text:
    No. 11,556.
    Aaron Davis vs. W. H. Stuart et al.
    Allegations in a suit, it is charged, were libelous and caused damage for which the defendant should pay.
    The suit in which the allegations were made was not terminated in favor of plaintiff in the court in which it was brought.
    The funds set aside for the payment of debts of a succession were transferred to another tribunal to abide the result of a judgment.
    At the time of the transfer plaintiff (who could have objected to the transfer) was not a party to the suit in the court to which the funds were transferred.
    The plaintiff abandoned the first suit (that in which the allegations complained of were made) and sought payment by rule in the tribunal to which the funds had been transferred and left the issue in the first suit untried.
    A plaintiff can not maintain an action for the malicious prosecution of a civil suit until after the legal termination in his favor of the suit complained of.
    The rule supra may be said to be subject to exception. Plaintiff’s cause does not fall within the exception.
    In addition, the allegations complained of, even if the suit had been finally decided in plaintiff’s favor, do not recommend themselves as having given cause for action in damage's.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Carroll & Carroll for Plaintiff and Appellant.

      Joseph Brewer and Chrétien &_Suthon for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The defendants, individually and as testamentary executors, opposed an account presented by the administrator of the succession of Myra Clark Gaines, and objected to the payment of a large sum to plaintiff.

The claim was evidenced by a promissory note drawn by the partnership of John Klein & Co. to plaintiff’s order.

The late William Stuart, father of the defendants, was a member of that firm.

The note was secured as to its payment by a pledge consisting in part of a judgment obtained by W. H. Wilder against William Wallace Whitney, administrator for the estate of Myra Clark Gaines, and the transfer of a bond, both amounting to twenty thousand dollars, to be paid by preference to secure claim of Klein & Co., due by W. H. Wilder for thirteen thousand and fifty-five dollars, bearing interest at eight per cent, from October 14,1890, and ten per cent, attorneys’ fees and costs, amounting, at the time the note was made and the pledge was transferred to plaintiff by Klein & Oo., to sixteen thousand and eighty-six dollars and eighty-six cents.

John Klein & Co. transferred to plaintiff the note and the pledge they held.

The plaintiff alleges that it was the duty of the executors of William Stuart to assist him in collecting the amount due from the succession of Myra Clark Gaines under the judgment pledged to him to secure the payment of the note, but that instead they interposed an opposition in the District Court, and therein declared under oath that he had no real or actual interest in the sum of money he claimed, or in the judgment in question; that it was transferred to him as a mere convenience; that it was a simulation in the interest of John Klein, or of some other person unknown to them, and that the opponents further declared that the signature of William Stuart to the assignment of the Wilder judgment to the plaintiff was made or signed under duress, and in error and without knowledge of what he was signing.

It is charged that the filing of the opposition containing substantially the foregoing averments and the unwarranted course of opponents were a slur and reflection upon plaintiff, and that the denial of the validity and genuineness of his promissory note and pledge prevented him from exercising his right of pledge and from selling the judgment pledged. That he was compelled to employ counsel to protect and vindicate his good name and represent him on the trial of the opposition.

Plaintiff further avers that before the opposition had been acted upon by the court a suit was filed by the three executors of the Stuart estate, personally and as executors, against John Klein, Mrs. Sarah L. Shotwell and others, in Division “C ” of the District Court, over which Judge Monroe presides.

That on the trial of the opposition judgment was rendered in the Division “D,” over which Judge Rightor presides, directing that the administrator of the succession of Myra Clark Gaines should place the amount of sixteen thousand two hundred and sixty-six dollars and sixty-three cents as due plaintiff, subrogee of John Klein & Co., in the registry of the Civil District Court to await the judgment of Division “ C ” of that court as to whom the sum belonged and was payable.

That the administrator was willing to pay the amount to him provided the opponents consented.

That he had borrowed money on the note as a security, and that the lender demanded payment and threatened prosecution to enforce payment, thereby greatly distressing and embarrassing him; that he explained to opponents the facts and circumstances connected with the consideration he had given for the note, informed them that he was pressed by his creditors and offered to furnish them bond and security against loss or damage, but that the opponents refused to consent to payment of the amount, and that he was in consequence compelled to employ counsel to take further proceedings in his behalf.

That he filed a rule in the case of Succession of William Stuart vs. John Klein et al., and, after setting up such of the foregoing facts as were necessary to be averred, he suggested to the court that the amount due by the succession of Myra Olark Gaines, which has been transferred to him, deposited as aforementioned, was due and should be paid to him.

That the executors of the Stuart succession and other parties in interest were ordered to show, cause why he should not be paid. That all other parties were willing that he should be paid, and joined him in the rule. That, owing to the opposition of the executors of the Stuart succession, who also opposed payment personally, he was compelled to introduce testimony in support of his claim. He charges that the action of the defendants was arbitrary, wicked and malicious; that they acted in bad faith; that they insinuated under oath that he would take part in and lend himself to the.perpetration of fraud and wrong and take part in illegal acts. That they swore to false statements without evidence against him, and without making proper inquiry in the premises; that they were guilty of libel.

That, after full hearing on the rule, judgment was rendered in his favor for the amount he claimed.

He refers to his honorable name in the cofnmunity and to the anguish and sufferings to which he was subjected by the charges made. He did not know how long it would be before he would have an opportunity to vindicate his good name. He feared that in the meantime his standing and reputation would suffer.

He avers that he has been subjected to loss of time and trouble for which defendants are responsible, also for the attorneys’ fees which he has paid, and for the anxiety of mind and injury to his feelings directly caused by false and malicious allegations, averments and libel, and that they should be conde.mned to pay him vindictive damages.

For loss of time and trouble he claims.......................................................... $500 00

Attorneys’ fees......................... ................................................................ 750 00

Anxiety of mind and injury to feelings........................................................... 500 00

Vindictive and punitive Carnages................................................................. 1,000 00

The foregoing sets forth plaintiff’s ground of action, to which the defendants excepted and urged that plaintiff’s petition disclosed no-cause of action.

Judgment was rendered maintaining the exception, from which plaintiff appeals.

The defendants’ counsel argues that the allegations of the opposition of which the plaintiff complains presented issues- before the court in which the opposition was filed that were decided against him, and that he acquiesced in the decision.

We do not infer from the allegations of plaintiff’s petition thatthe issues between him and the defendants were directly determined in Division “ D,” in which court the opposition containing the alleged offensive averments were filed. That court, however, after hearing the parties, did not pass upon the issues presented. The court had the funds deposited to await the decision of another court in a suit in which the plaintiff was not a party. No appeal was taken from the judgment. The proceedings were closed by the decree. Neither of the parties sustained their claims in Division “D” to the amount involved. The fact remains that the plaintiff had the right to vindicate his good name, if injured, byopposing the transfer and insisting upon trial in the court in which the opposition was filed. He did not, in the first court, the court in which the opposition was filed; successfully controvert opponent’s position. The funds claimed, in so far as the record discloses, were transferred without objection to another court, to await a judgment in a suit to which the plaintiff was not even a party. The plaintiff confirmed the correctness of the court’s action by filing a rule in the suit of Stuart ex rel. vs. Klein et at., in Division “ 0 ” (to which he had not previously been a party), and claiming the funds transferred. It is not alleged that the defendant reiterated the alleged offensive allegations in answer to the rule. Thus, in a different court, upon other issues, the plaintiff recovered the amount of his note and pledge. The suit was not terminated in favor of the plaintiff in the court in which it was brought.

That the suit must have been prosecuted to the end before right of action for a malicious prosecution of a suit could arise is sustained by several decisions of this court.

It is true that they were rendered in cases in which conservatory writs had been issued, as in the case of Murphy vs. Redler, 16 An. 1; a similar rule was announced in an injunction. The Butchers’ Union and Slaughterhouse Company vs. Howell, 37 An. 280, 282. The principle applies.

In a number of jurisdictions it is well settled that a person can not sustain an action for damages caused by a suit against him until after a legal termination of that suit in his favor. Wood vs. Laycock, 3 Met. Ky. 192; O’Bryan vs. Barry, 106 Mass. 380; Green vs. Moore, 29 Cal. 644.

Text writers announce exception to this rule when, for instance, the defendant has control of the issues of the suit in which the libel was committed.

There is nothing of the kind here and the case does not fall within any of the exceptions.

We have not limited our examination to the point just decided. The graavmen of plaintiff’s complaint is that the allegations in the opposition of defendants were libelous and malicious.

By alleging in their opposition that the signature of William Stuart to the assignment and subrogation of the Wilder judgment to the plaintiff, was made or signed under duress and in error, without knowledge of what he was signing, it is not charged that the plaintiff, Davis, was a party to the alleged duress and wrong.

The payee of a note and the owner of a pledge of which a firm are the makers and pledgors may have acted in good faith. It is not charged that he, 'plaintiff, was a party to the alleged tort. The imputation of wrong-doing is not brought home to the plaintiff.

The simulation alleged presents an issue of which a creditor may properly complain if recklessly and maliciously made.

But an attentive consideration of the facts set forth has not convinced us that the opposition contained declarations injurious and damaging to the plaintiff for which he should recover an amount. It is not shown by the allegations that plaintiff has sustained some particular damage.

“ It is not enough, however, for the plaintiff to declare generally that the defendant brought an action against him ex malitia et sine causa per quod, but he must allege and show the grievance specially. Otherwise parties would be constantly involved in litigation trying over cases that may have failed upon the mere allegation of false and malicious prosecution. McNance vs. Minke, 49 Maryland, 122.

It is not manifest that the opponents, defendants here, availed themselves of the occasion to gratify malice and ill will, nor that the allegations were calculated to cause great mental anguish.

These actions have never been much favored. A clear case must be alleged to enable a plaintiff to sustain the charge that the forms of justice have been perverted to satisfy private malice. Laville vs. Biguenaud, 15 An. 606.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellants’ costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,705.
    Cyrus H. Jones vs. The Texas & Pacific Railway Company.
    The affirmative testimony of two witnesses outweighs the negative testimony by which it is sought to contradict them. Hepburn vs. Bank, 2 An. 1007.
    In a suit for damages for injuries to his wife the husband is a competent witness. C. C., Art. 2281; Act 1888, No. 59.
    Railroad trains should be stopped to afford passengers necessary time to get off at-their destinations; and if the passenger is injured in attempting, under the directions of the conductor, to alight at his station, from the moving train, the railroad company will be responsible for the injuries. 2 Harris, Damages by Corporations, Sec. 596; Lehman vs. Railroad, 37 An. 705; Odom vs. Railroad Company, 45 An. 1204.
    APPEAL from the Tenth Judicial District Court, Parish of Rapides. Andrews, J.

      John C. Ryan for Plaintiff, Appellee.

      M. G. Moseley and Howe, Spencer & Cocke for Defendants, Appellants.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, with his family, a passenger on one of defendant’s trains, sues for damages for injuries to his wife caused by a fall, due, it is alleged, by being compelled to leave the train before it stopped. The jury gave twenty-five hundred dollars damages and defendant appeals.

The testimony of the plaintiff is to the effect that the train checked up when it reached the station; that he got off with his two children, and just at the time the conductor took the plaintiff’s wife by the arm to ^assist her from the platform of the coach, the train moved forward, resulting in her fall, producing the injuries for which this suit seeks compensation. If this testimony is accepted, it puts the responsibility on the company. The plaintiff’s daughter, sixteen years of age, confirms her father’s testimony to this extent, that under the conductor’s direction the mother was compelled to leave the train while yet in motion, and against her remonstrance that she could not get off when the conductor told her to do so. As her daughter implies, the mother was pulled off.” If the young lady speaks the truth, it shows that no time was allowed to enable the passenger, an elderly lady, to leave the train at her destination, and that the conductor insisted she should leave, or at least assisted her in the attempt, while the train was in motion. The fall, according to' the testimony, was with violence, producing injuries to which both witnesses testify. On the following morning the plaintiff’s station having been reached before daylight, it is in evidence, the plaintiff complained of rough handling by the train people. When plaintiff’s home was reached, some hours’ travel from the station, his testimony is she was so crippled as not to be able to put her foot to the ground. The physician then called, with no personal knowledge of the accident, testifies tor the injuries she exhibited, a sore arm and leg, a bruised side and traces of concussion, apt, in his opinion, to cause impaired vision,'.or loss of sight. The husband’s testimony is she fell on a cinder surface at the station, and the cinders, as he expressed it, were “ indented ” in her face and hand. The physician testifies he picked the cinders from her face. The daughter does not speak as to the fall, because the train going forward, and she still on the coach front, was interposed between herself and her mother. Ac-cordingjto the testimony of the daughter, the train cheeked up to let her off, fifty feet from where her mother alighted.

The testimony for defendant is simply a negation of every state - ment of the plaintiff and his daughter as witnesses. -There was no hurrying the old lady to get off the moving train; there was no fall, and her injuries were fabrications, is the case the defendant claims is established. It rests mainly on the testimony of the conductor to be accepted, it is contended, because wholly disinterested, and as completely discrediting that of the plaintiff and his daughter. Yet if the fall of the aged woman did occur, the conductor testified with the natural motive of exculpation. We can not accept the conclusion that his negative testimony is to displace and stamp with falsehood the clear and positive affirmative testimony of two witnesses. Nor can we appreciate that because the conductor is shown to have had hold of the left arm of the lady, it was physically impossible for her to fall on her right side. It is urged on us, too, the daughter did not see the fall. That she does not testify to it impresses us with her truthfulness. According to her testimony, unable to get off the train because of the failure to stop, the moving train shut out the view of her mother after she alighted from the train. The daughter does testify to the method, if not compulsion, her mother, under the conductor’s direction, left the train, and the circumstances impress us as the natural prelude to the subsequent fall of which the plaintiff was the witness. The porter, brakeman and fireman were also produced as witnesses. The porter in the baggage car putting off the trunks, the fireman and brakeman at their posts of duty, were not competent to speak of the circumstances under which the plaintiff’s wife left the front of the passenger coach. One of these witnesses, thirty-five feet away, underbakes to swear that in the darkness, at 3 o’clock of a March morning, he saw the daughter standing with her parents when they alighted from the train. This was to contradict her statement that instead of leaving the train with them she was carried fifty feet beyond, when the train stopped to enable her to get off. But the witness who groups her with her parents at the moment they left the train is brought on cross-examination to state the darkness, the distance he stood and finally that his testimony was a guess. The three train officials swear there was but one stop at the plaintiff’s station, and hence the conclusion is pressed on us that father, mother and daughter got off at one time. This again is to negative the daughter’s testimony on that point. If the train was moving when her mother alighted, the checking or brief stop, if any before, might well be deemed no stop. The affirmative testimony of the daughter, distinct and positive as it' is, that she did not get off with her parents is commended to our ac-' ceptance as outweighing that of the train officials; there was but one: stop, when all the family left the train. The defendant impugns the veracity of the physician called to attend the plaintiff’s wife. It is’' suggested he fomented the suit, and is interested in the result. We fail to perceive the basis for the attack on him. His interest seems to be au expectation to be paid his fee, if the plaintiff, a poor man, recovers in this suit. We are to assume the defendant’s case exacts that he swears falsely; that the sore limbs, bruised side and cinders picked by him from the face of plaintiff’s wife were pure inventions of an ally in the conspiracy of plaintiff, his wife and daughter, to defraud the defendant. The two little sons of the plaintiff were also on the train. Comment is made they were not produced as witnesses. The circumstance, in our view, does not detract from the testimony in the record. We have given careful attention to all the testimony. It produces on our minds the conclusion that prompted the verdict of the jury entitled to weight on an issue of fact.

This suit for damages is to recover a community asset. There is no force in the bill of exceptions to the testimony of the plaintiff. C. C., Art. 228; Act No. 59 of 1888.

The damages awarded, we think, excessive. There is in our minds no doubt the plaintiff was injured, and that the services of a phy-' sician were requisite. The possible impairment of vision, not verified, as we appreciate the testimony, when the case was tried, is' conjectural and not the basis for any judgment. We will reduce the verdict.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now adjudged and decreed that the plaintiff do have and recover five hundred dollars, with interest from judicial demand, and costs of lower court, those of the appeal to be paid by plaintiff.


text:
    No. 11,689.
    The State of Louisiana vs. John Harris.
    The omission oí “ The State of Louisiana” in the enacting clause of Act No. 69 of. 1890 will not aifect the competency of the District Courts of the State sitting in the districts organized by that act; such courts, irrespective of said act, even' if it were defective, being created by the Constitution.

      APPEAL from the Seventh Judicial District Court, Parish of Tensas.' Montgomery, J.

      M. J. Cunningham, Attorney. General, and Joseph E. Bansdell’■ District Attorney, for Plaintiff and Appellee.

      B. H. Snyder, Jr., for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant, convicted of murder and sentenced, appeals, relying on a motion in arrest of judgment, assigning as its ground the unconstitutionality of the Act No. 69 of 1890, creating the judicial districts of the State, by which act Tensas, with East Carroll and Madison, form the Seventh Judicial District.

The enacting clause of this act is: “Be it enacted by the General Assembly.” The Constitution of the State declares: “The style of the laws of this State shall be: 1 Be it enacted by the General Assembly of the State of Louisiana.’ ” The omission of the “ State' of Louisiana ” in the enacting clause of the act, it is urged, renders the act void. The proposition presented to us thus assails the existence of the District Court throughout the State, except the courts of the parish of Orleans, because of this asserted defect in the act of 1890, organizing the judicial districts.

It could hardly escape comment, in dealing with this motion, tha^ it lies only for defects in the indictment. The motion in arrest can' not be used to present a question of the character presented here. Again, in the interest of public order, the authority of the judges of' the courts of the State can not be drawn in question by impugning their competency to pronounce judgments or pass sentences. The' acts of a defacto judge, holding by commission from the State,' carry at least such presumptive validity as precludes an attack upon’ his competency attempted by the defendant, the subject of this sentence. It is utterly inconsistent with the dignity and efficacy of judicial proceedings, if the defendant in the civil case were permitted to dispute the competency of the judge to render the judgment, or if the defendant in the criminal case, tried and convicted,' were at liberty to arrest the sentence by putting at issue The authority of the judge to exercise his functions. In disposing of this case, it is proper to state the objections to the motion apart, and not connected with the question the rnotion is designed to present. 1st Greenleaf on Evidence, S. 83, 92.

The Constitution itself, is the basis on which the District Courts of this State rest, It provides for such courts in each of the judicial districts, and for the election of the judges of such courts. The Constitution organized the judicial districts, conferring the power on the Legislature to make changes. Constitution, Arts. 107, 108, 109, 128 et seq. In our view a defect in the legislation creating, or rather reorganizing, the judicial districts, if such defect existed, would not affect the competency of the Di-.trict Court sitting in the parish of Tensas, or of the judge duly elected and commissioned by the executive. The Constitution itself would, in our view, sustain and avoid the obliteration of the District Court of the State, even if the defect existed in the act of 1890, merely rearranging the parishes into judicial districts.

Whether the distinction so familiar in the construction of statutes of provisions merely directory, and those mandatory in their character, can be applied to the Constitution, and the limit of such application, if admissible, is not free from difficulty. It has been held under the Constitution of North Carolina containing a provision similar to our own on the point that the entire omission of the enacting clause would vitiate the statute. It has been held under the Constitution of Mississippi, with the same provision, aix equivalent word may be used for enacted. This decision recognizes that literal compliance with the Constitution in this respect is not essential. The Supreme Court of Texas has held the provision in the organic law that all bills shall be signed by the officers of both houses of the Legislature, was mandatory. Here, the omission is only the words “of the State of Louisiana.” There remains the substance of the enacting words required by the Constitution. The conclusions of the New York and Ohio courts, reviewed by Judge Cooley in his Constitutional Limitations, tend to sustain the distinction between mandatory and directory provisions, even as applied to the organic law. Cooley Constitutional Limitations, Chap. 4. Our conclusion is, at least, in view of the aid the judiciary establishment of the State afforded by the organic law itself, there is no warrant for us to hold that the District Court has no constitutional existence, because of the supposed defect in the act of 1890.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Watkins, J.

text:
    No. 11,499.
    Frank P. Gravely vs. Southern Ice Machine Company.
    Any service which would be sufficient, as against a domestic corporation, may be authorized by the statute of a State to commence an action against a foreign or non-resident corporation It may, accordingly, be made upon the president of a foreign corporation during the time he may be temporarily abiding within the jurisdiction of the court when the suit is brought.
    A judgment rendered in an action thus commenced against a foreign corporation will be valid and can be enforced against any property at any time found within the State.
    A party having undertaken, on behalf of a foreign corporation, to effect sale of an ice machine and accompanying p trap hern alia to persons domiciled in this State, for a designated and fixed commission on the amount of the sale effected, payable when the plant is turned over to the purchaser and settled for at a given date, Is entitled to payment of such commissions at that date, notwithstanding litigation arises between the contracting parties with reference to the vendor’s fulfilment of its contract, which operates a delay in settlement betwi en them.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Rightor, J.

      Branch K. Miller for Plaintiff and Appellee.

      Denegre & Denegre for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought upon an alleged contract for the recovery of six thousand one hundred and seventy-five dollars, as commissions of five (5) per cent, on sales made of its goods.

Defendant fifst interposed an exception to the want of citation— it “ being a non-resident corporation of tbe State of Tennessee, and not susceptible of being brought into court except by attachment.”

This exception having been overruled, answer was filed, which pleads a general denial, coupled with the averment “that if the •court should hold that any compensation is due to plaintiff, it is only on such amount as may be received by the defendant from McDonald .& Hart.”

The answer further states that it made a sale of an ice machine plant to McDonald & Hart, of the city of New Orleans, to be by it manufactured in Chattanooga, Tenn., and shipped to them. “ That said ice machine plant was by it manufactured in Chattanooga, and shipped to McDonald & Hart in New Orleans, who agreed to pay for the same, but have not yet done so. That defendant has been forced 'to bring suit in this (the district) court for the amount due on said machine, and that Hart & McDonald contested, claiming that nothing is due to defendant, and that it should be compelled to take back the machine and refund so much of the purchase price as has ^besn paid on account.”

The court a qua first gave the plaintiff judgment for five thousand ' five hundred dollars, less a credit of two hundred and fifty dollars, . but on a motion for new trial the judge revised his previous decree ■ ex proprio motu, and reduced the amount awarded the plaintiff to two thousand five hundred dollars, less credit of two hundred and fifty dollars.

It is from that judgment that the defendant has appealed; and the plaintiff has answered the appeal, and, in his answer, insists that the judgment in his favor should be increased to five thousand five hundred dollars, and affirmed as thus amended.

I.

In this court the defendant insists that the exception taken by it in the lower court should have been sustained and the suit dismissed. That is to say that the defendant being a Tennessee corporation it could not be brought into the Civil District Court of the parish of Orleans, La., by means of citation personally served upon its president while temporarily sojourning here, and thereby subject it to a judgment of that court.

Under our law a corporation is an intellectual being, who may be sued in our courts as natural persons are, and in quite a similar ease ■we held and treated a New Jersey corporation as a “ foreigner,” in the sense of the Code of Practice 163 — that is to say “ one who has , no known place of residence in the State,” and who may, consequently, be cited wherever it is found. State vs. Buck and Fruit Company, 46 An. 656.

That suit was brought in the Civil District Court of the parish of Orleans against Charles 0. Buck, of Baltimore, Md., and the Plaque - .mines Tropical Fruit Company, incorporated under the laws of New .Jersey, of which Charles 0. Buck was president.

In the lower court the defendant excepted to the jurisdiction of the court rdtione materiee et persones, but same was overruled by the .judge a quo, and we reached the same conclusion at which he arrived and sustained his ruling.

On that question we said:

■ “ We are of the opinion that (the suit) was correctly instituted in the parish of Orleans, notwithstanding the res is situated in the parish of Plaquemines, the defendant Buck having been personally ■ served with citation while temporarily abiding in the city of New ; Orleans, and he being at the time president of the defendant company, and both being citizens of other States than Louisiana.”

Again:

“ Considering the question from the standpoint of the defendants’ . personal domicile, it is clear that they had no place of domicile or residence in the State that was known to the plaintiff at the incep- . tion of the suit.

“ The property being situated in this State, and the defendant, Buck, being temporarily present in the parish of Orleans, it was competent for the court of that jurisdiction to cite him to appear and answer therein ; and he being president of the defendant com.pany, it could be likewise cited into court.” Id., 666.

• That was a very important litigation, involving large values, and it was defended by able counsel. After final judgment was rendered . against the defendants by this court, they prosecuted a writ of error _ to the Supreme Court; the writ was dismissed and the judgment of this court affirmed.

We have ventured this statement, because counsel for defendant so strongly rely upon decisions of the Supreme Court, as affirming the principle for which they contend. It seems quite evident to our minds that, if it had been applicable to the case of any non-res-dent corporation, it would have been applied in that case.

In this case we have all the conditions of that case — the person and the res being within this jurisdiction — the citation was good and effective, within the spirit and intendment of our Code.

The case of Hume vs. Railway Company, 8 Bissel, 31, is not applicable, because the suit was brought against an alleged agent of the non-resident corporation, and the court simply held that “ the presence then of the agent of a foreign corporation is not the presence of the corporation within the meaning of the act, any more than the presence of the agent of a natural person, a citizen of another State, is the presence of the principal.”

That was a suit in damages for a railway accident brought in a Federal court.

On the contrary, in Hagermann vs. Empire State Company, 97 Pennsylvania State, 534, it was held that “ suit may be instituted against a foreign corporation by the service of process upon an agent of said corporation within this commonwealth in the mode prescribed by the act of March 21, 1849 (3 Pamph. L. 216), notwithstanding the fact that the corporation has failed to establish an office in this commonwealth,” etc.

In Pope vs. Manufacturing Company, 87 New York, 137, it was held that any service which would be sufficient as against a domestic corporation may be authorized to commence an action against a foreign corporation.

In that case the action was commenced by a summons served on the president of the non-resident corporation,' who was, at the time, within the jurisdiction of the State court.

The court say:

“A judgment to be rendered in an action thus commenced against a foreign corporation will be valid foi; every purpose within this State and can be enforced against any property at any time found within this State. Its effect elsewhere need not now be determined.”

And these decisions do not differ materially from the jurisprudence of the Supreme Court, because they have held in Christian Union vs. Yount, 101 U. S. 352, that “although, as a general proposition, a corporation must dwell in the State under whose law it was created, its existence as an artificial person may be acknowledged and recognized in other States.”

This is but the affirmation of the principle that was announced by that court many years ago, and on which many subsequent opinions have been predicated; in Lafayette Insurance Company vs. French, 18 Howard, 404, the leading case on the question, the court say:

“In more general terms the doctrine of this court, as well as the courts of many of the States, is, that the act of Congress was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result; nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another.

“This corporation, existing only by virtue of a law of Indiana, can not be deemed to pass personally beyond the limits of that State. Bank of Augusta vs. Earle, 13 Peters, 519. But it does not follow, necessarily, that a valid judgment could be rendered against it only in that State. A corporation may sue in a foreign State by the attorney there; and if it fails in the suit, be subject to a judgment for costs. And so if a corporation, though in Indiana, should appoint an attorney to appear in an action brought in Ohio, and the attorney should appear, the court would have jurisdiction to render judgment, in all respects as obligatory, as if the defendant were within the State. The inquiry is, not whether the defendant was personally within the State, but whether he, or some one authorized to act for him in reference to the suit, had notice and appeared; or if he did not appear,'whether he was bound to appear or suffer a judgment by default.

“And the true question in this case is, whether this corporation had such notice of the suit, and was so far subject to the jurisdiction and laws of Ohio, that it was bound to appear or take the consequences of non-appearance.”

After further discussion of these general principles applicable, the court then said:

“Nor do we think the means adopted to effect this object aré open to the objection that this is an attempt improperly to extend the jurisdiction of the State beyond its own limits to a person in another State. Process can be served on a'corporation only by making service thereof on some one or more of its agents. The law may, and ordinarily does, designate the person on whom process can be served. For the purpose of receiving such service, and being bound by it, the corporation is identical with such agent or officer. The corporate power to receive and act on such service, so far as to make it known to the corporation, is thus vested in such officer or agent(Our italics.)

Now what is the case before this court?

The defendant, a foreign corporation, dwelling in the State of Tennessee, sent its recognized agent into the State of Louisiana endowed with special authority to employ the plaintiff to negotiate with McDonald and Hart, of the city of New Orleans, for sale to them of an ice manufacturing plant. That the plaintiff was thus employed, and through his agency a sale of a plant was negotiated with said parties at the price of one hundred and ten thousand dol - lars, and same was by the defendant afterward established in said city.

Disagreement between these contracting parties arose; a suit followed in the courts of this city and State, which is still pending.

While within the State of Louisiana and in this city superintending this work, the president of the corporation was personally, cited and served with process in this case, asking the enforcement of plaintiff’s demand for compensation for commissions under his contract with the company.

In this situation we are of opinion that the District Court thereby «acquired full and complete jurisdiction over the defendant corporation pro hae vice.

The principle to be kept in mind, and on which the jurisdiction of the Federal courts is predicated, is the citizenship of the defending ■corporation, and, unless the character of the business of the corporation conducted in a foreign State be of such a character as to constitute it a citizen of the latter State pro hac vice, the Federal jurisdiction is not complete.

But in a State court the rule is different — the only question there being one of proper and effective service of process upon an officer legally representing the corpoi’ation, whereby it can be brought into court and subjected to judgment; or of proper notice upon an officer of the corporation to bring the matter in litigation to its attention, and require its action.

The rule in such cash is identically the same as that in reference to any domestic corporation — the effect of the judgment to be rendered being confined to its property within the jurisdiction of the courts of the State.

Our conclusion is that the service of citation on the president of the defendant corporation, while temporarily abiding here, is a good and effective service, on which a valid judgment may be founded, which may be enforced against any property of the defendant company within the State.

II.

On the merits, we think the case is plainly with the plaintiff.

On the trial there was evidence adduced over the defendant’s objection and exception which tended to show an alteration in the terms, or rather a diminution of the amount of the commissions the plaintiff was entitled to receive under his contract.

■. The objection taken was, in effect, that the plaintiff should be confined to proof of the identical contract alleged upon.

But the record discloses the fact that the counsel for the defendants first opened up the inquiry as to the letter of date October 21, 1891, which the plaintiff addressed to the defendant, for, during the interrogation of one of its principal witnesses, the following occurred, viz.:

“Q. Does that letter correspond in any w-iy-with the agreement you made with Mr. Gravely — the letter dated October 21, 1891?

“A. This letter is exactly according to the agreement that we had on the Hart and McDonald matter — fifteen hundred dollars in bonds and one thousand dollars in cash.”

Thereupon the plaintiff’s counsel filed the letter in evidence.

This evidence does not show any. different contract from the one .alleged in the petition. It remains the same in all respects except as to the amount of commissions the plaintiff was entitled to receive under it.

This is not the case of suit on a contract and a recovery on a quantum meruit.

The evidence is in writing, and it forms a part of the contemporaneous transactions between the parties in reference to the ice machine plant that the defendant sold to Hart & McDonald, and delivered to them in this city.

It is both pertinent and competent evidence.

The following is the portion of the letter that is applicable, and we have clipped it from the defendant’s brief, viz.:

uI have also charged your account, as per agreement, two thousand five hundred dollars, commissions on sale to Hart & McDonald — one thoxisand payable in cash and one thousand five hundred in bonds of Municipal Ice Company; commissions on sale to Pascagoula Ice Company (L. T. Belt), payable seventy-five dollars in cash and six hundred dollars in stock of the company. Please send me credit memorandum of above.

In our agreement the question of when commissions are payable was not broached. I suppose, as is customary, they are payable when plant is turned over to purchaser and settled for.

‘ Please let me know if this is correct.

“ Yours truly,

F. P. Gravely.”

The part of the latter that refers to commissions on sale to the Pascagoula Ice Company may be disregarded, as that portion of the contract is not insisted upon.

The following is a part of the plaintiff’s testimony, viz.:

“ Q. According to your agreement with the defendant company, when were you to be paid whatever commissions were coming to you?

“A. I was to get one thousand dollars out of the first cash payment.

Q. To be paid by whom?

“A. Paid by Hart & McDonald to the Southern Ice Machine Company. And the balance was payable in bonds.

“ Q,. What time were you to get that payment?

“A. They told me that I would be paid when the work was completed ; and the work would be completed by the first of April, as they were under a penalty to have it completed by that time.

Q,. Did you expect to get paid on the first of April?

“A. Yes.

“ Q. Were you paid on the first of April?

A. No; nothing except that two hundred dollars.

“ Q. Do you know whether or not the defendant had any difficulty in collecting whatever money was due?

“A. Mr. Hart told me that he had paid something over fifty thousand dollars on account, and that the balance was not paid.

“Q. Your first arrangement, as shown by these letters, was that, you were to get five per cent, on all sales consummated through your agency ?

“A. Yes.

“ Q. How did that arrangement come to be changed to one thousand dollars in cash and fifteen hundred dollars in bonds.

“A. Because they said they had sold the machinery at a very low price and could nob afford to give me the full commission. And I told them that, under the circumstances, I would accept one thousand dollars in cash and the balance in bonds.”

The plaintiff says he was entitled, under his original agreement, to five per cent, commissions on the gross amount of the defendants’ contract with McDonald & Hart, which was one hundred and ten thousand dollars for the ice machine .plant sold to them.

Again, the following occurred in the course of the interrogation of the plaintiff, as a witness, viz.:

“ Q,. Have you received that one thousand dollars in cash and fifteen hundred dollars in bonds, which it is claimed you were to get under that arrangement, which was substituted for the original agreement?

“A. No; I have not received it, as I said I should have received it on the 1st of April, 1892.

Q. You did not receive it?

“A. No; I did not.

“ Q. Why do you say that you ought to have received it on the 1st of April?

“A. Because Mr. McArdle told me that his company was under a forfeit of six hundred to seven hundred dollars a day to have the plant completed on the 1st of April.

“ Q,. Did he say that he would have the plant completed by the 1st of April?

“A. Yes.

“ Q. Was it to be paid for then?

A. That was my understanding of it.”

During the interrogation of the president of the defendant company, as defendants’ witness, the following occurred, viz.:

“ Q. Mr. Herron, in the arrangement made with Mr. Gravely in regard to the payment to him of the one thousand dollars in cash, and one thousand five hundred dollars in bonds, was anything ever said between you, or put in writing as to the time when he was to get his payment?

“A. No, sir; it was understood that when the work was completed, and settled for, he was to get his commission.

“ Q,. Has that work been settled for yet?

“ A. No, sir.

“ Q. Has Hart & McDonald made settlement with the Southern Ice Machine Company yet?

“A. No, sir.”

This witness then states circumstantially the situation of the matter, as between Hart & McDonald and the company — the substance of which was that, after the latter had made a large cash payment on account, they declined to accept the plant, and demanded the revocation of the contract, and the restitution of the money they had advanced on the contract; they assigning as cause for this course of action, failure on the part of the company in complying with the agreement.

Hence the company brought suit against Hart & McDonald to compel them to perform their part of the contract — necessarily affirming full performance on its part.

It will be observed that the question which was propounded to the president was very guarded. The question was: “ In the arrangement made with Mr. Gravely in regard to the payment to him of * * * was anything said between you, or put in writing as to the time when he was to get this payment?” (Our italics.)

And the reply was equally guarded, for it was, viz.:

“No, sir; it was understood that when the work was completed and settled for, he was to get his commission.” (Our italics.)

But the president did not make the contract with Mr. Gravely, and he was not present when it was made. It was entered into in the city of New Orleans between the plaintiff and Mr. McArdle, as the per pro. of the company. This appears by the letter of the company of date October 23, 1891, in reply to the previous letter from the plaintiff to the company, pf date October 21,1891, previously quoted in this opinion.

It is as follows, viz.:

“Chattanooga, Tenn., October 23, 1891.

“Mr. F. P. Gravely, New Orleans, La.:

“Dear Sib — Yours of the 21st inst. to hand, and in reply would say our Mr. McArdle will be in New Orleans in a few days and will take up the matter in person.

“ Enclosed we return your letters.

“ Yours truly,

(Signed) “SOUTHERN ICE MACHINE CO.,

“ Charles Herron.”

There the company let the matter drop, and subsequently Mr. Mc-Ardle did take the matter up and consummate it with the plaintiff, and there were no further or other dealings between the plaintiff and the company direct in reference to it. Hence there was no such understanding between Mr. Herron and the plaintiff as he intimates. And it becomes quite clear, in view of this letter, why there was nothing said between them, and nothing put in writing on the subject of the arrangement made with Mr. Gravely in regard to the payment.”

In view of this evidence and in the absence of any countervailing statement on the part of Mr. McArdle, the affirmation of the plaintiff is undenied and undeniable.

In the light of these facts, the concluding part of the plaintiff’s letter, viz.: “ I suppose, however, as is customary, they are payable when plant is turned over to purchaser and settled for,” is explained to mean payable when the work was completed and turned over to the purchasers, Hart & McDonald, and, presumably, to be settled for, of course.

The statement of the plaintiff positively Axes the date of payment on April 1, 1892, and he assigns as a reason for making that statement that McArdle said the ice plant was to be, by that date, completed under the contract, and that it stipulated a daily penalty of six hundred dollars for non-completion after that date.

This statement was not denied on the other side. ■

The company is in court, asserting that McDonald- & Hart are due them the balance of the contract of ñfty-ñve thousand dollars, on the theory that the contract has been fulfilled, and that McDonald & Hart are in default.

The company has realized from McDonald & Hart the sum of fifty-five thousand dollars in cash, and has paid the plaintiff two hundred dollars on account, and now reverses its position and asserts that nothing is due until the end of its litigation with McDonald & Hart.

The payment of the two hundred dollars to the plaintiff, in our opinion, constitutes an admission of liability as to time when payment should have been made of the one thousand dollars in cash, at least; for, if two hundred dollars in cash were due, the one thousand dollars were due also.

But is it true that the defendant can halt proceedings here and. turn the plaintiff around to the chances of its litigation with Hart & McDonald being successful, and compel him to await its termination before asserting his demand? We think not.

That would place the plaintiff in the attitude of guaranteeing the defendant’s work in the establishment of the ice plant, and the safe transit and delivery of the goods sold. The business of the plaintiff was simply to solicit business — that is to say, to bring the company, into communication with customers; and in case that intercourse resulted in the sale of an ice plant he was entitled to commissions.

His work was then accomplished, and when the company’s contract was fulfilled and the plant turned over to the purchasers, his commission was due, as the settlement of the purchase price was then to be made. But if litigation resulted between the contracting parties with regard to the construction of the work, it could not interfere with the rights of the commission agent to receive the amount of fees stipulated to be paid upon the completion of the work.

On the company’s own theory, in its suit against Hart & McDonald, it had completed its contract, and was entitled to full payment of the balance due. With what consistency can it say to the plaintiff that it may be mistaken in that view after all? and hence nothing is due until the end of that litigation.

Suppose the company should lose the suit, and judgment be rendered therein comformably to the prayer of defendants, and it be decreed to make restitution of the fifty-five thousand dollars it had received, and the contract be canceled? Then, according to its theory, the plaintiff would be entitled to nothing, and would be under obligation to place matters in statu quo by returning to it the two hundred dollars he had already received.

Surely this can not be a correct interpretation to place upon the defendant’s engagement with the plaintiff, and we decline to do so.

Our opinion concurs with that of our learned brother of the district bench.

But we think his judgment awarded the defendant credit for fifty dollars more than it had paid. Instead of a credit for two hundred and fifty dollars there should be credit given to the defendant of two hundred dollars only.

It is therefore ordered and decreed that the judgment appealed •from be so amended as to reduce the defendant’s credit from two hundred and fifty dollars to two hundred dollars, and that as thus amended the same be affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 11,631.
    W. W. Handlin vs. The H. Weston Lumber Company, Limited.
    Whilst mere civil or legal possession, not preceded by a real, actual possession on the part of the plaintiff or his authors, may be insufficient to support the possessory action, civil possession at the time of the disturbance is sufficient when preceded by an actual possession by plaintiffs or his authors for a year. The intention to possess preserves a civil possession continued after the natural is abandoned, unless usurped by another during the time required by law, or there be no possession for ten years. Against any disturbance in the meantime the civil possession will support a possessory action.
    Where, the owner of a number of squares in the outlying districts of the city of New Orleans intersected by nominal streets has leased all of the squares to a single tenant, who has taken possession thereof and placed them under fence, the fact that the streets might be ultimately utilized for public purposes would not (so long as the public rights are dormant and the servitude is not exercised) break the continuity of the possession over and across the streets so as to take in and include (in conformity to the lease) the body of land leased as an entirety — so far, at least, as a trespasser is concerned. Although proceedings in enforcement of unpaid taxes may be regular and vest a legal title in the purchaser at the tax sale made thereunder, an actual and real possession of the property does not instantly follow as the direct result of the adjudication. The fictitious legal seizin which the law makes the accompaniment of a completed act of sale would flow from such an adjudication, but the adjudication, though it would give rise to “a right to possession,” would not operate of itself an actual and real corporeal possession of the property. The State does not occupy, in this respect, a position different from that of any other adjudieatee.
    Act No. 80 of 1880 provides a statutory remedy for placing adjudicatees at tax 'sales in possession of the property purchased.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

    Plaintiff alleged that the defendant company took wilful, forcible and illegal possession of his square of ground (No. 679) in the city of New Orleans, bounded by Short, Seventeenth, Washington and Dixon streets; that he had been in the undisturbed and peaceful possession, as owner of said property, through tenants and otherwise, for more than thirty years; that the same had been assessed in his name; that it contained twenty lots; that he had placed the property in the hands of Shepard & Hunter for sale at one hundred dollars a lot, and advertised the same, when he discovered that defendant, well knowing plaintiff’s right, had converted said square into a lumber yard, by erecting extensive tramways and wooden constructions, so as to render the delivery of any of said lots through Shepard & Hunter impossible; that he had suffered ñve hundred dollars actual damages, and two thousand dollars exemplary damages, and that defendant was liable to him at the rate of twenty-five dollars per month until the delivery of the property; that he urged as specific grounds of actual damages, the wrongful withholding of the possession of said property, two hundred dollars; the absolute suspension and prevention of plaintiff’s operations for the sale of any of said lots, two hundred and fifty dollars, and the trouble, annoyance and expense of proceedings to regain possession, fifty dollars — he prayed that he have judgment for the delivery of possession of said land and quieting him in bis possession, and that he have, also, judgment against defendant company for damages for twenty-five hundred dollars and for twenty-five dollars per month from the date of judgment until possession should be given him of the square of ground.
    Defendant excepted that plaintiff could not maintain the action in its present form as a possessory action; that it was not true as the plaintiff alleged that he had the real and actual possession of the property described in his petition (in the possession of defendant) as owner for one year prior to the commencement of the action, much less had he had real and actual possession of the same continuously down to the commencement of the suit, but on the contrary the plaintiff not having had the real and actual possession required by law for the maintenance of the possessory action, had mistaken his remedy, which is only a petitory action. The court having referred this exception to the merits, the defendant answered, pleading first the general issue, and specially denying that plaintiff has had the real and actual possession of the property within a year, and that he is entitled to bring a possessory action. It admitted that it was then in possession of the property.
    The District Oourt rendered judgment in favor of the plaintiff against defendant, decreeing that plaintiff be put in possession of the property, and condemning defendant to pay to plaintiff the sum of one hundred and twenty-five dollars damages, and the further sum of twelve dollars per year for the use of said property from March 3, 1894, till final delivery thereof.

      Defendant appealed. Plaintiff has moved for an amendment of the judgment, praying that he be allowed five hundred dollars actual damages and such further damages as this court might think fit, and damages for a frivolous appeal.

      E. N. Whittemore for Plaintiff and Appellee.

      Merrick & Merrick and 11. M. Ansley for Defendants and Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant is shown to have taken possession of the property referred to in plaintiff’s petition about March, 1894, only a month before the institution of this suit. It is not pretended that it took possession under claim of ownership. Whether the property belongs to plaintiff or whether it belonged to Dixon, as it attempted to show, it would in either event be a mere trespasser. Plaintiff shows that in a partition made as far back as 1864, between one Allen and himself, they laid claim to the ownership of nine squares of ground, of which that described in the petition was one, and that in that partition that lot together with others was assigned to him; that in the act of partition their title was set out and referred to as being then of record in the conveyance books of the city of New Orleans. That prior to the partition, the lots had been leased and had been occupied by their tenants, and that after the partition the lots which fell to the plaintiff were leased, fenced in and occupied by his. own tenants; that for many years he had paid taxes upon the property; that he had sold to the defendant itself several of these lots in 1893, and that subsequent to this, negotiations had been in progress between them for the purchase of the property in question in this suit. The defendant maintains that the possession of plaintiff’s tenants, one of whom is still in possession pf part of the property, did not extend over the whole property for the reason that the property consisted of several squares of ground intersected by streets; that the. cabin which plaintiff’s tenant occupied was not upon this particular square, and that actual possession of one square would not give constructive possession of the others. A decision of the Supreme Court of Georgia, in the matter of the Georgia Pine, Investment and Manufacturing Company, reported in 20 Southeastern Reporter, 434, is relied upon as supporting the last mentioned contention. The two squares and two parts of squares of ground set apart to plaintiff in the partition were by him leased as an entire body of land to'one Geox’ge Oammack, for the purpose of keeping off squatters. The land was part of the outlying districts of the city, and the streets mentioned were merely nominal streets. Proof of the existence of a right in the public to certain land for street purposes does not necessarily evidence an absolute divestiture of ownership therein, and the cutting off of a right to possession of the same until the servitude is called into active exercise (Civil Code, Art. 658). As a matter of coui'se possession of the streets could not be held by the plaintiff or his tenant adversely to the rights of the public;, but so long as the rights of the latter were dormant, the fact that the streets might be ultimately utilized for public purposes would not break the continuity of the possession over and across the streets, so as to take in and include (in conformity to the lease) the body of land leased as an entirety to Cammack. Certainly, at least so far as the defendant (who is a mere trespasser) is concexmed, and so far as the question presents itself in this ease, it would not do so.

Article 3437 of the Civil Code declai’es that: “ It is not necessary that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries;” Art. 3498 that “when a person has a title, he is presumed to possess according to the title and to the full extent of its limits,” and Arts. 3442 and 3443 that “ when a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody either himself or by others. This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly, so that although a person may have abandoned the cultivation of his estate he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of preserving it, and shall retain it in fact.” Defendant attacks plaintiff’s claim very vigorously; he says that he only traces‘title to an act of partition between himself and Allen; that any two persons without shadow of right to particular property could partition it. That is very tyue, but this overlooks the fact that the actual ownership of the property is is not an issue in this case. The action is possessory, not petitory. Whilst the act of partition might not suffice in a petitory action to establish plaintiff’s ownership with Allen of the property, it does suffice to show, coupled with the action of their tenants, that they were in possession under claim of ownership, which is a very different matter. The act of partition was admissible for that purpose.

Defendant contends, that at the moment it took possession of the square, plaintiff did not have the actual and real possession of it himself ; that therefore he is driven to a petitory action, as actual and real possession by him, at the instant of the disturbance, was an essential condition precedent, by Art. 49 of the Code of Practice, to a possessory action.

This court has on several occasions held that “the mere civil or legal possession not preceded by a real actual possession on the part of the plaintiff or his authors is insufficient to support the possessory action. But civil possession at the time of the disturbance is sufficient, when preceded by an actual possession by plaintiff or his vendors for one year ” (Davis vs. Dale, 2 An. 205; Dickson vs. Marks, 10 An. 518; Searles vs. Costillo, 12 An. 208), and “ that the intention to possess preserves a civil possession continued after the natural is abandoned unless usurped by another during the time required by law, or there be no possession for ten years. Against any disturbance in the meantime, the civil possession will support a posses-sory action.” Ellis vs. Prevost, 19 La. 251. We think that the plaintiff has brought his case within the principles enunciated in the decisions cited.

Defendant complains that he was not permitted by the court to introduce in evidence an act of sale of this property from W. W. Heard, State Auditor, to one W. A. Dickson, under date of 29th January, 1894, the sale reciting that it was made under Sec. 8 of Act No. 80 of 1888.

In the bill of exceptions reserved by the defendant to the exclusion of the act it is stated that “it was offered for the purpose of showing that if the plaintiff ever had possession of the property in question he had parted with that possession to the State of Louisiana, and, also, for the purpose of showing the payment of the taxes upon said property; that thereupon plaintiff objected to the offer of defendant on the ground that it was an attempt to deny the title of ownership of the plaintiff, and to set up an outstanding title in some one else. Counsel for the defendant then unsuccessfully urged that said testimony was admissible to contradict the evidence of plaintiff to show that he had parted with possession, if he e'ver had possession, and for the purpose of showing the payment of taxes.”

The act in question described the property as “a certain square of ground and improvements thereon, in the First District of the city of New Orleans, designated as square No. 769, bounded by Washington, Venus, Aglae and Short streets,” and recites that said property was adjudicated to the State for unpaid taxes of the years 1882 and 1883, in the name of W. W. Handlin, on November 22, 1884, and recites that under the sale to Dickson of 29th January, 1894, he had paid certain taxes to the State in payment of the price of his purchase.

Defendant’s evident theory was that the State having offered the property for sale for unpaid taxes under an assessment against W. W. Handlin, and having had the same adjudicated to it, the effect of the adjudication was to instantly operate divestiture of Handlin’s ownership, and to place the State in the real, actual and legal possession of the property, and that therefore from that time forward (November, 1884) the State, and not Handlin, had the real and actual possession of the property. That it, the defendant, though a mere trespasser, had the right to show this change of possession, not on the strength of any rights which it had itself, but because of the absence in the plaintiff’s case of the existence of one of the essential facts on which by law his right of instituting a possessory action was dependent.

Granting the right of a defendant trespasser to set up the outstanding possession of a person other than the plaintiff for a period of one year prior to the institution of plaintiff’s action, we do not think the evidence rejected would (had it been introduced) prove the fact which defendant asserted it would have proven.

Assuming for the purposes of the argument that the proceedings in enforcement of Handlin’s unpaid taxes were strictly legal and regular and vested a valid title in the State, it would by no means follow that an actual and real possession of the property by the State would instantly follow as the result of the adjudication. Unquestionably the fictitious legal seizin which the law makes (Oivil Code, 2479) the accompaniment ipso facto of every completed act of sale would flow from such an adjudication, but this is something other than an actual and real possession by the purchaser. Bird vs. Jones, 5 An. 645. The adjudication would give a right to possession,” but would not operate of itself an actual real corporeal possession. The State does not occupy in this respect a position different» from that whieh any other adjudicates at a tax sale would occupy. We have in the course of repeated decisions been called upon to pass upon rights of parties based upon tax adjudications as affected by the fact that no actual change of possession or ouster of the original owner’s possession had followed the adjudication.

The State not having followed up the adjudication by any attempt at taking possession, its vendee Dickson would find himself in no better situation than a direct adjudicatee at a tax sale. He would have to make his right to possession available through the statutory remedy provided for that purpose in Sec. 5 of Act No. 80 of 1888, and his possession, if given, and when given, would have to date not from November, 1884, but from the day it should have been granted to or taken by him. As Dickson himself did not take possession under the act from the State to him, and under the act of adjudication to the State, the introduction in evidence of the act by the State to him would have been of no service for the purpose assigned by him.

We do not think defendant’s position before the court entitles him to consideration. He was well aware of plaintiff’s rights when he took possession of the property, and did so only when dissatisfied with the price whieh plaintiff asked for the property, in the negó - tiations between them for a sale, evidently basing itself upon what it conceived might be the result of Dickson’s purchase from the State. If Dickson has any rights he must make them available himself in a proper manner; neither he through the defendant nor the defendant through him can take anything by defendant’s illegal action. Defendant took possession of the property without any legal right so to do.

We can not increase the judgment of the District Court to the extent prayed for by plaintiff. It is true that the act of the State to Dickson offered by the defendant refers to Handlin as the owner of the property in 1882, 1883 and 1884, but in this suit we are concerned with the legal wrong done to him through a disturbance of his rights of possession, and not of his rights of ownership.

The defendant without any legal justification has driven the plaintiff to litigation in two courts, has occupied his time and his attention, and forced him to the employment of counsel for the vindication of his right of possession. We think the plaintiff entitled to an increase to the judgment to some extent, and that the amount for which the defendant should be held responsible per year for the use of the property from ihe 3d of March, 1894, till final delivery thereof should be thirty-six dollars instead of twelve dollars. Should defendant deem this amount too high it will be within his power to immediately vacate the premises. It is hereby ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount of damages decreed to be paid by the defendant to plaintiff from one hundred and twenty-five dollars to two hundred dollars, and by increasing the amount per year for the use of the property from 3d March, 1894, to final delivery thereof to the plaintiff from twelve dollars per year to thirty-six dollars per year, and that as so amended the judgment appealed from be affirmed.

Rehearing refused.


text:
    No. 11,637.
    Francis Carrau vs. Marie Louise Chapotel.
    Where, by the course of business in a supposed relation of principal and agent, the principal dispenses with any account of the agent, and none was kept, the heir of the principal, asserting a moneyed demand against the alleged agent, can not compel such account, least of all, in view of the fact that there are no books nor data to enable the asserted agent to meet the requirement of an account.
    PPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Benjamin Bice Forman for Plaintiff and Appellant.

      Charles J. Theard and Walter B. Som/menille for Defendant, Ap-pellee.
   The opinion of the court was delivered by

Miller, J.

This suit was before this court on a previous occasion, Carrau vs. Chapotel, 45 An. 850. It now comes up on the plaintiff’s appeal from the judgment dismissing his demand for an account claimed of defendant as agent of Widow Oarrau, and for plaintiff’s portion as her heir, of money alleged to have been received by defendant as such agent.

The defence is that though Widow Oarrau executed a power to defendant that she never acted under it; that defendant assisted in the collection of the rents of Widow Oarrau, and accounted to her for all such rents; kept no account and has none to render; and the answer further avers the plaintiff is concluded with respect to his demand by the settlement of the succession of Widow Oarrau, and by certain acts of transfer and acquittance of all claims between plaintiff and defendant as heirs of the deceased.

Widow Oarrau, the mother of the parties, was an old lady, owning considerable property in this city, the collection of rents of which she attended to herself with occasional assistance of her daughter, the defendant, and she testifies that whenever she received the rents of her mother the amounts were promptly paid over; the daughter further testifies that never considering herself her mother’s agent, but merely aiding her in the collections, she had no books, kept no accounts and can render none, and she denies any liability. A review of the testimony brings us to the conclusion that there was no relation of principal and agent, but simply the offices of assistance of a daughter to an aged mother. In view, too, of the testimony that the daughter kept no account, it seems to us we can render no judgment to compel an account.

Mrs. Oarrau, the mother, died in 1890. The executors filed their account and have been discharged. The plaintiff opposed the account, but averred no debt due deceased by the daughter, and if there was any such debt, it should have been brought on the account. The inventory of Mrs. Oarrau’s estate showed no such debt, and plaintiff was a party to that inventory, concurring in the declaration of no other property than that inventoried. Later, there was an exchange between plaintiff and defendant of property inherited by them and an acquittance from each of claims against the other. The plaintiff contends that the acquittance extended only to the incidents of the exchange of real estate. The lower court gave these acts the effect of a full settlement.

If the relations of principal and' agent ever existed between the. defendant and her mother she never exacted any account, and was ■content with the method in which the daughter performed the duties she was called on to render. It is evident that no such account was kept. We do not think the plaintiff can exact that of the agent which was dispensed with by the" supposed principal, nor that this court can compel an account in view of the testimony that defendant has no books nor data on which to meet such requirement.

The account is merely incidental to the money demand. If the basis for that demand existed, the plaintiff could enforce it without the account. The burden of proof to sustain such a demand is not more onerous than that often resting on plaintiffs, and that burden plaintiff assumed, or should have assumed. The record contains a mass of testimony to show defendant’s collections of the rents -and charge of assets of her mother. But the testimony is met .by that of the daughter, and corroborating testimony of others, that ..she paid over all that she received. The plaintiff does not claim •¡there is any basis for a money judgment, but insists the defendant should be compelled to render the account. We have disposed of the question of the account, and think that after the full opportunity of the plaintiff to support his demand the litigation should be closed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, and that plaintiff pay costs.