text:
    No. 3062
    Second Circuit
    AULT & BURDEN v. SHEPHERD ET AL.
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Builders and Buildings — Par. 5, 7.
    A supplemental agreement made between a bonding company, the contractor and the sub-contractor whereby the contractor agrees 'to make necessary advances through the bonding company to pay all bills for materials and supplies used by the sub-contractor when interpreted together with the balance of the agreement whereby all the obligations of the bonding company remain in full force and effect, must make the bonding company liable for all advances made by the contractor to the sub-contractor whether for material, labor or cash for pay-rolls.
    2. Louisiana Digest — Builders and Buildings — Par. 5, 18.
    A stipulation in a building contract that no claims for extras shall be valid unless made in writing is valid and binding upon the parties, and when the contract so provides, and where there is no written demand for such extras, no recovery can be had in the absence of a waiver of that stipulation or can parol evidence be introduced to prove the extras.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Ault and Burden against J. C. Shepherd et al.
    There was judgment for plaintiffs and defendants, appealed.
    'Judgment amended and affirmed.
    Thigpen, Herold, Lee and Cousin, of Shreveport, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

On May 28, 1923, the plaintiffs, Ault & Burden, entered into a contract to build the Washington Hotel in the City of Shreveport.

On January 25, 1924, said Ault & Burden entered into a contract with the defendants, J. C. Shepherd & Company, to do the lathing and plastering work for said structure at a stipulated price.

Shepherd & Company furnished bond in the sum of $40,000.00 to secure the performance of the contract.

During the progress of the work, Shepherd & Company became financially embarrassed and were about to default on their contract, whereupon a separate or supplemental written agreement was entered into between Ault & Burden, the general contractors, and Shepherd & Company, the sub-contractors, with the concurrence of Shepherd & Company’s bondsman to the effect that Ault & Burden were to advance to Shepherd & Company all such sums of money as might be necessary to take care of Shepherd & Company’s pay-rolls until the work under the sub-contract was completed and to charge all such sums to the sub-contractor, and if the sums so advanced exceeded the amount due the sub-contractors under the contract, such excess payments should be refunded to Ault & Burden by the sub-contractors or by their bondsman.

Ault & Burden bring this suit against Shepherd & Company and the Standard Accident & Insurance Company, Shepherd & Company’s bondsman, for $1,915.71, which they allege, they advanced to Shepherd & Company in excess of the amount due under the contract.

Plaintiffs also alleged that the subcontractors, Shepherd & Company, had caused to be inscribed in the mortgage records of Caddo Parish a statement showing that plaintiffs are indebted to them in the sum of $6,165.47 coupled with an affidavit claiming a lien on the Washington Hotel for said amount, which statement and affidavit are alleged to be untrue, and they asked that said inscription be can-celled and erased from the records.

Defendants, in answer, ■ denied any indebtedness to plaintiffs and alleged that plaintiffs are indebted unto them in the sum of $6,165.47

“for extras done at the special instance and request of said Ault & Burden, as shown by statement hereto attached and made part hereof.”

There was judgment in the lower court in favor of plaintiffs for the full amount sued for, ordering the cancellation of the inscription of the • lien filed by defendants, and rejecting defendants’ reconventional 'demand.

Defendants appealed.

OPINION

There is but little controversy over plaintiff’s claim against defendants for $1,915.71 for • advances made in excess of the contract price for the work.

Attached to plaintiffs’ petition is an itemized statement dated .January 1,, 1925, .addressed ,to J. C. Shepherd & Company for “materials and labor furnished your men, Washington Hotel job,” the items thereon totaling $650.28. All other excess charges are for money advanced and they are not disputed. But defendants contend that they should not be required to reimburse the $650.28 shown on this separate statement.

As a witness in his own behalf, Mr. Shepherd did not dispute any of the items on this separate satement, except one for $29.00 for “setting screeds” and those for “hoist.” He testified that he knew nothing of the item for $29.00, and we note that when Mr. Copeman, plaintiffs’ foreman, was questioned about this item he was unable to explain it. There is no proof of that item, and it must be rejected.

The charges for “hoist” and current to operate the same amount to $324.00. These charges defendants say they should not be required to. pay.

The contract between plaintiffs and defendants provides that the — ■

“contractors (Ault & Burden) is to furnish the subcontractors (Shepherd & Com•pany) with one of the elevator shafts for use in installing sub-contractors’ hoist for use in hoisting his materials.”

At the time defendants began work, there was installed in the elevator shaft which they desired to use, an electric hoist belonging to plaintiffs. Mr. Copeman, plaintiffs’- foreman, testified that at that time defendants ' did not have a hoist available for installation in the shaft and as the hoist was necessary for defendants to carry on their work, it was agreed that defendants should use plaintiffs’ hoist until defendants’ could be installed' in the shaft.

Mr. Copeman testified, and his testimony is not disputed, that defendants did use plaintiffs’ hoist from about March 9th to the latter part of July. Plaintiffs made no charge for the use of the hoist but did charge to defendants the bills which they paid for the electricity used in operating it, and also charged amounts paid the engineer for overtime in operating the hoist. It' seems that defendants used the hoist after five o’clock.

Mr. Copeman says that Shepherd agreed to pay these charges, but Shepherd denies that. Copeman says that during the five months in which the hoist was being used, he rendered to Shepherd weekly statements showing these charges, and that Shepherd made no objection to them.

Plaintiffs were under no obligation to furnish defendants a hoist or to pay the expense of operating it, and there is no testimony that Mr. Copeman or any one else agreed to pay the expense of operating it without charge.

Shepherd knew that it took electricity to operate the hoist, for which some one had to pay, and he knew the engineer had to be paid for his overtime work. He accepted and used the hoist, thereby agreeing, tacitly at least, to pay the expense, and this fact, coupled with Copeman’s testimony that Shepherd agreed to pay the bills and that regular statements of the charges were rendered to him and that he made no objection thereto, we think sufficiently prove the "charges.

Our conclusion, therefore, is, that plainIffs’ claim, except the item of $29.00 for “letting screeds” is made out.

The Standard Accident and Insurance Coipany, defendants’ surety on the bond, denes liability for the charges against defeidants for “materials and labor furnishd” amounting to $650.28.

Tht original bond and contract of suretyship is dated January 29, 1924, is in favor f Ault & Burden, and is conditioned upon the faithful performance of the contract by the sub-contractors.

Thereafter, on July 1, 1924, a supplemental written contract was entered into between Ault & Burden, on the one side, and the sub-contractors and the bonding company, on the other, in which it is recited, among other things, that said Shepherd, the sub-contractor, had defaulted on his contract and that—

“the same can be declared terminated by the contractor, and the said Shepherd, furthermore, is in need of advances of cash in order to enable him to comply with his contract if such forfeiture be not declared.”

Then follows a stipulation that if Shepherd will continue to devote his time to the completion of the work, employing plasterers at the usual wage scale, Ault & Burden

“agree not to declare a forfeiture of the baid subcontract, but to permit the said Shepherd to continue to perform the same, advancing to the said subcontractor the weekly pay-roll accruing to the workmen and laborers employed by the said Shepherd in the work of lathing and plastering on the said Washington Hotel.”
“In like manner Ault & Burden agree to make necessary advances through the said Bonding Company to pay all Mils for materials and supplies used hy the said Shepherd on the said Washington Hotel under such subcontract.” (Italics ours.)

Section Y of this agreement reads as follows:

“It is agreed and understood that except as herein provided, the contract of date January 25, 1924, between the parties hereto, including the obligations of the said Bonding Company, shall remain in full force and effect, and that nothing herein shaU in any manner affect the liability of the Bonding Company under its bond, or be considered as in any manner impairing or waiving or increasing any of such liability; the said Bonding Company obligating itself hereby to hold the said' Ault & Burden harmless against liability hereunder for any sums in excess of the amounts payable to the said Shepherd under the terms of his contract, and obligating itself promptly to refund to the said Ault & Burden any and all amounts paid under this contract which, together with sums already paid, may exceed the amount due to the said Shepherd under his said contract with Ault & Burden, and provided that the liability of said bonding company shall in no case exceed the amount of its said bond.”

The bonding company contends that its obligation under the supplemental agreement was only to reimburse to Ault & Burden such sums as they had paid in cash to meet Shepherd’s pay-rolls, and in support of that contention there is cited the clause which reads:

“and obligating itself promptly to refund to the said Ault & Burden any and all amounts paid under this contract which, together with sums already paid, may exceed the amount due to the said Shepherd under his contract with Ault & Burden.”

Counsel contend that the last above quoted clause limits the liability of the bonding company to the repayment of only such sums as were paid in cash by Ault & Burden and excludes all other advances.

We must, if possible', ascertain the intent of the parties to the contract, and, to do that, the contract must be construed as a whole.

The supplemental agreement evidenced by the written document in the record, was made solely in the interest of Shepherd and his bondsman. At the time it was made, Shepherd had defaulted and Ault & Burden could have terminated the contract and called upon the bonding company, under the bond, “for loss or damage directly caused by the failure of the principal (Shepherd) to faithfully perform said contract.” Shepherd, having exhausted his financial resources, could go no further without assistance. The bonding company stood back of Shepherd, and it was to its interest that some arrangement be made whereby he could go forward under the agreement of July 1st to which the bonding company was a party. Ault & Burden agreed that they would not terminate the contract, provided Shepherd would devote his time to the work, and further agreed to assist him in carrying out his contract, by making the necessary advances “to pay all bills for material and supplies used by said Shepherd on the said Washington Hotel under such subcontract.” This is what the bonding company would have had to do under its contract of suretyship had Shepherd’s contract been abrogated by Ault & Burden.

The purpose of the supplemental agreement, in so far as the bonding company was concerned, was not to alter or lessen its obligation under the bond, but to recognize and continue that obligation in full force and effect.

The agreement of July 1st specifically provided that—

“except as herein provided, the contract of date January 25, 1924, between the parties hereto, including the. obligations of the said bonding company, shall remain in full force and effect, and that nothing herein shall in any manner affect the liability of the bonding company under its said bond or be considered as in any manner impair ing or waiving or increasing any of suci liability.”

The quoted phrase, “except as her*n provided” unquestionably related to t*at part of the contract which was not templated or provided for in the orirnal contract and bond.

It was clearly intended, we thin, by all parties, that the bonding coipa-ny should reimburse Ault & Burden rr all advances made to Shepherd to enable him to carry out his contract, whether such advances consisted of material, labor or cash for the pay-rolls.

However, if counsel’s interpretation of the contract be accepted, that is, that the bonding company was obligated to reimburse only such sums as were advanced in cash, we do not think it relieved, because the items charged on the separate account totaling $650.28, which are contested, are, with but few minor exceptions, for cash advanced and not for materials. We find on the account a charge of $7.00 for a keg of nails and $1.65 for three window lights for ball room. With these exceptions, the items were for money advanced for such as ice, building trestles and scaffolding, cleaning bath rooms, cleaning trash out of dining room, hauling trash and cleaning up, power and labor for operating hoist, bill paid to Otis Elevator Company for junction box, and express on same, etc.

These payments were necessary to complete Shepherd’s contract, and the bonding company obligated itself to refund “all amounts paid under this contract.”

Now, as to defendants’ reconventional demand.

He reconvened for $6,165.47 “for extras done at the special instance and request of said Ault & Burden.”

In the contract between plaintiffs and defendant, the subcontractor agreed, in paragraph (c) under Section 5,

“To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in the manner provided in the General Conditions for like claims by the Contractor upon the Owner, except that the time for making claims for extra work is one week.”

The contract between the owner and the general contractor provides, in Article 25:

“If the Contractor claims that any in-instructions, by drawings or otherwise, involve extra cost under this contract, he shall give the Architect written notice thereof before proceeding to execute the work and, in any event, within two weeks of receiving such instructions, and the procedure shall then be as provided in Art. 24. No such claim shall be valid unless so made.”

Defendants, plaintiffs in reconvention, did not allege nor do they claim that they made demand in writing upon the general contractor for the extras for which they claim compensation. Nor do they allege or attempt to prove that the special provisions in the contract to the effect that no claim for extras shall be allowed unless made in writing had been waived or abrogated by the parties.

When counsel for defendants, plaintiffs in rcconvention, sought to make parol proof of their demand in reconvention, they were met with the objection that such proof was not admissible under the pleadings and the contract, which objection was sustained by the lower court. We think that ruling was correct.

It is well settled that a stipulation in a building contract that no claims for extras shall be allowed unless made in writing is valid and binding upon the parties, and that when the contract so provides, and there is no written order for such extras, no recovery can be had in the absence of a waiver of that stipulation.

O’Keefe vs. St. Francis Church, 59 Conn. 551, 22 Atl. 325; Merchants Exchange vs. Butler, 3 Texas App. 375; Copeland vs. Hewett, 96 Me. 525, 53 Atl. 36; Ahern vs. Boyce, 19 Mo. App. 552; Sheye vs. Pinkerton Const. Co., 59 Atl. 462; Traitie Marble Co. vs. Brown Bros., 144 N. Y. Supp. 562; Corson vs. Ziehl, 103 Wis. 381, 79 N. W. 562; Chicago Lumber & Coal Co. vs. Garner, 132 Ia. 282, 109 N. W. 780.

In the latter case, the Court said:

‘•The manifest object of such a provision was to cut off all possibility of controversy between the parties by fixing the increased compensation of the contractor in advance and to protect the owner against doubtful claims.”

Bauman vs. Jackson, 121 Tenn. 381, 117 S. W. 504, 17 Ann. Cas. 77.

In the case of James Reilly Repair & Supply Co. vs. Smith, 177 Federal 168, where the contract contained a provision with reference to extras similar to that in the contract in the case at bar, the Court said:

“The explicit terms of the written agreement should not be disregarded, except upon proof so clear and convincing as to leave no doubt as to the intention of the parties to waive them and substitute an oral agreement therefor.”

In 6 Cyc. page 77, we find the rule stated as follows:

“Where the contract contains conditions in reference to compensation for extras, the builder must comply with them or he has no right to compensation, unless the provisions be waived by the owner. Thus, where the specifications provide that no extra work shall be allowed except on written order from the architect, such order must be obtained, a verbal order not being sufficient unless known to the owner or the charge for extra work is agreed to by .the owner.”

And in 9 Corpus Juris, 880:

“But evidence as to extra work is not admissible in the absence of proof of the compliance with the conditions precedent to recover therefor or a waiver thereof.”

Under the precise provisions of the contract between the parties in this case “no such claim (for extras) shall be valid unless so made” (in writing).

It is not alleged nor was it proved that said stipulation in the contract was waived.

The lower court sustained the general objection that under the contract no compehsation could be allowed for extras unless ordered in writing, but subsequently it permitted parol testimony, pro and con, with reference to the alleged extras, subject to the objection.

Shepherd testified that he had done extra work upon the verbal order of Mr. Cope-man, engineer for Ault & Burden. Cope-man and all others connected with the transaction, emphatically deny that even a verbal order had been given for extras, and further testified that, except in one instance, no extra work had been done by Shepherd, and in that case an allowance had been made.

Shepherd testified that he was ordered, verbálly, to build plaster beams in the main dining room, when the specifications called for beams made of wood, and he charged $2,665.50 for this extra work.

The original plans called for wood beams in the dining room. These plans were changed by agreement between the owner and the general contractor, so as to substitute plaster beams instead and the plaster beams were put in by Shepherd.

But the testimony shows beyond question that this change was made before the sub-contractor took the work and that he knew when he took it that the beams were to be of plaster. His contract especially mentions “plaster beams in ceiling of dining room.”

Shepherd, therefore, failed to prove that some of the items for which he claims extra compensation were in fact extras, and failed to prove that the provisions of the written contract with reference to extras were waived.

In the case of Monarch & Kaiser vs. Board of Commissioners, etc., 49 La. Ann. 991, 22 So. 259, the. Court held, to quote the first paragraph of the syllabus:

“Where a builder has contract for a stipulated price to build, as required by an agreed plan and specifications, and it is expressly agreed that no charge would be made for extra work unless it was executed under written authority, charges for extra work will not be allowed, it not having been shown that the proprietor agreed to the change.”

And in the body of the opinion, the Court said:

“We also eliminated all questions in regard to extra work not covered by the written agreement, for the reason that to allow for extra work not endorsed on the contract by the officer selected by defendant, would he contrary to the conditions of the contract from which we again quote: ‘No charge to he made fot extra work unless previously covered by a written instrument.’ ”

In the case of O’Leary vs. Board of Port Commissioners, etc., 150 La. 649, 91 South. 139, the Court quoted approvingly the following from 17 Am. & Eng. Anno. Cases, page 81:

“The well settled rule is that where a building contract provides that no charge shall be made for extra work unless a written order for the same shall have been given to the contractor by the architect, or by the person standing in the place of the architect or supervising engineer, no recovery can he had without such compliance with such provision.”

See, also, Selby vs. City of New Orleans, 119 La. 990, 44 South. 722.

Por the reasons assigned, the judgment appealed from is amended so as to reduce the amount thereof for plaintiff from $1,915.71 to $1,886.71. It is otherwise affirmed. Appellee to pay costs of appeal.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3296
    Second Circuit
    GRIGGS v. TREMONT & GULF RY. CO.
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 132, 135.
    The railway company defendant carries the burden of proof to show that damage to a shipment was due to accidental and uncontrollable events.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 132.
    Carrier will not be held liable for damages to a shipment of animals where such damage was caused by negligence of caretaker furnished by shipper.
    Appeal from the Eighth Judicial District Court, Parish of Winn. Hon. P. E. Jones, Judge.
    Action by C. T. Griggs against Tremont and Gulf Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Moss and Moss, of Winnfield, attorneys for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, and Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, C. T. Griggs, brought this action against the defendant, Tremont & Gulf Railway Company, to recover damages to a shipment of household effects and live stock and for delay in transporting same.

The shipment was made from Mix, Louisiana, to Chatman, Louisiana, being routed over the lines of the New Orleans, Texas & Mexico, Missouri Pacific, Louisiana & Arkansas and Tremont & Gulf railroad companies, under a through bill of lading issued by the New Orleans, Texas & Mexico Railway Company, the initial carrier, and a keeper or care-taker furnished by the plaintiff was permitted to accompany the shipment, to take care of, water and feed the stock.

The damages claimed were for breakage of some of the household effects, and injuries to the stock; bruises, etc., and depreciation from lack of care and attention and delay in transportation, and for expenses incurred while waiting for the shipment to arrive.

The trial court allowed the claim for breakage of household effects and for injuries to the animals, bruises, etc., and otherwise rejected the plaintiff’s demands.

The defendant appealed, and plaintiff has answered the appeal, praying that the judgment be amended and the amount originally demanded be allowed.

The only ground which appellant urges for the' reversal of the judgment is that a care-taker was permitted to accompany the shipment, and that the burden of proof was thus placed upon plaintiff to show that the carrier was negligent. However, the bill of lading does not contain any stipulation that the care-taker was permitted to accompany the shipment on any such condition. In fact the bill of lading does not mention the circumstance of the care-taker being permitted to accompany the shipment, nor is there any stipulation of non-liability for improper loading or packing, or proof that plaintiff loaded the shipment, and the only evidence in the record is that the care-taker was permitted to accompany the shipment for the purpose of caring for the animals, and there is not any evidence indicating that the damages allowed could have resulted from any want of attention or negligence on the part of the care-taker.

The defendant carried the burden of proof, to show that the damage was due to accidental and uncontrollable events (Art. 2754, C. C.; Lehman, Stern & Co. vs. M. L. & T. R. R. & S. S. Co., 115 La. 1, 38 So. 873), and evidence that the train was not improperly handled would not show that the damage was due to accidental or uncontrollable events, as the damage may have resulted from improper loading or packing, for which defendant would not be relieved of liability in the absence of a stipulation in the contract.

The other damage claimed by plaintiff, that is, for injury to the animals from lack of attention and delay in transportation, and expenses incurred by plaintiff from the delay, stands upon a different footing. The evidence shows that the delay complained of was due to the fact that defendant did not operate trains on Sunday (the day on which the shipment was delivered to it by the connecting carrier), which fact was shown by the schedule and published tariff of defendant, of which plaintiff must be held to have had notice, and any injury to the animals from lack of attention was due to the fault and negligence of the care-taker, of which the defendant did not have any knowledge, and the court properly refused to allow for any damages resulting from delays, of which plaintiff had knowledge would necessarily occur, or from • the neglect of the care-taker selected by plaintiff, in feeding or watering the animals, of which the defendant did not have knowledge.

The judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 10,481
    Orleans
    CHRISTIE v. PATORNO
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Judgment—Par. 106.
    Perjury on the part of a defendant in whose favor a judgment has been rendered is sufficient to constitute fraud and ill practices justifying an annulment under Art. 607 C. P.
    2. Louisiana Digest — Judgment—Par. 106, 118.
    Mere suspicion of the truth of defendant’s testimony founded upon its improbability, or upon conflicting statements susceptible of explanation will not be sufficient to support a finding of perjury by defendant testifying as a witness in his own behalf.
    Appeal from Civil District Court, Division “B.” Hon. Mark M. Boatner, Judge.
    Action by Mrs. Jennie M. Christie, wife of James W. Christie against John C. Patorno.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McGiehan & Strauch, of New Orleans, attorneys for plaintiff, appellant.
    J. A. Morales, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an action of nullity under Art. 607 of the Code of Practice, which, in part, provides that a judgment may be annulled “where it appears that it has been obtained through’ fraud or other ill practices on the part of the party in whose favor it was rendered.”

The fraud alleged is perjury on the part of defendant, testifying as a witness in his own behalf. Defendant filed an exception of no cause of action.

Whether perjury on the part of other witnesses would constitute fraud sufficient to sustain an action of nullity, may be doubtful, and may depend upon proof of defendant’s connivance or subornation, but, we are convinced that perjury on the part of a defendant, in whose favor the judgment was subsequently rendered, is such gross fraud as would fully answer the requirements of Art. 607 C. P. Courts have wide discretion in estimating what degree of fraud and ill practice would vitiate a judgment. “It would be unfortunate if it were otherwise. Fraud vitiates everything and whatever Protean shape it may assume, justice should be left free to meet and thwart it.” Lazarus vs. McGuirk, 42 La. Ann. 201, 8 South. 253. See also State ex rel Pelletier vs. Sommerville, Judge, 112 La. 1100, 36 So. 864; Miller vs. Miller, 151 La. 51; Spence vs. Spence, 158 La. 961, 105 So. 28; Gwin vs. Brown, 159 La. 575, 105 So. 624; Corpus Juris, Vol. 34, p. 284; Black on Judgments, page 968.

Plaintiff was injured in an automobile accident. She sued the present defendant, Jos. Patorno, and his sister, Mrs. Cornelia David, in solido. On the trial of the case Patorno testified that he was not the owner of the car which collided with plaintiff’s car which at the time of the accident was driven by a negro chauffeur, and that the chauffeur was not in his employ. Mrs. David did not offer any defense. A judgment by default was entered against her and shortly thereafter she went into bankruptcy.

Judgment was rendered, in Patorno’s favor absolving him from responsibility. That judgment is attacked here.

The question for our determination is whether Patorno committed perjury when he disclaimed ownership of the car.

The automobile accident occurred on Sunday July 6, 1924. On the trial, and in support of Patorno’s testimony an act of sale dated July 3, 1924, and recorded in the conveyance office July 8, 1924, jus.t two days after the accident and in which Patorno sold to his sister, Mrs. David, for $200.00 cash the offending automobile was offered in evidence.

Mrs. David, testifying in these proceedings, corroborated her brother and claimed that she paid the cash mentioned in the act of sale, being moved to purchase the automobile, a Ford, because of the distance between her house and the Mercy Hospital, where she was employed as a traine.d nurse.

Shortly after the accident Patorno sued the Menefee Motor Co., Inc., No. 154,284, C. D. C. In this suit he alleged, among other things, that he bought a new Ford car and in part payment traded in his old Ford' (the same Ford which ran into plaintiff’s ' car) for $225.00. It was the discovery of this evidence by plaintiff’s counsel which caused this suit to be instituted. Patorno also testified in • the proceedings referred to that he had brought his car around to the Menefee establishment to have it appraised, and in this suit that he had not been in the car since the accident. He also testified that Albert Bernard, the negro chauffeur for whose negligence he disclaimed responsibility, lived on his premises, 839 Royal Street, at the time of the -accident and. since (his sister, Mrs. David, lived elsewhere). Mrs. David, in explanation of her brother’s action in trading the car she claimed was hers at the time of the accident stated that she became disgusted on account of the accident and a few days thereafter sold it back to her brother for $225.00, being the amount allowed on the trade.

There is sufficient showing to create a suspicion of fraud. The automobile was sold on July 3rd and only recorded on July 8th, two days after the accident. Defendant explains that July 4th being a holiday accounts for the failure to record on that day, and that Saturday, July 5th, was a half holiday and Sunday, the 6th, was a dies non but Monday, 7th, was not a holiday and the act only recorded on July 8th. But to suppose the act to have been antedated would involve a reflection upon the notary, who is disinterested, and we find no evidence to justify such reflection.

The conflicting evidence of defendant concerning the ownership of the car is more serious, but here again we are confronted with the notarial act (purporting to convey the Ford to Mrs. David just before the accident. If we suppose the notary to have been deceived and that the cash which one of the parties gave to the other was immediately thereafter returned, we still have the testimony of Mrs. David. Of course, it may be said that Mrs. David had sufficient motive to, and did, commit perjury also, but her testimony though it makes some demand upon our credulity, and is, to say the least, an extraordinary statement, for, in buying and selling the Ford a few days before and a few days after the accident, she subjects herself to the suspicion that- the dates of the sales are too convenient. However, it is quite possible that she did buy the Ford when she says she did and that her brother in trading for a new Ford treated his sister’s car as his own, and, thereafter, paid her the allowance made him in the transaction.

We do not feel that we should be justified in holding that Patorno and his sister concocted the story of the ownership of the automobile and that both, in relating it on the witness stand perjured themselves, as would be necessary to accept plaintiff’s view. Something much stronger than suspicion must exist to support a charge of fraud founded uipon perjury as a means of annulling a judgment.

Our conclusion is that the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 3171
    Second Circuit
    COLBERT AND SNIDER v. ALPHONSE BRENNER CO., INC.
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)
    (June 2, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 375,517, 526.
    A motion to dismiss an appeal for want of citation may be filed at any time, even after three days from date the transcript is filed.
    2. Louisiana Digest — Appeal—Par. 359, 522; Citation and Appearance — Par. 41.
    Although a general apperance on appeal waives want of citation, nevertheless a motion to dismiss an appeal on several grounds does not waive the right to have it dismissed for want of citation.
    3.Louisiana Digest — Appeal—Par. 356, 357, 375.
    Where a motion but no order of appeal was made in January, 1927, and another motion and order was made at another term of court in September, 1927, appeal will be dismissed for want of citation.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Colbert and Snider against Alphonse Brenner Company, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Appeal dismissed for want of citation.
    John B. Files, of Shreveport, attorney for plaintiffs, appellees.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The appellant appeals from a judgment rendered against it in favor of plaintiffs on a claim for services alleged to have been rendered under a contract of employment, and plaintiff has moved to dismiss the appeal on the grounds that there was not any legal bond filed and no citation of appeal.

On the cause being called, defendant excepted to the motion on the grounds that it did not appear to have been filed, and it came too late, and further urged that the motion to dismiss for lack of bond waived the want of citation of appeal, and, on the merits of the motion, urged other reasons why the appeal should not be dismissed which will be hereinafter stated

First, relative to the motion to dismiss not being filed, it appears on the face of the motion that it was presented to one of the judges of this court and ordered to be filed and set for hearing, and it further appears from a certificate of counsel for appellee that a copy of the motion had been sent to counsel for appellant.

The objections, we think, relate to the matter of hearing the motion, and as counsel for appellant do not claim that a copy of the motion was not served, as shown by the certificate of counsel, and not having asked that the date for the hearing be postponed, we think the objections should be overruled.

Second, that the motion came too late, not having been filed within three days from the date the transcript was filed, is apparently based upon the ground that a motion to dismiss for want of citation is merely an informality and could not be filed after three days from the date the transcript was filed.

The want of citation is not, however, merely an informality, and the motion was timely filed. (See Comire vs. Schiro Amusement Co., 6 La. App. 440, and authorities cited.)

Third, that the want of citation was waived by the motion to dismiss being also made on the ground that there was not any bond as well as on the ground that there was not any citation.

The gen.eral rule is that a general appearance on appeal, as an answer, waives want of citation, and it has been held that where a motion has been made to dismiss an appeal on other grounds, such as to right of appeal or insufficiency of transcript (Succession of Baumgarden, 35 Ann. 130; Lee vs. Goodrich, 21 La. Ann. 278) has the same but, when the motion does not set forth any matters that trench on the merits, as in the present case, we do not think the motion to dismiss for want of citation, although other grounds are set up, waives want of citation.

The record shows that the judgment was rendered and signed on January 19, 1927, and on - January 22, 1927, that a written motion for suspensive and devolutive appeal was filed in open court at motion hour, praying that the appeal be granted and devolutive bond and return day fixed, and that a bond for fifteen hundred dollars, which was sufficient for a suspensive appeal, was filed on the same date, and that following, on September 21, 1927, a motion was made for a devolutive appeal, and an order entered granting the appeal, fixing the amount of the bond and the return day, and the bond which was originally filed was refiled on September 21, 1927.

The motion to dismiss for want of citation was based upon the order of September 21, 1927, in which it was contended that the motion was made and order of appeal entered at a subsequent term to that on which the judgment was rendered, and if the order and appeal of that date is considered, the motion to dismiss for the want of citation is fully supported by the decision in Comire vs. Schiro Amusement Co., supra, and the authorities cited therein.

Appellant apparently argues, however, that the law favoring appeals, the motion for appeal of date January 22, 1927, having been filed at motion hour during the term the judgment was rendered, and if the order of appeal was not granted and entered on the minutes it was not appellant’s fault, and, further, that the order of date September 21, 1927, should relate back to the motion of date January 22, 1927.

If the appeal could be considered as authorized on January 22, 1927, when the motion was made, it would not, of course, have been necessary for any citation of appeal to have been made, but appellant has not suggested that the cause be remanded for the purpose of showing that an order for the appeal was made, and to have the minutes corrected, and as we see the matter, in order to hold that an appeal was granted at that time, we would have to hold that it was the absolute duty of the court to have granted the appeal, fix the amount of the devolutive bond and return day and relieve appellant of any duty to have the order properly made and entered.

The right of appeal while favored is not absolute,' and the amount of the devolutive appeal bond is somewhat within the discretion of the court, and it is held that where the record does not show an order of appeal it will be dismissed ex proprio motu (Sammons vs. N. O. Ry. etc., Co. 143 La. 731, 79 So. 320, and authorities cited; also Sullivan vs. Tremont & Gulf Ry. Co., 4 La. App. 358; Grayson, Newton & Co. vs. Blount & Welch, 4 La. App. 554), and we -are of the opinion such ruling precludes us from holding the order of appeal was granted, and while there is authority to the effect that the order for appeal may be signed subsequently to the date the appeal should have been perfected where the court had neglected to sign the order when timely presented, we do not think it should be held that the order of date September 21, 1927, which the minutes show was entered on a motion made at that time and under which a bond was filed should be held to have related back to the motion made on January 22, 1927.

We conclude that if the appeal is considered under the motion and order of date September 21, 1927, there was not any citation of appeal, and as there was not any order of appeal on the motion of January 22, 1927, the appeal cannot be considered as having been granted under that motion, and the motion to dismiss must be sustained, and the appeal is therefore dismissed.


text:
    No. 3227
    Second Circuit
    VALLEY SECURITIES COMPANY, INC., v. STAFFORD PLAUCHE-LOCKE SECURITIES, INC., Intervenor
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Chattel Mortgages— Par. 1, 3; Evidence — Par. 224.
    Under the Chattel Mortgage Act 198 of 1918 ■ the description “1 Roadster No. 14525832” is not sufficient to mortgage one Ford Roadster motor No. 14525832 as affecting third parties, and parol evidence is not admissible to supply the deficiency.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Valley Securities Company, Inc., against Mrs. D. M. Stafford. Plauche-Loeke Securities, Inc., intervenor.
    There was judgment for plaintiff and defendant appealed.

      Judgment affirmed.
    Hawthorn and Stafford; J. L. Pitts, Jr., of Alexandria, attorney for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for intervenor, appellant.
   WEBB, J.

The Valley Securities Company, Inc., holding a note drawn by Mrs. D. M. Stafford, on March 12, 1927, payable to bearer, secured by chattel mortgage on an automobile, proceeded to foreclose, via executiva, and the sheriff seized the automobile described in the act of mortgage and was advertising the same for sale when Plauche-Locke Securities, Inc., holding a note payable to its own order, drawn by Stromer Motors on January 29, 1927, filed an opposition, claiming that the note held by it was secured by mortgage on the property seized of superior rank to that of plaintiff, to which plaintiff filed an exception of no cause of action, which was sustained and judgment rendered dismissing the opposition,' from which opponent appeals.

The automobile seized by the sheriff was a “Ford Roadster, motor No. 14,525,-832,” which was the specific description of the property mortgaged by Mrs. Stafford to secure the note held by plaintiff, while the specific description of the property mortgaged, by Stromer Motors to secure the note held by opponent was “1 Roadster No. 14525832;” and while it is admitted that the particular description was not sufficient, it is contended that the act of mortgage suggested inquiries which would have shown that the mortgagor was a dealer in Ford automobiles, which being read into the particular description, would show that the property mortgaged was a Ford automobile bearing the motor number stated.

Opponent cites the general rule prevailing in other jurisdictions that it is not necessary that the movable mortgaged should be described in such manner as that it may be absolutely identified from the description by third persons, and that as to such persons the description will be sufficient when the property may be identified by the particular description together with information obtained from sources of inquiry suggested by the act of mortgage (Chattel Mortgage, R. C. L. vo. 5, p. 9, 429, No. 63), and the decision in Commercial Bank of Arcadia vs. Simmons, 2 La. App. 658, in which the rule was referred to with approval.

The act of mortgage in the present instance declares that the property is situated in the parish of Rapides, but it do.es not mention the business of the mortgagor, and there is not any declaration which relates to the description of the property, other than the particular description, and it may in this respect be distinguished from the act of mortgage considered in the case cited; but conceding that it suggested sources of inquiry which, if followed, would have given information which, together with the particular description, would have identified the property mortgaged, the identification, insofar as the description is concerned, would have resulted from reading into the description the word “Ford” before the word “Roadster,” assuming that the court may take judicial notice that the latter word shows that the .property mortgaged was an automobile, and the word “motor” before the symbol which would in fact be to vary and charge the written instrument and write into it words showing the intention of the parties, and to thus hold third persons to have had constructive notice of the unexpressed intention of the parties.

The statute requires that the mortgage must be in writing and must contain a full description of the property, so that it may be identified, and that in order for the recordation to serve as constructive notice the act shall be passed before a notary public, which shows that the act of mortgage must be in all respects complete and contain such a description of the property as to enable it to be identified without resort to parol testimony, and while it may be the act of mortgage may contain declarations of facts which, read together with the particular description, would identify the property where the particular description was insufficient, we arc of the opinion that such facts would have to be stated in the act, or that the declarations would have to be such as clearly indicate the existence of such facts, otherwise ¡parol wo.uld not be admissible to show such facts in order to complete the instrument and render its recordation notice to third persons.

There is, of course, a great distinction between the effect of a mortgage on movable and immovable property as against third persons, as indicated by the chattel mortgage law (Act No. 198 of 1918), and a description of property under the latter may be sufficient as between the parties and insufficient as to third persons without knowledge, who must be held as having constructive notice, and the act of mortgage cannot be varied or changed by parol so that its recordation may convey such notice.

In the present case, conceding that the mortgagor was a dealer in Ford automobiles and that the mortgage had so declared, and that there should be written into the description the word “Ford,” still there would also have to be written into the instrument the word “motor” in order to determine with certainty which of the many automobiles handled by the mortgagor was intended, and we are of the opinion ■ that there is thus an apparent or patent ambiguity on the face of the instrument, or deficiency in the description of the property, and that parol woul'd not be admissible to supply the deficiency as against third persons.

The judgment appealed from is therefore affirmed. *


text:
    No. 3215
    Second Circuit
    SCOTT v. PITTMAN, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — ;BiIls and Notes — Par. 218.
    The consideration of a non-negotiable instrument in the form of a check to be paid only in the event of a future happening must be alleged and proven by plaintiff, the burden of proving want of consideration not being upon defendant in this case.
    2. Louisiana Digest — Bills and Notes— Par. 208, 210, 225.
    The plea that there was not any consideration for a supposed check containing a stipulation that it was to be paid only in case something happens in the future is sufficient to advise plaintiff of the evidence which would be introduced, which evidence is admissible.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. Percy Sandel, Judge.

      Action by John Scott against Mrs. D. C. Pittman and D. C. Pittman.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin and Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Newton and Newton, of Monroe, attorneys for defendants, appellees.
   WEBB, J.

The plaintiff, John Scott, instituted this action against D. C. Pittman and his wife, Mrs. D. C. Pittman, to recover judgment against them in solido for two hundred forty dollars with legal interest from judicial demand.

He alleged that defendants were living together under the community of acquets and gains, and that on April 11, 1927, Mrs. Pittman, for a valuable consideration, executed, signed and delivered to him a check drawn on the Central Savings. Bank & Trust Company of Monroe, Louisiana, payable to his order, for the’ above named sum,

“under the condition that the check would be payable only in event that Mrs. Pittman won a Chrysler car given in Ouachita Citizen's Campaign”;

that Mrs. Pittman did win the Chrysler car offered as a prize by the Ouachita Citizen, and promptly thereafter the check was presented for payment and payment refused, plaintiff being informed that Mrs. Pittman had stopped payment on the check, and that he had repeatedly made amicable demand for payment.

The defendants excepted that the petition failed to state a right or cause of action, which was sustained as to D. C. Pittman, the husband, and judgment rendered dismissing the suit as to him, and overruled as to Mrs. D. C. Pittman, who answered admitting the existence of a community of acquets and gains between herself and her husband, and that she had signed the check and won the car, but denied that the. check was given for a valuable consideration or that there was any consideration whatever for it, and alleged that plaintiff had obtained the check by and through misrepresentations made to defendant.

Trial was had and judgment rendered rejecting plaintiff’s demands, from which judgment plaintiff appealed.

On trial evidence was offered by defendant to show that plaintiff had not given any consideration for the check, which also tended to show bad faith, to which plaintiff objected on the ground that the evidence was not admissible under the answer, and the only error urged is that the evidence was erroneously admitted, with reference to which counsel say:

“In view of the admissions in the answer of defendant that she executed and delivered the check for $240.00 to Mr. Scott and stopped payment of the check * * * and the testimony of Mrs. Pittman herself that she entered into an agreement with Mr. Scott * * * and that she did actually win the car, the only issue before the court is the question of admissibility of evidence under a plea of general denial to prove fraud, failure of consideration and misrepresentation.”

The pleadings were, in substance, as previously stated, and the plaintiff alleging that the check was given for a valuable consideration, to which defendant answered:

“All defendants deny that said check was executed and delivered to plaintiff by said Mrs. Pittman for a valuable consideration. All said defendants deny that there was any consideration whatsoever for said check. All defendants aver and allege that plaintiff obtained said check from said Mbs. Pittman by and through misrepresentation on the part of plaintiff to said Mrs. Pittman.”

■ And the objection to the introduction of evidence to show want of consideration was on the ground that the allegations of want of consideration were not specific enough to admit of proof, and the authorities cited by plaintiff appear to have been collated in support of the objection rather than to support the contention that the answer and the evidence showing that Mrs. Pittman had signed and delivered the check that a cause or valid consideration was established and that she could not, under the plea of want of consideration, prove failure or illegality of consideration.

The evidence introduced by plaintiff did not tend to show failure or illegality of consideration, but want of consideration, and under the objection interposed the question presented is whether or not the evidence was admissible, and reading between the lines, the contention of plaintiff appears to be that the burden of pleading want of consideration was on defendant, and that the denial of consideration made in answer to plaintiff’s allegation that there was a valid consideration, even considering it as equivalent to an affirmative allegation, was not specific enough to admit any evidence thereunder.

The position thus involves two questions: first, whether or not the burden of pleading was on defendant to show want of consideration, and, second, whether or not the plea was sufficiently explicit to advise plaintiff of the evidence to be introduced to show want of consideration.

The questions relate to matters of rather a technical nature, and while the authorities cited by plaintiff show that the burden of pleading is on the defendant when sued upon commercial paper, such as promissory notes, bills of exchange, etc., there is not any authority cited which holds that in an action on'^, non-negotiable instrument, such as that sued upon here, which does not express on its face any consideration, and where even the promise to pay can be inferred only from the nature of a “check” within the meaning of the Law Merchant, which" the allegations of the petition show that the instrument sued on was not, we are of the opinion that the most that could be said of plaintiff’s suit is that it was upon a mere promise to pay and that the plaintiff, even had he set forth the instrument in full or annexed and made it a part of his petition (which he did not do) was bound to allege and prove there was a legal consideration for the promise, and the fact that the defendant admitted signing the instrument or that it was offered in evidence, did not relieve plaintiff of proving a consideration.

While it is true that a promise is presumed to have had a just cause or valid consideration, and that this presumption may, as relates to matters of pleading, relieve one who sues upon an instrument, importing or expressing a consideration, of the 'burden of pleading and proof as to consideration, we do not think such is the case where the suit is upon an instrument where the promise must be inferred and which does not express any consideration, as in1 the present instance, and that without regard to the evidence offered by defendant, the plaintiff failed to discharge the burden of proof, and judgment was properly rendered rejecting his demands.

However, if , this be not true, and the burden of pleading and proof was on the defendant to show want of consideration, we are of the opinion that the plea of want of consideration is distinguishable from such special pleas as fraud, failure or illegality of consideration, tending to avoid an otherwise valid contract, in that want of consideration cannot be established otherwise than by evidence showing the circumstances under which the promise was made, and where such circumstances are set out in the petition, as in the present instance, we think that the plea that there was not any consideration whatsoever was sufficient to advise plaintiff of the evidence which would be introduced, and that the - evidence was admissible, even though the relation of the circumstances may have had a tendency to also show a breach of good faith.

The judgment appealed from is therefore affirmed".


author: ODOM, J.

text:
    No. 3212
    Second Circuit
    SECURITIES SALES CO. v. NALLEY
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 64, 87, 138, 141.
    "Where the evidence clearly shows that when the purchaser of a motor truck returned it to the owner of the chattel mortgage notes he did not ask the return of the notes and the under- •" standing was that the truck was to be . sold and the amount received credited on the balance due, there must be judgment for plaintiff on the note less the amount received for truck.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Securities Sales Company of Louisiana, Inc., against W. E. Nalley.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    W. C. Roberts; B. T. Dawkins, of Alexandria, attorneys for plaintiff, appellant.
    Lamar Polk, of Alexandria, attorney for defendant, appellee. ‘
   ODOM, J.

Plaintiff brought this suit to recover $158.80, alleged to be the balance due on a promissory note representing part of the purchase price of a truck and trailer sold by plaintiff to defendant.

There was judgment in the District Court rejecting plaintiff’s demands, and it has appealed.

The amount of the note is $584.50, but defendant made payments thereon until there was a balance due of $233.80. Being unable or unwilling to make further payments he voluntarily surrendered the truck and trailer to plaintiff.

Defendant’s contention is that he surrendered the property with the understanding that it was accepted by plaintiff in full satisfaction of the balance due on his note, whereas plaintiff contends that the property was surrendered to it to be sold to the best advantage and that the proceeds of the sale should be credited on the note.

Plaintiff sold the tractor or truck for $75.00, credited that amount on the note, which left a balance of $158.80, the amount claimed in this suit.

At the time defendant returned and surrendered the property to plaintiff he signed an instrument which reads as follows:

“12/30/26
“I hereby release to Securities Sales Company of Louisiana, Incorporated, the car owned by me on which they hold chattel mortgage, the same to be sold by them and the proceeds credited to my account.
“Witnesses: (Signed) W. E. Nalley.'
(Signed) “Henry Lanier,
(Signed) “F. J. Miller.”

There are no ambiguities in the above instrument. It contains nothing to indicate that plaintiff was to receive the property in full satisfaction of the debt, but, on the contrary, stipulates that plaintiff is to sell the car and credit the proceeds on the note.

Defendant testified that he read the instrument before signing it. But in his answer he alleged that plaintiff’s representative fraudulently represented to him that the instrument presented to him for his signature was a complete release from the debt.

However, as a witness in his own behalf, defendant testified that plaintiff’s representative made no fraudulent misrepresentations to him, but says that he was under the “impression” that he was to be released.

He testified that when he delivered the car to plaintiff he told Miller, plaintiff’s representative, that he brought—

“the truck to turn over to the Sales Security Company for the balance due on it,” and that Miller said—
“You will have to sign a release so we will have to sell the car or truck.”

Defendant admitted that Miller did not agree that he should be released from the debt, and one of defendant’s witnesses, who was present, stated that Miller made no agreement as to release.

But defendant said—

“That certainly was the impression when I signed the release that I was settling with the Security Sales Company the balance due.”

Defendant was asked— .

“Did Mr. Miller tell you that he would sell it for sufficient to pay the note?”

And he answered—

“Mr. Miller said he would say this for the truck: it came in as good condition as any one they had ever taken back.”

Asked how he got the impression that he was to be released, and if Miller said anything to him to that effect, defendant replied—

“No sir; wasn’t anything said between us. He didn’t tell me he would sell this truck as a part of this balance. He wanted me to sign a release so they could sell the truck and get their money.”

At page 15 of the testimony, defendant was asked—

“Did Mr. Miller tell you if you signed the release you would be released from all liability?”

And he replied—

“He never mentioned that. The conversation was that I told him I would sign the release.”

Mr. Lanier, who was present and witnessed the document, was asked if Miller told the defendant he would be released from further payments if he signed the document, and he said—

“No, sir; never heard him say that.”

Miller, for plaintiff,' testified that defendant surrendered the truck to be sold by plaintiff to the best advantage and the proceeds credited on the note, and that it was not understood or contemplated that plaintiff should be released.

Plaintiff did not surrender the note to defendant when this transaction' took place. Defendant does not explain why this was not done. The fact that the note was not surrendered is a strong circumstance corroborating plaintiff’s case.

Considering plaintiff’s own testimony and that of his witness, Lanier, the testimony of Miller, for plaintiff, the instrument which defendant signed, and the fact that the note sued on was not cancelled and delivered to defendant, it is manifest that defendant failed in his defense that he paid the debt by surrendering the property.

Defendant, in the alternative, urged that the property was well worth the amount of the debt and that plaintiff could, with diligence, have obtained more for it.

That defense also fails. Plaintiff’s witnesses testified that they made numerous efforts, over a period of several months, to sell the property, and that $75.00 was the best offer it could get. It was to its interest to get all it could for the property, and it seems reasonable that if it could have gotten a better offer it would have taken it.

We think the judgment in this case is manifestly erroneous.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, "and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff and against the defendant for the sum of one hundred fifty-eight and 80-100 ($158.80) dollars, together with eight per cent, per annum interest thereon from March ’ 26, 1927, until paid, together with 15 per cent thereon as attorney’s fees (as provided in the note) and all costs.


text:
    No. 3234
    Second Circuit
    WALLACE v. NATURAL GAS AND FUEL CORPORATION
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 159.
    Where injured employee’s lower jaw had been fractured and his face disfigured besides partial disability caused by the accident, he is entitled to compensation under Paragraph 16, subdivision (d), subsection 1 of section 8 of Act No. 85, 1926, amending Act 20 of 1914, of sixty-five per cent of his wages for not more than one hundred weeks.
    2. Louisiana Digest — Master and Servant —Par. 160 a, 160 b.
    'Under Paragraph 18, subdivision (d), subsection 1 of section 8 of Act No. 85 of 1926 amending Act 20 of 1914, the Workmen’s Compensation Act, where compensation has been paid, it should be deducted from the judgment of the court allowing compensation.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. F. E. Jones, Judge.

      Action by Lonnie B. Wallace against Natural Gas and Fuel Corporation.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, L. B. Wallace, while employed by the defendant, Natural Gas & Fuel Corporation, sustained injuries on July 27, 1926, in an accident arising in the course of and out of his employment which immediately resulted in disabling him until February 18, 1927, for which he was paid the maximum compensation allowed under the Employers’ Liability Law (Act No. 20 of 1914) or twenty dollars per week, and on the 7th day of September, 1927, he filed the present action to recover judgment for additional compensation, and on trial judgment was rendered in his favor for compensation at the rate of twenty dollars per week during the period of his disability, for not more than one hundred twenty-eight weeks, beginning on July 27, 1926, less the sum of five hundred sixty dollars to be deducted from the first payments due, and defendant appealed.

Defendant urges that the judgment was erroneous, apparently contending that the plaintiff was entitled to receive compensation only for disability and not for specific injuries, and that the evidence failed to establish any disability beyond the period for which compensation had been paid, and in any event that the period of compensation for disfigurement could not be fixed beyond one hundred weeks, from which there should be deducted the amount of compensation previously paid, ancl further, that the amount of the weekly payments was excessive.

The evidence established that plaintiff’s lower jaw had been fractured in several places, resulting in the loss of eight of his lower teeth and one of the upper, and after treatment his jaws were out of alignment, and scars or depressions were apparent on his face, all of which noticeably disfigured his face, and that his ability to speak was impaired, and that it was difficult for him to eat solid food, and that such conditions would be permanent.

While the injuries may be said in a general way to tend to disable plaintiff to work by finally resulting in an impairment of his health, the evidence did not establish that he had been disabled after February 18, 1927, or indicate that there could have been more than partial disability, and we are of the opinion that he was entitled to compensation under the provisions of paragraph 16, subdivision (d), subsection 1 of section 8 of the statute as amended by Act No. 85 of 1926, which reads:

“In cases not falling within any of the provisions already made where the employee is seriously permanently disfigured about the face or head or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as is in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not exceeding sixty-five per cent, of wages during one hundred weeks.”

The judgment appealed from appears', from the written statement of the findings of the court, to have been based on the paragraph quoted but to have been so written as not to allow credit for the payments admitted to have been made, and we think it was erroneous in that respect.

Paragraph 18, subdivision (d), subsection 1 of section 8 declares:

“Where compensation has been paid under subdivisions a, b or c of this schedule, the amount of such payment shall be deducted from any compensation allowed under subdivision (d) or subsection 2 of the section (8).”

And we are of the opinion it must be given effect, and in the present instance the evidence does not indicate that it will result in any injury to plaintiff, as if compensation was allowed on the basis of partial disability plaintiff would have to account for the amount received, and the total compensation, even though the period of payments would be longer, would be less, and we do not think that the defendant can complain even though it would be responsible on the theory of partial disability for less than for specific disability or disfigurement and impairment when the evidence clearly shows that plaintiff is entitled to compensation and the disfigurement and impairment is shown of such seriousness as to warrant the weekly payment being fixed at the maximum.

Considering the disfigurement and impairment of the physical functions resulting from the injury, and the amount which plaintiff is shown to have earned prior to the accident, we are of the opinion that the amount of the weekly payments was properly fixed at the maximum provided by the statute, but that the decree should have fixed the period of payment' during one hundred weeks, subject to credit of the sum of five hundred sixty dollars, or the period during which the payments were made, or twenty-eight weeks, and the judgment is amended as to fix the period of payment for the period during one hundred weeks, less twenty-eight weeks, the payments to begin on February 18, 1927, with legal interest from that date, and that the judgment as amended be affirmed, the cost of appeal to be paid by plaintiff.


text:
    No. 3291
    Second Circuit
    DANIEL ET ALS. v. TRANSCONTINENTAL INS. CO., INC.
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 175, 181.
    .In order to recover insurance for the theft of an automobile proof that the car was unlawfully taken and carried away by a person or persons unknown and that the owner never had notice of where it might be found makes out a prima facie case under the law. The fact that the car was afterwards found in the same city will not overthrow , the presumption of a felonious taking.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Sam D. Daniel et als. against Transcontinental Insurance Company, Inc.
    There was judgment for plaintiffs and defendant appealed.

      Judgment affirmed.
    K. Hundley, of Alexandria, attorney for plaintiffs, appellees.
    John L. Pitts, Jr.; Hawthorn and Stafford, of Alexandria, attorneys' for defendant, appellant.
   ODOM, J.

The plaintiff, Sam D. Daniel, owned a Ford automobile on which he held an insurance policy issued by the defendant company, insuring him against loss of the car by theft, robbery or pilferage, except by a person or persons in the assured’s household or in his service or employment.

On the afternoon of September 12, 1926, Daniel parked his car on Fisk street in the City of Alexandria and went to a picture show. On returning later in the day to the place where he left the car, it was gone. He, with another party, made a search for the car but could not find it. He notified the members of the police force at once, who also made a search for the car, but to no avail. Some six weeks later the car, or what was left of it, was located on a lot in the City of Alexandria used by the Etheridge-Atkins Motor Company to store old, re-claimed or trade-in cars. When found, one wheel, the rim of another, the battery, the coil, the hood, cushions, tires and windshield had been removed, there being nothing left but the “shell” which, according to the testimony, was not worth more than $25.00.

The testimony shows that some time after the car had been taken by an unknown person from where it was loft by Daniel, the owner, on Fisk street, the employees of the Etheridge-Atkins Motor Company discovered it parked on Third street, about a block from where Daniel had left it.

The testimony does not show the exact date on which it was found, but it is clear that it must have been anywhere from two to nine days after it was taken from Fisk street where Daniel left it.

The employees of said auto company,' finding the car abandoned near its place of business, thought it was one of their re-claimed or trade-in cars or a “revert,” and had it removed from Third street to their lot, where it remained, as before stated, for some six weeks before being discovered by the police department s*s Daniel’s car.

The car was stripped of its parts while in possession of said auto company, but by whom is not shown. The employees of the auto company state that .they took nothing off the car, which leaves the inference at least that the parts were stolen.

It is not disputed that the car was removed from the street by the EtheridgeAtkins Motor Company in feood faith.

It is shown that when the car was taken possession of by the motor company on Third street, it was in fair condition— none of the parts missing; but the indications are that it would not run by its own power.

The plaintiff, Daniel, and the Securities Sales Company of Louisiana, Inc., an automobile finance company, which owned the vendor’s notes on the car, prosecute this suit to recover under the policy, on the ground that the car was stolen from Daniel, the owner.

The defense is that there was no theft of the car.

There was judgment below for plaintiff and defendant appealed.

OPINION

The plaintiffs established beyond question that the car was taken and carried away without the consent of the owner or that of any one who had authority to speak for him, without his knowledge and by a person whose identity was then and is yet unknown.

By establishing these facts they made out a prima facie case.

But counsel for defendant say that plaintiffs failed to prove that the person who took the car did so with the felonious intent to deprive the owner permanently of his property and therefore no ease of larceny is made out by plaintiffs.

Larceny is the felonious taking and carrying away of the personal property of another with the felonious intent to deprive the owner permanently thereof, and under the settled jurisprudence there can be no recovery under a policy insuring the owner against the loss of an automobile by theft, robbery or pilferage, where there was no intent to steal the car by the one who took it.

Encyclopedia of Automobile Law, by Blashfield, vol. 3, page 2575, sec. 80; See cases cited in notes in 14 A. L. R. 215, 46 A. L. R. 536, et seq.; Phoenix Insurance Co. vs. Jennie Epstein, 78 S. E. (Ga.) 265; Valley Merc. Co. vs. St. Paul F. & M. Ins. Co., 143 Pac. 559, L. R. A. 1915B, 327.

Whether the person who took plaintiff’s car and carried it away did so with the felonious intent of depriving the owner permanently thereof can be inferred only from all the circumstances connected with the case.

Intent in cases of larceny can seldom be proved by direct testimony. The intent must be inferred from the act, and the presumption is that one intends to do that which he does. If plaintiff’s car had never been found, a case of larceny would have been made out beyond a reasonable doubt, because it is shown that it was taken and carried away by an unknown person, without the owner’s knowledge or consent. Under such circumstances, the inference that it was taken with felonious intent, Would follow necessarily.

But the car was found in the City of Alexandria, the city from which it was taken, and counsel for defendant contend that the circumstance that the car was found in the city is sufficient to destroy the inference that it was taken with an original felonious intent. In other words, they say we must assume that the taker intended to use it for a joy ride.

We are unable to agree with that view. It must be borne in mind that "the car was not returned to the place in the city from which it was taken. It was left by the owner on Fisk Street and taken from there. It was found abandoned on Third street, a block from the place from which it was taken, and as to who took the car and as to why it was abandoned was not shown and cannot be proved. The facts are that it was left on the street and abandoned to mere chance by the taker.

There was an unlawful taking -of the car and a complete asportation thereof.

We are asked by counsel to assume that the taker intended to use it only for a joy ride. If we are to indulge in assumptions we might go further and assume that the car was abandoned because the taker was scared away, or because it would not run. There is evidence in the record which tends to show that when the car was taken possession of by the Etheridge-Atkins Auto Company it would not run by its own- power; it was shoved in by the colored employees of • the Auto Company.

There is also testimony showing that the car was “dragged” a few feet from where it was left and that the steering wheel was locked by Daniel when he left it. It is therefore very probable that the thief or thieves found trouble in operating the car and abandoned it for that reason. There is no proof that the car was ever carried beyond the spot where it was found on Third street, although there is testimony that immediately following the discovery by Daniel that his car was missing he made a search for it and failed to find it, and that the members of the police department also searched for it without results; from all of which we are asked to draw the inference that the car was taken and used for a joy ride and brought back.

If the car had been taken from Fisk street, kept for a while and brought back and left at the place from which it was taken, we might reasonably assume that the taker did not intend to deprive the owner permanently of his property. But such are not the facts.

Counsel for defendant would have us hold that in order for plaintiffs to recover under this policy the burden was upon them to make out such a case as would have warranted a conviction of the taker if he had been prosecuted criminally for the larceny of the car.

Such a holding in a case like this would be going too far. This is a civil action, not a criminal prosecution. In criminal prosecutions, the onus is on the State to make out its case beyond a reasonable doubt. The rule is differént in civil cases. In the latter the plaintiff is required to make out his case by a fair preponderance of the testimony only.

The rule, as stated in Blashfield’s Encyclopedia of Automobile Law, vol. 3, page 2611, sec. 119, is as follows:

“Where the insured, in an action on a policy insuring against theft, has the burden of proving every element of the larceny, he is required to prove his case only by a fair preponderance of the evidence, and not beyond a reasonable doubt; the rule being the same as in civil cases generally. Such requirement is .satisfied by proof that the insured car was taken from the possession of the insured without his knowledge and consent and that it cannot be located. He is not required to show what became of the car. A case of theft and the necessary intent to steal need not be proven directly, but may be evidenced by circumstances from which the jury can infer such intent.”

In the case of Weir vs. Central Nat. Fire Ins. Co., 194 Iowa 446, 189 N. W. 794, the court said:

“The plaintiff was charged with no burden to prove that the car was stolen by Melesha or by any other particular individual. In order for him to recover, it would have been enough for him to show by a preponderance of evidence that the car was deposited or left in the shop by him or by his agent, and that the next morning it was gone or had disappeared without the knowledge or authority or agency of any one authorized to permit it. Such circumstances would have given rise to a presumption of theft by some one, and in the absence of evidence otherwise explanatory of the disappearance of the car, it would entitle the owner to recover on his insurance policy against theft.”

The court further said that of course the defendant insurance company had a right to show that the loss of the car was due to some other cause than theft. “But the truth of such defense is not to be taken for. granted.”

The plaintiffs in the case at bar proved that the car was unlawfully taken and carried away by a person or persons unknown, and that Daniel never had a notice of where it might be found. By establishing this proof, plaintiffs made out a prima facie case under the law. Prom the fact that the car was later found in the City of Alexandria, we are asked to take it for granted that it was not taken with a felonious intent. But this fact is not sufficient to overthrow the presumption of a felonious taking which follows under the circumstances here shown.

Judgment affirmed with costs.


author: MOUTON, J. LECHE, J.

text:
    No.-
    First Circuit
    BAY SHOE CO., INC., v. NACOL
    (June 12, 1928. Opinion and Decree.)

      .(Syllabus by the Editor)

    1. Louisiana Digest — Guaranty—Par. 20.
    Where “A” guarantees the debts of Mrs. “B” to the merchant “C,” “C” is not equitably estopped against suing “A” because he first sued Mr. “B” without having given “A” any notice, “A” not having been misled by the allegations of the first suit.
    2. Louisiana Digest — Guaranty—Par. 19, 23; Suretyship — Par. 19, 49, 63.
    The right of the surety to plead that the debtor for whom he has obligated himself, has paid the debt, or part of it must be specially pleaded by him in order to avail himself of this defense.
    3. Louisiana Digest — Guaranty—;Par. 21.
    Where the evidence although conflicting, shows that “A” guaranteed the debts of Mrs. “B” in writing, there must be judgment for plaintiff against the surety where these debts are proven.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Bay Shoe Co., Inc., against S. J. Nacol.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Sandoz and Sandoz, of Opelousas, attorneys for plaintiff, appellee.
    R. Lee Garland and L. Austin Fontenot, of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

It is alleged by plaintiff that he sold goods, merchandise, etc., to Mrs. Gabe Saloum, a resident of Port Arthur, Texas, for the sum of $1133.92, upon which indebtedness she has paid $675.00, leaving a balance of $458.92 due petitioner; that prior to the shipment of the goods, S. J. Nacol, the father of Mrs. Saloum, in order to induce petitioner to advance these goods to his daughter, sent a telegram to petitioner reading as follows: “Will guarantee, payment of order of Mrs. Saloum. She bought of you,” which was dated Eunice, La., October 16, 1923. Plaintiff avers that Mrs. Gabe Saloum has gone into bankruptcy since the creation of said indebtedness, and that it is therefore compelled to look to S. J. Nacol, defendant and guarantor, for payment.

The foregoing which constitutes the substantial allegations of fact in plaintiff’s petition, is denied by defendant. The defendant, in addition to its denial of the allegations of plaintiff’s petition, avers that whatever goods or merchandise sold by plaintiff, more particularly such as appear in the invoices filed by plaintiff, were sold to one Gabe Saloum of Port Arthur, Texas; that plaintiff in May, 1925, instituted suit in Jefferson County, Texas, against Gabe Saloum for the identical goods and merchandise, payment of which is now claimed against respondent in this suit. Under these averments, defendant pleads that plaintiff is judicially estopped from now claiming from Mrs. Gabe Saloum or from defendant, payment for the purchase price of those goods under any contract of guarantee, which is not admitted, but on the contrary, denied.

The pleas in denial and estoppel, are the only defenses urged by defendant in his answer, and there are no other pleas filed.

ESTOPPEL

It appears from the evidence that plaintiff attempted to collect the debt from Gabe Saloum with the view relieving defendant from his liability under the guarantee, and which was intended for his benefit. The defendant was not a party to the proceedings in the County Court of Texas, and has no ground to rest his iplea of estoppel. Such estoppels are not favored, this criticism, not applying, however, to equitable estoppels which aré founded on principles of morality, equity and justice. The estoppel pleaded, if maintained, would defeat the ends of justice and equity. Plaintiff is therefore not estopped from asserting this claim against defendant.

MERITS

When the purported telegram of defendant, of date October 15, 1923, ’was offered in evidence, counsel for defendant objected to its introduction on the ground that it was not admissible until its genuineness had first been established, or until it was shown that it had been sent by the party whose name is typewritten as the sender. The contention is made here that the telegram was inadmissible under the ruling of the Supreme Court in the case reported in Ruhlman vs. Smith, 15 La. Ann. 669.

In that case a paper purporting to contain a dispatch received in Philadelphia from Columbus, Georgia, was offered in evidence. The Court said no proof had been made that the paper produced was in the handwriting of any person employed in the Philadelphia office at the time it purported to have been received, nor had its authenticity been established in any other manner. The Court held that the exception made to its reception as proof, because there was no proof of its genuineness or authenticity, had been well taken, and that the instrument should have been excluded.

C. N. Fortier, office manager for plaintiff company at New Orleans, says on or about October 15, 1923, he wired defendant at Eunice, that plaintiff would ship goods to Mrs. Gabe Saloum on regular terms if he would guarantee the account. He says defendant wired back: “Will guarantee payment of order of Mrs. Gabe Saloum. She bought from you.” A copy of this telegram, which Fortier claims to have received, is filed in the record. There was no record of the telegram procured from the Western Union Telegraph office at Eunice. The present manager at the telegraph office at Eunice said that their records do not show telegrams further back than one year, and that all those prior to that period of time are supposed to have been destroyed. Let us say that the copy of the telegram on the proof offered by plaintiff was inadmissible under the ruling of the Court in Ruhlman vs. Smith, 15 La. Ann. 669, and that it should have been excluded from the record. Even if passed over without consideration, we find sufficient evidence in the record to show that defendant had obligated himself as . guarantor for his daughter Mrs. Gabe Saloum.

In a letter dated Feb. 23, 1924, at Eunice, addressed to plaintiff company, among other things therein mentioned, the letter says: “I . back Mrs. Gabe Saloum for $800.00.” This letter is signed S. J. Nacol. In another letter dated at Eunice, June 11, 1924, addressed to plaintiff company, and to which is signed the name of S. J. Nacol, the following statement is made: “Your letter was received and beg to say I asked Mrs. Gabe Saloum how their account stood, with you. She said she paid you four hundred dollars.” Defendant says he can not write. He admits he can sign his name, and says that his boy writes his letters, but denies that he wrote those letters. If the testimony of defendant is true, the only conclusion then, is, that some one forged the letter of February 23, 1924, with the intention of binding defendant as guarantor for Mrs. Gabe Saloum. Not . only that, but someone also forged another letter on June 11, 1924, merely for the pleasure of conveying the information to plaintiff that defendant had visited Mrs. Saloum at Port Arthur, and had made inquiries in reference to her account with plaintiff company. All that is possible but entirely improbable.

Plaintiff company also introduced in evidence the copy of a letter ¡purporting to have been written by it to defendant of date June 16, 1924. This letter begins as follows: “Replying to your letter of the 11th, regarding the account of Mrs. Gabe Saloum,' will state this party is owing us a balance of $411.00 on her first bill we sold her in October, 1923, which account you can now well see is now nine months old.” Defendant says he knows nothing about that letter. He therefore denies that he received it. If his testimony is true in that respect, we would again be forced to the conclusion that plaintiff company had fabricated this letter to make evidence to establish its claim against defendant. We cannot believe that, and we do not think the trial Court could have reconciled itself to any such idea. We are of the opinion that if defendant did not write the letters above mentioned or did not sign them, that they were written and signed by his boy or someone else at his own dictation, and that in the letter of February 23, 1924, he bound himself as guarantor for his daughter.

The amount filed in evidence is carried against Mrs. Gabe Saloum. C. N. Fortier testifies that all the payments received were applied to her account, including the sum of $695.00, which had been sent in by Gabe Saloum, her husband. He testifies that the notes plaintiff had taken from Mrs. Gabe Saloum, and which the record shows were proceeded upon in the case filed in the Texas Court, had been taken in trying to protect defendant as far as plaintiff company was able to do so. There is no doubt, in our opinion, that the debt had been contracted by Mrs. Gabe Saloum, and that defendant had obligated himself as her surety or guarantor.

Defendant says, admitting for argument’s sake that he is liable as guarantor, he contends, that his liability must be limited to the invoice of goods then ordered from the ¡plaintiff by Mrs. Saloum aggregating the sum of $811.20, and that as against this, he must be credited with the payment received by plaintiff from her which amounted to $675.00, thus leaving a balance of $136.20 yet due on the invoice referred to in the telegram. His contention is that if he is held as guarantor, his obligation must be restricted, as in his telegram the guarantee was for the order: “She bought from you,” and was not a continuing guarantee. In support of this contention defendant places his reliance on the case of Bloom vs. Leon Kern & Company, 30 La. Ann. 1263, wherein the Court .held as follows:

“The promise of a surety assuring the payment of the price of a specific lot • of goods to be sold to the principal debtor is not a continuing guarantee, and hence does not cover other goods subsequently sold to the same principal. Where the debts are of like nature the imputation of payment is made to the debt longest due.”

The plea of payment is a peremptory exception, and if sustained, extinguishes the debt. It may be pleaded in any stage of the action, previous to definitive judgment, but it must be specially pleaded. C. P. 345, 346; Reimers vs. St. Ceron, 19 La. Ann. 207; Suc. of Smith, 9 La. 108; Courtney vs. Davidson, 6 La. 455; Mauras vs. Brewer, 17 La. 82; Relf & Co. vs. Bortjohn Watt & Co., 17 La. 259.

The obligation of the surety is to discharge the obligation or debt, if the debtor does not. C. C. 3035. He has the right to plead that the debtor for whom he has obligated himself, has paid the debt, or part of it, but he, must specially plead this defense. In the very case cited by defendant, Bloom & Co. vs. Kern, 30 La. Ann. 1263, Marx had agreed to become surety for Kern, his brother-in-law. In that case the Court found that Marx had not bound himself under a continuing guarantee and that his suretyship had to be restricted to the purchase price of one lot, invoice or stock of goods. It is true the Court held that his obligation had to be limited to that particular invoice, but the defense urged by Marx, as guarantor, was, that this particular lot or stock of goods had been paid by Kern, the debtor, shortly after Marx had become his surety. In this case, defendant should have followed a similar course and should have specially pled that Mrs. Gabe Saloum had paid a portion of her debt to plaintiff, thus relieving him to that extent. Defendant cannot now, in the brief filed in this Court, urge this plea of payment without any plea in the record to support it.

Judgment was properly rendered for the amount claimed.

LECHE, J.

Concurring: An admission which may give rise to the plea of estoppel, must be of a fact, and not of law, for every one is presumed to know the law, a presumption which, as facetiously remarked by one of our judges, is very violent, but which nevertheless exists of necessity, and is universally recognized, and therefore no one can excuse himself or justify himself on tjhe ground that he was deceived or misled by an incorrect or false statement of law made by his adversary. An admission of a fact on the other hand, made by a person who should know whether the fact is true, to another whom he knows to be ignorant of it, may mislead the latter and cause him to act on the faith of such admission. The one who has made the admission is then morally estopped from denying the existence of such fact. The law discountenances deception, and a plea of estoppel under these conditions, bars the person who has made the declaration of fact from asserting 'the contrary.

Judicial admissions which are ground for the plea of estoppel, must be admissions of fact and they give rise to the plea of estoppel on two grounds:

1. Because the law holds parties to their allegations of record. “It does not allow them to play fast and loose, to falsify what they have solemnly declared to be a fact— the truth.” Gaudet vs. Gauthreaux, 40 La. Ann. 189, 3 So. 645. In that case, the Court further says:

“It is a well settled rule in the administration of justice that a party will not be permitted to deny what he has solemnly acknowledged in a judicial proceeding. The only means of Courts to protect the integrity of judicial proceedings, is the sanctity which the law throws around them.”

2. Because it is morally wrong to permit a litigant who has asserted a fact upon the faith of which his adversary has acted, to turn about later on and deny the fact.

It thus appears that judicial adiriission once made, may not be denied., first on the ground that such denial violated the integrity of judicial proceedings, and second on the ground that such denial would sanction the practice of deception and is immoral. In the case of Farley vs. Frost-Johnson Lumber Company, 133 L. 499, 63 So. 122, the subject of estoppel by judicial admissions is discussed in full and at length. All the previous jurisprudence in this State is reviewed, many decisions are collated, quoted and analyzed, and apparent inconsistencies in these decisions are mentioned and explained. It is pointed out in that case, that even the theory advanced in the decision of Gaudet vs. Gauthreaux, 40 La. Ann. 189, 3 So. 645, based upon the sanctity which the' law throws around judicial proceedings,, is not recognized by the Courts in general and has even been repudiated. See page 541. It was held in the Farley case that where an admission is made in another suit, to which the one offering the plea of estoppel was not a (party, and had not acted thereon, and was not thereby prejudiced, there is no ground to support that plea.

It must be obsérved in the present case that whether Mr. Gabe Saloum or Mrs. Gabe Saloum, his wife, owed the debt, is as much a question of law as it is a question of fact. The law part of the question could not be the basis of estoppel and the fact involved, was better known to Mrs. Saloum’s father, Nacol, than to plaintiff. There can therefore be no ground for equitable estoppel, as Nacol could not be misled by the allegations of the suit brought in the State of Texas against Mr. Saloum, and for the further reason that he was not a party to that suit.

A more recent decision on this subject is that of Wiley vs. Stewart, 145 La. 1088, 83 So. 260, where the Farley vs. Frost-Johnson doctrine is affirmed.

For these reasons, I believe the opinion in this case correctly applies the law on defendant’s plea of estoppel.