text:
    No. 13,129.
    J. H. Hinnricks vs. A. Monteleone.
    Syllabus
    1. It appears by the slatement of facts that relator consented to pay for the work done by the workman, in whose favor judgment was pronounced, after the loss of his house, which rendered useless the completion of the work (almost complete at the time of the accident).
    The District Court and Court of Appeals, upon the state of facts shown, decided that the workman was not at fault. This court found no ground to-grant an application to review the proceedings.
    IN BE A. Monteleone applying for certiorari> or writ of review, to-the Court of Appeals, Parish of Orleans, State of Louisiana.

      A. Voorhies for Petitioner.
    Bespondent judges for themselves.
    Submitted March 28, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused April 1, 1899.
   The opinion of the court was delivered by

Breaux, J.

Relator, in substance, sets forth that a judgment of the Court of Appeals, affirming a judgment of Division D. of the Civil District Court, is eroneous on a number of grounds, and he asks that a writ of certiorari be issued to the Court of Appeals, directing that court to transmit to this court, the whole record of the suit of J. H. Hinnricks vs. A. Monteleone for review and decision of questions of law; and further, to pass upon all facts involved as in the case of an appeal to the Supreme Court.

The grounds of the relator are that the Court of Appeals overlooked, or practically overruled, the opinion rendered in Hart vs. Suez, 9th La., 434, which decision properly interpreted Articles 2758 and 2759-of the Civil Code. The first article of the Code cited, reads: “When tho undertaker furnished the material for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not receiving it.” There can. be no considerable dispute about the law, as it is plain. Relator contends that his case comes within its terms. This, on the other hand, is-practically answered in a contrary sense by the pleading before us and the statement of facts.

With reference to the statement of facts, we find that plaintiff and' defendant, having failed to agree, tho district judge made it up under Article 603, C. P. (as a deposition had not been taken in writing).

This statement now before us sets forth that relator agreed to pay the sum of $480 for a show case made at plaintiff’s factory; that on the 28th of October, 1891, the show case was set as agreed upon, and there remained only the glass to be fitted in; that the glass was in a-box on the premises in sizes to suit, and the fitting in could have been done in two hours; that a fire occurred, damaging defendant’s building, doing- no damage however to the show case or to the glass. On1 the day after the fire, plaintiff offered to put the glass in place, but defendant told him not to do so, and that the bill would be paid. The-city authorities, finding defendant’s building unsáfe, ordered its-demolition; it was done, and the relator secured the full amount of his insurance on the building. When plaintiff offered to prove the value of the show case, the defendant (relator here) admitted that he did not rest his defense on Article 2765 of the Civil Code; that plaintiff should either recover all he claimed, or recover nothing; .that this ' was made as a matter of admission in his argument during the trial. The glass, which was packed in a box, was removed away from the premises, as defendant refused to take care of it. In a few days it wat, carried to Hinnrick’s factory, but he notified defendant, Monteleone;. that he held it subject to his orders. Subsequently this glass was destroyed by fire in plaintiff’s factory. •

The case of Monteleone vs. Royal Insurance Company, 47th Ann., 1563, in which case the court decreed the insurance money for the house in which the show case was erected, was made part of the-statement of facts to prove that Monteleone collected the policies of insurance on the building. This statement is signed by the district judge, by whom it is made

Prom the foregoing it is manifest, first, by the effect of the consent, and, second, by the evidence and the theory on which the case was-argued, relator’s case was taken out entirely from the’ application of the quoted article.

If the facts be, as stated, the matter was one of consent on the part of Monteleone. He consented to pay plaintiff the two hour® due on the work.

The statement of facts was made under tie- authority of larw.. No 'Objection appears of record, and no bill of exception was- taken-.. We 'would not be warranted in remanding the case-.to ascertain in what 'respect an error of fact might have been committed. The- matter, in -our judgment, is finally settled. Relator has had' his- day in court. ■In order to have another here- we would have to treat, as- not written, '■the statement of facts accompanying Ms application;. This we are constrained to decline. Again, relator avers that in preparing a statement of facts (counsel disagreeing) the judge a■ quo- found' upon the-isolated statement, showing Monteleone’s consent to pay for the work, was in direct conflict with plaintiff’s judicial admission- in both petitions, and against the insertion of which, in the statement of facts, he was powerless; that the Court of Appeals, disregarding all the proceedings, found as an additional ground for affirming- the judgment of the District Court that Monteleone particularly- promised to- pay the amount of plaintiff’s claim. Erom this it appears that the Court of Appeals had accepted the statement of facts- made out in the District Court as correct.

We must say, in answer to this petition, that we have not found' great conflict between the statement of facta and the allegations of" plaintiff’s petition (relator here). The allegations of Hinnrieks, which relator says are contradicted by the statement of facts, are, in substance, that Monteleone forbade him (Hinnrieks) from finishing the work, and refused to pay him. This would not necessarily be in conflict with evidence showing that, at some prior time, Monteleone had stated to Hinnrieks that he would pay for the work as a whole, -and not to finish it. Besides, the judge having, in fact, certified that Monteleone consented to pay for the work in the absence of any •evidence of objection to the proof, we are warranted in concluding that there was no conflict, and that the evidence was admitted without objection.

Relator was not without some remedy in the District- Court, and if the statement of facts was erroneous, there should be something before us to show that objection was timely made before the District •Court. There is here nothing of the sort:

Returning to our first proposition in answer to relator’s complaint •of the contradiction between the statement of facts prepared by the district judge, and Hennrick’s admission contained iii his petition, vs e heretofore copied the asserted admission as decided by the relator. The admission, if it be one, must be taken as a whole. It reads:

“That on the evening of said fire, the said Monteleone requested petitioner not to go on with the work of putting in the plate glass for some days; and, finally, say about the end of November, your petitioner having offered to put in said plate glass and finish his work under contract, the said Monteleone forbade him to finish the work, and refused to pay him the amount contracted for.”

Taken as a whole, it may well be that, at some time, Monteleone -promised to pay for the work, and after “he forbade him to finish the work and refused the amount contracted for.”

It does not follow that there was necessarily a 'contradiction, and the evidence having been admitted, so far as the record discloses, and the pleadings, without objection, a ground does not arise here upon ■which we can reverse the judgment.

The application is not granted, and the petition is dismissed.

Monday, April I’Tth, 1899. Rehearings in this class of oases are not -admissible under the rules of this court. ■ -


source: Caselaw Access Project

author: Breauy, J.

license: Public Domain

text:
    No. 12,879.
    Central Manufacturing and Lumber Company, Limited, vs. Mutual Building and Homestead Association et al.
    Syllabus.
    The constitutionality of Act 180 of 1894 is not before the court on appeal.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Dart & Kernan for Plaintiff and Appellee.

      J. Zach 8-gearing for Mutual Building and Homestead Association^. Defendant, Appellant.
    P. i¥. Milner for Fidelity and Deposit Company, of Maryland, Defendant.

      Edwin T. Merricle, Amicus Quriae.

    Argued and submitted April 4, 1899.
    Opinion handed down April 17, 1899.
   The opinion of the court was delivered by

Breauy, J.

Plaintiff sued the defendant, the Mutual Building and' Homestead Association, for the price of materials used in the construction and erection, of one of its buildings, and the Fidelity and Deposit Company, its surety, on a bond given to secure the association against the consequence growing out of non-payment of the furnisher of materials to erect the latter’s building.

The defendants are sued in solido for $309.51, amount claimed. There being a constitutional question involved, the appeal lies to this-court.

The facts are that the building material sold by plaintiff was actually used by the contractors in the construction of a building of the Mutual Building and Homestead Association, and that a bond was given by the contractors in favor of the Association, to protect it: against a claim oí material men and laborers; that the contractors left the city and failed to pay the amount due to material men and others; and that, in consequence, plaintiff brings this suit to collect the amount of the contractors’ indebtedness to it.

The Fidelity and Deposit Company filed the exception of Lis Pen-'dens against its co-defendants (the Mutual Building & Homestead Association), called in warranty.

It aiipears that although the Fidelity and Deposit Company was already one of the parties defendants; the Mutual Building & Homestead Association asks to have the former, that is, the Fidelity and Deposit Company, cited in warranty. This demand, it appears, was ■dismissed on the ground of Lis pendens. From this decision, the Mutual Building and Homestead Association appealed, although more than one year had elapsed since the judgment dismissing this demand had been rendered. The case was afterward tried on the merits between the Central Manufacturing Company, Limited, plaintiff, and the Mutual Building and Homestead Association and the Fidelity and Deposit Company, as warrantors, and judgment was pronounced in •favor of the Mutual Building and Homestead Association against plaintiff, dismissing the latter’s demand, and in favor of the plaintiff, the Central Manufacturing and Lumber Company, Limited, against the Fidelity and Deposit Company, appealed to this court.

On Motion to Dismiss tiie Appeal op the Homestead Association.

The Mutual Building and Homestead Association took an appeal from the order dismissing its demand made to have the Fidelity and Deposit Company cited in warranty. More than twelve months had ■elapsed from the date of the judgment dismissing the call in warranty to the date that the Mutual Association moved for an appeal.

Upon this point we found that, whether the judgment from which the Mutual Building and Homestead Association appeals, was, as it contends, an interlocutory judgment, and not appealable, as it insists, it remains as a fact that it was the only judgment from which the Mutual Building and Homestead Association appealed, and the time had elapsed within which to appeal. It is true that an appeal from a final judgment has the effect of bringing up for review the ruling of the court on interlocutory orders, but, on the other hand, it is well •settled that an appeal from an interlocutory order has not the effect ■of securing a hearing from the final-judgment.

The motion to dismiss the appeal of the Mutual Building and Homestead Association is, therefore, sustained.

As relates to the other defendant, the Fidelity and Deposit Company, in this court it has filed an assignment of errors, setting forth in substance, that the court a qua having decided Act 180 of 1894, unconstitutional, the action of plaintiff was at an end; that the court a qua erred in holding that plaintiff had a direct action on the bond.

This defendant, The Fidelity and Deposit Company, did not raise-any question in the District Court of the constitutionality of the law. No pleadings were filed in that view.

Before this court the assignment of error shows that the District Court declared a law unconstitutional. On that decision this defendant claims that the action against it fell; that it no longer can be held bound. • But this does not present an issue oh the part of this defendant of the unconstitutionality of statute 180 of 1894.

That issue (unconstitutionality of a statute), we have frequently decided, should be reviewed in the lower court; if, however, we should hold that it can be urged on an assignment of error, the assignment of eror here does not show that this defendant and warrantor seeks some right on the ground of the unconstitutionality of a law.

For reasons assigned, it is, therefore, ordered, adjudged and decreed that the appeal in this case is dismissed.


author: Blanchard, J.

text:
    No. 12,953.
    John M. Cunningham vs. Jules C. Denis.
    Syllabus.
    1. Two partners, in disagreement over tlie affairs of a partnership, appointed-a third person as arbitrator, custodian, receiver and depositary, with authority to dispose of the partnership assets, pay debts of the partnership, and also individual debts of the partners, and settle with them for balance-left over.

      2. This third person, acting within the scope of the mandate thus accepted' by him, will be protected against the suit of one of the partners seeking to hold him responsible on the theory of a change, by subsequent agreement of the partners, as to disposition of part of the assets. Such subsequent agreement, to control, must appear with as much certainty and definiteness as did , the first conferring the mandate.

      APPEAL from the Civil District Court for the Parish of Orleans. —Monroe, J. ■

      W. 8. Benedict and F. Rivers Richardson for Plaintiff, Appellant.

      Buck, Walshe & Buck for Defendant, Appellee.
    Argued and submitted March 8, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff and James L. O’Connor were partners in a contract with the City of New Orleans for constructing certain iron bridges, etc.

The contract had been taken in the name of O’Connor. Payment for the bridges was made by the city in certificates of indebtedness, or warrants drawn against a certain fund, which it seems was yet to be collected. Four such certificates were issued, all in the individual name of O’Connor, aggregating the full value of $28,983.

Disagreement arose between the partners, with the result that Cunningham (plaintiff herein) filed a bill in equity in the Federal Court against O’Connor, the object of which was the settlement and liquidation of the partnership affairs. The appointment of a receiver was asked, an injunction pendente lite prayed for, and pending its consideration by the court, a restraining order was issued prohibiting O’Connor from collecting or disposing of any of the partnership assets, and particularly the certificates or warrants issued or due from the City of New Orleans.

This litigation in the Federal Court appears to have gone no further. It was ended by agreement of the parties thereto to submit all of their differences to J. C. Denis (now defendant herein) and to abide by his decision in reference to same; and it was further consented that he should act as receiver of the partnership, or rather as custodian and depositary of its effects and funds, with authority to collect and dispose of its assets and pay its liabilities.

It appears that the only assets which passed into the hands of the custodian so selected were the four certificates, hereinbefore referred to, issued by the city.

The selection of defendant as arbitrator and custodian was made December 3, 1896.

On the same day the two partners signed a further agreement to the ■effect that the custodian was to pay the indebtedness of J. L. O’Oonnor (one of the partners) to the Germania Bank, and the bills of •certain other creditors who were mentioned — all bills to be approved prior to payment by both partners, and to be paid out of the proceeds of the certificates issued by the city.

Following this, the partners appear to have agreed upon the figures of a settlement between themselves, and on January 22, 1897, placed in the hands of defendant (arbitrator and receiver aforesaid) a paper evidencing such agreement as follows:

“James L. O’Connor

“To John M. Cunningham, Dr.

“To balance due on one-half interest in the profits on contracts taken by J. L. O’Connor and J, 11. Cunningham under their agreement — payable out of the proceeds of sale of certificates issued by the •city of New Orleans in favor of J. L. O’Connor, and now held by the 'Germania Bank — forty-nine hundred and eighty-four dollars ($4984).

“Approved — subject to one-half of discount on sale of the certificates mentioned.

(Signed)

J. L. O’Connor.”

“Accepted in settlement of balance due me with the right to benefit of one-half of reduction, if any, on bills now pending settlement.

(Signed)

J. If. Cunningham.”

This agreement contemplated two things:

1. That the city certificates should be sold by the receiver.

§. That Cunningham (plaintiff) was to be paid what was stipulated to be due him out of the proceeds of the sale.

But, necessarily, payment to him was to be postponed or subordinated to payment of those claims against the fund which the two partners approved or might thereafter approve for payment.

Following this, the two partners repeatedly urged upon the receiver to effect a sale of the certificates, to the end of settling the debts and winding up the affairs of the partnership, and he exerted himself to dispose of them to the best advantage.

Finally, through a firm of brokers, he effected a sale of the same at 90 cents on the dollar and realized $26,084.70 in cash for the lot, out of which he paid brokerage commissions of 1%, leaving net $25,794.87. This was on May 4, 1897.

He promptly notified both partners of the sale so effected, and the next day J. L. O’Connor replied by letter approving the sale.

It seems, however, that following the agreement of January 22nd, heretofore recited, some negotiations were had between the two partners looking to a different settlement of the $4,984 agreed on as Cunningham’s share of the profits of the contract with the city. It appears that Cunningham proposed to take at par one of the certificates issued by the city for the amount due him, paying to the receiver the difference between the face value of such certificate and the amount due him m cash. The plaintiff contends that the certificate, with reference to which this offer was made by him, was the second one, in point of date, of the four in the receiver’s hands, and called for $5800. O’Connor testifies that he expressed himself as willing Ouiin’ngharo should take a certificate at par under his proposition- — he paying the difference in cash; that Cunningham asked for the first certificate— i. e. the one first in point of date (because it would be paid first by the city), but that he refused his assent to this, and only agreed that he should take a certificate (meaning one of the four) not specifying which one.

Plaintiff and his attorneys, it seems, had some conversation with ■Jos. Brewer, attorney for O’Connor, and with Chas. F. Buck, attorney for defendant, and the claim is set up that the latter agreed to the settlement upon the basis of the surrender of the $5800 certificate to plaintiff in full of his claim, he paying the difference in cash. Mr. Buck denies he agreed on behalf of defendant to such settlement, that he had no authority to arrange such a settlement, and that as far as he went was to say that he could see no objection to it, if defendant con'■sented. He says he was at that time, with Jos. Brewer, the attorney -of O’Connor, and was also the attorney’of the Germania Bank, whose president, J. O. Denis, was the receiver or custodian of the partnership of O’Connor and Cunningham, and while in these capacities he talked over the proposition of settlement with Cunningham and his •attorneys, he never assumed to have the authority of either O’Connor or defendant to bind them’by an acceptance of the proposition made by the plaintiff. '

The matter culminated in the following letter, to-wit:

“New Orleans, La., 28th April, 1897.

“Jos. Brewer, Esq.,

“Attorney-at:Law,

“City.

“Dear Sir:- — After seeing Mr. Denis about the Cunningham-O’Con-nor matter, I had some interview with Mr. Benedict and Mr. Richardson, and Mr. Benedict now proposes that Mr. Cunningham be given., the second certificate, which is dated October 12th, 1896, and is for $5800, offering to make up in cash the difference between this certificate and the amount of Cunningham’s claim. As there is a prior certificate for $5750, this proposition seems fair and reasonable to me, but I would prefer not to submit it to Col. Denis without first consulting with you about it.

“I understand that Mr. O’Connor 3*111 agree to whatever we and-Col. Denis may decide to do.

“Yours truly,

(Signed)

Chas. E. Buck.”'

“April 30th, Col. J. C. Denis, respectfully referred.

J. L. O’Connor.”

This letter supports the contention of Mr. Buck, that He had not' definitely asesnted to any settlement proposed by plaintiff, and that the matter would rest finally with defendant and O’Connor.

Instead of O’Connor and Brewer, his counsel, replying to the letter-signifying their assent, the former merely indorsed the letter over to defendant as “respectfully referred” to him, and thereafter neither defendant, nor Buck, his counsel, ever agreed to the proposition off settlement which plaintiff had made. Indeed, it would seem, that defendant, far from agreeing, within a few days thereafter sold all the certificates, including the one for $5800, which sale O’Connor, the-next day, approved, as we have seen.

Shortly after this the present suit was brought, the object of which is to compel defendant to deliver to plaintiff the certificate for $5800, and, in default of his so doing, to recover the amount of the same from him in money, less the difference between its face value and: the sum of $4984 admitted to be due plaintiff in his settlement with his partner, O’Connor.

The allegation is made of the offer of plaintiff to take the $5800' certificate at its face value, paying the difference as aforesaid, which offer the petition goes on to allege “was referred to Jos. Brewer and’ also Ohas. F. Buck, of counsel for J. L. O’Connor and by them approved, and by said J. L. O’Connor referred to said J. 0. Denis for settlement.”

And further that “said J. 0. Denis refuses and declines to honor said order and turn over skid certificate to petitioner, etc.”

Defendant’s answer recites his authority from the two partners to-sell the certificates, and to settle the indebtedness of the firm and certain charges against its members individually, and then account for the balance to them; that he did sell the certificates, and pay the debts as agreed on; and that, thereupon, he rendered to the parties a full statement of what had been done, which showed that after there-had been deducted from the $4984 due plaintiff, as agreed upon between himself and his partner, certain sums which he had authorized to be paid and a further sum equal to his share of the discount loss on the sale of the certificates, there was left to plaintiff a balance of $2519.10, which amount respondent tendered and deposited in court,, together with $9.75 court costs up to that point of the litigation. He-expressly denied that any agreement was made by J. L. O’Connor to deliver to plaintiff the $5800 certificate, as alleged in the petition, and' avers that no such understanding or arrangement was ever acquiesced-in or assented to by him (defendant).

On the issues as thus presented judgment below was in favor of defendant. Plaintiff was awarded the amount admitted to be due by flefendant and which had been deposited in court. He appeals.

We think the case was decided correctly.

There can be no doubt that the partners not only authorized defendant to sell tlie certificates and pay the debts, but went further and vested him with authority to settle the differences between the partners which had arisen or might arise, and bound themselves to-abide by his decision. And the agreement of January 22, 1897, which fixed the amount to which plaintiff was entitled in the settlement of" the partners between themselves, directed the payment of this amount out of the proceeds of the sale of the certificates.

Not only that, but it is distinct authority to defendant to charge-plaintiff with half of the discount on the sale of the certificates.

So that defendant had authority:

1. To sell the certificates and did sell them.

2. .To pay the debts of the partnership and of the partners, and did-pay them. . :;

3. To charge plaintiff with half the discount loss, and did so charge .him.

And under the general power vested in him to act as arbitrator, receiver, custodian and depositary, and considering the obligations he .assumed in connection with his acceptance of this trust, we do not think the subsequent agreement or arrangement, if any, between the partners, making or attempting to make another disposition of one of the certificates placed in his hands as part of the assets out of which to pay debts, was binding or enforceable unless assented to by defendant. •

Rut we do net find that any such “subsequent agreement,” as contended for by plaintiff, by which he was to have and take the $5,800 certificate, paying the difference as aforesaid, was consummated. The most that can be claimed for it is that negotiations to that end were ■ opened, conducted and progressed to the point of reaching the basis of consent; but the final act of consent and agreement either by O’Con-nor or by defendant was not consummated.

The attorneys representing O’Connor and defendant were not empowered to consummate the same, if they had undertaken to do so, and we do not think it is shown they undertook to do so.

The proof fails in point of showing that O’Connor agreed plaintiff should have and taire the $5800 certificate. On the contrary, instead cf indorsing his consent to this arrangement on the letter of April 28th, from Buck to Brewer, which mentioned the $5800 certificate as ■the one plaintiff proposed to taire, he merely turned it over to defendant with the written endorsement: “April 30, Col. J. O. Denis, respectfully referred,” as though it were his intention to leave to defendant whether the proposition of plaintiff should be accepted or de•clined, and this view is sustained by the fact that when, within a few ■days; defendant, instead of turning over one of the certificates to plaintiff, sold them all, his act in selling received the prompt approval •of O’Connor.

There being, then, no subsequent agreement and consent of the •partners, we find that defendant has in no wise departed from the terms of the mandate under which he accepted the trust of receiver, ■ arbitrator, custodian and depositary, and, hence, no cause of action against him, as asserted by plaintiff, has arisen.

We do not think this is a case where the principle of law invoked by plaintiff, that a custodian or receiver, as between two partners, can not disregard their orders in the interest of a third person also represented by the receiver in another capacity, applies.

Judgment affirmed.

Mr. Justice Monroe having decided the case in the lower court, takes no part in the ease here.


text:
    No. 12,930.
    State ex rel Walter Seaton vs. New Orleans and Carrollton Railroad Company.
    Syllabus.
    1. Action by mandamus to compel delivery of certificates of stock to alleged: owner.
    2. Resisted because former certificate by predecessor company, in lieu of which the certificate claimed was issued, is not produced and surrendered for cancellation.
    3. Willingness expressed, however, to deliver if security is given to indemnify against appearance of old certificate.

      4. Held : Not a case for the application of that part of C. C. 2279 which authorizes the court, “in case circumstances render it necessary,” to order security.
    5. Held, further, That respondent company may with safety deliver up the-certificate without security.
    APPEAL from the Civil District Court for the Parish of Orleans. —King, •/.

      W. B. Sommerville for Eelator, Appellee.

      Dart & Kernan for Despondent, Appellant.
    Submitted or briefs February 21, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The single question presented is whether, under the-facts disclosed by the record, the relator is entitled to obtain possession of certificate No. 134 for forty-one shares of the capital stock of the respondent company, which certificate was duly executed to him, or in his name, by respondent on the 10th of February, 1883, but never delivered to him.

Since that date it has remained in the possession of -respondent company, though the dividends on the stock have been regularly paid all these years to the relator.

The reason averred by respondent for non-delivery of the certificate is that relator could not produce and deliver for cancellation Certificate No. 1537, for a like number of shares of stock, which had been issued by the former New Orleans and Carrollton Railroad Company.

Relator could not produce and surrender the Certificate No. 1537, aforesaid, because, he says, the same was destroyed by fire in 1882.

The present New Orleans and Carrollton Railroad Company, xespondent herein, is the successor of the former corporation of that name. The charter of the latter (the old company) expired in 1883, and, thereafter, all its rights, assets, property, etc., became vested in the new corporation, organized in 1882, which continued the business of the old.

The relator was, at the time of this transfer, the owner of certificate No. 1537 in the old company, and under the convention between the two corporations by which the new absorbed the old and became its successor, he was entitled to the same number of shares in the new that he held in the old corporation.

Before, however, he could demand the delivery to him of his stock in the new company, he was required to surrender for cancellation his stock in the old company,

As he could not do this, the new company retained possession of his stock, though recognizing him as the owner thereof.

If at any time he had produced and surrendered the certificate issued by the old company, the new company would have delivered the certificate issued by it to replace the former.

This condition of affairs has continued from 1882 down to this time.

In 1898, relator advertised in the public press the loss of Certificate No. 1537, and through the same medium gave notice that application had been made for a new certificate.

It appears from the evidence that no other than relator has ever appeared as claimant of the certificate of stock; no one has ever demanded payment of dividends; no one has ever given notice of possession or ownership of the certificate issued by the former- company, .nor that held by the present company in the name of relator. Sixteen or seventeen years have now 'elapsed since the organization of the present respondent corporation, since the alleged destruction by fire of Certificate No. 1531 of the old company, since the execution in the name of relator of Certificate No. 134 of the present company.

Surely, if there existed outstanding, valid, adverse rights to those - claimed by relator, the same would ere this have been asserted.

To the proceeding by mandamus to compel delivery of the certificate, respondent company admits it stands on its books in his name, -that it was issued in his name, and that the company has possession of ih It claims, however, it cannot safely surrender the certificate until return is made of the old certificate; that it does not know the old certificate is lost or destroyed; and that in any event it is entitled to se•curity against the appearance of the old certificate in the hands of innocent third holders.

The judgment below directed the delivery of the certificate to relator. The trial judge did not consider that the circumstances justified the demand of respondent for security. The latter appeals.

It is apparent that the respondent company believes the relator to be entitled to the certificate, but, through abundant caution, looking to its own safety in the premises, wants either security holding it harmless against the possible reappearance of the old certificate, or else the judgment of the court that it may with safety deliver it up without security. It is taking no chances. It is evidently acting upon wise and prudent counsel.

Like our brother of the District Court we do not think this a case for the application of that part of C. C. 2219, which authorizes the court, “in case circumstances render it necessary,7’ to order security to be given to indemnify against the appearance of the missing certificate.

We consider its destruction by fire reasonably established. But if not destroyed, the fact remains it was issued in the name of relator; he testifies he never parted with its ownership; that it was never indorsed by him in blank, or otherwise, for pledge or transfer; and it is certain that no demand from any one has been made in all the sixteen years for transfer on the books to another claiming rights adverse to those set up by him. .

If any third person holds the missing certificate he has slept on his rights, and after this long lapse of time would hardly be listened to in a court of justice to assert rights of ownership or pledge antagonistic to those claimed herein.

Judgment affirmed.

Mr. Justice Monroe takes no part, as he was not a member of the court when this case was heard.


text:
    No. 13,090.
    State ex rel. Robert A. Hart vs. City of New Orleans et al.
    Syllabus.
    The proviso of Art. 186 of the Constitution of 1898 again held not to be retrospective in its operation. The doctrine announced in Succession of William Parham, 51 La., Ann., -, reaffirmed.
    IN EE Eobert A. Hart Applying for Certiorari, or Writ of Eeview, to the Court of Appeals for the Parish of Orleans.

      Thomas J. Kernan, Bari & TLornan for Eelator.

      W. B. Bommerville, Assistant City Attorney, for Eespondent.
    Submitted on briefs March 7, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The writ of review applied for was granted in the following order, made by this court, viz.:

“This application invokes the construction of Art. 186 of the Constitution of 1898. While that article is substantially a reproduction of Art. 176 of the Constitution of 1879, a new and enlarged clause was added to it in the later constitution, which clause has not yet received the interpretation of this court. For this reason, the preliminary writ applied for is granted. The-record of the case is ordered to be brought up, parties interested will be notified, and time given until Monday, March 6, 1899, in which to file briefs.”

The applicant had instituted in the Civil District Court for the Parish of Orleans a proceeding by mandamus against the city of New Orleans and the Recorder of Mortgages for the cancellation and erasure of the inscription of certain city taxes and tax liens and privileges for the years from 1874 to 1893, inclusive, appearing upon the public records and affecting certain properties of which he averred himself the owner.

The ground upon which he had based his demand for this cancellation and erasure was that the assessments, on which the taxes had been levied against the property, were null and void because made in the names of persons not the owners of the property at the time of the assessments, and because the tax liens and privileges recorded against the property were prescribed by three, five and ten years.

The judgment of the District Court, rendered in December, 1897, directed the cancellation and erasure of the tax inscriptions for the years from 1877 to 1893, both inclusive, but refused the relief sought as to the inscriptions for the years 1874, 1875, 1876, 1894 and 1895.

An appeal was prosecuted to the Court of Appeals for the Parish of Orleans. Pending this appeal the Constitution of 1898 wras adopted, with its Art. 186, and based on this article a new plea of prescription of three years was filed in the Court of Appeals by the relator, who was appellant.

That court considered the case from the standpoint as made up and determined in the District Court, and also in the new aspect as presented by the plea of prescription based on Art. 186 of the new Constitution.

Its decision, as to both, was against the relator, and the judgment of the District Court, ordering the cancellation of the tax inscriptions-m part and refusing same in part, was affirmed.

Whereupon relator applied to this court for its writ of review, urging that the Court of Appeals had erred, first, in holding the assessments complained of good, and the taxes predicated thereon valid, outstanding obligations, and, second, in denying the applicability of the-prescription announced in the last clause of Art. 186 of the Constitution of 1898.

From the order granted by this court, and heretofore quoted, it is apparent that the case is brought up only in so fax as may be necessary to review the interpretation put by the Honorable Court of Appeals upon Art. 186 of the Constitution aforesaid, in its effect and operation upon the state of facts disclosed by this controversy.

It is not considered, that the case as made up and determined in The District Court, and affirmed by the Court of Appeals, presents any ■question of law or fact justifying the bringing of it here under the •authority with which thi% court is vested by Art. 101 of the Constitution of 1898. In re A. J. Ingersoll, 50 La. Ann. 748.

Since the order was granted bringing up the case for review as to the interpretation put by the Court of Appeals upon the concluding clause of Art. 186 of the Constitution of 1898, this court has had occasion to consider that clause, and has placed the same construction upon it as did the Court of Appeals in the instant case.

Therefore, for the reasons assigned in the opinion of Mr. Justice Watkins, as the organ of the court, in Succession of William Parham, et al — on Rule against Tax Collector to cancel and erase certain tax privileges and liens — recently decided, it is ordered, adjudged and decreed that the judgment of the Honorable Court of Appeals in this cause be not disturbed, and the same is sustained as the proper adjudication of the issue presented in respect to the question arising on the interpretation of the proviso of Art. 186 of the Constitution.


text:
    No. 12,915.
    Hawley Down-Draft Furnace Company vs. Southern Chemical and Fertilizing Company, Limited.
    Syllabus.
    1. As parties choose to bind themselves in their business agreements so must .they be heid bound.
    2. Where, in a contract of sale of certain boiler furnaces, a guaranty as to results is stipulated, and a particular test is provided for to demonstrate these results, and the test fails in the particuiár guaranteed, the vendee may, in the absence of proof showing the test was conducted under conditions, accidental or otherwise, rendering it unfair, decline acceptance.
    APPEAL from the Civil District Court for the Parish of Orleans. —Bilis, J.

    Fenner, Henderson & Fenner for Plaintiff and Appellee.

      Branch K. Miller for Defendant and Appellant.

      Argued and submitted December 8, 1898.
    Opinion handed down February 6, 1899.
    Rehearing refused April 17, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff company submitted in writing a proposition to defendant company to furnish the latter three Hawley-Down Draft furnaces, and lower portion of fronts for ash doors, for the sum of $2160.00, These furnaces were for horizontal tubular boilers in .use at defendant company’s works in the city of New Orleans.

Certain guarantees as to the work of the furnaces were embodied in .the proposition of the company, as follows:

1. To consume 95% of the smoke, burning any grade of bitumin■ous coal.

2. Will increase the efficiency of the boilers over 35% over their .rated capacity.

3. Burning any bituminous coal will save over 15% in cost of fuel •over ordinary method of making steam, to be compared with smaller size boilers at the Louisiana Electric Light Company.

4. Burning a certain kind of coal (naming it) will evaporate over ••9 lbs. of water per lb. of coal making steam.

5. Burning any bituminous coal will evaporate water into steam as dry as ordinary furnaces.

'It was stipulated that final test was to be made on completion of the work of setting the boilers, making necessary attachments, connections, etc., and that if the furnaces failed to do as guaranteed -plaintiff company were to remove them and replace former setting at ■their expense.

Also that the furnaces were to remain their property until accepted and paid for by the purchaser.

Defendant company accepted the proposition in writing.

The furnaces’ were delivered, fitted to the boilers, all attachments added, all connections adjusted, and everything made ready for the test.

The test came first on the boilers fitted with the Hawley-Down furnaces, and three days later on those with the ordinary furnaces.

By agreement the horizontal tubular boilers with ordinary furnaces at defendant’s works were substituted for similar boilers at the La. Electric Light Company’s works. That is to say, the comparison of the results achieved by the boilers with the Hawley-Down, furnaces at defendant company's works was made with results obtained under similar conditions oil boilers with ordinary furnaces in use at defendant's works.

The test in each case was seven hours — from 9 a. m. to '4 p. m.

The result showed that 9.82 pounds of water per pound of coal had been evaporated during the seven hours by the boilers with the Ilawley-Down furnaces, and 10.1G pounds of water per pound of coal by the boilers with the ordinary furnaces.

This was a superior showing for the ordinary furnace over the Ilawley-Down furnace, and defendant' company, thereupon, refused to receive and pay for the furnaces supplied by the plaintiff company, basing its 'action on the failure of the guaranty of the contract.

This suit was the outcome.

It is brought to recover the purchase price of the three furnaces, the substantial averments of the petition being the sale and delivery of the furnaces, the compliance by plaintiff company with its obligations under the contract of sale, and the fulfillment of the guarantees of the contract. Mention is made of the test of the furnaces sold with the ordinary furnace, and it is represented that this test demonstrated, to the satisfaction of experts, the superiority of plaintiff’s furnaces over the other furnaces.

And the further allegation is made that defendant having expressed dissatisfaction with the results of the test, complainant had stood reády to make another test, which defendant company refused to assent to, except upon such onerous and unreasonable conditions with regard to the expense thereof and its imposition upon plaintiff company, that the latter was forced to decline it.

The defense is non-liability of defendant company because of the utter failure of the guaranties of the contract upon the practical application of the test as agreed upon; and it is averred that upon the failure of plaintiffs’ furnaces to render the service contracted to be performed, they, (plaintiffs) requested the privilege of another test, to which defendant company consented, provided the same be made immediately, or within two days thereafter, to which plaintiff agreed, and a day was fixed for the second test, on which day defendant was in readiness and prepared for the test, but plaintiff company declined' to proceed, stating it preferred the test should be postponed, not, however, naming another day for it.

It is further represented that nothing more in relation to the matter was heard from plaintiff for some two weeks, when a demand for payment of the price of the furnaces was made, and that, subsequently, to-wit, some twenty days after the first test was concluded, plaintiff company again requested a second test, to which defendant company again assented, provided the expense necessary and incident to the same be borne by plaintiff.

The answer then goes on to describe the situation existing at that time .at defendant company’s works, different from what it was when the first test was made, what would have to be done, what changes effected, in order to prepare for the second test, and avers that the same would have entailed a total expense of two thousand dollars, which, under the circumstances, it was contended, plaintiff company .should bear. The right of defendant to refuse the second test was averred, but its willingness to agree to same if the expense thereof were assumed by plaintiff, was signified.

There was judgment favorable to plaintiff in the court below and defendant company appeals.

The case presents mainly questions of fact. .

We find that this sale has never been completed, that defendant ha.s never accepted the furnaces, and that, under the contract, they remain the property of plaintiff company until accepted and paid for.

On the question as to whether defendant company was justified in refusing to accept them; we find that in the seven hours’ test provided for in the contract, the guaranty of* plaintiff company as to the superior evaporating- qualities of its furnaces failed. That is to say, the third guaranty mentioned in the contract, viz.: "Burning any bituminous coal will save over 15 per cent in cost of fuel, over ordinary method of making steam,” was not fulfilled.

As to the other guaranties of the contract plaintiff affirms their fulfillment, while defendant denies it.

Plaintiff does not claim that the third guaranty, quoted above, was fulfilled, taking the seven hours the test lasted as the gauge. But ■ does claim that it was fulfilled, taking the first three hours of the test as the gauge, at the end of which time, it is contended, the results as to evaporation on the boilers equipped with ordinary furnacés showed • only 7 92-100 pounds of water per pound of coal, whereas for the last four hours it showed 12 2-10. It is insisted, on behalf of plaintiff .company, that this showing as to the last four hours is abnormal, and demonstrated that something was wrong in the test. Just what was wrong is not asserted, nor does the evidence show it. There is an intimation that some of the water must have escaped in some other way than by evaporation into steam, but no proof of this appears. On the contrary, the evidence seems to negative the same.

The test provided for by the contract was for seven Hours. This being so plaintiffs contention as to the showing for the first three hours cannot be accepted. Nor does defendant admit its figures as to-7 92-100 evaporation for the first three hours, and 12 2-10 for the last four hours.

It insists that no figures were to be taken and no results calculated, except those appearing at the end of the seven hours, and that these showed 10 16-100 evaporation.

Plaintiff introduced expert testimony to show the results thus obtained were abnormal, and, because abnormal, the test an unfair one.

The trial judge took this view of the case and, hence, his decree1 favorable to plaintiff company.

But judging the case by the testimony in the record we can reach no other conclusion than that plaintiff company has not sustained its-contention in this regard.

Just as much expert testimony, and apparently as strong and' weighty, is found in support of the contention of defendant company that the results achieved at the test on the boilers with the ordinary furnaces, were not abnormal, as is found in support of the other contention that they were abnormal.

Under the circumstances, however, while no second test was provided for by the contract between the parties, plaintiff’s request for another test was a reasonable one, and had it been refused the consequences thereof might well be visited on defendant company by an affirmance of the judgment below. But we do not find that defendant refused it. On the contrary, while plaintiff’s representative at the test entered no formal objection, nor filed any protest, at the close1 thereof, when, after ■wiring the result to his principals in Chicago and receiving their instructions, he asked for another test, the manager of defendant company agreed to it and the same was to he conducted the next day, but plaintiff’s representative did not appear until three o’clock of that day and then asked for a postponement until Monday. ' On Monday he informed defendants’ representative he had been ordered to return North and that another expert would he sent to conduct the test on behalf of plaintiffs. It does not appear that this second representative came for the purpose of conducting the test, and the next demand made was by plaintiff’s attorneys, some two weeks later, for payment of the price of the furnaces.

And when, in connection with this demand, they expressed a desire or willingness for a second test, defendant company answered that the situation at their plant was then such that it would entail an expense of some two thousand dollars to make another test of the HawleyDown furnaces against their ordinary furnaces, and a reasonable explanation was made why this was so.

They added that plaintiff company would have to hear this expense.

It thus appears that a second test was not denied by defendant company, and the same might have been made without the extra expense had plaintiff chosen to proceed with it in due time. It was not to be expected that defendant would keep matters in statu quo awaiting plaintiffs’ pleasure in this regard.

Changes and improvements were needed at defendant’s works and these were made, and thereafter the extra expense referred to would have to he incurred to enable the test to he made at their works. It does not appear that plaintiff offered or demanded that the test be made elsewhere than at defendant company’s plant. It, perhaps, might have been made elsewhere without the extra expense, and, in this connection, it must he borne in mind that the contract stipulated for the test of the boilers with ordinary furnaces to he made at the La. Electric Light Company’s plant.

This stipulation, it is true, had been waived at the first test and the same had been conducted on the boilers with ordinary furnaces at defendant’s plant; hut when the situation had changed at defendant’s works and the second test could nbt he made there without the extra expense, it might still have been in plaintiff’s power to have conducted the same at the place named in the contract — the works of the La. Electric Light Company.

Under the circumstances we cannot say that defendant was in-fault with regard to this second test.

As these parties chose to hind themselves in their business agreement so must they he held bound.

While the testimony shows the Hawley-Down Draft furnace to he a superior furnace, the test and the only test the parties chose to provide as showing its superiority failed, and as this was a guaranty of the contract of sale without the fulfillment of which there was to be no sale, defendant company had the legal right to refuse acceptance and payment.

It follows that plaintiffs must be non-suited on the principal demand of their petition.

On July 8th aud 12th, 1895, they sold defendant certain small furnishings aggregating- fourteen and 05-100 dollars. These appear upon the account annexed to the petition and do not seem to be contested.

Judgment in their favor for the same must be given.

As to defendant’s demand in reeonvention, we think the interests of .justice require that it, too, be disallowed as in case of non-suit.

It is, therefore, ordered, adjudged and decreed that the judgment •appealed from be annulled, avoided and reversed, and that plaintiff’s demand for two thousand, one hundred and sixty dollars, the contract price for three Hawley-Down Draft furnaces, be rejected as in case of non-suit.

It is further ordered, etc., that plaintiff do have and recover of defendant the sum of fourteen and 05-100 dollars, remainder of account sued on, with legal interest from judicial demand until paid.

It is further ordered, etc., that defendant’s demand in reeonvention be rejected as in case of non-suit, and that costs of the lower court be borne by defendants, those of appeal by plaintiffs.


text:
    No. 13,137.
    The Brown Shoe Company Vs. J. N. Hill & Bro., et al.
    Syllabus.
    1. The ruling -in Toole vs. Minge, 50th Ann., 748, reaffirmed as a correct inter* pretation of the true meaning and intention of Art. 101 of the Constitution of 1898.
    2. Sec. 2 of Act 191 of the Acts of 1898, in declaring that the party cast in the Court of Appeals, or other person in interest who may feel aggrieved by the judgment rendered, shall in any case have the right to bring the ■cause before the Supreme Court for its review and determination, goes beyond tbe constitutional intendment, and, as far as it does, is not to be followed.
    3. Where the legislative interpretation of a constitutional provision conflicts with the judicial interpretation thereof, the latter prevails.
    4. A rule of this court requires litigants, making application for the writ of review, to annex to such application a copy of the opinion of the Court of Appeals complained of. Hereafter no application for the writ will be considered unless the opinion of the Court of Appeals is so annexed.
    IN RE The Brown Shoe Company Applying for Certiorari or Writ of Review to the Court of Appeals, Second Circuit, State of Louisiana.

      C. 8. Wyty} for Relators. ,
    Submitted on brief April 8, 1899.
    Opinion handed down April 17, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is not a case in which the writ of review ■should be granted. We took occasion in .the case of J. O. Toole vs. C. H. Minge, 50th La. Ann. 748, to lay down the rule which would govern the action of the court in respect to applications for the writ. It was there said, speaking of Art. 101 of the Constitution of ^,898: “It was not intended by a resort to the power here granted to make of the Supreme Court a sort of superior court of appeals over the Circuit Courts, to take jurisdiction of, and hear and determine any and all cases that may have been decided by the latter courts in the exercise of their legitimate, constitutional jurisdiction. In other words, it was not intended that the Circuit Courts of Appeal should be made merely a stopping place for causes between one hundred dollars and two thousand dollars on their way from the District Courts to the Supreme Court.

“It was, rather, intended that the power thus lodged in the Supreme Court should be exercised only, in special or extreme cases, whose peculiar circumstances as to the facts or the law governing the same justify, in the opinion of this court, a resort to it.

“For example, when the Court of Appeals refuses to be guided, in a clear case, by the well-established jurisprudence as defined and laid down' by this court, a case would be presented warranting this court in sending down its writ to bring up such cause for review and determination. This might be necessary to enforce uniformity of jurisprudence throughout the State in the courts thereof.

“Other'cases for other reasons may arise justifying a resort to the writ — care being always taken against its abuse, to the impairment of the dignity and power and usefulness of the Courts of Appeal, and protracting litigation and deferring the final enforcement of just rights.”

We have, as far as possible, in subsequent eases, adhered to the ruling in the Toole case, frequently citing the same as . a controlling authority in respect to applications for the writ of review. We-again affirm it as a eorect interpretation of the true meaning and intention of Art. 101 of the Constitution.

In saying this we are not unmindful of Act 191 of the Acts of 1898,, entitled “An Act relative to Courts of Appeal and to carry out the provisions of Art. 101 of the Constitution of this State.”

Sec. 2 of that act, in declaring that the party cast in the Court of Appeals, or other person in interest who may feel aggrieved by the judgment rendered, shall, in any case, have the right to bring the cause before this court for its review and determination, goes beyond the constitutional intendment, and, so far as it does, is not to be followed.

The case of Toole vs. Minge, and other eases subsequent thereto,, defining the true meaning of the Article of the Constitution, were decided prior to the enactment of the statute referred to, and in solar as the legislative interpretation of the Constitution conflicts with the judicial interpretation thereof, it is familiar doctrine that the latter prevails.

The, application now before us, neither in its law or facts, presents such a special case as that contemplated by the ruling in Toole vs. Minge, and were we to grant the writ and bring up the case for review, it could be only upon the hypothesis that the Constitution intended to give a further and additional right of appeal to litigants who may be cast before the Court of Appeals.

This, clearly, was not within the contemplation of the framers of the Constitution.

In cases, however, presenting features of law or fact justifying the granting of the writ, and it is granted, this court has the same power- and authority in reference to the decision of such cases as if the same-had been brought before us by direct appeal from the court of the first instance.

In the instant case the application for the writ seems to proceed upon the idea that the averment of errors of law alone, on part of the Court of Appeals, justifies the granting of the writ.

That this is a mistaken conception of the intention of Article 101 of the Constitution, and of the scope of the powers it confers, is shown when we come to consider that, if this were so, every case, practically, decided by the Courts of Appeal would be reviewable here, and this would, indeed, be making of the latter court a mere “stopping place for causes between one hundred dollars and two thousand dollars on their way from the District Courts to the Supreme Court,” and would certainly be to the impairment 'of the dignity and usefulness of the Courts of Appeal and to the protracting of litigation.

We do not overlook that, in the present application, the statement is made that the Court of Appeals, in one of its rulings, held contrary to the ruling of this court in Area & Lyons vs. Milliken, 35th La. Ann. 1150, on a similar point. But an examination of that case, in connection with the ruling aforesaid of the Court of Appeals, does not satisfy us that it is necessary to bring this case up for review in order to enforce the principle of uniformity of jurisprudence.

It is proper to remark here that the rule of this court requires litigants, making application for the writ of review, to annex to their application a copy of the opinion of the Court of Appeals in the case.

While we have not applied the aforesaid rule in this particular ease, it is now announced that hereafter no application made to this court for its writ of review will be considered unless the opinion and' decision complained of, or a copy thereof, is so annexed.

We are constrained to hold that the case presented does not justify the writ asked for, and, accordingly, the same is denied.


author: Monroe,. J.

text:
    No. 12,871.
    A. Delpit et al vs. Lizzie Young.
    Syllabus.
    1. Where the nullity charged against a marriage is relative and not absolute,, the contracting parties retain their status, as married persons, until such1 nullity is ascertained and declared by a competent court.

      2. In such case the father of the minor, emancipated by marriage, has no-right of action, in himself, to sue for the nullity of such marriage, ana his minor son does not need his aid in bringing the suit.
    3. Nor does the female minor, emancipated by such marriage, need a tutor or curator, nor the authorization of her husband, nor of the court, in order to enable her to defend such suit.

      4. An appellee who flies an answer to the appeal praying that the judgment appealed from be affirmed, will not be heard, through the argument of counsel, complaining of the basis upon which such judgment rests.

      5. The words “mistake in the person,” as used in Articles SU and 110 of the Civil Code .which prescribe the cause for which marriages may be annulled, do not mean, mistake in the character of the person, or in his, or her, attributes, condition in life, or previous habits.
    ON APPEAL from, the Oivil District Court for the Parish of Orleans. Ilightor, J.

      Albert Voorhies for Plaintiff, Appellant.

      Thao. Ootonio for Defendant, Appellee.
    Argued and submitted March 24, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Monroe,. J.

Statement of the Case.

Auguste F. Delpit, “acting in his own behalf and as natural guardian of George Augustin Delpit, his minor son,” and George Augustin Delpit, “suing for himself,” allege that George Augustin Delpit, then twenty years old, was married in this city, September 28th, 1897, without his father’s knowledge or consent, to Lizzie Young, the defendant, and that said marriage was, and is, null and void for the reasons: 1. That said Delpit was a minor, living under the paternal roof, and his father and mother have never consented to his marriage, but objected thereto as soon as they were informed of it, and still object. 2. That said Delpit, in consenting to said marriage, was deceived and imposed upon, and was in error as to the person whom he was marrying, in that she represented herself, and he believed her, to be a virtuous •woman, whereas, as he has been informed since said marriage, she had previously been living in illicit connection with divers persons— one of whom is named in the petition. It is further alleged that said Deipit would not have married defendant if he had not been led to believe that she was virtuous and of previous good moral character.The prayer of the petition is that the marriage be invalidated and declared null and void.

Defendant excepted on the following grounds:

1. That she is a minor and incompetent to stand in judgment.

2. That as a married woman she is incompetent to stand in judgment without the authorization of her husband, or the court, and that no such authorization has been obtained.

And, in the event that these exceptions are overruled, she further excepts:

That the allegations of the petition are too vague and indefinite, and that they disclose no cause of action..

These exceptions were argued before, and taken under advisement by, the learned judge a, quo, April 25th, 1898. Upon .May 4th, following, a supplemental petition was filed in which plaintiffs allege that immediately after the discovery by him of defendant’s immoral cohabitation before marriage, as charged in the original petition, George Augustin Deipit broke off all connection, and has never since cohabited with her. Upon this supplemental petition there was an order of court authorizing it to be filed, and authorizing the defendant to stand in judgment, but the supplemental petition was not served upon defendant, nor was she cited to answer it, and thereafter, in that condition of the case, there was judgment maintaining the “exception,” and dismissing the suit.

The plaintiffs have appealed, and the defendant has filed an answer to the appeal praying that the judgment be affirmed with damages as for frivolous appeal.

In the course of his oral argument, counsel for defendant called the attention of this court to the fact that the supplemental petition had not been served on his client and that she had not been cited to answer it; and suggested that the averments contained in it should be disregarded in passing upon the exceptions, which, as he claims, were only addressed to the original petition.

It will be observed that the defendant is not complaining of the judgment of the court a qua, but, on the contrary, has filed, in this court, a written answer to the appeal, praying that that judgment b« affirmed. The suggestion, therefore, that the judgment in question lacks the essential elements of citation and service of petition, quo ad, .at least, so much of plaintiffs case as is stated in the supplemental .petition, is illogical. He cannot attack the basis upon which the judgment rests and, at the same time, ask that the judgment be affirmed, and, as the latter request has been placed of record, as part •of the pleadings in the case, we are of opinion that he cannot be heard to urge the former by way of argument. Gayoso de Lemos vs. Garcia, 1 N. S. 326-7.

Healing with the question of the capacity of the parties litigant, it is evident that the nullity charged against the marriage is relative, and not absolute, from which it follows that until said marriage is annulled by a judgment of a competent court the contracting parties •occupy the status of minors emancipated by marriage. This being the case, the husband needs no tutor or guardian to aid him in bringing the suit, and his 'father, having no right of action on his own account, is a supernumerary in the ease. If the wife’s status as a minor, emancipated by marriage, could be disassociated from her status as a married woman, the same thing might be said of her. '“The minor, emancipated by marriage,” says the Code, “can appear iri courts of justice without the assistance of a curator. The husband who is a minor, can also authorize his wife to appear therein, whether she is a minor or of full age.” C. C. 300. See also C. C. 362. C. P. 110.

Considering the question with reference to defendant’s status as a married woman, it was said in Favaron vs. Rideau, 14th, Ann., 805; that, “the object of the law in requiring the authorization of the husband, or court, before the wife can be sued, is fully accomplished when the husband joins the wife in the answer to the suit, even if they have not been designated as husband and wife in the petition,” and the reason which underlies this construction applies with greater force to the present case, where the husband does not authorize the wife, merely by implication, to appear in court, but invokes the authority of the court to compel her to appear; whilst, the court, upon the other hand, could not refuse to hear her, without denying a sacred right, guaranteed by the fundamental law. Laooste et al. vs. Guidroz et al., 47th Ann., 295.

Considering, now, the exception of “no cause of action;” it is addressed to the two following propositions which the plaintiff, husband, relies on, as embodying his cause of action, to-wit.:

1. That tli© plaintiff was a minor when the marriage took place, .that he did not have the consent of his parents, and that he did not ■furnish proof of such consent to the officer to whom he applied for ..permission to marry, and, hence, that the marriage was, and is, null.

2. That inasmuch as he was led to believe that he was marying a •■virtuous woman, when in point of fact the defendant had previously led an immoral life, there was a mistake in the person within the .meaning of articles 91 and 110 of the Civil Code.

The first of these propositions is answered by article 112, Civil Code, which provides that “The marriage of minors contracted without the -consent of the father and mother, cannot, for that cause, be annulled.”

The second proposition finds a divided support in the refined analyses of some of the commentators on the Code Napoleon. The following are the provisions of that Code, and of the Civil Code of Louisiana, bearing upon the subject: 1

“C. N. 146. II n’y a pas de mariage lorsqu’il n’y a point de con•sentement.

“C. C. 91. No marriage is valid to which the parties have not freely consented. Consent is not free:

“1. When given to a ravisher, unless it has been given by the ■party ravished after she has been restored to the enjoyment of liberty.

“2. When it is extorted by violence.

“3. When there is a mistake respecting the person whom one of the parties intended to marry.

“C. N. 180. Le mariage qui a été contracté sans la consentement libre des deux epoux, ou de í’un d’eux, ne pent étre attaqué que par les ■epoux, ou par celui des deux dont le consentement n’a pas été libre.

“Lorsqu’il y a eu erreur dans la personnel, le mariage ne peut étre ■attaqué que par celui des doux epoux qui a été induit en erreur.

“C. C. 110. Marriages celebrated without the free consent of the married persons, or one of them, can only be annulled upon application of both the parties, or of that one of them whose consent was not free. When there has been a mistake in the person, the pai’ty laboring under the mistake can alone impeach the marriage.”

Under the old law, in France, the only exception to the rule that nullity of marriage, by reason of error in the person, existed only where the error was one of physical identity, was where a slave was taken in marriage in the belief that such slave was free.

Pothier. Traite du contrat de marriage. Nos. 808, 310 and 811.

When the Code was under discussion before the council appointed, by him, the Emperor Napoleon, then, as Marcade remarks, “only thirty-one years of age,” took a very active part in that discussion, and appears to have given the assembled jurisconsults his views in very plain language, “exercising,” according to the author mentioned, “a much greater influence than one could believe.” He told them that they had not even the idea of the institution of marriage, and that a particular article, which they had favorably considered, would produce results in conflict with his system, and the proposed text was thereupon rejected. Among other things, in the. same connection, lie appears to have insisted that “error in the person,” as a ground for annulling a marriage, should he considered as meaning the same thing, or as including within its meaning, “error in the character, attributes or quality of the person.”

Thus, he is quoted as having said to the Council:

“Rappellez-vous ce que vous avez dit sur les nullités. L’erreur des qualites, que vous appelez erreur du personne, permet de faire annuler le mariage.”

Marcadé, Vol. 1, p. 475.

Nevertheless, the articles to which he referred were incoi'x>oi’ated in the Code as they have been hereinabove quoted, and this, notwithstanding the fact that as the law was then construed, the most that was claimed was that “error in tho person,” as a ground of nullity, extended to, and included, errar in social, as well as physical, identity. That is to say; that it included, or might include, a case where a woman, marrying a man in the belief that he is a nobleman, of high social position, learns afterwards that he is a liberated convict. The only exception admitted by Pothier, however, to the rule of physical identity, is in the case of a slave supposed to be free, whilst as to other claimed exceptions, he says: “II est en autrement lorsqu’elle ne tombe que sur quelque qualité de la personne. Par exemple si j’ai épousé Marie, la croyant noble, quoi qu’elle soit de la basse roture; ou la croyant vertueuse quoi qu’celle se fut prostituée; ou la croyant de bonne renommé quoi qu’elle ait été flétrie par la justice; dans tous ces cas, le mariage que j’ai contráete avec elle ne laisse pas d’etre valable, nonobstant l’erreur dans laquelle j’ai été a son sujet.” Traito du eontrat de Mariage No. 310.

It is said by Marcade that the change in the French law was effected, more.particularly, by the second paragraph of article 380 of the Oode Napoleon, which is fairly translated by the second paragraph of article 110 of our Oode, and, so translated, reads:

“Where there has been a mistake in the person, the party laboring, under the mistake can, alone, impeach the marriage.”

And the learned author claims that this paragraph contemplates error in the qualities of the person, father than in the physical identity, and that it can contemplate nothing else. He, therefore, considers as embraced within its meaning such cases as. the following, to~ wit:

Where one of the parties proves to be impotent. Where one marries' a prostitute, believing her to be virtuous. Where one, being a Catholic, marries a person who has taken vows. Where one marries a liberated convict, believing him to be hbnorable. Where one, being a Catholic, contracts a civil marriage with a person who thereafter refuses to receive the benediction of the church.

Upon the other hand he thinks that to annul a contract so sacred as that of marriage, the error should be profoundly grave, and that it should be personal with respect to one of the contracting parties; and' that if one marries a person believing him to possess talent, or to be-versed in science, when he has, and is, neither; or marries a person, believing him to be rich, when in fact he is poor; or believing him to be noble, when in fact he is plebian; the marriage ought not to be annulled for these reasons.

He also thinks that the status, or, perhaps it is, the probable sensitiveness of the party who is deceived, ought to' be considered, for he-says that the prostitution of the woman, and the fact that the man-has been a convict ought not to be considered if the other contracting party, in the first case, is himself, a person of no great morality; and' if, in the second case, it turns out that the convict was more unfortunate than criminal.

And — finally—he concludes that the whole matter ought to be left1, to the discretion of the judge, to determine, in any given casep whether either party to a marriage contract has been mistaken or deceived in the other, and if so, whether the matter is sufficiently serious to justify him in declaring the contract null and void.

The author mentions but two eases in which his theory had been.applied under the Code Napoleon. The one, decided in 1811, where-one of the contracting parties proved to be a priest, and the other, de~ (Cided in 1827, where an adventurer passed himself off, in marriage, as fin Italian baron, — both marriages being annulled.

Demolombe seems to be much of the same opinion as Mareadé, ■whilst other French writers shade off into various degrees of perplexity.

It will be observed that the Civil Code was first adopted in Louisiana before either of the cases referred to by Mareadé had been decided, and hence, in all probability, at a time when the interpretation of the French law as given by Pothier and the other writers still obtained and there was no reason to suppose that any other interpretation would be placed on it.

Our present Code was approved, as an act of the General Assembly, in March, 1S70. It was adopted in the English language, by a legislative body composed, mainly, of English-speaking members, and, whilst we are not informed as to how many of them were familiar with the Code Napoleon, or with the commentaries upon that Code, we think it probable that the language contained in the articles under consideration was used rather because it was found in our previous Codes than because of any .intention to adopt the theories, of the French commentators on the Code Napoleon. So that, if we are to be influenced by the French interpretation of the French law, as operating on the minds of our legislators, the logical thing would seem to be, not to endeavor to find out what that interpretation is, amid the multiplicity and contrariety of opinion of the later writers, but to go back to the time of the adoption of our Code of 1808, when, as we have seen, "erreur dans la personne ” was interpreted to mean but little, if anything, more than error in the physical identity of the ■person.

Beyond this, it must be remembered that the views of these later commentators are to be considered with reference to the conditions by which they were surrounded, and for the purposes of which they interpreted the law. There was a State church and a national religion; and a social fabric built up of classes separated by wide and deep gulfs. There were strong influences, therefore, pulling in the direction of that construction of the law whereby the marriage of a priest, vowed to celibacy, would be decreed null, and whereby the marriage of an adventurer, masquerading as a nobleman, would be similarly dealt with. But in Louisiana the church and State are separate; we have no distinctions between princes and peasants, but all men are .born free and equal, and marriage, in the eye of the law, is purely and absolutely a civil contract. The law prescribes who may enter into it; how it may be entered into; and specifies the causes for which it may be annulled or avoided.

Under these circumstances it seems better to interpret our marriage law without the aid of criticism which is inappropriate to the conditions under which it was enacted and to which it is intended to apply. And, so interpreting it, we think that if the General Assembly had .intended that a marriage should be annulled when the one party mistakes the character, the social standing, the pedigree, the acquirements, the pecuniary means, the habits, the temperament, or the religion of the other, or when the one party, after the marriage, dis■covers “redhibitory” vices in the other, some language, beyond the words “mistake respecting the person,” would have been found to express that intention. If the marriage of a woman is to be annulled because she was unchaste before marriage, what is to be done in the case of a man ? If the courts are to determine whether the, mistake is sufficiently serious, how are they to deal with people who, having united themselves together for better, for worse, in sickness and in health, etc., present a case where the one develops hereditary disease, such as consumption, or insanity, of the possibility of which the •other was ignorant; or becomes confirmed in a pre-existing alcohol or •opium habit of which the other had no knowledge? No such doctrine .as that propounded by the learned counsel for the appellant has, as yet, found a place in our jurisprudence, and the language of our Code, interpreted according to familiar canons of construction, does not justify its introduction.

In 1897, a case was presented to the High Court of Justice in England where it appeared that the defendant, wife, was actually pregnant at the date of the marriage, without the knowledge of the husband, and gave birth to a child shortly afterwards, thus imposing upon the unfortunate husband a child not his own. The court reviewed the entire jurisprudence of the English courts, compared it with that of-the continent of Europe, criticized adversely certain American cases, and in a most elaborate and exhaustive opinion, reached the conclusion that, by the law of England, error as to the chastjty of the wife is not such a “mistake as to the person” as will entitle the deceived husband to annul the marriage, such an error not involving the want of consent for which alone marriages can be annulled under the English law.

Moss vs. Moss. (Otherwise Archer.)

Law Reports. Probate Div., p. 262.

The case is not one in which the appellee is entitled to damages-The judgment appealed from is therefore affirmed at the cost of the appellant.

The Chief Justice and Mr. Justice Blanchard dissent.


author: NiCHOLLS, C. J.

text:
    No. 13,112.
    The State of Louisiana vs. Alexander Sinegal.
    Syllabus.
    1. The punishment to be inflicted upon an accused convicted under an indictment, charging Kim with violation ol Section 791, of the Revised Statutes, as amended by Act No. 43 of 1890, being "imprisonment at hard labor, or otherwise,” the issues in the case were triable by a jury of five.
    2. Although a razor may not be eo nomine a dangerous weapon, it may become such by its use, and a conviction under Section 791 of the Revised Statutes in which the accused is charged with cutting with intent to murder, with a dangerous weapon, to-wit: a razor, is justified if supported by proper evidence.
    ON APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupre, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      O. F. Garland for Defendant, Appellant.
    Submitted on brief April 22, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

NiCHOLLS, C. J.

The defendant was indicted for having feloniously, wilfully and of his malice aforethought, cut one Alfred Jean, with a dangerous weapon, to-wit., a razor, with the intent feloniously, wilfully and of his malice aforethought to kill and murder him, contrary to the form of the statute of Louisiana in such cases made and provided.

Ho was tried by a jury of five, which returned a verdict against the prisoner of guilty of cutting with a dangerous weapon with intent to kill, whereupon the court sentenced him to be imprisoned in the State penitentiary for the space of one year.

He appealed.

Before sentence was pronounced upon him defendant moved in arrest of judgment for the reason:

1st. That he was indicted under Section 791 of the Revised Statutes. That the penalty under the same was necessarily imprisonment in the State penitentiary with or without hard labor. That Act No. •14 of 1890 which provides for cutting with intent “to kill” (not with intent to murder) makes the penalty necessarily, imprisonment in the penitentiary with or without hard labor.

That Article 116 of the Constitution of 1898 provides that all cases (where the punishment is necessarily imprisonment at hard labor, which means m' all cases where the punishment is necessarily in the State penitentiary) should be tried by a jury of twelve, nine of whom must concur to find a verdict.

That as shown by the minutes he was tried, by a jury of five only, that this was illegal and in violation of his rights in the premises.

2nd. The indictment 'charged him with cutting with a dangerous weapon, to-wit., a razor, with intent to kill and murder.

That the Supreme Court having decided that a razor was not a dangerous weapon, he could not be legally convicted under either Section 791 of the Revised Statutes or Act No. 44 of 1890, both of which required the cutting to have been done with a dangerous weapon.

Opinion.

Appellant evidently relies upon the decision of this court in State vs. Nelson, 38 Ann., 942, in support of his proposition that he could not have been legally convicted of having cut a person with a dangerous weapon with intent to kill or murder when the weapon with which the cutting- was done was declared in the indictment to have been a razor.

That case was relied upon also by the accused in State vs. Boyd, 39 Ann., 942, but we held that it afforded him no relief.

The reasons assigned by the court for that declaration are adhered to.

We said: “It may well be that the accused could not under Section 932 R. S. have been convicted of having a dangerous weapon concealed' on or about his person because a pocket knife is not eo nomine a dangerous weapon, but it does not follow that when under Section 194 the-charge is that the accused did with such a knife feloniously inflict a severe wound less than mayhem, such weapon may not be considered by the court and jury as a dangerous weapon by the use made of it within the meaning of that section, particularly as the description of the weapon is not necessarily required by the statute, which merely mentions a dangerous weapon, i. e., any dangerous weapon whiciL may be so by the use or in itself.

Under the charge evidence could well have been received, and if deemed sufficient the jury could have convicted the accused for having with a dangerous weapon inflicted a wound less than mayhem on the body of another person.”

We Have never said, nor could we say, that a razor when used by a-person in cutting another with the intent of killing or murdering him, would not be a dangerous weapon, for as said by Mr. Justice Fenner in State vs. Nelson, the records of our criminal courts show that it has been especially selected as the instrument for carrying out such a purpose and to have been frequently effectually used.

See on this subject: 10 Ann., 141, State vs. Jacob; 31 Ann., 849, State vs. Martin; 33 Ann., 1224, State vs. Lowry; 37 Ann., 467, State vs. Jackson; 38 Ann., 946, State vs. Nelson; 39 Ann., 205. State vs. Wilson; 39 Ann., 943, State vs. Scott; 41 Ann., 345, State vs. Brown; 41 Ann., 777, State vs. Hertzog; 44 Ann., 584, State vs. Alfred; 47 Ann., 159, State vs. Braxton.

Article 116 of the Constitution of 1898, referred to by appellant,, reads as fallows: “The General Assembly shall provide for the selection of competent and intelligent jurors. All eases in which the punishment may not be at hard labor shall until otherwise provided by law, which shall not be prior to 1904, be tried by the judge without a-jury. Cases in which the punishment may be at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict. Cases in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom concurring may render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.”

The indictment in this case does not in terms mention under what particular statute it was brought, but it states the facts.

Appellant’s counsel argue upon the assumption that his client was charged under Section 792 of the Revised Statutes.

The judge in sentencing the defendant declared that the jury had! returned a verdict finding accused guilty under Act No. 44 of 1890, of cutting with a dangerous weapon with intent “to kill.”

The charge itself as made was of having cut Alfred Jean with a dangerous weapon with intent to “murder.”

The phraseology of the indictment is that of Section 791 of the Revised Statutes as amended and re-enacted by Act No. 43 of 1890.' The punishment affixed as to follow from a conviction under the latter section, as amended for cutting with a dangerous weapon with intent to murder, as it reads, is “imprisonment with or without hard labor, for not more than three years;” that affixed for a conviction under Act No. 44-of 1890, for cutting with a dangerous weapon with intent to kill, as it reads, is “imprisonment with or without hard labor for not more than three years.”

It will be seen that the punishment affixed is not necessarily “imprisonment at hard labor” but “imprisonment at hard -labor or otherwise.”

We are not authorized to expunge the words “or otherwise” from the law. Those words remaining leave the character of the imprisonment as to whether it should be at hard labor or not, discretionary. That may not have been the intention of the law makers, but they have expressed themselves in language so unambiguous as not to admit of ¡judicial construction.

Under the terms of the indictment and of the law applicable to it, as framed, the charge was triable under the Constitution, by a jury of five.

The examination of the question submitted led to an examination by us, of all the statutes of the State covering “crimes against the person.”

Among them our attention was attracted to Section 792 of the Revised Statutes and Act No. 59 of 1896 amending that section. Section 19£ prior to amendment read as follows: “Whoever shall assault .•another by wilfully shooting at him, or with intent to commit murder, rape or robbery, shall on conviction thereof be imprisoned, at hard labor not exceeding two years.”

Under the amendment of 189G to that section the punishment was ■.changed to imprisonment at hard labor not more than twenty years.

It will be noticed that under the section originally and as amended the character of the imprisonment was fixed absolutely as imprisonment at hard labor; there was no discretion left with the court on that point.

Had the defendant in this action been indicted, not for cutting with a dangerous weapon, with intent to commit murder, but simply Tor “assaulting” Alfred J ean with intent to commit murder, and had he been found guilty, the character of the imprisonment to which he would have been sentenced under such a charge would, under Section 792 as amended, have been necessarily imprisonment at hard labor, and in view of that fact, defendant would have been entitled to a trial ■by a jury not of five but of twelve.

Now the actual cutting of a person with a dangerous weapon with intent to commit murder, is a much graver crime than a mere assault ■aapon a person, with intent to commit murder, the assault not ending-in an actual wounding without reference to the employment of a weapon, and yet we find, following the language of the law and the 'Constitution the graver crime triable by a jury of five and the far less ■serious one by a jury of twelve.

The party guilty of the lesser crime, if convicted, would have to be necessarily sentenced to the penitentiary at hard labor, while the one .guilty of the higher crime, might possibly escape a sentence to hard .'labor, and by reason of this possibility he would be forced t-o submit to a trial by a jury of five.

However anomolous this situation may( be, we are powerless, we .think, to control it.

Wo find no reason to set aside the verdict or judgment.

The judgment is hereby affirmed.