text:
    No. 2531
    Second Circuit
    HEDGES v. SCOTT & SALTER
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Account—Par. 5; Error and Mistake. — Par. 3.
    “Where the account has been closed and settled, no suit can be maintained contrary to the balance, without alleging error or fraud in the settlement.”
    Heines vs. Prutsman, 162 La. 587, 110 So. 765.
    2. Louisiana Digest — Evidence—Par. 58. 352.
    Where there is no positive testimony that plaintiff received and used all the gravel which defendants claim was used by him and charged against them, defendants fail to make out their case on this defense.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by P. T. Hedges against Scott and Salter.
    There was judgment for plaintiff 'and defendant appealed.
    Judgment affirmed.
    M. L. Dismukes, of Natchitoches, attorney for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit against W. F. Scott and J. F. Salter to recover the sum of $1005.34, which, he alleges, is due him as a balance for work done by him as a sub-contractor under defendants on a public highway in Natchitoches Parish.

Scott and Salter were ordinary partners, and judgment was asked against each for one-half of the debt. Scott settled his part of the debt and the suit was dismissed as to him.

There was judgment in the District Court against Salter for one-half of the debt and he has appealed.

OPINION

Scott and Salter, ordinary partners, contracted with the State Highway Commission in 1923 to build a certain road in Natchitoches Parish. They sublet to the plaintiff, Hedges, the building of the concrete bridges and culverts on that part of the road which they were to build, the exact terms of the sub-contract not being disclosed.

Scott and Salter paid Hedges certain amounts as the work progressed. When Hedges completed his work, he claimed that the contractors were due him approximately $4008.00, and not being paid promptly, he filed and recorded a lien against the road. At that time the Highway Commission had not made final settlement with Scott and Salter.

The Highway Commission refused to pay the balance on account of Hedges’ lien having been filed.

There was some disagreement, it seems, between Hedges, the sub-contractor, and Scott and Salter, the contractors, as to the amount due Hedges.

Scott and Salter wanted the lien can-celled so they could settle with the Highway Commission.

On • October 15, 1923, the parties got together and made final settlement and adjusted their differences by way of compromise, which was reduced to writing as follows:

“State of Louisiana,
“Parish of Natchitoches.
“October 15, 1923.
“This agreement entered into this the 15th day of October, 1923, between Scott & Salter, contractors, and P. T. Hedges, subcontractor, on project 100 of the Jefferson Highway, witnesseth:
“It is ■ agreed and understood by both parties on settlement this day that Scott & Salter owe P. T. Hedges on this project $3447.64.
“It is agreed further that this money will be paid to P. T. Hedges when the state makes its final settlement on that project.
“Witnesseth:
“W. F. Scott Signed: Scott & Salter
“John T. Dwyer. By J. T. Salter
P. T. Hedges.”

As .soon as the settlement was made and the above instrument was signed, Hedges had his lien cancelled.

Later, the exact date not being shown, but probably in December, Scott & Salter, by Scott, gave Hedges a check for $3447.64 in payment of the amount agreed upon, but payment of the check was stopped by Scott because Salter told him he had ascertained that Hedges had been furnished certain gravel for use in constructing the bridges and culverts by the Highway Commission which had been charged to Scott & Salter by the Highway Commission and by it deducted from the amount due them on final settlement, and that the amount, $1228.37, should be charged back to Hedges for the reason that it was not taken into consideration at the time the settlement was made.

On December 10, 1923, after payment of the check for $3447.84 had been refused by the bank at the request of Scott, Scott & Salter gave Hedges another check for $2442.30, which was paid, leaving a balance due, according to the settlement, of $1005.34, which is the amount sued for.

At the bottom of the sheet on which the above agreement is is written by Hedges the following:

“12/10/1923. Paid by check $2442.30.”

Plaintiff contends that this was a payment on the amount due and that he intended to credit defendants with that amount.

Defendant Salter, on the contrary, contends that when it was discovered late in November that Hedges had obtained gravel from the Highway Commission which had been charged to Scott & Salter, another settlement was made with Hedges by which he agreed to accept $2442.30 in full settlement.

Plaintiff, in his petition, alleged that a dispute arose between him and defendants as to the amount due under the contract and that—

“after due discussion, checking, figuring and deliberation, the said Scott & Salter came to and entered into a compromise settlement and agreement with petitioner in words and figures to-wit:”

Then follows a copy of the agreement.

This is Article 6 of the petition.

Defendant in answer admitted the allegations of that article as written.

At the inception of the trial counsel for plaintiff objected to the introduction of any testimony seeking to contradict or vary the written compromise entered into on October 15th, which objection was over'ruled by the court and bill was reserved.

It is admitted that the parties went into and discussed fully all the differences between them, and we think they intended that the said written agreement should foreclose the question as to the amount due Hedges. Hedges testified, and it is not disputed, that in order to reach a settlement he deducted from the amount which he claimed, something like $600.00. The agreement and settlement was executed. Hedges cancelled his lien, which enabled defendants to get settlement with the Highway Commission.

It is not contended that Hedges, in making the settlement, was guilty of any fraud or deceit, or that he wilfully withheld from defendants any material fact within his knowledge, nor do defendants make a direct attack upon the settlement on the ground that there was an error in calculation. C. C„ Arts. 3071, 3078, 3079, 3083.

In answer, defendant alleged:

“That the agreement entered into on Oct. 15th 1923, described in Art. VI of the petition, was executed in good faith by all parties and was entered into for the purpose of deferring a final settlement between them until the ‘state makes a final settlement on that project.’ That large sums had been paid plaintiff by defendants and it was uncertain as to just what balance may be due him under his contract, and final settlement was deferred pending a final settlement from the Commission.”

The document evidencing the settlement is clear and unambiguous. A reading of it will disclose the error into which counsel has fallen. It is recited that—

“It is agreed and understood by both parties on settlement this day that Seo-c. & Salter owe P. T. Hedges on this project $3447.64.”

That is as definite as language can express it.

It was not entered into, as alleged by defendant,

“for the purpose of deferring a final settlement between them until the ‘state makes a final settlement on that project.’ ”

It was a complete settlement on that date, and was agreed—

“that this money ($3447.64) will be paid to P. T. Hedges when the state makes its final settlement on that project.”

It is perfectly clear that the parties intended to make and dicf make a final settlement on that date. There was nothing deferred, except the payment of the amount agreed to b.e due, which payment was to be made when the State settled with defendants.

Carrying out his agreement, Hedges cancelled his lien and waited for the payment. To carry out that agreement defendants, in December, two months later, gave their check for the amount, but payment thereof was stopped.

In the absence of a direct attack upon that settlement by defendants, on the ground of error in calculation, fraud or deceit, it is difficult to see how defendants can escape liability.

“Where the account has been closed and settled, no suit can be maintained contrary to the balance, without alleging error or fraud in the settlement.”

Succ’n of Marr, 23 La. Ann. 718; Sloan vs. Stevenson, 24 La. Ann. 278; Haile vs. McGee, 29 La. Ann. 350; Woodley vs. Atkins, 159 La. 992, 106 So. 540; Heines vs. Prutsman, 162 La. 587, 110 So. 765.

We might rest our opinion here. But, as the lower court let in testimony pro and con, we have considered the case from defendant’s standpoint, that is, that after the settlement of October 15th was made, he discovered that Hedges had obtained gravel from the Highway Commission for which he had not paid, and that this gravel, amounting to $1228.37, had been pharged to Scott & Salter, and deducted from their settlement and that Hedges should be charged back with this amount. Therefore, instead of defendants owing Hedges Hedges owed them.

If Hedges got gravel from the Highway Commission which was charged to defendants, the burden was upon defendants to show that. This they failed to do. On a statement made out by the Highway Commission to Scott & Salter we find this:

“Amount due Louisiana Highway Commission by Contractor, to be deducted from final estimate, $1228.37.”

This is for gravel, and is the amount that Salter says should be charged to Hedges. But there is nothing to show that Hedges got and used this gravel. Scott & Salter were using gravel to build the road. Hedges was constructing the bridge and culverts and also used gravel. Hedges says that Scott & Salter got gravel from the same source, and they do not deny this. Hedges says also that he got the greater portion of the gravel he used from the Rapides Gravel Company. He admits that he did get some gravel from the Highway Commission, but says that the amount for that was deducted when he settled on October 15th.

Salter says he knew nothing about this item until November 23, 1923, when he got his final estimate and settlement, which he filed in evidence.

All that shows is this:

“Less balance due for gravel and sand furnished the contractor by the Louisiana Highway Commission, $1228.37.”

In view of Hedges’ testimony that he did not get all this gravel and that what he did get was figured in the settlement, and in the absence of any positive testimony that he did get and use all of it, we must hold that defendant failed to make out his case on this point.

There are other points raised hy counsel in his earnest oral argument and his brief, but we think it unnecessary to discuss them.

We are convinced from the evidence that defendant owes plaintiff the amount sued for and as awarded by the District Court.

Scott, Salter’s partner, recognized that he was due Hedges something, and settled his part of the debt, and the suit was dismissed as to him.

The judgment is affirmed with costs.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2427
    Second Circuit
    LOUISIANA AND ARKANSAS RAILWAY CO. v. BOBO; LAWHORN AND FORD SUBSTITUTED AS DEFENDANTS
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Slander of Title — Par. 10, 11; Prescription — Par. 56, 57.
    Where the plaintiff in a slander of title suit has the better title and also prior constructive possession, the burden of proof is on the defendant to show the exact limits of its actual possession of any portion of the property covered by plaintiff’s title, as well as to show that such possession was open, unequivocal and continuous for the period of the prescription pleaded.
    Appeal from the Second Judicial District Court, Parish of Webster. Hon. J. S. Richardson, Judge. ,
    Action by Louisiana and . Arkansas Railway Company against Ira W. Bobo. Z. R. Lawhorn and John McW. Ford, substituted as defendants.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    A. L. Burford, of Texarkana, and White, Holloman and White, of Alexandria, attorneys for plaintiff, appellant.
    Charles M. Roberts, of Minden, attorney for defendants, appellees.
   WEBB, J.

The plaintiff, Louisiana & Arkansas Railway Company, instituted this action against the defendant, Ira W. Bobo, for slander of title to a small parcel -of land, and defendant in answer set up title to the property, claiming that he and his authors in title had been in possession of the property for more than ten years under titles translative of property, and pleading the prescription of ten years.

The evidence shows that the immediate titles as well as the titles through which both parties claim the property, cover the area in conflict as well as other area, and that both parties took actual possession under their titles of a part of the area covered by their titles, but that neither of the parties had actual possession, by enclosures of or constructions upon, any part of the area in contest, unless the fact that there was a roadway over the area in contest could be considered as actual possession of one or the other, which will be considered later.

The immediate titles of both parties as well as the titles of the persons through whom they claim, are in form translative of property, but the title of plaintiff is of prior date to that of defendant, and while neither of the parties have traced their titles back to the Government, the evidence shows that the immediate author in title of the plaintiff was the husband of the person through whom defendant deraigns his title, and the evidence shows that plaintiff took possession under its title prior to the time title was made by the wife of the author of plaintiff’s title, and defendant having the position of a plaintiff in a petitory action, and carrying the burden of proof, the plaintiff had the better record title.

In Moore Planting Co. vs. Morgan’s L. & T. R. R. & S. S. Co., 126 La. 840, 53 So. 22, where the law governing the rights of parties claiming ownership of property covered by their respective titles of which neither had actual, physical possession, was exhaustively considered, the court quoted with approval from 1 Cyc. 1130, as follows:

“Where the title to land is in conflict, and each claimant is in possession of a part of the tract, in controversy, the one having the better title, has by his occupation, constructive possession of the whole tract except that which is actually in possession of his adversary. The legal seizin as to the unoccupied portion of the tract follows the legal title, and the pedis possessio alone creates an adverse title.
“As against one with actual possession under a valid title, prescription is acquired only by actual adverse possession, continuous, unequivocal, uninterrupted and as owner or on behalf of one assuming to be owner. In the absence of such possession, the civil possession of the original owner is presumed to continue.”

And also from Hunnicut vs. Peyton, 102 U. S. 368, 26 Law Ed. 113, where it was said:

“It is true that when a person enters upon unoccupied land under a deed or title, and holds adversely, his possession is construed to be coextensive with his deed or title; and the true owner will be deemed to be disseised to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner be at the time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this though the owner’s actual possession is not within the limits of the defective title. The reason is plain: both parties cannot be seized at the same time of the same land under different titles. The law, therefore, adjudges the seisin of all that is not in the actual occupancy of the adverse party to him who has the better title.”

The plaintiff here having the better title, and also having prior constructive possession, the burden of proof was upon the defendant to show the exact limits of its actual possession of any portion of the property covered by plaintiff’s title, as well as to show that such possession was open, unequivocal and continuous for the period of the prescription pleaded.

The only evidence as to asserted possession is that there was a road on the property, but the evidence does not show the area covered by the road, or by whom it was built, but it shows that the road was used as a street or passageway in the town or village, which we do not think was sufficient to establish adverse possession in the defendant of any portion of the property in contest.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed and that plaintiff, Louisiana & Arkansas Railway Company, have and recover judgment against defendant Ira W. Bobo, and against Z. R. Lawhorn and John McW. Ford, substituted as defendants, recognizing plaintiff as the owner of the following described land situated in Webster Parish, Louisiana, viz:

“A strip of land 35 feet wide by 210 feet long and a strip of land 10 feet wide by 105 feet long, situated in tbe Northwest quarter of the Northeast quarter of Section seventeen Township twenty-one North Range ten West, said land being situated in the town of Cotton Valley, Louisiana, and more particularly described as follows:
“Commencing at the point of intersection of the section line between Sections eight and seventeen, Township twenty-one, North, Range ten West, with the eastern line of the right of way of the Louisiana & Arkansas Railway Company, as a point of beginning; thence run east thirty-five feet along the section line between sections eight and seventeen, to a stake; thence in a southerly direction parallel to the, right of way of the Louisiana & Arkansas Railway Company, about two hundred and ten feet to the point of intersection of the line dividing the lots of said land belonging to J. J. Crow and Sam Coyle; thence in a westerly direction about twenty-five feet along said dividing line between the property of J. J. Crow and Sam Coyle to a stake ten feet distant from the eastern line of the right of way of the said Louisiana & Arkansas Railway Company; thence in a southerly direction parallel to the right of way of the Louisiana & Arkansas Railway Company about one hundred and five feet to the point of intersection with the line dividing the plots belonging to Sam Coyle and the Louisiana & Arkansas Railway Company, the plot of land belonging to the Railway Company being the one on which the section house at Cotton Valley is situated; thence in a westerly direction along the dividing line between the property of Sam Coyle and the Louisiana & Arkansas Railway Company about ten feet to the point of intersection of the eastern boundary of the right of way of the Louisiana & Arkansas Railway Company; thence in a northerly direction following the eastern boundary of said right of way three hundred and fifteen feet to the point of beginning.”

It is further ordered, adjudged and decreed that the plaintiff have and recover judgment against the defendant for all costs.


author: ODOM, J.

text:
    No. 2507
    Second Circuit
    WHITLATCH v. MILWEE
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Reconvention — Par. 19; Landlord and Tenant — ;Par. 67, 69.
    Where defendant fails to show the amount of damage claimed in his reconventional demand for water damage to household goods in leased premises, re-conventional demand must be rejected.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. E. Stephens, Judge.
    Action by William T. Whitlatch against T. F. Milwee.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dickson and Denny, of Shreveport, attorneys for plaintiff, appellee.
    Crow and Coleman, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On April 10, 1924, plaintiff leased to defendant a residence in the City of Shreveport for one year beginning April 15, 1924, for $600.00, to be paid monthly, and took twelve notes each for $50.00.

Defendant moved into the house at once and occupied it until some time in the early part of 1925, when he abandoned it.

He paid seven of the twelve notes. Upon his refusal to pay the other five notes plaintiff brought this suit and had defendant’s household furniture provisionally seized.

Defendant, in answer, admitted that he leased the premises for one year, and signed the notes sued on, but resists the demand on the ground that plaintiff failed to keep the leased premises in repair and in condition for the purposes for which it was leased:

“That said premises became practically untenantable and uninhabitable during said period of time,"

and he set up specifically that the roof became leaky and that some of his bedding, rugs, etc., got wet when it rained, and he was thereby damaged $250.00 for injury to his property

“* * * and because of the annoyance and inconvenience of your defendant and his family.”

He alleged that it became necessary for him to make some repairs on the dwelling “ * * * at a heavy expense to defendant, all of which repairs were necessary repairs which the plaintiff, being the lessor, was bound under the law to make; that said repairs made by your defendant will fully offset any amount which your defendant may be due the plaintiff for rent, which repairs, labor and materials done and furnished by your defendant he specially pleads in compensation and set off of plaintiff’s demands.”

In reconvention he claims $50.00 attorney’s fees, $50.00 for loss of time employing counsel and attending court, $250.00 for injury) and damage to his household goods caused by water due to the leaky roof, and “because of the annoyance and inconvenience to your defendant and his family,” and $500.00 for humiliation on account of the seizure of his goods.

The lower court rendered judgment for plaintiff as prayed for and rejected defendant’s reconventional demands. Defendant appealed.

OPINION

Counsel for defendant, in their brief, say:

“The main and only seriously controverted question involved in the case is the question of offsets, pleaded by the defendant, and his reconventional demand.”

Adopting counsel’s view of the issues involved, which, we think, is correct, we have reached the conclusion and hold that .the judgment appealed from is correct.

The burden qf defendant’s complaint is that the roof of £he dwelling leaked and that when it rained his household goods got wet and were damaged, and, further, that he made expensive repairs on the property which it was the duty of the lessor to make, which repairs more than offset the amount of rent due.

As to the repairs which defendant alleged that he made, he admitted on the stand that he made no repairs to the property except some minor adjustments to plumbing fixtures for which he made no charge, and about which he said nothing to plaintiff. He. does not even intimate the value of the work which he says he did, from which we infer that he made only such minor repairs or adjustments to the plumbing which he understood it was the custom of lessees to make. The testimony shows that at one time during the lease, the wife of defendant telephoned plaintiff that the plumbing in the bathroom was out of repair and that plaintiff at once sent a plumber to make the repairs and paid the bill, amounting to $9.05.

So that the issue is finally narrowed down to the question of the damage to defendant’s furniture on account of leaks in the roof of the dwelling.

We are impressed that defendant did not at any time during the lease seriously consider the matters which he set up in defense of this suit.

He testified that he did not at any time personally complain to plaintiff that the house leaked or that his property had heen damaged. He testified that the only time he said anything to plaintiff about the roof was the day on which he signed the lease contract, and then “I did not press it very hard, hut it was supposed to be taken care of.” He went into the house, lived there for something like ten months, paid seven months’ rent, made no complaint, no repairs, and asked for no reductions.

Having failed to pay the rent for notes due November, December and January 15th, respectively, plaintiff wrote defendant on January 27, 1925, calling his attention to the fact that these notes were past due and said:

“I will therefore insist that you arrange to take up the three outstanding notes at once, otherwise I will be obliged to give them to my attorney for collection. You must pay these notes by February 1st in order to save the 19% attorney’s fees and ■ avoid being sued.”

Defendant testified that upon receipt of that letter he called plaintiff over the telephone and told him that it was not necessary to take action, and upon being asked if he at that time made any complaint about the damage to his household goods on account of the leaky roof, he replied:

“No, I did not make any at that time.”

The plaintiff testified that defendant called him over the ’phone after receiving the letter, and told him: “He would settle the whole matter within a few days.”

It seems reasonable that if defendant had any serious ground of complaint he would have urged it at that time, as he was threatened with suit on the notes; but he made no complaint and said nothing about the alleged leaky condition of the roof and the damage to his goods until after this suit was filed on February 12, 1925, and then made none, except in his answer, which was filed on February 26th.

It is also significant that defendant, in his answer, alleged that he had made expensive repairs to the building which more than offset the amount of rent due, and yet as a witness he admitted that he made no repairs of any consequence, and made no claim for any.

As to whether the roof leaked, there is serious dispute. Plaintiff testified that he had the roof repaired before defendant moved in, and he called as a witness Mr. Griffin, a building contractor, who said that plaintiff employed him to repair the roof and that he did so and thought it was in good condition when he left it.

Plaintiff also called as witnesses Mr. Teagle and Mr. Smith, who testified that they went with plaintiff to the house after defendant moved out, on one occasion immediately following a heavy, blowing rain, and that they carefully inspected the premises and found no evidences of leaks.

On the other hand, defendant’s wife and her father, who lived there, both testified that the roof leaked badly and that the rugs and the bedding got wet on several occasions.

If it be conceded, however, that the roof did leak and that defendant and his family were on that account made to suffer some inconvenience, and that his goods were damaged to some extent, and if it be conceded as counsel for defendant argue, that under the law plaintiff is responsible for the damage, the testimony as to the amount of damage is not such as to enable the court to. render a judgment therefor.

Plaintiff’s wife and her father testified that the beds and the rugs got wet and that it was necessary to put them out to dry, that some of the bedding faded, and that the rugs were discolored; but neither pretended to estimate the damage to the bedding or the rugs.

Mrs.. Milwee said that she was having the rugs “reworked” at a cost of $75.00, but it is not clear that the rain caused all the damage to them. She had three rugs which she said had been in use several years. They were worth, when new, she said, about $40.00 each. She was asked: “Well, what is the appearance of them since it rained qn them?” and she replied: “Well, one is faded and old looking.”

Mrs. Milwee’s father said something about the piano getting wet and that she was having it gone over; but Mrs. Milwee said nothing about the piano being damaged by the rains, and it seems reasonable that if she had thought so she would have said so.

There is not sufficient testimony in the record as tq the amount of damage to enable the court to render a judgment.

Counsel say in brief, after citing and discussing the law which they consider applicable, that the court should allow defendant “the full amount of what the proof shows his losses were;” but “there’s the rub.” The proof does not show what his losses were, so that even if the law cited is applicable, the defendant’s case falls for lack of proof.

This dispenses with the necessity of discussing the law points raised in counsel’s brief.

Judgment affirmed with costs.


text:
    No. 3052
    Second Circuit
    THE AMERICAN NATIONAL BANK v. OWENS PEGUES AND PEGUES, Garnishees ALEXANDRIA CONTRACTING CO., Third Opponent
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Alienation—Par. 16; Attachment — Par. 27, 35.
    An agreement whereby a third person should be paid all sums of money that might be collected by the attorneys of the first party from a railway company does not vest title to the proceeds in the third party but is merely an order to the attorneys to dispose of the proceeds when collected. Therefore, an attachment by creditor of first party of these proceeds is good.
    Appeal from the Eleventh Judicial District Court, Parish of DeSoto. Hon. Hal A. Burgess, Judge.
    Action by The American National Bank against S. H. Owens. Pegues and Pegues, garnishees. Alexandria Contracting Company, third opponent.
    There was judgment for plaintiff and third opponent appealed.
    Judgment affirmed.
    Craig, Bolin and Magee, of Mansfield, attorneys for plaintiff, appellee.

      Parson and Colvin, of Mansfield, attor .neys for third opponent, appellant.
   ODOM, J.

The plaintiff bank brought suit against S. H. Owens to recover certain amounts alleged to be due on promissory notes.

Alleging that the defendant, Owens, was then a non-resident of the state and that Pegues & Pegues, attorneys, domiciled in DeSoto parish, we.re indebted unto the defendant or had money in their possession belonging to him, plaintiff procured the issuance of -a writ of attachment and had seized in the hands of said Pegues & Pegues whatever property or funds they had in their hands or under their control belonging to the defendant.

In answer to interrogatories propounded to them as garnishees Pegues & Pegues answered that at the time the service of the interrogatories was made on them they had $200.00

“* * * which we originally collected for the defendant in this suit (evidently referring to another suit) but prior to the time that we collected this money, the defendant instructed us to pay the amount that we collected out of the claim that we had for him against the Texas & Pacific Railway Company, over to the Alexandria Construction Company of Alexandria, La., as we understood that they had a chattel mortgage on the mules that the claim grew out of. About the time that we collected this money as aforesaid, the defendant instructed us to hold same until the Alexandria Construction Company convinced us that he was indebted unto them to the extent of $200.00. We have been waiting for the Alexandria Construction Company and the defendant to adjust their differences before paying the money over to the Alexandria Construction Company.”

These answers were filed by the gar'nishees on February 14, 1927.

On April 13, 1927, the Alexandria Construction Company intervened in said suit by way of third opponent, alleging that said sum of money now in the hands of the garnishees

“* * * was received by the said Pegues & Pegues from the Texas & Pacific Railway Company as payment and settlement by said Railway Company of its liability to S. H. Owens growing out of the death of certain livestock owned by said S. H. Owens in an accident on the right of way of said railroad in the parish of Red River, Louisiana.
“That at the time of the killing of said livestock the said S. H. Owens was in■debted unto your appearer, and as security therefor your appearer held a chattel mortgage against said livestock in the sum of one thousand ($1000.00) dollars.”

It is further alleged that said Owens employed the law firm of Pegues & Pegues to represent him in the collection of said claim against said Railway Company for killing said livestock

“* * * and that during the pendency of said claim, and prior to the service of the writ of garnishment herein, a verbal contract was entered into between the said S. H. Owens and your appearer, represented by C. E. Ransbqttom, its president, by the terms of which the said Owens assigned and set over unto your petitioner as part payment of, and to be credited on the amount due by the said Owens to your petitioner, all of the sums of money that might be collected by the said Pegues & Pegues from the said Texas & Pacific Railway Company; and that at said time notice of the assignment and transfer of said sums was given to and accepted by said Pegues & Pegues, and said Pegues & Pegues then and there consented to be bound by said contract.
“Your petitioner shows that subsequent to the time of said transfer your petitioner requested the said Pegues & Pegues to pay over to it the proceeds held by said firm of the claim collected by it from the Texas & Pacific Railway Company Under the claim above referred to, but that the said Pegues & Pegues refused to do so, for the reason that the said S. H. Ownes had previously notified the said firm to withhold payment of the same to your appearer, as set up in the answers to the interrogatories by said Pegues & Pegues.”

Intervenor prays for judgment against the defendant Owens

“* * * that under and by virtue of the transfer and assignment to your appearer, as above set forth, your appearer is entitled to be paid the amount in the hands of said Pegues & Pegues in preference to the plaintiff herein.”

The plaintiff filed an exception of no cause of action to intervenor’s petition, which was sustained, and intervenor prosecutes this appeal.

OPINION

This case comes up on the pleadings alone, and the only question presented is this:

Do the allegations of intervenor’s petiiton show that it had clear title to the money seized in the hands of Pegues & Pegues, attorneys?

If the money in the hands of the attorneys was the property of Owens, it was subject to attachment by his creditors.

The plaintiff bank attached it as his property. Its attachment conferred upon it a privilege on the property and its claim must prevail, unless intervenor can show that the money, when attached, belonged to it and not to Owens, the defendant.

It therefore follows that unless the allegations of intervenor’s petition, which are taken for true, show that said money belonged to it, and not to Owens, no cause of action is shown.

Intervenolr’s petition shows that its debtor, Owens, had a claim against the Texas & Pacific Railway Company for stock killed and that he placed this claim in the hands of Pegues & Pegues, attorneys, for collection. Intervenor does not allege that the claim was transferred or assigned to it but, on the contrary, alleges that during the “pendency of the claim,” that is, while it was in the hands of the attorneys for collectoin, a verbal contract was entered into between it and said Owens

“* * * by the terms of which said Owens assigned and set over to your petitioner as part payment of, and to be credited on the amount due by the said Owens to your petitioner, all of the sum$ of money that might he collected hy said Pegues & Pegues from the said Texas <6 Pacific Railway Company.” (Italics, ours.)

It is clear from intervenor’s allegations that what Owens owned at the time of the alleged transfer, was the claim against the Railway Company. That was property which could have been validly transferred by Owens to intervenor and its title thereto would have been complete if and when due notice of the transfer was given to the Railway Company.

If the claim itself had been transferred to intervenor, it would have owned the proceeds when collected. Not having acquired title to the claim against the Railway Company, intervenor acquired no title to the proceeds.

When Owens placed the claim in the hands of Pegues & Pegues, attorneys, for collection, they became the agents of Owens for the collection thereof, and the acts of the attorneys were the acts of Owens. The attorneys were never the agents of intervenor, but acted all through for Owens. When they collected the claim, they collected for Owens, and the proceeds went into their hands as the property of Owens.

Now, the question is,, did the agreement between Owens and the intervenor to the effect that the attorneys should pay to intervenor

“* * * all such sums of money that might be collected by the said Pegues & Pegues from the said Texas & Pacific Railway Company”

divest Owens’ title to said proceeds when collected and vest title thereto in the intervenor?

We do not think so. The alleged transfer was not such in fact. The most that can be said of it is, that it was an order to the attorneys directing them how to dispose of the proceeds when collected. The attorneys agreed to make such disposition of the proceeds when collected as was directed by Owens, that is, to pay the same to intervenor. But that agreement on their part did not affect Owens’ title to the money collected. The money in the hands of the attorneys belonged to their client, Owens, and was subject to seizure by his creditors.

In the case of Wilson & Co. vs. Lizardi, 15 La. 255, it was held, to quote the syllabus:

“Where the plaintiff debtor placed drafts in the hands of an agent for collection, with orders to collect and remit the proceeds to the plaintiff, and in the meantime another creditor attached these funds in the hands of the agent: Held, that the attachment is good, and that the funds are liable to be attached by other creditors, until placed .beyond their reach by remittance.”

In the case of Chaffe & Sons vs. Heyner, 31 Ann. 594, (see page 621) Justice Marr said:

“In Wilson vs. Lizardi, 15 La. 255, a debtor placed drafts for collection in the hands of his factors in New Orleans, with instructions to remit the proceeds to his creditors in London. Plainly neither the title nor the possession, nor the right of possession, passed to the London creditors; and. the drafts and the proceeds in the hands of the factors, the agents of the debtor, were subject to attachment at the suit of his other creditors.”

In the case of Robertson, Hudson & Pulliam vs. Scales & Gibson, et ais., 15 La. Ann. 545, Scales & Gibson placed in the hands of their attorneys, Scales & Wallace, certain notes for collection and directed said attorneys to remit a certain amount of the proceeds when collected to Seaman, Peck & Co., a creditor. Before the notes were collected by the attorneys they were attached by garnishment in the hands of the attorneys by other creditors of Scales & Gibson. The court said:

“The question of law presented in the case is, whether the order given by Scales & Gibson to their attorneys, to remit, out of the first moneys collected, after paying the balance due Hardie .& Co., an amount sufficient to pay the promissory notes due plaintiffs, and the acceptance of this order by the attorneys, vested a right of property in the plaintiffs to the notes and accounts, or their proceeds, to an amount sufficient to pay the debt due them from the firm of Scales & Gibson.”

The court then pointed out the distinction between the case of an order to pay the proceeds of goods, merchandise or products to a third person, followed by the acceptance of the consignee or other person in possession with the assent of the said third person, and a case of an order

“* * * to pay the proceeds of a bill of exchange, or note, when collected, to a third party, followed by the acceptance of the. attorney, or other agent in possession of the holder, with assent of such party.”

And held that in the former case

“* * * the title to the proceeds passes by virtue of the order and its acceptance by the consignee, with the assent of the party for whose benefit it was intended, and the merchandise is no longer liable to attachment at the suit of creditors of the owner or consignor, although the goods remain unsold at the time of the attachment. In the latter case, it has been held, that the title to the proceeds of the note, or bill of exchange, does not pass by virtue of the order and its acceptance hy the attorney, or other agent, * * * And as to the case of an order for the proceeds of notes when collected, see Bank of Alabama vs. Krafts, et al., 18 La. 565, and also the case of Wilson vs. Lizardi, 15 La. 255.”

In cases of third opposition, the claimant cannot prevail unless he either owns or has a privilege on the property seized.

John Bouhede vs. John O. Aymes, Executors of McNeil, third opponents, 29 La. Ann. 274.

Livaudais vs. Livaudais, 3 La. Ann. 454.

Hickman vs. Thompson, 26 La. Ann. 260.

Code of Practice, 397, 401.

Under third opponent’s allegations it does not own the money in the hands of the attorneys.

The judgment appealed from is affirmed with costs.


author: MOUTON, J.

text:
    No.-
    First Circuit
    COMEAUX, ET ALS., v. BROUSSARD
    (February 15, 1928. Opinion and Decree.)
    (No Syllabus)

    (See Broussard vs. Broussard, on page .635.)
    Appeal from the Parish of Lafayette. Hon. W. W. Bailey, Judge.
    Action hy Emethilde Comeaux, et als., against Mrs. Odelia Broussard.
    ■ There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Kennedy and Dugas, of Lafayette, attorneys for plaintiff, appellant.
    DeBaillon and Meaux, of Lafayette, attorneys for defendant, appellee.
   MOUTON, J.

In this case for the reasons assigned in the case of Andre Broussard vs. same defendant, and consolidated herewith for trial, it is ordered adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 3150
    Second Circuit
    BAKER v. POLICE JURY OF CADDO PARISH, LA.
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Expropriation — Par. 78; Appeal — Par. 637.
    The finding of the trial court as to the amount of damage sustained hy - land owner due. to expropriating land for a road and abandoning an old road on his property for which he was given credit being insufficient, is increased.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by F. A. Baker against Police Jury of Caddo Parish, Louisiana.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for plaintiff, appellant.
    A. M. Pyburn; Thigpen, Herold, Lee and Cousin, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, F. A. Baker, alleging that the Police Jury of the Parish of Caddo, acting under section 3369 of the Revised Statutes, laid but a road or highway through his property and assessed the damages due plaintiff at four hundred dollars, institutes this action to increase the amount of the damages fixed by the Police Jury acting through the Jury of Freeholders, in which he alleges that the value of the land sought to be taken is twelve hundred and fifty dollars, and that the damages which will result from the construction of the road will amount to seven hundred and fifty dollars; consisting of the cost of building and maintaining fences along the roadway, and diminution of the value of the land.

The defendant answered, alleging that it had merely changed the location of the highway on the plaintiff’s property and the land covered by the old highway would be abandoned to plaintiff, and admitting that the damage had been assessed by Jury of Freeholders as alleged by plaintiff, and that the damages awarded were sufficient.

On trial, judgment was rendered in favor of plaintiff increasing the amount of damages to five hundred and sixty dollars and condemning and expropriating for road purposes the land included in the roadway as laid out by the Jury of Freeholders, and ordering the land covered by the old roadway abandoned, from which judgment plaintiff appealed, and defendant has answered the appeal, praying that the judgment be amended and the damages fixed at the amount awarded by the Jury of Freeholders.

The proceedings, as stated, were initiated under the provisions of the Revised Statutes, section 3369, et seq., but the report of the Jury of Freeholders selected to lay out the road, and assess the damages was not filed in evidence, and the parties apparently conceding that the Jury of Freeholders was bound to fix the damages under the general law relative to expropriating property for public use, have proceeded in determining their rights with relation to the general rule.

The damages claimed, as stated, are, the value of the land to be taken, and diminution of the value of the remaining property, the latter being based upon the cost of building and maintaining fences along the roadway, and the claim that a small portion of the land would be segregated from the balance of the tract owned by plaintiff, and rendered inaccessible, and plaintiff, while denying that the claim for ■ fences, etc., should be allowed, claims that in any event the benefit to result from the abandonment of the old road, should be deducted from the damages.

Conceding, without deciding, that the abandonment of the old road would be such a benefit as could be pleaded against the damages claimed, the burden of proof would be upon the plaintiff to show the benefit and its extent, and assuming that the plaintiff had a right or servitude on the land on which the old road was situated, the servitude would be limited to the extent of the width of twenty-five feet (R. S., Sec. 3371) in default of evidence to the contrary, and would not cover the area shown between the approximately parallel lines indicated by the fences along the old roadway, as shown by the map and plat filed in evidence, and the evidence is not sufficient to fix the value of the benefit claimed.

On the question of damages, while the evidence was conflicting as to the value of the land to be taken, varying from thirty-five to one hundred dollars, per acre, we are qf the opinion that the preponderance of the evidence supports the finding of the court, fixing the value at approximately fifty dollars per acre.

The cost of fencing should be allowed. (Street vs. N. O. etc. Rt. Co., 43 La. Ann. 116, 9 So. 15) and although plaintiff contends that the evidence offered by defendant showed that the cost was greater than he claimed, and that he should be awarded the greater amount, we find that the evidence to which plaintiff refers is not definite, and at most could be said to be a rather general statement tending to support of plaintiff, and that the amount for cost of fencing is fixed at four hundred dollars.

The evidence as to repairs, related to the necessity of replacing posts at a period estimated to be some ten or twelve years in the future, and we think it is too remote in fixing the diminution of value, and we also find that the evidence offered in support of the diminution in value of the land by reason of a portion thereof being segregated from the balance of the land of plaintiff, is too vague and indefinite to serve as the basis of a judgment, and further that the map and plan filed in evidence does not indicate that the property will be rendered less accessible by reason of the change in the roadway.

We find that thq damages shown amount to eight hundred and fifty dollars, and the judgment should be amended so as to increase the amount awarded from five hundred and sixty dollars to eight hundred and fifty dollars, and it is ordered that the judgment be thus amended and as amended affirmed at plaintiff’s cost.


text:
    No. 3119
    Second Circuit
    FORD v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

      1. Louisiana Digest — Automobiles—Par. 6; Negligence — Par. 31.
    No contributory negligence can be imputed to a child who was not of sufficient maturity to be held guilty of negligence in failing to appreciate the necessity of observing for himself the dangers of the crossing rather than relying upon the driver, a man of mature years, who had exclusive control of the truck.
    2. Louisiana Digest — Negligence—Par. 4; Parent and Child — Par. 6, 7.
    Where the evidence does not show negligence in plaintiff in permitting another the care and custody of his minor child nor in that party permitting his child to ride on the truck with the driver, he can recover for the. death of his infant child due to the negligence of another.

      3. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 41; Death by Wrongful Act — Par. 18.
    More, than nominal damages are allowed to a father for the death of his infant child even though he had contributed little to his support but had not abandoned him, the parents’ society, companionship and affection of the child in the case being fixed at a quantum of two thousand dollars damages.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Martin L. Ford against Chicago, Rock Island & Pacific Railway Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Crow and Coleman, of Shreveport, and S. L. Digby, of Ruston, attorneys for plaintiff, appellant.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee.
   WEBB, J.

This action was instituted by Martin L. Ford to recover damages for loss of affection, companionship and society, and earnings, and aid and comfort, sustained by the death of his minor son, Charles Ford, who was killed in the accident in which John Pylant, plaintiff in suit No. 3121, John Pylant versus Chicago, Rock Island & Pacific Railway Company, was injured, this day decided.

The pleadings in the suits, as to the negligence of defendant, as well as the defenses interposed, with the exceptions as to the latter, hereinafter noted, were the same, and they were consolidated for purposes of trial, and the facts found and stated in the opinion in the suit of John Pylant versus Chicago, Rock Island & Pacific Railway Company, as well as the ruling on the question raised as to the liability of defendant under the doctrine of the last clear chance, are applicable to the present suit.

The defendant in the present suit pleaded that plaintiff had given his minor son to J. E. Buckley, and also that the death of Charlie Ford was due solely to the gross negligence and carelessness of Charlie Ford and John Pylant, which negligence is also pleaded in the alternative as having contributed to the accident.

In addition to the facts stated in the opinion in the cause of John Pylant versus Chicago, Rock Island & Pacific Railway Company, the evidence established that the plaintiff, Martin L. Ford, had, several years prior to the accident, entrusted the care, and custody of his minor child, Charlie Ford, to J. E. Buckley, and that Buckley had, for some time prior to the accident, permitted Charlie to assist John Pylant, a man of about forty years of age, in delivering merchandise to customers of Buckley, Pylant using and driving a motor truck owned by Buckley in making the deliveries, and that at the time of the accident Charlie Ford was engaged in such work, riding on the seat with Pylant, and that at the time Charlie was thirteen years of age, and intelligent and capable for his age.

The defendant contends that plaintiff cannot recover for the following reasons:

First: That Charlie, the minor, was himself guilty of contributory negligence in failing to warn Pylant to stop the truck before going upon the track, or in failing to observe the approaching train and warn Pylant.

Second: That Charlie Ford, and Pylant, were co.-laborers engaged in the joint enterprise of delivering merchandise and the negligence of Pylant must be imputed to the minor.

Third: That in event it should be held that Charlie Ford was not guilty of contributory negligence or that the negligence of Pylant cannot be. imputed to him, that plaintiff entrusted the care of his son to Pylant and the negligence of Pylant should be imputed to plaintiff, and he should not be permitted to recover.

Fourth: That in any event thS. amount of recovery should be nominal.

(1) The basis of this position is, that the evidence establishing that Charlie Ford was thirteen years of age and intelligent, he was capable of being guilty of negligence; citing Westerfield vs. Levis, 43 La. Ann. 63, 9 South. 52; Lynch vs. Knoop, 118 La. 611, 43 South. 252; Cusimano vs. New Orleans, 123 La. 565, 49 South. 195; Ferrand vs. Cook, 146 La. 17, 83 South. 362; and that he was bound to exercise ordinary care, which included the duty of cautioning the driver to stop before going -upon the track, or to observe for himself and warn the driver of the approach of the train, citing Brubaker vs. Iowa County, and note, 18 A. L. R. 303; Lambert vs. Eastern Massachusetts R. R. Co., 22 A. L. R. 129; Toups vs. M. L. & T. R. R. & s. S. Co., 4 La. App. 136; Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 South. 602; and 29 Cyc., page 561, and quoting an excerpt from the latter as follows:

"Notwithstanding the fact that the negligence of the driver will not be imputed to a passenger yet it is necessary that the passenger himself must exercise ordinary care. And the rule denying the imputation of the negligence of the driver to the passenger has no application where such passenger has an opportunity to discover the danger, it being his duty in such case to discover and avoid it. While the passenger is not required to exercise the same watchfulness as the driver, he cannot rely implicitly on the care of the driver when in a position to. see, etc.”

The citations as to the duty of the passenger in general (without regard to the question of imputing the negligence of one person to another where they do not sustain the relation of master and servant, etc.) recognize that there is a difference between the duty of the passenger or person riding with the driver and that of the-driver in approaching and going upon railroad crossings; and in Churchill vs. T. & P. Ry. Co., 151 La. 726, 92 South. 314, where a guest of the driver was charged with negligence, it was said:

“One riding in an automobile, who did not have charge of its operation, was not required to keep a lookout for danger at a railroad crossing, but could rely on the discharge of that duty by the driver, and, where he shouted a warning as soon as he saw a train, he was not negligent.”

If it could be said that the expression quoted from the case of Churchill vs. T. & P. Ry. Co., supra, does not go to the extent of relieving a passenger, guest or one riding in a vehicle of maintaining a lookout for danger at a railroad crossing, nevertheless it is clear that the court has recognized there is a difference between the duty of the driver and one riding with him, when approaching or when going upon a railroad track, at a crossing (Daull vs. N. O. Ry. & L. Co., 147 La. 1012, 86 South. 477, and authorities cited), and considering that there is a material distinction in the nature of the evidence necessary to show negligence on the part of the driver and one riding in the vehicle with him (where negligence cannot be imputed to the latter) in that the negligence of the driver is active, while that of the person riding with him is passive, and that in determining whether or not the latter has been guilty of negligence in failing to act, the maturity ■of such person as well as his relation to the driver should be considered, and not solely the question of whether or not he is capable of appreciating danger.

The evidence does not show that Charlie Ford was a precocious child, and the driver of the truck being a man of mature years, we think, conceding that it is ordinarily the duty of one riding in a vehicle with the driver, to maintain a lookout for danger at a. railroad crossing and to warn the driver to stop before going upon the crossing, where, as in the present instance, the driver had approached the crossing at a speed which would have enabled him to ■ stop at any time, we do not think the. evidence is sufficient to show that Charlie Ford was of sufficient maturity to be held guilty of negligence in failing to appreciate the necessity of observing for himself the dangers of the crossing rather than relying upon the driver, a man of mature years, who had exclusive control of the truck.

(2) While we think that this 'is answered by the ruling above, but as it involves the question of imputing the negligence of one person to another, we think that it is also answered by the evidence not showing that Charlie Ford had control, of the driver of the truck or that they were engaged in a joint venture. (Blashfield, vol. 2, pages 1137-1147, Nos. 28-31.)

(3) Defendant in support of this posi.•tion cited the rule that a parent cannot recover for the damages sustained by him resulting from the death of his infant child where the parent’s negligence in the care of the child contributed to the death (Westerfield vs. Levis Bros., 43 La. Ann. 63, 9 South. 52) and decisions from other jurisdictions are also cited in which the negligence of one to whom the parent entrusted his child is imputed to the parent.

We do not understand that counsel contend that the doctrine would be applicable only when negligence was shown by the parent and as the evidence does not show that Buckley or Pylant could be said to have occupied the legal relation of a parent to the minor neither could have escaped liability to the minor for injuries resulting to him from their negligence, and certainly the evidence does not show negligence in plaintiff in permitting Buckley to have the care and custody of the minor nor in Buckley in permitting the child to ride on the truck with Pylant, and we do not think the negligence of Pylant can be imputed to the parent.

(4)The evidence establishing that plaintiff had allowed J. E. Buckley to have the care and custody of his minor for several years and that during that time plaintiff had not contributed to the child’s support and had allowed long intervals to elapse without inquiry as to the child, defendant contends that the amount of recovery should be only nominal.

It does not appear that plaintiff had abandoned his child, and we assume that in allowing Buckley to have the care and custody of the child plaintiff made some sacrifice and that he did have some expectancy for aid and assistance from his child after he became of age, and while it is impossible to fix with certainty the value of such expectancy, as well as the value of the society and companionship and affection of the child, to the parent, we think that he should recover more than merely nominal damages, and we shall fix the amount at two thousand dollars, which, considering the decrease in the purchasing value of money, is authorized under the following decisions: Wilson vs. Banner Lumber Co., 108 La. 590, 32 South. 460; Lindsey vs. Tioga Lumber Co., 108 La. 468, 32 South. 464; Patton vs. Frost-Johnson Lumber Co., 142 La. 117, 76 South. 580; Duffy vs. Hickey, 151 La. 278, 91 South. 733.

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, M. L. Ford, have and recover judgment against defendant, Chicago, Rock Island & Pacific Railway Company, in the sum of two thousand dollars, with legal interest from judicial demand, and all costs of suit.


text:
    No. 3204
    Second Circuit
    FERRIDAY COOPERAGE CO. v. PORTER
    (May 22, 1928. Opinion and Decree.)

      (.Syllabus by the Editor.)

    1. Louisiana Digest — Timber—Par. 1, 3, 6.
    Where contract of purchase of small timber allows four years for vendee to remove it, failure of vendee to remove all of it before the expiration of the four years period, attributable to his own fault or negligence forfeits his rights under the contract.
    2. Louisiana Digest — Timber—Par. 1, 3; Obligations — Par. 99, 100, 125;. Estoppel —Par. 37.
    One who has himself considered a contract binding and partially executed it cannot thereafter claim the contract void for want of mutuality.
    Appeal from the Seventh Judicial District Court, Parish of Concordia. Hon. R. M. Taliaferro, Judge.
    Action by Ferriday Cooperage Company against Samuel Porter.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dale, Dale and Dale, of Vidalia, attorneys for plaintiff, appellant.
    L. T. Kennedy, of Vidalia, attorney for defendant, appellee.
   ODOM, J.

In the month of February, 1919, the defendant, Samuel Porter, sold to plaintiff, Ferriday Cooperage Company,

“* * * all small timber not merchantable as logs on the qut over lands of the McQueen and Brabston plantations in Concordia parish, Louisiana; it being expressly understood that said vendee shall not enter for1 the purpose of removal or remove any of said timber from said cut over lands until all of the merchantable logs have been removed therefrom.”

The consideration for the sale was $1000.00; $400.00 cash, and the balance in three installments of $200.00 each, represented by notes which were paid.

The contract is in writing and contains this stipulation as to time for removal:

“Four years is allowed to remove said timber.”

The Cooperage Company, plaintiff here, went upon the land shortly after the contract was signed and removed twenty-five cords of bolts worth $25.00. On September 27, 1926, it brought this suit to recover the sum of $975.00, the balance of the purchase price paid for the timber after deducting the value of the bolts removed, and set up as a cause of action that about the time it had. removed the twenty-five cords oí bolts from the land, said Porter, its vendor, notified it to stop cutting and it did so, and that up to the date of the filing of the suit it had not removed any more of the timber because the defendant, Porter, had not removed from the land the merchantable timber which he reserved, and refuses to permit plaintiff to remove its small timber until he, Porter, removes the merchantable timber; that under the terms of the deed it is—

“* * * expressly understood that said vendee shall not enter for the purpose of removal or remove any of said timber from said cut over lands until all of the merchantable logs have been removed therefrom.”

That said Porter, by failing to remove the merchantable timber from the land, and by refusing to permit it to go upon the land and remove its timber until the merchantable timber is removed, has made it impossible for it to get its 'timber, and that he should therefore refund the balance of the purchase (price.

In a supplemental and amended petition, plaintiff asked that, in case the' court should hold that it had a right to force defendant to remove his timber in order that it might enter the land, then the court should fix said time and suggests that six months would be reasonable; and further alleged that in as much as there was no obligation on the part of defendant to remove his timber

“* * * therefore it may be that said contract contains a potestative condition, and is null ab initio; or that said contract is null for lack of mutuality; and in either event plaintiff is entitled to recover from defendant the sum of $975.00.”

And it prays for judgment holding that defendant has violated his contract with plaintiff by not removing all the merchantable logs from said cut over land a sufficient time prior to four years from the date of the contract to enable plaintiff to cut and remove all its timber.

The defendant, in answer, especially denied that he had prevented plaintiff from removing its timber from said lands within the four years stipulated for its removal, and alleged that he had not refused plaintiff access to the land for such ¡purpose, and that plaintiff, having failed to remove its timber from the land within the prescribed time, had forfeited its rights under the contract.

The lower court rejected plaintiff’s demands and it appealed.

OPINION

Regardless of any other issues which may have been injected into the case, if plaintiff failed to remove its Umber from the land within the four years period given for such removal, it had lost its rights under the contract long before this suit was filed, if such failure is attributable to its own fault or negligence. It is settled that after a timber contract has been broken by failure to remove the timber within the time fixed in the contract for the removal, the vendee has no further rights.

St. Louis Cypress Co. vs. Thibodeaux, 120 La. 834, 45 South. 742.

Sullivan vs. Louisville Ry. Co., 106 La. 414, 55 L. R. A. 530.

Savage vs. Wyatt Lumber Co., 134 La. 627, 64 South. 491.

Yerger vs. Simmons, 136 La. 280, 67 South. 3.

The testimony warrants the holding that plaintiff’s failure to remove the timber was not due to any interference on the part of Porter, the defendant, but was due to plaintiff’s neglect. Plaintiff entered upon the land at one time and cut and removed therefrom a small portion of the timber which it had purchased, and one of plaintiff’s witnesses, Mr. Brothers, says his men were stopped by Mr. Fatheree, who represented Porter. But Mr. Brothers was asked:

“Did Mr. Fatheree tell you why he wanted these cutters to stop cutting at that time?”

And he answered:

“My recollection is that we were cutting timber that was over-size.”

And, again:

“He told you to quit because you were cutting timber that was larger than that you had bought?”

And he answere.d:

“Yes, sir.”

The same question was repeated and the same answer was given.

It is clear, therefore, that the objection made by Porter to plaintiff’s cutting timber was upon the ground that the timber being cut did not belong to plaintiff. This witness knew of no other occasion on which Porter interfered.

. Mr. L. H. Brothers, another witness, was called for plaintiff, and he was asked if Mr. Porter or Mr. Fatheree had ever told him personally to quit cutting timber, and he said they had not, and was then asked:

“Is the only incident you know of the one related by your brother, to-wit: that he went down on the train with Mr. Fatheree, and Mr. Fatheree told him your cutters were over the line and were cutting merchantable timber and that you must stop, is that the only notice you know of?”

And he answered:

“Yes.”

He was then asked if after that he went to see Porter personally about the matter, and he said he had not.

This witness, L. H. Brothers, who, it seems, was manager for plaintiff, did say, however, that he had been to Porter a number o.f times during the period of four years and asked him for permission to cut, and if the merchantable timber had been removed so that he could cut, and that Porter informed him that he, Porter, was not ready for plaintiff to enter the land.

But Porter emphatically denied this, and said that the only times Brothers had ever mentioned the matter to him was more than four years after the date of the signing' of the contract, and after plaintiff’s rights had expired. Brothers, he said, met him in Natchez and asked for a copy of the contract. He says that at that time he told Brothers that the time for removal had expired. Later on, he said, Brothers had spoken to him about the matter.

"We think Mr. Brothers’ memory is somewhat hazy about the matter, for he was asked over and over again to specify the places where and the dates on which he had spoken to Porter, and he could specify only one, and that, he said, was ih Natchez, Mississippi, in the office of Mr. Gurd and that Gurd was present. Gurd was called as a witness and said Mr. Brothers was mistaken — that no conversation had taken place between Porter and Brothers in his presence, in his office or elsewhere.

This witness, Brothers, made it clear that plaintiff was notified only one time to quit cutting and that was the time it was accused of cutting timber which admittedly it did not own. He said they did not go back to cut any more. On page 30 of the testimony, he was asked:

“Did you do anything about going down there and cutting the small timber?”

And he said:

“We did not do anything more. I mean I- did not.”

Asked if his company did anything, he said:

“My brother did.”

Presumably this witness referred to A. J. Brothers, who testified that plaintiff was ordered to stop cutting merchantable timber, but he gave no intimation that they were stopped at any other time, or that they ever did anything else looking to the removal of the timber.

But Porter and Fatheree swore that they had never refused plaintiff permission to cut and remove timber off the cut over lands.

The testimony shows that there is some merchantable timber yet on the land, but how much is not shown. Fatheree did say, however, that at the time the contract was made all the land had been cut over, except about 600 or 700 acres. If there was any reason why plaintiff could not have removed its timber from part already cut over it is not shown.

Plaintiff’s witnesses said they had not been notified by Porter to remove the timber. That was not necessary. Plaintiff had bought the timber and it was its duty to look after its own interests and get the timber off. If Porter had interfered, it had its remedy.

Our conclusion is that plaintiff has lost its rights under the contract through its own neglect.

As to plaintiff’s contention that the contract is void for want of mutuality, we have only this to say. Plaintiff itself considered the contract binding and partially executed it by going upon the land and removing therefrom a small portion of the timber.

The judgment appealed from is affirmed with costs.


text:
    No. 2400
    Second Circuit
    BLADE, ET AL., v. YOUNG
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 46, 47.
    An agreement for the sale of real estate made under the condition that the sale will not be completed until the price is paid is merely a promise of sale.
    2. Louisiana Digest — Evidence—Par. 278.
    Parol evidence to show the cancellation of an agreement or promise of sale of real estate is not admissible.
    3. Louisiana Digest — Sales—Par. 46, 47, 64, 145.
    Where the evidence does not show that the purchaser under a promise of sale agreement has paid all of the purchase price, he cannot get judgment ordering the seller to make him a deed to the property.
    4. Louisiana Digest — Sales—Par. 46, 47, 63, 64.
    Where a promise of sale agreement of real estate does not provide that it should be ipso facto forfeited on failure of the promisee to comply with the conditions and evidence indicates that the promisor acquiesced in the failure of the promisee to pay the price, permitting him to make improvements, contract has not been forfeited.
    Appeal from the Second Judicial District Court, Parish of Bossier. Hon. J. H. Stephens, Judge.
    Action by Rachel Blade et al. against R. E. Young.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and promise of sale dismissed as of non-suit.
    Arthur A. LeRosen, of Shreveport, attorney for plaintiff, appellant.
    W. B. Hamilton, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The defendant R. E. Young, and Johnson Blade entered into a written agreement on the 17th day of January, 1914, in which Young bound and obligated himself to grant, bargain, sell, convey and deliver to Blade certain lands situated in the Parish of Bossier on Blade paying to him the sum of six hundred dollars represented by two notes dated with the act payable to the order of defendant maturing on November 1, 1914, and November 1, 1915, respectively, and stipulating eight per cent per annum interest from January 15, 1914, it being stipulated that when Blade had made the last payment on the property Young would give a warranty deed to him or his heirs or assigns.

The instrument, which was under private act, was duly acknowledged and recorded, and the notes were given and delivered to Young, and Blade being in possession of the property remained therein until the time of his death, in May, 1921, and following, Young, by some means, dispossessed the widow and heirs of Blade, who filed this suit on March 22, 1922, alleging that there was a completed sale of the property and praying for judgment accordingly, and, in the alternative, in the event it should be held that the sale was not completed, and that there was a promise of sale, that the price had been paid, and for judgment ordering defendant to give them a deed.

The defendant answered admitting that the agreement had been signed and alleging that it was merely a promise of sale, and that Blade, having failed to make the -payments, all of his rights thereunder were forfeited, and, further, that Blade had, about the year 1919, leased the property from defendant and had paid rent thereon from that time to the date of his death, and that it was recognized by all parties that plaintiff was merely a tenant, and he prayed that plaintiffs’ demands be rejected and that the agreement be declared forfeited, cancelled and erased from the records.

On trial, evidence was introduced by plaintiff, under the alternative demand, tending to show that the price had been paid, which, however, did not establish the fact, and defendant, over plaintiffs’ objection, was permitted to state that Blade had not paid anything on the price, and of the statements of the deceased to the same effect, and that the deceased had consented to the cancellation of the agreement in about 1919, subsequent to which time he had leased the property on shares, and that he had received one bale of cotton for each of the three years, of the total value of four hundred eighty dollars, and judgment was rendered against plaintiffs, rejecting their demands, and in favor of defendant declaring the agreement forfeited and cancelled, from which judgment plaintiffs appeal.

The appellants urge that the court erred in permitting the introduction of parol evidence tending to show the cancellation of the agreement, and in holding that the agreement was a mere promise of sale rather than a sale, and, in any event, in refusing to order the defendant to make a deed, and in decreeing the contract forfeited and cancelled.

Assuming that if the transaction was a completed sale and the title to the property was translated, it will be conceded that the parol evidence offered over plaintiff’s objection was inadmissible (Bradford’s Heirs vs. Clark, 7 La. 147; Sharkey vs. Wood, 5 Rob. 326; Barthet vs. Estebene, 5 La. Ann. 315; Chronos Land Co. vs. Crichton, 150 La. 963, 91 So. 408), we shall pass the question until later and proceed to consider the position of plaintiff that there was a completed sale.

The Civil Code declares that “The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” (Art. 2456, C. C.; also Art. 2439, C. C.) and the plaintiffs contend that the agreement showing the consent of the parties as to the object and the price, and the evidence showing possession of the property by Blade and possession of the notes representing the price in íoung, the sale was complete and the ownership of the notes representing the price vesting in Young and the ownership and title to the property passing to Blade.

The written agreement of the parties does not purport to transfer the ownership or translate the title, and there are many decisions dealing with the effect of such agreements having relation to real estate, especially prior to the amendment of Article 2466, which declared a promise to sell amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price, among which we note Peck vs. Bemiss, 10 La. Ann. 160; Knox vs. Payne, 13 La. Ann. 361; Garrett vs. Crooks, 15 La. Ann. 483; Baldwin vs. Morey, 41 La. Ann. 1105, 6 South. 796; in which it was held that the agreement did not evidence a complete sale; and in Trichel vs. Home Insurance Co., 155 La. 459, 99 South. 403, the court said:

“Our conclusion is that any agreement for the sale of real estate, which is not intended to be the final writing between the parties, but, on the contrary, to be followed by another and final deed, is a mere promise of sale and not a sale, and does not transfer the title to said property; unless it clearly appear that the parties contemplated that the new deed should be only a confirmation of the first, and not indispensable for the transfer of title.”

And in Pruyn vs. Gay, 159 La. 981, 106 South. 536, the court, quoting from the syllabus in Trichel vs. Home Insurance Co., said, as to the instruments evidencing the agreement for the sale of real estate:

“Neither consent, nor delivery, nor payment of price suffice to transfer the ownership; there must be a deed translative of the title.”

While the facts in the cases cited may be in some respects distinguished from those in the present instance, we are of the opinion that the cases, cited, at least announce the principle that, an agreement for the sale of real estate may be made under the condition that the sale will not be completed until the price is paid, although the promisee becomes obligated for the payment of the price, and is permitted to take possession, when the condition is clearly expressed, and we think that the instrument evidencing the agreement of the parties in the present instance, clearly expresses the condition on which the sale would be completed, and was merely a promise of sale, and that plaintiffs’ primary demand was properly rejected.

Considering the alternative demand, the evidence does not show the payment of the price, although it indicates that something was paid, and therefore plaintiffs are not entitled to have judgment 'ordering defendant to make them a deed, or to judgment having that effect, but we do not think their alternative demand should have been rejected, or that the contract should have been forfeited and cancelled.

The defenses made and urged to the alternative demand, and the basis of the demand for forfeiture or cancellation of the agreement, were that the contract had been forfeited, and that it had been cancelled by the agreement of the parties.

The agreement does not provide that it should be ipso facto forfeited on failure of the promisee to comply with the conditions within any fixed time, and if defendant had the right to have claimed a forfeiture, it is not claimed he had exercised such right, and the evidence indicates that he acquiesced in the failure of the promisee to pay the price, permitting him to make improvements on the property, and further shows that defendant had possession of the notes and had not tendered same to Johnson Blade, or the plaintiffs, and indicates that something was paid on the price, and we do not think that the evidence warrants the judgment for the alleged ground of forfeiture.

In support of the alleged agreement to cancel the contract defendant was permitted to introduce parol evidence, over the objection of plaintiffs, the trend of which, as testified to by defendant, was that in about the year 1919 Blade had agreed to cancel the contract and had thereafter leased the property, giving one-fourth of the crop, under which lease defendant had received cotton of the value of four hundred eighty dollars.

The right which Blade acquired was a real right, and was of the nature which the law requires must be in writing (Art. 2275, C. C.; Oeschner vs. Keller, 134 La. 1098, 64 South. 921), and could be shown to have been cancelled, rescinded or waived only by evidence of the same character (Sharkey vs. Wood, 5 Rob. 326; Chronos Land Co. vs. Crichton, 150 La. 963, 91 South. 408; Art. 2290, C. C.), and where evidence is offered for the purpose of showing conduct inconsistent with any claim of right, as that the promisee had leased the property, the lease could not be shown by parol evidence (Bradford's Heirs vs. Clark, 7 La. 147), and we do not think the evidence should have been admitted.

The contract was valid. It was not forfeited or shown to have been cancelled at the time of the suit, and although plaintiffs failed to prove the present right to specific performance, their failure in that respect did not destroy the contract.

It is therefore ordered that the judgment appealed from be avoided and set aside, and it is ordered, adjudged and decreed that plaintiffs’ primary demand be rejected, and their alternative demand for specific performance of the promise of sale be dismissed as of non-suit;' cost of appeal to be paid by defendant