author: Nicholls, C. J. Watkins, J.

text:
    No. 11,758.
    Mrs. Emma Brownson vs. William F. Weeks et al.
    The wife may, after the death of the husband, ratify the act by which she had bound herself and her property for his debt during his lifetime. The nullity of such act is only absolute in this sense that she can not ratify it as long as she is under marital influence. The ratification may be express or tacit. Lafittevs. Lelogny, 3B An. 658.
    In executed contracts which may be tacitly ratified a presumption of ratification results from silence and inaction during the time fixed for prescription.
    The prescription of five years, under Art. 3542, C. C., applies to an action brought by a wife to set aside a j adicial sale which had been made during her husband’s life, in enforcement of a mortgage granted by her to secure his debt. Vaughn vs. Christine, 8 An. 830. Prescription commences, as fixed by Art. 2221, C. O., from the date of the dissolution of the marriage.

      Watldns, J., Concurring. The prohibition contained in R. C. C., Art. 2398, does not apply to and is not founded upon public order. It is only a personal statute; founded exclusively upon the personal relations between husband and wife, and resulting from marriage under our law. It establishes an incapacity to contract, which, though absolute in a certain sense, and so long as the marital influence continues, is, lilre the incapacity of a minor, voidable only, and may be the subject of ratification, whether expressed or implied, after marital influence has ceased

      APPEAL from the Seventeenth Judicial District Court for the Parish of St, Mary. Allen, J.

      J. Sully Martel and Branch K. Miller for Plaintiff, Appellant:
    Where the legality of a transaction depends, not on the nature of the transaction but on the capacity of the party to contract, the rule as to innocent third persons has no application. 5 N. S., 55; 5 An. 495.
    As to the incapacity of the wife to bind herself, that she can not be estopped; when property is sold by her in violation of the prohibitory law, under which she can not become liable for her husband’s debt, the rule governing third persons does not apply. 34 An. 123; 7 N. S. 64; 31 An. Y34; 34 An. 288; 15 An. 569; 1 An. 428; 36 An. 824; 32 An. 1023; 42 An. 951; 29 An. 75, 123; 37 An. 209; 24 An. 251; 41 An. 494, 649; 12 An. 853; 33-An. 1008; 14 An. 169; 9 An. 589; 2 An. 756; 33 An. 1010; 45 An. 373; 21 An. 567, 655; 28 An. 855; 8 Robinson, 435; 14 An. 587; 31 An. 684; 33 An. 170; 45 An. 75; 44 An. 880.

      Gilbert L. Hall and Fenner, Henderson & Fenner, for Defendants, Appellees:
    The insufficiency, or even the the total absence, of judicial authorization, does not of itself involve the nullity of a contract of loan and mortgage made by a married woman with the authorization of her husband. The only effect of such absence is to shift the burden of proof on the question as to whether the loan was for the benefit of the wife’s separate estate. Darling vs. Lehman, 35 An. 1188, and authorities cited.
    Nullities in the onerous contracts of married women, resulting from the contravention of laws made solely for their protection, are not absolute in such sense as to authorize the disregard of such contracts, or to permit them to be collaterally invoked.
    They are perfectly susceptible of ratification by the married woman after her disability is removed, and such ratification is a “ presumption juris et de jure from silence and inaction during the time fixed for prescription.” Vaughan vs. Christine, 3 An. 328; see also 13 La. 389; 5 An. 369; 18 An. 152; 33 An. 169.

      Such contracts and titles to property based thereon can not be assailed until their nullity has been judicially decreed in a direct action brought for that purpose. Delaspare vs. Warner, 14 An. 413; 10 La. 269; 24 An. 445; 1 An. 38; 6 Rob. 100.
    This is an action for the nullity and rescission (1) of the note and mortgage of the plaintiff, a married woman; (2) of executory proceedings taken in execution thereof; (3) of the judicial sale made thereunder; (4) of the sale made by the purchaser to the defendant, Weeks. The petitory demand for the property is merely conditional and consequential on the decree of the nullities prayed for.
    The action is, therefore, one “ for the nullity or rescission of contracts and other acts,” within the precise letter and meaning of the first clause of Art. 3542, Rev. C. 0., which prescribes such actions by five years.
    This prescription was suspended during the coverture of plaintiff, but began to run from her husband’s death, which occurred on March 17, 1887, while the action was only brought in September, 1893. The plea of prescription was properly sustained.
    It is elementary law that where suit is brought to annul a title to immovable property and there are previous titles intervening, which must also be annulled, the parties to such prior titles must be brought into the suit before the relief'can be granted. Mrs. Caroline Brownson, who sold to Weeks under full warranty, held the property as purchaser at the judicial sale made under the executory proceedings on the note and mortgage of plaintiff, and is an indispensable party to this suit, in whose absence plaintiff could, in no event, recover.
    A sale under executory process is a judical sale. Weeks, whose perfect good faith is fully established and not even questioned, bought on the faith of a recorded title in his vendor derived from a judicial sale, and is entitled to the benefit of the settled rule that the purchaser at a judicial sale is not bound to look beyond the jurisdiction of the court which ordered the sale. If the court had jurisdiction to order the sale, that is sufficient. Webb vs. Keller, 39 An. 67, and authorities there cited.
    Argued and submitted, April 9, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 3, 1895.

      Plaintiff brings this action for three several tracts of land, which are in possession of the defendant. She sets up title in her from one Ipigenié Frere, wife of Gabriel Leclerc Fuselier, by a donation inter vivos, made November 13, 1869.
    That under improper marital influence, and without any consideration enuring to her or to the benefit of her separate property, but to secure a debt due by her husband she executed a mortgage to a Mrs. Catharine Stouff.
    That to pay this mortgage the property now in controversy was sold, and purchased by the mother-in-law of plaintiff, who subsequently sold it to the defendant.
    The District Court rendered judgment in favor of plaintiff against the defendant for the ownership and possession of the third tract referred to in plaintiff’s petition, reserving to her a right of action for fruits and revenues, but sustained defendant’s plea of prescription and rejected plaintiff’s demand in respect to the two tracts mortgaged by her to Mrs. Stouff. It condemned defendant to pay the costs. Plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant moves for a dismissal of the appeal, alleging that after the rendition of the judgment appealed from, which condemned the defendant to pay costs, plaintiff and appellant voluntarily executed the judgment by causing a fi. fa. to issue for the payment of the costs. The fi. fa., which issued, was not at the instance of the plaintiff, but of the sheriff.

The appeal is maintained.

The attack made by plaintiff upon defendant’s title is based upon the claim that the note and mortgage which she executed in favor of Mrs. Stouff, were null and void, for the reason that the debt which she then recognized as being a debt due by herself to the mortgagee (that for which the note was given), was due, not by her, but by her husband — that her husband was at that time already indebted to Mrs. Stouff on past transactions, and that, in and by the act of January 20, 1874, she bound herself and her property for her husband’s debt, in violation of Art. 2398 of the Oivil Oode. That Mrs. Stouff was necessarily aware of that fact, and that third parties were placed upon their guard, as to the character of the transaction, by the certificate of the' judge, which was annexed to the act as furnishing evidence of the fact that she was then dealing in respect to her separate affairs. That this certificate was not only stale, it having been executed as far back as March 1, 1872, while the act of mortgage was passed in January, 1874, but there was a variance, both as to the amount to be borrowed and the property to be mortgaged. Plaintiff declares that she was made to execute the note through marital influence and coercion, and that by the same influence and coercion, and the representations made to her by her mother-in-law at the time, she was prevented from interposing legal obstacles to the enforcement of the mortgage upon her property. That her mother-in-law induced her to believe that the enforcement of the mortgage, and the purchase herself of the property, was necessary for the protection of the plaintiff from the vexatious pursuit of her husband’s creditors, and her inaction was based upon a reliance of the truth of that statement. The plaintiff declares the value of the property in defendant’s possession to be fifteen thousand dollars, and she avers that she is entitled to fruits and revenues at the rate of two thousand dollars per year. The prayer of her petition was that “Mrs. Catherine Stouff and William F. Weeks be cited, and that after proceedings there be judgment in favor of petitioner, decreeing that the note and mortgage * * * be decreed null and void, and that the sale of her property mortgaged, made in execution of said mortgage, be annulled and set aside; that the title of William F. Weeks be therefore annulled, and that she be decreed the lawful owner of all the property herein described, and be ordered placed in possession of the same,” etc.

Mrs. Catharine Stouff answered, admitting that she knew the nature of the debt secured by the mortgage sought to be annulled, but denying all the other allegations of the petition.

Wm. F. Weeks pleaded the general issue, and set up in defence that he was a purchaser in good faith from Mrs. Caroline Brownson; that he had been in continual possession of the property ever since his purchase: that he had made valuable improvements upon the same. He pleaded the prescription of one, two, three, five and ten years against plaintiff’s demand, and prayed in the event of plaintiff’s recovering the land that judgment be rendered in his own favor for the improvements.

The first question which plaintiff discusses is the prescription of five years under Art. 3542 of the Oivil Oode, which was invoked by the defendant. She contends that if any prescription be applicable, it is that provided for, not in Art. 3542, but in Art. 2221 of the Civil Code.

Art. 2221 of the Civil Code declares that: “In all eases in which the action of nullity or of rescission of an agreement is not limited to a shorter period by a particular law — that action may be brought within ten years. That time commences, in cases of violence only, from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered, and for acts executed by married women not authorized, from the day of the dissolution of the marriage or of the separation. With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and, with regard to acts executed by minors, only from the day on which they became of age.”

This article is found in the Oode, under the title of “ Conventional Obligations;” sub-title: “Of the Action of Nullity or Rescission of Agreements,” and corresponds with Art. 1304 of the Oode Napoleon.

Art. 3542 is found under the special title of “ Prescription,” and is as follows:

“The following actions are prescribed by five years:

“ That for nullity or rescission of contracts, testaments or other acts.

“ That for reduction of excessive donations.

“ That for the rescission of partitions and the guarantee of portions.

“ This prescription only commences against minors after their majority.”

It will be seen that the latter article provides a much shorter pre - scription for action of nullity and rescission than that fixed by the first.

It is obvious that there is some sweeping class of actions of nullity and rescission which it was contemplated should not be governed by the provisions of Art. 2221, but should be barred by the prescription of five years. The difficulty is in ascertaining to what actions Art. 3542 applies.

Appellant calls our attention to the case of Mulford vs. Wimbush, 2 An. 443, in which this court held that an action to annul or rescind a contract on account of error, fraud or violence, was prescribed only by ten years from the day on which either was discovered, and in case of violence only from the day on which the violence ceased, and that the provisions of Art. 3507 (now Art. 3542) of the Oode, applies only to cases not included in Art. 2218 (now Art. 2221). She also refers us to State vs. Railroad Co., 34 An. 951.

She next claims that the present suit is purely a petitory action; that the note and mortgage, under which the property was sent to sale by Mrs. Caroline Brownson, were absolute nullities, as was the sale made in enforcement thereof; that there was no necessity to attack the sale or to make Mrs. Caroline Brownson, the purchaser at the sale, a party to these proceedings.

We are of the opinion that the note, mortgage and sale were not absolute nullities. In Lafitte vs. Delogny, 33 An. 665, where the precise question of the character of the nullity resulting from the mortgage by a wife of her property to secure the debt of her husband was submitted to us, we declared that it might be classed as one of those which resulted from the incapacity of the wife growing out of the relation she bears to her husband. After an examination of the whole subject, we held that the mortgage which in that case had been granted by the wife was one susceptible of being ratified after the death of her husband, and that it had, in fact, been so ratified.

The court assimilated the particular contract to which the wife was forbidden to enter into without the consent of her husband, and referring to Art. 1786, Civil Code, which declares that the unauthorized contracts made by married women, like the acts of minors, may be made valid after the marriage is dissolved either by express or implied ratification, said “that in the power of ratification thus conferred it saw no distinction made in the contracts which might be ratified, and no limitation of the power to ratify to any particular class of contracts.”

It is said that when the law declared that the wife could not bind herself for' her husband or become surety for his debts, this was to protect her against acts resulting from her dependence on her husband, and that it would not spring into life or obtain vitality unless the wife, emancipated from marital authority, and restored to her full and complete capacity to contract, chooses in the exercise of her freedom to ratify it, and by such ratification endow with being a contract which, up to that time, had remained dormant, or never existed. Citing the maxim, “ ratione cess ante cessat lex,” the court treated the nullity in the contract as one arising from a relative nullity of “ capacity ” in the wife, and in so doing it was in accord with Fuzier-Herman under Art. 1108, O. N., citing Laurent, who says: “ L’incapacité purement civile d’une des parties, au contraire, peut rendre la convention annulable, mais non inexistante; ce dernier effet ne serait produit que s’il s’agissait d’une incapacité naturelle de consentir, se confondont avec l’absence deeonsentment.” Laurent, Vol. 15, n. 454. The same author, referring to the prescription of nullities which could be invoked under Art. 1304 of the Code Napoleon, which corresponds with our Art. 2221, says that prescription, when applicable, is based upon the theory and presumption of ratification or confirmation. Laurent, Vol. 19, b. 14.

We adhere to the principle announced in Lafitte vs. Delogny that a contract of this character is subject after the death of the husband to ratification or confirmation by the wife, and we think that this confirmation or ratification, may, under Art. 1786, C. 0., be either expressed or implied. If the contract has been executed, silence by the wife after the husband’s death during the prescriptive period, would be an implied ratification.

We do not think that the nullity of the contract was such as to' make it absolutely non-existent; it simply, during marriage, remained without effect. It was not of that character which “the law would always and constantly resist.” Art. 1L of the Oivil Oode says, that “ individuals can not, by their conventions, derogate from the face of laws made for the preservation of public order or good morals. But in all cases in which it is not expressly or impliedly forbidden, they can renounce what the law has established in their favor when the renunciation does not affect the rights of others, and is not contrary to the public good.”

We think the law relative to a wife’s not binding herself or her husband’s property was enacted specially in her interest and only remotely in that of the public. Primario spectat utilitatem privatem secondario publicam.

Art. 2305, O. O,, referring to payments made by parties says: “That which has been paid under a void title is also considered as. not due.” If the widow of John Brownson had, after his death, finding this note of hers executed during marriage still outstanding, gone forward and paid it, we do not think it would be contended that she would be entitled to the action in repetition which she would have had for a payment made by her in virtue or a title absolutely void.

The only attack made upon the sale in this case is the claim of the absolute failure of the basis upon which it rested the note and the mortgage. The proceedings themselves are not attacked. We think it was essentially necessary that the present action should have been brought in order to replace matters as they stood prior to the sale. The vice which attached to the original contract of mortgage was not absolute nor patent on the face of the record, but required, in order to bring it to light, proof of extrinsic facts. Mrs. Emma Brownson, the plaintiff, was a party to the act, and she could not ignore that fact — the fact that the contract had been executed years before through a judicial sale in enforcement of the mortgage, and the property was in the hands of a third possessor, claiming ownership. She could not bring a direct petitory action for the property, as she could have done, had her husband sold her property himself in order to pay his debt, or it had been sold in execution of a mortgage which he had placed upon it for that purpose. It was necessary that the sale at which Mrs. Caroline Brownson became the purchaser, should be set aside before Weeks, the subsequent purchaser of the same, could be reached, and to that end it was essential that Mrs. Caroline Brownson should have been made a party. Defendant is correct in saying that the present action is primarily an action of nullity or rescission, and that in so far as it is petitory, it is only consequentially so. Plaintiff went into the suit upon a contrary hypothesis, without proper parties and pleadings, at her own risk.

If the plea of prescription invoked by the defendant be sustained it will 'dispose finally of the case.

We endeavored to examine the record in the case of Mulford vs. Wimbush, 2 An. 443, to which counsel for plaintiff has referred us, with a view of ascertaining the character of the contracts involved therein, the precise circumstances under which it was brought, and the nature of the pleadings, but found that unfortunately it had been placed as among the “ missing records of the court.” It seems to be the only decision really bearing upon the question before us. Several others have incidentally referred to the prescriptions under Arts. 2221 and 3542, but the remarks made do not seem to have been necessary for the purposes of the eases before the court, either because other and shorter prescriptions were pleaded which were determinative of the issues, or because the facts of the cases making the longer prescription (of ten years) applicable, it was important to refer specially to the shorter one of five. We have, in view of the importance of the question, examined it with care.

When the framers of our Oode reached the subject of the ex-tinguishment of obligations, they assigned “nullity and rescission” as one of the manners in which this was brought about. Among the articles making up that sub-title, they placed the present Art. 2221 (formerly Art. 2218), corresponding with Art. 1304 of the Code Napoleon. They were not dealing with the subject of “prescription” at that time; that was a subject thereafter to be taken up. They were uncertain what the final condition of the law on that subject would be, and in our opinion Art. 2221 was simply intended to reach cases which might escape from other provisions of the Oode. They however announced as a general rule that whatever might be the prescription fixed for cases wherein error, violence, or deception might be assigned as the causes for actions of rescission, and whatever might be that >or setting aside acts executed by persons interdicted, acts executed by married women not authorized, or minors, the starting point for prescription should be as announced in Art. 2221. If the court, in 2 An. 443, reached the conclusion that the prescription of Art. 2221 had to be adopted in that case in order to give the plaintiff the benefit of the period fixed therein for the commencement of prescription, for the reason that Art. 3542 was silent on that subject, we think the court erred. The second and third paragraphs of Art. 2221, though not repeated in Art. 3542, were none the less carried over into the latter article. We do not think that, in order to reach those particular provisions of the law, it was necessary that actions of nullity or rescission, based on fraud, error, violence, minority, interdiction of incapacity of women from want of authorization, should have been held to have been brought under the prescription of ten years. To do this would practically be to wipe out Art. 3542, which is as sweeping in its terms as it is possible to be in making five years the period for prescription for actions for the nullity or rescission of contracts. These particular causes are precisely those on which such actions are generally based. They furnish the foundation usually for setting aside what are known as voidable contracts.

In our opinion the prescription of ten years applies to a different class of cases. It reaches those where contracts, perfect and complete on the face of the act evidencing them, are attacked as absolutely null and void in order to have them so decreed through proof of extrinsic facts establishing the absence of one of the elements essential to the very existence of the contract, for instance, a contract ot sale or exchange where one of the things exchanged or the thing sold was found to have had no existence at the date of the contract. The State vs. Railroad, 34 An. 951, referred to by plaintiff, is an illustration of such a suit. In succession of Wilder, 22 An. 219, the prescription of five years was successfully pleaded against an attempt made to avoid after maturity a marriage contract made during minorty, the court holding that the contract was not void, but voidable.

In the case at bar, we think the evidence shows unquestionably that the plaintiff was in a position at one time to have repudiated the contract she made or to have undone the sale made under it. She permitted the mortgage to be foreclosed and the property to be judicially sold in its enforcement. She is not before us seeking to ward off an impending injury upon an unexecuted contract, but as a plaintiff seeking to undo, long after the rights of third parties have become involved, the harm which timely action on her part could have either avoided or minimized.

In Vaughan vs. Christine, 3 An. 330, this court, after citing Toullier as saying: “ En un mot nous ne connaissons point de nullite fondée sur l’interet privé qui ne puisse étre réparée par la ratification expresse ou tacite. Le vice le plus absolu des convention, le defaut ou la non-existence du consentement, put neanmoins etre réparépar la ratification, soit expresse, soit tacite,” declared that “in all executed contracts which, under this view of the law may be tacitly ratified, a presumption, juris et de jure of ratification, results from silence and inaction during the time fixed for prescription, and held that plaintiffs action was barred by the prescription of five years pleaded. No legal impediment has for six years stood in the way of Mrs. Emma Brownson bringing an action in nullity. She permitted the defendant to continue for years in the possession of the property, making valuable improvements and making outlays, many of which he could not now recover. The nullity which she invokes was a relative one in her own interest and subject to ratification. We think that law and equity unite in authorizing us to say that her long silence has resulted in barring an attack upon defendant’s title. Matters have gone too far to be now remedied. “ Multa fieri prohibentur quae si facta fuerent firmitatem.” We think the judgment appealed from is correct, and it is hereby affirmed.

Concurring Opinion.

Watkins, J.

From the record'it appeai’3 that the plaintiff executed an act of mortgage upon her separate property to secure the payment of her note for one thousand five hundred dollars in favor of Mrs. Catherine Stouff, on the 20th of January, 1874, and that the said indebtedness -was that of her husband — the judge’s certificate of authorization being appended to the act.

Shortly afterward Mrs. Stouff assigned the note to Mrs. Caroline Brownson, mother of the plaintiff’s husband, and she foreclosed the mortgage and purchased the property on the 5th of September, 1875, and conveyed it to the defendant on the 24th of September, 1880.

The grounds of nullity assigned by the plaintiff are, (1) that the mortgage was granted to secure the indebtedness of the husband; (2) that it was secured and maintained through the marital influence of her husband.

The judge held that the defendant was a purchaser in good faith; but that inasmuch as no prescription runs between husband and wife, it did not begin to run until after the death of plaintiff’s husband in the year 1887; and, consequently, the period of time necessary to found defendant’s title by prescription acquirendi causa (R. C. C., 3478) had not elapsed at date suit was filed. R. C. C., 503.

But he gave effect to the defendant’s plea of five years’ prescription liberandi causa (R. C. C., 3542), which declares that an action for “ the nullity or rescission of contracts, testaments, or other acts,” “ are prescribed by five years.” (Our italics.)

There is no question about the regularity of the executory proceedings and judicial sale to Mrs. Brownson, the only claim that the plaintiff makes in reference thereto being that she made it under the false representation that it was to protect the property from other creditors of the husband of plaintiff.

On this state of the case there is but a single question presented for solution, and that is whether plaintiff’s action to annul the act of mortgage is barred by the five years’ prescription librandi causa.

Her suit is intended to procure her release from the effect of her promise to pay her husband’s debt, and to procure the revocation of the act of mortgage she consented as a security therefor.

Her theory is that the nullity of those acts being absolute, it draws to them the nullity of the subsequent acts of sale, judicial and conventional.

The Code declares that “ the wife * * * can not bind herself for her hu3band * * * for debts contracted by him before, or during the marriage.” R. C. C. 2398.

It is on the prohibition which that article contains that plaintiff mainly relies, and the success of her pretensions necessarily turns upon the character of the nullity therein denounced — whether absolute or relative.

For, if absolute, the argument is that the nullity is incurable; not subject of ratification or prescription. While, qn the other hand, it is that, if relative only, the converse of that proposition is true, in every particular. That, if absolutely null, it was so ab initio, and never produced any legal results. That prescription can not create a right nor make an obligation.

Plaintiff’s contention is that the mortgage was an absolute nullity, and that its nullity permeates and renders void the subsequent transactions.”

But her further contention is, that if the act be only relatively null, the prescription of ten years, prescribed in R. C. C. 2221, controls, instead of that of five years, as prescribed in R. C. C. 3542 (3547).

The case of Lafitte vs. Delogny, 33 An. 659, presents conditions quite similar to those presented in this case, and involved the nullity of an act of mortgage by a wife given to secure a debt of her husband, and subsequent foreclosure and sale of the property mortgaged, the same having been ratified by the surviving widow after the demise of her husband, in a written act of ratification, “ and by her silent acquiescence in the proceedings and sale she again ratified the contract on which they were based.”

On this hypothesis the court propounds this question, viz.:

Admitting that the debt originally was the debt of her husband, which she thus ratified and promised to pay, did such ratification create any legal obligation on her part, and make the debt a valid debt against her from the time it was made?

“In other words, was the mortgage given by her for the debt of the husband — conceding it to be such — a nullity so absolute and radical as could not be ratified by her after the death of her husband, and she was thus freed from marital influence?”

The same question confronts us here, although the ratification of the wife’s prohibited contract rests alone upon “her silent acquiescence in the proceedings and sale.”

In making reply to that query, the court held and maintained the principle that under our law, as under the French law and jurisprudence, there are two distinct and different kinds of absolute nullities in matters of contract; (1) those resting upon motives which are violative of good morals or public policy; (2) those resulting from the incapacity of persons to enter into contracts of any kind.

Of the former they say it is a nulliiy, “so absolute and radical that the law always and constantly resists it, and makes and declares it non-existent, and not susceptible of ratification; ” and of the latter they say that, though dormant and non-enforeible during the continuance of the incapacity, yet same may become the subject of ratification, after the incapacitated person has been relieved of her disability. Vide Dunod Traite de Prescrip., Ch. 8, p. 47; Toulier, Vol. 4, p. 533; Vaughan vs. Christine, 3 An. 328, quoted in Lafitte vs. Delogny.

The court, in applying those principles to the facts of that case, say:

“The nullity charged respecting the act of mortgage executed by Mrs. Delogny in favor of her son in this case, may be classed among the nullities which result from the incapacity of the wife growing out of the relation she bears to her husband;” and “icis evident that when the law declares that the wife can not bind herself for her husband, or become security for his debts, this was to protect her against acts resulting from her dependence on her husband.”

The reason assigned for this rule of law is, that it operates a protection to the wife’s separate property.

This dual principle is fully recognized and sanctioned by our Code. For while, in Art. 11, it is declared that “individuals can not, by their com entions, derogate from the force of laws made for the. preservation of public order and good morals;” and in Art. 12 it is declared that “ whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed;” yet, it is further declared in Art. 1790, that besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases by the administrator of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband to alienate her dotal property, ,or to become security for his debts.”

Special significance attaches to this article in view of the fact that it is found in the chapter of the title “ of Conventional Obligations ” which treats of the parties to a contract and their incapacity to contract. ,

Reading those two articles together, the conclusion is clear that the court correctly held the nullity in the contract of Mrs. Delogny to be one which resulted from her incapacity as a wife; and it is equally evident that the prohibition of Art. 2398 is not one which comes within the purview of Art. 11, and hence an engagement in violation of it does not result in an absolute nullity which derogates from the force of laws made for the preservation of public order or good morals.

The court in that case say that the contract of the wife in such case may be assimilated to other contracts which the wife is forbidden to enter into.” Citing Art. 2397, and making the following comment, viz.: They ” — Arts. 2397 and 2398 — “ seem to stand on the same footing; and, it is worthy of note that Art. 2397 forbidding the wife to sell her'immovables, and Art. 2398, containing the prohibition against her binding herself for her husband’s debts, constitute of themselves one section, and Is entitled ‘ of the wife’s incapacity to alienate her- immovables, or to bind herself for her husband,’ and therefrom draw the inference that the two are of the same general character * * * Now, it will hardly be questioned that a married woman who sells her immovables without the authority of her husband can ratify such sale after the dissolution of the marriage, yet the same terms of prohibition are used in both articles.”

In confirmation of this theory, Art. 1786 — which is found in the same section of the Code as 1790 supra — declares that “ the unauthorized contracts made by a married woman, like the acts of minors, may be made valid after the marriage is dissolved, either by express or implied ratification.”

The principles on which the opinion in the Delogny case is predicated are sanctioned and supported by numerous prior adjudications of this court. In fact, I have not been able to find any well considered case holding that such prohibited contract of a wife was not susceptible of tacit ratification after she is released from the restraints of marital authority.

As the decisions on this and kindred questions cover a wide range, and embrace a variety of judicial opinions, I will only make a few quotations from those best expressing the jurisprudence of this court in the premises.

In The Augusta Insurance and Banking Company vs. Morton, 3 An. 417, the court, speaking through Bustis, C. J., said:

“ The article of the Code which provides “ that the wife can not bind herself for the debts of her husband, according to the doctrine of the civilians, is a personal statute. It is founded exclusively on the personal relation between the husband and wife, resulting from marriage under our laws, and, of course, is confined in its opetation to married persons within our jurisdiction.

“ True, it establishes an incapacity to contract, but this incapacity is merely relative, and it is settled by our jurisprudence that a wife can not be relieved from the effect of a contract by which she became the surety for her husband, if the debt itself inured to her benefit. The disability to contract exists only in a certain contingency, and that contingency is strictly personal. The incapacity of a married woman to contract is of the same character as that of a minor, and the laws creating those incapacities have always been classed among those which are called personal.

❖ !¡< * * * 'Jfi Sf!

“This article, R. C. C. 2398 (2412) * * * renders voidable contracts made by married women in certain cases, by reason of the consideration which it holds to be in conflict with the relations of husband and wife.” Citing: 1 Duranton, Secs. 79, 80; Sirey’s Rep. 19, 2, 140; Traité des Personnes par Prudhon, Ch. 5, Sec. 1.

The same principle is affirmed in Bisland vs. Provosty, 14 An. 169, in the following statement, viz.:

“Under our Art. 2412, which is confined exclusively to the contracts of married women, it is supposed that the wife may be induced to sign a contract injurious to her rights under the marital influence.”

It has been frequently held that a promise to pay a debt of the husband for which the wife had become security, made by the surviving widow subsequently to his death, was binding on the latter. Succession of Guidry, 4 An. 488; Gunst vs. Brull, 7 An. 649.

In Medart vs. Fasnatch, 15 An. 621, it was said of a married woman’s contract of suretyship for her husband, on which a judgment had been rendered, that “as long as the disability lasts a judgment obtained against the man and wife * * * is liable to the same objection as the obnoxious obligation.”

In Barron vs. Sollibellas, 26 An. 289, it was held to be competent for a married woman to make a transaction and compromise of a lawsuit, and that she cannot afterward “ be listened to when saying that the debt on which she was sued was a debt of her husband.” Thornhill vs. Bank, 34 An. 1171; Sentell vs. Stark, 37 An. 679; Calhoun vs. Lane, 39 An. 594.

In the Bank of Lafayette vs. Bruff, 33 An. 624, it was held that a married woman, who has bound herself towards an innocent third person as surety of a party between whom and her husband there existed a secret partnership, can not afterward plead, as against such third person, that by her contract she had promised to pay her husband’s debt.

That principle was subsequently affirmed in Chaffe & Sons vs. Watts, 37 An. 324.

And in treating of the wife’s prohibited contract of security for her husband this court expressly declared in Chaffe vs. Oliver, 34 An. 1008, that:

“ Of course, these doctrines have their limitations when they involve the rights of innocent third persons, who have acted in good faith upon the apparent validity of such transactions.”

And one of those limitations is specified in Henry vs. Gauthreaux, 32 An. 1103, in these words:

“While the law and the jurisprudence have, at all times, favored married women in the assertion and vindication of their rights, they have never intended, and do not contemplate, the perpetration of fraudulent practices for the accomplishment of villainous objects, by which to enrich themselves gratuitously at the expense of their unguarded and trusting neighbor, on whom equity keeps a watchful eye.” R. O. O. 1965.

These various illustrations will serve to show most conclusively, I think, that the prohibition contained in R. O. O. 2398 (2412) against which the present suit is leveled, does not apply to, and is not founded upon public order or good morals; but that article is only a personal statute, founded exclusively upon the personal relations between husband and wife, and resulting from marriage under our law. That it establishes an incapacity to contract, which, though absolute in a certain sense, and so long as the marital influence continues, is, like the incapacity of a minor, voidable only, and may be the subject of ratification, whether express or implied, after marital influence has ceased.

This being the character of the nullity which this article denounces, the reprobated contract is prescriptible, especiJ^ in respect to third persons who have transacted and dealt with the property affected by it on the faith of the public records on which the contract has remained unimpeached during a prescriptible period of time.

In Vaughan vs. Christine, 3 An. 328, the court held the prescription of five years under R. C. C. 3042 (3507) applicable to such a nullity, as the one in this case is defined to be. The substance of that decision is: That absolute nullities are of two kinds: (1) Those resulting from stipulations derogorating from the force of laws made for the preservation of public order or good morals, (2) and those established for the interest of individuals. The former are not susceptible of ratification, and the prescriprion of five years, under Art. 3507 of the Code, is inapplicable to them; but if, by subsequent dispositions of law or by the succession of time, such stipulations cease to be illegal, they may from that time be ratified and become subject to the prescription of Art. 3507 * * * But in relation to absolute nullities established in the interest of individuals, the rule is, as to onerous contracts, without exception, that the party in whose favor they are established, may ratify the contracts, either expressly or impliedly.

“ In all cases of executed contracts susceptible of tacit ratification, a presumption of ratification juris et de jure results from silence and inaction during the time fixed for prescription.'" (My italics.)

In Succession of Wilder, 22 An. 219, it was held that a voidable antenuptial contract of a minor was binding on her, if not disaffirmed by her within five years after she was relieved of her disability; and the court applied the prescription of five years under R. C. C. 3542 (3507).

But we find the strength of the rule stated contra in Provost vs. Provost, 13 An. 574, wherein the prescription of five years, under that article, was held not to apply to a will that was absolutely void, because it contained a prohibited substitution. Lagrange vs. Barre, 11 R. 313, to same effect.

In so far as the contention that the prescription of ten years, under R. C. C. 2221 is alone applicable, is concerned, it was ruled differently in Mulford vs. Wimbish, 2 An. 443. In that case the court had under consideration and construed the apparently conflicting provisions of R. C. C. 2221 (2218) and 3542 (3507) and said:

The former “ re^es to cases of error, fraud or violence in agreements which are expressly included in it. If Art. 3507 intended the same class of cases, there would be two terms of prescription applicable to them by the same legislation in the same code, etc. * * * But we do not give such an interpretation to Art. 3507. We consider it applicable only to cases other than those provided by Art. 2218, and thus give effect to both articles. It will be observed that such appears to be the evident sense of Art. 2218, which presupposes other provisions concerning the prescription against the action of nullity and rescission of agreements than that which it establishes.”

In George vs. Lewis, 11 An. 654, the court said:

“ The action of rescission or nullity of contracts lies only for an alleged vice inherent to the contract itself, tainting it ab initio, ” in order to bring it within the operation of C. C. 3507. Barnebe vs. Snaer, 18 An. 148.

While, on the contrary, the nullity resulting from a want of due form is barred by the prescription of ten years. State vs. Martin, 2 An. 715; Calais vs. Sembre, 10 An. 684; Ross vs. Ross, 3 An. 536.

From all of which I think it clearly results that the plaintiff’s suit is prescribed by five years, and that the judgment appealed from should be affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,805.
    The Mayor and City Council of Monroe vs. The Police Jury of Ouachita Parish.
    Where the State adds territory to a political subdivision, it is not within the power oí the latter to so fix the boundary as to exclude from its limits a part of the territory intended to be added to th i municipality.
    When the State directs the extension of a street to a certain point, to embrace the added territory, the street must be continued in its length in the direction to which itpoints and to its destination designated by the legislation. It can not be deflected, unless there are physical obstructions which make it necessary, so as to reach the point in the most direct line.
    Local self-government is guaranteed under our political system, in or out of a municipality, and the municipal organization as such has no significance as an organization for the preservation of vested political rights. In European countries franchises and privileges to a municipality are secured by contract between lord and dependant; with us it is acreation of positive law, and in furtherance of the general administration of the State, it is subject to legislative will. No vested right can be acquired by a municipal organization by its own act, by the consent of another to said act, or by opposition thereto, as against the paramount authority of the State.
    A PPEAL from the Fifth Judicial District Oourt for the Parish Tx of Ouachita. Munholland, J., ad hoc.

      Thomas O. Benton, City Attorney, and F. G. Hudson for Intervenor, Appellants,
    cite 45 An. 1024; 38 An. 1198; 7 Texas, 288; 10 Peters, 734.

      Stubbs & Bussell for Defendants and Appellees.
    Argued and submitted, May 13, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 6, 1895.
   The opinion of the court was delivered by

McEnery, J.

This is an injunction proceeding instituted by the plaintiff city against the defendant parish to restrain the latter from exercising jurisdiction, in the way of collecting licenses and taxes over certain territory, which the city claims is within her limits, in pursu - anee of Act 81 of 1873, fixing the southern boundary line of the city. After the passage of this act the city caused a survey to be made and the boundary ascertained, and by ordinance.of the council adopted the same. Believing this to be an error, the city caused two other surveys and maps to be made.

Under both maps and surveys the city exercised jurisdiction without complaint from the parish until 1894, when it'was last resurveyed by the parish surveyor. The parish now claims that the boundary first established by the city was a true interpretation of legislative intent, as it was contemporaneous with the act, and as it was a local matter, and as the State is not particularly interested, the city is concluded by her act and estopped from denying the boundaries first established.

It is immaterial what construction either party placed upon the act fixing the boundaries, and it is equally unimportant which political subdivision exercised jurisdiction over the disputed territory. There are no such doubts and uncertainties in the act that a resort to contemporaneous construction must be resorted to; nor is the act so ancient that we must look to custom and usage for its interpretation.

In nearly all European countries the rights and privileges, the civil franchises of municipalities owed their origin to treaty or contract between lord and dependent. Vested political rights are acquired by such treaties and contracts. Local self-government is guaranteed under our political system, in or out of a municipality, and the municipal organization as such has little or no special significance as an organization for the preservation of vested political rights. It has none It is the creature of positive law, erected into a geo - graphical and political subdivision in aid of and in furtherance of the general administration of the State.

It is subject to legislative will, aud can be controlled, under and subject te the organic law. It can be extended, diminished or destroyed in its geographical limits, as well as it can be granted greater power, which can be withdrawn, in the exercise of political administration. Therefore, in the extension of the limits of the city, and fixing its boundary, neither the city nor the parish in which the town is located can by any act place an interpretation upon the legislative will that could either extend or diminish the area intended to be embraced by the act fixing'the boundaries of the subordinate geographical and political division.

No vested right can be acquired by a municipal organization by its own act, or by the consent of another to said act, or by opposition thereto, as against the paramount authority of the State.

The act of the Legislature to be interpreted is as follows:

Act 81, of 1873, fixed the southern boundary of the city in the following language:

“ Commencing at a point on the east bank of the Ouachita river, 1140 feet south of the upper line of the plantation of Mrs. Nancy Bry, deceased; thence eastwardly to a point intersected by the eastern line of the extension of Jackson street, as extended, to the south line of Bry avenue, according to the survey of Frank Moore, surveyor of Ouachita parish; thence by an extension of the said Bry avenue in an easterly direction to the east bank of Young’s bayou.”

There is no contention on either side that the disrupted line should run due east. The contention is as to what particular direction the line should run toward the east. Both lines reach Young’s bayou toward the east, the one insisted upon by plaintiff bearing north 73 deg. east, and that by the defendant north 52 deg. and 45 seconds.

The line claimed by plaintiff runs nearly due east in the prolongation or extension of Bry avenue, without deflection.

That which the defendant asserts as the true line deflects at Jackson street, and turns to such an extent as to make an angle at that street. This deflection, however, makes the prolongation of Bry avenue parallel with the streets of the city in the older additions. But we do not think this fact can control the legislative will. It was new territory being added to the city, and we must look more to the area intended to be annexed than to the intention of preserving the beauty and symmetry of the streets and the exact proportion or size of the squares.

The defendant contends that under the act, the broad meaning of the word “ extension ” would justify the prolongation of Bry avenue as insisted upon by the parish.

Extension signifies enlargement in any direction, in length, breadth, or circumference. The extension, of course, is always in the direction of the lateral sides. To extend a street means its prolongation and continuance in the direction to which it already points, unless it appears that the change in its direction has been authorized. South Boston R. R. Co. vs. Middlesex R. R. Co., 121 Mass. 485.

Insurmountable physical objects may compel a deflection, but it must resume its course in the direction to its objective point. It is admitted that there are no physical obstructions in the way of extending Bry avenue on the line, north 73 east to which it pointed when the act was passed directing the extension of said avenue. The meaning of the act then is very plain. It authorized and directed the continuation of Bry avenue north 73 deg. east.

How can it be said to mean that the direction of the street or avenue must be changed so as to run north 52 deg. and 45 seconds east?

This is not a contract or agreement between two independent sovereignties, as to territory, which is to be interpreted by the manner in which the same has been executed. Therefore, there is no application to the case of some of the authorities referred to by the defendant. It is an act of the Legislature adding territory to a political subdivision of the State, and we are to determine what direction the State intended to give to an existing street in order to embrace the territory intended to be annexed.

We are of the opinion that the words “thence by an extension of the said Bry avenue in an easterly direction to the eastern bank of Young’s bayou” meant that the avenue should be continued on its existing line north 73 deg. east until it reached Young’s bayou.

It does not mean, as contended by defendant, that Young’s bayou was to be reached by the avenue in the most direct line, for the reason that the Legislature did not say so, and in doing so the avenue would have a deflection, forming an angle at its intersection with Jackson street, making a difference in its easterly direction of some 21 deg.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the injunction herein be perpetuated, defendant to pay all costs.


author: Watkins, J.

text:
    No. 11,623.
    J. P. Mahoney & Co. vs. The Rector, Wardens and Vestry of St. Paul’s Church.
    Notwithstanding the stipulation in a building contract, that builders shall not be entitled to demand and receive the final balance due them on the contract price until they shall first procure from the architects in charge of the work a certificate that the edifice has been completed according to contract and accepted by said architects, the builders may sue the owners for the balance due, after having put the architects in default by demanding certificates from them, after the completion of the work — their only ojection being that the full amount due the sub-contractors and material men had not been paid, although same had been provided for by the builders, to be paid out of the amount due.
    When the building contract provides that in case of delay in the completion of the structure by a certain fixed date, the builder shall pay a forfeit of a certain sum daily during the period of default, other provisions of the contract must be examined and compared, in order to determine upon whom — from the gen eral tenor and provisions of the contract — the fault is imposed in causing the delay in the completion of the building.
    When those other provisions disclose that the builders are to furnish the materials and perform the work, and the architects are to furnish the plans and specifications and superintend the work, it is an easy matter to show by evidence whether the delay in the completion of the work was caused by the fault of the builders or the architects, and judgment will go accordingly.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Harry H. Hall for Plaintiff, Appellee.

      Merrick & Merrick for Dewar, Grandison & Co., Intervenors, Appellees.

      James McConnell and Walker B. Sommerville for Defendants, Appellants.
    Argued and submitted, January 30, 1895.
    Opinion handed down, March 11, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Watkins, J.

The plaintiffs claim of the defendants ten thousand and thirty-three dollars and fifty-four cents, per detailed itemized account, as the net balance due them on their engagement to erect and complete a church edifice on their property at the corner of Gamp and Gainnie streets, in the city of New Orleans, after deducting all cash payments received and other credits to which they are admittedly entitled.

It is alleged that by a written contract made with the defendants, who were represented by their duly constituted agent, H. P. McDonald, petitioners undertook to furnish the labor and material, and to erect and complete St. Paul’s church for the price of sixty thousand four hundred and eighty seven dollars and fifty cents, and upon the terms and conditions therein specified.

They aver that they did furnish the labor and material and did erect and complete said church edifice within the terms and conditions of said contract in every respect, and that there remains to them unpaid the balance aforesaid.

They further represent that defendants unjustly and arbitrarily withhold said sum from them, “ urging as a pretext for such refusal that under said contract they are not bound to pay except upon the certificate of the architects named in said contract, viz,: Messrs. McDonald Bros.,” and they aver that “the senior and controlling member of said firm of McDonald Bros., who, in said contract, is the agent of the defendants,” and “ said architect and agent of the defendants arbitrarily, illegally, and without justification, refuses, in spite of due demand, to furnish to petitioners the certificate to which they are entitled, assigning as a reason for declining to furnish such certificate that petitioners have failed to pay all of their indebtedness to their sub-contractors and material men, as they were in law and duty bound to have done. But the petitioners further represent and show that the amount they are due to sub-contractors and to material men is much less than the balance they have claimed, and they have authorized the defendants to pay said amounts and deduct the amounts thus paid from the sum that is due to them on settlement.

The defendants appeared and filed an exception of no cause of action, and no right of action, annexing thereto a copy of the building contract which is referred to in plaintiff’s petition as part thereof.

Dewar, Grandison & Co. intervened and alleged that J. P. Ma-honey and the defendants are indebted to them in the sum of three thousand and eighty-five dollars and thirty-eight cents for this, viz.: that they contracted with the firm of J. P. Mahoney &Oo., plaintiffs, to do the brick, stone and concrete work, and to make the excavations for the building or St. Paul’s Church, for the sum of thirty-five thousand four hundred and seventy dollars. That, in addition, they subsequently agreed to do certain extra work for the sum of two hundred and forty-two dollars and ninety-eight cents, making the entire contract price thirty-five thousand six hundred and sixty-two dollars and ninety-six cents, which is subject to a credit of thirty-two thousand five hundred and seventy-seven dollars and sixty cents, leaving due the balance above specified.

They show that their contract with John P. Mahoney & Oo. was duly registered according to law when entered into; and that since the work was completed a sworn statement has boen recorded showing the amount due them by John P. Mahoney & Co. and the defendants to be four thousand eight hundred and thirty-five dollars and thirty-eight cents, since which time a partial payment has been made, reducing it to the amount now claimed.

They allege that they have, under the law, a lien and privilege, as. builders and contractors and furnishers of material, upon the building erected and constructed, which has been accepted and used, and is now in the use and occupancy of the defendants. Their prayer is for personal judgment against the defendants and the recognition; and enforcement of their privilege.

To the intervention the plaintiff’s answer is a general denial, except in respect to defendants having taken possession of the church; edifice, which they affirm to be true.

Plaintiffs supplement their petition and allege that, since filing suit they have made, at the request of the defendants, certain repairs on the church edifice which they were under no obligations to make, and which were caused by the defective plan of said building or through the carelessness of other people over whom they had no. control, and for whom they were not responsible in any way.

They further allege “ that said building was thereby put in a condition completely satisfactory to the defendants, who took possession thereof, and are using the same without any cause of complaint and without pretending that there are any imperfections or insufficiency in the work,” etc.

The defendants first tendered an exception of no cause of action, to the petition of intervention.

Both exceptions having been overruled, defendants filed an answer to the plaintiffs’ original and supplemental petitions.

They admit that they entered into a contract with the plaintiffs, wherein it was agreed between them that plaintiffs should build for them a church edifice “under the supervision and control of Messrs. McDonald Bros., architects, for the sum of sixty thousand four hundred and eighty-seven dollars and fifty cents, in accordance with certain plans and specifications therein referred to,” a copy of which is annexed thereto.

They then allege that they “stand upon this contract in all of its parts, and they invoke the terms thereof, as a law of the parties thereto, and they now plead the same and ask that the contract in its every part shall be performed in its entirety.”

They then aver that plaintiffs are estopped by the terms of said contract from demanding final payment of any amount that may be due under it:

1. Because the building has not been completed and finished in a good, workmanlike manner.

2. Because they have not furnished and produced a certificate from the architects of the building, McDonald Bros., certifying that the payment is due.

8. Because they have not furnished proper evidence that there is no mechanic’s lien upon the work, or that all claims for which the building could be held liable have been paid.

Further answering, defendants aver that they are not indebted to plaintiff in any amount whatever, for the reason that under paragraph 2 of the contract they were only obliged to pay plaintiffs “ eighly-five per cent of the amounts shown to be due by the certificates to be issued by the architects during the^time of the construction of the building,” and also that defendants “were to retain seven and a half per cent of the amount certified to be due in their hands, until the building had .been accepted as completed by the architects, and the other seven and a half per cent, for sixty days after acceptance.”

They then “ allege that the building has never been accepted by the architects, who, alone, are vested with authority to receive it when the work is complete,” etc.

They “plead said clauses of the contract and the refusal of the architects and defendants to accept the building as completed in bar of plaintiff’s claim.”

They further represent “that by the terms of paragraph 6 of the contract * * * it was agreed between the parties thereto that should plaintiffs fail at any time to comply with any conditions of said contract, the architects might cause any payment to be withheld until the architects were satisfied,” and that having failed to comply with the terms of the contract, they are estopped from making any claim against them now.

They then set up against plaintiffs a reconventional demand, as follows:

That by the terms of paragraph 11 of the contract it was stipulated and agreed that the plaintiffs should complete the building be - fore the 23d of June, 1892, and for any delay of completion the plaintiffs should pay the defendants at the rate of fifty dollars per day, to be deducted from the amount that might be due them thereunder. They aver that plaintiffs failed to complete the building on June 23, 1892, and it is still uncompleted, and that by reason of said failure they owe defendants the sum of twenty-nine thousand and fifty dollars, that is to say fifty dollars per day from the 23d of June, 1892, to date of filing answer — covering a period of five hundred and eighty-one days — and that amount should be deducted from any sum due them under the contract.

They further pray that the said sum of twenty-nine thousand and fifty dollars should be increased at the rate of fifty dollars per day for every day which the building may remain in its present incomplete condition.

Their prayer is for judgment in defendants’ favor over against the plaintiffs in the sum of twenty-nine thousand and fifty dollars, reserving their right to sue for any additional amounts that may become due.

The defendants’ answer to the intervention is a general denial.

On the trial there was judgment in favor of the plaintiffs and against the defendants, for the sum of nine thousand six hundred and twenty-three dollars and fifty-four cents, with five per cent, interest from the 26th of October, 1893, subject to a credit of two thousand seven hundred and twenty-three dollars and thirty-eight cents, as the amountnow due to the sub-contractors of the plaintiffs, Dewar, Grandison & Co., reserving to the plaintiffs their right to sue the defendants for damages.

It was in favor of the intervenors, and against the defendants, for the sum of two thousand seven hundred and twenty-three dollars and thirty-eight dollars, with legal interest from judicial demand, reserving them their right to sue defendants for extra work performed and materials furnished them.

From that judgment the defendants have appealed.

Analyzing the pleading, as outlined in the foregoing extracts, we find the following to be a fair summary thereof:

All parties admit that plaintiffs contracted to build a church edifice for the defendants at an agreed price, and upon certain terms specified in the contract.

It is affirmed by the plaintiffs that their right to sue is denied- by the defendants, on the ground that they are not bound to pay except upon the certificate of McDonald Bros., architects, and this is likewise asserted by the defendants.

It is alleged by the plaintiffs, that the refusal of the architects to furnish them with a certificate that the residue of the price is due was an arbitrary and illegal act on the part of the said architects, the senior member of which firm was the agent of the defendants at the time. And the defendants having assigned as the reason why the architects withheld their certificate, that plaintiffs had not paid all their indebtedness to the sub-contractors and material men, the plaintiffs aver that the amount due to said sub-contractor3 is much less than is due to them, and they have authorized defendants to pay said amounts and deduct same from the amount due on settlement. And whilst neither denying nor affirming that averment, the defendants specially invoke and urge against the plaintiffs the stipulations of the contract as an estoppel, and as disclosing no cause of action; and subsequently admit that they contracted with defendants to build for them a church edifice under the control and direction of McDonald Bros, as architects, without disavowing that the senior member of that firm was their agent, as alleged. Notwithstanding plaintiffs, in their supplemental petition, distinctly charge that, since this suit was filed, they have made, at the request of the defendants, certain repairs on the church edifice, which they were under no obligation to make, and which were caused by the defective plan of said building, or the carelessness of other people, over whom they had no control and for whom they are not responsible; and, notwithstanding that said building was thereby put in a condition completely satisfactory to the defendants, who took possession thereof and are now using same without any cause of complaint, and without pretending that there are any imperfections in the work; the defendants, without making any denial or disavowal whatever, set up a defence that the duilding has not been completed in a good and workmanlike manner to the satisfaction of the architects, and insist upon the stipulation of the contract giving them the right to withhold fifteen per cent of the contract price of the edifice “until the building is completed and accepted by the architects.”

The defendants, then assuming the character of plaintiffs in re-convention, allege that under the stipulations of the contract the plaintiffs agreed and bound themselves to complete the building by the 23d of June, 1892, or to pay them the penalty of fifty dollars per day for every day they were in default in so doing after that date; and, averring that they had been in default for a period of five hundred and eighty-one days, they demand of plaintiffs the sum of twenty-nine thousand and fifty dollars on that score.

Taking a comprehensive view of defendants’ conceptions and defences, they appear to us to be entirely technical.

While it is true that the defendants were under no obligation to pay the final balance due under the contract, except upon the approval and certificate of the architects, yet we are fully satisfied that one member of the firm of architects was an agent of the defendants, and, occupying that relation toward the defendants, may have unduly influenced the firm to withhold a certificate of approval of the work to which they were righfully entitled.

This impression is fortified by the fact that the architects assigned as their reason for withholding a certificate, that plaintiffs had not paid up the sub-contractors — not that the building had not been finished and completed according to contract — while it is a fact, undenied by the defendants, that they had been fully authorized to pay such amounts as were ascertained to be due, and deduct same on settlement with plaintiffs.

On this state of facts we are of opinion that the plaintiffs were entitled to sue, and had a right of action against defendants, notwithstanding they had failed to procure a certificate from the architects.

The district judge evidently entertained that view, maintained the suit, and rendered judgment. Finding that the sub-contractors had not been paid in full, and were entitled to a balance on their contract, he adjudged their respective differences and gave them judgment for the balance due, and he allowed the plaintiffs the amount of their demand less this reduction.

Entertaining this view and appreciation of the controversy, the discussion is narrowed to a very restricted limit, for it is to be observed that defendants’ contention mainly is, that the building had not been completed in a good and workmanlike manner, to the satisfaction of the architects, and their insistence is, that they have a right to withhold fiifteen per centum of the contract price “until the building is completed and accepted by the architects.”

It is also to be observed that the defendants do not, for themselves, deny the completion of the building, much less do they set out in detail or in substance any defects or faults or imperfections in the structure. They do not deny that they are in full possession and use of the edifice for the purposes for which it was erected, and in the absence of such averment and denial, we feel authorized to assume that no such fault or defect existed at date of their acceptance of the work without either protest or complaint.

It is equally significant that, notwithstanding the architects withheld certificate from the plaintiffs, on the faith of which they were entitled to receive final payment from the defendants, they do not assign as a reason for their refusal that there were any faults, defects or deficiencies in the construction of the edifice, but they put their declination to furnish the certificate on the ground that the plaintiffs did not furnish them proper evidence that all sums due for materials and to the sub-contractors had been paid.

On the merits, it is urged by defendants’ counsel that there is testimony to the effect that there are several small amounts due for materials furnished, aggregating about one thousand six hundred and twenty-five dollars and ninety-seven cents, while on the other hand it is shown the true amountof said claims aggregate only seven hundred and twenty-one dollars and fifty cents. These claims are independent of the claim of the sub-contractors who have intervened. While it is true that some of these claims have not been registered, so as to affect the building with a lien, and those creditors have not been made parties, we think it but just and right that their claims should be protected by our decree.

Defendants also insist upon the cost of additional changes and alterations in the contract, that were made at the suggestion of the architects, amounting to one thousand four hundred and seventy-nine dollars.

It is evident that these items were properly disallowed by the judge a quo, as they were not set out in the defendant’s answer, and they are not satisfactorily established by evidence.

The judge a quo rejected entirely the defendant’s reconventional demand for what is termed liquidated damages, consisting of fifty dollars for every day that the defendant delayed the completion of the edifice, after the date fixed in the contract for its completion and acceptance.

The contract was made on the 23d of October, 1891, by and between Henry P. McDonald, as agent for and on behalf of the defendants, and the plaintiffs. It provides that the work shall be commenced at once, and completed by the 23d of June, 1892; and for any delay of completion it is agreed that the second party (plaintiffs) shall pay damages at the rate of fifty dollars per day, which may be deducted from the contract price, or recovered Dy suit, etc. See. 11.

“The second party (plaintiffs) assumes the risk of any accident or damages that may occur to his work or material, or to persons or property about the work pending its completion,” etc. Sec. 12.

Counsel for the defendants admit that the congregation began worshipping in the church, for the first time, on the 16th of April, 1893, though the church was not finished, they say. •

They claim, for the intervening time of two hundred and ninety-nine days, at fifty dollars per day, an aggregate sum of fourteen thousand nine hundred and fifty dollars, though their prayer is for twenty-nine thousand and fifty dollars for five hundred and eighty-one days’ default.

Of the plaintiffs’ defences to their reconventional demand, the defendants say, in their brief:

“ Plaintiffs seek to explain the delays, and to relieve themselves from the effects thereof, by testimony going to show that the delays were, in part, due to matters not in their control. For instance, they claim that the plans had to be corrected before they could make a start; that the cement called for in the specifications stained the stone, and they could not, therefore, continue the work; that the tower of the church leaned, because of faulty construction, based on defective and inadequate plans and specifications. Evidence in support of these defences was offered, and objected to, on the ground of ineompetency and irrelevancy. The objections were overruled, and bills of exception were reserved. The objections, it is submitted, should have been sustained.”

¥e think the objection was not well taken, for it was both competent and relevant to enquire whether the “ delay of completion” of the edifice after the date fixed for its completion was the result of any accident or damage done to the (plaintiff’s) work or material.

For, we read in the contract this pertinent and controlling provision, vis.:

The party of the second part (plaintiffs) agree that they will “furnish all labor and material, and erect complete, St. Paul’s Church * * * in exact accordance with the plans and specifications prepared therefor, by McDonald Bros , architects, and under their inspection and supervision,” etc. Section 1 of contract.

All of the defences enumerated appear to come clearly within the contemplation of that section.

All the plaintiffs undertook to do was to furnish the labor and the material, and to do the work. The plans and specifications for the work was matter for the architects alone.

In order to put the blame on the plaintiffs the burden of proof was upon the defendant to show, by fair preponderance of proof, that the work was not performed by the plaintiffs in accordance with the plans and specifications furnished, them by the architects; and also that the delay in the completion of the structure on time was due to the faultiness of their workmanship or material.

This burden the defendants did not discharge. From the record we find that the first delay was occasioned in November, 1891, by a necessary change which the architects had to make in the drawings and plans for the edifice, and in consequence thereof the manufacturer of the ironwork was delayed, and no progress with the work was made until the 28th of December, 1891. The foundation of the building could not be commenced until the 18th of January, 1892. The architects notified the plaintiffs to stop all work and wait for the revised plans, and they acted accordingly.

The second delay was occasioned by the cement staining the stone. This occurred in March, 1892, and lasted about one month. The work was suspended on that account, on the order of the architects.

There is no doubt of the fact that plaintiffs used the identical cement that is called for by the contract, and it is neither proved nor contended that it was any fault of the plaintiffs that the cement stained the stone. It is in proof that the cement was mixed exactly in accordance with the instructions of the architects and their superintendent.

The third delay was occasioned by the leaning of the tower, caused by faulty and defective specifications.

The record shows that the first indication of any defect in the tower is to be found in a letter which was addressed to the architects by their manager. It runs thus:

“New Orleans, May 24, 1892.

“McDonald Bros., Architects:

“ Dear Sirs — I notice for the first time, to-day, a crack over the front door on Oamp street, the exact cause of which I have not yet been able to discover,” etc.

To this letter the architects wrote the following reply, viz.:

“Louisville, Ky., May 26, 1892.

St. Paul’s Church, Charles R. Coats, Esq., No. 66 Baronne street, New Orleans, La.:

1 ‘ Dear Charles— * * * Referring to the crack over Oamp street entrance, I am satisfied, without receiving your report, that it is due to the slight want of settlement which will necessarily take place on the side of the tower where the load of the gable comes on it.

“ Have no apprehension about it. Keep it concealed as to avoid attracting any attention to it, and when the proper time comes to close the gable we will simply cut it out and let it come together. If anyone remarks it explain the situation. * * *

“Yours truly,

“McDonald Bros.”

This correspondence explains itself.

And we can not imagine what more conclusive evidence could be required of the fault of this defect in the building of the tower being that of the architects. They do not even suggest to their own subordinate that it was the fault of the plaintiffs.

This occurred, as the dates of the letters will show, on the 24th of March, 1892, prior to the date fixed in the contract for the completion of the building, the 23d of June, 1892.

The testimony substantially shows that the tower was built in conformity with the plans furnished by the architects, and that the superintendent of the architects notified plaintiff’s workmen to stop work and go away on account of the threatened fall of the church tower. It shows that it was suffered to remain in that condition for six weeks or two months before the work was resumed, and that five or six months’ time was occupied in getting the tower righted up again.

The weight of the testimony is to the effect that if the trouble and delay occasioned by the leaning of the tower had not occurred, the edifice would have been completed on time. That all the laborers and material were on the ground and in readiness at the time of the occurrence.

Without going any further into the detail, we will state our conclusion to be that the responsibility for the defective tower is upon the architect and not upon the plaintiffs, for it is evident that the leaning of the tower was occasioned by the primary defect in the plans and specifications for which the architects were responsible, and not by the faultiness of the material or workmanship for which the plaintiffs were responsible.

And in confirmation of our theory, while in no way influencing our opinion, we may say that the fact has been called to our attention that the defendants have a suit against the architects on that score, and that suit gives rise to the suggestion that in this suit they are exhausting their recourse against the plaintiffs in order to justify their demand against the architects.

Altogether our conclusion is that the judgment rendered by our learned brother of the lower court has done substantial justice and should be affirmed, saving the rights, however, of the material men to the extent of seven hundred and twenty-one dollars and fifty cents, or so much thereof as may be judicially established.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with the restriction that it shall not be-enforced until satisfactory provision is made for the settlement of the claims of material men, to the extent of seven hundred and twenty-one dollars and fifty-five cents, or so much thereof as may be judicially established.