text:
    No. 9241
    Orleans
    JOHN P. GLYNN v. TYPHOON FAN COMPANY, Appellant
    (November 16, 1925, Opinion and Decree)
    (November 3, 1925, Rehearing Refused)

      (Syllabus dy the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The' finding of the trial court on matters of fact will not be disturbed unless clearly erroneous.
    Appeal from the Civil District Court, Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a suit for an account between an employer and employee. There was a re-conventional demand. The judgment of the Court below took no cognizance of the re-conventional demand.
    Defendant appealed.
    Judgment amended and affirmed recognizing the reconventional demand.
    Warren V. Miller, P. E. Edrington, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Eugene Stafford, of New Orleans, attorney for defendant, appellant.
   BELL, J.

The action in this case is, in effect, a suit for accounting between employer and employee. Plaintiff sues the defendant corporation, an absentee, for $1,937.22, claimed as commissions, etc., due him under a written contract of employment dated January 10, 1921, reading as follows:

“January 10, 1921.
“Your compensation for services rendered during the year 1921, will be as follows:
“We will pay you $1000.00 for expenses, and in addition will pay you one (1%) per cent of all money collected during the year 1921 on contracts closed during the years 1920 and 1921, in the New Orleans territory, including that territory being worked by Paul E. Elder and Jesse L. Elder.
“We will also pay you 5% of all money collected on contracts closed in New Orleans branch territory proper, including the States of Louisiana, Mississippi and that part of Alabama not included in working agreement of Paul E. Elder as well as any contracts closed by New Orleans Branch in the State of Arkansas and the Republic of Cuba and Mexico.
“It is understood and agreed that you are to be permitted to draw $300.00 per month against your earnings as an advance against your earnings.
“It is further understood and agreed that you will devote your entire time to the business and interests of the Typhoon Fan Company and shall at all times exercise due diligence and energy in promoting the interests of the Company.
“Typhoon Fan Company,
“Ernest Glantzberg,
“Accepted: President.
“John P. Glynn.”

Before hearing testimony in this matter, the trial court, evidently concluding from the pleadings and documents in the record that this suit required investigation of long and intricate accounts, appointed, ex propria motu, an expert accountant. After due consideration of the expert’s report and all testimony taken subsequently, there was judgment for plaintiff in the sum of $1,379.81, with maintenance of the writ of attachment, which had been issued. Defendant has appealed, and plaintiff, answering the appeal, prays for amendment of the judgment so as to increase same to the amount originally prayed for.

Defendant answers by admitting the contract above noted, and by averring that plaintiff’s employment thereunder was terminated on October 15, 1921, by plaintiff’s voluntary resignation, which was submitted in writing and accepted as of that date. It denies, in effect, all other allegations of the petition, and reconvenes, praying for judgment against plaintiff in the sum of $136.95, as per statement of account annexed to and made part of its demand in re-convention.

The judgment of the court a qua takes no cognizance whatever of the reconventional demand, nor has this demand been urged in any manner by appellant before this court. This case has been submitted without argument, and we note, in appellant’s brief, a prayer for reversal or, in the alternative, a reduction of the judgment appealed from. It is urged that the judgment for $1,379.81 be reduced by two items, to-wit: for commissions, amounting to $727.86, and for certain automobile expenses, amounting to $426.00 or a total of $1,189,86. This reduction, if granted, would result in an affirmance of the judgment to an extent of $189.59.

A careful examination of the expert’s report, and of the voluminous testimony and exhibits constituting the record, leads us to the conclusion that the judgment should be amended in the following respect:

The written approval given by the president of the defendant company and which was admittedly “0. K’d” my him, regarding commissions due plaintiff under previous contract for the year 1920, is conclusively against defendant's contention that plaintiff’s commission under said contract had never been verbally increased from a basis of one per cent to that of two per cent. The item representing these particular commissions and amounting to $727.86, should not therefore be deducted from the amount of the judgment. ■

As to the other item concerning automobile charges by plaintiff for disbursements which he claims were to be allowed him over and above the $1,000.00 referred to in the 1921 contract—we are of the opinion that this item should be deducted from the amount of the judgment to the extent of $452.00. The plain language of the written contract dated January 10, 1921, as well as plaintiff’s conduct in omitting, without protest, the item for automobile expenses in his weekly expense account after his attention was called to previous similar charges which he had improperly made, convinces us that, he well understood that all expenses of this nature were to be included in the One Thousand Dollar limitation placed upon his expenses for 1921.

There is no merit to plaintiff’s contention that his commission of. five per cent on $6,679.22, or the sum of $339.96, should be added to the amount of the judgment. He testifies, in part, as follows:

“The employment with the Typhoon Fan Company had become objectionable to me for many reasons, and I was only too glad to leave their service, and did so freely and agreeably, and did everything in my power to get an amicable settlement from them of what was due me.”

His letter of resignation reads as follows:

“October 5, 1921.
“Mr. Ernest Glantzberg, President,
“Typhoon Fan Company,
“New York City.
“Dear Sir:
“As I do not feel that I can be of any effective service to your Company under present conditions, I hereby beg to tender my resignation, effective October 15.
“Kindly acknowledge receipt of this letter promptly, so that I may feel free to accept other employment.
“I shall, of course, expect a full settlement of all moneys due me as of that date.
“Yours very truly,
“J. P. Glynn.”

In the light of such evidence, the trial judge was undoubtedly justified in disallowing this item for commissions claimed “on money collected on contracts closed”, after plaintiff’s services had ceased.

We conclude from the evidence above noted, that the judgment should be amended.

It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof from One Thousand Three Hundred, Seventy-nine Dollars and Eighty-one cents ($1,379.81) to Nine Hundred Twenty-seven Dollars and Eighty-one cents ($927.81), and as thus amended, let the judgment be affirmed. Cost of appeal to be borne by appellee.

Judgment amended and, as amended, affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,192
    Orleans
    VALMONT SERVICE STATION, Appellant, v. EUGENE B. AVEGNO, ET AL.
    (November 30, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Mandate—Par. 67.
    Where there is in fact an agency and that fact is concealed, the person dealing with the agent may, upon discovering the principal, proceed against the latter and not against the agent.
    Appeal from the First City Court of the City of New Orleans, Hon. W. V. Seeber, Judge.
    This is a suit for the cost of repairs made and gasoline and oil supplied to a Ford truck. There were two defendants in solido but one was not cited.
    Judgment for defendant, Avegno, and plaintiff appealed.
    Judgment reversed.
    S. J. Tennant, Jr., of New Orleans, attorney for plaintiff, appellant.
    Howell Carter, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff who conducts an automobile service station under the name of the “Valmont Service Station” brings this suit against the defendants, Kuepferle and Avegno, in solido, claiming the sum of $154.60 for repairs made and gasoline and oil supplied to a Ford truck belonging to the defendant, Avegno.

After filing his suit, plaintiff seems to have elected to hold Avegno alone for Kuepferle was not cited and the ease proceeded against Avegno. There was judgment for defendant and plaintiff has appealed.

There is no serious dispute, and certainly no reasonable contention can be made upon the record before us, that the quantum of plaintiff’s demand has not been established. There is also no question but what the repairs were made and the supplies furnished to a truck belonging to the defendant, Avegno.

The defense rests upon the contention that Kuepferle, who was the manager of a dairy business owned and conducted by the defendant, Avegno under the name of the “Elite Dairy” is alone responsible to plaintiff because plaintiff dealt only with Kuepferle without knowing he was Avegno’s agent, sending all statements of account and demands for payment to Kuepferle, in whose name the book account was kept by plaintiff. It is also contended that Avegno paid Kuepferle for all expense incurred in operating the truck and that, therefore Avegno cannot be' liable to plaintiff.

It appears that plaintiff only discovered that Avegno was the owner of the truck after the failure of Kuepferle to pay the account. The truck which bore the legend “Elite Dairy” would appear at the plaintiff’s place of business, usually driven by a son of Kuepferle, who was employed by his father, the manager of defendant’s dairy, and request supplies of . oil or gasoline or repairs which the plaintiff would supply and make charging the cost thereof to Kuepferle, whom it regarded as the owner of the truck. When the account was not paid the discovery was made that Avegno was the owner of the dairy and Kuepferle only the manager.

There is here presented the familiar case of a third person dealing with an undisclosed principal through an agent. No question can be raised as to the authority of a manager of a dairy to buy gasoline and oil for a truck belonging to and operated in the interest of the dairy, consequently, that point will not be discussed though referred to in the briefs.

The rule is settled to the effect that “where there is in fact an agency and the fact is concealed, the person dealing with the agent, may, upon discovering the principal, proceed against the latter and not against the agent”.

In Corpus Juris, Vol. 2, Yerbo Agency, page 840, we find the following:

“Undisclosed Principal—(1) In General. As has been seen in another connection, an agent who enters into contractual relations on behalf of an undisclosed principal may be held liable by the person with whom he deals, as though he himself were in fact the principal. The liability of the agent is not, however, exclusive, for, although the third person extended credit to the agent in ignorance of the fact that the latter was acting in a representative capacity, he may elect to hold the undisclosed principal when discovered, it being a firmly established rule that an undisclosed principal is bound by executory simply contracts made by the agent, and by acts done by the agent in relation thereto, within the scope of his authority and in the course of his employment, although the contract purports to be the individual contract of the agent, and although the third person had previously refused to enter into contractual relations with the principal.”

As to the claim that payment to the agent relieves the principal of his obligation to third persons, we fail to see the least merit in this contention. Third persons cannot be bound by transactions between employer and employee to which they are not a party and of which they have no knowledge.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Earl L. Mertzweiller, and against the defendant Eugene B. Avegno in the sum of $154.61, with legal interest thereon from judicial demand, and all costs.

ON APPLICATION FOR REHEARING.

This application comes too late and cannot be considered.

Under Act 16 of 1910, the application must be made within 5 days. 8 Ct. of App. 140, 154, Act 128 of 1921, regulates the practice in the City Courts alone and has no application to the Court of Appeal.


author: CLAIBORNE, J.

text:
    No. 10,217
    Orleans
    N. O. MOTOR CO., INC., v. H. KELT
    (November 16, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—-.New Trial—Par. 45.
    Act 128 of 1921 does not deny to the party against whom judgment has been rendered the right to apply for a new trial.
    2. Louisiana Digest—Laws—Par. 56.
    Repeals by implication are not favored.
    Writ of Prohibition and Mandamus on Division “C” First City Court.
    William C. McLeod, of New Orleans, attorney for relator.
   CLAIBORNE, J.

This is an application for a prohibition.

Relator avers that he is the plaintiff in the suit of N. 0. Motor Co., Inc., vs. H. Kelt, No. 128,946 of the First City Court for the Parish of Orleans; that in said suit he claimed an amount exceeding $100 and less than $300 of which said court had jurisdiction by virtue of Section 91 of Artivle VII, p. 64 of the Constitution of 1921; that said cause was tried before Hon. Wm. V. Seeber, Judge of Section C of the First City Court on June 24, 1925, when judgment was rendered in favor of plaintiff, relator herein, and signed on the same day; that on June 27,1925, after having signed said judgment, the said judge entertained a rule ordering plaintiff, relator herein, to show cause on August 12, 1925, why a new trial should not be granted; that said order was inexcess of the power granted to the judge of said City Court and was improvidently rendered; that the practice in said Courts in all suits for moneyed demands above one hundred dollars and not exceeding three hundred dollars is regulated by Act 128 of 1921, p. 332, according to which “judgment may be signed immediately after rendition, and makes no provision for the granting of a new trial after a judgment is signed; that the judgment, once signed became the property of the plaintiff-relator, subject only to the right of appeal, and that he cannot be1 deprived of it by the granting of a new trial; that on August 12th he appeared before the First City Court and there moved for the rescission of the order to show cause why a new trial should not be granted, but that his motion was there denied by the judge. Relator prays for a writ of prohibition forbidding the judge of said First City Court from proceeding any further in the hearing of said rule to show cause why a new trial should not be granted.

The judge of the First City Court has made no answer to' the application for the writ.

Section 1 of the Act of 1921 reads as follows:

“Be it enacted, etc.:
“That the manner and form of proceedings before the City Courts of this State in Cities having over 10,000 inhabitants in cases where said Court has concurrent jurisdiction with District Courts of all suits for moneyed demands above $100 and not exceeding $300, shall be governed by the general laws regulating proceedings before the District Courts, provided 1st, that delays for answering shall be three days only, Sundays and holidays excepted; 2nd, that all exceptions and answers must be filed at the same time; 3rd, that no preliminary default shall be necessary prior to judgment: and 4th, that judgments may be signed immediately after rendition; and 5th, that there shall be no right to trial by jury in such cases before said City Courts.”

It will be noted that the statute orders , that all proceedings before City Courts in cases above $100 “shall be governed by the general laws regulating proceedings before the District Courtá”. That is the rule. But the same statute provides for five exceptions only, mentioned therein viz: 1st delays for answering three days, 2nd exceptions and answers must be filed at the same time, 3rd no default necessary; 4th, judgments may be signed immediately after rendition; and 5th, no right of trial by jury.

The statute makes no other proviso or exception. It does not exclude the right to a new trial.

It follows that in all other respects the rules of practice in the Dictrict Courts shall prevail. We have no right to add another proviso or exception.

According to law relative to District Courts the Code of Practice provides: “Art. 557. The Court may revise their judgment by granting a new trial in the cases hereafter provided.”

Art. 558: “The party'who believes himself aggrieved by the judgment given against him may within three judicial days after such judgment has been rendered, pray for a new trial, which must be granted if there be no good ground for the same; provided that said new trial shall be prayed for and passed before the adjournment of Court”.

Act 247 of 1908, p.- 368 provides:

“That in all civil cases whenever the trial judge shall be of opinion that the verdict of a jury or judgment of the Court contains any error prejudicial to a party, he may at any time within three days, on motion of the party complaining set aside such verdict or judgment and allow a new trial in the cause.”

Sec. 2088 of the Revised Statutes provides “that the party against whom the judgment shall have been rendered may, within three days, pray for a new trial or appeal from the judgment”.

It will thus be seen that the general law provided for. a new trial both in the City Courts and in the District Courts.

■ To. yield to relator’s contention would lead to the unreasonable conclusion that although the Act of 1921 provides that the proceedings in the City Courts shall be governed by the laws regulating proceedings before District Courts” there would be a right to a new trial when the suit was tried and decided in the District Court, but none when it was filed in the City Court. Such a construction would be in the teeth of the Act of 1921. See Modenback vs. Van Smith, No. 8559 Orl. App., O. B. K. 60.

Act 128 of 1921 did not expressly repeal the laws relative to new trials. The only repeal relied on is by implication. Article C. C. 23 provides that “it (repeal) is implied, when the new law contains provisions contrary to, or irreconcilable with those of the former law”. Repeal by implication is not favored. State vs. Henderson, 120 La. 535, 45 South 430; State vs. Cucullu, 110 La. 1090, 35 South. 300; IV La. Dig., p. 622 S. 56. Especially in cases where the law said to be repealed is one extending relief to the party condemned.

There is no provision in the Act of 1921 contrary to the Articles of the Code, of Practice and Revised Statutes. Nor are the provisions of the two irreconcilable. They may both exist and . be applied concurrently. The right to a new trial which has existed for so many years both in the City Courts and the District Courts cannot be lightly destroyed or repealed by implication unless the implication be irresistible and the two laws cannot be enforced harmoniously. Expedition in the administration of court proceedings is devoutly to he wished, but not at the expense of the rights of litigants, however small the amount involved.

Relator points to the case of State ex rel. Mailer, 128 La. 914, 55 South. 574, where it was held that judgments from City Courts in eviction cases became executory 24 hours after rendition unless appealed from within that delay.

But the court said that Act 313 of 1908, p. 479, provides that "if the tenant does not comply with the judgment within 24 hours after the rendition of said judgment it (the litigant) shall he executed”. There was no question of new trial in that case. The only question involved was the date or time when the delay for an appeal commenced. See 8 Orl. App., 412; Audubon Hotel Co. vs. Braunig, 119 La. 1070, 44 South. 891. There is no question of appeal involved in this case.

-Act 128 of 1921 does not repeal all laws on the same subject matter, but only “all laws or parts of laws in conflict herewith”.

As we do not find that the Act of 1921 is in conflict with the Articles of the Code of Practice and Revised Statutes nor with Act 247 of 1908, the preliminary order herein issued is recalled and the writ of prohibition denied.


text:
    No. 10,227
    Orleans
    MISS LYDA BELDEN v. G. N. ROBERTS, Appellant
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Negligence—Par. 42.
    In order to recover in a damage suit plaintiff must prove that defendant was negligent and that his negligence was the cause of the accident; but proof that plaintiff himself was negligent will defeat his action.
    2. Louisiana Digest — Automobiles — Par. 4 (b).
    When two vehicles approach an intersection at approximately the same time, the one having the right of way is entitled' to proceed, and it is culpable negligence for the other to attempt to cross.

      3. Louisiana Digest—Automobiles—Par. 4 (d).
    The traffic ordinance requiring a vehicle approaching a right of way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.
    4. Louisiana Digest—Automobiles—Par. 8.
    One has a right to presume that the other will obey the traffic law.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    This is a suit for damages caused by an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Gordon Boswell and Milo B. Williams, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages caused by an automobile collision.

The plaintiff alleged that on June, 14, 1925, at 1 o’clock p. m., she was driving her Ford Sedan automobile on First street in the direction of the river; that as she approached the property line on the lake side of Prytania street she brought her automobile almost to a complete stop; that she looked and listened in both directions; that she saw no vehicles approaching, except an automobile driven by the defendant, 'which was half a block, or 150 feet, away; that she then proceeded to cross Prytania street, and had crossed the greater part of it and was in the middle of the river side track on Prytania street when defendant’s auto struck the side of her auto with terrific force, driving it against the uptown river curb of the intersection; that in the collision the plaintiff was bruised on the cheek, back, neck, arms and body; that her automobile was badly broken, the left door panel was crushed, the top demolished, windshield glass broken, fenders, running boards crumpled, right rear wheel broken and axle bent; that the removal of the car to the garage $5.00, the garage fees $2.50 per day, and the repairs $195.70, are the cost of the damages; that the automobile be reduced in value $25.00; that the cuts and bruises to plaintiff are a damage of $50.00; that the accident was caused solely by the negligence of the defendant in the following ‘particulars: First, in driving on the wrong' side of the roadway; second, in failing to yield the right of way to plaintiff’s auto which arrived at the intersection first and was crossing first; third, in approaching First street at a speed of thirty miles an hour in excess of the speed limit; and in failing to slow his car before running into plaintiff’s car which was in view for more than 150 feet, and in having defective brakes.

Defendant admitted the collision and that plaintiff did not come to a stop on reaching the intersection of Prytania street, but denied all the other allegations of the petition; further answering, the defendant alleged that the damage suffered by the plaintiff “was due solely and entirely to the negligent operation of plaintiff’s automobile, particularly in that it was not brought to a stop on reaching Prytania street; that it was being driven at a high and reckless rate of speed; that it was driven across Prytania street in utter disregard of respondent’s right of way at a time when respondent’s automobile, being driven in a careful and prudent manner, was at a dangerous proximity to the corner; and that the driver of plaintiff’s automobile did not have it under control and was not exercising a proper lookout ahead, all in violation of Traffic Ordinance No. 7490 C. C. S.

There was judgment for plaintiff for $220.70 and defendant has appealed.

In order to recover plaintiff must prove that defendant was negligent or at fault in some particular, and that his negligence was the cause of the accident; but proof that plaintiff was negligent will defeat his action.

The first charge of negligence made by plaintiff is that defendant was driving on the wrong side of the roadway.

Plaintiff swears that the defendant was going up on the downtown river side, not on the car track.

The defendant says: “I was going up on the right hand of traffic.”

The plaintiff’s testimony is weakened by the improbability of defendant driving up the river or left-hand side of the street contrary to custom and to the general law of the road and to traffic ordinances and in the way of down-town travel.

She is contradicted by her own testimony. She says:

“The accident occurred directly in the middle of my car and directly in the middle of the rail.”

Robert Belden, her brother, was in the car at the time of the accident. He says:

“Q. Where was your automobile when it was struck?
“A. Just about the second car track.
“Q. What part of your car was struck by the other car?
“A. About the motor on the left side.”

It is perfectly evident that if the defendant was driving on the river side of Prytania street, he could not have struck a car in the middle of the rail.

Second. The second charge against defendant is that he failed to yield the right of way to plaintiff who had arrived at the intersection first.

This charge is based on S. G., Sec. 7, p. 8, of the traffic ordinance which reads as : follows:

“The right of way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at -a speed beyond control, nor that they may take advantage of such right of way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right of way given applies only where two automobiles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right of way street to disregard the right of vehicles which have already entered the intersections from an intersecting street.”

The two cars approached the intersection at approximately the same time, for plaintiff’s brother says that her car was struck “just about on the second car track”, meaning when it had reached the second car track. This would place the plaintiff’s car and that of the defendant also in the middle of Prytania street. It is also alleged that the “left door panel was crushed”.

When defendant saw plaintiff issuing out of First street he had a right to believe that she would obey the ordinance and stop, or at least slacken her speed until he had passed, and thus yield defendant the right of way to which he was entitled. Huddy, p. 785.

The presumption is that every person' will perform the duty enjoined by law. Clements vs. La. Electric Light Co., 44 La. Ann. 692, 11 South. 51; Cooley Torts, 659-661.

The traffic ordinance provides:

“No motor vehicle shall turn into or cross any right of way street, as fixed in Article I, Section 9, without first coming to a full stop.” Huddy, Sec. 383, p. 373; Berry, Sec. 196, p. 199; 209 Ills. App. 499.

“An engineer has the right to assume that a person on a track will step off.” Schwartz vs. New Orleans & C. R. Co., 110 La. 534, 34 South. 667; Ford vs. Tremont Lumber Co., 123 La. 742, 49 South. 492; Saitta vs. Yazoo & M. V. R. Co., 153 La. 1099, 97 South. 261; Farrar vs. New Orleans & C. R. Co., 52 La. Ann. 417, 26 South. 995; O’Rourke vs. New Orleans City & Lake R. Co., 51 La. Ann. 755, 25 South. 323; Vanon vs. Louisiana Ry. and Navigation Co., 143 La. 1085, 79 South. 869; Nolan vs. Illinois Central Railroad Co., 145 La. 487, 82 South. 590; Schulte vs. New Orleans City & Lake R. R. Co., 44 La. Ann. 509, 10 South. 811; Abels vs. Brown, 156 La. 75, 100 South. 54.

Third. The third charge is that defendant approached First street at a speed of .thirty miles an hour, in excess of the speed limit, and in failing to slow when plaintiff’s car was in full view for a distance of 150 feet on First street.

The limit of speed fixed by the ordinance was twenty miles an hour. The defendant admitted that he was running at a speed of twenty-two miles an hour. The difference between the two is but slight. But the excessive speed was not the cause of the collision, as we shall show hereafter, and the violation of an ordinance cannot be charged as negligence unless it was the cause of the accident. Lopez vs. Sahuque, 114 La. 1004, 38 South. 810.

Fourth. There is no proof whatever that defendant’s brakes were not in working order.

But it is not enough for the plaintiff to prove that the defendant was negligent; she must prove that she was not negligent herself, and that she did not contribute to the accident, for if she was guilty of negligence and contributed to the accident she cannot recover.

As early as 1841 in Fleitas vs. Rrd., 18 La. 339, the Supreme Court adopted the opinion of an English chief justice, who laid down the law as follows:

“If there was want of care on both sides the plaintiffs cannot maintain their action; to enable them to do so the action must be attributable entirely to the fault of the defendants.”

This jurisprudence has been consistently followed. 2 H. D. 1054; 2 L. D. 494; Taylor Dig., p. 579-585; 2 Breaux 679; 5 La. Dig. 522; Holzab vs. New Orleans & Carrollton Railroad Co., 38 La. Ann. 185; Brown vs. Texas & Pacific Ry. Co., 42 La. Ann. 350, 7 South. 682; Mrs. M. D. Ryan vs. Louisville, New Orleans & Texas Railway Company, 44 La. Ann. 806, 11 South. 30; Hoelzel vs. Crescent City R. Co., 49 La. Ann. 1302, 22 South. 330; Tatje vs. Frawley, 52 La. Ann. 884, 27 South. 339; Scovell vs. Levy’s Heirs, 106 La. 117, 30 South. 322; Buechner vs. City of New Orleans, 112 La. 599, 36 South. 603; Harvey vs. Louisiana Western R. Co., 114 La. 1078, 38 South. 859; Pollezzotto vs. People’s Bank, 125 La. 777, 51 South. 843; Borell vs. Cumberland Telegraph and Telephone Co., 133 La. 630, 63 South. 247; Foreman vs. Louisiana Western Ry. Co., 140 La. 389, 73 South. 342; Combre vs. White Castle, Lbr. Co., 144 La. 699, 81 South. 256; Breen vs. Walters, 150 La. 578, 91 South. 50; Vappi vs. Morgan’s Louisiana & T. R. R. & S. S. Co., 155 La. 189, 99 South. 31; 6 Orl. App. 238-136; 11 Orl. App. 330; 12 Orl. App. 171; Gibbons vs. Railroad, 1 La. App. 371; Burton vs. Railroad, No. 9160 Ct. App., and many others; Huddy, Sec. 398.

In Clements vs. Electric Light Co., 44 La. Ann. 692, 11 South. 51, the court said on page 695:

“But notwithstanding the fault of defendant, if the evidence shows that the plaintiff himself was guilty of negligence, contributing to the injury, he cannot recover. The question is whether the act of the party injured had a natural tendency to expose him directly to the danger, which resulted in the injury complained of. If the plaintiff could, by the exercise of reasonable care at, or just before, the happening of the injury to him, have avoided the same he cannot recover damages for the injury.”

We are of the opinion that the plaintiff was negligent in two instances:

First: When she failed to come “to a full stop” on. approaching Prytania street, which is a right of way street. The ordinance reads, - p. 18, Sec. 2: “No motor vehicle shall turn into or cross any right of way street * * ’ * without first coming to a full stop.” .

This ordinance was passed for the very purpose of preventing accidents like the one under consideration to protect the life and property of persons driving along right of way streets as well as across those streets. Both the Supreme Court and this court have proclaimed the duty to enforce the traffic ordinance. Jones vs. New Orleans Ry. & Lt. Co., 123 La. 1060, 49 South. 706; Orl. App. 8297; Broderick vs. Lane Cotton Mills, 1 La. App. 155; Bianchi vs. Mussachi, 1 La. App. 291.

In Heaslip vs. N. O. Ry., 6 Orl. App. 234, a rule of the defendant company required that “motormeii must bring their cars to a full stop before crossing any intersecting street”. The court said on p. 237:

“The rule requiring cars to stop before crossing intersecting streets is one, the non-observance of which is very condemnable, and the courts would not hesitate in inflicting the payment of damages upon the railroad when it is shown that the person suffering the loss was free of negligence.”

But the plaintiff was dismissed because he had been negligent.

In the case of Russell vs. Ry., 50 La. Ann. 501, 50 South. 466, the municipal regulations required the defendant, an electric street railway, to stop the cars at the intersection of the Texas & Pacific Railway on the occasion mentioned in the suit the motorman could not or did not check or stop his car, an accident followed. The court said:

“There Was manifestly negligence on the part of defendant and an amount is due for the injury.”

The plaintiff refers to the cases of Aymond vs. Western Union Telegraph Co., 151 La. 184, 91 South. 671, affirmed in Holstead vs. Vicksburg S. & P. Ry. Co., 154 La. 1097, 98 South. 679, and in Draiss vs. Payne, 158 La. 658, 104 South. 487, wherein it was decided that it was not ' necessary to come to a dead stop’ or to a state of “absolute immobility”, and that “it will suffice for such person' to have his own motion so checked and under control that he may stop instantly if need be”.

But in all those three cases the court was interpreting a rule of jurisprudence requiring a person to “stop, look and listen”. In those cases the court was at liberty to enlarge or restrict the rule or to disregard it. But it could hardly be said that when a rule of a railroad or the ordinance of a council requires a vehicle to “stop”, that it will be sufficient compliance with the rule or ordinance to slow up or check up.

“The violation of a duty specified by law is negligence. Therefore, when a city ordinance under which an electric lighting company is operated requires it to have .the ‘splices’ on its wires perfectly insulated, the failure to do so • is negligence.” Clements vs. La. Electric Co., 44 La. Ann. 692, 11 South. 51.
“In this case the defendant’s standard of duty was fixed and its measure defined by law. It is the same under all circumstances and its omission is negligence per se.” Tucker vs. I. C. R. R., 42 La Ann. 117, 7 South. 124.
“Contributory negligence arises when the plaintiff as well as the defendant has done some act negligently, or has omitted, through negligence, to do some act which it was their respective duty to do, and the combined negligence of the parties has produced the injury.” Paland vs. R. R., 44 La. Ann. 1003 (1006), 11 South. 707.

Second: The plaintiff was negligent in attempting to cross Prytania street before at best, in the center of the down track nearest the river. This proves that the two cars reached the intersection at approximately the same time. The plaintiff testifies that when she reached Prytania street she slackened her speed. The defendant also says that she did. He, therefore, had a right to presume that she slackened for the purpose of yielding to him the right of way, and that he was not called upon to diminish his speed. When he realized that plaintiff did not stop, he applied his brakes to his car, but too late to avoid the collision.

On approaching a street crossing of a railway track in a city it is the duty of a traveler to exercise his senses of sight and hearing and look and listen for an approaching train. His failure so to do is negligence which, in case of collision, will prevent his recovery of damages for injuries sustained. Herlisch vs. The Louisville, New Orleans & Texas R. R. Co., 44 La. Ann. 280, 10 South. 628; Sauer vs. Union Oil Co., 43 La. Ann. 699, 9 South. 566; Snider vs. New Orleans & Carrollton R. R. Co., 48 La. Ann. 1, 18 South. 695; Dieck vs. New Orleans City & Lake R. R. Co., 51 La. Ann. 262, 25 South. 71; La. Ann. 1894, 28 South. 305; Mongagna Provosty vs. Yazoo & M. Y. R. R. Co., 52 vs. Illinois Central R. R. Co., 115 La. 598, 39 South. 699; Walker vs. Rodriguez, 139 La. 254 71 South. 499; Abels vs. Brown 156 La. 72, 100 South. 54; Adamson vs. Busbey, 1 La. App. 50.

“The driver had a right to presume the person sound of hearing, and that she would exercise her senses so as to avoid an accident by stopping in time to let the mulé and car pass freely.” Schulte vs. New Orleans City & Lake Railroad Co., 44 La. Ann. 509, 10 South. 811.

We are of the opinion that the accident occurred through plaintiff’s negligence as much as defendant’s, if any can be attributed to him. Under the circumstances plaintiff cannot recover.

“When two vehicles approach an intersection at about the same time, the one having the right of way is entitled to proceed, and it is culpable negligence for the. other to attempt to cross.” Norwich Union Indemnity Co. vs. Cohen, 1 La. App. 512.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s suit at her cost in both courts.


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    No. 9100
    Orleans
    PETER E. R. BORDAGES AND JOHN J. TIERNEY v. MRS MARIE J. STAGGERS, Appellant
    (November 16, 1925, Opinion and Decree)
    (November 30, 1925, Rehearing Refused)
    (January 4, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Builders and Buildings—Par. 11.
    A proprietor, who has contracted for all the carpenter work necessary on a certain building, is at liberty to cancel his contract before the completion of the building by paying the other party to the contract the expense already incurred and such damages as the nature of the contract may require as provided by Article 2765, R. C. C.
    2. Louisiana Digest—Appeal—Par. 715, 729.
    Where the interest of justice requires it a case will be remanded for the submission of further proof.
    Appeal from the Civil District Court for the Parish of Orleans. Hon. Porter Parker, Judge.
    This is a suit for the balance due under a contract to erect two-store and apartment house.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.

      the defendant. She saw the defendant’s car coming. She calculated that she would have time to cross before the defendant reached First street. In that she was in error. She says she saw defendant’s car 150 feet from First street. In that she must be mistaken, as the collision took place in the center of Prytania street or,
    Daly & Hamlin, of New Orleans, attorneys for plaintiff, appellee.
    John L. Felieu, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

On the 19th of September, 1921, plaintiffs and defendant entered into the following agreement:

“Kind Madame:

“For the sum of two thousand dollars we, the undersigned, will agree to furnish all carpenter labor required for the erection and completion of two-store and apartment house to be erected at 821 Camp street for Mrs. N. J. Staggers; owner is to furnish all material required to complete the building.

“Payments to be made as follows:

“First payment after floor and ceiling joists are set ____________________________$ 400.00
“Second payment after roof is completed ________________________________ 400.00
“Third payment when all the walls are ready for plaster_______________________ 400.00
“Fourth payment when job is completed ........-....................................... 800.00
“Contract price ......... -......$2000.00
(Signed) “P. BORDAGES.
(Signed) “J. J. TIERNEY.
(Signed) “MARIE J. STAGGERS”.

One payment of $400.00 was made to plaintiffs by defendant and plaintiffs continued supplying the labor under their contract. Mrs. Staggers became dissatisfied with the character of labor supplied and ordered plaintiffs to discontinue and get off the job. This su,it was brought for the balance due under the contract, or $1600.00. There was judgment below for the full sum claimed by plaintiffs and defendant has appealed.

The case is governed by Article 2765, R. C. C. This article provides:

“The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incui'red and such damages as the nature of the case may require.”

Plaintiffs contend that when ordered off the work there was $650.00 due them, and defendant concedes $400.00 to be due. We are of opinion that the record sustains plaintiffs, and we therefore hold that $650.00 was owing to plaintiffs when their contract was cancelled. There must be judgment for this amount. As to the measure of plaintiffs’ damages, there is nothing in the record to guide us.

No evidence as to the cost of the labor necessary to complete contract, consequently no estimate can be made of profits which, as *was held in Cusachs vs. Sewerage and Water Board, 116 La. 510, 40 South. 855, constitute the damages.

We will afford plaintiffs another opportunity to prove the profit of which they have been deprived by remanding the case, as we believe the interest of justice demands. In the meantime, and for the reasons assigned, the judgment appealed from is amended by reducing the sum awarded plaintiffs to $650.00, and this cause is remanded for the purpose of allowing plaintiffs to prove such further indebtedness of defendant as they may or can prove to be due under the contract sued on. The cost of this appeal to be borne by plaintiffs and the costs of the District Court as presently accrued by defendant.


text:
    No. 8870
    Orleans
    SOUTHERN COAL CO., Appellant, vs. HERCULES CO., INC.
    (November 16, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 236, 249.
    Compensation for the injury sustained by a purchaser in consequence of defects in the thing sold can be recovered on it by a redhibitory action or by an action for the reduction of the price.
    2. Louisiana Digest—Action—Par. 39.
    Damages for such injury cannot be considered in a separate and independent demand.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    This is a suit for the price of coal. There was a demand in reconvention filed by the defendant.
    There was judgment in favor of defendant dismissing plaintiff’s demand as in a case of non-suit; and also dismissing defendant’s reconventional demand as in a case of non-suit.
    The plaintiff has appealed.
    In the Court of Appeal defendant also, after filing an answer to the appeal filed a reconventional demand.
    Judgment reversed maintaining plaintiff’s demand and dismissing defendant’s demand in reconvention.
    Claude L. Johnson, of New Orleans, and Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    M. M. Boatner, of New' Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of coal.

The plaintiff alleged that during the two months of October and November, 1917, and January, 1918, they sold and delivered to the defendants, the Hercules Company, Inc., seven carloads of coal, according to the itemized account annexed, amounting to $1500.12, which the defendants have refused to pay.

The itemized account annexed shows:

First: Cars 112,516 and 87,737, valued at $474.30.

Second: Cars 74,910 and 89,621, valued at $341.37; and

Third: Cars 72,455, 112,748 and 5862, valued at $684.45.

The defendant filed a general denial modified by the following allegations:

First: That it bought from the plaintiff and there was delivered to it the coal contained in cars Nos. 112,516 and 87,737, and that for the coal contained in said two cars defendant is indebted to plaintiff in the sum of $474.30.

Second: It denied having received from the plaintiff the two cars, Nos. 74,910 and 89,621, for which the charge is made on said account of $341.37, and therefore denies owing the said amount.

Third: Defendant further averred that for some time prior to October, 1917, it had been buying coal from the plaintiff which was satisfactory in quality; that during January, 1918, it ordered orally from the plaintiff three carloads of coal to be of a quality at least equal to the average of the coal previously bought; that pursuant to said order the plaintiff delivered to the defendant the following cars:

On January 7, one car, No. 72,455;

On January 12, another car, No. 112,748; and

On January 14, a third car, No. 5862.

That said coal so delivered, instead of being equal in quality to the coal previously delivered, was of the very lowest grade, containing a large proportion of foreign matter, and would barely make steam; that the coal was bought by defendant to be used in its levee building machine; that defendant used said coal, and when it discovered that the coal could not be used, it endeavored to buy other coal, but that it was able to obtain other coal only on January 23, 1918; that with an average quality of coal the defendant could have handled in its levee-building machine during said period at least 17,000 cubic yards of material, but that by reason of the inferior quality of the coal delivered to it the machine was able to handle only 6195 cubic yards, making a loss of material handled 10,805 cubic yards; that it was paid at the rate of 22 7-10 cents per cubic yard, and that it lost by reason of the inferior quality of said coal $2452.73.

The defendant therefore claims in re-convention $2452.73, subject to a credit of $474.30.

There was judgment in favor of defendant dismissing plaintiffs’ demand as in case of non-suit; and also dismissing defendant’s reconventional demand and as in case of non-suit.

The plaintiff has appealed.

In this Court the defendant has filed an answer to the appeal praying that plaintiffs’ demand be rejected and for judgment in its favor on the reconventional demand.

Defendant’s reconventional demand could clearly not be entertained.

The Articles of the Code upon tl}e subject are as follows:

C. C. 2520 (2496):

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer Would not have purchased it had he known of the vice.”

C. C. 2541 (2519):

“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it 'be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

C. C. 2544 (2522):

“The action for a reduction of the price is subject to the same rules a.nd to the same limitation as the redhibitory action.”

In Richardson vs. Johnson, 1 La. Ann. 389, the Court said:

“Compensation for the injury sustained by a purchaser in consequence of defects in the thing sold can be recovered only by a redhibitory action or by the action quanti min'oris for a reduction of the price.
“Damages for such wrongs can only be assessed by judgments rendered in one of those forms of action, and cannot be considered as a separate and independent demand or cause of action.” Peterson vs. Burn, 3 La. Ann. 655.

These decisions were affirmed in Fisk vs. Proctor, 4 La. Ann. 562; Conzano vs. Auze, 10 La. Ann. 188, 12 Orl. App. 351.

The defendant, having. admitted owing the first two cars of $474.30, and not having demanded a reduction of the price for the three last cars of $684.45, there remains for consideration only the two second cars valued at $341.37. Did they receive these two cars, 74,910 and -89,621?

The allegation that the coal in the three last cars was of an inferior quality and the demand for damages on that account does not constitute a demand for reduction of price. Richardson vs. Johnson, 1 La. Ann. 3,90.

The secretary-treasurer of the defendant company swears that these two cars were not received by them.

The .only evidence produced by the plaintiff to show delivery are the two bills of lading, which are not sufficient. Although it appears by a letter of plaintiff’s manager, dated December 31, 1917, that they were aware that defendants claimed that said two cars had not been delivered, plaintiffs have failed to show their delivery by any other evidence than the bills of lading.

Plaintiffs, however, attempted to prove that the coal was shipped F.O.B. Mines. Their manager swears to it. The defendant’s secretary denies this. The testimony of plaintiff’s manager is contradicted by his letter of December 31, 1917.

In that letter-, addressed to the Hercules Company, he says:

“Your total indebtedness to us is §2782.98. I believe that this will check up with your records. If, however, you have not received at Yancopin I. C. 89,621 and I. C. 74,910, you may deduct these two invoices from your remittance.”

It is therefore ordered that the' judgment appealed from be reversed and set aside; and it is now ordered that the defendant herein, the Hercules Company, Limited, be condemned to pay to the plaintiff herein, the Southern Coal Co., the sum of one thousand, one hundred and fifty eight and 75-100 dollars, with five per cent per annum interest from November 16, 1918, till paid, and all costs of suit.

It is further ordered that there be judgment in favor of the plaintiff, the Southern Coal Co., dismissing the reconventional demand of the defendant, the Hercules Company, Ltd., at its cost in both courts.


text:
    No. 9110
    Orleans
    SAMUEL FEIN v. R. FINKELSTEIN, Appellant
    (November 16, 1925, Opinion and Decreel

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 351.
    Upon questions of fact judgment will be rendered in accordance with the preponderance of the testimony.
    Appeal from the Civil District Court. Hon. Wm, H. Byrnes, Judge.
    This is a suit upon a building contract.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Howell Carter, Jr., of New Orleans, attorney for plaintiff, appellee.
    Scott E. Beer, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a building contract.

Plaintiff is a contractor. He alleged that in March, 1922, he made a written contract with the defendant to put up show windows for the price of §850.00 according to a blue print annexed to his petition upon the property of the defendant, Nos. 536 38 Canal street; that as appears from said blue print two columns were to be erected in front of said windows, with plate glass in the windows and upon the columns; that during the progress of the work the following extras were ordered by the defendant :

First: Mirrors instead of plate glass in the two columns.
Second: Two extra columns in front, making four instead of two with mirrors, $150.00.
Third: Two extra coats of paint on the Windows, and scraping the floors of the windows and putting shellac and painting the front of the building, $75.00.
Fourth: Making over the door to ^the elevator and transoms with hinges, $25.00; making in all $250.00.
That he had been paid on account of said work the sum of ____________________$400.00
The defendant has paid for "the plate glass ........-.......................................... 317.67
$717.67
Leaving a balance due plaintiff on original contract of _______________ $132.33
And for extra work ________________________________ 250.00
Balance due ........... $382.33

Which plaintiff claims with privilege on the building.

The defendant, Finkelstein, answered that the original sketch submitted by him to the plaintiff for his bid showed four columns and not two, with mirrors on each side of the four posts; that the plaintiff submitted to him a blue print, which he said was a copy of said sketch, together with a contract; that defendant, assuming that the blue print was the same as the sketch, as plaintiff said it was, signed the contract without examining the blue print, and to that extent he was deceived by the statements of plaintiff; he denied that any changes were made to the contract or that any of the work done by plaintiff constituted extras.

The District Court found that there was a balance due on the original contract of $65.00, and allowed $250.00 for the extras.

Defendant appealed.

However reluctant we are to differ from the trial judge upon a question of fact, our duty compels us to decide according to our convictions after reading the testi mony.

One witness, a builder, testifies that the defendant called upon him for a bid to construct the two show windows according to the sketch calling for four columns.

Two witnesses, clerks of the defendan4, swear that the plaintiff was asked to make a bid according to that sketch; one witness swears he helped to draw the sketch; that the plaintiff suggested the propriety of having a blue print made; that he took away the sketch and returned with the blue print and stated that it was in accordance with the sketch; that the defendant then and there agreed upon a price of $850.00 and prepared a written contract to do the work according to the blue print which was annexed to the contract and marked A; that a few days before the completion of the work the plaintiff told them he was losing money on the job but he would get his money anyhow by suing the defendant; that it was then discovered that the blue sketch called for only two columns instead of four.

The defendant testifies that he drew the sketch filed in evidence; that it provided for four columns; that plaintiff took it away to make a blue print of it and to make his bid; that he returned one’ morning when defendant was about to take the train for Pascagoula and exhibited a blue print which he said was the same as the .sketch; he did not look at it; in a hurry he drew up a contract and signed it; he found afterwards that the blue print mentioned only two columns; that plaintiff never mentioned any extra until after the work was completed.

The plaintiff swears he never saw that sketch and never heard of it. In order to believe him we must disregard the testimony of all the other four witnesses. This we cannot do under the rules of evidence controlling us.

Therefore we cannot allow plaintiff the $150.00 claimed by him for- the two columns.

Plaintiff says that he had figured on $317 for putting the glasses and mirrors. The defendant paid the Pittsburg Glass Company $385. We will allow plaintiff the difference between the two, say $68. This figure of $317 would go to prove that the plaintiff had calculated putting in four columns.

The defendant says that he paid the plaintiff in cash $65.00 balance due him. The plaintiff denied this. The burden of proof was on defendant. He has not met it. He must pay $65.00.

He owes also $30.00 for the extra painting of the front of the house done by Tubwitz and $25.00 for repairing the elevator and transoms, making a total of one hundred and eighty-eight dollars.

It is therefore ordered that the judgment herein be amended by reducihg the amount of the judgment in favor of plaintiff from three hundred and fifteen dollars to one hundred and eighty-eight dollars, with five per cent per annum interest from June 2, 1922, till paid, and all costs of suit with builder’s privilege upon the property, 536-538 Canal street, in the square bounded by Common, Camp and Magazine streets.


text:
    No. 10,190
    Orleans
    JAS. M. DELANEY v. MRS. CHARLES LITTLE, Appellant.
    (January 4, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 62, 71.
    An exception of no cause of action is properly referred to the merits when evidence admissible under the pleadings would establish a cause of action.
    2. Louisiana Digest—New Trial—Par. 34, 40, 41.
    Irregularities in motions for a new trial, such as absence of affidavit, or affidavit made by attorney, or failure to serve motion are of little, or no importance, as courts may ex officio direct a new trial when amended petition is not material; no service of it is necessary. The tendency of modern practice is to yield as little as possible to technicalities and to afford aid as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs and subserve the ends of justice.
    Appeal from First City Court. Hon. W. Alex. Bahns, Judge.
    This is a suit for rent. There was an exception no cause of action filed by the defendant.
    There was judgment in favor of defendant dismissing the suit as in case of non-suit.
    On trial of a rule in the lower court judgment was reversed and finally entered for plaintiff.
    Defendant appealed.
    Judgment affirmed.
    Richard T. McBride, of New Orleans, attorney for plaintiff, appellee.
    W. O. Hart, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for rent.

The plaintiff alleged that on June 1, 1924, by verbal lease, he rented to Mrs. Anna Little, wife of Charles Little, the premises, 1109 Baronne street, “in her separate and paraphernal capacity”, for the monthly rent of $65.00 payable in advance; that there is a balance due for the month of May, 1925, of $60.00, and that the month of June is also due, making $125.00, for which he prayed judgment.

The defendant excepted that the petition disclosed no cause of action.

There was judgment in favor of defendant dismissing the suit as in case of non-suit.

A motion for a new trial was filed on same day, June 19, 1925, on the ground of newly 'discovered evidence, to the effect that the defendant had been divorced by judgment rendered March 16, 1925, by the Civil District Court in Suit No. 153,371.

The defendant excepted to the rule for a new trial on the ground that he had not been served, and that there was. no affidavit to it, and that the petition could not -be amended after an exception of no cause of action.

On the trial of the rule the Court allowed the plaintiff to file his affidavit instanter.

On the trial of the rule the defendant testified that she had been divorced on March 16, 1925, by the judgment above mentioned, and that she owed the rent claimed by plaintiff.

There was judgment. for plaintiff and defendant has appealed.

In this court the defendant has assigned seven errors in the judgment.

First: That the court erred in not main taining the exception of cause of action

The petition alleged that the defendant had leased the property “in her separate and paraphernal capacity”.

It might well be -that under those alio gations the defendant said to be a "wife” might be liable individually for household expenses. C. C. 2495 (2409).

The court therefore properly referred th exceptions to the merits.

Second and Third: The court erred ir entertaining a motion for a new trial supported by the affidavit of the attorney only, and in allowing the plaintiff himself to make the affidavit on the trial of the. rule.

Both errors are answered by the case of Nessans vs. Colomes, 130 La. 375, 57 South. 1010, where the court said:

“We think the new trial should have been granted. True, the application for a new trial was not sworn to, but plaintiff offered herself as a witness and was duly sworn, and would have testified to the truth of her allegations. New trials are granted in the interest of justice and are left largely to the discretion of the trial judge; in other words, in the matter of the granting of them, form must yield to the substance and call of justice.”

But irregularities in applications for a new trial are of little' or no importance as courts “may ex officio direct a new trial in order to revise their judgments”. C. P. 547.

In Underwood vs. Lacapere, 10 La. Ann. 766, the court said:

“The court might have granted a new trial ex proprio motu, and we could not have interfered with an exercise of its discretionary powers.”

In the case of State ex rel. Shreveport Cotton Oil Co. vs. Blackman, 110 La. 266, 34 South. 438, the court said, p. 269:

“So far as granting the new trial was concerned, that might have been done within the legal delays by the -judge, ex proprio -motu. He has, within such delays, such control of the judgment that, if satisfied of an error committed, he may, with or Without a formal motion for a new trial having been filed by the party cast, direct the judgment he has rendered set aside and a new trial ordered.” Authorities.

The tendency of modern practice is to yield as little as possible to technicalities and to afford aid as far as practicable to the filing of amendments- which work no injury and prevent useless delays and costs and subserve the ends of justice. Davis vs. Arkansas Southern R. R. Co., 117 La. 320, 323, 41 South. 587; Jelks vs. Robert Smith, 5 La, Ann. 674; Richardson vs. Fenner, 10 La. Ann. 599; Sisters of Charity of Incarnate Word vs. Emery, 144 La. 623, 81 South. 99.

Fourth: That the court erred in trying the rule without service of the amended affidavit upon the defendant.

When an amended petition is not material no service of it is necessary. Reynolds, Byrne & Co. vs. Yarborough, 7 La. Ann. 188; Lockhart vs. Harrell, 6 La. Ann. 531; City of New Orleans vs. Saloy, 11 La. Ann. 420; Swilley vs. Low, 13 La. Ann. 412; Chaffe, Brother & Son vs. Thornton, Edwards & Robinson, 28 La. Ann. 837; Estate of Hickman vs. Boggus, 14 La. Ann. 609.

In Underwood vs. Lacapere, 10 La. Ann. 766, the court said:

“It is urged that the rule for a new trial was served upon the plaintiffs, and that it was made absolute, as to the warrantors only, who had no notice. Although they lived in a distant parish, they were bound to take notice of the orders of the court. The court might have granted a new trial ex proprio motu, etc.”

Fifth, Sixth, Seventh: The three other alleged errors are entirely without -merit.

The counsel had very little confidence in them as he did not appear to argue them.

Judgment affirmed.


text:
    No. 9099
    Orleans
    EMILE M. BABST CO., Appellant, v. JOHN A. JULIANI, ET AL.
    (November 16, 1925, Opinion and Decree)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Builders and Buildings—Par. 29.
    Where a sub-contractor sues several persons alleging that .they are the owners of the land upon which a building has been constructed, in the erection of which he has performed certain work without being paid therefor, and seeks to recover under Act 229 of 1916 upon the ground that no bond has been exacted from the contractor, it is necessary to allege that a statement of plaintiff’s claim has been recorded in the mortgage office of the parish in which the land' is situated as against the parties sued as owners as required by the Act.
    2. Louisiana Digest—Pleading—Par. 23, 62.
    Where defendant’s liability depends upon his ownership of certain property, the fact of ownership must be clearly alleged in plaintiff’s petition. The interlineation of the word “owner” following defendant’s name in the prayer will not suffice.
    Appeal from the Civil District Court. Hon. Wm. H. Byrnes, Judge.
    This is a suit by a sub-contractor against the contractor and owners of a building for the cost of labor and material, with recognition of a lien and privilege upon the property. All defendants filed exceptions no cause of action which were overruled, with one exception, namely, that of James L. Brewer. On the trial of the case there was judgment in favor of the plaintiff against J. A. Juliani alone for the amount claimed.
    Plaintiff appealed.
    Judgment affirmed.
    John T. Convery, of New Orleans, attorney for plaintiff, appellee.
    Hunter C. Leake and Robert E. Bell, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff as subcontractor sues John A. Juliani as contractor and John D. Helmke; Lena Brewer, widow of Charles F. Stumpf; Miss Elsie K. May and James L. Brewer, as owners, upon a claim for $355.00, with recognition of a lien and privilege upon certain property described in the petition, for plumbing fixtures installed in an oil station on the corner of Carrollton avenue and Ulloa street in this city.

All parties defendant filed exceptions of no cause of action. These exceptions, except as to James L. Brewer, were overruled and the case tried on the merits by the remaining parties litigant. There was judgment in plaintiff’s favor as against the defendant, John A. Juliani, alone, for the amount claimed, and the case was dismissed as to the other defendants. Plaintiff has appealed.

The exception of no cause of action as to Brewer was properly maintained, and we think should have been maintained as to the other defendants, the alleged owners of the property.

There is no allegation in the petition to the effect that Brewer is the owner of the property. On the contrary, the petition alleges that Helmke, Mrs. Stumpf and Miss May are the owners. The fact that in the prayer of the petition Brewer is named with the other defendants against whom citation and judgment is asked and the word “owners” interlined in ink can not save the situation. He is not referred to even in the prayer of the petition as the owner of any property upon which plaintiff is entitled to any privilege. The basis of this demand as against the owners of property upon which a lien and privilege is claimed is the allegation (very inartistically made) that they are the owners of the land upon which Juliani contracted to erect an oil filling station, and they failed to require Juliani to give security under the building laws of 1916. Failing to allege that Brewer was the owner of the property, no case is presented as to that defendant.

Plaintiff does allege that Helmke, Mrs. Stumpf and Miss May, a femme sole, are the owners of the property, but it is nowhere alleged that a statement of plaintiff’s claim as against these owners was filed in the mortgage office of the parish in which the property is situated, as re■quired by Section 2 of Act 229 of' 1916 The allegation is made in Article VIII of the petition: “That your petitioner filed in the mortgage office and had duly recorded a lien and privilege for the amount of tirs claim as will appear from the mortgage office record, Book 1274, Folio 462, original of which is attached hereto and made part of this petition.” A reference to the attached certificate shows that the stajp ment of plaintiff’s claim was made and recorded in the name of James L. Brewer as owner of the property, and no one else'.

We do not discuss the right of plaintiff of action alleged as to the other three defendants sued as owners of the property. Of course, as to Juliani, who contracted for plaintiff’s fixtures and who makes no defense, plaintiff must have judgment.

We do not discuss the right of plaint"" to amend his petition or the propriety of remanding the case for that purpose since this question has not been raised, and from statements made at the bar of the court it would be futile to remand the case in the interest of justice upon our own initiative.

The trial judge reached the same result by a little different route it is true, but since we are in accord with his decree the judgment appealed from will, for the reasons assigned, be affirmed.


text:
    No. 9764
    Orleans
    RUFFO v. MARCOTTE
    (November 2, 1925, Opinion and Decree)
    (November 30, 1925, Rehearing Refused)
    (May 4, 1926, Decree by Supreme Court. Reversed.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Attorneys—Par. 45, 49, 66.
    An attorney-at-law has no lien upon or right to apply the funds of his client given to him for a' special purpose to the payment of his fees for professional services.
    Appeal from Civil District Court for the Parish of Orleans, No. 131,417, Hon. Mark M. Boatner, Judge, Division “B”.
    Action by Mr. and Mrs. Ernest Ruffo against H. E. Marcotte.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Victor K. Kiam and Jos. H. Brewer, of New Orleans, attorneys for plaintiff, appellee.
    Bernard Titche, Paul W. Maloney and Bernard Titche, Jr., of New Orleans, attorneys for defendant, appellant.
   OPINION

CLAIBORNE, J.

This is an appeal taken by Paul W. Maloney, garnishee herein, from a judgment on a rule to traverse condemning him to pay over to plaintiff the amount of a certain judgment which plaintiff obtained against the defendant, H. E. Mareotte.

After the appeal was lodged in this court and while awaiting a hearing, the plaintiff collected the judgment with interest and costs from defendant, as is made to appear by motion filed in this court. Plaintiff’s counsel, when the case was called for trial, sought to have the appeal dismissed since his client had been paid in full and was, therefore, without interest in collecting the judgment against appellant, garnishee, but the appellant, who is a member of this bar, objected, claiming the right to have the judgment appealed from reviewed in order to determine the question of costs.

The reason assigned by appellant as justifying the reversal of the judgment appealed from is the alleged error of the trial judge in holding that funds deposited by defendant with appellant were subject to garnishment process at the instance of a creditor of defendant and not applicable to the payment pro tanto of attorney’s fees and costs due appellant.

The money deposited with appellant by defendant was for the purpose of paying the rent for a certain dw'elling occupied by defendant and the judgment made the basis of garnishment process was based upon a claim for the same rent of the same dwelling.

There was a reason for the failure of appellant to pay the rent which absolves him of any blame, but, nevertheless, the money was paid him for a special purpose and was, therefore, a deposit which was not subject to be compensated by unliquidated claims for attorney’s fees and costs. Mutual Natl. Bank: vs. Kenan Slawson, 35 La. Ann. 1129.

We find no error in the judgment appealed from and it is, therefore, affirmed insofar as it condemns appellant to pay costs.


text:
    No. 9017
    Orleans
    INTERSTATE ELECTRIC CO. v. LEO NEUGAS, Appellant
    (October 5, 1925, Opinion and Decree)
    (October 19, 1925, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Mandate—Par. 40, 42.
    The principal must reimburse the iust and necessary sums which the agent has expended in the execution of his mandate and pay him reasonable compensation for his services.
    2. Louisiana Digest—Mandate—Par. 42.
    The principal cannot reduce the amount of his reimbursement under pretense that the expenses might have been less, when they were made by the agent in good faith.
    3. Louisiana Digest—Mandate—Par. 42; Interest—Par. 18.
    The principal owes five per cent interest on all advances made by his agent for his account from the day upon which the advance is made.
    4. Louisiana Digest—Interest—Par. 20.
    An obligation to pay conventional interest must be evidenced by writing.
    5. Louisiana Digest—Interest—Par. 19, 21.
    A notation printed by the creditor upon a bill sent by him to his debtor in these words: “Interest charged at the rate of eight per cent per annum after thirty days from date of invoice” will not create on the part of the debtor an obligation to pay that rate of interest.
    6. Louisiana Digest—Costs and Fees— Par. 53.
    Where the appellant has failed to apply for a new trial in the District Court to correct a clear error in the judgment, he will be condemned to pay the costs of appeal.
    Appeal from Civil District Court, Division “B”. Hon. Percy Saint, Judge.

      This is a suit by an agent against principal for reimbursement of money advanced for his account.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Lemle & Lemle, of New Orleans, attorneys for plaintiff, appellee.
    Hall, Monroe & Lemann, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit by an agent against his principal for reimbursement of money advanced for his account.

The plaintiff alleges that in November, 1918, the commercial partnership of Meyer & Neugas, composed of N. Meyer and Leo Neugas, doing business in Magnolia, Mississippi, sent to plaintiff in New Orleans one 50 H.P.A.C. controller to be rewound, reinsulated and repaired; that plaintiff was not in that line of business as was well known to the defendants; that plaintiff notified them of that fact. Whereupon defendants instructed plaintiff to have the repairs made; that plaintiff called upon a number of mechanics in an endeavor to have the repairs made, but every one was crowded with work, and finally plaintiff delivered the controller to Emanuel Hart, doing business under the name of the Enterprise Electrical Company, who undertook the work on a time basis of $2.00 per hour for each man for each day’s work, and double that amount for overtime and night work, eight hours to constitute a day’s work; plaintiff communicated this charge to the defendants, who instructed him to have'the work done by day and night work; that accordingly plaintiff ordered the Enterprise Electrical Company to proceed with the work, and on completion thereof paid the bill to the Enterprise Electrical Company for $302.84, and billed defendants for the amount thereof, plus ten per cent for plaintiff’s disbursements and services in the matter, which is the customary charge for like services, which the defendant refused to pay.

The defendants admitted that they had shipped to the plaintiff a controller to be repaired, and instructed him to have the repairs made. As to the instruction to have the said work done, by day and night work, as the loss qf this controller was costing the partnership $50.00 per day, defendants alleged that they had “no information sufficient to justify a belief as to the remaining allegations of this article and therefore deny the same”. Further answering, defendants alleged “that the said controller, after being shipped back to said firm at Magnolia? Mississippi, failed to give satisfactory service, which necessitated the said Enterprise Electrical Company twice sending one of. its employees to remedy this defect for which it has been duly paid”. Further answering, the defendants averred that the repair work which the Enterprise Electrical Company performed upon the controller was of an inconsiderable character, worth about $25.00 if properly done, and that the bill of $302.84 was “extravagantly, grossly and absurdly excessive and. the payment of the same by plaintiff without authorization of defendant amounted to a flagrant breach on the part of plaintiff of its obligation of agent”. Defendants further averred that if the payment alleged was made to the Enterprise Electrical Company, said payment was- made by plaintiff with full knowledge of the excessive and unreasonable character of this charge, in order to obtain from the Enterprise Electrical Company the payment of a bill to it amounting to several thousand dollars which it owed plaintiff and payment of which was held up, pending the payment by plaintiff of this excessive and unreasonable charge for the repair of the controller in question. Defendants denied ail the other allegations of the petition.

There was judgment for plaintiff and defendant has appealed.

The defendant, having shipped the controller to the plaintiff with instructions to repair it, it is immaterial as far as the cost of the repairs is concerned whether they were made by the plaintiff or by someone employed by it. If those costs were reasonable, they would have been due by the defendant in either case to the plaintiff or to someone employed by it. But it would seem that the defendant was aWare that the plaintiff would not make the repairs itself and had entrusted them to someone else. All the objections at all times were directed to the high price charged for the repairs and not to the commission or service charge claimed by plaintiff for attending to having them made. As stated by the plaintiff, this charge covered all telegrams which were sent in this case, telephone messages which it paid, the drayage to the station to get this armature and all other services rendered in connection with it. For those services they were entitled to be paid. Daly vs. Kiel, 106 La. 170, 30 South. 254. Tropling Mandat, S. 622. The only question presented, therefore, is whether the charges for repairs, $302.84, were reasonable and just.

The amount of the charge for the repairs themselves is thus explained by M. E. Hart, doing business under the name of the Enterprise Electrical Company for the past fifteen years. He repaired the controller or starter of the defendant. Materials:

35 feet of wire for the coil____________________$ 5.90
26 pounds of silk magnet wire____________ 45.50
8 rolls linen tape..................................... 6.00
Varnish, solder and tape, etc_________________ 10.95
$68.35

He agreed with the plaintiff to furnish the labor at the price of $2.00 per hour for electricians and $1.50 per hour for helpers, and double price for labor after hours. The repairs occupied two days and two nights at the following cost:

From 8 o’clock in the morning to 12 o’clock noon is__________________________ 4 hours
From 1 o’clock p. m. to 5 o’clock p. m. is ________________________________________________ 4 “
Making straight time ____________________ 8 “
From 6 o’clock p. m. to 12 p. m. is 6 hours, equal to double time______12 “
From 1 o’clock a. m. to 8 o’clock a. m. is 7 hours, equal to double time .....................................................14 “
Equal to ................................................34 “
The whole equal to one day and one night of 34 hours at $2.00 per hour, equal to $68.00; and for two days and two nights for electricians________$136.00
For the helpers, 34 hours per day at $1.50 per hour, $51.00, or 2 days____ 102.00
Making a total of ________________________________$238.00

Those were the prices prevalent in the years after the war, 1918-1921, on account of the scarcity of labor. Union labor was $1.00 per hour for electricians and 75 cents for helpers for day work and double that price for overtime or night work. It is notorious that many laborers consented to work only at night in order to command double wages. Even at those prices it was not a question of getting the work but of procuring the labor.

The evidence is that the plaintiff actually paid to the Enterprise Electrical Company the amount of $302.84 in a check to their order.

Nor does it matter that the price paid by plaintiff was exorbitant. It was the current price of the day.

Defendants had not limited plaintiff to the price. Defendants were in urgent need of their starter as they were stopped in their ginning operations for the want of it. They could not have bought a new starter as there were none in New Orleans, and to have bought one elsewhere would have meant precious delay.

Nor is there any foundation for the allegation that the plaintiff paid the bill to the Interstate Company promptly, because that company owed the plaintiff “several thousand dollars” Which it had threatened to hold up until this bill of $302.84 was paid”.

Defendant in his brief on page 8 admits that “this charge is not sustained but is disproven”.

The plaintiff denies this charge under oath and the books of his company corroborate him. Two witnesses for the defendants were examined on this subject, and all they say is that they heard Mr. Levy, vice-president of the plaintiff company, say that he paid the bill, otherwise he would not have gotten any more business from the Interstate, a conclusion easily reached in those days.

The law on the subject is contained in Article C. C. 3022 (2991):

“The principal ought to reimburse the expenses and charges which the agent has incurred in the execution of the mandate, and pay his commission when one has been stipulated. If there be no fault imputable to the agent, the principal cannot dispense with this reimbursement and payment, even if the affair has not succeeded; nor can he reduce the amount of reimbursement under pretense that the charges and expenses ought to have been less.” 2 C. J. 794, S. 459.

The defendant contends that plaintiff is entitled to recover the amount which it paid Hart only to the extent that the bill of the latter was lawfully due and enforceable. He supports his proposition by a quotation from 2 C. J. 800:

“Where the payment by the agent is voluntary, his recovery against the principal is not necessarily the amount paid, as it cannot exceed the amount which he would have been forced to pay.”

We believe this doctrine to be correct. In other words, whatever sum for the materials and labor Hart could have compelled the Interstate Company to pay him, this company can compel the defendant Neugas to reimburse to him. Such is the law everywhere.

We have been unable to find any case in the reports of our Supreme Court where this article has been interpreted.

Article 3022 of our Code is taken literally from the Article 1999 of- the Code Napoleon, also Article 1375. The principle is derived from Pothier on Mandate, Vol. IV, p. 237, S. 68.

In 30 Dalloz Rep. Leg., p. 729, S. 324, we read:

“It is of little importance, according to the terms of our article, that the agent has spent more than the principal would have spent had he acted himself, because good faith requires that the agent shall not be a loser, which would happen if his advances were reduced to what they might have been strictly.” Troplong, No. 626, p. 586.

18 -Duranton, p. 255, 'S. 266, says that the meaning of the article is that the principal must not quibble or cavil about those expenses, although the principal might have spent a little less; but not in the sense that because the agent had not been limited in his expenses that he could recover an amount evidently exaggerated. 28 Laurent, S. 9, p. 11.

Troplong on p. 586, S. 628, says: “It suffices that his expenses have been in good faith to entitle him to be reimbursed.”

1 Domat, p. 360, S. 3:

“If the expenses made by the agent exceed what the owner of the thing would have spent upon it, if he had applied himself to it, he will not cease to be bound for all that has been spent reasonably and in good faith, although with less care or economy.”

1 Strahan, English Ed., p. 470, S. 1140.

The above article of our Code and the opinions of French commentators seem to have been adopted in letter and spirit by the common law.

We quote from Story on Agency:

S. 535: “Another right of the agent is to be reimbursed all their advances, expenses and disbursements, made in the course of their agency on account of, or for the benefit of, their principal. * * * Hence, all the incidental charges and expenses incurred for warehouse room, duties, freight, lightering, general average, salvage, repairs, journeys, and other acts done to preserve the property of the principal, and 'to enable the agent to accomplish the objects of the principal, are to be fully paid by the latter”; quoting numerous Latin, French, American and English authors.
S. 536: “But this liability of the principal proceeds upon, the ground that the advances, expenses and disbursements have been properly incurred, and reasonably and in good faith paid, without any default (fault) on the part of the agent. * * * Cases may indeed occur of such peculiar exigency as will justify the agent in making advances or incurring expenses beyond what ordinarily appertains to the regular course of business, for which, nevertheless, the principal will be bound to make him a full reimbursement.”

J. K. Rippard, who made the repairs, testified as to the time required to make them and the value of the work bestowed upon them. He also says that the starter did not work after it was returned to the defendants because it - was not properly connected and because the starter block was burned. At the time of the trial he was no longer employed by the Enterprise Company.

His testimony is corroborated by that of M. E. Hart, doing business under the name of the Enterprise Electrical Company, by whom the work was done.

2 C. X 794, S. 459:

“So if an agent, acting within the scope of his authority and in good faith, expends money for the benefit and account of the principal in the course of the agency he is entitled to reimbursement.”

The evidence, preponderates in favor of the good faith of the plaintiff and the correctness of the bill paid. Although this suit was filed in July, 1920, and was tried in December, 1922, there is no testimony contradicting the correctness of the bill sued on nor the testimony of Rippard or of Hart in support of it.

The petition prayed for, and the judgment allowed eight per cent interest from January 1, 1919, until paid.

The Civil Code Article 3025 (2994) provides :

If the attorney has advanced any sum of money for the affairs of the principal, the latter owes the interest of it from the day on which the advance is proved to have been made.”

But this interest is legal and not conventional.- C. C., 1936-2924. Legal interest is five per cent only.

Art. 1938 (1932): “All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.”
Art. 2924 (2895): “Interest is either legal or conventional. Legal interest is fixed at the following rates, to-wit: At five per cent on all sums which- are the object of a judicial demand, whence this is called judicial interest. * * *
“The amount of the conventional interest cannot exceed eight per cent. The same must be fixed in Writing; testimonial proof of it is not admitted in any case.”

Must be fixed in writing:

Stewart, Hyde & Co. vs. Buard & Dronquet, 23 La. Ann. 201; Merrick vs. North, 28 La. Ann. 879; Bayley & Pond vs. Stacey & Poland, 30 La. Ann. 1210; Crossley & Sons vs. Commissioners of Louisiana Savings Bank and Safe Deposit, 38 La. Ann. 74; Martin vs. Muvicy & Marcy, 40 La. Ann. 190, 3 South. 640; Young vs. Upshur, 42 La. Ann. 362, 7 South. 557; Hollowell Granite Works vs. Orleans, 144 La. 426, 80 South. 610.

Testimonial proof not admitted; the law is prohibitive; writing is of the essence of the . agreement. Reid vs. Duncan, 1 La. Ann. 267; City of New Orleans vs. Cordeviolle & Lacroix, 13 La. Ann. 268; Gerspach & Herring vs. Mullin, 25 La. Ann. 599.

Testimonial proof of rate of interest js not admissible. Reid vs. Duncan, 1 La. Ann. 265; Succession of Hebert, 4 La. Ann. 78; Lalanve vs. Breaux & Matherne, 5 La. Ann. 505; Keane vs. Branden & Semple, 12 La. Ann. 20; Gerspch & Herring vs. Mullin, 25 La. Ann. 599; Young vs. Upshur, 42 La. AnAn. 362, 7 South. 557; Eishel vs. Irwin, 132 La. 344, 61 South. 397.

A notation printed by the creditor upon a bill sent by him to his debtor in these words: “Interest charged at the rate of eight per cent per annum after thirty days from date of invoice,” is not sufficient to create on the part of the debtor an obligation to pay that rate of interest. It lacks the consent of the debtor in writing. There is no such consent in this case! It takes two to make a contract. Holstein vs. Henderson, 6 Mart. (N. S.) 271; Mullony vs. McDougall, 2 La. 157; Marmiche vs. Roumieu, 11 La. Ann. 477; Smith vs. Smith, 51 La. Ann. 77, 24 South. 618; 63 N. E. 761, 763; 24 Cyc. 1168.

The interest on the judgment must therefore be reduced from eight per cent to five per cent. Heard vs. Wynn, 22 La. Ann. 469; Gerspach & Herring vs. Mullin, 25 La. Ann. 599.

But the defendants and appellants did not apply for a new trial in the District Court to correct this slight error. We shall correct it, but in the exercise of our discretion under Act 229 of 1910 we shall tax the costs of appeal on defendants. S Ct. App. 153 (155).

It is therefore ordered that the judgment herein be amended by reducing the interest from eight per cent to five per cent per annum from January 1, 1919, till paid, and as thus amended that said judgment he affirmed, the defendant and appellant to pay the costs of the District Court and of this Court of Appeal.