon motion in open court for. judgment. In ordinary proceedings, “if the defendant do not appear either in person or by his advocate after! the delay provided by law, the plaintiff; may take a judgment by default against! him.” Code of Practice, art. 310. “Such' judgment may be obtained by moving for ■ it in court, but it consists merely in a statement on the records of the court, ' showing that the defendant has failed to appear.” Code of Practice, art. 311.

In garnishment proceedings, no motion' is necessary to obtain a default against the garnishee. His failure to appear is a ■ default or a confession that he is indebted unto plaintiff as alleged and authorizes a : final judgment by motion. In ordinary proceedings, if the debtor neither appear nor, file answer in two clear, legal days, a definitive judgment will be given against him. if plaintiff prove his claim. But, “if the defendant, on the very day when a definitive judgment by default was to have been ; rendered against him, appear and file his answer, the first judgment taken shall be set aside.” Code of Practice, art. 314. ;

Under the Code and our jurisprudence, it matters not how long a case may stand on preliminary default, such default is set' aside by answer filed at any time previous ■ to its confirmation. So, in garnishment proceedings, if the garnishee file his answer at any time previous to motion for ’ judgment .pro confesso, his default or confession resulting from his failure to answer within ten days is set aside and there is issue joined between him and plaintiff.

The Code of Practice, art. 263, provides that the garnishee’s failure or neglect to answer within the delays allowed him “shall be considered as a confession,” not taken as a confession. The very point here involved was decided by our Supreme Court ' in 1848. In the case of Copley vs. Dosson,

3 La. Ann. 651, the court said:

“The position assumed by the plaintiff that, the garnishee having failed to answer the interrogatories on the day for which she was cited to appear, they were to be considered as confessed, without a motion or order of the court to that effect, and’ as precluding her from all further defense, is untenable. In the case of Sturges vs. Kendall, 2 La. Ann. 565, relied on, which was a case of attachment, the interrogatories were ordered to be taken as confessed, on a formal motion to that effect. Until interrogatories are taken by the court as confessions, the garnishee may appear and answer them, and plead all-defenses which he could have previously opposed to the proceedings against him.”

The case of Tessier vs. Jacobs, 164 La. 239, 113 So. 833, cited by the judge ad hoc and relied upon by counsel for appellee, has no application here, In that case it was contended that, “under Code Prac. arts. 180 and 318, the terminal day is excluded in the delay for answering”; that a defendant had the whole of the next day in which to file answer and that a judgment entered on the eleventh day was premature. The court said that the uniform jurisprudence for a period of more than fifty years was that “the delay for answering expires on the tenth day, if not a holiday, and, if it be a holiday on the following day, after service of the citation, and that a preliminary default may be timely entered on the next day,” citing a long list of decisions.

The question involved in that case and in those cited was whether a preliminary default might be legally entered on the eleventh day, and the court held that it could. But that case is not decisive of the point at issue in the case at bar. . Under the very letter of the Code, a garnishee who fails to answer by the end of the tenth day is considered in default. But whether he be ..in default- is not the question., The question is whether being in. default, he may set that default aside by answer filed thereafter at any time before motion is made for judgment pro confesso? "We hold that he may do so.

At the time the judgment was rendered against the garnishee, his answers, denying any indebtedness to defendant, were before the court and no judgment could be rendered against him. See authorities cited supra.

It is therefore ordered, adjudged, and decreed that the judgment against Tom Green, garnishee, be reversed, and that plaintiff pay all costs.


text:
    No. 3252
    Second Circuit
    LEE v. RIGGS FRIERSON, Warrantor
    (March 24, 1930. Opinion and Decree.)
    Lee & Williams, of Mansfield, attorneys for plaintiff, appellee.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant, appellant.
    Parsons & Colvin, of Mansfield, attorneys for warrantor, appellant.
   WEBB, J.

This action was instituted by plaintiff, Elmo P. Lee, against defendant, J. Hearsey Riggs, to be decreed the owner and entitled to possession of a small tract of land situated in DeSoto parish, La., in the possession of defendant, and to recover judgment against defendant for the value of the use of a portion of the property. alleged to have been cultivated by defendant.

Both plaintiff and defendant claim to have acquired title to the property, through L. S. Frierson, to whom the state of Louisiana patented the land in February, 1919. Defendant called Frierson in warranty to defend the action, and prayed that, in event of eviction, he have judgment over against Frierson for whatever amount judgment should be rendered against him in favor of plaintiff and also for judgment against Frierson for the value of improvements to the land, taxes paid, etc., and also for the price paid Frierson by defendant’s author in title for the land; and defendant also pleaded the prescription of three years against plaintiff’s claim for the value of the use of the land.

Frierson excepted that the call in warranty failed to state a cause of action, which being overruled, he answered admitting he had transferred the property to Lee and denying that he had sold it to defendant’s alleged author in title, and prayed that defendant’s demands against him be rejected with cost.

On trial judgment was rendered in favor of plaintiff against defendant recognizing plaintiff as the owner and entitled to the possession of the property and in favor of defendant against Frierson for the amount found by the court to have been paid by defendant’s alleged author in title to Frierson for the property, and rejecting all other demands of defendant against the warrantor. Plaintiff’s demand against defendant for the rental value of the cultivated part of the property was rejected. Defendant’s claim for the value of alleged improvements to the property, taxes paid, etc., appears not to have been adjudged. All costs of suit were taxed against Frierson. All parties appealed.

The act of transfer to Lee by Frierson is dated December 5, 1918, and was filed for record February 25, 1919, while the instrument under which defendant claims to have acquired the property was not filed for record until December 7, 1926. The parties therefore concede that the judgment, in so far as it recognizes Lee as the owner and entitled to possession of the property, is correct, and the only questions presented here are whether defendant was a possessor in good faith, and, if not, whether plaintiff’s claim for the value of the use of that portion of the property which defendant cultivated, or any part thereof, was prescribed, defendant’s claim for alleged improvements to the land, taxes paid, etc., and whether defendant was entitled to call Frierson in warranty.

, It is conceded that the land in contest was at one time part of the bed of a shallow lake, and that Frierson, as the owner of land bordering and fronting on the lake, claimed riparian rights to the land in contest, and defendant, in support of his claim that he was a possessor in good faith and of the right to call Frierson in warranty, refers to two instruments, signed by Frierson in October, 1908, which, he claims, show that Frierson sold the land in contest to H. T. Prudhomme and others, and to other instruments, under which he asserts title from H. T. Prudhomme and others.

One of the instruments signed by Frier-son in October, 1908, is conceded to evidence the sale of land bordering on the lake to H. T. Prudhomme and others, and in the other instrument, which is dated October 31, 1908, and was filed for record December 7, 1926, Frierson declares that, in consideration of $405, he transfers all his right, title, and interest in certain land formerly in the bed of the lake (which is conceded to include the land in contest) and promises to obtain title to the same from the state of Louisiana and to make title thereto to H. T. Prudhomme and others, if'at that time H. T. Prudhomme and others have paid all -of the outstanding notes given in consideration of the sale of the land bordering on the lake, which consideration Frierson declares Included the consideration of $405.

Conceding, for the present, that the instrument of date October 31, 1908, should be construed as a sale of the property in contest by Frierson ■ to H. T. Prudhomme and others, the evidence shows that defendant was fully aware at the time he claims to have acquired the property from H. T. Prudhomme and others in July, 1913, of the nature of the title under which they held, and then knowing that the property belonged to the state of Louisiana, defendant cannot be said to have been a possessor in good ’faith (McDade vs. Bossier Levee Board, 109 La. 626, 33 So. 628; Lawrence vs. Young, 144 La. 1, 80 So. 18); and the evidence conclusively establishing that the value of the use of the property for the years 1919 to 1926, inclusive, was $60 per year, we think plaintiff should recover judgment for the same, unless the claim is prescribed.

The action was filed on February 25, 1927, and the prescription is under article 3538 of the Civil Code which declares that actions for arrearages of rent charge, annuities, and alimony, or of. the hire of movables and immovables, are prescribed by three years.

We do hot think that the prescription under that article is applicable to the claim for the value of the use of the prop-' erty, as such claim is based upon the principle that one may not enrich himself at tlie ‘ expense of another, and the obligation , is to pay for the use of the property and is not prescribed under ten years (Civil Code, art. 3544; Roussel vs. Railways Realty Co., 165 La. 536, 115 So. 742); and plaintiff should have judgment against defendant for the amount claimed for the use of the property.

Considering the question as to the right of defendant to call Frierson in warranty, and to recover judgment over against him, it must be conceded that the right did not exist, unless the instrument of date October 31, 1908, was a sale of the property in contest by Frierson to H. T. Prudhomme and others.

On the face of the instrument it is clear that the title was recognized as being then in the state of Louisiana, and that there was not any intention of making a present sale of the property in contest, and, whatever right defendant may have acquired as the assignee or transferee of H. T. Prudhomme and others, he did not acquire any right to call Frierson in warranty, and the demands of the defendant, J. Hearsey Riggs, against L. S. Frierson, should have been rejected.

No evidence was offered in support of defendant’s claim for alleged improvements, taxes paid, etc., and apparently that claim was abandoned in the lower court.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and set aside, and it is now ordered, adjudged, and decreed that' plaintiff, Elmo P. Lee, have and recover judgment against .defendant, J. Hearsey Riggs, decreeing plaintiff to be the owner of the fractional south half of northwest quarter of section 5, township 14 north, range 12 west, Louisiana meridian, lying and being within the dried bed of Cannasnia lake immediately north of the meander line established' -by the United States survey made during'the years 1831 and 1832, all situated in DeSoto parish, La., containing twenty-eight acres, more or less, and as such entitled to the full and undisturbed possession of same, and ordering defendant, J. Hearsey Riggs, to deliver possession thereof to plaintiff.'

It is further ordered, adjudged, and decreed that plaintiff, Elmo P. Lee, have and recover judgment against defendant, J. Hearsey Riggs, in the sum of $480, with legal interest thereon from judicial demand, and all cost of suit.

It is further ordered, adjudged, and decreed that the demands of defendant, J. Hearsey Riggs, against L. S. Frierson under the call in warranty be rejected at the cost of defendant J. Hearsey Riggs.

It is further ordered that defendant J. Hearsey Riggs pay all cost of appeal.


text:
    No. 3379
    Second Circuit
    COOK-DOUGLAS CO., INC., v. PRUD-HOMME
    (March 24, 1930. Opinion and Decree.)
    Craig, Bolin & Magee, of Mansfield, attorneys for plaintiff, appellant.
    C. B. Huson, of Mansfield, attorney for defendant, appellee.
   DREW, J.

Plaintiff, a corporation, brought suit against the defendant, widow of J. B. Prudhomme, deceased, alleging that during the lifetime of said J. B. Prudhomme it had sold goods, wares, and merchandise to deceased for the community then existing between him and defendant; that, at the time of the death of J. B. Prudhomme, there was a balance due of $149.25. After the death of said Prudhomme, the defendant herein, his widow, went into possession of the property left by him as owner of one-half and usufructuary of the other half; that thereafter she assumed the, account due to plaintiff and promised to pay the same; and that she assumed said debt and promised to pay same for the consideration of the signing of a bond for her by L. M. Cook, president of Cook-Douglas Company, Incorporated.

The defense is a general denial.

The evidence shows that, at the time of death of J. B. Prudhomme, there was no community property of any kind whatsoever, therefore nothing for defendant to go into possession of — no community to accept. “Unless a wife accepts expressly or tacitly the community, she stands in relation to its debts very much in the position which she would to the debts o,f any other third person. A promise to pay the debt of a third person must be express, and in writing, signed by the party to be charged.” R. C. C. art. 2278; Stuffler vs. Puckett, 30 La. Ann. 813.

Defendant was not liable for the debts of the community during the lifetime of her husband, neither was she liable after his. death, unless she has made herself liable by some specific acts of hers as defined by law. Therefore, the remaining question to be decided is: Did defendant promise to pay the community debt for the consideration of Mr. Cook signing her bond to prevent her from going to jail, under a charge of violating the Hood Act, and, if so, is it a promise to pay such as would make admissible parol testimony to prove over the objection of defendant?

Mr. Cook, president of plaintiff corporation, testified as follows:

“Q. What was the consideration of your signing that bond?
“A. Mr. Craig, Í had no incentive only to try to help her out. Mr. Prudhomme, just before he died told me, we were talking about that business, and he told me, ‘ijf I don’t live to pay you, you know who will’, but he never called no name. He and Mrs. Prudhomme always managed their business together and would come and she would decide what they wanted and I would put it up for them all the time. Hardly ever he was there without she was there too to say what to buy, and I thought when Mrs. Prudhomme was arrested, or I thought at the time he said he meant her. His boys never did buy anything for him or have anything to do with him. It seemed that him and her did their business and had their understandings together. Well, when that man come to the office and called for Mr. Cook, Morris went around to where the sheriff was and they came back together and said he was the wrong Cook, that Mrs. Prudhomme wanted me. I went around there and when she told me her trouble, that she had been arrested and had to give bond and was accused of selling whisky, she said she hadn’t sold it and all of that, and I said, ‘Well, Mrs. Prudhomme, you can’t attend to business and be in jail too’, and I said, ‘I will go on the bond if you will agree to go home and attend to your business and quit the whisky business if you have been selling or handling it or anything of that kind and pay us what you owe us’, and she remarked, said, ‘Mr. Cook, if I live I will pay you’. Said, ‘I can’t do it all at once’, and I said, ‘That is all right’. I said, ‘Pay it along as you can’, but I said, ‘Go home and attend to your business and I will go on your bond’, and I thought it a little bit strange the boys wasn’t there and there was nobody to help her out but I knew she couldn’t attend to her business unless she was at home and I went on her bond and that was the reason.”

He further testified that he thought that when Mr. Prudhomme said, “If I don’t live to pay it, you know who will,” that he was referring to his wife, the defendant herein, because she had always been with him and they always did business together.

On cross-examination, Mr. Cook testified, “I feel she owes it even without assuming it, because she used the goods and selected them herself.”

Plaintiff was undoubtedly under the erroneous impression that defendant was legally bound for the debt of her husband before he signed the bond and his reason for signing the bond was to allow her to go home and attend to her business, realizing that she could not make any money if ■forced to go to jail. He assisted her in order that she might have a better opportunity to make the money to pay him a debt he then claimed and thought she owed him, and did not sign the bond because of any new promise made at the time. His testimony refutes that last proposition, and the objection to parol evidence to prove the promise to pay a debt of a third person should have been sustained.

Defendant raised the further question in the alternative that, if defendant did make the promise as alleged, it was contrary to public morals and made under duress. It is unnecessary to pass on this question under our finding in this case. However, article 90 of the Code of Criminal Procedure of the state of Louisiana deals with and outlaws contracts made to indemnify surety against loss on any bail bond; and the law in general frowns on those who take advantage of criminal prosecutions to extract funds and promises from the unfortunate.

One who seeks to render one person liable for the debt of another must show such liability beyond all doubt. Hazard vs. Lambeth et al., 3 Rob. 378; Cleneay et al. vs. Dougherty, 135 La. 346, 65 So. 485.

The judgment of the lower court was in favor of the defendant, rejecting the demands of the plaintiff, and the judgment is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed; plaintiff and appellant to pay costs of appeal.


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    No. 3251
    Second Circuit
    ALSTON v. MOATS ET AL.
    (March 24, 1930. Opinion and Decree.)

      Craig, Bolin & Magee, of Mansfield, attorneys for plaintiff, appellee.
    W. M. Pollock, of Mansfield, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued for the price of one engine alleged to have been sold to defendants in the year 1924 for $175, which price, he alleges, has never been paid. The defense is double barrelled. First, they deny purchase, of the engine, and allege it to have been bought by M. B. Smart, the husband of defendant Mrs. T. O. Smart; and, second, that the plaintiff had agreed to take back the' engine and cancel the debt. The second defense does away with the first, and the sole question before us to decide is: Was the agreement to take back the engine such an agreement. that would constitute a sale and relieve the defendants from paying the purchase price.

Defendants were engaged in the sawmill business, and moved the engine from plaintiff’s premises to their sawmill and used it for some time, and, realizing that they were losing money in their business they decided to abandon it, and requested plaintiff to take back the engine- and cancel the debt, which he agreed to do, if the defendants would deliver the engine to him. The delivery was never made, and after waiting for many months and after demanding of defendants by letter that they deliver the engine, plaintiff brought this suit. Plaintiff agreed to accept the engine and cancel the debt upon delivery of the engine. Defendants failed to comply with the condition of the contract or agreement and cannot claim thereunder.

Plaintiff’s suit is against Grover E. Moats and Mrs. T. O. Smart. He prays for judgment in solido against them. He does not allege any facts in support of the conclusion of law that they are liable in solido. He does not allege .that defendants compose a commercial partnership. Neither does he sue the partnership. There was no exception filed to the petition, and evidence was admitted, without objection, that proved defendants to be the sole members of a commercial partnership, engaged in sawing and selling timber, and, in' 'general, operating a sawmill, thereby proving solidarity.

Solidarity is never presumed. Bank vs. Mayer, 42 La. Ann. 1031, 8 So. 260.

Commercial partners are bound in solido for every partnership debt. Shreveport Ice & Brewing Co. vs. Mandel Bros., 128 La. 314, 54 So. 831.

The existence of a commercial partnership may be established by parol evidence. Brown vs. Bank of Minden, 167 La. 421, 119 So. 413.

“A cause of action is shown where any allegation of the petition, taken together with evidence unobjected to on the trial, shows a cause of action.” Morris vs. St. Bernard Cypress Co., 140 La. 511, 73 So. 345.
“Failure to plead ultimate facts in support of conclusion of law stated in petition for injunction was cured by admission of evidence without objection thereto.” Zibilich vs. Rouseo, 157 La. 936, 103 So. 269, 270.

The evidence admitted in this case without objection had the effect of enlarging the pleadings to such an extent as to justify Jhe judgment rendered by the lower court.

The lower court rendered judgment in favor of the plaintiff, in the sum of $175 with 5 per cent per annum interest thereon from November 5, 1924, until paid, against the defendants, Grover E. Moats and Mrs. T. O. Smart, in solido. The judgment of the lower court is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed. Cost of appeal to be paid by defendants, appellants.


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    No. 3458
    Second Circuit
    GAY v. SABINE STATE BANK & TRUST COMPANY PILCHER v. SABINE STATE BANK & TRUST COMPANY
    No. 3459
    Second Circuit
    (March 24, 1930. Opinion and Decree.)
    R. A. Eraser, of Many, attorney for plaintiffs, appellees.
    Ponder & Ponder, pf Many, attorneys for defendant, appellant.-

      Craig, Bolin & Magee, of Mansfield, attorneys for defendants called in warranty, appellees.
   ODOM, J.

In the early part of 1926, the state bank examiner, under the' direction of the state banking department, investigated the affairs of the Bank of Zwolle and found it insolvent, or, as Mr. Buckner, the examiner, expressed it, “in a hazardous condition.” He found and reported to the directors and stockholders that the affairs of the bank would have to be liquidated ; and, further, that it' was probable that the depositors would lose heavily in the end. This was made known to the depositors by Mr. Buckner and the officers of the bank.

A proposition was made to the Sabine State Bank & Trust Company, of Many, defendant herein, that it take over the assets of the Zwolle bank, assume its liabilities, and operate it as a going concern. This the defendant bank refused to do unless certain concessions were agreed to by both the stockholders and the depositors, as it was evident that the liabilities, of the Zwolle °bank exceeded its assets. The stockholders were willing to surrender whatever interest they had, and one of them, Mr. Towery, agreed to waive his deposit account, amounting to $10,000. But this waiver did not sufficiently reduce the liabilities of the failing bank, and it demanded that in addition the other depositors agree to a reduction of their deposit accounts to the extent of some 50 per cent. A great many, but not all, of the depositors voluntarily agreed to a reduction of the amounts due them, and authorized the bank examiner to charge their accounts on the books with such amounts as they were willing to surrender, and the bank examiner did so. The liabilities of the failing bank were thereby so reduced that the defendant bank agreed to take over its entire assets and assume its liabilities.

But, before the deal was consummated, the bank examiner called to the attention of Mr. Knott, president of the defendant bank, who represented it all through, and Mr. Towery, who represented the failing bank, that there were two deposit accounts shown on the ledger which had not been reduced. These were the accounts of L. B. Gay, tutor, in the amount of $1,380, and J. R. Pilcher, tutor, in the amount of $4,-776.53. The bank examiner therefore advised Mr. Knott and Mr. Towery that, as these funds were on deposit to the credit of Mr. Gay and Mr. Pilcher in their fiduciary capacities, no reduction thereof could be made without an order of court, and that no such order had been obtained and presentéd to him. It was learned that Mr. Eraser was attorney for both parties, and the bank examiner, Mr. Knott, and Mr. Towery arranged a consultation with him looking to the proposition of having some reduction made in these accounts along with the others. Mr. Fraser was of the opinion that it would be to the interest of all the depositors — these tutors as well as the others — to make the reductions demanded in order to make the proposition attractive to the defendant, in taking over the affairs of the failing bank, and he agreed to make application to the court for an order authorizing the tutors to make the concessions. Upon Mr. Fraser’s agreeing to do that, the bank examiner consented to make the reductions on the books, provided that Mr. Knott, who represented the defendant bank, was willing that that should be done. Mr. Knott and Mr. Towery, after consultation with Mr. Fraser, the attorney, told the bank examiner that they thought that, with Mr. Fraser’s recommendation, the court would order the reductions made, and that they were satisfied to proceed.

Accordingly, the bank examiner wrote out two slips which were filed in the records of the bank as vouchers. These slips are as follows:

“Debit L. B. Gay, Tutor,
“20% Deposit donated as a bonus to assist in the sale of the Bank of Zwolle as per instructions his attorney, R. A. Frazer, $276.60.”
“Debit J. R. Pilcher, Admx. (Tutor)
“20% Deposit donated as a bonus to assist in the sale of the Bank of Zwolle as per instructions his attorney, R. A. Frazer, $955.00.”

The bank examiner then proceeded to charge .each of the accounts with the amounts specified. This was done on March 9th, and, after the close of banking hours on that day, the deal between the stockholders of the Zwolle bank and the defendant bank was consummated, by which the stockholders of the Zwolle bank sold and delivered to defendant all of the assets of every character and description belonging to the Zwolle bank, this sale being made by virtue of a resolution adopted under the provisions of section 3, Act 193 of 1910.

On the following day, the defendant bank opened the doors of the Zwolle bank and began to operate it as a going concern.

Subsequently, the defendant bank admitted its liability to these tutors to the extent of the total credit as- shown by the books, less the 20 per cent reduction as made by the bank examiner. The present suits are against the defendant bank for the total amount of the deposits, but, inasmuch as the defendant admitted its liability for these amounts, less the 20 per cent reduction, only the latter amounts are involved in this suit.

It is perfectly clear that the reductions made by the bank examiner were illegal and not binding upon the minors. The funds belonged to the minors and were held by the tutors in their fiduciary capacities. The tutors themselves did not give assent to these reductions, and, even if they had, it would not have been binding, because a tutor cannot transact or compromise for his wards without being authorized by the judge. Civil Code, art. 3072. It is conceded that the defendant bank, in taking over the assets of the Zwolle bank as it did, became liable to the depositors for the full amounts shown on the books-, less such reductions as were legally made. It follows, therefore, that defendant is liable to these tutors for the full amount of these deposit accounts as they stood on the books prior to the transfer. There was no order of court authorizing these reductions before the transfer, nor has there been any since. The record shows that Mr. Fraser, representing the tutors, applied to the court for such order, which was refused by the judge, and that he ordered a family meeting to deliberate and advise as to whether the reductions should be made, and the family meeting declined to so recommend.

But there is another angle to the case out of which has arisen the serious controversy before the court. In the act of transfer by the stockholders of the Zwolle bank to the defendant bank, there is this stipulation: “It being also understood that the signers hereof (being the stockholders of the Zwolle bank) obligate and bind themselves personally to pay to the Sabine bank, or its successor, all valid debts or claims due by the Bank of Zwolle to any creditor not shown on the hooks, if presented for payment within three years from the date hereof.’’

When the present suits were filed against the defendant bank, it called J. P. Towery, W. H. Pearson, S. H. Porter, A. C. Haley, R. L. Gay, and, T. Laroux, who signed the act of transfer, in warranty; the bank’s contention being that they were liable to it for this 20 per cent reduction in these deposit accounts, on the theory that, when the transfer was made, these accounts had been reduced, and that therefore the 20 per cent now in controversy was not shown on the books of the bank. The defense of the warrantors is that these amounts did show on the books ot the bank, and that they are not bound for that reason.

The district judge found and held that the defense of the warrantors was well founded, and we fully concur in that view.

The defendant bank accepted the transfer with full knowledge of the total amount due these minors and with knowledge that the reductions which had been made by the bank examiner were unwarranted and unauthorized, and, after being advised that no reduction could be made without an order of the court, the defendant bank claims that it was misled by Mr. Eraser, the attorney. It claims that Mr. Eraser guaranteed that the reduction would be made by order of the court, but we find to the contrary. Mr. Buckner, the bank examiner, and Mr. Knott, president of the defendant bank, both testified that they understood that Mr. Fraser guaranteed the reduction, but on cross-examination they admitted that they might be mistaken. Mr. Eraser testified positively that all he said was that he would make application to the court for such order and would do what he could to get it, and his letter to the parties clearly states that that was all he could do. Bu, even if Fraser did make such guaranty, the defendant knew that the attorney had no authority to bind the minors in that respect. The bank accepted the transfer with full knowledge of all the facts and with knowledge of the law applicable to such cases. It therefore took chances on getting the reduction. Furthermore, it is not clear that the bank would not have accepted the transfer, even though it knew the reductions would not be made. Mr. Knott was asked if he would have refused to consummate the deal, without these transfers and he said, “I would not say that.”

The liability to these tutors was shown on the books of the bank when the transfer was made. That liability was for the full amount on deposit, and not that amount, less the illegal reduction made. These warrantors are liable to the defendant bank for only such debts of the Zwolle bank as are not shown on the books of the failing bank.

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