text:
    No.-.
    First Circuit
    W. C. JOUBERT v. U. S. FIDELITY & GUARANTY COMPANY
    (November 10, 1925. Opinion and Decree.)
    (December 22, 1925. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Builders and Building—Par. 29; Pleading—Par. 62.
    In a suit by a building sub-contractor for work done and material furnished it is not necessary in order to state a cause of action that plaintiff allege that his claim was recorded within forty-five days after the acceptance of the work.
    2. Louisiana Digest—Costs and Fees—Par. 30.
    A claimant under Act No. 224 of 1918 in order to recover ten per cent attorney’s fees must prove amicable demand on the principal and surety followed by a delay of thirty days.
    Appeal from the parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    This is a suit to recover a balance due a sub-contractor for work done and material furnished. It is brought against the surety of the contractor and was dismissed on exception of cause of action. Judgment reversed and case remanded, tried on its merits; deciding in favor of plaintiff, and- the present appeal taken by defendant.
    Judgment amended disallowing ten per cent attorney’s fees, otherwise affirmed.
    Cross and Moyse of Baton Rouge, attorneys for plaintiff, appellee.
    J. Zach Spearing of New Orleans and Charles A. Holcombe of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The above suit is to recover a balance due plaintiff, as sub-contractor for work done ,and material furnished in repairing the State House at Baton Rouge. The suit was brought directly against the surety of the contractor and was first dismissed by the trial Court on an exception of no cause of action. That judgment was reversed by this Court, as will appear by reference to an opinion and decree rendered May 6, 1924.

The case was remanded, tried on its merits, decided in favor of plaintiff and the present appeal was taken by defendant.

Defendant again argues that the plaintiff has no right or cause of action, that the bond was not recorded, that plaintiff failed to record his claim within forty-five days after the acceptance of the work, and that he should have instituted a concursus proceeding. These matters were all disposed of by our former judgment, in which defendant’s exceptions were overruled. Defendant also complain that plaintiff filed his suit before the work had been accepted, that suit having been filed on October 25, 1922, and the work accepted by the owner, January 16, 1923. But he failed to file an exception of prematurity and it would be a fruitless formality, under the facts shown in the record, to dismiss the suit upon that ground, in order to compel plaintiff to bring the same suit again.

It sufficiently appears from the evidence in the record that plaintiff’s claim is correct, that the labor and material furnished by him was used in performing in part the repairs provided by the contract and that the balance due him is five hundred and twelve 31-100 dollars with legal interest from judicial demand.

The defenses urged by defendant were held unavailable in similar cases decided by the Supreme Court. See Shreveport Mutual Building Assn. vs. Whittington, 141 La. 41, 74 South. 591, affirmed in Audubon Homestead Assn. vs. Stef Lumber Co., 158 La. 1054, 105 South. 62.

Defendant also complains that the trial judge erred in allowing plaintiff ten per cent attorney’s fees on the amount of his claim.

Act 224, P. 406, of 1918, governing the present case, provides that the claimant is entitled to recover ten per cent attorney’s fees as well as the full amount of his recorded claim or sworn claim, “provided that amicable demand for payment shall first be made on the principal and surety and thirty days shall elapse thereafter without payment being made in order that the said 10 per cent attorney’s fees may be taxed.” It thus appears that this provision inflicts upon the debtor an additional penalty besides legal interest, and, the jurisprudence being clear to the effect that penalties are not generally favored in law, therefore in order to recover the same a claimant must bring himself strictly within the letter of the expressed exceptional conditions under which they may be inflicted. The evidence fails to disclose any amicable demand on the principal and surety followed by a delay of 30 days, as required by the statute, and for that reason we believe our learned brother of the District Court erred in allowing plaintiff judgment for attorney’s fees.

We therefore are of the opinion that the judgment appealed from should be amended by striking therefrom the penalty of ten per cent attorney’s fees, and that otherwise said judgment should be affirmed, and

It is so ordered.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9705
    Orleans
    VIOLA SMITH v. GEORGE SLADOVICH AND ANDREW ROSENGARTEN, Appellants.
    (February 1, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 6 (a).
    A major son of tbe owner of an automobile will be held responsible for tbe negligent operation of the automobile by his friend and guest whom he permits to drive the car when it appears that he was present in the automobile which was being driven in his interest upon an errand of business or pleasure.
    (Civil Code, Art. 2315. Editor's note.)
    2. Louisiana Digest—Appeal—Par. 594.
    Where two trial courts reviewing the same facts testified to by the same witnesses, but .in different suits, independently reach the same conclusion, an appellate court will be most reluctant to disturb the findings of fact thus reached, and a strong presumption of the correctness of such findings obtains.
    Appeal from the Civil District Court in and for the Parish of Orleans, Division “F,” Hon. Percy Saint, Judge.
    This is a suit for physical injuries which plaintiff alleges she received as a result of her being run down and injured by an automobile.
    There w'as judgment for plaintiff against both defendants insólido and they have appealed. Judgment amended and affirmed.
    Jno. J. Wingrave of New Orleans, attorney for plaintiff, appellee.
    Eraste Vidrine and J. T. Convery of New Orleans, attorneys for defendant appellant.
   WESTERFIELD, J.

This is a suit for physical injuries which plaintiff alleges she received as a result of being run down and injured by an automobile belonging to Abel Rosengarten. Plaintiff first sued Abel Rosengarten, but, it appearing from the. evidence that the automobile at the time of the accident was in charge of Andrew Rosengarten, Abel Rosengarten’s major son, and was being driven by George Sladovich, Jr., a friend of the younger Rosengarten, without the knowledge of the owner of the car and for the pleasure of the son and his friend, this Court under the number 9265 of the docket affirmed a judgment of the District Court dismissing the suit against the owner of the car.

The present suit is against Andrew Rosengarten and George Sladovich, Jr. The District Court rendered a judgment for plaintiff against both defendants in solido in the sum of $790.00 and they have appealed.

Two contradictory accounts of the accident appear in the record. Plaintiff, who is a negress employed as a cook, says that she was standing 'on the banquette near the curb at the corner of St. Charles Avenue and Third. Street, looking in the direction of traffic and waiting for an opportunity to cross to the neutral ground, When “suddenly, without warning, without blowing his horn, but blinded by the powerful headlight of an automobile, petitioner was knocked into Third Street.” Plaintiff is corroborated by Edna Dancy, another negress, who happened to be present and who was a stranger to plaintiff.

The defendants, sworn as witnesses in their own behalf, say that plaintiff “is not entitled to recover, for her injuries were the result exclusively of her own negligence in proceeding diagonally across the roadway on the east or river side of St. Charles Avenue, from the sidewalk on the southeast corner of St. Charles Avenue and Third Street, toward the lower or north line of Third Street and the eastern or river side line of the neutral ground in St. Charles Avenue, and suddenly, unexpectedly and rapidly moving into the path of the said automobile at such a short distance from it, that there was no human possibility on the part of respondents of preventing or reverting a collision between her and the said automobile.”

It will be seen that practically the only thing which both sides have agreed upon is the fact of collision. On the one hand, we have the plaintiff and a witness who appears to be totally disinterested and on the other the two defendants. No other witnesses have appeared in the case. The district judge evidently believed plaintiff and her witness, as did the judge who tried the first case against Rosengarten, Senior, for in deciding that defendant could not be held responsible for the accident, he remarked that plaintiff “was injured by the negligent operation of defendant’s automobile.”

Under the circumstances, we cannot say the conclusions of fact of the trial judge were manifestly erroneous, and we conclude on this point that plaintiff is entitled to recover.

But the defendant Rosengarten insists that he cannot be held liable, because he was not driving the car at the time of the accident. Rosengarten, it appears, had the privilege of using his father’s car, and he and his friend, Sladovich, were riding in it when the accident occurred. Sladovich Was driving, having been given permission by Rosengarten to run it. It has been held that:

“The liability of an owner who keeps an automobile for the use and pleasure of himself and family extends to the negligent acts of one to whom a member of the family, authorized to use the car temporarily, entrusts the operation thereof,- but not relinquishing control over the car nor leaving the same to his sole care.”

Berry on Automobiles, Fourth Edition, Sec. 1341, p. 1186.

We do not go that far, but we think that when a major son uses the family car and employs or permits another to drive him, that he controls the operation of the car and is responsible for its negligent handling. This is not a case of lending a ear to a friend, who uses it for his own purposes and uncontrolled by the owner or lender. The principle of master and servant applies here, the only distinction being the absence of compensation. Sladovich was not a volunteer. He had obtained the permission of Rosengarten. If Rosengarten, Junior, had been the owner of the car, there could have been no question of his liability. We think he is in the position of owner- so far as his responsibility for the operation of the car is concerned.

“.One in possession and in charge of an automobile and using it for his own purpose, is under obligation so to use it as not to injure" another; and he cannot escape liability for failure so to use it by procuring another to drive for him.” Catalano vs. Neguslona, 9407 Orl. App. Cusimano vs. Durnin, 7457 Orl. App.
See also where defendant was guest of chauffeur. 130 N. W. 336, 176 Pac. 326, 91 S. E. 632. In this case chauffeur was guest and co-defendant.

There remains the question of quantum.

Plaintiff claims to have incurred a doctor’s bill of $100.00 and a drug bill of $40.00 and suffered a loss in earnings of $150.00 and she asks for “compensatory damages” the modest sum of $9710.00, or a total of $10,000.00. Her injuries are described as “serious and internal injuries to her body and limbs; contusions of the left leg and abdomen”.

We do not know what is meant by internal injuries to her limbs nor does the record enlighten us. There is no evidence of internal injury of any sort. She complains of pains in her abdomen but no medical testimony of a satisfactory nature upon which to base an opinion of her condition in that regard is of record. The trial court awarded her $790.00 and we think it should be reduced to $500.00.

For the reasons assigned, the judgment appealed from is amended to the extent of reducing the amount awarded plaintiff to five hundred ($500.00) dollars, the defendant to pay all costs.


author: MOUTON, J.

text:
    No..........
    First Circuit'
    C. J. DEVILLE LUMBER COMPANY v. J. EMILE PUCHEAU.
    (December 8, 1925. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest—Municipalities—Par. 129.
    Under Act 147 of 1902, Section 4, the sum assessed against a property holder for sidewalks or curbings, becomes due within ten days after the completion of the work by the contractor, and its acceptance by the municipality.
    2. Louisiana Digest—Pleading—Par. 62; Municipalities—Par. 130.
    A petition in which a contractor sues under Act 147 of 1902, Section 4, for the value of concrete sidewalks and for a first privilege on the property against which the assessment is made should be dismissed on an exception no cause of action if it does not state that the certificates were recorded as required by that statute.
    Appeal from Evangeline Parish, Hon. B. H. Pavy, Judge.
    This is a suit brought by a contractor to collect the value of 'concrete sidewalks from a property owner. An exception no cause of action was interposed and maintained by the lower court.
    Plaintiff appealed. Judgment affirmed.
    Geo. L. Fontenot of Opelousas, attorney for plaintiff, appellant.
    R. L. Garland, P. R. Sandoz of Opelousas and J. H. Dore of Ville Platte, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that he entered into a contract with the Town of Ville Platte for the construction of conCrete sidewalks within the municipality. He avers that he performed his work according to his contract, which was accepted by the town. He alleges that the town set to w'ork to collect twenty per cent of the concrete walk fronting on defendant’s property which he had constructed, and to issue certificates for the credit portion of his indebtedness, which, plaintiff alleges, amounts to $256.25. He alleges that under the provisions of Act 147, 1902, he is entitled to a privilege or lien on the property of defendant, which abuts the sidewalk for the amount above claimed, and prays for recognition of a lien thereon.

An exception of no cause of action was interposed by defendant, and was maintained by the Lower Court.

Under Act 147, 1902, Sec. 4, the sum assessed against a property holder for sidewalks or curbings becomes due within ten days after the completion of the work by the contractor, and its acceptance by the municipality. If this sum is not paid within ten days, the town may proceed by suit to collect the delinquent assessment, and may have its privilege recognized on the property. Obviously, plaintiff is not demanding relief under this part of the statute. Instead of enforcing the assessment as above stated, the town, at its option, may accept a cash payment thereon of twenty per cent, and for the deferred payments may authorize the issuance of certificates. When a copy of such certificate is recorded, the statute grants a first privilege on the property against which the assessment is made, and when transferred to the contractor, carries with it the lien attached thereto. It is alleged hy plaintiff that defendant refused to pay the cash demand and that no such certificates were issued. It is therefore apparent that no certificates were recorded as required by the statute to create a privilege. Plaintiff had no standing in Court, under the allegations in his petition, to demand the recognition of a lien or privilege on the property of defendant, and that it be sold to satisfy his claim.

There is no error in the judgment maintaining the exception and dismissing the suit.

Affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    OPELOUSAS-ST. LANDRY BANK & TRUST COMPANY v. CHARLES H. PUCHEAU, Sheriff and Tax Collector.
    (December 8, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest—Taxation—Par. 276, 293.
    The only immovable property that" may. be sold for taxes is the immovable property on which the tax is due.
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is a suit for the collection of taxes on both movable and immovable property.
    There was judgment ordering defendant to accept payment of a tax due on the immovable property owned by the plaintiff, and defendant appealed. Judgment affirmed.-
    Dubuisson, Perrault & Burleigh of Opelousas, attorneys for plaintiff, appellee.
    J.C. Pruge, of Ville Platte, attorney for defendant, appellant.
   LECHE, J.

The plaintiff in this case held a mortgage on a lot of ground, together with the store building thereon, in the town of Basile. The owner of said property, one Demás Ardoin, unable to pay, transferred and conveyed the property to plaintiff November 21st, 1924, in satisfaction of the mortgage. At that time, in 1924, Ardoin had been conducting a mercantile business and surrendered to his creditors the stock of goods and merchandise contained in the store. Ardoin having failed to pay any of his taxes for 1924, the Sheriff and Tax Collector of the Parish of Evangeline proceeded to advertise for sale in satisfaction of Ardoin’s taxes, the whole property.

Plaintiff tendered to the Sheriff and Tax Collector that portion of the taxes due on the lot and building, but defendant, acting upon instructions from the State T'ax Commission, refused to accept only a part of the taxes, and he insists upon payment of all the taxes due by Ardoin. Upon the assessment- rolls the lot and building now owned by plaintiff appear to have been assessed for five hundred dollars and the merchandise and other movable effects were assessed for thirty-eight hundred and ninety dollars, so that it is not pretended that the relative amount of taxes due on the immovable property, and that due on the movable could not be definitely ascertained.

The only property that may be sold for taxes is the property on which the tax is due, except in the case of movables, and the property involved here being immovable, does not come within the exception.

We have not been favored -with brief or argument on the part of the State and therefore do not know upon what grounds the instructions from the Tax Commission are based.

■ The District Judge maintained the demand of plaintiff, ordered that defendant accept payment of the, tax due on the immovable owned by plaintiff, and, believing that his judgment is correct, the same is hereby affirmed.


author: ELLIOTT, J.

text:
    No. 2065.
    First Circuit
    E. L. CLARK v. JOSEPH D. O’BANION.
    (December 8, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Bills and Notes—Par. 222.
    The burden of proof of a special defense of part payment of a note is on the defendant who makes the plea.
    2. Louisiana Digest—Costs and Fees—Par. 4, 5.
    Where one seeks to compel another to pay more than he owed him, thus making it necessary for the defendant to enjoin the sale of his property, the plaintiff is liable for the costs occasioned by the injunction.
    Appeal from the Thirteenth Judicial District, Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is a suit by which the plaintiff obtained executory process on a mortgage note. The defendant enjoined the sale of property, claiming credits due him on the note. There was judgment allowing credits and perpetuating the injunction as to those credits.
    Plaintiff appealed. Judgment amended and affirmed.
    S. W. Gardiner of Ville Platte, attorney for plaintiff, appellant.
    M. C. Preschel of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

E. L. Clark sued out ex-ecutory process against Joseph D. O’Banion on a mortgage note for $600.00 signed by O’Banion and secured by mortgage on the property described in the petition.

J. D. O’Banion enjoined the sale on the ground that the note had been paid.

It was established on the trial that defendant, O’Banion, had sold and delivered to Clark a tract of land situated in Rapides Parish, for the price of $350.00, to be credited on said note; but the evidence showed that Clark was compelled to expend $196.45 clearing the land of encumbrances imposed thereon by O’Banion; and in paying delinquent taxes due by him on the land before it was acquired by Clark.

This sum deducted from $350.00 leaves $153.35 for credit on said note.

O’Banion at the same time sold Clark a cow, the price of which was to be credited on said note.

O’Banion and his brother say the price of the cow was $175.00; but Clark and the officer before whom the sale of the land was executed say that it was $125.00.

The burden of proof in this respect is on O’Banion; so we take the price of the cow to be $125.00; which, added to the net price of the land, makes $278.55. This sum must he credited on the note.

A further credit of $100.00 claimed by O’Banion is not satisfactorily established, and is therefore disallowed.

Clark sought to compel O’Banion to pay more than he owed him on the note, consequently O’Banion was compelled to enjoin the sale which Clark obtained an order for. The injunction was properly perpetuated to the extent stated. Clark is therefore liable for all the cost occasioned by O’Banion’s resort to said injunction.

The defendant, O’Banion, has not made any appearance in this court, although he is the appellant.

We will therefore tax the cost of this appeal against him; but all the cost occasioned by the injunction is taxed against Clark.

As thus corrected and amended, the judgment appealed from is affirmed.


text:
    No........-
    First Circuit
    JEFF WEST v. IMPORTERS AND EXPORTERS INS. CO.
    (December 8, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 521.
    Where the basis of a suit is a policy of insurance which was not introduced in evidence, although no explanation wás made for its nonproduction, it being necessary for a proper determination of the case to consider the wording of the insurance policy, the suit will be dismissed without prejudice in the appellate court.
    Appeal from the parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is a suit to collect insurance together with penalties, attorney’s fees and costs for the loss by fire of an automobile.
    There was judgment for defendant, and plaintiff appealed. Judgment amended by dismissing case as of_ non-suit and affirmed.
    O'. E. Guillory of Ville Platte, attorney for plaintiff, appellant.
    John C. Bfollingsworth of New Orleans, attorney for defendant, appellee.
   LECHE, J.

Plaintiff appeals from a judgment refusing his demand for four hundred and twenty dollars, ■ together with penalties, attorney’s fees and costs, alleged to be due to him upon a contract of insurance. He alleges that he insured his Ford automobile with the defendant company in a sum not to exceed four hundred and twenty dollars, against loss by fire; that the policy evidencing the contract is not in his possession or under his control; that said Ford automobile was destroyed by fire on February 26, 1924, during the existence of the contract of insurance; that he has observed all the warranties on his part of the agreement of insurance; that said automobile had cost him $592.96 •—$250.00 cash and twelve promissory notes each for the sum of $28.58, April 17, 1923, the day on which the insurance policy was issued; that all 'said notes had been paid at the time of' the fire; that said automobile was free of all liens and encumbrances when destroyed, and that his loss exceeded $420.00; that he had made formal demand for his damage, after 60 days from his proof of loss, and he prays accordingly for judgment.

Defendant categorically denied all of these allegations, but admitted, however, that it had issued and delivered to the Standard Motors Finance Company, who applied, therefor, a policy of insurance No. E-149, together with a certificate No. 8082, payable to the Standard Motors Finance Company and Jeff West as their respective interests were therein described, providing indemnity in a sum not exceeding $420.00 for the term of one year from April 17, 1923, at noon, which policy is not in defendant’s possession, or under its control.

On the trial of the case, proof admitted over the objection of defendant showed that the automobile was damaged by fire as alleged, on February 26, 1924; that the notes which plaintiff had subscribed in payment of the purchase price, secured by vendor’s privilege and chattel mortgage, had all been paid; that the actual damage to the automobile was three hundred dollars, and that demand for payment had been made in vain.

The policy, however, evidencing the contract of insurance, was not prodüced, no effort was made to produce the same, and no explanation given as to the cause of its non-production. Plaintiff alleged that he had “observed all the warranties of agreement” contained in the policy and complied with its conditions, but this allegation was categorically denied in defendant’s answer.

In the absence of the policy, it is of course impossible for the court to pass upon that controverted issue. There is no proof of the loss or destruction of the policy, nor is there any proof as to what agreements were contained herein, so that we cannot say whether the plaintiff has complied with such agreements. It is not disputed, and the plaintiff so concedes by the allegations of his petition, that in order to recover a plaintiff must bring himself within the conditions of the policy.

Under these circumstances plaintiff’s demand should not be definitively denied, but. his suit should be dismissed without prejudice, reserving to him the right to renew the same under proper allegations, and the judgment appealed from should be accordingly amended.

It is therefore ordered that the judgment appealed from be amended by dismissing plaintiff’s demand as in case of non-suit. It is further ordered that costs of appeal be paid by defendant and those of the Lower Court be paid by plaintiff.


author: LECHE1, J.

text:
    No..........
    First Circuit
    EARL B. BARNES, Receiver, Etc., v. ARTHUR B. LA COUR.
    (November 10, 1926. Opinion and Decree.)

      (Syllabus by the Editor.) •

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court as to a question of fact, namely, alleged misrepresentation in the sale of capital stock, being clearly correct, is affirmed.
    2. Louisiana Digest — Corporations — Par. 285.
    Where the receiver of a corporation was duly authorized to bring suit to collect the balance due on a subscription of capital stock of the corporation, he can collect the balance due.
    Appeal from the parish of Pointe Coupee, Hon. Wm. Carruth Jones, Judge.
    This is a suit brought by the receiver of a corporation for the balance due of a subscription of its capital stock. Defendant filed an exception no cause of action, which was overruled on the merits.
    There was judgment for plaintiff, and defendant appealed. Judgment affirmed.
    Albín Provosty óf New Roads, attorney for plaintiff, appellee.
    M. T. Hewes of New Roads, attorney for defendant, appellant.
   LECHE1, J.

Plaintiff, as receiver of the “Liberty Starters Corporation,” sues for six hundred dollars, balance due by defendant on a stock subscription of one thousand dollars. On May 12, 1920, defendant subscribed for ten shares of stock in the Liberty Starters Corporation, of the par value of one hundred dollars each. He paid cash the sum of one hundred dollars, and subsequently made three cash payments, each in the sum of one hundred dollars, leaving the balance aforesaid still due on his subscription.

He first excepted to plaintiff’s demand on the ground that the petition discloses no right or cause of action. That exception, according to his argument, is based on the absence of any allegation in the petion, 1, that the shares of stock were delivered to the purchaser; 2, that tender of said stock was made after the purchaser defaulted in his payments; 3, that the corporation is solvent, and, 4, that the suit is instituted on behalf of an insolvent corporation to procure funds to pay its debts. There is no duty on the part of the corporation or of the receiver, either moral, logical or legal, to tender a certificate of stock to defendant before the same was fully paid for; on the contrary, the duty was on the part of defendant to tender the price of his subscription, and this, he admits, he failed to carry out. Whether the corporation be solvent or insolvent, defendant owes the price of the stock for which he subscribed, and th^re was ho necessity of alleging the purpose to which defendant’s indebtedness would be appropriated, for that is a matter that concerns the corporation or its receiver, its creditors and holders of paid-up stock. We believe the trial Judge properly overruled defendant’s exception.

On the merits of plaintiff’s demand, the defense may be summed up in the statement wherein he charges that he was induced to subscribe to stock in the plaintiff corporation by false and fraudulent representations, and alleging that plaintiff should not reap the benefit of its own fraud and ill-doings, he prays that he should be released from any obligation arising from said subscription and should be adjudged entitled to the return of the four hundred dollars already paid thereon. On the trial of the case, defendant failed to prove any representations or warranties, whether true or false, made to him by plaintiff corporation, either at the time that he signed his subscription for stock on May 12, 1920, or at any time previous thereto. So that the charge in his answer that he was induced to subscribe for stock by false and fraudulent representations on the part of the corporation entirely lacks any substantiation. Defendant did, however, produce and file in evidence a letter from the corporation of date May 27, 1920, and another letter of date October 1, 1920, received November 20, 1920. The first was in answer to an inquiry made by defendant and the second was in the form of a circular giving information as to changes in the management of the corporation. Defendant also produced in evidence printed advertising matter, in the shape of a prospectus said to have been issued by the plaintiff corporation, and also a printed circular describing the Liberty Starters, a mechanism for the starting of automobile and aeroplane engines, for the manufacture and sale of which the corporation had been organized.

We fail to find in these letters any representations shown by defendant to be false. The printed prospectus exposes the possibilities of an invention such as the promoters propose to manufacture and place on the market, and comparing the results of investments in similar inventions already on the market, it depicts the handsome returns which the corporation might expect from the manufacture and sale of Liberty Starter. We fail, however, to find in any of the advertising literature in evidence any statement that the corporation had closed contracts with foreign governments or with Henry Ford for the use of its Liberty Starter, as stated by defendant in brief.

We find no evidence to justify the charges which defendant makes against the managers of the plaintiff corporation. He was unfortunate in his investment, as many others have been before, and as others still will continue to be as long as human judgment is liable to err.

The receiver of the Liberty Starters Corporation was duly authorized to bring-the present action and he only acted. as was his right and duty in order to marshal the assets of the corporation.

Judgment affirmed.


author: BELL, J.

text:
    No. 10,293.
    Orleans
    F. RIVERS RICHARDSON v. WIDOW ROSEY CALOAVELLO.
    (January 4, 1926. Opinion and Decree.)
    (January 18, 1926. Rehearing Refused.)
    (March 1, 1926, Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    1.—Louisiana Digest—Courts—Par. 89, 119. Appeal Par. 356.
    Under Act 128 of 1921, practice in the City Court for the City of New Orleans, in cases where the Court has concurrent jurisdiction with District Courts of suits for money demands above $100.00 and not exceeding $300.00, is governed by the general laws regulating proceedings before the District Court. Where appeal in such cases is taken by motion, as provided by Code of Practice, Arts. 573 and 574, citation of appeal is unnecessary, and motion made in the appellate court to dismiss appeal for want of citation will be denied.
    2. Louisiana Digest—Pleading—Par. 66. Courts—Par. 19, 89. Appeal—Par. 43.
    Exception to the jurisdiction of the City Court ratione materiae is erroneously maintained where plaintiff, alleging ownership of property valued at $5,-400.00, sues defendant in the sum of $300.00 for the use and occupancy thereof. It is the value of the possession and not the value of the property which determines jurisdiction.
    3. Louisiana Digest—Pleading—Par. 23, 29, 62.
    A petition and prayer which presents a plea for recovery of money due as rents or compensation for detention, occupation and use by defendant of property belonging to plaintiff, supports a cause of action.
    4. Louisiana Digest—Sales—Par. 47.
    A promise of sale, while susceptible of enforcement by suit for specific performance, is not translative of property, and does not change ownership therein.
    Appeal from First City Court, City of New Orleans, Section “A”, Hon. W. Alexander Bahns, Judge.
    This is a suit for a sum of money for the value of the use and occupancy of property of real estate. Defendant filed an exception to the want of jurisdiction ratione materia, exception no right or cause of action and of non-joinder of parties. The city court tried the exceptions and maintained them, dismissing plaintiff’s suit.
    Plaintiff appealed. Defendant filed a motion to dismiss the appeal. Motion to dismiss denied. Judgment reversed and case remanded for trial on the merits.
    W. H. Talbot of New Orleans, attorney for plaintiff, appellant.
    Theo Cotonio of New Orleans, attorney for defendant, appellee.
   BELL, J.

Plaintiff sues defendant in the City Court of New Orleans for the sum of $300.00 for use and occupancy of his property, 1135 Royal Street. The petition sets forth that on July 2, 1924, plaintiff entered into a written agreement with defendant to sell her the above property for $5,400; that to bind the sale, defendant deposited with plaintiff the sum of $800.00 on account of the purchase price, the sale being for $800.00 cash, balance on “homestead years of credit”; that defendant obtained the homestead loan on the property, but failed and refused to take title after being put in default on May 22, 1925, by notarial act of tender; that, believing defendant would comply with her agreement to purchase, plaintiff permitted her to move into his property on January 11, 1925. Further alleging that defendant is indebted to him for use and occupancy of his property from January 11, 1925, until such "time as she might vacate the premises, plaintiff claims that a fair rental value of the property is $50.00 per month, and prays, by original and supplemental petition, for recovery of seven months’ rent, during which defendant has already been in possession, with a credit of $50.00, alleged to have been previously paid him by defendant. These are the material allegations of the petition.

On July 21, 1925, defendant filed an exception of want of jurisdiction ratione materiae.

On July 28, 1925, additional exceptions of no right or cause of action and of nonjoinder of parties were filed.

On August 1, 1925, defendant filed answer to the merits, reserving all rights by way of exceptions.

On September 15, 1925, the Court tried only the exceptions, as aforementioned, and after due consideration rendered judgment on October 7, 1925, maintaining all the exceptions and dismissing plaintiff’s suit. From this judgment plaintiff appealed, suspensively and devolutively, by motion filed October 14, 1925. -

Defendant and appellee has filed motion before this Court for dismissal of the appeal for want of citation of appeal. It is argued, in support of the motion, that citation of appeal is essential under Article 1134 of the Code of Practice; that there are no regular terms of Court in the City Court, and that under the authority of Mayor vs. Gaillard, 17 La. Ann. 120, the appeal must be dismissed.

In the cited case, it was held that, there being no regular terms in the Courts of Justices of the Peace, the provisions of Arts. 573 and 574 C. P., dispensing with citation where appeal was by motion in term time, was inapplicable, and that the appeal should have been taken with citation, as otherwise provided in Arts. 583 and 584, C. P. However sound the ruling as then made in the year 1865, the motion now before us must be considered in the light of recent legislation found in Act 128 of 1921, which directs that in cases, such as the instant one, where there is a money demand between $100.00 and $300.00, the practice before the City Court of New Orleans shall be governed by the general law regulating proceedings before District Courts.

In the present case, the motion for appeal appears to have been made one week subsequent to the judgment which was “read, rendered and signed in open Court.” Considering these facts and the recent statute just noted, it follows that the appeal herein taken by motion in open court, without citation, and in accordance with Arts. 573 and 574, C. P., was, in all respects, regular. The motion to dismiss the appeal must therefore be denied.

We are of the opinion, under the decision rendered by this Court in Babst vs. Hartz, et al., 1 La. App. 498, and several authorities there cited, that there was error in the judgment maintaining the exception of want of jurisdiction ratione materiae. In the above case it was decided:

“Where the issue in a case is not the ownership of property, but the right of possession thereof, it is the value or right of possession and not the value of the property which determines the question of jurisdiction of the appellate court.”

A like ruling may be applied in this case, to the question of jurisdiction ratione materiae, in regard to the court of original trial.

As to the exceptions of no right or cause of action, under which the allegations of the petition regarding ownership in plaintiff must be taken as true, we are also of the opinion that these exceptions should have been overruled. In Woodcock vs. Baldwin, 110 La. 270, 134 South. 440, there was. judgment for plaintiff in an action brought for “recovery of money due as rents or compensation for the detention, occupation and use by defendant of property belonging to plaintiff.” Tbe present suit involves a prayer for like relief.

The question of misjoinder has not been presented by either party to tbe appeal, and is therefore disregarded.

In tbe brief filed on behalf of appellant, we are asked to reverse tbe judgment appealed from as to tbe above mentioned exceptions and to “remand tbe case for trial on tbe merits”. From these facts, it must be assumed that appellant bas waived any rights which be may have bad resulting from tbe order rendered by tbe trial court on August 3, 1925, directing that tbe exceptions be taken as defendant’s only pleading in this suit. This order was granted on motion, and was doubtless predicated on the rules of court and, particularly, tbe provisions of Act 128 of 1921, which require that “all exceptions and answers must be filed at tbe same time”.

For tbe reasons above stated, it is ordered that tbe motion to dismiss tbe appeal taken to this court be denied; that the judgment appealed from be reversed and set aside, and that tbe case be remanded to the lower Court for trial on tbe merits.


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    No. -
    First Circuit
    RICHARD MORRIS v. E. FISHER & SONS
    (December 8, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The judgment of tbe trial court on matters of fact except where clearly erroneous will be affirmed.
    Appeal from tbe Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit for a settlement of account arising out of a contract by which tbe plaintiff agreed to cultivate crops on tbe share system.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    R. L. Garland, of Opelousas, attorney for plaintiff, appellee.
    P. R. Sandoz, of Opelousas, attorney for defendants, appellants.
   LECHE, J.

Tbe plaintiff, a negro laborer having with him, a family of five children all able to work, entered into an agreement with tbe defendants who own a farm on Bayou Boeuf, whereby be agreed to move on defendants’ farm and to cultivate tbe same in cotton and other crops on tbe share system. Defendants were to make tbe advances necessary to plant, cultivate and harvest tbe crops and tbe plaintiff was to contribute bis own personal labor and that of bis children and each of tbe parties to tbe agreement was to receive one-half of tbe crops, plaintiff however to reimburse defendants for their advances to him, out of bis share of tbe crops. This agreement was carried out by tbe parties and tbe crops were accordingly planted, grown and harvested during tbe current year, 1924, and tbe present suit is in tbe nature of a demand for an accounting.

Plaintiff charges in substance that be cultivated and harvested nineteen bales of cotton, which be turned over and delivered to tbe defendants who sold tbe same for tbe price and sum of $2114.49, and be sues for tbe specific amount of one-half tbe proceeds of tbe cotton, viz: $1057.25.

Tbe defendants in their answer, admit, that they received from plaintiff only eighteen bales of cotton, half of tbe proceeds of which coming to plaintiff, amounting to $990.84; they claim to have made advances to plaintiff in tbe sum of $926.66, and therefore admit that they owe plaintiff the difference between the proceeds of his share of the crop and the advances made to him, or the sum of $64.18, to which is to be added an additional credit, of' $89.01 making a total of $103.19, an amount which they tendered to plaintiff in full satisfaction of his demand.

The District Judge found that defendants owed plaintiff the sum of $320.18 and defendants have appealed from that finding. Plaintiff has answered the appeal and prays for an increase of judgment in accordance with his original demand.

In this court, the differences between the parties are limited to certain items in defendants’ account and involve purely questions of fact.

1.The- parties disagree as to the number of bales of cotton grown by plaintiff and delivered to the defendants. In considering the credibility of the witnesses, with none of whom the members of this court are personally acquainted, we find on one side a man of affairs engaged in other and perhaps extensive business and on the other side an illiterate negro with all of his attention centered on one single subject and upon that subject he depends for subsistence. We find that the negro’s statements are some times conflicting with one another, but that is not conclusive proof that his testimony is false as to the main fact in controversy and it may be that these apparent contradictions are the result of error, misunderstanding or ignorance. The fact however appears beyond dispute, that plaintiff brought to the Dubuisson gin, where all the cotton was delivered, nineteen bales of cotton. The records of the gin were kept by persons who so far as the record shows, have no interest in this controversy and it is upon this evidence that the District Judge found that plaintiff was entitled to be credited with nineteen bales. We see no ground to reverse him in this conclusion.

2. The trial court found as a fact that plaintiff was entitled to a deduction in defendant’s account, of $56.00, for expenses of last illness and funeral of his daughter, wife Philip Sam. This item is proved by the testimony of Fisher, and plaintiff’s attack upon its correctness, is vague, weak and unsatisfactory. • Plaintiff admits that defendants were to look to him for this money but says it was only up to the sum of $10.00. We think the trial judge erred in this finding.

3. An item of $9.00 .was also deducted from defendants’ account by the trial judge, as being a double charge, because the same amount had been charged to Philip Sam. This proof shows that this amount was paid by defendants’ to Dr. Brown and that the charge against Philip Sam was another and distinct item and for another service. We believe the trial judge again erred in making this deduction.

4. Another item contested in this court, is the charge by defendants of $221.21 paid for picking cotton grown by plaintiff. The district judge reduced that item to $120.00 and defendants strenuously challenge the correctness of that finding.. Defendants seem to forget that the account which they plead in compensation, is in the nature of a plea of payment and that it was encumbent upon them, to prove every item with the same certainty as if they had brought a direct suit for its recovery. Plaintiff had no right to answer or to take replication thereto and the court is to consider each item of the account as if specially denied. The burden under the law, was clearly upon defendants to prove with certainty and by a preponderance of evidence, the correctness of the same. Plaintiff was entitled to know to whom, when and for what particular work, each of these payments to cotton pickers were made.

The proof is lacking in these details. There is no doubt that defendants did put out money for picking plaintiff’s cotton, and with the lights before him, the district judge reached a conclusion which to us seems fair and just, and we see no reason to reverse his finding.

For these reasons the judgment appealed from is reduced from three hundred, and twenty 18/100 dollars to two hundred and fifty-five 18/100 dollars and thus amended, it is affirmed, costs of appeal to be paid by plaintiff and appellee.


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    No. 1622
    First Circuit
    YOUNG & DEBRITTON v. LOUISIANA RAILWAY & NAVIGATION CO.
    (December 10, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Railroads—Par. 86, 88, 89.
    Where mules are killed by their becoming frightened and running on a trestle and over an embankment, if the railroad prove that the engineer of the train was not at fault, the owner of the mules cannot recover.
    (See Act 70 of 1886 in regard to burden of proof where livestock is killed by a railroad. See also Civil Code, Article 2315. Editor’s note.)
    Appeal from t.he Twenty-fourth Judicial District Court, Parish of West Feliciana, Hon. Charles Kilbourne, Judge.
    This is a suit arising out of mules becoming frightened and running on a trestle and over an embankment.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Charles A. Holcombe and Justin C. Daspit, of Baton Rouge, attorneys for plaintiff, appellant.
    James J. Kilbourne, of St. Francisville, attorney for defendant, appellee.
   ELLIOTT, J.

Five mules belonging to plaintiff got on a railway trestle of defendant’s line of railway. Two of them 'fell or jumped to the ground about 25 feet below and were killed. One was pulled off and saved, while two got over the trestle. The one pulled from the trestle and the two that got over, were each more or less crippled.

The plaintiffs, alleging that they were all driven on the trestle as a result of the negligence and fault of defendant in the operation of a train, claim $600.00 damages for the two that were killed, and $200.00 on account of the injuries received by the others.

Defendant denies that the animals were driven on the trestle, and that defendant was negligent or at fault in the matter; and denies liability on account of the death and injuries alleged.

There was judgment below rejecting plaintiffs’ demand, and they have appealed.

It seems that plaintiff had 25 or 30 head of mules in a lot near defendants’ railroad. They got out of the lot in some way, and about 1:30 a. m., on the night of August 5, 1924, defendant’s engineer and fireman on southbound freight train No. 39, composed of 53 cars, discovered them on the railroad about a mile north of Tunica, about 300 yards ahead of the train; some on the track, others near by on the right-of-way. The engineer blew the stock alarm, expecting to frighten them off the track, which was open all the way to Tunica, but most of them, instead, ran down the track ahead of the train. The engineer could not see them but a short distance after they were first seen on account of a curve in the track; hut suspecting that they were still on the track ahead of him, he continued to sound his stock alarm in such a way that he aroused the neighborhood. As soon as he turned the curve he saw that they were still on the track, upon which he again sounded his stock alarm, and slowed down his train to 5 or 6 miles an hour; flashed his headlight off and on. almost continuously, and when he reached Tunica Station, stopped his train 2 or 3 minutes.

His train was here cut in two in order to ascend the Tunica hill; the grade of which commences around a curve about a quarter of a mile south of Tunica, and after pass-in, the trestle in question.

The trestle is approached by an' embankment 40 or 50 feet long; sloping on each side, commencing on a level with the ground and getting higher and higher until, at the trestle, it is about 20 feet high.

The testimony shows that the railroad curves immediately after leaving Tunica, and between Tunica and the trestles; and that you can not see the track around the curve, but it becomes straight about 300 feet from the trestle. The engineer testi•fies that when he stopped at Tunica the mules went ahead down the track, out of his sight around the curve; that when he had cut his train in two and started up, suspecting that they might still he on the track, he again sounded the stock alarm and ran very slow. When he got around the curve he saw them again, bunched up around the trestle, ahead of him on the track, upon which he immediately applied the air, and stopped his train as quick as possible.

The plaintiffs urge the testimony of Mr. Comeaux, that the train was not stopped until within about 40 feet of the trestle, and that of Mr. Spellman, who lives near the trestle; and, waked up by the stock alarm, saw the mules, pass his home with train following them, and told his wife that he was going to see them run into the trestle.

The testimony of Mr. Comeaux, that the train was not stopped until within about 40 feet of the trestle, is overcome by that of the engineer, conductor, fireman and Mr. Spellman; who testify that it was stopped within about 300 feet of the trestle.

The testimony of Mr. Spellman, so far as pertinent, is as follows:

Note testimony p. 81:

“About 1 or 1:30 I heard the engine blowing. I woke up and in just a few minutes after that I seen a lot of mules, and then I jumped up and ran out on the porch and I stayed there, and they went on down the trestle. The engine came right along behind them.”
“Q. ' When you first saw the mules were they running?
“A. No, sir, but they were walking pretty peart.”

Note testimony, pp. 83, 84, 85:

“I got up and went out on the porch before the stock passed my house and I set down in a chair and said I was going to see him run them into the trestle I says to the madam, I am going to see him run them into the trestle; and I set there.”
“Q. Well, what did you see—You saw these mules approaching the trestle?
“A. Went on down to the trestle and stopped.”

He does not say that the engineer ran the mules into the trestle; his statement that the mules were walking pretty peart when they passed his house, and that they went on down to the trestle and stopped; that the train came to a full stop about opposite his house; that his house is about 300 feet from the trestle, supports the testimony of the engineer; that when he started up his train at Tunica, he sounded his stock alarm, pulled slowly around the curve toward the trestle, about a quarter of a mile distant. That sounding his stock alarm around the curve, as soon as he again saw the mules on the track about 500 yards ahead voJE him, he applied the air and brought his train to a standstill as soon as possible, and within about 300 feet of the trestle, and that the mules did not go on the trestle until after his train had been stopped.

See testimony engineer. Note testimony pp. 71 and 74.

Indeed the reading of the evidence suggests the question: what is it that the engineer coiild have reasonably been expected to do that he did not do, after seeing the mules ahead of him near the trestle? The track was open on each side and the mules were not trapped. Nothing prevented them leaving the track, after leaving Tunica.

The railroad company is not liable because animals are afraid of trains. The engineer did not sound a stock alarm after seeing the mules bunched ahead of him near the trestle. Suppose these animals, having walked to the trestle and stopped, as Mr. Spellman says they did, were startled when they saw the train coming toward them around the curve; and instead of being moved by their animal impulse to go down the embankment, as all of them did except five; were moved instead to go on the trestle. The railway company is not at fault when it did not, after seeing their situation, frighten them into doing so.

The case Day vs. Railroad Company, 35 La. Ann. 694; and Mire vs. Railroad Company, 105 La. 462, 29 South. 935, and the other authorities cited by the plaintiff, do not control the facts in the present case.

The railroad company, having satisfactorily established that the killing or injury was not the result of fault or carelessness on its part, or the negligence of indifferent running or management of its locomotive or train.

The judgment appealed from is correct.


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    No. -.
    First Circuit
    MRS. PHILLIPINE MAJOR GUILLOT Individually and as Tutrix, v. LOUISIANA RAILWAY AND NAVIGATION COMPANY
    (November 10, 1925, Opinion and Decree)
    (December 22, 1925, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Negligence—Par. 42.
    In order to recover damages it must be proven that the defendant was at fault or negligent.
    2. Louisiana Digest—Railroads—Par. 60, 61, 62, 67.
    Where the evidence shows that, at the time of the accident, railroad had a flagman at the crossing holding a red lantern, and that the engine foreman was standing on top of the car two feet below which he had placed a fusee which threw a bright light ahead of the train, and the other members of the crew were attending to their duties, the engineer not running the train over six miles per hour, the defendant railroad was clearly not negligent and there can be no recovery for the accident.
    3. Louisiana Digest—Railroads—Par. 58.
    Trainmen have the right to believe that a person approaching- the railroad will exercise his senses of sight and hearing so as to perceive the approaching train in time to avoid an accident.
    4. Louisiana Digest—Railroads—Par. 78.
    In order to enforce the doctrine of the “last clear chance” it must appear that the trainmen after seeing the danger, by the exercise of ordinary care could have avoided it. Where the stop sigr nal was immediately given to the engineer who applied the brakes, which were in good condition, the doctrine of “last clear chance” does not apply.
    (Civil Code, Article 2315. Editor’s note.)

      Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit for damages caused by a collision between a railroad at a crossing and a bus on which the plainti'ff was riding.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dewey J. Sanchez and H. Payne Breazeale, of Baton Rouge, attorneys for plaintiff, appellee.
    Laycoek, Borron and Laycock, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

The defendant company’s railw’ay track rims north and south through the City if Baton Rouge. Main Street, one of its principal thoroughfares, runs east and west through said city, and is crossed at right angles by the track of defendant company. On the 2nd of Feb., 1923, at about eleven o’clock P. M., while Ludovic Frank Guillot, the deceased husband of plaintiff, was going over the crossing of said company on Main Street in an omnibus which was operated by Louis Simoneaux, and as the bus was about negotiating the crossing, Guillot either jumped out or fell therefrom, and, as a result, suffered injuries from which he died shortly thereafter.

Plaintiff, the surviving wife of deceased, charging that, the death of her husband was due entirely to the fault of the negligence of defendant, sues the latter in damages of $17,500.00, individually, and for a like sum for June Major Guillot, her minor child, with legal interest from judicial demand. The District Judge rendered judgment against defendant company for $10,000.00; $5,000.00 for the widow, and $5,000.00 for the minor, with legal interest as prayed for. The company appeals.

The bus in which Guillot was riding was the property of Louis Simoneaux who was regularly engaged in the transportation of passengers from the plant of the Standard Oil Company to the City of Baton Rouge. At the time of the accident the bus had entered the city, and was traveling on Main Street westward towards the river. At about the time the bus was nearing the crossing of defendant company on Main Street, a train of the company was backing up on its track from the direction of Laurel Street, south of the crossing, and was going northward. This train was made up of an engine, two gondolas or open cars, and a box car. It is clearly shown that Sumrall, the car engine foreman on this short train, had placed a fusee or' red light at about two feet below the top of this box car when he left North Boulevard Street several blocks south of the crossing. This fusee, the record shows, gives a brilliant, glowing light for a considerable distance along the track and is not affected by rainy or dark nights, being dimed only by the fogs. The night was dark or rainy when the accident happened, but there is no proof it was foggy, and the record shows the fusee was burning with its accustomed brightness up to the time the train was nearing the crossing. The members constituting the crew on the train say the bell was ringing as it was backing up, while several witnesses for plaintiff who were in the bus, deny that it was.

On this question there is some conflict in the evidence although it may be reasonably said that the parties in charge of the train were in a better position to notice if the bell was ringing or not. Be that as it may it is certain that the fusee was burning practically at the top of this box car, which was the “approaching” car, as it is described in the language of the trainmen. Three photographs were taken showing the view down the railroad track south of the crossing at Main Street. In taking photograph No. 1, the photographer was standing at a distance of 75 feet east of the railway track. From that point the photograph and evidence show that a person could see an object at 102 feet down the track, south from the crossing. By photo., No. 2, when standing 50 feet from the railroad track, it is shown an object could be seen down the track at a distance of 194 feet; and at 102 feet from the track, as shown by Photo. No. 3, the view could be clear along the track southward to a distance of 71 feet. It is also shown that at the time of the acident there was no impediment or building which could have obstructed the view along this railway track south from the crossing.

C. L. Leewald was driving the bus in which deceased was riding, was an experienced chauffeur and in the employ of Simoneaux as driver for the transportation of passengers. In accordance with its agreement with the City of Baton Rouge, defendant had placed a flagman or watchman at the crossing in question on Main Street and had established a system of flagging and signals for the protection of all street crossings. Simoneaux, owner of the bus, was riding on it when deceased was fatally injured. He says, he was sitting in front of the bus, on the left side of the driver and next to him. As he was coming westward, and was on the left, he had a clear view ahead of him, and southward down the track from' the crossing. He says, he saw the flagman with a red lantern in his left hand and white lantern in his right hand. At first he stated the red lantern was motionless, and persisted in this statement in answer to several questions on cross-examination. Finally, he was asked the following: “And the flagman was standing out in the street, with a red lantern in his left hand, stationery, holding his left hand out towards the center of the street, wasn’t he?” Answer: “Yes, sir”. The hand" of the flagman, though motionless, was being held towards the center of the street and was unquestionably intended as a signal of danger. The proof shows that a Ford car passed the bus on Main Street going west and in the same direction, about 100 feet east of the crossing. Simoneaux says the Ford car went across the track and was ahead of him 75 feet when it cleared the crossing. His statement is that the flagman came out as soon as this Ford car went across. Making proper allowance for the width of the track, Simoneaux must have been at a distance of not less than 70 feet from the track when he saw the flagman pointing to the center of the street with his red lantern. He says that he did not see the fusee or red light before the bus got about 20 feet, from the railroad track. It is unbelievable that a man situated as he was on the front seat of that bus with the glowing light of that fusee shining from the top of that car and with an unobstructed view down Main Street from the crossing, as was shown by the photos and «evidence above referred to, did not see that train before he reached to a point of about 2.0 feet from the track. To say 'the least, this is very singular, if it be true, when we consider that this witness was the owner of the bus then regularly engaged in the transportation •business. Leewald, the driver, says the flagman had two lights, white and red. As to the red he testifies, he had it hanging by his side, and, was not holding it out and in this particular he does not agree with Simoneaux. He says, he did not see the the train until he was 20 feet from the track; that it was then too late to stop, that he had speeded and went across. Strange to say, this driver, did not see a red light or fusee, which, however, was seen by Simoneaux who was not driving and by most of the other witnesses who testified in the case. That the driver of a bus, an experienced chauffeur, with 15 or 20 passengers in his charge at such a crossing, on a dark night, should have failed to see the glaring light of this fusee, is indeed passing strange. He must certainly have been oblivious of his surroundings, and mindless of the responsibilities of his position.

Mansor, witness for defendant, was in the Ford car which passed ahead of the bus on Main Street going towards the crossing. Rice was driving the Ford. Mansor saw the flagman with a red lantern in his left hand and a white in his right. He was, he says possibly 50 or 100 feet from the crossing when he first saw the flagman, who was then holding out the red light straight. In this particular his statement is in accord with the testimony of Simoneaux. He also saw the fusee, and was then about 30 or 40 feet from the track. He states they had ample time to stop, but that Rice drove across the track, and, adds: “We shouldn’t have done so.” Rice, the driver of the Ford, saw the flagman with a white and red light itL his hands, but could not say in which hand he held the light; could not say how far he was from the crossing when he sighted the flagman. He explains that when he left the Standard Oil plant he saw a train headed south and when he saw the flagman with his lights, thought it was for the train coming from that direction, and looked to the north side of the crossing. Obviously, his vision was fixed in that direction which accounts for the fact, as we read the evidence, that he did not take in the situation as fully as was done by Mansor, his campanion in the Ford. Rice, however, saw the red light on the box car, and says he saw the flagman in ampié time to have stopped, if he wanted to. This Ford car, as before stated, had passed ahead of the bus, and when it cleared the track, was about 75 feet from the bus, as was testified to by Simoneaux. Whether it was at that distance ahead or not quite that' much, it is quite certain that it had left a clearance or a space between it and the bus of some 50 or 60 feet. It is impossible to believe, that Simoneaux and Leewald who were seated on the front seat of the bus did not see this flagman, and the fusee on the car, in time to stop the bus to allow the safe passing of the train over the crossing. The preponderance of the evidence clearly shows that the flagman was standing a few feet west of the railway track, was in or near the center of Main Street when the bus approached the crossing. He was at his post of duty, was holding in his left hand a red light which, Simoneaux and Leewald unquestionably knew, was a danger signal. It must be observed that the flagman was not a traffic officer, and could not by force, stop the bus from going across. All he could do was to hold out the red light as a warning to travelers coming towards the crossing. The duty of the driver of the bus was to stop and allow the train to pass to which the flagman had given a semicircle signal with his white light, meaning that the crossing was clear. Instead of stopping, Leewald stepped on the gas as he was directed by Simoneaux, and dashed over the crossing, and as he was about negotiating it, deceased either jumped out or fell from the bus which was then dangerously near the moving train. Obviously, the driver took a desperate chance and his bus with several other passengers had a hair-breadth escape. Simoneaux and Leewald were clearly at fault. Even if they were at fault, counsel for plaintiff says, their negligence can not be imputed to the deceased, who was a passenger for hire. This is the law, and no authority is needed to be cited in support of this contention. It is equally certain that the railway company, defendant, cannot he held liable unless it was at fault or negligent. This is also unquestionably the rule of law, under the plain provisions of Article C. C., 2315. upon which this action is founded. It is well shown that defendant company had a flagman at the crossing at the time for the reasons above given, and which it is not necessary to reiterate. It is equally well established that as a precautionary measure the engine foreman who was standing on top of the car had placed a fusee about two feet below the top which threw a bright light ahead of the train, and on its sides, by reflection. The other members of the crew, it appears, were all attending to their duties, including the engineer who was backing up at the slow rate of about 6 miles per hour. The defendant company was therefore living up to all the requirements of the general law governing its duties under the existing situation, and the obligations it had incurred under its agreement with the City of Baton Rouge. It was managing its train with care, and had all the safeguards that could be expected for the protection of travelers in vehicles or otherwise that might be passing over the crossing in question, it was therefore not at fault and can not be held liable, unless it be under the plea of the “Last Clear Chance”, which though not directly pleaded was permitted to enter as a factor in the determination of the case because of the enlai’gement of the pleadings, which it is contended, was effected by the character of the evidence admitted without objection.

The proof shows that the flagman who died before the trial of this case gave the signal to Sumrall, the engine foreman, with his white lantern to come on with his train; that this meant the track was clear at the crossing. Sumrall, upon receiving this signal, proceeded on his way with the train which was then about 100 feet from the crossing. As he got at about 75 feet of the crossing he saw the bus. Undoubtedly he had every reason to think that the driver of the bus had seen or heard his advancing train. When he saw the bus, he said it never occurred to him or he never thought that the driver of the bus would try to cross ahead of the train. Obviously, any normal person running a train under such circumstances would have acted in a similar manner. In such situations the general rule is that: “Trainmen have the right to believe that a person approaching the railroad track will exercise his senses of sight and hearing so as to perceive the approaching train in time to avoid all accidents;” Cook vs. Louisiana & N. W. R. Co., 130 La. 917, 58 South. 767; Sickinger vs. Board of Directors of Pub. Schools for Parish of Orleans, 147 La. 487, 85 South. 212; Elliott on Railroads, No. 3, Sec. 1646. The engine foreman was therefore not negligent in thus assuming that the driver of the bus would not undertake to pass ahead when in such a perilous situation. At that time, Sumrall says the flagman was standing in the middle of the street near the track, and that his engine bell was ringing. No one could have reasonably expected, under such conditions, that the bus would dash over the crossing.

When Sumrall realized that the bus would attempt to cross, he says, he immediately gave the stop signal to the engineer to stop the train. The engineer applied the brakes at once, which were in good order, but could not stop his train before going over the crossing. In Tyer vs. Gulf C. & S. F. R. Co., 143 La. 177, 78 South 438, the court said that in order to enforce the humanitarian doctrine of the “Last Clear Chance” it must appear that plaintiff has clearly shown the defendant, after seeing the danger, could by the exercise of ordinary care have avoided the injury, etc. “Here, before explained, the engine foreman had the right to believe when he first saw the bus that the driver would not attempt to cross the track but when he realized he would undertake to do so, he immediately gave the stop signal to the engineer, but without avail. It was at that time that he saw the “danger” land he unquestionably exercised prompt and ordinary care by doing all in his power to avert the accident which the engineer could not possibly avoid for the reasons above stated. Considering this case from every angle either of law or fact, we are firmly convinced that the defendant company was not at fault, and that judgment was erroneously rendered against it.

It is therefore ordered and decreed that the judgment be avoided and reversed and that the demand of the plaintiff, for herself, individually, and as tutrix, be and is hereby rejected at her cost in both courts.


author: REYNOLDS, J.

text:
    No. 2064
    Second Circuit
    MRS. FRANCES O. ALLEN v. S. BENDER
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Court)

    I. Louisiana Digest—Evidence—Par. 52, 53, 351.
    Plaintiff carries the burden of establishing by a fair preponderance of evidence the certainty of her cause of action.
    Lazarus vs. Newman, 52 La. Ann. 1957, 28 South. 331.
    Kling vs. Masons’ Fraternal Acc. Assn., 104 La. 763, 29 South. 332.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit for a commission for having found a purchaser for property belonging to defendant.
    There was judgment in favor of defendant and plaintiff appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellant.
    Murff, Mabry & Perkins, of Shreveport, attorneys for defendant, appellant.
    STATEMENT OF THE CASE
    Plaintiff seeks to of defendant the sum of $1000.00 as a commission for having found a purchaser for property belonging to defendant at the price of $20,000.00, at which price plaintiff claims she was authorized to sell the property.
    Defendant denies each allegation of plaintiff’s petition.
    The district court rendered judgment in favor of the defendant and the plaintiff appealed.
   REYNOLDS, J.

OPINION

Plaintiff claims to have been employed by defendant to sell certain property for him at the price of $20,000.00. Defendant denies employing plaintiff to sell his property at any price.

The district judge, after hearing the witnesses and observing their manner of testifying, rejected plaintiff’s demand. We have carefully read all of the evidence.

Plaintiff swears positively that she was employed by defendant to sell his property for $20,000.00 and that out of this amount she was to receive $1000.00 as a commission.

Defendant swears equally positively that he did not employ the plaintiff to sell his property.

Defendant’s testimony is corroborated by that of his wife who, in a perfectly fair and frank manner, says, page 47:

“Q. I will ask you, if any time, Mrs. Bender, Mr. Bender ever authorized (you to sell) that home and fix the price?
“A. No, sir. I am the one that wanted to sell. I like Mrs. Allen. She’s my friend. She came there one day to sell me an electric car and I told Mrs. Allen to get me a customer provided Mr. Bender would agree to sell that property and I would huy a new home. That’s what I said to Mrs. Allen. She was several' times with me. I didn’t go to her. I told her I would sell. In the meantime I left for St. Louis and New York; when I got back I told her I had decided to sell for $20,000.00 net provided Mr. Bender would agree to it.”

Defendant is also corroborated by Miss Rosalie Maroun and by A. L. Quinna.

Miss Maroun testified, page 43:

“A. * * * Mrs. Allen was figuring on a deal in some way and called up something about the house and Mr. Bender says: ‘I don’t want to sell my home’, and then Mrs. Allen rang up two or three times and he told her, ‘I don’t want to sell my home’. It seems that he told her he didn’t want to sell and she rang up two or three times the next day and then he finally told her, said: T am not going to sell my home’; he told her, T don’t want to sell it’.”

A. L. Quinna testified, page 35:

“Q. Did you hear Mr. Bender fix any price or say I will take so much or whether he would sell or not?
“A. He said that he would not sell at all; that if any papers were drawn up he would not sign them.
>js sfc

Page 36:

“Q. Now, soon after Mrs. Bender got back from St. Louis Mrs. Allen called up Mr .Bender and he told her that he did not want to sell it?
“A. Yes, sir.

Page 37:

“Q. You say that Mr. Bender—you say that Mrs. Bender told Mrs. Allen she would not have to get Mrs. Bender’s approval?
“A. Yes, sir, that was before that that Mrs. Allen came down and met Mrs. Bender there in the office.
“Q. She would have to get Mr. Bender’s approval?
“A. Yes, sir.
“Q. Now, when was that? After her trip to St. Louis?
“A. No, sir, before her trip.”

From this evidence we are not prepared to say that the finding of the district judge was clearly erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: ODOM, J.

text:
    No. 2093
    Second Circuit
    FRANK SCHUTTE v. CITIZENS BANK OF HAYNESVILLE, LOUISIANA
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Bills and Notes— Par. 32.
    When a bank credits a depositor with the amount of a check drawn upon it by another customer and there is not want of good faith on the part of the depositor, the act of crediting is equivalent to a payment in money and the bank cannot recall or repudiate the payment because upon an examination of the account of the drawer it is ascertained that he is without funds to meet the check, though when the payment was made the officers labored under the mistake that there was sufficient funds.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Claiborne, Hon. J. E. Reynolds, Judge. •
    This is a suit against a bank to recover the amount of a deposit credited to the plaintiff.
    • There was judgment for the plaintiff as prayed for and defendant appealed.

      Plaintiff moved to amend the judgment allowing interest.
    Judgment amended allowing interest and affirmed,
    R. L. Williams, of Homer, attorney for plaintiff, appellee.
    W. P. M. Meadows, McClendon & Seals, of Homer, attorneys for defendant,' appellant.
   ODOM, J.

On July 5, 1922, the plaintiff presented to the defendant a check drawn by one Ben T. Mays in his favor on the Citizens Bank of Haynesville for $651.00, which check was accepted by the bank and the proceeds deposited to the credit of plaintiff and a duplicate deposit slip for the same issued to him.

Some time later the plaintiff drew his check for the amount of the deposit on said bank and payment was refused.

Plaintiff brought this suit against the bank to .recover the amount of the deposit.

The defendant, in answer, denied indebtedness on the ground that “at the time said check was accepted by defendant for deposit and said deposit slip issued on July 5, 1922, the funds to the account of the maker, Ben T. Mays, were not sufficient to cover payment of said check, nor were such at any time thereafter sufficient to cover payment of the same”.

And the bank alleged further, in answer, that at the time said check was accepted for deposit and the deposit slip issued, the funds of the said Ben T. Mays on deposit in its hands stood attached under garnishment by his creditors and that the paying teller who “accepted said check and issued said deposit slip was unaware of the fact that the account of said Ben T. Mays at that time and prior thereto stood attached and garnisheed, and was insufficient to cover payment of the same”.

There was judgment in the lower court in favor of the plaintiff as prayed for and the defendant appealed. Plaintiff moved to amend the judgment so as to allow interest at 5% per annum from July 5, 1922, until paid.

OPINION

The testimony shows that on July 5, 1922, the day on which the transaction between plaintiff and defendant took place, Ben T. Mays, the drawer of the check, had on deposit in the bank the sum of $389.92, an amount insufficient to pay the check presented.

It also shows that on the same day a magistrate served notice of seizure of a part of said fund through garnishment process by two of Mays’ creditors. There appear to have been two seizures made, each for $75.00.

Plaintiff contends that these seizures were illegal because the notices were served by the magistrate himself and not by an officer authorized under the law to make the service.

Under the view which we take of the case, it is not necessary to pass upon the validity of these seizures, as we think the bank is liable to plaintiff in any event under the circumstances.

When plaintiff presented the check to the bank it was received by the paying teller, Miss Brooks, who examined th§ check and asked him if he wanted the amount in cash or whether he wanted credit for it on his account. He informed her that he wanted to deposit the amount to his credit, whereupon she made out a deposit slip as follows:

“Deposited by
“Frank Schutte “With
“Citizens Bank
“Haynesville, La.
“7 /5 /1922.
“Please list each check separately.
“Currency Dollars Cents
“Currency
“Silver
“Gold
“Checks as follows:
“Ben T. Mays 651 00
“Total: $651
“.Duplicate.
“See that all checks and drafts are endorsed.”

She delivered to plaintiff the duplicate thereof as he did not have with him his passbook.

Plaintiff says that when the check was presented to Miss Brooks, the teller, she “turned to the right”, another cashier there; she asked him what about the check; he told her to go ahead and look; she did and she returned to me, asked me if I wanted the cash or put to my credit. I told her just put it to my credit, so she did”.

Plaintiff’s wife, who was present at the time, was sworn and corroborated his testimony on that point in detail.

Miss Brooks, the teller, says that she did not look at the books but said: “Well, he came in and I asked him if he wanted credit for it; he said he did'; I made out the deposit slip and handed it to him; that was all that was said between us. I didn’t look at the books. I just gave him credit for it.”

She said that at the time the books were within three feet of her. She denied having a conversation with anyone in the bank and no one in the bank seems to recall that she did. Whether she did or did not we think is immaterial.

Plaintiff left the bank immediately. Two days later, on July 7, as shown on the books of the bank, this check was charged back to plaintiff.

Mr. Queenan, the cashier of the bank, says that it was discovered that Mays, the maker of the check, did not have sufficient funds on deposit to cover the check and that what funds he had on deposit were attached, for which reason the check was dishonored and charged back to plaintiff.

There is a conflict in the testimony as to whether plaintiff had immediate notice that the check was charged back to him. Plaintiff says he had no notice of that fact until some time later, either July 22 or August 22, when he drew his check on the bank for the amount of the deposit, which was turned down. He says that he then went to the bank and asked why payment of his check had been refused' and was then told that the check which he had deposited had been charged back to him for the reasons above stated.

Mr. Record, an employee of the bank, says that the plaintiff was in the bank about two days after the deposit was made, possibly on the 8th, at which time a conversation came up over the matter, and that plaintiff was then informed that the bank had charged the check back to him and that he tried to give the check back to plaintiff who refused to accept it.

Queenan says that he then mailed the check to plaintiff. But the record shows that plaintiff did not receive it, although he was in the city and remained there some time thereafter. The letter enclosing the check went to Oklahoma and was finally returned to the bank and the check and the letter remained in the files of the bank until delivered to the bank’s attorneys to be used in this suit.

Even if we accept the testimony of the bank’s employees as true, it is plain that plaintiff had no notice of the dishonor of the check which he deposited for at least two days and possibly longer after it was deposited and after he had received credit therefor.

The check which plaintiff presented was drawn on the defendant bank. The transaction as above detailed was an unqualified acceptance of the check. Whether the teller who handled the check looked at the books to ascertain the condition of the drawer’s account or not makes no difference. She had the opportunity of looking and of ascertaining that fact, as the books were within three feet of her at the time she accepted the check. It is certain that she asked for no delay in which to ascertain the condition of Mays’ account at the bank. The check was accepted and the deposit placed to plaintiff’s account without reservations.

According to the bank’s books the deposit was allowed to remain on the books for at least two days. The bank had no right to then cancel the deposit and charge the cheftk back to plaintiff. When the bank thus accepted and paid the check it became a completed transaction and the bank was bound.

The rule is thus stated in 3 R. C. L., Section 153, page 526:

“When a bank credits a depositor with the amount of a check drawn upon it by another customer and there is no want of good faith on the part of the depositor, the act of crediting is equivalent to a payment in money and the bank cannot recall or re-pudiate the payment because, upon an examination of the account of the drawer, it is ascertained that he is without funds to meet the cheek, though when the payment was made the officers labored under the mistake that there was sufficient funds. In such a case the bank could have received the check conditionally and have come under obligation to account to the holder for it only in the event that an examination of the account of the drawer it was found that he had funds to meet it or in the event that he provided funds for its payment. Or it could have asked for time to examine the account that it might determine whether it would accept and pay or dishonor the check.”

In support of this text there is cited decisions from the United States Supreme Court and from Alabama, Illinois, Indiana, Kansas and New York. The only dissent from the rule seems to be from the courts of California.

In the case of Henry Cohen vs. First National Bank of Nogales, Arizona, the Supreme Court of that state in 198 Pac. 122 (15 A. L. R. 701), held that the bank having received for a depositor a check on itself for credit to his account and having mailed to him a notice and a deposit slip showing that the credit was made, cannot charge back the check when it proves to be an overdraft.

This case is on “all fours” with the case at bar. The organ of the court cites and reviews decisions by the United States Supreme Court and by the courts of last resort of many of the states.

In 15 A. & R., beginning on page 709, there is a lengthy annotation of authorities on the subject of “right of a bank to charge back cheeks drawn upon itself which it has credited to a depositor under the mistaken belief that the drawer’s account is good”.

With few exceptions, notably those from the California courts, the decisions are to the effect that the bank has no such right in the absence of fraud or deceit on the part of the depositor.

In the instant case, no fraud or deceit is charged to the plaintiff.

The receiving of the check by the defendant and the crediting of plaintiff’s account with the amount thereof and the issuance to him of a duplicate deposit ticket was an acceptance of the check.

“Any act of the drawee which evinces a consent to comply with the request of the drawer will constitute an acceptance.”

5 R. C. L., page 520, Section 42.

“The acceptance of a bill is the signification of the drawee of his assent to the order of the drawer.”

Section 132, Negotiable Instruments Law, (Act 64 of 1904).

The acceptance of the check by the defendant rendered it the primary obligor. Having thus accepted the check, it makes no difference whether the maker had sufficient funds in the bank to pay it or not; the bank is bound.

See Commercial National Bank of Woodville vs. First National Bank of Morgan City, 147 La. 925, 86 South. 342.

We hold that the defendant unconditionally accepted the check by receiving it and issuing to plaintiff the deposit ticket.

But even if that were not true the bank is still bound for it failed to return the check within twenty-four hours after its presentation.

See Sections 136 and 137, Negotiable Instruments Law (Act 64 of 1904).

Learned counsel for defendant says, in brief, that if the court should hold that defendant accepted the check by giving plaintiff credit therefor, it was only a qualified acceptance under Section 141 of the Negotiable Instruments Law, and he calls attention to the fact that the deposit ticket issued to plainiff has printed on the back of it the words, “all items credited subject to final payment”. He says this constituted notice to plaintiff. But the notice printed on the back of the deposit slip is fatal to defendant’s contention. That notice reads in full as follows:

“NOTICE TO CUSTOMERS:

“All items credited subject to final payment. All items not payable in Haynes-ville received by this bank for credit or collection are taken at the owner’s risk. This bank as agent for the owner will forward same to collecting agents outside of the city, using its best judgment in the selection of such agents, but should they convert proceeds or remit in checks or drafts which are thereafter dishonored, or should not come into full possession and final payment for said items, the amount for which credit has been given will be charged back.
“This bank contracts no responsibility for neglect or default of collecting agent.”

The check was not taken for collection. It was not only payable in Haynesville but it was payable by the defendant bank itself. It was not credited subject to final payment. It was instantly paid by the defendant crediting the depositor with it. If the account of the maker of the check was not in such condition as to warrant the payment of the check, or if his credit at the bank was not good, the defendant has only itself to blame for its loss.

The court below allowed no interest and plaintiff moved to amend the judgment so as to allow interest at 5% per annum. We see no reason why he should not have interest at least from judicial demand until paid.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to allow interest at 5% per annum from judicial demand, and as thus amended that it be affirmed with costs.


text:
    No. 2039
    Second Circuit
    NABORS BROTHERS, INC., v. J. M. WARREN
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court as to matters of fact being clearly correct is affirmed.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of DeSoto, Hon. J. H. Boone, Judge.
    This is a suit to collect a balance due on an open account.
    There was judgment for. plaintiff.
    Defendant appealed.
    Judgment affirmed.
    T. J. Magee, of Mansfield, attorney for plaintiff, appellee.
    Lee and Bell, of Mansfield, attorneys for defendant,, appellant.
   ODOM, J.

This is a suit to collect a balance due on an open account.

The District Judge rendered judgment in favor of the plaintiff and against the defendant for $177.32. He submitted a written opinion which reads as follows:

“This is a suit on open account for the sum of $302.87, with interest at the legal rate from Peb. 21, 1921, until paid. Defendant denies the indebtedness,, ¡and pleads payment in full of such accounts as he made with plaintiff. Only questions of fact are involved.
“There were two accounts run by defendant and his wife at the store of plaintiff, one being the ‘hotel’ account, which was looked after and paid by defendant’s wife, and the other being the ‘feed1’ account, which was contracted, looked after and to be paid by defendant. The two accounts were run in such way that confusion and error regarding them could easily arise.
“It may be that the defendant purchased and paid for at the time many items that did not go on the slips of paper or books of the plaintiff; and it may also be that defendant paid amounts for which he was not given credit, though the goods were charged to him. This appears entirely possible, for the reason that when defendant’s account was made out in 1921, both defendant and Mrs. Oats, the manager of plaintiff’s business, were surprised to find it so large. Defendant recognized the fact that he was owing plaintiff some amount, however, and was willing to pay anywhere from $150.00 to something above $200.00 considering the old Chandler as of little value, on it.
“The court has examined the accounts and receipts and checks, and the testimony, with care, and has been unable to find where plaintiff gave defendant or his wife credit for the $100 paid and receipted for on Oct. 4. 1920. Defendant is clearly entitled to this additional credit. Then, of date Dec. 28, 1920, defendant gave plaintiff a check for $25.55, which amount shows that it was given in payment of some bill or amount owing plaintiff, since defendant would not have given a check for $25.55 for the purpose of getting that much money. The court is of opinion that he is entitled to a credit for this amount. With the two items of additional credit as represented by the exhibits D3 and D14, totalling $125.55, the amount sued for is reduced to the sum of $177.32, for which amount there will be judgment.
“It is therefore ordered, adjudged and decreed that plaintiff, Nabors Bros. Inc., have and recover judgment against defendant Jno. M. Warren, in the sum of one hundred seventy-seven and 32-100 dollars with 5% per annum interest thereon from Feb. 9, 1923, until paid, together with all costs of suit.”

The case was not argued orally before us but whs submitted on briefs filed by the respective parties.

Counsel for defendant seems to find no fault with the District Judge’s opinion, except that he says, in brief, that the sum of $100.00, which was paid by defendant on November 18, 1920, is not credited on the account. He says the same with reference to the sum of $100.00 paid October 4, 1920; and the sum of $25.55 paid December 28, 1920.

It will be noted that the District Judge found, as a matter of fact, that the items of $100.00 paid October 4, 1920, and $25.55 paid December 28, 1920, were not credited on the account, and in granting judgment he gave defendant credit for those two items.

Counsel for defendant is in error when he states that the item of $100.00 paid November 18, 1920, was not credited on the account.

We have carefully checked the account, as did the District Judge, and we find that the last named item was credited on the account as. of date October 19, 1920.

We have read the testimony and checked the accounts filed together with the receipts and have reached the conclusion that the District Judge made no error in his conclusion as to the balance due by the defendant.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


author: WEBB, J.

text:
    No. 2025
    Second Circuit
    M. BEN POSEY v. MRS. SWEETIE CALDWELL
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 518.
    Where the testimony offered by the parties related to certain instruments which were filed with leave to substitute copies, and the record does not contain either the originals nor the copies, defects in the record should be attributed the appellant and the appeal dismissed.
    Appeal from the First Judicial District Court of Louisiana, -Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a. petitory action in which the plaintiff seeks to be decreed the owner of land.
    There was judgment for plaintiff and defendant appealed. On motion to dismiss filed by plaintiff, appellee, appeal was dismissed because the record filed in the appellate court was incomplete.
    Scheen and Blanchard, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is a petitory action in which .plaintiff seeks to be decreed the owner and. to be placed in possession of an undivided interest in property which, he alleges, was acquired by inheritance from his mother and brother.

The defendant admitted plaintiff’s allegations as to the manner ■ in which the property was acquired, and set up the following special defences:

1. The prescription of ten years under a title alleged to have been translative of property, acquired in good faith, and possession for more than ten years.

2. A plea of estoppel, in which the defendant alleges that she had acquired the property by mesne conveyances under warranty title out of Sam. B. Posey, father of the plaintiff, and that plaintiff was bound to warrant the title of defendant.

Trial was had in the District Court and judgment rendered in favor of plaintiff and defendant appealed.

The plaintiff has filed a motion to dismiss the appeal on the ground that defendant abandoned same by failing to file the record in this court within the time fixed by the order of appeal.

MOTION TO DISMISS

The record shows that the judgment Was signed and filed in the District Court on July 28, 1923; that an appeal was granted and made returnable September 28, 1923; and that an appeal-bond thereunder was filed on July 31, 1923.

The transcript or record filed here bears the following notation: “Filed September 11, 1925, as of July 31, 1923. . A. E. Ewing, Clerk Court of Appeal”, which is explained as follows:

At the time the appeal was granted and until January, 1925, the Clerk of'the First District Court of Caddo parish acted as the Clerk of this Court, and in his capacity as Clerk of this' Court he kept a minute book in which he noted the appeals which had been granted and perfected to the extent of filing the appeal bond. On the date the appeal in this case was thus perfected, the Clerk of the District Court, acting in his, capacity as Clerk of this Court, noted the appeal, and since the appointment of the present' Clerk of this Court the records coming up from the First District Court of Caddo parish have been filed here as of the date shown by the notation of the Clerk of the First District Court acting as

the Clerk of this Court.

We have no knowledge of what may have been the custom of the Clerk of the District Court when acting in the dual capacity as to the preparation of the record or transcript, that is, whether it was the custom to arrange the record and attach thereto the usual certificate of its completeness before or after the return day, but whatever may have been the custom the record remained in the office and custody of the Clerk of the District Court.

There was no rule of this Court requiring the Clerk of the District Court, in his capacity as Clerk of this Court, to segregate the records of causes appealed from the other records in his office, and while it may be said that this Court did not actually have the custody of the record until the record was filed by the Clerk of the District Court acting in his capacity as Clerk of this Court, it may also -be said that this Court was in a manner vested with authority over those records in cases where an appeal had been perfected in the custody of its Clerk.

We cannot say that the failure to have arranged the record and to have segregated it is attributable to the. appellant, and we are therefore of the opinion that the record should be considered as filed in this court as of date July 31, 1923.

The record which has been filed here is not complete, and the certificate of the Clerk of the District Court shows that .it is not complete.

The testimony which was offered by the parties related to certain instruments which were filed with leave to substitute copies, and the record does not contain either the originals nor the copies, and we are of the opinion that wé should not consider the case from the incomplete record.

The appellant should examine the record to ascertain whether or not it is complete, or at least the certificate of the Clerk, and we are of the opinion that such defects in the record should be attributed to the appellant and the appeal dismissed, and it is so ordered.