text:
    No. 11,080
    Orleans
    REICKE v. BLAND
    (November 28, 1927. Opinion and Decree.)

      (Syllabus hy the Court)
    1. Louisiana Digest — Builders and Buildings — Par. 14, 17.
    A contractor may recover the value of work done by him though it be unfinished or defective.
    Appeal from First City Court. Hon. W. A. Bahns, Judge.
    Action by Henry S. Reicke against E. J. Bland, appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. L. Bordelon, of New Orleans, attorney for plaintiff, appellee.
    Lucia & Provensal, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims judgment on four promissory notes, each for $50.

The defendant admitted his signature to the notes but denied liability thereon for want of “proper consideration”. Further answering, defendant averred that on July 29th, 1925, he purchased from the plaintiff certain fixtures according to estimate; that plaintiff agreed to furnish in defendant’s store certain fixtures including “new vitrolite panels in doors of soda back bar”, and to “take down present fixtures and haul them to new location and erect them as per plan”; that the estimate furnished amounted to $1050, of which he paid $300 on delivery, and the balance, $750, he furnished eight notes of $93.75 each; that after reducing the amount of said notes to $550, by mutual consent defendant furnished eleven notes each for $50; that he paid all of said eleven notes with the exception of the four notes presently sued upon; that plaintiff failed to furnish the fixtures agreed upon; that instead of furnishing “new vitrolite panels in doors of soda back bar” according to estimate, plaintiff furnished ordinary glass doors painted white; that plaintiff promised to replace said glass panels but has failed to do so; that in removing the fixtures plaintiff’s workmen broke one large glass mirror of the value of $50, which plaintiff promised to replace; that under said promises defendant signed the eight original and the eleven subsequent notes; “that he is, therefore, entitled to withhold payment of contract in full until such time as plaintiff makes proper delivery of all items included in estimate herein referred to”, and that he “is entitled to a new mirror or the price thereof which respondent hereby fixes at the sum of $50”; respondent avers further that as the notes signed by him were to cover in full the estimate furnished by plaintiff, that failure of plaintiff to deliver and install all fixtures as shown in said estimate leaves the said notes signed by respondent without full and due consideration, thereby making said notes null and void until agreement (is) carried out in full by plaintiff”.

There was judgment for plaintiff and defendant has appealed.

The defendant is in error as to his conclusions.

“The jurisprudence of this state is that a contractor who has delivered his work to the owner may sue him when he has received it and is in the enjoyment of it; and that the contractor may recover the value of the work which has enured to the benefit of the owner, although the work be defective or unfinished; if a price has been agreed upon, the remedy of the owner is a reduction thereof to an amount necessary to perfect or to complete the work according to contract.” Babst vs. Peritz, No. 7548 Orleans Appeal; Industrial Homestead vs. Junker, No. 7402 Orl. App.; Berns vs. Reiss, 12 Orl. App. 126; 1 H. D. 807 No. 25; Succession of Kerry vs. Freed Realty Co., 6 La. App. 437.

The difference in value between the vitrolite and the glass was ten dollars. The testimony is that the defendant consented to the change until vitrolite could be procured; but that he never insisted on the change until this suit was filed. This was too late. But plaintiff consents to allow this reduction.

There is no testimony whatever concerning the mirror. „

The judgment is therefore affirmed, with the reduction of ten dollars, defendant to pay all costs.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,477
    Orleans
    HOTARD, ET AL., v. PERILLOUX
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Damages—Par. 1, 8.
    Damages from the violation of rights will be presumed and allowed without the necessity of proving them.
    Appeal from the Twenty-fourth Judicial District Court, Parish of St. John the Baptist. Hon. L. Robert Rivarde, Judge.
    Action by Noe Hotard et al. against Andre T. Perilloux.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    L. W. Cockfield, of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for alleged violation by defendant of a right of drainage in favor of plaintiffs.

The six plaintiffs allege that in March, 1909, Arthur and Andre Floremond Borne sold to three of the petitioners a tract of land situated in the Parish of St. John the Baptist, being the batture portion belonging to said vendors extending from the river to the public road; the vendors reserved the right to install at the river pumps for the purpose of irrigation through the existing canal from the river to their remaining rear portion of property; the right of drainage of the batture sold through the above canal was also reserved in favor of the purchasers; that by subsequent sales a portion of said batture was acquired by plaintiffs and all the property in the rear, from the public road to a depth of 80 arpents, was acquired by defendant, A. T. Perilloux, by titles expressly specifying all the above servitudes; that by said acquisition it became the contractual duty of said defendant to keep in good’ order the above mentioned irrigation canal all the way to the swamp, all of which the said defendant has failed to do; that in the suit of Noe Hotard and others, No. 733 of the District Court of St. John the Baptist', the servitude of drainage was recognized in favor of plaintiffs, and the defendant was condemned to maintain the irrigation canal above mentioned; which judgment was affirmed by the Court of Appeal on May 28th, 1923; that in violation of said acts of purchase and of said judgment, and of plaintiffs’ rights of natural servitudes established by law, defendant has refused to permit plaintiffs to clean said canal, in consequence whereof plaintiffs’ property has been covered with water, flooded, and made unfit to inhabit or cultivate after heavy rains; and they have suffered damage to the extent of $2395.25 for loss of crops and chickens, and personal discomfort resulting from dampness and injury to their fences and houses.

The defendant excepted that the petition disclosed “no just or legal cause or right of action”, and pleaded the prescription of one year.

The court maintained the exception of no cause or right of action and dismissed plaintiffs’ suit. Plaintiffs have appealed.

The allegations of the petition, which must be taken as true, and the law, are both against the correctness of the judgment. Under the contract the right of drainage in favor of the batture sold over the lands in the rear was specially reserved. Under the law, C. C. 660 (656), “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude”.

Art. 772 (768): “He to whom a servitude is due has a right to make all the works necessary to use and preserve the same.” Orleans Nav. Co. vs. Mayor of New Orleans, 2 M. 214.

The allegations of the petition are that the defendant refused to allow the plaintiffs to clean the canal so as to permit the drainage to continue. Default was therefore unnecessary. Camors vs. Madden, 36 La. Ann. 425.

But all the questions involved in this suit are alleged to have been decided in the suit No. 733 in which some of the plaintiffs here were plaintiffs there. The rights of those plaintiffs were adjudicated upon in the manner set forth by the plaintiffs.

The plaintiffs charge that the defendant violated his obligation under his contract and under the law, and refused to execute a judgment against him. It would be difficult to conceive how a stronger cause of action could be set forth, or by what reasoning the plaintiffs could be denied an opportunity to establish their allegations. The plaintiffs charge that these violations have caused them damages. Damages from the violation of rights will be presumed and allowed without the necessity of proving them. Cooley on Torts 69; 1 Sedgwick 51; 13 Or. Appeal 353, 303; Bourdette vs. Sieward, 52 La. Ann. 1133, 27 So. 724; Powers vs. Florance, 7 La. Ann. 524; Davis vs. Arkansas Southern, 117 La. 320, 41 So. 587; 13 Cyc. 12-14-17-20, 191.

It is therefore ordered that the judgment appealed from be reversed and set aside, and that the exception of no cause or right of action be overruled, and that this case be remanded to the District Court for further proceedings according to law.


author: JONES, J.

text:
    No. 10,017
    Orleans
    LEVY v. GIANGROSSO
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal — Par. 625; Evidence — Par. 351.
    Only question of fact ■ is involved and the judgment of the trial court is amended because the preponderance of the evidence supports plaintiff’s entire claim.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Leon Levy against Paul Giangrosso.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. V. Provensal, of New Orleans, attorney for plaintiff, appellant.
    P. E. Edrington, Jr., of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sues to recover the sum of one thousand four hundred ten and 29-100 ($1410.29) dollars on an open account, of which - amount five hundred seventy-five and 79-100 ($575.79) dollars is admitted by defendant.

The amount in dispute, therefore, is eight hundred thirty-five and 50-100 ($835.50) dollars, covering the sale of the following items by plaintiff to defendant on July 24th, 1924:

300 pairs Mooney’s Men Full Soles @ 42% ______________________________________________$127.50

73% gross Men’s Asst. Heels — 885 dozen @ 80 cts. dozen_________ 708.00

Total ____________________________________$835.50

Defendant denies having purchased this quantity of merchandise and states that he only purchased from a representative of plaintiff, who had called at his place of business, 3234 Magazine street, ten gross of rubber heels in assorted sizes and colors at eighty cents per dozen, but that plaintiff had delivered to him sixty-three gross rubber heels, all black, not assorted sizes, and that he, upon discovery of the ’ fact that sixty-three gross had been delivered, phoned immediately to plaintiff and tendered back fifty-three gross; that this offer was refused and he now has fifty-three gross of rubber heels at plaintiff’s risk. Nothing was said as to soles.

Judgment was for plaintiff in the sum of seven hundred ninety-eight and 29-100 ($798.29) dollars, with legal interest from date of judicial demand until paid, and costs, which judgment included the five hundred seventy-five and 59-100 ($575.59) dollars admitted as due and owing, and also for three hundred pairs of soles at 42% cents a pair and ten gross heels (or one hundred twenty dozen) at eighty cents per dozen.

Plaintiff appealed and asks for judgment in the full amount sued for.

There is nothing before this court, except the question of fact as to whether defendant purchased seventy-three and three-fourths gross of rubber heels as alleged by plaintiff, or only ten gross as alleged by defendant.

Plaintiff, a wholesale shoe finding merchant, swears that defendant, who runs a shoe repairing shop, came to his store late on the afternoon of July 23rd, 1924; that he offered to sell him three hundred pairs of- men’s full soles at 42% cents per pair and a job lot of rubber heels, about seventy-five gross, exact number not definitely fixed, at eighty cents per dozen, although these heels had never brought less than a dollar per dozen, provided he would take both the soles and the heels; that, after some bickering defendant accepted the offer and the next day the heels were counted and' boxed and the exact amount found to be seventy-three and three-fourths gross, or eight hundred and eighty-five dozen; on the second morning the soles and heels were sent to defendant’s place in two loads; that his drayman had telephoned him after delivery of second load that defendant refused to sign the dray receipt on the ground that he had not ordered so many heels; that he had told drayman to wait at defendant’s store until he consulted his attorney, as he was not willing to sell the soles and only a part- of the heels at the reduced price; that later he had phoned his drayman to leave all the heels there at defendant’s store and return with unsigned dray receipt; that he had told defendant that the heels were all men’s heels and mostly black and mostly of one size and that they had been in his store about two years and that defendant saw the heels and knew that he was getting the reduced price because it was old stock; that his clerk, his stenographer and two customers were in the store at the time of the sale and he had shown defendant a list of the different boxes or cartons of heels, which filled some two typewritten pages in a memorandum book; he had told defendant that he did not know the exact amount, but that it was around seventy-five gross; that defendant said nothing about ten gross at the time; that he had taken no written order at the time, as he had dealt with defendant before and it was not his custom to take written orders in such cases.

James Harris, the colored porter and clerk, who had been working for plaintiff for twenty-seven years, confirmed plaintiff in practically all substantial details as to the sale and as to the packing and shipment.

John Murphy, the drayman, confirmed plaintiff as to delivery and as to refusal of defendant to sign the dray receipt after all the heels were placed in his store and also as to his telephone instructions from plaintiff when this unexpected im- . passe was developed.

He further swore that he had taken the soles and thirty gross on the first load and that defendant had helped to receive them without protest and, in fact, seemed entirely satisfied until he was presented with a bill and the dray receipt.

Defendant admits going to plaintiff’s store at the time stated and buying the soles and a job lot of rubber heels; he was shown at the time a book in which Mr. Levy had an inventory of the rubber heel stock and which he understood did not exceed ten gross and had agreed to buy the whole lot at the reduced price of eighty cents per dozen; that he had complained to the driver when the first load was delivered and that the driver had then said a second larger load was yet to come; when the second load came he had refused to accept them and driver had called up plaintiff for instructions and was told to leave them there any way; that he had vainly tried then to talk to Mr. Levy; that he operated a small repair shop and could not use all these heels in five years, as they were all of one size, color and variety; rubber would become hard in two or three years and the heels could not be used; that he had formerly run three stores and had then bought as much as twenty-five gross, but that a purchase of seventy-three and three-fourths gross would be ridiculous; that Levy had first wanted ninety cents per dozen and had then come down to eighty cents on his agreement to take the whole lot; that he had been shown a list of rubber heels in a book by Levy, but not the one in court; that he had sold a couple of dozen to his cousin and had put the heels out in the open yard with no protection.

Jos. Montegut swears he was working for defendant when heels were delivered; that defendant wouldn’t take the second load and driver wouldn’t take them back; that defendant told him he had ordered about a thousand pairs; that defendant rang up plaintiff and was unable to „talk to him.

Ceravalo, who runs an electric shoe repair shop, swore that the heels were old and he couldn’t use them in less than four or five years; that some time before he had gone in with defendant and bought twenty gross from Levy.

Zito, who also runs an electric shoe repair shop, swears that rubber heels, after three years, wouldn’t be much good; that it would take four or five years to use up seventy-three gross; that he had bought seven dozen of these heels from defendant, of three sizes, nine, eleven and seven; that Levy had sold him some of these heels at a dollar per dozen.

Above digest shows that defendant called at plaintiff’s store and made the purchase from plaintiff, though he had made a different statement in his answer; that seventy-three and three-fourths gross had been delivered and not sixty-three, as alleged in the answer. Therefore, defendant should have offered to return sixty-three gross, if he had ordered only ten gross, and not fifty-three gross.

As defendant admits that the low price had been offered on condition of his taking the whole lot, he should have sent back the entire lot, when he found the amount larger than expected; he could not keep what he wanted at the reduced price and only reject the balance without violating the essence of the agreement.

Furthermore, defendant has made it impossible to return the heels to defendant as he has sold and used some and thrown the others in the yard, where they have doubtless long since gone to ruin. Defendant should have refused to accept more than ten dozen at once and should never have allowed the second load to be brought to his place, and, if brought, under no circumstances should they have been placed in his store. They should have been kept in a safe place pending a decision on the matter.

The evidence shows he helped to unload them and made no protest until delivered.

Although both defendant and his two shoe-repairing friends testify that the purchase of so large an amount of rubber heels was absurd and ridiculous, the temptation of a bargain is to many of us well nigh irresistible, as the genial Goldsmith has so well shown in his immortal story of Moses and the green spectacles.

For the above reasons the judgment is affirmed.

It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Leon Levy, and against defendant, Paul Giangrosso, in the full sum of one thousand four hundred ten and 29-100 ($1410.29) dollars with legal interest from judicial demand until paid and all costs.


author: WESTERFIELD, J.

text:
    No. 11,221
    Orleans
    NEVILL v. PARISH DEMOCRATIC EXECUTIVE COMMITTEE FOR THE PARISH OF ORLEANS, LA., ET AL.
    (November 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Elections by the People — Par. 28.
    Under Act 97 of 1922 candidates for district offices have twenty days from the day the Parish Executive Committee meets and issues its call for a primary in which to file a notice of their intention to become candidates in the Democratic Primary so ordered.
    2. Louisiana Digest — Elections by the People — Par. 42.
    The fact that the Parish Committee, by resolution, makes a mistake, and extends the time for filing such notices by one day, can make no difference since the law and not the committee fixes the time for filing of notices at twenty days from the issuance of the call.
    3. Louisiana Digest — Elections by the People — Par. 28, 42.
    The fact that the Parish Committee were influenced by what they termed the serious character of candidates in rejecting some and accepting others, similarly situated, can not affect the action of the committee if its conclusion was correct, whatever may be said of its reasons.
    4. Louisiana Digest — Appeal—Par. 569, 571.
    The judgments appealed from, not the reasons therefor, determine the action of an appellate court in reviewing the proceedings below.
    Appeal from Civil District Court, Division “D”. Hon. Walter L. Gleason, Judge.
    Action by Robert W. Nevill against Parish Democratic Executive Committee for the Parish of Orleans, La., et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. M. Wilkinson, of New Orleans, attorney for plaintiff, appellant.
    J. A. Grasser, E. Rightor, Chas. J. Rivet, of New Orleans, attorneys for defendant, appellee.
   ON THE MERITS

WESTERFIELD, J.

Robert W. Nevill filed written notice of his intention to become a candidate for the State Senate with the Orleans Parish Democratic Committee for the Parish of Orleans, hereinafter called the Parish Committee, on October 28th, 1927.

Four days thereafter, John F. Brennan, a candidate from the same senatorial district, filed a written protest upon the ground that Nevill’s notice of intention was filed one day too late.

On Thursday, November 3rd, 1927, the Parish Committee met and considered the Brennan protest together with a number of others whose candidacies had been opposed upon the same ground. After a trial during which there was reference by some of the committeemen to serious candidates, implying that some were serious and others frivolous, the Parish Committee maintained the Brennan protest and refused to certify Neville’s name as a candidate to the Secretary of State as required by law, though, in at least one other instance a candidate against whom a similar protest had been made was certified and the protest against his candidacy overruled.

Nevill appealed to the District Court, which refused to interfere with the ruling of the Parish Committee, and from that judgment he appeals to this court.

The Primary Law, Act 97 of 1922, provides that the State Central Committee “of the political parties coming within the provisions of this act shall, on the first Tuesday of October next preceding the date of the next general state election * * * meet and issue a call for a primary election,” etc. Pursuant to that requirement the State Central Committee of the Democratic Party met October 4th, 1927, and issued its call for a 'primary election January 17th, 1928. Sec. 4 of the law declares that “within twenty days after the issuance of said call by the State Central Committee * * * the respective district and parochial committees shall meet and order that all nominations for district, parochial and ward offices” shall be made by direct primary held on the. same day as the General State Election. Accordingly, the Parish Committee for the Parish of Orleans met October 7th, 1927, and adopted the following resolution:

“BE IT FURTHER RESOLVED, that any person desiring to become a candidate for the State Senate shall file his written notification in form prescribed by law with chairman of this committee, on or before 12:00 o’clock midnight, October 28, 1927, and shall accompany said notification with a deposit as required by law in the sum of Five Dollars ($5.00).”

Section 13 of the Primary Law provides that candidates for state and district offices “shall” within twenty days (ten days for parochial offices) “after the issuance of the call of said committee” file written notice of their intention to become a candidate with “the respective officers hereinafter designated”, which in this case was the chairman of the Parish Committee. See Sec. 14.

The law therefore requires that the notice of candidacy must be filed within twenty days of the meeting of the committee. In the case of State Central Committee the date on which it meets is fixed by law-as the first Tuesday of October and in the case of the Parish Committee within twenty days thereafter. But” it is argued, the Parish Committee in its call declared that candidates would have until midnight October 28th, 1927, and thus mislead the complainant, who had a right to rely upon the interpretation given the law by public officers charged with its execution.

It is also contended that the record indicates the decision of the Parish Committee to have been based upon their opinion of the serious and • frivolous character of the candidates, an issue not raised by the objector, and not pertinent, nor tenable. Besides, by admitting one and rejecting others in the same predicament a manifest inequity results.

Practically every contention made in the instant case was urged in the case of Dunshie vs. Harvey Fields, Chairman, etc., No. 27975 S. C., decided November 21st, 1927. In the Dunshie case, a mistake was made by the State Central Committee of one day in fixing the last day for the filing of notices of intention to become candidates. Dunshie, as well as others, relied upon that action of the committee and attempted to qualify the last day. Protests were filed which - the committee overruled in some cases but upheld as against Dunshie. The same equitable considerations were urged, as are so ably and strenuously presented here, but the court held that Dunshie was too late because the law and not the committee fixed the date upon which he must qualify.

The two cases are very similar. In the instant case the Parish and not the State Central Committee issued the call for the election. This fact, it is contended, differentiates the cases, because the State Central Committee is required to meet on a fixed date (first Tuesday in October) and issue its call, whereas the Parish Committee may meet at any time within twenty days after the State Committee meets. This difference, it is argued, gives the Parish Committee more discretion than the State Committee, since it may meet any day of twenty, whereas, the State Committee only on one day. It is apparent, however, that the 'discretion, when exercised, is exhausted. The Parish Committee could not meet as it did on November 7th and again on the 10th or 12th and thus extend the time for candidates to qualify. It could meet any day of the twenty but not every day. The law did not contemplate that intending candidates should keep a constant vigil for fear the local committee should change the dates. It was clearly intended that once the meeting was held candidates could rely upon the ten or twenty days fixed by the law to begin to run from that time.

We can not find any difference in principle between this case and the Dunshie case.

It is true that in the Dunshie case there was no discussion of serious ‘or frivolous candidates as influencing the decision of the committee, the committee simply and arbitrarily separated the sheep from the goats. It must be conceded that in the instant case there was much said to that effect in the discussions of the committee, perhaps this consideration controlled the majority view.

We find the following admission in the record:

“That he, George Montgomery, who is a member of this bar as well as a member of the Parish Democratic Committee, had in mind going into the seriousness of a candidate that the committee had no doubt, but that their applications had been filed beyond the legal delay, but that, if the committee were satisfied with the seriousness of the candidacy of Nevill, it might extend its generosity by holding him qualified, in which situation there would have been no appeal from the decision of the committee.”

It can not be doubted that the committee was largely influenced by such consideration, but the most that can be said is that they were wrong. Their reasons were not sound. But if their judgment was correct the fact that their reasons were not is immaterial. A bad judgment can not be supported by good reasons but a good judgment is not vitiated by bad reasons. Seyburn vs. Deyris, 25 La. Ann. 483; Police Jury of Lafourche vs. Police Jury of Terrebonne, 48 La. Ann. 1299, 20 So. 708. The formal protest against Nevill was based upon the tardiness of his notice of intention to become a candidate.

All other points raised we consider sufficiently answered by the Dunshie case.

The judgment appealed from is affirmed.


text:
    No. 10,980
    Orleans
    VICTORY OIL CO., INC. v. AUGUST VON SCHLEMMER
    (October 31, 1927. Opinion and Decree.)

      {Syllabus by the Court)

    1. Louisiana Digest — Account—Par. 11.
    In a suit on an oipen account, the allegation and affidavit that the defendant has failed to pay the account is sufficient; it is not essential to allege or attest that no part thereof has been paid.
    2. Louisiana Digest — Corporations — Par. 211, 215.
    A suit may be brought in the name of the Corporation without naming the president or other officer.
    3. Louisiana Digest — Account—Par. 5.
    A detailed statement of the sum due for the price of merchandise sold and delivered is an open account.
    4. Louisiana Digest — Account—Par. 12, 13; Judgment — Par. 42.
    An affidavit of the correctness of the open account is sufficient evidence to authorize a judgment by default.
    5. Louisiana Digest — Judgment—Par. 47.
    Where a defendant suffers judgment by default to be taken against him, he is presumed to have confessed the justice of plaintiffs’ demand.
    Appeal from First City Court, Hon. W. A. Bahns, Judge.
    Action by Victory Oil Co., Inc., against August Von Schlemmer.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. R. Schowalter, of New Orleans, attorney for plaintiff, «aprpellee.
    H. L. Hammett, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sued the defendant under the name of August Von Schlemmer and obtained a judgment by default against him.

The citation was addressed to him in that name and was served at domicile.

Notice of judgment was addressed to him also in that name and was served also at domicile.

From the judgment the following appeal was taken:

“On motion of Arthur Von Schlemmer (erroneously styled August Von Schlemmer herein), the defendant in the above numbered and entitled case, through his attorney, H. L. Hammett, and on suggesting to the court that defendant is aggrieved by the judgment herein rendered and signed on the 24th day of March, 1927; that said judgment is contrary to the law and to the evidence, and that mover desires to appeal suspensively and devolutively therefrom to the Court of Appeal for the Parish of Orleans; It is ordered by the court that a devolutive and suspensive appeal be granted to said Arthur or August Von Schlemmer, defendant herein, returnable to the Court of Appeal for the Parish of Orleans on the 11th day of April, 1927, upon said party furnishing bond with good and solvent security, according to law.”

Upon April 4th, two days after the above order of appeal, the defendant filed another motion in the City Court in the following words:

On motion of Arthur Von Schlemmer (erroneously styled August Von Schlemmer herein) defendant herein, through his attorney, and etc.

In his brief the defendant and appellant, Arthur Von Schlemmer, charges four defects in the judgment, viz:

I. That the petition discloses no cause of action because it “alleges merely that defendant has not paid the total sum due without negativing the possibilty of part payment.”

The petition alleges that plaintiff “sold and delivered unto the said August Von Schlemmer, defendant herein, certain gasoline, kerosene, lubricating oils and greases, on the dates, in the amounts, of the prices and kinds more particularly specified in the attached sale and delivery slips hereto attached and made part of this petition, all of which goods so delivered totalling the sum of $260.67.

“That despite amicable the said August Von Schlemmer has failed to pay your petitioner the sum so due.”

To the petition are annexed eight several detailed and itemized bills for each one of the articles mentioned in the petition.

There is also annexed to the petition the following affidavit:

“Before me, the undersigned authority, personally came and appeared J. U. Suhor, who being by me first duly sworn according to law, deposes and says: That he is Secretary of the Victory Oil Co., Inc., the petitioner in the foregoing numbered and entitled cause; that he has read the said petition and that all the allegations thereof are true and correct.”

The allegations of the petition were sufficient in stating that the defendant had failed to pay the sum due. It was not essential to have added that defendant had failed to pay any part thereof.

The defendant also argues that “where suit was brought by the Secretary of the corporation without any allegation or proof of authority to commence or prosecute the action on behalf of the corporation, an exception of no cause of action filed in the Court of Appeal will be maintained”.

The learned counsel for defendant is in error in stating that the “suit was brought by the Secretary of the Corporation”. The petition reads: “The petition of the Victory Oil Co., a corporation organized, etc., * * * with respect represents:”.

The jurisprudence is now settled that a ‘suit may be brought simply in the name of the corporation without naming its president or other officer”. New Orleans Terminal Co. vs. Teller, 113 La. 733 (736), 37 South. 624.

In Southern Sawmill Co. vs. Ducote, 120 La. 1052, 46 South. 20, the court said:

“In N. O. Terminal Co. vs. Teller, 113 La. 733, 37 South. 624, this court held tha,t a corporation can sue in its own name, without designating its president or any of its other officers in the petition. In such a case the corporation appears through its attorney, who is presumed to have been properly authorized by the cgrporation to institute the suit.”

In Police Jury vs. Police Jury, 145 La. 1054 (1064), 83 South. 250, the court said:

“The Police Jury, according to that jurisprudence, being competent to bring the suit, and it having been brought in its name, it is presumed, in the absence of a challenge under oath, of the authority of the counsel by whom it was brought, that he was properly authorized to that effect.”

Section 16 of Act 267 of 1914, p. 527, does not affect these opinions.

The Act merely empowers the president of the corporation to authorize the institution of a suit in the name of the corporation without “special power from the Board of Directors”.

II. “Where the petition was directed against ‘August’ Von Schlemmer, where citation and notice of judgment were also directed in this name and judgment likewise rendered against ‘August’ Von Schlem-mer, the judgment cannot be maintained against ‘Arthur’ Von Schlemmer, particularly under the circumstances of this case.”

There is no question of that hind presented to us. The appeal is from a judgment against August Schlemmer, and the question is whether that judgment is correct. The suit was against “August” Schlemmer, the citation was addressed to him, and the judgment .was rendered against him. The judgment is apparently-according to lqw. “Arthur” Von Schlemmer has no interest to appeal from said judgment unless he has “been aggrieved by the judgment”. C. P. 571. That question is not before us and can only arise if he admits that he is bound by the judgment or when an attempt shall be made to execute it against him. The appeal bond is in the name of Arthur Von Schlemmer as principal “from a final judgment rendered against him, and is signed by him”.

III. “Where judgment by default was obtained without any testimony and upon the mere affidavit of one styling himself the secretary of the plaintiff corporation, the judgment will be set aside where there does not appear in the record any allegation or proof that the secretary was authorized to make the affidavit or that he had any personal or official knowledge of the facts.”

The fact that the affidavit was annexed to the petition and that it was used to confirm the default is proof conclusive that the secretary was authorized to make the affidavit. The fact that the affiant swore that he was secretary of the plaintiff company and “that all the allegations thereof are true and correct” is, in absence of evidence to the contrary, sufficient proof that he knew whereof he was testifying.

It is not necessary that he should state the source of his knowledge.

IV. “Where judgment by default was obtained upon an affidavit attached to the petition and where the petition does not allege any open account between the parties, but merely that certain goods were sold, and delivered, the affidavit will not be considered as an ‘attested account’ under Code of Practice 1085 authorizing judgment by default upon a sworn account.”

Counsel is mistaken in the number of the Article and in the use of the words “Attested account”.

We have seen that the petition alleges that the plaintiff sold and delivered to the defendant certain gasoline, etc., on the dates and in the amounts and for the prices specified in the attached delivery slips totalling the sum of $260.67, which the defendant has failed to pay despite amicable demand, and that according to his affidavit annexed to the petition, one Suhor swears that “all the allegations thereof are true and correct”. Upon this affidavit judgment was rendered against the defendant.

Act No. 90 of 1904, p. 209, amending Article C. P. 312, reads as follows:

Article 312. “If two days, whether judicial or non-judicial, but exclusive of Sundays and legal holidays, after the first judgment has been rendered, the defendant neither appears nor files his answer, definitive judgment will then be given for the plaintiff, provided he prove his demand. This proof is required in all cases, and when' the demand is for a sum due on an open account, then an affidavit of the correctness thereof, before any competent officer, shall be prima facie proof.”

Counsel for defendant argued that the bills annexed were not an open account; that an open account was a statement composed of several items with debits and credits, which was not the case here. This is an error. Whether there be one or m°re items of debit alone, and no credits, the account is still an open account. Goldman vs. Thomson, 3 La. App. 471, S. IV, was a suit for the price of merchandise sold and delivered.

The defense was “that the suit was upon a contract for sale of merchandise, payable cash on delivery and not a suit upon an open account, and hence judgment was rendered on insufficient proof; that is to say upon the ex parte affidavit above noted.” The court said:

IV. “It is plain from the allegations of the petition that the contract for merchandise, which was not paid for on delivery gave rise to a demand for a sum due on open account. Under these circumstances, an affidavit of the correctness of the account was prima facie proof of the demand and constituted sufficient evidence to justify a judgment by default, all as provided by Act 90 of 1904 amending Article 312 of the Code of Practice”. Tate vs. Garland, 12 La. Ann. 525.

Article C. P. 360 reads as follows:

“When the defendant suffers judgment by default to be taken against him, the issue is joined tacitly, because such defendant is presumed by his silence to have confessed the justice of his adversary’s demand; therefore, the plaintiff is allowed to proceed with his proofs in order to have the judgment confirmed.”

In Electrical Supply Co. vs. Moses, 3 La. App. 236, we said:

“A judgment by default is a sufficient eorrobora,tive circumstance, with the testimony of one witness, to establish a claim amounting to more than $500. Leeds vs. Dubuys, 4 R. 257. Webster & Co. vs. Burke, 24 La. Ann. 137. Consentiré videtur qui non negat.”

See also 1 Greenl. S 18 and Roman and English authorities quoted in note. 9282 Orl. App., Allen vs. Lioteau. 9 M. 439, Fitz vs. Cauchoix. 2 N. S. 266, Lopez vs. Bergel. 7 La. 178 (181), Harrison vs. McCawley, 10 La. Ann. 270.

In Horton vs. Haratson, 130 La. 100, 57 South. 643, in which the suit was upon an open account for goods sold and delivered, the court said:

“The testimony made out at least prima facie proof, and it was then incumbent upon the defendants to show wherein the proof was insufficient.”

The defendant has pointed out no error in the judgment, which is therefore affirmed.


text:
    No. 10,008
    Orleans
    ACME WHITE LEAD AND COLOR WORKS v. GULF NAVAL STORES CO., INC.
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales — Par. 129; Damages — Par. 69.
    The general rule for the measure of damages for the inexecution of a contract by Article 1934 of the Civil Code is the loss suffered or the profit of which the obligee has been deprived.
    2. Louisiana Digest — Sales — Par. 129; Damages — Par. 69, 77.
    In a contract of sale of movables the measure of damages against the vendor who fails to deliver the things sold is ordinarily the difference between the contract price and the enhanced market price of the things at the time the vendor makes default.
    3. Louisiana Digest — Sales — Par. 129; Damages — Par. 69.
    Where the seller does not make delivery on the day specified in the contract the buyer may on the following day buy in open market at the place of delivery and charge the seller with the amount paid by him less the contract price.
    4. Louisiana Digest — Sales — Par. 129; Damages — Par. 69, 77.
    The buyer may even delay a reasonable time before buying elsewhere and the seller will be liable for tbe difference in price paid unless he shows that the difference was greater on that time than on the day delivery should have been made under the contract, and that he has been prejudiced by the delay.
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action hy Acme White Lead and Color Works against Gulf Naval Stores Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dufour, Goldberg & Kammer, J. V. Wolf, of New Orleans, attorneys for plaintiff.
    Miller, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages hy a purchaser against a vendor for failure to deliver.

The plaintiff alleged that the defendant contracted to sell to it three tank cars of six to eight thousand gallons of turpentine, at seventy-five cents per gallon of 7.2 pounds f.o.b. seller’s tank car, Detroit, one car to be shipped immediately and the other two in March and April each; that the defendant delivered two cars but failed to deliver the car due in April notwithstanding repeated demands, and admitted his unwillingness and inability so to do, unless a delay was granted; that on May 17th plaintiff wired the defendant that it would buy against defendants’ account; that on May 23 plaintiff purchased eight thousand gallons of turpentine elsewhere at the market price then prevailing of eighty-nine cents per gallon, thereby sustaining a loss of fourteen cents per gallon, or eleven hundred and twenty dollars, which it claims from defendant.

The defendant admitted the contract of sale as set forth in plaintiffs’ petition, admitted its inability to perform but denied all the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed.

The defense is that plaintiff is entitled to recover only the increased value of turpentine on April 30th, the last day granted for the performance, and not the price paid by plaintiff on May 23rd, twenty-three days later.

The answer to this contention made by the trial judge in his written opinion meets our approval. He said in part:

“There is nothing in the record to show that the defendant suffered any injury whatever by the lapse of the twenty-three days from the 30th of April to the 23rd day of May, on which the turpentine was purchased. There is nothing in the record to show that there is a fluctuating market in turpentine. The defendant was in a position, being a furnisher or seller of turpentine, to show what the market price was on April 30th, and the presumption is, if this evidence was in its possession and the defendant failed to produce it, that this evidence would be against it. Again, the price having been established as of May 23rd, 1923, the presumption is, in the absence of any proof to the contrary, that the same price existed on April 30th. 1923.”

No one disputes the rule of law that ordinarily the damages are the difference in price on the day of default. Robinson Lbr. Co. vs. W. O. & C. G. Burton, 128 La. 121, 54 So. 582; Gallagher vs. Pike, Lapeyre & Bro., 24 La. Ann. 344; Hafner Mfg. Co. vs. Lieber Lbr. & Shingle Co., 127 La. 357, 53 So. 646; Camors & Co. vs. Madden, 36 La. Ann. 425; Bonsor & Co., Inc., vs. Simon Rice Milling Co., 151 La. 1100, 92 So. 711; 35 Cyc. 629-633, 636, 639. The only question is whether the difference in price claimed by the plaintiff is different from the price for which he could have bought on April 30th. The burden of proof was upon defendant for the reason that there is a presumption that the price was the same on April 30th that it was on May 23rd. For the further reason advanced by the trial judge that the defendant was a dealer in turpentine and presumed to have known the price on April 30th. If the price had been lower he cer^■inly would have proved it. For the further reason that the burden of proof is upon him who has a better knowledge of the subject matter, and that if he does not testify, the presumption is that his testimony would be against him. 2 Evans Pothier, p. 113; 1 H. D., p. 495, VIII No. 2; 3 La. Dig., p. 135.

The burden of proof to show that the damages claimed could have been prevented or mitigated is on defendant. 189 Fed. 576; 38 L. R. A. 837; 1 A. L. R. 433; 24 R. C. L. 71.

In Gauthier vs. Green, 14 La. Ann. 788, the rule of damages in the contract of sale was said to be governed by Art. C. C. 1934 as the loss suffered or profit lost.

This theory was adopted in Williams vs. Bienvenue, 109 La. 1023, 34 So. 63, and Hafner vs. Lieber, 127 La. 350 (361), 53 So. 646; C. W. Robinson Lbr. Co. vs. W. O. & C. G. Burton, 128 La. 121, 54 So. 582.

In the Hafner case the court said:

“A seller of lumber for delivery within a specified time has, under C. C. 2056, until the last day of the period to fulfill the contract, and where he does not make delivery on the last day the buyer may on the following day buy in the open market at the place of delivery and charge the seller with the cost less what would have been the cost under the contract.”

The plaintiffs testify that they paid the market price on May 23rd.

The defendant introduced no evidence of any kind, and showed no injury by the delay.

We are of the opinion that the judgment is correct and it is therefore affirmed.


author: WEBB, J.

text:
    No. 3047
    Second Circuit
    YOUNG v. PETTY STAVE & LBR. CO.
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    (ON APPLICATION FOR REHEARING)
    1. Louisiana Digest — Appeal—Par. 555.
    Act No. 16 of 1910 and rules of the Courts of Appeal are not affected by Section 11 of Article VII of the Constitution of 1921 as to the time fixed by the statute, namely fifteen days, in which application for rehearing may be filed in the Courts of Appeal.
    Appeal from . the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. J. A. Richardson, Judge.
    Action by Levi B. Young against C. F. Petty Stave & Lumber Co.
    Judgment refusing rehearing because application made too late.
    Wimberly & Wallace, of Arcadia, attorneys for plaintiff, appellant.
    Goff & Barnett, of Arcadia; Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   (ON APPLICATION FOR REHEARING)

WEBB, J.

The decree in this cause was rendered on November 10th, 1927, and the application for a rehearing was presented on December 10th, 1927, and the applicant concedes that the application came too late under the rule of this court which provides:

“As soon as judgments are rendered, the clerk of this court shall deliver in person or by mail to counsel of record, a copy of the opinion and decree, and he shall make a record of the date and time of the giving or making of such delivery, and this shall constitute the notice required by Section 24, Article 7, of the Constitution. The delay for filing applications for rehearing shall begin to run from the date of such notice, and shall expire with the fourteenth calendar day thereafter.”

But he contends that the rule and Act No. 16 of 1910 on which it is based are in violation of Section 11 of Article VII of the Constitution of 1921, which reads as follows:

“It shall be competent for the Supreme Court to require by writ of certiorari, or otherwise, any case to be certified from the Courts of Appeal to it for review, with the same power and authority in the case as if it had been carried directly by appeal to the said court; provided, that where the application is based solely upon the ground that the decision of the question of law involved is in conflict with the jurisprudence of the Supreme Court or another Court of Appeal upon a question not yet decided by the Supreme Court, and it is found that such is the fact, then the application shall .be granted as a matter of right; provided, however, that the Supreme Court shall in no case exercise the power conferred by this article unless the application shall have been made to the court or to one of the justices thereof within thirty days after a rehearing shall have been refused by the Court of Appeal; and provided furthér, that the judgment of the Court of Appeal éhall not become executory until the expiration of thirty days; or, in cases in which application is made for the writ of review, or other writs, until the decision of the Supreme Court upon the application shall have become final.” (Italics ours.)

The statute, Act No. 16 of 1910, which reads:

“That judgments rendered in the Courts of Appeal of state shall become final and executory on -the fifteenth calendar day after the rendition, except in cases of appeal from the City Courts of the City of New Orleans, which shall be and become final on the sixth calendar day after rendition, in term time and out of term time, unless the last day shall fall on a legal holiday; provided, that in the interval parties in interest shall have the right to apply for a rehearing”-—

relates especially to the time when the judgments of the Courts of Appeal shall! become executory, and the time when am application for a rehearing may be filed, and when the constitutional provision does not refer to the question as to when an application for a rehearing may be filed in the Courts of Appeal, the applicant apparently contends it declares that all of the decrees rendered by the Courts of Appeal shall not become executory until the expiration of thirty days after the date of the rendition of the decree, and it necessarily repealed the statute, and the statute, which provided for the period in which an application for rehearing might be filed being repealed, Article 912 of the Code of Practice, which reads:

“In the interval between the day on which the judgment is rendered and that on which it becomes final a party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition in which he shall state substantially the reasons for which he thinks the judgment is erroneous, and shall cite authorities in support of his opinion”—

must be applied, and thus his application for a rehearing having been filed before the decree became executory, it was in time and must be considered.

Conceding that Article 912 of the Code of Practice, which refers to proceedings in the Supreme Court, would be applicable if the statute (Act No. 16 of 1910) was repealed, we do not think the repeal followed the adoption of the constitution (see O. K. Realty Co., Inc., vs. John A. Julian, Inc., 157 La. 277, 102 So. 99).

The constitutional provision relates to the jurisdiction and power of the Supreme Court to review the decisions of the Courts of Appeal, and the first proviso limits the authority of review to those decisions of the Courts of Appeal where the application for the writ of review shall have been made to the Supreme Court or one of the justices thereof within thirty days after a rehearing shall have been refused by the Court of Appeal (Martinez & Bros. vs. Murray, 149 La. 982, 90 So. 366), and the second proviso (under which it is contended the repeal resulted) we think should be construed as providing that all decrees rendered by the Courts of Appeal in which a motion for a rehearing has been filed shall not become executory until the expiration of thirty days after the refusal of a rehearing, and if an application for a writ of review is made within such time, until the application has been finally passed upon by the Supreme Court.

Had the constitutional provision declared that all decrees rendered by the Court of Appeal should not become executory until thirty days after the rendition of the decree, we do not intimate it would not have to be construed as written, although in such case the proviso (which is ordinarily construed to limit or qualify the language which it follows) could be said to have gone beyond the apparent purpose of the provision, that is, to suspend execution in those decrees rendered by the Courts of Appeal where the decision became subject to review by the Supreme Court.

We are therefore of the opinion that Act No. 16 of 1910 was not affected by the constitutional provision as to the time fixed by the statute’ in which applications for rehearing could be filed in the Courts of Appeal, and under the statute the application filed herein came too late and cannot be' considered.


author: ODOM, J.

text:
    No. 2984
    Second Circuit
    PICKETT, ET AL., v. SOUTHERN CARBON CO.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158, 160 i.
    The allegations of petition of widow of dead employee that husband was murdered after he was called from his work by one not connected with defendant’s business, do not show a cause of action under the Workmen’s Compensation Act No. 20 of 1914 as amended, because there is no causal connection between deceased’s employment and the • injury he received which caused his death.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Mrs. Lida C. Pickett et al. against Southern Carbon Company.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Madison & Madison, of Bastrop, attorneys for plaintiffs, appellants.

      McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for defendant, appellee.
   ODOM, J.

Will Pickett, who was foreman of the defendant’s carbon plant at Spyker, Louisiana, was shot to death by Prank Cox on September 23, 1925. His widow, Mrs. Lida C. Pickett, individually and as natural tutrix of her minor child, William Claude Pickett, issue of her marriage with Will Pickett, brings this suit for compensation under the Workmen’s Compensation Act, No. 20 of 1914, and amendments.

Defendant filed an exception of no cause of action, which was sustained by the court, and she prosecutes this appeal.

OPINION

In her original petition, plaintiff alleged :

“That, on the 23rd day of September, 1925, the said Will Pickett, while in the employ of the said Southern Carbon Company at their plant located at or near Spyker, Louisiana, and during the course of his employment, was injured and as a result of said injury died shortly thereafter on the same date, September 23rd, 1925.”

Plaintiff did not set forth the nature and kind of work which the deceased was performing at the time he was injured, nor did she allege that the injury arose out of the employment.

Defendant filed an exception of vagueness, which was sustained by the court, but she was allowed to amend her petition “to show the manner in which William Pickett was injured and the kind of work he was performing at the time he was injured”.

She amended her petition and alleged:

“That Will Pickett was in the employment of the Southern Carbon Company, at Spyker, Morehouse Parish, Louisiana, on September 23, 1925, in the capacity of superintendent of the gasoline plant.
“That on the morning of September 23, 1925, while at work in the usual course of his employment in the gasoline plant, he was informed by one Virgil Flemming, an employee, that Prank Cox, who was not an employee, desired to see him.
“That said Cox and Pickett met on the wooden platform which leads from the warehouse to the railroad, and a conversation followed; that after a few minutes of conversation the said Cox pulled a revolver from his, the said Cox’s person, fired several times, each shot taking effect.
“That the said Pickett ran to the warehouse followed by the said Cox, and died within a few minutes as a result of said wounds.
“That said Pickett was not armed and the shooting occurred on the property of the Southern Carbon Company or property under their control.”

After the filing of this amended petition, defendant tendered and filed an exception of no cause of action, which was sustained by the court. This appeal followed.

The exception, and the court’s ruling thereon, are grounded upon the proposition that the facts alleged do not show that Will Pickett’s death was due to an accident arising out of his employment.

Under the plain letter of the act (Section 2, Act No 20 of 1914, as amended by Act No. 38 of 1918), and under repeated decisions of our Supreme Court, in order that an injured employee, or his dependents, may recover compensation under the act, it must be alleged and shown that the accident causing the injury or death arose both in the course and out of the employment.

Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 So. 677.

Meyers vs. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256.

Therefore, a petition which does not allege in specific terms that the accident was one growing out of the employment, or disclose facts which show that it did, does not disclose a cause of action.

It is nowhere alleged specifically in the original or amended petition that the injury resulting in the death of Will Pickett arose out of his employment; so that unless the facts and circumstances alleged as to the manner in which he came to his death show that the accident was one growing out of the employment, it must be held that no cause of action is shown.

The facts disclosed by the amended petition are that on the morning of September 23, 1925, Pickett, who was foreman of the gasoline plant of defendant, was engaged in the discharge of his duties at the plant, and, while so engaged, was informed by an employee of the company that Prank Cox, who was not an employee, desired to see him, that Cox and Pickett met on the platform leading from the warehouse to the railroad (presumably Pickett walked out to where Cox was) and that after a few minutes conversation Cox drew a revolver and shot Pickett to death; that Pickett was not armed and that he was killed on defendant’s property.

Reduced to plain and simple language, plaintiff alleges that Cox, who had no connection with defendant’s business, caused Pickett to leave his work in the plant in day time, walk out in the open, and there murdered him.

In a very recent case decided by our Supreme Court, that of Conaway vs. Marine Oil Co., 162 La. 147, 110 So. 181, the court quoted i approvingly the following extract from the case In Re McNicol, 215 Mass. 397, 102 N. E. 697 (L. R. A. 1916A 306):

“It (the injury) arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood.”

In the leading case of Meyers vs. Louisiana Railway & Navigation Company, 140 La. 937, 74 So. 256, the organ of the court made an exhaustive review of the jurisprudence dealing with the question of what accidents may be said to arise “out of the employment” and, after doing so, announced the following rule:

“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.”

The allegations of plaintiff’s petition (which, of course, we accept as true) do not disclose, to our minds, that there was any causal connection between the conditions under which Pickett’s work was required to be performed and the resulting injury; nor do we think the injury can be said to have followed as a natural incident of the work which he was required to perform, or that his work exposed him to an extra hazard. His work did not bring him in contact with his enemy, Cox, for Cox was not employed by defendant. Pickett’s work did not make him more accessible to an attack by Cox than he would have been had he not been so engaged. Cox, in broad daylight, sought Pickett, found him at work and induced him to leave his work and come out, and attacked him. He could have as easily done the same thing elsewhere or at another time. Cox was not facilitated in his attack by the nature of Pickett’s employment.

It cannot, therefore, be said that Pickett’s death had its origin in a risk connected with the employment and that it resulted from the source of the employment as a rational consequence.

Counsel for plaintiff cite in support of their case the cases of Dyer vs. Rapides Lumber Company, 154 La. 1091, 98 So. 677, and Ferguson vs. Cady-McFarland Gravel Company, 156 La. 871, 101 So. 248.

The facts in the Dyer case were that the defendant, a logging company, kept its engines out in the woods at night some four hundred feet away from the nearest human habitation; that the deceased’s duties as an employee of defendant required that he remain with the engines at night to clean them and keep fires in the boilers so that they would be ready for the following day’s run, and that while so engaged at night he was shot and killed by an unknown assassin.

In holding that the widow and other dependents of the deceased were entitled to recover, the court reasoned that the conditions under which the deceased worked, in the darkness of the night and at a spot isolated in the woods, exposed him to more easy attack by an enemy than he otherwise would have been, that his exposure was “the direct and necessary result of his employment”, and the court said:

“Common experience teaches us that crimes are more common in darkness than in light, in isolated than in frequented places.”

And further:

“And we cannot assume that a man is exposed to the same danger of attack at his own home, or in some frequented place, or in the daytime, as he would be when called by his employment to some lonesome spot and in the nighttime.”

In the Cady-McFarland case, supra, the deceased was employed to repair a railroad track, and while at work in a stooping position was struck on the head with an iron bar and killed by a fellow employee. His dependents were allowed to recover. (See same case, Court of Appeal, not yet reported), upon the theory and ground that his employment brought him in contact with a fellow employee who was his enemy and that he would not'have been so exposed if he had not ben so employed. In other words, he was exposed to an extra hazard by his employment.

The court said:

“An employee, like the decedent, who may have an enemy among his fellow employees in the same gang in which he is required to work, necessarily comes in contact with such enemy throughout all hours of the day, and is constantly exposed to assault and bodily harm. He therefore incurs greater risk necessitated by his employment than a person ordinarily would be subjected to outside of such employment.” (Italics ours.)

The holding in these cases is grounded upon the proposition that there was a causal connection between the employment and the injury; that the nature of the employment exposed the employee to an additional risk, an extra hazard.

This point does not seem to have been stressed in the case of Dyas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303, also cited by counsel, but the facts in that case were that the duties of the deceased brought him in contact with cab drivers, one of whom killed him after a dispute over the carriage of baggage. The extra hazard was his necessary contact with cab drivers.

Our attention is called to the case of Gasca vs. Texas Pipe Line Co., 2 La. App. 483, decided by us in June, 1925.

In that case an employee was killed by lightning during lunch time while taking shelter under a tree, and his dependents were allowed to recover.

In his opinion, on rehearing, the late Judge Carver, after stating that the court did not mean to hold that the statute is a general accident and life insurance provision requiring no relation between the accident and the employment beyond the fact that the deceased was on the payroll, said:

“We think the death in this case compensable, though, because, as we appreciate the law and the facts, the conditions to which Gasca’s employment' subjected him increased the risk from lightning and, under the authorities, we think this is sufficient causal connection between the employment and the accident.”

This writer dissented in that case, because it seemed far-fetched to hold that Gasca’s employment subjected him to an added or increased risk from lightning. However, assuming that it did, the holding is supported by the jurisprudence of this and other states.

Counsel cite also the case of Schexneider vs. General American Tank Car Corporation, 5 La. App. 84, decided by the Orleans court on July 5, 1926.

In that case the deceased was killed by the accidental discharge of a pistol by the night watchman through “horseplay”. But the court said:

“In the case now before us, Petrolia was shot by the night watchman of defendant. The revolver from which the shot was accidentally discharged was a part of the watchman’s equipment and essential to his employment as a means of protecting his employer’s property.”

The court observed that the case was very different from the cited cases where injury resulted entirely from pranks of employees—

“without reference to any instrumentality of the employer’s business”.

The night watchman was an employee of the defendant and the gun was an “instrumentality of the employer’s business”.

The employment in that case brought the deceased and the night watchman together; hence the added risk.

In the case at bar, Cox was not an employee of defendant and Pickett’s employment did not bring him in contact with Cox; nor did such employment subject him to any greater risk or peril than he would have been in if he had not been so employed. There was no causal connection between the employment and the injury. Conaway vs. Marine Oil Co., 162 La. 147, 110 So. 181.

The judgment sustaining the exception of no cause of action is correct and is affirmed with costs.


text:
    No. 3169
    Second Circuit
    CONCORDIA BAKING COMPANY v. LOUISIANA & ARKANSAS RY. CO.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus t>y the Ect-itor)

    1. Louisiana Digest — Railroads—Par. 62.
    The employees of a railroad are not negligent where the whistle was sounded, the bell rung, and a brakeman was stationed on the train waving a lighted lantern as the train approached the crossing, there being sufficient light for anyone to see the train.
    2. Louisiana Digest — Railroads—Par. 60.
    A railroad is not negligent because no flagman was at the crossing which was little used, where it is shown that the train approached at slow speed.
    3. Louisiana Digest — Railroads—Par. 63, 64.
    Where one approached a crossing, stopped in a perfunctory manner without looking or listening sufficiently, and attempted to cross in front of a train, he is negligent.
    Appeal from the Seventh Judicial District Court of Louisiana, Parish of Concordia. Hon. R. M. Taliaferre, Judge.
    Action by Concordia Baking Company against Louisiana & Arkansas Railway Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hugh Tullís, of Yidalia, attorney for plaintiff, appellant.
    White, Holloman & White, A. L. Buford, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff appeals from a judgment rejecting its demands for damages to a motor truck owned by plaintiff, resulting from a collision between the truck and one of defendant’s trains which occurred after dark at a point where the railroad track crosses one of the streets in the town of Vidalia.

The plaintiff alleged that the train was being backed over the crossing which was unguarded and poorly lighted, and that there was not any light on the train, nor a lookout maintained, and that the train approached and entered upon the crossing without any warning signals.

The defendant denied the allegations and alleged that the driver of the truck had attempted to dash over the crossing in front of the approaching train, and that the accident was due entirely to the fault of the driver of the truck.

The evidence establishes that the usual warning signals, such as sounding the whistle and ringing the bell, as the train approached the crossing, were given, and that a lookout was maintained by the engineer and fireman, and by a brakeman who was stationed at the end of the train, as it approached the crossing, who was waving a lighted lantern as the train came to the crossing, and that the crossing and way over which the train approached it was sufficiently lighted for the train to have been seen by anyone who approached the crossing from the street, and unless the defendant was bound to have maintained a flagman at the crossing, which the plaintiff claims it was obliged to do, there was not any negligence established on the part of the defendant.

The crossing was in the corporate limits, but it was not shown that any ordinance required a flagman to be stationed at the crossing, and it is not shown that the traffie was so continuous or that the environment was such as to indicate the necessity of a flagman at that point, where the train was operated at such slow speed as was shown to have been the case in the present instance; and we do not think the defendant could be held guilty of negligence in not having a flagman stationed at the crossing while its train was approaching and about to pass thereon.

We are of the opinion, therefore, that the evidence failed to establish any negligence on the part of the defendant.

However, if it be conceded that the defendant was negligent, we think that the evidence establishes that the plaintiff was guilty of contributory negligence.

While the testimony is contradictory, and as between the witnesses for plaintiff and defendant, somewhat in conflict, as to whether the driver of the truck stopped at any point with the purpose of noting the situation before driving upon the track, the evidence establishes that the location of the crossing was such that the driver of the truck had ample opportunity to stop where he could have seen and heard the approaching train before driving upon the track; and conceding he did stop with the purpose of noting the situation before going upon the track, he must have acted in an exceedingly perfunctory manner, as otherwise he would have seen and heard the train, and such action, we do not think, could be considered as a compliance with the rule that the plaintiff should have stopped, looked and listened before driving upon the track.

“It is the duty of a person approaching a railroad track to stop before crossing, and after stopping to look and listen, not in a perfunctory manner but in an effective way, in order to accomplish the end intended by the rule.”

Jefferson Planting Co. vs. M. L. & T. R. R. & S. S. Co., Orleans App. No. 7520.

Also Young vs. Louisiana Western Ry. Co., 153 La. 129, 95 So. 511.

The judgment appealed from is affirmed.


text:
    No. 3124
    Second Circuit
    GENERAL PRODUCTS COMPANY, INC. v. MANN
    (December 21, 1927. Opinion and Decree.)
    (Syllabus by the Editor)
    ,1. Louisiana Digest — Obligations—Par. 71; Judgment — Par. 42.
    Where the trial court refused to give judgment by default on an account because, although the record did not show that the account was for purchase of liquids in contravention of the National Prohibition Act, it was for the purchase of liquids containing alcohol, the court erred, because, without any evidence, it could not find the liquid fit for and actually sold for beverage purposes.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by General Products Company, Inc., against Dennis Mann.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    J. B. Thornhill, of Columbia, attorney for plaintiff, appellant.

      Dennis Mann, in proprio persona.
   WEBB, J.

The plaintiff, General Products Company, Inc., a corporation organized and doing business under the laws of and with its domicile in the state of Kentucky, filed this action against Dennis Mann, who was conducting a drug store in the parish of Richland, in the District Court of that parish, to recover judgment for an alleged balance due on open account amounting to nine hundred and fifty dollars, with Jegal interest from judicial demand.

The defendant did not answer, and after a default had been regularly entered, plaintiff, after legal delays, attempted to confirm the default, offering in evidence an itemized statement of the account, duly attested, and submitted the cause, and judgment being rendered rejecting its demands, plaintiff appeals.

The defendant has not appeared in this court, and while plaintiff appeared by counsel on the hearing, it has not cited any authorities in support of its contentions that the judgment was erroneous, and in passing upon the cause we shall confine our discussion to the finding of the court, in which it appears, from an opinion in the record, that the court, from an examination of the account, found that the liquid sold contained more than one-half of one per centum of alcohol, and being convinced that the sale was for beverage purposes and contrary to law, it refused to enforce the sale.

The National Prohibition Act, of date October 28, 1919, prohibits the sale, without a permit, of intoxicating liquors, which liquors are declared to include alcohol, brandy, whiskey, etc., and any spirituous, vinous or fermented liquor, liquids or compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of. one per centum of alcohol by volume which are fit for beverage purposes (Tit. LI, Sec. 2), and it further provides that certain manufactured articles or liquids containing alcohol in greater content than above specified, which are not fit for beverage purposes may be sold without a permit (Tit. IL, Sec. 4).

íhe position of the court, as we gather from the opinion, is that the liquids sold contained more than one-half of one per centum of alcohol by volume and were intoxicating, and it not being shown that the plaintiff had a permit to sell same, the sale was in direct violation of law; and, further, even though the sale could have been made without a permit, that the liquids, though unfit for beverage purposes, could be used for intoxicating beverage purposes and were sold by the plaintiff to be used for that purpose.

It must of course be conceded that it would be the duty of the court to refuse to enforce a contract of sale made in violation of law (Miller vs. Ammon, 145 U. S. 421, 36 L. Ed. 759; Adler vs. Zimmerman, 135 N. E. 840), or having for its purpose the direct object to promote the violation of the law (R. C. L., Vol. 23, Sales, p. 1309, No. 125); however, it would require evidence to show the facts, as in the present instance, that the object sold was a liquid containing one-half of one per centum of alcohol by volume, or that it was intoxicating, and the record shows that there was not any such evidence offered but that the court found such facts from a consideration of the account.

The account consists of many items,' none of which are above five hundred dollars, and the articles sold are stated thereon to have been “Tincture of Jamaica Ginger, Double Strength,” “Tutti Frutti Extract,” “Pear Extract,” “Cake Flavor" and “Banana Extract,” none of which are specifically named in the statute as intoxicating liquor, or as containing one-half of one per centum or more of alcohol hy volume, and the court in finding from an inspection of the account that the liquids contained more than the allowed content of alcohol or that they were intoxicating, exceeded his power.

While it may be said that “Tincture of Jamaica Ginger, Double Strength,” under the ruling of certain departments of the government has been, declared capable of producing intoxication, the court could not take judicial notice of the ruling; or, if it could, the ruling of the department was also that such liquid was unfit for beverage purposes (see State vs. Sandman, 159 La. 451, 105 So. 451), and could be sold without a permit under the National Prohibition Act, Tit. LI, Sec. 4, and the court could not, without any evidence being introduced, find that a liquid which was unfit for beverage purposes had been in fact sold for such purposes.

The judgment appealed from is therefore reversed, and it is ordered, adjudged and decreed that plaintiff, General Products Company, Inc., have and recover judgment against defendant, Dennis Mann, in the sum of nine hundred and fifty ddllars, with legal interest thereon from judicial demand, and all costs of suit.


text:
    No. 3122
    Second Circuit
    LITTLE v. CROW-EDWARDS LBR. CO.
    (December 21, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 160.
    Under Section 8, Sub-section 2, of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act No. 85 of 1926, where the father of deceased was partially dependent on earnings of the deceased, the amount to be awarded should be as follows; The amount of award to be determined is, to the amount of award, if father had been wholly dependent upon deceased employee, as the weekly average contribution made to the father is to the amount of the weekly wage of deceased.
    2. Louisiana Digest — Master and Servant —Par. 160 j, 160 I.
    Where the evidence in a suit for compensation under the Workmen’s Compensation Act No. 20 of 1914, as amended, does not show sufficiently the amount to which father was dependent upon the earnings of his deceased son, the case will be remanded for new trial.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union.
    Action by Calvin L. Little against Crow-E'dwards Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment annulled and case remanded to district court.
    H. G. Fields, of Farmerville, attorney for plaintiff, appellee.
    B. K. Watson, of Farmerville, attorney for defendant, appellant.
   WEBB, J.

Denny Little, an unmarried man, twenty-eight years of age, while employed by the Crow-Edwards Lumber Company at a wage of eighteen dollars per ;week, received an injury while in the course of and arising out of his employment, which caused his death within a few days after the accident; and this action was instituted by the father of the deceased to recover judgment for compensation under the Employers’ Liability Statute (Act No. 20 of 1914) for the death of his son.

The statute (Section 8, Paragraph 2), as amended by Act No. 85 of 1926, provides compensation for two classes of dependents —those who were wholly dependent for support upon the earnings of the deceased and those who were partially dependent thereon.

The statute fixes the amount to he paid the first class at a certain per cent of the weekly wages ef the deceased, and the amount to be paid to the other class is fixed with reference to the amount which the person would have been entitled to receive had he been wholly dependent; the statute in regard to the fixing of compensation reading in part as follows:

“For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid, as aforesaid, shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

The evidence shows that the plaintiff was a farmer living with his family (consisting of a wife, stepmother to the deceased, and seven minor children) on a tract of one hundred and sixty acres, which was cultivated by plaintiff and his family, from which resource plaintiff obtained considerable revenue but not more than enough to furnish himself and family with the bare necessities of life; and the evidence further showing that plaintiff was not in good health, that the farm was mortgaged, and that he did not own any other property, and it further appearing .that plaintiff had received from his major children, including the deceased, some contributions in money, provisions, and clothing for the children, for a period of several years, we are of the opinion that the evidence establishes dependency (Hamilton vs. Texas Co., 151 La. 692, 92 South. 301; Cawthorn vs. Cypress Tank Co., 1 La. App. 100; Nelson vs. Henderson, I. W. & S. Co., 1 La. App. 232; Rome vs. Mexican Pet. Corp., 3 La. App 523); however, the dependency was partial, and under the statute the right to recover for partial dependency is dependent on the amount contributed by the employee to the partial dependents during the year prior to his death.

The evidence as to the amount contributed by the deceased to plaintiff during the year preceding his death is very indefinite, and although when pressed by his counsel to fix a definite amount, he stated that the deceased had contributed ten or fifteen dollars per month, he was unable to specify any contribution of more than ten dollars which was made during the two months prior to the employee’s death, and also to show that during the same period of time deceased had given one of the children a dress and a pair of hose, the value of which was not stated.

The plaintiff carried the burden to establish the amount contributed by the deceased within the year prior to the latter’s death, which fact was particularly within his knowledge, and we do not think that the statement of plaintiff that the deceased had contributed ten or fifteen dollars per month, which clearly related to the entire period of some years during which plaintiff claimed the deceased had contributed, to his support, when considered with the fact that plaintiff did not undertake to specify any certain contributions except those made within the last two months prior to the death of his son, is' sufficient proof on which to base a judgment (Gilbert vs. Liebman, 47 La. Ann. 548, 17 South. 167; La. Dig. verbo “Evidence”, No. 349 and that the only actual proof qf any contributions was of ten dollars made during the two months prior to the employee’s death, and of a dress and pair of hose made to one of the children during the same, period.

While the child herself may have been a partial dependent, no claim is set up in her behalf, and as the evidence does not show such contributions to have been made to her or other children of the family in such manner as to indicate that the gifts or contributions made to her or the other children were made other than to assist plaintiff, who claims the benefit of same, we are qf the opinion that in determining the amount coming to plaintiff, the contributions made to the father in money or otherwise, and to the children, during the year prior to the death of the deceased, should be considered as the factors of the equation proposed for determining the compensation to be paid the plaintiff.

The factors of the equation proposed by the statute based upon the facts proven would be thirty-two and one-half per cent, of the weekly wages of the deceased at the time of his death, or five and 85/100 dollars, and the average weekly amount contributed by the deceased to the plaintiff, or one fifty-second of ten dollars, which would be about twenty cents, and the weekly wage of the deceased, or eighteen dollars, which proposition, mathematically stated, would be as follows: the amount of the award to be determined is, to the amount of the award, if plaintiff had been wholly dependent upon the deceased employee, as the weekly contribution made to plaintiff is to the amount of the weekly wage of the deceased.

The amount which would be awarded under the evidence would, however, be so small, and as the evidence indicates that the deceased may have" contributed more than ten dollars, by assisting him on the farm or rendering valuable services or by making contributions of necessities to the children, the value of which can be established, we think that the plaintiff should be permitted to offer additional evidence in support of his dependency, and that the case should be remanded for a new trial, in accordance with the law and the views herein expressed.

It is, therefore, ordered that’ the judgment appealed from be annulled' and set aside and that the case be remanded to the District Court for a new trial; the costs, including the cost of this appeal, to await the result of the new trial.-


author: REYNOLDS, J.

text:
    No. 3094
    Second Circuit
    BROOKS v. HARVEY & CO.
    (December 21, 1927. Opinion, and Decree)

      (Syllabus by the: Editor)

    1. Louisiana Digest — Evidence—Par. 58, 59.
    The burden of proof is on the defendant to show his defense that a new motor purchased by him was to be paid for, only in the event that the manufacturer, after inspection, should say that the old motor taken out of the car was not defective.
    2. Louisiana Digest — Evidence—Par. 351.
    Where the preponderance of evidence does not prove the special defense that defendant was to pay for the motor purchased only in the event of a certain contingency," there must be judgment for plaintiff.
    Louisiana Digest — Reconvention—Par. 1, 2, 14.
    A reccnventional demand based on a contract between ¡plaintiff and a third party will be dismissed.

      Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by P. O. Brooks against E. D. Harvey & Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    WiHiam J. Hammon, of Jonesboro, attorney for plaintiff, appellee.
    T. S. Price, of Ruston, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff is a dealer in automobiles and automobile accessories and sues defendant for $117.25 claimed to be due upon open account, $110.00 of which being the price of a new motor for an automobile, and $7.25 being transportation charges from New Orleans to Jonesboro on an old motor for an automobile paid by plaintiff for defendant’s account.

The defense is that defendant purchased an automobile from plaintiff and the motor in it proved defective and defendant returned it to plaintiff to be shipped to the manufacturer to be repaired and that plaintiff put a new motor in the automobile to be used by defendant until the old motor could be repaired and put back;'that plaintiff shipped the old motor to the manufacturer who returned it to him without repairing it and that plaintiff still has the old motor and neglects and refuses to have it repaired and put back in defendant’s automobile.

In the alternative, should the court hold that defendant is liable to plaintiff as alleged, defendant asks judgment against plaintiff for $117.25 with 5% interest from March 15, 1925, as the price paid by defendant for the old motor.

On these issues the ease was tried and there was judgment in favor of the plaintiff as prayed for and defendant appealed.

OPINION

Plaintiff sold a new automobile to one R. J. Trotter, who paid for it partly with an old automobile and partly with promissory notes which plaintiff sold to a third person.

By some arrangement between Trotter and defendant the automobile passed into the possession of defendant.

About four months after the sale defendant brought the car to plaintiff’s place of business and at his request plaintiff installed a new motor in it.

Defendant desired plaintiff to repair the old motor in his shop without cost to him or to ship it tq the manufacturer to be repaired by him without cost to defendant on the contention that the motor was originally defective. Plaintiff refused to do either, asserting that the inability of the motor to work properly was the result of imperfect lubrication and misuse since the sale.

• Thereupon defendant himself shipped the motor to the manufacturer, who, after some correspondence with plaintiff, shipped it back to plaintiff for the reason that in his opinion the needed repairs could and should be made in plaintiff’s workshop.

Plaintiff paid the return transportation charges on the motor to avoid prejudicing his business relations with the manufacturer.

Defendant having refused to pay for the new motor or the return transportation charges on the old one, plaintiff brought this suit.

It is defendant’s contention that plaintiff installed the new motor in his autoinobile to be used without cost until the old motor could be repaired and that this also was to be done by plaintiff without cost to defendant.

The burden of proving this was on defendant and we do not think he has made out his case.

Defendant testified (Evidence, page 27, et seq.):

“I told Mr. Brooks — -Mr. Trotter was working for me and I was keeping up this car and he had the car in the shop one time at Junction City with it and paid thirty ($30.00) dollars on it and I told him we were not going to keep the motor up in that condition, and I went to Mr. Brooks’ place and I told Mr. Brooks this: You put a new motor in “that car because I am not going to pay for repairs on it, the motor is not right; and he said, I don’t know whether it is or not. I said: You put a new motor in that car and ship the motor back to the Ford people and if they say the motor is all right and no defect in it, I will pay you for the motor, and if they come back and say that it was not all right, well, you can make it good. Mr. Brooks has my motor charged with freight there and back. Mr. Brooks crated this motor and shipped it to the Ford people at New Orleans. They didn’t unpack it. They wrote me back telling me that Mr. Brooks should be equipped to see whether this motor was all right; and the motor has never been unpacked yet and he is suing me with freight charges there and back and the Ford people didn’t unpack it and look at it and Mr. Brooks has not unpacked it to see whether it is my fault or whether it is his fault. The motor has never been unpacked. He is suing me for the freight, suing me for the engine, and the Ford people wrote me and told me that Mr. Brooks should be equipped to say whether it was all right or not. * * * I told him, if you ship this motor to the Ford Motor Company and they examine that motor and say that it was correct and right when it came out of the factory, I will pay you for the motor and if they don’t I don’t pay you for it.”
* * # *
“Q. Did Mr. Brooks know at that time that this was the same car that he had sold Mr. Trotter?
“A. Absolutely, he knew it was Trotter’s car; told him what I was doing; I was keeping up the car, and I was not going to keep up a defective part like that * * * ”

Plaintiff, F. O. Brooks, testified (Evidence, page 3, et seq.):

That he was an experienced mechanic in the repair of automobile machinery, and that:

“Q. With reference to the engine, tell me about that?
“A. It was just like all other Ford engines, as good as I ever sold. It was mistreated. I sold it to Mr. Trotter.
“Q. How long was it after you sold it when complaint was made?
“A. There was no complaint until the whole thing came up. Mr. Harvey came in and wanted me to send the car to the company, which was about four months after it was sold; and in the meantime they came in for service, and we had done more or less service to it, and just before Mr. Harvey made his complaint we had tightened all bearings in the motor, a thing that we are not supposed to do at all, that is not our fault and it is not free service, but we did it in this case to be sure we were doing all we could; and the thing that was the matter, the motor was damaged by lack of lubrication and hard use.
“Q. He said that you shipped that engine to the Ford Motor Company at New Orleans?
“Á. No, sir; I refused to ship it. I told hinmthat I had done all that was possible to do; and he shipped it himself and paid freight on it.
* * ijs *
“Q. What was said, if anything, when you put the new motor in the coupe?
“A. That was all settled; the motor had been shipped by Mr. Harvey, and he asked me what I would sell him a new motor for; and at that time the installation fee was $6.00, and I told him that I would sell him one at $110.00 and not charge any installation fee. I deducted the installation fee. I sold it to him personally.
“Q. Was it at that time agreed or understood in any way that you were replacing the motor that had been damaged by misuse and lack of lubrication?
“A. It was understood that I was not going to do anything, and the motor at that time was at New Orleans; I had discharged the case and I had done at least three or four times as much as I ordinarily do to a motor trying to take care of these parts.
“Q. The motor was damaged on account of rough treatment and lack of lubrication?
“A. Yes, sir.
“Q. And not as a defect in the material or workmanship as an original proposition?
“A. No, sir.”

Defendant does not testify that he did not buy the new motor but only that he was not to pay for it in a certain contingency, namely, that the manufacturer, after inspection, should say that the old motor was all right and had no defect in it.

Plaintiff denies that he made any such agreement with defendant, and thus sets off whatever probative force defendant’s testimony may have, and as the burden was on defendant to establish his defense by a preponderance of the evidence it falls for lack of proof.

Defendant’s reconventional demand seems based upon the theory that the automobile from which the motor was removed was ¡purchased by him from plaintiff. This is a misconception. Plaintiff, Trotter and defendant himself all testify that the automobile was sold by plaintiff to Trotter. Defendant does not even claim to have bought the automobile from Trotter. He testifies that the owner of the car, Trotter, was working for him and that he was merely keeping the car up.

There was no privity of contract between defendant and plaintiff so that even if the motor was originally defective and plaintiff was under contractual obligation to repair the defect (as to which we express no opinion) the obligation was not in favor of the plaintiff.

We find no error in the judgment appealed from and accordingly it is affirmed.