text:
    No. 3393
    Second Circuit
    RODEN v. ALDY
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    Poster R. Taylor, of Arcadia, attorney for plaintiff, appellee.
    H. 'W. Ayres, of Jonesboro, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, P. M. Roden, sued defendant, Joe Aldy, to recover judgment for' one hundred fifty dollars, alleged to have been due for a broker’s commission on the sale of certain real estate, and defendant appeals from a judgment rendered against him for one hundred dollars, with interest and costs.

Plaintiff moves to dismiss the appeal on the ground that this Court.. is without jurisdiction, as the record shows that after the cause had been tried and submitted to the Court, and a decree rendered in favor of plaintiff for one hundred dollars, that pending the drafting and signing of the judgment, plaintiff filed a remittitur, reducing the amount of his claim to one hundred dollars.

ON MOTION TO DISMISS

. It is conceded that the remittitur could not have rendered the cause unappealable if it had heen filed subsequent to the 'signing of the judgment (Wolf vs. Munzenheimer, 14 La. Ann. 114; LeBlanc vs. Pittman, 16 La. Ann. 430; State ex rel. Judge, 21 La. Ann. 728), but it is contended that the remittitur having been filed before the judgment was signed, the actual amount in controversy before the Court was only one hundred dollars, and thus below the jurisdiction of this Court.

Concededly, the cause involved an amount within the jurisdiction of this Court, at the time it was submitted to the Court, and at the time the decree was rendered, and we do not think that the plaintiff could, after the rendition of the decree, have changed the situation by entering a remittitur after that time without the consent of the defendant (Trenchard vs. N. O. Ry. & Light Co., 123 La. 36, 48 So. 575), and the appeal is therefore sustained.

ON THE MERITS

The pleadings are somewhat vague as to the exact agreement under which plaintiff claims to have been entitled to the commission claimed. Considered, however, in connection with the testimony of the parties, it appears that the plaintiff, with the consent of the defendant, undertook to find a purchaser for real estate belonging to the defendant at a price above twenty-five hundred dollars, with the understanding that he would receive as his commission all above twenty-five hundred dollars at which the property should be sold.

Concededly, plaintiff did not find a purchaser who was willing to pay more than twenty-five hundred dollars for the property, but he contends that as the defendant had sold the property to one with whom he had negotiated for twenty-five hundred dollars and was given the right to remove the improvements, that defendant should pay the commission.

The evidence establishes that plaintiff was not'given any fixed time within which to find a purchaser for the property, and that after he had tried for a considerable period of time to find a purchaser for the property at a price above twenty-five hundred dollars, defendant informed him that he would revoke the mandate and sell the property himself, which was not objected to by plaintiff, further than that he insisted defendant should not sell to anyone with whom plaintiff had negotiated, which was not acceded to by defendant.

There is not any indication that the mandate was revoked by defendant for the purpose of dealing with persons with whom plaintiff had negotiated on more favorable terms to defendant, nor is it shown that the person to whom the property was sold was willing to pay more than twenty-five hundred dollars for the property, but it is established to the contrary, and that the improvements on the property were regarded by him as worthless, and that it was to his advantage to have them removed without cost.

Defendant, after giving the plaintiff a reasonable time in which to find a purchaser for the property at a price above twenty-five hundred dollars, and plaintiff failing to produce a purchaser at such price, had the right to revoke the mandate without any restrictions as to whom or at what price he should thereafter sell the property (C. C., Art. 3029), and it not appearing that the revocation was collusive, plaintiff did not have any cause of complaint, and although the efforts of plaintiff may have been of benefit to defendant, having failed to produce a purchaser at a price above twenty-five hun■dred dollars, he could not claims any commission under the contract.

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered that the plaintiff’s demands be rejected at his cost.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 352
    First Circuit
    W. W. DUSON, INC., v. HUNSICKER ET AL.
    (December 4, 1928. Opinion and Decree.)
    (January 9, 1929. Rehearing Refused.)
    Gilbert L. Dupre, of Opelousas, and O. E. Guillory, of Ville Platte, attorneys for plaintiff, appellant.
    R. Lee Garland, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

W. W. Duson, Inc., claims to be the owner of 157.52 acres of land situated in the Parish of Evangeline, being Lot No. 3 of Sec. 50, and Lots Nos. 1, 2, 3 and the SW1% of the NW% of Sec. 52 all in Township 3 S. R. 1 E., of the South Western Land District of Louisiana. It sets out its title by mesne and intervening conveyances to Alphonse Levy, and a patent issued to said Levy for said land by the State of Louisiana dated October 27, 1891.

It alleges upon information and belief that through inadvertence and error on the part of the land office officials, another patent was issued in favor of Henry Hunsieker, calling for the same land, dated August 17, 1906.

That Cleophas Guillory, Joseph Armile Guillory, Pierre Guillory, J. B. Jean, Mrs. Amelie Deshontels, Arnold Deshontels, Avernent Brunot and Armond Morein each claim the ownership of a part of said land under titles deraigned from said Hunsicker, and based on said patent issued to him. That the State having parted with all its rights and' titles to said land by virtue of said patent issued to Alphonse Levy, the patent subsequently issued to said Hun-sicker was an absolute nullity, and that the titles of the said defendants, based thereon, are also null and void.

That the property is wild swam® woodland. That neither party is in actual possession. That plaintiff is entitled to have its title to said tract of land cleared as to said adverse titles. It brought suit for that purpose under Act 38 of 1908, and prays for recognition as the owner of said land under its said titles, and that the opposing titles be cancelled.

Henry Hunsieker, named in the petition as a party defendant, did not appear, and as no default was entered against him, he is not before this Court. The other defendants appeared and answered. They deny Dlaintiff’s alleged ownership and set up ownership and possession in themselves under their titles deraigned from Henry Hunsieker and the patent issued to him. They allege that the patent issued to said Hunsicker under which they claim, is valid, and that the one issued to said Levy is null and void. They urge as ground for its nullity that no entry was made of same in the entry book of the land office.

Plaintiff’s averment that the land is wild swamp woodland is not denied, but the defendants each set up actual possession under just titles duly recorded in good faith more than ten years, and plead in aid of their title the prescription of ten years by which immovable property is acquired under Civil Code Articles 3478 et seq.

The District Judge without considering the opposing patents, sustained defendants’ plea of ¡prescription and rejected plaintiff’s demand on that account. The plaintiff has appealed.

The appeal brings before us only the ruling of the Court on the question of prescription.

The pleadings and the evidence show that the land in question is low swamp land subject to overflow, and not susceptible of cultivation or permanent habitation. That the defendants obtained title from Henry Hunsicker, December 31, 1906, and same was duly recorded on or about that time in the conveyance records of the Parish of St. Landry, in which parish the land was situated at that time. That the parties Cleophas Guillory, Pierre Guillory, Lubin Fontenot, Jean Baptiste and Gus Miller, purchasers from Henry Hunsicker, had his title examined by an attorney before buying. His title was the patent that had been issued to him, and the attorney advised that it was all right.

The Levy patent had been recorded in the patent book, but no notation or entry appeared on the entry books of the land office showing that the land had been sold or otherwise disposed of by the State; consequently, according to the books, ordinarily the guide in such matters, the land in question was subject to sale and was purchased by said Hunsicker accordingly.

At the time defendants and their authors purchased from Henry Hunsicker, it was not known that a patent had previously issued to Alphonse Levy, due to the fact mentioned. The parts of the tract of land purchased by each of the defendants from Hunsicker were surveyed by R. M. Hollier, surveyor, in less than a year after their purchase, and the limits of each were definitely established and marked, and the boundary marks and limits of each have been kept visible by the parties claiming within said limits. Some of the first purchasers from Hunsicker subsequently sold parts of their tract. The purchasers from them are the other defendants. Defendants were assessed for the land from the time they obtained titles, and each, annually, paid State and Parish taxes thereon. Their possession from the beginning was by titles in due form and'acquired in good faith. They cut and removed timber for their own use at different times. Commencing in July, 1907, they sold the white oak timber on their respective tracts, some to Kern & Company, others to Friedlaender & Olieven Company. These purchasers forthwith cut roads, built camps, carried on the work of cutting and removing the timber purchased, and finished within a year after they had commenced operations.

The evidence does not show that the defendants were aware of the outstanding patent and title chain deraigned therefrom until this suit was filed. The plaintiff never had the land surveyed, never exercised over it any active possession, but the evidence shows that so'me eighteen or twenty years ago, counted from the time of the trial, J. E. Miller was hired to look after it. Miller testifies thqt he went over it, and noticed that depredations had been committed. That the agents of Kern & Company and of Friedlaender & Olieven were cutting and removing timber, which fact he says he reported to his employer, but it does not appear that his employer ever took any notice of it, and no effort was made to stop it nor were the defendants warned of the adverse claim.

The evidence shows, however, that the Pacific Improvement Company, and after them, A. R. Scott, authors of plaintiff, paid taxes on the property from 1916 to 1926.

This suit was filed in February, 1927, so that the question is: Are the titles which the defendants acquired from Henry Hunsicker, in fact just titles, acquired in good faith, and were the acts of the defendants after buying and taking title from Henry Hunsicker, sufficent to establish the taking, commencement and maintenance of the actual, continuous, peaceable, public £rhd unequivocal possession required by the Civil Code. Articles 3478 and 3487? The land could have been fenced, but that is not done except when it is valuable for pasturage. The evidence does not show that this land is valuable as such.

If the defendants’ acts were not sufficient, then the prescription pleaded is seldom applicable to lands of this character. But the law provides that it shall be applicable. “What shall be considered a delivery of possession is determined by the rules of law applicable to the situation and nature of the property.” C. C. Arts. 1924 and 2247.

The Supreme Court has considered acts of different kinds, acording to the situation and nature of the land, sufficient for the purpose of taking, commencing and maintaining • the actual possession of land of this character. Ranson vs. Long, 13 La. Ann. 523; Barron vs. Wilson, 38 La. Ann. 209; Michel vs. Stream, 48 La. Ann. 341, 19 So. 215; Chamberlin vs. Abadie, 48 La. Ann. 587, 19 So. 574; South La. Land Co. vs. Riggs Cypress Co., 119 La. 193, 43 So. 1003; McHugh vs. Albert Hanson Lumber Co., 129 La. 680, 56 So. 636.

The surveying, marking, keeping marked definite boundary limits, and cutting and removing the white oak timber, opening roads, building and occupation of camps for the purpose, all under the authority of the defendants, amounted to the taking and commencement of an actual possession by each of the purchasers more than ten years previous to any knowledge of plaintiff’s claim, and ousted from the beginning of same any possession that may, have existed by virtue of the patent issued to Alphonse Levy.

We, therefore- hold that the defendants’ plea of prescription under the Civil Code Article 3478 et seq. was (properly sustained.

ON REHEARING

Plaintiff claims that the defendants must depend on their own act in order to sustain their actual possession in the beginning. This is true. Some of these recorded owners of the land sold the timber on their respective tracts to'Kern & Company, and others to Friedlaender & Olieven Company, and these timber purchasers immediately entered on the several tracts which together comprised the entire Hun-sicker tract under the authority of the title owners of the land, and commenced removing the timber in the way stated in the opinion.

We therefore think that the operations of these parties, entering on the land, and removing the timber in the way stated in the opinion, was as to the world, the act of the defendants, was a public manifestation of the authority that the defendants exercised over the land, their control of it, and indicated their open possession of it.

For these reasons the rehearing is refused.


text:
    No. 369
    First Circuit
    HAWTHORN v. HILLYER-DEUTSCH-EDWARDS, INC.
    (January 9, 1929. Opinion and Decree.)
    Chandler and Taylor, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   ELLIOTT, J.

Oscar Hawthorn, employee of Hillyer-Deutsch-Edwards, Inc., was struck on the head and badly hurt by the cab of one of its locomotives on which he was employed as fireman.. He sues for compensation under the Employer’s Liability Act of this State, Section 8 (amd. Act 85 of 1926), on the ground that the injury he received has produced in him a permanent total disability to do work of any kind.

He alleges that he was employed on one of defendant’s logging trains as fireman. That on April 1, 1927, while engaged in his duties as such, that the train went over a portion of track, from under which the foundation had been washed out or removed. That he was standing on the tender of the engine at the time stacking fuel, and when it entered on the track, from under which the foundation had been washed, the roof of the tender dropped down and struck him on the head. That he was thereby knocked to the floor of the tender and greatly injured. That the blow depressed his skull, causing pain in his head and eyes; injured his hearing, neck, right arm and the nerves of his left leg to the extent that he can not use his foot. That it also caused loss of sensation in certain areas of his left leg, right arm and hand, and materially impaired the use of same. That it also split one of the joints of his thumb, resulting in the loss of its use.

The defendant admitted plaintiff’s employment; alleges that he bumped his head on the roof of the cab. That the blow on the head and neck was accidental; that it had notice of an accidental bump or bruise to plaintiff’s head and neck, but of no other injuries. The other averments in plaintiff’s petition were denied.

The lower court, for reasons stated in writing, rendered judgment in favor of the plaintiff as prayed for. Defendant has appealed.

The plaintiff filed in this court a motion to dismiss the appeal. Attached to the motion is a letter, abandoning or withdrawing the motion. The motion is looked on as abandoned.

The plaintiff is a negro laborer, about 38 years old. Abbreviating his testimony to substance and effect, his statement is, that he was standing in the cab of the locomotive piling up wood when the engine ran into a washout. That when the back driving wheels of the engine dropped into the washout, the drop caused the cab in which he was standing to hit him on the head. That the blow knocked a hole in his head; knocked, him down and in falling he fell on his head, right side and shoulder. That as a result of his injury he was confined to his bed for about four weeks, rendered foolish about the head, had blind staggering spells, lost the use of his right arm, left leg and foot, the grip in both hands, and suffered severe and enduring pain. That the fifth week after his injury, although still suffering and unable to work, the doctor discontinued his insurance,, thereby compelling him to go back to work. That when he returned to work the brakeman said to him: “You are back out — and I said yes, but I am not well and I do not believe that I am able to work,” etc. He remained on the work, however, about five weeks, receiving the same pay that he had been getting at the time he was injured. That after firing about five weeks he fell out. That at the time he returned and during all the time he was working he' suffered with spells in his head, back and limbs. That after about five weeks he got suddenly sick,, could not see and had to quit work. That when his sight came back he went home and had not tried to work since. That he was unable to do work of any kind. The plaintiff further testified that he could not have done the work of firing the engine when he returned, had it not been that the brakeman helped him; that the brakeman on the train fired the engine and helped him do his work. Plaintiff’s wife testified that he complained to her of his head, neck and shoulder when he was brought home, following his injury in the locomotive cab, and continued to do so; that he could not use his hand at the time he returned to work. That she discovered a dent in his head, etc.

The evidence shows that plaintiff has but one leg. He lost his right leg in an accident about 15 years ago while working for another lumber company. His right leg has been amputated just below the knee. He has also lost the two middle fingers on his right hand. This happened to him about five years ago while working for still another lumber company.

In an effort to show that plaintiff was all right and not suffering when he returned to work, defendant called the foreman of its steel gang. This witness testified that he saw the plaintiff working as fireman after his return. That plaintiff never complained to him. That he worked after his return, as far as he observed, as well as he did before he was hurt. That it took an able bodied man to do the work, and that nobody helped him as 'far as he knew. This witness intimates that the reason why plaintiff quit work after lie returned, was because lie got too hot. He says that it was a very hot day; 'that two other men got over-heated that day.

The defendant also called its superintendent for that purpose. The superintendent testified that he saw plaintiff firing the engine after he came back on the work. The plaintiff never complained to him after coming back. That nobody helped him do his work as far as he knew. That plaintiff asked him for money which he gave him after he had come back, and quit in oirder to go to New Orleans to get shots, etc.

The plaintiff was treated following his injury in the cab by a physician in the employ of the defendant. The plaintiff testifies that he complained to this doctor about the injury to his head, neck and shoulder. This physician however, was not aware of the injury to plaintiff’s head.

Four physicians examined plaintiff at the instance of his attorney previous to the trial, in order to ascertain his condition. They say that they went about it by obtaining from the plaintiff the history of his injury and what he had to say about his condition. This testimony was taken as provided for by Act 96 of 1926. The testimony of a physician was also taken in the same way by the defendant. The physician in the employ of defendant and who had treated plaintiff for his injuries was examined in open court. The four called by the plaintiff and the one who testified out of court for the defendant, found on their examination of the plaintiff a depressed scar on his head. One of those called by plaintiff expressed the opinion that it was a depression of the skull. The others were not explicit as to whether there was, or was not a depres-' sion of the skull, but all five agreed that there existed a depression noticeable to the eye. From their testimony we infer that it was so noticeable that it could not have been overlooked by even a casual examination. The four physicians called by the plaintiff and the one who testified out of court for the defendant also united in saying that plaintiff suffered a weakness in his left leg and foot, and diminished power of grasp or grip in both hands. The loss of grip in the hands and of power in the foot seems to have also been quité evident. The four called by the plaintiff found in addition, that plaintiff was deaf in his right ear; had suffered a loss of strength and sensation in both arms, back of his neck and in his left leg, foot and small toes, and were positive that plaintiff’s loss of strength in his arms, hand, left leg and foot was such that he was unable to perform manual labor. They were also of the opinion that plaintiff’s condition was brought about as a result of trauma, involving his neck and shoulder, and not by disease, and that there was but little prospect of improvement. One of the physicians explained in response to a question on the subject, that an ignorant negro could not have deceived him as to his condition, in the way stated. One of the physicians called by plaintiff had specialized in mental and nervous disorders.

The physician who treated plaintiff when he was first injured did not examine him as to the condition of his head, loss of sensation, loss of strength in his hands, arms, legs and foot, and therefore has expressed no opinion on that subject. The other physician called by defendant expressed the opinion that there was no loss of hearing nor of sensation. All of the physicians expressed the opinion that injuries such as plaintiff has or claims to have, would have prevented him firing the engine unless aided. The physician who treated plaintiff following his injury in the cab did not think any serious result had followed. He admits that plaintiff complained of pain in the temple region, in his neck and back of his neck; but he was inclined to believe that he fell out, after he returned to work, as a result of sun stroke, and that as to the other symptoms of which he complained, same could be accounted for by a disease which he found him to have. The plaintiff, in his opinion, was feigning injury for the purpose of getting paid off and there was nothing in fact the matter with him. He admits that trauma on the neck could and likely would cause troubles like those which plaintiff claims came on him.

The trial court had the plaintiff before him and we have his opinion as to his condition.

It is certain that plaintiff received a heavy blow on the head by the cab of defendant’s locomotive, while engaged in his work as fireman, and the preponderance of the opinion evidence, and all the substantive proof on the subject, that is, proof based on sufficient knowledge to justify regarding it as such, is to the effect that plaintiff has sustained, as a result of the injury so received, a permanent total disability to do manual labor. According to the evidence, this is the only kind which the plaintiff is capable of performing for a livelihood.

The defendant urges with consummate force and strength of argument that there is nothing the matter with the plaintiff, that he is not suffering as he claims; but that if he is, it is not due to the trauma, but to a disease which he has. But the record does not support that view of the case.

If defendant had really felt that plaintiff’s statement' that he was suffering at the time he returned to work and could not have fired the engine unless he had been aided by the brakeman was untrue, it could have contradicted hik statement by the engineer for whom he fired and the brakeman on the train.

It was all right to call the foreman of the steel gang and the superintendent, but certainly the log train was often at a different place from where they were, and they could have hardly be^n in a position to know, except now and then, whether plaintiff was being assisted in firing the engine or not. The engineer on the locomotive, under whom plaintiff worked as fireman, and the brakeman on the train, who, plaintiff says assisted him, knew the facts better than the foreman of the steel gang and the superintendent, and could have contradicted him if his testimony given in chief had been untrue. The engineer and brakeman were presumably within defendant’s reach at the time of the trial, as well as the foreman and superintendent. If plaintiff appeared to be suffering when he returned to work, they were in a position to observe it. If he complained they would be almost bound to have heard it, and if the brakeman assisted and fired the engine because of the condition in which he appeared to be, it was within their knowledge. The failure to call them is not explained. In the absence of this failure we take it that it was not done because it was found that they would not contradict the plaintiff.

As for defendant’s further theory that plaintiff fell out after he returned to work as the result of sun stroke or because of over-heat, plaintiff was in the cab exposed to the heat of the engine, but not to that of the sun. The preponderance of the evidence does not support this theory as the cause of his collapse, but that it was due to the previous injury in the cab.

We are therefore of the opinion that the conclusion arrived at by the lower court was the proper one.

The judgment appealed from is therefore affirmed. The defendant and appellant to pay the cost in both courts.


author: ELLIOTT, J. ELLIOTT, J.

text:
    No. 340
    First Circuit
    STEVENS v. GAUDE
    (December 4, 1928. Opinion and Decree.)
    (January 9, 1929. Rehearing Refused.)
    (February 11, 1929. Writ of Certiorari and Review Denied by Supreme Court.)
    J. Oliver Bouanchaud and Clyde C. Rat-cliff, of Baton Rouge, attorneys for plaintiff, appellee.
    F. J. Whitehead, of Port Allen, attorney for defendant, appellant.
   ELLIOTT, J.

Frederick LeRoy Stevens claims of Orestide J. Gaude $480.00, with interest and attorney’s fees thereon. The claim is based on six promissory notes executed and signed by said Gaude, ¡payable to the order of the Brenard Manufacturing Company. The Brenard Manufacturing Company endorsed the notes to plaintiff Stevens, and he endorsed them to any bank or banker for collection only.

The defendant denies that he owes the notes, and claims that he should not be compelled to pay them. He alleges that he signed and delivered them to the Brenard Manufacturing Company in payment for six Heraldyne Radio Receiving Sets, guaranteed by the Brenard Manufacturing Company to operate satisfactorily, and to be free from defects. That the instruments were defective and unsatisfactory, and he could not place an order for, nor sell them. That under the agreement whereby he bought them, it was stipulated in the event the amount of the notes was not realized from the sale of the sets, that the difference would be paid by the Brenard Manufacturing Company, or that the Brenard Manufacturing Company would repurchase the sets. That he endeavored to sell them, but no sale could be made because of the poor workmanship of, or due to the defects of the instruments. That therefore, no consideration existed for said notes at the time they were executed and delivered to the Brenard Manufacturing Company.

The defendant denies that the plaintiff, Stevens, is the holder and owner of the notes in good faith for value in due course before maturity, and alleges that plaintiff had notice of the Brenard Manufacturing Company’s defective title. That the endorsement made by the Brenard Manufacturing Company was not a legal endorsement and carried no title to said Stevens.

There was judgment in favor of the plaintiff, and defendant has appealed.

Objections were urged on the trial to the admissibility of the contract signed by the defendant and the Brenard Manufacturing Company, to which the notes were attached at the time they were signed. The contract in question is annexed to and made part of the testimony taken and introduced by the plaintiff. The objections are not urged in plaintiff’s brief, and we take it that all objections on that account have been abandoned.

The testimony of the defendant' Gaude, corroborated by his son and two other witnesses, shows that the Radio Receiving Sets were not satisfactory, and that for some reason they would not work, and could not be made by him to do so in a satisfactory manner. That they were therefore not saleable. There was no evidence to the contrary. We therefore find that the notes are and were without consideration at the time they were executed. That the title of the Brenard Manufacturing Company to the notes was defective at the time plaintiff claims to have acquired them, and that the Brenard Manufacturing Company could not, for said reason collect them against the defendant.

The notes having been executed and delivered to the Brenard Manufacturing Company in this State, they constitute a Louisiana contract, and are governed by the laws of this State.

The answers of the plaintiff Stevens were obtained by interrogatories propounded to him by defendant. The testimony of Stevens and that of J. L. Record was also taken in Iowa City, Iowa. The examination in Iowa City was conducted by G. A. Kenderdine, attorney of that city, for the plaintiff, and by William R. Hart, attorney, also of that city, for the defendant.

The testimony taken at Iowa City shows the Brenard Manufacturing Company to be a partnership composed of J. L. Record and T. O. Loveland as equal partners, and that they have been in business, conducting it in said name and style since 1902, dealing in phonographs and supplies, and radios and supplies.

The plaintiff Stevens, and J. L. Record claim in their direct examination, that he, Stevens, has never been employed by the Brenard Manufacturing Company in any capacity. That he has no interest in their business. That they never borrowed any money from him. That they have sold him notes a number of times, always selling them outright. Mr. Record testifies that the Brenard Manufacturing Company guarantees their goods absolutely, and stands back of them unqualifiedly. Mr. Record testifies that the Brenard Manufacturing Company sold Mr. Stevens the Gaude notes together with a bunch of other notes, due by various parties, on October 14, 1926. That the notes amounted in the aggregate to $5507.33. That the price $4846.45, was received from him at the time by means of a check which was cashed.

Mr. Stevens testified to the purchase in the same terms. He further testified that he was an attorney at law, engaged in active practice, and an investor. Both Stevens and Record claim that the Brenard Manufacturing Company have no interest in the notes. Mr. Stevens testifies that he did not know what the notes had been given for, was not aware of any infirmity in the title of the Brenard Manufacturing Company, and had no reason to believe that there would be any difficulty in collecting the notes when they fell due.

But both Stevens and Record make statements and admissions on cross-examination, from which it seems to us that their claim of Stevens being the owner and holder of the notes .cannot be maintained. Our conclusion is that Mr. Kenderdine, although conducting the examination in Iowa City in the name of and ostensibly as the attorney for Mr. Stevens, was, in fact, not his attorney therein, nor in his employ nor working in his behalf, but was the attorney for the Brenard Manufacturing Company, and that in bringing and prosecuting suit on these notes and in the employment of local counsel for the purpose, he was in fact acting for and working in the interest of the Brenard Manufacturing Company. Mr. Stevens, in his testimony on this subject, commencing at the bottom of page 20, and continuing on pages 21 and 22, says in response to questions:

“Q. Is there not a tacit agreement between you and the owners of the Brenard Manufacturing Company whereby the attorney for the Brenard Manufacturing Company handles all the Brenard notes, and the said company pays all expenses incidental to the collection thereof?
“A. There isn’t any tacit agreement to that effect, but there is an actual agreement, namely, that the Brenard Manufacturing Company agreed when they sold notes to me, to defray any expenses that might arise in the collection of any notes that they sold me; and that holds good with these notes and all other notes that I bought from them, and I would not have bought them, if I had not had that kind of arrangement.
“Q. Is Mr. Kinderdine your attorney in other matters, than actions upon similar notes as these in controversy?
“A. Mr. Kinderdine isn’t my attorney in any other matter.
“Q. Who are the attorneys employed by you in Baton Rouge, Louisiana?
“A. Mr. Clyde C. Ratcliff is the attorney in this case.
“Q. Who hired him?
“A. Mr. Kinderdine.
“Q. Did you ever have any correspondence with him about this suit, with reference to employing him as your attorney?
“A. I did not.”

Continuing along the same line he says that the fee of the local attorney is contingent upon his success, but if not, the Brenard Manufacturing Company pays him. •That Mr. Kenderdine is attorney for the Brenard Manufacturing Company; that a large part of his business is for the Brenard Manufacturing Company, but he handles other business.

(Page 24):

“Q. Mr. Kenderdine or the Brenard Manufacturing Company selects the attorney in the home city of the maker when a note is not paid by the maker and sends the note for collection to that attorney. Is that not true?
“A. When these notes are turned over to Mr. Kenderdine for collection, I leave it entirely to him as to the procedure of collecting in the matter. The selection of the attorney and so on, is left to him.”

He further says that he could be absent from his business a year or more and the collection would go on just the same, but that the purchase of the notes would not go on.

Referring to the question of delivery Mr. Stevens testified that Mr. Record endorsed the notes and delivered them to the bank at Iowa City, by- his direction, on October 14, 1926. That he left them with the bank for collection.

(Page 25) :

“Q. When money is paid in by a maker of such notes as these in controversy, is it not placed in a special bank account in your name to be used for the purpose of purchasing other notes from the Brenard Manufacturing Company under the plan you testified to?
“A. Some times it is, and some times it is taken by me and used for other purposes. It depends on the condition of my finances at the time, and what I wish to do with the money.”

Mr. Stevens in answering the interrogatories propounded to him by the defendant on July 21, 1927, said in answer to the sixth question:

“At the time I pui*chased the notes none of the notes were yet due, and, of course, had not been presented to the defendant. After I purchased the notes, they were deposited by me in the bank at Iowa City for collection, and were forwarded as they became due through the bank to its correspondent, and presented by the correspondent bank to the maker, O. J. Gaude, and payments were refused thereon.”

In answer to the seventh interrogatory propounded to him by defendant on July 21, 1927, he said:

“I know that the Brenard Manufacturing Company never did turn these notes over to any one for collection. After I purchased the notes, and payment was refused, I turned them over to a local attorney, Mr. Kenderdine, and requested him to collect them, and he in turn took the matter up with Laycock, Borron & Laycock at Plaquemine, but did not employ them to bi’ing action on the said notes.”

Mr. Record says that the Brenard Manufacturing Company had an agreement with Mr. Stevens, when they sold him notes, that they were to endorse them, and if there was any expense arising in the collection of any of the notes, the Brenard Manufacturing Company would defray the expenses. That they advanced the Court costs and other expenses attached to the Stevens law suits on the Brenard Manufacturing Company notes.

(Page 39):

“Q. When the notes are not paid which have been sold by your Company to Mr. Stevens, Mr. G. A. Kenderdine acts as Iowa City attorney for Mr. Stevens, does he not?
“A. Yes, sir.
“Q. Mr. Kenderdine is employed by your Company as its attorney by the year, is he not?
“A. Mr. Kenderdine is retained by us to handle a large portion of our business on an annual retainer.
“Q. And his office rent and stenographer’s expense and all other expenses are paid by your Company, are they not?
“A. His office rent, stenographer’s expense and all other expenses are charged against his office in figuring up a settlement at the end of the year.
“Q. And through Mr. Kenderdine, attorneys are employed in the home counties of the makers of these notes with authority to sue the maker, is that not so?
“A. Yes, sir.”

Mr. Record fui'ther testified that the fees of the attorneys are usually taken out of the money collected by them, but if not, the Brenard Manufacturing Company pays them. The Brenard Manufacturing Company advances all Court costs, and if the suit is lost, the entire loss is on them. The Brenard Manufacturing Company makes good any loss to Mr. Stevens, on the ground that they are liable as endorsers to Mr. Stevens, for any loss on the notes.

On the question of delivery, Mr. Record testified that he endorsed the notes to Mr. Stevens, and delivered them to the bank at the order of Mr. Stevens. It thus appears from the testimony of Messrs. Stevens and Record, on March 6, 1928, that Mr. Record delivered the notes to the bank by the direction or request of Mr. Stevens, but according to the testimony of Mr. Stevens on July 21, 1927, lie deposited them in the bank for collection, himself. Messrs. Stevens and Record testified on March 6, 1928, that Mr. Kenderdine took the notes in hand for collection by virtue of his employment as attorney for the Brenard Manufacturing Company, but Mr. Stevens, testifying on July 21, 1927, says that he, himself, turned the notes over to Mr. Kenderdine and requested him to collect them.

The agreement mentioned by Messrs. Stevens ail'd Record, under which the Brenard Manufacturing Company, as endorsers, undertook to make good any loss that Mr. Stevens might incur on notes purchased from them, would have been all right, if it had been seriously entered into and carried out in pursuance of a business transaction. But it is the intent, and the act done pursuant thereto, that governs.

In the same way, the admission of Mr. Stevens, that the money paid in by the makers of the Brenard Manufacturing Company notes, is: “Some times placed in a special bank account,” in his name for the purpose of purchasing other notes from the Brenard Manufacturing Company, is all right or all wrong, according to the intent in mind. In this case, the admission leaves it for surmise whether the proceeds of the notes in question are to be placed in a special bank account in his name, to be again used in the same way. If the proceeds are replaced, as collected, in the bank, for the purpose of giving a false negotiation of notes the cloak of a real one, then the deposit in the bank, cannot make truth out of an untruth.

Taking all the facts and circumstances on the subject into account, it is our conclusion that these notes were never negotiated and delivered to Mr. Stevens in the execution and performance of an intent to sell them to him outright, as the plaintiff claims, but that the transaction between Mr. Stevens and the Brenard Manufacturing Company was merely a plan whereby the notes were sued on in the name of Mr. Stevens for the purpose of cutting off the equity of the makers. That the Brenard Manufacturing Company remained the real party in interest, and as such, are in pursuit of same in this case.

“The evidence in proof of conspiracy will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary to prove that the defendants came together and actually agreed in terms to have that design and to pursue it by common means. If it be proved that the defendants pursued by their acts, the same object, often by the same means, one performing one part and another, another part of the same so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in .a conspiracy to effect that object.” Greenleaf, vol. 3, section 93, 12th Ed.

The plan between the plaintiff and the Brenard Manufacturing Company may be established in the same way. Regnier vs. La. State Marine & Fire Ins. Co., 12 La. Ann. 336; Cecile F. M. C. vs. St. Denis F. W. C., 14 La. Ann. 184; Johnson vs. Mayer, 30 La. Ann. 1203; Simon Gregory et al. vs. H. & C. Newman et al, 50 La. Ann. 338, 23 So. 329.

The testimony of Messrs. Stevens and Record shows that the control of these notes never passed out of the hands of the Brenard Manufacturing Company. Their testimony justifies the conclusion that the Brenard Manufacturing Company, acting through Mr. Kenderdine, their 'attorney, handles them as they see best. Acting through Mr. Kenderdine, they authorized this suit against Mr. Gaude.

Mr. Stevens is a practicing attorney, engaged in active practice at Iowa City. A large part of his practice is collection work, yet, he leaves the collection of these notes, and the institution and prosecution of suits thereon, entirely in the hands of Mr. Kenderdine, who acts in his name, hut under the authority of the Brenard Manufacturing Company. Mr. Stevens could he absent from his office a year and the collection would go on in his absence just the same. This shows lack of proprietary interest in the notes on the part of Mr. Stevens, and the existence of a proprietary and controlling interest therein on the part of the Brenard Manufacturing Company.

Mr. Stevens refused to say how many notes of this kind had been placed in the hands of attorneys for collection, refused to give the names and addresses of attorneys with whom notes of this kind had been placed for collection, and declined to give any information along that line. 'It may be that he did not know, but if he does not, it tends to further indicate a lack of interest in the notes. He knew that a transfer of same to him before maturity in good faith on his part, and for valuable consideration paid, would cut off the equity of Mr. Gaude.

Mr. Record, questioned as to how many notes obtained in payment of radio sets had been contested and placed in the hands of attorneys for collection, also refused to say, but he says that the Brenard Manufacturing Company have disposed of six to eight hundred thousand dollars worth of such notes, and that Mr. Stevens was one of their purchasers; that they had sold Mr. Stevens at least a hundred thousand dollars worth within the last twelve months.

Mr. Stevens admits that he never made any investigation as to the financial solvency of the maker of these notes, but accepted the assurance of the Brenard Manufacturing Company as to his rating. He was aware that in every case in which the payment of notes, acquired from the Brenard Manufacturing Company had been resisted, that the defense' was fraud, misrepresentation and failure of consideration, which,, he says, is the standard defense of people who try to get out of their obligations. He admits that he made no effort in the present case to find out if such defense would be made.

Mr. Record testified that it was not his idea in negotiating these notes to deprive the maker of his equities against the Brenard Manufacturing Company, and yet the Brenard Manufacturing Company did that very thing in the present case. The admission that Gaude’s telegram: “Radios unsatisfactory, cannot sell same, cannot handle propositoin, Advise disposal sets,” was received by the Brenard Manufacturing Company before the pretended transfer of the notes to Mr. Stevens, would have that effect, if effective.

The failure of consideration is a good defense against any person not a holder in due course. Act 64 of 1904, Sec. 28.

An instrument is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder thereof. Sec. 30.

To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. Sec. 56.

In Lanfear vs. Blossman, 1 La. Ann. 148, at page 156 (45 Am. Dec. 76), the Court approvingly quotes the following from Story on Bills of Exchange, Section 194:

“What circumstances will amount to actual or constructive notice of any defect or infirmity in the title of the bill, so as to let it in as a bar or defense against a holder for value, has been a matter of much discussion and of no small diversity of judicial opinion. It is agreed on all sides that express notice is not indispensible, but will be sufficient if the circumstances are of such a strong arid pointed character as necessarily to cast a shade on the transaction and to put the holder on inquiry.”

In Hays vs. Lapeyre & McCaleb, 48 La. Ann. 749, 19 So. 821, 35 L. R. A. 647, the Court held:

“There are circumstances which place the ho.lder of paper in circulation, upon inquiry, without direct ' notice of any infirmity of title.”

When the evidence has shown that the title of the party who first "obtained the note is defective, then the burden of proof is upon the party obtaining it from the first party to show that he acquired it without notice, in due course, for valuable consideration before maturity. Act 64 of 1904, Section 59. Appalachian Corporation vs. Ayo, 145 La. 201, 82 So. 89; Parks vs. Hughes, 145 La. 221, 82 So. 202; Steeg vs. Codifer, 157 La. 299, 102 A. 407.

The actual notice required by Section 56 of the Act mentioned has been satisfied by the showing in this case. Mr. Stevens failed to carry the burden of proof incumbent on him, and therefore, has no more right to compel payment of the notes sued on, than the Brenard Manufacturing Company would have, and as heretofore stated, they have not that right.

The judgment appealed from, is therefore erroneous and contrary to the law and the evidence, and it is therefore ordered adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the plaintiff’s demand on said notes is now rejected at his costs in both Courts.

ON APPLICATION FOR REHEARING.

ELLIOTT, J.

F. L. Stevens, plaintiff and appellee, alleges errors to his prejudice in the opinion herein rendered, assigning eleven in number, and supports same by brief.

In the first he alleges that we are in error in holding that his objections to testimony offered by defendant, are not urged in -his brief, and that all objections on that account had been abandoned.

In the sixth it is said that we are in error in holding that the depositions of Messrs. Stevens and Record were taken and introduced by plaintiff; same having been introduced by defendant over his objection.

The language to which he refers in these two assignments is that, in which after stating the case, we say:

“Objections were urged on the trial to the admissibility of the contract signed by the defendant and the Brenard Mfg. Co., to which the notes were attached at the time they were signed. The contract in question is annexed to and made part of the testimony taken and introduced by the plaintiff. The objections are not urged in plaintiff’s brief, and we take it that all objections on that account have been abandoned.”

The record bears out the statement in the opinion, except that the contract was not introduced in evidence on the trial by the plaintiff; it was done by the defendant. But the statement in the opinion is correct in all other respects, and it was in fact offered in evidence by plaintiff, and that fact prompted the statement in the opinion. It occurred in this way: The plaintiff Stevens acting by G. A. Kenderdine as his attorney, and the defendant Gaude, acting by W. R. Hart as his attorney, entered into a written agreement in the case a month or more before the trial, under which the testimony of the plaintiff Stevens and that of J. L. Record of the firm, Brenard Manufacturing Co., was taken by their mutual consent before I. M. H. Leuz, Notary Public, at Iowa City, Iowa, for the purpose of being used on the trial.

Mr. Stevens voluntarily appeared before the notary in Iowa City, and was examined in chief by Mr. Kenderdine, as his attorney, and was then cross-examined by Mr. Hart, as attorney for Mr. Gaude.

Mr. Record appeared before the notary public and was examined in the same way. Mr. Record on being examined in chief by Mr. Kenderdine, as attorney for Mr. Stevens, was asked:

“Q. Was the order to which you refer an oral or a written order?
“A. It was a printed order filled in and signed at Port Allen, Louisiana, on September 3, 1926.
“Q. Do you have that order in your possession?
“A. I do.
“Q. I now hand you this order marked Exhibit 1, and ask you if you know what it is?
“A. I do, it is the order to which I referred.” (Plaintiff offers Exhibit 1 in evidence.)

Exhibit 1 is the contract mentioned in the opinion. It was offered in evidence by the plaintiff, and as such was attached to the depositions, but when the same contract was subsequently offered in evidence by the defendant, the plaintiff, by hi& local counsel, objected.

The plaintiff could not object on the trial to what he had previously offered in evidence himself.

Plaintiff’s brief in this Court mentions the contract, but contains no argument against the permission which the trial judge gavd defendant to offer the contract in evidence and have it filed. We therefore thought the local objection had been abandoned, and so stated in the opinion. The argument advanced in plaintiff’s brief is not about the contract, but has reference to the depositions of Messrs; Stevens and Record, and to the offering of same by defendant.

One of the grounds of alleged error is that the Court permitted the defendant to offer in evidence the depositions of Messrs. Stevens and Record which had been taken in Iowa City, previous to the trial, and have them filed. The objection he urged was as follows:

“Plaintiff objects to the offering of the above testimony on the grounds that defendant has failed to establish that the notes were not acquired by plaintiff after maturity. (The word 'not’ inadvertently appears on the note of evidence.) And on the further grounds that he is attempting to establish fraud on the part of the plaintiff, without having alleged fraud on the part of the plaintiff in his petition.”

Plaintiff contends that we did not rule on the above exception, and that it was urged in his brief. This contention is the eighth assignment of errors in his petition.

The argument in plaintiff’s brief on this matter was not overlooked in this Court. It was given the same consideration as the other phases of the case. We noticed that the situation had been observed by the lower court in ruling. The right of the defendant to offer the depositions seemed so plain and the permission to do so by the lower court seemed so incontestable, that it did not occur to us in writing the opinion that the ruling should be acted on, and either set aside or affirmed, before passing to the merits of the case.

We now see that it would have been better, and that we should have taken up the ruling and acted on it, since it was urged, but the plaintiff has been, in no way, prejudiced by the fact that it was not done.

The following is our appreciation of the facts concerning the matter. The depositions of Messrs. Stevens and Record were taken by the mutual consent of the plaintiff Stevens and the defendant Gaude in Iowa City, and in taking same, each side appeared by attorneys. The evident purpose of taking the depositions in the case, at the time and place, was to use the depositions on the trial of the case. The parties embodied in their agreement on the subject, the following clause at the bottom:

“And that neither side shall make objections to questions at the time of taking the depositions, but it is agreed that all objections may be made at the time of the trial by either side, just as though the witnesses were actually on the stand in open court and testifying in said cause.”

The plaintiff could not, after giving his consent to the agreement and appearing voluntarily before the notary public and giving his answers to questions propounded by his attorney, and by the attorney for the defendant, as was done by Mr. Record, subsequently object by his local counsel to what he had done; that is, not on the grounds stated. He had the right, when the depositions were offered in the trial court, to point out any question or answer that he thought inadmissible, but he did not do that. His objection by local counsel was to the depositions of himself and Mr. Record as a whole. He could not offer an objection of that kind. Under the agreement either side was given the right to offer the depositions and have them filed, and neither side had the right to object, except, to particular questions or answers or some particular matter of fact. As a result of plaintiff’s consent, previously given, the offering by defendant was a mere formality which the lower court permitted because of plaintiff’s consent, and as to which there was no ground for contest and nothing in the permission given, which in writing the opinion seemed to us worthy of remark or review.

If the opinion had acted on the objection, we would have merely said that the lower court properly permitted defendant to offer the depositions in evidence and have them filed, because of plaintiff’s consent, previously given, that it be done. The plaintiff can not appeal from and have reviewed a matter to which he has consented. We therefore deem it useless to grant a rehearing for the purpose of formally acting on the ruling of the lower court permitting defendant to offer in evidence and' have filed, the depositions of Messrs. Stevens and Record, taken in the way, and under the circumstances stated.

Plaintiff assigns as error number two, that this Court érred in holding that the notes sued on had never been negotiated and delivered to the plaintiff Stevens, defendant having admitted same through his attorney, and he cites page three of the note of testimony.

We did not consider in arriving at our conclusion that the defendant had made any such admission, although plaintiff in his brief contended and still contends in his application for rehearing, that defendant had abandoned his defense that plaintiff did not acquire the notes before maturity. He complains that the opinion does not refer to nor act on defendant’s admission.

The record shows on this subject, that when the defendant offered the depositions of Messrs. Stevens and Record in evidence, plaintiff, by his local attorneys, objected on the grounds heretofore stated: “That defendant has failed to establish that the notes were not acquired by plaintiff after maturity. (The word ‘not’ inadvertently appears on the note of evidence.) And on the further ground that he is attempting to establish fraud on the part of the plaintiff, without having alleged fraud, etc.” Defendant’s counsel answered the objection stating to the Court why he desired to offer the depositions in evidence, and saying:

“We prove by this testimony that Mr. Stevens is not a bona fide holder of these notes in due course. In other words we are trying to show bad faith. The evidence shows that in our pleadings I was wrong in saying that he had not acquired them before maturity.” (See note of testimony, bottom of page 2 and top of page 3.)

The pleadings to which he referred was the answer he had written in which .the defendant denied that plaintiff had acquired the notes before maturity, and in his saying: “I was wrong,” he had reference to the fact that Messrs. Stevens and Record had both testified in their depositions that Mr. Stevens had acquired the notes before maturity, and the only thing to the contrary was a matter of inference, and presumption. The question he was urging to the Court shows that it was not his purpose to make a formal admission that plaintiff had, as a matter of fact, acquired the notes before maturity. -The Court ruled that defendant could offer the depositions in evidence, and there is nothing in the ruling, nor in the note of evidence, indicating that an admission of the kind was intended. The plaitiff places a meaning' and effect on the language mentioned which cannot be justly nor reasonably accepted.

Plaintiff’s contention on this matter received our consideration. Our conclusion then and now, is indicated by our opinion on the merits of the case. ■

Plaintiff urges in his brief for rehearing that defendant does not charge him with fraud, and that the averments in his answer do not justify the opinion rendered on the merits of the case.

The answer denies plaintiff’s averments of good faith, that he gave valuable consideration for the notes and acquired them in due course, etc.

The answer alleges that plaintiff acquired them without consideration, in bad faith, and not in due course. That the defective title to said notes was obtained under circumstances amounting to fraud and breach of faith bn the part of the Brenard Manufacturing Company, its agents and employees, and that plaintiff had notice of this defective title, and did not purchase the notes, etc.'

Defendant’s allegations are sufficient for the purposes of the opinion rendered.

The plaintiff alleges in his petition for rehearing and supporting brief other errors, numbers, three, four, five, seven, nine, ten and eleven, hut these contentions all come within the scope of the merits, and were taken into account, considered and disposed of in the decision on the merits.

We have given the case, and plaintiff’s contentions, reconsideration, and our original opinion herein remains unchanged.

Rehearing refused.


text:
    No. 387
    First Circuit
    J. A. FAY & EGAN CO., INC., v. LAFAYETTE LUMBER CO., INC.
    (January 9, 1929. Opinion and Decree.)
    Mouton and DeBaillon, of Lafayette, attorneys for plaintiff, appellant.
    Yoorhies and Labbe, of Lafayette, attorneys for defendant, appellee.
   ELLIOTT, J.

J. A. Fay & Egan Co., Inc., claims of Lafayette Lumber Company, Inc., the amount of three notes' representing the balance of the purchase price of a moulding machine, amounting in the aggregate to $900.00, with interest and attorney’s fees.

Lafayette Lumber Co., Inc., resists payment and claims back from plaintiff by way of reconvention, the sum of $450.00 paid on the machine, $224.21 as freight, $71.23 for belting and $153.83 expended in constructing a foundation for the machine delivered, which defendant claims will not serve for a machine of any other make or size.

The facts show that J. A. Fay & Egan Co., Inc., acting on an order addressed to it by defendant, at its New Orleans sales office, dated June 26, 1923, sold and delivered to defendant a moulding machine, described in the contract as: “One rebuilt American 12" inside molder, will work up to 12" wide and 6" in thickness; four large feed rolls driven, all heads; four side and slotted, each fitted with a pair of knives, with three speeds of feed and counter shaft.” This machine to be thoroughly tested and ¡painted; to be guaranteed against faulty materials and workmanship, and to have been thoroughly rebuilt. Plaintiff’s manager and sales agent in New Orleans wrote the contract and sent it to the defendant for its signature. The price was $1350.00 of which $450.00 was ©aid in cash, and the balance by the three notes sued on.

The machine was shipped from plaintiff’s home plant at Cincinnati, Ohio, to. defendant at Lafayette, Louisiana. The plaintiff, in shipping, drew on defendant a sight draft for $450.00, the cash part of the purchase price, and $73.84 in addition for 'belting, and attached the draft for $523.84, also three notes sued on to be signed, to the bill of lading, thus compelling a payment of $523.84 in cash, also $224.41 in freight, and the signing of the notes sued on, before defendant could take the ma-quine out of the car. When the machine bad been taken out, set up and tested, defendant took the position that it was not :he kind nor make contracted for. That the machine contracted for, was an" “American” make, of fast speed, from seven to ten years old, which would manufacture both light and heavy moulding. That the machine delivered was a slow feed, of the Houston-American make, from ten to twelve years old, would not make moulding under 1 ys inches in width, nor less than 1 inch in thickness, nor do the work contemplated by defendant and which plaintiff guaranteed it would do.

It notified J. A. Fay & Egan Co., Inc., that the machine in question was held subject to its disposal, and that it would not pay the notes in question. The plaintiff instituted suit on the notes.

Defendant set up in its answer that it did not owe the notes, that the machine delivered was not the make nor kind contracted for, and did not have the same qualities, alleged concealment of facts, and set up a demand in reconvention.

The lower court rendered judgment rejecting plaintiff’s demand on the notes, and also against the plaintiff in favor of the defendant in reconvention for $784.05.

The plaintiff has appealed, and the defendant answering in this Court, prays that the judgment in its favor in reconvention be increased to $901.85, and in other respects affirmed. The plaintiff on its part alleging that more than one year had elapsed since the alleged concealment and defects were known to defendant, that its demand in reconvention was prescribed and barred by the prescription of one year under the law, Civil Code Arts. 2534, 2546. It accordingly filed in this Court a plea of prescription of one year against defendant’s demand in reconvention and urges that it be sustained.

When the trial commenced, plaintiff offered in evidence the contract and notes sued on and closed its case in chief. The defendant then called P. J. Voorhies, its manager, as a witness, showed him the contract used on, and requested him to read it and state whether or not any definite speeds of feed are mentioned. The plaintiff objected on the ground that the contract had been offered in evidence and speaks for itself. The objection was overruled, and the witness answered that there were no definite rates of speed mentioned in the subject matter. He was then asked whether, under the description in the contract, a fast feed machine doing both light and heavy moulding could have been delivered. The plaintiff objected on the ground that the contract speaks for itself, and that the question asked an opinion from the witness which the Court itself should determine. The Court referred the objection to the merits. The defendant introduced under this ruling a considerable amount of testimony, such as letters between the parties, and parol evidence, the purpose of which was to show that the machine which was the object and cause of the contract, was a rebuilt American make of fast speed and capable of making both heavy and light mouldings, which the evidence shows, means large and small mouldings.

The plaintiff contends that these rulings were erroneous, and urges that they be set aside and the evidence disregarded.

The defendant alleges in its answer that the description in the contract is an uncertain and indefinite description of the ■ property, and merely a general classification under which could fall machines doing different work, and containing nothing therein which would prevent the machine sold from doing the work which the plaintiff company guaranteed said machine to do, etc.

The evidence shows that there are several kinds of moulding machines. Some have fast feed, others have slow feed. Some make only large mouldings, others only light or small mouldings, and still others of fast feed will make both heavy and light mouldings. Such being the case, it follows that the written contract sued on contains a latent ambiguity which consists in the fact that it fails to state whether the machine sold is a fast or slow feed, and also whether it will make both heavy’and light mouldings. This bears on the object as well as the cause of the contract.

The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him. C. C. Art.- 2474.

Art. 2276 of the Civil Code does not apply in such a situation, to exclude any legal evidence necessary, in order to show the meaning of the contract when it is susceptible of two meanings and the description so general that it may refer to machines that are either fast or slow feed and will make both large and small sized mouldings. Greenleaf, Vol. 1, Sections 297, 298, 299 and 300.

The letters of the parties before and after the contract, and parol evidence were therefore properly admitted in order to show that the machine, which was the object and cause of the contract, was in fact a fast feed that would make both light and heavy mouldings, whereas the machine delivered was of slow feed and would make only large sizes.

The witness was also asked whether there were oral conversations and agreements and correspondence entered into pending the negotiations just prior to the date of this contract. Plaintiff objected, which objections are stated at length. They may be summarized as follows: that .the written contract was the law between the parties, such proceedings and negotiations are merged therein. That the written' evidence was not admissible beyond what is contained in the contract, or as to what may have been said before or at the time of making it, or since, or to show a condition under the contract different from that expressed in the act consented to before or after it was- entered into, etc.

That defendant having admitted in its answer that it is still in possession of the machine, no evidence showing or intending to show character or warranty or that the goods delivered are different from or inferior to those sold is admissible, etc. That the contract provides that the retention of the machine after thirty days from its arrival at its destination constitutes a trial and acceptance and is a conclusive admission of the truth of all representations made by or for the seller, and a fulfillment of all its contracts of warranty expressed or implied.

The Court referred the exception to the merits, and the defendant introduced under this ruling a large amount of evidence in the form of letters, telegrams, conversations over the phone and oral conversations between the parties before and after the contract. The plaintiff urges that the ruling was erroneous, and that it should be set aside and the evidence disregarded.

The object and purpose of the testimony was to show that the machine shipped and delivered to the defendant was not the make or kind called for by the contract.

The word “fraud” is not expressly used in the answer, but defendant alleges that plaintiff shipped and delivered to it a different make and kind of machine from that contracted for, and inferior to it in quality. That it would not do the work which plaintiff guaranteed the machine contracted for, would do.

The Civil Code Art. 2547, on the subject of vices which the seller has concealed from the purchaser provides:

“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject under the title of Conventional Obligations. It may, according to circumstances give rise to the redhibition or to the reduction of the price and to damages in favor of the defendant.”

Therefore, if defendant’s charge is true, it amounts to fraud on the part of the plaintiff.

In Bevans vs. Farrell, 18 La. Ann. 232, cited in defendant’s brief, the Supreme Court in deciding a case which involved a renunciation of warranty said:

"It is not, however, necessary to charge the seller with fraud, that his knowledge of the defect of the thing sold by him should be certain. It suffices that he had good reason to suppose that the vice existed and he omits to communicate the suspicion of that fact to the (purchaser.”

The plaintiff is bound to have known the make of the machine that it had rebuilt and the qualities of feed and manufacture. The Court therefore ruled properly.

For such a purpose communications between the parties by letters, telegrams, telephone and oral conversations before or at the time of making the contract or since, are admissible, provided that same tend to establish the charge which the defendant makes in' its answer. C. C. Art. 1848.

Plaintiff’s manager and salesman in New Orleans, asked about defendant’s opportunity to examine the machine before taking it out of the box car and to its plant, stated that defendant could have examined it in the car. The evidence indicates that the machine could not have been- properly examined until it was taken out of the par, set up and tested.

Mr. Voorhies, defendant’s manager, testified that his contract with the plaintiff palled for an “American” make, of fast speed, that would manufacture both light and heavy moulding, that is, both large and small sizes.

We think the actions of the plaintiff and the correspondence tend to support the testimony of Mr. Voorhies on this subject, although denied by the plaintiff.

For the purpose of refuting the defendant’s averments that the machine delivered was not the make nor kind that had been contracted for nor would do the work which it was guaranteed to do, the plaintiff took the testimony of Mr. Green, its secretary; Mr. Brunner, its shop foreman and chief mechanic; and Mr. Hotopp, its inspector and demonstrator, in Cincinnati. These three witnesses testify that the machine shipped was a rebuilt American, as stated in the contract. They say ¡that the American company, which is the Quaker of the machine called for by the contract, combined with a number of other companies engaged in the manufacture of wood-working machinery, and that they did not know which particular member of the American Company had built this particular machine. . That the machine had been thoroughly rebuilt and tested at its factory in Cincinnati, before shipping, etc. That it had no serial number, but that their shop number for it was 3772. According to their testimony the machines made at the several factories that entered into the combination were properly designated as American makes. But their testimony on this subject is not in harmony with that of its manager and sales agent in New Orleans who made the sale and wrote the contract. According to the latter, one 'of the factories which entered into the combination with the American Company was known as the Houston Company. That after the combination, the machines which it had made were known as Houston-Americans. That the machine delivered to defendant was a Houston-American and not an American make, called for by the contract. That there is a difference between it and those properly called the American make. That the Houston-American make was not as modern as the make known as the American.

On account of defendant’s complaint about the machine not being the make called for by the contract, and of slow feed and would not make both light and heavy moulding, Mr. Vigo, plaintiff’s manager in New Orleans, sent a mechanic to inspect it. This mechanic came to Lafayette and stated that he had come to inspect the machine, that he -would get breakfast, and then return and make a test. He was not seen nor heard from any more. Mr. Vigo finally came himself to examine it. According to Mr. Voorhies, he came to defendant’s plant, and after making a casual observation he went into the office and after some discussion with him about the matter, he left, saying that he would let him hear further from him regarding the subject, but nothing came of it. Mr. Voorhies says that he then disconnected the machine and ¡put it aside. It is still in defendant’s plant.

The defendant contracted for “One rebuilt American molder,” and it is our conclusion that there is a' material difference between the make stipulated for and the Houston-American make delivered. The inference from the testimony is that the make called for by the contract is the most desirable. We are also of the opinion that the machine contracted for was a fast feed, and would manufacture both light and heavy, that is, both large and small moulding. We are satisfied that the machine delivered is a Houston-American of slow feed, and will not manufacture small sized or light mouldings. That the difference between the machine contracted for and the one delivered is such, that the machine delivered cannot be regarded as a compliance with the contract.

We are satisfied t{iat the machine delivered contained some defects but the fact that the machine is not of the make called for by the contract and is of slow feed and will not make both light and heavy moulding, is the proper ground for avoiding the sale and restoring the parties to their former position. The defendant is entitled to that under Civil Code Art. 2531, even if plaintiff did not know the fact that the machine shipped was not the make and did not have the qualities of the one contracted for. But we think the Civil Code Art. 2545 applies, because plaintiff’s manager who made the sale knew the qualities wanted, while the agents who shipped the machine knew it was not the make called for.

The contract contains a stipulation:

“That in case of rejection of the within described machinery, the undersigned shall promptly deliver it in g-od order to J. A. Fay & Egan. Co. F. O. B. cars, Cincinnati, Ohio. That a retention of the property forwarded, after 30 days from its arrival at destination shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the vendors, and a fulfillment of all its contracts of warranty expressed or implied.”

Plaintiff contends that this stipulation is the law between the parties. We do not agree with plaintiff that such is the result in this case. The doors of the courts are always open, except in cases of estoppel, for the purpose of aiding good faith in contracts, C. P. Art. 19, and to prevent fraud, C. C. Arts. 1756, 1819, 1847 and 1848. This stipulation is of ño avail against the law that: “In all cases the dissolution of a contract may be demanded by suit or by exception,” C. C. Art. 2047. And all contracts “may be avoided either by exceptions to suits brought on such contracts or by an action brought for that purpose.” C. C. Art. 1882. Code of Practice Art. 20.

The plaintiff, citing the case of Szymanski vs. Urquhart, 5 La. Ann. 491, and C. C. Art. 11 to the effect that parties “in all cases in which it is not expressly or impliedly prohibited, * * * can renounce what the law has established in their favor,” contends that the defendant has waived all defenses of the kind mentioned. In Szymanski vs. Urquhart, the defects of the sugar mill rollers were apparent upon inspection, and the seller, although he believed them good, did not warrant them, but told the plaintiff to see' for himself. The rollers were out in the open and could easily have been examined and were sold for half price. Plaintiff took them at his own risk. In this instance the machine was in a car and defendant could not examine it properly until it had been taken out of the car. Not only that, but before it was taken out, defendant was compelled to pay $523.84, also $224.21 for freight, and sign the notes sued on. This brought about rights, in defendant which did not exist in the case cited.

The plaintiff also cites Whitney Iron Works vs. Reuss, 40 La. Ann. 112, at page 120, 3 So. 500, 505, in which the Court took occasion to say that the defendant “has jotted down every break, every leak, every vibration of his machinery, and has allowed his imagination to run away with his better judgment, and magnify his ills.” We do not think such exists in the present case. The plaintiff contends that its manager and salesman in New Orleans could not, and did not, by agreeing to examine the machine at Lafayette and sending a mechanic and coming himself to do so, waive the stipulated result of retention for thirty days. We think that plaintiff’s manager and salesman who made the contract on the part of the plaintiff, stands in the place of the plaintiff, and that his act in sending a mechanic, and in going himself to examine the machine, and when after observing it, he left saying that he would let them hear further from him about the matter, waived the stipulation. But supposing otherwise, the stipulations cannot prevent defendant from availing itself of the right which the law gives, to urge in its defense, whatever it could have alleged as a cause of action.

The situation is comparable to a renunciation of warranty when it has been obtained by fraud on the part of the seller under Art. 2548.

The plaintiff filed in this court, against defendant’s demand in reconvention based on its alleged concealment as to make, quality and vices, the prescription of one year under Art. 2534, 2546. The Article 2534 does not apply because as heretofore stated, the seller had knowledge of the concealment of make and quality and did not declare same to the purchaser. The Article does not apply for the further reason that the seller, not being domiciled in the State, is shown to have remained absent before the expiration of the year following the sale. ■ And even though a-year had elapsed, that fact does not prevent a party urging as a defense whatever he may have urged as a cause of action. Code of Practice Art. 20; Civil Code Arts. 1882 and 2047; Thompson vs. Milburn, 1 Mart. (N. S.) 468; Davenport Heirs vs. Fortier, 3 Mart. (N. S.) 698; Gillespie et al. vs. Cammack et al., 3 La. Ann. 251; Ridge vs. Alter, 14 La. Ann. 869; Edwards & Kurz vs. Plaquemine Ice and Cold Storage Co., 46 La. Ann. 360, 15 So. 61.

The prescription filed by plaintiff in this Court is therefore overruled.

The defendant prays that the judgment in reconvention in its favor be increased from $748.05 to $901.88. The amount allowed in. the lower court is, we judge, by computation made up of $450.00 paid on the purchase price of the moulding machine delivered, $73.48 for belting, and $224.21 as freight. After considering defendant’s demand in this respect, we think the judgment appealed from is correct.

Judgment affirmed, plaintiff and appellant to pay the costs in both courts.