author: TALIAFERRO, J.

text:
    No. 2892
    Second Circuit (Second Division)
    MARTIN v. THE HOME INS. CO.
    (April 9, 1931. Opinion and Decree.)
    Lee & Lindsey, of Minden, attorneys for plaintiff, appellee.
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff alleges that on January 2, 1925, a Ford coupe, owned by him and insured against loss from fire by defendant’s-policy, was totally destroyed by fire originating in said car while it was in use for pleasure by his wife on the public highway in Webster parish; that, while the amount of said insurance, fixed in said policy, was only $473, the actual value of the car at date of fire was $630.67.

In addition to the amount of the insur-. anee policy, plaintiff demands judgment for 25 per cent thereof as statutory penalty, $150 attorney’s fees and $94 for towing the burned car to the nearest garage and storage thereon.

It is alleged that said policy at time of fire was in full force and effect; that plaintiff had complied with all the terms and conditions thereof; that he gave to defendant notice of said loss by telegram and letter the day following the fire and furnished proof of loss oii January 10, 1925, as required by the policy; that immediately after the fire he had the wreck towed to a garage in Gibsland at a cost of $10, and stored same in compliance with the terms of the policy; that some time prior to January 15th defendant had said wreck inspected, and by letter of that date, attached to and made part of the petition, admitted that it would cost $377.90 to repair the burned car, but only offered petitioner $302.32 in full settlement of the loss; that on January 17th he advised defendant that he would not accept this offer, but that, if defendant would have said coupe repaired, he would accept the repairs in lieu of all claims under the policy on account of the fire; that defendant made no reply to this proposition, save that on January 23, .1925, submitted to petitioner additional blanks for proof of loss; that said blanks were promptly filled out and returned to defendant company on January 25th, but were deemed unsatisfactory; that he wrote the insurance company on the subject of this loss on February 4th and 17th, but received no reply to these letters until February 19th, just before expiration of the sixty-day period for settlement of the loss, defendant demanded an appraisal of said loss; that said demand for appraisal was made in bad faith and for the purpose of delaying settlement of the claim.

Plaintiff admits that he agreed to accept the offer of $302.32, after having declined to do so, provided the amount would only apply as a credit against his loss, but not in full settlement, which defendant refused to consider.

It is further; admitted that the Commercial Credit Company, Inc., of New Orleans, La., held a mortgage against said Ford coupe at time of its destruction by fire on which there was a balance due of $43.70.

Defendant, under full reservations of its rights, filed an exception of prematurity to the suit of plaintiff, based upon the following stipulations contained in the insurance policy sued on, viz.:

“In case the assured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser. The appraiser shall first select a competent and disinterested umpire; and failing for fifteen (15) days to agree upon such umpire, on request of the assured or th¿s company, such umpire shall be selected by a judge of a Court of record in the County and State in which the property insured was located at time of loss. The appraisers shall then appraise the loss, and damage stating separately sound value and loss or damage to each item; and failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of sound value and loss or damage. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.
“This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or 'proceeding on its part relating to the appraisal, or to any examination herein provided for; and the loss shall in no event become payable until sixty (60) days after the notice, ascertainment, estimate and verified proof of loss herein required, have been received by this company, and if appraisal is demanded, then not until sixty days after an award has been made by the appraisers.”

It is further averred in this exception that the parties hereto could not agree lipón the amount of loss or damage, and that exceptor, in keeping with the provisions of the policy, demanded an appraisal, which plaintiff refused.

The exception was referred to the merits by the court, but not passed on, by the judge independently of his decision on the merits.

After the exception of prematurity had been disposed of, defendant, reserving its rights under the exception, answered.

Issuance of the policy sued on and it being in full force and effect at the time of fire is admitted. It is also admitted that plaintiff gave notice of the fire as alleged in his petition, but it is. denied that sufficient proof of the loss was given as required by the terms of the policy; and it was admitted ^that the burned car was towed to the garage in Gibsland and thereafter inspected by defendant; that, after such inspection, in order to compromise with plaintiff, and for that purpose only, defendant offered to pay $302.32 in full of its liability as insurer, which was declined by defendant, and immediately the offer was- withdrawn and plaintiff notified thereof, as well as of insurer’s intention to stand upon the provisions of the policy; that, failing to reach an agreement with plaintiff as to the amount of loss sustained by the burning of the coupe, he was furnished blank proof of loss, but, in filling out said papers, plaintiff claimed the full amount of the policy, without giving credit for depreciation, or for the salvage value of the burned car, and for these reasons the proof of loss papers were unsatisfactory and plaintiff so notified.

Defendant further avers that in good faith it did timely demand of plaintiff that the amount of loss he had sustained on account of the insured car being burned be submitted to appraisers, as provided in the contract of insurance, and that this offer was ignored; that thereafter plaintiff expressed a willingness to accept the $302.-32, which defendant had offered as a full settlement between them, but only as a credit on his claim for the loss of the car, which was declined.

In conclusion, defendant, for further answer, avers that the court is without right or authority or jurisdiction to determine and fix the amount of the claim of plaintiff against it until plaintiff has complied with all of the terms and conditions of the contract policy, including that of referring the matter of loss to arbitrators selected in the manner prescribed by the policy itself.

Defendant prays that this suit be dismissed, but, in the event, for any cause, plaintiff is. given judgment, that credit be allowed for $87.40, being the amount of mortgage debt against said car, which was paid by it. •

The record is clear as to what the plaintiff and the adjusters, acting for defendant, did looking to a settlement of the loss arising from the burning of plaintiff’s Ford coupe.

After -the car was burned, plaintiff caused it to be removed to the garage of Reed Motor Company, in Gibsland, and on January 3d he notified the insurance company of the fire. ' Within ten days, Mr. Boyle, representing the adjusters, inspected the car and undertook to adjust the loss with plaintiff, who insisted upon payment' of the full amount of the policy. On January 12th, at the request of plaintiff, the Reed Motor Company examined the burned car closely to ascertain the parts and accessories necessary to restore it to good condition and submitted to defendant a detailed list thereof with cost of same, totaling $377.90. Upon receipt of this report or estimate, McBride, Bourne & Kennedy, adjusters, on January 15th, wrote to plaintiff as follows:

“We have received a detailed estimate of damage from the Reed Motor Company amounting to $377.90, which will put' your car in first class order according to their estimate of damage.
“We enclose herewith Proof of Loss for the amount of $302.32, being the. amount due you less depreciation of 20%, or $75.58.
‘‘Please sign this before a Notary Public and return at your earliest convenience and you may have this work done where you desire.”

This letter with inclosure reached plaintiff promptly, for on January 17th he answered by declining to accept $302.32 in full settlement of his loss and returned the proof of loss sent to him.

We quote the following from this reply, viz.:

“Will advise here that I cannot agree to accept your offer, of $302.32 as covering liability carried in the policy issued by the Home Insurance Company for the reason that this policy plainly states that I am entitled to $473.00 and no less, if my car is either stolen or destroyed by fire.
“You have stated that you are advised by the Reed Motor Company, of Gihsland, La., that the car can be placed in first class condition for $377.90. If this is. true, they may go ahead and make the repairs, provided they put on an entirely new body and necessary parts, you to pay the entire cost of repairs whether above, or below their estimate.”

After the adjusters received this letter of plaintiff’s on January' 23d, they wrote him in part as follows, viz.:

“We received your letter of January 17th and we do not agree with the figures as set out. Solely for the purpose of complying with the statutes of Louisiana, we are forwarding you proof of loss, which we ask that you kindly fill out in detail, giving all the information you have regarding ■ the fire to your car.”

This letter was written by defendant under full reservation of all its rights and defenses concerning the - matter discussed.

Plaintiff filled out said proof of loss and mailed same to the adjusters who, on January 31st, wrote him as follows, to-wit:

“Being in receipt of documents purporting to be proofs of loss under the above captioned form of policy, you are notified' that the same are incomplete and unsatisfactory to the above named Insurance Company for the reason that the details supporting the amount claimed by you form no part of the purported proof of loss, this being one of the reasons, amongst others, why the same are incomplete, imperfect and not satisfactory.”

On February 19th the adjusters wrote plaintiff as follows:

“In reply to your letter of recent date, please be advised in conformity with the policy contract, the company demands an appraisal of your loss, we being unable to agree as to the amount claimed as a result of the fire which occurred on January 2nd at 5 P. M.
“We ask that you furnish us with the name of your appraiser in order that we may complete proper forms and send to you for signature. We will at that time name our appraiser and proceed in accordance with the policy.”

It does not appear that plaintiff answered this letter, and on March 11th defendant’s adjusters wrote plaintiff:

“We do not see the necessity for this long chain of correspondence in view of our having demanded appraisal under registered letter, in conformity with the policy contract, under date of February 19th.
“We call upon you to name your appraiser in order that we may proceed in conformity with the policy contract.”

Plaintiff did not take much interest in the proposal to have his loss, determined by submission to appraisers, according to the correspondence in the record, hut, after a visit by his attorney to the office of the adjusters in New Orleans, on May 23d, when this matter was evidently discussed, the adjusters wrote plaintiff:

“Your attorney was in the office this morning in reference to your claim, and requested the writer to name our appraiser. We hereby name Mr. Fred Oster of New Orleans as appraiser for Home Insurance Company, who is an entirely disinterested party, and we call upon you to name your appraiser, who must he an expert mechanic and a disinterested party. As soon as we arei in receipt of this, information we will prepare appraisal blanks and forward them to you for signature, at which time the appraisers will get together and arrange to enter into appraisement, or appoint an umpire.”

Nothing further seems to have been done in this connection until October 5th, when the adjusters wrote Mr. J. Rush Wimberly, then attorney for plaintiff:

“Your , letter of the 1st inst., addressed to the Home Insurance Company and to ourselves, has been received, and replying thereto beg to again call your attention to the fact that under dates of February 19th, 1925, March 11th, 1925, and ; again on May 23rd, 1925, we wrote Mr. H. Childs Martin demanding an appraisal under the printed conditions of the policy-, contract. This demand has had no attention from Mr. Martin and we now again beg to demand that this loss and damage be appraised ' as required by the printed conditions of the policy. If Mr. Martin will advise us the name of his appraiser we will immediately prepare the necessary documents and send them to him.”!

It is now well settled that covenants in contracts of insurance presiding that the amount of loss or da’mage thereunder bef submitted to arbitration are valid and binding on both the assured and the insurer. Hart v. Insurance Co., 136 La. 114, 66 So. 558; Hamilton v. Home Ins. Co., 137 U. S. 370, 11 S. Ct. 133, 34 L. Ed. 708; Hamilton, v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 10 S. Ct. 945, 34 L. Ed. 419.

Defendant contends 'that its proposition to pay plaintiff '$302.32 as. outlined in the letter of January 15th was simply an offer of compromise and not an admission of liability 'to any ■ extent. However, there is hot one word in this letter indicating, that such was intended. 'When informed that the repairs necessary to restore the burned 'car to good condition would cost $377.90, defendant ma.de' a reduction of 20 per cent for depreciation and referred to the balance (80 per cent) as “being the amount due you.” To this extent we do not think plaintiff’s action premature. Beyond this amount the action is premature. •

The facts in the Hart case, referred to above, are very much like those of this case, and that case is authority for the conclusions we have reached on the issues presented herein. In that case it was held:

“When, on being notified of a loss, the adjuster of an insurance company writes the insured that the company can replace the property destroyed for a stated sum, and adds, ‘As this -represents the value of the car destroyed and which value is the maximum of the company’s liability, we enclose proof of loss for $750, for execution and return,' the company will be held to the admission of liability for the amount stated.”

After defendant admitted liability to the extent above discussed, and plaintiff declined to accept the proffered amount, contending for the full amount of the policy without deductions of any kind, defendant as the record discloses, in good faith, insisted upon the question of loss being submitted to arbitration as provided in the policy. Defendant was unquestionably within its rights in adopting this course, and did not waive the right by admission of liability to any extent.

“An admission of liability by an agent or adjuster of the insurance company for an amount less, than is demanded in the proof of loss submitted by the insured is not a waiver of the company’s right to an appraisement under the terms of the policy.” Hart case.

The failure of the insured and the insurer to reach "an agreement as to the amount of loss gives rise to the .right to invoke the stipulations of the policy regarding the submission of thé question to arbitration.

It would be inequitable to penalize an insurance company for not paying admitted liability when the insured persisted in claiming the full amount of the policy and declined to submit differences to an appraisement. The Hart case, on this point, holds as follows:

“An insurance company is not liable for statutory penalties under Act No. 168 of 1908 for withholding the amount of liability admitted by the agent or adjuster of the company, as long as the insured demands the payment of a larger sum and refuses to submit to an appraisement under the terms of the policy.”

The Act No. 168 of 1908 has been superseded by Act No. 59 of 192.1 (Ex. Sess.).

The district court gave plaintiff judgment for $522.52, with legal interest from judicial demand, less $87.40. We shall have to amend that decree. The evidence shows that plaintiff incurred expense of $10 for having the burned car towed to a garage. Under the policy this expense is chargeable to defendant, which, added to defendant’s admitted liability, makes $312.-32 due plaintiff. Defendant paid $87.40 of the mortgage debt against the car of plaintiff before this suit was filed and is entitled to credit therefor in this decree, which leaves a balance due plaintiff of $224.92, with interest.

For the reasons herein assigned, the judgment appealed from is amended by reducing the amount awarded plaintiff to $224.92, with legal interest thereon from judicial demand until paid, and, as thus amended, said' judgment is affirmed. •

It is further ordered, adjudged, and decreed that all rights, actions, and defenses to which the parties to this suit are entitled, arising from or growing out of the loss from fire of plaintiff’s automobile, and the insurance policy thereon, which are not specifically foreclosed by this decree, are hereby reserved to them.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2893
    Second Circuit (Second Division)
    WALLENBURG v. KERRY
    (April 9, 1931. Opinion and Decree.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellant. .
    M. L. Dismukes, of Natchitoches, and Peterman, Dear & Peterman, of Alexandria; attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff conducts a small mercantile business in the village of Cloutierville, in Natchitoches parish, and in regular course of trade extended credit to¡ one Paul M. Seick, then engaged in the operation of a sawmill near the village, on open account to the amount of $87.90, for groceries. In addition to this account, plaintiff cashed or took up two checks of said Seick on the Bank of Cloutierville, of which defendant is cashier, for $7.60 and $28.75, respectively, which had been issued to laborers at said sawmill in payment of wages due them for services thereat. These checks were dishonored when presented for payment at said bank, for the. reason that Seick’s account was insufficient to take care of them.

It is alleged in plaintiff’s petition that, after the checks had been dishonored, she decided to institute suit thereon and on the account against 'Seick, and seize the lumber in the mill yard, some four cars, when, after some discussion between them, defendant agreed with her unconditionally that, if she would not invoke the contemplated court proceedings, he would pay the amount due her by Seick; that defend- / ant stated to her that Seick was due him several hundred dollars, and, 'if a seizure of the lumber was made, the labor claims would come in and disastrous results would follow, or words to this effect; that, relying upon the assurances and promises of defendant, she did forego her intention to sue and seize the lumber; that thereafter said lumber was shipped and sold, and defendant so manipulated matters as to collect what Seick was due him, and then repudiated his- obligations with- plaintiff, stating to her that “he had got his money and did not propose to carry out his obligation and contract and she could get her money the best she could.”

Plaintiff further alleges that Seick was insolvent to the knowledge of defendant on July 10, 1925, and had left the parish and his .whereabouts unknown. This suit was filed on October 8, 1926.

In paragraph 8 of the petition it is alleged:

“That on account of petitioner’s inexperience, sha was taken advantage of by Kerry in this matter; that when Kerry refused to comply with his obligation and pay her debt of $104.25, that he had contracted and obligated himself to pay * * * your petitioner consulted attorneys in Natchitoches who brought suit in the district court for your petitioner against Seick * * * in the endeavor to exhaust all remedies against Seick and to reduce the debt as much as possible, that Kerry was liable for, and seized certain lumber, but same had to be released as it was claimed by other persons; that such suit was filed in good faith but under an error and misconception of- fact and law and of her real rights against Kerry, the same cannot be pleaded as an estoppel against your petitioner.”

Defendant denied all the allegations of plaintiff’s, petition touching the agreement by him to pay her the amount due by Seick, specially denying that he asked her not to bring the suit she contemplated, and that to the effect that he “got control of the lumber and at once had it shipped out to his account and manipulated the matter so a to pay himself,” etc.

' He further alleged that plaintiff has been settled with by her acceptance of certain lumber belonging to Seick; that having brought the suit against Seick, as alleged in paragraph 8 of her petition, she is es-topped and debarred from maintaining the present suit.

Defendant reconvened, and asked for judgment against plaintiff on the grounds that some of the allegations of her petition were “libelous and defamatory.”

The district judge ruled out practically all the evidence offered in support of defendant’s reconventional demand, and rejected the demand in full in judgment on the merits of the case. Defendant did not appeal. He asks no amendment of the judgment, but, on the contrary, in brief, prays that it be affirmed.

When plaintiff undertook to prove the allegations of her petition to the effect that defendant agreed to pay the debt due her by Seick, she was met by objection that parol testimony is not admissible to prove an agreement to pay the debt of a third person, under article 2278 of the Civil Code. The objection was sustained by the district judge, but he reconsidered the ruling and admitted the testimony subject to the. objection so that this court would have the evidence before it, in the event of appeal.

If the objection to this line of evidence is good, that will end this suit. If not good, then plaintiff is entitled to judgment.

The testimony of plaintiff, corroborated by that of her brother, when weighed in the light of the circumstances existing at the time it is claimed ■ defendant agreed to pay this debt of Seick, if plaintiff would not create complications by seizing the lumber, convinces us that her allegations on this score are true, and that defendant’s agreement was unconditional. We are further convinced that after this agreement was made, the lumber of Seick was sold and shipped away; that Seick brought to defendant the check or checks representing the price of the sale and he collected the amount due him by Seick, some $800, and, if there was any balance from the proceeds, it was turned over to Seick or to other creditors, but none of it went to plaintiff.

Defendant (p. 23 of Tr.) on this point testified as follows:

“Q. Now you collected it; state the specific acts and how it was collected?
“A. Well, when the lumber was shipped out the checks would be issued to Mr. Seick and he brought the checks to me.
“Q. Brought the checks to you?
“A. Yes.”

Within a short time after these events, the sawmill of Seick’s collapsed financially and he departed from the community, leaving little or no assets behind for his creditors.

If the contractual relation between plaintiff and defendant, arising out of their agreement about the Seick indebtedness, is such as not to fall within some exception to' the literal interpretation of article 2278 of the Civil Code, then it is obvious plaintiff cannot succeed in this suit. For the court to afford relief to her against defendant, it will be necessary to find and hold that the agreement between them, and the promises of the defendant, were of such nature, hedged in by such circumstances and influenced by such interest and considerations, pecuniary or otherwise, as to cause it to fall within an exception to this article of the Code.

This article and others of similar nature correspond to what is known as statute of frauds of the common-law states.* Such are enacted as a matter of public policy, and their usefulness is too well known to require comment.

The weight of authority interpreting statutes of this kind is to this effect: That, if the agreement to pay the obligation of a third person is merely a collateral undertaking, it comes within the statute of frauds; but, if such agreement is independent, not made primarily to answer for another, but is impelled from pecuniary or business motives, accruing to the promisor, then it does not fall within the statute, and parol testimony is admissible to establish same.

Plaintiff held evidences of debt against Seick, part of which, at least, was of a privilege nature, being issued to a laborer who subrogated plaintiff to his rights. The checks, had been dishonored by the bank of which defendant was cashier. Plaintiff, having a small business and doubtless limited capital, naturally became alarmed at the prospect of losing what Seick owed her. The record convinces us that her fears were well founded. It was evidently generally known in the small community about Cloutierville that defendant in some way and to some extent was financing Seick’s sawmill. Defendant admits that he did contribute to the financing of the mill. There was due him several hundred dollars for advances to Seick, when the agreement was made with plaintiff which 'likely was unsecured by privilege on the manufactured products of this mill. Learning of plaintiff’s determination to seize the lumber for her debt against Seick, whether by sequestration or attachment or both, does not appear, defendant became disturbed, as such a course might imperil his chances to collect in full the amount due him. He had a pecuniary interest *to further in seeing that the status of affairs was not molested until the lumber could be sold and the proceeds safely beyond the reach of creditors, save himself. Being thus situated, he had a very material purpose to serve when he induced plaintiff not to seize this lumber. It meant, possibly, considerable money to him to forestall her plans to protect herself. This formed a serious consideration to his undertaking with plaintiff. The measure of his liability on this account being the amount plaintiff was fixing to sue for, and which he agreed to pay to her. The obligation on his part then became primary and not collateral, or one of suretyship.

Under these circumstances, can the defendant escape the fulfillment of his obligation by hiding behind the prohibition contained in article 2278 of the Code? We think not.

The statute of frauds of Nebraska reads as follows:

“In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: * * *
“Second. Every special promise to answer for the debt, default or misdoings; of another person.” Compiled Statutes of Nebraska 1929, sec. 36-202.

In effect, this law is about the same as our article 2278, par. 3, Civil Code.

The United States Supreme Court, in case of Davis v. Patrick, 141 U. S. 489, 12 S. Ct. 58, 59, 35 L. Ed. 826, construing the Nebraska,statute in syllabus, says:

“Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, * * * his promise is not within the statute, although it may be in form a promise to pay the debt of another.”

The court, in passing, referred to Emerson v. Slater, 22 How., 28, 16 L. Ed. 360, on the same subject, and further notes:

“To this may be added the observation of Browne in his work on the Statute of Frauds, sec. 165:
“ ‘The statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant himself.’ ”

Elliott on Contracts, Cumulative Supplement, sec. 1240, p. 292, says:

“Relinquishment of Lien:
“Many recent cases announce and apply ' the doctrine of this section to the effect that a promise to a lienholder by one having an interest in property for his own benefit or protection to pay off the lien thereon in consideration of its relinquishment, or forbearance to enforce it, is an original promise not within the statute of frauds.”

Numerous cases are cited under this section.

The author in, 15 L. R. A. (N. S.) page 224, makes this comment:

“In ascertaining the intention of the promisor in undertaking to pay the debt of another, it has usually been held that if the promisor represented that he was owing the buyer, or had money in his hands belonging to him, and that out of such moneys he would pay the seller, or used other words to like effect, such promise was an original obligation, and not within the statute of frauds.”

Tending to support the principle enunciated in the above-qjuoted authorities, we cite Fabacher v. Crampes, 166 La. 397, 117 So. 439; Baskin v. Abell, 14 La. App. 601, 122 So. 133.

In the Pabacher case, the court refers to Davis v. Patrick, approvingly.

Applying the principle laid down in the above-quoted authorities, we have reached the conclusion that parol testimony was competent to prove the agreement of defendant to pay the debt plaintiff held against Seick; that defendant was actuated by pecuniary interest of his own in making the agreement, which became an independent undertaking on his part and enforceable against him.

The contention of defendant that plaintiff had accepted lumber in. satisfaction of the amount due her by Seick is not sustained by the evidence, nor is the plea of estoppel good against her for having, under the circumstances, endeavored to col- 1 lect the amount by suit befo're calling on defendant for payment thereof.

Por the reasons herein given, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that plaintiff, Miss Gussie Wallenburg, do have and recover judgment against defendant, C. P. Kerry, in the sum of $104.25 with 5 per cent per annum interest thereon from July 10, 1925, until paid, and costs of suit, including those of appeal.


text:
    No. 2929
    Second Circuit (Second Division)
    COHN v. WARDLAW ET AL.
    (April 9, 1931. Opinion and Decree.)

      Rusca & Cunningham and Cunningham & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    C. H. McCain, of Colfax, attorney for defendants, appellees.
   TALIAFERRO, J.

Plaintiff, alleging himself to be the owner of a tract of land containing 20 acres, described in his petition, brings this suit against the defendants, who, he claims, have disturbed his real and actual possession, to have that possession restored to him and he be quieted therein.

' He contends that his possession extends back to August,. 1922; that defendants disturbed his. possession within a month prior to the filing of this suit by “breaking open the gate and by placing a tenant in the dwelling and attempting to plow the land.”

Defendants assert that they are in the actual possession of said land as owners, and that they and their authors in title have had “continuous, uninterrupted and full possession of said property”; that plaintiff has not had the possession of the land, and is therefore not entitled to bring this possessory action.

The plaintiff purchased the property in question at tax sale in August, 1922, under assessment in the name of Manda Coutee, and bases his claim of ownership upon that- instrument. At the date of this tax deed, in fact for the years 1922, 1923 and 1924, this land was in possession of Frank Rachal as tenant of Manda Coutee, and she collected rents for each of said years. The place was not cultivated during the year 1925, and the residence thereon does not appear to have been occupied.

Plaintiff admits, when interrogated as a witness, that he made no effort to possess, nor collect rents from, the property for the years 1922, 1923 and 1924. He is not certain that he has been possessed with it since the tax sale to him. He. did, however, engage J. G. De Louche, who lived adjacent to the land, to look after it and to "notice” it after Rachal moved away in the fall of 1924. De Louche testified that he “nailed • up the house and shut the gate and tied it with a wire,” but beyond this plaintiff seems not to have exercised any visible acts of ownership or possession of the property.

Manda Coutee had the physical corporeal possession of the land, through tenants, until the latter part of the year 1924, and plaintiff is not in a position to maintain a possessory action against those holding-under her unless he can show clearly that his possession was sufficient to, and did actually, supersede hers. She sold the land to C. E. Jowers in March, 1925, and he, with others, went upon and inspected the' premises at the time of purchase. The doors were found not to be locked or nailed, and the gates were open. Jowers locked the house, closed the gates, and engaged Victor Verfiher, who lived near the place, to look after it for him.

None of the witnesses knew that De Louche was representing plaintiff with regard to the possession of the place. Evidently he kept his stewardship to himself. The most that can be said of his activities as overseer for plaintiff is that he nailed up the door of the house. and tied the gate.

Jowers sold the land to defendants in the fall of 1925. They immediately went into actual possession of same, made arrangements to plant some of it in alfalfa hay, and otherwise exercised their rights as owners.

“The actual possessor, when he proves that he. has formerly been in possession, shall be presumed also to have been in possession in the intermediate time.” Civ. Code, art. 3492. ’
“When a person has once acquired possession of a thing by the corporal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.” Civ. Code, art. 3442.
“* * * Although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact.” Civ. Code, art. 3443. See Miller v. Lumber Co., 130 La. 662, 58 So. 502; Pardee Co. v. Bodcaw Lumber Co., 3 La. App. 169.

The possession of Manda Coutee continued to embrace this small tract of land after she had in fact ceased actually to cultivate it, and this possession was passed on to her vendee and by him to defendants, who experienced no difficulty in assuming possession and control thereof. .

The simple act of De Louche in nailing up the house and tieing the gates did not effect such possession of the entire premises as to oust that which Mrs. Coutee had at the time and transmitted to her vendees.

The lower court rejected plaintiff’s demand and dismissed his suit, and, after a careful reading of the record, we concur in this judgment, and same is hereby affirmed.


text:
    No. 3043
    Second Circuit
    MOWER v. BARROW
    (April 9, 1931. Opinion and Decree.)

      T. H. McEachern, of Homer, and Goff & Barnette, of Arcadia, attorneys for plaintiff, appellant.
    Atkins & Meadors and McClendon & Seals, of Homer, attorneys for defendant, appellee.
   TALIAFERRO, J.

This is a petitory action wherein plaintiff seeks to recover judgment recognizing him to be the owner and entitled to the possession of N. % of S. W. %, section 4 and N. E. % of S. E. % section 5, township 22 north, range 6 west, in the parish of Claiborne, containing 120 acres, more or less.

Plaintiff declared upon a chain of title by which he expects to recover, as follows, viz.:

That he acquired the land from Calvin R. Mower on April 10, 1925; that Calvin R. Mower acquired same from Virginia T. Johnson on May 10, 1907; that Virginia T. Johnson acquired from B. F. Allen by sheriff’s deed April 18, 1898, in a suit against said Allen, made under a writ of seizure and sale; .that B. F. Allen acquired the property from M. M. Taylor, C. N. Taylor, Mollie E. Taylor, wife of J. C. Willis, and Mary I. Taylor, by deeds dated January 13, 1890, and April 11, 1890; that those four vendors acquired title to N. y2 of S. W. Vi of section 4 by act of exchange with their father, Dr. J. P. Taylor, January 13, 1890, and acquired N. E. % of S. E. of section 5 by inheritance from their mother, Rebecca Monk Taylor, who, it appears, died in 1870.

Plaintiff also in his petition sets up briefly the chain of title to each of said tracts—the forty-acre tract and the eighty-acre tract—from the United States down to J. P. Taylor and his wife, Rebecca Monk Taylor, but, inasmuch as both sides to this suit trace their titles to a common author, viz: the heirs of J. P. Taylor and wife, we. omit further reference to the chains prior to the ownership by the Taylors.

Plaintiff alleges that T. E. Barrow, defendant, is claiming these lands as owner and is in illegal possession thereof without any right, title, or interest therein; that said Barrow, on May 28, 1924, executed a deed to Haynesville Lumber Company, Inc., conveying the timber on said lands, and that said company claims said timber and possession thereof without any legal right or interest therein or thereto.

Defendants, before further pleading, filed prayers for. oyer of the title deeds alleged on by plaintiff as constituting the chain of title through which he expects to recover the land in controversy, which were sustained by the court, whereupon plaintiff produced and filed in compliance with the court’s rule, certified copies of the various deeds and other documents and papers requested in the prayer for oyer, and referred to in the petition'. The rule was declared discharged by the court, and the deeds, documents, and other papers filed in compliance therewith became a part of the pleadings in the case. Code Prac. arts. 174, 175; Baldwin Lumber Co. v. Todd, 124 La. 544, 50 So. 526.

After plaintiff complied with the rule on the prayer for oyer, defendants filed exceptions of no right or cause of action, which were by the court referred to the merits of the case. Defendants then answered fully the petition and demand of plaintiff.

Defendant Barrow, after denying other allegations of plaintiff’s petition, admitted that he claimed the land in question and that he is in possession thereof, under good and valid title thereto. He admits sale of the timber to Haynesville Lumber Company, Inc., as alleged.

For further answer, this defendant avers:

That he acquired from J. D. Palmer on December 2, 1919, the following described tract of land in Claiborne parish, viz.:

“SEVi of SE% of Section 5, and SW% of SW% of Section 4, and NE% of NE% of Section 8, and 15 acres in a triangular shape lying between the residence of the M. M. Marcus place and Dr. J. P. Taylor place, said 15 acres acquired by Dr. J. P. Taylor from M. M. Marcus by private act on March 17, 1873, as per deed recorded on page 311 oil Book L conveyance records-of Claiborne parish, Louisiana, said 15 acres all being located in NW^ of NW(4 Section 9 Township 22 N. R. 6 West. Also all that part of the N% of SW%, S% of NWí4, and NW% of SE% of Section 4, and all that part of NE1^ of SE% of Sec-1 tion 5, lying south of Middle Fork Creek, all of said land being located in‘Township 22 N. R. 6 West, containing 215 acres more or. less, as will be seen by reference to said deed bearing date December 2, 1919, which is of record on page 39, book 17, conveyance records of Claiborne parish, a certified copy of same being hereto attached and made part hereof.”

That said J. D. Palmer acquired said land from Charles M. Taylor, Mrs. Mattie E. Willis, and M. M. Taylor on January 14, 1915. That he and his said author in title, J. D. Palmer, have held and possessed said lands, including all that part of N. % of S. W. Vl, section 4, and N. E. Vi of S. E. Vi, section 5, lying south of Middle Fork Creek, township 22 N., R. 6 west, continuously, corporeally, peaceably, publicly, unequivocally and without interruption, in good faith, under titles translative of property, believing they each had acquired from the true owner, since January 14, 1915, to the date of filing of this suit; said Palmer so possessing as owner from January 14, 1915, until December 2, 1919, and defendant so possessed thereafter. That they have annually paid all taxes assessed against said property, the said 215-. acre tract, farmed and cultivated same personally and through tenants, cut timber therefrom, and in general exercised all the rights and privileges incident to ownership. He expressly disclaimed ownership to or interest in any part of said 120 acres which is north of Middle Fork Creek. He specially pleaded prescription of ten (10) years acquirendi causa, as. provided by articles 3478 to 3498 of the Civil Code, and called tbe widow and heirs of J. D. Palmer, his grantor, deceased, in warranty to defend his title to the land involved in this litigation.

The Haynesville Lumber Company, Inc., admitted purchasing the timber on the land, as alleged by plaintiff, from T. E. Barrow, defendant, and possession thereof. In all respects this defendant’s answer is the same as that of its co-defendant, T. E. Barrow. A plea of ten years, prescription was interposed against plaintiff’s right to recover. This defendant called its vendor in title to the timber in warranty, praying for judgment against him should plaintiff succeed to any extent in his suit.

The widow and heirs of J. D. Palmer, deceased, called in warranty by defendant Barrow, made no appearance nor filed answer.

On the day the case was called for trial, plaintiff filed pleas of estoppel and prescription of ten years against defendants. The court minutes do not show the disposition made of these pleas, but we assume they were referred to the merits,' as the court passed on them in its judgment disposing finally of the case.

The plea of estoppel was intended to forestall any efforts defendants might make • or undertake to question the sufficiency and validity of the titles of the common author,, the Taylor heirs.

The plea of prescription is based upon the following allegations of fact contained therein, viz.:

“That your plaintiff and his authors in title have exercised possession of the 614 acres of .land described in his deed by cultivating part of said land with title to the whole, and by exercising complete dominion over same, cutting timber therefrom, living on part of same, either in person or through tenants, paying taxes on same since about the year 1890, and for more than ten years, under title translative of property,” etc.

PLEA OP ESTOPPEL.

The lands under discussion were owned by the heirs of Rebecca Monk Taylor in the year 1890. They acquired. N. % of S. W. section 4, in exchange with their father, Dr. J. P. Taylor, and inherited N. E. % of S. E. Y4,, section 5, from their mother.

It is admitted on both sides that their respective titles are traceable to and. arise from the Taylor heirs. No citation of authority is. needed to support the proposition that parties to a petitory action will not be allowed to assail or impugn the title of the common author.

In view of this situation, the plea of . estoppel served no other purpose than to -call to the court’s attention the admitted facts and remind it of the law applicable thereto. However, it does not appear that any effort was made by defendants, to question the validity of the titles of the common author.

PLEA OF PRESCRIPTION OF PLAINTIFF.

The evidence of plaintiff and defendants unquestionably discloses that plaintiff, nor those prior to him in title, ever has had actual corporeal possession of the lands sued for. Plaintiff’s plea of prescription seeks to establish, that these lands are, or were, constructively in possession of plaintiff and his. authors in title on account of them forming part of the large tract of 614 acres, a part or parts of which, it is alleged, had been in possession of plaintiff’s authors in title in the past.

Plaintiff’s petition admits that defendants are in possession of the lands sought to he recovered. If this be true, and for the purposes of this suit it is a closed question, then plaintiff cannot be in possession. Two possessions, of the same rank and character, cannot co-exist as to the same property. One or the other must be the superior. Anyway, it is admitted that defendants are in possession, and plaintiff must be held to his pleadings. He cannot shift positions.

The evidence further reveals that, whatever be the nature of defendants’ possession, same had its inception in 1915 immediately after the deed of the Taylor heirs to J. D. Palmer, and that such possession was continuous and uninterrupted until the filing of this suit.

It is obvious that such prescriptive rights as may have accrued to plaintiff and his authors in title prior to 1915, when viewed in the light of th^ pleadings, were superseded by the possession of defendants and their authors in title.

The plea of prescription is not good.

EXCEPTION OF NO CAUSE OF ACTION OF DEFENDANTS.

Defendants, in brief, urge us to sustain the exception of no cause or right of action which is. leveled against plaintiff’s petition^ as enlarged hy the filing of deeds, etc., under the prayer for oyer, and which was not directly passed on by the court in .its decision of the case on the merits.'

It is now well established by the jurisprudence of this state that the appellate court is without authority to decide exceptions in a ease not directly passed on by the trial court. Siragusa et al. v. I. C. R. R. Co., 152 La. 745, 94 So. 376; Keith v. Lee, 13 La. App. 314, 127 So. 139.

For this reason we shall have to abstain from a consideration of defendants’ exception of no cause of action.

It is patent, that unless there is some fatal defect in plaintiff’s title, or that.his ownership has. been lost to others by adverse possession, he must prevail in this case, for he traces his title back to the Taylor heirs in 1890, whereas defendants’ title sprang from the same source in 1915.

Evidence on the part of plaintiff, while somewhat indefinite, tends to show that B. F. Allen, and probably one or both of the Mowers, had tenants on some portion of the 614-acre tract they owned, and collected rents, but there is little or no evidence to this effect since the year 1912.

Dr. J. P. Taylor died in 1912. His residence was located in the southeast corner of S. E. % of S. E. %, 'section 5, and the premises extended over into S. W. % of S. W. %, section 4, N. E. 14 of N. E. % section 8, and N. W. 14 of N. W. 14, section 9, all of which, except a part of the 40 acres in section 9, he owned at the time of his death. There were fields on nearly every side of the residence and premises.

M. M. Taylor, a son of Dr. Taylor, deceased, testified as a witness on the trial of this case. He stated that, after he and bis co-heirs sold the 614-acre tract to B. F. Allen in 1890, Dr. Taylor had, and used, a pasture about one-fourth of a mile northeast of the residence; that this pasture was not on the Allen land; that Allen never used it; that the pasture was on the right of and ran up the road going towards' Colquitt; and that the pasture fence had not been moved since 1917.

Several other witnesses testified practically to this effect:

That J. D. Palmer, in January, 1915, after his purchase of the 215-acre tract from tlie Taylor heirs, took physical possession of same by cultivating the open lands, through tenants, used the pasture and out hay from portions of it, cut timber and made staves from the land, and in many other respects exercised openly the rights and privileges of ownership.

In December, 1919, after1 his purchase of the property from Powell, his stepfather, T. E. Barrow, defendant, moved into the Dr. Taylor residence and held possession of the entire property, as did his vendor, Powell, for the next five years, when he moved away, leaving the property in custody of his tenants.

Mr. Barrow engaged a surveyor to run the lines of the land he purchased from the Taylor heirs. This survey, as well as that of the engineer,' Lupo, made at a later date, discloses that the pasture referred to by the witnesses, including M. M. Taylor, embraced some 20 acres in N. E. Vi of S. W. Vi, of section 4, and 2% acres in the southeast corner of N. W. Vi of S. W. Vi, section 4, and extends southerly into S. % of S. W. Vi, section 4. A blueprint map of the locus in' quo, filed in evidence, reflects the situation as it is affected by possession of the pasture. This pasture had been in existence and used as such long prior to 1915,' and flanks the road to Colquitt. It was inclosed.

There is very little controversy as to the facts of possession of the 215-arce tract by Palmer and Barrow since 1915, and as they held title to the 120 acres in controversy, it is contended that their possession of part of same and of other portions of the land included in their deeds, all adjacent, formed the predicate for the prescription of ten years acquirendi causa.

Plaintiff argues that the description of the “George Nelson” land in the deed to Palmer from the Taylor heirs, and in deed to Barrow from Palmer, is so ambiguous and indefinite that it cannot form the basis for prescription of ten years’ acquirendi causa.

There is no positive evidence in the record to identify any particular parcels of land as constituting the “George Nelson” tract, dehors the deeds to Palmer and Barrow, and without such positive evidence showing a contrary composition of this tract, it will be assumed that the deeds themselves correctly determine the question. These descriptions read:

“Also about 80 acres of land known as the ‘George Nelson’ land in N% of SW14, Sy2 of NW%, NW!4 of NE14, and all that part of NE% of SE%, Sec. 5, lying south of Middle Pork Creek, that was once owned by George Nelson. The last described 80 acres known as- the ‘George Nelson’ land all lies south of Middle Pork Creek, no land north of said Middle Pork Creek is to be included in this deed.”

Reference to the blueprint map in the record discloses thair Middle Pork Creek traverses the N. W. Vi oí S. E. Vi and N. E. Vi of S. W. Vi, cuts the southwest corner of S. E. Vi of N. W. Vi, and traverse^ S. W. Vi of N. W. Vi, of section 4; it does not touch N. W. Vi of S. W. Vi, section 4, nor N. E. Vi of S. E. Vi, of section 5. Evidently a much greater acreage than 80 is embraced in this description.

Any one reading these deeds will be immediately impressed with the fact that the creek is the northern boundary of the lands intended to be conveyed, and that, if any 40 does not touch the creek, but is south of it, such in its entirety was conveyed.

In paragraph 4 of plaintiff’s petition, it is alleged that George Nelson once owned N. yz of S. W. y, of section ' 4, hut his ownership of the other subdivisions at any time is not established.

The lands involved herein, together with adjacent land aggregating 614 acres, were acquired by B. F. Allen from the Taylor heirs in January, 1890. He mortgaged the entire tract to Virginia T. Johnson in January, 1892, for ¡¡¡1,000. This debt was not paid in full, and on February 7, 1898, the mortgagee began foreclosure proceedings against Allen íd the district court of Claiborne parish. An order was- signed by the then judge of that court, directing that notice of demand of payment be made on defendant, and, if not complied with within legal delays, a writ of seizure and sale issue commanding the sheriff of the parish to seize and sell the mortgaged property to pay and satisfy the notes foreclosed on. The original papers in this suit are before us. Notice of demand issued promptly, and was served February 8, 1898. Here the, record closes, save for the sheriff’s deed to Virginia T. Johnson of the mortgaged property, dated April 18, 1898. No writ of seizure and sale appears in the record of the suit, and no return of the sheriff thereon, if such ever issued. Plaintiff does not specifically allege that such a writ issued, and no attempt is made in the pleadings or evidence to explain or account for its absence.

Defendants contend that the failure of plaintiff to produce the original writ of seizure and sale and sheriff’s return thereon, and no averment, supported by satisfactory proof, that such writ did actually issue, strikes a fatal blow to plaintiff’^ title to the lands sued for, even though such title be otherwise valid. They are supported in this position by law and jurisprudence. A long line of decisions of the Supreme Court uniformly hold to this effect.

In Dede v. Boguille, 8 La. Ann. 138, the court said:

“The settled jurisprudence of this Court is, that to constitute a title translative of property, the judicial sale must be accompanied by, the judgment and execution.”

And again, in Hyman v. Bailey et al., 13 La. Ann. 450:

“It is unnecessary now to express an opinion upon the merits of the cause, for plaintiff has shown no title, and he has no right to force defendants to exhibit their title, until he has established an adequate interest in the land to authorize it. Plaintiff pretends to have purchased the land at Sheriff’s sale, on the 7th of April, 1855, by virtue of an execution issued out of the District Court of the parish of Rapides, on a judgment of A. Lilly v. S. E. Cuny et al., wherein' defendant, Bailey, was a judgment debtor. The only evidence of such title is the Sheriff’s deed of sale of the land to plaintiff. This is. insufficient. It is incumbent on a party, claiming under a sale' by virtue of a fi. fa., to produce the writ of execution, the Sheriff’s return, and the judgment.”

In the more recent case of Fontelieu v. Fontelieu, 116 La. 866, 41 So. 20 the Supreme Court reviewed at length our jurisprudence on this important question. To the same effect are the following eases: Roussel v. New Orleans Land Co., 143 La. 1058, 79 So. 860; Clarkston v. Vincent & Co., 32 La. Ann. 613.

It is axiomatic • that plaintiff must recover on the strength of his own title, not on the weakness of that of his adversary.

“The plaintiff in an action of revendication must make out his title, otherwise the possessor, whoever he be, shall be discharged from the demand.” Code of Practice, art. 44; Trellieu Cypress Lumber Co. v. Albert Hansen Lumber Co., 121 La. 707, 46 So. 699.

Where defendant is actually in possession, the plaintiff cannot -be permitted to change his position with the form of action and escape the burden imposed upon him by this article. In order to recover and turn his adversary out of possession, he must establish his title. Bruton v. Braselton, 157 La. 68, 101 So. 873; Atchafalaya Land Co. v. Brownell-Drews Lumber Co., 130 La. 657, 58 So. 500, Ann Cas. 1913C, 1358.

But plaintiff insists that the sheriff’s deed to Virginia T. Johnson makes out a prima facie proof of sale, and cannot be attacked collaterally, citing Lawrence v. Birdsale, 6 La. Ann. 688; Anderson v. Carroll, 23 La. Ann. 175; O’Hara v. Booth, 29 La. Ann. 817; Gillis v. Carter, 29 La. Ann. 698; Shaw v. Marceaux, 12 La. App. 401, 125 So. 460.

The doctrine laid down in these cases fit the facts to which it was applied, but, in a petitory action such as we are considering, plaintiff alleging possession in his opponent takes upon himself the burden of establishing a valid, if not perfect, title in himself as against the admitted possessor.

We find in the record a lucid opinion of the district judge- covering all points raised in this suit, with his reasons for judgment. He sustained defendants’ plea-of prescription and rejected plaintiff’s demand. We have reached the same, conclusions of the case as did the lower court.

The judgment of thé lower court appealed from is affirmed.


author: STEPHENS, J.

text:
    No. 3104
    Second Circuit (Second Division)
    McKENNA v. CITY OF SHREVEPORT ET AL.
    (April 9, 1931. Opinion and Decree.)

      Dickson. & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Aubrey M. Pyburn, of Shreveport, attorney for City of Shreveport, defendant, appellee.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for Flenniken Construction Company, defendant, appellee.
    Clifton Davis, of Shreveport, attorney for C. A. Kuhn, defendant, appellee.
   STEPHENS, J.

The plaintiff has brought this action against the city of Shreveport, Flenniken' Construction Company, Inc., Mrs. Fannie' Goode Maguire, R. P. Moore, P. D. Voisin, and Charles Anthony Kuhn, to recover damages in the sum of $16,439 for the death of her minor son.

The facts as alleged in the petition which are pertinent to the discussion about to follow are: That shortly before the 12th of March, 1926, Gilbert street, in the city of Shreveport, was graded and filled, the actual work being done by Flenniken Construction Company, Inc., under a contract with the city of Shreveport; that the fill was so( constructed as to form a dam at' a point where there was a depression on the west side of Gilbert street,, between that street and Wichita street, and that, the drain under the street graded being insufficient in size to carry off water as it accumulated, a pond of water was formed some eight or ten feet in depth and of considerable width; that the pond was attractive to the children of the neighborhood, who constructed a raft of boards and logs in order to play upon the water; that on March 12, 1926, plaintiff’s son, then ten years of age,. while playing upon the raft, fell into the pond and was drowned.

The plaintiff further alleged that she had no knowledge that her son was playing on the pond, and that she was free from negligence in the premises.; and that all of the defendants, including the four last named above, upon- whose property the pond was formed, knew that children of the neighborhood were attracted to the pond, and that said pond was dangerous; that nothing in the way of draining or filling said property was^/ done in order to correct the dangerous situation, which negligence on the part of defendants rendered them responsible to plaintiff for the death of her minor son.

Exceptions of no cause or right of action were filed on behalf of all defendants. The common ground upon which all of the exceptions were founded is that the petition fails to state a cause of action under the “attractive nuisance” doctrine.

In addition thereto, the city of Shreveport urges, as a reason for sustaining the exception of no cause of action as to it, that a municipality is not responsible for damages, resulting from the exercise of a governmental function; and, further, that there is no specific allegation of negligence charged in the petition to the city of Shreveport or any of its agents.

The Flenniken Construction Company takes the further position, for reason why the exception of no cause of action should be sustained as to it, that • there is no specific act of negligence charged by the petition against the Flenniken Construction Company; it not being alleged that the company, as the contractor, did anything which it should not have done, or failed to do anything which it should have done in the proper performance of the work of filling and grading; and that as a municipality is not responsible for the damages resulting from the exercise of a governmental function, the contractor, acting for the city, when guilty of no collateral negligence in the execution of the work delegated to it, is likewise free from responsibility.

The four last named defendants urge, in addition to their position that the “attractive nuisance” doctrine has no application to the present case, that there is no legally sufficient allegation of negligence charged against them by plaintiff’s petition to render them liable in damages.

The exceptions of no cause of action were sustained by the district court, and plaintiff’s suit was dismissed, from which said judgment she appeals.

This action is squarely founded on the doctrine of attractive dangers to children. It is our opinion, after a careful study of the jurisprudence, that the pond in question, considered in connection with the age of the child, was not an attractive danger to children within the meaning of the doctrine. It would therefore be futile to discuss the causes, be they negligent or intentional, which created the pond, or those which permitted its continued existence until the tragedy' occurred.

That a pond is both attractive and dangerous to children must be conceded. That a pond is particularly attractive to boys is judicially recognized in Sullivan v. Huidekoper, 27 App. D. C. 154, 5 L. R. A. (N. S.) 263, 7 Ann. Cas. 196, as follows:

“Every man who has been brought up with the freedom allowed to American boys knows that you might as well try to dam the Nile with bulrushes as to keep boys away from ponds, pools, and other bodies of water.”

The weight of authority, however, is that the turntable or “attractive nuisance” doctrine does not apply to a pond unless there is some unusual condition or artificial feature other than the mere water and its location, rendering the place peculiarly dangerous to children. The doctrine does not apply to objects attractive and dangerous to children unless the danger be unknown, concealed, or hidden.

The plaintiff has not alleged in the present case that the pond had any unusual features rendering it peculiarly dangerous to children. Therefore, assuming the pond to be an ordinary one, we must further assume that the element of danger that did exist was not latent or unknown, but, on the contrary, was obvious. And as the plaintiff has not alleged that the child was of inferior intellect, we must assume that he possessed the mental faculties usually found in a child of the age of ten. The average child of the age of ten years, under the weight of authority, is chargeable with knowledge of the danger of drowning.

The authorities upon the subject of ponds, etc., as attractive dangers to children are collated and extensively discussed in paragraph 231, page 224, 36 A. L. R., and in. 20 R. C. L., pp. 86 and 96.

The following are fairly illustrative of the numerous decisions on the subject:

20 R. C. L., sec. 76, p. 86:

“In any situation it is the defendant’s superior knowledge of the peril that furnishes the ground for recovery. And so here; if it appears that the injury complained of was produced by a peril of an obvious or patent character a recovery should be denied. The turntable doctrine, it has been said, should be limited in its application to ‘cases where the danger is latent.’ Examples of dangers that are apparent even to young children are found in the elements, of fire and steam.”

20 R. C. L., sec. 85, p. 96:

“Ponds, pools, lakes, streams, and other waters embody perils that are deemed to be obvious, to children of the tenderest years; and as a general proposition no liability attaches to the proprietor by reason of death resulting therefrom to children who have come upon the land to bathe, skate, or play. In a' recent case the court said: ‘That a pond of water is attractive to boys for the purposes of play, swimming, and fishing, no one will deny. But its being an attractive agency is not sufficient to subject the owner to liability.' It must be- an agency such as is likely, or will probably, result in injury to those attracted to it. That many boys, every year lose their lives by drowning is- a matter of common knowledge. But the number of deaths in comparison to the total number of boys that visit\ ponds, lakes, or streams for purposes of play, swimming and fishing is comparatively small. It would be extending the doctrine too far to hold that a pond of water is* an attractive nuisance, and therefore comes within the turntable cases.’ ”

In Sullivan v. Huidekoper (1906) 27 App. D. C. 154, 5 L. R. A. (N. S.) 263, 7 Ann. Cas. 196, it was held that the attractive nuisance doctrine was not applicable to render liable the owner of a parcel of land in a city upon which the construction of a street had caused a pond to form, in which children were accustomed to play, for the drowning of a ten year old boy therein, although no effort had been made by the owner to drain off the water, or to fill in the depression, or to fence in the pond, on the ground that the element of an unknown, concealed, or hidden danger was absent, that the likelihood of accident was small, and the difficulty of guarding against it great. The court said:

“The danger of children who go to swim in ponds and other bodies of water is remote, and accidents are comparatively of rare occurrence. To hold an owner of real estate, upon which there is a body of water, liable for the accidents that may happen to children while trespassing thereon, would be to place upon them an unfair burden. The danger is one that cannot be guarded against without considerable expense or inconvenience. The cases holding that there is no duty upon the part of a real-estate owner, upon whose land is a pond or other body of water, to keep his land -safe for trespassers, even when those trespassers are children, seem to ns to be founded upon and supported by reason and common sense.”

The plaintiff has not alleged a cause of action. It is therefore ordered that the judgment appealed from be affirmed, with costs.


text:
    No. 3115
    Second Circuit (Second Division)
    HILLMAN v. POLICE JURY OF WEBSTER PARISH
    (April 9, 1931. Opinion and Decree.)

      Mclnnis & Campbell, of Minden, attorneys for plaintiff, appellant.
    Robert F. Kennon, of Minden, attorney for defendant, appellee.
   TALIAFERRO, J.

Plaintiff was appointed constable of ward 4 of the parish of Webster (which includes the city of Min-den) in January, 1925, and contends that his term of office would expire about June 1, 1928.

The police jury of the parish fixed the salary, of the office at $75 per quarter, or three months, and paid same to October 1, 1926, thereafter declining to make further payments on that account.

This suit was brought against said police jury to recover judgment for salary alleged to be due for the last quarter of 1926 and first quarter of 1927, amounting to $150.

Defendant’s, answer admits virtually all the matters of fact set up in plaintiff’s petition, but avers, that the office of constable of ward 4 of Webster parish was abolished by Act No. 18 of the Legislature of Louisiana for the year 1926, which created a city court for Minden, and provided for the office of marshal therefor; that plaintiff became functus officio on October 20, 1926, the date the city marshal qualified.

The case was tried in and submitted to the district court on an agreed statement of facts, and judgment was rendered in favor of plaintiff for $16.67, being for salary for the first twenty days of October, 1926, but in other respects rejected his demand. Plaintiff has appealed.

In the statement of facts above mentioned appears the following admission, to-wit:

.“It is admitted that the term of office of plaintiff has. not expired, and will not expire until May 1st, 1928, unless the office of Constable for ward 4 of Webster Parish has been abolished by Act 18 of 1926, purporting to create a City Court for Minden and Ward 4 of Webster Parish.’’

Act No. 18 of 1926 clearly reflects its own purpose. The title commences by saying, “To abolish the offices of Justice of the Peace and Constable in Ward 4 of Webster Parish and to establish in lieu thereof the City Court of Minden,’’ etc. Section 1 of the act follows the title, saying that the word “constable’’ is omitted.

The authority of the Legislature to abolish justice of the peace courts in wards embracing parish seats cannot be seriously questioned. Constitution 1921, art. 7, sec. 51; State v. Gooch, 164 La. 186, 113 So. 812. Section 49 of this, article provides that:

“There shall be one constable for the court of each justice of the peace in the several parishes of the State.’’

Therefore, when the Legislature abolished the entire justice of the peace court of ward 4 of Webster parish, by the adoption of Act No. 18 of 1926, and created in lieu thereof the city court of Minden, the office of constable thereof was carried with it. Any other construction of said act, in the light of the Constitution, would leave plaintiff in office with no court to serve or take -orders from, for certainly the marshal of Minden, under Act No. 18 of 1926, is the chief executive officer of the city court of Minden (section 8).

In view of the provisions of the Constitution above mentioned, the tenure of every constable and justice of the peace of wards wherein parish seats are located may be discontinued by legislative enactment, and the Supreme Court in State v. Gooch, 164 La. p. 187, 113 So. 812, held that such legislation is a competent exercise of power vested by the Constitution, even when adopted and intended to have. effect before the terms of such .officers have expired.

It is urged that plaintiff is estopped from denying the validity of Act No. 18 of 1926 because he submitted himself as a candidate for the office of city marshal of Minden at an election held under that law, prior to the filing of this suit.

The decision we have reached on the other defense to plaintiff’s suit obviates a decision on the plea of estoppel.

We find no error in the judgment appealed from, and it is accordingly affirmed; cost of appeal to be paid by appellant.


text:
    No. 3151
    Second Circuit
    GALT v. HERNDON
    (April 9, 1931. Opinion and Decree.)

      Hardy & Hardy, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, Cook & Cook, of Shreveport, attorneys for defendant, appellant.
   STEPHENS, J.

This: is a suit by J. E. Galt against J. R. Herndon upon two promissory notes, each for the sum of $250, dated August 28, 1924, and due respectively November .10 and December 10, 1924. Defendant answered admitting the execution of the notes and alleging the failure of the consideration for which the notes were given and praying for a judgment for damages in the sum of $4,600.

It is conceded that the defense is, in effect, a ■ redhibitory action coupled with a demand for damages. The redhibitory action is founded upon the allegations that certain cattle purchased from the plaintiff by the defendant were infected with a disease known as “conjunctivitis” or “pink eye” at the time of the sale, and that such dangerous and infectious disease rendered the animals purchased wholly unfit for the use for which they were intended. The damages which the defendant sues for are alleged to have resulted from the infection of other cattle owned by him at the time of the sale, due to the mingling of the cattle purchased with them.

The trial of the’ case resulted in a judgment in favor of the plaintiff and against the defendant as prayed for, and further rejecting the demands of the defendant in reconvention, from which said judgment tha defendant appeals.

On the trial of the case, immediately after the introduction of the notes sued on, the plaintiff moved to strike out a portion of paragraph 2 of defendant’s answer. The-motion to strike out'was overruled.

Counsel for defendant moved to amend his answer instanter. The counsel for the plaintiff objected to the amendment, and the court allowed the amendment subject to the objection.

The counsel for the plaintiff seeks to have this, court review the ruling of the trial court in the two instances mentioned. The plaintiff having not appealed, nor answered the appeal of the defendant, is not in position to present these questions for review.

From a careful study of the record, we find that the pertinent facts developed on the trial of the case were: On August 28, 1924, the defendant purchased from the plaintiff some fourteen or fifteen head of dairy cattle. The defendant agreed to execute the notes herein sued on to evidence the purchase price. At the time of the sale, one of the cattle, and perhaps others, appeared to have an irritated or slightly inflamed or watery condition of the eyes, which wa.s observed and commented upon by both buyer and seller. A day or two later, and after the delivery of the cattle to the defendant, the inflamed and watery condition of the eyes of the cattle was attributed by a veterinarian to “infectious conjunctivitis” or what is commonly known as “pink eye.” The diseased cattle infected the dairy herd of the defendant and caused him considerable inconvenience and loss. The disease existed in the herd purchased at the'time of the sale, but neither the plaintiff nor the defendant had knowledge of that fact. The notes sued on were executed and delivered to the plaintiff on September 8, 1924, at which’ time both the plaintiff and defendant had learned of the .existence of the disease in the herd sold. On December 8, 1924, which was shortly prior to the time of the institution of this suit, the said cattle, together with others, were sold by the defendant.

It being conceded by both plaintiff and defendant that the answer of the defendant sets up a redhibitory action, coupled with a suit for damages, we will so treat it.

In order to maintain a redhibitory action the purchaser must offer< to restore the seller to the situation .which existed at the time of the sale. The defendant in this case did not tender the return of the cattle to the plaintiff, but on the contrary, before the institution of the suit, he sold the cattle to a third person thus making it impossible to restore the status quo. Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590, 592; Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459; George v. Shreveport Cotton Oil Co., 114 La. 503, 38 So. 432.

— Within a few days after the sale the defendant discovered the defect complained of. If he had intended to avail himself of the relief provided by the redhibitory action, he should have tendered the cattle to the seller and repudiated the sale as a nullity. What he actually did, more than ten days after the sale, with full knowledge of the existence of the disease in the herd, was to ratify the sale by giving the plaintiff the two notes herein sued on as evidence of the purchase price. The legal effect of which, we think, with reference to the rules governing redhibitory actions, was to place the defendant in the same situation as though the defect or vice was apparent at the time of the sale.

“Apparent defects, that is, such as the buyer might have discovered by simplg inspection, are not among the number of redhibitory vices.” Civ. Code, art. 2521.

Included in every redhibitory action there is an action for the reduction of the price, but we don’t think the defendant is entitled to relief because of this principle of law.

The action quanti minoris, or for the reduction of the price, is. subject to the same rules as the redhibitory action. Civ. Code, art. 2544. As the defendant may\ not recover in a redhibitory action because he ratified the sale after the defect or vice was known to him, he likewise may not recover in an action quanti minoris.

But even though recovery might be had in this case for a reduction of the price without regard to the question whether the defect or vice was apparent, the amount of the reduction to which the defendant would be entitled has not been shown with a reasonable certainty.

In Ehrlich v. Roby Motors Co., supra, the Supreme Court held as follows:

“In order to entitle one to a diminution of the price, he must not only show that’ the defect complained of existed at the time of the sale, but he must also show with reasonable certainty facts disclosing the amount of the reduction to which he is entitled. Lowe and Pattison v. Nelson, Bradley & Co., 7 La. Ann. 646; Bonzano v. Auze, 10 La. Ann. 188.”

Some effort was made to show that the cattle purchased which were ■ suffering .with conjunctivitis were valueless, but it did not succeed, in view of the fact that it was shown that in most • instances, if the disease was treated properly in its early stages it could be cured within a week; and that it was. only the exceptional case when blindness occurred; and that death rarely resulted in any case. The cattle undoubtedly had some value at the time of the sale, but we have no meáns of determining or accurately estimating that value from the record as made up.

The action for the damages herein sought to be recovered is founded on article 2545 of the Civil Code, which reads as follows:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”

We' have found, as a fact, that the plaintiff had no knowledge at the time of the sale of the vice or defect in the thing sold. This is conceded by the counsel for the defendant in his brief as follows:

“In the light of the testimony, the Court will have no difficulty in finding that it is. clearly established that nobody knew that the cattle were infected with pink eye.”

The defendant is therefore without right to recover damages in this case.

For the reasons assigned, we think the judgment appealed from is correct and should be affirmed with costs, and it is so ordered.


author: DREW, J.

text:
    No. 3230
    Second Circuit
    TENSAS MOTOR CO. v. BLACKMAN
    (April 9, 1931. Opinion and Decree.)
    Dickson & Denny, of Shreveport, attorneys for plaintiff-appellee-appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant-appellee-appellant.
   DREW, J.

Plaintiff alleges that defendant is indebted unto it in the sum of $191.65 on open account, and' in the further sum of $345.08, represented by one note, that the open account represents goods and merchandise sold to J. B. Lee, a resident of Tallulah, La., and the note was given by J. B. Lee for goods, wares and merchandise sold by plaintiff to Lee, and that the • defendant agreed in writing to pay the note and open account of Lee. It alleged amicable demand, and prays for judgment for the full sum of the note, with interest and attorney’s fees, and for the full amount of the open account.

Defendant admits that he agreed in writing to pay the note, but that his agreement was based on the assumption that the note was given for supplies furnished by plaintiff to Lee to be used in the making of a crop on defendant’s plantation; that he has since learned that the goods for which the note was given were purchased in the year 1925, and before he (the defendant) took charge of the plantation in January, 1926; that, on account of this error of fact, he declines to be bound by said written agreement; that he was in no way responsible for the said error of fact; and that same was brought about by representations of plaintiff. He denies that he had ever agreed, to pay the open account of J. B. Lee that was made after March 17, 1926; and alleges that he had paid the open account owed by J. B. Lee to plaintiff up to and including that date.

There was judgment in the lower court for the full amount of the open account and for $165.41 on the note. Prom this judgment both plaintiff and defendant have appealed.

On March 17, 1926, J. B. Lee’s account with plaintiff was $624.75, consisting of one note for $345.08, and open, account for $279.67, and on that date defendant addressed the following letter to plaintiff:

“March 17, 1926.
“Tensas Motor Co., St. Joseph, La.
“Gentlemen: We are enclosing you herewith our check for $279.67 payment on account J. B. Lee, Hapaca Plantation, the balance I believe you have in thd shape of a note signed by Mr. Lee and which I also agree to see paid, but on account of Mr. Lee’s having made very many more and larger bills than either he or I had expected.
“We are going to ask your indulgence on this balance for a little while.
“Yours, very truly, R. H. Blackman.”

This letter is clearly a promise by defendant .to pay the note made by J. B. Lee and held by plaintiff, and, unless the plea of error of fact made by defendant can be sustained, he is liable on the note.

The itemized list of merchandise for which the note was given is filed in evidence, and shows that a great portion of it was purchased prior to January 1, 1926, and before defendant took charge of the plantation. It is contended by plaintiff and Lee that all of this, merchandise was used in preparing the land for the 1926 crop, moving tenants, etc. However, the lower court deducted certain items, consisting principally of gasoline, holding that it did not go into the preparation of the land for the crop of 1926. It is claimed by plaintiff that the gasoline was used to operate the tractors in breaking the land. The evidence is very conflicting on this point, and it is shown that defendant did not take charge of the plantation until about the 1st of the year, 1926, and did not give any orders for the land to be broken, if any was broken, before January 1, 1926. The deduction for the gasoline was properly made.

One other item of $1.50, for a universal joint, is made, and we cannot say it is incorrect. Defendant, when he agreed to pay the note, thought that it covered only supplies used in making the crop of 1926, and was therefore in error as to the facts, and is entitled to the deduction granted by the lower court. The other items covered by| the note were found by the lower court to have been used on the plantation in making the 1926 crop. It is purely a question of fact, and we are unable to say that the lower court was in error in so holding. Therefore that part of the judgment on the note will have to be affirmed.

The open account sued on is for goods purchased between the dates of April 16, 1926, and May 4, 1926, all of which defendant, in letter of February 18, 1927, agreed to pay. The letter reads as follows:

“February 18, 1927.
“Tensas Motor Co., St. Joseph, La.
“Gentlemen: After thoroughly going over the matter with my attorney here, and reading him the entire correspondence, I propose to pay for the merchandise purchased by J. B. Lee after January, 1926, when I purchased the place. The note for $345.00. I disclaim any responsibility whatever for in as much as it was for merchandise purchased while G. T. Shawl owned the property and before I ever owned it.
“You may advise if this is satisfactory.
“Yours very truly, R. H. Blackman.”

This is clearly a promise to pay the open account of J. B. Lee, covering goods purchased after January 1, 1926, and is binding on defendant. Therefore that part of the judgment of the lower court on the open account is. correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court appealed from be affirmed, with all costs, and that Mrs. R. H. Blackman, administratrix of the succession of R. H. Black-man, be substituted as party defendant.

MoGREGOR, J., recused.


text:
    No. 3220
    Second Circuit
    GRAPPE v. TEX. & PAC. RY. CO.
    (April 9, 1931. Opinion and Decree.)
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.

      Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for damages alleged to have been caused him by a collision between an automobile he was driving and a train of. the defendant company. He alleges that while driving an automobile in the city of Natchitoches, La., and while crossing a switch track of defendant company, an engine belonging to said defendant company “backing, with a string of boxcars preceding said engine, ran into your petitioner’s automobile with said boxcars,” throwing said automobile several feet distant and almost completely wrecking said automobile and causing great shock to plaintiff, which has caused him to become very nervous. He alleges that there was no “stop” sign at the said crossing; that there was no flagman on said crossing; and that no signals of any kind were given of the approach of the train. He alleges damage to the automobile to the amount of $227.50, also $50 for being deprived of the use of the automobile for seven days, and $250 for his shock and resulting nervous condition, making a ■ total of $527.50, for which he prays. He denies negligence on his own part, and alleges that the accident was caused solely by the carelessness and gross negligence of the defendant company.

Defendant admits that no stop sign was at this crossing and that no flagman was on the crossing at the time of the accident. It admits that the accident happened at the place set out in plaintiff’s petition, and alleges that the damage to plaintiff was only slight, and pleads contributory negligence on the part of plaintiff as a bar to his- right to recover.

There was judgment in the lower court rejecting plaintiff’s demands, from which judgment he has appealed to this court. •

Defendant’s engine with five or six boxcars ahead of it was backing into a side track for the purpose of “spotting” a .car at a wholesale grocery house in the city of Natchitoches, La. The train was moving at a rate of from five to ten miles per hour. The brakeman was on top of the front boxcar, and on approaching the crossing where the accident occurred, the brakeman saw the plaintiff ‘ and whistled at him. The bell of t'he engine was not ringing, neither was the whistle blowing. There was no flagman stationed at the crossing and there was no stop sign. The defendant was clearly negligent. However, the plaintiff was likewise negligent. He was driving his car at a rate of from eight to ten miles per hour, his. curtains were up, and he testified that he did not look to the right or the left on approaching the track; that he did not stop or listen for a train; that he was looking at a lady who was crossing the track from the opposite direction; that if he had looked, he could have seen the train; and that he was familiar with the crossing, having used it often.

The street at this point is forty to fifty feet wide, and there was nothing to obstruct his view for at least 100' feet down the track. He did not look in the direction of the train, even after getting on the track, as is shown by his testimony. He testified that he did not know the train had struck his car until after it stopped, but thought the back end of the lady’s car had run into him. We think his negligence is such as to bar recovery. Gibbons v. N. O. Terminal Co. et al., 1 La. App. 371; Morin v. I. C. Railroad Co., 1 La. App. 727; Young v. Western Ry. Co., 153 La. 129, 95 So. 511; Pylant v. C. R. I. & P. Ry. Co., 8 La. App. 350; Branch v. Mo. Pac. Railroad Co., 7 La. App. 257; Brown v. T. & P. Ry. Co., 42 La. Ann. 350, 7 So. 682, 21 Am. St. Rep. 374; Concordia Baking Co. v. L. & A. R. Co., 7 La. App. 301.

The last clear chance doctrine does not apply in this. case. Callery v. Morgan’s L. & T. R. & S. S. Co., 139 La. 763, 72 So. 222.

The judgment of the lower court rejecting plaintiff’s demands is correct, and it is therefore ordered, adjudged, and decreed that it bé affirmed, with all costs.


author: WEBB, J.

text:
    No. 3242
    Second Circuit
    BROOKFIELD v. NEELY
    (April 9, 1931. Opinion and Decree.)
    C. B. Prothro, of Shreveport, attorney for plaintiff, appellee.
    Lyons & Prentiss, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Defendant, E. F. Neely, a judgment creditor of Joshua S. Brookfield, issued execution on his judgment under which the sheriff seized two mules. Pending the sale of the property seized, James S. Brookfield, son of Joshua S. Brookfield, made an affidavit of ownership 'which was filed with the sheriff who required Neely to give him an indemnity bond which was transferred by the sheriff to ‘James S. Brookfield (see sections 3579, 3580, Rev. St.).

In the present action plaintiff sues defendant on the bond to recover the value of the mules, which is alleged to have been $225, and for damages resulting from the loss of the use of the mules, alleged to have been $225, with legal interest on the amounts claimed from judicial demand; and defendant appeals from a judgment rendered against him in favor of plaintiff in the sum of $242.50, with interest as prayed for.

There was not any allegation in plaintiff’s petition of the source of his title, but evidence was introduced showing that the mules and a set of harness w.ere purchased from the Cudahy Packing Company, at the price of $225; that Joshua S. Brookfield conducted the negotiations, paying. $100 cash and giving two notes for $60 and $65 respectively, and that he signed the notes and the bill of sale, “James S. Brookfield”; and the latter claims that Joshua S. Brookfield was acting as his agent and that the title or ownership of the mules vested in him as the undisclosed principal. In support of the position plaintiff contends that, where one purchases movable property it may be shown that the purchase was made as the agent of another, and that as between such persons, the ownership or title to the property vested in the undisclosed principal; but, conceding the principle asserted, we do not think it is applicable in the present case.

The evidence conclusively shows that the seller did not know James S. Brookfield in the transaction, and that the seller thought that Joshua S. Brookfield, in signing the bill of sale and notes “James S. Brookfield,” was signing his own name. Whatever may have been the idea of Joshua S. Brookfield, or the understanding between him and his son, who is conceded ■to have been a minor at the time of the sale, it is certain that Joshua S. Brook-field was alone obligated for the price of the property and that James S. Brookfield was not bound. Willet v. Tessier, 15 La. 13; article 350 Civil Code; Urquhart v. Scott, 12 La. Ann. 674; Payne v. Scott, 14 La. Ann. 760.

We are of the opinion therefore that the title or ownership of the property vested in Joshua S. Brookfield and that the evidence showing that James S. Brookfield furnished his father with $75, which was used by the latter in making the cash payment, and that James S. Brookfield paid one of the notes, while supporting the contention that Joshua S. Brookfield was attempting to act as the agent of James S. Brookfield and to have the title to the property vested in James S. Brookfield, the evidence does not even tend to show that the son was vested with the legal right to proceed against his father for an accounting, much less to show that the title to the property purchased vested in James S. Brookfield.

The title to the property having vested in Joshua S. Brookfield, and there being no evidence showing that he had transferred the property ’ to his son, after the latter became of age, the property seized belonged to Joshua S. Brookfield and James S. Brookfield could not recover of defendant the value of the property seized and sold, or for the< loss of the use of the property.

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