text:
    No. 8700.
    Orleans Appeal.
    COLORED SCREWMEN’S BENEVOLENT ASSN. No. 1 OF LOUISIANA v. THOMAS P. WOODLAND, Appellant.
    (November 3, 1924, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Associations, Par. 5, 17.
    Where a Colored Benevolent Association ' votes its President an automobile without naming any price and the President purchases the car, paying ninety per cent of all money in the treasury therefor, the transaction cannot be justified as compensation supplementing the President’s salary of $10.00 per month.
    2. Louisiana Digest, Associations, Par. 5, 17; Corporations, Par. 154.
    Under such circumstances, the action of the Association is ultra vires, and the President thereof will be held liable for the return of the money paid for his automobile.
    (Civil Code, Art. 433 and 439 — Editor’s Note.)
    Appeal from Civil District Court, Parish of Orleans, Division “E”, Hon. Wynne G. Rogers, Judge.
    This is a suit to recover the cost of an automobile given the president of an association.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    E. Rightor and S. S. Goldman, attorneys for plaintiff and appellee.

      E. A. Parsons, attorney for defendant and appellant.
   WESTERFIELD, J.

The defendant was for thirteen years the president' of the plaintiff corporation, a negro benevolent association and ex officio “Walking Delegate”. As president, he received ten dollars per month and as “Walking Delegate” thirty dollars per week. During the thirteenth and last year of defendant’s incumbency, the association voted him an automobile by the adoption of the following resolution:

“Whereas, through the untiring energy and supreme and successful efforts of our most highly - honored and esteemed president, T. P. Woodland, our organization is entering a period of unprecedented prosperity, and
“Whereas, we believe Bro. Woodland is justly due our highest credit for his success in the past in our behalf and encouragement for his future activities,
“Be it resolved, that this association purchase and present to our president, T. P. Woodland, an automobile of his own selection in grateful remembrance and our heartfelt appreciation for his incalculable services herein stated.”

The defendant purchased the automobile at a cost of $1,750.00, which -was paid for in installments by the plaintiff corporation. The defendant was not re-elected and his successor caused this suit to be filed against him in the name of the corporation, claiming $1,750.00, the amount paid for the automobile, alleging the action of the association in presenting defendant with the automobile was ultra vires and contrary to the charter, constitution and by-laws of the association, and that the gift of the automobile was without consideration and an improper .diversion of the funds of the association.

The defendant contends that the automobile was given as compensation for services rendered and fully justified by the constitution and by-laws.

It is not pretended that the giving of the automobile was an act of benevolence in accord with the objects and purposes of the organization,, consequently it must be justified, if justified it can be, upon the ground that there was consideration for it. Defendant says the consideration was his long and efficient services as president.

The constitution quite unnecessarily provides that the funds of the association can only be expended for purposes specified in the constitution and by-laws. The salary of the president of the association is fixed at $10.00 per month in the following language :

“For the faithful performance of his duty he shall receive ten dollars ($10.00) per month, and such other compensation that may from time to time be fixed by the association.”

The words “and such other compensation that may from time to time be fixed by the association” are seized upon by defendant’s counsel as imparting ample authority for the action of the association or, as counsel puts it, “acting under such mandate, the association voted that the said compensation should consist of an automobile”.

We are referred to eminent lexicographers and to the standard work of Mr. Crabb on Synonyms to remind us of the distinction between the words “salary” and “compensation”, and while we applaud counsel’s zeal and thoroughness, the only difference so far as this ease is concerned, which is perceptible to us, is the difference between the payment of small sums at regular intervals and the payment of a large sum at one time for what the association gave defendant was money. Moreover, no price is mentioned in the resolution as to the cost of the automobile, and defendant settled that little detail by buying a car costing about 90% of all the money in the treasury of the corporation, including funds set aside to bury its members.

The resolution states as one of the reasons for giving the automobile, that “through the untiring energy and supreme and successful efforts of our most highly honored and esteemed president, T. P. Woodland, our organization is entering a period of unprecedented prosperity”. We are not advised as to the state of prosperity the association was accustomed to enjoy, therefore, cannot say whether the condition of the association at the time of the gift of the automobile was unprecedented or not, but .if the organization was entering any sort of .prosperity, unprecedented or otherwise, the entrance must have been like the entrance to the abode of Beezlebub and the fallen angels in Paradise Lost, “impenetrable, impaled with circling fire, yet unconsumed”, for, according to the record, the total of all cash in the treasury was $2,000.00, the sick who under the charter of the association were entitled to $7.50 per week were only getting $3.50. In fact, it would appear that nothing but the good health of the members saved the association from collapse, for a few death benefits would have been the last straw. In this situation, the president is given $1,750.00 with many fulsome phrases by a vote of 49 to 4 out of a total of 330 members. We attribute the action of the 49 to the domination of the president. In any event, it was an improper diversion of the funds of the association for which the president as the beneficiary is legally liable.

In Brown vs. DeYoung, 47 N. E. 864, it was held:

“It is undoubtedly the law that a director of a corporation is not entitled, as against non-assenting stockholders, to receive a salary, however justly earned, unless previously authorized by the by-laws of the corporation, or by resolution of the board of directors. Conceding such to be the law it is admitted that DeYoung (the officer who had received additional salary) is acountable for the excess of salary received by him over the authorized sum of $500.00 per year.”

In Danville H. & W. Ry. Co. vs. Kase, 39 Atl. 308, it was held:

“If the work (of the officer) had been preceded by a contract for reasonable compensation he would be entitled to a credit for the contract price. But up to November 9, 1871, there was no semblance of a contract. Then the board undertook by a retroactive resolution to compensate him at the rate of $15,000.00 per year from March 21, 1863, until next election. The law is settled (Loan Assn. vs. Stonemetz, 29 Pa. St. 534), that no officer of a corporation can receive any compensation for the. performance of official duties except by express contract preceding the rendering of the services.”

In Wood vs. Lost Lake Co., 23 Pac. 848, the court said:

“The appellant in this case (the officer claiming the salary) had no standing in court without proving that the compensation for the services claimed by him had been fixed by the corporation before they were rendered.”

The defendant had been paid a salary of $10.00 per month by the plaintiff corporation for thirteen years and he is suddenly given $1,750.00 for past services. Under such circumstances, there was no consideration for the gift. See Beer vs. N. Y. Life Ins. Co., 20 N. Y. Supp. 788.

The trial court awarded judgment to plaintiff as prayed for and we are convinced that it should be and it is hereby affirmed.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 8705.
    Orleans Appeal.
    PAXTON MILLER, Appellant, v. WILLIAM S. BONNER, ET AL.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Pleading, Par. 62.
    Where A, sequestering funds in the hands of B, and suing only B for an accounting as between themselves under an alleged contract of lease, makes C also a party to the suit without setting up any privity of contract as to the latter with either A or B regarding the alleged contract, an exception of no cause of action is well founded as to C.
    (Code of Practice, Art. 345 — Editor’s Note.)
    Appeal from Civil District Court for the Earish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    This is a suit in which the plaintiff claims from the Board of State Engineers an accounting regarding certain funds alleged to be due him for the lease of certain mule teams furnished. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Edrington & Edrington, attorneys for plaintiff and appellant.
    Terriberry, Rice & Young, attorneys for defendant and appellee.
   BELL, J.

This is a suit in which the plaintiff, alleging a verbal contract between himself and the Board of State Engineers, Highway Department, Parish of Pointe Coupee, claims from said board an accounting regarding certain funds alleged to be due him from the lease of certain mule teams furnished by him to said board, and to be used in the construction of a public road in the parish of Pointe Coupee. The petition sets forth that the agreement or contract provided for the payment to plaintiff for the use of said teams a per diem fee of $3.00 for each team, for every day that said teams were at work.

Further alleging that under said contract there is now due a balance of some $645.00, the petition recites that the board has refused to pay the balance due or such other sums as may be due unto petitioner, and that petitioner is advised that the said $645.00 is about to be paid by the board to one William S. Bonner. The following is alleged in paragraph 4 of the petition:

“Now your petitioner represents that William S. Bonner, a resident of this city and of full age of majority, has claimed from the Board of State Engineers, Highway Department, by virtue of a so-called agreement or 'contract, the said sum of $645.00, and that your petitioner has been informed, fears and believes that the said highway department will pay to the said William S. Bonner the said $645.00, or that much thereof as may be due your petitioner by the said State Highway Department.”

In the last paragraph of the petition, preceding the prayer, petitioner alleges that he has demanded payment from the board, through its proper agent, which payment has been refused, and that petitioner is in-formed that the money will be paid to William S. Bonner and removed from the jurisdiction of the court.

Nowhere in the petition is it shown that any privity of contract exists between William S. Bonner and petitioner or the board regarding the alleged contract, nor does it appear even from the specific allegations of paragraph 4, as above quoted, that the alleged claim of Bonner against the board is in regard to the contract sued upon. It is not alleged, on the other hand, that there was ever any contract between petitioner and William S. Bonner.

The prayer of the petition is that a writ of sequestration issue, commanding the Civil Sheriff for the Parish of Orleans to seize and take into his possession all monies in the hands of the board earned by petitioner and claimed by Bonner by virtue of work done by petitioner on the Pointe Coupee road, and, further praying that the board, through its proper officer, and Bonner be duly cited to appear and answer this petition, it is asked that there be judgment in favor of the petitioner and against the board and Bonner, ordering an accounting. There is no prayer as to which of the defendants, if either of them, is to make this accounting to petitioner. The concluding prayer of the petition is that a judgment be rendered decreeing petitioner the owner • of the sum of $645.00, in the hands of the board, also for maintenance of the writ, with costs, and for general and equitable relief.

To the foregoing petition, the only appearer' is William S. Bonner, who has filed an exception of no cause or right of action. This exception has been maintained by the judgment of the trial court, from which this appeal is taken.

For the reasons noted in our understanding of the pleadings, as above set forth, it is evident the exception is well taken, that the petition wholly lacks any allegations supporting a cause or right of action as against exceptor. The judgment appealed from is correct.

It is, therefore, ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby affirmed at appellant’s cost.


author: CLAIBORNE, J.

text:
    No. 8706.
    Orleans Appeal.
    SHELBY MILLS, INC., Appellant, v. SHEED NAMI.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Oourt.)

    1.Louisiana Digest, Sales, Par. 150.
    When an obligation is to be performed within a specified time, and the time expires without performance, default is not necessary.
    (Civil Code, Arts. 1931, 1933. Editor’s note.)
    2. Louisiana Digest, Obligations, Par. 149.
    In a contract for the sale and delivery of goods on specified future dates, the rule is that time is of the essence of the contract, and that the purchaser will not be bound to accept and pay for the goods if they are not delivered on the dates specified in the contract.
    3. Louisiana Digest, Sales; Par. 21.
    The reasonable fear that a vendor has that the purchaser will not pay for his goods may justify him in notifying the purchaser that he will not deliver the goods until they are paid for, or provision made for their payment, but' will not excuse a delay in delivery.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a damage suit for refusing to accept and pay for merchandise sold and delivered. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Richard B. Montgomery, attorney for plaintiff and appellant.
    Lazarus, Michel & Lazarus, Herbert S. Weil, attorneys for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit for refusing to accept and pay for merchandise sold and delivered.

The petition alleged that the plaintiffs, residents of Memphis, Tennessee, sold to defendant, for the price of $1,812.60, merchandise described in the invoices annexed to their petition; that the defendant refused to accept and pay for- said merchandise and returned them to plaintiff; that the plaintiff thereupon sold said merchandise for the price of $1,117.77, thus suffering a loss of $694.83, for which it claims judgment.

The answer admits the purchase, but avers that under the order given by defendant to plaintiff it was agreed that the merchandise should be shipped on July 1st and 15th; but that said shipments were not made on those dates, but only some time thereafter from a point in New Hampshire, so that the merchandise did not reach the defendant until September; that the defendant immediately returned the merchandise to the plaintiff.

There was judgment for the defendant and the plaintiff has appealed.

The evidence is that on May 13 or 19, 1920, the defendant ordered from J. P.' Vanden, representing the plaintiff, ten cases of cheviots and five cases of outings, three to be shipped July 1st and two July 15th; that on June 15th the defendant wired to plaintiff to “cancel all orders”; that Van-den and the defendant effected a settlement by which the defendant accepted the cheviots at a reduced price and agreed to reinstate the order for the outings; that on June 19th the plaintiff wrote to Vanden: “We have reinstated the order for outings and will cancel the order for cheviots, as suggested in your letter.” The bill of lading shows that the outings were shipped from Manchester, New Hampshire, on July 20th, 1920, notwithstanding repeated demands from defendant, and that the outings were delivered only in September.

The only excuse given for the delay is that it was caused by defendant’s wire to cancel all orders. But the wire was sent on June 15th and on June 19th the plaintiffs agreed unconditionally to reinstate the order for the outings. It did not ask for, and were not accorded, further time for shipment than had been originally agreed upon.

When an obligation is to be performed within a specified time, and the time expires without performance, default is not necessary. C. C. 1931-1933, S. 1-15, A. 689.

“Our law enforces no such fanciful notion as that after a contractor has violated his contract by not performing it” at the time stipulated, “the contractee who no longer desires to have the contract per-. formed must call upon him to perform,' and that if this is not done the time for the performance continues to run indefinitely.” Jennings vs. Houssiere, 119 La. 855, 44 So. 481; Murray vs. Barnhart, 117 La. 1034, 42 So. 489.

In an executory contract for the sale and delivery of goods on specified future dates, the rule is that time is of the essence of the contract, and that the purchaser will not be bound to accept and pay for the goods, if they are not delivered on the date specified in the contract. Jones vs. U. S., 96 U. S. 24 (28), and authorities there cited; Norrington vs. Wright, 115 U. S. 188; C. C. 1913.

We do not think that the action of the defendant in cancelling his orders for the goods, or in failing to promptly pay for the cheviots constituted a sufficient excuse for the late delivery of the outings. The plaintiff reinstated the order for the outings after the defendant had refused to receive the cheviots; and they shipped the outings after the defendant had failed to pay the full price of the cheviots. This was a condonation of defendant’s offense. Plaintiff might have been justified in notifying the defendant that he would not ship the outings until the defendant had paid for them or secured their payment, as was done in the cases quoted by its counsel; but it was no excuse for its delay in shipping. Bostick & Seymour vs. Mendenhall & Kitchell, Manning’s Unrep. Cases 113, No. 5445; Cavenagh vs. Cummin, 12 M. 306; Cook vs. West, 3 R. 331; Landeche vs. Sarpy, 37 La. Ann. 835; McCord vs. West Feliciana R. Co., 3 La. Ann. 285; Enders vs. Cingras, Mulhaupt & Co., 38 La. Ann. 775; Sitman & Burton vs. Lindsey, 123 La. 53, 48 So. 646.


author: WESTERFIELD, J.

text:
    No. 8713.
    Orleans Appeal.
    AMERICAN-LIBERTY BANK & TRUST CO. v. SUN CO.
    (November 3, 1924, Opinion and Decree.)
    (November 17, 1924, Rehearing Refused.)
    (January 6, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 191 Alienation, Par. 16.
    The failure of the debtor to qualify its acceptance of the transfer which a creditor has made of his rights to a third person precludes the debtor from opposing to the transferee the compensation it might have opposed to its creditor. This is true where the transferee is the agent of and charged with the distribution to certain principals of the avails of the debt transferred.
    (Civil.Code, Art. 2212 — Editor’s Note.)
    Appeal from Civil District Court, Parish of Orleans, Division “E”, Honorable Wynne G. Rogers, Judge.
    This is a suit to recover certain rentals which had been assigned. •
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lazarus, Michel & Lazarus, Herbert S. Weil, attorneys for plaintiff and appellee.
    Donaldson Caffery, attorney for defendant and appellant.
   WESTERFIELD, J.

The Liberty Bank & Trust Company sues herein, as the assignee of the Pelican Co-operative Oil Company, Inc., for certain rentals which it alleged were due by the Sun Company, under a lease made by the Pelican Co-operative Oil Company, Inc., to the Sun Company.

The Sun Company answered the plaintiff’s petition by denying that there had been any valid assignment, and by denying, particularly, that the assignment had any validity as against it, the Sun Company, for the reason, first, that the contract of lease had been violated by the Pelican Co-operative Oil Company, Inc., in that said Company had not installed a switch which the contract of lease obliged it to install, and, second, for the reason that the Pelican Co-operative Oil Company, Inc., owed the Sun Company, on open account, more than the amount of the rentals, hence there was nothing due to the Pelican Co-operative Oil Company, the lessor, or to the Liberty Bank, the lessor’s assignee.

There was judgment in the lower Court in favor of plaintiff, as prayed for, and the defendant, Sun Company, has taken this appeal.

The fact that plaintiff’s assignor was indebted to defendant in a sum sufficient to compensate the debt is not seriously disputed. The sole question is, can this defense be urged against plaintiff in view of the first section of Article 2212 R. C. C. reading as follows:

“The debtor, who has accepted purely and simply the transfer which a creditor has made of his rights to a third person, can no longer oppose to the latter the compensation which, before the acceptance, he might have opposed to the former.”

Defendant’s lessor transferred his claim for rent to plaintiff’on July 30th, 1921. Notice of such assignment was promptly given defendant and on August 8th, defendant, through its District Manager, wrote plaintiff as follows:

“Upon return to the city find your letter of August 1st and duplicate copy of an assignment between yourselves and the Pelican Co-operative Oil Company, Inc. We of course have no objection to your handling this account, but as a matter of information we wish to advise you that we have no formal lease with the Pelican people for this warehouse. The only signed documents we have with them is an exchange of letters in which we agreed to lease their warehouse with the understanding that it was “to be equipped with a switch track. It is the writer’s recollection that this switch track was to have been placed by March 17th of this year, but to date we are forced to rely upon a drayage arrangement for loading and unloading cars. This arrangement is not entirely satisfactory.
“We have never signed any rent notes and will not do so, nor have we signed a formal lease.
“Our methods of paying warehouse bills will be to approve them and send them to the Home Office for payment. It may be that a week or a longer period will elapse before the check is drawn and forwarded here.
“Trusting that this information will be of interest to you, we are."

Subsequently, the rental due by defendant for the month of August was paid to the plaintiff bank. It will be observed that no mention is made by defendant of any claim against his creditor, plaintiff’s assignor, in his letter of August 8th, moreover, the payment of the August rent implies the absence of such claim. But counsel says that defendant’s district manager was without authority to accept the assignment and that there was no assignment or transfer in the sense of Article 2212 R. C. C. which could be accepted. As to the authority of the manager, we think the acceptance of the transfer of the lease might well be made by him, particularly as he was the, party who made the lease, and his action in this regard we consider binding upon defendant. See Fletcher Cyc. of Corporation, Vol. 3, p. 3301.

The argument concerning the lack of a proper transfer is based upon the fact that the claim for rent was assigned to the plaintiff bank as trustee and not as owner in its own right of the claim. The assignment reads as follows:

“For value received, we hereby transfer and assign unto the Liberty Bank & Trust Co. of New Orleans, La., as trustee, all our right, title and interest in and to a certain agreement of lease,” etc.

Does the use of the word “trustee” invalidate the assignment? The Civil law term of Agent would have perhaps been more easily comprehended, but even if the transfer be made to an agent who is to collect the money and distribute it to his principals in certain proportions, thus creating an equitable and a legal interest in the assignment, or a elation en paiement coupled with a stipulation “pour autrui" as was done in this case, we think it nevertheless such transfer as contemplated by Article 2212 R. C. C. The decision in the case of Sintes vs. Commerford, 112 La. 796, 36 South. 656, is to this effect.

We conclude, therefore, that the failure to qualify the acceptance of the assignment of the lease by defendant precludes defendant from opposing its claim against the lessor to the lessor’s assignee.

The judgment appealed from is, for the reasons herein expressed, affirmed.


text:
    No. 8712.
    Orleans Appeal.
    MRS. ANNA M. GRAFF v. SOVEREIGN CAMP, SECURITY DEGREE, WOODMEN OF THE WORLD, Appellant.
    (November 3, 1924, Opinion and Decree.)
    (November 17, 1924, Rehearing Refused.)
    (January 6, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Insurance, Par. 96.
    Where a life insurance company or fraternal order has knowledge of facts giving it a contractural or even an implied right, to avoid liability as insurer under a policy duly issued, accepts a premium or assessment for which it knows the insured to be in arrears, it thereby waives the right to forfeiture.
    2. Louisiana Digest, Forfeitures, Par. 3.
    “Forfeitures have never met with the special encouragement of courts. They must find support in law in a manner that leaves no doubt as to the right of their exercise.”
    Lawrence vs. Penn Mutual Life Ins. Co., 113 La. 87, 36 . South. 898.
    See also Fitzgerald vs. Benevolent Knights of America, No. 8324 Orl. App., decided Nov. 13, 1922.
    Appeal from Civil District Court for the Parish of Orleans, Division “E”, Hon. Wynne G. Rogers, Judge.
    This is a suit for death benefit claimed to be due the named beneficiary under an insurance policy. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Jessey Benedict Gessner, attorney for plaintiff and appellee.
    Andrew B. Booth, Jr., Pierre D. Olivier, attorneys for defendant and appellant.
   BELL, J.

Mrs. Anna M. Graff, plaintiff herein, widow of Emile Graff, and beneficiary under a certain policy, dated October 13, 1919, which also is described as “whole life Certificate (No. 103,406), issued by the Woodmen of the World, _ Universal Camp, Security Degree, Omaha, Nebraska”, sues the insurer, defendant herein, for the. sum of $500.00, as “death benefit”, claimed to be due the named beneficiary.

The defendant organization or society admits the issuance of the policy to the deceased, Emile Graff, and that he died on May 16, 1920, and that the above certificate calls for a cash payment to plaintiff of $500.00 upon the death of her husband. It is further admitted that the defendant was advised of the insured’s death, and that plaintiff made demand for settlement, which was refused, and that the insured paid all of his dues up to May 30, 1920.

The sole defense is that Graff, after paying his first monthly dues or assessment of eighty cents on the day the policy was delivered, to-wit: October 13, 1919, failed to pay like amounts on the first day of the following consecutive months of November, December and January. The evidence shows this fact to he true and that nothing was paid by him from October 13, 1919, until January 5, 1920, upon which latter date he paid eighty cents for each of the monthly premiums due on the first of November and. December of 1919. Thereafter, it appears that he paid similar monthly premiums as follows:

Eighty cents for January, 1920, on Feb. 11, 1920.
Eighty cents for February, 1920, on March 4, 1920.
Eighty cents for March, 1920, on March ' 4, 1920.
Eighty cents for April, 1920, on April 5, 1920.
Eighty cents for May, 1920, on April 5, 1920.

It is, therefore, contended that the policy became null and void on the 2nd day of December, 1919, that is, upon Graff’s failure to remit within thirty days after his first delinquency, to-wit: November 1, 1919, the premium due the previous month, which would have become delinquent on the latter date, and, further, because of his other untimely remittances, as shown in the above schedule of payments. The defendant pleads the constitution and by-laws of the Sovereign Camp, and specially pleads and incorporates in its answer the following provision in the policy:

“This certificate is granted in consideration of the monthly premium hereinbefore stated in the schedule and of the payment of a like amount on of before the first day of each consecutive month thereafter during the continuance of this contract, and the further consideration .of the delivery of this certificate during the lifetime and good health of the member.
“All premiums are payable at the Home Office of the Society, but may be paid to ah authorized representative of the Society; such payments to be recognized by the Society must be entered at the time of payment in the premium receipt booh belonging with this certificate. If for any reason the premium be not called for when due, it shall be the duty of the member before said premium shall be in arrears thirty days, to bring or send said premium to the Home Office of the Society or to one of its local representatives. If the premiums are not paid as herein specified this contract shall be null and void.
“REVIVAL. — -Should this certificate become void for non-payment of premium, it will be revived within one year from the date to which premiums have been duly paid upon payment of all arrears, provided satisfactory evidence of the insurability of the member be furnished to the Sovereign Commander, but such revival shall not take effect unless at the date thereof the member is living and in sound health.”

Further answering, the defendant shows that the payment received by it on January 5, 1920, was received without its knowledge or information that Graff was not in sound health, and that this fact only became known to the Society after Graff’s death, and then only from the attending physician’s certificate of death, attached to the proof of death, showing that the last illness of the deceased was five or six months prior to his death. Upon the following issues the case' was fully tried, and from a judgment rendered for plaintiff, defendant appeals.

Under the admissions above noted, there remains for determination three questions of fact: 1st, did Graff ever believe that he had defaulted on the policy; 2nd, did he ever make application for reinstatement, and, 3rd, did he ever have knowledge or reason to believe that he was in bad health at the time that the defendant’s agent called for and collected the several premiums claimed to be in arrears?

The evidence shows that Graff was a young man, 24 years of age, when he died, and that he was á machinist in apparent strong, robust health, and that he was never at any time notified by the defendant or any of its agents or collectors of the fact that he was delinquent. It is reasonable to assume on this first point that he did know, or was charged under the law with knowledge of the fact, that he had not paid his second or third premiums when they became due, but there is nothing in the constitution or by-laws of the Society nor in the clauses of the policy itself, above quoted, that required him to apply for reinstatement, nor is there any evidence that he was ever notified that the company considered him a delinquent or considered that his policy had elapsed. On the contrary, it is clear from the evidence that despite the fact of his failure to pay the November or December premiums when due, the collector of the company called on January 5th and received from him the two previous months’ premiums, then in arrears. We find in the second clause of the policy above quoted that a “duty”, but certainly no obligation is imposed upon a policyholder to forward his dues when same are not called for. Other language in this same clause implies that the company expects, under any condition, to first call for the premiums rather than to have them forwarded. None of the collectors of the defendant Society were placed by defendant on the stand, and it is, therefore, not shown where any demand for delinquent dues had been made upon Graff. It-does not appear from any evidence in the record that Graff had any occasion to know that he was not in good health. The doctor who attended him was placed on the stand by the defendant, and, as its witness, testified, among other things, that he had examined Graff for the first time on December 16, 1919, and that .the symptoms which he seemed to have were rather of an uncertain nature, and that he had made no diagnosis of the patient’s trouble. It is further shown that Graff continued his duties, which evidently involved labor of a strenuous nature, continuously until within a few days of his death, his death coming upon him suddenly from a rupture of the anaurism of the aorta.

. There was some attempt on the part of defendant to prove that Graff was afflicted with tuberculosis for many months prior to his death, but the doctor’s certificate and his testimony is quite to the contrary. The doctor further testifies that Graff was a large, square-shouldered man, of robust type, and that it was quite possible, in the early stages of this disease, from which he died, for him to have had the disease without knowing it.

The plaintiff in this case testifies that at no time when the collector called for the payments was she informed that the policy had lapsed, and there is no evidence whatever in the record that Graff had such knowledge, nor is it shown, in fact, that the company, by specific notice or by any of its acts, considered the policy as lapsed, or that it attempted, through any of its agents, to convey such a fact to either Graff or the plaintiff. We must gather from this that there was no deception or fraud whatsoever on the part of either Graff or the beneficiary.

There is further proof in the record that the defendant Society received from the plaintiff and permitted her to go through the expense and trouble of making a claim for the insurance, and of securing from the physician and herself, respectively, proof of death and proof of claim, all without any declaration that the claim was not to be recognized or that the policy had been considered or declared void.

Under the foregoing facts, and considering the conduct of the defendant, we are of the opinion that a clear case of estoppel applies, and that there was never any forfeiture of the policy in law or in fact.

In the case of Powell vs. Factors & Traders Ins. Co., 28 La. Ann. 19, a fire insurance policy was held not to have been voided by failure of the insured to comply with certain conditions therein relative to information which the insured had obligated himself to convey to the insurer, from time to time, for the reason that, the evidence showed the insurance company to have received from the insured, after knowing of his delinquency in this respect, various premiums falling due from time to time. Under such circumstances, the court held that the policy could not have lapsed under the doctrine of estoppel, and that the defendant could not accept the fruits of a contract and allege its invalidity for a breach thereof, known at the time of the acceptance of such fruits. The court further held that if the policy was valid to earn premiums, it remained valid to bind the insurer for losses occurring in the meantime. (See also 19 Cyc., 627.)

In Lawrence vs. Penn Mutual Ins. Co., 113 La. 87, 36 South. 898, where a note was given in payment of the first premium instead of cash, as provided in the policy, it was held that the insurer could not for this reason, after accepting the note through its agent, plead that the policy was void. In that case, the court laid down a well-accepted doctrine that it would look with disfavor upon the forfeitures of a policy, and would only support such a plea when no doubt was left as to the right to exercise it. A careful research for any qualification of this doctrine, as laid down by the Supreme Court of this State, has not been successful. (Gunther et al. vs. Mutual Aid Ass’n, 40 La. Ann. 777, 5 South. 65.

In 25 Cyc., pp. 869, 870, 871, verbo: “XI, ESTOPPEL, ETC.”, paragraph 4: An ápproval of this same doctrine expressed upon the force of innumerable authorities there cited. It is said:

“If the company, with knowledge of facts giving it a right to avoid the policy, accepts a premium or assessment, it thereby waives the right to forfeit the policy. * * * The acceptance of a premium or assessment is a waiver of forfeiture on acount of a default in not paying it in due time. * * * If, with notice of facts entitling it to avoid the policy, the company enters into negotiations for a settlement, or requires the furnishing of proofs of death at some trouble and expense, it is stopped from insisting on a forfeiture.”

It is true, on the other hand, that there is authority to the effect that acceptance of delinquent premiums on condition that the insured is in good health, prevents the estoppel above referred to. This doctrine, a very just one, is expressed in 25 Cyc. 871, as follows:

“The acceptance or retention of premiums after forfeiture may be on the condition that the insured is then in good health, or that a medical certificate of good health be furnished, in which case there is no waiver unless insured is in good health and he furnishes the certificate.”

But the above doctrine is- not applicable to the instant case upon the facts before us, for the reason that there is nothing specific in the record to show that Graff had any reason to believe that at any time after his delinquency in payment of the premiums he was in any serious ill health.

We are of the opinion, for the reasons here noted, that if- any forfeiture occurred, the same was waived by the Society in its subsequent action, and that it is estopped to claim, after accepting the several premiums paid by Graff, that the policy is void and the claim for that reason not recoverable.

It is, therefore, ordered, adjudged and decreed that the judgment herein appealed from be and the same is hereby affirmed, at defendant’s costs in both courts.


text:
    No. 8718.
    Orleans Appeal.
    CANAL-VILLERE REALTY CO. v. S. GUMBLE REALTY & SECURITIES CO., Appellant.
    (November 3, 1924, Opinion and Decree.)
    (December 1, 1924, Rehearing Refused.)
    (January 7, 1925, Decree Supreme Court. Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Party Wails, Par. 7.
    In order to make a neighbor liable for the value of a wall he uses, it is not essential that he should use the wall as. a support for his building, it is sufficient that he use the wall as one of the sides to enclose his building.
    2. Louisiana Digest, Party Walls, Par. 1, 7.
    It is not necessary that the claim of the adjoining owner for one half of the value of the wall should be recorded.
    3. Louisiana Digest, Party Walls, Par. 2.
    The presumption that a wall is common applies only to a wall that separates two buildings, no such presumption applies to a wall that separates a building from a vacant lot.
    4. Louisiana Digest, Party Walls, Par. 6.
    In computing the liability of the party who uses the wall, the height of the fire wall must be included.
    5. Louisiana Digest, Party Walls, Par. 6.
    In estimating the value of the wall no depreciation for age shall be allowed unless supported by evidence.
    6. Louisiana Digest, Party Walls, Par. 6.
    A neighbor who uses the party wall must pay one-half of its value at the date of using it.
    (Civil Code, Art. 671, 676, 677 and 684.— Editor’s Note.)
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit to recover one-half of the value of a brick wall used by the defendant. Judgment for plaintiff. Defendant appealed.

      Judgment affirmed.
    A. D. Danziger, attorney for plaintiff and appellee.
    Hall, Monroe & Lemann, W. J. Suthon, Jr., attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit to recover one-half of the value of a brick wall used by the defendant.

The plaintiff alleged that it is the owner of a building on the downtown river side of Canal Street; that the defendant, within the past six months, has made use of a part of the wall of plaintiff’s building by resting the flashing of its building adjoining on said wall, and by using the said wall as one of the sides for its said building, tieing the front wall of defendants’ property in with said division wall, and by coloring or whitewashing the wall to conform in appearance to the entire interior thereof; that there are contained in that portion of the wall which is being used by defendant, a distance of 114 feet in length, and height varying from 21 feet, 5 inches in front, to 15 feet in rear, and foundation of 2 feet and footing of 4 feet, a total of 2,332 square feet with 24 bricks per square foot, or 55,980 bricks at $35 per thousand or $1,959.30, one-half of which equals $979.65 and that petitioner is entitled to recover from defendant one-half of the value of said portion of wall or $979.65.

The defendant pleaded the prescription of ten years acquirendi causa under Article C. C. 765 and 3544.

Por answer, the defendant admitted the erection by it of a building upon the lot adjacent to petitioner’s lot, but denied the allegations relating to the use of plaintiff’s wall as a party wall, and also as to the number of bricks in the wall and the value thereof.

By a supplemental answer the defendant alleged that it bought the property from Widow Dunn by Act of P. D. Charbonnet, Notary, dated April 5, 1918, by clear mortgage and conveyance certificate; that whatever claim plaintiff has against defendant for use of the wall as a party wall existed against defendant’s author prior to defendant’s purchase of the property; and that the same not having been recorded is ineffective against defendant. .

It seems that a portion of plaintiff’s wall about 35 feet in front, had been used by previous owners more than ten years prior to defendant’s purchase; but that the defendant used a much larger portion when he erected his building. Whereupon the trial judge rendered the following judgment:

“The plea of prescription in this case is good covering that portion of the wall used prior to purchase by the Gumble Company; as to the balance, the- plea is overruled. Let there be judgment for $689.92 as prayed for.”

The defendant has appealed. The plaintiff has not appealed, nor has it answered the appeal by praying for an amendment of the judgment; therefore the judgment cannot be amended as to him, and the only question beforé this Court is concerning the additional portion of the wall which had not been previously used by Widow Dunn.

In argument and in his brief the defendant makes the following defenses:

1st. That in order to utilize a side wall as a party wall, the adjacent proprietor must utilize the wall in question .as a “support for his building”.

The conditions of the two buildings is thus described by A. M. Rennyson, a witness for the defendant:

“Q. Has the Gumbel building any wall of its own on the side next to the CanalVillere building?
A. No, sir, not on that side. There is a foundation wall supporting the roof, foundation and wall studded up ’to support the weight of the roof of the Gumbel building.
Q. What does the Gumbel building rest on, on that side? What supports it?
A. There is a brick footing two or two and a half brick footing, and a nine-inch wall built on the Gumbel property. On top of this there is a sill. On the sill, studs; then plates, and then the roof.
Q. What do you mean by studs?
A. Well, that is posts to hold the roof.
Q. Does the Canal-Villere wall support the Gumbel building at all on that side?
A. No sir, there is no weight whatsoever on the Canal-Villere wall supporting the Gumbel building.
Q. If the Canal-Villere w'all was removed, would the Gumbel building stand?
A. Yes, sir.

Mr. Elias Pailet, vice-president of plaintiff’s company, testifies:

Q. What did Mr. Gumbel do with reference to the structure that at present stands in that place with reference to your wall?
A. He has flashed in the roofs of his buildings into our brick building, the whole length of his building, 114 feet.
Q. Do you know what was done with reference to the tying in of the Gumbel property, in so far as that division wall is concerned?
A. When they were putting the building up, I examined it, and they have. held up their ceiling joists on two by four studs, and I expected that they would leave an opening away from our building, and after they put "the roof on it, I walked on the roof and the tinsmith whs flashing in his roof into our building.
Q. Mr. Gumbel’s building, has it a wall on the side nearest to Villere Street other than the wall of the Canal-Villere Realty Company?
A. No, sir. He has no wall with the exception of two by four studs, holding the plates up, a distance apart, two by four posts.
Q. In other words, if this Canal-Villere wall was not there, would there be a space open on the side nearer to Villere Street?
A. It would be entirely open with the exception of the two by four studs here and there.
Q. From your observation of the way Mr. Gumbel’s building was erected against your wall, if your wall was taken away, do you think Mr. Gumbel’s building would need any other support?
A. He would need a wall to close up his building.”

Mr. P. Julius Dreyfous, an architect, testifies:

“The brick walls of the Canal-Villere building are tied in the front and rear, but they do not support the walls. The walls of the Canal-Villere building do not support the roof of the Gumbel Realty Company building, except, on the front and the rear, where the brick walls are tied into those of the Canal-Villere. The flashing on the roof, however, extends into the Canal-Villere building so as to make the roof water tight. The flashing of course of brick above the building is cut and the flashing is put into the wall and then cemented so as to make it water tight, and it ties into the brick wall above the flashing above the roof.”

In support of his contention defendant quotes Article C. C. 679:

“Nevertheless every co-proprietor of a wall in common may be exonerated from contributing to the repairs and rebuilding by giving up his right of common; provided no building belonging to him be actually supported by the wall thus held in common.”

It relies also upon the case of Monteleone vs. Harging, 50 La. Ann. 1147, 23 South. 990, and Oldstein vs. Firemen’s Building Assn., 44 La. Ann. 492, 10 South. 928.

The first case merely asserts the proposition that the defendants must pay for one-half of the wall which they have used “as a support for their own building, and made it a common wall”.

In the other case, the question was the right to open windolvs in a wall alleged to be common.

But in Mrs. A. M. Winter vs. William H. Reynolds, 24 La. Ann. 113, the Court said:

“The defendant uses the party wall. It will seem that he is liable.” Same word “use” in W. T. Davis vs. A. Grailhe, 14 La Ann. 338, and in Florence vs. Maillot, 22 La. Ann. 114; Graihle vs. Hown, 1 La. Ann. 140; Murrell vs. Fowler et al., 3 La. Ann. 165; Chism & Boyd vs. Lefevre, 27 La. Ann. 199.

On Chism vs. Lefevre, 27 La. Ann. 199 (201), the court said:

“Availing himself, as it seems he has done, of the benefit of the wall, it is but fair he should pay for one-half the expense incurred in building it.”

In Auch vs. Labouisse, 20 La. Ann. 553, the court said:

“Although the wall was intentionally not used as usual in the erection of contiguous buildings, yet the evidence shows that the new building rests upon and is attached to the wall built by plaintiff, and the defendants, as owners of the adjoining lot, are liable.”

Article C. C. 679 is a literal translation of Article 656, Code Napoleon. In commenting upon said Article, 7 Laurent, p. 629, S. 548, says:

“It would be the. same thing if the party who desires to abandon the wall in common derived from it any benefit whatever. * * * Article 656, it is true, speaks only of the case when the wall supports a building, but it is not restrictive; it is the application of a principle, and the principle is naturally applicable to all analogous cases.”

1 Dalloz Codes Annote’s on Art. 656, p. 1114 S. 18:

“This expression ‘support’ must not be understood in a restrictive sense, but in this sense that the neighbor who abandons the wall in common, being no longer bound by the obligations it imposes, should no longer retain its advantages.”

Our interpretation of the law therefore is that when a neighbor uses an adjoining wall as a wall or protection to enclose his building, as defendant has done in this case, that he must pay one-half of the value of the wall used by him at the moment of using it.

2nd. The question whether an owner’s claim for one-half the value of the wall against the neighbor must be recorded has been decided adversely to the defendant in Mrs. A. M. Winter vs. William H. Reynolds, 24 La. Ann. 113, and 27 La. Ann. 199, Chism vs. Lefevre.

3rd. The defendant also pleads Article 677 (673) which reads as follows:

“Every wall which is a separation between buildings as high as the upper part of the first story, or betwixt the yard and garden in the cities and towns, and their suburbs, of this State, and even any other inclosure in the fields, shall be presumed to be in common, if there be no title, proof, or mark to the contrary.”

This Article is a copy, in its material parts, of Article 653, Code Napoleon.

We copy from Oldstein, 44 La. Ann. 500, 10 South. 928, a translation from Baudry-Lacantinerie:

“The wall which separates a house from a garden or lot is not presumed a wall in common. The law reads between buildings ; and between enclosure and garden, and not between a building and an enclosure and garden.” Vol. I, p. 884; 5 Baudy, p. 661, S. 937; 11 Demolombe, p. 349, S. 323.
“Article 653 establishes the presumption of community in two hypotheses only: First, ‘betwixt buildings’, that is, between two buildings; and next, between yards and gardens, and between enclosures, that is, between two lots not built upon. But between a building and a yard, a garden or any enclosure whatever, our Article is absolutely dumb. Therefore there exists no presumption of eordmunity for the wall which separates a building from a lot not built upon.” Lavergne vs. Lacoste, 26 La. Ann. 507; Murrell vs. Fowler et al., 3 La. Ann. 165; Olstein vs. Firemen’s Building Assn., 44 La. 500; 10 So. 928.

7 Laurent, p. 609, S. 526. “There is no longer any presumption when one of the properties is a building and the other a lot not built upon.”

1 Pardessers Servitudes, p. 373-375, S. 159; 16 Dalloz Rep. Leg. Supp., p. 126, S. 136.

3 Pothier, p. 533, S. 202:

“When the wall supports buildings which are only on one side, and when on the other side there are neither buildings, nor indications that there have been any, the wall is presumed to belong only to that one of the neighbors whose building it supports; the presumption being that it is the neighbor, who needed the wall for l^is building, who caused it to be built upon his lot and at his expense, and that the other neighbor, who had no interest in the construction of the wall, having no building against it, has not contributed to it.” 40 Dalloz Rep. Leg., p. 144, S. 412; 5 Duranton, p. 289, S. 303.

4th. The contention that because the Dunn building covered a height of 40 feet and the Gumbel building only 21 feet, that Gumbel must be credited with the value of the difference is “novel” as counsel admits, but does not appeal to us.

5th. Nor do we think that the height of the fire wall, three feet, should be deducted. Had defendant constructed a side wall to his building the Building Code would have required him to have a similar wall. The defendant is as mttch bound to pay for that portion of the wall as for any other.

6th. The defendant also contends that the evidence shows that Dunn used a part of the rear building for his shed. There is testimony that the shed was built by Dunn before the plaintiff erected their wall. At any rate the evidence upon that point is too uncertain to base a judgment.

7th. The testimony as to the number and value of bricks of the Architect Dreyfous impresses us as more reliable than that of Rennyson, as it did the Judge of the trial court.

8th. The testimony of Dreyfous is that there was no depreciation whatever in the plaintiff’s wall, only fourteen years old. He has not been contradicted. We cannot ■decide this case upon the hypothetical theories and speculations of persons not engaged in that line of business.

9th. It is also the law that the neighbor who uses a wall must pay one-half of its value.

C. C. 684 (680). “Every proprietor adjoining a wall has in like manner, the right of making it a wall in common, in whole or in part by reimbursing to the owner of the wall one-half of its value, or the half of the part which he wishes to hold in common, and one-half of the value of the soil upon which the wall is built, if the person who has built the wall has laid the foundation entirely upon his own estate.” Board of Administrators vs. Israel, 132 La. 676. 61 South. 734; Graihle vs. Hown, 1 La Ann. 140; Murrell vs. Fowler, et al., 3 La. Ann. 166; W. T. Davis vs. A. Graihle, 14 La. Ann. 388; Augustin vs. Farnsworth, 155 La. 1054, 99 So. 868.


text:
    No. 8719.
    Orleans Appeal.
    RALSTON S. COLE v. GORDON ZEIGLER, Appellant.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Pleading, Par. 23.
    A defendant’s exception of “vagueness”, filed to a suit on a verbal contract of sale, upon the ground that the allegations of the petition are so insufficient as to prevent the defendant from answering safely concerning the place where and the conditions under which the verbal agreement was made, is „ properly overruled by the trial court. A plaintiff is only required to allege that which will support his cause of action. He is not compelled to allege that which the defendant believes • is necessary for the defendant’s rejoinder.
    (Code of Practice, Art. 172, Par. 4 — Editor’s Note.)
    2. Louisiana Digest, Pleading, Par. 115.
    In a suit against the vendor for the return of the price of the goods sold by him, but which he refuses or fails to deliver after being put in default, an answer only by way of general denial. bars any proof duly objected to, regarding set-off or counter claim against one shown only on the trial to have been an agent of the vendee.
    3. Louisiana Digest, Appeal, Par. 626.
    A judgment based' solely upon the credibility of parties and witnesses to a verbal contract, must be .given great ■weight by an appellate court, and will not be disturbed unless clearly erroneous.
    Appeal from Civil District Court for the Parish of Orleans, Division “E", Hon. Wynne G. Rogers, Judge.
    This is a suit to recover purchase price where delivery was not made. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Spencer, Fenner, Gidiere & Phelps, attorneys for plaintiff and appellee.
    T. S. Walmsley, attorney for defendant and appellant.
   BELL, J.

We find from an examination of this case that the facts are substantially true as stated in the plaintiff’s petition, of which Articles 2 and 3 read as follows:

“That on or about December 16, 1919, petitioner and the defendant, Gordon Zeigler, entered into a verbal agreement, whereby the said Gordon Zeigler agreed to sell and deliver the petitioner one barrel of Old Taylor whiskey, for the price of Nine Hundred Dollars ($900.00), which price was paid by petitioner to the said Zeigler on the same day; that said whiskey was never delivered by said Zeigler, nor any further steps taken towards consummating the transaction, but that, on the contrary, petitioner shortly thereafter repudiated and disaffirmed same and made demand upon said Gordon Zeigler to return the money paid him, but that said Zeigler refused and continues to refuse to do so, despite the fact that he has received same without giving consideration therefor.”

The petition, which avers that both parties litigant are residents of New Orleans, contains the prayer that a judgment be rendered against defendant for the sum of $900.00, with legal interest from January 1, 1920, until paid. Such a judgment was obtained by plaintiff and the defendant has appealed.

An exception of vagueness was filed by defendant to this suit on the grounds that the petition was so insufficient in its- averments as to prevent defendant from safely-answering where the defendant entered into said agreement, or what were the conditions of said verbal agreement. This exception was properly overruled by the trial court. It is not required, under rules of practice, that the petition, as the basis of the suit, should do other than contain allegations necessary to support a cause of action. The plaintiff is not required to allege any fact which the defendant may deem necessary in formulating his rejoinder.

The answer to this suit is but a general denial.

This case involves only a determination of issues of veracity between the parties to the suit and witnesses to the verbal contract upon which the suit is predicated. We are inclined to believe, as did the judge of the trial court, that the plaintiff and his witness, Irby, have truthfully testified to the real facts of this case.

The defendant’s story is that he never agreed to sell the whiskey in question to the plaintiff, but the evidence shows that on December 16, 1919, in the presence of Mr. Robert Irby, Jr., the defendant did agree to sell one barrel of Old Taylor whiskey, for the sum of $900.00, cash, to plaintiff, and that at the time he distinctly told plaintiff that the whiskey was in his warehouse, and that it would be delivered to plaintiff that night.

We find from the evidence that there was an absolute offer made by plaintiff to defendant for the purchase of the whiskey and that defendant positively accepted this offer, but refused to receive the price in anything but cash, and then, only from Irby, who had presented plaintiff to defendant as the real purchaser.

We also find that the defendant accepted, first from plaintiff and again afterwards from Irby, written directions as to the place for the delivery of the whiskey, to-wit: 462 Lowerline Street, the plaintiff’s specific address, not Irby’s address, though Irby bad lived nearby on the same street. Defendant admits that he received these written directions, though he swears that he did not read what was on the cards or slips of paper given him. The fact that he took or received any written directions concerning the place of delivery is strongly conclusive, to our minds, of .his intention to sell and deliver the whiskey to plaintiff, for the reason that he admits to have already known Irby’s address, having visited him at his residence on Lowerline Street some months previously. To have taken, ■therefore, written directions from either plaintiff or Irby would have been a useless and purposeless thing to do, had he intended to sell and deliver to Irby, as he said he did.

But there are two other statements of defendant which prevent our giving any credibility to his testimony. He brazenly admits that, while he went through all the preliminaries leading up to this alleged .sale — whether to plaintiff or to Irby — that he never at any time intended to sell the barrel of whiskey, then in his warehouse, to Irby, although he received from Irby $900.00 in cash in payment of what he, defendant, admits he led Irby to believe was the identical barrel then in his warehouse.

. There are other statements, conflicting and evasive, which make it impossible for us to give much, if any, consideration to the defendant’s testimony. They relate particularly to the telephone conversations plaintiff swears positively to have had with defendant regarding the latter’s excuses for failure to deliver the whiskey to plaintiff’s address. At first the defendant admits, when questioned about these conversations, that he did have such conversations with the plaintiff, and then when he is carried for a few moments further under cross-examination, he denies with equal positiveness that he had these conversations with plaintiff, and finally says they were with Irby.

We rise from a close study of the record before us with the conviction that the defendant did sell and did intend to deliver to plaintiff the whiskey that he represented to both plaintiff and Irby was in his warehouse, but after receiving the cash therefor from Irby, and while knowing that Irby could not have been acting for himself, but only for plaintiff, he concluded to square accounts between .himself and Irby on a transaction which he had had with Irby many months previous, and about which, under the pleadings in this case, we are not concerned, and can take no cognizance.

We may also add that there are no grounds under the pleadings or. facts of this case for application of the doctrine of undisclosed principal, urged by counsel for defendant.

We find no error in the judgment of the trial court, and are of the opinion that it should be affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed, at defendant’s costs in both 'courts.


text:
    No. 9554.
    Orleans Appeal.
    MRS. BERTHA KERNER, ET AL., Appellant v. TRANS-MISSISSIPPI TERMINAL RAILROAD CO., ET AL., Appellee
    (November 3, 1924, Opinion and Decree.)
    (December 1, 1924, Rehearing Refused.)
    (January 2, 1925, Decree Supreme Court Writ of Certiorari and Review Granted.)
    (Reported by Supreme Court in 158 La. 853, 104 South. 740.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Action, Par. -80.
    The causes of action set forth in the two paragraphs of Article 2315 R. C. C., as amended, continually exist, as the case may be, during the respective periods of prescription stipulated in Articles 2315 and 3536, regarding actions ex delicto. The right to assert these causes of action and which is transmitted to the several classified surviving beneficiaries named in Article 2315, does not abate upon the death of any one of these classes entitled to priority in the exercising of this right. But passes to the survivor or survivors next in rank, if asserted at any time within the space of one year from the death of the injured party.'
    Appeal from Twenty-eighth Judicial District Court for the Parish of Jefferson, Hon. Prentice E. Edrington, Judge.
    This is. an action ex delicto for accidental death. Judgment for defendant. Plaintiff appealed.
    Judgment reversed and case remanded.
    A. T. Higgins, attorney for plaintiff and appellant.
    John E. Fleury, B. W. Kernan, Amicus Curiae, attorneys for defendant and appellee.
   BELL, J.

This is an action ex delicto wherein certain plaintiffs, as brothers and sisters of one Louis C. Kerner, sue defendants for damages claimed in the petition and arising out of an accident occurring on November 22, 1922, and which is alleged to have been caused by the negligent operation of a freigh train of the Trans-Mississippi Terminal Railroad Company, one of the defendants herein. The petition sets forth, among other facts, that Kerner and wife — the latter instantly and Kerner about eleven hours later — died of injuries sustained from the accident. The deceased were married but once and without issue. Kerner’s father was not living at the time of the accident, but Kerner’s mother, as his then sole survivor, vested with a right of action under the provisions of Article 2315 R. C. C., sued the defendant railroad Company and .others for damages resulting from the accident. During the pendency of the suit and, . before . trial or judgment, ■Kerner’s mother died, on June 20, 1923, leaving the present plaintiffs, who, in consequence of her death, became, in her place and stead, the' sole survivors of Kerner. These plaintiffs, as “brothers and sisters” in default of the “mother”, instituted this present action on September 20, 1923. Items of clamages totaling Twenty-five Thousand Dollars ($25,000.00) are claimed under both causes of action, as set out in the two paragraphs of Article 2315 R. C. C.

All defendants herein filed exceptions of no cause or right of action in plaintiffs to bring this suit. From a judgment maintaining the exceptions, plaintiffs have appealed devolutively.

Appellants concede that they derive no rights as heirs of their mother (the plaintiff in the first suit), but base their right of recovery under the causes of action sued upon as survivors of Kerner, they, as such, having been vested, by operation of law, with this right upon the death of their mother, who, until her death, was a survivor and beneficiary in, a class holding a right of action immediately prior to theirs. In other words, the present suit, as we understand the contention or argument of counsel for plaintiffs, is predicated .upon the theory of law that the causes of action sued upon were inchoate from the moment of the accident, became vitalized at the moment of Kerner’s death in so far as his survivors within designated classes were concerned, and that the right of recovery under these causes of action passed, or were transmitted by operation of law, first, under the facts of this case, to Kerner’s mother, and because of her death, to them.

Defendants, on the other hand, contend in their brief that:

“(1) The statute does not provide for or contemplate more than one survival of the action. The right of action .survives but once. This survival occurs immediately upon the death of the injured party. The state of .facts existing at that time determines the person or persons in favor of whom the right of action survives. They, and they alone, have this right of action ‘for the space of one year from death’. The beneficiaries of a remoter class are excluded for all time and regardless of whatever may occur thereafter. * * *
“(2) The theory of the law is that, in the absence of a surviving spouse or children, the parents are regarded as the only persons who can be said, in legal contemplation, to have sustained damages on account of the death of the injured party, and that it is only ‘in default of these’ that the brothers and sisters have any claim.”

Considering, therefore, the foregoing contentions- of counsel, the only question squarely presented in this case, and which, as yet, seems never to have been determined by the Supreme Court of Louisiana, is as follows:

Does the right to the causes of action which may be pleaded under Article 2315 and which existed only because of the death of the injured party, abate upon the subsequent death of a particular beneficiary, who, at the moment of the injured party’s death, was then vested with the exclusive right of recovery?

Under the facts as alleged in this case, there is no dispute that at the moment of Kerner’s death, there was transmitted to his mother the exclusive right to a cause of action which Kerner possessed prior to his death and which arose from the injury sustained by him. It is also true that there was also a cause of action which, after Kerner’s death, arose exclusively in his mother’s favor for recovery of damages suffered by her because of the death of her child. While this latter cause of action was one arising in favor of the surviving mother upon the occasion of the son’s death, it was never a right to any cause of action of which the son was possessed or which passed to the mother by inheritance, transmission or subrogation. It was hers because the lawmaker saw fit by the amendment — Act 71 of 1884 — to grant unto her as a certain designated beneficiary,, a cause of action for recovery of damages sustained or suffered by her because of the death of her child. '

It is apparent from the plain language of the entire Article 2315, that no cause or causes of action, nor rights to the enforcement thereof, are in anywise heritable, but exist while in derogation of common right, solely by virtue of legislative enactment. It is proper, therefore, that strict construction should be given to the amendatory statute, but none which would on the one hand destroy the inescapable liability intended to be imposed upon the tort feasors within the prescriptive period of Article 2315 (also Article 3536), nor, on the other hand, to create and confer any benefit not expressly granted to those named in the statutes amendatory of Article 2315.

The learned judge of the district court has stated in written reasons for judgment maintaining the exceptions herein filed, that his conclusions are based upon the rulings made in Chivers vs. Roger, 50 La Ann. 57, 23 South. 100; Huberwald vs. Orleans Ry. Co., 50 La. Ann. 477, 23 South. 474, and Thompson vs. N. O. Rys. & L. Co., 145 La. 805, 83 South. 19. ’ Our careful examination of these cases does not furnish us with any satisfactory conviction that the point at issue has been determined in these authorities. Nor do the facts in these cases seem to square with the facts now under consideration. Indeed, we rather agree as to these citations with the comment made about them in brief of Amiens Ouriae that “in each of these cases there are features which distinguish it from the case here.”

In Chivers vs. Roger, the father, suing for damages for the death of his son, died before the case was decided, and his children of age substituted themselves as plaintiffs and claimed right - of recovery on the theory that as legal heirs of the father they had inherited the right of action already asserted by him, and, therefore, were entitled to prosecute the suit to final judgment. The court rightly adhered to a strict construction of the statute and refused, by judicial interpretation, to enlarge the provisions of Article 2315 as amended by the Statute of 1884, by conferring upon the substituted plaintiffs, claiming only as heirs, a right of action in favor of the class of persons not included in either the article or its amendment.

In Huberwald vs. Orleans Ry. Co., the court dismissed a suit brought by children, then majors, for the death of their father, and who based their action upon the theory that they were heirs of their mother, who had survived the father by a few months. Here again the court, following its previous decision in Chivers vs. Roger (rendered in the same year) refused to apply the law of inheritance in favor of “major children”, who, as such, were not then (nor until the amendment, Act 120 of 1908) included as survivors having a right of action in default of the class then designated as “minor children and widow of the deceased”. In this case one of the major children had been a minor for a short time after her mother’s death, but became of age before joining the other major children in the suit. The court, for this particular reason and for the additional reason that she, like the other major children, could not - assert her right to the action on the theory that it was in the nature of a property right and; therefore, inheritable, said:

“The minor, after majority, is no longer possessed of the quality required by the statute. Moreover, the right would assume the nature of a property right and not one attached to the person, if it remained after the change of status from her minority to her majority. It would become transmissible, or one which creditors might exercise in nomine debitori. From any point of view, in our judgment, the right, to be of any avail, must, at least, have been claimed judicially at the time of the change of status in order that the intended beneficiary may recover for the injury.”

From the foregoing quotation, it is reasonable to assume that had the minor child, when such, asserted the action, it would have been recognized and upheld as being transmitted to her from the mother, not because of the minor child’s right of inheritance, but because of the plain language of Article 2315, as amended by Act 223 of 1855 and Act 71 of 1884.

In Thompson vs. New Orleans Ry. & L. Co., the plaintiff was injured on April 12, 1915, and he filed suit on April 7, 1916, within one year after his injuries. After answer filed and before judgment could be obtained, he died, on December 4, 1916. The mother was then substituted as party plaintiff, not claiming the right of action by inheritance but by transmission under Art. 2315 and its amendments. The defenses urged in this cited case were, first, that the action had abated upon the death of the son, just as it is now claimed in the instant case that this suit brought by the brothers and sisters of Kerner had abated by the death of Kerner’s mother. The Supreme Court, considering this point, definitely held that the exception and plea in abatement was properly overruled. The second defense in this case was that the right to claim damages was personal to the original plaintiff, and was only reserved to those of his kin named for the space of one year should he die before exercising his right of action. The court held on this point quite to the contrary, and found that the statute provided that the right of action should survive in cases of death of the injured party in favor of the beneficiaries named in the statute, regardless of whether the injured party had exercised his right of action for damages ex delicto or not and had died before judgment was rendered.

The ruling of the court in this Thompson case was in conformity with a previous ruling by the Supreme Court in the case of Payne vs. Georgetown Lumber Co., Ltd., 117 La. 983, 42 South. 475, where similar facts to those in the Thompson case had arisen. In the Payne case the injured party filed suit on September 24, 1904, and on August 21, 1905, he died before trial of the suit from some other cause than the injury sustained. After his death, his mother and brothers and sisters were made parties plaintiff on their own petition. All of these substituted parties claimed a right of .action based upon an inherited right, the mother claiming that she had inherited the whole right of action under Art. 2315 of the Code, and, in the alternative, she claimed that she inherited one-fourth if the brothers and sisters were held to have inherited three-fourths. The brothers and sisters averred that they were entitled to three-fourths of whatever damages might be recovered. Pleas of abatement of the action were urged in this case as in the Thompson case, and the court, affirming the ruling of the trial court, to the effect that the exception or plea of abatement was not well founded, held that the mother, to the exclusion of the brothers and sisters, was entitled to bring the action, holding, among other points of decision, the following:

“The argument that the right of action abated because decedent brought suit to enforce it within his lifetime, is without' merit. An action cannot expire or abate when the law declares that it shall survive in favor of certain persons. The amendment of 1855 was supplemented in 1884 by another amendment, giving the same relations of the deceased an independent right of action to recover the damages sustained by his death.” (Payne vs. Georgetown Lumber Co., Ltd., 117 La. 983; 42 South. 475.)

In all of these cases hereinabove discussed, the jurisprudence points clearly to the consistent ruling that judicial interpretation would not justify the granting by implication, of a right of action to a party or parties not named or classified in the statute, and to the additional ruling that the death of the party or parties possessed of a right of action does not abate the right of action if there is one or more beneficiaries living at the time of the death of the injured party. In the present case, however, the question for determination is whether Article 2315, as amended, extends or grants the right of action by way of transmission from one classified beneficiary to another beneficiary subsequently' classified. This question, as heretofore noted, has not been squarely determined in Louisiana.

We are referred to several common law authorities cited in brief of counsel for defendants, some of which appear to support defendants’ contentions, but in the absence of specific and applicable jurisprudence of our own Supreme Court concerning Article 2315 and its amendatory developments, we do not consider this court bound by the common law rulings, especially as the history (See Underwood vs. Gulf Refining Co., 128 La. 990, 55 South. 641, and Flash vs. La. West. Ry. Co., 137 La. 352, 68 South. 636) regarding the development of Article 2315 (formerly Article 2295 of the Code of 1825) manifests, in our opinion, the plain intention of the Legislature to extend and confer this right of recovery upon the close relatives of the injured party, in their respective rights of succession, as stipulated in the article.

Immediately after the ruling in Hubgh vs. N. O. & C. R. R. Co., 6 La. Ann. 498, rendered in 1851, the Legislature of this State and the courts began to frown upon the old doctrine that a right of action could not survive in favor of a relative of the deceased injured party. And, indeed, the approval of this new and just viewpoint is forcibly expressed by Justice Manning in Van Amburg vs. V. S. & P. Ry. Co., 37 La. Ann. 650, decided in 1885, where the right of action in favor of the mother of a deceased injured son was denied solely because of the fact that the action had been brought only a few days too late to have this right, secured by amendment of. Act 71 of 1884, recognized. There Justice Manning said:

“The second item of damage cannot be considered. Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier, that the Roman Digest, reproduced therein and echoed by the courts of all countries, from then till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains and refusing them for a long-life sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort and even the necessary stays of life. Legislation has at least come to the relief of future sufferers. The Act of 1884 applies the remedy that the public conscience has long demanded, but it missed application to this case only by a few days. That Act was approved July 10th and took effect in Bossier on the-30th. The accident and death occurred on the 25th of that month.”

The entire Article 2315 as it now reads and which has been the law of this State regarding damages recoverable by the injured party or certain relatives, contains throughout the two paragraphs constituting this Article, the repeated and reiterated words “survive”, “survivors”, “surviving spouse, etc.”, as well as the clause frequently used, to-wit: “In default of”. These words, accepted in their most common sense interpretation, can mean nothing else but that, in the event of the death of the injured party or the death of any one of the beneficiaries now given the right of asserting the causes of action growing out of the death of the injured party, shall not abate but shall survive' and' exist throughout the prescriptive period of one year from the death of said injured party.

Again considering the ruling in Thompson vs. N. O. Ry. & L. Co., 145 La. 808, 83 South. 19, we find the court giving the common-sense application to the word “survive” and the definition thereof, as set out in Webster’s Dictionary, as follows:

“The right of this action (says the court) shall survive, that is, it shall ‘live’. To survive is:
“ ‘To continue to live or exist beyond the life or existence of; to continue to live or exist beyond a specific period or event; to live through in spite of; live on after passing through; to remain alive; exist in force or operation beyond any period specified’. Webster.”

We find in Standard Dictionary, the phrase “in default of” to be defined as “owing to lack or failure of”.

The Oxford Dictionary gives this same phrase the following interpretation:

“In default of, if, or since such a thing is wanting.”

These, among other definitions of such phrases or words, are but common-sense interpretations of the thought intended to be conveyed. Applying them to the words and phrases used, in the Article 2315, it follows that if at the time of the death of the injured party his first-named survivor does not exist, because the accident of death has likewise removed this survivor, then the succeeding beneficiaries in the . order named shall, in default of the first survivor, enjoy all of the benefits to the right of action with which the first survivor was originally vested.

In the instant case, if the theory of the law contended for by exceptors be maintained, might it not be said that if the mother, who, in fact, first asserted this right of action, had been — under circumstances most fortunate to the tort feasors— a passenger in the wagon with Kerner and his wife, and if the mother, being injured, likewise had died within a few hours after having survived the husband, then no right to the cause of action falling first to the husband on his own behalf and as a “spouse”, and then to the mother, but asserted by neither of them, could have passed to even Kerner’s. brothers and sisters or either of them? Thus would the tort feasors be wholly relieved of any liability which could have been justly imposed upon them for the negligent act which caused the deaths in question.

If this be the law, then follows the effect of such law, that all of the amendments to Article . 2315 would be repealed by judicial interpretation rather than legislative mandate, with the result that the Article in question would be restored to the narrow limitations of liability- established in Hubgh vs. N. O. & C. R. R. Co., 6 La. Ann. 498.

We are of the opinion that the exceptions of no right or cause of action in the present plaintiffs to bring this suit are not well founded.

It is, therefore, ordered that the judgment appealed from be and the same is hereby reversed and set aside, and it is now ordered that this case be remanded to the district court for further proceedings, in accordance with this ruling. Costs, under this ruling, to await final judgment.


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    No. 9592.
    Orleans Appeal.
    MR. AND MRS. SAMUEL MARCUSE v. ISADORE SHAPIRO, Appellant.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana .Digest, Judgments, Par. 28; Landlord and Tenant, Par. 31.
    A stipulation in a written contract of lease granting lessee “privilege to sub-lease providing tenant is suitable to owner”, reserves to the owner or lessor an arbitrary right of withholding that which is a mere privilege. It conveys no en-forcible right in favor of the grantee or lessee, justifying the latter’s failure to pay rent when due. Such a defense in suit for recovery of rent accrued is neither valid, legal nor sufficient in law, and entitles plaintiffs to a judgment by rule, on the face of the pleadings, in conformity with Acts ■ 157 of 1912 and 300 of-1914.
    Appeal from Civil District Court for the Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    Judgment for plaintiff on the face of the papers. Defendant appealed.
    Judgment affirmed.
    Chas. Rosen and Louis L. Rosen, attorneys for plaintiff and appellee.
    Milling, Godchaux, Saal & Milling, attorneys for defendant and appellant.
   BELL, J.

This is an appeal taken by defendant from a judgment rendered against him on the answer filed by him. The judgment was predicated upon a rule for judgment, filed by plaintiffs, wherein it was set forth that defendant’s answer did not show any valid or legal defense, was insufficient in law and entitled plaintiffs to a judgment on the face of the pleadings.

We have not been favored by any brief from appellant. The facts of this case, as shown by all pleadings, we find to be accurately stated in plaintiff’s brief, as follows:

“The plaintiffs claimed $1,080.00 rent for leased premises, Apartment B of 2724 Napoleon Avénue, a portion of an apartment house in this city, for the 12 months’ unexpired portion of- a 23-month lease, that is from October 1, 1923, to September 30, 1924, at $90.00 per month, on the ground that the unpaid notes had, by the terms of the lease, become exigible through the lessee’s refusal to pay the note which fell due on October 31, 1923.
“The lease was dated November 16, 1922, was for 21 months beginning January 1, 1923, and ending September 30, 1924, at $90.00 per month (with privilege to occupy the premises beginning December 1, 1922); and the lease provided that if any one note was not paid at maturity, all should become due with 10% attorney's fees.
“The answer of the defendant was that at the time he signed the lease, his family consisted of himself, his wife and a child of about one and a half years of age, which had already started to walk; ‘but that he and his family never occupied the said leased premises’; that on the contrary, he sub-leased the premises, ‘with the consent of plaintiffs’, to one G. C. Carveth for the period commencing January 15, 1923, and ending September 30, 1923, at $70.00 per month.
“That said Carveth attempted from time to time during the term of said sub-lease to cancel the same and vacated the premises on September 30, 1923.
“That defendant attempted to get another sub-tenant and caused a number of ‘prospective’ sub-tenants to be ‘tendered to plaintiffs’, all of whom were refused unreasonably and without just cause.
“That, on or about August 27, 1923, ‘there was tendered; to plaintiffs as a sub-tenant, one E. C. Slaughter, a respectable, refined, responsible person, who signed a written ‘offer’ to sub-lease said premises from October 1, 1923, to September 30, 1924, at $70.00 per month; that the family of said Slaughter consisted of himself, his wife, and one child, but that plaintiffs unreasonably and without just cause rejected the said Slaughter ‘as a sub-tenant’ solely and because of his having a child of about five years, of age, although his offer of sublease ' has been accepted by defendant.
“He averred that there was no provision in the original lease that no child or children should be permitted in said premises; that the defendant had a child of -about one and a half years of age /in his family’ at the time said lease was entered into and that the action of the plaintiffs in rejecting the numerous sub-tenants ‘tendered by defendant’ merely because there was a child or childrn in the family was unwarranted, unjust and unreasonable and the cause of great damage and injury to respondent.
“The answer then proceeds to aver that on account of the actions of plaintiffs, respondent, in order to minimize his damages, ‘was finally compelled’ to sub-lease the premises from November 15,' 1923, to September 30, 1924, at $55.00 per month, whereby he lost the rent for October, amounting to $90.00, lost $62.50 on the November rent, and ‘will lose’ $35.00 per month for the other ten months, or a total of $502.50, whereas, had said sub-tenant Slaughter ‘been accepted by the plaintiffs as he should have been’, respondent’s loss would have been only $240.00, ‘which he was willing to assume and bear,’
“The answer also alleged that defendant denied that he had refused to pay the tenth note, but, on the contrary, he avers that in payment thereof he tendered ‘his check’ for $90.00, which was refused; but this is subsequently stated in the answer to be that in order to avoid trouble and litigation, he had ‘as a matter of compromise’ offered to pay the rent at the rate of $90.00 per month, but that ‘his cheek’ for $90.00, covering the rent of October, 1923, was rejected. When this tender was made he does not state.
“Assuming the position of plaintiff in re-convention, he claimed he had been injured and damaged by the unwarranted and unjust actions of plaintiff in the sum of $262.50; wherefore he prayed for judgment in his favor against plaintiffs, in solido, in the sum of $262.50.
“The lease contained the following provision inserted in handwriting: ‘Privilege to sub-lease providing tenant is suitable to owners’, and the following printed provision: ‘Lessee binds himself « * * to make no sub-lease without written consent of lessor.’ ”

The merits of this case are not before us for consideration, the sole question being whether the allegations in defendant’s answer and reconventional demand sufficiently set forth any valid or legal defense or plea within the provisions of the pleadings and practice Acts — 157 of 1912 and 130 of 1914. We think they do not and that the judgment of the trial court should be affirmed for the following reasons:

1. Defendant does not deny any of the material allegation of plaintiff’s petition.

2. Defendant admits the existence of the lease sued upon, and that he has purposely withheld the rent for which he is in arrears after making an alleged tender of one month’s rent in an alleged manner plainly insufficient in law and only in the spirit of a compromise, to which plaintiffs are not shown to have ever agreed.

3. That defendant, as plaintiff in re-convention, does not pray that plaintiff’s demand be rejected, but that only he, in turn, be given judgment for damages, actual and anticipatory, and which he suffered under facts not supporting a legal and sufficient cause of actio'n.

The clause in the lease granting “privilege to sub-lease providing tenant is suitable to owner”, must be strictly construed against the lessee. (Montecon vs. Faures et al., 3 La. Ann. 43; Cordeviolle vs. Ridon, 4 La. Ann. 40.)

The right to sub-lease, even though it be termed a “privilege”, is, when coupled with a proviso that the sub-tenant be acceptable to owner, naught else but a stipulation wholly in favor of the lessor. (Henderson vs. A. Meyers & Bro., 45 La. Ann. 797, 13 South. 191; 24 Cyc., 967.)

The withholding of such a privilege from the lessee can never justify him in withholding the payment of rent as accrued. His remedy, if any, is by direct action for enforcement of what may be shown to have been a specific right, wholly exercisable at the will of the lessee. No such facts are shown to exist from the pleadings before us.

In the case of Bailey vs. Walker & Co., Inc., 290 Fed. 285, the Appellate Federal Court of the District of Columbia, affirming a judgment dissolving a lease because of tenant’s violation of the covenant not to sub-lease, held:

“There can be no question, and the authorities are ample on this subject, that a covenant against sub-letting is for the benefit of the landlord, because it is regarded as for his interest to determine who shall be a tenant of his property.”

When defendant accepted the lease here sued upon and subscribed particularly to the clause relating to the condition of a sub-lease, viz.: ’ that the party sub-leasing the property must be suitable to the lessor, he yielded to the lessor the right o'f being the sole judge of whether the sub-tenant was suitable. Such a contract, however ill advised and however pregnant with possible obstacles regarding a sub-lease, was made with the eyes of the defendant wide open, and he cannot be heard to complain against a legal stipulation which might result to him disastrously; His opinion that the refusal of the lessor’s consent was unreasonable, does not give him a legal right to so plead in avoidance of the main obligation to pay the rent. Similar reasoning was expressed in the case of McCarren vs. McNulty, 7 Gray 139, 141:

“It may be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish materials for a compensation, the payment of which Was made dependent upon a contingency so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that, he was the sole judge. Against the consequences resulting from his own bargain, the law can afford him no relief.” (See also 9 Cyc., 620; Campbell Printing Press vs. Thorpe, 36 Fed. 414, 418; 1 L. R. A. 645.)

A careful examination of defendant’s pleadings made in this suit in form of an answer, convinces us that the defense to this suit is wholly insufficient in law, and that the relief granted to plaintiffs on the rule for judgment, in conformity with Acts 157 of 1912 and 300 of 1914, was well founded.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from herein be and the same is hereby affirmed, at defendant’s costs in both courts.


text:
    No. 9710.
    Orleans Appeal.
    RANDOLPH DENNIS v. MRS. EMILY KYLE, Appellant.
    (November 3, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Citation and Appearance, Par. 23.
    A citation addressed to a married woman and served at her domicile in the hands of her husband- residing there is a valid foundation for a judgment.
    (Act 179 of 1918 and Code Practice, Art. 192. — Editor’s Note.)
    2. Louisiana Digest, Appeal, Par. 430.
    In the absence of evidence in the record the presumption is that the trial judge had sufficient evidence before him to justify the judgment.
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit for a real estate broker’s commission. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    McGee & Dobbins, attorneys for plaintiff and appellee.
    L. H. Gosserand, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit for a real estate broker’s commission.

Plaintiff averred that he secured from the defendant .the following contract:

“I hereby appoint R. Dennis my exclusive agent and authorize my agent to sell my property known as No. 37-38 Rosemary Street for the price and sum of Eight Hundred Dollars. When this property is sold I agree and bind myself to pay my agent a commission of net. It is understood and agreed that my agent’s labor ceases when the deposit is put up. My agent is authorized to accept a deposit of 10% of the purchase price and in case of suit by my agent to enforce this contract, I will pay 25% attorney’s fees.
Remarks: “It is agreed that agent’s commission will be any amount earned above price set by owner.”
Signed: “Mrs. Emily Kyle.”

The plaintiff further averred that he advertised the property, and endeavored to sell the same, and secured an offer of $900 cash; that when he presented the offer to the defendant she informed him that she had placed the sale in the hands of another real estate broker and had already accepted an offer procured by the other broker. Plaintiff prayed for $100 commission and $25 attorney’s fees.

The citation was served on May 26th at defendant’s domicile in the hands of her husband.

She failed to answer and judgment by default was taken against her on May 30, 1924.

After an ineffectual effort to obtain a new trial the defendant appealed.

The appellant has made no appearance in this court except by brief, after the case had been argued and submitted by plaintiff and appellee.

In her brief the defendant avers that she ‘was never apprised of the suit filed against her until after judgment was rendered”.

As we have stated above, she was “apprised of the suit filed against her” by a citation addressed to “Mrs. Emily Kyle”. The Sheriff’s return upon this citation is as follows: “On the 26th day of May, 1924, served a copy of the within citation and accompanying petition on Mrs. Emily Kyle, defendant herein, by leaving the same at her domicile, 1221 N. Tonti, on the hands of Dr. Kyle, her husband, a person apparently over the age of 18 years, living and residing in said domicile, whose name and other facts connected with this 'service I learned by interrogating the said Dr. Kyle, her husband, the said Mrs. Emily Kyle being absent from her domicile at time of said service.”

No illegality has been pointed out to us in the citation and return and we have detected none. “In suits against married women service shall be made in. person,. or at her domicile, as in the case of any other person.” Act 179 of 1918, p. 335, S. 3; S. 18. “The return of the Sheriff or Constable shall be conclusive, unless directly attacked; but the attack may be by rule in the same proceeding, if before judgmént, but after judgment can only be (by) direct action, but in the same proceeding.”

This is the mode provided by law of “apprizing a defendant” that a suit has been filed against him, and it is not in the power of this Court to require any other or further formality.

Defendant further complains that this is a suit to hold her liable “individually and that she has not had a chance to present her side, although she claims to have a serious and valid defense”.

She has had her opportunity, but she did not avail herself of it. The law favors the vigilant.

The last contention is that the record contains no evidence to support the judgment. The presumption is that the necessary evidence was produced to the trial judge. If it was not in writing, the appellant should have procured a statement of facts. No. 7697 Ct. App., Beauregard Furniture Co. vs. Saladin, No. 9406.

The appellant has not shown that there is error in the judgment appealed from and it is therefore affirmed.