author: Fenner, J. B. R. Forman, Esq.,

text:
    No. 10,177.
    Butchers’ Union Slaughterhouse and Live Stock Landing Company vs. Crescent City Live Stock Landing and Slaughterhouse Company. On Rule of Plaintiff Against B. R. Forman.
    1. Enture, origin and .scope of tho summary remedy by rule which courts may exercise against attorneys at law, as officers of court, considered.
    2. Tho right of an attorney to retain, out of moneys collected for a client, the lees due lor professional services, is governed, as between tho attorney and client, by tho law of mandate, rather than according to tho rules governing privileges and compensation.
    3. What is known in the English Equity System as the solicitor’s retaining lien, attaches to all papers, money or chatties of tho client received in tho course of professional employment, and authorizes their retention for payment of all fees and charges due for professional services.
    3. Arts. 3022 and 3023 Bov. O. C. considered and held to give the right to the mandatory to retain out of the property of the principal in liis hands, the costs, expenses and commissions or fees due under the mandate, although the latter he not liquidated.
    «L. The services in quostion here having all been rendered under a single mandate and in matters closely connected with each other, the right to retain to amount of the value of all, is clear.
    APPEAL from file Civil District Court for the Parish of Orleans. lliglvtor, J.

      Henry L. Laxaras for Plaintiff on Rule and Appellee.

      R. Howard MeGaleb for Defendant on Rule and Appellant.

      Alfred, Roman on the same side.
   The opinion of the Court was delivered by

Fenner, J. B. R. Forman, Esq.,

was employed by plaintiff, as its general attorney, under tlu> following written contract:

“New Orleans, March 26,1881.
“ It is hereby agreed between B. R. Forman, attorney-at-law, and the Butchers’ Union Slaughterhouse and Live Stock Landing Company, that said Forman shall under! ake the management of all cases now pending-in courtdo which the said Company is a party and any case that may arise having for its object to establish the right of said company to keep slaughterhouses and stock landings at such place or places as the City Council may designate, with the approval of the Board of Health, or to prevent them from doing their business.
“ And the said Forman shall exert himself with the members of the -City' Council and Board of Health to induce them to designate and approve such limits as may include the location of the said Company’s ground at Caflin’s Lane.
“ In consideration whereof the Company agree to pay B. R. Forman one hundred dollars cash, one hundred dollars from 1st to 5th of May, I88J, and one hundred dollars from 1st to 5th of June, 1881. And in case of a successful termination of said '.-litigation in favor of said Company, a liberal fee besides the fee certain above mentioned. It is understood that said cases shall be attended to in, any and all courts in Louisisana, but said attorney shall not be obliged to go to Washington City without an additional cash fee and expenses.
“ Any suits brought to collect stock subscriptions or other suits not involving the rights of the Butchers’ Company to do business, shall be paid for by usual and customary fees.
(Signed) B. R. Forman.
Aman Troescher, President.”

The prime object of the litigation referred to in the contract was to overthrow the monopoly and exclusive privilege claimed by the Crescent City Live Stock Landing and Slaughterhouse Company, and to maintain and establish the right of the Butchers’ Union Company, with the sanction of the City Council of New Orleans and of the Board of Health, to establish and conduct the business of landing and slaughtering- live stock.

There were numerous cases in which Mr. Forman rendered services under the contract.

The litigation finally resulted in the complete triumph of the Butchers’ Union Company. Having obtained the concurrent approval of the City Council and of the Board of Health to its selected location, it was met by an injunction from tbe United States Circuit Court, sued out by tbe Crescent City Company, restraining it from conducting its business, wbicb injunction was perpetuated by a final decree in that court; but, on appeal to tbe Supreme Court of the United States, tbe decree was reversed, tbe pretensions of tbe Crescent City Company to a monoimly and exclusive privilege were denied, and tbe rights of tbe Butchers’ Union Company to prosecute its business were fully recognized. Butchers’ vs. Crescent City, 111 U. S. 746.

Thereupon tbe Butchers’ Company brought its action in damages against the' Crescent City Company on account of tbe wrongful issuance of tbe injunction above referred to. This action resulted in a judgment in this Court for $21,000 damages; but, on appeal to the Supreme Court of tbe United States, tbe decree was only partially affirmed and the damages allowed were largely reduced. Butchers’ vs. Crescent City, 37 Ann. 874; id., 120 U. S. 746.

Under this judgment, Mr. Forman collected for bis client, $6319 55. Tbe Butchers’ Company demanded that be should pay over to it tbe amount collected, after deducting a reasonable fee for bis services in the particular suit in wbicb the money was collected. Mr. Forman declined, claiming tbe right to apply tbe sum in payment of tbe fees due him for all services rendred under bis contract, wbicb exceeded tbe sum collected.

Thereupon tbe Butchers’ Company resorted to this summary remedy by rule on Mr. Forman, requiring him to show cause on a day fixed why be shoidd not pay over tbe amount collected less his fees and charges in this particular suit.

Mr. Forman appeared and showed cause in an answer, wherein bo sot forth bis employment by, and contract with, defendant; the various services rendered thereunder and the fees due therefor; alleged an express agreement with plaintiff in rule that be should be paid all bis fees, disbursements and expenses out of tbe first moneys collected by him and especially out of tbe damages recovered in this particular case; and finally claimed that under said express agreement, as well as under his legal rights 'without such agreement, be has tbe right to retain and apply tbe money collected by him to tbe payment of bis advances, costs, fees and charges as above set forth.” He, therefore, prayed that the plaintiff’s demand and rule bo dismissed and rejected.

Tbe issue being whether tbe plaintiff in rule has vindicated bis right to the remedy invoked, or whether tbe defendant has shown good cause why such remedy should uot be applied, it behooves us, at tbe outset, to malee some inquiry as to the origin, nature and scope of the remedy in question.

There is, in this State, no statutory provision covering the precise relief here, sought. Plaintiff’s counsel says, in his brief, “ the rule was taken under the jiro'visions of Section 119 of the Revised Statutes.” That section reads: If any attorney-at-law shall recover any sum of money for his client and shall neglect or refuse to pay it over when demanded, without any legal ground-for such neglect or refusal, he. shall, on conviction, be immediately erased from the list of attorneys, his license cancelled, and be forever incapable of appearing' as such before any court of this State, and he shall not be entitled to the benefit of the insolvent laws for any sum so collected.” -

This statute, which is derived from an Act of 1826, obviously contemplates a criminal or quasi-criminal withholding of moneys collected and not one based on the exercise of an honestly-believed legal right.

If, however, wo look to the general authority of courts over attorneys practicing before them and who are considered as officers of the court, as the source of such jurisdiction, we find the authorities holding that the “summary power is the exercise of the jurisdiction over an officer of the court as an officer, rather than a regulation of his relative duties as an attorney of a client;” that they are “liable to the summary jurisdiction of the tribunals in which they practice, for any want of good faith and honesty in their relations with their clients;” and that “only questions of good faith and integrity will generally be tried on motion.” Weeks on Attorneys, § 77, and authorities there quoted.

The proceeding looks not to the settlement of disputed questions of debit and credit and the obtension of an ordinary judgment for money. It arraigns the attorney, as an officer of the court, for a dereliction of duty, and invokes a summary order of the court commanding him to perform such duty, which he is bound to obey, and, on failure, would be subject to compulsion by such legal pains and penalties as are within the judicial power.

So far is it from the ordinary judicial pursuit that the two are inconsistent with each other. Proceeding by action for the money collected is considered as a waiver of the right to the summary relief. Weeks, § 77, and authorities cited.

If such an action has been commenced, the client must first discontinue before proceeding summarily. Id. § 94, p. 177.

And if the client have proceeded to judgment in an ordinary action for money collected, it operates a merger of the relation of attorney and client into that of debtor and creditor and is a bar to the summary proceeding for enforcement of payment. Chevalon vs. Schmidt, 11 Rob. 91; Cottrell vs. Finlay, see 4 How. Pr. 242.

The Supreme Court of the United States, in discussing this remedy, said: The application against the attorney in such cases is not equivalent to an action of debt or assumpsit, but is a goinsi-criminal proceeding, in which the question is not merely whether he has received the money, but whether lie has acted inrproperly or dishonestly in not paying it over. If no dishonesty appears, the party will bo left to his action, etc.” In re Paschal, 10 Wall. 493.

Under these views of the remedy invoiced, it might well be doubted whether on the showing made by the answer and record presenting such serious claims of legal right on the part of defendant, it would not be proper, even without deciding the case on the merits, to discharge the rule and to remit the parties to a litigation of their disputed rights by an ordinary action. But as such relief is not claimed by defendant on exception or otherwise, we will, on the authority of Furner vs. Walsh, 12 Rob. 283, proceed to adjudicate the issues joined.

I.

So far as the question of the special agreement set up by defendant is concerned, the evidence on the point is voluminous and conflicting. Referring to this conflict, the learned judge a quo says: Mr. Forman testifies positively to a special agreement between himself and ■ the plaintiff corporation, through its officers, that he should be allowed to retain in his hands, and to be paid by preference out of, the proceeds in the damage suit. His testimony is partially sustained by that of Mr. Wolfson, and fully corroborated by that of a youthful employee of the office. On the other hand, all the officers of the plaintiff corporation, testify directly to the contrary and deny the existence of any such agreement. Such a flagrant discrepancy can only be explained on the ground of a misunderstanding between the parties, which it was Mr. Forman’s duty as being most interested and more learned in the law, to have obviated by providing that certainty which results from a written instrument.” He, therefore, held that the allegation of special agreement was not proved. We have studied the evidence on this point with care and do not feel authorized to disturb the ruling thus made by our learned brother.

II.

Defendant, however, claims that, independently of the express agreement alleged, he has, under the showing made and the facts of the case, the legal right to retain and apply the moneys collected to the payment of the fees and charges due him.

It is admitted that the defendant has the right to retain out of the fund his fee in the particular suit in -which the money was collected. The question is whether he has the right to retain charges incurred and fees due in other cases. It is claimed, and the judge a quo seems to have considered, that the existence of this right depends exclusively on the questions whether the defendant had a privilege on this judgment for fees due in other cases, or whether he has a right to compensate such lees against the fund.

We do not find it necessary to decide either of these questions. The law of privileges finds no place in this controversy, which is one exclusively between the parties. “Privilege,” says the Code, “is a right which the nature of a debt gives to a creditor and which entitles him to bo preferred before other creditors.” No other creditors are before us setting up any rights to be adjudicated herein on this fund; and if the defendant is entitled to hold it against the plaintiff, any rights of the latter’s creditors may be left to be asserted by them without predjudice by any decision in this cause to which they are not parties.

Nor do we think that the defendant’s right are to be governed by the rules of compensation.

We consider that the questions involved find their solution under the law of Mandate and Attorney and Client.

Some conflict exists amongst civilians as to whether an attorney-at-law is a mandatary ora locator operar urn, but this Court has recently held that he is a, mandatary. Gurley vs. City of N. O., 41 Ann. —.

This case is a peculiar one. All of defendant’s services were rendered under a single contract, which we have copied in the beginning of this opinion.

In a suit brought by the predecessor of defendant as attorney of this very Company, for fees due him, an exception was interposed to his petition on the ground that he claimed a certain feo in lump without specifying the amount due-in each particular case. The contract proved was similar to the present one; and we said: “ Considering that he was employed as counsel of the Company under a general retainer; that the object to bo attained by the various services was the single one of maintaining defendant’s right to conduct its business in the parish of Orleans; that this was the object and purpose of plaintiff’s employment and the services wore all subsidiary thereto, we think the plaintiff was justified in treating the whole as substantially one service and claiming a lump consideration therefor.”

We cannot take a different view of the services rendered by defendant under his contract. They were all conducive to, or growing out of, the principal object of the employment. The suit in which the fund in controversy was recoverd, was an action for damages for the wrongful issuance of an injunction in the. very suit in which the Supreme Court of the United States finally determined the main question of ifiaintiff’s right (111 U. S. 746); and the attorney’s -fees therein were an element of the damages claimed.

The defendant had no other source to which to look for payment for Ids valuable services except to this fund recovered, or to the profits which the Butchers’ Union Company might make in the prosecution of its business after its right was established. But it appears that after the decision in its favor, the Crescent City Company made so considerable a reduction in its charges to the butchers, that the Butchers’ Union abandoned its competing project. The individual members of the Union thus reaped a substantial advantage from the success of the litigation, and the defendant, by whose exertions this success was achieved, is left without any hope of payment except out of this fund.

The equity of his case is, therefore, very strong; and we think the law is equally clear in his favor. He is plainly entitled to what is known under the English system of common law and equity, as the solicitor’s retaining lien.

We quote from Ewell’s Evans on Agency as follows: A solicitor has two kinds of lien: (1.) A retaining lien, which is a right to retain possession of another’s property until a debt to the solicitor has been satisfied; (2.) a charging lien, which is a right to charge property in the possession of another. ■ Liens are also divided into general and particular. A j>articular lien is when the claim arises in respect of the very property claimed. A general lien exists where the debt results from the general balance of account. The retaining lien is both particular and general; whilst the charging Ren is only particular. The retaining Ren of a solicitor' attaches to all deeds, papers, money and chatties in his possession, belonging to his cRent and which have come into his hands in the course of and with reference to his employment, unless there has been some agreement to the contrary, or unless the right is inconsistent with the soRcitor’s employment.” Ewell’s Evans on Agency 497.

The United States Supreme Court says: “In England and in several of the States, it is held that an attorney’s or solicitor’s lien on jjapers or money of liis client in possession extends to the whole balance of Ins account for professional services.” While not distinctly adopting the rule as applicable to services entirely disconnected with each other, the court fully recognized and enforced its applicability to all services rendered under the same retainer, though in different proceedings. In re Paschal, 10 Wall. 483.

Under the English rule, as stated by Mr. Evans, and by the United States Supreme Court and followed in some States, the right of defendant to retain the general balance of his professional account out of this money sufficiently appears, independently of the solidarity of his employment and services.

It will be seen that the charging lien corresponds to what would be called in our law a privilege and has been partially regulated by statute in this State. Rev. S. § 128. The retaining Men, however, is not statutory in its origin, nor has it been made the subject of statutory provision in this State. It originates in the same inherent power of courts over the relations between attorneys and litigants appearing before them, which is invoked by plaintiff in this very rule. The same power which authorizes courts summarily to enforce the performance by attorneys of their duties towards their clients, intervenes to protect the just rights of attorneys in settlement between them and clients.

We see no reason why such protection should not be extended to their officers by courts of Louisiana as well as elsewhere — particularly in a case where the client invokes the exercise of the summary power. It has certainly been the custom of attorneys to exercise such right of retention, and it seems to have been recognized by this Court in two cases where such retention did not rest on the strict principles of compensation. Mengel vs. Tessier, 5 Ann. 175; Rutland vs. Cobb, 32 Ann. 857.

But considering the solidarity of defendant’s contract and services, under the view heretofore expressed, we think that the right, admitted by plaintiff in rule, of defendant to retain his fee in the paiti.cu.hu’ case, extends to and embraces all his fees in the subject-matter of the mandate, and is distinctly supported, not only by the authority of the United States Supreme Court, but by the express text of our own law on that subject. Article 3022 Rev. C. C says: “The principal ought to reimburse the expenses and charges which the -agent has incurred in the execution of the mandate and pay his commission where one has been stipulated,” and the Art. 3023, immediately following, declares: “The mandatary has the right to retain out of the property of the principal in his hands, a sufficient amount to satisfy his expenses and costs. He may even refain, by way of offset, what the principal owes him, provided tiie debt be liquidated.”

Taking the two articles together, we have no doubt, at least where the services charged for, have all been rendered under a single mandate, that tlie terms “expenses and costs ” cover the stipulated commissions, salaries or fees, which the first article liad just placed on same basis with expenses and charges.” These need not be liquidated but enter into tbe accounting which is due between the principiil and agent.

The debts referred to in the final clause of Art. 3023, and which must he liquidated in order to be offset, are obviously debts other than such commissions or fees.

We find no place, in a proceeding like the present, under the views heretofore expressed, for the reeonventional demand of defendant, under which he claims a judgment over against plaintiff for an alleged excess of the fees due him over the amount of the fund. We shall not, therefore, undertake the evaluation of those services, further thau to say that they are undoubtedly sufficient to offset this fund.

We have designedly ignored those features of this controversy which hinge upon alleged hypothecation of the fund in favor of third persons. Their rights may be remitted to be adjudicated when asserted by themselves.

Our judgment herein will be without prejudice to any rights of such third persons on the fund in controversy. We simply deny the relief sought by plaintiff in rule, to which denial the effect of our judgment will be confined.

It is, therefore, ordered and decreed"that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that the rule taken herein be denied and dismissed at plaintiff's cost in both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,212.
    T. A. Mitchell vs. The New Orleans and Northeastern Railroad Company.
    1. A demand for compensation, for land which has been taken by a railway corporation for a road-bed, and upon which their railroad has been constructed and put in operation, otherwise than by legal expropriation proceedings, is not proscribed by two years, undor Sections 680 and 1497 of the Revised Statutes. R. C.C., 2630, and Section 5 of Act 125 of 1880, page 169.
    They apply only in cases of expropriation.
    2. Such a demand is not one lor damages ex delicto, for a tort, or wrongful entry upon the la/nds of the clcmnant ¡ it is in the nature of a personal action for the value of land the fee to which has passed to tho corporation by a quasi alienation.
    3. In case such a corporation shall make an unlawful entry upon the land of another person, for the purpose of constructing thereon a road-bed for its track, it is the duty of such person, at once and peremptorily, to forbid such unlawful entry, and to undertake tho necessary legal means to prevent it.

      If, on the contrary, ho fail to invoke the arm of the law and at a time when it would have been of avail to him, and acquiesces in such entry and permit the corporation to construct the road thereon, without resorting to expropriation proceedings, lie cannot after-wards require its demolition, or prevent its nso.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. Howard McGaleb for Plaintiff and Appellee:
    3.Prescription cannot he set up against a continuous damage. 2 Addison on Torts, 1103 j Wood’s Law of Nuisance. Sec. 772 ; 35 Ann. 952; 97 N. S. 608.
    2. Maintenance of an embankment which floods the land of an adjacent proprietor is a nuiscmce. Wood’s Law of Nuisance, See. 358.
    l'hc proprietor below is not at liberty to raise any dam to prevent the running of water. B. C. C. Arts. 661 and 664. Such servitude can only be acquired by title, or by a possession of ton years. B. C. C. Art. 765.
    3. A claim for the value of land -appropriated and used by a railroad company for its right of way, is not prescribed by two years, under Art. 2630, B. C. C., because it is not a demand for the land itself, or for damages caused by its expropriation. 35 Ann. 924; 39 Ann. 431,1063; Constitution 1879, Arts. 155 and 156.
    4. In an action for injury to real property caused by flooding, the measure of damages is the difference between the market value of the land immediately before and immediately after the injury is complete. Shearman & Bedfield, Sec. 602; 4 Watts & Serg. 362; 24 Barb. 273 ; 96 IX. S. 407.
    5. A railroad company must so build its road-bed as not to needlessly injure the land over which it passes. It cannot obstruct drainage with impunity, and is responsible in damages to the adjacent proprietor for flooding his land. 35 Ann. 947, 1045; 37 Ann. 728; 38 Ann. 104.
    6. A court has the right to order obstructions to the natural drainage of land removed. 7 Ann. 44. A party cannot be considered as acquiescing in the construction and maintenance of an embankment on his land by a railroad company where he (1) objected in advance ; (2) refused to give title for right of way, and (3) where defendant company, ignoring the provisions of its own charter, entered, without acquiring title by sale, by donation, by expropriation proceedings, or by prescription. Kerr’s Injunctions in Equity, *19.
    7. Bayous are water courses (Wood’s Law of Nuisance, Sec. 338); and by its charter defendant was required to so construct its road-bed as not to impair their usefulness, and to erect bridges, not embankmonls, across thorn. See. 2, Act No. 106, approved October 25, 1871; Acts 1872, pages 8 et seq.

    8. There can be no set off of benefits against actual injury resulting from the erection and continuance of an embankment, by which the lands of the adjacent proprietor are flooded. Wood’s Law of Nuisance, See. 359.
    9. The error of a trial judge in coercing a remittitur of a portion of a verdict, under threat of granting a new trial, may he reviewed on appeal. 95 IT. S. 694; 18 Eed. B. 331; 15 Eed. B. 490. Especially, if the demand itself be not reduced. A trial judge has no right to substitute his opinion for the verdict of a jury as to the qumitum of damages. 1 Mason 177.

      .Robert Moll and Harry H. Hall for Defendant and Appellant:
    1. The prescription of one year applies to injury caused by the construction of a railroad embankment. V. C. C. 3535 (3603); 22 Ann. 636; 16 Ann. 338; 21 Ann. 492: 20 Ann. 214; 16 Ann. 340; 25 Ann. 414.

      Prescription "begins to run from the day when the damage was sustained, and not from the day when the act complained of was committed. V. 16 Ann. 354; 3 Ann. 529; 22 Ann. 616; 37 Ann. 728.
    2. All claims for land or damages to owner growing out of the expropriation thereof for public or quasi public works are prescribed by two years. C. C. 2630 ; Revised Statutes, 698, 1479; Acts of 1880, p. 169; 31 Ann. 478; 35 Ann. 949. Manning’s "Uhreported Casos, 231.
    3. “A remission in the court below of the amount of damages allowed by the jury, will stop the party from setting up any claim for damages in the Appellate Court.” Kemp vs. Womack, 1 Rob. 367; Y. Leonard vs. Kleinpeter, 7 Ann. p. 44.
    4. “If a party having a right, stands by and sees another building on the property in a manner inconsistent with that right, and makes no objection while the act is in progress, lie cannot afterwards complain. That is the proper sense of the word ‘acquiescence,’ Rediield, Railways, vol. 2, p. 390; St. Julicn’s case, 35 Ann. 924; 18 Ohio 169; Pierce on Railroads, 169, 230 ; Well’s Eminent Domain, Sec. 140; 35 Ann. 947; Bourdier vs. Belleisen; Day vs. R. R. 36 Ann. 246.
    “ If a land owner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute, remains inactive and permits them to go on and expend large sums in the work, he will be stopped from maintaining "either trespass or ejectment for the entry, and will be recorded as having acquiesced therein.” Wood’s Railway Law, vol. 2, pago 792; Wood’s Railway Law, vol. 2, page 786.”
    “ It is also true that under the Constitution and laws of this State the assessment of damages and payment or deposit of the amount is a condition precedent to the vesting of the title, or of any right in the company to construct then: road. But these conditions are susceptible of being waived, and in these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his claim for prepayment, will be held to preclude the right to assort the claim in any such form as to stop the company in the progross of the work, and especially to stop tbe running of the road after it has been p.ut iu operation, whereby the public acquire important interests in its continuance, Whatever rights the plaintiff may have against the present plaintiff in error, growing out of this right of way question, and whether ho is estopped in pais to assert any or all of them, it seems clear to me that he is not entitled to a judgment that would enable him to sever a line of commerce which, by his assent, if not through his active agency in part, was constructed over the same property, and has enjoyed free passage over it for at least seven years.” Wood’s Railroad Law, 2, page 785; 33d Yt. 311.
    “ To entitle one to relief, by injunction, against the construction of a railroad over his land, he must use due diligence in the assertion of his rights since the relief will not be granted in favor of one who has been guilty of great laches, and who has, by his own conduct, given an implied assent to the construction of tho work which he afterwards seoks to restrain. Thus, 'where the owner of land has silently stood by and neglected to assert his rights, and has permitted a railway company to enter upon his land, and to proceed with the erection of its works for a considerable length of time, without interruption or complaint, he is estopped from the aid of equity for the prevention of the work.”, High on Injunctions, vol. 1, par. 618.
    “ The owner of the lands who allows a railroad company to occupy and use the same for the construction of its road, and other appurtenances necessary to the operation of the railroad, without remonstrance or complaint, will be held to have acquiesced therein, and such acquiescence would bar his action to dispossess the company.” 39 Ann. 457. See also St. Julien’s case, 35 Ann. p. 926; Belleisen, 35 Ann. p. 947; 31 Ann. p. 478; 39 Ann. p. 427.

      5. “An interference with the flow of surface water, caused by a public improvement authorized by law, is a consequential injury. Tf a railroad or public road, made with reasonable care and skill, incidentally injures adjoining* land, by obstructing the flow of surface water, there can be no recovery for such injury.' Mills on Eminent Domain, par. 189 j GOthMo. 329, 334; 23(1 ET. Y. 42; 74 R. C. 220; 66th N. M. 62; Dacif. Rep. Dig*. 1-10, p. 070.
   T.

The opinion of tho Court was delivered by

Watkins, J.

Plaintiff is the owner of 950 acres of huid situated on Honey Island, between East and West Pearl rivers, in Louisiana, on which ho resides, and of about 170 acres on tho east bank of East Pearl river, opposite the former, in the State of Mississippi. He is a farmer, and engaged in stock raising. He alleges that these lands were worth $50 per acre in 1882. That during that year, the defendant company commenced and constructed their railway through a portion of said Louisiana tract of land, that is to say, the south half of section thwtyeiyM of township seven, of range iifteen, containing 320 acres, and extending diagonally through it from the southwest to the northeast corner, on the west hank of East Pearl river — thus leaving, of the whole, three hundred and twenty acres south and west of the road, and six hundred and thirty north and east of it.

Petitioner avers that defendant company entered upon the lands without his consent and against his protest, and threw up an embankment from seven to twelve feet high, and occupied for their right of way a width of one and one-half acres of his land, for a distance of twenty-two acres, making' an aggregate of thirty-three acres in quantity, and of the value of $1650, and has since used, and now uses and occupies the same.

He further avers that the defendant’s embankment extends across Honey Island, from East to West Pearl rivers, a distance of six miles, and that it has impeded and destroyed the natural flow, and escape of the flood-waters which frequently come down Pearl river, as well as the surface waters in time of rains; that it has stopped up the. natural drains existing thereon, known as Roan’s bayou, and Bridge bayou, and thereby destroying the drainage into and through the same; that this impediment has caused his lands to overflow and their value destroyed for agricultural purposes, and as a suitable pasture for hogs and cattle, and rendering his avocation hazardous and attended with great loss of cattle, etc.

lie alleges that these lands were very fertile and produced large crops of corn, sugar cane, rice, peas, and potatoes; about one hundred and fifty acres were arable, and three hundred and fifty more were under fence; all of said lands (other than the lands just described) were cane bottom timber lands, specially adapted for grazing cattle, and as a range for hogs; and, being more elevated than those adjacent, they afforded a “ safe refuge for cattle and hogs in time of high water, and freshets.”

The petitioner then particularizes and specifies the various different items of damage he has sustained, in consequence of the construction and maintenance of said embankment', and which aggregate $11,850, in addition to the value of the right of way, specified above.

The defendant first tendered a plea of prescription, and, it having been passed upon, it filed an answer declaring, that it had constructed an usual and customary road-bed across Honey Island, under the law, of only sufficient size and height to be above, and withstand the floods which frequently cover said land. That it crosses said land in such way as to offer the least possible resistance to overflow, or other water, and at a cost of maney thousands of dollars more than the value of the land. That the plaintiff knew of the construction of said embankment, which was many months in course of construction, and did not take any legal action to prevent it. It denies that any of plaintiff’s alleged complaints were ever made to any person duly authorized to rex>resent the company, and that “same should have been made to the president, or other legal representative of the corporation, and not to a subordinate; and if there was a difference of opinion as to the effect of the public work about to be constructed * * upon the drainage or water-flow , * he should have provoked and obtained a legal interpretation of his rights, in time %o prevent the construction of the work complained of.”

It avers that the bayous which are alleged to be closed up are not bayous or running streams, but mere gulleys, and not natural drains, in any sense of the word. That Honey Island is a very low tract of land, which has been subject to annual inundations, “ ever since the memory of man.” That people who own and graze cattle on this island, remove them, every season of overflow, to the high land east of Pearl river, as a place of safety.

That persons who plsuit crops of any kind on that laud take the chances of having them destroyed, and that such has always been the case since the island was first settled. That the overflow upon said land is equal and uniform, submerging it above and below its road, which adds nothing to its height, or to the force of the water’s current, and that it remains upon the land only for a short while at a time, passing off when the river runs down.

Defendant avers that, instead of plaintiff’s lands being worth fifty dollars per acre, same are not now, and never have been, worth more than fifty cents per acre; and denies that there is now, or ever has been any valuable pasture on plaintiff’s land, or that the company ever promised him anything for the insignificant strip that was necessarily appropriated for a road-bed.

The case was submitted, in the court below, without argument, and the jury rendered a verdict of $7500 for the plaintiff, and found that the embankment complained of, constitutes a continuing obstruction to the natural drainage of plaintiff’s land, and that the defendant ought to be condemned to reopen such natural drainage, by the removal of said embankment, or otherwise.

The defendant made a motion for a new trial, and, when it came to be heard, the judge a quo signified that the verdict, in his opinion, was excessive, and plaintiff’s counsel entered a remittitur of the amount of the verdict in excess of $1000, for which sum the judgment was signed, and therefrom the defendant appeals.

Counsel for plaintiff contends that this was a case of a remittitur entered under judicial compulsion, which does not estop Mm from having it set aside, and recovering the full amount of the verdict. But, in consideration of the views we entertain of the merits of this controversy, it is unnecessary for us to discuss this interesting question.

II.

As a satisfactory classification of the demands of the plaintiff, as represented by the verdict of the jury, we will collate them from his counsel’s brief. They are as follows, viz:

1. Oat crop destroyed in the spring of 1886.

2. One horse and one mule drowned in 1886.

3. Value of right of way over forty-three and one-third acres of land.

4. Loss of rent of fifty acres of cleared land for the year 1886.

5. Injury to 900 acres of land by washing.

6. Pour hundred acres denuded of vegetables by the overflow of 1886.

7. Destruction and deprivation of pasturage for 1000 head of cattle, during the overflow of 1886.

All of these items aggregating $9541 in amount.

Before commenting on the evidence appertaining to the merits, we will consider the defendant’s plea of j>rescription of one and two years.

III.

On the trial of the plea of prescription, the judge a quo maintained it as to the claim for cattle lost, and deprivation of land during the years 1882, 1883, 1884 and 1885, this suit having been filed on the 15th of February, 1887. To this part of his ruling, plaintiff’s coimsel urges no complaint in his brief. The judge further ruled that the defendant’s right must be reserved in respect to said plea against the claim for damages sustained by the loss of a horse and a mule in the early part of 1886, “until it is made to aqipear from the evidence at what date, or dates said animals were lost.”

The judge, further ruling, maintained the plea “ with respect to such damages to, and deprivation in the value of the land, as may have occurred, or resulted prior to February 16th, 1887.”

It should read 1886, as the court liad under consideration the damages alleged to have been “ sustained more than one year before the service of citation in this suit, February 16th, 1887.”

Consequently, it will be seen that the items claimed in the specifications do not, on the face of plaintiff’s petition, fall within the period mentioned, and how the same may be affected by the evidence we shall see in the progress of the discussion.

The judge’s ruling, as we understand it, does not affect plaintiff’s claim for compensatory damages for the value of defendant’s right of way. Nor do we think the two years’ prescription pleaded, applicable to this demand. Sections 698 and 1479 of the Revised Statutes, do not apply, because the defendant did not comply with their provisions and cause the plaintiff’s property to be judicially expropriated. R. C. O. 2630.

These different provisions of law are substantially the same, and are to the effect that whenever a railroad corporation “cannot agree with the owner of any land which may be wanted, for its purchase, it shall be lawful for such corporation to aq>ply by petition to the judge * * describing the lands necessary for their purposes, with a plan of the same, and a statement of the improvement thereon, if any, and the name of the owner thereof, if known and present in the State, with a prayer that, the land be adjudged to such corporation, upon the payment to the owner of all such damages as' he may sustain in consequence of the expropriation of his land as a public work. All claims for land, or damages to the owner, caused by its expropriation for the construction of any public work, shall bo barred by two years’ prescription, which shall commence to run from the date at which the land was actually occupied and used for the occupation of the works.”

Sec. 5, Act 125 of 1880, p. 169, is to the same effect.

This evidently means the occupancy by the corporation of the owner’s property under the judge’s order of adjiidication. There is a wide distinction between the occupancy of a corporation under a decree of expropriation, and an occupancy without the authority of the judge, or even the sanction of the owner, as is alleged in this case.

Jefferson and Lake Pontchartrain Railroad Company vs. The City of New Orleans, 31 Ann. 479, cited by the defendant’s counsel, rests upon the provision of a special statute, exceptional in character.

Act 365 or 1858.

Under the fourth section of that act a hoard of commissioners was invested with full power to drain certain districts of the City of New Orleans, and to that end it liad the right “at all times, of entering on the lands * * and of placing therein their engines and macMnory * ® and of digging all necessary canals and drains, making all necessary embankments and levees, etc.” The only right the owner had reserved him, was that of making opposition in the courts. In that case the court held that the title did not pass to the commissioners, “but only a right of servitude of drain ” was created. The compensation claimed in that case was for damages sustained by a “forcible, wrongful and illegal entry” upon plaintiff’s land. In this it is for the value of the land, the fee in which lias passed to the railroad company.

We are of the opinion that this plea is not good.

But the damages alleged to have been sustained to plaintiff's land, by washing, are governed by an entirely different rule, and to this claim the plea urged is good, and the demand was, by tlie judge a, quo, properly restricted to such- damages ¡is were sustained witlmi one year prior to suit.

Plaintiff’s theory iu reference to a continuing obstruction to the natural drainage of bis bind, and same giving rise to a continuing damage, which is, in some manner, imprescriptible,,we do not think well founded in law. We can well understand the principle, that, in case of a continuing nuisance, resulting injuriously, one recovery does not exhaust the right of action, nor preclude another, or many, subsequent recoveries, so long as it remains unabated; but we are of the opinion that it cannot be, with propriety, extended so far as to suspend prescription in case no action is instituted, at all, If plaintiff has permitted the obstruction, and consequent damage, to continue, on the very premises he has occupied, and attempted to use, during all of those years since 1882, without suit, or judicial restraint of any kind, we are decidedly of the opinion that the plea of one year’s prescription is applicable, and, though a harsh remedy, must be applied.

IV.

It is well to observe, at tlie outset of a discussion of the facts of this case, as applicable to tlie merits, that, on account of the large number of witnesses who were examined by the parties respectively, under commission and in open court, and the great latitude allowed in their examination, the issues have been of very unsatisfactory analysis; and, on that account, we find it practically impossible to give the testimony in detail, or byway of an intelligent summary. Nor, in our view, would even a concise digest of it, subserve any useful purpose, but on the contrary, would unnecessarily encumber our opinion.

We find in evidence a report made by the Chief of Engineers to the Secretary of War, in 1879, in which 'is given an accurate idea of the topography of Honey Island, as evidenced by actual surveys. This report was made during the period of' plaintiff’s occupancy, and immediately previous to the construction of the embankment in question, by the railroad company.

This report states that the general, or mien course of Pearl river, from Jackson, Mississippi, to the Gulf of Mexico, is duo south, and that the distance between those points is about 290 miles. The head of West Pearl river is at the end of the 265th mile from Jackson, near Wakiah Bluff, at which point the valley is several miles wide, “ and it is all low cypress brakes and bayous, and.o.ld river channels, bordered with high cane and thick woods in narrow belts. The height of the flood of 1874, was here 26 feet above low water. * * At the end of the 277th mile from Jackson, old Pearl river makes an abrupt turn to the northeast, and it is at this point that Home Bayou leaves to the right. It has a mean depth of ten feet, and is full of sharp, short bends. * * A mile below its head Little Home Bayou leaves to the northward, but it is joined by several bayous from the west swamps, and where it again returns at the 280th mile, it has fully twice as much water as it had when it left. Below its entrance into Home Bayou there is an immediate increase of live feet in depth on the low shoal places, and a width of not less than 100 feet. * * At the end of the 282nd mile West Pearl river again enters with nearly all the water of the valley. * * * The left bank of Home Bayou is called Honey Island, and it retains the name down to East Pearl river entrance, near its mouth.

“Honey Island was once inhabited, and very many farms, were, for a long time, cultivated on it; but owing to the height of the floods it has been nearly abandoned.” P. 897.

This quotation is made from the sketch and field notes furnished by the assistant engineer, and embraced in the report. But in his report the chief says:

“ Perhaps no stream in the country has had its character so entirely changed within the past fifty years than lias this. Not later than fifty years ago it was known as an excellent, navigable, clear-water stream. ’■ * The stream is now as muddy as the Mississippi river; its length has been shortened fully one-tenth by cut-offs, and its banks, in nearly every bend, are annually caving in, with their load of trees to form obstructions to navigation. Ms natural sequences planters liaive been driven, by floods, from the bottom lands, which they denuded of their protecting- forests and- undergrowth, and the commercial business of tlie valley has been entirely destroyed.” P. 899. '

There are several witnesses — some for the plaintiff and some for the defendant — who confirm this statement from the engineer’s report. They assert, from actual personal- knowledge, that Honey Island has, for a groat many years, been subject to extensive overflows, at intervals of several years, and to lesser ones every year, and ranging- in depth, from one to ten feet. That there are but few people living on the island, and it is regarded as a free pasture for cattle and range for stock. That milch cows frequently swim Pearl river twice a day going to, and returning- from the island. That when the water floods the banks of Pearl river it covers everything,” That the owners of cattle drive, or swim them out during times of high water, as they could not live on the island. That the people who reside on the island are those of small means and who cultivate very small patches of a few acres each.

The plaintiff’s lands' are rather more elevated than others on the island, and some of them produce cereals very abundantly. There is some evidence to the effect that the rental value of some of his lands have been diminished considerably since the construction of the embankment, but they do not attribute same'wholly to that cause; while others deny it. It is shown that the lands situated on East Pearl river, at that point, are six or eight feet higher than those on West Pearl river —eight or ten miles distant — and that the natural inclination of the ground is in that direction.

As it is a conceded fact that defendant’s road-bed and embankment extend diagonally through plaintiff’s land from southwest to northeast— and plaintiff’s land is, at the point of its intersection, only three-fourths of one mile in width, and situated on the west bank of East 1’earl river where the lands are of the greatest altitude — it stands to reason and philosophy that the embankment, while it operates as a temporary restraint to the overflow and surface water descending, would at the same time, serve to increase their flow towards West Pearl river, and soon relieve the land; while, to the lands below, it would be an additional protection against both.

Taking tlie testimony, all in all, we are of the opinion that five hundred dollars would be a liberal allowance to the plaintiff for all ike damages he has suffered from the causes assigned.

Y.

The defendant’s witnesses state that the railroad company’s road-bed and right of way occupy about forty acres of plaintiff’s land — which is more than is demanded in plaintiff’s petition — and may be accepted as about the correct allowance to be made in quantity; but, from all the testimony, we think plaintiff’s estimate of fifty dollars per acre — situated as these lands are, andas they are undoubtedly circumstanced — is an extravagant extimate. It is submitted that five dollars per acre is a fair and adequate compensation for them, or two hundred dollars for the whole.

YI.

There remains but one other question for solution, and that is the claim in the verdict and judgment which condemns the defendant to reopen such natural drainage by the removal of said embankment, or otherwise.”

It would certainly be unjust to the railroad company to compel it to remove the superstructure and demolish its embankment throughout the entire distance from East to West Pearl river and erect, in its stead, an expensive trestle, merely for the relief of plaintiff’s six hundred and eighty acres of land, situated above. Surely the defendant’s act, in openly entering upon the defendant’s land, with plaintiff’s knowledge, and in full view of his domicile, and constructing thereon a most important link in their transcontinental railway, could not subject it to such consequences. But this is not an open qrrestion, however, as it has been by us twice considered and decided adversely to plaintiff’s contention, and in cases cited in plaintiff’s brief.

In Bourdier & Bellesein vs. Railroad Company, 35 Ann. 949, it was said:

If the entry was unlawful, the plaintiffs condoned it. They should, at once, and peremptorily have forbidden the entry of the defendant, if they intended to dispute its right to the road-bed, etc. * * They should have denied defendant access, and ha-veprevented it by using legal process.”

• In St. Julien vs. Morgan’s Railroad Company, same volume, at page 925, this court again said, in even more conciso and unequivocal terms, upon the same subject:

It is unnecessary for us to say or to intimate how, or whether ho, would have been protected had he done more than talk io a lawyer. Certain it is lie did not invoice the arm of the law, at a time when it would have been of service to him, bnt, on the contrary, acquiesced in tbe defendant’s taking possession and using Iris property, encouraged it to irrosecute its work by abstaining from any attempt to prevent it, and made no complaint in a court of law, of tbe injuries inflicted upon him, until tlio defendant had expended large sums of money in completing it. Having thus permitted the use and occupancy of his land, and the construction of a quasi public work thereon, without resistance, or even complaint, he cannot afterwards require its demolition, or prevent its nse, etc.”

(The italics áre ours.)

It is submitted that the jriaintiff lias acquiesced in tlie construction of the embankment on his land by the defendant company. It was erected in 1882, and this suit was not filed until 1887.

He certainly did not attempt, by a due and timely resort to judicial proceedings, to prevent its construction. As we understand it, plaintiff’s complaint is that the defendant constructed an embankment and not a trestle, and that it lias failed to make compensation for tbe injury bis property has thereby received — there having been a disagreement between himself and the officers of the corporation, as to tlie amount due.

Our predecessors maintained this principle in Jefferson and Lake Pontchartrain Railroad Company vs. City of New Orleans, 31 Ann. 481, cited supra, and in which is quoted an extract from Goodwin vs. Cincinnati, 18 Ohio 169, and from which we select the following paragraph, viz :

Where á party stands by * * and silently sees a public railroad constructed upon bis land, it is too late for him, after the road is completed * * to seek by injunction, or otherwise, to deny the railroad company the right to use the property. Considerations of public policy, as well as recognized principles of justice between parties; require that wo should hold, in such cases, that the property of the owner cannot de reclaimed, and there only remains to him a right of compensation. An injunction * * might home been sought at the first known attempt or even threat to despoil tlie land, or to construct tlie railway upon its line. 'The omission to do so is cm implied assent. The work being completed, the public, as well as those directly interested in tiie road * * have a right to insist on the application of this rule.” Vide Tilton vs. Railroad Campany, 35 Ann. 1002; Lawrence vs. Morgan’s L. and T. R. R. and S. Co., 39 Ann. 427.

VII.

We think the defendant did not violate the terms of its charter requiring it to “maintain its railroad over and across waters of the State of Louisiana known as Lake Pontokartrain and other streams anti bayoits between Lewisbnrg and Pearl river by britltjes.”

The proof does not show, to our satisfaction, that the depressions existing in 1882, in and through some portions of plaintiff’s lands, were, in the sense of that provision of defendant’s charter, either bayous, waters, or water-courses. Evidently they were such as had been made, from time to time during years previous, by the attrition of overflow water from East Pearl river and surface-water produced by the fall of rain.

These are inherent to any soil which is left in a state of nature, and unprotected by levees or embankments. ■ We do not regard them as of the character of streams which the railroad company was obliged to bridge, or span with culverts.

Entertaining these views, the judgment appealed from is excessive to the extent of three hundred dollars •, and that part of the decree which requires the demolition of the embankment complained of, is reversed, and set aside.

It is, therefore, ordered and decreed that tho judgment appealed from be amended in the following particulars, viz:

1. So as to reduce the amount thereof from one thousand to seven hundred.

2. So as to relieve the defendant company from demolishing, or altering its embankment and road-bed.

And that, as thus amended, same be affirmed with the cost of appeal taxed against plaintiff and appellee.


author: McEnery, J.

text:
    No. 10,229.
    Miss S. M. Lynch vs. T. J. Sellers & Co.
    This caso involves only questions oi' fact.
    Where a party entered into a contract with tho owners of tho main building in tho Exposition grounds to take down the trusses and spars at five dollars for each, and the owner, while the contractor was at work within the building, stripped, it of sheathing, rafters, purlines and braces, so that, the trusses and spars fell, some of which killed two of the contractor’s employees and wounded another, held that ho was justified in quitting the work and abandoning his contract, and. that tho owner of the building should pay him as damages the profits which ho would have earned as though he had completed his contract.
    APPEAL from the Civil District Court for the Parish of Orleans. Rit/htor, J.

      Harry 71. 7Tal! for Plaintiff and Appellee.

      Slice <& Armstrong for Defendants and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

Plaintiff brought this suit to recover from defendants the sum of three thousand one hundred and ninty-ñve dollars and twenty cents, for services performed under and damages due her for violation of a contract entered into between them for taking down the main building, and for a contract to take down the government building in the Exposition grounds. In relation to the government building it is alleged that there was a verbal contract made at the same time that the contract for the main building was executed, and that it was agreed between them that if the services about the main building were satisfactorily performed that the contract for taking down the government building would be awarded to plaintiff.

The written contract between the parties, in substance, is as follows:

The plaintiff was to receive five dollars for each truss or section, and each truss or section included the whole of the interior framework which was in position or place between two uprights or posts, and to include plates, braces, jack rafters, ridge pieces, pnrlines, double posts or uprights supporting plates on which spans of seventy-five feet spars and fifty feet spars rest, including also main uprights or posts. False trusses and hip rafters were to We counted as trusses. The whole was to be lowered and piled in their respective sizes, and scantlings, nails and spikes were to be knocked out. All necessary and proper' braces, struts, etc., were to be used by plaintiff for the safety of the various parts of the building. All responsibility for injury to plaintiff’s employees was assumed by her. Work was to commence on June 14,1886, and was to be completed by the 15th of July ensuing. The passage ways were to be kept free from debris or lumber of any kind that might prove an obstacle to the work of idnintiff, she agreeing, however, to demand the services only of one person to clear away the lumber. The whole work was to be done under the supervision of an architect, whose decision on all disputed points the plaintiff agreed to aecexat as final.

On the trial evidence was offered to prove that at the time of making the contract it was stipulated that the government building was to be awarded to the xdaintiff, and that she took the contract for the main building with this understanding. Objection was made to the introduction of this testimony. The district judge overruled the objection and admitted it, to consider the question thereafter, whether or not there was any contract relating' to the government building which induced the plaintiff to accept the main building contract. Under this view of the question, the district judge did not err in admitting the evidencie.

Plaintiff alleges and defendants deny any such contract. Brady, a witness, was present when the conversation occurred about the government building. He says Mr. Lynch wanted the contract for the government building. Mr. Sellers made the remark: “Do this first, and then we will talk about the government building afterwards. If you do this work satisfactorily then we will consider the government building.” Banks says that Sellers told him that he had partly made an agreement with Lynch, and if he suited him he would give him both buildings. Beid says he was told by Sellers that lie had let the main building to Lynch with the privilege of the government building. No contract is proved between the parties in relation to the government building. If any agreement was made it depended solely upon the will of defendants and was therefore a nullity.

There was but one contract which was reduced to writing, and referred only to the main building.

In the suit of Carey vs. Sellers & Co., who are the defendants in the instant case, T. G. Sellers, one of the defendants in that case on behalf of the defendants, swore that Lynch performed his work carefully, prudently and satisfactorily. They are now estopped from alleging- violation of her contract. For the purposes of this case it is assumed that she performed all the obligations which her contract with the defendants imposed upon her. The contention is narrowed to the question whether or not T. J. Sellers & Co. so violated their contract with the plaintiff as to prevent her from carrying out her agreement with the defendants, in consequence of which she suffered damage and loss.

The contract stipulated that the building should be taken down under the supervision of an achitect. The selection of the architect was solely with the defendants, and they were responsible for Ms capacity and ability to perform the work.

No arcMtect was appointed.

Croman, who was not a practical or professional architect, was selected and apiminted by the defendants to superintend the work of taking down the building. If does not appear that he performed any of the duties of an architect, or formulated any plans by which the building could be safely demolished and taken down. On one occasion, however, it seems, he -notified T. J. Sellers of a dangerous line of trusses, but they were trasses which had been stripped by T. J. Sellers & Co. T. J. Sellers, one of the defendants, seems to have assumed the duties of architect, and he gave general directions to the work going on.

Tn his testimony, ■ lie. says, with an independent gang of laborers, while Lynch, agent of the plaintiff, was taking down trasses, he preceded him and stripped off the sheathing, purlines and rafters, and that Lynch took off no purlincs, rafters or roof in advance of his work. He says, in section 0, 24 spars weighing 9000 pounds each, and in section OP, 24 spars of same -weight fell, and that in two other sections 27 spars fell, and that in all these sections in which spars fell they were stripped by his men, and that Lynch had not worked in any of these sections. All of these spars fell -when no one was working there, and at different times. But he says they were blown down by a windstorm. He says, however, that they fell by reason of having been weakened by the taking out of pudines.

Lynch took out some sawbuclc braces, but .it does not appear that they weakened the building. The evidence is to'the contrary. He took them out under protest, and under threat of being discharged if he did not do so.

On August 13, seven or eight spans fell, killing of two of Lynch’s men and wounding another. Lynch narrowly escaped. His men were demoralized, refused to work in the building, and plaintiff abandoned her contract. Lynch remained in the building as long as it was prudent to do so, and only abandoned the work when he was painfully admonished that he could no longer remain in it with safety to himself and his laborers.

There can be no doubt but that the building was weakened by the manner in which it was stripped by the defendants.

Being aware of the dangerous condition of the building, Sellers & Co., on August 6, notified Lynch to properly brace the trasses in the seventy - ñve feet spans, on which he was about to commence work, and warned him of their intention to hold him responsible for any injury to materials, and “before starting -work, these trusses must be braced in a secure manner, as will be designated by inyself or the person authorized by me to act in the premises.”

No plan of bracing was devised bjr Sellers & Co. The defendants offered in evidence Lynch’s letter in reply, in which he promised to do what was necessary. It is presumed he did the necessary work to secure the braces. According to defendant’s own statement he was not in default.

The evidence establishes the fact that the defendants, T. J. Sellers & Co., certainly violated their contract by improperly removing braces and purlin es, and that plaintiff could not prudently continue to work in said building; tliat tlie trusses fell from tlie taking away by them of the proper braces and supports. Before defendants could require plaintiff to enter said building and complete her contract it was their duty to make secure the remaining trusses. The plaintiff was not put in default. About one hundred of the trusses remaining were iDulled down by Sellers & Co., because of their dangerous condition, and the balance wore taken down after having been secured by another contractor.

The plaintiff is entitled to receive the profits which she would have earned if the contract-had been completed, as it is defendant’s fault that prevented her from completing the contract.

Lynch, the agent of plaintiff, and who did the work for her, says that the profit on each truss or span would have been $3 25. Defendants estimate the profit at $1 25, based upon a calculation from amounts paid for taking down the trusses that remained after Lynch quit the building. But the cost was greater, as the trusses had to be secured and it was made from a general average of amounts paid out.

We adopt plaintiff’s calculation, as it is not directly contradicted.

There is considerable diversity of opinion among the witnesses as to the number of trusses taken down by the plaintiff, and the total number in the building.

We conclude that there were 618, and that the plaintiff took down 291, for which she was entitled to $1455. Of the remaining 327 trusses wliich were taken down, or fell down, she is entitled to a profit of $3 25 for each truss — amounting to $1062 75. She admits having received from the defendants $1532.

, The contract provided that she should take out the bolts, nails; take apart the trusses and pile and assort the lumber. A part of this she performed. No time was designated for the .performance of this part of the contract, but it should be estimated in ascertaining the amount due her. We fix the amount for the trusses taken down by her, and which were not taken apart, bolts and nails not withdrawn, and lumber not piled and assorted, and the same work done by defendants on the trusses which fell and which were taken down by them, at $235. This calculation brings the amount due the plaintiff to within a fraction above the amount ascertained by the district judge.

We are of the opinion that the judgment appealed from did substantial justice between the parties, and it is therefore affirmed.

Boché, J.; having not heard the argument in this case, takes no part.


author: Poche, J. McEnery, J.

text:
    No. 10,269.
    The State ex rel. Gervais Lêche, District Attorney, vs. Augustus Fowler.
    In questions involving the appellate jurisdiction of the Supreme Court, it is settled practice that if it appears from the pleadings that one of the parties to the suit has an appealable interest entitling him to appeal to the Supreme Court, the same right must he recognized in favor of his opponent.
    An elector who has declared his intention to become a citizen of the United States in pursuance of Art. 185 of the State Constitution, is a citizen of the State and qualified to hold the office of coroner.
    APPEAL from tlie Twenty-Sixth District Court, Parish of Jefferson. Most, J.

      Walter II. liogers, Attorney General, Gervais Leche, District Attorney, and A. IS. Billings, for the Relator and Appellant.

      II. N. Gautier, Mott, Brolla & Augustin, and F. 8. Brolla for the Respondent and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poche, J.

The ground of the motion is that this Court is without jurisdiction ratione materia), because the relator, who is appellant, has no appealable interest in the controversy.

The suit involves the right of the defendant and appellee to the office of coroner of the parish of Jefferson, the fees and emoluments of which are alleged to exceed the sum of two thousand dollars in value, and the record contains an admission to that effect by the appellee.

It is therefore undeniable, and it is not contested, that if cast in the suit the defendant would have had a right of appeal to this Court.

It is a settled practice in our jurisprudence that if one of the parties in the controversy has an appealable interest at issue, the other party is ■ipso facto vested with the same right. State ex rel. Nichols, Governor, vs. Mayor, recently decided. Handy vs. New Orleans, 39 Ann. 107; Ready vs. New Orleans, 27 Ann. 169; State ex rel. vs. Judge, 23 Ann. 595; State ex rel. Murtagh, vs. Judge, 23 Ann. 761.

The motion to dismiss is therefore denied at appellee’s costs.

On the Merits.

McEnery, J.

Tlie relator asks for tlie removal of the defendant from tlie office of coroner for tlie xiarisli of Jefferson "because lie is not a citizen of Louisiana and is therefore ineligible.

Tlie defendant was elected to the office of coroner at the last general State election. He has all the qualifications of an elector prescribed by Art. 185 of the State Constitution.

Previous to his election he had declared his intention to become a citizen of the United States, hut he has never been naturalized. For this reason it is urged he is not a citizen of the United States, and therefore not a citizen of the State.

A person who is a citizen of the United States is necessarily a citizen of the particular State in which he resides. But a person may he a citizen of a particular State and not a' citizen of the United States. To hold otherwise would he to deny to the State the highest exercise of its sovereignty, the right to declare who are its citizens.

The sovereignty of the citizens of a republic has its highest assertion in representative government, and is constituted in its political order in the representation of persons; and not of classes or of interests. In the realization of this sovereignty of the people, its expression is obtained through some law regulative of political action by which the will of the people can he obtained. This is done through the instrumentality of qualified electors who, in the exercise of a free will assert in conformity to that law the determination of the civil and political organization in which is manifested the will of the people. Electoral right is a political right, and although the right to vote is primarily the right of every citizen, yet it may he denied to a certain class of individuals. Therefore a person may he a citizen of the State, and may not he invested with electoral power. It is, however', difficult to conceive how a person can he an elector and not a citizen of the community in which he exercises the right to vote. The State, in the exercise of its sovereignty, can confer the right to vote, can make an alien an (hector, and electoral power, when thus bestowed and exercised, becomes one of tlie most important duties, and the highest and proudest privileges of citizenship. The elector is, therefore, one of the sovereign people, a member of the civil State, and entitled to all its privileges.

The Constitution of the State makes no distinction between citizen and elector. The words are used to signify the same thing. Art. 22 says every elector shall he eligible to both houses of the General Assembly, provided he has been a citizen of the State four years preceding his election.

It is evident that the word citizen and elector are used synonymously It would be a strange anomally if a person, not a citizen, could be admitted as a member of Hie General Assembly, to aid and assist in tlie organization of tlie government, and tlie enacting of laws.

In other articles of the Constitution the distinction between Federal amístate citizenship is clearly drawn. Whenever it is intended that tlie qualifications for office shall be a born or naturalized citizen it uses the expression citizen of the United States,” as in Articles GO and 82, prescribing the qualifications for Govenor, Lieutenant Govenor, and judges of the Supreme Court. The defendant is eligible so far as citizenship is concerned, having all the qualifications prescribed by Articles 185 and 195 of tlie Constitution, to hold the office of coroner of the parish of Jefferson.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,302.
    John McGinty vs. Succession of John Henderson.
    1. Cheeks, signed and issued hy a debtor and received by a creditor as payments on account of a debt, are competent evidence to prove interruption of prescription after the decease of the debtor under O. O. 2278.
    2. The fact that such checks have been surrendered on payment and have returned into tlie possession of tlie debtor, does not effect their evidentiary value and competency, and a ¡wbpcencocLuccs tecum to compel their production isa legal and proper remedy.
    3. Although the cheeks themselves do not establish a payment on the particular debt, they do establish a payment, and it is well settled that parol evidence is admissible to explain an acknowledgment and to connect it with the debt to which it applies. To this purpose, the. stubs of the chock-book from which they were taken, though not signed by the debtor, a e competent evidence, like other parol evidence.
    APPEAL from the Civil District Court for tlie Parish of Orleans. King, J.

      White di tittundem and J. Tinwmj for Plaintiff and Appellee.

      Jlornor <£ .Lee for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Fenner, J.

The suit is for $25,000, balance of a loan of $35,000, alleged to have been made to tlie decedent, John Henderson, on May Jlth, 1883.

The defenses are two: 1. A denial of the debt; 2. tlie prescription of throe years. We will consider them separately.

I.

The fact of the loan is proved by a variety of cumulative evidence :

1. Two witnesses, one the plaintiff, the other the private bookkeeper of Mr. Henderson, affirmatively prove the loan as made by the delivery .to Henderson of a bank check for $35,000 payable to the order of Mrs. Jolm McGinty, and by her endorsed to the order of Henderson, and delivered to and collected by him. McGinty further establishes the terms of the loan to have been that Henderson was to pay annually the interest at six per cent on the whole amount, and to repay the principal in seven annual installments of $5000 each, or sooner, if demanded.

2. The check itself for $35,000 is produced corresponding to the description above given, deposited in bank.by Henderson, and duly paid and cancelled.

• 3. Tn answer to a submenu duces :iecunt, Mrs. Henderson produced in 'court, the cancelled checks and check-book of Henderson; from which it appears that-on July 29th, 1884, Henderson drew checks in favor of John McGinty for $7100, being, as-itho stubs show, $2100, as 6 pier cent interest on $35,000, and $5000 as the .first installment of the debt; and fon 'July 16th, 1885, that he drew .aii'oííiói". check in favor of Mrs. Mc-'Ginty for $6800, being, as the stubs'inilicfite, $1800 as 6 per cent interest on the $30,000 remaining due and $,5(Í0í).as the second installment.

Henderson died in the latter part df ;188¿í¡y.

''The probative force of the foregoing evidence, in absence of any contradictory pn-oof, is too conclusive Wbe byefthrown by mero insmna•tions based on slight eireumstancesbvhiclb when examined, are entitled to no weight.

We consider tlie debt fully piroved:-:--

IT.'

Actions for the piayment of moneydont are prescribed by three years. R.' O. O.. 3538.

■ As the plaintiff’s own testimony ¿tows that he reserved the right to demand the return of the whole loan, at his pleasure, the prescription must he held to run from the date of the loan. Andrews vs. Rhodes, 10 Rob. 52.

His suit was only instituted in Octbber, 1887, more than four years after the date of the loan, and the- pilca of prescription is good unless barred by legal piroof of interruption.

Article 2278 Rev. C. C. piro vides: “ L’arol evidence shall not be received to prove any acknowledgment or promise of a piarty deceased to piay any debt or liability, in order to take such debt or liability out of prescription * * * but in tlie oases mentioned in tliis article, tlie acknowledgment or promise to pay sliall be proved by written evidence signed by the party, who is alleged to have made the acknowledgment or promise, or by his specially authorized agent or attorney in fact.”

Partial payment made on a debt before prescription is acquired, is held to be such an implied acknowledgment as interrupts prescription but such payment, by a deceased debtor, like any other acknowledgment, must be proved by written evidence signed by him.

In this case, however, the payments are proved by the written checks of the debtor signed and issued by him to the creditor who held and owned them and only delivered them to the bank on their due payment; and by evidence conclusively showing that said checks were issued as payments on this particular debt. These chocks undoubtedly evidence a payment by Henderson to McGinty on some account, and in discharge of some obligation, and while they do not, of themselves, establish a payment on this particular debt, it is conclusively settled that where an acknowledgment in writing signed by a deceased debtor is proved, parol evidence is admissible to show the particular debt to which the acknowledgment was intended to apply. Harrison vs. Dayries, 23 Ann. 216; Succession of Kugler, id. 455; Tilden vs. Succession, 33 Ann. 1068.

The jurisprudence in England and in other States is similar. Hartley vs. Wharton, 11 Ad. & Ellis 934; Mitchell vs. Clay, 8 Texas 447; Bird vs. Gammon, 3 Bing. (N. C.) 883; 3d Reed on Stat. of Frauds, § 1089; Wood on Limitations, p. 218.

Counsel for defendant cites a line of authorities, holding that the acknowledgment to take a debt out of prescription must be made to the creditor or his agent, and that a mere writing acknowledging a debt retained by the person making-it and never delivered to the creditor or any one else, cannot servo as an interruption of prescription. Wood on Limitations, p. 195; Allen vs. Collins, 70 Mo. 138; Edwards vs. Cully, 4 Hurlst. & Nor. 378.

But it is evident that these authorities have no application to this case, where the writings relied on, the checks, were issued and delivered to tlie creditor, were parted with by him only on their payment and returned to the possession of the maker only to serve him as evidence of such payment. If the plaintiff were disputing the payment in this case, these checks endorsed by him», would be sufficient evidence thereof, and it would be unreasonable to debar him from using them for the same purpose.

Equally inapplicable are authorities quoted holding that mere entries on the books of a debtor cannot serve as an acknowledgment interrupting prescription. Tlie checks are not mere entries on his books, and the entries on the corresponding stubs of the check-book are not offered as, in themselves, operating an interruption,, but-as the natural and proper evidence to explain and establish the purpose for which the checks were issued and the subject-matter to which they applied.

Objections were made to the subpcena duces tecurni under which defendant was required to produce the checks and books.

The ground assigned for this objection is the provision of Eev. C. C. Art. 3550, which declares : “ Good faith not being required on the part of the person pleading this prescription, the creditor cannot compel Mm or his heirs to swear whether the debt has or has not been paid, etc.” All the other objections go to the effect of the evidence; and this one is manifestly not sustained by the article quoted, inasmuch as no call was made on' defendant to swear whether the debt had, or had not, been paid.

We find no authority and no reason for extending the proliibition beyond the terms of the statute, and for exempting the defendant from compulsory process to produce competent written evidence in possession.

We, therefore, conclude that the plea of prescription was properly overruled.

Judgment affirmed.