text:
    No. 3443
    Second Circuit
    STATE OF LOUISIANA EX REL. GUARANTY BANK AND TRUST CO. v. DOWNS
    (January 21, 1929. Opinion and Decree.)

      Hake'hyos, Provosty and Staples, of Alexandria, attorneys for defendant, appellant.
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellee.
   WEBB, J.

The relator, Guaranty Bank & Trust Company, filed suit against U. T. Downs, sheriff and tax collector of Rapides Parish, on March 30, 1928, and obtained a preliminary writ of mandamus ordering the sheriff and tax collector to show cause why he should not accept an amount alleged to have been tendered in payment of a license tax and penalties due by relator, for the year 1928, and issue a receipt therefor, as required by law, and, on the same date, the sheriff and tax collector proceeded by rule against relator to collect the license tax, together with penalties, attorney’s fees and costs, and the respective suits having been put at issue, they were consolidated, and on trial the writ of mandamus was recalled and judgment rendered against the Guaranty Bank & Trust' Company for the amount of the license . tax, together with penalties, attorney’s commissions, and costs, and the Bank appeals.

In the mandamus proceedings relator alleged that it had mailed to the sheriff and tax collector on March 5,1928, a check for the amount of the license tax, and that the check had been received by the sheriff ; that on the 19th day of March it had received a letter from the attorney representing the sheriff and tax collector, demanding payment of the license tax, penalty, and attorney’s fees, and that upon receipt of the letter relator called at the office of the sheriff and tax collector and informed him that the check had been mailed, but that the sheriff and tax collector refused to accept the amount of the tax without the penalty and attorney’s fees, and relator then made a tender of the amount of the tax and penalty, which was refused, and, following the tender, the amount had been deposited in , the registry of the court, to which defendant sheriff and tax collector first filed an exception of no cause of action, and then answered, denying that relator had mailed, or that he had received, the check alleged to have been remitted on March 5th, and admitted the allegations relative to demand having been made by the attorney for payment of the license tax, penalty, and attorney’s fees, and the tender, and further pleaded that he had instituted suit against relator for the amount of the license, penalty, and attorney’s fees, and the Guaranty Bank & Trust Company answered the rule filed by the sheriff and tax collector by pleading the matters set up in the mandamus proceeding.

During the course of the trial the amount deposited in the registry of the court, which waa admittedly sufficient to cover the amount of the license and penalty due at the date of the deposit, was accepted by the sheriff and tax collector, with the consent of the parties that the acceptance would not affect the claim for attorney’s fees, and the only questions which are really in dispute are the fact that the judgment was rendered without taking notice of the acceptance of the deposit, and the allowance of the commission for the attorney.

The statute, Act No. 205 of 1924, which is practically identical with the former statutes relative to the procedure in collecting licenses, provides that the license tax for the current year shall become due on the 1st of January, and delinquent on the 1st of March, and that on the 2nd of March the tax collector shall make out and deliver to the attorney appointed to aid in the collection of the taxes a list of the delinquent license taxpayers, and that the attorney shall immediately proceed to collect same, and while in the present instance the list does not appear to have come into the possession of the attorney until about the 15th of March, the demand for payment was made of the Guaranty Bank & Trust Company after the list was given to the attorney and prior to the tender by the relator, and counsel apparently base their contention that the attorney’s fees were not due, first, on the theory that the deposit of the check in the post office on the 5th of March was a payment of the license, and that the tender was made prior to the suit.

While the evidence shows that the check was deposited in the post office on the 5th of March, the tax collector denies that it was received, which was sufficient to overcome any ©resumption that the check was received arising from the letter containing the check having been deposited in the post office; however, the statute provides that receipted form of license, which the iaw requires the tax collector to issue, shall be the only evidence of payment, and it being the duty of the license tax debtor to apply for and obtain the license (McGuire vs. Vogh, 36 La. Ann. 812), the fact that a certified check may be remitted could not under the law be accepted as proof of payment, and as the statute (Section 38) provides that a commission of ten per cent on the amount of taxes and penalty shall be paid by the delinquent tax debtor to the attorney through whose agency the collection i% made, it is not essential that the attorney should have filed suit in order to render the commission due when the delinquent list had been placed in his hands and demand for payment had been made.

It does not appear that the Court’s attention was directed to the agreement of the parties for the withdrawal by the Sheriff and Tax Collector of the amount deposited in the registry of the Court, and it appearing that the deposit was sufficient to cover the amount of the license and penalty, due, the license debtor should be relieved of any liability after the date of the deposit, which included the penalty for the month of March, or twenty-five dollars (Liquidating Commissioners, etc., vs. Marrero, 106 La. 130, 30 So. 305).

It is therefore ordered that the judgment appealed from be amended so as to relieve the Guaranty Bank & Trust Company from the payment of the penalty of two per cent for any further period than the month of March, and as amended the judgment is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2654
    Second Circuit
    CARR ET AL. v. CROW
    (March 12, 1929. Opinion and. Decree.)

      ■ Breazeale 'and Breazeale, of Natchitoches, attorneys for plaintiffs, appellants.
    Nettles and Bethard, of Coushatta, attorneys for defendant, appellee.
   ODOM, J.

Plaintiffs have appealed from a judgment dismissing their suit on an exception of no cause of action.

As a cause of action, plaintiffs allege that defendant is due them a certain sum “for money belonging to your petitioners now in his hands and which he has acknowledged in writing in a letter addressed to the husband of Mrs. Carr as per copy annexed hereto, which he promised to pay and send petitioners through Mr. Carr a check for but which he has failed and now refuses to pay your petitioners.”

Plaintiffs allege further that they leased their plantation to one Willis Allen by written contract, which is attached, and that in Article 9 of said contract the said Allen had

“made certain cross ties and which he was to pay to your petitioners the market price stumpage before the ties were shipped. That B. L. Crow (defendant) obtained by some means possession of the ties so made by Allen and while being aware as shown by his letter of September 28, 1925, that the stumpage was to be paid to your petitioners sold the ties and received therefor One Hundred Sixty Six and 69/100 Dollars ($166.69), the stump-age value of the ties at the market price which belongs to your petitioner and which he promised to send a check for but subsequently changed his mind as shown by his letter of September 28, 1925, and declined to pay the same over until he had collected a debt he alleges is due him or his firm by Willis Allen and assumes to keep your petitioners money the price of property belonging to them to pay the debt of Willis Allen to himself or to his mercantile firm.”

Article 5 of .plaintiffs’ petition reads as follows:

“Your petitioner has been informed and believes and so believing alleges that Mr. Crow now claims he did not obtain the ties from Willis Allen but bought them from another negro and paid the negro for them and for that reason he feels that he does not owe petitioners for the stumpage, One Hundred Sixty Six and 69/100 Dollars ($166.69). Petitioners show that Mr. Crow has no legal right to appropriate the money in his hands belonging to your petitioners because he bought your petitioners property from some negro, or for any other reason.”

Paragraph 9 of the Lease Contract between plaintiffs and Willis Allen reads as follows:

“Lessee shall have the right to make cross ties of such suitable timber on the property and to pay lessors the market price per tie stumpage before the same are shipped.”

In arriving at a conclusion as to whether plaintiffs have set out a cause of action, we must construe their petition as a whole and must also read and construe in connection therewith the letter and contract attached thereto. This we have done, and are convinced that no cause of action is expressed.

Plaintiffs allege that defendant is due them. the amount claimed and that he has promised in writing to pay it, and counsel in'brief says:

“The exception of no cause of action admits the allegations of the petition”; and he continues:
“If it be admitted • that he (defendant) owes and has in his hands the money belonging to petitioners irrespective of any other allegation it presents a real and just cause of action.”

To say that an exception of no cause of action admits the allegations of the petition oversteps the rule. The rule is that such exception admits of the well-pleaded facts, but not conclusions of law which the pleader draws therefrom. (See La. Digest, Yol. VI, Sec. 62, p. 31, and the numerous cases there cited.)

In the case of First Natchez Bank vs. Malarcher-Damare Co., Ltd., et al., 135 La. 295, 65 So. 270, the Court said:

“In admitting whether a petition sets forth a cause of action, the allegations which amount to. mere conclusions of law are not considered as allegations of fact.”

The allegation in the case at bar that defendant owes plaintiffs the amount claimed, by reason of having in his hands a certain sum which belongs to plaintiffs, is but a conclusion of law which the pleader has drawn, based upon the facts alleged. It is for the Court to determine whether, as a matter of law, the facts alleged show that defendant owes that amount, and we hold that they do not.

The main, if not the sole ground on which plaintiffs base their right to recover is that defendant has in his possession a certain sum of money belonging to them. However, taking the ¡petition as a whole, it might be construed to mean that plaintiffs’ contention is that inasmuch as defendant took over ties which were made by Allen, he, by that transaction, made himself responsible for the stumpage value of the timber out of which the ties were made.

Plaintiffs attach to their petition the document evidencing the contract by which they leased to one Willis Allen a tract of land containing about 1,000 acres, Section 9 of which provides that lessee shall have the right to make cross ties from timber on the land and to pay the lessors the market price of the stumpage before the ties a,re shipped. When Allen manufactured the timber into cross ties, he owed to plaintiffs the stumpage value of the timber which he obligated himself to pay ¡previous to the removal of the timber. He owned the ties and, of course, had a right to dispose of them, and, under plaintiffs’ allegations, he did dispose of them, either to the defendant or to some other person. At any rate, plaintiffs allege that defendant came into possession of the ties. If Allen, who manufactured the ties, sold them direct to defendant and, if defendant assumed the debt which Allen owed for the stumpage,' he should, of course, carry out his obligation and pay plaintiffs the amount due them for the stumpage. But there is no allegation that defendant purchased the ties direct from Allen and no allegation, and in fact no intimation or suggestion, that defendant assumed Allen’s debt for the stumpage of the timber. Under plaintiffs’ allegations, there was no privity of contract between plaintiffs and defendant, and we are unable to understand how defendant could have come into ¡possession of any money belonging to plaintiffs. It is not alleged, nor can we infer from the pleadings, that Allen, who manufactured the ties, paid the amount which he was due for the stumpage into the hands of defendant.

Under Section 1, Act 195 of 1912, plaintiffs had a lien and privilege on the ties for the price of the stumpage, and, under Section 4 of the Act, plaintiffs could have brought suit against Allen to collect their debt and could have enforced their lien against the ties, provided the same had not been lost, and could have sequestered the ties. But this is not a suit against Allen to collect the debt, but one against a third person alleged' to have in his possession money belonging to plaintiffs.

On the other theory of the case, we think it can not be said that, if defendant purchased the ties direct from Allen, he thereby made himself responsible for the stumpage value of the timber from which they were made. Act 195 of 1912 does not provide that the privilege for the stump-age value follows the ties into the hands of third persons. If it be contended that plaintiffs had a vendor’s privilege on the ties, that privilege was lost by the transfer from Allen to defendant, because the vendor’s privilege does not follow movables into the hands of a purchaser, even though the purchaser knew that the ties had not been paid for.

See Burdeau vs. His Creditors, 44 La. Ann. 11, 10 So. 395; Dreyfous vs. Cade, 138 La. 298, 70 So. 231; Pierson vs. Carmouche, 146 La. 798, 84 So. 59; Robinson vs. Tatum, 7 La. App. 335.

If it be true that the defendant sold the ties, it does not follow, under any law of which we are aware, that the proceeds became the property of these plaintiffs, and it therefore follows that he had no money in his hands belonging to him.

But it is alleged that subsequent to the date on which defendant got possession of the ties, he promised by letter to pay for the stumpage. The letter speaks for itself. It states that the writer had ascertained that Allen owed $166.69 for the timber, and continues;

“He owes $190.00 on this lot of work. I asked Mr. Byde Brown if Willis would have anything coming out of the crop that I could get to go on this debt and he told me no. He also said that per his rent contract he had the use of the timber and for me to apply what I got out of the ties on this account.”

From this, we understand that defendant had advanced $190.00 to make the ties. Under the Act of the Legislature above referred to, he also had a privilege on the ties which was concurrent with that of the plaintiffs. At the suggestion of Byde Brown, defendant had applied the proceeds of the ties on his debt. Just what connection Byde Brown had with the transaction is not disclosed by the record. The letter referred to goes on to state:

“I cannot send you anything on these ties until I see whether Willis is going to have anything to pay me with out of his crop.”

This is the portion of the letter which plaintiffs construe as an unconditional promise to pay the debt of Willis Allen. We do not construe it as such. What the writer meant, and, we think, all he meant, was that if he could collect the amount which Allen owed him out of Allen’s crop, he would then pay the debt which Allen owed for the timber from which the ties were made.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.


author: WESTERFIELD, J.

text:
    No. 11,672
    Orleans
    AUTOMOBILE SECURITY CORP. v. HEIDINGSFELDER
    (February 11, 1929. Opinion and Decree.)

      George J. Untereiner, of New Orleans, attorney for plaintiff, appellee.
    Richard A. Dowling, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, brought a suit, via ordinaria, in the First City Court on a promissory note in the sum of $135.00, on which there was a balance due of $90.00, together with 8% interest and 25% attorney’s fees, the note being secured by chattel mortgage.

Defendant answered each of the six paragraphs of plaintiff’s petition with the word “denies”. In effect a general denial.

On the trial of the case the defendant was absent and unrepresented. Judgment was rendered for plaintiff as prayed for and defendant has appealed. After the transcript had been lodged in this Court, counsel for defendant presented an application for a writ of certiorari, in which it was alleged that certain testimony administered below was not in the record. Whereupon, a writ' issued from this Court, directing William R. Kinsella, Clerk of the First City Court, to file in the transcript a certified copy of all evidence taken on the trial of the case. In reply to this writ, the Clerk answered that his failure to file the evidence, was due to the fact that the stenographer, who had taken the testimony, had not transcribed it, and, that he believed the stenographer had mislaid or lost his notes and for that reason could not transcribe them.

Counsel for defendant argued that, under the circumstances, the court should reverse the judgment, and remand the case fqr trial de novo.

We have, in the past, on several occasions, where testimony had not been filed in the record because of the death of the stenographer before his notes could be transcribed, taken similar action upon ■ the ground that the interest of justice required such disposition. In this case, however, we do not believe the circumstances warrant such action here. The note and mortgage are in evidence and whatever oral testimony may have been administered could not conceivably affect the situation. The presumption is that the court acted upon sufficient evidence. The defense as presented by the answer admitted the signature to the note. La. Dig., verbo, Bills and Notes, Vol. 1, p. 987, and authorities there cited.

No special defense was pleaded and no evidence offered by defendant, the testimony of plaintiff alone being heard.

For the reasons .assigned the judgment appealed from is affirmed.


text:
    No. 11,573
    Orleans
    TIMES-PICAYUNE PUB. CO v. HARANG
    (February 11, 1929. Opinion and Decree.)
    Frymire and Ramos, of New; Orleans, attorneys for plaintiff, appellee.
    Roger Meunier, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $182.00, the contract price of certain advertising, which appeared in the columns of a newspaper published by plaintiff. There was judgment for plaintiff and defendant has appealed.

The contract is dated October 4, 1926, and provides for the insertion of an advertisement of defendant’s business every Sunday for twenty-six weeks, beginning March 1, 1927, on plaintiff’s “Builders Digest Page.” It is signed by defendant and by an advertising solicitor of plaintiff, A. G. Kirkland. In the left hand margin there appears the following:

“New Orleans, February 10, 1927.
“This contract approved and accepted for THE TIMES-PICAYUNE PUBLISHING CO.
“By (Signed) John F. Tims, Jr., G “Business Manager.”

This marginal addenda, like the contract itself, is, except for a few words' in writing, such as the date and signature, entirely in print.

Defendant’s contention is that since plaintiff signed the marginal acceptance February 10, 1927, and the instrument signed by himself and plaintiff’s agent, Kirkland, was dated October 4, 1926, or more than four months previous, there was no contract, because of the unreasonable delay in the acceptance of what he refers to as his proposal of October 4, 1926. He cites:

C. C. 1800:

“The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no' contract.”

C. C. 1801:

“The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.”

C. C. 1802:

“He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms which evince a design to give the other party the right of concluding the contract by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow.”

There is nothing in the body of the agreement which suggests the necessity of the signature of plaintiff’s business manager, or infers that Kirkland, who represented plaintiff and signed the instrument, was without authority to act for plaintiff. The marginal inscription perhaps conveys such implication. Conceding, however, that the “contract” (it will be observed that even in the margin it is referred to “this contract”) 'is incomplete until countersigned by the business manager, was the delay, in affixing his signature, unreasonable?

It will ■ be recalled that though plaintiff signed the instrument October 4, 1926, the advertising was to begin March 1, 1927, about five months thereafter. In accepting the contract February 10th, nearly^one month before the first advertisement was to appear, was there not, under £he very terms of the codal article cited (1802), an assent “given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow?” The answer must be in the affirmative.

Moreover, there whs no reason for plaintiff to refuse the business which it had solicited. Defendant had on former occasions placed advertising with the plaintiff for insertion in its “Business Digest Page” and its account had been satisfactorily settled. It would appear that defendant’s contract, with others of a similar character, were accumulated, and as the time approached for their execution they were accepted in a formal way.

Defendant says his business, (manufacturing and selling awnings and window shades), was essentially a spring and summer business, and it was important for him to have prompt information of the acceptance of this advertising, and that, failing to get such notice, he contracted for advertising space in other publications. But, he does not claim to have made any inquiry about this contract, nor to have urged its definite consideration before its acceptance by plaintiff, as would appear the natural thing to do under the circumstances. As far as his business was concerned, he had fixed the time for the advertisement, presumably most advantageous for his purpose, and there is no evidence to the effect that February 10th was too late to secure other means of advertising to begin March 1st.

For the reasons assigned the judgment appealed from is affirmed.


author: WESTERÍTELD, J.

text:
    Nos. 10,449 and 10,642
    Orleans
    (Consolidated)
    STATE OF LOUISIANA v. THE CREDIT CLEARING HOUSE STATE OF LOUISIANA v. NEW ORLEANS CREDIT MEN’S ASSN.
    (January 21, 1929. Opinion and Decree.)

      E. M. Heath, of New Orleans, attorney for plaintiff, appellant.
    St. Clair Adams and Jos. Dinkelspiel, of New Orleañs, attorneys for defendant, appellee.
   WESTERÍTELD, J.

These cases were consolidated. for convenience of disposition, since they involve similar facts and are controlled by the same principles of law.

The facts in the suit against the Credit Clearing House are typical of both cases; there the defendant was sued for additional license for the year 1923, under Section 13 of Act 233 of 1920, and. under Section 12 of Act 205 of 1924, for the year 1925. Both statutes contain provisions, which, so far as they affect this case, are identical. We quote from the Act of 1924.

“That for every omnibus, regular coach, herdic business, collecting agency or agent for the collection of moneys, accounts, notes, etc., and for every business of transporting money, merchandise or other articles by express or transfer, or operating one or more towboats or tugboats, or keeping a warehouse or storage room or landing where goods and merchandise rve received and delivered, the license shall be based on the gross annual receipts of said business, and shall be fixed and graded, as follows, to-wit: * *

Without going into too much detail, we will say, that, if defendants are liable at all, they are responsible for the full amount sued for. Their liability depends upon the meaning of the phrase “gross annual receipts” as used in the quoted section.

Both defendants are collecting agencies. The State contends that the licenses must be calculated upon the total sum collected by defendants, including their customers’ money, while the defense insists that only the gross commission or earnings can be taxed under the statute. It can be readily seen that there is considerable difference in the result to be obtained by these two methods, in the case of the Credit Clearing House, for example, more than $900.00 in one year’s license tax.

The learned judge, a quo, in deciding the case in favor of the defendant tax payer, was much impressed with the equity of defendant’s position. We quote from his reasons for judgment:

“Throughout the act it, is seen that charges are fixed on what the license debtor owns or receives for himself, his premiums, the price of his goods, and the like, and on his capital. To impose a tax on this defendant on moneys which do not belong to it, which after deduction of its commission it must at once deliver to its clients, would make a distinction between collecting agencies and other license tax payers which is wholly arbitrary and capricious. ■ The thought that the legislature intended such partiality and injustice is revolting.”
“It seems to the court that the ‘receipts’ to which Section 12 of Act 205 of 1924, under which this rule is brought, refers, included only such funds as the defendant receives for its own account. Under that construction of the law the defendant has paid all the license that it owes, and the rule should be discharged.”

Defendants strenuously deny that the Act will bear the interpretation, put upon it by the State and invoke the doctrine of contemporaneous construction, supporting its contention, in this regard, with letters from the Supervisor of Public Accounts and the City Attorney of New Orleans, cit-ting State vs. Comptoir National D’Escompte de Paris, 51 Ann. 1272, as authority for the admissibility of the letters, which were objected to by opposing counsel.

In their able brief and in argument, counsel for the State direct our attention to the fact, that courts have no concern with the wisdom or severity of a statute once its meaning is determined.

Lewis’ Southerland Statu. Const. 2nd Ed. Yol. 2, p. 697:

“The wisdom of a statute is not a judicial question nor can the courts correct what they may deem excesses or omissions in legislation, or relieve against occasionally harsh operation of statutory provisions without danger of doing more mischief than good.”

It is insisted that the meaning of the law is plain; that the adjective “gross” as applied to receipts, means all receipts, not only receipts which remain in the hands of defendant, as commissions, citing Century Dictionary, definition of the word “gross.”

“Gross—Whole; entire; total, specifically without deduction as for charged or waste material; without allowance for tare and tret; opposed to net; as, the gross sum or amount; gross profit, income or weight.”

To deduct the sums coming to the customers of defendant, before computing the license tax, it is argued, would be to substitute the words “gross profit” or “gross commissions,” for the words of the statute “gross receipts.”

“When the language of an act is plain and direct, the court will not read into it a word which the law making authority did not see proper to insert.”

International Text Book Co. vs. Fitzpatrick, 133 La. 102, 62 So. 490.

We do not altogether share the indignation of our learned brother below, who considers the construction of the law, contended for by plaintiff revolting. If the Legislature should see fit "to measure the license tax to be paid by collection agencies by the gross annual amount of collections, and the tax, as thus measured, was not disproportionate to other taxes, as levied by the Act, on other occupations, which counsel insists the Legislature has done in this instance, we would not consider it extraordinary, but simply as a method of computing the tax, which the Legislature, in its wisdom and discretion saw fit to adopt. Some such method obtains, with reference to wholesale dealers who are required to pay a tax measured by gross annual sales, which represent the value of the merchandise sold, as well as the gross profits, or gross earnings. In fact, the cost of the merchandise sold, must compose by far the greater part of the volume of the proceeds of the sales.

It is obvious that there is a marked difference between a tax measured upon gross receipts and one measured upon gross commissions, or gross profits.

In the case of U. S. Glue Co. vs. Town of Oak Creek, 217 U. S. 321, the Court, in considering the effect upon interstate commerce, of a tax measured by net receipts or gross profits, said:

“The difference in effect between a tax measured by gross receipts and one measured by net income, recognized by our decisions, is manifest and substantial and it affords a convenient and workable basis of distinction between a direct and immediate burden upon the business affected and a charge that is only indirect and incidental. A tax upon gross receipts affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. Conceivably it may be sufficient to make the difference between the profit and loss, or to so diminish the profit as to impede or discourage the conduct of the commerce. A tax upon the net profits has not the same deterrent effect, since it does not arise at all unless a gain is shown over and above expenses and losses, and the tax cannot be heavy unless the profits are large.”

However that may be, we do not feel at liberty to consider the meaning of the phrase “gross annual receipts” as an original proposition, since our Supreme Court has construed the phrase in a case, which we think, sufficiently analogous to the case at bar, to be controlling here. We refer to Hughes, Sheriff and Tax Collector, vs. Commercial Security Co., 163 La. 44, 111 So. 490, where the Court, in discussing the tax due by the defendant, under the omnibus clause of the license law said:

“The case depends upon the meaning of the term ‘gross annual receipts’ used as a basis for classifying or grading the license tax * * *. The question is whether ‘gross annual receipts’ means gross annual earnings of interest and discount or gross annual proceeds of all stocks, bonds and notes gold and resold by the Company.”

The conclusion reached by the Court was that the phrase in question as applied to the defendant's business meant “gross annual earnings,, or revenues from the business.”

It is true, as counsel points out, that the Court was dealing with the omnibus clause of the license act, which follows the Twenty-fifth Section of Act 205 of 1924, which reads as follows:

“Any other business, not provided for in this Act, and not otherwise provided for by separate laws, except manufacturing shall be graded the same as above set forth and shall be licensed as fixed in this Section.”

In the preceding section the enumerated occupations, though required to pay on gross annual receipts, are in effect taxed upon their gross annual earnings, because it happens that their gross receipts and their gross annual earinings are the same, but this is a distinction without a difference, and we cannot follow counsel in the refinement of argument indulged in, in the effort to differentiate that case from the instant cases. Wq believe that the principle in the Hughes case is controlling here, consequently the judgments appealed from in both cases are affirmed.


text:
    No. 10,665
    Orleans
    VIGUERIE v. MATHES
    (February 25, 1929. Opinion and Decree.)

      E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for plaintiff, appellee.
    Irving R. Saal, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a real estate broker for a commission in the sum of $916.99. The defendant denied liability and reconvened, asking judgment for $128.20. There was judgment for plaintiff on the main demand, and for the defendant in reconvention, both as prayed for. The defendant, Mathes, has appealed, and the plaintiff Viguerie has answered the appeal, seeking to have the judgment in reconvention amended by reducing the amount allowed.

Both plaintiff and defendant are réal estate agents, and at the time when the transaction, out of which this suit arose, occurred, the defendant Mathes was employed in the office .of the plaintiff Viguerie. Mathes owned a certain piece of property on St. Charles Avenue, which he desired to sell and through Mr. Viguerie an offer was obtained from a Mr. Hugh Ritchie, under date of July 19, 1923, by the terms of which Ritchie agreed to purchase the property for $30,566.64, cash, the sale to be consummated within forty-five days. Mathes accepted this offer and Viguerie accepted Ritchie’s note for $3,000.00 in lieu of a cash deposit. The property was not conveyed to Ritchie until December 11, 1923, the consideration then being $31,175.00, of which $11,175.00, maturing ninety days from date and secured by a second mortgage on the property conveyed, the first mortgage being held by a homestead company, which had loaned Ritchie $20,000.00 in order to make the cash payment, as well as by certain junior mortgages on other property owned by Ritchie.

It is defendant’s contention that the sale finally consummated, though made to the party introduced by plaintiff, was a separate and distinct transaction, upon different terms and consummated after the abandonment of the original agreement to buy and sell, of which plaintiff had been, the procuring cause.

The case is said to be controlled by the rule announced in Newman vs. American Liberty Bank & Trust Company, 163 La. 817, 112 So. 732, to the effect that:

“Broker who brought together representatives of banks in negotiations for merger held not the efficient or procuring cause of final merger and so not entitled to compensation for services; one of the banks having finally and decisively rejected the proposition and there having been no renewal of negotiations with the broker by such bank.”

And in Leo Fellman vs. Ecuyer et al., 2 La. App. 398, where this Court held:

“A real estate agent is not entitled to a commission upon a lease confected by an owner dealing directly with the lessee, though the lessee was originally solicited by the agent and introduced by the agent to the owner, where it appears that the owner did not interfere with the agent in his effort to consummate the lease, and the agent voluntarily abandoned negotiations and left the city on his vacation.”

See also Wittenberg vs. McGrath, 3 La. 244; Bullis & Thomas vs. Calvert, 162 La. 378, 110 So. 621; Freeman vs. Torre, 157 La. 1093, 103 So. 334, and Lewis vs. Manson, 3 La. 817.

There can be no doubt that the law is as stated by counsel and as expounded in the authorities cited.

The general rule is that in order for an agent to recover his commission he must obtain a purchaser, able and willing to execute the terms of his agreement, and that an owner has a right to limit the time in which the transaction is to be consummated, and to terminate the broker’s authority at the expiration of the time limit.

It is also true that “a broker who has failed to effect a sale within the time and upon the terms fixed, is not entitled to a commission upon the sale made after-wards by the owner to the purchaser originally procured by the broker, when the purchaser had abandoned all idea of purchasing from the broker and the sale was the result of new negotiations between the owner and purchaser or persons representing them.” McWilliams vs. Soule, No. 8455, Orleans Appeal.

On the other hand it is equally well settled that an owner cannot avail himself of the services of a broker, who has been the procuring cause of an agreement to purchase his property, by continuing the negotiations beyond the time allowed the broker and finally consummating the sale upon somewhat different terms than those mentioned in the original offer obtained by the broker, without compensating the broker. In Gottschalf vs. Jennings, I La. Ann. 5, it was held:

“After he (the plaintiff) had thus, rendered services which eventually enured to the advantage of the defendants they could not deprive him of all compensation by withdrawing the plan from his hands, discharging him, and consummating the negotiations through other agents.”

In Harvey vs. Winters, 1 La. App. 383, this Court held:

“In order to earn his commission a real estate agent, as a rule must • procure a purchaser within the time fixed in the contract. But if the owner continues the negotiations with the prospective buyer uninterruptedly after the expiration of the time fixed, and within a few days thereafter, sells the property to the purchaser procured by the agent, he will owe the agent his Commission.”

It is true that in this case the sale was consummated within a few days but the principle is the same, since the determining factor is the finality of the unsuccessful effort of the broker to perform his undertaking.

See also Walsh vs Grant, — Mass. —, 152 N. E. 884, 47 A. L. R. 855 (Editor’s note at bottom of page).

The question for consideration here is whether the original contract for the purchase of defendant’s property had been abandoned as defendant contends or whether it had only been amended as a result of negotiations between the owner and the purchaser, continuing beyond the forty-five day period mentioned in the contract.

Ritchie, the purchaser obtained by plaintiff, according to his admission, was unable to pay for the property, upon the terms agreed upon, that is to say, in cash. This fact is ¡pointed to, as establishing the failure of the original agreement by which Ritchie undertook to buy the property. Viguerie’s efforts to sell the property, it is claimed, proved abortive. The defendant Mathes, testifying in his own behalf, was not convincing. He was evasive, and in some instances contradictory. His evidence was marked by the apparent absence of candor, which at frequent intervals caused the trial judge to interfere in an effort to clarify his hesitant and confusing testimony.

Three witnesses testified that Mathes was present when the note for $3,000.00 was signed by Ritchie, but Mathes, when reminded of this evidence and asked if he was present, replied that he did not believe he was there and to the best of his knowledge he was not present when the note was signed. Neither court nor counsel could succeed in getting an intelligent explanation of the reason for the difference between the price mentioned in the original agreement procured by plaintiff and that ultimately mentioned as consideration in the act of sale whereby the property was conveyed.

It was only with the assistance of his counsel, who testified in the case that the court was ultimately informed of the details of the transaction. Mr. Saal, defendant’s counsel, explained that Mathes came to' him when Ritchie had failed to take the property, and that after a series of negotiations with Ritchie he was able to reach an agreement whereby the cash payment was reduced to $20,000.00, and there was added to the original amount offered by Ritchie $30,566.64, the sum f $500.00 as a bonus to cover Mr. Saal’s fee, and an amount equal to the interest on the original purchase price, from the time of the default to the time the act of sale,was passed. In other words the final consideration was equal to the original sum offered by Ritchie, plus $500.00, attorneys’ fees, and plus interest on the entire amount, a total of $608.56, more than the price Ritchie originally agreed to pay for the property.

It is insisted that these changes in the original agreement to buy and sell amounted to the confection of a new agreement which was entered into only after the collapse of the original contract of which plaintiff was the procuring cause. The terms are different, it is said, and the price is different. There was only $20,-C00.00 paid in cash, the argument ¡proceeds, whereas in the original offer the entire consideration was to be cash. The balance of the purchase price was secured by a second mortgage on' the property conveyed, as well as by junior mortgages, on other property owned by Ritchie,' a provision not present in the original agreement. The price was $608.36 in excess of the offered ¡price. No commission is due Viguerie, since he had nothing to do with the final negotiations leading up to the act of sale.

But plaintiff was not advised that defendant considered the original agreement at an end, and, he was allowed to retain Ritchie’s note for $3,000.00 until the act of sale was ultimately passed. An employee of plaintiff’s had, at defendant’s x’equest, appraised the properties, upon which the junior mortgages were to be given, with a view of determining the equity of the purchaser, and both plaintiff and his employee testified that he, defendant Mathes, acknowledged his obligation to Viguerie for the commission and asked for time to pay it. There was no break in the negotiations between Mathes and Ritchie. Ritchie testified that he was not aware of any and Mathes’ conduct did not indicate intentional interruption. It is true that the negotiations were prolonged for several months while an effort to modify the terms in a manner consistent with Ritchie’s financial capacity was being made. But, when finally agreed upon the original offer of Ritchie was the basis of the sale, with interest and attorneys’ fees added. If the sale was a new transaction, why hold on to Ritchie’s note for the deposit, and why adopt the original offer as a basis of the final consideration, and why tell Viguerie that his commission would be paid when the second mortgage was paid? Mathes denies that he made this promise, but, as we have said, he is not convincing.

Under the circumstances we are of the opinion that the plaintiff Viguerie was the procuring' cause of the sale and is entitled to his commission. The fact that there was some difference between the original offer procured by plaintiff, and that afterwards accepted by the defendant, is immaterial since the basis of the final transaction, by which this property was sold, was the original offer made by Ritchie and procured by plaintiff.

Concerning the reconventional demand and the criticism which counsel makes of the effort to amend the judgment, in this respect, without a formal appeal having been prosecuted by the plaintiff, it is sufficient to say, that we believe the judgment to be correct, and there is, therefore, no necessity of considering the proper method of amending it.

Por the reasons assigned the judgment appealed from is affirmed.


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    No. 3414
    Second Circuit
    FRAZIER v. ROBINSON
    (March 12, 1929. Opinion and Decree.)

      Parsons and Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Thigpen, Herold, Lee and Cousin, of Shreveport, attorneys for defendant appellant.
   ODOM, J.

We find in the record the written opinion of the Judge of the District Court which sets forth concisely the pleadings and the issues involved, an elaborate discussion of the facts, which opinion is in full as follows:

OPINION OF THE DISTRICT COURT

“Plaintiff alleges that on or about November 10, 1926, the defendant employed him to obtain an oil and gas lease from one Johniken, covering the NW54 of the NWS of Section 20, Township 10, Range 12, in Sabine Parish; authorizing him to pay not exceeding $5.00 per acre for the forty, and as compensation for his services, agreed to carry him, Frazier, for a one-half interest. That is, pay him one-half of the net proceeds of the lease.
“It is further alleged that on November 11th, plaintiff purchased the lease for $135.00 and delivered it to the defendant, who repaid the cost to him thereof.
“It is alleged that the defendant sold the lease for $3,000.00 plus an overriding royalty of one-twenty-fourth of the oil produced from the lease. He prays for judgment for $1432.50, being one-half of the sale price less the alleged cost price, and for one-half of the one-twenty-fourth royalty.
“The defendant admits employing plaintiff for the purchase mentioned, denying authority to pay as alleged, and generally denying plaintiff’s allegations, except it is admitted that the lease was delivered to him and that he sold same for the consideration alleged. By an amended answer the defendant pleaded in the alternative that he had settled and adjusted plaintiff’s demands on or about May 21, 1927, by delivering to him an assignment for one-half of the royalty reserved in the sale of the lease.
“As is stated in plaintiff’s brief, the admissions and testimony of the parties has resolved the issues of the case to the following:
“(1) Did plaintiff exceed his authority by paying cash for the Johniken lease, or had the defendant authorized him to pay cash for the same? Did defendant only employ plaintiff to secure a ‘free lease’ from Mr. Johniken?
“(2) Did plaintiff thereafter agree that he would accept one-third of the proceeds ' of the lease as his portion thereof, instead of one-half thereof?
“(3) Did plaintiff on May 21, 1927, accept an adjustment and settlement in compromise of his claims, by accepting a conveyance of one-half of the one-twenty-fourth royalty reserved in the sale of the lease?
“Defendant’s counsel finds no fault with the statement of the first two issues above presented, but states the third issue in a different way; namely, Did plaintiff on May 21, 1927, accept a conveyance of one-half of the one-twenty-fourth royalty reserved in the sale of the Johniken lease, in full settlement of his interest in the net proceeds derived from the sale of said lease?
“Let’s take up the issues presented in the order above stated.
First:
“It appears that the plaintiff until about October 1, 1926, had worked for Mr. Fair, who was an associate and partner of the defendant, in getting up blocks of acreage in De Soto and Sabine Parishes. This employment appears to have terminated about October 1, 1926; hut was renewed from January 1, 1927, to May 21, 1927, when plaintiff was employed to assist in curative work on titles to the acreage in the Sabine block.
“About the first of November, 1928, while plaintiff was unemployed and during the period when Mr. Fair was so seriously ill and there was doubt whether he would recover, the defendant Robinson wrote plaintiff requesting him to come to his office; and on or about November 10th, plaintiff did call to see him in his office in Shreveport—the plaintiff being a resident of Mansfield and the defendant a resident of Shreveport.
“What the defendant wished to see plaintiff about was with reference to securing the Johniken lease, which gives rise to this lawsuit. The plaintiff and the defendant do not agree as to what took place at this interview, but the Court is inclined to the belief that the plaintiff’s ’•ecollection of what took place at the interview is correct. Plaintiff testified that previous efforts to obtain the 20-acre free lease from Mr. Johniken had failed, but that Mr. Johniken had promised to execute a lease when a well was begun on the block. He further testified that defendant told him to try to get the free lease, but also to get a lease on the en--e forty if he had to pay for it. He states that the defendant gave him a limit of $5.00 per acre to pay for the lease; that he was unable to obtain the free twenty; and that $135.00 was the least amount for, which he could obtain the forty acres. Accordingly, plaintiff paid the $135.00 for the forty.
“The defendant contends that he merely authorized plaintiff to attempt to secure the free twenty acres, denying that he authorized plaintiff to pay any cash for the lease; that plaintiff exceeded his authority when he paid for the lease.
“However, as the Court views the matter, it makes little difference whether the plaintiff was expected to get the lease free or to pay for it. He did 'pay for it and. the defendant reimbursed him, and without stipulating for any change in the agreement that defendant was to carry him for a one-half interest in the lease. Plaintiff testified in this connection that when he handed the lease to Mr. Robinson, Mr. Robinson said something about his having paid too much, that he then called attention to the fact that the lease covered forty acres instead of twenty for which Mr. Robinson was entirely satisfied.
“Miss Davies, unintentionally, we think, corroborates the plaintiff’s contention that he was authorized to pay for the lease by the statement made on direct examination that when Mr. Frazier came into the office Mr. Robinson, the defendant, took the lease and asked him how much he had paid for it. (EV. page 45.) If the defendant had not authorized the plaintiff to pay for the lease why should he ask him the first thing how much ne had paid for it.
“The defendant, Mr. Robinson, testified that at some later date he told Mr. Frazier that because his partner, Mr. Fair, had gotten well he thought it would be right that he, Frazier, should only share one-third of the Johniken lease.
“Mr. Robinson did not fix the time or place of any such statement, nor does he say expressly that Mr. Frazier acceded the.reto. He doesn’t know whether Mr. Fair was present at the conversation or not, and Mr. Fair when questioned could not state that he had heard any statement .made by or in the presence of the plaintiff. Mr. Fair seems merely to infer that there was such an understanding.
“In the Court’s opinion, up to May 21st the plaintiff had not agreed to reduce his interest from one-half to one-third. However, as already indicated above, even if the plaintiff did exceed his authority, yet his action was ratified and the agreement continued when thq defendant received the lease without stipulation for a change of the previous agreement that the defendant was to carry him for a one-half interest in the same.
Second:
“As already above stated, the Court is convinced that the original agreement was that the plaintiff should be carried for a one-half interest, and that Mr. Robinson’s testimony that there wa.s an agreement to reduce same from one-half to one-third is not supported by any corroborated circumstances. Moreover, the same fails to carry conviction in the Court’s mind that Mr. Robinson fails to testify when any such agreement was made, and where it was made, and fails to give any of the substance of the agreement had at the time. The Court can easily understand why Mr. Robinson might feel obligated to carry Mr. Fair for an interest in the lease, but the Court sees no reason why any of the burden of carrying Mr. Fair for an interest in the lease should be passed on to Mr. Frazier who was under no such obligation to Mr. Fair as was his partner Mr. Robinson.
Third:
“Relative to the issue as to the settlement on May 21, 1927, the plaintiff objected to pav’ol evidence to show a compromise, and further that the written evidence offered was insufficient because it had never been signed by the plaintiff and accepted by him. The Court was inclined at the time, and is now of the opinion that this testimony should have been excluded, but same was admitted, ri uepisuoo him ;rnoo sir pun
“C. C. art. 3021 provides:
“‘This contract (of compromise) must be reduced to writing.’
“The alleged statement in this case was reduced to writing, and a place was provided on it for the signature of the plaintiff but same was never signed by him.
“As to what took place on May 21st, there is not much difference in the testimony of the witnesses. On that occasion the defendant made a settlement with Mr. Frazier for his salary and expenses covering the period since January. There was a discussion of the Johniken lease. In this discussion Mr. Robinson called the plaintiff’s attention to the fact that Mr. Fair had gotten well and should participate in the lease. Mr. Robinson thought it would be fair for each of them to have a one-third interest in the lease. Mr. Frazier testified that Mr. Robinson stated that they had been out considerable expense on the trip to California by Mr. Fair, and attorney’s fees, etc., but that Mr. Robinson wanted to see him, plaintiff, realize some cash out of the matter, and therefore would pay him $500.00 in cash and give him one-half of the royalty. Mr. Frazier was willing to accept $500.00 and one-half interest in the royalty, but states that when the assignment of the royalty was tendered to him he asked for his check for $500.00, and being informed that he had been offered an option of $500.00 or thq royalty, said to Robinson, ‘Why don’t you keep it all.’ Mr. Frazier says that Robinson then took the assignment and that he and Mr. Fair turned to a discussion of their matter, which also ended in a controversy.
“Now, as against plaintiff’s testimony as to what occurred on May 21st, the defendant, Mr. Fair and Miss Davies all testified that the plaintiff was offered his option of $500.00 or the royalty, and that he accepted the royalty, and that the defendant later mailed to plaintiff the assignment which is in the record.
“May 21st fell on Saturday, and the discussion above referred to took place in Mr. Robinson’s office on Saturday afternoon. The explanation made by the defendant for failure to deliver the assignment to plaintiff on the Saturday afternoon in question is that Judge Clifton Davis who usually acted for them as notary, and whose office was across the hall from theirs, was not in his office at the time, and therefore the assignment was returned to be signed by a notary. They testified that this was done later and on the following Monday the assignment was mailed' to Mr. Frazier.
“On receipt of the assignment, Mr. Frazier took the same to hie attorney who called Mr. Robinson on the phone, and also wrote him that Mr. Frazier would not accept the assignment as full payment of his claim.
"The Court listened attentively to the testimony in this case, and has since refreshed its memory hy reading the testimony of all the witnesses. Although in number the defendant’s witnesses preponderate as to what took place in Mr. Robinson’s office on May 21st, the Court is not convinced that Mr. Frazier ever did accept the settlement offered him. The Court is of the opinion that by his failure to emphatically repudiate the offer made him, Mr. Frazier perhaps left the defendant, Mr. Fair and Miss Davies under the impression that he would accept the assignment of one-forty-eighth royalty in settlement of his interest in the lease.
“It is undoubtedly true that Mr. Frazier failed to enter into a heated controversy with Mr. Robinson, or for that matter, any controversy at all, but we do believe that when the assignment was tendered Mr. Frazier that he quietly passed it back to Mr. Robins on as he states he did, and said to him, ‘Why don’t you keep it all,’ and that that closed the interview so far as that part of it was concerned. We think it is even probable that Mr. Robinson still thought when he mailed the assignment to Mr. Frazier that Mr. Frazier would accept the same.
“We gather from the testimony in the case that Mr. Frazier is not a man of large means, from which it would follow that his one-half interest in the proceeds of the sale of the lease was a matter of undoubted importance to him, and the Court is not willing to believe that Mr. Frazier would have let himself be talked into accepting a one-third interest instead of one-half, as he was entitled to on thé occasion in question. Jt seems to the Court so utterly unreasonable, and so contrary to human nature, that Mr. Frazier would donate somewhere between a thousand and fifteen hundred dollars to his employers that we are utterly unable to believe that ho did so. Mr. Frazier says that he did not agree to take thé one-forty-eighth royalty in full settlement of his claim, and the Court believes him, although, as stated before, the Court is Willing to believe that Mr. Robinson, Mr. Fair and Miss Davies gained the impression from Mr. Frazier’s mild manner during the interview that he would accept the assignment in full settlement of his claim.
“We will discuss briefly now the reasons given by Mr. Robinson and his partner to Mr. Frazier as to why he should accept the one-forty-eighth royalty and give up his one-half interest in the $3000 for which the lease was sold to the Magnolia Company. It seems that the Johniken 40 acres, together with four other 40-acre leases, were affected by a common defect in title, requiring a quit-claim from the Davis heirs; that the Arkansas Fuel Company held a lease on three of the 40’s, and the Phillips Petroleum Company held a lease on one 40; that Mr. Robinson and Mr. Fair undertook steps to cure the title to all five 40’s with the understanding that the expense would be proportioned to each party. It would appear that a Mr. Welborn also owned some lands affected by the same defect.
“Mr. Fair and Mr. Craig, a Mansfield attorney, made a trip to Arizona and California to obtain a quit-claim from the Davis heirs.
“Mr. Robinson rendered to the Arkansas Fuel Company and the Phillips Petroleum Company a statement showing, a total expense account of above $3100, and they reimbursed him approximately $2500 as their portion of the expense. Included in this statement on which he collected as above stated from the Arkansas and Phillips Companies, were the following amounts:
Paid to Mrs. White, et al.........................$1385
Paid Mr. Craig’s expenses____________________ 250
Paid Mr. Craig’s services_________________________ 250
Paid Mr. Fair’s expenses________________________ 510
Paid Mr. Fair’s salary............................ 750
$3145
“The testimony shows that the $1385, although it had been advanced by Mr. Fair, was returned by Mr. Welborn, the landowner. So far as the plaintiff is concerned, this item should not have been charged. It was also admitted that the item of $250.00 for Mr. Craig’s expenses was also returned. Mr. Robinson appears to have represented to Mr. Frazier that the expense chargeable against the Johniken lease amounted to something like $1150.00.
“In view of Mr. Robinson’s admissions, the legitimate deductions for expenses for curing titles to the lease could not have amounted to anything like $1100, and, therefore, even if it be conceded that Mr. Frazier agreed to a compromise when induced by untrue statements, such compromise should be disregarded. See C. C. Art. 1824, 1827, 3079. Also Packard v. Ober, 26 La. Ann. 424, and Three Rivers Oil Company v. Laurence, 153 La. 224, 95 So. 652.
“The defendant also argued to plaintiff that the title is still imperfect and that same was accepted by the Magnolia Company only because he and Mr. Fair warranted the title. The answer to this is that Mr. Frazier never agreed and was never asked to. agree, when the original contract was entered into, to warrant the' title himself.
“Under the terms of Articles 366 and 367 of the Code of Practice, it is particularly provided that pleas of compensation, or set-offs, must he specially pleaded. The defendant has failed to plead any set-offs in this case, nevertheless, the Court feels that there are certain charges that should be deducted from the amount awarded the plaintiff.
“There should be a deduction of $2.50 for recording; $67.00 for abstract, and $10.00 for filing charges of the curative work.
“Mr. Fair went on the witness stand, but did not verify the correctness of his salary and expense account as shown by the statement submitted to the Arkansas and Phillips Companies, and the fact that they settled on the statement rendered them is no proof of its correctness. The statement rendered the Arkansas and Phillips Companies showed Mr. Fair’s expenses as being $510.00, and his salary as being $750.00. On the other hand, it showed Mr. Craig’s expenses as being $250.00 and his services as being 3250.00. The Court will fix Mr. Fair’s expenses and salary at that which appears to have been fixed by the defendant for Mr. Craig, the attorney.
“As there were five 40’s we divid > the $500.00 made up by adding $250.00 as Mr. Fair’s expenses and $250.00 as his salary, in order to ascertain the amount chargeable against the 40 which is in controversy, which would make $100.00, which, in our opinion should be added to the deductible expense of curing the title to the lease.
“The items of deductible expenses as indicated above are as follows:
For abstract .............. $67.00
For filing .......................................... 10.00
For recording ........................................ 2.50
For original purchase price of the lease ________________________________________________________ 135.00
Proportion of Mr. Fair’s salary and expenses chargeable to the Johniken forty _______________________________________ 100.00
$314.50
“Subtracting this from $3000, it leaves $2685.50. The plaintiff is entitled to one-half of this amount, which is $1342.75. For this amount the plaintiff will have judgment.’’

Counsel for defendant in brief say, in substance, that it matters not whether the assignment of the royalty interest he considered as a settlement or as a compromise, the assent of the plaintiff thereto cannot be shown in the. absence of his signature by parol testimony, and that the crux of the matter in dispute is whether or not a settlement was made with plaintiff on May 21, 1927.

The testimony shows that on May 21, 1927, the plaintiff and defendant discussed a settlement of their differences and that there was on that date drawn up a document which, defendant claims, set out in full the agreement and settlement reached, which document was never signed by plaintiff. Whether parol testimony was admissible to show the compromise and settlement entered into is not material for the reason that the Court heard and considered the testimony of all the witnesses as to what transpired between the parties on that date. It is plaintiff’s contention that the instrument did not set forth the agreement had, and it is defendant’s contention that it did. As is shown by the written opinion above copied, the District Judge considered the testimony of all the witnesses and reached the conclusion that plaintiff did not agree to the compromise and settlement which defendant contends was made. Our reading of the record discloses that the District Judge did not manifestly err in his conclusions. He has, with the greatest care and ¡precision, analyzed the testimony, and we think his conclusions are correct.

For the reasons assigned by the District Judge, the judgment appealed from is affirmed, with costs in both courts.


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    No. 3274
    Second Circuit
    JONES v. LONGINO MRS. MURPHY, INTERVENER
    (March 12, 1929. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Rusca and Cunningham, of Natchitoches, attorneys for intervener, appellant.
   ODOM, J.

This is a controversy over the ownership of two mules seized as the property of Harrison Longino under a writ of fieri facias issued in the suit of James W. Jones, Jr., vs. Harrison Longino. When the mules were seized, opponent, Mrs. Murphy, filed with the Sheriff an affidavit setting out that she owned the mules. The Sheriff called upon the seizing creditor for an indemnity bond, which was furnished, and the Sheriff advertised, the mules for sale. Mrs. Murphy then intervened by way of third opposition, claiming ownership of the property, and alleged that she had purchased them from her brother, Harrison Longino, for the price of $150.00, which she had credited on a $200.00 obligation that was due her for money advanced to him to employ counsel to defend him in a criminal prosecution. She alleged that said mules were delivered to her through her brother, Jasper Longino, whom she designated to accept them for her, and, that being unable to use or sell the mules, she had permitted her brother, Harrison Longino, from whom they were purchased, to retain possession of them. She prayed for judgment decreeing her to be the owner of the mules and for a rule on the seizing creditor and the Sheriff to show cause why a restraining order should not be issued prohibiting the sale.

The seizing creditor answered, admitting the seizure of the mules, but denying that Mrs. Murphy, the intervener, is the owner of them and set up that Mrs. Murphy and the seized debtor had entered into a fraudulent collusion and conspiracy to defeat his seizure. On final trial, there was judgment against Mrs. Murphy, denying her application for an injunction and rejecting her demands. From this judgment, she has appealed.

OPINION.

The mules in controversy were seized by the Sheriff while in the possession of the judgment debtor, Harrison Longino. Mrs. Murphy alleged, and, as a witness, testified that at some time in 1926, her brother, Harrison Longino, became indebted unto her in the sum of $200.00, and that, at the time, he owned two mules; and that later on she purchased the mules for the price of $150.00, which amount was credited on said debt.

If it be conceded that there was an agreement between Mrs. Murphy and her brother that she take over the mules, it is perfectly apparent that there was in fact no sale, but a giving in payment.

“The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.” C. C. art. 2655.

The testimony convinces us, as it did the District Judge, that there was an understanding between Mrs. Murphy and her brother to the effect that she. should take the mules at a fixed price which was to be credited on the debt. This being a giving in payment, it was necessary that1' there be actual delivery of the mules to Mrs. Murphy, in order to affect the rights of third parties. .

“The giving in payment differs from the ordinary contract of sale in this, that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery.” C. C. art. 2656.

The essentials of a giving in payment are an existing debt, just valuation and delivery. People’s National Bank vs. Voorhies, 134 La. 303, 64 So. 120; Hughes vs. Mattes et al., 104 La. 218, 28 So. 1006.

Therefore, the material point to be determined in this case is whether there was in fact a delivery of the property to Mrs. Murphy.. On this point, we find, after careful consideration of the testimony, that there was in fact no delivery. Mrs. Murphy testified that she had not at any time had personal possession of said property, but she alleged and testified that the mules were delivered to her brother, Jasper Longino, for her. The testimony on that point is by no means satisfactory. She testified that in the month of December, 1926, shortly after she acquired the mules from her brother, she employed Frank Laurent to carry the mules from where her brother, Harrison Longino, lived to the city of Natchitoches, about twenty miles away, and there deliver them to Jasper Longino. Laurent testified that he did as requested, but stated that be delivered them in the month of December, 1927, —a year later than Mrs. Murphy said she had acquired them. He further stated that when he carried the mules to Natchitoches, he hitched them to a wagon at the rear of Jasper Longino’s residence, and there left them. Laurent further testified that at the time he delivered them, he Jalked with both Jasper Longino and his wife, Mrs. Jessie Longino. Mrs. Longino, called as a witness, testified that she knew nothing of such delivery and, while she at times contradicted herself, we think her testimony is clear that she did not recall seeing the mules or the conversation which Laurent says he had with her and her husband. Jasper Longino was not called to the stand, and no reason is suggested why. As already stated, the mules were seized in the hands of Harrison Longino, and the testimony fails to show how or when they got back into his possession.

Lestan Lemoine, who knew Harrison Longino and was a neighbor to him, testified that if the mules had ever been taken out of the possession of Harrison Longino and carried to Natchitoches, he knew nothing about it. There is also some testimony in the record tending to show that Harrison Longino had made statements to the effect that he always made arrangements to protect his property when seized or about to be seized by his creditors.

The parties have failed to show delivery. We find ih the record the written opinion of the Judge of the lower court in which he reviews the testimony and states his conclusions on the question of the delivery of the animals, which is as follows:

“Both Mrs. Murphy and Longino testify there was a tentative agreement of some kind to farm together during the year 1927. Just how these operations were to be conducted does not seem to have been agreed upon. At any rate, the two mules now in contest were then owned by Longino.
“It is said that Mr. Walter Dunkelman had offered to buy them from Longino, his offer being $150.00. This was communicated to Mrs. Murphy, and, rather than see him sell the mules for this price to another party, she agreed to give Longino the same price, it to go as a credit upon her loan of $200.00, which was acceptable to Longino and the sale made. It is not shown just why Longino should care to sell the mules to other parties, in view of the fact that he was proceeding with his arrangements to farm, either with his sister, Mrs. Murphy, or upon his own responsibility.
“However, there is some corroboration of there having been a sale to Mrs. Murphy, by Mr. Sompayrac, who testified that he discussed buying the mules during the early part of 1927, and was informed that they belonged to Mrs. Murphy and he would have to deal with her. This was at a time unsuspicious and I accept these statements as true. They were not sold to Sompayrac, however, and Harrison Longino continued in possession of the mules and worked them during the year 1927, and was still in possession and working them in the early part of the present year when they were seized.
“Mrs. Murphy testifies that after her brother leased a place for one year, 1927, the surroundings were not satisfactory to her and she declined the idea of farming with him.
“We hold that there was an agreement ■and understanding between Mrs. Murphy and Longino to sell and buy these mules for the price and sum of $150.00. The more serious question is on the question of delivery, since in order to defeat the seizure made there must be shown to have been a delivery to Mrs. Murphy previous to the seizure.
“Mrs. Murphy testifies, and she is corroborated by her brother, Harrison Longino, that she employed one Frank Laurent .to take the mules from the place leased by Harrison Longino in December, 1926, to the town of Natchitoches, and to deliver them to another brother, Jasper Longino, whom she had constituted as her agent to accept delivery of the mules. This, they say, was in December, 1926. Laurent, as a witness, swears he brought the mules to Natchitoches, but that it was in December, 1927. Pressed by counsel for Mrs. Murphy as to whether he could not be mistaken as to the year, he answered he could not, because it was only two or three months ago. It is, of course, immaterial whether this delivery was made in December, 1926, or in December, 1927, for the reason that the mules were not seized until in January or February, 1928. But where there is such a variance upon a matter important and material, must lead one to lose faith and confidence in the asserted or alleged delivery. The plaintiff and her brother testify it was immediately after the sale in December, 1926, this delivery was made. The witness, Laurent, says he brought them in December, 1927. However, if it be conceded Laurent ever brought the mules to Natchitoches for the purpose stated, and that Jasper Longino was authorized to accept them for the plaintiff, there is no evidence that he did so.
“Jasper Longino lived in the town of Natchitoches, and about or attached to his premises and place, there was no lot, corral, barn or any place to put them. If we be not mistaken, Jasper Longino was never sworn to testify to any acceptance or that he ever saw them. Laurent says he tied them to a wagon back of Jasper Longino’s house, and there the matter of delivery ends. The mules are not heard of again until they are found in possession of Harrison Longino. Mrs. Jasper Longino, who lived with her husband, on direct examination said she knew nothing of any mules being brought there by Laurent, though Laurent says he talked with both Jasper Longino and his wife. This lady does say she saw two mules there at some time,—how long they remained there or what disposition was made of them is left to the merest conjecture.
“Believing no delivery was made, it is ordered that there be judgment rejecting the demands of Mrs. Murphy, at her costs, and the injunction sought is disallowed.’’

Finding no error in the judgment appealed from, the same is accordingly affirmed, with costs in both courts.