text:
    No. 13,363
    Orleans
    CAPRA v. VIOLA
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (April 27, 1931. Opinion and Decree in Supreme Court.)
    Legier, McEnery & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    M. C. Scharff and Chas.' J. Rivet, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a petitory action wherein the plaintiff seeks to be declared the owner of a small portion of ground lying at a distance of 65 feet, 2 inches and 4 lines from the corner of Royal and Kerlerec streets, and measuring 11 inches, and 4 lines front on Kerlerec street by a depth of 95 feet, 11 inches and a width in the rear of one foot, 2 inches and 7 lines. Plaintiff relied first, upon his record title and secondly pleaded prescriptions of 5, 10 and 30 .years, based upon actual physical possession by his predecessors in title for forty or more years prior to March, 1918.

The defendant, in his answer, denies the ownership of the (plaintiff, averring that he is in possession of his own property called for by his record title and further pleads prescriptions of 5, 10 and 30 years.

There was judgment in favor of plaintiff as prayed for and defendant has appealed.

It was agreed between the parties that in lieu of the introduction of various certh fied copies of the deeds, that the chain of title, giving the description of the property contained in the respective acts, together with the acquisitions and* registrations in the conveyance office, could be offered in evidence, and that copies of the various plans without the necessity of identification, in lieu of the original plans, might also be offered in evidence. ]

Plaintiff has introduced in evidence - á chain of title showing that on June 28, 1927, he acquired a lot of ground in square .154, bounded by Royal, Frenchmen, Chartres and Kerlerec streets, this city, measuring 31 feet, 4 inches and 3 lines front on Kerlerec street by a depth of 95 feet, 11 inches between two equal parallel lines, and that the lot commences at a distance of 34 feet, 10 inches from the corner of Royal and Kerlerec streets, and identifying it with a plan made by Edgar Pilie on May 29, 1901, which is annexed to an act passed in 1901, that forms a portion of the chain of title. This chain is unbroken back to 1901, but in that year there was a slight change in the description in which the measurement of the lot' was described as 31 feet, 1 inch front on Kerlerec street, and the act of sale referred to a plan by Geo. W. DeArmas, surveyor, dated February 19, 1889, a copy of which plan was annexed to the act, forming a portion of the chain of title. This description was retained back to 1882 with the exception that prior to 1889 no reference was made to the plan of DeArmas. Plaintiff did not introduce in evidence any chain of title prior to 1882.

. Plaintiff filed in evidence copies of three plans, the first being a survey, by Edgar Pilie, surveyor, dated May 29, 1901, which shows that improvements on the side nearest Chartres street were built on the property belonging to the plaintiff’s predecessors in title and that, its wall formed the dividing line of plaintiff’s property and defendant’s property. This plan gives the distance of plaintiff’s lot from the corner of Royal and Kerlerec streets. as 34 feet, 10 inches, and appears to cover the property claimed by the plaintiff.

The second plan was a copy of survey made, by Geo. W. DeArmas, surveyor, dated February. 19, 1889. This plan does not show the distance of the lot from the corner of Kerlerec and Royal streets, but shows the improvements constructed on the .property, and further shows that the dividing line was the wall of the improvements constructed on plaintiff’s lot and that these improvements ran practically the entire depth of the lot with the exception of a few feet in the -rear, where apparently a shed was constructed.

The third plan introduced by -the plaintiff was a .survey made by E. L. Eustis on July 6, 192.7. This plan showed the portion or strip of property in question as belonging to the plaintiff, and in the possession of the defendant.

Plaintiff also introduced in evidence the testimony of several witnesses, one of whom was Jean Ferran, the former • owner of the lot of the plaintiff and who acquired the property in 190,1' and remained in undisturbed, continuous, unequivocal possession, under title translative of property until March 21, 1918, and that the wall of improvements formed the dividing line between the lot of the plaintiff and the defendant’s property.

Plaintiff then introduced in evidence the testimony of four witnesses who testified that the improvements which were constructed on the property remained unmoved and undisturbed for more than thirty, years and were not destroyed until about March, 1918.

These improvements appear to be the same as shown on the plans of DeArmas and Pilie.

Mr. E. L. Eustis, an engineer and surveyor, also testified in behalf of the plaintiff, saying that he had made a survey of the property and had allotted the strip in question to the plaintiff because in his examination of the records, he had come to the conclusion that the plaintiff’s title covered this property and further because of ¡physical possession of the plaintiff’s authors in title for more thán forty years, as shown by the above referred to plans.

Defendant’s evidence shows that on November 4, 1910, he acquired a lot of ground in square 154 bounded by Kerlerec, Royal, Chartres and Frenchmen streets, measuring thirty feet, eleven inches and seven lines front on Kerlerec street by 95 feet, 11 inches in depth. He also introduced in evidence an unbroken chain of title showing a title under the same description back to 1866.

Defendant further introduced in evidence a plan by J. W. Seghers, deputy city surveyor, dated August 16, 1927, which gives the same measurement for the frontage of the defendant’s, property but a difference of one inch more as to its depth according to actual survey.

Defendant and his son testified that the old building, which was located on both lots so that the middle wall formed the dividing line between the. properties, was destroyed in March, 1918, and that the present fence was erected shortly thereafter on the same line as the line of the former division wail.

There are two questions presented to the court, first, whether the plaintiff has successfully borne the burden imposed upon him in a petitory action of establishing his superior record title to the property and if not, secondly, whether the plaintiff has acquired a prescriptive title.

The law is plain that the burden is upon the plaintiff to establish or prove a superior record title to the property and he cannot depend upon the weakness of the defendant’s title to the property. Boiron et al. v. Lock Moore & Co., Ltd., et al., 165 La. 57, 115 So. 366; City of New Orleans v. Union Lumber Co., 145 La. 476, 82 So. 588; Glover v. Haley, 118 La. 649, 43 So. 265.

It is evident that there is a conflict between the titles. It is apparent that the common ancestor sold more land than he owned, because the plaintiff claims he has not all of the property called for by his title and the defendant claims that he is only in possession of the property called for by his definitive title. If the plaintiff has a better title to any part of the property owned by the defendant it can only be by purchase from a common ancestor. However, piaintif has failed to trace the title to a common ancestor, has failed to establish who the common ancestor was or when he parted with the title under which plaintiff claims. But even if the plaintiff had traced the title to a common ancestor and had shown that he had acquired first, there would yet be a doubt as to his right to prevail over the defendant, as the plaintiffs chain of title calls for an uncertain front measurement, whereas -the defendant’s chain of title is for a fixed front measurement. The plaintiff’s chain of title prior to 1901 shows a front measurement of “31 feet, 1 inch, more or less.” The defendant’s title has always been for 30 feet, 10 inches and 7 lines front on Kerlerec street, as far back as 1866. If the plaintiff’s title is the only one of the two coming from a common ancestor containing the words ‘‘more or less” it would be obvious that the common ancestor intended to impose upon the plaintiff’s lot any discrepancy in the measurement.

We conclude that the plaintiff has failed to prove or establish a superior record title to the property in question.

But, says counsel for the plaintiff, even conceding that plaintiff has failed to prove a record title to the property in question, he has acquired it hy virtue of prescriptiqn of 10 and 30 years which he pleaded. Defendant counters by saying that this is not permissible in a (petitory action, where defendant is in possession and claiming under a definitive title. It is noted that by his petition, plaintiff seeks to oppose to the defendant’s record title a plea of prescription, where the defendant is in possession of the property under a title translative of the property.

In the case of Waddill v. Walton et al., 42 La. Ann. 763, 7 So. 737, 738, the Supreme Court said:

“The effort of the plaintiff in a petitory action to sustain his title by a plea of prescription against any attack thereon by the defendants in possession, cannot be countenanced'. The plaintiff has cited no precedent for such a reversal of the ordinary principles of pleading and of prescription, and we shall not establish one. .
“We have maintained the prescriptions of three years and of five years in favor of . tax purchasers in possession, as a shield against actions by former owners to invalidate such titles, and to oust them from possession. But when the holders cf such titles, having never obtained possession, assume - the character of petitory plaintiffs and seek to oust the former owners, whose possession has never been divested, they must establish their title unaided by such prescriptions.
“Defendants have brought no action to invalidate plaintiff’s tax-title.
“They are simply defending their own possession and title against an attack made by him. He must submit to the burden imposed on every petitory plaintiff of showing a title, not merely prima facie, but absolutely good.”

■ In the case of Lambert v. Craig, 45 La. Ann. 1109, 13 So. 701, the Supreme Court quoted from Waddill v. Walton, supra, and again held that the effort of a plaintiff in a petitory action to sustain his title by a plea of prescription against a defendant in possession under title,- could not be countenanced.

This appears to be the situation here. The plaintiff claims title to a part of defendant’s property. Defendant has interposed as a bar to plaintiff’s .demand a-record title under a chain running as far back as 1866. Plaintiff seeks to oppose to this' title some prescriptive advantage which he alleges existed in his ancestors in title. We conclude that a plaintiff in a petitory action cannot defeat defendant’s supertitle by pleas of prescription where defendant is in possession. But, counsel for plaintiff says that the doctrine of the two above cases is confined to tax sales. An examination of the cases shows that they were both petitory actions and nothing is said by the court to limit the principle of law to tax titles or sales.

In view of the above opinion it is unnecessary to discuss the evidence as to prescription.

Counsel for plaintiff has referred us to the case of Bruton v. Braselton, 157 La. 64, 101 So. 873.

We do not find that case in point because the question presented here was not raised in that case and the language which counsel for plaintiff has pointed out to the effect that plaintiff in that case had failed to establish title to the property, “unless plaintiff has acquired title by the prescription of ten years acquirendi causa set up in aid of her title” is obiter dictum.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment in favor of the defendant, dismissing plaintiff’s suit at his cost.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3110
    Second Circuit (Second Division)
    MERCER v. DAMBLY
    (April 9, 1931. Opinion and Decree.)
    (May 7, 1931. Rehearing Refused.)
    Byron A. Irwin, of Shreveport, attorney for plaintiff, appellee.
    B. F. Roberts, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

This is a suit for the recovery of $400 as commission for alleged services performed by plaintiff, a real estate broker, for defendant, growing out of defendant’s listing with plaintiff for sale a certain tract of land belonging to defendant. From a judgment in favor of plaintiff, defendant has appealed.

The evidence shows that on April 22, 1926, ■ defendant listed with plaintiff for sale, on one of his regular written blank forms used for that purpose, 160 acres of land at $75 per acre, on terms of one-third cash and the balance in three equal annuál payments at 8 per cent interest; the time in which plaintiff was to have to make the sale was ten days. The ten days expired without any sale being made, although plaintiff made considerable effort to sell, and incurred some expense in that connection. Thereafter plaintiff, with the verbal consent of defendant, continued his efforts to sell the property. After some few weeks of effort, plaintif, not being able to get an offer at $75 per acre, suggested to defendant he might be able to sell at $62.50 per acre, and that he would like to try to sell at that price. Defendant states he told plaintiff to see what he could do, expressing his willingness to let plaintiff sell at that price.

Plaintiff .testified he tried to make a sale at $62.50 per acre and failed; that then he consulted with defendant and told him he could get $50 an acre, and requested permission from defendant to sell at that price, and on the same terms already authorized. He says defendant did not at that time agree, but that in a day or two he did agree to it and told plaintiff to go ahead and. close out the sale at that price. Plaintiff then saw Mr. Phillips, his prospective purchaser, and the latter agreed to purchase at that price and those terms.

Mr. Phillips was the man to whom plaintiff had been trying to sell the property. Defendant denies he ever agreed to let plaintiff sell his property at $50 per acre, “only, or unless it was absolutely necessary.”

Defendant a little later in his testimony said he would not consider $50 an acre, “unless it was a last resort, I didn’t want to take $50.00, did not think it was enough.” He admits he was hard-pressed for cash at the time; that he needed the money, and had it not been for that- condition he would not have sold his property at all. He admits Mr. Mercer advised him that he had found a purchaser, namely, Mr. Phillips, at $50 an acre.

The testimony shows that plaintiff and defendant, and Mr. Phillips, the prospective purchaser, then had several consultations regarding closing out a sale at $50 an acre. Mr. Phillips drew up a contract for the sale in which he specified the deferred payments to hear .7 per cent interest.' Defendant objected to the rate of interest because he said he would be unable to cash the notes unless they bore 8 per cent interest. Plaintiff conferred with Mr. Phillips, who agreed to pay 8 per cent, and the contract was changed to 8 per cent. Defendant, according to the testimony of plaintiff and Mr. Phillips, agreed to sell on those terms arid promised to sign the contract, saying he had left his duplicate of the contract at his home at the time, but would sign it and return it the next day. This he did not; do. Defendant admits receiving the contraqt and taking it home with him, but denies he ever agreed to sign it. He admits conversing about putting a clause in the deed providing that he was to receive $150 an acre in event oil should be discovered on the land within a certain time. His testimony regarding conversations. and agreements as to the contract, terms, etc., appeared to be evasive, hesitating, not being able to remember things which apparently He should remember as well as other things he testifies about, in, which his memory appears to be good. -He permitted all these negotiations to go forward toward a consummation of the sale in a manner which would indicate he must have given his consent to what was being done, all of- which led plaintiff and his. prospect to understand and believe defendant was going to go through with the deal.

The testimony shows. Mr. Phillips was ready, willing, and able to purchase the property and to comply with the terms set forth. He came to every change in the terms that defendant suggested and demanded, even agreeing at last to cash the notes himself'and relieve' defendant from having to go to the trouble of cashing them at the bank.

It developed that during the last few days these negotiations were being carried on, defendant had begun negotiations with another party on his own initiative for the sale to him, and in a very short time thereafter did sell to this party at a much larger sum.

The testimony shows conclusively, we think, that defendant, while doing so reluctantly, did agree.and consent to accept the price offered by Mr. Phillips and the terms finally arrived at, doing so for the reason, the most important reason being that he was in much- need of cash money and was willing to accept that price, thinking at the time it was the best that could be done. Then, later, he found another person who offered to pay more, and in disregard of his obligations to sell to plaintiff’s acquired purchaser, sold to the other party. The evidence shows conclusively that plaintiff procured a purchaser who was able, willing, and ready to purchase, for the price and upon the terms verbally agreed upon by defendant. Under these circumstances, defendant is liable.

The lower court, evidently thinking the evidence warranted plaintiff’s right to recover, gave judgment accordingly. This court is of the same opinion; therefore, the judgment of the lower court .is affirmed.


author: STEPHENS, J.

text:
    No. 3009
    Second Circuit (Second Division)
    FETZER v. HILLIARD
    (April 9, 1931. Opinion and Decree.)

      (No Syllabus)
    Thigpen, Herold & Cousin, of Shreveport, attorneys for plaintiff, appellee.
    Clifton F. Davis, of Shreveport, attorney for defendant, appellant.
   STEPHENS, J.

This is a possessory action in which judgment was rendered in favor of plaintiff, recognizing him to be in lawful possession, as owner, of all the property known as the Fetzer Place, in section 4, township 17 north, range 14 west, in Caddo parish, -La.; said Fetzer Place extending to and being bounded by the waters of Cross Lake.

Permanent writs of injunction were issued, restraining the defendant from trespassing upon or in any manner invading the peaceful possession of the plaintiff.

Appeals both suspensive and devolutive were granted the defendant.

No appearances were made by counsel at the trial on appeal, and we have been informed that, due to subsequent develop.ments, the question as now presented is merely a moot one.

A review of the record and the law applicable to the facts therein developed, leads us to the conclusion that the judgment as rendered by the district court is correct.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


author: DREW, J

text:
    No. 3788
    Second Circuit
    MONROE GROCER CO. v. BARRON
    (May 20, 1931. Opinion and Decree.)
    J. W. Elder, of Ruston, attorney for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendant, appellant.
   DREW, J

Plaintiff sued on open account, claiming a balance due of $345.52, with 5 per cent per annum interest from judicial demand, alleging that between the dates of October 1, 1927, and November 30, 1928, it sold and delivered to defendant goods, wares, and merchandise amounting to $2647.03, upon which there had been paid the sum of $2301.51, as shown by attached itemized account, leaving the balance due and claimed herein. Plaintiff alleged amicable demand and prays for judgment accordingly.

Defendant answered pleading a general denial. There was judgment in the lower court for plaintiff in the sum of $232.69, with 5 per cent interest per annum on each invoice or item of the account sued on from the date each was due until paid. Defendant has appealed from this judgment.

The manager of the Ruston branch of plaintiff’s business testified to the correctness of the account and that he was familiar with each and every item of the account; that the balance due, as shown by the account, was correct.

Defendant offered in evidence a check for a greater amount than claimed by plaintiff, which he contends was in full payment of all he owed plaintiff at the time. Payment is a special plea and must be pleaded before proof can be offered thereon. However, plaintiff’s manager clearly explains that the check offered by defendant, together with two other checks of defendant, were in payment of -his account with plaintiff up to October 1, 1927, the beginning of the account sued on. If we should consider the plea of payment, it is an admission of the correctness of the account. Defendant at no place in his testimony denies that he received the goods charged to him, neither does he com plain of the price charged. He does complain of an interest charge of 8 per cent, instead of 5 per cent. The lower court sustained his contention in this respect and disallowed the interest claim of 8 per cent, that went towards making up the amount of the claim sued on.

Defendant urges in this court that plaintiff failed to prove its claim for the reason that plaintiff’s witness was testifying from information received from plaintiff’s books. No doubt he refreshed his memory from the books and shipping records of his company, as he testified to, but he positively testified that the account was correct and that defendant had never made any complaint about it and that defendant told him that if he had not sued, he would have paid the account, but since plaintiff had sued him, he was going to try to beat him.

The court said in the case of Horton v. Haralson et al., 130 La. 100, 57 So. 643:

“In a suit on open accounts, where the witnesses refresh their memories by the books, and the general trend of the busi-' ness shows that the goods have been sold and delivered, it is not necessary to prove the actual delivery of each and every item. The testimony made out at least prima facie proof, and it was then incumbent upon the defendants to show wherein the proof was insufficient.”

The account was properly proved and! the only. defense made by defendant is that he had paid the account, although he did not plead payment. His defense has ■' failed and.the judgment of the lower court is correct. ’ It is therefore ordered, adjudged and decreed that the. judgment of the lower court be affirmed, with all costs.


text:
    No. 2940
    Second Circuit
    SECURITY FINANCE CO. v. L. S. EDMONDS & CO., INC.
    (April 9, 1931. Opinion and Decree.)

      W. C. Boone, of Homer, attorney for plaintiff, appellant.
    Atkins & Meadors, of Homer, áttorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff has sued to recover on six promissory notes alleged to have been executed by defendant in connection With, and as representing, the purchase price of three Yictrolas and twelve Victrola records sold to defendant by the Brenard Manufacturing Company, on August 28, 1923. Plaintiff alleges it purchased the notes from the Brenard Manufacturing Company for a valuable consideration, before maturity, without notice, and that it is the holder and owner of the notes in good faith.

Defendant, answering, makes a general denial of liability, and, further, answering, makes the following special defense in paragraph six of its answer:

“Defendant, further answering, shows the court that the notes sued on were signed by one E. L. Edmonds, who, at the time of same was neither an officer of its corporation nor authorized or empowered in any way to sign its name to said notes, and that the only connection B. L. Edmonds had .with it at the time of said signing of said notes was as a clerk, and, as such he had no authority, either express or implied, to bind it in any way to any kind of obligation and especially the kind herein sued on; and that defendant has never ratified or confirmed in any way the said unauthorized act of said E. L. Edmonds.”

. From a judgment rejecting plaintiff’s demands, plaintiff has appealed.

The testimony shows that the Brenard Manufacturing Company is' domiciled in Iowa City, Iowa, and is engaged, among other things possibly, in the business of selling at wholesale Yictrolas and Yictrola records; that its salesman called upon Mr.' L. S. Edmonds, the manager of and buyer for defendant company, at its place of business at Lisbon, in Claiborne parish, Louisiana, on the morning of August 28, 1923, and spent the greater portion of the forenoon trying to sell Mr. Edmonds a line of his merchandise. Mr. Edmonds refused to buy. At noon, Mr. Edmonds left the store and went home to dinner, leaving his young brother, Mr. E. L. Edmonds, in charge of the store. The younger Edmonds, according to the testimony, was about 18 or 19 years of age, and was employed as a clerk in the store at the time.

During the noon, hour, in the absence of the elder brother, the salesman approached young Mr. Edmonds, renewed his efforts to sell the defendant through him, and succeeded. An order was signed for three Victrolas and twelve Victrola records, at a total price of $422. The order given was signed in the following manner:

“L. S. Edmonds & Company,
By E. L. Edmonds, Authorized Buyer.’’
He signed the six notes:
“L. S. Edmonds & Company,
By E. L. Edmonds.”

The first five notes executed to represent the purchase price were for $80 each, and the- last or sixth note, for $20. They are dated August 28, 1923, made payable to. the Brenard Manufacturing Company, and -mature monthly. The first note was made to fall due two months after date. In event of default in payment, they stipulated that a reasonable attorney’s fee should be paid by the maker. No interest is mentioned, but plaintiff prays for interest at the rate of 5 per cent per annum from December 1, 1923. The notes appear to have .been,regularly endorsed by the Brenard Manufacturing Company, over to the Security Finance Company, the date, however, not being shown.

Mr. L. S. Edmonds testified that when he returned to the store .from lunch, the salesman had left. Within a few days the goods, arrived.. .He did not know what they consisted of until they were opened, but upon finding what they were he inquired of his brother, E. L. Edmonds, and was told all about the transaction, as outlined above. Mr. L. S. Edmonds testifies that this was the first he 'knew about it; that he did not authorize his young, brother to order the goods, and that it was wholly without his knowledge and consent. This, as well as all the other evidence on this point, clearly indicates that this purchase was, in fact, unauthorized by defendant company, and was without the knowledge and consent of its responsible management.

Defendant contends that it never ratified this unauthorized purchase. Mr. L. S. Edmonds testifies that he made no effort to sell the goods, but he admits having held the goods until January 18, 1924, or for more than four months, when he returned the three Victrolas to the Brenard Manufacturing Company, but kept the twelve ■Victrola records. In his letter advising that the Victrolas were being returned, he stated that he was keeping the records and was willing to pay for them. He testifies that within a few days after the goods arrived at his store, he wrote the Brenard Manufacturing Company refusing to keep the goods and advising the company of the fact that the goods had been ordered without the knowledge and consent of his company, and that the goods were being held subject to the Brenard Manufacturing Company’s orders. He offered in evidence what he says is a carbon copy of the letter which he wrote on that occasion. This carbon copy, dated . September 8, 1923, reads as follows;

“I have received ■ some Victrolas that Í knew nothing about until they arrived at the house; now the man that bought these Victrolas hadn’t told me anything about buying them and .1 am holding them at your request. Hoping to hear from you by return mail.” N

Mr. Edmonds further testifies that he did not receive any reply to the above letter, and he wrote another about thirty days later, in which he again called their attention to the matter, and wanted to send the goods back. This second letter is dated October 1, 1923, and reads as follows:

“I wrote some thirty days ago about 'the Victrolas, and I have not received any reply as to what to do with the Victrolas.
“I have the Victrolas here and I want ; to know what to do with them. I haven’t tried to sell the Victrolas because I didn’t buy them and I feel that I am not responsible for them, tho’ if you will advise me what to do with them I would be glad to help you.
“I will keep the Victrolas here till you tell me what to do with them. Let me hear from you about this matter at once.”

Mr. Edmonds makes no mention in either of these letters about the records, which constituted a part of the order. Apparently he was satisfied with the records and was willing to keep and did keep them, for, in his next letter, dated January 18, 1924, he states that:

‘‘being unable to sell your machines we' are to day returning the same by freight. We are keeping the records, which we are willing to pay for.”

'This letter was' offered by plaintiff for the purpose of showing that defendant had, in fact, been trying to sell the goods, as well as to show that defendant retained part of them, and had thereby ratified the original purchase. Mr. Edmonds admits that he wrote this letter.

Mr. Loveland, testifying for plaintiff, says he is a member of the firm of the Brenard Manufacturing Company, and that at the time the order was received he had charge of the filling of all orders which came to their office, and that he conducted all the correspondence for his company, both at that time and since. His company, he said, never received the letters which Mr. Edmonds testifies he wrote on September 8, and October '1, 1923. He testifies that the first intimation his company received from defendant company that the order for these goods was not satisfactory, or that defendant wanted to return the goods, was • the letter of January 18, 1924, quoted from above. Mr. Loveland testifies that when his company received this letter of January 18, he replied, his letter in reply being dated January 23, 1924, copy of which was offered by plaintiff. No reference is made in this reply to any previous advice or complaint having been received from plaintiff. The tone of this letter indicates that no notice had before been given the Brenard Manufacturing "Company of defendant’s intention to disavow the purchase. Correspondence offered by plaintiff indicated that the Brenard Manufacturing Company had been offering suggestions tending to enable defendant company to sell the merchandise in question. According to this correspondence, there had been considerable Communications between the two companies in none of which was any reference made to a repudiation of the order given, by either party. However, the young man, Mr. E. L. Edmonds, testifies that he alone, and without the knowledge of the other member of the company, had been carrying on -this correspondence. He had initiated the transaction, he said, and thought he would carry it through without letting any one else know anything about it. This may be true, but it certainly had the effect of creating the impression upon the Brenard Manufacturing Company that the sale was entirely satisfactory with the defendant company. Also it served to form the basis of showing good faith on the part of the Brenard Manufacturing Company in its dealings with defendant company after the order was given, even-if its salesman had not been in good faith in taking the order from this young man.

The contents of the letter of January 18, do not correspond, in language, spelling and other features with the carbon copies dated September 9 and October 1. In the January letter, the inability to sell the Victrolas was stressed. This indicates that an effort had been made to sell them. In the letters he claims to have written previous to that time, it was stated that they were being held subject to the orders of the Brenard Manufacturing Company. In view of these inconsistencies, and the testimony of Mr. Loveland, that his company' never did receive the letters indicated by the two carbon copies, a grave doubt is raised as to whether these letters were, in fact, ever actually dispatched. Be that as it may, we think the letter of January 18 was the first letter written by Mr. L. S. Edmonds ever received by the Brenard Manufacturing Company refusing to retain the merchandise. The defendant company, it is clear, had, in fact, been trying to sell these goods in the meantime. That being true, defendant, we think, waited too long to disaffirm the purchase. The- action of defendant in retaining the merchandise from shortly after August 28, 1923, until January 18, 1924, or more than four months, and then returning a part of the goods because it had been unable to sell the merchandise, certainly implied a consent to the purchase, even though the purchase was unauthorized.

Article 1816 of the Civil Code provides:

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. Tq receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. * * *”

In Clark & Marshall on Corporations, page 2197, the law applicable to a similar state of facts is laid down as follows:

“It is well settled," in most jurisdictions, that if an officer or agent of a corporation acquires or possesses knowledge of facts, in the course of his employment, and as to matters which are in the scope of his authority, his knowledge is imputable to the corporation.”

We think Mr. L. S. Edmonds was such an officer.

Aside from the reasons above stated, there is another reason why defendant has failed to establish that it disaffirmed the purchase of the merchandise embraced in the order given, and that is, the defendant retained part of the merchandise.

Giving full credence to the letters of September and October, Mr. Edmonds makes no reference therein to those twelve records. The only subject about which he wrote was the Yictrolas and, in reading these letters, one would infer that the records,were satisfactory. In fact, in one of the letters, Mr. Edmonds specifically States that he is keeping the records and is willing to pay for them. Under well settled jurisprudence, such an act is equivalent to a ratification of 'an unauthorized contract. The purchase cannot be revoked in part and ratified in part. One cannot affirm what is to his advantage and reject what is not. In the case of Advance Thresher Co. v. Roger, 123 La. 1067, 49 So. 709, the court, on this point, observes:

“The retention of a part of the goods acts as a ratification of the unauthorized purchase of said goods.”

And to the same effect is the principle announced in S. Herbert Golden Co. v. Sternberg, 10 Orleans App. 293:

“Where defendant keeps goods purchased for his account by an unauthorized person, the vendor may, at his option, treat such action as a conversion or as a ratification.”

And in Johnson v. Carrere, 45 La. Ann. 847, 13 So. 195, the court said:

“A retention of a part of the goods acts as a ratification of the unauthorized purchase of said goods.”

In view of the evidence, and the law applicable thereto, this court is of the opinion that defendant, in legal effect, ratified the purchase. The evidence shows that plaintiff acquired the notes sued on in due course, and that it is the holder and owner cf same in good faith.

The judgment of the lower court will therefore be reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff,' the Finance Security Company, and against the defendant, L. S. Edmonds & Company, Incorporated, in the sum of $422, together with 5 per cent interest per annum on said amount from December 1, 1923, until paid. The demand for attorney’s fee is rejected for want of proof to establish same.

It is further ordered that defendant pay the costs of both courts.


author: WESTERFIELD, J.

text:
    No. 11,754
    Orleans
    CONNOLLY v. CARDNO ET AL.
    (March 23, 1931. Opinion and Decree.)
    (April 13, 1931. Rehearing Refused.)
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Harold A. Moise, of New Orleans, attorney for. defendants, appellees.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

. The petition alleges that Stephen J. Connolly, plaintiff, is the duly appointed and qualified administrator of the succession of Mrs. Catherine .Kata Murphy, widow of Stephen J.. Connolly; that Mrs. Julia Connolly Cardno, daughter of the deceased, Mrs. Connolly, has in her possession a passbook of the Reliance Homestead Association of this city, calling for the sum of $1,100; that Mrs. Cardno pretends that the money belongs to her by reason of a donation made to her by her mother in her lifetime; that the homestead refuses to surrender the money to petitioner upon the ground that Mrs. . Cardno’s consent is necessary, and Mrs. Cardno withholds her consent; that Mrs. Cardno has no right, title, or interest' in the money on deposit with the Reliance Homestead, which money has always- belonged to the decedent and which should be paid over to petitioner in his capacity as administrator. The prayer is for a judgment against Mrs. Cardno and the homestead decreeing the monéy to be the property of the succession of Mrs. Connolly and ordering it paid over on his demand; otherwise that there be judgment for $1,100 in his favor as administrator.

Both defendants filed an answer to plaintiff’s petition and thereafter an exception of no cause or right of action.

The ground on which the exception is based is that the administrator is without standing to question the validity of a donation inter vivos or mortis causa which can only be attacked, by forced heirs or their assigns. Article 1504, Rev. Civ. Code, provides:

“On the death of the donor or testator, the reduction of the donation, whetüer inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns; neither the donees, legatees, nor creditors ■ of the ■ deceased can require that reduction nor avail themselves of it.” See Peter O’Neal, Administrator, v. Janes Oates, 8 La. Ann. 78.

It seems to us that the action of the trial court in maintaining the exception of no right of action was,' under the plain provisions of the Code, correct. We have been referred to no authority to the contrary; consequently, and for the reasons herein assigned, the judgment appealed from is affirmed.


text:
    No. 13,438
    Orleans
    McINTYRE v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD (MAGNOLIA CAMP No. 58)
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (May 25, 1931. Opinion and Decree in Supreme Court.)
    Stanley McDermott, Morris B. Redmann, of New Orleans, attorneys for plaintiff, appellant.
    A. B. Booth, Jr., of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff appeals from a judgment in- favor of defendant maintaining an exception to citation and dismissing her suit.

The petition alleges that plaintiff is the beneficiary in a policy, of insurance issued by the defendant fraternal order in the sum of $1,500 on the life of her deceased husband. It is further alleged that the defendant is a- foreign corporation doing business in this city without any known domicile- or representative here, and without having designated an agent upon whom service of process can be made; that, considering these facts, service is prayed for •“upon the Secretary of State and the proper officers of Magnolia Camp No. 58 in New Orleans.” Citation issued in accordance with the prayer of the petition, and the defendant was ordered to answer within the usual delay of ten days. Two exceptions. were filed, the first leveled at the service upon the local officers of Magnolia Camp No. 58- upon the ground that it was a subordinate lodge of the defendant fraternal order and without authority to represent defendant in the suit. This exception was maintained" and no appeal taken by plaintiff, who, in brief, acknowledges the correctness of the court’s ruling in this respect.

The second exception attacked the service upon the secretary of state upon the ground that “the citation required your defendant, a foreign! corporation and a fraternal beneficial society, to file its. answer, pleadings, or defense in less than thirty days from the date of mailing a copy of such service by the Secretary of State to said defendant.” After a hearing, this exception, upon the authority of section 17 of Act No. 256 of 1912, was maintained, and plaintiff’s suit dismissed. Prom this judgment plaintiff has appealed.

Appellant contends, that the judgment appealed from should be reversed, because, among other reasons, section 17 of Act No. 256 of 1912 is unconstitutional, in that it is violative of article 3 of section 16 of the Constitution of 1921, to the effect that “every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.”

The title of Act No. 256 of 1912 reads as follows:

' “An Act to amend and re-enact Act No. 115 of 1906 entitled ‘An Act to provide for, the organization, admission and regulation of Associations transacting the business of life, accident, sick benefit or physical disability insurance on the fraternal plan, and to fix penalties for the violation of this Act, and to repeal all laws in conflict with the provisions of this Act.’ ”

Section 17 of the act reads as. follows:

“Be it further enacted, etc., That every society, whether domestic or foreign, now transacting business in' this State shall, within thirty days- after the passage of this Act, and every such society hereafter applying for admission, shall, before being licensed, appoint in writing the Secretary of State and his successors in "office to be its true and lawful attorney, upon whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process against it which is served upon such attorney shall be of the same legal force and validity as if served upon . the society and that the authority shall continue in force so long as any liability remains outstanding in this State.
“Copies of such appointment, certified by said Secretary of State, shall be deemed sufficient evidence thereof and shall be admitted in' evidence with the same force and effect as the original thereof might be admitted. Service shall only be made upon such attorney, must be made in duplicate upon the Secretary of State, or in his absence upon the person in charge of his office, and shall be deemed sufficient service upon such society; provided, however, that no súch service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading or defense in less than thirty days from the date of mailing the copy of such service to such society. When legal process against any such, society is served upon said Secretary of State he shall forthwith forward by registered mail one of the duplicate copies prepaid and directed to its "secretary or corresponding officer. Legal process shall not be served upon any such" society except in the manner provided therein.”

The alleged constitutional incompatibility of section 17 is said to consist in the -| change which it purports to make in the procedural law of this state without proper declaration of such intention in its title.

In defending this section, opposing counsel direct our attention to the fact that the acty of 1912 is an amending act, as appears from the title itself, where it is declared to be “An Act to amend and reenact Act No. 115 of 1906,” and that the title of an amending act sufficiently states its object by a declaration of intention to amend an existing statute. State of Louisiana v. Brown, 41 La. Ann. 771, 6 So. 638. In this - case, however, the title of the act which it is proposed to amend is repeated in full in the amending statute. Consequently there is no need to refer to the title of the original act to supply any constitutional delinquency, since the title of the original act is repeated in the amending act' and the situation is the same as though the act under consideration was an original and not an amendatory act. It is further contended that the title of a law is not to be strictly or technically interpreted, and, if it states the object according to the understanding of reasonable men, it satisfies reasonable requirements. (Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381); that the title need not embrace any detail of legislation contained in the act (Edwards v. Police Jury, 39 La. Ann. 855, 2 So. 804); that it need not be an index to the contents of the act (State v. Thrift Oil & Gas Co., 162 La. 165, 110 So. 188, 51 A. L. R. 261); that incidental and necessary provisions for carrying out the principal object of an act need not be stated in the title (State v. Norris, 161 La. 988, 109 So. 787); and finally, that the words “regulation of Associations transacting ’the business of life, accident, sick benefit or physical disability insurance on the'' fraternal plan,” are sufficiently suggestive of a legislative purpose to change the ordinary procedure with reference to these compa* nies;- in other words, that “regulation” is a sufficiently comprehensive term to contemplate a change in the customary methods of procedure.

At the outset, we wish to repeat what we have formerly said to the effect that, as a subordinate appellate tribunal, we have great hesitancy in holding an act unconstitutional, believing, as we do, that the most appropriate authority to pass upon the propriety of (legislative enactments is the Supreme Court of the state. Magendie v. Constable First City Court of New Orleans, 4 La. App. 718. It is. therefore with great reluctance, and only because of our conviction that the legislation under consideration in the instant case is plainly obnoxious to the constitutional provision referred to, that we have concluded to .express our opinion to this effect.

The citation in this case is in conformity with the articles of our Code of Practice (articles 179, 180), section 3, chapter 2, part 2, which proclaims the rules to be observed in the prosecution of civil actions. The procedure there established has guided the bench and bar of this state for more than a hundred years. It would seem, therefore, beyond controversy that an intention to change this procedure would require unequivocal expression in the title of an act purporting to do so.

In the very early, case of Walker v. Caldwell, 4 La. Ann. 297, the court in discussing a similar provision in the Constitution then in force, gives the history of this constitutional provision, and states that its object was to prevent abuses, in the exercise of the legislative power. Speaking of prior conditions, the court said:

“The title of an act often afforded no clue to its contents; important general provisions were found placed in acts private or local in their operation; provisions concerning matters of practice or judicial proceedings were sometimes in the same statute with matters entirely foreign to them; the result of which was that, on many important subjects, the státute law had become almost unintelligible, as they whose duty it has been to examine, or to act under it, can well testify.”

See Sullivan v. Minden Lumber Co., 135 La. 331, 65 So. 479; Municipality No. 1 v. Millaudon, 12 La. Ann. 769; Succession of White, 9 La. Ann. 233; Duverge’s Heirs v. Salter, 5 La. Ann. 94.

It is to be noted that the title of Act No. 20 of 1914, the compensation law, after expressing other objects, of the legislation, declares its purpose to he “regulating procedure for the determination of liability.”

In the case of Lavedan v. Thompson, 133 La. 882, 63 So. 389, another section of Act No. 256 of 1912, section 21, was declared to be unconstitutional with reference to the same provision of the Constitution, because that section attempted to exempt certain funds derived from the proceeds of insurance policies, from seizure under garnishment, without any reference in its title indicating such purpose. It is very clear that the last-cited case hears a close analogy to the present one,.and the considerations which resulted in a holding that that section was unconstitutional apply with equal or greater force in the instant case.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that this case ba remanded to the district court for further proceeding according to law and not inconsistent with the views herein expressed.


author: JANVIER, J.

text:
    No. 13,804
    Orleans
    FISHER v. LEVIN ET AL.
    (May 11, 1931. Opinion and Decree.)
    Thomas Tomeny, of New Orleans, attorney for plaintiff, appellee.
    Eraste Vidrine and Gus Levy, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Recovery is sought by plaintiff of a sum sufficient to compensate him for the expenses he sustained in repairing his automobile which was damaged as the result of a collision with another car owned by Morris Levin, one of the defendants, and driven at the time, by the other : defendaht,,.-Henry Johnson, acting within the scope of his; employment as an employee of Levin.

Defendants deny that the cause of the accident was the negligence of defendant Johnson, and Levin, by reconventional demand, claims from Fisher, plaintiff in the main suit, the sum of $54, being the amount expended by Levin in repairing his car.

From- a solidary judgment against the defendants for $125 on the main demand and dismissing the reconventional demand, defendants have appealed.

The scene of the accident was. the- intersection of Oak and Leonidas streets, and the time shortly before noon on a1 clear day.. There is some dispute as to whether the streets were wet.

Plaintiff, driving hisi Nash sedan on Leonidas street, approached Oak street. He either stopped or came practically to a stop before entering the intersection,' and, having looked in both- directions,. proceeded to cross. After the rear of his car had passed the center of Oak street, it was struck by the car owned by Levin and driven by Johnson, which car was proceeding up Oak street. Plaintiff’s car was struck on the right side very near its rear end.

' Since on Oak street there is a street car ; track, vehicles thereon are accorded the right of way by the city traffic ordinance.- See article 1, section 1, Ordinance : 7490, C. C. S.

Plaintiff maintains that the cause of the accident was the excessive speed at which the other car was being driven. Defendants’ counsel place the blame on plaintiff, because of his alleged failure to respect the. superior right of the car on the right of way street, contending that, since defendants.’ car was in plain view, plaintiff should not have attempted to negotiate the crossing ahead of it. Plaintiff counters with the assertion that he was justified in assuming that the other car was traveling at a normal and reasonable speed, and that, had it been so doing, he would have had ample time to cross ahead of it. As he himself puts, it:

“I noticed the Chevrolet coming down-about three-quarters of a block towards Carrollton Avenue, coming to me, and not knowing the speed he was coming, figuring it was plenty of time for me to get' over the intersection at the rate of speed I was going, and not knowing the speed that this car was coming, figuring he was going within the law and I had plenty of time to get over—if he was traveling 20 miles and hour I had plenty of time to get over.”

The evidence that the speed of defendant’s car was excessive clearly prepon- . derates, and, in this regard at least, Johnson, the driver thereof, was negligent.

It is said, however, that plaintiff was contributorily negligent, in that he did not wait for the other car to pass. As. appears from plaintiff’s statement, as quoted, lie saw the other ear, but at the time it was a considerable distance away, it was. coming towards him head-on, and he could not judge its speed. He was thus justified in assuming that it was operated at a normal speed, and since, from the point of view of a reasonable, careful driver, it appears to us that there was no apparent danger in crossing, plaintiff was not negligent in attempting to do so.

In a situation remarkably similar with which we dealt in the matter of Simpson v. Pardue and Banker, 15 La. App. 341, 131 So. 854, 855, we said:

“It must be conceded that the primary duty of avoiding the collision rested upon the plaintiff, since he was driving his car on the léss favored street. He was required to keep a lookout for vehicles on the favored street. He should have had his car under control, and should have exercised more care and caution than the driver on the favored street. However, he was not required'to wait before attempting ■ to cross until there was no vehicle in sight on thg favored or right of way street, and it was only necessary that it should appear that there was a reasonably safe opportunity to proceed. His action in crossing the intersection must be considered in the light of the surrounding circumstances, and, if the Packard, which was on the favored street, was at such a distance from the intersection as would suggest to the mind of a reasonably prudent person that the crossing might be undertaken without danger of collision, he was justified in doing so.”

Since the negligence of defendant Johnson was the proximate cause of the accident, and since plaintiff himself was not at fault, the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,539
    Orleans
    CLARK, JR., v. LOUISIANA RY. & NAV. CO.
    (April 13, 1931. Opinion and Decree.)
    (April 27, 1931. Rehearing Refused.)

      Milner & Porteous and Wm. A. Porteous, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit to recover damages for an alleged slander and also _ damages said to have resulted from the defendant refusing to deliver to the plaintiff as consignee, a shipment of cordwood.

The petition alleges that S. S. Ferguson shipped plaintiff a carload of cord-wood on February 14, 1925; that he paid a draft drawn by the 'shipper on him in the sum of $40 covering part of the purchase price of the wood; that upon the arrival of the shipment in New Orleans on February 15, 1925, defendant sought to collect charges based on 18 cords and that plaintiff tendered freight charges for 16.45 cords, the actual quantity of wood; that the defendant refused to accept the tender and to allow plaintiff to make further measurement of the wood; that plaintiff had earlier sold the wood to a, Mr. Bernard at a profit and that thereafter the defendant, between March 15th and 23d, sold the wood to some third party; that on March 1, 1925, Mr. Graham, an employee of the defendant, cursed and abused plaintiff in the presence of others and ordered him from the company’s premises causing him humiliation and embarrassment. The petition prays for damages for loss of profit from the sale of the wood; damages for loss of business with Ferguson; for the balance of the purchase price less freight charges that plaintiff would have to pay Ferguson; and also damages for the slander.

The defendant filed a plea of prescription of one year as to the claim for damages for slander setting forth that the slanderous words are alleged to have been spoken on March 1, 1925, and that suit had not been filed until July 25, 1926, and as to the other claims for damages an exception of no causé of action.

The exceptions being overruled, the defendant answered denying the alleged slanderous remarks; and denying liability as to the other claim on the ground that the car contained 18 cords of wood for which the defendant sought to collect freight charges; that the plaintiff claimed that the car only contained 16.45 cords and tendered check for that amount only; and that upon the refusal of the plaintiff' to accept delivery and pay the freight charges based on 18 cords of wood, the defendant, under written authority of the shipper, sold the wood in order to pay the freight charges.

There was judgment - in favor of the defendant dismissing plaintiff’s suit, and he has appealed.

The record shows, that the plaintiff purchased the carload of wood from Ferguson for $6.25 per cord and before delivery had sold it to Mr. Bernard for $7.50 per cord. Upon the arrival of the car plaintiff inspected its contents and came to the conclusion that the car contained 16.38 cords but tendered freight for 16.45 cords.

The inspector and weigher for the railroad, after his examination of the contents of the car, reached the conclusion that the car contained 18.31 cords. The company sought to collect freight for 18 cords which the plaintiff refused to pay and tendered an amount covering 16.45 cords. After a conference between tbe company’s official and tbe plaintiff, they were still unable to agree, with the result that on March 23d, the wood was sold to a third party on written instructions of the shipper, to cover the freight charges.

The evidence is conflicting as to how many cords of wood were in the car, but we have reached the conclusion, as our learned brother below did, that the preponderante of the evidence is in favor of the defendant that there were 18 cords of wood in the car.

We further observe that the whole difficulty could have been obviated by the plaintiff tendering the small difference of $2.25 to the defendant and making claim for refund which he refused to do. Plaintiff made no attempt to minimize his alleged loss. Under the circumstances the claim for damages on account of the shipment is denied. Tardos v. Chicago, St. Louis & New Orleans Railroad Co., 35 La. Ann. 15; Armistead v. Shreveport & Red River Valley R. R. Co., 108 La. 171, 32 So. 456; Warren v. Stoddart, 105 U. S. 225, 26 L. Ed. 1117.

As to the claim for the alleged slander, it would appear to us that under the provisions of article 3536 of the Civil Code the claim was prescribed by one year, which was properly pleaded. But, assuming that the plea was not well founded, the petition does not set forth the alleged slanderous words and the plaintiff in his testimony stated “Well, he said you Gd- this, that and the other you think you own the railroad out here? I told him, G-d-him, if he came out there I guessed we could settle it.” While the petition states that these words were spoken in the presence of others, there is nothing in the testimony of the plaintiff or the record to show that there was any one present except Mr. Graham and the plaintiff. Therefore, the alleged slanderous words would not be actionable because there would'not be any publication of them.

Further, there is nothing in the petition and record to show what the alleged slanderous words were. Hence, even if it be conceded that slanderous words were spoken, which the witness Graham denied and which the plaintiff alone asserted were spoken, there is nothing before the court. The claim for damages for slander is clearly without merit. Johnston v. Barrett, 36 La. Ann. 320; Artieta v. Artieta, 15 La. Ann. 48.

For the .reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,566
    Orleans
    DATES v. MORGAN’S LA. & TEX. R. R. & S. S. CO.
    (March 23, 1931. Opinion and Decree.)
    (April 13, 1931. Rehearing Refused.)
    (May 25, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Denegre, Leovy & Chaffe, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Treating this, appeal, which was taken in the name of Richard Dates, as authorizing our consideration of a judgment rendered against Arthur Dates, a view of the situation which, considering that no formal motion was made to dismiss 'the appeal, is perhaps the proper one, we discover from the record that there is involved in this suit a claim by Arthur Dates, against the Morgan’s Louisiana & Texas Railroad & Steamship Company originally under the Compensation Act and subsequently by supplemental pleadings under the Federal Employers’ Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 65, as amended [45 USCA secs. 51-59]), for damages alleged to have been suffered as a result of an alleged injury said to have occurred bn February 26, 1926, at a time' when the plaintiff, Dates, was employed as a laborer in connection with the repair of certain tracks of the defendant.

The allegations of the petition are to the effect that plaintiff was injured while engaged in the repair of the tracks, due to the slippery footing in the locality, which caused him to fall while picking up a jack weighing 90 pounds, and resulted in a “Diastassis of the Latissemus Dorsi muscle on the right side of his. body, that is the large flat muscle on the right side of his body just above and to the right of the groin is separated, caused by a severe strain. This condition has caused continuous pain and will require a binder to keep the rupture in place.”

The defendant admitted that plaintiff was its employee at the time of the alleged accident, but denied that any accident occurred, and, in the alternative, pleaded contributory negligence and assumption of risk.

The record discloses that plaintiff has failed to prove accidental injury. Beyond his own statement, there is nothing in the record to support his claim. The foreman in charge of the gang and a fellow employee working with plaintiff testified that they knew nothing of the alleged accident. He was treated by the defendant’s physician a few days after the date he claimed to have, been injured for illness without his mentioning any injury. He was sent to a hospital by this physician, but gave no history of accidental injury at first, and, when he later claimed to have been hurt, he was subjected to a thorough physical examination without revealing any evidence to that effect.

Our conclusion is that plaintiff has failed to establish the accident upon which his claim is based; conseq¡uently; and for the reasons, herein assigned, the judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 4014
    Second Circuit
    DANCE v. SOUTHERN SURETY CO. OF NEW YORK
    (May 20, 1931. Opinion and Decree.)
    Goff & Goff, of Arcadia, attorneys for plaintiff, appellee.
    A. S.-Drew, of Minden, attorney for defendant, appellant.
   WEBB, J.

On July 3, 1929, defendant, on a written application of same date, issued to plaintiff an accident and health insurance ¡policy, insuring plaintiff from noon, July 23, 1929, to noon, July 23, 1930, ‘‘(1) against loss or disability, as herein defined, resulting from bodily injury, effected solely through accidental means, independently and exclusively of disease, whether disease pre-exists or be after-wards contracted, and (2) against disability for sickness, independent of injury, whether injury pre-exists or be afterwards sustained, .as herein defined, and contracted by the insured after fifteen days from the date aforementioned (July 23rd, 1929), subject to all .conditions and limitations hereinafter contained,” etc.

The insured became ill on September 3, 1929, and underwent an operation for appendicitis on September 5, 1929, and, after due notice and proof, demand ’ wás made on the defendant for payment of sickness indemnity and hospital services, amounting to $225, which was refused; and plaintiff instituted the present suit to recover said amount together with an additional amount of $225, and attorneys’ fees of $100, as a penalty for the failure of defendant to pay (see Act No. 310 of 1910).

In answer defendant admitted that the policy had been issued, but denied any liability; and especially pleaded that, plaintiff knew at the time she applied for insurance and at the date the policy was issued, she was suffering from appendicitis and that she concealed such fact from the defendant, and further, that the illness which caused the disability for which indemnity was claimed resulted from the disease, appendicitis, which was contracted within fifteen days from the date of the policy and was not covered under the stipulations of the contract quoted above. On trial judgment was rendered in favor of plaintiff, as prayed for, and defendant appeals, urging that the evidence established the defense interposed and that plaintiff’s demands should have been rejected, and in any event that the evidence did not warrant any penalty being assessed against defendant.

■ Considering the defense that plaintiff knew at the time she applied for insurance, which was as stated on the same date the policy was issued, and that plaintiff concealed her condition from defendant, we do not find that the evidence established that plaintiff had appendicitis at the time of the application; but if so, the evidence conclusively establishes that plaintiff was not aware of such condition, and as much appears to be conceded by counsel for appellant, who devotes his discussion entirely to the defense that, the illness of plaintiff resulted from a disease, appendicitis, which was contracted within fifteen days from the date of the policy, and in considering the liability of defendant under the contract, we confine our discussion to that defense.

The evidence upon which appellant relies shows that plaintiff had been accustomed to have a physician examine her twice a year; that on the day following the issuance of the policy, July 24, 1929, she was examined by a physician who found that she had sub-acute appendicitis, and who said on trial of the cause that he thought the condition existing on September 3, which caused the illness of plaintiff, was a “flare-up” of the condition found on July 24. However, the evidence conclusively established that plaintiff did not experience any pain or illness at that time from such condition or until September 3, and all of the physicians agree that the condition, or inflammation of the appendix, existing on July 24, may have cleared up, or as we gather from their testimony, that the condition, or the acute inflammation of the appendix, existing on September 3, may have been entirely independent of the condition existing on July 24.

Considering the evidence as a whole, we find that the most that can be said to have been established was that the condition existing on July 24 and September 3, may have had the same pathological cause; but the evidence does not establish that the condition existing on September 3 was a continuance of the condition existing on July 24, and is not, we think, sufficient to show that the condition or inflammation of the appendix existing on September 3 was contracted or existed prior to the lapse of fifteen days from the date of the policy.

Aside from that, however, the stipulation on which appellant relies should, we think, at least be construed strictly against the insurer (Bean v. Aetna Life Ins. Co., 111 Tenn. 186, 78 S. W. 104), and, the evidence establishing that plaintiff did not experience any illness or sickness from the condition existing on July 24, and that the disease, illness, or sickness for which indemnity is claimed was first manifested after the date defendant concedes the contract was effective, we are of the opinion that defendant was liable for the disability resulting from such sickness (Cohen v. North American Life & Casualty Co., 150 Minn. 507, 185 N. W. 939; Snyder v. National Travelers’ Benefit Ass’n, 180 Iowa 1344, 164 N. W. 176), and therefore defendant was properly held liable under the contract.

Relative to the contention that the court erred in allowing the penalty, or double indemnity and attorney’s fees, under the provisions of Act No. 310 of 1910, it is conceded that the statute should be strictly construed, and that the penalty should not be allowed, unless the refusal to pay was without reason (Bank v. Employers’ Liability, 155 La. 720, 99 So. 542; Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A. L. R. 1521; Massachusetts Protective Ass’n v. Ferguson, 168 La. 271, 121 So. 863; also Workman v. Insurance Co., 2 La. 507, 22 Am. Dec. 141), and, considering the evidence which shows that the refusal of defendant to ipay within the period fixed by the statute was based upon a prior investigation which showed that plaintiff had a like disease on the day following the issuance of the policy as existed in September, from which the sickness resulted for which indemnity was claimed, we are of the opinion that the refusal of defendant to pay cannot be said to have been unreasonable, and that the penalty should not have been assessed (Cryer v. Great American Casualty Co., 7 La. App. 469).

It is therefore ordered that the judgment appealed from be amended by reducing the amount awarded from $550 to $225, and as thus amended, the judgment is affirmed; appellee to pay the cost of appeal.

DREW, J., recused.


author: McGREGOR, J.

text:
    No. 4015
    Second Circuit
    AUSTIN v. CURRIE, SHERIFF, ET AL.
    (May 20, 1931. Opinion and Decree.)

      j. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    Goff & Goff, of Arcadia, attorneys for defendants, appellants.
   McGREGOR, J.

On March 23, 1929, Arcadia Lumber Company filed a suit for $372.23, with interest and attorney’s fees against J. R. Austin, the plaintiff in the present suit. Judgment was rendered for the amount prayed for, and the defendant took a devolutive appeal to this court, which affirmed the judgment o.f the lower court. While the case was pending on appeal and before it was decided, Arcadia Lumber Company secured a writ of fieri facias, had some property seized by the sheriff and it was being advertised for sale on July 12, 1930. The notice of seizure required by article 654 of the Code of Practice was dated and s.erved on May 27, 1930. In connection with this notice of seizure there was also delivered on the same date the notice to appoint an appraiser, required by article 671 of the Code of Practice. Under the law the notice of seizure is not required to designate the date of the' sale of the property and in this instance it simply stated that certain described real estate had been seized under and by virtue of a writ of execution and would be sold to satisfy said writ and costs. Under article' 655 of the Code of Practice it is necessary that at least three days shall elapse after the notice of seizure before the beginning of the advertisement of the property for sale. In this case the sheriff immediately, on May 27, 1930, advertised the property for sale on July 5, 1930. It was discovered at once by the sheriff that it was an error to start this advertisement on May 27, the same day that the notice of seizure had been dated and served, and consequently the advertisement was cancelled and redated and republished on June 5, 1930, with the date of sale fixed for July 12, 1930. The notice to appoint an appraiser was dated and served May 27, 1930, and the date named for the appraisement was July 5, 1930, at 10 o’clock a. m. When the new advertisement was inserted in the paper and a new date set for the sale, no new notice to appoint an appraiser was served.

On July 12, 1930, the date set for the sale, the defendant in execution and plaintiff in this case, applied for and secured an order from the judge of the court ordering the plaintiff in execution and the sheriff of Bienville parish to show cause on July 22, 1930, why a preliminary ihjunetion should not issue, enjoining, restraining and prohibiting them from further proceeding with the sale of the property seized. Since the rule was not sued for until the morning of the day on which the sale was to take place, a temporary restraining order was granted, which stopped the sale as advertised.

The defendant in execution and plaintiff in injunction sought tq enjoin the sale on th)*ee grounds, viz.:

(1) That the case had been appealed to the Court of Appeal and was still pending, and that, pending the hearing of the appeal, no fieri facias or writ of execution could be issued;

(2) That no legal notice of seizure had been served;

(3) That no legal notice to appoint an appraiser had been served.

When July 22, 1930, the date set for the hearing of the rule, arrived, no action of any kind was taken. On September 15, 1930, the defendant answered the rule and, as plaintiff in reconvention, prayed for damages as provided for in article 304 of the Code of Practice in cases where the execution of a judgment is prevented by the wrongful issuance of an injunction. The case was tried on September 22, 1930, and judgment was rendered for plaintiff on September 25,. 1930. On December 18, following, a judgment was signed. The decretal portion of tbe judgment was in the following words, to-wit:

“It is therefore ordered, adjudged and decreed that there be judgment in favor of the plaintiff, J. R. Austin, and* against the defendants, perpetuating and maintaining the writ of injunction sued out herein.”

While the judgment was in favor of the plaintiff in injunction and purports to perpetuate and maintain “the writ of injunction sued out herein,” . the fact remains that no preliminary injunction was issued and the temporary restraining order issued on July 12, 1930, was never extended, but lapsed and expired on July 22, 1930.

The defendant has appealed and is asking that the judgment be reversed and that damages be granted in accordance with its reconventional demand.

OPINION

As noted in the statement of the case above, the preliminary writ of injunction was asked for on three grounds. The first two grounds appear to have been abandoned, as the attorney for the appellee does not urge them in his brief. The appeal from the judgment in the first case was devolutive only and, therefore, the plaintiff in that case had a perfect right to issue execution on its judgment without waiting for the appeal to be reached and determined by the Court of Appeal. The notice of seizure was perfectly legal and regular in every respect and conformed to all the requirements of articles 654 and 655 of the Code of Practice, and, therefore,- could not give the defendant in execution and plaintiff, in this case any right to a preliminary writ of injunction. It remains, therefore, to determine whether the notice of the sheriff to the defendant in execution to appoint an appraiser was defective or lacking in any respect. This is the only ground which counsel for plaintiff and appellee urges in support of the judgment appealed from. When the advertisement of the sale was first inserted in the newspaper on May 27, 1930, and the date of the sale was published for July 5, 1930, a notice to appoint an appraiser was served on the defendant in execution, directing him to appear in the sheriff’s office on July 5, 1930, at 10 o’clock a. m., for the purpose qf appointing an appraiser for the property under seizure. When the sheriff discovered that the advertisement could not be started until after three days had elapsed after the service of the notice of seizure, he cancelled the advertisement and began it over on June 5, 1930, and a new date of sale was fixed for July 12, 1930. This change of the date of the sale did not necessitate the issuance of a new notice of seizure, nor did it necessitate the issuance and service of another notice to appoint an appraiser for the property under seizure. The attorney for the plaintiff and appellee appears to be under the impression that the appraisement of the property must be made on the day of the sale. That is not the law, though it may be the local custom is some places. Article 671 of the Code of Practice, the law governing this case, provides:

“Ten days before proceeding to the sale of the property seized, if it consists of immovables, the sheriff shall summon the party whose effects are seized, by a written notice, delivered to him in persón, or left at his usual place of residence, 'to appear on the day, place and hour which he shall mention to him, for the purpose of naming an appraiser of. the property to be thus sold.”

The notice to appoint an appraiser, which is admitted to have been served on the plaintiff and appellee, was served more than ten days before the sale, and it named the day, place and hour. If the plaintiff did not appear at that place, day and hour, then, under the provisions of article 672 of the Code of Practice, the sheriff could proceed with the making of the appraisement. Even though the date of the sale had been advanced onq week beyond the date first fixed and advertised, the plaintiff and appellee was still bound by the notice to appear on July 5, 1930, to appoint an apraiser for the property. The judgment appealed from is wrong and will have to be reversed.

Counsel for defendant and appellant urges us to consider the demand for damages. When the rule was granted and issued on July 12, 1930, it was made returnable on July 22, 1930. In its very nature and under the express terms of the law, the temporary restraining order lapsed and expired on July 22, 1930, unless it was expressly extended by special order of the court. According to the minute entries made a part of the transcript filed on Appeal, the temporary restraining order was never at any time extended. Therefore, it lapsed and expired on July 22, 1930. On that date, the day set for the hearing of the rule, no action whatever was taken in the case. So far as any effect of the restraining order is concerned, the defendant in injunction and plaintiff in the former suit was at perfect liberty to proceed with the sale of the property under seizure. The answer to- the rule was not filed until September 15, 1930. In this answer the defendant in injunction reconvened for statutory damages as provided in article 304 of the Code of Practice. Counsel for defendant was proceeding on the theory that there was an injunction in force. As a matter of fact, the only thing before the court at that time was the question as to whether a preliminary injunction should be issued. No effort was ever made to dissolve the restraining order while it was in force. If defendant in injunction had undertaken to dissolve this temporary restraining order while it was in force, as is provided for by the statute, there might be some merit in its contention for damages. But as the record stands it appears to have acquiesced in the matter of the restraining order. Even though the restraining order lapsed and expired by limitation, the defendant took no steps to proceed with its sale or to have the plaintiff’s right to a preliminary injunction tried and determined on the date set by the order of the court or on any other early date, as it had a right to do. It is a significant fact, apparent from the record, that no injunction had ever been issued in this case and that there never was a time after July 22 when the defendant could not have proceeded with the sale of the property under seizure. It is true that the judgment said, “It is therefore ordered, adjudged and decreed that there be judgment in favor of the plaintiff, J. R. Austin, and against the defendant, perpetuating and maintaining the writ of injunction sued out herein.” But no injunction had ever been “sued out” or • issued in the case. A temporary restraining order had been issued but it expired on- July 22, 1930, and was never extended. Therefore, the only judgment that could have been properly rendered in the case, provided the evidence justified it, was .one granting a preliminary injunction, and even then the preliminary injunction should have been formally issued. In this case no injunction had been issued and the judgment as written is insufficient to serve as one.

No damages can be allowed on reversing the judgment as rendered, for this judgment does not have the force or effect of an injunction. No damages can be awarded because of the temporary restraining order for the reason that no effort was ma^de to dissolve it while it was in effect. The defendant appears to have acquiesced in it. It took no steps to dissolve it, nor did it answer the rule on the date set for that purpose, nor at all until several weeks thereafter. After the restraining order had lapsed and expired and there was nothing to restrain it, the defendant made no attempt whatever to proceed with the sale of the property under seizure, as it had a perfect right to do.

For the reasons assigned the judgment appealed from is hereby annulled and reversed, and the defendant’s demand for damages on account of the restraining order is rejected; the plaintiff and appellee to pay all the costs of both courts.


text:
    No. 3013
    Second Circuit
    HAYES GRAIN & COMMISSION CO. v. KING-DRAKE CO., INC., ET AL.
    (February 26, 1931. Opinion and Decree.)
    (April 9, 1931. Rehearing Refused.)
    (May 25, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      ■ L. K. Watkins, of Minden, attorney for plaintiff, appellee.
    Drew & Drew, of Minden, attorney for defendant,, appellant.
   WEBB, J.

In this action plaintiff, Hayes Grain & Commission Company, a corporation domiciled at Little Rock, Arkansas, where it is engaged in selling grain and mixed feed manufactured by it, alleged that it had sold on January 20, 1925, to King-Drake Company, Inc., a corporation domiciled and doing business at Minden, Louisiana, a quantity of mixed feed for future delivery; that the contract had been breached hy King-Drake Company, and plaintiff seeks to recover damages alleged to have resulted from the breach of the contract.

Plaintiff alleged that the negotiations between the parties were begun and consummated by wire on January 20;' 1925', and confirmed by a written instrument signed by both parties on that dáte, under which King-Drake Company purchased ' 100 tons of feed at the price of $51.50 per ton, and 100 tons at the price of $42 per ton, to be used by defendant by July 1, 1925, and that a carrying charge of fifty cents per ton per month would be made for "all shipments after March 1, 1925; that a portion of the feed had been shipped, . but a large proportion had not been ordered to be' shipped by defendant, and tliat defendant had failed and refused to order the shipments to be made. Plaintiff further alleged that on July 1, 1925, there was. a difference between the contract price, including carrying charges and manufacturing charges, and the market price of the feed of $1103.20, as shown by a statement marked' “B,”' annexed to the petition; that on July 8, 1925, plaintiff demanded a settlement and notified defendant.. it would. be forced to sell the feed for the account of defendant; that on September 8, 1925, plaintiff had again demanded a settlement and advised defendant that it considered the contract had been breached; and that on the latter date the difference between the contract price, including the carrying charges, was $1,302, as shown by statement “A,” annexed to the petition.

Plaintiff also alleged that the charter of the King-Drake Company, Inc., was illegal and that two of the incorporators, E. P. King and A. E. Drake, doing business under the name and style of "King-Drake Company, Incorporated,” are liable in so-lido for the damages sustained by plaintiff; and plaintiff prayed for judgment against King-Drake Company,- Inc., E. P. King and A. E. Drake in solido. for the sum of $1,103.20, with legal interest from July 1, 1925; and in the alternative for a like judgment in the sum of $1,302, with legal interest from September 8, 1925.

E. P. King and A. E. Drake filed exceptions of no cause or right of action and pleas of estoppel, and King-Drake Company, Inc., appearing .as a corporation, filed motions to strike out and elect; and under reservations of its rights in the (pleas filed, the corporation answered, denying the material allegations of plaintiff’s petition as made; and alleged that plaintiff failed to state a cause or right of action, and further, alleged that under the agreement plaintiff was not obligated to order the shipment of the feed on or before July 1, 1925, and that if .the -contract was breached, it was through the action of plaintiff. Defendant prayed that plaintiff’s demands be rejected.

On trial judgment was rendered in.favor of plaintiff and against -King-Drake, Company, Inc.,- in the sum - of $1,103.20, with legal interest from July 1, 1925, and we are informed that the exceptions and pleas filed by E. P. King and A. E. Drake were sustained and the suit as to them dismissed; and such appears to have been the case from the opinion of the court on a motion filed by King-Drake Company, Inc., for a' new trial, although the minutes do not show what if any action was taken with regard to the exceptions and pleas filed by King and Drake, and there is not in the record any judgment dismissing the suit as to them.

King-Drake Company, Inc., however, alone have appealed, and appellant urges here that the exceptions of no cause or right of action should have been sustained; that the evidence failed to establish that defendant breached the contract, and further that the evidence did not establish that plaintiff had sustained any damages.

In support of the exception of no cause or right of action, which as shown was filed with the answer, defendant contends that, under- the allegations in plaintiff’s petition, “that E. P. King and A. E. Drake, * * aoing á commercial business * * under the name and style of King-Drake Company, Inc., are commercial partners and that King-Drake Company, • Inc.; and E. P. King and A. E. Drake owed petitioner in solido, etc.,” it was sued as a commercial partnership and that the court was without authority to hold defendant liable as a corporation.

As stated, however,, plaintiff had alleged that King-Drake Company: was. a corporation, and although . plaintiff alleged that the members of the. corporation were doing business under the name of “King-Drake Company, Inc.,” such allegation is negatived by the pleadings considered as a whole, and the corporation having appeared and fiied several pleas' prior to filing the exceptions' of no cause or right of action, which was filed with the answer, and plaintiff having proved on trial that the contract was made with the corporation, defendant could not urge that it was not a party to the suit, which, as we gather, was the .basis of the exception.

The contention that the evidence failed to establish that defendant breached the contract is based on the construction of the agreement; defendant contending that the contract was evidenced by the written instrument confirming the telegrams, and that there was not any time fixed in which the feed should be ordered shipped, and that neither the telegrams nor parol evidence was admissible to show the time when the feed would be shipped.

The written instrument signed by the parties, confirming the telegrams, stated the date of shipment would be “January-February,” 1925, while the telegrams stated that the feed would “be used by July 1st.” It is conceded, however, that the date of the shipment was not restricted to January and. February, and even though the written instrument confirming the telegrams was complete in itself, we think that the telegrams would have been admissible to show the date the shipment was to be made, where the date stated in the instrument was concededly erroneous. However, the instrument signed by the parties clearly shows that it was merely a confirmation of the telegrams and the instrument was properly considered and read with the telegrams, and as read, there cannot be any doubt that the merchandise was to be ordered shipped by defendant on or before July 1st, and that such was the agreement of the parties is shown by the correspondence subsequent to the date of the order, and prior to July 1. The evidence established that defendant failed to order the greater part of the feed shipped on or before July 1, and that defendant refused to order the shipment to be made after demand. Defendant was properly held to have breached the contract, and the remaining question is whether or not plaintiff established that it had sustained any damages.

As stated, plaintiff’s primary demand for damages, which was allowed, was based on a statement which had been made up by plaintiff, showing the amount of damages claimed and the method by which plaintiff arrived at the damages sustained, which reads as follows:

“B”
Kountry Kid Feed—Contract price .................. $42.00 per ton
Carrying charge 50c ton month 4 months, March, April, May and June ......... 2.00
Manufacturing profit account inability to deliver feed as sold _______________ 2.00
$46.00
Market price July first, 1925 38.00
Loss 133 sacks undelivered $ 8.00 ton $53.20 Lumber Camp Special Feed,
contract price ........................$51.50
Carrying charge 50c ton month, 4 months, March, April, May and June .............. 2.00
Manufacturing profit account • inability to deliver feed as sold _________________ 2.00
$55.50 $1050.00
Market price July first, 1925 45.00 Loss 2000 bags (100 tons) undelivered .................................. 10.50
Total Loss ............................................$1103.20
“This is to certify that the above is a true and correct statement of loss sustained by us on contract of King-Drake Company of Minden, La.
“Hayes Grain & Commission Co.,
“By Guy Cameron, Secretary.”

There was not any reference to manufacturing profits in the agreement, and there was not any explanation of such charges, nor any evidence showing the manner in which the market value of the merchandise, as shown on the statement, was ascertained. The cost of manufacturing would have to be considered if the basis of the claim for damages was the difference between the cost of (production and the contract price (Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, 52 L. R. A. 225), but, in fixing the damage on the basis of the difference between the contract price and the market price, it is evident that the cost of manufacture must have been considered in fixing the contract price, which the agreement between the parties also shows included the cost of delivery, for which a reduction should have been made (Bartley v. City of New Orleans, 30 La. Ann. 264; Newark City Ice Co. v. Fisher (C. C. A.) 76 F. 427, 429), and, the evidence showing that plaintiff had not made a resale of the merchandise, or that the merchandise had a market price, the evidence does not sufficiently establish the loss claimed.

The record indicates, however, that plaintiff did sustain some loss from the breach of the contract, and, assuming that plaintiff will be able to show the loss in another action, we will not reject the demand, but dismiss the action as of non-suit.

It is .therefore ordered that the judgment appealed from be avoided, and that plaintiff’s suit be dismissed as of nonsuit, at plaintiff’s cost.

DREW, X, recused.