author: STEPHENS, J.

text:
    No. 3992
    Second Circuit (Second Division)
    JACOBS ET AL. v. CUTRER
    (July 16, 1931. Opinion and Decree.)
    S. R. Thomas, of Natchitoches, attorney for plaintiffs, appellants.
    Breazealé & Hughes, of Natchitoches, attorneys for defendant, appellee.
   STEPHENS, J.

On July 1, 1930, the Natchitoches parish Democratic executive committee met and ordered that a Democratic primary election be held on Tuesday, September 9, 1930, in ward-6 of Natchitoches parish to. make a nomination for member of the parish school board from said ward. L. W. Jacobs was the only candidate to qualify, and the executive committee met on July 14, 1930, and declared him the Democratic nominee for member of said school board, and his name, accordingly, was duly certified to the secretary of state; and in due course his name, together with other democratic nominees ■ for various offices, appeared on the ballots, furnished for the general election held on November 4, 1930. The defendant, E. T. Cutrer, became an independent candidate for member of such school board, and was declared elected by a majority of one vote by the board of supervisors of election.

This proceeding was instituted by eleven duly qualified electors of ward 6 of Natchitoches parish, alleging that L. W. Jacobs, one of the plaintiffs, was duly elected as member of the Natchitoches, parish school board from ward. 6 at the general election held on November 4, 1930.

The petition sets forth that Earnest T. Cutrer became an independent candidate at the general election for the office, and that sixty-three persons sought to cast a ballot for him; that he was prohibited by law from becoming an independent candidate against the regular Democratic nominee, and that therefore L. W. Jacobs was duly elected. It is further alleged that two parties residing in Sabine parish voted for the said Cutrer, and that their votes were illegal and should have been disregarded for the reason that they could not return to ward 6 after having abandoned their domicile, and vote for a ward officer. The petition also attacks ' a number of ballots cast for Cutrer on the ground that the parties casting them had participated in the Democratic primary election held on September 9,. 1930, and were prohibited from opposing the nominees of the party made at said primary election. It is further averred that L. W. Jacobs received a majority of the votes cast in the general election, and it should be so declared by a decree of court.

The defendant answered, denying generally the allegations of plaintiffs’ petition, and specifically denying the election of Jacobs; and averring that he (the defendant) was elected by a vote of seventy-three to sixty-two, or a majority of eleven.

The defendant further avers in his answer that D. L. Johnson and Miss Addie Johnson voted illegally for Jacobs, being bona fide residents, of ward 5 of Natchitoches parish; that .ten ballots cast for him (defendant) were counted as “spoiled” ballots; that said ballots counted as “spoiled” were in truth and in fact . not spoiled, and on trial of the case he prays that said ballots be counted for him.

The answer of the defendant further alleges that the returns made by the commissioners and the board of supervisors of the election, to the secretary of state show sixty-three votes for defendant and sixty-two votes for the plaintiff Jacobs; and that acting on said returns the secretary of state has issued to the defendant his commission as a school board member of ward 6 of Natchitoches parish. Defendant prays that he be declared elected as such member by a decree of court.

By consent of counsel, the sealed ballot box used in the election was brought into court and the ballots and election returns taken therefrom and inspected by the district judge, who concluded that the. defendant Cutrer had received sixty-three votes and the plaintiff Jacobs sixty-one. The plaintiffs’ demands were rejected, and they prosecute this appeal.

The contention of plaintiffs that a voter who participates, in a party primary election is prohibited from becoming a candidate against the party nominated at such election is no longer an open question in this state, and we shall not discuss it. While the plaintiffs have not abandoned the contention expressly, it is not urged in their brief before us.

On the trial of the casé the plaintiffs, offered in evidence ballots marked “P-1” to “P-62,” inclusive, which were the ballots counted by the commissioners for Jacobs. They were permitted to be filed subject to the objections hereinafter mentioned.

The defendant objected to ballot marked “P-1” on the ground that it was identified by the certificate attached thereto; and that it was the vote cast by D. L. Johnson, a resident of ward 5 of -Natchitoches parish, as- alleged in defendant’s answer. The first objection was properly overruled and the ballot counted as not being identified; it appearing clearly that the intent of the election commissioners who attached the certificate to the ballot was to show the qualifications of the voter, rather -than to mark it for future identification. No evidence was introduced or tendered by the defendant to show that the voter was a resident of ward 5; so the latter objection was correctly overruled, irrespective of the legal question presented as to whether a collateral attack can be made on the qualifications of a voter.

Ballot marked “P-16” was objected to on the ground that the certificate as to qualification attached to it is incomplete and unsworn to; and on the further ground that the voter was not on the registration list. Section 35 of Act No. 130 of 1916 provides that, if a voter’s name has been accidentally omitted from the registration list, the election commissioners before permitting him to vote shall obtain an affidavit, made by him, to that effect. A mere certificate, such as the one attached to the ballot, is an insufficient compliance with the requirements of the statute; but, as there is no evidence in the record that the voter’s name was not on the registration list, we do not feel justified in assuming that it wa$ not, because of the abortive attempt of the commissioners to comply with the statute. The objection, we think, was properly overruled. ■

Ballot marked “P-22” was objected to for -tiie reason that it was not properly stamped as required by law. The ballot is marked by a cross-mark, wholly outside the circle inclosing the party emblem; and, in our opinion, must be considered as having been marked for identification. Statutes prescribing the form of printed ballots and the kind of paper on which they are to be printed, and prohibiting marks, figures, or devices thereon by which one can be distinguished from another, are designed to preserve the secrecy of the ballot and to prevent fraud and intimidation, or bribery; and- they ■ are generally, and should be, held to be mandatory.

We find the rule stated in Corpus Juris, Elections, page 157, to be as follows:

“Under the statutes requiring the voter to mark his ballot in the circle at the head of one of the columns or within a voting space opposite the candidate’s name for whom he wishes to vote, it has been held -that a cross mark elsewhere is insufficient. Under this rule it is held that a cross indicating the voter’s choice for a particular candidate must be either wholly or partly within the square opposite such candidate’s name. * * * So it has been held that a ballot marked with a cross at the head of a party ticket, but not within the circle as required hy the statute, cannot he counted for any candidate on the ticket so marked.”

The rule as stated in 15 Cyc., Elections, page 354, is as follows:

“In order to permit the counting of the ballot the voter’s intention must be manifested by a cross mark substantially in the place designated showing an honest intent to follow the directions of the law.”

Identically the same rule prevails in Louisiana and has. been applied by the Supreme Court in a number of cases, including Vidrine v. Eldred, 153 La. 783, 96 So. 566; Hendry v. Democratic Executive Committee, 128 La. 465, 54 So. 943; and Perez v. Cognevich, 156 La. 331, 100 So. 444. The rule has also been applied by this court in Brantley v. Smith, 6 La. App. 182. The ballot must be considered as having been marked for identification, and not in accordance with the law. The objection should have been sustained, and the vote not counted.

The defendant next objected to ballot marked “P-26” upon the ground that it was identified by a large' purple splotch in the blank column for school board member. The mark has all of the appearances of an intentional mark for identification, and the objection should be sustained and the ballot not counted.

Ballot marked “P-29” was objected to by the defendant as identified by two purple marks on the party emblem. The objection is good, and the ballot should be rejected.

Ballot market “P-47” was the next objected to, and for the reason that the mark was outside the circle inclosing the party emblem. The mark is not entirely outside the circle and evidences a bona fide attempt on the part of the voter to comply with the law. The objection should be overruled.

Ballot • marked “P-53” was objected to for the reason that the party emblem is stamped three times. The objection is sustained, as the ballot is identified.

Objection was made to plaintiffs’ offering of ballot marked “P-62,” and was sustained by the trial court, and we think properly so, as it does not appear to have been a vote actually marked and cast.

The plaintiffs next offered in evidence ballots, marked “P-63” to “P-78,” inclusive, for the stated purpose of showing that, though the voter wrote the name of the defendant thereon in the blank column prepared for the purpose, he failed in each instance to' place the official stamp opposite the name so written; and that the votes were invalid, of no legal effect, and should be rejected. The offering was objected to by the defendant as not being responsive to the allegations of the petition, and was admitted subject to the objection by the court.

After attempting to adduce evidence to disqualify Mr. and Mrs. Jim Howard, and others, alleged in the petition to be ineligible to vote, the plaintiffs rested their case.

The defendant offered in evidence ballots marked “D-61” to “D-63,” all of which bear the name of Cutrer written by the voter in the blank column prepared for the purpose. This tender of ballots in evidence included plaintiffs’ offering “P-63” to “P-78,” on which the official stamp was omitted. The plaintiffs made no objection to the evidence, it was filed and the case closed.

The defendant urges that plaintiffs’ attack’ on ballots marked “P-63” to “P-78” is beyond the pleadings. That is true; but it is likewise true that defendant’s attack on ballots marked “P-i,” “P-16,” “P-22,” “P-26,” “P-29,” “P-47,” “P-53,” and “P-62” is beyond the pleadings. It seems apparent that the scope of the inquiry was broadened by mutual consent in order that it might be determined from the contents of the ballot box which of the candidates had received a majority of the legal votes cast for the office. The defendant must have so understood it as he initiated the attack, which was of the same character as that of which he now complains. After the plaintiffs had filed the ballots for the purpose of .questioning their validity, the defendant filed them as legal votes cast for him; and it, must be considered that he filed them subject to the objection as to their validity made by the plaintiffs. If it be held otherwise, the court would permit the defendant to open an inquiry, and to launch an attack beyond the scope of the pleadings, and restrain the plaintiffs from a counter attack on the subject of the inquiry. The defendant has provoked an issue beyond the pleadings, and used it to his own advantage. He will not be heard to object to the plaintiffs meeting that issue.

The question is fairly presented and •must be considered as to whether a ballot should be counted, upon which the name of an independent candidate is written by the voter, but the official stamp opposite the name is entirely omitted.

Section 73 of Act No. 130 of 1916 provides :

“If he desires to vote for a person other than' a nominee or political parties, he must write in his own handwriting the name of such person in the space provided for such purpose, with a pencil having a black lead, and stamp with the official stamp the white square in the voting space at the right of the name so written.”

It must be conceded that, if the voter writes the name of the independent candidate on the ballot in the proper place, he has expressed an intention to vote for him, but has he actually voted for him, if the statute requires that he stamp with •the official stamp the white square in the voting space, and he has not done so? We must answer in the negative. It is not the act of writing the name on the ballot which constitutes the essential act of voting, it is the stamp properly placed. The intent of the voter should be sought and considered, but the intent must be expressed, however poorly and inaccurately, in the manner provided by the statute. State v. Williams, 97 Fla. 159, 120 So. 310; 20 Corpus Juris, Elections, page 156, sec. 185; Hunt v. Campbell, 19 Ariz. 254, 169 P. 596; Riley v. Trainor, 57 Colo. 155, 140 P. 469; Powers v. Baum, 277 Ill. 200, 115 N. E. 172; Ogg v. Glover, 72 Kan. 247, 83 P. 1039; King v. McMahan, 179 Ky. 536, 200 S. W. 956.

The affixing of the stamp is mandatory, and its omission is fatal to the validity of the ballot. The sixteen ballots, therefore, marked “P-63” to .“P-78” should be rejected.

The official returns show that Jacobs received sixty-two votes and Cutrer sixty-three. As five of Jacobs’ votes and sixteen of Cutrer’s votes have been rejected, the result now obtained is Jacobs, fifty-seven, and Cutrer, forty-seven.

The question of the ineligibility of Mr. and Mrs. Jim Howard to vote in ward 6, and the correctness of the ruling of' • the district court on the admissibility of evidence tendered on that question, will not be' discussed, as the result cannot be affected thereby. '

Therefore, for the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that L. W. Jacobs; having received a majority of the votes cast at the general election held on November 4, 1930, be declared to have been elected as a member of the Natchitoches parish school board from ward 6.


source: Caselaw Access Project

license: Public Domain

text:
    No. 3695
    Second Circuit (Second Division)
    HINCKLEY v. CAULEY (McDADE, Intervener)
    (July 16, 1931. Opinion and. Decree.)
    Harry Y. Booth, of Shreveport, attorney* for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant and intervener.
   STEPHENS, J.

The plaintiff, alleging that the defendant is indebted to him in the sum of $150 for four months’ rent at $37.50 per month for the use and occupancy of premises No. 669 Egan street in the city of Shreveport, La., caused a writ of provisional seizure to issue, and certain household effects to be seized thereunder on premises No. 6003 Fairfield avenue of the same city. Defendant filed a motion to dissolve the writ of provisional seizure upon technical grounds, and on. the same day her sister, Mrs. J. C. McDade, interposed an intervention and third opposition, in which she asserted the ownership of the property seized, and prayed for its release, and damages in the sum of $1050.

The motion to dissolve the writ and the intervention . and third opposition were tried, and, after the trial thereof, the whole case was submitted on the evidence as. adduced, and a judgment was rendered in favor of plaintiff in the sum of $150; maintaining the writ of provisional seizure and rejecting the demands of the intervener. The defendant prosecutes a devolutive appeal, and the intervener a suspensive and devolutive appeal.

The plaintiff has moved the dismissal of intervener’s appeal on the ground that the defendant has not appealed; and that the record does not disclose the value of the seized property, the ownership of which is claimed by the intervener; and that therefore this court is without jurisdiction.

The plaintiff assigns, no reason for. the statement that the defendant has not appealed. An examination of the record discloses that a devolutive appeal was lodged in this court on behalf of the defendant. The appeal continues to exist for the purposes of this motion, until plaintiff causes, its dismissal for valid reasons assigned.

If the right of appeal on the main demand existed, whether it be exercised or not, the appeal will lie to the court having jurisdiction thereof, and not to the court having jurisdiction of the incidental demand resulting from the intervention. If the main demand is withdrawn, abandoned, or disposed of in such manner that no controversy exists with reference to it, the incidental demand, or, as in this case, the demand in intervention, becomes, the main demand, and the appeal will lie to the court having jurisdiction of the main demand as thus created.

The plaintiff herein sued for and obtained judgment for $150. The defendant appealed. The main demand is for $150, which is the proper basis for establishing appellate jurisdiction in the case. The motion to dismiss the appeal is overruled. Section 1, article 7, Constitution of 1921; Succession of Mingo, 143 La. 298, 78 So. 565; Thompson v. McCausland, 137 La. 13, 68 So. 196.

It was established by a fair preponderance of the evidence, we think, that the defendant owed plaintiff for the rent claimed, that is, $150; that two days before the seizure of the household effects they were removed from tha leased premises to the premises where seized, and that they were the property of the intervener, Mrs. McDade. The defendant Mrs. McCauley, in her testimony, disclaimed ownership of the household effects, which disposes of her motion to dissolve the writ of provisional seizure. She further testified that the property was placed in her possession by her sister, the intervener, at the time of the latter’s marriage some five years before the institution of this suit; that from time to time her sister visited her and ■lived with her, but though the effects remained in her possession the title thereto remained in her sister.

The intervener testified to the same effect, and was corroborated by Mr. Snell, a furniture dealer, who testified that he had sold the intervener articles of furniture and household effects, which correspond with those seized, some seventeen years prior thereto. He did not identify the furniture, but said he believed that he could if it were shown him.

The plaintiff relies solely on. the facts that the defendant did not disclaim ownership of the- household effects, nor did the intervener assert ownership thereof at the time of the seizure; and that the defendant was in possession of the property, .both before and at the time of the seizure.

The claim of the intervener is suggestive of a fraudulent arrangement between her and her sister, the defendant, to defeat the privilege of the plaintiff, but fraud is never presumed, and is not established by the facts adduced in this case. Clearly the ownership of the intervener should be recognized.

As the household effects were not seized on the leased premises, the sole remaining question is whether the property of a third person is affected by a lessor’s privilege after its removal from the leased premises.

It is well settled that a lessor’s lien exists on goods or effects of third persons only so long as such goods or effects are on the leased premises. Article 2707, Civ. Code; Lesseps v. Ritcher, 18 La. Ann. 653; Merrick v. LaHache, 27 La. Ann. 88; Burn Planting Co. v. Goldman Landing Co., 163 La. 720, 112 So. 662.

The intervener has withdrawn her demand for damages. •

For the reasons assigned, the judgment appealed from is affirmed, in so far as it was decreed therein that plaintiff have judgment against the defendant in the sum of $150, with legal interest from judicial demand until paid; but otherwise it is annulled, avoided, and reversed, and there is now judgment in favor of the intervener and against the plaintiff, recognizing her ownership of the property under seizure, and ordering it released therefrom; all costs to be borne equally by plaintiff and defendant.


author: CULPEPPER, J.

text:
    No. 3689
    Second Circuit (Second Division)
    FLOURNOY v. ROBINSON-SLAGLE LBR. CO., INC.
    (July 16, 1931. Opinion and Decree.)

      ' Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys, for defendant, appellant.
   CULPEPPER, J.

Plaintiff sued to have an alleged pretended materialman’s lien against her property canceled from the records, and, in connection with the suit, asked for damages in the sum of $500 by reason of injuries she alleges she suffered on account of illegal demands made upon her by defendant to pay for material, and repeated threats to sue plaintiff if same was not paid, notwithstanding repeated protests that she did not owe the debt; all of which acts of defendant are alleged to have been wrongful, malicious, and done with intent to injure plaintiff, and did cause her great worry, anxiety and exasperation. In addition to the claim for $500, plaintiff asks for $150 as attorney’s fee incurred to obtain cancelation of the lien from the mortgage records. From a judgment in favor of plaintiff, awarding her damages in the sum of $150, defendant has appealed. Plaintiff has not answered the appeal but urges in brief and in argument that the amount of judgment should be increased to $250.

Mrs. Lou S. Flournoy, plaintiff, owned and resided in the dwelling at No. 836 Dalzell- street, in the city of Shreveport. She was a widow at time of occurrence of the incident giving rise to this lawsuit. This property constituted her home, and that of her aged mother who resided with her. Plaintiff’s only means of support was from roomers taken in her home, except that she owned a small amount of building and loan stock from which she derived sufficient revenue with which to pay taxes and insurance.

Some time in 1927 plaintiff contracted, in writing, with one F. H. Tolle, a local contractor recommended to her by some of her neighbors, to do some repair work upon her residence at a cost of about $1,200. The contractor obligated himself to furnish all materials and labor. The work was completed early in August, 1927, and plaintiff made final settlement with the contractor on the 6th.

The defendant had sold plaintiff’s contractor lumber and materials to use in making these improvements aggregating in value, $417.30. Not being ■ able to collect from the contractor, defendant, on December 23, 1927, sent its salesmanager, Mr. L. C. Allen, to locate the building and its owner for the purpose of collecting from the owner this account. Upon locating the building and learning the name of the owner, Mr. Allen returned and called plaintiff over the telephone and made demand on her to pay the bill. Upon plaintiff’s refusal to pay, Mr. Allen, representing defendant, executed a formal lien, attached sworn itemized statement of the account and caused it to be filed and recorded on the 28th day of December, 1927.' On the same day he addressed to plaintiff by registered and special delivery mail the following letter, which was delivered to her in her home:

“Mrs. Lou S. Flournoy,
836 Dalzell,
City.
“Dear Madam:—
“We are enclosing herewith sworn itemized statement for the sum of $417.30, which represents material sold to F. L. Tolle, contractor, and used by him in repairing and reconstructing of a dwelling owned by you on Lot 5 and E. 10' of Lot 4, Block 1 of the Thornhill subdivision, City of Shreveport, La.
“Also certified copy of a lien filed against your property on December 28th, 1927.
“This is to advise that we are looking to you as owner, for payment of this material bill and trust that you will make arrangements to take care of same, thereby saving yourself the expense and embarrassment of a suit to enforce collection.
“Yours very truly,
“Robinson Slagle Lumber Company,
“L. C. Allen, Sales Manager.”

Plaintiff alleges in her petition that Mr. Allen called her twice over the telephone, the first time on or about the 23rd of December and then again called her a few days later. In her testimony, however, she admits .she called only once, or if twice, she does not remember but the one conversation with Mr. Allen. Mr. Allen says he called Mrs. Flournoy only one time. The only other communication had with Mrs. Flournoy was the letter addressed to her, written by Mr. Allen, on December 28th, to which were attached the itemized statement of bill of .materials and copy of the recorded lien.

Plaintiff alleged in petition that when Allen called her he told her RobinsonSlagle Lumber Co. had furnished material to the contractor for her house to the extent of $417.30, which had not been paid and that she was liable for same, and demanded immediate payment, and threatened to record a lien against her property if she did not pay; that Allen tried to intimidate plaintiff into paying the bill; that she protested against paying the bill because under her contract the contractor was to pay for all the materials; that she had nothing whatever to do with paying for the materials. She alleges she protested against any lien being filed against her property.

It is further alleged:

“That in making said repeated demands of petitioner and in filing and recording said lien, the defendant knew that petitioner was in no wise responsible for the debt claimed against said contractor and that the filing of said pretended lien was wrongful and malicious and done with the intention of injuring petitioner; that at the time the demand was made upon petitioner by the defendant, petitioner’s mother was quite ill, demanding all of petitioner’s time and attention; that on account of the Christmas season petitioner was unable to get in communication with her attorney, ^and for several days she was greatly worried and exasperated by the injury and wrongful demands and threats of defendant; and that she has been damaged and injured in worry, anxiety, and exasperation by the wrongful demands of plaintiff and the wrongful registry of said pretended lien in the sum of Five Hundred ($500.00) Dollars, and;
“That she has incurred obligation for attorney’s fee to the extent of One Hundred Fifty ($150.00) Doilars to obtain cancellation of said lieh * * *.”

Defendant in answer made general denial, but admitted telephoning plaintiff advising her of defendant’s claim for materials furnished, admitted, advising plaintiff that unless same was paid it would be necessary to record a lien on her premises, admitted having the lien recorded, also admitted writing the letter alleged upon, with inclosure of statement and copy of lien. Further answering, defendant alleged,

“* * * that it has ascertained and believes that the lien recorded by it * * * was recorded too late.
“It avers that it did have a lien and privilege upon said property for the payment of said debt for said materials as alleged, but that, solely owing to the delay in recording same, that lien has no legal effect.
“It avers that it has ordered the cancellation of said lien, and that same has been duly cancelled on the records of Cad-do Parish, Louisiana.
“It avers that no demand has ever been made upon it to cancel said lien before the filing of this suit.”

The lien complained of was voluntarily canceled by defendant immediately upon the filing of the suit, and before a hearing on same. The issues before the court upon the trial of the case were thus narrowed down to the question of damages claimed.

No testimony was adduced before the court as to the amount of attorney’s fee. At the conclusion of the trial an agreement between counsel was entered in the record that in event the court should hold attorneys’ fees are allowable the court should fix the amount. The court, however, in its judgment, made no mention of attorneys’ fees. We therefore take it that none was allowed. Plaintiff’s counsel filed no answer to the appeal asking for allowance of attorneys’ fees, and we shall not pass upon that question, as we assume the claim has been abandoned.

Plaintiff testified substantially the same as she alleged in her petition. When asked as to the effect these demands had upon her, she said:

“Of course, I was so excited at that time; I don’t know that I remember that there was a sixty-day limit to their time to notify me, but I told them I didn’t think I could be held for it.”
“He said I would have to pay it.”
“I don’t know whether they said they would bring suit or not; they said they would hold me responsible.”

Asked by the court if anything was said about a lien against her property, plaintiff replied:

“I didn’t know they were going to put that lien until this special delivery registered letter came.”

She says Mr. Allen told her that their lawyer would attend to the matter.

Asked by counsel if her mother was sick at time this conversation was had, witness replied:

“She had the flu in September and had laid in one position for several months, and I was so troubled and anxious ’ I couldn’t remember as well as I should and when that second notification was made (meaning the letter) I was in bed with flu; was lying there on the other bed and I was so disturbed it run my fever up.”

On cross-examination plaintiff testified she was confined in bed several days after the incident about the letter, and that her mother died soon after that.

Mr. Allen, in explaining why he telephoned plaintiff, testified that after being unable to locate and see Mr. Tolle, the contractor, about collecting this bill of lumber for his company, he then set out to locate plaintiff’s house; that finding the house and the name of its owner, Mrs. Flournoy, he went back and phoned her; asked her if she had had some work done by Mr. Tolle and she said she had; that he then told her Mr. Tolle had not (paid Robinson-Slagle Company in full for the material the company had sold him to go into her house. He said Mrs. Flournoy was surprised and said she had paid Tolle in full, and he then told her “it looked as if we would have to file a lien on the place and regretted it very much.” Asked 'if he had any feeling of malice against Mrs. Flournoy, Mr. Allen answered that he had none.

Witness testified he had never met plaintiff before and she had never had any dealings with defendant company. He says he was influenced by no desire other than to protect legally the interest of his employer in doing what he did.

Apparently what Mr. Allen said during his conversation with Mrs. Flournoy was about the same that he wrote h'er in the letter.

Plaintiff relies upon the broad provi:' sions of the article 2315 of the Civil Code, that '

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

In Graham v. Western Union Telegraph Co., 109 La. 1070, 34 So. 91, 93, being a suit for damages for mental pain and anguish occasioned the mother for failure of defendant to deliver a message to her announcing the mortal illness and approaching death of her son, the court said:

“In this state matters have not been permitted . to rest on judicial opinion as to what the law would or should authorize. The lawmaker has expressly declared in article 1934 of the Civil Code that there are case’s in which damages may be assessed .without calculating altogether on the pecuniary loss or privation or pecuniary gain to the party. * * *
“Mental pain and suffering, as to their existence, are certainly as actual, clear, and positive as are intellectual enjoyment and gratification, and the former are .as susceptible of being ascertained and gauged as are the latter * * * if a man who has used harsh and insulting language to another, short of defamation, can be held legally to respond in money for the humiliation which he has caused the latter to, suffer, no good reason can be assigned why mental pain and suffering could not and should not furnish equally the basis for a judgment for damages.”

The court further said:

“There are many matters from which resulting injury may be presumed and inferred on proof of the existence of the things themselves, leaving the extent of thé injury and the amount properly to be awarded to the party suffering the injury to be determined by the sound discretion of the courts.”

We think plaintiff is entitled under the law to some damages. She was a lady of refinement evidently, in moderate circumstances, it is true. She was not in good health at the time and was burdened with the care of an invalid mother. The demands made upon her, and as made, were admittedly without foundation in law or in fact, and constituted an invasion of her legal rights. As a result it became necessary for her to take some steps to redress the ■ wrong that had been admittedly done.

Liens are stricti juris. The only way defendant could have ever collected this amount was to comply strictly with the law (Civil Code, art. 3272) in order to' subject plaintiff’s property to a lien. There never was at any time any personal obligation on her part to pay the debt, and when, after the expiration of the time limit within which to file a lien, defendant burdened, or sought to burden, plaintiff’s property with a lien, accompanied by threats to sue her, it was not only an error, but was calculated to cause, and did cause, an ill, sensitive woman, who had never had a lawsuit in her life, a great deal more worry and concern than it would have given a man of affairs. It was aggravated by being made during the particular time that it was, the Christmas holiday season.

There may have been no malice on the part of defendant, but none, we think, was necessary when the act complained .of was a trespass upon and an invasion of the rights of a wholly innocent person, under circumstances calculated to cause humiliation and worry to a woman who was called upon, as plaintiff was, without any basis of law, to give up her meager savings, which to her must have been a large sum. And, besides, to be threatened with a suit and a foreclosure upon her very home, in which she and her invalid mother lived, on account of an unjust lien, was calculated to cause her very great anxiety; and the thought to her that she would be compelled to -, raise the money or fight a lawsuit, under her condition and circumstances, no doubt, must have appeared to her little short of disaster.

To permit defendant to go without making any sort of restitution would, we think, be to punish the innocent for the sins of the guilty. While, if we were trying the case, as did the lower court, we might not have awarded as large a sum as the court did, we do feel that some amount should be awarded. We do not feel, however, that we should interfere with the finding of the trial judge in that respect, as such is left largely within his discretion. Evidently the trial judge, who saw and heard plaintiff testify, and who was in position to tell as to the extent of her suffering, mental worry, and anxiety, came to the conclusion that the circumstances justified and called for the award for the damages claimed and in the amount granted by him. We cannot say there is any manifest error in the judgment, and same is therefore affirmed.


author: TALIAFERRO, J.

text:
    No. 3637
    Second Circuit (Second Division)
    UNITED STATES CUTLERY CO. v. HAWKINS
    (July 16, 1931. Opinion and Decree.)

      William H. Cook and L. A. Newsom, of Shreveport, attorneys for plaintiff, appellee.
    Robert L. Garrett, qf Shreveport, attorney for defendant, appellant.
   TALIAFERRO, J.

Plaintiff sued defendant (doing business as Shreveport Show Case and Fixture Store) for $111.08, being the price of certain cutlery ordered by him, through plaintiff’s representative, on January 24, 1928, and shipped by railway to him March 9th following. The cutlery consisted of four gross of steak knives, the cost price of which was $108, and four kitchen sets, the cost price of which was $3.08. These goods were sold on following terms: 2 per cent 10 days; 30 days net, which means that defendant had 30 days to make payment without any discount. Duplicate qf the invoice of said goods was attached to and made part of the petition.

Defendant admits ordering and receiving the goods described in the petition but avers that same were found to be defective and inferior and that plaintiff was so notified; that plaintiff agreed to accept return of the steak knives and credit defendant with the price of same, and in keeping with this agreement defendant, on June 2, 1928, shipped these knives back to plaintiff and. should have been credited with the price thereof, $108, which would leave $3.08 balance due on the account; that this balance had been offered and tendered to plaintiff, which was refused, and the amount was then tendered in open court.

Defendant prays that plaintiff’s demand ■be rejected at its cost.

Plaintiff recovered judgment for the amount sued for and defendant prosecutes this appeal.

On May 12th, following arrival of goods above described,, defendant wrote a letter to plaintiff in words as follows:

“In regard to the order of steak knives you sent us, will say we would like to return them to you as business is very quiet here and we are not selling them and at present we cannot pay for them. So we like to return them to. Let us hear from you about the matter.”

This letter was received by plaintiff May 15th and on the following day was answered. In its reply plaintiff stated that the order for the goods was given their representative on January 24th, was received January 28th, and shipment made March 9th. These facts, the letter states, were mentioned because if defendant knew that he would be hard pressed to pay the account when it fell due he should have given plaintiff notice to that effect before shipment was made, as he had over 30 days time, and the order would have been canceled. In conclusion, plaintiff, in this letter of reply to defendant, says:

“However, in a partial effort to meet your views, we will allow you to return the stainless steak knives only, not the kitchen sets of which four were sent you, as the boxes would only be broken and the goods damaged by the time they would be received and the costs of these sets is not large, providing you prepay the transportation charges and the cartage both ways and pay for the sets that you must retain.
“If this proposition meets with your approval, kindly let us know by return mail the quantity of each of the steak knives you are returning and we will credit your account for the amount received.”

The situation thus remained until on June 5th plaintiff wrote defendant enclosing statement of his account of $111.08, calling his attention to the fact that it was 90 days past due, and requesting payment in full. Defendant does not admit receiving this letter. It should have reached him in about three days. On June 8th the box containing the steak knives, return of which plaintiff conditionally agreed to accept, .was delivered to the railroad at Shreveport, consigned to plaintiff at Belleville, New Jersey. The bill of lading showing shipment of these knives is dated June 2nd but the railway’s receipt, stamped on it bears date June 8th. The evidence is not conclusive on the point but the circumstances strongly indicate that plaintiff’s letter of June 5th motivated the shipment of these knives on June 8th.

. Defendant, while testifying on direct-examination, stated he answered plaintiff’s letter of May 16th accepting the proposals therein made, but on cross-examination admitted that he made answer thereto by returning the goods. We aré inclined to accept this latter evidence as correctly reflecting defendant’s attitude in this connection. He admitted to plaintiff’s attorney he did not answer this letter of May 16th. He avers in his answer, verified by himself, that he notified plaintiff of the defects in the steak knives, but testified as a witness that he mentioned the matter to plaintiff’s representative only. In his letter of May 12th to plaintiff no reference is made to the knives being inferior or defective. He wanted to return them because business was not good and he could not pay for them.

Plaintiff’s position is that as defendant did not accept promptly and comply with the conditions of its proposal contained in its letter of May 16th it had the right • to withdraw the offer at will, and, in fact, by its letter of June 5th demanding payment of the entire account of $111.08 did, tacitly, if not expressly, withdraw the proposition.

Defendant argues that he accepted plaintiff’s offer of May 16th by writing him to that effect and followed this up by returning the goods on June 2nd, but he does not contend that one part of plaintiff’s offer was complied with, to-wit: The payment of the balance on account of $3.08, if credit had been given for the invoice price of the • steak knives. Payment of this amount was only offered to plaintiff’s attorney immediately before this suit was filed in November, 1928.

At the time defendant initiated the move to have plaintiff assent to the return of the steak knives and give him credit for price of same, he was unconditionally bound for its payment. We do not think him serious in the defense passively asserted to the effect that these knives were defective and inferior. If plaintiff cared to relieve defendant’s hard-pressed condition to any extent it certainly had the right to prescribe the terms and the conditions upon which such relief would be given, so far as its account against him was concerned. The letter of May 16th lays down the terms, in part clear and in part ambiguous, which defendant was required to meet in order that he would be relieved from payment of the price of these knives. Under the circumstances it required a strict compliance on part of defendant with the terms imposed upon him by plaintiff if he would exact specific performance by plaintiff. We do not think he did this.

We think .a reasonable construction of the second paragraph of the quoted portion of plaintiff’s letter to defendant of May 16th is this: That defendant should advise plaintiff by return of mail if he accepted the proposal of the letter, and follow such acceptance by immediate shipment of the knives, without cost or expense to plaintiff, and by payment of the $3.08, balance due on tbe account.- Why should plaintiff insist on being advised by return mail if its proposition was accepted unless it expected the goods to be returned as promptly? The acceptance of the proposition by formal letter did not mean much to plaintiff unless the goods were immediately returned. Plaintiff desired to know “by return of mail the quantity of each of the steak knives you are returning.” Not the quantity of knives you will return, or you expect to return, but the quantity “you are returning,” which, according to what we deem a reasonable construction, means being returned contemporaneously with the writing and mailing of the letter advising of the shipment of the goods. Defendant did not do this, even should it be held that he immediately wrote plaintiff accepting its terms for the return of the knives.

Our conclusion is that on June 5th plaintiff had heard nothing from defendant With regard to the return of the knives, since writing him May 16th, and, therefore,’ withdrew its offer to accept return of the knives, and the matter reverted to the original relation between, the parties.

We quote the following from 6 R. C. L., page 610, hearing upon the above discussed issue:

“In transactions between persons who are at a distance from each other it is customary not only to communicate offers by mail, but to accept them in the same manner” * *■ * “where an individual makes an offer by post, stipulating for, or by the nature of the business having the right to expect, an answer by return of post, the offer can endure only for a limited time, and the making of it is accompanied by an implied stipulation that the answer shall be sent by return of post. If that implied stipulation is not satisfied, the person making the offer is released from it.” Maclay .v. Harvey, 90 Ill. 525, 32 Am. Rep. 35.

And the, following from C. J., vol. 13, page 280:

“Where the offer, specifies a time of acceptance, an acceptance after that time will be nugatory as an acceptance, unless the offerer -assents thereto, with full knowledge that it was not made within the period named. An offer which calls for a reply ‘by return mail,’ ‘in course of post’, or the like must be accepted by mailing an answer either by the next mail after it is received or during the same day that the offer is received.” Waterman v. Banks, 144 U. S. 394, 12 S. Ct. 646, 36 L. Ed. 479; Carr v. Duval, 14 Pet. 77, 10 L. Ed. 361.

On page 297 the author further says:

“An offer comes to an end at the expiration of the time given for its acceptance- — a limitation of the time within which an offer is to run being equivalent to the withdrawal of the offer at the end of the time named.”

Judgment affirmed.


author: DREW, J.

text:
    No. 3659
    Second Circuit
    STINSON v. DRIGGERS
    (May 20, 1931. Opinion and Decree.)

      J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued on open account and secured judgment in the lower court, as prayed for. Defendant appealed to this court, and during the pendency of the appeal paid and settled the judgment in full. Appellee has filed a motion to dismiss the appeal for that. reason and appellant’s counsel in this ' court admitted the correctness of the allegations in the motion.

The judgment of the lower court has been fully acquiesced in by appellant and there is nothing before this court. The motion to dismiss the appeal will have to be sustained. It is therefore ordered, adjudged and decreed that the appeal taken herein is dismissed, at appellant’s cost.


author: ■ CULPEPPER, J.

text:
    No. 3432
    Second Circuit (Second Division)
    CAMPTI MOTOR CO., INC., v. BOX (STAR GAS CO., INC., intervener and Third Opponent)
    (July 16, 1931. Opinion and Decree.)

      Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, attorney for intervener and third opponent, appellee.
   ■ CULPEPPER, J.

The contest in this case is between plaintiff in- the main suit and the intervener and third opponent, mainly as to whether or not plaintiff’s lien and privilege arising under Act No. 209 of 1926 for accessories furnished and labor performed for repairs upon defendant’s truck and trailer could be enforced subsequent to the sale of the truck by defendant to intervener.

Plaintiff, the Campti Motor Company, Inc., sold defendant, "W. H. Box, certain automobile parts, tires and other accessories for use on defendant’s Nabor Spring Trailer Chevrolet 1927 model truck and trailer; also performed certain labor on same for defendant, aggregating in amount the sum of $109.91. On April 28, 1928, plaintiff filed suit against defendant on said alleged indebtedness, prayed for and obtained a provisional seizure of the truck and trailer upon its alleged lien and privilege upon the property to secure' the debt, as provided for in said Act No. 209 of 1926. The property was accordingly seized by the sheriff, the seizure taking place, according to the evidence in the record, in the afternoon of the 28th of April. The. exact hour is not made clear from the 'testimony. One witness testified it was between 3 and 4 o’clock; another places the hour at about 2 in the afternoon. The returns of the sheriff on the writ do not show the hour of the day -the seizure took place.

On April 30th, two days after the seizure, the Star Gas Company, Inc., intervener and third opponent herein, through its manager, Mr. J. H. Roberson, made an affidavit of ownership of the property seized, in which it is averred:

“Affiant further deposes a.nd says that the property so sequestered and described above is not and was not at the time of said seizure the property of the said W. H. Box, but was the property of the Star Gas Company, Inc.; that said Star Gas Company, Inc., obtained said property from said W. H. Box on April 28, 1928, for the consideration of the sum of three hundred and fifty and 25/100 dollars; that the Star Gas Company, Inc., was, at the time of said purchase unaware of any alleged claim against the said property other than a chattel mortgage for the sum of $86.25, and purchased • said property in absolute good faith and for a valuable consideration. This affidavit is made in order that said property may be released from seizure, or a bond of indemnity furnished by plaintiff to secure such damages as the Star Gas Company, Inc. may sustain herein.”

On the reverse side of the above mentioned affidavit is what purports to be an indemnity bond.

The sheriff refused to deliver the seized property to the Star Gas Company, Inc., and on May 10, 1928, said Company filed petition of intervention and third opposition, setting up ownership of the property, reiterating the same claim of ownership as was averred in its affidavit previously made, and in addition, alleged that the property was not liable for the debt sued for by plaintiff; that the seizing creditor had no lien or privilege of any kind upon same. Intervener also set up claim for damages by reason of the alleged illegal seizure of the property and the refusal by plaintiff to release same under the affidavit made, in the sum of $90 for loss of use of the property and $45 for attorney’s fees incurred. Intervener accordingly prayed for judgment decreeing it to bé the owner of the property seized and same ordered delivered to it, free of encumbrances; also prayed for damages in the sums above set out.

Plaintiff in the main suit filed answer of general denial to the petition of intervention, and specially alleged it had no knowledge at the time it seized the property that any sale of same had been made to anyone; averred that there was no record of any such alleged sale on the records of Natchitoches parish, as required by law in such cases; that the law takes no consideration of parts of a day in a case like this wherein the seizure and alleged sale took place on the same day, viz.: April 28th; that it was a matter of common knowledge in the village of Camp-ti, the place where plaintiff and defendant resided, that defendant was indebted to plaintiff for accessories furnished and for labor and repairs made upon the truck; that intervener was aware of such facts, and failed to exact from defendant Box an ■ affidavit that the property was free from debt and that no lien or privileges existed on same; denies intervener was in good faith as alleged; admits intervener filed affidavit of ownership and respondent’s refusal to release the property, for the reason that it believed, in good faith, that, the property seized was both in law and in fact the property of its debtor, Box; further averred it was well within its rights in refusing to release the seized property, but did execute an indemnity bond in favor of the. sheriff as required by law, and avers that under the law intervener’s remedy fpr damages is a suit on the bond, and not in connection with the intervention; that therefore the claim for damages as alleged on is premature and illegal. Prays that intervener take nothing by this action, etc.

The case went to trial upon the issues - as thus set forth, resulting in a judgment • in favor of intervener, decreeing the property to belong to and ordered sent into intervener’s possession free from any liens or privileges; also giving moneyed judgment for. intervener in the sum of $45 as-attorney’s fees and rejecting the demands., for deprivation of use of the property. Prom this judgment, plaintiff in main suit, Campti Motor Company, Inc., has appealed. It will be noted that W. H. Box, defendant in main suit, did not contest the suit against him and judgment was rendered against him by default for the sum claimed.

That portion of Act No. 209 of 1926 applicable to the points in this case reads as follows:

“That any * * * corporation operating or conducting a garage, machine shop, repair shop, or other place where automobiles, trucks * * * are repaired or parts made therefor, regardless of whether such automobile, truck or machine be physically in such establishment during the making of such repairs or of parts for necessary repairs thereto, or regardless of whether such parts be actually attached in such establishment or elsewhere, * * * shall have a lien and privilege upon the automobile, truck, or machine * * * for a period of ninety (90) days from the date of making of such repairs or parts or performing such labor, said period to run from thq last day such repairs * * * are made or labor performed * * *; and shall be entitled to enforce such lien and privilege by the writ of provisional seizure; provided, that this lien and privilege shall have no effect against * * * bona fide purchaser of such automobile, truck or machine to whom possession of 3ame has heen delivered and for which the purchase price has been paid, without previous notice to such purchaser of the existence of such lien and privilege.”

There is no dispute as to the fact that plaintiff in suit held a lien and privilege upon the truck and trailer, as furnisher of the accessories for and performance of labor thereon, at the time of the alleged sale by defendant Box to intervener. Furthermore, the evidence abundantly shows that the sale was actually and in fact made prior to the time of the provisional seizure. Negotiations for the sale were begun around 9 or 10 o’clock in the morning of the 28th of April, and was finally closed out about the noon hour of that same day by payment of the price and delivery of the truck and trailer to the purchaser, intervener herein, at intervener’s place of business, where the truck and trailer were located at the time they were seized by plaintiff in suit some time between the hours of 2 and 4 in the afternoon of that same day. Mr. Roberson, manager of intervener company and who made the purchase for his company, was interrogated at length on cross-examination as to the price paid in an effort by counsel to show that no consideration, or price, had in fact been paid. Also defendant Box was severely cross-examined on that point. Their testimony, however, convinced the trial judge, as it does this court, that intervener did in fact pay for the property the price alleged to have been paid, which was $350.25.

It is equally certain from the testimony of these two gentlemen, Mr. Roberson and Mr. Box, and fully corroborated by the other testimony in the record, that intervener at the time of its purchase of the property knew nothing whatever of the existence of the Campti Motor Company’s lien and privilege upon same. Mr. Roberson testified that he asked Mr. Box at the time if there were any liens against the property, and Box told him there were three mortgage notes for $28.75 each against it. Being asked by counsel if he had any knowledge of any othér lien or claim against the property at the time he purchased it, Mr. Roberson said he did not; that he did hot ask any questions about it. He says in another place in his testimony he “didn’t have any knowledge of any claim except the mortgage notes.” Being asked if the property had been delivered to his company, and if his company had possession at the time it was seized, Mr. Roberson testified most positively that it had, and that the property was in his company’s possession at the time the seizure was made. He said that Box delivered the property to him about noon at his company’s place of business in Camp-ti and it remained there at that place on the premises until it was seized some two hours later. Mr. Box corroborates Roberson fully on this point. Box also testified positively that he did not inform Mr. Roberson of the existence of any lien or mortgage against the property other than that of the three chattel mortgage notes. He says he did not know that the debt he owed plaintiff in suit for which he was sued constituted a lien upon his property. He knew the chattel mortgage notes did, but thought the debt for the tires and other accessories and labor for which he was sued did not. He gives this as his reason for not telling Mr. Roberson about it when Roberson asked him about liens against the property. Box tells a rather frank story about the transaction, such as to indicate that his aim in selling the property was to enable him to pay all of his creditors on what he felt to be a fair basis as far as he was able. He owed plaintiff in suit the three chattel mortgage notes aggregating $86.25; owed a Mr. MeClain $220 for board and lodging; also owed McClain $40 for paying off one of his chattel mortgage notes for him, also $38 and $40 for casings McClain had bought for him. This made $346 he owed McClain. He says the Campti Motor Company came and got his truck and was holding it for what he was owing the company; and, not being able to pay the company, he went and sold the truck, got part in cash, then returned and paid Campti Motor Company the three mortgage notes and promised to pay the $109.91 account. He thereby secured the return of the truck to him, then carried the truck immediately and delivered it to Mr. Roberson, to whom he had just sold it. This was about the noon hour of that day. The Campti Motor Company did not know at the time that Box had sold the truck. Neither did the Star Gas Company, to whom Box sold the truck, know there was anything against the truck other than the three chattel mortgage notes. Mr. Roberson gave Box enough cash to settle these notes, thinking that was all that was against the truck.

This man McClain at the time owed Star Gas Company $200. He saw an opportunity to “kill two birds with one stone,” and busied himself, naturally, to negotiate the deal. He goes to Roberson and talks the matter over, finding out how much Roberson is»willing to pay for the property; then he goes to Box, who, being willing to accept the price, makes the deal at McClain’s suggestion and solicitation. We do not see where hardly anyone should be blamed in connection with the transaction, unless it is Box. As to him, it appears to have been a matter of expediency: He owed debts he could not pay. By selling the truck and trailer, he could at least pay up in part. Campti Motor Company had taken his truck and trailer away from him, and he felt he had to do something. Whatever favors he might have felt disposed to confer upon McClain in preference to the Campti Motor Company could in no wise affect the Star Gas Company’s title to the property. We think, as did the lower court, that intervener was the bona fide purchaser, in possession, as owner, with the price fully paid, all without notice of the existing lien and privilege herein in question, at the time the seizure took place.

The court rejected intervener’s demand for loss of use of the property, but gave judgment for "attorney's fees in the sum prayed for. It will be noted that the judgment does not specify that this amount awarded for attorney’s fees is for the dissolution of the writ of seizure, nor does the judgment recite in so many words decreeing the writ dissolved. ■ It merely decrees intervener to be owner and as such sent into possession free from any claim of plaintiff in suit. The effect, however, of such a decree would necessarily be the dissolution of the writ.

Learned counsel for Campti Motor Company urges that his client should not have been cast for attorney’s fees. He states his understanding of the jurisprudence of this state to be that attorney’s fees¡ as an element of damages in cases of this character, are limited to the amount of such fees for dissolving the conservatory writ. Our attention is called by counsel to what appears to be the only testimony in the record on the_ subject of attorney’s fees, which consists of the following admission shown at page 49 of the testimony:

“It is admitted by counsel for plaintiff in main suit that $45.00 is a reasonable attorney’s fee for representing intervener or third opponent.”

Counsel then points out that no question of the dissolution of the writ of provisional seizure is mentioned in that admission; that the whole ease was tried together; that no distinction was made between the dissolution of the writ and the question of ownership; and .that, notwithstanding this, the trial judge granted intervener judgement for $45 as attorney’s fees for trying the whole case.

There was no motion to. dissolve the writ by third opponent. But this would have been done, if at all, by W. H. Box, the defendant in plain suit. He alone was in position to take advantage of any defect in the pleadings to be'gin with, or as to the writ or the manner of the seizure. It must be understood that the intervener was a third party to the original suit and was not in position to except to that suit in any manner. His remedy was to proceed as he did, by making affidavit of ownership, or enjoin the sale of his -property, or in some manner take steps to prevent his property from being sold out from under him. In short, the intervener was compelled to come into court to protect his rights. The question is, should he be compelled to appear at his own expense and defend title to his own property which had been seized in connection with a matter that he had had nothing to • do .with and knew nothing about? We do not so understand the law. The very character of the intervention was such as to require trial of the whole case on the merits. Intervener had presented his affidavit of ownership in which was set up substantially his entire case as to the facts upon which he relied for the release of his property. Plaintiff in suit refused to release the property as result of the affidavit, and there was nothing left for intervener to do but to intervene and try out the issues on the merits. It is true, no injunction was prayed for, but, if it had been, that would not have relieved intervener from -having to set up and prove ownership. If anything, it would have increased the amount of expenses incident to the suit.

As to the contention that intervener’s claim for damages was premature, as damages and attorney’s fees should have been claimed in a subsequent independent action, the case of Hodge v. Monroe Mercantile Co., 105 La. 668, 30 So. 142, is authority for a contrary conclusion.

Counsel’s position would be correct if defendant Box had defended the main suit and succeeded in dissolving the seizure and claimed attorney’s fees himself. No such damages could have been awarded him for a dissolution upon the merits. There is a long line of decisions thus applicable to a defendant in the main suit. Lee Lumber Co. v. Hotard, 122 La. 850, 48 So. 286, 129 Am. St. Rep. 368; Albert Hanson Lumber Co. v. Mestayer, 130 La. 688, 58 So. 511.

However, there is a different line of decisions which we think are applicable to and decisive of the point here raised. In White v. Givens, 29 La. Ann. 571, defendant Givens, proceeding under a judgment in his favor against White, had plaintiff’s homestead seized- and was proceeding to have same sold by the sheriff. Plaintiff, the judgment debtor, enjoined the seizure and prayed for attorney’s fees incurred. The case was tried upon the merits, resulting in dissolution of the injunction and awarding attorney’s fees. The Supreme Court, in passing upon the question of damages, said;

“It is proper in estimating the damages occasioned by an unlawful invasion of the rights of a plaintiff to prove the loss, including- expense which he has incurred in preventing further wrong; and the reasonable fees of an attorney may be allowed as well as any other expense occasioned to the plaintiff by the unlawful act of the defendant.”

In Chapuis v. Waterman, 34 La. Ann. 58, defendant, Waterman, proceeding under a judgment in his favor against one A. M. Mir, seized a soda stand and contents which Mir was in charge of and which Waterman believed Mir owned at the time. Mir had been owner, but had sold and transferred by notarial act the property to ' Chapuis, plaintiff, in injunction, only a short time prior to the seizure, for a debt Mir owed Chapuis, his mother-in-law, and the latter had left Mir in charge to operate the establishment for her. Finding Mir had remained in charge, and that no perceptible translation of possession had taken place, and considering the relationship between the parties, Waterman, refusing to accede to Chapuis’ notification to him that she was the owner of the property, continued with the seizure. Whereupon Chapuis filed injunction against the sale and set up ownership. Waterman furnished an indemnity bond and proceeded to litigate the case, which resulted in establishing Chapuis as owner of the property and awarding her damages, including attorney’s fees. The court, in passing upon 'the question of damages in this case, said:

“The fact that the dealings between plaintiff and Mir were such as reasonably to induce the defendant to believe that the property continued to belong to his judgment debtor, cannot exempt him from liability for proper damages, under the circumstances of this case. Had he seized without notice of the sale to plaintiff, he might possibly (though we do not so decide), have been exempt up to the date of such notice. But, having been advised of plaintiff’s title and put on his guard, he acted at his peril when he disregarded it, and must abide the consequences.”

White v. Givens, 29 La. Ann. 571; Dyke v. Walker, 5 La. Ann. 519; Willis v. Scott; 33 La. Ann. 1026; Gilkerson-Sloss Commission v. Yale, 47 La. Ann. 691, 17 So. 244; Ludeling v. Garrett, 50 La. Ann. 118, 23 So. 94.

In Soniat v. Whitmer, 141 La. 244, 74 So. 916, 919, the court uses the following language on this question:

“It is clear that where one has abused legal process and causes the property of a third person to be seized for the debts of another, and the third person is compelled to go into court to maintain his title to the property seized and to have the illegal process set aside, a tort or quasi offense has been committed by the seizing creditor against the third person, for which he is responsible in damages, including attorney’s fees.”

In the above-cited ease it was urged that ■ such a case is not one for the allowance of attorney’s fees, in view of- the fact that, if error there was in the seizure of the property, it was an error of counsel, and an honest error induced by the judgment of the court. The court replied by saying:

“Honest or not, the error made it necessary for Soniat to employ counsel for protecting his property from a seizure under a judgment to which he was a total stranger, and the burden of this expense must fall either upon Whitmer and Lamar, who by their fault caused it, or upon Soniat who is entirely blameless in the matter. We think it should fall upon Whitmer and Lamar.”

Upon application for a rehearing in the above case, the court discussed at length the question of damages allowable for dissolution of conservatory writs wherein it is made clear that in cases where the property of a third person has been seized for the debt of another, and the owner of the property has been compelled to go into court to maintain his possession and ownership and to have the illegal process set aside, he should be allowed reasonable attorney’s fees, as damages.

In the present case, the Star Gas Company, Inc., intervener, was a third person. Its property was provisionally seized by the Campti Motor Company, ‘Inc., in a suit filed by it against W. H. Box. Intervener executed affidavit of ownership, presented same to plaintiff, and demanded release of the property, which was refused. Intervener was thus compelled tq go into court to prove title and recover possession. It was necessary to employ counsel in doing so. Intervener was in possession at time seizure was made. This fact should in itself have put plaintiff on notice qr should have suggested the probability that intervener had purchased the property, since usually the only formality in the sale of personal property is simple delivery. Besides, plaintiff alleged in its petition it feared defendant would dispose of the property, and for that reason asked that it be taken into the custody of the court. Counsel contends that plaintiff was in perfect good faith in believing defendant had not parted with title. It seems; however, under the Soniat and other cases therein cited, the question of good faith and element of probable cause, etc., will not, excuse plaintiff in suit, Campti Motor Company, Inc., from liability, especially under the circumstances, as it acted at its own peril in refusing to release the seizure when confronted with the affidavit of ownership.

Learned counsel presents and urges the rather unique point that, since the sale and seizure both took place on the same day, with only a few hours intervening between the sale and the seizure, the law does not take into consideration parts or fractions of a day; and, hence the sale for that reason should not be considered as of any effect as against plaintiff’s lien and privilege. Counsel cites in support of this point Territory v. Thierry, 1 Mart. (O. S.) 101; Tufts Vi Carradine, 3 La. Ann. 430; Jackson Brewing Co. v. Wagner, 117 La. 875, 42 So. 356.

We find no reference made in the 1 Mart. (O. S.) case to the point in question The 3 La. Ann. case involved the question as to which seizure, among several seizures under attachments on the same day, had priority. The court states in this opinion, Tufts et al. v. Carradine et ’ al., 3 La. Ann. 430, that:

“The general rule that, the law admits of no fractions of a day, is subject to numerous exceptions. There are cases in which the law expressly forbids the different hours of the same day from being recognized as affecting the rights of parties; but the prohibition, must be confined to the cases enumerated.”

Under article 723 of the Code of Practice it is specially provided that, where several successive seizures are made of the same property, the creditors making them are entitled to a preference over other ordinary creditors, according to the order of their seizure. Article 724 of the Code expressly provides to the contrary with reference tq attachments and sequestrations. In all of these provisions of the Code, however, they are dealing with two or more seizures or attachments or sequestrations of a kind. It is not therein sought to provide or stipulate as to who shall have preference in the case of a sale and a provisional seizure of the same property on the same day. In the absence of a law which specially provided to the contrary, the sale or seizure first made during the day would of course prevail. Counsel has pointed out no such statute, and we have been unable to find any.

We think the judgment of the lower court correct, and it is therefore affirmed.


text:
    No. 3471
    Second Circuit (Second Division)
    CARROLL v. POWELL
    (July 16, 1931. Opinion and Decree.)
    William C. Boone and Atkins & Meadors, of Homer, attorneys for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellee.
   STEPHENS, J.

The plaintiff sued for and obtained a judgment against the defendant for the sum of $202.06. He caused the issuance qf a writ of fieri facias and then filed a supplemental petition in which he alleged the issuance of said writ; and that he had reason to believe that the defendant had money in his own name or in the name of his wife, Mrs. Maggie Powell, on deposit in the Planters’ Bank in the town of Haynesville, Louisiana; and that if said money was deposited in the name of Mrs. Maggie Powell it was, in truth and in fact, the property of the defendant, and should be subjected to the payment of his judgment.

He prayed that the said bank be cited as garnishee and ordered to answer, under oath, the interrogatories propounded to it accompanying the petition.

The garnisheee answered that it had on deposit to the credit of Mrs. Maggie Powell the sum of $432.86; and that it was without knowledge or information sufficient to form a belief as to whether or not the defendant Daniel L. Powell, owned or claimed to own any part of the said amount.

The defendant and his wife, Mrs. Maggie Powell, filed a joint exception of no cause or right of action to the supplemental petition, which reads as follows:

“Now comes Daniel L. Powell and Mrs. Maggie Powell, herein and with respect shows the Court that the supplemental petition discloses no cause or right of action. That by garnishment the plaintiff cannot question the title of your appearer, Mrs. Maggie Powell to the deposit.
“Wherefore, they pray that the motion be sustained and the suit dismissed and for costs.”

The exceptions of no cause or right of action were tried ■ and sustained by the court, and judgment rendered dismissing the garnishment proceeding. The plaintiff appeals.

A garnishment proceeding founded on a writ of fieri facias, in its inception, is not a suit, in the legal significance of that word, against anyone, but is merely an attempted seizure. The seizure does not arise to the'' dignity of a suit until the garnishee has answered, and the answer has been traversed by the plaintiff or judgment creditor. When the seizure has thus assumed the dignity of a suit, an exception of no cause of action • will lie at the instance of the garnishee, which will present the question as to whether the plaintiff has alleged in his traverse of the garnishee’s answer facts which would constitute a cause of action in behalf of the defendant or judgment debtor against the garnishee. The plaintiff in garnishment is merely attempting to exercise the right of the defendant or judgment. debtor against the garnishee. Delacroix v. Hart, 24 La. Ann. 141; Marcuse v. Upton et al., 9 La. App. 28, 118 So. 790; National Park Bank v. Concordia Land & Timber Co. (Concordia Land & Timber Co. v. Black River Lumber Co.), 159 La. 86, 105 So. 234.

The judgment debtor at no stage of the proceeding is a defendant in such garnishment proceeding, nor is he cited as such. Therefore, an anomalous situation is presented if the judgment debtor be permitted to successfully oppose an exception of no cause of action to a suit in which it is not intended • to state a cause of action against him, but to state a cause of action in his favor against the garnishee.

In the case before us the garnishee’s answer was not traversed by plaintiff, so the exceptions were filed before the seizure had reached the stage where it might be designated as an action. Clearly the exception of no cause of action of the defendant judgment debtor should have been overruled, and if the reasons assigned be sound for that purpose, they apply with greater force to a like disposition of the exception of the wife of the defendant, Mrs. Maggie Powell. The latter was not a party to the original action, nor is it even intimated in the supplemental petition that the garnishment is directed against her. She was a third person with reference to the controversy. It is true, however, that an attempt was made to seize a deposit in her name in the garnishee bank.

The remedy of third persons whose property has been subjected to unlawful seizure is clear and well defined, and does not include the method here attempted.

It is conceivable that the bank may haye successfully excepted, under the circumstances existing, to the right of the plaintiff to force it to disclose any information with reference to an account not in the name of the judgment debtor.

We are of the opinion that the district judge erred in dismissing the garnishment proceedings. The exceptions should have been overruled as inappropriate and inapplicable to the legal situation existing.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the plaintiff overruling the exceptions of no cause or right of action, and that the case be remanded for further proceeding according to law.


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    No. 4034
    Second Circuit
    MOREHOUSE LUMBER & BUILDING MATERIAL CO., INC., v. JACOB & WALKER (C. N. STOREY and BASTROP REALTY CO., Garnishees)
    (July 14, 1931. Opinion and Decree.)
    Madison & Madison, of Bastrop, attorneys for plaintiff, appellant.
    Frank M. Hawthorne and W. Dan Files, of Bastrop, attorneys for defendants, appellees.
   ON MOTION TO DISMISS

DREW, J.

The judgment in this case was signed- in the lower court on March 22, 1930; orders, of appeal were granted oh the same day, made returnable April 26, 1930, and fixing the bonds therefor. Appellant filed bonds, both devolutive and suspensive, in the proper amounts, with the clerk of the district court on April 1, 1930. The filing fee of ?5, covering the cost of appeal required to be deposited with the clerk ofo the Court of Appeal or district court clerk, was actually forwarded by the district court clerk to the clerk of the Court of Appeal and by him received and deposited before the expiration of the return day, as is shown by the canceled check and letters from the clerk of the Court of Appeal, which are in the record, as well' as by a certificate by the clerk of court of Morehouse parish, which reads as follows:

“Morehouse Lumber & Building Matei'ial Co., Inc., vs. Jacob & Walker, W. Z. Jacob & J. O. Walker; C. N. Storey & Bastrop Realty Company, Garnishee.
“State of Louisiana, Parish of Morehouse . Fourth District Court.
'This is to certify that this case was tried in this Court, judgment rendered, and orders of appeal granted to Hon. Court of Appeal, Second Circuit, and made returnable on ■'or before May I5th, 1930. The necessary bonds were duly executed before the time limit expired, and on April 26, 1930, I mailed my check for filing fee, which check was endorsed and deposited by the Clerk of the Court of Appeal, and at the same time enclosed an affidavit for an extension of time, as the note of evideuce at that time could not be found.
“The delay in sending the record up was occasioned solely by the fact that the note of evidence was misplaced, and in no -;ase by any act on the part of attorneys for the plaintiffs.
“Given under my hand and seal of office at Bastrop, Louisiana, this April 9th, 1931.
“J. T. Dalton, Jr., Clerk.”

The clerk of the district court failed to return the record into this court until February 11, 1931, for the reason that the note of evidence had been misplaced. Thé record clearly shows that it was through no fault of appellant. It did all that it was required to do when it filed bond and the $5 deposited for cost was forwarded to and received by the clerk of the Court of Appeal within day fixed. The law is clear that the $5 deposited for cost of appeal may be filed with the clerk of the district court or the clerk of the Court of Appeal. If deposited with the district clerk, it is his duty to forward same to the clerk of the Court of Appeal. Act No. 32 of 1910.

Whether appellant in this case deposited the money with the district clerk or, through some working arrangement between them, the district clerk sent his own money, is immaterial. The fact remains that the necessary deposit required was received by the clerk of the Court of Appeal to cover cost in this particular case before the expiration of the return day.

There is a great difference between the duty of appellant to lodge his transcript in the Court of Appeal and his duty to lodge it in the Supreme Court, and the reasons are obvious. This question was thoroughly discussed by the Supreme Court in the case of Stockbridge v. Martin, 162 La. 602, 110 So. 828,- and likewise discussed by this court in the recent decision of Dupuy et al. v. Phillips et al., 14 La. App. 696, 130 So. 855. It was through no fault of appellant that the transcript was not lodged in this court before the expiration of the return day. It had performed all the duties required in order to perfect its appeal, and the motion to dismiss will have to be overruled.

It is therefore ordered, adjudged, and decreed that the motion to dismiss the appeal herein is overruled.


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    No. 3671
    Second Circuit (Second Division)
    GEORGE T. BISHOP, INC., v. JONES
    (July 16, 1931. Opinion and Decree.)

      Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellant.
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

The plaintiff sold an automobile to the defendant who executed his note in part payment thereof. A short time thereafter the defendant transferred the automobile to one R. B. Leavell, with the agreement with the plaintiff and Leavell that the latter would assume the note. Pursuant to said agreement Leavell indorsed the note under a printed' form on the back of it which bound “each and all of the indorsers herein,” jointly and severally to guarantee the payment, etc.

Some time after the purchase of the automobile from the defendant by Leavell, the holder and pledgee of the note, the Motor Finance Company learned that it had been wrecked in Texas, where Leavell resided. As the note was secured by a chattel mortgage on the automobile, the finance company sent S. Winkler, their representative, to Texas to see Leavell, and incidentally the wrecked car. Negotiations between the two resulted in an acceptance by the finance company of $50 and the automobile in settlement of the note. The evidence of the agreement is in writing and reads as follows:

“This is to certify that I have received $50.00 and one Dodge roadster in settlement of the note of R. B. Leavell, which is held by the Motor Finance Company.
“(Signed) Motor Finance Co.,
“S. Winkler.”

The plaintiff instituted this suit against the defendant to recover $284.30, the balance due on the note.

The defendant answered admitting the execution of the note, but averring that he was released from the obligation by the release of his co-debtor, in solido, Leavell.

Judgment was rendered-in favor of the defendant rejecting the demands of plaintiff, and the plaintiff appeals.

In solido is defined in Black’s Law Dictionary (2d Ed.) page 608, as follows:

“In the civil law, for the whole; as. a whole, an obligation in solido is one where each of the several obligors is liable for the whole; that is, it is joint and several.”

Clearly, therefore, if Leavell expressly agreed by the t«vms of the indorsement to bind himself jointly and severally, he became solidarily liable with the defendant, the maker of the note. That it was the intention of the parties, that Leavell would be liable for the whole of the obligation. as represented by the note must be conceded. He received the® title to the automobile, and assumed the note which evidenced a portion of purchase price. If he .bought the automobile he must have intended to bind himself for the price.

As Leavell and the defendant were bound in solido to pay the note, the release of the one operated as a release of the other. J. I. Case Threshing Machine Co. v. Bridger, 133 La. 754, 63 So. 319; Fridge v. Caruthers, 156 La. 746, 101 So. 128.

However, irrespective of the question of the effect of the release of one co-debtor in solido upon the obligation of the other, the plaintiff is not in a position to recover from the defendant in this case. The written release, signed by the bona fide holder of the note, charged with the duty of its collection, acknowledged its payment. Certainly payment may not be demanded again.

The note was not surrendered to Leavell, but was returned after maturity to plaintiff as unpaid. .

Demand was. made on the defendant for payment, and he promised to pay, but did not. The plaintiff contends that, because of this latter promise to pay, it went to considerable trouble, work, and expense,' and that the defendant is thereby estopped to urge his discharge from the obligation. The evidence shows that at the time the defendant made the promise referred to he had no knowledge of the release of Leavell, or payment of the note. There is no merit in the plea of estoppel.

We are of the opinion that the judgment appealed from is correct, and it is therefore affirmed.


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    No. 3493
    Second Circuit (Second Division)
    THOMAS ET AL. v. SHREVEPORT MUTUAL BENEVOLENT ASSN.
    (July 16, 1931. Opinion and Decree.)

      Lester Wilson, of Shreveport, attorney for plaintiffs, appellees.
    C. B. Prothro, of Shreveport, attorney for defendant, appellant.
   STEPHENS, J.

Plaintiffs bring this suit as the beneficiaries under the terms of a certificate of insurance issued to their mother, by the defendant, Shreveport Mutual Benevolent Association. The defendant answered, and relies primarily for its defense upon the contention that the plaintiffs’ mother, Mary Ann Daniels, fraudulently misrepresented her age as being under the limit as fixed in the articles of co-partnership and the by-laws of the defendant company in her application for the certificate of insurance; the defendant averring that it had no knowledge of t.lxe misstatement of the age of the insured until proof of death was made.

The case was tried and resulted in a judgment in favor of the plaintiffs in the sum of $1,000, which was the face value of the certificate of insurance, and the defendant appeals.

A motion to remand this case was filed by the plaintiffs on the ground that the defendant concern no longer exists, and that its successors have not requested to be made parties to this appeal. The affidavit in support of the motion was made by one of the counsel for plaintiffs, to the best of his knowledge and belief. The defendant has filed an affidavit signed By its president, who states therein that defendant is still in business, and that the belief of counsel is unfounded. The motion to remand is overruled.

The defendant is an unincorporated mutual benefit insurance association operating under articles of partnership on what is known as the assessment plan. Every member of the association, upon proper application duly made, is issued a certificate of insurance for a stated sum, or so much thereof as may be collected from the membership of the society by one assessment, payable at the time of death of the insured, if at that time he or she be in good standing arid shall have paid all assessments levied and due.

Article 5 of the association’s co-partnership agreement reads as follows:

“All persons between the ages of one and sixty years of age shall be eligible to membership, and may become members upon agreeing in writing to abide by all the rules and regulations and accepting all of the stipulations of the act of the board of directors, etc.”

Mary Ann Daniels, the mother of the plaintiffs, applied for membership in the defendant association on December 7, 1923. Her application reads:

“I hereby make application for membership in the Shreveport Mutual Benevolent Association, and agree to abide by all the rules and regulations of the said Association and agree to pay all dues and assessments promptly when notified that same are due.
“My full name is Mary Ann Daniels. Age 59.
“Post office Box or Street No. 685.
“City. Oil City. State. La.
“I name as my beneficiary Children $2,000.
“Whose address is Oil City, La.
“I am now in good health as far as I know and am not over 60 nor under fourteen years of age and am not afflicted with consumption, cancer, Bright’s disease or high blood pressure..
“(Signed) Mary Ann Daniels.”

A certificate of insurance and membership was issued to Mrs. Daniels, the following day, December 8, 1923.

On the 6th day of August, 1924, the articles of the co-partnership association were amended at length, and pursuant to such amendment a second certificate of insurance and membership was issued to Mrs. Daniels on October 9, 1924. This latter certificate is the one herein sued on, and was issued upon the original application of the insured of date December 7, 1923, as she was at the time of its issuance a member in good standing, and entitled thereto, irrespective of the question of age and condition of her health.

It was shown on the trial of the case that the insured was born on October 21, 1863; and that therefore on the date of her application for membership and the issuance of the original certificate of insurance she was over sixty years of age. She died October 16, 1926. It was. further shown that the defendant had no knowledge that the insured had incorrectly stated her age in the application until after proof of death..

The defendant contends that the insured willfully misrepresented her age, and that as her age was - a material fact, such misrepresentation voided the contract of insurance.

The record, we think, discloses that the insured did misrepresent her age for ihe purpose of becoming a member of the society and receiving the certificate of insurance; that the defendant would not nave issued this certificate of insurance if it had known at the time the application was presented that the applicant was above the age limit fixed by the articles of co-partnership; and that the defendant had no knowledge of the misstatement of the age of the applicant until after her death.

The jurisprudence by the great weight of authority supports the conclusion of the defendant that if these facts be true the contract of insurance is void.

Under similar conditions and facts it was held in Swett v. Citizens’ Mutual Relief Society, 78 Me. 541, 7 A. 394, 395:

“The age of the applicant was a material fact. If more than 60 he could not become a member. His representations of the fact was a warranty of its truth, and, if not true, the contract was invalid. This rule is so uniformly .held by the courts that no authorities need be cited.”

In the case of Marcoux v. Society, etc., 91 Me. 250, 39 A. 1027, 1029, in which the by-laws of the association established the age limit at fifty years, it was said:

“ * * * That he was therefore 50 years, 9 months, and 17 days old when he joined the Waterville society. The declaration of Michel Marcoux made to the Waterville society, in regard to his age, was a misrepresentation of a material fact; and that such a misrepresentation rendered invalid the contract with the parent society is well settled.”

In the case of DeLoach v. Ozark Mutual Life Association, 148 Ark. 414, 230 S. W. 268, 14 A. L. R. 921, the Supreme Court of Arkansas adopted the rule stated in Joyce on Insurance, as follows:

“Where the hy-laws of a benefit insurance company prohibit receiving a member above a certain age, the _ society is not bound by a certificate issued to one over that age whose application was false as to age, and such misstatement constitutes a defense, whether it be held a representation or a warranty.”

The Illinois Court of Appeal in Dailey v. Grand Lodge, Brotherhood of Railroad Trainmen, 226 Ill. App. 164, held as follows:

“Where the constitution of a life insurance association provides that an applicant for insurance must not be over forty-five years of age on the day of his application, a statement by an applicant who was over that age that he was forty-four years and three months of age was a warranty and renders the certificate null and void.”

The plaintiff refers to Act No. 227 of 1916, as announcing the policy of this state that no statement of the insured shall be used in defense of a claim under the' policy, unless it is contained in a written application attached thereto.

We accept this rule of law as governing contracts of insurance between life insurance corporations and claimants under the terms of policies issued by said corporations; but it has no application whatever to a contract of insurance between a co-partnership and one of its individual members.

We are of the opinion that the trial court was in error in rendering judgment for plaintiffs, o It is therefore ordered, ad-' judged, and decreed that the judgment appealed from be reversed, and that there now be judgment rejecting plaintiffs’/demands.