text:
    No. 10,687
    Orleans
    THE BISHOP & BABCOCK CO. v. MARTINO
    (October 29, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)
    (January 3, 1929. Decree Supreme Court Writ Refused.)
    L. L. Dubourg, Dart & Dart & Price, of New Orleans, attorneys for plaintiff, appellant.
    Alex M. Swords, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sues for $1,105.65 with interest and 15 per cent attorney’s fees on notes given by defendant as part of the purchase price of a soda fountain purchased from plaintiff. It also prays for recognition of its vendor’s privilege and mortgage on the fountain; or, in the alternative, that it be decreed to be the owner of the fountain, reserving its right to sue for damages for breach of contract.

Defendant ashs for a rescission of the contract of sale and the return to him of $469.05; or, in the alternative, a reduction of price of $1,407.25.

The reasons assigned by defendant why the contract should be rescinded are in part as follows:

“That the' soda fountain which the plaintiff sold to respondent was so defective that it was wholly ■ inadequate for the purposes for which it was purchased.
“Upon installation of fountain when the expansion valves from the refrigerating plant which supplied the fountain were opened sufficiently to keep the ice-cream at its proper temperature, the water and syrups would freeze, and when the temperature was lowered to the proper temperature for the syrups and water, the ice-cream would melt. By these radical defects either in the design or construction of said fountain, respondent was deprived of the service that such an apparatus should have afforded.” '

Defendant finally averred that, after making many futile complaints, he had offered to return the fountain to plaintiff,' but his offer was declined. He then prayed for rescission of the contract1, and in the alternative, for diminution of price.

The trial court decided in favor of defendant and plaintiff in reconvention ordering a rescission of the agreement and a repayment of the amounts paid by the defendant together with the return of the outstanding notes. It was further ordered as a condition precedent to the execution of the above part of the judgment that the ;soda fountain, in its present condition, should be placed at plaintiff’s disposal.

The evidence shows conclusively that above quoted allegations of defendant’s answer are correct and that the soda water fountain was wholly inadequate to serve the intended purpose. If the ice cream compartment was at the proper temperature, the water would freeze, if, on the other hand, the water was kept at the right temperature, the ice cream would melt.

Plaintiff contends that these defects were due entirely to the maladjustment of the refrigerator pipes and that defendant was entirely responsible for the adjustment. Defendant, on the other hand, contends that he knew nothing about refrigeration or the working of the soda water fountain; that plaintiff’s agent was thoroughly familiar with the plan of Prey’s Grocery Store in which he was to operate this soda fountain, and with all the pipes carrying ammonia gas for refrigeration to the various stores in the building.

The main issue to be decided here is the responsibility for the faulty connection of the refrigerator pipes. On this point we get no help from the contract, which merely uses the following language:

“Refrigeration with brick compartment coils. Refrigerating machine to be fur'nished by customer.”

The record shows that the plaintiff company had ceased to make the type of fountain used in this case and that plaintiff was furnished with some data concerning the refrigerator plant previous to filling the order. There is a conflict between the witness as to who actually made the connection between the refrigerating machine and the soda water fountain. Defendant and his witnesses swear positively that the connection was not made by anyone connected with him, while plaintiff’s witnesses are somewhat hazy about the matter.

Mr. Loubat, the agent of plaintiff, who sold the machine and superintended its erection swears that the connection was made by local expert, who connects all of the refrigeration. He did not know who employed the expert. Defendant swears positively that he did not do so and that he never paid one cent for any such service,

The record shows that defendant was constantly complaining of the unsatisfactory work done by the fountain and that he sustained considerable loss. as he had to throw away quantities of ice cream; that plaintiff made no serious effort to remedy the defects although it was given ample time to do so.

' After hearing about seven or eight witnesses and’going into all the surrounding circumstances the trial Judge solved this question of fact against plaintiff and a careful reading of the record convinces us that there is no error in his decision. The Supreme Court has said on this point:

“Where machinery, purchased for particular use, is so defective in design or construction, or both, as to be incapable of rendering the service contemplated by the contract, the obligation rests upon the vendor to ascertain the nature of the defects and to cure them.”

Woodward, Wight & Co. vs. Engel Land & Lbr. Co., 123 La. 1093, 49 So. 719, Syl. 1.

Although a plea of one year’s prescription was filed by plaintiff against defendant’s demand for a restitution of the amount which he had paid, this plea was overruled by the trial court and no reference has been made of it either in argument or brief. At any rate it was not sound. (See above' quoted case.)

For the above reasons the judgment is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 10,451
    Orleans
    WHITNEY CENTRAL TRUST & SAVINGS BANK v. REILLY & HOSKINS, ET AL.
    (November 13, 1928. Opinion and Decree.)
    (December 10, 1923. Rehearing Refused.)
    Milling, Godchaux, Saal & Milling, .of New Orleans, attorneys for plaintiff and appellee.
    George J. Untereiner, of New Orleans, attorney for defendants and appellants.
   JONES, J.

Plaintiff, as holder and owner for value received, sues Phillip F. Reilly, Samuel W. Hoskins and Bertrand C. Francingues jointly and in solido, as makers and endorsers of a promissory note for one thousand dollars ($1,000.00), dated August 22, 1924, payable to order of plaintiff and bearing interest at eight per cent from maturity, said note being subject to a credit of $31.45 as of March 2, 1925. Though there was a separate judgment against each of the defendants for the amount claimed, only B. C. Francingues has appealed. In his answer, after admitting his signature and endorsement on the note, he urged the following defenses:

First: That this note had been cancelled by plaintiff’s acceptance of a renewal note for the same amount dated February 21, 1925, signed and endorsed by Reilly & Hoskins only.

Second: That on the day of the maturity of the note in contest, Reilly & Hos-kins had on deposit in plaintiff bank more than enough money to pay the said note, but plaintiff did not apply said deposit to said note as they should have done, and allowed matters to remain in a status quo; subsequently, before maturity of renewal note, Reilly & Hoskins failed, their restaurant was seized, and they had practically no funds to pay their creditors.

Third: Long after the note in contest matured, and long after the seizure of Reilly & Hoskins’ restaurant, plaintiff charged the amount of this note to Reilly & Hoskins, and illegally apportioned the amount realized from the deposit equally to three' notes of one thousand dollars ($1,000.00) each.

The record shows that no renewal note was ever accepted by the bank in place of the note in contest; that the allegations and the answer as to the amount of deposit on the maturity of the note had no foundation in fact; on the contrary, the first notice which plaintiff had of Reilly & Hoskins’ failure was received from defendant on the morning of March 2, 1925, when he cashed a check of Reilly & Hoskins to his own order for the sum of two hundred seventy-eight and 86/100 dollars ($278.86), leaving only a balance of ninety-four and 43/100 dollars ($94.43) to the credit of Reilly & Hoskins; that this $94.43 balance left on deposit to the credit of Reilly & Hoskins had been equally credited to three one thousand dollar ($1,000.00) notes of Reilly & Hoskins, the one which is in question here, dated August 22, 1924, one dated February 17, 1925, payable ninety days after date, and one dated January 6, 1925, payable ninety days after date.

In his argument in brief in this court, defendant abandoned all the defenses urged in his answer, and sought to show that the note was a non-negotiable instrument. Even if defendant were right in this contention, such an argument has absolutely no merit and no relevancy«here, because the note was in the hands of the original holder and owner.

Plaintiff has answered the appeal alleging that it is frivolous, and taken only for delay. A careful consideration of the record convinces us that this contention is well founded.

The judgment is therefore affirmed with ten per cent (10%) on the total amount of the judgment as damages for frivolous appeal.


author: JANVIER, J. ad hoc.

text:
    No. 11,571—11,455
    Orleans
    GRASSER v. DARCY DARCY v. GRASSER (Consolidated)
    (December 10, 1928. Opinion and Decree.)
    Joseph A. Casey, of New Orleans, attorney for plaintiff, appellee.
    R. A. Dowling, of New Orleans, attorney for defendant, appellant.
   JANVIER, J. ad hoc.

Darcy sues Grasser for $140.00 on a note. Grasser sues Darcy for $300.00, claimed as attorney’s fees for certain consultations and advice with reference to the succession of Darcy’s wife. These cases were consolidated and ' tried together in the lower court and are consolidated here.

So far as the claim against Grasser is concerned, there seems to he no defense. He admits that he executed the note and that he owes $140.00, with 8 per cent interest from date, and also attorney’s fees at 10 per cent on the total amount due. The only question really in dispute is as to the value of the services performed by Gradser with regard to the succession of Darcy’s wife. Grasser testifies that Darcy paid four or five visits to his office; that he gave considerable advice with reference to the succession, and, apparently, property worth $15,000.00 or more was involved. The lower court felt that the services performed by Grasser were worth $200.00 and gave him judgment for this amount, subject to the amount due by him to Darcy on the note.

How many visits were paid, or how much advice was given, is a question of fact, and we do not feel that we should reverse the findings of the trial Judge on a question of fact where the record seems to justify his findings. All of the witnesses were before him and he was in a better position than are we to judge as to their credibility.

■ We do not see that the question of offset is involved. The parties have consolidated the cases and each claims a money judgment against the other. We believe that each is entitled to his judgment. Whether the claim of Grasser for attorney’s fees could be used as an off-set on the note is immaterial, for certainly his judgment can be used to off-set the other judgment. We do not see, in fact, why two judgments should be rendered at all. Since the cases have been consolidated we deem it better to render one judgment.

It is therefore ordered, adjudged and decreed that there be judgment in favor of Jules A. Grasser, and against Patrick Darcy, in the sum of two hundred dollars, and that there be judgment in favor of Patrick Darcy, and against Jules A. Grasser, in the sum of one hundred forty dollars, with interest at 8 per cent, from ■March 15, 1925,. until paid, and with attorney’s fees of 10 per cent, on the total amount due, costs of appeal in both cases to be paid by Darcy.


text:
    No. 11,329
    Orleans
    GOLDENBERG v. WALKER
    (October 29, 1928. Opinion and Decree.)
    (November 30, 1928. Rehearing Refused.)
    ■ Feitel & Feitel & Jos. A. Casey, of New Orleans, attorneys for plaintiff and appellee.
    Loys Charbonnet, of New Orleans, attorney for defendant and appellant.
   JONES, J.

Plaintiff alleges in this suit, which was' filed on May 21, 1926, that he had bought a certain Ford sedan from defendant, on April 13, 1925, for two hundred thirty-two dollars ($232.00) cash, prays for a writ of sequestration and a judgment declaring him the owner. Attached to this petition is a bill of sale from plaintiff to defendant, under plaintiff’s signature, corresponding in dates and amounts to allegations, with right of redemption of car until April 16th. This document recites that there were no outstanding mortgages and no previous sales. The record shows that the petition and writ were served on defendant personally on May 22, 1925, but the Ford sedan could not be located then, and it was not seized until August 20, 1926.

Nellie Walker and her husband, Angelo Pizzo, having been permitted to bond the seizure for three hundred dollars ($300.00) on September 17, 1926, filed an intervention three days later, making the following averments :

First: Ownership of car by purchase by act under private signature from defendant on November 24, 1924, for four hundred dollars ($400.00) cash.

Second: That defendant had, without their knowledge or consent, on October 28, 1924, by act before Joseph A. Casey, Notary Public, given the Mercantile Agency a duly recorded chattel mortgage for two hundred and twenty-five dollars ($225.00), represented by a note of defendant for that amount.

Third: On March 2, 1925, defendant gave another chattel mortgage to the -same agency for two hundred and ninety dollars ($290.00), evidenced by note of that date.

Fourth: That said sedan had been continuously in their possession since November 20, 1924.

Fifth: That on May 21, 1925, they first learned of these two mortgages, and in order to protect themselves they paid $___ to the agency on note dated October 28, 1924, whereupon the agency delivered to them both notes.

(N. B. They do not say how much they paid or when, nor do they allege subrogation to its rights by the agency.)

Sixth: They then prayed to be declared the owners of the car, or, in the alternative, for recognition of their privilege as holders of a chattel mortgage for two hundred and ninety dollars ($290.00). (There is nothing in the prayer about the first mortgage note for two hundred twenty-five dollars ($225.00), although they allege that was the note paid by them.)

Attached to this pleading is a document dated November 20, 1924, reading as follows :

“Nov. 24-1924
“I received four hundred dollars from Mrs. Nellie Pizzo Witch she holds my Ford sedan untill Witch said amount is paid with intres
Car Motor No 8661602 Licens 119526
Car is to be kept at 324 S. Claibo”ne St untill said amount is paid in full, I further agree to let Mrs Pizzo have the use of said car untill said amount is paid back
“John V Walker
342 S Claiborne St”

This is plainly an Act of Pledge.

On the trial of the case defendant admitted that he had sold the car to plaintiff, as alleged, but he said that his statement as to outstanding mortgages was false, as the Mercantile Agency then held two mortgages on the car. Plaintiff testified that he did not take the car from defendant when he- bought it, as defendant had a right to redeem the car for a few days, and that he filed suit shortly thereafter because he could not get delivery of the car. He further testified that the constable was unable to obtain the car, which was in the yard of defendant’s brother, next door to Mrs. Pizzo’s residence, because the sister, Mrs. Pizzo, and her father, stopped him and the sheriff and insulted them. Consequently, the car was not seized until more than a year later when intervenor’s brother had it out on Tulane Avenue. He had been paid one hundred dollars ($100.00) on account.

The testimony of Mrs. Pizzo is involved and contradictory. She first says she bought the car in good faith on November 20, 1924, for four hundred dollars ($400.00) cash, from her brother, who was then living with her; that she had borrowed this amount — one-half from her stepmother and one-half from her brother Louis; on May 21st she paid the Mercantile Agency twenty-nine dollars ($29.00) on a note and received a receipt for that amount, which is in the record. On October 10th (year not given) she told Heymann, manager of the Mercantile Agency, that Goldenberg was trying to seize the car; whereupon Heymann told her that if she would pay the notes he would give her the chattel mortgage. She then paid him two hundred and twenty-five dollars ($225.00) in cash and he gave her both the notes. In the record are certified copies of the two acts of mortgage and the two chattel mortgage notes, signed and endorsed by defendant. One note for two hundred and twenty-five dollars ($225.00) is dated October 8th, payable monthly at $22.50 per month; the other dated March 2, 1925, is for two hundred ninety dollars ($290.00), payable $29.00 per month. These notes bear all the usual clauses as to! rights of the holder in case of the failure to pay installments. They are paraphed by the notary, but they show no payments whatever.

Intervenor further testifies that the auto was in her possession when the seizure was first attempted, but it was being driven by her brother, Louis, when it was finally taken. She swears positively that she had never heard of plaintiff’s purchase until May 21, 1925, and that she was the owner of these two mortgage notes on April 13, 1925. Plainly, this last statement is false, for the receipt shows that she made a payment on one of these notes of twenty-nine dollars ($29.00) on May 21, 1925, and, she admits herself that she hnew of the attempted seizure by G-olde'nberg about the same date. She further swears that her brother had paid her a few dollars on the notes, but very little. On cross-examination she swears that her brother was living with her, but that the auto was kept at her father’s house, three doors away; that she got both notes on March 2, 1925, w\hen she paid the two hundred and fifty-two dollars ($252.00). Later, she says that she paid the notes on October 10, 1925, and received a bill of sale on that date from her brother covering this car for two hundred and twenty-five dollars ($225.00).

In the record is an original bill of sale from defendant to Mrs. Pizzo, passed before Casey, notary public, for two hundred and twenty-five ($225.00) dollars, which amount is said (in the act) to have been paid by the purchaser to the mercantile agency in settlement of a mortgage note for two hundred and twenty-five dollars '($225.00), recorded in Mortgage Book 1305, folio 463.

On page 30 she swears that she went down and paid the notes without her brother because he was away on a ship, and she did not know at the time the amount of his indebtedness.

The judgment below decreed plaintiff to be the owned of the car, but if defendant failed to deliver it, then in the alternative plaintiff was given judgment for one hundred and thirty-two dollars ($132.00) with legal interest from date, and with recognition of plaintiff’s lien.

The record clearly disproves intervenor’s claim of ownership and the above analysis shows that she contradicted herself repeatedly as to when she obtained the mortgage notes, and it entirely fails to show that she bought these notes. On the contrary we agree with the trial judge that she apparently paid these notes for her brother and looked to him, for reimbursement.

The issue as to payment of these notes was purely one of fact and the decision of the lower judge on this point must be affirmed, as there is no apparent error. On the contrary, the contradictions in the allegations and statements of the intervenor strongly support his conclusion.

The following authorities support this conclusion:

R. C. C., Arts. 1922, 2247, 2480.

Pons vs. Y. & M. V. R. R., 131 La. 313, 59 So. 721.

For above reasons the judgment is affirmed.


author: JANVIER, Judge ad hoc.

text:
    No. 11,537
    Orleans
    DEL TYLER v. INGRAHAM
    (December 10, 1928. Opinion and Decree.)
    E. L. Bordelon, of New Orleans, attorney for plaintiff and appellant.
    Jules A. Grasser, of New Orleans, attorney for defendant and appellee.
   JANVIER, Judge ad hoc.

The judgment in this matter was rendered on May 23, 1927. A motion for appeal was filed exactly one year later, to-wit: May 23, 1928.

Act 128 of 1921, which was passed to regulate the practice in the City Courts for the City of New Orleans, provides in Section 1, among other things, “Appeals shall be allowed, and be returnable to the Court of Appeal, within ten days, exclusive of Sundays, from the rendition of the judgment, * * *.” It is very plain that under this act, this appeal must be dismissed as having been taken after the expiration of the allotted time. This court passed on this identical question in “Estate of L. R. Saissont vs. A. S. Demourelle, 4 La. App. 160. The constitutionality of Act 128 of 1921 was attacked in that case and it was held that the act was in all respects constitutional and the appeal was dismissed. We must take the same action here.

It is, therefore, ordered, adjudged and decreed that the motion to dismiss be sustained and that the appeal herein taken be dismissed at appellant’s cost.


text:
    No. 10,495
    Orleans
    ARENDSEN v. EDW. D. BOYLE & CO.
    (December 10, 1928. Opinion and Decree.)
    Alexis Brian, of New Orleans, attorney for plaintiff and appellee.
    Bond, Curtis & Hall, of New Orleans, attorneys for defendant and appellant.
   JONES, J.

Plaintiff claims $195.00 for hauling stone curbing at an agreed price of 6 cents per foot to various points between Napoleon Avenue and Broadway along Willow Street, which was then paved by H. W. Bond & Brothers.

Defendant answered, admitting that plaintiff had hauled, the quantity of stone alleged at the agreed price of 6 cents per foot, hut averring that he had breached his contract by failing to haul the entire amount of stone required by the paving company, and thereby caused defendant a loss of $223.00, for which amount he reconvened.

There was judgment below for plaintiff and defendant has appealed.

We must decide the qjuestion of fact as to whether defendant actually contracted to haul all the stone, and if so, whether the failure to pay him as the work progressed justified him in abandoning the work.

The record shows that plaintiff was in the hauling business and that he had worked for defendant before and had been paid promptly, that during the months of June and July plaintiff hauled some curbing' at the agreed price of 6 cents per foot and that, after many demands, he was paid about July 22, $50.00 on account, although his hill at that time was for a larger amount; that between July 22 and August he hauled more curbing, bringing the total amount up to 3,750 feet, and his entire bill for services up to $245.50; that he repeatedly made demands for further payments and was constantly made futile promises by defendant, that the price at which the defendant hauled the balance, after plaintiff stopped, was 14 cents per foot, a seemingly exorbitant price.

Plaintiff testifies that he did not agree to haul the entire amount of curbing due for the Willow Street job, but that he did agree to haul curbing at the rate of 6 cents per foot and that he expected to be paid as the work progressed, as he needed the money to meet his monthly payroll, that he was perfectly willing to haul the entire amount, had the payments been made as the work progressed, but that he could not continue ■the work without compensation.

H. W. Bond testifies that he heard the contract made and that plaintiff did agree to haul all the curbing needed for paving Willow Street, about 10,000 feet; that, as bis firm was being greatly inconvenienced by the delay of plaintiff in hauling the stone, he telephoned plaintiff that he would make the payments if (plaintiff would give him a bond or guarantee for completion of the work; whereupon plaintiff said: “To Hell with Boyle — I am getting 8 cents per foot for hauling on the Amelia Street job.” This statement is denied by plaintiff.

C. J. Kelly, a- member of defendant firm, also testifies that Arendsen agreed to do all the hauling, but his evidence is so conflicting as to demands for payment and as to his refusal to pay that it has little probative value.

Plaintiff’s bookkeeeper testifies that she repeatedly took messages from defendant to plaintiff in which he asked for trucks and promised to send a check, but that defendant never did send a check.

The trial judge set ■ forth his conclusions upon this contradictory testimony in the following brief and clear opinion:

“The contract was verbal and not at all specific. There was no stipulation as to quantity of material to be hauled nor as to payment for work done. I think it fair to consider that payments for the hauling must be paid as the work progressed. Plaintiff hauled 3750 feet of curbing and was only paid $50.00, less than one-fourth of the amount earned under the contract and he refused to proceed further with it unless he was paid weekly, or as the work progressed. Repeated demands for such payment were ignored by defendant. This refusal justified the plaintiff in abandoning the contract and he is entitled to pay for such work.”

As both plaintiff and defendant admit that nothing was said as to time of payment, the court’s finding that payment should have been made as the work progressed seems reasonable and we see no error in the court’s finding that there was no stipulation as to quantity of stone to be hauled. The plaintiff being in the hauling business and having worked before for defendant and having been paid promptly, would naturally wish to haul as much stone as he could, as the record shows that the price was satisfactory to him, but he would hardly have bound himself to haul for months without compensation, till the work was completed.

For above reasons the judgment is affirmed.


text:
    No. 11,385
    Orleans
    DAVIS-WOOD LUMBER CO. v. RALPH ROMANO AND FEDERAL SURETY CO.
    (November 13, 1928. Opinion and Decree.)

      L. E. Jung, Edward Fallon, Jr., of New Orleans, attorneys for plaintiff and appellant.
    Ed. De Verges, of New Orleans, attorney for defendant and appellee.
   JONES, J.

Plaintiff sued Ralph Romano and the Federal Surety Company jointly and in solido for the sum of one hundred fourteen and 82/100 dollars ($114.82), alleging that it sold and delivered to contractor, Ralph Romano, lumber and material for use upon the building which he was constructing for one Ambrose A. Sanders, in square bounded by Louque, Voisin, Vicksburg and St. Louis Streets.

After alleging delivery and actual use of the .lumber and material on the building, it averred that it had filed an affidavit in the mortgage office and therefore had a lien on the premises.

Defendants filed exceptions <?f vagueness to plaintiff’s petition, along with answers denying any indebtedness, and averring that even if there were any, the affidavit had been filed in the mortgage office too late to give any privilege.

Exceptions and merits were then tried together, whereupon plaintiff, after abandoning all claim to a lien, insisted on judgment against both defendants personally.

The suit was dismissed as against both defendants and plaintiff has appealed to this court.

The evidence shows that Romano and one F. P. Crockett, as partners, were running a little shop in the yard of defendant lumber company for the manufacture of frames and screens, in the early part of 1926; that defendant was paralyzed about April 12, 1926, and that the partnership was dissolved shortly thereafter, as defendant was unable to manage the business. To support its contention that the materials had been sold to Romano, plaintiff offered in evidence four dray tickets— two dated April 26, 1926, one dated May 18, 1926, and one dated May 19, 1926. Each of these tickets shows that sale was made to F. P. Crockett for delivery at the little shop above described, for use on this building.

The first two of these dray tickets are gigueaJsy F. P. Crockett and the last two' by J. E. Swift, who was a carpenter working in the shop and who testified for plaintiff. The filing of these tickets in evidence was objected to by defendant on the ground that they showed on their face that the lumber had been sold to F. P. Crockett and not to defendant. Thereupon, attorney for plaintiff stated to the court that he was offering these tickets not for the purpose of showing where the material was used, but for the purpose of showing the court that there should be judgment against Romano. The judge then allowed the trial to proceed, though the tickets clearly contradicted the petition. Plaintiff then offered in evidence a letter from defendant to it, of date February 27, 1926, in which defendant authorized plaintiff to deliver to Crockett, upon his verbal order, any lumber or material for use in the shop.

After R. M. Wood, Secretary of the Davis-Wood Lumber Company, had said on direct examination that Romano had never repudiated the letter of February 26, 1926, either verbally or in writing, he admitted, on cross-examination, that he did not know When the partnership was dissolved. After being reminded of a visit that Mrs. Romano made to his office about April 14, 1926, to notify him that the partnership had been dissolved, he testified:

“I recall something like that, but it was after this material had been supplied.”

However, he could not give the date of Mrs. Romano’s visit, and the date on dray tickets is twelve days after April 14, 1926.

Mr. Wood’s testimony agrees with the testimony of Mrs. Romano as to his visit to the Romano home and the discussion of Crockett’s indebtedness. Mrs. Romano testifies positively that she went to th$ office of the plaintiff company two days after Mr. Romano had a stroke of apoplexy and told R. M. Wood that her husband was ill and would not be responsible for any material that was sent to the shop. On the same visit she paid a bill for twenty and 85/100 dollars ($20.85), the total amount then claimed from Romano by plaintiff. The testimony of this witness is confirmed in part by that of L. M. Little, a witness for defendant, who states positively that Crockett owned and operated the shop. On this point, also, the testimony of J. E. Swift is partly corroborative.

The trial judge, convinced by the dray tickets, and by the testimony of Mrs. Romano, as confirmed by the other witnesses, found, as a fact, that the order of February 27, 1926, had been revoked, and in this conclusion we can see no manifest error. On the contrary, a careful examination of the entire record convinces us that it sustains his conclusions.

For above reasons the judgment is affirmed.


text:
    No. 10,759
    Orleans
    ANSELMO v. PISCIOTTA
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)
    Jas. N. Brittingham, Jr., of New Orleans, attorney for plaintiff and appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant appellant.
   JONES, J.

Plaintiff, averring that he has a lessor’s lien and privilege upon the property in the leased premises, sues defendant in the First City Court of this City for two hundred twenty-five dollars ($225.00) past due rent, and prays for judgment in that amount with recognition of his privilege. The writ was duly issued and plaintiff was personally served with the citation and copy of petition on September 26th. On the 28th day of September, 1926, after plaintiff had offered in evidence the petition, the affidavit, the order of seizure, the citation showing personal service on defendant, and the certificate of the clerk showing that no answer had been filed, and the affidavit made by plaintiff as to correctness of the claim, the trial-judge rendered judgment for the amount claimed, with recognition of plaintiff’s lien and privilege. This judgment reads in part as follows:

“Defendant failing to appear and answer, and the legal delay in which to make answer having elapsed and plaintiff making due proof of claim herein * *

In this court defendant has filed what purports to be an answer and a reconventional demand. We cannot consider this document, as the case comes before us only on the pleadings filed below. See Constitution of 1921, Article 7, Section 91, paragraph 3:

“The First City Court of the City of New Orleans shall also have jurisdiction concurrently with the Civil District Court of all suits for moneyed demands above one hundred dollars and not exceeding three hundred dollars, exclusive of interest; provided, that such cases shall be tried and testimony and evidence therein shall be taken in the same manner as cases tried in the Civil District Court, and the appeal in the Court of Appeal shall be tried upon the original record thus made up and shall not be tried de novo * *

See also Act 128 of 1921.

In Goldman vs. Thomson, 3 La. App. 469, this court held as follows:

“Where the recitals in a judgment taken by default are that ‘plaintiff has made due proof of his claim,’ it will be presumed that legal and sufficient evidence was before the Court.
“In City Court suits for money demands within amount stated in Act 128 of 1921, no preliminary default is necessary, aijjj delays for answering are three days only, Sundays and holidays excluded. A judgment taken in conformity with these provisions is valid.”

That case, which reviews the subject thoroughly and quotes numerous authorities, is controlling on this court. See also Wilson & Co. vs. Laporte, 4 La. App. 370; (Teiss. Orleans App. Dig. 64); First National Bank vs. Richardson, 163 La. 15, 111 So. 475; Woodward-Wight vs. Savant, 1 La. App. 232; Southern Athletic Club vs. Forster et al., 1 La. App. 310.

For above reasons the judgment is affirmed.


author: JANVIER, Judge Ad Hoc.

text:
    No. 11,618
    Orleans
    BECO v. THE PEOPLES INDUSTRIAL LIFE INSURANCE CO. OF LA.
    (December 10, 1928. Opinion and Decree.)
    Norman, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiff and appellee.
    A. P. Tureaud, of New Orleans, attorney for defendant and appellant.
   JANVIER, Judge Ad Hoc.

Defendant company, on January 15, 1923, issued industrial policy No. 203558, on the life of Ranson Beco. On June 20, 1927, the policy herein sued on was issued. On this policy the company made the following notation:

“CHANGED PROM INDUSTRIAL POLICY NO. 203558, DATE OP ISSUANCE 1/15/23 TO LIFE.”

The policy is in favor of Robert Beco, beneficiary, brother of Ranson Beco, the insured. It provides that in case of death the company will pay to the beneficiary the sum of $231.00. It contains the following stipulation:

“ACCIDENTAL DEATH. In the event of death of the insured from accident within six months from the date of this policy, the full amount of insurance named in the schedule below will be paid subject to the Policy Conditions.”

This stipulation seems to have been inserted for the purpose of over-riding, in the case of accidental death, paragraph numbered 9, which reads as follows:

“Only one-half of the death benefit payable if death occurs within six calendar months from date hereof.”

' The defendant company contests its liability under the policy on several grounds, primarily on the theory that the deceased, at the time he met his death, was engaged in a violation of the law; and secondarily, on the theory that, as the death occurred within six months of the issuance of policy No. L-13602 (the one sued on), only one-half of the death benefit is payable, unless the beneficiary- can prove that the death resulted from accident.

On the trial plaintiff introduced in evidence the policy sued on. There seems to have been an understanding between counsel that the defendant company would introduce the proof of death, so, after introducing the policy itself, plaintiff rested. The proof of death was later offered in evidence.

In offering the policy in evidence, counsel for plaintiff used the following words and figures:

“We offer, introduce and file in evidence policy L-13602, issued on- the life of the decedent, in which the plaintiff is nam^J the beneficiary and which policy is a renewal of policy No. 203558 issued January 15, 1923, on the decedent’s life.”

To this offer counsel for the defendant made the following objection:

“I object to the statement of counsel for plaintiff that policy No. 113602 is a renewal of Policy No. 203558. This policy is a new policy issued on the life o>f Ranson Beco.”

This objection was made for the purpose of limiting the rights of the plaintiff to such as may have existed under the policy sued on, and in order to prevent the extension of his rights to such as may have been carried over from the original policy by reason of the notation referred to as having been made on the..policy sued on. In other words, defendant contends that the policy sued on had not been in existence six months at the time of the death and that therefore plaintiff could recover only one-half of the death benefit in the absence of proof of accidental death.

It appears to us that the parties clearly intended that any rights which might have accrued under the original policy and by reason of its original date, should be carried over into the second policy. We cannot see that any other meaning can be given to the typewritten note, except this one, and we therefore hold that it was the intention of the parties that the date of the original policy should he considered as the date from which the six months’ period should start to run. As that original policy was issued January 15, 1923, the six months’ period mentioned in Section 9 of the second policy had clearly run long before the death of the deceased. Plaintiff, therefore was entitled to the full benefit without the necessity of proving accidental death.

The contention that the deceased was engaged in a violation of law at the time he met his death, and that therefore his beneficiary should not recover under the policy, is a special defense, and the burden of proving it plainly rests upon the defendant. The record contains no evidence on which we can sustain this defense. The proof of death shows as the cause of death: “Hemmorrhage and shock following gun shot wound of chest.” The word “Homicide” also appears on this proof. Further down on the proof appear the words “Shot by watchman.” We do not believe that any of the words which we have quoted would justify us in holding that the deceased met his death as a result of a violation by him of law.

The' only other proof offered was the Coroner’s proces verbal. This was objected to on the ground that the Coroner’s proces verbal is admissible only for the purpose of proving the fact and the cause of death. We believe that the objection was properly sustained. The fact of death was not in dispute. It was, in fact, proven by the death certificate. The cause of death was a gun shot wound. Surely, a coroner’s proces verbal is not admissible to prove facts leading up to the infliction of a gun shot wound. These are facts which must be proved by actual eye-witnesses, or circumstantial evidence. As to these matters, the Coroner’s proces verbal would be hearsay and therefore inadmissible.

Appellee has filed a motion in this court asking for damages for frivolous appeal. We do not believe that this should be allowed.

For these reasons, the judgment appealed from is affirmed.


text:
    No. 10,475
    Orleans
    MERCIER v. MUNICH
    (November 26, 1928. Opinion and Decree.)

      F. F. Tessier & Monroe & Lemann, of New Orleans, attorneys for plaintiff and appellee.
    Jno. D. Nix, Jr., & W. W. Wright, of New Orleans, attorneys for defendants, appellants and appellees.
   JANVIER, Judge ad hoc.

Mrs. Hans, before her marriage had acquired certain property on St. Charles Avenue, between Fern and Burdette Streets. In 1921, Mr. and Mrs. Hans decided to reconstruct the building into a fourplex apartment and for this purpose employed Delisle & Mercier, who were engaged in both designing and superintending the construction of buildings.

The contract for the designing of the alterations and for the doing of the construction work was verbal, but there is no controversy over the fact that Delisle & Mercier were to receive compensation equal to 8% of the cost of the work.

It is also admitted that the cost of the work exceeded $25,000.00, and that Delisle & Mercier only received $850.00 on account of their fee. This suit is for the balance, to-wit: $1,150.00.

The defense is that Delisle & Mercier had prepared the plans and had guaranteed to the defendants that the construction work would cost, not more than $17,300.00, and that the fee was not earned because the construction work cost so much that the defendants could not finish it, but were forced to sell the building to one Rodick at a sacrifice price, and their loss was due entirely to the incompetence of Delisle & Mercier. It is admitted by the plaintiff that the work cost considerably more than $25,000.00, but he contends that the reasons for the additional cost were numerous changes and alterations made by Mr. and Mrs. Hans.

Before the work was completed the building was sold, in its then condition to Rodick. The sale took place on October 21, 1921, but was not registered in the Conveyance Office until October 24, 1921, and in the meantime, to-wit, October 22, 1921, Delisle & Mercier recorded a lien against the property for the amount claimed to be due.

The District Judge rendered judgment in favor of plaintiff, who was the assignee of the interest of Delisle. The judgment was rendered, apparently through a clerical error, for $1,500.00, instead of for $1,150.00. However, the District Judge rejected the claim of the plaintiff that he was entitled to a lien. Since ’ this case has been pending, one of the defendants, Hans, has died and his wife, as the universal legatee, has been substituted in his stead.

There are two questions presented, one of fact, the other of law. The question of fact depends, for its determination, entirely upon the testimony of the various witnesses. It is manifest that a very large number of changes were made in the original plans. Some of the men employed to do the work testified that Mrs. Hans required them on several occasions to remove the work in the afternoon, that they had done in the morning. One of them testified that he was taking orders regularly. from Mr. and Mrs. Hans, and that so many changes were made that he did not have plans for all of them.

It is admitted that a wood porch was required in the original plans but that the defendant required that this be changed and that a concrete porch be substituted. Manifestly this was an expensive change. Another important change resulted from the defendants deciding they wanted a closed porch instead of an open one.

A careful reading of the record in this regard convinced us that the trial judge was correct in his finding, that the reasons for the enormous increase in the price of the construction were the changes which were required by the defendants. This being so, we see no valid reason why the fees of the architects and contractors should not be paid.

There remains then solely the question whether or not they are entitled to a lien. This work was commenced in 1921. At that time a written and recorded contract was not essential to the creation of the privilege in favor of the contractor, etc. This question is settled by a reading of Act 29 of 1916f which act has been interpreted by the Supreme Court of Louisiana in the various Rose vs. Eunice Electric Theatre Company cases, reported in the 154 La., pages 81 to 103, 97 So. 322 to 330. All that is required is that the lien be recorded within forty-five days of the completion of the work and in this case the lien was recorded before the completion of the work.

We are of the opinion, therefore, that the plaintiff is entitled to a lien on the building and to this extent the judgment appealed from should be reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended and that there now be judgment in favor of plaintiff and against Mrs. Bernard B. Hans, individually and as universal legatee of Bernard B. Hans, in the sum of $1,500.00, with the recognition of the lien and privilege in favor of plaintiff and upon the property in question.


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    No. 11,649
    Orleans
    RENEAU v. BROWN ET AL.
    (December 10, 1928. Opinion and Decree.)

      L. L. Dubourg, of New Orleans, attorney for plaintiff and appellant.
    John Singreen, of New Orleans, attorney for defendants and appellees.
   JANVIER, Judge ad hoc.

Plaintiff, with his wife, rented from the two defendants and others the premises, 1112 Elysian Fields Avenue. Next door lived the defendants. One of the defendants, Mrs. Marie Brown, was a widow. The other defendant, Mrs. Dominick Matranga, lived with her husband. Both properties were owned by the two defendants jointly with two other parties; the four having inherited them from their mother. In the premises next door to plaintiff and occupied by the defendants were kept five dogs. On the day of the happening of the event which gave rise to this suit, plaintiff and his wife were carrying a tub along a very narrow alley which was bordered by a board fence in a dilapidated condition. For some reason or other, the dogs next door became excited and one or more of them jumped against the board fence, which was in such bad condition that one of the boards fell, leaving an opening through which at least one of the dogs got into the yard of the premises occupied by plaintiff and his wife.

The injury sustained by the plaintiff was very slight, but there is little doubt that it was actually caused by the teeth of a dog.

The contentions of the defendants are many. They aver that the injury was not caused by the teeth of a dog, but by the plaintiff striking his leg against a nail or sharp edge in the fence. Also, they say that the dogs were not vicious, as they had never bitten any one before or shown evidence of bad character and that, as dogs are domestic animals that the defendants are not liable in the absence of proof of previous vicious tendencies.

They also contend that they did not own the dogs and there is considerable dispute as to just who did own them.

They make the further contention that they cannot be held liablé because they were the joint owners of the premises with others and that the others were not made defendants.

Of course, if plaintiff’s injuries were not sustained as a result of a dog bite, he cannot maintain this action against defendant. Therefore, this is the first bridge which must be crossed. The only eye witnesses were plaintiff and his wife. They both' testify that at least one dog did actually get into the alley and. bite plaintiff. There is no evidence to the contrary and in view of the positive testimony of both of these witnesses, and the corroborating circumstances that the injury was on the back of his leg, we are of the opinion that the injury sustained was the result of a bite by a dog.

Having determined that the injury was caused by the bite of a dog, the next question which presents itself is whether or not the previous character of the dog or dogs was such that the persons harboring, them, should be held liable under the circumstances presented here.

The fact that these dogs, or at least one or more of them, must have been considered vicious by those persons in charge of the premises, is shown, we think, by the treatment that these people accorded the dogs. They testified that they always kept the dogs in the rear of the ¡premises, never let them go outside, and were always most careful not to let them come into contact with the public. These actions on their part indicate that they knew that the dogs were dangerous. This fact is further borne out by the testimony of one Houdibore, who had previously lived in the premises where the dogs were kept and who stated that he could never come into the yard without taking a stick or something in his hand to keep the dogs off. The credibility of Mr. Houdibore is attacked. We believe, after a careful reading of it, that it is worthy of belief, particularly as it seems to be corroborated by the actions of the defendants, which actions show that the dogs were of such a nature as to require their being kept closely confined.

If the dogs were of this nature, it was manifestly the duty of those who had them in charge to see that the premises where they were kept were enclosed with sufficiently strong fencing to prevent their escape. The happening of this accident shows conclusively that they did not properly discharge this duty. If, as a result of their failure, injury was sustained by the plaintiff, they should be required to compensate him for his losses.

it is argued that the other owners of the property should have been parties defendant, and that as they were not brought into the suit as defendants, the plea of non-joinder should have been sustained.

We see no necessity for the presence of the other property owners in the suit and this for two reasons. First, the liability here depends not on the ownership of the premises nor in fact on the ownership of the dogs, but on the harboring or keeping of the dogs. Second, if there is liability it arises from tort and, conceding for the sake of argument that the other owners of the premises are joint tort feasors, there is nothing which prevents a person injured by two or more tort feasors from singling out any one or two or more and directing the action against that one or against those selected and it is well settled that in such a suit the party or parties sued cannot require that all the other joint tort feasors be made parties. See Shield vs. F. Johnsons & Sons Company, Ltd., et al., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080. In the syllabus of that case appears this language: “If the concurrent negligence of two or more persons combined results in an injury to a third person the latter may recover from either or all.”

It is argued that plaintiff did not minimize his damage in that he did not take the serum for rabies or the serum for tetanus. We are unable to follow this argument. These serums are preventatives and as neither of the diseases mentioned- was contracted by the plaintiff, his failure to take the serum in no way diminished or increased the injuries sustained by him. Of course, had plaintiff refused to take these serums and had he contracted rabies or tetanus as a result of the bite, coupled with his failure to take these 'ordinary serums the situation would have been entirely different. Under the doctrine announced by the Supreme Court of Louisiana in Donovan vs. New Orleans Railway & Light Company, 132 La. 239, 61 So. 216, 48 L. R. A. (N. S.) 109, a person who sustains an injury must submit to such reasonable treatment as competent physicians advise. That question, however, is of little importance here.

We do not believe that the defendant, Mrs. Dominick Matranga can be held liable.

Mrs. Matranga is a married woman living with her husband under the community of acqiuets and' gains. It appears to us that the harboring of the dogs by a husband and wife is a community act and that if it is an act of the community, liability resulting therefrom is a community liability, and a claim for redress should be directed against the community by a suit against the husband.

As we have already said Mrs. Matranga is not made liable by reason of the fact that she is the joint owner of the premises.

Plaintiff’s injuries seem to have been very slight. There was some suffering and surely there must have been some fright. Under all circumstances we think that $50.00 will amply compensate plaintiff for his injury and losses.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed as to Mrs. M. Brqwn and that there now be judgment in favor of plaintiff and against Mrs. M. Brown in the sum of $50.00 and that the judgment in favor of Mrs. D. Matranga be affirmed.


author: DART, Judge ad hoc.

text:
    No. 10,516
    Orleans
    G. P. EBERLE & CO. v. SCHMIDT OSBORNE STORAGE & TRANSFER CO.
    (December 10, 1928. Opinion and Decree.)

      Wm. A. Shaw, of New Orleans, attorney for plaintiff and appellant.
    H. M. Ansley & S. S. ■ Goldman, of New Orleans, attorneys for defendant and appellee.
   DART, Judge ad hoc.

Plaintiff, a public accountant, appeals from a judgment rejecting in part and allowing in part its demand against a partnership operating in New Orleans under the trade name Schmidt Osborne Storage & Transfer Company and against the persons alleged to be members of the same.

The suit was upon service contracts alleged to have been entered into in December, 1922, and January, 1923. It appears that the first citation issued in the case was addressed to the partnership and served upon Osborne, one of the partners. Issue was joined and after a trial resulted in a judgment against the partnership and against Osborne individually for $396.00. After a fruitless attempt to execute this judgment, plaintiff caused citation to. run against Schmidt and Sbisa, the other alleged partners, who joined issue and after hearing there was judgment in favor of Schmidt dismissing the plaintiff’s demand and in favor of plaintiff against Sbisa for $119.25 and in answer to the plaintiff’s appeal from this judgment Sbisa asks that the same be affirmed.

We are not concerned in the judgment against the partnership and Osborne as that has become res judicata, nor are we concerned in that part of plaintiff’s appeal which sought to reverse the judgment against Schmidt, for it is admitted he has died since the appeal was taken and his succession and/or the legal representatives of the same have not been made party as provided by the rules of this court.

Turning to the case against Sbisa it was conceded at the bar during argument that the only question before us is whether the partnership was a commercial or an ordinary one and if the latter, the judgment is correct and must be affirmed.

The evidence shows that the partnership, operating only’ in New Orleans, was engaged solely in the transfer and storage of movable property for hire through the medium of automobile trucks into the warehouse of the partnership or by delivery to railroads or other transportation facilities in which the partnership was not interested and in which it had no participation. It is also admitted that sales were occasionally made of the effects on storage for the sole purpose of collecting storage charges thereon, which sales were made under the authority of Act 85 of 1894 as amended.

Other questions agitated and decided below related to the fact that Sbisa only became a member of the partnership after the December, 1922, bill was incurred, and under the case as it is presented to us these problems are no longer at issue, but if they are still active we find the proof clearly establishes that Sbisa is involved only in the item of indebtedness incurred after his entry into the firm in January, 1923, and is therefore responsible only on that item, and his answer to this appeal leaves for our decision the legal question as to the extent of his liability upon the whole of this admitted debt of the partnership.

The Civil Code, Article 2825, provides:

“Commercial partnerships are such as are formed;
“1st. For the purchase of any personal property and the sale thereof either in the same state or changed by manufacture.
“2nd. For buying or selling any personal property whatsoever as factors or brokers.
“3rd. For carrying personal property for hire in ships or other vessels.”

The facts as we find them established by the testimony, do not bring the operation of the partnership within the definition of commercial partnerships as set out in Article 2825, and the lower judge reached a like conclusion. The uniform construction of the third paragraph of that article is to the effect that a partnership of this character is an ordinary one and the members of the same- are bound only for their virile shares of the debts of the same and not solidarily as in the case of commercial partnerships.

Chaffe vs. Ludeling, 27 La. Ann. 607;

Beauregard vs. Case, 91 U. S. 141, 23 L. Ed. 263.

An earnest argument buttressed by much learning has been made by appellant to induce us to construe the‘words “ships and other vessels,” as illustrative and not exclusive, but that would be to substitute new words for the existing words of the statute, and in short to change its meaning entirely. This is not within our province and the appeal should be made to the legislature where the power is alone lodged to change this ancient statute and the uniform judicial construction of the same in Louisiana.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 11,102
    Orleans
    PICHELOUP v. GIBBONS
    (November 26, 1928. Opinion and Decree.)
    Terriberry, Young, Rault & Carroll, of New Orleans, attorneys for plaintiffs and appellants.

      J. K. D’Avricourt, of New Orleans, attorney for defendant and appellee.
   JANVIER, Judge ad hoc.

Defendant is a dentist, practicing in New Orleans. While treating Mrs. Tricon, one of the plaintiffs; in pulling out his extension cabinet to a position over the chair in which Mrs. Tricon was sitting, he spilled a small quantity of carbolic acid on his patient. He righted the vial which contained the acid, but in an effort to assist her he again upset the vial and spilled the remaining contents on her dress, on the backs of her hands and on her left thigh.

Mrs. Tricon sues for $25.00, the value of a dress which was ruined, and $1,000.00 for her pain and suffering.

Her husband, the other plaintiff, sues for $14.00, the amount paid to a physician for treating his wife’s acid burns.

The case was tried before a jury which, strangely enough, returned a verdict for $39.00, "in favor of plaintiff and against defendant.” The trial judge rendered judgment accordingly. Plaintiffs complain that there should have been two judgments— one in favor of the husband for the amount paid to the attending physician, and one for $1,025.00, in favor of the wife, for her pain and suffering, and for the value of her dress.

There can be no doubt of the liability of the defendant for such losses and injuries as were sustained. It is true that a number of experts testified that carbolic acid is customarily used and handled in vials such as that .involved in this matter, but this will not excuse the defendant. The damage occurred not because of the kind of vial used, but because of the carelessness of the defendant in his manner of handling so dangerous an acid.

It is said that the defendant was not grossly careless and that he handled the acid as an ordinarily prudent man would handle it. We do not think so, nor do we think it would excuse him to show that he had handled it as an ordinarily prudent man would have, because he was required to do more than this. Ordinary care will not suffice in such a case. As a dentist constantly using carbolic acid, he knew the danger of burns resulting therefrom, and it was his duty to be extraordinarily careful in handling it.

The husband as head and master of the community, is entitled to recover such amounts as would compensate the community for the losses sustained by it. Among these losses is the cost of medical attention, which amounted to $14.00.

It seems, therefore, that the husband is entitled to a judgment for the $14.00 expended for medical attention.

We are at a loss to understand how the jury and how the trial judge failed to allow to Mrs Tricon compensation for her mental anguish and physical suffering and other similar items. It appears that the backs of both of her hands were badly burned and that a surface about four or six inclies square was badly burned on her left thigh. She was treated by Dr. Phillips, her physician, who applied bandages on four different days. She seems to have been confined to her bed for five days, and, for a considerable time after that was more or less incapacitated.

Taking into consideration all of the evidence with reference to her suffering and incapacity, we believe full justice will be done by allowing her for this the sum of $200.00.

As to the amount claimed by Mrs. Picheloup, as the value of the dress which was ruined, it is our opinion that she is entitled to this. She alleges in her petition that she was the owner of the dress, and in the absence of denial by the defendant we will assume that the dress belonged to her separately and formed no part of the community.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended, and that there now he judgment in favor of plaintiff, Oliver Julian Tricon, in the sum of fourteen dollars ($14.00), and in favor of the plaintiff, Mrs. Viola Picheloup, wife of Oliver Julian Tricon, in the sum of two hundred twenty-five dollars ($225.00), all costs to be paid by defendant and appellee.


text:
    No. 10,383
    Orleans
    MADISON LUMBER CO. v. BACHEMIN ET AL.
    (November 13, 1928. Opinion and Decree.)
    J. D. & M. L. Dresner, of New Orleans, attorneys for plaintiff, appellee.
    Milner & Porteous, and L. R. Hoover, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J. ad hoc.

Paul J. Bachemin, one of the defendants, was a contractor operating in and near this City. Fidelity & Deposit Company of Maryland, the other defendant, as surety, executed a statutory building bond on which Bachemin was principal, in connection with a building contract for the erection of certain structures for one Sam Fertel.

Bachemin, for sometime prior to the execution of the contract referred to, had been rather heavily indebted to the plaintiff.

He purchased certain materials and supplies from the plaintiff to the extent of $1,419.96, to be used in the construction of the Fertel Buildings.

The Fertel building contract was dated May 8, 1923. Shortly, thereafter, to-wit, on May 20, 1923, Bachemin commenced making payments to plaintiff, and from time to time made other payments, five in all, as follows:

May 20, 1923 ..................:_____________________________ $850
June 28, 1923 ____________________________________..____ 800
August 27, 1923 ______________________________________ 500
October 9, 1923__________________________________________ 500
December 31, 1923 ____________________________________ 500
$3150

The plaintiff received no verbal instructions from Bachemin as to the imputation of these payments, and, having no knowledge as to the source from which the funds were derived, imputed the payments, as was its right and duty, to the oldest accounts, and, as the oldest accounts absorbed practically all of the payments, there was little or nothing left to be paid on the purchases made for the Fertel job.

Defendants, particularly Fidelity & Deposit Company contend that plaintiff knew or ought to have known that the money used in making the above referred to payments, had come from Fertel, and that, therefore, plaintiff had no right to impute the payments to the oldest accounts; at least, until a sufficient amount had been imputed to the Fertel account to balance it. The payments were made to plaintiff by checks of Bachemin. He did not obtain checks from Fertel and endorse them over to plaintiff, but gave his own personal checks, on which there was no indication that the money had come from Fertel.

We readily concede that, if plaintiff had knowledge, or if from the circumstances surrounding; the transaction, plaintiff could be charged with knowledge as to the source of the funds in question, then it had no right to make" the imputations that it did make, and that to do so, would have amounted to a fraud on the surety.

We have, however, searched the record diligently for evidence showing such knowledge and have failed to find it. Defendant argues, that as Bachemin had made no payments on the old accounts for a long time, and that, as Bachemin was always behind in his payments, and apparently always made his payments on one job from money received from the next, and that as plaintiff was furnishing the materials for the Fertel job, it should have realized that Bachemin could have obtained funds from no other source and, that, therefore, the payments were being made with the funds paid Bachemin by Fertel.

The most we can say, is that, the fact that the payments were recommenced after the beginning of the new job, was a peculiar coincidence which may have created a suspicion of knowledge as to the source of the payments, but which, in our judgment, is not quite sufficient to shift the burden and to require the plaintiff to prove that it had no actual knowledge.

The funds may have been obtained from other sources; Bachemin may have inherited the money. It is presumed, that there was a profit for him in the Fertel contract and certainly he could have disposed of that profit as he wished.

We do not believe that there is a duty in a furnisher of supplies to inquire into the source from which payments made to him may have come. As between the furnisher of supplies and the Surety, we think that there is a greater duty in the Surety to obtain this information and to know the source of income of the contractor, and to see to it that proper imputations of payments are made.

We realize that surety companies, in situations such as existed here, are, of course, at a great disadvantage and unquestionably often suffer as a result of the imputation of payments to old accounts, in which they are not interested, instead of to fresh accounts in which they are vitally interested, but we see no remedy for .this situation unless there is knowledge in the furnisher of supplies of the source of the payments or unless under the circumstances he should be charged with such knowledge.

As this court said in Roca vs. Caruso, 7 Orl. App. 451:

“A furnisher of building materials, who knowingly receives from a contractor money earned under one contract, cannot impute such payment to any other account, even though older, as long as the debt incurred in connection with such contracts remains unpaid.”

It will be seen that knowledge in the furnisher of supplies is essential and where there is no knowledge the payment must be imputed to the oldest accounts.

This court also said in Jordy Bros. vs. Judlin, 9 Orleans App. 43:

“The ruling in Roca vs. Caruso, 7 Court of Appeal 451, is not to be extended beyond those cases where the furnisher of materials knows the origin of the funds paid to him by the contractor and has received no instructions to impute the payment to any particular account.”

In Grand Lodge Benevolent Knights of America vs. Murphy Construction Company, 152 La. 123, 92 So. 757, the Court, in discussing points identical with those raised in the' argument of this case, said:

“First of all, the contractor paid with his own check, drawn against his own bank account. Presumably he had something of his own, and was to make some profit even out of this very contract, which would all be his own, and with which he had not only the legal but even the moral right to do as he pleased; and, if there was either right or obligation on the part of any one to look into the statement of the contractor’s private affairs, it behooved his surety, as an interested party, to do so, rather than a creditor seeking simply to collect a past-due debt.”

We see no escape from the conclusion, | that the evidence fails to show that the plaintiff had knowledge that the funds were derived from the Fertel job, and- that, it also fails to show circumstances, which would justify us in holding that the plaintiff should have had such knowledge.

For these reasons the judgment appealed from is affirmed.


text:
    No. 10,489
    Orleans
    HUBER ET UX v. GORDY ET AL.
    (November 13, 1928. Opinion and Decree.)
    Wieiss, Yarrut & Stich, of New Orleans, attorneys for plaintiffs and appellees.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendants and appellants.
   JANVIER, Judge ad hoc.

Mr. and Mrs. J. A. Huber were the owners of a certain double dwelling at 2024 and 2026 Franklin Avenue in New Orleans. They decided to do certain remodeling and, for this purpose, employed one, of the defendants, M. B. Gordy, as contractor. The plans and specifications were accepted, the price was agreed upon and the contract was made. The contractor was required to furnish a bond and on this bond the Union Indemnity Company, the other defendant, was surety.

The plaintiffs contend that a number of items called for in the contract, were omitted, and that, they were required, at their own expense, to have these completed. They also contend that they were required to pay Abry Bros., house movers and raisers, $100.00 for the shoring of the building and that they paid this sum because when Gordy, the contractor, attempted to do the work, it was mutually agreed that he was not properly equipped to do it and that it would be for the benefit of all parties, that it be done by a well equipped house raising concern, the bill to be paid by the plaintiffs and charged to the defendants.

The sole question in controversy is whether or not the plaintiffs were justified or authorized in employing Abry Bros, and, thereafter, whether or not the $100.00 paid to Abry Bros, is due to plaintiffs by the contractor and his surety.

It will be readily seen that only questions of fact are involved. The evidence does not seem to preponderate either way. Mr. and Mrs. Huber testify that the defendant, Gordy, positively agreed that Abry Bros, should be employed and that he would be responsible for the bill. Gordy and his brother-in-law and another workman testify to the contrary. There are some circumstances which appear to us to be rather favorable to Gordy’s contention. For instance, Mr. and Mrs. Huber states that Gordy agreed to the employment of Abry Bros, without knowing what the bill would be. This is rather odd, because it seems that there were any number of controversies between the parties, and they were dealing, at that time, at arm’s length. Another thing, which we find a little bit difficult t'o understand, is why the trial judge should have rejected the plaintiffs’ demands on all other items and rendered judgment in their favor on the one remaining item.

Nevertheless, we do not believe that the record justifies us in reversing the findings of the trial judge. He saw and heard all of the witnesses and there must have been something in their manner of testifying or in their appearance when testifying, which justified him in believing that the plaintiffs were giving the true version of the affair.

For these reasons it is ordered, adjudged and decreed that the judgment' appealed from be affirmed.


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    No. 10,470
    Orleans
    AUBRY v. AMERICAN NATIONAL INSURANCE COMPANY
    (November 13, 1928. Opinion and Decree.)

      Legier, McEnerny & Waguespack, of New Orleans, attorney for plaintiff, appellee.
    Edward J. De Verges, of New Orleans, attorney for defendant, appellant.
   JANVIER, J. ad hoc.

Plaintiff sues defendant under a health and accident insurance policy for $241.67. He also asks for 100 per cent penalty for failure to settle and for reasonable attorneys’ fees' in accordance with Act 310 of 1910.

Plaintiff was a mail carrier and in the carrying out of his duties rode a bicycle. On October 1, 1924, plaintiff fell from this bicycle and hurt the back of his right hand. He called on a physician, who treated him and apparently his injury was considered slight by both the physician and himself. At any rate, he did not discontinue his work and it was not until November 17, 1924, nearly two months after the fall from the bicycle, that he became incapacitated. In the meantime he had called on a physician, two or three times, and his hand had been treated, but he had given no notice to his insurance company. On November 18, 1924, on both of his hands cists or ganglions developed, and, on the advice of a physician, he went to the Marine Hospital in New Orleans, where he became a patient and where he remained actually unable to work until May 27, 1925.

As to the extent and period of his disability there seems to be no dispute.

On November 24, 1924, some six days after he had gone to the hospital, and very nearly two months after his fall from his bicycle he notified his insurers of his disability and advised them that he was suffering from pains - in his hands and wrists occasioned by his duties as United States mail carrier.

It will be noted that he made no mention of his fall from his bicycle, and, in fact, his insurers knew nothing of this fall until the trial of the case.

The insurers investigated the case to some extent and commenced paying him periodically the amounts called for under the policy. When the sum of $75.00 had been paid him by the company, they came to the conclusion that he was suffering from a chronic disease. Under the terms of the policy disability resulting from chronic diseases entitles the assured to the amount specified for two months’ total disability and no more. For two months total disability he was entitled to be paid only $100.00, or $25.00 in addition to the amount already paid to him. The company thereupon tendered him this sum; but, as the check bore the notation that i.t was in full settlement he refused to accept it and brought this suit. On the trial of the case the plaintiff testified as to his fall from the bicycle and also stated that his occupation required him to constantly lift large and heavy packages and that this lifting was the cause of his condition. The defendant argues that if the plaintiff’s disability is a result of a chronic ailment, recovery should be limited to $100.00, and that on the other hand, if it is due to the fall from- the bicycle, inasmuch as no notice was given óf that accident until more than twenty days thereafter, plaintiff is precluded from bringing suit under the terms of the policy, one of the provisions of which reads as follows:

“Written notice of injury or of sickness on which claim may he based must be given to the Company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness. In event of accidental death, immediate notice thereof must be given to the Company.”

Let us take up the second defense first. It is true that no notice of the fall from the bicycle was given to _the company, and that the company knew nothing of it until the trial below. It seems, however, that neither the plaintiff nor his physician thought the accident was in any way serious. It is not now made certain by the evidence that his ultimate disability resulted from, or was, in fact, contributed to, by that injury. It would be a harsh doctrine indeed which would prevent recovery by one who, believing that an injury is trivial, continues to work and in utmost good faith fails to report such an accident to his insurance company. Particularly is this so where it appears that the defendant suffered no loss as a result of failure to receive notice.

Plaintiff was treated by competent physicians, and we dan conceive of nothing additional that the defendant would have done, had it received immediate advice of the happening of the accident.

In the defendant’s contention that the disability, for which recovery is claimed, resulted from a chronic disease, we can see no merit. What is or what is not a chronic disease is a question for medical men, and the record in this case contains many certificates of reputable .physicians, all of whom state that the disease or ailment, from which the plaintiff suffered, was not chronic.

Defendant makes much over the fact that in one of the certificates, the doctor who prepared it, in answer to the question “Chronic” wrote the letters “Ye,” apparently the first two letters of the word “Yes,” and then stopped, and in a bold hand, wrote the word “No.” Counsel for defendant argues that the handwriting in which the word “No,” is written, is different from the handwriting in the balance of the document. It does not appear to us to be different and we see no reason Why it should be, because the word “No” in this certificate would be consistent with the statement, contained in all other certificates, to the effect that the disease was not chronic. It, therefore, appears to us that the only significance to be given to the correction is rather against the defendant, because it shows conclusively, to our minds, that the doctor, who prepared the certificate gave careful consideration to the question and corrected himself, when he apparently was, in his hurry, about to give an incorrect answer.

Our conclusion is that the full amount claimed, under the policy, is due and that the defendant did not have reasonable grounds for refusing to make payment. At the time of its refusal, it must be remembered that it had no ' notice about the fall from the bicycle and that, therefore, it could not have based its refusal on its failure to receive notice. Its sole reason for refusing to make payment was its contention that the disease, from which plaintiff was suffering, was chronic, and we are unable to understand how the defendant could have been sincere in this contention, in view of the fact, that it had in its possession several certificates to the contrary.

We feel, however, that there may have been sufficient justification in its refusal to pay, to warrant us in not awarding the 100 per cent penalty, which we are authorized to award under Act 310 of 1910. We do believe, however, that a reasonable attorney’s fee should be granted, and fix this fee at $100.00.

Defendant suggests that we are not authorized, under the act referred to, to rllow a part of the penalty and not all, and that we may not allow an attorney’s fee unless we award the whole penalty. We do not so construe the act. It appears to us that its plain purpose was to allow a court, in its discretion, to award such reasonable penalty and such reasonable attorney’s fee, as might to it, seem proper but, in the case of the penalty not in excess of 100 per cent.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that there may now be judgment in favor of plaintiff and against defendant in the sum of $241.67 and in the further sum of $100.00 as attorneys’ fees. All costs to be paid by the defendant.


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    No. 10,368
    Orleans
    GLASER v. CAHILL
    (November 13, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    G. L. Warren Woodville, of New Orleans, attorney for plaintiff and appellee.
    Sol Weiss, of New Orleans, attorney for defendant and appellant.
   JONES, J.

This is a suit for five hundred sixty dollars ($560.00), with eight per cent (8%) interest, from various dates, and ten per cent (10%) attorney’s fees. This amount is claimed for eight months’ rent — from March 1, 1925, until October 1, 1925 — of a lower duplex apartment at No. 2632 Milan Street, this City. Attached to this petition is the lease with eight rent notes of seventy dollars ($70.00) each.

Defendant answered, admitting the lease and his signature on the notes, and the fact that he moved out of the premises on February 9, 1925, after paying the rent up to March 1; but averring that the apartment was uninhabitable on account of the excessive cold and dampness. In amplification of this defense allegations are made that the four children of defendant were made ill by cold and dampness; that the walls were reeking with moisture and the clothes and shoes of the entire family were frequently covered with mildew; that defendant’s piano was utterly ruined and his electric sewing machine injured by dampness; that the living room could not be used because it.contained no radiator; that excessive gas bills were rendered; that the lighting of the gas stove in the kitchen extinguished the radiators in the bedrooms; that defendant complained without result and was forced to abandon the apartment on account of the unbearable cold and dampness.

The trial judge, after hearing six witnesses for the defendant and six for the plaintiff, decided in favor of plaintiff.

As a careful review of the record convinces us that his decision is amply sustained, it would serve no useful purpose to analyze the voluminous testimony of the various witnesses on the subject. Though defendant introduced much evidence as to excessive dampness and cold, this is contradicted by the evidence of plaintiff, and defendant admits that he told plaintiff not to worry about his rent, as it would be paid, and that he carried the keys to a real estate agent to sub-lease the premises for him.

These admissions in themselves are persuasive of the correctness of the decision of the trial judge, for abrogation of leases is not favored in Louisiana except in extreme cases, where the burden of proof is clearly sustained.

Kling vs. Maloney, 7 Orl. App. 751.

Meyers & Bro. vs. W. H. Henderson, 49 La. Ann. 1547, 16 So. 729.

Dussau vs. Generis, 6 La. App. 279.

Denman vs. Lopez, 12 La. Ann. 823.

For these reasons the judgment is affirmed.


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    No. 10,913
    Orleans
    THIEMANN v. NATIONAL REFRIGERATOR & FIXTURE CO., INC.
    (October 29, 1928. Opinion and Decree.)

      F. S. Norman, of New Orleans, attorney for plaintiff, appellee.
    Dufour, Goldberg & Kammer, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J. ad hoc.

Frederick Thiemann, a young apprentice, working for the defendant company was injured as a result of being struck in the eye by a large knife belonging to the defendant company.

Thiemann’s duties were to assist other workmen, principally cabinet makers, and to bring them tools and materials when required to do so. On thé afternoon on which the accident happened, Thiemann was assisting a cabinet maker, named Frechou. Thiemann states that he understood Frechou to tell him to go get the shellac pot and the knife. The shellac pot was being used by another workman, named Kallenberg and the knife was sticking upright in a work bench along side the route which Thiemann had to travel in going for the shellac pot. As he reached the work bench in which the knife was sticking be grabbed for it apparently in too violent a manner with the result that thé knife was knocked from its upright • position to the bench from which it bounced up and hit Thiemann in the eye, resulting ultimately in the removal of the eye.

The defense is that Thiemann had not been told to get the knife, had never been allowed to use the knife, and that his grabbing for the knife constituted a wilful departure from his line of duty and that the resulting accident, therefore, did not arise out of his employment. The case of Pierre vs. Barringer, 149 La. 71, 88 So. 691, is relied upon by the defendant and is authority for the proposition that an employee, who voluntarily undertakes to do something that he is not bound to do, and which his duties do not require, and who in so doing, comes into contact with dangerous machinery or a dangerous implement which he is not allowed to use, is not injured in the course of his employment. We do not find it, however, necessary to determine whether or not the legal principle invoked by defendant is applicable to this case, because we believe that there is in the record sufficient evidence to justify us in finding that young Thiemann acted as he believed he was instructed to act. Defendant readily admits that if, Thiemann was instructed to get the knife or if he believed he was instructed to get the knife, even though he was not actually so instructed, he would be entitled to recover in compensation for injuries resulting from his attempt to get it, although, in doing so, he may have acted carelessly or playfully. The testimony of the boy, while it may be characterized as hesitating and slightly contradictory in unimportant details, nevertheless, is to the effect that he believed he was instructed to pick up the knife. It is true that Frechou states that he did not instruct him to get the knife but there is no dispute that there was a great deal of noise which might have prevented Thiemann from hearing perfectly what was said and furthermore it is very plain from the record that Frechou was either tongue-tied or talked in such low tones as could be barely understood. In fact, the trial Judge on two or more occasions had to caution him to speak louder as he could not be heard.

An attempt was made to show that no one in the employ of the company, except a man named Coates, had ever used the knife in question and that the knife was always kept in Mr. Coates’ office. In our opinion, the evidence does not conclusively show this, but on the contrary it appears that Frechou, himself, had used the knife on previous occasions, infrequent though they were, and it is beyond dispute that at the- time of the accident the knife was not in the office of Mr. Coates but was on the bench right along side of the place where the plaintiff had to pass.

For these reasons it does not appear to us that the defendant has shown conclusively that the plaintiff was not acting within the scope of his employment at the time of the accident, or, at least, that he was not doing what he thought his duties required.

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


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    No. 11,425
    Orleans
    THE FLEISCHMAN CO. v. SEELING
    (December 10, 1928. Opinion and Decree.)
    Henry A. Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
    James J. Landry, of New Orleans, attorney for plaintiff, appellee.
   JANVIER, J. ad hoc.

On April 23, 1927, at about 6:15 a. m., there was an automobile collision between the car driven by defendant and one driven by the chauffeur of plaintiff company. This accident occurred at the corner of Palmyra and Dupre Streets. Plaintiff’s truck had been parked on the lower right side of Palmyra Street, a short distance from and facing towards the corner of Dupre Street. Defendant was driving on Palmyra Street in the opposite direction and it was his intention to turn to the left into Dupre Street. Shortly before he reached the corner and when his automobile was probably fifteen or twenty feet from the corner, he turned from the right side of the street to the left side, and was just commencing to-make a left hand turn into Dupre Street when the two automobiles met in collision. Defendant admits that he had violated the ordinance and that he was making a short left hand turn instead of a long one and that he had crossed to the left side of the street at the time of the collision, but he contends that just before the collision he was temporarily blinded, by a flash of the early morning sun on his windshield, and that the driver of the other automobile had ample time to see that his car was in its path and to avoid him. In making this defense, Seeling must assume the burden of 'proving the contributory negligence of the other driver. He himself was in the wrong and he can escape liability only by showing that in spite of his negligence the accident could have been avoided had the other party to it exercised proper care and caution. We do not believe that he has successfully borne this burden. The other party was where he had a right to be, and so far as we can ascertain from the record, was driving with reasonable care and prudence. If Seeling had crossed to the wrong side of the street at any great distance from the scene of the accident, and if he had been driving in the path of plaintiff’s automobile for any great length of time, the situation, in our judgment, would be different. But the evidence leaves us of the opinion that he had crossed into that path only a very few feet before the collision, and we do not feel that, under the circumstances, plaintiff company’s driver can be held to have been negligent in no't stopping within this very short distance.

As to the damage sustained, we believe that the amount allowed by' the trial Judge will fully compensate plaintiff and is correct. As we read the evidence, the bill for labor and for making the repairs amounted to $38.00 and the bill for parts amounted to $20.00. This would make a total of $58.00. In addition to this, plaintiff company was required to rent another car for two and one-half days at $10.00 a day, so that on this item their loss amounted to $25.00.

There is some dispute as to whether the repairs which were made were all necessitated by the collision, but we believe the proof is fairly with plaintiff on this point.

For these reasons the judgment appealed from is affirmed.


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    No. 10,643
    Orleans
    GOODING v. BEAUREGARD LAUNDRY CO., INC.
    (October 29, 1928. Opinion and Decree.)
    H. Kenner, of New Orleans, attorney for plaintiff, appellant.
    E. Y. Parham, of New Orleans, attorney for defendant, appellee.
   JANVIER, J. ad hoc.

The plaintiff, an eighteen-year old colored boy was employed as a porter in the laundry of the defendant company. On account of an excess of work he was ordered by the foreman to report for work on Sunday, October 18, 1925. His duties were to clean up the premises and to carry bags of laundry and materials and supplies to various employees. His duties did not require him to come into contact with the laundry machinery. The testimony shows that on the day of the accident he had reported for work and had completed his usual duties as porter when he applied to the foreman for permission to leave. The foreman states that he refused him this permission as he thought he might need him for other incidental duties later. The boy states that he refused him permission to leave and instructed him to take charge of one of the centrifugal laundry machines. This the foreman denies.

It is very clear, from the evidence, that at no time prior to that day had he operated or even touched any of the laundry machines, with the consent or even with the knowledge of the foreman, except that on one occasion, some thirty days or so previously, he had attempted to operate one of them but had been seen by the foreman who instructed him to let it alone and not to touch the machinery at all.

At the time of the accident, the foreman had temporarily left the room in which the machine was located and a few minutes after he left, he was called and told that the boy’s arm had been caught in the mechanism.

The question presented is solely one of fact, that is, whether or not the boy had been instructed by the foreman to operate the machine. The boy says that he had, the foreman says that he had not. The foreman’s story is corroborated by the circumstances that he had prohibited the boy fro.m using it and had made him desist from using it- a short time before. The foreman’s story is also corroborated by the testimony of Emmet Jones, a relative of the plaintiff, who was placed on the stand as a witness for plaintiff, and who, instead of corroborating plaintiff’s story that he had been operating the machine for some time, on the contrary, stated that he, himself had operated it and had not seen the plaintiff touch it until the very moment of the accident. It appears to us, therefore, that the evidence conclusively provides that the plaintiff had stepped aside from his line of duty and was voluntarily meddling with dangerous machinery with which his employment had no connection whatever.

In order for plaintiff to recover under the compensation law (Act No. 20 of 1914 as amended) the injury must have occurred in the course of his employment and must have arisen out of his employment and it is perfectly plain that this injury did not arise out of his employment. The law of this case is set forth by the Supreme Court in Pierre vs. Barringer, 149 La. 71, 88 So 691. In that case, an employee in a sawmill had left his station of employment and had voluntarily gone into another part of the mill, and had attempted to operate a circular saw with which his employment had no connection whatever. The Court held that the resulting accident did not arise out of his employment. That seems to be the situation here.

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


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    No. 11,044
    Orleans
    COBB v. REBOUL
    (October 29, 1928. Opinion and Decree.)
    Printice Edrington, Jr., of New Orleans, attorney for plaintiff, appellee.
    J. S. Gautreaux, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, a licensed real estate broker, claims of the defendant the sum of one hundred thirty dollars, one-half of a commission earned on a sale of the property No. 305 South Olympia Street in this city during the month of January, 1927. Plaintiff sets forth that through the efforts of his office and one of his salesladies, Mrs. Eunice Flynt, he interested a Mrs. Julia Daiy in the ¡purchase of said property for sixty-five hundred dollars, and subsequently sold it; that the property was listed by the owner with the office of Walter Reboul, also a real estate agent; that at the passing of the act of sale, defendant promised to pay the amount claimed to plaintiff for services rendered.

The answer, after admitting that plaintiff produced the purchaser for the proplerty, states no deposit was made within the specified time, and defendant sold the property to a third person.

The question presented is ¡purely one of fact. The trial Judge, after hearing the witnesses, concluded that plaintiff had produced the purchaser and that he was entitled to one-half of this commission. Appellant has made no argument and has not favored us with a brief. A careful study of the testimony convinces us that there is no manifest error in this decision.

For above reasons the judgment is affirmed.