text:
    No. 3954
    Second Circuit (Second Division)
    WALKER, JR., v. SPENCE ET AL.
    (May 7, 1931. Opinion and Decree.)
    Blanchard, Goldstein, Walker & O’Quinn, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendants, appellants.
   CULPEPPER, J.

Upon the petition of more than 60 per cent of the property owners of Caddo avenue from the north line of Sixty-sixth street to the south line of Fifty-eighth street, of the town of Cedar Grove, the municipal áuthorities passed an ordinance calling for the paving of that thoroughfare. Bids were called for and a contract awarded, and the work -performed. The procedure was under Act 187 of 1920.

After the contractors had completed the work, the municipal authorities passed an ordinance accepting the work and levying an assessment against the property abutting on that part of the street which was paved. J. J. Platt was the then owner of record’ of the property abutting the street, described, as the W. % of lot 16, and lots 17 and 18 of block C, Sóuthside Park subdivision, having acquired it by purchase, partly for cash and partly on terms of credit, from M. C. Spence and G. M. Lead-man, on July 8, 1924. The ordinance, as recorded, levying the assessment against the property on Caddo avenue, inadvertently omitted that above described. The ordinance adopted on October 5, 1926, was filed for record, hut a few days later the omission of the Platt property from the recorded copy was discovered, whereupon the mayor called a special meeting of the council to adopt and have recorded a supplemental ordinance to cure the omission. This supplemental ordinance is given the same number as the original ..ordinance, and bears, the same date, although it was not adopted until some days later, and was not filed for record until March 5, 1929, or more than two and a half years after it is shown to have been adopted..

Mr. G. M. Leadman died after the property was sold to Mr. Platt, and his widow, one of the defendants herein, became the co-owner, with Mr. Spence, of the note representing the deferred portion" of the purchase piece. Mr. Platt found himself ■unable to meet - the monthly installments, and on being pressed for. payment, agreed to transfer the property to' the defendants. The recited consideration was $2,000 cash. The actual consideration, however, was the balance due by Platt on the purchase price, amounting to about this sum. The services of Mr. J. F. Slattery, an attorney, was retained by defendants to attend to the transfer, and to see that a good title was obtained. He made a search of the records and procured a mortgage certificate, and within a few days after the matter was placed in his hands, drew a deed which was executed by Mr. Platt, on December 9, 1926, conveying the property to the defendants. The mortgage certificate showed no incumbrances against the property except the mortgage retained to secure the purchase price when sold to Mr. Platt. Mr. Slattery advised Mr. Spence that the. title was clear with' that exception.

On October 3, 1929, this suit was filed, which resulted in a judgment in favor of the plaintiff recognizing him as the owner of the .claim for street paving secured by special lien against the property. Defendants have appealed.

All parties agree, and the ■ lower court correctly held, that no personal obligation was. created by the proceedings in advance of, and subsequent to, the paving of the street. Whatever rights, therefore, plaintiff has, is based upon the provisions of the act under which this work was performed. Section 4 of the act provides. that upon the final and satisfactory completion of the work, the,. municipal authorities shall accept by ordinance and provide for the assessment of the amount due by the abutting real .estate, railroad track and roadbeds according to the rule of. apportionment stipulated in the act. And it further provides:

“A certified copy of such ordinance contained in the said assessment shall within teii days after its passage be filed, for record in the office of the Recorder of Mortgages in the parish in which said assessed property is located, and the same when so filed and recorded shall operate as a lien and privilege in favor of said city or town, or its transferees, against the real estate and railroad tracks therein assessed, which lien and privilege shall prime all- other claims except taxes.”

Plaintiff, in this suit, is attempting to have recognized and enforced, the lien and privilege permitted to be created by the foregoing statute, and alleged by him to have been brought into being by the procedure in connection with this paving program. It is perfectly clear that, as to the property in question, there was not, by the original ordinance, as recorded, any assessment against this property. And it is also well settled that privileges are in derogation of common right, and are therefore to be strictly construed. Loeb v. Collier, 131 La. 377, 59 So. 816; Gause v. Bullard, 16 La. Ann. 107; Succession of Rousseau, 23 Ann. 1; C. C. art. 3185.

In the able brief of plaintiff’s counsel it is urged that by its terms this ordinance levied assessment upon all property on Caddo avenue between Fifty-eighth and Sixty-sixth streets. It is true that in the title it is recited that it is an ordinance “making and levying assessments against all abutting real estate and the owners thereof for the paving of said street.” But no such language is found in the body of the ordinance itself. Section 2, levying the assessment, reads, in part as follows:

‘‘Be it further ordained, etc., that an assessment is hereby made and the same is hereby levied against the hereinafter described properties, and the owners thereof, the same being the proportionate amounts due by said abutting properties and the owners, thereof for paving constructed upon Caddo avenue,” etc. ■

Th,en follows a detailed description of a large number of properties together with the specific amount assessed against each respective property described. The property of Mr. Platt is not described in the ordinance thus recorded, nor is. there any amount assessed or charged against it. We do not believe the language found in the title of the ordinance is sufficient to charge third persons with notice of an outstanding specific paving charge against any property other than that actually described, with the amounts assessed indicated.

It is true that local assessments are levied upon the theory that the property is benefited to the extent of the cost of such improvements, but, in order to subject property to such assessment, the forms of law must be complied with, not- only by actually making the assessment against the property, describing it with reasonable accuracy, but indicating the actual amount assessed against it, and this must be recorded within ten days after passage of the ordinance levying the assessment. This was not done. There was no recordation of any assessment at all - for more than two years. The lawmakers fixed a period of ten days within which this must be done, and we are powerless to extend it.

The question here presented is not one where the municipality undertook to levy an assessment but omitted some preliminary formality required by the statute, against which failure no protest was made; it is a case of utterly failing to levy any assessment at all, in the original recorded ordinance, and failing to record for more than two years, after the assessment was made, the ordinance in which the levy was actually made, when the statute allows only ten days.

Nor is it one where a transfer is made while paving work on a street is actually under way, and where, upon completion, a lien will be seasonably filed against the propei'ty, without reference to who may be the owner. It is one where the transfer is made long after the time provided by law, within which the assessment must be filed and recorded,, to operate as a lien and privilege on the abutting property.

Plaintiff was bound to know, if he had examined the record, that the claim he acquired was not secured by an assessment, and its registry, as the law requires. He could easily have protected himself by an examination of the record. Defendants, when they undertook to reacquire title to the property, were not bound, under the settled jurisprudence of this state, to look beyond the records to ascertain if there were any secret, unrecorded liens resting against it. Const. 1921, art. 19, sec. 19; McDuffie v. Walker, 125 La. 152, 51 So. 100. The assessment for paving Caddo avenue was duly of record, and if defendants’ counsel had examined it, it would have shown no incumbrances against the property, and since they took the precaution to secure a mortgage certificate, defendants certainly cannot be charged with any laches.

Plaintiff’s counsel also contend that defendants owed Platt for the useful improvements. placed upon the property. The answer to that argument is that Platt is making no claim to be reimbursed, and it is conceded that no personal obligation would have rested upon Platt even if it had been seasonably recorded.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that plaintiff’s demand be rejected and his suit dismissed at his costs in both courts.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3173
    Second Circuit (Second Division)
    WILLIS v. BELLE ET AL.
    (May 7, 1931. Opinion and Decree.)
    Lee & Lindsey, of Minden, attorneys for plaintiff, appellee.
    Robertson & Gibbs, of Shreveport, attorneys for defendants, appellants.
   CULPEPPER, J.

Plaintiff brought suit against defendants upon a promissory note and obtained judgment. Defendants .have appealed.

The note sued on was signed by defendants January 1, 1921, for $900, made payable to the Bank of Cotton Valley, maturing January 18, 1921, and bearing 8 per cent per annum interest from maturity. It shows to have been indorsed in blank by the payee.

Defendants, answering, admit signing the note and admit plaintiff to be the holder and owner of same, but deny that they owe the debt. They allege they have paid $400 on the note, as shown by itemized list of payments which they allege is attached to the answer. It will be noted that there is not shown any such list attached as alleged. It is further alleged in the answer that the consideration of the note was used in purchase of land and construction of a public school building thereon, title to which is in the board of school directors of Webster parish, and that the debt represented by the note is a debt of said school board. They prayed for and obtained an order calling the school board in warranty. The record shows no answer to the call in warranty as having ever been filed, and no appearance by warrantors at any stage . of the proceedings. The judgment, however, reserves to defendants all their rights against the school board under the call in warranty; also reserves to them all their rights against the heirs of Pat Williams, deceased, who was living at the time, and signed the note with defendants; the heirs of said deceased not having been made parties to the suit.

The suit was filed April 6, 1926, and answer filed May 3, 1926, and case set that same day for trial for June 21, 1926, presumably in presence of counsel for defendants, as the setting of the case for trial was on the same day answer was filed.

For some reason, not shown by the record, the case was not tried on the day fixed, but was tried on September 22, 1926, in the absence of defendants’ counsel, and judgment rendered on that same day and signed the following day. On September 27, 1926, defendants filed a motion for a new trial on the alleged grounds: (1) That defendants’ counsel was unavoidably absent on day of the trial through no fault of defendants; (2) that defendants have a good and valid defense; (3) because defendants’ counsel had understood from an associate counsel for plaintiff that the latter wiiuld not insist upon a trial; (4) that the judgment is contrary to the law and the evidence.

On September 21, 1927, lacking only six days being a year after the motion for a new trial was filed, defendants secured an order of appeal. No appearance has been made by defendants before this court to the appeal taken, neither by counsel nor brief filed or otherwise. We assume the appeal has been abandoned, and shall so consider it.


author: LeBLANC, J.

text:
    No. 779
    First Circuit
    DEPETRO v. MITCHNER
    (May 5, 1931. Opinion and Decree.)

      R. P. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Leslie A. Pitch, of Baton Rouge, ■ attorney for defendant, appellee.
   LeBLANC, J.

This is an action ex delicto brought by the plaintiff, Mike Depetro, for himself and in behalf of his minor child, Lena Depetro, against the defendant, C. C. Mitchner. A plea of prescription was filed by the defendant, which the minutes of court show was sustained by the district court and judgment rendered dismissing the plaintiff’s suit at his cost. An order for appeal was obtained and the appeal timely perfected.

While the minutes of court show that such judgment was rendered in open court on December 1, 1930, and that the plaintiff, within proper time, moved for a rehearing ’ which was not denied until December 15, 1930, the record nowhere shows that it ever was reduced to writing and signed by the judge. The absence of a signed judgment forms the basis of defendantj-appellee’s motion to dismiss the appeal.

Appellant’s answer to the motion that the judgment is interlocutory, and as such need not be signed, is in effect an admission that there was no judgment signed.

If it be granted for the sake of the argument that the judgment rendered was interlocutory, appellant, it seems, would obtain but little comfort in the situation as it presents itself, because an appeal is granted from an interlocutory judgment when (and we. take that to mean only when) such judgment may cause irreparable injury, and there is no pretense or suggestion of any injury whatsoever here.

But we are clearly of the opinion that the judgment rendered was a final and definitive one and as such had to be signed before the appeal could be entertained. We quote the following from the case of River & Rails Terminals v. Louisiana Railway & Navigation Co., 157 La. 1085, 103 So. 331:

“Our attention has been called to the fact that no judgment was signed and none appears in the record.
“Code Prac. art. 546, provides that the judge must sign all definitive or final judgments rendered by him, and it is well settled by the decisions of this court that no appeal lies from an unsigned judgment. State ex rel. Dixon v. Judge, 26 La. Ann. 119; Saloy v. Collins, 30 La. Ann. 63; Hauch v. Drew, 116 La. 488, 40 So. 847; Mitchell v. Creosoting Co., 123 La. 958, 49 So. 655; James v. Hotel, 145 La. 1007, 83 So. 222.”

In the case quoted from, as well as in some of those therein cited, the unsigned judgment appealed from, .which dismissed the (plaintiff’s suit, was rendered on an exception of no cause of action. In each instance such judgment was held to be final and definitive, and whilst we find no decision in. which the appeal was dismissed from a - judgment dismissing the suit rendered on a plea of prescription; as in this case, we think it is a judgment of the same nature and should be signed before the appeal would lie.

Code of Practice, article 539, defines “definitive or final judgments” such “as decide all the points in controversy between the parties,” and adds further that they “are such as have the force of res adjudicata.” In the case of Johnson v. For-stall et al., 3 La. Ann. 446, it was directly held that a judgment rendered on a plea of prescription was a definitive judgment and constituted res adjudicata.

A further thought, which seems to emphasize the point that the judgment herein rendered is a final one, arises from the fact that a plea of prescription being a peremptory exception,' the judgment based on it is one which, under the law, contemplates a dismissal of the suit.

Peremptory exceptions, according to article 343, Code of Practice, “are those which tend to the dismissal of the action. Some relate to forms; others arise from the law.” Article 345 reads as follows:
“Peremptory exceptions, founded on law, are those which, without going into the merits of the cause, show that the plaintiff can not maintain his action, either because it is prescribed or because the cause of action has been destroyed or extinguished.”

From this provision of the Code of Practice, it appears to us that a judgment based on a plea of prescription and one based on an exception of no cause of action are of the same character in their relation to the disposition of the suit, and since it is so well settled that no appeal lies from an unsigned judgment dismissing the suit on an exception of no cause of action, we hold that the same ruling applies in the case of judgments sustain-ing a plea of prescription.

For the foregoing reasons, appellee’s mo-, tion is sustained, and the appeal herein taken is dismissed, at the appellant’s cost.


author: STEPHENS, J.

text:
    No. 3977
    Second Circuit (Second Division.)
    WINN, JR., v. VEAL-WINN CO., RECEIVER
    (May 7, 1931. Opinion and Decree.)

      Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   STEPHENS, J.

This is a suit to cause the judicial determination of the amount due plaintiff by the receiver of the VealWinn Company, Ltd., for services rendered as clerk and bookkeeper for said company prior to the receivership; and for recognition of plaintiff’s privilege on the goods in the store of the Veal-Winn Company, Ltd., at the time the receiver was appointed.

The defendant filed an exception to the citation, and then an answer, coupled with an exception of no cause or right of action. The answer sets up that thp plaintiff agreed that if the receiver would retain him as an employee at $75 per month he would waive the privilege granted him by law for any sum due him in excess of $300 and that the receiver retained him as employee of the receivership at said salary pursuant to said agreement.

Judgment was rendered by the trial judge fixing the amount due plaintiff at $838.95, and recognizing his privilege and preference to the full extent of said sum.

The receiver appeals.

The counsel for the defendant contend that the exception to the citation was overruled by the trial judge, but we are governed by the record and it does not disclose that fact. The minutes of the court with reference to the matter, after showing the filing of the exception and its trial, reads in part as follows:

“In view of the fact that counsel has enteréd a non suit the court rules that the exception*1 before the court as to the accounting, and to whether the receiver places this plaintiff on the schedule with ' the privilege asked for is fixed for trial on November 26, 1930. Bill reserved by counsel for defendant to the ruling of the court, and an exception is taken to the fixing of the case for trial on November 26th, since the fixing will cut the receiver off from filing any further motions that he may have and depriving him of his day in court.”

For the purposes of this review the exception was not decided, and the' defendant having answered and gone to trial on the merits without insisting upon a decision on the exception, has waived the same.

The defendant assigns for reasons why his exception of no cause or right of action should be sustained, that plaintiff did not obtain leave of court to sue the receiver; that plaintiff’s action is a personal one against the receiver for a corporation debt; and that plaintiff’s right of action is limited to a suit for recognition of his claim to be ranked and paid in due course.

It is not shown by the record that this exception was tried and decided. We must assume that it was not. The requirement that leave must be had before a receiver can be sued is for his protection, and may be waived by him by defending the suit without objection. The Supreme Court of Louisiana, in City of New OTleans v. New Orleans Savings Institution, 32 La. Ann. page 527, held:

“Want of (permission from the Federal court, which appointed a Receiver, to bring suit against him in the State court, is waived by the appearance of counsel in his behalf, such appearance being an admission that the defendant has been regularly brought into court.”

In the same case, High on Receivers, sec. 261, was quoted approvingly;

“A motion to dismiss an action brought against a receiver, upon the ground that leave of the court was not first had be* fore beginning the action, is waived by the appearance of counsel for the receiver, such appearance being an admission that the defendant has been regularly brought into court. Want of permission, therefore, to bring the action cannot be urged as a ground for dismissal after such appearance on the ipart of the receiver.”

We are not in a position to determine from the record that the objection was made in the trial court that leave had not been granted to sue the receiver. We are of the opinion, however, that the appearance for the purpose of filing the exception to the citation prior to making such objection, if made, waived defendant’s right to except to the prosecution of this action without leave of court.

The second and third reasons assigned by the exceptor, we think, wholly without merit. It is not difficult to determine from a reading of the petition that the purpose of the suit is not to obtain a personal judgment against anyone, but as stated above, its purpose is to have the claim of plaintiff determined and his privilege recognized. The judgment as rendered serves that purpose, and is not enforceable, as defendant contends, by writ of fieri facias. The judgment can only be enforced in the usual course of administration of the receivership, under the direction and supervision of the court. The exception, if overruled, was properly overruled; if not, it is now overruled.

On the trial of the case no evidence was adduced by defendant to show that the plaintiff was not due the amount which he testified that he was due, that is, $838.94. The receiver, by his special defense as outlined above, admits the existence of the privilege. The sole question of fact to be determined is whether the defendant, who bears the burden of proof, has established by a preponderance of the evidence that the plaintiff agreed to relinquish his privilege on the amount due him in excess of $300 for the consideration above stated. The plaintiff testified positively that he did not so agree. The defendant testified, but not so positively, that he did so agree. There were no other witnesses to the alleged agreement. If both witnesses be considered of. equal credibility the plaintiff must prevail.

This court, in keeping with an established jurisprudence, is reluctant to disagree with the trial judge on a. question of fact. In this case we see no reason to disagree with his findings.

For which reason the judgment appealed from is affirmed.


author: LeBLANC; J.

text:
    No. 771
    First Circuit
    SUCCESSION OF CRAWFORD
    (May 5, 1931. Opinion and Decree.)
    H. E. Ellis and Frank B. Ellis, of Covingtoh, attorneys for administratrix, appellant.
    S. W. Provensal, of Slidell, áttorney for opponent, .appellee. . .
   LeBLANC; J.

-Miss- Martha Crawford died in the parish of St. Tammany on Jannuary 20, 1930, and ’.her succession was duly opened in the district court in that parish. Mrs. Richard Porter presented a bill for $486 for 162 days’ nursing, at $3 per day, to the administratrix of the succession, Mrs. Rosa Crawford Banks, who declined to place the same on the account she presented to "the court. Mrs. Porter then filed an opposition setting up her claim, which, went to trial without the administratrix having filed any pleadings of answer thereto.

It developed during the trial of the opposition’ that the opponent had received the sum of $60 .from the .decedent before she died. She maintained, however, that this amount was paid for board, and was in no way connected with the claim for nursing. The district judge nevertheless gave the succession credit tq that extent, and rendered judgment in the sum of $426. The administratrix appealed, and the opponent has answered, asking for an increase in the judgment to the amount as prayed for.

The testimony shows that prior to August 11, 1929, the decedent, an elderly person, who lived alone, relied a good bit on the attention given her by the opponent, Mrs. Porter. She lived in her own home, but was very frequently at Mrs. Porter’s, and took quite a number of her meals with her. At that time the house Mrs. Porter was living in belonged to Miss Crawford. It was formerly an old store building which had been somewhat crudely converted into a home. As we understand the evidence, at that time Mrs. Porter was paying rent. On August 11, 1929, Miss Crawford took very ill, and it is shown by the testimony of Mrs. Porter, corroborated by other witnesses, that it was her desire to remain at Mrs. Porter’s where she could be better taken care of. She did remain, bedridden most of the time, from that day on to January 20, 1930, when she died. The evidence shows that she was about seventy years of age, and. that she was suffering from a curvature of the spine. She required almost constant care and nursing, which the proof shows she received from Mrs. Porter. Dr. Sin-' gletary, who attended her, testifies that she was satisfied where she was, and that she was getting as good attention, as she could, considering the circumstances. Mrs. Marshall, a trained nurse, who visited the decedent frequently, also testified most favorably as to the care and attention given by thp opponent, and she is corroborated in .this by several other ladies residing in the neighborhood who were often there to. render what assistance they could. We are of the opinion that the opponent has shown by a clear preponderance .of the testimony that she rendered the service she says she did, and that it was fully worth the amount she charges .for it.

The administratrix submitted a considerable amount of testimony to show that the house in which Mrs. Porter lived was not screened, and therefore infested with flies, that it was not as commodious as it should have been to be occupied by a family as large as hers, and by no means as proper a place for a sick person aá was Miss Crawford’s own home. All of this, however, as we view it, has no bearing on the claim presented by this opposi-’ tion, which is for nursing. Especially does such testimony lose its weight in this case where the fact appears to be that Miss Crawford was there by her own choice, was well satisfied, and never did complain about the surroundings and the attention she was receiving.

There was also an attempt made to show that Mrs. Porter used for herself and family the milk from a cow and also chickens and eggs, which was all the property of Miss Crawford, but the proof is to the contrary. The fact is that after she got disabled, the care of the cow and chickens added another burden to those Mrs. Porter already had. She admits using the milk after' Miss Crawford had had all she needed, and that was only up to the time she sold the cow during the early fall. After a while, she also sold all the chickens.

If we are to judge the defense to this opposition by the testimony of the administratrix, it is to the effect that Mrs. Porter had been paid all she was entitled to by the transfer of the small property on which the home she lived in was situated. When asked if she had any reason for refusing to pay the bill if she believed it to be a just and honest obligation, the administratrix answers: “Not a bit, if they had not got the place we would have paid the bill.” Aside from the fact that the transfer of the property referred to is by' authentic deed apparently in proper form, which is not attacked, it occurs to us that the refusal to pay the bill on the ground urged by the administratrix presents a matter of special defense which should have been specially pleaded. The lower court, however, permitted testimony to be p,d‘duced regarding the transfer and after considering it, came to the conclusion that the property had not been given in payment for services rendered. We, also, after giving it due consideration, believe that it was really a donation by Miss Crawford with no intention on her part of it standing as a payment for the nursing and care given her by Mrs. Porter. That she acknowledged she was under obligation to Mrs. Porter, for this is shown by the admission she made to her that she would pay her after she would get well. Counsel for the administratrix directs our attention to some decisions of the Supreme Court which refer to the statements of deceased persons as the weakest kind of testimony. Such is a fact, but it is nevertheless legal evidence, and when corroborated as in this case, assists in the solution of the issue before the court. On that subject, moreover, we now have Act No. 11 of 1926, referred to by counsel himself, which provides in effect, that to establish a debt against a party deceased in a suit brought within twelve months after his death, “the testimony of at least one credible witness of good moral character besides the plaintiff” must be produced. There is certainly nothing to suggest that Mrs. Marshall is not a person of good moral character, worthy of belief, and she is equally as positive as is Mrs. Porter in her assertion that the decedent told her that she would pay Mrs. Porter for nursing her.

In his reasons for judgment, the trial judge holds that “there is proof that the opponent received in money for board or whatever you might term it—the sum of Sixty dollars while Miss Crawford was at her house” but he then proceeds to credit the account, which is for nursing, with that amount. That appears to us to be a bit inconsistent, especially so in view of the fact that there seems to be no question about the value of the services rendered for nursing. We have accepted Mrs. Marshalls’ testimony and relied considerably on it to sustain the claim for nursing. It would be somewhat difficult to reconcile a rejection of it on the question of the payment of these sixty dollars. She seems to have been trusted by Miss Crawford, as she had access to her bank account and paid her bills for her. She makes it plain that $20 per month, which was paid for three months, was for board and included besides the washing and tending to the cow and everything around the place. On this matter we find that we have to disagree with our learned brother of the district co,urt, and necessarily the judgment will have to be amended by increasing it to the extent of $60.

For the foregoing reasons, it is ordered that the judgment appealed from be amended by increasing it in amount from the sum of $426 to the sum of $486, and that as thus amended, it be affirmed.


text:
    No. 3785
    Second Circuit (Second Division)
    DEMOSS v. WILSON
    (May 7, 1931. Opinion and Decree.)
    A. M. Wallace, of Benton, attorney for plaintiff, appellee.
    Wm. M. McDonald, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff sues to recover $800 alleged to be due him by defendant for rent for 1924, 1925, 1926 and 1927, on 20 acres of land which plaintiff recovered from defendant in a petitory action instituted in 1924 or 1925.

Two hundred dollars of the amount claimed is for the year 1924 under an alleged rent contract. The remaining sum is upon a quantum meruit basis of $200 each year for the remaining years mentioned, The allegation is that, after the expiration of 1924, defendant ' refused to surrender the property and continued to occupy it throughout 1925, 1926 and 1927, cultivated it and raised crops, thereon; and that the rent for those three years amounted to fully $200 a year.

Defendant, answering, admits he occupied and farmed the land during the four years named, but alleges that he did so in good faith, believing himself to be the owner, and that he surrendered the property only after the judgment in the petitory action became final. He denies that he rented the land from plaintiff for 1924 as alleged; denies he ever at any time rented it from plaintiff. He denies the rent for the years alleged upon by plaintiff was worth or amounted to the sum or sums, alleged.

Defendant, in connection with his answer, reconvened for the alleged expenses for clearing 11 acres of the land at $20 an acre; for eight rolls of net wire at $6.25 per roll; four rolls of barbed wire of the value of $4 per roll; hauling 400 posts to fence land at $1 per 100; one pump of the value of $14; and for $50 for labor in building wire fence. The total amount for which he reconvened is shown to be $354.

Upon the issues as thus presented the case was tried, resulting' in a judgment in favor of plaintiff for $340 upon the main demand, and for defendant in the sum of $187 upon his demand in reconvention.

Plaintiff and defendant were taxed equally for costs. Defendant appealed.

Plaintiff has answered the appeal, praying that the judgment be amended by increasing the amount awarded him in the lower court to $700, and taxing defendant with all costs.

At the conclusion of taking testimony defendant filed a plea of prescription of three years against the claim for rent for 1924. This plea does not appear to have been passed upon by the court. Counsel for defendant now urges that the plea should be sustained. He states that the original petitory action hereinabove referred to was filed in 1925. This seems to be the first statement shown anywhere just when that suit was filed. The record does not show when that suit was filed.

' If the petitory action was' instituted in 1925, no rent for 1924 would be due by defendant. No doubt he was occupying the property in good faith as owner up to the time the suit was filed. Pecot v. Prevost, 117 La. 765, 42 So. 263. We dq not know how the lower court viewed this question of. the 1924- rent. The testimony showed strongly that no crop was raised on the land that year on account of overflow, and that would be a good reason for defendant not being chargeable with rent. The judgment of the lower court does not reflect any rent charge for the year in question. ' The judgment was in favor of plaintiff for only $340, which would be sufficient to cover rent for only two years on the basis of the cultivation of 17 acres at $15 per acre. There was some testimony to the effect that there were some 3 or 4 acres of the 20-acre tract that were uncultivatable, and it is quite likely the judge took this, into consideration and made the calculation on the basis above mentioned. It is conclusive from the evidence that the judge disallowed rent for 1927 on account of the general overflow in that year and no crop made. It will be noted that the land in question is Red river bottom land. In years of extreme high water it goes many feet under water, and in ordinary high water, such as was in 1924, according to some of the testimony, this land nearly all goes under from back water • in a bayou which runs through it. Under any view of the case, whether the judge sustained the plea of prescription or disallowed rent for 1924, the result would be the same, and we find no error in his ruling.

Plaintiff filed a pléa of prescription of three years in this court against defendant’s .claims in reconvention, upon the ground that the clearing and other improvements for which reimbursement is claimed were all placed on the land between the years 1918 and 1924, according to the evidence. The plea of prescription, we think, is not good for the reason that defendant was- a possessor of the property in good faith and has the undisputed -right to offset rents with the value of materials and price of workmanship for improvement's which he had placed on the land. It was not incumbent upon defendant to 'even make a demand for reimbursement until plaintiff elected whether he would require defendant to remove the improvements which could be removed, or plaintiff retain them; or reimburse defendant a sum equal to the enhanced value to the soil by the improvements which could not be removed, such as tbe clearing of tbe land. Plaintiff has not made this election in so many words. Neither has he submitted any proof as to the enhancement of the value of the soil by reason of the improvements. The right in defendant to make these demands, did not accrue until plaintiff made his elections or choice. It might be inferred, however, that plaintiff has contented himself with the position defendant has taken, that of a settlement on the basis of the retention by plaintiff of the improvements and reimbursing defendant for the value of materials and price of- workmanship.

“If the owner wishes to pay enhanced value of soil,” (instead of value of, improvements and price of workmanship) “he must show by evidence what .that is.” Hutchinson v. Jamison, 38 La. Ann.'150.

Proof has been administered by defendant with regard to the value of materials and price of workmanship, ;and we shall predicate our opinion on it, as it -may be fairly assumed that plaintiff was content with the election defendant has made. The proof submitted as to the value of materials and price of workmanship is rath; er vague and indefinite. Practically the only testimony in this respect is that of defendant himself. The trial judge gave judgment upon the demands in reconvention for $165. He evidently was of the opinion that the evidence was such as to warrant that amount, no more nor no less. It is well settled that in cases where the evidence is vague and uncertain the judgment upon appeal will not be disturbed. We see no good reason to do so in this case.

Plaintiff also urges that costs of both court's be decreed to be paid by defendant. In view of the reconventional demands made and the award thereon, we see no reason to change the ruling of the lower court in that respect.


author: WESTERFIELD, J.

text:
    No. 13,770
    Orleans
    STANDARD ELECTRIC CONSTRUCTION CO. v. FRICK CO., INC., ET AL.
    (April 27, 1931. Opinion and Decree.)

      H. L. Hammett, of New Orleans, attorney for plaintiff, appellee.
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

The Frick Company, Inc., a foreign corporation, entered into a contract with the French Market Ice Company, Inc., for the erection of an ice-manufacturing plant in their property No. 1024 Chartres street. The Standard Electric Construction Company, Inc., agreed to furnish and install certain electrical equipment, wiring, and machinery in connection with the execution of this contract for the sum of $1,555. A dispute arose between the Frick Company and the Standard Electric Construction Company as to the extent of the latter’s undertaking with the result that the Standard Company declined to execute its contract in accordance with the understanding of the Frick Company unless $720 was added to the original contract price of $1,555. After considerable correspondence in which both -sides insisted upon the correctness of their respective contentions, the Frick Company, for reasons which to it appeared sufficient, yielded to the Standard Company and agreed to pay it the additional $720, and, upon a basis of this adjustment of the controversy, the Standard Company finished the work to the satisfaction of the Frick Company, and all compensation due it under the contract, except the $720, was paid. That amount was withheld by the Frick Company upon the ground that the agreement to pay it was without consideration.

The contract between the Frick Company and the French Market Ice Company was not recorded, nor was any bond required; consequently, in bringing this suit against the Frick Company, the French Market Ice Company was made a party defendant, and judgment asked against it in solido with the Frick Company under familiar provisions of the building laws.

There was judgment below in plaintiff’s favor as prayed for with recognition of a lien and privilege upon the building of the French Market Ice Company, Inc., and from that judgment both defendants have appealed.

The question for our determination, one of fact, is whether the plaintiff arbitrarily declined to execute an agreement without the payment of additional compensation. It is not necessary in our view that plaintiff should establish his rights to ’the additional amount with the usual legal certainty that would be necessary in the absence of the defendant’s promise to pay it, because the presumption is that defendant’s offer to pay was supported by a proper consideration, and, unless the same was arbitrarily demanded, it must be considered as an adjustment by way of compromise of differences between the parties. R. C. C. arts- 3071 and 3078.

The position of the defendant is that the promise to pay the additional amount demanded by the plaintiff was unsupported by a valid consideration, since the work for which the sum was demanded was within the contemplation of the original contract. Article 1893 of the Civil Code declares that:

“An obligation without a cause, or with a false or unlawful cause, can have no effect.’’

In Monroe Investment Co. v. Ford, 168 La. 475, 122 So. 586, 587, it was held:

“A promise to do what the promisor is already bound to do cannot be a consideration, for, if a person gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal. Therefore, as a general rule, the performance of, or promise to perform, an existing legal obligation, is not a valid consideration.” 13 Corp. Juris, 351 (Contracts) sec. 207. See, also, Moorman v. Plummer Lumber Co., 113 La. 429, 37 So. 17.

Turning to the record we find that the plaintiff’s bid was dated June 27, 1928, and embraced the necessary wiring connections between certain units of electrical machinery when installed in the French Market Ice Company plant. It is claimed that this bid was based upon a sketch procured by a representative of the Frick Company and handed to plaintiff for the purpose of estimating the cost of the work, and that it showed the original area of the building to be 80 feet by 20 feet, and that subsequently, and shortly before the time for plaintiff to begin the work, a blue print was submitted by the Frick Company which showed that the wire connections were to be made with machinery which occupied an area of 80 feet by 132 feet, and that this additional space required more wiring and increased the cost of doing the work to the extent of $720.

Defendant denies that a pencil or other sketch was ever procured by their agent or given to plaintiff for the purpose of formulating its bid. The sketch was never produced, but three witnesses testified to its existence. One of them, a totally disinterested witness, claimed to be the author of it and to have given it to plaintiff at the request of the defendant’s representative. In addition, there is in the record a telegram from the Frick Company’s office in New' Orleans to the main office in Waynesboro, Pa., under date of January 28, 1929, reading as follows:

“Reference French Market Stop Standard Electric Startin- work according to original sketch and contract with no regard to present location of generators and switchboards which will not fit present locations or apparatus and will be absolute loss to us Stop Standard informs us will withdraw extra price by two pm if not notified and will proceed as above stop Recommend that work be started correctly and wire him to start as new contract immediately as will mean bigger loss of time and money with both contractor and customer.”

This telegram tends to confirm the position of plaintiff by referring to the “original sketch and contract” and to a “new contract,” clearly implying Ihat there was a preliminary plan exhibited to plaintiff, and that the original contract had been changed. Moreover, during the interval in which the controversy for the additional price was going on, the Frick Company obtained other bids from other contractors in the city Of New Orleans, which, when compared with the bid of plaintiff, including the $720, were each of them found to be considerably higher.

Upon the record before us it must be conceded that the predicate of defendant’s position has not been established. It has failed to show the unreasonable character of the plaintiff’s demand; consequently its agreement to pay plaintiff must be held to be a compromise of differences and not a gratuitous undertaking. The suggestion that there was coercion by reason of a threat by the plaintiff to lien the building and because of the delay which would ensue in the execution of defendant’s contract with the ice company, involving them in a possible action for damages, if true, cannot affect the situation, for plaintiff was within its rights in insisting upon what it deemed to be a proper concession no matter what inconvenience it might cause the defendant in the execution of its contract.

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


text:
    No. 13,619
    Orleans
    CARNELIOUS v. COLUMBIAN NATL. LIFE INS. CO.
    (April 27, 1931. Opinion and Decree.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellee.
    S. S. Goldman, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an accident insurance policy. Plaintiff alleges that the defendant insurance company on May 27, 1929, issued to him its policy No. 46,164; that on the 2d day of February, 1930, he was accidentally injured, with the result that his leg had to be amputated, causing his total disability and entitling him to the weekly benefits provided under the terms of the policy; that the insurance company paid him. $5 per week, the amount due him, up to May 14, 1930, when, without cause and for reasons purely vexatious, it declined to make further payments. He alleges that the refusal to pay was persisted in for more than 70 days and without just and' reasonable grounds, entitling petitioner to double indemnity and attorney’s fees in an amount to be fixed by the court. He prays for judgment for $55, the amount alleged to be due at the date of the filing of the suit, and for such further sum as may be found to be due as of the date of the trial, and for double indemnity and attorney’s fees. He further prays for reservation of his right to sue for such additional benefits as may be due under the terms of the policy sued on.

Defendant answered, admitting the issuance of the policy and its liability thereunder, and justifies its failure to continue its payments due upon the ground that, since May 21, the date upon which the first unpaid, installment was due, plaintiff failed to supply it with a certificate of a physician, as required by the terms of the policy. The answer also sets up that on July 7, 1930, -it offered plaintiff’s attorney the sum of $40, covering eight weeks’ disability, which offer was declined, and that amount, Upon permission of the court, was deposited in the registry of the court for plaintiff’s benefit.

It thus appears that the entire controversy concerns the penalties provided by law for failure to make prompt payments.

Act 310 of 1910 provides in section 1:

“* * * That no life, health or accident insurance company shall write policies or contracts of insurance, in this State, insuring any person against loss on account of sickness or accident, wherein payment of or indemnities shall be deferred longer than thirty days from written notice, and proof to the company, by the attending physician, in the form required by the terms of such policy or contract of insurance, informing the company of such sickness or accident, entitling the assured to payment under the terms of such policy or contract.”

Section 3 provides:

* * That the insurance company guilty of such delay in payment, unless upon just and reasonable grounds, shall pay to the assured, as a penalty double the amount due under the terms of the policy or contract, during the period of delay, with attorney’s fees to be determined by the tribunal before whom suit is instituted.”

We have no hesitancy in concluding that the defendant in this case stopped payment of the weekly indemnity without “just and reasonable grounds,” and we agree with plaintiff’s counsel in his statement that the reason set up in the answer was not the one which influenced the defendant in its declination to make further payments. The evidence indicates that the payments were stopped because of the, belief that plaintiff’s claim could be defeated upon. the ground that he was afflicted with syphilis, the hospital report showing that there had been a positive Wasserman. When the officers of the defendant company discovered this fact, plaintiff was informed that no further payments would.be made because he. had “bad blood,” and two certificates of his, physician covering two weeks’ disability were ignored upon that ground. The defendant’s officers, following a belated conference with their attorneys, were informed of the frivolous character of their action in this respect, whereupon an attempt was made to pay the arrears which had been withheld. There was no. good reason for delaying the payment . of the indemnity for eight weeks, since defendant’s attorney might have been consulted at once, without -causing the plaintiff the inconvenience resulting from the delay. The offer of the $40 even if it had been made in proper form, can have no effect, because, at the time it was made, it did not cover the amount due plaintiff under his policy.

We were inclined to the view that no consideration could be given the evidence adduced on the trial showing the state of affairs subsequent to the date of the filing of the suit, but evidently we were in error. Wunderlich v. Simpkin, 5 La. App. 35; McCalop v. Fluker’s Heirs, 12 La. Ann. 551; Shreveport Ice & Brewing Co. v. Mandel Bros., 128 La. 314, 54 So. 831; Bonnabel v. Metairie Cypress Co., 129 La. 928, 57 So. 271.

This evidence shows that plaintiff’s disability continued up to the date of trial, and the court, in rendering its judgment, took that fact into account. Indeed his counsel claims that he is entitled to the benefits provided by the policy as long as he lives, because of a provision in the policy entitling him to the disability benefit “for each day that the insured is by reason of accidental injury, of which there is external evidence, disabled from performing work of any nature.” The defendant being a longshoreman, and having lost his leg, it is claimed that he is permanently disabled from performing work of any nature. ‘ Consequently he is entitled to receive the full benefit of the policy which limits him to 26 weeks each year as long as lie lives. With this contention however, we are not concerned, since it forms no part of the issue in the case before us. Notwithstanding continued disability, we do not believe that judgment should be rendered for weekly benefits beyond August 5, 1930, as it was on that day ihat plaintiff’s counsel, through the receipt of a letter from defendant’s counsel, was notified of the willingness of defendant to resume payment of disabilities urpon the submission of proof from week to week in accordance with the terms of the policy. This letter was written 12 days after the suit was filed and 4 days after the filing of defendant’s answer and reads as follows:

“With reference tq the above matter, if the assured since suit was filed continues to be disabled to the extent that he is entitled to the disability benefits under the terms of the policy, and if he will submit proof thereof each week in accordance with the terms of the policy, disability benefits will be paid to him.”

Whatever may have been the situation prior to the receipt of this letter, it is our opinion that it had the effect of notice to plaintiff’s counsel of a changed attitude on defendant’s part, and that it was plaintiff’s duty to have submitted the formal weekly proofs of loss under the terms of the policy from that time on.

On August 5, 1930, there was due plaintiff 12 payments, 8 of which had been due for more than 30 days. Plaintiff should recover four weeks at $5 a week and 8 weeks at $10 a week, or $100, plus a reasonable attorney’s fee, and ,his rights should be reserved to sue for such further benefits as may be due under the policy. The trial court fixed the attorney’s fee at $25, an amount we consider reasonable.

For the reasons assigned the judgment appealed from will be amended so as to award the plaintiff judgment in the sum of $125, with reservation of his right to sue for such further sums as may be due under the policy.


text:
    No. 776
    First Circuit
    KINCHEN v. ROYAL EXCHANGE ASSURANCE OF LONDON, ENGLAND
    (May 5, 1931. Opinion and Decree.)

      (See Kinchen v. Royal Exchange Assurance et al., 12 La. App. 8, 124 So. 844; Kinchen v. Royal Exchange Assurance et al., 15 La. App. 301, 131 So. 201.)
    R. W. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff had insured his household furniture against loss by fire with the defendant insurance company to the amount of $800. On July 3, 1926, during the life of the policy under which it was insured, it was totally lost in a fire which 'destroyed his dwelling house in which it was contained. Upon the defendant’s refusal to pay the amount of insurance, he brought suit to collect the full value, plus 12 per cent statutory damages and $100 for attorney’s fees.

In his petition, plaintiff alleges that a portion of the furniture in his house at the time of the fire had been purchased from the Globe Furniture Company on credit, and that that company held a chattel mortgage on the same to secure the part of the purchase price still due, which chattel mortgage was duly recorded in the chattel mortgage records of the parish of East Baton Rouge. He makes a further allegation, which, although not so worded exactly, we take to mean that he informed the agent of the defendant company at the time the policy was issued of the existence of the chattel mortgage.

The policy, which is of the standard form, provides for its forfeiture, if the subject of insurance be personal property, “and be or become incumbered by a chattel mortgage.” In view of the plaintiff’s allegation, which was virtually a judicial admission that his furniture was mortgaged in violation, of the provisions of the policy, defendant filed an exception of no right or cause of action which was not passed on by the lower court, but was referred to the merits. On trial on the merits, judgment was rendered in favor of the defendant, rejecting the plaintiff’s demand at his costs, and he has appealed.

Defendant urges the exception of no right or cause of action again before this court, and contends that plaintiff’s allegation of knowledge of the existence of the chattel mortgage on the part of its agent is not sufficient to strip of its effect that further provision in the policy which limits the power and authority of the agents in ■ the matter of waivers and requires that any change in the provisions or conditions of the contract be written upon, or at- ' tached to, the policy.

The last provision referred to has been frequently the subject of litigation before the Supreme Court, and invariably it has been given its full effect, unless the facts and circumstances alleged, and usually strong ones, warranted its disregard. In the recent case of Gitz Sash Factory v. Union Insurance Society, however, reported in 160 La. 381, 107 So. 232, 233, in a ma- . jority opinion, the Supreme Court, following what is stated to be the weight of • authority, held that:

“An insurance company, as a corporation, being able to act only through officers and agents, their acts within the scope, ""or apparent scope, of their powers, a~e binding on it, that it may be estopped by their conduct and declarations and as such estoppel may be proved by parol, notwithstanding the requirements that a waiv’r shall be evidenced in writing.”

Later, in Shuff v. Life & Casualty Insurance Co., 164 La. 741, 114 So. 637, 640, in commenting on the Gitz Sash Factory decision, the court said that:

“The ruling in that case, by a majority of the members of the court, was founded, in' some measure at least, upon the fact that the agent who wrote the policy was a general agent of the company, and upon the assumption, therefore, that he had authority to bind the company by a verbal waiver of a condition in the policy. * * *”

The allegation which is meant to impute knowledge in this case does not inform whether the agent mentioned was a general or local agent, and for that reason, in view of the authorities cited, it may be proper to let the ruling of the lower court on the exception of no right or cause of action stand as it is and decide the case, as was done by it, 04 the merits.

From an affidavit introduced in evidence, it appears that the general agent in Louisiana for the defendant company is the firm of Trezevant & Cochran of Dallas, Tex., and therefore we take it that the firm of Paine & Bourgeois of Baton Rouge, La., through which the policy sued on was issued, is only a local agent. The information concerning the chattel mortgage bearing against the property insured in this case is alleged to have been given by the plaintiff to Mr. Bourgeois of this firm of local agents, and if, under the rulings referred to, it is only the .general agent who can be assumed to have authority to bind his company by a verbal waiver of a clause in the policy, it would seem that the plaintiff here cannot recover. But it is not necessary to have to rely on any distinction or classification of agents in this case to rest our decision, as we are satisfied that the plaintiff has failed to show knowledge on the part even of the local agent of the existence of the chattel mortgage. His is the only testimony on this point in the record. He says that he told Mr. Bourgeois that there was a mortgage on the furniture, and that Bourgeois answered that it was all right, adding further: “If we insured only those that had their furniture paid for, we would do little insurance business.” There is not another fact or circumstance to support this testimony. Bourgeois, on the other hand, denies positively that any conversation as related by the plaintiff took place between them. He says that the question of there being a mortgage on the furniture never arose at that time, and that the first information he had of any mortgage was after the fire, when Mr. Stevenson, the credit man of the Globe Furniture Company, told him and Mr. Strickland, an insurance claim adjuster, about it. He says further that his agency is prohibited from writing insurance on furniture under, chattel mortgage, and that, if he had consented to write it under the conditions stated, he would have had to make the proper indorsement on the face of policy. ‘*As- a rule,” he adds, “when that reaches the home office, they immediately wire cancellation.”

Once parol testimony is admitted, the burden of proving a waiver of one of the clauses in a contract of insurance is on the one who alleges the waiver and relies on it to recover. He must show with some degree of certainty at least that the insurance company consented, through its officers or agents, to the 'waiver, or that it is estopped by some act on its part from claiming that -it did not so consent. The proof on the part of the plaintiff in this case is totally lacking in that respect, and conequently he has to be denied recovery.

The judgment of the lower court rejecting his demand was correct, and it is accordingly affirmed.


author: HIGGINS, J.

text:
    No. 13,607
    Orleans
    DAVIDSON v. BAKER FUEL OIL BURNER CO. ET AL. LUDERBACH v. BAKER FUEL OIL BURNER CO. ET AL.
    (April 13, 1931. Opinion and Decree.)
    Titche, Kiam & Titche, of New Orleans, attorneys for plaintiff,' appellee. "
    Dart & Dart, Louis. O. Guidry, of New Orleans, attorneys for defendant, ...appellant. ' ' ■ : .
   HIGGINS, J.

George W. Davidson sued W. L. Baker, doing business as Baker Fuel Oil Burner Company, and L. F. Luderbach, alleging that" on September 11, 1926, he entered into a" written contract with Baker to install a certain heating system in his "residence"; that he paid Baker $1,000 on account of the contract price of $1,685; that the installation was defective, and that all apparatus connected-with the automatic part of the plant had to be removed and another burner installed; that Baker, being unable to do the work, had employed Luderbach to do so, and that all defects complained of were attributable to Luderbach and Baker; that Luderbach had made demand upon plaintiff for payment of $736.70, and, failing to receive same, had illegally recorded in the mortgage office a lien and privilege which should be canceled.

The plaintiff prayed for judgment against Baker and Luderbach, declaring a breach of contract by Baker, and ordering the cancellation of the lien filed by Luderbach, and for judgment against Baker, but not against Luderbach, for $3,000, representing damages sustained from illness, suffering, anxiety, etc.

Exceptions of vagueness were filed and sustained, and plaintiff was ordered on April 22, 1927, to amend his petition to show the amount and cause of his damages with greater certainty.

In the meantime, Davidson having delayed filing this amendment, Luderbach filed another suit, May 10, 1928, against Davidson and Baker, the allegations of which suit will presently be detailed. Shortly after the filing of this suit, Davidson amended his pleadings, giving temperatures on certain days, and claiming $500 for suffering from the cold and $250 for suffering from smoke and soot.

The answer of Luderbach, coupled with a reconventional demand, in the suit brought by Davidson, and the allegations of his petition in his suit against Baker and Davidson, are identical, and substantially are that he was a subcontractor employed by Baker to install the heating system with the exception of furnishing and installing the burner, the condensation pump, the oil storage tank, the building to house the boiler and burner, the electric wiring and the lining of the boiler with fire brick, which work he verbally agreed to do for $1,322, and which he performed to the full satisfaction of the said Baker and Davidson; that, during the progress of the work, he agreed with Baker to perform certain extra work for the sum of $199.98; that, after the completion of the work, he was requested by P. ,1. Ebel, on behalf of Mr. Davidson, and by Baker, to install a new section to replace a broken one in the boiler, which he did at a cost of $71.70; -that, in order to secure to him the payment of the amount of his subcontract, Baker assigned to him his contract with Davidson; that he was paid $1,000 by Baker, and, failing to secure payment of the balance due him, he filed his lien in the mortgage office against the building. He prays for judgment against Davidson and Baker in the sum of $593.68 and for recognition of his lien and also the assignment.

Baker answered, admitting both agreements with Davidson and Luderbach, but defended the suit of Davidson against him on the ground that, before he could complete the work on the installation and adjustment of the burner, Davidson took over the job While he (Bakey) was actually on the job. He defended the Luderbach suit on the ground that he had made an absolute assignment of the Davidson contract to Luderbach without any guarantee of payment by Davidson.

Davidson’s answer to the Luderbach suit contains practically the same allegations ns his petition in the original suit.

Answers having been filed by all parties in both cases, these suits were on joint motion consolidated and in due course tried together as one suit.

After trial, the court rendered judgment in favor of Davidson for the sum of $250 damages against Baker, and dismissed all claims of Luderbach against Davidson, but gave judgment in favor of Luderbach against Baker for the amount claimed, namely, $593.68.

Luderbach alone has appealed from the judgment, and hence it is final as to Baker.

The record shows that Davidson, desiring to have an automatic heating system installed in his residence, entered into a written contract with Baker, who was engaged in the business • of manufacturing fuel oil burners and pumps and installing fuel oil burning equipment, as follows:

“New Orleans, U. S. A.
“Sept. 8, 1926.
“Mr. George W. Davidson, 1206 Nashville Ave., New Orleans, La.
“Attention Mr. Ebel.
“Dear Sir: We propose to heat your house at the above address using ample Radiation and all galvanize piping.
“Furnishing Boiler, erect Boiler room, furnish Baker Crude Oil Burner Fully Automatic, furnish a 1000 gallon steel tank, run fill pipe to curb and fit with lock and key, for the sum of $1685.00 (one thousand six hundred and eighty-five dollars). All work guaranteed for one year from date of' this contract.
“All work and equipment done in strict accordance with The Fire Prevention Bureau, and guaranteed, and defect showing up in a period of five years, on Oil Burner only, will be placed free of charge.
“House will be heated to 72 degrees no matter what outside temperature is. All work to be painted any color you selected, by us.
“Will weather board front and back boiler room, cut off valves on all radiators.
“Yours very truly,
“W. L. Baker.
“[Signed] W. L. Baker.
“Accepted this the 11th day of Sept. 1926.
“By [Signed] Geo. W. Davidson.”

This contract was not recorded in the mortgage office, and no bond was exacted.

In the latter part of September, 1926, Baker entered into a verbal agreement with Luderbach, who is a plumbing and heating contractor, to have him install all of the heating system except the burner, condensation pump, the oil storage tank, the building to house the boiler and burner, the electric wiring, and the lining of the boiler with fire brick for the sum of $1,322.

Before the work started Baker, in writing assigned the contract to Luderbach during the latter part of September, 1926, as follows:

“We, the Baker Fuel Oil Burner Company, hereby assign this contract in full power to' the Luderbach Plumbing Co. of New Orleans, La.
“[Signed] W. L. Baker.”

After the assignment of the contract, Luderbach installed the heating system, using the burner and condensation pump which were manufactured and furnished by Baker. After a certain amount of work was installed, Luderbach requested payment of $1,000 from Davidson, who reluctantly made a check payable to Baker for that amount which was indorsed over to Luderbach.

It appears that the work was started- in the late part of September and was completed in the latter part of November. The weather was very cold, and-, due to defects in the heating system, Davidson was unable to keep his home properly heated. He repeatedly complained to Baker of the defects, and particularly that the burner and pump were not operating properly, and, in spite of Baker’s repeated efforts to remedy the trouble, he was unsuccessful.

On January 7, 1927, Davidson by registered letter notified Baker that, unless the heating system was made to function properly, he would have to have other equipment installed.

On January 17, 1927,. Davidson entered into- a written contract with Mayer Godchaux &;.Co., Inc., to-remedy the defects in the heating system and to install a¡ “Quiet May” oil burner, a new condensation- pump, and other necessary electrical work and piping for the sum of $1,175, in.order, to make; the heating, system operate.properly.

While the • original contract "with Baker was fqr $1,685 to install .the heating system, as a result, pf the defects, the total cost of the installation of the- heating system to Davidson was $2,193. After Mayer Godchaux & Co., Inc., made the corrections its. expert recommended, the', heating sys: tern worked all right, and Davidson had no further trouble. '

Luderbach' contends that he was a subcontractor; and that he properly .installed •his work, and consequently he is not responsible.. for.-, any • defective -machinery and equipment .furnished- by-'Baker, ■.and further that the assignment by ■ Baker to himself-w.as a..partial .one,'-because-it was given -merely as .sec.urit^-, for tha-payment of the contract- price, of. $1,322, covering '..the work which-, Luderbach was to install as subcontractor, and that, being a subcontractor,, he has a lien on, the building.

., .Davids.on,, contends .that. the-.assignment of the Gontr'act was-■ absolute; and that,, as Lu.derba.ch installed the .system, -he -lost -his status as. a subcontractor, and assumed-the same rights and . responsibilities. - as Baker under, the provisions-of, ¿he --cqntract, and hence, he-had. mo lien,, as. the-w.ork was not correctly done and finished. - - ■ . .

“'-While-it is true that Davidson'repeatedly complained-'to' Baker, and Baker attempted, to remedy the. defects -in the heating system, -and particularly: the. pump and burner, it,,.also appears that Davidson did not ,know that/the contract .was assigned to Luderbach, and thereforeJiQokedt to" Baker to carry out ,the guarantee of the com tract. Davidson had a right to call upon Baker because he had .never waived his rights as against Baker, and never agreed to look solely to Luderbach. as the assignee of the contract.

it is hardly probable that it was Luderbach’s intention to merely accept a partial assignment of the contract for the purpose - of securing- the- money ■ that Baker would1 owe -him after' he had -performed his services, because- the language of the assignment and ' his action in going ' ahead and-'installing the heating • system' entirely negatived any such idea or 'purpose.

Wé are of the opinion that the assignment is an absolute one, and that Luderbach as., assignee accepted, not. .only .the benefits of the contract, but also the responsibilities which went with .-it. ■

Since the .assignment is. an' absolute one, Luderbach. lost his. status as a-subcon: tractor and. occupied the position -of ' contractor, and; as such, was fully responsible for the proper operation Of the' heating sysf tern as guaranteed . by the .written- contract. The evidence shows, that 'the-, sys: tern- was defective and fhiled -to furnish proper heat. “ ■ '■

. It ,is'.'clear.'to -us' that' Baker -.could:.- not have <• enforced payment of " the-: b'al'dncfe - of the" contract' as against Davidson and consequently,’ as Luderbach as, assignee assumed,,, the same responsibiiities, he is now in the same position. Williams & Co. v. Roach, 12 La. App. 305, 125 So. 465; Adams v. Webster, 25 La. Ann. 117; Kugler v. Taylor, 19 La. Ann. 100.; Gray v. Thomas, 18 La. Ann. 412; 5 Corpus Juris, p. 976, “Assignments," sec. 168; State v. School District of Norfolk, 51 Neb. 237, 71 N. W. 727; 5 C. J. p. 947, sec. 122.

- ’For the reasons, ássigried,' -the ■ judgment appealed - from is'affirmed. - '- - r' -“-m


text:
    No. 13,763
    Orleans
    HUERSTEL v. PINGEL
    (May 11, 1931. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff,. appellee.
    Dart &; Dart and Louis C. Guidry, of "New Orleans, attorneys for defendant, appellant. ■
   WESTERFIELD, J.

Plaintiff brought 'this suit on August ,5,. 1930, alleging that he had loaned Valentine Pingel $684.95 on Octobér 16, 1925, with the understanding ■that r it was to be returned to him within one year. He also alleges that “in the .course of said indebtedness” the obligation had been reduced by partial payment to $619.50, for ' which" amount he asked, judgment. No appearance having been made on the part of defendant, default was. entered and confirmed on October 8, 1930. Defendant' prosecuted a devolutive appeal, and, in this court, filed a plea of prescription of three years.

It is apparent that, since the debt for which this suit was instituted matured October 16, 1926,' and the suit was not filed until August 5, 1930, more than three years had elapsed. However, where a plea of prescription is filed in an appellate court, the proof in support of it must affirmatively appear on' the face of - the proceedings in the lower court. Henderson v. Whaley, 6 La. App. 344. The record before us does not indícate when the payment on the original loan by which it was reduced from $684.95 to $619.50 was made. It is possible that the date of this payment may -have resulted in the interruption of prescription; consequently we are not in a position to determine whether the claim of plaintiff has been prescribed or not. Hirsch v. Montgomery, 8 La. App. 245; Butler v. Ford, 9 Rob. 113; Collier v. His Creditors, 12 Rob. 398; Canal Bank v. Ascension Bank, 140 La. 465, 73 So. 269.

We have concluded to remand the case ■for the administration oi -proof on the plea of prescription, since plaintiff has - requested us to do so. . '

“If the plea of prescription is filed by the defendant, for the first time in the Supreme Court, and the plaintiff demands it, the cause will be remanded to try that issue in the court below.” Landers v. Tuggle, 22 La. Ann. 443.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it rs now ordered that this case be remanded to the civil district court for further proceedings according to law and consistent with the views herein expressed.


text:
    No. 13,540
    Orleans
    HALPERN v. CORNELISON ET AL.
    (April 13, 1931. Opinion and Decree.)
    Solomon S. Goldman, of New Orleans, attorney for plaintiff, appellant.
    Harold J. Winling, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Charles J. Cornelison, with his father, James B. Cornelison, as surety, rented a picture show from plaintiff for the sum of $75 per month for eleven months. One month’s rent was paid in cash, and ten notes of $75 each were issued for the balance of the rent. The notes were not paid, and plaintiff brings this suit against father and son praying for judgment in solido.

In a joint answer both defendants set up fraud on the part of plaintiff in executing the lease, in that the gross receipts of the picture show which had been operated by plaintiff had been misrepresented. The son, Charles J. Cornelison, prayed for judgment in reconvention for $140 representing the first month’s rent of $75 and $65 which he had paid for a stage curtain.

The trial court held that no fraud had been practiced upon Chas. J. Cornelison, and rendered judgment against him as prayed for, and he has- not appealed. As to James B. Cornelison, the father, it was held that he had been deceived by fraudulent representations, as a result of which he was induced to sign the lease as surety, and the suit as against him was dismissed, and judgment in reconventiou in his favor and against plaintiff for the sum of $140 was awarded. Plaintiff has appealed.

Since Charles J. Cornelison has not appealed, we are only concerned w.ith the propriety of the judgment in favor of James B. Cornelison, his father. In so far as the finding of fact upon the question of fraud raised by the pleadings is concerned, we are of the opinion that it is sustained by the record, but in awarding James B. Cornelison judgment .in reconvention we are of opinion that the trial court was in error. To begin with, judgment in reconvention is only asked in the name of Charles J. Cornelison, and it is admitted in the answer that the first month’s rent was paid and the curtain bought by Charles, and not Jámes Cornelison. It is true that on the trial of the case it developed that the funds for that purpose were obtained from the father, but that fact does not alter the situation.

The trial court found that no fraud was practiced on the son, but only with reference to the father who did not sublease the show, or buy the curtain, his only connection with the transaction being as surety on the lease. The judgment in re-convention in his favor must be reversed.

For the reasons assigned, it is ordered that the judgment appealed from, in so far as it runs in favor of James B. Cornelison on the main demand, is affirmed. It is further ordered that the judgment in favor of James B. Cornelison and against plaintiff, Ben Halpern, for $140 in reconvention is reversed, and it is now ordered that there be judgment in favor of Ben Halpern and against James B. Cornelison dismissing his demand in reconvention. The costs of appeal to be paid by appellee.


author: JANVIER, J.

text:
    No. 13,593
    Orleans
    JAMES v. RIVET ET AL.
    (March 23, 1931. Opinion and Decree.)
    (May 13, 1931. Rehearing Refused.)
    P. L. Fourchy, of New Orleans, attorney for plaintiff, appellant.
    Chas. J. Rivet, of New Orleans, attorney for defendants, appellees:
   JANVIER, J.

Plaintiff, a colored cook, was knocked down by an automobile driven by the son of one of the defendants. She alleges that she had left the residence at which she worked and which was located on Octavia ’street, between Ereret street and Claiborne avenue, and that she had walked along the lower side of Octavia street to Ereret street for the purpose of boarding a street car, which would pass on the latter street; that when she reached the corner of Freret and Octavia streets she proceeded to cross Freret, but that, as a street car was approaching, she stood at a spot near the middle of the street to allow the street car; which she intended to board, to pass her and come to a stop, so that she might,- by- proceeding around its rear end, enter by the rear doorway; that just as the street car came to a stop and just as she started to pass behind it she was violently struck by the automobile in question.

She alleges that the automobile was owned by Trist B. Rivet and was “being driven and operated with his knowledge and consent and for his account 'by one Henry B. Rivet”; that the said Henry B. Rivet was a minor, whose father, George Rivet, was in the automobile, and that, both Trist B. Rivet and George Rivet are i-esponsible for the actions of the said driver of the car, and that both are ’ therefore liable to plaintiff.

On an exception to the citation the suit was dismissed as to one of the defendants, Trist-B. Rivet, and he is no longer interested in the matter. .

The evidence shows that the automobile was being driven by Henry B. Rivet, that the said driver was of full age of majority and was the owner of the automobile. It is difficult, then, to understand on what theory it would be possible to hold George Rivet liable. Surely the fact that he was a -passenger in the car would not render him liable to a third person for injuries caused by the driver, if it was not his car, and if the person driving- was not in his employ and was not his. minor child. Still, he himself gave testimony which may justify the belief that he, to some extent, was interested in the ownership, of the automobile, and since this question was not raised, and since, at all events, we have come to the conclusion that there is no liability in any one, we deem it advisable to decide the case on the merits.

Defendant contends that plaintiff was not on the usual pedestrian walkway across Freret street, but that she was some twenty or thirty feet below the actual intersection when she left the river side of Freret street and proceeded into the street and walked directly in front of the approaching automobile.

We find the facts to be that the street car, which was on a downtown trip on Freret street, had stopped at the lower side of Octavia street to allow prospective passengers to embark, and that the automobile, which was following, had come to a stop in the rear, and that, just after the street car started, the automobile also started and turned slightly to the left, so that it might pass, and that, while it was alongside’the street car and near the front end thereof, plaintiff stepped in front of it, having emerged from a position of obscurity behind certain bushes on the side.walk.

There can be no doubt that, when plaintiff was picked up, she was quite a‘distance below the intersection of Octavia street, and, in view of the fact that the automobile is shown to have been stopped almost instantly after striking her, it necessarily; follows that she could not have been crossing Freret street at the - usual crossing place. - r

The judgment appealed from is affirmed at the cost of appellant.


author: JANVIER, J. PER CURIAM.

text:
    No. 13,327
    Orleans
    HIMEL v. FELLMAN
    (February 16, 1931. Opinion and Decree.)
    (March 23, 1931. Rehearing Refused.)

      :.C..’..J.~ Rivet, of New Orleans, attorney .■for plaintiff, appellee.’
    Monroe & Lemann,..of New. Orleans, attorneys for defendant, appellant.
   JANVIER, J.

■ Plaintiff seeks the’ return of a deposit-of $1,500 made with ¡.defendant, ;-a.:real estate’ .agent; in connection !with-..' an' "of-fen/ made,:, by. plaintiff through the - said iagent to.’ purchase for the ■ sum--,.of $15,000i-''certain .real ': estate on . the Gulf cdast’/in -iMississippi.” . • . ,

/ The petition, .//vithoút so alleging, treats the said offer’ (to’ purchase, as an’absolute nullity, makes no mention whatever of the pthey. party to/the - contract to ’ purchase the" real estate,.. to;.wit: the prospective vendor and, after charging that the said ugreemént-■ is-. ’not specifically enforceable by '.either -party, prays for the return of the deposit. ■ ’■

.■.Defendant, the. real estate agent,, main; tains, that he cannot return the deposit except with the consent of the other party "to" the contract.' By ré’coriv’entíonal de¿mánd.'-’he. aslrs .for’.his commission on the .sale",which he ■ claims .he. negotiated.

The district court held that the contract was not specifically enforceable by either party and, therefore, concluded that, since the agent had not procured a contract enforceable in law he had not earned his commission. Judgment was, therefore, rendered in the court below in favor of plaintiff condemning defendant to return the full amount of the -deposit.

The other party to the contract was not before the court and we cannot see how such a judgment could have been rendered in view of the fact that the defendant filed a plea of “non joinder of a necessary party defendant” because our Supreme Court has said in Maloney v. Aschaffenburg, 143 La. 509, 78 So. 761, 767, that the other party to such a contract is “a necessary party to such a judgment.”

In that case the facts were quite similar to those which are now before us and the court held that where a prospective purchaser makes an offer to purchase and it is accepted, the agent who negotiated the transfer becomes the mandatory of both parties and, a suit for the return of the deposit cannot be brought against the agent alone because “where a person is the common agent of others, and is called upon to account, there should be but one proceeding, to which all those in interest should be made parties, and their rights determined in concurso.”

True, if the validity of the contract be not involved, or if it be involved only as an unessential incident, then the other party may not be necessary, as the court said in Maloney v. Aschaffenburg, to which we have referred:

“The general rule is that any one having an actual interest in a controversy presented to a court for its' determination should be made a party to the suit. Where, however, a suit incidentally involves the rights of a person who is not a party, the court may proceed to decide those questions which only concern the litigants and in which that person has no interest.”

The situation here does not justify our holding that the other party to this contract is not interested in the deposit or in the maintenance of the contract and the situation resembles- that which existed in the Maloney case from which we now quote further as follows:

“The sole issue, the ownership of the deposit of $4200.00 is one in which Aschaffenburg admittedly has an interest, and does not solely eoncérn plaintiffs and Willard & Eiseman.”

It is true that our Supreme Court held in Villemeur v. Woodward, decided by it on Jatuary 5, 1931 (132 So. 361) that where the nullity vel non of the contract is only incidentally involved the other party need not be brought into the suit but in that case the contract in connection with which the deposit had been made had never been signed by the other party, and, therefore, was in fact held to be no contract at all.

Here, however, the contract was signed by both parties and, although there appear within it certain omissions as tp description and uncertainties as to method of payment, nevertheless, we do not believe that, in the absence of the other party, it can be treated as an absolute nullity.

To decree that the deposit must be returned is. to decree the nullity of the contract and, under the doctrine of Maloney v. Aschaffenburg, supra, we cannot render such a decree in the absence of one of the necessary parties.

But the matter is now before us on motion to dismiss the appeal on the ground that the amount in dispute exceeds our jurisdictional limit. We have thought it advisable to go at length into the matter because in Villemeur v. Woodward, supra, we transferred to the Supreme Court a case involving a situation somewhat resembling this and the Supreme Court transferred the appeal back to us, holding that the nullity vel non of the contract was involved only incidentally and, that on the face of the record, there were only two parties interested, to-wit: the depositor and the depositary, and that there was nothing in dispute except the deposit, the amount of which was within the limit of our jurisdiction.

Here, however, as we have shown the third party is necessary because there is involved the question of the nullity of the contract in which that third party is interested.

If the nullity o'f the contract is necessarily involved then the' amount of the contract and not the amount of the deposit determines jurisdiction. Henry J. Boisseau v. Vallon & Jordano, Inc., et al., 15 La. App. 389, 132 So. 237; Hunley et ux. v. Ascani et al., 14 La. App. 95, 129 So. 164; Bussey v. Wise-Miller et al., 14 La. App. 104, 129 So. 166; Bussey v. Barilleaux et al., 14 La. App. 82, 129 So. 167.

In view of the provisions of Act 19 of 1912 it is ordered, adjudged and decreed that this appeal* be and it is transferred to the Supreme Court of Louisiana to he disposed of according to law; the transfer to be made' within thirty days after this judgment becomes final and, if not so made, then the appeal to be deemed dismissed; defendant and appellant to pay. the costs of appeal in this court, the remaining costs to await final determination of the matter.

ON APPLICATION FOB. REHEARING

PER CURIAM.

Counsel for both parties , object to our statement that this matter came before us on motion to dismiss the appeal. We find that the statement to that effect was made in error, as there is in the record no such motion. When the matter was before us on oral argument some months ago, the question of our jurisdiction, vel non, was raised, and both counsel agreed to submit to us briefs on the question of whether the' amount in dispute was the $1,500 deposit, or the $15,-000 contract.

After many months, no briefs on this question were filed, and, as the Supreme Court had in the meantime acted upon certain other cases involving questions which we think similar, we concluded to hold this matter no longer, but to transfer it to the Supreme Court as involving an amount in excess of our maximum jurisdictional limit.

Since we are authorized and, in fact, required to refuse on our own motion to take jurisdiction of a case which, by reason of the matter involved, is beyond our jurisdictional limit, it is of no importance that we transferred the appeal on our own motion, rather than on motion of one of the attorneys.

On reexamination of the record we are confirmed in our opinion originally announced. The contract of sale' which is in the record is signed by both parties and we are not authorized to treat it as an absolute nullity. We think that there is involved in this case the validity of that contract as one of the necessary issues.

The rehearing requested by both parties is refused.