author: Spencer, J. Monroe, J.

text:
    No. 6820.
    State ex rel. Pierre Lacaze et al. vs. Chas. Cavanac, Administrator of Commerce.
    A mandamus will not issue to compel a public officer to perform a ministerial duty, whon the evidence shows' that the performance of that duty by him is a physical impossibility; or that his ability to carry out tho mandate of the court depends on tho co-operative action of a third person who is not before the court.
    The prayer for a mandamus is too vague which merely asks that an officer shall be compelled to accomplish a certain result. The relator must designate the specific acts which ho demands that the respondent shall do.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      R. King Cutler for plaintiffs and appellants.

      B. F. Jonas, City Attorney, for respondent and appellee.
   The opinion of the court was delivered by

Spencer, J.

The opinion of the judge of the Third District Court in this case so fully states the lawand the facts thereof that we can not do better than to adopt it as our own. We simply add that whilst the legislative act certainly authorizes and directs the defendant to close, or cause to be closed the private markets, it has not provided the means by which he is to do so. There is no authority given him by that act or any other to summons a posse — there is no force put at his disposal to effect the purposes of the act. He is not directed or authorized to bring suits, further than to lay the subject before the grand jury ; and if he were, no provision is made to meet the expenses thereof. He can not be compelled to do so at his personal expense.

We might, perhaps, add that the relators ask that respondent be compelled by mandamus — not to do any specific ad, but to achieve or accomplish a result, without specification of the modus operandi. Mandamus will only issue to compel the performance of purely ministerial duties, into which there enters no element of discretion. The relator should specify the particular act or acts which the officer is required to do — to the end that ho may be punished if he do not do them.

For these reasons and those assigned by the judge a quo, it is ordered and decreed that the judgment appealed from be affirmed at the cost of relators.

THE OPINION RENDERED IN THIS CASE BY THE JUDGE OF THE LOWER COURT.

Monroe, J.

This is a proceeding under act No. 31 of 1874, section one of which provides :

“ That it shall (be) and it is hereby made unlawful for any person or persons to open, conduct, carry on, or to continue any private market for the sale of fresh moats, poultry, fresh fish, etc., in the city of -New Orleans within the space of twelve squares of any public market under the jurisdiction and authority of the Administrator of Commerce of the said city of New Orleans.”

Section 2 of said act provides that “ The Administrator of Commerce shall bo and is hereby authorized and directed to close or cause to be closed any private market that may hereafter be established for the sale of meats, poultry, etc., in violation of the provisions of section one of this act.” .

Relators aver that they are butchers, doing business in the various public markets in this city, that their business has been pecuniarily profitable to them, but that a large number of private markets have been established, opened and kept within twelve squares of the respectivo public markets in which relators do business, and that meat, fish, and poultry are sold in said private markets, to the great injury of relators and in violation of the act No. 31, above quoted. That said private markets pay no licenses and work great injury to the city ti’easury and to tax-payers and property holders thereby.

That Chas. Cavanae, Administrator of Commerce, has been requested to close said private markets or to cause them to be closed, but that he refuses to comply with said request, although it is his duty so to do, and that such refusal works irreparable loss and damage to relators for which the ordinary course of legal proceedings affords no remedy.

Relators pray that a writ of mandamus issue, directing said Cavanae, Administrator, to close or cause to be closed forthwith all the private markets within twelve squares of each of the public markets, viz.: the Magazine market, Claiborne market, Tremé and French markets.

The Administrator of Commerce comes into court and for answer says :

That there are a large number of private markets within the location described in relators’ petition, the owners of which have obtained injunctions restraining respondent from interfering with them in their business, which injunctions are still pending.

Respondent further says, that he is and has ever been ready and willing to do all in his power to enforce the provisions of act No. 31, of 1874; that due notice has been given to all persons doing business in violation thereof to close their said business, but that he is without police or other power to enforce said law, which can only be enforced through the Mayor and Council of the city and the Board of Police Commissioners, and that no other means or remedy can be resorted to than those prescribed in said act, and these the relators do not demand in their petition.

Respondent further avers that he is without authority to stand in judgment for the city of New Orleans ; and prays that relators’ application be dismissed.

The allegations of fact contained in the petition of the relators are substantiated by uncontradicted evidence. There is no doubt that there are numerous private markets conducted within twelve squares of the public markets named in the petition, and that said private markets are so conducted in defiance of the law hereinbefore quoted, to the injury of the business conducted by relators in said public markets. It actually appears that the keepers of the private markets have the advantage of being exempt from certain expenses which are imposed upon the butchers in the public markets, for while the latter are required to pay licenses and a honus for their stalls, no such exaction is made of the former, for the reason that it is considered that they can not be licensed or otherwise sanctioned in the pursuit of an unlawful occupation.

It thus appearing that a statute of the State is being violated to the injury of citizens who aro pursuing their avocations in conformity to law, we are next to inquire whether the remedy here sought is the proper one. With the policy of this law the court has nothing to do, the Legislature have soon proper to enact it and their right to do so has not been called in question.

We have seen that the second section of the act in question authorizes and directs the Administrator of Commerce to close or cause to be closed any private market which “ may hereafter bo established,” etc., in violation of the provisions of section one of said act.

The Administrator of Commerce answers, however, that whilst he is perfectly willing to do his duty in the promises, he has no police or other power at his command with which to enforce the closing of the private markets. Respondent further says that due notice has been given to all persons doing business in violation of the act No. 31, referred to, to closo their said business, but that the enforcement of said law must be through the Mayor and Council and the Board of Police Commissioners, and that no other means can be resorted to than those prescribed in said law.

If this be true, it would be idle for this court to issue a mandamus commanding the Administrator oí Commerce to close the markets in question, since the court could have no power to enforce an order commanding a physical impossibility. In High on Extraordinary Legal Remedies,” ¿ 14, we find this subject treated as follows :

“ It is a fundamental principio of the law of mandamus that the writ will never be granted in cases where, if issued, it would prove unavailing and whenever it is apparent to the court that the object sought is-impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court-is invoked, or for other sufficient causes, or that the granting of the writ-must necessarily be fruitless, the court will refuse to interfere. So, if it is apparent that the writ, if granted, can not be enforced by the court, relief will bo withhold, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority can not bo vindicated by the enforcement of process. Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time, and it is therefore a sufficient return to an alternative mandamus that the respondent has no power to do the act required.”

See, also, 9 An. 513.

The act required of the respondent in this ease is, that he shall close-the private markets. He answers that he has no power to do it, and whilst the act No. 31 of 1871 authorizes and directs him to close said markets, an inspection of the act No, 7 of 1870, by which the present system of city government was established, discloses that the organization of the department of commerce is under the conirol of the council, who regulate the number of employees in each department. The power of the Administrator of Commerce to obey the mandate of the court would, therefore, depend upon the means furnished him by the council or the police commissioners, and his failure to obey such mandate for want of the necessary power would leave the court in the position of being unable to enforce its orders.

It is true that the act relied on by the relators makes it the specific duty of the Administrator of Commerce to give information to the grand jury of the parish of Orleans of any party or parties who have violated the provisions of said act, and it is to be remarked that there is no allegation on his part, cither that he has discharged this duty, or that he is without the power to do so. The relators have, however, asked no order upon this subject, otherwise it may be that a more satisfactory response would have been made.

The order which has been asked the court is unable, for the reasons given, to grant. That the evil complained of exists there is no doubt: the law of the State is openly violated to the knowledge of those whose duty it would seem to bo to see to its vindication; the remedy, however, is not to be found in this proceeding.

The rule is therefore dismissed.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 5399.
    Mary Johns vs. Henry J. Brinker.
    The commander of a steamboat has a right to use whatever reasonable and lawful force may be necessary to maintain a proper police of-his vessel, and discipline among his employees.
    Where an employee on board of a steamboat, by her own insolence, insubordination, and threats of personal violence, provokes the captain of the boat into an assault with his hands, resulting in but a trifling injury to her. she will not be entitled to recover in damages.
    Whore the issue involved in the verdict of a jury, and judgment of the lower court, is damages for an alleged assault and battery, this court will not disturb such verdict, and judgment, where they do'not clearly appear to be unjust.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Merrick, Bace & Foster for plaintiff and appellant.

      James D. Coleman and II. E. Upton for defendant.
   The opinion of the court wag'delivered by

Egan, J.

This is an action to recover damages for an alleged malicious, wanton, and inhuman assaulting and beating the plaintiff, and for defaming and slandering her. The particulars of the alleged defamation are, however, not charged, and that branch of the case seems to have been practically abandoned. The argument of counsel, that the introduction in the trial of this cause of evidence of witnesses tending to affect the reputation of the plaintiff can form an element of damage and a basis of recovery in the present case, is wholly untenable. The case must be tried upon the state of facts alleged upon and existing at its inception. As to this we find no evidence in the record to support the charge of defamation. We have, therefore, to deal only with the alleged assault and battery.

The plaintiff was chambermaid upon the steamer Maria Louise, of which the defendant was captain. The occurrence out of which this suit arose took place while the boat was lying at the port of Shreveport, on Red River, in April, 1872, on her return trip from Jefferson, Texas, with a full' list of passengers, among whom were a number of ladies. Just as the passengers were about sitting down to dinner in the cabin, it was reported to the captain that the plaintiff was causing some disturbance, to the annoyance of the lady passengers, growing immediately out of a quarrel between her and the colored nurse of the captain's children, between whom and the plaintiff it appears no good feeling existed. It is also charged by some of the witnesses, and denied by others, that the plaintiff was at the time intoxicated, or at least excited by liquor; we do not, however, consider this fact very material either way, and may disregard it in view of the other facts proved. The captain on receiving this information went back to the laundry, back of the ladies’ cabin, and spoke to the plaintiff, it seems with a view to putting an end to the disturbance and to the-consequent annoyance of the passengers. This he had a perfect right,, and it was his duty to do in policing his own boat. The preponderating evidence of the only witnesses who heard and saw what passed between them at that time seems to have satisfied the jury and the judge below that instead of yielding to the legitimate authority of the commanding officer, to whose orders and direction it was necessary, and she by accepting employment on the boat had consented, to submit herself,, the plaintiff was insolent and insubordinate, and attempted or threatened to strike the captain with a large lump of coal; and that he thereupon either knocked or kicked the coal out of her hands and at the same time slapped her forcibly in the face, causing her nose to bleed and either contusion or fracture of the nasal bone, about which the testimony of two physicians on the record is not accordant, though both agree that there was not even an abrasion of the skin. The plaintiff -then very naturally rushed out of the laundry and along the guards in the direction of the forward cabin or gangway, and the captain as naturally, to avoid disturbing the passengers and creating a commotion, followed her' and forced her back into the laundry, and told her to stay there. Some of the witnesses say he struck her with his fist on the back of the head while on the guards, and others say he did not; at all events it does not appear from the testimony of her own witnesses that any injury resulted from the blows, if given. They could certainly not have been delivered with' much force, or under the circumstances she would have been knocked down, and Dr. Kennedy, whom she consulted immediately on her return to New Orleans, says he neither heard of nor saw any other evidence of injury except to the nose. The plaintiff was then paid off and discharged, and left the boat the same day ; and after remaining three or four days in Shreveport returned to New Orleans by way of Monroe and Vicksburg, accompanied by a lawyer, who it would appear had fired her with the ambition and belief that she could, under the then existing circumstances and state of public opinion in the country, real- , ize a fortune in the way of damages out of the defendant. Acting under such advice she first had the defendant arrested and carried before a U. S. Commissioner at Shreveport, and afterward at New Orleans, and also ' attempted to have him indicted by the grand jury in the U. S. District Court for La. but without success. She also instituted this suit to recover ten thousand dollars damages for her wrongs and injuries, and two hundred and thirty dollars and 50-100 for her traveling expenses and doctor’s bills.

The traveling expenses were simply a consequence of her discharge from employment, and as we agree with the jury and court below that under the circumstances the defendant had a right to discharge her, this is no element of recovery in the case. The doctor’s bill amounted to ten dollars for a single visit, and the professional services of Dr. Kennedy after her return to New Orleans.

The only other element of damage then is that growing out of the-assault and battery, with the exception of such professional advice and services, if such they were, as were afforded her by the attorney who-accompanied her to New Orleans, and to whose advice it would appear the plaintiff is indebted for this protracted and exaggerated litigation.. Of them she says herself that she could not see or did not think this attorney did her any good; she-could see nothing he did for her, and she therefore discharged him after paying him three hundred and ninety dollars, and employed the counsel who has since conducted this-litigation. There is no evidence in the record to countervail the impressions of the plaintiff herself in regard to the character and value of the-services in question. On the contrary, the record would rather make-the impression that she had been badly advised and encouraged to-embark' in expensive and speculative litigation to no profit. The-amounts paid her present attorneys for the prosecution of this suit are-no t recoverable in it even if so large a claim were established by other-testimony than that of the plaintiff alone, as it is not. There is no evidence of malice or of wantonness in the defendant in the assault and battery complained of. The plaintiff herself swears that she and the defendant had never previously had the slightest disagreement, and had gotten along well. It is, however, proved to our satisfaction, as it seems-to have been to that of the court and jury a qua, that the plaintiff had not properly performed the duties of chambermaid according to the rules of the boat and the orders of the captain, in violation of which and to the annoyance of lady passengers, who complained of it, she had, instead of attending to the berths and rooms in the ladies’ cabin herself, frequently made a cabin-boy do so, and had sent the captain an insolent message in regard to it. At the time of the immediate difficulty, as before remarked, she appears to" have been not only insolent and insubordinate to the commanding officer of the boat, whose orders it was her duty to obey, but to have attempted actual violence toward him. The court and jury below doubtless thought, as we think from the evidence, that she provoked the difficulty with the defendant by her own misconduct and insolent demeanor, without which nothing in the record leads us to believe it would have occurred. Not only does this impression result from the evidence of the immediate facts, but from the well-established character of the defendant as a peaceable and quiet officer and man who never had a difficulty with any one else, and according to the plaintiff’s testimony never prior to that even with her, together with his responsibility and duty as captain to preserve good order and suppress ■disturbances on his boat.

Whether we take the statement of Dr. Moore, who was consulted by plaintiff at Shreveport, immediately after the occurrence, and who testifies to her violent language and demeanor in regard to the defendant at that time, or that of Dr. Kennedy, who only saw her after her return to New Orleans, the injury which she received appears to have been rather the result of accident than design on the part of the defendant, even if it was not the necessary consequence of her own conduct, and to have been by no means sufficient to warrant so extravagant a demand as the present. The evidence of actual damage is inconsiderable, as we have seen. The defendant’s legitimate authority was defied and his passengers annoyed by the plaintiff, and he was greatly provoked and threatened with actual violence by her. While there is evidence of several witnesses to the good conduct of the plaintiff en other occasions, there is none to support her own unaided testimony against the preponderating evidence of the defense that her own conduct, on this particular occasion, was the cause of the difficulty. Suits of this character were of somewhat frequent occurrence about the time this arose. Most of them were no doubt born of the false teachings and bad advice of the hour, and we trust the occasion and the disposition for them on the part of persons of the class of the plaintiff have passed away, and that instead of cultivating an offensive spirit of independence of just control by and insubordination toward those in authority over them, they will learn the necessity and benefits of civility to all and obedience to the authority to which they voluntarily submit themselves, and with which custom and the law from necessity clothe the commanders of ships and steamboats. But while officers like the defendant must necessarily police and control ■their own boats and those employed on board of them to a great extent, we by no means wish to be understood as justifying on their part the use of wanton or unnecessary force, or of violations of the law toward even their subordinates; were such a case before us we should unquestionably visit upon the offender the consequence of his act. There is a mass of evidence in this voluminous record much of which is irrelevant. The case was tried by a jury who heard and saw the witnesses, and under the eye and ear of an upright and intelligent judge. The former found a verdict for the defendant, and the latter refused to set aside that verdict and .award a new trial. The evidence takén together has made no such impression upon us as would warrant or induce us to avoid that verdict and the judgment based upon it in a case so peculiarly within the province of that court and jury. If any other result could follow a new trial it would necessarily entail additional expense to all with little prospect of profit to any party to the litigation. If the defendant was in fault he has, we think, been sufficiently mulcted and learned a sufficient lesson in the progress of the multifarious and expensive litigation which has .followed, and we trust the plaintiff will also be wiser in future than to-embark in such ventures. .

The plaintiff excepted to the’refusal of the judge a quo to receive-the depositions of N. W. Smith and- Peggy Matthews taken under affidavit. We do not think the court erred. The notice was insufficient and the evidence taken ex parte. Were the evidence, however, before us it would not in our opinion affect the conclusions to which we have-arrived, nor do we think it sufficient to have countervailed the effect of the other evidence with the‘jury and court below, or to have been likely to affect the verdict and judgment.

It is therefore ordered, adjudged, and decreed that the verdict and' judgment appealed from be affirmed, with costs of both courts to be paid by the plaintiff.


author: DeBlanc, J. Manning, C. J. Marr, J.

text:
    No. 6692.
    Widow Sarah Gaines vs. Succession of Martinez Del Campo.
    A general plea of “ prescription,” without indicating what specific prescription the-party invokes, and relies on, is too vague for this court to take cognizance of.
    The omission on the part of an employee to present a statement of account to the* employer for services rendered to the employer, will not prevent the former from recovering the value of those sorviees from the employer’s succession.
    APPEAL from the Second District Court, parish of Orleans. Tissots J.

      Sambola & Bucros for plaintiff and appellee.

      Geo. L. Bright for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Mrs. Sarah Gaines claims from the succession of Jose Martinez Del Campo the sum of $5400.

1st. Eor the use and rent of her household furniture, effects useful and ornamental, utensils, bed, beddings, etc., by the deceased and for attending and managing his domestic and household affairs (keeping house for him) from March 1st, 1873, to March 1st, 1876, at $100 per month....................................................... $3,600

2d. To constant services rendered by nursing and taking care of the deceased in his old age and Illness, say twelve months preceding his death, at $5 per day.......'...................... 1,800

Total $5,400-

The defense is:

1st. A general denial.

2d. That the deceased occupied a furnished room in plaintiff’s house, and the plaintiff being unable to maintain herself, he, in kindness paid her rent and maintained her family to an extent largely exceeding the benefits received by him, and were an account now taken, the plaintiff would be largely indebted to him.

3d., Prescription.

Defendant pleads, in general terms, “the exception of prescription”— but, of the many prescriptions known to our laws, which did he intend to invoke? We are not informed, and — in its form — that plea is so vague and so indefinite, that — to sustain the exception — we would have to supply the plea itself, and infer which prescription is relied on. This we can not do.

15 L. 550. 21 A. 396 — 671.

There remains to be determined but a question of facts, and — in this case — it is, by far, the most difficult one. It is in evidence that Del Campo lived like a man of means, but the extent of his means at and before his death is not shown. The inventory of his estate was — for that purpose — introduced in the lower court, but was not copied in the transcript. As however, neither the plaintiff, nor the representative of Del Campo’s succession complains of that omission, they must both consider it as unnecessary to a proper decision of this controversy.

Del Campo lived in a house rented by himself, furnished and1 kept by Mrs. Gaines, who washed and cooked for him. He was an old man, but went regularly to his business from 9 o’clock in the morning until 4 in the afternoon. One of his intimate friends, Justo Garcia, y Leon testified that Mrs. Gaines treated him like a child; she wa§ near him day and night; he could not use his hands; she had to dress him in bed, put on his drawers, socks, pants and shoes, and to render other and fulsome services which — however calculated and interested they may have been— should be rewarded.

It is not improbable that — for that constant care, those indefatigable attentions, Mrs. Gaines expected to be compensated by a gift, a legacy proportionate to her important services and the presumed wealth of Del Campo; but that not unreasonable expectation, and — though not unselfish — her hesitation to present any account to the deceased, did not ■destroy her right to recover a just compensation from his succession.

7 A. 207:

Del Campo never gave a cent to Mrs. Gaines; he would not allow her to take and keep boarders. Of those she had when he came to the house occupied byher,’only one remained; that one paid to her the price •of his board. She told y Leone that the deceased gave her no money: he answered that Martinez was a gentleman, that he would not forget her. She applied to himself, and he, as his friend, left her under the impression that she would be remembered and rewarded. His generous intention or deceitful promise is now in the grave.

Our attention was arrested by defendant’s answer, and — for a moment — we could not refrain from suspecting Mrs. Gaines’ post mortem demand, but the evidence preponderates in favor of the demand, and •does not sustain the allegations of the answer. Eor rent of her furniture, washing, cooking, nursing and services of every description during the space of three years, the judge of the lower court, who heard and— it may be — knew the witnesses, has allowed plaintiff a fraction over two ■dollars and thirty cents a day. It is not too much.

The judgment appealed from is affirmed with costs.

Dissenting Opinion.

Manning, C. J.

The plaintiff has not established her claim to my •satisfaction. She kept, furnished apartments for rent on Royal street when Del Oampo first became her lodger, and he paid $25 per month. That was seven or eight years ago, the plaintiff said, speaking as a witness in 1876. He paid that rent for three months only. Then he rented the house, and plaintiff’s furniture remained in use, other 'lodgers occupying rooms as before. Afterwards he rented a house on Liberty street and on Rampart, Barracks, and Bourbon streets successively, to all of which the plaintiff’s furniture was removed. These rents were $75 at first, later $100 and $125 per month, which Del Oampo paid. He used two rooms or three as stated by the plaintiff. The other rooms were at her disposal. She says her-lodgers were sent away by her because Del Oampo would not permit any of them to stay in the house, but Davis, one of plaintiff’s witnesses, says he rented a room in 'these several houses from plaintiff during the whole time Del Campo was lodging in them, and paid the rent to the plaintiff. It is very clear to my mind that Del Oampo paid the rent of his suite of furnished apartments by giving the money to the landlord instead of the plaintiff, •and thus ensuring that he would not be disturbed by ejection for nonpayment of house rent. The circumstances detailed by plaintiff .as giving rise to his renting the different houses, instead of renting from her a suite of furnished rooms in them, confirm this view. He had not •been renting her rooms three months before she asked him to become ■her security for the house rent. He wisely declined to do that, and Instead rented the house himself. The sum he paid is about what the monthly rent of a suite of rooms would be, furnished as his were according to the witnesses’ description. During the years of highest rent it was more, and his liberality was no doubt occasioned by the plaintiff’s ' care of him and attention to his wants.

The charge for nursing is no better supported. Del Campo went out to his business every day, and his sickness was short.. Garcia y Leon, one of plaintiff’s witnesses, says Del Campo was a pretty hearty old man up to the time he died. I can not approve a charge of $1800 for a year’s nursing of a man who was on the streets every day through the business hours, even if he were over-exacting in his demands of the plaintiff’s time and attention when in doors, and it is not an insignificant circumstance that during Del Campo’s life no demand was made of him by plaintiff, and her services are said to have continued through seven years.

As I think plaintiff has failed to support her claim by satisfactory proof, it is unnecessary to consider whether the plea of prescription would bar it, but I can not understand why that plea should be held to be defective unless the pleader specifies the time or number of years that must have elapsed to sustain the plea. The plaintiff’s counsel did not object to it for vagueness. If a party to a suit wishes to avail himself of a bar afforded by the statute of limitations, it seems to me sufficient for him to plead that the right to recover is thus barred — in our phraseology, that it is prescribed. And whether the particular period of prescription is one or thirty years, the court must know or ascertain from the Code or statutes whether the claim is prescribed by any period, and apply the law accordingly.

I think the case is with the defendant, and that he ought to have judgment.

Concurring Opinion.

Marr, J.

The Code, article 3464 (3427) requires prescription to be pleaded “ expressly and specially.” I think this is but an amplification of the preceding article, which declares that “ courts can not supply the plea of prescription.”

The party who relies on the bar resulting from the lapse of time must set it up, must inform the court and the adverse party by his pleading that he makes that defense. It would be more convenient that the pleader should state what the prescription is which he considers applicable, and on which he relies; but the petition generally discloses the nature and particulars of the demand with sufficient certainty to enable the court and the adverse party to know, at once, to what prescription it is subject. I am not prepared to say that the statement in the answer that the action is prescribed, or the simple exception of prescription, without further specification, would not be sufficient, especially where no objection is made by the adverse party.

The demand for rent and use of the furniture would be subject to the prescription of three years; and that for personal services, to the prescription of one year; so that neither was prescribed when the suit was brought.

Plaintiff certainly rendered such services tu Del Campo as entitled her to a liberal compensation; and although the whole of her furniture was not needed for the rooms and apartments occupied by Del Campo, his use of it was virtually exclusive, because he would not permit her to receive other boarders or lodgers, and she had but one, Davis.

I attach no importance to the fact that plaintiff did not present her account, and have a settlement with Del Campo during his life. The testimony shows that she expected, not without reason, that she would be remembered, and compensated in the testamentary dispositions of Del Campo; and as her expectations were not realized, she is entitled to demand proper compensation.

The amount allowed seems to me large; but it is not up to the estimation of plaintiff and her witnesses, and no contradictory proof was introduced or offered.

I concur in the decree pronounced by Mr. Justice DeBlanc.


text:
    No. 6469.
    Martin Ivens, Jr., vs. E. M. Ivens & Co. C. S. Johnson, Garnishee.
    The validity of a garnishee’s title to property in his possession, of which he claims the ownership, can not be passed on in a rule, taken to traverse the answers of ' the garnishee. Such an issue can only be passed on in a direct suit brought to test the sufficiency of the title.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      W. B. Mills for plaintiff and appellant.

      W. B. Lancaster and H. B. Lazarus for garnishee and appellee.
   The opinion of the court was delivered by

Egan, J.

This is a proceeding in garnishment under fieri facitts. Interrogatories were propounded to the garnishee who directly negatived the possession of any property or effects of the defendant, or any indebtedness to them. In answer to further interrogatories, the garnishee set up title by purchase and ownership of the only property of the character inquired about, and appended to his answers a written conveyance from H. S. Benliam to him of the property the possession and ownership of which he thus claimed. He also excepted to the right of the plaintiff to proceed by garnishment process as attempted, to try the question of title, and asked to be excused from answering further. The court sustained the exception and rendered judgment in favor of the garnishee on a rule taken by the plaintiff to traverse his answers.

From, that judgment the plaintiff has appealed and urges upon us his right to introduce evidence under his traverse to disprove the answers of the garnishee, and to show the title of the property in his possession to be in the defendants and not in the garnishee.

In support of his pretensions, we are referred to the provision of article 262 of the Code of Practice that the garnishee must declare fairly and truly “what property belonging to the defendant he has in his possession by whatever title he may possess the same.” It is manifest that the “title” referred to in this article is the right by which the garnishee holds for or under the defendant as bailee, lessee, or otherwise, and not to title to property the ownership of which is claimed by the garnishee to be in himself. The moment that character of title is interposed as a real, actual title, its validity and sufficiency can only be attacked by a direct action. See 2d R. 99 ; 1st R. 435 ; 17 L. 555 ; 3 A. 651 and 183; 12 A. 814; 19 A. 16 ; 25 A. 365 ; 26 A. 74.

Nothing in the interrogatories or answers or otherwise in the record leads to the suggestion or belief that the matters proposed to be tried on the rule relate to any other property than that the ownership of which is claimed by the garnishee, with color of right, at least as set forth in his answers. We can not in this form of proceeding try the question of the validity or sufficiency of that title or whether all the property claimed by virtue of it is covered by its terms.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed with costs of both courts.


text:
    No. 6752.
    Mrs. J. B. Ducoing, Administratrix, vs. Joseph Billgery.
    When the judgment appealed from only involves a claim for damages o£ lour hundred and fifty dollars, and the possession of property, the value of which possession is neither proved, nor alleged, this court is without jurisdiction.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

    G. Schmidt and J. J. E. Planchard for plaintiff and appellant.

      Longue & Fernandez for defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Egan, J.

The appellee moves to dismiss this appeal upon two grounds. First: Because the amount in dispute is less than five hundred dollars.

Second: Because of the insufficiency in amount of the bond for appeal. It is only necessary to notice the first ground.

This suit is by injunction to restrain the execution of a judgment of a justice of the peace under the landlord and tenants’ act, and for four hundred and fifty dollars damages. The only issues presented are an amount of damages less than five hundred dollars, and the possession of real estate of the value of which possession there is no allegation, or other evidence, in the record. This appeal is from a judgment dissolving the injunction and nonsuiting the plaintiff. Taking the present record as a guide, this court is without jurisdiction.

It is therefore ordered that this appeal be dismissed at the cost of the appellant.


author: DeBlanc, J.

text:
    No. 5392.
    Nicholas Connell vs. Alexander Hill.
    When one party submits a proposal for a contract to another, and the latter’s acceptance of the proposal includes a material modification of the proposal, no contract will result until the modification has been acquiesced in by the party making the proposal.
    When a party who is sued in virtue of a contract made by a municipal corporation, denies, in general terms, that the corporation has complied with the law authorizing it to make such a contract, the burden of proof is on him to show that the law has not been complied with. The presumption is that the corporation has acted legally.
    When the work of constructing sidewalks on one of the streets in the city of New Orleans has been done under a contract made at the discretion of the Common Council, each owner of property fronting on such street can only be held for two thirds of the cost of the sidewalk in front of his property. .
    A PPEAL from the Fourth District Court, parish of Orleans. J. Lynch,

      T. Gilmore & Sons for plaintiff and appellee.

      Ogden & Hill for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 9th of July, 1872, the council of the city of New Orleans passed the resolution which follows: “ The proposal of Nicholas Connell for making brick banquettes, with wooden curbing, on Second street, from Apollo to Claiborne — where not made, at $2.93 per lineal foot complete, and offering security satisfactory to the mayor and administrator of improvements in the sum of $2500, be and the same is hereby accepted — and the mayor directed to enter into contract in behalf of the city, per notarial act.before the city notary for the faithful performance of said contract; provided that, in the notarial act, the contractor shall distinctly disclaim and relinquish any recourse upon the city, in case he shall fail to obtain from the property owners payment for said work.”

In obedience to that resolution, Benjamin F. Flanders appeared before the designated notary, on the 15th of July, 1872, and — in the words of the act attested by said officer, “ granted, bargained, sold and confirmed unto Nicholas Connell, his’heirs and assigns, the contract for the construction of brick sidewalks, with wooden curbs and gutters on both sides of Second street, from Carondelet to Claiborne, wherever the same have not already been made by the property owners, Or in course of construction at the date of this contract.”

That act also provides “that the entire breadth of the sidewalk shall be paved with lake bricks — that, after the pavement is completed, a coat of at least half an inch of sharp sand shall be spread over its surface. That the contractor shall commence the work ten days after the approval of the adjudication by. the city council. That, upon reception and completion of the work, payment shall be made by the property owners upon bills made by the city surveyor, in conformity with section 24 oh the new city charter. That the contractor, in case the appropriation in the annual budget or estimate of the expenses for the year in which the surveyor’s certificate may be issued, etc., shall be exhausted when said certificate is delivered to said contractor or contractors, shall not apply to the administrator of public accounts for a warrant therefor, until a fund for the payment thereof shall be provided in the budget for the following year.”

The last paragraph of the. act is as follows : “ And said Connell hereby releases and discharges the city from any and all liability connected with said work, and particularly for the payment of the same or any part thereof, in case said Connell should fail or be unable to collect from the property owners their proportion or share of said work.”

On the 9th of July, 1872, a proposal made by plaintiff was accepted by the city council. Their acceptance is before us, and — from its tenor —the proposal then accepted was, exclusively, to construct — at the rate of $2.93 per lineal foot — sidewalks and curbs on Second street. Connell’s offer was conditionally accepted by the council. Its resolution is partly in these words :

“ In the notarial act, the contractor shall distinctly disclaim and relinquish any recourse upon the city, in case he shall fail to obtain from the property owners, payment for his work.”

This was more than one of those unimportant modifications of a contract, the assent to which is necessarily implied. With that modification, the contract which would have resulted from Connell’s proposition, and its unconditional acceptance by the council, would have been widely different from that which resulted from the conditional proposition of the council, and its unconditional acceptance by Connell.

R. C. C. article

The last proposition was not the same which had been submitted by Connell, and — until the 15th of July, when that last one was accepted by him, there was no contract between him and the council. Two days before his acceptance, Alexander Hill had contracted with one William Murray to do the whole of the work which — on the 15th — Connell had agreed to perform. To do that work, to do it, according to the council’s specifications, Murray’s price was $2.50 per lineal foot — forty-three cents less than that demanded by and allowed to Connell. That fact was immediately brought to the knowledge of the city surveyor, who testified that “ he thought he told Mr. Hill that it was impossible for him to give permission to any one to make a banquette, after the contract was sold.”

It does not appear when the work was begun by Connell. He was to commence it, at the latest — in ten days after the council’s approval of the adjudication. That approval was given on the 9th of July — the modified contract accepted on the 15th, and Connell’s work on Second street was undoubtedly begun after defendant’s contract with Murray and its notification to the city surveyor. It was completed on or before the 23d of November — for, at that date, the city surveyor delivered to Connell two certificates attesting that fact, and attesting too that, for work done in front of his property and the cost of publishing petitions, Alexander Hill was indebted to said Connell in the sum of $1671.10.

To recover that amount, plaintiff has brought this suit and relies on the council’s ordinance, the notarial act of the 15th of July and the surveyor’s certificates.

In his answer to plaintiff’s demand, defendant denies the allegations on which it is based, and particularly that the city ever complied with the formalities prescribed by law to empower its authorities to improve the streets and make sidewalks, at the expense of the front proprietors. He also relies on the fact that he had employed Murray to do his work, and that said Murray was prevented by plaintiff from executing his agreement.

In support of one of the branches of the defence, Hill’s counsel argue that — as they have denied a compliance by the city with the formalities prescribed by law to bind the front proprietors, it was incumbent on plaintiff — if those formalities were fulfilled, to have proven that fact, •and that the council’s resolution is not, by itself, sufficient to establish • the legal existence of the denied authority of the council. We believe otherwise.

In a kindred case, the Supreme Court of the United States said: “ It is claimed that the contract is for the borrowing of money and that the complaint is bad, because it does not aver the sanction of two thirds of the electors of the city. If the fact were so, the consequence would not follow. If the city could make such a contract, with that sanction, the sanction will be presumed until the contrary is shown. The nonexistence of the fact is a matter of defence which must be shown by the defendant.” Gelpcke vs. City of Dubuque, 1st Wallace, p. 293.

We might have paused and considered a special denial, a denial that a specified formality had been omitted ; for instance, that, as provided by the charter, no petition signed by the proprietors of the locality had been presented to the city council — or, if presented, had not been published in the official journal, etc.; but the indefinite allegation that the formalities required by law to authorize the council’s ordinance, have not been complied with, is but the expression of an opinion, which— though it comes from eminent counsel — leaves unremoved an adverse presumption, the presumption that the ordinance was regularly adopted by the city officials.

21st Howard, p. 539.

Had defendant notified, not merely the city surveyor, but the mayor and Connell of the existence of his contract with Murray — had he established that Murray had commenced, or was about to commence the sidewalks, and that he had been prevented by Connell from executing his contract, there can be no doubt that — for said work — plaintiff could have recovered but at the rate of two dollars and fifty cents per lineal foot. He, however, did not establish those facts, and he is liable under the contract of the 15th of July.

He is liable, but for what amount ? Is it for the whole of the price claimed by and due to Connell ? Is it for the whole of the publication of the owners’ petition to the council ? We believe not. Under section No. 24 of act No. 7 of the Legislature of 1870, the whole cost of sidewalks constructed at the request of one fourth of the proprietors, was to be borne by them ; but that act was amended in 1871, and the contract of the 15th of July contains expressions and clauses indicating the intention to relieve the city from the responsibility fixed by said amendment.

The 10th section of act No. 48 of 1871, provides “that, when made at the discretion of the council, or upon the petition — not of one fourth of the owners, but the owners of the majority of the property which fronts upon any street or streets, the paving, grading or improving of said streets, shall be assessed and paid' as follows, to wit: one third of the cost of paving, grading and improvements in front of the property, and the whole cost of the intersections of other streets with the street or streets so paved, graded or improved, shall be paid by the city, and the remaining two thirds by the owners of the property which fronts upon said grading, paving or improvement.”

It seems that the pleadings in this case were not prepared under the act of 1871, and — on that account — we have hesitated to construe the contract of the 15th of July 1872, as- one which was entered into, and which can be enforced but in accordance with the sections of said act which amend that of 1870 on the same subject. We have carefully compared the apparently conflicting provisions of those statutes, and conclude that defendant is only liable for two thirds of the cost of the sidewalk constructed in front of his property.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed — and, proceeding to render such judgment as should have been rendered by the lower court,

It is further ordered, adjudged and decreed that Nicholas Connell recover of Alexander Hill the sum of eleven hundred and sixteen dollars and six cents, with legal interest thereon from the twenty-eighth day of March (1878) eighteen hundred and seventy-three, with privilege on the prdperty described as follows, to wit: two hundred and ninety-three feet six inches, running feet front on south side of Second street, between Willow and Claiborne streets, by a depth of about two hundred and ninety feet on said lateral streets and two hundred and seventy-six feet six inches, running feet, on south side of Second street, between Magnolia and Locust streets, by a depth of about two hundred and ninety feet on said lateral streets ; the costs of the appeal to be paid by plaintiff, those of the lower court by defendant.


author: Marr, J.

text:
    No. 5482.
    E. H. Murrell vs. Mrs. Serena Lion and Husband.
    Any doubt as to the intentions of the parties to a contract of lease, arising out of uncertain terms of the contract, will be construed in favor of the lessee. It is the business of the lessor to have the agreement expressed in clear and certain, terms.
    Where the contract of lease leaves it doubtful whether the lease is to terminate on the first or the thirty-first of a certain month, the lessee may elect which of the two dates it shall end on.
    Where the condition of a contract of leasels that if either party desires to terminate the lease he must give notice of his intent one monffibefore the first of the succeeding October, and it happens that the first of the succeeding September falls on Sunday, notice served tne second of September will satisfy the condition.
    Where a lessee continues in possession aRer the expiration of the lease, without a renewal of the contract, there is a tacit reconduction of the lease by the month, terminable on fifteen days notice.
    APPEAL from the Eiftb District Court, parish of Orleans. Cullom, J.

      Geo. L. Bright for plaintiff and appellee.

      B. F. Jonas for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

Barrett, agent for Murrell, by writing, dated the twenty - seventh of October,' 1871, leased to Mrs. Lion the store No. 31 Natchez street, “for and during the full space and term of twelve months, to commence on the first day of October, 1871, and to cease on the thirty-first day of October, 1872.” The rent for the entire term was $1260, payable in installments of $105 at the end of each and every month, “ any month of which not being punctually paid the balance of this lease thereby becomes due.”

It was also stipulated in this writing that, “ If neither party to this lease does not give written notice, at least one month previous to the first of October, 1872, of their intention not to renew the same, then this lease will be considered as continued as in full force, as if renewed yearly.”

The first of September, 1872, fell on Sunday; and on Monday, the second, Mrs. Lion wrote to Barrett that she would vacate the premises, without saying at what time, “ unless you lower the rent; ” and she requested an answer.

On the first of October she wrote to Barrett again, giving hiin for- • mal notice that “ your store, No. 31 Natchez street, will be vacant on the first of November.”

On the fourteenth of October Barrett acknowledged receipt of these two communications; and he added that the notice did not come in time, and, therefore, “ you are bound for another year’s rent.”

On the thirtieth of October Mrs. Lion paid the rent for that month; and on the second of November Barrett received the keys from Lion and took them away with him. On the same day he brought this suit to recover, under the contract, $1260, rent for one year from the first of October, 1872 ; and he caused the furniture and effects, which had been removed from No. 31 to an adjoining store, to be provisionally seized.

By similar writing, dated twenty-sixth of December, 1872, Barrett leased the store No. 31 to Gauche, “ for and during the full space and term of thirty-six months, to commence on the first day of October, 1872, and to cease on the thirty-first day of September, 1875.” It is remarkable that this writing contains the same clause with respect to notice and renewal as the lease to Mrs. Lfon, in the identical words, the only difference being that the date, 1875, is substituted for 1872.

Gauche testifies that he got the keys on the second of December, but that he did not pay rent “ until the fifteenth of December.”

Clarence Lion says he called on Barrett on the fourth of September and asked if he had received that note. Barrett said he had. Clarence asked if ho answered it. He said, “ No! Tell your father to move whenever he likes.”

There is nothing in the record to contradict this. Barrett, when asked by plaintiff’s counsel, “Did you ever agree to renounce any of the conditions of the lease,” answered: “Never, sir.” Again, being asked, “Did you ever agree that Mrs. Lion might move out and that there would be no claim upon her ? ” he answered: “ Never.”

He did not state, and he was not asked to state, whether he had said to Clarence, “Tell your father to move whenever he likes.” Clarence went to Barrett on the fourth of September for a purpose. It was to ascertain whether Barrett had received the note of the second of September, and whether he had answered it; and what Barrett said to him on that occasion no doubt fixed itself in his mind. It informed him of the material facts that Barrett had received the note; that he did not intend to lower the rent; and that he was willing that Mrs. Lion should terminate her relation to him as lessee if she chose to do so. The uncontradicted statement of Clarence must be taken as true, although it may also be true that Barrett never did agree, specifically, “ to renounce any of the conditions of the leaseor that Mrs. Lion might move out “ and that there would be no claim against her.”

We are inclined to consider the clause as to notice and renewal in the lease to Mrs. Lion void for want of certainty. Did the parties intend to require the notice to be given one month previous to the first of October, or did they really intend that it should be one month previous to the thirty-first of October?' The lease was for twelve months; but it was to begin on the first of October and to end on the thirty-first of October. Was the thirty-first of October, in reference to the end of the term, written in error; or was the first of October, in reference to the notice, really intended to be the thirty-first of October ?

The lease is to be considered as continued: Continued for what length of time? Renewed yearly implies more than a single renewal. It was the business of the lessor to explain himself fully ; and to show precisely the meaning and extent of the contract which he is seeking to enforce. Does the clause mean, necessarily, that the lease shall be considered as continued for one year only, as if renewed once for a single term only ; or is it not equally susceptible of the interpretation that it shall continue for an indefinite number of years, as if renewed at the end of each term of one year, until it shall be terminated in some manner ?

The notice contemplated must have had reference to the end of the term, as it manifestly had in the similar clause in the lease to Gauche. The lease to Mrs. Lion was declared to be for twelve months ; but in terms equally explicit, the commencement was declared to be the first -of October, 1871, and the end the thirty-first of October, 1872. Was it a lease for twelve months, or a lease for thirteen months ?

The lessor might well desire to know a month before the termina‘tion of the lease whether the lessee intended to continue the lease for another year, so that he might secure another tenant; and that is what is stipulated in the lease to Gauche. On the hypothesis that both parties understood and intended that the lease to Mrs. Lion was to terminate on.the first of October, and not on the thirty-first, the notice ¡might have been given at any hour before midnight of Saturday, the thirty-first of August, 1872. As Sunday is a dies non juridicus, notice given Saturday night or Sunday would have accomplished no more than like notice given on Monday; and, in point of fact, the notice given ■on Monday, the second day of September, included all the dies utiles of the month previous to the first of October.

The verbal answer to Clarence was an acknowledgment of the Teceipt of the notice of the second of September; it was also the refusal •of Barrett to lower the rent, and the unequivocal expression of his consent that Mrs. Lion should terminate her relations to him as lessee by vacating the premises as she informed him she would do.

Mrs. Lion might well have been in doubt as to whether she had the right to remove and to stop the rent before the thirty-first of October ; and this may account for her failure to state, in the note of the second of September, at what time she intended to vacate the store. She and Barrett both understood, however, that she meant to vacate at the end of the term, whenever that might be, if Barrett would not consent to •reduce the rent. It was not a forced construction of the lease to interpret it as continuing until the thirty-first of October; and Mrs. Lion •chose to remain in possession and to pay the rent up to that date, as she ■might well have supposed she was bound to do ; but she took care to give formal notice, on the first of October, that the store would be ■vacant on the first of November. On the hypothesis that the first notice ■was sufficient, and that the lease ceased on the first of October, the holding over for the month of October was simply a reconduction by the month, terminable on giving fifteen days notice. • R. O. O. 2686.

In making the lease to Gauche for a term of thirty-six months, beginning on the first of October, 1872, and ending on the thirty-first of . September, 1875, Barrett proceeded on the assumption that the lease to Mrs. Lion had terminated on the first of October, although she continued to occupy and paid the rent, at the rate stipulated, until the end of October.

Our conclusion is that the lease to Mrs. Lion was not renewed, and that she was not liable for rent after the thirty-first of October, 1872.

The judgment of the District Court from which defendants appealed, was in favor of plaintiff, for $1260, with five per cent interest from judicial demand, second of November, 1872, that is for one year’s rent, from the first of October, 1872. The check to Barrett’s order, and his receipt of the thirtieth of October, 1872, for the rent for that month, offered .in evidence, must have escaped the notice of the district judge, as well as the lease to Gauche for thirty-six months, at the rate of $1000 for the first year, and $1100 for each of the two succeeding years. We think the judgment should have been in favor of defendants.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed ; and that there be judgment in favor of defendants, appellants, rejecting the demand of plaintiff, appellee, with costs in both courts.


author: Manning, C. J. Spencer, J.

text:
    No. 6508.
    First Presbyterian Church vs. City of New Orleans.
    Until a definitive j udgmeut, rendered by a court of competent jurisdiction, has been set aside, either on appeal or by an action of nullity, money paid under it can notbe recovered back.
    Property used for school purposes, and the lots appurtenant to and used therewith, are exempt from taxation.
    Property belonging to a church, and used as a parsonage, or rectory, is not exempt from taxation.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, J.

      Singleton & Browne and John P. Smith for plaintiff and appellant.

      Samuel P. Blanc for defendant and appellee.
   The opinion of the court on the original hearing was delivered by Manning, C. J., and on the rehearing by Spencer, J.

Manning, C. J.

The City of New Orleans obtained judgment against the First Presbyterian Church for taxes of 1874, on an assessment against two pieces of its property. This judgment became final and execution issued, under which was collected from the defendants in execution five hundred and eighty dollars and eighty cents for the amount of judgment and costs.

Afterwards, the City sued to recover five hundred and thirty-two dollars and fifty cents for taxes of 1876 assessed on several pieces of property. The present suit is to obtain the repayment to the plaintiff of the sum paid'in satisfaction of the judgment for the taxes of 1874, and also to have established the exemption of all of its lots from taxes.

The money paid in satisfaction of the judgment for the taxes of 1874 can not be recovered back. It was rendered after a due observance of all the forms for that kind of action. Its nullity is not alleged nor prayed, and until set aside for some legal cause, or reversed -on appeal,, it must stand good, and the money paid under it remains the property of the defendant.

A part of the property assessed for taxation in 1876 is a lot and improvements used as a school-house and grounds. The testimony is that the school is established by the Church, and is conducted under its supervision, and the lots adjacent to it are used for purposes of ingress and egress to the school building. This property is exempt under that clause of the Bevised Statutes which exempts school-houses and the lots appurtenant.

But it is further claimed that a building and lot, used as a parsonage- or rectory, is also exempt, and we do not think the law sanctions that exemption. The rule is that all property is liable to taxation. The Legislature, acting in subordination to the Constitution, has exempted certain classes or descriptions of property. Among the exemptions are “ colleges, school-houses, and other buildings for the purpose of education, and their furniture, apparatus and equipments, and the lots thereto appurtenant and used therewith, so long as actually used for that purpose only.” sec. 3233. Parties who claim exemption from taxation must shew that they belong to one of the favored classes, and we do not construe the terms of the above recited enactment as including a residence of the clergyman who officiates in the church. It is a matter of no consequence whether the rectory is on an adjacent lot to the church or whether it is separated from it by several streets or blocks of buildings, as this is. The residence of the clergyman is in no proper or legitimate sense appurtenant to the church, and is not exempt from taxation. It may be very convenient, as it certainly is very proper, that the church should own a lot and building, devoted or appropriated to the use of the rector as a residence, but it must be taxed until the Legislature shall enlarge or increase the classes of exempted property.

Judgment affirmed.

Mr. Justice Marr and Mr. Justice Egan took no part in the decision of this cause.

On Application for Rehearing.

Spencer, J.

In the opinion of the court heretofore rendered, by inadvertency, paragraph No. 2 was referred to and copied instead of paragraph No. 4 of section 3233, of the Revised Statutes. The latter paragraph is as follows :

“ Churches, chapels, convents, and other public buildings for religious worship, with the furniture and equipments and lots of ground thereto appurtenant and used therewith, so long as the same shall be actually used for that purpose, only.”

The counsel insists that not only the church, “ but property actually used for the ‘purposes ’ of the church,” is exempt. He argues that the parsonage is a property used for the purposes of the church, inasmuch as a church must have a parson, hnd the parson must have a house, We do not understand the words “for that purpose only” in the statute quoted as having any such' meaning. They refer to, and are used to avoid repetition of the words “ for religious worship.” The substance and marrow of the law may be stated thus : churches, and other public buildings for religious ivorship, with their appurtenant grounds, are exempt from taxation so long as they are actually used “for that purpose,” i. e. “for religious ivorship.” A parsonage may be property used for church purposes, but it can not be said to be used “ for religious ivor.ship.” The dominant idea in the statute is that the exemption shall be limited to “public buildings ” and appurtenant “lots of grounds,” used “ for religious worship.”

Exceptions to general laws are always to be strictly construed — a party claiming exemption from their operation must bring himself clearly within some exception. These are 'elementary rules of interpretation.

Rehearing refused.


author: Spencer, J.

text:
    No. 6761.
    State ex rel. N. O. City Railroad Co. vs. the Board of Assessors.
    The power of the arbitrators, to whom the law refers the complaints of taxpayers touching the over assessment of property made by the tax assessors, is limited to ascertaining the value of the property listed on the assessment rolls. They have no power to determine what is, and what is not exempt from taxation, but any award they may make reducing the valuation of property listed, is binding. “ Over assessment” means over valuation.

    A mandamus will issue to compel the Board of Assessors to enter on their assessment rolls, the value put by the arbitrators on any property listed on those rolls.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Louque & Fernandez and Wm. H. Huntior plaintiffs and appellants.

      B. F. Jonas and Samuel P. Blanc for defendants.
   The opinion of the court was delivered by

Spencer, J.

Relators were assessed for $1,140,000, as follows :

'On real estate.......'........................................$126,500

On horses, mules, etc........................................ 52,000

On cars and vehicles......................................... 86,500

•On capital stock (invested otherwise than above).............. 875,000

They complained to the Board of this last item of assessment as being excessive. The Board refused a reduction, and the matter was referred to arbitrators under sections 15,16, 84, 87, and 88, of act No. 96, of 1877.

The arbitrators made the following report and decision:

“ To the Administrator of Assessments, and Fred. Wintz, Esq., President City R. R. Company, N. O.:
“ Gentlemen — On investigation of the question submitted, we find that the City Railroad Company, through its several contracts with the city, acquired vested rights of way, etc., covering in our opinion the question of franchise during the duration of their respective charters, and that each contract contains the following clause : ‘ The contractor or contractors shall pay into the city treasury, upon the assessed value-of said roads and fixtures, the annual tax levied upon real estate, and the value of said roads and fixtures shall bo assessed by the usual mode of assessment.’ Which while completely silent regarding franchises, is very specific as to other objects of taxation. That, therefore, the capital of this corporation should be estimated for assessments—
First — Upon cost of construction as derived from the company’s • books.................................................. $667,278
Less a reasonable allowance for difference now existing in cost of material, labor, etc., than when built, say 33J per cent.. 222,426
$444,852
Second — Bonds of the Mechanics’ and Fair Association....... 2,000
Third — 103 shares N. O. O. R. R. stock, taken by the company. 10,390
Leaving an assessment on capital............................ $457,152
“We have based our ideas as to a proper reduction to be made from information derived from various and reliable sources, and assumed a percentage we believe to be rather below than above what has actually occurred.
“Understanding that we were only requested to arbitrate on the question of capital, we have given consideration alone to that subject.
“ Yours, very respectfully,
[Signed] “LIONEL O. LEVY,
“ED. A. PALFRY.”

The Board refused to abide by the award, and amended the assessment of that item as follows:

Construction, road, switches, etc., valued by arbitration....... $457,152

Capital over and above other assessments.................... 417,848

Making the total............................................ $875,000

Just as it was before.

Thereupon, relators applied for mandamus to compel the Board to reduce the assessment in conformity to the award. The Board answered, that the arbitrators had exceeded their authority by undertaking to exclude from their estimate a part of relators’ capital. The court a qua-refused the writ, and relators appealed.

We are satisfied that under the provisions of the statute in question the power and duty of the arbitrators are limited to the ascertainment of the value of the things listed, on the assessment rolls. They can not assume to decide that any part of the things there listed, whether real or personal, corporeal or incorporeal, are exempt from taxation.

Section 87 gives this right of arbitration whenever the taxpayer-complains of an “ over assessment; ” and the same section provides the-same remedy, when the Auditor or other proper officer complains of ans “ under valuation.” We think it fair and reasonable to interpret the-words “ over assessment ” as meaning “ over valuation.”

As there has been no complaint of an “ under valuation,” we must presume that the sum of §875,000 represented the entire capital stock, outside of the property specifically named and listed.

If so, why should not relators at least have the benefit of the reduction of §222,426, which the award clearly fixes as over valuation of the-material and costs of construction of relators’ railroads ? The property,, the value of which the arbitrators thus reduce, undoubtedly entered into- and formed part of the capital stock included in and estimated by the-Board in the item §875,000. So that, admitting that the arbitrators had' no power to exclude any part of the property from their valuation and estimate, yet their award as to the value of what they did take into consideration ought to have effect. Thus, if the assessment roll lists five-, pieces of property, while it is true that the arbitrators can not declare-any one of them exempt, yet if they do exclude' one or more, and value-the others, the reduction awarded as to these last ought to be effective..

The award seems to proceed upon the assumption that this assess- • ment of §875,000 was made up as follows :

Costs of material and construction......................... $667,278-

Franchise purchased from the city........................... 207,722;

Making..................................................... $875,000-'

At least they claim to have valued every thing else of the capital stock except what was invested in the purchase of the franchise, and this they clearly exclude.

Whether the franchises of these roads are exempt from taxation or not, is not now before us. But it is evident the arbitrators intended to-include in their estimate every thing else; and they say, in effect, excluding that, and the real and personal property specifically named and listed, the balance of the capital is valued too high, by the sum of $222,426,. We think to that extent the award is binding, and that the assessment should be reduced accordingly. Deducting this amount from $875,000, there remains $652,574, which is the proper amount of the assessment.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that a peremptory writ of mandamus issue to the defendants, directing them to enter upon said assessment roll under the head “ capital stock” a deduction of $222,426 as awarded by said arbitrators. It is further ordered that respondents pay costs of this suit.


text:
    No. 6390.
    Robert H. Bartley vs. City of New Orleans.
    Where in a contract to deliver a certain thing, no time for the delivery is fixed, the legal implication is that -it shall be delivered within a reasonable time from the date of the contract.
    If the party who has contracted to deliver a certain thing at a fixed price makes a tender of it at the proper time, and the party who has contracted to receive the thing refuses to receive it, the former may recover from the latter whatever damages are proved to have directly flowod from the latter’s breach of contract.
    Whoever claims damages, based on a deprivation of prospective profits, must establish such facts in evidence as will enable the court to fix with certainty, the amount of the deprived profits.
    If the vendee in a contract of sale refuses to receive the article sold, the vendor may sell it at private sale; and on proving thathe thus sold it at its full market price, he may recover from the vendee the difference between that price, and the price stipulated in the contract of sale.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, .J.

      Hornor & Benedict for plaintiff and appellee.

      B. F. Jonas, City Attorney, for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues the city for breach of contract, and claims $11,583 30 as loss and damage sustained thereby.

He alleges that, as transferee of one W. W. Walker, he held a contract with the city to furnish 250,000 feet, running measure, of square timber, required for repairs to the city wharves; delivery to begin within five days after ad j udication of contract, at the rate of 50,000 feet per month, if required, and to be delivered in front of the city at such localities as may be designated by the city surveyor, etc. The price to be paid in wharf improvement bonds, at the rate of ninety cents cn the dollar, and eighteen cents per running foot. This contract was entered into on the sixteenth of June, 1874.

The city called for and received from time to time about 80,000 feet; but in the spring of 1875 the city let out for a term of years the contract for repairing the wharves, requiring the contractor to furnish his own material therefor. Hence the city had no further use for the timber plaintiff was under contract to deliver. The plaintiff notified the city that he was prepared to deliver, according to contract, but received no response. On the seventeenth of June, 1875, he made, through a notary, a formal tender and offer to deliver, according to the contract, the remaining 170,000 feet; and notified the city that if his tender was not accepted on or before the twenty-second of June, that he would sell said timber for account and at the risk of the city, and hold her responsible for any balance due him under the contract. The city paid no attention to this, offer, and on the twenty-third of June plaintiff made a public protest. In the meantime, however, the city ordered 6000 feet more, leaving. 164,000 not called for. Thereupon plaintiff brings this suit, alleging the above facts, and claiming that he sold said timber at private sale, and lost thereon as follows :

On 127,453 feet he lost 5 9-10 cents per foot. On 2.283 feet he lost 8 4-10 cents per foot, and on 14,468 feet he lost 11 <h-10 cents per foot; making his aggregate loss $11,583 20. This amount he claims from the city.

The answer of the city of New Orleans (page 13, Record,) admits the contract, but denies that the city ever made default thereon, and alleges that no term was fixed for the delivery of the said timber, but that said timber was to be delivered as required by the city, and at such points as might be designated by her proper officers, and “Respondent alleges that she did not require said timber up to the time of the tender, protest, and sale pretended to have been made by plaintiff; and respondent denies that the said contraes gave any right to plaintiff to tender the said lumber at an inconvenient time, or in an unnecessary quantity to this respondent.”

Further answering, respondent denies that plaintiff ever had the quantity of lumber on hand, as alleged, at the time of the pretended tender, or that he was ready to deliver the same, and denies that the lumber which he had on hand was of the quality and description required by the contract; and respondent further denies that plaintiff ever made sale of the lumber, as alleged, for the risk of respondent, or that he ever suffered a loss upon the same, as alleged ; and respondent further denies that the said sale (if made at all) was made with her consent or knowledge, or in the mode and manner required by law, or that she is bound by it, or concerned in .if, in any manner or form whatsoever.”

There was judgment in plaintiff’s'favor for the full amount claimed, and the defendant appeals.

We think that under a fair interpretation of the contract the city was under obligation to take from plaintiff 250,000 feet of timber, and that plaintiff was bound to deliver at the rate of 50,000 feet per month, “if required.” These words, “if required,” qualified not the city’s obligation to take, but that of the plaintiff to deliver. The contract does not, it is true, fix the time within which the city was to take the 250,000 feet, but where there is no term fixed for the performance of an obligation it should be within a reasonable time. C. O.

It is manifest, from the facts disclosed by this record, that after the city had let out or sold, as stated, the contract for wharf repairs for a term of years, it had no further use for plaintiff’s timber and determined not to take it. We think, therefore, that plaintiff properly put her in default, as stated, on the twenty-second of June, and is entitled to recover such damages as he has proved to have been the direct and immediate consequence of her breach of contract. We do not find that in his formal, tender he demanded cash instead of “ wharf improvement ” bonds. He did, in a previous communication to the mayor, suggest that, as the city was, by the constitutional amendment adopted in Novvember, 1874, prohibited from issuing any more bonds, he was willing to take cash at the rate of seventy cents per dollar in lieu of bonds ; but we repeat that in the tender and offer made on the twenty-second of June he does not demand cash, or in any wise designate the mode of his payment.

We now address ourselves to the inquiry, what amount of damage and loss has plaintiff proved himself to have suffered ?

Under date October 12th, 1875, plaintiff furnished the city authorities the following “ statement ” of his claim, to wit:

“Sold to Gubernator and Terry, August 2nd, 1875, the following timber then on hand:
“First lot, 22,083 feet, on which there was an actual loss of five cents per running foot, amounting to.........................$1104 15
Second lot, 14,464 feet, on which there has been an actual loss of eight cents per foot..................................$1157 12
Third lot, losses on profits on 170,000 feet, amount undelivered on contract, of five cents per foot........................$8500 00

It will be noticed that he claims loss on the whole 170,000 feet at five cents per foot, and then claims losses on 22,083 feet of this same 170,-000 feet. In other words he claims losses on 36,547 feet more than he pretended the city was obliged to take.

It will also be noticed that under the head “third lot” his claim is for “ losses on profits.” It is manifest from the face of this statement that the plaintiff did not then have or sell to.Gubernator any timber except that described as “first lot” and “second lot,” amounting to 36,547 feet. Indeed, plaintiff, when on the stand as a witness, was forced to admit that he did not have and did not sell to any one the 127,453 feet on which he claims in his petition 5 9-10 cents per foot loss. He says, to use his own words: “ That timber was not sold, * * 22,083 feet was sold at a loss of 4 8-10 cents per foot * * and then 14,464 feet at a loss of 4 1-10 cents per foot.” In his petition he claims a loss on this 14,464 feet of 11 4-10 cents per foot, and as we have seen in his “statement” to the city authorities he claims a loss on it of eight cents per foot. In another part of his testimony he admits in substance that this 127,453 feet on which he claims loss was never got out, but he claimed “what there would have been if the contract had been carried out,” he says. In fine, the testimony of his own partner, Markey, as well as that of Gubernator and Wells, satisfies us that these 127,453 feet of timber were, like Falstaff’s adversaries “ in buckram.”

In fixing his loss on this imaginary lot of timber, he assumes that the city was to pay him, say eighteen cents per foot in bonds, and then imagines or supposes himself to have sold it at a much less price. This mode of estimating damages is too speculative for courts of justice to adopt. There is nothing in this record showing what it would have cost plaintiff to get out, bring to, and deliver in this city the timber in question, and nothing, therefore, to show what are the profits of which he has been deprived by the city’s failure to carry out its contract.

We think the evidence shows that plaintiff had on hand and ready for delivery on the twenty-second of June, the date of his tender, 36,547 feet of timber, timber hardly up to the specifications of his contract, but which was afterward bought by Gubernator and used, by the city’s consent, in repairing the wharves. When on the stand as a witness, he states his loss on this timber as follows :

On 22,083 feet, 4 8-10 cents per foot, making..................81060 08

On 14,464 feet, 4 1-10 cents per foot, making................... 593 02

Making total loss.........■.............................81653 02

It is objected on the part of the city that plaintiff could not sell at private sale for her account and risk. This may be true ; but it is shown that he got for the timber all he could in the then state of the market, and as the city would not take the timber, he had a right to sell it for his own account, and claim from, the city as damages the losses sustained.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount thereof to the sum of sixteen hundred and fifty-three dollars and two cents, and as thus amended that it be affirmed. Costs of the court below to be paid by defendant, and those of appeal by plaintiff.