text:
    No. 3383
    Second Circuit
    SHEVNIN v. GRIMMER ET AL.
    (January 21, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)

      J. M. Shevnin, of Alexandria, attorney for plaintiff, appellant.
    B. T. Dawkins, and W. C. Roberts, of Alexandria, attorneys for defendants, appellees.
   REYNOLDS, J.

Plaintiff, John Shevnin, sued defendants, Mrs. Anne C. Grimmer, for the price of the lease of certain premises, which lease, he alleged, was for the use and benefit of her separate estate, and obtained a writ of provisional seizure as lessor, and had seized certain movable property, which he alleged belonged to her, found upon the leased premises, and, on trial, obtained judgment for the debt sued for and for recognition of the lessor’s privilege on the property provisionally seized.

And thereupon plaintiff took this rule upon the judgment debtor, as mortgagor, and Chas. P. Wagner & Bro., a commercial partnership composed of Charles P. Wagner and John A. Wagner, as mortgagee, and A. V. Hundley, as clerk of the Ninth Judicial District Court of Louisiana in and for the parish of Rapides and ex-officio recorder, to show cause why a certain mortgage granted by Mrs. Anne C. Grimmer to Chas. P. Wagner & Bro. on the property on which the lessor’s privilege bore, dated November 28, 1927, and recorded the same day in Book No. 21 at Polio 531 of the Record of Chattel Mortgages of Rapides parish, should not be decreed null and canceled as an obstacle to the enforcement of his judgment on the property.

The grounds of nullity alleged were:

I. That the law (Act No. 198 of 1918) requires chattel mortgages, if they are to affect third persons, to be by authentic act, and that the act assailed was not authentic because:

(1) It purports to have been passed in the parish of Orleans and before John W. Hawthorn as a notary for that parish, and that he was not a notary for that parish but for the parish of Rapides.

(2) It was passed only before one witness.

(3) No authority is shown for the person who accepted it for the mortgagee to accept it.

I. The mortgagor was a married woman and not separate in property from her husband; the mortgage debt was a community debt; and she was not authorized to grant the mortgage.

Neither Mrs. Grimmer nor the clerk of the district court made any defense.

Chas. P% Wagner & Bro. answered admitting that John W. Hawthorn was not a notary for Orleans parish and was one for Rapides parish, admitted that the act was passed only before one witness, denied that the mortgage debt was a community debt, and alleged that it represented the price of the mortgaged property, which was sold by the mortgagee to her, and that she was authorized to create the debt and grant the mortgage.

On these issues the rule was heard, and there was judgment in favor of the defendants and against the plaintiff, dismissing the rule, and the plaintiff appealed.

OPINION.

Act No. 132 of 1926 provides:

“That a married woman, whether a resident of this state or not, shall be competent to contract debts, purchase, sell and mortgage and to bind and obligate herself personally and with reference to her sepa' rate and paraphernal property; to appear in court and to sue and be sued; to sell, alienate or otherwise dispose (of) and to mortgage and pledge or otherwise encumber her separate and paraphernal property for the benefits of herself, her husband or any other person, and to bind and obligate herself personally or as surety for her husband or any other person.
“That such married women shall exercise the rights granted * * * without the necessity of obtaining the authority of her husband or the judge.”

And article 131 of the Civil Code provides:

“If the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade;, and, in such case, her husband is bound also, if there . exists a community of property between them. She is considered as a public merchant, if she carries on a separate trade, but not if she retails only the merchandise belonging to the commerce carried on by her husband.”

Mrs. Grimmer was engaged in conducting a public bakery, and the mortgaged property was apparatus used by her in and necessary to that business. It was sold by the mortgagee to her for that purpose, and the mortgage debt represents the total price of it.

Plaintiff himself recognized her as a public merchant. The premises were leased for bakery purposes, and the lease stipulated :

“The said lessee hereby warrants that this undertaking is by her alone and individually, and with her own separate and paraphernal funds.”

And his petition on the debt alleges:

“The said Mrs. Grimmer warranting that she was leasing said premises with her own separate and paraphernal funds.”

Mrs. -Grimmer had the right to purchase the property for the benefit of her separate estate and to create the debt represented by its price and to grant the mortgage to secure the payment of the debt.

Plaintiff offered no evidence whatever in support of the allegation that the debt was a community debt.

Moreover, plaintiff, not being a creditor of the community (if there exist one), is without interest to champion the' rights of the community. His rights arise under contract with the wife, and, if the property be not hers, he cannot subject it to the payment of his judgment. Besides, if she could, not validly contract with the mortgagee, neither could she validly contract with plaintiff. Her right to validly contract is the very basis of plaintiff’s rights.

We hold that Mrs. Grimmer had the right to purchase the property and to create the debt represented by its price and to grant the mortgage securing the payment of the price.

We find it unnecessary to consider whether the mortgage was authentic in form, for, if it was not, it was good as a private act.

“An act which is not authentic, through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.” Civil Code, art. 2235.
“A conventional mortgage may be executed by an act under private signature.” Ells vs. Sims, 2 La. Ann. 251.
“Article 2235 of the Civil Code, provides that: ‘An act which is not authentic, through the incompetence or the incapacity of the officer, or through a defect of form, shall avail as a private writing, if it be signed by the parties.’ The mere quoting of this law is a sufficient answer to the objection; as if, for the want of the signature of one of the witnesses to the act, it had not the authenticity required' by law to make it a public act, it was undoubtedly good as one under private signature.” Hood vs. Segrest, 12 Rob. 210.
The act under consideration was signed: “Mrs. Anne C. Grimmer.
“Chas. P. Wagner & Bro. “Per F. T. Brame, Agent.”

Therefore it was signed by the parties.

However, plaintiff insists that F. T. Brame was without authority to accept the act for the mortgagee.

“An absent person has the benefit of a mortgage in his favor executed and recorded by the mortgagor, though not accepted by the mortgagee.”

Millaudon vs. Allard 2 La. 547;

Hill vs. Barlow, 6 Rob. 142;

In re Immanuel Presbyterian Church, 112 La. 348, 36 So. 408.

“A mortgage creditor effectively accepts a mortgage in his favor either by taking the mortgage notes, or by an authentic act. The transfer of a note transfers everything accessory to and securing same.”

Roberts vs. Bauer, 35 La. Ann. 453;

Citizens’ Bank vs. Ferry, 32 La. Ann. 310;

Huber vs. Jennings-Heywood Oil Syndicate, 111 La. 756, 35 So. 889.

The mortgage was duly recorded on the day it was executed, and it only remains to be considered whether it was effective quoad plaintiff, a third person.

He contends that it was not, because not authentic in form. But this alone was not sufficient to render it ineffective as to him. To be so, it was also necessary that he should have been ignorant of its existence.

The chattel mortgage law (Act No. 198 of 1918) provides:

“Sec. 2. * * *
“In order to affect third persons without notice, said, instrument must be passed by Notarial Act. * * * (Italics ours.)

Therefore, unless plaintiff was not aware of its existence the mortgage was as binding on him as on the parties to it.

Plaintiff did not allege and made no attempt to prove want of notice. On the contrary, by his suit to annul it he shows that he knew of it. Besides this, the mortgage was recorded on November 28, 1927, and the registry put him on notice.

Section 4 of the law in question provides:

“That every mortgage shall be a lien on the property mortgaged from the time same is filed for recordation, which filing shall be notice to all parties of the existence of such mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

If plaintiff did not have actual notice of the existence of the mortgage, he must be held to have had constructive notice of it arising from its recordation, and therefore it affected him.

Plaintiff does not claim that his lessor’s privilege primes the lien of the mortgage, and there is no evidence in the record tending to show that it does; and, from the fact that the purpose of the suit was to annul the mortgage rather than to have the lessor’s privilege declared prior in rank to it, we infer that the lien of the mortgage attached before the lessor’s privilege did. Be that as it may, however, none of the reasons alleged by plaintiff for. annulment of the mortgage is good, and the judgment appealed from must be affirmed.

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


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3289
    Second Circuit
    BAKER v. WALL DRILLING CO. ET AL.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    (April 22, 1929. Judgment of Court of Appeal Reversed by Supreme Court on Writ of Certiorari and Review.)

      William C. Boone, of Many, attorney for plaintiff, appellee.
    Thompson and Ferguson, of Leesville, attorneys for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act. The plaintiff, James P. Baker, sued Wall Drilling Company, E. B. Wall Drilling Company, Sloan & Wall Drilling Company, E. B. Wall and R. W. Sloan, and Security Union Insurance Company, to recover judgment for $20.00 a week for four hundred, weeks, beginning June 2, 1927, with legal interest on each installment from its maturity until paid; and for the further sum of $250.00, with legal interest thereon from judicial demand until paid, as and for the cost of an operation to be performed on him for the relief of a hernia.

He alleged that the first three named are one and the same and trade names under which E. B. Wall and R. W. Sloan transacted business as commercial partners, and that the last named was their indemnitor pursuant to section 23 of Act No. 85 of 1926; that the defendants, other than the indemnitor, were engaged in the business of drilling wells for oil and that he was employed by them in that business, and that in the course of his employment on June 2, 1927, he accidentally sustained a traumatic hernia, and that he was earning at the time a wage of $4.50 a day and working seven days in the week.

He further alleged that he had demanded of the defendants, other than the indemnitor, the benefit of an operation to relieve his disability and that it had been refused him.

And he asked for judgment against the defendants, including the indemnitor, for $20.00 a week for four hundred weeks, with the first installment to be decreed due June 2, 1927, with legal interest thereon from the maturity of each installment until paid, and for the further sum of $250.00, with legal interest thereon from judicial demand until paid, as and for- the cost of an operation to relieve his disability.

The defendants denied liability and submitted the case for adjudication on an agreed statement of facts as follows;

“It is agreed that this case be' submitted upon the pleadings, as filed, and upon the following statement of facts:
“1. Defendants admit that the plaintiff was earning, on June 2, 1927, the sum of $4.50 per day of seven days per week.
“2. That plaintiff had no hernia prior to said second day of June, 1927.
“3. That while plaintiff was pulling on a chain tong, in the regular course of his employment with said defendants, other , than the Security Union Insurance Company, on June 2, 1927, about 3 p. m. of said day, he felt a stinging pain in his right groin, and, as soon as. he had completed the work in which he was then engaged, 'he went out and laid down in the shade for 30 or 40 minutes, telling the driller he got hurt and was sick. After he felt the pain, he ceased to pull on the chain tong, but he didn’t go out and lay down until after they had completed the task of going into the hole. He remarked, when he first felt the pain, that ‘that hurt me’. He came back, after remaining in the shade for 30 or 40 minutes, and remained on the job until 5 P. M., when the work ceased. He did not know what the trouble was. The next day he came back to work, and told the driller he had a knot in his side, and was sore there. The driller asked him to stay on the job that day so as not to shut down the job. He stayed on the job the day of June 3, 1927, until 5 P. M. and the driller then took him to Dr. Hines at Clarks, Louisiana, who told him that he had a hernia. The driller was present and heard Dr. Hines tell plaintiff that he had a hernia or rupture. That he first felt the pain while he was pulling or jerking on the chain tongp.
"4. That on June 4, 1927, under the instructions of Mr. E. B. Wall, plaintiff went to see Dr. Gaharan at Olla, Louisiana, who also told plaintiff he had a hernia and recommended an operation as a cure. Plaintiff saw Dr. Gaharan about 9:30 A. M. on June 4, 1927.
"5. That plaintiff will testify that from 3 P. M. on June 2, 1927, for the succeeding 48 hours, plaintiff suffered pain in the inguinal region, and that after he ceased work on June 4, 1927, he has not been able to work on account of said hernia.
"6. That the doctors advised him not to wear a truss as he was going to be operated upon, but he found it necessary to wear one to keep the hernia from descending.
“7. That, until November 3, 1927, defendants refused either to pay compensation or pay the expense of an operation, and that on October 4, 1927, defendants tendered, in their answer, in the event the court should hold that plaintiff is entitled to compensation, either an operation or 28 weeks’ compensation, as more specifically set out in the answer.
"8. That, on November 3, 1927, defendants again tendered an operation to plaintiff, to correct said hernia, at defendants’ expense, or, in the event of his refusal, to pay 2S weeks’ compensation, neither of which plaintiff has accepted.
“9. That, in the event the court holds that defendants are liable to plaintiff, for the hernia which he has, the subject of this suit, defendants now tender to plaintiff, under the provisions of Act No. 85 of 1926, first, an operation, at defendants’ expense, and to pay compensation at the legal rate during the period of disability resulting from the operation; or, second, in the event of plaintiff’s refusal to accept said operation and compensation, to pay plaintiff compensation at the legal rate for a period of 26 weeks, as provided by Act No. 85 of 1926.
"10. Paragraph 26 of plaintiff’s petition is admitted.
“11. It is admitted that the attachment herein sued out was legally and properly issued.
“12. It is further admitted that Dr. Hines and Dr. Gaharan would testify that a shock to the shoulders, resulting from the jerking on a chain, would be communicated to the bowels.
"13. It is further agreed that the case be submitted on briefs to be filed by the 10th of March, 1928, and that the court may decide the same either in chambers or in open court, notifying each party, orders of appeal to be granted in the judgment without the necessity of the formality of applying therefor.”

On these issues the case was tried and there was judgment in favor of the plaintiff and against all of the defendants in solido for $20.00 a week from June 2, 1927, until March 14, 1928, and for the further sum of $20.00 a week for twenty-six additional weeks, from the 14th day of March, 1928, and that defendants pay for an operation on plaintiff, not to exceed $250.00, if the plaintiff is willing to submit to the operation; the payment of the additional twenty-six weeks’ compensation to cease at the expiration of the twenty-six weeks, if the operation is successful, and, if the operation is not successful, the plaintiff is reserved the right to proceed further with the case.

Prom this judgment the defendants appealed.

Plaintiff has answered the appeal and asks that the judgment be amended so as to allow him $20.00 a week for 400 weeks, beginning June 2, 1927, with legal interest on each installment from its maturity until paid, and for the further sum of $250.00, with legal interest th'ereon from judicial demand, as and for the cost of an operation.

OPINION.

On the admitted facts, it is clear that plaintiff accidentally sustained a traumatic hernia while performing duties for and in the course of his employment by the defendants other than the Security Union Insurance Company, and consequently he is entitled to the benefits provided by section 17 of Act No. 85 of 1926.

Plaintiff was and always had been willing to submit to an operation at defendants’ expense, and defendant was and always had been willing to furnish the operation at their own cost and to pay the weekly compensation required by law, if it were adjudged that they were liable therefor.

All that the plaintiff Was entitled to was an operation at the expense of the defendants at a cost of not exceeding $250.00 and to 65 per cent of his wages, or $20.00 a week, during the period of disability prior to and following the operation, not to exceed twenty-six weeks, if death does not result from the hernia or operation.

The judgment appealed from awards more than this and consequently is erroneous.

And quoad the defendant Security Union Insurance Company it is erroneous also for the additional reason that'—

“Under the Employers’ Liability Act, the injured employee, prior to award or judgment or agreement with his employer fixing the amount of compensation, has no right of action against the insurer of his employer.’’

Stouff vs. Travellers Insurance Company, 7 La. App. 13.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and that quoad defendant Security Union Insurance Company plaintiff’s demands be rejected and his suit dismissed at his cost.

It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendants Wall Drilling Company, E, B. Wall Drilling Company, Sloan & Wall Drilling Company, W. W. Sloan and E. B. Wall, in solido, for $20.00 a week for twenty-six weeks, the first installment being decreed due June 2, 1927, with legal interest on each installment from its maturity until paid.

It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendants Wall Drilling Company, E. B. Wall Drilling Company, Sloan & Wall Drilling Company, W. W. Sloan and E. B. Wall in solido for an operation at a cost of not exceeding $250.00, to be furnished by them to plaintiff within thirty days after he shall have signified to them his readiness to submit thereto, and, in default thereof, that plaintiff have judgment against said defendants for the sum of $250.00 with legal interest thereon from this date until paid.

The defendants, other than Security Union Insurance Company, to pay all costs of the District Court; plaintiff to pay the costs of this appeal.


author: MOUTON, J. LECHE, J.

text:
    No. 384
    First Circuit
    PEOPLES BANK & TRUST COMPANY IN LIQUIDATION v. LA. STATE RICE MILLING CO., INC.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    (March 25, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Broussard & Samson, of Abbeville, attorneys for plaintiff, appellant.
    J. E. Kibbe, Jr., of Abbeville, attorney for defendant, appellee.
    LECHE, J., concurs for written reasons.
   MOUTON, J.

Plaintiff brings this suit against defendant on two drafts, one for $333.99 and the other for $1,139.70, with legal interest on both drafts.

The draft for $333.99 was drawn by W. T. Smith, and the other by Ted. T. Riley, the authorized agents of defendant company.

Plaintiff bank, then located in Abbeville, La., was closed by the state bank commissioner on December 15, 1926, between 11, а. m. and 12 o’clock noon.

Tbe defendant had on deposit with plaintiff bank at Abbeville, on the 15th of December, 1926, the sum of $1,453.56.

Both drafts are made payable at sight to the plaintiff bank and are drawn on the defendant corporation and not on plaintiff bank. The draft for $333.99 was drawn December 21, 1926, and the other for $1,130.70 on December 15, 1926, and were both given in payment of rice purchased under contract with plaintiff bank.

The defendant pleads compensation against the drafts up to the amount of its deposit.

Judgment was rendered in favor of the bank on the draft for $333.99, but maintained the plea of compensation for the draft of $1,139.70.

The civil death or insolvency of the bank took place when it was taken charge of by the banking department December 15, 1926, between the hours of 11 and 12 noon, and which had the legal effect of fixing the rights of its creditors as they existed at that time. Thomas vs. Marine Bank & Trust Co., 156 La. 941, 101 So. 315. As hereinabove stated, both, drafts were made payable at sight, and were drawn on the defendant corporation in favor of the plaintiff bank.

An instrument payable at sight matures when presented for payment. R. C. L. vol. б, p. 409; Randolph on Commercial Paper’ (2d Ed.) Sec. 16.

The bank had been closed six days before the note for $333.99 was drawn. It is therefore evident that it could not have been presented for payment to defendant corporation prior to the placing of the bank under the administration of the bank examiner. It is doubtful if the claim for the $333.99 had been liquidated at that time, but. it is certain that it was not then due or demandable.

When the bank was closed, the amount on deposit was due and demandable, but this draft was not, as it had been presented for payment to the defendant corporation, and, though the debts were coexistent, as they w'ere not equally due and demandable, compensation could not take place between them, thus extinguishing the claim on this draft. C. C. 2209; People’s Bank vs. Mississippi & Lafourche Drainage Dist., 141 La. 1009, 76 So. 179.

The lower court, however, maintained the plea of compensation to the note for $1,139.70, to which we will now direct our attention.

As appears from a statement of facts upon which this case is submitted, the plaintiff bank, which was located at Abbeville, operated a branch at Gueydan, La.

It is admitted that the draft for $1,139.70 was delivered to Ralph Montagne, agent of plaintiff bank at Gueydan at 8:30 a. m. December 15, 1926, and that Montagne was authorized by plaintiff bank to accept the draft.

It is admitted that, according to the custom which had existed in the past, on the bank’s receipt of such drafts, they would be presented for payment at the main office in Abbeville of defendant corporation, which took these drafts by checks issued in payment. Such a custom or usage had the force of law between the parties, and impliedly formed a part of the contract between them. C. J. vol. 17, p. 462.

It is shown that, in accordance with this custom, this draft, as well as the other, were presented for payment to the defendant corporation; and further, after the plaintiff bank had been closed. It could hardly have been otherwise, as it was delivered at Gueydan to Mon tagne at 8; 30 a. m., and the plaintiff bank at Abbeville closed its doors not later than the noon hour of the same day. As it was payable at sight, and was drawn on defendant corporation, it therefore matured and became demandable only upon presentation to defendant for payment. That was done after the bank had been closed, was civilly dead or insolvent, and all the rights of its creditors had been fixed. The draft in question was therefore not then mature, due, and demandable, and was not extinguished by compensation by the mere operation of law up to the amount of the deposit defendant had in plaintiff’s bank. C. C. 2209; People’s Bank vs. Mississippi & Lafourche Drainage Dist., 141 La. 1009, 76 So. 179. The judgment maintaining the plea of compensation to the draft for $1,139.70 must be reversed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it maintains the plea of compensation and rejects the demand of plaintiff bank on the draft for $1,139.70, is annulled and reversed; and it is further ordered and decreed that plaintiff have judgment on said draft against defendant corporation for $1,139.70, with legal interest from December 15, 1926, until paid, and that, in other respects, the judgment be affirmed; defendant to pay all costs of court.

LECHE, J.

(concurring). The rule that compensation cannot be pleaded by the debtor of an insolvent corporation in liquidation, or by the debtor of insolvent succession rests upon sound principles of equity. To hold otherwise would be tantamount to giving an unfair preference in favor of the creditor who is also a debtor, over other creditors who are not debtors; thus the creditor who is also a debtor would get the full benefit of his credit, while the creditor who is not a debtor would have to accept in full satisfaction only such part of his claim as the residuum of the assets of the insolvent concern could satisfy. Upon such a principle are based the decisions. in Yale vs. Nolan, 3 La. Ann. 449; Green vs. Davis, 7 Mart. (N. S.) 239, and Brooks vs. Walker, 3 La. Ann. 150.

But in this case there are additional reasons why the plea of compensation cannot be legally urged by the defendant. The accepted rule and custom is that a bank cannot make an assignment of the funds of its depositor without the consent of the depositor or without judicial sanction. It may use temporarily, in the operation of its business, such portion of such funds as is permitted by the banking laws of the country, but cannot convert them to any other purpose without the consent of the depositor. A bank may not buy notes or claims due°by its depositor and charge them on its books against the deposit account of its depositor,' for that would be converting the funds of its depositor for a purpose not sanctioned or consented to by the owner of the funds. This principle is recognized in Morgan vs. Lathrop, 12 La. Ann. 257.

The foregoing principles are also recognized in the recent decision of Thomas vs. Marine Bank & Trust Co., 156 La. 941, 101 So. 315, where all doubt upon the question is set at rest by a well-considered and a well-reasoned opinion by Mr. Justice Thompson.

In my opinion it makes no difference when the drafts were drawn by defendant’s agent against the defendant, whether before or after the People’s Bank & Trust Company had been closed by the banking department of the state. It is sufficient to say that they were not paid, although admittedly due by defendant. The bank had no right or authority to charge them against defendant’s deposit account, without the consent of defendant. If it had so charged them and had not gone into liquidation, the defendant could have ignored and repudiated such a charge made against its account without its knowledge and consent.

The decree in this case is in my opinion absolutely legal and equitable, and. I cheerfully concur therein.


author: MOUTO'N, J.

text:
    No. 382
    First Circuit
    BANK OF BALDWIN v. BROUSSARD (BANTA, GARNISHEE)
    (January 9, 1929. Opinion and Decree.)
    (March 6, 1929. Rehearing Refused.)
    For opinion on rehearing see page 801.

      Borah, Himel, Bloch and Borah, of Franklin, attorneys for plaintiff, appellee.
    Brumby and Bauer, of Franklin, attorneys for defendant, appellant.
   MOUTO'N, J.

This suit was instituted by plaintiff against John R. Broussard on a promissory rent note for $367.50, payable October 1, 1927, with 8 per cent, interest from maturity, and 10 per cent additional for attorney’s fees. The suit was accompanied by a writ of attachment issued against defendant. Garnishment process was also issued with the writ against Philip A. Conrad of Iberia parish.

In answer to the interrogatories propounded to him in the garnishment proceedings, Conrad stated that he had milled for John R. Broussard 169 sacks of rice at his mill in New Iberia, which he held subject to an order of delivery in favor of R. C. Banta of Jeanerette, given to him by John R. Broussard, dated November 2, 1927.

After obtaining the issuance of garnishment process against Conrad in his original demand for a writ of attachment, plaintiff, in a supplemental petition, made R. C. Banta a garnishee, alleging he had reasons to believe that he was in debt to John R. Broussard, or had property or effects in his possession belonging to Broussard. In answer to the interrogatories addressed to him, Banta admitted he haR in his possession a Deering McCormick tractor, a disk, and one harrow belonging to Broussard, and answered “no” as to any other property. Thereupon plaintiff upon proper allegations obtained a rule on Broussard, Banta and Conrad ordering them to show cause why the order for the delivery of the rice to Banta by Broussard should not be declared a simulation, or, in the alternative, annulled as a fraudulent preference in favor of Banta over the other creditor of Broussard, and, if not a simulation or fraudulent preference, why it should not be decreed that the rice had been seized before its delivery by Broussard to Banta. The rule was made absolute by decreeing that the transfer of the rice by Broussard to Banta was a fraudulent preference, and ordering Conrad to deliver it to the sheriff under the seizure.

Broussard made no defense, and judgment by default was rendered against him on the note, perpetuating the attachment. The only appearance made by Conrad was in answer to the interrogatories in which he declared he was holding the rice for Banta under the order of Broussard. Banta is the only appellant.

The first contention of counsel for appellant is that Banta and Conrad, the other garnishee, had no interest in common and could not be joined" as defendants. It is evident from the answer of Conrad to the interrogatories that he was holding the property for Banta, and that ■'e had no interest whatsoever in the case. The only parties in interest were Broussard and Banta, who could well be joined under the charges of simulation, fraudulent preference, and want of delivery of the rice prior to the seizure, which were leveled against them in the petition filed by plaintiff for the issuance of the rule,

In their brief, counsel' for defendant, in referring to plaintiff, say:

"In reality he instituted a revocatory action by supplemental petition against a garnishee, and is attempting to try by supplemental petition as a summing process against two defendants, who were not made defendants in the original .suit.”

This means, if we appreciate the contention correctly, that plaintiff could not attack the transfer of the rice by rule upon the allegations of his petition above referred to, but, for the relief sought, should have proceeded by a revocatory or direct action. Plaintiff, according to that contention, had no right to attack this transfer collaterally under a proceeding of that character. Counsel, in support of this contention, refer to Act 46 of 1886, wherein it is provided that in all cases where personal property is seized and is claimed by a third opponent, the seizing creditor may be allowed in his answer to the third opposition to allege and prove his title fraudulent, and the court shall try and decide the issue thus made. Although Conrad, the other garnishee, had declared that he was holding the rice for Banta, the purpose of Banta in withholding from making any claim to the property by third opposition was' evidently to force plaintiff to institute suit against him by a separate and independent revocatory action. Banta would simply remain quiescent until plaintiff had thus resorted to a new suit for the decision of an issue fully presented herein in the proceeding by rule, and wherein the matter can be equitably, legally and fairly settled. The law abhors such circuity of action, and does not countenance such useless and vain proceedings.

The question here presented was met in the case of First National Bank vs. Lagrone (La. Sup.) 117 So. 741. In that case, under writs of fieri facias, Mrs. Edenborn was made a garnishee. The banks therein undertook to levy upon 250 shares of stock in the Colfax Lumber & Creosoting Company. In answering the interrogatories, Mrs. Edenborn, garnishee, admitted that she held 50 shares of stock which had been issued' in the name of Mrs. Lagrone, wife of the judgment debt- or, Lagrone, and that she- had in her possession 200 shares in the name of J. M. Dowden. The banks, plaintiffs in the case, obtained a rule upon Mrs. Eden-born, garnishee, for her to show cause why the 250 shares of stock should no£ be surrendered to the sheriff, to be sold to satisfy the banks’ judgments. Here the relief asked was that the order for the delivery of the rice to Banta, garnishee, be declared null, or annulled, and that it be delivered subject to seizure under the attachment. In this respect the demands in the two cases, if not practically identical, are at least quite similar.

In their petition in the rule, it was also alleged that the stock standing in the name of Mrs. Lagrone had been transferred by her husband without consideration by a fraudulent dation en paiement, which was null, not only because it was made without consideration, but also because the stock had never been delivered to Mrs. Lagrone—in substance and character, the same averments which appear in this case in the rule issued against the garnishees. Mrs. Lagrone, after excepting to the jurisdiction of the court, which is not a feautre of this case, pleaded that the banks’ proceeding was a collateral attack on the dation en paiement transferring the stock to her, and that the banks had no cause or right of action, which is precisely the attitude of defendant Banta in the present action.

In summing up the contentions, Chief Justice O’Niell, the organ of the court, said:

“The purpose of citing Mrs. Lagrone was not to obtain a personal judgment against her. The purpose was merely to determine the ownership of the stock, which was seized in the possession, virtually of the insolvent debtor. For that purpose it was not necessary for the banks to bring a revocatory action at the domicile of Mrs. Lagrone.”

Here the object of the rule was merely to have the ownership of the rice determined, which had been placed in the hands of Conrad, garnishee, under an order of delivery alleged to have been given to cover up either a pure simulation, a fraudulent preference, or a transfer lacking the essential requisite of delivery before seizure.

We are of the opinion that as the defendant Broussard, Banta and 'Conrad, garnishees, were all brought into court under the rule, that the issues therein presented . were legitimately before the court, and could be passed upon without the useless formality of compelling plaintiff to resort to a separate proceeding under the revocatory action, which was, prior to the enactment of Act 46 of 1886, an essential requirement in suits of this character.

ON THE MERITS

The district judge found that at the date of the pretended transfer of the rice to Banta, the debts Broussard owed amounted in the aggregate to the sum of $2,200. Counsel for defendant say that if Broussard owed the Smardon note, his total liabilities were about $2,100. We do not see why his obligation represented by the Smardon note should be eliminated from the debts Broussard owed at that time, which show that he was in debt at about the amount fixed by the district judge.

Counsel for Banta cite C. C. 1985, which says:

“By being in insolvent circumstances is meant, that the whole property and credits are not equal in amount, at a fair appraisement, to the debts due by the party. And if he, who alleges the insolvency shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount.”

It was therefore incumbent upon Banta who had bought from Broussard, the alleged insolvent, to show that he had property at a fair appraisement, at least equal in amount to his debts.

At the time of the transfer Broussard was the owner of a McCormick Deering tractor, one Fordson tractor, one disc, one harrow, and the 164 sacks of rice in dispute. This machinery, it may be appropriate to remark, had been in use for some time. He also had an automobile, but this auto was in Texas where Broussard had removed. He said he paid cash for that auto. His own letters to Himel and Le Bourgeois show that he could not pay his debts, as also appears from the facts of the case, which make it impossible to believe that Broussard had acquired this auto for a cash consideration.

Banta says this McCormick tractor had been in use for two years, but fixes its value at $850, and upon which rested a chattel mortgage for $500. He placed no estimate on the Fordson tractor, disc and harrow. The only appraisement of the last-mentioned machinery we find in the record was that made for the sale under the seizure by Le Bourgeois. In the appraisement for the sale, the Fordson tractor is listed at $250, the harrow at $15, and the disc at $75. It also appears that at the sheriff’s sale under the attachment, the Fordson tractor, although offered at two-thirds of its appraised value, was not sold for lack of a bidder, and that the disc and harrow, which had been appraised at $90, were bought by plaintiff bank, seizing creditor, ior $60. The rice in contest was not worth on the market over $2.50 per sack, the total value for the 164 sacks being about $410. Counsel for defendant would also have us include in that valuation $1,000 or more in cash, which they contend Broussard had in his possession at the time. This, according to Banta, he was supposed to have from money realized from the sale of rice belonging to Banta. It was for the price of the rice which Broussard had sold that Banta had taken in payment the rice under seizure, if we are to believe him. In making his estimate of Broussard’s assets, Banta includes the value of the rice in contest and the $1,000 or more above mentioned and referred to in counsel’s brief. If Broussard gave the rice in part payment of his debt for Banta’s rice he had sold, the value of that lot of 164 sacks could not be figured upon in the calculation made in support of his' solvency. Including the rice seized as an asset, the tangible property belonging to Broussard egualed about $840, the amount which was found by the trial judge.

The court in its reasons for judgment says:

“Banta knew Broussard’s inability to pay his debts, and of his insolvency, at the time of the transfer.”

In addition to the facts to which, we have referred and to the foregoing statement of the court, there are letters in the record from Broussard which show that he was unable to pay his debts. There is no doubt that he was in a state of insolvency, which however, he denies in his testimony taken under commission.

Banta testifies that Broussard had sold his (Banta’s) rice for $2,703.70; that after paying expenses to gather the crop, and paying Barras, a helper, Broussard gave him a check for $850, leaving a balance of $1,121.45 due him by Broussard. It is in part payment of that amount that he says he took the rice in dispute, which had been milled at Conrad’s Mill in New Iberia. He says his settlement with Broussard was made at his home, which the record shows was in Jeanerette, La. According to Banta, he took 232 sacks in payment from Broussard at the mill, although the evidence shows that Broussard had only 164 or 169 sacks there; and, according to Banta’s evidence, this was all Broussard had received for his share after settling with Barras, who had assisted in harvesting the crop. Banta says he took the rice at $3 per sack, although it is shown that rice was not worth at the time over $2.50 a sack. The deal according to Banta, was effected at his home at Jeanerette. It does not appear that he had inspected that rice, and had seen to its quality before taking it at a price in excess of its market value, and from a debtor he claims had some $1,100 in cash at that time, and who was perfectly solvent. With all this pretended faith in the solvency and also integrity of his debtor, Banta says, however, in referring to Broussard:

“I wanted to get what was mine; he might not be able to ipay me.”

It 'is extremely doubtful that Broussard was in debt to Banta for the amount claimed by him in any sum whatsoever. The transaction seems to have been a pure simulation, which had been carried out to defraud plaintiff bank. If not a simucreditor, to the injury of his other creditors.

The proof shows that Broussard and Banta had been close associates in business for three years prior to the transfer in question. It also appears that while Broussard was sick in New Orleans, Ban-ta had obtained an extension of 30 days on the note sued upon, thus prolonging its maturity to November 1, 1927; and strange to say, just one day prior to the date of the pretended transfer on November 2, 1927. Broussard, according to Banta, had been given a free hand in selling the latter’s rice crop, and Banta, who had obtained an extension of time on Broussard’s rent note, was aware of a debt Broussard owed the International Harvester Company, from all of which, and other circumstances of the case unnecessary to mention, we must conclude that Banta knew of Broussard’s insolvency when he claims to have acquired the rice. Santa therefore obtained a preference from Broussard, known to him as being insolvent, which lays the contract for the transfer of the rice open to annulment. C.C. 1983; Lothrop vs. Goudeau, 142 La. 348, 76 So. 794; Grossman’s Sons vs. Chachere, 136 La. 671, 67 So. 545; Ventrilla vs. Tortorice, 160 La. 522, 107 So. 390; Swain vs. Kirkpatrick Lumber Co., 143 La. 30, 78 So. 140, 20 A. L. R. 665.

And even if Banta did not have positive knowledge that Broussard was insolvent, the circumstances are such that they cannot fail to produce the impression that he was aware of it, and this suffices to lay the contract open to annulment under article 1983, Civil Code; De Blanc vs. Martin, 2 Rob. 38; J. Grossman’s Sons vs. Chachere, 136 La. 666, 67 So. 545.

The judgment is therefore affirmed.

Por opinion on rehearing, see 10 La. App. 801.


author: JANVIER, J.

text:
    No. 10,790
    Orleans
    PETTY v. JONES
    (April 1, 1929. Opinion and Decree.)

      Alexis Bryan, of New Orleans, attorney for plaintiff, appellant.
    J. Warren Woodville, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit by a subcontractor against the owner of the property in and on which the work was done.

The main contract was between the owner, defendant here, and the Gaiennie Company, Ltd., and the work to be done was the furnishing and installing of a low-pressure, steam heating system, in the premises owned and occupied by defendant.

The main contract was not in writing, no bond was secured, and no recordation of any kind was made in the mortgage office.

The sub-contractor, plaintiff here, was employed by the main contractor to construct a heater pit, that is, a room slightly below the level of the ground floor in which the boiler itself, and the heating equipment was to be installed.

An exception of no cause of action was sustained by the trial court. The exception was based on three contentions:

That the furnishing and installing of a low-pressure, steam heating system does not come within the language of Act 139 of 1922, which makes the owner, who, does not require a surety, liable to the same extent as the surety would have been, where a contract is made and entered into “for the repairing, construction, erection, or the reconstruction of a building or other work.”

The second contention is based on the fact that the plaintiff’s petition shows, that although the work done by him was completed in November, 1923, he did not record his .lien in the mortgage office until August 13, 1924, and that his petition fails to show that the attested account was served within thirty days of the filing in the mortgage office of the acceptance by the owner.

The third contention is—that the plaintiff’s petition fails to allege that the affidavit required was served on the owner, or the architect, or her representative.

We will first take up defendant’s contention that there is nothing in the petition to show that the work in question, “the furnishing and installing of a low-pressure, steam heating system,” was such as to entitle the contractor, sub-contractor, etc., to a lien on tlie property, or to a claim against the owner, even conceding that all of the necessary notices and affidavit had been properly served and on time.

The trial judge found that a steam heating system is no more an integral part of a building than a radio, frigidaire or phonograph. It is argued that the Court cannot take judicial notice of the fact that a steam heating system consists of a boiler and a burner which is located in one room, and pipes that run to all rooms in the building, with radiators located in all rooms and usually a specially constructed flue or chimney. Such an argument, we believe, does violence to the intelligence of the Court, and if sound, would require judges to eliminate from consideration, facts of which they have knowledge, not in regard to that particular case, but as a matter of general information.

If a petitioner alleges that as subcontractor he installed a roof on a building, we know that the roof is an integral part of the building, without any allegation in the petition to this effect. We, likewise, know that a steam heating system permeates the entire building, with pipes and fixtures, and that the installation thereof requires the cutting of holes in walls, ceilings and floors.

Regardless, however, of any knowledge that we may have, as to what constitutes a steam heating system, it is fair to assume that the contract contemplated by the sub-contract, which is attached to the petition, is work made necessary and required under the main contract.

This sub-contract requires the digging of a pit, the concreting of walls, the waterproofing of the walls, the construction of a wooden stair from the floor of the pit to the first floor of the building, the installation of a window and frame in the outside wall, all of which is work plainly contemplated by Act 139 of 1922.

It is true that this Court, in Dixie Building Material Company, Inc., v. Chartier, 8 La. App. 469, said:

“We are in accord with the defendant in holding that the Sunbeam Heater does not constitute ‘materials,’ which went into the building as part of it. The evidence is that the heater rests upon the floor like an ordinary stove and that its smoke pipe is inserted into a crock in the wall to carry away the smoke. No part of the heater is attached permanently to the building with plaster, mortar or nails; it can be removed without breaking or injuring any part of the building.”

A steam heating plant is entirely different from a “Sunbeam” heater, in that while a “Sunbeam” heater, as the Court said in the Chartier case, rests upon the floor, like an ordinary stove, and is not attached permanently to the building; the steam plant, on the other hand, is attached to the building in many ways, and upon installation becomes a part of the building itself.

Our conclusion is, that upon the first point urged, the exception of no cause for action is not well founded.

The second point is not so readily disposed of. Passing over, for the moment, the question raised by the third contention, as to whether the attested account was served on the proper person, we will first discuss the claim, that even if it be conceded that the petition shows that the account was served on the proper person, it does not show that it was served within the time limit set by the statute.

The act requires that the account be served “within thirty days after the registry of the notice with the recorder of mortgages, for the parish where the work is done, by the owner of his acceptance of the work, or of the contractor’s default, or the recordation of the architect’s certificate of completion, until which time the delay to file claims or privileges shall not run.”

There is in the petition no allegation that the service of the account on the owner, or his architect, or his representative, was made within thirty days, nor is there an allegation that the owner, at any time, filed his notice of acceptance.

A casual reading of the opinion of the Court of Appeal for the Second Circuit in Merriwether Supply Company vs. Baugh, 6 La. App. 730, would give the impression that that case is decisive of the question presented here because there the Court said:

“But plaintiff failed to allege that it mailed or otherwise, sent to Mrs. Baugh, the owner, or her architect, or other representative, a sworn, itemized statement of its amount, or that it recorded a sworn statement of the amount thereof, or its contract in the office of the. recorder of mortgages in the parish in which the work was done within thirty days after the registry of notice of the acceptance of the work.”

The real fact upon which the decision turned, however, was that plaintiff not only did not allege that the service had been made within the thirty days, but did not allege that it had been made at all.

Since the statute makes the service of an account prerequisite to holding the owner liable, it is manifest that the failure to allege any service at all, is a fatal omission; and since, in the Baugh case, the petitioner failed to allege any service there was no necessity for the Court to include in its remarks the words: “Within thirty days after the registry of notice of acceptance of the work.”

Since then, in the Baugh case the exception was aimed at the fact that there was no allegation that the service on the owner had been made, whereas, the exception here is aimed at the fact that the allegation although it does set forth service, does not set forth the time of service; it is quite evident that the case is not controlling here even by authority of reason.

In Dixie Building Material Company, Inc., vs. Chartier, supra, this Court, held that the furnisher of materials who fails to serve the account within the time limit loses the right to a lien on the property, but, nevertheless, is not, by such delay, deprived of his claim against the owner personally.

The decision in the Chartier case was based on the provisions in the statute to the effect that the owner who does not require a bond, or who fails to record the contract and bond “shall be liable * * * to the same extent as the surety would have been.” This Court felt that under the many decisions of this, and the Supreme Court, a surety is not relieved of his liability to the materialman, merely by reason of delay on the part of the materialman in recording his lien and serving his account, and, since the owner, where there is no surety, is liable to the same extent as the surety would have been, then, in such case, the owner should not be relieved of liability, by reason of such delay on the part of the materialman or the sub-contractor.

In Shreveport Building & Loan Association vs. Whittington, 141 La. —•, on rehearing, the Supreme Court said:

“The mistake which the learned counsel for the surety company make is in not distinguishing between the owner, between whom and the materialman there is no contractual relation, on whose part there is no liability, except that created by law against, or without his consent, and the surety company who has voluntarily entered into a contract to pay the material-man in case the contractor does not and has received a consideration for thus engaging itself.”

However, whether the owner who does not require a bond stands always in the same situation in which the surety would have stood is nof material here, because we believe that under the facts alleged, there is created a presumption that no acceptance was filed by the owner, in the mortgage office, and that, therefore, from the time within which the account should be served and the claim should be recorded has never commenced to run.

It seems to us that where it is alleged that no contract was recorded in the mortgage office, there is a presumption that no acceptance of the contract was recorded. Of course, we concede that there might have been an acceptance recorded where there was no recordation of the contract, but experience shows that these cases are few and far between and that the usual practice is to follow the act in full or not at all.

The statute contemplates a regular, orderly method of procedure commencing with the recording of a contract and bond, and terminating with the acceptance of that contract, and we deem it fair to assume that if it is alleged that no contract was recorded, the presumption follows that no acceptance was recorded.

We now come to defendant’s third contention, which is that there is no allegation that the owner, or the architect, or the owner’s representative was served with an attested account.

Section 2 of Act 139 of 1922, among other things, provides: “That every person having a claim * * * must send a sworn, itemized statement thereof to the owner, or his architect or other representative.”

We find in this petition the following allegation:

“George W. Stem was represented to your petitioner prior to and during the construction as being the owner of 7724 Burthe Street, and accordingly, on August 13th, 1924, your petitioner caused to be made out and recorded, an affidavit, setting forth petitioner’s said claim against the owner of said property and caused the original copies of said original affidavit to be sent to said Gaiennie Company, Ltd., then in the hands of J. A. Gaiennie, Receiver, and to George W. Stem, who resided on the premises in question, 7724 Burthe Street, where at the same time, the said Mrs. Irene C. Jones, also resided.”

Does this allegation show compliance with the requirements of the statute?

If the exceptions relied upon had been directed at the vagueness of the allegation, it is certain that plaintiff should have been ordered to amend, and to set forth more accurately the connection or legal relationship between Stem and defendant. Since plaintiff may be able to show that Mrs. Jones herself represented Stem to be the owner, and since that proof would be admissible under the allegation, we do not think that the exception of no cause of action should, on this ground, be sustained. Furthermore, the objection is directed only at insufficiency of allegations of fact and in recent years, the Courts of this State have been very liberal in allowing amendments where exceptions are based solely on insufficiency of allegation.

Under such circumstances, even if we felt that the exception should be sustained, a judgment rendered accordingly would be in effect a judgment of non-suit, and a judgment of non-suit would do no more than delay the proceedings and add to the costs, because prescription would have been interrupted by the suit which is now before us for decision, and the plaintiff could immediately recommence proceedings by filing a new suit.

'As the Court of Appeal for the Second Circuit said in Smardon vs. Broussard, 6 La. App. 579:

“As we have hereinabove stated, the suit was dismissed on an exception of no cause of action for lack of essential allegations in the petition, and before any evidence whatsoever was offered on the merits. Clearly this dismissal was grounded on defective pleadings on the part of the plaintiff. A dismissal for that cause ’ has been repeatedly held to be in effect, a judgment of non-suit. Woodruff vs. Producers Oil Co., 142 La. 368, 76 Sou. 803; Carolina Portland Cement Co. vs. Southern Wood D. & F. Co., 137 La. 469, 68 So. 831.”

The question of allowing an amendment to pleadings where the amendment is made necessary not by any inherent absence of a right to action, but merely by reason of the fact that the pleader has not made sufficient allegation of fact, has been before the Courts of this State innumerable times, and in all such cases, the Courts have held that the amendment should be allowed, if it did not change the issue, but merely supplemented the allegations made in the original pleadings.

To this effect see Laenger vs. Laenger, 138 La. 532, 70 So. 501, in which Mr. Justice O’Neill, as the organ of the Court, said:

“There are two different classes of exceptions of no cause or right of action in our practice. One is founded upon the omission from the plaintiff’s petition of a necessary allegation of fact, which though not alleged, may nevertheless exist. The other, based on a complete statement of the case in the plaintiff’s petition, denies that the law affords the relief prayed . for. The distinction is observed in the effect of a judgment sustaining an exception of the one class or the other, 'and was recorded by this court in Baker vs. Frellsen (on rehearing) 32 La. Ann. 829; and in Ogelsby vs. Turner, 124 La. 1084, 50 Sou. 859, and in 127 La. 1094, 54 Sou. 400, by the Supreme Court of Tennessee in the case of Moore vs. Chattanooga Rwy. Co., 119 Tenn. 710, 109 S. W. 497, 16 L. R. A. (N. S.) 978; and by the Supreme Court of the United States in the Northern Pacific Rwy Co. vs. Slaght, 205 U. S. 128-133, 27 Sup. Ct. 442, 51 L. Ed. 738.
“Some authorities distinguish these demurrers by calling the former the exception of no cause of action and the latter the exception of no right of action.
“A judgment sustaining an exception of no cause of action, because of the plaintiff’s omission of a necessary allegation is not a bar to another suit on sufficient allegations.
“See Hart vs. Bowie, 34 La. Ann. 326; Succession of Herber, 119 La. 1064, 44 Sou. 888; New York Merc. Co. vs. W. M. Cady Lumber Co., 133 La. 729, 63 Sou. 304; Carolina Portland Cement Co. vs. Southern Wood Distillers and Fiber Co., 137 La. 469, •68 Sou. 831. But a judgment sustaining an exception of no right of action, aimed at the merits of the plaintiff’s demand, and assuming the case to be stated completely in the petition, is a basis for the plea of res judicata the same as if the judgment had been rendered on evidence in the case.”

Along these same lines we find a most interesting discussion by Mr. Justice Nicholls in Davis vs. Arkansas Southern R. Co., 117 La. 320, 41 So. 587, in the following language:

“The petition in this case is undoubtedly lacking in allegations which are customarily employed in actions such as the one before us. It is open to criticism in that respect, and should be properly amended. We do not think, however, that the missing allegations were of character such as to have warranted the drastic remedy of the dismissal of the suit being applied. The tendency of modern practice is to yield as little as possible to technicalities and to afford aid as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs.
“When the lawmaker in the Code of Practice established and classified exceptions of different kinds to be advanced at different stages of the suit, and to be followed by announced consequences, it was evidently intended that they should be resorted to under the circumstances stated, and be followed by the results declared. It was not contemplated that they should be replaced by sweeping blanket exceptions which would absorb and swallow up all the other exceptions and throw the plaintiffs summarily out of court. The exception of no cause of action in which no specific objections to the petition are set up and which remits the plaintiff to an ascertainment of what they may be to the trial of the exception, is calculated to work injury, and in many jurisdictions the defendant is required by express statutes to specify in detail what the objections are, so as to enable plaintiff an opportunity to remove the same. The exception in this ■ State is some time levelled at the allegations of the petition and some times it reaches back of the petition to the cause of action itself, but up to this time, it has never been exacted that the objections should be set' out specifically, but we should see that each exception should be made to perform the function properly appertaining to it, and not be allowed to have substituted for it another, and be lost, merged and confounded.”

In numerous cases amendments have been allowed where the issue was not changed thereby. See:

State vs. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772;

Commercial-National Bank vs. Smith, 150 La. 234, 90 So. 581;

James vs. City of New Orleans, 151 La. 480, 91 So. 846;

Sou. Iron & Equipment Co. vs. Cardwell Stave Co., 154 La. 109, 97 So. 332;

Wolff vs. Hibernia Bank & Trust Co., 161 La. 348, 108 So. 667;

Northwestern Bottle Co. vs. Rosen et al., 8 La. App. 284.

We are unable to find any case in which the appellate court, on its own motion, remanded the case so that a petition defective for insufficient allegation might be amended by the pleader, but it seems to us, since the modern tendency is to cut through technicalities and to avoid unnecessary delays and expenses, that, rather than sustain an exception of no cause of action in a case of this kind, the ends of justice would be better served by remanding the case, so that if the facts justify it, new allegations may be made.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided and reversed and that this case be remanded to the District Court for further proceedings not inconsistent with this opinion.

Cost of this appeal to be paid by appellee.


author: WESTERFIELD, J.

text:
    No. 11,065
    Orleans
    McMAHON v. HARDIN ET AL.
    (April 1, 1929. Opinion and Decree.)
    Howell Carter, Jr., and F. B. Freeland, of New Orleans, attorneys for plaintiff, appellant.
    Merrick, Schwarz, Guste, Barnett and Redmann, of New Orleans, attorneys for defendant, appellee, Mrs. L. M. Valiente.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellee, Dr. Jos. A. Hardin.
   WESTERFIELD, J.

This is a suit by a private detective on a quantum meruit for the alleged value of his services, which he places at $2,000.00. The defendants, Joseph A. Hardin and Mrs. Louise Valiente, were formerly man and wife, having been separated by a decree of divorce based upon the adultery of the husband. The plaintiff was employed by the wife for the purpose of procuring evidence of the husband’s adultery. His efforts at first being unsuccessful, the wife filed suit for a separation upon the ground of cruel treatment on February 15, 1923. This suit, however, was abandoned and the parties resumed marital relations. The reconciliation did ' not prove permanent, and on November 23, 1925, Mrs. Hardin brought another suit against her husband, this time for divorce, upon the ground of adultery, plaintiff having in the meantime secured satisfactory evidence of the husband’s guilt, upon which evidence a decree dissolving the marriage was based. A separation of the community of acquets and gains followed.

The husband and wife were'sued jointly. The wife is alleged to be liable for the compensation claimed by plaintiff upon the ground that she engaged his services, and the husband, because he was the head and master of the community formerly existing between himself and his divorced wife, and, as such, responsible for necessary expenses incurred by the wife in obtaining a legal separation and divorce.

A number of defense are presented, some of which pertain only to Dr. Hardin and some only to his wife. The one which we will first consider is available to both defendants, since it involves the character of the contract, as being contra bonos mores.

The record shows that the plaintiff was employed to get evidence of the husband’s infidelity. His only hope of compensation lay in the dissolution of the marriage and the division of the community property, since, as the record plainly shows, he knew the wife was possessed of no paraphernal funds. His testimony exhibits great impatience with the wife^s conduct in delaying divorce proceedings, after he had obtained what he regarded as sufficient evidence of the husband’s adultery, which, he testifies, she often condoned. In other words, plaintiff’s compensation was contingent upon his procuring evidence to establish the husband’s misconduct and upon the continued determination of the wife to make use of such evidence, for the purpose of dissolving the marriage. The legal question, therefore, is whether a contract of this kind is enforceable and not repugnant to public policy.

It has been held that attorney’s fees in separation and divorce suits are recoverable against the community. Purser & Magruder vs. Baientolila, 152 La. 716, 94 So. 366, 25 A. L. R. 348; Gosserand vs. Monteleone, 159 La. 316, 105 So. 356, 42 A. L. R. 310; Id. 164 La. 397, 113 So. 889; Lester vs. Lester, 160 La. 708, 107 So. 499.

It is said that the analogy between attorney’s fees and detective fees is very close, since both are essential to the exercise of the right conferred by law to obtain legal separation under certain conditions.

We do not think so and can find no similarity in a contract for legal services and one for the procuring of testimony to establish certain facts essential to the dissolution of the marriage.

“Contracts so framed as to have effect only on condition that a divorce between the parties should be granted are held illegal, as their object is to interest the party to be benefited in procuring or permitting a divorce. * * *
“The fact that such a contract is supported by other and valid consideration will not relieve it of illegality.
“An agreement between attorney and client as to compensation is not illegal, although contemplating a proceeding to secure a divorce, unless it involves the personal interest of the attorney in preventing a reconciliation between the parties, as where it is contingent on success, or is measured by the amount of alimony secured.” 13 Corpus Juris, page 464.
• “If the object of a contract is to divorce man and wife the agreement is against public policy and void. The reason of the repugnance with which the law views all contracts with the purpose of dissolving the marriage relation may be found in its regard to virtue, the good order of society, the welfare of the children as the fruit of the marriage, and the sacred character of the conjugal relation. * * 13 Corpus Juris, page 463.

Contracts in restraint or derogation of the marriage relation are against public policy and void. So, also, is an agreement not to marry; a contract to bring about a marriage; a contract to hasten an intended marriage; a contract between a husband and wife contemplating a future separation; an agreement by which a wife undertakes to pay her attorney, in a suit for divorce and alimony, a certain percentage of whatever property may be awarded her out Of her husband’s estate. (See Elliott on Contracts, volume 2, section 753 et seq.) ,.

In Hall vs. Cartwright, 18 La. Ann. 414, it was held thqt “public policy, good, morals and the highest interest of society require, that the marriage relation should be surrounded with every safeguard, and their severance, allowed only for the causes specified by the law, and clearly proven.” See, also, Barringer vs. Dauernheim, 127 La. 679, 53 So. 923.

In the Succession of Elliot, 2'8 La. Ann. 183, it was held that an item of $500.00, charged by Elliot’s attorney for having, among other services rendered, “ ‘entered upon the business of securing evidence’ for a contemplated suit for separation between Elliot and his wife, which was never brought, cannot be regarded as legitimate. An attorney ought not to recover on such a demand.”

In Ruling Case Law, volume 6, section 164, page 757, it is said:

“It is not unlawful to make a contract to procure such evidence as may exist, as for instance to employ persons to search for material witnesses or for important documents which may have been lost.. But it 'is otherwise as to contracts to procure evidence or witnesses to prove a particular point or issue or such as enable a person to win or settle a suit. Contracts to pay for collecting or procuring testimony to be used in evidence, coupled with the. condition that the contractee’s right to compensation depends on the character of the testimony procured or upon the result of the suit in which it is to be used, have been universally condemned by the courts as contrary to public policy, for the reason that such agreements hold out an inducement to commit fraud or procure persons to commit perjury.”

In a very late case, Weil vs. Neary, decided January 2, 1929, reported in the U. S. Supreme Court Advance Opinions of January 15, 1929, page 171, the Supreme Court denounced a contract for the division of fees between counsel for creditors of a bankrupt and counsel for the trustees upon the ground, that such contracts were opposed to public policy, saying:

“The chief argument that is pressed upon us to declare the contract valid and to sustain the judgment based upon it is the success with which the plaintiff is found to have worked óut a useful settlement of the estate for the benefit of the creditors, and the absence of any finding or showing that there was actual fraud. But this is not a sufficient answer to the charge of illegality. The contract is contrary to public policy—plainly so. What is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases. Even if the ultimate results in the management of the Thompson estate were good, that could be no excuse for a contract plainly illegal, because tending to produce the recognized abuses which follow fraud and disloyalty by agents and trustees. Enforcement of such contracts, when actual evil does not follow, would destroy the safeguards of the law and lessen the prevention of abuses. Providence Tool Co. vs. Norris, 2 Wall. 45, 17 L. Ed. 868; Woodstock Iron Co. vs. Richmond Extension Co., 129 U. S. 643, 9 S. Ct. 402, 32 L. Ed. 819; Oscanyan vs. Winchester Arms Co., 103 U. S. 261, 26 L. Ed. 539; Meguire vs. Corwine, 101 U. S. 108, 25 L. Ed. 899; Connors vs. Connolly, 86 Conn. 641, 86 A. 600, 45 L. R. A. (N. S.) 564; Richardsop vs. Crandall, 48 N. Y. 348; Palmbaum vs. Magusky, 218 Mass. 306, 308, 104 N. E. 746 (Ann. Cas. 1915D, 799).”

The law looks with kindly .eye upon the ancient and honorable institution of matrimony. It regards with benevolent satisfaction the esteem in which the marriage relation is held by its fellow-servant, religion, though it does not subscribe to the concept dear to every religious heart concerning the celestial origin of the contract of marriage. It would encourage, without precipitation, individuals eager to assume conjugal relations; it would direct, momentarily at least, the attention of the high contracting parties prone to view only the beatitudes of marriage, to a contemplation of its responsibilities. It would emphasize the fact that the contract of marriage is commutative, not aleatory. However, when the contract has been entered into, it is dignified as a status, which is intended to be permanent, as human institutions go, and no undertaking by third persons to destroy that status will be countenanced.

We believe the contract to be unenforceable as against public policy.

It is unnecessary to consider the other defenses which have been offered.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 2639
    Second Circuit
    DE SOTO MERCANTILE CO., INC., v. SEBASTIAN
    (April 5, 1929. Opinion and Decree.))

      •Parsons and Colvin, of Mansfield, attorneys for plaintiff, appellee.
    William M. Pollock, of Mansfield, attorney for defendant, appellant.
   REYNOLDS, J.

Defendant, Dan H. Sebastian, as owner and holder of a check for $461.36, dated February 16, 1924, signed S. L. Carroll, Receiver, drawn on the Bank of Zwolle, Zwolle, La., and payable to D. H. Sebastian, endorsed the check in blank and delivered it to plaintiff, which duly presented it to the drawee for payment, and payment being refused, plaintiff brought this suit against the payee and endorser to obtain judgment for the amount of the check with legal interest from its date.

Defendant set up by way of defense that if originally liable he had been released from liability because the check had not been protested and he notified of its dishonor and because plaintiff had, without his consent, extended to the drawer time to pay the check after its dishonor, that he had received no consideration for the endorsement or transfer, and that he had endorsed it merely as an accommodation to plaintiff.

And assuming the character of plaintiff in reconvention he alleged that S. L. Carroll, Receiver, was indebted to him in the sum of $485.58 and had refused to pay him the debt because plaintiff was asserting that he was indebted to plaintiff for the amount of and on account of the check, and he prayed judgment in reconvention against plaintiff for that amount with legal interest thereon from February 16, 1924.

On these issues the case was tried and. there was judgment in favor of the plaintiff and against the defendant for the amount sued for and defendant appealed.

OPINION

Sec. 118 of the Negotiable Instruments Act (Act No. 64 of 1904) provides:

“Sec. 118. * * * but protest is not required except in the case of foreign bills of exchange.”

Section 129 of the Act provides:

“Sec. 129. An inland bill of exchange is a bill which is, or on its face purports to be, both drawn and payable within this state. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill.”

The drawer and drawee, and payee and endorser of the check were all residents of the State of Louisiana, and therefore the check was an inland bill.

The evidence shows that as soon as the check was returned unpaid to plaintiff it notified defendant of the fact and at his request plaintiff presented it for payment a second time and again it was dishonored.

Defendant’s endorsement of the check was without qualification, and it is provided in Section 66 of the Negotiable Instruments Act that every endorser who endorses without qualification warrants that it shall be paid by the drawee and if dishonored that he himself will pay it.

Aside from this, the transaction between plaintiff and defendant was a purchase by plaintiff and sale by defendant of the check and carried an implied warranty that there were funds on deposit in the drawee bank to meet it and that it would be paid on presentation (Civil Code, article 2501), and the seller was liable for the restitution of the price (Civil Code, article 2506).

“One who sells a credit or an incorporeal right, warrants its existence at the time of the transfer, even though there was no warranty expressed.”

Civil Code, article 2646.

'Said the Supreme Court in Corcoran vs. Riddell, 7 La. Ann. 268:

“But the Code is very stringent on this point, and has expressly provided that even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restoration of the price, unless the buyer was aware at the time of the sale of the danger of eviction, and purchased at his risk and peril. This principle of the contract of sale applies not only to the sale of corporeal things, but also to the sale of a debt.”

The defense that defendant was released from liability because plaintiff had allowed time to the drawer in which to pay the check is without merit. The contention is only a conclusion of defendant’s and not supported by the facts. Both I. C. Nelson, president of plaintiff company, and S. L. Carroll, the maker of the check, testified positively that no time for payment had been allowed.

Besides this, inasmuch as defendant was primarily liable as vendor of the credit he could not have been released even if the drawer or drawee had been extended time in which to pay. This would be so only in case defendant was only secondarily liable. (Civil Code, article 3061.)

The consideration for the sale was cash or its equivalent. Defendant was indebted to various persons and. at his request plaintiff paid with its own checks his debts to these persons, and paid him in cash the difference between the aggregate of these debts and the amount of the check. Defendant was logging the saw mill operated by S. L. Carroll, Receiver, and was indebted to his employees for work performed by them in that connection, and it was his debts to these employees that plaintiff paid with its own money and the money so paid and the difference between it and the amount of the check paid by plaintiff to defendant represents the consideration or price of the check.

The evidence shows that plaintiff was very considerate of defendant in the premises and did not institute suit against him for the debt until more than a year after the check was returned unpaid. This delay was a consideration shown defendant and was not time extended the drawer of the check in which to pay.

The District Judge who saw and heard the witnesses testify gave judgment for plaintiff, the judgment is correct, and accordingly it is affirmed.


text:
    No. 11,582
    Orleans
    FLOCKER v. KREEGER
    (April 1, 1929. Opinion and Decree.)
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    Spearing and Mabry; -and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Clyde L. Flocker, plaintiff, was struck by an automobile belonging to defendant and operated by his minor son.

On the night of the accident, and just before it happened, Flocker had stopped his car alongside the curb on Canal Street and had walked to its rear to see if there was anything wrong there, because certain persons who had passed in a car a moment before, had shouted -some unintelligible remark to him and pointed to the rear of his car.

He was standing just behind his car, which as we have stated, was immediately alongside the right-hand curb, when he was run into by defendant’s automobile and crushed between it and the rear of his own.

No serious defense as to liability was made and the matter is before us solely on the question of the quantum. The jury in the court below awarded plaintiff eight thousand, nine hundred and thirty-one and 30-100 dollars ($8,931.30). Apparently one thousand nine hundred and thirty-one and 30-100 dollars ($1,931.30) of this sum was allowed for actual damages, such as medical and hospital bills, etc., and seven thousand dollars ($7,000.00) for pain, suffering, permanent injuries and impaired earning capacity.

Although no bones were broken, one of plaintiff’s legs was seriously crushed, and the flesh of the calf was torn away. On account of his weakened condition the surgeons deemed it advisable not to use anesthetic in trimming and replacing the torn flesh and ligaments, and there can be no doubt that plaintiff’s suffering during these operations must have been excruciating. It was necessary to drill holes in this torn flesh so that rubber tubes might be inserted in order to allow for draining the pus and blood, and for the application of antiseptic solutions.

Shortly after the initial dressing of this wound some of the flesh began to decay and in some places, gangrene set in. This decayed and gangrenous flesh had to be cut away, and each day, for nearly two weeks, some of it had to be severed by the use of scissors and other surgical instruments. For a time, plaintiff was informed that there was a grave possibility that amputation of the leg might be necessary.

After this condition began to improve, it was deemed advisable to graft over the wound, skin taken from plaintiff’s other leg. For this purpose more than forty small pieces of skin were removed from the other leg, and, unfortunately, during the course of these grafting operations, gangrene and decay set in, in the flesh and skin of the other leg. It was very difficult to stop the progress of this decay and the treatment was, unquestionably, very painful to plaintiff.

He remained in the hospital for more than two months, and after his removal to his home, was confined to his bed and to a wheel chair for another sixty days, or more. Shortly after he returned home, he contracted pneumonia, and, as a result, for about ten days was in a serious condition.

The physicians testified, that the injured leg, at the time of the trial, had not completely healed and that an ulcerous condition had set in which was most difficult to cure. It was thought hy the physicians that this condition resulted from the fact that the lacerations sustained had interfered with the normal functioning of the secondary circulatory system. The physicians also testified that the pneumonia had probably resulted from the general weakened condition of plaintiff and the consequent breakdown of his powers of resistance.

The use of the legs, at the time of the trial, had not been entirely regained and it is doubtful if they will ever completely recover their free and normal usefulness.

Plaintiff’s family physician describes his injuries as follows:

“It was a very extensive lacerated wound of the right leg, which • began just below .the knee in the region known as the popliteal, through that region, through the calf of the leg. There were several openings, I think, four or possibly five, through which small rubber tubes, about the size of a cathode, were inserted; these tubes are known as Dakon tubes, through which Dakon solution is allowed to run to antisepticise the wound, which I should judge, taking the upper limb, was at the popliteal space and extended to about the middle lower third of the leg. Several stitches had been put in the skin and they were already beginning to show signs of sloughing. He had severe contusions of the right arm, but the picture that overshadows all these contusions was the terrific laceration of the calf of the right leg; it was so extensive that it overshadowed everything else, and, as that was the thing we were afraid of would give him trouble, the others were passed over lightly. We continued to Dakonize the wound in the leg for two or three days until the sloughing and the stitches could be removed, and a few days after, large areas of skin, superficial tissues were taken off to economize cutting with the scissors. That would happen every day or two, we would remove more and more of the gangrenous tissues for ten or twelve days, until finally all the' gangrenous tissues were removed and that left a large area of muscular tissues exposed to view. We took off the gangrenous tissues with tissue forceps and scissors and bathed the cavity with Dakolin. We gave him no sedatives during the cutting of this gangrenous tissue nor during the actual removal.”

Defendant argues that the removal of skin from the other leg and the contracting of pneumonia were not the results which normally follow accidents such as the plaintiff sustained, and, therefore, they were not results ordinarily contemplated, and for that reason, defendant should not be called upon to compensate plaintiff for these items of damage.

We cannot agree with defendant in this regard. It may be, that, ordinarily, a person injured in an automobile accident does* not contract pneumonia, and, it may be, that as a general thing, a person who has one ■ leg injured is not required to have the skin removed from the other, but certainly these results were caused by the accident and are not so remote or speculative as to relieve defendant of responsibility therefor, since the physicians testify that, in their respective opinions, they resulted from the other injuries which were primarily caused by defendant’s son and chargeable to defendant.

It will thus be seen that plaintiff’s sufferings were intense and his injuries are to some extent, permanent.

Nevertheless, the amount awarded below seems to us to be somewhat out of line with awards heretofore sanctioned by us, or approved by the Supreme Court, and we believe that substantial justice will be done by allowing plaintiff the sum of seven thousand five hundred dollars ($7,500.00).

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount thereof to seven thousand five hundred dollars ($7,500.00) and, as thus amended, affirmed.


author: JONES, J.

text:
    No. 11,638
    Orleans
    DERBES v. BLACHE ET AL.
    (April 1, 1929. Opinion and Decree.)

      Edrington and Carmouche, of New Orleans, attorneys for plaintiff, appellee.
    Titche, Kiam and Titche, of New Orleans, attorneys for defendants, appellants.
   JONES, J.

Plaintiff sues J. Henry Blache in his capacity as a real estate agent for the return of $1,000.00, unpaid balance of a sum which had been deposited on October 9, 1925, by plaintiff to bind a contract for the purchase of a certain lot in this city. The impossibility of enforcement of the contract is alleged to have been caused by the fact that the offer to purchase was made by plaintiff to himself and is therefore worthless. The allegation is also made that defendant, on October 27, 1925, returned $1,000.00 of this deposit.

The surety on the bond of defendant was also made a party to the suit, but as he was never served he disappears from the case.

After filing exceptions of prematurity and no' cause of action, which were overruled, defendant answered, admitting his receipt from plaintiff of $2,000.00 as a ten per cent cash. deposit in his capacity as a real estate broker. He also admits that the property was never transferred and that he paid on October 27, 1925, $1,000.00 to plaintiff, but he asserts that this was a loan and not a return of part of the deposit.

After making the above admissions, 'defendant makes a reconventional demand or plea in compensation and prays for judgment against Derbes in the sum of $1,700.00, consisting of two items, as follows:

First, he avers that it had been orally agreed that the lot was to be sold to one Rosenberg for $22,500.00, and that he was to be paid a commission of four per cent of the selling price, which sum, amounting to $900.00, was to be deducted from the deposit here in contest.

Second, he claims that he was entitled to a commission of four per cent on the sale immediately involved herein, which would amount to $800.00, thus making his total of $1,700.00.

In addition to the above, he asserts various other claims, amounting to $4,521.60, and asks for an accounting thereon.

When this answer was filed Derbes filed a rule to show cause why judgment should not be rendered in favor of plaintiff on the petition and answer, and why the re-conventional demand should not be stricken out, because it did not grow out of and was in no wise connected with the main demand, as this suit was brought by a depositor against a depositary, and the relation was one of principal and agent, and no plea in compensation could be allowed.

The trial judge made the rule absolute and ordered the reconventional demand or plea in compensation stricken from the answer and gave judgment for $1,000.00.

The only question before this court is the correctness of this ruling.

In addition to the facts above stated, we gather from the pleadings the following facts:

On October 9, 1925, the defendant entered into an oral agreement with plaintiff, by which, plaintiff and defendant were to work together in a proposed real estate transaction. Plaintiff agreed to make an offer to purchase, through defendant, a real estate broker, from Rieth, the owner, a lot of ■ ground on Pontchartrain Boulevard in this city, for $20,000.00 cash. Accordingly, defendant had Rieth sign the acceptance of the intended offer and the promise to pay a four per cent commission in blank. Then defendant filled out the blank offer and had plaintiff sign it.

Through error, this offer was made on the form of plaintiff, and therefore it now reads an offer made by Derbes to himself, and the name of J. H. Blache does not ap-’ pear in it. The pertinent parts of the agreement, which is filed in the record, read as follows:

“New Orleans, La., 10/9/25. “To P. J. Derbes,
“Realtor,
“City.
“Dear Sir:
“I hereby offer the sum of Twenty Thousand ($20,000.00) Dollars cash for the % Unit (42 lots) situated on West End Shell Road * * *
“Immediately upon acceptance of offer by owner I bind myself to deposit with you a ten per cent of the purchase price and to take the property at the above terms, if a good and valid title can be given. * * *
“PURCHASER’S SIGNATURE “(Signed) P. J. Derbes
“I the owner of the above property accepts the' above offer and agrees to pay to P. J. Derbes Four Per Centum (4%) for services rendered. I further agree to furnish a good and valid title and bind myself to pay the specified commission.
“OWNER’S SIGNATURE “(Signed) Frank Rieth, Jr.,
“4 per cent.”

Failing to note the error in the above document, plaintiff deposited the $2,000.00 on October 9, 1925, to bind the sale.

Rieth later refused to take any further steps, evidently regarding the offer as a nudum pactum, and on October 27, 1925, defendant paid back to plaintiff the sum of $1,000.00. Shortly thereafter plaintiff in this suit filed in the Civil District Court a suit against Rieth for specific performance, but he subsequently abandoned the case and the suit was dismissed.

Then defendant filed suit against Rieth for his commission of $800.00 on the above contract. In this suit there was judgment against Blache and he appealed devolutively to this court, where the matter is still pending.

When Derbes, the intending purchaser, dismissed his suit against Rieth, the tentative contract above outlined (if it ever had any validity, which is doubtful) became unenforceable, and we fail to see, therefore, how Blache, whose name does not appear in the contract, can possibly secure any commission from Rieth, when one of the essential parties to the contract has admitted its invalidity.

As there is no reference to any proposed sale to Rosenberg, and as all contracts with reference to sales of real estate must be in writing, we do not see how that agreement can be connected with the demand made herein. Here plaintiff and defendant agreed to go into a real estate transaction together, and plaintiff deposited $2,000.00 to bind the contract. As the contract has proved unenforceable, plaintiff demands the return of his mCmey from his agent. This was a fund dedicated to a special purpose and that purpose having failed, the money should be returned, unless there is some special instruction or agreement changing the ordinary rule that compensation can not be pleaded between depositor and depositary.

The pertinent part of Article 375 of the Code of Practice reads as follows:

“In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main demand, be, nevertheless necessarily connected with and incidental to the¡ same; as, for instance, the demand instituted by the possessor in good faith against him who sues in order to evict him or for the purpose of obtaining the payment of the improvements made on the premises. * * *”

In the case of Fagot vs. Porche, 7 La. Ann. 562, the Supreme Court said:

“The absence of all connection between two demands is an insurmountable objection to a - demand in compensation or re-convention.”

Article 2956 of the Civil Code states that the depositary cannot withhold the thing deposited on pretense of a debt due to him distinct from the deposit. Article 2209 says debts are compensable only when they are equally liquidated and demand-able.

In Hancock vs. Citizens Bank, 32 La. Ann. 592, Justice Fenner uses the following language:

“Repeated adjudications in the jurisprudence of this State have placed beyond the domain of further controversy the principle that ‘compensation does not take place in the confidential contracts arising from irregular deposits, such as the deposit of money with a banker, and the depositary is not authorized to apply the funds on deposit in his hands to the payment of debts of the depositor, except there is a special mandate from him.’ Morgan vs. Lathrop, 12 La. Ann. 257; Breed vs. Purvis, 7 La. Ann. 53; Bludworth vs. Jacobs, 2 La. Ann. 25; Bogert vs. Egerton 11 La. Ann. 73; Murdock vs. Bank, 23 La. Ann. 116.”

In Breed vs. Purvis, Wood & Co., 7 La. Ann. 53, the Supreme Court held that “one who has received money on deposit cannot plead compensation against the depositor for a debt which did not arise from the deposit.” On this point see, also, the following cases:

Bogert vs. Egerton, 11 La. Ann. 73;

Vincent vs. Gandolfo, 12 La. Ann. 526;

Gordon vs. Muehler, 34 La. Ann. 606.

Defendant in his brief quotes various cases decided by the Supreme Court in its early days, some of them before the Code of Practice was adopted). We do not consider these decisions applicable here, as none of them go to the extent required to sustain defendant’s position, and the limitations of Article 375 of the Code of Practice have been more clearly set by the later decisions as quoted above.

For above reasons the judgment is affirmed.