author: WESTERFIELD, J.

text:
    No. 9786.
    Orleans Appeal.
    WILLIAM MORGAN, ET AL., v. KATIE CUSIMANO AND JOSEPH FERRO, Appellants.
    (April 13, 1925, Opinion and Decree.)
    (April 27, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Landlord and Tenant —Par. 66, 69.
    A tenant who sublets a portion of the leased premises is answerable for damages suffered by his sub-lessee due to the failure to keep the premises in safe repair.
    2. Louisiana Digest — Landlord and Tenant ■ — Par. 59.
    The privilege conferred upon the lessee under Art. 2694 R. C. C. of causing repairs to be made to leased premises at the expense of lessor creates no obligation upon the lessee to make such repairs.
    Appeal from Civil District Court, Hon. William H. Byrnes, Judge.
    This is a suit for damages for personal injuries sustained by a child in a fall from a second story gallery. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Woodville & Woodville, attorneys for plaintiff and appellees.
    H. M. Ansley, attorney for defendant and appellants.
   WESTERFIELD, J.

William Morgan and Odeal Morgan, father and mother of the minor, Edward Morgan, sue Mrs. Katie Cusimano and Joseph Ferro in solido, claiming fifteen thousand dollars for personal injuries alleged to have been sustained by their said child as the result of a fall from the gallery of the second story of the premises No. 406 Burgundy Street, due, ■ it is alleged, to the defective material and rotten condition of the railings inclosing the said gallery. Plaintiffs were sub-tenants of Ferro and Mrs. Cusimano was alleged to be the owner of the premises and their responsibility for the accident based upon their obligation as owner and lessor, respectively under familiar provisions of the Code.

Upon the trial of the case it developed that Mrs. Cusimano was not the owner and there was judgment dismissing the suit as to her and in plaintiff’s favor for $500.00 as against Ferro.

Ferro has appealed. No amendment of the judgment in plaintiff’s favor is asked.

An exception of no cause of action was filed below based upon the contention that Ferro was under no obligation to keep the premises in repair and his failure to do so was not actionable for the reason that he was a tenant or lessee and that under Art. 2716 of the Civil Code the repairs which a lessee is required to make do not contemplate the railing or bannisters of a gallery. This argument completely ignores the fact that Ferro, while a lessee of the owner of the property, was also a lessor of plaintiffs. The exception was properly overruled.

The evidence shows that the child was standing on the gallery with a burning “sparkler”, a species of fireworks Which is held in the hand and emits stars of light as it burns. The child fell or leaned against the bannisters, which gave way under its weight and it fell to the pavement below. There is some testimony tending to show that the child leaned • through an opening in the bannisters, but it is not established. There is also testimony tending to prove that plaintiffs knew of the defective railing before their child met with the accident'. Defendant and another witness testify that Morgan, the child’s father, asked for a hammer, some nails and a •plank and was given these articles for the express purpose of repairing the. railing on bannisters surrounding the gallery. This the plaintiff, Morgan, denies, hut it is immaterial since even if he knew the gallery needed repairs • under the jurisprudence his action would not be prejudiced unless it is shown that he knew the bannisters were unsafe for the use of his five-year-old child. See Ciaccio vs. Carbajal, 145 La. 869, 83 South. 73.

Defendant also contends that the repairs should have been made by the lessee and taken out of the rent and failing so to do his action against the lessor is barred. Whatever may have been the former jurisprudence on this point it is now well settled that the right given the tenant under Art. 2694 R. C. C. to have repairs made at the expense of the lessor is a privilege conferred and not an obligation imposed upon the lessee. Boutte vs. N. O. Terminal Co., 139 La. 945, 72 South. 513; and Ciaccio vs. Carbajal, 145 La. 887, 83 South. 73.

There remains the question of quantum. The trial court 'allowed five hundred dollars. The child is said to have suffered a fracture of the base of the skull. The tentative diagnosis of the Charity Hospital physicians, to which institution the child was conveyed immediately after the accident, so describes the injury. There is considerable doubt in our minds as to the correctness of this preliminary diagnosis. Dr. Thibaut, testifying for defendant, says:

Q. What is the idea of the doctors in making a diagnosis as in this case, fracture of the skull, does that mean a probable or possible fracture?
A. That is probably a tentative diagnosis until further examination may prove or disprove the original diagnosis. In other words, we have the X-Ray and we have symptoms that may develop subsequently in brain condition that will corroborate or not the original diagnosis made.
Q. Was such a diagnosis made to figure in the treatment administered, in other words, if the diagnosis is wrong, and the injury instead of being a fracture of the skull was only a severe bruise, would the treatment for the more severe injury apply to the lessor injury?
A. Yes, sir.
Q. What would you say, that the patient’s injuries were serious or trivial?
A. I do not think that a real serious brain injury would have kept that boy only six days in the hospital and, according to the history, he was discharged on the 30th day of December, six days after he was admitted.

We think it extremely improbable that there was any permanent injury to the child. A witness testifies that he was seen playing around the yard six days after the accident. The X-Ray failed to disclose any abnormality and at the time of the trial the child was apparently normal. 'Under the circumstances we think $350.00 a proper allowance.

For the reasons assigned the judgment appealed from is amended so as to reduce the sum awarded plaintiffs to $350.00 and in all other respects it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 9807.
    Orleans Appeal.
    MR. AND MRS. HARRY THATCHER v. LEO SIMKIN, Appellant.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Animals—Par. 14, 15
    The owner of a dog is liable to the parents of a minor for damages caused by the dog in biting the minor when it appears that the dog had previously, to the knowledge of the owner, bitten another person and that the dog was permitted to roam at large, or sever an insecure leash, in a public park in violation of the rules of the park prohibiting the present of unleashed dogs.
    (Civil Code, Articles 2315 and 2321. Editor’s note.)
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    This is a suit for damages for personal injuries caused by a dog bite.
    Judgment for plaintiffs. Defendant, appealed.
    Judgment affirmed.

      J. H. Weiner, Sidney A.' Roos, attorneys for plaintiff and appellee.
    Woodville & Woodville, attorneys for defendant and appellant.
   WESTERFIELD, J.

Petitioners, father and mother, suing on behalf of their minor son, Herbert Thatcher, allege.

That on or about the 25th day of May, 1924, at about 6:30 a. m., your petitioners, in company with thfeir said minor son, Herbert, were going toward the tennis courts in Audubon Park, in this City, their said minor son being some little distance ahead of them, when, without warning, notice or provocation, he, Herbert Thatcher,, was set upon, thrown down, attacked,- bitten and seriously wounded by a large, vicious, ferocious, full-grown, powerful bull dog, without warning, notice or provocation, which Leo A. Simpkin, also of lawful age and a resident of this City, had with him in the park at that time, said dog having been brought to the park by the said Leo A. Simpkin, the dog being in his care, custody and control, and he being responsible for its actions; that the said Leo A. Simpkin knew that the dog was vicious, as this dog, to the absolute knowledge of the said Leo A. Simpkin, on or about the 11th day of October, 1923, had severely bitten and injured one Mrs. Ada Hernandez, in- this City, as shown by suit No. 150,607 of the docket of this Court, which is annexed hereto and made part hereof for greater certainty.”

Defendant admits ownership of th.e dog and that the dog bit the son of plaintiff substantially as alleged, but claims that the wound was trivial and that he (defendant) had no knowledge of vicious tendencies on the part of his dog.

There was judgment below for plaintiffs for $200.00 and defendant has appealed.

The evidence substantiates plaintiffs’ statement of the facts. The boy who was bitten was without fault and the dog was either unleashed at the time or succeeded in severing the leash or in pulling it out of his owner’s hand, and jumping upon the boy as he was running on one of the pathways in the park. The rules of Audubon Park prohibit the presence of dogs unléashed.

Counsel argues that defendant was without fault and that owners of domestic animals cannot be held liable for injuries caused by such animals unless it is shown that they (the owners) are guilty of some fault. He cites Martinez et al. vs. Bern-hard, 106 La. 369, 30 South. 901. This case states the well settled rule as counsel contends. We quote the following:

“The decisions of this court have always found that the owner was in some way at fault in cases in which damages were allowed. Montgomery vs. Koester, 35 La. Ann. 1091; McGuire vs. Ringrose, 41 La. Ann. 1029, 6 South. 895. In Delisle vs. Bourriague, 105 La. 84, 29 South. 731, the court said that there is no responsibility where there is no fault.”

On page 370 of the opinion the court says:

“While the least act of negligence should be enough to hold one liable who owns a dog, yet it must appear that there was some negligence, however slight.”

In the case at bar, the defendant knew that his dog had bitten Mrs. Fernandez. In fact, suit had been brought against him for damages because of that fact. The rules of the park prohibited the owners of dogs bringing them into the park untethered. A leash which fails to hold a dog is equivalent to no leash at all. An owner who permits a leash to slip from his hand fails to comply with the rules of the park which in stipulating that dogs should be in leash, of course, means effectively so.

We conclude that the defendant in this case was in fault and that he is liable for the damage caused by his dog to plaintiffs’ son. The amount awarded by the trial court does not seem to us excessive, consequently the judgment appealed from is for the reasons herein assigned affirmed.


author: CLAIBORNE, J.

text:
    No. 9896.
    Orleans Appeal.
    ALEXANDER GOUZIEN, Appellant, v. MRS. THERESA FERACI.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Negligence—Par. 27.
    The defense of contributory negligence will not avail the defendant if by reasonable care on his part the accident could have been avoided.
    2. Louisiana Digest — Negligence—Par. 29.
    The intoxicated condition of the plaintiff at the time of the accident does not take awáy his right of action but only accentuates the necessity for greater care on the part of the defendant.
    3. Louisiana Digest — Automobiles — Par. 4 (b).
    It is the duty of. a chauffeur on approaching a street crossing to have his machine under full control so that it may be stopped quickly in case of necessity. (Civil Code, Art. 2316. Editor’s Note.)
    Appeal from Civil District Court, Hon. H. C. Cage, Judge.
    The plaintiff alleges that he was knocked down by an automobile driven by the defendant and injured, and claims damages from her.
    Judgment for defendant. Plaintiff appealed.
    Judgment reversed.
    J. O. Chamberlain, attorney for plaintiff and appellant.
    Dufour, Goldberg, Krammer & Wolf, attorneys for defendant and appellee.
   CLAIBORNE, J.

The plaintiff alleges that he was knocked down by an automobile driven by the defendant and injured, and claims damages from her.

He alleges that on. January 26, 1924, at about 1:30 p. m. he was in the act of crossing the uptown side of Esplanade Avenue at the intersection of Decatur Street; that he was walking from the neutral ground to the sidewalk on the wood ■ side of Decatur Street; that he had nearly reached the sidewalk when an automobile driven by. defendant on Esplanade Avenue towards the river knocked him down and injured him; that his injuries consist of a sprained wrist and possible fracture of the forearm, cuts in the face, injury to the eye, and severe contusions of the body; that'he was incapacitated from work for twelve weeks; that he is a carpenter earning eight dollars a day; that the accident was caused by the negligence of the defendant and by her violation of the traffic ordinance, Section 2 of •Article 7 thereof, which reads as follows:

“At street intersections not under police signal control, pedestrians shall have right of way over vehicles, provided pedestrians shall give warning of their intention to cross the street by holding up their hand in the manner to be plainly seen.”

That his damage is as follows:

Doctor and medicines--------------------------$ 100.00

Loss of salary________________________________________ 600.00

Physical pains and mental anguish 2,700.00

$3,400.00

He further avers “that because of his poverty and want of means he is unable to pay the cost of this suit in. advance, or as they accrue nor to give bond for the same”; and he prays “for authority to litigate this suit without payment of costs and without furnishing bond for same.”

The defendant denied each allegation of plaintiff’s petition, but admits that plaintiff was injured at the time alleged and by defendant’s automobile.

She further averred that she was driving her car at about five or six miles an hour, on the south side of Esplanade Avenue towards the river at the rate of about five or six miles an hour; that on reaching the intersection of Decatur Street she saw some pedestrians on the neutral ground starting to cross Esplanade Avenue; that she blew her horn three times to indicate her approach; that all the pedestrians stopped with the exception of the plaintiff who continued diagonally across the street as if to make' the sidewalk at the river side of Decatur Street; that the plaintiff suddenly staggered to his right and thus placed himself directly in the path of defendant’s car and struck the left front fender of her car and was knocked down and away from the car; that the injury was due solely to plaintiff’s actions and from the fact that he was at the time intoxicated.

There was judgment for defendant and plaintiff has appealed.

The plaintiff testifies that he was standing on the neutral ground of Esplanade Street near Decatur talking to a friend; that he proceeded to cross Esplanade Street in a straight line, when at about five or six feet from the sidewalk he was knocked down by an automobile running on Esplanade Street towards the river.

His friend Hensen corroborates him; plaintiff was more than half way across the street when he was struck; the automobile carried him on the other side of Decatur Street a few feet from the sidewalk.

Mrs. Stipelovich, another witness, corroborates Hansen.- All the witnesses say they heard no horn.

The defendant gives another version. She says she left her house on St. Bernard Avenue and went to Esplanade and was going to her mother’s house on Decatur Street^and when she got near the corner of Decatur Street she saw some people on the neutral ground, and she saw they did not stop; she turned her car to the right, and as she did so a man staggered towards the Mint, and ran into her -right (left) fender and fell; when her fender struck him he was towards the river side of Decatur Street; she was going five or six miles an hour; at. that rate she could stop her car in about two feet; she had no time to stop her car; when she reached Decatur Street she saw plaintiff in the middle of Decatur Street and the middle of Esplanade Street walking towards the Mint, more on the river than on the lake side; there was a wagon on Decatur Street on the wood side near the intersection of Esplanade Street, and when she turned into Decatur Street she had to make a wider turn to get around the wagon; she was on Esplanade when she began to make the turn; if there had been no wagon on Decatur Street she would have turned as close to the corner as possible; when she saw the wagon she went more towards the river; she first saw the plaintiff when he was about five feet from her; the' plaintiff walked into the front of ler left fender as she was making the turn; she traveled about five fet while the man was upon the fender and he fell to the ground; the plaintiff was traveling from the. neutral ground on the lake side of Esplanade Avenue walking towards the river side of Decatur Street towards the sidewalk.

The defendant produced no witness to the accident.

Whether we adopt her theory of the accident or that of plaintiff and his two witnesses, the conclusion appears to us the same. It is true that it was daylight and that plaintiff coxxld and should have seen defendant’s automobile coming, and be testifies that he saw it. He might have been more cautious and thus have avoided the accident. But the same conditions prevailed as to the defendant. She testifies that she saw people on the neutral ground and when they did not stop, she turned to the right. A greater degree of care was expected from her because she was driving a dangerous machine. Albert vs. Munch, 114 La. 686, 75 South. 513; Alfred Hiller Co. vs. Insurance Co. of North America, 125 La. 944, 52 South. 104.

From her own testimony, she seems to have followed the plaintiff in his footsteps. First, when he stepped into Esplanade, then when he turned towards the river, and crossed diagonally, at the junction of Esplanade and Decatur Streets, until she reached him near the' sidewalk of Decatur on the river side.

He was certainly ahead of her, or at least upon her left side, and she was behind him. In that position, he could not see her but she could see him. It was her duty under all conditions, but specially at a street crossing, to look for pedestrians upon her path and to have her automobile under control. Duffy vs. Hickey, 151 La. 274-299, 91 South. 733; Carroll vs. New Orleans Ry. and Light Company, 125 La. 903, 51 South. 1029; Shields vs. Fairchild, 130 La. 648, 58 South. 497; Simpson vs. New Orleans and C. R. Light and Power Company, 112 La. 237, 36 South. 335.

She says herself she could have stopped in about two feet. ’Admitting that the plaintiff was negligent, the defendant had the last clear chance to avoid the accident and she did not do it. As was said in Burvant vs. Wolfe, 126 La. 787 (190), 52 South. 1023.

“Therefore, had the defendant been duly observant as any one using a death-dealing machine upon a public street is bound to be, he would have noticed that the course of the boy was convergent with his own, and that the .boy was not paying attention.” Reed vs. Sievers, 146 La. 391, 83 South. 685; Fernandez vs. Montz, 151 La. 302, 91 South 742; Hanna vs. New Orleans Ry. and Light Company, 126 La. 634, 52 South. 855; 155 Pac. 147, 9 Court of Appeal 351; Jones vs. Mackay Telegraph Cable Company, 137 La. 121, 68 South. 379; 156 Pac. 51.

The defendant urges that the plaintiff had been drinking just before the accident and that he was then drunk. There is no evidence that, at the time of the accident or before, he was under the influence of liquor. The evidence is to the contrary, although he had been indulging in two drinks. Symptoms of drunkenness developed only after the accident when he was brought to the hospital where he was put to bed and he cursed and shrieked and had” to be tied to his bed. But being drunk did not put him beyond the protection of the law. On the contrary, it placed him in the position of a child — or of those unable to take care of themselves and called for more caution on the part of others. Horsthemke vs. New Orleans Ry. and Light Company, 146 La. 932, 84 South. 210.

The doctrine of the last clear chance has been applied with great favor as to these. McClanahan vs. Vicksburg, S. and P. Ry. Company, 111 La. 781, 35 South. 902; Thomas McGuire vs. the Vicksburg, Shreveport and Pacific Railroad Company, 46 La. Ann. 1543, 16 South. 457.

The extent of plaintiff’s injury is stated by a physician for defendant to be a one-inch fracture of the left forearm, capable of knitting, under proper treatment, at the very maximum in eight weeks, after which the patient would have full use of his arm. He also had a small scar about a half-inch over the left eye. He remained in the hospital one day and then returned to his home.

While a physician for the plaintiff testifies that plaintiff suffered from a concussion of the brain and remained unconscious for twelve hours at the Charity Hospital, the evidence of the Hospital physician and the nurse is that the plaintiff was howling drunk when he reached the hospital, and that he woke up the next morning and went home in the cars with his wife.

Plaintiff testifies that he cannot use his hand in his business of carpenter, and that he has pains in his head and cannot sleep.

We do not find that his testimony is sufficient to establish these injuries.

There is no testimony whatever in support of the claim for. doctor and medicine.

Although he claims $600 for loss of salary he fails to testify that he was getting any salary. He says he was earning eight dollars a day, but does not say where nor from whom, and that he was jobbing for himself. His ability to have earned eight dollars a day every day during the twelve weeks following his accident was entirely uncertain. Judging the future from the past, it was speculative, as he sues under the pauper act.

For his pain and mental anguish and loss of work we shall allow Five Hundred Dollars.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that there be judgment condemning the defendant, Mrs. Theresa Feraci, wife of Joseph Feraci, to pay to the plaintiff Alexander Gouzien; Five Hundred Dollars with five per cent per annum interest from February 26, 1924; till paid and all costs of suit.


text:
    No. 9860.
    Orleans Appeal.
    THE M. FEITEL HOUSE WRECKING CO., INC., Appellant, v. CITIZENS BANK & TRUST CO. OF LA., ET AL.
    (April 13, 1925, Opinion and Decree.)
    (May 11, 1925, Rehearing Refused.)
    (Judgment Court of Appeal Affirmed by Supreme Court. 159 La. —, 106 South. 291.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Banks and Banking— Par. 47, 51.
    The payee of a check, whose endorsement has been made without its authority and payment made by the bank upon which it is drawn cannot maintain an action against the bank to recover the amount of the check. His remedy is ■ against the maker.
    2. Louisiana Digest — Banks and Banking — ■ Par. 47, 51.
    A bank which accepts for deposit ’ and credits its depositor with the amount of a check bearing the unauthorized endorsement of the payee is not liable to the payee for the amount of the check. The fact that the words “Endorsement guaranteed payment through New Orleans Clearing House” is stamped on the back of the check by the bank receiving same is immaterial since such words do not import an acceptance of the instrument.
    (Sections 21 and 23 of Act No. 64 of 1904. Editor’s note.)
    Appeal from Civil District Court, Hon. M. M. Boatner, Judge.
    This is a suit to recover money from two banks in solido for the payment of a draft to one not authorized to endorse or receive payment for plaintiff. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Arthur B. Leopold, attorney for plaintiff and appellant.
    Dufour, Goldberg & Kammer, attorneys for defendant and appellee.
    Merrick & Schwartz, attorneys for Canal-Commercial Trust & Savings Bank, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues the Citizens Bank & Trust Co. and the Canal-Commercial Trust & Savings Bank, alleging that the defendant banks are indebted to it, in solido, in the sum of $317.25 under the following circumstances.

That on or about February 15, 1922, the New Orleans & North Eastern Railroad drew in favor of petitioner its draft for $317.25 on the Canal Bank in payment of refund on freight covering shipment of materials from Chickasaw, Alabama, to New Orleans, then due and owing to petitioner, and delivered the said draft to the Merchants Railway Traffic Ass’n, Ltd., who acted as petitioner’s agent for the sole purpose of collection of said claim for refund, said draft being in the following words and figures, to-wit:

“New Orleans & Northeastern Railroad Company Station (No. 1826), N. O., La., Basin St. Station, 2/15, 1922. Pay to the order of M. FEITEL HOUSE WRECKING CO. Three Hundred & Seventeen 25/100 Dollars, $317.25, balance due for freight charges.
Drawn on the Assistant Treasurer, N. O. & N. E. R. R., Cincinnati, Ohio, payable through Canal Bank & Trust Co., of N. O., La.
Draft No. B428.
(Signed) G. T. WASHINGTON,
Agent.”

That thereafter, to-wit: on or about February 16, 1922, the Merchants Railway Traffic Ass’n, Ltd., by B. E. Slawter, President, wrote the name of petitioner on the back of said draft as its alleged and pretended agent, in the following words and figures, to-wit:

“MERCHANTS RAILWAY TRAFFIC ASSOCIATION, LTD.,
B. E. Slawter, Pres., Agent and Attorney in Fact for
M. FEITEL HOUSE WRECKING CO.”

and it did then and there deposit the same, to its account, in the Citizens Bank, for collection, which bank thereupon guaranteed the aforesaid endorsement of said Merchants Railway Trafile Ass’n, Ltd., by stamping on the back of said draft the following words and figures, viz.:

“Through New Orleans Clearing House, Endorsement guaranteed.
New Orleans, La., Feb. 16/22.”

It is further alleged that the Canal Bank paid the draft and that plaintiff was in ignorance of the collection and deposit of same by its agent who was'without authority to endorse the draft and that the Citizens Bank knew or ought to have known that plaintiff’s agent was unauthorized to endorse for it and that “by the acts and doings of said banks as aforesaid petitioner has sustained a loss of $317.25.”

Each defendant filed an exception of no cause of action and. from a judgment maintaining both exceptions plaintiff has appealed.

The basis of plaintiff’s action is the endorsement by the Citizens Bank which, it is argued, was negligent and actionable in tort for the reason that it afforded plaintiff’s agent an opportunity to defraud plaintiff. The bank should have made inquiry as to the authority of the endorser since the check was in plaintiff’s name and signed by the bank’s depositor by procuration, it is said. We are referred to the following provision of Sec. 21 of the Negotiable Instruments Law (Act 64 of 1904):

“A signature by • procuration Operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the limits of his authority.”

And to Sec. 23 also:

“Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under such signature unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.”

We are referred to oné or two Louisiana decisions which support the proposition that a payee could maintain an action against a drawer bank paying a forged check. Vanbibber vs. Bank, 14 La. Ann. 486; Gordon vs. Muchler, 34 La. Ann. 604. But in State ex rel. St. Amant vs. Bank of Commerce, 49 La. Ann. 1060, 22 South. 207, the contrary doctrine was announced.

The guarantee of the Citizens Bank of the endorsement by plaintiff’s agent inured to the benefit of the Canal Bank and protected it against the payment of the check to the Citizens Bank. But plaintiff has not been injured. As the payee of the check it was entitled to the money it called for and if payment was made by the Citizens Bank to its depositor and by the Canal Bank to the Citizens Bank upon a forged or unauthorized endorsement of a sum of money equivalent to the face of the check, the check has not Been paid nor has the drawer’s debt to plaintiff been discharged. The plaintiff has no right of action against either bank, for under the yery provision of the law quoted by plaintiff (Sections 21 and 23 of the Negotiable Instrument Act) the check belonging to plaintiff has not been discharged and the endorsment of plaintiff’s name “whose signature it purports to be is wholly inoperative and no right to retain the instrument or to give a discharge therefor or to enforce payment thereof can be acquired through or under such signature”. If the drawee bank accepts the check by certifying it or by other means .indicating that the drawer has funds to meet the check, the bank is then in the position of the drawer quo ad the holder and the holder may sue the bank.

Plaintiff contends that the guarantee of the Citizens Bank amounted to any acceptance under Section 189 of the Negotiable Instrument Law to the effect that a bank is not liable to the holder unless or until it accepts or certifies the check. We do not think so. This endorsement was no more than a statement of responsibility to the payee bank or others acquiring the check subsequently, and in due course by the Citizens Bank for the genuineness of its depositor’s endorsement.

The case of New York Produce Exchange Bank vs. Twelfth Ward Bank, 134 App. Div. 953, 118 N. Y. Supp. 1127, cited to us by counsel is not opposed to this view. In that case the bank upon which the check was drawn brought suit against another bank which had guaranteed the endorsements of a check which had been raised and the name of the payee changed ■ and the check deposited in the defendant bank in the substituted name. The court held the guarantee covered all the irregularities mentioned. But it was not a quit by the payee against the bank.

The rule is thus stated in Magee on Banks and Banking, 2nd Edition, p. 314:

“The weight of authority is that the payee of a check before it is accepted by the bank cannot maintain an action upon it against the latter as there is no privity of contract between them. The holder’s remedy is against the drawer. The bank’s liability, if any, is to the drawer.”

In First National Bank of Washington vs. Whitman, 94 U. S. 344, the court said:

“It is further contended that such an acceptance of the check creates a privity between the payee and the bank is established by the payment of the amount of this check in the manner described. This argument is based upon the erroneous assumption that the bank has paid this check. If this were true, it would have discharged all of its duty, and there would be an end of the claim against it. The bank supposed that it had paid the check; but this was an error. The money it paid was upon a pretended and not a real endorsement of the name of the payee. The real indorsement of the payee was as necessary to a valid payment as the real signature of the drawer; and in law the check remains unpaid. Its pretended payment did not diminish the funds of the drawer in the bank, or put money in the pocket of the person entitled to the payment. The state of the account was the same after the pretended payments as it was before.”

It is argued that we are not bound by the views expressed in other jurisdictions and that our special system of law suggests the application of different principles. We find no difficulty in approving the principles announced in the other jurisdictions to which we have referred and nothing inharmonious with the civil law or the Civil Code. Moreover, we are dealing with one of the several uniform laws adopted by our State and it is desirable that the construction given such laws be uniform. See Arbuthnot vs. Reicheimer, 139 La. 804,

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 9834.
    Orleans Appeal.
    HENRY A. TESTARD, Appellant, v. DANIEL WILLIAMS; A. S. HOWELL, Intervenor.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mandamus—Par. 14.
    Courts will condemn no one to do that which is inherently impossible, nor render a judgment the execution of which it cannot enforce.
    2. Louisiana Digest — Executory Process— Par. 62, 63.
    After the sheriff has seized the property of the defendant, there is no law which prevents the plaintiff and the defendant from selling the property in .the absence of an intervention from a third person.
    3. Louisiana Digest — Executory Process— Par. 62, 63; Sequestration — Par. 32.
    An intervention comes too late after the property seized has left the possession of the sheriff.
    4. Louisiana Digest — Mortgages—Par. 93; Pleading — Par. 18.
    No one can complain of a sale unless he alleges that it has caused him an in- . jury.
    Appeal from First City Court, Hon. Yal J. Stentz, Judge.
    This is a suit to compel the sheriff to advertise and sell an automobile seized by him. Judgment ordering sheriff to sell automobile. Sheriff appealed.
    Judgment against sheriff reversed and the rule taken by intervenor dismissed.
    Francis P. Burns, Woodville & Woodville, attorneys for plaintiff and appellee.
    J. A. Morales, for intervenor.
    W. O. Hart, attorney for Civil Sheriff, defendant and appellant.
   CLAIBORNE, J.

This is a suit to compel the sheriff to advertise and sell an automobile seized by him.

In May, 1921, Frank Scara sold to the defendant an automobile for the price of $398.95 in part payment of which he furnished two promissory notes aggregating $114, secured by vendor’s privilege and chattel mortgage; the plaintiff herein, Testard, acquired said notes, and in these proceedings, issued executory process against the defendant on January 17, 1922, for the sum of $114 with 8% per annum interest from May 23, 1921, till paid, and 20% attorney’s fees.

By virtue of the writ issued 'in that case the sheriff seized the automobile and turned it over to the plaintiff for safe keeping in his garage in order to avoid costs.

A few days afterwards, the defendant called upon the plaintiff and told him to sell the automobile; a few days later the plaintiff sold it for $150, which was an amount less than his claim; at that time he had not been advised of any claim against the car.

On May 9, 1923, over a year after the above proceedings, one Albert S. Howell filed an intervention in this suit. He averred that the car had been seized by the sheriff while in his possession for repairs; that his bill for repairs amounted to $284.90; that he filed wáh the sheriff a sworn statement of said repairs, which remains still due; and he prayed for judgment recognizing his privilege on the car, after payment of plaintiff’s claims.

The plaintiff answered claiming that intervenor’s privilege was inferior to his under Sec. 4 of Act 198 of 1918, p. 373.

On December 20, 1923, there was judgment in favor of intervenor against Williams for $284.90 with privilege, “subject to any prior lien in favor of Henry A. Testard, the plaintiff.”

On June 12, 1924, the intervenor Howell took a rule against the sheriff to show cause why the car seized by the sheriff should not be advertised and sold, and intervenor’s claim paid after liquidation of said balance due under said chattel mortgage.

This rule was made absolute on July 3, 1924.

At the time this rule was tried, the attorney for the sheriff admitted that the car was still in the possession of the sheriff. In this admission the attorney was mistaken, as the above facts show.

The trial judge stated that at the time he rendered the above judgment of July 3, 1924, he also was under the impression “that the car was still in the hands of the sheriff”.

The sheriff applied for a new trial of the above rule.

Howell resisted this application upon the ground that he was only seeking to enforce his lien from the proceeds of the sale “after plaintiff be paid'in full”.

The rule for a new trial was refused.

Prom the judgment of July 3, 1924, ordering the sale of the car by the sheriff, the sheriff has appealed.

The facts stated above are all admitted, as well as the priority of plaintiff’s privilege over the car or its proceeds.

There are three reasons why the judgment appealed from must be reversed:

1st. The first one is that the car is no longer in his possession nor in that of the plaintiff and that the judgment cannot be executed. Courts will condemn no one to do that which is inherently impossible nor render a judgment the execution of which it cannot enforce. Bassett vs. School Directors, 9 La. Ann. 513.

In State ex rel. Samory vs. City, 34 La. Ann. 469, the Court said on p. 473:

“It is a fundamental principle of the law of mandamus”, says Mr. High, “that the writ will never be granted in cases where, if issued, it would prove unavailing, and whenever it is apparent- to the Court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom it is invoked, or for other sufficient causes, the Court will refuse to interfere.” High on Ex. Rem. S. 14,, and authorities there cited. Affirmed in State vs. Mayor, Etc., of City of New Orleans, 49 La. Ann. 946, 22 South. 370; 100 La. 621-631; and State vs. Cavanac, 30 La. Ann. 237.

In Gaither vs. Green, 40 La. Ann. 362, 4 South. 210, the Court cites the same author: See 140, 141, as follows:

“The rule is well established that mandamus will never issue when it would be nugatory from want of power in the respondent to perform the act required.”

In State ex rel. Marr vs. Judge, 52 La. Ann. 1, 26 South. 812, the Court said:

“Where an order of mandamus, even if granted, could not be executed for the reason that at the time of its issuance there would be nothing then existing upon which it could be made to operate, the mandamus will be refused.” Affirming State ex rel. Romain vs. Board, 49 La. Ann. 578, 21 South. 731.

In the case of the U. S. vs. Boutwell, 84 U. S. 604, the Court said on p. 608:

“Therefore, whatever may be the rule elsewhere (in England) here a writ of mandamus must abate whenever the performance by defendant of the personal duty it seeks to enforce has become impossible.”

2nd. After the sheriff had seized the automobile and put it into the hands of the plaintiff, as keeper, the defendant authorized the plaintiff to sell it. The plaintiff sold it for a price below amount of his claim.

The transaction was legal and transferred a title to the third purchaser free from any claims. The intervenor filed a statement of his claim with the sheriff alone, not with the plaintiff who was ignorant of it. The intervenor mistook his remedy. He should have done then, what he did more than a year afterwards, file an intervention under Article C. P. 401, and notify both the plaintiff and the sheriff.

An intervention comes too late after the property seized has left the possession of the sheriff, 27 La. Ann. 239; Carroll & Co. vs. Bridewell; or after the sale and distribution of the price. 27 La. Ann. 160; Dameron & Co. vs. Eaton & Barstom.

3rd. But intervenor is not asserting a privilege superior to the plaintiff; he admits that his claim is inferior in rank to that of plaintiff. The auto sold for $150 only; an amount insufficient to pay plaintiff’s claim in capital, interest and attorney’s fees, not including the costs of suit. It is not alleged that the auto was worth more, or could have been sold for more.

A sale will not be set aside unless the complainant shows that it has caused him injury. 1 H. D. 641, No. 18; 31 La. Ann. 839; New Orleans Insurance Association vs. LaBranche.

It is therefore ordered that the judgment herein rendered against the sheriff on July 3, 1924, be reversed and set aside; and it is now ordered that the rule herein taken on June 12, 1924, by intervenor, Albert S. Howell, against the sheriff, and the plaintiff herein, Henry A. Testard, be dismissed at the cost of intervenor.


text:
    No. 9967.
    Orleans Appeal.
    MRS. ADOLPH J. MUNCH v. CENTRAL LAUNDRY CO., LTD., Appellant.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Marriage—Par. 154.
    Clothing of the wife paid for by the husband belongs to the community.
    (Civil Code, Art. 2402. Editor’s note.)
    2. Louisiana Digest — Marriage—Par. 265.
    The husband alone can sue for damage to community property and the wife though authorized by her husband cannot maintain a- suit upon a community debt.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from First City Court, Hon. W. Alexander Bahns, Judge.
    This is a suit for damages to a dress ruined by a laundry.
    Defendant filed an exception of no cause of action which was overruled.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed.
    Dart & Dart, Louis C. Guidry, attorneys for plaintiff and appellee.
    B. Y. Wolf, attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff, a married woman, brings this suit against defendant, a local laundry company, for the sum of $225.00,' alleging that a dress belonging to her- and valued at this amount was ruined by defendant, the dress having been sent to defendant to be dry cleaned.

Defendant filed an exception of no cause or right of action and at the same time, following the practice of the First City Court, answered denying liability.

There was judgment for plaintiff in the sum of $200.00 and defendant has appealed.

The exception of no cause or right of action was based upon the contention that the dress was community property and any damage to it could only be claimed by the husband as head and master thereof and upon the further contention that plaintiff had failed to allege that the dress, When given to defendant for cleaning, was in good condition.

Upon the trial' of the case Mr. Munch was asked by the court whether he had authorized his wife to bring the suit and, over objection of defendant’s counsel, he replied in the affirmative. Mr. Munch also testified that he had paid for the dress.

Two questions are presented by this exception: 1st. Is the clothing of the wife when paid for by the husband the property of the community? 2nd. Can the wife, when authorized by the husband in the manner as was done in this case maintain an action for a community debt?

In the case of Shields vs. F. Johnson & Co., 132 La. 774, 61 South. 787, the court held, in referring to an exception of no cause of action:

“This exception is aimed, in part, at those items of damages set forth in the petition for doctor bills, nurse bills, drug bills, clothing and hospital ambulance service connected with the injury alleged by plaintiff.”
“These are expenses of the community for which the husband is responsible and he alone can recover therefor. As the case is to be remanded, it is unnecessary now to dispose of this point, beyond sustaining the exception to those items in the wife’s original petition.”

Whatever may have been the effect of the husband’s testimony to the effect that he authorized his wife to bring the suit it can do no more than supply the omission of such allegation in the petition and the absence of his signature thereto for that purpose. But the wife, even though authorized by the husband, cannot sue for a debt due the community.

In the case of Mitchel vs. Dixie Ice Co., Inc., 157. La. 383, 102 South. 497, the court said:

“In suits for damages for injuries suffered by the community this court has never held that the mere assent of the husband is sufficient, or that the wife alone can judicially vindicate the rights of the community. There is a uniform and unbroken line of decisions to the contrary, all holding that in suits of this character the wife is not competent to stand in judgment and that the suit must be brought in the name of the husband.
“Williams vs. Pope Mfg. Co., 52 La. 1427, 27 So. 851; 50 L. R. A. 816; 78 Am. State Rep. 390, and authorities therein cited.”

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the exception of no cause or right of action filed herein by defendant be maintained and plaintiff’s suit dismissed.


author: BELL, J.

text:
    No. 9084
    Orleans Appeal
    NATHAN LEPOW & SONS v. ESPIR S. HAIK & BROS., Appellants
    (November 2, 1925, Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Estoppel—Par. 37, 38, 39, 40.
    Where a purchaser of various shipments of merchandise admits in writing the receipt and delivery of the goods in exact amount and prices as ’ shown in the original invoices, he is estopped when sued for the contract price to plead delay in shipments or that- color assortments were not as ordered.
    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    This is a suit for the price of merchandise delivered. There was judgment for plaintiff as prayed for and defendants' appealed.
    Judgment affirmed.

      Sol Weis and J. B. Cocke, of New Orleans, attorneys for plaintiff, appellee.
    Gerald Netter, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiffs, a commercial firm domiciled in the City of New York, sued defendants, a co-partnership doing business in New Orleans, for $1,125.26, the amount representing the value of certain wholesale lots of silk waists, as per. invoices made part of plaintiffs’ petition. The defendants admit the purchase of the goods, as described m the invoices, and that the terms and prices therein set forth are correct. The whole defense is found in the second paragraph of defendants’ answer, which is as follows:

“Defendants admit having purchased the goods in question, but denies that said goods were in kind and character the goods ordered or the prices specified, and further alleges and aver that said goods were shipped too late; defendants further say that the color assortments was not correct, and that the order for said goods was cancelled, for reasons above stated, as well as for the reason that said goods were not shipped in time.”

There was judgment as prayed for, and defendants have appealed.

The claim in this case arises from two orders for silk waists. On February 18, 1920, plaintiffs’ salesman called on defendants at New Orleans and sold them a bill of goods for one hundred dozen whists at $7.50 per dozen. Twenty dozen of these were shipped within a week after the order was received in New York, and twenty-two dozen more were shipped during a period of ten days thereafter. The balance of the order was subsequently can-celled with plaintiffs’ consent. Defendants have admitted their indebtedness for the shirt waists shipped under this order, and the price therefor is admitted to be the sum of $350.00. On May 10, 1920, defendants ordered by letter “twenty or thirty dozen shirt waists in every color but black”. Under this second order, it appears from the record that forty dozen ordered at $15.00 per dozen, were shipped on May 18, 1920, and ten dozen more at $14.00 per dozen were shipped on June 24, 1920. While the prices of these goods do not seem to have been agreed upon prior to shipment, and while more shirt whists appear to have been sent than were ordered, the. defendants did not, at any time, protest as to the number shipped. Not until July 17, 1920, was there any objection made to the price of these goods constituting the second order, nor to the price of the twenty-two dozen shipped under the first order. On the day mentioned, defendants wrote plaintiffs as follows:

“In regard to all the merchandise we have purchased from you in the line of waist, we are enclosing you an itemized invoice of all the shipment received, and the prices, which we are fully entitled to.
“Gentlemen, you are fully aware that this merchandise has dropped to a considerable point, and beg to state that we are unable to handle same under the prices you have billed us.
“We have a great deal of this stock undistributed for the above reason, and we kindly ask you to give the enclosed invoice your immediate attention, and let us hear from you by return mail as to what steps you are willing to undergo.
“The prices we are enclosing you, we think we will be able to handle the waist, so if this proves to be satisfactory to you, then kindly send us a correct invoice as enclosed, or enclose us the allowance for the differences in the prices.
“We regret to state these complaints, but we are sure if this is satisfactory to us it will meet with more than your approval.”

Enclosed with the letter, as above quoted, was a list which defendants' styled as an “invoice”, and in which they committed themselves to the exact quantity of goods which had been received and to prices which they would be willing to pay under conditions of a falling market. This document reads as follows:

No.Inv. Gros. Doz.

2/25 20 Ladies waist @ $15.00 $300.00

2/26 1 " " 15.00 15.00

3/9 1/3 " " 15.00 5.00

1/6 2/3 " " 15.00 10.00

5/18 40 " " 14.00 560.00

6/24 10 " " 14.00 140.00

$1030.00

On July 20, 1920, plaintiffs answered defendants’ letter of July 17, expressing surprise at the request for reduction in price, whereupon a second letter was written by defendants, under date of July 23, 1920, reading in part, as follows:

“Our letter to you of the 17th inst., states sufficient understanding, as to how this merchandise stands with us. In other words we are unable to handle this class of goods, under the price you billed us, our customers are asking for a reduction in the prices or'they will return them.”

'Plaintiffs finally wrote, on July 26, refusing any reduction in prices as invoiced by them, and demanding payment of the bill as due. Four other amicable demands for payment were made by letters written weekly during the month of August, 1920.

On August 28, defendants sent plaintiffs a check for $595.00, with the inscription on the face thereof, “In full of our account”. This check was promptly returned by plaintiffs, and correspondence was apparently suspended until October 20, 1920, When defendants again requested a reduction of the bill, and wrote in part, as follows:

“The whole history of the case is that you are trying to force on us goods at a certain price which has took a downward turn since buying, and which you are unable to sell to anyone. else at present.”

In none of defendants’ letters which we find in the record does it appear that any complaint was registered against the kind or character of the goods shipped, or against their color assortment, nor does it appear that any of the goods now sued for were not shipped in time. Objections of the nature just noted are ■ shown to have been registered only as a matter of defense after suit was filed. Defendants’ letter of July 17, and the list enclosed therein, establish clear estoppel . against the defenses urged in this suit. Defendants’ record admissions show an amount in dispute of only $95.56, and there is nothing before us which would justify a reduction of the judgment as rendered. Gall Cure Collar Pad Company vs. Louis P. Rice and Company, No. 8657, Orl. App.

It is therefore ordered that the judgment appealed from be affirmed at defendants’ cost in both courts.


author: ELLIOTT, J.

text:
    No. 7330
    First Circuit Appeal
    E. K. BREEDEN, ET AL., v. J. L. LEE, ET AL.
    (April 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Servitude—Par. 22.
    In locating an unimportant servitude of of way 30 feet wide across adjoining land, the court will use discretion so as to do as little damage to the land as possible.
    2. Louisiana Digest — Costs and Fees— Par. 8.
    When the result of the suit is that plaintiffs are .required by the court to take a right of way in the place tendered them before the suit was filed and re-offered on the trial and by plaintiffs, each time refused, the costs should be paid by the plaintiffs.
    Appeal from the Twenty-second Judicial District, .parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.

      This is a suit to recover a servitude of way 30 feet wide to be used as a road. There was judgment for plaintiff of a servitude previously tendered by defendants and plaintiffs appealed.
    Judgment affirmed except as to costs which were reversed.
    Kernan & Wall, of Baton Rouge, attorneys for plaintiff, appellant.
    H. K. Strickland, of Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

E. K. Breeden and F. A. Breeden, owners and possessors jointly of 180 acres of land in headright 48 T. 5 S. R. 2 E., acquired by them from R. K. Breeden, April 19, 1917, brought suit for the use and benefit of their tract of land, against John L. Lee and W. W. Noble to recover of said Lee and said Noble, a servitude of way, 30 feet' wide, to be used as a road over the land of said Lee and that of said Noble, leading from the residence of R. K. Breeden on plaintiffs’ said tract land to the public road from Pride to Indian Mound and from thence to Baton Rouge.

The direction and location of the desired road over the land of said Lee and that of said Noble is traced on map made by T. W. Young, C. E. and filed in the record. The desired location will pass over only a very small part of the land belonging to said Noble and will be very little detriment to his property and in his answer and testimony he' is willing for plaintiffs to have the road in the place desired; but it is very different with Lee. The plan or map made by T. W. Young, and the evidence shows that the road, if located in the place desired by plaintiffs, will divide the tract of land belonging to him containing 40 acres into about two equal parts and the evidence shows that if located in the place desired by the plaintiffs this 40 acres belonging to Lee will be rendered unservicable for a pasture and of very little value for any purpose.

The evidence shows that some years ago, R. K. Breeden former owner of the land now belonging to plaintiffs and for the use and benefit of which the road is desired; without objection on the part of the former owners of the tract now belonging to. Lee, cut out a road from his residence to the public road. The road now desired in this suit and plaintiffs have improved it and now wish to have it made a permanent road for the use of their estate. But R. K. Breeden and former owners of plantiffs tract of land before this road was opened which plaintiffs desire; used a way in order to reach their estate, around the lower end of the tract of land now belonging to Lee and running in a general course very much like the course which the evidence shows Lee offered to the plaintiffs before they instituted suit and which they declined then and again declined on the trial of the case.

The evidence shows that nothing prevents plaintiffs from now following the course followed before the road now desired was cut out, and which will not hurt nor impair the value of the tract of land belonging to Lee, the only thing to be said against it and in favor of the road desired by the plaintiffs, is that the road claimed in the suit by plaintiffs is the most direct and shortest road from R. K. Breeden’s residence to the public road in question, and is already open and can be easier kept up and maintained; but difference in length is not great enough to justify the court in holding that plaintiffs are entitled to the location desired by them in this suit, and the expense it will be to plaintiffs to open, construct and maintain the road in the place offered them by said Lee is not of sufficient importance to justify the court, in view of the great harm and inconvenience to the tract of land belonging to Lee that the location will be that plaintiffs desire; in granting their desire for a location across the middle of his tract C. C. Arts. 700 and 771.

The district judge properly rejected plaintiffs’ demand for a road over the land of said Lee in the place claimed by plaintiffs and very correctly ordered that they have a right of way along the lower end of the land of said Lee and of said Noble, to the public road as fixed in his judgment.

The judgment appealed from is correct in that respect and must be affirmed, but the district judge condemned Lee to pay the cost of the suit.

The evidence shows that Lee offered to plaintiffs a way over his land at the place designated by the court before plaintiffs instituted suit and through his counsel offered it to them again on the trial, but plaintiffs decliend in both instances to accept it and insisted on a road through the middle of his tract. We notice in the answer of said Lee a prayer, in the event plaintiffs are granted a right of way over his land, that it be at the place designated by the court and which plaintiffs refused.

Lee should not therefore be compelled to pay to the cost of the suit, when the result of the suit is that plaintiffs are required by the court to take a right of way in the place tendered them before the suit was filed and re-offered on the trial and by plaintiffs each time refused. Under the circumstances the cost should be paid by the plaintiffs.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed in all respects except as to the party who must pay the cost; in that regard, the judgment appealed from is annulled and reversed and it is now ordered that the cost of both courts be taxed against the plaintiffs, E. K. Breeden and F. A. Breeden.


author: LECHE, J.

text:
    No. -
    First Circuit Appeal
    FRED PARKER, PROPRIETOR, ETC., v. BATON ROUGE ELEC. AND MACHINE WORKS
    (April 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    .1. Louisiana Digest — Appeal—Par. 625.
    The finding of the district court on a matter of fact being clearly correct is affirmed.
    Appeal from the parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit to recover the balance due on an electric sign sold and delivered. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Kernan & Wall, of Baton Rouge, attorneys for plaintiff, appellee.
    C. A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Plaintiff’s suit is based upon a claim for one hundred and thirty-nine 42/100 dollars, representing a balance on the purchase price together with transportation charges, of an electric sign sold and delivered to defendant. The defense is that the sign was not made according to the specifications in the contract of sale. The district court rendered 'judgment in favor of plaintiff as prayed for and defendant has appealed.

The case is submitted to this court upon the record without brief or argument.

The evidenc in the record consists of the testimony of three witnesses who testified under commission, in behalf of plaintiff. That testimony seems to support the demand of plaintiff and finding no error in the judgment appealed from, we believe it should be affirmed and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    BATON ROUGE SASH AND DOOR WORKS, INC., v. A. DECUIR, ET AL.
    (April 3, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mechanic’s Privileges —Par. 45.
    The surety on a building contract bond cannot use as a defense when sued on the bond by the furnishers of materials, that, substantial changes in the contract between the owner and contractor or material men has released him.
    2. Louisiana Digest — Mechanic's Privileges —Par. 53, 55.
    The surety on a building contract bond cannot be subrogated . to the claims of the material men against the owner where he is called upon to pay.
    Appeal from the Parish of East Baton Rouge, Hon. W Carruth Johes, Judge.
    This is a suit to recover the costs of materials used in -a building from the owner and surety.
    There was judgment for plaintiff and against the owner and surety.
    The surety, a defendant, appealed.
    Judgment affirmed.
    R. G. Beale, of Baton Rouge, attorney for plaintiff, appellee.
    Dewey J. Sanchez, Taylor & Porter, C. A. Holcombe, C. C. Bird and Justin C. Daspit, all of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The question in this case involves the liability of a surety on the bond of a building contractor.

Mrs. Ella W. Key entered into a contract With Anthony Decuir, whereby the latter bound himself to build and erect a raised cottage for Mrs. Key in consideration of the sum of $4672.00, to be paid in installments at specified times. Decuir furnished bond for the performance of the contract in the sum of $2338.00 with Joseph N. Nolan as surety. The building was erected and it was finally accepted by Mrs. Key.

The present proceeding was instituted in due time by plaintiff, a furnisher of materials, and therein it prays that certain holders of other recorded liens be made parties, that its lien and privilege be recognized, and that it recover judgment against Mrs. Key for whatever balance she may hold as dire to the contractor, and judgment for the balance of its claim in full against Decuir, the contractor, and “Nolan, his surety. Plaintiff has, in other words, provoked a concursus wherein all persons having any interest have been made parties. The judgment of the District Court is in favor of plaintiff and of' the other furnishers of material, and the present appeal was taken by Nolan, surety on Decuir’s bond.

There is no controversy over the regularity and legality of the present proceeding, nor as to the amounts due the material men nor as to the existence of the privilege securing the same; the sole question at issue in this court is whether the surety, Nolan, has, by the acts of Mrs. Key, been released from his obligation as surety. Such a defense as against the demands of the furnishers of material is untenable under the law as construed by the Supreme in the case of First National Bank of Alexandria vs. Hudson Construction Co., 156 La. 355, 100 South. 451, where it was held that the surety cannot escape liability on the ground that a substantial change has been made in the contract as between the owner and the contractor, (the ground pleaded in the present case, as releasing the surety). The obligation of the surety is there held to be statutory and the surety deprived of any defense not pleaaable by his principal, the contractor.

The defendant surety, however, prays in the alternative, and in case the defense which he pleads against the furnishers of material' should not prevail, that he then be subrogated to the claims of the latter and that he be given judgment against the owner for the full amount he might be condemned to pay to such furnishers of material.

This alternative demand of the surety is presented with great earnestness and seems to be supported by equitable reasons and by judicial authority from other juris-' dictions. But the same question was also passed upon in the cited case of the First National Bank of Alexandria and was decided adversely to the contention of the surety, and this court is bound to follow the la was construed by the Supreme Court. See also U. S. Fidelity and Guaranty Co. vs. D’Angelo, 150 La. 188, 90 South. 564.

The Legislature has itself so construed its own statute for, by Act 230, p. 450, of 1924, the provision in the previous statutes restricting the surety only to such defenses as could be pleaded by the contractor as against the owner was changed and amended, but that law as thus amended cannot be applied to the present case for the reason that the contract and bond in this case were entered into in July, 1922, long before the passage of the amendatory statute of 1924.

We therefore believe that the judgment appealed from is in conformity with the facts and the law governing this case and should be affirmed, and it is so ordered.


text:
    No. 8860.
    Orleans Appeal.
    ARTHUR J. ADKINS, Appellant, v. NEW ORLEANS RAILWAY & LIGHT CO., ET AL.
    (April 27, 1925, Opinion and Decree.)
    (June 22, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 59, 60.
    In a tort action, plaintiff must prove with reasonable certainty a specific act of negligence charged in his petition; failing so to do, a judgment of the trial court, by which conflicting evidence has been resolved in favor of the defendant, will be affirmed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit to recover damages brought by one who was injured in falling from a street car. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Fred. G. Yeith, attorney for plaintiff and appellant.
    Dart, Kernan & Dart, attorneys for defendant and appellee.
   BELL, J.

Plaintiff, who was injured in falling from a street ear of the defendant railway company, has sued the company and its bondsman, the National Surety Company, in damages. There was a judgment dismissing both defendants and plaintiff has appealed. There does not appear from the record that plaintiff offered or produced any evidence to sustain his demand against the National Surety Company, and hence as to this defendant, the judgment appealed from must in aily event be affirmed, in accordance with the ruling of this court, made in the case of Gardner vs. O’Keefe et al., No. 9057 of the docket of this court, affirmed by the Supreme Co.urt on writ of review. Gardiner vs. O’Keefe, 155 La. 447, 99 South. 398.

The. petition alleges that plaintiff, while a passenger on a street ear operated hy the New Orleans Railway and Light Company, was violently pushed from the rear platform of this defendant’s car by the conductor of the car, who was attempting, in the performance of his duty, to follow two other passengers who had created a disturbance while riding on the car, and who were making their escape therefrom; that plaintiff was in no manner connected with the altercation or disturbance which had arisen between the conductor and the two other passengers; that, as a result of the accident, plaintiff suffered a fracture of the tibia of- the left leg, was confined to his home for several weeks and incapacitated for work in his trade as barber for over four months, and suffered great bodily pain and mental anguish. For these injuries and for loss of time and doctor bills, he claims the sum of $5,000.00.

The defendant railway company answered by denying generally the allegations of fault and of damages, or that it was liable on the bond of its surety, made co-defendant, and averred that the passenger who was on the platform and who gave his name as that of the plaintiff, was knocked from the platform by two other colored passengers, who hastily left the car. The answer of the National Surety Company was to the same effect.

The sole allegation of fault or negligence charged in the petition is that the conductor violently pushed plaintiff off the platform of the car. The only evidence to this effect is the testimony of the plaintiff and his colored friend, named Brown, who was also a passenger on the car.

Adkins, the plaintiff herein, testified that he boarded the Louisiana Avenue car at Gravier and Rampart Streets, together with two men, who subsequently caused the disturbance; that the conductor and a policeman rushed through the car to “hold” (meaning to arrest) the two passengers who. were causing the disturbance. He further says that while so rushing through the car “they” knocked him off and the policeman jumped down and “throwed a gun” on him, telling him at the same time to take his hand out of his pocket. He finally says that he was thrown off by the conductor in the middle of Melpomene Street; that before he was thrown off, at the intersection of Melpomene and South Franklin Streets, the two disturbers had already jumped off in the middle of the block of Franklin Street, between Thalia and Melpomene, and that these two men did this as soon as they saw the policeman and the conductor coming through the car; that the car was very crowded, and the conductor started at Erato Street (two blocks below Melpomene) to go to the front of the car for the policeman; that he, plaintiff, was standing all the while on the back platform of the car, on the right side of the 4door or entrance to the body of the car as the car moved uptown- and while he was facing; or looking in that direction; that he was a foot or two from the edge of the platform, standing between the edge of the platform and the door; that his back was towards the step of the car; that he was holding the handle of the car-door, and that when the disturbers came towards him with a rush, he let go of the handle and “got back” to give them a chance to get off. After making this clear and positive statement, this witness then qualifies his remarks by saying that he never had to get out of their way, for they were always on the platform with him and behind him and between him and the step, but that he turned loose his hold and stepped back to let the policeman and the conductor pass, when the conductor, who was ahead of the policeman, knocked him off.

Brown, the other witness for plaintiff, testifies that he was standing on the car', not on the platform, but on the side or edge of the rear door leading to the platform; that two other men, referred to in Adkins’ testimony, were having a discussion with the conductor on the hack of the car; that the conductor went forward into the car to get a policeman, who was in front on the . motorman’s platform, and while the conductor and policeman were returning to the rear platform, these two disturbers jumped off about the middle of the block, that is, between Thalia and Melpomene Streets. This witness swears that while the “motorman” (meaning evidently the conductor) and the policeman were rushing and grabbing at the two colored fellows, “they” shoved plaintiff off the car. He finally swears that only the conductor shoved plaintiff off and that the policeman was right behind ■ the conductor. If this witness' testimony be true, then plaintiff is bound to have been knocked off in the middle of the block, for he swears that it was while the conductor and policeman were grabbing at the disturbers, that plaintiff was knocked from the platform. A.-,preponderance of evidence establishes the ■ fact that plaintiff fell or was knocked from the car at the intersection of Franklin and Melpomene Streets. Other portions of this witness’ testimony is found to be equally unreliable and contradictory, and we are unable to give any weight to his evidence.

The material witnesses for the defendant railway company were William Croawell, a white man, passenger on the car, George Burd, the motorman, and police officers Kolb and Shannon.

Croawell testified that he lived on Melpomene, near the scene of the accident, between Franklin and Liberty Streets, and that he had been riding on the front of the car, with the motorman, Policeman Kolb and a friend; that he jumped off the front of the car at Melpomene and South Franklin Streets, while it was in motion, and walked towards the end of the moving car as it was 'about to come to a stop at the uptown lake corner, opposite or in front of a bakery shop; that just at the moment of his reaching the rear of the car, he saw the disturbers shove plaintiff off the car; that plaintiff fell right on the culvert in front of witness. He further testifies that when the car came to a full stop, the policeman, conductor and motorman all came up beside him, and that he called Policeman Kolb’s attention to the disturbers, who were running down Frank-line Street, on the lake side of that street; that he, witness, did not know plaintiff before the accident, but knew Brown, who had pressed his clothes, and that Brown seemed to him to have jumped off the car right after the accident; that he first saw plaintiff standing on the car step just before he was pushed off by the fleeing negroes, and that the car was near the end of the culvert when plaintiff fell off, and that the car had to go about fiftéen or twenty feet further before it came to a stop at the uptown lake corner, beyond the upper roadway of Melpomene Street.

Officer Kolb testifies that he was on the front of the car, and that when asked by the conductor, while the car was between Thalia and Melpomene Streets, to come to the rear and help quiet the disturbers, he, witness, proceeded ahead of the conductor, towards the end of the car. He further swears that when he got to the end, the car had stopped, and that he then noticed two men running down Franklin Street, and that, with his gun in his hand, he chased them for a short distance, some five or ten feet, but seeing he could not catch them, he returned to where plaintiff was lying on the culvert, and where he had first noticed plaintiff when he jumped off the car to run after the disturbers. He says the car had passed the Melpomene culvert and that plaintiff must have been lying about two or three feet from the car. He makes several different statements as to just where the car had stopped. His first statement is that it had passed the Melpomene culvert, and .then he says it was pretty nearly on the upper crossing by the bakery shop, and finally he says: “I guess the rear end of the car was stopped right in the center of the Melpomene culvert.”

Officer Shannon says that he did not see the accident; that he was in the act of going into the bakery shop on the upper lake corner to use the telephone; that he saw the car stop, and noticed a crowd, he walked over there and saw the plaintiff lying on the Melpomene culvert, in the middle of the street; that he spoke to plaintiff, who said that his leg was hurt, and then ordered Officer Kolb to telephone for the ambulance. This witness first says he thinks the rear of the car, after it had come to a stop, was very near the culvert on the uptown side. He then says that the car had cleared the culvert and the roadway on the uptown side of the culvert before it stopped. This latter statement squares with Croawell’s testimony as to where the car had finally stopped. This witness further testifies that he does not know how plaintiff fell; that the motorman, conductor and policeman were all outside of the car and around the injured man when witness got to where plaintiff was lying, and' that he heard “they say that two men knocked plaintiff off the car and ran up the street”.

There is a statement dictated in the record by counsel for the railways company that the conductor of the car, who was not produced as a witness, was in Denver, Colorado, at the time of the trial.

Motorman Burd testifies that he did .not see the accident; that just as his car was approaching Melpomene Street, the conductor came to the front and asked him to come to the rear and help him, as there was some disturbance on the back platform; that he told the conductor to take the police officer, who was on the front platform, and that when the officer and conductor started back through the car, he, the motorman, threw off the power and slammed on the brakes and jumped off the front end of the car; that he then saw plaintiff lying in the middle of the street, that is, on the culvert, or, as he termed it, “the neutr.al ground”. This witness is consistent and positive in his statement that his car stopped somewhere between the Melpomene culvert and the regular stopping place, and that the rear end of his car was a few feet short of where it would ordinarily have stopped. He finally says that the car was well crowded, and that plaintiff, after the accident, must have been lying more than ten feet from the rear of his car, because the back end of his car was stopped just a few feet on the lower side of the crossing or roadway. There is evidence going to show that the conductor had refused to issue transfers to the two colored men who fled from the car, for the reasop it was after midnight, at an hour when transfers are not given, under the rules of the company. His refusal resulted in abuse from these and another colored passenger, causing the disturbance which the conductor attempted to quell by calling on the motorman and Officer Kolb for assistance. There is nothing in the record to show that the conductor was the aggressor or that he failed to do or perform any of the duties encumbent upon him as employee.

From our appreciation of the evidence as detailed above, we are unable to conclude that plaintiff has established with any certainty whatever, the act of negligence charged in his petition, to the effect that he was pushed or thrown from the car by the conductor. On the contrary, we are forced to believe, as did doubtlessly the trial judge, that plaintiff was pushed from the rear platform by the disturbers, who did not • flee from the car while it was in the middle of the block, but at a point near the corner at which the car finally came to a stop. We are also of the opinion that a preponderance of evidence is' to the effect that the policeman preceded the conductor in going to the rear of the car, and that the plaintiff had already fallen off before the policeman had left the car. Under these conditions, it is impossible to conclude that it was the conductor who pushed the plaintiff off the rear platform.

In Wagner vs. New Orleans Ry. & L. Co., No. 8698 of the docket of this court, the act of negligence charged was that the conductor had pushed the plaintiff off of the car, as in the instant case, and for lack of evidence in the cited case, as in this one, judgment was rendered for defendant.

A carrier is not liable for injuries sustained by a passenger from rudeness, crowding or jostling of another, nor from injuries due to the negligent or wilful act of another, unless the carrier or its agents or employees are given an opportunity to prevent it. It has also been frequently held that a passenger who was pushed from the step by another passenger could not recover under the contention that the carrier was negligent in permitting the car to become crowded. Authorities in support of these rulings are as follows: Fanizzi vs. N. Y. & Q. C. Ry. Co., 99 N. Y. S. 281; Wood vs. Pa. R. T. Co., 104 Atl. 69; Eaton vs. N. Y. & N. H. & H. R. Co., 116 N. E. 815; McGilvary vs. Boston El. Rd., 108 N. E. 116; Marr vs. Boston & M. Rd. Co., 94 N. E. 692.

It was held in the case of Va. Ry. & P. Co. vs. McDemmich, 86 N. E. 744, that the carrier was not liable in a street car fracas on the theory that the action of the fellow-passenger was unexpected and the employee of the company unable to afford protection to plaintiff.

There are only issues of fact involved in this case. Plaintiff has failed to meet the burden imposed on him to prove, with reasonable certainty, the allegations of his petition. On the other hand, defendant’s theory of the accident appears to us to be supported by a preponderance of evidence, justifying the judgment of the trial court.

It is, therefore, ordered, adjudged and decreed that the judgment herein appealed from be and the same is hereby affirmed at plaintiff’s costs in both courts.


text:
    No. 9037.
    Orleans Appeal.
    EDMUND HARRIES, Appellant, v. RICHARD J. COURCIER, ET AL.
    (April 27, 1925, Opinion and Decree.)
    (May 11, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62, 71, 114.
    Where there is ambiguity as to the real intention of the parties to a written contract sued upon and made part of the petition, exception of no cause of action plainly directed to insufficiency of allegations in pleading, should not be maintained, so as to put an end to the controversy.
    Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    This is a suit on a promissory note coupled with a sequestration of a motor truck. Defendant filed an exception of no cause of • action, which was sustained. Plaintiff appealed,
    Judgment reversed and case remanded.
    Lemle, Moreno & Lemle, attorneys for plaintiff and appellant.
    Dart, Kernan & Dart, Leo. L. Dubourg, attorneys for defendant and appellee.
   BELL, J.

Defendants, Richard I. Courcier and Albert D. Courcier, on December 9, 1920, purchased from Nola Motor Co., Inc., an “Indiana” Truck, for the price of $3,346.17, by act of sale and chattel mortgage. In said act the consideration for said sale is set forth as follows:

“This sale is made and accepted for and in consideration of the price and sum of $3,346.17, which the said purchasers have paid unto the said vendor in the manner following, to-'wit: Note of the purchasers dated this day to their own order and by them endorsed payable 60 days after date for $659.72, int. at 8% from date, to be paid 'out of sale of their International Truck and in- addition Cash the sum of One Hundred Seventy-six and 82/100 Dollars ($176.82), for which the vendor hereby acknowledges receipt and grants acquittance and discharge; and for the balance of the purchase price, to-wit: $2,509.63, the said purchasers have made and subscribed twelve (12) certain promissory notes, all dated this day, payable to their own order and by them endorsed in solido, bearing interest at the rate of eight per cent. (8%) per annum from date until paid, payable at the place of business of said purchasers at Marrero, La., amounts and maturities as follows, to-wit: * * *”

Then follows the dates of maturities of the twelve notes, beginning January 10, 1921, and ending December 10, 1921. Immediately following this are the security clauses' usually contained in acts of mortgage.

On December 30, 1922, plaintiff instituted-this suit on the note of $659.72, alleging a balance due thereon of $285.59, interest and 25% attorney’s fees. Art. II of the petition reads as follows:

“That in the said act of sale and chattel mortgage it was stipulated that the said note should be paid out of the sale of a certain International truck, which was the property of said Richard J. Courcier and Albert D. Courcier, or of one of them; that the said- Richard J. Courcier and Albert D. Courcier delivered the said International truck into the possession of the Nola Motor Company, Inc., to. be sold to ■ satisfy the said note, any difference that there might be between the sale price and the face of the note to be returned • to the said Richard J. Courcier and Albert D. Courcier; that the Nola Motor Company, Inc., was unable to find a purchaser ior the said International truck-who would pay the minimum price which the said Richard J. Courcier and Albert D. Courcier stipu-' lated should be received therefor; and that the said Richard J. Courcier and Albert D. Courcier thereupon took the said International truck back into their possession, thus. .depriving the Nola Motor Company,' Inc.,. . and your petitioner, who succeeded to its' rights in the premises, from being paid out, 'cif the same; that your petitioner has no 'knowledge of the dispósition or' whereabouts ■ of the said International truck.”

The prayer of the petition is for recognition of plaintiff’s mortgage, and payment of his claim out of the proceeds of tne truck by preference, coupled with a prayer for a writ of sequestration. The writ issued upon plaintiff furnishing bond for $500.00, and the Indiana truck was seized.

Defendant filed a rule to dissolve the sequestration and an exception of no cause of action, which exception was maintained by the lower court, and plaintiff’s suit dismissed.

It was stated in argument and appears on brief of counsel for appellant (not contradicted by opposing counsel) that the verbal reasons for judgment assigned by the judge a quo on dismissing this suit Oil exception of no cause of action, was that the stipulation in the act to the effect that the notes sued upon should be paid out of the sale of the International Truck, meant that it should be paid only out of the sale of that truck, and that since it was not alleged that the' truck had been sold, plaintiff’s petition did not state a cause of action.

We are not able to agree with our learned brother of the District Court in this view of the case. The language of that clause of the act which is first-above quoted, is not free from ambiguity as to the real intent of the parties. Considering the clause from its four corners, it is to be first noted that the total purchase price of the truck was 3,346.17, from which amount, after deducting the face value of the note now sued upon and the amount' -of the cash portion paid at the execution of the act, their remains a balance ($2,509.63), one-twelfth of which balance formed the basis for face values given each of the other twelve notes involved in the transaction. The note itself was a sixty-day -note, maturing February 7, 1921, before- ány of the other twelve notes matured," except that note due oh January 10, 1921. From these facts,' might it not be'- within the bounds of reasonable conjecture or interpretation —leading later, by competent evidence, to judicial conviction — that notwithstanding the words “note * * * to be paid out of the sale of their International truck”, it was the intention of the parties, if the note was not paid by such method, it should nevertheless always form part of the total purchase price agreed upon and should be always secured, as shown on its face and in the act of mortgage, by the truck itself, whether such truck be in custody of the mortgagee or mortgagor?

The other allegations of the petition, taken, for purposes of the exception, to be true, and whereby a course of dealings between the parties is set up in respect to defendants having repossessed themselves of the truck and of having thereafter paid the greater portion of the note, are facts, in the light of which the ambiguous clauses of the act may be considered clear and certain, after such facts, as alleged, shall have been duly proven and established'.

We are of the opinion that where there is ambiguity as to the real intention of the parties to a written contract sued upon and made part of the petition, that the exception of no cause of action, which Is plainly directed to the insufficiency of allegations in the petition, should not be maintained so as to put an end to the controversy. Reiman Mfg. Co. vs. Vasquez et al., 9 Orl. App. 262; Goldsmith vs. Virgin, 122 La. 831, 48 South. 279.

For these reasons, we conclude that the ends of justice demand that this case be tried upon its merits.

For the reasons assigned, the judgment of the District Court is annulled and set aside; the exception of no cause of action is' overruled, and this case is remanded to the said court to be decided upon its merits, defendants to pay costs of this appeal, and all other costs to await final judgment.


text:
    No. 8687.
    Orleans Appeal.
    SUCCESSION OF R. MOORE ON RULE AGAINST PETER J. FLANAGAN, Appellee.
    (April 27, 1925, Opinion and Decree.)
    (May 25, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Executors and Administrators — Par. 346.
    A rule is the proper proceeding against an administrator to compel him to account for and produce the succession assets that came into his possession while administrator, even though his term of ' .office has expired.
    2. Louisiana Digest — Executors and Administrators — Par. 116.
    The Court that appointed him is the only one that has jurisdiction over him in such a ease.
    3. Louisiana Digest — Pleading—Par. 62.
    In filing an exception of no cause of action the better practice is to allege in what particular the petition sets forth no cause of action.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    Judgment that ruled was not the proper proceeding against the administrator to compel an accounting.
    Judgment reversed and case remanded.
    M. D. Dimitry, attorney for J. Flanagan, administrator and appellee.
    Jas. 'Wilkinson, attorney for Board of Commissioners.
    Purnell M. Milner, attorney for Louisiana Contracting Co.
    Monroe & Lemann, attorneys for Mrs. Hattie B. Moore, executrix and appellant.
    Loys Charbonnet, attorney for Jas. A. Robin, Public Admin.
   CLAIBORNE, J.

Rittenhouse Moore died in New Orleans on July 3, 1916; Peter J. Flanagan, Public Administrator, was appointed administrator of his succession on August 8, 1916. On October 4, 1916, he filed a provisional account upon the dehit side of which he placed the following items: “Future costs, $250”. The account showed:

Cash on hand.............. $13,760.00

Debts, including the item of future costs ............. 7,044.65

Leaving a balance of__________________________ $6,715.35 '

On May 9, 1917, Flanagan, Administrator, filed a second provisional account. The first item on said account is as follows:

“Balance on hand as per first provisional account ....... ..$6,715.35

Liabilities (3 items) .......................... 627.50

Balance on hand............................$6,087.85

This account was homologated May 23, 1917.

No evidence was offered to prove the correctness of any particular item on either the first or second account except the testimony of the attorney for the Administrator that the accounts had been prepared under his direction and were true and correct.

On June 15, 1917, Zimmern filed suit claiming $2,378.82 from the succession.

Meanwhile Hattie B. Moore was appointed executrix of the testament of the deceased Rittenhouse Moore by the Probate Court of Mobile, Alabama, the domicile of the deceased, and by order of Court herein rendered on August 17, 1917, Flanagan, Administrator, was ordered to pay over to her $3,087.85 out of the funds in his hands, retaining $3,000 to meet Zimmern’s claims.

Flanagan’s term of office as Public Administrator expired on March 5, 1918, and James A. Robin was appointed Public Administrator as his successor. By order of Court rendered March 27, 1918, right or wrong, he was also appointed administrator of this succession with the consent of Flanagan’s attorney.

On October 21, 1919, Robin, Administrator, Hattie B. Moore, Executrix, and Zimmern agreed upon the payment of $500 to Zimmern in payment of his claim and upon the payment of $2,500 to Mrs. Hattie B. Moore, Executrix, being the balance remaining of the $3,000 retained by Flanagan, Administrator.

By an order of Court rendered October 23, .1919, Robin, Public Administrator, was authorized to pay out of the balance of $200 “reserved for future costs herein” to Robin $66.66, to his attorney $66.66, and to the attorneys for Mrs. Moore $66.66, in part payment of their fees.

N. B. There seems to have , been some confusion about the amount reserved for future costs. The record says “$250” and the above pleadings mention “$200”. It would appear from the above order that .only $50 remained unaccounted for.

On March 21, 1922, Mrs. Hattie B. Moore, Executrix, took a rule upon Peter J. Flanagan, in which she suggested' that she was entitled to have an accounting from him of the disbursements made out of said balance of $250 reserved by him for future costs according to his first provisional account of October 4, 1916, and to have paid to her the balance remaining after deducting all proper disbursements therefrom.

Flanagan excepted to the rule on three grounds:

1st. That the rule was not the proper proceeding, that it should have been by petition and citation.

This objection is answered by the Succession of Heffner, 49 La. Ann. 1443, 22 South. 380, where it was held that a rule was the proper proceeding to compel an executor under a testament annulled by judgment to produce all the succession assets which had come into his hands while acting as executor. Succession of Katie Townsend, 37 La. Ann. 405.

2nd. That the rule shows no cause of action. The exception does not disclose in what particular the rule shows no cause of action. This practice has been justly criticized in Avis vs. Arkansas Southern R. Company, 117 La. 324, 41 South. 587. In argument it has been stated that there is - no -allegation that Mrs. Moore has been recognized as executrix under the laws of’ Louisiana. Her letters from the Alabama Court are in the record. But defendant in 'his answer to the rule has - not denied her capacity, and from the record it appears that her capacity has been judicially recognized by the Court and by- Flanagan himself in these proceedings.

3rd. It has also been urged in argument that the matter- urged in the rule should have been the subject of a separate suit and should have been allotted under the law and the rules of Court.

C. P. 997 provides that:

“The Judges of the Courts of Probate who have appointed persons administering successions, alone have the power of compelling them to account and pay over what they may be found to owe.”

Sec. 9 of Rule VIII of the Civil District - Court provides that proceedings not in their nature original but growing out of proceedings previously pending shall not be docketed as separate suits but shall be treated as parts of original suits. Pironi vs. Riley, 39 La. Ann. 302, 1 South. 675.

Besides defendant did not make the objection before the District Court. See Pironi vs. Riley, 39 La. Ann. 302, 1 South. 675.

It is therefore ordered that the judgment herein be reversed and set aside and that the pause be remanded to be proceeded with, on its merits; the costs of appeal to be paid by Peter J. Flanagan and the costs of the District Court to await the final determination of this case.