author: Labauve, J.

text:
    No. 1631.
    The State of Louisiana v. New Orleans, Jackson and Great Northern Railroad Company.
    At all elections for directors of the New Orleans,’ Jackson and Great Northern Railroad Company* the State of Louisiana and the City of New Orleans have che right to one vote for each share .of stock which they or either of them have in said road. ‘ i
    Where the votes of the City of New Orleans and the State of Louisiana have not been counted at an election, held for director* of the New Orleans, Jackson and Great Northern Railroad Company, tne eleotion is null and void. ,
    The State, being a stockholder in the New Orleans. Jackson and Great Northern Railroad Cóaj^ariy.j. has the legal right to question before the courts the legality of any election ‘for dirébtOKsf
    APPEAL from the Sixth District Court of New Orleans, Buplaniiev, Jj»

      B. L. Lynch, Attorney General, and Lacey, 31 tries & 'Bullgh,for plaintiffs and appellants.

      Campbell, Spofford & Campbell md.L. ÁSijnmonds, for defendants and appellees. ’

      Brief by Ijacey, 31-trles & Butler, for plaintiffs.

    * * * Before ceedingto place the Court in possessionof our views upon the real mérjts of this cause, we deem it not amiss to give Your Honors the general outlines of the argument. We contend:
    That the act incorporating the company provides that every subscriber to the shares of the capital-stock shall become a stockholder,! and that at all elections by stockholders, and at all their meetings each share shall be entitled to one vo.e; and that in this statute the State and City are not excepted.
    That the acts granting the aid of the State to the extent of one-fifth .of the capital-stock of the company, and the aid of the City to the extent of two millions of dollars are cumulative statutes, giving to the State and City a right, additional to that accorded by the act of incorporation; in other words, the right to a representation of three in the board of directors, in addition to the privilege of voting upon the strength of their stock. • >
    That under these statutes, the State and City had the right to vote upon the strength of their stock, and the deprivation of this right by. the commissioners ' if election was unlawful.
    And lastb , that the commissioners were not justified, in declaring the minority andidates chosen, on account of the ineligibility of the majority candidates.
    First. The act incorporating the company, approved April 22d, 1853, provides that every subscriber to the capital-stock shall become a stockholder, and that at all elections by stockholders, and at all their meetings, each stockholder shall be entitled to one vote for each and every share held by him; and in this law, the State and City are not excepted, or placed upon a different footing from that of private stockholders. ...
    The act under consideration is universal in its application, extehding to all subscribers to the capital-stock, State, municipal and individual. The law provides that any subscriber, from twenty-five dollars and upwards shall become a stockholder, and thus be entitled to vote. If there be a provision in the charter of the company, which places the State and the City upon a footing different from that of individual stockholders, counsel for relators have not been able to discover it; and we do not hesitate to assert that in and by the act of incorporation, no such distinction exists; and the State and City, as well as individuals, upon subscribing to the capital-stock, became stockholders, and entitled to vote upon the strength of their shares.
    On the 28th day of April, 1853, an act was passed authorizing a,subscription on the part of the Slate, to one-fifth of the capital-stock of all railroad and plankroad companies, and giving the State a right to a permanent representation of three in. the board of directors of such companies. On the 15th of March, 1854, the Legislature authorized the City of New Orleans to subscribe to the stock of the New Orleans, Jackson and Great Northern Railroad Company, in a sum not exceeding two millions of dollars; and gave to the City a like representation with the State, of three.members in the board.
    These statutes, it is contended by respondents’ counsel, destroyed the right to vote, which the State and City would otherwise have possessed under the charter, and restricted the State, and City, notwithstanding their heavy subscriptions, to a fixed representation of three each in the directory.
    This leads us to show:
    Second. That the acts granting the aid of the State, to the extent of one-fifth of the capital-stock, and authorizing a subscription on the part of the City to the extent of two millions of dollars are cumulative statutes, giving to the State and City a right of permanent-representation in addition to the right to vote upon the strength of stock, accorded by the act of incorporation.
    This interpretation is correct, because:
    1. It is equitable.
    Our interpretation not only places the State and City upon equal terms with other stockholders, but on account of the'large subscriptions offered by the State and City, and the very groat pecuniary interests which they have at stake, in the affairs of the company, it gives to them a right in addition to that bestowed upon private stockholders.
    Is it anything more than equitable to say that the State and City, when subscribing, secured the privileges of other subscribers; and that the additional burthen of a heavy subscription, in which the public was interested, carried with it an additional right or privilege?
    . 2. It gives effect to both laws on the same subject-matter. Civil Code, Art. 17.
    . 3. It does not, by implication, destroy a right accorded by the charter to the State and City.
    If the Legislature had intended that the acts, passed on the 28th day of April, 1853, and on the 15th of March, 1854, should not be cumulative in , their nature, but restrictive, confining the rights of the State and City to the fixed representation provided for in these statutes, the legislative will would have been declared in express terms; and in the absence of such terms, we humbly submit unto Your Honors the right to vote upon the strength of stock, should not, be taken from the State and City by implication. It is time enough to attempt to deprive a party of a vested right when there is a clear and positive declaration on the part of the Legislature that such should be the case; and it is not the part of wisdom to reach that end by inference or implication.
    4. This interpretation has been placed upon the law by the Legislature.
    In the year 1859, a report of the joint committee, appointed to investigate the affairs of the railroads in which the State is a stockholder, was made to the Legislature; and in this report, it was held that the State and City did not possess less rights as stockholders than a private citizen; that by the acts of incorporation of the New Orleans, Jackson and Great Northern Railroad Company, they acquired the right to vote upon the strength of their stock; and that this right has nowhere been surrendered. The committee repudiated the idea of the acts of 1853 and 1854* having the effect of destroying the right of the State and City to vote upon the strength of their subscriptions.
    On the 13th of March, 1860, a similar report was made by the joint committee of the Legislature, in which the interpretation we have placed upon the law was fully and explicitly indorsed. And, upon the recommendation of this report, an interpretative statute was passed by the Legislature, authorizing and requiring the Governor of the State of Louisiana and the Mayor of the City of New Orleans, to vote on the stock of the State and City in all elections for directors of the company/ Yide Act 1860, p. 186.
    Counsel for relators do not refer to this statute, for the purpose of proving that a new right was thereby accorded to the State and City, but simply to show the legislative interpretation of pre-existing statutes.
    Again. The Legislature of the State of Mississippi, on the 20th December, 1861, passed an act entitled “an act to amend the charter of the New Orleans, Jackson and Great Northern Railroad Company.” By that statute it was provided, that thereafter at all elections for directors in the New Orleans, Jackson and Great Northern Railroad Company, neither the Governor of the State of Mississippi, nor the Governor of the State of Louisiana, nor the Mayor of the City of New Orleans, should be empowered or authorized to vote on the shares of stock, owned by either of said States or by said City in said company.
    Sec. 3 declares: “That this act shall not go into effect until passed by the State of Louisiana, and accepted by the stockholders in said company, as required by their charter.”
    In 1867, the Legislature of Louisiana passed an act entitled “an act to amend the charter of the New Orleans, Jackson and Great Northern Railroad Company,” by which last-mentioned act, approved March 10, 1868, and which thus became valid, art least as an interpretative law, the Mississippi statute was, in all respects, adopted, ratified .and confirmed.
    With these acts of the Legislatures of Mississippi and Louisiana before us, we will ask Your Honors, what expression of opinion have the Legislatures of those two States, placed upon the laws of Louisiana, granting relief to the New Orleans, Jackson and Great Northern Railroad Company through subscriptions, on the part of the State and City? The answer is obvious. They have not only regarded the State of Louisiana and the City of New Orleans as having the right, under the act of incorporation, to vote upon the strength of their stock; but have declared that this right cannot be taken away until the charter of the company is amended by law, and that amendment accepted by the stockholders according to the provisions of the charter.
    5. Relators’ interpretation has been sustained by the action of the company.
    In 1866, the State and City were permitted to vote without objection, and this acquiescence on the part of the company, shows its interpretation of the law to be in harmony with ours. It is true, that at certain elections the Governor and Mayor did not see proper to exercise their right to vote; and on one or more occasions such right may have been denied by the commissioners or the company. But while, on the one hand this silence and objection, can have no favorable effect in behalf of respondents, the consent of the company to the right of the State and City to vote, has, on the other hand, the decided effect of showing relators’ interpretation of the laws to be correct. The rule, governing the interpretation of contracts, may be well-invoked to determine the meaning of laws.
    Art. 1951, Civil Code: “ When the intent of the parties is doubtful,” (and for the purposes of this argument alone, it is admitted that a doubt haugs around the acts of the Legislature) “ the construction put upon it, by the manner in which it has been executed by both, or by one, with the express or implied assent of the other, furnishes á rule for its interpretation.”
    The interpretation placed upon the acts under consideration by counsel for relators is equitable; it gives effect to both laws on the same subject-matter. It does not by implication destroy a right accorded by the charter to the State and City; it has been sanctioned and approved by the Legislature, and has been sustained by the action of the company.
    On the other hand, respondents’ interpretation is incorrect, because:
    1. It might have the effect of leaving, say 60,000 shares of the capital stock of the company unrepresented.
    Tne State owns 61,000 shares, and we will suppose that she transfers, say • 60,000 to private individuals. She can convey no greater right than she herself possessed; and if she, on account of her fixed representation of three in the directory, has been deprived of the right to vote upon the strength of her stock, the transíerree of the 60,000 shares can have no better right. Hence these 60,000 shares in the hands of third parties) who have no permanent representation like the City and State, would be without representation.
    It may, however, be urged that the transferree would acquire more rights than were possessed by the State, and would be able to vote, although the State could not. Concede this for the sake of argument. What then? There would, in that event, be a dual representation in the board; the State, having subscribed to one-fifth of the capital stock, and still owning, after the transfer, 4,000 shares, would, under such circumstances, be entitled-to her fixed representation of three; and the 60,000 shares of stock, held by private individuals, would be represented by the directors elected by their votes. The double representation is manifest, and if there can be a dual representation in such an event, why can there not be, when the State holds and controls the 64,000 shares?
    , 2. Respondents’ interpretation will have the tendency to prevent many elections from being held.
    At every election, a majority of all the stockholders must be represented; and, consequently, there can be no election, unless nuce than 160,000 votes (the one-half of the whole number of shares) be cast. After deducting from 320,000 the whole number of shares of the capital stock, the 144,000 shares held by the State and City, there are left 176,000 Voting shares. More than 160,000 of this number would have to vote to make up-the number required by the charter for a valid election. It stands to reason, that this large proportion of the voting ockholders canrarely.be had; and thus, under defendant’s interpretation of the rights of the State and City, election aider election would fail, and the old board, even when a pressing necessity for change ’existed, would for years be kept in office.
    3. This interpretation has the effect of giving to Mississippi a decided advantage over Louisiana.
    Mississippi claims the right to vote, and does vote upon the strength of fier stock; and if this privilege be accorded to her and denied to Louisiana, has. not the former State a decided advantage over the latter? Mississippi, with her influence and by her votes, may, at every election, control the directory,.and-by that meaus her interests be promoted at the expense of the interests of Louisiana; a home institution, subjected to the control of non-residents. Is it right to place an interpretation upon the acts under consideration, which will have this inequitable -effect? •
    Third. It is contended, on the part of respondents, that thecommissio.uers were jijs.lfied in declaring the minority candidates chosen, on account of the ineligibility of the majority candidates.
    To sustain the action of the commissioners, in this respect, counsel for respondents contend that relators knew, or by law were presumed to know, tbeiineiigibiiity of- the candidates for whom they voted; and with this knowledge, actual or presumptive, having voted for ineligible candidates, their votes were properly held for naught and respondents legally-declared elected.
    We-reply:
    1. The ineligibility was not in fact known to relators.
    The .testimony of Mayor Heath and Gov. Wells, proves not only their ignorance of such ineligibility, but shows that they would not have voted for the candidates supported by them, had they have known of that ineligibility.
    2. Nor is knowledge of ineligibility by law presumed.
    The English authorities, upon winch adverse counsel so confidently rely, and upon the strength of which judgment was rendered by the ■ lower court advfersely'td relators, do not establish this presumption.

      Grant on Corporations, the latest and principal authority, quoted on page 2L7, says: “This probably is the rule.” This writer does not lay it down as a well settled rule, or even as a rule which has been positively established. He speaks simply of a probability, not of a certainty.. Grant even leaves the question undetermined; and by a note to p. 216, quoting the case of King v. Trevenne, it will be seen that the doctrine of presumption is restricted to very narrow limits. The members of á corporation, according to the opinion delivered in that case, are presumed to know the contents of the constitution and by-laws of the company. With the fundamental law of their organization they must be acquainted, but the contents of their other books, particularly the blotter, journal, ledger or stock-book, they are not presumed to kuow.
    The rule, justifying the presumption contended for, was impliedly deprecated by this Honorable Court, in the case of Slaes v. Gastinel, 18 A. 517. In that case, Gastinel was ineligible because of nonage, and this fact was a matter of public record, in the office of the Recorder of Births and Deaths; yet the Supreme Court did not regard the voters as presumptively aware of the fact of ineligibility, refused to hold for naught the votes for Gastinel, and to regard Staes as having received the majority of the legal votes, and ordered a new election. If the doctrine of presumption was rejected, in the ease of Slaes v. Gastinel, either expressly or by implication, why should it be made to apply in the present case?
    The rule of presumption, which would force the Mayor and Governor to know the contents of the company’s stock-book, is not only unsupported by authority, and clearly antagonistic to the ruling in Staes v. Gastinel, but is wrong upon principle. Why should the State and City be deprived of their rights, and important offices given to minority candidates, upon a presumption that the Governor and Mayor were acquainted with all the books, and the entries in the books of the company ?_ Why should important, real and tangible interests of the State and City be sacrificed to a strained presumption of knowledge?
    But enough of this. • The point at best is technical; and why, upon a mere technicality, should this case be thrown out of court, and the real, true and substantial question, which divides the parties, remain undetermined? Oui bono? Will it not be better to ignore technicalities, to disregard side issues, and at once decide whether or not the State and City, like any other stockholders, are entitled to vote upon the.strength of their stock? A court of justice never errs, when its decisions tend to a speedy determination of difficulties, and prevent the continuance of expensive and fruitless litigation.
   Labauve, J.

In April, 1867, an election was held for directors of said company. The State, owning 64,000 shares of the capital-stock of the company, cast 64,000 votes through the Governor; and the City, owning 80,000 shares, gave 80,000 votes to A. D. Grieff, Robert Watson and sixteen others, the Mayor voting for the City.

The persons voted for by the State and the City, had a majority of votes, but the commissioners of election rejected those votes, and declared the persons voted for by the individual stockholders, and who had a minority of votes, duly elected, and they entered upon the discharge of their duties and elected their president.

The State now prays that a writ of quo warranto may issue, directed to the persons so declared to be duly elected and in office, to-wít: Beaúré-' gard, Blanc, Clark, Eellowes, Gordon, Henderson, Leeds, Ogden, Warren, Swartz, Williamson, Smith, Eorstall, Chalson, Hatch, Carruthers, Brown, Montgomery and Green, requiring them, and each of them, to show by what authority they claim or hold the office of directors of said company, and requiring G. T. Beauregard, above named, to answer by wliat authority he holds the office of president of said company, etc.

, The defendants filed several exceptions, which were overruled by the Court below; but they have called our attention in their brief to one alone. It is, that the State has no right to contest this election, and that the jurisprudence of Louisiana seems to have settled that the persons defeated at the election, must be the contesting parties to the suit. We cannot assent to such a doctrine. These directors are mere agents of the stockholders and of the company, and the State has an undoubted right to see that no one should hold office who is not duly elected. The Court properly overruled the exception.

■The answer on the merits, is, in substance, that the defendants were duly elected by the stockholders, and that the State and the City had no right to vote, and that their votes were'properly disregarded as having produced no legal efiec*; and further, that the persons voted for by them were not stockholders, and could not be elected. Act of 22d April, 1853, p. 109, No. 148, H 5, etc.

The first capital of the company was $3,000,000, which was subsequently increased to $8,000,000, divided into shares of $25 each. The State subscribed for 64,000 shares or $1,600,000. The City of New Orleans for 80,000 shares or $2,000,000.

"By section 5 of said act, it is provided that “ at ail elections by stockholders, and at all their meetings, each share shall be entitled to one voté."”'

It appears, under the law, and in the evidence, and by admissions in counsel’s briefs, that the State and the City, had, and have now, each of them, three directors of their own, respectively appointed by the Governor and City Council. Hence, it is contended by the defendants that they had no right to vote as stockholders at this election, when they are represented in the directory by their own directors. Act of April 28th, 1853, p. 195, No. 231, § 8. Act of 15th March, 1854, p. 72, No. 109, | 7. It is under the first section of this act that the City subscribed to 80,000 shares. >

Now, although the State and the City have the absolute right to appoint each three directors, it must be conceded that they are stockholders, and we 3ee no reason why they should not have the same-privileges and rights as other stockholders have. We cannot make a distinction. The law is clear and free from ambiguity. Ubi lex non dislinguit, nee nos distinguere débemuS. C. C., Art. 13.

We are of opinion that the State and the City had the right to vote, and that the act of the Legislature, approved 15th March, 1860, only provides how the State and City should vote, and it was not necessary that this act should have been accepted by the stockholders; it is not a contract, nor an amendment to the charter of the company. If the State and the City had the right to exercise the franchises and privileges of stockholders in voting, the Legislature could say how, and by whom, their votes should be cast.

It is proved and admitted, that the set of directors voted for by the State and the City, had a majority or plurality of votes over the set voted for by the individual stockholders, and whom have been declared and returned as duly elected, on the ground .that those so voted for by the' State and the City were not stockholders.

We are of opinion that the votes of the State and of the City, being legal, defeated the election of the defendants, although they had no' affirmative effect.

It is the majority or plurality of legal votes cast for a party that elect's him, and not the iucompetency of his opponent, who has obtained a greater number of legal votes. Had the majority or plurality of votek been the result of illegal votes, the case would have been very different.'

We conclude that the defendants, not having obtained a majority or’ plurality of votes, were not elected. ' .

It is therefore adjudged and decreed, that the judgment appealed from be reversed, and that the election under which the defendants' hold the office of directors, be annulled and avoided, and that the stockholders proceed to a new election of directors, if one has not yet taken place according to law, and that the defendants pay costs, in solido, iñ both courts. ’


source: Caselaw Access Project

license: Public Domain

text:
    No. 6803.
    George W. Clapp, Master and Owners of Schooner Carrie Sanford, v. J. W. Stanton & Co.
    Proprietors oí steam towboats, plying between the port of New Orleans and the Gulf of Mexico, aro common carriers, and responsible as such.
    A master or owner of a towboat, undertaking to tow any vessel from New Orleans into the Gulf of Mexico is authorized, and required to use every means necessary to tow the vessel safely over the bar, and he is responsible in damages if accident or loss of the vessel occurs through his fault, or by his neglect to procure the necessary force and means to secure the safe towage of tho vesseL,
    APPEAL from the Sixth District Court of New Orleans, Sowell, J. ,

      Race & Foster, for plaintiffs and appellants.

      Bradford <& Finney, for defendants.
   Labauve, J.

The plaintiffs claim of the defendants the sum of $805 55, - for damages alleged to have been sustained by the schooner Carrie Sanford, through the fault and negligence of the defendants, owners of the steam twoboat Anglo Saxon.

The Anglo Saxon left the bar on the 21st December, 1858, with two ships, made fast on each side, and two small vessels astern, the Carrie Sanford and a Spanish bark, the Providencia. The vessels astern were towed by hawsers, fifty or sixty fathoms in length, and made fast in the usual way, by the bits aft on the towboat, the Carrie Sanford on the port side, and the Spanish bark on the starboard side. As the towboat and vessels were coming up, and rounding Poverty Point, the hawser of the Spanish bark parted, and the bark came into collision with schooner Carrie Sanford, inflicting the damages complained of. The hawser, which parted, was a nine-inch hawser belonging to the bark, which was steered by its own men.

Charles Decker, the mate of the Carrie Sanford, testified that it is usual for towboats to take smaller vessels in tow astern. The proper place for. the bark was immediately astern of the ship ahead of her. If she .had been properly steered, there was no difficulty in her keeping her proper place. There would be no danger for vessels in tow astern, if they are properly managed.

Capt. George Heatis testified that he had been connected with towage business since 1829, and that he never knew any person sent from the towboat on board vessels astern to steer them. They are always steered by their own men; that he considered there was no danger for any of the vessels astern when properly steered, and there was no difficulty in Steering them .properly.

The whole testimony goes to show that the Spanish bark was improperly ,steered, and that it was in consequence of this bad management that her hawser parted, and that she came in collision with the Carrie Sanford, and caused the damages complained of. As to the towboat Anglo Saxon, she was properly managed, and the accident happened through the neglect and fault of the man who steered the Spanish bark, and not by an -uncontrolling event, force majeure.

The question now arises: Are the defendants responsible for the neglect and fault of the Spanish bark?

The proprietors of steam towboats, such as ply between New Orleans and the Gulf of Mexico, are common carriers, and responsible as such. Cicero Davis v. Nimrod Howsen et als., 6 Rob. 255. Smith v. Price, 1 La. Rep. 354.

The owners of the towboat Anglo Saxon, being regarded as common carriers, were bound to tow the Carrie Sanford in safety, and the man steering the Spanish bark became their agent for the time being, the said Spanish bark being considered under the control and management of the captain of the said towboat Anglo Saxon.

In the case cited, Smith v. Price, 1 La. 354, this Court, speaking of the eaptdn of a towboat, said:

“By the contract for towing, he is bound to carry vessels safely to their destination, unless prevented by uncontrollable accidents, or such as are not within the control of human foresight or power. If the boat be so much under the influence of the rudder of the ship, it'is the duty ' of the master of the towboat to look to it. His understanding is to tow the vessel in safety, and he has a right to assume all the authority necessary to effect that purpose. The command and care of the vessel towed, should.either be subjected to his command, whilst she is carried by his boat, or her rudder should be placed in the hands of one of his own men. -We consider a vessel thus towed, as property carried for hire, in which her crew should not be viewed as having any lawful agency.”

We are of opinion that the defendants are liable.

We now come to the question of damages:

The bills of expenses for the repairs, amounting to $305 56, have been received in evidence, and are not disputed. The demurrage of the boat during eleven days is not contested, but the estimate put by witnesses, is different. After comparing the testimony, we have come to the conclusion that the fair value is $27 50 per day, making $302 50.

Our learned brother below gave judgment for defendants. We believe he erred.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed. It is further ordered and decreed that the defendants pay, in solido,.to the plaintiffs, the sum of six hundred and eight dollars and five cents, with legal interest from judicial demand, to-wit: the 29th January, 1859, and cost of suit in both courts.

Howell, J,, recused. Rehearing refused.


author: Howell, J.

text:
    No. 1481.
    City of New Orleans Praying for the Opening of Casacalvo and Moreau Streets.
    Where the City of New Orleans petitions for the opening of a street, and experts are appoinbed'to appraise the property taken for that purpose,1 and one of the owners of property takep, expresses his satisfaction with the price fixed by the appraisers of his property, the city is not bound by his approval as to him; she still has the right to show that the appraisement is-too high. The order of Oourb confirming the appraisement is necessary to bind the city. t
    The power of making local assessments for local improvements, is not taxation, within the meaning of the Constitution, and does nob therefore conflict with that provision of the Constitution which requires taxation to be uniform.
    Property lying in the neighborhood of an improvement, whether taken or not, is liable to be assessed for the proportion of benefit derived from such improvement.
    To authorize the assessment of a tax for an improvement, it must be shown that the property assessed is benefited by the improvement.
    APPEAL from, the Fourth District Court of New Orleans, Théard, J.

      H. B. Ogden, City Attorney.

      Buchanan & Gilmore, A. Robert, and J. G. Belavigne, for appellees’.
   Howell, J.

The Oity of New Orleans, having instituted proceedings in the Fourth District Court, in conformity to the Acts of 1882, p. 132, and of 1847, p. 162, and Besolutions of the Common Council, Nos. 144 and 247, new series, for the opening of Moreau, or Charters street, and Casacalvo, or Boyal street, three commissioners of estimate, and assessment were duly appointed, who made two distinct reports; one for each street to be opened, each of which was opposed by the city.and many individuals.

Upon the trial of these oppositions, the Court below rendered the following judgment:

“ It is ordered, adjudged and decreed,

1.That the opposition of the city of New Orleans to the amount of sixty thousand dollars, allowed to the Levee Steam Cotton Press Company, be dismissed, and that said amount be maintained on said tableau:

2.That the tableau be referred back to said commissioners, to be amended so as to allow thirty thousand dollars to Mrs. Lawrence, instead of forty thousand dollars; and that said commissioners be ordered to strike out all the amounts assessed to the neighboring proprietors for the cost of opening said streets:

3.And that the said commissioners be further ordered, before proceeding to the making of their new tableau, to meet at such places, and on such days and hours as they may select, to receive evidence on , the other oppositions herein filed, in order to correct their first appraisement, if they think proper to do so, reserving to all parties the right to urgo their oppositions before this Court, after the filing of the second tableau:

4.And lastly that all costs of these proceedings be charged to the city of New Orleans.”

From this judgment the city alone has appealed, and in answe Lawrence has asked the judgment be amended, by decreeing t abandonment, which she made to the city on the 10th January, her property, described in the report of the commissioners h valid and binding on the city, and -that she is entitled to reco the city the whole value at which her land and improvements were assessed, and on such payment being made, the said land and improvements shall become the property of the city.

The questions before us are:

I. — The allowance of sixty thousand dollars to the Cotton Press Company and the oppositions thereto.

II. — The abandonment of her property by Mrs. Lawrence, and the allowance to her, if the abandonment is not maintained:

III. —The liability of the neighboring proprietors to contribute-.

1. We think the evidence in relation to the allowance of sixty thou-sand dollars to the Cotton Press Company is such as to require a new reference to the commissioners for a more equitable estimate, the one reported being larger than the testimony warrants.

2. Mrs. Lawrence contends that she made an abandonment in due time, under the 5th section of the Act of 1832, that it is binding on the City, which had no right to enquire into or question the estimate made by the commissioners, etc., as stated in her answer.

The report of the comissioners upon the cost of opening Casacalvo or Royal street is hot before us, and the evidence of any advertisement thereof, prior to the alleged abandonment, is not altogether satisfactory. But admitting that all was done in due form, we are not prepared to adopt Mrs. Lawrence’s view of the law.

The 3d section of the Act, in very clear terms, confers the right on any person, whose interest may be affected, to state his objections, in writing, to the reports of estimate and assessment, within a given time, and to continue objecting to the successive reports, until such are made as the Court will accept or confirm, which “ shall be final and conclusive, as well upon the mayor and city council of the said city of New Orleans, as upon all persons and parties interested in the lots, land and premises, mentioned in said report, and upon all other persons whom, soever.”

We think there can be no doubt that the city, as a corporation, is included in the word ‘person,’used aboved and that no part of the report is binding until confirmed by the court. We cannot adopt the opinion that, because one of the owners may be satisfied with the appraisement of his whole property, the city is denied the right to question the estimate, and is bound to take the property, whatever the price or value. This would make the community subject to the unrestrained caprice of these individuals. In our opinion, if there is anything in the 5th section of' the act, which, taken separately, appears to sustain the construction given to it by Mrs. Lawrence, that section should be construed with the other sections of the Act, so as to make all harmonize if possible, and we find no difficulty in harmonizing them.

The whole value, which the owner, by the Act, is at liberty to take and receive, is the value approved and confirmed by the Court. In this instance, the Court did not approve the reported estimate, and ruled correctly in admitting evidence of the value. We are not, however, satisfied that the sum allowed by the judgment is sustained by the evidence. This part of the report also should again be referred to the commissioners.

3. — The liability of the neighboring proprietors for any part of the cost of opening the two in this case, is denied on three grounds:

1. The unconstitutionality of the law on which the claim is based, because of want of uniformity.

This question, we think, is correctly settled in the cases of Yeatman v. Crawdall, 11 A. 220, The Draining Company, 11 A. 370; and Wallace v. Shelton, 14 A. 498, where the principle was announced that the power of making local assessments for local improvements, not being taxation within the meaning of the Constitution, is not inconsistent with the article of said instrument establishing uniformity in taxation. The laws under which these proceedings are, consequently, not unconstitutional.

2. “ The assessment for plus value must be on property adjacent, or fronting on the street to be opened,” and further, the act of 1847, does not apply.

The construction given to the act of 1832, sustains the former ground here taken, but in our opinion the act of 1847, is applicable. It makes property in the neighborhood of the improvement, whether taken or not, liable to be assessed for the proportion of benefit derived from such improvements. ”

3. The assessment is made on property which is not benefited. This is a question to be determined by evidence, and upon which it is not now necessary for us to pass. The standard is, that the property must be benefited, in order to be made to contribute, and in the making and confirming of the new reports, an opportunity will be afforded to show what will, and what will not be benefited.

The question in regard to the contract between the city of New Orleans and the City Railroad Company, can properly have no influence upon the rights of the respective parties in this proceeding. That is a matter between the contracting parties only, and the bonus paid by the railroad company for the right of way through one or more streets cannot be considered as a contribution for opening a portion of said streets.

It is therefore ordered that the judgment appealed from be reversed; that the oppositions of the city of New Orleans to the allowances made to the Levee Steam Cotton Press and Mrs. Lawrence be maintained so far as to reject said allowances as excessive; that the case be remanded, with instructions to the District Court to refer the “ Reports of Commissioners for the opening of Casacalvo and Moreau streets, back to said commissioners for the purpose of preparing and presenting amended reports, in accordance the Acts of 1832, p. 132, and of 1847, p. 162, and the views expressed in the foregoing opinion, without prejudice to any of the legal rights of the parties interested.

Costs of appeal to be paid by the appellees, and those of the lower Court to abide the action of said Court.


text:
    No. 1246.
    Thiele & Seiler v. Crutcher & Co., and W. Crutcher.
    An appeal will not lie from a judgment of tlie District Court until it has been signed by the Judge.

      A li. PPEAL from the Third District Court of New Orleans, Féllowes, J.

      Buchanan & Gilmore, for plaintiffs.

      Bradford, Lea tfi Finney, for defendants.
   Labauve, J.

The plaintiffs claim of the defendants the sum of $60,000, the value of 250 bales of cotton that the latter sold to the former, but which they failed to deliver; in a supplemental petition, the demand is made-in the alternative.

Judgment was rendered against the plaintiffs, who appealed.

The record shows that the judgment appealed from was not signed.

It is now the well-settled jurisprudence of this State, that no appeal lies from a judgment before it is signed; in such a case the judgment is inchoate, and the appeal premature. O. P., Arts. 516, 555, 558. IN. S. 89. 7 L. 513. 9 L. 275. 18 L. 30. 4 R. 151. 9 A. 42. 12 A. 756. 19 A. 291.

So long as a judgment is not signed, a motion for a new trial may be made and granted. 5 N. S. 320. 4 R. 152.

Under these authorities, we consider the case is yet pending below, and although no motion has been made to dismiss the appeal, we are of opinion that we have no jurisdiction to revise the judgment, and that we áre bound ex proprio molu, to dismiss the appeal.

It is therefore ordered that the appeal be dismissed, at appellants’ costs.


text:
    No. 1353.
    City of New Orleans, for the use of C. Connell, v. Mrs. Lydia Wire.
    One who has the right to sue in his own name may sue for the use of another.
    A surviving widow, owning one-half of the property of her deceased husband in community, and having a usufructuary right over the other half, under the statute of 1844, is bound personally for the taxes on the property, and she may be sued for the same before any court of competent jurisdiction.
    Where a contractor, in laying the pavement on the banquette in any one of the streets in the city of New Orleans, destroys or takes up the shade trees which have been planted there, he is liable in damages to the owner of the property that owes the taxes for making the pavement. The amount of the damages is a question of evidence.
    APPEAL from the Sixth District Court of New Orleans, Buplanlier, J.

      Buchanan & Gilmore, for plaintiff and appellant.

      M. M. Cohen, for appellee.

      Brief for plaintiff and appellant.

    The plaintiff sues the defendant for one-half of the cost of paving with square blocks, and for new curbstones, relaying banquettes, etc., in front of her property on the west side of Tivoli Circle, between Triton Walk and St. Charles streets, done under a contract with the city of New Orleans, bearing date the 19th of September, 1860.
    As the proof is ample that the work was done according to contract, and that the amount sued for is due to the contractor, there is in reality no defence to the main action.
    It is true the defendant denies that she is the owner of the property, which she says belongs to the succession of her deceased husband. But she admits tliat she is widow in community, and as the husband died after the passage of the act of 1844, which gives the usufruct of the share of the pre-deceased spouse to the survivor during widowhood or life, as the case may be, it follows that she is personally liable as owner and usufructuary for the cost of the work in question.
    By her answer, filed on the 16th December, 1865, page 30, she claims, in reconvention, $300 for the value of six trees, alleged to have been removed by the plaintiff»

      By a supplemental answer, filed on tlie 29th May, 1866, this demand is increased to §600.
    It is from the judgment of the District Court, allowing the defendant this latter claim in reconvention, that the plaintiff appeals.
    These trees were planted by a tenant of the defendant, on the outer edgeof the banquette, (the public thoroughfare) and had to be removed, it being necessary to do so to lay the new curb and gutter and relay the banquette.
    Thomas, a witness for the defendant, gives it as his opinion that the removal of the trees was unnecessary, and “that the work could have been done without touching the roots, except those of one.”
    * * * Now, we say that the defendant cannot recover for these trees. The very aet of planting them on the public highway is an abandonment of the property in them to the public, and in relaying the banquette, under a contract with the city, the plaintiff had the right to remove them, and was obliged to do so to complete his contract.
    The article 500 of the Civil Code seems to us to dispose of the question. See, also, Digest, book 41, title 1, L 7, § 12. Institutes, book 2, title 1, | 30. Moreau and Carleton’s partidas, vol. 1, p. 359, law 43.
    No claim was made by the defendant for the trees after they had been taken up. They were suffered to lie in the street, in front of her property, until they became worthless.
    This Court will readily perceive that it would have been much easier for the plaintiff to have paved around the trees than to have uprooted them. By taking them up, he was obliged to fill the holes with earth, and cover with bricks — an expense which, could he have permitted the trees to stand, might have been avoided.
    This Court, we feel satisfied, cannot sanction the fanciful and exorbitant value given to these tallow trees by the judgment appealed from. We ask that the judgment on the reconventional demand be reversed, and the demand itself be rejected.

      Brief for defendant and appellee.

    For answer to said appeal, Mrs. Wire denies that there is any error in the final judgment rendered in the above entitled cause, on the 19 th, and signed on the 25th ult., in so far as the said judgment allows the defendant the sum of §600 in reconvention.
    Wherefore, appellee prays that said judgment for §600 be affirmed, and appellant be decreed to pay costs.
    Further answering, appellee alleges that there is error to her prejudice in the judgment of said Sixth District Court, in so far as said judgment decrees that plaintiff’s suit be maintained, and decrees that he shall recover any sum of money whatever, or have judgment against her; and for the points in which she thinks she has sustained wrong, she respectfully begs leave to refer the Honorable Court to the record in this case, and to the exceptions and bills of exception and rules taken by her in said case in the court below.
    Wherefore, appellee prays that said judgment, so far as it is in favor of appellant, be set aside and reversed, on the points, bills of exception, exceptions and rules taken in the Sixth District Court by her, and that said judgment, so far as it is in her favor, be confirmed, with costs. And she prays for general relief. (See above answer, filed in the Supreme Court, April 8th, 1867.)
    This brief has already become so long that I must apologize for saying so much, by stating the fact that although the amount involved in this case may appear to be small, yet it is not so to this widow, at her time of life, with her limited resources, and her (I might almost say unlimited) age.
    But, as the best apology I can make for trespassing on that time which Your Honors so diligently dedicate to the public service, I will abridge the remaining portion of my brief.
    First, then, as to my exception that the suit is improperly instituted in the name of the city.

      Ia support of this position, I content myself with submitting to Your Honors the reasons for sustaining the exception given by the Judge below, who cites Succession of D’Aquin, 9 Ann., 400, and Succession of Fletcher, 12 Ann., 498, to which I add U. S. v. Ilelty Smith, 7 Ann,, 185.

    Secondly: On the defendant’s exception to the jurisdiction of the court, I will only say that she is not sued as usufructuary; the petition does not allege that she is enjoying the usufruct; and there is no proof of that fact. Indeed, as it was not alleged, it could not be proved. She is sued for paving done in front of her property. She specially denies that she was owner of the property, and in her ¡Fea furnished the name of all the owners. lYe do not deny the obligations of an usufructuary, wlieu sued as such. But, because an act of tire Legislature gave her the right of usufruct, plaintiff presumes she availed herself of that act, and presumes that she is, indeed, the usufructuary. And this presumption is made to stand in lieu of proof, not only that she is usufructuary, but also owner. Now, we did not come to trial prepared with proof whether she was or not usnfructuary, for no such issue was raised by the pleadings, and she cannot be condemned as usufructuary, on an allegation that she is owner. To say that the usufructuary is owner is a confusion of ideas and an abuse of terms.
    If the foregoing be correct, our other position must follow, viz: that the Second District Court has exclusive jurisdiction m all demands for money against successions. And as plaintiff’s claim is not alleged against the usufructuary, hut against the owner of the property, and the property belongs to the succession, the Sixth District Court has no jurisdiction.
    The authorities on this point are too numerous, and too familiar to this court, to justify me in citing them.
    Thirdly: On defendant’s claim in reconvention.
    Defendant proved on the trial, as this record shows, that prior to the ■8th of May, 1860, (from which date she claims legal interest on $600,) plaintiff illegally removed from said property six trees, worth $100 each, without notice to her; that said trees did not require to be taken up; that he was requested to leave them, but unlawfully refused so to do; that some of said trees were planted in front of his house, and that the other trees were never replaced on said property on Tivoli Circle, and never returned to defendant.
    On the trial, plaintiff contended that defendant could not recover for these trees, because the city had a right to remove them.
    But, if the city had such right, the city never exercised it, nor authorized any one else to exercise it.
    And, there is just here one proof of the impropriety of the suit being ■instituted in the name of the city.
    By this illegal mode of bringing his action, plaintiff seeks to confound all just distinctions, and to blend himself with the city, and with her rights.
    If it be true that the owner of the soil has a right to keep or demolish constructions made by a third person, and if he keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value, and of the price of workmanship.
    Still, as Connell was not the owner of the soil, he had no such rights. Least of all had he the right to appropriate the widow’s trees to his own use, and the adornment of his own private residence.
    In conclusion, I solicit leave to repeat the prayer of my answer to the appeal, pages 12 and 13 of this brief, and to refer Your Honors to the case of De La Croix v. Villere, 11 Ann., 39, in which the Court says:
    “ The injury to real estate is a very different thing from, that apprehended in the cases cited. It is often the case that a present estimate in money, by witnesses, of the damage done by cutting down trees belonging to another, would furnish no adequate compensation to the proprietor.” Ibid, page 40.

      And again: “It may be tliat the tree threatened to be cut, is one which he values as an ornament to his dwelling, or one which, in his eyes, is sacred by its associations. There are some things which bonds will not cover, and which cannot be estimated in dollars and cents, and if our laws cannot fully protect the proprietor, in cases like these, it but poorly earns the encomiums which are bestowed upon it. But we have no doubt that it does furnish that protection,” etc. Ibid, p. 41.
   Labauve, J.

The petition of the City of New Orleans, for the use and benefit of Christy Connell, declares that Mrs. Widow Lydia Wire is indebted to petitioner in the sum of $919 78, for one-half of the square blockpaving of the street in front of her property, on the west side of Tivoli Circle, between Triton Walk and St. Charles street, and for new curb-stones, bricking relaid, etc., as per bill, duly certified by the city surveyor.

The defendant excelled to the petition, on the .following grounds:

1. That the suit is improperly instituted in the name of the city, for the use of C. Connell.

2. That the said suit is not instituted by the City of New Orleans.

3. That if said suit be instituted by the city, it should be done by the City Attorney.

4. That C. Connell has no right to institute this suit in the name of the city, because ho thereby gains privileges which the law conferred solely on the City of New Orleans.

This exception was overruled.

'In the contract between the city and said C. Connell, in relation to said work, we find the following clause:

“ The proportion tobe paid by the city in cash, and the proportion to be.paid by the property holders in bills against said property holders, to be made by the city surveyor in conformity with sections 119 and 120 of the new city charter; said bills to be collected by the contractor who shall be subrogated to all the rights of the city to sue and seize the property in case of non-payment of any or all of said bills, and the City o,f New Orleans not to be held liable or responsible for any of said bills, should the same not be paid. ”

Under this stipulation, and the general rule, that one who has the right to sue in his own name, may sue for the use of another. C. Connell is the real plaintiff. We are of opinion that the Court did not err.

The defendant also excepted to the jurisdiction of the Court, upon the following grounds, in substance:

1. Because the defendant is not the owner of the property against which plaintiff’s claim is sought to be enforced; that said property belongs to the succession of David Gould Wire, deceased, her husband, who left several children as his heirs, and this defendant, widow in community; that said succession was opened in the Second District Court in the year 1846, and is now in course of administration and unsettled.

2. Because this Court (District Court) has no jurisdiction in such cases.

3. Because the Second District Court has exclusive jurisdiction in all demands for money against successions.

This exception was properly overruled by the Court.

This is not a claim against the succession; it is a debt of the defendant, who shows that she owns one-half of the property, and that she is usufructuary of the other half under the act of 1844, and is therefore bound for the tax. C. C., Art. 572.

The answer pleads the general issue, and in reconvention the defendant avers that plaintiff is indebted to her in the sum of three hundred dollars, for this; That prior to the 8th of May, 1800, he illegally removed from said property six trees, worth fifty dollars each; that said trees did not require to be taken up; that three of said trees were planted in front of her house, and the other three were never replaced on said property on Tivoli Circle, or returned to defendant. By a supplemental answer, defendant alleges the said six trees to be worth §100 each. She prays accordingly.

The court below gave judgment in favor of plaintiff for the amount of his demand, and also in favor of the defendant, for her reconventional áemand in full, six hundred dollars.

The plaintiff appealed.

We are satisfied that plaintiff made out his case, and that the judgment of the Court in his favor is correct.

The difficulty is in regard to the reconventional demand, for the value of the six trees.

From the'evidence, we are satisfied that the removal of the trees was unnecessary, and their value is the only question.

These trees were on the edge of the banquette, and were taken up by the plaintiff; they had been planted there 4, 5 or 6 years before the paving was done, and were about 7 years old.

One witness, Pagaud, says: “He has such trees planted around his lots, and would not take §200 apiece to have them cut down; that it would take 7 years to replace them. This witness supposes that the trees Cost 2, 3, 4 or §5 apiece.”

Another witness says: “Last year at this time, I bought 97 young tallow tree? which were 5 to 7 feet high, and paid §1 25 apiece; and this year, about 10 days ago, I bought 11, about ten feet high, at §2 50,”

On cross-examination by defendant, he says: “ Trees which had been planted 7 years gave shade, and were an ornament to a property; are worth more than the trees I bought. Such trees are matter of taste, fancy, affection. Some people don’t like such trees at all; some people like a tree they plant better than those planted by another.”

Filié testified that this banquette is 12 feet. “Trees are placed on banquettes of such width, but there is no ordinance permitting trees to be planted.”

‘Another witness, Colman, testified: “That he had tallow trees, and would not have them cut down for one hundred dollars apiece; he does not .pretend to say that they were worth that; he does not know the market value; his trees, he supposed, cost him §2 apiece.”

A witness, who was foreman of C. Connell, says: “That the trees were removed because they were in the way in setting the curb, which could not be set according to the lines given by the surveyor without removing those trees.”

Thomas testified “ that the trees, when taken up, were in a sound condition, and did not require to be taken up. That he was present when the trees were taken out, and he remonstrated with the man for taking them out. The work could have been done without destroying them, and without touching the roots, except one.”

It seems that the court below relied on the testimony of Pilié, the surveyor, and of Thomas, about the necessity of taking the trees out, and disregarded the evidence of the foreman of Connell.

But from the evidence, there was no malice on the part of C. Connell, and it is not a case where vindictive or exemplary damages should be allowed. Yet, we think that, under Art. 1928 of the Civil Code, a fair allowance should be granted the defendant for the loss of convenience and gratification, caused by the trees to the defendant. We are of opinion that one hundred and twenty dollars would be a full indemnification.

It is therefore ordered and decreed that the judgment appealed from, be so amended as to allow the defendant, on her reconventional demand, the sum of one hundred and twenty dollars instead of six hundred, and that, as amended, the said judgment be affirmed, the said defendant and appellee to pay costs of appeal.


author: Tauaeebeo, J.

text:
    No. 1096.
    William Golding v. Jean Petit.
    Where two parties make a contract whereby one binds himself to do a particular thing, he must show a compliance on his part accoidmgto the terms of the contract before he can compel a compliance with the terms of the contract by the other party, or recover the damages he has sustained by the iailure on the part of the other party to comply.
    Where the record does not ooncain all the facts necessary to enable the appellate court to determino the litigation, the oase will be remanded.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Garlelon Hunt, for plaintiff and appellee.

      W. G. Iiudd, for defendant.
   Tauaeebeo, J.

The plaintiff sues for $4,200 and interest, which he avers arises from the violation by the defendant, of a certain contract which they entered into on the 26th of January, 1866. By this contract the plaintiff, who is an engine-maker and machinist, obligated himself to furnish an engine, repair two boilers belonging to defendant, and erect certain machinery to be used in a steam sawmill on the property of the defendant, at the head of the Bay of St. Louis, for the sum of $4,200. The entire work was to be completed in six weeks from the time the contract was entered into. By an additional clause endorsed upon a duplicate of the contract, the defendant agreed to pay the plaintiff $2,100 within six weeks as an instalment or partial payment under the contract. The plaintiff avers that he conveyed to the Old Basin, to be transported to its place of destination, a certain portion of the machinery which he had contracted to furnish in furtherance of his part of the contract, and demanded payment of the first instalment of the money to be paid him, and also required plaintiff to furnish the transportation required by the contract. He alleges that the plaintiff refuses to comply with his part of the contract and attempts altogether to repudiate it.

The defendant admits having entered into the contract, but specially avers that plaintiff did not perform and complete his work according to their agreement, that a portion of the work done by plaintiff is defective, and not finished in a workmanlike manner, and specifies particularly the chimney and steam-drum as not made in accordance with the contract, and points out the defects in the drum, which he avers renders it valuelef s for the purpose it was intended to subserve. He avers that the original contract was annulled and rescinded by a subsequent contract by which be agreed to pay the plaintiff for the work done, and repairs made on the machinery, which at that moment was in defendant’s possession by delivery from plaintiff, and that lie has ever been ready under this last named contract, to pay a just remuneration for such work and repairs, except for the drum and the chimney, which he avers are useless. He prays judgment in his favor, and that plaintiff be condemned to pay all costs, etc. The case was tried before a jury, which rendered a verdict in favor of the plaintiff for the whole amount claimed. After an ineffectual effort to obtain a new trial the defendant appealed.

, It is proper in the outset to remark that we find no evidence in the record, showing that the original contract was annulled by the substitution of the one alleged by the defendant in his answer. We find in a letter written to defendant by plaintiff’s attorney, allusion made to what was probably a proposition by the defendant to pay for the work and repairs done, and annul the original contract. But the defendant was informed by the attorney that the plaintiff would accept the proposition, provided, the defendant paid §1,156 97, the just value of the work done as per bill rendered. We see nothing showing that this modification of the defendant’s proposition was accepted.

Proceeding then to examine the pleadings and evidence in reference to the original contract, we find that on the 8th of March, the day on which the time expired, within which the plaintiff was bound to complete the work he notified, by an agent, the clerk of the defendant who was absent, that the machinery was ready to be shipped according to agreement. Subsequently he addressed the following letter to the defendant:

“I now make atender to you of the boilers and machinery constructed and repaired by me for you under our contract dated January 26, 1866, and offer to perform my part of that contract entirely. A portion of the machinery is now lying at the Old Basin, in the city of New Orleans, and I hereby offer to deliver and erect it, and also the rest, at such point as you may designate according to our contract, and call on you for the transportation stipulated. Will you receive the work, appoint the place, and furnish transportation, and make the first payment, which is past due. Although this tender has been made, I repeat it to afford you a full opportunity to perform your obligation. “W. Golding.”

New Orleans, March 15, 1866.”

It is shown that this letter soon after its date was delivered to the defendant.

It is clear that the engine, boilors and machinery spoken of by the Various witnesses on the trial of the case, were the same which the plaintiff intended to use in the fulfillment of his part of the contract. But the defendant specially alleges grave objections to several important parts of this machinery; ancl he charges likewise that the work was not performed in the manner required by the contract.

A mass of testimony was taken in regard to the quality of the machinery and its adaptation to the purposes for which it was constructed. The witnesses were generally engineers and machinists. Eight witnesses were examined on the part of the plaintiff. Six of these were engineers, •machinists and smiths in enginery. Of these six, four of them are rather vague and indefinite as to whether the work was done in accordance with the contract or not. Of the other two, one speaks of the engine as being “plain, suitable and good,” and elsewhere in his testimony, as being “powerful, strong and well built;” and that he thought “it would last as long as it might be wanted to be used.” Yet, he said he never saw the drum nor the chimney; two pieces of the work especially the subject of controversy. The remaining witness speaks fully on the subject. He represents the work throughout as complete, well adapted to the use for which it was intended and in every respect fulfilling the contract. We notice, however, that this witness was the foreman of the plaintiff’s establishment, and superintended the work. It is not likely that he was inclined to underrate its quality or the manner of its execution. Eive witnesses testified in behalf of the defendant, all men versed in the subjects about which they testified. They point out defects in the work, specify deficiencies that are important, and they specially indicate the ■want of an important attachment to the engine, technically called the governor, which they think indispensable in the steam machinery of a saw-mill, unless by the employment of a man to stand constantly at-a particular point to perform some function which is superseded by the action of ohe “governor.” One of these witnesses, says that generally engines such as that mentioned in the contract have governors; that he has no recollection of ever having seen a saw-mill engine without one. Another, the keeper of a saw-mill, says he could not use the engine in question in his establishment without this appendage. A third never saw an engine of the kind without; a fourth says an engine of the force and power of that described in the contract would not be complete without the governor. One of. the witnesses said he had looked at the contract casually, and that he did not consider the engine finished according to the contract. The clearness and directness of the testimony of the defendant’s witnesses incline us to think that it preponderates over that of the plaintiff’s witnesses. The testimony- of the latter is either vague and inconciusive, or consisting of broad declarations; that of the former is concise specific and to the point.

It is argued by the plaintiff’s counsel that the contract of the parties does not specify an engine with a governor and that the plaintiff could not be required to furnish one. It it held on the other side that the scope and meaning of the contract naturally embrace everything important and usual in the structure of engines and machinery for the purposes of a saw-mill. That the plaintiff, having engaged to furnish an engine for that purpose, that should be complete, the defendant had the right to require, in order to that completeness the attachment of the important appendage called a governor. This question we are not required incidentally to determine. It is apparent to us from a scrutiny of tffe entire testimony in this case, that the plaintiff has not fulfilled sufficiently liis own obligations under the contract to authorize him to recover from the defendant upon an alleged violation of his part of it.

We see no ground for the rendition of the judgment in the Court below. If the defendant has violated the contract and been put properly in default, he could only be made liable for the damages sustained by the other party in consequence of such violation. C. C. Article 1920.

No damages are proved; yeta judgment is rendered for the whole amount stipulated for the entire work, and the materials to be furnished in its construction. The inexecution of an obligation does not imply the incurring of a debt. The delinquent is responsible in damages for his failure to comply. 1 L. R., p. 97.

We have not before us all the facts necessary for an adjustment of this litigation and consider that justice requires that the case should be remanded. The defendant we think was entitled to a new trial and that it should have been granted.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this case be remanded to the Court of the first instance, for further proceedings according to law. The plaintiff and appellee paying costs of this appeal.


author: Irsi/ey, O'. Labatjve, J.

text:
    No. 1611.
    Britton & Koontz v. Jas. Norment, Recorder, et als.
    An inscription, in the office of fclie Recorder of Mortgages, ceases to be evidence of the mortgage after the lapse of ten years.
    The Recorder of Mortgages is bound to cancel and erase a mortgage, on the application of a creditor or party interested, that has been registered in his office ten years previous to the application. R S., page 81.
    APPEAL from the District Court, Parish of Concordia, Farrar, J.

      Mayo <& Spencer, for plaintiffs.

      H. B. Shaw, for Mrs. Shaw.
   Irsi/ey, O'.

On the 10th May, 1856, a notarial act of mortgage, on a plantation in. the parish of Concordia, from A. T. Welsh to S. B. Newman, to secure the payment of a note for seventeen thousand five hundred dollars, and interest, was recorded in that parish.

This mortgage was not reinscribed, until the Vlih September, 1867. On that day, Mrs. Shaw, who also had a special mortgage on the same plantation, duly registered, but originally inferior in rank to the Newman mortgage, applied to the Recorder of Mortgages of Concordia, to have the Newman mortgage cancelled and erased for want of reinscription.

The plaintiffs in this proceeding, Britton and Koontz, the holders of the Newman note, obtained an injunction to inhibit the cancelling and erasing the mortgage given to secure it.

The injunction was dissolved in the lower court, and the plaintiffs in injunction have appealed.

The grounds urged by them in this court, to sustain their injunction and have it perpetuated,- are:

1. The inscription of mortgages is subject to the same law and maxims, applicable to prescription, and that prescription was suspended during the war.

2. That the recital in Mrs. Shaw’s act of mortgage, of the Newman mortgage, was legal notice to her of the inscription thereof, and was equivalent to a reinscription.

3. That the pact de non, alienando, in the Newman mortgage, precluded the subsequent mortgage creditor, Mrs. Shaw, from setting up prescription against it.

This Court, in Robinson & Cruzat v. Haynes, 19 A., p. 133, held: “ that an inscription ceases to be evidence of the mortgage after the lapse of ten years, and is not subject to the rules of prescription.” Adoctrine we still adhere to.

The plaintiffs cannot, in this case, invoke the maxim lex'neminem . abgil ad impossibilia, as they had ample time and opportunity, within the .ten years after the first inscription, to reinscribe their mortgage. ' ■:

The vitality of the first inscription, after the ten years succeeding.it, was gone, and thence it had no legal effect whatever — even against the contracting parties. C. C. 3333, 6 Rob. 171, 421, 423. 2 A. 110, 111, 768. 4 A. 396. 5 A. 632. And it became the absolute duty of the recorder, upon the application of any creditor, and even of the owner himself, or other party interested, to cancel and erase the plaintiffs’ mortgage, registered in his office ten years previous to the date of the application. R. S., page 81.

The other grounds are not properly raised in this proceeding.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, at the costs of the appellant.

On Rehearing.

Labatjve, J.

In this case a rehearing has been granted, in order to change and modify the decretal part of our former decision, by amending the judgment appealed from.

It is therefore ordered and decreed, that the decree of our former decision be set aside. It is further ordered and decreed, that the following words of the judgment appealed from be stricken out, to-wit:

And that the mortgage from A. T. Welsh to M. E. Shaw, on pages 395 and 396 of Mortgage Record Book H,” in the parish of Ooncordid, be declared to have priority and preference.

It is further adjudged, that the right be reserved to Britton & Koontz, to establish hereafter the validity and relative, rank- of their mortgage. Further ordered, that the judgment appealed from be affirmed, as amended, the appellees to pay costs of appeal.


author: Labatjve, J. Tadiaperro, J.

text:
    No. 1587.
    Joseph Aillot v. L. C. Aubert.
    The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by the lapse of four years to date from his majority, and the tacit mortgage given by law against the property of the tutor, is extinguished by the same length* of time.
    The plea of prescription is special, and will not be supplied or enlarged upon by the Court.
    APPEAL from the District Court, Parish of Lafourche, Gates, J.'

      Clifford Belcher & E. W. Blake, for plaintiff.

      W. Hall, for defendant;
   Labatjve, J.

This suit was filed on the 17th, and served on the. 21st March, 1866, claiming of the défendant the sum of §3,745 30, with interest, upon two notes signed by the defendant; one dated April 3, 18G0, for §174, payable one day after date; the other for §3,571 29, dated March 26th, 1860, payable one year after date.

The petition states that the said notes represent the amount due petitioner, by the late Charles Aubert and the defendant, as his heir, as tutor of said petitioner, but without novation of liis rights or mortgage in favor of petitioner as pupil of said Charles Aubert.

In a supplemental petition, plaintiff alleges that said Charles Aubert was appointed, and qualified as his dative tutor, on the 25th May, 1835, and received as such for petitioner upwards of §10,000, and died without sealing his account of tutorship; that after his death, Lenfroy Barras was appointed administrator of his estate, and made partial payments, but a large balance remained due petitioner; that the defendant accepted the said succession; that petitioner has a legal mortgage upon the immovables of said deceased, Charles Aubert, the deceased tutor, now represented by the defendant, his sole heir; that on the 26th March, 1860, plaintiff and defendant agreed upon the amount coming to petitioner from the said tutorship, which was $3,745 30, for which the said defendant executed the said two notes.

The plaintiff prays for judgment for said sum, w'ith interest and a mortgage.

The defendant, in substance, pleaded a general denial, admitting, however, his signature, and a novation of the original debt. The prescription of four years to the note of §174, and the prescription of ten and twenty years to any mortgage tacit, or otherwise, or the accessory security to the notes sued upon, and claimed in the petition.

In this court the defendant also pleaded “the prescription of four, five ten and twenty years, as a bar to the legal and tacit mortgage, claimed by the plaintiff.

The court below sustained the plea of prescription of ten years, and gave judgment for defendant, and the plaintiff appealed.

The first legal question that is presented for solution, is the prescription of four years to the claim of the tacit mortgage.

The plaintiff alleges that his tutor died without rendering an account of tutorship, and he does not pretend nor show that one has ever been rendered since his death. The. deceased tutor was appointed on the 25th of May, 1835. Admitting that this suit was virtually a demand in rendition of account, the plaintiff, when he brought it, was over thirty years old, and that action was prescribed under Art. 356 of Civil Code, and authorities annotated, reading thus:

“ The action of the minor against his tutor, respecting the acts of the tutorship is prescribed by four years, to begin from his majority.”

Therefore, if there exist no more action by the pupil against his tutor to render an- account, and to compel him to pay whatever he may have received, the debt is extinguished, and the tacit mortgage gone.

We are, therefore,,of opinion that plaintiff has no mortgage, as given by law, upon tutors’ property, as security of their administration. Civil Code, Art. 3282.

The next legal question is, are the notes sued upon prescribed?

It is true, that these notes have for consideration money that was due by the tutor to the plaintiff, and were executed by the sole heir of the deceased tutor; but it was a new contract and a new debtor, and the four years prescription, applying to the action in rendition of account of the tutorship, cannot apply to these notes which might be prescribed by five years, and not by four years. The note of $174 is prescribed on its face by five years, but the defendant has limited and restricted his plea of prescription to four years, and we cannot enlarge his defence, and apply a different and longer prescription. As to the other note of §3,571 29, five years had not elapsed, when the citation and petition were served.

We are, therefore, of opinion that the prescription pleaded do not apply to the notes, and that plaintiff must recover on them.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and avoided.

It is further ordered and decreed that the defendant, L.O. Aubert, pay to the plaintiff, Joseph Aillot, the sum of three thousand seven hundred and forty-five dollars and thirty cents, with eight per cent, interest per annum, on $174 from the 7th April, 1860, and on $3,571 30 from the 29th March, 1861, till paid, and that the defendant and appellee pay costs in both courts.

On Rehearing.

Tadiaperro, J.

A review of this case does not enable us to see grounds for a reversal of the judgment.

It is therefore ordered that the judgment remain undisturbed.


author: Labatjve, J.

text:
    No. 1638.
    Richard Johnson v. John A. Gennisson.—E. M. Ivens, Appellant.
    An appeal taken from a judgment, not signed by the District Judge, will be dismissed 'x proprio motu,

    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      J. Livingston and Field <li Shackelford, for plaintiff and appellee.

      Lacey, Marks & Duller, for defendant and appellant.
   Labatjve, J.

E. M. Ivens is appellant from a judgment, rendered against him as surety on an appeal bond.

The record shows that the judgment appealed from was not signed.

It is now well-settled by our jurisprudence, that no i.ppeal lies from a judgment before it is signed; in such a case the judgment is inchoate, and the appeal premature. O. P., Arts. 546, 555, 558. IN. S., 89. 7 L. 513. 9 L. 275. 18 L. 30. 4 R. 451. 9 A. 42. 12 A. 756. 19 A. 291.

So long as a judgment is not signed, a motion for a new trial may be made and allowed. 5 N. S. 320. 4 R. 152.

Under these authorities, it is considered that the judgment is pending below, and although no motion have been made to dismiss the appeal, we consider that we have no jurisdiction to revise the judgment, and that we are bound ex proprio motu, to dismiss the appeal.

.Appeal dismissed, at appellant’s costs.


text:
    No. 1348.
    J. B. Murison & Co. v. A. J. Butler, et als.
    A security on an appeal bond, when sought to be made liable, cannot go behind the judgment, and set up matter in defence to the original puifc that might have been pleaded or shown on the trial,
    Th e liabilities and obligations of a surety on an appeal bond are fixed by special laws, and arise out of the bond.
    If the judgment debtor be dead, the creditor may proceed against the surety on the appeal bond without previously issuing execution against the judgment debtor or causing any steps to be taken against his estate.
    APPEAL from the Sixth District Court of New Orleans, Jduplantier, J.

      Lacey, Maries & Butler, for plaintiffs and appellees.

      Campbell, Spofford & Campbell, for appellants.
   Howell, J.

The plaintiffs, having obtained a judgment against the defendant, the latter appealed, and M. J. Newman, James Murphy and Mills Judson became his sureties on an appeal bond. Pending the appeal the defendant died, his administrator was made a party to the appeal, and the judgment was affirmed. The plaintiffs issued execution against Butler, which -was returned milla bona, whereupon they took a rule against the sureties to show cause why they should not be condemned in solido to pay the amount of the judgment. An answer to the rule was filed setting up the defence that since signing the bond, the sureties had learned, that this whole demand had grown out of an illicit enterprise, on the part of both the plaintiffs and defendant, to traffic with the people in rebellion against the government, which was not disclosed in the original suit. On motion of plaintiffs’ counsel this answer was stricken out, without prejudice to the right to urge any legal defence, on the ground that the sureties cannot go behind the judgment. To which ruling they reserved their bill. "We think the court did not err.

We can perceive no good reason for making this case an exception to the general rule that sureties cannot go behind t]y> judgment and set up any matter that might have been pleaded or shown in' the original suit.

The authorities and principles of good morals, invoked by the appellants, do not, in our opinion; apply to the liability and obligations of sureties on appeal bonds, which are fixed by special laws. Their obligations arise out of the bond which are that their principal shall prosecute his appeal and satisfy any judgment which may be rendered against him, failing in either of which they are liable in his place. The law does not contemplate that the case shall be tried anew on its merits between the appellees and the sureties on the appeal bond.

The more difficult question is presented by the appellants in their objections, raised for the first time in this court, to the sufficiency of the sheriff’s return on the fieri facias, in not showing that a demand was made on both parties, and in the failure of the plaintiffs to take all necessary steps against the principal on the bond in accordance with the act of 1855, l 5, p. 305, (amended in 1806, p. 42) before proceeding against the sureties. To the latter objection the plaintiffs have made no reply, but their argument and authorities may be applied to both, the substance of which is, that under the practice and jurisprudence of the State, they are not required to do any act in order to secure their immediate recourse against the sureties on the appeal bond, because no execution could legally issue against their debtor’s estate, and hence the steps taken, though not regular, were unnecessary, and they cite the cases of Alley v. Hawthorne, 1 A. 122, and Wells v. Roach, 10 A. 515, to which we may add Trimble v. Brichta, 11 A. 271, as sustaining their position.

In the last case (11 A. 271,) where the facts were very similar to thoso in the case at bar, but no step at all was taken against the principal, the previous cases and the existing laws were reviewed, and the doctrine in Alley v. Hawthorne, in its broadest terms recognized, as that which has been followed since May, 1816, notwithstanding the legislation of 1855, (see Session Acts pp. 365, $ 5, 399, g 6,) to-wit: “ If the creditor cannot take out his execution on the judgment, by reason of a change in the condition of the debtors’ estate, which prevents its being reached by that process, the law requires no act in order to secure his immediate recourse against the surety on the appeal bond:” and the rule therein 'against the surety was maintained although no step whatever was taken against the representation of the debtor’s estate, and the defence was specially set up in the lower court.

The cases of Alley v. Hawthorne, 1 A. 122; Wogan v. Thompson, 10 A. 281; Wells v. Roach, 10 A. 511; and Bourgeat v. Adams, 11 A. 78, were cited by the Court.

Although we may consider the doctrine more broadly stated in most of the above cases, than the facts in each made it necessary for a decision, we are disposed to apply it in this, as it was applied in those, for .the reasons that we find the statement made and repeated, in the printed brief of appellants, that Butler, the principal on the appeal bond, was insolvent, and that the defence was not made in the lower court, where the plaintiff's would have had an opportunity to prove, what is admitted in the brief.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Rehearing refused.


author: HowÉnx,, J.

text:
    No. 2550.
    Heirs of A. Woolfolk v. Emily Woolfolk, Test. Ex. Zenon Labauve, appellant.
    A tacit mortgage in favorof a minor only attaches where the funds or property are receivod in tho capacity of tutor.
    A t *eit mortgage does not exist in favor of the heirs against the property of the executor of the estate
    .A mortgage creditor of the executrix, nob a party to the suit, may appeal from a judgment against the executor recognizing a tacit mortgage in favor of the heirs.
    APPEAL from the District Court, Parish of Iberville, Posey, J.

      Zenon Labauve, for appellant.

      S. Matthews, for appellees.
   HowÉnx,, J.

Zenon Labauve, not a party to the suit below, has taken this appeal as a mortgage creditor of the defendant, in her individual capacity, alleging that he is aggrieved by the judgment herein in favor of the plaintiffs. He assigns for error, apparent on the face of the petition and judgment, that the allegations of the petition do not authorize the judgment decreeing a tacit mortgage against the defendant as their tutrix.

The petition alleges that the plaintiffs are the children and heirs of A. Woolfolk; that the defendant qualified as testamentary executrix of the last will of their father; that she qualified as their natural tutrix before she became executrix; that as executrix she received property and money belonging to the estate amounting to $212,637 94, which was subject to the payment of the debts due by their father at his death, on 10th February, 1847; that after their payment, she was entitled to hold half of the remainder as owner and the other half as usufructuary during her life or widowhood; that she has never rendered any account of her administration of said estate, which is still in her hands; that she has received and disposed of large revenues at her pleasure, and held all the property of said estate, belonging to petitioners as usufructuary, until recently, when her creditors seized and sold her usufructuary rights in particular property; and it prays, that the executrix be ordered to render a true and faithful account of her administration, showing what debts existed and what have been paid; that petitioners be declared the owners of one undivided half of the property; that in default of rendering the account, the executrix be condemned to pay them the one undivided half of the money received by her, belonging to the estate of A. Woolfolk, to-wit: the sum of $43,007 50, and that their legal mortgage be recognized and enforced, dating from the 20th February, 1847, the date of her appointment as their tutrix.

The only question for us to solve is, whether or not the allegations of the petition authorized the recognition of the mortgage in favor of minors.

The suit is against the defendant as executrix for an account of her administration of the estate of the deceased, in order to ascertain the residuum to which the plaintiffs are entitled — to learn what is in her hands as executrix belonging to them — to fix the amount of their interest or their share in the estate, while they admit that she is entitled to hold that share or portion as usufructuary, during her widowhood, and they do not allege that the usufruct has expired.

The effect of granting their demand under their allegations would simply be to close the administration by the executrix, and fix the amount in her hands as usufructuary. It is only where property or funds are received in the capacity of tutor that the mortgage attaches and it is not alleged in this case that the defendant ever received or held anything as tutrix.

In the case of Heirs of Wells v. Heirs of Cuny et als,, 4 L. 489, which was a suit for an account of administration, it was held that the judgment should be confined to the general aocount of the administration of the estate, and judgment given against the executor (who was also tutor) for the balance which might appear due, upon which execution should not issue; and that of the amount so ascertained, the succession would be considered as owner, and the heirs would be entitled to such portions of it as, on a settlement of their particular accounts with the tutor, might appear due. This settlement is necessarily subsequent to the judgment against the party as executor. In this case it is not alleged even that the defendant owes the plaintiffs an account as tutrix, or that she has made any disbursements for them.

In the case of Bry, under-tutor, v. Dowell, executor, 1 R. 113, it was said that the accountability of the defendant to the minor heir, as executor, should be finally determined before he enters upon his administration as tutor, which is to last until the majority of his ward. In the case before us, we are informed that the accountability of the defendant as executrix is not only not determined, but not sought to be determined, until after the majority of the heirs and the‘plaintiffs being majors must recover from the executrix, and not from the tutrix. What might have been the rights of the plaintiffs under different allegations it is unnecessary to surmise.

The prayer for the mortgage, does not supply the defect in the petition, not being analogous to the nature of the action to which the plaintiffs have resorted. O. P. 172, No. 5.

After mature consideration we have come to the conclusion that the judgment granting the mortgage in this case can have no effect against the appellant, who was a judicial and conventional mortgagee of tho defendant prior to these proceedings.

It is therefore ordered that so much of the judgment appealed from as decrees that the plaintiffs herein have and had a legal mortgage on all the immovable property of Mrs. Emily Woolfolk, as security for the payment of the amount of the said judgment, dating from the twentieth day of February, 1817, the date of defendant’s appointment as tutrix, be set aside, annulled and reversed as to the appellant, Zenon Labauve. The appellees to pay costs of appeal.

Mr. Justice Labauve, being the appellant, took no part in this decision.

Rehearing refused.