text:
    No. 14,282.
    M. D. I,. & J. F. Huddleston vs. Detroit Timber & Lumber Co.
    Syllabus.
    1. Tlii.i court will enleilam no application for the writ of review where it does not appear that a reheaiing of the cause was sought and denied in the Court of Appeals See amendment to Rule 12 of the Rules of the Supreme Court, 52 La Annual Reports.
    IN EE M. D. L. Huddleston et al., applying for certiorari or writ of review to the Court of Appeals, First Circuit, State of Louisiana.

      J. T. Wallace, for Applicant.
   "The opinion of the court was delivered by

Blanchard, J.

In June, 1900, this court adopted the following as an addition to Eule 12 of the Eules of Court, to-wit:

“Hereafter no application for writ of review in any ease will be considered unless it appears from the papers filed that an application for rehearing has been made in the Court of Appeals, considered and overruled.
“When a writ of review, or mandamus, or prohibition, or certiorari, or other remedial writ, has been applied for, considered, and denied by the court, the same shall be final, and no application for rehearing will be entertained.”

And the same was published, with other rules and orders, in the 52nd La. Annual Eeports.

Following the adoption of this amendment to Eule 12, the Court has steadfastly enforced its requirement ■ and declined to entertain applications for the writ of review under Art. 101 of the Constitution of 1898, unless it should appear from the papers filed that rehearing in the cause had been asked of the Court of Appeals and denied by that tribunal.

We are constrained to enforce the rule in the instant case.

It nowhere appears in the papers filed, and constituting the application for the writ of review, that rehearing was applied for and refused.

It is, therefore, ordered that the application be dismissed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,713.
    Succession of Angeline Bell Bienvenu, Widow of George Buyatt.
    Syllabus.
    1. The borrower deposited an amount to pay the price of the lot. The homestead company, with this money, paid for the lot and took a transfer in its name for the account of the borrower. After having purchased the lot, the company placed improvements thereon and sold lot and improvements to the borrower, who, as relates to the lot, only received that for which she had paid. It was not a transaction such as is contemplated by Act 115 of 1888 where the borrower sells property to the homestead company, and afterward it is sold back by it burdened by the terms of the act with vendor’s privilege. The company had a vendor’s privilege and the property burdened with a mortgage in favor of a third person is subject to the claims of this mortgagee.
    2. Under the circumstances, the right of the homestead company is recognized and the lot is to he appraised separately from the improvements thereon and the amount distributed between the mortgage creditor and the homestead company in proportion that the separate appraisement will bear to the whole appraisement.
    3. The clauses and sections of Act 115 of 1888 form part of one object. The Act embraces one object, also its title, and is not unconstitutional on the score that it contains many objects.
    4. The vendor’s privilege claimed not being recognized, the placing the title in the name of the borrower is not subject to successful attack on the ground that the Act 115 of 1888 contains peculiar and special privileges granted to homestead associations in derogation of the Constitution.
    APPEAL from the Civil District Court, Parish of Orleans. — St Paul, J.

      Part & Kernan, for Mutual Loan and Building Company, Creditor, Opponent and Appellant.

      Benjamin Bice Forman, for Walter W. Chandler, Tutor, Opponent and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Both appellant and appellee complain of a judgment rendered by the District Court, ordering that a balance of nineteen hundred and eighty-eight 61-100 dollars to be paid to the opponent represented by his tutor and to the Mutual Loan and Building Company, in proportion to the value of improvements made on the land by the latter, and the naked lots which were bought with money paid over for the purpose by the late mother 'of George Buyatt, minor, who is represented by his tutor as before mentioned.

Mrs. Buyatt, widow, mother of the minor, was indebted to him in the sum of ten thousand dollars. The claim was duly recorded in 1892 and was secured by legal mortgage. In the month of July, 1893, Mrs. Buyatt applied to the Mutual Loan and Building Homestead Company for a loan. She deposited eleven hundred dollars with the company to purchase two lots of ground. With this amount the plaintiff company bought the lots, taking the deed in its name. The company had a house built upon the lots at a cost of twenty-four hundred dollars. The amount of the loan to her by the company was twenty-seven hundred dollars.

From this amount the company deducted a bonus of ten per cent, charged, we are informed, for making the advances and erecting the improvements. This left of the loan the sum of twenty-four hundred and thirty dollars. After the improvements had been made on these lots, the company transferred to her the lots and improvements for the amount of twenty-seven hundred dollars, the amount of her loan, and she executed her note for that amount, secured by vendor’s lien and mortgage.

After the death of Mrs. Buyatt, in course of the settlement of the succession, the administratrix sold the property in question, which was the only property that the deceased had owned. The proceeds of the sale amounted to two thousand seven hundred and twenty-five dollars. The administratrix paid out everything except the balance of nineteen hundred and eighty-eight 61-100 dollars which she has carried upon her account of administration to the credit of the plaintiff company. The tutor of the minor, George Buyatt, Son of Mrs. Buyatt, opposed the account of the administratrix upon a number of grounds, claiming the ten thousand dollars before mentioned and a legal mortgage against her property as dating from January, 1892; he contends that the amount due to the Mutual Loan and Building Company is subordinate to that due the minor, George Buyatt, and that it should be paid to him in preference to any claim of the Mutual Loan and Building Company, as the latter has no mortgage or vendor’s privilege.

He claims that the purchase made by the Mutual Loan and Building Company of the unimproved real estate before mentioned was for her account, in acordance with agreement, and with her money; that the money was deposited with the said Mutual Loan and Building Company to buy this land, the proceeds of which are to be distributed, and that the object in putting the real estate in the name of the Mutual Loan and Building Company was to evade the mortgage recorded in favor of the ward; that the property never was paid for by the Mutual Loan and Building Company and is not its property.

Opponent charges that Act 115 of 1888, the Homestead Act, is contrary to the Constitution of 1898 and the Constitution of 1879 in that this act attempts to grant to homestead associations a special and exclusive right which it does not grant to other corporations and other citizens of the State; that it infringes upon the equal rights of individuals; that it is contrary to Article 31 of the Constitution of 1898, and a similar article in the Constitution of 1879, in that it does not embrace one object, but it embraces two or more objects.

We take up for decision the first question before us in the order of the argument growing out of the contention of opponent that his' mortgage has priority because the purchase of two vacant lots conferred no title upon the company; that the property was in effect transferred to Mrs. Buyatt, and that immediately after the transfer to the company it became subject to the minor’s mortgage.

Mrs. Buyatt paid the price and not the company. This fact is not disputed. The purchase was made in accordance with her direction. The company was a transferee without a price. Such a transfer' as between the owner and the one who holds a paper title can have no vitality as a sale. The company signed its name to the deed really as her agent and representative.

In observing the form of selling the property to her, as relates to the land it held and which had been bought with her money in compliance with agreement, it only placed her in possession of her property. The company, from the date of the deed to it, held the propertv in trust. No third person acquired a right against the land while the title was in the name of the company. We take as settled that a cestui qui trust can compel the trustee to convey the property bought for the former, if third persons have not acquired any rights against the property. There is no question here of any right or interest acquired by third persons against the property. The controversy is exclusively between the heir of Mrs. Buyatt and the company which acted in a representative capacity in buying the property. Our opinion on this point, we think, finds ample support in the following cases: Brigham vs. Newton, 49 Ann. 1539; Hodges vs. Ory, 48 Ann, 54; Ringe vs. Binns, 10 Peters, 269; Michoud vs. Girod, 4 Howard 503; McClendon vs. Bradford, 42 Ann. 160; Hobson vs. Peake, 44th Ann. 383.

The minor’s mortgage was extant upon the record when Mrs. Buyatt received the title from Fredericks and Redersheimer through the intervention or agency of the Homestead Company.

The case to which our attention is invited by counsel for the company does not sustain their contention. Succession of Latchford, 42 Ann. 529. The borrower in the cited case above, transferred her property to the company. In the case in hand, on the contrary, the company placed the title in the name of the real owner, and could not, in view of the facts, acquire title as owner, nor could it retain a mortgage and vendor’s privilege on property it held for another.

■ The improvements placed on the property by the company give rise to the next, question in the order of the argument to be considered and determined.

While the company held the lots in its name, it built improvements thereon under a special agreement with the owner. While it is true that the minor’s mortgage attached to the land, it can scarcely be held that it covered the improvements placed thereon in accordance with an agreement with the owner. If the minor’s mortgage attached to the property, he would be benefited at the expense of another who owed him no duty. He would be benefited to the detriment of the Homestead Company that acted in good- faith in placing the improvements on the lots. We have seen that the parties to the agreement had created a constructive trust under which the Homestead Company held temporarily for the real owner. Improvements (as in our case) placed on the property held in trust with the consent of the owner must be accounted for when the property is delivered to the owner. The accounting here was made by attempting to create a mortgage on the property of Mrs. Buyatt by transferring property and improvements as if all was owned by the company. There was an error committed by both parties to the deed; neither should derive a benefit to the injury of the other. The idea that the company, because of failure to appraise the property prior to 'the sale, under the circumstances of- the case, has lost the amount it expended for improving the lots does not recommend itself as eminently the proper thing. There was no issue raised and nothing to suggest the necessity of a separate appraisement before the sale. Besides, the proposition that a separate appraisement cannot always be required, finds support in the case of Succession of Lenel, 34th Ann., 868.

We only go to the extent of holding that a creditor whose claim is secured by a vendor’s privilege is not compelled to procure a separate appraisement before the sale of a particular immovable by which it is encumbered. Property was sold without a prior separate appraisement in the following cases, and the rights of the parties were considered as though the appraisement had been separately made: Lanusse vs. Lanna, 6 H. S. 103 (114); Andry vs. Guyol, 13 La. 8; Diggs vs. Green, 15 La. 417; Cordeville & Lacroix vs. Hosmer, 16 La. 590; McDonough vs. LeRoy, 1 Rob. 173; Succession of Erard. 6 Bob. 335; Jamison vs. Barelli, 20 A. 452.

It is not necessary for us to go as far in the direction of holding that prior appraisement is necessary as was done in the early decisions to which we have referred. We only cite to the extent that they support our views in the case in hand and no further.

This brings us to the question of the amount due to the Homestead Company. The tutor, as an opponent, claims credit and an interest on accounts paid. Eor instance, Mrs. Buyatt paid one thousand dollars October 24th, 1893. Ho credit was directly given for that amount from that date. Credit was given' by paying instalments to September 25th, 1895. The amount was not credited in a lump sum, but credit was given in monthly instalments, although the instalments had not matured when the payment was made. The debtor, in the deed of sale to her, expressly bound herself to pay monthly nn the note and interest. The company availed itself of the obligation of the borrower to impute sums handed over to the-company’s officer by her to the payment of unmatured instalments. In other words, the borrower is expected to pay at maturity. If a larger amount be paid than is necessary to pay the matured instalments, it is, as ordinarily done, deducted from the loan and interest to date, but it (the surplus) is carried to the credit of unmatured instalments. The borrower must then look to the dividends for interest earnings on his anticipated payments. This rule was followed throughout in dealing with Mrs. Buyatt. We can only say that one is at liberty to accept or decline such terms. Having accepted them, we do not think we should decide that the borrower is released from the payment of a balance due.

This brings us to opponent’s attack for unconstitutionality. An act, he avers, which contains eight objects, some of which are not expressed in its title, is unconstitutional. Opponent assumes that the act Contains as many objects as he states and that they, because of their number, are violative of the Constitution. We think it sufficient to say in general terms in answer to this attack upon the constitutionality of the statute that its different sections and clauses can be made part of one object. To carry out this one object, in aeordanee with the legislative will, it was necessary to delegate certain rights leading to and forming part of one object. There is nothing distinct, from or antagonistic to, the main purpose of the statute covering one object. We have not succeeded in distinguishing this case from the number of cases in which this court has decided that the statute had hut one object which is expressed in its title.

The next ground of attack is that an act which gives special privileges to building or homestead associations (as granting them a vendor’s privilege when one sells his property to them and then they sell it back when it is really no sale, but a loan) which is not given to other persons or corporations loaning money is in derogation of the Constitution.

Having pronounced against the claim made by the company for a privilege on the property of the owner for reasons heretofore stated, we do not conceive it necessary to pass specially upon the question presented. No privilege such as that referred to by opponent is enforced in this case.

For reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.

Rehearing refused.

Nici-iolls, O. J., recused.


author: Blanchard, J.

text:
    Nos. 13,680 and 13,941.
    Thomas Sully and Hayward L. Burton, liquidators, vs. George K. Pratt.
    Syllabus.
    1. The fact that an owner, who had engaged an architect to design a building and prepare plans and specifications, afterwards changes his mind and does not erect the building, and that he has benefited nothing by what the architect did, while entitled to some weight in fixing the amount of compensation to be paid the architect, cannot, in the absence of an agreement to that effect, defeat the architect’s recovery.
    2. An intending builder, by calling upon an architect to prepare plans and speci fieations which he afterwards receives, renders himself liable to pay for them whether they are used or not.
    8. Courts will adopt with caution a rule which binds an owner to pay a percentage on a building such as the architect sees fit to figure out, and at a price which he, or the builders to whom he sends the plans put upon its probable cost.
    4. There is in such a rule too much inducement to architects to make the piano expensive for it to be readily accepted.
    5. An owner, who is not apprised of a schedule of charges obtaining among architects and had no knowledge of the same, is not to be held bound by such schedule.
    APPEAL from the Civil District Court, Parish of Orleans— ElUs, J

      Clegg & Quintero, for Plaintiffs, Appellants and Appellees.

      James McConnel, Jr., for Defendant, Appellee and Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The Sully, Burton & Stone Company, a limited corporation, of which plaintiffs are liquidators, conducted a general architectural and building business.

The defendant ■ owned and controlled certain theatre properties in the City of New Orleans.

Certain theatrical people had a lease on this property which was soon to expire. They were desirous of renewing the lease for a term of years,- provided one of the two theatres was remodeled and repaired and the other was replaced by a new, modern, up-to-date theatre building. Otherwise they would not lease the property.

Negotiations looking to the renewal of the lease of the theatres, the remodelling of one and the rebuilding of the other, were commenced in the Spring of 1897 and extended through the remainder of that year and into the beginning of 1898, when, on the 19th day of January, of the latter year they were abruptly ended by the total rejection on the part of the lessees of a drastic proposition relative to the renewal of the lease and the remodeling and rebuilding of the theatres submitted the day previous by the defendant.

Following this breaking off of the negotiations the defendant, it seems, leased the two theatres to other parties and thus avoided the necessity for large expenditures for repairs and rebuilding.

Undoubtedly, for months pending the negotiations with the former lessees it load been the intention of the defendant to rebuild that one of the theatres called The Academy of Music. That is to say, it was his intention to demolish the old building and erect another and larger and finer one upon its site.

To this end he engaged the services of the plaintiff company as architects to prepare the plans and specifications for the proposed building, which was to be a steel structure.

The plans and specifications were prepared, copies were furnished to certain firms of builders and contractors of large capacity and good repute and bids invited. Three bids were received, showing the cost of the building, as planned for, would be ¿bout one hundred thousand dollars.

Following this, the other copies of the plans and specifications in the hands of other builders, who had not yet submitted bids, were, it seems, returned, it having become known that the theatre would not be constructed.

Defendant, having decided not to erect the building, was presented by the architects with their bill for services rendered amounting to $3,500. This sum was arrived at by calculating 3% per cent, upon what was considered would be the total cost of the structure — $100,000.

Defendant refused to pay it and this suit followed.

The petition alleges that the preparation and execution of the plans required great professional skill and the information acquired only by years of experience; that no price for the work had been agreed on. no contract entered into; and that the services rendered were well worth the charge made.

The answer of defendant admits that certain services and labor were rendered and performed by the plaintiffs for which they are entitled to be paid, but denies that the same are worth exceeding five hundred dollars.

There was judgment in the court below in plaintiffs’ favor for seven hundred dollars, and feeling aggrieved there at they prosecute this appeal. Defendant, subsequently, also took an order of appeal and both appeals are under consideration.

jRuling — There being no question of the employment of plaintiffs to design the building defendant proposed to erect, and to prepare’ the plans and specifications therefor, and plaintiffs having performed this service, the question at issue is narrowed down, in the absence of agreement as to compensation, to the amount plaintiffs are entitled to receive upon a quantum meruit for the professional skill employed and the work done.

It is well to state, however, that there is some conflict between the parties as to the fullness and completeness of the working plans in all necessary details..

As to this, the evidence satisfies us the plans stand the test — the building could have heen erected by competent builders from the plans as furnished defendant by the architects. Indeed, a high degree of professional skill and competency in such work on the part of the plaintiffs is,' we think, shown.

The fact that defendant afterwards changed his mind and did not erect the building, and that he has benefited nothing hy what plaintiffs did, is, doubtless, entitled to some weight in fixing the amount of compensation to be paid the architects, but cannot, of course, in the absence of an agreement to that effect, defeat plaintiffs’ recovery.

An intending builder, by calling upon an architect to prepare plans and specifications which he afterwards receives, renders himself liable to pay for them whether they are used or not. Am. & Eng. Ency. of Law (2nd Ed.), p. 816; Drescoll vs. Independent School District, 61 Iowa, 426; Kutts vs. Pelby, 20 Pick. (Mass.), 65; Chicago vs. Tilley, 103 U. S. 146; Webb vs. Scheval, 3 Phil. (Penn.), 125.

The American Institute of Architects has promulgated a schedule of prices for architectural work and plaintiffs’ charges are based upon the same — one or more members of the firm being members or fellows of the institute. But it is shown that very few architects doing business in the City of New Orleans are, at this time, members of the institute, and it may not be said that any custom prevails there to charge for services according to the scale of the institute.

Defendant had not been apprised of this schedule and had no knowledge of the same. Much less did he assent to it.

The schedule of charges, then, of the institute may be useful in assisting the court to arrive at a proper estimate to be put upon plaintiffs’ services, but can be given no greater weight.

The evidence shows that the custom obtaining among architects generally is to regulate their charges according to a rule of percentages. Thus, for preliminary studies, general drawings, specifications and details, and superintendence, where the building is erected, five per cent, appears to be the usual charge, and a less percentage, according to the work done and skill and time employed, where the building is not constructed, or the architect’s employment does not include superintendence.

But courts will adpot with caution a rule which binds an employer to pay a percentage on a building such as the architect sees fit to figure out, and at a price which he, or the bidders to whom he sends the plans (as in this instance), put upon its probable cost. There is in such a rule too much inducement to architects to make the plan expensive for it to be readily accepted by those called upon to sit in judgment in matters of controversy between owners and architects. Scott vs. Maier, 56 Mich. 554.

Under the facts and circumstances of this case, we think the charge of 3% per cent upon a one hundred thousand dollar valuation for the building which defendant contemplated erecting is unreasonable.

Had the building been erected pursuant to the plans and under the superintendence of plaintiffs, we do not say five per cent, upon its cost would have been too great a charge.

But where the building was not erected, and no benefit to defendant resulted from his employment of the plaintiffs, we incline to the opinion that a greater reduction than is here shown, from the maximum of five per cent, (where the building is erected), should be made.

On the other hand, our reading of this record has led to the conclusion that, if plaintiffs have overestimated the charge they should make, defendant and the trial court have greatly underestimated it.

There is' dispute between the litigants as to the maximum limit with regard to the cost put upon the proposed building by the defendant.

He insists it was $75,000.

The plaintiff Sully and the witness Rowles testify the cost was to be $100,000 and that they got this estimate from the defendant.

Rowles was the manager in New Orleans of the theatrical firm which was negotiating for the lease or renewal of the lease upon the basis of the remodeling of one of the theatres and the reconstruction anew.of the other, and, as such, had conferences with the defendant about the rebuilding of the theatre, and with his architects about the design and plans for the new building. He was called as a witness for plaintiffs. Tie had testified in chief that the estimate of cost talked of was one hundred thousand dollars, and on cross-examination by defendant’s counsel being asked the question:

“You said something about one hundred thousand dollars being the cost of the proposed new building. Where did you get that information from?”
Answer: “From Dr. Pratt.”

So that the preponderance of evidence seems to sustain the contention of plaintiffs that $100,000, and not $75,000, was the cost limit indicated by the defendant in his conferences with the architects and the theatrical people in regard to the new building.

The view most favorable to defendant that could be taken of this is to adopt as the basis of the cost of the building, in the calucatibn to be made to arrive at the compensation to be paid plaintiffs, a sum midway between what defendant fixes as the maximum limit indicated by him and what plaintiffs’ evidence shows it to have been.

This sum is $87,500, and the same accords with the preliminary estimate of the cost of the proposed building obtained prior to the preparation of the plans, upon sketches made and submitted to certain builders and contractors then erecting large structures in New Orleans.

For the professional skill and labor exerted by plaintiffs, the work they did and the plans and specifications furnished, the weight of evidence sustains a charge of 2% per cent, upon the cost of the building as not unreasonable, even in a case like this where the proposition to erect the building finally fell through.

Two and one-half per cent, upon $87,500 is $2,187.50. Of this sum, to be on the safe side, we will allow seventeen hundred and fifty dollars as meeting out justice as near as can be between the parties, according to our appreciation of the case.

It is ordered, adjudged and decreed that the judgment appealed from be amended by increasing the same to the sum of seventeen hundred and fifty dollars, with five per cent, per annum interest thereon from judicial demand until paid, and that defendant pay costs of both courts.

Rehearing refused.


text:
    No. 14,221.
    State of Louisiana vs. Leon Pitre.
    Syllabus.
    1. An exception to the method by which an objection is saved must specify the particular finding objected to and further disclose all that is necessary to make the asseued error evident.
    2. The record should contain a transcript of so much of the testimony as to enable the court to determine whether an error has been committed. This may be done by annexing copy of the evidence to the bill of exceptions.
    3. Besides, the sentence does not fall within the minimum limit of the jurisdiction of this court.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry. — Lewis, J.

      Walter Guión, Attorney General, and B. Lee Garland, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      O. F. Garland, for Defendant, Appellant.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

An indictment was preferred by the Grand Jury of the Parish of St. Landry against the defendant for obstructing a public road. The defendant was tried before the district judge, found guilty, and sentenced to pay a fine of.one hundred dollars and costs or to imprisonment for three months. Prom the conviction and judgment defendant appeals.

Before this court the Attorney General moved to dismiss the appeal on the ground that no fine exceeding three hundred dollars or imprisonment exceeding six months had been imposed, and further, that the constitutionality or legality of a fine was not at issue in the District Court, nor had any ordinance of a municipal corporation or any other law been declared unconstitutional. The contention of the defendant in so far as the pleadings show, presented only in his motion for a new trial, is that the fine in question was imposed for the averred violation of a Police Jury which the defendant charges is unconstitutional, illegal, and null.

The law officers of the State, in seeking to meet this position of the defendant, set forth at some length the terms of the ordinance in question which the defendant attacks on the grounds just mentioned of unconstitutionality and illegality. This ordinance ordained that all roads in the parish should be laid out by a jury of competent freeholders appointed by the Police Jury.

The defendant, in his motion for a new trial, charges that no road was established by a jury of freeholders and that this ordinance was totally disregarded and ignored.

In the second place, again by way of application for a new trial, defendant charges that the Parish of St. Landry never acquired that land which the road in question traverses and that without showing on its part that a public road was regularly opened, he cannot be held guilty of a criminal offense, and, lastly, that the petition addressed to the Police Jury bearing his signature to open a public road at the place it was located cannot estop him from contesting the legality of the Police Jury’s action.

The judge of the District Court refused to grant a new trial. The defendant was then condemned as before stated.

Counsel for the State point to the fact that defendant did not reserve a bill of exceptions to the ruling of the trial judge refusing to grant a new trial. There is no bill of exceptions in the record and none appears to have been reserved.

After the motion for a new trial had been overruled, defendant moved to place documentary evidence in the record. This motion was granted and this evidence was placed of record and is part of the transcript. It consisted of a petition addressed to the Police Jury for a public road signed by the defendant and three other persons, and of copies of other papers showing the action taken by this jury in matter of public roads.

Is the evidence before us in form required is the question which presents itself for our decision? Complaint aloné is not all that is necessary to bring up a question for review on appeal. The defendant is required to urge in time his objection and to reserve his points. In the absence of a bill of exceptions informing the court on appeal of the objections to the findings of the lower court, it is as if no objection had been raised. There was no defect apparent of record. State vs. Campbell, 48 Ann. 781.

Bills of exceptions come from the Common Law which we are not at liberty to change. “Either side may require the trial judge to sign a bill of exceptions stating the point wherein he is supposed to err. The bill of exceptions is in the nature of an appeal examinable not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court upon a writ of error after the judgment given in the court below.” Cooley’s Blackstone, Book III, p. 371. The exception is, in general, as indispensable as the appeal itself, or the objection by which it is preceded and which it is intended by recital "in the bill to render evident on appeal.

It may be contended on the part of the defendant that in order to entitle one to a review of error it is only necessary to call the court’s attention to the error in the motion for a new trial by pleading the error as ground for a new trial. In addition the bill of exceptions must show that the asserted error was seasonably pointed out to the court. The' evidence not being before us upon which the defendant based his motion for a new trial, we, under the rule established by repeated decisions, ar,e constrained to let the sentence remain undisturbed.

A very similar question was considered some time since and decided adversely to the contention now urged by the defendant, citing a number of decisions. State vs. Hagan, 45 Ann. 840.

We do not consider that the order of the learned district judge to let the evidence be filed, as before stated, is to be considered in the light of a substitute to. or equivalent of, a bill of exceptions.

Although we might have stopped at this point of the case, we extended our examination further and became convinced that this court is without jurisdiction. There was no fine, forfeiture, or penalty, imposed by a municipal corporation, and no ordinance of a municipal corporation has been declared unconstitutional. Art. 88 of the Constitution. No fine exceeding three hundred dollars and no imprisonment exceeding six months has been imposed and'no question raised which comes within the appellate jurisdiction of this court.

We think that the reasons given in dismissing an appeal recently are determinative of the issues in the appeal here. State vs. Dunn, 105 La. 355.

For these reasons the appeal taken in this case is dismissed.


author: Monroe, J.

text:
    No. 13,932.
    Houston River Canal Company, Limited, vs. Kopke, Robicheaux & Nichols.
    Syllabus.
    1. Where persons hold themselves ont, and allow themselves to be held out, as partners, to the public at large and to particular individuals, who, accordingly, deal with them in the belief that they are partners, they should be held liable as partners for all the purposes of such dealings.
    2. The obligation of the clerks of the District Court, to issue subpoenas for witnesses upon the demands of the defendants in civil actions, is not ■ affected by Article 472 of the Code of Practice. The matter is controlled by Act No. 203, of 1898, under which the clerks must look to the plaintiffs in such actions for their costs, and must issue such subpoenas as the defendants may require without exacting payment or security.
    3. An irrigation company may be put in default, with respect to the water which it has contracted to furnish, by a verbal demand made by one member of a planting partnership in the presence of two other members; or, by a written demand, left at the camp of its “water boss,” in the hands of a responsible person, during the absence of such boss.
    4. Such company, in order to recover rental for water claimed to have been furnished under contract, must prove the contract, and the service in accordance therewith, and, where it is claimed that there was a partial performance, accepted by the lessees, any pro tanto recovery must be proportioned to definitely established benefits derived therefrom by the lessee, after deducting damages resulting from failure to perform in- full. If the benefit cannot be clearly so established there can be no recovery.
    APPEAL from tbe Fifteenth Judicial District, Parish of Calcasieu. — Miller, J.

      J. W. Bryan and Daniel B. Gorham (HoTbert & Barret, of Counsel), for Plaintiff, Appellant.

      Cline & Cline, for Defendants, Appellees.
   Statement op the Case.

The opinion of the court was delivered by

Monroe, J.

The petition filed in this case alleges, in substance, that the plaintiff, through its duly authorized general manager, Samuel A. Robertson, entered into a verbal contract with the firm of “Kopke, Robicheaux & Nichols,” composed of L. J*. Kopke, M. Robicheaux and Nichols, whereby the latter agreed to plant in rice, during the year 1900, certain tracts of land in the Parish of Calcasieu, and whereby the petitioner agreed to furnish the water necessary for the irrigation of such rice, and that, in consideration thereof, the parties named obligated themselves to deliver to petitioner, as soon as threshed, two sacks of rice, of average quality, per acre of all the rice lands contained in said tracts; that the water was supplied as agreed on, and that said parties defendant were thereby enabled to make a crop of rice on said land “of which fully 400 acres has been threshed and the balance is being threshed * * * and that said defendants refuse to deliver the rental due thereon.” That petitioner has a lien and privilege on the entire crop to secure the payment of said two sacks per acre, and fears that defendants are about to remove it beyond the jurisdiction of the court, and that a writ of sequestration is necessary, etc.

The petition thereupon prays for the sequestration of 1,200 sacks of rice produced on the lands referred to and in the possession of the defendants, and for citation of L. J. Kopke, M. Robicheaux, — . Nichols, and of the firm of “Kopke, Robicheaux & Nichols,” and for judgment against said firm, and the members thereof in solido, for twelve hundred sacks of rice, of average quality, raised on said land, with lien and privilege on the entire crop; or, in case defendants should not be able to deliver said rice, for $3,600, with interest. The writ issued as prayed for and 1,200 sacks of rice were seized, and were eventually bonded by the plaintiffs. Citations, addressed to the defendants, individually, were served on .them, in person, and a citation addressed to “Kopke, Robicheaux & Nichols” was served on Robicheaux, as manager of said firm, and notices of seizure were served in the same way. Thereafter, the defendants excepted, that there is no such firm as “Kopke, Robicheaux & Nichols.” They admit that the firm of “Kopke & Nicholas” planted rice,. during the year 1900, upon the lands described in the petition, but they deny that any member of said firm is named Robicheaux, and said appearers also moved that the assignment, by the sheriff, of the bond, given by the plaintiff, for the release of the property seized, to “Kopke, Robicheaux & Nichols,” be amended, accordingly. Some evidence appears to have -been taken in support of the exception and motion, thus filed, and they were sustained; and a delay was allowed for the amendment of the petition, of which, however, the plaintiff declined to avail itself. “Kopke & Nicholas” then excepted that the said firm was the real party in interest and had not been cited, which exception being overruled, they answered, substantially, as follows, to-wit: “That said firm is an ordinary partnership, composed of L. J. Kopke and E. Nicholas, who are the real parties in interest as defendants to this suit. They admit that they entered into a contract with the plaintiff whereby the latter agreed to furnish an ample supply of water for the irrigation of their rice crop, and they agreed, in consideration thereof, to give, in payment, two sacks of average grade, rough, rice, for each acre of 'land irrigated, and they allége that they fulfilled their obligations under said contract, by planting 60.0 acres of land, but that the plaintiffs furnished no water for the irrigation thereof, and was placed in default with respect thereto by notice and warnings and frequent demands. They further allege that, had the plaintiff complied with its obligations in the premises, they would have made at least fifteen barrels of rice to the acre, worth $3.50 per barrel, or a total of $31,500, from which, deducting, $4,200, for water rental, and $4,500 for harvesting, marketing, etc., they would have derived a net profit of $22,800. They further allege that they expended $6,000 in making a crop, of about 1,800 barrels, worth $3.00 per barrel, and that they are entitled to recover, in reconvention, said $22,800, phis said $6,000, after deducting the value of the crop actually made.

They further allege that the writ of sequestration was wrongfully issued, because they owe the plaintiff nothing and plaintiff had no privilege on their rice, and for the additional reason that the writ issued against “Kopke, Robieheaux & Nichols,” whereas the rice belongs to appearers; and that they have been injured thereby, in loss of credit and time and in expense, to the extent of $1,000, and in attorneys fees to the amount of $300, and they pray for judgment, rejecting plaintiff’s demand and awarding them damages in the sum of $17,400.

Before entering upon the trial of the case, a question arose between the defendants and the clerk of the courtj the clerk refusing to issue subpoenas for more than six witnesses unless the defendants furnished security for the costs, and the defendants ruling him into court to compel him to do so. The clerk answered, basing his refusal on C. P. 472, and the rule against him was discharged.

Upon' the trial, on the merits, a large number of witnesses were examined, and, from the mass of testimony adduced, we find the following facts, to-wit:

The defendants held themselves out to Robertson during the negotiations which preceded their contract and throughout their dealings, until the filing of the exception in this suit, as partners, and they were so held out, and so believed to be in the neighborhood in which they planted. Upon the other hand they claim, and so testify, that Kopke, who remained in Texas, where they had planted in 1899, was to furnish the money for their operations in Louisiana and one-half of the stock; that Nicholas was to furnish his,, services on the farm and the other half of the stock, and that Robicheaux was to furnish his services, as manager on the farm, and that the net profits were to be divided in the proportions of one-fourth to each, Robicheaux and Nicholas, and one-half to Kopke, in addition to which, Robicheaux was to receive $15.00 per month. In the negotiations between the defendants and Robertson, and in the making of the contract, for land and water, the former were ignorant of the latter’s relations to the defendant company, and dealt with him in the belief that he was acting for himself, or, possibly, for some firm, of the composition of which they were not informed. The eyidence does not show exactly how much land was leased, but the pleadings concede that the defendants’ liability for water rent, upon the basis of two sacks of rice to the acre, irrigated, is limited to six hundred acres, and it is shown that, of 2,005 sacks made by them, they gave to Hunter Brothers, stockholders in the plaintiff company, for the rent of the land, one-sixth, or 331 sacks. Prior to the making of the contract, some discussion had taken place, between the defendants and Robertson, as to whether the defendants should buy land, or rent it, and as to the water supply, and, upon November 11, 1899, a letter was written by the authority of Robertson, and received by Kopke in due course of mail, from which we make the following excerpt, to-wit:

“Dear Sir. — Our Mr. Robertson has just returned and we hasten to answer your letter of October 27th. Will say that we have secured 1,700 acres of the marsh land that you were looking for, and are willing to sign water contract for the land. Will also say that you need have no fear regarding the completion of the canal, as we will put force enough on to finish the same in time, and as for labor * * * if you wish to buy, you will have no trouble.
*******
There will be no trouble in your renting 1,000 acres adjacent to the gulley if you do not care to buy,” etc.

The defendants decided to rent, and not to buy, and the land rented, and planted, by them is situated in Sections 26 and 36 T. 9 S. E. 4 W., and S. 31, T. 9 S. E. 10, W. and S. 1, T. 10, S. E. 11 W., and lies in the gulley, referred to in the foregoing excerpts, which may be called the valley of the Choupique, and on both sides of the bayou of that name. The principal pumping station of the plaintiff company, from which the water supply was expected to be furnished, is located upon the Houston river in the S. E. % of Sec. 11 T. 9 S. E. 10 W., being three miles to the north, and four miles and a half to the east, of the defendants’ farm, and the water was to be supplied to the defendants by means of what are called “laterals,” or small canals, running out from the main canal, which, latter, was to be constructed on a line running westward from the pumping station and lying about two and a half miles to the north of defendants’ holdings. Late in the spring ol the year, 1900, however, when the defendants’ rice was beginning to peed water, Eobertson, who was engineer, as well as contractor, for the construction of the canals referred to, discovered that S. 17, T. 9 S. E. 10 W., through which the main canal was to pass, and which lies some three miles west of the pumping station, was so flooded with water, from excessive rains, as to render the construction of said canal impossible, it being necessary, in that territory, to build it on the surface of the ground by erecting twin levees or embankments, and it being impossible, at that time (as he states, meaning, no doubt, within the limits of what was considered reasonable, or profitable, expenditure), to obtain the earth for that purpose. He, therefore, concluded to make an effort to supply the water required by the defendants from another direction. To the northwestward of, and, perhaps, two miles distant from, the lands occupied by the defendants, beginning with the east line of S. 21, T. 9 S. E. 11 W., and extending still further in the direction mentioned, he had constructed a series of levees, with the view, originally, of forming, reservoirs, whereby to hold back the drainage from the extensive water sheds behind them and thus save ihe crops of the farmers, below, having relations with the company, from being destroyed by floods. And he attempted to utilize the water, held in the reservoirs thus established, for the irrigation which he found himself unable to accomplish by means of the canal, which was to have been built from the pumping station, and from the “laterals,” which were to have been connected therewith. He was, however, as we concluded, from the evidence, taken at a disadvantage by the necessity of making use, suddenly, as, a source of water supply, of reservoirs which had not been established for that purpose, and, whether from lack of scientific information as to the topography of the country to be irrigated, considered with reference to the supply of water coming from an unexpected direction, or from other causes, the means adopted for such irrigation, proved, so far as these defendants are concerned, to be inadequate, although they were sufficient for some other farmers. On the map, prepared by Mr. Robertson, and filed in evidence on behalf of the plaintiff, he has not thought proper to distinguish between the completed canals and laterals, and those which are, or were, at the time of which we are writing, merely projected. The map,- therefore, regarded as evidence, tends rather to confuse than to enlighten. Considering it, however, in connection with, a sketch offered in behalf of the defendants, and with the oral testimony, we conclude that a lateral, partially constructed by the plaintiff, on the line between the S. E. % of Sec. 26 and the S. W. % of Sec. 25, but not completed, or connected with anything at either end, received some water, which was, practically, exhausted in supplying a Mr. Fell, whose farm was on Section 25, and who cut openings in the east levee of said lateral, under the instructions of Lewis, the plaintiff’s “water boss.” Robertson, in referring to this lateral, in his testimony, says: “The lateral between Sections 25 and 26 was not used for any purpose this year. It .was merely an uncompleted mass of earth.” Nevertheless, the defendants, themselves, at the suggestion, or with the concurrence, of Lewis, attempted to obtain water by building a conduit, of twin levees, from the reservoir, to connect with “the mass of earth,” thus referred to, and the attempt seems to have been frustrated and abandoned on account of the permission, given by Lewis to Fell, to cut the lateral. Roberston claims to have made provision to supply the defendants with water by means of what is called the “Robicheaux ditch;” which was extended from the reservoir, on Section 21, in a southerly direction, to a point, perhaps, a quarter of a mile to the westward of the westward limit of the S. E. % of Sec. 26, where it is said to have terminated in what is spoken of as a “swale,” or natural drain, continuing in the same direction. But the terminus was between a half mile and a mile from the nearest- point of land cultivated by the defendants, and the W. % of the S. W. % of Section 26 was lower than any of the land so-cultivated, so that, the water, getting into it through the swale, could get out, by gravity, only over land which was lower still, or, else, by being pumped, or otherwise lifted. As a matter of fact, whilst some of it may have reached the defendants’ fields, or might have been made available to them, we are. unable to say how much, and are entirely satisfied that, upon the whole, the supply was inadequate.

Another source of supply, which the plaintiff claims to have afforded to the defendants, was by means of what is called the “Wilburn ditch,” thro; igh Sections 22, 23, 24, to the Bayou Ohoupique. And the defendants did attempt to avail themselves of the water in the bayou, as they might have done, if the Wilburn ditch had not existed. But, in order properly, to irrigate some of their fields, by means of a dam across the bayou, it would have been necessary to submerge these next to the bayou to a depth of four feet. Besides which, as the bayou is the natuial drain for a vast extent of territory, it is conceded that the dam would have to be removed, or a “spill-way” opened, after every rain. Early in June, the three defendants called upon the plaintiff’s “water boss,” whom they found sick in bed, and asked for water, which they informed him that their rice needed. They were told that he could not furnish it. They then asked him to lend them, or let them have, a gasoline pump, which appeared to be under his control, and he told them that they could have it, or the use of it, if they would haul it, from where it then was to the place at which they desired to erect it, and the defendants hauled the pump, built the foundations for it, and put it up, and it was operated for the benefit of some of their fields, which were entirely inaccessible to any water which plaintiff claims to have furnished, for forty-five days, at the end of which time it was taken away by plaintiff’s general manager, who testifies that he needed it elsewhere. The oil used in running the pump was furnished, and the engineer was paid by the plaintiff, or by Robertson, but whether those expenses were charged to the defendants, as other supplies furnished to them were charged, or whether they were considered as having been disbursed in the discharge of the company’s obligation to irrigate the defendants’ lands, we are unable to say from the evidence.

For, are we able to determine how much of the land was thus irrigated, or in what proportion the water thus supplied, as compared with that obtained from other sources, contributed to the making, or saving, of the crop raised on such land. The pump appears to have been grudgingly furnished, late in the season, and to have been taken away, early, at the convenience of the plaintiff’s general manager. It also appears that the defendants attempted to prove that they made a demand for water by means of a written communication, addressed to plaintiff’s “water boss,” and delivered at his camp, in the hands of a person who was acting as his clerk, the “water boss” being absent at the time, and that the evidence was excluded. Our conclusion as to the plaintiff's attempts to comply with its obligations, in the matter of irrigating the defendants’ farm, may be considered, fairly, expressed by the witness Philbrick, the only disinterested civil engineer who was examined, and the only individual who, by “running levels,” had sufficiently informed himself of the topography of the land to be irrigated to be able to testify with anything like scientific accuracy. He states that he has been a civil engineer for thirty years, and that he occupies the position of chief engineer of several railroad and land companies, and that, in November, 1900, he visited the farm of the defendants and ran levels to determine the relative heights of the lands in different places, and measured some of the areas which had been cultivated in rice. He was repeatedly interrogated as to the practicability of irrigating the defendants’ farm by means of the facilities and appliances which he found there (and which included all that the plaintiff claims to have provided), and his testimony upon the subject may be summed up in the following question and answer, to-wit: “Q. Would it be possible, with the appliances you found, to irrigate that farm, from any point to the northward? A. It wouldn’t be possible to irrigate it at any point with the appliances that I found.” Upon the other hand, the evidence shows that the defendants were very much cramped in their operations for lack of means, and the conviction is forced upon us that the result of those operations were seriously affected by that circumstance. It also appears that the crop was much injured by what is now known as the “Galveston” storm. In fact, Robieheaux stated to one or two persons that it had been damaged to the extent of 40 per cent. Considering all the testimony, together, we are satisfied that, as it was impossible for the plaintiff to show the extent to which the defendants were benefited by the inadequate supply of water furnished to them, so, it was, and is, impossible for the defendants to establish, with anything like reasonable certainty, the proportion of their loss which should be attributed to the fact that the supply of water furnished by the plaintiff was inadequate. The trial resulted in a judgment for defendants, rejecting plaintiff’s demand and condemning it to pay $250, as attorney’s fees, incurred by defendants in obtaining the dissolution of the writ of sequestration. And both parties have appealed.

Opinion.

Certain matters, interlocutory in their nature, and others which were so dealt with, lose their practical significance, in view of the conclusion reached upon the merits of this case, and will be passed on, not as affecting the general result, but because they are fairly presented, the action of the court is invoked with reference to them, and such action may serve as a guide in other litigation. If the plaintiff has no claim against either Kopke, Eobicheaux, or Nicholas, whether as members of a firm composed of all three of them, or of only two of them, or against either of such firms, it can be a matter of no concern to it how such firms, or either of them, are composed. If the defendants obtain a judgment carrying all costs, it becomes a matter of no practical importance to them whether the clerk required them to advance costs for the summoning of their witnesses, in a case in which the plaintiff is able to respond to such judgment. If the evidence as to the cause of the damage, claimed by the defendants makes it clear that there can be no recovery as against the plaintiff, on that account, it becomes a matter of no consequence that other evidence, as to the extent of that damage, was' excluded. For the reasons stated, however, the action of the trial judge in the matters referred to will be reviewed.

1. We are of opinion that the judge a quo erred in holding that the plaintiff was not entitled to prosecute its suit against the defendants as members of the firm of Kopke, Eobicheaux & Nicholas. It is true that a mere agreement to share the profits is not conclusive as to the question of partnership, but we are inclined to think that the evidence justifies the conclusion that Eobicheaux was to share profits, not as an employee, but as a principal, in which case, he should be held as a principal. But, conceding that, as between themselves, only two of the defendants were partners, it is shown that they held out, not only to the public, but to the plaintiff, that they were all interested, as principals and partners, and we think that, for the purposes of this suit, they should have been so held by the court, whether, as between themselves, they are partners or not.

2. We are of opinion that our learned brother of the District Court erred in discharging the rule, taken by defendants, plaintiffs in reconvention, on the clerk, to compel that officer to issue subpoenas for their witnesses, in excess of six. The question is not controlled by O. P. 472, which relates, only, to the mileage and per diem of the witnesses, but by Act No. 203, of 1898, Section 5, of which authorizes the clerks of the District Courts, throughout the State, to demand security from the plaintiffs in civil actions, and to obtain executions against them and their sureties for all costs incurred in such actions.

3. The evidence, we think, establishes, conclusively, that W. R. Lewis was the authorized agent and representative of the plaintiff in the matter of supplying water for irrigation, hence, the plaintiff should have been held bound by a demand for water, made upon him, by the defendants, under their contract, and for the purpose of putting the plaintiff in default; and such demand could, projperly, have been made by means of a written communication, delivered to such agent, in person, or left at the place of business occupied by him in his representative capacity in the hands of a responsible person, or, else, it could have been made, and the evidence shows that it was made, verbally, in the presence of two witnesses, our opinion being, that, in such case, where a demand is made on behalf of a firm, by one of its members, in the presence of two other members, the latter are competent witnesses, as they are, under the law, as it now exists, with respect to any other matter in which their firm may be -interested. The defendants should, therefore, have been permitted to prove the demand made by letter, and, upon the basis of the verbal demand shown to have been made, in the presence of the three defendants, should have been permitted to offer evidence as to the extent as well as the cause of the loss of which they complain.

Upon the merits of the case, it is clear that the plaintiff, in order to recover, is bound to show that the defendants entered into the contract sued on, and that it, the plaintiff, rendered the services under that contract for which it demands compensation. The evidence in regard to the contract, itself, is general in its terms, but, probably, not more so than was the understanding of the parties. The plaintiff was to supply water for the irrigation of the rice which the defendants were to plant and cultivate, and the defendants were to give in payment therefor two sacks of rough rice, of average quality, for each acre of land so irrigated. Something is said, here and there, as to the defendants’ obligation to cultivate 1.000 acres, but there is no demand in the pleadings, or elsewhere, predicated upon such, supposed, obligation, and we take it as conceded that the 600 acres, with respect to which the claim is made, and which the defendants admit having had in cultivation, is all that the contract called for. The evidence shows that it was understood, at the time of the making of the contract, and afterwards, that the water was to be supplied by means of main, and lateral, canals, extending from the plaintiff’s pumping station, on the Houston river, to the defendants’ farm, but it is not seriously denied that the plaintiff could have fulfilled its obligation by delivering water from some other source, and by some other means, provided the delivery was made in accordance with such contract. The mere fact, therefore, that the water was obtained from the reservoir, and not from the river, would have afforded the defendants no just cause for complaint.

The question of the place of delivery was one which was entirely within the control of the parties, but, in the absence of any convention, or particular agreement, it seems to us that the obligation rested upon the plaintiff to make the delivery at such a point, within, or upon the borders of, the land to be irrigated, as to enable the defendant to utilize it with the greatest facility, and at the least expense. In most cases, this object would, probably, be accomplished by delivering the water at the highest point on the borders of the lessee’s farm, but there might be particular instances in which this would not be so. And it seems reasonably certain that in no case could the lessor comply with his obligation to furnish the water required for the purpose of irrigation by delivering such water at the lowest point on the land of the lessee, thus subjecting the latter to the expense of lifting, or “pushing,” it to his more elevated fields. The delivery of water through the “Wilburn” ditch, with the effect, so far as the defendants are concerned, merely, of swelling Bayou Ohoupique, which flowed through the lowest part of their farm, and; by reason of frequent rains, would, in any event have been filled with water, was not, therefore, a delivery under the plaintiff’s contract. As to the lateral, between the Sections 25 and 26, the plaintiff’s “water boss,” evidently, led, or encouraged, the defendants to believe that it might be utilized for their advantage, and they went to the trouble and expense of constructing a waterway (consisting of twin levees), partly upon land other than that occupied by them, in order to connect it with the plaintiff’s reservoir, but abandoned the idea upon finding that they had no way of preventing their neighbor, to the north, from drawing the water off through cuts, which the “water boss” authorized him to make in the lateral. Eobertson, the engineer and general manager of the plaintiff company, differing, altogether, from the “water boss,” admits that the lateral in question was of no practical value, and characterizes it merely as a “mass of earth.” In any case, however, the fact that the defendants were willing to undertake the construction of a waterway over the land beyond the boundaries of their own farm indicates very strongly that they needed water which they were not obtaining through the appliance provided by the plaintiff.

The “Robicheaux” ditch did not accomplish the purpose for which it was intended, and Philbrick, who, alone, ran levels upon the land, testifies that it could not have done so, whilst Robertson, who caused the ditch to be made only to the entrance of what is called a “swale,” at a point between a half and three quarters of a mile from the defendants’ nearest rice fields, had run no levels and derived his impression that the water would pass through the swale to or over the defendants’ farm only from the fact that he had seen water running in that direction. The evidence shows that there were occasions when the whole country was flooded, either from excessive rains or from the breaking of plaintiff’s reservoir, and it may be that such was the condition when he made his observation. However that may be, we have found as a fact that the “Robicheaux” ditch wás not an appliance by means of which the defendants could have irrigated their rice crop, though it is not unlikely that it supplied some water to some of their fields.

The gasoline pump was used for pumping water from Bayou Chou-pique. It was loaned to the defendants by Lewis, the “water boss,” but Robertson, as soon as he heard of it, objected, and subsequently, at his convenience, and not at the convenience of the defendants, took the pump away, because he wanted it for some other purpose. That the defendants derived some benefit from its use, there can be no doubt, but the fact that the plaintiff furnished the fuel and paid the engineer during the forty-five days that the pump was operated was certainly not a fulfillment of its contract as a whole, nor was it such a partial fulfillment as to entitle the plaintiff to a pro tarn to recovery. The particular fields affected needed water before the pump was obtained, and needed it after the pump was taken away, and it is impossible from the testimony in the record to measure the effect of the water furnished by the pump, and we find it also impossible to determine the acreage reached by such water. Moreover, the circumstances connected with the obtention of the pump by the defendants themselves and its enforced surrender leave it a matter of doubt whether the pump was not merely loaned or hired and the fuel and services of the engineer furnished, as other things were furnished, by Eobertson, or the company, entirely apart from the water contract. It may be that the plaintiff has a claim against the defendants on that account, but it is not involved in this suit.

We, therefore, conclude that the plaintiff is not entitled to recover, and that the writ of sequestration was properly dissolved and the suit properly dismissed. We are also of opinion that the judge a quo has done justice between the parties in the matter of the damages claimed by the defendants in their reconventional demand.

The judgment appealed from is therefore affirmed, the costs of the appeal to be borne by the parties in equal proportions.

Eehearing refused.