author: MOUTON, J. MOUTON, J.

text:
    No.-
    First Circuit
    ALLEN v. CURRIE, ET ALS.
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)
    (April 9, 1928. Writs of Certiorari and Review Refused by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Conspiracy—Par. 1, 3; Offenses and Quasi Offenses — Par. 4, 10.
    Where several high school students without cause rushed out of a room, one holding a bottle of acid which he threw on another boy, they are guilty of a conspiracy to do an unlawful act and each one is liable in solido for the damages done.
    2. Louisiana Digest — Damages—Par. 103, 104.
    Fifteen hundred dollars is considered sufficient quantum of damages for injuries inflicted by the throwing of acid which caused severe pain and confinement in his home for two months and under medical attention for three months.
    Appeal from the parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Dennie R. Allen against William C. Currie, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    D. J. Sanchez and Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Chas. A. Holcombe and C. C. Bird, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff is suing in damages for the benefit of William Allen, his minor son, the fathers of the following named minors: William C. Currie, Jr., Robert E. Stearns, Jr., Marion Roberts, Carrol Sandifur, Bert Jordan, Dominique Arrighi and Shirley Arrighi, all residents of the City of Baton Rouge. The amount claimed is $10,095.50 for the alleged injuries which resulted from the throwing of a poisonous acid on the face and neck of William Allen on December 17, 1924. The throwing of the acid on Willie, as he is referred to in the testimony, occurred in the Baton Rouge High Schol Building on Florida Street, at night, at about 10 o’clock. The minors hereinabove named, were all pupils of that school. They had organized a juvenile club or society, which they had named “The Lion Tamers Club.” They say they were all members of the club with the exception of William C. Currie, Jr., who had. not been initiated, but who was to become a member.

These boys usually met in a small room in the eastern corner of the building. They met there for amusement and study. Though they had no permission from the school authorities to assemble in that building, their meetings, as far as the record discloses, were not prompted by any evil or unlawful design, and were harmless.

The proof shows that on the night of the occurrence, Willie Allen, Charles Collier and Bowman were walking eastward on Florida Street, and that just as they passed the eastern corner of the school building they saw a light burning in the room where the boys of the “Lion Tamers Club” were having a meeting. The door of the building was open, and Allen, with his companions, being attracted by the light they had seen, entered the building and proceeded by the stairway to the fourth floor where the room is located. Allen and his companions were unarmed and did not know who was in the room where they had noticed this light towards which they proceeded quietly and noiselessly.

Counsel for defendant seems to intend to convey the idea in their brief that Allen and his companions were moving furtively on the stairway as they ascended, and that they were prompted by sinister motives.

It is true, as was the ease with the boys who occupied the room where the light waa shining, that neither Allen nor his companions had permission from any one in authority to enter this building, but there is nothing in the record to indicate that they went in or proceeded up on the stairway with the slightest intention of committing any wrong whatsoever. They did not know, as the evidence clearly shows, who were those that occupied the room where they saw the light, and they could certainly not have been actuated by any evil design in entering or continuing on to the fourth floor. They were simply attracted by a feeling of curiosity and nothing else.

Allen and his companions reached the fourth floor, and when they got near or opposite the room where the meeting was being held, the floor creaked or some other noise occurred which was overheard by the boys in the room. It is shown that at that time these boys in the room were engaged in the telling of jokes or stories. As soon as they heard the noise in the hallway or near the door, the light immediately went out, and out of seven boys in that room, six rushed out together or in a bunch. Several, if not all, with bottles in their hands. All was then in darkness with the exception of one or two flashlights which one or two of the boys carried as they rushed out of that room.

Allen and his companions fled immediately, and without showing the least desire to resist or do any bodily harm to any one, a fact which corroborates our first statement to the effect that Allen and his companions had not gone up to that room with the slightest design to commit any wrong or to do any injury. They fled, as before stated, and the boys who had rushed out of the room chased and pursued the fleeing Allen, ¿nd Collier, one of his companions, westward through the building from where Allen and Collier ran downward along the stairway, and as they reached the third or second floor, acid was poured from a bottle and fell on Allen’s neck and face.

It is shown by the testimony of the boys who were in the room that the acid was thrown by William Currie, Jr., who, they say, was a mere invited guest, and had not then been initiated into the mysteries of ' the club. Proof that it was thrown . by Currie is confirmed, it is claimed, by the fact that some of the acid fell on Currie, and on Stearns who was immediately behind him when it was poured from the second or third floor on the fleeing Allen.

It is shown that several bottles were brought up in that room in which water was kept for drinking purposes, where lunches or meals were occasionally eaten by members of the club. These bottles, it is claimed by defendants, were all used as containers for water, with the exception of the bottle in which this acid was kept.

It is claimed by the boys of the club that this acid had been kept in that bottle for use in a radio battery they had up there. These booties it is shown were ranged on a shelf in the room with no mark whatsoever on this bottle that contained the acid. The fact is, that the bot-tole of acid stood in the middle of the row and that the acid it contained was not distinguishable from the water in the other bottles.

If these boys had been mere children such carelessness would, perhaps, be probable, but for high school students, ranging in age from sixteen to eighteen, to permit this bottle of poisonous acid to remain there undistinguishable by any label or other mark, seems to us incredible. This conclusion is emphasized by the fact that Currie, their invited guest as claimed, was not warned of the danger that lurked in this bottle of acid which defendants contend had been placed side by side with the bottles that were used for drinking purposes. Such conduct is not consonant with the ordinary rules of conduct in young men of that age.

There is another strange circumstance about these innocent appearing bottles that were permitted to sit in a room without designation or marks to distinguish one from the other. The fact is, that not a single one, as testified to by a member of the club, had a stopper. This was certainly a peculiar fact. That the bottles were on the shelf that night, there seems to be no doubt; that not a single one had a stopper, not even the one with the deadly poison, is suggestive and cannot be accounted for unless there was a design or purpose in permitting such a condition of affairs in the room in which the members enjoyed their convivialities, including Currie, their pretended invited and innocent guest.

As we proceed in the analysis of this evidence, we believe the facts will reveal the reason why these bottles, including the one containing the acid, were left open. The evidence shows that the very moment the noise on the stairway or near the door was heard by the - boys in the room, the lights were turned out, and that each, if not all of the six boys rushed out together, grabbed one of the bottles and chased the intruders down the stairways of the building.

Robert Stearns, one of the boys who testified in the case, admitted that their meetings had been previously interrupted by intruders who had entered the building. No doubt, it was determined that these intruders had to be taught a lesson for entering the building and thus to invade the privacy of the association. The bottle of acid was kept evidently in readiness to effect the contemplated correction. If not so, how is it possible to account for the fact that immediately upon hearing the noise, the light was turned down and every one of the six boys including the pretended invitee, should by common concert of action grab a bottle and pursue the invaders? If they had not known that these bottles were uncorked is it rational to believe that some investigation would not have been made to ascertain that fact before they rushed out with the bottles in hand and which they used only and solely for the purpose of pouring their contents on the boys who had taken to their heels?

Cbunsel for defendants refer to the prehistoric days of the cave man in support of their contention that on sudden attack, even men of mature years will, in . the exercise of their natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights. This is unquestionably true. It is, however, known that when men undertake to defend themselves under such circumstances, force is used to repulse the attack or the danger, if it is believed there is any. If the boys in that room had really acted under the belief that they were threatened with bodily harm or such like, how is it possible to understand that to repel such an attack, bottles which they thought contained water would be used for that purpose? We do not believe that.

The proof shows that there was perfect unity of action, not only in the grabbing of the bottles, but in the emptying of them on the intruders. Is it not singular and really unbelievable that by one common impulse those six boys or most of them should each grab a bottle of water to throw on the intruders, including Currie the pretended invited guest, who used a bottle claiming he thought they all contained water, as he had not been apprised that one had the poisonous fluid?

There is no question that the other boys knew that this acid was kept in one of these bottles, and still they rushed out with the bottles they had suddenly picked from the shelf, and threw or attempted to throw their contents on the intruders. Is it possible to believe that unless they were bent on mischief that these containers would have thus been emptied on those they were pursuing?

Currie was asked if the question had not been propounded to him as to which of the boys had thrown the acid, and that his reply was: “You would Think I am a fool if I told you.” He would not deny that he made this statement in answer to the question which was thus propounded to him. The fact is, he admitted that he could have said what he was charged with stating in reference to that question. If he had innocently and unknowingly thrown this acid, as he now claims, he certainly would, when questioned immediately after the occurrence, have admitted that he had thrown the acid on Allen with accompanying expressions of regret that would be expected from any normal man under such circumstances. Instead of doing this, he says: “You would think I am a fool if I told you.” We accept this statement as his answer, as other witnesses swore that he made it, and this he does not deny and in. fact admits that he might have made. We conclude that he knew, as it was known to the others, that this acid was in one of the bottles standing on the shelf, and in concert with the others, grabbed a bottle for the purpose of throwing whatever was in that container on whomsoever it might be that had come into the hall near the doorway of the room where the club was having its meeting.

Robert Stearns, a witness, and one of the boys who was in that room, admits he also grabbed a bottle, followed the fleeing intruders, but says his bottle contained water. He was asked if he had not told Bert Jordan, one. of the boys, that Marion Roberts should not have done that, the question and answer having reference to the throwing of. the acid. The question was also propounded to him as to whether he had not asked one of Willie Allen’s companions if any of “you fellows had got burned.” His answer was at first, that he did not remember if he had given such answers to these inquiries, but he finally said he would neither deny or affirm that he had or had not.

Collier and Bowman, two of Allen’s companions, both say that Stearns had asked if anybody had been burned. The unsatisfactory testimony of Stearns on this question leaves no doubt in our minds that he had made that remark. Stearns and likewise the other boys in that room, including Currie, knew that there was a bottle on that shelf containing poisonous acid, which was thrown on Allen with the intention of inflicing an injury on whomsoever had appeared in that hallway. The act was not directed against Allen personally, as they did not know who had entered the building, but their purpose was to castigate or punish whomsoever these intruders might be.

It is shown that on the night of the occurrence Willie Allen, on being questioned by the police officers, said that he was sitting outside of the building when the acid was thrown on him. He admitted as a witness that he had made this statement, and that it was not true. His reason for making this statement, he says, was that he did hot want these boys to get into trouble, or to avoid the publicity of a trial in the police courts, and that he did not then think “it would be as bad as it was.” In making that statement, Allen could not have been impelled by a desire to deceive in order to gain any advantage or benefit for himself or any other individual. He could have no corrupt motive, and was actuated, we think, by some fancied fear due to his youth or inexperience. However, this máy be, the fact remains that the acid was poured on him by Currie, not while he was outside the building, but during his flight down the stairway. That is unquestionably true and his statement that he was outside the building, cannot affect the case.

Counsel for defendants say in their brief:

“In a word it all gets back to the same point that to show any culpability (either by negligence or otherwise) the plaintiff must show that these sons of the defendants agreed together to do certain things and that in the absence of such showing there was neither conspiracy nor culpable negligence.”.

Counsel for defendants admit as an obvious proposition that conspiracy can be proved by circumstantial evidence, and as they say properly “usually must be proved that way for the reason that there is seldom any testimony of the conversations taking place between conspirators.”

In this case there was no conversation proved by which a conspiracy could be established, but the facts and circumstances of the case hereinabove analyzed, show that a plan had been pre-arranged between the sons of these defendants to chastise any intruder that might disturb their meetings, and in the way it was accomplished in this case. If not pre-arranged, these boys were- all aware of the fact that this bottle of acid was on that shelf, and when they realized that intruders were in the hallway, by a combination or a common understanding formed at that time, they rushed out in a body with bottles in hand, and in pursuance of a common purpose they attained their common object by committing the unlawful act of which plaintiff complains. This, we infer from the relation that existed between them, from the act done, and the results achieved. The act committed was the result of a conspiracy which is generally defined to be an agreement between two or more persons to do an unlawful act or an act 'which may become, by the combination, injurious to others.

The defendants are therefore liable in damages. The injuries .inflicted on Allen were severe and the pains he suffered as a result, intense. He was confined in his home for a couple of months, and was under medical attention for three months. Plaintiff is entitled to damages against defendants in the sum of $1500.00 in solido with costs of court.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; that plaintiff have judgment for the sum of fifteen hundred ($1500.00) dollars for the use and benefit of William Allen, his minor son, against William C. Currie, Robert E. Stearns, William P. Roberts, Guy Sandifur, Elbert L. Jordan and Donnie Arrighi, defendants, in solido, with legal interest from judicial demand, and costs of court.

ON APPLICATION FOR REHEARING

MOUTON, J.

In the application for rehearing, counsel for defendants say:

“Petitioners further show that this Honorable Court erred in holding that the Lion Tamers Club had been interrupted or intruded upon before this occasion. There is no evidence to this effect and it is denied by witnesses for defendants and is only attempted to be shown or suggested by questions asked by the adroit counsel for plaintiff and not by answers whatever.”

Robert E. Stearns, Jr., witness for defendants, and a member of the Lion Tamers Club, was asked the following question:

“Who was it that had molested the Lion Tamers Club at a meeting some time prior to this night?
“A. I don’t know who it was.”

This answer is certainly pregnant with the admission that the club had been previously molested.

He was again asked:

“How many times had the club been molested at its meetings in that place?
“A. I couldn’t say that either.
“Q. You couldn’t say how many times the club meetings had been molested and disturbed by outside parties coming there?
“A. No, sir.”

These answers carry no denial that the club had been molested or disturbed at times prior to the night the acid was thrown on Allen. The answers merely indicate that Stearns could not remember how often these disturbances had occurred prior to the one in question. If these answers are to be so construed as to leave it in doubt as to the previous disturbances, the question and answer following makes it clear that the meetings of the club had been previously interrupted, viz:

“Q. You had been interrupted there before, though?
“A. Well, we were just interrupted to thé extent that we heard them in the building, but they never did come up to the room, however, before.”

In our original opinion we said with reference to this feature of the evidence, that: “Robert Stearns, one of the boys who testified in the case, admitted that their meetings had been previously interrupted by intruders who had entered the building.” No comment is necessary to show that the Court had ample evidence to support that statement, and from the testimony of defendants’ own witness.

We refer to that evidence because it supports the conclusion reached by us that there had been concert of action on the part of the defendants in committing the act for which damages were allowed to plaintiff.

Counsel also say in.their application that we fell into an error in saying in our opinion that the bottle containing the sulphuric acid was “in the middle” of the water bottles, while as a matter of fact these bottles were in a different part of the room. It is possible that we fell in this inaccuracy in going over this record in our earnest effort to properly analyze the evidence so as to discover the real motive which actuated these boys in committing this unjustifiable act. Such inaccuracy is, however, of no importance, as it does not and cannot affect the material parts of the evidence upon which we have grounded our conclusions, which we find no reason to change after a re-examination of the points presented in the application.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    FALTERMAN v. PRESTENBACH
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact will be affirmed where not manifestly erroneous.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by Joseph Falterman against Sidney Prestenbach.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    Walter T. Gilmore, of Morgan City, attorney for defendant, appellant.
   LECHE, J.

The present demand is based on a bill for board, at the rate of twenty dollars per month for eleven months, and for washing or laundry at the rate of two dollars per week for fifty-two weeks, making a total of three hundred and twenty-four dollars, less a credit of fifty-five dollars, leaving a balance due of two hundred and sixty-nine dollars.

Plaintiff claims that defendant agreed to pay the rates charged for board and laundry, and that under that agreement defendant availed himself of plaintiff’s services, but now refuses to pay.

Defendant on the other hand claims that he made no such contract or agreement, but that he only agreed to pay plaintiff whatever he might deem right for his board, lodging and attention to his clothes; that he accordingly paid plaintiff at various times, sums of money ranging from five, ten and fifteen dollars for his board and lodging, except in one instance, through one Alden Martin, he paid plaintiff one hundred dollars in full satisfaction of his debt.

Plaintiff explains that the one hundred dollars paid by defendant through Alden Martin, was a balance due by defendant on a loan of six hundred dollars which plaintiff had made to him, and in this, he is to a certain extent corroborated by the deposits shown in his bank account.

The testimony of plaintiff and of his wife through whom most" of the negotiations pertaining to defendant’s board and washing were conducted, is clear and positive. They explain that the moderate amount charged for defendant’s board and lodging was because defendant, who it appears was engaged in the fish and fur business, was often away. That the price was fixed on an average, and that if defendant had been continuously boarding they would not have consented to any amount under forty or forty-five dollars per month. Plaintiff’s wife kept a memorandum of the payments in cash made by defendant, and she is positive as to the amounts for which defendant is given credit.

Defendant, on the other hand, does not remember, except in a general way, and to many questions he pleads lack of memory.

The question involved is purely "one of fact, and we see no reversible error in the conclusions reached by the District Judge.

For these reasons the judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 2359
    Second Circuit
    LIVINGOOD v. PLANTERS OIL MINERAL CO., INC.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 340, 342, 345, 352.
    The testimony of one of the directors of a corporation tending to show that the resolution on the minute book was not correct will not overcome the presumption supported by the testimony of plaintiff, secretary and also director of the corporation, that the resolution was correctly transcribed.

      2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact will not be disturbed unless there is manifest error. The shoeing of the conflicting testimony is 'not sufficient.
    Appeal from the First Judicial District .Court, Parish of Caddo.
    Action by W. E. Livingood against Planters Oil Mineral Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant appellant.
   WEBB, J.

The plaintiff, W. E. Livingood, secretary and treasurer of the defendant, Planters Oil Mineral Company, Inc., a corporation, obtained judgment against the corporation for salary beginning from' May 1, 1922, to July 1, 1924, and the defendant appeals.

On trial the plaintiff offered the minutes of the board of directors showing that the salary claimed by him had been fixed by the directors, and he also showed by the minutes of subsequent meetings that the minutes showing the allowance of salary had been read and approved by the board of directors and' plaintiff testified as to the correctness of the minutes, in which he was supported by the testimony of one of the directors who had attended the meeting at which the minutes of previous meetings were read and approved; and the only defense interposed (which was by way of introducing parol testimony on the trial) was evidence tending to show that the minutes were not correct in that the resolution which was passed by the board of directors provided for the payment of a salary only on the happening of certain conditions.

While there was some conflict in the testimony as to the wording of the resolution in which plaintiff’s salary was fixed, and as to whether the minutes of the meeting as shown by the transcript from the minute book was in accord with the resolution offered, and passed at the meeting, yet the presumption is that the minutes as transcribed on the minute book were correct, and the minutes of the subsequent meeting showing that such minutes had been read and approved, and the correctness of the minutes being supported by the testimony of the plaintiff and one of the directors who was present when the minutes were read and approved, we do not think the testimony of one of the directors tending to show that the resolution as transcribed on the minute book was not correct overcame the presumption, supported as it was by the testimony of the plaintiff, secretary and one of the directors.

Besides the director who testified as to the incorrectness of the minutes as transcribed had severed his connection in that respect with the company, shortly after the resolution in question had been passed, and while his testimony proved that there had been some discussion of a resolution differing from that transcribed on the minutes, he did not undertake to state what the resolution was further than by reference to some notations which had been made by one of the directors who was present at the meeting.

“On appeal in cases involving only issues of fact, findings of the trial court will not be disturbed, unless manifest error is pointed out, and showing of conflicting testimony is not sufficient.”

Hanton vs. Railway Co., 124 La. 562, 62 So. 544.

Winn vs. Strickland, 151 La. 235, 91 So. 719.

Wall vs. Dudley, 152 La. 911, 94 So. 441.

Grau vs. Consolidated D. & Mfg. Co., 162 La. 205, 110 So. 202.

The judgment appealed from is therefore affirmed.


author: ODOM, J.

text:
    No. 3038
    Second Circuit
    VIDALIA BANK & TRUST COMPANY v. L. K. & E. M. PURCELL, CLARK, Third Opponent.
    (February 3, 1928. Opinion and Decree.)

      (.Syllabus by the Editor)

    1. Louisiana Digest — Mortgages—Par. 36, 37; Laws — Par. 26, 28.
    Act No. 169 of 1914, which provides that no mortgage on rural real estate shall cover or affect the live stock thereon unless such stock is especially mortgaged in the act, is constitutional because it embraces one object, namely, to regulate the mortgage of live stock upon rural real estate.
    2. Louisiana Digest — Mortgages—Par. 36, 37; Laws — Par. 26, 28.
    Act No. 169 of 1914, which provides that no mortgage on rural real estate shall cover or affect the live stock thereon unless such stock is especially mortgaged in the act, is constitutional because the objects are properly expressed in the title which sufficiently indicates the general purpose of the law without specifying each provision thereon and does not mislead or take one by surprise.
    3.Louisiana Digest — Privileges—Par. 3, 6; Execution — Par. 54, 55.
    Under Code of Practice Article 722, the mere act of seizure invests the plaintiff with a privilege on the property seized which entitles it to be paid by preference over other creditors.
    Appeal from the Tenth Judicial District Court, Parish of Concordia. Hon. N. M. Calhoun, Judge.
    Action by Vidalia Bank & Trust Company against L. K. and E. M. Purcell, R. T. Clark, third opponent.
    There was judgment for plaintiff and third opponent appealed.
    Judgment affirmed.
    Dale, Dale & Dale, of Vidalia, attorneys for plaintiff, appellee.
    Hugh Tullis, of Vidalia; Engle & Laub, attorneys for third opponent, appellant.
   ODOM, J.

In 1917 R. T. Clark sold the Whitehall plantation in Concordia Parish to Thomas L. Cagle. The purchase price was not all paid by Cagle, and to secure the balance due Clark retained and Cagle granted a vendor’s lien and special mortgage on the plantation and immovables by destination for $65,000.00.

The mortgage was duly recorded in the mortgage records of Concordia Parish on October 20, 1917.

Subsequently Thomas L. Cagle sold said plantation to L. K. and E. M. Purcell, the same being sold subject to the vendor’s lien and special mortgage of R. T Clark. Subsequent to their purchase the Messrs. Purcell took possession of the plantation, and for its cultivation, use and improvement placed thereon thirty-seven head of livestock, consisting of mules and horses.

On December 15, 1923, the Vidalia Bank & Trust Company obtained judgment against the Messrs. Purcell for something like $29,000.00. It procured the issuance of a writ of fi. fa. thereunder and the sheriff seized and advertised for sale the livestock which the Purcells had placed upon the said plantation for its use, improvement and cultivation.

R. T. Clark, the original vendor, whose claim for the balance of the purchase price of the land had not been paid, intervened in the suit of the bank versus the Purcells and claimed the proceeds of the sale of the livestock, on the ground that said livestock, having been placed on the plantation for its service and improvement, were immovable by destination under Article 468 of the Civil Code and were subject to his vendor’s lien and special mortgage and that his privilege therefore primed that of the seizing creditor.

The horses and mules were sold for $1490.00, which amount was held by order of Court subject to its further orders.

On final trial the Court rejected intervenor’s demands and ordered the proceeds paid to the bank.

Clark, the intervenor, appealed.

OPINION

The mules and horses seized by the bank under its judgment were admittedly placed on the plantation for its service and improvement, but subsequent to the date on which Clark, the intervenor, sold to Cagle, so that they were not, of course, described and included in Clark’s mortgage.

Clark’s contention is that under Civil Code, Article 468, the livestock, when placed upon the plantation for its service and improvement, became at once immovable by destination, a part of the realty, and as they were on the plantation whéñ seized and were then owned by the owners of the land, they were subject to his mortgage, as much so as the land itself, under Article 468 of the Civil Code, which provides that things placed by the owner upon a tract of land for its service and improvement become immovable by destination.

This, we understand, would be conceded by counsel for plaintiff bank if it were not for Act No. 169'of 1914 which, in specific terms, provides — ■

“That no mortgage upon Rural Real Estate shall cover, or affect the livestock upon the said real estate, or that may thereafter be placed thereon, unless the said livestock be specially mortgaged in the act of mortgage, in which case the animals so hypothecated shall be described as near as may be, by kind, age, color, marks, brand and such other indicia by which livestock is identified.”

Counsel for Clark, on the other hand, concede that if Act No. 169 of 1914 be valid legislation, he has no mortgage or lien on the livestock seized by the bank, as they were not on the land when his mortgage was granted and were not, of course, described in the act.

But counsel for intervenor contend that the act referred to is unconstitutional for two reasons:

1st. Because it embraces more than one object; and,

2nd. Because these objects are not expressed in the title, in contravention of Article 31 of the Constitution of 1913, which provides that:

“Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title.”

The question presented, therefore, is whether Act No. 169 of 1914 is constitutional.

The title of the act in question reads as follows:

“To regulate the mortgaging of Live Stock upon Rural Real Estate.”

The act contains three sections. Section 1 provides that—

“No mortgage upon Rural Real Estate shall cover, or affect the livestock upon the said real estate, or that may thereafter he placed thereon, unless the said livestock he specially mortgaged in the act of mortgage, in which case the animals so hypothecated shall be described, etc.”

Section 2 provides that—

“* * * the exemptions in the case of livestock mortgaged upon Rural Real Estate shall be the same as set forth in Act No. 65 of 1912.”

And Section 3 repeals all laws in conflict with the act.

It is clear enough, we think, that the act has but one purpose or object, that being, as expressed in the title, to “regulate the mortgaging of livestock upon rural real estate.”

Section 1 prescribes wjiat the act of mortgage, in order to affect livestock, shall contain — the livestock shall be “specifically mortgaged in the act,” and the “animals so hypothecated shall be described as near as may be by kind, age, color,” etc. — otherwise the act shall have no effect upon them.

That part of the act and that part alone, counsel contend, is covered by the title, and they contend that the act is open to the objection of duplicity because in section 2 it provides that the exemptions in the ease of livestock mortgaged upon rural real estate shall be the same as set forth in Act No. 65 of 1912; that in said section 2 there is set forth another purpose or object which is not mentioned in or suggested by the title.

Counsel, we think, are in error.

In carrying out the purpose of the act to regulate the mortgaging of livestock on rural real estate, the act, in section 2, does no more than restrict the operation or effect of the mortgage to those animals which are not exempt from seizure. It is stated that the exemption shall be the same as those specified in Act No. 65 of 1912, the chattel mortgage law then’ in force. The exemptions mentioned in the latter act are the same as those in Article 244 of the Constitution. The act does not create exemptions but merely recognizes those specified in the Constitution.

The word “regulate” used in the title of the act, means to adjust or control by rule: “to direct by rule or restriction” ^-(Webster).

One of the synonyms of the word “regulate” is “govern.” To “regulate” means to “govern by or subject to certain rules or restrictions”; to control, restrict or direct; “to restrict with-in certain rules and limitations.” 34 Cyc. 1029.

Section 2 of the act does nothing more than restrict or limit the effect or application of the mortgage to certain animals. To make such restriction is as much a “regulation” of the “mortgaging of livestock on rural real estate” as to prescribe that the animals mortgaged should be specifically described in the act.

The act directs the manner or method by which a valid mortgage may be obtained on livestock on rural real estate, and the restriction in section 2 is germane to that point.

Suppose the legislator, instead of adding section 2 had written in section 1 the proviso that the mortgage should not apply to those animals exempted from seizure under Article 244 of the Constitution. Would it then be argued that the act is amenable to objection of duplicity?

The object of a law is the aim or purpose of the enactment. The title of a legislative act need not be a synopsis of its contents. I"t is sufficient if it indicates the general purpose of the law without specifying each provision thereof. American Printing House for the Blind vs. Dupuy, 37 La. Ann. 188; St. Anna’s Asylum vs. Parker, 109 La. 601, 33 So. 613; Compagnie Francaise, etc., vs. State Board of Health, 51 La. Ann. 657, 25 So. 591.

Where the title of an act does not mislead or is not such as to take one by surprise, it may be good notwithstanding it is not as ample as it might be. Thornhill vs. Wear, 131 La. 479, 59 So. 909.

The purpose of the constitutional provision that a law shall have but one object and that expressed in the title, is not to embarrass legislation but only to prevent the joining in one act purely unrelated matters. If all the _ parts of the act are reasonably related to one general object, the act. is not amenable to the objection of plurality.

“An act whose title states one object and a number of other things germane to this object and connected therewith is not a violation of this provision.”
State vs. Poto, 134 La. 154, 63 So. 859.
Thomas vs. School Directors, 136 La. 499, 67 So. 345.
Lacoste vs. Department of Conservation, 151 La. 917, 92 So. 381.
State vs. Mauvezin, 136 La. 746, 67 So. 816.

There is nothing in Act No. 169 of 1914 which is not germane to the object and purpose thereof, which, as stated in the title, is to “regulate the mortgaging of livestock on rural real estate.”

The act is constitutional.

But suppose it to be conceded that the title of the act is not broad enough to cover section 2 thereof, it does not necessarily follow that the entire act is unconstitutional for that reason. At most, under that view, only section 2 would be void. Section 1 of the act is admittedly covered by the title, so that if section 2 be held void, section 1 could stand, for section 1 is in no way dependent upon section 2. Section 2 of the act does no more than recognize those exemptions specifically provided for in the Constitution.

The general rule is that where an act is broader than its title, the parts of which are indicated in the title must stand and that only those parts not so indicated will fall, unless they are so interwoven with and dependent upon each other that they cannot be separated.

State vs. Goff, 106 La. 270, 30 So. 844.

State vs. Kohnke, 109 La. 838, 33 So. 793.

State vs. Ferguson, 104 La. 253, 28 So. 917.

Mouton vs. Judge, 49 La. Ann. 1535, 22 So. 761.

State vs. Crowley, 33 La. Ann. 782.

State vs. Exnicios, 33 La. Ann. 253.

Williams vs. Payson, 14 La. Ann. 7.

Section 1 of said act is not so interwoven with and dependent upon section 2 that the two cannot be separated. To the contrary, section 1 can stand alone and is within itself a complete legislative act, capable of being enforced.

Act No. 169 of 1914 being constitutional, it follows, necessarily, that intervenor has no mortgage on the livestock seized by plaintiff, for such livestock are not mentioned in his special mortgage, and the act specifically provides that' — ■

“* * * no mortgage upon Rural Real rotate shall cover, or affect the livestock upon the said real estate, or that may thereafter be placed thereon, unless the said livestock be specially mortgaged in the act of mortgage.”

Aside from the general law which makes the property of the debtor the common pledge of his creditors, intervenor had no claim at all upon the property seized by the plaintiff. Plaintiff’s seizure of the property was valid. By the mere act of such s'éizure it was invested with a privilege on the property seized which entitled it to be paid by preference over other creditors. C. P. 722.

Having reached the conclusion that Act No. 169 of 1914 is valid, we must, of course, give it effect. Therefore a discussion of the other points raised by counsel in argument and in brief is unnecessary.

The judgment appealed from is therefore affirmed with costs.


text:
    No. -
    First Circuit
    DAVIS v. HILL
    (March 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Elections by the People — Par. 41, 76, 85. ■
    Under Section 29 of Article VII of the Constitution of 1921, in a contest of primary election for Police Jury in which the emoluments cannot exceed $2,000, the Court of Appeal has appellate jurisdiction.
    2. Louisiana Digest — Elections by the People — Par. 36, 42.
    A primary election will not be set aside for mere irregularities and illegalities, nor for negligence and improper conduct of the election officers, unless it is shown that a sufficient number of voters were deprived of their votes to have changed the result.
    3. Louisiana Digest — Elections by the People — Par. 23, 36, 38, 42.
    In a contest of a primary election, a collateral attack on the right of certain electors to be registered cannot be entertained, because it should have been made directly against those persons.
    4. Louisiana Digest — Elections by the People — Par. 10, 23, 39, 41, 42.
    In a contest of a primary election where it is claimed that certain electors had not paid poll taxes for two preceding years, there being no evidence in the record, the case will be remanded for the purpose of obtaining such evidence.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by J. H. Davis against L. M. Hill.
    There was judgment for defendant and plaintiff appealed.
    Judgment overruling exception no cause of action and remanding the case for further evidence.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellant.
    S.I. Foster, of Leesville, attorney for defendant, appellee.
   LECHE, J.

Plaintiff contests the election of defendant, who was declared the nominee of the Democratic Party for the office of police juror, for the fifth ward of the Parish of Vernon, at the primary election held on February 28, 1928.

Plaintiff alleges that defendant was declared to have been so nominated by a majority of one vote.

The grounds upon which plaintiff contests the election are in substance, that at the Cravens poll, precinct five of ward five, the Commissioners’ returns show that plaintiff received 37 votes and defendant 47 votes. That three illegal votes were cast in said box for defendant, one by Alice Thompson, another by Arthur Pelt, and the third by Barbara Bass; that said votes were illegal for the reason that Alice Thompson was under the age of 21 years, Arthur Pelt under the age of 21, and Barbara Bass, although it was sworn by the latter’s mother that she was over 21 years of age, did not have poll tax receipts for the two years preceding the election, although said Barbara Bass had been 21 years of age during said two preceding years.

Plaintiff further charges that at said Cravens Poll, the election was held in an open room unprovided with booths or screens, and therefore, that the voters did not cast secret ballots, there being at some times, as many as fifteen persons in the room. That the box should be thrown out and the votes therein should not be counted, for being illegal.

Plaintiff further charges that at the Pit-kin precinct, where plaintiff received 85 votes and defendant received 141 votes, the box should also have been thrown out, and the votes not computed for the reason that there were no booths in the voting place, that there was nothing to obscure the view, or to keep the returning officer who remained in the room the biggest portion of the time, from seeing how the voters voted, and that for this reason all the votes cast were illegal and should not be counted.

Plaintiff then proceeds to ask that the ballot box used at the Cravens precinct be ordered to be produced in Court, and that the votes therein contained be counted in open court, and that the ballots thus cast be declared illegal, null and void and not tabulated as part of the returns in said election.

Plaintiff finally prays that he be declared and recognized as the successful candidate for the nomination as Democratic candidate for the office of police juror of the fifth ward of Vernon Parish.

Defendant filed an exception of no cause of action to plaintiff’s petition, and from the judgment maintaining that exception, plaintiff has appealed.

In this Court, defendant filed a motion to dismiss on the ground that the petition did not disclose that the Court was vested with jurisdiction, in this, that plaintiff does not allege the amount of emoluments attached to the office in contest. Any court in this State is bound to take cognizance of the fact that the office of police juror is not one where the emoluments can exceed two thousand dollars, and it would only be on the theory that such emoluments exceed two thousand dollars that we could dismiss the apipeal. If such emoluments do not exceed two thousand dollars, or if there should be no emolument at all attached to that office, we are vested with jurisdiction under Section 29 of Article VII of the Constitution.

All the grounds urged by plaintif in his petition as in substance above recited, with the exception of one ground to which we will later advert, amount to mere irregularities, which, under the primary election law, and the jurisprudence as we understand it, are not sufficient to void and annul the results of said election as proclaimed by the governing authorities. An election will not be set aside for mere irregularities and illegalities, nor for negligence and improper conduct of the election officers, unless it is shown that a sufficient number of voters were deprived of their vote to have changed the result. Womack vs. Nettles, 155 La. 359, 99 South. 290, and authorities therein cited.

Pretqrmitting the apparent contradictory allegations of plaintiff’s petition, which are not made in the alternative, there is however one ground alleged in plaintiff’s petition which deserves serious consideration, and which if true, will affect the returns of the political governing authority as appears from the allegations of the petition. . It is said that defendant was returned as the nominee, in the primary election, for having received a majority of one vote. Of the three votes challenged at the Pitkin Poll, that of Barbara Bass is claimed to have been cast for defendant and to have been permitted to be east and counted, notwithstanding the fact that Barbara Bass, although liable for poll taxes for the years 1926 and 1927, had not paid poll taxes for those years. If that be true, then the vote of Barbara Bass should be deducted from the number of votes cast for defendant and the result of such deduction would leave plaintiff and defendant with an equal number of votes, and leave neither one of them as chosen by a majority of the voters as Democratic nominee for the office of police juror.

The attack on the votes of Alice Thompson and Arthur Pelt is an attack on their right to be registered, and cannot be entertained for the reason that such collateral attack cannot be made in this proceeding, but should have been made directly and contradictorily with these persons. Perez vs. Cognevitch, 156 La. 331, 100 South. 444. The law, as we understand it, is that a registered vote may only be challenged for causes that have arisen since the registration or for causes that may be entirely disconnected with the qualifications required for registration.

Our conclusion is that defendant’s exception of no cause of action should be overruled and that the. cause should be remanded solely for the purpose of ascertaining how Barbara Bass voted, whether Barbara Bass was, at the time the primary election was held on February 28, 1928, liable for poll taxes for the two preceding years 1926 and 1927, and whether Barbara Bass, if liable, had paid such poll taxes, and it is accordingly so ordered.


author: MOUTON, J.

text:
    No. -
    First Circuit
    WATKINS CO. v. BROWN ET ALS.
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)
    (April 9, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 4, 97, 99.
    An agreement which gives the obligor the right to terminate the contract at an earlier date than that fixed for its expiration does not abrogate the obligation on which it rests and is not a potestative condition.
    (See Civil Code, Articles 2024 and 2034— Editor’s Note.)
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by J. R. Watkins Company against Robert Lee Brown, et als.
    There was judgment for. defendant and plaintiff appealed.
    Judgment reversed and case remanded for new trial.
    Lindsay McDougall, of Covington, attorney for plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, apipellee.
   MOUTON, J.

This suit is on a written contract against Brown as principal, Bond and Vernon, as sureties. The suit was dismissed on an exception of no cause of action. The suretyship was given for a further advance of goods to the principal, and an extension of time on an accrued debt of plaintiff company amounting to $1,372.00. This was a sufficient consideration for the guarantee. Peterson vs. Rabito, et al., 114 So. 354.

The exception relies mainly on the decision by this Court in the case of the same plaintiff company vs. Russell, and on the contention that the suretyship is null because it contains a potestative condition. In the Russell case the demand against the sureties was rejected because the contract had been made in violation of the Public Policy of the State, or of a prohibitory law. In the petition of plaintiff which must be taken as true, there is nothing to indicate that its demand is susceptible to such legal objections so as to authorize its dismissal under the exception. Such issues may become important factors on the merits, but are not pertinent to the present appeal.

In the contract signed by the sureties the right is given plaintiff company to terminate the contract at a date earlier than the time fixed for its expiration, but does not abrogate the obligation on which it rests. It simply gave plaintiff, at its option, the right to advance the time of payment, the principal and his sureties remaining bound, however, to pay the debt whatever the balance might be. This agreement was not null because affected with a ipotestative condition. Even if the agreement was vitiated by a potestative condition because the debt could be made, collectible at the will of the plaintiff company, it could not affect plaintiff, the obligor, and could apply only to defendants, obligees. Conques vs. Andurs et als., 162 La. 73, 110 So. 93. The exception was erroneously maintained.

It is therefore ordered and decreed that the judgment be avoided and reversed, that the exception he and is hereby overruled, and the case be remanded for trial according to law.


author: LECHE, J. PER CURIAM:

text:
    No. -
    First Circuit
    INVESTORS MORTGAGE CO. v. PREJEAN
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Judgment amended and Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sheriffs and Constables — Par. 13, 16.
    Under Act 203 of 1898, the commission which the sheriff received for his services for making seizure and sale of property under execution is only due on the amount which is collected and paid over to the seizing creditor; and, therefore, where the seizing creditor is the purchaser, the sheriff cannot collect on that part of the sale price which is compensated hy the debt due the seizing creditor.
    2. Louisiana Digest — Appeal—Par. 759.
    Clerical errors are corrected by Appellate Courts without a rehearing.
    Appeal from the Parish of Assumption. Hon. Sam A. LeBlane, Judge.
    Action by Investors Mortgage Co. against Sylvere Prejean.
    There was judgment for plaintiff and defendant appealed.
    Judgment' amended and affirmed.
    Gilbert & Gianelloni, of Napoleonville, attorneys for plaintiff, appellee.
    Howell, Wortham & Howell, of Donaldsonville, attorneys for defendant in rule, appellant.
   LECHE, J.

Plaintiff obtained a writ of seizure and sale under which it caused property of the defendant to be seized, and to be sold at public auction. The property was sold for Forty-seven thousand dollars, and of this amount, the purchaser retained in his hands Forty-four thousand five hundred and twelve dollars to satisfy two anterior and superior mortgages, and he therefore paid to the Sheriff, the balance of Two thousand four hundred and eighty-eight dollars for taxes and costs, and to satisfy pro tanto, the amount of Six thousand twenty-nine and 40-100 dollars called for by the writ of seizure and sale.

In this case the purchaser happens to be the seizing creditor, so that, in fact, the formality of paying to the Sheriff the amount collected in part satisfaction of the writ would have been vain and, useless, and that amount was therefore retained by the purchaser.

The question in the case is the amount of the commission which the Sheriff is entitled to receive for his services under the fee bill as fixed by Act 203, p. 485, of 1898.

Section 1 of that Act provides that the Sheriffs throughout the State * * * shall be entitled to. demand and receive the following, fees * * * and no more in all civil matters, to-wit:

“* * * jior making an actual levy or seizure of property under execution or order of seizure and sale without sale, one dollar ($1.00j; and two per cent on the first five hundred dollars and one per cent on any excess of said amount collected and paid over to the party causing the execution or order of seizure and sale to issue * * * etc. For collecting money on execution or order of seizure and sale, without either seizure or sale, two per cent on the first Five hundred dollars and one per cent on any excess of said sum.”

The language of the statute is clear to the effect that the commission is only due on the amount which is collected and which is paid over to the seizing creditor.

In the present case the amount actually collected is Two thousand four hundred and eighty-eight dollars and the commission due the Sheriff is therefore two per cent on the first Five hundred dollars, or Ten dollars, and one per cent on the balance of Nineteen hundred and eighty-eight dollars, or Nineteen dollars and eighty-eight cents, making a total of Twenty-nine and 88-100 dollars.

This same question was lately presented to this Court in the case of Investors Mortgage Co. vs. Ernest Theriot, et als., from the Parish of St. Mary, and decided on January 5, 1928.

It is therefore ordered that the judgment herein be amended by reducing the amount allowed the Sheriff as commission, from Four hundred sixty-two and 21-100 dollars to Nineteen and 88-100 dollars, and as thus amended that the same be affirmed, plaintiff in rule to pay all costs.

PER CURIAM:

On application for rehearing, plaintiff’s counsel calls our attention to the fact that the judgment herein rendered by this Court in favor of the ¡plaintiff, decrees a larger sum to the Sheriff than is justified by the reasons assigned in the opinion. In this plaintiff is right, and the error is merely 'clerical and will be corrected without granting a rehearing.

Dillon vs. Freville, 132 La. 1012, 62 South. 125.

Wells vs. Johnson, 122 La. 385, 47 South. 690.

Kinder vs. Trotti, 130 La. 361, 57 South. 1005.

Succession of Pierce, 119 La. 727, 44 South. 446.

Higginbotham vs. Daigle, 120 La. 470, 45 South. 392.

The amount actually collected and paid over to the seizing creditor, was seven hundred seventy-eight and 39-100 dollars. The Sheriff’s commission is therefore only twelve and 79-100 dollars, instead of Nineteen arid 88-100 dollars, and our decree should accordingly be corrected and amended.

Our former judgment is therefore amended by reducing the commission to which the Sheriff is entitled, from Nineteen and 88-100 dollars to Twelve and 79-100 dol-’ lars, and as thus amended, it is reinstated and made final, and the rehearing herein applied for is refused.


text:
    No. -
    First Circuit
    LEWIS v. RALPH
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 518, 530.
    A motion to dismiss appeal on ground of incomplete record will be overruled where the record appears to be complete.
    ON THE MERITS
    2. Louisiana Digest — Appeal—Par. 625.
    Where the finding of the trial court as to matters of fact, namely, that a second contract for the purchase of a farm had been made after the first contract, reducing the purchase price, not being manifestly erroneous, is affirmed.
    3. Louisiana Digest — Injunction—Par. 97; Attorneys — Par. 59.
    $50 damages for attorneys’ fees are allowed for dissolution of illegal injunction.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Grover O. Lewis against Mrs. Ruth Ralph.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Matt J. Allen, of Amite, attorney for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   ON MOTION TO DISMISS

LECHE, J.

Plaintiff and appellee moves to dismiss this appeal on the ground that the record is incomplete, in .this that the note of evidence is not therein contained. But the record, as received in this Court, does not contain the note of evidence, and appears to he complete. Therefore the ground upon which the motion is based is not sustained, and the motion to dismiss must be, and is overruled.

ON THE MERITS

Plaintiff obtained a writ of seizure and sale on a note of $333.34 made and subscribed by defendant, representing the balance of the purchase price of a farm situated in the Parish of Tangipahoa. Defendant opposes the execution of said writ and prays that the plaintiff and the Sheriff be enjoined from proceeding to sell her property. The grounds upon which she bases her opposition and her prayer for an injunction, are substantially as follows:

That on September 18, 1922, she signed a contract in which plaintiff bound himself to sell and in which she bound her'self to buy a farm in the Parish of Tangipahoa for the price of $3,500, that there was at the time handed to her a list of movables situated on the farm, but that she consented at the request of plaintiff, not to enumerate these movables in the act of sale which was subsequently passed. That when delivery was máde to her, she realized that plaintiff had acted fraudulently, that the movables enumerated on said list had been removed and she then avers that she was duped, and in her petition she specifies the items and articles promised but not delivered to her, viz: pecans, cotton and corn ungathered, chickens, one cow and agricultural implements, which she alleges to have been worth $1,350, for which amount she prays for judgment in reconvention.

The District Court dismissed her opposition and refused to grant the injunction prayed for, and she has appealed.

On the trial of the ease, the evidence submitted shows that a preliminary contract for the sale of the farm was drawn up by A. B. Graves, a real estate agent, some time in July or August, 1922, and that at that time, Graves handed to defendant a written list of articles on the farm, the value of which is pleaded in reconvention by the defendant in this proceeding. That defendant either refused to accept or defaulted in the execution of said contract, which fixed the price of the farm at Five thousand dollars. It appears further that subsequently, on September 18, 1922, another preliminary contract was signed by defendant, in which the price of the farm was fixed at Thirty-five hundred dollars and that contract was carried out by the passage of an act of sale from plaintiff to defendant on October 3, 1922. The note on which the writ of seizure and sale was issued in this case, is identified with that act.

After defendant defaulted under the first or preliminary contract, signed in July or August, 1922, plaintiff proceeded to gather the pecans and the cotton on the farm, to use and consume the other articles on the list,' but did not after September 18th, the date of the second preliminary contract, remove or use any article or movable attached to the farm, except part of the corn which was used as feed for the cows and chickens.

It appears that the list of articles for which defendant prays for judgment in reconvention, was intended as' part of the first contract in which the purchase price of the farm was fixed at Five thousand dollars, but had no connection with the second contract which reduced the price of the farm to Thirty-five hundred dollars; that there was no false representation made by plaintiff in drawing up the second contract and that plaintiff delivered to defendant all that he could or intended to sell, the farm and its accessories as it stood on September 18, 1922.

The evidence as we view it and as above recited, seems to sustain the correctness of the judgment of the District Court, dismissing defendant’s opposition and refusing her application for a writ of injunction. There is other testimony sustaining the decree appealed from, whereby defendant is condemned to pay Fifty dollars, damages for attorney’s fees.

For these reasons the judgment under review is affirmed.