text:
    No. 3514
    Second Circuit
    CHATMAN v. WREN & TURNER, INC., ET AL.
    (July 1, 1929. Opinion and Decree.)

      R. F. Langston, of Minden, attorney for plaintiff, appellee.
    A. S. Drew, of Minden, attorney for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit against defendants for damages for wrongful seizure of his property and for the value or proceeds thereof. We find in the record the written opinion of Hon. Coleman Lindsey, Judge ad hoc, who tried the case. He has correctly stated the issues involved, the testimony and the law applicable. We can state them no better than he has done, and we therefore copy his opinion in full, and make it our own:

OPINION OF JUDGE LINDSEY.

“This case has already been before the Court on an exception of misjoinder, and some of the facts set out in the written opinion on that exception need not be repeated here.
“Plaintiff claims damages in the sum of $1635.44, itemized as follows:
Value of cotton seized and sold________$870.19
Value of cotton seed seized and sold 105.00 Loss of time in attending Court in the intervention proceedings in
No. 4200 ___________________ 50.00
Attorney’s fee in intervention in
No. 4200 ____________________________________________ 150.00
Attorney’s fee in these proceedings 150.00
Exemplary damages _____________________________ 250.00
Court costs in No. 4200________________________ 60.25
“The last item was abandoned by plaintiff during the trial for the reason that he already has judgment for this item.
“During the trial of the ease defendant made a tender to plaintiff of some $412.00, which tender plaintiff refused.
“That plaintiff is entitled to recover for the cotton seized by defendant and bought in at Sheriff’s sale by it, defendant does not deny. The dispute is over the amount of cotton so seized and sold and its value. Defendant denies liability on the other items.
“It at first appeared that there is a hopeless conflict in the testimony as to the amount of cotton seized, especially with reference to a so-called ‘lost bale,’ but, after a careful examination of the testimony, the Court has arrived at what it believes to be the true facts in this connection.
“Mr. A. D. Turner, an officer of defendant corporation, gives the compress weights and grades of five bales of cotton seized. His testimony on these points is not contradicted. He further testifies that this represents all the cotton seized on plaintiff’s farm. The pertinent facts with reference to these five bales seem to be as follows:
“(1) Bale ginned by plaintiff at Bonner’s gin and left at his place shortly after the seizure, alleged to weigh 525 pounds. Mr. Turner admits receiving this bale and gives the grade as middling and the compress weight as 513 lbs.
“(This is the so-called Tost bale’).
“(2) Bale on wagon at Miller’s gin at time of seizure, which plaintiff testified weighed 1325 lbs. Mr. Turner admits receiving this bale and gives the grade as middling and compress weight as 469 lbs.
“(3) Bale on wagon at Miller’s gin at time of seizure, which plaintiff testifies weighed 1610 lbs. Mr. Turner admits receiving this bale and gives the grade as strict low middling and the compress weight as 595 lbs.
“(4) Cotton in cotton houses and crib, picked by plaintiff, both before and after seizure, weighing 1474 lbs. Mr. Turner admits receiving and ginning this cotton, and gives the grade as low middling and the compress weight as 583 lbs.
“(5) Cotton picked by defendant after sale. Mr. Turner testifies this amounted to 1603 lbs. Plaintiff’s witnesses testify that it amounted to 1846 lbs. M!r. Turner admits receiving and ginning this cotton, and gives the grade as strict good ordinary and the compress weight as 596 lbs.
“The difference with reference to the first bale is very slight, and may be due either to shrinkage or to a difference in the gin scales and the compress scales.
“The difference in the second bale is greater. Taking the testimony of Mr. E. E. Miller, 1325 lbs. of seed cotton should give a bale weighing approximately 550 lbs. The same is true of the third bale, which, according to Mr. Miller’s testimony, should weigh approximately 670 lbs. But it is possible that the gin scales are not accurate, and, since the Court is convinced that the two bales mentioned came from the two loads of seed cotton at Miller’s gin, it is inclined to accept the positive and uncontradicted testimony of Mr. Turner as to the weights.
“The difference with reference to the fourth balé is very slight. Accepting Mr. Miller’s basis for calculation this bale should weigh 614 lbs. This difference may be due to shrinkage or inaccuracy of the gin scales or the scales used at plaintiff’s cotton house.
“There is considerable conflict with reference to the fifth bale. Accepting defendant’s testimony as true, this bale should weigh some 668 lbs. According to plaintiff’s figures, that there was 1846 lbs. of this cotton, it should have produced some 770 lbs. of lint. However, it must be borne in mind that this cotton was the last picked, and all the witnesses say that at least some of it was filled with sand and burs. This, with the reasons mentioned in connection with the other four bales, may account for the discrepancy.
“Accepting plaintiff’s contentions as correct, taking the weights as given by him, allowing nothing for shrinkage or inaccuracy of the gin scales and field scales, and allowing nothing for the sand and burs in the last cotton picked, would leave only 375 lbs. of lint cotton not accounted for. It is to be noted further that all these figures are based on Mr. Miller’s statement that he figures 1200 lbs. of half and half seed ectton will produce a 500-lb. bale. He states that this is only an estimate and will vary more or less.
“The Court is satisfied that the five bales of cotton mentioned, aggregating 2756 lbs., is all the cotton seized by defendant which was the property of plaintiff.
“This cotton was bought by defendant at Sheriff’s sale as seed cotton at 6.3 cents, it being estimated at 6553 lbs. Defendant contends that this is the value of the cotton and that plaintiff should not recover more than the sale price. The Court is of the opinion that plaintiff should recover what he would have received for his cotton if defendant had not seized it. On September 10th and 11th, 1925, the dates of the two seizures, plaintiff had picked four bales of the six bales raised on his place, one bale having been ginned and sold before the seizure. It is reasonable to assume that plaintiff could have picked and sold all of his cotton not later than October 15th, if he had not been molested. The first two bales graded strict low middling, and, if plaintiff had been allowed to continue his harvest undisturbed by a seizure, the Court is of the opinion that the entire crop would have been harvested before the rainy season began, and that the remaining two bales would have graded not lower than strict low middling, making a total of 1174 lbs., grading strict low middling.
“Mr. A. H. Ferguson, a cotton buyer and a disinterested witness, testified that on September 11, 1925, middling cotton was worth 22 cents in Minden, and on October 15th was worth 19-5/8 cents. The average for this period is 20-13/16 for middling. He further testified that strict low middling was worth about 1 cent less than mid-ling, or 19-13/16 cents.
“On this basis plaintiff is entitled to recover on this item as follows:
982 lbs. Middling cotton at 20-13/16 cents ....................................................$204.38
1774 lbs. strict low middling at 19-13/16 cents ______________1________________ 351.47
Total___________________________________________$555.85
“This Court is not inclined to allow any recovery for the cotton seed. There is testimony in the record to show that the seed from a bale of cotton is generally no more than sufficient to pay for the hauling, ginning and wrapping of the cotton, and it is so considered herein. This is based on the commercial value of the seed. It appears that seed suitable for planting is worth about twice as much as seed used for commercial purposes, but this value is somewhat speculative, and, in a suit of this nature, the commercial value appears to the Court to be the proper value to apply.
“Plaintiff’s claim of $50.00 for loss of time in attending Court is not established to the Court’s satisfaction, and his damage in this connection could, at best, be but very little.
“The last item of $150.00 for attorney’s fees in connection with plaintiff’s intervention in suit No. 4200 will be allowed. The case of Frank & Company v. John Chaffe & Sons, 34 La. Ann. 1203, is authority for allowing this fee, and, considering the services rendered by plaintiff’s attorney, the amount claimed appears very reasonable.
“The last item of $250.00 for exemplary damages is rejected. The Court is not of the opinion that defendant was prompted by any malice in seizing the property in question, but honestly believed such action was necessary for the protection of its rights.
“The item of $150.00 for attorney’s fees in these proceedings is also rejected, no authority being cited that would justify a recovery thereunder.
“Plaintiff prays for interest at the legal rate from September 21, 1926, and the Court is of the opinion he is entitled to recover this interest.
“The defendant Sheriff filed no answer, but it was agreed in open Court by counsel for plaintiff and counsel for defendant corporation, who is also the attorney of record for the defendant Sheriff, that the answer of defendant corporation shall stand as the answer of defendant Sheriff, and that whatever judgment may be rendered against the defendant corporation, shall also be rendered against the defendant Sheriff. As authority for holding the Sheriff as well as the seizing creditor liable, see the case of Tregre & Schexnayder v. Carter Packet Company, 132 La. 298, 61 So. 379, 45 L. R. A. (N. S.) 189.
'“For the reasons assigned, it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Porter Chatman, and against the defendants, Wren & Turner, Incorporated, and A. H. Phillips, Sheriff, in solido, in the full sum of Seven Hundred Five & 85/100 ($705.85) Dollars, with legal interest thereon from September 21, 1926, until paid, and all costs of this suit.
“Judgment rendered and signed in chambers by agreement of the parties hereto.”

Counsel for appellee moved to amend the judgment by increasing the amount. Counsel for appellants argued that the judgment is excessive. The record does not warrant any change.

The judgment appealed from is affirmed, with all costs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    No. 3552
    Second Circuit
    PHILLIPS v. CITY OF ALEXANDRIA MADERE v. CITY OF ALEXANDRIA BROCK v. CITY OF ALEXANDRIA
    (July 1, 1929. Opinion and Decree.)
    White, Holloman and White, of Alexandria, attorneys for Mrs. Mary O. Phillips, plaintiff, appellant.

      K. Hundley, of Alexandria, attorney for Sim Madere, plaintiff, appellant.
    Overton and Hunter, of Alexandria, attorneys for Mrs. Clara Brock, plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   PER CURIAM.

The City of Alexandria distributes and sells natural gas for domestic and other purposes, its distributing system consisting of mains, pipes, meters, cut-offs, etc., — all owned by it. One of its mains runs along Wheelock Avenue on which one of the plaintiffs, Mrs. Mary 0. Phillips, owns a tenant house, municipal number 532, which was piped for gas and connected with the city main at the curb by a service pipe.

On January 2, 1928, a roomer in this tenant house struck a match preparatory to lighting an oil lamp, when a. gas explosion took place which wrecked the house, killed one of the inmates and seriously injured two others. Mrs. Phillips, the owner of the house, and the two inmates who were injured by the explosion, brought separate suits against the city for damages. The three cases were consolidated for the purposes of the trial. Their demands were rejected; and they have brought the eases up for review.

Mrs. Phillips had her house piped for gas originally in the latter part of 1926. This was done at her expense by a plumber of her own selection, but under a permit granted by the city. She owned all pipe and fixtures, including the service pipe from the main at the curb to the house. When the house was piped and the service pipe laid, the city was notified of the completion of the work and thereupon the plumbing was inspected and approved by the city inspector. The house was burned, or partially so, in October or November, 1927, and was immediately rebuilt under a permit issued by the city building inspector, although no permit was applied for or granted by the gas department for repairs, changes or additions to the gas plumbing, pfesumably because the house was burned only to the floor and it was found that the gas piping was left uninjured. Upon the completion of the repairs to the house, Mrs. Phillips, the owner, leased it to Mrs. Pugh, who moved in during the latter part of December. As stated, no permit was granted for repairs or additions to the gas plumbing, and the city was not notified that any had been made, and the gas department was not requested to re-inspect the plumbing after the repairs to the house had been completed. During the time the house was undergoing repairs, the gas was cut off at the-main, but it was cut off prior to the burning of the house because the tenant at that time failed to pay the gas bill.

After Mrs. Pugh moved into the house, she used wood stoves for heating and an oil stove for cooking, but later decided to install gas stoves for heating and, to that end, purchased some two or three gas heaters from a dealer named Darby, who, on January 2, 1928, the day the explosion occurred, carried them to the residence, set them up and connected them with the gas pipes. Darby was not a licensed plumber and had no permit from the City Gas Department to install gas fixtures, as required by a city ordinance, and neither he, nor anyone else, notified the gas office that such fixtures had been installed. Immediately after the stoves had been installed and connected by Darby, Mrs. Pugh’s daughter, Mrs. Brock, telephoned the city gas office and requested that gas be turned on at municipal number 532, Wheelock Avenue, in the name of the tenant, Mrs. Pugh. The only reguest made was that gas be turned on. At about four o’clock, Mr. Kappel, city gas inspector, after finding that the fee for turning on the gas had been paid, went to the residence and turned it into the service pipe leading to the house through a valve or cock at the curb, which valve is under the exclusive control of the city. There is, however, another valve and cut-off on the service pipe at the point where it enters the house and is placed there for the convenience of the consumer, and is left under the control of the occupant of the house. Gas can be let into or cut off from the house through that valve by anyone, with the use of a wrench, after it has been turned on by the city through its valve cock at the curb.

When Mr. Kappel opened the valve at the curb, he went to the valve at the edge of the house and saw that it was closed, so that no gas could pass into the house, and immediately left the premises. After he left, someone — the testimony not showing who — opened the valve at the house and let the gas in, as the gas heaters were to be used. Between six and seven o’clock of the same day, Mr. Madere, while in the dining room, which adjoins the kitchen, with a door between, struck a match and a terrific gas explosion followed.

It is conceded by both sides that the gas which had accumulated in the house and which caused the explosion had escaped through an open, uncapped outlet in the kitchen, which neither Mr. Darby, who installed the heaters, nor any of the occupants of the house knew anything about. This opening had been left for the installation of a gas cookstove. Presumably, the tenant who had previously occupied the house left the opening uncapped when she moved from the premises.

These plaintiffs predicate their cause of action against the city upon the proposition that it was grossly negligent in two respects; first, that the City Gas Department had notice prior to the explosion that gas was escaping into the house and was asked to send its inspector at once, and failed to do so; and second, that if was negligence on the part of the City Inspector to turn gas into the service pipe without first ascertaining that all gas outlets in the house were closed..

It is conceded that in distributing and selling natural gas to its inhabitants, the City of Alexandria was exercising a private, corporate function, and therefore was on the same footing in law as an individual or private corporation and is liable for damages occasioned by the negligence of its agents and employees. Further, if it be true, as alleged and as counsel argue, that the city’s agents and employees were negligent in the handling of gas, there may be liability. On the other hand, if there was no negligence, there can be no liability.

Natural gas is an explosive and a highly dangerous substance, so that the city in handling it must be held to a degree of care commensurate with the danger. In view of that fact, if the employees of the city knew at the time the gas was turned into the service pipe at the curb that there was an uncapped gas opening in the house through which gas would escape, or if they became aware after it was turned on that gas was escaping into the house through such opening and made no effort to stop the flow and protect the occupants of the house, the city, we think, would be liable, even though it did not instáll the plumbing or the fixtures in the house and did not at any time connect with the piping or disconnect therefrom any plumbing fixtures.

In order to fasten liability on the defendant, it is alleged and counsel for plaintiffs now contend, that the city had actual knowledge prior to the explosion that gas was escaping into the house in some manner unknown to the occupants, and that no effort was made to stop the flow.” But they failed to prove that. The testimony offered in support of that point is not convincing. Mrs. Pugh’s daughter, Mrs. Brock, who is one of the plaintiffs, lived about two blocks away. She visited her mother during the afternoon, after the gas was turned on and after the gas heaters were installed and connected by Darby. She says she heard a strange noise about the house which she could not account for, and that she went back to her own home and from there called the gas office by telephone and told an employee, Mrs. Pefferkorn, that she thought gas was escaping at her mother’s home and to send an inspector at once. Her testimony that she did call someone and say something about the gas escaping is corroborated by two other persons who were boarding at her residence and who overheard what she said, but, of course, did not know to whom she was talking nor. what was said at the other end of the line. But Mrs. Pefferkorn emphatically denies that she received such call and such request. Other employees of the office testified that they had received no such call. In view of the emphatic denial of Mrs. Pefferkorn and the others that such a call was received, and further, in view of the answer which Mrs. Brock says she received to her request, we think Mrs. Brock was given the wrong number by the telephone operator and that as a matter of fact she did not talk over the telephone to anyone connected with the gas office. Mrs. Brock says that the person who answered the call said in reply to her request that they “could not go around peoples’ houses,” or “we do not send people in peoples’ houses.”

An answer of that kind coming from anyone connected with the city gas office would have been wholly inconsistent with the custom adhered to by the department, it being shown that in every case when a complaint of this nature was received, the inspector did go to the premises and make an inspection. Knowing such to be the rule and custom, it is not likely that Mrs. Pefferkorn, or anyone else in the office, would have given such an answer. She and the other members of the clerical force in the department testified that in all cases where complaints are telephoned in, the one receiving the call notes the same on paper and places the notation on the inspector’s “hook,” and that it was his custom to go to his “hook” immediately on coming in to see of there were any calls for him.

While Mrs. Brock’s testimony that she made some attempt, at least, to notify the gas office that gas was escaping at her mother’s home is corroborated, yet there are circumstances which indicate very strongly that she did not suspect that the strange noise which she heard was caused by escaping gas. It was about four o’clock when she was at her mother’s home and heard the noise. As a witness, she first said that she had no idea what it was. Evidently, ■ it made little or no impression upon her mind. If she had thought it was escaping gas, it is passing strange that she did not mention the fact to Madere, who was sitting in front of an open fire at the time she first went to the house and heard the noise. Mrs. Brock left the house immediately and did not go back until about seven o’clock when she found both her mQther and Madere sitting before the open fire, exposed to the greatest danger, if, indeed, gas was escaping into the house. She says she was informed by someone in the gas office three hours before her last trip to see her mother that the gas department would not send its inspector and she admits that she made no effort to have anyone else go. She knew, therefore, that nothing had been done and yet, in the meantime, did not have sufficient interest to warn her mother and Madere of the danger which she knew existed — if gas was escaping into the house where open fires were burning and oil lamps lighted. Not only that, but when she went back about seven o’clock to see her mother, she said not a word to either her or Madere about having suspected that gas was escaping. She not only permitted her mother and Madere to be exposed to the danger which she knew existed, but she exposed herself by walking into the house and remaining there until the explosion occurred. Mrs. Brock was asked to explain her strange conduct in this respect, but said she could not do so.

The testimony offered to show that the city had notice that gas was escaping into the house and was asked to make an inspection, falls far short of conviction and we hold, therefore, that it had no such notice.

The second point involves the question whether it was negligence on the part of Kappel, the gas inspector for the city, to turn the gas into the service pipe at the curb without first ascertaining that all the openings in the house were closed.

The testimony shows that the city does not engage in the plumbing business. It does not install plumbing fixtures nor connect nor disconnect them with gas piping. The owner of this property had it piped for gas at her own expense by a plumber of her own choice, and owned not only the piping in the house, but the service pipe as well. When Mrs. Pugh had Darby install and connect up her gas heaters, she notified the gas office that she was ready to have the gas turned on and requested that the inspector be sent for that purpose. The inspector was not called-upon to go into the house and we think, under the circumstances, it was not his duty to do so. If the inspector had been called upon to inspect the premises and had failed to do so, or if he had inspected them and overlooked an opening which was uncapped, we think he would have been negligent. But the only request made was that he turn the gas into the service pipe. Mrs. Pugh’s request that the gas be cut in was equivalent to a declaration that she was ready for it, and, if it be said that, under the rules and ordinances of the city, she had a right to call for an inspection, she waived that right by failing to make the request.

The gas was cut off originally because the tenant failed to pay the bill, and, while the inspector knew that the request to have the gas turned on again came from a different person, he was not required to anticipate that the former tenant or anyone else would leave one of the outlets uncapped. •

The case of Hebert et ux. vs. Baton Rouge Electric Co., 150 La. 957, 91 So. 406, 35 A. L. R. 245, is cited in support of the proposition that the gas company should see that all openings in a house are closed before turning on the gas. The holding in that case lends no support to plaintiffs’ contention, because the facts are altogether different. In the cited case, the plaintiff and others moved into an apartment house and the gas company was called upon to make the connection. Its inspector went into the apartment, looked into the kitchen for a gas stove outlet, but found none. But there was one uncapped and through it the gas escaped, causing the death of plaintiff’s child. A JIrs. Sicard was present when the connection' was being made by defendant’s workman and, after the gas was turned on, she noticed an odor of gas and called the workman’s attention to it. He assured her that the odor was from a gas pipe which he had opened. But the gas was escaping from an uncapped opening which, to quote from the opinion, “had been left open or uncapped by the workmen of the defendant company when they had disconnected the stove of the former tenants, some five months previously.” The court held that the defendant was at fault and said:

“Especially so, in view of - the admitted fact that the defendant company’s custom was not to cap outlets when disconnecting the gas service and removing fixtures, and of the further fact that the defendant company had kept a record of having removed this particular fixture.”

In the case at bar, the city’s employees did not disconnect, the fixtures of the former tenant nor did it install and connect those of the new tenant nor did they turn the gas into the house — but merely turned it into the service pipe so that it could he turned into the house in case the tenant desired to do so. As a matter of precaution and protection to property owners, the city by ordinance prohibits anyone from installing gas fixtures without a license and permit which are granted only after the applicant has been examined as to his knowledge with reference to such matters, and after specific instructions given by the city inspector. One of the specific instructions given by the inspector is that, after installing and connecting fixtures, the entire premises must be searched for other openings, and before leaving the premises, to ascertain if there are uncapped openings. Darby was not a licensed plum■ber and had no permit to install these fixtures, but, after the explosion, he did make application for a permit, which was granted. He himself testified that if he had been instructed by the city’s gas inspector previous to the installation of these fixtures as he was later when he applied for the permit,- he would have looked to see if there were any uncapped openings in the building.

It was not the city’s fault that Mrs. Pugh employed an unskilled, unlicensed plumber to connect her fixtures. It would be going too far, we think, to hold that it was the duty of the city’s employee to anticipate that a former tenant or anyone else would disconnect gas fittings and leave the openings uncapped.

Counsel for plaintiffs have cited many Louisiana cases involving injury by gas, but none of them are in point. For instance, they cited and quoted from the case of Feely et al. vs. National Packing Company, 141 La. 903, 75 So. 837. In that case the court found that the defendant company had been notified of a strange and unusual odor about the plant, suggestive of escaping gas, and, because no effort was made to locate the cause, it was held that defendant was liable.

We have read all the Louisiana cases cited, as well as those from other jurisdictions, and fail to find any case holding that it is a gas company’s duty on cutting gas into a service pipe, so that it may be used by the owner of the premises, to go into the building and ascertain whether there are any uncapped openings, in the absence of any suggestion or knowledge that there are such.

"We think this case is governed by the principle announced in the case of Okmulgee Gas Company vs. Kelly, 105 Okl. 189, 232 Pac. 428. We quote the following from that case:

“If the gas pipes and fittings are the property of the consumer, and there is no contractual duty resting on the gas company to inspect, the consumer, by application for gas service, assumes the burden of inspecting and maintaining the pipe and fittings on his property in a manner reasonably suited to meet the required service, and the company has the right to assume that these duties have been performed by the applicant.” See cases and voluminous notes found in McClure v. Hoopeston Gas & E. Co., 303 Ill. 89, 135 N. E. 43, 25 A. L. R. 250; Reid v. Westchester Lighting Co., 36 N. Y. 322 140 N. E. 712, 29 A. L. R. 1247; and Prestonsburg Superior Oil Gas Co. v. Vance, 215 Ky. 77, 284 S. W. 405, 47 A. L. R. 483.

For the reasons assigned, the judgments appealed from are affirmed, with all costs in both courts.


author: MOUTON, J.

text:
    No. 429
    First Circuit
    DE BRITTON v. BAKER ET AL.
    (April 13, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Borron and Johnson, of Baton Rouge, attorneys for defendants, appellants.
   MOUTON, J.

A. de Britton, J. R. Baker and V. P. Blake signed a note, in solido, September 8, 1926, in favor of the Union Bank and Trust Company of Baton Rouge, for the sum of three thousand five hundred dollars ($3.500.00), payable in one year from date.

A. de Britton, one of the three that signed the note, died since its execution. Plaintiff, Mrs. Annie Eliza de Britton, surviving widow of A. de Britton, bought the note from the Union Bank and Trust Company, and with due reservation of her rights on the note against the estate of her deceased husband, brings this suit against Blake and Baker for tlieir half thereon, a balance of fourteen hundred dollars ($1,400.00) on the note, with interest from November 1, 1027, and ten per cent (10%) attorney’s fees for which she recovered judgment in the district court.

Blake and Baker appeal.

The defendants first deny that plaintiff has any interest in the note, or is owner in due course; then plead want of consideration, and if any existed that it has failed as to respondents. They thereafter plead that they were induced to sign the note by A. de Britton for the purpose of raising funds to' drill an artesian well on a tract of land they had for sale for A. de Britton and H. M. Young with the view of selling water rights to prospective purchasers of lots of ground into which it was proposed to subdivide said tract of land and that from the proceeds which were expected to be realized from the sales of these water rights, the note would be paid or liquidated.

It is shown that Robert Y. de Britton, the son of plaintiff, as the agent of his mother, bought the note from the bank for plaintiff. There is therefore no merit in the defense that plaintiff has no interest in the note. The notations on the back of the note show that defendants, as appears from their individual signatures, made the following payments thereon: June 8, 1926, for their half interest one hundred and forty dollars ($140.00); on note and interest to July 1, 1927, two hundred and fifty dollars ($250.00); August 1, 1927, that it had been reduced, leaving a balance of fourteen hundred dollars ($1,400.00) against defendants, as established by the record.

There are also payments of interest by the defendants of nine 34/100 dollars ($9.34), September 3, 1927, October 5, 1927, and November 1, 1927, which appear from the notations on the back of the note. It is admitted by defendants that they made these payments. Robert Y. de Britton, who had the note for collection for the plaintiff, says defendants never denied their liability on the note, but on the contrary repeatedly promised him to pay it.

This is denied by defendants. They claim the different amounts they paid on the note as shown by the notations to which we have referred, were in reality, loans or advances they had made. If they were such, it is rather singular that the amounts carried in these notations should have been imputed precisely to the share of the interest which was due by defendants on the note. We rather believe that the payments were effected in discharge of their obligation, and were not intended as loans or advances to A. de Britton, who, the evidence shows, was a man of considerable wealth and had no need for such assistance. The defendants also say the payments were made to avoid a lawsuit with which they claim they were threatened by Robert Y. de Britton if the note was not paid, and that the advances which appear in the notations were made with the understanding that defendants would be reimbursed therefor from the sale of the water rights.

All of that is denied by Robert Y. de Britton. The evidence shows that the tract of land which Blake and Baker expected to subdivide into lots for sale belonged to A. de Britton and H. M. Young. Each purchaser of these lots was to be taxed one hundred dollars ($100.00) for water rights.

H. M. Young testifies that Blake and Baker wanted his co-owner in that tract of land to put up the money to bore the well from which the water was 'to be furnished to these prospective purchasers. He says, A. de Britton agreed to borrow the money from the bank with Blake and Baker to cover that expense and for which it was borrowed; that de Britton, Blake, Baker and himself were to pay the debt, each in the proportion of one fourth (%). He says, it was understood that they would collect all the money they could from the water rights, but that the note, when it fell due, was to be paid whether a sufficient amount or not was realized from the well. He acknowledges that he was an obligor on the note, and that he had paid his share to the A. de Britton estate. .

The testimony of Young, of other witnesses and corroborative facts show clearly that the defendants were directly bound to pay the note with A. de Britton, and independently of any agreement that it would be liquidated from the proceeds of the well. Even, if such a condition had been agreed to by A. de Britton as it is contended for by defendants, the proof shows that if the money collected for these water rights had been applied to the note instead of being diverted to the payment of the open account of the Plumbing Supply Company for connecting pipes, etc., the note would have been satisfied and the obligation represented by it, extinguished, or reduced to a much smaller amount.

The defendants contend that there was no consideration for the note. The record shows that defendants entered into a contract with A. de Britton and H. M. Young for the sale of a tract of land belonging to the latter. They were to receive under the terms of that contract ten per cent (10%) commission on the sale price of each lot, except on buildings erected by Young and de Britton on the land.

The minimum price per acre for the land was fixed in the contract at one hundred dollars ($100.00), upon which defendants were to receive, as commission, one-half of all sums in excess of fifty dollars ($50.00) per acre realized out of the sale of the entire tract.

By another clause in the contract it was stipulated that when enough money had been realized to reimburse de Britton and Young for any amount expended by them in improvements and to pay the sum of fifty dollars ($50.00) net for the whole tract, Young and de Britton would transfer to defendants an undivided one-half (%) interest in the land remaining unsold, and in the unmatured contracts or notes. It is therefore obvious that the defendants had a keen interest in promoting the sale of the lots into which this land was to be subdivided, and in furnishing water rights from the artesian well which was to be drilled.

To accomplish that purpose funds were needed, which led to the execution of the note in question. Evidently there was a consideration on the part of defendants for the execution of the note; there was also further consideration in the acquisition defendants were to make of the undivided one-half (%) interest in the land and in the unmatured contracts as soon as Young and de Britton were reimbursed for their improvements and the sum of fifty dollars ($50.00) per acre for the whole tract. In addition thereto was the commission to which- they were entitled under the contract. There is therefore no merit in the contention of defendants that they should be exonerated from the obligation on the note for want of consideration. They have failed to maintain this plea, and also the other contentions which they are urging to escape liability.

The judgment is therefore affirmed with cost.


author: LECHE, j.

text:
    No. 457
    First Circuit
    CRUMP v. LA. RY. & NAV. CO.
    (June 10, 1929. Opinion and Decree.)
    E. S. Muse, of St. Francisville, attorney for plaintiff, appellee.
    H. H. Kilbourne and Jas. H. Kilbourne, of St. Franusvil’e, attorneys for defendant, appellant.
    Chas. A. Holcombe, of Baton Rouge, attorney for Town of St. Francisville, intervener, appellee.
   LECHE, j.

Steve Crump, while employed as a laborer, was digging up a water main along the edge of a fifteen foot trestle upon which rested the tracks of the Louisiana Railway & Navigation Company, in the town of St. Francisville, in order to raise and salvage the cast iron pipe which was about three feet under the ground, when a carlead of earth was dumped over him from a railroad car. He was buried under the dirt, suffocated, and died before he could be extricated from his perilous position.

This suit is on behalf of Crump’s widow and his minor children, for their own benefit, and for the benefit of the town of St. Francisville as subrogee under the Employer’s Liability Act (Act No. 20 of 1914, as amended).

Steve Crump was in the employ of the town of St. Francisville at the time he was killed. He had frequently worked for the municipality, was a laborer and somewhat of a mechanic. He had a good deal of experience as a plumber and pipe fitter. He was thoroughly familiar with the water-work system of the town, in the repair of which ho had been frequently engaged. When it became necessary to dig and take up a water main extending along a trestle which spanned a street, part of a state public highway, inside the corporate limits of St. Francisville, he was engaged to do the work. The railroad company, defendant, was interested in filling up the roadway or street which passed under the trestle and the municipality was also interested in filling up this opening in order to keep water out of the low places on the edge of the town during high stages of the river. There was concert of action on the part of the town and of the railroad company. The question of filling this gap had previously and often been discussed between the town authorities and. the agents of the railroad company, and each knew what the other was doing. The pipe had originally been placed along this street to supply the railroad company’s depot and water tank with water, though at the time of the accident in which Crump lost his life, the railroad had ceased to use water from the municipality’s waterworks.

The pipe was on the north side of the trestle which as before stated, was about fifteen feet in height. During the month of April, 1928, the railroad company began to haul dirt on its cars and dumped the dirt on the south side of the trestle, though through some mistake or misunderstanding one carload of dirt was dumped on the north side. The next day the railroad company, knowing that the town had to or was about to dig up the pipe over which it had inadvertently dumped one carload of dirt, had the same removed by teams and scrapers so that the municipal authorities could get to the underground pipe and remove it. As soon as this earth was removed, Crump and two other laborers of the town started to dig a trench to get to the pipe and uncover it before they could raise it out of the ground. It was while Crump was engaged in these operations of disconnecting and raising the underground pipe that he was buried by a carload of dirt dumped from a railroad car just above him. The railroad company had already brought one or two trainloads of dirt which had all been dumped on the south side of the track. The train had brought its third load at about 11:30 o’clock, and the cars were each spotted over the trestle and the dirt unloaded on the south side, when one carload was inadvertently dumped on the north side immediately over Crump who was stooping down in the trench removing mud from around the pipe. There was another laborer near Crump and he was partly covered, but was pulled out without getting hurt. Crump, however, was completely deluged and he suffocated before he could be rescued.

The cars on which the dirt was carried are equipped with trap bottoms or sides, which are moved by means of levers. The cars may be emptied from either side. The brakeman who operated, the traps, knew by the position of the levers which side of the car to open and on which side of the track the dirt was to be dumped, but he says that he made a mistake and opened the wrong side, and thus caused the death of Crump with an avalanche of dirt, falling from a height of over fifteen feet.

The question in the case is whether the. defendant railroad company was guilty of negligence. A mere recital of the facts as we have attempted to relate them and as we understand them, is convincing of the fact that defendant was negligent. The railroad company and its train crew knew the nature of the work which the town was doing; the crew had on previous trips seen the town laborers engaged in digging the water pipe out of the ground, and both the conductor of the train and the brakeman saw, or could see, and should have seen the laborers ?nd employees of the town at work, from their respective positions.

Defendant also contends that Crump was guilty of contributory negligence. We do not think that he was. Crump was working in a perfectly safe position and had no reason to expect that the brakeman operating the dirt ear would make a mistake and dump a carload- of dirt over him. The railroad company’s crew had previously made the mistake of dumping a carload of dirt on the north side of the track, and with this error fresh in their minds, an error which cost the railroad company delay and expense, Crump had every reason to believe that the mistake would not occur a second time. We are decidedly of the opinion that the defendant was at fault and that it is liable,

At the time of his death Crump was about sixty years of age. His earning capacity is said to have been from fifty to sixty dollars per month. The jury assessed the damages at seven thousand two hundred dollars. We believe this amount is somewhat excessive and should be reduced to five thousand two hundred dollars.

For these reasons the judgment appealed from is amended and reduced to five thousand two hundred dollars, and as thus amended, said judgment is affirmed in all other respects; costs of appeal to be paid by plaintiff and appellee.


author: ELLIOTT, J.

text:
    No. 445
    First Circuit
    SUCCESSION OF RICHARD HARDY ET AL. (OPPOSITION OF INTERSTATE TRUST & BANKING CO.)
    (May 7, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)
    (July 8, 1929. Writ of Certiorari and Review Denied by Supreme Court.)

      Nugier and Gordy, of Abbeville, attorneys for administrator, appellee.
    Broussard and Samson, of Abbeville, attorneys for opponent, appellant.
   ELLIOTT, J.

Interstate Trust and Banking Company, holder of a note for $1000 executed by Richard Hardy and secured by a conventional mortgage on real estate owned by him in part as survivor of the legal community of acquets and gains which had existed between him and his first wife, Victoria Hardy, opposes the preference claimed by the administrator on his final account in the succession of Richard and Victoria Hardy for the payment of the funeral charges on account of the death of' Richard Hardy, out of the proceeds of the mortgaged immovables, over the said debt due opponent.

The opposition is based on the fact that as the law makes the $1000 due a widow left in necessitous circumstances payable out of the immovables of her deceased husband’s estate, by preference over charges on account of his funeral, and the law, Civil Code, art. 3252 (amended Act 242 of 1918), having made a debt due by a decedent, secured by a conventional mortgage payable out of the proceeds of the mortgaged immovable, by preference over the debt due the necessitous widow, the claim is that it follows as a necessary consequence that the debt due opponent, secured by conventional mortgage on the immovables herein sold, must be payable also out of the proceeds of the same, by preference over the debt due on account of the funeral charges of the said decedent.

The petition for the appointment of an administrator for the estate of Richard and Victoria Hardy alleges that the death of Victoria Hardy, nee Huntsberry, took place many years before that of Richard Hardy. That there was left at the death of Richard Hardy two small tracts of land with the improvements thereon, which belonged to the legal community of acquets and gains that had existed between them.

It is shown that Richard Hardy granted a conventional mortgage on these two tracts of land for $1000 in order to secure the payment of the note now held by Interstate Trust and Banking Company. These two tracts of land, sold at a sale made in the succession of Richard and Victoria Hardy for the purpose of paying succession debts, brought $790. With the proceeds of the same the administrator filed a final account providing for the reimbursement as privileged debts of $44.56 in redeeming the property from tax sale; paying a subrogee $73.20 expended in paying taxes on same; paying $65.95 rent, bearing a privilege on the house; law charges, $304.70; funeral charges, $301.60. These privileged debts, amounting to $790, leave nothing for the creditors having a mortgage. The final account and mortgage certificate show eleven judicial mortgages recorded prior to said conventional mortgage, the interest, attorney’s fees and cost of court thereon not counted, amounting in the aggregate to nearly $2000. The total mortgage indebtedness, counting the conventional mortgage and the two judgments recorded subsequent thereto, exceed in amount $3000.

It is shown that Richard and Victoria Hardy left no property, movables nor immovables, except the two small tracts of land sold as above stated, and that their succession is insolvent to the extent, that there was left nothing, except the two small tracts of land covered by said conventional mortgage.

In such a situation the cases Bauman vs. Armbruster, 129 La. 191, 55 So. 760, and Succession of Finegan, 135 La. 473, 65 So. 614, have no application. There was no opposition to the account, except that of Interstate Trust and Banking Company.

Opponent relies on the Civil Code, art. 3252 (amended Act 242 of 1918). This article now reads as follows:

“The privileges which extend alike to movables and immovables are the following:
“1. Funeral charges.
“2. Judicial charges.
“3. Expense of last illness.
“4. Wages of servants.
“5. Salaries of secretaries, clerks and other agents of that kind.
“Whenever the widow or minor children of a deceased person shall be left in necessitous circumstances and not possessed in their own right property to the extent of $1000.00, the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of the deceased husband or father, a sum, which added to the amount of property owned by them, or either of them in their own right, will make up the sum of $1000, and which amount shall be paid in preference to all other debts except those secured by the vendor’s privilege on both movables and immovables, conventional mortgages and expenses incurred in selling the property” * * *.

This article had been amended by Act 17 of 1917. The previous amendment, continuing after the word “property”, which concludes the above quotation, went on to say:

“* * * provided that any such conventional mortgage or mortgages shall represent money actually loaned, for not less than one year on the property described therein, at not exceeding six per cent per annum for interest, discount and charges.”

The provision quoted from, Act 17, Extra Session of 1917, had the appearance of a “special or exclusive right,” forbidden by Article 48 of the Constitution of 1913, and the Act 242' of 1918 was for the purpose of getting that provision out of the law.

Opponent, citing the Succession of Campbell, 115 La. 1035, 40 So. 449, contends that as the privilege of the widow left in necessitous circumstances was higher in rank before the amendment, than that accorded to funeral charges, that now the debt secured by a conventional mortgage being, by the amendment, made payable out of the proceeds of the mortgaged property, by preference over the claim of a necessitous widow, it follows that the amount due opponent must in reason be payable out of the proceeds of the mortgaged property by preference over charges arising as a result of the funeral of said Hardy.

The decision in Succession of Campbell carries out the terms of the concluding part of Article 3254, which provides that:

“The $1000.00 secured by law to the widow or minor children as set forth in Article 3252, shall be paid in preference to all other debts, except those for the vendor’s privileges and expenses incurred in selling the property.”

Article 3252, (amended ^.ct 242 of 1918) directs that the debt secured by a conventional mortgage shall be paid in preferance to the necessitous widow, but not in preference to all other debts. The preference is over the necessitous widow only. There is no provision giving preference to conventional mortgages over funeral charges in the matter of payment.

The law provides, Civil Code, art. 3252 (amended Act 242 of 1918) '3253, 3254, 3266 and 3269, that the funeral charges of the decedent are to be paid by preference over all other debts, out of the immovables left by him when there are no movables out of which the same can be paid. And the law, establishing the order in which privileges are to be paid, provides in express terms, that funeral charges are to be paid by preference over privileges of inferior rank and debts secured by a mortgage, when the decedent has left no ocher property, except the mortgaged immovables, out of which the same can be paid. Civil Code, aits. 3186, 3269, 3270, 3276.

The Constitution of 1921, art. 19, section 19, took cognizance of the difference between privileges and mortgages existing under the Civil Code, arts. 3184, 3186, 3278, 3342, and provided that no mortgage or privilege on immovable property should affect third persons unless recorded “except privileges arising upon the death of the owner of the property affected,” meaning that a privilege protecting the funeral charges shall exist without registry on the immovable property left by the deceased debtor. This constitutional provision affirms the preference claimed by the administrator for funeral charges over debts secured by conventional mortgages when not on account of the purchase price.

In the present case it is not claimed that the debt secured by the conventional mortgage in question protects the purchase price. If it did, it would bwve for protection a vendor’s privilege.

In the present case there is no widow left in necessitous circumstances, before the court claiming $1000; therefore if the law had contained no provision for the necessitous widow, the legal situation would be as it is in the case before the court. Supposing the provision for the necessitous widow to be not in the law, it is plain that the holder of a debt, secured by a conventional mortgage, not granted as security for the purchase price, would have no right under the law, to have paid to him the amount carried on this account for the purpose of paying the funeral charges arisen as a result of the death of the debtor.

The case was properly decided in the lower court.

Judgment affirmed. Opponent and appellant to pay the cos* in both courts.


author: LECHE, J.

text:
    No. 505
    First Circuit
    WELLINGTON STONE CO. v. THOMAS
    (June 28, 1929. Opinion and Decree.)

      Burns and Pierson, of Pouchatoula, attorneys for plaintiff, appellee.
    B. M. Harvard, of Hammond, attorney for defendant, appellant.
   LECHE, J.

Defendant bought from plaintiff through a salesman of plaintiff, one Davenport suite consisting of three pieces, a Davenport and two chairs, designed and upholstered to match.

The articles were .shipped out of Chicago and when they arrived at Hammond, were delivered to defendant who paid the freight thereon, $14.85. On unpacking the furniture in his place of business, defendant discovered for the first time that his order, as he understood it, had not been properly filled, and he at once instructed his bookkeeper to write to plaintiff and inform it of that fact.

The evidence seems clear to us that defendant wanted a Davenport suite and not a settee suite and that he so understood his order when he gave it to plaintiff’s salesman. It is shown by the testimony that in the New Orleans territory, a Davenport is understood to be a sofa, which, when opened, may serve as a bed, and on the other hand, it is contended that in the Chicago trade, a settee and a Davenport are ordinary sofas, and the terms settee and Davenport are interchangeable.

Be that as it may, the testimony convinces us that defendant did not get delivery of what he intended to buy, and that in making the contract there was not the aggregatio mentium necessary to constitute a valid contract of sale. Defendant bought a sofa-bed and plaintiff sent him a sofa-settee.

We do not believe that this defense was only an afterthought. Defendant did not produce copies of the first letters in which he made complaint to plaintiff, but did produce a carbon copy of a letter dated March 10, 1928, in which he reiterates the same complaint and in which he refers to the other letters previously written by him to plaintiff. The order was given about August 26, 1927, the furniture according to plaintiff’s bill was shipped September 30, 1927, and according to defendant’s claim for freight, was received in Hammond on October 7, 1927. The present suit was filed June 1, 1928.

There is nothing in the dates of the different events which occurred during the progress of this controversy, which might be construed as showing that the present defense is not made in good faith. Nor is there any testimony on the part of plaintiff contradicting defendant’s assertions as to the complaints which he claims to have made, or as to the time when he made such complaints.

It might be said that defendant should at once, have returned the furniture to plaintiff, as soon as he discovered the error, but on the other hand, he was out of pocket $14.85 for freight and he had a right to hold the furniture- until reimbursed this amount.

There is no law or equity to support defendant’s other claims for hauling and storage, and they are rejected.

According to our view of the testimony the settee suite still belongs to plaintiff and plaintiff is entitled to the return of the same upon reimbursing defendant the freight charges thereon, viz: $14.85.

For these reasons the judgment of the District Court is avoided and reversed and plaintiff’s demand is rejected. It is further ordered that defendant have judgment against plaintiff for $14.85, and that plaintiff pay all costs in both courts.


text:
    No. 506
    First Circuit
    BLADES v. ZINSEL
    (June 28, 1929. Opinion and Decree.)
    Mat J. Allen, of Amite, attorney for plaintiff, appellant.
    W. H. McClendon, of Amite, attorney for defendant, appellee.'
   LECHE, J.

The prayer of plaintiff’s petition is that a judgment in a former suit between the above parties, of date April 19, 1928, putting defendant in possession of certain property, be decreed null and void, and that plaintiff be recognized as the true and lawful owner of said property and as such entitled to the possession thereof. Defendant first except ed that plaintiff’s petition showed no cause of action, he then filed a plea of res adjudicata.

The plea of res adjudicata rests upon the attack on the judgment alleged as of date April 19, 1928. That judgment it is alleged, was rendered in a possessory action. Of course, a judgment in a possessory action need not be annulled or avoided before bringing a petitory action, nor can it stand as the thing adjudged .in a suit praying for the ownership of property, so that the prayer for annullment of the judgment and the plea of res adjudicata may be ignored.

Plaintiff’s suit is purely petitory in character. Other exceptions, pleading the prescriptions of-ten and thirty years were also filed, and finally defendant answered to the merits. These exceptions and the merits were tried at the same time. Judgment was rendered hy the District Court, maintaining the plea of prescription of thirty years and plaintiff has appealed.

We notice in the copy of the minutes in the record, that on December 21, 1928, exceptions filed came on for hearing, were tried, submitted and sustained. But that must be an error, for the only, judgment in the record and that forming the basis of this appeal is that signed on April 12, 1929.

The record shows that on trial of the case, the following notes appear at the close of the Clerk’s report of the taking of evidence:

“By the Court: Your plea of prescription was referred to the merits of the case, and I am of the opinion that any time the Court is satisfied that the plea is good, I think I can maintain the (plea and thaf is what I am going to do now. Therefore the plea of thirty years prescription is sustained at plaintiff’s costs.
Mr. Allen (attorney for plaintiff): If ■ the Court pleases, I object to that. The exceptions were referred to the merits, and we are entitled to finish the case and have judgment on the merits as well as the exception.
“Mr. McClendon (attorney for defendant) : Hasn’t the plaintiff closed ?
“Mr. Allen: But not in rebuttal. I wanted to offer more testimony in rebuttal of the testimony offered by the defendant, and object to the Court closing the case and passing on the plea of prescription without passing on the merits.
.“The Court: The Court will overrule the objection.
“Mr. Allen: We reserve a hill of exceptions to the ruling, and ask that we be •■permitted to offer certificates and attach them to the bill of exceptions and put them in the record.”

The record does not contain any bill of exceptions with certificates or other documents attached.

It is not clear from the excerpt above copied from the note of evidence, whether plaintiff wished to produce evidence to rebut the testimony offered on the plea of prescription or whether he wished the trial Judge after ruling on the plea of prescription to also rule on the merits of the case. It is obvious that if the Judge believed that the plea of prescription should be maintained, there was no necessity of his expressing any opinion on the merits of the case. But it may be that plaintiff wished to offer testimony to rebut that upon which the plea of prescription was sought to be sustained and in that event plaintiff had the right to produce and offer such evidence.

See: C. P. 477.

McKee vs. Godwin, 156 La. 728, 101 So. 120.

Pratt vs. McCoy, 125 La. 1040, 52 So. 151.

In this hazy condition of the record, we believe that it is more consonant with the fair administration of justice, that the case he remanded. It is certain that the case had not been finally submitted to the Court by plaintiff.

Eor these reasons, the judgment on appeal is avoided and set aside, and it 'is' further ordered that this cause be remanded to the District Court, to be taken up and proceeded with according to law and the views herein expressed, defendant to pay costs of appeal, other costs to be taxed on the termination of the suit.


author: MOUTON, J. MOUTON, J.

text:
    Nos. 454-455
    (Consolidated)
    First Circuit
    BOGUE-CHITTO GRAVEL CO., INC., v. POLICE JURY OF LAFOURCHE PARISH JOHNSON v. POLICE JURY OF LAFOURCHE PARISH
    (May 7, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)
    (July 8, 1929. Writ of Certiorari and Review Denied by Supreme Court.
    Howell and Howell, of Thibodaux, attorneys for plaintiffs, appellants.
    Spearing and Mabry, of New Orleans, and J. A. 0. Coignet, District Attorney of Thibodaux, attorneys for defendant, appellee.
   MOUTON, J.

The plaintiffs, in the two above entitled cases, sue on an open account for gravel furnished in 1923, to Harrison M. Weber, who they allege was under a written contract with the Parish of Lafourche, building a road for it along Bayou Blue.

It is alleged in the petition of the Bogue-Chitto Gravel Company, that in March, 1924, its itemized account was recorded in Lafourche Parish, and also that it had been duly filed with the Police Jury of that parish.

In the petition of David E. Johnson, the other plaintiff, it is not alleged that the account was recorded, but it is averred that the account had been filed with the Police Jury of which it had been fully advised prior to the payment of the balance in its hands to the surety company.

Both plaintiffs allege that on the 14th of November, 1927, the defendant Police Jury had in its hands a balance of two thousand forty-two 30/100 dollars ($2,-042.30), which was due to Harrison M. Weber under his contract with it, and that on said date this balance was paid over by defendant to the United States Fidelity and Guaranty Company, surety on the bond of Harrison M. Weber; that the payment was illegal, and for which the Police Jury is liable to petitioners with interest in the following amounts: To the Bogue-Chitto Gravel Company in the sum of four hundred fifty-seven 09/100 dollars ($457.09); and to David E. Johnson for three hundred four 12/100 dollars ($304.12), for which judgment is accordingly asked.

The defendant in each case filed an exception of no cause of action and the plea of one, two and three years’ prescription. The court overruled the exception of no cause of acfion in both cases, maintained the plea of prescription of three years and dismissed the suits.

The defendant, in this court, first insists on the maintenance of its exception of no cause of action. To maintain that plea we would have to amend the judgment appealed from by the reversal of the judgment in that respect. The defendant did not appeal from the judgment, plaintiff being the only appellant. It might be said that defendant could not appeal from the judgment overruling the exception of no cause of action. That may be legally true, but it should at least have filed here an answer to the appeal, asking for an amendment reversing the judgment overruling its exception of no cause of action, “as it is axiomatic that a judgment cannot be amended at the instance of the appellee, who has neither appealed nor filed an answer to the appeal, praying for an amendment.’’ C. P. 888; Nelson vs. Allen, 152 La. 753, 94 So. 379; Chopin vs. Freeman, 145 La. 972, 83 So. 210; Alfred Hiller Co. vs. Hotel Grunewald Co., 147 La. 129, 84 So. 520.

The exception is not before us for review, and we shall therefore confine ourselves to the plea of prescription, the sole issue presented.

The suits being on open accounts the prescription of three years is the only one applicable. C. C. 3538.

In the Bogue-Chitto Gravel Company case, suit was filed May 14, 1928, and service of citation was accepted May 18, 1928; and, in the Johnson suit, service of citation was made August 20, 1928.

The gravel was furnished by both plaintiffs to Harrison M. Weber, the road contractor, in May and October, 1923.

Section 2 of Act 224, page 406 of 1918, says that any party furnishing material for the repair or construction of any building or road, may file with the authority having the work done and record with the recorder of mortgages in the parish where the work is done, a sworn statement of the amount due him “and any payments made thereafter by said authority without deducting the amount of the claim so served on it, shall be at its own risk.”

Section 2 of said Act of 1918, was amended and re-enacted by section 3 of Act 271 of 1926, page 468.

The foregoing excerpt of Act 224 of 1918, wherein it refers to the filing, swearing and recording of the statement du<> the claimant, is repeated in section 3 of Act 271 of 1926, but which concludes in referring to the authority that does the work, as follows:

“And any payments made thereafter by said authority without deducting the amount of the claims so served on it, shall make said authority liable for the amount claimed.”

The language in the later Act is direct, explicit and was undoubtedly intended to clarify all doubts as to the liability of the authority which undertook to make such payments without first making the deduction of the claim served upon it.

We think, that the word “risk” used in the previous Act was sufficient to fix the responsibility of the authority making the payments in disobedience to the requirements of that statute, but if there could exist any doubts in that respect, these doubts, we think, have been entirely brushed aside by the imperative language of Act 271 of 1926, which fixed the liability of the authority making these payments in violation of the provisions of that statute.

In both cases it is alleged by plaintiffs that on November 14, 1927, the Police Jury, without providing for the payment of their claims, paid over to the United States Fidelity and Guaranty Company, surety on the bond of Weber, the road contractor, the sum of two thousand forty-two 30/100 dollars ($2042.30), the balance of the contract price which remained in its hands. This money, as we understand the law, was in the nature of a trust fund in the hands of the Police Jury and which it had no authority to turn over to the surety on the bond of the contractor before making the deduction of pending-claims when properly filed with the Police Jury prior to the payments referred to in the statutes.

The pleadings show that plaintiffs’ accounts were duly filed with the Police Jury prior to the payments made to the surety company. The' Police Jury having-made these payments in violation of the statute, plaintiffs had the right of recovery against it, unless their claims be prescribed as contended for by counsel for defendant in their brief.

The defense on this proposition is that plaintiffs’ right of action arose in July and October, 1923; that the service of citation having been accepted May 18, 1928, a period of much more than three years had elapsed between the time when the right of action accrued and the bringing of the suits, thus barring the right of plaintiffs to recover under the prescription of three years.

If the plaintiffs were suing Weber, the contractor, to whom the materials were furnished, this contention would be effective.

This suit is not, however, brought against Weber, but is levelled against the Police Jury for having made the payments complained of to the surety on Weber’s bond on the 14th of November, 1927, and in violation of its statutory obligations. It is when these payments were made by the Police Jury, at the date • alleged, in disobedience of law, and in violation of the rights of the plaintiffs that their right of action arose or accrued, and at which time prescription began to run. South Arkansas Lbr. Co. vs. Tremont Lbr. Co., 146 La. 61, 83 So. 378. Less than one year had elapsed from the time this right of action arose in favor of plaintiffs, November 14, 1927, to the institution of the suit in May, 1928. Hence, the prescription of three years cannot apply.

The judgment maintaining the plea of prescription must be reversed, and plaintiffs decreed entitled to recover on their respective claims in separate judgments.

It is therefore ordered, adjudged, and decreed that the judgment maintaining the plea of prescription in the case of Bogue-Chitto Gravel Company vs. the defendant, be and is hereby annulled and reversed; and, it is further ordered and decreed that said Bogue-Chitto Gravel Company have judgment against defendant in the sum of three hundred and four 12/100 dollars ($304.12), with five per cent per annum interest from the 14th of November, 1927, with all cost of suit.

(See syllabus in Bogue-Chitto Gravel Co., Inc., vs. Police Jury of Lafourche Parish proceedings.)

MOUTON, J.

It is ordered, adjudged, and decreed that the judgment appealed from maintaining the plea of prescription herein filed, be and is hereby annulled and reversed; and it is further ordered and decreed that plaintiff have judgment against defendant for the sum of four hundred and fifty-seven 09/100 dollars ($457.09), with five per cent per annum interest from the 14th of November, 1927, until paid with cost of court.


author: ODOM. J.

text:
    No. 2629
    Second Circuit
    BROOKS ET AL. v. HOUSE ET AL.
    (July 1, 1929. Opinion and Decree.)

      Dickson and Denny, of Shreveport, attorneys for plaintiffs, appellees.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendants, appellants.
   ODOM. J.

Annie Thomas House died intestate, leaving neither father nor mother nor legitimate descendants, but was survived by her husband, Joe House, and the plaintiffs, John Brooks and Corine Jackson, both duly acknowledged illegitimate children who were born before she was married to Joe House and are not his children.

The question involved is one of law and is whether the husband or the acknowledged, illegitimate children of the deceased inherit her share of the community property, under Article 915 of the Civil Code, as amended by Act 160 of 1920. The judge of the district court held that the property was inherited by the children, and the husband appealed to this jourt.

We certified the question to the Supreme Court and asked for instructions, under authority of Sec. 25, Art. VII of the Constitution. The opinion of the court is as follows:

“The case depends upon a correct interpretation of article 915 of the Civil Code, as amended by Act 160 of 1920, p. 250, and as compared with articles 918 and 919 of the Code. Article 915, as amended, declares:
“ ‘When either husband or wife shall die, leaving a father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership. In the event the deceased leave descendants his or her share m the community estate shall bs inherited -by such descendants in the manner provided by law. Should the deceased leave no descendants, but a father and mother, or either, then the share of the deceased in the community estate shall be divided in two equal portions, one of which shall go to the father and mother or the survivor of them, and the other portion shall go to the surviving spouse.’
“The question propounded bv the Court of Appeal is whether the word ‘descendants,’ as used in article 915 of the Code, means only legitimate descendants, or includes also acknowledged illegitimate children of the deceased. Our answer is that ‘descendants,’ as used in article 915 of the Code, means descendants who, under other provisions of the Code, would inherit from the deceased, to the exclusion of the surviving spouse. That means that, if the wife dies, and is survived by her husband and by acknowledged illegitimate children, the children inherit, to the exclusion of the husband, because article 918 of the Code declares that acknowledged illegitimate children inherit from their mother, if she leaves no legitimate descendants, to the exclusion of the parents and other ascendants or collateral relations; whereas, if the husband dies, survived by the wife and by acknowledged illegitimate children, the wife inherits the estate to the exe’nsion of the children, because article 919 of the Code declares that acknowledged illegitimate children inherit from their father only when he has left neither lawful relations nor surviving wife, ‘and to the exclusion only of the State.’
“The fact that article 915 of the Code, as amended, allows the surviving spouse to inherit the share of the deceased spouse in the community property only when the deceased spouse has left no .descendants, shows that it was rot intended that the surviving spouse should inherit that part of the estate of the deceased spouse in any case where a descendant heir of the deceased would, otherwise inherit the estate. That is made plain by the second sentence in the article, as amended, viz: ‘In the event the deceased leave descendants his or her share in the community estate shall be inherited by such descendants in the manner provided by law.’ That does not allow acknowledged illegitimate children of the husband to inherit his share of the community estate, to the exclusion of his wife, but it allows acknowledged illegitimate children of the wife to inherit her share of the community estate, to the exclusion of her husband, — ‘in the manner provided by law.’
“Originally, article 915 of the Revised Civil Code gave the surviving spouse only the usufruct of the share of the deceased spouse in the community property, when there was neither a parent nor descendant surviving. There was no such article in the Code of 1825. Articles 915 and 916, both relating to the usufruct in favor of the surviving spouse, of the share of the deceased spouse in the community property, were adopted as Sections 1 and 2, respectively, of Act 152 of 1844, p. 99. Article 915 in the revision of the Code, in 1870, read thus:
“ ‘In all cases when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed by last will and testament of his or her share in the community property, such share shall be held by the survivor in usufruct during his or her natural life.’
“The article was amended first by Act 57 of 1910, the only change being that the words ‘held by the survivor in usufruct during his or her natural life’ were changed to ‘inherited by the survivor in full ownership.’ The article was amended and reenacted again by the Act 80 of 1916, p. 201, so as to read, substantially, as it reads now, except that, in the second and third sentence of the act of 1916, the share of the deceased in the community estate was called ‘the estate.’ In the Succession of Greenlaw, 148 La. 255, 86 So. 786, it was held that the statute referred only to the community estate. The Act' 160 of 1920 was enacted while the Greenlaw case was pending in this court, and amended the article of the Code so as to leave no doubt that it referred only to the community estate. It is certain that, as originally enacted, the provisions of article 915 of the Code were not intended to give the surviving spouse the usufruct of the share of the deceased spouse in the community property in any case where there was a surviving descendant entitled to inherit the estate of the deceased. And so, when the original language, ‘shall be held by the survivor in usufruct during his or her natural life,’ was changed to ‘shall be held by the survivor in full ownership,’ the intention was that the full ownership should be inherited by the surviving spouse in those cases only where theretofore the usufruct only was vested in him or her.
“Our answer, therefore, to the question propounded by the Court of Appeal, is that the acknowledged illegitimate children of the deceased are entitled to inherit her share of the community estate, to the exclusion of the surviving husband; — in other words, that the judgment of the District Court is correct and should be affirmed.”

The judgment appealed from is affirmed, with all costs.


author: WEBB, J.

text:
    No. 3483
    Second Circuit
    RAPIDES PACKING CO. v. BOURGEOIS ET AL.
    (July 1, 1929. Opinion and Decree.)

      Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    Hawthorn and Stafford and J. L. Pitts, Jr., of Alexandria, attorneys for defendants, appellants.
   WEBB, J.

The Rapides Packing Company, Inc., Rapides Grocery Company, Inc., and Henry B. Grady were ordinary creditors of R. M. Bourgeois of Rapides Parish; the packing company was the first to file suit against the common debtor, and while that suit was pending and before issue was joined by default or otherwise, the grocery company and Grady procured confessions of judgment from Bourgeois for the amount of their claims, and, on the same date, filed suit against the common debtor on the confessions, and judgments were rendered thereon on the same date and executions issued on the judgments, under which the sheriff of Rapides parish seized the property of Bourgeois. On the day following the seizure, the packing company amended its petition and obtained an attachment against Bourgeois, under which the sheriff attached the same property which had been seized under the executions issued on the judgments of the grocery company and Grady, and a short time thereafter the packing company filed suit against Bourgeois, the grocery company, Grady and the sheriff, to revoke and annul the confessions of judgment made in favor of the grocery company and Grady, and the judgments rendered thereon, as having been made in fraud of creditors, and prayed for judgment accordingly, and for judgment ordering the grocery company and Grady to restore and refund any property, money, advantage, benefit, etc., obtained by virtue of the judgments and proceedings had thereunder, and that same be applied to 'the payment of the claim of the packing company against the common debtor.

Pending trial the property which had been seized and attached was sold under an agreement of the parties and the proceeds held by the sheriff and thereafter judgment was rendered in favor of the plaintiff in the suit of the packing company against Bourgeois, for the amount claimed, sustaining the writ of attachment and recognizing the privilege resulting therefrom in favor of the packing company on the property seized, and on trial of the action to revoke and annul the confessions of judgment and judgments rendered thereon, judgment was rendered in favor of plaintiff, the packing company, avoiding and annulling the confessions of judgment and ordering the proceeds of the sale, to the extent of plaintiff’s claim against Bourgeois, paid over to the packing company, and defendants grocery company and Grady appeal.

There is not any quest-ion raised as to the sufficiency of the judgment, and considering it in connection with the judgment sustaining the writ of attachment in the suit of the packing company against Bourgeois, the effect of the decree annulling and avoiding the confessions of judgment and the judgments rendered thereon was to set aside the seizure made in execution of such judgments, in so far as plaintiff’s rights were affected, and the proceeds of the sale of the property, to the amount of the claim of the packing company against Bourgeois, passed to the packing company under its judgment sustaining the attachment against Bourgeois (see, Newman vs. Baer, 50 La. Ann. 329, 23 So. 279; Marx vs. Meyer, 50 La. Ann. 1229, 23 So. 9231; and considering that the revocatory action brought by the packing company was a means by which that company sought to have its privilege on the property, resulting from the attachment, recognized as superior to the privilege resulting from the seizure under execution, and viewing the judgment in the revocatory action as having that effect, we consider the grounds urged by the appellants for the reversal of the judgment.

Appellants contend that as it was not claimed that Bourgeois was not justly indebted to them for the amounts for which he confessed judgment, and as the law does not prohibit a debtor, although he is insolvent, from confessing judgment', plaintiff carried the burden of proving that the confessions were procured and made with the intention and purpose that defendants would seize the property of the debtor prior to or before other creditors could do so, and thereby obtain a privilege or right to be paid by preference and priority over other creditors of the debtor, and that the evidence failed to establish any such facts, but, on the other hand, that the confessions were made and obtained in order to enable defendants to share ratably with plaintiff in the distribution of the proceeds of sale of the debtor’s property; and it is further contended that the evidence failed to establish that Bourgeois was insolvent or, if so, that defendants had knowledge of his insolvency.

Considering the record with relation to the questions of the insolvency of Bourgeois and knowledge of defendants, the latter, in their answer, admitted that they had seized all of the property of Bourgeois, which, they alleged, had been sold at its value of one hundred seventy-five dollars; and, it being conceded that the indebtedness due the parties here was in' excess of seven hundred dollars, and the evidence showing that defendants, at the time they learned that the packing company had sued Bourgeois, had discussed the advisability of proceeding against Bourgeois in bankruptcy, in order to avoid the result which they apprehended would follow from the fact that the packing company was the first of the creditors to file suit, and would be the first to seize the debtor’s property.

The facts admitted show that the amount of his debts exceeded the value of his property on the date when the value of his property was fixed by the sale, and at that time Bourgeois was insolvent (article 1885, Civil Code), to the knowledge of defendants; and, it not being shown that the property of Bourgeois had depreciated in value during the intervening period of fifteen days, from the date of the confessions to the date of the sale, and defendants having considered the question of solvency of the debtor at the time of the confessions, the presumption is, in the absence of other evidence as to the solvency of the debtor, that he was insolvent at the time he confessed judgment, and in the absence of any statement of defendants that they did not know of the insolvency of Bourgeois at that time, we think the. circumstances warrant the conclusion that defendants knew of the insolvency of the debtor at the time he confessed judgment. (DeBlanc vs. Martin, 2 Rob. 38).

Conceding that the mere confession of judgment by an insolvent debtor for an indebtedness justly due does not, of itself, show an intent to give an unfair preference, or is not, of itself, such an act, within the meaning of the law, under which the creditors of an insolvent debtor are given the right to revoke “all acts done by a debtor with the intent of depriving his creditor of thé eventual right he has upon the property of such debtor” (article 1969, Civil Code), however it is a badge of fraud, and considered with the evidence showing that the confessions had been procured in view of the fact that the packing company had filed suit against the debtor and in apprehension of the packing company being the first to seize the property of the debtor, and that defendants had immediately proceeded to obtain judgments on the confessions and seize all of the property of the debtor, which was not of sufficient value to pay his debts, and with the fact that Bourgeois had refused to confess judgment on the claim of the packing company, shows, we think, that the confessions were procured and made with the intent and purpose that defendants would proceed expeditiously and seize the debtor’s property; and considering that a privilege follows from the seizure, we think it must be held that the confessions were procured and made for the purpose of giving the grocery company and Grady a right to be paid by preference and priority from the insolvent’s property over other creditors, and was therefore a constructive fraud and subject to be revoked (articles 1984, 3360, Civil Code; Marx vs. Meyer, supra; Bank of Patterson vs. Urban Co., 114 La. 788, 38 So. 561; Swift & Co. vs. Bonvillian, 139 La. 558, 71 So. 849; Swain vs. Kirkpatrick Lumber Co., 143 La. 30, 78 So. 40, 20 A. L. R. 665; Ventrilla vs. Tortorice, 160 La. 516, 107 So. 390); and we do not think the fact that defendants were willing or offered to share the proceeds with plaintiff, affects the situation.

When sued defendants did not waive the privilege which resulted from the seizure, nor did they ask that the proceeds of the sale of the property be distributed among the creditors, but asserted a right to be paid by preference; and if it be conceded that the confessions were made in order that the property of the insolvent could be ratably distributed among his creditors, defendants asserting a right to be paid by preference, are not in a position to urge such purpose.

The judgment is affirmed.

ODOM, J., concurs.

REYNOLDS, J., dissents.


author: JANVIER, J.

text:
    No. 10,966
    Orleans
    SOUTHERN BUILDERS’ MATERIAL CO., INC., v. FOTO
    (May 27, 1929. Opinion and Decree.)
    R. W. Leche, of New Orleans, attorney for plaintiff, appellee.
    T. S. Walmsley and Alvin R. Christovich, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues A. Foto .and his surety for $706.80, alleging this to be the amount expended in the completion of a subcontract, which the first named defendant had undertaken to perform, and on which subcontract he is alleged to have defaulted.

The Louisville & Nashville Railroad Company, being in need of an additional freight shed, contracted with Doullut & Williams Company, Inc., for the construction thereof. These general contractors sublet to plaintiff a portion of tlie work and plaintiff in turn contracted with Foto, who conducted his business as the Louisiana Contracting Company, for the erection of certain steel rolling doors which were included as a part of the contract which plaintiff had undertaken to perform. The price to be paid to Foto under this subcontract was $1,680.

The Fidelity and Casualty Company of New York became surety for Foto on this subcontract.

Plaintiff alleges that it soon became apparent that Foto was not completing the work with contemplated rapidity and that in fact, Foto’s neglect of the work amounted to an abandonment of the contract. It is also claimed that the work which had been done up to that time was, in many respects, defective.

Plaintiff also alleges that on several occasions Foto was warned by registered letter that the work done was unsatisfactory and that it was being unduly delayed, and that, finally, plaintiff, having been warned by the general contractors that further delay would render it necessary that they take over and complete the work undertaken by the subcontractor, put defendant Foto in default and made a new contract for the uncompleted portion of the work.

It is alleged that in completing the work an expenditure of $1275.12 was required, which, added to the amount which had already been paid to Foto or for Foto’s account, brought the total amount to $2386.80, or $706.80 more than the contract price. It is for this amount that plaintiff sues.

Foto resists payment and, in reconvention, claims the balance which had not been paid him under the subcontract. He maintains that the work was being properly and expeditiously performed and that there was no necessity or justification for terminating his contract. He further contends that he was not properly placed in default.

The surety joins in these defenses and, in addition thereto, contends that so far as it is concerned the rights of. plaintiff as against it have been lost by anticipation of payments and by unauthorized consent to changes in the contract.

We have no hesitancy in saying that the evidence convinces us that the work was not being conducted with reasonable promptness. Foto was beset by labor difficulties arising in tlie main as a result of his own financial embarrassment and • the consequent uncertainty on the part of his employees as to whether they would receive their wages.

He claims that the contention that the work was being delayed was not made in good faith but resulted from a sudden demand made by the railroad company for more speedy completion. Whatever may have been the motive for demanding prompt completion of the work, we are certain that Foto was seriously behind hand in the performance of his contract and that plaintiff was amply justified in its action.

That the work, which up to that time had been completed, was in many respects defective is manifest.

For both of these reasons plaintiff was within its rights in taking over and arranging for the completion of the balance of the work and for the correcting of the defects which already existed.

As to the contention that Foto was not placed in default we think that the record shows the contrary.

As to the surety the situation is different. The contract required that no payments should be made until the work was approved and accepted by the chief engineer of the owner. ■ The record teems with evidence to the effect that payments were made by plaintiff without the requirement of such approval. Mr. Smith, president of plaintiff company, testified as follows:

“Q. Now, do you mean to tell me that, when you had this contract in that language recorded in the Mortgage Office, that you paid these people $700.00 before those doors were accepted?
“A. Yes, because there was no question that they had done some work on that.”

It is conceded that the surety did not know of or . consent to these anticipated payments.

It is argued that these payments were made for the benefit of the surety and that had they not been made Foto could not have gone on with the work. Were this argument sound it would be applicable to practically all cases of anticipated payments.

The surety would, no doubt, have been in a better situation had it known in the beginning of the financial condition of the principal for it could then have taken over the work itself. At all events the law is well settled that:

‘‘The Surety has the right to stand on the terms of his contract. The creditor cannot make any change, though beneficial to the surety, under the penalty of releasing him.” McGuire vs. Woolridge, 6 Robinson 47.

It is also contended by Foto that in completing the work plaintiff was not overly careful to keep down the cost. It does seem strange that so large a sum as $1275.12 was necessary to complete a contract, of which quite a large part was already done, and which had originally been undertaken for $1680. However, there is no evidence, except by inference, that the new contract was unreasonable and in view of the testimony justifying it, we cahnot hold otherwise than that it was fair.

The trial court rendered judgment for plaintiff as prayed for on the main demand and rejected Foto’s reconventional demand, and it rejected plaintiff’s claim against the surety.

We think that the judgment rendered was correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed; all costs to be paid by defendant Foto.