author: Monroe, J. Monroe, J. Breaux, J.

text:
    No. 13,683.
    S. R. Prentiss vs. John J. Lyons et al.
    Syllabus.
    1. Where an answer to an appeal, asking for an amendment of the Judgment, is not filed three days before the first fixing of the cause for argument it will not be considered.
    2. The provisions of a contract, like those of a statute, are to be construed together so as to give effect to all, if it be possible to do so. But where a particular provision is in irreconcilable conflict with the letter and spirit of the contract, taken as a whole, and the evidence shows that the presence of such provision is attributable to accident rather than design, and that it is meaningless and without application, it will be regarded as not written.

      3. Where, by the terms oí a contract, payments are to be made on the first day ol every month, but the party to whom they are due has notified the other that ho does not intend to be exacting about it, and in point of fact, during perhaps six consecutive months, no payment is made on the first day of the month, the party owing the payments will not be held to have forfeited his rights under such contract by failure to pay upon the first day of the seventh month. ,
    On Rehearing.
    In injunction proceedings, the delay of a few days in matter of cutting down trees and hauling them to the market is not of itself ground for damages, particularly as it appears that the delay occasioned did not result in parties losing on the value of their logs.
    The profits claimed by defendants are not shown to an extent sufficient to make them the basis oí a decree for damages. The item of damages growing out of asserted profits that would have been realized is disallowed.
    APPEAL from the Fifteenth Judicial District, Parish of Oaleasieu— Miller, J.

      JR. P. Williams, for Plaintiff, Appellant.

      Pujo & Moss, for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

On application for rehearing by Breatjx, J.

Statement of ti-ie Case.

Monroe, J.

Plaintiff, alleging that a contract under which the defendants were cutting timber from certain lands owned by him in Calcasieu parish had expired by limitation, or, in case that it should be held not to have expired, that it had become void by reason of noncompliance on the part of the defendants, brought this suit to have it so declared, to restrain the further cutting, and to recover for timber said to have been cut before, and after, the alleged expiration, or forfeiture, of said contract; and he caused-a preliminary injunction to issue, restraining the defendants from proceeding with such cutting during the pendency of the suit. The defendants claim that the contract in question has neither expired nor become void, and allege that they are entitled to proceed with the cutting of timber agreeably to its provisions. They further allege that by reason of the injunction they have sustained certain losses up to the date of the filing of their answer, and have been otherwise injured by the charge of trespassing circulated against them by the plaintiff, upon which accounts they set up a claim in reconvention.

There was a verdict and judgment sustaining the defendants’ interpretation of the contract and awarding them $812 for the loss of profits occasioned by the injunction, and also allowing the plaintiffs for 270,474 feet of timber, which was found to have' been cut and scaled, but not paid for. From this judgment the plaintiff has appealed. The case was set down for argument in this court December 3rd, 1900, but was continued upon the motion of the counsel for the defendants. Upon December 31st, following, an answer to the appeal was filed, “without prejudice”, in which the defendants ask that the judgment bo amended by increasing the amount of the award, in their favor.

It appears from the record that the plaintiff resides in Maine and has no other occupation than the handling of timber lands, mainly belonging to himself and his family, and situated in Maine, in Louisiana, and probably elsewhere. For the purposes of this business, as conducted in Maine, he seems to have been in the habit of using a printed form of contract, the blanks in which would be filled up as occasion might require. Precisely how the negotiations werd begun which resulted in the establishment of business relations between him and the defendants does not appear, nor is it material. It is sufficient to say that it had come to be understood between them, doubtless by correspondence, that the defendants were willing to pay at the rate of two dollars per thousand feet for the privilege of cutting timber from about 900 acres of the land owned by the plaintiff in the parish of Calcasieu, and that the plaintiff was willing that they should do so. This was, probably, in March, 1899, and the plaintiff, who had never met the defendants, and had not been in Louisiana since about the year 1892, filled up, according to his ideas, one of the blank contracts, or “permits”, as he calls them, which he was in the habit of using in Maine, and forwarded it by mail to the defendants, for their consideration and approval.' The defendants thought proper to make 'certain changes in the projet thus submitted, and accomplished it by copying the instrument, including the printed matter, and embodying the changes in the copy, which they signed, and enclosed to the plaintiff in a letter dated April 3rd, 1899, suggesting at the same time that he, in turn, should make such corrections as he thought proper and submit the same to them. Upon April 6th, accordingly, the plaintiff' wrote:

“ Enclosed, I hand you back one copy of the permit, rec’d this morn- “ ing, with some interlinings and additions that seem to me essential, “ signed by me, and if it meets your view you can go to work at once and “ then send it back to me and I will make the same changes in the “ other copy and send it back to you, signed. Your clause about a new “permit was too sweeping, and might be considered to mean all my “ lands in Calcasieu parish. I will gladly give you a new permit when “ you are through with this one, but I want to get acquainted with you “ first, and see how we come out on this one, and I shall come down to “ La., and meet you personally before that. Don’t be scared at the de- “ fault of payment cláuse. I shall not jump on you if anything unex- “ pected or unavoidable happens.”

This amended offer, which was signed by the plaintiff as of date April Ith, 1899, appears to have been accepted by the defendants and was signed by them accordingly.

The contract, as thus made, contains the following, among other • provisions, to-wit: “This agreement or conditional license, or permit, “ * * * witnésseth:

“ 1st. That the said party of the first part hereby grants permission “ to the said second parties, during the ensuing logging season only, to “ enter with teams upon the east half of the northwest quarter * * “ * in the parish of Calcasieu * * * and to cut and remove “ therefrom all of the merchantable yellow pine timber thereon 'of the “ dimensions hereinafter stated, upon the following terms and condi- “ tions, to-wit:
2nd. Said second parties shall cut and remove therefrom all the “merchantable pine timber within the compass of the land hereinbefore described, as they progress, having a diameter * * for
“'which said yellow pine timber said second parties shall pay to said “first parties two dollars per thousand feet * * *”
“ 3rd. Said payments shall be made in cash, by New York or Boston “' exchange, on the first day of each month, for all timber shipped dur- “' ing the previous month, and if default shall be made on any payment, “ then the said party of the first part, Prentiss, mayvdeelare this license, “ of permit, void.”
“ 4th. - Said second parties agree to ship 150,000 to 300,000 feet per “month, and more if possible.
-* *•**«•**
“ 6th. It is further agreed that all timber cut under this contract “ shall be scaled and measured by some competent person mutually “ selected by the parties hereto.
-» * * ' * * * *
“7th. * * * it shkll be the duty of said scaler upon the meas- “ urement of any logs by him to furnish statements thereof to each of “ the parties hereto, which scale and measurement when so made shall “ be final and conclusive.
* * -x* # * *
“ 9th. It is further stipulated that when the said second parties “ shall have denuded the above described lands of all the yellow pine “timber of the dimensions and qualities hereinbefore set forth, they “ are hereby granted the privilege of having a new permit upon some “ of Prentiss’ adjoining lands.
“ 10th. It is further agreed that, when all the logs of the dimensions “'and quality hereinbefore set forth have been cut from the above de- “ scribed lands, the said second parties shall pay for those -not shipped, “ by the measurement and at the price above specified, and shall be “ allowed ninety days from said final settlement within which to remove “ said logs,” etc.

It is admitted that the land embraced in the contract contained about 8,000,000 feet of timber such as thd contract calls for, and that the plaintiff has over 20,000 acres besides in the parish of Calcasieu. Tire parties agreed upon a scaler and the work of cutting timber went on to the apparent satisfaction of both sides. The remittances called for were not forwarded exactly upon the first day of each month but there was no complaint on that score from the plaintiff, save once, when there was an unusual delay in remitting for the timber shipped in July, which delay is explained by the fact that the scaler did not furnish the figures. In the month of October, the plaintiff came to Louisiana and visited the defendants, and their camp upon his land. He had some conversation with them about the manner in which the 'timber was cut, and indulged in the criticism that there was some waste and that the trees should be cut nearer the ground, and that the sawyers should work on their knees, with pads under them. But he was informed that the sawyers in Calcasieu would not work in that way. He also rather urged that the defendants should accept, and pay for, a certain quality of timber designated as “red heart,” which he was informed was' absolutely unmerchantable. There was, however, nothing unpleasant between him and the defendants and he appeared to be satisfied that they were complying with their contract, so that, as he was about leaving for his home, in November, 1899, he said to them, “just go ahead and take such timber as you wish and try to prevent waste.” The next communication which the defendants received from him was a letter, dated at Bangor, Me., December 11, 1899, in which, after acknowledging the receipt of a check, and referring to the men who had been employed as scalers, he wrote: “ I had expected, when I made the permit, “ that you would have taken, the timber cleaner and not left so much “ on the ground, but we have talked that over before, and I shall not “ make any fuss about it as the time left is so short and you will prob- “ ably not cut more than 150,000 feet this month, anyway, and I wish “ you would confine yourself to the ground you are already cutting on “ and not commence on any new 40 during the balance of the month, “ and stop cutting entirely on the thirty-first, and if the wet weather “ bothers, you need not continue to cut the rest of t'he month, but can “stop now if you wish to. I suppose your logging season probably “ terminates in November, but as the month is so far advanced, it may “ as well run through to the end of the year.” To this the defendants replied, December 19th, saying, “Tours of the 11th instant reached “ us in due course of mail and we must say that we are very much sur- “ prised at its contents, especially whereby you notify us that our con- “ tract to cut and remove the timber off the land described therein will “ expire on the thirty-first of the month. When you visited us during “ the month of November you made no mention of you: desire or inten- “ tion to attempt to abrogate our contract, but, on the contrary, stated “ that you wanted us to go right ahead and take the timber. We con- “ sider that you have no right to abrogate, amend, or modify our contract * * *. On the faith of this agreement, and contract, we “ have expended large sums of money. * * * . Our contract clearly “'states that we shall cut and remove all the mer’c’t. yellow pine timber “ on the land described therein, and had this provision not been in the “ contract we should not have signed it. We expect to cut and remove “ all the timber from said lands and to pay for the same in accordance “ with our agreement,” etc.

To this the plaintiff replied, by letter dated December 26th, saying: “ I am surprised that you should consider the permit as perpetual when “ the first clause in it distinctly states that it is for the ‘ensuing log- “ ging season only’, and that means the ensuing Spring, Summer and “ Eall, which is the logging season in La. Logs can be cut in the win- “ ter down there, but that is not the usual logging season, which begins “ in the Spring and ends in the Eall, and every lumber man and mill “man and business man of whom I asked the question gave but one “ answer, that the logging season was in the summer and not in the “winter, * * * at all events, whether you are convinced or not, “ do not cut down another tree after Dec. 81st, as I forbid it until this “ matter is settled, but you can go on hauling what you have cut.”

This was followed by a letter dated Jan. 10, 1900, in which the plaintiff says: “ The payment for timber shipped from my land during the “month of December, 1899, * * * not having been made on Jan. “ 1st, 1900, or received as specified in the third clause of said permit, I “ hereby declare the license, or permit, void.” To which the defendants replied, Jan. 22, 1900: “We noted in your’s of the 10th, 1900, that you “ claim our contract with you for timber lands void for the reason “ that we did not pay :-for December scale on January 1st, 1900; “ it was impossible to send it on the first as the scale was not finally “ made out until later, and as you had accepted such payments, in the “ past, after the 1st, you now have no right to declare the contract void “ without previous notice before the end of the month. We have one of “ your letters in which you said you would not exact impossibilities; it “ appears now that you do.”

No further steps appear to have been taken by the plaintiff at that time, and the defendants went on cutting timber and remitting for the same; the plaintiff receiving the remittances, as he says, “on account”, until April 10, 1900, when the plaintiff visited Calcasieu and instituted this suit.

Upon the subject of his understanding of what is meant by the term “logging season”, the plaintiff gives the following testimony at different times in the course of his somewhat protracted examination: He states that he consulted an attorney when he was in Calcasieu, in November, and submitted to him the contract between defendants and himself in order to obtain information as to al particular clause, and the cross-examination proceeds thus:

“ Q. — There was no question about the logging season ?
“A.- — Yes, sir; I talked to a number of people, I say so in the letter, I did not know prior to that time that it was possible to haul a log in the winter, did not know it could be done.
“Q. — What is your logging season in Maine?
“ A. — We eall it generally a logging year. Up there it begins in lire fall of one year and runs into the winter of the next. It is in two years, it begins in November and runs as late as April.”

At another place we find:

“ Q. — At the time of the execution of this license or permit, Mr. Prentiss, what did you understand it to mean by the term ‘logging season’, in this country, and what meaning did you intend to convey by signing an agreement with that expression in it ?” (This question was objected to by the counsel for the defendants, and the objection having been overruled the witness answers).
“ A. — I meant spring, summer and fall — the- dry season, up to December 31st — not the whole year, but just a part, from the time of the permit date until the rain should commence and it was so wet in the woods that they could not haul to advantage, and not later than the end of the year.
“ Q. — Would you, at that date, have signed a permit for a longer period than the end of the year?
“A. — I would not.”

At still another place:

“ Q. — When do you have your logging seasons in Maine, and explain them ?
“ A. — It begins in October and extends till the following April.
“ Q. — You mean the logs are cut then?
“ A. — They are cut and piled in the woods.
“ Q. — When are they cut ?
“ A. — In October, November and December.
“ Q. — When are they hauled to market ?
“A. — They are hauled to the streams in January, February, March, and April, they are hauled on sleds, in the snow.”

The defendants testify that they expended fifteen hundred to two thousand dollars to equip themselves for the purposes of the contract with the plaintiff and that they would not have entered into said contract for the limited period which the plaintiff claims to have been covered by it. A number of witnesses were examined with a view of ascertaining whether there is any such thing as a “logging season” known in the parish of Calcasieu. And, almost, if not quite, without exception, they testified that they had never heard the term used until' they heard it in connection with this suit. It was also shown that there is not a person or firm engaged in the timber business in that part of the country that does not prosecute the work of getting out timBer continuously from one year’s end to the other. Three witnesses, who were examined for the plaintiff, undertook to testify as to the season of the year to which the term “logging season” should, or might, be applied, but they differed upon the subject, neither undertaking to say that, as a matter of fact, the term is ever used or applied, and they all admit that “logging”, in Calcasieu, is carried on throughout the year. And quite a large number of witnesses, examined on behalf of the defendants, testify to the same effect. Upon the subject of the damage claimed by the defendants, the evidence shows that their operations had been held up by the injunction, at the time of the filing of their answer, for thirty-five days, during which they were at the expense of paying certain of the employees, and feeding their stock, and that had they not been so arrested they would have made enough to have paid their laborers, fed their stock, and put twenty-three 20-100 dollars, per day, as profits, into their pockets. The amount allowed by the judgment to the plaintiff is not disputed. Erom the particular expression out of which this suit may be said to have arisen, i. e. “during the ensuing logging season only”, as incorporated in the printed matter contained in the forms used by the plaintiff in Maine, one of which was sent out here and served as the basis of the contract entered into between the parties litigant, and from other language in the said printed matter, it is evident that contracts usually made upon such forms do not contemplate the absolute denuding of the lands to which they relate, of its timber.

Opinion.

The answer to the appeal and the prayer for the amendment of the judgment not having been filed three days before that upon which the case was first fixed for argument, cannot be considered. C. P. 890. Converse, Kennett & Co. vs. Str. Lucy Robinson, 15th Ann. 433; Barrett vs. Donovan, 17th Ann. 182.

On the merits, it is plain that the serious question in the case is, what effect, if any, is to be given to the language which limits the operation of the contract between the plaintiff and defendants to the “ensuing logging season only” ? From the statements which have been made, it is apparent that the contract in question must be regarded as having been made- in the parish of Calcasieu, to be executed there. And it is equally apparent that the term “logging season” is practically unknown in that parish, in which, although the getting out of timber is an important industry, not an individual was to be found to assert that he ever heard of its being used in a contract, that he would understand definitely what was intended if it were used, or that there is any person or firm engaged in “logging” in said parish,-who does not “log” continuously, as well at one season of the year as at another. The language as used is therefore without application, and if the contract had been altogether prepared by persons living and engaged in the timber business in the parish of Calcasieu, its presence therein would be difficult of explanation. But we have seen that the form, or pro jet, upon which the contract in question was built, was sent by the plaintiff from Maine, where the term “logging season” has meaning and application, and that said term was printed therein, as part of a formula in common use, in Maine, which explains where it came from, but leaves for explanation why it was left in a contract which was to be executed in the parish of Calcasieu, where it has no meaning or application.

The burden of this explanation rests upon the plaintiff, since, as between him and the defendants, the term originated with him. And the explanation offered, i. e., that it was intended to apply to a known condition, or custom, existing in the place where the contract was to be executed is unsatisfactory, because it is not supported by the fact, and because a further explanation is at once required. There is, as we have seen, no “logging season” in Calcasieu; but if there were, how could the limitation of the term of the contract to the logging season, which the plaintiff professed to believe terminated in November, 1899, be reconciled with the several provisions of the contract which call for the cutting and removal of all the merchantable timber, and the denuding of the land, to be followed by a similar contract with respect to other lands owned by the plaintiff?

It will be observed that whilst the words “the ensuing logging season only” find their way into said contract as part of the printed form used as a model, and which was sent by the plaintiff from Maine, there is other language, and there are other conditions incorporated in said contract, which were deliberately written therein as original matter, and which distinctly express the idea that the defendants are to take all the merchantable timber on the 900 acres in question, of a certain quality. Thus, in the first paragraph, in which the “logging season” is mentioned, it is said that the defendants are to remove “all the merchantable yellow pine timber thereon upon the conditions hereinafter stated”. In the second paragraph, it is stated: “Said second parties shall cut and remove therefrom all the merchantable pine timber within the compass of the land hereinbefore described, as they progress, having a diameter,” etc. In the fourth paragraph, we find, “Said second parties further agree to ship from 150,000 to 300,000 feet per month, and more if possible.”

The ninth paragraph reads: “It is further stipulated that when the said parties shall have denuded the above described lands of all the yellow pine timber, of the dimensions and qualities hereinbefore set forth, they are hereby granted the privilege of having a new permit oh some of Prentiss’ adjoining lands”. The tenth paragraph reads: “It is further agreed that, when all the logs of the dimensions and quality hereinbefore mentioned have been cut from the above described lands, the said second parties shall pay for those not shipped * * * and shall be allowed ninety days from said final settlement within which' to remove said logs from the forest.” Etc.

In connection with these provisions there is, also, to be considered the statement in the plaintiff’s letter of April 6th, 1899, viz: “Your clause about a new permit was too sweeping, and might be construed to mean all my lands in Oalcasieu parish; I will gladly give you a new permit when you are through with this one”, etc. The plaintiff knew perfectly well, and he admits it in his testimony, that there were eight million feet of lumber on the land which was affected -by the contract, and he also knew' that the contract required the defendants to take not less than one hundred and fifty thousand feet and not more than three hundred thousand feet per month, so that there was no probability of their denuding said land, or getting through with the contract into which they were entering within the few months which he now claims constitute the logging season. Again, it would have been a most remarkable thing if the plaintiff, believing that the contract had about expired when he visited the defendants, in November, 1899, had discussed with them their method of cutting, the questions of their taking “red heart” as merchantable timber, and other matters, and had finally left, telling them to go on with their cutting and not to waste more than they could help, or something to that effect, without saying a word about the contract having expired, or being about to expire, or about the duration of the logging season. All of these circumstances lead us to conclude that the “logging season” expression was left in the contract rather by accident than design, and that it must be considered as overborne by the other stipulations, to which attention has been called.

As to the claim that the defendants forfeited their rights, by failure to pay, on January 1, 1900, for the lumber shipped by them during December, 1899, it is clearly too inequitable to be entertained. The defendants had complied with the spirit of their agreement by forwarding their remittances a few days earlier or later as they got the figures from the scaler, who was the common agent to whom they were obliged to look, and the plaintiff had been content. And he cannot be allowed to start up suddenly, after thus throwing the defendants off their guard, and exact the forfeiture of their rights as a penalty for something in which up to that time he had acquiesced. Bigelow on Estoppel, 5th Ed., p. 660.

Finding no. error to the prejudice of the plaintiff in the judgment appealed from, the said judgment is affirmed.

On Application for a Rehearing.

Breaux, J.

We have re-examined the issues heretofore decided. Having considered the grounds urged for a rehearing, we have not found there was error in deciding the principal questions as we have in our original judgment. With reference to issues of comparatively unimportant consequence, we can only say, in answer to plaintiff’s petition for a rehearing, that an absolute right was granted by plaintiff to defendant for consideration stipulated, to entér upon plaintiff’s land in question to remove pine timber described, on conditions stipulated.

This court has not found that this right of removal is, or that it should be limited to the “logging season” words of the contract of no special meaning; referring to a season unknown here to lumbermen and others interested in timber lands. To have the right of putting an end to the right granted to remove all the timber on the land in question, after a certain time, the limitation must be expressed in language clear and precise.

The remittances as made by defendant to plaintiff, at stated times, are not found fault with on the application for a rehearing, and it seems no longer ground for argument. It i$ not referred to in plaintiff’s brief for a rehearing.

We take up for consideration that portion of the judgment which allows defendants damages in the sum of eight hundred and twelve dollars, asserted loss of profit on timber for fifteen days in April and twenty days in May at twenty-three and 20-100 dollars per day: All parties concerned agree that this amount is exclusively for tEe alleged loss of profit on the timber for thirty-five days.

The facts bearing on this particular point are, that plaintiff had obtained an injunction prohibiting defendants from cutting down any of the timber on any of the land described in their written agreement. This injunction stopped them from working during the short time we have before mentioned. We make no question but it would have been proper to allow for the profit defendants allege they would have made if it appeared that they have been forever kept out of the profit. This is not the case here. The injunction only had the effect of deferring the earnings of profit for a few weeks. The trees during the short delay were not cut down; their value was not lessened in any way. Immediately after the injunction had been dissolved, defendants resumed operations and earned whatever profits there were in the business. They claim specifically for profits lost and not for expenses incurred -while waiting to have the injunction dissolved.

In view of this, .they have, wé think, no right to damages on this ground. We must decline to grant judgment for profits that are not lost, but which are to be realized upon timber which has been returned to plaintiff’s possession. To the extent that pur decree heretofore allowed eight hundred and twelve dollars, it will be amended.-

With reference to the right reserved to sue plaintiff on his injunction bond, “without restriction”, we quote from plaintiff’s brief: “Whatever right defendants had was reserved and if plaintiff has any right to urge, it can be heard when suit will be brought on the bond.” We will not take up that question for decision in this case. Returning to the claim of eight hundred and twelve dollars, it was fully argued at bar. We are thoroughly convinced that it should not be allowed, and we therefore will not grant a rehearing, and we therefore make the comparatively inconsiderable amendment at this time.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is amended by striking therefrom that portion allowing to • defendants the sum of eight hundred and twelve dollars and interest in damages and, as amended, the judgment is affirmed at appellee’s costs.

To the defendants and appellees are allowed the usual delays in order to permit defendants and appellees to apply for a rehearing only as relates to the said amount of “eight hundred and twelve dollars and interest” — the judgment being final in all other respects.

Judgment amended and rehearing refused except as before mentioned.

Provosty, J., takes no part.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,715.
    B. D. Woods & Sons vs. Carencro Sugar Manufacturing Company. S. Gumbel & Co. and Jules Jeanmard, Opponents.
    Syllabus.
    1. The purchaser, as such, of a sugar refinery — outfit and plant — who assumes payment of claims secured by vendor’s lien upon the machinery, has no greater right to contest and repudiate such claims than his vendors had.
    2. If they would be bound, under the circumstances existing at the time of sale, to meet the obligation of the lien, so must he meet it.
    APPEAL from the Eighteenth Judicial District, Parish of Lafayette — DeBaillon, J.

      Gharles D. Gaffery for John H. Murphy, Third Opponent, Appellee.

      G. H. Mouton and Kenneth Baillio for Jules Jeanmard, Third Opponent, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

At the suit of plaintiffs a receiver was appointed to defendant company — the latter being in insolvent or embarrassed circumstances.

S. Gumbel & Go. were mortgage creditors of the company for a large amount.

The receiver provoked a sale of all the property to pay the Gumbel debt and other debts. At this sale Gumbel & Co. became the purchasers of the property, movable and immovable, constituting the plant of the company.

Before the sale took place John H. Murphy presented a petition to the District Court setting forth the indebtedness of the company to him in the sum of $3746.23, representing the price of certain machinery which he had sold to it, and which had been placed in the refinery and had become part of its plant.

He averred he had not been paid the amount; that promissory notes had been given him; that he had the vendor’s privilege upon the machinery thus sold; that care had been taken to preserve the same; and. that to protect and conserve his rights it was necessary the machinery in which he was interested should not be sold confusedly with the mass of other property, but should be appraised separately and sold separately.

He prayed for separate appraisement and for an order to the sheriff to sell the machinery in question separately from the other property included in the order'of sale, and to retain the proceeds thereof in his hands until the further order of the court.

The judge, considering that a separate sale of the machinery upon which the plaintiff claimed the vendor’s privilege would impair the refinery and destroy its usefulness, refused to order its separate sale, but did order its separate appraisement and directed the sheriff to require of the purchaser a bond and surety, in an amount equal to that claimed by the petitioner, to secure payment to the latter of such sum as he might be decreed entitled to out of the proceeds of the sale.

Having sold the property under these circumstances, and otherwise gotten ready for his settlement, the receiver filed his final account of the classification and distribution of proceeds among the creditors.

He placed John H. Murphy on this account as a privilege creditor on movables sold with the plant, but separately appraised, and figuring the separate appraisement as .1156 per cent, of the appraisement of the whole, he put him down as entitled to that percentage of the proceeds, or to the sum of $2433.60.

Ghimbel & Co. opposed this item of the account on various grounds and took an order of appeal from the judgment allowing the same, but have not prosecuted! this appeal, and do not appear in this court by counsel or by brief. They may, therefore, be considered as eliminated from the case.

Following their purchase of the property of the company, Gumbel & Go. sold the whole outfit to Jules Jeanmard, without warranty — not even for the return of the purchase price — and the purchaser assumed payment of all valid claims supported by legal liens and privileges resting on the property.

From this it appears that the only person of interest remaining to contest the claim and lien asserted by Murphy is Jeanmard, for if the same be sustained, he must satisfy it uxxder the assumption aforesaid.

Accordingly, Jeanmard appeared in the case and opposed the allowance of Murphy’s claim and privilege as the same appeared upon the account of the receiver.

The grounds of his opposition, in brief, are:—

That nothing is due him; that the machinery he furnished the Manufacturing Company was worthless and failed to do the work required of it; that there was, thus, a breach of warranty under which 'same was purchased; that extensive repairs were required upon it and were made at the expense of the company; that it was only by reason of such repairs that the company were enabled to do anything with the machinery; that the separate appraisement made of the machinery prior to the receivership sale, was excessive, ex parte, not binding upon those interested in opposing same and was made without examination of the machinery; that there was collusion between Murphy and You Phul, the manager of the company, to defraud the latter in the purchase of the machinery; and that the giving of the notes by the company to Murphy for the price of the machinery was a fraud upon the company and upon the minority stockholders brought about by Yon Phul, who owned and controlled a majority of the stock.

This opposition of Jeanmard was not presented until after the trial of the issues joined by the oppositions filed to the receiver’s account had been commenced.

Counsel for Murphy opposed its filing on the ground that it came too late and, further, that Jeanmard was without right of action or interest in the premises, and from an adverse ruling reserved a bill of exceptions.

From a judgment rejecting his opposition and sustaining the claim and lien'of Murphy, Jeanmard prosecutes this appeal.

Ruling — It is not considered necessary to pass upon the point raised in the bill of exceptions taken by counsel of Murphy to the trial court’s ruling allowing the opposition of Jeanmard to be filed.

The case is against the opponent on its merits and it were better to decide it on its merits.

The case turns upon facts. There is no question of law involved.

The machinery in question was purchased in the year 1897. It was placed in position in the refinery and used in the grinding season of that year. Payments were made upon the purchase price, but a considerable balance remaining unpaid, the president of the company, acting by authority of thei Board of Directors, to cover this balance and to cover amounts due for other machinery, executed and delivered to Murphy in August 1898 three promissory notes each for $1182.15, payable, respectively, at four, five and six months from date.

The evidence shows that the main trouble with the machinery was experienced in the first grinding season. Murphy seems to have met all the demands made upon him for repairs and replacement of parts, and, thereafter, when another grinding season was approaching, with full knowledge of all the facts, with full knowledge of the merits and demerits of the outfit, the company adjusted accounts with Murphy and liquidated his claim by giving him the notes referred to.

The machinery was used in the seasons of 1898 and 1899, and liabiliiy of the company to Murphy, on the notes he held, was repeatedly acknowledged in letters to him written by the officers of the company.

After all this it is idle to say that the company, if it had remained a going concern, could have successfully defeated Murphy’s recovery of the notes, and if it could not, neither can Jeanmard, who stands before the court merely as a subsequent purchaser, and at second hand at that, of the.plant and outfit of the company, with assumption of whatever liens on the property that would have been enforceable against it in the hands of the company.

He does not appear before the court in the capacity of creditor of the company, but only as having an interest to oppose Murphy’s claim because of the fact that he purchased the property upon which Murphy asserts a privilege.

His case as presented by his pleadings is not made out in any of the particulars therein contained.

The judgment appealed from is found correct and the same is, accordingly, affirmed.


author: Provosty, J.

text:
    No. 13,912.
    Jonas L. Coburn vs. Morgan’s Louisiana & Texas Railroad Company.
    Syllabus.
    1. The purchaser oí a railroad passenger ticket must take notice of the time limitation printed or stamped on the face of the ticket.
    2. A limit of one day on such a ticket is not unreasonably short.
    CERTIFIED from the Court of Appeals, Fourth Circuit, Parish of Iberia, by the Judges thereof applying for instructions.
   The opinion of the court was delivered by

Provosty, J.

The plaintiff bought from the defendant railway company an ordinary ticket for passage from New Iberia to Opelousas, which two points are distant from each other only a few hours’ travel. Fifteen days after purchasing the ticket plaintiff tendered it in payment of his fare on one of the trains of the defendant company. On the face of the ticket was printed the following: “Good for one continuous passage commencing only on date stamped on back.” On the back of the ticket there was stamped the date of the purchase. The conductor refused to receive the ticket, assigning as his reason that the time-limit had expired; and on plaintiff’s refusal to pay fare, he ejected him from the train. Hence this suit, in damages for a wrongful ejectment.

The ease comes to us from the Court of Appeals of the Fourth Circuit sitting for the parish of Iberia, the judges propounding to us for instructions three questions.

Questiou first. — “Is the limitation of one day on an ordinary first-class passenger ticket a reasonable regulation?”

This court having heretofore, in the case of Rawitzky vs. L. & N. R. R., 40 Ann. 47, announced as settled law that a railway company may place a time limit on its passenger tickets, we assume that this question relates not to the reasonableness of placing a time limit on passenger tickets, but to the reasonableness of a time limit so short as one day. We assume, furthermore, that the question has reference solely to the time within which the traveler shall set out on his journey. We are not informed by the record what were the grounds on which the reasonableness of this time limit was impugned in the lower court. To us the limit appears to be entirely reasonable. It could be unreasonable only if it were adopted without any useful purpose in view, or if it did not allow the traveler sufficient time in which to buy his ticket and take his train; but we must assume that it has been adopted by the railroad for the better management of its business, and it seems to allow to the passenger all the time he can possibly need to buy his ticket and take his train. We are not questioned as to whether the limit may not become inoperative in any given case owing to special circumstances, and as to that we have nothing to say.

Question second. — “Is the buyer of such ticket charged with knowledge of such a limitation by the fact of its being printed on the face ox the ticket?”

Question third. — “Is the purchase of the ticket a contract which requires that the railroad company should, at the time the ticket is purchased, give the purchaser actual knowledge of the limitation in order to bind him to such limitation?”

These two questions are at bottom one; they enquire as to the natuie of the time limitation on passenger tickets; whether it is a mere matter for the carrier to regulate, very much as the time for the departure of trains is, or whether it is a matter of contract between the passenger and the carrier, and therefore a matter the provisions as to which are not binding on the passenger without his actual knowledge, and his consent express or implied.

We think the limitation is in the nature of a mere regulation, and that the passenger must take notice of it, as he must do of all the other reasonable rules and regulations of the railroad on which he travels. Of course, before the passenger can be expected to conform to the carrier’s rules and regulations these rules and regulations must be made known to him in some way. Mere posting of notice that tickets are limited, without printing on the ticket, or other notification, has been held by the Supreme Court of New Hampshire to be sufficient to bring to the passenger the knowledge of the limitation, so as to make the limitation binding on him, Johnson vs. Railroad Corp., 46 N. H. 213; and this decision is referred to, apparently with approval, by text writers. But, be that as it may, certainly a limitation printed on a ticket is binding on the passenger. As to this the law is well settled:—

“It is now definitely settled that a stipulation in a ticket limiting the time within which it shall be used is valid and binding on the passenger.” Fetter on Carriers of Passengers, p. 731, par. 285, citing a number of cases.
“When on its face the ticket is issued available for a limited time only, the holder thereof will not be entitled to passage by virtue of it after the expiration of the time specified.” American & Eng. Ency. of Law, Vol. 25, page 1093, verbo Tickets and Fares.
“A railway pasenger who accepts a ticket is bound by its terms to the same extent as if he had by formal agreement entered into such a contract with the company.” General Digest, Am. & Eng. Annotated, verbo Carriers, Tickets, No. 73, citing a number of cases.

The authorities referred to in the record as having been cited by plaintiff to the contrary of the above, must be read in the light of a distinction between the time limit on a ticket and the limitation of the carrier’s liability under his contract for carriage; when so read the authorities in question are found not to conflict with the extracts here given. The time limit on the ticket is a matter of regulation by the carrier, <-f which the passenger must take notice, and which may be brought to his attention by being merely printed on the ticket; whereas, the limitation of the legal obligations of the carrier is a matter of coiitract between the carrier and the passenger, which, in order to be binding on the passenger, may have to be shown to have been brought to his attention at the time of the formation of the contract.

We answer the first and second questions in the affirmative, and the third in the negative.

Nicholls, C. J., and Blanchard, J., take no part in this decision.


author: Breaux, J.

text:
    No. 13,687.
    E. A. Boudreaux vs. E. Feibleman, Sons & Co.
    Syllabus.
    A merchant who authorizes his clerk to call on one of his customers for payment of his account and who, through his clerk obtains a policy of fire insurance on a building destroyed by fire a short time previous and collects the policy, is bound by the conditions by which the clerk obtained possession of the policy.
    He is without right to recognize the acts of his clerk in one part and repudiate them in another. The amount is credited as agreed upon; the remainder is returned to the customer as in accordance with the inducement held out bv the clerk.
    APPEAL from the Civil District Court, Parish of Orleans — St. POAjH, tF.

      Albert VoorM-es, for Plaintiff, Appellant.

      Clegg & Quintero, for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued to recover from defendant the sum of one thousand and seventy-six and 95-100 dollars, the amount of a fire insurance policy which plaintiff held.in the Sun Mutual Insurance Company and which he was entitled to collect because the property which he had insured had been destroyed by fire. Plaintiff also sues to recover damages from defendant in the sum of one thousand dollars. The fact'* of the ease are that plaintiff was the owner of a store which was burnt down on the 26th of April, 1898. Two days afterward defendant’s traveling salesman called on plaintiff and held out an inducement to him to deliver his'policy to the defendants.

The following shows the character of the inducement held out by this clerk to the defendant as sworn to by plaintiff and not denied by the clerk as a 'witness. He, this clerk, did not testify. Defendant as a witness said: “On Friday, after the fire, he, the traveling clerk, came there and said ‘let me have the policy and you can go ahead and rebuild and I promise to give you enough goods to run your store/ ”

“Q. — What did you answer him then?

“A. — Then I gave him the policy and I said, Mr. Gailland, I owe other merchants and I would rather give you eight hundred dollars our of the policy and four hundred and fifty dollars will pay the other merchants.” And he, the clerk, replied: “I think that would be better.'-’ Part of the conversation was heard by another witness and to the extent that it was heard, confirms the verity of plaintiff’s testimony.

Plaintiff at the time assigned his policy to defendant for collection. After the proof of loss had been made and the usual delays had elapsed, the insurance company forwarded its check to plaintiff for the amount allowed him on the policy. Again, the traveling clerk called on the defendant. This time it was to have the cheek endorsed and to have it forwarded to the defendants.

Plaintiff also testified that he bought lumber, with which he intended to construct a building for a store in which to resume his business. Not long after this purchase and while the construction was going, on, ,he said that he called upon defendant firm for the promised advance of goods. This was before the check before mentioned had been collected. The firm declined to make advances and disavowed any authority of the traveling salesman to bind them to make advances.. In June, following, however, the defendant firm wrote to him that “owing to existing war which makes matters a little hard with us, we cannot promise you the advance of two hundred and fifty dollars which you ask, but will see later on what we can do for you and hope prospects will brighten up before long.” Plaintiff did not resume business. Most of his business' had been previously done with and through the defendant firm.

The defendant, in its-answer, avers that it collected the amount of the policy and after giving proper credit to the plaintiff, he still remained indehted to it in a balance of two hundred and thirty-one 83-100 dollars. The following is a statement of the account between plaintiff and defendant:

Jan. 15, to amount note due Apr. 15, 1898.................,$400 00
To amount note due June 15, 1898................ 500 00
To amount note due Aug. 15, 1898................. 524 21
April 19, To amt. bill.................................... 64 32
Dee. 31, To interest .....................................110 75
$1599 28
Credit — ■
April 19, easb ..'........................................$ 65 00
April 19, cash........................................... 108 25
April 19, easb........................................... 50 00
May 9, cash ............................................ 781 15
June, easb .............................................. 295 80
Dec. 31, interest ...............■......................... 67 25
$1367 45
To balance due Eeibleman & Co., $231.83.

This credit statement covers all the credits plaintiff was entitled to , under the judgment of the District Court for amounts collected on the policy in question. The District Court rejected plaintiffs demand and dismissed defendant’s reconventional demand. From this judgment, plaintiff prosecutes this appeal.

Appellee in his answer joined in the appeal and prayed for an amendment covering the balance it claims plaintifE owes him. We must infer from the testimony that as to part of the amount, to-wit, eight hundred dollars, defendant collected on the policy, plaintiff did not object to crediting it on his account. The utterances of plaintiff as a witness regarding this amount show that he consented to the credit as given. The agreement was to let defendant credit the first amount stated on his account. It is now an accomplished fact. In view of the payment, we do not think that defendant should be condemned to return the amount credited as before stated. But as to the balance, it was agreed between defendant’s clerk and plaintiff that it would be returned to him. At the date that this agreement was entered into, the eight hundred dollars in question was morel than plaintiffs indebtedness, actually due and matured. The payment made covered all indebtedness except an amount of five hundred and twenty-four 21-100 dollars due and exigible only on August 15th, 1898, which was partly paid from said eight hundred dollars.

It is not to be overlooked that defendant only received with plaintiff’s Consent the amount to which it was entitled as creditor. It only has its own. If it were returned to plaintifE it would return that which it had received in payment of its claim and for' this return it would not receive the least consideration. The promise to give goods gave rise, perhaps, to a right of action for damages, but not for a return of an amount paid in discharge of a pre-existing debt. It falls within the maxim of all systems of laws, both civil and common. Repetition nulla est at eo qui suurn recipit.

There is no testimony showing that it was plaintiff’s agreement to pay the amount due in August by anticipation. On the contrary, it was stipulated that the balance remaining after crediting the eight hundred dollars would be handed to plaintiff. Defendant contends, in substance, that its agent was not authorized to enter into any such an agreement; that the agent’s authority was limited to selling goods for the firm. The evidence discloses that in this instance, at least, they directed him to call on plaintiff for the amount due, The clerk chose to call for the policy in question which was assigned on condition before stated. When the amount to be paid was agreed upon with the insurance company, they made out the check to the order of the insured. This check was sent to this clerk who obtained plaintiff’s endorsement, without, so far as the record discloses, informing him that the agreement was not to be carried out by his employers: It was collected by defendant.

Defendant, by the terms of the agreement, had no authority to credit it to plaintiff’s account. They could not, under an agreement to receive part of the amount of the policy, credit the whole of it on the claim. As relates to the authority to enter into the agreement, the clerk’s act cannot be approved in part and disapproved in part. Defendant not having sought to disavow the act of the clerk in so far as it was beneficial, is not in a situation persuasively to urge that it is not bound by the clerk’s act. in so far as deemed unfavorable. It cannot ignore the agreement. Qui sentit commodum sentire debet et onus.

We pass to another branch of the case, viz.: plaintiff’s claim for damages on the ground that defendant did not comply with the agreement to furnish plaintiff goods needed by him to resume business. The asserted conditions are too vague and indefinite to enable us to assess damages. The amount to be advanced was not mentioned, nor the time within which goods were to be sold by the defendant to plaintiff. Moreover, the extent of plaintiff’s business is not shown, and there is no reason to infer, with any degree of certainty, how much or how little plaintiff would have earned if advances in goods had been made to him. This claim is too uncertain to form the basis of any part of a judgment allowing damages.

For these reasons it is ordered, adjudged, and decreed that plaintiff have judgment against defendant condemning it to return the sum of two hundred and seventy-six and 95-100 dollars to plaintiff, and to that extent the judgment is amended; in all other respects it is affirmed at appellee’s costs (but reserving to defendant the right to recover from plaintiff all amounts due it by plaintiff).

Provosty, J., takes no part.


author: Blanchard, J\

text:
    No. 13,582.
    Mrs. M. O. Ragsdale et al. vs. W. A. Ragsdale et als.
    Syllabus.
    1. Rescission for the non-payment of the purchase price may be enforced if the parties to the sale can be placed in the same condition as they were “as though the obligation had not existed.”
    2. The test in a suit between the parties to the sale is: — the return to the purchaser of that portion of the price he has paid (if any) and his complete discharge as to the remainder — the unpaid portion of the price.
    3. A general endorsement on negotiable paper may, except as against a bona fide. holder, be explained and the precise terms of the agreement shown by parol testimony.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      DaH & Kernan, for Plaintiffs, Appellants.
    Boainer, Dodds & Boainer, for J. R. Abels, Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J\

The question which this case presents is whether or not the widow and five of the six heirs of George W. Ragsdale, deceased, may enforce as against the sixth heir, William A. Ragsdale, the resolutory condition implied in a contract of sale entered into between said George W. Ragsdale and the said William A. Ragsdale.

There is dispute as to whether George W. Ragsdale resided in Louisiana or Mississippi, but we think it sufficiently shown he was a citizen of Louisiana.

The property in question, therefore, pertained to the community of acquets and gains existing between himself and Maria Ragsdale, his wife — now widow, and one of plaintiffs herein. It consisted of certain lots of ground and mill plant situated in the parish of Tangipahoa.

In March 1898, by public act passed in Copiah county, Mississippi, he sold the property to his son, W. A. Ragsdale, for the price'of $2800, of which' $100 was paid cash and eleven promissory notes were given for the remainder.

A mortgage and vendor’s privilege to secure these notes was reserved, but there was neglect to record the act in either the conveyance or mortgage records of the parish of Tangipahoa.

In January 1899, George W. Ragsdale died. ITe left a widow and six descendants, all of age.

William A. Ragsdale did not pay any of the notes representing the purchase price of the property he had bought from his father.

In consequence, this suit is brought against him by the widow and five of the heirs to dissolve the sale for non-payment of the price, first tendering him the $100 paid on the purchase, price at the time of the' sale and the eleven notes, all matured.

In the interim between the date of his purchase and the maturity of the notes, W. A. Ragsdale was sued in the parish of Orleans, where he resided, by J. R. Abels, and a judgment recovered against him. Discovering the omission of registry of the sale made to his debtor, Abels obtained the original act and caused it to be recorded in the conveyance, but not the mortgage, records of the parish of Tangipahoa.

He also had his judgment registered in the mortgage records of that parish so as to operate a judicial mortgage on the property.

He then caused its seizure under fi. fa. and at the sale which followed he became the adjudicatee thereof.

The seizure was made prior to the filing of the present suit, but the adjudication subsequent thereto.

Because of his judgment and seizure of the property in question thereunder, Abels is made party; defendant herein.

I.

W. A. Ragsdale makes no defense. Abels resists^ and his principal contention is that the action of revendication being indivisible, it can only be brought by the vendor holding and offering to return the whole price, or by the subrogee of the vendor similarly situated, or by all the heirs and legal representatives of the vendor similarly situated.

He insists that W. A. Ragsdale, being an heir of G. W. Ragsdale, is a necessary party plaintiff to the suit for resolution, and that inasmuch as one of the heirs of the vendor has not joined in the action, the plaintiffs do not represent wholly the vendor, there is lack of unity of all the interests centering in and representing the vendor, and, hence, the action to enforce the resolutory condition does not lie.

Plaintiffs must represent the whole price — is his position — and this they do not do, since W. A. Ragsdale represents his own interest and has not sued.

Ruling — -If another than W. A. Ragsdale — one, for instance, not an heir of G. W. Ragsdale — were the vendee, and W. A. Ragsdale, representing by inheritance as heir of his father part of the purchase price, stood aloof and did not join in the suit, the force of this argument would be instantly admitted.

But is it applicable here, seeing that W. A. Ragsdale is himself the vendee, who has not paid the purchase price? Is he in a position to make this contention?

If not, neither may Abels, his creditor, for Abels can have no greater rights than his debtor, whose place as to the property he merely takes.

Abels was not a necessary party to this suit. It might have been prosecuted as well without him. If he had been omitted and made himsef a party by intervention, there would pertain to him no greater rights of defense to the action than his debtor, himself, possesses.

The ease is, then, to be dealt with as though it were purely a contest between W. A. Ragsdale, the vendee and one of the heirs of George W. Ragsdale, on the one hand, and the surviving widow in community of George W. Ragsdale and his other five heirs, on the other hand.

It would be extraordinary indeed if W. A. Ragsdale, who as heir of his deceased father represents only one-twelfth interest, could purchase from his father, before the latter’s death, all the property he owned, neglect or refuse to pay the purchase price, then when, following his father’s death, he is sued by the wiclow and other heirs for dissolution of the sale, he could set up that the action will not lie because he, an heir, is not a party plaintiff!

We do not understand such to be the law of Louisiana, either by the terms of codal enactments, nor by jurisprudence as established by the decisions of the courts.

We, rather, understand the rule to be that rescission may be enforced if the parties to the sale can be placed in the same condition they were “as though the obligation had not existed.”

C. C. 2045; Leflore vs. Carson, 7 La. Ann. 67; Bryant vs. Stothart, 46 La. Ann. 489.

In the latter case, there was, as here, an exception that the plaintiff represented only part of the purchase price still due.

Mr. Justice Miller, as organ of the court, said:—

“The dissolving condition accomplished in the contract of sale places the parties as they stood before the sale. The vendor takes the property back. The purchaser is restored the price he has paid, and is entitled to complete discharge for any part of the price he has not paid. Can this result — i. e., the discharge of the purchaser — be attained in this suit? If not, the action fails.”

This, we think, established the true test :• — the return to the purchaser of that portion of the price he has paid and his complete discharge as to the remainder — the unpaid portion of the price.

If this can be done in the suit for rescission as brought, the courts will sustain the action.

Applying the test to the ease at bar, undoubtedly the discharge of the purchaser can be here attained.

He is tendered the portion of the price which he paid in cash, the eleven notes he gave, representing the remainder of the price, are all in the hands of the plaintiffs and are attached to their petition as part thereof. None of them are outstanding in third hands.

They are here ready to be delivered to him upon the entry of a decree annulling the sale.

Returning him $100 and his notes “restores him to the price he has paid”, acquits him of all liability on account of his purchase, and places “matters in the same state as though the obligation had not existed.” C. C. 2045.

That is to say, it would reinstate the property in the name of George W. Ragsdale. He being dead, its restoration would be to his succession, his legal representatives, his widow and heirs at law. His succession has not been opened; he has no legal representatives in that sense. The restoration, then, is to the widow in community and his six heirs at law.

The vendee defendant, W. A. Ragsdale, then, would cease to hold the property in virtue of his purchase, hut immediately he would be invested with the ownership of an undivided twelfth interest in his capacity as heir of George W. Ragsdale. Or else, the part he would owe, as heir, of the obligation of the purchase price would be extinguished by confusion- — the law giving him his virile share of the property in lieu of his virile share of. the debt.

The practical result would be the same.

All parties in interest are before the court — six of them as plaintiffs, one as defendant. This being so, the court is competent to do what the parties could do if they were acting together.

The failure to register this sale in the conveyance or mortgage records does not militate against the right of the vendor to enforce the resolutory' condition.

12 La. Ann. 701; 28 La. Ann. 599; 32 La. Ann. 463.

So, too, a vendor by sale unrecorded may rescind as against a subsequent recorded mortgage granted by the vendee. 12 La. Ann. 699.

A vendor may sue for the rescission for non-payment of the price even after seizure by a creditor of the vendee.

7 La. Ann. 25.

And the fact that the property had passed from the vendee into third hands in no manner abridges the right.

32 La. Ann. 462.

The underlying principle is that until the vendee pays the purchase price he holds by a defeasible title only, and-all who deal with him are equally affected. Further, that the rescission of a contract of sale, for a cause going back to the origin of the agreement, is not considered as an alienation properly so called, but rather as a return to the former ownership, which has not ceased to exist, or was only suspended. Ins. Co. vs. Packwood, 9 La. Ann. 87; Toullier, Vol. 4, Nos. 539, 548, 550-Contracts et Obligations Conventionnelles; Mortee vs. Syndic, 8 La. Rep. 83; McKenzee vs. Bacon, 41 La. Ann. 9.

Whatever rights, of course, W. A. Ragsdale is entitled to retain in the property following the resolution of the sale may well be claimed by his judgment creditor and adjudicatee, Abels.

n.

There is a contention with regard to a ruling of the trial judge on the admission of certain evidence.

The notes which W. A. Ragsdale had given for the greater part of the purchase price were payable to the order of George W. Bagsdale, the vendor.

lie endorsed them all “Pay to the order of M. O. Bagsdale” and signed. M. O. Bagsdale was his wife.

The petition alleges that endorsement in these words: — -“That said notes having been executed and delivered to said George W. Bagsdale he endorsed them to your first named petitioner, as will more fully appear from said eleven notes hereto annexed and made part hereof.”

Plaintiffs contend that this allegation of endorsement is not the allegation upon which the action is founded, but is purely descriptive and upon the same lines as the description of the notes, the act of mortgage, etc.

Defendant Abels contends that the effect of the endorsement was to transfer the legal title of the notes to Mrs. Bagsdale, and, hence, the allegation of endorsement is, in effect, an averment of her ownership. He, thereupon, invokes the rule that a mere transferree by endorsement cannot sustain the action of rescission.

In the course of the examination of Mrs. M. O. Bagsdale on the witness stand, she was asked:—

“Did your husband ever give up his ownership in the notes ?”

Defendant’s counsel objected to the question on the ground that it contradicts the allegation of the petition and of the endorsement on the notes.

The judge ruled that the endorsement of the notes to Mrs. M. O. Bagsdale transferred their title to her and that parol evidence was not admissible after the death of the endorser to explain why the endorsement was made.

Plaintiff excepted.

Ruling — The testimony sought to be elicited was admissible. Plaintiffs sue as surviving widow and heirs at law of George W. Bagsdale. There is a direct allegation that the non-payment of the purchase price of the property entitles them in their capacities as owners of the notes and as widow and heirs of the deceased vendor to rescind the sale. And the prayer of the petition is that the sale be resolved and the property be returned and restored to them in their said capacities.

These averments and prayer sufficed to admit proof that the ownership of the notes was at the time of his death in George W. Bagsdale, and that their endorsement over to Mrs. M. O. Bagsdale was never intended to transfer the title to ber, but for another purpose to be explained.

There was then no attempted contradiction of the allegations of the petition by the question propounded to Mrs. Ragsdale.

And the ground of the judge’s exclusion of the testimony is answered adversely to his ruling by Abbott’s Trial Evidence, 2nd ed., p. 511, where the proposition is sustained that a general endorsement on negotiable paper may, except as against a bona fide 'holder, be explained and the precise terms of the agreement shown by parol evidence. See also Wood vs. Tyson, 13 La. Ann. 104.

To admit testimony in explanation of the endorsement, as well as for adjustment of the question of rents and revenues, claimed by plaintiffs, and of the privilege on the property asserted by defendant Abels, the case must be remanded.

Eor the reasons assigned it is ordered and decreed that the judgment appealed from be avoided and reversed, and that the cause be remanded to the court a qua for further proceedings according to the views herein expressed and the law — costs of this appeal to be borne by defendant, J. R. Abels.

Provosty, J., takes no part.


author: Monroe, J.

text:
    No. 13,772.
    State of Louisiana vs. Jules Veillon.
    Syllabus.
    1. A remark by the judge, presiding upon a trial for murder, referring to tbe calling back, for tbe purposes of cross examination by counsel for defendant, of a juror who bad been examined by tbe State on his voir Mre and told xo stand aside, that “it was a useless consumption of time”, although, perhaps, better left unmade, does not call for a reversal of tbe verdict, unless there is good reason to believe that the defendant has been injured. And the same thing may be said with regard to inquiries made by the presiding judge, in the presence of the jury, as to whether the defendant’s counsel would waive his objections with regard to the matter of allowing the jurors to leave their fellows, accompanied by an officer, to attend to calls of nature. There is no necessity for consulting counsel for defendant in such cases, and it is better that it should not be done, but having been done, the setting aside of the verdict does not, necessarily, follow.
    2. To allow a juror to separate from his fellow jurors, for the purposes, and under the conditions, as stated above, is not such a separation as falls within the technical prohibition of the law, and does not, of itself, authorize any presumption of injury to the accused.

      3. Where the jury, whilst trying the accused, charged with murder, and who is convicted o£ manslaughter, is taken by the officer in charge to the post-offi<e, in order that one oC the jurors may obtain stamps, and, whilst there, one oí them is handed a newspaper, which has come through the mail, in a wrapper, but it does .not appear that any of the jurors are spoken to by outside persons, and it is shown by the testimony of the juror in question that the paper received by him was a daily from a distant city, and contained no reference to the cause on trial, and there is nothing to show injury to the accused, the facts of the jury’s going to the post-office, and of the delivery of the paper to the juror, although irregularities which are to be deprecated, do not demand the reversal of the verdict.
    APPEAL from, the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.

      Walter Guión, Attorney General, and B. Lee Garland, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      B. B. Dubuisson, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant, having been tried for murder, was convicted of manslaughter and sentenced to fine and imprisonment at hard labor. His ease is presented to this court by means' of two bills of exception and a motion for new trial. Prom bill No. 1, it appears that two jurors, being examined upon their voir dire, stated, “that they had formed fixed opinions, which would require strong evidence to change”, and that they were challenged for cause, by the State. The presiding judge, thereupon, remarked to the defendant’s counsel, “that he did not suppose any further examination would be necessary, and told the jurors to stand aside.” Defendant’s counsel did not, at once, make any objection to this, or offer to cross examine the jurors, who, accordingly, withdrew. Immediately, thereafter, the counsel demanded the right to cross-examine, and the judge, in according it, remarked that “it was a useless consumption of the time of the court”, to which remark the bill was reserved as being prejudicial to the defence. When the jurors were recalled, it appears that the State withdrew its challenge, and that, after cross-examination, the defence accepted one of them, and he served upon the jury by which the defendant was convicted. There is some little difference between the statements of the counsel and of the judge, as contained in this bill, but it is not important, and the version as given above is that of the judge to whom, in such matters, the court gives the preference.

We think that the remark complained of had, perhaps, better have been left unmade; but there is nothing in the record which suggests that either its purpose or its effect was to prejudice the defendant’s ease. It, therefore, affords no ground for the relief sought.

Bill No. 2, was taken to the overruling of a motion for new trial in which the following points were presented, to-wit:

1. That the verdict was contrary to the law and evidence.
2. The point covered by the bill No. 1 already considered.
3. Because of certain irregularities in the trial which, it is alleged, operated to the injury of the accused, viz: (a) — “After the jury was “ empanelled, and whilst the court was temporarily at recess, the officers “having them (the jury) in charge permitted them to separate, without “ the permission of the court, leaving ten of them in their seats in the “ jury box, and taking two of them to the water closets in court house “ square, about forty yards from the rear of the court house, the court “room and the court house being, at the time, crowded with people; “ (b) — that, when the officer having the said two jurors in charge returned with them, the court was called to order, and the said officer “ reprimanded in the presence of the jury; and, still in presence of the “jury, the court called upon the attorney for the defendant either to “waive their legal rights, because of the separation aforesaid, or to “ consent to the discharge of the jury; that the attorney announced that “ they would do neither, but would insist upon their rights in the premises; that thereupon on motion of the district attorney, the trial was “proceeded with: (B) — During the adjournment of the court, the offi- “ cers having them (the jury) in charge, permitted them to have access “ to law books and papers; to read newspapers; to go to the postoffiee “in his company, and to call for, receive, and read, their mail: (C)— “ After the separation of the jury, as aforesaid, several of them being “ troubled with loose bowels, and for that reason having frequently to “visit the closets situated as aforesaid, the court on such occasions “would request the attorney of the defendant, in the presence of the “ jury, to consent to allow such jurors to go to such closets, separate and “ apart from their fellows, and, upon the refusal of said counsel to “ comply with said request, and their protest against being asked to do “ so, the court would order the whole panel to go to said closets together; “that this was calculated to prejudice the jury against the defendant, “ and that it did so is attested by the fact that immediately after the trial, one of said jurors publicly declared that one of their number “ had been coerced by his fellows to render a verdict of guilty that was rendered in this case, and that he, the declarant, had agreed to convict the defendant, on general principles,’ and without regard to the evi- “ deuce.”

The separation complained of affords no serious ground of complaint and creates no presumption of prejudice to the accused. The jurors who separated from the others, in order to visit the closets, were accompanied by an officer, who testifies that they were approached by no one and spoke to no one, whilst the other jurors remained in their seats in the presence of the court.

The separation of a juror from his fellows in the jury room by go- ing thence is not a ground for relief, if it is shown that the juror was “ not subjected to improper influences.” * * * “ The presumption will not ho indulged that a separated juror was tampered with in the “ immediate presence of the officer having him in charge.” Ency. of Pl. & Pr., Vol. 12, pp. 570-2; State vs. Turner and Reid, 25 Ann. 573; State vs. Johnson, 30 Ann. 921; State vs. Scanlan, 52 Ann. 2058.

Concerning the visit of the jury to the postoffice, the evidence shows that they were taken there by the sheriff in charge at the request of one of the jurors, in order that he might obtain some postage stamps; that whilst there, a young lady clerk gave to another of the jurors a newspaper, in a wrapper, which she took from his box, or the box of some one whom he knew, and which the juror testifies was a New Orleans evening paper that contained no reference to the case on trial. He also swears that there was nothing else within the wrapper, and that he received nothing else.

It further appears that, other than said paper, the jurors received no mail, for the reason that the officer declined to allow them to do so, the delivery of the paper having, probably, taken place before his attention was attracted. It does not appear from the testimony which was taken that the jurors upon the occasion in question spoke to any one, or were spoken to; and, whilst the indulgence was rather unusual, and is to be deprecated, we find absolutely no reason to suppose that it resulted in any injury to the defendant.

The charge that the jury was allowed law books and papers and newspapers, is supported by the testimony taken on the trial of the rule, only to the extent as already mentioned, and by the following statement of the defendant’s counsel, to-wit: “On the last day of trial I came into “ court just after the doors were opened. The jury were in the court “ room, in charge of an officer. As I, and several others, walked in, “they proceeded toward the jury box, and one of them picked up a “ newspaper, lying on a lawyer’s table, glanced at it afid dropped it, in “ the manner of one who had read every line in it, including advertise“ments. The paper appeared to be pretty well worn.” The counsel further testifies that he took the paper, to which he refers, to have been a New Orleans paper, and that he did not, during the trial, see anything, in any paper, concerning said trial. And in this statement he is corroborated by the judge, who testifies to having read one of the New Orleans papers, and the local papers, which latter, it appears, were published weekly, and, as we infer, did not come out during the trial. We conclude, therefore, that no prejudice to the defendant is shown in connection with this charge.

The remaining ground of complaint is that which is based upon the inquiries made by the trial judge, of the counsel for defendant, as to whether he would waive his objections to the separation of the jury to the extent necessary for those who needed to do so to go to the closets. It is certainly to be regretted that such inquiries were made, as the counsel who is defending a person on trial for his life ought not to be asked by the court, in the presence of the jury, to waive any right, or supposed right pertaining to his client, when his refusal might have a tendency to put him in an attitude of antagonism to the jurors. But a careful consideration of the case, as presented, fails to satisfy us that the defendant sustained any such injury by reason of the matters complained of as would justify the reversal of the verdict. The defendant’s counsel, himself, states, that the last time, or the last two times, that the jurors asked to-go to the closet, the judge allowed them to go, accompanied by an officer, apart from the other jurors, without consulting the counsel for the defendant. This, we think, would have been the better course to have pursued, originally, but the fact that the course which at this distance seems the best is not always pursued in the trial of a case does not, of necessity, imply that the verdict and judgment reached are to be set aside. There must be satisfactory reason for believing that injury has resulted to the party complaining. The following language, used by this court many years ago, and since repeated, may be applied in the instant case, to-wit:

“ It is the duty of the courts and of their officers, to guard, as far as “possible against all irregularities in tjheir proceedings. Still, they “ will occur, because tribunals of justice, like all human institutions, “ are imperfect. Some irregularities are of such gross character that “ a prejudicial effect may be presumed. We do not think the one com- “ plained of was* of that character. State vs. Bradley, 6 Ann. 560; “ State vs. Harris, 34 Ann. 120.”

Judgment affirmed.

Provosty, J., takes no part.


text:
    No. 13,887.
    Mary Earl Taylor Calhoun vs. The Town of Colfax.
    Syllabus.
    Where streets and lots and blocks appear on the map of an incorporated town, h donation of the lots and blocks by an act wherein they are designated simply by the numbers they bear on the map, operates a dedication to the public of the streets on which the lots and blocks abut.
    APPEAL from the Thirteenth Judicial District, Parish of Grant— Blackman, J.

      While & Thornton, for Plaintiff, Appellant.

      John A. Williams, for Defendant, Appellee.
   The opinion of the court was delivered by

Provosty, J.

This suit involves the right of the Town of Colfax to open for public use certain streets figuring on the map of the town. The town notified plaintiff to remove her fences from these streets, and plaintiff countered by this suit, enjoining the town from trespassing on her land.

Plaintiff claims that the alleged streets are not streets but part and parcel of her land. The defendant town avers that the streets in question have heretofore been dedicated to the public, and that plaintiff is not owner of them.

Plaintiff’s only title is by donation from Per mother, Mrs. Calhoun, In the act evidencing this donation the property given is stated to be lots and blocks in the town of Colfax. The lots and blocks are not otherwise designated or identified than by number. The numbers are not expressly stated to be those of the town map, but they are such in point of fact, and would otherwise be absolutely meaningless.

Such a description is as specific as a description can be, and by specifically including only the lots and blocks it specifically excludes the streets. Hence, the streets did not pass to plaintiff; and unless the donor, Mrs. Calhoun, retained them to herself, they passed to the public by dedication. It is inconceivable that Mrs. Calhoun should hav.e retained ownership of this network of streets, therefore the inference is irresistible that she dedicated the streets to the public. The law is well settled that “a sale of lots with reference to a plat showing a subdivision, defining, streets, squares, etc., or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter binding upon both vendor and vendee.” Dillon on Municipal Corporations, 3rd Ed., Vol. 2, par. 640; Lafitte vs. City of New Orleans, 52 Ann. 2099. A conveyance by donation must be held to have the same effect as a sale, the underlying principle being the same.

Furthermore, the streets in question had been dedicated to the public previous to this donation to plaintiff. Mrs. Calhoun herself, the donor, had acquired under a description by lots and blocks; and in the deed to her not only the lots and blocks are expressly stated to be those of the town map in question, but the map is expressly stated to be official.

Plaintiff’s counsel have pressed with great force the argument that the description by lots and blocks was resorted to merely for convenience, and that the above mentioned transfers were intended to be by area. The argument may apply to a certain act of partition also relied on by the town to show dedication, but when applied to the act of donation it goes against the plain facts.

Judgment affirmed.